Amended proposal for a Directive of the European Parliament and of the Council on the civil liability and financial guarantees of shipowners (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2007-10-24
Institutions: European Commission
Subjects: International Maritime Organisation, civil liability, environmental liability, marine insurance, maritime safety, maritime transport, polluter pays principle, pollution control measures

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.10.2007 
COM(2007) 674 final 

2005/0242 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the civil liability and financial guarantees of shipowners 

(presented by the Commission pursuant to Article 250 (2) of the EC Treaty) 

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2005/0242 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the civil liability and financial guarantees of shipowners 

(Text with EEA relevance) 

1. 

STAGE OF PROCEDURES 

The  proposal  –  COM(2005)  593  –  2005/0242  (COD)  –  was  adopted  by  the 
Commission on 23 November 2005 and was sent to the European Parliament and to 
the Council on 30 January 2006.  

The European Economic and Social Committee adopted its opinion on the proposal 
from the Commission on 13 September 2006. 

The Committee of the Regions adopted its opinion on the Commission's proposal on 
15 June 2006. 

The European Parliament adopted 25 amendments at first reading on 29 March 2007. 

2. 

OBJECTIVE OF THE PROPOSAL 

The  objective  is  to  ensure  that  there  is  a  minimum  set  of  rules  common  to  all 
Member  States  governing  the  civil  liability  and  guarantees  of  shipowners  and  to 
define  the  basis  for  rules  that  aim  both  to  prevent  accidents  and  to  compensate  for 
damages. 

The proposal aims to incorporate into Community law:  

–  the  Convention  of  the  International  Maritime  Organisation  (IMO)  on  the 

Limitation of the Liability of Owners of Seagoing Ships (1996 version);  

–  a Resolution of the IMO and the World Labour Organisation on financial security 

certificates for abandonment of seafarers. 

The  proposal  also  aims  to  establish  a  system  for  guaranteeing  mandatory  civil 
liability for shipowners underpinned by an IMO resolution on guarantees. 

3. 

OBJECTIVE OF THE AMENDED PROPOSAL 

The  amended  proposal  adapts  the  original  proposal  on  a  number  of  points  as 
suggested by the European Parliament. 

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4. 

OBSERVATIONS ON THE AMENDMENTS ADOPTED BY THE EUROPEAN PARLIAMENT 

4.1 

Amendments accepted by the Commission 

The Commission can accept amendments 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 15, 16, 17, 
19, 20, 22, 24 and 28. 

4.2 

Amendments accepted by the Commission in part or subject to rewording 

Amendments 5, 21, 23, 26 and 27. 

–  Amendment 5 

The last part of the amendment describes conduct barring limitation (circumstances 
under  which  a  shipowner  loses  the  right  to  limit  his  liability).  The  description  is, 
however,  incomplete,  and  needs  to  be  revised  in  order  to  reflect  all  the  enacting 
terms of the Directive, i.e. not just Article 4(2)(a) (reckless personal act or omission) 
but also Article 4(3) (gross negligence). 

Recital 5a (new): 

"For ships flying the flag of a State party to the 1996 Convention, it should not be 
possible  to  apply  limitation  of  liability  under  the  1996  convention  to  victims  not 
party to the maritime transport operation, if the owner of the ship responsible for 
the damage has failed to act in a professional manner and should have been aware 
of the harmful effects of his act or omission. For ships not flying the flag of a State 
party  to  the  1996  Convention,  it  should  not  be  possible  to  apply  limitation  of 
liability under  the  1996 convention  to victims not party to the maritime transport 
operation, if the owner of the ship responsible for the damage has committed gross 
negligence." 

–  Amendment 21 

The  amendment  describes  the  contents  of  IMO  Resolution  A  930(22).  The 
description,  however,  is  not  complete,  and  should  also  mention  the  payment  of 
outstanding remuneration. 

Article 6, subparagraph 1:  

"Each Member State shall take the necessary measures to ensure that every owner of 
a  ship  flying  its  flag  has  a  financial  guarantee  to  protect  the  seafarers  employed  or 
engaged  on  board  the  ship  in  the  event  of  abandonment,  in  accordance  with  IMO 
Resolution  A  930(22),  sufficient  to  cover  the  costs  of  accommodation,  medical 
assistance and repatriation and to pay outstanding remuneration."  

–  Amendments 23, 26 and 27 

These three amendments cover the creation of a Community Office  responsible for 
managing financial guarantee certificates. 

While  it  may  be  legitimate  to  attempt  to  centralise  the  management  of  financial 
guarantee certificates at a European level, to lessen the burden on Member States and 

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to  enhance  the  standardisation  of  procedures,  the  creation  of  such  an  office  would 
have  administrative  and  financial  consequences  that  need  to  be  weighed  up.  The 
Commission would therefore like to examine the initiative in greater detail. 

One option would be to entrust the tasks to the European Maritime Safety Agency, 
clarifying  the  financial  and  institutional  consequences,  rather  than  creating  a  new 
office. 

New recital:  

"It  may  be  appropriate  in  the  future  to  centralise  the  management  of  financial 
security certificates at European level. The European Maritime Safety Agency could 
be called upon to perform this role. However it is important to first carefully identify 
the financial and institutional consequences that this would have for the Agency". 

4.3. 

Amendments not accepted by the Commission 

Amendments 7 and 25 cannot be accepted by the Commission. 

5. 

AMENDED PROPOSAL 

Having  regard  to  Article  250(2)  of  the  EC  Treaty,  the  Commission  amends  its 
proposal as indicated above. 

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