Ballast Water Sampling, Ukraine *Update*

In July 2019, a vessel was carrying out deballasting operations when the ecological inspectors alleged pollution and issued the vessel with a substantial fine and a detention order, which also included a fine issued direct to the ship’s master. ANK Law Office acted on behalf of the master, arguing the inspectorate’s actions were unlawful. The court agreed with their position and ruled in the master’s favour. Then, acting on behalf of the shipowner, a successful claim was made against the inspectorate to return the funds paid in fines. This led to an appeal by the inspectorate. However, in May 2021 the Fifth Appeal Administrative Court (Odesa, Ukraine) declined the appeal claim submitted by the ecological inspectorate against the first instance judgment.

ANK Law Office advise that this case concerned the largest financial amount awarded by the court in a shipowner’s favour in ballast-related cases, and that this is the first case where the appeal court awarded in favour of the owners.

3 February 2020

Further to the below reported issues regarding the sampling and testing of ballast water in Ukraine and the historic concerns on the actions by ecological inspectors, the Ukrainian Government has announced the closing down of the ‘State Ecological Inspection for Protection of the Black Sea’.

Local correspondent Dias Consulting reports that responsibilities on ballast water quality will be shifted to regional departments. Svertilov Marine Consulting has added that this will also be under the supervision of the Ukrainian Ministry of Environment, also advising that shutting down the current inspectorate will be a lengthy and complex process, so it may remain in operation during this period.

12 September 2019

The sampling and testing of ballast water in Ukraine has been an area of uncertainty and confusion for several years. Previous updates (below) have highlighted concerns on the actions by ecological inspectors. To tackle this, the Ukrainian government have published Resolution No.828 “Taking Samples of Water and Conducting its Analysis”.

Local correspondent Dias has received advice on this new regulation from Ukrainian lawyers ANK. This is summarised as follows:

• Taking of samples should be conducted by the ecological inspectorate in the presence of the representative of the Maritime Administration, the Master of the vessel (or another authorized person) and the maritime agent (upon his consent). Therefore ecological inspectors can no longer attend unaccompanied.
• Onboard sampling location should be determined by the representative of the Maritime Administration in agreement with the ecological inspector and the Master.
• Sample bottles should be closed and sealed with special tags indicating the name of the vessel, date and time of taking samples, place of taking samples, number of sample and signatures of the representative of the Maritime Administration, the ecological inspectorate and the Master (or other authorized
  person).
• One sample shall remain on board, the second (‘control’) sample should be delivered to the Maritime Administration and the third sample should be delivered to laboratory.
  The control sample (Maritime Administration) shall only be held for 24 hours, after that it should be destroyed.

23 July 2019

Ukraine correspondents Dias have reported that on 13 July 2019, the Head of the Ukrainian Sea Ports Authority (USPA) was instructed by the country’s new president to ban ecological inspectors from entering ports for two months.

This is a temporary arrangement pending a more permanent solution of the ongoing problems that arise through the attendance of ecological inspectors.

Correspondents further advise that since the announcement they have not received any reports of ecological inspectors attempting to board vessels to take samples of allegedly ‘dirty’ ballast for analysis.

22 May 2019

It has been reported that the restrictions on the discharge of segregated ballast water have been lifted in Ukraine.

North’s Correspondents Dias explained that this action by the Ukrainian government is an effort to abolish unauthorised ecologists from enforcing fines on vessels within Ukrainian ports.

The Ukrainian Cabinet of Ministers adopted Resolution No 367 which came into force on 28 April 2019. The regulation states that the State Ecological Inspection is forbidden to execute control of the control of segregated ballast. This will be until the Government adopts special procedures to regulate the conduct of ballast water inspections.

The procedure for detecting pollution as a result of discharging ballast has also brought in line with international regulations.

Once the special procedures are adopted, the State Ecological Inspection will be entitled to check the level of ballast water pollution only in the comparison with background figures of the port. The method previously used was to compare the samples against a fixed pollution index and for suspended particles.

Despite the new position, North’s correspondents also advise that ecology inspectors continue to carry out unauthorised ballast water inspections. They further advise that if a Ukrainian ecology inspector attempts to detain a vessel as a result of a ballast water inspection they should immediately seek the assistance of local P&I representatives.

15 November 2018

To optimise customs procedures when moving goods across the Ukraine border, a “single window” mechanism has been adopted.  This new mechanism is covered under a new law “On Amendments to the Customs Code of Ukraine” and impacts ballast water sampling by ecological inspectors.

The “single window” system requires custom authorities – which includes ecological inspectors – to interact via a single website. Ecological inspectors who wish to board a vessel to carry out ballast samples will submit their request via the “single window” and will need to complete the inspection within a specified timeframe.

The new regulation aims to simplify a vessels’ call to port and address any irregular practices by ecological inspectors.

16 July 2018

Ukrainian ecological inspectors are now granted the authority to board vessels and take samples of ballast water. As such there has been an increase in the number of enquiries received regarding this matter.

North’s correspondent in the Ukraine has issued the following advice based on recent ballast water sampling inspections:

• Ensure that a ballast exchange is completed in the Black Sea while the vessel is still on passage.
• Allow the inspectors access as required to the vessel.
• Do not allow samples to be taken of any segregated ballast.
• Allow the inspectors to review records of ballasting operations if they request to see them.
• Never leave the inspector alone, ensure a member of the ship’s crew is present at all times.
• There are reports of inspector’s claiming to have spotted pollution in the harbor in and around the vessel. Should the Master have such an issue with the attending surveyor he should contact North or their correspondent immediately.

The Master should then inform the inspector that they will arrange a joint survey of the waters around the vessel alongside a port state control representative, P&I representative and the ship’s officers. Should any evidence of pollution be noted at this time then samples from the ballast tanks will be permitted with all parties present.