Co-written by Elisabeth Prigent
The "ERIKA" disaster on 12th December 2000, and the subsequent pollution of the French coast line by heavy oil, has resulted in the resurgence of the issues concerning maritime transports security in the European Union.
After the AMOCO-CADIX event in 1978, and further major maritime accidents (two wrecks of oil-tankers in 1993, and the accident of the passenger car ferry ESTONIA in 1994), a first set of laws relating to maritime security and oil pollution prevention was implemented. Those laws aimed to apply more strictly the rules already existing as a result of international conventions concerning ship safety, the prevention of the pollution by ships, the professional qualification of the crew, the work conditions on board and the security of the passenger ships and of the cargo carriage.
The ERIKA accident has shown that the European regulations were not strict enough, and that notwithstanding these rules, substandard vessels, managed by unqualified crews continue to approach the European coasts while carrying dangerous cargoes.
The European Parliament and the European Council have voted a first series of measures, commonly called "Erika 1", concerning the reinforcement of the Port State Control, the increase of liability of the classification societies, and the timetable for the substitution of transportation sector single-hull tankers vessels by double-hull tankers vessels. Another series of measures ("Erika 2") which are still under discussion could lead to an increased supervision of the maritime traffic off the European coasts, a better indemnification of the pollution damages on the littoral, and to the creation of a European Maritime Security Agency.
I . "Erika 1"
A . The Port State Control
A substantial modification was made to the existing European directive concerning port State control of vessels. The main elements of this reform concern :
- the implementation of a compulsory and more strict survey of certain categories of ships. A specific and strict procedure for control is organised by the European directive. Firstly, a determination is made as to which ships are considered "potentially dangerous" (10 years old citern ships carrying gas or chemicals, 12 years old bulk carriers, 15 years old single-hull oil-tanker, 15 years old passenger vessels). These are then submitted to a strict and reinforced survey in the first European port visited after a period of 12 months following the last reinforced survey carried out in another European State port.
The new text also provides that the operator of any "potentially dangerous" vessel shall notify all relevant information concerning the ship and the cargo to the authorities of the European port of arrival, at the latest two days before the expected date of arrival.
- the ban of certain categories of substandard ships coming from an open register. This regulation is aimed at the same kind of ships at above which are considered "potentially dangerous". The port authorities can refuse the access to those vessels if (i) they have been arrested twice during the past 24 months in a State which is a party to the "Paris MOU", and if they are registered in a State listed on the "black list" (edited in the annual report of the Paris MOU), or (ii) if they have been arrested once during the past 36 months in one State which is a party to the "Paris MOU", and they are registered in a State listed on the black list as "high risk".
In order to undertake these harmonized controls at the European Union level, a global information system was set up. Each European coastal State is called upon to publish on a quarterly basis information on the vessels which were arrested by it during the past 3 months. The data is then made available on the EQUASIS data base. All the information contained in the data base gives a measuring rod which permits to identify those vessels which need to be surveyed in priority through a system of points on the basis of various criteria such as age, flag, former arrests, etc.
B . Increase Of The Control And Of The Responsibility Of The Classification Societies
Many States delegate a large part of their verification powers to the classification societies. This is especially true in respect of structural aspects of ship, and ship conformity with the international conventions. The existing European directive concerning classification societies was modified on three fronts:
- Firstly, the Commission shall extend its control to classification societies. The classification societies shall have to provide the authorities with various information concerning the vessels registered with them. This aims at controlling any potential "class hoping".
- Secondly, the EU shall also exercise control over the performance of classification societies, by publishing statistics : the societies which give their consent to substandard or frequently arrested ships shall be penalized. The Commission shall even be entitled to withdraw their professional accreditation, following a review of their activities. The withdrawal of habilitation may be temporary or permanent.
- The financial liability of classification societies is being put into play. This responsibility can be limited, in case of personal or material damage resulting of an act or omission by negligence or imprudence of the classification society ( limitation of up to €2,5 millions and to €5 millions respectively). However, if the damage is as a result of voluntary omission or of gross negligence then, the responsibility of the classification society shall be unlimited.
C . Timetable Of The Progressive Elimination Of The Single-Hull Vessels
The third measure aims to phase out single-hull oil-tankers according to a timetable which is similar to the US timetable, in order to permit an accelerated introduction of the double-hull oil-tankers. It is organized along the lines of the MARPOL Convention and takes into consideration elements like the tonnage of the ships, their structure and their age. Following the implementation of this timetable, the use of double-hull tankers shall be phased in for every category of oil-tanker from 2005 to 2015. Three categories have been created, each of them having a different timetable:
- for oil-tankers whose tonnage is above 20 000 tonnes, which are not in conformity with the prescriptions of the MARPOL Convention, and which are 25 years old or more;
- for the oil-tankers whose tonnage is above 20 000 tonnes, which are in conformity with the prescriptions of the MARPOL Convention;
- for the oil-tankers whose tonnage is above 3000 tonnes, but below 20 000 or 30 000 tonnes;
The larger and the older tankers are to be eliminated earlier (except if they have a specific structure, such as for instance protections of the ballasts).
This overall timetable is nonetheless more agressive than the American one, in order to avoid oil-tankers considered as substandard ships in the USA to move to Europe where they would be allowed to operate. At present, the implementation of this timetable is suspended pending attempts to adopt similar measures at the international level at the IMO. If this agreement did not occur to happen the Europeans have agreed to adopt the timetable in June 2001.
II . "Erika 2"
The Commission wishes to create a net over the European territorial waters, by increasing the system of control and supervision of the ships transiting off the European coasts. The proposal of the Commission provides for a compulsory notification system concerning both the vessels calling at European ports and the vessels which simply sail in European waters. A system of automatic identification ("black box") would be mandatory on every ship navigating in European waters. Finally, no vessel would be authorized to leave a port in extreme meteorological conditions, and every European State would set up some refuge ports to receive ships in distress.
The Erika disaster has revealed that the system and the amount of indemnification for environmental pollution resulting from the IMO Conventions is insufficient. Until now, the liability of the shipowner could be limited in the case of environmental pollution, as provided in the 1992 protocols to the CLC Convention and to the Fund Convention. Notwithstanding the type of cargo or the State of the Vessel, no additional responsibility could be sought from the shipowner, charterer, or owner of dangerous cargoes.
The new regulations would hold liable for damage, any person who had caused or contributed to cause an oil pollution. In addition, any person who caused or contributed to a pollution because of its gross negligence would also be liable. The amount of the fine could depend on the attitude of the party when dealing with he aftermath of the pollution damage. This liability will extend to all players including owners, operators and even charterers or cargo owners.
The second aspect of this increase of responsibility concerns the Fund Convention. The Commission wishes to immediately raise the limits of indemnification fixed in the Fund Convention, up to one billion € (like in the USA regulation), by spreading the amounts amongst all of the parties involved in oil transportation. The Commission would also seek to set up a European Fund which would complement the Fund Convention in the event the ceiling fixed in the IMO Conventions was exceeded.
The last reform would consist in the creation of a European Maritime Security Agency, whose role would be to harmonize all of the control and supervision mechanism set up by the regulations, as well as help the Commission to ensure this application. It would collect and analyse factual or statistic data, as well as evaluate the implementation of the European regulation.
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