Increased Powers to Penalise Pollution in Europe

If a vessel pollutes the waters within the Exclusive Economic Zone (EEZ) of a country but does not call at any of that nation’s ports, it has not always been clear who has the right to impose penalties. 

A recent European Court of Justice (ECJ) decision provides some clarity on this matter. The judgment permits European coastal states to detain and penalise ships for breaches of MARPOL that occur in their EEZ even if the ship did not otherwise call at any of its ports.

The case involved a bulk carrier that spilled oil when passing about 30 km off the coast of Finland. Therefore the ship was within the Finnish EEZ but not its territorial waters. No counter-pollution measures were undertaken by the Finnish authorities and the slick was not observed to reach the coastline or to have caused any specific damage to the environment or Finnish property.

Several days later, the vessel returned through Finland’s EEZ and was detained by the Finnish Coast Guard for two days until the shipowner provided security in the relatively small amount of €17,112. A fine was later imposed by the Finnish courts for that same amount. 

This penalty was challenged by the shipowner and brought to a Finnish maritime court. This first instance court dismissed the action and the subsequent Court of Appeal dismissed the appeal, but the Finnish referring courts sought clarification from the ECJ on a number of questions. 

Of most interest to shipowners, it was questioned whether Finnish courts had jurisdiction over pollution incidents occurring in Finland’s EEZ and whether Finland had the right to interfere with the ship’s passage through the EEZ in such circumstances.

The ECJ ruled that a coastal state can interfere with the ship’s right of free passage where:

         i. the coastal state has clear objective evidence that a foreign vessel is the source of a discharge that breached MARPOL pollution regulations; and

        ii. the breach caused or threatened to cause major damage to the coastline or related interests of the coastal state or to the resources of the coastal state

Furthermore, the ECJ ruled that “resources” can be very widely defined so that, effectively, damage or a threat of damage to anything at all within the EEZ is enough to trigger the coastal state’s jurisdiction.

It is likely that other EU nations will now start to use this ECJ judgment to assert rights of enforcement over incidents occurring within their EEZ.

Author: Peter Scott 
Senior Executive (Claims)