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RULING 9 OF 2014 OF THE MARITIME DISCIPLINARY COURT OF THE NETHERLANDS IN CASE NUMBER 2014.V3 - HUMBERBORG As petitioned by: petitioner The Minister of Transport, Public Works and Water Management, now the Minister of Infrastructure and the Environment, in The Hague, represented by : first E.J. van Leeuwen, : currently M. Schipper, Shipping Inspector, Rotterdam, versus the person concerned D. T., lawyer: A. Jumelet, LL.M. 1. The course of the proceedings On 24 February 2014, the Maritime Disciplinary Court received a petition for a disciplinary hearing of the case against the person concerned as the chief engineer of the Dutch seagoing vessel Humberborg from E.J. van Leeuwen, Shipping Inspector in Rotterdam. The petition included eight appendices. The Disciplinary Court has notified the person concerned of the petition in a letter written in English, enclosing a translation of the petition with appendices written in English and has informed the person concerned of the right of appeal. On 22 May 2014 a statement of defence was received from the lawyer of the person concerned.

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The presiding judge stipulated that the oral hearing of the case would be held at 11.00 hours on 4 September 2014 at the offices of the Disciplinary Court in Amsterdam. The petitioner and the person concerned and his lawyer were summoned - in the English language - to appear at the hearing of the Disciplinary Court. The court hearing was held on 4 September 2014. M. Schipper, Shipping Inspector, appeared at the hearing for the petitioner. The person concerned appeared, represented by his lawyer, A. Jumelet, LL.M. A document (checklist, BDN [Bunker Delivery Note] was submitted at the hearing, against which the inspector has not lodged an objection. The lawyer has submitted and presented a written pleading, a copy of which is attached to the official report. 2. The petition The following forms the basis for the petition. On 12 October 2013 the Humberborg was anchored close to Piraeus, Greece. On that day oil pollution was caused during bunkering on board the Humberborg when the Humberborg's fuel tank overflowed during the bunkering process. The chief engineer was responsible for bunkering. The person concerned is charged with acting in breach of Section 4 (3) of the Dutch Maritime Crews Act: The captain and ship’s officers shall act on board in a manner befitting a good seaman with respect to the people on board, the vessel, its cargo, the environment and shipping. 3. The position of the person concerned Rendered in summarised and concise form, the person concerned has advanced the following arguments: (1) The "ne bis in idem" principle is invoked. He has been given an administrative fine of € 29,000 by the Greek authorities. This fine has been paid. Prosecution under disciplinary law is felt to be a case of double

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jeopardy. Although it is formally possible to prosecute under disciplinary law in addition to the administrative fine already imposed, it is unnecessary and should not take place. The petitioner should be declared inadmissible. (2) The person concerned has not acted culpably. He denies that he has failed to observe the principles of good seamanship. He has followed the prescribed "bunker and pumping procedures". The incident may have been caused by the formation of foam in the bunker oil as a result of the high pressure, the temperature and the quality of the bunker oil supplied, which could ultimately have caused the bunker oil to overflow. The person concerned has been a chief engineer for many years and this is the first time that he has been confronted with an incident whilst bunkering. The petition should be dismissed. (3) The proportionality and subsidiarity principles are invoked. The measure to be imposed should be proportional to the culpable act. The Greek authorities have already imposed a fine, which has already been paid. There are also mitigating circumstances. The person concerned took adequate measures to ensure that only a small quantity of bunker oil (approximately 250 litres) was spilt. Protecting booms had been placed in the water on the request of the person concerned, as a result of which the spill was restricted to a small area. The person concerned has been a chief engineer for many years and this is the first time that he has faced such an incident. 4. The assessment of the petition A. A 'statement of incident' dated 12.10.2013 by the captain of the Humberborg amounts, rendered in concise form in Dutch, to the following: The Humberborg anchored at the Piraeus roads at 6:20 hours local time on 12 October 2013. The bunker vessel "JET-XIV" moored alongside at 8:50 hours. All precautionary measures under the SOPEP [Ship Oil Pollution Emergency Plan] were put in place. It was possible to communicate with the bunker vessel and also on the vessel with the supervising engineering on deck and with the chief engineer. Bunkering began at 9:20 hours. At 11:00 hours the HFO overflowed from the 'air head' tank de-aerator of the cross

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tank on the port side, and the captain noticed this from the bridge. He immediately contacted the bunker vessel and pumping was stopped after three seconds. The crew took measures against the spillage of fuel overboard. The area of the spill was restricted by means of a floating barrier. The port authorities were alerted and were asked for assistance. An oil control vessel arrived to clear up the oil spill. C. A statement of the person concerned in the log book dated 12/10/2013 and rendered in concise form in the Dutch language includes the following information: During the final stage of bunkering HFO from the "JET-XIV" there was an overflow from the 'air-head' tank de-aerator of the cross bunker tank on the port side. Once the tank had been closed its level was checked and it was found to contain 72 m³. When checked two hours later the amount was 71 m³. This tank was completely empty when bunkering began. The overflow alarm was triggered as soon as the tank overflowed. The bunker vessel had not provided an emergency stop button for the pump. According to the BDN 140 MT or 143 m³ of HFO was to be received at a temperature of 15°C, but the temperature during bunkering was much higher. According to the person concerned the overflow resulted from a combination of the following causes: the pumping rate and the pumping pressure in the final stage of pumping were too high, which could probably have led to foam forming, the high temperature of the HFO, the limited response time of the overflow tank alarm after being triggered, the absence of an emergency stop button and a list to port. It is also possible that the tank table was incorrect. C. The engine room log states the following (p. 009): Bunkering; 144 m³ LS HFO 0.96% S;66 m³ HS HFO 2.6% S; 28 m³ MGO. D. The "Bunker and pumping procedures" for vessels of the H-series of Wagenborg Shipping B.V., the shipping manager of the Humberborg, are as follows.

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1. Responsibilities (..) Chief engineer: Person in charge, supervising the bunker operation and responsible for: (..) Putting the scupper plugs* (..) Taking tank soundings* (..) The availability of a stand-by at the bunkerstation in the engine room and one at the manifold during bunkering (..) The *-marked duties may be delegated to the 2nd/3rd engineer or the fitter. 2. Checklist The chief engineer sees to it that the checks as mentioned in: •this chapter (initial preparation, prior to bunkering, during bunkering and on completion of bunkering) •the form Oil transfer checklist are carried out. 3. Initial Preparation (..) Empty the overflowtank (..) Establish common, communication link between bunkering stations, duty engineer and engine room (..) Reconfirm space remaining in all bunker oil tanks to be filled; Take soundings of respective tanks to be filled prior commencement of bunkering; Check all bunker tank high level alarms are functioning; 4. Prior to bunkering (..) Discuss bunkering plan with supplier face to face; Discuss vessel's emergency response procedures with supplier; Discuss supplier's own emergency response procedures; Establish communication link between vessel and supplier; Agree signalling system with supplier: commence pumping, reduce pumping rate, cease pumping, emergency stop; Agree with supplier the quantity of oil to be pumped on board; Agree unit of measurement (metric tonnes, cubic metres, barrels, etc.) 5. During bunkering; The person in charge is at the site of the transfer and immediately available to the transfer personnel; He/she has in his or her possession a copy of this specific procedure and sees to it that the transfer operation is conducted accordingly; Commence bunkering at minimum pumping rate; monitor supply line pressure (..) Check temperature of fuel delivered; Take soundings/readings of tanks to be filled in regular short intervals; Check pumping rate; Reduce pumping rate and/or open next tank before topping up (..) Ensure sufficient ullage in final tank for draining/line blowing; Notify supplier when final tank is reached; Give supplier timely

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warning to reduce pumping rate; Give supplier timely warning to stop pumping. (..). 8. Ship specific information HFOMax quantity rate to bunker max 200 m³/hour; Max bunker pressure 3,0 bar; Maximum ordering 90% of the total capacity of the bunker tanks;(..) Content LB tank P 69,2 m³; Content LB tank SB 69,2 m³; Content CB 1 tank P max 73,313 m³; Content CB 1 tank SB max 68,864 m³. E. An "oil transfer checklist" dated 12.10.13 submitted by the person concerned with regards to the bunker operation in question and signed by the person concerned contains the following information: Total quality to be pumped 238 cbm; Max pump rate and max pumping pressure agreed 150 cbm/h Max pumping pressure agreed 2.5 bar. With the exception of the question 'is emergency stop bunker barge working' all of the stated questions have been ticked 'yes'. Questions including 'are all items carefully checked' have been answered in the affirmative. The information in the checklist under 'vessel soundings before/after' includes the following: - Cross bunker tank port side with a maximum content of 73.3 m³ was empty prior to bunkering and contained 72 m³ after bunkering, so that 72 m³ was received; - Cross bunker tank starboard side with a maximum content of 68.8 m³ contained 6 m³ prior to bunkering and 67 m³ after bunkering, so that 61 m³ was received; both tanks were subject to an hourly pumping rate of 150 m³. F. A "delivery receipt" submitted and signed by the person concerned (referred to below as the BDN - Bunker Delivery Note) contains the following information: Delivered to the Humberborg:

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IFO [HS], 2.26 S, density 15° 0.9904, temperature 15°C, 66,000 litres, 65.366 mt IFO LS, 0.96 S, density 15° 0.9828, temperature 15°C, 143,000 litres, 140.540 mt Gasoil, temperature 15°C, 28,000 litres, 24,035 mt. G. A "decision" of "the central harbour master of Piraeus" dated 22 November 2013, rendered concisely in the Dutch language amounts to the following. On 12 October 2013, D. Teplychuk, chief engineer on the Dutch ms. Humberborg, failed in his duty to take all appropriate measures to prevent the sea from being polluted, which resulted in a quantity of approximately 300 litres of MDO flowing into the sea (over a surface area of 200 m²) during the bunkering of that vessel from the bunker vessel "JET XIV". The defences put forward by D. Teplychuk against this were considered insufficient and unfounded. His conduct constitutes a violation of Sections 3 and 4 of the Greek presidential decree 55/98, which is rendered punishable in Section 13 of that decree. The decision imposes a fine of € 29,000 jointly on both D. Teplychuk and on Wagenborg Shipping B.V., acting as the manager of the vessel. H. Rendered concisely, the person concerned made the following statement at the hearing of the Disciplinary Court. I joined the vessel on 4 October 2013. I am very familiar with the "Bunker and pumping procedures" and the responsibilities they entail, the document is displayed in the engine room. I have worked at Wagenborg for two years and had also sailed on a sister ship of the Humberborg. I filled in the "oil transfer checklist", a copy of which is submitted to the Disciplinary Court, together with a copy of the BDN that I signed. I have also entered the quantity of bunker oil in the engine room log under 'Bunkering' in the engine room log (on page 009). Prior to bunkering it was established by gauging that the tanks intended to take on HFO LS (Low Sulphur) were empty. I knew that it was not permitted to order more than 90% of the capacity of the tanks and I

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also knew that the captain had in this case ordered more than 90% of the capacity of HFO LS. This meant that the ordered quantity fit in the tanks, but that the 10% margin was not secured (for all tanks). I discussed this with the captain. I had ordered the HFO LS with the captain in tons: 140 mt. I told the captain that I needed 140 mt for three days. Bunkering was supposed to be taking place three days later; a calculation of the amount of oil that would be used in that time was made (30 tons). Despite that there was now sufficient capacity in the tanks to take on the oil. The 'deck scupper plugs' were placed and all other preparatory activities of the 'procedures' were carried out. There was an overflow alarm in the tanks, which was not checked. Neither was it possible to do so, because the tanks are located between the holds, where it is not possible to carry out checks. The alarm in the overflow tank was activated and was triggered during the overflow. How much was to be delivered was agreed in advance with the bunker vessel. The pump speed of 150 m³ per hour and the pump pressure of no more than 2 bars were also agreed. The pumping rate cannot be checked on board. Neither can the oil temperature be checked on deck. After the overflow I touched the pipe on deck and it was very hot, certainly above 50°C. It would normally be 35 to 40°C. I think that was laid down in the BDN. I was in the engine room during bunkering. I filled in the bunkering papers (BDN, checklist) there. The second engineer was on deck, at the manifold. He was in contact with me and the captain on the bridge using the marine telephone. There was a VHF connection with the bunker vessel. When the overflow took place there was no response from the bunker vessel using VHF, which is why the alarm was sounded from the bridge. The distance to the bunker vessel was three metres. I was unable to monitor the level in the tanks and the temperature of the oil in the engine room. That is usually possible and I have an indication there of how many m³ there are in the tanks and the bunkering progress can be viewed, but the computer used to do that was not working at the time. That is why the temperature in the tanks was not indicated. The HFO LS was first pumped into the one tank. When that one was full pumping was stopped. After that the rest was pumped into the other

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tank. The level in this tank was not measured during bunkering. The pressure precludes the ability to carry out precise measurements, doing that would involve stopping the bunkering to carry out checks during the process. The tank that overflowed had a maximum capacity of 73.3 m³ and the overflow tank 4 or 4.5 m³. The alarm in the overflow tank is triggered if that tank contains 2 m³. After that there is a 10-second delay. I didn't find that out until later, and that is not how it should be. I had not checked that. The second engineer was supposed to check for leakages in the pipes and whether there was an overflow. There were no meters that he could use to view the situation on deck. I heard the alarm go off in the engine room and went on deck. When I arrived on deck the bunkering had stopped, the pump had stopped and the hose was empty. The valves were not yet closed. I did that later. I heard from the second engineer and someone from the bunker vessel that the overflow took place when the bunkering had already stopped; pumping had already stopped at that time. It might have been the last drops. It is also possible that they were blowing out the pipes. The oil had come out at the overflow tank, between the two cargo holds and not at the manifold. The second engineer had apparently not noticed the overflow. The captain has stated that he saw the overflow himself and sounded the alarm. Only a small quantity got into the sea, 250 litres or less and only between the ships. That oil had streamed over the closed foot railing, which has a height of about three cm. Sand and sawdust were spread to prevent this, but this was not done correctly. The sand and sawdust had been sprinkled haphazardly rather than in strong lines to create a barrier of the same height as or higher than the foot railing. Flowing protecting booms had already been put in the water at the start of the bunkering. After the incident I saw foam resembling cappuccino on deck. I did not establish the cause of this. I think that the bunker pipeline had been blown out, but I don't know whether that's true. It was agreed prior to bunkering that there would be an air-blow after bunkering. A quantity of 73.3 m³ was first read off in the last tank, and after that it was less; that indicates subsidence and cooling.

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With the benefit of hindsight somebody should have been there to check the bunker tank levels and the ullage, but there weren't enough people. That was in fact the second engineer's job, who should have walked backwards and forwards between the manifold and the tanks. If the computer in the engine room isn't working I usually send someone to gauge the tanks manually. The second engineer gauged the tanks on the bunker vessel down to the bottom before bunkering started. There were no air bubbles to be seen on the gauging ribbon. I don't know whether the tank tables were checked after the incident. The ship had to be trimmed during bunkering. That was being done by my assistant. I hear my lawyer saying that the fine imposed by the port authority was paid by the agent, who charged it on to Wagenborg. The fine has not (yet) been charged on to me. I have been sailing as a chief engineer since 2005. After the incident I continued working for another four months. This hearing was awaited after that. Something like this won't happen to me a second time. My two-year contract with Wagenborg expires this month. 5. The ruling of the Disciplinary Court A. Regarding the admissibility of the petition the Disciplinary Court's findings are as follows. The petition is based on the following facts. The Dutch seagoing vessel Humberborg anchored at the Piraeus roads on 12 October 2013. That morning the bunker vessel "JET-XIV" moored alongside and bunker oil was pumped over to the Humberborg: HFO LS, HFO HS and MGO, in various bunker tanks. During the final stage of bunkering the HFO LS this oil overflowed from the overflow tank of the cross bunker tank on the port side (CB 1 tank PS). A quantity of approximately 250 litres of HFO flowed into the sea from the deck. The person concerned was the chief engineer of the Humberborg at the time.

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In its decision of 22 November 2013 the port authority of Piraeus imposed a fine on both the person concerned and the ship's manager Wagenborg Shipping B.V. together a fine of € 29,000 because the person concerned did not do everything possible to prevent the oil spill, as a result of which the sea was polluted over an area of 200 m². This fine has been paid. On 14 February 2014 the inspector filed a petition with the Disciplinary Court for disciplinary proceedings against the person concerned. It has been argued on behalf of the person concerned that this is contrary to the principle of 'ne bis in idem', so that the petitioner should be declared inadmissible. This principle - which in simple terms means that nobody can be tried twice for the same offence - may be applicable within disciplinary law itself, but does not rule out the possibility of instituting disciplinary proceedings that can culminate in a disciplinary measure being imposed in addition to the imposition of an administrative fine against the same person. Administrative law and disciplinary law have a different background and objective and therefore do not operate the same standards for the imposition of a penalty. The call for the petitioner to be declared inadmissible is therefore rejected. This does not alter the fact that account can be taken with the previously imposed administrative penalty in the imposition of a disciplinary measure. B. Based on the information given above under 4, the following case has been made in this regard. What was to be done before, during and after bunkering was laid down in the "Bunker and pumping procedures". The chief engineer held overall responsibility for this. The person concerned was familiar with these procedural regulations and the responsibilities they entail. The person concerned had stated that 140 mt of HFO LS was to be ordered. This quantity was to be pumped into the bunker tanks CB 1 SB and CB 1 PS, with a maximum capacity of 73.313 m³ and 68.864 m³ respectively, totalling 142.177 m³. Tank CB 1 PS was empty, but tank CB 1 SB still contained 6 m³,

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so that these tanks had a remaining capacity of 136.177 m³. The person was aware of these capacities prior to the commencement of bunkering. As the person concerned was aware, no more than 90% of the available capacity should have been ordered, being 122.56 m³. The capacity of the overflow tanks of these bunker tanks and the pipelines should not be included. According to the BDN, the HFO LS supplied had a density of 0.9828 at 15°C, so that 140 mt has a volume of 142.45 m³ at 15°C. Since HFO is usually pumped at a temperature higher than 15°C the volume is greater than at 15°C and an extra margin should be observed for the capacity of the tanks. C. It is clear from the above that making a calculation should have made it clear to the person concerned that the stated quantity of 140 mt of HFL LS could not be received by the two bunker tanks, even if the remaining capacity of these tanks was used in full, without taking account of the 10% margin and also without noting the margin for the temperature/density as mentioned above. D. Contrary to what was laid down in the procedures, no alarms at all were checked prior to bunkering commencing. It seems that the overflow tank alarm was set to a ten-second delay. The person concerned did not know that and admits that this was incorrect. It is unclear whether the bunker tanks were equipped with an alarm (high and high-high level alarm). If they were, this alarm system did not work properly. Neither was an emergency stop button provided by the bunker vessel. It is doubtful whether the VHF link between the Humberborg and the bunker vessel was working properly. E. Since the computer in the engine room was not working, the person concerned was unable to use it to monitor the progress of the bunkering. He did not have the bunker tanks gauged during bunkering. Other than that it can be conceded to the person concerned that gauging by hand during pumping is not easy. Neither was it possible to monitor the temperature in the tanks, the pumping rate or the pumping pressure on board the

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Humberborg. The high temperature of the pumped oil could however have been felt. This was apparently not done. F. Certainly in a case where it was foreseeable that the quantity of HFO LS ordered and to be delivered could not be received in the bunker tanks designated for that purpose, it was necessary to reduce the pumping rate in good time, well before the final tank CB 1 PS would be full. There is nothing to indicate that the bunker vessel was asked in a timely manner to reduce the pumping rate or that this was done by the bunker vessel. The person concerned does not appear to have given any instructions for this to be done, either to another member of the Humberborg's crew or to someone on board the bunker vessel. The Disciplinary Court therefore presumes that the pumping rate was not reduced and that the person concerned did not give instructions for this to be done or make agreements on this point with the bunker vessel. Neither did the person concerned arrange for a crew member to be stationed at the last tank to make sure that it did not overfill and to indicate when this tank and the accompanying overflow tank were almost full. If that had been done it would have been possible to stop the pumping in time and gauging and making a calculation would have shown how much more oil could have been received in the tank. An overflow could thus have been avoided. This task was not delegated to the second engineer. The second engineer should have been stationed at the manifold, from where it seems that the overflow tank of the bunker tank could not be observed. Neither were any other crew members stationed. When the overflow tank overflowed via the tank de-aerator to the deck, that was not noticed by anyone on deck but by the captain on the bridge. G. The Disciplinary Court finds that the bunker operation lacked clear planning and diligent implementation. The person concerned was responsible for this. It should have been clear to him that more HFO LS had been ordered than could be received by the designated bunker tanks. He was unable to monitor the bunkering progress in the engine room. As bunkering

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approached completion close attention should have been paid to the last tank and the overflow tank and the pumping rate should have been reduced and the pumping should have been stopped in a timely manner. He did not however take any such measures, as a result of which the overflow tank was able to fill up and even overflow. No plausible case to the effect that no crew members were available has been made - despite the Humberborg's small crew - since it seems that there were enough people on deck following the overflow to try to limit its effects. If it was impossible to have the necessary number of people on deck under the given circumstances, the bunker operation should have been deferred or other agreements should have been made with the bunker vessel, e.g. to pump across a smaller quantity of HFL LS so that it was certain that it could be received in the bunker tanks. This was not done either. Added to all of this is the fact that the alarm system on the Humberborg was not of such a nature that the pumping could be stopped in a timely manner, no emergency stop button was provided and it seems that the communication with the bunker vessel was not as it should have been either. The fact that bunkering was carried out a few days sooner than originally planned cannot be taken as a convincing excuse for the inadequate planning and implementation of the bunkering. H. Contrary to what has been claimed by the person concerned, the Disciplinary Court finds that the overflow cannot be attributed (solely or predominantly) to the formation of foam in the HFO, which was beyond the control of the person concerned. No plausible case has been made to the effect that foam was formed because the bunker vessel pumped HFO containing air bubbles. Neither has it been demonstrated that the bunker vessel pumped at a higher pumping rate and a higher pump pressure than had been agreed. Foam could also have been formed as a result of the pipelines being blown out with air, which had been agreed beforehand with the bunker vessel. There is no evidence that the tank tables were incorrect. The Humberborg could have trimmed the vessel correctly at an earlier stage.

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I. The Disciplinary Court concludes the person concerned has seriously failed in the performance of his duties and his responsibilities as chief engineer during the bunkering operation. This resulted in an oil spill and environmental harm. It is also reasonable to assume that the Humberborg and the bunker vessel were smeared with the overflowed HFO as well. This constitutes a violation of Section 4 (3) of the Maritime Crews Act, now entitled the Seafarers Act. J. The person concerned is not held accountable for the fact that the measures intended to mitigate the effects of the overflow on the deck of the Humberborg were not entirely successful. The oil spill in the sea was limited partly as a result of the fact that protecting booms had been placed in the water by the Humberborg and the bunkering vessel, apparently on the request of the person concerned. 6. The disciplinary measure In view of the seriousness of the evident behaviours a suspension of the navigation licence for the duration mentioned below is appropriate. In view of the circumstances that it was partly owing to the actions of the person concerned that the pollution of the sea was limited, that this is apparently the first time that he has been involved in such an incident and that he has learned from this, as well as the fact that the person concerned has been subjected to a fine - albeit not charged to him, and the further consequences are unknown - and, finally, the fact that he appeared at the hearing, the Disciplinary Court sees good cause to stipulate that the suspension of the navigation licence will be fully suspended. 7 The decision The Disciplinary Court:

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• Declares the objections against the person concerned as stated under point 5 to be well-founded;

• suspends the navigation licence of the person concerned for a period of two months;

• stipulates that this suspension will not be imposed unless the Disciplinary Court stipulates otherwise in a subsequent ruling based on the fact that the person concerned has once again behaved contrary to his duty of care as a good seaman in respect of the people on board, the vessel, its cargo, the environment or shipping prior to the end of a probationary period, which the Disciplinary Court hereby sets at two years;

• stipulates that the probationary period of the suspension shall commence on the date six weeks following the date of this ruling being forwarded.

Duly delivered by A.N. van Zelm van Eldik, LL.M., deputy presiding judge, E.R. Ballieux, T.S. de Groot, D. Willet and E.R. IJssel de Schepper, members, in the presence of D.P.M. Bos, LL.M., as secretary and pronounced in public session by E.A. Bik, LL.M., on 15 October 2014. E.H.G. Kleingeld E.A. Bik secretary president

sent: 15 October 201

An appeal against this decision can be lodged within six weeks of the date of the forwarding of this ruling with the Dutch Trade and Industry Appeals Tribunal (‘College van Beroep voor het Bedrijfsleven’), Prins Clauslaan 60, The Hague, the Netherlands.