The ability of companies and their crews to comply with demanding rules continues to be stress-tested as another strict regime controlling ships' emissions comes into force. From August, ships in the US section of the North American Emission Control Area (ECA) - Canada has postponed implementation of the ECA until November this year - will not only have to use fuel with a sulphur content of 1.0% but prove that they are doing so. While, as with other ECAs, the main areas of industry concern have been the availability of such fuel, the extra costs involved and safety implications, the danger of falling foul of vigilant law enforcers has also been stressed.
The US Coast Guard (USCG) recently warned it will enforce the low-sulphur rule by checking paperwork such as bunker delivery notes (BDNs) and oil record books (ORBs). Where any ambiguity exists, it added, it will take and test fuel samples and, where non-compliance is established, will take action that it did not specify but could include "administrative penalties", i.e. fines and, ultimately, prosecution.
Experience gained from the existing ECAs in Europe covering the Baltic and North Seas and from the European Union requirement for ships in port to burn fuel with a 0.1% sulphur content suggests there is ample scope for ambiguity. Some authorities use sampling to check compliance but, as this is a less than foolproof procedure and can be expensive, others prefer to rely - at least initially - on the documentation. BDNs and ORBs are, however, "not particularly robust documents", a recent report notes.
The report* by the Seafarers International Research Centre (SIRC) points out that BDNs - elevated from a record of a commercial transaction to one with a statutory function - are often hand-written and not always in English, while the carbon copy kept by the ship is not always legible. The nature of BDNs and ORBs leaves them open to forgery and fraud, the report claims. In future, a more robust system of electronic BDNs may evolve, it suggests.
Any such drawbacks in documentation have not prevented the USCG from taking action in the past against ships suspected of breaking environmental laws, most notably in the case of oily-water separators when ORBs have often proved a telling source of information.
Since March 2011, it has also been enforcing the Vessel General Permit (VGP) system under which ships are allowed to discharge, under strict controls, 28 different categories of pollutants, including bilgewater, deck run-off and grey water.
Under VGP ships have to meet a daunting set of record-keeping requirements, with regular inspections by the crew having to be logged and kept onboard for a minimum of three years. Any violations of the VGP, along with corrective actions, also have to be carefully recorded and reported by the ship itself.
Since it began enforcing the VGP by including compliance-monitoring in PSC inspections, the USCG says up to the end of last year it has issued 170 deficiencies to foreign-flag ships. Given that the number of calls made at US ports last year by 9,326 foreign-flag ships was almost 80,000, this may seem a relatively low non-compliance rate, due perhaps to the fact the industry has had plenty of time to prepare.
The VGP was established in 2009 when the US Environmental Protection Agency was forced by legal action to withdraw long-standing exemptions for ships' operational discharges from the Clean Water Act. Campaigners for the scrapping of the exemption had focused on cruiseships because of the large amounts of waste they can generate when carrying thousands of passengers and their perceived abuse of the exemption.
All this extra shipboard record-keeping has to be performed by crew whose hours of work and rest are now strictly regulated, more so under the SCTW "Manila Amendments" that began coming into force this year. The new rules, adopted in 2010, make it mandatory for companies to keep individual records of seafarers' hours of work and rest, records that will be subject to PSC inspections. The amendments also mean that no seafarer can work more than 14 hours in a 24-hour period, leaving them less time to do the paperwork.
New training requirements with their obligatory record-keeping needs have also been introduced. Upgrading, refreshing and retraining - from an Able-Bodied Seaman (AB) to an Able Seafarer Deck (ASD) or Able Seafarer Engine (ASE), for example - will all have to be undertaken and logged.
Some of the STCW changes are being phased in over the next few years, so overlapping the entry into force of the Maritime Labour Convention that is expected - - by some, at least - to happen next year and will add another pile of paperwork to finish and keep for inspection.
The onus, lawyers say, is on shipping companies to keep their crews not only up-to-date with new regulations but also impressed with the need to keep records that will pass muster. Prosecutions and detentions have been attributed in part to a failure to do so in the past. Earlier this month, the industry was warned by one US lawyer specialising in environmental compliance that ignorance and poor paperwork were still the main reasons for incidents of non-compliance.
Attempts to cover up any illegal activity can, when uncovered, lead to even more serious consequences. Falsified records such as "doctored" ORBs have been readily exposed when other documentation or physical evidence tells a different story.
The convictions last month of the Master and first officer of the containership Rena should provide a salutary lesson, if one were needed, of the dangers of trying to cover up. Among the charges on which they were found guilty were those arising from their attempts to conceal evidence that they had altered their original voyage plan and then failed to discharge properly their navigational duties.
Running a containership aground and causing pollution may seem a more serious crime, but crew have been jailed for at least as long simply because they tried to hide a dirty secret.
*"Effectiveness of international regulation of pollution control: the case of the governance of ship emissions".
Source: BIMCO