North of England Club’s claims executive Garath Archer has noted that recent incidents in the Netherlands and Germany had shown that different interpretations of “en route” in MARPOL Annex II could leave seafarers unsure of when operational discharges were allowed. He said that, under MARPOL Annex II, noxious liquid substances could be discharged if, subject to the approved categorization of the liquid in question and some other matters, the vessel was proceeding en route at a speed of at least 7 knots (self-propelled vessels) or 4 knots(ships which are not self-propelled).
In the Netherlands, authorities have pressed the matter all the way to the Supreme Court in search of the clear meaning of “en route”.
The case referred to several vessels that had either deviated in their course of direct sailing or sailed directly to and from the same port for the purposes of discharging tank washings in perceived compliance with MARPOL Annex II. These operational discharges took place in the North Sea, but as the vessels were Dutch flagged, matters were addressed within that jurisdiction.
The Dutch Public Prosecutor took the stringent German view that the shipowners were criminally liable as they were not “en route” when discharging noxious substances. The question to be answered by the Supreme Court in 2014 was whether the requirements of being “en route” had been fulfilled in the case of the vessels deviating for the sole purpose of discharging noxious substances.
The Supreme Court found that “en route” meant that the ship should be underway and sailing at or above the speed mentioned in the regulations. Therefore a ship may sail from a port, or deviate, for the sole purpose discharging noxious substances, provided the other requirements of MARPOL were met.
The court further reinforced the point by concluding that the intention of the definition of “en route” as prescribed in MARPOL was to “spread the discharge over as a large an area of the sea as practicable” which would not necessarily be met should the ship be denied the option to deviate, nor would it allow for compliance with the 12 mile off and deep sea route requirements.
However, Archer observed that in Germany there remained ambiguity.
Recent advice given to North by German lawyers was that the local courts were led by the general principle that the goal of MARPOL was to protect the marine environment against discharge of noxious substances so far as possible. Although MARPOL Annex II had been implemented into German law, German domestic laws tended to take precedence where they differed from the convention.
The German See-Umweltverhaltensverordnung regulation (regulation on environmentally sound behaviour in the maritime sector) provided that a vessel was not en route if it undertook a voyage for the sole purpose of discharging noxious substances. As a result, and despite the interpretation confirmed in other jurisdictions, a vessel sailing from a German port for the sole purpose of discharging washings would not be considered ‘en route’ and the vessel’s Master and Chief Engineer would be liable to prosecution.