The basis of the legal challenge is that the new Directive imposes criminal liability for accidental pollution where no offence is recognised under international law (i.e. the MARPOL Convention). In July, Mr Justice Hodge referred four key issues to the European Court:

·         Whether it is lawful for the EU to impose criminal liability and, in doing so, limit MARPOL defences.

·         Whether it is lawful for the EU to exclude MARPOL defences for discharges in the territorial sea.

·         Whether the imposition of criminal liability for discharges caused by “serious negligence” hampers the right of innocent passage.

·         Whether the standard of liability in the Directive of “serious negligence” satisfies the requirement of legal certainty.

One major concern for the coalition, having won the early battle on referral, is the fact that EU member states are required to implement the Ship Source Pollution Directive by next March 1. It is thought unlikely that the European Court can deliver a ruling before the 2007 second half at best.

In a separate development, Interreg’s Maritime Safety Umbrella Operation (MSUO) has decided to join forces with the ISU, to develop International Guidelines for Marine Casualty Management. The guidelines will be based on an ISU proposal to replace the existing IMO Places of Refuge Guidelines, which are now regarded as too narrowly focused.

The intention is to develop new Casualty Management Guidelines for the benefit of salvors, shipowners and coastal states, for IMO consideration and eventual adoption. This project has first call on MSUO funding for the 2007-13 period. The European Maritime Safety Agency is expected to participate in the development of a detailed work plan for this project.

Meanwhile, the ISU is planning to open talks with the International Group of P&I Clubs, to reform the current regime for wreck removal contracting. In the ISU’s view, the common practice of seeking to impose no cure – no pay contracting terms for large projects is unreasonable, as it exposes the contractor to unacceptable financial risks of a type that would not be encountered in any other industry.

MJ Information No: 22302