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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 the vessel.

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or the viscosity does not match the fuel certificate values, then the fuel quality has changed and the certificate is no longer valid.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.

Conversely:

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.

Financial Risks:

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 Pages.

Multi Lateral Environmental Agreements:

MARPOL is an MEA and as such the success of MARPOL depends on a number of factors. Principal among them is verification of compliance.

The Integrity Principal has a role to play in compliance monitoring and verification by Port State Authorities. They have a duty to verify that vessels are fully compliant with the legislation. This might be interpreted as simply checking that the fuel has a sulphur content that is at or below the permitted limit. However, it might also be expected that sooner or later, Port State Authorities will also act to verify that  the vessels are logging the exact density and exact sulphur content as required by the treaty.

An important aspect of any legislation is that it must be able to measure the object of the legislation. In this case, the amounts of sulphur oxide released, when, where and by whom.. This is inferred from the exact amount of sulphur burned in the fuel and is calculated from the fuel flow meter readings, the fuel density and the fuel sulphur content.