The industry is concerned that seafarers are not receiving equitable and fair treatment. Current activity in this regards concerns the EU Ship Source Pollution Directive and action taken again the crew of the Hebei Spirit.
In addition such treatment also leads to a negative image of the shipping industry and is detrimental to efforts encouraging young people to pursue a career at sea .
The EU Ship Source Pollution Directive seeks to criminalise behaviour for accidental pollution. Naturally, Intercargo does not seek to defend the position of those convicted of deliberate pollution but notes and supports the predominance of international laws, conventions and pollution response / compensation regimes over purely regional responses.
Intercargo believes in the highest possible environmental standards which it believes should be imposed and strictly enforced through international, rather than regional regimes.
Summary of Recent Developments
With the support of its members, Intercargo joined the Industry coalition led by Intertanko which has argued its position in the European Court of Justice. The final decision of the ECJ was delivered on 3 June 2008 and in brief, the ECJ ruled that the Directive:
1. Cannot be assessed by reference to MARPOL as the Community itself (unlike its Member States) is not a party to MARPOL.
2. Cannot be assessed by reference to UNCLOS as, although the Community is a party to UNCLOS, that Convention does not give individuals rights or freedoms on which they can rely against States.
The Court has held that the use of the term ‘serious negligence’ does not infringe the requirement of certainty in Community legislation.
This departs from the opinion of Advocate General Kokott, who concluded that the validity of the Directive should be tested by reference to MARPOL and UNCLOS, and that it exceeds Community powers unless ‘serious negligence’ is construed to have different meanings inside and outside territorial waters. This leaves the Member State legislators in some difficulty, having to use the same terminology whilst interpreting it differently depending on where the incident takes place.
The judgement means that the Directive is valid and the Commission has taken, and will continue to take, steps to reprimand Member States that have failed to implement the Directive. The judgement leaves open significant questions for Member States on the implementation and interpretation of the Directive. Also, the broader question of the relationship between EU legislation and international maritime regulations negotiated at the IMO is a matter for concern for the industry. Non-EU Member states have expressed concern that an EU Member can negotiate at the IMO and reach an international compromise, but the judgement appears to give the EU the ability to act unilaterally provided the EU Member States act collectively.
The case must be referred back to the English High Court for conclusion, either on a contested, or an agreed basis. In addition, there is the option to refer the matter to the International Tribunal for the Law of the Sea in Hamburg. This tribunal adjudicates disputes concerning the interpretation or application of UNCLOS. Proceedings before the tribunal would need to be brought by a non-EU Member State.
The coalition is seeking to engage with the UK Government to establish how much common ground exists and the proper interpretation of the Directive in the light of the ECJ proceedings but so far there has been no progress.
The Round Table plus other Industry groupings including the ITF, have worked closely together in support of the two seafarers who were initially jailed in Korea when their properly moored tanker was hit by a not-under-control barge. We believe that this collective industry action, including the signing of a letter by Industry CEOs including some from Intercargo members, may well have been instrumental in the decision to free those men on bail. However, a Supreme Court ruling is expected in the next few months, following which – it is earnestly hoped, the men are free to leave Korea having been exonerated of their offences.