Memorandum by ICS/ECSA/OCIMF/INTERTANKO
(EU 18)
EUROPEAN UNION COMPETENCE AND TRANSPORT
COMMISSION
PROPOSAL FOR
A DIRECTIVE
ON SHIP-SOURCE
POLLUTION AND
ON THE
INTRODUCTION OF
SANCTIONS, INCLUDING
CRIMINAL SANCTIONS,
FOR POLLUTING
OFFENCES
GENERAL COMMENTS
ICS, ECSA, OCIMF and INTERTANKO[28],
hereafter Industry, welcome the opportunity to comment on the
Commission proposal for a Directive on ship-source pollution and
on the introduction of sanctions, including criminal sanctions,
for polluting offences.
Industry supports the general principle that
persons responsible for illegal discharges should be subject to
appropriate sanctions, including criminal sanctions. However,
shipping being an international industry by nature, ship-source
pollution should be dealt with on an international basis rather
than on a regional level.
Industry draws attention to the fact that ship-source
pollution is already covered by international Conventions, notably
by the MARPOL 73/78 Convention and the UN Convention on the Law
of the Sea (UNCLOS). Industry welcomes the fact that the European
Commission underpins in the Explanatory Memorandum to the Directive
the importance of the international standards and rules for ship-source
pollution laid down in the MARPOL 73/78 and UNCLOS Conventions.
Industry supports that the international level is the preferable
one to ensure a uniform application and enforcement of these standards
and rules.
Though the general objective of the Directive
is supported, industry questions its value added, for the following
reasons:
— All EU Member States have ratified
the MARPOL 73/78 Convention as well as the UNCLOS Convention and
have, as a consequence, already incorporated in their national
law the international rules and standards for ship-source pollution
laid down in both conventions, as envisaged in Article 1 of the
Directive.
— Being contracting parties to the
MARPOL 73/78 and UNCLOS Conventions, Member States have a treaty
obligation to apply measures and sanctions in accordance with
the provisions of these international Conventions, as envisaged
in Article 7 of the Directive.
— An analysis of the applicable legislation
for ship-source pollution in Member States illustrates that almost
all Member States have already provided in their national law
for specific sanctions, including criminal sanctions, for illegal
ship-source pollution.
Industry, however, presupposes that the main
aim of the Directive is to compel Member States to apply more
stringent sanctions in case of ship-source pollution.
Nonetheless, industry wants to caution that
adoption of the Directive would create legal uncertainty since
the Directive will establish an additional regional legislative
layer on top of the applicable international and national legislation
with respect to ship-source pollution.
Moreover, some provisions of the Directive are
in direct conflict with the MARPOL 73/78 and UNCLOS Conventions
and enforcement of such provisions would be in violation of these
Conventions.
Additionally, adoption of the Directive will
also entail legal difficulties in relation to the law of Member
States, eg the obligation to penalise illegal discharges of polluting
substances committed by gross negligence. In common law countries,
like the UK for example, the term "gross negligence"
in criminal law is only used within the context of homicide for
certain manslaughter cases.
Since the Directive deals with criminal legislation,
it is of key importance that the provisions of the Directive are
clear and transparent and fully comply with existing applicable
legislation. It also needs to be fully in line with the fundamental
principles of Human Rights law.
Serious concern has been voiced as to whether
criminalisation of ships' crews and officers represents a fruitful
approach towards increased safety and environment protection.
There is undoubtedly a potential dilemma between pursuing the
line of criminalisation and that of fostering a culture of transparency
and of learning from mistakes and near misses, etc. It is a sad
state of affairs when officials in some parts of the world are
met by ship officers and crew members who will only communicate
through lawyers in the aftermath of a maritime incident because
they otherwise may jeopardise their rights and risk criminal sanctions.
In addition, Industry notes that the Commission
recognises that operational (deliberate) ship-source pollution
is still occurring due to a lack of adequate waste reception facilities
in EU ports. However, Industry is of the opinion that it would
be inappropriate to penalise operational discharges from ships,
while EU Member States themselves fail to provide for the availability
and the use of waste reception facilities in EU ports, in accordance
with Directive 2000/59 on Port Reception Facilities. Industry
supports the Commission's endeavours to enforce Directive 2000/59
and correct this situation.
Finally, Industry notes that the Commission's
competence to mandate the imposition of criminal sanctions has
been questioned, where the Commission recognizes that there is
"no explicit substantive Community competence in relation
to criminal matters per se".
MAJOR CONCERNS
1. Article 2.3 of the Directive provides
that illegal discharges shall also include discharges resulting
from damage to the ship or its equipment (ie accidental discharges).
This provision is in conflict with the MARPOL
73/78 Convention, which explicitly exempts accidental discharges
as criminal offences. According to their treaty obligation, Member
States could not apply in their national legislation criminal
sanctions to accidental discharges in accordance with the MARPOL
73/78 Convention if the discharge is connected with a ship flying
a flag of a third country being party to that Convention.
It is noted that this Directive sets out to
ensure uniform application and enforcement of MARPOL, however,
the Directive includes provisions which are, in fact, contradictory
to MARPOL.
An obligation to penalise accidental discharges
in accordance with the Directive would imply that the MARPOL 73/78
Convention is only a minimum convention and consists of minimum
requirements which need to be complemented by additional measures.
If Member States would be obliged to penalise accidental discharges,
they would be in breach of their existing treaty obligations to
respect the MARPOL 73/78 provisions. Such a breach could only
be avoided by denouncing that Convention. However, such a denouncement
would be in conflict with Article 7 of the Directive itself which
provides that Member States have to apply measures and sanctions
in accordance with the applicable international Conventions and
it would appear to run contrary to the aim of supporting and strengthening
MARPOL compliance.
Industry firmly believes that the MARPOL 73/78
Convention is a maximum convention providing for specific requirements
which do not need an additional regulation. Industry is of the
opinion that the fact that MARPOL explicitly exempts accidental
discharges as criminal offences, indicates that this is a specific
requirement.
Furthermore it is at least questionable whether
a European Union Member State could and should establish a criminal
jurisdiction with regard to offences committed on the high seas
if no damage is caused in the territorial sea or the EEZ of a
Member State. In those cases the jurisdiction is and should be
primarily with the flag state.
2. Article 6.2 of the Directive does not
provide that an obligation to hold any person liable for ship-source
pollution should be in accordance with Member States' legislation.
In most Member States (eg Denmark) objective conditions, like
causation and proximity, need to be fulfilled in addition to subjective
requirements in order to incur criminal liability. In some Member
States (eg Germany) therefore it will be very difficult to prove
the liability of a person for ship-source pollution, especially
if he has only a remote connection with the operation of the vessel
(eg a charterer or class).
Moreover, the lack of a direct reference to
public entities among the possible subjects of penal sanctions
is puzzling, particularly in view of the prominent place public
decision makers have had in the causation chain leading to pollution
incidents over the last decades.
3. Article 6.3 stipulates that (criminal)
sanctions for ship-source pollution should be effective, proportionate
and dissuasive. The Directive does not provide for a definition
of these notions, nor gives it any indication that it is already
enforced in Member States. Nor does the Directive provide that
a criminal sanction should be proportionate to the nature of the
criminal offence committed, which is a fundamental principle of
Human Rights law. However, Industry takes note that meanwhile
the "proposal for a Council Framework Decision to strengthen
the criminal law framework for the enforcement of the law against
ship-source pollution" has developed detailed rules for applying
penalties in respect of ship-source pollution. Industry will analyse
this additional proposal and comment on it as appropriate.
4. The principle of proportionality of criminal
sanctions also relates to the rights of the accused. The Directive
does not refer to such rights. However the rights of the accused
are particularly at stake in the case of seafarers. Seafarers,
being the only persons connected with the ship who are physically
present in the jurisdiction concerned, are increasingly victims
of prompt actions following a pollution incident. Recent cases
have demonstrated that eg the shipmaster may be put, and unduly
held, in jail as an immediate response to an incident even before
a proper investigation has taken place by the competent authorities.
The fact that the public opinion is pushing for immediate action
places an additional pressure on the fundamental rights of seafarers.
The fact that a Directive on criminal sanctions is introduced
without at the same time ensuring that appropriate due process
safeguards for seafarers are in place causes great concern in
industry.
5. Industry considers the range of sanctions
proposed by the Directive extreme and excessive. Attention is
also drawn to the fact that the notion "appropriate cases",
mentioned in Article 6.5, is unclear and confusing.
6. Article 6.6 provides that fines for illegal
ship-source pollution shall not be insurable. If an offence causing
damage is done intentionally there is no insurance available anyway.
In case of an accidental discharge, for example as a consequence
of a collision happening unintentionally, all financial consequences
are and should be insured including possible fines. It is to be
noted that shipowners through the CLC and HNSC mandatory insurance
requirements are compelled to carry insurance for such illegal
discharges.
In conclusion, Industry supports the general
objective to penalise illegal ship-source pollution, meaning discharges
that are in violation of the MARPOL and UNCLOS Conventions. However,
such regulation of illegal discharges should continue to be at
the international level. Industry is of the opinion that the Directive
does not produce any immediate value added and consists of some
unclear provisions and provisions which conflict with the applicable
international Conventions for ship-source pollution. Industry
also underlines that the Directive will create legal difficulties
with Member States' legislation, which provide already for sanctions,
including criminal sanctions, for ship-source pollution. As a
consequence, Industry fears that an adoption of the Directive
will create legal uncertainty, whereas it is of key importance
that criminal legislation is clear and transparent and fully complies
with existing applicable legislation, including Human Rights law.
Industry therefore prefers that the applicable international Conventions
and relevant national (criminal) sanctions should continue to
be the relevant legislation/sanctions for ship-source pollution.
28 The International Chamber of Shipping (ICS) and
the European Community Shipowners' Associations (ECSA) represent
more than 50% of the world's merchant tonnage. The Oil Companies
International Marine Forum (OCIMF) represents all the world's
major oil companies on marine safety and technical matters. The
International Association of Independent Tanker Owners (INTERTANKO)
represents some 70% of the world's independently owned tankers. Back
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