Malaysian Shipping Notice MSN 10/2021 (PART 2), Resolution MEPC.329(76), Amendments to MARPOL Annex I, Prohibition on the Use and Carriage for Use as Fuel of Heavy Fuel Oil by Ships in Arctic Waters (in force 1 on November 2022)

Today’s article is a short one. The substance of Resolution MEPC.329(76) is no more than 2 sides of A4 paper.

In order to prevent Usage and Carriage of Heavy Fuel Oil by Ships in Arctic waters, the International Maritime Organisation (IMO) acted through its Marine Environment Protection Committee (MEPC) under Article 38(e) of the IMO Convention. This initiative by IMO is done via Article 16 of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (hereinafter referred to as MARPOL). The Amendments to MARPOL Annex I are deemed to have been accepted on 1 May 2022 (unless not less than 50 percent of the combined merchant fleets of the world object), see Article 16(2)(f)(iii), or on 1 November 2022 upon their acceptance, see Article 16(2)(g)(ii) of MARPOL.

The first amendment introduced by the Resolution, is to the title of Chapter 9. That now reads as follows: ‘Chapter 9 - Special requirements for the use or carriage of oils in polar waters’. The second amendment is the introduction of a brand new Regulation 43A, titled ‘Special requirements for the use and carriage of oils as fuel in Arctic Waters’. There are 5 features to Regulation 43A.

First, usage of Heavy Fuel Oils listed in Regulation 43.1.2 are generally prohibited for usage as fuel by ships in Arctic waters, from 1 July 2024. The only exception to this prohibition are for ships engaged in ensuring the safety of ships, or ship involved in search and rescue operations. Ships dedicated to oil spill preparedness and response are also exempted from this prohibition, see Regulation 43A.1

Second, the prohibition of usage and carriage of heavy fuel oils listed in Regulation 43.1.2 applies to fuel tanks placed in what the regulations describe as ‘protective locations’ (see Regulation 12A) applicable for fuel tanks of 600 cubic metres, see Regulation 43A.2. This prohibition is applicable even where the ship has undergone a major conversion (see Regulation 1.28.9) irrespective of the reasons for such major conversions. The prohibition on usage of such heavy fuel oil also extend to vessel regulated by the Polar Code, see Regulation 1.2.1, Chapter 1 of PART II-A.

Third, if heavy fuel oils listed in Regulation 43.1.2 have been used in prior operations, some leeway is given. There is no need for cleaning or flushing of the tanks or pipelines, see Regulation 43A.4

Fourth, for IMO Convention countries that have a coastline bordering Arctic waters, the requirements in Regulation 43A.1 and 43A.2 may be waived temporarily. In order to enjoy the waiver, the ship need to fly the flag of these ‘border’ MARPOL Convention States. Hence, such ships operating in these border areas will be subject to the jurisdiction of the flag state. This merely clarifies the existing fundamental position under international law on obligation and jurisdiction of the flag state. Ships operating here are also required to take into account IMO Guidelines for operating in this region. The waiver given in this context does not last forever. For the future, no waivers can be given on or after 1 July 2029, see Regulation 43A.4.

Fifth, a MARPOL Convention Signatory State has on obligation to communicate the particulars of granting of the waiver to IMO. This would help any affected state to take appropriate action where necessary.

Thank you for reading IMSML Website Article 26/2022

Stay tuned for the next IMSML Website Article 27/2022:

Malaysian Shipping Notice MSN 10/2021 (PART 3), Resolution MEPC.330(76) - Amendments to MARPOL Annex I and IV (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

8 November 2022

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