With its Council Decision (EU) 2017/769 of the 25th of April 2017, the Council of the European Union authorised its Member States to ratify or accede 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”, with the exception of the aspects related to judicial cooperation in civil matters.
The International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 deals with liability and compensation for damages arising from the carriage of Hazardous and Noxious Substances by sea, including liquefied natural gas (LNG) and liquefied petroleum gas (LPG). The 2010 Protocol to the 1996 HNS Convention contained amendments to address problems identified in the 1996 HNS Convention and is to be read, interpreted and applied together with the provisions of the Convention as a single instrument, which is referred to as the '2010 HNS Convention'. Neither the 1996 HNS Convention, nor the 2010 Protocol to the HNS Convention have entered into force.
The 2010 HNS Convention establishes strict liability of the owner of the ship carrying HNS for any damage resulting from an incident in connection with the carriage of HNS by sea and on board that ship. There are limited exceptions to the strict liability of the owner, which is coupled with the owner's obligation to take out insurance or other financial security to cover his liability for damage under the Convention. A specialised compensation fund is established that is aimed at compensating any person suffering damage in connection with the carriage of HNS by sea where such person has been unable to obtain full and adequate compensation for the damage from the shipowner and its insurer. The total amount of compensation available is 250 million units of account (approximately 310 million euros in today's monetary exchange rates), based on an elaborate system of contributions paid to the HNS Fund by persons receiving HNS in each State Party.
Both the 1996 and the 2010 HNS Conventions overlap in scope with Directive 2004/35/EC on the liability of operators of occupational activities,(1) including shipping, in so far as (i) environmental damage caused to the territory, including the territorial sea, of a State Party, (ii) damage by contamination of the environment caused in the EEZ or equivalent area (up to 200 nautical miles from baselines) of a State Party, and (iii) 'preventive measures, wherever taken, to prevent or minimise such damage' are concerned.
However, there is nothing under the Directive to provide for compensation of victims of HNS pollution at sea in excess of the limits of the shipowner's liability, whereas it also lacks mandatory insurance requirements. What is more, Directive 2004/35/EC explicitly refers to the 1996 HNS Convention excluding any damage arising from an incident that is covered by that Convention, and any future amendments thereof, from its scope, provided that the Convention is in force in the Member State concerned. This is to allow for specialised international regimes that cover civil liability from specific occupational activities to prevail over the Directive, as these are deemed more effective in granting prompt and adequate compensation for environmental damage and better suited to the nature of such occupational activities.
Council Decision (EU) 2017/769 of 25 April 2017 on the ratification and accession by Member States, in the interest of the European 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, with the exception of the aspects related to judicial cooperation in civil matters
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