Innovative tools for preventing marine pollution from ships

GRISELDA D. CAPALDO

Maritime Law: Issues, Challenges and Implications

Nova Science Publishers

Lugar: New York; Año: 2009; p. 15 - 22

This chapter aims to provide a general background and view on the environmental impact caused by maritime transport on oceans, focusing our attention on the pollution caused by crude oil leaked into them. Based on worldwide trends and statistics, the report also provides a range of innovative ideas to improve the applicability of environmental conventions to sub-standard ships that menaces the marine preservation. A catalogue of such additional steps may consist in: - strengthening the erga ommes feature of those international conventions dealing with preventive measures and compensation arising from oil marine pollution from ships. To the author’s point of view the erga omnes opposability will broaden the group of States bound by such treaties obligations. Its immediate strategic effect is to assure their observance in global commons and those areas where none State have jurisdiction or sovereignty, and also to take appropriate countermeasures in response to serious erga omnes breaches; - carrying out periodical Assessment of law enforcement to outline responses that are likely to overcome such legal “misdesign” and consequently to deal with the problem of “lack of or insufficient law enforcement”; -  adding other relevant Conventions to the Port State Control policy (PSC). With the main purpose of eradicating sub-standard shipping practices and protecting the marine environment, Port States are entitled to control foreign ships visiting their own ports to ensure that deficiencies are rectified before leaving. The effectiveness of this useful preventive tool largely depends on the number and sort of international duties controlled at local ports. However, a comparison among the current nine PSC regional systems demonstrates that only eight Conventions among the more relevant fifteen ones are implemented by Port States;   - introducing differentiated port dues based on the environmental performance of ships. This goal could be reached through the Green Award Flag in order to limit costs of implementation and control. The Green Award Flag[1] is an initiative of the Dutch Ministry of Transport –establishes as of 1994- that offers incentives for environmentally responsible shipping. Candidates to apply for are those ship-owners that adhere to high standards in the field of quality, safety, and environmental protection. The Certificate is valid for 3 years and with the Award, they receive beneficial treatment, such as a reduction in port fees or dues rate at around 50 ports around the world and discounts in insurance contracts - employing and admitting in legal actions against shipowners the latest technologist -such as Satellite information and images- as evidence before courts in order to punish any law infringement (international or national). In the Singapore Case, for instance, an ERS-SAR satellite image showing near-real-time oil discharge from a tanker was accepted as evidence in a court of law and the responsible party was subsequently pleaded guilty and heavily fined. On the contrary, in many other cases as Courts could not adequately meet the onus probandi, polluters have been given the benefit of doubt (i.e. Bangladesh, India, Pakistan, Maldives, Sri Lanka). In its juridical sense, evidence is a narrow term that includes only the kinds of proof that according to the domestic legal rules may be submitted at a trial. Many States don’t accept them because they are neither documentary nor expert witness evidence. They would be a sort of sum of both, that is a third kind of burden of persuasion. This “procedural gap” may be filled admitting satellite information / images by legislation and courts as evidence to prosecute wrongdoers. The direct benefit is not only to enhance the legal control but mainly to improve law and treaties enforcement. [1] See www.greenaward.org. Since 1 January 2000 the organization is completely independent. - introducing differentiated port dues based on the environmental performance of ships. This goal could be reached through the Green Award Flag in order to limit costs of implementation and control. The Green Award Flag[1] is an initiative of the Dutch Ministry of Transport –establishes as of 1994- that offers incentives for environmentally responsible shipping. Candidates to apply for are those ship-owners that adhere to high standards in the field of quality, safety, and environmental protection. The Certificate is valid for 3 years and with the Award, they receive beneficial treatment, such as a reduction in port fees or dues rate at around 50 ports around the world and discounts in insurance contracts - employing and admitting in legal actions against shipowners the latest technologist -such as Satellite information and images- as evidence before courts in order to punish any law infringement (international or national). In the Singapore Case, for instance, an ERS-SAR satellite image showing near-real-time oil discharge from a tanker was accepted as evidence in a court of law and the responsible party was subsequently pleaded guilty and heavily fined. On the contrary, in many other cases as Courts could not adequately meet the onus probandi, polluters have been given the benefit of doubt (i.e. Bangladesh, India, Pakistan, Maldives, Sri Lanka). In its juridical sense, evidence is a narrow term that includes only the kinds of proof that according to the domestic legal rules may be submitted at a trial. Many States don’t accept them because they are neither documentary nor expert witness evidence. They would be a sort of sum of both, that is a third kind of burden of persuasion. This “procedural gap” may be filled admitting satellite information / images by legislation and courts as evidence to prosecute wrongdoers. The direct benefit is not only to enhance the legal control but mainly to improve law and treaties enforcement. [1] See www.greenaward.org. Since 1 January 2000 the organization is completely independent. - introducing differentiated port dues based on the environmental performance of ships. This goal could be reached through the Green Award Flag in order to limit costs of implementation and control. The Green Award Flag[1] is an initiative of the Dutch Ministry of Transport –establishes as of 1994- that offers incentives for environmentally responsible shipping. Candidates to apply for are those ship-owners that adhere to high standards in the field of quality, safety, and environmental protection. The Certificate is valid for 3 years and with the Award, they receive beneficial treatment, such as a reduction in port fees or dues rate at around 50 ports around the world and discounts in insurance contracts - employing and admitting in legal actions against shipowners the latest technologist -such as Satellite information and images- as evidence before courts in order to punish any law infringement (international or national). In the Singapore Case, for instance, an ERS-SAR satellite image showing near-real-time oil discharge from a tanker was accepted as evidence in a court of law and the responsible party was subsequently pleaded guilty and heavily fined. On the contrary, in many other cases as Courts could not adequately meet the onus probandi, polluters have been given the benefit of doubt (i.e. Bangladesh, India, Pakistan, Maldives, Sri Lanka). In its juridical sense, evidence is a narrow term that includes only the kinds of proof that according to the domestic legal rules may be submitted at a trial. Many States don’t accept them because they are neither documentary nor expert witness evidence. They would be a sort of sum of both, that is a third kind of burden of persuasion. This “procedural gap” may be filled admitting satellite information / images by legislation and courts as evidence to prosecute wrongdoers. The direct benefit is not only to enhance the legal control but mainly to improve law and treaties enforcement. [1] See www.greenaward.org. Since 1 January 2000 the organization is completely independent.