Interpreting ‘en route’

Recent incidents in the Netherlands and Germany have shown that different interpretations of “en route” in MARPOL Annex II can leave seafarers unsure of when operational discharges are allowed.

Under MARPOL Annex II, noxious liquid substances may be discharged if, amongst other things and subject to the approved categorisation of the liquid in question, the vessel is proceeding en route at a speed of at least 7 knots in the case of self-propelled vessels (at least 4 knots in the case of ships which are not self-propelled).

En route is defined in the current form of Annex II, Reg 1.6 as:

“the ship is under way at sea and on course or courses, including deviation from the shortest direct route, which as far as practicable for navigational purposes, will cause any discharge to be spread over as great an area of the sea as is reasonable and practicable.”

So, how is this viewed in different jurisdictions?

The Dutch View

In the Netherlands, authorities have pressed the matter all the way to the Supreme Court in search of the clear meaning of “en route”.

The case referred to several vessels that had either deviated in their course of direct sailing or sailed directly to and from the same port for the purposes of discharging tank washings in perceived compliance with MARPOL Annex II. These operational discharges took place in the North Sea but as the vessels were Dutch flagged, matters were addressed within that jurisdiction.

The Dutch Public Prosecutor took the stringent German view (more on this later) that the shipowners were criminally liable as they were not “en route” when discharging noxious substances. The question to be answered by the Supreme Court in 2014 was whether the requirements of being “en route” had been fulfilled in the case of the vessels deviating for the sole purpose of discharging noxious substances.

The Supreme Court found that “en route” means that the ship shall be underway and sailing at or above the speed mentioned in the regulations. Therefore a ship may sail from a port, or deviate, for the sole purpose discharging noxious substances, provided the other requirements of MARPOL have been met.

The court further reinforced the point by concluding that the intention of the definition of “en route” as prescribed in MARPOL is to “spread the discharge over as a large an area of the sea as practicable” which would not necessarily be met should the ship be denied the option to deviate, nor would it allow for compliance with the 12 mile off and deep sea route requirements.

The German Interpretation

There remains ambiguity in Germany. Recent advice given to North by German lawyers was that the local courts are led by the general principle that the goal of MARPOL is to protect the marine environment against discharge of noxious substances so far as possible. Although MARPOL Annex II is implemented into German law, their domestic laws tend to take precedence where they differ from the convention. For example, the German See-Umweltverhaltensverordnung regulation (translated as “regulation on environmentally sound behaviour in the maritime sector”) provides that a vessel is not en route if it undertakes a voyage for the sole purpose of discharging noxious substances. As a result, and despite the interpretation confirmed in other jurisdictions, a vessel sailing from a German port for the sole purpose of discharging washings is not en route and the vessel’s Master and Chief Engineer will be liable to prosecution.

Should you find yourself unsure how to proceed in similar circumstances, speak to your usual contacts at North.