On 1 January 2013, new Marpol Regulations came into force with regard to the disposal of garbage from ships at sea and largely prohibit the practice. As a result, it will become common practice for ships to send their garbage to shore based reception facilities.
Marpol Annex V Regulations not only impact on what could be classed “traditional garbage” but also concern the issue of hold washing water removal and discharge of “cargo residues”. Remains of cargo in wash water are defined in the regulations as “cargo residues.”.
As the Marpol Annex V Regulations are voluminous, this article will only focus on their impact in relation to discharge of cargo residues and hold washing water. As this is very new legislation the law is yet to develop fully.
The starting point
The starting point to understanding how this new regulation impacts on shipowners, operators, charterers and shippers is to consider the nature of the (1) cargo carried; and (2) the hold cleaning chemicals used.
It is necessary to consider:
- Is the cargo “harmful” to the marine environment?
- Are the hold cleaning chemicals “harmful”?
If the answer to either question is positive then Marpol Annex V will have an impact.
Is the cargo harmful?
The Annex V guidance notes state that, if the cargo meets certain criteria listed in the UN Globally Harmonized System for Classification and Labelling of Chemicals, then the cargo is harmful to the marine environment.
IMO Guidelines state the shipper has an obligation to declare whether or not the cargo is harmful when providing the information required by section 4.2 of the IMSBC Code.
If the cargo is classified as harmful to the marine environment, then the hold washing water (i.e. “cargo residues”) has to be kept onboard and safely discharged into reception facilities ashore in all cases.
If cargoes that are harmful are carried, then this has to be fully documented in onboard records/the garbage book.
Non-harmful cargo and bilges
If the vessel is laden with non-harmful cargo and liquid is being collected in the vessel’s bilges whilst laden, then this liquid can be discharged at sea, subject to any other Marpol requirements.
Harmful cleaning chemicals
Whether hold cleaning materials are harmful depends on whether they contain any carcinogenic, mutagenic or reprotoxic components. This should be clear from the Material Safety Data Sheet (MSDS)/product information. If the cargo is not harmful, but the holds were cleaned with hold cleaning chemicals which are harmful, then it is likely that the hold washing water would have to be kept onboard and discharged into reception facilities ashore.
Non-harmful cargo and cleaning chemicals
If the cargo (and any cleaning chemicals used) are not harmful to the marine environment then hold washing water can be discharged at sea, within areas in which discharge is allowed, subject to any other Marpol requirements.
If the ship is in a Marpol “Special Area”, discharge into the sea is only permitted (i) if the port of departure and next port of destination are both within a Special Area AND (ii) no adequate reception facilities are available at the port of departure and destination.
Marpol Special Areas are the Baltic Sea, North Sea, Mediterranean, the Gulfs Area, Wider Caribbean Region and the Antarctic Sea. Eventually, once shore reception facilities are available in the Black Sea and Red Sea, these regions may be classified as Special Areas for the discharge of garbage.
Developing standard clauses
It is clear that that this regulation will have a major impact on owners, operators, charterers and shippers. As a result, over time new clauses will be created to try and clarify between the parties on whose risk non-compliance with Marpol Annex V falls.
Owners, operators and charterers may be aware of BIMCO’s August 2006 “BIMCO Hold Cleaning/Cargo Residue Clause”. However, as this was produced prior to Marpol Annex V coming into force, it does not address the new issues raised by this particular Annex.
The North of England P&I Club has produced specific clauses for both voyage charters and time charters that aim to respond to the new Annex V. In due course, it is naturally likely that further bespoke clauses will be created that will reflect both the risks of non-compliance, as its meaning comes to be clarified, and the negotiating strengths of the parties to the contracts.
For owners and operators it will be important that a proper protocol is put in place not only to ensure that the precise nature of the cargo is known, but also the hold cleaning chemicals used. Ideally this protocol would require the shippers not only to provide a declaration that the cargo is not harmful, but also provide supporting data such as MSDS.
Owners and operators will also have to maintain a proper and detailed record of this information (and the usage of any hold cleaning chemicals) onboard the vessel.
While shippers are obliged to declare whether the cargo is harmful, in some circumstances it may be prudent for owners and operators to obtain expert verification of the cargo.
If on the other hand you are the shipper (or for that matter a charterer passing on the cargo designation from a shipper to an owner) you should recognise that this declaration of cargo is important information and that you may have an exposure if inaccurate information is given to the owner.
For more information, please contact Rory Butler, Partner, on +44 (0)20 7264 8310 or firstname.lastname@example.org, or Edward Waite, Associate, on +44 (0)20 7264 8266 or email@example.com, or your usual HFW contact.