Explanatory Memorandum to COM(2000)142-2 - Amendment of Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) - Main contents
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| dossier | COM(2000)142-2 - Amendment of Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and ... |
|---|---|
| source | COM(2000)142  |
| date | 21-03-2000 |
Since Directive 95/21/EC was adopted, substantial efforts have been made - particularly under the auspices of the Paris Memorandum of Understanding on Port State Control - to improve the uniformity and efficiency of inspection procedures. However, important disparities still remain within the Community and ships that pose a high risk to the environment are not inspected with sufficient rigour when they call at European ports.
The reasons that have led the Commission to propose amending the Directive include the following:
- several Member States are still failing to comply with the 25% threshold laid down in the Directive for inspections of individual ships;
- the target factor system developed in the framework of the Paris MOU and made mandatory by the Directive is not being applied in a satisfactory manner;
- examination of the reports on the inspections carried out before the sinking of the Erika seem to show that the expanded inspections conducted in application of the Directive were not always performed with the necessary rigour. Furthermore, it has not been possible from this examination to verify the extent to which the guidelines in Annex V were followed and what checks were made.
The Commission therefore proposes a number of measures designed to improve and strengthen the inspection regime laid down in the Port State Control Directive.
The following amendments are proposed:
Contents
- 1. Banning manifestly sub-standard ships from European waters
- 2. Obligation to inspect ships posing a high risk to maritime safety and the marine environment
- 3. Follow-up to the result of inspections
- 4. Informing the flag State and the classification societies
- 5. Verification of the financial guarantee covering pollution risk
- 6. Transparency of information on the ships inspected or detained in accordance with the Directive
- 7. Monitoring application of the Directive and assessing the performance of Member States
The Commission considers it unacceptable that certain ships with a history of posing a manifest danger to maritime safety and the marine environment continue to sail in Community waters. The general public can only interpret this as demonstrating the ineffectiveness of the on-board inspection of ships performed by the port States.
It considers that a clear and strong message must be sent to the ships' operators and to all those - in particular the flag States or the classification societies - who, by their behaviour or inaction, contribute to the considerable risks to safety and the marine environment.
The Commission therefore proposes banning such ships from the European Union. This concerns ships in the risk categories referred to in Article 7 and Annex V to the Directive. i Ships of this category that are old (more than 15 years), that may be considered as 'past offenders' (detained more than twice over the last two years), and that fly the flag of a State on the 'black list' of detentions established by the Paris MOU should no longer be admitted to Community ports.
The Commission has drawn up guidelines for the application of this measure, setting out the procedures to be followed in imposing a ban and also providing the possibility to lift the ban if it can be shown that the ship is no longer a safety or environmental hazard. The Commission will publish the list of banned ships every six months.
Directive 95/21/EC, as it stands, does not stipulate an obligation to inspect a ship. Whatever the potential hazard posed by a ship, the decision to inspect is always initially based on a prior selection made by a port State inspector on the basis of his professional judgement. The target factor introduced by an amendment to the Directive on 19 June 1998 is an important step towards harmonising the selection criteria. Nevertheless, the Commission considers that the inspector's margin of discretion in selecting the ships to be inspected should in certain cases be considerably reduced in the interests of achieving truly uniform and efficient practices.
The Commission therefore proposes making inspection obligatory in the following cases:
(a) -If the target factor exceeds a certain limit
The targeting system established by the Directive and the Paris MOU is not working entirely satisfactorily. Ships with the highest target factor are not in practice systematically assigned the highest priority.
The Commission proposes including in Article 5 a specific obligation to inspect systematically any ships whose target factor exceeds 50, according to the procedure laid down in the Paris MOU, each time they call at a port of the European Union. The figure of 50 corresponds to ships posing a high risk. However, according to the estimates made in the context of the Paris MOU based on the number of ships inspected in 1999, the percentage of ships affected is likely to be less than 2.5% of the vessels recorded in the Sirenac database of the Paris MOU. i
(b) - If the ships concerned are classed in a category justifying expanded inspection
The provisions of the Directive relating to the expanded inspection regime for 'high risk' ships gives inspectors too wide a margin of discretion to decide which ships to inspect and what is to be included in the inspection. Furthermore, recent events have shown that the structural defects affecting certain types of ships and oil tankers in particular may lead to accidents with dramatic consequences for the environment. Without questioning the basic responsibility of the classification societies to detect such faults, it is important that the port State authorities equip themselves with the means to assess the satisfactory structural condition of a ship (particularly as regards corrosion of the tanks).
The Commission therefore proposes changing the expanded inspection regime for ships referred to in Article 7 and in Annex V to the Directive as follows:
- Article 7 is amended to establish a clear obligation to inspect the ships in question. Consequently, whenever one of these ships calls at a port of the European Union after a period of 12 months, it must without exemption be subjected to an expanded inspection. The existing rule, according to which the ship may in the intervening period be subject to a normal inspection or a more detailed inspection, is maintained. However, the 25% threshold stipulated in Annex V is applicable to expanded inspections carried out in the framework of Article 7 (and to any other inspections provided for by the Directive).
- The optional guidelines in the Directive are made mandatory: the inspection must at least cover the general or specific checks for the categories of ship concerned. However, the proposal allows the possibility of not carrying out certain checks if they are not practically feasible (e.g. inspection of the tanks on a loaded oil tanker) or if they are likely to create particular hazards (e.g. explosion) for the ship, its crew or the port.
- With regard to oil tankers (item 2 of the current Annex V-B), structural matters are addressed only in the form of a check of the survey report. The Commission believes it is essential that the structural inspection should encompass more than a check of the documents on board and be based on a direct, visual examination by the inspector of the structural condition of the ship. However, as cargo tanks are not normally accessible during a port call, the inspector must carry out a visual examination of at least one of the ballast tanks in order to gain a general impression of its possible degree of corrosion. If the ship does not have segregated ballast tanks, the inspector should attempt to carry out such an assessment on the basis of any tank or empty space normally accessible.
- An advance notification obligation is introduced (new section B of Annex V) to facilitate the subsequent conduct of the inspection once the ship enters port. In principle, an expanded inspection must be prepared in advance. The shipowner or ship's master will be obliged to communicate certain operational information (e.g. duration of the call, state of the ballast and cargo tanks, operations planned during the call, etc.) directly to the inspector 48 hours before arrival at the port (or from the port of departure).
- Specifically with regard to oil tankers, the age from which expanded inspections have to be carried out will be reduced to 15 years (currently 20 or 25 years depending on the type of tanker in accordance with the progressive phase-out dates laid down in Regulation 13G of the MARPOL Convention). The vessels concerned are single hull tankers, whether or not they have segregated ballast tanks.
The follow-up of inspections between ports is not ideal. Above all, it is extremely difficult to ascertain, from the information in the Sirenac system, which parts of the ship inspected were checked in the previous port or ports. As a result, there is a risk that the inspection authority in a given port will inspect again the parts of the ship that have already been checked in the previous port. In order to avoid the possibility of such duplications and to optimise the overall cost-effectiveness ratio of the port State control system, the Commission proposes making it obligatory to state which parts of the ship have been inspected in the inspection report (a copy of which is kept on board and must be examined by the inspector of the following inspection port).
Under Directive 95/21/EC as it stands, the flag State and the classification societies are informed only of the detention of a ship by the port State inspection authorities. However, information on completion of each inspection would be extremely useful in permitting more efficient monitoring of the evolution (and possible deterioration) of the condition of a ship by the administration of the flag State, or by the classification society acting on its behalf. Consequently, the Commission proposes amending Article 8 of the Directive to stipulate the transmission of a copy of the inspection report to the flag State and to the classification society concerned.
As the Erika accident has shown, oil tankers can cause considerable damage in the event of an oil spill, so that appropriate cover of these risks is extremely important. The 1969 International Convention on Civil Liability for Oil Pollution Damage, and the 1992 Protocol relating thereto, stipulates that the owner of a ship registered in a State party to the Convention and carrying more than 2 000 tonnes of oil in bulk must take out an insurance or other financial guarantee to cover its liability for pollution damage. The Commission proposes adding these documents to the list of certificates in Annex II to the Directive to be verified by the inspectors. Their absence should be taken as justifying a more detailed inspection of the ship and constitutes a ground for detention.
6. Transparency of information on the ships inspected or detained in accordance with the Directive
The aim of Article 15 is to publish certain information on the ships detained in the ports of the European Union and in this way to punish operators who bear part of the responsibility for failure to comply with safety standards. The existing Directive provides for publishing the name of the ship's operator and the classification society. However, other players are implicated in the phenomenon of sub-standard shipping, in particular the cargo owners deciding to charter a particular ship: shipowners of 'convenience' exist because there are charterers who care little about the quality of the ships they charter.
The other objective is to give those who take the decisions (charterers, insurers, etc.) and the European public a fuller and more user-friendly picture of the inspections carried out in Community ports. To this end, it is important that additional information on more detailed inspections should be made available both by the port State authorities (expanded inspections within the meaning of Article 7) and by the classification societies (special surveys). There is also a need for information to be made available regarding the follow-up by the port State authorities or the classification societies to a detention ordered under the Directive.
Consequently, publication of the following information is proposed:
- the identity of the charterer and the type of charter (voyage or time charter). This obligation will concern only ships carrying bulk liquid or solid cargo. In the case of packaged goods, identification of the many lots concerned would pose major practical problems;
- information on the most recent expanded inspection performed in the context of port State control, and the most recent 'special survey' carried out by a classification society;
- list of measures taken following a detention (deadlines set for repairs, etc.), whether by the port authorities or by the classification societies.
Article 17 of Directive 95/21/EC stipulates that Member States must provide certain information on the number of inspectors allocated to port State control and the number of individual ships entering their ports in a representative calendar year.
This information enables the Commission to verify the compliance with the 25% threshold for inspections laid down in Article 5 i, but is not enough to enable it to carry out a detailed examination of the proper application of the Directive's provisions, which is its duty under the Treaty, and to initiate, where necessary, infringement proceedings against defaulting Member States. Consequently, possible lax practices in certain Community ports are not detected and the risks of varying safety standards and distortion of competition between ports persist.
The Commission therefore proposes increasing the frequency for transmission of this data (annually rather than every three years as at present) and adding new items to the list of information to be transmitted to the Commission. A new Annex to the Directive is added, requiring Member States to provide detailed information to the Commission on the movements of ships in ports, classified according to various criteria (age, flag, size, etc.).