The entry info force of the EU"s Third Maritime Safety Package constitutes the largest ever package of legislative acts on maritime safety.
The entry info force of the EU"s Third Maritime Safety Package constitutes the largest ever package of legislative acts on maritime safety. Future focus is now on proper implementation. Strengthened maritime safety rules Following the European Parliament"s and Council"s respective approvals in March 2009 and publication in the EU"s Official Journal in May 2009, the Third Maritime Safety Package has now formally come into force in May/June 2009. The entry into force is the culmination of an intense and at times tough legislative negotiation process launched in November 2005 by the European Commission in accordance with a mandate given by the Council in December 2002 having as its main objective to further increase maritime safety and restore competitiveness of the maritime transport sector by benefitting only operators respecting safety standards and increasing pressure on owners of substandard vessels. The new rules will only have effect in the EU Member States once they have either been implemented into the domestic law of the Member States (directives) or once their agreed application date has passed (regulations).
The package, which was extended underway from seven legislative proposals to eight ? six directives and two regulations ? is the largest maritime legislative package ever in EU"s history and follows up on the previous so-called ERIKA I and II packages adopted following the 1999 ERIKA and 2002 PRESTIGE oil pollution disasters. These packages i.a. increased port state controls, banned single-hull oil tankers and established the European Maritime Safety Agency (EMSA). The new rules are aimed at strengthening and supplementing existing EU maritime safety legislation and to transpose major international instruments into EU law in order to prevent accidents and to put in place measures to be used in case accidents occur. This will be done by improving the quality of European flags and the rules relating to classification societies; by reviewing legislation on port state control and vessel traffic monitoring; by developing a harmonised framework for accident investigation; and by introducing rules on liability of carriers of passengers by sea in the event of accidents and on insurance of shipowners for maritime claims. The European Maritime Safety Agency (EMSA) will and should have a key role in this respect.
A balanced end result
BIMCO and ECSA have closely monitored the negotiations over the past years and have provided input to the process both vis-à-vis the Council, Member States and the European Parliament. BIMCO and ECSA generally support the intended goal of effectively improving the safety of ships and appropriate actions taken in the event of an accident. This will facilitate operations for quality shipping companies and operators and support the maritime transport sector as a whole. It is considered that the package will indeed contribute to its intended aims and that the final package represents a satisfactory outcome for the industry. Future focus is now on a proper and uniform implementation of these rules.
Key elements in the making
Some of the proposals contained in the package received a lot of criticism underway and were consequently softened in their final versions. This was primarily the case for the proposal for a directive on flag State obligations and the proposal for a directive on civil liability and financial guarantees for shipowners. The original flag State proposal, which many EU Member States resisted since it was seen as an attempt to transfer responsibility for ratifying maritime conventions to Brussels, has been scaled down considerably, while a political commitment was made by Member States at the October 2008 Transport Council meeting according to which they will ratify the 1996 Protocol to the 1976 Convention of the Limitation of Liability for Maritime Claims (1996 LLMC) as well as a number of other conventions no later than 1 January 2012, in order to ensure that all Member States are parties to the latest versions of the international conventions on liability and compensation.
This approach, which will contribute to ensuring a global regulatory framework for maritime transport, is strongly supported by BIMCO and ECSA. We also note with pleasure that the proposal for a Directive on Civil Liability and financial guarantees for shipowners has de facto been reduced to requiring ships operating in EU waters to carry insurance as prescribed in the 1996 LLMC, which has been ratified by a majority of EU Member States already. It is also positive to see that the burdensome requirement for a Member State Certificate of Financial Guarantee has been replaced by a more pragmatic business-related insurance certificate (e.g. from a P&I Club).
On the other hand, interesting elements have seen the day in the final package such as in relation to EU port state control requirements, which in future will also apply to vessels calling at offshore anchorages. Furthermore, EU Member States must designate a competent authority with the power to take independent decisions which, in the event of a rescue operation, will decide on the best course of action to prevent an incident, including which place of refuge should accommodate a ship in need of assistance. Hopefully, this will contribute positively towards avoiding disasters similar to the PRESTIGE.
The six directives and two regulations have the following main content: The Directive on the insurance of shipowners for maritime claims, which was previously known as the Directive on civil liability and financial guarantees for shipowners, has to be transposed by EU Member States into national law before 1 January 2012. The Directive imposes a mandatory insurance requirement for all EU vessels above 300 GT as well as non-EU flagged vessels above 300 GT calling at EU ports. Member States" administrations will control that such insurance is in place up to the limits of liability as established by the 1996 LLMC. This effectively means that the directive does not go further than reflecting the current insurance regime, which is positive. If the insurance certificate is not carried on board, the vessel may be detained or even expelled from the port and denied access to other Member States" ports until the shipowner notifies the certificate.
The Flag State Directive is aimed at improving the quality of European flags mainly by including a mandatory audit plan of national maritime administrations and the certification of their quality management systems. According to the new rules, which must be implemented at national level by 17 June 2011 at the latest, Member States must ensure that an IMO audit of their maritime administrations is carried out at least every 7th year and that the result of this audit is made public. In this sense, the EU goes further than the IMO where both the audit and the publication of its result are voluntary. In addition, Member States are required to control that ships flying their flags effectively respect IMO standards. In light of the above mentioned commitment made by Member States to ratify a number of maritime conventions, the effective consequence of the directive is merely a welcome promotion of international regulations in the IMO.