In January changes to the way in which Cargo residues were classified came into effect by way of changes to MARPOL Annex V (see our client alert of 8 March 2013; Revised MARPOL Annex V: Just Who Should Take Out the Trash?). These changes were met with some concern by both charterers and owners in that any residues of cargo designated hazardous to the marine environment HME were now to be discharged to reception facilities ashore and could no longer be disposed of on passage.
Quite apart from the immediate operational issues owners would face, concerns were focused on two main areas:
- The database required for the HME designation was not ready and not expected to be fully operational until sometime in 2015
- It was claimed that the ports were not yet ready to provide the necessary reception facilities in order for owners to be able to discharge wash-water containing HME cargo residues
After six months of implementation and various issues, the difficulties were discussed at the sixty-fifth session of the Marine Environment Protection Committee of the IMO between 13 and 17 May 2013. In light of the difficulties and, resulting from those discussions, the IMO has agreed to relax the rules relating to cargo hold wash-water containing bulk cargo residues where the cargo was designated HME, for a period until 31 December 2015. The rules now allow discharge of such wash-water outside (MARPOL) special areas provided that:
- Based on information received from the port authority the master determines that there are no adequate reception facilities at either the receiving terminal or the next port of call;
- The ship is en route and as far as practicable from the nearest land but no less than 12 miles;
- Before washing, solid bulk cargo residue is removed (and bagged for discharge ashore) as far as practicable and holds are swept;
- Filters are used in the bilge wells to collect any remaining solid particles and minimise solid residue discharge; and
- The discharge is recorded in the garbage record book and the flag state is notified of the alleged inadequacies of the port reception facilities.
The criteria allow for discharge of such HME residues overboard, but this is not a licence to return to the uncontrolled discharge of such residues overboard.
Considering the first point, the master should make reasonable enquiries as to the port reception facilities to ensure that there are no adequate reception facilities in either the port of discharge or the next port. Any replies to queries should be retained (perhaps with the garbage record book) in addition to retaining the report that was sent to the flag state detailing the alleged inadequacies.
It is also necessary to consider where the discharge can take place; it is not sufficient to step 12 nautical miles from land with a set of dividers and start discharge. Whilst not expressly stated, the inclusion of the phrase “as far as practicable from the nearest land” suggests that the voyage from the discharge port and the next port needs to be considered as a whole, and the point furthest from land across the whole of the passage chosen. Thus on a voyage from the eastern seaboard of the United States of America to the Western Approaches, the furthest point of land would be somewhere around mid-Atlantic taking into account the Azores perhaps. The difficulty will be where the voyage orders change or where the next port is not known at the commencement of the passage. Care should be taken to ensure that this provision is complied with as closely as possible in the circumstances; masters who are unsure should consult their compliance departments or the DPA.
The final issue to consider is the use of filters to remove any remaining solid particles. The drafting of this provision should be considered carefully. The Oxford English dictionary defines “particle” as: “A minute portion of matter”. No definition or guidance is provided on how minute the portion has to be nor how small the particles collected by any filter are required to be; this will no doubt be subject to the vagaries of interpretation of various port state investigators. In addition the practical difficulties of a fine particulate filter on a cargo bilge will not be lost on the operational departments of owners. Any fine mesh filter may be liable to clogging and, dependent on filter design and location, may well be impossible to clean in circumstances where the filter becomes clogged, conceivably with wash-water still in the hold. Complying with this provision will require careful thought and it may be that different filters will be required for different cargoes.
In addition to the practical problems, such outcomes could give rise to questions of seaworthiness. For example where the owner is under different voyage charters for different parcels of cargo, if a filter were to clog and this cargo hold not then be able to be emptied of water containing the residue, the owners of the other cargoes under different charters might wish to assert a claim for any loss or delay incurred as a result of the inability to discharge the bilge water. Conceivably these could be framed as allegations of un-seaworthiness or a failure to exercise due diligence in that respect.
Whilst these changes will no doubt come as a welcome relief to owners and charterers that have been struggling because of the nature of their trade to comply with the regulations, it does not allow owners and charterers to put the MARPOL Annex V provisions to the back of their mind for a further two and a half years. Compliance with this circular in order to discharge HME cargo residues at sea is a somewhat complicated matter, and care should be taken to ensure compliance with all five criteria. We recommend that owners and charterers should ensure that any charters or other contractual documents clearly identify where the cost, responsibility and liability for dealing with such cargo residues lie.