Call for Clarity on IMO Sulphur Cap Enforcement

By Alvin Forster

While the International Maritime Organization’s (IMO) 0.50 percent sulphur cap on marine fuels has been successful from a safety perspective, complying with the regulation has proved a headache for many shipowners. The cap on fuel sulphur content was met with some predictions of vessels suffering loss of electrical power or losing propulsion in busy shipping lanes. Thankfully, widespread problems never materialized, and the industry came through the transition period largely unscathed.

However, concerns over the poor stability characteristics of some of the new very-low-sulphur fuel oils and the incompatibility between stems were realized, and operational issues that were perhaps not as well foreseen, such as engine liner wear, also arose.

North has dealt with numerous claims and disputes related to these issue, but nothing has kept the club busier than reports of potential marginal noncompliance.

Imagine the following scenario: A vessel requests the delivery of compliant bunkers, and the party ordering the bunkers, the owner or time charterer, specifies compliant fuel to be supplied to the vessel. Upon completion of bunkering, the supplier issues a bunker delivery note (BDN) declaring the fuel to be compliant (0.50 percent sulphur or less). The receiving vessel then sends a sample drawn during bunkering to an independent laboratory where it is tested against ISO 8217-listed parameters for commercial purposes.

Days later, the test result returns a sulphur content between 0.51 and 0.53 percent, indicating noncompliance with the limit specified in MARPOL Annex VI. What happens next? Are the bunkers off specification, noncompliant or both? Can the fuel be used? Who should be notified? Will the vessel be targeted by the authorities, and what action will they take? Should it be debunkered? This is where confusion reigns, leading to commercial disputes and, in some cases, debunkering.

According to existing industry guidance issued by organizations such as IBIA and CIMAC, if the receiving vessel’s own sample returns a result of 0.53 percent or less, a claim cannot be brought against the supplier. The rationale behind this cut-off point is “single-test reproducibility,” which describes the allowance applied to a lab test result that recognizes the limitations in accuracy of a single test.

If the vessel’s sample test result is over 0.53 percent, a claim against the supplier may be initiated. The supplier’s retained sample is usually contractually binding and therefore tested. If this test returns a result of 0.51 percent or more (single-test reproducibility is not applied at this stage), it is deemed off spec for commercial purposes. However, these are only guidelines, and a supplier may have different terms in their bunker

If the receiving vessel’s own sample returns a result above 0.50 percent, it does not automatically mean that the bunkers are noncompliant with MARPOL. Noncompliance can only be confirmed by testing the MARPOL-delivered sample, the MARPOL in-use sample or the MARPOL onboard sample. Commercial samples, such as the vessel’s own sample, should not be considered definitive evidence of noncompliance. However, few administrations have confirmed this explicitly, and experience suggests that some port state control functions are taking a contrary view.

Port state control officers in some countries are not applying the single-test reproducibility tolerance to in-use samples during their inspections, as it is not mandatory for them to do so, but the IMO is promoting its early adoption. Again, the lack of a consistent approach by port states around the world causes confusion for calling vessels.

In general, shipowners have been advised to follow the notification process in MEPC.321(74) 2019 GUIDELINES FOR PORT STATE CONTROL UNDER MARPOL ANNEX VI:

“… if the BDN shows compliant fuel, but the master has independent test results of the fuel oil sample taken by the ship during the bunkering which indicates noncompliance, the master may have documented that through a notification to the ship’s flag administration with copies to the competent authority of the relevant port of destination, the administration under whose jurisdiction the bunker deliverer is located and to the bunker deliverer.”

However, as the document’s title suggests, this is the IMO guidance for port state control. There is no published guidance to shipowners, and the statement “the master may…” implies that the notification process is voluntary and there is no obligation to notify the referenced parties.

There is also uncertainty as to what is meant by “indicates noncompliance”. Is the IMO’s intention that the notification process applies when the ship’s sample test result exceeds 0.50 percent, or is it 0.53 percent to allow for single-test reproducibility? Further clarification on the notification process is needed.

It is important not to disincentivize the reporting of potentially noncompliant fuel, as the IMO GISIS module, which allows flag states to report on behalf of shipowners, relies on these reports to identify suppliers that provide noncompliant fuel. It stands to reason that if PSC targets a vessel for inspection following the submission of a voluntary notification, it is likely to disincentivize reporting.

How port state authorities around the world are acting upon these notifications is not yet known, and as COVID-19 influences their current inspection protocols, we may not be seeing an accurate picture of how this will be dealt with in a post-pandemic world. However, the European Maritime Safety Agency Inspection Guidance states clearly that EU ports will target a vessel for inspection if the owner submits a voluntary notification of potential noncompliance.

Marginally off-spec bunkers are causing lengthy disputes and, in some cases, debunkering. Considering the carbon footprint of the debunkering process, these developments could be considered contradictory to established industry environmental goals. Shipowners need to feel sure they understand the rules and confident of their consistent
enforcement worldwide.

Learn more about the IMO 2020 sulphur cap at:

Alvin Forster is a North P&I Club loss prevention executive.

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