6.3 The level of negligence
Another relevant question relating to the penalty to be imposed for non-compliance with the MARPOL standards is the level of culpability required for the penalty to be activated. Must, in other words, the infringement be intentional or the result of some degree of negligence, or can sanctions be imposed on objective terms, on the basis that a violation has been confirmed?
Generally speaking, MARPOL regulates discharges and emissions in objective terms. Unless specifically permitted or exempted, any discharge of the substances concerned, or air emission exceeding the required standards is prohibited(1) MARPOL regulations I/15 and 34, II/13 and VI/14. and shall, as such, be subject to sanctions under article 4. The formulations chosen in the convention, together with the level of detail of regulation 14, suggest a regime of ‘strict’ liability, in which mere evidence of a violation suffices to trigger the sanction, without there being any need to analyse the subjective degree of fault or culpability on behalf of the person responsible. However, in practice MARPOL has been considered to leave room for different national solutions in this respect.(2)MARPOL – How to do it (2002), pp. 24—25.
On this matter, too, differences apply between the procedures involved. While variations exist, the general position is that criminal law procedures require proof or intent or at least (gross - criminal) negligence of the responsible person while administrative penalties are more flexible and may even be based on a strict liability or a reversed burden of proof.
Under the criminal procedure it will usually be necessary to show that the alleged offender deliberately or negligently caused the pollution, or at least knew that the pollution was taking place and did nothing to prevent it. In other words, it is necessary to demonstrate the alleged offender’s intentions and/or knowledge of the circumstances, which significantly extends the evidence that is needed to prove the offence.
The two EU directives of relevance for criminal penalties for ship-source pollution establish intent or (at least) ‘serious negligence’ as the relevant thresholds.(3) Directive 2005/35 article 4(1) and Directive 2008/99, article 3 'Serious negligence' has been discussed by the European Court of Justice and confirmed as "entailing an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation."(4) Case C-308/06, Interanko and others, para. 77. Se also the opinion by Advocate-General Kokott in the same case, where the concept is analysed in relation to the wording of MARPOL, at paras. 102-112 and 139-156. The chosen threshold places a significant burden of proof on the authorities in view of the easy access to evidence to support the ship operator’s innocence, such as the availability of a bunker delivery note (BDN) indicating that the purchased fuel was compliant. Crew members are similarly unlikely to confirm (seriously) negligent conduct in their statements and even if they did at the time of investigation, they may have retracted such statements at the time a trial begins.
A Swedish study from 2014 indicated that the main reasons for failing to impose criminal penalties for air emission violations is that the prosecutor has decided to discontinue the caser in view of the difficulties to properly investigate the alleged infringement and to prove the required negligence. Even in cases where the violation has been proved in objective terms, prosecutors had repeatedly decided not to proceed to prosecution in cases where the BDN indicates that the fuel is compliant. Divergences between the actual sulphur levels and those indicated in the BDN may be due to several reasons, including failure to empty tank before fuelling, subsequent switching between fuel tanks etc. In view of this uncertainty facing the prosecutor, proving a breach of the required duty of care would require further investigation with the crew, but at that time the ship has long since left the jurisdiction.(5) Swedish study referred to in note 5 above, pp. 49-51.
Administrative penalties involve more flexibility in this respect. They permit linking the violation more closely to the existence of the violation rather than the potential reasons for it and hence allow simplified procedures and investigation routines. The existing examples indicate a tendency to do away with the subjective element of culpability.
The Norwegian 'violation fine' makes a difference between sanctions imposed on individuals and those imposed on companies. While the former still require intent or (simple) negligence, fines imposed on companies may be imposed without any such intent or negligence, provided only that the person who committed the violation "has acted on behalf of the company".(6) Section 56(1) The selected wording suggests that it is not necessary to know exactly who committed the violation or even if anyone did, as long as there is cumulative behaviour leading up to a violation.(7)T.H. Pettersen & H.J. Bull, Skipssikkerhetsloven - med kommentarer, Fagbokforlaget, Bergen 2010, p. 746. Instead the question of whether a fine shall be imposed, and its magnitude, shall be based on other specified criteria.(8) Section 56(2) reads in full: "In deciding whether a violation fine shall be imposed on the company, and in assessing the fine, particular consideration shall be paid to: a) the seriousness of the violation; b) whether the company could have prevented the violation through the Safety Management System or by instruction, training, control or other measures;c) whether the offence was committed to promote the interests of the company; d) whether the company has had or could have obtained any advantage by the offence; e) whether this is a repeated offence; and f) the company’s financial capacity"