Maritime Safety Law and Policies of the European Union and the United States of America: Antagonism or Synergy?

171 Pages·2009·4.464 MB·English

by  Iliana Christodoulou-Varotsi (auth.)

Iliana Christodoulou-Varotsi
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Maritime Safety Law and Policies of the
European Union and the United States of America:
Antagonism or Synergy?
Iliana Christodoulou-Varotsi
Maritime Safety Law and
Policies of the European Union
and the United States of America:
Antagonism or Synergy?
123
Dr. Iliana Christodoulou-Varotsi
P.O. Box 65533
15402 N. Psychiko, Greece
[email protected]
ISBN 978-3-540-69871-5 e-ISBN 978-3-540-69874-6
DOI 10.1007/978-3-540-69874-6
Library of Congress Control Number: 2008939380
© 2009 Springer-Verlag Berlin Heidelberg
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Foreword
The International Maritime Organization (IMO), as the United Nations specialized
agency responsible for the regulation of shipping engaged in international trade
from the points of view of maritime safety and the prevention and control of pollu-
tion by ships, recognizes that these goals can only be effectively achieved if each
and every link in the corresponding chain of responsibility meets fully its obliga-
tions. Flag, port and coastal States, as well as the shipping industry itself, all have
roles to play in collectively improving safety and protecting the environment, both
marine and atmospheric, through the development, adoption, and uniform imple-
mentation and enforcement of, global standards.
In this book, Dr. Christodoulou-Varotsi sets out to explore the extent to which
the actions of the European Union and the United States, as the main originators
of high standards in these fields, constitute a paradigm to the rest of the interna-
tional maritime community. In this regard, while underscoring the need for a ho-
listic, multilateral approach to maritime regulation – as epitomized by the work of
IMO – the author explores how standards could be enhanced through the use of
unilateral action.
In so doing, she raises the question of whether certain manifestations of unilat-
eralism, illustrated by instruments proposed or adopted by the European Union
and the United States, should or should not be integrated into the international
law-making process to improve maritime safety and environmental protection. She
concludes that unilateralism should be seen as a potential stage towards interna-
tional action, rather than as constituting the solution to a problem, and should be
exercised only exceptionally, when the possibility of reaching the desired outcome
at the international level has been exhausted.
With particular reference to the control and reduction of marine pollution, Dr.
Christodoulou-Varotsi explores suggestions towards a system focusing on pre-
pollution prevention, where the market (through permits, for example), rather than
Governments, would be the chief regulatory force. While demonstrating a marked
degree of confidence in the capacity of private operators for self-regulation, the
legal potential of such an approach in the shipping context is, as the author recog-
nizes, yet to be fully explored.
VI Foreword
All in all, Dr. Christodoulou-Varotsi's work adds to the debate on potential ap-
proaches to the regulation of maritime safety and prevention and control of pollu-
tion by ships, leaving the reader with challenging policy options that bring a dif-
ferent angle to the discussion. It is this different angle – which, in a democratic
process, could benefit the outcome of any debate – that prompted me, a strong
supporter of multilateralism, to contribute the Foreword to this book, for which I
wish Dr. Christodoulou-Varotsi success in the fulfillment of her expectations.

Efthimios Ε. Mitropoulos
Secretary-General
International Maritime Organization
Preface
While it has been known for some time that “No man is an island, entire of it-
self,”1 the same is apparently not self evident in respect of ships. But one has
gained understanding. Perhaps the most significant traits in shipping policy after
1900 is the recognition that flag state safety regulation is inadequate when it is
coasts, ports and the environment that needs protection. The ship interacts with its
surrounding for good and – more significant for lawmakers – for bad. The need
for port and coastal states to exercise their jurisdiction has become pressing.
As the flag state monopoly for safety regulation of shipping has been chal-
lenged, an interest for harmonization of rules emerges, or at least an interest in
confronting the exercise of coastal jurisdiction in one state with that of another:
First of all, harmonization and harmonization attempts create foreseeability; a
ship should know what to expect even if not solely subject to the legislation of its
flag state.
Secondly, harmonized rules eliminate the need for – if at all possible – chang-
ing parts of the vessel and routines between ports.
Thirdly, harmonization provides justification for rules. If other port states need
them – so do we.
Fourthly, harmonization of rules creates a level playing field, not least impor-
tant for costly rules relating to safety and protection of the environment.
Fifthly, the harmonization process is a great international colloquium, in which
terms and concepts are developed to ease communication, and in which represen-
tatives of all states gains knowledge of the state of the art.
Luckily, then, there is no obvious or general race against the bottom amongst
coastal and port state legislators. Apparently, the interest in protecting the ports,
coast and the environment has been stronger than the possible gains for the na-
tional users of transport by slacking the rope.
In this context, Dr. Iliana Christodoulou-Varotsi tells us a most fascinating
story on the perhaps two greatest antagonists in the generally quite harmonized
world of ship safety legislation: USA and Europe. The European story is a story of
the emergence of Community competence and in exercise since the 1990ies. The
US story is inevitably linked to the Exxon Valdez incident and the Oil Pollution
Act, 1990, although this is only part of it.

1 John Donne (1572-1631): Devotions Upon Emergent Occasions, Meditation
XVII.
VIII Preface
I do not think Dr. Christodoulou-Varotsi dares to conclude clearly whether or
not the relationship between the US and Europe is synergy or antagonism in this
respect. But that is in any event not the main point. We owe her thanks for having
accounted for the rules in a manageable format, focusing on the non harmonized
features.
One may dislike unilateralism and regionalism; one may dislike government in-
tervention. But the fact remains that if none of those having the opportunity takes
an initiative, safety will not develop. Perhaps are the synergetic and the antagonis-
tic effects of such initiatives not so different after all?
This project has been a part of a greater Maritime Safety Project at the Scandi-
navian Institute of Maritime Law.2 The work with Dr. Christodoulou-Varotsi on
safety has certainly made me look forward to further work in this field.

Oslo February 29, 2008 Professor Erik Røsæg
Scandinavian Institute of Maritime Law
University of Oslo

2 See http://www.jus.uio.no/nifs/nifs/forskning/sjosikkerhet/.
Table of contents
Acknowledgements................................................................................................1
Abstract..................................................................................................................5
Introduction...........................................................................................................7
Preliminary part: Universalism in maritime law as a point of reference
for lawmakers: Myth and reality.......................................................................17
1. From the point of view of the flag State ..........................................................17
2. From the point of view of the coastal State.......................................................22
3. From the point of view of the port State...........................................................25
Part I: Overall position of the EU and the U.S. towards universal
maritime safety standards: Common standards, but.......................................29
1. The EU “Common Maritime Transport Policy” on maritime safety and
marine environment protection: Uniform, enhanced and anticipated rules.......30
1.1. The context................................................................................................30
1.2. The regulatory framework: Brief overview...............................................33
1.3. In quest of unilateralism: The EU maritime legislature’s approach
and method................................................................................................39
2. The maritime safety and anti-pollution legal framework in the U.S.:
The quest for optimum safety, the quest for limits to the traditional
standard-setting process....................................................................................43
2.1. The quest for optimum safety in U.S. waters............................................43
2.2. The regulatory framework: Brief overview...............................................46
2.3. The quest for unilateralism: The U.S. legislature’s approach
and method................................................................................................49
Part II: The search for common trends: A substantive law approach
in the light of prevention, preparedness/response and liability.......................55
1. Prevention.........................................................................................................56
1.1. Design and construction of oil tankers......................................................56
1.1.1. The backdrop of the adoption of provisions on the phasing-in
of double hulls...............................................................................59
1.1.2. Substantive provisions or the withdrawal’s schedule waltz...........61
1.1.3. Derogations....................................................................................65
X Table of contents
1.1.4. Assessment....................................................................................66
1.2. Requirements on the human element........................................................70
1.2.1. Protecting the seafarer as the most vulnerable part of the chain:
Search for antagonism or synergy through the ILO’s vision.........72
1.2.1.1. ILO Convention 147........................................................72
1.2.1.2. The new consolidated convention on maritime work.......75
1.2.2. Training, certification and watchkeeping of seafarers...................77
1.2.2.1. The general framework of international regulations
on seafarers’ standards of training, certification and
watchkeeping...................................................................78
1.2.2.2. The STCW requirements in domestic legal orders...........79
1.2.3. The International Safety Management (ISM) Code:
The managerial/operational approach to maritime safety
via the human element...................................................................82
1.2.3.1. The ISM Code in the EU and the U.S..............................83
1.2.4. Assessment....................................................................................84
1.3. Port State Control (PSC)...........................................................................86
1.3.1. Is there a right of access of foreign vessels to ports?.....................87
1.3.2. General aspects of PSC in the EU and the U.S.:
Purpose and scope.........................................................................89
1.3.3. The material aspects of PSC..........................................................94
1.3.4. Sanctions and appeals....................................................................99
1.3.5. Assessment..................................................................................101
2. Preparedness and the ability to respond: The need for promptness and
effectiveness put to the test.............................................................................103
2.1. Viewing past incidents............................................................................103
2.1.1. Noticeable incidents in European waters.....................................104
2.1.2. Noticeable incidents in U.S. waters.............................................105
2.2. The legal framework: Building on the the International Convention
on Oil Pollution, Preparedness, Response, and Cooperation (OPRC)
and on regional cooperation....................................................................107
2.2.1. The international instruments......................................................108
2.2.2. The EU: Softening discrepancies between Member States,
reinforcing capacities and cordination.........................................110
2.2.2.1. The tool of harmonization..............................................110
2.2.2.2. The institutional framework in support of
preparedness and response: The European
Commission and the European Maritime Safety
Agency acting jointly and separately.............................111
2.2.2.3. Regional cooperation in Europe.....................................113
2.2.2.4. National implementation: Discrepancies and
challenges.......................................................................115
2.2.3. Being proactive in the U.S..........................................................116
2.2.3.1. Key concepts and legal instruments...............................116
2.2.3.2. Brief overview of laws and policies on preparedness
and response: From CWA to SARA..............................118