Sanctions for marine pollution
The EU's Maritime Policy Green Paper - 3
The Green Paper on an EU Maritime Policy seeks to encourage the adoption of a holistic approach, meaning that the plethora of issues affecting the maritime sector must be seen as a whole. Thus the challenge lies in building a common thread within the diversity of topics presented with a view to achieving the maximum level of harmonisation.
It is our view that one of the most commendable efforts is to be found at paragraph 2.5 of the Green Paper which, in tackling the serious reality of the declining number of European seafarers, provides that "recruiting well trained and competent seafaring crews and other professionals in sufficient number is crucial for the survival of the maritime industry, for safety reasons and to maintain Europe's competitive edge".
While the recruitment of seafarers is rightly associated with the promotion of EU maritime safety policy, the Green Paper ranks among the efforts made to improve maritime safety "the partial harmonisation of penal sanctions for marine pollution". As we will explain hereunder this may in certain cases present us with an anomalous situation.
As a result of various disasters such as the Erika and Prestige the EU reacted by proposing a Directive on Ship-Source Pollution together with a complementary Framework Decision. These came into force on October 1, 2005 and the deadline for implementation of the directive was April 1, 2007.
The directive aims at incorporating international standards for ship-source pollution into Community law and at ensuring that anyone who is responsible for any such pollution is faced with adequate penalties. It regards any act of pollution, whether committed with intent, recklessly or by serious negligence, to be an infringement and therefore punishable. A failure of this Directive however is that it fails to distinguish between accidental pollution and deliberate acts of pollution. Thus at the receiving end one finds the owner, the crew, the charterers and, quite possibly salvors.
It is the failure of the directive to distinguish between operational discharges which should be heavily penalised and accidental pollution caused as a result of a casualty, which presents a very hard pill to swallow for a young man or woman looking at a seafaring career.
During negotiations, the European Parliament, the shipping industry and some member states showed disagreement with the agreed text.
In fact, Malta and Greece voted against the adoption of the directive, whereas Cyprus abstained. Primarily, Greece and Malta, as well as the industry, claimed that the directive conflicts with well-established principles of international law, such as the freedom granted to contracting parties of the Law of the Sea Convention to legislate within their national waters.
Secondly, the directive, in not distinguishing between accidental and deliberate pollution, treats the two in the same manner.
Thirdly, the directive lowers the basis for responsibility to an undefined mere "serious negligence" meaning that a person having no intention or knowledge whatsoever of the resulting pollution, may nonetheless be found responsible.
Finally, such responsibility can result in criminal penalties including imprisonment.
On December 23, 2005, a coalition of shipping interests consisting of INTERTANKO, INTERCARGO, the Greek Shipping Cooperation Committee, Lloyd's Register and the International Salvage Union, presented a case before the English High Court challenging the validity of the directive with the aim of having the case referred to the European Court of Justice (ECJ).
On June 30, 2006, the High Court ruled the industry's claims to be well founded, granting the application and remitting the case together with a comprehensive list of issues to the ECJ. The judgment is currently pending before the ECJ. It is understood that the governments of Greece, Cyprus and Malta have made their interventions in support of the coalition's case.
Notwithstanding the challenge to its validity, the April 1 implementation deadline of the directive was still binding on all member states, including necessarily Malta.
The prospect of imprisonment and resulting unfair treatment in cases relating to pollution caused after a casualty, as opposed to willful operational discharges - which has been described as the "blame culture" - will discourage seafarers from continuing their marine career and will certainly discourage new recruits. It will also discourage seafarers from cooperating in the investigation of accidents for fear of finding themselves in jail. Furthermore, salvors, whose role in responding to pollution incidents is of the essence, will have no incentive to respond quickly if this would potentially expose them to the risk of criminal prosecution should their actions accidentally contribute to a pollution incident.
On a legislative front, the dilemma lies in maintaining a balance in ensuring the maximum possible protection of the seas without hindering or adversely affecting a trade that is the life source of many. The Directive on Ship-Source Pollution rightly seeks to reduce the amount of pollution with which we are faced. This is of particular relevance to Malta when one considers what the potential impact of such an incident along its coasts would be and its vulnerability in being so centrally located on some of the more internationally utilized shipping routes. Yet the directive creates other problems which will certainly impact on Malta and its shipping sector. These issues must be seen to by the EU Commission if the attainment of a holistic maritime policy is to be achieved.
Dr Vassallo is an associate at Fenech and Fenech Advocates and Ms Seguna is a research assistant at Fenech and Fenech.
It is our view that one of the most commendable efforts is to be found at paragraph 2.5 of the Green Paper which, in tackling the serious reality of the declining number of European seafarers, provides that "recruiting well trained and competent seafaring crews and other professionals in sufficient number is crucial for the survival of the maritime industry, for safety reasons and to maintain Europe's competitive edge".
While the recruitment of seafarers is rightly associated with the promotion of EU maritime safety policy, the Green Paper ranks among the efforts made to improve maritime safety "the partial harmonisation of penal sanctions for marine pollution". As we will explain hereunder this may in certain cases present us with an anomalous situation.
As a result of various disasters such as the Erika and Prestige the EU reacted by proposing a Directive on Ship-Source Pollution together with a complementary Framework Decision. These came into force on October 1, 2005 and the deadline for implementation of the directive was April 1, 2007.
The directive aims at incorporating international standards for ship-source pollution into Community law and at ensuring that anyone who is responsible for any such pollution is faced with adequate penalties. It regards any act of pollution, whether committed with intent, recklessly or by serious negligence, to be an infringement and therefore punishable. A failure of this Directive however is that it fails to distinguish between accidental pollution and deliberate acts of pollution. Thus at the receiving end one finds the owner, the crew, the charterers and, quite possibly salvors.
It is the failure of the directive to distinguish between operational discharges which should be heavily penalised and accidental pollution caused as a result of a casualty, which presents a very hard pill to swallow for a young man or woman looking at a seafaring career.
During negotiations, the European Parliament, the shipping industry and some member states showed disagreement with the agreed text.
In fact, Malta and Greece voted against the adoption of the directive, whereas Cyprus abstained. Primarily, Greece and Malta, as well as the industry, claimed that the directive conflicts with well-established principles of international law, such as the freedom granted to contracting parties of the Law of the Sea Convention to legislate within their national waters.
Secondly, the directive, in not distinguishing between accidental and deliberate pollution, treats the two in the same manner.
Thirdly, the directive lowers the basis for responsibility to an undefined mere "serious negligence" meaning that a person having no intention or knowledge whatsoever of the resulting pollution, may nonetheless be found responsible.
Finally, such responsibility can result in criminal penalties including imprisonment.
On December 23, 2005, a coalition of shipping interests consisting of INTERTANKO, INTERCARGO, the Greek Shipping Cooperation Committee, Lloyd's Register and the International Salvage Union, presented a case before the English High Court challenging the validity of the directive with the aim of having the case referred to the European Court of Justice (ECJ).
On June 30, 2006, the High Court ruled the industry's claims to be well founded, granting the application and remitting the case together with a comprehensive list of issues to the ECJ. The judgment is currently pending before the ECJ. It is understood that the governments of Greece, Cyprus and Malta have made their interventions in support of the coalition's case.
Notwithstanding the challenge to its validity, the April 1 implementation deadline of the directive was still binding on all member states, including necessarily Malta.
The prospect of imprisonment and resulting unfair treatment in cases relating to pollution caused after a casualty, as opposed to willful operational discharges - which has been described as the "blame culture" - will discourage seafarers from continuing their marine career and will certainly discourage new recruits. It will also discourage seafarers from cooperating in the investigation of accidents for fear of finding themselves in jail. Furthermore, salvors, whose role in responding to pollution incidents is of the essence, will have no incentive to respond quickly if this would potentially expose them to the risk of criminal prosecution should their actions accidentally contribute to a pollution incident.
On a legislative front, the dilemma lies in maintaining a balance in ensuring the maximum possible protection of the seas without hindering or adversely affecting a trade that is the life source of many. The Directive on Ship-Source Pollution rightly seeks to reduce the amount of pollution with which we are faced. This is of particular relevance to Malta when one considers what the potential impact of such an incident along its coasts would be and its vulnerability in being so centrally located on some of the more internationally utilized shipping routes. Yet the directive creates other problems which will certainly impact on Malta and its shipping sector. These issues must be seen to by the EU Commission if the attainment of a holistic maritime policy is to be achieved.
Dr Vassallo is an associate at Fenech and Fenech Advocates and Ms Seguna is a research assistant at Fenech and Fenech.