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Over the past few years, global warming has become an increasingly debated topic and pollution has contributed quite substantially to that global problem. It is almost easy to understand how a burning bush emitting carbon dioxide causes pollution, which contributes to global warming and exactly how the earth suffers from that, but how does shipping and trade contribute to pollution, and exactly how does the marine environment suffer from that pollution?
Surely sailing from one country to another by ship barely causes any threat to the marine environment – right? Well, wrong. There are quite a number of activities within the maritime industry, which cause pollution and sometimes members of society are not well informed on how these activities contribute to pollution. As a result of my recently developed interest in the marine environment, I have decided to discuss and write more about the maritime environment and those pollutants threatening marine life and ecosystems. However, all those pollutants threatening the maritime industry are heavily regulated, and in order to ensure that these incidents are prevented, the maritime community relies heavily on the application of international conventions developed and published by the International Maritime Organisation (IMO), and the compliance by member states therewith.
In this article, I will discuss three pollutants in the maritime/shipping industry, namely, air pollution, ballast water and oil spills.
Air pollution in the industry is mostly caused by ships that are powered by diesel engines burning high sulphur content fuel oil, which emits sulphur oxide. This is arguably dangerous to the environment especially when it comes to ships that are involved in long distance voyages and are required to be at sea for more than a week. The International Convention for the Prevention of Pollution from Ships (MARPOL) is an international instrument used to regulate the spread of pollution from ships. Annexure VI of MARPOL stipulates that the sulphur content of any fuel oil used on board ships must not exceed 0,5% (mass by mass) as from 1 January 2020, with an exception for ships already using ‘equivalent’ compliance mechanisms. The IMO believes that the promulgation of this regulation will ‘significantly reduce the amount of sulphur oxide emanating from ships and should have major health and environmental benefits for the world, particularly for populations living close to ports and coasts’.
According to Air Pollution and Climate Secretariat (‘Air pollution from ships’ www.airclim.org, accessed 4-3-2021), approximately 50 000 people in Europe are killed every year from smokestack emissions from international shipping and that amounts to an annual cost to society of more than €58 billion; while other people do not die, they end up suffering from lung diseases and respiratory problems, which affects their quality of life. This may be one of the reasons why the IMO believes that the introduction of the above regulation will have major health benefits. Although, at the time of writing this article, there has not been a similar study conducted in South Africa, one can assume that the danger of the loss of human life and health complications also exists in our country.
Therefore, it is important that local authorities, as well as ship owners actively participate in conversations about the likelihood of adopting more cost effective and efficient methods of eradicating air pollution in the shipping industry in addition to the reduction of sulphur oxides.
Ballast water is used to provide stability to a ship during a voyage when the ship is not carrying enough heavy cargo. This water is considered problematic for the preservation of the environment and marine life because it impacts the transfer of water between different ecosystems, which is likely to introduce invasive species produced largely due to expanded trade and traffic volume. The species contained in ballast water are considered alien species when they present danger to the ecosystem where they are discharged. Many alien species are unable to adapt to a new environment and may pose a threat to native plants and animals as they might carry diseases and parasites.
The International Chamber of Shipping (‘Shipping and World Trade: The World’s Major Shipping Flags’ www.ics-shipping.org, accessed 4-3-2021) states that the international shipping industry is responsible for the carriage of approximately 90% of world’s trade and that shipping is the life blood of the global economy. With seaborne trade expanding, this means more ships will be transporting cargo, and thus in need of ballast water. This presents a growing concern on a number of invasive species that will be discharged into the ecosystem with the expansion of seaborne trade. Presently, the emerging concern is not only how to prevent the discharge of alien species, but also how to effectively deal with existing invasions that are dangerous.
Therefore, to regulate this environmental concern, the IMO has published the International Convention for the Control and Management of Ships’ Ballast Water and Sediments. The Convention aims to prevent the spread of these harmful species from one region to another, by establishing standards and procedures for the management and control of ships’ ballast water and sediments. As an intermediate solution, ships are encouraged to exchange ballast water mid-ocean.
However, there are other methods that ship owners can adopt in managing ships’ ballast water to prevent the spread of invasive species. Among those, the use of chemicals, which target alien species in ballast tanks before they are discharged to the ocean, is considered as an effective method.
As mentioned above, most ships are powered by fuel, which may potentially result in oil spills. The maritime community experienced a major oil spill in 2020 in Mauritius when a tanker (MV Wakashio) ran aground and resulted in almost 1 000 tonnes of oil being discharged into the ocean causing a major environmental and economic disaster. The Guardian (‘Mauritius declares environmental emergency after oil spill’ www.theguardian.com, accessed 4-3-2021) reported that MV Wakashio struck a coral reef on 25 July 2020 and started spilling oil on 6 August 2020, which subsequently resulted in the Mauritian government declaring a ‘state of environmental emergency’. The process of cleaning up the oil spill in this case was intensive and subsequently resulted in the French government providing assistance by sending a military aircraft and a naval boat to assist. France’s Minister of Overseas Territories, Sébastien Lecornu, said he was of the opinion that the MV Wakashio oil spill clean-up operation would last for approximately ten months, continuing well into 2021.
These kinds of operations are costly and have long lasting ramifications to both the economy and the environment because the longer it takes to clean-up the pollution, the more marine life is exposed to life-threatening substances and the more funds are required. This explains why a United Nations Recovery Fund to the sum of US$ 2,5 million was launched in support of the clean-up operation in Mauritius.
The IMO has published the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), which establishes measures for dealing with marine oil pollution. Although Article 1 of the OPRC mandates all member States to ‘undertake, individually or jointly, … all appropriate measures in accordance with the provisions of this Convention and the Annex thereto to prepare for and respond to an oil pollution incident’, there are a number of causes of marine oil spills including, among others, collisions, groundings, sinking and machinery failure, which may not necessarily be easily foreseeable, but with proper compliance to other conventions and regulations that regulate safe navigation of the ship and other precautionary measures necessarily for safety in the marine industry, may easily be preventable.
Although the impact of pollution can be mitigated in some cases, at times it is difficult to completely remove the damage done and unfortunately that might result in some marine species such as animals and plants suffering and or ultimately dying. Therefore, in order to ensure that full compliance is adhered to, governments normally impose penalties for pollution caused by the operation of a ship and one of the first factors to consider is the overall seriousness of the pollution. For example, in the case of an oil spill, the authorities would consider –
In a case settled in 2015, Victor Kgomoeswana notes that ‘BP spilled oil in the Gulf of Mexico in April 2010’s Deepwater Horizon incident, it ended up paying $18.7bn in fines in 2015, while the cost of the accident in penalties, clean-up and others exceeded $60bn’ (‘Firm must be held accountable for Mauritius oil spill’ www.iol.co.za, accessed 4-3-2021). This goes to show that while penalties are imposed, at times the people responsible end up paying far less than what it actually cost to remedy the damage done by the pollution.
The prevention of pollution aspect requires compliance, while the response aspect requires efficiency. When a ship is involved in an incident which results in pollution, the responsible person has to take the necessary measures to mitigate the impact of the pollution. However, in terms of South African law, should the responsible person not be in a position to do that, the local authorities are required to act swiftly in response thereto. Rule 85(3) of the National Ports Act 12 of 2005 provides that: ‘If the person or persons responsible for the pollution or damage to the environment fail to take the necessary measures to prevent, mitigate, combat and clean-up the pollution or damage to the environment, including its associated impacts, the Authority may take the necessary measures. The person or persons who caused the pollution or damage to the environment will be liable for the costs associated with the pollution, damage or degradation to the environment, its associated impacts and any mitigating measures.’
In conclusion, it is extremely concerning that the shipping industry is considered one of the world’s polluting industries reported to contribute between 2 to 3% of the world’s total greenhouse gas emissions such as carbon dioxide, which contributes to global warming and extreme weather effects (Kate Whiting ‘An expert explains: how the shipping industry can go carbon-free’ www.weforum.org, accessed 4-3-2021). However, the policy development adopted by the IMO and the maritime community prove to be necessary tools to control and prevent the spread of pollution in the maritime industry, and while more permanent solutions are being discovered, ship owners are encouraged to comply with all the laws, which are promulgated to reduce the spread of pollution within the shipping industry.
Sharon Phumzile Msiza LLB (cum laude) (Wits) LLM (Shipping Law) (UCT) is a legal practitioner in Johannesburg.
This article was first published in De Rebus in 2021 (April) DR 14.
