Local authorities have increasingly exercised their power to
enforce local regulations concerning waste disposal and broadened the
responsibility of vessels in this regard. It has become common practice for
local authorities to request the compulsory discharge of waste from vessels,
even if this action appears to go against commonly accepted international law
that is binding in Argentina.
Many shipowners are concerned with the fact that inspectors are
boarding vessels at berth and requesting that they discharge waste due to
"deficient sanitary conditions" even if the vessels have a
"garbage management plan" under Annex V of the International
Convention for the Prevention of Pollution from Ships (the MARPOL Convention).
This situation is exacerbated by the fact that most of Argentina's up-river
port terminals, if not all, have no facilities to receive waste from vessels.
Cases have also been reported in which unrequested barges have waited alongside
vessels while inspectors were on board to verify their waste storage rooms to
put pressure on the master to undertake waste discharge.
Argentina is party to the MARPOL Convention and hence its revised
Annex V (as per resolution MEPC.201(62)) should be followed in Argentine ports.
In contrast, local authorities have recently invoked a domestic regulation
(Regulation 714/2010) to inspect vessels and in most cases, if not all, have
required waste discharge.
From a phytosanitary perspective, local authorities other than the
Coastguard can inspect ships and check whether they comply with local
regulations on organic residues, but they do not have the power to inspect
other conventional types of waste (eg, plastics or domestic or hazardous
waste). This has caused a conflict of jurisdiction between local authorities –
namely, the National Service of Agri-Food Health and Quality (SENASA), as the
phytosanitary and zoosanitary authority, and the Coastguard as the primary
maritime authority in Argentina.
According to Article 3.13.3 of Regulation 714/2010:
SENASA in its capacity of enforcement authority of the "Plan
Nacional de Residuos" (National Garbage Plan) may require the discharge of
garbage according to the provisions of this regulation when situations
and health reasons so request. If the authority of the vessel or the local
agency refuses to comply with the above, a written record must be issued and
this shall be informed to the competent authority of the
jurisdiction where the vessel is in order to comply with it and carry out the
discharge.
The MARPOL Convention takes precedence over Regulation 714/2010 in
the Argentine legal framework. Under the regulation's criterion, local
authorities can request the discharge of vessel waste for health reasons.
However, this rule is unlikely to be triggered if a vessel has a "garbage
management plan" pursuant to the revised Annex V of the MARPOL Convention.
If inspectors request that a vessel discharges its waste, the
master may refuse to do so. Under Regulation 714/2010, the master's refusal
must be certified and the competent authority must be informed in order to
comply with the regulation. In this regard, and although it is not mentioned in
Regulation 714/2010, the competent authority is the Coastguard, pursuant to
Article 2 of Act 24,089. The Coastguard must check whether the vessel complies
with the MARPOL Convention, normally in the context of port state control.
The current regulations are expected to be reviewed and the
existing scenarios in this regard could change if the government passes a bill
entitling only the Coastguard to inspect ships during inward clearance at
anchorage and before berthing.
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