Oily Water Separators: Worldwide *Updates*

19 November 2010:

IMO have recently published useful guidance on completing Part I of the Oil Record Book.

Please click here for a copy of the guidance.

18 March 2009:

Several recent high profile cases involving whistleblowers highlight that ship owners are still experiencing problems in the USA with respect to Oily Water Separator violations.

Click here for the full BIMCO article.

In a further development to the OWS situation a Dutch court has fined a ship owner for an alleged illegal discharge into the Mediterranean Sea. Inevitably questions arose as to the court’s jurisdiction.

Click here for the article from Hellenic Shipping News.

10 February 2009:

US law firm Holland&Knight have issued a Client Alert following recent US Second Circuit Court of Appeal judgements concerning the requirement to maintain an accurate oil record book on ships in compliance with the requirements of the MARPOL Convention and the jurisdiction of the United States.

Regulatory limitations restricting application to foreign-flagged vessels only “while in the navigable waters of the US” and any action taken required to be “in accordance with international law” have not prevented the Court of Appeal from rejecting a request by defendants to refer the matter to the vessel’s flag State for enforcement.

The Court also agreed with the government’s argument that the requirement to “maintain the record while in U.S. waters” meant that the records must also be accurate “or at least not knowingly inaccurate.”  

While the absence of a compliance programme need not be proven by the government to justify a prosecution against a company, a robust programme may assist in defining those responsible as a “rouge employee” acting against company policy and outside the scope of their employment.

Click here for the Holland+Knight Client Alert.

19 April 2007:

Recent press reports suggest that even though the US ‘campaign’ started as long ago as 1993 ship operators are still being caught out with prosecutions.

What’s happening?

The largest US fine set to date is US $37 million from which 12 ‘whistleblowers’ reportedly each received US $437,500.

Prosecutions can be based on ‘submitting false records’ to the USCG rather than a OWS MARPOL violation. It appears the interpretation might be – there are no records of the ship disposing of or incinerating sludge which ‘must’ have been produced therefore the records are false.

If a ship operator is found guilty it is possible that the penalty will not be set until the ship operator’s head office – where ever it may be based – is audited by the US department of justice.

prosecutions are not restricted to the US – EU member states have prosecuted ship operators for OWS violations and under the new EU ship source pollution directive member states may prosecute ship owners for pollution on the high seas.

What can be done to reduce the risk of prosecution?

• Equipment – does it function without fault and what does it look like? – consider fully refurbish or replace with new (under survey).
• Procedures – review to confirm effectiveness and that records generated provide comprehensive evidence of MARPOL compliance. Clear instructions regarding use and maintenance are essential.
• People – familiarise the crew with the equipment and train them in the new procedures. Consider training the crew to manage the PSC process so that they are in control and are aware of a change from PSC inspection to criminal investigation.
• Tamper-proofing – Consider implementing a system which physically prevents use or maintenance unless under strict ship operator controlled conditions. Such a system may deter malicious whistleblowing allegationsand may protect the ship operators against unilateral shipboard action.

21 February 2006:

The international shipping industry has responded to the zero tolerance for any OWS non-compliance by publishing guidelines for ensuring use of the equipment complies with MARPOL. PSC concentrated inspection campaigns are currently targeting OWS.The first edition includes advice on:

• technical issues
• control devices
• role of shore management
• role of senior officers on board
• training
• audits and inspections

Click here for a copy of the Guidelines on Oily Water Separators