On the wave 2016 – The Ballast Water Management Convention

Environment, Legal, Oceanology, Pollution, Regulatory — By on November 26, 2016 at 11:06 AM

BWM STUDIO LEGALE 2526112016The following article on the Ballast Water Management Convention comes from Studio Legale Garbarino Vergani   and at the end viewers can log on and read same in French and Italian:

1.What is Ballast Water Management (“BWM”) Convention?
The BWM Convention is an IMO international Convention for the control and management of ships’ ballast water and sediment adopted as a result of the diplomatic Conference (BWM/CONF/37) in 2004. With the accession by Finland, the Convention has reached the proportion of tonnage necessary to the entry into force and will become effective starting from 8th September 2017.

2.What is the purpose of the Convention?
The ballast water is an essential element for navigation, giving the ship’s trim and stability. The Convention aims to prevent, minimize and ultimately eliminate the transfer, via ballast water, of harmful aquatic organism and pathogens from an area of the planet to another, thus avoiding negative consequences for environment, human health, biological diversity and the related involved industries (fishing, agriculture, tourism).

According to the BWM Convention, the ships will have to submit the ballast water, embarked during each voyage, to mechanical, physical, chemical, and biological processes, either singularly or in combination, approved by law (for instance UV treatment, ozone, sodium
hypochlorite, inert gas or simply backflushing).

3.Application of the BWM
This BWM Convention shall apply to all types of ships, including submersibles, floating platforms, FSUs and FPOs flying the flag of a party
member of the Convention (“Party”) or, operating within the jurisdiction of a party.
The BWM Convention shall not apply to:

  • Ships not designed or constructed to carry ballast water;
  • Ships operating exclusively in waters under the jurisdiction of a contracting Party, unless the party determines that the discharge of ballast water from such ships would impair or damage their environment (same location clause);
  • Warships, naval auxiliary or other ships owned or operated directly by the government of a contracting Party;
  • Ships with permanent ballast water not subject to discharge

Exemption may be granted to ships on voyages between specified ports or operated exclusively between specified ports or locations when ballast water is not mixed other than between these ports or locations. These exemptions shall be effective for 5 years and subject to intermediate review. BWM.2/Circ.32, dated 8th August 2011, specifies that provisions of the Convention are not applicable to hopper dredgers.

4.Documents required
Under the Convention ships will be required to carry on board the following documents:

  • “Ballast Water Management Plan” approved by the competent flag Administration, detailing safety procedures and actions to be taken to implement the ballast water management requirements;
  • “Ballast Water Record Book” for the recording of each operation concerning ballast water management;
  • “International Ballast Water Management Certificate” for ships of 400 gross tonnage and above excluding floating platform, FSUs (Floating Storage Units) and FPSOs (Floating Production Storage and Offloading Units); this certificate has a 5 years validity and is subject to annual and intermediate renewal surveys

5.Existing ships and new ships
Existing ships will be required to install on board an approved ballast water treatment system by the first IOPP renewal surveys after the entry in force of the BWM Convention, whilst new ships, built after 8th September 2017, will have to be compliant with Convention starting from the delivery of the ship. In the period between the entry into force and the first IOPP renewal survey, existing ships will be required to perform the ballast water exchange only according to the Convention’s requirements. It may be worth pointing out that proposals have been made by some Countries to postpone the entry in force of the Convention for existing ships.

6.Issuance of BWM Certificates before the entry into force of the BWM Convention
At the 64th session of MEPC, the BWM.2/ Circ.40 was approved. This Circular aims to solve the issue of the lack of a phase-in period
for the existing ships allowing Contracting Governments to BWM Convention to issue International Ballast Water Management Certificates prior to entry into force of the Convention.
In these Certificates it has to be mentioned that the validity begins from the entry into force date of the Convention.  Therefore the competent Administration or any Organization recognized by it has to issue a statement to the shipowner attesting the time
when the BWM Plan was received. Since this date, the ship will be allowed to navigate for three months with un “unapproved” BMW Plan
on board.

7.Violation and Sanctions
In case of violations it is not clear what kind of consequences will be imposed to the violation party.
The BWM Convention states in Article 8 (Violations) that, in case of violation, sanctions shall be established under the law of the competent flag Administration of the ship. The provision also states that the sanction imposed shall be adequate in severity to discourage violations of the Convention wherever they occur.
What will be then the sanctions which will be applied by Italy, which has not yet deposited the instrument of ratification? The Environment Ministry, questioned on the point by Confitarma, did not, so far, give any feedback.

8.What possible impact?
Certainly this Convention will generate an important impact on the Shipping industry.
Based on data provided by analysts, it seems that performing a retrofit of existing ships to adopting the same standards imposed by the
BWM may cost between USD 1-5 million. Thus will almost certainly speed up the demolition process of older tonnage. The scenario
resulting from the application of this Convention looks like an “arm wrestling” between the Institutions, concerned about the damage to
the environment procured by a villain deballasting and shipowners already facing the bad market, concerned about the important cost of this legislation.

9. US rules and International rules
A very delicate issue arises from the nonratification of the Convention by the United States. In 2012, the United States have adopted
their own regulation for the control and the management of ship’s ballast water that still awaits approval by the Coast Guard.
The shipowners operating in US waters have been granted to gear up for 5 years, alternative system AMS (Alternative Management System) compliant to the standards set in the BWM Convention.
After 5 years of the extension granted by the United States, shipowners might then have to replace the system with additional substantial
costs in order to be compliant the with US regulation. The discrepancy between BWM system and the severest USCG one, is therefore
quite concerning.

10. Our law firm
Our law firm will monitor further developments of this matter, in particular with reference to the timing of entry in force of the legislation for the existing ships and sanctions applicable in case of violation of the Convention rules

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