The Political Economy of Maritime Safety: EU Regulation, Ship Classification, and the International Regime (Palgrave Studies in Maritime Economics) 3031389441, 9783031389443

Table of contents :
Preface
Acknowledgments
Contents
Abbreviations
List of Figures
List of Tables
Chapter 1: Introduction
Brussels, Early December 1999
A Brief History of Maritime Regulation
From Antiquity to Renaissance
Britain Ruling the Waves
The Emergence of Ship Classification
The Role of the Flag State
Open Registers and ‘Sovereignty for Sale’
International Regulatory Convergence: Or ‘Race to the Bottom’?
Some Analytical Tools and Concepts
International Regimes
Institutional Interaction
‘Normal’ Versus ‘Abnormal’ Accidents
EU, Regulation and the Brussels Effect
Chapter 2: Amoco Cadiz and the Early Days of EC Maritime Regulation
Massive Tanker Oil Pollution, Once Again
European Parliament Emerge as a Maritime Policymaker
Pushing for a Joint EC Approach to Maritime Regulation
Torrey Canyon and the Early Days of MARPOL
The Treaty of Rome and Maritime Transport Regulation
The Early Seeds of Port State Control (PSC)
The EC Internal Market and [De]-regulation of European Shipping
The Political Impact of the 1980s’ Global Crises in Shipping
Ship Registration and the Issue of ‘Genuine Link’
Summing Up and Concluding Remarks, 1970–1989
Chapter 3: Braer and Breakthrough for EU Maritime Engagement and Regulation
Pushing for EU Regulation
1993, Braer and the Political Turmoil That Followed
The Council ‘Resolution on Safe Seas’: Denmark Promotes an EU-IMO Path
Offensive Commission Initiative on ‘A Common Policy on Safe Seas’
Ship Classification Societies in the Regulatory Spotlight
Poor Enforcement of International Rules Leads to Port State Control
Wide Consent for Action in European Council and Parliament
EU Interaction with the IMO and the Wider Maritime World
Mid-1990s, the Agreed EU ‘Maritime Safety Programme’ Nears Completion
Renewed Focus on Industry Self-Regulation
Summing Up and Concluding Remarks, 1990–1999
Chapter 4: Erika, a Watershed in International Maritime Governance
Sinking of Erika
Crucial Change of Guard at the European Commission
France Takes the Initiative in Preparing for the EU Presidency
Classification Societies, the Erika Story’s Real Villain?
The Commission’s First Package of Post-Erika Legislation
Tightening Regulation on Ship Classification When Acting as ROs
France Strengthens the Grip on the Post-Erika Processes
The Commission’s Second Post-Erika Regulatory Package
Establishing the European Maritime Safety Agency (EMSA)
Summing Up and Concluding Remarks, 1999–2002
Chapter 5: Prestige and Near Breakdown of the Safety Regime
No Place of Refuge and a Ship Master Made to Blame
The Legitimacy of UNCLOS in Question
Urgency in EU Council of Ministers
More Scrutiny of Classification Societies
International Shipping Community ‘On the Carpet’ in EU Parliament
EU Versus the IMO
IMO’s Secretary General’s in Pivotal EU Parliament Meeting
Major Flag States Cyprus and Malta Becomes EU Members
Summing up and Concluding Remarks, 2002–2005
Chapter 6: From EU-IMO Confrontation to Constructive Institutional Interaction
The Commission’s Third Package of EU Maritime Regulation
EU–IMO Relations Find Its Form
For the Third Time, EU Widens the Scope for Its RO Regulatory Approach
The EU Co-Decision-Making Process, Lengthy but Productive
EU Parliament Calls for More Flag State Involvement with the ROs
EU Member States Move to Further Severe the Union’s RO Legislation
The EU RO Legislation Prepares the Ground Also for IMO Action
Both the EU and the IMO Moves to Straighten-up Flag State Implementation
The Significance of the EU Anti-competition Investigation of IACS
Towards EU-IMO Convergence on the Rules of the Game
Summing Up and Concluding Remarks, 2005–2015
Chapter 7: EU Maritime Safety Policy and the International Regime, 1975–2015: Summing-up and Conclusions
On the Longer Patterns of History
Amoco Cadiz
Braer
Erika
Prestige
Private and Public Governance in the International Maritime Regime
Further Reading
Index

Citation preview

PALGRAVE STUDIES IN MARITIME ECONOMICS

Ketil Djønne

The Political Economy of Maritime Safety EU Regulation, Ship Classification, and the International Regime

Palgrave Studies in Maritime Economics Series Editors

Hercules Haralambides Erasmus School of Economics Erasmus University Rotterdam Rotterdam, The Netherlands Stig Tenold Department of Economics NHH – Norwegian School of Economics Bergen, Norway

Palgrave Studies in Maritime Economics is a new, original and timely interdisciplinary series that seeks to be pivotal in nature and improve our understanding of the role of the maritime sector within port economics and global supply chain management, shipping finance, and maritime business and economic history. The maritime industry plays an increasingly important role in the changing world economy, and this new series offers an outlet for reviewing trends and developments over time as well as analysing how such changes are affecting trade, transport, the environment and financial markets. Each title in the series will communicate key research findings, shaping new approaches to maritime economics. The core audience will be academic, as well as policymakers, regulators and international maritime authorities and organisations. Individual titles will often be theoretically informed but will always be firmly evidence-based, seeking to link theory to policy outcomes and changing practices.

Ketil Djønne

The Political Economy of Maritime Safety EU Regulation, Ship Classification, and the International Regime

Ketil Djønne Department of Modern History and Society Norwegian University of Science and Technology - NTNU Trondheim, Norway

ISSN 2662-6551     ISSN 2662-656X (electronic) Palgrave Studies in Maritime Economics ISBN 978-3-031-38944-3    ISBN 978-3-031-38945-0 (eBook) https://doi.org/10.1007/978-3-031-38945-0 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

Shipping regulation builds on principles that are centuries old, and the scope will almost always be transboundary non-national, if not ‘global’. The very regulatory objects, the ships and the people and cargo they carry, are defined by their transboundary character. For much of the time, these objects reside outside any single country’s—or territory’s—reach or control. Shipping and shipping regulation is transboundary not only from a legal, political, or economic point of view but also from the perspective of academic disciplines. Scholarly fields such as law and economics as well as history, have all contributed to the understanding of shipping governance. However, studies purporting to explain shipping regulation by a cross-­ disciplinary exploration of the mutual interdependence that can be found between national and international political relations on the one hand and the commercial ways and means of the shipping industry on the other, are scarce. Finally, shipping regulation is transboundary in the sense that through history, rules have been developed with separate, but often entwined, goals in mind. As such, there is regulation on the construction of ships and on their operation. On employment and working conditions. On training and certification of seafarers, on navigation and sea lines, responsibility and liability, and on how to resolve conflicts between the many interested parties. There is even—and at times in history, this has been much more pronounced than today—regulation on access to markets, sharing of cargos, and other commercial issues. Little wonder then that the world of shipping regulation is a strange and almost impenetrable mix of private and public, national and international, impulses. Wherever one looks, the solutions are hybrid rather than clear-cut one or the other. v

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PREFACE

The aim of this book is to examine aspects of this ‘Political Economy of Maritime Safety Regulation’ by focusing on how and why private and public governance of international shipping changed from the early 1970s to the end of the 2010s. Without losing sight of the wider regulatory perspectives or the transboundary characteristics mentioned, the main focus is on regulation aimed at maritime safety and marine environment protection. Such a limitation in scope makes sense because of the long historical lines in these domains, but also because with its close affiliation to the International Maritime Organisation (IMO), this regulatory field may arguably be considered a backbone of global maritime governance in general. One could close in on this subject from numerous angles. Whatever approach one takes, however, a study of this kind is bound to encompass both private and public actors at national, regional, and international levels and, not least, the interaction between them. On the private side, many actors are involved, but in this book, the maritime classification societies have been singled out as particularly appropriate objects of study. This is partly due to their historical prevalence, but mainly because they may be seen as a ‘spider in the web’ of international maritime safety and environmental governance. On the public side, attention and focus are directed on the processes that brought the European Union (EU) onto the international maritime regulatory scene over the past 40–50 years. Several reasons account for this perspective. First, bringing the EU into focus offers an opportunity to study the shift from ‘national’ shipping policies to a greater, more overarching and shared concern for the industry’s externalities within and amongst many of the shipping nations that dominated ocean transport for centuries. Second, the period is characterised by exceptional processes of regulatory development and integration in Europe, something which also coincided with an era of dramatic decline in Europe’s longstanding hegemony in world shipping. Such periods of transition and change lend themselves particularly well to analysing dynamic interaction. In sum, the EU’s engagement in maritime safety regulation represents a distinctive historical encounter which challenged the previously established order and its key actors. New participants entered the scene, often with a frame of reference from other industries and policy areas, questioning established rules, norms, and procedures and thereby challenging and ultimately threatening the very foundations of the maritime regulatory set-up itself.

 PREFACE 

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Structured around a study of the interaction between a string of external events (major oil tanker accidents in European waters), the wider European integration processes and developments in, and engulfing international shipping, this book attempts to throw some light on why and how regulating the classification societies became such a prominent part of the emerging common EU maritime safety policy? In doing so, it provides an analysis of how these EU developments impacted maritime governance at the international level more generally. These processes brought the EU firmly onto the international maritime safety regulatory scene—including as an ambitious actor in the UN agency, IMO (International Maritime Organisation). Ultimately, the study explores how these processes of institutional interaction changed the global governance regime itself using the entry into force in 2015 of a particularly relevant set of new IMO instruments as endpoint. With this as point of departure, it is hoped that this book might offer some new insight to the complex area of international relations that shipping regulation arguably is, and that in so doing it might provide useful background and food for thought for maritime practitioners as well as academics in both the private and public sectors of the industry, many of whom will find themselves—knowingly or unknowingly—as actors in a maritime regulatory world that keep on moving. Trondheim, Norway

Ketil Djønne

Acknowledgments

The book has come about as a result of many years at the crossroads between the shipping industry, maritime regulation, and the EU on one hand and the academic world on the other. A sincere thanks therefore to colleagues and friends within all these circles for inspiring discussions and exchange of views. However, three institutions deserve particular mention. First DNV, the classification society that employed me as part of their research unit during the years it took to complete this work. Second, my academic affiliation to and cooperation with academic colleagues at the Norwegian University of Science and Technology (NTNU) has been crucial. And last but not least, many thanks to the Research Council of Norway who part financed this work through its Private sector PhD programme. In terms of the many individuals who have contributed along the way, I must limit myself to saying as we do in my native Norwegian, ‘no one mentioned—no one forgotten’. Nevertheless, at NTNU, PhD Candidate Widar Aalrust Kristoffersen deserves special thanks for assisting with illustrations in the run-up to this book. Finally, many thanks to Palgrave Macmillan for showing confidence in the value of this work. Despite all this great support, responsibility for any ambiguity or mistake that might have made it into the final version of this document, will, of course, rest entirely on my own shoulders. Oslo, May 2023

Ketil Djønne ix

Contents

1 Introduction  1 Brussels, Early December 1999   1 A Brief History of Maritime Regulation   4 From Antiquity to Renaissance   4 Britain Ruling the Waves   6 The Emergence of Ship Classification   7 The Role of the Flag State   9 Open Registers and ‘Sovereignty for Sale’  11 International Regulatory Convergence: Or ‘Race to the Bottom’?  16 Some Analytical Tools and Concepts  20 International Regimes  20 Institutional Interaction  21 ‘Normal’ Versus ‘Abnormal’ Accidents  21 EU, Regulation and the Brussels Effect  22 2 A  moco Cadiz and the Early Days of EC Maritime Regulation  33 Massive Tanker Oil Pollution, Once Again  33 European Parliament Emerge as a Maritime Policymaker  36 Pushing for a Joint EC Approach to Maritime Regulation  40 Torrey Canyon and the Early Days of MARPOL  43 The Treaty of Rome and Maritime Transport Regulation  45 The Early Seeds of Port State Control (PSC)  47

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Contents

The EC Internal Market and [De]-regulation of European Shipping  49 The Political Impact of the 1980s’ Global Crises in Shipping  51 Ship Registration and the Issue of ‘Genuine Link’  53 Summing Up and Concluding Remarks, 1970–1989  56 3 Braer and Breakthrough for EU Maritime Engagement and Regulation 67 Pushing for EU Regulation  67 1993, Braer and the Political Turmoil That Followed  68 The Council ‘Resolution on Safe Seas’: Denmark Promotes an EU-IMO Path  70 Offensive Commission Initiative on ‘A Common Policy on Safe Seas’  73 Ship Classification Societies in the Regulatory Spotlight  76 Poor Enforcement of International Rules Leads to Port State Control  81 Wide Consent for Action in European Council and Parliament  83 EU Interaction with the IMO and the Wider Maritime World  84 Mid-1990s, the Agreed EU ‘Maritime Safety Programme’ Nears Completion  89 Renewed Focus on Industry Self-Regulation  92 Summing Up and Concluding Remarks, 1990–1999  94 4 Erika, a Watershed in International Maritime Governance107 Sinking of Erika 107 Crucial Change of Guard at the European Commission 109 France Takes the Initiative in Preparing for the EU Presidency 111 Classification Societies, the Erika Story’s Real Villain? 114 The Commission’s First Package of Post-­Erika Legislation 116 Tightening Regulation on Ship Classification When Acting as ROs 118 France Strengthens the Grip on the Post-­Erika Processes 120 The Commission’s Second Post-Erika Regulatory Package 121

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Establishing the European Maritime Safety Agency (EMSA) 122 Summing Up and Concluding Remarks, 1999–2002 124 5 Prestige and Near Breakdown of the Safety Regime133 No Place of Refuge and a Ship Master Made to Blame 133 The Legitimacy of UNCLOS in Question 135 Urgency in EU Council of Ministers 137 More Scrutiny of Classification Societies 138 International Shipping Community ‘On the Carpet’ in EU Parliament 140 EU Versus the IMO 142 IMO’s Secretary General’s in Pivotal EU Parliament Meeting 146 Major Flag States Cyprus and Malta Becomes EU Members 148 Summing up and Concluding Remarks, 2002–2005 150 6 From  EU-IMO Confrontation to Constructive Institutional Interaction159 The Commission’s Third Package of EU Maritime Regulation 159 EU–IMO Relations Find Its Form 161 For the Third Time, EU Widens the Scope for Its RO Regulatory Approach 166 The EU Co-Decision-Making Process, Lengthy but Productive 168 EU Parliament Calls for More Flag State Involvement with the ROs 169 EU Member States Move to Further Severe the Union’s RO Legislation 170 The EU RO Legislation Prepares the Ground Also for IMO Action 173 Both the EU and the IMO Moves to Straighten-up Flag State Implementation 174 The Significance of the EU Anti-competition Investigation of IACS 176 Towards EU-IMO Convergence on the Rules of the Game 178 Summing Up and Concluding Remarks, 2005–2015 180

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Contents

7 EU  Maritime Safety Policy and the International Regime, 1975–2015: Summing-up and Conclusions189 On the Longer Patterns of History 189 Amoco Cadiz 192 Braer 194 Erika 197 Prestige 199 Private and Public Governance in the International Maritime Regime 201 Further Reading215 Index223

Abbreviations

ABS BEUC BV CAS CCS CESA CLC CMC COSS CRISTAL

American Bureau of Shipping Bureau Européen des Unions de Consommateurs Bureau Veritas Condition Assessment Scheme China Classification Society Council of European Shipbuilders Associations Civil Liability and Fund Conventions Certification of Material and Components Committee on Safe Seas Contract Regarding a Supplement to Tanker Liability for Oil Pollution CSD [UN] Commission on Sustainable Development CSG Consultative Shipping Group DG Directorate-General DG COMP Directorate-General for Competition DG ENTER Directorate-General for Enterprise and industry DG MARE Directorate-General for Maritime affairs and fisheries DG MOVE Directorate-General for Mobility and transport DG TREN Directorate-General for Transport and energy DNV Det Norske Veritas DWT Dead weight ton EASA European Aviation Safety Agency EC European Community ECJ European Court of Justice ECSA European Community Shipowners’ Association EEA European Economic Area EEC European Economic Community xv

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ABBREVIATIONS

EFTA EMEC EMSA ENA EP ESP ETF EU FOC FSI G7 G8 GL GPG GRT Hazmat IACS ICJ ICS ILO IMCO IMO IMSAS INTERTANKO ISM ISPS ITF IUMI KPI KR LAN [group] LR MARPOL MED MEP MEPC MOU MSC NIEO nm

European Free Trade Association European Marine Equipment Council European Maritime Safety Agency École Nationale d’Administration European Parliament Enhanced Survey Programme European Transport workers Federation European Union Flag of Convenience [IMO] Flag State Implementation committee Group of Seven [leading industrialised nations] Group of Eight [leading industrialised nations— includes Russia] Germanischer Lloyd [IACS] General Policy Group Gross registered tonnes Hazardous material International Association of Classification Societies International Court of Justice International Chamber of Shipping International Labour Organisation International Maritime Consultative Organisation International Maritime Organisation IMO Member State Audit Scheme International Association of Independent Tanker Owners [IMO] International Safety Management Code [IMO] International Ship and Port Facility Security Code International Transport workers’ Federation International Union of Marine Insurers Key Performance Indicators Korean Register Lloyds, ABS, det Norske Veritas Lloyd’s Register The International Convention for the Prevention of Pollution from Ships Marine Equipment Directive Member of European Parliament [IMO] Marine Environment Protection Committee Memorandum of Understanding [IMO] Marine Safety Committee New International Economic Order Nautical mile

 ABBREVIATIONS 

NUMAST OCIMF OJ OPA 90 P&I PRS PSC QACE QSCS RETT RINA RO Ro-Ro SAF SEA SIRE SIRENAC SOLAS STCW [IMO] TOCA TOVALOP TRAN UNCLOS UNCTAD USCG VLCC VTS

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National Union of Marine, Aviation and Shipping Transport Officers Oil Companies International Marine Forum Official Journal [US] Oil Pollution Act 1990 Protection & Indemnity Polish Register of Shipping Port State Control Quality Assessment and Certification Entity [IACS’] Quality System Certification Scheme European Parliament Committee on Regional policy, Transport and Tourism Registro Italiano Navale Recognised Organisation Roll on—Roll off carrier [IMO] Self-Assessment of Flag state performance Single European Act [OCIMF] Ship Inspection Report Programme The central information system of the Paris MOU on PSC [IMO] International Convention for the Safety of Life at Sea International Convention on Standards on Training, Certification and watch keeping [IACS’] Transfer of Class Agreement Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution European Parliament Committee on Transport United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development United States Coast Guard Very Large Crude [oil] Carrier Vessel Traffic Service

List of Figures

Fig. 1.1 Fig. 1.2 Fig. 1.3 Fig. 1.4 Fig. 2.1 Fig. 2.2 Fig. 2.3 Fig. 2.4 Fig. 2.5 Fig. 2.6 Fig. 2.7 Fig. 2.8 Fig. 3.1 Fig. 3.2 Fig. 3.3

The Plimsoll mark 10 Share of world fleet in GRT under flags of convenience (FOC), 1955–199013 Evolution of OECD fleet in mill. DWT compared to group of FOCs and world fleet, 1980–1995 14 Six major FOCs’ proportion of world fleet in 2021 15 Medium (7–700 tonnes) and large (>700 tonnes) tanker spills as a percentage of those recorded per decade, 1970–2022 34 Average size in DWT of tankers in existing fleet versus on order in 1973 35 Impact of 1973 EC enlargement on size and composition of the combined EC fleet 40 Impact of consecutive EC/EU enlargements 1973–2005 on size and composition of the combined fleet 46 Development in global tanker cargo transports 1955–2013, in million metric tons 51 Laid-up tankers in millions of DWT measured against total world tanker fleet, 1981–2009 52 Number of lives lost at sea worldwide, 1985–1991 54 Percentage distribution of casualties by geographic region in European waters, 1987–1991 55 Loss ratio in percent of total fleet for some selected flags, 1987–199174 Number of PSC deficiencies (in thousands) found across all vessel types by the Paris MOU, 1985–1991 75 Detention ratio per port state member of the Paris MOU, 1991 82

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List of Figures

Fig. 3.4 Fig. 3.5 Fig. 5.1 Fig. 7.1 Fig. 7.2

Causes behind tanker accidents with more than 700 tonnes of oil spilled, 1970–2022 87 Percentage of world fleet lost by age groups, 1989–1991 88 Cyprus and Malta shares of the total EU fleet post 2005 enlargement149 Fleet size by region of beneficial ownership, 2022 210 Five leading ship registers in million DWT, 2022 210

List of Tables

Table 1.1 Table 1.2 Table 1.3 Table 1.4 Table 2.1 Table 4.1 Table 4.2 Table 4.3

Major tanker oil spills in European waters, 1967–2002 3 Growth in FOC fleet 1939–1960 (in million GRT) 13 The switch to European second registers, some selected countries, 1985–1994 (in million GRT) 15 Degree of EU Member State delegations of authority to ROs in the issuing process of ISM certificates 19 Global shipbuilding output, 1970–1980 in thousands of GRT 52 Tanker fleet affiliation to oil companies, 1974 versus 1999 112 List of IACS members, year 2000 114 Proportion of double-hull tankers in world fleet as of 1 January 2000 117

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CHAPTER 1

Introduction

Brussels, Early December 1999 The usual seasonal drizzle hung over a grey and windy Brussels that weekend in early December 1999. But for those engaged in making European Union (EU) maritime policy—officials and industry advocates alike—it was a time for celebrating and winding up a year of successful cooperation. Built around the principles of restrained EU engagement combined with industry self-regulation, the ‘Quality shipping charter’ had just been successfully signed.1 However, few had taken note that a drama was simultaneously unfolding in the Bay of Biscay. There, in heavy storms, the multinational crew of the Malta-registered Erika were battling for their lives and the survival of their vessel. The oil tanker ran into trouble on the afternoon of Saturday 11 December and, with large cracks opening in the deck beneath their feet, the seafarers made desperate attempts to right the heavily listing vessel. The battle continued throughout the dark and windy night before the ship broke in two at dawn and foundered in the raging seas. Only minutes earlier, the master and his last remaining crew members had been airlifted to safety by French coastguard helicopters. But the cargo of roughly 30,000 tonnes of sticky heavy fuel oil spilled to the sea.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0_1

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A preliminary official accident investigation report, which was released a few weeks later by French authorities, revealed how the Erika, like so many other open-register vessels loaded with dry or oil cargoes, involved many actors entwined in a complex and often impenetrable international web. With an Italy-based technical management company, the vessels beneficial owners were hidden behind legal offices and ‘brass plate’ companies in Liberia and Malta. Its multinational crew, recruited through a manning agent in Mumbai, were on short-term contracts. The flag state, Malta, had delegated significant parts of its supervisory duties to a private classification society, which also enjoyed a private contractual working relationship with the vessel’s operator. Chartered for a single voyage by French oil major Total Fina through an agent in Switzerland, the tanker had been hired to move the highly toxic cargo between two European ports, at the lowest available price.2 The 25-year-old vessel, approaching the end of its life under international conventions, had been surveyed by several private and government inspectors over the preceding months, but nobody had a full overview of its seaworthiness and operational condition. And no one was prepared to step forward and take responsibility. The investigating commission summed this all up by stating that “although the [Erika] arrangement is far from unusual when it comes to transporting bulk cargo by sea—it was highly complex and did not make it easy to apprehend the precise responsibilities of each one of the interested parties”.3 However, the Erika accident was far from the first oil tanker casualty unfolding in European waters. Already 30 years earlier the Torrey Canyon disaster (1967) had brought massive oil pollution to hundreds of miles of British, French and Spanish coastlines. The Erika was just the latest in what was effectively a chain of dramatic tanker accidents that had taken place over the subsequent decades (Table  1.1). Throughout the 1960s and 1970s, vessel sizes also increased dramatically as technological advances in shipbuilding allowed for the construction of very large crude carriers (VLCC) or ‘super tankers’ to meet soaring demand from ever-­ augmenting global crude oil consumption. These trends became contributing factors to fatalities such as the Amoco Cadiz (1978), the Braer (1993) and the Sea Empress (1996), all of which caused public dismay over repeated environmental damage to the shores of northern-Europe. These accidents had impacted on international maritime safety governance already, first and foremost by initiating the ‘International convention for the prevention of pollution from ships’ (MARPOL), which entered in to force in 1983 with numerous subsequent upgrades

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Table 1.1  Major tanker oil spills in European waters, 1967–2002 Ship name

Year

Location

Oil spilt (tonnes)

Cause

Torrey Canyon Jacob Maersk Urquiola Amoco Cadiz Haven Agean Sea Braer Nassia Sea Empress Erika Prestige

1967 1975 1976 1978 1991 1992 1993 1994 1996 1999 2002

Scilly Isles, UK Oporto, Portugal La Coruña, Spain Off Brittany, France Genoa, Italy La Coruña, Spain Shetland Islands, UK Black Sea, Turkey Milford Haven, UK Off Brittany, France Off Cap Finisterre, Spain

119.000 88.000 100.000 223.000 144.000 73.000 84.000 33.000 72.360 19.800 62.657

Grounding Grounding Grounding Grounding Fire/explosion Grounding Grounding Collision Grounding Hull failure Hull failure

Source: European Environmental Agency (EEA). Website consulted May 2023

thereafter. Nevertheless, with its findings, the French investigation report seemed to highlight an international sea transport governance structure that came close to what Charles Perrow characterised as “an error-inducing system”.4 Perrow argued that the social organisation in shipping, together with fragmented operational and commercial structures, multiple inbuilt economic pressures and, not least, the ensuing difficulties linked to national and international regulation, were among the industry’s main error-inducing characteristics.5 We shall come back to Perrow later. With the sinking of the Erika therefore, a latent public scepticism about the entire way international maritime transport was governed blew up into an almost total distrust, first and foremost from Brussels and the EU. These sentiments had been simmering since the early 1970s, but advances in public media gradually brought the tanker oil spills closer to home via TV-transmitted pictures of oily beaches and suffering seabirds. These changes contributed to public environmental awareness and indignation, and when the Erika sank in 1999, fundamental questions were raised by the EU institutions on the overall functionality of maritime governance and the legitimacy of the key actors.6 More specifically, the private governance functions performed first and foremost by maritime classification societies, came under scrutiny for perceived lack of transparency and accountability. Fundamental questions were raised as to whether these private sector societies had the capabilities required for delivering adequate maritime safety standards and to provide

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trustworthy assurance against these standards. Furthermore, the independence of these maritime classification societies became challenged not the least because they came to be perceived as seated on several sides of the table. These maritime events coincided with an historic period where forces of European integration were particularly prominent and strong, and the impact the shipping fatalities had on policy formulation were accentuated through interaction with these overarching forces of regional integration. A consequence was that the EU was gradually given regulatory power over shipping matters by the Member States. This in turn introduced new European-wide regulation and control mechanisms, which fundamentally challenged the individual EU Member States’ traditional take on shipping policy matters— and with that—the entire international governance structure as well. The aim of this book is to make use of methods of history research to analyse these changes as they unfolded within the period from 1975 to 2015. Over this period the EU was brought firmly in as an actor in maritime safety regulation—including as an ambitious actor at international level including in the International Maritime Organisation (IMO). Ultimately, the book explores how these inter-institutional processes changed the global governance regime itself. Focus will therefore be on the EU’s emergence as maritime regulator, while also addressing why and how—and with what consequences—the EU chose to make regulation of the maritime classification societies such a prominent part of its approach. First, however, with the view of enhancing our ability understanding the political processes unleashed by the Erika, it is recommendable to take a quick look back on the longer lines of history. As a matter of fact, a glance at the historical origins and key characteristics of the sector’s governance structures may assist in explaining the ensuing events under scrutiny here. Following this quick retrospective, we shall round-off this introductory chapter by introducing some of the analytical tools and concepts which are drawn upon throughout this book.

A Brief History of Maritime Regulation From Antiquity to Renaissance With roots extending back to the Mediterranean trading nations of the Antiquity, important aspects of private law at sea were already widely accepted in Europe by the end of the fourteenth century.7 Developed and

1 INTRODUCTION 

5

consolidated first and foremost by the Italian city states of the time, this body of law was well established. Rules on how to treat disputes related to collisions and shipwrecks, maritime contracts, embargos and blockades, piracy and prize had—to varying degrees—provided the basis for arbitration in specialised admiralty courts. Many would agree that 1609 is a milestone in the history of international maritime regulation. That was the year Dutch legal scholar Hugo Grotius published his Mare Librium or freedom of the seas doctrine.8 Martine Julia Van Ittersum has explored how this developed as an element of Grotius’ legal opinion in defence of the Dutch East India Company’s interests.9 His argument was built around what he claimed were ancient Greek and Roman principles, and many have subsequently drawn on his reasoning.10 There is little doubt, therefore, that Grotius’ doctrine has had a tremendous impact on the development of the key principles guiding law-of-the-sea scholars up to the present day.11 Indeed, balancing the principle of freedom of the seas with the interests of flag states versus port states versus coastal states—and even land-locked states—is at the heart of the United Nations Convention on the Law of the Sea (UNCLOS) signed in 1982. But studies of how the Grotius doctrine has been understood and implemented also illustrate how its key concepts have been argued over and adapted to the interests of the dominant sea power at any given time.12 Throughout the seventeenth and eighteenth centuries, a growing national consciousness took hold across Europe in the form of strong monarchical governments. In their own ways, each of these states sought to tighten their grip on the governance of what they saw as their own territories and interests, at home and abroad. Eventually, the concept of sovereignty became central and had major consequences in the maritime field. Lauren Benton has shown how the battle for wealth, imperial power and safe lines of communication at sea became more than ever a struggle over controlling and protecting maritime military and commercial movements.13 In response to the early dominance of Portugal and Spain, France, the Netherlands and England all engaged in these conflicts. In Cromwell’s England, the Navigation Act of 1651 required all goods produced in its colonies to be transported in English ships. In Louis XIV’s France, statesman Jean-Baptist Colbert ensured the adoption of the Ordonance de la Marine in 1681, a national law which codified several maritime rules and principles from a French perspective. And the other leading European military and trading powers followed suit, first the Netherlands with the Marine Ordinance of Rotterdam in 1721, then Spain

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with the Ordinances of Bilbao in 1737 and Venice’s Code of Mercantile Marine in 1786.14 In all these cases, efforts to regulate the oceans—and to project power on them—did more than just organise the seas. While these projects stemmed from domestic political change, they also rebounded on the political communities concerned. Exercising control of the seas had some distinct properties, however, since claiming a patch of water was hardly comparable with making a similar claim on land. But Benton and Perl-­ Rosenthal argue that “the larger story […] is that the polities had to integrate military, technical, and social logics of the maritime world into the heart of their policy making if they hoped to survive and thrive”.15 And through these processes, many of the ancient principles of (private) maritime law became converted into national law at the service of powerful rulers. This ensured that basic common principles inherited from the past were preserved, but also that they became subject to national imperialist and mercantilist forces.16 The Grotian principle of the freedom of the seas was thereby twisted and tweaked many times in the interest of national wealth creation and control through exercising sea power.17 Britain Ruling the Waves By the mid-eighteenth century, one nation was on its way to outgrowing the others totally in terms of geopolitical dominance and maritime trade. Starting perhaps with Captain Morgan’s raid on a Spanish outpost in Latin America in 1663, the British Empire had been transformed by 1750 from buccaneering backed by the Crown, via the international slave trade, to a global supply chain for an emerging British consumer society.18 Daniel Defoe, the author of Robinson Crusoe and himself a merchant and keen observer of contemporary British social life, wrote in 1725 that: England consumes within itself more goods of foreign growth, imported from the several countries where they are produced or wrought, than any other nation in the world […]. This importation consists chiefly of sugars and tobacco, of which the consumption in Great Britain is scarcely to be conceived of, besides the consumption of cotton, indigo, rice, ginger, pimento or Jamaican pepper, coca or chocolate, rum and molasses.19

By the mid-eighteenth century, therefore, the pace of world trade had quickened considerably, with London as the hub of an expanding web of

1 INTRODUCTION 

7

intercontinental trade links between constituents of the British Empire. At the same time, as much as 85% of British tobacco imports were re-exported by the 1770s, with the proportion for coffee being close to 94%.20 Most of these re-exports went to other destinations across Europe, and all of them went by sea. This transition from piracy to economic and political power is, of course, a story of numerous battles and power plays with other European states as well as with local rulers around the world, and the drivers behind it were many.21 London had become the centre of trade and wealth, with vessels and sea voyages as the essential means of value creation.22 And a diverse and tailored commercial service infrastructure steadily developed in support of this global trading system. Banking and insurance became increasingly sophisticated industries, and major trading houses developed both as clients for, and providers of, such services.23 In the early years of the eighteenth century, the maritime safety concerns of shipowners, merchants and traders often focused on the likelihood of being attacked by pirates. And the reality of this threat is illustrated by the fact that in the 1720s alone, the period regarded as the heyday of piracy, as many as 2400 vessels are estimated to have been attacked and plundered.24 However, a massive and brutal campaign by the British Navy, supported by trials and executions in a range of UK territories and possessions, meant this threat was close to being eliminated by mid-century.25 Sea voyages nevertheless remained hazardous and a great many vessels and crews never made it to their destination.26 Valuable cargoes—and crews— were lost at an alarming rate.27 Meanwhile, the London insurance market had emerged as a significant business in its own right and a fundamental building block of the entire British Empire.28 However, insurance premiums were high, and it was hard for merchants and other commercial parties to assess which vessels to charter in order to maximise their chances of cargoes arriving safely. Commercial demand emerged for a service which could help to separate good vessels from bad. The Emergence of Ship Classification Maritime classification emerged as a response to this need, and the world’s first classification society, Lloyd’s Register (LR), saw the light of day in London in 1760.29 In the following years, similar institutions were created in Antwerp with Bureau Veritas (BV) in 1828, the American Bureau of Shipping (ABS) in the USA in 1862, closely followed by Norway’s Det

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norske Veritas (DNV) in 1864 and Germany’s Germanischer Lloyd (GL) in 1867.30 These private societies conducted expert surveys and rated individual vessels in categories—or classes—according to the soundness of their construction and level of maintenance. These lists gradually developed into more authoritative independent registers, which were kept periodically updated and open to be consulted for a fee by insurers—and sometimes by the cargo owners. Cultivating their role as independent experts, the classification societies traded on integrity, neutrality and expertise—founded on the mutual trust of all the stakeholders involved.31 Over the years, the work of the classification societies evolved and expanded. In a sign of the increasing commercial value of classification certificates, not only insurers but also cargo owners and, eventually, national maritime administrations came to require such independent expert documentation for the standard of the vessels they were to insure, charter or register.32 Ultimately, having a classification certificate in order became implicitly equal to a ‘ticket to trade’. This in turn prompted shipowners to begin demanding a certification system which also took better care of their own needs. Above all, they wanted a service which helped them to document that a vessel conformed to a given class rating not only on the day of inspection but also over a longer time span. That led to a system of time-limited certificates supported by periodic inspections and predictable rules for renewal or withdrawal. To assist the industry further with predictability, the classification societies also began applying the vast experience they had acquired over time to developing rules on how vessels should be built and maintained in order to be eligible for a given set of class certificates. The issue of whether a vessel had a classification certificate thereby became an enabler of—or a constraint on—the way its owner used this asset. In other words, the private rule-making activities of the classification societies had come to influence ‘economic actors to do things they would otherwise not do’. According to Tim Büthe, this is the moment when a private regulator— such as the classification societies in this case—moves into a governance role.33 Societies with better rule-development capabilities also gained an upper hand in an increasingly competitive world market for maritime classification services. The predictability and guidance created by this rule-­ based approach also appealed to new groups of potential customers, such as shipyards and equipment manufacturers, who saw the added value of what was on offer.

1 INTRODUCTION 

9

However, these changes also implied that the recipient of the classification invoice gradually shifted from insurers and cargo owners to shipowners.34 In other words, the inspected party also became the party paying the inspector. A potential seed of doubt about the impartiality of classification was thereby also sown.35 Few scholars have addressed the different roles of the classification societies and the way these interact and possibly interfere with each other. Felix Goebel provided a notable exception when he presented his combined economic and legal study of classification societies in 2017.36 Looking at their role in international maritime safety governance, he argued that, at core, these societies are information intermediaries. Their services could therefore best be compared with such actors in the financial market as credit rating agencies, which also assess the quality of products in accordance with self-developed private standards. This, Goebel maintains, is why an unregulated maritime classification market cannot develop optimal minimum safety standards.37 The Role of the Flag State By the second half of the nineteenth century, the classification societies had nevertheless become the backbone of international maritime safety governance. But other actors—both private and public—were also defining and developing their roles within this framework. Most importantly, governments—once again with the UK in the lead—consolidated their involvement as flag states by introducing statutory requirements for vessels in their respective registers.38 Such statutory regulations initially related mostly to navigational issues. But the great breakthrough came with the introduction of legally imposed vessel buoyancy requirements, or load-line rules, in the 1860s.39 These differed in scope from the typical classification rules and requirements in that they did not primarily set technical standards but addressed issues of vessel operation. The load-line rules, and what came to be known as the Plimsoll mark (Fig. 1.1), grew out of increasing public and political outrage over an ultra-liberal maritime economy long characterised by an almost total absence of concern for human life and the wellbeing of seafarers.40 In this respect, the emergence of government intervention in the shipping business was merely a mirror image of a much wider social awakening sparked by the industrial revolution on land. Indeed, British MP Samuel Plimsoll, who pioneered the

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The Plimsoll mark is a reference mark located on a ship’s hull that indicates the maximum depth to which the vessel may be safely immersed when loaded with cargo. This depth varies with a ship’s dimensions, type of cargo, me of year, and the water densies encountered in port and at sea. The le
ers on the mark have the following meaning: The le
ers on each side of the circle indicates the name of the classificaon society, in this case the ship will have been cerfied by Det Norske Veritas. Furthermore, the le
ers on the various load lines have the following meaning: TF: Tropical Freshwater, F: Freshwater, T: Tropical Seawater, S: Summer Seawater, W: Winter Seawater, WNA: Winter North Atlanc

Fig. 1.1  The Plimsoll mark

load-line rules, was directly inspired by preceding advances in the protection of coal miners.41 The Titanic disaster in 1912 became a watershed for government involvement as a shipping regulator. Much assisted by growing newspaper circulations and other information exchange, public indignation exploded, and government investigations were launched on both sides of the Atlantic within days.42 The first ever international conference on the safety of life at sea was called only a few weeks after the disaster. Attended by representatives from many nations, this resulted in embryonic legislation which later evolved into the international convention on safety of life at sea (SOLAS). This has subsequently been amended and expanded many times, most recently into the continuously updated 1974 IMO SOLAS convention we know today.43 The consequence of these developments was that, by the mid-twentieth century, governments in their capacity as flag states had intervened forcefully in a governance set-up which had previously been defined and controlled by mostly private actors through private contractual arrangements. But these statutory rules, for the most part, supplemented rather than replaced the long-established classification system. And, unlike the private arrangements of vessel classification, which had been recognised throughout the maritime world for centuries, systematic harmonisation of national flag state rules remained limited and mostly ad hoc right up to the Second World War.44 During that conflict, however, substantial and formalised maritime cooperation developed between the allied governments.

1 INTRODUCTION 

11

Maritime regulation therefore also became a natural part of post-war efforts to establish a law-based international order. The UN called a marine conference in Geneva in 1948 and a convention establishing the International Maritime Consultative Organisation (IMCO) was signed the same year.45 A process of international codification and institutionalisation of the many maritime governance principles which had already been shared and developed in practice by allied governments began, and the largely codified hybrid private-public regulatory regime which still governs shipping today took shape.46 However, major disagreements meant it was another 10 years before the IMCO convention entered into force. One of the main contentious issues related to the powers which the new organisation should be granted. Was it to have fully-fledged treaty-making capabilities or be limited to a consultative role? Another fiercely debated issue was whether the organisation should cover all aspects of shipping policy, including economic and commercial issues as well as market regulation, or be confined to technical questions only? Opinions also differed over how far private organisations—representing the shipowners, for example—should be allowed a seat at the table.47 The consequence was that the organisation only began its work in 1958, and many of these early lines of conflict have remained visible to this very day.48 Open Registers and ‘Sovereignty for Sale’ As early as the 1920s, Panama developed its shipping register into what has become known as an ‘open register’ or ‘flag of convenience’ (FOC).49 This involves a state inviting shipowners from anywhere in the world to register their vessels under its flag. Unlike a traditional flag state, it will apply few if any requirements for owners to document ‘genuine links’ to its jurisdiction—such as establishing a head office or some form of local ownership.50 Registering a ‘brass plate’ company will usually be enough of a presence and, since these states compete over ship registrations, taxes and fees will frequently be kept to a minimum. Most importantly, the typical open-register state will not impose any nationality requirements for the vessel’s seafarers. That in turn allows the owner to recruit low-cost crew in the global labour market and thereby largely avoid unionised bargaining power.51 Historically, too, most open-register states have been characterised by lax—or, perhaps more accurately, poorly enforced—safety and environmental standards.52

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One of the many paradoxes in the history of international maritime regulation is that the entire concept of open-register shipping is largely a US construction but meets the needs of other industrialised countries as well. From the emergence of Panama’s register in the 1920s via Liberia’s in the post-war era to the Marshall Islands today, these have all been developed in close collaboration with successive US governments. The USA saw strategic as well as national economic and political benefits in allowing American corporations that operated vessels as part of their supply chain, to distance themselves from domestic US labour legislation as well as national financial and fiscal affairs.53 Alan W. Cafruny has explained how these downward pressures on international shipping regulation have been inflicted on the maritime regulatory regime not only by market forces, but also as much by policy choices in the leading industrialised and shipowning nations. Throughout the twentieth century, he finds, leading Western world economies have prioritised securing cheap supply chains for raw materials over regulatory convergence on higher standards.54 But an indisputable result was that a regulatory race to the bottom took off in the international shipping industry as these open-register states grew their combined fleets throughout the twentieth and early twenty-first centuries.55 As part and parcel of the liberalisation and globalisation processes in international trade and finance during the late twentieth century, the open-register system—just like offshore banking and tax havens—became mainstream (Fig. 1.2).56 When the IMCO convention finally entered into force and the organisation convened for the first time, the fleets under the Panamanian and Liberian flags had begun to make their mark on the world fleet (Table 1.2). Preparing for that first meeting in 1958, therefore, the leading European shipping nations—most of them also IMCO founding members—sought to exclude what they regarded as ‘fake’ flag states. They argued that the lack of a genuine link between these flags and their largely foreign owned, crewed and managed fleets meant that the convention’s criterion for determining a ‘registered fleet’ could not apply to them. In other words, such open-register states could not be counted when distributing the chairs in IMCO’s governing bodies.57 However, Panama and Liberia objected, and the issue came before the UN International Court of Justice (ICJ). In 1959, the ICJ ruled in favour of the Panamanians and Liberians by finding that ‘registered fleet’ meant exactly that and nothing more, nothing less.58

1 INTRODUCTION 

13

35% 30% 25% 20% 15% 10% 5% 0%

1955

1960

1965

1970

1975

1980

1985

1990

Source: Data for Liberia and Panama for the year 1960 derives from Lloyd's World Fleet Report, 1960. The world total for 1960 from the UNCTAD Marime Transport Review 1970 Fig. 1.2  Share of world fleet in GRT under flags of convenience (FOC), 1955–1990 Table 1.2  Growth in FOCa fleet 1939–1960 (in million GRT) Year

Total world fleet

FOC

Percentage

1939 1950 1960

68.5 84.5 112.4

0.72 3.6 16.5

1.05 4.26 14.68

Source: Lloyd’s Statistical tables, 1939 to 1960 Panama and Liberia

a

Nevertheless, open registers remained a bone of contention. In the 1980s, under the auspices of the UN Conference on Trade and Development (UNCTAD), the international community made a further and so far final attempt to require some form of genuine link between a state and the ships registered under its flag.59 Yet the 4 years it took to negotiate the Ship Registration Convention coincided with the period where the process of shifting the western industrial world’s fleet from national flag to open

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800 700 600 500 400 300 200 100 0

1980

1985 World total

1990 OECD

1995 FOC*

*The five major FOCs of the periode, Liberia, Panama, Cyprus, Bahamas and Bermuda Source: UNCTAD Report on Maritime Transport (RMT) 1990 Table 9, p 19 and UNCTAD RMT 1995 Table 7, p 19

Fig. 1.3  Evolution of OECD fleet in mill. DWT compared to group of FOCs and world fleet, 1980–1995

registers gathered pace (Fig. 1.3). As outlined by Stig Tenold, there were several drivers behind these developments, including geopolitical upheaval, globalisation and deregulation, all which coincided with desperate economic conditions prevailing in global shipping markets.60 When the convention was adopted in 1986 and proceeded into potentially lengthy national ratification processes, the restructuring of the flag state system had largely become a fait accompli. The political focus and strategies of western governments shifted from hindering their fleets from flagging out to attempting to lure them back. This led in the late 1980s to the creation of the many ‘international’ or ‘second’ ship registers around Europe, such as the Norwegian international ship register (NIS) and its equivalents in Denmark (DIS), France (French Arctic Territories) and elsewhere (Table 1.3). The UK established its own solutions around the choice of flags available within the Red Ensign Group.61 A common belief was that the apparent regulatory race to the bottom in shipping could be countered by combining some of the competitiveness measures of the open registers—particularly the absence of any nationality requirement for seafarers—with the better safety and environmental governance standards associated with the traditional European flags.62

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Table 1.3  The switch to European second registers, some selected countries, 1985–1994 (in million GRT) Country

Total fleet 1985

Total fleet 1994

Denmark

4.94

5.7

France

8.23

4.32

15.34

22.38

Norway

Breakdown 1994

% of total

Danish register DIS French register French Antarctica Norwegian register NIS

0.58 5.12 2.12 2.20 2.38 20.0

Source: Lloyd’s Statistical tables, 1985 and 1994

Panama Bahamas

Liberia Cyprus

Marshall Islands

Malta

Rest of world fleet

Source: UNCTAD Review of Maritime Transport 2021, Table 2.5, p 38

Fig. 1.4  Six major FOCs’ proportion of world fleet in 2021

10.2 89.8 49.1 50.9 10.7 89.3

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International Regulatory Convergence: Or ‘Race to the Bottom’? Today close to 55% of the world fleet operates under six leading Flags of Convenience (Fig.  1.4), and out of these, Panama, Liberia and the Marshall Islands alone account for nearly 45%.63 All these are purely commercial operations, with the latter two even managed as corporations through private US incorporated companies. A proportion of the turnover is then transferred back to the respective flag states in compensation for leasing their national sovereignty rights.64 Paradoxical as it may seem, the US—and gradually the rest of the industrialised world—have driven and supported this development. Cost efficient supply chains gained priority over the control of a national flagged fleet.65 From a regulatory perspective, the systemic shift from a world fleet chiefly under ‘genuine’ national flags in the late 1950s, and over to one increasingly under FOCs in the 1980s, brought numerous challenges. Most importantly, many of these new flag states lacked the necessary know-how and national administrations to enforce their obligations as flag states.66 Furthermore, the change brought a whole new way of ship operation, where the seafarers that previously were mostly of the same nationality as the owners and the flag of the vessel, were now to be recruited through crewing agencies worldwide. With it followed training, certification and language challenges and increased organisational distance between the various elements of the operation. On the verge of the twenty-first century, therefore, shipping regulation found itself caught in a race towards the lower common denominator.67 Much of what had earlier been regulated at national public level, not only concerning the vessels themselves, but also related to seafarers, became privatised, internationalised and subject to competition. However, in the age of ‘globalisation’, this downward pressure on regulatory standards was not confined to the international shipping sector only. Much research went into such issues in the world economy in general, and David Vogel notably challenged the prevailing notion that trade liberalisation automatically creates a race to the bottom in terms of regulatory standards.68 Rather, he argued, liberalised international markets lead under certain circumstances to a regulatory “race to the top”, a phenomenon Vogel dubbed “the California effect”.69 A few years later, Vogel together with Robert A Kagan broadened the scope by together looking at the more general relationship between globalisation and regulatory convergence across a number of segments of the world economy.70 The

1 INTRODUCTION 

17

two of them found scant evidence to support the notion that globalisation automatically led to a downward regulatory spirals. However, they identified exceptions, with regulation of international maritime transport standing out amongst these.71 So, why would that be? Elizabeth R DeSombre made a contribution to answering this question.72 She went straight to the heart of the matter by immediately bringing to the fore the role played by the open register system and its reliance on the enshrined principles of sovereignty and freedom of the seas. DeSombre points to the paradox that competition from these registers was largely masterminded by the countries which found themselves at the higher end of the regulatory scale, and which were therefore also those most vulnerable to the competition they represented. As she observes, “shipowners respond by flying these convenient flags in an effort to compete internationally through lower operating costs”.73 By 2006, however, when DeSombre published her book, she found that—contrary to what might be expected—the shipping sector did not in fact appear to be moving relentlessly towards regulatory convergence at the bottom. Rather, what seemed to be happening was that the downward pressures were counteracted by other forces which once again appeared to be orchestrated by the highly regulated industrial countries. DeSombre found that the persistent race to the bottom which had indeed taken place in the last quarter of the twentieth century as the world fleet switched from high-cost OECD flags to lower-cost alternatives, served to mobilise political counterforces in the high-cost countries.74 She concluded that the maritime regulatory regime was actually subject not so much to a sustained race to the bottom as to a gradual race to the middle. This was given material form by port state control (PSC).75 Originating in the USA and then followed up forcefully by the EU, PSC is a mechanism which allows states to exercise their sovereign right to check that foreign-flag vessels entering their ports are equipped and maintained in accordance with international rules. These port and coastal state rights were enshrined in the UN law of the sea convention (UNCLOS) in 1982 and are meant to provide a balance against flag state rights under the same convention.76 DeSombre shows that, while new states joining the open-register ranks have often been lax on rule enforcement to begin with, the PSC system has contributed to a levelling out around the regulatory mean.

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According to the UNCLOS, any sovereign state also has a right to register ships under its flag and to sail these freely on the world oceans.77 However, these rights are accompanied by obligations according to which, “Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea [with regard to such aspects as] the construction, equipment and seaworthiness of ships”, and to make sure “that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships.78

As we have seen, the systemic shift from a world fleet sailing mainly under ‘genuine’ national flags to one operating largely in open registers, brought with it many regulatory challenges. Most importantly, several of these more commercial flag states lacked both the political will and the resources necessary to fulfil the obligations they had accepted when signing an increasing number of IMO conventions and, of course, the UNCLOS in 1982.79 Yet a remedy for this was provided by the IMO SOLAS convention and mirrored in several other international conventions.80 Precisely because many flag states were known to lack the expertise, personnel and general ability to follow up a global fleet, flag states have been given an option to delegate mandatory inspections and surveys of their registered vessels to ROs.81 The surveyor network and knowledge base of the classification societies provided legitimacy when inspections and surveys were delegated. As a consequence, therefore, and driven by the past half-century massive growth in open registers described above, these societies came to be entrusted—on a large scale—with an additional role as an extended arm of the flag state administrations of numerous governments around the world. In this role, later to be known as ‘RO’ (Recognised Organisations), the classification societies work under delegated authority from the flag states concerned. At present, the typical position is that the same society provides both classification and RO services related to the one and same ship during this vessel’s new building phase and when it is in service. While the classification role is rooted in a private contractual arrangement with a shipowner and/or a shipyard, the RO’s job is to supervise the vessel’s compliance with statutory requirements on the basis of authority delegated from the government of the flag state. This dual role has grown incrementally over the decades

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Table 1.4 Degreea of EU Member State delegations of authority to ROs in the issuing process of ISMb certificates Certificate Document of compliance (ISM for the company) Safety management certificate (ISM for ship)

Full delegation

Partial delegation

No delegation

Audit

63%

7%

15%

Certificate Audit

44% 67%

7% 11%

33% 7%

Certificate

48%

7%

30%

Source: EMSA, European Maritime Safety Report 2022, Table 23, p. 89 Data incomplete due to under-reporting from some Member States The degree of delegation from flag state authorities to ROs will vary from Convention to Convention and from Code to Code, but these statistics collected by EMSA for 2022 provides an illustration of the degree to which (EU) flag states are delegating tasks—auditing and/or issuing of corresponding certificates— related to the IMO’s International Safety Management Code (ISM) a

b

and led to an even closer interrelationship between private and public governance in the maritime safety regime, as illustrated for example by EU practice (Table 1.4).82 It is into this stream of events that the European Community (EC) and its European Union (EU) successor emerged as an actor in maritime safety and environmental regulation.83 Although various efforts to establish a common European maritime policy can be traced back to the 1970s, it was the sinking of the Braer 1993, followed by the Erika in 1999 and the Prestige 3 years later, which really brought the EU onto the scene. This study will showcase how the EU maritime engagement developed in response to the political chocks created by the successive shipwrecks.84 But it will also demonstrate how the EU’s ascent to a major maritime safety regulator were accelerated—and accentuated—by the way these processes came to interfere with the prevailing forces of European integration of the time. Although the EU’s rise as a maritime regulator in the late twentieth century grabbed headlines and dominated agendas as far up the scale as G7 summits, literature on the subject remains limited. This book aims at bringing some light to this fascinating story. However, in order to adequately address this task some key analytical concepts must be presented and explained to the reader.

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Some Analytical Tools and Concepts International Regimes The brief run-through of the historical evolution of maritime safety governance above, provides a glimpse on how the international regulatory set-up has evolved over time. This incremental development has encompassed a variety of actors, private and public, who have interacted and agreed on sets of rules and modus operandi on which maritime safety governance depends. A construct of this kind resembles what international relations literature describe as an ‘international regime’. The notion of a regime as defined by Stephen B Krasner has therefore been chosen as analytical category. According to this definition an international regime consists of “principles, norms, rules and decision-making procedures around which actors’ expectations converge in a specific issue area”.85 However, where Krasner largely confines the use of the concept to describing the interaction between states, I apply it here as encompassing non-state actors as well. To do so seems particularly relevant in the maritime sector, where the classification societies—an integral part of the regime—perform a dual role which is part private and part governmental. A regime will typically not be codified. Rather, it provides an infrastructure within which agreements can be reached and regulation made. Moreover, regimes do typically not come about through formal procedures and agreements but by way of converging practices and consolidating historical and long-lasting knowledge patterns.86 However, while regimes are difficult to alter in a planned or guided fashion, they change continuously in response to their own inner dynamics as well as a variety of political, economic and social factors in their environment.87 Oran R Young identifies three major types of pressures which may result in regime change, namely internal contradictions, shifts in underlying power structures and exogenous forces.88 I will refer to all three categories throughout. The fact that regimes tend to be complex makes it tempting to approach them in a reductionist way, for example by studying them in static terms or only in part.89 But regimes develop and change, and gaining a better understanding of such decades-long processes forms part of the motivation for this study. And, as indicated by the brief historic overview earlier in this introductory chapter, it is not that obvious which actors set the

1 INTRODUCTION 

21

rules and which are the ones ruled. Rather, the point is that, viewed over time, the regime is in continuous evolution with grey zones and anomalies appearing and disappearing under way. Amongst the many actors in the maritime safety regime, I concentrate my attention primarily on the flag states, the port states and the mostly private classification societies. The rational for making this selection is that these actors may particularly— even if at different moments—possess the power, interests and/or knowledge required to influence the principles, norms, rules and procedures of the regime. And all three are also subject to the regime itself, albeit to varying degrees. Having introduced some key aspects of an international regime, it is time to briefly present a few more tools which might help us better understand the workings of the EU and, as a consequence, the EUs interaction with the international maritime safety regime. Institutional Interaction The international maritime safety regime and the EU may both be seen as ‘institutions’, and this study will look at the interaction between the two.90 Instead of taking a one-way view from one ‘source institution’ to one ‘target institution’, I am interested in the dynamics of two-way interaction over decades—with particular attention to moments when the institutions are being challenged by the forces of unforeseen external events. Summing up a comparative anthology on institutional interaction between the EU and a number of international environmental governance institutions, Sebastian Oberthür and Thomas Gehring identify four main types of causal mechanisms which drive institutional interaction and which might have an impact on the receiving institution’s target of governance.91 The four are “cognitive interaction”, “interaction through commitment”, “impact level interaction” and “behavioural interaction”, and I will to a certain extent make reference to all four.92 ‘Normal’ Versus ‘Abnormal’ Accidents Before ending this brief introduction to some of the key analytical concepts with a look into aspects of EU integration theories, a couple of further comments related to Charles Perrow, might be appropriate. In terms of timeline and structure, this entire book is built around a successive range of accidents. In Charles Perrow’s seminal work referred to earlier in

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this chapter, Perrow offers an analysis of the social side of technological risk and argues that the conventional engineering approach to ensuring safety—building in more warnings and safeguards—fails because systems’ complexity makes failures inevitable and thereby also produces “normal accidents”.93 And indeed, within the maritime industry, such normal accidents have been considered the unfortunate but unavoidable impetus for developing— but not fundamentally challenging the regime. In Perrow’s sense, such accidents are therefore endogenous; they are inherent to the regime itself. However, some accidents have more impact than others, and end up triggering chain reactions which in turn transform into exogenous forces challenging the very regime—from the outside.94 In this book I chose to call these accidents ‘abnormal accidents’ because of the effects they got on the regime itself - through institutional interaction. EU, Regulation and the Brussels Effect An underlying assumption in this book is that the EU can best be understood as a polity on its own.95 From this perspective, the EU is a source of authoritative policy outputs to which a range of demands and supports are being fed. The system which produces these policy outputs is institutionalised and these well-established institutions are assigned functions—executive, legislative, bureaucratic and judicial—which resemble the classic design of all political systems.96 Moreover, the EU political system is full of actors pursuing their interests and looking to secure a close correspondence between their policy preferences and policy outputs. As part of these processes even the assignment of functions between the EU institutions may become altered and rebalanced. It is within the perspective of such a dynamic interplay that the chain of maritime accidents which structure this study became important exogenous forces. In order to appreciate the internal EU processes which in turn influence the institutional interaction under study in the next chapters, it is advisable to keep an eye on the EU processes from a wide angle. By the standards of any regional integration scheme, the EU is far more institutionalised in that it relies on a distinctive set of supranational institutions as well as several intergovernmental bodies. Observing these institutions in action, four points are particularly worth noting.97 First, the founders of the European Communities sought to capture their desired balance between national and supranational forces through careful institutional design. Even though the institutional

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structure of European integration has remained remarkably resilient over its six decades of existence, most will agree that the balance has significantly altered with time.98 Second, close observers often notice the growth of distinct cultures between and within the various EU institutions. Third, it has been well documented how various kinds of informalities have developed as integral parts of the formally institutionalised processes. And four, this highly institutionalised EU polity has developed distinct multilevel characteristics. All four provide useful entries for understanding the processes outlined in this book. Finally, I will round up this introductory chapter with some further comment on two EU theorists specifically since I draw quite extensively on them both throughout my analysis: Giandomenico Majone and Anu Bradford. Majone was puzzled by the fact that, whilst an almost permanent characteristic of European integration seems to have been a general reluctance by Member States to transfer competence from national to supranational level, the amount of regulation at EU level has nevertheless expanded vastly.99 This is certainly a description that fits the maritime policy field. Majone finds that explaining this becomes easier when drawing a distinction between two main functions of government and types of policy development along the dichotomy “regulatory” versus “non-regulatory”. With his “regulatory supply and demand” model, where the Commission with its exclusive right of legislative initiative is on the supply side, Majone provides us with some appropriate tools for analysing the EU’s preference for policy making by regulation. The point is that, owing to almost chronic budgetary constraints combined with the Commission’s prerogative to make formal proposals, there are strong incentives for choosing the regulatory route wherever possible. On the demand side of the model, we find the private sector with its often multinational firms, as well as trade unions and NGOs, all of which tend to prefer harmonised international (or, in the case of the internal market, regionalised) requirements to a patchwork of national rules and regulations which make it difficult and costly to comply and compete. But, as Majone also points out, much EU research has documented that the strongest and most frequent actors on the demand side are actually the Member States themselves.100 This implies that, even though the Commission has the right to initiate, the proposals it presents will quite

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frequently have been initiated by one or more Member States pursuing their own particular interests through triggering Commission action. While Majone offers useful insights that helps explaining regulatory activity in the EU, his tools have less to offer in determining how and when EU legislation acquires impact in a global dimension. Here, Anu Bradford offers a framework for analysis and explanation with her theory of the Brussels Effect.101 According to Bradford “the Brussels Effect emanates as a result of a combination of bestowed market size, political decision-­making, and market forces that drive corporate behaviour”.102 For the Brussels Effect to materialise, Bradford suggests that, in addition to the EU’s substantial “market size” and unique “regulatory capacity”, three more elements underpin the effect. These are “stringent standards” defined in terms of the ability to promulgate and enforce regulation, “inelastic targets”—i.e. objects of regulation which are unable to evade such controls—and “non-divisibility”, which refers to the regulated object’s incentives to standardise across jurisdictions based on the most stringent requirements, rather than customising.103 This book seeks to demonstrate how the maritime safety domain became a case in point as the Brussels Effect developed into a key instrument for EU influence on some important aspects of the international regulatory regime. At the same time, it also suggests that the outcome was neither the result of unilateral EU influence nor of regulatory market forces alone. Rather, the changes identified must be understood in the light of institutional interaction which involved private actors, international organisations, individual countries—and the EU.

Notes 1. Commissioner Neil Kinnock, speech/98/117, Quality Shipping Conference, Lisbon, 4 June 1998. 2. French oil major Total had merged with Belgian oil company Fina only months before the Erika sank. Shortly thereafter, Total Fina bought another French oil company Elf Aquitaine, and the new group was renamed Total Fina Elf before becoming only ‘Total’ again in 2003. 3. Report of the enquiry into the sinking of the Erika of the coast of Brittany on 12 December 1999, Permanent Commission of enquiry into accidents at sea (CPEM): 9–10. 4. Charles Perrow, Normal Accidents: Living with High Risk Technologies (Princeton: Princeton University Press, 1999).

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5. Perrow: 176–177. 6. Wout Broekema, “Crisis-Induced Learning and Issue Politicization in the EU: The Braer, Sea Empress, Erika, and Prestige Oil Spill Disasters,” Public Administration 94, no. 2 (2016): 381–398. 7. Edgar Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law (Lexington, Mass: Lexington Books, 1981): 1–19 8. Hugo Grotius in Robert Feenstra, Mare Liberum 1609–2009 (The Hague: Brill, 2009). 9. Martine Julia Van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights and the Rise of Dutch Power in the East Indies, 1595–1615 (Leiden: Brill, 2006). 10. Gold, Maritime Transport: 43–50. 11. Lilian del Castillo, ed. Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea Liber Amicorum Judge Hugo Caminos (The Hague: Brill, 2015). 12. Van Ittersum, Profit and Principle. 13. Lauren A. Benton, A Search for Sovereignty: Law and Geographies in the European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010). 14. Gold, Maritime Transport. 15. Lauren A Benton and Nathan Perl-Rosenthal, A World at Sea: Maritime Practices and Global History (The Early Modern Americas). (Philadelphia: University of Pennsylvania Press, 2020): 9. 16. Benton, A Search for Sovereignty. 17. Matthew Taylor Raffety, “‘The Law Is the Lord of the Sea’: Maritime Law as Global Maritime History,” in A World at Sea, in Lauren Benton and Nathan Perl-Rosenthal eds. (Philadelphia: University of Pennsylvania Press, 2020). 18. Gold, Maritime Transport. 19. Daniel Defoe, The Complete English Tradesman (1725), quoted in Niall Ferguson, Empire. How Britain Made the Modern World (London: Penguin Books, 2004): 12. 20. Ferguson, Empire. How Britain Made the Modern World (London: Penguin Books, 2004). 21. See for example William Dalrymple, The Anarchy: The East India Company, Corporate Violence and the Pillage of an Empire (London: Bloomsbury, 2019). 22. Gold, Maritime Transport. 23. Nick Robins, The Corporation That Changed the World: How the East India Company Shaped the Modern Multinational (London: Pluto Press, 2012).

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24. Marcus Buford Rediker, Villains of All Nations: Atlantic Pirates in the Golden Age (London: Verso, 2004). 25. Rediker. 26. Nicolette Jones, The Plimsoll Sensation. The Great Campaign to Save Lives at Sea. (London: Little Brown, 2006). 27. People’s lives were much more expendable then than they are today and attracted nothing like the concern aroused by the loss (in monetary terms) of valuable cargoes and vessels. 28. David Jenkins and Takau Yoneyama, eds, History of Insurance, vol. 7 (Cambridge: Cambridge University Press, 2011). See also Cameron and Farndon, Scenes from the Sea and the City, Lloyd’s List 1734–1984, Lloyd’s List 250 years anniversary special supplement (London: LLP, 1984). 29. Nigel Watson, Lloyd’s Register: 250  Years of Service (London: Lloyd’s Register, 2010). 30. Watson, Joe Evangelista and Stewart H.  Wade, The History of the American Bureau of Shipping 150th Anniversary (Texas: ABS, 2014); Gard Paulsen et  al., Building Trust: The History of DNV 1864–2014 (Lysaker: Dinamo forlag, 2014). 31. Paulsen, Building Trust. 32. Philippe Boisson, “Classification Societies and Safety at Sea: Back to Basics to Prepare for the Future,” Marine Policy 18, no. 5 (September 1, 1994). 33. Tim Büthe, “Private Regulation in the Global Economy: A (P) Review,” Business and Politics 12, no. 3 (2010): 1. 34. Boisson, “Classification Societies and Safety at Sea.” 35. This dilemma—or anomaly—would later become an issue in the industry’s relationship with the EU. 36. Felix Goebel, Classification Societies: Competition and Regulation of Maritime Information Intermediaries (Zurich: LIT Verlag Gmbh, 2017). 37. Goebel. 38. John N.K Mansell, Flag State Responsibility: Historical Development and Contemporary Issues (Berlin: Springer, 2009). 39. Jones, The Plimsoll Sensation. 40. Jones. 41. Jones. 42. Thomas William duBarry, “Safety of Life at Sea: A Retrospective Look,” Steamboat Bill 66/3 (2009): 24–33. 43. International convention for the safety of life at sea (SOLAS). 44. Sarah Palmer, “Leaders and Followers: The Development of International Maritime Policy in the Nineteenth Century,” International Journal of Maritime History 17, no. 2 (December 2005): 299–309.

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45. IMCO was renamed the International Maritime Organisation (IMO) in 1978 following a convention amendment which changed it from a purely consultative body into a treaty-making organisation. 46. Gold, Maritime Transport: 233–291. 47. Agustín Blanco-Bazán, “IMO—Historical Highlights in the Life of a UN Agency,” Journal of the History of International Law / Revue d’histoire Du Droit International 6, no. 2 (2004): 259–283. 48. Hélene Lefebvre-Chalain, la Stratégie Normativede l’Organisation Maritime (OMI) (Aix-En-Provence: Presses Universitaires d’Aix-­ Marseille, 2012): 27–54. 49. For all practical purposes, the terms open register and flag of convenience are synonymous. However, both have rather politicised connotations. “Open register” tends to be rather more “neutral”, although tilting towards the interests of economic liberals and shipowners, while the FOC label has been used by opponents of the system and maritime unions in particular. The International Transport Federation (ITF) has run campaigns against the FOC system almost since its creation. This study will treat the two as synonyms and use them both as such. 50. Mansell, Flag State Responsibility. 51. Francisco J. Montero Llácer, “Open Registers: Past, Present and Future,” Marine Policy 27, no. 6 (November 1, 2003): 513–523. 52. Elizabeth R.  DeSombre, Flagging Standards: Globalization and Environmental, Safety, and Labor Regulations at Sea (Cambridge, Mass: MIT Press, 2006). 53. Rodney P. Carlisle, “Sovereignty for Sale: The Origins and Evolution of the Panamanian and Liberian Flags of Convenience,” Naval Institute Press VII (1981): 71–79. 54. Alan W. Cafruny, Ruling the Waves, The Political Economy of International Shipping (Berkeley: University of California Press, 1987): 89–114. 55. “Ships, Slaves and Competition” (The international Commission on Shipping, 2000); L.  Kovats, “How Flag States Lost the Plot over Shipping’s Governance. Does a Ship Need a Sovereign?,” Maritime Policy & Management 33, no. 1 (2006): 75–81. 56. Nicholas Shaxson, Treasure Islands: Tax Havens and the Men Who Stole the World (London: Bodley Head, 2011). 57. The size of fleet (register tonnage) under a given member state’s flag remains a key factor in the power distribution under the IMCO convention. 58. Blanco-Bazán, “IMO—Historical Highlights in the Life of a UN Agency.” 59. Cafruny, Ruling the Waves.

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60. Stig Tenold, “The declining Role of western Europe in Shipping and Shipbuilding, 1900–2000”, Shipping and Globalization in the post-War Era, Contexts, Companies, Connections (Cham CH, Palgrave Macmillan, 2019) 61. The Red Ensign Group (REG) is a group of British shipping registers, consisting of the UK as well as its Crown Dependencies—the Isle of Man, Guernsey and Jersey—and the Overseas Territories of Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, St Helena and the Turks & Caicos Islands. 62. Gunnar K. Sletmo and Susanne Hoste, “Shipping and the Competitive Advantage of Nations: The Role of International Ship Registers,” Maritime Policy & Management 20, no. 3 (January 1, 1993): 243–255. 63. Throughout history various shipping registers have ‘come and gone’ in terms of being defined as FOCs. The Marshall Islands register for example was hardly an option ten years earlier (1990). 64. For an interesting analysis of the concept of sovereignty and the global community of nations’ tacit acceptance of putting sovereignty “up for sale”, see J.  Samuel Barkin, The Sovereignty Cartel, (Cambridge, Cambridge University Press, 2021) 65. Cafruny, Ruling the Waves. 66. The 1982 UN Law of the Sea Convention (UNCLOS) Art 94, states for example that “Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea [about such aspects as] the construction, equipment and seaworthiness of ships”, and to make sure “that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships”. 67. See for example the Australian Government report “Ships, Slaves and Competition” (The international Commission on Shipping, 2000); and L. Kovats, “How Flag States Lost the Plot over Shipping’s Governance. Does a Ship Need a Sovereign?,” Maritime Policy & Management 33, no. 1 (2006): 75–81. 68. For the concept of a regulatory race to the bottom, see for example Herman Daley on the “Delaware effect” in “The Perils of Free Trade”, Scientific American, November (1993). 69. David Vogel, Trading up: Consumer and Environmental Regulation in a Global Economy (Cambridge, Mass: Harvard University Press, 1995). 70. David Vogel & Robert A Kagan, Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies (Berkley: GAIA books, 2002). 71. Dale D.  Murphy, “The Business Dynamics of Global Regulatory Competition,” in Dynamics of Regulatory Change, David Vogel & Robert A Kagan eds.

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72. DeSombre, Flagging Standards. 73. DeSombre: 3. 74. Piniella, Castro and Aragonés, “Maritime Safety Control Instruments in the Era of the Globalisation,” Journal of Maritime Research II, no. 2 (2005): 19–39. 75. DeSombre, Flagging Standards: 87–135. 76. See articles 27 and 28, UNCLOS. For further discussion of the legal foundation and political rationale of port state control, see Z Oy Özçayır, Port State Control, 2nd edition (London: LLP, 2004). 77. See article 91, UNCLOS. 78. See article 94, UNCLOS. For further discussion of the legal foundation and political rationale of flag state rights and obligations, see for example Mansell, Flag State Responsibility. 79. In fact, many of these flag states were also initially reluctant to sign some of the key conventions but were gradually forced to do so by the international community, notably through PSC. 80. Chapter 1, Regulation 6 (a & b), SOLAS convention. But see also the MARPOL and load line conventions. 81. Mansell, Flag State Responsibility. 82. Kristina Maria Siig, “Private Classification Societies Acting on Behalf of the Regulatory Authorities within the Shipping Industry,” Scandinavian Institute of Maritime Law Yearbook (2016). 83. Until 1967 the EC actually consisted of three communities, the European Economic Community (EEC), the European Coal and Steel Community (ECSC) and EURATOM. These were merged in 1967 to the European Community (EC), which in turn became the EU through a number of treaty changes in 1993. 84. Wout Broekema, “Crisis-Induced Learning and Issue Politicization in the EU” 85. Stephen D.  Krasner, ed., International Regimes, Cornell Studies in Political Economy (Ithaca, N.Y: Cornell University Press, 1983). 86. Martti Koskenniemi, “Miserable Comforters: International Relations as New Natural Law,” European Journal of International Relations 15, no. 3 (2009). 87. Oran R. Young, “Regime Dynamics: The Rise and Fall of International Regimes,” in International Regimes, Stephen R.  Krasner, ed., (Ithaca, N.Y: Cornell University Press, 1983): 113. 88. Young: 93–113. 89. Arild Underdal, “Methodological Challenges in the Study of Regime Effectiveness.,” in Regime Consequences: Methodological Challenges and Research Strategies. Arild Underdal and Oran R Young eds, (Dordrecht: Kluwer Academic Publishers, 2004): 27–48.

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90. An institution is taken to mean “a collection of rights, rules, and decision-­ making procedures that give rise to social practices, assign roles to the participants in these practices, and guide interactions among the participants”, ref. Oran R. Young, “Sugaring off: Enduring Insights from LongTerm Research on Environmental Governance.” International Environmental Agreements; Politics, Law and Economics 13, no. 1 (2013): 87–105. 91. Sebastian Oberthür and Thomas Gehring eds, Institutional Interaction in Global Environmental Governance: Synergy and Conflict among International and EU Policies (Cambridge, Mass: MIT Press, 2006): 9–10. 92. In two of the four, interaction affects the decision-making processes of the target institution. In case of “cognitive interaction” change takes place due transfer of knowledge from one institution to the other. Interaction may also lead to change through commitments agreed within the source institution, but which impact on the constellation of interests in the target institution influencing the payoffs of available options. This is called “interaction by commitment”. The other two types of interaction affect the effectiveness of the target institution within its domain. “Behavioural interaction” may occur when the source institution induces behavioural change on actors in its own issue area which are relevant for the effectiveness of the target institution when operating in the same area. And finally, “impact level interaction” may impact on a target institution’s field of governance (in this case maritime safety) through “functional interdependence” within the issue area concerned. 93. Perrow, Normal Accidents. 94. There is an established literature that have investigated accidents, emergencies and crisis as regime-altering, also beyond Perrow, se for example Bridget Hutter and Sally Lloyd-Bostocks, Regulatory Crisis: Negotiating the Consequences of Risk, Disasters and Crisis. (Cambridge: Cambridge University Press, 2017). 95. Simon Hix, “The European Union as a Polity,” in Handbook of European Union Politics, Knut Erik Jørgensen, Mark A. Pollack and Ben Rosamond ed., (London: SAGE Publications Ltd., 2006): 141–158. 96. Ben Rosamond, “Theorizing on European Union after Integration Theory,” in European Union Politics, Michelle Cini and Nieves Pérez-­ Solórazano Borragán eds, 6th edition. (Oxford: Oxford University Press, 2019): 83–101. 97. Rosamond: 87–89. 98. From the outset the treaties define the roles of these various elements, as well as the way in which they are supposed to interact. Major changes will therefore require treaty changes. ‘Small’ incremental changes will, however, also take place as political processes evolve and every-day pragmatic solutions and adjustments are being found.

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99. Giandomenico Majone, Regulating Europe (London: Routledge, 1996). 100. Majone, Regulating Europe: 67–69. 101. Anu Bradford, The Brussels Effect. How the European Union Rules the World. (New York, Oxford University Press, 2020). 102. Bradford, The Brussels Effect: 26. 103. Bradford argues in her book that the Brussels effect is a generic theory, where the five mechanisms identified as explaining global regulatory dominance might theoretically also appear in other geographic regions and jurisdictions. However, she also recognises that—at least for the time being—only the EU fits the description. Bradford, The Brussels Effect: 5.

CHAPTER 2

Amoco Cadiz and the Early Days of EC Maritime Regulation

Massive Tanker Oil Pollution, Once Again In March 1978, one of history’s biggest oil-spill disasters unfolded off the coast of Brittany. Amoco Cadiz, a very large crude oil carrier (VLCC or supertanker), ceased responding to the helm, drifted ashore, broke in two and spilled its entire cargo of 220,000 tonnes of crude oil to the sea and the shore. An environmental disaster unfolded on a scale which would have been unimaginable only a few years earlier—before the era of the supertanker (Figs. 2.1 and 2.2).1 Amoco Cadiz was wrecked off the Breton coast, and France more than most pushed very hard for action at both international and European levels.2 Only weeks after the accident, French president Valéry Giscard d’Estaing took the opportunity to raise the issue of maritime safety and marine pollution at the highest possible level in the EC.3 Based on this initiative at the Council’s summit meeting on 7–8 April 1978, a set of rather significant Council conclusions concerning marine pollution and the safety of tanker shipping was adopted.4 Quite remarkably, the heads of states and governments concluded that “the Community should make the prevention and combating of marine pollution, particularly from hydrocarbons, a major objective [for joint EC action]”. The heads of state invited their respective ministers (for both transport and the environment) to take appropriate measures and adopt common attitudes in the © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0_2

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It is difficult to find reliable tanker oil spill stascs from before 1970 from when ITOPF started its recording. However, it is illustrave that a quarter of all spills over 7 tonnes recorded in the last 53 years have been large (>700 tonnes). More than half (52%) of these large spills occurred in the 1970s Source: Oil Tanker Spill Stascs 2022, Courtesy ITOPF

Fig. 2.1  Medium (7–700 tonnes) and large (>700 tonnes) tanker spills as a percentage of those recorded per decade, 1970–2022

competent international bodies to ensure swift implementation of existing international rules. The Council emphasised that this applied particularly to those rules which stipulated minimum standards for ship operation. Furthermore, accident prevention should be pursued through coordinated action by Member States on compulsory shipping lanes and more effective control over vessels which did not meet the [international] standards. Finally, the summit resolution invited transport ministers and the

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Existing fleet*

Tankers on order**

0

20000

40000

60000

80000 100000 120000 140000 160000 180000

*Esmated on the bases of of tankers of 100 grt and above converted into dwt ** Tankers of 10000 dwt and above In the late 1960s and early 1970s technological advances in notable material and welding technology as well as in risk assessing models, made it possible to build significantly larger cargo ships than before. This in turn made it possible to transport much larger quanes of crude oil from for example the Arabian Gulf to Europe and the USA on routes around the southern cape of Africa thereby also avoiding the Suez Canal Source: Adapted from UNCTAD Review of Marime Transport 1975, Table 12, p 14

Fig. 2.2  Average size in DWT of tankers in existing fleet versus on order in 1973

Commission to search for and implement more effective measures to combat ocean pollution as it occurred.5 Following up these summit conclusions, the Transport Council adopted a resolution a few months later with an attached action programme. The transport ministers called for the allocation of necessary funds for the Commission to prepare detailed proposals as requested by the heads of states and governments. To underline the urgency, the transport ministers also committed to reaching a conclusion on the forthcoming Commission proposals no later than 9 months after they had been presented to them. However, the action programme itself was relatively timid and did not request the Commission to present any concrete proposals but only to undertake in total seven studies. The common denominator of these studies was that they all called for gap analyses concerning various aspects of information gathering and processing. Ministers wanted a better overview, for example, of available oil pollution knowledge and expertise in the

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various Member States. They also requested an inventory of specialised equipment and personnel which could be called on to assist in an emergency in another Member State.6 At its meeting in December that same year, the Council did adopt a directive on minimum requirements for tankers entering European ports, a draft of which had been presented to it earlier in the year.7 In general, however, it must be said that—compared with the rather committed and ambitious response in the summit conclusions adopted in April—the transport ministers’ follow-up narrowed everything down to being mainly a question of the joint capabilities of Member States to combat oil pollution after it had occurred.

European Parliament Emerge as a Maritime Policymaker The Parliament only had consultative status in the EC’s policy- and law-­ making processes in 1978, and its opinions could consequently be ignored. Members of the European Parliament (MEPs) had nevertheless begun to voice their concerns quite forcefully over the way maritime transport was regulated at the international level. On 12 June 1978, the Parliament held a meeting where possible positions resulting from the Amoco Cadiz debacle were debated. This led to noteworthy initiatives. First, the Parliament ‘approved in principle’ the draft directive which the Commission had presented to Member States the month before, requiring them to accelerate their respective accessions to international maritime safety and pollution conventions.8 More importantly for this account, the Parliament also announced—in the same resolution—its intention to conduct a public hearing a few weeks later in Paris. It would focus “on the most effective means of preventing accidents to shipping in Community waters, and avoidance of consequential marine and coastal pollution”. To organise such a hearing was a rather novel and bold initiative, and the Parliament reserved its right to revert with more specific proposals subject to the input expected from the session.9 This was an interesting moment, as the Parliament demonstrated its growing ambition to play the role of conveying the views of the general public on maritime matters to the EC’s decision-making processes. At the time, the Parliament had a very limited support staff available to research relevant material in preparation for such a hearing. Consequently, it had to rely on the personal knowledge of individual MEPs and on input and research from outside sources. This explains why one of the key

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background documents distributed by the Parliament for its Paris hearing was an opinion piece developed not by the Parliament itself, but by the European consumers association (BEUC).10 However, this document made several interesting observations which would be repeated many times in the Parliament as well as in Commission interventions over the decades to come. While recognising that effective European solutions should be found “within the international context”, the BEUC document pointed out, for example, that—despite the existence of numerous functional conventions at international level—a prevailing weakness was that these did “not provide for joint enforcement measures”. As a precautionary measure, the document also suggested that all Member States should extend their territorial waters to 12 nautical miles (nm).11 Another suggestion was that the EC would benefit from establishing its own maritime safety agency with powers to oversee rule implementation as well as to engage in accident investigation in cases where uncovering of supplementary knowledge on accident causes would be desirable.12 The BEUC also underlined the importance of conducting public hearings—such as the one the Parliament had planned—in the domain of international maritime regulation “because we believe that the problem of maritime safety has been surrounded with far too much administrative secrecy”.13 This notion of maritime policy-making driven by a non-transparent ‘maritime industrial complex’ struck a chord which was to resurface many times. The Paris hearing took place over 3 days from 20–23 June. It was chaired by British Labour MEP Lord Bruce of Donington. A former military man, he had prepared a very detailed questionnaire for circulation to a dozen representatives of the various maritime stakeholders as well as IMCO, the scientific committee of the North Atlantic Assembly and a couple of academics.14 In his invitation letter to recipients, the chair made it clear that the hearing was intended to be neither an inquest nor an enquiry into any particular incident, such as Amoco Cadiz. He underlined that it should essentially be concerned with the avoidance of accidents at sea and the possible consequential pollution, rather than with measures required when pollution had already occurred.15 Notably, this was the exact opposite of the approach taken by the Transport Council a few weeks later. Presented as an indicative rather than exhaustive list of topics, the questionnaire focused on ship design and equipment, training of masters and crews, incidents and their consequences, ratification of international

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conventions, and the role which the EC could play in applying them. It also contained a set of rather detailed questions on marine communication issues, including radio frequencies—which probably reflected the chair’s background in the British Army’s signalling corps. Judging from the 13-page summary of the hearing, the discussions were lively and engaged.16 The representatives of the European seafarer unions were quite active and vigorously emphasised that the lax implementation of international rules by the flags of convenience (FOCs) was a major problem which could now only be met efficiently through coordinated port state control (PSC). The unions also complained that owners, while growing vessel sizes, had reduced crewing on board. Furthermore, they claimed that the new practice of designating multifunctional positions on board had increased fatigue and stress for seafarers. These trends had also undermined the previous practice of letting crew undertake necessary vessel maintenance while underway. A spokesperson for the oil companies defended the FOCs, however, and said that the problem was rather with the shipowners. Responsibility for vessels should rest with them—regardless of flag, they argued. What shipowners and oil majors could agree on, however, was the indisputable supremacy of IMCO and that the EC should therefore direct its attention at achieving universal implementation of the conventions adopted there. Again, many of the speakers pointed to PSC as an important part of the solution. Some very detailed discussions took place on both technical remedies and legal matters. Suggestions were made, for example, that limits should be imposed on the size of new vessels. Lively debates were also held on whether tankers should be equipped with more than one propeller and perhaps even be designed with two independent propulsion systems. Where the legal aspects were concerned, the representative of the International Salvage Union deplored what he saw as a detrimental departure from long-established contractual arrangements such as the ‘no cure, no pay’ formula for salvage operations. He felt that this had weakened the industry’s ability to provide emergency response. Several speakers highlighted the lack of transparency in the industry as a major disadvantage—including for safety. According to the notes, the representative of Lloyd’s Register (LR)—the only person invited from the classification industry—neither mentioned nor responded to the topic of transparency and information-sharing. Apart from commenting on some specific marine engineering aspects, such as those related to vessel size and

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propulsion systems, and pointing out that ‘substandard’ was a relative term, the record only states somewhat laconically, that “the representative of Lloyd’s Register described at length his society’s activities, employing 1800 professional engineers, or half of the engineers employed by the four classification societies in the Community, and covering 11,000 ships”.17 The relatively low profile of the LR representative at the Paris hearing, despite some blatant criticism from others (see below), no doubt reflected the fact that the attitude of the classification industry in the late 1970s was that the role of maritime classification was to develop ship construction rules but not to get involved in debates on how these vessels were operated.18 The official record of the Parliament hearing was published in its entirety by the French maritime magazine Journal de la Marine Marchande, but apparently by nobody else. When doing so, the editor felt like adding the following disclaimer: “For information, we are publishing a detailed record of the meeting, objectively reproducing all the opinions expressed there. Some of them will seem arguable, if not extreme. They do not, of course, reflect the views of the Journal de la Marine Marchande, which has always attempted to discuss these matters fairly and dispassionately”.19 Despite such ‘arguable’ positions, the hearing concluded with fairly clear and workable recommendations—including on the need for strengthened PSC, coordinated efforts to secure full ratification of IMCO conventions, and investigating measures which could make tanker voyages safer. On this latter point improved tug assistance, safe lanes and navigational aids, designated places of refuge and paying increased attention to seafarers’ working conditions were among the recommendations made.20 Many of these found their way into the Parliament’s second post-Amoco Cadiz resolution, adopted a few months later.21 In this, the Parliament expressed its unequivocal support for the various initiatives tabled by the Commission following the wreck.22 But it also contained a list of proposals for further measures. Amongst these were a call for the Commission to examine the possibility for introducing unified EC standards for European maritime classification services, which could then in turn be applied as minimum standards for EC-based marine insurance companies when providing cover.23 Both the classification societies and the marine insurance industry had been the subject of much discussion at the Paris hearing, where some participants went so far as to described class certificates as ‘useless’ and to note that there were ‘substandard insurers’ out there too.24

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Finally, the resolution contained some strong wording which proves that the Parliament, too, felt European transport ministers—and their maritime bureaucracies—had been dragging their feet. The resolution makes it clear that the Parliament “regrets the fact that, while the European Council decided at its meeting in Copenhagen of 7 and 8 April 1978 that the Community should make the prevention and combating of marine pollution, particularly by hydrocarbons, a major objective, the [transport] Council has in some cases either rejected or weakened Commission proposals which were designed to make it possible for the Member States to adopt common attitudes and to take common measures”.25

Pushing for a Joint EC Approach to Maritime Regulation Notwithstanding the reactions to the Amoco Cadiz as described above, the Commission had already begun to build an argument in support of an EC approach to maritime matters since the early 1970s. No doubt mirroring the recent accession of Britain and Denmark, the first significant formal attempt by the Commission to encourage a debate on the scope and content of an EU policy in the maritime field came with a Commission communication presented to the Council in June 1976.26 This first 1973 enlargement of the European Community not only involved a doubling of the combined fleet under Community flag, but the UK also became a dominant interested party and actor in this emerging policy sector (Fig. 2.3). 70000000 60000000 50000000 40000000 30000000 20000000 10000000 0

1972 1972 members

1973 UK (Great Britain and Northern Ireland)

Other 1973 members

The 1973 enlargement of the European Community brought a doubling of the combined fleet under Community flag. It also meant that the UK became the dominant interested party and actor in this emerging EC policy sector Source: Lloyd's Stascal Tables 1972 and 1973

Fig. 2.3  Impact of 1973 EC enlargement on size and composition of the combined EC fleet

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Interestingly, however, this Commission’s communication had not been triggered on request from these new ‘shipping’ Member States, but by a French government initiative taken at the Council in December 1975.27 For discussion at that meeting, France had prepared a discussion paper where it argued for starting a process towards developing a Community common maritime policy. In the paper, France argued for a joint policy where flag state rules, notably on manning and taxation, would be harmonised between the various EC ship registers. France also raised concerns about ‘substandard shipping’ as a threat to European maritime interests.28 The French initiative led to a decision by the Council to request its Transport working party to discuss these matters further and to guide the Commission’s subsequent follow-up.29 It was as a result of this process that the Commission came forward with a communication entitled “On community relations with non-member countries in matters of shipping” in June 1976. In it the Commission for the first time acknowledged the wide economic significance of shipping for the EC’s economy—not only as crucial infrastructure for the EEC’s own foreign trade, but also in its own right as an export-oriented service industry.30 The Commission had, for example, found that shipping companies in Member States by then employed nearly 250,000 European seafarers, a workforce often originating in regions where other jobs could be hard to find.31 And the main focus of the communication was indeed economic. Against the backdrop of a 1970s scenario of creating a New International Economic Order (NIEO), the policy document concentrated mainly on the challenges for Europe arising from an ever-shrinking fleet under EC flags and the underlying causes of that trend.32 In particular, attention was drawn to government-imposed cargo reservation schemes, a prominent feature of trade policies in many developing countries at the time. Furthermore, subsidies to shipbuilding and shipowning companies in the many state-controlled (communist) economies of the day were identified as harmful. These kinds of state interventions were recognised as especially damaging in the maritime field, since this was a segment of the world economy where Soviet and Eastern Bloc countries had shown a greater ability to challenge western operators than in most other sectors. However, it is noteworthy that the Commission already made reference at this stage to “disregard of safety measures” and “unfair tax practices” as additional examples of how some non-European flag states were undermining the competitiveness of EC-flagged shipping fleets.33

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The Commission came up with several possible remedies, including a common approach to the negotiation of maritime agreements with countries outside Europe. Owing to the strong protectionist tendencies at the time, such bilateral agreements were considered important safeguards. However, the norm had been for each Member State to take care of itself and its own bilateral trade. Now the Commission suggested that it would be worth pooling Member State resources and replace individual national efforts to secure market access for their respective national fleets with a single joint approach where access to the entire EC would be in the pot. It argued that this would help to secure much better deals for shipowners in all Member States over time.34 The Commission also linked these more general points to the eventual ratification by Member States of the UN convention on a code of conduct for liner conferences (the UN liner code). This convention had been co-­ negotiated—and also signed but not yet ratified by most Member States— back in 1974.35 Its main feature was the introduction of a cargo-sharing arrangement for liner services in order to help developing countries build up their own national merchant marines. This meant that vessels registered in the exporting and importing countries respectively would be entitled to 40% apiece of their shared bilateral trade in liner cargos, leaving 20% for cross-traders regardless of their flag (the 40/40/20 formula).36 The problem was, however, that the 40% reserved for EC flag vessels by the liner code had been found to contradict the EC’s internal market rules. In order to claim this entitlement, the European market would therefore have to be opened to competition between all EC-flagged vessels. To accommodate this, the Commission had tabled a proposal in 1975 calling for a coordinated approach to UN liner code ratification, whereby all the Member States would ratify with a joint declaration reserving ‘their’ 40% of the trade to EEC-flagged carriers by waiving at the same time their individual 40% rights and opening these instead to internal EEC competition.37 In a direct outcome from the 1976 Commission communication, the Council adopted a decision in September 1977 which established a consultation procedure on relations between Member States and third countries in shipping matters, and on such matters when dealt with in international organisations.38 However, the Council emphasised that the new setup would be restricted to assistance in information exchange—and possibly coordination. In other words, the governments showed little appetite for a joint EC maritime policy and made it abundantly clear that

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no power to that effect would be delegated to the Commission. Member States would continue to handle international shipping matters as individual sovereign nations in the organisations already set up for this purpose.39 Nevertheless, this decision paved the way for a Council regulation in May 1979 which agreed and spelt out in detail the terms for ratification of the UN liner code by the Member States.40 Meanwhile, the 1977 Council decision was a first step towards a joint EC shipping policy and also provided the means for the Commission to revert to maritime safety and environmental issues in the future. It paved the way for the discussion of maritime ‘problems of common interest’ and, on that basis, to ‘consider jointly any other approach which might be appropriate’.41 Meanwhile, the Commission had moved to establish a closer relationship with IMCO (renamed the IMO in 1982). As a matter of fact, it took the Commission some time to respond to an invitation, which had initially come from IMCO.42 Where the UN body was concerned, this initiative formed part of a wider alignment of its relationships with other international governmental organisations, and the Commission seemed initially uninterested. After some internal consultation, however, it came to realise that signing such an agreement offered a potential upside by securing access to IMCO’s expert knowledge and legitimacy. A cooperation document between the Commission president and the IMCO secretary general had therefore been signed in May 1974, confirming a mutual commitment to exchanging information as well as allowing observers to attend each other’s meetings.43

Torrey Canyon and the Early Days of MARPOL The challenge of oil pollution from ships had already found its way onto the international agenda even before Amoco Cadiz, spurred in particular by the Torrey Canyon disaster in 1967.44 Indeed, the magnitude of the potential environmental threat from accidental oil pollution by supertankers was without earlier parallels. The public outcry and the sheer size of the subsequent uncoverable claims that followed Torrey Canyon had therefore prompted the world’s tanker owners to take action. Aiming to mitigate the effects and to ensure adequate and timely compensation for those affected by oil spills, the tanker industry acted through its protection and indemnity (P&I) clubs.45 The tanker owners’ voluntary agreement on liability for oil pollution (TOVALOP) was consequently established in

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1968. In parallel, a contract was negotiated with the oil companies which resulted in a supplementary level of compensation which would come into play in situations where the limits covered by TOVALOP were exceeded. This second-tier oil-spill compensation regime, borne by cargo owners (CRISTAL), was designed to work in tandem with TOVALOP. However, these twin voluntary agreements were intended only as interim arrangements pending adoption of the international civil liability and fund conventions (CLC) then under development by IMCO. But TOVALOP and CRISTAL established the principle of industry participation in liability compensation, and although a first version of the CLC was signed in 1971, they only entered into force 7 years later. On top of that, numerous amendments and additional protocols followed over the following 25 years, and TOVALOP and CRISTAL were therefore only discontinued and somehow integrated into the CLC regime in 1997. Furthermore, Torrey Canyon—with other contemporary accidents— also incentivised the leading members of IMCO to start negotiations on what was to become the first version of the International convention for the prevention of pollution from ships (MARPOL).46 Signed in 1973, MARPOL had not yet entered into force when Amoco Cadiz foundered. But it was amended with additional protocols as a consequence of that disaster even before entering into force in 1983. Since its birth, MARPOL has established itself as a core instrument in the international maritime regulatory regime. A main reason why signatories nevertheless took so long to put it into effect was that this convention for the first time amalgamated international regulation on maritime safety with mounting concerns over ocean pollution. As such, the convention challenged the earlier fairly clear-cut division between flag state and port/coastal state interests. MARPOL made keeping these perspectives apart more complex.47 And, as is so often the case with maritime regulation, the initiatives taken represented an “overlap between convention and custom”, as Tan has observed.48 In other words, the international oil pollution regime developed as a blend of initiatives taken by both private sector and government players. The increasing threat from accidental oil spills, and the Amoco Cadiz disaster in particular, also influenced other international processes, including the rights assigned to coast and port states in the final rounds of negotiations over the UN’s law of the sea convention (UNCLOS). That was another factor which incentivised signatories not to ratify MARPOL before the UNCLOS process had been concluded.49 And, as we have seen, Amoco Cadiz accelerated policy processes in the EC.

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The Treaty of Rome and Maritime Transport Regulation In the early 1970s, the rules governing cooperation between the then six members of the EEC were still largely similar to the initial provisions of the 1957 Treaty of Rome.50 That had been designed to trigger and facilitate ever-closer integration, and one of its key features was provision of a legal basis for developing further enabling legislation. The idea was that ever-closer cooperation would gradually be developed and enacted in various fields through legislative acts adopted by the Council as and when the need arose. One of the fields where such closer cooperation was to be developed involved a common European transport policy. As a matter of fact, advancing policy in the transport sector was even listed as a priority in the 1957 treaty.51 While quite detailed instructions were provided for developing a common land transport policy, mainly by road but to some extent by rail as well, the treaty’s article 84.2 concerning sea and air transport offered little guidance.52 As Henrik Ringbom has observed, “this vagueness of the legal foundation for a common maritime transport policy had the consequence that, despite efforts from the Commission, very little maritime legislation was introduced in the first decades of the Community’s existence”.53 In addition, the founding Member States also had limited and to some extent diverging interests in maritime transport.54 For most of them, with the possible exception of the Netherlands, shipping was solely a means for moving goods between the respective national economies and the wider world. Maritime transport was therefore not immediately conceived as a common European issue. This was also recognised by Lambert Schaus, the commissioner responsible for transport at the time, when he readily admitted in 1967 that “legally, […] it is up to the EEC Council to decide whether, and how, common policy provisions are to be adopted in this field, and the Council has not so far discussed the matter. Practically, the Member States are tied by world-scale agreements and conventions”.55 However, these ‘world-scale agreements and conventions’, initially tailored to a large extent to the interests of the traditional European maritime nations, had gradually come under pressure. The east-west divide of competing political and economic systems, decolonisation (of the British empire in particular), Asia’s growing economic importance and clout and other global developments exerted a strong influence on the established maritime world order.56

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Meanwhile, maritime affairs grew steadily in importance for the EC as more high-profile shipping and cross-trading nations joined as members.57 The fact that the UK and Denmark joined in 1973, followed by Greece in 1981, Spain and Portugal in 1986 and then Cyprus and Malta in 2004, helped to alter the EC’s maritime portfolio and interest profile bit by bit (Fig. 2.4). But the widening of EC membership also brought with it increasing divergence in maritime interests. Some Member States remained focused 160000000

140000000

120000000

100000000

80000000

60000000

40000000

20000000

0 1972 members

1972

1973

1973 members

1981 1981 members

1986 1986 members

1995 1995 members

2005 2005 members

With the enlargement in 1981 the Greek flagged fleet became a dominant proportion of the total EC/EU fleet. Furthermore, the graph shows how the combined fleets of the initial 1973 members shrunk through-out the 1980s and 90s, before growing again in the early years of the twenty-first century. This growth was mainly due to the newly installed ‘second’ or international registers such as DIS in Denmark. Finally, the graph illustrates the significance of Cyprus and Malta joining as EU members from 2005

Fig. 2.4  Impact of consecutive EC/EU enlargements 1973–2005 on size and composition of the combined fleet

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on shipping as mainly infrastructure for their own trade, others had a more explicit involvement in maritime transport as an export service (cross trading and/or ship registration) in mind. Considerations along such conflict lines were important elements in both Greece and Norway’s recurring debates on whether to seek EC membership, as documented by Ikonomou and Tsakas. Regardless of national differences—Norway a democracy and Greece at the time a military dictatorship—the private-sector shipping lobbies were intertwined with government and national policy interests in both countries. Comparing the attitudes of the Greek and Norwegian shipping clusters to the membership issue throughout the 1960s and 1970s, Ikonomou and Tsakas found that, in both cross-trading nations, a prospective EC shipping policy was perceived not only as probable but also a potential threat to the prevailing world order based on freedom of the seas which both countries felt was crucial for their income.58 And, interestingly, despite the deeply felt distrust in an EC shipping policy, the maritime lobbies in both countries tended to favour membership—not for gaining access to the common market, but rather because they believed that, as members, Greece and Norway would be able to prevent maritime policy issues from ever becoming part of the EC agenda. This outlook also led both countries to consult and seek a coordinated approach with Denmark and the UK in particular, both before and after these liberal shipping allies and perceived brothers in arms became members in 1973.59 All in all, limited political priority, combined with a lack of converging interests and the fact that such legislation would in any event require Council unanimity, effectively discouraged any major progress in the maritime field during the EC’s first few decades.

The Early Seeds of Port State Control (PSC) As observed by Rosemary Rayfuse, the notion of empowering and encouraging—indeed, obliging—port states to act in support of specific treaty obligations emerged in the 1960s and 1970s.60 The drivers were growing awareness of both international labour and environmental concerns. Gradually, the need to deal with substandard shipping and other challenges posed by flags of convenience became more pressing. Rayfuse points out that the trend was visible in both fisheries and merchant shipping.61 Where the latter was concerned, the US Coast Guard (USCG) had pioneered these rights systematically in US ports since the early 1970s.

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And, in 1978, a handful of European governments signed the Hague memorandum on port state control (PSC) with the main aim of applying uniform criteria when checking that working conditions on vessels were in line with the rules agreed under UN’s International Labour Organisation (ILO) convention 147.62 Seen from the Commission’s point of view, the political upheavals created by Amoco Cadiz both identified a need and opened an opportunity for progressing its maritime safety agenda. In June 1980, then, another maritime communication was presented to the Council. A core element in this latest initiative was a suggestion to expand the principles adopted in the directive from 1978 on minimum criteria for tankers calling at EC ports and develop these into a full-fledged mandatory European PSC system.63 It will be recalled that a coordinated PSC regime had also been recommended as a priority by participants in the Parliament’s Paris hearing.64 The existing directive, although not a full-scale PSC scheme in its own right, contained provisions pointing in that direction as far as tankers were concerned. It stated, for example, that all tankers entering EC ports were obliged to report “whether or not there are any deficiencies or incidents which may decrease the normal safe manoeuvrability of the vessel, affect the safety and easy flow of traffic or constitute a hazard to the marine environment and adjacent areas” and furthermore to “complete truly and accurately a tanker check list […] and make it available to the pilot for his information and to the competent authority, if it so requests”.65 The Commission’s PSC proposal was discussed at several Council meetings in 1980 and 1981. While expressing their appreciation of the role of the Commission as a constructive partner, as well as strong support for a Europe-wide PSC system, Member States opted in the end to continue an individual and voluntary approach outside the EC framework. The arguments used were largely along the lines of ‘subsidiarity’, meaning that, although Member States acknowledged the imperative need to protect the coast against pollution, they felt that it should be left to each port, region and Member State to decide how to go about it.66 To look ahead, it is worth noting that the explanatory memorandum which accompanied the Commission’s draft PSC proposal contained several ideas and elements which would resurface in more elaborate form years later. It states, for example, that “In the Commission’s view, one of the areas where the EC can make a particularly valuable contribution is that of the enforcement of standards. […]. IMCO drafts and adopts Conventions setting out the standards to be met by shipping. But IMCO

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is not itself an enforcement agency. The Conventions which it adopts have to be brought into force; and they then have to be enforced”.67 Also, and as reflected in the draft directive’s article 8, the concept of a common European database and information system to facilitate efficient operation of such a PSC system by Member States was launched.68 Although not taken on board at this juncture, the idea matured and resurfaced 20 years later in the context of the Quality Shipping campaign. Another noteworthy element in the Commission’s proposal, which is of particular interest to this study, was that a reference was made for the first time to the valuable expertise at the disposal of and managed by the classification societies. The idea was put forward that EC-based classification societies could be enrolled as allies for Member States in their endeavours to strengthen control of shipping quality through port state inspections. To this effect, article 10.2 of the draft directive stated that when implementing the directive Member States should explore which arrangements could be made with classification societies established in the Community so that the staff of these societies would undertake port state enforcement work as agents of the Member State, or “act on behalf of the member State as flag state in order to release Government inspectors for port state enforcement work”.69 This particular idea was never to reappear in later Commission documents. Rather—and somewhat ironically, one might say—the classification societies were themselves to be controlled by PSC a decade or two down the road. In any event, this reference to classification in 1980 was a first sign that the Commission was realising the potential importance of this private governance element in maritime safety.

The EC Internal Market and [De]-regulation of European Shipping At the entry of the 1980s, however, Europe’s attention turned towards the internal market and the trade and economic sides of shipping as the Council adopted its first comprehensive set of EC maritime legislation in December 1986.70 Initially tabled by the Commission in 1981, the four regulations adopted as part of this package all addressed different market imperfections in the sector.71 Two of them made the treaty’s anti-cartel and anti-dumping rules applicable to international shipping. The third concerned deregulation of maritime cabotage between EC Member

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States, while the fourth introduced anti-dumping measures for potential use against third countries. So, these new and bolder initiatives did not address maritime safety or other IMO matters, but were rather linked politically to the much wider project of completing the European single market. This forceful drive towards market liberalisation was spearheaded by Lord Cockfield, the UK’s European commissioner. A former Thatcher government minister, he oversaw—in close collaboration with Commission president Jacques Delors—the production of a massive Commission White Paper listing more than 300 barriers which had to be abolished or overcome in order to revitalise the single European market as initially envisaged by the Treaty of Rome. The Cockfield report, as it was called, received warm support from the Member States and led the Council to set a deadline of 31 December 1992 for completion of the single market.72 This new drive also paved the way to the adoption of the Single European Act (SEA).73 The EC was being rigged to move forward with deregulation in several hitherto untouched sectors, including the maritime and aviation industries. In addition to the overarching political drive towards market deregulation and the principles of Council majority voting which followed from the SEA, a third triggering mechanism—or at least facilitator—for the 1986 maritime breakthrough came with a European Court of Justice (ECJ) ruling in May 1985.74 Pursuant to article 175 of the EEC treaty, a case had been brought by the Parliament back in January 1982. For some time, it had been vainly trying to put pressure on the Member States to start developing a more comprehensive EC transport policy. Having repeatedly failed to move the Council on the issue, the Parliament turned in the end to the ECJ with a complaint that “the measures adopted so far by the Council in regard to transport in no way meet the requirements of the Treaty for a common policy”.75 In its ruling 3 years later, the ECJ supported the Parliament’s complaint and established that the Council (in other words, the Member States) had failed to fulfil the treaty obligations in the transport field. Together with the outcome of an earlier and to some extent related case on French merchant seamen from 1974, the ECJ’s 1985 ruling cleared the way for the Commission to introduce more ambitious EC policies in the maritime transport sector.76 However, the Council procedural rule requiring decisions to be unanimous remained in place until the Maastricht treaty entered into force on 1 January 1993.77

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The Political Impact of the 1980s’ Global Crises in Shipping The 1970s and 1980s were truly dramatic years for international shipping—and in maritime policymaking. There was change everywhere. The prolonged and deep recession in all shipping markets which began with the oil crisis in 1973 meant that volumes transported by ships worldwide contracted dramatically (Fig. 2.5). By 1983, more than 40% of the global tanker fleet was laid up (Fig. 2.6). In parallel, the national flagged fleets of the OECD countries fell significantly compared to the world fleet as well as that of the FOCs. Global shipbuilding output plunged from nearly 70 million GRT in 1970, to less than 27 million GRT in 1979 when it slightly started to grow again (Table 2.1). Many of the traditional—often family-owned—shipping companies restructured, merged, incorporated or went bust.78 A vast number of

3000 2500 2000 1500 1000 500

1955 1957 1959 1961 1963 1965 1967 1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013

0

Source: UNCTAD Review of Marime Transport, 1970-2015. Numbers in million metric tons

Fig. 2.5  Development in global tanker cargo transports 1955–2013, in million metric tons

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450 400 350 300 250 200 150 100 0

1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2002 2003 2004 2005 2006 2007 2008 2009

50

Laid-up tanker fleet

Active tanker fleet

Source: UNCTAD Review of Maritim Transport (RMT) 1990, Table 17 p 27, UNCTAD RMT 1995 Table 19, p 36, UNCTAD RMT 2000 Table 27, p 43, UNCTAD RMT 2005 Table 27, p 48 and UNCTAD RMT 2010 Table 3.5, p 67 Fig. 2.6  Laid-up tankers in millions of DWT measured against total world tanker fleet, 1981–2009 Table 2.1  Global shipbuilding output, 1970–1980 in thousands of GRT Regiona

1970

1978

1979

1980

OECD Developing countriesb Socialist countriesc Other World total

67,063 884 1592 175 69,714

20,810 4657 2146 511 28,124

18,879 4681 2604 527 26,655

24,959 5026 2110 869 32,964

Source: UNCTAD Review of Maritime Transport 1980, Table 20, p 22 Regions as listed by UNCTAD in 1980

a

Including South Korea

b

Mostly China and Soviet Union incl. COMECON (Soviet + ‘satellite states’)

c

shipping companies were taken over by the banks. Long-standing business models which had traditionally encompassed every aspect of shipowning and operation were replaced by a strong trend towards outsourcing. Ship management companies with a global focus and reach grew as they were

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entrusted with the technical management of consolidated fleets previously operated individually by numerous smaller owners. The same happened to crewing functions, as recruitment agencies took on the task of supplying crews from all over the world at competitive rates and on contracts tailored to the conditions typically prevailing in open registers.79 These shifts undoubtedly brought rationalisation, cost savings and more competitive shipping prices for consumers. Combined with deployment of innovations such as containerisation of the liner trades, economies of scale in tanker and bulker shipping and automation of on-board operations, a global transport revolution gathered pace in the late 1980s. More than ever, the shipping industry became the spearhead for globalisation. But these changes also led to fragmentation of the different aspects of shipowning. Previously characterised by tight national links between owner, operator, classification society, flag and seafarer, this was now increasingly disentangled and disrupted. In short, a process of ‘de-­ nationalisation’ of the shipping industry occurred, and these sea changes had dire consequences at commercial, political and regulatory levels.

Ship Registration and the Issue of ‘Genuine Link’ All over Europe, governments worried about the fact that the ‘genuine links’ between the vessel’s flag and the national affiliation of its owners, operators and managers were becoming weaker and weaker. This circumvention and watering-down of national control was neither new nor unheard-of in the history of shipping. But it took on a whole new dimension during the 1980s.80 Traditional shipping nations such as the UK, Norway and to some extent Greece struggled with the political and economic consequences, as did many developing nations.81 In 1982, therefore, the UN General Assembly adopted a resolution recommending the phasing-out of open registers and urging UNCTAD to investigate the matter further.82 This triggered the negotiations which led to adoption of the UN convention on ship registration in 1986. Even though it is vaguely formulated, the convention required signatories to ensure that one out of two alternative genuine links were in place before a ship could be accepted in their national shipping registers.83 However, the convention became significantly watered down and ultimately failed to secure ratification and entry into force.84 Meanwhile, most European governments shifted tactics towards the open registries from a ‘beat them’ to a ‘join them’ approach. This mainly

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took the form of establishing national second or ‘international’ registers to lure shipowners back to their national flag.85 Adding to all this turmoil, it became increasingly clear by the end of the 1980s that safety and regulatory control had suffered. The unforgiving market conditions also took their toll on safety, as owners reduced maintenance costs to survive. Technical operation and crew management were increasingly outsourced to dedicated ship management and crewing companies, creating a new kind of distance between owners and operators. In the meantime, classification societies increasingly turned a blind eye to deficiencies in order to keep clients and market share intact. So-called ‘class hopping’, with shipowners switching from one society to another in order to avoid burdensome surveys, upgrading and repairs, became a systemic challenge as part of this downward spiral.86 Dramatic vessel accidents continued to occur around the world with high loss of life (Fig. 2.7). According to Lloyds causality statistics sited by the European Commission, the period from 1975 to 1991 saw an average loss of 380 ships per  annum.87 Dry bulk carriers, many registered under European 4500 4000 3500 3000 2500 2000 1500 1000 500 0

1985

1986

1987

1988

1989

1990

1991

The dramatic surge in number of lives lost at sea in 1987 is due to one single ferry disaster that took place in the Philippines. The exact number of fatalities remains unknown, but up to 4000 may have been on board the heavily overloaded Doña Paz when it collided with a tanker and capsized Source: European Commission COM(93) 66 final, p 3 Fig. 2.7  Number of lives lost at sea worldwide, 1985–1991

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flags, were heavily affected—with the dramatic disappearance of the 160,000 DWT Derbyshire in September 1980 as perhaps the most infamous example. This UK-flagged vessel, with its crew of 42, vanished without trace in a typhoon off Japan. However, few of these accidents attracted much attention, not even in the industry itself. Not all of them took place in European waters or otherwise involved direct European interests, though Europe had its fair share (Fig. 2.8). Media reports increasingly focused on various weaknesses in the international regulatory regime. High-profile tragedies such as those involving the Herald of Free Enterprise (1987), Exxon Valdez (1989), Scandinavian Star (1990) and the Estonia (1994) made headlines and each in their way spurred political debates on aspects of the regulatory regime. And, while the loss of Derbyshire was accepted as an enigma by the British authorities, seafarer unions supported by the media campaigned ever more loudly for greater thoroughness in investigations.88 Despite the increasing attention being paid to accidents, however, and extensive debates at the IMO, notably on the safety of passenger ro-ro carriers, the EC did not make much progress towards a common maritime safety policy. Meanwhile, the grounding of Exxon Valdez off the coast of Alaska in 1989 created much political turmoil in the USA, where draconic unilateral legislation was passed by Congress the following year in the form of the 1990 Oil Pollution Act (OPA 90).89 On several fronts, the OPA 90 went German North Sea Baltic Sea East Medeterranian West Medeterranian N-E Atlantic coast 0

10

20

30

40

50

60

Source: European Commission document COM(93) 66 final, Figure 1bis, p 3

Fig. 2.8  Percentage distribution of casualties by geographic region in European waters, 1987–1991

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beyond internationally agreed rules on tanker safety, compensation and marine protection. And several of the ideas embedded in the new US Act eventually came to influence EU legislation.90 In 1990, however, the EU Member States preferred to support their shipowners in protesting against US unilateralism.91

Summing Up and Concluding Remarks, 1970–1989 The political turmoil which followed Amoco Cadiz in the 1970s brought maritime safety firmly on to the EC’s agenda. Or, more precisely, the threat of oil spill disasters such as the one resulting from Amoco Cadiz brought maritime safety onto the EC agenda as well. Until then, these issues had been left almost entirely to the international shipping community to sort out within their own remits at IMCO.  However, this was when the international regime changed from focusing on the vessel purely in safety terms to addressing it also as a polluter. By then, the Commission had made a few timid attempts to bring maritime issues to decision in the Council, but it was with the French-led campaign to force new regulation on the international shipping community post-Amoco Cadiz that these issues also took hold in the Council agenda. Nevertheless, while the heads of state and governments reacted quite firmly at the Copenhagen 1978 summit, their uproar weakened significantly further down the line. Whilst Member States at the level of prime ministers and presidents saw the bigger picture as imperfect and ripe for a more proactive approach, the Transport Council took a more restrained and ‘pro-regime’ attitude whereby EC action was to be confined mostly to shore-based monitoring of and response to oil pollution. In other words, while the issues were perceived more open-mindedly from outside the traditional-­ institutionalised maritime context at summit level, the same issues became subject to issue networks and enshrined maritime epistemic communities once they reached the transport ministers and their supporting bureaucracies.92 This might be a reflection of the observation made in the discussion paper circulated by the Parliament ahead of its public hearing in Paris the same year, which found that “the problem of maritime safety has been surrounded with far too much administrative secrecy”. And it was precisely the Parliament which seized the moment and effectively drew up the wider agenda on the many issues which were to dominate EU maritime policy debates in the decades to come. The Paris public

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hearing conveyed a significant message on the Parliament’s growing ambition to play a more active part in policymaking. As an isolated event, the impact of the hearing and its ensuing resolution might be debatable. Seen in a longer historical institutionalist—or even social constructivist—perspective, however, it may serve as an interesting example of the Parliament carving out a role.93 The proactiveness of the Parliament was not lost on the Commission, which picked up on several of the same ideas in connection with its proposal for a joint PSC directive a couple of years later. Another and important breakthrough came with the Parliament’s successful court case against the Council, which the ECJ ruled on in 1985. The ECJ ruling then in turn coincided with a renewed drive towards an integrated European internal market. But it was also made in the midst of a decade which could be described as a watershed for European shipping and national shipping policy formulation. In the early 1990s, EC shipowners were still estimated to control a fleet totalling 680 million GRT. By then, however, only 90 million GRT or 13% remained under European flags.94 And the consequences were manifold. Employment of western seafarers plunged, and concerns over the economic and strategic consequences grew throughout the industrialised world.95 One could say that Member States interests—understood as ‘the interests of sovereign flag states’—had been challenged but so far prevailed. Seeds had nevertheless been sown, notably for a certain coordination of maritime safety positions at EC level—something which became particularly visible in the development of a European approach towards a joint PSC regime. That debate eventually resulted in the signing of the Paris memorandum of understanding on PSC (Paris MOU) in 1982, although Member States once again resisted formal EC involvement and instead opted to keep shipping matters and maritime safety within the realm of national sovereignty and control. With hindsight, however, both the policy developments spurred by EC coordination over the UN liner code and the processes triggered by Amoco Cadiz represented significant steps towards creating a common approach to maritime regulation in due course. At the global level, the shipping industry and its regulatory regime suffered numerous shocks from the 1970s and onwards. On the commercial side, the 1973 oil crisis had devastating effects on most shipping markets, with a dramatic and long-lasting contraction in the majority of commercial segments. Politically, cargo preference was on the rise in maritime trades within national, bilateral and multilateral arenas.96

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The continued growth of fleets in open registers during the 1970s was another trend which owed much to commercial pressures from a radically changing world economy. In parallel, a combination of geopolitical shifts, increased global oil consumption and technological advances in shipbuilding brought the VLCCs into the market. Owing to heavy price competition in the tanker market, these vessels were also typically attracted to open registers.97 One could claim, therefore, that concerns over pollution and maritime safety on the one hand and unfair competition from open registry states on the other converged in the supertanker. As the 1980s drew to a close, therefore, world shipping markets remained deeply depressed and had been so since the oil crisis of 1973. Shipowners, as well as every other stakeholder in the maritime industries— including the European flag states—were fighting for survival in a sector characterised by cut-throat competition. All this influenced the deliberations on what were ‘European interests’, and how far—and in the event in what form—these ought to be defended at EC level. At the height of the systemic shifts described in this chapter, Alan W. Cafruny published his book ‘Ruling the waves’.98 In this, he makes a convincing argument about the way the world of shipping might be understood using analytical tools from political economy. He finds that, ever since 1945, the traditional European shipping nations had fought a two-front war in order to retain control of their long-standing maritime hegemony. On the one front, the USA led the assault by keeping a steady eye on its interest in cheap and efficient transport of raw materials, with its active promotion of the open registry system as the most prominent weapon. On the other, Europe battled against the consequences of decolonisation, emerging economies and the ideas of a New International Economic Order (NIEO). It is against this sort of background that the European maritime policy agenda of the 1980s took shape. On the one hand, the international liberalisation drive had started to affect both global and European priorities.99 On the other, the maritime safety and environmental challenges which followed the disentangling of the sector’s previous structure of ‘genuine links’ appeared increasingly pressing. Add to this the complexities of European integration processes, boosted by challenges from both globalisation and post-Soviet geopolitical shifts, and the stage had been set for the EU shipping policy processes of the 1990s.

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Notes 1. A VLCC—or supertanker—is commonly defined as a crude oil carrier of more than 200 000 deadweight tonnes. Such large vessels started to appear in the market during the second half of the 1960s. Given their size and the amount of cargo they carried, an accident involving one of these vessels represented an environmental challenge on a dramatically increased scale. 2. Alan Khee-Jin Tan, Vessel-Source Marine Pollution: The Law and Politics of International Regulation, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press, 2006): 184–191. 3. As a matter of fact, France had already raised the issue of developing an EC common maritime policy in a note prepared for discussion at the 374th Council meeting dealing with transport matters in December 1975, ref. later in this chapter. 4. Copenhagen European Council conclusions (Council of Heads of States and Governments), Copenhagen, 7–8 April 1978, annex G. 5. Copenhagen European Council conclusions, Copenhagen, 7 and 8 April 1978, annex G. 6. Council resolution of 26 June 1978, establishing an action programme for the EC on the control and reduction of pollution by hydrocarbons at sea, OJ No C 162 of 8 July 1978. 7. Council directive 79/116/EC concerning minimum requirements for certain types of tankers entering Community ports, adopted on 21 December 1978. 8. Proposal for a Council directive concerning ratification of the convention on safety in shipping, OJ C 135/5 of 9 June 1978. 9. Resolution embodying the opinion of the European Parliament on the proposal from the Commission of the European Communities to the Council for a Directive concerning the ratification of Conventions on Safety at Sea, Para 2, OJ C 163/17, 10.7.78. 10. Bureau Européen des Unions de Consommateurs. 11. Later (1982), twelve nm became the accepted standard in the UNCLOS. 12. Where ship accidents are concerned, international law points to the flag state as primarily responsible for conducting an accident investigation. However, far from all flag states have taken this seriously, which partly explains the desire for other institutions to step in and fill this deplorable void. 13. This document was circulated by the European Parliament as a notice to members dated 6 June 1978. Document PE 53.925, held in the European Parliament’s historical archives, Luxembourg

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14. Present at the hearing were the European Commission, the Conference of Peripheral Maritime Regions of the Community, IMCO, the North Atlantic Assembly scientific committee, the Oil Companies’ Maritime Forum (OCIMF), the Liaison Committee of Community Shipowners (CAACE, later renamed the ECSA), the International Salvage Union, the Committee of Transport Workers Unions in the EEC, the EEC Shipbuilding Linking Committee, the International Federation of Ship Masters Associations, Lloyd’s Register of Shipping, Lloyd’s Insurance and a French academic expert on the biological impact of oil pollution at sea. 15. European Parliament committee on regional policy, regional planning and transport, notice to members of 26 May 1978, document PE 53.778, annex III, held in the European Parliament’s historical archives, Luxembourg. 16. European Parliament committee on regional policy, regional planning and transport, notice to members dated 13 July 1978, document PE 54.393, held in the European Parliament’s historical archives, Luxembourg. 17. European Parliament committee on regional policy, regional planning and transport, notice to members dated 13 July 1978, document PE 54.393, page 7, held in the European Parliament’s historical archives, Luxembourg. 18. These questions, which relate to a number of issues concerning the division of tasks between government (statutory) rules and the private-sector rules of the classification societies, were coming to the fore in the late 1970s. See for example, Paulsen: 124. 19. Journal de la Marine Marchande, 29 June 1978, no 3504: 1590–1594. 20. European Parliament committee on regional policy, regional planning and transport, notice to members dated 13 July 1978, document PE 54.393, p 14, held in the European Parliament’s historical archives, Luxembourg. 21. European Parliament resolution on the best means of preventing accidents to shipping and consequential marine and coastal pollution, OJ C 67/22, 12-3-79. 22. Commission proposals for Directive 79/115 on mandatory pilotage, Directive 79/116 on certain minimum criteria for tankers, and the Commission proposal for a memorandum of understanding on a European PSC system. While the two first were adopted by the Council in December, Member States initially chose, as we will see, to establish their cooperation on PSC outside the Community’s remits. 23. European Parliament resolution of 14 February 79, paragraph 6 e. 24. European Parliament committee on regional policy, regional planning and transport, notice to members dated 13 July 1978, page 10, document PE 54.393, held in the European Parliament’s historical archives, Luxembourg. 25. European Parliament resolution of 14 February 79, paragraph 3.

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26. A Commission Communication is a document which usually sets out a proposed action plan. These documents, which may or may not include draft legislation, are directed from the executive (the Commission) to the legislative branches of the Community—in other words, first to the Council and, after treaty changes, also to the Parliament. 27. Note, Le Conseil, document T/1/76 (TRANS), dated 7 January 1976 held at the European Commission historical archives, Archives Historiques de la Commission, Brussels. 28. Memorandum du Gouvernement français sur le développement d’une action communautaire dans le domaine des transports maritimes, Council Doc R/2980/75 (Trans 127) of 4 December 1975, held in the Council historical archives, Brussels. 29. The Council Transport working party consists of Member States’ domain experts who are normally based at the respective Member States permanent representations in Brussels. 30. Communication from the Commission to the Council on the community’s relations with non-member countries in shipping matters, COM (76) 341 final, dated 30 June 1976. 31. Communication from the Commission to the Council on the community’s relations with non-member countries in shipping matters, page 2 (mid1970s figure). 32. Jonathan Law, New International Economic Order (Online version: Oxford University Press, 2018). 33. Communication from the Commission to the Council on the community’s relations with non-member countries in shipping matters, 6. 34. For an interesting discussion of the changing trends that challenged maritime policy formulation in Europe in this period, see for example Tenold, The declining Role of Western Europe, 24–26. 35. The United Nations Convention on a Code of Conduct for Liner Conferences. 36. In shipping terminology liner cargos are cargos that normally travels onboard scheduled shipping services as opposed to bulk cargos (wet and dry) which normally moves on ships chartered ad hoc in the market. Ref the equivalents of a scheduled bus service versus hiring a taxi. Today Liner cargos typically go in containers onboard specialised container vessels operating on scheduled timetables on regular lines. 37. Proposal for a decision of the Council concerning the opening of negotiations in respect of the United Nations Convention on a Code of Conduct for Liner Conferences, COM(75)302 final. 38. Council decision 77/587/EEC of 13 September 1977, Official Journal L 239 of 17 September 1977.

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39. Such access to markets and fair competition matters were mainly dealt with at the time by the OECD’s marine transport committee, the consultative shipping group (CSG), and, from the early 1980s, in general agreement on trade in services (GATS) processes. 40. Council regulation (EEC) No 954/79 of 15 May 1979 concerning the ratification by Member States of, or their accession to, the United Nations Code of Conduct for Liner Conferences. 41. See Council decision 77/587/EEC, article 2. 42. Dossier SEC (74)2097, vol 1974/0072, held in the European Commission historical archives, Archives Historiques de la Commission, Brussels. 43. Dossier SEC (74)2097, vol 1974/0072, held in the European Commission historical archives, Archives Historiques de la Commission, Brussels. 44. The BP-operated Torrey Canyon went aground off the UK’s south-west coast in 1967, with the loss of its entire cargo of 119,000 tonnes of crude oil. 45. One of the conditions for a ship to be allowed transporting cargo on the high seas is that it carries a certificate of third-party liability insurance issued by a P&I mutual insurance club. 46. To some extent, one could say that the 1954 OilPol Convention was a frontrunner for MARPOL, although it was much more limited in scope. See for example Tan, Vessel-Source Pollution. 47. From the start in 1958, the IMO restricted itself to developing rules on maritime safety alone. As a result, it was only with the adoption of MARPOL in 1973 that the IMO’s maritime safety committee also gave birth to the marine environment protection committee (MEPC). 48. Tan, Vessel-Source Marine Pollution. 49. Tan. 50. Several institutional developments took place in the late 1960s and early 1970s. The “Merger Treaty” in 1965/67 and the Hague summit in 1969 preceded the so-called Werner plan in 1970. Since then, several treaty revisions—and expansions—have taken place and the relevant transport articles are now to be found in the latest consolidated version of the combined treaties. 51. Treaty of Rome. Article 3, as further explored in Chapter IV, paragraphs 74–84. 52. Article 84.2 simply states that “The Council may, acting unanimously, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport”. For the relevant treaty articles as amended and consolidated into its current version, see articles 3 and 71 of the consolidated treaty (2002) 53. Ringbom, The EU Maritime Safety Policy and International Law.

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54. Until 1973, EC members comprised France, Germany, Belgium, the Netherlands, Luxemburg and Italy. Greece was an associate member between 1961 and 1967. Following the military coup, the Greek association was suspended until democratic government was reinstated in 1974 and negotiations on full membership began. 55. Schaus, “Principles and Practical Details of Future Application of Treaty of Rome to Shipping Sector” in Europe’s Common Market, 15 February 1967, 1, Tribute to Haakon A Ikonomou and Christos Tsakas, “Crisis, Capitalism and Common Policies: Greek and Norwegian Responses to Common Shipping Policy Efforts in the 1960s and 1970s,” European Review of History: Revue Européenne d’histoire, 2019: 1–22. 56. Tenold, The Declining Role of Western Europe, Table 2.3, p. 25 57. In shipping terms, “cross trading” and “cross trader” describe the activities of a shipping company—or nation - offering its transport services between two or more third countries without necessarily calling at ports in its own country of registration/flag. Greece and Norway have been considered the two classic cross traders of the shipping world. 58. Ikonomou and Tsakas, “Crisis, Capitalism and Common Policies.” 59. Ikonomou and Tsakas. 60. It should be recalled in this respect that such treaty obligations would initially have been addressed to governments in their capacity as flag states. 61. Rosemary Rayfuse, The Role of Port States in Maritime Regulation and Enforcement, Routledge Handbook on Maritime Regulation and Enforcement (Online edition: Routledge, 2016). 62. The Hague agreement was signed in 1978 by six Community Member States plus Norway and Sweden. 63. Council directive 79/116/EC concerning minimum requirements for certain types of tankers entering Community ports, adopted on 21 December 1978. 64. Proposal for a council directive concerning the enforcement, in respect of shipping using community ports, of international standards for shipping safety and pollution prevention, COM(80) 360 final, 26 June 1980. 65. Council directive 79/116, article 1 para I h and II. 66. For a thorough discussion on the process of developing a uniform PSC system in Europe, see Peter Langlais, Sécurité maritime et intégration européenne (Bruxelles, Bruylant, 2018): 130–152. 67. Proposal for a Council directive concerning the enforcement, in respect of shipping using Community ports, of international standards for shipping safety and pollution prevention, COM(80) 360 final, 26 June 1980, point 2, p 1. Text underlined by the Commission. 68. Proposal for a Council directive concerning the enforcement, in respect of shipping…, point 22 (article 8 of the draft directive).

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69. COM (80) 360 final, Article 10.2, p 8, draft Article 10. 70. Regulation 4055/86 on “Freedom to provide services”, regulation 4056/86 applying the Treaty’s cartel rules to shipping, regulation 4057/86 on price manipulation and regulation 4058/86 permitting retaliatory measures against unfair shipping practices by third countries. 71. Proposal for a Council regulation (EEC) laying down detailed rules for the application of articles 85 and 86 of the Treaty to maritime transport, COM(81) 423 final. 72. Completing the Internal Market, COM (85)310 final. 73. The Single European Act (SEA) amended the rules governing the operation of the European institutions and expanded the powers of the then European Community in a number of policy areas. By creating new Community competencies and reforming the institutions, the SEA opened the way to further political integration and economic and monetary union which would be enshrined in the Treaty on European Union (the Maastricht treaty). The inter-governmental negotiations which culminated in the SEA had a dual mandate—to conclude both a treaty relating to common foreign and security policy and an act amending the EEC treaty, particularly with regard to decision-making procedures in the Council as well as the powers of the Commission and the Parliament. 74. ECJ Case 13/83. 75. ECJ Case 13/83, 1573. 76. ECJ Case 167/73, in which the Court established that the treaty obligations for Member States to secure equal treatment of workers’ rights between all EC nationals was also applicable to seafarers. 77. The Maastricht treaty incorporated the SEA, which implied among other matters majority voting in the Council. Furthermore, the new treaty dramatically increased the power of the European Parliament which secured “co-decision” powers alongside the Council and the Commission. The Parliament thereby also acquired de facto veto power over all new “maritime” legislation. 78. UNCTAD Review on Maritime Transport, 1975, 1980 and 1985 79. A key attraction of the open registry model from a shipowner’s perspective was precisely that it avoided the negotiating power of national seafarer unions and allowed them to recruit their crews in the world market at competitive prices. 80. For a discussion of the “genuine link” concept in the history of shipping, see, for example, Cafruny, Ruling the Waves: 99–101. 81. See for example Tenold, Stig, Iversen, Martin Jes and Lange, Even, eds, Global Shipping in Small Nations, Nordic Experiences after 1960. (Basingstoke, Palgrave Macmillan, 2012)

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82. The 1981 UN resolution passed with a large majority, which consisted mainly of the Soviet/Comecon block and the Group of 77 developing countries. 83. The two options for documenting a “genuine link” between the vessel and the flag related to ownership (Art 7) or manning (Art 9). 84. Cafruny, Ruling the Waves: 254–255. 85. Gunnar K Sletmo and Susanne Hoste, “Shipping and the Competitive Advantage of Nations: The Role of International Ship Registers”, Maritime Policy & Management 20, no 3 (1 January 1993): 243–255. For a more detailed analysis of the rationale behind one of these, the pioneering Norwegian International Ship Register (NIS), see Stig Tenold, “Boom, Crisis and Internationalized Revitalization”, in Tenold, Iversen and Lange, eds, 32–35. 86. To address this problem, the International Association of Classification Societies (IACS) adopted its first version of the transfer of class agreement (Toca) in 1986. This pinned down certain rules of procedure for making such transfers. These Toca rules would later form the foundation for Community rules on classification societies as recognised organisation (ROs) given delegated authority by European flag state administrations. 87. Commission of the European Communities COM(93) 66 final, Brussels, 24 February 1993, p 2 88. In the early 1990s, money was finally raised for an extensive and ambitious deep-water search and the wreck was found 4000 metres down in 1994, with debris spread over more than a square kilometre. The findings of the investigation and the way these conclusions were widely publicised in the form of an animated video of the unfolding tragedy, made a huge impression on the industry as well as on the general public. See, for example, https://www.youtube.com/watch?v=9tN4xROtMjI 89. For further analysis of the regulatory effects of Exxon Valdez, see, for example Tan, Vessel-Source Marine Pollution: 139–147. 90. Iliana Christodoulou-Varotsi, Maritime Safety Law and Policies of the European Union and the United States of America: Antagonism or Synergy? (Berlin: Springer, 2008): 56–65. 91. The Consultative Shipping Group (CSG) delivered several diplomatic demarches on behalf of European governments and Japan to the USA protesting against OPA-90’s unilateral measures. 92. Peter Haas, “Epistemic Communities,” in Daniel Bodansky, Jutta Brunnée and Ellen Hey, eds, The Oxford Handbooks of International Environmental Law, Online edition, 2012. 93. Ben Rosamond, “Theorizing on European Union after Integration Theory” in European Union Politics, Michelle Cini and Nieves Pérez-­ Solórazano Borragán, eds, 6th edition. (Oxford University Press, 2019): 83–101.

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94. Lloyd’s List, 29 January 1993. 95. In addition to the effects of flagging out from national fleets, a process which was in itself largely driven by a search for reduced crewing costs, a typical bulk carrier more than doubled in cargo capacity (size) from the early 1970s to the late 1980s while the number of crew was halved. 96. See for example, an overview in Alan W Cafruny, Ruling the Waves: 158–167 and Tenold, The Declining Role of western Europe, 24–26. 97. See for example Cafruny: 100–106. 98. Cafruny. 99. Global, but spearheaded by the policies of Ronald Reagan in the USA and Margaret Thatcher in the UK/Europe.

CHAPTER 3

Braer and Breakthrough for EU Maritime Engagement and Regulation

Pushing for EU Regulation The Commission continued to push its agenda for a wider and more coordinated community maritime policy, despite the shift in the 1980s towards market deregulation described in Chap. 2. In a 1992 white paper on the future development of a common transport policy, it drew attention to the striking quality differences in world shipping which could be deduced from such indicators as loss ratios by flag and available port-state detention data.1 And this was despite the fact that most of the world’s flag states had committed themselves to the same international legal obligations. The Commission therefore drew the preliminary conclusion that lax and uneven implementation of adopted rules—rather than a lack of rules—was the sector’s main problem. A future common EU maritime safety policy— the Commission argued—should consequently be developed on the basis of three main principles. First, a recognition that shipping is truly international and therefore needs a global maritime regulatory regime. The general objective should be to retain the IMO as the pre-eminent body for setting standards at sea. Activity by the EU in this sphere should be limited to exceptional cases where standard-setting at the IMO had failed to produce a solution which was satisfactory to the EU, and where action was imperative to guarantee an adequate level of safety in European waters. Second, a recognition that existing IMO rules largely covered the correct © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0_3

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issues and addressed what was needed. However, greater attention should be given to uniform and universal application and enforcement, including by EU Member States. Finally, a better balance would have to be found between the roles and responsibilities of flag states as against port/coastal states.2 On this basis, the Commission announced a set of initiatives aimed at strengthening the enforcement of IMO conventions, devoting increased attention to port state control (PSC), and securing a more coordinated and ambitious EU involvement with the IMO. Ringbom points out that UNCLOS rules “place considerable constraints on the efforts of individual states or regions to introduce rules which diverge from those agreed at a global level” and that “the legal possibilities for the EU to impose rules on foreign ships are accordingly largely confined to those available under this convention and under general international law”.3 Even though the EU became a contracting party to the UNCLOS only in 1998, these constraints were acknowledged and taken into account by the Commission as far back as the early 1990s.4 By then, however, the time was ripe for a more proactive EU involvement in regulating maritime safety and the environment. The Commission had developed and presented an outline on how to proceed, and the Council had come under increasingly intense pressure from both internal and external parties to act more decisively. Bit by bit, the Community portfolio (acquis communautaire) of maritime legislation had also accumulated.5 And, not least, the radical treaty changes resulting from the Single European Act were just about to enter into force. These shifted the balance of power between Member States as well as between the main EU institutions.6

1993, Braer and the Political Turmoil That Followed Braer, an oil tanker then nearly 20 years old, lost engine power off the Shetlands in early January 1993 and drifted dramatically aground near Quendale on the southern shores of these islands.7 For days and weeks, images of the supertanker spilling most of its cargo on the unspoilt coastline rolled across TV screens all over Europe. Dismayed public opinion was mobilised as never before.8 The public outcry and the political reactions were immediate and strong. A veritable barrage of feelings which had built up over time was

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released by Braer.9 That France’s transport minister Charles Josselin reacted by stating, “the whole of Europe must apply more restrictive measures and more dissuasive actions” was perhaps not so surprising.10 More remarkable was Dutch transport minister Hanja Maj-Weggen saying a couple of days later that she would “press the European Commission to introduce ‘a European flag’ which would allow more stringent checks of vessels and its crew”.11 Even more remarkably, she not only stressed that European governments now needed to cooperate more closely on such matters but also went on to criticise the UK in particular for “resisting such measures in the past”.12 The responsible British minister did not publicly respond to the Dutch attack, but representatives from the opposition did. Labour MP Joan Walley more than hinted that maritime safety matters “could not be left to the IMO, which has no policing power”.13 And, as if this was not enough, shadow transport minister John Prescott announced that Labour was now “collecting information on the Braer causality as part of a submission to the European Commission”.14 Maritime safety had thereby once again become a major political issue in the UK and a heated debate took place in the House of Commons as early as 12 January. Opposition Labour MPs drove the debates and insisted on the need for better coordination of European policies in the maritime field. However, Prime Minister John Major tried to calm things down by announcing that the government would look urgently at arguments for establishing safe shipping lanes. He also announced that the government had already requested Lord Donaldson, a seasoned though controversial and now retired British judge, to lead a public inquiry with a broad mandate into all aspects of the disaster.15 Over the next few days, others joined the debate and it quickly became clear that virtually nobody denied that a ‘substandard vessel’ problem existed.16 And the problem was clearly not confined to tanker shipping. But owing to the simple number of incidents and the pollution they caused, Braer once again ensured that attention was drawn to crude oil carriers in particular.17 Royal Dutch Shell, a major tanker owner as well as charterer, urged governments to “crack down on and eradicate” from the oil trade what it claimed to be the “one-in-five tankers that are substandard”.18 At the same time, INTERTANKO chair Andreas Ugland urged governments—particularly in the EU—not to act in ‘panic’. Speaking on behalf of the world’s independent tanker owners, he had good reason to be concerned.19 His members had spent considerable time and money

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over the preceding couple of years battling various aspects of the OPA 90 fall-out from the Exxon Valdez grounding off Alaska in 1989. While lending his support to safer tanker lanes and routing, Ugland also convincingly supported the view that the EU should concentrate on measures which could help bring the many sensible IMO conventions into force, implement these and police them, rather than looking for entirely new regulations.20 This message, which also resonated well with the Commission, was to become a backbone of the shipping industry’s arguments.21 But other ideas were also put on the table. On 21 January 1993, the Parliament adopted a resolution on the Braer tanker disaster. Most prominently, it called for a ban on tankers more than 15  years old entering European waters, a suggestion which met with considerable sympathy even in some parts of the private sector.22 In the same vein, the Parliament invited Member States to agree a date for banning single-hull oil tankers entirely from all EU ports.23 Both these provisions had already been unilaterally incorporated by the Americans in OPA 90, which the Parliament resolution also refers to.24 The USA had been arguing at the IMO since 1973 for making a double hull mandatory in tankers, but without gaining the necessary support. With the adoption of OPA 90, however, the IMO was spurred to adopt a global double-hull requirement for tankers in the form of a 1992 amendment to MARPOL.25

The Council ‘Resolution on Safe Seas’: Denmark Promotes an EU-IMO Path On 25 January 1993, barely three hectic weeks after Braer’s grounding, the Danish Council presidency of the time called an emergency Council meeting in Brussels bringing together the EU’s environment and transport ministers. Two days before, Lloyd’s List ran a headline reading “EC moving towards a split on maritime safety”, reporting that France, Italy and the Netherlands were arguing for unilateral measures.26 Also Germany lent its support to this side of the argument.27 On the other side stood Denmark, the UK and Greece, who were in favour of putting increased pressure on the IMO instead.28 It is quite remarkable, therefore, that this crisis meeting produced not a split but a set of carefully crafted compromise Council conclusions. Under the heading ‘Shipping safety and pollution prevention in the Community’, these were to mark a distinct change in the Council’s approach.29

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Denmark had taken over the rotating presidency of the EU Council on 1 January 1993.30 That brought a Member State with considerable experience of navigating the EU policy machine to the helm.31 Just as importantly, however, it also put one of Europe’s most skilled and respected maritime administrations in charge at a very critical moment for both the industry and the future of its regulatory regime. This was to become significant, because a course for the EU’s engagement in maritime safety was to be charted over the following 6 months which persisted for decades. And it was to a great extent thanks to the Danish administration’s combined skills, knowledge and legitimacy both within international maritime policy processes and in the workings of the EU that common ground was found. As a result, a direction was set where the global governance role of the IMO became carefully balanced against valid—and by now very tangible—regional concerns held by many Europeans.32 With Braer’s oil still washing up on the shores of the Shetlands, the cup had overflowed. Public opinion and the media were in an uproar and, in the brief time between the Aegean Sea accident and this incident, the Parliament had become forcefully engaged.33 MEPs had also made their voices heard on maritime pollution and safety issues earlier, including expressing their dismay at the lack of implementation and the wider role of open registers.34 But it was only with the entry into force of the Single European Act on 1 January 1993 that the Parliament gained real teeth in legislative co-decision-making.35 For that reason alone, the Braer resolution of 21 January 1993 carried weight with another order of magnitude than before. Both the content and tone of this parliamentary intervention signalled higher policy ambitions—when, for example, it “calls on the Commission and the Council to develop a comprehensive policy concerning maritime safety as soon as possible and condemns the Council for not having taken action over a period of many years”.36 So, the extraordinary meeting of the combined transport and environment Council was under considerable pressure from not only the Commission and the Parliament, but also individual Member State ministers who were feeling the political heat at home.37 Keeping in line with the policy principles for safety at sea suggested in the Commission transport white paper some 6 weeks earlier, the Council session produced a long and thorough debate which resulted in an unusually detailed list of action points and objectives. With explicit reference to the many recent—and in some cases still unfolding—accidents at sea, as well as to the EU’s increasing concern for protecting the oceans, the

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Council welcomed recent IMO actions which should help improve the situation. However, and of greater significance, the Council also strongly welcomed the Commission’s announcement (in the transport White Paper which had just been published) of a forthcoming communication on a common policy for safe seas. The Council endorsed and reiterated the Commission’s recommendations that the EU should “establish strict and convergent implementation for the whole of the Community of international rules” and “promote the adoption by the IMO of adequate and up-to-date regulations and standards”. This time, too, the Council went even further than the Commission and expressly urged the EU and its Member States, among other moves, to “establish requirements for recognition of classification societies” aiming at establishing “requirements for the delegation of statutory surveys from flag states, with the view of limiting the misuse of flags of convenience” and “the development of guidelines for improved surveys of oil tankers”. Furthermore, the Council’s conclusions urged Member States and the Commission to strengthen the PSC system “within the framework of the Paris MOU”. Amongst the recommendations on this account was mandatory implementation of the MOU, developing an efficient targeting mechanism, and promoting cooperation between the Paris MOU and other regional PSC regimes.38 These were radically new tones from the Council, and the pace of change came as a bit of a surprise even to seasoned shipping industry observers in Brussels. Tim Marking, technical director of the European Community Shipowners’ Association (ECSA), for example, wrapped this all up quite neatly when he commented that “whilst the finer details of last Monday’s Brussels meeting were still awaited, there seems to have been a sea change in Member States’ views in favour of a greater role for the Commission”.39 And a sea change it was indeed. For the first time, the EU flag states—now also including Greece—recognised not only that there was a role for the Commission to play, but also that there was a case for a more coordinated approach by the EU Member States towards the IMO in terms of both rule development and compliance. Meanwhile, IMO secretary general William O’Neil entered the debate in what might appear at first sight to be an unequivocal rebuff to the escalating criticism of his organisation. In a half-page interview with Lloyd’s List under the heading “Uptight IMO battles back against critics”, O’Neil called the criticism, “inconsequential as the IMO has a role to play only in one part of the three-pronged defence against substandard shipping—rule

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making, implementation and enforcement”, more than hinting that his secretariat was confined to working with the first element, namely rule making. Further on in the interview, however, the secretary general went quite some way towards siding with the critics when he—clearly frustrated—continued, “I hear continuous claims that the IMO is slow, but it is only slow because of the way work is conducted and the way governments present it. If the membership wants to speed up the system, it is up to them to change it”.40

Offensive Commission Initiative on ‘A Common Policy on Safe Seas’ It took the Commission less than a month to respond with a communication of almost 80 pages on a common policy for safe seas, which was submitted to Council and Parliament on 24 February 1993.41 This remarkably prompt delivery was only possible, of course, because the Commission had already been thinking it all through for some time, and could therefore more or less ‘pull a fully coherent draft out of the drawer’ when the Council finally called for it.42 As will have become apparent, by February 1993 the Commission was far from alone in worrying about the state of affairs in the international regulation of safety at sea. Over the preceding years and months, many observers had identified uneven application and unsatisfactory enforcement of IMO rules as a core problem.43 Nor was the Commission alone in identifying the need for a significant recalibration of roles and responsibilities between flag and port states. But it could certainly be argued that the Commission only now found itself in the unique position where it could ‘join up the dots’. It had finally gained both the legal and the political authority needed to not only confront Member States with a holistic analysis of the problems involved, but also present them with a list of proposals which provided much of the solution. And that is exactly what the Commission did with its communication on safe seas in March 1993. The document established two important principles from the outset. First, point 1 on page 1 left no doubt that the Commission recognised efficient shipping to be crucial for Europe. Second, the document unequivocally recognises that “the global dimension of shipping requires that priority be given to action at international

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level” and therefore considered it “appropriate for the Community to pursue the enhancement of maritime safety and prevention of pollution of the seas in the framework of existing international organisations”.44 Once these principles had been stated, however, the document presented a rather grim compilation of facts and figures. Mostly culled from various industry sources, these painted a dramatic picture of the state of affairs in the contemporary shipping sector. Numerous statistical tables and charts were presented to show trends and correlations between annual loss ratios by ship type, flag, age, geographical region and other indicators. Based on figures from Lloyd’s causality reports, the Commission pointed at nearly one thousand lives lost at sea year on year at global level from 1985 to 1991. Figures were also showing that the loss ratio varied enormously between the different flags and that many of the worst performers were also flag states that experienced growth, partly as a result of the ‘flagging out’ from European registers (Fig. 3.1). Finally, PSC detention data from the Paris MOU revealed a growing trend in number of deficiencies detected overall (Fig. 3.2). Philippines Greece Hong Kong Netherlands Poland Canada France Spain Japan World Australia USSR Bermuda Germany Denmark China Sweden Liberia USA Singapore Yugoslavia Indonesia Norway Italy Bahamas Panama Turkey Vanuatu Malta Cyprus South Korea St.Vincent & Grenadines 0

0.2

0.4

0.6

0.8

1

*Fleets of more than 2 million GRT Upper half of graph list flags where the size of the fleet is in decline, the lower part represent flags with growing fleet numbers Source: European Commission document COM(93) 66, Fig 9, p 8

Fig. 3.1  Loss ratio in percent of total fleet for some selected flags, 1987–1991

1.2

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30 25 20 15 10 5 0

1985

1986

1987

1988

1989

1990

1991

Source: European Commission document COM(93) 66 final, Fig 13, p 39. Fig. 3.2  Number of PSC deficiencies (in thousands) found across all vessel types by the Paris MOU, 1985–1991

On this basis, the conclusion drawn was that obvious limitations existed in the international regulatory system and that these had to be addressed. The Commission summed it all up in the following ‘mission statement’: The approach proposed in the present Communication seeks the enhancement of safety and prevention of pollution at sea through the elimination of substandard operators, vessels and crews from Community waters, irrespective of the flag of the ships. The main problem—given the universal regulatory approach in shipping—stems from the striking variation in the level of safety performance between fleets, including Member States’ fleets. This is, to a large extent, due to the different levels at which States, including Member States, are implementing and enforcing the internationally agreed standards. Individual action by Member States has not produced adequate results in the past and is unlikely to do so in the future. The Community, thanks to its political and legislative machinery, is uniquely placed both to ensure that Member States apply standards to ships flying their flags in a more uniform and rigorous manner and to enforce, with common methods and rigor, respect of the same standards on vessels of all flags when operating in EC waters.45

From this point of departure, the Commission suggested a Community action plan based on the following key principles. First, action at Community level should add value by addressing tasks which individual

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national action in the international organisations had proved incapable of tackling. Second, use should be made of the EU’s enforcement capabilities. These included the Commission’s mandate to oversee correct and timely Member State implementation of agreed legislation and, ultimately, conflict resolution by the European Court of Justice (ECJ). And, finally, mechanisms should be developed for coordinated action in relevant international organisations—primarily the IMO and the ILO—aimed at setting new standards which would not only be satisfactory for the EU, but which could also be accepted and respected by other maritime nations (flag states). In essence, what the Commission envisaged was a three-step approach, where step one would make IMO rules mandatory for EU Member States in line with their flag state obligations under international law (UNCLOS). Step two would make it obligatory for EU Member States to police the enforcement of the same internationally agreed rules for all vessels entering their ports through an enhanced PSC. Assuming that very few shipowners could commercially afford not to call at European ports, this approach would effectively bring the EU in a position to force non-EU flag states also to comply. And three, a better coordinated EU would play a more active role at international level. Annexed to the communication was a detailed action programme divided into proposals which would be put forward by the Commission as soon as possible in 1993, and a supplementary list of additional initiatives which the Commission would follow up through proposals as soon as possible and until the programme had been completed.46

Ship Classification Societies in the Regulatory Spotlight The communication concerning a common policy on safe seas is a very comprehensive document which addresses almost all aspects of the international maritime regulatory regime. Referring to its initial analysis of the main weaknesses in the regime, the Commission pointed to two aspects in particular. First, the relevant IMO (and ILO) conventions all had loopholes in the sense that they were sometimes incomplete and always needed more detailed implementation rules. Second, several of these international instruments were non-binding in character and had no supra-national policing mechanism in place. The Commission concluded that the two

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most important elements—or actors—which needed to be addressed in order to improve safety standards were the flag states and the classification societies.47 The rules and standards developed from the IMO and ILO instruments often left wide discretion to national administrations (the flag states) on their application. And studies had shown that flag as well as port states— including EU Member States—differed widely in both implementation and enforcement of the applicable standards.48 One way or another, the above-mentioned weaknesses in the regulatory regime involved the classification societies. More specifically, the Commission found that many of the identified problems arose from the fluid (ill-defined) interface between rulemaking in the IMO by governments under whose jurisdictions the vessels sailed, and the classification rules developed over centuries by the—mostly private—societies.49 Indeed, the Commission remarked that, “neither the SOLAS 74 Convention nor the Load Line Convention identify all standards to which all ships must conform at the building stage and during their entire life to a degree detailed enough to ensure that they are uniformly implemented in the Community in a non-divergent manner. This is particularly true for elements such as the hull, machinery, electrical and control installations. These fundamental ship components are controlled according to the rules of classification societies.”50 In this context, it is significant to note that the analysis did not end up questioning the relevance of classification societies, but rather the opposite. The Commission’s experts had indeed considered whether mandating flag states to take over the tasks performed by classification societies as part of an enhanced flag state compliance regime would be an option. But it decided against this. Instead, the Commission observed that Member States having to prepare sufficiently detailed standards for new building of ships would mean practically rewriting the extremely large and complex sets of rules and procedures developed by the classification societies. Not only would this involve developing all the rules on ship construction and the components involved, but also keeping them continuously updated as technological developments continued. This, the Commission concluded, “would be both unrealistic and unnecessary since the major classification societies, members of the International Association of Classification Societies (IACS), have developed, maintained and upgraded in the course of the years all necessary standards for these ships’ main components”.51

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A more pragmatic and realistic approach would therefore be for the EU to require that ships flying the flags of its Member States were built and maintained in accordance with rule requirements on hull, machinery, electrical and control installations determined only by those classification societies which met a certain set of common EU quality criteria to be established by a forthcoming directive. Because, as the Commission acknowledged, the problem was that, “during the past two decades the number of classification societies has greatly increased whilst several of them do not have the traditional characteristics to justify their being delegated to act on behalf of the administrations. For example, they have insufficient trained and experienced personnel and infrastructure to prepare and to carry out tests and to interpret rules”.52 As a consequence of the regime’s evolution, the Commission argued, national authorities were confronted with a threefold problem. First, the SOLAS rules concerning the most important parts of the ship had not been specified. Second, this created a danger which was frequently exacerbated by the absence of the expertise and long experience of a high-quality classification society. And, third, the standards which should be applied to ensure that the ship continued to be safe for the whole of its life were equally unspecified.53 With this conclusion, the Commission put its finger squarely on some of the fundamental anomalies in the international maritime safety regime. International law (UNCLOS) gave any sovereign nation the right to register ships under its flag.54 But that right also carried with it an obligation to exercise this jurisdiction so that all relevant international conventions were enshrined in national law and thereafter properly enforced for vessels flying the national flag.55 As demonstrated by all available statistics, however, the reality was that years of rock-bottom shipping markets, a formidable growth in open-register fleets and the consequent proliferation of new and less experienced flag administrations meant that it could no longer be taken for granted that the average flag state had either the means or the will to discharge their flag state obligations.56 That in turn made flag states heavily dependent on the knowledge of external expert bodies—in most cases, classification societies—to which they were allowed under international law to delegate parts of their flag state obligations for conducting statutory surveys and subsequently issuing statutory certificates on their behalf.57 This acknowledgment led to the introduction of the concept of a ‘recognised organisation’ (RO), which emerged for the first time in the Council’s safe seas resolution of January

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1993. As further developed in the ensuing Commission communication on safe seas, and then in detail in the draft proposal for a Council directive, this concept represented a major step-change in maritime safety regulation.58 The novelty was that the right to delegate authority was coupled with conditions and criteria. Six months later, the concept also surfaced in IMO resolution A739 (18), which raised the idea of recognition to the global level, as also envisaged in the Commission’s safe seas strategy.59 The outflow of vessels from the ship registers of traditional flag states, which were characteristically backed by strong maritime administrations, to open registers often lacking such expertise, accelerated the move towards delegation of authority to external bodies. For the classification societies, this meant that they gradually took on what had previously been regarded mostly as a government role in addition to their core role as providers of private maritime classification services to shipowners and shipyards. Such piecemeal amalgamation of both government and private regulatory functions in a single organisation might have made economic and practical sense. It saved costs. And, more fundamentally, the fact was that the know-how and geographic presence necessary to keep the maritime safety regime afloat were increasingly to be found not in the flag states but at the classification societies. The problem was that these developments also weakened aspects of a regime which had been based—at least to a certain extent—on checks and balances. In its modern (post-1945) form, this assumed that governments, in their capacity as IMO members, would develop statutory rules in the form of international conventions. The classification societies would then interpret these requirements in establishing detailed rules and standards and would certify on the basis of these. Governments—in other words, the flag states—would ultimately oversee that ships under their flag were in compliance with its rules. The growing trend towards delegating government tasks to the classification societies augmented the potential for conflicts of interest. And, as the Commission had come to realise, it not least made the entire maritime safety regime utterly dependent on how well these classification societies and ROs functioned.60 Adding to the challenges, the classification societies which had been dominant when the post-1945 international regulatory regime was codified were a reasonably homogenous group. They had all developed as integral parts of the western world’s global trading system. They were generally characterised by a national focus and close links to their respective national flag state administrations, but with a relatively clearly defined demarcation

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between official and private regulatory functions.61 These ‘incumbent’ societies were also generally recognised for highly skilled staff, full global coverage of surveyors and, not least, sustained commitment to research and development as the basis for rule development. In short, they combined years of experience with advanced research, which collectively ensured continuous development of rules and standards for the safe construction, operation and maintenance of seagoing vessels. By 1993, globalisation, lax flag state enforcement and new entrants to the maritime classification market were all factors contributing to the lowering of standards which had now become so visible even among the leading classification societies. For example, Tor-Christian Mathiesen—then head of DNV Classification and soon to be chair of IACS—admitted in 1995 that “class has not lived up to its expectations”.62 The Commission drew the overall conclusion that the problem complexes described above had led to several weaknesses in the development and enforcement of maritime safety rules at global level. Furthermore, the division of roles between statutory rulemaking by governments and private standard-setting and certification at the classification societies had become blurred, to the detriment of safety. At the same time, the Commission’s analysis had led it to conclude that, given the historical evolution of the international maritime safety regime, the classification societies still had a crucial role to play. For governments to take over that role would be costly and inefficient. The way forward for the EU, therefore, would be to determine that only societies which met a certain standard should be allowed to operate, and that their activities should be brought under better government supervision. A first step would be to agree on the quality criteria for ROs eligible to work on behalf of EU flag administrations, and to make these mandatory for all Member State administrations when selecting an RO. The next was to require Member States to enter into formalised agreements with their chosen ROs. Furthermore, a harmonised auditing system should be established across the EU to permit periodic audits of both the quality of EU ROs and the supervision of their work by Member States. As a third step, the Commission suggested that legislation should be introduced incentivising the ROs to harmonise their rules so that all ships would ultimately be built, equipped and maintained to equivalent and best available standards. Last but not least, Member States should work jointly in the IMO with the aim of achieving similar standards at global level.

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Poor Enforcement of International Rules Leads to Port State Control While measures listed in the first core proposal analysed above primarily addressed the role and responsibilities of Member States as flag states— including their relationship with the ROs—the second key proposal zoomed in on their role as port states. The ultimate aim was to find ways of putting pressure on non-European flag states and commercial operators in a manner compatible with international law.63 It will be recalled that the inability and/or unwillingness of many flag states to ensure and maintain the proper application and control of safety and environmental standards for ships flying their flags had been identified as a major challenge for more than a decade. As a result, the Commission had tabled an initial proposal for a mandatory EU port state control (PSC) regime as early as 1979. Even before that, however, some of the key IMO conventions—first MARPOL 73/78, then the convention on standards for training and watch keeping (STCW 78) and the Load Line convention—had been amended to permit stronger involvement by port states in their enforcement. Commenting on this evolution, Augustin Blanco-­ Bazan, a former head of the IMO’s legal office, observed that, “As a result, the Groetian concept of the freedom of the seas as identified with the freedom of navigation would become decisively altered: never again would it be based upon the exclusive jurisdiction of flag state”.64 At the time of the Commission’s 1979 proposal, Member States had preferred to develop the scheme in the form of voluntary cooperation outside the remit of the community. The Paris MOU on PSC was subsequently signed in 1982 by a handful of community and non-community governments. The Commission was included from the outset, however, and became a full and active member of the governing committee of the Paris MOU.65 By the time the maritime safety communication appeared in 1993, it was therefore well equipped with statistical evidence and first-­ hand practical experience of PSC for more than a decade. In the safety communication, the Commission was therefore able to point to a range of weaknesses with the regime.66 Since PSC began in 1982, more and more deficiencies had been found by inspectors every year. Despite their efforts, the situation did not appear to be improving.67 Vessels identified as substandard in one port covered by the Paris MOU frequently seemed to reappear in a neighbouring port without its deficiencies rectified. And a string of new entrants appeared to

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be arriving without fear of sanctions by PSC officers. All in all, the indications were that substandard operators—and the flags, classification societies and insurers they relied on—remained undeterred by the existence of the Paris MOU.68 Another lesson which could be drawn from the inspection statistics was that the number of detentions by national PSC administrations varied greatly. The Commission presented findings which showed that vessels detained annually as a percentage of the total number inspected, varied greatly between member signatories to the MOU (Fig. 3.3). The analysis revealed that the level of cooperation—and particularly the exchange of information between MOU members—was highly unsatisfactory. It was impossible, for example, for a PSC inspector in one port to determine whether and to what extent deficiencies had already been detected in another port. And, even worse, there was no way they could discover whether deficiencies had been addressed by the shipowner, the flag state and the classification society concerned. Finally, a striking lack of conformity could be seen in the targeting and inspection criteria applied by different MOU members.69 The Commission concluded that, “all the above points demonstrate that, after 10 years of voluntary operation of Port State Control under the MOU, and although a degree of progress has certainly taken place in the PSC system, a high number of substandard ships continue to operate in

12 10 8 6 4 2 0

Source: European Commission document COM(93) 66, Fig 15, p 41 Fig. 3.3  Detention ratio per port state member of the Paris MOU, 1991

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European waters. This, in turn, frustrates the efforts of those member States and surveyors who try to implement the rules rigorously, and enables by such methods a selective use of certain ports of destination to slip through the net of proper control. This situation should be eradicated”.70 As a remedy, the Commission suggested developing draft legislation which would make the Paris MOU mandatory for all EU Member States while at the same time strengthening its content. This would be done by including binding and harmonised inspection and detention criteria, determining common criteria for more in-depth inspections of certain high-risk vessels, establishing adequate national inspection organisations and a training programme for inspectors, and setting up an effective mechanism for control and evaluation of the effectiveness of the various PSC measures.71

Wide Consent for Action in European Council and Parliament The Commission’s safe seas communication was followed by hectic activity in both Council and Parliament. On 8 June 1993, barely 3 months after the Commission document saw the light of day, the Danes wrapped up their presidency at the transport council by guiding through the passage of a very substantial Council resolution, later known as the Council safe seas resolution.72 In its preamble, EU Member States welcomed “the Commission communication on ‘a common policy on safe seas’, including its coherent action programme on priority measures”.73 In many ways, the entire tone of the resolution acknowledged—to an extent the Council had never done before—that the Commission had a crucial role to play in developing a better-articulated and more ambitious EU policy on safe seas. Institutionally, this change of attitude found its most visible expression in point 2 of the resolution, which stated that the Council approved in principle the establishment of a committee on safe seas (COSS). This committee formalised the Commission’s duty to consult with experts in Member States on existing or future EU legislation concerning maritime safety matters, and to assist and advise the Commission on all matters relating to maritime safety and the prevention or limitation of pollution owing to maritime activities.74 However, by agreeing to establish such a ‘comitology committee’, which is an instrument defined and embedded in

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the formal hierarchy of EU decision-making, the Council not only accepted the principle of a more active role for the Commission in the area of safety at sea, but also recognised that such role might be expected to evolve and grow in the future.75 With the safe seas resolution, the Council not only lent its unequivocal support to the analysis and main principles outlined by the Commission, it also committed itself to reaching agreement on the broad lines of the RO and PSC legislation by the end of the year. In addition, the Council urged the Commission to submit proposals on several additional topics. Among these were minimum requirements for vessels carrying dangerous or polluting cargoes in and out of European ports, procedures for joint EU enforcement of relevant IMO conventions, a common approach to maritime traffic surveillance—including the establishment of a European vessel traffic service (VTS) system—and European rules for marine equipment certification. The last of these was to have the biggest impact on the classification societies.

EU Interaction with the IMO and the Wider Maritime World Meanwhile, the IMO had not been sitting idly by on the side lines of this European drama. In pace with the ever-increasing shift in the world fleet from registers which presupposed genuine links between flag and vessel and over to open registers, the IMO’s Maritime Safety Committee (MSC) had increasingly been required to address issues of (lack of) flag state implementation and performance. In 1991, this reached a point where the USA, referring to the many deficiency reports issued from the port state control programme operated by the US Coast Guard (USCG), stated that it [the USA] did not considered that port States should have to carry the burden of having to exercise quality control for flag States. […] In its [the US delegation’s] view, it was time for the Committee to develop standards or voluntary guidelines for flag States on how to administer their maritime safety and pollution prevention responsibilities.76

The majority of the MSC agreed, and the issue of flag state compliance and implementation was added to the agenda for MSC 60 (1992). Based on an initiative from a group of leading IMO member states, a dedicated

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working group was established with a view to developing a draft IMO Assembly resolution on flag state standards.77 The working group met in time for it to deliver an interim report to MSC 60, where it also suggested the establishment of a dedicated MSC sub-committee to deal explicitly with the by then wide variety of issues related to flag state compliance.78 This proposal was later endorsed with enthusiastic support by Europe, and the IMO MSC’s sub-committee on Flag state implementation (FSI) met for the first time in April 1993. The new IMO flag state implementation body therefore came to hold its first meeting amid the European furore which followed the Braer incident. In anticipation of the inaugural session, IMO secretary general O’Neil pointed to the Commission’s alarming findings on uneven flag ­state implementation. “Flag state compliance remains a permanent concern for the IMO”, he said, and described the Commission’s findings as “wide and worrying”.79 O’Neil reported that the FSI would not be limited merely to checking the compliance of flag states but would also be free to recommend how IMO conventions could be more efficiently implemented—including developing guidelines for flag state delegation of authority to ROs.80 Within a year of its creation, the FSI had established its worth by developing draft resolutions for the MSC to adopt on ‘Guidelines for the authorisation of organisations acting on behalf of the administration’ on the one hand, and ‘Interim guidelines to assist flag states’ on the other. Both were adopted by the IMO Assembly in November 1993.81 Private-sector interests were also becoming actively engaged in providing input.82 While the International Transport Workers Federation (ITF) remained strongly committed at the global level to the anti-FOC campaign it had been running for almost half-a-century, many of Europe’s national seafarer unions had been vigorous for years at both regional and national levels in battling the mainly negative impact of shipping globalisation on their members. Their representatives were making these arguments as early as the 1978 Parliament hearing in Paris, and the union fight against flagging out had been under way for decades at the national level.83 But many of them had also been forced to give way and engage with the real world. Unions all over Europe were deeply embedded in negotiations with shipowners and governments over employment conditions in the second or international registers which had by now mushroomed around the continent (see Table 1.3).

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With these new constructions, the unions representing merchant navy officers—such as British masters’ union NUMAST—saw a tiny opportunity to secure continued employment for their members. From this perspective, these officer unions also engaged strongly with maritime safety issues at multiple levels. Rooted in an elaborate ‘manifesto’, NUMAST made its points forcefully both at national level to the Donaldson inquiry and internationally to the EU and the IMO. It repeatedly argued that the safety debate had become too concentrated on the ‘structural weaknesses’ of vessels, with far less attention paid to the decay in the ‘software’—seafarer education, pay, and living and working conditions. Improved on board operational standards, a strengthened STCW convention and better control of flag state implementation of agreed IMO and ILO rules would all have to be part of the solution, the union maintained. In conclusion, NUMAST urged nothing short of a total “examination of the regulatory structure of international shipping”.84 In early 1993, almost all INTERTANKO’s attention and resources were directed at the USA. Negotiations were ongoing with the USCG on the modalities for implementing the new and stringent OPA 90 requirements for the financial liability of tanker owners and mandatory pollution response plans. However, the organisation did gradually become engaged in the discussions on EU initiatives, and in particular on their implications for the integrity of the IMO. During the immediate aftermath of Braer, however, the tanker owners chose to concentrate their attention on the suggestions made primarily by the UK government concerning safe tanker lanes and vessel-routing systems. INTERTANKO chair Ugland reported that these topics would figure prominently at the organisation’s council meeting due to be held soon in Washington. Ugland also observed that “few would dispute that fast-developing information technology and the example of other industries, including aviation, suggests that a fresh appraisal of maritime traffic routing and control could pay dividends in terms of safety and pollution prevention”.85 Judging from statistics collected by the International Tanker Pollution Federation, ITOPF, the INTERTANKO chairman clearly had a point since the majority of tanker accidents since 1970 seems to have involved either collision or grounding as registered cause (Fig. 3.4). The Commission, however, had as we have seen, directed its spotlight particularly on the crucial role played by the classification societies. And here, the same ITOPF statistics referred to above gives ample support to the Commission for doing so, since the categories ‘hull failure’,

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35% 30% 25% 20% 15% 10% 5% 0%

Source: ITOPF Oil Tanker Spill Statistics 2022, Fig. 7

Fig. 3.4  Causes behind tanker accidents with more than 700 tonnes of oil spilled, 1970–2022

‘equipment failure’ and ‘fire/explosion’ which together accounts for close to 30% of the casualties, might be directly linked to unsatisfactory work by the classification societies. Furthermore, the tanker fleet was steadily gaining age, and the older the vessel the higher the risk for a fatal accident (Fig. 3.5). This again supported scrutiny of the work performed by classification since older vessels require more thorough scrutiny by the surveyors than newer vessels normally do. Meanwhile, the societies themselves maintained a rather low profile, at least as a group, while becoming subject at the same time to increasing pressure from other interested parties. There were, in fact, remarkably few public appearances by the societies at the time of the Braer incident—to the extent that this in itself attracted public comment. Josef Klar, a director of Bremer Vulkan, Germany’s largest shipbuilder, observed, for example, that the classification societies, “have much more information on the true safety problems of old vessels than they release”.86 Frequent criticisms were also voiced in the trade press, with some commentators even suggesting that classification certificates had become largely valueless.87 And an increasing number of allegations had been made that classification certificates, even from the most reputable societies, were up for sale in the black market.88

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0.6 0.5 0.4 0.3 0.2 0.1 0

0-4 years

5-9 years

10-14 years

15-19 years

20-24 years

>25 years

Source: Institute of London Underwriters as reproduced from graph presented in the European Commission document Com(2000) 142 final, Brussels 21.3.2000, p 12

Fig. 3.5  Percentage of world fleet lost by age groups, 1989–1991

This lack of public presence by the classification societies was particularly striking given that IACS had been founded as early as 1968.89 However, it was only from 1990 that the association saw the need to appoint a permanent secretary in London, for example, and the deeply entrenched culture of operating as individual organisations—as opposed to a coordinated industry—persisted long after IACS saw the light of day. Commenting on alleged certificate fraud, James Bell, the association’s first permanent secretary, said that he “would be only too willing to investigate if only anyone came up with any firm information”, indicating that while rumours were circulating, nobody—including his own members—had so far presented any solid evidence which could either confirm or refute the claims.90 Gard Paulsen offers an interesting look at the culture of maintaining a low public profile among the classification societies in his analysis of the history of DNV, a prominent IACS member. By 1993, the Norway-based society had been working for some time on a concept labelled ‘total safety class’, where its classification work and RO services would be managed as a single activity. In that context, DNV embarked on a public relations strategy where its opinions on safety issues and industry standards were broadcast alongside a more aggressive marketing of its own service portfolios. This rather unorthodox approach led shipping monthly Seatrade to

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comment that DNV’s “hard sell shakes [the] discrete world of classification”. It also noted that DNV’s behaviour had led to “disgruntled rumblings” amongst the other IACS members.91 That is not to say IACS members were sitting still. Dissatisfaction had been growing for quite some time, both among the leading members of the association and in the maritime safety community as a whole. A main bone of contention was that substandard owners could easily transfer vessels from a strict society to a more lenient one. They could thereby avoid costly repairs the moment they had trouble in obtaining renewal of certificates because the receiving society would not always require the same work to be done. This ‘class-hopping’ practice was first addressed by the IACS transfer of class agreement (TOCA), which was signed in 1992. Amended and expanded on several occasions, TOCA—combined with the establishment of the QSCS—a mandatory external audit scheme for IACS members—proved important. Together with the IACS enhanced survey programme (ESP) for ageing vessel, which was agreed more or less at the same time, TOCA would turn out to be one of the classification industry’s best defensive moves.92

Mid-1990s, the Agreed EU ‘Maritime Safety Programme’ Nears Completion By 1995, all the ambitious measures agreed by the EU in the hectic post-­ Braer months of 1993 had either been adopted or were progressing towards adoption. Most importantly, the ‘RO directive’ had been adopted in November 1994.93 In line with the Maastricht treaty’s new co-decision rules, this had been subject to wide and thorough consultation between the three key EU institutions.94 However, its most striking aspect was the degree of agreement. The Commission’s initial proposals were adopted with near unanimous support from both Council and Parliament. This meant that, for the first time, the maritime classification societies found themselves subject to international government regulation, albeit at a regional European level. The proviso was, of course, that a society had to seek recognition to become an RO for one or more EU flag state administrations. However, it is worth noting that the impact on the societies remained for most part indirect. The new directive, which Member States were expected to incorporate into national law by December 2005, was directed towards them and specified what they had to do if and when

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their maritime administrations were to delegate part of their obligations under international law to one or several classification societies. It made clear that EU Member States could only recognise societies which met the directive’s fairly stringent criteria. Member States had to formalise their working relationship with their ROs, monitor their performance regularly, and report to the Commission and fellow Member States accordingly. They were also required to monitor RO performance through PSC. However, article 15 of the directive also provided some explicit directions for the activities of the ROs. It required them to consult with each other to maintain the equivalence of their technical standards and the implementation of these. And it made it mandatory for an EU RO to provide the Commission with periodic reports on this work of harmonising standards. Furthermore, EU ROs were required to demonstrate a willingness to cooperate with PSC and to provide Member States with all relevant information when vessels changed class or were declassified. The ‘PSC directive’ was adopted on 19 June 1995.95 Again, all the broader lines of the Commission’s proposals remained intact through the co-decision procedure, and the directive entered into force immediately. With these two directives in place, the COSS—formally mandated by the RO directive—also became operational.96 Furthermore, a handful of other legislative acts were adopted before the end of the decade in such fields as passenger ro-ro vessel safety, seafarer working conditions and fishing boat safety.97 Of particular importance for the classification societies was the adoption of the directive on marine equipment, known as the MED.98 Its purpose was, according to article 1, to enhance safety at sea and the prevention of marine pollution through the uniform application of the relevant international instruments relating to a list of marine equipment to be placed on board ships for which safety certificates are issued by or on behalf of Member States pursuant to international conventions and to ensure the free movement of such equipment within the Community.99

As is evident from this wording, the MED had two objectives. One was to enhance safety through uniform application of rules which had mostly been developed and certified by the various classification societies. That mirrors the thinking behind the RO directive’s article 15.

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However, the second purpose—on the free movement of such equipment within the Community—did not really have much to do with maritime safety but was driven rather by the goals of the internal market. As we shall see later in this study, this two-fold objective would be pursued many times over the subsequent decades and complicated the relationship between maritime classification and the Commission. All in all, however, the action programme spelled out in the Commission’s communication on maritime safety of 1993 had largely been completed by the mid-1990s, and the consensus was that this was probably as far as one could expect to get in terms of Community intervention and legislation in the field. Meanwhile, during the late summer of 1995, a new body of commissioners and a newly elected Parliament arrived in Brussels in accordance with the scheduled rotation. Out went Spanish transport commissioner Abel Matutes, to be replaced by former British Labour leader Neil Kinnock. With most of the safety strategy delivered, the time was now ripe to explore policy measures which would best allow the EU to enhance the competitiveness of the Europe-based maritime cluster. The question was how it could provide its shipping industry and wider maritime sector with a level playing field while not compromising safety, seafarers’ social and working conditions, and the free-market principles which the EU and OECD countries in general subscribed to. In March 1996, therefore, Kinnock presented the Council with a communication entitled: Towards a new maritime strategy. The Commission acknowledged here that, while the maritime safety policy of the EU had already been established, “a common answer to the problems of the competitiveness of EC shipping has not yet been found”.100 What Kinnock alluded to, was the recurring discussions on how best to combine strict safety and environmental regulation with a competitive industry under European flags. With many Member States embarking on the second-register route, 6 years had also passed since the Commission first launched its idea of establishing the Euros—a common European register—as a way forward.101 That proposal went nowhere at the time. However, the political heat which followed the sinking of the Braer and the intensified focus on how to drive substandard shipping out of the market prompted several Member States and other stakeholders to call for a renewed proposal. Kinnock mentioned plans for a revamped version when he presented his political priorities in the early autumn of 1995. But, in the end, the idea was not found worth taking any further. Instead, the

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Commission now chose to pursue a related track—namely, the announcement of a forthcoming set of state aid guidelines. The Commission thereby accepted that the common register idea had been left behind by steps now taken by Member States setting up second registers. Rather than insisting on a common EU register, the aim of the state aid guidelines was to define which financial tools Member States could deploy without running the risk of violating internal market rules and thereby undercutting each other’s competitive position.102 In addition to defining and ring-fencing measures to support European flags, the Commission floated measures “to promote self-regulatory codes of behaviour in shipping”.103 The idea was that, by raising the bar for industry self-policing, the relative competitive position of the Europeans would improve. The quest to heighten maritime safety thereby also shifted from a concentration on legislation and enforcement to what was to develop into a fairly powerful voluntary drive, the Quality Shipping campaign.

Renewed Focus on Industry Self-Regulation It was the UK which took the lead in shifting maritime policy momentum from a focus on government regulation to greater industry involvement and self-regulation. Improvements in the public good were to be achieved by appealing to market forces. Glenda Jackson, appointed Britain’s Labour transport minister in 1997, was politically close to Kinnock and, in preparation for the UK’s forthcoming presidency of the Council during the first half of 1998, the two worked closely with industry partners and the IMO in preparing the campaign for quality shipping.104 Blowing new life into the cooperation agreement signed back in 1974, Kinnock also met the IMO’s O’Neil in early 1997. According to Roberto Salvarani, who was present in his capacity as the Commission’s head of unit for maritime safety, this meeting established a whole new tone in the relationship between the two organisations. He reported that Kinnock underlined that the “Commission had no intention to shadow IMO. However, since the IMO most unfortunately would continue to be denied enforcement powers by its members, the Commission could offer its help by transposing IMO Conventions and Resolutions into EC law. Combined with port state control, this would allow for checking compliance by the same rules on all vessels entering EC ports independently of

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their flags. It was agreed by the two that EC-IMO cooperation along such lines could offer a win-win formula”.105 One tangible outcome of the meeting was that Kinnock got invited to address the IMO assembly in 1997. Backed by several OECD studies which substantiated claims of unfair competitive advantages for shipping operators who disregarded international rules and standards, he took the opportunity to communicate the messages he had discussed with O’Neil.106 He also explained the rationale behind the EU’s actions and achievements to the IMO’s member states. Kinnock once again emphasised the strong EU commitment to cooperation with and in the UN body. In the same vein, he stressed the importance of working with, rather than against, quality operators and highlighted the potential for voluntary measures if the industry wanted to fend off additional and burdensome legislation. That set the stage for a Quality Shipping campaign which would develop not only at European but also at international level.107 This new and more dynamic relationship between the Commission and the IMO, together with the activities of the now well-established IMO FSI, also helped pave the way for EU Member States and the Commission becoming more active in submitting input and proposals to the IMO debates.108 The new Commission approach also served as an effective sounding board for INTERTANKO’s newly articulated vision and catchphrase—the chain of responsibility—which had been launched by the tanker organisation in 1996. This concept could, of course, be interpreted as a smart PR trick, which successfully helped the tanker industry to avoid carrying all the blame. Regardless of such possible motives, however, the concept— coined by Greek INTERTANKO member Philip Embiricos—quickly caught on and helped to set the agenda with policymakers and industry partners alike.109 Combined with the association’s introduction of clear and fairly stringent quality criteria for membership, the chain of responsibility mantra served to bring all the stakeholders involved into the debate.110 So, it fitted perfectly that Kinnock, speaking at a shipping event in Lisbon during June 1998, urged every sector of the maritime cluster to serve its own interests by preserving a maximum of self-regulation. This could be achieved, he suggested, by each sector proactively preventing deficient operators from undermining the good reputation and commercial interests of those who acted responsibly. Furthermore, Kinnock argued, each sector should develop means of benchmarking not only their own activities but also those of their respective suppliers.111

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The backbone of the Quality Shipping campaign, promoted through several high-profile conferences around the world, was the invitation to the parties to develop and sign an international quality shipping charter.112 This initiative was generally well received and, over the roughly 2 years of the campaign, the charter secured the signatures of all the major maritime associations, ranging from cargo owners via shipowners to insurers and seafarer unions.113 A more direct outcome of the campaign was the establishment of the EQUASIS database. Launched jointly by the Commission and the British government in November 1997, the initiative was later supported—and an MOU signed—by the maritime administrations of France, Spain, the UK, Singapore, Japan and the USA.114 As highlighted by Kinnock both in Lisbon and at the IMO assembly, the aim was to improve transparency and thereby facilitate industry benchmarking by gathering safety-related information on individual vessels in the world fleet and making it accessible to all via the internet.115 The French maritime administration, already in charge of the SIRENAC database of the Paris MOU, volunteered to take responsibility for EQUASIS as well. In close collaboration with the Commission, it provided an information system which basically combined all existing safety-­ related data on ships made available from both public and private sources. EQUASIS was formally up and running in May 2000.116

Summing Up and Concluding Remarks, 1990–1999 By the time Braer hit the Shetland rocks, Europe was ripe for change. Nine months later, the Maastricht treaty entered into force, introducing Council majority voting and a co-decision procedure which would lift the Parliament up on a par with the Council and the Commission in terms of legislative influence. There was therefore a widely shared anticipation of much more ambitious community policies to come. This was also true in the maritime field, where these constitutional changes coincided with a gradual shift in focus of national shipping policies from supporting their own fleets to paying more attention to common threats and societal costs resulting from oil pollution and other externalities of shipping. Both the timing and the location of Braer made it the spark that set off a political chain reaction and interplay, which, would hardly have been conceivable only a few years earlier.

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The year 1993, therefore, was one of breakthrough. First, this became the year when Member States acknowledged that a common EU approach was not necessarily a threat against European governments’ interests in maritime safety regulation, but rather a way of shoring up the regime itself. Denmark’s vigilance and decisive action as Council chair played an important role here. But this was also a pivotal year for the Commission’s build-up of own maritime know-how, already decades old. Now, this accumulated expertise allowed the Commission to respond within weeks when the Council finally requested a strategy, and to do so in such a well-­ founded manner that it determined the direction of the EU’s policy for years. The strategy invoked the strength of EU governance and combined it with continued Member State support for the supremacy of IMO rulemaking at sea. The mechanisms used were well thought out.117 By first making IMO rules mandatory and therefore legally enforceable through EU legislation, the EU addressed what had been identified as the main weakness of the IMO system, namely its lack of enforcement capability. That first step taken, it became logical and legitimate for EU Member States to enforce these same internationally agreed rules for all vessels entering their ports through an enhanced and obligatory PSC system. Assuming that very few shipowners could commercially afford not to call at European ports, this approach would effectively mean that the EU would be in a position to force non-EU flag states also to comply. The PSC directive became, therefore, an early example of the EU consciously planning for a Brussels Effect, where community legislation was carefully crafted to achieve a policy outcome in Europe through mechanisms which also forced non-EU actors to comply with EU standards.118 Secondly, the classification societies were drawn in as a major element in the EU’s maritime safety strategy. Importantly, by doing so the EU recognised the crucial role of these mostly private organisations for the good functioning of the international regime. However, this also implied that the Commission had concluded that ‘these societies would have to be better controlled if the private-public character of the international regime’ was to be maintained. With these changes, a shift can be detected from what could be called a flag state approach towards a more port-state-oriented outlook, even though the EU continued to embrace several of the world’s leading shipowning nations.119 Expressed through the Council’s gradual alignment with the Commission’s maritime regulatory worldview, this shift is

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significant in a historical perspective. The entire maritime regulatory regime, as codified and institutionalised through the IMO, had essentially been built through history around the shipowning and trading interests of the leading European maritime nations. But these interests had changed quite dramatically since the 1960s. The relative importance of European flags was in sharp decline. Seafarers on the vessels were increasingly recruited from outside Europe, and even associated maritime industries such as shipbuilding—which once provided significant employment for Europeans—had shifted towards Asia.120 The centre of gravity for shipping as a politically significant national industry was on the move from Europe to the emerging economies of the developing world. In parallel, public concern with environmental issues in general and marine pollution in particular had grown into a major political force which pushed the shipping policy priorities of the western world from a focus on national trading interests towards the defence of more universal goals.121 As Tan observed, “Cumulatively, these developments represent a significant retreat of those traditional bulwarks of maritime commerce—the time-hallowed concepts of free navigation and flag state primacy”.122 Or, in the words of Cafruny, “From the perspective of Western Europe, the history of shipping since 1945 has been a series of rearguard actions in defence of the status quo. Understanding the limitations of purely national policies, the nations of Western Europe have sought as a bloc to repeal commercial and political challenges from the Third World, from the Soviet Bloc and, above all, from the United States. Western Europe has fought on various terrains: in the United Nations with support from maritime unions; in the OECD against the United States; and once again in the United Nations against LDCs, where its support from the United States has been limited”.123 Indeed, while the EU Member States were still very reluctant on the threshold of the 1990s to allow any form of supranational—not to mention regional—authority to overrule their national sovereignty as flag states, this attitude had significantly changed by the end of the decade. By then, they had come quite a way in transferring competence in maritime affairs from national to EU level. That also brought with it a more prominent role for the Commission. This was even true for the interactions with the IMO, where European submissions now also occasionally included the Commission as co-sponsor.124 By the end of the twentieth century, therefore, the EU Member States had embarked on a middle course where their historically rooted

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nationally oriented self-interests as shipping nations became increasingly balanced at EU level against a growing shared concern as port and coastal states. And, not least, this was also a matter of striking a balance between the autonomy of the individual Member State and a growing realisation of how common EU rulemaking could provide more efficient solutions. The EU’s maritime policy processes in the 1990s had transferred considerable decision-making power (competence) from the national capitals to Brussels. That in turn had drawn the role of the classification societies out of the shadows and made them a centrepiece of EU maritime safety policy and legislation. All in all, the EU had settled on a course congenial with the international safety regime. It had chosen an approach where the strengths of EU legislation worked to mend internal contradictions, reinforcing rather than undermining the principles, norms, rules and decision-making procedures around which the actors in maritime safety converged.125 An eventful decade ended in coalition around renewed trust in industry self-governance. Hence the rather conciliatory mood that reigned in the Brussels maritime policy cluster in early December 1999.126

Notes 1. The future development of the common transport policy. A global approach to the construction of a Community framework for sustainable mobility, COM (92) 494 final: 42. The purpose of a Commission White Paper is to launch a debate with the public, stakeholders, the Parliament and the Council in order to arrive at a political consensus. White papers will often be followed up by more focused communications, which also may be accompanied by draft legislation. 2. The future development of the common transport policy, p 43. 3. Henrik Ringbom, The EU Maritime Safety Policy and International Law, Publications on Ocean Development (Leiden: Brill, 2008): 5. 4. For EU access to the UNCLOS, see Council decision 98/392, OJ 1998 L 179. 5. Bernardo Urrutia, “The EU Regulatory Action in the Shipping Sector: A Historical Perspective,” Maritime Economics & Logistics; Basingstoke 8, no. 2 (June 2006): 202–221. 6. Where almost all legislation relevant to the internal market was concerned, including maritime, the new treaty introduced the “co-decision procedure”. This meant that, from then on, no final decision could be reached without the active consent of the Council, the Parliament and the Commission.

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7. The vessel lost engine power and ran aground on 5 January 1993. For a detailed but also passionate account of these events see, for example, Jonathan Wills and Karen Warner, Innocent Passage: The Wreck of the Tanker Braer (North Pomfret, Vermont: Trafalgar Square Books, 1993). 8. Wout Broekema, “Crisis-Induced Learning and Issue Politicization in the EU: The Braer, Sea Empress, Erika, and Prestige Oil Spill Disasters,” Public Administration 94, no. 2 (2016): 381–398. 9. This outburst was reinforced by the fact that barely a month had passed since another oil tanker, Aegean Sea, ran aground and spilled its cargo on the Atlantic coast of Spain. 10. Le Figaro, 6 January 1993. 11. “Tough spill prevention steps to be expected”, Lloyd’s List, 8 January 1993. 12. “Tough spill prevention steps to be expected”. 13. “Tough spill prevention steps to be expected”. 14. “Tough spill prevention steps to be expected”. 15. “UK to study coastal oil transport lanes”, Lloyd’s List, 13 January 1993. 16. A substandard vessel would be defined as one with a condition far below what international rules would specify. These vessels were often older than 15 years, poorly maintained and operated under open registry flags. 17. In Australia, the main focus of attention was rather on substandard dry bulk vessels employed by the country’s very substantial mining industries. See, for example, Ships of Shame, Australian Parliament report, December 1992. 18. “Shell urges tanker crack-down”, Lloyd’s List, 21 January 1993. 19. Independent tanker owners possessed the vessels not owned by oil companies. 20. “INTERTANKO chairman warns against panic measures”, Lloyd’s List, 22 January 1993. 21. Alfons Guinier, European Shipping from the Viewpoint of European Shipping in Shipping Law Faces Europe (Antwerpen: European Institute of Maritime and Transport Law, MKLU, 1995). 22. The views of Shell, a major charterer, have already been mentioned. But the European shipbuilding industry was also arguing in favour of phasing out older tankers. See, for example, the Danish Shipbuilders Association in Lloyd’s List, 16 January 1993. 23. A tanker would be branded as double hull when constructed with a double layer of steel plates so that a certain void was left between them. According to many specialist engineers, such a design would provide more robust protection against accidental leaks than a single hull. However, far from all experts agreed with this and the measure was quite controversial in marine engineering circles. See, for example, E Galiano, “In the Wake of the Prestige Disaster: Is an Early Phase-out of Single-

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Hulled Tankers the Answer?”, Tulane Maritime Law Journal, no 1 (2003): 113–133. 24. European Parliament resolution of 21 January 1993 on the Braer tanker disaster, OJ C 1993/42, 155. 25. For further details see, for example, Iliana Christodoulou-Varotsi, Maritime Safety Law and Policies of the European Union and the United States of America: Antagonism or Synergy? (Berlin: Springer, 2008): 56–57. 26. “EC heads for split over maritime safety”, Lloyd’s List, 23 January 1993. 27. “Europeans urge tanker curbs”, Lloyd’s List, 7 January 1993, and “Germany demands tanker crackdown”, Lloyd’s List, 20 January 1993. 28. “EC heading for split over maritime safety”, Lloyds List, 21 March 1993. 29. European Council in Copenhagen, 21–23 June 1993, Conclusions of the Presidency, SN/180/1/93 REV 1 30. The Council presidency changes every 6 months, with Denmark taking over from the UK on 1 January 1993 and handing over to Belgium on 1 July. The government holding the presidency has considerable flexibility over how to chair the various Council meetings in every sector and at all levels. It is therefore by no means a matter of indifference which country occupies this role at a given moment. 31. For a discussion of Denmark’s influence in the EU, see Rasmus Brun Pedersen, “Denmark and the Council of Ministers”, Lee Miles and Anders Wivel eds, Denmark and the European Union, Europe and the Nation State (Abingdon, UK: Routledge 2014): 95–108. See also, for example, the Financial Times portrayal of Denmark “punching above its weight” as part of an interview with Danish commissioner Margarethe Vestager, 22 September 2017 32. For an argument about how the EU ended up strengthening rather that weakening the IMO through its regional engagement, see, for example, Judith van Leeuwen and Kristine Kern, “The External Dimension of European Union Marine Governance: Institutional Interplay between the EU and the International Maritime Organization,” Global Environmental Politics 13, no 1 (February 2013): 69–87. 33. Aegean Sea, a Greek tanker, had gone aground on the coast of Galicia in December 1992. 34. See Chap. 1 on the Paris hearing. 35. The Council adopted the Maastricht Treaty in 1992. Incorporating the Single European Act, this treaty change was subsequently included in the Treaty of Rome to create the consolidated Treaty of the European Union, which entered into force on 1 January 1993. Of crucial importance for further developments in several areas—including the maritime—was the fact that the revised treaty introduced entirely new decision-making procedures. These notably included a move from Council unanimity to

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majority voting in most domains, including the maritime. Most importantly, the new treaty significantly enhanced the powers of the Parliament. 36. Paragraph 9 of the Parliament resolution on the Braer tanker disaster of 21 January 1993, ref. OJ C42, 15 February 1993, p 155. 37. The strong push by the British Labour Party has already been mentioned. But the climate was also becoming tense on these issues in Germany, where leading Bundestag members of the Chancellor’s CDU party, for example, started to put forward very radical ideas. See Lloyd’s List, 20 January 1993. 38. All citations are taken from the Council of the European Communities general Secretariat Press Release 4009/93 (Presse 8), Extraordinary meeting of the Council of Environment and transport, Brussels 25 January 1993. 39. “EC in push for IMO power”, Lloyd’s List, 29 January 1993. 40. “‘Uptight’ IMO battles back against critics”, Lloyd’s List, 18 February 1993. 41. A Common Policy on Safe Seas, COM (93) 66 final. 42. Author’s interview with Roberto Salvarani, November 2018. 43. See, for example, the Paris public hearing organised by the Parliament in 1978, Chap. 1. 44. A Common Policy on Safe Seas, COM (93) 66 final, introduction para 1–4 and part I, pp. 12–13, para 20–23. 45. A Common Policy on Safe Seas, COM (93) 66 final, part I, p 2, para 1 IV. 46. A Common Policy on Safe Seas, COM (93) 66 final, annex I. 47. A Common Policy on Safe Seas, COM (93) 66 final, part I, para 30. 48. A Common Policy on Safe Seas, COM (93) 66 final, Part II, paras 57–70. 49. All the traditional western classification societies are organised as private entities in one way or another. On the other hand, most of the more recent entrants to the maritime classification market, chiefly from Asia, are government-­owned. This applies, for example, to China’s CCS, and the Japanese and South Korean equivalents. Nevertheless, these “new” societies compete for business in world shipping markets against the genuinely private western operators. In addition, neither China nor Japan nor Korea allows for western societies to operate as ROs for their national flags. This situation creates market imperfections which may also have safety implications. 50. A Common Policy on Safe Seas, COM (93) 66 final, part II, para 7. The SOLAS convention itself makes explicit reference to the role of classification societies in Chap. 1, regulation 6 (a and b) and in part II, para 7.SOLAS. 51. A Common Policy on Safe Seas, COM (93) 66 final, part II, p  26, para 13.

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52. A Common Policy on Safe Seas, COM (93) 66 final, part II: 24, para 8. 53. A Common Policy on Safe Seas, COM (93) 66 final, part II: 26, para 13. 54. UNCLOS arts 90, 91. 55. UNCLOS art 94. 56. It might be argued that the RO role was not entirely new. Flag states had also delegated part of their authority to classification societies in the past. During the 1970s and 1980s, however, the practice reached an entirely different level of prominence. Partly as a result of decolonisation and partly because of the collapse of the Soviet Union, several nations sought to build their national fleets throughout the 1960s, 1970s and 1980s. It became a cherished goal for many newly independent states to have an airline and a fleet under their national colours. See also the discussion of the UN liner code in Chap. 1. Not all newcomers had the administrative and financial resources to do this in accordance with the rules. 57. Such delegation of authority is permitted under the relevant IMO conventions. See, for example, SOLAS chapter I, regulation 6 (a and b). 58. Proposal for a Council Directive on common rules and standards for ship inspection and survey organisations, COM(93) 218 final, OJ C 167/13 of 18 June 1993. 59. IMO Resolution A.739(18), Guidelines for the Authorisation of Organisations Acting on Behalf of the Administration, 4 November 1993. 60. For interesting discussion of the legal aspects of the regulatory relationship between flag state and RO, see, for example, Francesca Maria Carlsson, Classification Societies Acting on Behalf of States, Unpublished master’s thesis, University of Oslo, (2016); and Kristina Maria Siig, “Private Classification Societies Acting on Behalf of the Regulatory Authorities Within the Shipping Industry”, Scandinavian Institute of Maritime Law Yearbook (2016). 61. It should be noted that this is not cut and dried. To a certain extent, the interface between flag and class regulation has always contained elements of competition and power play. See, for example, Mansell: 117, and Paulsen: 138–142. 62. Paulsen: 248. 63. Ringbom, The EU Maritime Safety Policy and International Law. 64. Agustín Blanco-Bazán, “IMO—Historical Highlights in the Life of a UN Agency”, Journal of the History of International Law 6, no. 2 (July 2004). 65. A Common Policy on Safe Seas, COM(93) 66 final, part II: 38, para 60 and authors interview with Roberto Salvarani, November 2018. 66. Roberto Salvarani, “The EC Directive on Port State Control: A Policy Statement,” The International Journal of Marine and Coastal Law 11, no 2 (1996): 1225–1231. 67. A Common Policy on Safe Seas, COM (93) 66 final, part II: 39, figure 13.

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68. A Common Policy on Safe Seas, COM (93) 66 final, part II: 39–40, para 61 and 62. 69. A Common Policy on Safe Seas, COM (93) 66 final, part II: 43, para 66. 70. A Common Policy on Safe Seas, COM (93) 66 final, part II: 45, para 69. 71. A Common Policy on Safe Seas, COM (93) 66 final, part II: 45, para 70. 72. Council resolution of 8 June 1993 on a common policy on safe seas, OJ 93/C 271/01. 73. Council resolution of 8 June 1993: 1. 74. Council resolution of 8 June 1993, point 2: 2–3. 75. For the legal foundation of such committees, see Council decision 87/373/EEC of 13 July 1987, OJ No L 197, 19 July 1987, p 33 This decision specifies the procedures for exercising implementation powers— in any sector—conferred on the Commission. The comitology committees to be set up would accordingly ensure adequate consultation between Commission and domain experts in the Member States on developments relevant to the implementation and maintenance of the legislation referred to the committee. In this case, that concerns EU legislation on maritime safety and the environment where, for example, changes to IMO conventions might create a need to review related EU legislation. 76. Report of the Maritime Safety Committee on its Fifty-ninth Session, MSC 59/33, 4 June 1991, Para 18.6, p 70. 77. Standards for Flag States, submitted by Canada, Norway, Sweden, the United Kingdom and the United States, MSC 60/11/13, 14 February 1992. 78. Flag State Compliance. Report from the Working Group, MSC/WP.13, 10 April 1992. 79. “IMO aims to get tough on rouge states”, Lloyd’s List, 31 March 1993. 80. “IMO aims to get tough on rouge states”, Lloyd’s List, 31 March 1993. 81. IMO Resolution A.739(18) and A.740(18), both dated 4 November 1993. 82. A European Maritime Industries Forum (EMIF) had been established at the initiative of the Commission as early as 1992. This was intended to foster cross-sectoral cooperation between the various sectors of the maritime industry on policy ideas and priorities which could be developed by the EU in support of the European maritime cluster as a whole. 83. See for example, Terje Halvorsen, Norsk Sjømannsforbunds historie, Bind 2 (The History of the Norwegian Seamen’s Union, Volume 2), (Oslo, Pax Forlag, 2007): 408–459. 84. “NUMAST warning of severe safety problems”, Lloyd’s List, 14 March 1993. 85. “INTERTANKO set for traffic talks”, Lloyd’s List, 21 March 1993. 86. “Class societies are rapped for secrecy”, Lloyd’s List, 1 February 1993. See also Paulsen: 203, footnote 1.

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87. See, for example, commentator Michael Gray, “Plugging the gap in ship surveys”, Lloyd’s List, 3 June 1992. 88. “LR is accused in certificate row”, Lloyds’ List, 24 November 1994. 89. A main driver behind the creation of IACS was the desire to secure a permanent—and prominent—role for its members at the IMCO/IMO table. That was achieved as early as the following year, when IACS secured consultative status with the organisation. Unlike INTERTANKO, IACS was not organised to pursue the wider interests of the classification societies outside IMCO/the IMO. 90. “LR is accused in certificate row”, Lloyds’ List, 24 November 1994. 91. Paulsen, Building Trust, 195. 92. For further details, see, for example, Philippe Boisson, Safety at Sea. Policies, Regulations and International Law (Paris: Bureau Veritas, 1999). 93. Council Directive 94/57 of 22 November 1994 on Common rules and standards for ship inspection and survey organisations and for the relative activities of marine administrations. 94. The European Commission, the Council of Ministers and the European Parliament. See also a simplified diagram over the Co-decision rules provided in Annex 1. 95. Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using community ports and sailing in the waters under jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions. 96. Council Directive 94/57, Art 7. 97. For a complete list of legislative acts adopted by 1999, see, for example, annex 1 in Ringbom, The EU Maritime Safety Policy and International Law. 98. Council Directive 96/98/EC of 20 December 1996 on marine equipment. 99. Directive 96/98 on marine equipment, article 1 and annex I. 100. Towards a new maritime strategy, COM(96) 81 final, 13 March 1996: 1. 101. A future for the Community shipping industry. Measures to improve the operating conditions of Community shipping, COM(89) 266 final, 3 August 1989. 102. By the mid-1990s, establishing second registers such as the NIS, the DIS and several British structures had become quite popular. The basic idea of these national but open registers was to combine tax and social security reliefs for shipping companies and crews with high safety and environmental standards through flag state control. The concept of a “Euros” was founded on the experiences gained with these ideas. However, applying such financial support measures would quickly run up against the Treaty’s stringent rules on state aid to businesses competing in the inter-

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nal market, and such ­exemptions would only be legal when authorised by purpose-made state aid guidelines from the Commission. 103. COM(96) 81 final: 2 and 19. 104. Jackson rose in national politics under Kinnock’s leadership of the Labour Party from 1987 to 1992. Elected an MP only in 1992, and made a minister in Tony Blair’s first government, she remained on the left wing of the party and a supporter of Labour as it had been under Kinnock’s leadership. 105. Answer to written question received by email from Roberto Salvarani, 24 February 2020. 106. Study on Competitive Advantages Obtained by some Shipowners as a Result of Non-Observance of Applicable International Rules and Standards, OECD doc OCDE/GD(96)4. 107. Commissioner Neil Kinnock, speech/97/249, IMO Assembly, London, 17 November 1997. 108. See, for example, the two submissions on flag state implementation, MSC 70/9/3 of 23 October 1998 and MSC 72/7/2 of 17 February 2000, both co-sponsored by the European Commission. 109. “Tying up a loose chain of responsibility”, Lloyd’s List, 24 November 1997. 110. “INTERTANKO positions itself firmly behind quality operators”, Lloyd’s List, 10 December 1999. 111. Commissioner Neil Kinnock, speech/98/117, Quality Shipping Conference, Lisbon, 4 June 1998: 4. 112. For a report on a quality shipping campaign offshoot in Asia, see, for example, “Brussels maritime chief shuns key conference”, Lloyd’s List, 16 March 2000. 113. According to Ringbom, close to 30 international and European industry associations had signed by the end of 1999. See also “Code of practice for Shippers”, Lloyd’s List, 4 June 1998. 114. Many other signatories have subsequently joined the MOU. 115. The internet was still in its infancy in 1997, and such access to an information site was quite a novel idea. 116. For more information, see the EQUASIS official website. 117. Ref ideas outlined by the Commission as early as in 1980 as part of the PSC proposal. See Chap. 1. 118. Anu Bradford, The Brussels Effect. How the European Union Rules the World. (New York: Oxford University Press, 2020). 119. Ketil Djønne, “EU Maritime policy: Safety and Environmental Regulation”, in HJ. Bull and H. Stemshaug eds, EC Shipping Policy: The 17th Nordic Maritime Law Conference, 2–4 September 1996 (Oslo: Juridisk Forlag 1997): 249–264. 120. For further documentation on these processes see also Tenold, The Declining Role of Western Europe

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121. Gunnar K. Sletmo, “The End of National Shipping Policy? A Historical Perspective on Shipping Policy in a Global Economy,” International Journal of Maritime Economics 3 (2001): 333–350. 122. Alan Khee-Jin Tan, Vessel-Source Marine Pollution: The Law and Politics of International Regulation, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press, 2006): 103. 123. Alan W. Cafruny, Ruling the Waves, The Political Economy of International Shipping (Berkeley: University of California Press, 1987): 230–231. 124. See, for example, MSC document 70/9/3 dated 23 October 1998 and FSI document 7/3/1 of 29 January 1999, which were both co-­sponsored by a handful EU Member States and the European Commission arguing (as a first step voluntary) for an IMO self-assessment of flag state performance (SAF). 125. Krasner, International Regimes. 126. Ref. Chap. 1.

CHAPTER 4

Erika, a Watershed in International Maritime Governance

Sinking of Erika In the early afternoon on 11 December 1999, just as the EU’s maritime safety policy seemed to have been put fully in place and found its form, the Malta-registered product carrier Erika experienced a structural failure in heavy winter weather while crossing the Bay of Biscay laden with 30,884 tonnes of heavy fuel oil. The vessel first listed heavily and then, after crew corrections through ballasting manoeuvres, broke in two. Following an unsuccessful attempt to tow the stern section further out to sea, the vessel foundered at dawn on 12 December and sank some 30 nautical miles south of the Pointe de Penmarch in Brittany. The crew was evacuated at the last minute by French coastguard helicopters, but the cargo and the vessel’s bunker fuel spilled to the sea. Despite intense monitoring by the French authorities and repeated attempts to recover some of the oil, the first slicks hit the pristine Breton coast just before Christmas. From then on, the effect was dramatic. Rough weather, where winds were blowing perpendicular to the coast at more than 100  km/h, combined with very high tides, helped to throw oil exceptionally far up on the foreshore and over cliffs more than 10 metres above sea level.1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0_4

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In France, the public and political uproar was phenomenal. This indignation grew in intensity as the oil spill approached and began to pollute the shoreline. But the alarm bells started ringing in Brussels, too. The idyllic ceasefire of the Quality Shipping campaign was abruptly challenged as the media and political storm spread rapidly to other parts of Europe. “That was it for the Quality Shipping campaign and voluntary measures,” Henrik Ringbom—then a young case handler in the maritime safety unit—recalls his superior, director Georgette Lalis, laconically commenting when they heard the news about Erika. The unfolding event, and not least the apparent confusion surrounding where the French authorities could find the people responsible and in possession of relevant information, seemed incomprehensible and shocking. Nowhere appeared to be the appropriate point of call for the coastguard and pollution prevention team. No one seemed to have all the technical and commercial information being sought. It increasingly became indisputable that Erika was exposing all the weaknesses of the international maritime regime in a big way. Presented in draft form as early as 12 January 2000, the preliminary official French accident investigation report laid everything bare to the European public. It described how the operation of Erika, as with so many other tramp ships carrying dry cargo or oil under an open registry flag, involved a large number of players entangled in a complex and opaque web. The first was the owner, who chose the numerous subcontractors and suppliers—including allocating resources for maintenance and financial management. In the case of Erika, the immediate owner was a Maltese company. But that in turn was under the control of two Liberian companies, and it had proved impossible to identify with absolute certainty the individual or legal entities which owned the capital of these. Then came the law offices providing a legal presence in the interested countries (Malta and Liberia) for the individuals or legal entities who directly or indirectly owned the vessel, and who were responsible for dealings with the flag state. A ship manager in Italy was responsible for overall technical management of the vessel, and this manager also appointed a ‘designated person’ on land. Responsible for implementing a safety management system as stipulated under the IMO’s international safety management (ISM) code, the latter was remunerated for this by the owners. The classification society—in this case Italy’s RINA—was also remunerated by the owners for providing the vessel with private contractual classification certificates in addition to certifying it on behalf of the flag state, particularly within the ISM code framework.

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Furthermore, an Indian crewing agency had been commissioned by the owners to provide—on short-term contracts—the master, other officers and crew (ratings) and to ascertain that each individual was in possession of the necessary qualifications required by the IMO’s convention on standards of training and watchkeeping (STCW). The vessel had then been chartered to a time charterer registered in the Bahamas but operating out of Switzerland. This time-charterer had chartered the vessel from the owners for an extended period and was in turn offering its services on a voyage-charter basis. As such, this was the legal person apparently responsible for the vessel or, in shipping terms, its ‘disponent owner’.2 And as if that were not complex enough, the French investigation report showed that a maritime agent located in Switzerland had been sub-contracted by the owners to be responsible for giving Erika its sailing orders as well as organising its commercial and technical calls and stopovers. A hull and machinery insurance company was insuring the owners against the total loss of their vessel, while a London P&I club, albeit registered in Bermuda, had been contracted to provide insurance, with limited liability, against any damage caused by the ship or its crew to the environment or a third party. Two freight brokers, one in Venice and the other in London, were acting on behalf of the disponent owner and the charterer respectively. And, finally, a voyage charterer—in this case French oil group Total Fina— both produced and owned the cargo which was to be sold through its subsidiaries when the ship reached its destination. It turned out that Total Fina had also had its own vetting service inspect—and accept—the vessel before it was chartered for the voyage at the most competitive market rate.3

Crucial Change of Guard at the European Commission In Brussels, meanwhile, significant changes had once again been made just after the 1999 summer holidays to personnel in the Commission’s directorate general (DG) for transport. First and foremost, a new college of commissioners had taken office in line with the established rolling five-­ year term, and Loyola de Palacio had taken over the transport job from Neil Kinnock. At the same time, the Commission portfolios had been reorganised so that energy policy and overall coordination of relations between the Commission College and the Parliament had been added to transport.4 With these wide and increasingly politicised responsibilities, and a maritime safety policy programme largely seen as completed, de

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Palacio did not intend to give further priority in her political agenda to the maritime sector.5 A Spanish national and former agriculture and fisheries minister in the Aznar government, she had no previous direct experience of the international maritime regime apart from some fisheries issues. As the Erika debacle unfolded, she therefore entered the fray fairly unprepared—but also with an open mind. Her reactions became those of an intelligent external observer. Unlike some national bureaucracies, such as in the USA, the Commission had no tradition of replacing the top civil servants when a new political leadership took office. By coincidence, however, some of the key officials in the directorate which de Palacio was now to lead had also changed.6 Most importantly, Briton Robert Coleman had ceded his place as director general—the top civil servant in the directorate—to Frenchman François Lamoureux.7 A seasoned high-ranking civil servant with experience from top positions very close to political power, in both Paris and Brussels, Lamoureux was quick to realise not only the political risks which immediately emerged in the wake of Erika, but also the opportunities offered for real political change.8 Although Lamoureux had been in post for barely 6 months, he had used that time wisely—notably by taking stock of all the policy domains he considered potentially explosive in the areas which were now the responsibility of the commissioner and himself.9 Having grown up on the Atlantic shores of France, Lamoureux already had intimate experience of the many shipping accidents which had taken their toll on seafarers, fishermen and the environment in the Bay of Biscay. While a French government official, he had even been involved in briefing the French president ahead of the Copenhagen summit in 1978.10 He therefore had also a personal commitment to what he regarded as better regulation of the oceans.11 As a result, Lamoureux—unlike de Palacio herself—had identified the maritime issues in her portfolio as latent political explosives which could blow up in the right conditions. With his French ENA-trained bureaucratic background, he was therefore already thinking along quite different lines from his British Whitehall-trained predecessor when Erika hit the seabed.12 Within a few days of Erika’s sinking, Lamoureux called in Dutchman Willem de Ruiter, his newly appointed head of the maritime safety unit. At their one-to-one meeting, de Ruiter received clear instructions. Lamoureux wanted an all-encompassing outline of legislative and other measures which might become necessary as a result of the unfolding drama. He wanted not only an assessment of how best to build on what had already

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been achieved, but also specific proposals on additional measures which might be necessary to address the remaining weaknesses revealed by Erika. The Commission’s maritime safety experts were given until after Christmas to come up with an initial plan—in other words, less than 2 weeks. A new meeting was fixed for the first working day of 2000. Finally, and before allowing de Ruiter to leave the room, Lamoureux picked up his phone, called the Council secretariat and suggested that a discussion on a package of legislative proposals concerning maritime safety should be put on the agenda for the next scheduled Transport Council meeting in March 2000.13 The build-up in the maritime safety unit’s strength over the previous decade now proved crucial. As the successor to Italian nuclear scientist Roberto Salvarani, who had driven through the maritime safety strategy since the early 1990s, engineer de Ruiter now had a handful of experienced people at his disposal. Several of them had backgrounds from national maritime administrations and the like. The large amount of groundwork done by the Commission in the form of conceiving, developing and implementing the maritime safety strategy of 1993 also meant that the organisational knowledge of the domain was strong. These preconditions, combined with Lamoureux’s firm and authoritative handling, made the ‘impossible possible’.

France Takes the Initiative in Preparing for the EU Presidency As with the aftermath of Braer, answering the question of ‘what to do now’ was not confined to the Commission alone. France, in particular, was on the offensive as the country which had once again become the victim of a tanker oil spill.14 After an announcement in early January by Prime Minister Lionel Jospin that an inter-ministerial meeting on maritime safety would be called in February, Jean-Claude Gayssot, his transport minister, added that “the practice of chartering oil tankers under convenience flags should be outlawed” and that “oil companies should immediately stop chartering vessels older than 15–20  years, ships whose past or present ownership details were unclear or whose seaworthiness could be questioned”.15 The French political leadership may have leapt a bit ahead of themselves with their proposals, but support was wide and strong this time round—even from France’s shipping industry.16 On 10 February, a government-organised roundtable meeting was held as promised in Paris with

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all relevant French maritime interests present. The transport minister took the chair in person, and a voluntary charter was signed by all participants at the end of the session. Those attending included representatives of the oil majors in France.17 Also signed by French shipowners, classification society BV and several others, the charter committed all signatories to increased transparency and more stringent survey programmes.18 The charterers agreed to pursue more restrictive chartering policies for single-­ hull tankers compared with practices permitted under the MARPOL convention. Behind this turn of events were also important changing trends in the structure of the oil industry, which were not dominated to same extent as before by the oil majors alone. A much more fragmented industry including specialised oil traders as well as small and medium-sized producers was emerging. The owners of the oil cargos were also increasingly catering to their transport needs at arm’s length. This development can be illustrated by the fact that in 1974, 40% of the world tanker fleet was owned and operated by the oil companies themselves, whereas in 1999 the figure had been reduced to 25%. Over the same period there was an even more dramatic fall in the long-term chartering commitments entered into by the oil industry. Whatever the motives, the result had been that the oil industry had detached itself from the responsibilities and economics that came with the long-term operation of a safe and efficient tanker fleet (Table 4.1). Turning the spotlight on the transport users—ultimately the oil majors where tankers were concerned—therefore caught on. The official, albeit preliminary, Erika report had already revealed what appeared to be irresponsible chartering policies by Total Fina. And the big charterers were increasingly taking action. The Oil Companies’ Maritime Forum Table 4.1  Tanker fleet affiliation to oil companies, 1974 versus 1999

Fleet controlled (owned) by oil companies Long-term charter between oil companies and shipowner Short-term charter/spot market

1974 (%)

1999 (%)

40 50

25 25

10

50

Source: Estimates by INTERTANKO as reproduced in European Commission document COM (2000) 142 final, Brussels 21.3.2000, p 17

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(OCIMF), an umbrella organisation for the oil majors’ shipping and chartering activities, informed the Commission as early as January that it would review the ship inspection report programme (SIRE), its in-house vetting system.19 Furthermore, SIRE’s database—containing inspection information on more than 4000 tankers—would be made accessible to port-statecontrol (PSC) inspectors. P F Bassøe, a major oil tanker broker, noted in its monthly report for January that “the Erika pollution catastrophe off the French coast has further highlighted the inherent public relations risk when chartering old tankers”.20 In the same vein, the broker’s spokesperson predicted that market conditions would soon expose the effects of oil majors raising the bar on the tonnage they chartered. And, indeed, Lloyd’s List reported as early as 24 March that leading tanker companies with modern tonnage—such as OMI, Teekay and Frontline—were all finding that charterers had started to shun older vessels.21 Just a couple of days before the Erika disaster, Lloyd’s List published a big interview with Westye Höegh, then the newly elected chair of INTERTANKO. The association had come a long way towards positioning itself as the voice of the quality end of the tanker industry, first by establishing measurable quality criteria for membership and, on that basis, engaging closely in dialogue with governments and other private stakeholders alike. In the interview, Höegh pointed out that “there was a natural tension between owners who had invested heavily in modern tonnage with all their new safety features, and those who retained elderly vessels”. 22 He said that INTERTANKO as an association would refrain from taking sides in that debate. It would concentrate instead on developing quality criteria and measures which could help to provide and share information efficiently on the maintenance and operation of each individual vessel. Höegh also welcomed PSC as well as the commitment of charterers and classification societies to more systematic and targeted inspection regimes.23 Because it represented the industry perceived to be at fault, took the quality debate seriously and had a well-developed public relations strategy for its time, INTERTANKO was well positioned in the debate. In fact, it had been gearing up its dialogue with decision-makers in Brussels since October 1998, when chair Richard De Moulin met commissioner Kinnock to discuss tanker safety issues on the side lines of the organisation’s first ever ‘Tanker event’ organised in the EU capital.24

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Classification Societies, the Erika Story’s Real Villain? But the bigger villain emerging from Erika was maritime classification. Although many cautioned against drawing conclusions from the disaster too swiftly, the complicity of Italian classification society RINA soon became indisputable.25 And it did not help that investigations indicated that French society BV had found severe failures on Erika years before the wreck, only to see the owner move the vessel across to RINA.26 As we have seen in the previous chapter, the classification societies were already under attack in the late 1990s. However, measures had been taken—most notably to address the class transfer issue by putting in place the transfer of class agreement (TOCA). But Erika once again raised existential questions concerning the longer-term legitimacy of maritime classification. These doubts certainly triggered new and extended scrutiny by the EU. But industry partners also came up with serious challenges. And INTERTANKO once more took the lead in responding. It was now considering setting limits on the number of classification societies members could use, Lloyd’s List was told by managing director Dagfinn Lunde. He added, “IACS members were supposed to be the 10 best classification societies in the world (Table 4.2). But the Erika disaster raised doubts on whether the quality of all IACS members [was] at the same level.”27 British tanker investor and INTERTANKO member Paul Slater took the argument one step further when he suggested a few days later that “the days of Table 4.2  List of IACS members, year 2000 Name

National affiliation

American Bureau of Shipping (ABS) Bureau Veritas (BV) China Classification Society (CCS) Det Norske Veritas (DNV) Germanischer Lloyd (GL)a Korean Register of Shipping (KR) Lloyd’s Register (LR) Nippon Kaiki Kyokai (NK) Registro Italiano Navale (RINA) Russian Register (RS)b

USA France People’s Republic of China Norway Germany Republic of Korea United Kingdom Japan Italy The Russian Federation

In 2014 GL merged with DNV and the two together became first DNVGL, then just DNV In 2023, RS is no longer a member of IACS due to western sanctions related to the war in Ukraine

a

b

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classification societies may be over”. While he acknowledged that the societies possessed huge amounts of technical knowledge, he pointed out that they had no teeth and were not answerable to the regulatory authorities. And he summed up by observing that “the classification societies need to be regulatory, they need to be government-answerable and they need to have the rights to impose rules”.28 Where IACS was concerned, the post-Erika turmoil over the role of classification followed some fairly turbulent years. As far back as 1987, four of the leading IACS members had established an early version of TOCA, effectively leaving the rest trailing behind.29 And three of the same members, the ABS, DNV and LR, created a furore in 1995 when they appeared to be planning to break away with their own ‘super IACS’.30 Yet another internal rift emerged 2 years later when the Polish Register of Shipping (PRS) had to be ‘temporarily suspended’ from IACS precisely because of quality issues related to class transfer. However, this time the threat to the entire industry seemed existential. IACS was therefore forced to take a more proactive public role. On 17 January, IACS permanent secretary Robin Bradley went public with assurances that it would not hesitate to take action over RINA should this member be found at fault over the Erika disaster.31 A month later, an extraordinary meeting of the IACS council was convened in Hamburg for what shipping weekly Fairplay described as ‘crisis talks’. Moreover, the magazine emphasised that point by devoting its entire front cover to a tweaked photomontage of Erika’s bow section being devoured by a raging sea—but with its name replaced by ‘IACS’.32 In the run-up to this crisis session, several leading IACS members—and the ABS in particular—submitted a number of fairly radical ideas for the association to debate.33 ABS chair Frank Iarossi opened his contribution to the meeting with a warning that “nothing less than a total revision of the entire class system” was now called for.34 IACS had probably never been closer to a split during its tumultuous history, but chair Hans Payer from Germanischer Lloyd managed to broker a ceasefire. Among its terms were a major upgrading of IACS rules and procedures, including a strengthened TOCA and the introduction of new ‘vertical’ audits.35 But this truce was not destined to last for long. As early as a top maritime industry gathering in June, many IACS members vented their frustration anew.36

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The Commission’s First Package of Post-­Erika Legislation As these discussions raged, the Commission was busy gathering as many facts and as much other input as possible in order to have its proposals ready for the Transport Council meeting scheduled on 23 March. It had a rough plan by early February on where it wanted to go, and a discussion document was issued to the various maritime groupings. They were also all invited to Brussels in late February to discuss the whole matter. Everyone attended and shared not only their views but also individual commitments on how to clean up their own acts. In this sense, the underlying ideas of the Quality Shipping campaign survived and were further manifested in the post-Erika phase. On 28 March, the first ‘Erika package’ of Commission proposals was submitted to the transport ministers.37 This consisted of a background paper analysing all aspects of the situation and providing an inventory of possible remedies. Three legislative proposals were annexed to the document, two of which aimed to strengthen key legislation adopted in the previous decade. Once again, the Commission revisited the directives on PSC and on recognised ship inspection and survey organisations (ROs).38 Despite being triggered by the many preceding tanker disasters in European waters, supplemented now by Erika, these two directives were general in nature and, as such, also addressed safety and quality issues on a wider scale and across the entire industry. However, the third and entirely new proposal in the package specifically targeted tanker safety. On the background of a world tanker fleet that remained on average mostly of single-hull construction, a draft regulation called for EU Member States to set a timetable for phasing out single-hull tankers which would be faster than the one envisaged by the IMO only a few years earlier (Table 4.3).39 This proposal signalled a genuinely new approach, since it departed from the previously agreed EU principle of sticking to IMO rules and focusing on joint implementation. A regional phase-out scheme in Europe would have both commercial and regulatory consequences at global level as well.40 This part of the Erika I package therefore met considerable opposition both in the trade press and from many of the interested parties.41

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Table 4.3  Proportion of double-hull tankers in world fleet as of 1 January 2000 Size segment in DWT

Total number of tankers

Double hull

% Double Hull

< 5000 5–20,000 20–80,000 80–200,000 > 200,000 Total

2249 1155 1538 975 493 6410

32 296 424 417 164 1333

1.4 25.6 27.5 42.8 33.3 20.8

Source: INTERTANKO figures as reproduced by the European Commission in document COM (2000) 142 final, Brussels 21.3.2000, p 17

However, the Commission’s proposal was not as radical a departure from the international norm as it might seem. As we have seen in the previous chapter, unilateral solutions had already been spearheaded by the USA 10 years earlier.42 At the time, when Congress rushed through OPA 90 in reaction to Exxon Valdez, this actually attracted loud protests from the European shipping nations and their maritime industries.43 The USA had thereby already unilaterally introduced an accelerated phase-out scheme for its own waters, encompassing all types of oil tankers and irrespective of flag. Following heavy US pressure, the IMO adopted two major amendments to annex I of MARPOL 73/78 in 1992 which reflected the impact of OPA 90.44 So, the Americans had in fact presented the EU with both an example and a challenge. On the one hand, OPA 90 demonstrated that big economies could go it alone if they felt they had to, and that they could do so without unsustainable market consequences.45 On the other, the USA’s unilateral action would presumably have knock-on effects and increase the likelihood that vessels perceived to pose a high risk, and thereby banned from US waters, would now turn in droves to EU waters.46 The Commission therefore made its proposal to the Council with clear reference to the US move. Responding to critics of the phase-out proposal, de Palacio argued that “the proposals are balanced, and [place] us in a position equivalent to the US. Without it less-performing ships would be concentrated in European waters”.47 However, there was one significant difference. When OPA 90 was enacted, the IMO had yet to adopt an accelerated phase-out scheme at international level. But this had been done by the time the Commission made its proposal.48

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It was to be expected, therefore, that the proposal for an accelerated phasing out of single-hull tankers became the most contested of the three proposals. However, the initial reaction of Member States at the June Council meeting was cautiously receptive. Following some additional Commission assessments of likely economic, social and legal implications for the EU economy and its hydrocarbon supplies, the Transport Council reached its conclusions on 2 October 2000. After massive engagement from not only the industry but also leading non-EU shipping nations, such as Norway and Japan, the EU ministers agreed on a common approach where—as a first step—they would try taking the IMO route.49 Member States were to argue collectively for MARPOL amendments along the lines of the Commission proposal at the IMO’s marine safety committee (MSC) as early as the following week. At the same time, the Council agreed a ‘Plan B’ as a kind of ultimatum. According to this, it undertook to adopt the rules at EU level in June 2001 should the IMO have failed to reach agreement on the essential points in the EU’s common position by then.50 And, in the end, the EU got its way. The IMO gave in and adopted further amendments to MARPOL in line with the European demands.51 The two revised directives on PSC and ROs were both adopted by the Council in December 2001.52 The Commission proposals were broadly supported without much dissent.53 Amendments to PSC included improved joint targeting criteria and mechanisms. Furthermore, a ban on entering EU ports was agreed for vessels more than 15 years old which had already been detained more than twice after undergoing PSC.  A blacklist of these vessels was to be published twice a year.

Tightening Regulation on Ship Classification When Acting as ROs One of the major and early lessons from Erika was that the classification society and RO involved had failed to deliver in accordance with expectations. At the same time, the Commission reiterated that “classification societies are key players in the maritime safety field” and indeed that “it would be difficult to imagine a shipping world without the technical expertise provided by these organisations”.54

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A key element in the Erika I package was consequently what the Commission called ‘fine-tuning’ of the RO directive. But, although the directive’s main structure remained untouched and continued to address Member States more than the ROs directly, the amendments were fairly significant when viewed from a classification society perspective. The most important was that much of what had been allocated to Member State competence under the initial directive was now to be exercised jointly with the Commission. Authority to grant EU recognition moved from the Member States to the Commission. From this flowed not only a system for centralised assessment of new candidates for recognition, but also a provision for regular bi-annual auditing of RO performance. Most importantly, this monitoring would not be limited to their performance in relation to EU-flagged vessels but applied to their entire fleets— irrespective of flag. In coordination with the committee on safe seas (COSS), the Commission’s mandate was also to be expanded with respect to withdrawal and suspension of recognition. These changes were to become fundamental for the ROs because, from then on, they were in practice subject to regulation and follow-up not only by the flag state administrations of Member States, but also by the Commission. In other words, the EU—and the Commission on its behalf—became a direct regulator of classification societies at a global level as long as the society undertook to work as an EU RO. In addition, the revised directive was to be sharpened in several ways. First, the rules developed by IACS in the 1998 TOCA agreement were incorporated in the directive and thus made mandatory by EU legislation. According to these rules, ship files should always transfer with the vessel. Furthermore, repairs required by the society being departed from had to be followed up before the vessel could be accepted by the receiving society. Common rules on liability were also to be developed. Requirements for ROs to share their data with the flag state and PSC officers were strengthened significantly. From now on, the ROs would be requested to report on all overdue surveys, recommendations, conditions of class and more. The annex to the directive was revised and toughened-up on several points, including a requirement for ROs to establish clear lines of command and responsibility between their head and regional offices. Finally, EU ROs would no longer be permitted to make use of non-exclusive surveyors and were required to establish targets and systems for monitoring their own performance.

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France Strengthens the Grip on the Post-­Erika Processes France took over the rotating presidency of the Council on 1 July 2000. As we have seen, the repeated pollution events along its coast had raised tanker safety to the top of the national political agenda on a number of occasions. However, Erika also implicated a wider set of stakeholders, including from the French private sector. The fact that French oil major Total Fina was the vessel’s charterer no doubt added to the pressure. In any event, both premier Jospin and President Jacques Chirac adopted a high profile from the start, and this time the French government did its outmost to ensure that everything possible would be done to prevent such catastrophes from happening again. And, as we have seen, in the vacuum created by the total silence of flag state Malta and classification society RINA, the French government rapidly took the initiative. The preliminary accident investigation report produced by mid-January listed several key issues which needed to be addressed. An acknowledgment that none of this could be dealt with efficiently in isolation or at national, regional or international level alone, was also helpful. Instead, a strategy was devised where measures at one level would build on those taken at another, and where the private sector would also have to be enrolled as part of the solution. In other words, the government of France seized the opportunity to set the agenda. Immediately after the vessel’s sinking, France urged the Commission to come up with specific proposals which could then be driven forward by Council and Parliament during the French presidency. The Commission responded with the Erika I package, and with that the ball had started rolling in Brussels by the time France took over from Portugal on 1 July. The attention-grabbing meeting held by the French government on 10 February 2000 resulted in a voluntary charter which, despite its lack of legal enforceability, immediately had an impact on the chartering behaviour of the oil companies and thereby on the oil tanker market itself. The charter also served as a manifesto for the priorities of the forthcoming French presidency. As such, it also inevitably served as a blueprint for the immediate work programme and priorities of the Commission. In parallel, France presented ideas to the IMO’s MEPC 45 and the IOPC fund.55 It is also noteworthy that France never allowed the Erika follow-up to be confined to a sectoral policy issue alone, and throughout the year, neither Jospin nor Chirac allowed the issue to slip from their own political

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agendas. The ultimate illustration of this came with the G8 summit of the leading world economies in Okinawa on 23 July 2000. At the suggestion of France, the issue of maritime safety regulation figured prominently on the agenda. As a result, paragraphs 69 and 70 of the Okinawa communiqué stressed the vital importance of a strengthened international maritime safety regime to protect the ‘global heritage’ of the ocean environment. Furthermore, the G8 put considerable pressure on the IMO. It explicitly endorsed the agency’s efforts to enhance safety standards and welcomed its plans to secure implementation and enforcement of adopted rules by all flag states. The G8 also gave backing to coastal states striving to enhance safety of navigation and the protection of their national marine territories. Finally, the communiqué welcomed the IMO’s efforts to pursue practical reform of current international regimes on marine pollution.56 A similar ‘manoeuvre’ had been orchestrated—most probably by the Europeans—the preceding year, when the conclusions of the seventh meeting of the UN Commission on Sustainable Development (CSD7) included an invitation to the IMO as a matter of urgency “to develop measures, in binding form where IMO members consider it appropriate, to ensure that ships of all flag States meet international rules and standards so as to give full and complete effect to UNCLOS, especially article 91 (Nationality of ships), as well as provisions of other relevant conventions. In this context, the [UN] Commission emphasizes the importance of further development of effective port State control”.57 This ‘intervention’ by another UN body helped trigger a mandate from the IMO MSC to its sub-committee on flag state implementation (FSI) for looking into these matters. However, these developments did not occur without loud protests from Liberia and a number of other IMO delegations. Together they expressed dismay at the countries which “had chosen to use CSD and other UN agencies to re-open the issue through the request to the IMO [and felt that such re-opening was undermining the IMO and] should therefore be discouraged”.58

The Commission’s Second Post-Erika Regulatory Package In December 2000, the Commission presented a second package of post-­ Erika proposals. As with the first set, this contained a mix of significant amendments to existing legislation with radically new and ambitious ideas.

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In the first category, the Commission picked up on the ‘hazmat’ directive, which 7 years earlier had put in place a mandatory EU reporting system for vessels carrying hazardous and polluting cargos.59 Building on its provisions and lessons learned since it came into force, the Commission now took the opportunity to introduce a draft directive which aimed to establish an EU control and information system for monitoring maritime traffic on a much larger scale.60 With this in place, Europe would have come a long way towards possessing a fully functional vessel traffic service (VTS) system for ship monitoring and management.61 The second proposal in the December package related to the establishment of additional financial compensation for oil spill damage in European waters. This aimed to provide an extra layer of recompense for pollution victims to supplement the international funds already available for such purposes.62 However, discussions in the Council failed to provide sufficient support for these efforts as a unilateral European approach. Instead, and in line with the G8 declaration, the ideas were once again channelled to the IMO, which ultimately found a solution to them in 2003 as a ‘supplementary fund protocol’ to the relevant IMO instruments.63

Establishing the European Maritime Safety Agency (EMSA) The third draft legislative proposal in the Erika II package was the most radical and in many ways most significant innovation.64 Calling for a regulation to establish an agency for maritime safety merely replicated an idea which had already been put forward for aviation safety, where a similar proposal was making its way towards final adoption by the Council at the time. In fact, the same December 2000 Transport Council meeting where the second Erika package was presented, witnessed agreement by ministers under a separate agenda item to give broad support to the creation of a European Aviation Safety Agency (EASA).65 But the regulatory history and background of aviation and shipping were quite dissimilar, not least in their structures. Aviation was primarily a post-1945 phenomenon characterised by strong government involvement and bilateral agreements, whereas shipping went back many hundreds of years to before the notion of the nation state, and national governments existed in their modern form. In the maritime sector, regulation was contested even at the global scale, and the establishment of a regional EU

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body interfering with Member States individually handling their national as well as international affairs would have been inconceivable only a few years earlier. However, the Council now conceded that good arguments existed for establishing EMSA and agreed that its potential duties and organisation should be further examined.66 There was more than one reason for this change of mind. First, the body of EU legislation in the maritime safety field had by now grown in both detail and scope. The task of policing Member State implementation, which under the treaty falls to the Commission, had become challenging both in expertise and staff resources. The PSC and RO directives, in particular, required careful coordination, maintenance and monitoring at EU level, and the need for specialised support with expert knowledge of the domain was felt to be pressing.67 Second, in an increasingly deregulated, competitive and globalised world, Member States were under constant pressure to rationalise and reduce national administrative budgets across all sectors. In the maritime sector specifically, national administrations were being reduced as a consequence of the flagging out of national fleets to open registers. This in turn made it attractive for Member States to pool administrative resources at ‘federal’ level and thereby regain on a collective basis some of the capabilities lost at national level. Finally, the last decade of the twentieth century and the first few years of the new millennium were characterised by a favourable political climate for integration at European level, to a degree never experienced before— nor since.68 From this perspective, Member States’ readiness to accept the establishment of a specialised agency in the maritime sector was far from unique. The opposite was rather the case. Accepting the concept of a joint safety agency must therefore also be viewed as the maritime response to what had already become a powerful trend in European integration efforts by 2000. EASA has already been mentioned, but nine similar agencies were in the pipeline at the same time. As Martijn Groenleer has pointed out, “EU agencies have become a pervasive feature of an emerging European administrative system”.69 The systemic drivers behind the wave of EU agencies as well as their constitutional, administrative bureaucratic and policy-making consequences have been extensively studied in EU research work.70 Where EMSA more specifically is concerned, Peter Langlais illustrates convincingly how this maritime agency falls into the wider pattern.71

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A general pattern, certainly, but significant differences also exist between the various agencies in terms of administrative structures and autonomy. In the case of EMSA, Langlais documents how the Member States—this time largely supported by the Parliament—succeeded in amending the initial Commission proposal so that the agency was moulded into a compromise and bridge between EU expertise and Commission power on the one hand, and the need by the Member States for national control on the other. The various EU agencies vary considerably in this respect. The most important outcome of these modifications was that Member States succeeded in ensuring that each of them acquired one representative on the agency’s administrative board. They thereby also gained control of EMSA’s budget, work programme and more.72 This form of Member State control is not necessarily found in all EU agencies.73 With these and a few more amendments, regulation 1406/2002 establishing EMSA was adopted by the Council in June 2002.74

Summing Up and Concluding Remarks, 1999–2002 To many of those involved with maritime safety regulation, the 12 months following the sinking of Erika in December 1999 felt like nothing less than a year of revolt and revolution. And so it was, in many respects. This was the year when all the established truths were seriously questioned in depth and breadth. But the revolutionary sentiments also reflected the emergence of new actors who had not previously been part of the maritime industry and its mostly internal debates. Questions were asked not only by an angry public, but also by highly capable individuals and organisations whose professional reference base was somewhere other than international shipping. At the individual level, de Palacio and her top civil servant, Lamoureux, may both serve as cases in point.75 Nevertheless, the EU’s engagement—and not the least its ability to act forcefully in a well- targeted manner—did not come out of the blue. On the contrary, this is the period when we can clearly see how the EU was able to act as quickly and in as well-directed a manner as it did because of the many years of gradually maturing policies and decision-making structures which preceded the dramatic events of December 1999 and early 2000. As such, Erika became a trigger and catalyst not only in addressing and rectifying some of the weaknesses of the international maritime regulatory regime but also for a continued and consolidated process of EU integration.

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Where the former is concerned, the revised PSC directive powerfully cemented the position of PSC as a main plank in government control of maritime safety at the expense of the more traditional European flag state approach. However, the adjustments made to the legislation affecting classification societies may have been even more radical. The revised directive adopted in late 2001 gave the EU—embodied in the Commission—direct regulatory control of the classification societies by requiring them to apply for recognition before taking on delegated authority from EU flag state administrations. The EU thereby conceived a very powerful instrument which gave it control over the quality of classification societies regardless of which jurisdiction they were established under. The criteria for EU recognition stipulated that, in order to be eligible to work as an EU RO, a classification society would have to follow the quality standards set by the EU for the vessels it certified all over the world and regardless of flag. In other words, as long as a classification society finds it attractive—or, perhaps more precisely, commercially unavoidable—to work on behalf of EU administrations, this regulatory control even extends to the entire international fleet it classifies. This makes the EU’s RO rules meet the five criteria for when Bradford foresees legislation with a ‘Brussels Effect’.76 Finally, when it came to EU integration, both directives mentioned above gave the Commission a more prominent role as a key regulatory decision-maker for the maritime sector. This was notably a consequence of more and more issues of substance becoming subject to joint national and EU competence under the committee on safe seas (COSS). The committee had been established 5 years earlier, but it was the post-Erika I legislative revision which gave it substance and teeth, with the Commission increasingly taking the lead. Erika’s sinking revealed the weaknesses not only of one particular ship but also of the entire regulatory regime. France’s investigation quickly established that the vessel had been inspected several times by classification societies, by PSC inspectors, by in-house vetting schemes at the charterers and by its master.77 Severe deficiencies in the form of corrosion were noted by several of these checks—including those conducted by the two successive masters of the vessel. However, coordination and follow-up of the various findings were poor or non-existent. Information on the condition of the ship, although available to some, was not distributed among the many stakeholders who ought to have received it. Indeed, a striking feature of the Erika accident was that port states, the flag state, the owner, the classification society and the charterer neither revealed nor had access

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to all the relevant data which were actually available. And on top of it all, the entire saga had blatantly exposed how dependent the well-functioning of the international maritime regime was on flag states taking their duties seriously. What we see here is a regime under severe strain from internal contradictions. As Oran R Young points out, such contradictions will sometimes exhibit a developmental character, deepening over time as a result of the regime’s normal operations.78 It was therefore barely a natural consequence that EU countries—and the European Commission—continued putting pressure on the international regime into the new millennium through institutional interaction—notably as sponsors of several key submissions which together served to push the demand for enhanced flag state commitment and accountability ever higher up the IMO agenda.79 As with Nahodkha off the coast of Japan a few years earlier, the Erika accident also heightened awareness among the general public and politicians of the fact that the oil type may matter more than its quantity in terms of pollution potential. The accident therefore also served to throw light on the role of charterers, their hiring principles and their policies. It became apparent that the oil majors did not trust each other’s vetting results. Even more disturbingly, it revealed the propensity of the majors, driven by price competition, to charter the cheapest vessel available for single voyages, which often involved low value but highly polluting cargoes. Higher quality criteria were habitually applied for the long-term chartering of vessels, which were often dedicated to transporting less polluting crude oil consignments. The reasons for such anomalies brought to light by Erika were often linked to commercial risk and liability considerations. In conclusion, Erika exposed a long list of deficiencies in the international maritime safety regime as well as in the quality consciousness and sense of responsibility among many maritime stakeholders—governmental as well as in the private sector. To top it all, the knee-jerk reaction of several of the interested parties was to warn the Commission precisely against ‘knee-jerk reactions’ before the causes of the accident had been properly investigated. “We do not know yet whether the cause really was structural fatigue” the chorus went.80 What many of these stakeholders did not realise was that the French government’s Erika investigation and the EU’s follow-up of this, was not primarily concerned with identifying the specific failures related to the vessel as such but aimed instead to expose to the world the failure of an entire regulatory regime.

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Notes 1. Information taken from the French accidental water pollution response agency Cedre website. 2. A ‘disponent owner’ is a shipping term which refers to a person or company which ‘displaces’ or takes the place of the legal registered owner. As pointed out by the French Erika inquiry, this is a common feature of the affreightment of vessels. 3. Report of the enquiry into the sinking of the Erika of the coast of Brittany on 12 December 1999, Permanent Commission of enquiry into accidents at sea (CPEM), pp. 9–10. 4. The directorate also changed its name from directorate general VII (DG VII) to DG TREN (directorate general transport and energy). 5. Authors interview with de Palacio cabinet member in charge of maritime affairs, Margaritis Schinas, January 2019. 6. Morten Egeberg, “The European Commission,” in European Union Politics , Michelle Cini and Nieves Pérez-Solórazano Borragán eds, 6th edition. (Oxford: Oxford University Press, 2019). 7. See for example obituary, The Guardian, 21 September 2006. 8. Author’s interview with Willem de Ruiter, October 2018. 9. Author’s interview with Willem de Ruiter, October 2018. 10. See Chap. 1. 11. Author’s interview with Willem de Ruiter, October 2018. 12. Author’s interview with Willem de Ruiter, October 2018. 13. Author’s interview with Willem de Ruiter, October 2018. 14. The west coast of France had been the scene of numerous highly polluting tanker wrecks over time, including Torrey Canyon and Amoco Cadiz. 15. “Gayssot in call for FOC tanker ban”, Lloyd’s List , 18 January 2000. 16. “Owners call on Government to back Gayssot proposals”, Lloyd’s List , 20 January 2000. 17. The charter was signed by Total Fina, Elf Aquitaine, BP Amoco France, Royal Dutch Shell France and Esso France 18. “France Takes Steps Towards Safer Ships”, MarineLink , 11 February 2000. 19. SIRE was established in 1993 as one of the many consequences of the Braer incident. Under the scheme, the oil company members of the OCIMF inspect tankers on the basis of an extensive checklist, and findings are made available to all OCIMF members through SIRE’s SIRENAC database. 20. “Erika disaster may put squeeze on older tankers”, Lloyd’s List , 3 February 2000. 21. “Tanker owners go from despondent to exultant”, Lloyd’s List , 24 March 2000.

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22. “INTERTANKO position itself clearly behind quality operators”, Lloyd’s List , 10 December 1999. 23. “INTERTANKO position itself clearly behind quality operators”. 24. Author’s private notes. See also INTERTANKO’s website on the organisation’s history. 25. “Erika suffered from severe corrosion”, Lloyd’s List , 12 January 2000, “Crew saw Erika deck crack”, Lloyd’s List , 13 January 2000, and “Paolo Clerichi defends technical skills of scapegoat RINA”, Lloyd’s List , 26 January 2000. 26. “French classification society dismisses allegations”, Lloyd’s List, 12 January 2000. 27. “INTERTANKO threat to shun classification societies”, Lloyds List, 14 January 2000. 28. “Slater says days of class may be over”, Lloyds List, 25 January 2000. 29. Gard Paulsen et  al., Building Trust: The History of DNV 1864–2014 (Lysaker: Dinamo forlag, 2014): 240. 30. Paulsen: 346. 31. “IACS ready to take action over the Erika”, Lloyds List, 17 January 2000. 32. Fairplay, February 3, 2000. 33. “ABS boss to unveil scrutiny proposals”, Lloyd’s List, 7 February 2000. 34. “IACS holds together on reforms”, Lloyd’s List, 18 February 2000. 35. “IACS holds together on reforms”. 36. “Class hangs its dirty washing out in public”, Lloyd’s List, 23 June 2000. 37. Com (2000) 142 final, later known as the Erika I package. 38. Council directive 95/21/EC on PSC, and directive 94/57/EC on common rules for ship inspection and survey organisations. 39. An oil tanker described as single hull has been constructed so that the cargo tanks are separated from the sea by only bottom and side hull plates. Following revisions to the MARPOL convention in 1992, oil tankers built from 1996 are required to have an extra layer or double hull. Since the normal operating life of a tanker is plus/minus 25 years, single-hull tankers from before 1996 would continue to trade worldwide until 2026. 40. “Brussels risks tanker shortfall”, Lloyd’s List, 3 March 2000. 41. “Brussels prepares for EurOPA”, Lloyds List, 24 February 2000. 42. https://www.epa.gov/laws-­regulations/summary-­oil-­pollution-­act 43. Following the adoption of OPA 90, 13 EU Member States together with Norway and a couple of other states and the Commission protested in a joint diplomatic note verbal, where the USA was urged in part “to pursue a regulatory regime, on a national basis, which is consistent with agreed international standards”. 44. Regulation 13F required all new oil tankers of 5000 DWT and above built since 1996 to be fitted with double hulls. It also provided for ­alternative

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methods of design and construction if these resulted in a similar level of protection. MARPOL regulation 13G was amended to address existing crude oil tankers of more than 20,000 DWT and product carriers of more than 30,000 DWT. These existing single-hull tankers were to be phased out in accordance with a timetable running to 2026. The Commission proposal would effectively bring forward the final date by 16  years, to 2010. For more details, see Tan, Vessel-Source Marine Pollution: 139–147. 45. In 1990, the USA and the EU were the two most important hydrocarbon-­ importing markets. This meant that they had both the political and market clout to enact these changes unilaterally. 46. See, for example, the arguments made in “Would Erika have gone to the US?”, Lloyd’s List, 14 February 2000. 47. “De Palacio defends Erika initiatives”, Lloyd’s List, 3 March 2000. 48. For an interesting discussion on how European actions post-Erika were influenced by the USA and OPA 90, see Iliana Christodoulou-Varotsi, Maritime Safety Law and Policies of the European Union and the United States of America: Antagonism or Synergy? (Berlin: Springer, 2008). 49. See, for example, “Single hull plan runs into flak”, Lloyd’s List, 4 March 2000, and “Norway critical of Brussels proposals”, Lloyd’s List, 5 April 2000. 50. See Council docs no 9547/00 (Press224), no 11711/00 (Press 347) and no 14004/00 (Press 470). 51. For more details on these processes, see, for example, Tan, Vessel-Source Marine Pollution: 147–150. 52. Directive 2001/106 on PSC, and directive 2001/105 on ship survey organisations. 53. 2279th Council meeting on transport, Luxembourg, 26 June 2000, Conseil/00/24 p IV. 54. COM (2000)142 final, of 21.03.1999: 23. 55. MEPC 45, Agenda item 7, Doc MEPC 45/7/7, 28 July 2000. 56. G8 Communiqué Okinawa 2000, Okinawa 23 July 2000. 57. Commission on Sustainable Development 7th session report, p  19, UN New York, 1999. 58. Report of MSC from its seventy-third session, Document MSC 73/21, 12 December 2000, pp. 57–58. 59. Council directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods. 60. COM (2000) 802 final of 6 December 2000, and more specifically proposal 2000/0325 (COD).

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61. Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council directive 93/75/EEC. 62. COM (2000) 802 final of 6 December 2000, proposal for a regulation “on the establishment of a fund for compensation of oil pollution damage in European waters and related measures”, ref. 2000/0326 (COD). 63. The proposals for changes to the international convention on the establishment of an international fund for compensation for oil pollution damage were eventually raised with the IMO through a submission to the MEPC signed by Belgium, France and Germany and supported by the rest of the EU Member States. 64. Proposal for a regulation of the Parliament and the Council establishing a European Maritime Safety Agency, COM (2000) 802 final, (2991/C 120 E/06). 65. Council doc no 14004/00 (Press 470). 66. 2340th Council meeting, transport/telecommunications, Luxembourg, 4–5 April 7587/01 (Presse 131 G): 14. 67. “Maintenance” in order to keep the rules up-to-date and in line with international rule developments, for example in the IMO. 68. David Phinnemore, “The European Union. Estabishment and Development,” in European Union Politics, Michelle Cini and Nieves Pérez-­Solórazano Borragán, eds, 6th edition (Oxford: Oxford University Press, 2019). 69. Martijn Groenleer, The Autonomy of European Union Agencies: A Comparative Study of Institutional Development (Delft, Netherlands: Eburon Academic Publishers, 2009): 15. 70. Morten Egeberg and Jarle Trondal, “Researching European Union Agencies: What Have We Learnt (and Where Do We Go from Here)?,” JCMS: Journal of Common Market Studies 55, no. 4 (2017): 675–690. 71. Peter Langlais, Sécurité maritime et intégration européenne (Bruxelles: Bruylant, 2018): 532–591. 72. The Commission’s initial proposal was for four Commission representatives and four from Member States. See also Langlais: 540–553. 73. Groenleer, Kaeding & Versluis, “Regulatory Governance through Agencies of the European Union? The Role of the European Agencies for Maritime and Aviation Safety in the Implementation of European Transport Legislation,” Journal of European Public Policy 17, no. 8 December (2010). 74. Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency. 75. See “Brussels Erika backlash shapes up”, Lloyd’s List, 29 February 2000. Ref also author’s interviews with Margaritis Schinas, January 2019, and Willem de Ruiter, October 2018.

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76. Anu Bradford, The Brussels Effect. How the European Union Rules the World. (New York: Oxford University Press, 2020): 25–65. 77. “Erika suffered severe corrosion”, Lloyd’s List, 12 January 2000. 78. Oran R.  Young, “Regime Dynamics: The Rise and Fall of International Regimes,” in International Regimes, Stephen R. Krasner ed., (Ithaca, N.Y: Cornell University Press, 1983): 107. 79. See, for example, MSC documents 72/7/2 and 73/8/3 dated 17 February and 22 September 2000 respectively, as well as FSI document 11/7 dated 3 January 2003, all of which form part of a wide and sustained push towards the future adoption of some form of binding IMO instrument on flag state implementation. All documents at Webaccounts.imo.org 80. “Ask the technicians before bringing in more vessel legislation”, Lloyd’s List, 15 March 2000.

CHAPTER 5

Prestige and Near Breakdown of the Safety Regime

No Place of Refuge and a Ship Master Made to Blame The Bahamas-registered oil tanker Prestige ran into serious difficulties in stormy weather off Spain’s Galician coast in the early evening of 13 November 2002. With the master reporting structural damage in the 26-year-old vessel’s starboard ballast tanks, oil cargo quickly started leaking from cracks in the bottom of its hull. A major oil spill was once again about to unfold on Europe’s doorstep. Rescue operations were promptly implemented by Spain’s maritime authorities, and the crew were safely evacuated with the exception of the Greek master, Apostolos Mangouras, and a few others who remained aboard in an attempt to save the ship. The following day, 14 November, in strong winds and heavy waves, the stricken tanker found itself heavily battered only a few miles off Cabo Toriana on the Spanish coast. Despite various requests from the Prestige’s master, the ABS as the vessel’s classification society and the contracted Dutch salvage operator, the Spanish authorities refused to provide the tanker with a refuge closer to shore where its cargo could have been safely unloaded.1 As a matter of fact, the question of whether to tow the vessel into a safe haven—with the imminent risk of coastal pollution—or to order it as far out to sea as possible

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quickly became an urgent and highly disputed issue in the top echelon of Spanish politics.2 This high-profile row complicated matters significantly for transport commissioner Loyola de Palacio in the initial phase. She had herself been a member of the sitting Aznar government only a couple of years earlier and her sister, Ana de Palacio, was now its foreign minister.3 The immediate outcome was that the Spanish minister in charge required the master to assist the salvage operator towing the ship away from the Spanish coast to the open sea and tackle possible pollution there. On 18 November, five days after the first distress signals were sent by Captain Mangouras, the navy of neighbouring Portugal also intervened and prohibited the salvage company from continuing to tow Prestige in the direction of the Portuguese exclusive economic zone, which extended 200 nautical miles from its coast. This interference by the Portuguese, driven by the same fears which motivated the Spanish government, forced a change of route towards the high seas and even rougher conditions. On 19 November, therefore, after having been towed around in severe weather for almost a week, Prestige finally broke in two and sank in 3500 metres of water about 130 nautical miles off the Galician coast. The remaining crew were saved at the last moment. However, the ordeal did not end there for Captain Mangouras. Having pleaded for and consistently argued in favour of a tow to a safe haven at shore, he found himself in a deep conflict with the Spanish authorities from day one. He became one of many scapegoats and was immediately arrested by the Spanish police and jailed upon landing.4 His destiny thereby became a major post-Prestige issue in Brussels but also elsewhere, and led in its own right to some very lengthy judicial and political processes.5 The way Prestige was redirected and denied a safe haven by both Spain and Portugal brought another high-profile dimension in the maritime safety debates to the fore in Europe, namely the question of allowing vessels in distress access to a place of refuge.6 This issue had already figured on the IMO agenda for some years, but so far without much progress being made.7 In many other aspects, however, this new drama seemed to be Erika all over again—an old, single-hull tanker registered under a flag of convenience and carrying the most polluting type of oil cargo.8 Once again, claims were made about lax port state control (PSC), this time specifically in Greece and Gibraltar, which led the Commission to request further

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information from both Athens and London.9 In sum, Prestige not only brought with it new issues for the EU agenda but also underlined and reinforced the importance of the many EU initiatives and legislation already adopted by then. Nevertheless, the conditions surrounding Prestige also differed in important ways. Unlike RINA after Erika, the ABS put itself forward from the start to assist salvors and others with its knowledge and expertise. This is not to say that the role of classification escaped being questioned, but at least this time the ABS was there to answer. That helped to head off the most immediate attacks on the role of classification and ROs which had been experienced so prominently in the wake of Erika. This was further assisted by the fact that IACS initiated an audit of member ABS and of its Prestige files as early as 9 December, with officials from the Bahamas flag state administration, the IMO, the Commission and Spain all invited to take part as observers.10 The audit was conducted under the association’s novel internal quality control scheme. Equally, the flag state authority and the Greek management company behind Prestige both stepped forward, although this did not entirely fend off renewed calls for a ban on open-­ registry tankers.11

The Legitimacy of UNCLOS in Question Ten days after the wreck of Prestige, French president Chirac and Spain’s prime minister Aznar met in Malaga to discuss the matter. “Today we have decided that enough is enough,” President Chirac said at a joint press conference after the meeting.12 Together, the two leaders announced that they had agreed to invoke article 56 of the UNCLOS, which gives signatory states the right to take measures “in self-defence” for “ the protection and preservation of the marine environment”.13 Under new national rules, which they hoped other EU Member States would also replicate, tankers older than 15  years carrying heavily polluting cargoes would not be allowed to pass through the 200-mile economic zone of the participating countries. The following week, the French and Spanish navies began enforcing the new order by escorting vessels out from their respective economic zones.14 Formalised in the Malaga agreement, the French, Spanish, and Portuguese initiative was soon also joined by Italy. But no other Member State followed thereafter. The action taken by the three, which several

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experts described as amounting to a ban on perfectly legal vessels exercising their right of innocent passage, created a very heated debate. Dr. Jaap Molenaar of the Dutch Law of the Sea Institute, for example, was of the opinion that the measure was “almost certainly inconsistent” with the UNCLOS.15 However, as Verona Frank, a research associate at the same institute, also conceded in an article published three years later, the limited control over foreign ships in transit under the UNCLOS appeared to many people to conflict with the general duties of all states to protect and preserve the marine environment, to prevent maritime accidents, and to take all necessary measures to minimise pollution from vessels to the fullest possible extent.16 Barely three weeks after the wreck, and with the Transport Council scheduled to meet on 5–6 December, the Commission issued yet another maritime communication. This not only suggested speedier handling of the remaining Erika I and Erika II proposals, but also presented ideas for three new proposals which addressed ship-source pollution more specifically. These encompassed a regulation prohibiting the carriage of heavy fuel oil (as opposed to less polluting oil cargoes) in single-hull tankers to and from EU ports, yet another push to speed up further the phase-out timetables which had painstakingly been agreed by the IMO following Erika only months earlier, and a proposal for penal sanctions against maritime polluters in European waters. Following up the actions already taken by the southern Member States, the Commission also discussed the weighting of flag state versus coastal state interests in the UNCLOS and concluded: The balance between maritime and environmental interests as laid down in the United Nations Convention on the Law of the Sea, notably Articles 211 and 220 thereof, which were developed in the late 1970s, leans heavily in favour of the maritime interests. This bias towards the freedom of navigation, at the expense of environmental protection, does not reflect the attitudes of today’s society, nor those of the Commission.17

Although the Commission stopped short of suggesting a renegotiation of the UNCLOS, it called on the Council “for coordinated action by the EU Member States to analyse and address various ways to take measures to protect their coastal waters, including the territorial sea and the exclusive economic zone, from ships which represent a threat to the marine environment”.18

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In the wake of the Prestige accident, therefore, both Commission and Parliament—although in different words—called for the UNCLOS provisions to be revisited.

Urgency in EU Council of Ministers The EU’s Transport Council meeting a few weeks later unanimously adopted conclusions which reiterated ministerial support for the legislative measures already in the pipeline.19 On several points, the Council conclusions even went beyond the Commission’s suggestions. Notably, the Council encouraged the Commission as a matter of urgency to present a proposal once more for accelerated phasing-out of single-hull tankers. The Commission was also invited to consider how the condition assessment scheme (CAS) for oil tankers, already incorporated in MARPOL, could be amended to become applicable to all tankers more than 15  years old, regardless of design.20 And once again, the Council chose to put extra pressure on the international community by lashing itself to the mast with a commitment to adopt such measures on a regional basis should the IMO fail to act. This time round the deadline was set to 1 July 2003. It is quite remarkable how Member States—very much supported by the Parliament— pressed forward with a joint approach in the wake of Prestige. As Henrik Ringbom notes, “In contrast to [the] ‘normal’ way of proceeding within the EU, the legislative agenda in the aftermath of the Prestige was largely set by the Council, i.e. the Member States.”21 Three days after the Transport Council meeting, EU environment ministers gathered in support of their transport colleagues. Their official meeting conclusions made it completely clear how far Member States were now bridging the EU’s policies on safe seas with its wider goals for protecting environment and biodiversity in the world’s oceans.22 And then, to top it off, the Council summit meeting in Copenhagen a few days later sealed it all with full support from the EU’s heads of states and governments.23 Another factor which further contributed to the sense of urgency came with the spectacular collision between medium-sized container vessel Kariba—French-operated but Bahamas-registered—and Norwegian car carrier Tricolor in the English Channel the day after the Copenhagen summit. The two vessels collided in dense fog and, whilst Kariba was able to reach port, Tricolor capsized within hours and ended on the seabed with its immense starboard hull poking like an artificial steel island a few centimetres above sea level in one of the world’s busiest sea lanes. It remained

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there for months while its cargo of luxury cars was removed, and the hull was cut into pieces and lifted away—bit by bit. Meanwhile, to add insult to injury, Tricolor was accidentally hit twice more by other vessels trafficking these crowded waters before its wreckage could be entirely removed. No wonder that these events took on almost farce-like aspects in the heated shipping policy discussions that were already taking place, something which was also reflected in a number of satirical cartoons surfacing in leading newspapers around the continent. The frightening speed with which the 1987-built Ro-Ro carrier capsized and sank also highlighted to everyone the very unsatisfactory stability requirements which prevailed at the time of its construction.24 Against the backdrop of all these developments, an emboldened transport commissioner de Palacio grabbed international attention a month later by sending a letter to a number of governments around the world. This stressed the need for radical change in the way international maritime regulation balanced between various interests. 25 She called in particular for international support for the many initiatives at the IMO and other international fora from the Commission and EU Member States, which all aimed at better accommodation of international rules to meet the requirements of maritime safety in the twenty-first century. In a separate parallel letter to IMO secretary general William O’Neil, she reiterated many of the same arguments. In that missive, however, she also shared some appreciation for O’Neil’s achievements and welcomed the IMO’s intention to arrive at a flag state code and auditing system aiming at a rapid and positive result.26 Meanwhile, the entry into force of the regulation establishing EMSA, which had been adopted in June 2002, was brought forward and a first meeting of the rapidly composed EMSA administrative board could therefore take place as early as on 4 December.27 And Commission maritime safety veteran Willem de Ruiter was appointed its first executive director in the following month.28

More Scrutiny of Classification Societies The post-Erika amended directive regulating the EU’s ROs had been adopted by the Council in December 2001.29 Unlike the position following Erika, as we have seen, the role of maritime classification did not immediately occupy centre stage in the wake of Prestige. Nevertheless, questions related to technical rules, adequate inspection, and the value of the ensuing certificates again became central to the scrutiny process.

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Particular attention was paid to the extensive repairs which Prestige had undergone earlier and the quality of the ABS follow-up in that respect.30 Meanwhile, the Commission did not suggest any further revision to the RO directive in its post-Prestige communication. However, it did not refrain from throwing down yet another gauntlet to the classification societies. Under the heading “Closer monitoring of the performance of classification societies”, where the main message was that the Commission would implement the revised directive “very strictly”, the final paragraph reads as follows: Finally, another point which must be looked into is the practice where classification societies issue seaworthiness certificates for vessels on a commercial basis, on behalf of the shipowner, and also by delegation, on behalf of the flag state which is supposed to monitor the vessel. As a result, the classification society sometimes seems to be judging its own case. The first objective should be to examine, together with the classification societies already recognised at Community level, how to change these practices and keep these different checks more separate.31

With these few lines, the Commission opened a whole new front in its challenge to the classification societies, and one that would define much of its dialogue and relationship with them for years to come. A few months earlier, in May 2002, internal conflicts in IACS had once again emerged when it appeared that the “LAN group” consisting of LR, ABS, and DNV, had been soliciting the views of several industry experts over new technical standards for tankers. This move was seen by many as yet another attempt by the trio to create a technical cooperation body outside the IACS structure which would exclude the other members. Such a scenario seemed to fit well into a long history of conflict between societies over whether a case existed for better separation between an A and a B league in the maritime classification world. In September, the conflict exploded into the open following an industry meeting in Hong Kong where the oil majors, through their joint body, OCIMF, expressed broad backing for the LAN group. In IACS, however, this initiative was met with loathing as both Bernard Anne of prominent French IACS member Bureau Veritas and his counterpart at Germanischer Lloyd demonstrated by letting off steam in the trade press.32 How far the foundations of maritime classification as a business were being shaken during these years can be further illustrated by the proposal submitted to the IMO from Greece and the Bahamas supported by IACS

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just after the Prestige. Prepared ahead of the accident itself, these two prominent flag states suggested in a paper to the IMO Council in December that part of the work done by classification societies, particularly related to the development of newbuilding standards, should be taken over instead by governments through the IMO.33 Interestingly, that was exactly the sort of alternative which the Commission had assessed 10 years earlier, concluding that doing this would be both difficult and inefficient for governments.34 In the end, the Bahamian and Greek proposals failed to garner sufficient support. But the same two countries, once again in alliance with IACS, were later spurred to make an alternative IMO proposal this time to the IMO Council, which ultimately led the organisation to opt for developing “goal-based standards” in the future to replace the more detailed compliance-focused regulations of the past.35 This proposal received the necessary support to secure its passage, and it gradually changed the way the IMO worked quite fundamentally—with implications also for the development of classification rules.36 In the meantime, the findings of the unprecedented public audit of the ABS initiated in the wake of Prestige were made public on the IACS website in February 2003. Attention focused on the fact that the ABS had refrained from checking Prestige’s ballast tanks during the vessel’s last annual survey, and on why that was. The ABS insisted that it had done everything according to its own rules and those of IACS, but several questions were left open to speculation, including whether a more thorough inspection of those ballast tanks would have made any difference anyway. Again, the ABS insisted that such expanded inspection would not have altered Prestige’s destiny. Others, including leading shipping experts, were more doubtful. So were the Spanish authorities, who were by now actively preparing for litigation against the ABS.37

International Shipping Community ‘On the Carpet’ in EU Parliament The role of classification societies and ROs also became a primary focus of attention when the Parliament’s transport committee (RETT) decided to conduct a two-day public hearing on improving maritime safety in response to the Prestige accident.38 Held on 19–20 March 2003, this programme included verdicts from almost all industry stakeholders as well as featuring opening statements by Belgian MEP Dirk Sterckx, the chair of the hearing, commissioner de

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Palacio, Spanish officials and representatives of the Irish government which held the Council presidency in the first half of 2003.39 The packed schedule also included several representatives from environmental NGOs and a few academic experts. In her opening statement, and after having assured the MEPs of her strong commitment to working with them, de Palacio struck a rather upbeat note with regard to past achievements of the Commission and the Parliament. “As you know, after decades of inaction when some considered that the best approach to Community policy on maritime safety was no policy at all, we have succeeded in turning this policy into tangible results”, she said.40 However, that opening salvo, which was also probably intended to scare the international shipping audience present, was followed by a more sober run-through of the Commission’s post-Prestige proposals as they had been presented to the Council in the previous December. And de Palacio emphasised how determined she was “to obtain rapid results within the IMO on a series of crucial dossiers, such as raising the compensation limit to 1000 million euros, flag audits, ports of refuge, and the responsibilities of the insurance companies and the classification societies.”41 The first to speak after the opening statements by officials was Robert D Somerville, the newly appointed ABS chair and CEO. He delivered a very down-to-earth and sober presentation on the ABS, its history, purpose, and values.42 Now in the sights of the Spanish government’s USD 700 million negligence suit, the ABS had no choice but to adopt a rather cautious approach at the hearing. The more substantial input from the classification side, therefore, came a bit later in the programme with the intervention from Richard Leslie, the IACS permanent secretary. His oral presentation was supported by a detailed written hearing document submitted in parallel to the decision-­ makers in the Parliament, the Council, and the Commission. As will be recalled, the Commission had refrained from making entirely new proposals concerning classification societies as part of its Prestige follow-up. But it had promised closer monitoring of their performance and had signalled its intention of applying strict oversight when implementing the revised RO directive adopted in 2001. IACS had attended a meeting on the subject with Member States and the Commission a couple of weeks earlier, and its written input merely repeated the views expressed verbally at that time. Taking the 2001 directive as its reference, the association sought to document point by point how its members were already busy

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incorporating the requirements in their respective rules and procedures. IACS welcomed the establishment of EMSA and the consequent prospect of ROs becoming subject to uniform EMSA audits at a European level rather than to individual scrutiny by Member States, which were not always well coordinated. For IACS, however, the most important issue at the hearing was to flag its concerns over the only genuinely new issue introduced by the Commission in its post-Prestige communication, namely the request for a more formal separation between classification and RO work. Based on the historical evolution of the interface between private classification and statutory rules, the association made it quite clear that keeping apart the two sets of rules would neither be possible nor desirable.43 Input from the wide and thorough public hearings eventually led to the Parliament’s most comprehensive and well-researched resolution on safety at sea up to that time. In addition to a substantial preamble, it contained no less than 79 specific recommendations. These were grouped in accordance with proposals at European level versus global level, as well as on economic, environmental, and social aspects. In addition, one section was dedicated to safety in the EU fishing fleet.44 Although several of the recommendations touched on issues of great relevance to classification, such as the many points related to double versus single hulls, only two addressed the societies directly. Most importantly, the Parliament pleaded for the development of recognition criteria at an international IMO level as well along lines of those already adopted at EU level.

EU Versus the IMO The post-Erika years, and then Prestige and its aftermath, brought the EU’s offensive on maritime safety to new levels. Not only did Europe extend its own legislation in the domain, but now it was also dominating IMO discussion. Veronica Frank, in her study of the impact of Prestige on international maritime law, found that in the years immediately following the wreck, “the large majority of the proposals submitted to the IMO are presented by EU members”.45 It was nothing new, of course, that the Europeans were amongst the most active in the IMO, but uneasiness was now growing amongst other members on what was seen as a trend towards increased European coordination. That was particularly the case in Asia where, after all, maritime interest had become increasingly concentrated over preceding decades.46 But anger at the new-won European

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self-confidence was also mounting among petroleum-producing (and therefore transport-using) states in Latin America.47 At the same time, tension was again mounting over the role of flag states in general, and open registers in particular.48 While Spain appealed to the IMO for a crackdown on flag states, Malta on the other hand criticised the organisation for failing to provide firm support in its “battle” with the Spanish and French refusal to allow single-hull tankers under the Maltese flag to transit their 200-mile zones.49 Another contentious issue which attracted increased attention concerned a widespread culture of neglecting accident investigations. According to the international rules, a flag state has an obligation to investigate accidents involving vessels under its flag. However, a serious failure to comply with this rule was common. As the head of classification and flag state affairs at IACS member Germanischer Lloyd put it, “only [a] few flag states comply, and reports are often late, superficial and useless. Accident investigation reports that are often produced years after the accident will not have a beneficial effect”.50 Put briefly, the EU seemed to be gaining the upper hand on maritime safety regulation. Member States were engaged as never before and fears were also felt amongst the IMO’s staunchest defenders that the UN organisation could not withstand the mounting pressure. Paul Slater, the outspoken INTERTANKO member, once again played devil’s advocate by calling the IMO a “bureaucratic elephant”. Meanwhile, in Lloyd’s List, secretary general O’Neil felt the need to contribute a half-page article defending the IMO’s merits and specific achievements.51 Not all this criticism of and inquiry into the workings of the international regime was entirely fair. Whilst the EU’s actions were primarily triggered by tanker accidents and oil spills, the IMO’s primary attention was directed towards the deplorable safety conditions which reigned in the dry-bulk sector.52 The sad fact was that hundreds of seafarers lost their lives each year in this segment of the shipping industry, where vessels were subject to much more physical strain—notably through loading and unloading of rough and heavy cargo. Human casualties were far higher than in the tanker sector and many dry-bulk ships and crews simply vanished without trace. Meanwhile, the Commission had come little by little to realise that the IMO was a necessary partner for Europe to succeed in its efforts. Given the considerable transfer of competence from Member State to EU level which had accumulated, first with the 1993 maritime safety strategy, then

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through Erika I and II, and now with EMSA on the way, it was only natural for the Commission to move on to the next step. In April 2002, therefore, it presented a request to the Council for a mandate to negotiate with the IMO over terms and conditions for the EU itself to become a member.53 The Commission needed a formal mandate from the Council to pursue such a route but, using the WTO and the EU’s collective external trade policy as an example, it argued that the body of community law in the maritime field had now become so extensive that the time had come to speak with one voice. As the Commission saw it, formal membership of the IMO would allow the EU to maximise its influence, notably through formalised co-drafting and presentation of joint EU-IMO positions. Together with a right to speak and vote as a block in IMO proceedings, it was argued that this would enhance the EU’s overall impact on global maritime regulation.54 In contrast to enthusiastic support from the Parliament, the proposal did not fall on fertile ground in the Council. Denmark, which had once again assumed the Council presidency at a crucial time in the saga of EU shipping policy developments, simply disregarded the proposal during its presidency in the autumn of 2002. In addition, Greece, which took over from Denmark in January 2003, also left it off the agenda.55 For the Greeks, assuming the presidency at this critical time offered an opportunity to steer the post-Erika and Prestige discussions more firmly back onto an IMO track. This window of opportunity had also been acknowledged by O’Neil, who visited Athens just after the Greeks took over. Also attended by O’Neil’s deputy and Greek national Efthymios (Thimio) Mitropoulos, these talks aimed to find a way of championing the IMO’s cause in Brussels.56 After the meeting, a spokesperson for Georgios Anomeritis, Greece’s mercantile marine minster and president of the EU’s Transport Council, said, “we want action on safety, but preferably this should be done through the IMO”. But the same official added, “it is a delicate situation, which [has] become very high profile politically and Ms. de Palacio’s role will be very important. Mr. Anomeritis will have to walk a tightrope”.57 For his part, O’Neil promised that proposals from the EU to the IMO would be treated as expeditiously as possible. In any event, only a few weeks passed after the Athens meeting before the IMO secretary general called on de Palacio in Brussels. His Greek deputy again accompanied him. Renowned for his diplomatic skills, Mitropoulos may have contributed to the fact that the “wide ranging talks intended to smooth ruffled feathers on both sides over who drives

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maritime safety regulation at global level” ended on a positive note.58 Judging by the joint communiqué issued after the meeting, a delicate balance had been struck between a recognition of the IMO’s role in maritime regulation on the one hand and an acceptance of the Commission’s growing regional influence in the field on the other. The role of classification societies was not discussed in any detail at the meeting, but the many issues where agreement was reached included the urgent need to achieve substantial progress on flag state auditing, not only through European legislation but also as part of the international regime.59 De Palacio and O’Neil were very different characters and, in many ways, operated with completely opposing world views. Although she accepted a role for the IMO as an element in a more forceful EU maritime safety policy, de Palacio—in addition to her political mindset—started out with a very sceptical view of the entire maritime world and its regulatory regime. According to Margaritis Schinas, her cabinet member, close adviser and de facto deputy at the time, the commissioner was flabbergasted by what she saw when Erika compelled her to engage. She felt that the maritime regulatory world was both incestuous—everybody knew everybody else, and they all sat around the same tables everywhere—and that the entire regulatory regime was far too London-focused. She sometimes referred the maritime cluster as “the Londoners”.60 O’Neil, on the other hand, was a Canadian coastguard officer with a firm belief in and commitment to keeping the IMO out of “politics”. He was more of a technocrat who had scant understanding of—and patience for—the politicised compromise-making machinery in Brussels.61 Nevertheless, the truce between these two officials held and, by December, the Council had directed its proposals on tanker safety—including requests for yet another accelerated phase-out scheme—to the IMO.  And once again, the IMO demonstrated an ability to reach out to Europe with a compromise, despite loud expressions of discontent in many circles.62 The fact that the G8 summit that June in Evian, France, was accompanied by such forceful commitments to an IMO solution probably also helped to forge this far-from-obvious compromise.63 O’Neil’s term as IMO secretary general ended in December 2003, after 14 years in office. His deputy, Mitropoulos, was elected by the assembly to take over. The Greek, who “had a reputation for conjuring compromise out of the most unpromising raw material”, placed the need for preserving unity in the organisation firmly at the top of his priorities.64 This task had become fairly urgent since, as Lloyd’s List also noted, “there is no ideal

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time to take over such a job, but it is fair to suggest that the new secretary general is assuming his important role at a crucial, and some would say critical, time for the organisation”.65 One of the priorities for Mitropoulos in his new capacity was therefore to meet de Palacio as his opposite number in Brussels.66 They met in a constructive atmosphere, with the embryonic IMO voluntary flag state auditing scheme once again as a centre of attention. Both sides agreed to “ensure a maximum degree of cooperation in the pursuit of the two organisations’ common goals”.67

IMO’s Secretary General’s in Pivotal EU Parliament Meeting It will be recalled that, following its post-Prestige public hearings in early 2003, the Parliament adopted a resolution encompassing a very comprehensive list of recommendations to the Commission, the Council, and the wider maritime community—including the IMO. But the resolution also contained a recommendation to the Parliament itself. Having heard the opinions of many interested parties, it saw a need to delve even deeper and therefore called on its presidency to establish a temporary committee on improving safety at sea, an option provided for in article 150(2) of the Parliament’s rules of procedure.68 The Parliament’s presidency reacted positively to the request and the “Mare committee” was established in November 2003 with a six-month mandate. Such temporary bodies in the Parliament have so far been few in number. Since the first was established in 1957, only 18 more have followed.69 This provides an indication of how politically important the Parliament judged maritime safety to be at the time. The committee—again chaired by Belgian MEP Dirk Sterckx, who by now had become the Parliament’s most prominent voice on maritime affairs—conducted extensive work in the months which followed. Based on suggestions from all the political groups in the Parliament, a number of experts and people who were otherwise involved in the issues concerned were invited to give evidence and answer questions at several high-profile parliamentary hearings. Apart from “internal” speakers such as several commissioners and the EMSA executive director, numerous Spanish officials who had been involved with Prestige were invited, as well as third-­ party experts and NGOs. So were the head of the Bahamas flag state

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authority and the UK’s secretary of state representative (Sosrep).70 The latter was a pioneering institution established by the UK government in response to one of Lord Donaldson’s post-Braer recommendations.71 Sosrep’s mandate is to assist the British government in designating places of refuge in case of marine accidents on its coast. A major bone of contention from the start was the Mare committee’s desire to hear the views of Captain Mangouras, the jailed master of Prestige. Owing to the strict bail conditions imposed by the Spanish authorities, he was not allowed to fly to Brussels despite a massive bail of USD 3.2 million posted by Prestige’s P&I insurance company to get him out of jail. Instead, Captain Mangouras had to report to a local police station in Barcelona once a day.72 A secret meeting between the captain and a handful of Mare members was therefore organised out of the public eye.73 During this session, Captain Mangouras got the chance to explain his version of the events with particular emphasis on how he felt the port captain at A Coruña had critically overridden his own best professional safety assessments for the vessel’s operation. Apart from Captain Mangouras, the most noteworthy speaker at the Mare hearings was probably secretary general Mitropoulos. With his Greek background and having already met de Palacio twice, he had become something of an EU “insider”. And should any further proof of his credentials for compromise and bridgebuilding be needed, it is provided by his submission to the Mare committee at the session on 19 February 2004. He made it clear why the IMO was the indisputable vehicle for delivering the international regulation required not only by the globalised shipping industry but also by the EU and the Parliament itself. However, Mitropoulos began his submission by welcoming the commitment of the MEPs and Mare to improving safety at sea. He went on to pay his respects to seafarers lost in a shipwreck off Norway just weeks earlier, before presenting statistics and examples which demonstrated that, despite accidents and fatalities remaining unacceptably high, steady progress was being made at the international level. On the whole, his address came across as humble and as a sincere welcome for the engagement by the Parliament and the EU.  Running through the maritime safety agenda issue by issue, Mitropoulos concluded each item by inviting the EU to continue providing specific and constructive input to these processes. In particular, he praised the EU for lending valuable support to the IMO’s efforts to establish a voluntary IMO member-state auditing scheme and to strengthen cooperation on PSC worldwide.74

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With his diplomatic skill, Mitropoulos made a significant contribution to cementing the new entente between the EU institutions and the IMO outlined earlier in this chapter. In fact, the Mare report adopted in April 2004 confirmed how the Parliament had come a long way in responding constructively to the invitation from Mitropoulos on several of his main points. In it, the Parliament even went as far as to criticise the southern Member States for their unilateral action in banning what they considered to be high-risk vessels from transiting their respective 200-mile zones.75 As far as the classification societies were concerned, the Mare report welcomed a harmonised EU auditing system of EU ROs and urged the introduction of a system of penalties for non-compliance with the directive.

Major Flag States Cyprus and Malta Becomes EU Members In early May 2004, Lloyd’s List ran an editorial headed “Enlarging the maritime presence”. The occasion was the expansion of the EU by 10 new Member States on 1 May 2004. These included Poland and the Baltic states, which, despite the breakdown of the communist economies, continued possessing considerable maritime industry expertise—primarily in the form of skilled seafarers and shipbuilding know-how. More important, however, Malta and Cyprus became EU flag states, adding substantially to the combined EU fleet (Fig. 5.1).76 This change was important on several accounts. First, the EU’s combined clout augmented dramatically at international level since fleet size count in IMO decision-making processes. But it also meant that from there on more than a quarter of the EU fleet could be characterised as FOC. This in turn had policy consequences since the EU’s regulatory impact through the RO regulation was conditioned by the EU fleet being commercially attractive (competitive) for attracting shipowners in the global market. Shortly after accession, in the early autumn of 2004, the tenure of the Romano Prodi Commission came to end. De Palacio’s positions as transport commissioner and Commission vice president were taken over by Frenchman Jacques Barrot. That was significant enough for future maritime policy in its own right but became much more pronounced because many of the key civil servants in the Commission’s maritime safety unit had by then left to join their former boss de Ruiter at the EMSA secretariat in Lisbon.77 This change of guard in Brussels, combined with the massive

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Cyprus

Malta

Pre-2005 members

149

Other 2005 members

Source: Lloyd's Statistical Tables, 2003 & 2005 Fig. 5.1  Cyprus and Malta shares of the total EU fleet post 2005 enlargement

build-up of EMSA’s staff which followed, implied not only a vast expansion of the EU’s maritime safety know-how and clout but also a shift of emphasis from Brussels-based policy generation to an approach based more on administrative expertise from Lisbon. At the same time, however, Jose Manual Barroso, the new Commission president and a former Portuguese prime minister, had plans which would influence the course of EU maritime policy even further. Over the years, the field had become ever more dominated by three main trends. The first was an increasing anxiety for the health of the world oceans, which was in itself a forceful undercurrent adding pace to the EU’s gradual shift of focus from shipping and flag state interests to more of a port and coastal state perspective. Second, this shift in attention dragged along a much wider set of ocean-related economic and social interests and stakeholders in defining the EU’s actual “maritime interests”. That brought not only fishing and small coastal marine businesses into the picture but also gave

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coastal tourism increased relevance. And third, the EU’s ambitions on the global scene—including in the maritime sector—had become much greater over the years. Having successfully overseen a similar transformation and revival at national level in Portugal, Barroso now brought the idea of an integrated approach for maritime policy to Brussels and the EU level. When organising his team of commissioners, he therefore added a new directorate general, DG MARE, with a dedicated commissioner to develop and oversee a more holistic maritime policy for the EU.  This combined fisheries and marine portfolio was given to Maltese diplomat and politician Joe Borg, whereas shipping was left with DG TREN as an integral part of the Commission’s transport policy set-up. The Commission thereby pioneered a trend which was to escalate worldwide over the years to come. For a long time, the world’s oceans and coastal areas—as well as populations dependent on the sea—had suffered from fragmented and sometimes uncoordinated policies and regulatory regimes. When the Barroso Commission took office, the time was ripe for a more coordinated approach and thereby also for adding yet another dimension to “enlarging the EU’s maritime presence”. Commissioner Borg almost immediately embarked on very wide round of public consultation over what was to materialise a year later as a Commission Green Paper outlining a European vision for the oceans.78 Meanwhile, Barrot and his staff in the Commission’s transport department continued work on the long expected final package of maritime safety measures. In the anticipation of this, and no doubt mindful of the importance of his past relationship with Barrot’s predecessor, Mitropoulos took the initiative in early 2005 by visiting Brussels once again.79 This time, however, demonstrating that he had understood the signals sent by Commission president Barroso, he did not content himself with meeting the transport commissioner only. Now he also knocked on the doors of maritime commissioner Joe Borg and environment commissioner Stavros Dimas.80

Summing up and Concluding Remarks, 2002–2005 The sinking of the Prestige came at a very decisive moment for EU maritime safety policy development. Not only did it reopen many of the issues raised by Erika, it threatened the unity which had hitherto developed at EU level. Most importantly, Prestige gradually revealed fractures between the EU and the IMO in a way which threatened the very existence of the

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international regime. Seen from a regime theory perspective, the EU and its Member States on the one hand, and the majority of IMO members on the other, came close to no longer sharing converging expectations on the principle and norms which were to govern the issue area of maritime safety. Towards the end of the period analysed in this chapter, however, a certain convergence was restored. This entente emerged as a result of several factors. One was that leading EU actors, such as the Commission—fronted by the commissioner herself—and the Parliament, were gradually coming to terms with the fact that adhering to an international regime was also the only way forward for meeting the EU’s interests. Another factor which played its part was that, with the two Erika packages adopted and the dramatically improved regulatory capacity which came with both the COSS and EMSA, the EU’s capabilities—and also its self-confidence—put the EU and the IMO on the same footing. Through these years, the dialogue between the two became levelled and equal and the EU felt that as a coordinated entity it had real influence on the IMO’s agenda policy priorities. Behind these outcomes were several years of institutional interaction between the EU and the international regime, which the EU affected first and foremost by what Oberthür and Gehring categorised as behavioural interaction, but to some extent also interaction through commitment.81 The first form can be seen where the EU—via its regional legislation—was able to induce behaviour change by key actors within its own “issue area”, which also became relevant for the way these actors behaved under the international regime. These key actors included not only flag states and ROs but also shipowners. Commitment-level interaction occurred because of a significant degree of overlap because governments were members of both the EU and the international regime. This also allowed the EU to play the role as source institution in an interaction where these decisive governments gradually came to commit themselves to the common values agreed at EU level as equally valid at the international regime level too. For the Baltic states, Cyprus and Malta, straightening up their flag state administrations and otherwise bringing their maritime legislation into line with the EU ‘acquis’ had played a major role in the accession talks leading up to 2004 enlargement.82 While the inclusion of Malta and Cyprus— both successful open registers—represented both a challenge and an opportunity for the EU, it offered the Commission a chance to bring the two flags up to standard. That also strengthened its arguments for

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introducing draft mandatory EU flag state rules as part of the envisaged wrapping-up and “final package” of maritime safety legislation. This legislative bundle was intended to wrap up the various measures adopted with the Erika I and II packages. By nearly doubling the total fleet under EU flags overnight, the accession also broadened the EU’s regulatory clout at international level significantly.83 Both the number of countries and the size of fleet count around IMO negotiating tables.84 Regardless of whether the idea of seeking EU membership in the UN body would eventually secure Council backing, the very fact that the EU bloc would consist of 10 more members—including some leading flag states—could only increase its potential influence. In conclusion, it could be said that a key component in the EU’s influence on the international maritime safety regime developed at the interface between the enlargement of the EU to encompass several sizable open registry states and the strengthened RO directive. This is where the Brussels Effect makes itself forcibly felt. The directive required an RO contracted by an EU flag state to effectively enforce EU rules not only when working in Europe but also regardless of flag and throughout its entire fleet. As long as EU flags—and here Cyprus and Malta are critical— remain competitive and commercially attractive in world shipping markets, it remains commercially unaffordable for an RO with global ambitions not to follow the rules.85 The need for five criteria to be present for the Brussels Effect to occur can help explain why and how the EU’s strong RO legislation came to extend its reach far beyond the remit of the EU itself, since it scores highly on all five. First, the European market must be understood in this case in terms of fleet size, that is, measured as the proportion of the EU flags to the world fleet. The second criterion, regulatory capacity, is demonstrated by the way the EU’s compromise-making machinery—consisting mainly of the organisational Commission-Council-Parliament triangle—serves as an efficient producer of strong and enforceable regulation. Through the mechanisms of this machinery, political will is transformed into regulation with relatively high legitimacy, founded as it is on strong technocratic input from the Commission and other sources. Furthermore, the internal regulatory consensus laid the ground for institutionalised enforcement mechanisms and capabilities through bodies such as the Commission-led committee on safe seas (COSS) and not least the European Maritime Safety Agency (EMSA). These bodies serve to meet Bradford’s third criterion, stringent regulation.

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As a fourth criterion, she suggests that stringent domestic regulations only can operate as a global standard when aimed at inelastic targets, that is, products or producers which are non-responsive to regulatory change and hence are tied to a certain regulatory regime. The location of the consumer—or client—within the EU, as opposed to the location of the producer—or service provider, determines the application of EU regulation to the targeted product or service. Interestingly, Bradford herself points at international shipping as an example of an elastic target since ships can easily be registered anywhere. This is correct, of course. In the case of the ROs, however, the EU found a way to circumvent this problem and to regulate the entire world fleet they classify—as long as they want to also operate in the EU market. The final criterion determining the Brussels Effect is non-divisibility. Bradford argues that global standards emerge only when corporations voluntarily opt to extend the regulatory requirements of the most stringent regulator to their global operations. Hence, non-divisibility refers to the practice of standardising—as opposed to customising—production or business practices across jurisdictions, thereby applying a uniform standard to govern the company’s global conduct.86 There is one element in this definition which does not immediately accord with the argument being outlined in this study, and that is the word “voluntarily”. However, referring to Joel Waldfogel, who originally allocated these kinds of alignment effects to a “tyranny of the market”, Bradford continues by observing that “the Brussels Effect differs from the tyranny of the market in that instead of simply the market dictating global standards, it is in the duality of both the market and the government that give rise to uniform production”.87 It is exactly this combination of market size (the size of the EU-flagged fleet) and government regulation—requiring classification societies servicing the needs of the EU fleet to apply the same quality standards regardless of the flag they work for—which explains why and how the maritime classification societies found themselves regulated on a global scale through the EU. At the same time, however, and somewhat paradoxically, this also illustrates how the EU’s ability to maintain longer-term influence on the international regime depends on keeping EU flags sufficiently agile in attracting business from the global shipping industry. A very strong interdependency has thereby been created between international market forces and the EU’s power over the international regime.

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Notes 1. “No place to hide”, Lloyd’s List, 22 November 2002. 2. “Madrid put forward its defence”, Lloyd’s List, 29 November 2002, and “Aznar apologises for failing to act quickly”, Lloyd’s List, 16 December 2002. 3. Author’s interview with Willem de Ruiter, October 2018. 4. “Chain of blame”, Lloyd’s List, 4 December 2002. 5. The jailing of Prestige’s master became a major issue in the maritime world. Numerous petitions at a high level in both Brussels and Madrid were presented by flag states, the Parliament, seafarer churches, seafarer unions, shipowner associations, and others. See, for example, “Spain rapped over Prestige master’s woe”, Lloyd’s List, 2 December 2002; “Bahamas protest to Spain over treatment of Mangouras”, Lloyd’s List, 5 December 2002; and “Mangouras still awaiting a decision as bail debate continues to captivate”, Lloyds List, 5 February 2003. In this study, however, the many aspects raised by the Mangouras issue will not be dealt with in detail. 6. “Europe gets down to clearing the mucky business of places of refuge”, Lloyd’s List, 3 March 2004. As with issues related to the arrest of Captain Mangouras, the many aspects of the places of refuge debate will not be dealt with in detail in this study. For a broader discussion of these issues, see for example Anthony Morrison, Places of Refuge for Ships in Distress: Problems and Methods of Resolution (Leiden: Martinus Nijhoff Publishers, 2012). 7. See, for example, IMO secretariat document MSC 77/8 dated 11 March 2003, which summarises the discussions to that point. 8. “Prestige sparks deja-vu”, editorial, Lloyd’s List, 19 December 2002. 9. “Greece disputes wrongdoing”, Lloyd’s List, 22 November 2002 and “Spanish use Prestige as a stick to beat Gibraltar”, Lloyd’s List, 18 November 2002. 10. “ABS under scrutiny as Prestige audit begins”, Lloyd’s List, 20 December 2002. 11. “Spain calls for flag state crack-down”, Lloyd’s List, 26 November 2002. 12. “France and Spain to slap no-go zone on tankers”, Lloyd’s List, 28 November 2002. 13. UNCLOS art 56, 1b iii. 14. “Spain calls in navy to expel Malta flagged tanker”, Lloyd’s List, 2 December 2002, and “Chirac takes tanker battle to the charterers”, Lloyd’s List, 5 December 2002. 15. “Spain single hull ban flies in the face of Law of the Sea”, Lloyd’s List, 4 December 2002. 16. Veronica Frank, “Consequences of the Prestige Sinking for European and International Law,” International Journal of Marine & Coastal Law 20, no. 1 (March 2005): 1–64.

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17. On improving safety at sea in response to the Prestige accident, COM(2002) 681 final: 12. 18. On improving safety at sea in response to the Prestige accident: 13. 19. 2472nd Council meeting on transport, telecoms, and energy, Brussels, 5–6 December 2002, 15,121/02 (Presse 380). 20. The condition assessment scheme (CAS) was adopted as a mandatory requirement under regulation 13G of MARPOL annex I on 27 April 2001 by resolution MEPC.94(46). It was later amended, first by resolution MEPC.99(48) adopted on 11 October 2002, which incorporated the model survey plan for CAS and the mandatory requirements for the safe conduct of CAS surveys, and second by resolution MEPC.112(50) adopted on 4 December 2003 as a consequence of amendments to regulation 13G and new regulation 13H of MARPOL annex I in the wake of the Prestige incident. 21. Henrik Ringbom, The EU Maritime Safety Policy and International Law, Publications on Ocean Development (Leiden: Brill, 2008): 46. 22. Report from the 2473rd Council meeting, Brussels, 9 December 2002, 15,101/02 (Presse 379). See also Communication from the Commission COM (2002) 539 Towards a strategy to protect and conserve the marine environment, dated 2 October 2002. 23. Presidency conclusions, Copenhagen European Council meeting, 12–13 December 2002, 15,917/02. 24. “Tricolor sinking flags Ro-Ro rule gap”, Lloyd’s List, 16 December 2002. 25. Loyola de Palacio promotes big international offensive in maritime safety, Commission press release, IP/03/135 (January 2003). 26. The process referred to by the commissioner was the ongoing deliberations concerning a binding IMO flag state implementation instrument, a draft proposal for which had just been presented by a working group under the FSI co-chaired by Denmark, Canada, and New Zealand, see document FSI 11/7 of 3 January presented to the MSC. 27. “Prestige highlights the need for EMSA”, Lloyd’s List, 28 November 2002, see also Langlais. 28. “De Ruiter to head European Maritime Safety Agency”, Lloyd’s List, 30 January 2003. 29. Directive 2001/105 on ship survey organisations. 30. “Repairs in the spotlight post Prestige”, Lloyd’s List, 28 November 2002. 31. On improving safety at sea in response to the prestige accident, COM(2002) 681 final, dated 3 December 2002: 7. 32. “Anne whips the ‘spoiled children’ of IACS”, Lloyd’s List, 11 November 2002, and “Payer slams class trio for going it alone on safety”, Lloyd’s List, 6 November 2002.

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33. See “IMO Strategy Plan”, IMO Council document C 89/12/1, dated 8 October 2002. See also “Call for IMO to take on role from class”, Lloyd’s List, 22 November 2002. 34. See Commission communication concerning a common policy on safe seas, Chap. 3. 35. “A revolution in ship safety is under way, says Salerno”, Lloyd’s List, 5 February 2004. 36. See “Goal based new ship construction standards”, IMO MSC document 78/6/2, dated 5 February 2004 and “Decisions of Other IMO bodies”, IMO MSC document 77/2/5, dated 26 March 2003. 37. “Spain sues ABS over ‘Prestige’ in New  York federal court, American Shipper, 23 May 2003. The case dragged on for years and was only settled in 2012 where the Spanish government’s claims against ABS were finally dismissed. 38. The Parliament had already adopted strongly worded resolutions on the necessary regulatory follow-up to Prestige on two occasions in 2002 – P5 TA (2002) 0575, 21/11/2002; and P5_TA (2002) 0629, 19/12/2002. 39. Improving Safety at Sea in Response to the Prestige Accident, Public Hearing, Timing, 19/20 March 2003, Document RETT (TRAN) Program, Hearing, Prestige.pdf, held in the Parliament’s historical archives, Luxembourg. 40. Loyola de Palacio speech at public hearing on Prestige, speech/03/141: 1. 41. Loyola de Palacio speech: 5 (author’s italics). 42. ABS Submission to the European Parliament, Public Hearing in Response to the Prestige Accident, 19 March 2003, Document PES_AP_ RPIRETT.1999_A5–0278!2003 0375 EN.pdf, held in the Parliament’s historical archives, Luxembourg. 43. Improving safety at sea in response to the Prestige accident. Public Hearing, IACS hearing document, held in the Parliament historical archives, Luxembourg, 44. European Parliament resolution on improving safety at sea in response to the ‘Prestige’ accident, OJ C77 E/76, 26 March 2004. 45. Frank, “Consequences of the Prestige Sinking for European and International Law”: 27. 46. “Asian owners voice protest at European single-hull ban”, Lloyd’s List, 17 December 2002, and “Asian counterbalance to the EU is needed”, Lloyd’s List, 30 January 2003. 47. “Veto danger as nations try to agree on phasing-out rules for tankers”, Lloyd’s List, 1 December 2003. 48. See Liberia’s misgivings aired at MSC 73, as reported in document MSC 73/21. 49. “Spain calls for flag state crack-down”, Lloyd’s List, 26 November 2002, and “Malta hits out over IMO silence”, Lloyd’s List, 16 December 2002.

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50. “Focus on ship safety debate shifts to the role of flag states”, Lloyd’s List, 19 April 2004. 51. “IMO remains the bedrock of global standards”, Lloyds List, 2 December 2002. 52. “Bulkers take centre stage at IMO debates”, Lloyd’s List, 29 November 2002. 53. Commission recommendation in order to authorise the Commission to open and conduct negotiations with IMO on the conditions and arrangements for accession by the European Community to the IMO (and ICAO), ref. SEC (2002) 381. 54. This line of argument is common on the part of the European Commission. However, research suggest that speaking with one voice does not always equal increased EU influence on external affairs. See, for example Canceicao-Heldt and Sophie Meunier, “Speaking with a Single Voice: Internal Cohesiveness and External Effectiveness of the EU in Global Governance,” Journal of European Public Policy 21, no. 7 (2014). 55. Since then, no other Council presidency has put the issue on the agenda. But the proposal has not been formally withdrawn by the Commission either and is therefore still on the backburner. 56. “O’Neil to urge Greece champion IMO’s cause in Europe”, Lloyd’s List, 9 January 2003. 57. “Greece to put IMO case to ‘hawkish’ EU partners”, Lloyd’s List, 14 January 2003. 58. “O’Neil and de Palacio join hands against old tankers”, Lloyd’s List, 6 March 2003. 59. European Commission press release, IP 03330, 6 March 2003. 60. Author’s interview with Margaritis Schinas, Brussels, January 2019. 61. “O’Neil favours technical expertise over political expediency”, Lloyd’s List, 5 June 2000. 62. “IMO hammers out single hull compromise”, Lloyd’s List, 5 December 2003. 63. Marine Environment and Tanker Safety: A G8 Action Plan, Evian, 3 June 2003. 64. “Mitropoulos takes the helm at the IMO”, Lloyd’s List, 5 January 2004. 65. “Mitropoulos takes the helm at the IMO”. 66. “Mitropoulos to lay down law on IMO in Brussels”, Lloyd’s List, 16 January 2004. 67. “European Commission and International Maritime Organisation decide to enhance their working relationship”, European Commission press release, IP/04/55, 15 January 2004. 68. European Parliament resolution on improving safety at sea in response to the ‘Prestige’ accident, point 1, Official Journal C 77 E, 26 March 2004. 69. Overview provided by the European Parliament historical archives in Luxembourg to the author by email dated 5 December 2019.

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70. Programme for the Mare hearings of 1–2 December 2003, 22 January 2004, and 18 February 2004, all held in the Mare committee folder, European Parliament historical archives, Luxembourg. 71. For more on the Donaldson inquiry, see Chap. 3. 72. “London P&I Club post bail to buy liberty for Mangouras”, Lloyd’s List, 7 March 2003. 73. The meeting was organised with the help of Captain Mangouras’ lawyers, Ince & Co. See copy of email exchange between the EP RETT secretariat and Ince & Co dated 14 January 2004, found in the European Parliament historical archives, Mare folder, Luxembourg. See also “Safety committee calls for Mangouras testimony”, Lloyd’s List, 3 December 2003. 74. Presentation by the IMO Secretary-General, European Parliament Temporary Committee on Improving Safety at Sea, 19 February 2004. 75. European Parliament Report on improving safety at sea, (2003/2235(INI)), 7 April 2004. 76. “Enlarging the maritime presence”, Lloyd’s List, 4 May 2004. 77. By 2020, EMSA’s total staff had stabilised at around 250 employees. 78. Commission green paper, Towards a future Maritime Policy for the European Union: A European vision for the oceans and the seas, SEC(2006) 689 79. “Brussels seeks a single voice for Europe”, Lloyd’s List, 14 February 2005. 80. “Mitropoulos opens dialogue with Commissioner Borg”, Lloyd’s List, 28 January 2005. 81. Sebastian Oberthür and Thomas Gehring eds, Institutional Interaction in Global Environmental Governance: Synergy and Conflict among International and EU Policies (Cambridge, Mass: MIT Press, 2006): 8–9. 82. The EU’s “acquis” is the body of common rights and obligations which are binding on all EU countries as EU Member States. 83. From 118 million DWT in 2003 to nearly 210 million DWT in 2005, figures from UNCTAD Statistical database. 84. At the IMO, each Member State has one vote. At the same time, however, access to seats in some of the governing bodies will be subject to certain criteria, including fleet size under the national flag. 85. Both Cyprus and Malta are important open registry states competing worldwide for ships to register under their flags. 86. Anu Bradford, The Brussels Effect. How the European Union Rules the World (New York: Oxford University Press, 2020): 25–65. 87. Joel Waldfogel, The Tyranny of the Market: Why You Can’t Always Get What You Want (Cambridge, Mass: Harvard University Press, 2007).

CHAPTER 6

From EU-IMO Confrontation to Constructive Institutional Interaction

The Commission’s Third Package of EU Maritime Regulation By 2005, the centre of gravity for the many important issues raised by the EU was in process of shifting back from Brussels to the IMO. This was particularly apparent when looking at the work performed by the IMO’s sub-committee on flag state implementation (FSI), a sub-committee consisting of flag state administrations and industry observers focusing entirely on the many crucial ways and means for improving flag state compliance. The report from its 13th session held that same year shows clearly how the sub-committee had come a long way in pushing the IMO towards more ambitious flag state compliance. The report presented the Maritime Safety Committee (MSC) with a draft code for the implementation of mandatory IMO instruments and a set of criteria and measures for achieving better quality and transparency in government delegation to ROs. The FSI had also made good progress in the development of a voluntary self-­assessment scheme for flag state performance by IMO members.1 In other words, tangible progress was now seemingly being made towards an IMO flag state code—albeit a voluntary one—with an attached audit scheme.2 This had been an EU priority for a long time, and the developments were acclaimed by many. Lloyd’s List, for example, ran an editorial in early 2004 to calm fears that the envisaged regime’s voluntary © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0_6

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character would make it useless. Rather, the editorial said, “the successful [flag state] audit will provide the imprimatur of respectability for any flag; while the absence of a flag from the list of audited flag states will tend to attract the attention of inspectors to the ships that fly its ensign. There is thus a strong commercial incentive for a state to submit itself to an audit”.3 In a parallel process, the FSI was also paying increased attention to the fact that many flag states were slow, and quite often blatantly failing, to fulfil their fundamental obligation to conduct serious investigations into accidents involving vessels under their flag.4 The above-mentioned agenda points from the FSI were mirrored at the European level when the Commission presented its third package of maritime safety measures, also called Erika III, to the Council in November 2005.5 This time round, the Commission’s package comprised no less than seven proposals, and the overall regulatory scope was widened compared with its two predecessors. At the core were once again recasts of the three directives which had by now become pillars of EU maritime safety legislation, the directives on port state control, vessel traffic monitoring (VTM) and the ROs, which were all presented in substantially revised draft versions. The four additional proposals made entirely new topic areas subject to EU legislation. Two addressed aspects of shipowner liability will not be addressed in this study.6 The two remaining new proposals both addressed the EU Member States in their capacity as flag states. One called for a directive on minimum requirements for (EU) flag state administrations, while the other established some fundamental mandatory criteria which would have to be observed by these administrations when undertaking the accident investigation required under the IMO rules. Both these subjects had, as we have seen, clear parallels on the agenda of the IMO’s FSI sub-committee where they were progressing—albeit slowly. And, indeed, the Commission made explicit reference to the IMO processes in the explanatory memorandum accompanying the two flag state proposals. It noted with satisfaction that both a voluntary code on flag state criteria and an accompanying flag state auditing self-assessment scheme were soon likely to be adopted by the IMO assembly. “The Commission lost no time grasping lessons to be drawn at Community level from the international work, all the more so as the Council itself had already delivered its opinion on the course of action to be followed,” the Commission said.7 In addition to the many discussions which had taken place at the EU level, it seems obvious that the

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Commission was also referring to the multiple input which had been provided by EU Member States to the IMO. Reinforcing the explanatory memorandum’s reference to progress at the IMO, the Commission also drew attention to statistics from the Paris MOU on PSC as well as to a joint declaration from the second joint ministerial conference of the Paris and Tokyo MOUs, which had taken place a few months earlier. The Commission argued that mandatory minimum criteria for EU flag states were justified. 8 It also pointed to the newly announced private-sector initiative taken by the International Chamber of Shipping (ICS). To assist its shipowning members to recognise and direct their cooperation towards the best performing flags, the ICS had decided to publish industry guidelines on an annual basis. In this context, the Commission maintained that minimum criteria for EU flag state administrations based on the IMO criteria would create a much-needed level playing field between EU maritime registers, but also benefit maritime safety more in general by demonstrating commitment to the forthcoming IMO instruments.9 When the package was put before the Council, three years had passed since the sinking of Prestige and five since the loss of Erika. Those years had been exceptionally busy in terms of establishing and continuously reinforcing the EU’s common maritime safety policy. In the process, huge amounts of competence on these matters had been transferred from the individual Member State to EU level. Most importantly, significant EU institution-building had taken place in the sector, initially through the safe seas committee (COSS) and then most prominently, of course, by the rapid build-up and expansion of EMSA. By the end of 2005, these two maritime safety organs had become prerequisites for the EU’s collective ability to act as a group. They thereby also provided the legitimacy, administrative routines, and resources required for the EU to carve out a collective role for itself in the international regulatory arena. More on this below.

EU–IMO Relations Find Its Form Meanwhile, the Commission’s proposal for negotiating a joint EU membership of the IMO had still not been acted on by the Council. Following up the 30-year-old cooperation agreement between the Commission and the IMO secretariat signed in 1974, however, a first-ever permanent Commission representative to the IMO was soon to be appointed. Formally an observer only, with no right to negotiate—let alone

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speak—on behalf of the EU Member States, former Dutch maritime administration official Marten Koopmans took up this position in April 2006. And gradually the position became crucial, in a low-key and flexible manner, in establishing new routines for Member State dealings with the IMO. The EU treaty provides no explicit legal basis for the Commission to exercise external competence in the maritime field.10 However, this practice has been introduced piecemeal, starting with one of the earliest pieces of Community maritime legislation establishing certain principles for joint consultation with third countries in the maritime domain.11 These 1977 rules were then significantly expanded in 2005 when the Council was presented with a 15-page Commission proposal for a procedural framework to guide both it and the Member States in their future joint dealings with the IMO.12 However, this framework was never formally adopted by the Council and, particularly during the early years after its introduction, Member States were reluctant and sometimes even unwilling to subject themselves to such coordination.13 Since then, EU Member States have accepted, bit by bit, to act—at least part of the time—as a coordinated group in the IMO.14 There are several reasons for this. One is rather legalistic and was crystallised by a 2009 ECJ judgement in a case initially raised by the Commission against Greece in 2007.15 At the time, the Greeks were insisting on their sovereign right to file an IMO proposal related to the implementation of specific aspects of the SOLAS convention and the ISPS Code unilaterally and without prior consultation with the Commission.16 However, the latter argued that the relevant sections of the two instruments had been turned into EU legislation and that the Greek concerns fell within the EU’s competence. They should therefore have been subject to a coordinated approach. In its complaint, the Commission referred to Article 4(3) of the EU treaty: Pursuant to the principle of sincere cooperation, the Union and its Member States shall, in full mutual respect, assist each other carrying out tasks which flows from the treaties. […] The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objective.17

In its judgement, the ECJ fully supported the Commission’s argument and provided that:

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The mere fact that the Community is not a member of an international organisation in no way authorises a Member State, acting individually in the context of its participation in an international organisation, to assume obligations likely to affect Community rules promulgated for the attainment of the objectives of the Treaty. Moreover, the fact that the Community is not a member of an international organisation does not prevent its external competence from being in fact exercised, in particular through the Member States acting jointly in the Community interest.18

The judgement against Greece set a new standard, and was described retrospectively by Fotis Karamitsos, the Commission’s director for maritime affairs at the time, as a turning point for the development of a common EU approach towards the IMO.19 It has later been followed up by similar ECJ verdicts related to EU coordination in other international organisations.20 The ruling has also triggered extensive comments and reflections by EU legal scholars which elaborate on the treaty-related concepts of “duty of loyalty” and “duty of cooperation”, and on how these principles have also gradually gained relevance in the field of external relations.21 Determining whether the EU has acquired competence in a given topic or field under discussion at the IMO has indeed been a critical factor in implementing the 2005 procedural framework. The outcome of this assessment will dictate whether an issue should be subject to coordination or not. However, as demonstrated above, the 2005 procedural framework has never been formally endorsed by the Council and this particular aspect has caused conflict from the very start. In the decade following the ECJ verdict on Greece, the principles have nevertheless been largely accepted— although not always without a fight—and are now embedded as “the rules of the game”. This mostly efficient solution has to a large extent been achieved through diplomacy and flexibility.22 In his interview-based study of EU coordination at the IMO, Christer Gulbrandsen quotes a key EU insider who estimated that about 10–20 per cent of the IMO agenda by then (2010) fell fully within EU competence. Another 20–30 per cent belonged to a grey area “where you can argue either way”. The remaining 50–60 per cent was entirely in the domain of national sovereignty, this informant said.23 In the same study, Gulbrandsen found that, despite identifiable irritation over the Commission’s role both in EU Member State delegations and among other IMO members, the Commission was largely taking a low-key and pragmatic approach in its quest for a common approach. In this context, another insider is quoted as saying that,

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discussions on where ‘competence’ resides could be very time-consuming, so the [Commission] permanent representative has taken a very pragmatic approach. [...]. If we happen to agree with each other on a voluntary basis […], it is not relevant if it is Community competence […]. To put it in other words, we have thus been able to avoid raising the issue of whether a particular subject is Community competence or not.24

One could clearly argue that this compromise-driven tactic is very much a reflection of how the entire EU machinery works. And as far as this specific EU coordination in relation to the IMO is concerned, there is little reason to believe that the state of affairs described above changed significantly in the decade which has passed since these interviews were conducted, except for the fact that the number of issues relevant for EU coordination will have increased and the procedures further tightened.25 Usual practice is the Commission representative at the IMO receives all IMO documents routinely and directly from the organisation’s secretariat in parallel with the Member States. The representative then sorts them roughly into the three categories of issues described above. Most importantly, the areas where EU competence appears to exist must be identified. Where the latter are concerned, the next step will be for the representative to draft an initial recommendation on a joint EU position or even an EU submission on the issues concerned. These recommendations will thereafter be passed to the relevant Commission DGs, the Commission’s legal service, EMSA and, of course, the Member States for further scrutiny.26 To facilitate coordination before specific IMO meetings, it is common practice for the Commission to instigate informal coordination by drafting “non-papers” containing proposed positions for the EU Member States to take at IMO.27 They are discussed and agreed upon by the Member States in the shipping working prior to the start of the IMO meeting. Formal coordination will take place when a decision is to be taken at IMO which will have legal effect on EU law. In this case, the Commission will put forward a proposal for a Council decision on the position to be taken at the IMO on behalf of the EU. As opposed to the informal coordination, Council decisions follow a formal EU decision process, agreed and rubber stamped by the Council. Back in London, where the IMO is based, further and last-minute on the spot coordination will normally take place between the Commission, all Member State delegations and quite frequently also representatives from interested EFTA member states depending on the issue’s “EEA

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relevance”.28 At these meetings, tactics will often be agreed upon for how issues are to be introduced and followed up during the forthcoming IMO debates. The normal procedure will be for the Council presidency— assisted by the Council secretariate—to present the EU common position and/or joint submission to the IMO committee concerned, followed by support and/or additional comment, as appropriate, from the other Member States.29 There is no denying that EU coordination in relation to the IMO has attracted a great deal of criticism over the years.30 It has been argued that these coordination efforts amount to regionalism and even unilateralism.31 Industry as well as IMO Member States inside and outside the EU, and sometimes the IMO secretariat itself, have at times been vocal opponents. But the EU’s presence at the IMO seems gradually to have found its mostly constructive form.32 From 2005 and throughout the rest of the decade, the number of IMO submissions co-sponsored by Member States and the Commission doubled from 10 to 20 a year as the EU Member States played a very active role on all the big issues which were simultaneously on the EU and IMO agendas.33 The goal for the EU and its Member States was obviously to push the IMO debates forward, but also to seek alignment between their own and international rules through the IMO, a strategy which found its most telling expression in 2008, ref. the discussion of ROs below. As is apparent from the above, the Commission—although playing a crucial role—operated towards the IMO largely from behind the Member States.34 But, in parallel and assisted by these processes, it gradually took on an extended and more independent and proactive role towards other key actors. The fact that the commissioners in charge established regular consultations with the IMO secretary general, starting with Neil Kinnock, continued and expanded under Loyola de Palacio, and thereafter by Jacques Barrot, has already been demonstrated. In addition, Commission officials at all levels systematically built contacts and established a role for themselves with their opposite numbers not only at the IMO but also with the US Coast Guard and with maritime and PSC administrations worldwide—including in China, Japan, and the Republic of Korea.35 All these developments evolved in parallel with the laborious wrestling by Council and Parliament over the seven Erika III proposals. Through a lengthy co-decision-making process, this was to go on for four years before the proposals were finally adopted as EU legislation.

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On the one hand, the immediate heat created by Braer and further fuelled by Erika and Prestige had cooled considerably by 2005. Maritime safety remained on the agenda but became less prominent in terms of political urgency. On the other, the scope and breadth of action had expanded and become institutionalised. That reflected not least the fact that EMSA’s main objective, like most other EU agencies, was to assist Member States and the Commission to “apply Community legislation properly”.36 It seems reasonable to conclude that, throughout this period in particular, EMSA contributed significantly to this goal. That was not least achieved by providing an expert platform for diffusion of knowledge and best practice through knowledge-based networks accepted and trusted not only by Member States (the Council), the Commission, and the Parliament, but also to a large extent by the industry and the IMO.37 Much was therefore still going on, although a little more out of the limelight than before.

For the Third Time, EU Widens the Scope for Its RO Regulatory Approach A staff working paper issued by the Commission in February 2005 formed the basis for consulting Member States and industry representatives on several aspects of an envisaged revision of directive 94/57/EC on ROs, which had been revised twice already. Consisting of a fairly detailed list of questions, the paper centred around some key features which had been identified as particularly ripe for review. Among the most radical were a possible enhanced system for monitoring and governance of the ROs, including a proposal for better separation between classification and statutory duties, a reform of the recognition criteria, and a system of penalties for non-compliance. The potential consequences of the forthcoming proposals indicated by the questions had already alarmed IACS and its members. Barrot added fuel to the fire when he informed the Parliament’s transport committee of the Commission’s concerns about the quality of some EU ROs and said withdrawing recognition from certain of them was under consideration.38 The issues related to monitoring and governance generated the fiercest debates during the pre-proposal consultation process. Coordinated by IACS, the classification societies strongly opposed the idea of separating classification work from their statutory duties and claimed that such an

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approach would weaken the ability of the ROs to do their job. The argument was that it would benefit safety to keep these roles combined—in other words, undertaken not only by the same organisation and legal person but preferably also by the same surveyor. Classification and statutory rules were intertwined and partly overlapped, IACS argued, and separating the two in terms of monitoring and certification would be practically impossible.39 However, the Commission was concerned. It had been alarmed by what were perceived to be potential similarities between maritime classification on the one hand and the behaviour which had just been exposed in the USA by the accounting scandal surrounding the collapse of Enron. The giant American energy company had been both audited and advised by the same accountancy partnership, Arthur Andersen, which was also destroyed in the process, and the whole affair reignited a longstanding conflict around self-regulation over corporate auditing.40 In preparing its revised RO proposal, the Commission had therefore commissioned EMSA to conduct a study of the multiple roles played by the classification societies. The agency’s findings only reinforced the Commission’s view that the societies were involved on too many sides of the equation.41 Likening the roles of maritime classification to those of the leading accounting firms—and therefore also looking for regulatory inspiration from that sector—had become a key driver behind the idea of imposing a “firewall” between private classification services on the one hand and the function of ROs on the other. Although the cases are far from identical, striking similarities existed between the multiple roles performed by the leading maritime classification societies and those of the “big four” accounting firms.42 These include the fact that the contemporary accountancy industry—just like the maritime—can trace their origins back to the mid-eighteenth century and imperial London’s world trade system. Both also involve private organisations, which develop rules and standards, and which perform a mix of private and government auditing and certification tasks where the rules and standards developed by the same companies are often referenced. In addition, a larger or smaller element of commercial advisory services is provided to clients, although in both sectors the serious operators are committed to internal ethical guidelines and self-regulation in order to keep these sides apart. Unlike the maritime sector, however, strict regulation has gradually been introduced for accountancy on both sides of the Atlantic. And the main aim of this government “interference” is precisely

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to be a supplement to traditional self-regulation and thereby to secure better separation between the various tasks performed by these companies. Where the maritime industry is concerned, Member States saw things differently, and largely agreed with IACS on the issue of separation. Consequently, the Commission refrained from pursuing this idea in the final version of the proposal sent to the Council in late November 2005.

The EU Co-Decision-Making Process, Lengthy but Productive Instead, the Commission proposed a more robust and independent system for quality assessment and certification of the ROs. As presented, this proposal suggested more stringent rules on recognition, on fines and on the ultimate withdrawal of recognition in cases of non-compliance. All this was to be managed by the Commission in consultation with Member States within the COSS remits. The final draft directive also provided a legal basis for the Commission later to propose a set of criteria or key performance indicators (KPIs) for measuring the safety and pollution performance of the individual ROs recognised by the EU.43 Furthermore, the proposed new directive significantly extended requirements for the ROs to ensure that their technical rules and regulations were being continuously harmonised, shared, and interpreted together with the international (statutory) conventions in a uniform manner. In the earlier version of the directive, these requirements were expressed in a few sentences and were couched in rather general and non-­ specific terms.44 However, they were expanded on in the new draft and made far more comprehensive and specific. Notably, the new text suggested substituting the term “technical standards” used in the old directive with “rules and regulations”. And, even more significantly, it introduced an obligation for the ROs not only to consult with each other but also to gradually work towards mutual recognition of each other’s certificates.45 These suggestions would prove the most contested elements of the proposals in the subsequent decision-making processes, along with the fact that the new and strengthened recognition criteria implicitly granted the Commission (assisted by EMSA) physical access to all vessels regardless of flag.46

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The Commission tabled its proposals for a revision of the directive in late 2005. In line with the treaty’s procedural rules, however, the Council presidency is free to decide whether and, if so, when to start dealing with a Commission submission. As happened under the UK presidency in this case, the Council may choose to take its time. Once the Council has put a Commission proposal on its formal agenda and the issue has reached the stage of its “second reading”, however, the clock starts ticking in accordance with a strict timetable. This ensures that a decision will ultimately be reached through a multi-step consultation procedure aimed at forging a compromise between Council, Parliament, and Commission.47 Since the Council was rather slow in putting the issues on the agenda, the Parliament’s committee on transport and tourism (TRAN) therefore was first off the mark in expressing its views in the first reading.

EU Parliament Calls for More Flag State Involvement with the ROs The appointed parliamentary rapporteur for the RO directive, Luis de Grandes Pasqual from Spain’s European Popular Party, had a difficult task. Although a relative newcomer to the Parliament (elected in 2004) and a complete novice in the world of maritime classification, he was a seasoned politician and a lawyer by training. Nor did he take this task lightly. Despite the limitation of speaking only Spanish, he held numerous meetings with stakeholders to understand how best to craft the Parliament’s comments on and reactions to the Commission’s draft proposals. IACS, for one, doubtlessly benefitted from having an able DNV executive who was both Spanish-speaking and a top classification expert ready to meet Pasqual on several occasions to scrutinise the directive and its intentions in detail.48 But this took time and, in the absence of the sense of urgency which prevailed in the wake of Erika and Prestige, and with no signs of the Council engaging yet, it was not until March 2007 that Pasqual’s committee report was ready for discussion. A vote followed on 25 April.49 Despite industry lobbying, the Parliament largely supported the Commission’s suggestions, except on one important point. It called for stronger Member State involvement in what was to become an external quality management body to oversee the ROs. Until then, such oversight had been left wholly to industry self-regulation.50 Throughout the process until final adoption in 2009, the Parliament insisted that this task should be a joint undertaking

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with representation from both Member States and the ROs. However, the Council never accepted this principle, and it was therefore excluded from the final joint text agreed by the conciliation committee in February 2009.51

EU Member States Move to Further Severe the Union’s RO Legislation However, a more significant amendment to the Commission proposal came in the Council’s common position in 2008, which suggested splitting the draft directive in two. It would be replaced, first, by a regulation containing all the new and old clauses, which addressed RO activities explicitly. This would make the ROs unconditionally subject to EU regulation and to direct Commission supervision.52 Second, a directive would be adopted in parallel with the regulation aimed at bringing together the remaining clauses, which were directly aimed at Member States and the way these were to organise their relationship with their ROs. The Council’s first reading at the June 2008 Transport Council meeting thereby yielded redrafts for two legal acts in place of the one suggested by the Commission. The Council’s decision to split the legislation in two was not taken without close consultation—and even collaboration—with the Commission. In fact, such informal dialogue aimed at preparing the ground for a final compromise forms part of the decision-making procedure. The split was also accompanied by significant rewording and, with some respects, an expansion of the scope of the combined legislation for governing ROs. In terms of substance, the most significant change from the Commission’s initial 2005 proposal related to requirements for consultation on and harmonisation of rules and regulations. In the draft regulation which emerged from the Council’s first reading, an additional requirement had been inserted whereby the ROs would also work gradually towards harmonisation and mutual recognition of certificates for materials and components (CMC). As part of their private classification services, the leading societies require such certificates on all equipment and materials deemed relevant to the quality and safe operation of each ship. The aim is to ensure that the vessels classed are safe and fit for purpose as integral technical systems in a world where most vessels are being built off series and based on materials and components incorporated from different sources. This CMC work is undertaken by qualified staff, who survey type approvals for products manufactured in series, design reviews for products

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specific to a single ship, and design assessments for small systems. Apart from checking safety and quality, the process ensures that the requirements of the society’s class rules and other applicable standards are met. This is considered especially important owing to the differences in rule development concepts between the various classification societies. Certification of safety-relevant materials, components, and systems is therefore mandatory for obtaining final classification of a vessel. Traditionally, each society certifies these products for itself, which means that manufacturers face multiple certifications of the same product. That, of course, has added to manufacturing costs and led to complaints of unnecessary duplication imposed by the societies.53 This new requirement aroused both financial and safety concerns at the classification societies. Financially, CMC fees represented a significant share of the commercial income for any society and therefore mattered for the bottom line and viability of its business. From a safety perspective, requiring mutual recognition of CMC certificates was a worry because it effectively meant that each society—which was ultimately responsible for issuing the final overall certificates of seaworthiness for the vessel as an integrated piece of engineering—could lose control over the quality of the individual component incorporated in it. Adding to the classification societies’ woes was the feeling that the new requirements seemed to be inspired by the logic behind the marine equipment directive (MED) adopted in 1996.54 In particular, it seemed to IACS that the MED’s second aim—namely, to facilitate trade within the EU—was behind this, rather than a desire to strengthen maritime safety.55 Nor did it help that the expanded wording of the regulation and its potential implications came as a complete surprise to IACS and its members. It was first picked up at a meeting with the Commission in the late summer of 2006 on a completely different subject, where representatives of the European Marine Equipment Council (EMEC) were also present.56 When the issue of mutual recognition emerged—unannounced and on the margin of the meeting’s official agenda—the discussions between the members present from the two maritime sectors became so confrontational and hostile that the meeting had to be adjourned. It later became apparent to IACS and its members that EMEC had successfully advocated inserting the new requirement into the Council draft with the assistance of the Commission’s directorate general for EU enterprise and industry affairs (DG ENTER).57

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The revelation that a requirement for mutual recognition of CMCs had been added to the Council’s draft kick-started an intensive lobbying campaign by IACS towards Council members, the Parliament, and the Commission. Several letters signed by the IACS chair and addressed to EU ministers argued against both the logic and the wisdom of the suggested change. The classification society of the vessel must be in the position to properly verify compliance of complex systems with classification requirements. A dilution and fragmentation of the certification process of equipment among a number of class societies would thus lead to a risk of reduced, not improved, safety on board the ship, IACS argued.58 A series of meetings was also organised with a handful of leading maritime Member States in an attempt to influence the final outcome. As it gradually recognised that the new and additional requirements could not be entirely avoided, IACS’ aim became to advocate some form of wording which would recognise the safety aspects and thereby limit the obligation of the societies to extend mutual recognition of CMC to components and materials of a non-safety-critical nature only. In a public comment on the ongoing debates in the EU, EMEC took a different view. It claimed that mutual recognition of certificates based on harmonised rules and issued by ROs to meet the most demanding standards would make the certification process for marine equipment more efficient while still ensuring that safety and environmental protection were guaranteed. It also kept making the argument that, under the prevailing process, marine equipment companies had been forced to devote too many resources to obtaining “certificates for the same piece of equipment by each recognised organisation”.59 In short, the arguments and views remained totally opposed and left the rest of the industry searching for a position in between. However, IACS’ arguments were heard to some extent. In the end, the adopted wording concerning the requirement for mutual recognition was followed by the sentence: “Where mutual recognition cannot be agreed upon for serious safety reasons, recognised organisations shall clearly state the reasons therefore”.60 Despite this precautionary provision, however, the regulation leaves little doubt that the ROs were expected to work towards a maximum of harmonisation and mutual recognition, and to submit routine reports to the Commission and Member States on the progress made. While all this was going on, the Council continued pondering how to respond formally to the Commission’s 2005 proposals. After it issued its common positions in 2008, however, the decision-making process

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proceeded fairly swiftly along parallel and coordinated tracks for the separated regulation and directive. During the second reading, the Parliament continued to argue for strengthening the obligations of EU governments when exercising their flag state rights. But few of these suggestions made it into the final directive. The main reason was probably not so much disagreement on substance but more that both the Commission and the Member States preferred to channel such matters into the flag state directive which also formed part of the Erika III package. The entire package was adopted in April 2009. As far as the ROs were concerned, both the regulation and the directive formed part of the final package. 61 With the additions on mutual recognition discussed above, the adopted regulation also retained most of the other provision introduced by the Commission in 2005. These included provisions for introducing sanctions against ROs that were failing to meet the regulation’s criteria and requirements.

The EU RO Legislation Prepares the Ground Also for IMO Action Agreement on the two pieces of RO legislation which crystallised from the negotiations conducted throughout 2008 between Council, Parliament, and Commission also laid the foundation for a coordinated EU proposal to the IMO MSC. In February 2008, a submission for a separate IMO code for ROs was therefore submitted to the MSC with all EU Member States and the Commission as co-sponsors.62 What the EU did here was basically to suggest a blueprint for implementing the main elements envisaged in the forthcoming EU legislation at international level as well. The proposal, its tactics, and its content had already been under consideration for some time and had been developed in a series of informal and formal meetings between some of the EU Member States, the Commission, and IACS. The latter had started drafting an outline for such a code in early 2007 following a decision in its December 2006 IACS Council.63 IACS’ text, together with drafts and input from several EU Member States as well as the Commission, gradually led to the MSC proposal presented a year later. In terms of tactics, a discussion took place over whether IACS, the EU, or the USA should put the proposal to the IMO, but it was ultimately agreed that the most appropriate approach would be for all EU Member States and the Commission jointly to co-sponsor the proposal

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and for Denmark to spearhead the MSC discussions on the EU’s behalf.64 The initiative towards the IMO was therefore very much a concerted public–private effort to build on the EU rules and make them global. In many ways, this approach was also consistent with policy goals pursued by the EU for years. But it was also an important element in forging the final compromise on the entire third maritime safety package. The EU’s forceful initiative met quite a lot of initial resistance at the IMO. Several leading flag states argued that a new IMO instrument of this kind would represent little change, since many details of the RO role had already been formalised in conventions such as MARPOL, SOLAS, and the Load Line. But after considerable debate, where several delegations aired their frustration, the MSC reached an agreement and added the EU proposal to the FSI work programme.65 And the RO issue was not entirely novel in the FSI. It will be recalled that one of the first tasks for the newly established sub-committee back in 1993 was to draft a text adopted by the IMO assembly as resolution A.739(18) that same year. The need to assess the quality of ROs and classification societies in a more systematic way had also been highlighted earlier, notably by the fatal sinking of Leros Strength off Norway in 1998. Both the accident investigation reports by coastal state Norway and flag state Cyprus identified serious weaknesses in the performance of the classification societies involved.66 Following the EU’s proposal for building on resolution A.739(18) and turning its content into a mandatory RO code, the FSI was mandated to develop a complete draft and present it to the MSC within two years (before the end of 2010).67

Both the EU and the IMO Moves to Straighten-up Flag State Implementation Two proposals in the initial 2005 Commission package were aimed at shoring up the maritime administrations in the EU. The first of these suggested the adoption of a directive on mandatory EU compliance with IMO flag state requirements.68 The proposal was driven by both internal and global motivations. As demonstrated by this study, the Commission and the Member States had already spent years calling for the adoption of a mandatory IMO instrument to secure flag state implementation, preferably with some form of accompanying audit scheme. As a first step towards

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this goal, the engagement by EU Member States back in 1997 had been instrumental in the adoption of IMO resolution on flag state implementation.69 By the time the Commission presented its proposal for mandatory EU rules, further progress had been made at the IMO, where there now seemed a real chance of turning that resolution into a binding IMO flag state code soon. It also seemed likely that such a code would be accompanied by a complementary audit scheme for assessing the performance of member states’ maritime administrations. In anticipation of this, the Commission’s proposal was based on the draft IMO texts and aimed at making these mandatory for EU Member States through EU legislation. As a bonus, the Commission thereby also eyed an opportunity to establish a stringent and manageable levelled playing field between EU maritime administrations, something which seemed imperative now that two open registries—Cyprus and Malta—had become full EU members.70 The second Erika III proposal concerning flag states dealt with the issue of marine accident investigation. Here again, the Commission had pointed for years at the many flag states globally which demonstrated a lax attitude towards conducting serious accident investigations with vessels in their registers. Partly for this reason, the IMO had also embarked on a process aimed at creating a mandatory code covering that issue, building on the principles of IMO resolution A.849(20) on a code for the investigation of marine causalities and incidents from 1997, as further updated in 1999.71 To speed up a full revision process and prepare for mandatory enforcement of it in the EU, the Commission therefore presented a proposal at the European level reproducing as anticipated most of the substance of the anticipated IMO code.72 The code was adopted by the IMO in 2008 and entered into force two years later.73 In Brussels, the EU directive was subsequently amended before final adoption to bring it fully into line with the new IMO requirements. It accordingly became mandatory for EU Member States to carry out technical investigations after maritime accidents involving vessels under their flags, to report properly and to act on the findings. Member States also had to ensure that marine casualty or incident investigations were conducted by an impartial and dedicated permanent body and ascertain that these would cooperate well across national borders—including with authorities of non-EU states. The directive also ensured that EMSA would be brought firmly into these processes.

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The Significance of the EU Anti-competition Investigation of IACS In late January 2008, whilst IACS chair Tor E Svensen and permanent secretary Richard Leslie were attending meetings in Asia, lightning struck in Europe. Early in the morning of the 29th, the head offices of the association’s European members—BV, DNV, GL, LR, and RINA—and of its secretariat in London were subject to simultaneous and unannounced inspections, or “dawn raids”, by the EU and EEA competition authorities. According to a memo released to the press that morning, the Commission had reason to believe that the societies and their association had violated European competition rules.74 In a brief comment to Lloyd’s List the same day, the spokesperson for the Commission’s competition directorate (DG COMP) provided a tiny bit more insight when he reported that the classification societies had been targeted by the competition authorities because of suspicions that they had been engaging in “anti-competitive business practices […] that means cartels”.75 According to Paulsen, who has examined the DNV archives—including board notes—related to the competition case, the inspectors conducted widespread searches in files and archives and removed voluminous documentation.76 Back in their offices, the investigators—in line with normal procedures—scanned and scrutinised the seized documents, not least for certain predefined search words or phrases. In the IACS case, these reportedly included the word “membership” and the two terms “common rules for tankers and bulk carriers” and “transfer of class”.77 The dawn raid and the subsequent searches, which went on for two days, came as a severe shock to IACS and its members. Leslie and Svensen (who was head of DNV’s maritime activities) immediately aborted their meeting programme in China and engaged in frantic phone conversations with IACS’ Brussels advisers and others to find out what was going on and how best to handle the situation. One immediate outcome was to set up a meeting for Leslie and Svensen with world-renowned competition law specialist Lowells as soon as they were able to get back to Brussels. The firm was subsequently hired and Matthew Levitt, Lowells’ marine competition law specialist, took on the job of helping to bring the case to the best possible conclusion for IACS and its members.78 Meanwhile, other parts of the maritime industrial cluster observed the unfolding events with awe. Typically, shipping weekly TradeWinds published a commentary a few

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weeks after the dawn raid where it more than hinted that “it could be beneficial for a torch to be shone into the dark corners of this vital sector”.79 The case was open for almost a year and a half, and the negotiating process was painful for IACS and its members. Both the Commission and IACS kept their cards close to their chests, but some information on the processes leaked to the press in February 2009 when it became known that one of the concessions IACS was considering was to scrap its long-­ standing code of ethics. Svensen referred to the association’s legal advice when he was criticised in the media for going too far in “pleasing Brussels”.80 From the very start, Bob Somerville, chief executive of the ABS, was very vocal in expressing his opinion that the Commission’s competition campaign would erode safety at sea by “turning IACS into a loose trade association […] so diluted as to be largely irrelevant”.81 At around the same time, speaking at a meeting with the International Union of Marine Insurers (IUMI), whose members were eager to know whether they could count on IACS remaining a quality label for them as insurers, Somerville somewhat cryptically said, “It is my personal view that IACS cannot and will not continue in its present form”.82 The competition case was wrapped up in June 2009. Neither IACS nor any of its members were found guilty of acting directly like a cartel. However, the Commission had concluded that aspects of their behaviour amounted to an infringement of EU competition rules. In order to get the case settled, IACS therefore had to agree to a number of commitments to guide its future activities. Collectively, these would affect not only the association’s daily work, but also its very raison d’être. Membership criteria were altered to establish only “one single class of membership”, based on guidelines published as part of the commitment. Furthermore, participation in the association’s technical working groups and committees became open to all—including non-members—and the outcome of their work was to be publicised in a way which made it accessible to all interested parties.83 The severity of the competition case increasingly manifested itself in the aftermath of the settlement. To start with, the agreed changes paved the way for a wider membership than initially envisaged by IACS. This gradually opened a renewed and widening gulf between IACS members, laying the foundations for a revival of old fault lines between the “super-­IACS” players with deep knowledge and dedicated resources versus “the others”. Second, the whole affair spurred internal and partly personal conflicts and distrust between IACS’ council members along challenging new

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dimensions. The most immediate of these erupted between the European members and those in other parts of the world. While the Europeans generally felt the need to re-establish a good working relationship with the EU authorities and the Commission’s maritime safety unit, the ABS engaged in a high-profile and broadening conflict with the EU.84 IACS therefore came out of these processes as a weakened association. And paradoxically, the main aspects on which it had to give in to the EU’s competition authorities were exactly the same features it would rather have wanted to strengthen in order for it—and its members—to respond adequately to the increasing demands of EU maritime safety legislation for heightened quality, increased cooperation, and mutual recognition. It seems plausible to conclude that efforts to enhance global maritime safety had suffered a blow.

Towards EU-IMO Convergence on the Rules of the Game Ever since the EU established its maritime safety strategy in 1993, an important element had been to push and pull the IMO towards introducing more ambitious and binding legislation at the global level. As demonstrated by this study, that component in the strategy had been sustained over the decades, although its pace and intensity varied not least in accordance with external shocks. With the adoption of the third maritime safety package—or the Erika III—the EU had come a long way through skilful application of the instruments available in its regulatory toolbox. But the potential for making a lasting imprint on the international regulatory regime had still not been fully tapped. Following the Council’s first-reading position on the maritime package in 2008, the EU-sponsored submission to the IMO for a mandatory RO code therefore became a ‘final’ priority track for EU action. As mentioned earlier in this chapter, the EU’s IMO submission initially met considerable opposition in the MSC, where a number of flag states questioned the very need for such an IMO instrument.85 Led by Panama, many argued that the work which was well underway towards the adoption of an IMO Code for the implementation of mandatory IMO instruments (later to be known as the Triple III Code) made the EU initiative superfluous. Following intense debate and with a narrow majority, the MSC nevertheless decided to endorse the EU proposal and put it on the agenda as a high-priority

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item for the FSI’s 17th session in April 2009. Some of the opposition arguments were undoubtedly sincerely felt. Equally, however, it is obvious that many IMO Member States’ patience with what they saw as an overly self-confident and ever-pushier EU was now wearing thin. These sentiments became utterly clear as the FSI embarked on detailed discussions. When its 17th session opened, numerous documents commenting on the EU proposal had been submitted by a wide range of IMO members. Assessing these and considering the way forward, the FSI chair sought to facilitate further discussions by putting two requests to the IMO secretariat. The first invited it to identify all relevant existing IMO requirements and recommendations related to the ROs and present them in a single document. Secondly, the secretariat was requested to conduct a gap analysis identifying areas which had not yet been adequately addressed and where further action might have to be invited.86 While supporting these suggestions from the chair, the US delegation drew attention to the anticipated third revision of the EU legislation on common rules and standards for ship inspection and survey organisations.87 The Americans pointed in particular to the draft article 10, which dealt with mutual recognition of class certificates for materials, equipment, and components (CMC). Here, the EU rules opened the way for their application to non-EU registered ships, something which the Americans found unacceptable and warned against.88 These concerns, which impinged on the international regime’s core concept of flag state sovereignty, were shared by many at the IMO.89 After heated discussions, and acknowledging the clear mandate received from the MSC, the sub-committee nevertheless concurred with the chair’s proposed way forward. Tacitly, it was also agreed that a dedicated correspondence group might have to be appointed in order to advance these technically and politically complex matters. However, the concerns and reservations aired by the Americans against allowing the RO code to develop into a blueprint for the forthcoming EU legislation set the tone for the ensuing processes and their outcome. To facilitate the IMO part of the processes, an ad hoc working group was formed to get matters moving before a formal correspondence group could be established with a mandate to develop full draft codes. Coordination of that important task was entrusted to the USA. After several rounds of intense negotiations, it submitted the correspondence group’s report and draft recommendations to FSI 20, which took place in December 2011.90 Despite general endorsement by the sub-committee,

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two more years were needed to complete the process, mostly because a number of changes had to be made to several other key IMO conventions to clear the ground for the new RO and Triple III codes.

Summing Up and Concluding Remarks, 2005–2015 The two new IMO instruments acknowledged—and reflected—principles which had long been pursued by the Europeans, namely that effective flag state implementation was also the prerequisite for efficient control of the ROs. And vice versa—unless flag states respected the internationally agreed rules, it would be virtually impossible for quality-minded ROs to do their job properly on behalf of flag states. The Triple III code was designed to serve as the audit standard for the accompanying IMO flag ­state audit scheme, which aims to provide IMO Member States with a comprehensive and objective assessment of how effectively they are administering and implementing the mandatory IMO instruments.91 And, to assist in achieving harmonised and consistent global implementation of the Triple III requirements, the IMO adopted new rules in parallel concerning ROs (the RO code). Like the EU legislation, this established rules and standards for the assessment, authorisation, and oversight by IMO Member States of their respective ROs.92 With the adoption of the third maritime safety package in 2009, followed by the two IMO Codes in 2013 and their subsequent entry into force in January 2015, the EU’s maritime safety policy and the international regime largely converged. Through a combination of skilful application of the Brussels Effect and an intense period of institutional interaction, the EU had in many ways achieved what it set out to accomplish with its maritime safety strategy in 1993. However, the international rules did not become exact copies of the 2009 EU rules, either on flag state implementation or on ROs. Hectic activity on the European side therefore preceded the EU Member States’ joint accession to the IMO instruments. As a first step, the Council agreed in May 2013 on a joint approach to the new IMO instruments, stating that: With the exception of the areas of discrepancy with Union law, the two draft Codes must, on the whole, be considered a positive development in so far as they will establish high global standards for the activities of flag States and

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recognised organisations alike. […] The Union should therefore support the adoption of both Codes as mandatory instruments of the IMO.93

In addition, and because of the discrepancies mentioned above, two EU implementation documents had to be agreed by the Council in December 2014. These two singled out aspects where accession to the new IMO codes by EU Member States would be accompanied by reservations. Most prominently, the EU insisted on its right to enforce stricter— and in some respect more detailed—criteria than the equivalents specified in the codes.94 The overarching reason why the EU felt a compelling need to make such reservations was that, while its legislation (both directive 2009/15/EC and regulation 391/2009) drew a clear distinction between “statutory certificates” and “class certificates”, the IMO codes did not. The EU continued to insist that statutory certificates are documents issued by the classification society as an RO—on behalf of the flag state—whereas classification certificates are issued in accordance with private rules, procedures, and conditions decided by the society itself. As such, the latter are private contractual arrangements to which the flag state is not a party.95 The EU therefore maintained the view that these two types of activities by the classification societies must be kept apart. This division was further accentuated by DG COMP’s case against IACS. Whereas the DG responsible for maritime transport and safety had pushed hard for years to ensure that only the best-performing classification societies and ROs should be allowed to operate, DG COMP was now driving a wedge into the IACS members ability to cooperate towards that aim. Since this distinction is more blurred in the IMO instruments, several other key features of the EU rules are not fully reflected in these codes either. Further reservations had therefore to be made by the EU, including on how to define an RO. Last but not least, the EU reserved the right to demand from the ROs that they ensure the same quality across the entire fleet in their class regardless of flag. The latter remained the case under EU legislation.96 Finally, the IMO instruments did not match the EU rules on mutual recognition of certificates in general, and of CMCs in particular. On this point, therefore, the EU also flagged its collective reservation.97 With the entry into force of the codes, however, the big issues identified over the preceding decades as the international regime’s main weak points had been addressed. Greater transparency had been achieved at an international level, notably through the flag state auditing scheme which

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was soon to become mandatory.98 In addition, more stringent rules had been established governing both flag states and ROs. Through an intense period of two-way institutional interaction, the international regime had been seriously altered but not fundamentally changed. It remained dependent on a blend of private and public regulation, where the role of the classification societies had been brought more clearly to the fore and regulated. The EU had played a significant role in these changes but also ended up as a guarantor of the regime. Meanwhile, the EU had established itself as a well-equipped and coordinated actor in the regime. And, regulating the ROs—and through this channel the classification societies themselves—had become a central tool for exercising its influence. However, the competition case against IACS on the one hand, and the several outstanding issues related to the implementation of the EU’s own RO regulation on the other, implied that new uncertainties and conceivable contradictions were surfacing on the path towards a maritime safety and environmental governance regime fit for the twenty-first century. Some concluding thoughts on this will be left for the next and final chapter of this study.

Notes 1. Report to the maritime safety and marine environment protection committees, document FSI 13/23, 31 March 2005: 33–39. 2. Report to the maritime safety and marine environment protection committees. 3. “A flag to salute”, Lloyd’s List, 24 March 2004. 4. See, for example, “Focus of ship safety debate shifts towards the role of flag states”, Lloyd’s List, 19 April 2004, and IMO documents MSC 81/25, 1 June 2006. 5. Third package of legislative measures on maritime safety in the European Union. 6. One concerned implementation by EU Member States of the IMO’s Athens Convention on passenger (ship) liability. The other suggested additional European legislation to ensure uniform and adequate compensation in cases of environmental damage. 7. At the December 2002 Transport Council meeting, see Third package of legislative measures on maritime safety in the European Union, COM(2005) 586 final, 23 November 2005, p. 4. 8. For the International Chamber of Shipping’s (ICS) publication, see the Shipping Industry Flag State Performance Table published annually on the organisations’ website.

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9. Third package of legislative measures on maritime safety in the European Union. 10. LIU Nengye and Frank Maes, “The European Union and the International Maritime Organisation: EU’s External Influence on the Prevention of Vessel-Source Pollution,” Journal of Maritime Law and Commerce 41, no. 4 (October 2010): 581–594. 11. Council decision 77/587/EEC of 13 September 1977 setting up a consultation procedure on relations between Member States and third countries in shipping matters and on action relating to such matters in international organisations. 12. “Procedural framework for the adoption of Community or common positions for IMO related issues and rules governing their expression in the IMO”, Commission staff working document, SEC (2005) 449, 1 April 2005. 13. Eva M.  Heims, “Regulatory Co-Ordination in the EU: A Cross-Sector Comparison,” Journal of European Public Policy 24, no. 8 (2017): 1116–1134. 14. As in so many other aspects of EU policymaking, a continuum of various forms of coordination takes place, ranging from the very informal to the entirely formal. 15. “Commission v Greece”, ECJ case C-45/07, 12 February 2009. 16. The IMO International Ship and Port Facility Security Code (ISPS) was negotiated and agreed as a result of the 9/11 terrorist attacks in the USA. 17. The Treaty of the European Union, article 4(3). 18. ECJ judgment case C-45/07, paragraphs 30 and 31. 19. Author’s interview with Fotis Karamitsos, October 2018. 20. See for example ECJ case C-399/12—Germany v Council, 7 October 2014. 21. E.  Neframi, “The Duty of Loyalty: Rethinking Scope through Its Application in the Field of EU External Relations,” Common Market Law Review 47 (2010): 323–360; and Federico Casolari, “EU Loyalty and the Protection of Member: States’ National Interests a Mapping of the Law,” in Between Compliance and Particularism: Member State Interests and European Union Law, Marton Varju, ed., (Switzerland: Springer International Publishing, 2019): 49–78. 22. In June 2013, the then Irish presidency of the Council issued a “non-­ paper” (informal discussion paper) to the Council working party labelled “EU Coordination at the IMO”. The document summarised the procedures of all aspects of coordination. The document W.  Doc. 2013/45, dated 20 June 2013 was never formally adopted by the Council but provides yet another tacitly agreed procedural “guideline”. 23. Christer Gulbrandsen, “Navigating from Conflict to Working Arrangement: EU Coordination in the International Maritime Organisation,” Journal of European Integration 35, no. 7 (2013): 749–765.

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24. Gulbrandsen: 758. 25. The number of issues subject to joint community competence is steadily increasing. In the environmental field; in particular, the EU has adopted much legislation of relevance to international shipping. Regulation of SOx and NOx emissions in European coastal waters is an example. See also the 2013 Irish Council presidency “non-paper”. 26. Although most IMO issues will fall under the DG MOVE’s remit (maritime safety), issues related to the environment, emissions to the air, climate change, social affairs, security, and so forth increasingly mean that a fairly large number of DGs might become involved. 27. A “non-paper” is an informal document, usually without explicit attribution, presented in negotiations behind closed doors on an issue. Nonpapers are one of many tools used by diplomats and negotiators. 28. An issue’s “EEA relevance” refers to whether the EU legislation in question can be considered to be part of the internal market and must therefore also to considered part of the agreement on a European Economic Area (EEA). 29. Gulbrandsen: 757, Nengye and Maes: 590, and input from interview with Richard Mason, May 2019. 30. See, for example, the editorial on “Blocking the bloc”, Lloyd’s List, 8 March 2007. 31. Such points of view are understandable, given the fact that at the IMO each country commends one vote each. Whereas for example China or Russia will have one vote, a coordinated EU could muster up to 28 votes, and 27 now that the UK has left the Union. 32. Judith van Leeuwen and Kristine Kern, “The External Dimension of European Union Marine Governance: Institutional Interplay between the EU and the International Maritime Organization,” Global Environmental Politics 13, no. 1 (February 2013): 69–87. 33. Statistics based on Webaccounts.imo.org 34. On this point too, things have evolved. Today the Commission seems more likely to be visibly coordinating – and even sometimes speaking on behalf of – Member States. And once again such procedures seem more likely to occur in the environmental field than on the more “classic” maritime safety issues. 35. The EU had also entered into maritime agreements with a number of countries around the world. 36. Regulation 1406/2002 establishing a European Maritime Safety Agency, art 1. 37. Martijn Groenleer, Michael Kaeding and Esther Versluis, “Regulatory Governance through Agencies of the European Union? The Role of the European Agencies for Maritime and Aviation Safety in the Implementation

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of European Transport Legislation,” Journal of European Public Policy 17, no. 8 December (2010). 38. “IACS alarmed over Barrot threat”, Lloyd’s List, 7 February 2005. 39. Paraphrased from an internal IACS paper. 40. US energy company Enron went bust in 2001 and rapidly drew Arthur Andersen LLP, its auditors, down with it. For further information, see, for example. 41. Third package of legislative measures on maritime safety in the European Union, COM(2005) 587 final, 23 November 2005: 4. 42. Deloitte, EY, KPMG, and PwC. 43. Third package of legislative measures on maritime safety in the European Union: 31. 44. Council Directive 94/57/EC, article 15.1. 45. Third package of legislative measures on maritime safety in the European Union, article 20: 35. 46. Several flag states – led by the USA – were later (2010) to contest the EU’s right to board vessels under their flag without prior consent from the flag state. 47. Ref the treaty’s co-decision procedure. 48. The author served as Brussels adviser to IACS at the time and worked with DNV’s Terje Stålstrøm during these processes. 49. Text adopted by Parliament, 1st reading/single reading, 2005/0237B(COD)—25/04/2007. 50. Proposal for a directive on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations, COM(2005) 587 final, 23 November 2005, article 21: 37. 51. The conciliation committee represents the final stage in the co-decision-­ making procedure described above. It is designed to reach a final agreement. See also the wording on this point in Council regulation 391/2009/ EC, article 11. 52. Making the first part a regulation also meant that the wording of the rules in the English text would be directly applicable to and enforceable for all EU-recognised organisations in the courts that thereby avoided the ambiguities which could always arise from incorporation in the national legislation of the respective Member States. 53. This description of the CMC process and its rationale is taken from Irene Wieja, Classification societies in their public and private safety function and the implications of the provision of mutual recognition of class certificates, Art 10(1), Regulation (EC) 391/2009 of 23 April 2009 under safety, economic and legal aspects, (Unpublished) master’s thesis, Matr no 1797, Hamburg School of Business Administration, 16 June 2014. 54. Council Directive 96/98/EC of 20 December 1996 on marine equipment.

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55. The IACS perception of the issue can be documented from its presentation at the seventh annual shipping tripartite meeting between global associations representing classification societies, shipowners, and shipyards in Beijing on 8–9 November 2008 (unpublished). 56. EMEC, representing the majority of ship’s equipment manufacturers in Europe, later merged with the Community of European Shipyards Association (CESA) to become the Shipyards & Maritime Equipment Association (SEA Europe). 57. Weja: 23–24. 58. Paraphrased from an unpublished internal IACS position paper dated 12 June 2007. 59. “EMEC welcomes EP Report”, The Motor Ship, 30 November 2006. 60. Council regulation 391/2009/EC, article 10.1, para 2. 61. Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations and Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations. 62. Development of a code for recognised organisations (RO code), submitted in the name of all 27 EU Member States and the Commission, MSC 84/22/13, dated 6 February 2008. 63. Author’s interview with Sverre J Dahl, September 2020. Dahl acted as General Policy Group GPG chair on behalf of DNV at the time and was present at IACS Council’s 54th session, as the GPG normally is. 64. Interview with Sverre J Dahl and the author’s own notes from meetings at the time. 65. Report of the maritime safety committee on its eighty-fourth session, document MSC 84/24, 23 May 2008: 104. 66. Investigation by the Norwegian Maritime Directorate into the sinking of the bulk carrier Leros Strength, FSI document FSI 9/INF.5, 17 November 2000. 67. Report of the maritime safety committee on its eighty-fourth session, document MSC 84/24, 23 May 2008, p 104. 68. Proposal for a directive of the European Parliament and of the Council on compliance with flag state requirements, COM(2005) 586 final, dated 23 November 2005 (adopted in 2009 as directive 2009/21/EC). 69. IMO resolution A.847(20), 27 November 1997, on guidelines to assist flag states in the implementation of IMO instruments. 70. COM(2005) 586 final, p 3. 71. IMO resolution A.884(20), 25 November 1999.

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72. COM(2005) 590 final, finally adopted on 23 April 2009 as directive 2009/18/EC of the Parliament and the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector. 73. Code of international standards and recommended practices for a safety investigation into a marine casualty or marine incident (causality investigation code), MSC.255(84), adopted on 16 May 2008. 74. “Antitrust: Commission has carried out inspections in the ship classification sector”, European Commission/Press corner, MEMO/08/65, Brussels 30 January 2008. 75. “Class faces cartel probe”, Lloyd’s List, 29 January 2008. 76. Paulsen. Building Trust: The History of DNV 1864–2014 (Lysaker: Dinamo Forlag, 2014): 425. 77. “Class raids ‘focus on IACS links’”, Lloyd’s List, 15 February 2008. 78. Since 2008, Lowells has merged and changed its name several times. But the firm was hired under that name and Levitt led the case to completion in 2009. 79. “Time for Class to show some class”, TradeWinds, 8 February 2008. 80. “IACS scraps Code of Ethics”, TradeWinds, 27 February 2009. 81. “ABS Chief slams Brussels over class clampdown”, Lloyd’s List, 18 September 2008. 82. “IACS scraps Code of Ethics”, TradeWinds, 27 February 2009. 83. Notice published pursuant to article 27(4) of Council regulation (EC) no 1/2003 in case 39.416 – ship classification. 84. In May 2010, a group of very significant flag states led by USA and co-­ signed by China, Japan, Panama, Liberia, and the Marshal Islands wrote a high-level letter to the Commission protesting against the “extraterritorial” aspects of the RO regulation. See, for example, “Flag states attack Brussels over classification society legislation”, Lloyd’s List, 11 May 2010. 85. Report from the maritime safety committee on its eighty-fourth session, MSC 84/24 of 23 May 2008: 104. 86. Many of these requirements were dispersed across several IMO conventions and instruments, see Report to the maritime safety committee and the marine environmental protection committee [from FSI 17], FSI 17/20, 27 April 2009: 46. 87. Finally adopted as EC regulation 391/2009 in December 2009. 88. Report to the maritime safety committee and the marine environment protection committee [from FSI 17], document FSI 17/20, 27 April 2009: 46–47. See also comments above on joint flag state letter to the Commission, sent a year later in May 2010. 89. Report to the maritime safety committee and the marine environment protection committee [from FSI 17], document FSI 17/20, 27 April 2009: 47–48.

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90. Development of a code for recognised organisations, report of the correspondence group, FSI 20/13, 12 December 2011. 91. IMO Instruments Implementation Code (Triple III Code), adopted as A.1070(28), 4 December 2013. Flag state audits became mandatory under the scheme from 1 January 2016 when all necessary amendments to the many mandatory instruments had been completed. 92. The IMO Code for Recognised Organisations (the RO Code) was adopted by resolutions MEPC.237(65), dated 17 May 2013 and MSC.349(92), dated 21 June 2013. Together, these two replaced resolutions A.739(18) on Guidelines for the authorisation of organisations acting on behalf of the Administration and A.789(19) on Specifications on the survey and certification functions of recognised organisations (ROs) acting on behalf of the Administration. 93. Council decision 2013/268/EU of 13 May 2013 on the position to be taken on behalf of the European Union within the International Maritime Organisation (IMO) with regard to the adoption of certain codes and related amendments to certain conventions and protocols. 94. Commission implementing regulation (EU) no 1355/2014 and Commission implementing directive 2014/111/EU, both dated 17 December 2014. 95. See, for example, Commission implementing regulation (EU) No 1355/2014, recital 17. 96. Commission implementing regulation (EU) No 1355/2014, recitals 18, 19 and 20. 97. Commission implementing regulation (EU) No 1355/2014, recitals 22 and 25. 98. The IMO Member State Audit Scheme (IMSAS) commenced as a voluntary Scheme in 2006 and became a treaty obligation in January 2016.

CHAPTER 7

EU Maritime Safety Policy and the International Regime, 1975–2015: Summing-up and Conclusions

On the Longer Patterns of History In the early 1970s, the international maritime regime of the post-1945 era was more or less intact. Having developed over 200 years centred on the interests of the British empire, as suggested by the hegemonic stability model outlined by Keohane, shipping governance after 1945 was reorganised into an institutionalised, multinational component in a largely American-led post-war reconstruction effort.1 Whereas Gold sees the pre-­ war regime as under British hegemony, Cafruny argues that the post-war IMCO-centred maritime regime was sustained as long as the hegemon— now the USA—perceived this to be in its interest.2 Consequently, despite differences in concepts and choice of words, both Gold and Cafruny explain the maritime regime in terms of hegemonic stability. The regime has survived the hegemons. But the truth is that, since the IMCO convention was agreed upon in 1948 and confirmed by the delayed inauguration of this organisation’s permanent secretariat in London as much as 10 years later, fault lines between the regime’s actors were already visible, manifold, and potentially profound. Tensions existed between the traditional western maritime nations, with their shipping fleets typically tied to national flags via several genuine links, and the increasing number of open registries with their steadily growing fleets. Strains emerged between those who felt that the governance structure should be confined to technical © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0_7

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maritime safety issues and those who wanted to include market and market-­regulation issues as well. And tensions were evident between private self-regulatory interests on the one hand and those favouring stronger statutory involvement on the other. Despite these divides, the expectations of the international regime’s main actors largely converged until the late 1970s and early 1980s on the principles, norms, rules, and decision-making procedures governing it—which is what it takes for a regime to exist.3 This convergence was manifested by the amendments to the IMCO convention at the time, which made the organisation’s decision-­ making procedures more inclusive (democratic). These changes also led to a change of name from IMCO to the IMO, reflecting the transformation from a consultative body to one engaged in developing treaties.4 Around this time, however, several of the above-mentioned strains had developed into major internal contradictions. These were manifested in diverging opinions on how to pin down the key principles and norms of the international regime—like those related to “genuine link”, “national sovereignty”, and “freedom of navigation”. In parallel, strong exogenous forces were building to challenge the regime, not least originating from public worries about the environment. These concerns were in turn linked partly to technological developments which permitted bigger vessels with smaller crews, particularly in the rapidly expanding oil transport trades. In addition, Cafruny argues, the underlying power structures he found to have underpinned the post-1945 regime came to be challenged by a US reappraisal of its national interests. America in particular, but other leading western economies as well, gradually lost interest in its earlier dominant policy goal of keeping control over a national flagged fleet. Instead, the overarching policy goal came to be sustained access to cheap supply chains.5 This in turn led to a vast expansion of the open registry system and the ensuing internal contradictions. Meanwhile, other forces were also at work. By this time, the colonial system established first and foremost around France and the UK had largely been dismantled and a concentration on political independence had been supplemented by a strong Third World movement towards release from the western-dominated economic system. The desire of nations for control of their own domestic economy and trade ushered in policies of cargo reservation and protection, which threatened not only to disrupt established patterns of trade but also to drag many of these mostly developing countries into the Soviet Union’s sphere of economic influence.

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The liberal-minded, mostly technical, IMCO-centred regime came ultimately to be challenged forcefully by alternative solutions which— while also tied to the UN system—had different or additional issues in mind. These challenges originated in shifts of the underlying power structures, manifested through the policies of the new international economic order (NIEO) and the UN Conference on Trade and Development (UNCTAD), which had even been set up with its own shipping policy department. Although both IMCO and UNCTAD were UN organisations and had much the same members, the two came to represent different sides in the old split-in preferences between a purely technical shipping regime and one with a stronger inclination towards market regulation. By the time this study begins, therefore, signs could be seen that all three types of regime-changing forces identified by Oran B Young were at work. Internal contradictions, shifts in underlying power structures, and various exogenous forces were all threatening the post-1945 maritime regime established with IMCO as its nexus.6 Until then, the role of the classification societies was not much questioned within the regime. One reason was that the internationalisation of classification services was still in its infancy. While societies such as the UK’s Lloyd’s Register and France’s Bureau Veritas had always had a significant number of foreign-flagged vessels among their clients, the norm in the 1970s was still that the societies were for the most part tied to their respective national administrations and flags. In the 1980s, this was to change dramatically, with accelerated flagging-out to open registers and significant shifts in shipbuilding capacity from west to east. With shipbuilding largely transferred to Asia, the mostly state-owned and/or controlled Asian classification societies—first Japan’s Class NK, followed successively by the Korean Register (KR) and the China Classification Society (CCS)—also entered the global market and became members of IACS.7 Most of these new entrants worked under quite different commercial terms than their older, private western peers. The gradual development of the world market in maritime classification services as a mix between private and government-controlled entities introduced an imbalance in operational terms and conditions which had not been so prominent prior to globalisation. Whereas western countries opened their markets for classification and RO services for all on the basis of certain objective criteria, the same was not the case in Asia.

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Amoco Cadiz When an embryonic EC maritime policy began to emerge from the mid-­1970s, several forces were therefore already working for change in the international maritime regime. In those early days, however, the political will of Member States for developing a joint EC maritime policy was almost totally absent—even though the Treaty of Rome made provision for creating a common transport policy. This attitude persisted and was, in many respects, reinforced in the maritime domain after more prominent shipping nations such as Denmark and the UK joined the Community in 1973. The European Commission, on the other hand, responded to the accession of these two maritime-oriented nations by pushing even harder for a common approach. Active use was made of the agenda-setting prerogatives allocated to it under the treaty, mainly by arguing along economic lines rather than with reference to safety concerns. The Commission promoted a joint approach towards third countries to protect the interests of the EC shipping industry. The rational was that the interests of individual Member States would be better defended through collective action against protectionist cargo preferences, state subsidies, and various forms of “regulatory dumping” by open-registry states. However, the problem remained that the Council had no such thing as an agreed common maritime interest. With reference to Majone’s regulatory supply and demand model, the Commission had arguably already started “marketing” its potential for providing regulation in the maritime field, but little happened owing to the lack of demand.8 The first signs that this could be seriously changing came with the sinking of Amoco Cadiz in 1978. In the wake of that event, France in particular saw an opportunity to enrol support for tightening up the international governance of maritime safety and pollution preparedness. Aware of the potential for building an alliance through the Commission, France was already behind the initiative on relations with third countries in 1975 and now also managed to bring fellow EC heads of state and government in line only a few weeks after the Amoco Cadiz incident at the Copenhagen summit of March 1978. However, the relatively bold appeal issued there for a more collective EC maritime safety policy was watered down significantly when it landed on transport-minister desks a few weeks later. The ministers and their respective national departments and maritime administrations were also those responsible for pursuing maritime interests at

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IMCO and, at that level, loyalty to the international regime still overrode the emerging and more regional perspectives expressed by heads of state. But attitudes were about to change, and the Council agreed on a couple of measures in these early days which would prove to be of particular significance years later. First, establishing a consultation procedure on relations between Member States and third countries in shipping matters laid the foundations for EU coordination at the IMO some 25  years later.9 Likewise, the directive concerning minimum requirements for certain types of tankers paved the way for a common EU approach to port state control (PSC) in the 1990s.10 When Amoco Cadiz sank, the European Parliament was still not a directly elected full-time assembly. With 78 members appointed part-time from the national parliaments of the Member States, it remained weak and marginalised.11 However, this changed radically from 1979 when the Parliament for the first time became a directly elected full-time assembly at the EC level. Most EU researchers therefore agree that this was the year when it really began evolving and gaining in relative importance.12 However, this study suggests that even before then, in 1978, the Parliament had demonstrated its ability to identify an issue with a high political temperature, analyse it and, as in the case of the post-Amoco Cadiz hearing in Paris and related Parliament resolutions, provide significant input not only to the wider EC agenda but also for its own future role. The Parliament’s reaction to the loss of Amoco Cadiz shows how this first incident in a row of “normal accidents” became what I have termed an “abnormal accident”, because it prompted a new actor to take critical interest in the regime.13 By so doing, the Parliament also laid the basis for the significant role it was to play in the forthcoming institutional interaction between the EU and the international regime. The Single European Act (SEA), which entered into force in 1987, was the first major revision of the 1957 Treaty of Rome. Amongst other things, it set the establishment of a single market by 31 December 1992 as an objective for the EC. Removing non-tariff barriers to cross-border intra­EC trade and investment was expected to provide the 12 Member States with a broad economic stimulus. To make these objectives achievable, the SEA reformed the EC legislative processes—notably by introducing the cooperation procedure. This strengthened the Parliament’s influence and extended the use of qualified majority voting in the Council to most areas relevant to the single market, including transport.

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These developments, together with the European Court of Justice (ECJ) ruling in support of the Parliament’s claim that Member States had long erroneously failed to honour the treaty’s transport provisions, had a major impact on the EU’s ability to move forward with a joint maritime policy. The treaty changes and the organisational advances, combined with the political drive towards a well-functioning internal market, brought maritime regulation onto the agenda from new and forceful angles. The 1986 maritime package represented a key change in this respect. It constituted a big step forward in terms of creating a common maritime policy and paved the way for developments to come—even though many of the shipping policy advances in the 1980s were about international competitiveness, deregulation, and efficient transport services rather than maritime safety. Meanwhile, governments were wrapping up the final high-profile round of shipping negotiations under the auspices of UNCTAD. But the resulting 1986 ship registration convention never came into force, and the European shipping nations redirected their attention from fighting the open registers to learning from their success. The age of national shipping policies was thereby approaching its end, as attention shifted gradually from promoting national domestic shipping interests to a more general and global concern over combining frictionless trade infrastructure with efficient handling of shipping’s externalities. Braer The grounding of Braer on the Shetlands in early 1993 turned out to be an epochal shift. Just a couple of months earlier, the Commission had announced its intention to initiate discussions once again on a common approach to maritime safety and environmental protection. And, when disaster struck on these pristine Atlantic shores, much of Europe proved ready for change. This time around, not only France but also Germany and the Netherlands—and even large parts of the British policy establishment—added their voices to the growing chorus of criticism of the international shipping regime. As a consequence, the days and weeks immediately following the grounding became existential for the survival of the regime itself. Key actors, both government and private, were losing faith, and the convergence around principles, norms, rules, and even the decision-making procedures in and around the IMO looked like it was about to founder.

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A great many factors influenced the corrective actions which now came to be taken. However, the immediate and decisive element which ultimately saved the regime and shored up discussions around it for years to come was the agility of the Council and the Commission’s readiness to play together with the Council. More precisely, the process was greatly assisted by two main factors. First, Denmark had coincidentally taken over the presidency of the Council just a few weeks earlier. That allowed this experienced maritime policy operator to assess the situation quickly, call an emergency meeting, and prepare the Council to adopt a carefully balanced political response only days after the accident occurred. Not only did the Council resolution of January 1993 signal innovative ideas for striking a new balance between EU policy goals and the international maritime regime, but it also played these principles skilfully over to the Commission in clear recognition of that institution’s strategic goals and regulatory priorities. Second, the Commission itself was well prepared to respond to the Council’s invitation. It had done its homework and had the very detailed answers now requested by Member States to hand. This swift exchange in the early spring of 1993 was followed first by the Commission’s March communication on a common policy on safe seas, and then by the adoption of the Council’s Safe Seas resolution a few months later. Together, these established the key parameters of a common EU maritime safety policy for decades to come. From then on, too, the remits for EU Member States as actors in the international maritime safety regime had been established. The policy invoked the strength of EU governance and combined it with continued Member State support for the supremacy of IMO rulemaking at sea. By first making IMO rules mandatory for EU Member States—and consequently legally enforceable through EU legislation—the EU addressed the lack of an enforcement capability in the international regime. With that in place, it also became legitimate for the EU to pursue the next steps. First, EU Member States were required to enforce the internationally agreed rules for all vessels entering their ports, which in turn paved the way to an enhanced and from then on mandatory Europe-wide PSC system. Because the EU represented a significant proportion of global crude oil demand in the years studied here, and the market for transporting such products by sea presupposes that a tanker should be able to ship them anywhere, very few shipowners trading internationally could afford the commercial cost of not calling at European ports. At the same time, it would be impractical for a vessel to satisfy European PSC standards only

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when calling in Europe. This effectively meant that the EU found a way to combine its market size with regulatory capacity, stringent standards and non-divisibility in order to force even non-EU flag states to comply with EU standards through a “Brussels Effect”.14 Second, the EU had secured a basis for pursuing institutional interaction with the international regime. Owing to an increasing overlap of the maritime safety issues being dealt with in both arenas, decisions taken in the source institution—in this case the EU—now started to affect the constellation of interests and decision-making process in the target institution—the international maritime safety regime—by influencing the payoffs for available options. This is what Oberthür and Gehring characterise as “interaction through commitment”.15 Last but not least, the classification societies were drawn in for the first time as a major target of and tool in the EU’s maritime safety strategy. In so doing, the EU also explicitly recognised the importance of these mostly private organisations for the functioning of the international regime. The implication was that, for this private-public governance regime to remain relevant and trusted, the classification societies would need to be better controlled. The question was how, and the answer came when the Council adopted a first directive on common rules and standards for ship inspection and survey organisations in November 1994. Most importantly, this directive established the RO concept which had first emerged in the Council’s safe seas resolution in January 1993 and was then enshrined at international level with the adoption of IMO resolution A.739(18) in November of that year.16 The idea that such organisations would have to be recognised in accordance with certain predetermined criteria in order to be eligible for work delegated by flag states was both novel and significant, and seems to have developed through a productive institutional interaction. The initial version of the EU rules left it mostly to the discretion of Member States to implement them through incorporation in national law. However, later amendments following Erika and Prestige progressively shifted the legal subject over to the ROs themselves, combined with more coordinated EU-wide oversight under the leadership of the Commission, later supported by EMSA, the expert agency set up to assist Member States and the Commission to manage the common maritime safety policy. Notwithstanding these advances, the conclusion when looking at the institutional interaction between the EU and the maritime safety regime up to the end of the 1990s must be that—despite a two-way interaction— the EU was generally more of a receiving than a source institution in terms

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of maritime safety governance. Through cognitive interaction—transfer of knowledge—the EU aligned itself with the main principles of the regime while simultaneously reinforcing them by evoking some of the EU institution’s inherent regulatory strengths.17 In parallel, the centre of gravity for the combined shipping policies of the EU Member States had started to pivot from a primarily flag state-centric view to more of a port and coastal state perspective. For the medium term, however, the EU legislation adopted with the completion of the 1993 EU maritime safety strategy led into some sort of “entente cordial” between the EU and the international regime as attention shifted from regulation to implementation, and from legislation to industry self-regulation. Erika At the end of the 1990s, the EU found itself with a comprehensive programme of new legislation on maritime safety. It had used its regulatory clout to address some of the main weaknesses of the international regime. IMO conventions had been made mandatory and enforceable for EU flags, lax implementation by other flags had been addressed through PSC, and the role of classification societies was accentuated and made subject to statutory EU instruments. Thereafter, attention shifted towards industry self-regulation, where the EU’s Quality Shipping campaign was successful in bringing the maritime stakeholders together as signatories to a quality charter which committed them all to doing their part for the common cause of raising standards. At this stage, therefore, one could conclude that the EU was aligned with and had in many ways strengthened the hybrid private–public regime of maritime safety governance more than it had challenged its foundations. With Erika, however, all the cards were once again thrown in the air. The Commission, under the leadership of François Lamoureux, director general of the transport department (DG TREN), responded to the Erika wreck by regaining the initiative and launching yet another ambitious regulatory programme. It was very quickly back on the supply side. In the EU organisational setup, the Commission plays both a political and an administrative role. During the months immediately preceding Erika, significant personnel changes had taken place in both respects as Loyola de Palacio took over the political side and Lamoureux the administrative. Both were distant from the maritime world, and their expectations on how maritime safety should be governed were from the outset far from

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converging around the principles, norms, rules, and decision-making procedures which characterised the international maritime regime. However, they were two people with strong personalities and opinions who happened to find themselves in key positions when Erika was lost. This made it possible for them to voice and take the lead on heretical questions from outside the regime. That said, they would not have been able to exercise the influence they did without tapping into a pre-existing Commission culture involving a preference for regulation when responding to mounting dissatisfaction amongst several European governments, the Parliament, and the general public on the way maritime safety and environmental protection were governed. It was characteristic of the post-Erika situation that, while many of the regime’s long-standing actors focused on locating the causes on the vessel itself—as yet another “normal—accident”—the French government’s Erika investigation and the Commission’s regulatory follow-up were bent on exposing and addressing what they increasingly saw as a failure of the regulatory regime per se.18 With this development, a new and forceful actor—the Commission and ultimately the EU—was moving into the heart of the regime itself. And in so doing, these post-Erika debates developed along many of the fault lines which were already evident in the international shipping regime at the end of the twentieth century.19 France was instrumental in pushing maritime safety onto the European agenda after Amoco Cadiz, and the French authorities were also actively involved following Braer. It was with Erika, however, that France really had its moment—and seized it. Like so many previous tanker accidents, Erika happened off the country’s coast and directly affected people and nature there more than anywhere else. These repetitive pollution events had already lifted tanker safety to the top of the national political agenda several times before. With Erika, this happened not only again but also in a way which brought in a wider set of stakeholders—including from the private sector. The absence of the flag state, the owner, its classification society and any other responsible party implicated by the Erika pollution disaster gave the French authorities a golden opportunity to determine— and drive—the maritime safety policy agenda as never before. The preliminary investigation report, issued after less than a month, both grabbed attention and supplied all the issues for discussion. The fact that French oil major Total Fina was the charterer helped to drive the process into a more regime-encompassing discussion. Most importantly, however, France took

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over the rotating presidency of the Council from 1 July 2000 and had now prepared well for this role. It is very normal for the incoming presidency and the Commission to work intimately together in preparing the upcoming Council agenda. This study cannot conclude that Lamoureux was more receptive to French input than another person in his place would have been. However, it would not be going too far to suggest that it can hardly have been unhelpful for the French government to have a highly experienced countryman steering the Commission’s own response.20 In any event, France acted swiftly while acknowledging that not every aspect of the issue could be solved in isolation at regional, national, or international levels. Rather, a strategy was developed where one level built on the other and where the private sector was enrolled as part of the solution. Prestige The two regulatory packages issued, discussed, and adopted in the wake of Erika moved the institutional interaction between the EU and the international maritime safety regime into a new phase, and were now truly embroiled in a two-way dynamic, where the EU became just as much a source institution in the interaction as a receiving one. From having based its maritime safety strategy on adherence to and implementation of the IMO’s agreed rules and procedures, the EU now threatened to abandon that principle—as demonstrated primarily by its go-it-alone strategy on phasing out single-hull oil tankers earlier than the IMO had planned. This threat was received and understood as serious enough by the other regime actors for them to accept an IMO compromise, where the EU got its way—not once but twice, since the challenge came first as part of Erika I and then in Erika II. The latter package also incorporated another challenge in the form of the creation of EMSA.  This was, in first instance, more EU-internal in character and therefore generated less debate on the international scene. Seen in perspective, however, it was probably of greater significance because it opened the way to a crucial institutionalisation of the EU’s ability to engage as a serious long-term actor in the regime. Following Prestige, matters got worse. Southern Member States led by Spain and France were challenging the law of the sea convention (UNCLOS), and the Commission subsequently encouraged the Council to consider renegotiating some of the key clauses concerned. By then, the Commission and several Member States had had enough of these

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recurrent tanker accidents which, every time they occurred, seemed to highlight yet another weakness in the regulatory regime. With EMSA up and running and a Parliament engaged through its Mare committee, the EU was finding its feet as a maritime safety regulator. This also meant that the EU as such became engaged much more actively in institutional interaction with the international regime. This can be seen at a high political level in the increasing number of encounters between the IMO secretary general and the transport commissioner, the Parliament’s mature participation in the discussions on many of the key topics on the agenda and, not the least, the impact EMSA and the COSS gradually had on the coordination of Member States in relation to the international regime, its rules and regulations, and the IMO itself. The substance in all these processes centred increasingly around some fundamentals related to flag state responsibility and implementation, including investigating accidents involving vessels under their flag, transparency and data-sharing more generally, and tightening up international monitoring of the role and performance of classification societies acting as ROs. Throughout the 10-year period from the Prestige accident in 2002 to the adoption of the IMO Triple III and RO codes in 2013, the institutional interaction between the EU and the international regime dominated the global maritime safety debate. From a high-profile EU challenge to many of the key parameters of the regime in the early years of the new millennium, the two institutions increasingly converged as 2013 approached. Several factors contributed. As EU Member States gradually transferred competence from national to EU level in the maritime safety domain, EU institutions gained in knowledge and self-confidence. One consequence was that the EU gradually came to realise that, to achieve its policy goals in the maritime safety domain, its best bet would be to work with and not against the international regime. However, this was far from a one-way process where the EU gradually accepted the rules of the game in a role as a target institution. Rather, it significantly affected the maritime safety regime through a blend of “cognitive” and “impact-level” interaction.21 Cognitive, because the EU was able to apply its combined knowledge and regulatory skills in making a significant impact on the IMO agenda and its outcomes in form of the 2013 codes (which entered into force in 2015). This was particularly true for the wider goal of tightening global flag state compliance, which materialised with the Triple III code. Impact-level interaction became more prominent in the case of the RO regulation, which resulted in the IMO

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RO code. On this issue, the adoption of an EU instrument as far back as 1994 had a spillover effect on the international regime owing to the “functional interdependence” between RO activities for EU and non-EU flag states. In other words, this is where the Brussels Effect became most visible by being re-enforced through institutional interaction.22 Little by little, therefore, the EU’s expectations began to converge around principles, norms, rules, and decision-making procedures which were roughly similar to those applied by other key actors in maritime safety governance.

Private and Public Governance in the International Maritime Regime Over the period covered by this study, public oversight of maritime safety and environment gradually shifted from flag state to port- and coastal s­ tate governance. Formally, flag states kept their sovereign rights and responsibilities for vessels under their respective flags, but years of lax implementation and control had eroded trust in both commitment and abilities of flag states. As ship registration progressively moved towards a commoditised service along the lines of offshore banking and finance, the need for alternative regulation and governance measures which addressed weakening flag state governance was manifested.23 New forms of control mechanisms found their form within the regime by inducing forces which steered maritime regulation not to the bottom nor the top but, as DeSombre has demonstrated, to the middle.24 This shift was pioneered in American ports by a US Coast Guard (USCG) port state control (PSC) programme introduced as early as the 1970s. That subsequently inspired similar developments in Europe, first with the Hague agreement and then the Paris MOU, later reinforced by mandatory EU implementation.25 PSC gradually became a global governance tool as the USCG, the Paris MOU, and similar programmes elsewhere linked up through data-sharing and cooperation. The other shift came with sharpened attention being given to the role performed by classification societies and ROs. The first version of the EU’s RO legislation was adopted in 1994. A third, still in force, was adopted 15 years later in 2009. Over this decade and a half, the legislation changed its legal format from a directive to a regulation. That is in itself a significant change, since a directive is aimed at Member States’ incorporation into national legislation in line with its aim and purpose. Some scope for national adaptation and discretion will

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always exist here. A regulation, on the other hand, is the highest-ranking instrument in the EU legislative hierarchy, and is directly applicable, word by word, in any EU court. In parallel, the material content of the legislation, although largely unaltered in principle and direction, was expanded and tightened on every occasion. And finally, on its 15-year journey from early directive to current regulation, many of the fulfilment obligations shifted from Member States to the ROs themselves, and the latter also became subject to oversight by the Commission rather than the individual Member State. These were substantial changes compared with an almost unregulated status for the classification societies and ROs in pre-EU days. In terms of EU policy goals, however, the task of supervising the classification societies when they operate as ROs could not be considered fulfilled until similar principles were applied at the international level. The EU as a coordinated block was therefore heavily engaged in getting an international RO code developed and agreed. This goal was largely achieved in 2015, when the IMO RO code entered into force. It was accompanied by a significant degree of alignment between the EU and the international regime. Even with such an outcome, however, the EU felt it had to dissent on several important points. The problem was that the EU’s RO regulation distinguished between the role of classification societies as providers of private contractual classification services and their activities as ROs, while the IMO code did not. Where the EU was concerned, keeping these roles apart was more than a legal nicety. It took the view that classification services, which involve the development of rules and standards covering a vessel’s hull structure, machinery, and electrical equipment in particular, as well as certification to these rules, should be treated as private commercial activities provided in a competitive market. The work done by an RO, on the other hand, is conducted on behalf of the government of the flag state and is as such accountable to the latter. RO work should consequently be regarded as executing official assignments. This distinction was underscored by another Commission initiative in 2008, which challenged the very role of the classification societies and ROs. The Commission’s powerful competition directorate (DG COMP) launched an investigation into IACS and its European members on suspicion of breaching EU competition rules and abuse of their dominant position. So, while the DG responsible for maritime transport and safety had pushed hard for years to ensure that only the best-performing

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classification societies and ROs should be allowed to operate, DG COMP was now fundamentally demanding that IACS open up membership and access to its combined knowledge and rulemaking capabilities to potentially less well-resourced and poorer-performing societies. These two approaches by different parts of the Commission may seem both contradictory and counterproductive. However, what they also illustrate is a contradiction inherent in the international maritime safety regime and the role of the classification societies. A little simplified, one could say that, while the European Commission’s transport executive, DG TREN (now DG MOVE) pursued an EU strategy aiming at reforming—but also distinguishing between—the classification societies as providers of a common good, namely maritime safety and environmental protection, DG COMP treated the same societies as “yet another” private service provider which, by implication, is also subject to EU competition rules. The problem is that these societies are both at the same time. Where the RO role is concerned, the 20 years of regulatory transition from 1994 to 2015 shifted this activity from an essentially unregulated and rather opaque existence as a mostly private governance component in the international maritime safety regime to a more prominent and explicitly recognised, but also more regulated, hybrid private–public governance activity. Flag states had been delegating part of their certification and verification work to classification societies for many years—in relation, for example, to the Load Line convention. This delegated work would have been regulated by agreements between each flag state administration and the individual classification societies. Before the adoption of the EU’s RO legislation and IMO Resolution A.739(18), however, minimum standards for such relationships involving delegated authority had not been regulated at the international level. This study demonstrates that several factors help to explain this development. An immediate cause can be found in the many accidents which galvanised the EU to take action. Not all of these exposed weaknesses to the same extent in the private governance aspects provided by classification societies, but collectively they served to shed light on the separation between private and public governance and on the grey areas between them. Above all, these accidents became “abnormal” as they took on institutional logic. However, the overarching factor which legitimatised pulling the classification societies more tightly under government regulation was their conversion from largely private service providers to also

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encompass the role of ROs and consequently of government. That process was accentuated by the massive growth in open registries and the consequential reduction in the capabilities and capacity of government marine administrations. This development has been under way for decades. However, the result today is that a ship is likely to be covered by the one and same classification society engaged both for classification under a private contract with its owner and as the RO with a public commission from the flag state. And this will be the case both when the ship is under construction and when it is in service. What is more, the statutory certificates issued by a flag or an RO state will normally presuppose class certificates issued by the same society and vice versa. To complicate matters even further, both the government-­delegated RO work and the private contractual classification services will be paid for by the shipowner. Indeed, no money normally changes hands between flag state and classification society as part of these agreements. Other developments contributed to blurring the lines. For example, while the classification societies started off in the eighteenth and nineteenth centuries principally as rating agencies at the service of underwriters and cargo owners in need of information to differentiate between vessels, the role of these societies has now firmly become that of assuring compliance. Meanwhile, as the general public became increasingly concerned about marine pollution following the tanker accidents described in this study, stricter liabilities for the cargo owners followed. A consequence was that demand from cargo owners (oil majors) and insurers for rating services once again increased. The unsatisfactory classification work which had been exposed through these processes, with ensuing loss of trust, was partly to blame for this surge in demand. And since the classification societies had long abandoned their role in rating in exchange for a focus on compliance anchored in accumulated domain knowledge gained through intricate public–private knowledge feedback loops, it was difficult for them to respond other than by improving their classification services. However, the result was that vetting systems—such as the oil industry’s “inhouse” OCIMF SIRE programme, as well as services provided on purely commercial terms—mushroomed and took hold outside the scope of marine classification.26 Over the decades covered by this study, therefore, the international regulatory regime has acquired even more noticeable hybrid

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private–public characteristics. The boundaries between government and private governance have become increasingly unclear. This is even more the case because by the 2020s, the majority of the world fleet sails under the flags of countries which are, in ship registration terms, no longer so much “nation states” as they are purely commercial operations.27 One consequence is that the regime now depends more than ever on classification societies performing their roles both as rule developers for private classification services and as executers of delegated government authority. It was this dawning regulatory landscape which the EU acknowledged— and acted on—as part of its follow-up to the 1993 maritime safety strategy, and which was subsequently endorsed at international level through the adoption of the IMO’s Triple III and RO codes. With these codes in force, the fundamentals of the EU’s maritime safety strategy and the international regime converged. During decades of institutional interaction, the EU exercised considerable influence in securing a tightening up of the international regime. From a “head count” perspective, it could be claimed that the EU punched above its weight in these processes. However, this is explicable by a combination of factors. First, many of the EU Member States were also founding and leading members, as well as actors in the international maritime regime. Second, this individual national clout was at times amplified through coordinated EU efforts on competence building and organisational strength. Moving the classification societies from a relatively hidden existence within the regime to one at the centre of government attention and regulation became a core process in these developments. In this way, the classification societies became entangled in policy processes centred around maritime safety and environmental protection and corresponding changes to the international regime they themselves had become an integral part of. By the same token, however, these events drew the societies—sometimes as subjects and sometimes as actors—into processes that were just as much integral part of the wider processes of an exceptionally dynamic period of European integration and regulatory build-up. At the intersection between these internal EU capacity-building processes and the weaknesses of the international regime, as exposed by the many consecutive marine accidents, a forceful and dynamic intuitional interaction occurred between the EU and the international regime. That in turn placed the balance between private and public governance centre stage. During these processes, EU policy debates and actions threatened

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to undermine the entire regime at times. In the end, however, rather than inducing a fundamental change to the international regime’s hybrid private–public character, the EU ended up bolstering it through increased regulation bent on implementation, transparency, and accountability. A core in this approach was that the Commission came to realise that the accumulated repository of domain knowledge possessed by the leading classification societies was critical to the regime and could not cost efficiently be substituted by government. As a consequence, the EU took on a leading role in formalising and regulating these actors and, not least, the European flag states reliance upon them. Through a Brussels Effect— reinforced by institutional interaction—the EU’s pioneering RO regulation buttressed the private governance element of the international regime. At the same time, however, from its conception in the early 1990s to the current version adopted in 2009, the EU legislation and its mirror image at the international level gradually sought to restrict and ring-fence that very element.28 The EU’s engagement resulted in stricter criteria for formal recognition and more public scrutiny of ROs, all of it amounting to increased external governance of the industry and actors which had previously largely governed themselves. Combined with a significant shift of emphasis from flag to port state in the execution of government control of seagoing vessels’ compliance with classification and statutory obligations, this meant that new approaches and tools had been introduced and accepted at the international level to address some of the regime’s most blatant weaknesses. However, the EU’s approach to regulating the ROs cannot be characterised as an unconditional success. Ultimately, the EU failed to align the international regime entirely with its own rules and regulations. This became most visible with the IMO RO Code, which the EU Member States could only accede to with some important reservations. Furthermore, with currently 11 classification societies recognised in Europe, it is questionable whether the EU has succeeded in separating the best from the lesser good.29 One reason for this is that whether to recognise a classification society at EU-wide level or not, is not a decision taken based on technical criteria alone. Experience shows that both commercial and ‘geopolitical’ considerations tend to influence these decisions as well. Combined with stringent requirements for such aspects as harmonising

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and sharing the rulemaking capabilities of what effectively amounts to the top-tier societies, it may be argued that important goals defined by the 1993 maritime strategy have not proved attainable. The rationale behind the Commission’s competition case against IACS has also not fundamentally changed, and the EU’s insistence on separating private classification and RO work remains contested and unresolved. On top of that, a number of elements stemming from the EU’s RO regulation, which still await implementation, contain seeds of further unrest and strife between the EU and its ROs and, by implication, with the international regime itself. Nevertheless, in conclusion and viewed over the decades covered by this study, the development of a common EU maritime safety policy has had its impact on the international regime and the EU has established itself as a force to be reckoned with in it. Not the least has the EU’s capabilities as a maritime regulatory actor been fortified by an innovative organisational set-up and set of procedures that will allow the EU to remain an actor also in the longer run.30 With these decades-long processes, undeniable traits of a more government-­driven, regulatory, and interventionist continental-European governance culture were infused to the regime. That continental regulatory outlook was pitted against the heavily British-influenced liberalist principles and norms of the international maritime regime. It can be seen how this Continental-British rift came to play a role, as was also expressed when commissioner de Palacio characterised maritime actors and their international regime simply as “the Londoners”. With the UK now out of the EU, only time will tell whether the latter’s convergence with the international regime will persist. While Britain was on the inside, the international regime and the industry it governs became hostages to the EU’s regulatory culture. An important trade-off was that the UK and its maritime allies had considerable influence on the shaping of EU policies. At the time of publication of this book, internal and external forces are once again at work. On the one hand—and in line with well-established EU administrative routines—the European Commission is engaged in a process of assessing the continued relevance of the various pieces of EU legislation which were introduced with the adoption of the Erika I, II, and III packages. Through this process, EU directives and regulations ranging from Directive 2009/21/EC on flag state requirements, to the rules

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applicable for ROs in Regulation (EC) 391/2009 are under scrutiny. For the classification societies, several key issues are under debate. All these items are not solely linked to the Commission’s revision processes. Some have been on the agenda ever since the regulation was adopted nearly 15 years ago. These include longstanding questions related to obligations for ROs to mutually recognise each other’s certificates, development, and implementation of RO KPIs and, the establishment of a formalised external auditing scheme for better monitoring of the ROs. Whatever the changes end up being, there will be consequences for further development of the international regime. It remains to be seen whether these processes will be as well-founded and farsighted as the case was when the legislation was initially conceived back in the 1990s and the early decades of the twenty-first century. Back then, the main challenges were posed by sub-standard shipping and weak flag state implementation. This time, the EU as well as the international maritime regulatory regime may be confronted by even more fundamental challenges. First, following the Paris agreement signed in 2015, it has been left to the IMO and the international regime to chart a successful course for international shipping’s migration to a carbon-neutral future.31 This formidable task is already testing the limits of the regime. It is true that while keeping attention concentrated on the vessel as the main object of governance, the regime has up till now proven capable of internalising environmental matters. But the issue of climate change and decarbonisation is wider and much more all-encompassing.32 Secondly, another emerging and systemic challenge stems from accelerating developments in digital technology and the increasing uptake by the maritime sector of opportunities created by this. Increasing reliance on software systems alongside Artificial Intelligence (AI), big data analytics, and automation creates its own risks and rule development and certification needs which are very different to the ones most relevant when the EU conceived its maritime regulatory approach. The two sets of issues differ in many ways, but also have features in common. First, both involve unfamiliar risks and a variety of new interested parties and actors whose buy-in will be crucial for success. Second, rule development, standardization, and regulation are still in their infancy, and it is far from certain which regulatory regime that will be best suited to providing governance. And finally, these are both areas where there are expectations of fast progress. The demand for comprehensive, bold, and systemic decisions is therefore much more urgent than with the

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incremental advances—often driven by “normal accidents”—which the regime has traditionally been able to deliver. This study indicates that it takes “abnormal accidents”—understood as extraordinary exogenous forces acquiring institutional logics—for the regime to alter in more fundamental ways. However, unlike the traditional fields of maritime safety and pollution prevention which dominated in previous centuries, neither the classification societies nor governments’ flag state administrations have an uncontested role in rule development, certification, and assurance against risks arising in these new domains. Furthermore, in a world where a significant part of the global merchant fleet is registered with flag states that are themselves commercial operators, unhealthy competition between the flag state and the classification societies and ROs may erupt. It is not unconceivable therefore that addressing these challenges, both individually and in combination, will be even more demanding in terms of defining and balancing—not to speak of distinguishing between—private and public governance. In this context it may prove to be of significance that the recently adopted EU MRV Regulation and the ETS Directive opens for private independent verifiers—beyond the maritime classification societies—to seek accreditation for delivering the verification services needed to monitor CO2 emissions from ships.33 In conclusion, the international maritime regime’s flag state-centric model has come under considerable pressure in recent decades. Although in amended form, it has so far survived. However, it is far from certain that this element of the regime will overcome the challenges on the horizon. Much will, of course, not only depend on the EU but on how Asia in general—and China in particular—define and handle their interests in the decades to come. These aspects have largely fallen outside the scope of this study. However, it is obviously significant that by the early 2020s, half the world fleet is now beneficially owned from Asia (Fig. 7.1). Furthermore, 93 per cent of world shipbuilding takes place in China, Korea, and Japan.34 Similarly, close to 50 per cent of the world’s seafarers come from the Philippines, Indonesia, China, India, and the Russian Federation.35 Moreover, China with Hong Kong is now to be found among the world’s top 5 ship registries (in DWT), and unlike the leading three, China/Hong Kong SAR cannot justifiably be labelled an open register, at least not in its purest form (Fig. 7.2).36 In the context of this study, it is also worth noting that—unlike all western nations—China has not availed itself of the opportunity to

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Fig. 7.1  Fleet size by region of beneficial ownership, 2022

Asia

Europe

Rest

Numbers in million DWT Source: UNCTAD Handbook of Stascs, 2022

400 350 300 250 200 150 100 50 0

Panama

Liberia

Marshall Islands

China, Hong Kong SAR

Source: UNCTAD Handbook of Statistics, 2022

Fig. 7.2  Five leading ship registers in million DWT, 2022

Singapore

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delegate any of its flag state authority to competing foreign ROs.37 One could instead say that, until the early 2020s at least, the chosen model for China’s ship register and flag resemble more the one western shipping nations applied until the 1980s. What seems certain, though, is that this massive commercial presence in world shipping gradually acquired by China and its Asian neighbours has so far only to a limited degree been reflected in a corresponding impact shaping the international regime. This can partly be explained by the absence—at least this far—of the conditions necessary for creating any equivalent to the Brussels Effect. But even such parameters may change. Meanwhile, the EU has brought a regional dimension and force into international regulatory regime. With it the EU also challenged the viability of a regulatory set-up that remained profoundly nation-state centric on the public side, whereas the industry it was set to govern, arguably had developed into one of the least nationally anchored of all.38 Finally, the EU challenged the closely knit shipping community—with its private and public actors—that together decide on most regulation in the sector. On the back of the EU engagement also came new actors and a wider community of non-shipping interests that had previously failed to see themselves as legitimate participants developing the regime. This may in itself prove to be a long-lasting effect.39 Reviewing a book on maritime history published in 2020, British author and journalist John Lanchester observed that, “Shipping is deeply rooted in specific places and specific traditions, but is on a mission to be as placeless as possible”.40 The fundamental question is, will a state-centric regulatory system be able to keep up with that?

Notes 1. Andreas Hasenclever, Theories of International Regimes, vol. 55, Cambridge Studies in International Relations (Cambridge: Cambridge University Press, 1997). 2. Edgar Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law (Lexington, Mass: Lexington Books, 1981); Alan W.  Cafruny, Ruling the Waves, The Political Economy of International Shipping (Berkeley: University of California Press, 1987). 3. See the discussion on Stephen Krasner’s definition of a regime in the introductory chapter.

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4. The name change took place in 1982. For further details, see Agustín Blanco-Bazán, “IMO—Historical Highlights in the Life of a UN Agency,” Journal of the History of International Law 6, no. 2 (July 2004): 259–283. 5. Cafruny, Ruling the Waves. 6. Oran R.  Young, “Regime Dynamics: The Rise and Fall of International Regimes,” in International Regimes, Stephen R. Krasner ed. (Ithaca, N.Y: Cornell University Press, 1983): 93–113. 7. Japanese classification society Nippon Kaiji Kyokai (Class NK) was IACS’ only non-western founding member in 1968. The other founding members were the American Bureau of Shipping (ABS), Bureau Veritas (BV), Det Norske Veritas (DNV), Germanischer Lloyd (GL), Lloyd’s Register (LR) and Registro Italiano Navale (RINA). The next non-western society to join was the USSR’s (RS) (1969), while the Korean Register (KR), and the China Classification Society (CCS) both became full members in 1988. 8. Giandomenico Majone, Regulating Europe (London: Routledge, 1996). 9. Council decision 77/587/EEC of 13 September 1977 setting up a consultation procedure on relations between Member States and third countries in shipping matters and on action relating to such matters in international organisations, Official Journal L 239 of 17 September 1977. 10. Council directive 79/116/EC concerning minimum requirements for certain types of tankers entering community ports, adopted on 21 December 1978. 11. For more information on the Parliament, see Charlotte Burns, “The European Parliament,” in Michelle Cini and Nieves Pérez-Solórazano Borragán eds, European Union Politics, 6th edition (Oxford, 2019). 12. Burns. 13. Charles Perrow, Normal Accidents: Living with High Risk Technologies (New York: Basic Books, 1984). 14. Anu Bradford, The Brussels Effect. How the European Union Rules the World (New York: Oxford University Press, 2020): 25–65. 15. Sebastian Oberthür and Thomas Gehring eds, Institutional Interaction in Global Environmental Governance: Synergy and Conflict among International and EU Policies (Cambridge, Mass: MIT Press, 2006): 8. 16. IMO Resolution A.739(18)—Guidelines for the Authorization of Organizations Acting on Behalf of the Administration, 4 November 1993. 17. Sebastian Oberthür and Thomas Gehring eds, Institutional Interaction. 18. Perrow, Normal Accidents: Living with High Risk Technologies. 19. Ref “Winds of change” section earlier in this chapter. 20. Jonas Tallberg, Leadership and Negotiation in the European Union (Cambridge: Cambridge University Press, 2006) 21. Sebastian Oberthür and Thomas Gehring eds, Institutional Interaction: 9–10.

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22. Sebastian Oberthür and Thomas Gehring eds. 23. Michael Roe, Maritme Governance. Speed, Flow, Form, Process (Switzerland: Springer International Publishing, 2016). 24. Elizabeth R.  DeSombre, Flagging Standards: Globalization and Environmental, Safety, and Labor Regulations at Sea (Cambridge, Mass: MIT Press, 2006). 25. Z. Oya Özçayır, Port State Control, 2nd edition (London: LLP, 2004). 26. One example of such commercial vetting services are the ones provided by Rightship. 27. On the official website of the Liberian Registry, it is for example stated that “The Liberian Registry is administered by the Liberian International Ship & Corporate Registry (LISCR, LLC), a private US owned and globally operated company” (last consulted May 2023). 28. Bradford, The Brussels Effect; Oberthür and Gehring eds, Institutional Interaction. 29. At the time of writing, American Bureau of Shipping (ABS), Bureau Veritas (BV), China Classification Society (CCS), Croatian Register of Shipping (CRS), Det Norske Veritas (DNV), Korean Register (KR), Indian Register of Shipping (IR), Lloyd’s Register (LR), Nippon Kaiji Kyokai (ClassNK), Polish Register of Shipping (PRS), and Registro Italiano Navale (RINA) are recognised by the EU. 30. Peter Langlais, “Sécurité maritime et intégration européenne” (Bruxelles, Bruylant, 2018); Groenleer, Kaeding & Versluis, “Regulatory Governance through Agencies of the European Union? The Role of the European Agencies for Maritime and Aviation Safety in the Implementation of European Transport Legislation,” Journal of European Public Policy 17, no. 8 December (2010); Christer Gulbrandsen, “Navigating from Conflict to Working Arrangement: EU Coordination in the International Maritime Organisation,” Journal of European Integration 35, no. 7 (2013): 749–65. 31. The Paris Agreement is a legally binding international treaty on climate change. It was adopted by 196 parties at COP 21 in Paris on 12 December 2015 and entered into force on 4 November 2016. Its goal is to limit global warming to well below 2 °C, and preferably 1.5 °C, compared with pre-­industrial levels. The IMO has been given the job of deciding how emissions from international shipping will be reduced to near-zero in line with these goals. 32. Jane Lister, René Taudal Pedersen, and Stefano Ponte, “Orchestrating Transnational Environmental Governance in Maritime Shipping,” Global Environmental Change 34 (2015): 185–195. 33. Regulation (EU) 2023/957 and Directive 2003/87/EC. Relates to verifiers that assess the monitoring plans and the emissions reports, and issue verification reports and documents of compliance referred to in the MRV

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Regulation. These verifiers shall be accredited for activities under the scope of the Regulation by a national accreditation body pursuant to Regulation (EC) No 765/2008. 34. BIMCO/ICS, Seafarers workforce Report 2021, London 2021. 35. BIMCO/ICS, Seafarers workforce Report 2021, London 2021. 36. UNCTAD Handbook of Statistics 2022/Maritime transport/ Merchant fleet. 37. China’s own national classification society, CCS, clearly plays a role in governing the fleet under the Chinese flag. At the same time, CCS has been recognised as an RO by several western administrations including by the EU. Foreign classification societies have on the other hand not been recognised for doing work for the Chinese flag state administration. 38. Michael Roe, Maritime Governance, Speed, Flow, Form, Process, (Switzerland, Springer International Publishing, 2016), pp. 5–32. 39. Ref. for example the Brussels-based environmental NGO Transport & Environments’ (T&E) increasingly prominent role in setting the IMO agenda on shipping’s fulfilment of the Paris Agreement on climate change. See T&E’s position paper “Less is more: Regional shipping policy and global decarbonisation" presented to COP 27. in November 2022. In it the E&T make the case that if the China, the EU and the USA agree on maritime decarbonisation rules and together monitor these through port state control, close to 85% of shipping’s global CO2 emission could be controlled faster and more efficiently than any measures through the IMO’s multinational flag state-centric system is likely to achieve. 40. John Lanchester, London Review of Books, Vol. 43 No. 8, 22 April 2021.

Further Reading

Aspinwall, Mark. Movable Feast. Pressure group conflict and the European Community shipping policy. Aldershot: Avebury, 1995. Barkin, Samuel J. The sovereignty Cartel. Cambridge; Cambridge University Press, 2021. Benton, Lauren and Perl-Rosenthal, Nathan, eds. A World at Sea: Maritime Practices and Global History (The Early Modern Americas). Philadelphia, University of Pennsylvania Press, 2020. Benton, Lauren. A Search for Sovereignty: Law and Geographies in the European Empires, 1400–1900. Cambridge: Cambridge University Press, 2010. Blanco-Bazán, Agustín. “IMO – Historical Highlights in the Life of a UN Agency.” Journal of the History of International Law / Revue d’histoire Du Droit International 6, no. 2 (July 2004): 259–283. Boisson, Philippe. “Classification Societies and Safety at Sea: Back to Basics to Prepare for the Future.” Marine Policy 18, no. 5 (1994): 363–377. ———. Safety at Sea. Policies, Regulations and International Law. Paris: Bureau Veritas, 1999. Bradford, Anu. The Brussels Effect. How the European Union Rules the World. New York: Oxford University Press, 2020. Broekema, Wout. “Crisis-Induced Learning and Issue Politicization in the EU: The Braer, Sea Empress, Erika, and Prestige Oil Spill Disasters.” Public Administration 94, no. 2 (2016): 381–398.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0

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Index1

A Abnormal accidents, 22, 209 Accounting firms, 167 Acquis communautaire, 68 Aegean Sea, 71, 98n9, 99n33 American Bureau of Shipping (ABS), 7, 212n7, 213n29 Amoco Cadiz, 2, 33, 36, 37, 39, 40, 43, 44, 48, 56, 57, 127n14, 192–194, 198 Anne, Bernard, 139, 155n32 Anomeritis, Georgios, 144 Anti-competitive business practices, 176 Antiquity, 4–6 Artificial Intelligence (AI), 208 Asia, 45, 96, 100n49, 104n112, 142, 176, 191, 209 Athens, 135, 144, 182n6 Atlantic, 10, 26n24, 37, 60n14, 98n9, 110, 167, 194

B Bahamas, 109, 133, 135, 137, 139, 146, 154n5 Banking, 7 Bay of Biscay, 1, 107, 110 Borg, Joe, 150, 158n80 Bradley, Robin, 115 Braer, 2, 19, 25n6, 68–71, 85–87, 89, 91, 94, 98n7, 98n8, 99n24, 100n36, 111, 127n19, 147, 166, 194–198 British empire, 6, 7, 45, 189 British-influenced, 207 Brittany, 24n3, 33, 107, 127n3 Brussels Effect, 22–24, 31n101, 31n102, 31n103, 95, 104n118, 125, 131n76, 152, 153, 158n86, 180, 196, 201, 206, 211, 212n14, 213n28

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 K. Djønne, The Political Economy of Maritime Safety, Palgrave Studies in Maritime Economics, https://doi.org/10.1007/978-3-031-38945-0

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224 

INDEX

Bureau Européen des Unions de Consommateurs (BEUC), 37 Bureau Veritas (BV), 7, 212n7, 213n29 Business models, 52 C California effect, 16 Captain Mangouras, 147 Cargo, xv, 1, 2, 8, 9, 33, 41, 42, 44, 51, 57, 59n1, 62n44, 62n45, 66n95, 68, 94, 98n9, 107–109, 128n39, 133, 134, 138, 143, 190, 192, 204 Certificates for materials and components (CMC), 170 China, xv, 100n49, 165, 176, 184n31, 187n84, 191, 209, 211, 212n7, 213n29, 214n37, 214n39 Chirac, Jacques, 120, 135, 154n14 Civil liability and fund conventions (CLC), 44 Classification certificates, 8, 87, 108, 181 Classification societies, vi, vii, 3, 4, 8, 9, 18, 20, 21, 39, 49, 54, 60n18, 65n86, 72, 76–80, 82, 84, 86–90, 95, 97, 100n49, 100n50, 101n56, 103n89, 113, 114, 118, 119, 125, 128n27, 138–141, 145, 148, 153, 166, 167, 171, 174, 176, 181, 182, 186n55, 191, 196, 197, 200–206, 208, 209, 214n37 Coastguard, 1, 107, 108, 145 Cockfield, Lord, 50 Codified, 5, 11, 20, 79, 96 Coleman, Robert, 110 Commercial, v, 3, 5, 7, 8, 11, 16, 18, 53, 57, 58, 81, 93, 96, 108, 109, 116, 126, 139, 160, 167, 171,

191, 195, 202, 204–206, 209, 211, 213n26 Commission DGs, 164 Commission’s competition directorate (DG COMP), 176 Commission’s legal service, 164 Communication on a common policy for safe seas, 72 Compensation, 16, 43, 56, 122, 130n62, 130n63, 141, 182n6 Competition, 16, 17, 42, 58, 62n39, 101n61, 126, 176–178, 182, 202, 207, 209 A Coruña, 147 Council agenda, 56, 199 Council conclusions, 33, 59n4, 59n5, 70, 137 Crew, 1, 2, 11, 38, 54, 55, 66n95, 69, 107, 109, 133, 134 Cyprus, 46, 148–152, 158n85, 174, 175 D Dawn raid, 176 Decolonisation, 45, 58, 101n56 Delegated authority, 18, 65n86, 125, 203 Delors, Jacques, 50 Denmark, 14, 40, 46, 47, 70–73, 95, 99n30, 99n31, 144, 155n26, 174, 192, 195 de Palacio, Loyola, 109, 110, 117, 124, 127n5, 134, 138, 140–141, 144–147, 155n25, 156n40, 156n41, 157n58, 165, 197, 207 Derbyshire, 55 Deregulation, 14, 49, 50, 67, 194 de Ruiter, Willem, 110, 111, 127n8, 127n9, 127n11, 127n12, 127n13, 130n75, 138, 148, 154n3

 INDEX 

Detention criteria, 83 Det norske Veritas (DNV), 7–8 Dimas, Stavros, 150 Directorate general for enterprise and industry (DG ENTER), 171 Directorate general for transport and energy (DG TREN), 127n4, 150, 197, 203 DIS, 14, 103n102 Donington, Lord Bruce of, 37 Dual role, 18, 20 Dutch salvage operator, 133 Duty of cooperation, 163 Duty of loyalty, 163 E EC maritime policy, 42, 192 Economic, xv, 3, 7–9, 11, 12, 14, 20, 27n49, 41, 45, 49, 53, 57, 64n73, 79, 118, 134–136, 142, 149, 185n53, 190–193 EC transport policy, 50 England, 5, 6 Enron, 167, 185n40 Equipment manufacturers, 8, 186n56 Erika, 1–4, 19, 24n2, 24n3, 25n6, 98n8, 107–110, 112–122, 124–126, 127n2, 127n3, 127n20, 128n25, 128n31, 128n37, 129n46, 129n47, 129n48, 130n75, 131n77, 134–136, 138, 142, 144, 145, 150–152, 160, 161, 165, 166, 169, 173, 175, 178, 196–199, 207 Error-inducing system, 3 Estonia, 55 European Commission, 54, 60n14, 61n27, 62n42, 62n43, 69, 103n94, 104n108, 105n124, 109–111, 126, 127n6, 157n54, 157n59, 157n67, 187n74, 192, 203, 207

225

European commissioner, 50 European Community (EC), 19, 29n83 European Community Shipowners’ Association (ECSA), 60n14, 72 European Council, 40, 59n4, 59n5, 83–84, 99n29, 155n23 European Court of Justice (ECJ), 50, 76, 194 European Free Trade Association (EFTA), 164 European integration, xvii, 4, 19, 23, 58, 123, 205 European Marine Equipment Council (EMEC), 171, 172, 186n56, 186n59 European maritime nations, 45, 96 European market, 42, 50, 152 European Parliament (EP), 36–40, 59n9, 59n13, 60n15, 60n16, 60n17, 60n20, 60n21, 60n23, 60n24, 60n25, 64n77, 99n24, 103n94, 130n61, 130n74, 156n42, 156n44, 157n68, 157n69, 158n70, 158n73, 158n74, 158n75, 186n61, 186n68, 193, 212n11 European Union (EU), vi, 1, 19 EU coordination, 163–165, 193 EU decision-making, 84 EU enforcement, 84 EU institutions, 3, 22, 23, 68, 89, 148, 200 EU legislation, 24, 56, 83, 95, 97, 102n75, 119, 123, 160, 162, 165, 173, 175, 179–181, 184n28, 195, 197, 206, 207 EU level, 23, 96, 97, 118, 123, 142, 143, 150, 151, 160, 161, 200 EU maritime, xvii, 19, 56, 67, 97, 145, 149, 150, 159–161, 175, 178, 195, 197, 207 EU political system, 22 EU ROs, 80, 90, 119, 148, 166

226 

INDEX

F Flagging out, 14, 66n95, 74, 85, 123 Flag of convenience (FOC), 11, 13, 27n49, 85, 127n15, 134, 148 Flag state rules, 10, 152 Foreign-flag, 17 France, 5, 14, 33, 41, 59n3, 63n54, 69, 70, 94, 108, 110–113, 120–121, 125, 127n14, 127n17, 127n18, 130n63, 145, 154n12, 190–192, 194, 198, 199 Freedom of the seas, 5, 6, 17, 47, 81 Fuel oil, 1, 107, 136 G Gayssot, Jean-Claude, 111, 127n15, 127n16 Genuine link, 12, 13, 64n80, 65n83, 190 Geopolitical shifts, 58 Germanischer Lloyd (GL), 8, 212n7 Germany, 8, 63n54, 70, 87, 99n27, 100n37, 130n63, 183n20, 194 Giscard d’Estaing, Valéry, 33 Globalisation, 12, 14, 16, 53, 58, 80, 85, 191 Global level, 57, 68, 74, 79, 80, 85, 116, 119, 142, 145, 178 Global shipping markets, 14 Global trading system, 7, 79 Governance, v–vii, 3–5, 8–10, 14, 19–21, 30n92, 49, 71, 95, 97, 166, 182, 189, 192, 195–197, 201–211 Greece, 46, 47, 53, 63n54, 63n57, 70, 72, 134, 139, 144, 154n9, 157n56, 157n57, 162, 163, 183n15 Grotius, Hugo, 5, 25n8, 25n9, 25n11 Group of Seven(G7), 19

H Herald of Free Enterprise, 55 Höegh, Westye, 113 Hong Kong, 139, 209 Hybrid private-public regulatory regime, 11 I Iarossi, Frank, 115 Imperialist, 6 Independent experts, 8 Institutional interaction, xvii, 21, 201 Insurance, 7, 39, 62n45, 109, 141, 147 Interaction, vi, vii, 4, 20–22, 24, 30n92, 84–89, 126, 151, 180, 182, 193, 196, 199, 200, 205, 206 International, v–vii, 2–6, 9–14, 16–18, 20, 21, 23, 24, 27n55, 28n67, 29n79, 33, 36–38, 42–44, 47, 49, 51, 54–56, 58, 59n12, 63n64, 63n67, 67, 68, 71–73, 75, 76, 78–83, 85, 86, 89, 90, 93–95, 97, 98n16, 103n95, 104n113, 108, 110, 117, 120–126, 128n43, 130n63, 130n67, 137, 138, 141–143, 145, 147, 148, 151–153, 155n25, 160, 161, 163, 165, 168, 173, 178–181, 183n11, 184n25, 187n73, 189–211, 212n9, 213n31 International Association of Independent Tanker Owners (INTERTANKO), 69, 86, 93, 98n20, 102n85, 103n89, 104n110, 113, 114, 128n22, 128n23, 128n24, 128n27, 143

 INDEX 

International convention for the prevention of pollution from ships (MARPOL), 2, 29n80, 43–44, 62n46, 62n47, 70, 81, 112, 117, 118, 128n39, 129n44, 137, 155n20, 174 International convention on safety of life at sea (SOLAS), 10, 18, 26n43, 29n80, 77, 78, 100n50, 101n57, 162, 174 International convention on standards on training, certification and watchkeeping (STCW), 81, 86, 109 International Court of Justice (ICJ), 12 International Labour Organisation (ILO), 48 International Maritime Consultative Organisation (IMCO), 11 International Maritime Organisation (IMO), 4, 27n45, 188n93 IMO assembly, 93, 94, 160, 174 IMO conventions, 18, 68, 70, 81, 84, 85, 101n57, 102n75, 180, 187n86, 197 IMO flag state code, 159, 175 IMO flag state requirements, 174 IMO meeting, 164 IMO RO code, 200–202 International maritime safety regime, 2, 9, 21, 78, 80, 121, 126, 152, 195, 196, 199, 203 International regime, 20, 21, 56, 95, 126, 143, 145, 151, 153, 179–181, 190, 193, 195–197, 200–202, 205–208, 211 International Tanker Pollution Federation (ITOPF), 86 International Union of Marine Insurers (IUMI), 177 Investigation report, 2, 3, 108, 109, 120, 198

227

J Japan, 55, 65n91, 94, 100n49, 118, 126, 165, 187n84, 191, 209 Joint EU-IMO positions, 144 Jospin, Lionel, 111, 120 Jurisdiction, 11, 78, 81, 103n95, 125 K Kariba, 137 Kinnock, Neil, 24n1, 91–94, 104n104, 104n107, 104n111, 109, 113, 165 Know-how, 16, 79, 95, 148, 149 Knowledge, 18, 20, 21, 30n92, 35–37, 43, 71, 78, 111, 115, 123, 135, 166, 177, 197, 200, 203, 204, 206 Koopmans, Marten, 162 L Lalis, Georgette, 108 Lamoureux, François, 110, 111, 124, 197, 199 LAN group, 139 Leslie, Richard, 141, 176 Levitt, Matthew, 176, 187n78 Liberia, 2, 12, 16, 108, 121, 156n48, 187n84 Lloyd’s Register (LR), 7, 38, 212n7 Load-line, 9 London, 6, 7, 25n19, 25n20, 25n21, 25n23, 26n24, 26n26, 26n28, 26n29, 27n56, 29n76, 30n95, 31n99, 88, 104n107, 109, 135, 145, 158n72, 164, 167, 176, 189, 212n8, 213n25, 214n34, 214n35, 214n40 Lunde, Dagfinn, 114

228 

INDEX

M Malta, 1, 2, 46, 107, 108, 120, 143, 148–152, 154n14, 156n49, 158n85, 175 Management company, 2, 135 Mangouras, Apostolos, 134, 147, 154n5, 154n6, 158n72, 158n73 Mare committee, 146, 147, 158n70, 200 Mare Librium, 5 Marine equipment directive (MED), 90, 171 Maritime administrations, 8, 71, 79, 90, 94, 111, 174, 185n50, 186n61, 192 Maritime classification, 7 Maritime law, 6, 142 Maritime legislation, 45, 49, 68, 151, 162 Maritime regulator, 4, 19 Maritime safety and pollution prevention, 84, 209 Maritime safety regulation, xvii, 4, 79, 95, 121, 124, 143, 145 Members of the European Parliament (MEP), 37, 140, 146 Member State implementation, 76, 123 Mercantilist, 6 Mitropoulos, Efthymios (Thimio), 144–148, 150, 157n64, 157n65, 157n66, 158n80 Mutual recognition of each other’s certificates, 168 N Nahodkha, 126 National, v, vi, 3, 5, 6, 8, 10, 12–14, 16, 18, 22, 23, 42, 45, 47, 51, 53, 54, 57, 64n79, 66n95, 76–79, 82, 83, 85, 86, 89, 94,

96, 97, 100n49, 101n56, 103n102, 104n104, 110, 111, 120–125, 128n43, 135, 144, 150, 158n84, 163, 175, 185n52, 189–194, 196, 198–201, 205, 214n33, 214n37 Navigational issues, 9 Netherlands, 5, 45, 63n54, 70, 130n69, 194 New International Economic Order (NIEO), 41, 58 Non-EU registered ships, 179 Normal accidents, 22, 193, 209 Norway, ix, 7, 47, 53, 63n57, 63n62, 88, 102n77, 118, 128n43, 129n49, 147, 174 Norwegian international ship register (NIS), 14, 65n85, 103n102 O OECD, 14, 17, 51, 62n39, 91, 93, 96, 104n106 Oil Companies International Marine Forum (OCIMF), 60n14, 113, 127n19, 139, 204 Oil major, 2, 24n2, 120, 198 Oil-spill, 33, 44 Okinawa communiqué, 121 O’Neil, William, 72, 85, 92, 93, 138, 143–145, 157n56, 157n58, 157n61 Open-register, 2, 11, 12, 17, 78 P Panama, 11, 12, 16, 178, 187n84 Paris, 36, 37, 39, 48, 56, 57, 72, 74, 75, 81–83, 85, 94, 99n34, 100n43, 103n92, 110, 111, 161, 193, 201, 208, 213n31, 214n39

 INDEX 

Parliament’s committee on transport and tourism (TRAN), 169 Pasqual, Luis de Grandes, 169 Payer, Hans, 115, 155n32 Plimsoll, Samuel, 9, 10, 26n26 Plimsoll mark, 9 Port state control (PSC), 17, 38, 47–49, 68, 81, 134, 193, 201 Portugal, 5, 46, 120, 134, 150 Prestige, 19, 25n6, 98n8, 98n23, 133–135, 137–142, 144, 146, 147, 150, 154n5, 154n8, 154n9, 154n10, 154n16, 155n17, 155n18, 155n20, 155n27, 155n30, 156n37, 156n38, 156n39, 156n40, 156n42, 156n43, 156n44, 156n45, 157n68, 161, 166, 169, 196, 199–201 Private, v, vi, 2–4, 6, 8–11, 16, 18, 20, 21, 23, 24, 44, 47, 49, 60n18, 70, 77, 79, 80, 94, 95, 100n49, 108, 113, 120, 126, 128n24, 142, 161, 167, 170, 174, 181, 182, 185n53, 190, 191, 194, 196–199, 202–207, 209, 211, 213n27 Prodi, Romano, 148 Protection & indemnity (P&I), 43, 62n45, 109, 147, 158n72 Public, v–vii, 2, 3, 9–11, 16, 19, 20, 36, 37, 43, 56, 65n88, 68, 69, 87, 88, 92, 94–96, 97n1, 100n43, 108, 113, 115, 124, 126, 128n36, 140, 142, 146, 147, 150, 156n40, 172, 174, 182, 185n53, 190, 196–198, 201–211 Q Quality Shipping campaign, 49, 92–94, 108, 116, 197 Quality shipping charter, 1

229

R Race to the bottom, 12, 14, 16–19, 28n68 Race to the middle, 17 Recognised organisation (RO), 18, 78, 80, 84, 88–90, 101n56, 101n60, 118, 119, 123, 125, 139, 141, 142, 148, 152, 166–174, 178–182, 185n52, 186n62, 187n84, 188n90, 188n92, 191, 196, 200–206, 208, 214n37 Red Ensign Group (REG), 14, 28n61 Regime change, 20 Registro Italiano Navale (RINA), 108, 114, 115, 120, 128n25, 135, 176, 212n7, 213n29 Regulatory convergence, 12, 16–19 Regulatory power, 4 Regulatory standards, 16 Ro-Ro, 138, 155n24 Rotating presidency of the Council, 120, 199 Royal Dutch Shell, 69, 127n17 S Safe Seas resolution, 195 Safety of life at sea (SOLAS), 10, 26n43 Salvarani, Roberto, 92, 100n42, 101n65, 101n66, 104n105, 111 Scandinavian Star, 55 Schinas, Margaritis, 127n5, 130n75, 145, 157n60 Sea Empress, 2, 25n6, 98n8 Seafarers, xvi, 1, 9, 11, 14, 16, 38, 39, 41, 57, 64n76, 91, 110, 143, 147, 148, 209 Seaworthiness, 2, 18, 28n66, 111, 139, 171 Second World War, 10 Shetlands, 68, 71, 194

230 

INDEX

Ship inspection and survey organisations, 101n58, 103n93, 116, 128n38, 179, 185n50, 186n61, 196 Ship inspection report programme (SIRE), 113, 127n19, 204 Shipowners, 7–9, 11, 17, 27n49, 38, 42, 54, 56, 57, 76, 79, 85, 94, 95, 112, 148, 151, 186n55, 195 Shipowning nations, 12, 95 Shipping policy, 4, 11, 43, 47, 57, 58, 96, 138, 144, 191, 194, 214n39 Ship Registration Convention, 13 Single European Act (SEA), 50, 64n73, 193 Single-hull, 70, 112, 116, 118, 128n39, 129n44, 134, 136, 137, 143, 156n46, 199 Slater, Paul, 114, 128n28, 143 Social side of technological risk, 22 Somerville, Robert D., 141, 177 Sosrep, 147 Sovereignty, 5, 11–17, 28n64, 57, 96, 163, 179, 190 Soviet Bloc, 96 Spain, 5, 46, 94, 98n9, 133–135, 143, 154n5, 154n11, 154n12, 154n14, 154n15, 156n37, 156n49, 169, 199 Statutory regulations, 9 Supertanker, 33, 58, 59n1, 68 Svensen, Tor E., 176, 177 Switzerland, 2, 109, 183n21, 213n23, 214n38 T Tanker market, 58, 120 Tanker owners’ voluntary agreement on liability for oil pollution (TOVALOP), 43

Tanker safety, 56, 113, 116, 120, 145, 198 Titanic, 10 Torrey Canyon, 2, 43–44, 62n44, 127n14 Total Fina, 2, 24n2, 109, 112, 120, 127n17, 198 Transport Council, 35, 37, 56, 111, 116, 118, 122, 136, 137, 144, 170, 182n7 Treaty of Rome, 45–47, 50, 62n51, 63n55, 99n35, 192, 193 Tricolor, 137, 155n24 Triple III, 178, 180, 188n91, 200, 205 U Ugland, Andreas, 69, 86 UK, 7, 9, 14, 28n61, 40, 46, 47, 50, 53, 55, 62n44, 66n99, 69, 70, 86, 92, 94, 98n15, 99n30, 99n31, 147, 169, 184n31, 190–192, 207 UN Commission on Sustainable Development (CSD7), 121 United Nations Convention on the Law of the Sea (UNCLOS), 5, 17, 18, 28n66, 29n76, 29n77, 29n78, 44, 59n11, 68, 76, 78, 97n4, 101n54, 101n55, 121, 135–137, 154n13, 199 United States Coast Guard (USCG), 47, 84, 86, 201 UN liner code, 42, 43, 57, 101n56 USA, 7, 12, 17, 55, 58, 65n91, 66n99, 70, 84, 86, 94, 110, 117, 128n43, 129n45, 129n48, 167, 173, 179, 183n16, 185n46, 187n84, 189, 214n39 US labour legislation, 12

 INDEX 

V Very large crude (oil) carrier (VLCC), 2, 33, 59n1 Vessel traffic service (VTS), 84, 122

231

W Western world, 12 White Paper, 50, 72, 97n1 Worldwide, 16, 51, 54, 128n39, 147, 150, 158n85, 165