3 June 2003
Mr Fotis Karamitsos
Maritime Safety Unit
DG for Energy and Transport
European Commission
28 Rue Demot
Office 2/84
1000 Brussels
Belgium
Dear Sir
Proposal for a Directive of the European Parliament and of
the Council on Ship-source Pollution and on the introduction of sanctions,
including criminal sanctions, for pollution offences
I write in my capacity as Secretary of the British Maritime
Law Association. Members of the
Association include The Association of Average Adjusters, the British Insurance
Brokers Association, the British Ports Association, the Chamber of Shipping,
the Institute of London Underwriters, Lloyd's Underwriters Association,
Protection and Indemnity Associations, University Law Departments, Loss
Adjusters and Solicitors and Barristers specialising in maritime law. The British Maritime Law Association is
affiliated to the Comite Maritime International (CMI).
The Executive Committee of the BMLA has considered the draft
Directive and I am instructed to make the following comments.
The principal concern of the BMLA is to ensure that nothing
is done which may conflict with or otherwise effect the existing international
liability and compensation regime for pollution of the marine environment
embodied in the Civil Liability and Fund Conventions of 1992 (plus the
substantial increases in the CLC and Fund introduced by resolution of the IMO
Legal Committee at its 82nd Session in October 2000) and the Supplementary Fund
Convention. These instruments have taken
many years to develop and remain under constant review to ensure that the
limits of liability and other aspects do not fall out of date. Quite apart from the recently adopted
Supplementary Fund it has been noted that the IOPC Fund, through an
Inter-Sessional Working Group, is currently reviewing all aspects of the
liability and compensation regime established by the various instruments
referred to above. Not only have these
instruments come into force (currently with the exception of the Supplementary
Fund Protocol) but they have been almost universally adopted by the maritime
nations.
These instruments have proved to be generally effective in
practice ensuring that claimants, be they private or public, receive adequate
and prompt compensation following an oil pollution incident. It is recognised that in one or two recent
incidents the total amount of claims submitted (but so far not all assessed)
exceed the maximum compensation available under these instruments resulting in
the need to pro-rate substantiated claims.
It is primarily for this reason that the Supplementary Fund Protocol has
been recently adopted and the IOPC Fund Working Group is studying other ways in
which the compensation package, as a whole, may be improved.
In the view of this Association the international oil
pollution compensation and liability regime has demonstrated its flexibility not
only in the handling of compensation claims but also in its willingness to
address problems which arise in the interpretation and application of the
Conventions. It is the view of this
Association that pollution of the marine environment should continue to be
regulated within the existing framework.
The Association considers that the proposed Directive on
Ship source pollution should be viewed against this background.
The essence of the proposed Directive is to criminalise ship
source pollution where the discharge is "committed intentionally or by
gross negligence". Whilst a
discharge of oil intentionally caused may have the necessary criminal attribute
of mens rea there can be no justification for imposing criminal sanctions where
the pollution results from negligence, whether gross or otherwise. Negligence is generally a civil liability
concept and should play no part in the criminal law.
It is worth noting that the whole oil pollution liability
and compensation regime is carefully structured so that there is strict
liability for pollution (with very limited defences) and compensation flows
automatically and is paid promptly. Any
new Directive which re-introduces arguments about causation and negligence
would run counter to the strict liability basis of the existing civil liability
regime.
As the Explanatory Memorandum recognises, deliberate
discharges of certain waste and cargo are already illegal in most countries
under Marpol 73/78. It would be
infinitely preferable for the existing international agreements relating to
deliberate discharges to be enforced (even on a regional basis) rather than
seeking to create new offences which would apply on a regional basis only. In view of this Association, the Commission
would contribute more to its desire for pollution free seas if it concentrated
its efforts on encouraging EU states to apply current international agreements.
The Explanatory Memorandum also suggests that the current
international civil liability regime is in no sense dissuasive. The BMLA disputes that assertion. However well insured, every shipowner
involved in a pollution incident knows that his uninsured losses and his loss
of reputation will have a serious impact on his business. The imposition of criminal sanctions would not
add to the deterrent effect and, since imprisonment seems to be the
contemplated sanction for the offence of pollution, it would simply encourage
the creation of more elaborate and opaque corporate structures so that no
individual could be identified.
The Explanatory Memorandum draws attention to the fact that
under the existing civil liability regime liability is channelled towards the
registered owner of the ship and it is the registered owner who is obliged to
maintain insurance or other financial security.
This so-called “channelling” was designed to simplify the handling of
claims both from the point of view of the owner and of the claimant. It is far preferable that the claimant should
have one clearly identifiable target who is known to be adequately
insured. The suggestion in the
Explanatory Memorandum that the Claimant should have the option of seeking
compensation from the Charterer, Manager and Operator of the ship is
counter-productive and is strongly opposed for these reasons.
The Explanatory Memorandum also suggests that the rights of
the shipowner (and his insurers) to limit their liability to the levels stated
in the CLC should be lost if the pollution damage resulted from gross
negligence. The Commission should
remember that before the oil pollution compensation conventions were introduced
the shipowner could limit under the general law of limitation provided that he
could establish that he had not been at fault or privy to the cause of the
accident. Subsequent to the 1969 CLC the
general law of limitation was changed by the 1976 LLMC. Under that Convention, in exchange for a
substantial increase in limits, the shipowner would only forfeit his right to
limit if the loss resulted from the personal act or omission of the shipowner
“committed with the intent to cause such loss, or recklessly and with knowledge
that such loss would probably result”.
The 1969 CLC reflected the general law on limitation of liability and
provided that the owner could not avail himself of the CLC limits if the
incident occurred as a result of his actual fault or privity. With the change in the general limitation law
introduced by the 1976 LLMC, it was thought appropriate to up-date the
limitation provisions in the CLC Convention and by Article 4 of the 1992
Protocol to the Civil Liability Convention the right to limit is now only lost
if the damage resulted from the personal act or omission of the owner
“committed with the intent to cause such damage, or recklessly and with
knowledge that such damage would probably result”.
It follows from this that the limitation provisions in the
Civil Liability Convention now match the underlying law of limitation (as
contained in the 1976 LLMC) insofar as the loss of the right to limit is
concerned.
Any change in the test to determine the right to limit in
respect of oil pollution claims would thus run counter to the general law of
limitation as contained in the LLMC 1976 and as endorsed by Protocol of 1996.
The Association would strongly oppose any changes in the underlying
limitation provisions of the CLC and Fund Conventions.
Finally, the Association urges the Commission to continue to
co-operate with IMO and other international bodies by enforce existing
Conventions and Regulations and it urges the Commission to resist the
temptation to introduce regulations on a regional basis which run counter to
exhaustively negotiated and well respected existing agreements.
Yours faithfully
P. Griggs
Secretary/Treasurer
