July 23 2003
The 1999 Erika accident and subsequent oil spill in the Bay of Biscay prompted the European Commission to develop a series of new legal initiatives commonly referred to as the the 'Erika 1 and 2 measures'. The measures were designed to reduce the likelihood of future maritime accidents and oil spills. However, they were still not adopted when the Prestige sank, almost three years after the Erika, with the resulting oil spill fouling the Galician coast. This prompted the European Commission to accelerate the procedure. Though not a member of the European Union, Norway is still required to adopt the Erika 1 and 2 measures.
One of the key provisions of the Erika 1 measures is the Increased Port State Control Directive (2001/106/EC) which introduces amendments to the Port State Control Directive (95/21/EC). The Norwegian Maritime Directorate has proposed amendments to existing laws to meet the requirements of the new directive. Parliament approved the amendments in May 2003.
While implementation is a certainty, effective enforcement of the Increased Port State Control Directive will be a challenge at both a national level and throughout the European Economic Area (EEA).
The directive's main objective is to reduce the risks to maritime safety and the environment through increased port state control. Under the directive, port authorities must refuse certain ships access to a port due to their poor condition, flag and/or history, unless special considerations apply.
Access must be refused if the ship in question (i) has been detained more than twice in the course of the preceding 24 months in a port of a state signatory of the Paris Memorandum of Understanding (MOU) and flies the flag of a state appearing on the blacklist published in the annual report of the MOU, or (ii) flies the flag of a state described as 'very high risk' or 'high risk' in the blacklist and has been detained more than once in the course of the preceding 36 months in a port state signatory of the MOU.
Another important change introduced by the directive is the possibility for an expanded inspection of:
The same applies if such ships have a target factor of seven or more. A ship's target factor represents the priority for inspection. A high target factor is therefore indicative of a higher priority. The overall target factor is given by the sum of the applicable target factor values as defined within the framework of the MOU. The expanded inspection regime will follow mandatory guidelines to achieve uniform practices.
The possibility of refusing port access to a seaworthy ship marks a significant departure from previous practices, in which maritime interests were generally favoured over environmental protection, such as in Articles 211 and 220 of the United Nations Convention on the Law of the Sea. As a result, the Norwegian Law of Seaworthiness must be amended.
The Maritime Directorate has proposed to Parliament that the directive be implemented by amending both the Law of Seaworthiness and the Norwegian Regulation on Port State Control.
The Law of Seaworthiness provides the legal basis for refusing access to ships that are unseaworthy when arriving in Norwegian territorial waters.
The right to refuse access to certain categories of ship even though they
are seaworthy implies an alteration of the traditional legal threshold for intervention
under the Law of Seaworthiness. The directive gives the Norwegian authority
a limited discretion to consider the reasonableness of the refusal of access.
This is represented in the proposed legal draft, under which the Norwegian authority
may decide to refuse access by regulation. However, the proposed regulation
uses the same parameters as the directive.
The implementation will lead to a change in character of the Law of Seaworthiness. However, the real challenge will be effective enforcement through EEA-wide cooperation between port authorities, both on monitoring systems and on uniform practices.
The goal of the directive is not to transfer the responsibilities of the flag states to the port states. The primary responsibility for control remains with the individual flag state. However, the demand for increased control and enforcement makes it necessary to redefine the traditional role and enforcement methods of Norway's port state control authorities. It may also be argued that, in effect, the directive will lead to a certain shift in control. Further, a vast increase in administrative costs will occur. In Norway, for example, port control must be strengthened to a level far beyond that of today. Effective enforcement is therefore dependent on increased funds.
The effectiveness of the measures will be highly dependent on whether uniform practices can be achieved. As the right to refuse access may be based on inspections undertaken in other member states, uniform practices are of obvious importance. One risk is that ports of convenience may develop, which have less stringent enforcement. The directive may therefore give rise to competition law problems that must be monitored closely.
Finally, the directive's ultimate effectiveness is dependent on:
Measures for transparency and information flow have already been put in place through technological development and the use of onboard equipment, which enable voyage data to be recorded. The directive makes these systems mandatory within five years for cargo ships built before July 1 2002. Another example is Directive 2002/59/EC, which establishes an EU vessel traffic monitoring and information system, which must be implemented by EU member states by February 5 2004 at the latest. Further, the European Commission has already introduced a common vessel management system called SafeSeaNet, which includes the establishment of a European database and network between EU member states for exchanging real-time data. Lastly, according to the directive, EU member states must provide the commission annually with detailed information with regard to the results of the port state control in the preceding year. Norway may also choose to implement some of these directives and systems.
For further information please contact Gaute Gjelsten or Trond Eilertsen at Wikborg, Rein & Co by telephone (+47 22 82 75 00) or by fax (+47 22 82 75 01) or by email (firstname.lastname@example.org or email@example.com).
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