Monday, December 3, 2007



PROTECTION OF MARINE ENVIRONMENT AND CONVENTIONS ON POLLUTION

(By MANJERI SUBIN SUNDER RAJ, National University of Advanced Legal Studies, Cochin.)

INTRODUCTION

It seems that almost every day there is another story about pollution of one form or another, in the food we eat, the water we drink and the air we breathe. Very often our own actions lead to that pollution and in many cases we can do something about it.

The oceans are a vast resource whose usefulness to the global society is continuing to be realized. Thus, it is in the best interest of humanity that they are exploited in a manner that is protective and sustainable, in order to preserve their health and guarantee their continuing viability. They however are one of the most polluted. Over 80% of all marine pollution comes from land-based activities and many pollutants are deposited in estuaries and coastal waters.
Currently, the biggest threats to the health of the marine environment are:
Ø Habitat destruction and alteration
Ø Over fishing
Ø Pollution from sewage and chemicals
Ø Increasing eutrophication[1]
Ø Changes to hydrology and sediment flow
Ø Global climate change
Ø Ship pollution
In this work, I would be dealing with the pollution to the marine environment basically from ships and other vessels. They really provide an insight to man’s carelessness and how far negligent we are at protecting our resources.
SHIP POLLUTION

Ship pollution is the pollution of water by shipping. It is a problem that has been accelerating as trade has become increasingly globalized. The pollution produced affects biodiversity, climate, food, and human health. There are numerous causes for this, out of which I would discuss some important ones.

CAUSES :

1.OIL SPILLS
Most commonly associated with ship pollution are oil spills. Tankers illegally cleaning their tanks while out at sea and dumping the dirty water overboard cause significant oil pollution. 72 per cent of oil pollution caused by shipping is estimated to be deliberate and illegal. Only 28 per cent is caused by tanker accidents. Many of the major oil spillages during the last 40 years have been caused, or made worse by human error. Human error can mean carelessness, but it also includes continuing to use old, unsafe ships and employing crews with inadequate training.
While being toxic to marine life, polycyclic aromatic hydrocarbons (PAHs), the components in crude oil, are very difficult to clean up, and last for years in the sediment and marine environment.[2] Marine species constantly exposed to PAHs can exhibit developmental problems, susceptibility to disease, and abnormal reproductive cycles.
There have been a number of serious oil spillages caused by oil tanker accidents in the last 4 decades. The Torrey Canyon was the first of the big supertankers, capable of carrying a cargo of 120,000 tons of crude oil. On March 18, 1967, owing to a navigational error, the Torrey Canyon struck Pollard's Rock in the Seven Stones reef and caused major environmental damage on the Cornish and French coasts. This was the first major oil spill and no plans had been prepared beforehand to deal with it. The ship broke apart after being stranded on the reef for several days. Around 120 miles of Cornish coast and 80 kilometres of France was contaminated and around 15,000 sea birds killed along with huge numbers of marine organisms before the 270 square mile slick dispersed. Further damage was caused by the heavy use of detergents to break up the slick.

The disaster led to many changes in international regulations, for example the Civil Liability Convention (CLC) of 1969, which imposed strict liability on ship owners without the need to prove negligence, and the 1973 International Convention for the Prevention of Pollution from Ships.
In 1978, The Amoco Cadiz was wrecked following engine failure on the coast of Brittany, releasing 223,000 tonnes of oil into the sea. Thousands of migrating seabirds were killed when they landed on the oily waters, and many French oyster fisheries and beaches were completely ruined.
The Exxon Valdez was accidentally steered into a reef in Prince William Sound, Alaska in 1989. Emergency equipment did not arrive quickly, and this allowed the 37 million litres of spilled oil to form a slick covering 6,700 square kilometers. The delay in providing equipment, both by the oil company, Exxon, and by the State of Alaska, was unforgivable, and caused the needless death of thousands of animals, including 350,000 sea otters.
The tanker Braer broke up off Shetland having run aground, and in February 1996, the Sea Empress spilled around 70,000 tonnes of crude oil off the Pembroke shire coast in Wales. The Prestige, which sunk off the Spanish coast in 2002, is also one of the most destructive oil spills ever.

Oil-covered seas look calm, but if a bird land in a slick, the oil coats its feathers, affects its buoyancy and the insulating power of its feathers and makes it unable to fly away. An animal killed by oil may then be eaten by fish or birds, which in turn are poisoned by the oil. These oil spills have a catastrophic effect on the marine environment as a whole.
Major Oil Spills Since 1967
Position
Ship name
Year
Location
Spill Size(tonnes)
1
Atlantic Empress
1979
Off Tobago, West Indies
287,000
2
ABT Summer
1991
700 nautical miles off Angola
260,000
3
Castillo de Bellver
1983
Off Saldanha Bay, South Africa
252,000
4
Amoco Cadiz
1978
Off Brittany, France
223,000
5
Haven
1991
Genoa, Italy
144,000
6
Odyssey
1988
700 nautical miles off Nova Scotia, Canada
132,000
7
Torrey Canyon
1967
Scilly Isles, UK
119,000
8
Sea Star
1972
Gulf of Oman
115,000
9
Irenes Serenade
1980
Navarino Bay, Greece
100,000
10
Urquiola
1976
La Coruna, Spain
100,000
11
Hawaiian Patriot
1977
300 nautical miles off Honolulu
95,000
12
Independenta
1979
Bosphorus, Turkey
95,000
13
Jakob Maersk
1975
Oporto, Portugal
88,000
14
Braer
1993
Shetland Islands, UK
85,000
15
Khark 5
1989
120 nautical miles off Atlantic coast of Morocco
80,000
16
Aegean Sea
1992
La Coruna, Spain
74,000
17
Sea Empress
1996
Milford Haven, UK
72,000
18
Katina P
1992
Off Maputo, Mozambique
72,000
19
Nova
1985
Off Kharg Island, Gulf of Iran
70,000
20
Prestige
2002
Off the Spanish coast
63,000
35
Exxon Valdez
1989
Prince William Sound, Alaska, USA
37,000

2. BALLAST WATER

When larger vessels such as a container ship or oil tanker unload cargo, seawater is pumped into compartments in the hull. Similarly, when a larger vessel is being loaded it discharges seawater from these compartments. The seawater is meant to help stabilize and balance a ship. Ballast discharges from ships are responsible for tar balls in the open oceans and seas, and can cause problems navigating tanker routes. Nevertheless, the discharge of ballast water only accounts for a small percentage of oil pollution in the marine environment.[3]

Ships are also responsible for transporting harmful organisms in their ballast water. Meinesz believes that one of the worst cases of a single invasive species causing harm to an ecosystem can be attributed to a seemingly harmless jellyfish. Mnemiopsis leidyi, a species of comb jellyfish that inhabits estuaries from the United States to the Valdés peninsula in Argentina along the Atlantic coast, has caused notable damage in the Black Sea. It was first introduced in 1982, and thought to have been transported to the Black Sea in a ship’s ballast water.[4] In addition to introducing non-native species into new environments, ballast and bilge discharge from ships can spread human pathogens and other harmful diseases and toxins potentially causing health issues for humans and marine life alike.[5] Current research indicates that the bacterium responsible for causing cholera, Vibrio cholerae can spread through attachment to marine organisms in ship ballast water.[6] Discharges into coastal waters along with other sources of marine pollution have the potential to be toxic to marine plants, animals, and microorganisms causing alterations such as changes in growth, disruption of hormone cycles, birth defects, suppression of the immune system, and disorders resulting in cancer, tumors, and genetic abnormalities or even death.

3.CRUISE SHIPS

With some cruise ships holding upwards of 5000 people, passengers and crew combined, these ships are likened to floating cities. “In one week, a typical cruise ship generates 210,000 gallons of black water (sewage), 1,000,000 gallons of gray water (shower, sink, dishwashing water), 37,000 gallons of oily bilge water, more than eight tons of solid waste, millions of gallons of ballast water containing potential invasive species, and toxic wastes from dry cleaning and photo processing laboratories”.[7]

From 1993 to 1998, cruise ships were involved in 104 confirmed cases of illegal discharge of oil, garbage, and hazardous wastes.[8] One of the worst reported cases was by Royal Caribbean Cruises Ltd. Over several years, while in U.S. waters, they had been routinely and deliberately dumping waste oil, photo processing, dry cleaning, and print shop chemicals into coastal waters. Their ships were even fitted with concealed piping that would bypass pollution treatment equipment.

Along with these kinds of pollution, the exhaust emissions from the ship also lead to pollution of the air. They are one of the major causes for acid rains and it has a devastating effect on nature.

There have been many Conventions, which have been enacted for protecting the marine environment. But certain criticisms have been raised against this. It is said that “In general, the treaties tend to emphasize the technical features of safety and pollution control measures without going to the root causes of sub-standard shipping, the absence of incentives for compliance and the lack of enforceability of measures.”[9] Cruise ships for example are exempt from regulation under the Clean Water Act of 1972. I would deal with the Conventions that were made regarding pollution from ships.

CONVENTIONS REGARDING POLLUTION FROM SHIPS

1. INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION OF THE SEA BY OIL (OILPOL CONVENTION), 1954

Oil pollution of the seas was recognized as a problem in the first half of the 20th century and various countries introduced national regulations to control discharges of oil within their territorial waters. In 1954, the United Kingdom organized a conference on oil pollution that resulted in the adoption of the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL), 1954. Following entry into force of the IMO Convention in 1958, the depository and Secretariat functions in relation to the Convention were transferred from the United Kingdom Government to IMO.

The Convention primarily addressed pollution resulting from routine tanker operations and from the discharge of oily wastes from machinery spaces.It attempted to tackle the problem of pollution of the seas by oil - defined as crude oil, fuel oil, and heavy diesel oil and lubricating oil in two main ways:
Ø It established "prohibited zones" extending at least 50 miles from the nearest land in which the discharge of oil or of mixtures containing more than 100 parts of oil per million was forbidden; and
Ø It required Contracting Parties to take all appropriate steps to promote the provision of facilities for the reception of oily water and residues.

The Convention was amended in 1962 and it extended its application to ships of a lower tonnage and also extended the "prohibited zones". Later in 1967 when the Torrey Canyon incident took place many questions regarding about measures then in place to prevent oil pollution from ships and also exposed deficiencies in the existing system for providing compensation following accidents at sea. , IMO called an Extraordinary Session of its Council, and decided in 1969 to convene an international conference in 1973 to prepare a suitable international agreement for placing restraints on the contamination of the sea, land and air by ships. Amendments adopted in 1969 contained regulations to further restrict operational discharge of oil from oil tankers and from machinery spaces of all ships. In 1971, IMO adopted further amendments to OILPOL 1954 to afford additional protection to the Great Barrier Reef of Australia and also to limit the size of tanks on oil tankers, thereby minimizing the amount of oil, which could escape in the event of a collision, or stranding.


2. INTERNATIONAL CONVENTION RELATING TO INTERVENTION ON THE HIGH SEAS IN CASES OF OIL POLLUTION CASUALTIES (INTERVENTION), 1969

Adoption: 29 November 1969Entry into force: 6 May 1975
Current Status (As of April31, 2007): 83 countries representing 73.98% of the world's tonnage.

This was one of the direct results of the Torrey Canyon incident. Questions were raised as to the extent to which a coastal State could take measures to protect its territory from pollution where a casualty threatened that State with oil pollution, especially if the measures necessary were likely to affect the interests of foreign ship owners, cargo owners and even flag States. A conference to consider these aspects was held in Brussels in 1969.

The Convention affirms the right of a coastal State to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or the threat thereof, following upon a maritime casualty.

The coastal State is, however, empowered to take only such action as is necessary, and after due consultations with appropriate interests including, in particular, the flag State or States of the ship or ships involved, the owners of the ships or cargoes in question and, where circumstances permit, independent experts appointed for this purpose.

A coastal State, which takes measures beyond those permitted under the Convention, is liable to pay compensation for any damage caused by such measures. The Convention applies to all seagoing vessels except warships or other vessels owned or operated by a State and used on Government noncommercial service.
The 1973 Protocol, which entered into force 30 March 1983, extended the Convention to cover substances other than oil. Amendments were made in 1991,1996 and 2002. The 1991 amendments, adopted on 4 July 1991 came into force on 30 March 1993. It revised the list of substances drawn up in 1974 to assist the application of the 1973 Protocol.The 1996 amendments adopted on 10 July 1996 came into force on 19 December 1997 and it revised the list of substances attached to the 1973 Protocol, following the adoption of new criteria for their selection. The 2002 amendments adopted on 11 October 2002 came into force on 22 June 2004 and it revised the list of substances attached to the 1973 Protocol.

3.CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER, 1972

Adoption: 13 November 1972Entry into force: 30 August 1975
Current Status (As of April31, 2007): 81 countries representing 68% of the world's tonnage.

The Inter-Governmental Conference on the Convention on the Dumping of Wastes at Sea, which met in London in November 1972 at the invitation of the United Kingdom, adopted this instrument, generally known as the London Convention. . It prohibits the dumping of certain hazardous materials, requires a prior special permit for the dumping of a number of other identified materials and a prior general permit for other wastes or matter."Dumping" has been defined as the deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures, as well as the deliberate disposal of these vessels or platforms themselves. Wastes derived from the exploration and exploitation of seabed mineral resources are, however, excluded from the definition.

The 1978 amendments adopted on 12 October 1978 came into force on 11 March 1979 and it affected Annex I of the Convention and are concerned with the incineration of wastes and other matter at sea. The 1980 amendments adopted on 24 September 1980came into force 11 March 1981.These amendments are related to those concerned with incineration and list substances, which require special care when being incinerated. The 1989 amendments adopted on 3 November 1989 came into force on 19 May 1990 and qualified the procedures to be followed when issuing permits under Annex III. The 1993 amendments adopted on 12 November 1993 came into force on 20 February 1994 and banned the dumping into sea of low-level radioactive wastes.

The 1996 Protocol adopted on 7 November 1996 came into force on 24 March 2006 and was aimed to replace the 1972 Convention. It represents a major change of approach to the question of how to regulate the use of the sea as a depository for waste materials. One of the most important innovations is to introduce (in Article 3) what is known as the "precautionary approach". This requires that "appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects. The 1996 Protocol is much more restrictive.

The 2006 Amendments to the 1996 Protocol adopted on 2 November 2006 came into force on 10 February 2007. It says that Storage of carbon dioxide (CO2) under the seabed will be allowed under amendments to an international convention governing the dumping of wastes at sea.

4. THE 1973 CONVENTION

An International Conference on 2 November 1973 adopted the International Convention for the Prevention of Pollution from Ships. As a result the 1973 Convention incorporated much of OILPOL, 1954 and its amendments into Annex I, covering oil. The other Annexes included chemicals, harmful substances in packaged form, sewage and garbage. The 1973 Convention also included two Protocols dealing with Reports on Incidents involving Harmful Substances and Arbitration. The 1973 Convention required ratification by 15 States, with a combined merchant fleet of not less than 50 percent of world shipping by gross tonnage, to enter into force. By 1976, it had only received three ratifications - Jordan, Kenya and Tunisia - representing less than one percent of the world's merchant shipping fleet. This was despite the fact that States could become Party to the Convention by only ratifying Annexes I (oil) and II (chemicals). Annexes III to V, covering harmful goods in packaged form, sewage and garbage were optional.
5. THE 1978 CONFERENCE

In 1978, in response to a spate of tanker accidents in 1976-1977, IMO held a Conference on Tanker Safety and Pollution Prevention in February 1978. The conference adopted measures affecting tanker design and operation, which were incorporated into both the Protocol of 1978 relating to the 1974 Convention on the Safety of Life at Sea (1978 SOLAS Protocol) and the Protocol of 1978 relating to the 1973 International Convention for the Prevention of Pollution from Ships (1978 MARPOL Protocol) - adopted on 17 February 1978. It allowed States to become Party to the Convention by first implementing Annex I (oil). Annex II (chemicals) would not become binding until three years after the Protocol entered into force. This gave States time to overcome technical problems in Annex II, which for some had been a major obstacle in ratifying the Convention.

As the 1973 Convention had not yet entered into force, the 1978 MARPOL Protocol absorbed the parent Convention. The combined instrument - the International Convention for the Prevention of Marine Pollution from Ships, 1973 as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) - finally entered into force on 2 October 1983 (for Annexes I and II).

MARPOL 73/78

Its stated object is: “to preserve the marine environment through the complete elimination of pollution by oil and other harmful substances and the minimization of accidental discharge of such substances”. As of now the Convention has 144members representing 98% of the world's tonnage. One of the altest accessions is that by Bahrain on 27 April 2007. Date of entry into force for Bahrain: 27 July 2007

The Convention includes regulations aimed at preventing and minimizing pollution from ships - both accidental pollution and that from routine operations - and currently includes six technical Annexes

Annex I: Prevention of pollution by oil

The 1973 Convention maintained the oil discharge criteria prescribed in the 1969 amendments to the 1954 Oil Pollution Convention, without substantial changes. A new and important feature of the 1973 Convention was the concept of "special areas" which are considered to be so vulnerable to pollution by oil that oil discharges within them have been completely prohibited, with minor and well‑defined exceptions. The 1973 Convention identified the Mediterranean Sea, the Black Sea, and the Baltic Sea, the Red Sea and the Gulfs area as special areas. The Protocol of 1978 made a number of changes to Annex I of the parent convention.

Annex I entered into force on 2 October 1983.

Annex II: Control of pollution by noxious liquid substances

It details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk. Some 250 substances were evaluated and included in the list appended to the Convention.

Annex II entered into force 6 April 1987. As of now, 144 countries representing 98% of the world's tonnage had become party to Annexes I and II.

Annex III: Prevention of pollution by harmful substances in packaged form

It contains general requirements for the issuing of detailed standards on packing, marking, labelling, documentation, stowage, quantity limitations, exceptions and notifications for preventing pollution by harmful substances. The International Maritime Dangerous Goods (IMDG) Code has, since 1991, included marine pollutants.

Annex III entered into force on 1 July 1992 and as of now, 127 countries representing over 94% of the world's tonnage had become party to it.
Annex IV: Prevention of pollution by sewage from ships

Annex IV contains requirements to control pollution of the sea by sewage.

Annex IV entered into force on 27 September 2003 and as of now, 117 countries representing over 75% of the world's tonnage had become party to it.

Annex V: Prevention of pollution by garbage from ships

This deals with different types of garbage and specifies the distances from land and the manner in which they may be disposed of. The requirements are much stricter in a number of "special areas" but perhaps the most important feature of the Annex is the complete ban imposed on the dumping into the sea of all forms of plastic.

Annex V entered into force on 31 December 1988 and as of now, 133 countries representing over 96% of the world's tonnage had become party to it.

Annex VI: Prevention of Air Pollution from Ships

The regulations in this annex sets limit on sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibit deliberate emissions of ozone depleting substances.

Annex VI was adopted in September 1997 and entered into force on 19 May 2005 and as of now, 41 countries representing over 72% of the world's tonnage had become party to it.

ENFORCEMENT

Any violation of the MARPOL 73/78 Convention within the jurisdiction of any Party to the Convention is punishable either under the law of that Party or under the law of the flag State. With the exception of very small vessels, ships engaged on international voyages must carry on board valid international certificates, which may be accepted at foreign ports as prima facie evidence that the ship complies with the requirements of the Convention.
If, however, there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate, or if the ship does not carry a valid certificate, the authority carrying out the inspection may detain the ship until it is satisfied that the ship can proceed to sea without presenting unreasonable threat, or harm to the marine environment. This puts down stringent rules to be followed.
AMENDMENTS
There are a number of Amendments. The list is as follows.
The 1984 amendments, The 1985 (Annex II) amendments- (The amendments also made the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) mandatory for ships built on or after 1 July 1986), The 1985 (Protocol I) amendments – incident reporting, The 1987 amendments - special area extension, The 1989 (March) amendments – Annex II, The October 1989 amendments – North Sea special area, The 1990 (HSSC) amendments, The 1990 (IBC Code) amendments, The 1990 (BCH) amendments, The 1990 (Annexes I and V) amendments (The amendments extended Special Area Status under Annexes I and V to the Antarctic) – Antarctic as special area, The 1991 amendments – Wider Caribbean as special area, The 1992 amendments – Double hulls made mandatory, The 1994 amendments – Implementation, The 1995 amendments – Garbage records, The 1996 amendments, The 1997 amendments – North West European waters as special area, The Protocol of 1997 adoption of Annex VI - Regulations for the Prevention of Air, Pollution from Ships, The 1999 amendments – Persistent oil, The 2000 amendments – Deletion of tainting, The 2001 amendments - revised 13 G (double hulls), The 2003 amendments - Double hulls, The 2004 (April) amendments - revised Annex IV (sewage), The 2004 (October) amendments - revised Annexes I and II, The 2005 amendments - North Sea, SECA, Annex VI amendments, The 2006 amendments - oil fuel tank protection, The 2006 (October) amendments - South Africa special area, revised Annex III.

6. INTERNATIONAL CONVENTION ON OIL POLLUTION PREPAREDNESS, RESPONSE AND CO-OPERATION (OPRC), 1990

Adoption: 30 November 1990Entry into force: 13 May 1995
Current Status (As of April31, 2007): 88 countries representing 65% of the world's tonnage.

In July 1989, a conference of leading industrial nations in Paris called upon IMO to develop further measures to prevent pollution from ships. The IMO Assembly endorsed this call in November of the same year and work began on a draft convention aimed at providing a global framework for international co-operation in combating major incidents or threats of marine pollution.

Parties to the OPRC convention are required to establish measures for dealing with pollution incidents, either nationally or in co-operation with other countries. Ships are required to carry a shipboard oil pollution emergency plan, the to be developed by IMO. Operators of offshore units under the jurisdiction of Parties are also required to have oil pollution emergency plans or similar arrangements which must be co-ordinated with national systems for responding promptly and effectively to oil pollution incidents. Parties to the convention are required to provide assistance to others in the event of a pollution emergency and provision is made for the reimbursement of any assistance provided. Ships are required to report incidents of pollution to coastal authorities and the convention details the actions that are then to be taken.


7.PROTOCOL ON PREPAREDNESS, RESPONSE AND CO-OPERATION TO POLLUTION INCIDENTS BY HAZARDOUS AND NOXIOUS SUBSTANCES, 2000 (OPRC-HNS PROTOCOL)
Adoption: 15 March 2000
Entry into force: Twelve months after ratification by not less than fifteen States, which are State Parties to the OPRC Convention.
Current Status (As of April31, 2007): the fifteenth ratification was filed with IMO on 14 June 2006. The Protocol will therefore enter into force on 14 June 2007. It has 18 ratifications representing 18.5% of the world's tonnage. Latest Accession by France on 24 April 2007. Date of entry into force for France: 14 June 2007.
This follows the principles of the OPRC and was formally adopted by States already Party to the OPRC Convention at a Diplomatic Conference held at IMO headquarters in London in March 2000. For the purposes of the HNS Protocol, a Hazardous and Noxious Substance is defined as any substance other than oil which, if introduced into the marine environment is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

The HNS Protocol will ensure that ships carrying hazardous and noxious liquid substances are covered by preparedness and response regimes similar to those already in existence for oil incidents. In 1996, IMO adopted the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (HNS) by sea, which provides for a compensation and liability regime for incidents involving these substances (it has not yet entered into force).

8. INTERNATIONAL CONVENTION ON THE CONTROL OF HARMFUL ANTI-FOULING SYSTEMS ON SHIPS
Adoption: 5 October 2001
Entry into force: The convention will enter into force 12 months after 25 States representing 25% of the world's merchant shipping tonnage have ratified it.
Current Status (As of April31, 2007): It has 23 ratifications representing 17.06% of the world’s tonnage.
It will prohibit the use of harmful organotin in anti-fouling paints used on ships and will establish a mechanism to prevent the potential future use of other harmful substances in anti-fouling systems. Ships of above 400 gross tonnage and above engaged in international voyages will be required to undergo an initial survey before the ship is put into service or before the International Anti-fouling System Certificate is issued for the first time; and a survey when the anti-fouling systems are changed or replaced. Ships of 24 metres or more in length but less than 400 gross tonnage engaged in international voyages will have to carry a Declaration on Anti-fouling Systems signed by the owner or authorized agent. The Declaration will have to be accompanied by appropriate documentation such as a paint receipt or contractor invoice.
In 1990 IMO’s Marine Environment Protection Committee (MEPC) adopted a resolution which recommended that Governments adopt measures to eliminate the use of anti-fouling paint containing TBT on non-aluminum hulled vessels of less than 25 metres in length and eliminate the use of anti-fouling paints with a leaching rate of more than four microgrammes of TBT per day.
In November 1999, IMO adopted an Assembly resolution that called on the MEPC to develop an instrument, legally binding throughout the world, to address the harmful effects of anti-fouling systems used on ships. The resolution called for a global prohibition on the application of organotin compounds, which act as biocides in anti-fouling systems on ships by 1 January 2003, and a complete prohibition by 1 January 2008.
9. INTERNATIONAL CONVENTION FOR THE CONTROL AND MANAGEMENT OF SHIPS' BALLAST WATER AND SEDIMENTS
Adoption: 13 February 2004Entry into force: 12 months after ratification by 30 States, representing 35 per cent of world merchant shipping tonnage.
Current Status (As of April31, 2007): It has 8 ratifications representing 3.21% of the world’s tonnage.

The problem of invasive species is largely due to the expanded trade and traffic volume over the last few decades. The effects in many areas of the world have been devastating. The problem of harmful aquatic organisms in ballast water was first raised at IMO in 1988 and since then IMO's Marine Environment Protection Committee (MEPC), together with the Maritime Safety Committee (MSC) and technical sub-committees, have been dealing with the issue, focusing in the past decade first on guidelines and then on developing the new convention.

This Convention aims to prevent, minimize and ultimately eliminate the transfer of harmful aquatic organisms and pathogens through the control and management of ships' ballast water and sediments. Parties should ensure that ballast water management practices do not cause greater harm than they prevent to their environment, human health, property or resources, or those of other States.
Parties are given the right to take, individually or jointly with other Parties, more stringent measures with respect to the prevention, reduction or elimination of the transfer of harmful aquatic organisms and pathogens through the control and management of ships' ballast water and sediments, consistent with international law.
Ships are required to be surveyed and certified (Article 7 Survey and certification) and may be inspected by port State control officers (Article 9 Inspection of Ships) who can verify that the ship has a valid certificate; inspect the Ballast Water Record Book; and/or sample the ballast water. Ships are required to have on board and implement a Ballast Water Management Plan approved by the Administration (Regulation B-1).
Some examples of aquatic bio-invasions causing major impact are listed in the
Name
Native to
Introduced to
Impact
CholeraVibrio cholerae (various strains)
Various strains with broad ranges
South America, Gulf of Mexico and other areas
Some cholera epidemics appear to be directly associated with ballast water
Cladoceran Water FleaCercopagis pengoi
Black and Caspian Seas
Baltic Sea
Reproduces to form very large populations that dominate the zooplankton community and clog fishing nets and trawls, with associated economic impacts
European Green CrabCarcinus maenus
European Atlantic Coast
Southern Australia, South Africa, the United States and Japan
Highly adaptable and invasive. Resistant to predation due to hard shell. Competes with and displaces native crabs and becomes a dominant species in invaded areas. Consumes and depletes wide range of prey species.


CONVENTIONS ON LIABILITY
1.INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE (CLC), 1969

Adoption: 29 November 1969Entry into force: 19 June 1975
Current Status (As of April31, 2007): ratified by 39 countries representing 7.5% of the world’s tonnage.
This was adopted to ensure that adequate compensation is available to persons who suffer oil pollution damage resulting from maritime casualties involving oil-carrying ships. It places the liability for such damage on the owner of the ship from which the polluting oil escaped or was discharged. Liability is strict; it is the duty of the owner to prove in each case that any of the exceptions should in fact operate. The Convention covers pollution damage resulting from spills of persistent oils suffered in the territory (including the territorial sea) of a State Party to the Convention. Spills from tankers in ballast or bunker spills from ships other than other than tankers are not covered, nor is it possible to recover costs when preventive measures are so successful that no actual spill occurs.
2. INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE (FUND), 1971
Adoption: 18 December 1971
Entry into force: 16 October 1978
The 1969 Civil Liability Convention provided a useful mechanism for ensuring the payment of compensation for oil pollution damage; it did not deal satisfactorily with all the legal, financial and other questions raised during the Conference adopting the CLC Convention. The purposes of this Fund are
To provide compensation for pollution damage to the extent that the protection afforded by the 1969 Civil Liability Convention is inadequate.
To give relief to ship owners in respect of the additional financial burden imposed on them by the 1969 Civil Liability Convention, such relief being subject to conditions designed to ensure compliance with safety at sea and other conventions.
To give effect to the related purposes set out in the Convention.

The 2003 Protocol establishing an International Oil Pollution Compensation Supplementary Fund was adopted by a diplomatic conference held at IMO Headquarters in London. The aim of the established Fund is to supplement the compensation available under the 1992 Civil Liability and Fund Conventions with an additional, third tier of compensation

3.CONVENTION RELATING TO CIVIL LIABILITY IN THE FIELD OF MARITIME CARRIAGE OF NUCLEAR MATERIAL (NUCLEAR), 1971
Adoption: 17 December 1971Entry into force: 15 July 1975
Current Status (As of April31, 2007): ratified by 17 countries representing 20.11% of the world’s tonnage.
The purpose of this Convention is to resolve difficulties and conflicts which arise from the simultaneous application to nuclear damage of certain maritime conventions dealing with ship owners' liability, as well as other conventions which place liability arising from nuclear incidents on the operators of the nuclear installations from which or to which the material in question was being transported.



4.CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS (LLMC), 1976

Adoption: 19 November 1976Entry into force: 1 December 1986
Current Status (As of April31, 2007): ratified by 51 countries representing 48.33% of the world’s tonnage. Accession by Latvia on 18 April 2007 Date of entry into force for Latvia: 17 July 2007, Accession by France on 24 April 2007Date of entry into force for France: 23 July 2007.

The Convention replaces the International Convention Relating to the Limitation of the Liability of Owners of Seagoing Ships, which was signed in Brussels in 1957, and came into force in 1968.Under the 1976 Convention, the limit of liability for claims covered is raised considerably, in some cases up to 250-300 per cent. Limits are specified for two types of claims - claims for loss of life or personal injury, and property claims (such as damage to other ships, property or harbour works).

5.ATHENS CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA (PAL), 1974
Adoption: 13 December 1974Entry into force: 28 April 1987
Current Status (As of April31, 2007): ratified by 32 countries representing 39.65% of the world’s tonnage.
The Convention is designed to consolidate and harmonize two earlier Brussels conventions dealing with passengers and luggage and adopted in 1961 and 1967 respectively. The Convention establishes a regime of liability for damage suffered by passengers carried on a seagoing vessel. It declares a carrier liable for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier. As far as loss of or damage to luggage is concerned, the carrier's limit of liability varies, depending on whether the loss or damage occurred in respect of cabin luggage, of a vehicle and/or luggage carried in or on it, or in respect of other luggage.
6. INTERNATIONAL CONVENTION ON LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION WITH THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES BY SEA (HNS), 1996
Adoption: 3 May 1996
Entry into force: 18 months after the following conditions have been fulfilled:
12 States have accepted the Convention, four of which have not less than two million units of gross tonnage
Current Status (As of April31, 2007): ratified by 8 countries representing 4.83% of the world’s tonnage.
The Convention will make it possible for up to US$320 million to be paid out in compensation to victims of accidents involving HNS, such as chemicals. The HNS Convention is based on the two-tier system established under the CLC and Fund Conventions However; it goes further in that it covers not only pollution damage but also the risks of fire and explosion, including loss of life or personal injury as well as loss of or damage to property.
7. INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR BUNKER OIL POLLUTION DAMAGE, 2001

Adoption: 23 March 2001.
Entry into force: Enters into force 12 months following the date on which 18 States, including five States each with ships whose combined gross tonnage is not less than 1 million gt have either signed it without reservation as to ratification, acceptance or approval or have deposited instruments of ratification, acceptance, approval or accession with the IMO Secretary-General.
Current Status (As of April31, 2007): ratified by 15 countries representing 16.16% of the world’s tonnage. Ratification by Germany on 24 April 2007.

The Convention was adopted to ensure that adequate, prompt, and effective compensation is available to persons who suffer damage caused by spills of oil, when carried as fuel in ships' bunkers. The Convention applies to damage caused on the territory, including the territorial sea, and in exclusive economic zones of States Parties.
INDIA AND THE CONVENTIONS
The Conventions, which have not been ratified by India, are
Ø MARPOL 73/78 Annex VI: Prevention of Air Pollution from Ships
Ø Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter, 1972
Ø Intervention On The High Seas In Cases Of Oil Pollution Casualties Protocol, 1973
Ø Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (NUCLEAR), 1971
Ø Limitation of Liability for Maritime Claims (LLMC) Protocol, 1996
Ø International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), 1996
Ø Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (HNS Protocol)
Ø International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
Ø International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), 2001
Ø International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004
Ø Athens Convention Relating To The Carriage Of Passengers And Their Luggage By Sea (Pal), 1974

Indian shipping policy is not isolated or any different from the global maritime environment. The main source of maritime law, besides domestic law, has been international conventions to which India is a signatory. Under the Constitution of India, the Ministry of Surface Transport deals with merchant shipping. The principal legislation dealing with the combating of oil pollution is;
Ø The Merchant Shipping Act of 1958 (MS Act)
Ø The Marine Insurance Act of 1963
Ø The Merchant Shipping (Prevention of Pollution of the Sea by Oil) Rules, 1974.
I would be concentrating on the MS Act in my work. Part XB, XC and XIA are the most important Parts relating to the topic.
Part XB dealing with Civil Liability For Oil Pollution Damage, which contains S.352G to 352R, was inserted by the Act.12 of 1983. Part XC dealing with International Oil Pollution Compensation Fund which contains S. 352S to 352ZA was inserted by Act.63 of 2002. Part XIA dealing with Prevention and Containment of Pollution Of the Sea By Oil which contains S.356A to 356-O was inserted by Act.12 of 1983.
Part XB is applicable to every Indian ship and every foreign ship while it is at an Indian port or place or in the territorial waters of India. [10] Section 352I of the Act deals with the extent of the liability of the ship owner. However, the ship owner is exempted from liability in certain specified cases. The onus is on the owner to show that the pollution damage resulted as a result of the things mentioned in the exemptions.
Ø From an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character or
Ø Was wholly caused by an act or omission done with an intent to cause such damage by any other person or
Ø Was wholly caused by negligence or other wrongful act of any Govt. or other authority responsible for the maintenance of lights or other navigational aids
There are provisions under the MS Act to limit the liability of the shipowner in case of oil pollution damage.[11] However, if the incident occurred as a result of the actual fault or privity of the owner, the owner is not entitled to such limitation. Additionally, the owner has to apply to the High Court for constitution of a limitation fund[12] to avail itself of the benefit of the above limitation of liability. India is currently considering amending the MS Act to increase the level of limitation of liability. If two or more ships are there, then the owners of all the ships will be jointly and severally liable.

Section 352 N of the MS Act makes it compulsory for the owner of a ship which carries 2,000 tons or more of oil to have suitable insurance or some other form of financial guarantee. In M.V. Sea Success v. L and L.S.P. Indemnity Assn Ltd[13] it was held that no ship shall be permitted to enter respective port without having protection and indemnity cover to have a maritime adventure.

India ratified the International Convention on the establishment of an International Fund for Oil Pollution Damage in 1990. The fund provides compensation for oil pollution damage resulting from oil discharge from tankers in member states. The 1971 fund is able to pay compensation only in respect of claims fulfilling the criteria for admissibility laid down in the CLC and Fund Conventions. Part XC deals with the International Oil Pollution Compensation Fund. S.352T deals with the contribution to the Fund, which is to be in accordance with Art.10 and 12 of the Fund Convention. The person liable to pay the contribution shall be-(1) in the case of contributing oil which is imported into India, the importer or(2) in any other case, the person by whom the oil is receive in India. Under S.352V the Central Govt. has the power to call on information regarding the persons who are to make contributions to the Fund. Any person who does not comply with this is guilty of an offence punishable under the Act. S.352X says that any action for a claim against the Fund for compensation shall be brought under the High Court.
Part XIA deals with the Prevention and Containment of Pollution Of the Sea By Oil. As per S.356A this apart applies to oil tankers of 150 tons gross or more, other ships of 400 gross tons or more and off shore installations and incident of marine casualty which poses imminent threat to Indian coast line or pollution of sea by oil, ballast water, noxious liquid or other harmful substances. This Part specifically omits war ships or Govt. owned or operated ships. S.356C makes it clear that to proceed to sea the ship has to have a certificate issued by the Central Government called International Oil Pollution Prevention Certificate and in the case of ships carrying noxious liquids a certificate issued by the Central Government called International Pollution Prevention Certificate. Also there has to be another certificate called the International Sewage Pollution Prevention Certificate. S.356D says that the Central Government can issue these certificates to foreign ships of countries that are party to the Convention at their request.S.356E says that the Central Govt. has power to make rules requiring Indian tankers or other ships to be fitted with such equipment to prevent oil pollution. By S.356F it says every ship should have a record book. S.356G gives the power to an authorised person to inspect the ship at any reasonable time to find out whether the necessary safety measures are taken. Under S.356H if the Director General is satisfied that the ship is in contravention of the provisions of the Convention then he may detain the ship and proceed against her for recovery of cost of pollution damage. Under S.356I the port authorities shall have the power to provide reception facilities and may charge for the use of the facilities.
Under S.356J the Central Govt. if satisfied that pollution by oil or other noxious liquid substance is occurring or likely to occur then it has the power to give notice to the owner, agent, master or charterer of the ship or tanker to take necessary action. If any person fails to comply with the notice, then the Central government has the power to take measures to carry out the directives, and contain the pollution already caused or prevent the pollution as per S.356K. and as per S.356L the Central Government can give directions to certain other ships to render certain services like lightening or transporting cargo or equipment from or to the polluting ship and render assistance.
S.356M says that Oil Pollution Cess shall be levied on every ship calling to any port in India, which carries oil as its cargo, at a rate of 50 paise for each tonne of oil imported by a ship into India in bulk and in case of each tonne of oil shipped from any place in India in bulk and until this cess is paid the ship will not be given port clearance as per S.356N. under S.356O the Central Government has the power to make rules to carry out purposes of this Part.

CONCLUSION

Effective tackling of pollution of the sea is the only chance by which we can move forward as the sea is by far one the most important factors governing our lives. The world in the present scenario has come in tune with the reality and succumbing to its fears has started taking necessary action to prevent and lessen the effect of man’s uncontrolled growth on Mother Nature. The Conventions that I discussed had gone deep into the topic and analyzed the various ways by which we can reduce the pollution and bring about a harmony in this world.

To achieve these goals we still have a long weary way to tread. But we have no other go. More and more problems would definitely arise and we should be able to make our laws in tandem with the ever-changing scientific and technological advances.

As far as India is concerned it should bring about more elaborate laws to check pollution and also ratify the international agreements that are made from time to time. The MS Act does not apply to pollution on the high seas. However, for a peninsular country like India, it is extremely important to have provisions to prevent pollution of the high seas adjoining its EEZ. The International Convention relating to Intervention on the High Seas in case of Pollution Casualties, 1969, extends the jurisdiction of a coastal state to the high seas, but only when it poses a grave and imminent danger to fishing, tourism and wildlife. India has not yet ratified this convention.

Thus to bring about a newer machinery to combat this threat which is on the rise we should be well aware of the developments occurring amongst us and make necessary changes in regard to that.
BIBLIOGRAPHY

1. Simon Baughen, Shipping Law, Cavendish Publishing Ltd., (3rd edn., London), 2004
2. Panetta, L. E. (Chair) (2003). America's Living Oceans: Charting A Course For Sea Change [Electronic Version, CD] Pew Oceans Commission.
3. Meinesz, A. (2003). Deep Sea Invasion. The Impact of Invasive Species. PBS: NOVA from http://www.pbs.org/wgbh/nova/algae/impact.html visited on May 10th, 2007
4. National Research Council, Committee on the Ocean's Role in Human Health, Ocean Studies Board, Commission on Geosciences, Environment, and Resources. (1999). From monsoons to microbes: understanding the ocean's role in human health. Washington, D.C.: National Academy Press
5. Gerdes, L. I. (Eds.). Endangered oceans. San Diego, California: Greenhaven Press, (2004),
6. Khee-Jin Tan, A. Vessel-source marine pollution: the law and politics of international regulation. Cambridge: Cambridge University Press, (2006).
7. www.wikipedia.com
8. Britannica Encyclopedia 2006

(The author can be contacted at subin129@yahoo.com)

[1] Eutrophication is caused by the increase of chemical nutrients, typically compounds containing nitrogen or phosphorus, in an ecosystem. It may occur on land or in water. Eutrophication is frequently a result of nutrient pollution such as the release of sewage effluent into natural waters (rivers or coasts) although it may also occur naturally in situations where nutrients accumulate (e.g. depositional environments) or where they flow into systems on an ephemeral basis (e.g. intermittent upwelling in coastal systems). Eutrophication generally promotes excessive plant growth and decay, favors certain weedy species over others, and is likely to cause severe reductions in water quality .
[2] Panetta, L. E. (Chair) (2003). America's living oceans: charting a course for sea change [Electronic Version, CD] Pew Oceans Commission.
[3] Supra n.2
[4] Meinesz, A. (2003). Deep Sea Invasion. The Impact of Invasive Species. PBS: NOVA from http://www.pbs.org/wgbh/nova/algae/impact.html visited on May 10th, 2007
[5] National Research Council, Committee on the Ocean's Role in Human Health, Ocean Studies Board, Commission on Geosciences, Environment, and Resources. (1999). From monsoons to microbes: understanding the ocean's role in human health. Washington, D.C.: National Academy Press
[6] Ibid.
[7] Supra n.2
[8] Gerdes, L. I. (Eds.). (2004). Endangered oceans. San Diego, California: Greenhaven Press.
[9] Khee-Jin Tan, A. (2006). Vessel-source marine pollution: the law and politics of international regulation. Cambridge: Cambridge University Press

[10] S.352G Merchant Shipping Act,1958
[11] S.352J Merchant Shipping Act,1958
[12] S.352K Merchant Shipping Act,1958
[13] AIR 2002 Bom.151

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