’IDENTIFYING THE RESPONSIBLE PARTY FOR SHIP SOURCED POLLUTION PREVENTION AND DAMAGE’

1. ’IDENTIFYING THE RESPONSIBLE PARTY FOR SHIP SOURCED POLLUTION PREVENTION AND DAMAGE’ Sjøsikkerhetsseminaret Lysebu, 29 January 2008 Eve de Coning Stipendiat NIFS

2. Applicable law • The Ship Safety Act no 9 of 16 February 2007 (skipssikkerhetsloven), • section 1: • The Pollution Act no 6 of 13 March 1981 (forurensningsloven), section 1, 1st paragraph: ‘… protect life and health, the environment and material values by ensuring adequate ship safety and ship safety management, including the prevention of ship sourced pollution…’ ‘…protect the external environment from pollution…’

3. Background • International Law of the Sea: • Mare liberum • Exclusive flag state jurisdiction on the high seas (UNCLOS art 94.1) • UNCLOS art 91.1: • States must • ‘fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.’ • UNCTAD Secretariat report of 1981 (TD/B/C.4/220): • ‘Real owners are not readily identifiable (partly because of difficulties in identifying, partly because of lack of incentive to identify) and are therefore in a good position to take risks by comparison with owners in normal registries who are living under the eyes of a maritime administration…’

4. Registration Procedure • Registration under the Flag of Malta involves 2 stages: • A. The incorporation of a Maltese company • If the shipowner is not a Maltese citizen, he must, first of all, incorporate a limited liability company under the Laws of Malta which: • ·      must have a minimum of 2 shareholders who may be non-resident individuals or companies (there are no nationality restrictions as to shareholders); • ·      may have nominee shareholders if the beneficial owners wish to remain anonymous; • ·      must have, at least, 1 director who may be corporate and non-resident; • ·      must have a share capital of, at least, 500 Malta liri (approximately US$1,300) which must be, at least, 20% paid up (i.e. US$300); and • ·      need not have its principle place of business in Malta in order to own a Maltese ship. • Registration is a low-cost and straightforward operation that may be done in a matter of hours on the basis of a Power of Attorney and Declaration sent by the shareholders to their representative in Malta [please view Appendix 4 for a draft copy of the Power of Attorney & Declaration] and once all the administrative details and authorisations are in order. • B. Actual registration of the vessel with the MMA • From http://www.emaadvocates.com/ShipRegistration.htm, last accessed 20 January 2008.

5. The Maritime Code no 39 of 24 June 1994 (sjøloven), heading chapter 10: ‘Liability for Damage from Oil Pollution: Liability and Damages According to the Rules of the 1992 Liability Convention and the 1992 Fund Convention etc’

6. Oil pollution and channelling of liability: • MC section 193: • ‘Claims for compensation for oil pollution damage can only be made against the owner of a ship according to the provisions of this Chapter. • Claims for compensation for oil pollution damage can not be made against: • a) a member of the crew or anyone employed by or acting as an agent for the owner, • b) the pilot or any other person performing services for the ship, • c) the reder or manager if they do not own the ship, and any charterer, sender, shipper, owner or receiver of the cargo, • d) anyone engaged in salvage operations with the consent of the ship or on the instructions of a public authority, • e) anyone taking steps to prevent or limit pollution damage, or • f) anyone employed by or acting as an agent for persons mentioned in letters b, c, d and e, • unless that person caused the damage deliberately or through gross negligence and with the knowledge that such damage would probably result.’

7. Section 191, 5th paragraph: • ‘[b]y owner, if the ship is registered, is meant the person registered as owner in the Ship Register.’ • The Prestige: Reino de España v. American Bureau of Shipping (unrep) handed down Jan 2 2008, per Justice Swain: • ‘The undisputed factual record, even when read in light most favorable to Spain, clearly indicates that ABS is a person who, without being a member of the crew, performed services for the Prestige within the meaning of CLC Article III(4) [MC section 193, 2nd paragraph, litra b)]. Accordingly, the CLC is applicable to Spain’s claim against ABS in this action’ (at page 9) • Two consequences: • a) Spain must therefore prove ‘intent or recklessness with knowledge that such damage would probably result’ (CLC art III(4)), and • b) bring the action within a convention state (CLC art IX(1))

8. The Pollution Act, section 55: • ‘The owner of real property, an object, an installation or an enterprise that causes pollution damage is liable to pay compensation pursuant to this chapter regardless of any fault on his part if the owner also operates, uses or occupies the property, etc. Otherwise, such liability rests solely with the person that actually operates, uses or occupies the property...’ • The Pollution Act, section 78: • ’Fines or imprisonment for a term not exceeding three months or both will be imposed on any person that wilfully or through negligence • a) possesses, does, or initiates anything that may cause pollution contrary to this Act or regulations issued pursuant thereto…’ • The Criminal Code, section 48 a

9. Directive 2005/35/EC on ship-source pollution, preamble sub-paragraph 7: • ‘…penalties should be applicable not only to the shipowner or the master of the ship, but also the owner of the cargo, the classification society or any other person involved.’

10. Who may be held liable? • The Erika judgment by trial judge Parlos of le tribunal de Grande instance de Paris of January 16 2008