Verification of compliance:
Port State Authorities in MARPOL Treaty States ports have an obligation to verify
the compliance of vessels and suppliers with the legislation.
Verification is critical to the success of the treaty and if the treaty fails then
it must be expected that unilateral legislation will be imposed by individual states,
a situation that is not to the advantage of the industry.
In respect of Annex VI regulation 18 this means the Port State Authorities must verify
that the fuel used meets with the requirements and that the correct density and sulphur
content are recorded in the vessel logs.
To do this requires that they send the MARPOL samples for laboratory analysis. Of
course, the analysis will take some days to complete and if that time exceeds the
time the vessel is intending to remain then the vessel may need to be detained until
the results are received.
“Due Cause” for Detention:
Any detention of the vessel imposes a serious financial burden on the operator and
therefore, if the Port State Authority is not to be sued for damages if the fuel
should turn out to be compliant, they must first establish “due cause” to detain
Due cause would seem remarkably difficult to establish. The vessel will obviously
present apparently valid fuel certificates and apparently well kept logs.
One approach suggested is that if the vessel is in violation of some other requirements
that it is also likely to be in violation of the fuel sulphur requirements. Unless
the vessel can be detained for those other reasons then it is arguable that this
is insufficient cause since the fuel certificate is issued by the fuel supplier.
Another approach suggested is to rely on statistical data provided by the testing
agencies. Again, since this is statistical and not specific to the vessel, it is
arguable that this also does not constitute due cause.
The Integrity Principle used for “Due Cause”
While it may take some time to determine the fuel quality through laboratory analysis,
there are laboratory grade instruments available that can be used on board vessels
that will report the density and viscosity of the fuel within five to ten minutes
of introducing the sample.
If the density or the viscosity does not match the fuel certificate values, then
the fuel quality has changed and the certificate is no longer valid.
The certificate is not valid for the fuel; there is no valid certificate for the
fuel and there is no reliable information on the fuel sulphur content. (If it is
a density error that has been found then the vessels logs are inaccurate.)
The failure to validate the fuel certificate means that there is due cause to detain
the vessel while the MARPOL samples are sent for a full laboratory analysis. It may
also justify sampling the bunkers, the settlement tanks, day tanks and the mixing
tank in the high pressure fuel circuits to the engine.
If the density and the viscosity match the fuel certificate values then the fuel
certificate is valid in all respects and for all properties.
It is not necessary for the Port State Authorities to analysis the samples whether
time permits or not as there is good reason to believe the fuel is fully as described
in the fuel certificates, including the sulphur content.
The risk to vessels and suppliers is normally that associated with the risk that
the fuel sulphur is not compliant and this risk may prove to be relatively low even
though the financial penalties may be quite significant.
However, the financial risk to vessels from “due cause” testing is likely to be far
higher even though the penalties will be only the loss of earnings, the charter rates
and port dues. Cumulatively, the frequency with which these penalties may be incurred
may prove very significant. It must also be recognised that by being able to establish
due cause, the risk of discovery that the fuel is not compliant is also increased.
Therefore it is important to know just how probable it is that the Port State Authorities
will find “due cause”.
According to one testing agency over 50% of commercial samples analysed showed a
density error from the original certificate of more than 3kg/m3. That is, a probability
of better than 50% for each fuel that the certificate is invalid and that the vessel
logs are inaccurate. With more than one fuel on board, in the current market, the
chances that a vessel can be detained are almost 100%, especially as similar figures
are also quoted for viscosity errors.
While it is the Integrity principle that makes the risk of due cause detention such
a significant financial risk, it is also Integrity that helps vessels and suppliers
avoid the risk in the first place. To learn more, please visit the other Integrity