23.12.2006   

EN

Official Journal of the European Union

C 318/195

1.1

Overall, the EESC welcomes the Third Maritime Safety Package, which is a further constructive and proactive step towards improving maritime safety by preventing maritime accidents and pollution and better controlling their effects. The Committee broadly supports the flag state performance proposal, the port state control proposal, the oversight through audits of the classification societies, the accident investigations and the vessel traffic monitoring (VTM, ships in distress and areas of refuge) proposal. They broadly reflect its positions in its opinions on the Erika I and II packages. These proposals improve various aspects of the transport chain and demonstrate the EU's commitment to quality shipping.

1.2

The Committee has some concerns about the proposals regarding passenger ship liability based on the IMO (International Maritime Organisation) Athens Convention and civil liability. In particular, the proposal on civil liability merits further examination.

1.3

The EESC considers the recognition of the role of the IMO to be a positive element of the package. This is entirely in line with its past opinions (since 1993) on maritime safety and pollution prevention in which the need for an international legal regime on maritime safety and pollution prevention has been acknowledged.

1.4

The EESC recommends that the Commission take all necessary steps to ensure that the existing IMO Conventions are ratified promptly by all EU Member States, particularly the 1996 Convention on Limitation of Liability for Marine Claims (LLMC). This will have a direct added value for maritime safety, the global environment, liability and compensation for pollution damage worldwide.

1.5

The EESC suggests that the Commission should exclude inland navigation from its proposal on passenger liability in inland waterways and issue a specific proposal under the NAIADES programme.

1.6

The EESC reiterates its earlier calls in response to the Erika I and II packages for another maritime safety package dealing more specifically with the human element and deplores the fact that the human element has not been sufficiently addressed at EU level in the Third Maritime Safety Package. It proposes that the maritime labour code convention adopted by the International Labour Conference (Maritime Session) of the ILO in 2006, which Member States should ratify with a view to harmonising basic European and international rules, should serve as the basis for framing appropriate provisions. The ‘recommendations’ section (soft law) of the code should also be duly taken on board in order to draw up better European standards.

1.7

The EESC notes that better lawmaking goes hand in hand with better enforcement. Hence, it draws attention to the need for better implementation measures. It also urges all relevant stakeholders to be vigilant in the enforcement of the new maritime safety package.

1.8

The EESC draws attention to the need to increase resources allotted to port state control by the Member States; in addition, it calls for an increase in the number of port inspectors to ensure the effective implementation of various aspects of the maritime safety packages. It invites the Commission, in collaboration with Member States, to provide the necessary means to attract and recruit suitably skilled new entrants to the inspectors' profession.

2.1

In the aftermath of the Erika (1999) and Prestige (2002) accidents off the coasts of France and Spain, which highlighted the vulnerability of Europe's coastlines, the EU acted immediately in order to set up a defensive mechanism to protect its coasts against the risks of maritime accidents and pollution and improve the safety conditions of the vessels calling at its ports. Two legislative packages were adopted: Erika I (1) (2001) and Erika II (2) (2002) consisting of six legal instruments (three Directives and three Regulations). On 23 November 2005 the Commission published its Third Maritime Safety Package, which is intended to strengthen European maritime safety rules and to improve the effectiveness of existing measures.

3.1

Following the enlargement of the EU, the European fleet now accounts for 25 % of the world fleet. The European Commission's aim is to make it a model fleet, providing a European maritime service which is safe, competitive and environmentally friendly.

3.2

The Third Maritime Safety Package will make it possible to better guarantee European maritime transport safety. It proposes a more pro-active policy aimed at restoring conditions for healthy and sustainable competition for operators who comply with international rules. The package contains seven proposals that take account of the experience acquired in implementing the Community legislation on maritime safety and pollution prevention and are structured around two major courses of action:

3.3.1

The objective of the proposal is to ensure that Member States effectively monitor compliance with the international standards recommended by the International Maritime Organisation (IMO) by ships flying their flags and having for this purpose a maritime administration operating in accordance with high-quality criteria. This proposal seeks to ensure that Member States meet their international obligations in an effective and coordinated manner.

3.4.1

The proposal is intended to improve the quality of the work of recognised classification societies (which inspect and certify ships), to reform the system of sanctions against defaulting societies by introducing more gradual and proportionate financial penalties and to increase the powers of the Commission so as to enable inspectors to access ships of any flag. The quality of the work carried out by classification societies should be improved by establishing a quality-control system.

3.5.1

This proposal introduces the principle of a far-reaching reform aimed at replacing the current system (Paris Memorandum of Understanding — MOU) under which each Member State must inspect at least 25 % of ships entering its ports with a Community target of inspecting 100 % of ships, bearing in mind the need to reduce the burden of carrying out inspections on high-quality ships.

3.5.2

Other measures will be taken to improve the effectiveness and quality of checks on ships in European ports (including the working conditions of the crews). The new inspection regime will focus on risky ships. Stricter actions will be taken against substandard ships by strengthening the arrangements for banning them in Community waters.

3.6.1

The proposed objectives include improving the legal framework on places of refuge for ships in distress. The identification of all potential places of refuge should be speeded up, which would improve the efficiency of decision-making in the event of maritime accidents. The Commission is also proposing to equip all fishing vessels with automatic identification systems (AIS) in order to reduce the risk of collisions with large ships.

3.6.2

The extension of the SafeSeaNet data-exchange network to the whole of the EU will enable monitoring of movements of ships and their cargoes. Ships will be notified about icing dangers in certain maritime areas.

3.7.1

The quality of maritime safety standards depends on the ability to analyse the causes of accidents and learn from them. The purpose of this proposal is to establish a harmonised European framework for carrying out investigations following accidents. The investigations will be carried out by independent specialist bodies with appropriate authorisations for the task. The proposal provides clear Community guidelines and encourages cooperation for technical investigations of maritime accidents.

3.8.1

The purpose of the proposal is to incorporate into Community law the provisions of the 2002 Athens Convention (applicable only to international journeys and not yet in force) and to extend the protection introduced by this Convention to cover all passengers travelling on ships in the EU in domestic maritime traffic and inland waterway traffic.

3.9.1

The aim is to make shipowners act more responsibly, and to oblige them to take out an insurance policy or other financial security for third-party damage and which also covers the costs of repatriating seafarers in the event of abandonment.

3.9.2

As a first step, Member States will have to ratify all relevant IMO Conventions, including the 1996 LLMC. The text of the 1996 LLMC will be incorporated into Community law to ensure full and uniform application of this convention all over the EU. As a second step, the Commission will seek a mandate for negotiation within IMO to review the 1996 LLMC Protocol with the aim of reviewing the level at which shipowners lose their right to limit their liability. Ships flying the flag of a state that is not party to the 1996 LLMC will be subject to a more severe liability regime in the event of gross negligence.

3.9.3

Member States have to ensure that owners of ships sailing in Community waters, irrespective of flag, have a financial security for civil liability up to double the ceiling laid down in the 1996 LLMC. Shipowners must also have a financial security for abandonment of seafarers. Financial security must be evidenced on the basis of certificates, which must be carried onboard the ship.

4.1.1

The EESC fully supports this proposal as it means that Member States will have to fulfil their responsibilities properly and comply with IMO instruments, including the IMO flag state implementation code and the IMO flag state Audit Scheme.

4.1.2

The EESC wonders whether Article 9 ‘Flag State Investigation’ is necessary as it deals with accident investigation, which is amply covered by the fifth proposed instrument in the Third Maritime Safety Package. Nevertheless, it would reinforce the need for investigations and strengthen the requirement and obligation for Member States to provide adequate resources to this end.

4.1.3

The Committee recognises that Article 10 ‘Safe manning’ seeks to ensure that ships flying the flag of a Member State are adequately manned, in accordance with IMO Assembly Resolution A.890 (21) on Principles of safe manning. However, the EESC is convinced that a level playing field between flag States is essential and that the proposal that the Commission produce a report as referred to in Article 15 ‘Cooperation agreements’ should be implemented as soon as possible.

4.2.1

Classification societies are increasingly responsible and accountable to administrations of flag States for the safety of shipping and the environment to a high degree. Therefore, the EESC endorses the proposed measures intended to improve the quality of their work on behalf of Member States and to strengthen checks and penalties, introducing a system of incremental sanctions which will be more effective than the current arrangement.

4.2.2

But as these tasks are currently intertwined, the EESC believes that a greater distinction should be made between statutory and classification tasks, for example by assigning them to different inspectors in the same recognised organisation or to two different organisations. There would seem to be a need for an interim period of ongoing promotion of best practices through negotiations between the Member States and the societies concerned, and between the classification societies, in order to draw up a compendium of good practice for the purpose of avoiding conflicts of interest.

4.2.3

Article 19(3) requires Member States to cooperate with the classification societies in the development of their rules and/or regulations. Notwithstanding the provisions of Articles 16 and 17, the EESC believes that a reciprocal obligation should be placed upon the classification societies.

4.2.4

The EESC welcomes the provisions of Article 20 concerning the requirement for recognised organisations to consult with each other and to cooperate with each other with a view to achieving equivalence and consistency in the application of international conventions.

4.3.1

The EESC agrees with the recasting of the Directive in order to improve clarity and to reinforce and improve the effectiveness of port State control. It notes that over the last six years the number of ships covered by the mandatory detailed inspections has risen from 700 to 4 000.

4.3.2

The EESC supports the intention to reward quality ships with fewer inspections, to focus inspection efforts on high-risk ships and to deter the operation of sub-standard ships by denying access to EU ports. Since the new system will be based on the principles incorporated in Annex III, the recasting of the Directive offers the unique opportunity to introduce and apply the new system without delay.

4.3.3

The EESC notes with satisfaction that the role of pilots in the early detection of possible defects will be stepped up, but is concerned that the confusion of commercial functions with inspection functions will not make the work easy for pilots, nor for deep-sea pilots who depend on a company providing non-compulsory pilotage services.

4.3.4

It also welcomes the inclusion of inspection of the working conditions onboard, since the human factor often plays an important role in maritime accidents. Inspection of seamen's onboard living and working conditions and their qualifications requires an increase in the number of inspectors with specific skills in this area; it would be difficult for a single inspector, often working to very short deadlines, to carry out an in-depth dual inspection embracing both technical and social aspects.

4.3.5

The Committee further welcomes the requirement of Article 20 for the Commission to establish each year a black-list showing the performance of ship operators and companies.

4.4.1

It is gratifying that the EESC's repeated earlier calls for the establishment of a system for ships in distress have been finally heard (Article 20). Therefore, the EESC supports the proposal to strengthen the Directive by reinforcing and harmonising the requirements on ‘places of refuge’ (3). A certificate of entry in a P & I (protection and indemnity) Club should be sufficient financial guarantee for admission to a place of refuge. In this connection, absence of a certificate should not be an excuse to deny admission of a ship to a place of refuge.

4.4.2

The Committee feels that the independent competent authority responsible for handling accidents and directing ships in distress towards a place of refuge should concentrate the necessary powers in its hands, independently of the obligations to consult the parties concerned, and be able to take decisions and bear all essential responsibilities, including those relating to the financial consequences of decisions taken as a matter of urgency.

4.4.3

The EESC notes that fishing continues to be one of the most vulnerable sectors of activity and welcomes the compulsory fitting of AIS on board fishing vessels. Small and medium-sized companies, including those in the coastal fisheries sector, should be allowed to benefit from aid or facilitations in order to equip themselves (4).

4.4.4

It also supports the provisions enabling coastal states to take appropriate measures to limit possible dangers to shipping of ice formation in certain maritime areas in the North of the EU. This is a particularly important issue given the increased risks arising from the greater volumes of oil carried in the Baltic Sea area. However, to avoid possible problems with the ice rules laid down by some classification societies it would be helpful to have States standardise their own ice rules.

4.4.5

The EESC agrees that the implementation of the information exchange system SafeSeaNet will contribute greatly to enhancing maritime safety in EU waters.

4.5.1

The EESC supports this proposal as it is only through independent technical investigations of accidents that appropriate action can be taken to reduce the chances of reoccurrence. In addition, the Committee supports the establishment of independent specialist bodies to carry out such investigations as well as the clear distinction from investigation for punitive reasons.

4.5.2

The EESC welcomes the provision of Article 7 which allows for the conduct of joint safety investigations.

4.5.3

The EESC feels that the provision of Article 9 on the non-disclosure of records for purposes other than the safety investigation is essential. The provision allowing a judicial authority to permit disclosure is a source for concern. Consequently, the Committee believes that it would be helpful if those giving evidence to such technical accident investigations were granted immunity, even anonymity, from their testimony. As in the case of the airline industry, the participation in the investigation process of representatives of the shipping industry and representatives of organised civil society in the affected areas would be valuable in order to draw all possible lessons with a view to better prevention in the future and for the sake of transparency. The Commission also wisely provides for feedback in order to accumulate experience.

4.6.1

The EESC supports the basic aim of this proposal to enable all passengers to benefit, at EU level, from the same protection regime in the event of an accident. The essential feature of the regime are modernised carrier liability rules, a mandatory insurance system and a satisfactory compensation ceiling. These protection rules also apply to all passengers who have purchased their tickets in Europe, even if they travel outside Community waters and even onboard a ship flying a third-country flag.

4.6.2

The EESC recalls that under a draft Decision (2003) Member States were invited to ratify the Athens Protocol before the end of 2005. Unfortunately, the ratification process was blocked. The current proposal is a means whereby the provisions of the Athens Protocol become uniformly applicable throughout the EU. Incorporating the Athens Protocol into EC law will not prevent Member States from ratifying the Protocol in order to make sure that it will ultimately be applied at an international level.

4.6.3

The EESC notes two important issues that remain to be resolved regarding the proposed ratification by the Member States of the IMO and entry into force of the 2002 Athens Protocol. First, the war/terrorism issue: the EESC draws attention to the IMO resolution enabling states to enter a reservation in their ratification in order to issue the requested insurance certificates with the exclusion of war/terrorism issues. Second, the limitation amount: the International Group of P & I Clubs has stated that it is able to cover the highest limits laid down by the Protocol, provided a solution is found to the problem of terrorism. Alternative proposals have been placed on the table for consideration and workable solutions could be achieved at international and/or European level. The current reform of the Community solidarity fund (Regulation 2012/2002), which should come into force in 2007, could provide emergency aid in the case of natural disasters, including disasters resulting from acts of terrorism. But this could not be a substitute for a negotiated solution to the issue of insurance cover for damage caused by a possible terrorist act, which the Committee believes is urgently needed.

4.6.4

The EESC recognises the merits of the aim to apply identical compensation for passengers on board ships operating on intra-Community and international routes. However, serious difficulties might result for some smaller companies or in connection with the provision of certain services.

4.6.5

Regarding domestic passenger services, the EESC proposes a phasing in (transitional) period in the application of this proposal so as to minimise any adverse impact on short sea passenger services. Otherwise, the economic viability of services in local ferry routes would be seriously reduced, to the detriment of the regular servicing of islands.

4.6.6

With regard to advanced payments to accident victims or their dependants, the EESC supports the proposal on advanced payment in respect of shipping incidents for which the Athens Protocol provides for a strict liability regime.

4.6.7

The provisions on disabled people and pre-journey information should be seen as complementary and not as a deviation from the Athens Protocol. Similar provisions have been introduced in the Regulation on Air Passenger rights referring to the Montreal Convention.

4.6.8

Regarding inland navigation, the EESC believes that the Third Maritime Safety Package fails to take into account the differences between inland waterways (rivers and deltas, canals, lakes) and maritime transport (inland — to islands, with the public service of assuming territorial continuity — and international). Both the nature and use of these routes are different, thus justifying a different legal regime (navigational/safety/liability rules. mandatory liability and insurance).

4.7.1

The EESC supports the proposed ratification by the Member States of the 1996 LLMC Protocol, which would double the levels of civil liability of shipowners compared to the 1976 LLMC levels. The 1976 LLMC is an umbrella convention covering all maritime claims. The EESC, however, takes note of the proposal for all ships (irrespective of flag) entering EU waters to carry a financial responsibility certificate for double the amount laid down in the 1996 LLMC Protocol.

4.7.2

Under the United Nations Convention on the Law of the Sea (UNCLOS), coastal states can go beyond the provisions of the Convention provisions only in respect of third vessels calling at their ports. P & I Clubs have declared that they are not willing to provide certificates exceeding the level laid down in 1996 LLMC Protocol.

4.7.3

Insurance is preferable to insolvency and insurance depends on clear liability criteria. A consequence of abandoning limitation in case of gross negligence will be to reduce the insurance market and increase the number of one-ship companies utilising the law governing limited liability companies.

4.7.4

The EESC nevertheless notes that the perception and estimation of the extent of damage and responsibility have changed a great deal over recent years; very often compensation paid for damages is perceived as being far less than the amounts of direct or, in particular, indirect damage suffered. There is certainly room for improvement in this area. The Committee proposes that the Commission carry out an economic analysis of its proposal. Such analysis should determine what would be the economic effect of abandoning limitation of liability altogether and whether there is a case for increasing the levels of limitation.

4.7.4.1

The EESC recalls its earlier opinions on the Erika I and II packages and reiterates that the basic yardstick should be the rapid and guaranteed compensation of victims for the damage suffered and not an invitation for more litigation and procrastination of trials. A ratification of all existing IMO Conventions should allow for a more adequate civil liability, for compulsory insurance and direct action for specifically defined claims, as envisaged in the proposed Directive.

4.7.4.2

The EESC believes that civil liability should be governed by clear and transparent rules. Under maritime law, ‘gross negligence’ is a legal concept commonly applied in disputes about damage caused to cargo. At international level, the concept used to exclude strict liability is ‘recklessness with knowledge’, a solution that the Committee advocated in its opinion on Erika II, in relation to oil pollution. The Committee therefore recommends that the proposal for a Directive include some objective factors in order to guide the Member States and their courts as to when the ‘gross negligence’ test is satisfied. Otherwise there may be a risk of Member States implementing the Directive in different ways.

4.7.4.3

The EESC maintains that financial security certificates should be evidenced by a certificate of entry into a P&I Club rather than by a certificate issued by a EU Member State. A certificate of entry into a P&I Club will meet the purposes of the proposed instrument and is readily available from P&I Clubs.

4.7.5

The EESC feels that the proposal, in its present form, is in conflict with Directive 2004/35/EC of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, which recognised the primary application of IMO Conventions, including the LLMC. This could cause problems with regard to the international law of treaties for Member States which are parties to the 1976 and 1996 LLMC Conventions.

4.7.5.1

The EESC supports the proposal for ships to carry financial security certificates for abandonment of seafarers and notes that a joint IMO-ILO working group is working on this subject, which falls within its remit at international level.

4.7.6

Liability and compensation for spills of chemicals and bunker fuels are governed by the Hazardous and Noxious Substances and Bunker Oil Spills Conventions and reflect a consensus of opinion of the international community. The EESC strongly recommends the Commission to undertake all efforts for an early entry into force of the HNS and Bunker Oil Spills Conventions in the EU through their prompt ratification by EU Member States.

5.1

The Committee notes with interest the recent 94th International Labour Conference (Maritime Session) of the ILO, which adopted a single maritime labour convention in the form of legally binding provisions and a section containing recommendations. The new convention consolidates and updates the existing body of maritime conventions adopted since the 1920s and modified on various occasions over the years into a clear and comprehensive maritime labour code. The EESC also notes the intention of the Commission to incorporate the ILO Convention (maritime code) into EU law and supports the ongoing efforts of the study group on social dialogue with a view to implementing the Convention and identifying how best to address the question of its transposition into Community law.

5.2

Reflecting its ongoing concern about the human element in maritime transport, the EESC calls on the Commission above all to make it a priority to encourage all Member States to ratify this convention in order to have a harmonised legislative basis, as soon as possible; before it can enter into force the convention must be ratified by 30 states with at least a third of world gross tonnage. The EU could also give a strong boost to these efforts by promoting ratification by EEA countries and third countries with which there are economic cooperation agreements.

5.3

The cumulative impact of the proposed measures on the administrations of port and flag states (issue of statutory certificates, social inspection, expanded inspection, the objective of 100 % inspection of ships, etc.) should be swiftly assessed by the relevant authorities so that they can take the necessary steps regarding organisation, funding and recruitment as soon as possible.

5.4

In view of the key responsibilities falling within its remit, it is important that the European Maritime Safety Agency also have adequate resources to enable it to fulfil them to the best of its ability.