6.1 General
Proof that a ship has violated the air emission standards is not necessarily enough for the coastal or port state to impose sanctions for the violation. For a sanction to be successfully imposed on a person who has infringed the rules, the national requirements on persons that can be held liable and the acts or omissions that count for the purpose also need to be satisfied, along with applicable exceptions and defences.
With regard to the details of sanctions, international law offers very limited guidance. The UNCLOS enforcement provisions are laid down in permissive terms for coastal and port states in the sense that these states may institute proceedings with respect to violations by foreign ships of the international rules, but there is no obligation to do so.(1) Articles 218(1) and 220(1) MARPOL and EU law go somewhat further by obliging states to have a sanctions regime in place to deal with violations, but fall short of requiring states to use them.(2) MARPOL article 4(2) specifically provides that violations within their jurisdiction shall be prohibited in their legal systems and that sanctions shall be established for violations. Moreover, port and coastal states shall, whenever a violation occurs within their jurisdiction, either notify the flag state or "cause proceedings to be taken in accordance with its law". The Sulphur Directive requires member states to "determine the penalties applicable to breaches of the national provisions adopted pursuant to this Directive" and establishes certain main principles for such penalties. Directive 2008/99 on the protection of the environment through criminal law (OJ 2008 L 328/28) requires member states to ensure that certain conduct (including violation of the fuel quality requirements committed intentionally or with at least serious negligence) constitutes a criminal offence, and include certain main principles and requirements with respect to the penalties to be applied, but always leaves the decision on whether to prosecute in an individual case to the national authorities. See also para. 10 of its preamble.
MARPOL and EU law are similarly open as to whether the sanction for violations of the fuel quality rules should be of a criminal or administrative nature,(3) An IMO publication which is specifically intended to provide guidance on the implementation of MARPOL for its contracting states confirms that this matter is left to individual states and adds that “[s]anctions, be they administrative or penal in nature, would, by and large, consist of fines.” MARPOL – How to do it, IMO, 2013, para. 4.7. UNCLOS article 230 requires, as was noted above, that "monetary penalties only may be imposed" with respect to pollution violations by foreign ships (the only exception being pollution in internal waters and wilful and serious pollution in the territorial sea), but the more specific nature of the monetary penalties is not addressed. See also ILA Report, note 32, at p. 496.though EU law requires there to be (at least) criminal sanctions in place for certain types of violations of the air emission standards.(4) Directive 2008/99 requires criminal procedures to be in place for a range of 'unlawful' acts, which includes violation of the air emission requirements of the sulphur directive. Under article 3(a), member states shall ensure that "the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants" constitutes a criminal offence, "when unlawful and committed intentionally or with at least serious negligence". Annex 1 of the directive includes the sulphur in fuel requirements, which means that infringements of the sulphur in fuel requirements are "unlawful" under article 2(1). This distinction is decisive for the procedures and evidence required to bring a case of non-compliance to conclusion.
Traditionally, marine pollution offences have been subject to criminal penalties in Northern Europe, but states have increasingly begun to introduce tailor-made sanctions of administrative nature to overcome the procedural burdens linked to criminal penalties. This has not least been the case in the Nordic countries,(5) Two example are the Swedish water pollution fee, which was introduced in 1984 (Chapter 8 of Act 1980:424 on Measures Against Water Pollution from Ships) and the Finnish oil discharge fee from 2005 (Act 1163/2005 available in Finnish at www.finlex.fi/fi/laki/alkup/2005/20051163). Both sanctions were specifically introduced to improve the efficiency of sanctions for illegal oil spills, both in relation to the swift procedures for applying the penalties, the proof standards and the level of penalties. The two fees only apply to oil pollution and hence do not extend to air emission violations, though in both countries studies prepared for the governments have indicated benefits of applying a similar fee to those infringements. See the Swedish study referred to in note 5 above and H. Ringbom, 'Administrative Sanctions for Violations of Ships’ Air Emissions and Fuel Quality Standards – International Law Considerations', Study prepared for the Finnish Ministry of Transport and Communications, BALEX, Finland, November 2014.but to date only Norway applies administrative penalties for violations of the rules on air emissions from ships.(6) Sections 55 - 57 of the Act of 16 February 2007 No. 9 relating to ship safety and security introduce a 'violation fine' which may be imposed on natural as well as legal persons. On this basis five fines have been issued in 2015-2016, ranging from NOK 100.000 to 500.000 (corresponding to roughly € 11.000-55.000). See also the recent Belgian 'Loi instituant des amendes administratives applicables en cas d'infractions aux lois sur la navigation' of 25 December 2016. The law introduces a speedy process for issuing a fine, based on the corresponding substantive rules of the criminal sanctions. The enforcement will be carried out by the Federal shipping directorate if the public prosecutor does not act within one month, which is expected to speed up the procedure considerably. In monetary terms, too, the new administrative fine matches the applicable criminal sentences, which in the case of air emissions may extend up to € 8 million.
Even if criminal fines represent the typical form of sanctions for violation of the air emission standards in the Northern European SECA states, there is not much practical experience of awarding criminal penalties for violations of the air emission standards. As far as is known, only one criminal case on the fuel quality requirements that apply in the Northern European SECA has resulted in conviction to date.(7) This is the Costa NeoRomantica in Hamburg Local Court 2016 XX, in which two chief engineers were fined EUR 23,500 each. The absence of successful prosecutions of violations of the fuel quality standards was subject to a study by the Swedish Transport Agency (note 6). Out of 31 notifications by maritime administration to the prosecutor between 2010 and May 2014, only one led to a decision to initiate a criminal investigation and not a single one ended up in prosecution. The main reasons for this, were either that it was not possible to investigate the alleged offence properly (since the ship had already left the country) or it was not possible to confirm criminal conduct.
In the following, the regulatory framework for three aspects of the sanctions will be considered in some more detail. Section 6.2 discusses liable persons, section 6.3 addresses questions related to the threshold of negligence and section 6.4 discusses the level of the sanction. These questions have to be settled for any sanction regime, independently of the procedural framework involved and special solutions may be needed for sanctions relating to air emission violations in view of their specific character.