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Legal instruments to control harmful anti-fouling systems on ships

Axel Luttenberger

Faculty of Maritime Studies, University of Rijeka, Croatia

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ABSTRACT

The paper deals with harmful environmental effects of organotin compounds used as anti-fouling system on ships. An analysis is made of the International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS-Convention), 2001 as well as the Regulation (EC) No 782/2003 of the European Parliament and the Council of 14 April 2003 on the prohibition of organotin compounds on ships and the Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations. The establishing of legal mechanism is elaborated for preventing the use of noxious substances as means that are used on the ship to control or prevent the attachment of unwanted organisms. In author’s opinion the European environmental policy legislation is a regional environmental needs improvement and not a duplicate of the wording of the AFS-Convention aimed to reducing or eliminating adverse effects on the marine environment.

Key words: legal instruments, anti-fouling systems, organotin compounds, environmental policy

INTRODUCTION

Fouling is an unwanted growth of biological material on a surface immersed in water and anti-fouling paints are used to coat the bottom of the ships to prevent sealife such as algae and molluscs attaching themselves to the hull, thereby slowing down the ship and increasing fuelconsumption. However, studies and investigation have shown that certain anti-fouling system used on ships pose a substantial risk of toxicity and other chronic impacts to ecologically and economically important marine organism and also that human health may be harmed as a result of consumption of affected seafood.

The paper elaborates a legal framework for an action to prohibit or control use of noxious substances as means that are used on the ship to control or prevent the attachment of unwanted organisms through legally binding instrument.

EVOLUTION OF HARMFUL SHIPS´ PAINTS

Anti-fouling paints are used to inhibit growth of marine organisms to maintain the efficiency of vessels and infrastructure.In the early days of sailing ships, lime and later arsenic were used to coat ship’s hulls, until the modern chemical industry developed effective anti-fouling paints issuing metallic compounds.

One of the most effective anti-fouling paints, developed in the 1960s, contains tributylin (TBT), which has been proven to cause deformations in oysters and sex changes in whelks. The harmful environmental effects of organotin-based compounds, such as tributylin (TBT) used in anti-fouling paints on vessel hulls and infrastructure have been recognized for some time [1]. These compounds slowly “leach” into the sea water, killing marine life attached to the ships. Thus the development of environmentally sound, biocide-free alternatives to organotin-containing paints should be supported [2].

Without international action, there would be insufficient impetus for the shipping and marine coatings industries to restrict the use of harmful anti-fouling systems and develop replacement systems. In order to reduce or eliminate potential adverse effect to the marine environment of the anti-fouling paints effective measures should be imposed on shipowners at a global, regional and national level, in concert with the obligation of the States in implementing environmental standards.

LEGAL FRAMEWORK FOR REDUCING OR ELIMINATING ADVERSE EFFECTS ON THE MARINE ENVIRONMENT CAUSED BY ANTI-FOULING SYSTEMS

The Agenda 21 – Report of the United Nations Conference on the Environment and Development, 1992

Chapter 17 entitled Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed sea, and coastal areas and the protection, rational use and development of their living resources in the headings on Prevention, reduction and control of degradation of the marine environment from sea based activities call upon States to take appropriate measures to reduce water pollution caused by organotin compounds used in anti-fouling paints [3].

The International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), 2001

The International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS) is a framework convention allowing the prohibition of harmful anti-fouling system used on ships with well-defined procedures to prevent the potential use of other harmful substances in anti-fouling systems having due regard to the precautionary principle expressed in the Rio Declaration on Environment and Development.

Anti-fouling system means a coating, paint, surface treatment, surface or device that is used on a ship to control or prevent attachment of unwanted organism.The AFS Convention shall apply to ships entitled to flag of the Party, ships not entitled to fly the flag of the Party, but which operate under the authority of the Party and ships that enter a port, shipyard, or offshore terminal of a Party. This Convention shall not apply to any warship, naval auxiliary or other ships owed or operated by a Party and used for a time being, only for government non-commercial services. Nevertheless, each Party shall ensure that such ships act in a manner consistent, so far as reasonable and practicable, within this Convention. Under the terms of the AFS Convention ships of above 400 gross tonnage and above engaged in international voyages - excluding fixed or floating platforms, floating storage units (FSUs) andfloating production storage and off-loadingunits (FPSOs) - will be required to undergo initial survey before the ship is put into service or before the International Anti-fouling System Certificate is issued for the first time, and a survey when the anti-fouling systemis rechanged or replaced. Ships of 24 metres or more length but less than 400 gross tonnage engaged in international voyages (excluding fixed or floating platforms, Fuss and Pesos) will have to carry the Declaration on Anti-fouling Systems signed by the owner or authorised agent. The Declaration will have to be accompanied by appropriate documentation such as paint receipt or contract invoice [4].

By an effective date of 1 January 2003, according to the wording of AFS Convention, all ships shall not apply organotic compounds that act as biocides in anti-fouling systems, namely TBT-based anti-fouling paints. In addition, by 1 January 2008 ships either shall not bear such compounds on their hulls or external parts or surface or shall bear a coating that forms a barrier to such compounds leaching from the underlying non-complaint anti-fouling systems. Waste material from the application or removal of TBT-based paints will be controlled in a safe an environmentally sound manner.

The AFS Convention was adopted on 5 October 2001 and shall enter into force twelve months after the date on which not less than 25 States, the combined merchant fleets of which constituting not less than 25% of the gross tonnage of the worlds´ merchant shipping, have either signed it without reservation as to ratification, acceptance or approval, or have deposited the requisite instrument of ratification, acceptance, approval or accession. Consequently, the AFS Convention entered into force on 17 September 2008.

The Convention provides for appropriate measures to promote and facilitate scientific and technical research and provides for the exchange of communications and exchange of information between parties to the AFS Conventions. Also it deals with the inspections of the ships and detention for violations.

Annex 1 of the AFS Convention stipulates Controls on anti-fouling system, Annex 2 is entitled Requiredelements for initial proposal, while Annex 3 name is Required elements of comprehensive proposal. Annex 4 entitled Surveys and certification requirements for anti-fouling system has a model form for the International Anti-fouling Certificate and a model form of Record of Anti-fouling systems.

Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and the use of certain dangerous substances and preparations

This Directive is concerned with restricting the market use in the MemberStates of the Community of dangerous substances [5, 6] and preparations listed in the Annex. Member States shall take all necessary measures to ensure that the dangerous substances and preparations listed in the Annex may only be placed on the market or used subject to the conditions specified therein, with the exclusion that the restriction should not apply to marketing and use for research and development or analysis purposes[7].

Regulation (EC) No 782/2003 of the European Parliament and the Council of 14 April 2003 on the prohibition of organotin compounds on ships

The rationale of the Regulation is to reduce or eliminate adverse effects on the marine environment and human health caused by organitincompounds which act as active biocides in anti-fouling systems used in ships flying the flag of, or operating under the authority of, a Member State, and on ships, regardless of the flag they fly, sailing to or from ports or the Member States [8].

The regulation introduces a survey and certification system for ships flying the flag of the MemberState. It stipulates that ships of 400 gross tonnages and above must be surveyed, irrespective of the voyage and that ships of 24 metres or more in length, but less than 400 gross tonnage, must simply carry a declaration of compliance with the AFS Convention. No particular survey or certificate is specified in the regulation to avoid overburdening the administration of the Member States. Ultimately, no survey or certification is envisaged for ships of less than 24 metres in length, i.e. pleasure craft and fishing boats. The act regulates the prohibition of the application of organotin compounds which act as biocides, prohibition of the bearing of organotin compounds which act as biocides, survey and certification, port State control and the evaluation method on the implementation and new developments.

Regulation (EC) No 536/2008of 13 June 2009 giving effect to Article 6(3) and Article 7 of Regulation (EC) No 782/2003 of the European Parliament and the Council of 14 April 2003 on the prohibition of organotin compounds on ships and amending that Regulation

As aforementioned, the Regulation (EC) No 782/2003 requires the Commission to adopt the measures in order to give effect to that Regulation if the AFS Convention, adopted on 5 October 2001, has not entered into force by 1 January 2001 and – at that date – the AFS Convention has not entered into force.

The function of Commission Regulation (EC) No 536/2008 of 13 June 2008 is to establish measures in order to allow ships flying the flag of a third State that enter a port or the offshore terminal of a Member States to demonstrate their compliance with Regulation (EC) No 782/2003 on the prohibition of the bearing of organotin compounds which act as biocides and establish procedures for control by port State within the Community as well as to amend the references to the AFS Statement of Compliance in Regulation (EC) No 782/2003 and Annex I to that Regulation. [9].

THE ENFORCEMENT FOR EFFECTIVE AND ENVIRONMENTALY SAFE ANTI-FOULING SYSTEMS

The legal instruments dealing with harmful ship’s paint are one of the series of measures to prevent and control pollution caused by ships and to mitigate the effects of any damage that may occur. Also it is a confirmation of a determination of States and industry to reduce, to the barest minimum, the impact that shipping may have on our fragile marine environment.

The AFS Convention stipulates the effective dates for organotin compounds which act as biocides in antifouling system on 1 January 2003 and organotin compounds which act as biocides in anti-fouling system on 1 January 2008 without linkage to entry into force of the AFS Convention raising the question of legality of said provisions.

In our opinion, setting the date without linkage to the entry into force is not illegal. That is, in the case that a Convention comes into the force after the mentioned effective date thru legal effects of the effective date shall be suspended until the date of entry into the force of the Convention. Before entry into force of the Convention the Convention is not applying to foreign ships calling to port, but may apply to a national depending on the national legal system, without expectation that International certificates should be recognized until the date of the entry into force of the Convention.

The European Union is environmentallycommitted and – in line with the AFS Convention - at the regional level the Community is enacting legal instruments as to impose on shipowners and Member States, directly and within a short time frame, precise requirements to be implemented at the same time and the same manner throughout the Community. Regulation (EC) No 782/2003 on the prohibition of organotin compounds on ships was amended by the Regulation (EC) No 536/2008 due to the fact that – at that time - the AFS Convention was not into force.

The AFS Convention banning the use of organotins and other harmful substances in anti-fouling substances entered into force on 17 September 2008. As of 31 March 2009 there are 37 contracting States representing 66,32 % of the world tonnage.

In implementing the AFS Convention, Guidelines for Brief Sampling of Anti-fouling System of Ships provide procedure for sampling to support the effectiveness of survey and inspection as to ensure that ships´ anti-fouling comply with the AFS Convention also elaborating personnel safety when sampling, sampling methods with technical aspects, thresholds and tolerance range, definition of compliance with the documentation and recording of information [10]. Inaddition, Guidelines for Inspection of Anti-fouling Systems on Ships stipulates the process for conducting the inspections, particularly the inspection of International Anti-fouling system Certificate or Declaration on Anti-fouling System, brief sampling of Anti-fouling System on ships, a well as port State action in response to alleged contraventions with responsibility of aport State to notify the contravention to the flag State. [11].

For a particularState not beingparty of the treaty means lowering internationally adopted standards and incurring an additional cost as a result of the need to have proper survey documentation confirming compliance with the Convention issued only by administrations that have adopted the Convention.

CONCLUSIONS

An effective anti-fouling system can save a shipowner money in direct fuel savings by keeping the hull free of fouling organism and can extend dry-docked interval with increased vessel availability since it does not have to spend so much time in dry docking. The necessitate to continue to develop anti-fouling system which is effective and environmentally safe and to promote the substitution of harmful systems by less harmful systems and preferably harmless system is an important challenge of the shipping industry.

In author’s opinion the European environmental policy legislation is a regional environmental needs improvement and not a duplicate of the AFS-Convention aimed to reducing or eliminating adverse effects on the marine environment

Bearing in mind the State reliance on international maritime industry, it is important to embrace internationally consistent measures on harmful anti-fouling systems on ships aimed to fulfil the goal of adequate protection marine environment and human health. The significant fraction of a new approach to a protection of the sea is a sustainable anti-fouling system supported by international and regional agreements and a proactive approach of States.

REFERENCES

  1. IMO Resolution MEPC.46 (30) adopted on 16 November 1990 Measures to control potential adverse impacts associated with the use of tributylin tin compounds in anti-fouling paints, MEPC 30/24
  2. IMO Resolution A.895 (21) adopted on 25 November 1999 Anti-fouling systems used on ships, A 21/Res.895, 4 February 2000
  3. United Nations, Report of the United Nations Conference on the Environment and Development Chapter 17, A/COMF.156/26 (Vol.II) 13 August 1992
  4. The International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), 2001, AFS/CONF/26, 18 October 2001
  5. Resolution portant avis du Parlement Europeen sur la preposition de la Commission des Communautes Europeennes au Conseil relative a une Directive concernant la rapprochement des dispositions sur la marche et de l’emploi de certaines substances et preparations dangereuses, OJ No C 60, 13.3.1975
  6. Opinion of the Economic and Social Committee on the proposal for a Council Directive on the approximation of the laws of the Member States restricting the use of certain dangerous substances and preparations, OJ No C 16, 23.1.1975
  7. Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and the use of certain dangerous substances and preparations OJ L 262 of 27.9.1976
  8. Regulation (EC) No 782/2003 of the European Parliament and the Council of 14 April 2003 on the prohibition of organotin compounds on ships OJ L 115/1 of 9.5.2003
  9. Regulation (EC) No 536/2008 of 13 June 2009 giving effect to Article 6(3) and Article 7 of Regulation (EC) No 782/2003 of the European Parliament and the Council of 14 April 2003 on the prohibition of organotin compounds on ships and amending that Regulation OJ L 156/10 of 14.6.2009
  10. IMO Resolution MEPC104(49) adopted 18 July 2003 Guidelines for Brief Sampling of Anti-fouling System of Ships, MEPC 49/22/Add.1
  11. IMO Resolution MEPC105(49) adopted 18 July 2003 Guidelines for Inspection of Anti-fouling Systems on Ships, MEPC 49/22/Add.1