The »Titanic« in 1912, the »Estonia« in 1994 and recently the »Costa Concordia«
– each of them a loss by sea – have caused the legislation to review existing
regulations.
The Commission of the European Union has informed the maritime community that a review of safety legislation for passenger ships[ds_preview] will be conducted over the next months. The »Costa Concordia« tragedy of Friday, 13 January 2012 recalls the »Titanic« disaster a hundred years ago. Once again lessons to be learned will include design and stability, crew training and safe operation, including evacuation procedures and compensation for damage. This initiative will be certainly part of a global review by the IMO and other maritime organisations as the basic rules of construction, management and operation are regulated by IMO conventions such as SOLAS. Nevertheless, the role of the EU is a complementary one of transposition, implementation and control of international legal instruments binding upon all member states of the EU. In the case of the IMO legislation for twin-hull tankers the EU proved to be the pacemaker. Moreover, the 27 member states of the EU represent a bargaining power when IMO rules are to be negotiated. Therefore this paper tries to recapitulate the relevant set of EU directives, regulations and decisions in the field of passenger ships which could be reviewed or amended. This field is part of a broad maritime legislation of the European Union and builds on a tradition of more than 30 years.
1. Safe Seas Policy
Within its transport policy the EU Commission submitted in 1993 a communication on »A Common Policy on Safe Seas« with an action programme and an appeal to member states to ratify outstanding IMO Conventions. In application of this initiative, the Council adopted directives (Richt-linien) and regulations (Verordnungen) which still form the core of the European maritime safety, although being amended permanently. As a rule they are published in all EU languages in the Official Journal (O. J.) of the European Union.
Directive 94/57 of 22 November 1994 on common rules and standards for ship inspection and classification societies, amended by Directive 97/58, and revised by Directive 2001/105 (see infra Erika III package), allows for a limited recognition of certain registers of shipping which do not conform to all standards. Greece, Malta and Poland profited from this clause for some time.
Directive 95/21 of 19 June 1995 initially implemented the Paris Memorandum of Understanding on Port State Control. It was amended several times and repealed by Directive 2009/16 of 25 May 2009 as part of the Erika III package.
Directive 96/98 of 20 December 1996 on type-testing and certification of marine equipment includes life saving equipment of passenger vessels. The latest version with a completely new Annex A is to be found in Directive 2010/68 and Directive 2011/75 of 2 September 2011.
Two directives 99/63 and 99/95 refer to the ILO Convention No. 180 on seafarers hours of work. They limit excessive working hours and fatigue on board and are monitored through port state control inspections.
Directive 2008/106 of 19 November 2008 on the minimum level of training of seafarers implements the STCW Convention of 1995 into EU law. In September 2011 the Commission proposed updated EU rules on training as the Manila Conference of June 2010 adopted a revised STCW Convention. In this context Dir. 2005/45 of 7 September 2005 on the mutual recognition of seafarers’ certificates has to be mentioned. It introduces a prevention of unlawful practices (fraud of certificates) and control functions for EMSA (European Agency for Maritime Safety).
2. Safety of passenger ships
Closely related to the »Safe Seas Policy« the safety of cruise ships, ferries and RoRo passenger vessels became a special focus of EU legislation after the loss of the »Estonia« in 1994. The density of passenger traffic
in the Baltic Sea, the English Channel and the Mediterranean Sea required additional measures, such as: Regulation 3051/95 of 8 December 1995 on the safety management of RoRo passenger vessels introduced an anticipated application of the 1993 ISM Code, amended by Reg. 179/98 of 23 January 1998 and finally repealed by Regulation 336/2006 of 15 February 2006 on the implementation of the International Safety Management Code (ISM code), within the Community expands the implementation of the ISM code for all ships and mobile drilling units operating under the authority of or from ports of member states. This includes the functioning of safety and evacuation systems of passenger vessels.
Directive 2009/45 on safety rules and standards for passenger ships of 6 May 2009 extends international legislation to passenger ships in domestic voyages regulating in great detail (five Annexes, 140 pages) construction, stability, fire protection and life-saving for new and existing ships built in steel, subdivided into four classes of ships, including high-speed craft and regardless of flag if operating in EU waters. Directive 2009/45 has been updated to include more recent SOLAS legislation by Directive 2010/36 of 1 June 2010. The new measures include emergency lighting to allow passengers to exit safely and the provision of lifejackets for larger individuals. However, Italy and twelve other member states have failed to react although required to do so by 29 June 2011. The EU Commission started infringement procedures against Italy and the United Kingdom most recently.
Directive 98/41 of 18 June 1998 on the registration of persons on board passenger ships helps search and rescue operators to be well informed about all passengers in cases of distress.
Directive 99/35 of 29 April 1999 on mandatory surveys for the safe operation of RoRo ferry and high speed passenger craft services in a regular service to and from EU ports implements corresponding IMO rules and resolutions.
Directive 2003/25 of 14 April 2003 on specific stability requirements for RoRo passenger ships applies to all RoRo ferries operating on regular service from a port of a member state regardless of their flag. It prescribes additional structural shipbuilding measures on top to international rules to improve the survivability of the ship in case of a collision. This instrument was the reaction to the loss of the »Estonia«.
The rights of passengers travelling by sea and inland waterways are the subject of Reg. 1177/2010 of 24 November 2010. This instrument introduces for the first time a minimum level of protection for disabled persons. Additionally, rights of passengers to information and compensation in the case of delay or cancellation of the journey are improved. The regulation will be applicable after 18 December 2012. A review may be conceivable in view of the »Costa Concordia« disaster.
Regulation 2099/2002 establishes a Committee on Safe Seas (COSS) and the prevention of pollution from ships of 5 November 2002 as a single committee to administer, review and update existing and future directives and regulations with the help of centralised (and simplified) committee procedures.
Under this legislation all ferry operators, regardless of their flag, must comply with strict safety rules before they can operate on schedule to or from EU ports. Many of these rules are prescribed by IMO, while others, such as the registration of passengers and the rights of disabled passengers, are a specific European standard. The EU member states are obliged to control and enforce these rules also on cruise ships. So far the safety legislation concentrated on technical aspects trying to fill safety gaps and to react to individual accidents. A strategic concept was introduced by the so-called Erika packages.
3. The »Erika« packages
The sinking of the substandard tankers »Erika« (1999) and »Prestige« (2002) which led to massive oil pollution of coast lines in France and Spain, encouraged the Commission to take more vigorous action, particularly regarding tankers, in order to shape a modern maritime safety regime. The initiative, known as the Erika I and Erika II packages, started in 2000. Four new directives and one regulation have been adopted under these two packages. Only one draft regulation to create an additional EU Fund for the Compensation of Oil Pollution Damages was withdrawn in view of the fact that IMO has been raising the limits of liability of the existing International Oil Pollution Compensation (IOPC) Fund. The Erika I package entered into force on 22 July 2003 and Erika II on 4 February 2004, three years after the first proposals were published.
3.1 Erika I Package
… consists of three legal instruments: Directive 2001/105 of 19 December 2001 on the control of national ship inspection and survey organisations (Classification Societies Directive) repealed Dir. 94/57. The new directive tightens the controls over recognised classification societies from EU member states and from third States. A harmonised liability is introduced. As a result, the flags of Malta and Greece had to improve their performance considerably, while the Hellenic Register was given only a limited recognition for three years expiring in 2008, unless the non-conformities were amended.
Directive 2001/106 of 19 December 2001 on port state control, repealing Dir. 95/21, intensifies the targeting and detention of high risk ships and the blacklisting procedure for ships which should be refused access to EU ports (see infra Erika III package).
Regulation 417/2002 of 18 February 2002 on the accelerated phasing-in of double hull tankers set progressive dates for the decommissioning of single-hulls in Europe with a final date in 2015. At that point in time (2002) the relevant IMO legislation under MARPOL allowed single-hulled tankers up to the year 2027. The gap in the two deadlines was widened even more when, as a reaction to the »Prestige« accident, the EU adopted Regulation 1726/2003 of 22 July 2003 which carries forward the final expiry date to 2010 instead of 2015. This EU legislation has to be mentioned here, though not applicable to passenger ships, because it triggered the IMO in 2003 to modify global tanker rules of MARPOL in order to integrate the new time limits which the EU had prescribed. Thus the EU served successfully as a pacemaker for IMO.
3.2 Erika II Package
… consists of only two measures: Directive 2002/59 of 27 June 2002 establishes a Community vessel traffic monitoring and information system (Traffic Monitoring Directive) introducing a set of instruments to monitor and control maritime transport off the coasts of member states. Key elements are the introduction of AIS and VDR, casualty investigation, notification of dangerous or polluting goods and the establishment of places of refuge. Unfortunately, the EU Commission had to start infringement procedures against several member states for not correctly implementing this directive within the time limits.
Regulation 1406/2002 of 27 June 2002 on the establishment of a EMSA constitutes the beginning of a European shipping administration which started working in January 2003. One of its main tasks is the supervision of national shipping administrations in member states.
3.3 Erika III package
Further to the two Erika packages and after lengthy debates, the Erika III package was published in the Official Journal no.
L 131 of 28 May 2009. The package includes six new directives – partly amending existing directives – and two new regulations. As usual, the directives have to be implemented by transformation (»transposition«) into national law in most cases within 18–24 months after the publication, i.e. until 17 June 2011 or the end of December 2011. Regulations are applicable 20 days after the publication in the Official Journal.
3.3.1 Compliance with flag state requirements
Directive 2009/21 on compliance with flag state requirementscodifies some minimum obligations for EU flag states based on applicable international rules and regulations, i.e. IMO conventions and UNCLOS. These duties refer to safety checks of vessels before granting the right to fly a European flag, including the transfer from one flag to another. The (voluntary) flag state auditing process which has been introduced by the IMO Code for the Implementation of Mandatory IMO Instruments is made compulsory for EU member states, however, only once every seven years. If in the future the IMO audit system will become obligatory for all IMO Members, the EU provision will be waived in order to prevent a parallel system existing. Thus the overall aim is to establish high-quality maritime administrations in all member states. Transposition of all other provisions into national legislation had to be done by 17 June 2011.
3.3.2 Port State Control –inspection of ships
Directive 2009/16 on Port State Control replaces previous PSC provisions and is designed to »drastically reduce substandard shipping in EU waters«. With its 16 Annexes it is a very complex statutory instrument. It largely follows, but is not identical with, the reorganised New Inspection Regime (NIR) of targeted controls which the port state regime under the Paris Memorandum of Understanding agreed upon. Dir. 2009/16 introduces a quality scheme for continuous »targeted«inspection of all ships including blacklisting. The normal period for implementation ended on 31 December 2010 so that the system should work since then. Unfortunately, in May 2011, the Commission had to request seven member states (Belgium, Cyprus, Estonia, France, Poland, Portugal and the United Kingdom) to comply with the new regime.
3.3.3 Vessel Traffic Monitoring and Information System
Directive 2009/17 represents a new version of the Traffic Monitoring Directive 2002/59 as it incorporates two additional safety measures: First, to harmonise the »places of refuge« regimes and second, to activate and strengthen the new SafeSeaNet and LRIT Data information system as a general platform for the exchange of safety data of ships navigating in EU waters and operated by EMSA. Member states should implement the new amendments within the usual period of 18 months, i.e. before 30 November 2010. In June 2011 nine member states had to be reminded to implement the new rules. A further revision or recast of the Traffic Monitoring Directive has been announced for 2012.
3.3.4 Common rules and standards for ship inspection and survey organisations
The amendment of the classification societies Directive 2001/106, which was part of the Erika I package, was done by issuing two different legal instruments:
• Dir. 2009/15 on common rules for the maritime administrations of the flag state• Reg. 391/2009 on common rules for ship inspection and survey organisations
Dir. 2009/15 establishes the legal relationship between the state and the relevant organisations. This refers to the authorisation of organisations, their liability for causing damage through wilful or negligent practice as well as periodical auditing. The mutual recognition of classification certificates in the EU is introduced. On the basis of reciprocity recognised organisations of third states may enjoy equal treatment. Implementation through national law was expected by 17 June 2011.
Reg. 391/2009, on the other hand, directly addresses the duties to be followed by the organisations themselves. The recognition of new organisations shall be granted by the Commission, while existing organisations shall retain their recognition. The cooperation of recognised organisations regarding the transfer of class, exchange of information and an independent quality assessment entity had to be set up by 17 June 2011. Consequently the member states lost some of their competencies in the process of licensing of classification societies. The Commission gets more power of inspection including generous access rights to ships and ship files – and consequently more responsibilities.
3.3.5 Accident investigation
The new Directive 2009/18 on fundamental principles governing the investigation of accidents in the maritime transport sector introduces guidelines for a common methodology of investigation and reliable exchange of data. The aim is to improve safety by a common framework in order to harmonise the effectiveness, objectivity (independence!) and transparency of expeditious investigations of maritime casualties. The preservation of all evidence is a duty and the findings in the form of standardised reports have to be made public within twelve months. Safety recommendations may be issued by the state or by the Commission. The transposition clause left time until 17 June 2011 for implementation by national legislation. It is hoped that all member states – including Italy – have independent investigative bodies in place.
3.3.6 Liability of carriers of passengers
Regulation 392/2009 on the liability of carriers of passengers by sea in the event of accidents aims at the uniform implementation of the (new) IMO Athens Convention of 2002 (PAL Convention and Protocol 2002) for international and domestic voyages. The original version of the PAL Convention of 1974 relating to the carriage of passengers and their luggage by sea, in force for 34 states including nine EU states, established a fault-based liability regime for international sea transport, in which the carrier can limit his liability up to 53,000 € per passenger in case of death or personal injury.
The PAL Protocol 2002, not yet in force, will improve this regime considerably. It introduces risk liability (Gefährdungshaftung) and fixes a ceiling of 250,000 SDR in the case of death or personal injury caused by shipwreck or collision. Personal luggage is treated in a similar way. The carrier has to be adequately insured and the claimant has the right of direct action against the insurance company. In cases of fault the liability of the carrier shall be limited to 400,000 SDR. Under the PAL Protocol 2002 the carrier is not liable if he proves that the incident resulted from an act of war, hostilities etc. or was »wholly caused (…) by a third party«. Therefore there is no liability in the case of terrorism, unless e.g. contributory negligence of the personnel of the carrier is involved.
While only nine EU states adhere to the original PAL Convention of 1974, Latvia is the only EU state together with a few other seafaring states that have yet ratified the Protocol of 2002. However, the protocol offers an accession clause under its articles 17 (2)(b) and 19 for regional organisations such as the EU, if states have transferred competence over certain matters governed by the protocol to those organisations. Through council decision the EU recently acceded to the PAL Protocol of 2002, together with an appeal to member states for ratification.
Against this background Reg. 392/2009 implements the PAL Protocol 2002 and the accompanying IMO guidelines as compulsory law for all member states as of 31 December 2012, irrespective of the question whether the states have ratified that protocol. But the scope of application of Reg. 392/2009 is wider than the PAL Protocol in that it comprises all domestic transport after 2018.
Other than the PAL Convention passengers with reduced mobility (handicapped) enjoy special rights and all passengers shall be informed regarding their rights. All rules apply irrespective of the flag of the vessel and also on inland waterways. Under Article 6 this regulation introduces an advance payment of no less than 21,000 € within 15 days of the incident.
Thus, passengers in the European Union will profit from these modernised carrier responsibility and insurance ceilings. Costs for ship owners and passengers will rise and generate problems for peripheral maritime regions and islands. Moreover, insurance coverage for the cumulative amount of compensation in the case of several thousands of sacrifices may become a burden for the cruise industry.
3.3.7 Insurance of ship owners for maritime claims
Finally, Directive 2009/20 on the insurance of shipowners for maritime claims addresses the obligation of ship owners as regards their insurance. Member states are reminded that ships under their flag or ships entering their ports shall have minimum insurance equal to the maximum amount under the 1996 LLMC (Limitation of Liability for Maritime Claims) Convention, which has been ratified so far only by 44 states covering 45 % of world tonnage. Port State controls under Dir. 2009/16, as described above, will include verification of insurance certificates. A missing certificate »may« lead to an expulsion order. Implementation of this directive has to be terminated before 1 January 2012.
It should be recalled that the original draft of this directive was more radical. It tried to open the way of putting an end to the current system which enables ship owners to limit their responsibility to a given ceiling. In the introductory communication of the Erika III package the Commission stressed that the pre-existing liability regime represented a privilege for the shipping industry, unknown to other industries, which leads to an erosion of responsibility. Given the enormous volume of the »Costa Concordia« loss it may be anticipated that the Commission comes up again with massive aggravation of insurance standards and a »change of paradigm«. Likewise the PAL Convention and Protocol 2002 will receive a boost.
4. Outlook
Judging on the European maritime safety legislation one may say that some instruments are more or less a logical consequence of previous international IMO and UN law and therefore justified. The functions and responsibilities of the EU Commission and of EMSA will grow. At the same time the sensible »front line« between IMO and EU becomes visible again, as the Commission intensifies its role as pacemaker and competitor for IMO. However, not the EU but the IMO has to play the lead role for these activities which need a global and uniform playing field.
A weak point is that most EU instruments concentrate on a bureaucratic administrative approach in terms of additional control mechanisms, on data banks and paper work, instead of addressing the human element while all experts agree that some 80 % of accidents at sea are due to human failure. Generally speaking technical aspects are overestimated, while social aspects are largely ignored.
It would be more than appropriate for the EU to improve the human element, i. e. subjects like qualification of captains, officers and crew, training and refresher courses, labour law and working conditions. Moreover, there is a reason to criticize the carelessness of member states in timely implementing EU law into their national law and to supervise it closely. The large number of infringement procedures against dilatory member states remains to be a shame.
Dr. Uwe K. Jenisch
