Article by Mr Wang Jing and Mr Xu Congbao
As the ship-induced pollution causes serious damage to the oceanic ecological environment and also incurs huge economic loss, the Chinese Government has acceded to various International Conventions and adopted domestic legislations for oil pollution prevention. The latest development is the promulgation of the Regulations on Prevention and Control of Ship-Induced Pollution to Marine Environment (hereinafter referred to as the Regulations), which have come into force since 1st March, 2010.
Article 33 of the Regulations is a remarkably new development, which stipulates that vessels carrying liquid hazardous and polluting cargo in bulk and ships of over 10,000 GT should conclude pollution clean-up agreement before operation or entering or exiting port. This Article has attracted worldwide attentions from ship managers. Given the prevailing conditions were premature at the time when the said Regulations came into effect, the PRC Ministry of Communications and Transport postponed the implementation of the said article at that time. Subsequently on 30 December 2010, the PRC Ministry of Communications and Transport adopted the Ordinance on Emergency Prevention and Emergency Response to Ship-Induced Pollution to Marine Environment (hereinafter referred to as the Ordinance), which will become effective on 1 June 2011, which aims at providing detailed guidance for the conclusion and performance of pollution clean-up agreement.
According to our information, the requirement for concluding pollution clean-up agreement will be in trial-performance from this June and will become a compulsory one from 1 January 2012. We therefore set out below brief summaries of the said Regulations and Ordinance with our comments thereon.
1. Type of ships that are obligated to conclude pollution clean-up agreements
Oil tankers, other tankers carrying HNS and other polluting cargoes, and other ships of 10,000 GT shall conclude pollution clean-up agreements with qualified contractors.
2. Pollution clean-up units (the qualified contractors)
The pollution clean-up units shall be certified by MSA to four classes based on their respective pollution clean-up capabilities and scopes, namely Class 1: national class, Class 2: coastal class, Class 3: port class and Class 4: terminal class. The MSA should publicize the list of these contractors. The Ordinance does not make it clear whether the contractor certified by the local MSA at one port can conclude the Pollution Clean-up Agreement with the vessels entering another port, but we doubt it.
3. Relevant details of the vessels and contractors of concluding the agreement
It is also regulated by the Ordinance that the vessels of different types, different tonnages and different trading areas shall be required to conclude agreements with clean-up units in corresponding classes.
3.1 Oil tankers less than 600 GT navigating/operating exclusively in port shall conclude the clean-up agreements with clean-up units of Class 4 or above. The Oil tankers over 600 to 2,000GT navigating/operating exclusively in port shall conclude the clean-up agreements with units of Class 3 or above. Oil tankers over 2,000GT navigating/operating exclusively in port shall conclude the clean-up agreements with units of Class 2 or above. For oil tankers not exclusively navigating/operating in the port or involved in the lightering operation, they shall conclude the Agreement with units of Class 2 or above.
3.2 Tankers carrying HNS and other polluting cargoes entering or exiting the port or carrying out the lightering operation within 20 nautical miles from the coast shall conclude the clean-up agreements with clean-up units of Class 2 or above. But if these tankers are carrying out the lightering operation beyond 20 nautical miles from the coast, they shall conclude the clean-up agreements with clean-up units of Class 1.
3.3 Other vessels entering or exiting the port, which has the tonnage of 10,000 to 20,000 GT, shall conclude the clean-up agreement with clean-up units of Class 4 or above; vessels with the tonnage of 20,000 to 30,000 GT shall conclude the clean-up agreements with clean-up units of Class 3 or above; vessels with the tonnage of 30,000 GT shall conclude the clean-up agreement with clean-up units of Class 2 or above.
Nonetheless, if the aforesaid vessels are to carry out the lightering operation within the waters under the jurisdiction of the PRC, they shall conclude the clean-up agreement with clean-up units of Class 2 or above.
(a) Template Agreement
Although it is provided in the Ordinance that the pollution clean-up agreement shall be concluded in a form set out by the MSA, so far the template agreement has not been published yet.
(b) Time of conclusion
The ship operators shall conclude the pollution clean-up agreement with a qualified contractor of corresponding class prior to the vessel's port entry, off-port cargo operation or lightering operation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.