Who is to blame for use of illegal fuel?

IN NOVEMBER last year, the US master of the cruise ship Azura, owned by Carnival Corp subsidiary P&O Cruises, was fined 100,000 euros (S$154,500) by a court in Marseilles.

The prosecution related to a spot check on the Azura in March 2018 when it was found to be using heavy fuel oil with 1.68 per cent sulphur content, just above the 1.50 per cent European limit. The 115,055 gross tonnage ship had taken on the bunkers at Barcelona before sailing to Marseilles.

The prosecutor in the case piled on the emotional language as if the marginal excess of sulphur discovered would really have made a difference to whether somebody lungs would be damaged or not. Franck Lagier said P&O "wanted to save money at the expense of everyone's lungs" and claimed the company had saved 21,000 euros by buying the higher sulphur content fuel.

The court ordered that Carnival must pay 80,000 euros of the master's fine. It also awarded damages of 5,000 euros each to French environmental groups France Nature Environnement, the Surfrider Foundation and the League for the Protection of Birds.

Not surprisingly, the cruise ship operator is very unhappy and a spokesman said: "The Carnival group carries over 12 million guests on its vessels each year and takes its legal and moral obligations towards the protection of the environment very seriously indeed. We were therefore very disappointed to be prosecuted for this offence, which was based on a European law the French Environment Ministry had explicitly informed the cruise industry would not be applied to cruise ships and which, in any event, has still not been properly implemented."

Likely spate of cases

P&O Cruises said that it had lodged an appeal and would "consider the full decision of the court once it is available".

At one level, this is a dispute over what regulation should have applied to the vessel, and it is likely that once the new global cap of 0.50 per cent sulphur content in fuel comes into force in January 2020 there could be a spate of cases worldwide where ships are alleged to be using non-compliant fuel.

This Marseilles case has however caused widespread concern because it was the ship's master who was charged and convicted

Mr Lagier told the court that Captain Evans Hoyt knew the fuel was illegal. However, P&O Cruises says: "The captain was using the fuel in good faith, as directed by us, based on our understanding of the law."

In other words, the master did what he was told.

A ship's master will have a basic understanding of what fuels are allowed, but it is a technically and legally complex area. Is it reasonable to expect a master to have the detailed knowledge of current, and rapidly, changing regulations to be able to refuse to follow the instructions of his company? In the real world, that just can't happen. The master would be on the next plane home.

Perhaps there will be cases after January 2020 when a company does instruct a master to take on and use high sulphur content fuel oil in clear violation of the new regulation. Then there could perhaps be a case that the master is complicit.

But even then the company could, for instance, have told the master that lack of available compliant bunkers allowed them to use high sulphur fuel. How would the master be able to contradict that?

There are cases, such as deliberate discharging of oily waste, where prosecution of seafarers is entirely justified. But Captain Hoyt's case raises serious concerns.

When it comes to enforcing the new 0.50 per cent cap next year, let's hope the focus is on non-compliant companies and not the hapless seafarer in the middle.