Aye, aye, captain! Court clarifies master’s capacity to appear in proceedings
Introduction
Local authorities have increasingly exercised their power to enforce local regulations concerning waste disposal and broadened the responsibility of vessels in this regard. It has become common practice for local authorities to request the compulsory discharge of waste from vessels, even if this action appears to go against commonly accepted international law that is binding in Argentina.
Many shipowners are concerned with the fact that inspectors are boarding vessels at berth and requesting that they discharge waste due to “deficient sanitary conditions” even if the vessels have a “garbage management plan” under Annex V of the International Convention for the Prevention of Pollution from Ships (the MARPOL Convention). This situation is exacerbated by the fact that most of Argentina’s up-river port terminals, if not all, have no facilities to receive waste from vessels. Cases have also been reported in which unrequested barges have waited alongside vessels while inspectors were on board to verify their waste storage rooms to put pressure on the master to undertake waste discharge.
Argentina is party to the MARPOL Convention and hence its revised Annex V (as per resolution MEPC.201(62)) should be followed in Argentine ports. In contrast, local authorities have recently invoked a domestic regulation (Regulation 714/2010) to inspect vessels and in most cases, if not all, have required waste discharge.
From a phytosanitary perspective, local authorities other than the Coastguard can inspect ships and check whether they comply with local regulations on organic residues, but they do not have the power to inspect other conventional types of waste (eg, plastics or domestic or hazardous waste). This has caused a conflict of jurisdiction between local authorities – namely, the National Service of Agri-Food Health and Quality (SENASA), as the phytosanitary and zoosanitary authority, and the Coastguard as the primary maritime authority in Argentina.
According to Article 3.13.3 of Regulation 714/2010:
SENASA in its capacity of enforcement authority of the “Plan Nacional de Residuos” (National Garbage Plan) may require the discharge of garbage according to the provisions of this regulation when situations and health reasons so request. If the authority of the vessel or the local agency refuses to comply with the above, a written record must be issued and this shall be informed to the competent authority of the jurisdiction where the vessel is in order to comply with it and carry out the discharge.
The MARPOL Convention takes precedence over Regulation 714/2010 in the Argentine legal framework. Under the regulation’s criterion, local authorities can request the discharge of vessel waste for health reasons. However, this rule is unlikely to be triggered if a vessel has a “garbage management plan” pursuant to the revised Annex V of the MARPOL Convention.
If inspectors request that a vessel discharges its waste, the master may refuse to do so. Under Regulation 714/2010, the master’s refusal must be certified and the competent authority must be informed in order to comply with the regulation. In this regard, and although it is not mentioned in Regulation 714/2010, the competent authority is the Coastguard, pursuant to Article 2 of Act 24,089. The Coastguard must check whether the vessel complies with the MARPOL Convention, normally in the context of port state control.
The current regulations are expected to be reviewed and the existing scenarios in this regard could change if the government passes a bill entitling only the Coastguard to inspect ships during inward clearance at anchorage and before berthing.
