EU Council split over maritime law

Margarida Vasconcelos reports: The “Third Maritime Safety Package” or the so called Erika III was proposed by the European Commission in 2005. Several Member States, including the UK, believe that EU legislation on those issues will jeopardize their maritime interests. In April 2007 the European Parliament adopted this package however the European Parliament position was not consistent with the Council general approach. On 6 June 2008 the Council adopted six common positions on the basis of the Commission proposals of the third maritime safety package which were forwarded to the European Parliament for a second reading under the codecision procedure.

At the informal meeting of the EU Transport ministers which took place on 1 and 2 September the Member States expressed their doubts on the European Parliament’s eagerness to incorporate into its second reading reports part of the Council amendments to the Erika package. And, on 4 September the European Parliament’s Transport Committee has confirmed the Council’s fears. It has voted unanimously on the Erika III package reintroducing all the amendments from the first reading which the Council has not taken on board. The MEPs have stressed that they “did not want the Council to water down important suggestions on port state control, a Community vessel traffic monitoring system, accident investigation, the liability boat passenger carriers and ship inspection and survey organisations.”

The draft directive amending directive 2002/59/EC establishing a Community vessel traffic monitoring and information system is intending to create an independent competent authority for the accommodation of ships in distress. The Commission proposal requires Member States to notify the Commission of refuge places to welcome ships in distress and equip them. According to the European Commission, as well as the European Parliament, the decision of whether to harbour ships in distress should be left to independent authorities. The European Parliament rapporteur, Dirk Sterckx, has said “that there should be no margin of discretion for Member States in applying this decision on places of refuge and that an independent authority should be set up to designate ports of refuge for vessels in distress.” The EU Member States do not want to be under the obligation to harbour ships. The Council, taking into account several Member States fear of financial risks, has rejected the possibility of establishment of an independent authority in charge of providing assistance when accidents happened and with the capability of imposing independent decisions on where ships should be taken for rescue as well as repair operations. Moreover, the MEPs believe that the lack of evidence of financial security must not be taken into account when deciding whether to accommodate a ship in distress and that the accommodation in a place of refuge should not be limited to insured ships. However, Member States want to have the possibility of refusing assistance to ships that lack sufficient financial guarantees.

The European Parliament vote on the draft directive for port state control has tightened up the inspection regime, the criteria for selecting ships for inspection and the parameters for calculating a ship's risk profile.

The Commission has proposed a permanent ban from Community waters of ships which have been detained three times following inspections at a Community port. However, the Council believes that a permanent ban is not proportional therefore, as regards to substandard ships it agreed that access of these ships to Member States' ports will be indefinitely refused. But, this indefinite access refusal might be lifted after 36 months. In what concerns ship inspection regimes, several Member States believe that the Commission and MEPs proposals would create too many additional costs for their administrations. The Council has therefore agreed on a new inspection regime for ships coming to the European ports which gives more flexibility to the Member States. Hence, Member States would be allowed to skip inspections on 5 per cent of ships with a high risk profile and on 10 per cent of other ships whilst the Commission and the European Parliament have demanded that 100 per cent of individual ships must be inspected. Member states have been arguing that this measure will be very expensive and very difficult to control.

The draft regulation on the liability of carriers of passengers by sea and inland waterways in the event of accidents is aimed at creating a Community regime of uniform liability for the carriage of passengers by sea and inland waterways. It incorporates the 2002 Athens Convention relating to the carriage of passengers and their luggage by sea into Community legislation. The draft directive would introduce a compulsory insurance to cover passengers in the event of shipping accidents. The right for an advance payment in the event of death or injury of a passenger is also included in the proposal. The Council has modified the Commission proposal in its scope, the relation between the regulation and other international conventions on global limitation of liability and advance payments. The Council has rejected the Commission's proposal to extend the application of the Athens Convention to international and domestic carriage by inland waterways. However, the European Parliament Transport Committee has also introduced amendments on broadening the scope of this regulation. According to the MEPs the text should apply to all international and national maritime transport. This contrasts to the Council which has rejected the Committee Members readopted amendments to step up the mechanisms proposed to harmonise compensation levels on the amounts to be paid to passengers in case of accidents.

The draft directive establishing fundamental principles governing the investigation of accidents in the maritime transport sector which amends directives 1999/35/EC and 2002/59/EC is intending to improve maritime safety by establishing Community guidelines on technical investigations to be taken following maritime casualties and incidents. The Council introduced changes to the Commission proposal as it agrees that mandatory investigations should take place only in case of very serious casualties and incidents. The members of the European Parliament Transport Committee have stressed that safety investigation must concern serious accidents, and not merely, as the Council has proposed, “very serious” accidents.

It should be recalled that Member States have been unable to reach an agreement on the other two proposals: the proposal concerning the obligations of flag states and the proposal on civil liability and the financial guarantees of shipowners. These proposals are blocked in the Council and in fact several Member States would like to shelve them. Under the proposal for a directive on compliance with flag state requirements the International Maritime Organisation conventions on flag state obligations would be turned into Community law and consequently it would transfer the Member States competence in these areas to the Community.

Dr Stephen Ladyman said to the European Scrutiny Committee (ESC) that the “Government is keen to see this proposal substantially amended if not dropped altogether.”

The European Parliament adopted several amendments to the draft proposal at first reading which amount to further requirements on flag states. The draft directive on civil liability and the financial guarantees of shipowners is aimed at introducing a Community civil liability regime. Under the draft directive ship operators would be fully liable for damage to third parties and a compulsory insurance scheme to ensure that shipowners are able to compensate third parties in the event of accidents would be introduced. It would also introduce a system of mandatory state certification for all ships. Member States would therefore be obliged to validate the insurance of every ship on its register and issue a certificate attesting that insurance is in place. Several Member States including the UK are already parties to the Convention on Limitation of Liability for Maritime Claims (LLMC) – therefore Jim Fitzpatrick has recently explained to the ESC that the Government believes that “greater Member State ratification of this Convention would extend the coverage of the higher limits of liability.” Last April the majority of the Member States agreed at the Transport Council that there was no need for Community legislation in this area. Several Member States are not in favour of transferring International Maritime Organisation (IMO) conventions into Community law.

In general, Member States believe that the flag state and civil liability proposals contain provisions which would entail additional costs for the shipping industry and would increase the administrative burden. However, at the informal meeting of the EU Transport ministers which took place on 1 and 2 September France made clear that it wants to reopen the negotiations on both the draft directive on flag state requirements and the draft directive on civil liability. France is willing to negotiate with the European Parliament rather than shelve the two texts. It will try to reach a compromise solution between the Member States and the Commission and the European Parliament.