the end-of-life of ships

Master Maritime and Transport LawThe end-of-life of ships

Eveline Sillevis Smitt and Michiel ClaassenLawyers Regulatory and Government Affairs

15 januari 2013

5258471

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Subjects to be discussed

• Preliminary remarks• Issues regarding the dismantling (recycling) of ships• Present legal framework: Basel Convention (signed

1989; entered into force: May 1992)• European Regulation on the shipment of waste (259/93 as

amended 1013/2006)

• Future legal framework: Hong Kong Convention (2009)• Proposal for European Regulation on the recycling of ships,

dated 23 March 2012

Ship graveyard

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Hulking

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Artificial reefing

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Floating and dry-dock storage

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Sink exercise

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Dismantling of ships

Preliminary remarks

• This lecture is limited to the dismantling (recycling) of ships, not the recycling or disposal of its cargo, although the legal framework for the recycling of cargo may overlap

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• For cargo scandal: Probo Koala/Trafigura: in 2006 Probo Koala sails from Amsterdam carrying hazardous waste which was dumped in the Ivory Coast.


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• Many ships are reaching the end-of-life period and contain hazardous materials, such as absestos, oils and other chemicals

• Problems to be addressed: • Environmental issues

regarding no sound/proper dismantling, as well as

• Concerns for the heath and safety for the workers

Alang, India: the “ship break capital of the world”.


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http://www.youtube.com/watch?v=ia7xnmcQbNg&feature=youtu.be

The Ship Breakers

Dismantling of ships, facing a challenge:

• Large number of ships reaching end-of-life period and expected to be sent for dismantling

• As result overcapacity in the world fleet for coming 5 – 10 years

• Ship dismantling relocated to non-OECD Countries for economic reasons

• Demand for steel, low labour costs, no environmental costs

• OECD (Organisation for Economic Cooperation and Development; 34 countries: high-income economies) www.oecd.org

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• Present recycling capacity: mainly outside the OECD in China, India, Pakistan and Bangladesh

• IMO (International Maritime Organisation) Guidelines on sound ship recycling (2003): not legally binding

• Present legal instruments hard to enforce

• Hong Kong Convention is based on IMO Guidelines• Urge for Hong Kong Convention in order to ensure:

• Environmentally sound recycling of ships, • With concern for the workers (health and safety

matters)

• Put up in May 2009

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Present legal framework: Basel Convention 1989/1992• Present international legislation on “waste-ships”

laid down in:• Basel Convention (1989/1992), which provides rules for the

“control of transboundary movements of hazardous wastes and their disposal”

• Proposed Amendment 1995: prohibition on export of hazardous waste to non-OECD countries: not yet entered into force

• In Europe implemented in the European Regulation on the shipment of waste (259/93, updated by Regulation 1013/2006)

• Ships are waste when sending away/intended for dismantling:

“Wastes are substances which are disposed of or are intended to be disposed of or are required to be disposed of by provisions of national law” (art. 1 Basel Convention)

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Basel Convention

• Basel Convention on the control of transboundary movement of hazardous wastes and their disposal

• Adopted in response to public outcry in 1980’s following the dumping toxic waste in Africa and other developing countries

• Entered into force on 5 May 1992; Approx. 179 parties to the Convention www.basel.int

• Originally not drawn up with the end-of-life ships in mind, but has become very relevant since case law confirms that a ship destined for recycling has to be qualified as waste

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http://www.basel.int/

Basel Convention

• Scope: transboundary movement of hazardous waste (i.e. from an area under the national jurisdiction of one state to an area under the jurisdiction of another state; art. 1 and 2, sub 3)

• Relevant general obligations, like (art. 4):• Parties shall not permit the export or import of hazardous

waste to or from a non-Party country• Parties may prohibit the import of hazardous or other waste

for disposal (including recycling: see annex IV) and shall inform other parties hereof

• Parties shall prohibit the export of hazardous waste or other waste to parties which have prohibited the import or which do not consent in writing to the specific import

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Basel Convention

• General obligations (art. 4; continued):• Transboundary movement is only allowed:

• if the state of export does not have technical capacity or facilities to dispose in an environmentally sound manner;

• The waste is required as a raw material for recycling or recovery industry

• Ensure the availability of adequate disposal facilities• Parties will not allow the export of hazardous waste to Parties

if it has reason to believe that the waste will not be managed in an environmentally sound manner

• China, India, Bangladesh: party to Basel convention? Yes

• Basel convention not properly enforced in those countries

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Basel Convention

• Basel Convention is an international treaty; ratification and enforcement

• In the EU, the Basel Convention is implemented in the European Regulation on the shipment of waste (1013/2006)

• With ban on export of waste ships to non-EOCD countries (like India, China, Bangladesh)

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European Regulation on the shipment of waste, 1013/2006

• European Community is party to the Basel Convention since 1994

• By adopting Regulation 259/1993 on movement of waste, the EU Council adopted for member states an identical system to control movement of waste and comply with requirements of Basel Convention

• Update EU Regulation 259/1993: EU Regulation EC/1013/2006 of 14 June 2006 on shipments of waste

• European Regulation (like 1013/2006) direct applicable in the member states, no implementation needed and allowed

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• Distinction is made between legal regime and possibilities for wastes: (1) green list vs (2) red list

• Distinction has been made between (1) disposal and (2) recovery (= recycling) activities with the waste involved

• Furthermore, different regime depending on destination of waste:• Within the EU (Title II)• Outside the EU to third countries (Title IV)

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Defintion of waste ship

• Regulation 1013/2006, Annex III, under GC 030 (green listed waste), when:• Vessels and other floating structures for breaking up,

properly emptied of any cargo and other materials arising from the operation of the vessel which may have been classified as a dangerous substance or waste, however

• Taking into account the heading of Annex III: the ship is not green waste if it contains other materials to the extent which:• Increases the risks of recycling in a way that the

transboundary movement needs prior notification and consent, or

• Prevents the recovery in an environmentally sound manner

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European Regulation on the shipment of waste 1013/2006

• Ships destined for dismantling, however, in general contain hazardous substances such as asbestos, oils and other chemicals

• Ships are therefor most of the time not green listed waste

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• Transboundary shipments within EU:• Green listed waste ship meant for recycling within

the EU is allowed, provided certain formalities are met

• Non-green listed waste ship: prior notification and consent

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• Transboundary shipments outside EU concerning waste ships meant for recycling, not green listed: • Export to non-OECD countries is prohibited (art. 36 EU

Regulation)• For 34 OECD countries: not China, India, Bangladesh• Export to OECD and within EU is allowed, provided prior

written notification and consent (art. 38 and 4)

• Transboundary shipments outside EU concerning waste ships meant for recycling, green listed:• Can be allowed, depending of the procedures confirmed by

the receiving non-OECD country (art. 37)

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• Part of the notification is that must be stated how the waste is to be processed (disposal or recovery) by the receiving party

• The competent authorities of destination, transit and dispatch have in principle 30 days following the acknowledgement of the notification to consent, consent with conditions or object

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European Regulation on the shipment of waste (example 1)• Sandrien wanted to leave the Amsterdam harbour

in March 2001• According to its documents in order to be

dismantled in Alang, India

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http://www.henkwildschut.com/sandrien/photos-sandrien/cover/attachment/voorkant/

European Regulation on the shipment of waste• Enforcement measures by Dutch Minister of

Environmental Affairs• Based on EU Regulation 259/1993: no prior

notification and consent for transboundary movement

• Sandrien was not allowed to leave the harbour• Legal dispute whether Sandrien should be qualified

as waste• Dutch Court (“Afdeling bestuursrechtspraak van de

raad van State 19 June 2002, 200105168”) ruled that ship did qualifie as waste and was not ‘green-listed

• Ship was eventually dismantled in the Netherlands (involving high costs)

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European Regulation on the shipment of waste

Result of Sandrien:

• Awareness that ships can be qualified as waste under this EU-Regulation

• That it is commercially not interesting to have ships leave European harbours for their last journey

• That it is commercially interesting to leave the European harbours with some kind of cargo to the East and sail from there to final destination like China, Pakistan, Bangaldesh or India

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European Regulation on the shipment of waste (example 2)

• This Mexican ship needed repairs in Amsterdam in 1999

• Concerning repairs, also lot of asbestos needed to be removed

• The ship was eventually taken over by Dutch State

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European Regulation on the shipment of waste

• Otapan was towed to Turkey (OECD-country) for dismantling (recycling) and Turkisch authorities were notified as required by European Regulation

• Upon entering Turkish waters, it became clear that it contained far more asbestos than notified under the Regulation (1.000 kg)

• Turkish authorities denied access and Otapan had to return to Amsterdam

• Asbestos (77.000 kg) was finally removed in Amsterdam and Otapan was at last again exported to Turkey for recycling

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Conclusions on international and European rules regarding dismantling of ships

• The EU and international waste law only applies to waste

• As long as a ship is not destined for dismantling, it does not qualify as waste and the rules are not applicable

• The EU and international waste law can be evaded by planning the last commercial voyage of a ship to a port in the region of a possible (cheap) recycling yard

• Uncertain whether these actions can be qualified as illegal even if the authorities can prove that last commercial voyage is a facade

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Hong Kong Convention

• Hong Kong Convention (IMO, 2009) for the safe and environmentally sound recycling of ships.

• Aims to:“effectively address, in a legally-binding instrument, the environmental occupational and safety risks related to ship recycling, taking into account the particular characteristics of maritime transport and the need to secure the smooth withdrawal of ships that have reached the end of their operating lives.”

• It is drawn up to replace existing legislation (Basel Convention and the European Regulation on shipments of waste) which are not specifically drawn up for ship dismantling

• Largely based on IMO Guidelines for recycling of ships

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• Scope:• Ships flying under flag of Party• Ship recycling facilities operating under Party

jurisdiction

• Excluded: • War ships, ships used only for government non-

commercial service and ships <500GT

• Addresses all issues concerning ship dismantling, taking in regard the life-cycle of ships:• Design, construction, operation and maintenance• Preparation for ship recycling• Certification of ships• Requirements for ship recycling facilities

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Design, construction, operation and maintenance of ships

• Controls of ships hazardous materials (regulation 4)• Prevent the installation or use of hazardous materials

• Each ship must have inventory of hazardous materials (regulation 5)• Identify the present hazardous materials (see

appendices 1 and 2) and their location in the ship• Existing ships must comply within 5 years or before

recycling if that is earlier• Inventory must be maintained and updated

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Preparation for ship recycling

• General requirements (regulation 8)• Ships shall only be recycled at ship recycling facilities

that are authorized in accordance with the convention• Ships must be certified as ready for recycling by the

authorities prior to any recycling taking place

• Ship Recycling Plan (regulation 9)• The ship recycling facility must develop a ship specific

Ship Recycling Plan• Include measures to ensure safe working conditions• Must be approved by authorities

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Certification of ships

• Surveys (regulation 10):• Initial survey before ship is put in service or before

certificate on inventory of hazardous materials is issued.• Renewal surveys at least every 5 years• Additional surveys in the event of changes, replacements

or significant repairs• A final survey before recycling (International Ready for

Recycling Certificate)

• International Certificate on Inventory of Hazardous Materials (regulation 11)• Cease to be valid if the ship does not correspond with the

certificate• Upon transfer of the ship, a new certificate shall only be

issued if new Party is satisfied that regulation 10 is met36

Requirements for ship recycling facilities• Controls on ship recycling facilities (regulation 15)• Authorization of ship recycling facilities (regulation

16)• Ship Recycling Facilitiy Plan on how to ensure

workers’ safety and compliance with Convention (regulation 18)

• Prevention of adverse effects to human health and environment (regulation 19)

• Safe and environmentally sound management of hazardous materials (regulation 20)

• Emergency preparedness and response (regulation 21)

• Workers safety and training (regulation 22)• Reporting of incidents and accidents (regulation 23)

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Reporting requirements

• Initial notification and reporting requirements (regulation 24)• Shipowner must notify authorities in due time and in

writing of intention to recycle ship• Include: flagstate, registration date […] Inventory of

Hazardous Materials and draf Ship Recycling Plan

• Reporting upon completion (regulation 25)

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Inspections

• Inspection of ship (article 8)• A ship under the Convention may be inspected in any

port of another Party• Inspection is limited to verifying presence of

International Certificate on Hazardous Materials or International Ready for Recycling Certificate

• If ship does not carry valid certificates or if there are clear grounds for believing that ship does not or no longer correspond to certificates, a detailed inspection may be carried out

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Violations

• Parties shall co-operate to detect violations (article 9)• A ship can be detained, dismissed or excluded from port

(article 9, sub 3)

• Any violation of the Convention shall be prohited by national laws (article 10)• For ships, sanctions shall be established by the Party,

wherever the violation occures• For ship recycling facilities, sanctions shall be

established by the Party holding jurisdiction• The sanctions shall be adequate in severity to

discourage violations• Parties informed of a violations by a Party shall promptly

inform the Party and IMO of actions taken or inform them why no action has been taken

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• The convention was approved in May 2009 and will enter into force 24 months after the date when: i. 15 IMO member states, ii. representing no less than 40% of the world cargo

shipping capacity in gross tonnage, iii. with a combined maximum annual ship recycling

volume during preceding 10 years of not less than 3 per cent of gross tonnage of combined merchant shipping

have signed the convention.• The convention is not expected to enter into force

before 2020.

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Proposal for European Regulation on the recycling of ships

• Proposal for European Regulation on the recycling of ships (COM(2012)118 final, d.d. 23 March 2012.

• European implementation of the Hong Kong Convention

• The EU is planning a head start with implementing the Hong Kong Convention

• The proposal takes on the unhuman and environmentally unsound undertakings on the beaches of Alang and such

• At the same time the proposal aims to provide opportunities for sound and modern recycling facilities, such as Sea2Cradle in Rotterdam.

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• Based on this proposal ships destined for recycling are no longer governed by the European Regulation on shipments of waste (art. 29).

• Scope is identical to Hong Kong Convention:• Ships flying under flag of member state• Recycling facilities, though only indirectly• Same exclusions

• Content largely identical to Hong Kong Convention, with few exceptions: EU list, Contract and sanctions

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• Preparation for recycling:• Ships may only be recycled in facilities on European List

(art. 6) and • untill publication only in EU or OECD member states• National authorities may authorize facilities which

comply with requirements of art. 12• Recycling companies outside EU wishing to be included

shall submit an application to the European Commission

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• Contract between shipowner and recycling facility (art. 9)• In addition to ship specific recycling plan• include an obligation to take back ship, where

technically feasible, in case of content of hazardous materials that does not allow for appropriate recycling

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• Member States shall ensure effective, proportionate and dissuasive penalties (art. 23), for inter alia:• not having Inventory of Hazardous Materials• sending ship for recycling in non-EU listed facility

• Where a ship is sent for recycling in a non-EU listed facility, the penalty shall, as a minimum, correspond to the price paid to the shipowner for its ship.

• Where a ship is sold and within 6 months after selling is sent to a non-EU listed facility, the penalties shall be:• jointly imposed to last and penultimate owner if still

flying flag EU Member State• Only imposed to penultimate owner if no longer flying

flag EU Member State46

Conclusions on Hong Kong Convention and EU proposal

• Hong Kong Convention 2020• Proposal for EU Regulation on recycling of ships ??

• Meanwhile and in the event Hong Kong Convention and Proposal are not applicable: Basel Convention and EU regulation on the movement of waste

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Improvement of Basel regime?• Basel focussed on the shipment of waste• Hong Kong takes into account the specific

characteristics of ships and ‘prepares’ ship and recycling facility for environmentally sound recycling

• Under Hong Kong not merely decision of Parties whether or not to allow export of ‘waste ships’, but assessment of recycling facility and specific requirements• Incentive for recycling facilities to comply with

requirement in order to receive ‘waste ships’

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• Risk of changing the flag of ships destined for recycling in a country that is less strict.

• However: • ‘waste ships’ that are not governed by this proposal,

because they are a non-EU flagstate, are still governed by the European Regulation on shipments of waste.

• Penalties for recycling in non-EU listed facility shortly after sale

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• Chances for safe and environmentally sound recycling of ships

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http://www.sea2cradle.com/

the end-of-life of ships

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