i-law

Lloyd's Maritime and Commercial Law Quarterly

The application of the Environmental Liability Directive to damage caused by pollution from ships

Malgorzata A Nesterowicz*

Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage will become fully binding on 30 April 2007. It introduces an obligation for economic operators to undertake necessary preventive measures in case of a threat of environmental damage and remedial measures if the damage has already occurred and to bear the cost of these measures, even if undertaken by a competent authority in the Member State. The Directive also applies to environmental damage originating from ships, although its application is excluded from damage in respect of which liability or compensation falls within the scope of the CLC, HNS and Bunker Oil Conventions. As the HNS and Bunker Conventions are not yet in force, the article analyses the present application of the Directive to HNS and bunker oil damage and how the entry into force of these instruments would change the applicable rules of liability .

I. INTRODUCTION

The EU Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage1 was adopted on 30 April 2004. According to its Art 20, it entered into force on the day of its publication. However, EU Member States were given time until 30 April 2007 to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive. This date is approaching and it is therefore instructive to consider its effects.
The Directive is based on the rule “the polluter pays”. It provides that, in case of environmental damage or a threat of such damage, necessary preventive and remedial measures should be taken either by the “polluter” (an operator who manages or controls the occupational activity that was the source of the damage or its threat) or by a competent public authority. In both cases the operator should bear the cost of such measures.
Some specific types of environmental damage originating from ships are already regulated at the international level, at least in relation to compensation for such damage and the ceilings of such compensation. Oil pollution damage is regulated by the International Convention on Civil Liability for Oil Pollution Damage (CLC) in its version

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.