CHAPTER 15

POLLUTION

 

PURPOSE OF CHAPTER AND MISSION

This chapter of the Title is largely directed to the implementation of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL) (subpart 15(A)); the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, and the Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil, 1973 (INTERVENTION), International Convention on Oil Pollution Preparedness, Response, and Cooperation, 1990 (OPRC) (subpart 15(B)); and the International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, 1972 (London Dumping Convention or LDC) (subpart 15(C)). Also included in this chapter is model legislation addressing the issues of liability and compensation as discussed in these conventions. (Note that though these issues are closely related to general shipowner liability, that broad subject is outside the scope of this Title.) Additionally, a model framework for regulatory control of, and authority for matters of domestic marine pollution prevention, including any governmental response authority, is also provided.

THE U.S. COAST GUARD

The U.S. Coast Guard enforces a variety of U.S. laws designed to protect the marine environment. U.S. Coast Guard personnel actively enforce water pollution laws by attempting to detect and investigate each instance of pollution. It uses vessel and aircraft patrols, and receives reports of pollution incidents. The Coast Guard is also authorized to impose and collect penalties for violations of U.S. marine pollution laws. The U.S. Coast Guard cooperates closely with other U.S. agencies, especially the U.S. Environmental Protection Agency and the U.S. National Oceanic and Atmospheric Administration.

INTERNATIONAL LAW

International law and international agreements are a major source of pollution prevention standards imposed upon the commercial shipping industry. Various international agreements also establish frameworks for cooperation among states responding to significant pollution incidents. Among the most important international instruments on pollution are: the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL); the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, and the Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil, 1973 (INTERVENTION); International Convention on Oil Pollution Preparedness, Response, and Cooperation, 1990 (OPRC); and the International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, 1972 (London Dumping Convention or LDC). These international conventions address: (1) regulations for the prevention of pollution (MARPOL); (2) response to pollution (INTERVENTION and OPRC); and (3) the regulation of ocean dumping (LDC). In addition, the issues of liability and compensation for damage caused by oil pollution from tankers are addressed in the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC), and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (FUND), and their respective amending Protocols of 1976, 1984, and 1992.

The following subparts contain draft legislative language.

Prevention of Pollution From Ships

Subpart 15(A)

Article 15.1 Definitions.

Unless the context indicates otherwise, as used in this chapter:

Dumping. "Dumping" means any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms, or other man-made structures at sea; and any deliberate disposal at sea of vessels, aircraft, platforms, or other man-made structures. "Dumping" does not include the disposal at sea of wastes or other matter incidental to, or derived from, the normal operations of vessels, aircraft, platforms, or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms, or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures; nor does it include the placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of the London Dumping Convention.

Hazardous substances other than oil. "Hazardous substances other than oil" means:

(A) substances enumerated in the list annexed to Intervention Protocol, and,

(B) other substances which are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and which, under the circumstances present at the time of a response, can reasonably pose a grave and imminent danger analogous to that posed by any of the substances enumerated in the list referred to in paragraph (A).

Intervention. "Intervention" means any detrimental action taken against the interest of a ship or its cargo without the consent of the ship’s owner or operator.

Intervention Convention. "Intervention Convention" means the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969.

Intervention Protocol. "Intervention Protocol" means the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other Than Oil, 1973.

London Dumping Convention. "London Dumping Convention" means the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.

Marine casualty. "Marine casualty" means a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo.

MARPOL. "MARPOL" means the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol, and includes all annexes and protocols, as amended, and in effect for [State]; and "discharge", "harmful substance", and "ship" have the meanings provided in MARPOL.

Offshore unit. "Offshore unit" means any fixed or floating offshore installation or structure engaged in gas or oil exploration, exploitation or production activities, or loading or unloading of oil.

Oil. "Oil" means petroleum in any form including crude oil, fuel oil, sludge, oil refuse, and refined products.

OPRC. "OPRC" means the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990.

Person. The term "person" means any individual (whether or not a citizen or national of [State]), any corporation, partnership, association, or other entity, and any national, local, or foreign government or any entity of such government.

Response or respond. "Response" or "respond" means measures taken prior to or following a discharge of oil (or hazardous substances other than oil) as may be necessary to minimize or mitigate damage to the public health or welfare.

Sea. "Sea" means all marine waters other than the internal waters of any state.

Sea ports and oil handling facilities. "Sa ports and oil handling facilities" means those facilities which present a risk of an oil pollution incident and includes, but is not limited to, sea ports, oil terminals, pipelines, and other oil handling facilities.

Ship. "Ship" means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, and floating craft of any type.

Vessels and aircraft. "Vessels and aircraft" means waterborne or airborne craft of any type whatsoever. This expression includes air-cushioned craft and floating craft, whether self-propelled or not.

Wastes or other matter. "Wastes or other matter" means material and substance of any kind, form, or description.

Article 15.2 Applicability.

(A) This subpart shall apply, in accordance with international law:

(1) to ships entitled to fly the flag of [State], wherever located; and,

(2) to foreign ships while in the internal waters, territorial sea, and exclusive economic zone of [State].

(B) This subpart shall not apply to any [foreign] warship, Maritime Force auxiliary, or other ship owned or operated by a state [other than [State]] when engaged in government non-commercial service.

Article 15.3 Directives.

(A) The Minister shall prescribe directives to administer and enforce MARPOL, other treaties and agreements to which [State] is a party, and this subpart. Such directives shall include, but need not be limited to:

(1) requirements, obligations, and prohibitions prescribed in, or required to effectuate the purposes of, MARPOL and other treaties and agreements to which [State] is a party;

(2) procedures for the issuance, revocation, or suspension of certificates, by the Commandant, prescribed in, or required to effectuate the purposes of, MARPOL and other treaties and agreements to which [State] is a party; and,

(3) procedures and authorities for ship inspections, investigations respecting possible violations, and referrals of violation cases to other states as prescribed in, or required to effectuate the purposes of, MARPOL and other treaties and agreements to which [State] is a party.

(B) The Minister shall prescribe any additional necessary directives which, consistent with maritime safety, establish requirements for procedures, methods, and equipment to prevent and contain discharges of harmful substances.

Article 15.4 Enforcement.

(A) Subject to the rights and limitations in Chapter 3, an officer with general law enforcement authority may at any time hail, stop, and board any vessel subject to [State] jurisdiction and take all necessary action to enforce the provisions of [State] law, this chapter, and any directives issued under the authority of this chapter and execute any legal process issued by an officer or court of competent jurisdiction.

(B) Officers with general law enforcement authority are authorized to seize and secure any vessel and to arrest any person liable to arrest by virtue of any law or directive, and to use the minimum necessary force to seize or arrest the same.

(C) In addition to enforcing the provisions of this chapter and other related [State] law and directives, the Maritime Force shall prepare the necessary documentation to support a violation or violations of this chapter, [State] law, or directive.

Article 15.5 Duties and Prohibitions.

It is unlawful to act in violation of MARPOL, any other treaty or agreement to which [State] is a party, this subpart, or any directive issued under this subpart.

Article 15.6 Penalties.

(A) The Maritime Force may assess a civil penalty for violation of this subpart or directives issued under this subpart. The owner, charterer, managing operator, agent, master, and individual in charge of a vessel violating the provisions of this subpart shall each be guilty of an offense, and subject to a penalty of [appropriate sanction].

(B) If a violation of tis subpart is committed by a vessel registered in a state with similar laws and directives on safe manning levels, the Commandant, acting in coordination with the Minister of State, may refer the matter to the government of the state of the vessel’s registry or nationality rather than assessing a penalty.

Pollution Preparedness & Response

Subpart 15(B)

Article 15.7 Application.

(A) This subpart applies to:

(1) ships entitled to fly the flag of [State], wherever located;

(2) foreign ships while in the internal waters, territorial sea, and exclusive economic zone of [State];

(3) offshore units, seaports, and oil handling facilities under the jurisdiction of [State];

(4) facilities, ships, and agencies of [State];

(5) ships in the internal waters and territorial sea of [State]; and,

(6) discharges or probable discharges from ships in the internal waters and territorial sea of [State], and waters seaward of the territorial sea of [State].

(B) This subpart shall not apply to any [foreign] warship, Maritime Force auxiliary, or other ship owned or operated by a state [other than [State]] when engaged in government non-commercial service.

Article 15.8 Directives.

(A) The Minister shall prescribe directives to administer and enforce OPRC and this subpart. Such directives shall include, but need not be limited to:

(1) requirements, obligations, and prohibitions prescribed in, or required to carry out the purposes of, OPRC;

(2) procedures and authorities for oil pollution emergency plans; pollution reporting procedures; handling of oil pollution reports; a national contingency plan; coordination and cooperation with international organizations, other governments, and interested or affected industries; the designation of national operational contact points responsible for the receipt and transmission of oil pollution reports; and the transmission of related information and other matters prescribed in, or required to carry out the purposes of, OPRC;

(3) procedures and authorities for inspection, investigations in respect to possible violations of OPRC as prescribed in, or required to effectuate the purposes of, OPRC; and,

(4) designated as the competent national authority with responsibility for oil pollution preparedness and response, including the authority responsible for determining whether assistance should be requested or requested assistance should be rendered.

(B) The Minister shall prescribe any additional necessary directives which, consistent with maritime safety, establish requirements for methods, procedures, and equipment to prepare for and to conduct response activities.

Article 15.9 Enforcement.

(A) Subject to the rights and limitations in Chapter 3, an officer with general law enforcement authority may at any time hail, stop, and board any vessel subject to [State] jurisdiction and take all necessary action to enforce the provisions of [State] law, this chapter, and any directives issued under the authority of this chapter and execute any legal process issued by an officer or court of competent jurisdiction.

(B) Subject to provisions in this subpart, the Commandant is authorized to carry out responses relating to discharges or probable discharges of oil or hazardous substances other than oil. In carrying out provisions of this paragraph, the Commandant may:

(1) make a determination that a substance is a hazardous substance other than oil;

(2) remove or arrange for the removal of the discharged oil (or hazardous substance other than oil) from the water or adjacent land area;

(3) mitigate a probable discharge or prevent a discharge resulting from a probable discharge;

(4) minimize or mitigate damage to the public health or welfare which reults, or may result, from a discharge or probable discharge;

(5) direct or monitor all governmental or private actions which are responding to the discharge or probable discharge; or,

(6) destroy a ship which is the source of a discharge or which poses the threat of a probable discharge.

(C) In a response constituting an intervention, taken in waters seaward of the territorial sea of [State], against the interest of a foreign ship or its cargo, the authority set forth in this subpart may be exercised only in accordance with this paragraph. No measures constituting an intervention may be taken against any foreign warship or other ship owned or operated by a state other than [State], located in waters seaward of the territorial sea of [State], and used, for the time being, only on government non-commercial service.

(D) Response measures constituting an intervention may be taken where necessary to prevent, mitigate, or eliminate grave and imminent danger to the coastline or related interests of [State] from pollution or threat of pollution by oil (or hazardous substances other than oil), following a marine casualty, (or acts related thereto), which may reasonably be expected to result in major harmful consequences.

(E) Measures taken under this subpart shall:

(1) be subject to the notification and consultation requirements of Intervention Convention and Intervention Protocol, and,

(2) be subject to the other requirements, limitations, and restrictions of Intervention Convention and Intervention Protocol.

(F) In addition to enforcing the provisions of this chapter and other related [State] law and directives, the Maritime Force shall prepare the necessary documentation to support a violation or violations of this chapter, [State] law, or directive.

Article 15.10 Duties and Prohibitions.

(A) It is unlawful to act in violation of OPRC, this subpart, or any directive issued under the authority of this subpart.

(B) It is unlawful to wilfully fail or to refuse wilfully to comply with a lawful direction of the Commandant.

Article 15.11 Penalties.

(A) The Maritime Force may assess a civil penalty for violation of this subpart or directives issued under this subpart. The owner, charterer, managing operator, agent, master, and individual in charge of a vessel violating the provisions of this subpart shall each be guilty of an offense, and subject to a penalty of [appropriate sanction].

(B) If a violation of this subpart is committed by a vessel registered in a state with similar laws and directives on safe manning levels, the Commandant, acting in coordination with the Minister of State, may refer the matter to the government of the state of the vessel’s registry or nationality rather than assessing a penalty.

Ocean Dumping

Subpart 15(C)

Article 15.12 Applicability.

(A) This subpart applies to:

(1) vessels and aircraft registered in [State] or flying the flag of [State];

(2) vessels and aircraft of any registry or flag; and,

(3) dumping within waters of the territorial sea and the exclusive economic zone of [State].

(B) This subpart shall not apply to any [foreign] warship or other ship owned or operated by a state [other than [State]] when engaged in government non-commercial service.

Article 15.13 Directives.

The Commandant shall prescribe directives to administer and enforce the London Dumping Convention and this subpart. Such directives shall include, but need not be limited to:

(A) requirements, obligations, and prohibitions prescribed in, or required to carry out the purposes of, the London Dumping Convention;

(B) procedures for the application for and the issuance, revocation, or suspension by the Commandant of permits prescribed in, or required to carry out the prposes of, the London Dumping Convention; and,

(C) procedures and authorities for ship inspections, investigations in respect to possible violations, and referrals of violation cases to other states as prescribed in, or required to carry out the purposes of, the London Dumping Convention.

Article 15.14 Enforcement.

(A) Subject to the rights and limitations in Chapter 3, an officer with general law enforcement authority may at any time hail, stop, and board any vessel subject to [State] jurisdiction and take all necessary action to enforce the provisions of [State] law, this chapter, and any directives issued under the authority of this chapter and execute any legal process issued by an officer or court of competent jurisdiction.

(B) Officers with general law enforcement authority are authorized to seize and secure any vessel and to arrest any person liable to arrest by virtue of any law or directive, and to use the minimum necessary force to seize or arrest the same.

(C) In addition to enforcing the provisions of this chapter and other related [State] law and directives, the Maritime Force shall prepare the necessary documentation to support a violation or violations of this chapter, [State] law, or directive.

Article 15.15 Duties and Prohibitions.

(A) It is unlawful to act in violation of the London Dumping Convention, this subpart, or any directive issued pursuant to this subpart.

(B) Except as authorized by a permit and directives issued pursuant to this subpart, no person shall:

(1) load a vessel or aircraft at any location in [State] with wastes or other matter intended for dumping at sea, or,

(2) operate a vessel or aircraft which has been so loaded.

(C) Except as specified in paragraph (D) of this article, as authorized by a permit issued pursuant to this chapter, and subject to directives issued pursuant to this chapter, no person shall operate a vessel or aircraft (of any registry or flag), which is dumping, has dumped, or intends to dump at sea wastes or other matter.

(D) The provisions of Article 15.14(C) do not apply where dumping is necessary to secure the safety of human life or of vessels, aircraft, platforms, or other man-made structures at sea in cases of force majeure caused by stress of weather, or in any case which constitutes a danger to human life or a real threat to vessels, aircraft, platforms, or other man-made structures at sea, if dumping appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping will be less than would otherwise occur.

Article 15.16 Penalties.

(A) The Maritime Force may assess a civil penalty for violation of this subpart or directives issued under this subpart. The owner, charterer, managing operator, agent, master, and individual in charge of a vessel violating the provisions of this subpart shall each be guilty of an offense, and subject to a penalty of [appropriate sanction].

(B) If a violation of this subpart is committed by a vessel registered in a state with similar laws and directives on safe manning levels, the Commandant, acting in coordination with the Minister of State, may refer the matter to the government of the state of the vessel’s registry or nationality rather than assessing a penalty.

 

 

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