Legal instruments to control harmful anti-fouling systems on ships
Axel Luttenberger
Faculty of Maritime Studies, University of Rijeka, Croatia
e-mail: axel@pfri.hr
ABSTRACT
The paper deals with harmful environmental effects of organotin compounds used as antifouling system on ships. An analysis is made of the International Convention on the Control
of Harmful Anti-fouling Systems on Ships (AFS-Convention), 2001 as well as the Regulation
(EC) No 782/2003 of the European Parliament and the Council of 14 April 2003 on the
prohibition of organotin compounds on ships and the Council Directive 76/769/EEC of 27
July 1976 on the approximation of the laws, regulations and administrative provisions of the
Member States relating to restrictions on the marketing and use of certain dangerous
substances and preparations. The establishing of legal mechanism is elaborated for preventing
the use of noxious substances as means that are used on the ship to control or prevent the
attachment of unwanted organisms. In author’s opinion the European environmental policy
legislation is a regional environmental needs improvement and not a duplicate of the wording
of the AFS-Convention aimed to reducing or eliminating adverse effects on the marine
environment.
Key words: legal instruments, anti-fouling systems, organotin compounds, environmental
policy
INTRODUCTION
Fouling is an unwanted growth of biological material on a surface immersed in water and antifouling paints are used to coat the bottom of the ships to prevent sealife such as algae and
molluscs attaching themselves to the hull, thereby slowing down the ship and increasing fuel
consumption. However, studies and investigation have shown that certain anti-fouling system
used on ships pose a substantial risk of toxicity and other chronic impacts to ecologically and
economically important marine organism and also that human health may be harmed as a
result of consumption of affected seafood.
The paper elaborates a legal framework for an action to prohibit or control use of noxious
substances as means that are used on the ship to control or prevent the attachment of
unwanted organisms through legally binding instrument.
EVOLUTION OF HARMFUL SHIPS´ PAINTS
Anti-fouling paints are used to inhibit growth of marine organisms to maintain the efficiency
of vessels and infrastructure. In the early days of sailing ships, lime and later arsenic were
used to coat ship’s hulls, until the modern chemical industry developed effective anti-fouling
paints issuing metallic compounds.
2
One of the most effective anti-fouling paints, developed in the 1960s, contains tributylin
(TBT), which has been proven to cause deformations in oysters and sex changes in whelks.
The harmful environmental effects of organotin-based compounds, such as tributylin (TBT)
used in anti-fouling paints on vessel hulls and infrastructure have been recognized for some
time [1]. These compounds slowly “leach” into the sea water, killing marine life attached to
the ships. Thus the development of environmentally sound, biocide-free alternatives to
organotin-containing paints should be supported [2].
Without international action, there would be insufficient impetus for the shipping and marine
coatings industries to restrict the use of harmful anti-fouling systems and develop replacement
systems. In order to reduce or eliminate potential adverse effect to the marine environment of
the anti-fouling paints effective measures should be imposed on shipowners at a global,
regional and national level, in concert with the obligation of the States in implementing
environmental standards.
LEGAL FRAMEWORK FOR REDUCING OR ELIMINATING ADVERSE EFFECTS
ON THE MARINE ENVIRONMENT CAUSED BY ANTI-FOULING SYSTEMS
The Agenda 21 – Report of the United Nations Conference on the Environment and
Development, 1992
Chapter 17 entitled Protection of the oceans, all kinds of seas, including enclosed and semienclosed sea, and coastal areas and the protection, rational use and development of their living
resources in the headings on Prevention, reduction and control of degradation of the marine
environment from sea based activities call upon States to take appropriate measures to reduce
water pollution caused by organotin compounds used in anti-fouling paints [3].
The International Convention on the Control of Harmful Anti-fouling Systems on Ships
(AFS), 2001
The International Convention on the Control of Harmful Anti-fouling Systems on Ships
(AFS) is a framework convention allowing the prohibition of harmful anti-fouling system
used on ships with well-defined procedures to prevent the potential use of other harmful
substances in anti-fouling systems having due regard to the precautionary principle expressed
in the Rio Declaration on Environment and Development.
Anti-fouling system means a coating, paint, surface treatment, surface or device that is used
on a ship to control or prevent attachment of unwanted organism. The AFS Convention shall
apply to ships entitled to flag of the Party, ships not entitled to fly the flag of the Party, but
which operate under the authority of the Party and ships that enter a port, shipyard, or offshore
terminal of a Party. This Convention shall not apply to any warship, naval auxiliary or other
ships owed or operated by a Party and used for a time being, only for government noncommercial services. Nevertheless, each Party shall ensure that such ships act in a manner
consistent, so far as reasonable and practicable, within this Convention. Under the terms of the
AFS Convention ships of above 400 gross tonnage and above engaged in international
voyages - excluding fixed or floating platforms, floating storage units (FSUs) and floating
production storage and off-loading units (FPSOs) - will be required to undergo initial survey
3
before the ship is put into service or before the International Anti-fouling System Certificate is
issued for the first time, and a survey when the anti-fouling system is rechanged or replaced.
Ships of 24 metres or more length but less than 400 gross tonnage engaged in international
voyages (excluding fixed or floating platforms, Fuss and Pesos) will have to carry the
Declaration on Anti-fouling Systems signed by the owner or authorised agent. The
Declaration will have to be accompanied by appropriate documentation such as paint receipt
or contract invoice [4].
By an effective date of 1 January 2003, according to the wording of AFS Convention, all ships
shall not apply organotic compounds that act as biocides in anti-fouling systems, namely TBTbased anti-fouling paints. In addition, by 1 January 2008 ships either shall not bear such
compounds on their hulls or external parts or surface or shall bear a coating that forms a
barrier to such compounds leaching from the underlying non-complaint anti-fouling systems.
Waste material from the application or removal of TBT-based paints will be controlled in a
safe an environmentally sound manner.
The AFS Convention was adopted on 5 October 2001 and shall enter into force twelve months
after the date on which not less than 25 States, the combined merchant fleets of which
constituting not less than 25% of the gross tonnage of the worlds´ merchant shipping, have
either signed it without reservation as to ratification, acceptance or approval, or have
deposited the requisite instrument of ratification, acceptance, approval or accession.
Consequently, the AFS Convention entered into force on 17 September 2008.
The Convention provides for appropriate measures to promote and facilitate scientific and
technical research and provides for the exchange of communications and exchange of
information between parties to the AFS Conventions. Also it deals with the inspections of the
ships and detention for violations.
Annex 1 of the AFS Convention stipulates Controls on anti-fouling system, Annex 2 is
entitled Required elements for initial proposal, while Annex 3 name is Required elements of
comprehensive proposal. Annex 4 entitled Surveys and certification requirements for antifouling system has a model form for the International Anti-fouling Certificate and a model
form of Record of Anti-fouling systems.
Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws,
regulations and administrative provisions of the Member States relating to restrictions
on the marketing and the use of certain dangerous substances and preparations
This Directive is concerned with restricting the market use in the Member States of the
Community of dangerous substances [5, 6] and preparations listed in the Annex. Member
States shall take all necessary measures to ensure that the dangerous substances and
preparations listed in the Annex may only be placed on the market or used subject to the
conditions specified therein, with the exclusion that the restriction should not apply to
marketing and use for research and development or analysis purposes [7].
Regulation (EC) No 782/2003 of the European Parliament and the Council of 14 April
2003 on the prohibition of organotin compounds on ships
4
The rationale of the Regulation is to reduce or eliminate adverse effects on the marine
environment and human health caused by organitin compounds which act as active biocides in
anti-fouling systems used in ships flying the flag of, or operating under the authority of, a
Member State, and on ships, regardless of the flag they fly, sailing to or from ports or the
Member States [8].
The regulation introduces a survey and certification system for ships flying the flag of the
Member State. It stipulates that ships of 400 gross tonnages and above must be surveyed,
irrespective of the voyage and that ships of 24 metres or more in length, but less than 400
gross tonnage, must simply carry a declaration of compliance with the AFS Convention. No
particular survey or certificate is specified in the regulation to avoid overburdening the
administration of the Member States. Ultimately, no survey or certification is envisaged for
ships of less than 24 metres in length, i.e. pleasure craft and fishing boats. The act regulates
the prohibition of the application of organotin compounds which act as biocides, prohibition
of the bearing of organotin compounds which act as biocides, survey and certification, port
State control and the evaluation method on the implementation and new developments.
Regulation (EC) No 536/2008 of 13 June 2009 giving effect to Article 6(3) and Article 7
of Regulation (EC) No 782/2003 of the European Parliament and the Council of 14
April 2003 on the prohibition of organotin compounds on ships and amending that
Regulation
As aforementioned, the Regulation (EC) No 782/2003 requires the Commission to adopt the
measures in order to give effect to that Regulation if the AFS Convention, adopted on 5
October 2001, has not entered into force by 1 January 2001 and – at that date – the AFS
Convention has not entered into force.
The function of Commission Regulation (EC) No 536/2008 of 13 June 2008 is to establish
measures in order to allow ships flying the flag of a third State that enter a port or the offshore
terminal of a Member States to demonstrate their compliance with Regulation (EC) No
782/2003 on the prohibition of the bearing of organotin compounds which act as biocides and
establish procedures for control by port State within the Community as well as to amend the
references to the AFS Statement of Compliance in Regulation (EC) No 782/2003 and Annex
I to that Regulation. [9].
THE ENFORCEMENT FOR EFFECTIVE AND ENVIRONMENTALY SAFE ANTIFOULING SYSTEMS
The legal instruments dealing with harmful ship’s paint are one of the series of measures to
prevent and control pollution caused by ships and to mitigate the effects of any damage that
may occur. Also it is a confirmation of a determination of States and industry to reduce, to the
barest minimum, the impact that shipping may have on our fragile marine environment.
The AFS Convention stipulates the effective dates for organotin compounds which act as
biocides in antifouling system on 1 January 2003 and organotin compounds which act as
biocides in anti-fouling system on 1 January 2008 without linkage to entry into force of the
AFS Convention raising the question of legality of said provisions.
5
In our opinion, setting the date without linkage to the entry into force is not illegal. That is, in
the case that a Convention comes into the force after the mentioned effective date thru legal
effects of the effective date shall be suspended until the date of entry into the force of the
Convention. Before entry into force of the Convention the Convention is not applying to
foreign ships calling to port, but may apply to a national depending on the national legal
system, without expectation that International certificates should be recognized until the date
of the entry into force of the Convention.
The European Union is environmentally committed and – in line with the AFS Convention at the regional level the Community is enacting legal instruments as to impose on shipowners
and Member States, directly and within a short time frame, precise requirements to be
implemented at the same time and the same manner throughout the Community. Regulation
(EC) No 782/2003 on the prohibition of organotin compounds on ships was amended by the
Regulation (EC) No 536/2008 due to the fact that – at that time - the AFS Convention was not
into force.
The AFS Convention banning the use of organotins and other harmful substances in antifouling substances entered into force on 17 September 2008. As of 31 March 2009 there are
37 contracting States representing 66,32 % of the world tonnage.
In implementing the AFS Convention, Guidelines for Brief Sampling of Anti-fouling System
of Ships provide procedure for sampling to support the effectiveness of survey and inspection
as to ensure that ships´ anti-fouling comply with the AFS Convention also elaborating
personnel safety when sampling, sampling methods with technical aspects, thresholds and
tolerance range, definition of compliance with the documentation and recording of
information [10]. In addition, Guidelines for Inspection of Anti-fouling Systems on Ships
stipulates the process for conducting the inspections, particularly the inspection of
International Anti-fouling system Certificate or Declaration on Anti-fouling System, brief
sampling of Anti-fouling System on ships, a well as port State action in response to alleged
contraventions with responsibility of a port State to notify the contravention to the flag State.
[11].
For a particular State not being party of the treaty means lowering internationally adopted
standards and incurring an additional cost as a result of the need to have proper survey
documentation confirming compliance with the Convention issued only by administrations
that have adopted the Convention.
CONCLUSIONS
An effective anti-fouling system can save a shipowner money in direct fuel savings by
keeping the hull free of fouling organism and can extend dry-docked interval with increased
vessel availability since it does not have to spend so much time in dry docking. The
necessitate to continue to develop anti-fouling system which is effective and environmentally
safe and to promote the substitution of harmful systems by less harmful systems and
preferably harmless system is an important challenge of the shipping industry.
6
In author’s opinion the European environmental policy legislation is a regional environmental
needs improvement and not a duplicate of the AFS-Convention aimed to reducing or
eliminating adverse effects on the marine environment
Bearing in mind the State reliance on international maritime industry, it is important to
embrace internationally consistent measures on harmful anti-fouling systems on ships aimed
to fulfil the goal of adequate protection marine environment and human health. The
significant fraction of a new approach to a protection of the sea is a sustainable anti-fouling
system supported by international and regional agreements and a proactive approach of States.
REFERENCES
1. IMO Resolution MEPC.46 (30) adopted on 16 November 1990 Measures to control
potential adverse impacts associated with the use of tributylin tin compounds in antifouling paints, MEPC 30/24
2. IMO Resolution A.895 (21) adopted on 25 November 1999 Anti-fouling systems used
on ships, A 21/Res.895, 4 February 2000
3. United Nations, Report of the United Nations Conference on the Environment and
Development Chapter 17, A/COMF.156/26 (Vol.II) 13 August 1992
4. The International Convention on the Control of Harmful Anti-fouling Systems on
Ships (AFS), 2001, AFS/CONF/26, 18 October 2001
5. Resolution portant avis du Parlement Europeen sur la preposition de la Commission
des Communautes Europeennes au Conseil relative a une Directive concernant la
rapprochement des dispositions sur la marche et de l’emploi de certaines substances et
preparations dangereuses, OJ No C 60, 13.3.1975
6. Opinion of the Economic and Social Committee on the proposal for a Council
Directive on the approximation of the laws of the Member States restricting the use of
certain dangerous substances and preparations, OJ No C 16, 23.1.1975
7. Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws,
regulations and administrative provisions of the Member States relating to restrictions
on the marketing and the use of certain dangerous substances and preparations OJ L
262 of 27.9.1976
8. Regulation (EC) No 782/2003 of the European Parliament and the Council of 14 April
2003 on the prohibition of organotin compounds on ships OJ L 115/1 of 9.5.2003
9. Regulation (EC) No 536/2008 of 13 June 2009 giving effect to Article 6(3) and Article
7 of Regulation (EC) No 782/2003 of the European Parliament and the Council of 14
April 2003 on the prohibition of organotin compounds on ships and amending that
Regulation OJ L 156/10 of 14.6.2009
10. IMO Resolution MEPC104(49) adopted 18 July 2003 Guidelines for Brief Sampling
of Anti-fouling System of Ships, MEPC 49/22/Add.1
11. IMO Resolution MEPC105(49) adopted 18 July 2003 Guidelines for Inspection of
Anti-fouling Systems on Ships, MEPC 49/22/Add.1