18/19, L.Ewing, ‘Magic Pipes and Marpol: An Evaluation of the Effectiveness of Current Legislative Measures in Dealing with Illegal Bilge-Water Filtration System Bypassing’

Author: Lisa Ewing

Maintaining a high quality of environment within the world’s oceans has repeatedly proven itself to be fraught with difficulty, with oil slicks, plastic pollution and contaminated water all frequently making headlines. One issue however which is perhaps less well known and yet no less important to tackle is that of so called ‘magic pipes’. As shall be explored, the measures to tackle this issue have been only somewhat successful – an extra concern given that, unlike other situations where the pollution may be accidental, the use of magic pipes requires a direct flouting of the laws on oceanic dumping. The use of magic pipes is not a new phenomenon; rather it is a practice which has been used for many years and has continually evaded measures to stop it.

  1. WHAT ARE MAGIC PIPES

To prevent sea pollution, ships are required to filter their waste water before releasing it into the sea, removing oil and other potentially harmful waste products. When the ships reach port, officials make note of the readings on the oily-bilge water filtration machines to ensure correct use. However, running waste water through these systems and disposing of the waste when the ship reaches port is less efficient than simply dumping the water directly into the sea. Magic pipes are used to facilitate this dumping and save the companies money.

The magic pipe is attached to the water system and funnels the bilge water directly into the sea, bypassing the filtration equipment. When port is reached, the pipe may be detached and hidden elsewhere in the ship, and clean sea water may be run through the filtration system to ensure that the meter readings appear normal. Once in place, this sort of operation is very hard for authorities to spot, so, more often than not, the discovery of magic pipes on a ship is a result of a tip-off from an employee, or other party, and a subsequent spot check from port authorities.

This particular type of sea pollution is regulated by the International Convention for the Prevention of Pollution from Ships, better known as the MARPOL 73/78 Convention. Although not all of the annexes of MARPOL are compulsory for signatory states, Annexes 1 and 2, governing the discharge of oil and noxious liquid substances into the sea, are. As it is primarily oily water which is being released through the Magic Pipes, MARPOL is the best placed piece of legislation to deal with this issue.

Under MARPOL, Annex 1, any discharge of oily mixtures from ships into the sea is prohibited, except when, amongst other requirements, the mixture has been passed through filtering equipment and the oil content of the water being released is less than 15 parts per million.[1] MARPOL also provides states with methods of enforcement. Firstly, when in port, Annex 1 sets out that officers may inspect a ship should they have grounds to believe that, for whatever reason, proper procedures are not being upheld.[2] Thereafter, port authorities may prevent the ship from sailing until it has been brought into accordance with the requirements of MARPOL.[3] Parties to MARPOL also have to monitor vessels in order to ensure they are complying with the guidelines using “all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting, and accumulation of evidence”.[4] Finally, there is a provision for punishment: when a party finds that a vessel has been flouting regulations, it must report this to the vessel’s flag State – that is, the state under which the vessel is registered – which must investigate the incident[5]. If a violation is found, then the flag State must impose penalties which are “adequate in severity to discourage violations of the present Convention and shall be equally severe irrespective, of where the violations occur.”[6]

It would appear thus as though ample regulation has been provided to tackle the issue of magic pipes. Indeed, progress has been made – in 1980, 1.5 million tonnes of the oil in the ocean was estimated to have been discharged by vessels, amounting to around half of all of the oil input into the sea.[7] However under MARPOL this figure fell, with vessel discharge dropping to only account for 37% of all oil in the sea as early as 2002.[8]

  1. MARPOL IN USE IN THE UK

As recently as 2016, vessels have been punished for using magic pipes in UK waters. In August 2013, an engineer on a cruise liner run by Princess Cruises resigned and reported to the British Maritime and Coastguard Agency (MCA) that a magic pipe was being used on the ship, and had most recently been used to discharge 4,227 gallons of bilge water 23 miles off the coast of England. Evidence of this was collected by the MCA, who then reported the incident to the US Coastguard – the US being the flag state of Princess Cruises and the vessel in question. When the ship arrived in the US, a thorough examination was carried out, and despite an attempted cover-up by the chief engineer, it was found that there had been discharges of unfiltered water, using a magic pipe, from the vessel.

Ultimately it was discovered that the cruise liner in question had been illegally discharging oil since 2005, eight years before it was ever reported. The US court ruled that, amongst other remedial measures, Princess Cruises would have to pay a $40 million criminal penalty, $10 million of which was to be given to community service projects aimed at improving the marine environment.[9] Additionally, Princess Cruises undertook remedial measures to ensure a similar thing would not happen again, upgrading the monitors and separators on each of the ships in its fleet.[10]

It would seem as though MARPOL performed well here – the perpetrators received a significant punishment for what they had done wrong, and then took measures to rectify and prevent further incidents. This is not unusual – in 2005, MSC Ship Management (Hong Kong) Ltd agreed to pay $10.5 million in penalties when it was discovered that they had tried to cover up the existence of a magic pipe on one of their ships – the existence of which had seen some 40 tonnes of sludge released into the ocean in just 5 months in 2004.[11]

It certainly cannot be denied that in terms of punishment, MARPOL seems very effective at tackling the issue of magic pipes. However, prevention is better than a punishment, and while the cases above are a good example of how MARPOL can be used to attempt to remedy the damage done by magic pipes after they have already been used, they do not necessarily suggest that MARPOL has been effective in preventing use of magic pipes.

  1. LIMITATIONS OF MARPOL

 

  • Investigative limitations

Despite MARPOL, in the above cases the vessels were able to continue to discharge bilge water into the oceans undetected for a significant length of time. In the case of MSC Ship Management,[12] the practice had been going on for at least a year. In the Princess Cruises case, this was five years. The environmental damage which can be done in such a stretch of time, especially given the figures showing how much oil was being released per discharge, could potentially be nothing short of catastrophic.

This raises the question: why wasn’t it spotted earlier? Of course, the very idea of the ‘magic pipe’ is that it can disappear when needed, avoiding detection. Officials are unlikely to find any remnants of oil slicks, as officials only view the ship when it is at port; dumping occurs in open water. With no oil spill, it is unlikely that the port officials would be able to find evidence to reasonably suggest that the vessel had acted illegally.

Without reasonable evidence, the port authorities cannot board the vessel to investigate whether there is unlawful activity.[13] If they do board the vessel, then they are limited to inspecting the vessel’s oil record book, and the oil discharge monitoring equipment. Officials may be able to inspect the oil residue tanks to determine if the sludge is lower than it should be, however there is nothing scientific about this – the port official would merely be making an educated guess.[14] As has been explained, all of these methods of testing the oil are very easy for the crew of a ship to adjust in order to cover misconduct up. As in the Princess Cruises case, sea water can be run through systems or used to top up tanks in order to keep the monitors registering levels within the right range, allowing them to evade detection for even longer. Without a further transfer of power the aim of MARPOL to help minimise the level of pollution in the oceans is undermined – and with so much oil being discharged, time is of the essence in granting those further powers.

  • Limitations resulting from wording of MARPOL

A further limitation to the effectiveness of MARPOL stems from the lackadaisical approach taken by a number of contracting Parties in regards to enforcement facilities. If vessels comply with MARPOL and filter oil out of bilge water, then the vessels will be left with waste oil which must be disposed of in some way. Accordingly, MARPOL states that the Governments of each of the Parties must ensure that the ports have facilities capable of storing the residue of a number of different types of oil, including bilge water.[15]

One hundred and fifty-eight of the world’s one hundred and ninety-five countries are party to Annexes I and II of MARPOL, accounting for 98.9% of the world’s shipping tonnage[16]. However, there are a significant number of states – some developed, but many developing – which do not provide reception facilities in their ports[17]. In part, this is certainly due to a lack of funding and the necessary modern equipment to facilitate the task, however, it has been suggested that, again, the wording of MARPOL does not optimise the effectiveness of the treaty. Parties must ensure that that reception facilities are provided – some have interpreted this to mean that Governments need not provide anything, only that there must be some sort of facility provided somewhere in a port belonging to one Party to the convention, which in effect renders the regulation not binding.[18] Indeed, the International Maritime Organisation itself has stated that “this does not mean that the Government of a Party must provide the facility; it means, in practice, that the Government can require a port authority or terminal operator to provide the facilities.”[19]

Whether or not this is the true meaning of the Annexes could be debated; ultimately it does not matter. If the wording of MARPOL is imprecise enough to allow for such interpretations to be made, then it is clear that the Convention is not acting as efficiently as it should. Of course, there may be other reasons why a country, especially a developing one, might decide to take a more obscure interpretation of a regulation. As has already been stated, there is often a premium on the resources and funding necessary to fulfil MARPOL obligations – for a country, adopting an interpretation which allows for them to conform to the convention as best they can is arguably preferable to not being party to the convention at all. Regardless, such issues do leave vessels in a predicament – if they cannot empty their tanks at shore, then the only available option is to discharge at sea.

  • Limitations resulting from the flag system

Perhaps the biggest flaw within MARPOL is the flag system. Currently, if a ship discharges waste within the territorial waters of a State, then it will fall under the jurisdiction of that country[20]. So, if a ship discharges within the territorial waters of the pot State, the port State can take action. However, outwith this specific circumstance, port States have little power to enforce MARPOL. Upon discovery of a violation, the port State is required to report it to the flag State – the State under which the vessel in question is registered.

Some states have sought to profit from this loophole by becoming an ‘open registry’ country, or, in other words, offering flags of convenience (FOC). Such a country offers ship owners low taxes, and employs a lax attitude towards the enforcement of MARPOL. In this situation, if a violation is discovered, there is little chance of investigation or punishment – circumstances which are advantageous for the profits of private companies and State coffers, but ultimately undermine the effectiveness of MARPOL. At times, the open registry country does not even have a coast, and is completely landlocked[21].

Of course, it is not the fault of MARPOL that companies try to dodge responsibility by registering elsewhere – ships are free to register where they like. However, the inefficient enforcement mechanisms have been exacerbated by the fact that the guidelines for inspecting ships which were provided to the flag States were not compulsory.[22] Rather, the flag State can inspect its vessels in any way it chooses – be that stringently or otherwise.

Of course, these issues cannot be blamed entirely on the substance of the MARPOL Convention – other factors have also impacted the fight against magic pipes. Environmental apathy is still a massive issue, with many simply choosing to ignore the repercussions that their actions have on the environment. Additionally, the workers who are actually carrying out the filtration system bypass may not have enough knowledge of the law to question a superior’s order that a, Magic Pipe be used. Sometimes, crews choose to chance a discharge simply to meet targets or get to a destination that bit faster.[23]

Of course, the situation is not without hope. There are a number of factors which give cause to believe that the regulation will continue to make strides.

First and foremost, it must be remembered that convictions in magic pipe cases do happen regularly. The US, for example, has a strong history of convictions in cases such as these, including the Princess Cruises and MSC cases, as well as other cases such as Angelex Ltd v United States.[24] Indeed, so much freedom was given to the US Coastguard in their capacity as a flag State to investigate possible cases of magic pipe use that the Angelex case, raised controversy over whether or not their actions amounted to a breach of the US constitution.[25]

Furthermore, fines increase with every passing case. The $40 million fine in the Princess Cruises case of $40 million was the highest ever for crimes involving deliberate vessel pollution[26], while other cases prior to that were also remarked upon for the high fines imposed. This may act as a deterrent to companies employing Magic Pipes – where such a high fine is at stake, it may be more economically viable for the company to adhere to the law. Additionally, as fines increase, companies gain more negative media attention – the Princess Cruises case, while it took place in the US, was reported in widely read national newspapers such as the Guardian in the UK. Given increasing awareness among the public of the issue of sea pollution, his sort of publicity is something that companies can perhaps ill afford.

When the actions of the US are considered, it seems to show that, in spite of the various limitations which plague the MARPOL Convention, it is still possible to secure convictions if the motivation is there – the lack of powers within the Convention can be overcome.

Taking these factors into account, it is possible to consider how effective the current legislative measures within MARPOL are at dealing with illegal bilge-water filtration system, bypassing, and how they could be improved.

  1. POSSIBLE SOLUTIONS

Removing the flag State system is perhaps the most critical improvement that could be made to increase the effectiveness of MARPOL. If greater powers were given to port States, then the number of violations caught and, crucially, prosecuted, may well increase. This would also abolish the ‘flags of convenience’ system, and violating ships would no longer have a place to hide, as if they were caught violating the law by a port State, that same State could take action against them.

Furthermore, amendments to MARPOL by way of protocol may also help to tackle the issue of magic pipes more effectively. As has been discussed, the vague nature of some of the provisions can lead to States skirting the rules, creating a situation where ships may have no choice but to discharge bilge-water into the ocean for lack of facilities to do otherwise. Protocols which set out clearly and in detail the States’ legal obligations would close this loophole, ultimately creating a situation in which vessels cannot cite a lack of facilities as an excuse to, discharge the waste.

Overall, the effectiveness of MARPOL in dealing with magic pipes is somewhat mixed. Strides have been made – higher fines and a greater number of convictions have made their mark– however, there are still clear weaknesses. Whilst it is true some of these issues can be attributed to the actions of contracting Parties, this still points to an underlying problem – the Convention does not seem strong enough to ensure that member states comply. New protocols reinforcing MARPOL may be the answer here, providing a stricter outline to which states must adhere. However, as things stand, it must unfortunately be said that MARPOL is not as effective at tackling the issue of Magic Pipes as is necessary.

 

 

[1] International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978 (hereafter referred to as MARPOL 73/78), Annex 1, Chapter 3, Part C, Regulation 15.2.

[2] Ibid, Chapter 2, Regulation 11.1.

[3] Ibid, Regulation 11.2.

[4]A Griffin, ‘MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty?’ (1994) Indiana Journal of Global Legal Studies, Vol 1, Iss. 2, Art 10, 501.

[5] Ibid.

[6] MARPOL 73/78 Art 4(4).

[7]D Cousine and J Grant, The Impact of Marine Pollution, UN Atlas of the Oceans Report, 1980 found at http://oils.gpa.unep.org/facts/sources.htm#oceansatlas [accessed 5/1/18].

[8] National Research Council Committee on Oil in the Sea Report – Oil in the Sea III: Inputs, fates and effects, U.S. National Academy of Sciences (2002).

[9] United States of America v. Princess Cruise Lines Ltd, 2016, Case No. 16-20897-CR-Seitz.

[10] Princess Cruise Lines to Pay Largest-Ever Criminal Penalty for Deliberate Vessel Pollution, US Department of Justice Office of Public Affairs Press Release, 1/12/16, found at https://www.justice.gov/opa/pr/princess-cruise-lines-pay-largest-ever-criminal-penalty-deliberate-vessel-pollution [accessed 3/1/18].

[11] Magic Pipe incident draws huge fine, (2006) Marine Log, found at https://web.archive.org/web/20081211101541/http://www.allbusiness.com/government/environmental-regulations/862836-1.html [accessed 7/1/18].

[12] United States of America v. MSC Ship Management et al, 2005, Case No, 05-CR-10269, 10274 and 10351.

[13] G Mattson, MARPOL 73/78 and Annex I: An Assessment of its Effectiveness (2006) Journal of International Wildlife Law and Policy 9, 189.

[14] Ibid.

[15] MARPOL 73/78 Annex I, Chapter 6, Regulation 38.2

[16] International Maritime Organisation – Status of Conventions Table, 2016, found at http://www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx [accessed 6/1/18]

[17] S Karim, Implementation of the MARPOL Convention in Developing Countries, (2010) Nordic Journal of International Law 79, Martinus Nijhoff Publishers, 319.

[18] Ibid, 320.

[19] MARPOL – How to do it: Manual on the Practical Implications of Ratifying, Implementing and Enforcing MARPOL 73/78, (2003) International Maritime Organisation, London,74.

[20] Griffin, 506.

[21] Karim, 319.

[22] Mattson, 190.

[23] Magic Pipe: The Mystery of the Illegal Activity Still Continues on Ships (2017) Marine Insight , found at https://www.marineinsight.com/maritime-law/magic-pipe-the-mystery-of-the-illegal-activity-still-continues-on-ships/ [accessed 7/1/18].

[24] Angelex v. United States, 2013 Case No.2:13CV-237.

[25] B Abel, Reviewing the Magic Pipes: Angelex Ltd v United States, Oily Water Separators, and Constitutional Review of Coast Guard Action (2015), 23 William and Mary Bill of Rights Journal, issue 3.

[26] R Moore, Princess Cruises fined US$40 million for ‘magic pipe’ used to discharge oily waste, (2017) Passenger Ship Technology, found at http://www.passengership.info/news/view,princess-cruises-fined-us40-million-for-magic-pipe-used-to-discharge-oily-waste_47440.htm [accessed 9/1/18].

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