MARPOL Annex VI Enforcement—Are You Prepared? Tips to Enhance Compliance and Reduce Enforcement Risk

Pratt's Energy Law Report

In this article, the authors explain that, with “IMO 2020” now in effect, ship owners and operators trading in U.S. waters should take steps to reduce the risk of an enforcement action.

The United States has been aggressively enforcing compliance with the International Convention for the Prevention of Pollution from Ships (“MARPOL”) for nearly 30 years. Enforcement actions have been brought against ship owners and operators across the industry, as well as against individual masters, engineers, shoreside personnel, and other corporate officers.

To date, most MARPOL prosecutions have involved violations of MARPOL Annex I through “magic pipe” bypasses of the Oily Water Separator (“OWS”) or improper discharges of sludge, though some have involved Annex V garbage violations and, very recently, Annex VI emissions violations. Few, other than in the early 1990s, have involved illegal discharges in U.S. waters; rather, virtually all cases have been brought for false entries in the ship’s records, including the Oil Record Book (“ORB”) and Garbage Record Book. This is because maintaining inaccurate records while in domestic waters or presenting inaccurate records to the U.S. Coast Guard (“USCG”) during an inspection is a crime and the jurisdictional hook needed for prosecution. Most cases also involve some kind of unlawful “post-incident conduct” that constitutes an independent crime under U.S. law, such as destroying records or lying to USCG inspectors or special agents.

While most countries view recordkeeping violations for illegal discharges occurring in international waters as within the purview of the flag State, the U.S. government disagrees—evidenced by the approximately eight to 10 MARPOL prosecutions per year for at least the last decade, including eight in 2018 and nine in 2017, all of which have resulted in high penalties and/or jail time, as well as reputational harm to the ship owners and operators. Not only are MARPOL Annex I prosecutions likely to continue, but we also expect U.S. authorities to begin focusing more heavily on violations of MARPOL Annex VI (air emissions) now that the worldwide sulfur limit of 0.50 percent is in effect. The United States brought the first Annex VI criminal case in 2019, following the same playbook it uses in Annex I cases. And, with the implementation of the 2020 sulfur cap, and all of the compliance challenges that come along with it, the risk of an enforcement action is that much greater. Ship owners and operators must take steps now to ensure compliance with Annex VI, including maintaining accurate records, or risk becoming a target in the next port state control inspection.

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“MARPOL Annex VI Enforcement—Are You Prepared? Tips to Enhance Compliance and Reduce Enforcement Risk,” by Jeanne M. Grasso and Kierstan L. Carlson was published in the June 2020 edition of Pratt’s Energy Law Report (Vol. 20, No. 6), an A.S. Pratt Publication, LexisNexis. Reprinted with permission.