Pollution in our oceans is a major cause for concern as it damages the marine environment that we depend on.
Sources of marine pollution are diverse and include pollution from:
- Land-based activities such as industrial, agricultural and household wastes
- Overuse of plastics and their careless disposal
- Dumping of wastes at sea, and
- Off-shore activities such as deep sea mining - the effects of which seem to be unknown at this point in time.
In the Pacific region, the shipping industry is a vital means of transportation and trade. However, pollution from the shipping industry in Fiji has recently become a trending topic as pictures surfaced on social media showing a ship engaged in deliberately pumping of oil into the Suva harbour. This story was covered in Fiji's press including in this Fiji Times article
About the Fiji Marine Pollution Law Series
In this bulletin we consider Fiji’s national laws and the relevant criminal offences in relation to different types of marine pollution from ships. We note but do not consider in this bulletin the additional International laws that prohibit dumping of waste and other hazardous materials at sea and also regulate oil spillages from ships and other vessels.
In further legal bulletins as part of the Fiji Marine Pollution Law Series we will consider the law in relation to marine pollution arising from:
- Industrial sources; and
- Household waste
The Southern Phoenix pictured a few weeks before she sank in Suva harbour
The legislative framework
The monitoring of pollution from ships is a collaborative effort between the Ministry of Environment (MOE), Maritime Safety Authority of Fiji (MSAF) and if the pollution occurs within a port area, the Fiji Ports Corporation Limited (FPCL) pursuant to the powers accorded to them by legislation.
Current applicable legislation includes:
- Maritime Transport Act 2013 and regulations
- The Sea Ports Management Act and regulations
- Environment Management Act 2005 (EMA) and regulations.
Different legislation will apply depending on where the pollution incident occurs.
The Sea Ports Management Act and regulations apply to ports and this is inclusive of marinas, wharves, harbours as well as ports that are declared as such in accordance with the legislation.
Where pollution occurs outside of port boundaries, it is regulated by the Maritime Transport Decree and Regulations that creates specific offences aimed at enforcing the good regulation and operation of ships at sea. Further, the EMA and its applicable Regulations provides separate offences to regulate and enforce pollution incidents including those occurring at sea.
Discharge of harmful substances
Pursuant to Section 128 of the Maritime Transport Act, “harmful substance” includes:
- petroleum in any form, including crude oil, fuel oil, sludge, oil refuse and refined petroleum products (other than petrochemicals which are noxious liquid substances)
- any substance specified in the maritime Regulations and any mixture of those substances if carried in bulk in a ship
- drainage and other wastes from any form of toilet, urinal, or toilet scupper on a ship or waste water mixed with such
- drainage from wash basins, wash tubs, and scuppers located in the dispensary, sick bay, or other medical premises of a ship or waste water mixed with such
- drainage from spaces on a ship containing living animals or waste water mixed with such harmful Anti-fouling Systems on ships such as a coating, paint, surface treatment, surface or device that is used on a ship to control or prevent attachment of unwanted organisms
- all food, domestic, and operational waste (excluding fresh fish or parts of it) generated during the normal operations of a ship and liable to be discharged continuously or periodically.
It is an offence to discharge harmful substances from a ship in the following instances:
- within Fiji’s EEZ or onto the seabed below it
- beyond the outer limits of the exclusive economic zone of Fiji but over the continental shelf of Fiji or onto the seabed below it where the ship is involved in the exploration or exploitation of the sea or the seabed
- beyond the outer limits of the exclusive economic zone of Fiji or the seabed below it for any ship registered in Fiji
- within the EEZ of Fiji or beyond the outer limits of that EEZ but over the continental shelf of Fiji or onto the seabed below it as a result of any marine operations.
Where the harmful substance is discharged into the sea from a ship, the master and owner of the ship are liable for the offence or if it is the result of a marine operation, liability is on the person in charge of the operations. However, if the discharge is the result of intentional damage by a person, then the person who committed the offence is liable.
Any person convicted for the discharge of harmful substances into the sea is liable, upon conviction to:
- imprisonment for a term not exceeding 2 years or to a fine not exceeding $200,000.
- a further fine not exceeding $10,000 for every day or part thereof during which the offence is continued, if the offence is a continuing one
- any such amount as assessed by the Court for the costs incurred in removing, containing, rendering harmless or dispersing any harmful substance discharged in relation to the offence.
For the Court to sentence a person to imprisonment, it must be satisfied of certain conditions. The conditions include that the person charged must have intended to commit the offence, or that the offence occurred as a consequence of any reckless act or omission by the person with the knowledge that that act or omission would or would be likely to cause serious damage to the marine environment, and that the commission of the offence has caused or is likely to cause serious damage to the marine environment. Where this applies to a master or owner of a foreign vessel, the offence must have been committed within the internal waters, archipelagic waters and territorial sea.
There are defences available under the Maritime Transport Act for the discharge of harmful substances from ships. However, these defences require the offender to prove that the discharge was for the purpose of ensuring the safety of the ship or life, or where it resulted from damage to the ship or its equipment, that it was not a deliberate or negligent act but rather, that all reasonable action was taken to prevent or minimise the escape of the harmful substance.
Once there has been a discharge of a harmful substance into the sea, it is a requirement under the Maritime Transport Act that immediate notice be given to the Maritime Safety Authority of Fiji (MSAF), the Director of the Ministry of Environment and either the provincial council or the municipality in whose boundary the discharge occurred.
For vessel-based discharges, the duty to inform is that of the master or owner and where it is the result of any marine operations, it is that of the person in charge of such operations. Failure to report is an offence and upon conviction, a maximum penalty of $100,000 applies for individuals with a further fine not exceeding $2,000 for every day or part thereof during which it continued. In relation to a body corporate, the maximum fines are $100,000,000 and $50,000 respectively.
Where harmful substances are discharged from ships at port, the maximum penalty is $100,000 and/or 2 years imprisonment upon conviction.
Discharge of substances for the purpose of avoiding, remedying or mitigating the adverse effects of a marine spill
Section 132 of the Maritime Transport Act makes allowances for the discharge of any substance within Fiji waters for the purpose of avoiding, remedying or mitigating the adverse effects of a marine spill.
Discharge of oil
“Oil” is defined as petroleum in any form, including crude oil, fuel oil, sludge, oil refuse, and refined petroleum products (excluding petrochemicals).
It is permissible under Section 133 of the Maritime Transport Act to discharge oil or mixtures containing oil within Fiji waters, provided that the oil is not derived from the cargo of the ship; the ship is proceeding en route; and the oil content of the discharge before dilution with any other substance does not exceed 15 parts per million.
Where oil is discharged from ships at port, the maximum penalty prescribed for the master of the vessel is $100,000 and/or 2 years imprisonment upon conviction.
Discharge of noxious liquid substances
”Noxious liquid substance” according to Regulation 3 of the Marine (Pollution Prevention & Management) Regulations, 2014 refers to any substance listed in the Pollution Category column of Chapters 17 and 18 of the International Bulk Chemical Code or those included in Annex 2, Chapter 2, Regulation 6 of the MARPOL Convention, or any mixture containing such.
In relation to ships carrying in bulk a noxious liquid substance, it is not an offence to discharge such substances in Fiji waters, provided that it is part of a discharge of clean ballast water or segregated ballast water.
Where noxious liquid substances are discharged from ships into port waters, the master of the vessel is liable to a maximum penalty of $100,000 and/or 2 years imprisonment upon conviction.
Discharge of sewage
Under the Maritime Transport Act, “sewage” includes:
· drainage and other wastes from any form of toilet, urinal, or toilet scupper
· drainage from wash basins, wash tubs, and scuppers located in any dispensary, sick bay or other medical premises
· drainage from spaces containing living animals
· waste waters mixed with the drainage and wastes specified above.
It is an infringement offence to discharge sewage from a Fiji ship within 3 miles from the nearest reef system if the ship is 15 metres or less in length, with the maximum penalty being $2,000.
For ships that are 15 metres or more in length, the applicable distance is 12 nautical miles from the nearest reef system, with a maximum penalty of $10,000.
Where there is a discharge of sewage from a vessel into the waters of a port, the master is liable to a maximum penalty of $100,000 and/or 2 years imprisonment upon conviction.
However, beyond Fiji’s internal waters, Grade A or Grade B treated sewage may be discharged from any ship.
Discharge of garbage
“Garbage” is inclusive of all kinds of victual, domestic, and operational waste generated during the normal operation of the ship and liable to be discharged continuously or periodically (excluding oil, noxious liquid substances, sewage, and fresh fish or its parts).
The discharge of plastics, dunnage, lining and packing materials within Fiji waters (excluding a port or approaches to a port) is an infringement offence with the maximum fine being $2,000 if the ship from which the discharge has been made is less than 15 meters in length, and $10,000 if the ship is more than 15 meters in length.
It is permissible, however, to discharge garbage such as food wastes, paper, rags, glass, metal, bottles and crockery provided that such garbage has been ground to a particle size of 25 millimetres or less and if the discharge occurs at least 3 nautical miles from the nearest reef system and 0.5 nautical miles from any offshore installation device, the contravention of which attracts a fine not exceeding $2,000 if the ship from which the discharge has been made is less than 10 meters in length and $10,000 if the ship is above 10 metres in length.
Like the previously mentioned offences, the discharge of garbage at port from a vessel renders its master liable to a maximum penalty of $100,000 and/or 2 years imprisonment upon conviction.
Discharge of ballast water
“Ballast water” according to the Marine (Ballast Water Management) Regulations 2014 refers to water with its suspended matter taken on board a ship to control trim, list, draught, stability or stresses of the ship.
A ship may exchange ballast water with marine water at least 200 nautical miles from the nearest land and in water at least 200 metres in depth. Where this is not possible, then it should be done at least 50 nautical miles from shore and in waters at least 200 metres deep.
Port regulations require that the master of a vessel ensures that ballast water discharged from the vessel into the waters of the port is not contaminated. The contravention of this requirement is an offence that carries a maximum penalty of $100,000 and/or 2 years imprisonment upon conviction.
Discharge of bathroom and laundry wastes
The Sea Port Management Regulations covers the discharge of any oily mixture, galley, bathroom and laundry wastes that falls within the definition of oil, oily mixture, noxious liquid substances or sewage.
The discharge of any such bathroom and laundry wastes into port waters from any ship is also considered an offence and carries a maximum penalty of $100,000 and/or 2 years imprisonment upon conviction.
Discharge of contaminated tank or cargo washings
It is an offence to discharge contaminated tank or cargo washings from a vessel into port waters. The maximum penalty prescribed is $100,000 and/or 2 years imprisonment for the master of the vessel upon conviction.
However, prior written approval may be obtained from the FPCL by the master of a dry bulk cargo vessel to discharge effluent resulting from a formal wash down of its deck or hold provided that reasonable efforts have been made to remove spilled cargo from its deck or hold.
Discharge of bilge matter containing oil
The master of the vessel is to ensure that bilge matter containing oil is not to be discharged from a ship into port waters. Contravention of this requirement carries a maximum penalty of $100,000 and/or 2 years imprisonment upon conviction.
Discharges pertaining to the normal operations of ships
It is not an offence to discharge a contaminant resulting from the normal operations of a ship.
Separate pollution offences under the Environment Management Act 2005
The EMA is an Act for, amongst other things, waste management and pollution control.
EMA's oversight and regulation of pollution incidents extends to Fiji’s waters including its exclusive economic zone (EEZ). It defines a “pollution incident” as:
“the introduction, either directly or indirectly, of a waste or pollutant into the environment, which results in harm to living resources and marine life, hazards to human health, hindrance to marine activities including fishing and other legitimate uses of the sea, impairment of quality for use of water, air or soil, reduction of amenities or the creation of a nuisance".
EMA defines a “pollutant” as:
“dredged spoil, solid or liquid waste, industrial, municipal or agricultural waste, incinerator residue, sewage, sewage sludge, garbage, chemical waste, hazardous waste, biological material, radioactive materials, wrecked or discarded equipment, oil or any oil residue and exhaust gases or other similar matter”.
Section 45 of the EMA addresses vessel-based pollution offences, with the maximum penalties for a body corporate being 5 times that which is specified for individuals.
For example, it is offence for a person to cause or contribute to the discharge of waste or pollutant from any vessel without lawful authority or reasonable excuse (which the offender is to prove) and upon conviction, is liable to the following:
· for a first offence - a fine not exceeding $250,000 and/or a term of imprisonment not exceeding 3 years
· for a second or subsequent offence - a fine not exceeding $750,000 and/or to a term of imprisonment not exceeding 10 years.
It is also an offence to knowingly or intentionally or with reckless disregard to human health, safety or the environment, cause a pollution incident that results in harm to human health or safety, or severe damage to the environment. Upon conviction, a person is liable to a fine not exceeding $1,000,000 and/or to life imprisonment.
Concluding remarks in relation to the enforcement of Marine Pollution Laws in relation to Ships
Fiji has appropriate legislation to seek the good regulation and operation of ships in Fiji's waters including its EEZ. Given the importance of clean and healthy oceans to Fiji's national interest it is imperative that ships are aware of the law and regulations and comply with them. The specific offences within the Maritime Transport Act show how transgressions or failures to comply may be enforced. In relation to bigger pollution incidents EMA contains some significant penalties.
A common theme for Fiji and its regulatory efforts to secure compliance with environmental legislation is the practical difficulty that its regulatory agencies face. Fiji waters (including archipelagic and territorial seas and ocean spaces in EEZ’s and above the Continental Shelf) constitute a vast area of the Pacific Ocean and for that reason it is a big challenge to monitor the activities of ships at sea. Resources are also limited.
Since the enforcement of marine anti-pollution laws can become a resource and time-consuming exercise, it requires a collaborative effort between the relevant authorities mentioned at the outset as well the general public in reporting incidents of marine pollution.
Suva harbour is experiencing regular visits from cruise ships
This legal bulletin is not, and should not be relied on as, legal advice. It is provided for information purposes only.