COMPLIANCE AND ENFORCEMENT IN ITALY CONSISTENT WITH INTERNATIONAL PROVISIONS
TO PREVENT MARINE POLLUTION -
HINTS TO CRUISE LINES OPERATORS &OWNERS
by Giuseppe Lorenzo Rosa, Esq.
M.A Business Law, Italy.
1.The Regulatory Framework.
Italy – which timely acknowledged UNCLOS, Montego Bay 1982, MARPOL 73/78, SOLAS 1974, OPPRC 1990, CLC 1969/1992 and IOPC 1971/1992 – centers its focus on the subject matter of defense of the sea and prevention of pollution through several statutes, namely Law 979/82, Law 339/86 and Law 220/92.
European Commission Directive 2005 / 35 – the focus of which was also on the criminal sanctions front – has expressly determined that sanctionable entities are the following: owner of the ship, master, owner of the load, the classification entity, and any other entity which is related to marine trade.
Under Section 4 of the Directive each Member State shall enact laws to the extent that polluting discharges be considered as criminal violations, whenever they are made willingly, at risk or based upon gross negligence.
The European Council 's Decision 667 / 2005 / GAI has further bound EU Member States to implement a common network of criminal sanctions to be enforced where the sea my be impaired by way of pollution.
Under existing Italian provisions in the subject matter, it is necessary to establish whether discharge, or potential discharge, has occurred within territorial waters.
Should territorial waters be the case, criminal charges would be brought vs. the Master of the ship, irrespective of the flag of the vessel.
Pursuant to the following provisions of Law 979 / 82 only the Master of a non - Italian flag vessel can be held liable.
Section 16 of Law 979 / 82 provides as follows :
Nell'ambito delle acque territoriali e delle acque marittime interne, compresi i porti, e' fatto divieto a tutte le navi, senza alcuna discriminazione di nazionalita', di versare in mare, o di causarne lo sversamento, idrocarburi o miscele di idrocarburi, nonche' le altre sostanze nocive all'ambiente marino indicate nell'elenco "A" allegato alla presente legge. Del pari e' fatto divieto alle navi battenti bandiera italiana di scaricare le sostanze di cui al precedente comma anche al di fuori delle acque territoriali.
Within territorial waters as well as inland marine waters, including ports, it is forbidden for all vessels, irrespective of any discrimination based upon nationality, to discharge in the sea, or to cause the discharge, hydrocarbons or mixed hydrocarbons, as well as any other substances which are detrimental to the marine environment, as they are set out under Exhibit A attached to this Statute. Italian flag vessels are forbidden from discharging the substances mentioned under the preceding paragraph also beyond territorial waters...
Section 20 of Law / 82 provides as follows :
Il comandante di una nave battente bandiera italiana che violi le disposizioni dell'articolo 16 o la normativa internazionale di cui all'articolo 17, nonche' il proprietario o l'armatore della nave, nel caso in cui la violazione sia avvenuta con il loro concorso, sono puniti con l'arresto da due mesi a due anni o con l'ammenda da lire 500.000 a lire 10 milioni; se il fatto e' avvenuto per colpa le suddette pene sono ridotte alla meta'. Alla stessa pena e' soggetto il comandante di una nave battente bandiera straniera che violi le disposizioni di cui all'articolo 16. Per i reati previsti al primo e secondo comma del presente articolo e' consentita, in caso di recidiva specifica, l'emissione del mandato di cattura. Per il comandante di nazionalita' italiana della nave la condanna per il reato di cui al precedente primo comma comporta la sospensione del titolo professionale, la cui durata sara' determinata ai sensi dell'articolo 1083 del codice della navigazione. Ai comandanti di navi di nazionalita' non italiana che abbiano subito condanne in relazione al reato di cui sopra sara' inibito l'attracco a porti italiani per un periodo variabile, da determinarsi con decreto del Ministro della marina mercantile, commisurato alla gravita' del reato commesso ed alla condanna comminata.
The Master of an Italian flag vessel who violates the provisions of Section 16 or the International provisions mentioned under Section 17, as well as the Owner or the Operator of the vessel, in the event that violation occurred with their contribution, shall be punished
by arrest from two months up to two years, or with a fine from Italian Lira 500,000.00 up to Italian Lira 10,000,000.00 . Should occurrence happen by way of negligence, the mentioned sanctions shall be half.
The Master of the non Italian vessel shall be subject to the same sanctions in the event of violations of Section 16.
In the event of recurring specific violations of the provisions named above, a writ of arrest shall be issued.
Should a Master of an Italian flag be condemned for violations mentioned above, professional license shall be suspended, for a time period to be determined pursuant to Section 1083 of the Italian Code of Navigation.
Masters of non Italian flags who have been condemned for violations of the crime mentioned above shall be prevented from docking at Italian ports for a flexible period of time, to be ruled by means of a Decree to be issued by the Minister of Merchant Marine,
taking into account the seriousness of the crime and the sanction applied.
Section19 of Law 979 / 82 mandates several provisions to be applied to record any facts which fall within the provisions of Section 16 thereof, inasmuch as an Italian flag vessel is concerned, including Oil Content Meters OCMs / Hydrocarbons logbook.
OCMs notation books and recording for non Italian flag vessels shall be consistent with International Conventions, and the legislation of the flag of the vessel.
Sections 218 / 220 of UNCLOS 1982 attributes the State Port Authority SPA several powers in connection with situations where discharge may have occurred outside territorial waters or the exclusive economic zone, or a vessel is in violation of international rules and standards relating to unseaworthiness of vessels and thereby threatens damage to the marine environment.
Legislative Decree March 24, 2001 n.53 introduced several provisions to comply with European Commission Directive 2009 / 16 , for the purpose of implementing effective procedures to monitor vessels of non Italian flag which call at Italian ports, and in compliance with international and EU provisions relating to safe navigation, marine transport, seamen, vessels, port facilities, marine and coastal environment and marine biological resources.
Marine Environment Department of Port Authorities ( the Italian acronym being RAM ) is actually the specific enforcement and liaison unit established under Law 179 / 2002 to assure effective co-operation between the Italian Ministry of the Environment and the Headquarters of the Italian Coast Guard with respect to all areas where the latter is authorized to take care of marine and coastal environments.
RAM , inter alia, has the task of monitoring all data pertaining to compliance with MARPOL 73 / 78 and other IMO Conventions for the protection of the environment and retrieval of data relating to the principal activities of environmental monitoring.
RAM is particularly sensitive and active in connection with the enforcement of provisions aimed to exerting an actual control over management of all potential sea pollutants attributable to vessels pursuant to Annexes I, II, IV and V of MARPOL, including oil , bilge liquids.
RAM is the direct liaison between Italian Port Authorities and overseas analogous entities, like the U.S Coast Guard.
The Italian Coast Guard is increasingly sensitive to any issue which may adversely affect Italian waters.
Italy – being a peninsula extended into and across the Mediterranean Sea – boasts 9,000 kms of coastline as well as an effective system of defense and protection of sea waters.
3. OCMs: purpose, mishandling, consequences.
OCMs' purpose is to allow owners, operators, SPA, to properly monitor flow and possible discharges of bilge liquids into the sea.
Supposing that owner or operator of a vessel, at the time of her delivery by prior owner or operator, wishes to determine whether any improprieties may have occurred with respect to conducts detrimental to prevention of sea pollution, inspection companies are retained to carry on a thorough check.
Should such inspection determine potential tampering with OCMs applied to Oil Water Separators OWS - irrespective of any material evidence that even a magic pipe ( i.e a detachable pipe ) may have been applied to the OCMs and the OWS – in my opinion
it is enough to establish that one or more OCM/s may have either by-passed by a magic pipe, or switched off, for the purpose of avoiding adequate monitoring of the works of the OWS.
4.Owner's / Operator's Policies and Procedures to Address Improper Use of OCMs and OWS.
Particularly at the time of delivery of a vessel to a new Owner / Operator, precautions should be implemented, as a matter of standard policies and procedures, in order to assess any possible or straight violation incurred by the previous Owner / Operator, the process being referred to a due
diligence following closing of the legal deals whereby the relevant vessel changes cruise line.
Liabilities may in effect arise with respect to past violations of any of the provisions under § 1 herein, or, more likely, potential increased monitoring and enforcement by SPA may actually occur following any such prior improper use of the vessel, which , according to SPA may adversely affect compliance with those provisions in the future.
Where no evidence exists that (i) either a discharge in Italian territorial waters or (ii) any official, formal notation of tampering with one or more OCMs, but only an indication of a possible tampering reported internally by Owner's / Operator's or independent surveying staff or (iii) a discharge in non Italian waters which may have been reported to Italian authorities, the following considerations should be noted by Owners / Operators of the newly acquired and delivered cruise vessel:
(a) no criminal, civil or administrative violations, and ensuing sanctions may be considered for the period up to change of management;
(b) considering the framework of Italian / EU regulatory provisions, as well as monitoring practices under International Conventions, vessels which are beyond a ten-year old original registration, particularly if cruise substantial ships, of a foreign flag state, and appear to have operated and to be operated primarily in the Mediterranean basin, are more likely than others to be the subject matter of monitoring by SPA and enforcement agents, namely the Italian Coast Guard.
5.Typical log-book of a case before Italian SPA affecting a foreign flag cruise vessel.
Having highlighted in the preceding paragraphs the context of a potentially contingent situation affecting compliance of a cruise vessel - being operated by a new Owner and Operator across the Mediterranean and in Italian waters – with the several provisions aimed to prevent sea pollution, it is now interesting to consider what may actually happen in practice.
Following is a sequence of events which actually occurred in 2015, the subject matter being a substantial cruise vessel, 14 year old, which was delivered to new Owner's / Operator's actual management in April 2015; current Bahamas flag.
April 2015: Port of Genoa, Italy: independent inspection team detected possible tampering with OCMs applied to OWS, at the time of delivery of the vessel;
June 2015: Port of Dubrovnik, Croatia: SPA noted minor violations made in the
logbooks of the vessel;
June 2015: Port of Venice, Italy: SPA's agents, namely the Italian Coast Guard, after thorough checks on board the vessel, issued two separate orders whereby Euro 3,000.oo approx are to paid as fine for violations made in the keeping of records on board the vessel and Euro 30,000 are to be paid as fine for violations relating to the sulphur percentage content in the Marine Gas Oil MGO used for maneuvers in port areas. "..Based upon Test Report ASI
( omissis ) dated June ( omissis ) 2015, issued by the laboratory of
the Customs Agency on Sample taken directly from the bunker called ( omissis ) MGO used in mooring , it appeared that the sulfur content was equal to 0.26% by mass. "
"..This constitutes a violation of hyphen 6 of Art. 295 of Legislative
Decree no.152/2006 in the version currently in force (implementation of the Directive 2005/33 / EC). The above is
punished under hyphen 5 of Art.296 Legislative Decree 152/2006 in
the version currently in force (implementation of Directive
. June 2015: Owner and Operator of the vessel, after paying the Euro 3,000 approx fine, approached Italian counsel to be advised and assisted in challenging the Euro 30,000 fine.
. July 2015: Italian counsel met informally with the Italian Coast Guard officers who, being part of SPA in Venice, were in charge of the case.
. July 2015: based upon due diligence run with the active co-operation of the vessel's Owner and Operator General Counsel, Italian counsel filed Defense brief with the Venice SPA demanding that no fine be applied, or, subordinately, that the minimum statutory fine ( equivalent to Euro 15,000 ) be applied.
. Aug.2015: a supplementary Defense brief was filed by Italian counsel, based upon a sequence of reports made available by independent Swiss laboratory, whereby samples of MGO on board the vessel taken at three different ports of call in her route after Venice had been analyzed, to prove that Owner and Operator had timely taken all possible action to remedy the contingent situation, the outcome
being that the MGO sulphur content got well below the statutory 0.1 percentage.
. Sept. 2015: Italian counsel attended formal hearing at the SPA offices in Venice, presenting orally his defense on behalf of Owner and Operator of the vessel.
. Oct. 2015: SPA in Venice issued its decision, whereby, after taking expressly into account the factual circumstances – namely extremely short period of management of the
vessel by new Operator and Owner prior to the June 2015 fine, as well as the immediate action taken to remedy the situation on board the vessel to avoid further mixing of MGO with HFO ( the fuel used for navigation ), and the fact that the Venice Customs Agency Lab's test had been properly copied to the vessel Operator Agent in Venice – ordered that the Euro 15,000 minimum statutory fine be paid.
. Nov. 2015: the fine was settled by Operator of the vessel, and the case closed.
Based upon the overall context of statutory provisions, the features of cruise line vessel operations in the Mediterranean, and Italian waters in particular, and the sequence of events in an actual case which I had the responsibility and privilege to handle in 2015, following are my personal friendly hints:
Carry on effective and thorough due diligence prior and after closing a deal whereby a vessel is turned into new Owner or Operator, allowing for covenants to claim damages out
of improper handling of safety, compliance etc. by previous Owner / Operator;
Take immediate action upon reports issued by independent inspection agents who have detected possible tampering with OCMs applied to OWS, namely have a thorough review of
bunker tanks where MGO and HFO are stored;
Make sure, by means of taking samples, that no contamination exists between MGO and HFO, and take immediate consistent action to apply new, focused change-over procedures or
proceed to washing bunker tanks completely;
Make sure that proper and effective communications are in place between Owner / Operator Head Offices and local agents at ports of call of a fleet or vessel, so that any and all matters relating to the operations of a fleet or a vessel are timely and fully advised to Head Offices;
In the event that a fine is issued by SPA, make sure that the local agent at the ports of call of a fleet or a vessel timely and fully report to Head Offices any correspondence however related to the subject matter, including laboratory test reports of MGO or other fuels advised by SPA or its agents;
Through Head Offices lines of communications, make sure that policies and procedures are
applied and enforced on all vessels and at any port of call of a fleet or a vessel;
Local counsel should be always hired in order to advise about which course of action may be taken to remedy contingent situations ( e.g fines ), or, possibly, to avoid them tout court by means of a constructive and effective compliance assistance to Head Offices on a continuous, long term basis;
Cruise lines Head Offices should perceive the crucial importance that their fleet or vessels be not considered actual or possible offenders by SPA, particularly in areas of operation, like the Mediterranean and Italian waters, where defense of the sea and prevention of pollution are strategic to a specific country, or to an area, like the European Union.
Giuseppe Lorenzo Rosa, Esq.
M.A Business Law, Italy.