Wilful and serious

FINNISH law places strict obligations on shipowners, masters and crew to prevent pollution of the marine environment. In addition to the risk of monetary damages, shipowners also need to be aware that the master and crew of foreign vessels that pollute Finnish territorial waters face the risk of criminal prosecution.

When considering such potential criminal liability, the starting point is the Finnish Act on Prevention of Pollution from Ships (Ship Pollution Act), which prohibits the discharge of oil, oil-based substances, dangerous liquid substances, waste water and other waste into the sea. Section 28.1 of the Ship Pollution Act makes reference to Chapter 48, Sections 1-3 of the Criminal Code, according to which a person who wilfully or by gross negligence discharges such substances into the environment resulting in pollution, or in the risk of pollution, will be fined or subject to a prison sentence of up to six years. According to the legislator, although not expressly stated in the Act, a prison sentence is unlikely to be imposed for other than serious acts of pollution. If the pollution is caused by negligence, only fines may be imposed.

According to Section 28.2, any person who wilfully or negligently violates the Ship Pollution Act in a manner other than as stipulated in Section 28.1 will be subject to fines. However, according to Section 28.1, the Criminal Code may only be applied if the pollution is not caused by the negligence of a foreign vessel. According to the government bill, the negligence referred to in the cited stipulation in Section 28.1 includes gross negligence. By including this stipulation, Finnish legislators implemented the limitation found in Article 230 Paragraph 2 of the UN Convention on the Law of the Sea, which states, among other things, that only monetary penalties may be imposed with respect to violations of national laws for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea.

Therefore, if the act of pollution by a foreign vessel is wilful and serious, the Criminal Code is applied and the master and/or crew may risk a prison sentence of up to six years, in accordance with the UN Convention. If the act of pollution is wilful, but not serious, the Criminal Code is still applied, but only a fine may be imposed on the master and/or crew, also in accordance with the UN Convention.

Section 28.1 excludes the applicability of the Criminal Code if the act is not wilful. In such a case, Section 28.2 is applied, which guarantees, in accordance with the UN Convention, that the maximum penalty for polluting the marine environment is limited to a fine. Section 28.2, according to which only a fine may be imposed, is also applied if a leakage by a foreign vessel does not have any polluting effect and has not created any danger of such pollution, even if the act was wilful.

The Ship Pollution Act’s criminal sanctions were applied for the first time in 2002 in a case involving the leakage of toxic neonol as the result of an overflow during loading of a foreign chemical tanker in the Finnish port of Hamina. The court charged the second officer under Section 28.2. Chapter 48 of the Criminal Code could not be applied, even though the pollution had serious consequences for the marine environment, because the case concerned a foreign vessel, and the second officer had not caused the leakage wilfully. The second officer was fined for neglecting the supervision of the loading, which caused the poisonous leakage.

If a foreign vessel pollutes Finnish territorial waters, the master and/or crew will, therefore, only be liable to pay a fine, provided the act of pollution was not serious and wilful. If the act is found to be serious and wilful, however, the master and crew can potentially face a prison sentence.