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Sunday, July 22, 2018

POSSIBLE EU-IMPLICATIONS FOLLOWING THE ERIKA OIL SPILL

Whenever a tanker accident and/or an oil spill occur, INTERTANKO is in the firing line whether the tanker is a member or not. In each case there are lessons to learn and actions to be taken. Furthermore experience also show that accidents inevitably lead discussions on stricter implementation of policy instruments and introduction of new rules.

INTERTANKO has therefore been carefully monitoring the reactions in France and particularly in the European Union in the aftermath of the Erika accident.  In order to provide an as early as possible expert opinion to the deliberations, INTERTANKO has over the last two weeks had a range of informal contacts not the least with the Commission.  A meeting has also been requested with EU Transport Commissioner de Palacio to discuss these matters further.  INTERTANKO will also meet with the French Ministry of Transport next week.

The Erika accident could now be seen as one of the worst oil spill catastrophes in European history.  Although considerable political activity followed public uproar in France, the European Commission did not fully appear on the scene until early last week. François Lamoureux (F), DG Transport’s new Director General had held preliminary discussions with relevant French ministers over Christmas but an official press conference with Maritime Director, Georgette Lalis’s last Wednesday, revealed the first thoughts in the Commission.  The detected lines of thought were then expanded on by the Commissioner, Mrs De Palacio, in a TV debate on French television last Monday.

Over the last few days, INTERTANKO has held informal discussions with key Commission officials who have implied that the EU’s reaction to the Erika was likely to cover ground which has previously been left unexplored in the wake of oil spills.

The main change in the Commission’s plans came when the Communication on Quality Shipping to be presented before the end of last year was stalled in the last minute while the Commission awaited results from the Erika spill.  It is our understanding that the text of the Communication will now be reworked addressing a much broader scope.  Whereas the initial idea was to focus on the achievements of the Quality Shipping Campaign to date, and to present EQUASIS, the ship information database, the working title of the communication has now been changed to “Safety at sea: the responsibilities of flag states, port states and the industry”.  This Communication which is expected in May will effectively provide a work programme for the French Presidency due to start in July and probably partly for the Swedish presidency which will follow in the first half of 2001. 

Compared to the Commission’s reactions following earlier accidents, a different and wider approach for tackling the identified problems can be detected.  In line with the awareness-raising aspects of the Quality Shipping Campaign, focus and responsibility are now being spread out further.  A list of issues has now emerged after a first week of intense internal deliberations.

Cargo owner liability

The first and immediate issue to address will be the cargo-owners’ financial liability, perceived or real lack thereof.  Both DG Transport and DG Environment (insofar as they have commented) have indicated that the current system of international oil pollution compensation (CLC and Fund conventions) seems appropriate.  The Commission, however, has clearly stated that it intends to look into the level of funds available under the existing system.  In this regard emphasis is also being placed on the possibilities for increased cargo-owner liability, both in order to increase the total amount of funds available and in order to introduce better incentives for cargo owners to use quality tonnage.

Technical issues

As mentioned already, public opinion usually tends to point at structural flaws in maritime accidents, as it does with air crashes. There is a growing political sentiment that Europe must set standards on double hulls.  Many feel that since the US has its own rules the “bad single hull tonnage trade in Europe”.  This despite of the fact that as you know, arguments in favour of double hull do not carry much weight in the explanation of the course of events in this particular accident.

There have been reports that the Erika was one of 8 sister ships, 3 of which suffered from structural deficiencies from the very start.  A main question could now arises as to why this information was (allegedly) not available to operators and why similar patterns of control are not followed in the shipping industry as in aviation (i.e. when one aeroplane has a problem all of the same type are grounded for further investigation).  Politically, the Commission will have to address structural issues in order to satisfy public demand.  It is therefore very likely that technical requirements for the construction of vessels will be expanded on.  Furthermore the issue of age limitations might once again come into the picture.

Port state control

In terms of port state control, a range of amendments have been introduced to the Paris MOU and the EU Directive on PSC over the last two years.  The issue of targeting has been addressed and a more efficient fulfilment of the 25% inspection rate has been sought.  Together with an improvement on the amount of information to be collected and publicised, it is likely that the next step now will be to include charterer information.  Clearly this will not be an easy task.  Firstly, the difference between “charterer” and “cargo owner” might create problems.  Secondly, in the case of oil transport at least, there is the problem of buying and selling of cargoes under way.  It is clear, however, that to have some sort of public “naming and shaming” of charterers that willingly and knowingly make use of low quality tonnage will be high on the quality ship owners’ wish list.

Transparency/EQUASIS

Just before the Erika sank, a first meeting of the so called Editorial committee of the EQUASIS was called for the 15th of February.  More than ever before the question will now be: what sort of information should the EQUASIS database contain in order to reduce the likelihood of further Erika-incidents?  The Commission is exploring different ways to link existing sources, and to gain access to charterer information.

Flag state implementation

The issue of flag state implementation has not yet been addressed as a particular point of attention, except that Malta and Cyprus have been put under severe pressure to shape up as EU applicants.  But we would not exclude the possibility of the more general issue of flag state implementation coming up - let alone the even more general issue of the whole legitimacy of the use of open registries - the latter having actually already been raised in France.

Classification societies

RINA and BV are being investigated in direct connection with the Erika accident and the Commission is likely to find reason to re-evaluate the rules governing class societies.  Indeed,  the Commission has already announced its intention to revise the substance as well as the implementation (and monitoring) of the Directive on classification societies.  We must expect that a main element in that process will be to examine the relationship between class, flag state, port state and the owner.

At its Executive Meeting in London 25& 26 January, INTERTANKO will discuss the following issues which will be high on the agenda for INTERTANKO’s Work Programme over the coming months:

1.  Accident Investigation

2.  Public Concern

3.  Transparency

4.  Information available - EQUASIS

5. Chartering of Substandard Vessels

6. Port of Refuge

7. Compensation

8. The Role of IACS/Class

9. Role of the Flag

10. Liability Issues