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
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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
* Legal Officer, European Maritime Safety Agency, Lisbon, Portugal. I am grateful to Colin de la Rue for his comments on an earlier draft of this article. Nonetheless, of course, the views expressed in this article are solely the views of the author.
1. Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56.
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