PURPOSE: i) ratification by Member States on behalf of
the Union to the Protocol of 2010 to the International Convention
on Liability and Compensation for Damage in connection with the
Carriage of Hazardous and Noxious Substances by Sea ii) accession
by Member States to the said Protocol with the exception of aspects
related to judicial cooperation in civil matters.
PROPOSED ACT: Council Decision.
ROLE OF THE EUROPEAN PARLIAMENT: Council may adopt the
act only if Parliament has given its consent to the act.
BACKGROUND: the adoption and entry into force of
international rules on liability for non-contractual damages
arising from the carriage of hazardous and noxious substances (HNS)
by sea is crucial in view of the significant share HNS cargo
represents in maritime freight transport worldwide.
The International Convention on Liability and
Compensation for Damage in Connection with the Carriage of
Hazardous and Noxious Substances by Sea, ('1996 HNS Convention')
was aimed at ensuring adequate, prompt and effective compensation
of persons who suffer damage caused by spills of hazardous and
noxious substances, when carried by sea.
The Protocol of 2010 to the 1996 HNS
Convention contained necessary
amendments to address problems identified in the 1996 HNS
Convention. The 2010 Protocol and the provisions of the Convention,
are to be read, interpreted and applied together as one single
instrument.
Neither the 1996 HNS Convention, nor the 2010 Protocol
to the HNS Convention has entered into force. The latter has no
contracting parties to it to this day.
The 2010 Protocol, and thereby the consolidated 2010
HNS Convention, will enter into force 18 months after the date on
which at least 12 States, 4 of which with no less than 2 million
units of gross tonnage each, have ratified it, and the relevant
data on contributing cargo have been submitted to the IMO
Secretary-General showing no less than 40 million tonnes of cargo
contributing to the general HNS account received in total in those
States during the preceding calendar year.
The main changes from the 1996 HNS Convention to
the 2010 HNS Convention are:
- excluding packaged HNS from the definition of
contributing cargo to the HNS Fund, while damage caused by packaged
HNS remains covered by the two-tier system of compensation
established in the Convention;
- increasing the liability limits of the ship owner for
ships carrying packaged HNS in order to accommodate better the
exclusion of packaged HNS as contributing cargo to the HNS
Fund;
- making the physical receiver of LNG the responsible
party for payment of the relevant contributions to the HNS Fund,
unless there is a different agreement between the titleholder and
the receiver;
- making payment of compensation by the HNS Fund in case
of a covered incident conditional upon the fulfilment by the State
concerned of its obligation to submit reports on contributing
cargoes for all years prior to the incident
Given that issues related to judicial to judicial
cooperation in civil matters do not apply to Denmark, the Council
must adopt two separate decisions.
IMPACT ASSESSMENT: whilst no formal impact assessment
was required, several options have been examined and weighed. The
Commission considers that the conclusion of the 2010 Protocol to
the HNS Convention will ensure:
- uniform application of rules on liability and
compensation in connection with accidents caused by ships carrying
HNS at sea across the EU;
- availability of sufficient funds for compensation of
victims of such accidents.
Using an international regime rather than regional
solutions for these purposes better suits the nature of shipping as
a global business.
CONTENT: under the draft Council Decision, Member
States would:
- be authorised to ratify the Protocol of 2010 with
the exception of aspects related to judicial cooperation in civil
matters. The provisions of the Convention falling within the
competence conferred upon the Union under judicial cooperation in
civil matters will be subject to a
Decision adopted in parallel to this Decision;
- agree to be bound by the 2010 Protocol within two-year
period from the entry into force of the Decision. Early adherence to the 2010 Protocol by all EU
Member States will allow the threshold for entry into force
concerning both the number of IMO Member States and aggregate fleet
required (12 States including 4 with not less than 2 million units
of gross tonnage each) to be attained.
State signature, ratification or acceptance of the
2010 Protocol nullifies any prior signature or ratification by that
State of the 1996 HNS Convention. States ratifying the Protocol
express their consent to be bound by the consolidated text of the
2010 HNS Convention, as a single, consolidated instrument for the
Convention, which will take effect once the 2010 Protocol enters
into force.
When ratifying or acceding to the Protocol of 2010,
Member States must inform the Secretary-General of the
International Maritime Organisation in writing that such
ratification or accession has taken place in accordance with this
Decision and the
Decision adopted parallel to this Decision with regard to
aspects falling within the competence conferred upon the Union in
the field of judicial cooperation in civil matters.