7.3 Other forms of detentions
The detention of ships is not confined to PSC. It is perfectly possible for a port state to limit a ship’s right to leave the port, even outside matters that are regulated in PSC. This follows from general international law, i.e. the port state’s sovereignty over ships that are voluntary present in their ports, but is also specifically foreseen in UNCLOS. Article 226(1)(b), which deals with violations of applicable rules and standards more generally than those referred to in the previous section, implicitly recognises the possibility of detaining non-complying ships, but provides that the ship shall be promptly released “subject to reasonable procedures, such as bonding or other appropriate financial security”. This article, together with article 220(1), which provides for the institution of proceedings in relation to ships which have violated (national and international) rules and standards adopted for the prevention, reduction or control of ship-source pollution in the port state’s coastal waters, leaves the door open for detentions of a more punitive or compensatory nature, but provides certain additional safeguards to ensure that ships are not prevented from sailing once a reasonable amount of security has been posted by the flag State.(1) Molenaar, note 29, at p. 462, notes that nothing in Article 226 prevents the two forms of detention being applied concurrently.
In practice, various types of pre-departure conditions which are not PSC detentions have been implemented by the EU in a number of different circumstances, also with respect to requirement that are of regional origin and scope. Examples include prohibiting a ship from leaving the port until it has fulfilled its waste delivery obligations,(2) Directive 2000/59 on port reception facilities for ship-generated waste and cargo residues, OJ 2000 L332/81, articles 7(2) and 11(2)(d). or rested its crew.(3) Directive 1999/95 concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community ports OJ 2000 L 14/29, article 5. Such measures do not amount to a detention of the ship in the meaning of the PSC Directive, although the practical consequences may be largely similar. Yet those measures do not trigger the transparency sanctions that are associated with detentions in article 26 of the PSC Directive nor do they affect the inspection priorities or count as a detention for the purposes of banning ships from EU ports under article 16.
If this type of ’non-PSC detention’ were to be applied with respect to sulphur in fuel requirements, there is a need for a specified point in time by which the ship should be released. Since the main form of sanction will be a fine, this juncture should presumably be the payment of the fine.(4) See also Case C-501/14, EL-EM 2001, as referred to in note 107. While finding in para. 45 that immobilisation of a vehicle as a precautionary measure, "is, in principle, appropriate and effective to achieve the objectives ..., the immobilisation of a vehicle belonging to a transport undertaking which has not been found liable in administrative proceedings goes beyond what is necessary to achieve those objectives." The case suggests that this type of detention is easier to justify under EU law in cases where the fine has been imposed on the ship operator rather than on individual crew members. However, detaining a ship until a fine has been paid would involve significantly longer time period than the examples above and therefore give rise to strains with respect to the obligation of states not to cause undue delay to ships. Only establishing whether a violation has taken place will normally take several days, to be added by the time needed for the procedures to impose the penalty.