One of the principle purposes of the European Union Regulation 1257/2013 on ship recycling (the "Regulation") which came into force in December 2019, is to ensure that hazardous waste from resulting from ship recycling is subject to environmentally sound management.
The Regulation obliges all new ships1 to carry on board an inventory of hazardous materials, which shall identify at least the hazardous materials contained in the structure or equipment of the ship, their location and approximate quantities (the "IHM"). All existing EU flagged ships and non-EU flagged ships calling to an EU port or anchorage will be required to carry the IHM together with a certificate of compliance on-board as of the 31 December 2020.2 In terms of Article 8(4) of the Regulation, an initial survey is to be carried out on all existing ships by the 31st December 2020 in order to certify that said ships are complying with this obligation.
A number of stakeholders in the shipping industry have advised the European Commission that the lockdown measures and the widespread travel restrictions imposed in various EU Member States in order to curb the spread of COVID-19 have prevented ship owners (or their registered agents) from producing their IHM and have also created major difficulties for flag state surveyors to conduct inspections in order to verify and certify IHMs held on-board. It is being estimated a substantial number of ships will not be compliant with the IHM obligations and would not have the necessary certificates in place by the 31st December 2020.
In response to this, the European Commission has issued a set of guidelines to EU Port State Authorities in order to ensure a harmonised approach during ship inspections as from the 1st January 20213 (the "Commission Guidelines").
General Guiding Principles
Primarily, the Commission Guidelines first refer to a set of guidance notes published by the European Maritime Safety Agency on inspections carried out by EU port states to enforce provisions of the Regulation4 (the "EMSA Guidance"). Specifically within the context of enforcement actions to be take in the event of ship-recycling related non-compliances, the EMSA Guidance provides that an inspector should be satisfied that any ship recycling-related non-compliances confirmed or revealed by the inspection are, or will be, rectified in accordance with the Regulation. The EMSA Guidance furthermore emphasises that an inspector should use professional judgement in order to decide the appropriate action(s) to be taken for any identified ship recycling-related non-compliance. The Commission Guidelines encourage EU Port State inspectors to take heed of the general guiding principles provided in the EMSA Guidance in view of any identified non-compliances with respect to the IHM obligations which may result from the COVID-19 crisis.
Specific guidance in relation to COVID-19
The Commission Guidelines identify two specific COVID-19 related scenarios which EU Port State authorities are likely to come across when enforcing the Regulation which may require a certain harmonised approach.
Vessels without a valid IHM and/or accompanying certificate due to COVID-19
In this case it is incumbent on the ship owner and/or master of the ship to prove that all possible measures were taken to prepare the IHM and obtain the required certification. Such proof would include providing a service contract for the survey of the vessel to take place. It is then up to the inspector to determine whether the justification provided by the ship is acceptable on a case-by-case basis depending on the circumstances of the ship.
Where the inspector is of the view that the evidence provided is sufficient, the ship has four months, from the date of inspection, to ensure that the IHM and/or accompanying certificate are duly completed. In this case, the inspector will issue a warning to the vessel and register it in the ship recycling module known as THETIS-EU. If the plan set out is further impacted due to continuing travel or access restrictions due to the pandemic, it is the responsibility of the master and or ship owner to prove that it was not feasible to meet the initial targets set out. The inspector will then determine whether the explanation provided is enough to merit a re-evaluation of the initial plan.
In the case of the Ready for Recycling Certificate, the inspector will issue a warning to the ship owner and/or master to obtain the certificate before entering the ship recycling facility. Since this certificate is only valid for 3 months, it should be completed at the earliest prior to the ship undertaking its last voyage to the yard. This warning should also be registered in the THETIS-EU.
Vessels with a semi-completed IHM with an associated approved Inventory Certificate or Ready for Recycling Certificate or the Statement of Compliance that does not contain on-board sampling
In this particular scenario, the ship would have an IHM and relevant certificate which was prepared remotely without on-board sampling due to restrictions on conducting on-board inspections during the pandemic.
In principle where a certificate is based on an IHM without on board sampling, this should not be accepted as it would not be deemed to be complete. However, in view of the difficulty of inspectors to go on-board ships and conduct the inspections themselves, remote surveying could be accepted if it is shown that the flag state is in agreement. The ship will need to document plans and arrangements for when it will be possible for on-board inspections to take place. Again, it is for the inspector to determine whether the proof provided by the ship owner and/or master is sufficient.
The Commission Guidelines provide that the harmonised approach is to be applied for an initial period of 6 months from the 31 December 2020 up to the 30 June 2021.
Steps Taken by the Malta Flag
On the 27 October 2020, by means of Merchant Shipping Notice 163, the Malta Flag Administration formally notified ship-owners, ship operators, managers, masters, and owners' representatives and recognised organisations of Maltese flagged vessels of the said Guidelines. In its notice, the Malta Flag Administration, while referring to the IHM obligation, which comes into force on the 31 December 2020, explained to operators of Malta-flagged vessels that the Guidelines provide guidance in the light of the disruptions that may have been caused by COVID-19, for a harmonised approach towards enforcement by the EU port States authorities during ship inspections carried out as from the said deadline.
The Flag Administration, while recalling the EMSA Guidance, highlighted that this reference document also provides both technical information and procedural guidance contributing to the harmonised implementation and enforcement of the provisions of the Regulation and the Port State control Directive.6
The Maltese shipping community was also reminded of Merchant Shipping Notices No.147 and 153 concerning the implementation of the Regulation.
The attention and cooperation of all parties concerned was encouraged in order to ensure the uninterrupted operations of Maltese ships.
1. For the purposes of the Regulation, a 'new ship' means a ship for which either:
- the building contract is placed on or after the date of application of this Regulation;
- in the absence of a building contract, the keel is laid or the ship is at a similar stage of construction six months after the date of application of this Regulation or thereafter; or
- the delivery takes place thirty months after the date of application of this Regulation or thereafter;
2. For EU-Flagged vessels this would take the form of an Inventory Certificate or Ready for Recycling Certificate whereas non-EU flagged vessels would require a Statement of Compliance.
3. Guidelines on the enforcement of obligations under the EU Ship Recycling Regulation relating to the Inventory of Hazardous Materials of vessels operating in European waters (2020/C 349/01)
5. Ibid N2.
6. Directive 2009/16/EC of the European Parliament and of the Council on Port State Control (Recast)
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