7.2 PSC detention
The principal remedy applied to non-complying ships under PSC is detention. A detention targets the ship as such, without a need for singling out individual persons behind the violation, and affects those who are operating the ship at the time of the infraction. It is a relatively simple administrative measure which is highly coordinated at EU-level(1) In Europe PSC is harmonised and coordinated through a specific EU Directive on the matter (Directive 2009/16 on port state control, OJ 2009 L 131/57), which is closely synchronized with the Paris MOU on port state control, which covers a broader range of parties, including the Baltic Sea ports of the Russian Federation (see www.parismou.org).and could hence be attractive for enforcing infringements of the MARPOL Annex VI requirements. This is not least so as failure to comply with the sulphur in fuel requirements of MARPOL Annex VI is specifically clarified as being a detainable deficiency in the Northern European SECA.(2) See at note 123 above. Detention is a very effective measure thanks to the important consequences it entails for the ship’s operator. Apart from the time loss involved, which in itself is very costly, detentions may involve a wide range of other financial repercussions, for example in terms of trade interruptions, claims for damages by contractual partners, implications for insurance (hull & machinery and P&I Club) cover, class conditions and negative PR from the publicity that a detention entails.(3) See also the OECD Doc. OCDE/GD(96)4 (Competitive Advantages Obtained By Some Shipowners as a Result Of Non-Observance of Applicable International Rules and Standards), at pp. 20—21.
However, even if a detention under PSC is an effective method for bringing ships into compliance, and hence to prevent damage from occurring in the future, it is of limited use as a sanction for past infractions. The design of the measure is based on the premise that the deficiencies can be rectified during the detention and is thus better suited for infringements of a static nature that can be repaired, such as malfunctioning equipment. This starting point is also reflected in UNCLOS, where the right to prevent a ship from sailing is linked to the ship’s seaworthiness and environmental risks.(4) Articles 219 and 226(1)(c), which are the only ones that explicitly deal with (administrative) measures to prevent the ship from sailing, refer to violations of rules “relating to seaworthiness of vessels” and, more particularly, to cases where the release of the ship would present an (unreasonable) threat of damage to the marine environment. See also MARPOL article 5(2) and Molenaar note 29, pp. 189—190 .
Some of UNCLOS' safeguards apply specifically to inspections and detentions:
Ships shall not be delayed more than is essential for the purpose of investigation under articles 218 and 220 (article 226(1)(a)).
Inspections of ships should be limited to an examination of documents. More detailed physical inspection should only be undertaken if an assessment of the documents is not sufficient or if there are ‘clear grounds’ for believing that the ship’s condition or equipment does not correspond with what is stated in the documents (article 226(1)(a)).
Even if the investigations indicate violation, the ship shall be released promptly “subject to reasonable procedures such as bonding or other financial security” (article 226(1)(b)).
Release may be refused if the ship “would present an unreasonable threat of damage to the marine environment”. If a ship is detained, the flag state shall be notified and the prompt release procedure under article 292 applies (article 226(1)(c)).(5) This article applies “without prejudice to applicable international rules and standards relating to the seaworthiness of vessels”, which indicates that further developments in IMO Conventions and port state control may affect the scope of this safeguard.
To reinforce these safeguards, it is also provided that states shall be liable for damage or loss attributable to them arising from enforcement measures which are unlawful or exceed those reasonably required in the light of available information (article 232).
MARPOL Annex VI does not explicitly state that a ship can be detained on grounds of failing to comply with the air emissions standards. Instead, regulation 11 which deals with inspections and enforcement, highlights flag states' enforcement responsibilities. However, neither this nor any other provision of MARPOL is intended to affect the jurisdictional powers of states as laid down in UNCLOS and general international law. (6) See notes 18 and 19 above. Other provisions of the Annex include specific references to enforcement through PSC.(7) E.g. MARPOL Annex VI, regulations 10 and 18(7) and (10). A port state's right to detain a ship follows from general international law, as outlined above, and it is established in practice that violation of MARPOL's fuel quality standards may be a ground for detention.(8) See e.g. the 2009 IMO Guidelines for Port State Control under the Revised MARPOL Annex VI (IMO Resolution MEPC.181(59)), which lists ”non-compliance with the relevant requirements while operating within an Emission Control Area for SOx” among the detainable deficiencies (para. 2.3.2.5). The guidelines issued by the Paris MOU on this matter are particularly clear on this point:
The burning of non-compliant fuel in an ECA constitutes an unreasonable threat of harm to the environment and is of such a serious nature it may result in detention. (9) Paris MOU Guidelines on Application of MARPOL Annex VI regulation 18 in an Emission Control Area (ECA), available at https://www.parismou.org/sites/default/files/Guidelines%20on%20fuel%20availability.pdf. Similarly, the EU guidance on inspection referred to in note 22 above.
However, it is uncertain how long the ship may be detained on this ground. Presumably, once the vessel has refuelled and can demonstrate it has sufficient compliant fuel to exit the SECA area, it no longer presents an "unreasonable threat" under UNCLOS article 226 and the Paris MOU guidelines, and should accordingly be released.(10) UNCLOS article 226(1), MARPOL article 7. The detention of ships, as provided for in UNCLOS and subsequently elaborated in PSC practice, is hence an essentially preventive tool, which is not designed for penalizing violations of an operational nature.(11) MARPOL Annex VI regulation 10 includes specific provisions on port state control on violation of operational requirements, requiring the port state to "take such steps as will ensure that the ship shall not sail until the situation has been brought to order in accordance with the requirements of this Annex."