Client Alert:

Marine Pollution Fines More Than Quadrupled for 2019

Marine Pollution Fines More Than Quadrupled for 2019

Pursuant to Article 20 of the Turkish Environmental Code no. 1983 (“Code”), fines are imposed on vessels for causing pollution in Turkish waters through discharge of petroleum products, dirty ballast, garbage and sewage into the sea. The quantum of the fines are determined by a tariff that is revised annually, to be effective from the first day of that year. However, the Turkish government updated the fines a few weeks early this year and introduced a major increase. Most of the administrative fines in incidents of marine pollution were increased four-fold and in some categories by an even larger margin. To give our readers an idea about the significance of this update, last year’s increase was a mere 14% which is incremental compared to this year’s.

The main reason for the Turkish government’s aim in introducing a major increase seems to be adjusting the fines with regard to the recent devaluation of the Turkish Lira in order to maintain the deterrence of fines in the prevention of marine pollution.

Different from previous years, the increased fines are applicable as from the date the amendment was published in the Official Gazette, i.e. 10 December 2018. Please read on for details on the updated fines.

I. Tariff

1. Petrol and petroleum products discharged by tankers:

Up to 1,000 (inclusive) gross tons (GT) TRY 400 per GT (up from TRY 97.20 per GT)
Between 1,000 and 5,000 (inclusive) GT An additional TRY 100 per GT (up from TRY 24.24 per GT)
Over 5,000 GT An additional TRY 10 per GT (up from TRY 2.32 per GT)

2. Dirty ballast discharged by tankers:

Up to 1,000 (inclusive) GT                         TRY 72.88 per GT (remained unchanged)                            
Between 1,000 and 5,000 (inclusive) GT An additional TRY 14.54 (remained unchanged)
Over 5,000 GT An additional TRY 2.32 per GT (remained unchanged)

3. Petrol/petroleum products and dirty ballast discharged by vessels or any other marine vehicles:

Up to 1,000 (inclusive) GT                        TRY 200 per GT (up from TRY 48.58 per GT)                         
Between 1,000 and 5,000 (inclusive) GT An additional TRY 40 per GT (up from TRY 9.67 per GT)
Over 5,000 GT An additional TRY 10 per GT (up from TRY 2.32 per GT)

4. Garbage and sewage discharged by vessels or any other marine vehicles:

Up to 1,000 (inclusive) GT                        TRY 100 per GT (up from TRY 24.24 per GT)                          
Between 1,000 and 5,000 (inclusive) GT An additional TRY 20 per GT (up from TRY 4.78 per GT)
Over 5,000 GT An additional TRY 10 per GT (up from TRY 0.90 per GT)

There is no clarity on why the fines applicable the discharge of dirty ballast from tankers have remained the same where all of the other categories were updated. It would not be unexpected to see an update to the said category by a further amendment published towards the end of this month.

II. Heavier Fines in Qualified Incidents

Another significant amendment is the addition of the rule that the fines set out above shall be applicable three-fold if the liable party is an “institution, organisation or a business”. Although the terms are vague, it is bound to include ship-owning companies and companies that charter ships.

It has remained unchanged that vessels discharging hazardous substances are fined ten times the amounts indicated for petroleum products in tariff 1 and 3 above. Vessels which pollute the environment repeatedly also face heavier fines: first recurrence within 3 years will lead to the doubling of the fine whereas second and further recurrences will lead to a 200% increase. On the other hand, if the vessel manages to remove the pollution by her own means, only 1/3 of the above rates are imposed.

III. Payment and Objection

The fines issued by the authorities due to an alleged pollution must be paid or sufficient and suitable security must be put up immediately and in full. Otherwise the vessel is arrested. If the fine is paid within 30 days, a 1/4 discount becomes applicable.

Objections against fines can be filed with the Administrative Court within 30 days of notification. It should be taken into consideration that an objection does not stop the collection of the fine. Therefore, the usually followed course of action is to pay the fine within 30 days benefitting from the 1/4 discount and then filing an objection with the Administrative Court if there are sufficient grounds to do so. We must point out that challenging pollution fines may be difficult because the applicable legislation provides for a caveat which, in practice, allows the authorities to impose fines without verifying the existence of the pollution with sufficient evidence.

IV. Criminal Charges and Other Additional Fines

Authorities that detect a pollution incident are under an obligation to report the incident to the public prosecutor immediately. Subsequently, the public prosecutor will commence a criminal investigation into the incident which is usually followed by criminal proceedings brought against the master of the vessel.

In addition to the administrative pollution fines set out above, Harbour Masters can impose a fine of up to TRY 5,000,000 for pollution caused by a vessel that is sailing in Turkish territorial waters in circumstances that require emergency intervention due to collisions, breakages, fires, explosions or similar incidents. This type of fine is different from the tariff above based on tonnage since the fine to be imposed by Harbour Masters is not subject to a tariff and the Harbour Master has total discretion in determining the quantum of the fine up to the TRY 5,000,000 limit.

In recent years we have seen stricter measures employed by the authorities in the application of environmental protection measures against pollution. At ErsoyBilgehan, with our vast experience in environmental law and pollution incidents, we advise and represent our clients in objections against administrative fines as well as in criminal proceedings in relation to the same.

Please do not hesitate to contact us if you have any queries.


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