The FONAR penalties are one thing that’s making shipowners go wary, so standard club has put forward an article on how to deal with it.
Let’s take a look at it.
How FONAR Is Enforced?
MARPOL has a wide sphere of application. Enforcement of MARPOL rests with either a contracting Flag State of a vessel (the Administration) or a contracting Port State Control
(“PSC”). MARPOL also imposes obligations on contracting states when it comes to enforcement and reporting on non-compliance, but specific enforcement measures and
policing are left to individual contracting states.
In instances where Compliant Fuel is not available, a PSC can request evidence outlining the vessel’s attempts made to obtain Compliant Fuel, including attempts made to source local alternatives, under Regulation 18.2 of MARPOL. The IMO has introduced a Fuel Oil Non-Availability Report (“FONAR”) to cater for this scenario which is to be sent to both the FlagS tate and the port of destination. However, the FONAR is not to be treated as an exemption and/or waiver for compliance because a vessel issuing a FONAR will still be in de facton on-compliance with MARPOL, which could lead to disputes under time charterparties where, for example, ship owners claim indemnities against any losses suffered from charterers under the BIMCO or INTERTANKO clauses.
Alternatively, where clauses are not incorporated, disputes are likely to arise as to whether a vessel is permitted to deviate from the contractual voyage to take on board compliant fuel (i.e. to avoid the risk of non-compliance) and what impact this could have on third party contracts of carriage and insurance coverage. Further, it must be remembered that, in the time charterparty context, most of the information and evidence required to complete a FONAR will be in the hands of time charterers, who may not provide this.
See further information here.
