Are fines a deterrent?

Volume 11/Number 11/November 1980

Are Fines a Deterrent? If a ship is caught discharging oil into British territorial waters, the master can, in theory, be brought before the courts and face a penalty of up to a £50 000 fine. This is intended to deter polluters and as an indication of this, the maximum fine for the offence was raised in 1971 from a paltry £500 to the present figure. This sounds fine on paper, but there is a good chance that it is little more than symbolic and has only a marginal impact. The best deterrent of crime is a high probability of detection and conviction. There is a strong suspicion that a lot of shipping discharges oily wastes, oily bilge water and tank washings under cover of darkness. To judge from the amount of 'unattributable' oil slopping around in the sea, the suspicion seems justified. Detection is almost impossible and prosecutions for illegal discharges of oil at sea are rare. In practice, the overwhelming majority of cases in which the law sweeps into action relate to accidental discharges in ports and harbours. The law is obviously ineffective at deterring casual pollution at sea, but at least it might be thought to help keep harbours clean. In Britain, these cases come before the local magistrate's court (or its equivalent in Scotland), and the maximum fine for the offence is far higher than the fines magistrates are empowered to impose for other offences that come before them. The reason for trying these oil pollution cases before the lowest court in the land instead of some more august body is that they can act quickly. Speed is of the essence for the prosecution, otherwise the ship may skip port and not be pinned down again. But magistrates are more familiar with imposing a £10 fine for riding a bicycle at night without lights than with sums of £50 000 and, further, magistrates are notoriously capricious in their reactions to different cases. So it is that the Advisory Committee on Oil Pollution of the Sea (ACOPS) in successive Annual Reports has complained that whatever the maximum fine may have been, the average fine levied in the small number of prosecutions that were brought has remained trivial. It is true that in ports which handle a lot of oil, a vigilant harbour authority can gradually educate the local magistrates into imposing larger fines, but even if this is achieved all is still not plain sailing. An editorial in the Bulletin earlier this year (Mar. Pollut. Bull., (1980) 11, 177) reported an interesting new complication. When some tons of fuel oil were spilled at Flotta, in the Orkneys, during loading operations, the fine imposed (£25 000) was related to the clean-up costs (£20 441). The verdict was appealed against and the Appeal Court ruled that the size of the fine should relate to the means of the culprit to pay and not to the cost of the incident. The fine was accordingly reduced to £750. If this ruling is generally applied, it follows that raising the maximum penalty to £50000 has been largely window dressing. There will be few cases in which the master of a vessel, who is the person held responsible for spillages from his ship, will have the private resources to warrant a fine which is more than a small fraction of the maximum. In any

case, it is often the company, if it is large and responsible, that will pay the fine and that out of the petty cash. An additional bone of contention is that companies often insure themselves against prosecution for oil pollution offences. To some people this appears quite immoral and defeating, at a stroke, the deterrent effect of the fines (which it probably does to a large extent). There have been some demands that such insurance should be made illegal, but it is hard to see what difference that would make when it is possible to shop around the world for insurance. An argument about fines for oil pollution has also broken out in Canada. Writing in Marine Environmental Research last year (Mar. Environ. Res. (1979), 2, 251-253) Dr Gilles La Roche complained about the irrationality of the Canadian Fisheries Act which imposes a fine of $50 000 for a first offence and $100 000 for a second offence of spilling any quantity of petroleum or petroleum products into waters under federal jurisdiction. His argument was that the Act takes no account of the nature or quantity of oil discharged, or of the capacity of the waters into which it is discharged to receive it safely. In addition, he objected to accidental spillages being singled out for penalties when the probably far greater quantity of dispersed oil entering coastal waters down municipal sewers was ignored. This evoked a response from Dr Peter Wells of the Canadian Environmental Protection Service (Mar. Environ. Res. (1980), 3, 315-318). He pointed out that these were maximum penalties and the courts would have to decide the seriousness of the offence in setting the level of a fine. In evidence of how the Act works in practice he quoted a recent prosecution in Dartmouth, Nova Scotia, in which Texaco Canada was fined $2000 for spilling 29 000 gallons of furnace fuel oil into Halifax Harbour (which seems a modest enough fine, more or less pro rata with what the impoverished master of the unfortunate vessel in Flotta Harbour eventually had to pay out after the intervention of the Scottish Appeal Court). One way or another, none of this history suggests that the current scale of fines can have much deterrent effect, though the higher the maximum fine is set, the more likely environmentalists are to feel that something is being done. At best, the existence of the offence and penalty on the Statute Book expresses official disapproval of casually pouring oil on the sea and no doubt has a major influence on law-abiding citizens and companies. How much influence it has on the less law-abiding or (most commonly) the careless and accident-prone is a different matter. More likely it is more the inconvenience, embarrassment and bad publicity of being hauled before the courts, than the size of the fine, that inculcates a more careful attitude. But no-one would pretend that these psychological pressures are very powerful inducements or will produce a dramatic change. What is undoubtedly effective is to hold up a ship for a few days as the Shetland Council discovered at Sullom Voe last February, when it brought a recalcitrant tanker company to heel by refusing to accept one of its tankers which had been seen discharging oil at sea (Mar. Poilut. Bull. (1980), 11, 89). The EEC has recently been toying with the idea of black-listing offending vessels and there can be no doubt that interference with commercial shipping in this way would revolutionize the situation. Unfortunately, it is also quite illegal and the British Department of Trade, traditionally afraid of any unilateral action which might 305

Marine PollutionBulletin have repercussions on British shipping around the world in some kind of retaliation, is understandably lukewarm about the idea. The present system is anything but perfect, but it is true that ports and harbours which are vigilant, prompt in prosecutions and prompt to clean up spilled oil, suffer fewer accidents and have cleaner waters than others which are less active. The size of the fines that are imposed do not appear to be a very critical factor, though fines have their part to play. Even in the best managed circumstances, accidents happen and any port handling oil will inevitably experience some spillages. Experience of the best managed ports is that the problem can be contained with a firm hand and effective measures which are already available. Perhaps some of the dirtier ports should look to their own management practices than to look for draconian measures which they hope (without much evidence to support it) that thereby the problem can be swept away without effort on their part. R. B. C L A R K

Partial Neutrality In September Mr William Taylor, a Glasgow planning lawyer, presided over an informal 'public sessions of the Highland Regional Planning Committee' in Dingwall to

SuperquarryScuppered In 1976 a committee chaired by Sir Ralph Verney which was appointed to examine the outlook for aggregate reported that there seemed " a very real prospect for the long-term expansion of the Scottish export market not only to north Germany but also south-east England", and identified nine possible sources, two on the east coast and the rest in the west. The report was not well received by the relevant authorities, but since that time Longhaven Quarries, one of the enterprises backed by Mr Ronald Titcombe, who was responsible for the first attempt to establish oilfield service bases at Peterhead later developed by others, has been attempting to reopen abandoned quarries south of the town. Initially the proposal was rejected four times by the local planning committee, he then withdrew a fifth application and went ahead claiming an 'existing use right'. The Council debated stopping him, but when threatened with a £2 million suit for damages settled for a 'section 50' agreement imposing some restrictions, notably on output. It was then found unduly expensive to transport the rock to Peterhead where harbour dues were high, so application was made for a Parliamentary Provisional Planning Order to enable him to turn an adjacent bay, occupied by 7000 pairs of breeding seabirds nesting on cliffs and used by mountaineers, into a private harbour. There was apparently an unprecedented response, which included objections from the District and Regional 306

consider three mutually-exclusive proposals for the establishment of another gas-processing plant on the Cromarty Firth. He started out by saying that while an 'impartial' chairman he did not regard himself as neutral, as he considered that the Council were right to do everything possible to attract developers who might otherwise by-pass the region (which does not lie on the natural route for the transfer of North Sea gas products in any case). After this both developers and local authorities weighed in with comment that they were not only anxious to secure gasprocessing facilities, but down-stream industry as well. There was no question about acceptance of the developments, for which planning permission was already granted (despite adverse decisions at past enquiries, which they did not wish to repeat), but only how many they could secure. In the face of this the environmental opposition fell back on their concern about the danger of accidents, which was frankly a little unconvincing in this under-populated region considering the situation elsewhere, and demands for adequate arrangements for compensation when they occur, a consideration which may also interest the residents of Peterhead and Canvey Island with their vulnerable harbour facilities, not to mention some of our other ports. It was not aparently considered the business of the inquiry whether such developments should be left to large foreign companies. W. R. P.. B O U R N E

Councils, who were concerned at this usurpation of their planning function. But the environmentalists were the least easily placated. They were then given two weeks' warning (which reached the developer first) that there would be a local inquiry by Parliamentary Commissioners starting on 21 July, the middle of the local trades' holiday. By this time it had transpired that the Dutch authorities had given the firm a contract to supply £5 million worth of rock under the impression that they already had planning approval, and that their British backers, the Royal Bank of Scotland, were due to have a meeting with them, complicated by the fact that the managing director had resigned. Eventually 5 days before the inquiry was due to start the firm was declared bankrupt and it was called off. W. R. P. B O U R N E

Pelrochemicai Problems The British Government have now duly confirmed that they propose to build a North Sea gas-gathering pipeline with a link to the established terminal at St Fergus. They have mmounced that they will leave the decision over which of three applicants-Dow Chemicals in association with Cromarty Petroleum, Highland Hydrocarbons, or the British Gas Corporation - will be allowed to initiate petrochemical developments on the Cromarty Firth to the Highland Regional Planning Committee, instead of holding a public inquiry (two have already resulted in reports