Ship managers are increasingly being targeted by port authorities for
breaches, or suspected breaches, of MARPOL Regulations, reports
International Transport Intermediaries Club (ITIC). Writing in the latest
issue of its newsletter, Intermediary, ITIC warns that although many of
these breaches are due to negligent action by the crew, it is often the ship
manager who faces fines or prosecution as a result.
"MARPOL Regulations govern the amount of oil a ship can legitimately
discharge into the sea. An increasing number of engineers have been accused,
or found guilty, of using the engine room oily water separator improperly,
or bypassing it altogether to discharge oil directly into the sea," says
ITIC. "In other cases, ships records, particularly the Oil Record Book, have
been falsified by the crew."
In some countries, particularly the US, ship managers are regarded as the
operators of the ship. Even where it can be shown that it was the actions of
the crew that violated MARPOL, it is the owner (or the manager) who is
liable and will therefore face a fine. In the event that the ship manager is
targeted by the authorities, he should be able to look to the owner for
funds to deal with fines and costs. However, according to ITIC, owners are
sometimes reluctant to deal with claims involving crew negligence or wilful
default if the crew has been selected or directly employed by the manager.
"It is important, therefore, that ship managers contract using BIMCO Shipman
98 or a contract which is very similar," says the Club. "Managers who have
their own tailor-made contracts are advised to ensure they include all the
necessary provisions including clauses to limit their liability for the
actions of the crew."
Ship managers should also note that P&I cover for deliberate, rather than
accidental, breaches of MARPOL Regulations by crew is only provided subject
to the discretion of the P&I Club's directors. Discretion, however, will not
be sought until the matter is concluded.
Managers facing direct action may feel pressurised into pleading guilty to
help reduce the fine, particularly if the owner has agreed to cover any
costs involved. But beware - admitting responsibility has consequences for
other ships under the same management. According to ITIC, the management
subsidiary of one owning company, who admitted liability, had to agree to
implement a comprehensive compliance programme for 38 other ships under its
management.