Judge finds that in a case which dates back to late 2011 the de-bunkered fuel was not off-spec and cannot be defined as waste, the lawyer acting for the vessel operator tells Bunkerspot.
The Dutch authorities’ hard-line approach to what constitutes waste under the terms of a number of European directives (notably Directive 2006/12/EC on the shipment of waste and Directive 2008/98/EC) has led to a number of cases involving debunkered fuel being brought to court in the Netherlands in recent years.
And in May 2012, the Dutch authorities’ very strict interpretation of ‘waste’ in relation to marine fuel hit the headlines when law enforcement and environmental task forces carried out a series of raids on bunker vessels suspected of blending ‘hazardous substances’ into fuel at the Port of Rotterdam.
Since then, the port has gained a reputation as being a location where it is perhaps inadvisable to engage in ‘de-bunkering’ operations for fear of falling foul of over-zealous authorities.
The latest court judgment relates to a case in which a parcel of fuel was debunkered on 18 October 2011, and involves a vessel operator (represented by Reinier van Campen of Wiersma Mensonides), the purchaser of the debunkered fuel, and a local agent who assisted the vessel operator.
The vessel had originally taken on 200 tons of RMG 380 cSt on 10 August 2011. The vessel operator subsequently debunkered around 40% of the original quantity. following filter clogging issues.
The local agent sought advice from the environmental authorities as to whether the debunkered heavy fuel oil would be classified as waste or could be resold into the market. The authorities subsequently contacted the Public Prosecutor, and during the debunkering process, the police arrived at the vessel and halted the operation.
A fuel analysis report issued on 13 August 2011 showed that the fuel was, in fact, on spec in accordance with ISO 8217: 2005.
According to Reinier van Campen, the vessel operator chose to debunker the fuel because filterering clogging issues limited the vessel’s intended range of operation; as such the fuel was removed for purely commercial reasons rather than being deemed to be off-spec.
On 7 June, the Court of Rotterdam finally delivered its judgment, finding in favour of the vessel operator and ruling that the debunkered fuel should not be considered as ‘waste’.
The court found that the fuel was on-spec; however – and, as van Campen emphasises, perhaps more importantly - it also decided that even if it had been deemed unfit for purpose it still could not have been classified as waste as it was subsequently resold into the market to be used as bunkers.
In this particular case, the original seller declined to accept return of the bunkers as they had been delivered ‘on-spec’. In thise event, the fuel was sold to another oil trader for subsequent resale as a marine fuel, but this did not affect the outcome of the proceedings.
The Public Prosecutor has meanwhile until 21 June to filed an appeal against the judgment, but van Campen sees the ruling as significant for the Rotterdam market: ‘This may be a first and clear sign that the new trend is more in favour of bunker suppliers and the previously “criminalised” debunkering may become more accepted again’.
However, the final conclusion to this case may still be some time away. In December 2013, the judgment of the European Court of Justice in a ‘waste’ bunkers case was heralded as a landmark decision. In this case, the Dutch authorities had ruled that a parcel of ultra light sulphur diesel, lifted by Shell Netherlands for delivery to Shell Belgium and subsequently found to be off-spec due to contamination caused by improper cleaning of the bunker tanks, should be classed as waste. The ECJ, however, decided that this was not the case, as Shell had shipped the fuel back to the Netherlands with the intention of reselling after blending.
In spite of this nominal ‘victory’, however, the case is still lodged within the legal system as it has been referred back to the Dutch court where it is now the subject of an appeal. A date has yet to be set for the hearing.