Opinion of the European Economic and Social Committee on the — Proposal for a Directive of the European Parliament and of the Council on compliance with flag State requirements — COM(2005) 586 final — 2005/0236 (COD) — Proposal for a Directive of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations — COM(2005) 587 final — 2005/0237 (COD) — Proposal for a Directive of the European Parliament and of the Council on port State control — COM(2005) 588 final — 2005/0238 (COD) — Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system — COM(2005) 589 final — 2005/0239 (COD) — Proposal for a Directive of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC — COM(2005) 590 final — 2005/0240 (COD) — Proposal for a Regulation of the European Parliament and of the Council on the liability of carriers of passengers by sea and inland waterway in the event of accidents — COM(2005) 592 final — 2005/0241 (COD) — Proposal for a Directive of the European Parliament and the Council on the civil liability and financial guarantees of shipowners — COM(2005) 593 final — 2005/0242 (COD)
Date: 2006-12-23
Institutions: European Economic and Social Committee
Subjects: civil liability, information system, international standard, maritime safety, maritime transport, polluter pays principle, pollution from ships, prevention of pollution, transport accident, transport safety

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Official Journal of the European Union

C 318/195

Opinion of the European Economic and Social Committee on the

Proposal for a Directive of the European Parliament and of the Council on compliance with flag
State requirements

COM(2005) 586 final — 2005/0236 (COD)

Proposal for a Directive of the European Parliament and of the Council on common rules and stan-
dards for ship inspection and survey organisations and for the relevant activities of maritime admin-
istrations

COM(2005) 587 final — 2005/0237 (COD)

Proposal for a Directive of the European Parliament and of the Council on port State control

COM(2005) 588 final — 2005/0238 (COD)

Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/
59/EC establishing a Community vessel traffic monitoring and information system

COM(2005) 589 final — 2005/0239 (COD)

Proposal for a Directive of the European Parliament and of the Council establishing the fundamental
principles governing the investigation of accidents in the maritime transport sector and amending
Directives 1999/35/EC and 2002/59/EC

COM(2005) 590 final — 2005/0240 (COD)

Proposal for a Regulation of the European Parliament and of the Council on the liability of carriers
of passengers by sea and inland waterway in the event of accidents

COM(2005) 592 final — 2005/0241 (COD)

Proposal for a Directive of the European Parliament and the Council on the civil liability and finan-
cial guarantees of shipowners

COM(2005) 593 final — 2005/0242 (COD)

(2006/C 318/32)

On 25 January (TEN/236), 8 February (TEN/235), 14 February (TEN/234 and 239), 28 February (TEN/237)
and 15 March 2006 (TEN/233 and 238), the Council decided to consult the European Economic and Social
Committee, under Articles 71(1) and 80(2) of the Treaty establishing the European Community, on the
abovementioned proposals.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 18 July 2006. The rapporteur was
Mr Retureau; the co-rapporteur was Dr Bredima-Savopoulou.

At its 429th plenary session, held on 13 and 14 September 2006 (meeting of 13 September), the European
Economic and Social Committee adopted the following opinion by 198 votes to 2 with 5 abstentions.

1. Conclusions and recommendations

(International Maritime Organisation) Athens Convention and
civil liability. In particular, the proposal on civil liability merits
further examination.

1.1
Overall, the EESC welcomes the Third Maritime Safety
Package, which is a further constructive and proactive step
towards improving maritime safety by preventing maritime acci-
dents and pollution and better controlling their effects. The
Committee broadly supports
flag state performance
proposal, the port state control proposal, the oversight through
audits of the classification societies, the accident investigations
and the vessel traffic monitoring (VTM, ships in distress and
areas of refuge) proposal. They broadly reflect its positions in its
opinions on the Erika I and II packages. These proposals
improve various aspects of the transport chain and demonstrate
the EU's commitment to quality shipping.

the

1.2
regarding

The Committee has some concerns about the proposals
IMO
liability

passenger

based

ship

the

on

1.3
The EESC considers the recognition of the role of the
IMO to be a positive element of the package. This is entirely in
line with its past opinions (since 1993) on maritime safety and
pollution prevention in which the need for an international legal
regime on maritime safety and pollution prevention has been
acknowledged.

1.4
The EESC recommends that the Commission take all
necessary steps to ensure that the existing IMO Conventions are
ratified promptly by all EU Member States, particularly the

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1996 Convention on Limitation of Liability for Marine Claims
(LLMC). This will have a direct added value for maritime safety,
the global environment, liability and compensation for pollution
damage worldwide.

(2002) consisting of six legal

Two legislative packages were adopted: Erika I (1) (2001) and
Erika II (2)
instruments (three
Directives and three Regulations). On 23 November 2005 the
Commission published its Third Maritime Safety Package, which
is intended to strengthen European maritime safety rules and to
improve the effectiveness of existing measures.

1.5
The EESC suggests that the Commission should exclude
inland navigation from its proposal on passenger liability in
the
inland waterways and issue a specific proposal under
NAIADES programme.

3. The Commission's proposals

that

1.6
The EESC reiterates its earlier calls in response to the
Erika I and II packages for another maritime safety package
dealing more specifically with the human element and deplores
the human element has not been sufficiently
the fact
addressed at EU level in the Third Maritime Safety Package. It
proposes that the maritime labour code convention adopted by
the International Labour Conference (Maritime Session) of the
ILO in 2006, which Member States should ratify with a view to
harmonising basic European and international rules, should
serve as the basis for framing appropriate provisions. The
‘recommendations’ section (soft law) of the code should also be
duly taken on board in order to draw up better European stan-
dards.

1.7
The EESC notes that better lawmaking goes hand in
hand with better enforcement. Hence, it draws attention to the
need for better implementation measures. It also urges all rele-
vant stakeholders to be vigilant in the enforcement of the new
maritime safety package.

1.8
The EESC draws attention to the need to increase
resources allotted to port state control by the Member States; in
addition, it calls for an increase in the number of port inspectors
to ensure the effective implementation of various aspects of the
maritime safety packages. It invites the Commission, in colla-
boration with Member States, to provide the necessary means to
attract and recruit suitably skilled new entrants to the inspectors'
profession.

2. Introduction

2.1
In the aftermath of the Erika (1999) and Prestige (2002)
accidents off the coasts of France and Spain, which highlighted
the vulnerability of Europe's coastlines, the EU acted immedi-
ately in order to set up a defensive mechanism to protect its
coasts against the risks of maritime accidents and pollution and
improve the safety conditions of the vessels calling at its ports.

Following the enlargement of the EU, the European fleet
3.1
now accounts for 25 % of
the world fleet. The European
Commission's aim is to make it a model fleet, providing a Euro-
pean maritime service which is safe, competitive and environ-
mentally friendly.

The Third Maritime Safety Package will make it possible
3.2
to better guarantee European maritime transport safety.
It
proposes a more pro-active policy aimed at restoring conditions
for healthy and sustainable competition for operators who
comply with international rules. The package contains seven
proposals that take account of the experience acquired in imple-
menting the Community legislation on maritime safety and
pollution prevention and are structured around two major
courses of action:

— improved accident and pollution prevention, and

— dealing with the aftermath of accidents.

3.3 Proposal for a Directive of the European Parliament and of the

Council on compliance with flag State requirements

3.3.1
The objective of the proposal is to ensure that Member
States effectively monitor compliance with the international
standards recommended by the International Maritime Organi-
sation (IMO) by ships flying their flags and having for this
purpose a maritime administration operating in accordance
with high-quality criteria. This proposal seeks to ensure that
Member States meet their international obligations in an effec-
tive and coordinated manner.

(1) Directive of the European Parliament and of the Council amending
Council Directive 95/21/EC concerning the enforcement, in respect
of shipping using Community ports and sailing in the waters under
the jurisdiction of the Member States, of international standards for
ship safety, pollution prevention and shipboard living and working
conditions (port state control).
Directive of the European Parliament and of the Council amending
Council Directive 94/57/EC on common rules and standards for ship
inspection and survey organisations and for the relevant activities of
maritime administrations.
Regulation of the European Parliament and of the Council on the accel-
erated phasing-in of double hull or equivalent design requirements for
single hull oil tankers (EESC Opinion: OJ C 14 of 16.1.2001).

(2) Directive of the European Parliament and of the Council establishing
a Community monitoring, control and information system for mari-
time traffic.
Regulation of the European Parliament and of the Council on the
establishment of a fund for
the compensation of oil pollution
damage in European waters and related measures.
Regulation of the European Parliament and of the Council establishing
a European Maritime Safety Agency. (EESC Opinion: OJ C 221 of
7.8.2001).

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3.4 Proposal for a Directive of the European Parliament and of the
Council on common rules and standards for ship inspection and
survey organisations and for the relevant activities of maritime
administrations

movements of ships and their cargoes. Ships will be notified
about icing dangers in certain maritime areas.

to reform the system of

3.4.1
The proposal is intended to improve the quality of the
work of recognised classification societies (which inspect and
sanctions against
certify ships),
defaulting societies by introducing more gradual and propor-
tionate financial penalties and to increase the powers of the
Commission so as to enable inspectors to access ships of any
flag. The quality of the work carried out by classification socie-
should be improved by establishing a quality-control
ties
system.

3.5 Proposal for a Directive of the European Parliament and of the

Council on port State control

3.5.1
This proposal introduces the principle of a far-reaching
reform aimed at replacing the current system (Paris Memor-
andum of Understanding — MOU) under which each Member
State must inspect at least 25 % of ships entering its ports with
a Community target of inspecting 100 % of ships, bearing in
mind the need to reduce the burden of carrying out inspections
on high-quality ships.

Other measures will be taken to improve the effective-
3.5.2
ness and quality of checks on ships in European ports (including
the working conditions of
the crews). The new inspection
regime will focus on risky ships. Stricter actions will be taken
against substandard ships by strengthening the arrangements for
banning them in Community waters.

3.6 Proposal for a Directive of the European Parliament and of the
Council amending Directive 2002/59/EC establishing a Com-
munity vessel traffic monitoring and information system

3.6.1
The proposed objectives include improving the legal
framework on places of refuge for ships in distress. The identifi-
cation of all potential places of refuge should be speeded up,
which would improve the efficiency of decision-making in the
event of maritime accidents. The Commission is also proposing
to equip all fishing vessels with automatic identification systems
(AIS) in order to reduce the risk of collisions with large ships.

data-exchange
the
3.6.2
network to the whole of the EU will enable monitoring of

extension of

SafeSeaNet

The

3.7 Proposal for a Directive of the European Parliament and of the
Council establishing the fundamental principles governing the
investigation of accidents in the maritime transport sector and
amending Directives 1999/35/EC and 2002/59/EC

The quality of maritime safety standards depends on
3.7.1
the ability to analyse the causes of accidents and learn from
them. The purpose of this proposal is to establish a harmonised
European framework for carrying out investigations following
accidents. The investigations will be carried out by independent
specialist bodies with appropriate authorisations for the task.
The proposal provides
and
encourages cooperation for technical investigations of maritime
accidents.

clear Community guidelines

3.8 Proposal for a Regulation of the European Parliament and of the
Council on the liability of carriers of passengers by sea and inland
waterway in the event of accidents

The purpose of the proposal

3.8.1
is to incorporate into
Community law the provisions of the 2002 Athens Convention
(applicable only to international journeys and not yet in force)
and to extend the protection introduced by this Convention to
cover all passengers travelling on ships in the EU in domestic
maritime traffic and inland waterway traffic.

3.9 Proposal for a Directive of the European Parliament and of the
Council on the civil liability and financial securities of shipowners

3.9.1
The aim is to make shipowners act more responsibly,
and to oblige them to take out an insurance policy or other
financial security for third-party damage and which also covers
the costs of repatriating seafarers in the event of abandonment.

3.9.2
As a first step, Member States will have to ratify all
relevant IMO Conventions, including the 1996 LLMC. The text
of the 1996 LLMC will be incorporated into Community law to
ensure full and uniform application of this convention all over
the EU. As a second step, the Commission will seek a mandate
for negotiation within IMO to review the 1996 LLMC Protocol
with the aim of reviewing the level at which shipowners lose
their right to limit their liability. Ships flying the flag of a state
that is not party to the 1996 LLMC will be subject to a more
severe liability regime in the event of gross negligence.

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3.9.3 Member States have to ensure that owners of ships
sailing in Community waters, irrespective of flag, have a finan-
cial security for civil liability up to double the ceiling laid down
in the 1996 LLMC. Shipowners must also have a financial
security for abandonment of seafarers. Financial security must
be evidenced on the basis of certificates, which must be carried
onboard the ship.

But as these tasks are currently intertwined, the EESC
4.2.2
believes that a greater distinction should be made between statu-
tory and classification tasks, for example by assigning them to
different inspectors in the same recognised organisation or to
two different organisations. There would seem to be a need for
an interim period of ongoing promotion of best practices
through negotiations between the Member States and the socie-
ties concerned, and between the classification societies, in order
to draw up a compendium of good practice for the purpose of
avoiding conflicts of interest.

4. General comments

4.1 Proposal for a Directive of the European Parliament and of the

Council on compliance with flag State requirements

4.1.1
The EESC fully supports this proposal as it means that
Member States will have to fulfil their responsibilities properly
and comply with IMO instruments, including the IMO flag state
implementation code and the IMO flag state Audit Scheme.

4.1.2
The EESC wonders whether Article 9 ‘Flag State Investi-
gation’ is necessary as it deals with accident investigation, which
is amply covered by the fifth proposed instrument in the Third
Maritime Safety Package. Nevertheless,
it would reinforce the
need for investigations and strengthen the requirement and obli-
gation for Member States to provide adequate resources to this
end.

The Committee

4.1.3
that Article 10 ‘Safe
recognises
manning’ seeks to ensure that ships flying the flag of a Member
State are adequately manned, in accordance with IMO Assembly
Resolution A.890 (21) on Principles of safe manning. However,
the EESC is convinced that a level playing field between flag
States is essential and that the proposal that the Commission
produce a report as referred to in Article 15 ‘Cooperation agree-
ments’ should be implemented as soon as possible.

Article 19(3) requires Member States to cooperate with
4.2.3
the classification societies in the development of their rules and/
or regulations. Notwithstanding the provisions of Articles 16
and 17, the EESC believes that a reciprocal obligation should be
placed upon the classification societies.

The EESC welcomes the provisions of Article 20
4.2.4
concerning the requirement
recognised organisations to
for
consult with each other and to cooperate with each other with a
view to achieving equivalence and consistency in the application
of international conventions.

4.3 Proposal for a Directive of the European Parliament and of the

Council on port State control

4.3.1
The EESC agrees with the recasting of the Directive in
order to improve clarity and to reinforce and improve the effec-
tiveness of port State control. It notes that over the last six years
the number of ships covered by the mandatory detailed inspec-
tions has risen from 700 to 4 000.

4.2 Proposal for a Directive of the European Parliament and of the
Council on common rules and standards for ship inspection and
survey organisations and for the relevant activities of maritime
administrations

4.3.2
The EESC supports the intention to reward quality
ships with fewer inspections, to focus inspection efforts on
high-risk ships and to deter the operation of sub-standard ships
by denying access to EU ports. Since the new system will be
based on the principles incorporated in Annex III, the recasting
of the Directive offers the unique opportunity to introduce and
apply the new system without delay.

4.2.1
Classification societies are increasingly responsible and
accountable to administrations of flag States for the safety of
shipping and the environment to a high degree. Therefore, the
EESC endorses the proposed measures intended to improve the
quality of
their work on behalf of Member States and to
strengthen checks and penalties, introducing a system of incre-
mental sanctions which will be more effective than the current
arrangement.

4.3.3
The EESC notes with satisfaction that the role of pilots
in the early detection of possible defects will be stepped up, but
is concerned that the confusion of commercial functions with
inspection functions will not make the work easy for pilots, nor
for deep-sea pilots who depend on a company providing non-
compulsory pilotage services.

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It also welcomes the inclusion of inspection of the
4.3.4
working conditions onboard, since the human factor often plays
an important role in maritime accidents. Inspection of seamen's
onboard living and working conditions and their qualifications
requires an increase in the number of inspectors with specific
skills in this area; it would be difficult for a single inspector,
often working to very short deadlines, to carry out an in-depth
dual inspection embracing both technical and social aspects.

4.3.5
The Committee further welcomes the requirement of
Article 20 for the Commission to establish each year a black-list
showing the performance of ship operators and companies.

4.4 Proposal for a Directive of the European Parliament and of the
Council amending Directive 2002/59/EC establishing a Com-
munity vessel traffic monitoring and information system

It is gratifying that the EESC's repeated earlier calls for
4.4.1
the establishment of a system for ships in distress have been
finally heard (Article 20). Therefore, the EESC supports the
proposal to strengthen the Directive by reinforcing and harmo-
nising the requirements on ‘places of refuge’ (3). A certificate of
entry in a P & I (protection and indemnity) Club should be suffi-
cient financial guarantee for admission to a place of refuge. In
this connection, absence of a certificate should not be an excuse
to deny admission of a ship to a place of refuge.

4.4.2
The Committee feels that the independent competent
authority responsible for handling accidents and directing ships
in distress towards a place of refuge should concentrate the
necessary powers in its hands, independently of the obligations
to consult the parties concerned, and be able to take decisions
and bear all essential responsibilities, including those relating to
the financial consequences of decisions taken as a matter of
urgency.

4.4.3
The EESC notes that fishing continues to be one of the
most vulnerable sectors of activity and welcomes the compul-
sory fitting of AIS on board fishing vessels. Small and medium-
sized companies, including those in the coastal fisheries sector,
should be allowed to benefit from aid or facilitations in order to
equip themselves (4).

4.4.4
It also supports the provisions enabling coastal states
to take appropriate measures to limit possible dangers to ship-
ping of ice formation in certain maritime areas in the North of
the EU. This is a particularly important issue given the increased
risks arising from the greater volumes of oil carried in the Baltic
Sea area. However, to avoid possible problems with the ice rules
laid down by some classification societies it would be helpful to
have States standardise their own ice rules.

(3) The best practices of the UK SOSREP system are a major source of

inspiration in this field.

(4) The European Fisheries Fund, which was established by the Council on
16 June 2006, introduces the possibility of funding up to 40 % of the
cost of safety equipment; complementary measures at Member State
level could also be considered.

The EESC agrees that the implementation of the infor-
4.4.5
mation exchange system SafeSeaNet will contribute greatly to
enhancing maritime safety in EU waters.

4.5 Proposal for a Directive of the European Parliament and of the
Council establishing the fundamental principles governing the
investigation of accidents in the maritime transport sector and
amending Directives 1999/35/EC and 2002/59/EC

The EESC supports this proposal as it is only through
4.5.1
independent technical
investigations of accidents that appro-
priate action can be taken to reduce the chances of reoccur-
rence. In addition, the Committee supports the establishment of
independent specialist bodies to carry out such investigations as
well as the clear distinction from investigation for punitive
reasons.

4.5.2
allows for the conduct of joint safety investigations.

The EESC welcomes the provision of Article 7 which

4.5.3
The EESC feels that the provision of Article 9 on the
non-disclosure of records for purposes other than the safety
investigation is essential. The provision allowing a judicial
authority to permit disclosure is a source for concern. Conse-
quently, the Committee believes that it would be helpful if those
giving evidence to such technical accident investigations were
granted immunity, even anonymity, from their testimony. As in
the case of the airline industry, the participation in the investiga-
tion process of representatives of the shipping industry and
representatives of organised civil society in the affected areas
would be valuable in order to draw all possible lessons with a
view to better prevention in the future and for the sake of trans-
parency. The Commission also wisely provides for feedback in
order to accumulate experience.

4.6 Proposal for a Regulation of the European Parliament and of the
Council on the liability of carriers of passengers by sea and inland
waterway in the event of accidents

4.6.1
The EESC supports the basic aim of this proposal to
enable all passengers to benefit, at EU level, from the same
protection regime in the event of an accident. The essential
feature of the regime are modernised carrier liability rules, a
mandatory insurance system and a satisfactory compensation
ceiling. These protection rules also apply to all passengers who
have purchased their tickets in Europe, even if
they travel
outside Community waters and even onboard a ship flying a
third-country flag.

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The EESC recalls that under a draft Decision (2003)
4.6.2
Member States were invited to ratify the Athens Protocol before
the end of 2005. Unfortunately, the ratification process was
blocked. The current proposal is a means whereby the provi-
sions of
the Athens Protocol become uniformly applicable
throughout the EU. Incorporating the Athens Protocol into EC
law will not prevent Member States from ratifying the Protocol
in order to make sure that it will ultimately be applied at an
international level.

4.6.3
The EESC notes two important issues that remain to be
resolved regarding the proposed ratification by the Member
States of the IMO and entry into force of the 2002 Athens
Protocol. First, the war/terrorism issue: the EESC draws attention
to the IMO resolution enabling states to enter a reservation in
their ratification in order to issue the requested insurance certifi-
cates with the exclusion of war/terrorism issues. Second, the
limitation amount: the International Group of P & I Clubs has
stated that it is able to cover the highest limits laid down by the
Protocol, provided a solution is found to the problem of
terrorism. Alternative proposals have been placed on the table
for consideration and workable solutions could be achieved at
international and/or European level. The current reform of the
Community solidarity fund (Regulation 2012/2002), which
should come into force in 2007, could provide emergency aid
in the case of natural disasters, including disasters resulting from
acts of terrorism. But this could not be a substitute for a nego-
tiated solution to the issue of
insurance cover for damage
caused by a possible terrorist act, which the Committee believes
is urgently needed.

deviation from the Athens Protocol. Similar provisions have
been introduced in the Regulation on Air Passenger rights refer-
ring to the Montreal Convention.

4.6.8
Regarding inland navigation, the EESC believes that the
Third Maritime Safety Package fails to take into account the
differences between inland waterways (rivers and deltas, canals,
lakes) and maritime transport (inland — to islands, with the
public service of assuming territorial continuity — and interna-
tional). Both the nature and use of these routes are different,
thus justifying a different legal regime (navigational/safety/liabi-
lity rules. mandatory liability and insurance).

4.7 Proposal for a Directive of the European Parliament and of the
Council on the civil liability and financial securities of shipowners

The EESC supports the proposed ratification by the
4.7.1
Member States of
the 1996 LLMC Protocol, which would
double the levels of civil liability of shipowners compared to the
1976 LLMC levels. The 1976 LLMC is an umbrella convention
covering all maritime claims. The EESC, however, takes note of
the proposal
flag) entering EU
waters to carry a financial responsibility certificate for double
the amount laid down in the 1996 LLMC Protocol.

for all ships (irrespective of

The EESC recognises the merits of the aim to apply
4.6.4
identical compensation for passengers on board ships operating
on intra-Community and international routes. However, serious
difficulties might result
in
connection with the provision of certain services.

for some smaller companies or

4.7.2
Under the United Nations Convention on the Law of
the Sea (UNCLOS), coastal states can go beyond the provisions
of the Convention provisions only in respect of third vessels
calling at their ports. P & I Clubs have declared that they are not
willing to provide certificates exceeding the level laid down in
1996 LLMC Protocol.

Regarding domestic passenger

the EESC
4.6.5
proposes a phasing in (transitional) period in the application of
this proposal so as to minimise any adverse impact on short sea
passenger services. Otherwise, the economic viability of services
in local ferry routes would be seriously reduced, to the detri-
ment of the regular servicing of islands.

services,

their dependants,

4.6.6 With regard to advanced payments to accident victims
or
the proposal on
advanced payment in respect of shipping incidents for which
the Athens Protocol provides for a strict liability regime.

the EESC supports

The provisions on disabled people and pre-journey
4.6.7
information should be seen as complementary and not as a

4.7.3
Insurance is preferable to insolvency and insurance
depends on clear liability criteria. A consequence of abandoning
limitation in case of gross negligence will be to reduce the insur-
ance market and increase the number of one-ship companies
utilising the law governing limited liability companies.

in particular,

The EESC nevertheless notes that the perception and
4.7.4
estimation of
the extent of damage and responsibility have
changed a great deal over recent years; very often compensation
paid for damages is perceived as being far less than the amounts
indirect damage suffered. There is
of direct or,
certainly room for improvement in this area. The Committee
proposes that the Commission carry out an economic analysis
of its proposal. Such analysis should determine what would be
the economic effect of abandoning limitation of liability alto-
gether and whether there is a case for increasing the levels of
limitation.

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The EESC recalls its earlier opinions on the Erika I
4.7.4.1
and II packages and reiterates that the basic yardstick should be
the rapid and guaranteed compensation of victims for
the
damage suffered and not an invitation for more litigation and
procrastination of
trials. A ratification of all existing IMO
Conventions should allow for a more adequate civil liability, for
compulsory insurance and direct action for specifically defined
claims, as envisaged in the proposed Directive.

that civil

The EESC believes

4.7.4.2
liability should be
governed by clear and transparent rules. Under maritime law,
‘gross negligence’
is a legal concept commonly applied in
disputes about damage caused to cargo. At international level,
the concept used to exclude strict liability is ‘recklessness with
knowledge’, a solution that
the Committee advocated in its
opinion on Erika II, in relation to oil pollution. The Committee
therefore recommends that the proposal for a Directive include
some objective factors in order to guide the Member States and
their courts as to when the ‘gross negligence’ test is satisfied.
Otherwise there may be a risk of Member States implementing
the Directive in different ways.

4.7.4.3
The EESC maintains that financial security certificates
should be evidenced by a certificate of entry into a P&I Club
rather than by a certificate issued by a EU Member State. A
certificate of entry into a P&I Club will meet the purposes of
the proposed instrument and is readily available from P&I
Clubs.

4.7.5
The EESC feels that the proposal, in its present form, is
in conflict with Directive 2004/35/EC of 21 April 2004 on
environmental liability with regard to the prevention and reme-
dying of environmental damage, which recognised the primary
application of
including the LLMC. This
could cause problems with regard to the international law of
treaties for Member States which are parties to the 1976 and
1996 LLMC Conventions.

IMO Conventions,

4.7.5.1
The EESC supports the proposal for ships to carry
financial security certificates for abandonment of seafarers and
notes that a joint IMO-ILO working group is working on this
subject, which falls within its remit at international level.

4.7.6
Liability and compensation for spills of chemicals and
bunker fuels are governed by the Hazardous and Noxious
Substances and Bunker Oil Spills Conventions and reflect a

Brussels, 13 September 2006.

consensus of opinion of the international community. The EESC
strongly recommends the Commission to undertake all efforts
for an early entry into force of the HNS and Bunker Oil Spills
Conventions in the EU through their prompt ratification by EU
Member States.

5. Specific comments

The Committee notes with interest the recent 94th Inter-
5.1
national Labour Conference (Maritime Session) of
the ILO,
which adopted a single maritime labour convention in the form
of legally binding provisions and a section containing recom-
mendations. The new convention consolidates and updates the
existing body of maritime conventions adopted since the 1920s
and modified on various occasions over the years into a clear
and comprehensive maritime labour code. The EESC also notes
the Commission to incorporate the ILO
the intention of
Convention (maritime code)
into EU law and supports the
ongoing efforts of the study group on social dialogue with a
view to implementing the Convention and identifying how best
to address the question of its transposition into Community
law.

5.2
Reflecting its ongoing concern about the human element
in maritime transport, the EESC calls on the Commission above
all to make it a priority to encourage all Member States to ratify
this convention in order to have a harmonised legislative basis,
as soon as possible; before it can enter into force the convention
must be ratified by 30 states with at least a third of world gross
tonnage. The EU could also give a strong boost to these efforts
by promoting ratification by EEA countries and third countries
with which there are economic cooperation agreements.

5.3
The cumulative impact of the proposed measures on the
administrations of port and flag states (issue of statutory certifi-
cates, social
inspection, expanded inspection, the objective of
100 % inspection of ships, etc.) should be swiftly assessed by
the relevant authorities so that they can take the necessary steps
regarding organisation,
funding and recruitment as soon as
possible.

5.4
In view of the key responsibilities falling within its remit,
it is important that the European Maritime Safety Agency also
have adequate resources to enable it to fulfil them to the best of
its ability.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND