3.3 Implementing and enforcing the rules
MARPOL Annex VI applies irrespective of the maritime zone concerned. The fuel quality requirements in SECAs accordingly apply in the entire SECA, irrespective of whether the violation takes place on the high seas, or in the coastal waters (exclusive economic zone (EEZ), territorial sea or internal waters) of a state. Under the convention’s article 4(1), the flag state administration shall accordingly prohibit violations and establish sanctions “wherever the violation occurs”. (1) The relevant passage of MARPOL article 4(1) reads in full: “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.”
The enforcement provisions of Annex VI, however, do not provide for any at-sea enforcement of the air pollution standards. Regulation 11 merely speaks about port state inspections and, even then, mainly refers to flag state enforcement measures on that basis.(2) Regulation 11(2) provides that [i]f an inspection indicates a violation of this Annex, a report shall be forwarded to the Administration for any appropriate action." However, a right for the port state to detain the ship until compliant fuel has been purchased is implicit in regulation 18(10)(2). (3) The subparagraph provides that "[i]n connection with port State inspections carried out by Parties, the Parties further undertake to... ensure that remedial action as appropriate is taken to bring noncompliant fuel oil discovered into compliance." In any case, regulation 11(6), (4) Quoted in section 4.2 below. like MARPOL article 9(2), (5) This paragraph, which was drafted in 1973 and thus preceded UNCLOS provides: ”Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to resolution 2750 C(XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.” clarify that when it comes to jurisdictional matters, the convention is not intended to affect the application of general international law or law of the sea.(6) See also text at notes 120-123 below. Those references to the law of the sea ensure that a broader jurisdiction is available to port states in particular than what a mere reading of the MARPOL provisions would suggest.
The Directive determines its prescriptive reach by reference to the maritime zones of the member states. The wording of article 6(2) requires EU member states to “take all necessary measures to ensure that [non-compliant] marine fuels are not used in the areas of their territorial seas, exclusive economic zones and pollution control zones falling within SOx Emission Control Areas”.(7) Both paragraphs specifically emphasize that ships whose journeys began outside the EU are covered within this scope. When it comes to enforcement, the Directive emphasizes the obligations of flag and port states, the latter being given a more independent role in the enforcement than under MARPOL. For example, article 13(2)(b) of the Directive foresees that on-board sampling and analysis of fuel are undertaken by port states "as appropriate" and "where technically and economically feasible". These requirements have subsequently been further strengthened and quantified.(8) Commission Implementing Decision 2015/253 laying down the rules concerning the sampling and reporting under Council Directive 1999/32/EC as regards the sulphur content of marine fuel. Under article 3(2) of the decision the sulphur content of the marine fuel being used on board shall be checked by sampling or analysis or both on at least 40 per cent of the inspected ships referred fully bordering SECAs and 30% of the inspected ships in member states partly bordering SECAs. In article 5 it is explained that sampling and analysis include either analysis of the MARPOL samples or on-board spot sampling or both.By contrast, coastal state enforcement is only optional under the second paragraph of the article 6(4), providing that “Member States may also take additional enforcement action in respect of other vessels in accordance with international maritime law.”
In practical terms the ship is obliged to demonstrate the sulphur content of the fuel oil carried on board by means of two main documents. First, regulation 18(5) of MARPOL Annex VI requires that "details of fuel oil for combustion purposes delivered to and used on board shall be recorded by means of a bunker delivery note." The minimum requirements on the content of the bunker delivery note ('BDN') are specified in Appendix V to Annex VI and only include the name, quantity, density and sulphur content of the fuel oil delivered.(9) Article 18(6) further specifies that "the bunker delivery note shall be kept on board the ship in such a place as to be readily available for inspection at all reasonable times. It shall be retained for a period of three years after the fuel oil has been delivered on board." See also para. 18(9)(3) requiring parties to "require local suppliers to retain a copy of the bunker delivery note for at least three years for inspection and verification by the port State as necessary". This document is among the documents to be inspected by port state control (PSC) in any state and shall be retained for a period of three years after the fuel oil has been delivered on board. Second, regulation 14(6) ships using separate fuel oils to comply with the SECA requirements, "shall carry a written procedure showing how the fuel oil change-over is to be done."(10) The same paragraph clarifies that "the volume of low sulphur fuel oils in each tank as well as the date, time, and position of the ship when any fuel-oil-change-over operation is completed prior to the entry into an Emission Control Area or commenced after exit from such an area, shall be recorded in such log-book as prescribed by the Administration."
In addition, regulation 18(8)(1) requires a representative fuel oil sample (the so-called 'MARPOL sample') to be carried on board to determine whether the fuel oil delivered to and used on board ships complies with the Annex VI requirements. The sample shall be carried on board until the fuel oil concerned is consumed, but in any case for at least a year, and can be analysed by the flag state administration in accordance with a verification procedure outlined in Annex VI, appendix VI.
To assist officials inspecting ships for the purpose of verifying compliance with the requirements, the European Maritime Safety Agency (EMSA) has prepared sulphur inspection guidance.(11) European Maritime Safety Agency, Sulphur Inspection Guidance, 6th May, Version: 1st June 2015, available e.g. at www.emsa.europa.eu/work/jobs/download/3503/2407/23.html. More recently, IMO has adopted guidelines for on-board sampling methods to enable effective control and enforcement.(12) IMO Circular MEPC.1/Circ.864 entitled “Guidelines for Onboard Sampling for the Verification of the Sulphur Content of the Fuel Oil Used On Board Ships”, adopted in October 2016.
In conclusion, while the material standards are more or less identical at global and EU level, the scope of the enforcement obligations include some differences. EU rules are somewhat broader when it comes to the role of port states, but the geographical reach is limited to member states' coastal waters and coastal state enforcement is purely optional. In practice port states are considerably more involved in the enforcement of the rules than what MARPOL suggests, but the practicalities relating to the enforcement have so far received more attention at EU-level than at IMO. The global 0.5% sulphur cap which will apply as from 1 January 2020 is expected to increase IMO's attention to implementation in the coming years.