Common Position (EC) No 29/2008 of 9 December 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council on the insurance of shipowners for maritime claims (Text with EEA relevance)
Date: 2008-12-09
Institutions: Council of the European Union
Subjects: civil liability, claim, environmental liability, insurance, law of the sea, maritime safety, marketing standard, penalty, polluter pays principle, pollution control measures

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COMMON POSITION (EC) No 29/2008

adopted by the Council on 9 December 2008

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

(Text with EEA relevance)

(2008/C 330 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

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

(6)

Having regard to the opinion of
Regions (2),

the Committee of

the

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

laid down in

Whereas:

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

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

(1)

(2)

(3)

(4)

(5)

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

Dissuasive measures have already been adopted under
Directive 2005/35/EC of the European Parliament and of
the Council of 7 September 2005 on ship-source
for
pollution and on the introduction of penalties
infringements (4).

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

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

Non-compliance with the provisions of
should be

rectified. Directive 2008/…/EC of

this Directive
the

(1) OJ C 318, 23.12.2006, p. 195.
(2) OJ C 229, 22.9.2006, p. 38.
(3) Opinion of the European Parliament of 29 March 2007 (OJ C 27 E,
31.1.2008, p. 166), Council Common Position of 9 December 2008
and Position of the European Parliament of … (not yet published in the
Official Journal).

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

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject-matter

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

Article 2

Scope

This Directive shall apply to ships of 300 gross tonnage or

1.
more.

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

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

(5) OJ L …

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Article 3

Definitions

States and the flag State concerned. As a result of the issuing of
such an expulsion order, every Member State shall refuse entry
of this ship into any of its ports until the shipowner notifies the
certificate referred to in Article 6.

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

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

Article 6

Insurance certificates

for example,

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

indemnity insurance of

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

The certificates issued by the insurance provider shall

2.
include the following information:

(c) ‘1996 Convention’ means the consolidated text of

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

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

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

(c) type and duration of the insurance;

Article 4

Insurance for maritime claims

Each Member State shall require that shipowners of ships

1.
flying its flag have insurance covering such ships.

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

claims

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

for the limitation of

to limitation under

Article 5

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

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

(d) name and principal place of business of the provider of the
the place of business

insurance and, where appropriate,
where the insurance is established.

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

Article 7

Penalties

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

to this Directive and shall

take all

Article 8

Reports

Commission

Every three years, and for the first time before 1 January 2015,
the
the
European Parliament and the Council on the application of this
Directive.

present

report

shall

to

a

Article 9

Transposition

2.
If the certificate referred to in Article 6 is not carried on
board, and without prejudice to Directive 2008/…/EC providing
for detention of ships when safety issues are at stake,
the
competent authority may issue an expulsion order to the ship
which shall be notified to the Commission, the other Member

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

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

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

Article 10

Entry into force

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

Article 11

Addressees

This Directive is addressed to the Member States.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

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ANNEX

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

— The International Convention on Liability and Compensation for Damage in Connection with the Carriage of

Hazardous and Noxious Substances by Sea, 1996 (HNS Convention).

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

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

— Regulation (EC) No …/2008 of the European Parliament and of the Council of … on the liability of carriers of passen-

gers by sea in the event of accidents (1).

(1) OJ L …

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

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

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

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

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

II. ANALYSIS OF THE COMMON POSITION

General

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

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

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

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

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

(1) Doc. 5907/06.
(2) Doc. 7805/07 CODEC 277 MAR 20 ENV 171.
(3) CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195).
(4) CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).
(5) Doc. 15859/08 ADD 1.

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Key policy issues

i) Mandatory insurance for maritime claims

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

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

ii) Control, compliance and penalties

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

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

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

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

III. CONCLUSION

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

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