Ballast water saga: regulation requiring chlorination causes confusion
Introduction
A number of indications suggest that shipping compliance in Argentina can be stressful. The requirements for operators regarding inward clearance are usually unclear and patience is required to understand how regulations are likely to apply.
This is particularly true with regard to regulations concerning:
- the inspection of holds and tanks;
- garbage management plans;
- fumigation; and
- ballast water treatment.
In this regard, and following the saga of ballast water treatment in Argentina (for further details please see “New regulation on ballast water treatment“), the Ministry of Environment and Sustainable Development issued Regulation 85-E/2017 in March 2017, which applies to vessels arriving from foreign ports. Pursuant to this regulation, vessels calling at Argentine ports must undertake a chlorination process with regard to their ballast water tanks to prevent the introduction of invasive aquatic species that could affect river ecosystems in Argentina.
In turn, the Ministry of Health sought the enforcement of this regulation through a health unit based in the city of Puerto General San Martin and offices in the cities of Timbues and San Lorenzo, which together receive more than 2,500 ships per year.
It is unclear under the regulation who must chlorinate ballast water tanks. The regulation posits only that it must be done on arrival and does not clarify whether it should be conducted by the crew or a local entity. This has resulted in several operational issues, as vessels were not supplied with chlorine before calling at Argentine ports and cases have been reported in which charterers sought to invalidate the notice of readiness tendered at the pilot station. Simultaneously, the Maritime Authority continued to enforce Regulation 7/98, under which:
- all vessels arriving from foreign ports must deballast before entering the Rio de la Plata; and
- a salinity level lower than 30 parts per thousand (ie, 30 milligrams per cubic centimetre) will not be accepted.
This lack of clarity has resulted in disappointment and more than a little indignation. In part, this is attributable to the lamentable quality of the reasoning displayed regarding the regulations. It also stems from a realisation that the Ministry of Environment and Sustainable Development brought an environmental approach to a maritime law issue which was beyond its competence and appeared to be unaware or unconcerned that this issue was controversial.
Following increased confusion in March and April 2017 regarding the legal framework applicable to ballast water treatment for ships calling at Argentine ports, in May 2017 the Ministry of Health ordered the closure of the Puerto General San Martin health unit. However, Regulation 85-E/2017 was not formally derogated despite the unlikely possibility that it could be enforced again. Nonetheless, in a country with a constantly changing political climate, it is tempting to say that all speculation is futile and that further changes may arise.
