MAJ prepares leaders for international pollution legislation
Last week, the Maritime Authority of Jamaica (MAJ) engaged shipping industry stakeholders, including vessel operators and users, members of the environment, transportation, and fishing sectors, in a discussion on the upcoming Shipping (Pollution Prevention, Response, Liability and Compensation) Bill, 2020. The bill addresses liability and compensation for pollution damage, as well as the obligations of ships and terminal operators to respond to pollution incidents.
The MAJ plays a key role in ensuring that international marine environmental protection conventions are incorporated into local legislation.
In preparation for the implementation of the bill, MAJ hosted a half-day sensitisation seminar to outline and clarify the provisions of the bill that affect private and public stakeholders in the shipping industry, and to receive their feedback.
The presentation made by Bertrand Smith, director of legal affairs at the MAJ, covered the international instruments incorporated into the bill. One such instrument is the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972. It seeks to protect the marine environment from all sources of pollution and to prevent, reduce and, where practicable, eliminate pollution caused by dumping or incineration at sea of wastes and other matter. Article 4 of the 1996 protocol introduces what is known as the ‘precautionary approach’ as a general obligation. This requires that appropriate preventive measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm, even when there is no conclusive evidence to prove a causal relation between inputs and their effects. The article also states that the polluter should, in principle, bear the cost of pollution, and it emphasises that contracting parties should ensure that the protocol should not simply result in pollution being transferred from one part of the environment to another.
The 1972 convention permits dumping to be carried out provided certain conditions are met, according to the hazards to the marine environment presented by the materials themselves. The 1972 convention includes a ‘blacklist’ of materials which may not be dumped at all. However, the 1996 Protocol is more restrictive. It states (in Article 4) that contracting parties shall prohibit the dumping of any wastes or other matter with the exception of those listed (in Annex 1 to the Protocol). These materials include:
1. Dredged material;
2. Sewage sludge;
3. Fish waste, or material resulting from industrial fish processing operations;
4. Vessels and platforms or other man-made structures at sea;
5. Inert, inorganic geological material;
6. Organic material of natural origin;
7. Bulky items primarily comprising iron, steel, concrete and similar harmless materials, for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping.
Sometime after that convention was introduced, in July 1989, a conference of leading industrial nations in Paris called upon the International Maritime Organization (IMO) to develop further measures to prevent pollution from ships. This call was endorsed by the IMO Assembly in November of the same year and work began on a draft convention aimed at providing a global framework for international cooperation in combating major incidents or threats of marine pollution.
Parties to the International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC) are required to establish measures for dealing with pollution incidents, either nationally or in cooperation with other countries.
Ships are required to carry a shipboard oil pollution emergency plan. Operators of offshore units under the jurisdiction of parties are also required to have oil pollution emergency plans or similar arrangements which must be coordinated with national systems for responding promptly and effectively to oil pollution incidents.
Ships are required to report incidents of pollution to coastal authorities, and the convention details the actions that are then to be taken. The convention calls for the establishment of stockpiles of oil spill combating equipment, the holding of oil-spill combatting exercises and the development of detailed plans for dealing with pollution incidents.
Parties to the convention are required to provide assistance to others in the event of a pollution emergency and provision is made for the reimbursement of any assistance provided. Part three of the proposed legislation incorporates this instrument.
Another instrument incorporated into the proposed bill is the Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC-HNS Protocol). Parties to the OPRC-HNS Protocol are required to establish measures for dealing with pollution incidents, either nationally or in co-operation with other countries. Ships are required to carry a shipboard pollution emergency plan to deal specifically with incidents involving hazardous and noxious substances. The OPRC-HNS Protocol ensures that ships carrying hazardous and noxious substances are covered by preparedness and response regimes similar to those already in existence for oil incidents.
Hazardous and noxious substances
For the purposes of the HNS Protocol, a hazardous and noxious substance is defined as any substance other than oil which, if introduced into the marine environment is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.
Each of these instruments is covered in a separate part of the proposed bill.
Attendees to this first consultation included National Environment and Planning Agency, PETROJAM, JISCO Alpart Jamaica, Shipping Association of Jamaica, Port Authority of Jamaica, National Fisheries Authority, UC RUSAL Alumina Jamaica Limited, Jamaica Defence Force Coast Guard, West Indies Petroleum, JAMALCO, and the Ministry of Transport and Mining.
The Maritime Authority will be conducting additional consultations with other relevant public and private sector stakeholders to allow further discussion on the bill.