…An overview and critique
The Maritime Pollution Act 2016 (Act 932) was passed by Parliament in 2016. The Act received Presidential Assent on 11th October 2016 and was gazetted on the same day. The Act implements in Ghana some provisions of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) and the following International Maritime Organization (IMO) Conventions/Protocols on prevention of maritime pollution and civil liability and compensation, to wit:
- International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties and its Protocol of 1973;
- International Convention for the Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997 (MARPOL);
- International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC) – 1990
- 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage 1969; and
- 1992 Protocol to the International Convention on the Establishment of International Fund for Compensation for Oil Pollution Damage (1971).
Before the passage of the Maritime Pollution Act in 2016, the operative legislation on
maritime pollution in Ghana was the Oil in Navigable Waters Act 1964 (Act 23) which
implemented in Ghana, some aspects of the Oil pol Convention of 1954.
Before dealing with the provisions and critique of the Act, the present writer wishes to
pose a question.
Why does Ghana need a Maritime Pollution Act?
Ghana needs a Maritime Pollution Act because the country has joined the ranks of oil
exporting countries and one pollution damage by a tanker operating within the
maritime jurisdiction of Ghana will have catastrophic effect in the country.
Pollution by ships can be classified as accidental pollution and operational pollution.
Ships, always, used waters on which they navigated to dispose of their waste.
In addition, in the past, chemical and oil tankers washed out their dirty tanks at sea and also discharge their dirty ballast water.
Ship source pollution may damage finishing stocks and various other forms of marine life. It also affects the tourist industries of countries. Consequently, it is absolutely important that Ghana takes action to reduce and control ship source pollution.
Pollution damage by ships such as the “Torrey Canyon”, the “Annoco Cadiz”, the “Exxon Valdez”, “the Sea Empress”, “the Prestige”, “the Erika” and “the Braer” are so well known in the shipping industry to call for any further elucidation.
It is therefore absolutely vital, from the present writer’s perspective, that Ghana has in place a very up to date legislation on maritime pollution.
When these preliminary observations, the present writer will now proceed to give an overview and critique of the Maritime Pollution Act 2016 hereinafter referred to as “the Act”.
The Act, as already observed, was passed in 2016. It has five Parts made up of Two hundred and fifty-three sections.
Part One deals with Application and Responsibilities of the Ghana Maritime Authority.
Part Two deals with Intervention on the High Seas and implements in Ghana the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 and its Protocol of 1973.
Part Three deals with Prevention of Maritime Pollution by Dumping of Wastes and Other Matter at Sea and implements in Ghana Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 and the London Protocol of 1996,
Part Four with the general caption, “Prevention of Pollution from ships” has eight Chapters.
Chapter One deals with General provisions.
Chapter Two deals with Prevention of Pollution by Oil and implements in Ghana the provisions of MARPOL Annex 1.
Chapter Three which is captioned “Prevention of Pollution by Noxious Liquid Substances in Bulk” should have read “Control of Pollution by Noxious Liquid Substances in Bulk” and implements in Ghana, the provisions of MARPOL Annex II.
Chapter Four captioned Prevention of Pollution by Harmful Substances carried in Packaged Form implements in Ghana Annex III of MARPOL.
Chapter Five captioned Prevention of Pollution by Sewage from Ships implements in Ghana Annex IV of MARPOL.
Chapter Six captioned the Prevention of Pollution by Garbage and implements in Ghana Annex V of MARPOL.
Chapter Seven captioned Prevention of Air Pollution from Ships implements in Ghana Annex VI of MARPOL.
Chapter Eight captioned Oil Pollution Preparedness, Response and Co-operation is really out of place because the Convention it seeks to implement in Ghana is the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC) 1990 is not part of MARPOL and accordingly it should not, with the greatest respect, have been lumped together with the six Annexes of MARPOL.
The present writer will venture to suggest that it should have been a separate Part.
Part Five of the Act with the general caption “Liability and Compensation for Pollution Damage” is divided into four Chapters:
Chapter one captioned “Liability for Oil Pollution” implements in Ghana the 1992 Protocol on Civil Liability for Oil Pollution Damage.
Chapter two captioned “International Oil Pollution Compensation Fund” implements in Ghana the 1992 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund 1992).
Chapter three captioned “Enforcement” is out of place because the general heading under Part Five is “Liability and Compensation for Pollution Damage” and by any stretch of imagination “Enforcement” cannot be subsumed under Liability and Compensation for Pollution Damage.
The above observation is equally applicable to Chapter Four captioned “Miscellaneous”.
It is the respectful submission of the present writer that Chapters Three and Four of Part Five should have different Parts to the Act and not lumped together with Part Five of the Act which has a general caption “Liability and Compensation for Pollution Damage’’.
In addition to the two hundred and fifty-three sections of the Act, the Act has Twenty-one Schedules.
Having dealt with the general Parts and Chapters of the Act and before proceeding with the specific provisions of the Parts it behoves the present writer to give a resumé of events leading to the passage of the Act in 2016. In this connection, the present writer wants to observe that a layman’s draft of the Bill commenced during President Kuffuour’s administration when Prof. Ekumfi Ameyaw was the Minister for Ports and Harbours. The Government of Ghana then, through the Ghana Maritime Authority requested IMO for technical assistance for the drafting of a Maritime Pollution Bill. IMO’s Technical Co-operation Division acceded to the request and identified a Consultant to undertake the mammoth task of drafting a Maritime Pollution Bill for Ghana. The layman’s draft as Consultant’s draft is known in legal circles was submitted to IMO and after the requisite clearance by IMO, the draft Bill was submitted to Ghana Maritime Authority. After interminable “ping pongs” the draft Bill was finalised by Attorney General’s Department. After complying with the requisite constitutional requirements, the Bill was enacted in 2016.
It will not be out of place for the present writer to observe that in between the period the Consultant completed the layman’s draft and the passage of the Bill by Parliament, some amendments had been made to some of the Annexes of MARPOL in view of developments in the shipping industry and technological advancement. Consequently, some aspects of the Bill implementing the provisions of MARPOL in Ghana were already out of date when the Bill was submitted to Parliament for enactment. Possibly, the sponsoring Ministry, the Ministry of Transport in its wisdom, felt that the Bill in that form should be submitted to Parliament even though deficient in some respects for enactment because with all its deficiencies, the Bill represented a vast improvement on the existing legal regime in Ghana on maritime pollution, to wit, the Oil in Navigable Waters Act of 1964 (ACT 23) which implemented in Ghana some aspects of the Oil pol Convention of 1954.
Having dealt with the general overview of the Act, the present writer will now proceed with specific provisions of the Act
Part One of the Act has provisions on Application, Measures related to seaworthiness of vessels to prevent pollution, Contravention by vessels within the territorial sea or exclusive economic zone amongst others.
Part Two deals with Intervention of the High Seas and clothes the Minister with insignia of authority to intervene on the High Seas in cases that are necessary to prevent, mitigate or eliminate grave and immerit danger to the coastline or related interest from pollution or threat of pollution of the sea by oil or substances other than oil on the occurrence of a maritime casualty or acts related to a maritime casualty likely to result in harmful consequences. There are provisions in the Part on Nomination of experts, Compensation and Dispute Settlement.
Part Three on Prevention of Marine Pollution by Dumping of Wastes and other Matter at Sea. The Part has provisions on Prohibition on dumping of waste, Dumping permits, Prohibition of incineration at sea, Prohibition of export of waste and Exceptions in cases of force majeure.
Part Four has eight Chapters.
Chapter one deals inter alia, with General Provisions. It has provisions on Contraventions, Certificates and special rules on inspection on ships, Undue delay to ships. Technical co-operation and Dispute Settlement.
Chapter Two deals with Prevention of Pollution by Oil.
As already indicated above it implements in Ghana MARPOL Annex 1. The Chapter has provisions on Surveys of ships. Certificates issued under the Chapter, Duration and validity of certificate issued, Control of discharge, provision of reception facilities.
Oil Record Book, Special requirements for drilling rigs, other platforms and offshore installations, Shipboard oil pollution emergency plan and offences and interpretation.
Chapter Three as already indicated implemented the provisions of MARPOL Annex II in Ghana should read “Control and NOT Prevention of Pollution by Noxious Liquid Substances’’ as already observed. The Chapter has provisions on Categorisation of Noxious Liquid Substances Provisional assessment and categorisation of substances, Surveys, Cargo record book, Reception facility for noxious liquid substances.
Nominated surveyors and recognised organizations, Noxious Liquid Substance Certificate, Form of International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk, Duration and Validity of Certificates. Shipboard marine pollution emergency plan for noxious liquid substances.
Chapter Four deals with Prevention of Pollution by Harmful Substances carried by sea in packaged form. As already indicated this Chapter implements in Ghana MARPOL Annex III. It has provisions on Parking, Marking and Labelling, Documentation, Quantity Limitations, Stowage and Offences.
Chapter Five of Part Four, as already indicated, implemented in Ghana MARPOL Annex IV. It deals with prevention of pollution by Sewage from ships. The Chapter has provisions on Surveys, Issue of International Sewage Pollution Prevention Certificate, Form of International Sewage Pollution Prevention Certificate, Duration or validity of International Sewage Pollution Prevention Certificate, Discharge controls, Sewage reception facilities and Standard discharge connections.
Chapter Six deals with Prevention of Pollution by Garbage from Ships.
It has provisions on Special areas, Garbage reception facilities, Garbage management plan, Garbage record book, Disposal of specified garbage outside special areas; Offences and Regulations.
It must be pointed out that the latest Edition of MARPOL compiled by IMO the word “discharge” and not “disposal” is used and since disposal and discharge cannot be used interchangeably the Chapter must be revised to reflect the current terminology in use.
Chapter Seven deals with Prevention of Air Pollution from Ships. It has provisions on surveys and inspection, issue of International Air Pollution Prevention Certificate. Form of International Air Pollution Prevention Certificate, Duration and period of validity Certificate, Inspection of reception facility and offences. It must be stressed that this Chapter which implements in Ghana MARPOL Annex VI has a number of defects. No mention is made of International Energy Efficiency Certificate, Form of International Energy Efficiency Certificate, Duration of International Energy Certificate, fuel for oil availability, Attained Energy, Efficiency Design Index (attained EEDI), Required EEDI Ship Energy Efficiency Management Plan (SEMP).
As already indicated by the present writer, the Act received a Presidential Assent on 11th October 2016. It is pertinent to observe that by Resolution of MEPC (70) adopted on October 28 2016, amendments were made to Annex VI of MARPOL which the Act implements in Ghana by Chapter Seven of Part Four. Surely, those amendments are not reflected in the Act because the Act received Presidential assent before the amendments were made. It therefore follows that Chapter seven of Part Four must be revisited to keep pace with developments at IMO.
Chapter Eight implements in Ghana, as already stated, the International Convention on Oil Pollution Preparedness, Response and Co-operation 1990. The Chapter has provision on Oil pollution emergency plans, Action on receipt of oil pollution report, Pollution report procedures, National and regional system for preparedness and response. International co-operation in pollution response. Technical co-operation and multilateral arrangements. As already observed, this Chapter should NOT have been lumped together with the various Annexes of MARPOL.
Part Five deals with Liability and Co-operation for Pollution Damage. It has Four Chapters. Chapter One has provisions on Meaning of “Owner” in relation to pollution damage, for oil pollution by tankers, Liability for oil pollution by other ships; Restriction of liability for oil pollution, Limitations of liability under section 195; Restriction on enforcement after establishment of limitation fund, Limitation fund established outside Ghana, Extinguishment of claims, Compulsory insurance against liability for pollution, Right of third parties against insurers, Jurisdiction of Ghanaian courts and registration of foreign judgment. Government ships and Interpretation.
Chapter Two deals with International Oil Pollution Compensation Fund 1992 and has provisions of meaning of discharge or escape of oil, Contributions by oil importers, Power to obtain information, Liability of the Fund, Extinguishment of Claims, Subrogation and Supplementary provisions as to proceedings involving the Fund and Interpretation.
Chapter Three captioned Enforcement has provision on Restriction on jurisdiction over offence committed outside the country’s limits and suspension of proceedings at the request of flag state.
Chapter Four captioned Miscellaneous has provisions on a lost of matters including but not limited to the following. Duty to report discharge of oil into waters of a harbour, Discharge of oil into internal waters of Ghana, other than waters of a harbour, Insurance for operators of offshore installation or storage facility; Discharge of oil from pipelines as a result of exploration or exploitation, Restrictions on transfer of oil in a harbour or port, Presidential directives on oil or other chemical spill response, Removal and disposal of offshore installation, Double hulls, Establishment of Technical Committee Functions and Technical Committee and Tenure of Technical Committee.
Regulations to be made by the Minister by legislative instrument to prescribe a number of matters including the giving of effect to any Convention adopted by IMO on Marine Pollution and Interpretation.
The present writer wishes to observe that issues covered by he Chapter on Miscellaneous are of utmost importance.
“Special areas” have not been specifically defined in Chapter Two of Part Four of the Act. It is the respectful submission of the present writer that the general definition of special area in section 250 of the Act which deals with “Interpretation” will not suffice. “Special areas” in Chapter Two of the Part Four of the Act should have been comprehensively defined in accordance with Annex I of MARPOL which the Act implements in Ghana. With regard to Prevention of Pollution Garbage which in Ghana implements Annex V of MARPOL “Special areas” have been appropriately defined in accordance with the Annex and the present writer does not appreciate why the same was not done in respect of Part Four, Chapter Two of the Act which implements MARPOL Annex I. The importance of this definition cannot be over-emphasised. Shipping is international and it is absolutely vital that our municipal laws which implement treaty provisions must conform strictly with the provisions of the treaty, the legislation is implementing.
Almost four years down the line since the enactment of the Act, Regulations under the Act are yet to be drafted to compliment the primary legislation. It is absolutely vital that these Regulations are drafted.
Since the layman’s draft of the Bill, three IMO Conventions which impinge on marine pollution have entered into force. They are the International Convention for the Control and Management of Ship Ballast Water and Sediments 2004, The International Convention on the Control of Harmful Anti-Fouling Systems on Ships 2001 and Convention on Civil Liability for Bunker Oil Pollution Damage 2001. This Convention though not strictly a Marine Pollution Convention but a Liability Convention must be implemented in Ghana together with the two other Conventions referred to above.
Section 249 (C) of the Act enjoins the Minister to give effect to any Convention adopted by IMO on Marine Pollution. It can be argued with some degree of plausibility that pollution damage can result from bunkering. The three Conventions can therefore be implemented in Ghana by subordinate legislation.
It is the present writer’s respectful submission that the First Schedule of the Act must be comprehensively revised in the light of Resolution MEPC 100 (48) as amended by Resolution MEPC 165 (56). It is pertinent to observe that the acronym MEPC stands for Marine Environment Protection Committee, a Committee of IMO dedicated to the protection of marine environment.
There are no provisions in the Schedule for the Form of International Energy Efficiency Certificate, Supplement to International Energy Efficiency Certificate and this must be appropriately addressed.
Now a word about the International Convention for the Prevention of Pollution from Ship, 1973 as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997 (MARPOL).
MARPOL is one of the key Conventions of IMO – a Specialised Agency of UN responsible for shipping. It is one of the Conventions of IMO which embodies the “no more favourable treatment clause” devised by IMO. It is trite law that treaties/Conventions and Protocols only bind the parties thereto aptly expressed by the Latin Maxim “pacta tertiis nec nocent nec prosunt”. IMO has, in a way, circumvented this time honoured maxim in the Law of Treaties by the introduction of the “no more favourable treatment clause” which means that if a ship is registered in a State which is not a party to MARPOL trades to a port or offshore terminal of a state party to MARPOL, it will not lie in the mouth of the master of the ship, the shipowner and a bareboat charterer, to contend that the State where the ship is registered is not a party to MARPOL and consequently, the provisions of MARPOL are not applicable to the ship. A Port State Control Officer of the State party to MARPOL can detain the ship, if on examination he is satisfied that the construction of the ship and its equipment do not conform to the provisions of MARPOL.
This is a very effective mechanism devised by IMO to ensure that Shipowners comply with the provisions of the key IMO Conventions/Protocols their registering States not being parties to such Conventions/Protocols notwithstanding.
Over the years, the present writer has been racking his brains as to whether the provisions of MARPOL should be included in a primary legislation on Maritime Pollution. The raison d’être for this observation is that various Annexes of MARPOL are often amended by IMO from time to time to keep pace with developments in the shipping industry and technological changes.
It is a matter of notoriety that it takes quite a while to amend a primary legislation because of pressures on parliamentary legislative timetable.
On the other hand, subordinate legislation in Ghana can be adopted without much hassle pursuant to Article 11(7) of the Constitution of Republic of Ghana 1992. As the country’s pollution legislation must keep pace with developments at IMO, it is the respectful submission of the present writer that to ensure that our laws on maritime pollution, which MARPOL plays a no mean role, are up to date, it will be best to implement the six Annexes of MARPOL in a subordinate legislation because of the reasons adduced above.
This can be done by giving the Minister the requisite delegated power in a primary legislation on a Maritime Pollution. The present writer appreciates that this is a herculean task but with determination and political will, it can be done.
The Writer is a Legal Practitioner who was called to the Bar in October 1969 Currently, he lectures in Company and Commercial Practice at the GIMPA campus of the Ghana Law School.
Email: [email protected]