- Brest, 10, 11, 12 December 1997 -

The meeting, recognising the capabilities of remote sensing instruments and referring to the operational methods described in the Bonn Agreement Aerial Surveillance Handbook, concluded that:

1. data obtained by means of Remote Sensing can clearly indicate the appearance of surface pollution;

and

2. the results of the observations by experienced aircrew reflected in their official report and annexed sensor print-outs (if possible) and photographs form a reliable basis for a violation of MARPOL regulations;

3. further technical developments should lead to improved capabilities of systems for detection and discrimination between pollutions, especially during night-time;

4. a night-time identification system should be available for crew to provide evidence of the identity of the suspected polluter.

With regard to technical developments in the field of remote sensing and telecommunications, countries are invited to stress effort to communicate the surveillance results directly from the aircraft to competent authorities in a port state for further investigations on board the vessel suspected of the discharge.

Furthermore, countries are invited to recognise the need for a Central Information Point that handles all the official reports from their own observers and those from other countries and that guides, streamlines and follows up on any concerted action.

It is recognised that accurate quantification of discharged volumes, as well as the requirement to take samples, should be considered of less importance.

The meeting emphasised that trials on visibility limits of discharged oily mixtures from ships have proven that if they are visually detectable, these discharges exceed the permitted 15 ppm, permissible according to MARPOL regulations.

Satellite SAR imagery is considered to be of the same quality as SLAR systems on aircraft. The satellite coverage could, wherever possible, be incorporated into the maritime surveillance operation as an early warning and complementary means of detection.

A generic conclusion is that although technical evidence can and must be further developed, there is, on the technical side at the international level, a large similarity between the tools used for gathering evidence. However, the admissibility of several types of evidence varies per country. The meeting recommended to the next workshop to draft a list of minimum evidence, supplemented by a list of additional types of evidence.

 

1. The Bonn Agreement Manual Oil Pollution at Sea – Securing evidence on Discharges from Ships (1993) is a useful guideline for officers in charge of reporting and assessing offences. This compilation is a strong basis for courts to prosecute the polluters if the procedures are followed correctly.

2. The major problem is mainly the collection of the different elements and particularly the identity of the individuals responsible for the offence. In order to solve this problem, the first task will be to make the national legal systems converge.

This convergence could be achieved by the legislators authorising competent authorities in Member States to prosecute the master of the ship independently from the actions of the crew under his authority. Since the identification of the owner or the operator of the ship is a difficult step, this should be allowed concurrently.

A further step in the convergent adaptation of legal systems would be the generalisation of the prosecution of legal entities whose identification may prove easier. Moreover, this last kind of action may be achieved in law without investigation on board the ship.

Taking into account the delays necessary in such an evolution, efforts should be made regarding the administrative and legal national procedures of investigation.

Two possibilities may be considered:

In order to reach transparency in the national processes, a helpful issue for each Member State would be to appoint one and only one competent court dealing with the prosecution of ships absent from a national port. For example, in the Netherlands, such matters are within the competence of the prosecutor of Amsterdam, in France the Court of Paris. Such specialisation could enable an easier treatment of those difficult matters in an international context.

Finally, it is necessary that each Member State nominates a national contact point, capable of providing to its international partners all necessary information on:

- ships subjected to an investigation, and

- the procedures applicable in its own legal system

in order to avoid any risk of irregularity ending by the nullification of the prosecution.

Administrative and disciplinary means can be effective to sanction offences for those cases where it is legally provided for in the regulations.

Examples include:

1. thorough investigation on board the ship which might, by necessity, interfere with the sailing time schedule of the ship;

2. provision of bank guarantees for settling final damages;

3. encouraging flag states to prosecute shipmasters on the disciplinary level, ending in certain cases by withdrawing or suspending licences.

Conclusions

As understood from the information provided by the different countries, there is a real need and will to work together on cases with international aspects . One could request whether further work should be strictly formalised, or whether one could work together in a less formal way (read: in a faster way).

In every country, the admissible evidence is very similar. Aerial surveillance is accepted in most countries, pictures, testimonies, statements made by officers on board the aircraft are all used as evidence. There are difficulties with samples. For a few countries, it is still a requirement that the natural person responsible for the spill or behind the company owner, freighter or manager has to be identified as the offender in order to take the case to court by summoning the liable natural person.

Some arguments, used by the defence, are well known by every state. However, the better the evidence provided by the prosecutor, the less the defence will be able to bring into doubt the observed facts. The confession is the best evidence a prosecutor can have in his dossier but it is also the weakest. Therefore, it is preferable that a confession be supported by technical evidence, for example pictures taken from an aircraft.

Questions for discussion

The question was raised at what point a control and inspection turns into an investigation ? Would that be at the same point for every country ? In other words, there was a request to clarify whether every country differentiates between an inspection, an investigation and a technical advice. This is important for the procedure that has to be followed.

Improvement in data management is required. Also a good knowledge of each country’s legislation is necessary when investigators investigate a case under a foreign law. The designation of a central contact point for each country whom investigators can contact for legal queries could be taken into consideration.

The discussions showed that:

1. the levels of the fines were dramatically different between participating countries, in a range in excess of 1 to 10 for the same type of pollution;

2. there was general agreement that the higher levels of fines were more appropriate for this type of offence;

3. part of the amount of the fines could be allocated in some countries to specific uses and/or recipients, such as environmental agencies;

4. the economic damages and cleaning costs could either be included in the amount of the fines, or treated as fully separate matters.

This situation was considered as highly unsatisfactory in the sense that it could induce shipmasters to choose where to pollute on the ground of the financial risks incurred.

It also appeared that:

1. a number of participants considered that the key objective of the prosecution was to make the polluter pay a deterrent amount, considering that the most effective way to prevent further pollution was to render it more expensive than complying with the rules;

2. other participants were of the opinion that the offenders should preferably be subject to a public prosecution in Court. Publicity given to these court proceedings would have an economic and deterrent effect.

In relation to the opinions above, the discussions expressed a strong concern of many delegates that the true offenders should be punished without being given the possibility to be indemnified by others, say the master by the owner (to artificially reduce the amount of the fine), or the owner by his P&I Club (to share the risks and pass on their increased premium to consumers through their running expenses).

Finally, it was evident to all participants that the UK had recently developed a more aggressive approach to the prosecution of and penalties for pollution offences. The UK is prepared to take immediate action in those cases where ships are found in UK ports.

On the basis of the above, the session leaders were of the opinion that there is a strong need for at least some level of HARMONISATION between the approaches of the different Bonn Agreement and EU countries and that the following action should be considered:

1. National level

Establishment of closer links between operational personnel and prosecutors

2. Regional level

2.1 Rapid communication:

• use existing networks (Port State Control and related agreements)
• exchange evidence through modern communication systems
• establish legal contact points for information exchange on national requirements
• forward information on non-cooperation of transit ships
• provide a guarantee for fines and compensation for costs

2.2 Establishment of a network between operational personnel and prosecutors in Member States

• workshops
• courses (ACPH training programme)

2.3 Need for compatibility

• who is to be prosecuted
• prevention of ships avoiding justice in one country
• level of fines or other action (economy or custody)
• economic sanctions against owner or operator (civil law)

3. Other issues

3.1 Review of present relevant international instruments (needs to be covered):

• communication
• acceptability of evidence from another state
• efficiency of mechanism for flag-state reaction

3.2 Cooperation with the shipping industry

Consider how to get the shipping business and above all the P&I Clubs to change their attitude and cooperate more actively in resolving the problem.

3.3 Scope of cooperation

Even if the Bonn Agreement can continue to serve as the motor on this matter, there is a need to have the European Commission and EC Member States (non Parties to the Bonn Agreement) involved.

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