Oil Spills and Other Marine Pollution

It is estimated that, every year, nearly 3 billion litres of waste oil reach the oceans – and it does not evaporate or get gobbled up by fish. Before we get all high and mighty about Texan oil wells in the Gulf of Mexico, apparently most waste oil in the ocean comes from us on land: oily storm water drainage from cities and farms, untreated waste disposal from factories and industrial facilities, and unregulated boating. Offshore drilling, and oil tanker spills contribute only 8% to the mess.1 It’s a lot of liquid pollution nevertheless: approximately twelve thousand Olympic swimming pools worth of pollution every year.

In South Africa, we are doing our bit with several statutes relating to the environment and particularly marine resources. The Marine Pollution (Control and Civil Liability) Act 1981 is one such statute. It falls under the authority of the Minister of Transport, and is aimed at protecting the marine environment from, and combatting pollution by oil and other harmful substances. Essentially (as its name suggests) it deals with the question of liability for conduct which causes pollution, and the measures, steps and obligations that can be imposed by the Minister on the masters and owners of the ships, tankers, and offshore installations that are involved. There are also criminal provisions.

A. Discharge of harmful substances

  1. The master of any ship, tanker or offshore installation (which I will refer to as a ‘vessel’) which discharges oil is guilty of a criminal offence unless:
    • it was necessary, or a reasonable step to take in order to secure the safety of any ship, tanker or offshore installation, or of human life; or
    • the oil escaped, and all reasonable measures were put in place to prevent, stop or reduce the spillage; or
    • the oil leaked, for reasons not caused by lack of care, and as soon as practicable remedial measures were put in place.2
  2. In the same circumstances, if the master is not also the owner of the vessel in question, then the owner also commits a criminal offence.3

  3. When any harmful substance is discharged from a vessel, the master (or any person he designates) must immediately report it to the principal officer at the nearest port in the Republic. The master commits an offence if this does not happen.4

  4. Where a ship or tanker is in the Republic’s internal waters, territorial waters, the exclusive economic zone, or – in relation to an offshore installation – the sea within the limits of the continental shelf,5 and sustains any damage which causes or is likely to cause a discharge of any harmful substance, the master (or any member of crew he designates) must likewise report the fact to the principal officer of the nearest port in the Republic.6 The master commits a crime if this does not happen.7

  5. Even if the ship or tanker is outside the prohibited area when it sustains such damage, he must make the report as soon as it enters the area, and the master will be guilty of a criminal offence if this does not happen.8

  6. If any vessel in the prohibited area has a harmful substance on board, whether as cargo or otherwise, it is a crime to make the vessel incapable of sailing or manoeuvring under its own power (except with authorization from the South African Maritime Safety Authority – known as SAMSA).9

B. SAMSA measures to prevent and remove pollution

  1. If any harmful substance is being discharged (or is likely to be discharged) from any ship or tanker, SAMSA can require the master and/or owner of the ship or tanker to take a variety of preventative measures. These include unloading the substance, moving the vessel, not moving it, sourcing services, and indeed anything SAMSA deems necessary. It is a crime not to comply with any such direction.10

  2. Where salvage operations are underway in such circumstances, those requirements of SAMSA are also binding on the salvor (i.e. the person doing the salvage). He also commits an offence if the requirements are not complied with.11

  3. If SAMSA is of the view that the master or owner of the ship or tanker would not be able to take such preventative measures, it can cause them to be done by others. It is a crime to hinder or interfere with anyone who then performs functions to achieve these steps.12

  4. SAMSA can also take measures like burning, destroying or disposing of the harmful substance. It can also cause steps to be taken to remove any pollution that has already taken place. To this end, it can order any person:
    • who is capable of supplying goods or services;
    • who is capable of manufacturing, producing, processing or treating any goods; or
    • who is the owner of, or has the power to dispose of any goods,

    which may be required, to supply or deliver same. It is a criminal offence not to comply with such a directive.13

  5. When this happens, SAMSA can appoint an independent public auditor to assess the cost of such goods or services. It is a crime to interfere with or hinder the auditor in his functions.14

  6. Where removal of pollution is taking place or is about to commence, SAMSA can order any ship or tanker to move, subject to such instructions as it may also give. The master commits an offence if he fails to comply with such instructions.15

C. Transfer of harmful substances

  1. The transfer of a harmful substance from one vessel to another within the prohibited area without authorization from SAMSA, and then otherwise than in accordance with the Act, is a criminal offence.16

D. Inspection and taking samples

  1. Any member of SAPS, the National Defence Force, or someone authorised by the South African Maritime Safety Authority can board a vessel in order to ascertain its compliance with the various laws and regulations. They can also enter upon any land, together with equipment, workmen and vehicles in order to assess compliance with legislation, determining pollution, erecting camps and temporary works, and so on. It is a criminal offence to prevent the entry or exercise of any such functions, or to hinder or obstruct anyone performing such functions.17

  2. That person can also take samples, and inspect the vessel and its records. It is an offence to hinder or obstruct the person who is carrying out these functions.18

E. Pollution safety certificates

  1. It is a requirement that any offshore installation be certified as to its pollution safety. It is a crime to operate an offshore installation without such a certificate, or to do so in contravention of any conditions specified in the certificate.19

  2. Section 2(1). 

  3. Ibid

  4. Section 3(1) read with section 3(4). 

  5. All of which are referred to in the Act as the ‘prohibited area’. 

  6. The report must contain a lot of detail – see section 3(2) of the act for the particulars. 

  7. Section 3(2) read with section 3(4). 

  8. Ibid

  9. Section 21(1)a read with section 30(1) (a) ii. 

  10. Section 4(1) read with section 30(1)(b)i. 

  11. Section 4(2)c read with section 30(1)(b)ii. 

  12. Section 4(2)a read with section 30(1)(c)i; see also section 22(1) read with section 30(1)(c)iv. 

  13. Section 5(3) read with section 30(1)(b)iii. 

  14. Section 5(6) read with section 30(1)(c)ii. 

  15. Section 6 read with section 30(1)(b)iv. 

  16. Section 21(1)b read with section 30(1) (a)ii. 

  17. Section 8(2). 

  18. Section 7 read with read with section 30(1)(c)iii. 

  19. Section 24(1) read with section 24(5).