The Merchant Shipping (Implementation of Ship-Source Pollution Directive) Regulations 2009
Wednesday, July 29, 2009
by
Neil Amner
These Regulations, which came into force on 01 July 2009, enhance marine protection through stricter regulation of pollution from ships. In effect, the Regulations represent implementation at national level of the UK’s commitments and obligations under International law (certain parts of the MARPOL Convention on the Prevention of Pollution from Ships) and EU Law (Directive 2005/35/EC on ship-source pollution).
The Regulations disapply the Merchant Shipping Act 1995 to discharges of oil or a mixture containing oil in UK national waters. Such discharges into sea areas will now be regulated by the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 (the “POP Regulations”) and the Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations 1996 (the “NLS Regulations”).
The POP Regulations are amended by the creation of Regulations 11A and 11B which narrate exceptions to the general prohibition on discharges of oil into the sea. These exceptions relate to discharges resulting from damage to a ship or its equipment not caused by a person connected with the ship. Persons connected with a ship include: “seafarers on the ship; the master; the owner; an owner of cargo carried on the ship; and a classification society which has issued a certificate showing the ship conforms to the class standards applied by that society.” Given the broad scope of this definition, it would appear that the categories of people who are able to take advantage of the exception will be relatively narrow.
Regulations 11A and 11B introduce the term “serious negligence” but do not provide a definition. Consequently, this term will come to be defined by relevant case law including the ECJ decision in the Intertanko case (Case C-308/06) which states serious negligence entails “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.”
The explanatory memorandum to the Regulations can be found by clicking on the following link: http://www.opsi.gov.uk/si/si2009/em/uksiem_20091210_en.pdf
For further information on these regulations or other maritime or environmental law matters, please contact Neil Amner.
The information contained in this article is given for general information only, reflects the current law on the date of this article, and does not constitute legal advice on any specific matter