5 Establishing the violation
A first step in any type of enforcement measure for violations of the MARPOL Annex VI requirements is to verify that the ship in question has actually violated the rules. This is for the authorities to demonstrate and without the presence of proof that a violation has taken place, there will be no case for enforcement, independently of the procedure involved. Exactly what level of proof is required to demonstrate the violation varies from one state to another(1) See e.g. EMSA Publication 'Addressing Illegal Discharges in the Marine Environment', 2013, available at www.emsa.europa.eu/publications/guidelines-manuals-and-inventories/item/1879-addressing-illegal-discharges-in-the-marine-environment.html p. 62: "In most legal systems, it is possible to present in court any type of evidence that is deemed useful to support the case. Depending on the legal system and practices, some types of evidence carry more weight, and some may have specific legal consequences such as reversing the burden of proof." and there is limited guidance on this matter in the international conventions.(2) But see the MEPC Guidelines referred to in note 26 above, the objective of which is "to establish an agreed method for sampling to enable effective control and enforcement of liquid fuel oil being used on board ships under the provisions of MARPOL Annex VI" (para.1).
The enforcement chain for marine pollution violations consists of several links and many authorities may be involved in establishing whether a violation has taken place, including coast guard, police, port state control, environmental and judicial authorities.
This matter cannot be dealt with in detail here, but it should be noted that the first indications of violations of the fuel quality requirements may be brought to the authorities attention in several ways. Information of potential non-compliance may, for example, be obtained from crew members, pilots, port authorities etc.(3) For an overview see e.g. EMSA Pollution Manual (note 60 above), pp. 51 See also MARPOL article 6(1) and the almost identical regulation 11(1) in Annex VI. : "Parties shall co-operate in the detection of violations and the enforcement of the provisions of this Annex, using all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting and accumulation of evidence." Under the PSC Directive, article 23(2), port authorities and pilots have obligations to report to the competent authorities if they discover that a ship "has apparent anomalies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment". New tools and technologies are increasingly being used for identifying suspected non-compliances by means of remote sensing, but the remote identification of a violation requires sophisticated technology.
While such indications may be helpful in targeting the ship for further inspections,(4) EU port state control procedures already includes a procedure for this type of notifications, under which the identified ship becomes a priority for a 'more detailed inspection'. (See Annex I II.2.B of Directive 2009/16 ('unexpected factors')). The process could easily be further strengthened by including a notification on the basis of remote sensing information among the 'overriding factors' which entail mandatory inspection in the next port under ibid. Annex I II.2A. they will not in themselves provide proof of a violation. As of today, at least, further confirmation is needed to establish a violation and this will normally be obtained by onboard inspections while the ship is in port.
A standard PSC inspection will normally cover at least an inspection of the relevant documents discussed in section 3.3, i.e. the IAPP certificate, BDN, written procedures for fuel oil change-over, the ship’s log books, and oil and other record books, tank plans and diagrams etc. However, if needed,(5) In the words of article 13(3) of the PSC Directive, "more detailed inspection shall be carried out ... whenever there are clear grounds for believing, after the inspection (of the certificates and documents), that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention. ‘Clear grounds’ shall exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew." the PSC inspection may also go beyond documentary checks to include a physical investigation of fuel tanks and piping, including samples from the fuel oil supply lines or tanks and an examination of relevant equipment (including scrubbers).(6) See section 3.3 above on the technical inspection guidelines developed by IMO and EMSA for this purpose. On-board investigations may also cover enquiries into the actions taken, or not taken by the ship’s crew, the procedures followed which requires formal statements by crew members to be recorded.
In case of suspicion, further investigations ashore are usually required to back up the onboard investigations, such as notably analyses of fuel samples by accredited laboratories. In certain cases it may also be necessary to undertake further interviews and recording of statement of land-based persons representing the ship's owner and charterer(s) or expert witnesses.
Finally, in some states, criminal proceedings call for separate investigations undertaken by the public prosecutor, once the case has been submitted to that authority. The purpose of such investigation is to establish more thoroughly the ramifications of the supposed violation by finding out what other fuels were on board, where they were purchased, whether the sample was taken according to applicable procedures and whether the crew member(s) actually knew what statements they gave or what documents they signed at the initial on-board inspection. Such a criminal investigation may sometimes occur with a significant delay, meaning that neither the ship nor the crew is longer available within the jurisdiction of the state concerned.(7) According to a study prepared by the Swedish Transport Agency (note 5), it is not uncommon that a year has passed from the alleged infringement at the time the public prosecutor decides whether or not bring the case to court (p. 49).
It is the combined, overall outcome of these investigations which will form the basis for assessing whether or not an infringement of the rules has taken place. While there is little formal guidance for courts on how to prove MARPOL Annex VI infringements, and little experience to date, it must be assumed that a particular emphasis will normally be given to the fuel samples taken on board the ships as further analysed by the port state and expert statements relating to them.