Malaysian Shipping Notice MSN 10/2021 (PART 1), Resolution MEPC.328 (76), Amendment to MARPOL Convention, 2021 Revised MARPOL Annex VI (in force on1 November 2022)

This series of articles at the tail end of the year in 2022, starting with IMSML Website Article 25/2022, deals with the very last Malaysian Shipping Notice issued last year in 2021, ie MSN 10/2021, the tenth Notice issued by the Marine Department (MARDEP). The reason for focussing on this Notice is because there are several Resolutions by the Marine Environment Protection Committee (MEPC), made at its 76th Session, which have come into force on 1 November 2022 in Malaysia, and some more due to come into force slightly later on 1 January 2023. For the first article on MSN 10/2021, the author will focus on the Amendments to the MARPOL Convention, in particular the 2021 Revised MARPOL Annex VI which came into force in Malaysia on 1 November 2022.

First a little background on MARPOL. For those who are not aware of this, it is the International Convention for the Prevention of Pollution from Ships. It was adopted on 2 November 1973. About 5 years later, the Protocol of 1978 was added in response to a series of pollution incidents involving tankers. The combined 1973 Convention and the 1978 Protocol entered into force on 2 October 1983. An Amendment Protocol was added in 1997, together with a brand new Annex VI. These provisions came into force on 19 May 2005. There are six Annexes, which are described below:

[1] Annex I, Regulations for the Prevention of Pollution by Oil (entered into force 2 October 1983)

[2] Annex II, Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk (entered into force 2 October 1983)

[3] Annex III, Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form (entered into force 1 July 1992)

[4] Annex IV, Prevention of Pollution by Sewage from Ships (entered into force 27 September 2003)

[5] Annex V, Prevention of Pollution by Garbage from Ships (entered into force 31 December 1988)

[6] Annex VI, Prevention of Air Pollution from Ships (entered into force 19 May 2005).

For more details of MARPOL, see https://www.imo.org/en/About/Conventions/Pages/International-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx (accessed on 6 November 2022)

This IMSML Website Article 25/2022 is about the MEPC’s Resolution MEPC.328 (76) on the 2021 Revised MARPOL Annex VI which came into force in Malaysia on 1 November 2022. The MEPC was acting on its power under Article 38(a) of the Convention on the International Maritime Organisation. The MEPC was also exercising amendment power under Article 16 of MARPOL 1973, as modified by Protocols of 1978 and 1997 (hereinafter referred to simply as ‘MARPOL’). The work of the MEPC on this latest amendment can be traced back to its 72 Session and its Resolution MEPC.304(72) on the ‘Initial IMO Strategy on Reduction of GHG Emissions from Ships’.

The MEPC’s proposed amendments to MARPOL Annex VI concerned mandatory goal-based technical and operational measures to reduce carbon intensity of international shipping and exemption of unmanned non-self-propelled (UNSP) barges from certain survey and certifications. These proposals were circulated in accordance with Article 16(2)(a) of MARPOL.

So let us look at ‘Unmanned non-self-propelled barges’ (UNSP) under Regulation 3.4. This is defined by Regulation 2.1.32 as a barge that is not propelled by mechanical means. This barge does not have any system, equipment and/or machinery that may generate emissions that are regulated by Annex VI. Plus, these barges have neither person, nor live animals on board. Pursuant to Regulation 3.4 UNSPs may now be given exemptions from the requirements of Regulations 5.1 and 6.1 of MARPOl Annex VI. This exemption under Regulation 3.4 are for a maximum of 5 years. The UNSPs must however have been surveyed in accordance with Regulations 2.1.32.1 to 2.1.32.3 and those survey conditions met.

UNSPs may be granted exemptions from the requirements under Regulations 5.1 that deal with surveys. Every ship of 400 gross tonnage and above, every fixed or floating drilling rig or other platform, shall comply with the requirements of Chapter 3 of Annex VI and be subject to the following surveys:

[1] Initial survey, before the ship is put into service see Regulation 5.1.1

[2] Renewal survey, performed intervals of not more than 5 years, to ensure continuing compliance withe equipment, systems and fittings, see Regulation 5.1.2

[3] Intermediate survey, within 3 months before or after the 2nd or 3rd anniversary, see Regulation 5.1.3

[4] Annual survey (self-explanatory), see Regulation 5.1.4

[5] Additional survey, e.g. after important repairs, see Regulation 5.1.5

UNSPs may also be given exemptions from Regulation 6.1 which deal with the International Air Pollution Prevention (IAPP) Certificate. Under Regulation 6, the IAPP Certificate is part of a system of compliance related to fuel oil consumption reporting and operational carbon intensity rating. The IAPP Certificate is usually issued post initial survey, or renewal survey under these circumstances:

[1] Voyages to ports or off shore terminal by any ships of 400 gross tonnage and above;

[2] Platform and drilling rigs engaged in voyages.

As UNSPs are not propelled by any mechanical mechanism, the exemptions under Resolution MEPC.328 (76) are a logical progression of MARPOL regulatory measures as Regulations 5.1 and 6.1 only deal with systems that have emissions. Further, Regulation 8.4 stipulates that any exemption certificate given must be in the form provided for in Appendix XI of Annex VI. The language used in the certificate must be English, French or Spanish. However, where the official language of the issuing country is not one of these three languages, then that unique official language prevails in the event of a dispute or discrepancy. A few more things to note about the format of the certificate. It provides for the usual identity details, eg name of ship, IMO number, port of registry, and gross tonnage. Then there is also the validity date, the time when the survey was completed, plus when and where the certificate was issued.

There are more to articles to come about MSN 10/2021. This Malaysian Shipping Notice has thirteen distinct parts to it. This article merely covers one of those thirteen separate and distinct parts.

Thank you for reading IMSML Website Article 25/2022

Stay tuned for the next IMSML Website Article 26/2022:

Malaysian Shipping Notice MSN 10/2021 (PART 2), Resolution MEPC.329(76) - Amendments to MARPOL Annex I (in force 1 November 2022)

Signing-off for today,

Dr Irwin Ooi Ui Joo, LL.B(Hons.); LL.M (Cardiff); Ph.D (Cardiff); CMILT

Professor of Maritime and Transport Law

Head of the Centre for Advocacy and Dispute Resolution

Faculty of Law

Universiti Teknologi MARA Shah Alam

Selangor, Malaysia

7 November 2022

Note that I am the corresponding author for the IMSML Website Articles. My official email address is: uijoo310@uitm.edu.my