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Criminalisation Developments in EU, Canada and other locations

Criminalisation Developments in EU, Canada and other locations. INTERNATIONAL SALVAGE UNION 8 March 2006 Peter M. Swift. Spain rejects Mangouras appeal Presentation to ISU 2004. Places of Refuge. A Solution Waiting to be Implemented Presentation to ISU 2004

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Criminalisation Developments in EU, Canada and other locations

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  1. Criminalisation • Developments in EU, Canada and other locations INTERNATIONAL SALVAGE UNION 8 March 2006 Peter M. Swift

  2. Spain rejects Mangouras appealPresentation to ISU 2004

  3. Places of Refuge A Solution Waiting to be Implemented Presentation to ISU 2004 Erika II Package – December 2000 Requires Each Member State to Draw up Emergency Plans for Hosting Ships in Distress in Places of Refuge

  4. Port Reception Facilities • Presentation to ISU 2004 • An International Failure: • - Inadequacy of Reception of Annex I wastes still an issue for Tanker Owners • - States turning to policing measures w/o first providing the solution (Mediterranean aerial surveillance, Baltic oil tagging) – must return to the source of the problem, not end of pipe solutions • A European Concern: • Implementation of Directive not uniform – ports allowed to implement w/o direction from state leading to different interpretation of: • Capability of ship to reach next port w/o need for discharging waste • Fee systems increased beyond previous levels • Over-regulation of facilities causing closures, e.g. Italy

  5. Criminalisation ”Creeping” Criminalisation is a Concern for all in Shipping

  6. Criminalisation A two-fold concern: • Unfair treatment / human rights and • Counterproductive nature of other measures

  7. Criminalisation • Vision for Tanker Industry: to be recognised as ”responsible” and to be ”respected” • We have stated and stand by our ”Zero Tolerance” for illegal acts • We sympathise with the victims of shipping accidents and support fully the provision of proper compensation

  8. Criminalisation Criminal sanctions for ship-sourced pollution: • Industry objects to criminalising accidental pollution AND condemns illegal discharges • Need clarity in law AND consistency with international law • Penalties should be proportionate AND have parity with other similar offences (ashore) • Suspects must be treated fairly AND in accordance with basic human rights • States should comply with their obligations to provide reception facilities AND places of Refuge

  9. Criminalisation Unfair treatment and violation of human rights • Too many cases of unlawful detentions after shipping accidents • Welcome for the joint IMO/ILO Group on Fair Treatment of Seafarers • Too many other unjust practices – unjustified fines, denial of shore leave, prohibition of terminal access and more

  10. Criminalisation Counterproductive consequences not recognised: • Destroys “no blame” cultures • Discourages openness and frank reporting • Curtails surveyors’ reports – detracts from ”good practice” • Deters salvors in circumstances when we need them most • Deflects focus for proper casualty investigation and denies benefits of same • Destroys and damages morale of seafarers and others • Dissuades new recruits and accelerates departure of experienced staff • Drives responsible people and companies from the business Is this what the legislators and society are seeking ?

  11. Criminalisation What is to be done ? PLENTY !

  12. Criminalisation What is being done ? Controlling illegal discharges • Reception facilities: Industry-government forum (Industry, IMO and EMSA) • Industry Guidance on Use of Oily Water Separators and Completion of Oil Record Book • Preparing Guide for treatment of engine room wastes – including means to limit generation of waste, better management of waste, better design and sizing of equipment, (revisions to Marpol), and additional training

  13. Criminalisation What is being done ? Industry-wide efforts to: • Remove the threat of criminal sanctions for accidental discharges & • Maintain the Supremacy of International Law

  14. Criminalisation Removal of the threat of criminal sanctions for accidental discharges & Maintenance of Supremacy of international law • EU: Action in the High Court in London to test the validity of the 2005 EU Directive on Criminal Sanctions for Ship-Source Pollution and seeking a reference to the European Court of Justice – criminalises accidental pollution, conflicts with existing treaty law obligations under Marpol and UNCLOS, and fails to satisfy the principle of legal certainty • CANADA: Monitoring of Amendments to Migratory Birds and Environmental Protection Acts – conflicts with Marpol and UNCLOS obligations, and includes an assumption of guilt before trial for accidental pollution

  15. Criminalisation Conclusions: • We are not perfect AND are not complacent • Criminalisation concerns us all AND is NOT THE SOLUTION • Fair treatment (especially after an accident) AND the detrimental consequences of criminal law MUST be spelled out clearly This is NOT about confrontation – but about reality !

  16. www.intertanko.com www.shippingfacts.com www.themaritimefoundation.com

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