Controlling vessels in foreign ports

Marine Pollution Bulletin

to be equipped for biological purification. This measure applies especially to islands lying off the Lower Saxony coast where, because of the seasonal influx of tourists, sewage systems are greatly overloaded. Compliance

Marine Pollution Bulletin, Volume 19, No. 11, pp. 556-559, 1988. Printed in Great Britain.

Controlling Vessels in Foreign Ports International law does not seem as a rule to provide states with jurisdiction over foreign vessels in their ports regarding polluting activities attributed to these vessels if the activities have no territorial link to the state concerned. A number of conventions regulating marine pollution and safety of navigation, however, provide for inspection of these vessels to make sure that their requirements are satisfied by the ship as it enters the port in question. The rectification of these conditions are well Within the jurisdiction of the port state since they are 'present' whilst the vessel lies in its waters. IMO at the same time tried to create a system of surveys, certification and inspection of ships in respect of their design, construction and equipment. The following analysis will ascertain the effectiveness of this system, through the reporting requirements to the main committees of IMO.

Development of the System Articles VI(3) and X of the 1954 Convention on Prevention of Marine Pollution (OILPOL) provided for an obligation of the contracting parties to submit information on contraventions of the convention, investigations of alleged violations, the outcome of proceedings and the penalties imposed. Until the Fifth Meeting of the Marine Environment Protection Committee (MEPC) in 1976, though, these reports were only distributed to IMO members as circular letters. Enforcement, proved in practice to be the stumbling block in implementing even the moderate requirements of this convention and, in acrimonious discussions concerning the control of ships, the Committee discussed the purpose of the reports received. The MEPC accepted that one of its responsibilities was to identify matters requiring improved control of enforcement measures, reasons for infringement and ways to eliminate them. Accordingly, it included the reporting of these incidents as a regular item in its agenda [MEPC V/19, para. 71, 2 June 76]. Reports of this nature can be classified as follows: 1. reports by coastal states to flag states under Article X(1) of OILPOL on alleged violations which occurred within or outside the territorial waters of the coastal state. There was no obligation on the coastal states to submit these reports to IMO; 556

with the new proposals has been estimated to cost DM 20 million (£6.3 million). Source: New Scientist.

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2. reports submitted by the flag states under Article X(2) on the action taken on the alleged violations reported by the coastal states. The flag states should furnish reports to the coastal states and IMO; 3. reports submitted by port (or coastal) states under Article VI on violations of OILPOL which occurred within the territorial waters of these states and on the penalties imposed by them. Port states should submit reports to IMO on the penalties actually imposed, but did not have to inform the flag states. This action was supplemented by a decision by the Maritime Safety Committee (MSC) to adopt a method of collecting information from administrations regarding the enquiries held into casualties and their findings [MEPC VII/18, 10 May 77]. This list according to the MSC guidelines includes information on casualties to ships of no less than 1600 grt which are a total loss (including constructive total loss and casualties to ships of no less than 500 grt involving loss of life). The MEPC discussed this action in 1977 and decided to prepare a separate list of incidents involving significant spillages of oil. This list includes incidents characterized as significant spillage (i.e. a spillage of 100 t or more) and governments were requested to provide information on their investigations [MEPC VII/19, Annex II, Section I, 29 June 77]. Nevertheless, these reports were submitted to the MEPC only for consideration without establishment of a formal procedure for analysis and evaluation. An effort to establish such a system was initiated during the 19th session of the MEPC in 1980 but it failed. Only in 1983 did the Secretariat attempt a statistical analysis of the reports submitted from 1977 to 1981 [MEPC 19/13/7, 6 Sep. 83]. Reports submitted by Contracting Parties were not always divided into the above mentioned categories. Sometimes a flag state's actions are reported by coastal states. Furthermore, it was not always possible to identify which of the flag state's reports submitted under section 2. corresponded to the incidents reported by the coastal states. Therefore, these figures were not very accurate. What was made obvious from the IMO study, is that the number of states submitting reports is very limited. While the reports cover a wide range of flags (85 flags) there were only 27 states reporting in the years 1977 to 1981 (in 1981 there were 69 parties to the 1954 OILPOL Convention). This analysis included 2451 reports, 1640 of which led to the conviction of the master, shipowner, and the crew; 128 were found not

Volume 19/Number 1 l / N o v e m b e r 1988

guilty because of proof of innocence or lack of evidence. A close analysis of the reports submitted by the port/ coastal states on violations committed within their territorial waters and convictions and penalties thereof reveals a higher percentage of convictions and investigations. Flag states are, however, very slow to follow up relevant reports and only a few states take any action and punish infringements. This was best illustrated by a study on violations submitted to the MEPC undertaken by France in 1985 [MEPC 21/16/3, 30 Jan. 85]. This included only states that had received at least three reports by France on violations by their vessels up to 1983. The study listed 120 cases between 1976 and 1983 for which no action was known to have been taken by the flag state. The same study compiled the geographical distribution of violations relating to oil discharges noted by the French authorities between 1976 and 1983 and the action taken where known. These results also indicated that even states with a very good tradition in reporting violations to flag states and stringent regulations for infringements within their own territorial waters are very reluctant to punish violations in foreign waters or the high seas. States that submit reports on port state enforcement are mainly developed countries with an established shipping tradition and a few exceptions from developing countries. Even if some developing countries exercise some kind of port state jurisdiction the figures reveal either that they are very few or that they have no administrative capabilities to establish an effective system for inspection of vessels calling at their ports or polluting their territorial waters, or for dissemination of information--both to states concerned and the relevant organization. Therefore, they restrict themselves to investigating or penalizing their own vessels for offences committed in international or foreign waters.

Evolution of the Mandatory Reporting System The shortcomings of the reporting system provided by the OILPOL were recognized during the negotiations for the M A R P O L convention. The provisions of the latter convention provide for the following three categories of reports: 1. deficiency of ships and certificates (Art. 5); 2. discharges in contravention of the convention (Art. 6); 3. incidents involving harmful substances (Art. 8); Article l l(e) empowered IMO to prepare a standardized annual statistical report of penalties actually imposed for infringements of the M A R P O L Convention. Furthermore, its Protocol I included detailed provisions on the duty to report, methods of reporting, contents of reports, and reporting procedures. States were obliged to make reports whenever an incident involved discharges other than those permitted under the MARPOL Convention and covered all Annexes attached to the Convention. IMO Assembly Resolution A.447(XI) also requested the MEPC to develop comprehensive guidelines for a mandatory reporting system

prior to the entry into force of MARPOL in compliance with the above Protocol I. Efforts to develop these guidelines began during the 19th session of the MEPC in 1983 which faced a pertinent legal problem. Protocol I required reports on incidents involving the harmful substances included in all Annexes. However, at the time of the discussion only Annex 1, concerning the discharge limitations, was in force. The decision was taken to simplify Protocol I and adopt additional guidelines for its compliance. On 6 April 1987 Annex II of MARPOL also came into force. During the discussions of the 21st session of the MEPC in May 1985, the Swedish delegate supported the view that Protocol I did not need to be amended since the pollution prevention requirements of the Annexes were quite distinct from the reporting requirements which were designed to enable coastal states to protect their coastlines and related interests and which could not in any way be held to be implementing the former requirements [MEPC 21/19, 16 May 85, para. 11.14]. This interpretation was not accepted by the MEPC and the amended Protocol I, which came into force on 6 April 1987, provided for submission of reports when incidents involved discharges of oil, noxious liquid substances, harmful substances in packaged form, and operational discharges. This included the probability of a discharge and also discharges for the purpose of securing the safety of a ship or saving life at sea. The Committee also adopted detailed guidelines for the reporting of these incidents. Reports are forwarded in a standardized format als0 adopted by the MEPC at its 21st Session [MEPC 21/19, 16 May 85, Annex 14]. States are requested to submit the required annual summary reports by 30 June each year. These reports must include: 1. Annual summary reports to IMO by the administration of incidents involving oil spillages of 100 t or more. 2. Annual enforcement reports: a. reports by the coastal state of alleged violations referred to the flag state; b. report by the flag state of actions taken on alleged violations of the discharge provisions referred to that state; c. report by the flag state of alleged inadequacy of reception facilities referred to the port state; d. report by the port state of actions taken on alleged inadequacy of reception facilities referred to that state. 3. Annual assessment reports: a. report by the port state of the M A R P O L effectiveness; b. report by the port state of M A R P O L violations resulting in detention or denial of entry; c. statistical reports of penalties imposed for MARPOL violations. Reports were submitted to the MEPC from the 23rd session onwards. Twenty-three States have submitted reports of some kind to the 23rd and 24th Sessions and even if it is not possible to assess the effectiveness and usefulness of the new system these reports present a clear indication of the future trends. The picture is not very promising. Only five states and one territory (I-long Kong) have returned full and comprehensive reports including all appropriate sections. Some states continued to send information along the lines of the old system and do not 557

Marine Pollution Bulletin

report on all sections but only on a selective few. Some states may not report simply because there is no action or violations under these sections but it might also imply a lack of the appropriate mechanisms to enforce the relevant pollution regulations.

A More Effective System? This is only the second year of implementing the new system and there is always the hope that given time more administrations will be able the better to respond and fulfil their obligations. However, the IMO and leading maritime states should intensify their efforts to provide training, technical assistance and financial aid for poor regions or states with no proper infrastructure to inspect vessels and inform the appropriate authorities. Simultaneously IMO should adopt a policy of vigorous analysis, proper investigation.and publication of trends present in the information provided. This information should be also made readily available to interested administrations and publicised, along with assessments, evaluation and recommendations. An ad hoc Working Group could meet annually or biennially and prepare a comprehensive report along with recommendations and suggestions to facilitate the work of the MEPC and give the governments, industry, scientific groups, and environmental organisations the opportunity to comment or take action according to a long term plan and prospective. The quite flexible way of revising M A R P O L and its Protocols would also allow the development of the system, the adoption of new enforcement technology; facilitate its economic and technical feasibility; and prevent new polluting activities by introducing economic aid programmes to induce state's compliance and enhance their capabilities. What is more important from the port states' point of view is that the implementation of the MARPOL regime should prepare the ground for the extension of their authority to investigate and punish infringements in foreign and international waters.

Inspections and Penalties as Deterrents Over a long period IMO has also adopted a number of measures to assist in the identification of ships that do not fully comply with conventions related to prevention of pollution from ships and maritime safety measures. These procedures are generally referred to as "procedures for the control of ships" and are parallel activities of the MEPC and MSC relating to the application and implementation of the respective international legal instruments under their supervision. Resolution A.391(XI) adopted in 1977 deals exclusively with prevention of marine pollution and was concerned with OILPOL, as amended. For many states, however, OILPOL has been superseded by MARPOL and the 13th Session of the Assembly of IMO adopted in 1983 Resolution A.542(13), referring to procedures for the control of ships and discharges under Annex I. A similar resolution relating to Annex II of MARPOL 558

was adopted by the 23rd Session of the MEPC in July 1986. Most national legislation provides for monetary sanctions for infringement of marine pollution conventions, in compliance with their provisions. Figures released by administrations, though, reveal that in some instances the fines imposed are not severe enough to discourage violations of such requirements. This is especially so in cases where flag administrations are penalizing their vessels for violations in international or foreign waters. In 1981 the Assembly of IMO also adopted Resolution A.499(XII) on penalties for violations of Convention requirements relating to the prevention of marine pollution from ships, proposed jointly by Finland, Federal Republic of Germany, Norway, and Sweden. This resolution, amongst others, urged governments of States which are parties to pollution prevention conventions to take all necessary legislative steps to ensure as a matter of higher priority, that penalties, particularly financial sanctions against those who operate polluting vessels, are severe enough to discourage violations of such requirements.

Deficiency Reports at the M S C In parallel with the other activities concerning the control of discharges from ships, the MSC started considering the question of substandard vessels in 1974, noting that Port State Control 0aSC) was directed primarily to preventing the operation of substandard vessels regardless of their flag [IMO Doc. C.50/II, 25 Feb. 1983, para. 3]. As a first step the MSC decided to deal with the question from the technical point of view and principally in terms of the measures and procedures necessary to ensure that international regulations and standards laid clown in relevant international instruments are enforced. Procedures for the control of vessels in conformity with the requirements of SOLAS 74 and 1966 Load Lines Conventions were adopted by the IMO Assembly at its 9th regular session in 1975 and incorporated in Res. A.321 (IX). The MSC adopted guidelines on control procedures under Res. A.466 (XII) to give effect to this resolution. According to these provisions states exercise PSC in their ports for the purpose of inspecting foreign ships and "where appropriate" submitting deficiency reports and reports on measures taken to the MSC. Deficiency Reports are submitted in compliance with Reg. 19 of Chapter I of the 1974 SOLAS and Art. 21 of the 1966 Load Lines Convention. These reports give specific details of the name of the ship, year of build and other technical specifications and the action taken by the port state. Flag states are notified of the deficiencies if further action is required and their comments also are inserted on the inspection documents. The MSC also publishes a list of all outstanding deficiency reports. According to this information, at the end of December 1987 there were still 129 deficiency reports pending (Table 1). From the information provided in Table 2, it is

Volume 19/Number l l / N o v e m b e r 1988 TABLE 1

TABLE 2

List of flag states with outstanding comments on deficiency reports.

Deficiencies from 1979-88.

Cuba Ecuador Egypt Ethiopia Ghana Grenadines India Indonesia lran Italy Ivory Coast Lebanon Madagascar Malta Malvines

2 1 5 1 1 1 7 2 1 1 4 5 2 3 2

Malta Panama Philippines Rep. of Korea Romania Saudi Arabia Spain Suriname Tanzania Turkey Vanuatu Venezuela Yugoslavia Zaire

Total

3 50 11 1 2 6 3 l 1 8 1 3 3 1 129

The information is included in the following MSC Documents: MSC XLI/4, 19 July 79; MSC XLII/4, 24 Jan. 80; MSC XLIV/4, 13 Jan. 81; MSC 46/15, 3 Dec. 81; MSC 48/19, 25 Feb. 83; MSC 49/13; MSC 50/16, 15 Aug. 84; MSC 52/19, 15 Aug. 85; MSC 54/12, 12 Dec. 86.

obyious that the 14 European States members to a regional regime of enforcement of marine conventions,

Marine Pollution Bulletin, Volume 19, No. 11, pp. 559-564, 1988.

Pnnted in Great Britain.

Period Nov. 78-Mar. 79 Apr. 79-Dec. 79 July 80-Sept. 80 Oct. 80-Oct. 81 Oct. 81-Dec. 82 Jan. 83-Oct. 83 Nov. 83-June 84 July 84-June 85 Sept. 85-Nov. 86 Total

No. of Reports

PARIS Members

Outstanding Reports

43 84 18 194 438 281 187 186 179

28 58 10 170 413 236 140 157 163

6 1 9 37 40 18 18 -

1610

1375

129

the Paris Memorandum of Understanding on Port State Control, contribute the bulk of information on PSC since their combined reports constitute an estimated 85.4% of the reports received. Other states with a good record on PSC are Australia, Canada, United States, Kuwait, Japan, and the USSR.

GEORGE C. KASOULIDES

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Viewpoint is a column which allows authors to express their own opinions about current events.

New Insights into Shellfish Toxins MASAAKI KODAMA and TAKEHIKO OGATA

Masaaki Kodama is a Professor in the Laboratory of Marine Biological Chemistry, School of Fisheries Sciences, Kitasato University. Takehiko Ogata is an Associate Professor of the same Laboratory. Both are interested in biological and especially ecological role of natural toxins, such as paralytic shellfish toxins and puffer toxin. They have considerable experience with toxic dinoflagellates in tropical and Japanese waters.

Paralytic shellfish toxins (PSP toxins) are potent neurotoxins which are produced by several species of dinoflagellates such as Protogonyaulax tamarensis, etc. When these species bloom in the ocean, bivalves become toxic by ingesting them. Interestingly, bivalves are not influenced by these toxins. It is impossible to distinguish from their appearance toxic bivalves from nontoxic ones. Therefore, food poisoning often occurs through the consumption of these toxic bivalves. This kind of poisoning is called paralytic shellfish poisoning (PSP) from its main symptom, paralysis. PSP is a dangerous

food poisoning because of its high fatality and acuteness in developing symptoms. Toxins responsible for PSP are saxitoxin and its analogs. These toxins block the sodium channel of the nervous system in the same manner as puffer toxin, tetrodotoxin. It is confirmed by many authors that bivalves become toxic during blooms of toxic dinoflagellates. Needler (1949) monitored the abundance of G. tamarensis (P. tamarensis) and the toxicity of mussels in the Bay of Fundy and reported that both parameters correlated well. We also monitored both parameters in detail at 559