Discharge of Oily Substances


Published: 16 March 2009

Recently the Dutch public prosecutor imposed a fine on a ship owner for an alleged illegal discharge in the Mediterranean Sea. Bilge water was discharged using an oil water separator (OWS) which was not equipped with an alarm and stopping device.

The question arose whether or not the Dutch public prosecutor had jurisdiction to impose this fine. The legal situation appeared to be quite complex and therefore we give you this explanation for your guidance, which is also relevant to other jurisdictions.

Under Annex 1 of Marpol 73/78 the Mediterranean Sea is designated as a special area. Any discharge of "oily or oily-mix oil" or "oily mixtures" in this special area is prohibited, unless additional conditions are complied with. Additional conditions are that an OWS is to be equipped with a 15 ppm alarm and ultimate stopping device. The actual issue of jurisdiction is arranged for in Article 218 UNCLOS (United Nations Conventions on the Laws of the Sea). Based on this article the Netherlands as port state (the State of the next port of call) could institute proceedings in respect of the discharge outside its internal waters, territorial sea or exclusive economic zone. Only if the discharge was performed in an exclusive economic zone of a different (Mediterranean) country, prosecution would be permitted if a specific request from the relevant coastal zone is received (Article 218 sub 2 UNCLOS).

Therefore the Dutch public prosecutor had jurisdiction in this specific matter. Owners should therefore be aware that they cannot escape from prosecution for an illegal discharge in a special area, even in international waters.

We have received the following information from our Correspondent Wiersma Van Campen Vos in Amsterdam, The Netherlands.