Dr. N.J. Margetson, partner at Margetson Van ‘t Zelfde & Co.
Under Marpol Annex II noxious liquid substances may be discharged as long as the discharge is in accordance with Regulation 184.108.40.206(1) which provides as one of the conditions for discharge that: “the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled.”
In the Netherlands the Dutch public prosecutor pressed charges against a number of tankers which left port with the intention of cleaning tanks in accordance with the provisions of Marpol. The public prosecutor contended that a ship which leaves port, washes its tanks at sea and after that returns to the same port, is not “en route” as meant in Marpol Regulation 220.127.116.11(1) and therefore commits a criminal offence.
In an earlier publication on this website I discussed a judgment of the Amsterdam District Court in which it was held that the public prosecutor’s construction of the words “en route” was incorrect. In a different case concerning the same issue the court of first instance held the same. On appeal that decision was affirmed. By judgment of 16 December 2014 (ECLI:NL:HR2014:3633) the Supreme Court of the Netherlands affirmed the judgment of the court of appeal.
This makes clear that the expression “en route” does not mean that a vessel must leave port A and enter port B when washing tanks in accordance with the provisions of Marpol. Tankers which leave a port to wash tanks in accordance with the provisions of Marpol and after that return to the same port are not in breach of the provisions of Marpol.