7.4 Conditioning departure on provision of financial security
To avoid such strains between the need for time for proper enforcement procedures and the obligation to avoid undue delays, UNCLOS provides a solution under which the ship is allowed to sail subject to presenting appropriate financial security. In the words of article 226(1)(b), ”if the investigation indicates a violation of applicable laws and regulations, …. release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security.” On this basis, the ship could be detained until the fine has been paid or an appropriate financial security for the fine has been issued.
The quoted wording suggests that the fine need not have been issued once the security is required. It suffices that the investigation indicates a violation. Still, a certain swiftness in the procedure to establish the fine is required for this enforcement method to work, which probably makes it more suitable for administrative fines than criminal ones.
The general considerations of reasonableness discussed in section 4.5 apply to this kind of detentions as well, as do the general safeguards of UNCLOS Part XII. Port states may also face liability for measures which are unlawful or "exceed those reasonably required in the light of available information" under UNCLOS article 232 and MARPOL article 7(2).
In addition to the other safeguards of UNCLOS Part XII, detentions on this basis are subject to the prompt release procedure under UNCLOS article 292. In view of this there is already some practice with regard to how the reasonableness of the security has been assessed by the International Tribunal for the Law of the Sea, which is interesting to study even if it is not comprehensive and has not dealt with penalties for violation of MARPOL discharge or emission standards as of yet.
In its practice comprising four cases, the Tribunal has elaborated four considerations for assessing the reasonableness of the bond or security required by the port state: 1) the gravity of the offence; 2) the penalties imposed or imposable under the laws of the detaining state; 3) the value of the detained vessel and cargo; and 4) the amount and form of the bond imposed by the detaining state. (1) See in particular Camouco (ITLOS Case No. 5, 2000), paragraph 67. The Tribunal has subsequently emphasized that this is not an exhaustive list and that (see Monte Confurco, ITLOS Case No 6 (2000), para 76 and Volga, ITLOS Case No. 11 (2002), para 64. The case law on these considerations has mostly concerned fishing vessels and is far from conclusive, but with regard to the second consideration it appears that calculating the amount of the bond on the basis of the maximum imposable penalty is acceptable.(2) See e.g. the Camouco case referred to in the previous note. Whether the bond may cover purely punitive or deterrent elements of penalties has only been addressed in a couple of dissenting opinions to date.(3) The dissenting opinion of Judge Anderson in the Monte Confurco Case, quoted above in note 92, supports the inclusion of deterrent elements. Conversely, Judge Ndiaye considered in a declaration in the same case that the bond should not take on a punitive or deterrent character. The (unconvincing) reason given was that ”[o] therwise, the challenging of the amount of the bond would turn the Tribunal into a forum for appealing against the decisions of national authorities, which it is not.”
Neither MARPOL nor EU law specifically provide for enforcement based on detention, subject to provision of financial security, but neither rule them out. Such mechanisms do exist at national level, for both criminal and administrative penalties, and some of them are applicable to infringements of the air emissions standards. A pertinent example(4) See also the Finnish 2009 Act, where detention for the purpose of obtaining financial security is specifically authorised for implementing the oil pollution fee (chapter 3 subsection 6(2)), even with respect to suspected ships in that are merely transiting through the Finnish territorial sea and EEZ. In subsection 3 it is provided that the maximum duration of the detention is 14 days. Article 17 of the Belgian law referred to in note 72 also includes right for the authorities to detain a ship until a financial security that covers the entire fine has been issued. In this case there is no specific time limit.is Norway’s Ship Safety and Security Act, which allows authorities to "prohibit the ship departure from a port, order it to call at a port or stipulate other necessary measures until the ... fine is paid or sufficient security for the amount has been provided".(5) Ship Safety and Security Act, sections 57(2) and 70(1). The Belgian law referred to in note 72 above similarly allows the authorities to detain a ship in case of serious suspicion ("présomptions sérieuses") of an infraction (article 17). The measure covers both administrative and criminal fines by means of identical provisions, with the difference that the request in relation to criminal fines is to be made by the court, while in administrative procedures the prohibition will be ordered by the 'supervisory authority'.
The Norwegian example is also interesting as it permits the security to be required with respect to fines that have already been issued, but also extends to cases of where they "are expected to be imposed".(6)Ibid. The more precise level of expectation required is not specified in the preparatory documents, but it has been considered that a greater likelihood than not may suffice.(7) Pettersen & Bull, note 90, p. 874. It is finally notable that the Norwegian detention measures may be applied even if the fine and related security only were imposed on the master or other persons working on board. In practice, the Norwegian guarantees are routinely required for foreign companies and the system has reportedly worked well in the sense that the fines have so far been paid by companies without a need use the guarantee.(8) Personal communication with K.B. Sørensen, Senior Adviser at the Norwgian Shipping Directorate, April 2017.