120307 Intertanko EU SSP briefing

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Criminal Liability for Oil Pollution The EU Ship Source Pollution Directive (2005/35/EC) (International v. Regional/Local Regulation): 

Criminal Liability for Oil Pollution The EU Ship Source Pollution Directive (2005/35/EC) (International v. Regional/Local Regulation) John C. Fawcett-Ellis General Counsel, INTERTANKO University of Oslo, 7 March 2007

Liability for Oil Pollution: 

Liability for Oil Pollution Oil pollution from ships is prohibited by MARPOL 73/78 In the event of oil pollution there will be civil liability and may be criminal liability Civil Liability & Compensation governed by the Civil Liability Convention and the Fund Conventions of 1992 and the Supplementary Fund Convention of 2003 Criminal Liability governed by MARPOL 73/78, UNCLOS, EU Directive on Ship Source Pollution and national laws

EU Ship Source Pollution Directive: 

EU Ship Source Pollution Directive 19.11.02 - The tanker Prestige breaks up off the Spanish Coast First draft - March 2003 - Seeking to criminalise accidental pollution Draft Directive contoversial from the start - concerns from industry + Member States Entered into force on 1 October 2005 States must implement the Directive by 1 April 2007 Applies within territorial seas, EEZ and on high seas Applies irrespective of flag Applies to owners, master, crew, class, salvors, charterers except authorities

Contrasting MARPOL with the Directive: 

Contrasting MARPOL with the Directive MARPOL Distinguishes between operational and accidental discharges Operational discharges prohibited except when conditions complied with if not strict liability Accidental discharges – not breaches provided that result from damage to ship or its equipment + all reasonable precautions have been taken to prevent or minimise the discharge and except if the owner/master acted with intent or recklessly with knowledge Directive No distinction between operational and accidental discharges Criminal liability for infringements if committed with intent, recklessness or by serious negligence Applies irrespective of flag Applies within the territorial seas, EEZ and on the high seas Applies to owner, master, crew, salvor, charterer, class, etc Within territorial seas MARPOL defence not available Outside territoral seas, owner, master and crew can rely on the MARPOL defence

Industry’s Case: 

Industry’s Case MARPOL lays down a uniform set of rules which contracting states cannot depart from The Directive puts Member States in conflict with their existing obligations under MARPOL in that: - Within territoral waters the Directive imposes criminal liability for all discharges caused by serious negligence, and precludes any defendant from relying on the MARPOL ”defence” under Reg 11 (b) of Annex I - Within a Member State’s EEZ or on the High Seas the Directive imposes liability for serious negligence for persons other than the owner, master or crew The effect of the Directive in territoral seas is to hamper the right of innocent passage under UNCLOS by lowering the threshold of liability to one of serious negligence

Industry’s case: 

Industry’s case The test of “serious negligence” is vague and subjective and therefore fails to satisfy the EU principle of legal certainty Wealth of supporting evidence submitted from owners, salvors and class

English Proceedings issued 23.12.05: 

English Proceedings issued 23.12.05 In the High Court of Justice (Administrative Court) Between: INTERTANKO, INTERCARGO, GSCC, LLOYD’S REGISTER and THE INTERNATIONAL SALVAGE UNION v. UK Secretary of State for Department of Transport

The Industry Coalition: 

The Industry Coalition INTERTANKO INTERCARGO Greek Shipping Cooperation Committee Lloyd’s Register International Salvage Union

English High Court Proceedings: 

English High Court Proceedings Application for judicial review made to the English High Court of Justice Remedy sought: Reference (under Art 234) to the European Court of Justice in Luxembourg (ECJ) for a preliminary ruling on the legality of the Directive Case heard by Mr Justice Hodge on 7 June 2006 Counsel for the Claimants: Prof. Christopher Greenwood QC CMG, Mr Hugh Mercer (Essex Court Chambers) Judgment delivered on 30 June 2006

English High Court Proceedings: 

English High Court Proceedings The Claimants had to show that that they had a “well founded” arguments References to the ECJ are not lightly made – ECJ very busy plus expense of the proceedings, translations etc…

30.6.06 - Decision of Hodge J: 

30.6.06 - Decision of Hodge J HELD that the Claimants arguments were “well founded” i.e. had reasonable prospects of success, he therefore referred four questions to the ECJ: Whether it is lawful for the EU to impose criminal liability in respect of discharges from foreign flag ships on the high seas or in the EEZ and to limit MARPOL defences in such cases; Whether it is lawful for the EU to exclude MARPOL defences for discharges in the territorial sea; Whether the imposition of criminal liability for discharges caused by “serious negligence” hampers the right of innocent passage; Whether the imposition of criminal liability for discharges caused by “serious negligence” satisfies the requirement of legal certainty

Proceedings before the ECJ: 

Proceedings before the ECJ Submissions filed by parties Observations filed by Member States & EU Institutions Application made for an oral hearing Court to appoint Judge Advocate Grand Chamber of 13 Judges or a Chamber of 3 or 5 Judges?

Thank You: 

Thank You legal@intertanko.com www.intertanko.com www.shippingfacts.com

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