Ballast water regulation — A brief overview

Malcolm Latarche
Malcolm Latarche

10 March 2017

Using water as ballast for empty or part-laden ships is not a new development having been in use for more than 200 years. Ballast is not just used to adjust draught but also to help trim to enable safe and efficient operation of ships under a variety of conditions including cargo shift and water ingress. Few of those that were innovative enough to make use of water instead of solid ballast could have thought that their idea was later to be considered as ecologically unsound.

It was not until the 1982 UN Convention on the Law of the Sea (UNCLOS) that control of species transfer became a topic of international concern. Some ten years later, the 1992 United Nations Conference on Environment and Development (UNCED) requested the International Maritime Organization (IMO) to consider the adoption of appropriate rules on ballast water discharge.

The ballast water treatment convention was to be a further 12 years under discussion before its final Adoption in February 2004. Adoption did not mean that the convention automatically came into force; for that to happen there needed to be ratification by at least 30 states representing 35% of the world merchant shipping fleet by gross tonnage.

The first trigger point was reached some years ago, but the 35% fleet figure was only achieved on 7 September 2017 when Finland ratified. Since then the figure has increased to well over 50% thanks mainly to Panama adding its signature.

China and several European nations have not so far ratified the convention and neither has the US although it has introduced its own federal regulation very similar to that of the IMO Convention. The US regulation has meant that the potential for individual states in the union introducing their own local laws has been averted but all vessels intending to trade to the US will now have to fit a treatment system even though the requirement does not yet exist in most other parts of the world. The differences between US and IMO regulations are explained later.

Although it is generally accepted that the requirements of the convention will become standard practice, parties to it are given the right to take, individually or jointly with others ‘more stringent measures with respect to the prevention, reduction or elimination of the transfer of harmful aquatic organisms and pathogens through the control and management of ships’ ballast water and sediments, consistent with international law’. However, this has been tempered by adding a clause saying that ‘Parties should ensure that ballast water management practices do not cause greater harm than they prevent to their environment, human health, property or resources, or those of other States’.

Constant delay

When the IMO Convention was adopted in 2004, treatment systems were in their infancy although much time and money was being spent in their development. Consequently, the first date requiring some ships to be equipped with a ballast water treatment system was set for 2009 in anticipation of the requisite ratifications being achieved before that date.

Under a rollout programme that depended upon ballast capacity and build date, all new vessels built today would need to have a system onboard from the date of delivery. Ships built prior to 2009 (or prior to 2012 if they had a ballast capacity over 5,000m3) would be permitted to delay retrofitting a system until 2017. However, since the convention now only comes into full effect in September 2017, no ship can be considered non-compliant if the owner has chosen not to install a ballast treatment system so far.

As the first deadline was reached in 2009 and it was clear that the required signatures had not been gathered, the IMO agreed to a one year extension for newbuildings and until late in 2012 had stuck rigidly to that position. At the 64th meeting of the Marine Environment Protection Committee (MEPC) held in October 2012 and generally referred to as MEPC64, the IMO finally accepted industry arguments that the timetable had become unworkable. As a result, it was agreed that a Correspondence Group headed by Japan would be set up to examine what options there are for implementation of the Convention for existing ships.

The biggest problem facing the IMO was that under the rules governing conventions, texts cannot be changed between adoption and coming into force dates. As a consequence, the timetable could not be further amended and in attempt to address this and to encourage more states to add their signatures it was decided at MEPC 65 in May 2013 that when the convention finally comes into force, a relaxed installation regime would be recommended.

Although on the face of it this would seem to be a workable proposal it does not alter the fact that it is only a recommendation and individual states would not be obliged to implement the new timetable. That could leave vessels liable to detention if a port state was determined to adhere rigidly to the initial timetable.

Now that there is a definite date for the convention to become fully effective, the applicable date of compliance with D-2 standard is first renewal survey of the IOPP for all existing ships. Any ship built after the entry into force sate of 8 September 2017 will be required to have a treatment system installed at delivery.

Many arguments have been put forward suggesting that the number of vessels needing to install systems is such that the capacity of repair yards and engineering companies will not be able to cope. The arguments have been rejected by the IMO but the subject is on the agenda for further meetings of the MEPC this year.

So what's the latest?

As things stand, ships subject to the convention will be obliged to fit systems after 8 September 2017 at the next renewal of their IOPP certificate. That certificate is issued for a period of five years and under the IMO’s harmonized system of survey and certification (HSSC) rules is normally issued simultaneously with all the other SOLAS and MARPOL certificates a ship needs.

The HSSC convention was adopted in 1988 but did not come into effect until 2000. It was devised to help shipowners to synchronise the renewal dates for all the various documents so that they did not have to make a stream of visits to drydocks because documents were issued and expired at different times. Most, if not all, flag states have written HSSC requirements into their merchant shipping regulations.

For some years now and in anticipation of an imminent coming into force of the ballast water convention, some shipowners have brought forward periodic drydockings which has had the effect of putting off the next renewal date of the IOPP. For some of those owners which took that action early, the time is coming around for the next renewal survey. Now a new strategy has been developed that shipowners are embracing enthusiastically and which some flag states have also begun to publicise if not promote.

The strategy is something of a backward step to the days before HSSC and involves de-coupling (or as some flag states call it de-harmonising) the IOPP survey and certification date from the other certificates. Faced with a large bill for installing a ballast water treatment system, the possibility of just paying for an IOPP survey and certificate could be very attractive. Especially if the ship involved is within five years or so of a retirement date.

Despite having signed up to the ballast water convention, it seems that some flag states are now quite willing to circumvent its requirements by allowing shipowners to de-couple the anniversary of the IOPP renewal from the normal five-year cycle. Norway and St Vincent were among the first to do so and they have now been joined by the Marshall Islands, Liberia and Panama as well as others. Almost certainly more states will follow suit although some will be doing so reluctantly.

It will be a brave decision for flag states to prohibit the practice because in many cases, the owner may just decide to change flags instead. Under present trading conditions, delaying the installation and cost of a ballast treatment system is an attractive proposition and there is sure to be a rush by shipowners to take advantage of the chance to put off the inevitable by a further five years. To do so they will have to arrange for the renewal survey to be undertaken before the 8 September.