As with most regulation, the core elements are supplemented by further requirements and the Ballast water Convention is no different in this regard.
There are further requirements for shipowners, port states and flag states. For shipowners this entails drawing up a ship-specific ballast water management plan for vessels engaged in international trade and all ships subject to the convention will also have to carry a Ballast Water Record Book and an international ballast water management certificate.
Many of the systems developed to treat ballast water make use of electronic logging of ballast water operations and the data recorded will in many cases be used as either the basis for the entries in the record book or as a substitute for it. The exact requirements will be determined by flag states. Under Article 5 of the convention, signatory states undertake to ensure that ports and terminals where cleaning or repair of ballast tanks occurs, have adequate reception facilities for the reception of sediments.
There is no mention of who is responsible for the cost of such facilities but if similar arrangements apply as for oil waste and garbage then it is likely that the charges will fall upon the shipowner whenever they are used.
Under Article 13 Parties undertake, directly or through the IMO and other international bodies, as appropriate, to aid other Parties with technical assistance, co-operation and regional co-operation. This should not affect shipowners but may find resistance from system suppliers who have expended vast sums on research and development and obtaining patents for some aspects of their systems.
PSC still a problem
Policing adherence to the ballast convention is, as with most shipping regulation, something that is done by both flag and port states. Article 6 which applies to states rather than shipowners, calls on them individually or jointly to promote and facilitate scientific and technical research on ballast water management; and monitor the effects of ballast water management in waters under their jurisdiction.
Ships are required to be surveyed and certified under Article 7 and may be inspected by port State control officers under Article 9.
PSC Inspectors should verify that the ship has a valid certificate; inspect the Ballast Water Record Book; and/or sample the ballast water. If there are concerns, then a detailed inspection may be carried out and “the Party carrying out the inspection shall take such steps as will ensure that the ship shall not discharge Ballast Water until it can do so without presenting a threat of harm to the environment, human health, property or resources.”]
Under Article 12, there is a requirement upon PSC regimes not to unduly delay vessels. The issue of testing by PSC has provoked a lot of debate at recent IMO meetings not least because there has been a divergence in the testing standards for type approval of systems and the standards likely to be used by PSC inspectors when the convention comes into force.
At the centre of the debate is how to ensure that samples taken of ballast water are representative of all the ballast contained in a ship’s tanks.
Initially, the PSC testing procedures fell under the auspices of the IMO’s Bulk Liquid and Gases (BLG) sub-committee. However, something of a breakthrough was achieved at BLG17 in February 2013 when agreement was reached for a voluntary two-year moratorium on PSC action against ships for noncompliance with discharge standards providing the ship could prove that its treatment system was being operated in full accord with the manufacturer’s instructions.
Under the IMO restructuring of 2013, the BLG sub-committee was dissolved and its work spread over other sub-committees. The question of PSC testing is now dealt with by a new sub-committee – Implementation of IMO Instruments (III) which held its first meeting in July 2014. Agenda Item 8 covered ‘Development of guidelines on port State control under the 2004 BWM Convention’. The guidelines referred to were agreed and published as resolution MEPC.252(67) in October 2014. As the convention enters into full effect later this year, some of the concerns of the industry will finally be tested in earnest.
One aspect that could cause concern for owners in the future is that the new G8 type-approval guideline allows for system limitations to be entered on the type-approval certificate. However, nothing has yet been said as to what a ship should do in case it ballasts under conditions that do not allow the system to function correctly and the authorities at a later port where de-ballasting is needed consider the vessel has contravened the discharge standard.
Shipowners have found a legal loophole that could give them as much as five more years if they take action quickly enough, and while not all flag states are happy with the situation, most are prepared to allow owners to take advantage. If they had not, then there was a very strong possibility that shipowners faced with a big bill would have voted with their feet and switched flags.
There are other developments that will work against system manufacturers also taking place. Countries in Northern Europe and South East Asia are actively looking at the possibility of establishing ‘Same Risk Areas’ in their respective locations which could see ships that trade only in those areas made exempt.
There is too a possibility that some ports and entrepreneurs will develop port-based alternatives that are allowed within the convention and which would see ships not having to install systems as long as they trade between such ports. The development of containerised systems not only makes the retrofit process cheaper and less complex, it also means that systems can be recycled when the original ship makes its final voyage to the scrapyard.
All in all it is not what system makers had hoped for but at least some will now be able to begin recouping the expenses laid out in system development.