The penal law of ship-source marine pollution: Selected issues in perspective

Law of the Sea, Environmental law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah

Volumn , Issue , 2007, Pages 463-496

  Mukherjee, Proshanto K ^a,b,c,d  

^a WORLD MARITIME UNIVERSITY   (Sweden)

^b SWANSEA UNIVERSITY   (United Kingdom)

^c Nautical Institute   (United Kingdom)

^d Royal Institute of Navigation   (United Kingdom)

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[No Author keywords available]

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EID: 84882726381     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1163/ej.9789004161566.i-1188     Document Type: Chapter

References (51)

1. T.A. Mensah, "Legal Problems Relating to Marine Pollution by Oil", in P. Hepple (ed.), Water Pollution by Oil, Proceedings of Seminar Sponsored by the Institute of Water Pollution Control and the Institute of Petroleum, published by the Institute of Petroleum, London, 1971, at p. 293.
2. P.K. Mukherjee and R.S. Lefebvre, "Fishermen and Oil Pollution Damage: The Regimes of Compensation", in J.-L. Chaumel (ed.), Labour Developments in the Fishing Industry, Canadian Special Publication of Fisheries and Aquatic Sciences 72, at p. 74.
3. See C. de la Rue, "Pollution from Ships: EU Directive on Criminal Sanctions for Ship-Source Pollution", Paper presented at International Colloquium on Maritime Legal Liabilities, Swansea, 14-15 September 2006.
4. 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972.
5. See MARPOL 73/78 Convention, Annex I, Regulations 19 and 20. All references to provisions in MARPOL are to the Consolidated Edition 2006.
6. It is to be noted that "States" is used in contra-distinction to "States Parties"; the latter being a defined term in article 1.2(1). This signifies that the substantive law contained in this provision, among others, is applicable to all States regardless of whether they are States Parties. It reinforces the argument that the substantive law of the LOS Convention is essentially a codification of customary international law.
7. In paragraph 3, subparagraphs (a), (b) and (c), respectively, the sources are expressly mentioned which include dumping, vessel-source pollution, and pollution from the seabed and subsoil.
8. Article 194.3(b) which also requires States to regulate the design, construction, equipment, operation and manning of vessels.
9. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989.
10. International Convention for the Control and Management of Ship's Ballast Water and Sediments, 2004.
11. International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990.
12. HNS Protocol, 2000.
13. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972; Protocol of 1996.
14. "Maritime casualty" is defined in paragraph 2 to mean a collision, stranding or other incident of navigation, etc. resulting in material damage or imminent threat of such damage to a vessel or cargo.
15. International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969.
16. International Convention on Salvage, 1989.
17. See articles 5 and 9.
18. The five Annexes cover, respectively, oil, noxious liquid substances, packaged harmful substances, sewage and garbage.
19. The "special areas" are designated bodies of water specified in Regulation 1, paragraph
20. of Annex I. For the purposes of Annex V the special areas are specified in Regulation 5(1) of that Annex. The other Annexes do not have provisions relating to special areas. The term "nearest land" refers to territorial sea baselines other than in the case of the Australian coast where it is by reference to geographical coordinates specified in the definition. See MARPOL Annex I, Regulation 1, paragraph 10.
21. International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001.
22. International Convention on Civil Liability for Oil Pollution Damage, 1992.
23. International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992; Supplementary Fund Protocol, 2003.
24. International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996.
25. International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.
26. The only sanction that is specifically provided for in the Conventions is detention. See e.g., LOS Convention articles 219 and 220.6; and MARPOL 73/78 article 5(2) and Annex I, regulation 6.3.3 and regulation 11, paragraphs 1 and 2. Detention is essentially an administrative sanction and in many jurisdictions can be imposed without resort to the courts.
27. See e.g., article 4(1) of MARPOL which provides: "Any violation of the requirements of the present Convention shall be prohibited and sanctions shall be established therefor under the law of the Administration of the ship concerned wherever the violation occurs."
28. See e.g., article 4(4) of MARPOL which provides as follows: "The penalties specified under the law of a Party pursuant to the present article shall be adequate in severity to discourage violations of the present Convention and shall be equally severe irrespective of where the violations occur."
29. See, for example, section 72(1) of the Merchant Shipping (Marine Pollution) Law, 2001 of the Cayman Islands, which makes failure by an owner or master of a ship to comply with any statutory requirements of Chapter II of Part V of the Law an offence punishable as provided in that section. Notably, Part V is captioned "Prevention of Pollution from Ships" and Chapter II "Prevention of Pollution by Oil". Part V gives effect to MARPOL 73/78 and Chapter II specifically gives effect to Annex 1 of the Convention.
30. P.K. Mukherjee, Maritime Legislation, Malmo: WMU Publications, 2002, at pp. 128-129.
31. It is to be noted, however, that the question of whether or not a convention is self-executing is of notorious difficulty; and, in the final analysis is a judicial determination. See supra, note 32, at pp. 127-128 and footnotes 3, 14 and 15, at p. 140 as cross-references. See in particular Frolova v. U.S.S.R., 761 F. 2d 270, at 373 (7th Circ. 1985) and Diggs v. Richardson, 555 F. 2d 848, at 851 (D.C. Circ. 1976) cited in footnote 15 at that page.
32. Thabo Mali v. R., [1954] 1 All ER 373; [1954] 1 WLR 228 (P.C.) In this case the Privy Council considered both English as well as Roman-Dutch law.
33. Similarly, an offence corresponds to a breach in contract law which is also a branch of private law.
34. Sir H. Maine, Ancient Law, London: Oxford University Press, new edn 1931, at p. 307. See also pp. 308-331 where the Roman, Greek, Germanic, Teutonic and Anglo-Saxon legal systems are discussed.
35. G. Williams, Textbook of Criminal Law, 2nd edn, London: Stevens & Sons, 1983, at pp. 27-29.
36. B.A. Garner, A Dictionary of Modern Legal Usage, New York: Oxford University Press, 1987, at p. 161. See also J. Pearsall (ed.), The New Oxford Dictionary of English, Oxford: Oxford University Press, 1998, p. 2001. See also Nix. v. Whiteside (1986), 475 U.S. 157.
37. [1931] A.C. 324 (P.C.).
38. The notion was exemplified by Lord Reid in Sweet v. Parsley, [1970] A.C., at p. 839.
39. [1978] 40 Can. Crim. Cas. (2d) 353 (S.C.C.).
40. R.S.O. 1970, c. 332, previously the Ontario Water Resources Commission Act, renamed by 1972, c.1, s.70(1).
41. Professor Glanville Williams states that, "[T]here is a half-way house which has not yet been properly utilized, and that is responsibility for negligence". See Glanville Williams, Criminal Law, 2nd edn, London: Stevens, 1961, at p. 262.
42. See e.g., R. v. Custeau (1971), 6 Can. Crim. Cas. (2d) 179, [1972] 2 O.R. 250 where McKay J.A. in the Ontario Court of Appeal made reference to "an offence of strict liability (sometimes referred to as absolute liability)".
43. Merchant Shipping (Prevention of Oil Pollution) Regulations, 1996, SI 1996/2154, reg. 36(3).
44. Cayman Islands Merchant Shipping (Marine Pollution) Law, 2001, section 72(2).
45. The term means statutory relief from prosecution if a sum stipulated by law is paid by the offender to the appropriate government authority. See e.g. Ghana Shipping Act, 2003, s. 457, which provides that a person in custody suspected of having committed an offence or a ship detained in respect of an offence may be released upon payment of a stipulated sum of money to the Ghana Maritime Authority, and no further proceedings are to be instituted in respect of that offence.
46. These violations refer to the criminalisation and unfair treatment of seafarers in the Erika, Prestige and Tasman Spirit oil spill incidents. In the Tasman Spirit, incident, the salvage master was also subjected to the deplorable treatment.
47. R.R. Churchill & A.V. Lowe, The Law of the Sea, 3rd edn, Manchester: Manchester University Press, 1999, at p. 169.
48. Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, [2005] O.J. (L 255), 11, >europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0011:0021:EN:PDF< (4 November 2005).
49. Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, [2005] O.J. (L 255), 164, >europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2005/l_255/l_25520050930en01640167.pdf< (4 November 2005).
50. Judge T.A. Mensah, The Eighth Cadwallader Memorial Lecture, "The Extra-Territorial Jurisdiction in Criminalisation Cases: Sovereign Rights in Legislation and New Risks for the Shipping Industry", London Shipping Law Centre, 4 October 2005.
51. See S. Speares, "EU criminalisation rules rapped by Law of Sea judge", Lloyd's List, 6 October 2005, at p. 2 and Fairplay, 5 October, 2005.