Client Alert:

REVISED ENVIRONMENTAL MARINE POLLUTION FINES FOR 2020

REVISED ENVIRONMENTAL MARINE POLLUTION FINES FOR 2020

Pursuant to Article 20 of the Turkish Environmental Code no. 2872 (the “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. Different from the major increase imposed in December 2018, this is a mere adjustment of the fines for inflation that takes place every year.

The tariff below contains the updated rates for the year 2020 that are applicable as of 1 January 2020.

I. Tariff

1. Petrol and petroleum products discharged by tankers:

Up to 1,000 (inclusive) gross tons (GT) TRY 606.67 per GT (up from TRY 494.92 per GT)
Between 1,000 and 5,000 (inclusive) GT An additional TRY 151.67 per GT (up from TRY 123.73 per GT)
Over 5,000 GT An additional TRY 15.16 per GT (up from TRY 12.37 per GT)

2. Dirty ballast discharged by tankers:

Up to 1,000 (inclusive) GT TRY 110.53 per GT (up from TRY 90.17 per GT)                           
Between 1,000 and 5,000 (inclusive) GT An additional TRY 22.05 (up from TRY 17.99 per GT)
Over 5,000 GT An additional TRY 3.51 per GT (up from TRY 2.87 per GT

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

Up to 1,000 (inclusive) GT TRY 303.34 per GT (up from TRY 247.46 per GT)                         
Between 1,000 and 5,000 (inclusive) GT An additional TRY 60.67 per GT (up from TRY 49.49 per GT)
Over 5,000 GT An additional TRY 15.16 per GT (up from TRY 12.37 per GT

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

Up to 1,000 (inclusive) GT TRY 151.67 per GT (up from TRY 123.73 per GT)                          
Between 1,000 and 5,000 (inclusive) GT An additional TRY 30.34 per GT (up from TRY 24.75 per GT)
Over 5,000 GT An additional TRY 15.16 per GT (up from TRY 12.37 per GT)

II. Heavier Fines in Qualified Incidents

It should be noted that vessels discharging hazardous substances are fined 10 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.

An amendment introduced in December 2018 is still in place which stipulates that the fines set out above shall be applicable three-fold if the liable party is an “institution, organisation or a business”. This covers ship-owning companies and companies that charter ships.

In order to give our readers an idea of the severity of the fines, at the current rates, a 10,000 GT general cargo vessel -owned expectedly by a “company”- faced with an allegation of illegal discharge of dirty ballast would be levied with a fine amounting to TRY 1,865,232.51 which corresponds as per the current USD/TRY exchange rate to an amount exceeding USD 310,000.00.

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 to 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.

Even though authorities in principle accept P&I Club letters of undertaking to grant clearance to the vessel to sail, in practice, it may be difficult to meet the authorities’ demands in terms of the wording of the letters of undertaking as each Harbour Master implements different criteria. In this respect, it is of utmost importance to exercise extra care during the period of stay in Turkish ports and owners and their P&I Clubs/insurers are advised to immediately consult their correspondents and experienced shipping lawyers when faced with an allegation of marine pollution to ensure the swift handling of the procedures with the authorities.

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 in the tariff above, the Harbour Master may also 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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