 The Sulphur Inspection Guidance (found here) published by EMSA in 2018 explains the practical implementation of the legal requirements in question. Though not binding, the Guidance is intended to steer the industry towards harmonised compliance. Page 12 of the Guidance provides:


“On a ship that uses an EAM to meet the requirements, the sulphur inspection should be limited to determining whether the ship: • has received an appropriate approval for using an EAM (approved, under trial or being commissioned), and


• is using the EAM for all fuel combustion machinery on board”.


Whilst commissioning is mentioned, albeit in passing, it is only done in the context of the staged approval process which is naturally conducive towards the required use of the EAM on board, once it has been commissioned, trialled or approved.


Appendix VII of the Guidance on page 28 sets out a list of non-compliances with the Directive and leaves us in no doubt that where commissioning is still in progress this would be treated as a non-compliance:


Table 1 NON COMPLIANCE DESCRIPTION ACTION TAKEN


Emission abatement method approval document or trial approval


Missing, incorrect entries, incomplete, invalid Commissioning in progress


• Fuel sampling


• Penalty as per provisions pursuant to national legislation


• PSC authority informed


• National Flag State authority informed


• Foreign Flag consulted • Other (free text)


Another circumstance that would be treated as a breach of the Directive is where it comes to light upon inspection by Port State Control or maritime enforcement authorities that the EAM on the ship is not continuously reducing SOx emissions.


Table 2 NON COMPLIANCE DESCRIPTION ACTION TAKEN


Abatement technology Not continuously  emissions


• Compliant


• Penalty as per provisions pursuant to Sulphur Directive


• PSC authority informed


• National Flag State authority informed


• Foreign Flag consulted • Other (free text)


It is expected that from 1 January 2020, maritime enforcement inspectors will seek to ensure in the course of their inspections in ports that not only are the scrubber systems approved for use, but that ships are actively using scrubbers to continuously reduce SOx emissions.


DIRECTIVE REFERENCE Art 8.2


DIRECTIVE REFERENCE


Art 9.2 Art 10


 The UK has not diverged in its implementation of the international and European sulphur requirements. The UK’s Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008 (as amended) and the Merchant Shipping (Prevention of Air Pollution from Ships) and Motor Fuel (Composition and Content) (Amendment) Regulations 2014  requirements for actual “use” of EAMs provided for in  for a master of a ship to utilise fuel having a sulphur content above 0.50% from 1 January 2020 unless  abatement method. The word “commissioning” is not referred to anywhere in the UK Regulations. The Maritime and Coastguard Agency Marine Guidance Note, MGN 510 entitled “Use of Exhaust Gas Cleaning Systems under the Merchant Shipping (Prevention of Air Pollution from Ships) and Motor Fuel (Composition and Content) (Amendment) Regulations 2014” further supports the requirement for actual use of the scrubber systems which must be compliant and approved before they can be used.


Enforcement and sanctions for non-compliance  are established by individual Parties to MARPOL as Flag and Port States. Sanctions can be in the form of     would be unlimited. A mandatory order to restore any damage and to remedy the breach (e.g. install an approved scrubber system) could also be made in  person’ under UK Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008 is wider than that of MARPOL and the Sulphur Directive. Whilst the latter instruments penalise the master of a ship and/or the ship owner, the UK regulations are wide enough to place liability on the owner, master of the ship, manager, charterer, harbour authority or terminal operator, fuel oil supplier or fuel oil supplier’s representative (e.g. making a false declaration on the BDN) and any person who causes a non-compliance of any of the aforementioned persons through their acts or omissions. It is the latter “any person” liability that could potentially expose those in the scrubber industry to a prosecution in UK if it comes to light that scrubbers were supplied on a false premise which 


26 | ADMISI - The Ghost In The Machine | January/February 2019


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