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Gard News 196, November 2009/January 2010

ERIKA III seeks to prevent accidents at sea and to improve regulations available to manage the consequences of accidents if they do happen.


During the last decade, and following the ERIKA incident, the European Union has become increasingly active with respect to maritime policy and legislation.  This has led to initiatives including the ERIKA I and ERIKA II maritime safety packages.  Recently the third maritime safety package, known as the ERIKA III, was adopted by the European Parliament and entered into force on 17th June 2009.  However, with respect to the directives the legislation will only enter into force in the EU member states once they are implemented into national law of the members states and with respect to the regulations once their agreed application date has passed.

The stated objective of ERIKA III is twofold: on the one hand preventing accidents at sea, and on the other improving the regulatory framework available to manage the consequences of accidents if they do happen, with a focus on the damaged parties.  With these objectives in mind, seven topics have been addressed in directives and/or regulations, namely:
- the quality of flags
- classification societies
- port state control
- traffic monitoring
- accident investigation
- liability of carriers (Athens Convention)
- insurance

Directive 2009/21/EC on compliance with flag state requirements
The purpose of this directive is to ensure that the flags of EU countries have a good standing, and to avoid that any are black or grey listed (Paris MOU).  To achieve this, the directive requires EU flag states to ensure that all vessels flying their flag conform to international safety standards, to ensure that the situation is rectified on board vessels flying their flag which have been detained by port state, ensure that the flag states have a certified quality management system in place and ensure that certain information regarding vessels flying their flag is available to increase transparency in shipping.

Directive 2009/15/EC and Regulation (EC) No. 391/2009 on common rules and standards for ship inspections and survey organisations
This directive and regulation aim to improve the inspection procedures for classification societies by ensuring that satisfactory quality management systems are in place and that classification societies which are found not to perform to standard can be effectively penalised.  Improved inspections by the classification societies should, therefore, ultimately result in improved standards of vessels irrespective of flag, and thus complement the above-mentioned directive addressing flag states.

Directive 2009/16/EC on port State control
The objective of this directive is to improve the effectiveness of port state control in the EU, by ensuring that all ships calling the EU are inspected at regular intervals, which vary with the risk profile of the vessel.  This is in contrast to the current goal of each member state inspecting 25 per cent of vessels, and can therefore be seen as a step to better co-ordinate the port state control efforts within the EU.  The directive further provides stricter sanctions for vessels found to have deficiencies, including publishing a black list of companies operating sub-standard ships (which will supplement the black list of flags).  The directive also contains provisions to improve the qualifications and training of inspectors.

Directive 2009/17/EC establishing a Community vessel traffic monitoring and information system
This directive contains provisions both to avoid maritime accidents and to mitigate damage in cases where a vessel is in need of assistance.  With respect to the former, the directive contains provisions to improve the knowledge of maritime traffic by improving both data collection and the sharing of data by EU member states.  Furthermore, there are provisions to ensure increased use of AIS by fishing vessels, allowing improved traffic monitoring.  With respect to the latter, the directive contains provisions to try and ensure that places of refuge are available when needed and appropriate by designating the appropriate authority to address the issue, gathering relevant geographic and socio-economic information of the coastline to determine suitable locations, set out criteria for the use of places of refuge and inform the relevant people/organisations.

Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector
This directive seeks to incorporate the principles laid down by the IMO regarding investigations of maritime accidents into EU law, the aim of the investigation being to learn from the accidents that do happen to avoid similar incidents in the future.

Regulation (EC) No. 392/2009 on the liability of carriers of passengers by sea in the event of accidents
This directive aims to supplement and extend the provisions of the Athens Convention.1 The regulation extends the provisions of the Athens Convention to vessels engaged in domestic voyages, extends certain liability provisions to mobility equipment (e.g., automobiles) and provides that carriers shall make an advance payment to cover immediate economic needs where the death of or personal injury to a passenger is caused by a shipping accident. 

Directive 2009/20/EC on the insurance of shipowners for maritime claims
This directive requires all ships flying the flag of an EU member state and all ships calling a port within the EU to have compulsory liability insurance in place up to the vessel's limit under the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims.2  At present ships are not required to have a general liability insurance in place, although liability insurance covering specific risks are required by different IMO conventions, such as the Civil Liability Convention, 1992, dealing with oil pollution from tankers3 and the Bunkers Convention 2001 dealing with bunker pollution from non-tankers.4 However, there can be little doubt that the vast majority of vessels, and certainly all Gard Members' vessels, will already have liability insurance in place.  It is expected that the Certificate of Entry issued by P&I Clubs will suffice as evidence of the compulsory insurance required by this directive.

The international Group of P&I Clubs has closely monitored the developments of the package and provided significant input to the process, particularly with respect to the directive on compulsory insurance, the regulation on the liability of carriers of passengers and the directive on traffic monitoring and information.

Read more about ERIKA III
For further details see Gard P&I Member circular No. 03/09, "Third EU Maritime Safety Package" (available at www.gard.no) or the European Commission's web page at http://ec.europa.eu/transport/maritime/safety/third_maritime_safety_package_en.htm, which includes the full text of the directives and regulations.

1 See article "The revision of the Athens Convention seen from the P&I Clubs' point of view" in Gard News issue No.169.
2 See article "1996 Protocol to the 1976 Limitation Convention comes into force" in Gard News issue No. 174.
3 The CLC 1992 applies to tankers carrying persistent oil in bulk.
4 The bunker convention applies to ships which are not subject to the CLC 1992, see footnote 3 above.

Gard News 196, November 2009/January 2010

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