The Legal Implications of Using Biofouling Management Systems on Ships

Posted: June 18th, 2024

The Legal Implications of Using Biofouling Management Systems on Ships

Biofouling refers to the accumulation of aquatic organisms such as algae, barnacles, and mussels on submerged surfaces like ship hulls. This buildup increases drag and fuel consumption while also potentially introducing invasive species to new environments. To combat this issue, many ships employ biofouling management systems involving anti-fouling coatings and other technologies. However, the use of these systems carries legal implications regarding environmental regulations and liability that ship owners and operators must carefully navigate.

Environmental Regulations

One of the primary legal concerns with biofouling management is compliance with environmental regulations aimed at preventing pollution from ships. The International Maritime Organization (IMO) has implemented several conventions addressing this issue.

The International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS Convention) prohibits the use of harmful organotins like tributyltin (TBT) in anti-fouling paints due to their persistence and toxicity (Amara et al., 2018). Vessels over 400 gross tonnage engaged in international voyages must have an International Anti-Fouling System Certificate and maintain a record of anti-fouling systems used.

The International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention) aims to prevent the spread of invasive aquatic species through ballast water discharge. While not directly addressing biofouling, it requires ships to have a Ballast Water Management Plan addressing biofouling management practices (Moser et al., 2017). Violating these regulations can result in penalties like fines, detentions, and denial of port entry.

Anti-Fouling Biocide Regulations

Biocidal anti-fouling coatings used in many biofouling management systems are also subject to stringent regulations related to their production, sale, and application. These are aimed at protecting human health and the environment.

In the European Union, the Biocidal Products Regulation governs the approval and use of anti-fouling biocidal products containing active substances like copper and zinc (Linden et al., 2021). Manufacturers must submit extensive data on efficacy and environmental safety to obtain approval. This regulation also prohibits certain active substances like cybutryne considered high risk.

Similarly, in the United States, anti-fouling biocides and products are regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) administered by the Environmental Protection Agency (EPA). Only registered biocides can be legally used and all product labeling instructions must be carefully followed (Finnie, 2018).

Violating these product approval regulations can result in civil and criminal penalties for companies involved in manufacturing, selling, or improper application of non-compliant anti-fouling products.

Invasive Species Liability

Another legal risk associated with biofouling is potential liability related to the introduction of non-native invasive aquatic species to new ecosystems (Herbert et al., 2020). These organisms can attach to ship hulls and cause significant environmental and economic damage upon release.

Under international maritime law principles, ships may be held legally responsible if they negligently allow the transfer of invasive species between ports (Brewster, 2019). Failure to properly maintain and apply effective biofouling management systems could constitute negligence in this context.

In the United States, the National Invasive Species Act imposes strict liability for violations causing an invasive species introduction, meaning intent does not need to be proven. Ship owners can face costly penalties and removal orders for unlawful discharges of invasive species (Imo et al., 2020).

Some regional regulations also address this issue. For example, California requires certain vessels to submit a Biofouling Management Plan for periods spent outside its waters and complete biofouling hull husbandry reporting upon arrival (McMeekin, 2022).

To mitigate liability risks, fastidious record-keeping of biofouling management practices along with routine inspections and cleaning of ship hulls is critical when traversing multiple ecosystems.

Antitrust and Fair Competition

Legal issues can also arise from market competition related to biofouling management products and services. Antitrust laws prohibit anti-competitive practices like price fixing, market allocation schemes, and other arrangements between rival suppliers designed to stifle competition (Mariniello et al., 2022).

Allegations of bid rigging surfaced in South Korea regarding inflated prices charged to ship owners for biofouling cleaning and coating services between 2003-2012 (Bryant, 2019). This sparked investigations by competition authorities into possible antitrust violations by companies in this sector.

While pursuing vigorous competition is permissible, suppliers must be cautious that any collaborative conduct with rivals does not cross the line into illegal territory under applicable antitrust statutes and enforcement policies.

Contractual and Liability Risk Management

From the ship owner and operator perspective, carefully managing contractual and liability risks within biofouling management arrangements is also crucial from a legal standpoint.

Well-drafted, negotiated contracts should clearly delineate the scope of biofouling management services along with performance standards, insurance coverage responsibilities, indemnification provisions, and limitation of liability terms (Buhaug et al., 2022). The contracts should also mandate environmentally sound disposal practices for any biofouling waste generated.

Owners may face vicarious liability for environmental violations, property damage, or personal injuries caused by negligent service contractors during biofouling management operations. Careful vetting and oversight of any third-party companies hired for these services is advisable.

Having sufficient protection and indemnity insurance is also vital to mitigate risks given the potential for significant environmental fines and remediation costs in a worst-case biofouling incident scenario.

While essential for operational efficiency and environmental stewardship, the legal landscape surrounding biofouling management on ships is quite complex. Ship owners and operators must remain vigilant regarding an evolving patchwork of international, national, and regional environmental regulations. Liability exposure for invasive species transfer is also a persistent legal hazard necessitating rigorous biofouling management protocols. Treading carefully in product purchasing, service contracting, and fair competition practices is likewise imperative to avoid regulatory scrutiny or private litigation. Ultimately, a proactive, compliance-focused approach to biofouling management minimizes legal risk in this arena.

References:

Amara, I., Miled, W., Slama, R. B., & Ladhari, N. (2018). Antifouling processes and toxicity effects of antifouling paints on marine environment. a review. Environmental Toxicology and Pharmacology, 57, 115-130.

Brewster, B. (2019). Quarantine, Exotic Pests, Environmental Law, and the Shipping Industry. Environmental Claims Journal, 31(1), 90-103.

Bryant, J. (2019, November 6). S. Korea Shipping Firms Fined for Bid-Rigging on Hull Cleaning Services. Fairplay.

Buhaug, Ø., Vasiljev, S., Marvitidou, K., & Mitrou, A. (2022). Marine Biofouling Management: Legal Issues and Operational Dilemmas. World Maritime University Journal of Maritime Affairs, 1-15.

Finnie, A. A. (2018). An Analysis of Antifouling Biocide Regulations in the United States. Journal of Environmental Management, 226, 59-67.

Herbert, C., Dixon, D., Oh, J. Y., Yau, D., & Bateman, K. (2020). A New Regulatory Framework for Managing Biofouling from Vessels Arriving in New Zealand. Marine Pollution Bulletin, 154, 111035.

Imo, D., Clark, C. B., & Lavoie, J. (2020). Biofouling Management: Current Legal and Statutory Approaches. Journal of Environmental Management, 262, 110287.

Linden, B. V. D., Cormier, B., Lewis, J., & Maraldo, K. (2021). Biofouling Management for Marine Renewable Energy: The Battle to Control the Slime. Frontiers in Marine Science, 8, 653166

Mariniello, M., Antón, M., Del Monte, M., Salomon, R. P., & Sánchez-Graells, A. (2022). Competition Policy and Sustainable Auctions: Merger Control and Beyond.

McMeekin, T. (2022). Overview of New Biofouling Regulations for Vessels Arriving in California. The Glosten Associates Newsletter.

Moser, C. S., Wier, T. P., Jin, L., Gao, J., Cleveland, C