Short answer. A discharge of oil or noxious substances from a ship exposes the master first: a fine of one hundred thousand euros for a deliberate discharge in breach of MARPOL, rising to ten years’ imprisonment and fifteen million euros for tankers and vessels of four hundred tons and above, and fines up to seven and a half million euros for a negligent discharge causing irreversible damage. Those penalties also reach the owner, the operator, their de jure or de facto directors and anyone exercising control over the management of the vessel, and the court may order the owner to pay the master’s fine. Beyond the territorial sea only fines may be imposed, and the vessel may be detained until a bond is posted. P&I clubs do not cover criminal fines.
A slick detected by satellite behind a vessel off Brittany, a deballasting seen by a customs aircraft in the Mediterranean, a bunkering spill in port: within hours the master is interviewed, the vessel is diverted or detained, the owner receives a demand for a bond and the P&I club a request for information.
Deliberate discharge: from one hundred thousand euros to ten years
The basic offence is defined by reference to MARPOL. A fine of one hundred thousand euros is incurred by any master guilty of a discharge of a polluting substance in breach of regulations 15 and 34 of Annex I, on the control of oil discharges, or regulation 13 of Annex II, on residues of noxious liquid substances carried in bulk (article L. 218-11 of the Environment Code). The provision targets deliberate operational discharge: pumping bilges, deballasting, discharging residues above permitted concentrations, outside the conditions of distance from the coast, speed and separating equipment laid down by the Convention. It requires neither an intention to pollute nor any damage: a non-compliant discharge is enough.
The scale changes with the vessel. The penalties rise to ten years’ imprisonment and fifteen million euros for the master of a tanker of less than one hundred and fifty gross tons, or of any other vessel of less than four hundred gross tons whose propulsion exceeds one hundred and fifty kilowatts (article L. 218-12), and to the same penalties for the master of a tanker of one hundred and fifty tons or more, or any other vessel of four hundred tons or more, as well as for the person responsible for operating a platform (article L. 218-13). In other words almost every commercial vessel, and a good number of large yachts, fall within the aggravated regime. Establishing the vessel’s category, by tonnage and power, is therefore part of the defence, and it is checked against the ship’s certificates.
Negligent discharge: fines scaled to the vessel and the damage
Unintentional discharge is also punished. A fine of four thousand euros is incurred by a master who causes a discharge of a polluting substance through imprudence, negligence or breach of laws and regulations, or who negligently causes a casualty resulting in pollution, or fails to take the measures needed to avoid it (article L. 218-19, I). That base figure rises to four hundred thousand euros where the offence is committed by a vessel in the article L. 218-12 category, to eight hundred thousand for the article L. 218-13 category, and to four and a half or seven and a half million euros where the offence causes, directly or indirectly, irreversible damage or damage of particular gravity to the environment. Where the offence originates in a manifestly deliberate breach of a specific safety or care obligation, or in gross negligence exposing the environment to a risk of particular gravity of which the offender could not have been unaware, imprisonment is added (article L. 218-19, II).
This is the regime of casualties: hull damage, collision, grounding, a bunkering error, failure of poorly maintained equipment. The defence is technical, bearing on the cause of the failure, on maintenance and on the measures taken after the event, and it draws on the ship’s investigations, class records and expert evidence. Two exceptions exist: a discharge made for the safety of the ship, for saving life or to combat pollution, under the conditions of MARPOL, is not punishable; and a discharge beyond territorial waters resulting from damage to the vessel is not an offence where all reasonable precautions were taken after the damage occurred to prevent or minimise it (article L. 218-20).
Who is prosecuted: from the master to the owner, and up to the charterer
The master is the first target, but not the only one. The penalties apply to the owner, the operator or their legal representative or de facto director, and to any person other than the master exercising, in law or in fact, a power of control or direction over the management or operation of the vessel, where that person caused the discharge or failed to take the measures needed to avoid it (article L. 218-18). The technical manager, the managing owner and the director of the owning company may therefore be prosecuted personally, and legal persons face the fine multiplied by five together with publication of the decision. The court may, having regard to the master’s working conditions, order that his fine be borne wholly or partly by the owner or operator, provided that party was summoned to the hearing (article L. 218-23).
The Erika judgment showed that the chain can reach further. The Cour de cassation upheld the conviction of the voyage charterer, whose vetting department had accepted a vessel it knew to be ageing, holding that the channelling immunity of the CLC Convention did not bar his criminal liability, nor his civil liability for negligence (Cass. crim., 25 September 2012, no. 10-82.938). Since then, any actor in the chain exercising effective control over the selection or operation of a vessel must assume he is exposed, and organise his vetting and compliance procedures accordingly.
The procedure: detection, custody, detention, bond
Discharges are detected by customs and navy aircraft, by the European CleanSeaNet satellite service and by port authorities, and the reports drawn up by authorised officers stand as evidence until the contrary is proved. The master is interviewed, often in police custody, sometimes through an interpreter whose quality determines the value of his statements. The vessel may be detained by decision of the public prosecutor or the investigating judge, at the owner’s expense, and the judicial authority may at any time order release against a bond whose amount it fixes; the detention decision can be challenged within five days before the liberty and custody judge (article L. 218-30). The bond, frequently several hundred thousand euros, is in practice provided by the P&I club as a bank guarantee, and its amount and the conditions for its return are the subject of the first negotiation.
Prosecutions fall to specialised coastal courts, at Marseille, Brest and Le Havre for mainland France, whose jurisdiction extends to the exclusive economic zone. Where the offence was committed beyond the territorial sea, only fines may be imposed (article L. 218-22), which makes the vessel’s exact position at the time of the discharge, established from AIS data and the ship’s records, decisive. The flag matters too: the United Nations Convention on the Law of the Sea allows the flag State, in certain conditions and within certain time limits, to take over proceedings begun by the coastal State for a discharge committed beyond its territorial waters, which has led to several cases being relinquished.
What P&I clubs cover, and what they do not
Protection and indemnity clubs cover the owner’s civil liability for pollution damage, clean-up and preventive costs, and the bonds required to release the vessel. They do not cover criminal fines imposed on the master, the owner or its directors, save in narrow and discretionary exceptions, and they exclude the consequences of a deliberate discharge.
An owner fined several million euros therefore bears it alone. That is why deliberate discharge cases are fought in the criminal courts with as much intensity as the great oil spills are fought in the civil courts, and why the defence must be organised from the first hour, independently of the club’s correspondent.
The civil side: CLC, Bunkers, the IOPC Funds and direct action
Compensation of victims follows a separate, international regime. For laden tankers, the 1992 CLC Convention makes the registered owner strictly liable for pollution damage up to a limit based on tonnage, with compulsory insurance and a direct action against the insurer; the 1992 Fund and the 2003 Supplementary Fund intervene above that. For other vessels, the 2001 Bunkers Convention imposes strict and joint liability on the owner, the bareboat charterer, the manager and the operator for pollution by bunker oil.
Victims, whether local authorities, sea professionals or subrogated insurers, must lodge their claims within the conventional time limits and before the designated courts. The interaction between this civil regime and the criminal proceedings is a recurring difficulty: channelling of civil liability onto the registered owner does not prevent criminal prosecution of others, as Erika confirmed.
The first hours, which decide the case
Four things must be done before the vessel leaves port or the master signs his interview record. Preserve the ship’s data: deck and oil record books, voyage data recorder, engine data and AIS records, whose absence or alteration is read against the owner. Obtain the authority’s findings: the report, aerial or satellite imagery, samples, and challenge at that stage the correlation between the slick and the vessel, which rests on drift models and chemical analyses whose limits are well known.
Frame the statements of the master and crew, who are entitled to a lawyer from the start of custody and whose first statements, made under pressure and sometimes poorly translated, shape the whole procedure. And coordinate owner, club and lawyer on the bond, so that the vessel sails without the security given prejudging liability.
How the firm works
For owners, managers and charterers, the firm assists the master and crew from the inspection or the moment of custody, coordinates with the P&I club and its local correspondent, negotiates the bond and challenges the detention, contests the findings on the vessel’s position, the origin of the discharge and the category of the ship, organises the technical expertise and conducts the defence before the specialised coastal court at first instance and on appeal.
For victims, it quantifies the loss, lodges claims with the owner, his insurer and the IOPC Funds, exercises the direct action and joins the criminal proceedings as a civil party. Based in Paris, the firm acts in all French ports, before the courts of Marseille, Brest and Le Havre, and works in English with owners, clubs and foreign counsel.
Is your vessel implicated in a discharge, is your master being interviewed, has a bond been demanded? The first hours count: contact the firm without waiting.
Frequently asked questions
What does a master risk for an oil discharge?
Up to one hundred thousand euros for a deliberate discharge in breach of MARPOL (article L. 218-11 of the Environment Code), and up to ten years’ imprisonment and fifteen million euros for tankers and vessels of four hundred tons and above (articles L. 218-12 and L. 218-13). A negligent discharge attracts fines from four thousand euros to seven and a half million, depending on the vessel and the gravity of the damage (article L. 218-19).
Can the owner be convicted instead of the master?
The penalties apply to the owner, the operator, their de jure or de facto directors and anyone exercising control or direction over the management of the vessel (article L. 218-18), and the court may order the master’s fine to be borne by the owner (article L. 218-23).
Can the vessel be detained?
Yes, by decision of the prosecutor or the investigating judge, at the owner’s expense; release may be ordered against a bond, and the detention decision can be challenged within five days before the liberty and custody judge (article L. 218-30).
Are pollution fines covered by P&I insurance?
No, save in narrow exceptions. P&I clubs cover civil liability, clean-up costs and bonds, but not criminal fines imposed on the master, the owner or its directors.
Can a charterer be prosecuted for pollution caused by the vessel?
Yes, where he exercised control or direction over the management of the vessel or was negligent. The Cour de cassation so held in the Erika case regarding the voyage charterer and its vetting department (Cass. crim., 25 September 2012, no. 10-82.938).
Further reading: marine pollution, marine pollution: who is prosecuted, a vessel detained in a French port.
Written by Hervé Guyader, avocat at the Paris Bar, doctor of law. This content is general information and is no substitute for advice on your own matter.