INTERNATIONAL SALVAGE UNION

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Criminalisation Developments in EU, Canada and
other locations

• INTERNATIONAL SALVAGE UNION
• 8 March 2006
• Peter M. Swift

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Spain rejects Mangouras appealPresentation to
ISU 2004
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Places of Refuge
A Solution Waiting to be Implemented
Presentation to ISU 2004 Erika II Package
December 2000 Requires Each Member State to Draw
up Emergency Plans for Hosting Ships in Distress
in Places of Refuge
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Port Reception Facilities Presentation to ISU 2004

• An International Failure
• - Inadequacy of Reception of Annex I wastes still
  an issue for Tanker Owners
• - States turning to policing measures w/o first
  providing the solution (Mediterranean aerial
  surveillance, Baltic oil tagging) must return
  to the source of the problem, not end of pipe
  solutions
• A European Concern
• Implementation of Directive not uniform ports
  allowed to implement w/o direction from state
  leading to different interpretation of
• Capability of ship to reach next port w/o need
  for discharging waste
• Fee systems increased beyond previous levels
• Over-regulation of facilities causing closures,
  e.g. Italy

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Criminalisation

• Creeping
• Criminalisation is a
• Concern for all in Shipping

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Criminalisation

• A two-fold concern
• Unfair treatment / human rights
• and
• Counterproductive nature of other measures

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Criminalisation

• Vision for Tanker Industry to be recognised as
  responsible and to be respected
• We have stated and stand by our Zero Tolerance
  for illegal acts
• We sympathise with the victims of shipping
  accidents and support fully the provision of
  proper compensation

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Criminalisation

• Criminal sanctions for ship-sourced pollution
• Industry objects to criminalising accidental
  pollution AND condemns illegal discharges
• Need clarity in law AND consistency with
  international law
• Penalties should be proportionate AND have parity
  with other similar offences (ashore)
• Suspects must be treated fairly AND in accordance
  with basic human rights
• States should comply with their obligations to
  provide reception facilities AND places of Refuge
  

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Criminalisation

• Unfair treatment and violation of human rights
• Too many cases of unlawful detentions after
  shipping accidents
• Welcome for the joint IMO/ILO Group on Fair
  Treatment of Seafarers
• Too many other unjust practices unjustified
  fines, denial of shore leave, prohibition of
  terminal access and more

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Criminalisation

• Counterproductive consequences not recognised
• Destroys no blame cultures
• Discourages openness and frank reporting
• Curtails surveyors reports detracts from good
  practice
• Deters salvors in circumstances when we need them
  most
• Deflects focus for proper casualty investigation
  and denies benefits of same
• Destroys and damages morale of seafarers and
  others
• Dissuades new recruits and accelerates departure
  of experienced staff
• Drives responsible people and companies from the
  business
• Is this what the legislators and society are
  seeking ?

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Criminalisation

• What is to be done ?
• PLENTY !

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Criminalisation

• What is being done ?
• Controlling illegal discharges
• Reception facilities Industry-government forum
  (Industry, IMO and EMSA)
• Industry Guidance on Use of Oily Water Separators
  and Completion of Oil Record Book
• Preparing Guide for treatment of engine room
  wastes including means to limit generation of
  waste, better management of waste, better design
  and sizing of equipment, (revisions to Marpol),
  and additional training

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Criminalisation

• What is being done ?
• Industry-wide efforts to
• Remove the threat of criminal sanctions for
  accidental discharges
• Maintain the Supremacy of International Law

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Criminalisation

• Removal of the threat of criminal sanctions for
  accidental discharges
• Maintenance of Supremacy of international law
• EU Action in the High Court in London to test
  the validity of the 2005 EU Directive on Criminal
  Sanctions for Ship-Source Pollution and seeking a
  reference to the European Court of Justice
  criminalises accidental pollution, conflicts with
  existing treaty law obligations under Marpol and
  UNCLOS, and fails to satisfy the principle of
  legal certainty
• CANADA Monitoring of Amendments to Migratory
  Birds and Environmental Protection Acts
  conflicts with Marpol and UNCLOS obligations, and
  includes an assumption of guilt before trial for
  accidental pollution

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Criminalisation

• Conclusions
• We are not perfect AND are not complacent
• Criminalisation concerns us all AND is NOT THE
  SOLUTION
• Fair treatment (especially after an accident) AND
  the detrimental consequences of criminal law MUST
  be spelled out clearly
• This is NOT about confrontation but about
  reality !

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