EU Member States urged to ratify/accede to 2010 HNS Convention by 6 May 2021.

 

COUNCIL DECISION (EU) 2017/769 of 25.4.2017 authorises Member States to ratify or accede to the 2010 Protocol of the HNS Convention with the exception of the aspects related to judicial cooperation in civil matters. The decision also provides that they “shall endeavour to take the necessary steps to deposit the instruments of ratification of, or accession to, the Protocol of 2010 within a reasonable time and, if possible, by 6 May 2021”.

 

A parallel COUNCIL DECISION (EU) 2017/770 contains a similar authorization in relation to those aspects related to judicial cooperation in civil matters, subject to depositing the standard declaration preserving the effect of the Brussels I (Recast) Regulation, the Lugano Convention, and the 2005 agreement between the EU and Denmark in respect of judgments covered by the 2010 HNS Protocol.

Polar Code now in force.

The IMO Polar Code came into force on 1 January 2017 for new vessels constructed on, or after, that date. Older vessels must satisfy the Code’s requirements by their first intermediate or renewal survey after 1 January 2018, whichever occurs first.

The Polar Code applies to vessels operating in polar regions and prohibits: discharge into the sea of oil or oily mixtures from any vessel; discharge into the sea of noxious liquid substances, or mixtures containing such substances; discharge of sewage and garbage unless in accordance with the requirements of the Polar Code and Annexes IV and V respectively of MARPOL.

 

IMO introduces new measure to control greenhouse gas emissions from shipping.

 

 

At the 70th meeting of its Marine Environment Protection Committee, at the end of October, the IMO  agreed amendments to chapter 4 of annex VI of MARPOL which are expected to enter into force on 1 March 2018, under the tacit acceptance procedure. They add a new Regulation 22A imposing an obligation on ships of 5,000 gross tonnage and above to collect consumption data for each type of fuel oil they use, as well as other, additional, specified data including proxies for transport work. The data will be reported to the Flag State who will issue the ship with a certificate of compliance and pass the data on to the IMO. The data will enable IMO to make future decisions about controlling greenhouse gas emissions from international shipping.

Other regulations are amended to cater for the new requirement, including those related to certificates, surveys and port State control.

Ballast Water Convention

It is now clear that the IMO 2004 Ballast Water Convention (aimed at preventing undesirable beasties and other things being transported across the world and given a new lease of life elsewhere) will enter into force on 8 September 2017, having achieved the necessary number of ratifications. It sets two standards for systems, D1 (exchange) and D2 (treatment). Essentially all newbuilds will have to have systems complying with D2 after 8 September. All existing vessels covered by the Convention will have to comply with D1 from that date, and with D2 from the date of the next IOPP certificate renewal. The UK government is said to be drawing up a scheme for deferral in deserving cases: but don’t hold your breath.

Details of the coming into force of the Convention here and here.

What’s in a name? From DECC to DBEIS to OGA.

On 1 October 2016 the Energy Act 2016 (Commencement No.2 and Transitional Provisions) Regulations 2016 (the “Regulations”) will bring into force most of the sections of the Energy Act  2016 which relate to oil & gas operations. Various powers will be transferred from the former Department of Energy and Climate Change (‘DECC’) – which became the Department for Business, Energy & Industrial Strategy (‘DBEIS’) over the summer – to the Oil and Gas Authority (‘OGA’). The powers transferred will be the licensing and regulatory powers, and decommissioning powers, under the Petroleum Act 1998, as well as certain powers relating to assessment of offshore tax liability. DBEIS remains the principal environmental regulator for the offshore oil and gas industry and the changes should not materially affect the operation of the Offshore Safety Directive Regulator (‘OSDR’), responsible for overseeing industry compliance Offshore Safety Directive 2013. The OSDR is a partnership between the Health and Safety Executive and DBEIS.

Tomorrow the movie ‘Deepwater Horizon’ opens worldwide. A must-see for all concerned with offshore oil and gas operations.

Brexit and the 2001 Bunker Oil Pollution Convention.

 

Another legislative casualty of the EU referendum will be the UK’s implementation of the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention). This was done by inserting s.153A into the Merchant Shipping Act 1995, pursuant to The Merchant Shipping (Oil Pollution) (Bunkers Convention) Regulations SI 2006/1244. As this secondary legislation was made pursuant to the Secretary of State’s powers under s.2(2) of the European Communities Act 1972, it will fall away when the Act is repealed at the culmination of the withdrawal process. Section.153A will then cease to have effect.

 

The EU Referendum. Part Three. Losing our Directives?

 Since 2000 the EU has become increasingly active in the maritime sphere as regards safety and the environment. This has led to a series of Directives, set out below, which will cease to have effect under the implementing statutory instruments in the UK on repeal of the European Communities Act 1972.

First off, there is the series of Directives generated under the third maritime safety package, known as ERIKA III, which entered into force on 17th June 2009.

–  Directive 2009/21/EC on compliance with flag state requirements

– Directive 2009/15/EC and Regulation (EC) No. 391/2009 on common rules and standards for ship inspections and survey organisations

–  Directive 2009/16/EC on port State control

– Directive 2009/17/EC establishing a Community vessel traffic monitoring and information system

– Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector

– Directive 2009/20/EC on the insurance of shipowners for maritime claims

This gives Member States the power to expel from their ports vessels which do not have a certificate showing liability for maritime claims up to the limits in the 1976 LLMC as amended by the 1996 Protocol.

Erika III also produced a Regulation.

Regulation (EC) No. 392/2009 on the liability of carriers of passengers by sea in the event of accidents. This brought the 2002 Protocol to the Athens Convention into force within the EU in 2012. The UK has ratified the Protocol and on 28 May 2014 brought it into domestic law through a statutory instrument The Merchant Shipping (Convention Relating to the Carriage of Passengers and their Luggage by Sea) Order 2014 deriving from the powers conferred by sections 183(4) and (6) and 184(1) and (3) of the Merchant Shipping Act 1995

 Other notable Directives in the maritime sphere are

Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on shipsource pollution and on the introduction of penalties for infringements

This criminalises ship source pollution in cases of ‘serious negligence’ and was the subject of a decision of the ECJ in 2008 in the Intertanko case C-308/06 in which it decided that the legality of the Directive could not be assessed in the light of either MARPOL or UNCLOS.

Directive 2012/33/ on the Sulphur Content of Maritime Fuels.

This came into effect on 1 January 2015 and requires ships sailing in the English Channel, the North Sea and the Baltic Sea (the North European emission control area) to use bunker oil with a maximum 0.1% sulphur or apply alternative methods in order to achieve the same effect.

Directive 2013/30/EU on the safety of offshore oil and gas operations and amending Directive 2004/35/EC

This was the EU response to the ‘Deepwater Horizon’ blowout in 2010. The Directive aims to prevent the occurrence of a ‘Deepwater Horizon’ in offshore installations in the EU but also addresses, in part, the response should such an incident occur, through three provisions. First, art. 38 extends the territorial scope of the Environmental Liability Directive 2004 (the ‘ELD’) from coastal waters to waters within the exclusive economic zone or the continental shelf of Member States, up to 370 km from shore. Second, art.7 requires Member States to ensure that the licensee is financially liable for the prevention and remediation of “environmental damage” – i.e. damage falling within the ELD – caused by offshore oil and gas operations carried out by, or on behalf of, the licensee or the operator. Third, art.4 requires Member States “to require the licensee to maintain sufficient capacity to meet their financial obligations resulting from liabilities for offshore oil and gas operations.” and, when granting or transferring licenses, to take due account of, inter alia, “the applicant’s financial capabilities, including any financial security, to cover liabilities potentially deriving from the offshore oil and gas operations in question including liability for potential economic damages where such liability is provided for by national law”. These provisions came into effect on 19 July 2015.

It is, of course, open for Parliament to provide for the continuation of the statutory instruments implementing these Directives.

The House of Commons Briefing Paper of 30 June suggests (p14):

There might be some over-arching legislation saying, for example, that all UK laws implementing any EU Directive were repealed (perhaps with specified exceptions); or that they would all remain in force (again perhaps with exceptions). If the ECA were repealed, any secondary legislation based on s2(2) ECA would need to be saved from lapsing if it was to continue in force. EU Regulations, which are directly applicable (i.e. they do not need further implementation in the UK to come into force) will cease to have effect if the UK were to repeal the ECA.

There is no reason why EU-based UK law could not remain part of UK law, but the Government would have to make sure it still worked without the UK being in the EU.

The Government would probably come up with a mechanism for allowing changes to be made to secondary legislation (Statutory Instruments) made under the ECA or other ‘parent’ acts. There could also be general amendments, such as replacing references to ‘the Commission’ or ‘Council’ with references to ‘the Secretary of State’.

The devolved legislatures would have to deal with EU legislation they have transposed into Scottish, Welsh or Northern Irish laws. It would also be necessary to amend the relevant parts of the devolution legislation, which might require a Legislative Consent Motion under the Sewel Convention.

UK Referendum Result. Implications for shipping law?

As a result of the vote to leave the EU,  the UK will cease to be a member of the EU probably around November 2018 after the new prime minister has invoked article 50 and Parliament has repealed the European Communities Act 1972. How will this affect shipping law?

Substantively, not a great deal. English dry shipping is based on common law, and a few key statutes, such as COGSA 1992, and the implementation of international carriage conventions through domestic legislation – such as COGSA 1971 with the Hague-Visby Rules. Nothing European here, so no change.

With  wet shipping, the CLC and the Fund are part of our national law through domestic law implementing international conventions. Similarly,  the Wreck Removal Convention, the Salvage Convention, and the 1976 Limitation Convention. Again, nothing European here, so plus ca change.

However, procedurally,  we are very much affected by European legislation – and this is something we shall return to in a later post. As a starting point, bear in mind the two sources of EU legislation.

  • Directives which are implemented by and Act of Parliament. On our leaving the EU it will be up to Parliament to decide whether to repeal or amend the implementing legislation.
  • Directives which are implemented as statutory instruments pursuant to s.2 of the European Communities Act 1972. These will cease to be a part of national law once the European Communities Act 1972 has been repealed. If we want to keep them we need to enact them as part of our domestic law.
  • Regulations which have direct effect. These will cease to be a part of national law once the European Communities Act 1972 has been repealed. If we want to keep Regulations we need to enact them as part of our domestic law.

Greenhouse gas and shipping. Still no emissions targets for global shipping.

Shipping and aviation are both excluded from the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change. The Protocol left it to the IMO to pursue measures to reduce greenhouse gas emissions from shipping. At its meeting on 21/22 April the IMO’s Marine Environment Protection Committee (MEPC) approved mandatory requirements for ships to record and report their fuel consumption. However, a proposal by the Marshall Islands to set emissions targets for global shipping by 2017, with implementation in 2018, has been deferred until the next MEPC meeting in October 2016.

“Deepwater Horizon”. Economic loss claims from US offshore moratorium dismissed.

On March 10, 2016, Judge Carl Barbier ruled that economic loss claims resulting from the moratorium on offshore drilling imposed by the US government after the ‘Deepwater Horizon’ blowout in 2010 cannot be brought against BP , as the responsible party under the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. § 2702(a). The losses resulted from the perceived threat of discharge from other wells, rather than from discharge or the substantial threat of discharge from the Macondo well.

http://www.americanmaritimecases.com/assets/March2016/Deepwater-March2-.pdf