Environmental Stewardship in Antarctic Cruising: What Operators Must Navigate

Editor's Note: The Antarctic tourist season currently runs from November through March, with demand for expedition cruises at an all-time high and travel to the Final Frontier continuing to grow at a remarkable pace. In advance of the kickoff of the 2026-2027 tourist season, Holland & Knight has developed a series of five targeted advisories, each addressing a distinct legal and operational consideration for Antarctic expedition cruising. Whether you are an operator preparing for the 2026-2027 season or laying the groundwork for the years ahead, the considerations outlined here will remain essential as the industry continues to grow. The alerts will be released weekly throughout October as we count down to opening day.

Antarctica's pristine environment is both its principal attraction and most significant vulnerability. For expedition cruise operators, environmental stewardship is not merely a matter of regulatory compliance – it is fundamental to the industry's long-term viability. The framework governing environmental protection in Antarctic waters operates at three distinct levels: international maritime law under the International Maritime Organization's (IMO) International Convention for the Prevention of Pollution from Ships (MARPOL), Treaty-level obligations under the Madrid Protocol and voluntary self-regulatory standards administered by the International Association of Antarctica Tour Operators (IAATO). Each layer imposes requirements that, if violated, may expose operators to regulatory sanctions, contractual liability and tort claims.

This Holland & Knight alert examines the environmental obligations applicable to Antarctic expedition cruising and identifies practical audit considerations before the season begins.

Discharge Rules and MARPOL Requirements

The regulatory framework governing discharges in Antarctic waters operates at multiple levels, with each having independent significance for compliance and litigation exposure. At the international level, the IMO designated Antarctic waters as a Special Area under MARPOL Annexes I, II and V in the 1990s. The designation imposes stricter discharge rules than those for ordinary sea areas: MARPOL Annex I prohibits oil or oily mixtures, Annex II prohibits noxious liquid substances, and Annex V prohibits plastics and requires most other garbage to be retained for shore-side disposal. In 2011, the IMO amended MARPOL Annex I to ban the use and carriage of heavy fuel oil in the Antarctic Treaty Area, as heavy fuel oil becomes highly viscous in cold temperatures, persists far longer than lighter fuels and is extremely difficult to remediate in polar conditions. These MARPOL prohibitions are binding international law, enforceable through flag state and port state control, and a violation could support negligence per se claims based on breach of a mandatory regulatory standard.

For expedition cruise operators, the practical consequence is that waste management, fuel specifications and discharge protocols require more rigorous planning than voyages in non-designated waters. A discharge incident in Antarctic waters carries heightened regulatory and litigation risk because the Special Area designation eliminates the defenses and tolerances available elsewhere, and the pristine environment amplifies reputational harm and the potential for public enforcement interest.

Sewage discharge is governed separately under MARPOL Annex IV. Unlike Annexes I, II and V, Antarctica is not designated as a Special Area under Annex IV, but the Polar Code imposes additional requirements for vessels operating in polar waters, including restrictions on untreated sewage discharge. Under the Polar Code, vessels must have adequate holding capacity or treatment systems capable of meeting applicable discharge standards in remote areas where shore-side reception facilities are unavailable.

Madrid Protocol Obligations and Protected Areas

At the Treaty level, the Madrid Protocol imposes additional environmental obligations, including requirements for environmental impact assessments (EIAs) and restrictions on interference with Antarctic fauna and flora. Under Annex II to the Protocol (Conservation of Antarctic Fauna and Flora), the taking of or harmful interference with native mammals, birds and plants is prohibited except under permit, and the introduction of non-native species, including live poultry and other living organisms, is strictly controlled. Annex III (Waste Disposal and Waste Management) requires operators to plan for waste removal, minimize waste production and ensure proper disposal of hazardous and radioactive waste. Annex IV (Prevention of Marine Pollution) applies the spirit of MARPOL to all vessels operating in Antarctic waters regardless of size or flag.

The Madrid Protocol also establishes Antarctic Specially Protected Areas (ASPAs) under Annex V, which require separate permits for entry. Under Article 5 of Annex V, any Consultative Party may propose an area for designation by submitting a Management Plan to the Antarctic Treaty Consultative Meeting (ATCM), and the Proposing Party typically assumes ongoing responsibility for maintaining the Management Plan and reviewing it at least every five years as required under Article 6(3). The proponent's role is limited to maintaining the Management Plan itself; under Article 7, each Party appoints its own national authority to issue permits for entry into any ASPA, meaning that an operator seeking to visit an Australian-managed ASPA obtains its permit from its home country's authority, not from Australia, and any enforcement action for unpermitted entry would proceed under the operator's home jurisdiction.

Currently, there are 78 ASPAs covering approximately 3,800 square kilometers of land and marine areas, protecting sites of outstanding environmental, scientific, historic or aesthetic value. For operators subject to a Treaty party's jurisdiction, entering an ASPA without the required permit constitutes an unambiguous regulatory violation that could support breach of contract or negligence per se claims; for operators outside the Treaty system's enforceable reach, the Madrid Protocol prohibition may still inform the standard of care but would not provide the clear regulatory predicate typically required for negligence per se.

The EIA requirement under the Madrid Protocol is one of the most consequential regulatory obligations for expedition cruise operators. Article 8 of the Protocol and Annex I establish a tiered assessment system: Activities determined to have less than a minor or transitory impact require only a Preliminary Assessment, while activities with potential for minor or transitory impact require an Initial Environmental Evaluation, and activities likely to have more than a minor or transitory impact require a Comprehensive Environmental Evaluation subject to public comment and review by the Committee for Environmental Protection. Most expedition cruise itineraries fall within the Initial Environmental Evaluation tier, but operators must obtain approval from their national competent authority before commencing activities in the Antarctic Treaty area. Because the EIA must cover the specific activities and sites in the planned itinerary, changes to an operator's season schedule, the addition of new landing sites or the introduction of new activities such as kayaking, camping or diving programs may require updated or supplemental assessments. Failure to hold a valid EIA approval for a planned activity constitutes a clear regulatory violation under most national implementing legislation, and such a violation could support breach of contract claims where passenger contracts warrant regulatory compliance, as well as negligence per se claims in jurisdictions that recognize violation of a regulatory safety standard as evidence of breach of duty.

Antarctic Specially Managed Areas (ASMAs), also designated under Annex V, differ from ASPAs in that they do not require permits for entry but establish coordinated management frameworks for areas where activities require planning to avoid conflicts or cumulative environmental impacts. Several ASMAs cover popular tourist destinations and frequently visited sites, including the Deception Island ASMA (ASMA 4) and the Southwest Anvers Island and Palmer Basin ASMA (ASMA 7). Operators conducting activities within an ASMA must comply with the applicable management plan, which may impose site-specific conditions on landing frequency, visitor numbers, temporal restrictions and prohibited zones. Noncompliance with ASMA management plans does not carry the same regulatory consequences as ASPA entry violations, but such noncompliance could still inform the standard of care analysis in negligence claims and may breach contractual warranties of regulatory compliance.

IAATO Standards and Biosecurity

At the voluntary self-regulatory level, IAATO members commit to standards that exceed both the MARPOL and Madrid Protocol baselines, regardless of whether they are formally regulated by a Treaty party. Under IAATO's guidance for organizers, vessels are urged to retain all waste onboard for appropriate shore-side disposal, and IAATO's recommended practice is to avoid any discharge below the Antarctic Convergence, approximately 60 degrees South Latitude (60°S) latitude, including treated graywater and food waste that might otherwise be permissible under MARPOL or flag-state regulations. For operators, these voluntary commitments carry significant legal weight: IAATO standards may define the industry standard of care in negligence litigation such that an operator that complies with MARPOL but falls short of IAATO protocols may still face exposure if a plaintiff establishes that the industry norm required more. Conversely, documented compliance with IAATO standards provides a powerful defense when an incident occurs despite best practices.

Boot and clothing decontamination procedures require passengers to clean footwear before and after each landing to prevent introduction of non-native species and avoid translocation of biological material between sites. IAATO's published annual biosecurity protocols for both operators and passengers, which require vacuum cleaning and visual inspection of outer clothing, backpacks, camera bags and walking poles before each landing. In addition, operators must provide boot-washing stations with disinfectant solution and supervise the decontamination process. Visitors are also instructed not to kneel, sit or allow clothing or personal items to come into contact with the ground: Even brief contact can transfer seeds, spores or microorganisms between Antarctic sites or from other regions entirely and can lead to the spread of Highly Pathogenic Avian Influenza (H5N1) in the Antarctic Treaty Area. Since the first confirmed case in February 2024, these ground contact prohibitions have taken on heightened urgency as a measure to prevent human-facilitated transmission of the virus between wildlife colonies that have already experienced concerning mortality rates elsewhere. Every vessel must maintain records of waste disposal, including sewage discharges, and retain those records for inspection. From an evidentiary standpoint, these recordkeeping requirements serve a dual function: They demonstrate compliance in the event of regulatory inquiry and create a contemporaneous record that may be discoverable in litigation. Operators that maintain thorough documentation of decontamination procedures and waste management are likely better positioned to defend against claims that a biosecurity incident resulted from negligent protocols, while gaps in documentation may be used to infer that required procedures were not followed.

Marine biosecurity presents a parallel concern at the vessel level. Organisms attached to a ship's hull – a phenomenon known as biofouling – can introduce invasive aquatic species to Antarctic waters when vessels transit from temperate or tropical ports. The discharge of ballast water in presents similar risks and concerns. Although the IMO has adopted biofouling management and ballast discharge guidelines, this is once again an area where there is no centralized regulation or enforcement mechanism. For operators, preseason hull inspections and documented compliance with biofouling and ballast water protocols are both operational necessities and potential evidence in any subsequent litigation involving alleged introduction of invasive species.

Wildlife Interaction and Site Protection

Wildlife interaction presents another significant environmental and liability concern. ATCM visitor guidelines prohibit the taking of or harmful interference with Antarctic wildlife, and IAATO operational procedures lay out that operators should generally keep at least five meters from wildlife on land, 15 meters to 25 meters from fur seals where practicable and greater distances at emperor penguin colonies with chicks. Operators may not use drones, unmanned aerial vehicles or remotely piloted aircraft systems for recreational purposes or passenger photography in the Antarctic Treaty Area without appropriate permits, and IAATO prohibits commercial drone use by passengers entirely. Vessels must not approach closer than 100 meters to known whale concentrations, and propeller speed must be reduced when whales are sighted in proximity to the vessel.

For operators, the key risk management consideration is that wildlife protocol deviations are often documented by multiple witnesses, including passengers with cameras, expedition staff and potentially observers from other vessels in the area. In any subsequent litigation – whether brought by a passenger injured during a wildlife encounter, a regulator alleging permit violations or third party claiming negligent supervision – evidence of protocol compliance or deviation is likely to be available and dispositive. Training expedition leaders to enforce wildlife protocols even when passengers resist and contemporaneously documenting any deviations, including passenger noncompliance, can help operators build a favorable evidentiary record.

Historic sites also receive protection under the Antarctic Treaty System. Annex V to the Madrid Protocol establishes Historic Sites and Monuments (HSMs), of which there are currently 96 across the Antarctic Treaty Area, commemorating sites of scientific, historic or cultural significance. Many HSMs are located at or near popular landing sites, including the remains of early exploration huts on Ross Island and the Deception Island whaling station ruins. Operators conducting landings at or near HSMs must ensure passenger compliance with applicable protections, which typically prohibit collection of artifacts, alteration of structures and disturbance of site integrity. Violations constitute permit breaches and Treaty violations, and the documented facts of any such violation could inform the standard-of-care analysis in related claims.

Before the Season Starts: Audit Recommendations

Operators should consider implementing these five audit steps:

• Confirm that all required EIAs are current, reflect the planned itinerary and any new landing sites or activities, and have been approved by the relevant national competent authority before proceeding south of 60°S.
• Audit waste management and fuel systems to confirm that holding tank capacity is adequate for the voyage duration and that no discharge will be required in Antarctic waters. Most expedition vessels already operate on compliant lighter fuels such as marine gas oil or marine diesel oil, but operators should maintain documentation confirming that fuel specifications comply with the MARPOL Annex I heavy fuel oil prohibition, including bunker delivery notes and tank cleaning records where the vessel previously carried heavier fuels.
• Verify that biosecurity protocols meet current IAATO standards, including boot-washing station equipment and staffing, clothing inspection procedures and passenger briefing materials, as well as train expedition staff on supervision and enforcement of decontamination compliance.
• Review itineraries against current ASPA, ASMA and HSM designations, confirm that permits for ASPA entry have been obtained where required, and incorporate ASMA management plan conditions and HSM protections into landing protocols and site briefings.
• Establish or update environmental incident response procedures, including notification protocols for spills, wildlife mortality and inadvertent introductions of non-native species, and identify reporting obligations to flag-state authorities, Treaty-party regulators and IAATO.

More Posts in This Series

• The Regulatory Landscape of Antarctic Cruising: What Operators Must Navigate

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.