Bonn Agreement/

3 Evidence required in different Bonn Agreement countries

None of the Contracting Parties to the Bonn Agreement have formal requirements for evidence based on legislation and any kind of evidence may be taken into account for prosecution purposes. The importance of the different kinds of evidence differs from country to country.

The following examples illustrate what kind of evidence was obtained and used by different courts.

FRANCE

Basic principles

In France, the legal framework is provided by law (Law of 5 July 1983, modified 31 May 1990 and 4 January 1993). The law is applicable to French vessels and to foreign vessels and offshore platforms in the EEZ and territorial sea. The fines can be as high as 1 million Francs (158 461 euro). The master is liable to a sentence provided by French law but the Court can decide to sentence the owner or the operator.

In French criminal law, all types of evidence are allowed, although officers are required to look for evidence in accordance with IMO Resolution A.542.

Cases

1. On 16 March 1994, the Liberian flag tanker TRAQUAIR was reported to have discharged oil into French territorial sea. The ship master was fined 30 000 FF on 27 January 1995 by the Court of Brest, the judge having considered that there was "a network of clues and serious, precise and corroborating presumptions, enabling him to be prosecuted; that effectively, the report statement made on board the Customs plane and the aerial photographs taken established that at 9h local time, in territorial sea and in the wake of the ship the Traquair, there was a polluting discharge extending 10 to 15 meters wide over eight nautical miles long, appearing as an oily slick with brownish broken-up stains, a description sufficiently characterising the oil contained in the discharged liquid". Furthermore, according to the judge, the immediate halt to the discharge as the Customs plane approached represented a presumption of violation. The judge also used the oil register as complementary evidence (the oil register was provided by the maritime inspectors of Antwerp, next port of call, at the request of the French Authorities).

This judgement was the object of an appeal procedure, the defendant having challenged a means of nullity relating to procedure; this concerned the expert not having been sworn in (article 77 of the Penal Code). On l9 September 1996 the Appeal Court of Rennes confirmed the judgement given by the Court and fined the master 250 000 FF (€ 39 615), i.e. over eight times more than what had been decided by the Court of Brest.

In its conclusions, the Appeal Court of Rennes confirmed the condemnation on the grounds of photographs taken, "considering that samples are not essential to prove an offence that can be proved by direct visual observation from an airplane or an helicopter, corroborated by colour photograph".

(The judge then gave a summary of the scientific knowledge underpinning the identification of oil at sea, and pointed to the impossibility of detecting visually a discharge of under 15 mg/l and to the impossibility of detecting from an airplane, in standard visibility conditions, a discharge of under 100 mg/l).

"Considering that these findings establish that the visual observation from an aircraft of an oil spill of over eight nautical miles long and 10 to 15 meters wide is sufficient to prove that the discharge of oil is over 15 ppm with no need for sampling which is not always possible.

Considering that photographs (...) are of sufficient quality to prove the darker colour of the sea in the wake of the ship (...) and the absence of any other ship in the same area at the same time.

Hence it is sure that the spill, with split brownish stains, observed by the agents is in fact from the MV Traquair". The fine has been paid in February 1999.

2. On the 20 September 1995, the Greek tanker SALAMINA was observed discharging in the French EEZ (off Ouessant). On 26 May 1996 the master was fined 300 000 FF by the Court of Paris on the following evidence: photographs (8); official report; telex of the master denying the facts (argued that his ship had encountered the oil); copies of the log book, engines books and oil record book provided by the Dutch coastguard at the request of the French Authorities (the next port of call was Vlissingen). No samples were taken. The judge merely considered "that as a result of the elements in the dossier and the debate, prosecution is justified and the offence legally established, and that X can be declared guilty for acts described as discharging oil in the French economic zone".

GERMANY

Basic principles

According to German Penal Law, individual persons can only be prosecuted and convicted on the grounds of their personal guilt. The facts found during aerial surveillance alone are not sufficient to justify a conviction - even if SLAR, IR/UV Scanner, MWR as well as photo or video camera systems are employed.

Cases

1. During a surveillance flight, the crew of the surveillance plane detected a ship flying a foreign flag, pumping oily residues overboard in the Baltic Sea in the area of German territorial sea. The oil film which the ship left behind extended to approximately two nautical miles. When sighting the plane, the ship stopped the discharge.

In this case, further investigations as detailed below were necessary:

Details concerning periods of responsibility, separated into department deck/engine.

Questioning of the culprit including instructions as to the right against self-incrimination.

Questioning of possible witness.

Water samples as well as comparison samples from the ship were taken and secured, e.g. from different engine room bilges, from the sludge tank and the bunker tank respectively.

Tank soundings of the bunkers tanks, sludge tanks and other tanks for storing oily residues.

Inspection of the engine room pumping system and technical details about the system, if possible, inspection of the outlet duct overboard.

Details about the oily water separator (OWS).

Investigation as to whether by-passes or flexible pipes could be found at the OWS system or the pumping system.

Details about the quantity discharged.

Position/routing of the ship at time of offence (port of departure, interim port, port of destination).

Copies of the entries from the engine log book, bridge log book and oil record book (copies to be signed by the Captain).

Name and address of the shipping company.

The court at Kiel sentenced the Captain and the Chief Engineer to fines the amount of which is determined taking into consideration the personal and economical circumstances of the culprit. The court usually proceeds on the assumption of an average net income per diem that the culprit obtains or could obtain.

2. Facts similar to Case 1, with the difference, however, that the offence was committed in the area of the German exclusive economic zone of the North Sea and the oil pollution was twice the size of the one described in Case no 1.

The investigation showed the following special features:

Upon questioning, the suspected ship had replied via ultra-shortwave maritime radio service that her next port of call would be Antwerp in Belgium.

Because of a suspected punishable act in the form of water pollution, a request for investigation (contents similar to Case no 1) was addressed by the German Bundeskriminalamt (Federal Criminal Authority) to the Belgian authorities who proceeded correspondingly after the ship's arrival in Antwerp. The analyses of the samples were carried out in Germany.

After termination of the investigations, the Department of Public Prosecution of Hamburg urgently requested a warrant of arrest against the individual culprits under suspicion of having committed the water pollution, i.e. in this case the engineer and the nautical officer on duty, who intentionally had cooperated in the offence. Both persons accused were then out of reach for the German prosecution Authorities.

Following the request, the warrant of arrest was issued by the court at Hamburg under the provision that exemption from custody would be granted against payment of a security deposit amounting to the court fine to be expected. Subsequently, the Department of Public Prosecution of Hamburg initiated a national search.

When approximately two months later the culprits called at a German port they were arrested by the police during the entry control and brought before the judge in charge. After payment of the security deposit both were released.

Both the accused were subsequently sentenced to a Court fine, the amount of the fine taking into account their personal and economical circumstances.

THE NETHERLANDS

Basic principles

The operational procedures in the Netherlands are based on the following document established as guidance for the follow up of reports of illegal discharges: Control Procedures Environmental Offences North Sea. The procedures are included in Chapter 5 below.

The party held responsible for the offence is usually the shipowner. In "regular" cases the imposed fine ranges from 15 000 Dutch guilders to 30 000 Dutch guilders (€ 6,806 - 13,613). The maximum fine is one million Dutch guilders (€ 453,780). Most cases are resolved without a trial because it is possible to settle out of court.

The most important evidence is a witness statement by qualified observers declaring that a ship has been illegally discharging oil. In September 1994 the Dutch Supreme Court accepted that when traces of mineral oil can be observed visually, this means that the oil concentration discharged exceeds 15 ppm (which is an offence). This finding was based on the report "Visibility limits of oil discharges of Annex 1 of MARPOL 73/78". Photographs taken from an aircraft showing the ship and the oil spill are very useful but not necessary. Shipowners have been convicted on the sole basis of witness statements by qualified observers. However, if there is additional proof that the ship has caused the spill this reinforces the case, e.g. when an inspection of the particular ship showed that the oil/water-separator was out of order.

Case

In May 1998 a case was brought before the Court in Amsterdam. A large amount of oil had been found on the coast of Holland and in the North Sea. After thorough investigation including the sampling and analysis of the oil, checking all relevant ships which sailed in Dutch waters at the time and running computer models, the suspected ship was found and convicted to a fine of 300 000 guilders. An appeal is lodged against this verdict.

UNITED KINGDOM

ENGLAND, WALES AND NORTHERN IRELAND

Basic principles

The prosecution must prove beyond all reasonable doubt that the accused committed an offence. The requirements of MARPOL 73/78 have been embodied into English Law by the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996. Under these regulations if any ship fails to comply with the requirements of MARPOL the owner and the Master shall each be guilty of an offence. The matter can be heard before magistrates or in some circumstances before a judge and jury.

Any evidence can be used provided it is presented to the court in the correct format and can be supported by oral testimony from a witness. Such evidence includes aerial photographs, SLAR images, witness statements from aviators and surveyors and evidence in Oil Record Books. Suspects are given the opportunity of formally admitting their guilt which alleviates the need for a trial. Matters can be brought before the magistrates for sentencing in a matter of hours once an investigation has been completed. Importantly the Regulations provide that a ship may be detained if it is suspected of pollution and this provision encourages shipowners to assist the Maritime and Coastguard Agency (MCA) with its enquiries.

The MCA has a dedicated Enforcement Unit tasked to investigate breaches of Merchant Shipping Law. The Enforcement Unit can investigate pollution offences, interview suspects, prepare matters for court, and (as the Prosecuting Surveyor is also a lawyer) present the case to the court. In this way cases can be dealt with extremely swiftly.

Cases

Between January 1997 and March 1999, nine shipowners have been prosecuted. All of the prosecution's evidence has been put before the suspect shipowner before proceedings have been commenced and the evidence has been sufficient in each case for the shipowner to formally admit the offence and plead guilty before the court. Sentences have varied but average about £20,000 for an accidental operational spill.

SCOTLAND

Scotland has a separate legal system to the rest of the UK although the same Regulations apply. Some of the basic principles apply although the criminal proceedings will be managed by the Procurator Fiscal who conducts matters on behalf of the people of Scotland. MARPOL offences are normally seized to the courts local to the headquarters of the MCA in Southampton regardless of the location of the violation. Hence English jurisdiction normally applies.

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