Author: nlnnpc-mashinaki

As of January 1, 2013 amendments to Marpol Annex V include new responsibilities in relation to cargo classifications which also apply to cargo residues in wash water. We have been advised of a number of recent incidents where members were approached by local inspectors regarding Marpol compliance due to concerns about the cargo classification as well as cases where shipowners and shippers have disagreed about the correct classification.

We note in this regard that Marpol Annex V provides that in relation to the discharge of wash water and any non-recoverable cargo residues the following applies:

• No discharge of cargo residues should occur less than 12 nautical miles from the nearest land or the nearest ice shelf.
• No discharge of cargo residues should occur within the six Marpol defined Special areas. (Mediterranean, Gulf, Baltic Sea, North Sea, the Caribbean and the Antarctic).
• Limits are placed on the discharge of wash-water containing non-recoverable cargo residues outside these special areas and outside the 12 nautical mile zone.

Accordingly, pursuant to Marpol, wash water containing cargo residues may only be discharged in the event that it is classified as non-Harmful to the Marine environment (non-HME) and is so described in the cargo declaration issued pursuant to the IMSBC-code (section 4.2). Any cargoes classified as HME may not under any circumstances be discharged as cargo residues in wash water but must be brought to a suitable facility for processing. We therefore recommend that any owners who expect to have cargo residues in wash water which they intend to discharge at sea, they pay particular attention to the requirements set out in Marpol and contact the shipper as soon as possible prior to receipt of the cargo and the IMSBC Shippers Declaration.

If there is any doubt about the HME classification of the cargo or the requirements of Marpol, we recommend that the shipper is asked to provide the full specification of the cargo and to  confirm the basis for the classification. Where necessary an expert should be consulted. We also draw your attention to the below link of the Marpol Overview of Annex V updated on 1 March 2018.

Simplified overview of the discharge provisions of the revised MARPOL Annex V

In the past year we have dealt with a number of cases in which Customs Fines were imposed in the Netherlands pursuant to disputes about the concentration levels of  the identifier “Solvent Yellow 124” which is present in duty-free bunkers.  Where concentration levels are outside  the regulatory norm, the vessel is suspected of having consumed bunkers which are not duty exempt and for which duties should have been paid.

In order to verify that vessels which claim that their bunkers are exempt from duties are in fact consuming duty-free bunkers, Customs officials will attend on board to sample the contents of the bunkertanks and test these samples for the concentration levels of “Solvent Yellow 124”. Pursuant to the applicable customs duty regulations the concentration should be between 6g/1000l and 9g/1000l and any variation beyond those values may constitute grounds to impose a fine.

In several cases shipowners have unsuccessfully appealed the fines with Customs and subsequently taken the matter to court. In almost all of these cases the courts have ruled against the shipowner, even in cases where:

1. The fine was only imposed a considerable time after the samples were taken;
2. Minor deviations from the regulatory norm are sufficient to impose a fine; and
3. The shipowner did not participate in the analysis of the samples.

In a case before the Court in Gelderland, a shipowner did succeed in having the fine overturned but it involved a case in which the deviation was minimal and the Customs officials had only tested the samples 5 months after they were taken.

We recommend the following measures for members and insureds who consume duty free bunkers:

• Retain copies of all purchase orders and delivery notes;
• Take a sealed sample of each bunker delivery;
• Ensure that as part of any inspection comparative samples are taken and retained on board;
• Always react promptly to any communications or invitations from Customs pursuant to any inspection.

In light of the fact that Customs fines are sometimes only imposed years after the initial inspection, we recommend that this information be retained as long as reasonably possible, in particular if there has been an Customs inspection on board your vessel.