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SPANISH MARITIME AUTHORITIES’ TOUGH RESPONSE TO POLLUTION.

The Spanish authorities are continuing their strict enforcement policy of pollution matters by requesting large security guarantees for seemingly minor pollution incidents. This policy comes in response to the mid-November 2002 disaster when the Prestige tanker cracked off Spain’s coast, spilling millions of gallons of fuel oil, much of which found its way onto Atlantic and Cantabrian beaches. High profile accidents are only part of the problem. Most oil pollutions are the result of deliberate discharges, such as tank-cleaning operations and waste oil disposal or discharge of foreign liquid substances such as ballast water. Nineteen of the thirty-six samples of fuel oil collected from the beaches did not come from the mv Prestige but from vessels’ tank cleaning. There is a growing grass-roots movement of environmental activists that is working hard to increase awareness of pollution in Spain and make sure that operators are kept in line.

The Spanish Transport Ministry (Ministerio de Fomento) maintains, together with other four EU countries, special security measures to detect illegal dumping at sea, where various helicopters, tug vessels and quick boats, apart from military units and autonomous region units, participate. Special sensitive areas are La Coruña in Northern Spain and Algeciras in Southern Spain, where tightened surveillance and pollution control regime were recently launched.

Illegal discharge, breach of the law or lack of immediate communication of an escape can be easily typified as an administrative infringement contemplated in Spanish Ports Law under infringements related to marine pollution. Despite the fact that this law will be modified in January 2004, its chapter of administrative infringements will remain basically the same. The sanction against the vessel depends on the type of infringement:

a) Small infringement, fines up to Euro 60,101

b) Severe infringement, fines up to Euro 601,010.21

c) Very severe infringement. fines up to Euro 3,005,060.05

The sanctioning proceedings will be launched against shipowners, managers or operators, Master and P&I Club / insurer. Despite the fact that our law states they are the responsible parties in pollution matters, the principle of guilt is applicable in the sanctioning proceedings as the sanctioning regime is similar to the criminal regime and objectivity is not admitted. Each party will have to appear in the sanctioning proceedings by means of the necessary powers of attorney on a case-by-case basis designating a representative to appear on their behalf. As regards notification, our High Court has established that the lack of due notification to the party against whom the proceedings are launched, can mean the nullity of the notification. In this sense, owners can be notified through the Master and the P&I insurer at their domicile or through the party they designate on a case by case basis.

Following pollution incidents, the vessel will be usually detained by the Harbour Master as a precautionary measure to guarantee the payment of the possible sanction. A bond will have to be provided to release the vessel and also to cover the clean-up costs or the potential clean-up costs. Following a 1997 Spanish law, Club LOUs are not acceptable. The type of guarantees that are acceptable are cash money, letters of guarantee issued by banks, credit insurance companies and treasury bonds. The law also provides for the required text for each different type of guarantee. A good knowledge of the procedure to be followed before the various Spanish authorities involved, will mean a small delay to vessel. A bad knowledge of the previous will mean an avoidable longer delay.

Although minimum guarantees requested following pollution incidents have been of Euro 120,000 in most cases, Spain has lately been requesting bonds of Euro 600,000 when the pollution is understood to be a severe infringement. The amount of the security guarantee depends on the criteria of the competent authority and is determined by the severity of the pollution and by whether the area is a sensitive one.

 

Some illustrative facts throughout this year served up by the Spanish government’s merchant shipping directorate in Madrid are as follows:

• A Dutch-operated vessel was detected by a Spanish salvage helicopter to be illegally discharging fuel whilst she was passing Finisterre (Northern Spain). She was detained three months later during her call to Almeria and was not released until she had deposited Euro 600,000.
• Recently a vessel with Marshall Island flag and Cyprus managers was detained following a PSC inspection where deficiencies in the equipment of prevention of pollution was detected and a security guarantee of Euro 600,000 was requested.
• Following a spillage of 1,000 litres of fuel a guarantee of Euro 600,000 was requested to a Danish flag vessel.
• A Spanish vessel had an overspill of 200 litres during bunkering operations and a guarantee of Euro 600,000 was also requested.
• In September 2003, the Spanish authorities detained a Greek-operated product tanker and imposed a Euro 600,000 security for its release following an overspill of 1,500 litres whilst she was loading at Cepsa in Algeciras.

The guarantee requested to a vessel even reached Euro 900,000 only last month when a Spanish helicopter over flying the region of Galicia to detect illegal dumping at sea, identified a livestock Beirut-registered vessel off the port of Vigo in North-Western Galicia. There was no indication how much fuel-oil, if any, had been spilled but the issue is a hugely sensitive one in Galicia following the sinking of the Prestige oil tanker.

Pollution incidents are therefore something to be borne in mind particularly for those vessels carrying petroleum products and liquids in general and those calling at inflammables and chemical terminals. Also, all bunkering operations and bilge water movements should be considered as being in the high-risk category.

INDECO suggests that owners and masters ensure that no unauthorised discharge, including Galley or other domestic waste residue from maintenance work or deck cargo hold cleaning, occurs at any time when a vessel is in the Spanish waters and if they occur, to immediately inform the nearest Harbour Master office and call SASEMAR’s emergency phone number (+ 34 900 202 202). Vessels trading regularly to Spain should also consider establishing a quick method of payment of such security guarantees, as this may be the only way to avoid delays to vessels.

Should any shipowners or operators have any queries, they should not hesitate to contact us.