Opinion of the Committee of the Regions on the 3rd Maritime Safety Package
Date: 2006-06-15
Institutions: European Committee of the Regions
Subjects: International Maritime Organisation, harbour installation, information system, international standard, liability, maritime safety, prevention of pollution, transport accident, transport safety

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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 Terri-
torial 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 Resolu-
tion);

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 Manage-
ment 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 Commis-
sion for Territorial Cohesion Policy (rapporteur: Cllr Flo Clucas (UK/ALDE) (Member of Liverpool City
Council);

Whereas:

1)

2)

3)

4)

5)

the fact that substandard shipping still persists and that further action is needed to combat those
flag States, classification societies, shipowners, ship managers, charterers, terminal operators and
ship masters that continue to conduct their business in an irresponsible manner to further commer-
cial gain and with disregard for international rules and safe practices;

maritime accidents and incidents that resulted in loss of life and pollution of the oceans, regional
and local coastal and maritime area, and thereby causing substantial economic losses, serious envir-
onmental damage and considerable public concern;

the importance of a vibrant and competitive European maritime transport system for regions and
cities — particularly those involved in maritime industries, exports and economic links;

the need to ensure coordination with the maritime strategy of the EU, the requirement for mutual
synergies and the potential for offering regional and local authorities realistic solutions.

the subsidiarity and proportionality principles are of particular relevance to EU measures in the field
of transport, as the EU, Member States and regions often share responsibility for legislation and
implementation;

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6)

the new framework of legislative proposals must:

— be compatible with prevailing international standards and agreements within the IMO;

— respect recent international developments.

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:

tions prior to changing classification society and/or flag of
registration of a vessel. Further, full compliance with IMO reso-
lutions should be a prerequisite for acceptance of a vessel by a
classification society and/or a flag State, and of the vessel's
remaining in class and on the register;

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

states

1.9
expresses its agreement that the existing body of the
maritime labour instruments will be embodied in this Directive;

1.1
thinks that increasing the responsibility of flag States
and harmonising the interpretation of the IMO conventions
including all their up-to-date assembly resolutions and amend-
ments will be of substantial benefits to the European fleet;

highlights its concern over seafarers' working time,
1.10
the fatigue resulting from constant overworking and the
dangers of errors, accidents, damage, and possible pollution
associated with overworking and inadequate rest periods may
cause;

is of

the opinion that

1.2
the specific proposals put
forward to increase the pressure on sub-standard ships,
rewarding well operated vessels, and increasing the pressure on
the flag States to comply with their responsibilities under the
IMO Conventions, are the correct way forward;

agrees revoking IMO Resolution A.847(20) and repla-
1.3
(23) whereby Member
cing it with IMO Resolution A.(…)
States have to discharge effectively and consistently their obli-
gations as flag States in accordance with IMO Conventions and
taking account of IMO Resolution A.(…)(23);

believes that the economic and social distortions as
1.4
well as the use of under qualified crews caused by the varying
interpretation of IMO Conventions by flag States need to be
corrected;

1.5
is of the opinion that the best way to harmonise the
interpretation of IMO Conventions including all their up-to-
date assembly resolutions and amendments,
is to uniformly
apply throughout the EU, IMO's own interpretation of these
conventions;

argues that

the syllabuses and training requirements
1.6
leading to professional maritime qualifications
should be
harmonised throughout the EU, and that this should be made
an integral part of the mutual recognition of certificates of
competency;

is concerned about the possibility and practice of chan-
1.7
ging classification society and/or flag State in case of disagree-
ment between shipowner/ship manager and the classification
society and/or the flag State in matters relating to safety,
manning, maintenance, equipment, and operation of the vessel;

1.8
suggests that classification societies and flag States
should insist on full compliance of the vessel with IMO conven-

1.11
is of the opinion that leaving the right to exempt
ships from the application of basic flag State rules to the sole
and entire discretion of the individual administrations could
and does result in different levels of safety being achieved in
different Member States and distorts competition between flag
States. For this reason, the right to exempt should be curtailed
to, e.g. naval vessels exclusively;

1.12
recommends that the harmonised interpretations of
technical safety standards, at present applicable to passenger
vessels … as per Article 12 of Council Directive 98/18/EC of
March 1998, should be applied to all merchant ships and
fishing vessels;

advocates maximum cooperation between the mari-
1.13
time authorities and the local authorities in order to adopt an
integrated approach towards tackling issues connected with
maritime navigation and the impact on the region's economic
and social development;

agrees

1.14
the
Member States should be able to rely on appropriate resources
for the implementation of their flag State obligations;

the maritime administrations of

that

concurs with the Directives provision for the develop-
1.15
ment of a database providing essential
information on ships
flying the flag of a Member State, as well as on ships which
have left the register of a Member State;

1.16
agrees with the IMO proposed Member State Audit
Scheme, however, requests for this audit scheme to be made
compulsory, and be part of a quality certification scheme in
accordance with ISO or equivalent standards as specified by the
EC;

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1.17
expresses concern at the criminalisation and vilifica-
tion of ship masters. While there are occasions where criminal
culpability may be evident, this is generally incorrect,
inap-
propriate, and very damaging to a profession who is doing a
rather difficult, stressful, and sometimes dangerous job very
successfully;

1.18
identifies concern about the possible curtailment of
‘right of innocent passage’ and ‘freedom of navigation’ of ships
passing through the waters of European States without calling
at one of their ports. These rights ought to be respected as far
as possible in the interests of safety. It should be made clear to

the shipping industry that passing vessels have the obligation
to navigate correctly within VTS schemes and follow reporting
procedures;

1.19
is concerned about the possible additional administra-
tive burden on senior officers if the ship has to report that it is
due for inspections as well as providing a certificate of insur-
ance. IMO's proposal to reduce the certificate inspections by
streamlining the process with online electronic certification
processes should be expanded to include insurance and be
made compulsory. Comment 1.18 also applies to the proposed
Directive on Port State Control.

RECOMMENDATIONS

Recommendation 1.1

Article 1

Text proposed by the Commission

CoR Amendment

(c) to provide a mechanism for harmonised interpreta-
tions of the measures laid down in the IMO Conven-
tions which have been left to the discretion of the
Contracting Parties to those Conventions.

(c) to provide a mechanism ensure for harmonised inter-
pretations of
the measures laid down in the IMO
Conventions, which have been left to the discretion of
the Contracting Parties to those Conventions by using
the interpretation of IMO for said Conventions.

R e a son

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

Text proposed by the Commission

CoR Amendment

(a) ‘IMO Conventions’ means the following Conventions,
together with the Protocols and amendments thereto
and related codes of mandatory status adopted in the
framework of the International Maritime Organisation
(IMO), in their up-to-date version:

(i) the 1974 International Convention for the Safety

of Life at Sea (SOLAS 74);

(ii) the International Convention on Load Lines,

1966 (LL 66);

(iii) the

International Convention

on

Tonnage

Measurement of Ships, 1969 (Tonnage 69);
(iv) the International Convention for the Prevention

of Pollution from Ships;

(v) the International Convention on Standards of
Training, Certification and Watchkeeping for
Seafarers (STCW 1978);

(vi) the Convention on International Regulations for
Preventing Collisions at Sea, 1972 (COLREG 72);

(a) ‘IMO Conventions’ means the following Conventions,
together with the Protocols and amendments thereto
and related codes of mandatory status adopted in the
framework of the International Maritime Organisation
(IMO), in their up-to-date version:
(i)

(ii)

(iv)

(iii)

International Convention on Tonnage

the 1974 International Convention for the Safety
of Life at Sea (SOLAS 74);
the International Convention on Load Lines,
1966 (LL 66);
the
Measurement of Ships, 1969 (Tonnage 69);
the International Convention for the Prevention
of Pollution from Ships;
the International Convention on Standards of
Training, Certification and Watchkeeping for
Seafarers (STCW 1978);
the Convention on International Regulations for
Preventing Collisions at Sea, 1972 (COLREG 72);
vii) Code of Safe Practice for Ships Carrying Timber

(vi)

(v)

Deck Cargoes and

(viii) Code of Safe Practice for Solid Bulk Cargoes.

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R e a son

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:

— Timber deck cargo is liable to shifting in heavy weather,

— During winter time, in high latitudes, timber deck cargo is liable to icing.

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

Text proposed by the Commission

CoR Amendment

2. When registering a ship in its register for the first
time the Member State concerned shall endeavour to
ensure that the ship in question complies with the applic-
able international rules and regulations. It shall liaise with
the previous flag State, if necessary.

2. When registering a ship in its register for the first
time the Member State concerned shall endeavour to
require that the ship in question complies fully with the
applicable international rules and regulations as a pre-
condition for registering the vessel by the Member State. It
shall liaise with the previous flag State, if necessary.

R e a son

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

believes that reinforcing and improving the effectiveness of port state control would be beneficial

2.1
to the community;

agrees that the reinforcement of ship inspections will have a direct environmental impact and posi-

2.2
tive economic and social repercussions including fairer competition conditions for maritime transport;

2.3
expresses concern at the use of pilots in strengthening port state control through reporting of defi-
ciencies and by supplementing port- and flag State inspections. Pilots are skilled in navigation and in
conning a vessel. They are not trained as port- or flag State inspectors;

2.4
draws attention to the fact that the ship's age should not be taken as sole criteria for the need for
expanded inspections. The management of the maintenance of the vessel, the cargoes it carried, and the
sea areas it transited during its voyages, all affect the condition of the vessel. A relatively new, but badly
built vessel suffering substandard or little maintenance and careless operation due to inadequate manage-
ment and a less able, under qualified, but cheap crew, being over-stressed during loading, discharging, and
ballasting operations and subjected to generally bad weather during its passages will be in a worse condi-
tion and presents a considerably larger risk for accidents and pollution than an older vessel that has been
well built, well maintained, manned, and operated according to best practice;

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2.5
calls for an inspection rate of 100 % of the vessels calling at EU ports in anyone year. However, it
suggests that each ship will generally be inspected only once during anyone year, unless circumstances
warrant more frequent inspections. The results of inspections will immediately be made available to EU
port- and flag States upon completion of said inspection(s);

2.6

totally agrees with the intentions to tightening up provisions concerning the human element.

RECOMMENDATIONS

Recommendation 2.1

Article 5

Text proposed by the Commission

CoR Amendment

3. 1.
As long as measures envisaged in paragraph 2 are
not in force, the total number of inspections of the ships
referred to in paragraph (2) and Article 7 to be carried out
annually by the competent authority of each Member State
shall correspond to at least 25% of the average annual
number of individual ships which entered its ports

3. 1.
As long as measures envisaged in paragraph 2 are
not in force, the total number of inspections of the ships
referred to in paragraph (2) andArticle 7 to be carried out
annually by the competent authority of each Member State
shall correspond to at least 25% 100% of the average
annual number of individual ships which entered its ports

R e a son

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

Recommendation 2.2

Article 7

Text proposed by the Commission

CoR Amendment

2. When a ship has been authorised to leave a port on
condition that the deficiencies are rectified at the next
port, the inspection at the next port shall be limited to
verifying whether these deficiencies have been rectified.

2. When a ship has been authorised to leave a port on
condition that the deficiencies are rectified at the next
port, the inspection at the next port shall be limited to
verifying whether these deficiencies have been rectified No
ship should be authorised to defer rectification of deficien-
cies relating to seaworthiness and cargo worthiness and
sail to the next port on the promise that deficiencies will
be corrected there. These deficiencies have to be corrected
before sailing to the next port will be allowed by port —
or flag State.

R e a son

Any vessel
worthiness. Existing deficiencies may interfere with complying with these obligations.

leaving port has to routinely comply with the condition of seaworthiness including cargo

Recommendation 2.3

Article 12

Text proposed by the Commission

CoR Amendment

The identity of the person lodging the complaint shall not
be revealed to the master or the shipowner of the ship
concerned.

The identity of the person lodging the complaint shall not
be revealed to the master or the shipowner, or the ship
manager of the ship concerned.

R e a son

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.

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Recommendation 2.4

Article 20

Text proposed by the Commission

CoR Amendment

The Commission shall establish and publish every year a
black-list showing the performance of ship operators and
companies in accordance with the procedures and criteria
laid down in Annex XV.

The Commission shall establish and publish every year a
black-list showing the performance of shipowners, ship
managers, ship operators, charterers, ships, terminal opera-
tors, and companies in accordance with the procedures
and criteria laid down in Annex XV.

R e a son

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 perfor-
mance, 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

Text proposed by the Commission

CoR Amendment

3. BULK CARRIERS
— possible corrosion of deck machinery mountings,
— possible deformation and/or corrosion of hatch covers,
— possible cracks or local corrosion in transverse bulk-

3. BULK CARRIERS
— possible corrosion of deck machinery mountings,
— possible deformation and/or corrosion of hatch covers,
— possible cracks or local corrosion in transverse bulk-

heads,

— access to cargo holds,

R e a son

heads,

— access to cargo holds,
— ballast tanks: at least one of the ballast tanks within the
cargo area is to be examined from the tank manhole/
deck access in first instance and entered if the inspector
establishes clear grounds for further inspection,

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

applauds the introduction of a ‘prevention’ component permitting the operational management of

3.1
maritime risk at Community level as part of the EU's maritime safety policy;

3.2
recommends the introduction of AIS systems on all fishing vessels, inshore as well as off-shore,
and not just on those above 15 m length. It is the smaller ones that are most at risk as they are difficult to
identify visually as well as by radar if they are built from timber or GRP;

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3.3
is in total agreement with catering for the need to improve the operational procedures designed to
respond effectively to emergency situations in which ships may find themselves and of the importance of
issues concerning guarantees for any economic damage related to the accommodation of ships in distress.

RECOMMENDATIONS

Recommendation 3.1 Am. 5

Article 1

Text proposed by the Commission

CoR Amendment

Article 1 paragraph 8:
Article 20 shall be replaced by the following:
‘Article 20 — Accommodation of ships in distress in
places of refuge’

Article 1 paragraph 8:
Article 20 shall be replaced by the following:
‘Article 20 — Accommodation of ships in distress in
places of refuge’

(1)
Member States shall ensure that, subject to the
results of the assessment of the situation carried out on
the basis of the plan referred to in Article 20a, ships in
distress are admitted to a place of refuge which will make
it possible to limit the threat posed by their situation.
(2)
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 compe-
tent authority designated by the Member State.
(3)
The authorities referred to in paragraph 2 shall
meet regularly to exchange their expertise and improve
the measures taken pursuant to this Article. They may
meet at any time, on account of specific circumstances, at
the initiative of one of them or of the Commission

in particular,

(1)
to the
Member States shall ensure that, subject
results of the assessment of the situation carried out on the
basis of the plan referred to in Article 20a, ships in distress
are admitted to a place of refuge which will make it
possible to limit the threat posed by their situation.
(2)
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 compe-
tent authority designated by the Member State.
(2a)
The authorities referred to in paragraph 2 shall
take advice of all relevant players related to the salvage
operation and shall consult,
(port)
authorities before deciding to accommodate a ship in
distress in a place of refuge.
(2b)
The authorities referred to in paragraph 2 shall be
responsible for compensating local (port) authorities for
any costs and damage resulting from the decision referred
to in paragraph 2 if such costs and damage cannot be
promptly recovered from the owner or operator of a
vessel within the meaning of Article X of Directive XX/
XXXX/EC [on civil
liability and the financial guarantees
given by shipowners].
The authorities referred to in paragraph 2 shall
(3)
meet regularly to exchange their expertise and improve the
measures taken pursuant to this Article. They may meet at
any time, on account of specific circumstances, at the
initiative of one of them or of the Commission.

local

R e a son

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 Commis-
sion 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.

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

Recommendation 3.2 Am.6

Article 1

Text proposed by the Commission

CoR Amendment

Article 1 paragraph 9:
The following Article 20a shall be inserted:
‘Article 20a — Plans for the accommodation of ships in
distress

Article 1 paragraph 9:
The following Article 20a shall be inserted:
‘Article 20a — Plans for the accommodation of ships in
distress

(1)
Member States shall draw up plans for responding
to threats presented by ships in distress in the waters
under their jurisdiction.
The plans referred to in paragraph 1 shall be
(2)
prepared after consultation of
the parties concerned,
taking into account the relevant IMO guidelines referred to
in Article 3(a), and shall contain at least the following:
a) the identity of the authority or authorities in charge of

(1
) Member States shall draw up plans for responding
to threats presented by ships in distress in the waters
under their jurisdiction.
The plans referred to in paragraph 1 shall be
(2)
prepared after consultation of
the parties concerned,
taking into account the relevant IMO guidelines referred to
in Article 3(a), and shall contain at least the following:
a) the identity of the authority or authorities in charge of

receiving and handling alerts;

receiving and handling alerts;

b) the identity of the authority responsible for assessing
the situation, selecting a suitable place of refuge and
taking a decision on accommodating a ship in distress
in the place of refuge selected;

b) the identity of the authority responsible for assessing
the situation, selecting a suitable place of refuge and
taking a decision on accommodating a ship in distress
in the place of refuge selected;

c) the inventory of potential places of refuge, recapitu-
lating those elements which are conducive to speedy
assessment and decision-making, including descriptions
of the environmental and social factors and the natural
conditions of the potential places considered;

c) the inventory of potential places of refuge, recapitu-
lating those elements which are conducive to speedy
assessment and decision-making, including descriptions
of the environmental and social factors and the natural
conditions of the potential places considered;

d) the assessment procedures for selecting the place of
refuge on the basis of places listed on the inventory;
e) the resources and installations suitable for assistance,

d) the assessment procedures for selecting the place of
refuge on the basis of places listed on the inventory;
e) the resources and installations suitable for assistance,

rescue and combating pollution;

rescue and combating pollution;

f) any international coordination and decision-making

f) any international coordination and decision-making

mechanisms that may be applicable;

mechanisms that may be applicable;

g) the financial guarantee and liability procedures in place

g) the financial guarantee and liability procedures in place

for ships accommodated in a place of refuge.

for ships accommodated in a place of refuge;

Member States shall publish the name of

(3)
the
competent authority referred to in Article 20(2) and the
list of suitable contact points for receiving and handling
alerts. They shall communicate to the Commission the
inventory of potential places of refuge, and furthermore
communicate the relevant information on the plans and
places of refuge to the neighbouring Member States.
In implementing the procedures provided for in the plans
for accommodating ships in distress, they shall ensure that
all relevant information on the plans and places of refuge
is made available to the parties involved in the operations,
including assistance and towing companies.’

h) the compensation procedure for potential costs and
damage occurring as result of ships accommodated in a
place of refuge.

Member States shall publish the name of

(3)
the
competent authority referred to in Article 20(2) and the
list of suitable contact points for receiving and handling
alerts. They shall communicate to the Commission the
inventory of potential places of refuge, and furthermore
communicate the relevant information on the plans and
places of refuge to the neighbouring Member States.
In implementing the procedures provided for in the plans
for accommodating ships in distress, they shall ensure that
all relevant information on the plans and places of refuge
is made available to the parties involved in the operations,
including assistance and towing companies.’

R e a son

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.

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Local port authorities and communities may be exposed to pollution or other dangers, such as an explo-
sion, 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.

liability and financial securities of shipowners, will bring substantial
The Directive proposal on civil
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 authori-
ties 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

Text proposed by the Commission

CoR Amendment

Article 1, paragraph 10 Commission proposal:
The following Article 20b shall be inserted:
‘Article 20b — Financial guarantees

Article 1, paragraph 10
The following Article 20b shall be inserted:
‘Article 20b — Financial guarantees

refuge,

Prior to accommodating a ship in distress in a place
(1)
of
the ship's
the Member State may request
operator, agent or master to present an insurance certifi-
cate or a financial guarantee, within the meaning of
Article X of Directive XX/XXXX/EC [on civil liability and
the financial guarantees given by shipowners], covering his
liability for damage caused by the ship.
(2)
The absence of an insurance certificate or financial
guarantee does not exonerate the Member States from the
prior assessment and decision referred to in Article 20.’

refuge,

Prior to accommodating a ship in distress in a place
(1)
of
the ship's
the Member State may request
operator, agent or master to present an insurance certifi-
cate or a financial guarantee, within the meaning of Article
X of Directive XX/XXXX/EC [on civil
liability and the
financial guarantees given by shipowners], covering his
liability for damage caused by the ship.
(2)
The absence of an insurance certificate or financial
guarantee does not exonerate the Member States from the
prior assessment and decision referred to in Article 20.
The authorities referred to in Article 20(2) shall be
(3)
responsible for any legal action against the ship's operator,
agent or master to recover costs and damage caused by the
ship.’

R e a son

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.

(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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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

4.1
agrees with the general objective of the Commission's proposal to improve maritime safety by
establishing clear Community-wide guidelines on the technical investigations to be carried out following
maritime casualties and incidents and the importance of such investigations;

4.2
supports the provision that accident investigations should focus on risk prevention and be based
on IMO's principles and recommendations, and be targeted at how legislation, the operation of vessels,
preparedness for, and conducting emergency responses can be improved;

emphasises the need for extensive use of the relevant models and methods developed in the frame-

4.3
work of the IMO to investigate maritime accidents.

RECOMMENDATIONS

Recommendation 4.1

Article 2

Text proposed by the Commission

CoR Amendment

(d) fishing vessels with a length of less than 24 metres;

(d) fishing vessels with a length of less than 24 metres;

R e a son

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 organiza-

tions and for the relevant activities of maritime administrations

agrees with the need for effective monitoring and an audit of classification societies, their subsidi-
5.1
aries and participating undertakings and to introduce penalties for failure to comply with their obligations
and to establish, at international and Community level, exhaustive technical inspection mechanisms which
provide reliable information about the real state of ships.

concurs with the suggestion that the recognised organisations should establish a joint body for
5.2
quality system assessment and certification. The joint body must be independent, have all the necessary
resources to enable work to be carried out in-depth and on a continuous basis, and be in a position to
propose both individual and collective measures in order to improve the quality of the recognised organisa-
tions' work;

5.3
agrees that cooperation between the recognised organisations should be extended to ensure that
their technical regulations are compatible and that these regulations and international conventions are
interpreted and applied in a uniform manner to provide a common basis for evaluation and instruments
which will enable corrective measures to be taken as required to achieve a uniform level of safety in the
Community, technical cooperation between Classification Societies, compatibility between regulations, the
application of IMO's interpretation of international conventions throughout the EU, and thus lead to
genuine mutual recognition of class certificates and marine equipment;

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requests that the last line in item (31) ‘and inform the flag State when necessary’ be changed to

5.4
‘and make this information immediately available to the flag State’.

RECOMMENDATIONS

Recommendation 5.1

Article 12

Text proposed by the Commission

CoR Amendment

2. Without prejudice to paragraph 1, where an organi-
sation fails to implement
the preventive and remedial
action required by the Commission, or incurs unjustified
the Commission may impose periodic penalty
delays,
payments on the said organisation until
the required
action is fully implemented.

2. Without prejudice to paragraph 1, where an organi-
sation fails to implement
the preventive and remedial
action required by the Commission, or incurs unjustified
delays, the Commission may request the European Court
of Justice to impose periodic penalty payments on the said
organisation until the required action is fully implemented.

R e a son

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

Text proposed by the Commission

CoR Amendment

The recognised organisations shall establish and implement
appropriate common requirements concerning cases of
transfer of class where special precautions are necessary.
Those cases shall as a minimum include the transfer of
class of ships of fifteen years of age or over and the
transfer from a non-recognised organisation to a recog-
nised organisation.

The recognised organisations shall establish and implement
appropriate common requirements concerning cases of
transfer of class where special precautions are necessary.
Those cases shall as a minimum include the transfer of
class of ships of ten years of age or over and the transfer
from a non-recognised organisation to a recognised orga-
nisation or from a recognised organisation to a non-recog-
nised organisation.

R e a son

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

agrees with the initiative to incorporate the Athens Convention into Community law for compul-

6.1
sory insurance rather than to leaving it to the discretion of the shipowner through P&I clubs;

6.2 welcomes the initiative to extend the application of the provisions of the Athens Convention to
domestic traffic but feels that including all inland waterways may not be appropriate and asks the Commis-
sion to clarify the definition of inland waterway and advices it less extensive measures would suffice here;

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6.3
expresses agreement that for shipping incidents, the 2002 Protocol to the Athens Convention
introduces a strict liability regime. That strict liability is aimed at improving the position of claimants, that
the liability is not dependent on an act of fault or negligence by the carrier and that therefore there is no
need for the claimant to prove the liability of the carrier;

notes the reservation expressed by shipowners and P&I clubs regarding Article 3 (1) of the Athens

6.4
Convention on the liability for incidents caused by terrorism;

6.5
stresses the need to find internationally acceptable proposals as the only solution in the impasse
reached owing to the refusal of the insurance industry to accept the new liability limits and related insur-
ance requirements provided for in the Commission's proposal for a regulation;

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

agrees with the call of the European Parliament for ‘a comprehensive and cohesive European mari-
7.1
time policy, which would have as its objective the creation of a European maritime safety area based on
the introduction of a system of liability covering the entire maritime transport chain’

nevertheless considers that any arrangement regarding the issue of liability and compensation for

7.2
maritime pollution must be international;

supports possible amendments to the applicable rules in order to render parties other than ship-
7.3
owners liable, as well as the introduction of unlimited liability of shipowners in the event of severe or
deliberate infringement of their safety and anti-pollution obligations;

7.4
underlines the need for any amendment of the Civil Liability Convention to maintain the balance
of participation between each side (shipowners and cargo operators) based on the arrangements promoted
through the voluntary proposals/undertakings of ship operators;

7.5

requests that ‘parties other than shipowners’ is to include ship managers and charterers;

expresses concern that the compatibility with international law in the application of the Directive

7.6
should be recognised;

suggests that ship masters should not be included in the definition of ‘parties other than ship-

7.7
owners’ unless they behaved grossly negligent in the execution of their duties;

expresses concern about the disparity between this Directive and the Hague/Hague–Visby Rules
7.8
and the Hamburg Rules, governing shipowners' liability under Bills of Lading, Sea Waybills and Charter
parties as used in international maritime transport, which may give rise to confusion as to which liability
regime would apply as it is felt that the wording of this Directive does not make it totally clear whether it
applies to pollution damage only, or whether it includes other damage to third parties;

agrees with the Commission that establishing an obligatory insurance system will help tackle the

7.9
problem of substandard ships;

7.10
damage to places of refuge.

requests that the wording of the insurance policy the ship is to carry, clearly states that it covers

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RECOMMENDATIONS

Recommendation 7.1

Article 1

Text proposed by the Commission

CoR Amendment

This Directive lays down rules applicable to certain aspects
of the obligations on operators in the maritime transport
chain as regards civil
liability and introduces financial
protection adapted for seafarers in case of abandonment.

This Directive lays down rules applicable to certain aspects
of the obligations on operators and on users of ships in
the maritime transport chain as regards civil liability and
introduces financial protection adapted for seafarers in
case of abandonment.

R e a son

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:

— Ensure that charterers have an obligation not to use substandard vessels.

— The commercial advantage gained by a charterer of using a substandard vessel, at a lower freight rate,
is lost due to the increased costs of the financial guarantee as it involves the added risk of using a
substandard vessel.

— It becomes financially unattractive to charterers to use substandard vessels and fewer cargoes will be

available to them.

— The incentive to operate, charter, and use substandard vessels is therefore diminished, and the owners
of such ships will be forced to either bring the ship, its manning and operation into full compliance
with international regulations, or to scrap them.

Recommendation 7.2

Article 2

Text proposed by the Commission

CoR Amendment

A definition of the word ‘operator’ as used in Article

(7)
1 of this Directive should be included.

R e a son

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