CELEX: 51994PC0501
Language: en
Date: 1994-11-15
Title: Amended proposal for a COUNCIL DIRECTIVE 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

;.;1
     COMMISSION OF THE EUROPEAN COMVIUNITIES
                                                   C0M(94) 501 final
                                                   Brussels, 15.11.1994
                                                   94/0068 (SYN)
                                Amended proposal for a
                                   COUNCIL DIRECTIVE
      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.
             (presented by the Commission pursuant to A r t i c l e 189 A (2)
                                  of the EC-Treaty)
 ---pagebreak---                                EXPLANATORY MEMORANDUM
During its 24-28 October 1994 session, the European Parliament approved, subject to a
number of amendments, the Commission's proposal for a Council directive 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.
The amendments adopted by the Parliament do not affect the purpose of the draft Directive
 rather they enhance the expected effectiveness of certain provisions or clarify them. Although
the Commission agreed in principle with almost all the amendments, it did not accept those
 amendments which are not in line with the provisions of the relevant international conventions
of the International Maritime Organization and the International Labour Organization, or
which transfer power to an international forum over which the European Union has no
jurisdiction, or finally which duplicate equivalent provisions which already exist elsewhere
in the draft Directive.
More precisely, the Commission could not accept
     the amendment to article 3 (4) since the text proposed by the Parliament, if accepted,
     would broaden the scope of derogations to the Directive, and run contrary to those
      international laws (in particular the SOLAS Convention) on which the Commission's
     proposal is based.
      the amendments to: articles 4 and 5(1) since the proposed texts are redundant; in fact they
      correspond to the provisions of article 20 and of article 3 (1) respectively.
      the amendment to article 5 (3) because the European Union cannot simply accept without
      a right of control, the inspections carried out by inspectors in countries over which it has
      no jurisdiction.
      the amendment to article 10 (4) since it would considerably weaken the right of member
      States to refuse rogue vessels access into their ports, a right of refusal which is granted
      also under international law.                                                  -
 The Commission has accepted without reservation the amendments to articles 2, 5(4), 7 (3a),
 8 (la), 9 (4), 9 (4a), 9 (4b), 10 (1), 10 (5), 10 (6), 11 (la) and (2a), 14, 15 (1), 15 (3), 17,
  18, 19 Annex I and Annex III.
 Most amendments constitute drafting improvements, bringing more clarity into the text. Some
 amendments make the proposal politically more widely acceptable, it is the case of article 2
 (§ 5&6) and 5 (4), others bring an added value to it. In particular :
 -     the amendments to articles 7 (3a), 8 (la), 9.(4), 9 (4a), 11 (la and 2a), and to article 14
       bring more clarity on the inspector's profile, and in particular its independence from
       commercial interests as well as on its tasks.
                                                                                                   (•
 ---pagebreak---     other new articles 9 (4b) and 9 A proposed by the Parliament grant the operator a right
    of appeal and of compensation while limiting potential abuses of such a right. These
    provisions are in line with current legal practices in several Member States in other
    transport modes.
    the amendments to the annexes 1 and III will have the effect of increasing the number and
    the types of vessels to be targeted by the inspectors for more accurate controls while the
    amendment to article 15 increases the financial burden for the detained ships.
All these amendments are undisputable added value to the proposed Directive.
Finally the Commission has accepted the substance of the amendments related to articles 3
(5) and to Annex. VII, subject to drafting improvements.
                                                                                               o
 ---pagebreak---                                        Amended proposal for a
                                       COUNCIL DIRECTIVE
         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.
                   -Original text-                                -Amended text-
                                         Article 2
For the purpose of this Directive               unchanged
including its Annexes,
'Conventions':                Means     the     1. 'Conventions':  (rest unchanged)
International     Convention on Load
Lines,     1966,     the      International
Convention for the Prevention of
Pollution from Ships, 1973, and the
Protocol of 1978 related thereto, the
International Convention on Standards
of    Training,     Certification       and
Watchkeeping for Seafarers, 1978, the
Convention     on    the      International
Regulations for Preventing Collisions
at Sea, 1972, the International
Convention on Tonnage Measurement of
Ships, 1969 and the Merchant Shipping
(Minimum Standards) Convention, 1976
(IL0 No. 147), together with the
Protocols and amendments to these
Conventions and related Codes of
mandatory status, in forcé at the
date of adoption of this Directive.
 'MOU':     Means    the Memorandum of          2. 'MOU':  (rest unchanged)
Understanding on     Port State Control,
signed in Paris     on 26 January 1982,
as amended at         the date of the
adoption of this    Directive.
'Ship': Means any seagoing vessel to            3, 'Ship':  (rest unchanged)
which one or more of the Conventions
apply, flying a flag other than the
one of the port State.
                                                                                    ( *
 ---pagebreak---        -Original text-                               -Amended text-
                                               ' Surveyor'          Means      civil
                                           servant, duly authorized bv the
                                           competent authority of a Member
 'Inspection': Means a visit on board      5. 'Inspection': Means a visit on
a ship in order to control both the        board a ship in order to control both
validity of the relevant certificates      the    validity      of    the  relevant
and other documents and the condition      certificates and other documents and
of the ship, its equipment and crew.       the condition of the ship, its
                                           equipment and its crew and their
                                           living and working conditions.
'A more detailed inspection': Means        6. 'A more detailed inspection':
an inspection where the ship, its          Means an inspection where the ship,
equipment and crew as a whole or, as       its equipment and crew as a whole or,
appropriate,        parts     thereof  are as appropriate, parts thereof are
subjected to an in depth inspection        subjected to an in depth inspection
in the circumstances as specified in       in the circumstances as specified in
article 6, paragraph 3, as regards         article 6, paragraph 3, as regards
the ship's construction, equipment,        the ship's construction, equipment,
manning and compliance with on board       manning j     living       and    working
opera t iona1 procedures.                  conditions and compliance with on
                                           board operational procedures.
'Enhanced control': Means a thorough       7, 'Enhanced      control'          (rest
inspection in the cases specified in       unchanged)
article 7.
'Special inspection regime': Means         Delete
an inspection scheme referred to in
article 5. paragraph 4 limited in its
extent and with a low freouency.
'Detention':           Means    the formal 8.  'Detention':      (rest unchanged)
prohibition against a ship to proceed
to sea or to -continue an operation
due to identified deficiencies which,
singly or together, make the ship
unseaworthy,           or    render    the
continuation of such an operation
hazardous, irrespective of the time
the ship is going to stay in port.
'Surveyor': Means a civil servant,
duly authorized hv the competent
Authoritv of a Member State.
                                                                                     k
 ---pagebreak---     o...»^*>'f Original-text—--•»—        , •-«w^^s^r!,^,,^*-^
                                   Article 3, paragraph 5 (new)
                                                          5.     The   Member    States   shall
                                                         supply the Commission with all
                                                         necessary      information   for   the
                                                         development      of   priorities   and
                                                         practices which will. allow better
                                                          targeting of ships likely to be
                                                         defective.
                                                         Any consequent amendment of article
                                                          5 will be made under the provisions
                                                         of Article 17.
                                              Article 5 (4)
4. The Commission, in accordance with                     4. Delete
the procedure laid down in article
19, will establish the provisions for
the categories of ships, and the
conditions under which Member States
shall apply the special inspection
regime for these categories of ships.
The special inspection regime shall
not be applied whenever there are
clear grounds as referred to in
article 6, paragraph 3.
                                          Article 7(3a) (new)
                                                           3a. Enhanced control of passenger
                                                           ships operating regular services
                                                           between ports of Member States shall
                                                           be carried out bv the competent
                                                           authorities of one of these Member
                                                            States.
                                                 Article 8
 On the completion of an inspection, a                     J_j. . (rest unchanged)
 more detailed inspection, or an
 enhanced control, the master of the
 ship shall be provided by the
 surveyor with a document in the form
 specified in Annex 3 to the MOU,
 giving the results of the inspection
 and details of any decisions taken by
                                                                                                C*
 ---pagebreak---                   -Original text-                                   -Amended text-
 the surveyor, and of corrective
action to be taken by the master or
owner.
                                                 1a, Where deficiencies lead to the
                                                 detention of the ship, the report to
                                                 the master pursuant fro Paragraph 1
                                                 Should contain information on th ?
                                                luture Publication of the detention
                                                 as Provided for in this Directive,
                             Article 9(4), 4(a) and 4(b) (new)
4. In the event the inspections                 4. In' the event the inspections
referred to in articles 6 and 7 give            referred to in articles 6 and 7.give
rise to an intervention of any kind.            rise to detention, the competent
the      surveyor    carrying     out   the     authority shall forthwith inform in
inspection shall act in accordance              writing    the    administration,or the
with the provisions of Regulation 19,           Consul, or. in his absence, the
( d ) - m of Chapter I to the Protocol          nearest diplomatic representative of
of 1978 relating to the International           the flag State of the circumstances
Convention for the Safety of Life at            necessitating the intervention.        In
Sea. 1974.                                      addition.    the     surveyor      or the
                                                recognized body responsible for the
                                                classification of the ship shall also
                                                be informed,
                                                4a. The provisions of this Directive
                                                shall be without prejudice to any
                                                additional     requirements        in the
                                                Conventions          regarding        the
                                                notification and reporting procedures
                                                in respect of port State control.
                                                4b. In the exercise of port State
                                                control pursuant to this Directive
                                                every effort must be made to ensure
                                                that ships are not unduly detained or
                                                prevented from proceeding to sea.
                                                Should ships be unduly detained or
                                                prevented from proceeding to sea,
                                                compensation for the loss or damage
                                                incurred shall be paid.
                                                               Article 9a
                                                        Right of appeal (new)
                                                1. The owner or operator of a ship or
                                                his representative in the Member
                                                State shall have the right of appeal
                                                against a decision concerning a
                                                detention of a ship or prohibition of
                                                                                          (<•
 ---pagebreak---          -Original text-                                -Amended text-
                                             ooerations related to a ship taken hy
                                             the competent       authority   or its,
                                             surveyor.
                                             2.    In     accordance    with    their
                                             legislation, the Member States shall
                                             set U P and       operate 'appropriate
                                             appeals procedures for this purpose.
                                             3. The competent authority shall duly
                                             inform the master of the ship of the
                                             right of appeal under paragraph 1.
                           Article 10 (1),      (5) and (6)
1. Where deficiencies referred to in         1. Where deficiencies referred to in
article 9, paragraph 2 cannot be             article 9, paragraph 2 ca/uiot be
rectified in the port of inspection,         rectified in the port of inspection,
the competent authority of that              the competent authority of that
Member State may allow such ship to          Member State may allow such ship to
proceed to a repair yard located in          proceed to the nearest          suitable
the Community, and as decided by the         repair yard as decided by the master
master, provided that the conditions         and    the     authorities    concerned,
determined by the competent authority        provided that the conditions are
of that Member State are complied            determined by the competent authority
wjJJtl. Such conditions shall ensures        of the flag State and approved bv the
that the ship can so proceed without         Member    State     concerned. '"._ Such
risk to the safety and health of             conditions shall ensure that the ship
passengers, or crew, or risk to other        can so proceed without risk to the
ships,    or       without    being    an    safety and health of passengers, or
unreasonable threat of harm to the           çrew, or risk to other ships, or
marine environment.                          without being an unreasonable threat
                                             of harm to the marine environment.
5. The competent authority of the          5. unchanged
Member State where the ship was found
defective shall, in the circumstances
as referred to in paragraph . 4
immediately     alert    the   competent
authorities of all the other Member
States.
Notwithstanding the provisions of          6. Notwithstanding (rest unchanged)
paragraph 4, access to a specific
port may be permitted in case of
force majeure, provided adequate
measures, to the "satisfaction of the
competent authority of such Member
State, have been implemented by the
owner or the master of the ship to
ensure safe entry, and provided that
an appropriate financial security has
been assured.
                                                                                    6
 ---pagebreak---         -Original text-                                     -Amended text-
                              Article 11 (la) and (2a) (new)
                                                1a. Should the surveyor not have the
                                                required     knowledge     relating    to
                                               certain technical areas he mav have
                                                the inspection carried out bv a
                                               surveyor belonging to an organization
                                               which    is     recognized     under   the
                                               directive      on   common     rules   and
                                               standards       for    ship     inspection
                                               organizations (OJ No. . . . ) .
                                               2a. Surveyors shall carry individual
                                               authorization in the form of an
                                               identity card issued bv the competent
                                               authority      pursuant ' to       national
                                               legislation      authorizing     him    to
                                               inspectfcftfrvessel .'
                                               A Community form shall be produced
                                               under the procedure laid down in
                                               Article Y7..
                                       Article 14
Each   competent        authority    shall     Each    competent       authority    shall
publish quarterly the number of                publish quarterly which ships have
detentions which have been carried             been detained in the previous three
out bv that authority in the previous          months and which have been detained
three months. The publication shall            more than once in the previous 24
include the name of the ship, IMO              months.        The publication       shall
number, flag State, the shipowner and          contain:
the classification society, whether            - the name of the ship,
or not it has issued the statutory             - IMO number,
certificates on behalf of the flag             - flag State,
State, and, if applicable, any other           z. the shipowner,
Party which has issued certificates            - the classification society and, if
to such ship in accordance with the            applicable, any other Party which has
Conventions on behalf of the flag              issued certificates to such ship in
State.                                         accordance with the Conventions on
                                               behalf of the flag State, where
                                               relevant.
                                               - the grounds for detention, and
                                               - the port and date of detention.
                                                                                           ,V
 ---pagebreak---                -Original text—-                                        -Amended text-
                                    A r t i c l e 15(1) and (3)   (new)
       1. A fee shall be levied on the                     1 . Where an inspection referred to in
       owner, or the operator of a ship                    Articles 6 or 7 confirms or feveals
       which    has     been     inspected         in     deficiencies      in relation to the
       accordance with this Directive, and                 requirements of a Convention which
       on which deficiencies, justifying a                 justify the detention of a ship, the
       detention, have been revealed. The                  total    cost    chargeable    for    the
       total fee levied in accordance with                 inspection in anv normal accounting
       this article shall cover, but not                   period shall be borne bv the operator
       exceed, the total costs in anv normal               or his representative in the port
       accounting period for the inspections               State.
       carried out after the formal notice
       of detention has been issued.
                                                           3. The detention shall not be lifted
                                                           until such costs have been reimbursed
                                                           in full or adeouate security has been
                                                           lodgedt
                                        Article 17
 The Commission shall be assisted by                The Commission shall be assisted by
 the Committee set up by Article 12 of              the Committee set up by Article 12 of
 Directive 93/75/EC in accordance with              Directive 93/75/EC in accordance with
 the procedure laid down in Article                 the procedure laid down in that
 15-                                                article.          t
                                          Article 18
The Commission, in accordance with                    Xn accordance with the procedure laid
the procedure laid down in Article                    down in Article 12» the Directly» «* y
12L, may;                                             be amended:
(a) amend the inspection obligation                   (a) to adaot       the inspection and
     of Member States mentioned in-                       publication obligations, of Member
     Article 5 on the basis of the                        States mentioned in Articles. 5^
     experience resulting from the                        6. 7 and 14* on the basis of the
     application of this Directive and                    experience resulting 'from the
     taking     into        account      the              application of this Directive and
     developments in the MOU;                             taking       into      account     the
                                                          developments in the MOU;
 (b) amend the Annexes in order to                    (b) to adaot the Annexes in order to
     take into account amendments to                      take into account amendments to
     the    Conventions,        protocols,                the     Conventions,        protocols,
     codes, resolutions of relevant                       codes, resolutions of relevant
     international- bodies and to the                     international bodies and to the
     MOO.                                                 MOU.
 ---pagebreak---       -Original text-                                    -Amended text-
                  A r t i c l e 19
1,    The      representative          of   the Delete
Commission       shall         submit  to the
Committee referred to in Article 17 a
draft of the measures to be taken;
2. The Committee shall deliver its              Delete
opinion on the draft within a time
limit which the chairman mav lav down
according to the urgency gj the.
matter. if necessary bv taking "a
vote; -
 3. The opinion shall be recorded in            Delete
 the minutes: in addition each Member
 State has the right to have its
position recorded in the minutes:
 4. The Commission shall take the               Delete
utmost      account           of   the  opinion
delivered bv the Committee. It shall
 Inform the Committee of the manner in
which its opinion has been taken into
 account.
                  Annex I, introductory words, points (1) and 8a (new)
 Priority      list        of    ships   to be  Priority     list     of  ships   to b-3
 inspected as referred to in Article             inspected as referred to in Articla
 5, paragraph 2                                 5, paragraph 2
                                                These criteria are       not   listed in
                                                order of priority
 1. Ships visiting a port of a Member           1. Ships visiting a port of a Member
State for the first time. In their              State for the first time or after an
application of this criteria. Member            absence of 12 months or more.         In
States shall also take into account             their application of this criteria
 those inspections which have been              Member States shall also take into
carried out by members to the MOU.              account those inspections which have
 In the absence of appropriate data to          been carried out by members to the
implement this obligation, Member               MOU.    In the absence of appropriate
States shall rely upon the available            data to implement this obligation,
SIRENAC E data and inspect those                Member States shall rely upon the
ships which have not been registered            available SIRENAC E data and inspect
in the SIRENAC E database, after the            those ships which have not been
entry into force of that database the           registered in the SIRENAC E database,
 1st January 1993.                              after the entry into force of that
                                                database the 1st January 1993.
                                                8a. Chemical tankers,
                                                                                         o
 ---pagebreak---                       -Original text-                                        -Amended text-
                  Annex III, introductory words and paragraphs-1 (new) and 2
             (Non exhaustive list)                                         • :
"The following are examples of 'clear                       List of examples of 'clear grounds'
grounds'            for       a     more       detailed     for a more detailed inspection as
Inspection as referred to in Article                        referred to in Article 6(3). (non
6(3).                                                       exhaustive list)
                                                            -1. Ships within the meaning of Annex
                                                            I with the exception of points 1 and
2. A report or complaint by the                             2. A report or complaint by the
«aster, a crew member, or any person                        master, a crew member, or. any person
or organization with a legitimate                           or organization with a legitimate
interest in the safe operation of the                       interest in the safe operation of the
ship, shipboard living and working                          ship, shipboard living and working
 conditions or the prevention of                            conditions or the prevention of
pollution, unless the Member State                          pollution, unless the Member State
concerned             deems       the       report   or     concerned     deems    the      report   or
jcomplaint to be manifestly unfounded.                      complaint to be manifestly unfounded.
                                                            The identity of the person making the
                                                            report or complaint may not be
                                                            disclosed-to the master or owner of
                                                            the ship in guestion.             •
                                                       Annex VII '••
   Minimum criteria for surveyors as                          "Minimum criteria for surveyors as
   referred               to     in     Article      11,       referred     to     in     Article     11,
   paragraph 1                                                 paragraph 1
   1.         The          surveyor       has     to be        1.     The     surveyor      has   to   be
   authorised to carry out flag State                          authorised to carry out port State
   control by the competent authority                          control by the competent authority
   of the member State.                                        of the member State.
   2.         A minimum of two years of                        2.     A. EITHER :
   service as a flag State surveyor
   has to be completed.                                                - A minimum of one year of
                                                                       service as a flag State
                                                                       inspector dealing with survey
                                                                       and      certification           in
                                                                       accordance                     the
                                                                       Conventions       has     to     be
                                                                       completed.
    3.         Possession                      of      an       Delete
    a u t h o r i z a t i o n t o d e t a i n a ship in
    accordance with the a p p r o p r i a t e
    national legislation.
 ---pagebreak---           -Original text-                            -Amended text-
4.    Possession of:                          - Be in possession of:
a) a certificate of competency as             a)      a     certificate       of
master, cfr. STCW, Reg. II/2, or              competency         as      master,
                                              enabling that person to take
                                              command of a ship of 1600 GT
                                              or more, cfr. STCW, Reg.
                                              II/2, or
b) a certificate of competency as             b)      a     certificate       of
chief engineer, cfr. STCW, Reg.               competency as chief engineer
III/2, or                                     enabling that person to take
                                              U P that task on board a ship
                                              whose main power plant has a
                                              power equal or superior to
                                              3000 KW, cfr. STCW, Reg.
                                              III/2, or
c) a certificate of competency as      Delete
radio officer, cfr. STCW, Reg.
IV/1, or
d) having passed examination as a      c) having passed examination as a
naval   architect,        a mechanical naval     architect,      a    mechanical
engineer or an engineer related to     engineer or an engineer related to
the maritime fields and worked in      the maritime fields and worked in
that capacity for at least 5 years.    that capacity for at least 5 years.
5.    Thé surveyors mentioned under               The inspectors mentioned
4 a) -c) must have served at least           under a) and b) must have
as a Chief Officer, a Second                  served for a period of •;. not
Engineer (in some Member States               less than five years at sea
that position is referred to as              as officer in the deck- or
First Engineer) or a Radio Officer           engine-            department
respectively, for a period of not            respectively.
less than two years.
                                             B. OR :
                                             - hold a relevant university
                                             degree     or     an     equivalent
                                             t ra in ing, and
                                                  have been, trained and
                                             qualified at a school for
                                             ship safety inspectors, and
                                                  have served at least 2
                                             years                  flag   State
                                             inspector dealing with the
                                             survey and certification in
                                             accordance             with     the
                                             Conventions.
                                                                                 \l
 ---pagebreak---       —   Original text-——                      Amended text
6.    Ability to communicate orally 3.    Ability to communicate orally
and in writing in the English       and in writing with seafarers in
language.                  __       the language most commonly spoken
                                    at sea.
                                    4.    Appropriate knowledge of the
                                    provisions of the international
                                    conventions and of the relevant
                                    procedures on port State control.
                                    5.    Inspectors not fulfilling the
                                    above criteria are also accepted if
                                    they were employed by the competent
                                    authority of a Member State for
                                    port State control at the date of
                                    adoption of this Directive.
 ---pagebreak---                                                                                         BSNQ254-1475
                                                                  C0M(94) 501 final
                                                      DOCUMENTS
EN                                                                                               07
                                Catalogue number : CB-C0-94-525-EN-C
                                                             ISBN 92-77-82146-9
Office for Official Publications of the European Communities
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