Maritime safety: Ship-source pollution and criminal penalties
The European Union creates a legal framework for imposing penalties, particularly criminal penalties, in the event of discharges of oil and other noxious substances from ships in Community waters.
Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements.
Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.
The current legislation states that ship-source discharges in breach of Community law constitute a criminal offence and that penalties, both criminal and administrative, must be imposed if the persons concerned are found to have caused or participated in the act with intent or as a result of negligent behaviour. These rules comprise two different elements:
- the incorporation into Community law of international discharge rules for ship-source pollution;
- framework for these penalties.the application by the Member States of penalties when these rules are breached and the definition of the legal
According to this Directive, discharges of oil or other noxious substances from ships must be regarded as an infringement and punished accordingly when committed with intent, recklessly or as a result of grossly negligent behaviour. The Directive makes such discharges of polluting substances an offence when carried out in:
- the internal waters, including ports, of a Member State;
- the territorial waters of a Member State;
- straits used for international navigation subject to the regime of transit passage, as laid down in the 1982 United Nations Convention on the Law of the Sea;
- the exclusive economic zone (EEZ) of a Member State;
- the high seas.
This regime applies to discharges from any ship, irrespective of its flag, with the exception of any warship or other ship owned or operated by a State and used only on government non-commercial service. There are some exceptions to the ban on discharges of polluting substances, particularly where human safety or the safety of the ship is in danger. If a ship makes an illegal discharge in an area under belonging to one Member State and then calls in a port of another Member State, the two states must cooperate with regard to this matter. Every three years, each Member State must report to the Commission on the application of the Directive.
The regime of (criminal) penalties applicable to the conduct made an offence in the Directive is defined in this Decision.
Each Member State shall ensure that illegal discharges of polluting substances, participation in and incitement to carry out such discharges are penalised as criminal offences.
- These penalties must be effective, proportionate, dissuasive, and must be applied to anyone deemed responsible (the ship owner, the owner of the cargo, or any other implicated person).
For the most serious cases, i.e. instances that cause significant and widespread damage to water quality, animal or vegetables species or parts of them, or the death or serious injury of persons, each Member State must include imprisonment among possible penalties. Other penalties may be provided for individuals, such as fines or disqualification from performing a regulated activity.
Each Member State must make the necessary provisions to ensure that legal persons can be held liable when an offence is committed for their benefit by an individual with managerial or representative powers within that body, or where such an individual has been subject to insufficient supervision or control.
Penalties against legal persons may include fines, permanent or temporary disqualification from engaging in commercial activities, being placed under judicial supervision, a judicial winding-up order, and exclusion from access to public benefits or aid.
Each Member State must take the necessary steps to establish its jurisdiction with regard to the offences stated above, particularly when committed on their territory, on board a ship flying their flag, or by one of their nationals, acting on behalf of a legal person established on their territory.
The sinking of the Prestige in November 2002 and of the Erika in December 1999 highlighted the need to tighten the net in relation to ship-source pollution. However, accidents are not the main source of pollution: most of it is the result of deliberate discharges (tank-cleaning operations and waste oil disposal).
In this respect, the 390 oil slicks detected in the Baltic Sea and the 596 detected in the North Sea in 2001 show the need to put an end to the thousands of deliberate discharges of waste and cargo residues from ships in the seas around Europe.
These rules incorporate into Community law the 1973 International Convention on the Prevention of Pollution from Ships and its 1978 Protocol (Marpol Convention 73/78). This will make it possible to harmonise application of the provisions of this convention.
At international level, compensation for oil pollution is regulated by the International Convention on Civil Liability for Oil Pollution (CLC) and the International Convention setting up the Oil Pollution Compensation Fund (Fund Convention), to which all the coastal Member States are parties.
These two Conventions establish a two-tier liability system built upon:
- (limited) strict liability for the ship owner;
- a collectively financed fund which provides supplementary compensation to victims of oil pollution damage who have not obtained full compensation.
REFERENCES Act Entry into force Deadline for transposition in the Member States Official Journal Directive 2005/35/EC 30.9.2005 1.3.2007 OJ L 255 of 30.9.2005 Framework Decision 2005/667/JHA 1.10.2005 - OJ L 255 of 30.9.2005 RELATED ACTS Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law [COM(2007) 51 final - Official Journal C 138 of 22 June 2007] Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues [OJ L 332, 28.12.2000]. Last updated: 23.11.2007
Maritime safety: Bunkers Convention
This Decision aims to authorise the Member States to become Contracting Parties to the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage.
Council Decision 2002/762/EC of 19 September 2002 authorising the Member States, in the interest of the Community, to sign, ratify or accede to the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (the Bunkers Convention) [Official Journal L 256 of 25.09.2002].
The Bunkers Convention was adopted on 23 March 2001, under the auspices of the International Maritime Organisation ( IMO ), with the aim of ensuring adequate, prompt and effective compensation of persons who suffer damage caused by spills of oil carried as fuel in ships' bunkers.
The Bunkers Convention fills a significant gap in the international regulations on marine pollution liability. This Convention makes for improved victim protection, in keeping with the 1982 United Nations Convention on the Law of the Sea.
This Decision, adopted by the Council of the European Union (EU) on 19 September 2002, authorised the Member States to sign, ratify or accede to the Bunkers Convention, subject to the conditions set out in the Decision.
Articles 9 and 10 of the Bunkers Convention affect the rules laid down in Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.The Community therefore has sole competence in relation to Articles 9 and 10 of the Convention. The Court of Justice has ruled that the Community alone is empowered to negotiate and conclude international commitments in fields over which it has exclusive competence. However, the Bunkers Convention makes no provision for an international organisation such as the European Community to become a Contracting Party to the Convention. It will therefore be up to the Member States, after authorisation by the Community, to sign, ratify or accede to the Convention in the interest of the Community.
Consequently, the objective of this Decision is to authorise the Member States to sign, ratify or accede to the Convention and to place an obligation on them, when they do so, to make a declaration committing themselves to apply Regulation (EC) No 44/2001 in their mutual relations.
The Convention applies to:
- pollution damage caused in the territory, in the territorial sea and in the exclusive economic zone or equivalent zone of any State which is a party to the Convention;
- measures taken to prevent or minimise such damage.
The provisions of the Convention do not apply to warships, naval auxiliary or other ships owned by a State. However, any State which is a party to the Convention may decide to apply the Convention to such ships.
Liability of the shipowner
The shipowner at the time of an incident is liable for all pollution damage caused by its bunker oil. However, no liability will attach to the shipowner if the shipowner proves that:
- the damage resulted from an act of war, hostilities, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
- the damage was caused by an act or omission done with intent to cause damage by a third party;
- the damage was wholly caused by the negligence of any Government or other authority responsible
Limitation of liability
The financial liability of the liable party is subject to the limits laid down in the applicable national or international regime but may under no circumstances exceed an amount calculated in accordance with the 1976 Convention on Limitation of Liability for Maritime Claims, as amended.
Compulsory insurance or financial security
Owners of ships with a gross tonnage greater than 1 000 registered in a State which is a party to the Convention are required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover their liability for pollution damage.A certificate attesting that insurance or other financial security is in force is issued to each ship after the appropriate authority of a State which is a party to the Convention has determined that insurance or other financial security exists.This certificate must be carried on board the ship and a copy must be deposited with the authorities who keep the ship's registration.Any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the registered owner's liability for pollution damage.Each State which is a party to the Convention must ensure, under its national law, that insurance or other security is in force in respect of any ship with a gross tonnage greater than 1 000, wherever registered, entering or leaving a port in its territory.
Jurisdiction and enforcement of judgments
Where an incident has caused pollution damage in the territory of one or more States which are party to the Convention, actions for compensation against the shipowner, insurer or other person providing security may be brought only in the courts of any such States.The Convention defines the conditions under which a judgment given by a court in one State which is a party to the Convention can be recognised or enforced in another.
Rights to compensation under this Convention will lapse if no action is brought within three years from the date when the damage occurred. However, in no case may an action be brought more than six years from the date of the incident which caused the damage.
Entry into force
The Council Decision calls on Member States to take the necessary steps to deposit their instruments of ratification of, or accession to, the Bunkers Convention within a reasonable time with the Secretary-General of the International Maritime Organisation, if possible before 30 June 2006. Member States are required to inform the Council and the Commission, before 30 June 2004, of the prospective date of finalisation of their ratification or accession procedures.REFERENCES Act Entry into force - Date of expiry Deadline for transposition in the Member States Official JournalDecision 2002/762/EC20.09.2002 - L 256 of 25.9.2002Last updated: 14.5.2007
Maritime safety: compensation fund for oil pollution damage
This proposal aims to improve the liability and compensation arrangements for pollution damage caused by ships.
Proposal for a regulation of the European Parliament and of the Council on the establishment of a fund for the compensation of oil pollution damage in European waters and related measures [COM (2000) 802 final - Official Journal C 120 E, 24 April 2001].
This proposal for a regulation forms part of the second package of Community measures on maritime safety . Following the sinking of the Erika, the Commission came to the conclusion that the existing liability and compensation arrangements failed to offer sufficient guarantees against oil pollution damage.
The objective of this proposal from the Commission is to set up a supplementary fund covering liability and compensation for pollution damage caused by oil tankers, designated COPE (Compensation for Oil Pollution in European waters fund), to pay compensation to the victims of oil spills in European waters.
The COPE Fund would top up the CLC (Convention on Liability of the Carrier) and IOPC (International Fund for Compensation for Oil Pollution Damage) systems in force at international level.
The objective of this proposal is to ensure adequate compensation for pollution damage in EU waters resulting from the transport of oil by sea and to introduce a financial penalty to be imposed on any person found to have contributed to an oil pollution incident.
The proposed regulation would apply to safeguard measures to prevent or minimise such risks and to pollution damage caused:
- in the territory, including the territorial sea, of a Member State;
- in the exclusive economic zone of a Member State, established in accordance with international law;
- if a Member State has not established such a zone, in an area beyond the territorial sea of that State and extending not more than 200 nautical miles.
A Fund for Compensation for Oil Pollution will be established to provide compensation to the extent that the protection afforded by the CLC Convention and the IOPC Convention is inadequate.
To this end, the COPE Fund will pay compensation to any person who is entitled to compensation for pollution damage under the IOPC Convention but who has been unable to obtain full and adequate compensation under that Convention.
No compensation will be paid by the COPE Fund until the Commission has approved the results of the relevant assessment of entitlement.
The Commission may decide not to pay compensation to any person in a contractual relationship with the carrier in respect of the operation during which the incident occurred.
Each Member State will be required to communicate to the Commission the name and address of any person who is liable to contribute to the COPE Fund. For the purposes of ascertaining who are liable to contribute to the COPE Fund and of establishing, where applicable, the quantities of oil to be taken into account for each such person, a list must be compiled and kept up to date by the Commission.
Member States will also have to lay down a system for imposing financial penalties on any person found by a court of law to have contributed, by wrongful intentional or grossly negligent acts or omissions, to an incident causing or threatening to cause oil pollution.
Three years after the entry into force of the regulation at the latest, the Commission will submit a report on the efforts made at international level to improve the international insurance and compensation arrangements.
Codecision procedure (COD/2002/0326) On 12 June 2002 the Commission adopted an amended proposal.
On 12 June 2002 the amended proposal was submitted to the European Parliament.
Last updated: 1.6.2007
Regulation 1774/2002 75/442/EEC
1. Regulation (EC) No. 1774/2002 of the European Parliament and of the council
This regulation sets out Community requirements for the control, importation and disposal of animal by-products. Under the Regulation international catering waste (IWC) is Category 1 material and must be disposed of accordingly.
2.The Waste Framework Directive (WFD) (Council Directive 75/442/EEC as amended)
This Directive is the overarching legislative measure on waste that requires that Member States take the necessary measures to ensure that waste is recovered or disposed of without endangering human health or causing harm to the environment.
In a recent guidance note published by the European Commission entitled "Guidance Note On The Application To Animal By-Products Of Community Legislation Regarding Animal And Public Health And Waste", the Commission confirmed its view that the EU Animal By-Products Regulation and the WFD apply concurrently to animal by-products that are discarded as waste. The Guidance note is available on the Commission's website http://www.ec.europa.eu
The draft Waste Management (England and Wales) Regulations 2005 include several amendments which are intended to ensure continuing compliance with the WFD following the repeal of Directive 90/667/EEC ("the Animal Waste Directive") and the introduction of the EU Animal By-Products Regulation. A consultation on the draft Regulations ran from 9 December 2004 to 18 March 2005. The consultation documents are available on the Defra website www.defra.gov.uk