Beaching of vessels – risk of criminal liability for contributors
We have previously described international set of rules governing the recycling of ships. The IMO initiative, The Hong Kong convention, is not yet in force. However, national legislation already contains provisions of relevance when it comes to sailing ships from Norway to scrapping in countries outside the European Economic Area (EEA).
The pollution act article 79, 3 paragraph, states that the illegal handling of waste may be punished with a fine or imprisonment for a time of maximum two years. The key criminal liability term in the provision is to export (or import) waste contrary to the regulation on handling of waste (Avfallsforskriften, Regulation 2004-06-01-930). This regulation has its basis in Regulation 1013/2006 of the European Parliament and of the Council of 14 June 2006 regarding shipments of waste (with subsequent changes and amendments).
It is important to note that it is not the bunkers onboard, the cargo etc., but the ship itself that is considered to be the waste according to Avfallsforskriften article 13-1 and the EU Regulation 1013/2006. This implies that export of a ship from Norway is only allowed when the ship will be recycled at pre-approved facilities, which are required to comply with certain HES-standards. The EU has already approved several yards which comply with the rules.
A line must be drawn between vessels that are fully operational and seaworthy vessels with class and certificates maintained, and on the other hand vessels which are to be considered as waste. This may be difficult some times. Will a single voyage with ordinary cargo, from Norway to i.e. Pakistan be sufficient to prove that the vessel is still a vessel and not waste? What if the destination in Pakistan is a renowned destination for beaching of ships? And what if the vessel is sold just prior to the voyage from Norway; can the previous owner be held criminally liable if the new owner wants to scrap the ship outside the facilities that the EU has pre-approved?
It should also be noted that the Norwegian Penal Code article 15 sets up a general criminal liability for anyone who contributes to the commitment of a crime. This may also cover to impel somebody to commit a crime. Both individuals and companies may be held liable. According to the Penal Code article 27 and 28, a company may be punished for criminal offences committed by their employees or others acting on behalf of the company.
The law does not state clearly what kind of contribution that will be sufficient in this regard. What about i.e. an entity that issues insurance for the voyage – will that constitute criminal contribution? The significance and importance of the contribution will probably weigh heavily when the Public Prosecution Authority decides on indictment for criminal contribution. If the Public Prosecution Authority decides to indict, it will rest with the courts to draw the line. The Norwegian maritime community will undoubtedly be watching with great interest the outcome of this case.