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Thursday, April 19, 2018

PHASE II OF EUROPEAN PROPOSALS

With reference to the Weekly NEWS No. 42/2000 article on the second wave of Erika-proposals presented by the European Commission, a more detailed report on the industry consultation meeting in Brussels on 16 October can be found below.

ERIKA 2 PACKAGE OF PROPOSALS
DGTREN/INDUSTRY CONSULATATION MEETING
BRUSSELS, 16TH OCTOBER 2000

SUMMARY RECORD

The meeting was chaired by Willem De Ruiter of DGTREN.

1. A European Maritime Traffic Reporting System

The Commission stressed the complexity of the issue and tabled the attached paper setting out the envisaged system. It represented further thoughts on the meeting papers and additional ideas from industry were welcomed. Introducing the first element applying to all ships (the European Traffic Information System), it was noted that for ships destined for EU ports the requirement essentially reiterated the current situation, although the suggested 48 hrs notification period could be reduced to 24hrs and perhaps harmonised. As regards the ships in transit, the existing international reporting obligations only would be referred to, in contrast to the working paper. The aim in the latter regard was to make better use of the information as between ports and operational centres.

The second element (an Improved Hazmat Directive) reiterated the current requirement to notify details of the dangerous goods to the EU port of destination at the time of departure. Greater flexibility would be introduced in relation to who should provide the information and would introduce the “sleeping” system concept whereby a Member State would have the option notifying the information to either the competent authority or to the port authority. Such information would be held by the recipient until needed. For ships in transit, the IMO Mandatory Reporting System would operate. The coverage as regards the latter was considered poor, especially in the Mediterranean, and Commission would be taking up the issue in the IMO. The mandatory use of EDI as between the ship and authority and between authorities was envisaged.

The basic aim of the two elements was to simplify the system so as to improve maritime safety and the response in case of accidents.

The following attempts to highlight the points made by participants and the reactions of the Commission:

  • The basic aim of simplifying the current arrangements was welcomed in principle. The Master should not be overburdened with requirements to provide information and a cost benefit of the scheme should be made.
  • Elements which lead to the stalemate position on the 1993 Eurorep proposal ie competence, international legal issues re transiting ships needed to be taken account of/resolved.
  • A proliferation of information could be counterproductive and a limitation to dangerous goods would therefore be sensible. Duplication with other initiatives eg EQUASIS should be avoided.
  • The destination of vessels sometimes changed or was not known at the point of departure. DG TREN suggested a solution similar to the Reception Facilities directive ie a requirement to notify 24 hrs prior to arrival where known; or as soon as port known; or at the latest upon departure from previous if voyage less than 24 hrs.
  • Further thought was needed as to whether the 300 GT limit was appropriate. It was noted that the figure was used widely.
  • On the inclusion of bunkers, industry suggested that it would be more practical for the port authority to estimate bunker capacity, EQUASIS possibly being helpful in that context. The quality of the fuel would also need to be assessed. Many parties felt that further consideration was needed. DGTREN maintained their wish to have at least an estimate of volume of bunker fuel on board when entering EU waters.
  • DGTREN did not intend to go ahead of IMO in relation to the phasing in of transponders.  
  • The “ports of refuge” concept was interesting but DGTREN had no plans to take up the issue at the EU level for the foreseeable future. Developing the idea within EU regions could have merit in the longer term.
  • DGTREN recognised that while the EDI requirement made sense generally, there was a need for flexibility to take account of trades, eg dry bulk, where EDIFACT was not used.
  • The issue of hazardous dry bulk cargoes needs to be considered, comments being invited.
  • DGTREN said that the fact of having a directive would provide the proper legal basis.
  • The possibility of having exemptions for regular traffic (eg ferries) needed further study.
  • For clarification, under the title “Nature of the processed data” on P5 of the working paper, the ship would be expected to provide information as set out in points 1, 3 and 4 ie not 2 relating to the condition of the ship.
  • As regards “ships posing a particular risk” on P7 of the working paper they could include ships banned under the PSC Directive or in a distress situation. It would depend on the particular circumstances. Further consideration was needed on this category.
  • It was noted that MARPOL has reporting requirements that should be taken into account.    

Further comments in writing were welcomed, by 31st October at the latest.

2. Liability and Compensation

The Commission opened by explaining that the fact that the IMO’s Legal Committee was meeting the same day was purely coincidental. In noting that the circulated paper represented a summary of the intended approach, DGTREN said that the way forward had recently been presented to Government Heads in Biarritz. The essential issue was that the maximum funds available under the CLC and Fund Conventions, even if raised by 50% as under discussion in IMO, was insufficient to meet potential claims. This was not acceptable to the Commission. They stressed that it was not their intention to undermine the international system and that the third tier applied to spills occurring in EU waters and would only come into play if the ITOPF assessment was that the funds available at its disposal were insufficient to meet the claims. They hoped that it would be a temporary measure until the regime had been satisfactorily amended in IMO.

The following points were made in discussion:

  • OCIMF, supported by shipowner bodies, P&I Clubs and ITOPF among others, stressed the delicate balance between the different interests in the current regime and the very real dangers of such a balance being de-stabilised by the introduction of an EU third tier top up fund. The CLC/Fund should be considered as a package. Changes to the system were required but these should be, and were being, addressed in the IMO context. The ESC and the Unions backed the Commission’s proposals but did not substantiate their comments, the impression given that their views did not carry weight with DGTREN.
  • OCIMF, UPEI (independent traders) and ESC considered that the suggestion that oil receivers should exclusively fund the third tier was inequitable. Shipowners should also bear some of the cost, ESC being the most vocal on the point.
  • Any decision on liability should take account of the facts and figures re the experience of operating the CLC/Fund. Decisions should not be taken in haste.
  • ITOPF referred to and presented a table indicating actual costs of non USA spills 1990-1999 compared to increased 1992 CLC and 1992 Fund limits (a copy is available on request). This demonstrated that only two claims (Erika and Nakhodka) approach or exceed the increased 1999 limits, that 95% of claims have been paid by owners and that owners and oil receivers have made a 50/50 contribution to the total compensation provided. Without the two vessels above, costs borne by owners increases to 71%.
  • Shipowners also stressed the element of strict liability for the shipowner in the current system. It was also underlined that the present system provided an effective and user-friendly method for the claimant/victim to be compensated.      
       
  • As regards the question of introducing criminal liability into the picture, DGTREN said in a brief discussion the concept was gaining momentum within Europe. It was not, however, DGTREN’s intention to put forward a EU proposal in this regard in the foreseeable future.

European Maritime Safety Agency

The Commission explained the independent nature of the Agency in that the governing Board would be largely made up of Member States representatives (15) plus a representative from the Commission and the EP. Staff would be mainly experts seconded from Member States on contracts of limited duration. It was the only way in practice to form a body with the necessary expertise to enable the Commission to carry out its obligations. Its goal would be to inter alia update technical annexes of directives, to ensure the harmonised application of psc, classification societies and reception facilities legislation, to encourage the exchange of information as between different players and to ensure that accession countries put in place the necessary structures in line with EU maritime law. They could also have a role in relation to accident investigations, although the flag state would retain the prime responsibility. The agency would be Community funded. 

In a brief discussion, the following points were made:

  • The unions welcomed the initiative, and urged that it should include manning and training issues. OCIMF and IACS supported the concept in principle, the former indicating that issues of sovereignty could surface, while the latter felt its role in relation to classification societies could be helpful if clearly defined.
  • Shipowners, while fully supporting the idea of monitoring/ensuring an effective application of safety legislation, were more cautious, stressing that it could raise suspicions for Member States as to its role in the future, and possibly undermine the link between national associations and administrations. There was also a risk that an Agency, with the tasks as tabled, could undermine the competence of i.a the Paris MOU and flag states, and duplicate tasks. In any event, it was primarily a matter for Member States to decide, institutional questions being raised.

The Commission agreed that it was mainly an issue for Member States. It was the intention that all three proposals be adopted by the Commission by Christmas, although there was a possibility of a delay of a few weeks for a particular proposal.