Sarah Brooke Assistant Vice President, Claims, Lawyer, Skuld has written on the details of the Fuel Oil Non-Availability Report (FONAR), which she noted was “primarily a discretionary tool for a Member State to lessen the breach of MARPOL Annex VI”, adding that it was “not an exemption, but rather a self-declaration by owners that a breach has or is about to occur”.
As reported above, the IMO’s MEPC 74 published its resolutions on May 20th 2019. Section 5 dealt with the ramifications of the aforementioned report.
Brooke wrote that “the concerns over non-availability of globally compliant bunkers of 0.5% bear identical hallmarks of the implementation of the ECA zones and availability of 0.1% back in 2015”, noting that there had been “much discussion on whether owners may rely on the FONAR due to non-availability of compliant fuel”.
She said that how it would be applied by each Member State remained to be seen.
FONAR consists of a detailed questionnaire. Owners who find themselves in breach of Regulation 18 can make use of a FONAR. However, Brooke warned that the evidential threshold was high. Succeeding on a dispensation or reduction of a fine would depend on whether best efforts were made to:
- Source compliant fuel;
- Source local alternative sources.
Even then unavailability would not be a carte blanche to breaching MARPOL, since alternative compliant fuels could have, most likely, been purchased. (eg, 0.1% distillates).
To support a claim that all efforts were made to source complaint fuel, owners will need to furnish exhaustive evidence that a voyage plan was in place, that there were valid reasons for being unable to source compliant bunkers and/or operational issues which would have endangered the vessel had the non-compliant bunkers been burnt.
Brooke said that owners could be sure that the Port State Control (PSC) inspectors would investigate other vessels which called at a port which allegedly did not have compliant fuel available in order to verify the truth of the statements contained within the report.
The PSC will also look for evidence of any fuel changeovers conducted outside of the jurisdiction of the Member States and whether the vessel had working emission control equipment during its visit.
Brooke noted that the PSC would be keeping a record of how many FONARs a vessel and/or their operators request in a period of twelve months. “Any patterns of non-compliance by a fleet will be found out, sanctioned and prevented from submitting future FONARs”, she said.
Concluding, Brooke said that “owners should beware that only a small quantity of non-compliant bunkers should be stemmed, if at all, as entering a Member State will result in the entirety of the non-compliant bunkers being debunkered at owners’ expense to bring the vessel within compliance”.