Select Committee on European Scrutiny Eighth Report


SAFETY OF SEABORNE OIL TRADE


(21943)
14595/00
COM(00) 802

Commission Communication on a second set of Community
measures on maritime safety following the sinking of the oil
tanker Erika.

(a)Draft Directive establishing a Community monitoring,
control and information system for maritime traffic;

(b) Draft Regulation on the establishment of a fund for the
compensation of oil pollution damage in European waters
and related measures;

(c) Draft Regulation establishing a European Maritime
Safety Agency.


Legal base: Articles 80(2) and 175(1)EC; co-decision; qualified majority voting
Document originated: 6 December 2000
Forwarded to the Council: 8 December 2000
Deposited in Parliament: 10 January 2001
Department: Environment, Transport and the Regions
Basis of consideration: EM of 18 January 2001
Previous Committee Report: None; but see (21146) 7245/00: HC 23-xviii (1999-2000), paragraph 5 (17 May 2000), HC 23-xxiii (1999-2000), paragraph 5 (28 June 2000) and HC 23-xxix (1999-2000), paragraph 6 (15 November 2000)
To be discussed in Council: April 2001
Committee's assessment: Politically important
Committee's decision: Not cleared; further information requested

Background

  8.1  Although the framework for international action on maritime safety is provided by the International Maritime Organisation (IMO), the Community has in more recent years taken action in this area where IMO standards were lacking or deemed inadequate. In particular, the Erika oil tanker disaster in December 1999 — when a 25 year old, Maltese registered, single hull oil tanker broke in two some 40 nautical miles off the southern tip of Brittany, resulting in more than 10,000 tonnes of heavy fuel oil polluting about 400 kilometres of coastline — prompted the European Parliament and the Council to call on the Commission to review the maritime safety regime for oil tankers.

  8.2  As a result, the Commission produced in March 2000 a Communication[26] on the safety of seaborne oil trade, which included three legislative proposals relating to:

    (1)  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 (port State control);

    (2)  common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations; and

    (3)  the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers.

    We have dealt with these at some length in our Reports of 17 May, 28 June and 15 November 2000, and, in the process, we cleared the first two proposals. We are clearing today the third proposal,[27] which, like the other two, has been amended by the Commission to reflect the opinion of the European Parliament.

  8.3  In its Communication, the Commission also suggested the need for a range of longer-term measures, including, for example:

    —  improving flag State performance of countries wishing to join the Community, by requiring them to align their maritime safety regulations with the relevant Community legislation and to apply it to vessels which fly their flag ("flag State control");

    —  ensuring efficient and uniform application of international safety rules through the creation of a European Maritime Safety Agency; and

    —  improving the existing regime for liability and compensation by increasing the limits under the international regime, and introducing a European compensation fund and rules making parties liable for damage if they cause or contribute to oil pollution damage, and deterrent sanctions on parties who cause or contribute to damage through gross negligence.

The current proposal

  8.4  The Commission has now put forward three further proposals.

—The establishment of a Community monitoring, control and information system for maritime traffic

  8.5  The Commission considers that the current Community instrument for recording information about ships carrying dangerous or polluting goods (Directive 93/75/EEC[28]) is inadequate for the purposes of identifying and closely monitoring ships, particularly those in transit off the coast of Europe. It is now proposing that (with the exception of recreational craft, those providing a non-commercial public service, fishing vessels less than 45 metres in length, and warships), the Directive should apply to vessels above 300 gross tonnes, and that:

    —  the identification of ships heading for European ports, and the monitoring of all ships in transit in areas of high traffic density or hazardous to shipping, should be improved, with ships in Community waters being required to carry transponders so that they can be monitored by the coastal authorities;

    —  the reporting requirements should be extended to other dangerous or polluting goods, and in particular to bunker fuels on board;

    —  the procedures relating to the transmission and use of data on dangerous or polluting goods carried by ships should be simplified and harmonised, possibly through the systematic use of electronic data interchange (EDI);

    —  ships calling at Community ports should be required to carry black boxes (voyage data recorders, or VDRs) to facilitate the investigation of accidents, and thereby improve accident prevention policy; it also proposes that VDRs should be made mandatory sooner and more extensively than is required by present IMO regulations;

    —  the development of common databases should be stepped up, and the stations responsible for managing information gathered under the Directive should be interconnected;

    —  there should be closer monitoring of ships posing a serious threat to maritime safety and the environment, and information about them circulated among Member States, to enable preventive action to be taken;

    —  Member States' powers, as coastal states, to intervene should be enhanced where there is an accidental hazard or threat of pollution off their coasts: in particular, they would be able to order the re-routing of a ship, to instruct the Master to stop a pollution risk, to put an assessment team on board, or to impose mandatory pilotage or towage; and

    —  Member States would be required to take measures to receive ships in distress in ports of refuge, and to prohibit them leaving ports in exceptional weather conditions involving a threat to safety or the environment.

  8.6  According to the Minister of State at the Department of the Environment, Transport and the Regions (Lord Macdonald), a "substantial amount" of the proposal is acceptable, both in terms of its objectives and the content of the provisions themselves. However, he says that the approach proposed is "overly prescriptive" and, in some places, out of step with developments in the relevant international fora. He identifies the key areas of concern as being:

    —  The need for the measure to be consistent with the provision in the United Nations Convention on the Law of the Sea (UNCLOS) that a coastal state must not impose requirements on foreign ships which in practice deny or impair the right of innocent passage. He adds that the UK has a significant underlying concern about the proliferation of mandatory reporting requirements, and believes that, where these are introduced, they must first be agreed internationally through IMO so as to preclude any conflict with UNCLOS.

    —  Whilst the UK supports the wider use of Automatic Identification Systems, it is concerned at the proposal to make this compulsory for fishing vessels over 45 metres in length.

    —  In principle, the UK would also support the wider installation of VDRs, but considers that the proposal is inconsistent with the International Convention on the Safety of Life at Sea (SOLAS). Also, IMO is thought to have concerns about the practicability of installing VDRs in existing ships, and intends to carry out a study into this. The UK therefore wishes to restrict mandatory installation to those vessels covered by SOLAS.

    —  The UK regards as "problematic" the proposal that a Member State should be able to prohibit from leaving its ports a ship posing a serious threat of pollution, and says that this is opposed by industry as being impractical, likely to interfere with the free flow of world trade, and inconsistent with seafaring practice, where the Master of the vessel takes such decisions.

— Compensation fund for oil pollution damage in European waters

  8.7  The Commission believes that the existing marine compensation regime under the 1992 Protocols to the Civil Liability Convention (CLC) and International Oil Pollution Compensation (IOPC) Fund Convention is deficient, in that the maximum compensation limit is not set at a sufficiently high level, and the regime fails either to discourage those involved in sea transport from deliberately taking risks which could put lives or the environment at risk, or to provide incentives for the supply and use of quality ships for transporting oil. It therefore proposes to address these issues partly through Community legislation, and partly through coordinated Community action in the international arena.

  8.8  On compensation limits, the Commission is aware that an increase under the relevant conventions has been negotiated (and is expected to come into force on 1 November 2003), but it still considers the limits to be inadequate. It has therefore proposed a Regulation to establish a Fund for Oil Pollution in European waters (the COPE Fund), which would provide top-up compensation for claimants, subject to a ceiling of 1,000 million euros. The Fund would be financed by European oil receivers, but would only be activated once a spill which exceeded, or threatened to exceed, the international limits had occurred in Community waters. Any decision to pay compensation through the Fund would be approved by the Commission, assisted by a committee of Member States's representatives. It also proposes that Member States should introduce financial penalties or other penal sanctions for grossly negligent behaviour by anyone involved in the transport of oil by sea.

  8.9  As regards international action, the Commission suggests that the Community should press for:

    —  the ship owner's liability to be unlimited, where it is proved that the pollution damage resulted from gross negligence on his part;

    —  compensation claims against the charterer, manager and operator of a ship to be allowed under the CLC;

    —  compensation for damage caused to the environment to be reviewed and widened, in the light of comparable compensation regimes established under Community law; and

    —  an advance on the regime for liability and compensation for hazardous and noxious substances, for which an international convention was established in 1996 but has not been ratified by any Member State.

  8.10  The Minister says that, although the UK does not agree that the new limit under the international regime (which will increase the amount available for any single tanker oil spill from £120 million to about £180 million) is inadequate, there are nevertheless "some interesting ideas" in the proposal. However, he does not believe that these should necessarily be applied as a regional solution, and in particular sees no reason to exclude states outside the Community joining a system with a "third tier". He also stresses the need to ensure that any such arrangement does not harm the existing international system, which he says has been used successfully in many pollution incidents. Similarly, the UK would want to guard against anything which might be misinterpreted by other IOPC Fund members as potentially damaging to their interests. He says that the UK supports an initiative by the IOPC Fund to consider possible reforms, and that all Community members should participate in this so as to bring about improvements which would be world-wide.

  8.11  The Minister then identifies aspects of the COPE Fund proposals which the UK would wish to amend. Thus:

    —  although the Commission is seeking to supervise the fund, the UK considers that it has no expertise, and does not accept that it should be given competence in matters relating to payment of compensation within individual Member States;

    —  it will be necessary to preclude the COPE Fund from seeking contributions for compensation where a claim has been rejected or ruled ineligible by the IOPC Fund;

    —  the COPE Fund would need to be given legal protection from action by claimants dissatisfied with decisions of the Fund Committee; and

    —  the proposed 1,000 million euros limit needs to be justified.

  8.12  The Minister also expresses some reservations about the proposed Community approach to amending the relevant international conventions. For example, he considers that the option for penalising those seeking to reduce costs by the use of sub-standard ships should be pursued separately, as attempts to tackle this through the reform of the existing regime is likely to delay progress on more pressing reforms. Also, whilst Community sanctions for gross negligence would be a useful deterrent, they should not have a damaging effect on the regime established under the CLC and IOPC Fund Conventions.

— European Maritime Safety Agency (EMSA)

  8.13  The Commission envisages such a body would provide it and the Member States with support in applying and monitoring compliance with existing international and Community law and in assessing the effectiveness of the regulations currently in place. It proposes that the new Agency should have a staff of about 55, with backgrounds in national maritime administrations and industry, and with the following main tasks:

    —  to provide technical assistance for amendments to Community law;

    —  to carry out on-the-spot investigations of the conditions under which Member States carry out port State control;

    —  to organise activities to harmonise the training of Member States' surveyors;

    —  to collect data and create data bases to enable a "black list" of shipping to be drawn up;

    —  to monitor shipping and manage traffic data;

    —  to assess and audit classification societies;

    —  to participate in investigations following accidents at sea; and

    —  to provide technical assistance to the applicant states.

However, the Commission stresses that the proposed agency is not intended to interfere with its own prerogatives nor with those of Community legislative instruments.

  8.14  The Minister says that the UK supports the aim of the proposed Agency, and recognises that the Commission currently faces a problem in obtaining adequate technical expertise. He also acknowledges that implementation of maritime safety and pollution legislation, and the monitoring of its effectiveness, is patchy. However, he is concerned that the Agency could lead to excessive centralisation, and that the Commission might use it to extend its competence in maritime affairs in areas best left to the Member States. He says that the UK has therefore taken a cautious line on this proposal, emphasizing that Member States must maintain their responsibilities and have a considerable presence in the control of the Agency.

Conclusion

  8.15  As with the first set of measures put forward by the Commission last year, this is an important package of proposals in an area of much public concern. We also note that, in broad terms, the Government supports what is proposed, but that it has a number of important reservations, particularly as regards the monitoring, control and information systems, on which we would like further information before taking a view of the proposals.

  8.16  First, the Minister says that measure needs to be consistent with the right of innocent passage for foreign vessels granted under the United Nations Convention on the Law of the Sea. However, there would appear to be a potential conflict between the exercise of that right and the ability of a state to take measures to protect itself from environmental damage caused by oil spills from vessels off its coast. We ask the Minister whether - and, if so, how - he believes these considerations can be reconciled. He has also suggested that agreement through the International Maritime Organisation would preclude such a conflict, though it is not immediately clear why this should be so, and again we would welcome clarification. Secondly, we ask the Minister to explain why the installation of voyage data recorders is thought to be inconsistent with the International Convention on the Safety of Life at Sea, what vessels are currently required by that Convention to install such equipment, and why it should be thought impracticable to install it in existing ships. Lastly, we would like to know why there should be concern at the proposal to use Automatic Identification Systems for fishing vessels over 45 metres in length.



26  (21146) 7245/00; see headnote to this paragraph. Back

27  Paragraph 12 below. Back

28  OJ No. L 247, 5.10.93, p.19. Back


 
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