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Opinion of the Committee of the Regions on the 3rd Maritime Safety Package

(2006/C 229/06)

THE COMMITTEE OF THE REGIONS,

HAVING REGARD TO the letter from the European Commission of 25 November 2005 requesting the CoR's opinion on the 3rd Maritime Safety Package;

HAVING REGARD TO the Communication from the Commission on The Third package of measures in favour of maritime safety and the seven Directives included: COM(2005) 586 final; COM(2005) 587 final; COM(2005) 588 final; COM(2005) 589 final; COM(2005) 590 final; COM(2005) 592 final; COM(2005) 593 final;

HAVING REGARD TO the decision of the Bureau of 12 April 2005 to instruct its Commission for Territorial Cohesion Policy to draw up an opinion on this subject;

HAVING REGARD TO the motion for a European Parliament resolution on improving safety at sea in response to the Prestige accident (2003/2066(INI)), and the work of the MARE Committee (MARE Resolution);

HAVING REGARD TO the opinion expressed by the European Community Shipowners' Associations (ECSA) on behalf of European shipowners associations and their members, and dated, June 2004, and the opinions expressed by the European Seaports Organisation (ESPO), on behalf of European seaports, and dated 10 June 2004 and 10 March 2005, as well as the opinions expressed by INTERTANKO on behalf of its members, dated January 2006;

HAVING REGARD TO the work of the Maritime Safety Umbrella Operation (MUSO) as presented during the seminar addressing: Refuge Area Best Practice: Identification, Planning and Stakeholder Involvement, 23 and 24 February 2006 and the suggestion made during this meeting for the development of a Casualty Management Framework through IMO, that should be incorporated into this Directive;

HAVING REGARD TO the International Maritime Conventions of IMO, including all associated and current assembly resolutions and amendments;

HAVING REGARD TO its draft opinion (CdR 43/2006 rev. 2) adopted on 5 April 2006 by its Commission for Territorial Cohesion Policy (rapporteur: Cllr Flo Clucas (UK/ALDE) (Member of Liverpool City Council);

Whereas:

adopted the following opinion at its 65th plenary session, held on 14 and 15 June 2006 (meeting of 15 June):

The Committee of the Regions,

believes that the third Maritime Safety Package ‘Erika III’ has the potential to considerably improve the safety of maritime transport:

1.   Proposal for a directive on the responsibility of the flag states

RECOMMENDATIONS

Recommendation 1.1

Article 1

Reason

Thus far the interpretation of the IMO Conventions has been left to the flag State administrations, or the courts acting on their behalf, causing differing interpretations and varying standards. To harmonise the interpretation of IMO Conventions, the interpretation of IMO of its Conventions ought to be mandatory.

Recommendation 1.2

Article 2

Reason

The Code of Safe Practice for Ships carrying Timber Deck Cargoes should be included in all Directives of the third Maritime Safety Package for the following reasons:

The Code of Safe Practice for Dry Bulk Cargoes should be included in all Directives of the third Maritime Safety Package, as bulk carriers have been found to be some of the most dangerous vessels. Handling dry bulk cargoes safely and correctly including their stowage and trimming, sequence of loading of the cargo holds of the vessel in conjunction with de-ballasting in order not to unduly stress the vessel are important for the safety of the ship. Apart from the fuel oil the vessel carries, some dry bulk cargoes are marine pollutants.

Recommendation 1.3

Article 5

Reason

To stop the undesirable practice of creating the possibility of ‘substandard ships’ by out-flagging to a less demanding register and in case of disputes with the flag State regarding the safety, manning, operation, and maintenance of the vessel.

2.   Proposal for a directive on port state control

RECOMMENDATIONS

Recommendation 2.1

Article 5

Reason

Endeavouring to inspect 25 % of the vessels will not change the present situation.

Recommendation 2.2

Article 7

Reason

Any vessel leaving port has to routinely comply with the condition of seaworthiness including cargo worthiness. Existing deficiencies may interfere with complying with these obligations.

Recommendation 2.3

Article 12

Reason

Not every vessel is managed by its owner. Some ships are owned by banks, who elect to have the vessel managed and operated by a ship manager on their behalf.

Recommendation 2.4

Article 20

Reason

Naming them each in the article prevents having the term ‘ship operator’ to be interpreted by the courts to include the offending party. Also, naming them explicitly hopefully ensures that shipowners, ship managers, ship operators, charterers, ships, and terminal operators keep an eye on each other's performance, as being named in the ‘grey or black list’ is detrimental to business.

Recommendation 2.5

Annex VIII C as referred to in Article 8

Reason

Bulk carriers suffer the same ballast tank problems as double hulled tankers do. Ballast tanks are subject to the accumulation of sediments and liable to serious corrosion. Wastage of structural steel, fatigue cracking or buckling of stiffeners affect the safety of the vessel, if they occur can be identified only by a visual inspection, and for this reason should be included in port State control inspections.

3.   Proposal for a directive on a Community vessel traffic monitoring and information system

RECOMMENDATIONS

Recommendation 3.1 Am. 5

Article 1

Reason

The Commission sets out in the Explanatory Memorandum that there is a clear need of making the existing provisions regarding ships in distress in places of refuge clearer and more focused. Therefore the Commission introduces that the accommodation of a ship in distress in a place of refuge shall be the subject of a prior assessment of the situation and a decision taken by an independent competent authority designated by the Member State.

The introduction of the independent competent authority is recommendable as it will guarantee a more objective decision on where a ship in distress can be best accommodated. This proposal shifts decision making power regarding the accommodation of a ship from the local port authority to a national authority. To maintain some interaction and to establish a relation based on trust between the local port authority and the national authority an obligation to consult the port authority is highly recommendable.

Moreover, as the final decision on accommodating a ship in distress is being made by the independent competent authority, the powers of the port authority can be overruled. The possibility for the national authority to overrule the local port authority can leave the latter with a financial burden of a decision which has not been taken by the port authority. It is not logical that port authorities will need to find compensation for costs and damage which are not caused by their own operations nor resulted from a decision the port authority has taken itself.

It is therefore recommendable that the independent competent authority will be fully liable for his decisions and responsible for compensation.

Recommendation 3.2 Am.6

Article 1

Reason

Already while drawing up a plan for responding to threats presented by ships in distress in the waters of the Member States it is recommendable that the compensation procedure for potential costs and damage occurring as result of ships accommodated in a place of refuge is included.

Local port authorities and communities may be exposed to pollution or other dangers, such as an explosion, while there may be economic damage if the port, bridges, locks or roads are blocked as a result. Such economic damage may be substantial and can increase very fast. The blockade can also have effects beyond the port area as various companies in the hinterland rely on the goods shipped through the port. However, the international funds compensate damage related to oil pollution and do not cover the economic loss ports encounter.

In the absence of insurance requirements for all ships, there is not guarantee that the ship has liability insurances and, even if it has, claimants may not have access to it if the insurer can use any of its defences.

The Directive proposal on civil liability and financial securities of shipowners, will bring substantial improvement to the existing legal framework. However, it is recommendable that the provisions of the Vessel Traffic Monitoring Directive are further improved to ensure that port authorities and local authorities will have clear guarantees that damage and costs related to the accommodation of ships in distress will be fully and promptly compensated.

In this way port and local authorities will be encouraged to play a pro-active role in offering a place of refuge and this will also ensure an effective and efficient cooperation with the independent competent authority the Commission seeks to establish in every Member State.

The Commission has left such compensation for port authorities open in the Third Maritime Safety Package even if the European Parliament explicitly asked the Commission in its 2004 Resolution on Improving Safety at Sea to submit proposals for financial compensation for places of refuge (1).

Recommendation 3.3 Am.7

Article 1

Reason

Port Authorities rank among many creditors of the vessel. They have to share, with these various parties, the compensation amount which is available from the international funds or from the ship's insurance. They often stand last in the queue for compensation despite the far reaching responsibility to accommodate a ship in distress. Moreover, the international funds compensate damage related to oil pollution and do not cover the economic loss ports encounter.

Smaller ports and communities affected by damage resulting from obligatory accommodation of a ship in distress may not have the manpower, financial means or legal expertise to be confronted with long lasting legal action against the ship's operator, agent or master to recover costs and damage while not even having the final authority in taking this decision.

4.   Directive establishing the fundamental principles governing the investigation of accidents in the maritime transport sector

RECOMMENDATIONS

Recommendation 4.1

Article 2

Reason

In its Directives on ‘Port State Control’ and ‘Flag State Responsibility’, the Commission rightly described fishing as one of the most dangerous activities. The smaller the vessel, the more accident prone it is with frequent loss of life! For this reason it is proposed to delete item (d) of Article 2 and to investigate accidents and incidents involving fishing vessels in the same thorough way as this Directive proposes to investigate accidents and incidents involving merchant ships.

5.   Directive to establishing common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations

RECOMMENDATIONS

Recommendation 5.1

Article 12

Reason

It is believed to more acceptable to the offending party if fines are levied by the European Court of Justice using the advice of the Commission rather than directly by the Commission.

Recommendation 5.2

Article 20

Reason

The period of reclassification is generally four years with a one-year grace. In practice this works out as about five years. At the age of 10, a vessel is no longer as operationally efficient as a newer one. Also steel replacement may be required in bulkheads and stiffeners and pipe work for water ballast and cargo may be in need of replacement, especially the bends. This is the ideal time to sell the vessel on, relatively cheaply, and have the new owner performing and paying the repair work. The new owner is usually a less demanding one and the new flag often a flag of convenience. Equally, the new classification society is not necessarily a ‘recognised organisation’ as defined by the Commission.

6.   Regulation on the liability of carriers of passengers by sea and inland waterways in the event of accidents

7.   Directive on the civil liability and financial guarantees of shipowners

RECOMMENDATIONS

Recommendation 7.1

Article 1

Reason

The term ‘operators and users of ships’ includes charterers other than bare boat charterers who use ships, including substandard ships under time-, trip-, voyage-, and consecutive voyage charters. They must be included in this Directive and bear the same obligations as ‘shipowners’, as defined in this Directive, do, i.e. provide a financial guarantee. After all, it is their oil that causes the pollution! This would have the following effects:

Recommendation 7.2

Article 2

Reason

The possible question as to ‘who is an operator’ should be forestalled.

Local and regional authorities are key players in implementing the strategy whether in cleaning up polluted areas, providing safe havens for vessels, assisting those in difficulty, or where local citizens are themselves seafarers, or rescuers of those in peril. It is disappointing therefore that the 3rd Maritime Safety Package does not give sufficient importance to the role that such authorities can play in achieving the intended results.

Brussels, 15 June 2006.

The President

of the Committee of the Regions

Michel DELEBARRE

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(1)  European Parliament Resolution on Improving Safety at Sea – Rapporteur Dirk Sterckx cf.

http://www.europarl.eu.int/comparl/tempcom/mare/pdf/res_en.pdf

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