IBIA: IMO Fails to Improve Clarity of 0.50% Sulfur Limit Enforcement

The seventh session of the IMO's Sub-Committee on Implementation of IMO Instruments (III 7) has brought no further clarity regarding on what basis authorities can determine that a ship's fuel is non-compliant with MARPOL Annex VI sulphur limits.

IBIA had put in a paper, III 7/5/8, co-sponsored by Jamaica to III 7, seeking primarily to protect ships from unreasonable debunkering demands by relevant authorities, as there is presently room for doubt about on which grounds that may happen. (Click here to see the document).

Our submission urged member states to implement the amended sulphur verification procedures in appendix VI of MARPOL Annex VI, adopted by MEPC 75, to ensure consistent implementation of the 0.50% sulphur limit which has been in force since the start of 2020.

Appendix VI of the adopted amendment, "Verification procedures for a MARPOL Annex VI fuel oil sample" states that "The following relevant verification procedure shall be used to determine whether the fuel oil delivered to, in use or carried for use on board a ship has met the applicable sulphur limit of regulation 14 of this Annex."

Appendix VI goes on to provide two distinctly different procedures: Part 1 for the MARPOL delivered sample which it says "shall be used to verify the sulphur content of the fuel oil delivered to a ship" and Part 2 for in-use and onboard samples which it says "shall be used to verify the sulphur content of the fuel oil as represented by that sample of fuel oil at the point of sampling."

Part 2 of the verification procedure for in-use and onboard sample takes into account the inherent uncertainty of the sulphur test method by recognising samples as having met the regulatory requirement as long as the test result does not exceed the limit +0.59R – also known as the 95% confidence interval.

If those procedures were always followed, we would have clarity. However, there have been cases where ships have been required to debunker after reporting to authorities that they have received a test result from their own fuel oil testing programme against ISO 8217 parameters, on the ship's own sample, indicating a sulphur content marginally above 0.50%.

There have also been reports of authorities obtaining and testing in-use samples from ships and treating it as a non-compliant on the basis of a single test result above 0.50% sulphur, but within the 95% confidence interval, for example 0.51% or 0.52% sulphur.

For these reasons, our submission asked for assurance that port State control (PSC) authorities, if seeking to verify compliance with the 0.50% sulphur limit and the associated carriage ban, would follow the sulphur verification procedure in appendix VI adopted by MEPC 75. 

Debunkering should only be required when it has been established, beyond reasonable doubt, that a ship is carrying fuel oil that exceeds the 0.50% sulphur limit. This is why we also sought recognition that the 95% confidence principle should apply to fuel oil used and carried for use if, for any reason, an authority seeks to assess the ship's compliance on the basis of a MARPOL delivered sample only, without obtaining an in-use or onboard sample to verify the ship's compliance. This would provide the ship with the benefit of doubt against what remains a fairly arbitrary outcome, because a fuel which does in fact meet the limit may test marginally above that limit (as per 0.59R or 95% confidence limits).

However, we stressed that if the MARPOL delivered sample is above 0.50% sulphur, the fuel oil supplier would still be considered as not having met the requirement for the fuel as delivered, and could face enforcement action. The supplier does not get this "benefit of doubt" and therefore needs to use the limit minus 0.59R as the blend target to be 95% certain that a single laboratory won't return an analysis result that is fractionally above the limit. For a 0.50% sulphur limit, this means the suppliers blend target must be 0.47% sulphur or less.

Parties to MARPOL Annex VI have an obligation to "take action as appropriate against fuel oil suppliers that have been found to deliver fuel oil that does not comply with that stated on the bunker delivery note".

When the document was discussed at III 7, some delegations were of the opinion that asking for the outcome of testing a MARPOL delivered sample – in the case of the ship only – to be viewed in the same way as if an in-use or onboard sample had been tested, would interfere with the decisions made by MEPC on this issue and would lead to the use of fuels with 0.53% sulphur.

When IBIA pressed for clarity on the legal question as to what basis PSC might take enforcement action against the ship, the view was that the issues we raised in document III 7/5/8 concerning discrepancies in the enforcement of the 0.50% sulphur limit were not under the purview of the III Sub-Committee and should be referred to an appropriate IMO body.

We are disappointed that we could not get the legal certainty we were seeking, in particular regarding the basis for demanding debunkering of fuel that may, if tested again at a different laboratory, prove to be compliant given the inherent uncertainty of the test method.

Ideally, there should be legal certainty that PSC must verify the ship's non-compliance on the basis of obtaining and testing and in-use or onboard sample. However, we do not have that certainty.

While this uncertainty is not helpful for the industry, there are some positives. When speaking to member states about the issue prior to III 7, we found that many were supportive of the principle that debunkering should only be required when it has been established, beyond reasonable doubt, that a ship is carrying fuel oil that exceeds the 0.50% sulphur limit. Moreover, while some ships have faced debunkering demands that seem poorly justified, it does not appear to be widespread. Nevertheless, even a few such cases have caused considerable anxiety in the market.

On a final note, best practice for the bunker producer/supplier is to ensure that the product meets the specification limit with 95% confidence by using the limit minus 0.59R as the blend target, rather than the limit value. This should minimise the number of cases where a ship's own initial test result indicates potential non-compliance with the mandatory sulphur limits, and the subsequent concerns about what kind of enforcement actions the ship may face.