6.2 The liable person
As regards the person on whom the sanction or fee is to be imposed, MARPOL only requires that any violation shall be prohibited and subject to sanctions, without further clarification as to who the liable person should be.(1) Article 4(2) referred to in note 69 above. The only provision which mentions specific persons in MARPOL Annex VI is regulation 3(1) which contains certain exceptions, where air emissions in violation of the specified requirements are allowed. This exception, however, concerns emissions “resulting from damage to a ship or its equipment” and includes a number of additional conditions and is therefore unlikely to be of relevance in the present context.(2) The full text of MARPOL Annex VI, regulation 3(1)(2) reads as follows: “Regulations of this Annex shall not apply to … any emission resulting from damage to a ship or its equipment: .2.1 provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the emission for the purpose of preventing or minimizing the emission; and .2.2 except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result. ”
The Sulphur Directive requires, flag coastal and port states to take all necessary measures to ensure that non-compliant marine fuels "are not used"(3) Article 6(2). and places the corresponding obligations on "the ship", rather than individual persons.(4) See article 6(8). In the sanctions part the Directive requires that fines are calculated in such a way that they "at least deprive those responsible of the economic benefits derived from the infringement", which indicates that at least the person who are making economic benefits should be among the liable persons.
For criminal sanctions, Directive 2008/99 is somewhat more precise. It does not specify the identity of the liable person either, but clarifies that that both natural and legal persons ("committed for their benefit by any person who has a leading position within the legal person"), shall be potentially subject to the penalty (article 6(1)), that penalties shall extend to the lack of supervision or control (article 6(2)), and that "inciting, aiding and abetting criminal conduct shall also be punishable as a criminal offence" (article 4). Article 6(4) clarifies that liability of legal persons on this basis does not exclude criminal proceedings against natural persons.The reference to the deprival of economic benefits in the Sulphur Directive, together with article 6 of Directive 2008/99, clearly calls for including companies among the potentially liable parties for air emission violations. The economic benefit of cheating with the fuel quality requirements will normally lie with the owner or charterer, rather than with individuals on-board or ashore. The corporate sanctions need not be of a criminal nature, however.(5) See e.g. http://ec.europa.eu/environment/legal/crime/
The available examples of administrative sanctions for violations of the air emissions requirements indicate a somewhat broader approach to the liable person. The Norwegian Ship Safety and Security Act, 2007, includes separate sections for fines to be imposed on individuals and those imposed on the company (i.e. the managing company indicated in the Safety Management Certificate(6) While section 56 does not include a possibility to impose the corporate sanctions on other legal persons than the 'company', as defined in section 4 of the Act, the fourth paragraph provides that "the Ministry may issue regulations containing further provisions relating to violation fines against the company". ) with somewhat different thresholds of negligence.(7) On the differences, see section 6.3 below.As to individuals, the administrative fines may be imposed on: a) "anyone who, on behalf of the company" commits a violation; b) the master; and c) other persons working on board.(8) Section 55(1-3). If any of those persons acted on behalf of the company, the fine may also be imposed on the company as such, even where fines could not be imposed on any of those persons (e.g. in the absence of proof of negligence).(9) Section 56(2) Section 56(3) provides that the company is also jointly and severally liable for fines imposed on the master or other persons working on board.