» PUBLICATION 04-1 MARITIME SAFETY PACKAGE 2004:CONSULTATION PAPER FOR INDUSTRY AN ECSA COMMENTARY GENERAL ECSA has consistently supported rigorous enforcement of internationally agreed maritime safety and environmental standards in the EU and has consequently welcomed and supported EU measures, notably in the Erika I and II packages, designed to enhance this process. It has been appreciated that the comprehensive EU measures introduced over the last decade, in recognition of the international character of shipping, have very largely been based on international requirements. In this context, the role of IMO as the primary standard setting body should be recognised and supported, with the 25 EU Member States and the Commission coordinating closely to ensure that their powerful combined influence is fully exerted. This is particularly relevant in relation to the IMO Code and model audit scheme, as referred to in the consultation paper. Enhancing safety is of course an ongoing process and at first reading, the industry can very largely support in principle the amendments proposed to existing directives, notably in relation to port state control and the monitoring and reporting directive. In relation to PSC, enhanced targeting of sub standard ships with the development of incentives for shipowners operating high quality ships provides, in broad terms, a balanced way forward. However, it has been evident in the past that while introducing measures on to the statute book is relatively easy, ensuring that they are effectively enforced can pose significant difficulties without the clear political will of Member States to provide the necessary human and financial resources. Such a factor needs to be carefully assessed before embarking on another round of legislative initiatives. The priority must be to ensure proper enforcement of existing instruments. In the same context it is disappointing that many Member States have yet to ratify central Conventions such as MARPOL ANNEX VI, the AFS Convention and the HNS and Bunker Conventions; the Commission can play an important role in encouraging all Member States to do so. As recognised in the paper, the key enforcement mechanism introduced or strengthened in the EU over recent years has been port state control; there is now a good case for the EU to turn its attention to flag state control within the enlarged EU and in the international context. As mentioned, this is particularly so given that the issue is increasingly being driven forward in the IMO, with the Member States and the Commission rightly taking a leading role in ensuring that concrete progress is made over the next year. The flag state initiative, as arguably the cornerstone of the envisaged 2004 package, is consequently broadly welcomed - the acknowledgement that developments in IMO will be taken full account of is particularly important, as is the statement that EU shipowners who have chosen to register within the EU should not be placed at a commercial disadvantage for choosing a high quality register. It is noteworthy that the industry itself has recently taken the initiate of producing Guidelines on Flag State Responsibilities. As mentioned, the consultation paper does appear to take due account of international developments in relation to safety and environmental issues, and indeed in the social area through support for the ILO process leading hopefully to a comprehensive Labour Standards Convention. In relation to the Convention, the industry is committed to reaching agreement and welcomes the Commission’s active involvement in the process to help ensure this is realised. Once agreed, its transposition and enforcement at the EU level would be the logical next step. A key role for the Commission will be to ensure that the Convention is ratified by the 25 EU Member States. However, in the area of liability and compensation we have some concern that the ongoing discussions in IMO are not being taken fully into account in relation to the issues raised in the paper. SPECIFIC There follows some preliminary comments to the questions posed/ideas put forward in the paper under the same numbering system, together with some additional views on the topics under discussion. I. APPROACH TO MARINE CASUALTY INVESTIGATIONS IN THE EU 1.1.What are, in your view, the shortcomings in the international marine regime in respect of accident investigation? In ECSA’s view, there are two major shortcomings, namely, the scope of IMO regulations and, in particular, SOLAS regulation I/21 and its implementation. Regulation I/21 stipulates that ‘Each Administration undertakes to conduct an investigation of any casualty occurring to any of its ships subject to the provisions of the present Convention when it judges that such an investigation may assist in determining what changes in the present regulations might be desirable’. Therefore, under international law the conduct of technical investigations depends on the judgement of the States. The International Maritime Organizations’ Code for the Investigation of Marine Casualties (Res. A.749(20) addresses the second shortcoming. However, the Code is regrettably not mandatory. 1.2 Based on your experience, would you consider desirable that technical casualty investigation are conducted by a permanent investigation bodies, with adequate means appropriate expertise in the shipping sector? ECSA considers it important that EU flag states should retain their responsibilities in relation to accident investigation through properly resourced (in terms of finance and expertise) permanent national investigation bodies. Should some form of single permanent body be under consideration, it should come under the auspices of IMO. However, it is perhaps difficult to envisage in practice such a body being created in the foreseeable future. 1.3 What other alternative means for conducting thorough and unbiased technical marine casualty investigations would you suggest? ECSA is not aware of any proven need to look at alternative means of accident investigations. However, it is recognised that in an enlarged EU EMSA could make an important contribution to establishing high and consistent standards of investigation within the EU by providing technical expertise to some Member States, on request. With the same goals, EMSA/Commission could usefully promote/fund the training of accident investigators, as has been successfully undertaken in relation to PSC inspectors. 1.4 What means should be envisaged to guarantee that marine casualty investigators have ready access to the relevant information including survey records held by the flag state, the owner and classification societies? The mandatory implementation of the IMO Code and co-operation between flag States should result in the necessary exchange of relevant information. It should also be noted in this regard that cooperation/coordination between the different permanent investigation bodies within the EU and internationally already takes place. In the latter regard, reference could be made to the Marine Accident Investigators International Forum (MAIIF). Information from classification societies, possible under the terms of Directive 94/57, as well as from the flag state, together with the records and documentation on board ships, should be sufficient for the intended purpose. 1.5 How do you think that the industry could contribute to a better preparation and successful conduct of thorough and unbiased technical marine casualty investigations? A cooperative and constructive approach by industry is certainly necessary, it being particularly important that investigations concentrate strictly on the causes of the accident and the lessons that could be learnt rather than on trying to apportion blame. In the latter regard, it is particularly important to avoid the criminalisation of seafarers. Furthermore, any “technical” investigation should remain autonomous, with the legal investigation not being jeopardised in any way. 1.6 How, in your opinion, can be achieved that all the parties directly or indirectly involved on a marine casualty –e.g. owners, charterers, classification societies, crews, naval architects, yards and others – cooperate in the good development of the technical investigation and disclose all the necessary information? The points raised under 2.4 and 2.5 above would also seem applicable to this question. 1.7 Would you consider that developing confidential reporting schemes would contribute to the successful conduct of marine casualty investigations? Information on the reporting schemes envisaged is needed before providing a view on whether they would make a positive contribution. ECSA recognises that there could, in principle, be cases where confidential reporting schemes can remove the potential problem of lack of total openness on the part some witnesses for fear of penal or insurance consequences. 1.8 What are your views about the deadlines that ideally a technical marine casualty investigation should respect? Should a reasonable period of time be envisaged for completion of the investigation? It is in industry’s interests that investigations are undertaken in a timely and thorough fashion. While it may well be appropriate to fix indicative deadlines, the complexity of each situation must be taken into account. The priority must be for there to be sufficient time and resources to ensure that authoritative investigation reports result. II. AMENDMENT OF THE DIRECTIVE ON A VESSEL TRAFFIC MONITORING AND INFORMATION SYSTEM 2.1 Update in light of international legislation ECSA supports the proposed course of action. 2.2 Use of SafeSeaNet System The mandatory use of the system, applicable to all vessels in the EEZ, is supported, it being recognised that extended application should reduce the number and frequency of inspections. It is important to ensure it does not result in increased administrative or costs burdens for the industry, that there is harmonisation with international rules and that confidentiality vis a vis any possible commercial implications is taken into account. 2.3 Clarifying requirements regarding plans for places of refuge The proposals are supported. In particular, provisions making access to such places subject to financial or administrative requirements should be resisted as they would discourage ships from seeking places of refuge or permit coastal states to refuse the provision of such a place if the demand is not met. It is important for EMSA to continue to encourage the ongoing cooperation between Member States. 2.4 Clarify requirements of “Black Boxes”. VDRs are regulated by IMO and it is important that any EU action should be consistent with the SOLAS carriage requirements and the IMO relevant performance standard. 2.5 Satellite-tracking system of dangerous cargoes and ships deemed to be substandard. Long-range tracking via AIS and IMARSAT- C of ships is under consideration by IMO. Whatever is produced within the EU should take full account of the international dimension. The accompanying commercial implications should also be carefully considered. It would be helpful if the Commission could clarify what requirements (ships type and size applicability and range of coverage) are envisaged. 2.6 Technical requirements aimed to ease the identification of the origin of oil spills at sea. The initiative, which is presumed to refer to oil tagging, is certainly supported in principle. However, the industry recognises the technical complexity of the issue and would stress the need to be fully satisfied of the practical effectiveness of the solutions before introducing measures. III. LIABILITY AND COMPENSATION 1. Compensation of pollution damages ·ECSA recommends a coordinated ratification by Member States of the EU of the relevant modern liability conventions especially HNS, Bunker Oil Liability Convention, Protocol to LLMC Convention, Protocol to introduce the IOPC Supplementary Fund. ·The IOPC Supplementary Fund will probably enter into force end of this year for those states which have ratified the protocol. That will bring the total amount available for compensation of victims up to 1 billion USD. The compensation system is based on a strict liability channelled to the registered shipowner with a very narrow list of defences, compulsory insurance, direct action against the insurer and as a quid pro quo an upper limit of liability depending on the size of the ship topped up by the IOPC Fund plus the Supplementary Fund. Both funds are financed by all oil receivers in contracting states. This system facilitates a quick and efficient compensation for victims. The victims have not to prove which party is at fault, the registered owner even if he is not connected with the actual operation of the ship is easily identified and strictly liable even if he is not at fault. Equally the cargo contribution is levied not against the individual oil company concerned but against the IOPC Fund to which all oil receivers contribute. Against this background it is difficult to understand any consideration to implement an insurance system for oil pollution risks in EU waters up to the limits of OPA 90. OPA 90 was needed in the United States because the US are not a State Party of the CLC/IOPC Fund System. To introduce liability and insurance elements of the OPA 90 legislation into a region governed by the CLC and Fund System would legally only be possible if the ratification of the CLC and Fund System would be denounced beforehand. That would disturb the basis of the IOPC Fund and would be detrimental to possible victims of an oil pollution accident in Europe. Such a consideration would therefore not be supported by the industry. ·A Working Group of the IOPC Fund is actually discussing two main questions: a) Whether the financial responsibility for oil pollutions accidents is equally shared by the shipping industry and the oil industry. A new study produced by the Secretariat of the IOPC Fund shows that this is the case based on the existing liability system. To secure an equal sharing if the Supplementary Fund comes into force the P&I Clubs have offered a contractual binding solution which is supported by the shipping industry. Such a contractual solution would avoid a reopening of the CLC Convention and would avoid difficult treaty law problems. 2. “ATHENS”- Proposal for a Regulation on the civil liability of carriers of passengers by sea. The industry supports the Protocol 2002 to the Athens Convention. But before the protocol could be ratified it is strongly recommended to solve the insurance problems. It is up to now not clear whether the P&I System will be able to cover the very high levels of liability that are established under the new Protocol. The further point is the unclear situation whether and to what extent the liability of a new protocol includes a liability for terrorists’ acts, which are not insurable. The problems have been discussed in the IMO Legal Committee and will be discussed further. Norway has offered at the last session to chair an informal corresponding group for an exchange of views and experience. The industry recommends to take part in those discussions and to solve the insurance problems before a ratification is envisaged. b) Whether the liability system could/should be used to avoid substandard oil transportation on both sides of a transport contract (the shipowner and the charterer/cargo owner). The industry supports a closer cooperation with the insurance industry and between insurers to exclude substandard operators out of the market. A higher or more complex liability system is in the opinion of the industry less suitable to achieve this political aim. The Member States of the CLC Convention and the IOPC Fund participating in the Working Group are therefore divided whether a higher or different liability system should be introduced by reopening the CLC. The industry does not support a reopening of the Convention but recommends that the EU-Commission takes part in the ongoing discussion within the Working Group of the IOPC Fund. The final solution should be internationally agreed. IV.THE FLAG STATE INITIATIVE The proposal rightly acknowledges the significant developments in IMO on flag state performance, notably the Guidelines and the anticipated adoption of the IMO Code as well as the Model Audit Scheme. Consequently, it is vital that such developments once finalised form the basis of any EU initiative for a framework for EU flag state responsibilities. It is important that the enlarged Community plays its full and influential part in the IMO discussions to ensure a successful outcome. The details of such an initiative of course needs considerable thought, with a crucial element being the existence of appropriate human and financial resources to implement such an initiative. It is also important to maintain the principle that individual flag states are best placed to effectively exercise flag state control. 4.1 Tracing of ships which left the register of an EU Member State The concept implies that such ships are suspected of being at least potentially substandard. It is important to note that changing flag is often unrelated to safety, bareboat chartering and compliance with cabotage flag requirements being examples where competitive factors may inter alia play a part. Consideration should be given to whether such a goal could be a disincentive to register under an EU flag and whether the EU would be left open to charges of discrimination. 4.2 The monitoring of the process of delegation authority to EU recognized organisations: Having due regard to the provisions of Directive 94/57/EC, which essentially addresses the relationship between the flag State and the classification societies acting on behalf of the flag State do member States concur with the view of the Commission services that the monitoring of the delegation process itself, if any, has to be addressed within the flag State initiative? What are your views on possible solutions to solve the potential conflict of interest for the same RO (Recognized classification society) to issue statutory certificates and class certificates (paid by the shipowner) for the same ship? ECSA agrees that Directive 94/57/EC should come under the umbrella of the flag state initiative when the conditions for its development are met. The question perhaps implies that different RO should be involved in the certification of the ship so as to allow cross-checking. However, due to greater transparency and auditing over recent years, ECSA does not see any significant conflict for classification societies to issue both statutory and class certificates for the same ship. Indeed, the involvement of the same people in the overall task can be viewed as advantageous in safety terms. The important role of EMSA in comprehensively auditing RO should be borne in mind in this context. 4.3 Unscheduled flag State inspections Flag States are bound to institute arrangements for unscheduled inspections to be carried out during the validity of the certificates. What do you think of the idea that such inspections could be organised on the basis of a commonly agreed scenario and by an ad hoc commonly nominated surveyor’s team? Should such inspections replace gradually EU PSC inspections for EU flagged ships? Ships are subjected to scheduled annual inspections and intermediate and renewal surveys. Unscheduled flag inspections are no longer required for certification purposes. However, unscheduled flag inspections for control and oversight purposes are carried out by many EU administrations, with such inspections in most cases covering or going beyond the areas covered by PSC. Consideration should therefore, in relation to individual ships, be given to the possibility in the future of unscheduled flag state inspections replacing PSC provided they are not in addition to existing flag state inspections. The added value of a commonly nominated surveyors team and a commonly agreed scenario for carrying out unscheduled inspections need further analysis. 4.3 Monitoring of the behaviour of the ships flying a Member State’s flag Flag States are expected to develop and implement a control and monitoring programme of the ships flying their flag. Taking into account of the information which will be provided through the SAFESEANET project, the detailed information available through the Paris MOU, EQUASIS and any other information source developed by the industry (IACS, INTERTANKO, INTERCARGO, BIMCO…), would the industry volunteer to contribute to this monitoring, e.g. by providing information and assistance to EMSA? ECSA believes that Member States are best placed to monitor the behaviour of ships flying their flag, and their role in that regard should continue. Greater cooperation between Member States and exchange of best practice could be useful, with the technical expertise within EMSA available as necessary. Shipowner associations in a position to do so should provide assistance to EMSA in the context of enhancing safety and environmental protection. V. RECASTING OF THE LEGISLATION ON PORT STATE CONTROL 5.1 What is your perception of the current contribution of pilots to the implementation of the provisions of the port State Control Directive related to the transmission of information to relevant authorities in the course of pilotage operations ? Do you think deep-sea pilots should also notify such information concerning ships in transit ? What are your views on the possible ways to improve in general the contribution of pilots to the detection of substandard vessels or dangerous situations? In acknowledging their essential but limited role/area of expertise, a greater role for pilots in ships in transit in reporting information would only have added value in safety terms if strictly related to their normal course of work. The question of potential financial liability on pilots either for groundless reporting, or even not reporting, should also be carefully considered in this context. It is noted that under Article 13 of Directive 95/21 there are provisions, albeit limited, for pilots to report. It would be helpful in any discussion on an extension for the Commission to analyse the practical contribution of this current requirement to enhanced safety. 5.2.What would be in your opinion the best way to avoid the development of “ports of convenience? So-called ‘ports of convenience’ are considered to be a result of under resourcing (human and financial) rather than any deliberate policy. Continued pressure from the Commission on Member States to perform their obligations is fully supported by the industry. Moreover, greater emphasis on targeting of substandard ships is supported and the discussions in the Paris MOU to review the 25% inspection rule could prove useful. 5.3.What is in your opinion the most efficient way to make sure that potentially substandard ships calling at anchorages may be identified and possibly inspected and detained/banned? The proper application of the targeting factor, the record of the individual ship and access to various databases, with a consistent target factor throughout the EU being important. 5.4 Which elements should be taken into account in a reward system for quality operators? Port State control is essentially about controlling compliance with mandatory standards and focusing on substandard ships, ‘quality’ ships and operators being identified on the basis of their PSC record. Ships with a proven PSC record should be rewarded with fewer inspections, the USCG QUALSHIP 21 system perhaps being a model for the way forward within the EU. 5.5 How do you think that the industry could contribute to a better preparation and more rationale, efficient and fast management of port state control inspections? The shipping industry could contribute by ensuring that ships comply with required standards, thus negating the need of port State control or limiting expanded and detailed inspections and follow-up actions. Enhanced Industry cooperation/involvement with PSC bodies would also be helpful. 5.6 Do you believe that the current notification or information systems should be improved in order to provide PSCOs with more accurate/detailed information on ships calling to ports of inspection? We believe that the current system, coupled with the possibility of accessing other sources of information, is essentially adequate. However, improvements could be made to ensuring that incorrect information is rectified more speedily. 5.7 Do you think classification societies should be more involved in the preparation, conduct and follow-up of inspections? Should the possibility of combining surveys with expanded port state control inspections be examined? ECSA does not think that it is appropriate to involve classification societies in PSC. In most cases, they will control ships on aspects where they are directly responsible, unless control by a different classification society is envisaged. Also, ECSA does not think that it is wise to combine the timing of surveys and expanded inspections. An expanded port state control inspection between surveys better serves the purpose of PSC. Usually, in preparation of class or statutory surveys, maintenance or repair work is undertaken. Concurrent control will create complications and frictions between port state control, class and flag states. Concurrent control will inevitably lead to more detailed inspection, beyond the scope of the expanded inspection, to the classification of outstanding items as deficiencies and to detentions as a matter of precaution and formality to ensure completion of repairs/rectification of ‘detainable deficiencies’. 5.8 What are your views on a possible harmonization/simplification of the criteria for refusal of access in case of multiple detentions, as well as its extension to general cargo ships? The criteria should be reviewed because the serious implication of their application (banning) depends only on the number of detentions and not on the seriousness of the deficiencies that led to them. The banning and expanded inspection schemes apply to certain types of ships and ECSA has no objection in principle to the extension to general cargo ships on the same criteria that operate for other ships. 5.9 Would you be in favour of a “code of good conduct” for port State control inspectors? Yes. 5.10 What is your opinion on the current procedures applied within the Paris MOU for reviewing litigious cases of inspections/detentions (the “review panel”)? ECSA is not aware of how often the procedure has been used, and an analysis of its effectiveness would be helpful. However, at first sight, ECSA members have doubts on whether all cases of detentions are correct. Moreover, there is some concern that owners, in reality, do not have effective recourse to the procedure, believing that they cannot win their case against Governments who would be required pay compensation for undue detentions. The Paris MOU should establish a filtering mechanism that would scrutinize the severity of deficiencies leading to detentions, as in many cases they are related to class items (approved construction and arrangements) beyond the control of the ship or the owner. VI – MARITIME LABOUR STANDARDS ECSA has consistently support for the ILO process leading to the adoption of a consolidated Labour Convention in 2005 and the Commission’s involvement in encouraging a successful outcome. The issue of social protection is sensitive and subject to further discussion in Geneva. ECSA could support transposition of the Convention, once agreed, into EU law. Great caution should be exercised in relation to transposing ILO Conventions into EU law in the absence of agreement on the consolidated Convention in that many are suitable for the shipping industry of today. Account should also be taken of the need to avoid the situation whereby the shortcomings of flag state administrations result in sanctions such as PSC detentions for the vessel operator. June 2004