As from January 1, 2020, seagoing vessels may no longer use high sulphur fuel oil (HSFO) for combustion, and as from March 1, 2020 may no longer have such bunker oil on board; all unless the vessel is equipped with scrubbers. What happens when the rules are violated?
The legislation with respect to sulphur is supranational; IMO (Marpol Annex VI, Reg 14) and EU (Regulation 2005/33/EG), but enforcement is national. Each and every signatory/member state has its own rules.
The IMO has issued a number of guidelines: there are Resolution MEPC.320(74), 2019 Guidelines for consistent implementation of the 0.50% Sulphur limit under MARPOL Annex VI and (MEPC.1/Circ.881) Guidance for port state control (PSC) on contingency measures for addressing non-compliant fuel issued by the Marine Environment Protection Committee (MEPC). MEPC.320(74) states that the port State should conduct initial inspections based on documents and other possible materials, including remote sensing and portable devices […] if a non-compliance is established […] the port State may prevent the ship from sailing until the ship takes any suitable measures to achieve compliance which may include de-bunkering all non-compliant fuel oil; and MEPC.1/Circ.881 states that the actions predetermined in the Ship implementation plan must be followed, and that non-compliant fuel oil may be discharged to another ship to be carried as cargo or to an appropriate shipboard or land-based facility and/or that the non-compliant fuel oil may be managed in accordance with a method acceptable to the port State.
But these are only non-binding guidelines, and each country may set its own rules. In practice there will be a patchwork of measures and fines, based on the law of the place where the vessel finds itself. As for the Netherlands, measures taken in the past by the local authority (ILENT) in respect of non-compliant fuels had some notoriety, but in view of the wording of the various guidelines one cannot claim fuel oil with a too high sulphur content to be ‘waste’. De-bunkering however may be demanded and fines can be levied.
In the Netherlands the EU Sulphur Directive has been incorporated in the Act Preventing Pollution by Vessels (Wet Voorkoming Verontreiniging door Schepen), with sanctions in the Act Economic Offenses (Wet Economische Delicten). A deliberate act is a crime (misdrijf) punishable with imprisonment of maximally two years or a fine of maximally EUR800.000; a non-deliberate act is an offense (overtreding) punishable with six month imprisonment (hechtenis) and a fine of maximally EUR20.000.
During a seminar in Rotterdam (Aracon, 17/18 October 2019) a list was displayed showing expected fines and sanctions in a number of jurisdictions, partly based on figures and facts from violations of the present sulphur limit: China: fines of between RMB10.000 and RMB100.000; US: in case of deliberate acts fines up to USD500,000, and when documents have been forged imprisonment of many years; Hong Kong: fines up to S$200.000 and imprisonment of maximally three years; Norway: fines up to NOK700.000; Denmark: fines between DKK30.000 and DKK375.000; and South Africa: fines of R500.000 or imprisonment of maximally five years.
It may be, and even is likely, that after January 1, 2020 not in all ports sufficient low sulphur fuel oil may be available, and therefore other fuel must be bought. This does not necessarily mean that sanctions will follow. Based on Resolution MEPC.320(74) a shipowner can issue a Fuel Oil Non Availability Report (FONAR). But it is then up to the relevant PSC whether or not to accept this and allow the vessel to use that fuel.
One thing is for sure, and that is that shortly after January 1, 2020, PSC’s will do regular inspections of the sulphur content: at entering port, at or after bunkering and even when the vessel sails: e.g. Denmark uses sniffer drones measuring the emissions. And another sure thing is that the possible sanctions in case of violations are quite serious indeed.