The International Maritime Organization (IMO) was established to be the international body which creates a level playing field for shipping, from safety to environmental standards, by introducing a global regulatory framework. The idea of an international shipping body is a good one, but whether the current system actually works in the intended manner is another matter.
IMO Member States must ratify individual IMO Conventions in order for those conventions to apply to them. Not all IMO Conventions are implemented by all IMO Member States. Once a contracting State ratifies a Convention, and it enters into force, then it should introduce corresponding national legislation to implement it. The IMO has no power to enforce its own conventions. Territories which have not joined the IMO, or which have chosen not to ratify certain Conventions, cannot be obliged to enforce those Conventions.
Local rules can often be stricter or impose additional obligations to the IMO standard. The IMO’s Member State Audit Scheme, which will be mandatory from 1 January 2016, assesses how effectively Member States implement and enforce relevant IMO Convention standards. However, where Member States’ performance is inadequate the IMO cannot force Member States to improve their performance.
The situation as it stands means that one vessel, which has fulfilled its IMO flag State requirements, may be in breach of legal requirements when it calls in the territorial waters of another IMO Member State. This creates confusion, uncertainty, and disproportionate compliance costs.
It is universally accepted that ballast water can destroy sensitive ecosystems when released untreated into coastal waters. The IMO and the US, in particular, have drafted rules to solve the problem.
The IMO’s Ballast Water Management Convention1 (BWM Convention) is expected to come into force soon2. The BWM Convention requires all vessels to implement a Ballast Water Management Plan, to carry a Ballast Water Record Book and to carry out ballast water management procedures to certain standards. Ballast water management systems must be a type approved by the IMO. If, or when, the BWM Convention does enter into force, vessel owners will have five years to install compliant ballast water management systems. There are currently over 50 such systems which have received IMO approval.
In the meantime, the US has implemented its own ballast water management rules. All ballast water treatment systems used by vessels in US waters must be type-approved by the US Coast Guard.
The US has not signed up to the BWM Convention and the industry does not expect it to do so3. The US considers that the IMO’s “G8” treatment technology type approval guidelines are inadequate4. However, the US regime does not yet specify which equipment will be adequate. Transitional arrangements are in place and manufacturers must apply for US approval.
Worldwide, it is estimated that approximately 62,000 vessels of 400 gross tons or more will need to install treatment technology under the BWM Convention5. Once the BWM Convention enters into force there will be little time for owners to install the equipment, especially if a vessel has a busy agenda of cruises booked. As well as the risk of lost earnings in the event that a vessel has to be withdrawn during a season to have the work done, the World Shipping Council (WSC) estimates that installation of the equipment is likely to cost US$1 million to US$2 million per vessel6.
If the BWM Convention enters into force before US-approved technology is commercially available then vessel owners may be forced to install expensive IMO-compliant equipment which the US Coast Guard might later decide is non-compliant. The WSC and the International Chamber of Shipping have called for the IMO to revise the G8 guidelines, with grandfather provisions to avoid punishing vessel owners who have already installed G8 compliant systems.
Low sulphur requirements
Similar inconsistencies apply in the low sulphur regime, and specifically on trials of technology designed to achieve compliance. Marpol Annex VI provides for an exemption from low sulphur requirements during the period of 18 months when technology, for example scrubbers, are trialled. The US follows this practice. However, the EU Sulphur Directive does not provide for an exemption during the trial period. Recent draft guidance issued by the European Commission would require the specified low sulphur threshold to be observed “on average” during that period. Thus, scrubbers approved for use in the US and fitted by cruise operators may not be compliant with the EU regime as it is currently proposed.
The international regulatory system as it stands is unsatisfactory. The aim should be to have the same rules in each territory. Until the IMO has more power, vessel owners are stuck between a rock and a hard place. Compliance with one regime may mean twice the expenditure if another regime puts its own, different, rules in place.