European Parliament legislative resolution of 29 March 2007 on the proposal for a directive of the European Parliament and of the Council on the civil liability and financial guarantees of shipowners (COM(2005)0593 – C6-0039/2006 – 2005/0242(COD))
(Codecision procedure: first reading)
The European Parliament
– having regard to the Commission proposal to the European Parliament and the Council (COM(2005)0593)(1)
– having regard to Article 251(2) and Article 80(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0039/2006),
– having regard to Rule 51 of its Rules of Procedure,
– having regard to the report of the Committee on Transport and Tourism and the opinion of the Committee on Legal Affairs (A6-0055/2007),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and Commission.
Position of the European Parliament adopted at first reading on 29 March 2007with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council on the civil liability and financial guarantees of shipowners
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,
Having regard to the proposal from the Commission
Having regard to the opinion of the European Economic and Social Committee(1)
Having regard to the opinion of the Committee of the Regions(2)
Acting in accordance with the procedure laid down in Article 251 of the Treaty(3)
(1) One element of Community maritime transport policy is to improve the quality of the merchant navy by making all economic operators act more responsibly.
(2)The protection of European coasts and European citizens in the face of ecological damage of any kind resulting from maritime accidents is an absolute priority for the EU.
(3)The protection of European coasts involves the dual aspects of preventing accidents by ensuring that only safe ships sail and of providing for the arrangements required to ensure that victims can, in as short a time as possible, receive compensation fully commensurate with the damage caused by an accident.
) Dissuasive measures have already been adopted under Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements(4)
, supplemented by Council
Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution(5)
) The international regimes
in respect of civil liability and compensation of third parties for damage related to maritime transport
should be implemented and
improved in order to guarantee that operators in the maritime transport chain ensure that goods are
only transported on board ships
of the highest standard, to ensure fair compensation of victims who are not party to the maritime transport chain and to encourage operators and their representatives to exercise greater vigilance and professionalism
) It is appropriate that the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims (the
be ratified by all Member States and by a large number of third countries.
(7)It is also appropriate that the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (the HNS Convention), the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage (the Bunker Oil Convention) and the 2007 Wreck Removal Convention be ratified by all Member States and by a large number of third countries.
) In order to ensure the full and uniform application of the 1996 Convention throughout the European Union, it is appropriate to incorporate it into Community law. The Community regime of civil liability should enable shipowners to limit their liability to the ceilings laid down in that Convention and in accordance with the provisions thereof.
(9)It should not be possible to apply the limitation of liability under the 1996 Convention to victims not party to the maritime transport operation, if the owner of the ship responsible for the damage has failed to act in a professional manner and should have been aware of the harmful effects of his act or omission.
) The obligation to have a financial guarantee should make it possible to ensure better protection of
victims. It will also help to
eliminate substandard ships and make it possible to re-establish competition between operators. Such an obligation is a necessary complement to the 1996 Convention. In Resolution A.898(21)
, the International Maritime Organisation (IMO)
recommended that States make financial guarantees obligatory. The level of insurance cover should be such as to address situations where the ceilings set by the 1996 Convention are insufficient, without imposing a disproportionate burden on the industry.
) Special measures should be taken in order to protect seafarers in the event of abandonment, on the basis of IMO Resolution A.930(22)
) The establishment of certificates proving the existence of a financial guarantee is a key element of this Directive, as are the notification of these certificates, mutual recognition of certificates between Member States and the accessibility of the financial guarantee to victims seeking compensation.
) The European Maritime Safety Agency established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council(6)
should provide the necessary assistance for the purpose of implementing this Directive, especially with a view to averting legal inconsistencies between Member States
) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7)
) Since the objective
of the action to be taken, namely the introduction of harmonised rules on liability and financial guarantees for shipowners in order to achieve high quality maritime transport, cannot be sufficiently achieved by the Member States and can therefore, by reason of its
scale and effects, be
better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective
HAVE ADOPTED THIS DIRECTIVE:
This Directive lays down rules applicable to certain aspects of the obligations on operators in the maritime transport chain as regards civil liability and introduces financial protection for
seafarers in case of abandonment.
For the purpose of this Directive:
"ship" means a seagoing vessel, irrespective of its flag, of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles and floating craft;
"shipowner" means the owner of the ship or any other organisation or person, such as the manager or the agent or bareboat charterer
, on whom the shipowner has conferred responsibility for operation of the ship and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities this involves;
"civil liability" for the purposes of the 1996 Convention
means the liability by virtue of which a third party to the maritime transport operation responsible for the damage caused is entitled to make
a claim subject to limitation under Article 2 of that
Convention, with the exception of claims covered by Regulation (EC) No …/2007
of the European Parliament and of the Council [on the liability of passenger carriers by sea or by inland waterway in the event of accident](8)
"gross negligence" means conduct showing an unusual lack of due care and a consequent disregard of what should in principle have been clear to everyone in a given situation;
) "financial guarantee" means any financial guarantee, such as insurance or the guarantee of a bank or similar financial institution;
) "1996 Convention" means the recapitulative text of the 1976 Convention on Limitation of Liability
for Maritime Claims, adopted by the International Maritime Organisation, as amended by the 1996 Protocol and reproduced in Annex I
"Bunker Oil Convention" means the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage;
"HNS Convention" means the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea;
"IMO Resolution A.930(22)
" means the Resolution of the Assembly of the International Maritime Organisation and the Governing Body of the International Labour Organisation entitled "Guidelines on provision of financial security in case of abandonment of seafarers", reproduced in Annex II
1. This Directive shall apply, with the exception of Articles 4 and 5
maritime areas under the jurisdiction of Member States, in accordance with international law;
having a gross register tonnage of 300 or more, except for the regime of liability laid down in Article 6
which shall apply to all ships.
. This Directive shall not apply to warships, auxiliary warships or other State-owned or operated ships used for a non-commercial public service.
. This Directive shall be without prejudice to the implementation in each Member State of the Bunker Oil Convention, the HNS Convention and the 1992 International Convention on Civil Liability for Oil Pollution Damage
Civil liability for bunker oil pollution damage
Member States shall become contracting parties to the Bunker Oil Convention as soon as possible and in any case before the date indicated in Article 18(1) of this Directive.
Damage caused by the carriage by sea of hazardous and noxious substances
Member States shall become contracting parties to the HNS Convention as soon as possible and in any case before the date indicated in Article 18(1) of this Directive.
Regime of liability
States shall become contracting parties to the 1996 Convention as soon as possible and in any case before the date indicated in Article 18(1)
of this Directive. Member States which are still party to the 1976 Convention on Limitation of Liability for Maritime Claims must denounce it.
States shall determine the regime of civil liability for shipowners and shall ensure that the right of shipowners to limit their liability is governed by all provisions of the 1996 Convention
3.For the purposes of applying Article 4 of the 1996 Convention, knowledge of probable damage by the person responsible may in all cases be deduced from the nature and circumstances of the act or omission committed recklessly by that person.
. In accordance with Article 15 of the 1996 Convention, Member States shall ensure that Article 4 of that Convention concerning the barring of limitation for liability does not apply to ships flying the flag of a State which is not a contracting party to it
. In such cases, the civil liability regime established by Member
States in accordance with this Directive shall provide that the shipowner loses the right to limit his liability if it is proved that the damage resulted from his act
or omission committed with the intent to cause such damage or through gross negligence.
Financial guarantee for civil liability
shall take the necessary measures to ensure that every owner of a ship flying its flag has a financial guarantee for civil liability. The limit of this guarantee shall not be less than double the ceiling laid down in the 1996 Convention.
shall take the necessary measures to ensure that every owner of a ship flying the flag of a third country has a financial guarantee in accordance with the provisions of the first paragraph as soon as that ship enters its exclusive economic area or equivalent area. The financial guarantee shall be valid for at least three months from the date it is required.
Financial guarantee in case of abandonment of seafarers
shall take the necessary measures to ensure that every owner of a ship flying its flag has a financial guarantee to protect the seafarers employed or engaged on board the ship in case of abandonment, in accordance with IMO Resolution A.930(22)
, and to cover costs of accommodation, medical care, and repatriation
shall take the necessary measures to ensure that every owner of a ship flying the flag of a third country has a financial guarantee in accordance with the provisions of the first paragraph, as soon as that ship enters a port or an offshore terminal under its jurisdiction or drops anchor in an area under its jurisdiction.
shall ensure that the system of financial guarantee in case of abandonment of seafarers is accessible, in accordance with IMO Resolution A.930(22)
Financial guarantee certificates
1. The existence of the financial guarantees referred to in Articles 7 and 8
and the validity thereof shall be proved by one or more certificates, in accordance with the provisions of this Directive, and following the model set out in Annex III
2. Certificates shall be issued by the competent authorities of the Member States once they are sure that the shipowner complies with the requirements laid down in this Directive. When issuing certificates, competent authorities shall also consider whether a guarantor has business operations in the EU.
When a ship is registered in a Member State, the certificates shall be issued or certified by the competent authority of the State in which the ship is registered.
When a ship is registered in a third country, the certificates may be issued or certified by the competent authority of any Member State.
3. The conditions for the issue and the validity of the certificates, in particular the criteria and conditions for issue, as well as the measures concerning the providers of the financial guarantees, shall be determined in accordance with the regulatory procedure referred to in Article 17(2)
4. The certificates shall comply with the model set out in Annex III
and shall include the following information:
name of ship and registry port;
owner's name and principal place of business;
type of guarantee;
name and principal place of business of insurer or other person granting the guarantee and, where appropriate, the place of business where the insurance or guarantee is established;
the period of validity of the certificate, which shall not exceed the period of validity of the insurance or guarantee.
5. The certificates shall be drawn up in the official language(s) of the issuing Member State. If the language used is neither English nor French, the text shall include a translation into one of these languages.
Notification of the financial guarantee certificate
1. The certificate shall be carried on board the ship and a copy shall be deposited with the authority which keeps the record of the ship's registry or, if the ship is not registered in a Member State, with the authority of the State which issued or certified the certificate. The authority concerned shall forward a copy of the certification file to the Community Office provided for in Article 15 so that the latter may include it in the register.
2. The operator, agent or captain of a ship entering the exclusive economic area or equivalent area of a Member State in the cases set out in Article 7
shall notify the authorities of that Member State that a financial guarantee certificate is being carried on board in accordance with the provisions of Annex IV
3. The operator, agent or captain of a ship bound for a port or offshore terminal under the jurisdiction of a Member State or which wishes to drop anchor in an area under the jurisdiction of a Member State in the cases set out in Article 8
shall notify the authorities of that Member State that a financial guarantee certificate is being carried on board in accordance with the provisions of Annex IV
4. The competent authorities of the Member States may
share the information provided for in paragraph 1 through the SafeSeaNet Community platform for maritime data exchange.
Member States shall monitor compliance with the rules laid down in this Directive and shall establish penalties for the infringement of these rules. These penalties shall be effective, proportionate and dissuasive.
Mutual recognition by Member States of financial guarantee certificates
shall recognise certificates issued or certified by another Member State under Article 9
for all purposes of this Directive and shall consider them as having the same value as certificates which it issued or certified itself, even when the ship is not registered in a Member State.
A Member State may at any time request an exchange of views with the issuing or certifying State should it believe that the insurer or guarantor named on the certificate is not financially capable of meeting the obligations imposed by this Directive.
Direct action against the provider of the financial guarantee for civil liability
provider of the financial guarantee covering the owner's civil liability shall be directly liable for compensation for loss or damage caused by the ship
The provider of the financial guarantee may rely on any
defence which the owner himself would be entitled to raise
, with the exception of those based on the owner's bankruptcy or liquidation
The provider of the financial guarantee may also rely on the fact that the loss or
damage was the result of an act or omission
of the owner committed intentionally
. However, it may not rely on any defence
which it could have raised
in an action brought against it by the owner.
The provider of the financial guarantee may, in all cases, require the owner to be joined in the proceedings.
Solidarity fund to cover damage caused by ships without a financial guarantee
A solidarity fund shall be set up to compensate third parties, whether natural or legal persons, that have suffered damage caused by ships which, notwithstanding the obligations laid down in this Directive, have sailed in EU territorial waters without being in possession of a financial guarantee certificate.
The amount to be allotted to this fund, and the fund's operating rules, shall be determined in accordance with the regulatory procedure referred to in Article 17(2).
A Community Office shall be established which shall be responsible for keeping a full register of certificates issued, monitoring and updating their validity, and checking the existence of financial guarantees registered by third countries.
Five years after the date of entry into force of
this Directive, the
Member States shall report to the Commission on the experience gained in applying it
. These reports shall assess in particular the procedures for certification and issuing of certificates by Member States and the need to consider whether this task should be delegated wholly or partly to the Community Office referred to in Article 15.
On this basis, the Commission shall present a report to the European Parliament and the Council including proposals
for amendments to this Directive which it considers relevant.
1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS), established by Regulation
(EC) No 2099/2002 of the European Parliament and of the Council(9)
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period provided for in Article 5(6) of Decision 1999/468/EC shall be three months.
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...(10)
. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
When Member States adopt those measures
they shall contain a reference to this Directive or be accompanied by such reference
on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Entry into force
This Directive shall enter into force on the […] day following that of its publication in the Official Journal of the European Union
This Directive is addressed to the Member States.
For the European Parliament
For the Council
1976 Convention on Limitation of Liability for Maritime Claims, as amended by the 1996 Protocol
(The text of the Convention will be inserted once it is available in all the official languages).
Resolution of the Assembly of the International Maritime Organisation and the Governing Body of the International Labour Organisation entitled "Guidelines on provision of financial security in case of abandonment of seafarers" (IMO Resolution A.930(22))
(The text of the Resolution will be inserted once it is available in all the official languages).
Model financial guarantee certificate referred to in Article 9
Name of ship
Distinctive letter or number
Name and address of owner
I, the undersigned, certify that the above ship is covered by an insurance policy or other financial guarantee which meets the requirements of Directive 2007/.../EC of the European Parliament and of the Council
civil liability and financial guarantees of
Type of guarantee ………………………………………………………………
Duration of the guarantee ……………………………………………………………
Name and address of the insurer(s) and/or guarantor(s)
This certificate is valid until …………………………………
Issued or certified by the Government of …………………………………
Signature and name of official who issued or certified the certificate
List of information to be notified under Article 10