# CE2008330EN.01000701.xml

| 30.12.2008 | EN | Official Journal of the European Union | CE 330/7 |
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30.12.2008

EN

Official Journal of the European Union

CE 330/7

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COMMON POSITION (EC) No 29/2008

COMMON POSITION

adopted by the Council on 9 December 2008

with a view to the adoption of Directive 2008/.../EC of the European Parliament and of the Council of ... on the insurance of shipowners for maritime claims

(Text with EEA relevance)

(2008/C 330 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

1

Having regard to the opinion of the Committee of the Regions (2),

2

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

3

Whereas:

| (1) | One element of Community maritime transport policy is to improve the quality of merchant shipping by making all economic operators act more responsibly. |
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(1)

One element of Community maritime transport policy is to improve the quality of merchant shipping by making all economic operators act more responsibly.

| (2) | Dissuasive measures have already been adopted under 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 (4). |
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(2)

Dissuasive measures have already been adopted under 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 (4).

4

| (3) | On 9 October 2008, the Member States adopted a statement in which they unanimously recognised the importance of the application of the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims by all Member States. |
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(3)

On 9 October 2008, the Member States adopted a statement in which they unanimously recognised the importance of the application of the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims by all Member States.

| (4) | The obligation to have insurance should make it possible to ensure better protection for victims. It should also help to eliminate substandard ships and make it possible to re-establish competition between operators. Furthermore, in Resolution A.898(21), the International Maritime Organization invited States to urge shipowners to be properly insured. |
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(4)

The obligation to have insurance should make it possible to ensure better protection for victims. It should also help to eliminate substandard ships and make it possible to re-establish competition between operators. Furthermore, in Resolution A.898(21), the International Maritime Organization invited States to urge shipowners to be properly insured.

| (5) | Non-compliance with the provisions of this Directive should be rectified. Directive 2008/.../EC of the European Parliament and of the Council of ... on port State control (recast) (5) already provides for the detention of ships in the case of absence of certificates which have to be carried on board. However, it is appropriate to provide for the possibility of expelling a ship which does not carry a certificate of insurance. The modalities of the expulsion should allow the situation to be rectified within a reasonable time period. |
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(5)

Non-compliance with the provisions of this Directive should be rectified. Directive 2008/.../EC of the European Parliament and of the Council of ... on port State control (recast) (5) already provides for the detention of ships in the case of absence of certificates which have to be carried on board. However, it is appropriate to provide for the possibility of expelling a ship which does not carry a certificate of insurance. The modalities of the expulsion should allow the situation to be rectified within a reasonable time period.

5

| (6) | Since the objectives of this Directive, namely the introduction and implementation of appropriate measures in the field of maritime transport policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives, |
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(6)

Since the objectives of this Directive, namely the introduction and implementation of appropriate measures in the field of maritime transport policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject-matter

This Directive lays down rules applicable to certain aspects of the obligations on shipowners as regards their insurance for maritime claims.

Article 2

Scope

1.   This Directive shall apply to ships of 300 gross tonnage or more.

2.   This Directive shall not apply to warships, auxiliary warships or other State-owned or operated ships used for a non-commercial public service.

3.   This Directive shall be without prejudice to the regimes established by the instruments in force in the Member State concerned and listed in the Annex hereto.

Article 3

Definitions

For the purpose of this Directive, the following definitions shall apply:

| (a) | ‘shipowner’ means the registered owner of a seagoing ship, or any other person such as the bareboat charterer who is responsible for the operation of the ship; |
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(a)

‘shipowner’ means the registered owner of a seagoing ship, or any other person such as the bareboat charterer who is responsible for the operation of the ship;

| (b) | ‘insurance’ means insurance with or without deductibles, and comprises, for example, indemnity insurance of the type currently provided by members of the International Group of P&I Clubs, and other effective forms of insurance (including proved self-insurance) and financial security offering similar conditions of cover; |
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(b)

‘insurance’ means insurance with or without deductibles, and comprises, for example, indemnity insurance of the type currently provided by members of the International Group of P&I Clubs, and other effective forms of insurance (including proved self-insurance) and financial security offering similar conditions of cover;

| (c) | ‘1996 Convention’ means the consolidated text of the 1976 Convention on Limitation of Liability for Maritime Claims, adopted by the International Maritime Organization (IMO), as amended by the 1996 Protocol. |
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(c)

‘1996 Convention’ means the consolidated text of the 1976 Convention on Limitation of Liability for Maritime Claims, adopted by the International Maritime Organization (IMO), as amended by the 1996 Protocol.

Article 4

Insurance for maritime claims

1.   Each Member State shall require that shipowners of ships flying its flag have insurance covering such ships.

2.   Each Member State shall require shipowners of ships flying a flag other than its own to have insurance in place when such ships enter a port under the Member State's jurisdiction. This shall not prevent Member States, if in conformity with international law, from requiring compliance with that obligation when such ships are operating in their territorial waters.

3.   The insurance referred to in paragraphs 1 and 2 shall cover maritime claims subject to limitation under the 1996 Convention. The amount of the insurance for each and every ship per incident shall be equal to the relevant maximum amount for the limitation of liability as laid down in the 1996 Convention.

Article 5

Inspections, compliance, expulsion from ports and denial of access to ports

1.   Each Member State shall ensure that any inspection of a ship in a port under its jurisdiction in accordance with Directive 2008/.../EC, includes verification that a certificate referred to in Article 6 is carried on board.

2.   If the certificate referred to in Article 6 is not carried on board, and without prejudice to Directive 2008/.../EC providing for detention of ships when safety issues are at stake, the competent authority may issue an expulsion order to the ship which shall be notified to the Commission, the other Member States and the flag State concerned. As a result of the issuing of such an expulsion order, every Member State shall refuse entry of this ship into any of its ports until the shipowner notifies the certificate referred to in Article 6.

Article 6

Insurance certificates

1.   The existence of the insurance referred to in Article 4 shall be proved by one or more certificates issued by its provider and carried on board the ship.

2.   The certificates issued by the insurance provider shall include the following information:

| (a) | name of ship, its IMO number, and port of registry; |
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(a)

name of ship, its IMO number, and port of registry;

| (b) | shipowner's name and principal place of business; |
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(b)

shipowner's name and principal place of business;

| (c) | type and duration of the insurance; |
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(c)

type and duration of the insurance;

| (d) | name and principal place of business of the provider of the insurance and, where appropriate, the place of business where the insurance is established. |
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(d)

name and principal place of business of the provider of the insurance and, where appropriate, the place of business where the insurance is established.

3.   If the language used in the certificates is neither English nor French nor Spanish, the text shall include a translation into one of these languages.

Article 7

Penalties

For the purposes of Article 4(1), Member States shall lay down a system of penalties for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties provided for shall be effective, proportionate and dissuasive.

Article 8

Reports

Every three years, and for the first time before 1 January 2015, the Commission shall present a report to the European Parliament and the Council on the application of this Directive.

Article 9

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 2012. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 10

Entry into force

This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

Article 11

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

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(1)  OJ C 318, 23.12.2006, p. 195.

1

(2)  OJ C 229, 22.9.2006, p. 38.

2

(3)  Opinion of the European Parliament of 29 March 2007 (OJ C 27 E, 31.1.2008, p. 166), Council Common Position of 9 December 2008 and Position of the European Parliament of ... (not yet published in the Official Journal).

3

(4)  OJ L 255, 30.9.2005, p. 11.

4

(5)  OJ L ...

5

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ANNEX

| — | The International Convention on Civil Liability for Oil Pollution Damage, 1992. |
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The International Convention on Civil Liability for Oil Pollution Damage, 1992.

| — | The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (HNS Convention). |
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The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (HNS Convention).

| — | The International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (‘Bunker Oil’ Convention). |
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The International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (‘Bunker Oil’ Convention).

| — | The Nairobi International Convention on the Removal of Wrecks, 2007 (‘Wrecks Removal’ Convention). |
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The Nairobi International Convention on the Removal of Wrecks, 2007 (‘Wrecks Removal’ Convention).

| — | Regulation (EC) No .../2008 of the European Parliament and of the Council of ... on the liability of carriers of passengers by sea in the event of accidents (1). |
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—

Regulation (EC) No .../2008 of the European Parliament and of the Council of ... on the liability of carriers of passengers by sea in the event of accidents (1).

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(1)  OJ L ...

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

The Commission presented a proposal for a Directive of the European Parliament and of the Council on the civil liability and financial guarantees of shipowners on 31 January 2006 (1) as one of the proposals of the third maritime safety package.

On 29 March 2007, the European Parliament voted its opinion at 1st reading (2).

On 9 October 2008, the Council reached a political agreement on a draft Directive on the insurance of shipowners for maritime claims. Following legal/linguistic revision, the Council adopted its Common Position on 9 December 2008 in accordance with Article 251 of the Treaty.

In carrying out its work, the Council took account of the opinions of the Economic and Social Committee (3) and of the Committee of Regions (4).

II.   ANALYSIS OF THE COMMON POSITION

General

The proposal for a Directive on the civil liability and financial guarantees of shipowners, presented by the Commission beginning of 2006, forms part of the third maritime safety package. The Commission proposal aimed at harmonising, at Community level, the regime of civil liability of shipowners and the related ceilings and at introducing a compulsory insurance scheme and financial guarantees for seafarers in case of abandonment.

Although the Council agrees with the objective of the Commission proposal striving for more effective coverage of the interest of victims of damages resulting from the operation of ships, it considers that several provisions of the proposal, creating specific Community rules in parallel to international obligations regarding the same matter, would result in a contradictory situation and be counterproductive in relation to the above mentioned objective. This applies in particular to the provisions relating to the liability regime and the measures concerning seafarers. The proposed provisions rendering the ratification of an IMO Convention mandatory are not acceptable for Member States, particularly for constitutional reasons. Furthermore, the Council deems some provisions, in particular those related to issuing and verifying of certificates, inappropriate as they would create unnecessary administrative burdens.

The Council's Common Position strives for establishing provisions of clearly added value, which currently do not exist nor at international neither at Community level. It therefore focuses on the introduction of an insurance obligation for shipowners at the level of the ceilings laid down in the Convention on Limitation of Liability for Maritime Claims, as amended by the 1996 Protocol (‘LLMC 96’). It specifies the measures to implement this obligation by means of verifications of a certificate that has to be kept on board of the ships to this effect and provides for sanctions in case of non compliance.

Thus, the Council's Common Position modifies, to a large extent, the original Commission proposal by redrafting it and deleting several parts of the text. This implies that all amendments introduced in the European Parliament's first-reading opinion related to these deleted parts were not accepted by the Council.

In parallel to the Common Position, a declaration of the representatives of the Governments of the Member States of the European Union (5) confirms their commitment to do the utmost with a view to ensuring a rapid and effective application of the international conventions on maritime safety, the IMO rules related to flag State obligations and the IMO audit.

Key policy issues

i)   Mandatory insurance for maritime claims

The Council follows the proposal by the Commission to introduce an insurance obligation for shipowners of ships flying the flag of a Member State and those of ships flying the flag of another State. Relating to the latter, the Council's Common Position specifies that this applies as soon as the ship enters a port under a Member State's jurisdiction, or, if so decided by a Member State, when the ship is operating in its territorial waters.

With a view to a harmonised global level of insurance cover, the Council, in its Common Position, refers to the ceilings laid down in the LLMC 1996 as amount of the insurance for each ship per incident. The term ‘insurance’, used in the Common Position, is largely based on the definition set out in IMO Resolution A.898(21) (‘Guidelines on shipowner's responsibilities in respect of maritime claims’).

ii)   Control, compliance and penalties

In order to control the compliance of shipowners with their insurance obligation, the Common Position provides for a verification by the port State, in accordance with the Directive on Port State Control. To this effect, one or more certificates issued by the insurance provider have to be carried on board of the ship. The specificities of the certificate set out in the Common Position are based to a large extent on the original Commission proposal.

The Council considers it important to foresee the possibility for specific sanctions in case the insurance certificate is not carried on board. Without prejudice to the detention of the ship concerned according to the rules on port State control, the ship can be expelled from a port and will be denied entry into any of Member States' ports as long as the situation is not rectified. The Common Position also includes a general provision of penalties to be established for non compliance with the Directive, relating to the Member States' obligation as flag States.

iii)   Relation to regimes established in accordance with other liability and compensation instruments

Following the Commission proposal, the Council provides in its Common Position that the Directive does not affect the regimes established according to other international Conventions, namely the CLCConvention, the HNS Convention, the Bunker Oil Convention and the Wrecks Removal Convention, as well as the Regulation transposing the Athens Convention into Community law.

III.   CONCLUSION

The Council believes that its Common Position is a tool that contributes to an effective compensation of victims of damages resulting from the operation of ships and to eliminating substandard ships.

The Council notes the contacts which have already taken place with the European Parliament on this proposal in the framework of the negotiations on other proposals of the third maritime safety package. It looks forward to a quick agreement on the text allowing the adoption of the Directive as soon as possible.

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(1)  Doc. 5907/06.

(2)  Doc. 7805/07 CODEC 277 MAR 20 ENV 171.

(3)  CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195).

(4)  CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).

(5)  Doc. 15859/08 ADD 1.

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