Select Committee on European Scrutiny Nineteenth Report


BUNKER OIL POLLUTION DAMAGE


(23026)

14825/01

COM(01) 675


Draft Council Decision authorising the Member States to sign and ratify in the interest of the European Community the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001.

Legal base:Articles 61(c), 67(1) and 300 EC; consultation; unanimity
Document originated:19 November 2001
Forwarded to the Council:3 December 2001
Deposited in Parliament:3 January 2002
Department:Transport, Local Government and the Regions
Basis of consideration:EM of 21 January 2002
Previous Committee Report:None
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


Background

  6.1  The International Maritime Organisation (IMO) adopted the International Convention on Civil Liability for Bunker Oil Pollution Damage (the Bunkers Convention) in 2001. The Bunkers Convention establishes a regime for compensation for persons suffering damage from oil spills when carried as fuel in ships' bunkers. The Convention introduces strict liability for damage and loss arising from actual and threatened pollution from ships' bunker oils.

  6.2  In addition to providing for recognition and enforcement of judgments, the Convention also contains rules allocating jurisdiction in the case of proceedings under the Convention. Article 9 of the Convention confers an exclusive jurisdiction on the courts for the place where the pollution damage occurred.

  6.3  Council Regulation 44/2001,[32] which converts into a Regulation most of the provisions of the 1968 Brussels Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, also contains rules allocating jurisdiction. As well as providing in Article 2 that a defendant may be sued in the courts of his domicile, Article 5(3) of that Regulation provides that 'in matters relating to tort, delict or quasi-delict' the defendant may be sued in the courts for the place where the harmful event occurred or may occur. The same language in the Brussels Convention has been interpreted by the Court of Justice of the European Communities to mean that the defendant may be sued, at the option of the claimant, either in the courts for the place where the damage occurred, or in the courts of the place of the event which gives rise to and is at the origin of the damage.[33]

  6.4  As Council Regulation 44/2001 applies generally to civil proceedings, and would apply to proceedings for compensation for damage caused by pollution, there is a potential conflict between it and the Bunkers Convention, which confines jurisdiction to the courts for the place where the pollution damage occurred.

The draft Decision

  6.5  The proposed draft Council Decision would address the potential conflict between the Council Regulation and the Bunkers Convention by authorising the Member States to sign and ratify the Bunkers Convention. This authorisation would be subject to the making by the Member States of a reservation to the Bunkers Convention to make clear that the provisions of the Council Regulation will continue to apply to the recognition and enforcement of judgments given by the courts of Member States. The reservation would also make clear that the rules contained in the Regulation and which relate to jurisdiction would also continue to apply in relations between the Member States where the pollution damage is caused within the territory of a Member State.[34]

  6.6  Article 1 authorises the Member States to sign and ratify the Bunkers Convention. Article 2 sets out the form of reservation to be made by Member States when signing, ratifying or otherwise expressing their consent to be bound by the Convention. The reservation is in these terms:

"The Member States of the European Community subject to Community rules in this area[35] shall apply Community rules on jurisdiction in their mutual relations insofar as the pollution damage is caused in a geographical area referred to in Article 2 of the Convention of a Member State of the European Community and the defendant is domiciled in a Member State of the European Community.

"Judgments referred to in Article 10.1 of the Convention shall, when given by a Court of a Member State of the European Community subject to Community rules in this area, be recognised and enforced in another Member State of the European Community according to such Community rules."

  6.7  The effect of the reservation would be to continue to apply the rules of jurisdiction of the Council Regulation 44/2001 in any case where the damage is caused within the territory (including the territorial sea and exclusive economic zone) of a Member State and the defendant is domiciled in a Member State. Judgments of the courts of Member States (even in respect of bunker oil pollution damage) would continue to be recognised and enforced in accordance with Council Regulation 44/2001.

The Government's view

  6.8  In his Explanatory Memorandum of 21 January, the Minister of State for Transport (the Rt Hon John Spellar) describes the policy implications of the proposal in these terms:

"The proposed Council Decision will allow Member States to become contracting parties to the Bunkers Convention without requiring amendment of Community law. The UK is working with Member States and the Commission to bring about ratification of the Bunkers Convention. This is consistent with the UK's strategy within Europe to implement the Bunkers Convention, along with a number of internationally agreed maritime liability Conventions, to prevent the problems that exist with the current haphazard approach of implementation of international instruments.

"The UK's position is that the draft Council Decision provides a practical solution to overcoming the inconsistency between Council Regulation 44/2001 and the Bunkers Convention. The UK is content with the proposed reservation in relation to the recognition and enforcement of judgments but has concerns about the proposed reservation in relation to jurisdiction because of the potential implications for third country contracting parties to the Bunkers Convention. The UK is of the view that in substance the jurisdiction regime in the Convention is better and consistent with the existing maritime liability conventions.

"The UK and some other Member States are concerned by the apparent requirement for simultaneous ratification of the Convention by Member States. Simultaneous ratification of the Bunkers Convention by EU Member States could severely delay its entry into force if those Member States who are ready to ratify the Convention had to wait for those Member States not in such a position. This could be potentially damaging for the Convention itself."

Conclusion

  6.9  We are grateful to the Minister for his clear and helpful Explanatory Memorandum. We agree that the terms of the proposed reservation do not raise any major problems as far as recognition and enforcement of judgments are concerned.

  6.10  We share the concern expressed by the Minister in relation to the reservation on jurisdiction. Whilst it may well be appropriate for there to be a choice of jurisdiction in respect of civil damage claims generally, this is not so appropriate for special liability regimes which have been concluded internationally, such as those for maritime pollution damage. In this regard, it is particularly regrettable that Council Regulation 44/2001 did not preserve the effect of Article 57 of the Brussels Convention, allowing Member States to become parties to conventions containing rules on jurisdiction on particular matters. Instead, the Regulation has adopted a dogmatic approach, which has produced the current problem.

  6.11  We note with concern the reference by the Minister to an 'apparent requirement' that all Member States should ratify the Bunkers Convention simultaneously. We agree that this requirement would be damaging to the Bunkers Convention, by postponing ratification until the least interested of the Member States is ready to do so. However, this requirement does not appear on the face of the proposed Decision and we should be grateful for an explanation by the Minister of why and by whom this requirement is said to arise.

  6.12  In the meantime, we shall hold the document under scrutiny.


32  OJ No L 12 of 16.12.2001, p.1 See also (21778) HC 23-xxix (1999-2000), paragraph 25 (15 November 2000). Back

33  Bier v. Mines de Potasse d'Alsace [1976] ECR 1735. Back

34  Including its territorial sea and exclusive economic zone. Back

35  i.e. not including Denmark which is not bound by Council Regulation 44/2001. Back


 
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