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

1. Criminal Liability for Oil PollutionThe 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

2. Overview • The role of INTERTANKO • The Shipping Industry’s Challenges • Oil pollution – criminal liability • The EU Ship Source Pollution Directive 2005/35/EC • Industry’s application to the English High Court • Industry’s case before the European Court of Justice

3. The Role of INTERTANKO • Provide first class advice/assist to members: Web, Weekly News, Committees, Seminars • Represent the interests of tanker operators at the IMO and other international fora, e.g. IOPC • Promote/lobby for the tanker industry to regulators and politicians, e.g. USCG, EU Commission, etc • Forum for like minded owners/operators to meet: Committees, Regional fora, annual Tanker Event

4. The strength of INTERTANKO • 252 members – operating some 2,490 tankers • 300 associate members • 27 staff lead by MD – Dr Peter Swift • Oslo, London, S’pore and Washington DC • Chairman – Mr Stephen Van Dyck • 14 committees • 4 regional panels

5. Industry’s Challenges • To meet customers and the public’s demands for a cost efficient and environmentally sensitive transportation solution • To ensure compliance with international, regional and national, and port regulations • To continuously improve safety and performance – striving for zero pollution, zero fatalities and zero detentions

6. A common understanding is needed to meet expectations Do not only think what is expected of industry but also think what industry expects of those that govern the industry. For example: • International v regional or local regulation • Good/workable v. politically motivated regulations • Balance self regulation/best practices with regulation • Respect the Shipping industry rather than being hostilite towards it • Understand the environment and conditions in which ships operatein rather than being ignorant of them • Respect seafarers as opposed to victimising them

7. INTERTANKO’s policy statement on Criminalisation • We support the investigation and prosecution of illegal discharges of oil from ships. • However, we strongly objects to criminalising accidental oil pollution and to treating seafarers involved in accidents as criminals • Any criminal offence of pollution from a ship must be clearly defined and in accordance with international law. • Any penalties imposed on someone found guilty of such an offence must be proportionate. • There should also be parity with any penalties imposed for pollution from land based sources. • Any suspects must be treated fairly, impartially and in accordance with international law on human rights (and observe the IMO guidelines on the fair treatment of seafarers)

8. INTERTANKO policy statement on Criminalisation (cont) Additionally • INDUSTRY expects coastal states to comply with their existing treaty law obligations to provide adequate, affordable, oil waste reception facilities. • In order to safeguard the lives of seafarers and the marine environment, INDUSTRY urges coastal states to ensure proper contingency plans are put in place so that adequate assistance and if necessary a place of refuge can be made available to a ship in distress.

9. 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

10. 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

11. 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 Contrasting MARPOL with the Directive

12. 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

13. 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

14. Seeking a legal review Possible forums – issues of locus standi: International Tribunal for the Law of Seas? X European Court of Justice (ECJ)?  Access to the ECJ: • UK precedent (IATA cases) that an NGO could commence administrative proceedings in the High Court seeking judicial review and requesting a refence to the ECJ

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

16. 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 English Proceedings issued 23.12.05

17. 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

18. 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…

19. 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

20. 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?

21. The ECJ

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