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February 16, 2022 Feature

Maritime and Environmental Law Crossroads: The Intensifying Problem of Biofouling and Preventative Measures

By Chiara D. Kalogjera-Sackellares
Drone Planet /  iStock/Getty Images Plus via Getty Images

Drone Planet / iStock/Getty Images Plus via Getty Images

Biofouling is the build-up of organisms on the surfaces of vessels as they travel through the water, decreasing a vessel’s fuel efficiency and increasing the vessel’s C02 emissions.

The Problem: Biofouling

Maritime and environmental law. Two niche fields of law, which do not obviously overlap at first glance. However, there is a growing national and global consciousness in the realm of environmental issues impacting the maritime industry. These concerns include the importance of protecting marine biodiversity and preserving vessels’ fuel efficiency. Biofouling is a clear manifestation of this intersection. It has come to the forefront of maritime-environmental law discussions this year through the publication of the “Industry Standard on In-Water Cleaning with Capture,” which was written by a working group of anti-biofouling system (AFS) manufacturers, cleaners, ship-owners, ports, international organizations, and authorities and the first Global Conference on Biofouling Management in September 2021.

Biofouling is the build-up of organisms on the surfaces of vessels as they travel through the water. Biofouling decreases a vessel’s fuel efficiency because as growth accumulates on the vessel during its journey, more fuel is required to transport the vessel, and consequently, the vessel’s C02 emissions increase. Additionally, biofouling leads to the unwanted transfer of invasive species from one port to another as the ship’s hull picks up organisms during its transit from port to port.

There are many methods to protect the hulls from biofouling, such as anti-fouling hull coatings. However, they can be made of harmful materials that harm aquatic life, and even with protective coatings, build-up still occurs, which requires cleaning and capturing methods to cure it. Cleaning the hull itself is complicated because foreign aquatic species will harm the native ones, as inevitably, not all foreign specimens can be captured during clean and capture procedures.

Biofouling is not a new problem, but it is a worsening problem, in part due to the twin foes of climate change and COVID-19. How? As ships idle off the coasts of ports, waiting to unload their cargo, warmer waters offer ideal conditions for organisms to grow and spread in new lands, threatening the health and safety of the aquatic life who call those waters home. A brief timeline of biofouling efforts over the past decade, internationally and nationally, highlights efforts to develop regulations and guidelines and encourage preventative measures to address the problem over the past decade and the rapidity with which new and revised regulations and guidelines are implemented.


The International Maritime Organization (IMO) began the past decade’s work to address biofouling by developing a Biofouling Guideline in 2011 that outlines steps owners and operators should take to prevent the transfer of invasive aquatic species. Countries with incredible biodiversity, particularly susceptible to aquatic species invasion, took preventative and regulatory steps to halt harm from biofouling in their waters. For example, New Zealand introduced the Craft Risk Management Standard for Biofouling (CRMS) in 2014, and Australia implemented its own regulations in 2015. Both countries have revised their guidelines since then. Domestically, the United States Coast Guard (USCG) developed biofouling management and sediment management plans under 33 CFR 151.2050(g)(3). As of 2013, the EPA requires vessels to have a Vessel General Permit, and the passage of the Vessel Incidental Discharge Act in 2018 established standards for discharges incidental to vessel performance. Last year, the EPA issued a proposed rule through which the USCG would enforce to reduce discharges from vessels further. On a state level, California developed standards in 2017 that put the onus on “the master, owner, operator, or person in charge of a vessel carrying, or capable of carrying, ballast water.” Regulations are being implemented at every level of government. Coordination efforts and synchronization are still needed, so staying apprised of the obligations under each is essential to compliance.

BIMCO, in collaboration with a working group in interested parties, published the most recent iteration of the “industry standard” on in-water cleaning with capture in January 2021. More recently, in September 2021, the first-ever Global Conference on Biofouling Management for Maritime Industries offered a forum for experts on tacking biofouling to discuss old and new technologies, management techniques, the impacts on aquacultures, and regulations. This brief timeline demonstrates that the industry-standard updates and implementation of revised or new regulations are more frequent and demand the attention of those they will impact - especially ship-owners, carriers, and ports. The proper procedures for ship documentation, cleaning with capture, and managing the captured materials are ever-changing.

Action Items, Challenges, and Resources

Thus, ship-owners and carriers should take a few actions to avoid the perils of violating biofouling regulations, keep their vessels running efficiently, and prevent harm to the environment. Owners and operators of vessels should consider the following:

  • Apply protective coatings to vessels that will not harm the environment. It is easier to stop the build-up on a hull than clean it.
  • Make and execute pre-cleaning preparations to avoid the increased fuel costs that inevitably follow a hull succumbed to biofouling and employ best practice “clean and capture” techniques following the latest publications on the topic, e.g., the 2021 “Industry Standard on In-Water Cleaning with Capture.”
  • Develop or update biofouling management plans that consider the regulations for each port the vessel will approach. If a carrier is coming into port in New Zealand, the requirements may differ from if the vessel embarks on a journey to LA Long Beach. Local regulations may be more demanding than international regulations. Furthermore, as more governments implement regulations, some may offer a grace period to comply. Taking note of whether the applicable regulation’s grace period is still in effect may ease compliance efforts.
  • Consider whether the vessel will be idling in warmer waters where increased Biofouling is likely to occur. If so, make sure any “clean hull” clauses in the charter party are amended and consider whether increased fuel usage is predicted.
  • Though the surfaces of ships are well-known breeding grounds for biofouling, vessel cooling systems are also known to allow species exchange. Consider whether there are technologies to prevent species interchange via cooling systems and whether protections need to be written into contracts to avoid any liability for unpreventable species exchange that may result.
  • Keep apprised of any new or revised biofouling guidelines on an international, national, or local level.
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By Chiara D. Kalogjera-Sackellares

Chiara D. Kalogjera-Sackellares is a litigation associate in Holland & Knight’s New York office. Ms. Kalogjera-Sackellares has experience in maritime litigation and concentrates her practice on complex commercial litigation, with an emphasis on maritime, toxic tort, and contract matters. She can be reached at [email protected].