IMO 2020: Notifying Potential Non-compliance

In most cases this means switching to a 0.50% sulphur max distillate fuel or a VLSFO. But an increasingly common situation is arising that results in the shipowner being unsure on whether the vessel is compliant.

The problem scenario

The vessel orders compliant bunkers to be delivered. Following bunkering, the supplier issues a bunker delivery note (BDN) and it declares the fuel to be compliant (0.50% or less). The ship then sends a sample drawn during bunkering to an independent lab where it is tested against ISO 8217 listed parameters for commercial purposes. Several days later, the test results come back saying sulphur content of this commercial sample is greater than 0.50% – therefore indicating non-compliance.

What does the ship do?

The IMO has provided guidance in MEPC.321(74) that says in such a scenario the master might notify the following parties:

• The competent authority (e.g. port State control (PSC)) of the next port of call
• The vessel’s flag State
• The bunker supplier
• The Administration under whose jurisdiction the bunker deliverer is located

What will the authorities do?

In such cases, it will be left to the discretion of the relevant authorities as to what action they take. This could include taking no action and allowing the vessel to use the fuel but there is a risk of enforcement action.

Currently, we are unable to indicate the likely action to be taken by port State control (PSC), but it is likely to depend upon the facts of each case.

Importance of representative sampling

If the commercial samples test at greater than 0.50%, it does not necessarily mean the bunkers are non-compliant.

However, if the vessel’s commercial samples were drawn in an identical manner to that of the MARPOL delivered sample (as they should be if both drawn from the receiving vessel’s manifold), then this could be a reasonably reliable indicator that the bunkers might be found non-compliant for IMO purposes.

As such, it is important that the samples drawn during bunkering – for both regulatory and commercial purposes – are truly representative of the bunkers stemmed. This requires the crew to monitor the sampling process to ensure that the flow into the sample ‘cubitainer’ is consistent with the bunkering flow rate and a sufficient amount is collected.

But the reliability of the commercial sample to provide an indicator of non-compliance does have its limitations. Because of the limited accuracy achievable under the single test criteria, results can vary from lab to lab. Therefore, the commercial sample that was found to be non-compliant during initial tested, could be re-tested and then found to meet the compliance requirements.

Quite simply, a shipowner could find themselves in a situation where initial testing suggests bunkers are non-compliant but further testing shows them to be compliant.

Compliance can only be properly verified by testing the fuel in-use (drawn from the engine inlet) or from the official MARPOL delivered sample (taken at time of bunkering and can only be tested on the order of PSC or flag State).

The commercial conundrum

If the MARPOL delivered sample is tested by authorities, it is important to note that the verification process is different to that used for commercial purposes.

When testing commercial samples, the principle of single test reproducibility (0.59R) is taken into account. This means that a test result of 0.51% – 0.53% would be considered compliant for the purposes of satisfying the commercial standard ISO 8217.

The process for verifying the MARPOL delivered sample does not allow for any such tolerance on its final test result and the limit is absolute at 0.50%.

Therefore, in this scenario, a supplier (or time charterer under their c/p obligations) has provided bunkers that satisfy the requirements of the commercial contract but not those of MARPOL Annex VI.

The steps to take will depend on the facts of the individual case. Contact your usual FD&D contact for assistance.

2020 Vision

Find out more about the IMO 2020 sulphur cap in our dedicated area.