Criminalisation Developments in EU, Canada and other locations INTERNATIONAL SALVAGE UNION 8 March 2006 Peter M. Swift

Spain rejects Mangouras appeal Presentation to ISU 2004

Places of Refuge A Solution Waiting to be Implemented Presentation to ISU 2004 Erika II Package – December 2000 Requires Each Member State to Draw up Emergency Plans for Hosting Ships in Distress in Places of Refuge

Port Reception Facilities Presentation to ISU 2004 An International Failure: - Inadequacy of Reception of Annex I wastes still an issue for Tanker Owners - States turning to policing measures w/o first providing the solution (Mediterranean aerial surveillance, Baltic oil tagging) – must return to the source of the problem, not end of pipe solutions A European Concern: Implementation of Directive not uniform – ports allowed to implement w/o direction from state leading to different interpretation of: - Capability of ship to reach next port w/o need for discharging waste - Fee systems increased beyond previous levels - Over-regulation of facilities causing closures, e.g. Italy

Criminalisation ”Creeping” Criminalisation is a Concern for all in Shipping

Criminalisation A two-fold concern:  Unfair treatment / human rights and  Counterproductive nature of other measures

Criminalisation  Vision for Tanker Industry: to be recognised as ”responsible” and to be ”respected”  We have stated and stand by our ”Zero Tolerance” for illegal acts  We sympathise with the victims of shipping accidents and support fully the provision of proper compensation

Criminalisation Criminal sanctions for ship-sourced pollution:  Industry objects to criminalising accidental pollution AND condemns illegal discharges  Need clarity in law AND consistency with international law  Penalties should be proportionate AND have parity with other similar offences (ashore)  Suspects must be treated fairly AND in accordance with basic human rights  States should comply with their obligations to provide reception facilities AND places of Refuge

Criminalisation Unfair treatment and violation of human rights  Too many cases of unlawful detentions after shipping accidents  Welcome for the joint IMO/ILO Group on Fair Treatment of Seafarers  Too many other unjust practices – unjustified fines, denial of shore leave, prohibition of terminal access and more

Criminalisation Counterproductive consequences not recognised:  Destroys “no blame” cultures  Discourages openness and frank reporting  Curtails surveyors’ reports – detracts from ”good practice”  Deters salvors in circumstances when we need them most  Deflects focus for proper casualty investigation and denies benefits of same  Destroys and damages morale of seafarers and others  Dissuades new recruits and accelerates departure of experienced staff  Drives responsible people and companies from the business Is this what the legislators and society are seeking ?

Criminalisation What is to be done ? PLENTY !

Criminalisation What is being done ? Controlling illegal discharges  Reception facilities: Industry-government forum (Industry, IMO and EMSA)  Industry Guidance on Use of Oily Water Separators and Completion of Oil Record Book  Preparing Guide for treatment of engine room wastes – including means to limit generation of waste, better management of waste, better design and sizing of equipment, (revisions to Marpol), and additional training

Criminalisation What is being done ? Industry-wide efforts to:  Remove the threat of criminal sanctions for accidental discharges &  Maintain the Supremacy of International Law

Criminalisation Removal of the threat of criminal sanctions for accidental discharges & Maintenance of Supremacy of international law  EU: Action in the High Court in London to test the validity of the 2005 EU Directive on Criminal Sanctions for Ship-Source Pollution and seeking a reference to the European Court of Justice – criminalises accidental pollution, conflicts with existing treaty law obligations under Marpol and UNCLOS, and fails to satisfy the principle of legal certainty  CANADA: Monitoring of Amendments to Migratory Birds and Environmental Protection Acts – conflicts with Marpol and UNCLOS obligations, and includes an assumption of guilt before trial for accidental pollution

Criminalisation Conclusions:  We are not perfect AND are not complacent  Criminalisation concerns us all AND is NOT THE SOLUTION  Fair treatment (especially after an accident) AND the detrimental consequences of criminal law MUST be spelled out clearly This is NOT about confrontation – but about reality !