REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Report on liability and compensation for financial damages sustained by places of refuge when accommodating a ship in need of assistance
Date: 2012-11-30
Institutions: European Commission
Subjects: civil liability, harbour installation, indemnification, maritime safety, maritime transport, transport accident

EUROPEAN 
COMMISSION 

Brussels, 30.11.2012  
COM(2012) 715 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Report on liability and compensation for financial damages sustained by places of refuge 
when accommodating a ship in need of assistance 

(Text with EEA relevance) 

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   EN 

 
 
 
 
  
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Report on liability and compensation for financial damages sustained by places of refuge 
when accommodating a ship in need of assistance 

(Text with EEA relevance) 

1. 

INTRODUCTION 

The Commission  decided in 2005  to present a modification to the legal framework 
on reception of ships in need of assistance to places of refuge as initially set up by 
Directive 2002/59/EC of the European Parliament and of the Council establishing a 
Community vessel traffic monitoring and information system and repealing Directive 
93/75/EEC.  The  Commission  proposed  the  introduction  of  an  obligation  to  receive 
ships  in  need  of  assistance  if,  following  an  assessment,  this  appears  to  be  the  best 
course of action with a view to protecting human safety and the environment. 

Having regard to specific concerns about the costs ports would have to assume when 
providing refuge to vessels in need of assistance, Article 20d in the amended text of 
the  Directive  2002/59/EC 
to  examine  existing 
compensation mechanisms in MS for potential economic losses suffered by places of 
refuge when accommodating a ship, and to report on the results of this exercise to the 
European Parliament and the Council1. 

the  Commission 

requires 

Prior  to  its  amendment  in  2009,  Directive  2002/59/EC,  more  specifically  Article 
26(2)  thereof,  established  an  obligation  for  the  Commission  to  report  on  the 
implementation  by  Member  States  (MS)  of  appropriate  plans  for  places  of  refuge. 
The  Commission  had  asked  the  European  Maritime  Safety  Agency  (EMSA)  to 
produce relevant information also on the mechanisms of liability and compensation 
applicable in case of reception of a ship in a place of refuge. The data collected by 
EMSA formed the basis for the Commission's report in 2005 and provided additional 
input during the inter-institutional discussions for the third maritime safety package, 
in  particular  for  Directive  2009/17/EC.  Following  the  adoption  of  the  latter,  the 
Commission has received additional, up-to-date, information from EMSA, focusing 
mainly  on  the  applicable  international  instruments  and  the  reinforced  EU  law 
framework pertaining to liability and compensation for damages to places of refuge. 
More to the point, the Commission designated an external consultant to undertake a 
study on the liability and compensation mechanisms available under national law in 
EU MS.  

1 

Directive 2009/17/EC of the European Parliament and of the Council amending Directive 2002/59/EC, 
OJ L 131 of 28/05/2009, p. 101. 

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It  is  on  the  basis  of  this  input  received  by  the  Commission  that  the  need  for  an 
additional  mechanism  of  liability  and  compensation  for  the  damages  suffered  by  a 
place  of  refuge  following  reception  of  a  vessel  in  need  of  assistance  is  assessed  in 
this report. The question  of insurance of ships  is also  considered in this context, in 
view  of  the  recent  entry  into  force  of  Directive  2009/20/EC  of  the  European 
Parliament and of the Council on the insurance of shipowners  for  maritime claims, 
and  the  latest  amendments  to  the  liability  limits  introduced  under  the  International 
Convention  for  Limitation  of  Liability  in  Maritime  Claims  (LLMC  Convention 
1976), as amended by the 1996 Protocol, in the international plane2. 

2. 

INTERNATIONAL FRAMEWORK 

There is no specific obligation under public international law to accommodate a ship 
in  need  of  assistance  in  a  place  of  refuge.  However,  there  is  a  series  of  legal 
provisions  regulating  maritime  transport  and  liabilities  resulting  from  maritime 
accidents,  including  pollution  by  ships  and,  more  specifically,  the  payment  of 
compensation  to  affected  parties.  These  include,  explicitly  in  some  instruments, 
places of refuge and the damages caused by ships in distress accommodated therein, 
as the following analysis shows. 

2.1. 

UNCLOS 

The  UN  Convention  on  the  Law  Of  the  Sea  is  of  little  relevance  in  this  case,  but 
contains  some  general  provisions  on  attribution  of  responsibility  for  unlawful 
measures  taken  in  response  to  maritime  pollution  incidents  and  compensation  in 
cases of marine pollution, which can also apply to places of refuge3. 

2.2. 

Specialised International Conventions 

Specialised  conventions  set  up  strict  liability  regimes  under  international  law,  with 
specific limitations, covering different types of pollution at sea. 

2.2.1.  The CLC – IOPC system 

The most developed liability regime has been established by the 1992 International 
Convention on Civil Liability for Oil Pollution Damage (CLC 1992), complemented 
by the 1992 Convention creating the International Oil Pollution Fund (IOPC Fund) 
and  the  2003  Protocol  creating  a  Supplementary  Fund  with  the  same  objective.  27 
States are parties to all of these instruments, including 19 EU MS.  

Scope of Application: 

The CLC-IOPC system covers damages caused by pollution resulting from the loss 
or dumping at sea of hydrocarbons transported by a vessel. Such damages may also 

2 

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EN 

IMO  Resolution  LEG.5  (99),  adopted  on  19/04/2012  (not  yet  in  force)  proposing  the  increase  of  the 
relevant amounts of the liability limits to reflect the changes in monetary values, inflation and accident 
rates. 
See 
http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf  

UNCLOS: 

Articles 

235(2) 

232 

and 

of 

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result from precautionary measures taken to avoid pollution. Despite the lack of an 
example of this type of damages, the reception of a ship in a place of refuge could be 
considered  a  precautionary  measure  when  it  is  based  on  a  reasonable  decision 
seeking to address a grave and imminent pollution risk. In that case, there would be 
to 
no  need  for  additional  compensation  mechanisms,  unless 
accommodate  the  vessel  was  taken  in  order  to  save  the  vessel  itself  or  its  cargo, 
which  would  –  in  any  event  –  be  difficult  to  distinguish  from  a  risk  of  pollution. 
Payable  damages  are  conceived  very  broadly  in  this  system,  covering  damages  to 
goods,  loss  of  revenue  suffered  by  pollution,  environmental  damages,  and  pure 
economic  losses  (resulting  from  the  impossibility  for  the  owners  of  non-polluted 
goods to derive the usual revenues from their goods). The only applicable limitation 
to the latter type of damages pertains to the lack of a direct causal link between the 
economic loss and the pollution. 

the  decision 

Shipowner liability: 

Under  the  1992  CLC,  strict  liability  applies  to  the  shipowner,  who  is  covered  by 
compulsory  insurance  in  accordance  with  the  LLMC  provisions.  The  shipowner 
cannot  be  exonerated  from  liability,  with  the  exception  of  the  case  of  damage 
resulting  from  an  act  of  war,  a  natural  disaster  taking  the  form  of  force  majeure,  a 
third-party act committed with the intention to cause the specific damage, or in case 
the  damage  was  caused  exclusively  by  negligence  of  the  competent  authority  in 
charge  of  providing  navigation  assistance  to  the  vessel  during  the  exercise  of  that 
function.  In  the  context  of  reception  of  a  ship  in  a  place  of  refuge,  the  decision  to 
receive the ship could give rise (e.g. if unfounded, or based on erroneous assessment 
of  the  facts)  to  fault  liability  of  the  competent  authority  taking  the  decision  or 
negligence  of  the  victim  (i.e.  place  of  refuge);  thus,  precluding  liability  for 
compensation of the shipowner partially or on the whole. 

Additional liability cover: 

For damages beyond the limits of the CLC, or in case of non-responsibility or of a 
default  of  the  shipowner,  the  IOPC  Fund  and  Supplementary  Fund  will  pay 
compensation  to  the  victims.  Under  these  regimes  liability  exemptions  are  even 
narrower and apply only to circumstances of pollution resulting from an act of war, 
from  a  war  ship,  or  a  ship  operated  by  a  State  for  non-commercial  purposes,  or  in 
case of a lack of evidence of causality between the ship and the damage caused, or 
between  the  damage  and  the  intentional  act  or  negligence  of  the  victim. 
Compensation  payable  by 
these  funds  can  reach  a  cumulative  ceiling  of 
approximately 1.1 billion euros4 for all damages. Except for the case of the Prestige 
accident, at which time the second additional fund had not been set up yet, there are 
no examples where compensation payable under the CLC-IOPC mechanism has been 
insufficient  to  cover  damages.  All  the  more  so,  given  that  damages  to  places  of 
refuge  are  comparatively  small  in  the  scale  of  pollution  by  hydrocarbons,  the 
compensation cover provided by funds in these cases appears to be sufficient. 

4 

These amounts are calculated on the basis of Special Drawing Rights (SDR) conversion rates as at 26 
September 2012: http://www.imf.org/external/np/fin/data/rms_five.aspx . 

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2.2.2.  The HNS Convention 

The  1996  International  Convention  on  Liability  and  Compensation  for  Damage  in 
Connection with the Carriage of Hazardous and Noxious Substances by Sea ("HNS 
Convention")  covers  damages  caused  by  hazardous  and  noxious  substances 
transported by sea, other than hydrocarbons. It was amended by a Protocol in 2010, 
which  is  considered  to  have  lifted  the  obstacles  to  ratification  of  the  Convention 
paving the way for its entry into force. 

Based on the CLC-IOPC system, the HNS Convention also establishes two levels of 
compensation for victims:  

(a)  On  the  first  level,  compensation  relies  on  liability  of  the  shipowner,  which  is 
automatic and has a threshold of approximately 137 million euros5 that are covered 
by compulsory insurance taken by the registered shipowner;  

(b)  If  the  latter  is  not  responsible  (i.e.  Article  7(2))  or  is  in  default  or  in  case  the 
liability threshold for the shipowner is surpassed, a special fund covers compensation 
up to approximately 300 million euros6. 

According to information provided to the Commission by the International Group of 
Protection  and  Indemnity  Clubs  ('P&I  Clubs'),  there  have  not  been  any  cases  of 
pollution by hazardous and noxious substances where the amount of damages went 
over the limits defined in the Convention. 

2.2.3.  The Bunker Oil Convention 

The  International  Convention  on  Civil  Liability  for  Bunker  Oil  Pollution  Damage 
("Bunker Oil Convention") entered into force in 2008 and has been ratified by 22 EU 
Member  States.  It  establishes  a  liability  regime  for  damages  caused  by  bunker  oil, 
which  include  both  damages  resulting  from  pollution  and  impairment  of  the 
environment,  as  well  as  costs  of  preventive  measures  and  further  loss  or  damage 
caused by preventive measures. 

Liability  for  compensation  is  exclusively  assigned  to  the  shipowner  (defined  lato 
sensu in the Convention), it is automatic – with the same applicable exceptions as in 
the  CLC-IOPC  system,  and  it  is  guaranteed  by  compulsory  insurance  cover  for 
vessels over 1000 tonnes. However, liability is also limited by the limits established 
in the LLMC Convention. These limits should, in principle, cover any compensation 
claim  for  damages  resulting  from  ship  operations,  in  view  also  of  current  accident 
statistics, which show that  pollution damages where the LLMC limits proved to be 
insufficient have been relatively rare. 

2.2.4.  The Wreck Removal Convention 

The Nairobi International Convention on the Removal of Wrecks ("Wreck Removal 
Convention) was adopted in 2007 and has not entered into force yet, with only 1 EU 

5 
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Ibid. 
Ibid. 

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Member State having ratified it. It specifically prescribes the  possibility for coastal 
States to proceed with the removal of a shipwreck, situated in a place of refuge, at 
the cost of the shipowner who should have insurance covering the relevant damages, 
within the limits established under the LLMC Convention.  

It is important to note that States parties to the Wreck Removal Convention may, on 
the basis of a special notification to the IMO Secretary-General issued under Article 
3.2  of  the  Convention,  exclude  the  application  of  the  limits  to  the  liability  of  the 
shipowner provided in the LLMC Convention for the costs of removing a shipwreck 
within  their  territory.  Several  States  have  made  use  of  this  provision  to  issue 
notifications, thus lifting the limitations to liability for costs of wreck removal within 
their territorial waters, including damages suffered by places of refuge. 

2.3. 

Other international proceedings 

The IMO has adopted in 2003 the Guidelines on places of refuge for ships in need of 
assistance7.  These  include  the  holding  of  insurance  and  the  required  financial 
security  as  factors  in  the  assessment  of  the  vessels  by  coastal  authorities  for 
admission in a place of refuge. Following the adoption of the Guidelines, the Legal 
Committee of the IMO, on a number of occasions, has discussed the issue of liability 
and compensation for damages suffered, which was not addressed in the Guidelines.  

In 2009, a draft instrument on 'Places of Refuge'8, sponsored by the Comité Maritime 
International (CMI), was submitted to the IMO Legal Committee. The draft proposed 
a  specific  provision  on  guarantee  or  other  financial  security  to  be  provided  by  the 
shipowner  at  the  request  of  a  place  of  refuge  that  has  agreed  to  accommodate  the 
ship. The Committee saw no need for an additional instrument to address the issue of 
compensation  for  damages  suffered  by  places  of  refuge  following  admission  of  a 
ship, and concluded: "the international regime comprising the existing liability and 
compensation  conventions  for  pollution  damage  at  sea  provided  a  comprehensive 
legal  framework,  especially  when  coupled  with  the  Guidelines  on  places  of  refuge 
adopted pursuant to resolution A.949(23) and other regional agreements"9. 

There  are  also  a  few  examples  of  regional  instruments,  to  which  both  the  EU  and 
certain EU MS are parties, addressing the issue of accommodation of ships in places 
of  refuge10.  They  focus  on  an  enhanced  cooperation  between  coastal  States  in  the 
specific  region  including  information  exchange  and  resource-sharing  for  immediate 

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9 

10 

IMO Resolution 949(23), adopted on 05/12/2003. 
Document  LEG95/9  of  23/01/2009,  submitted  by  CMI  under  'Any  Other  Business',  Annex  I  "Draft 
Instrument on Places of Refuge".  
Document LEG95/10 of 22/04/2009, "Report of the Legal Committee on the Work of its Ninety-Fifth 
Session", pp. 24-25. 
Protocol  Concerning  Cooperation  in  Preventing  Pollution  from  Ships  and,  in  Cases  of  Emergency, 
Combatting  Pollution  of  the  Mediterranean  Sea,  adopted  25/01/2002,  entered  into  force  17/03/2004. 
(Source: www.unepmap.org ). Also, Agreement for Cooperation in Dealing with Pollution of the North 
Sea  by  Oil  and  Other  Harmful  Substances  ('Bonn  Agreement'),  signed  in  1983  as  amended  by  the 
Decision  of  21/09/2002,  Chapter  27  "Places  of  Refuge".  (Source:  www.bonnagreement.org  ).  Baltic 
Marine  Environment  Protection  Commission  ('HELCOM),  Recommendations  on  a  "Mutual  Plan  for 
Places of Refuge in the Baltic Sea Area", HELCOM Document "Recommendation 31E/5" adopted on 
20/05/2010, available at: http://www.helcom.fi/Recommendations/en_GB/rec31E_5/ 

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response  to  situations  of  distress,  with  a  view  to  avoiding  or  limiting  pollution. 
However,  these  do  not  include  any  provisions  on  liability  and  compensation  for 
damages sustained by places of refuge. They all make reference to the international 
instruments,  the  2003  IMO  Guidelines  and  relevant  EU  legislation  on  this  topic. 
Hence, these examples confirm the importance of an imminent entry into force for all 
relevant instruments, as well as the interest of individual EU MS in ensuring better 
implementation of the existing framework in their region. 

3. 

EU FRAMEWORK 

Apart from Directive 2002/59/EC, EU law regulates, indirectly, the issue of liability 
and damages for losses sustained by places of refuge when accommodating a vessel 
in  distress  in  two  legal  instruments  outlined  below.  These  are  without  prejudice  to 
the international conventions that already apply in the EU (CLC-IOPC, Bunker Oil, 
and  LLMC  Conventions–  pending  ratification  and  entry  into  force  of  the  HNS  and 
Wreck  Removal  Conventions).  Furthermore,  on  the  issue  at  hand,  the  European 
Court of Justice has ruled11 that other pieces of EU legislation can provide a basis for 
compensation 
to  Member  States' 
administrations, outside the scope of international conventions, such as the Council 
Directive 75/442/EEC on Waste12.  

for  preventive  and 

remedial  measures 

3.1. 

Directive  2004/35/EC  of  the  European  Parliament  and  of  the  Council  on 
environmental  liability  with  regard  to  the  prevention  and  remedying  of 
environmental damage 

The Directive applies to environmental damages caused by transport of dangerous or 
polluting  goods  by  sea  or  to  any  imminent  threat  of  such  damage  arising  from  an 
incident, with the exception of damages falling within the scope of the international 
conventions listed in Annex IV to this Directive (e.g. CLC-IOPC Convention, HNS 
Convention,  Bunker  Oil  Convention).  It  establishes  liability  of  the  transporter  of 
these goods, within the limits of the LLMC Convention in its up-to-date version, in 
order to finance preventive measures or reparation and restitution. 

This  instrument  is  imposing  important  obligations  on  the  ship's  operator  to  prevent 
the damage and to clean-up the resulting pollution. On the other hand, it only allows 
ports acting as places of refuge to invoke responsibility of shipowners for reparation 
of environmental damages. 

Transposition  of  this  Directive  by  Member  States  is  complete,  and  control  of 
implementation by the Commission has also produced highly satisfactory results. 

11 
12 

Case C-188/07, Commune de Mesquier v. Total France SA, ECR 2008, p. I-4501. 
OJ  L  194,  25/07/1975,  p.  39,  repealed  by  Directive  2006/12/EC  of  the  European  Parliament  and  the 
Council of 5 April 2006 on waste, OJ L114, 27/04/2006, p.9. 

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3.2. 

Directive  2009/20/EC  of  the  European  Parliament  and  of  the  Council  on  the 
insurance of shipowners for maritime claims 

The Directive creates an obligation for all ships flying the flag of a Member State or 
entering  the  port  of  a  Member  State  to  have  sufficient  insurance  cover  for  all 
maritime  claims  subject  to  the  limits  of  the  LLMC  Convention  as  amended  by  the 
1996 Protocol. 

Under Article 2(1) of the LLMC, the list of claims subject to limitation of liability 
includes damages to property (including port installations) in direct relation with the 
ship operations or the salvage operations, as well as the losses resulting from these 
operations.  Damages  pertaining  to  wreck  removal  are  also  expressly  mentioned  in 
this  list.  Hence,  the  main  damages  that  can  be  sustained  by  places  of  refuge  fall 
within the scope of Directive 2009/20/EC and are covered by compulsory insurance 
in the EU. 

Only in cases where the totality of claims resulting from operations of the vessel in 
question  goes  beyond  the  threshold  set  up  by  the  Convention,  could  the  place  of 
refuge be left without compensation for part of its damages. Taking into account the 
relevant amount of these thresholds the likelihood of such cases should be limited, if 
not inexistent. 

In  light  of  the  provisions  of  this  Directive,  it  is  unlikely  that  a  vessel  not  having 
sufficient insurance cover will find itself in a position to request accommodation in a 
place  of  refuge,  as  it  cannot  enter  EU  waters  in  any  event.  This  introduces  an 
additional  layer  of  liability  cover  –  rationae  loci  –  for  places  of  refuge  against 
shipowners  in  case  of  damages.  Albeit  unlikely,  one  may  not  exclude  the  scenario 
whereby a vessel flying a third-State flag, thus not covered by the strict obligation to 
have  insurance  applicable  to  all  EU  MS  flags  under  this  Directive,  needs  to  be 
accepted  in  a  place  of  refuge  without  sufficient  insurance  cover  (Article  20c(1)  of 
Directive 2002/59/EC). 

The mechanism of insurance only applies when liability of the shipowner is invoked. 
In  general,  unless  a  right  of  direct  legal  action  of  the  victims  against  the  insurer  is 
created by specific rules (i.e. special terms in the insurance contract), the prevailing 
principle states that shipowners must first compensate the victims before being able 
to turn to their insurer to cover the relevant costs. According to the practice of P&I 
Clubs – providing liability insurance to more than 90% of the world fleet tonnage – 
the  insurer  only  covers  liability  of  the  shipowner  if  that  has  been  established  by  a 
definitive court judgment or an arbitral award approved by the insurer.  

The  Directive  2009/20/EC  had  to  be  transposed  by  Member  States  by  1  January 
2012.  The  vast  majority  of  Member  States  have  already  communicated  to  the 
Commission  the  adopted  measures.  The  Commission  has  planned  a  detailed 
examination  of  the  notified  transposition  measures  to  be  carried  out  in  the  second 
half of this year. 

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4. 

NATIONAL FRAMEWORK 

In  cases  not  covered  by  the  specific  mechanisms  emanating  from  an  international 
convention or Directive 2004/35/EC damages suffered by a place of refuge are dealt 
with by the national provisions on liability of one of the 22 coastal States of the EU. 
More  specifically,  cases  where  national  law  will  apply  instead  of  the  international 
and  EU  framework  outline  above  are  limited  to:  (a)  non-ratification  by  the  State 
concerned  of  the  relevant  international  instrument;  (b)  non-entry  into  force  of  the 
relevant international convention; (c) the exemptions to and limitation of liability that 
are  established  above  under  international  and  EU  law;  and  (d)  type  of  damages  to 
places  of  refuge  not  covered  by  international  and  EU  law.  In  regards  to  the  latter 
case,  it  must  be  noted  that  this  is  not  very  likely  as  the  most  important  types  of 
damages  (i.e.  oil,  HNS,  wreck  removal,  or  any  environmental  damage)  have  now 
been covered by specialised international instruments and Directive 2004/35/EC. 

4.1. 

Liability of shipowners 

'Fault'  is  the  basis  for  liability  of  private  operators,  namely  shipowners,  which 
constitutes a common ground among the 22 coastal States of the EU. In 10 of these 
States, liability of the shipowner may, however, be maintained even in the absence of 
fault, either in his capacity as operator of an activity entailing risks, or as guardian of 
a  potentially  dangerous  object,  or  as  responsible  –  in  principle  –  for  the  damages 
caused  by  his  subordinates.  In  2  other  States  liability  of  shipowners  with  regard  to 
damages  caused  by  reception  of  a  ship  in  a  place  of  refuge  is,  in  most  cases, 
automatic. 

In  general,  reparations  due  to  places  of  refuge  cover  the  totality  of  these  damages, 
independently of the existence of a direct or indirect causal link. 

The  rules  of  limitation  of  liability  of  shipowners  emanating  from  the  LLMC 
Convention apply, either in their 1976 version (IE), or in their amended 1996 version 
(18  coastal  Member  States  having  ratified  the  1996  Protocol).  In  the  3  remaining 
coastal  States,  liability  is  subject  to  specific  limitations  (IT),  or  is  in  principle 
unlimited, without prejudice to pertinent international conventions (PT, SL). 

4.2. 

Liability of the coastal State 

In cases where liability of the shipowner cannot be invoked, it is possible to engage 
liability  of  the  coastal  State  whose  competent  authority  has  taken  the  decision  to 
accept  a  vessel  in  a  place  of  refuge,  thus,  resulting  in  the  damages  eventually 
suffered. 

All  coastal  EU  MS  can  be  held  responsible  in  such  cases  on  the  basis  of  fault. 
However, in 11 of those, liability of the State can also be founded in the absence of 
fault. That is either under a general regime of 'objective liability' of the State (on the 
basis  of  risk  or  of  breach  of  equality  vis-à-vis  public  burdens),  or  on  the  basis  of 
special provisions that prescribe reparation of damages specifically caused to places 
of refuge. In these cases, reparation can be limited to irregular damages, exceeding 
the threshold of damages a place of refuge must reasonably sustain. 

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In general, in the residual cases where the right to reparation of damages suffered by 
a  place  of  refuge  is  solely  based  on  national  law,  one  finds  a  generally  accepted 
framework  of  liability  based  on  fault  among  EU  MS,  despite  the  lack  of 
harmonisation  at  EU  level.  There  are,  however,  several  cases  where  other  types  of 
liability  may  apply,  both  for  the  private  operators  and  the  State  (e.g.  objective 
liability, or absolute liability). 

In  view  of  the  applicable  national  laws  on  this  issue,  one  may  draw  the  following 
conclusions.  In  6  coastal  MS  (DK,  EE,  FR,  DE,  PT,  SL)  a  national  authority 
controlling  a  place  of  refuge  can  in  principle  always  obtain  compensation  for  the 
damages incurred, either on the part of the shipowner or of the State. Only in specific 
cases  certain  types  of  damages,  irregular  or  constituting  pure  economic  losses,  can 
remain incumbent on the competent authority taking the decision to accommodate a 
vessel in a place of refuge. In the majority of other MS (BU, GR, IT, LV, LT, MT, 
NL,  PL,  RO,  ES,  SW,  UK),  this  particular  issue  is  covered  by  a  liability  regime 
where the grounds for liability exemption remain very limited: force majeure, lack of 
fault  of  the  public  authority,  or  –  in  some  cases  –  damages  constituting  pure 
economic losses. 

5. 

CONCLUSIONS 

In  light  of  this  analysis,  there  are  three  layers  of  applicable  law  to  the  issue  of 
liability  and  compensation  for  damages  sustained  by  places  of  refuge,  which  are 
complementary.  The  Commission's  conclusions  as  well  as  some  recommendations 
for better implementation of the existing framework are presented below. 

5.1. 

International 

International conventions adopted to this date on the subject of liability in the area of 
maritime  transport  offer  a  system  of  rules  ensuring  the  applicability  of  liability 
mechanisms that are satisfactory in the areas covered by these conventions, and also 
pertinent in the context of reception of a ship in a place of refuge.  

It is important to note that Member States have endorsed in Council in 2008 a strict 
commitment  to  ratify  all  relevant  international  instruments  for  the  complete 
international system of rules relating to maritime safety – addressing also damages to 
places  of  refuge  –  to  enter  into  force13.  The  Commission  has  reminded  MS  of  this 
commitment on several occasions thereafter. For these purposes, an up-to-date table 
on  the  status  of  ratification  of  pertinent  international  conventions,  including  EU 
Member States, is published by the IMO14.  

Recommendations for better implementation: 

With regard to limitation of liability for maritime claims, MS should ratify the 1996 
Protocol to the LLMC Convention. In order to avoid the risk of reduction of payable 

Council Document No. 15859/08 ADD 1, of 19/11/2008, "Statement by the Member States on Maritime 
Safety". 
See IMO website at: http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx  

1. 

13 

14 

EN 

10 

   EN 

 
 
                                                 
2. 

3. 

4. 

5. 

compensation  following  application  of  these  limits,  the  latter  should  be  regularly 
updated, as has been done recently at IMO (LEG 99, see above). 

It  would  also  be  advisable  that  all  MS  parties  or  prospective  parties  to  the  LLMC 
Convention exclude from its scope of application, as it is possible under Article 3.2 
of  the  Nairobi  Wreck  Removal  Convention,  the  costs  of  removing  wrecks  within 
their  territorial  waters,  including  damages  to  places  of  refuge.  This  will  mean  that 
there cannot be a liability limit for such damages. 

It  could  be  useful  to  obtain  all  relevant  clarifications  at  the  IMO  level  in  order  to 
confirm that reception of a vessel in a place of refuge can, in principle, be considered 
a  preventive  measure,  as  this  would  ensure  applicability  of  some  international 
conventions (e.g. CLC-IOPC, Bunker Oil) to this issue. 

Another possible improvement of the current system would be the clarification, at the 
IMO  level,  of  the  notion  of  'pure  economic  losses'  for  which  compensation  can  be 
excluded, in order to achieve a coherent approach to this matter, bearing in mind that 
these may not have a sufficiently direct causal link with the damaging act. 

A general compulsory liability insurance requirement, including third party liability, 
in line with the current practice of P&I Clubs, should be created at the international 
level, following up on earlier discussions at the IMO on this subject15. 

5.2. 

EU 

The  existing  EU  legislation  on  this  issue  adds  to  the  international  conventions  a 
particularly strict approach to liability for environmental damage, and an obligation 
to  have  sufficient  insurance  cover  or  other  financial  guarantee  for  every  vessel 
entering EU waters – without exceptions. This regime protects also places of refuge 
as it addresses the most 'sensitive' aspects of their operation.  

Albeit  not  relevant  for  the  purposes  of  this  report,  enhancing  cooperation  and 
communication between MS in order to facilitate decision-making in cases of ships 
in need of assistance can form a potential improvement to the general framework on 
places of refuge. 

5.3. 

National 

For  the  residual  cases  that  rely  solely  on  national  laws,  the  study  carried  out  on 
behalf  of  the  Commission  shows  that  in  the  majority  of  MS  damages  to  places  of 
refuge are sufficiently covered by rules of reparation, which – in some cases – go as 
far as ensuring systematic compensation for any potential damages. 

The few differences that exist in regimes of compensation among MS do not threaten 
the uniform application of the Directive in respect of reception of vessels in places of 
refuge. Hence, these are not sufficient to justify the creation of a new regime specific 
to one category of operators.  

15 

IMO Resolution A.898(21), Guidelines on Shipowners' Responsibilities in Respect of Maritime Claims, 
adopted on 25/11/1999. 

EN 

11 

   EN 

 
                                                 
Recommendation for better implementation: 

MS, in their national laws, should continue to carefully consider and define the risks 
that places of refuge must assume as part of their normal operation, as it is the case 
with other economic operators. 

EN 

12 

   EN