Prestige gets royal treatment

FOLLOWING the Prestige oil spill in November 2002, the Spanish legislature has enacted a number of regulations (mainly Royal Decrees-Law 7/2002 and 8/2002, of 22 November and 13 December 2002) on a variety of measures, including economic, labour, social security and tax aids for those sectors affected by the disaster. It has also created a State Commissioner to deal with any actions to be taken following the Prestige catastrophe (Royal Decree 1/2003, of 3 January 2003).

Simultaneously, substantial legislative activity has also taken place to implement new rules on marine and port safety and port state control. Some of these have been criticised, mainly by affected interests such as shipowners, who claim that they could be in conflict with existing provisions of international conventions ratified by Spain, particularly UNCLOS.

The most controversial regulation adopted by Spain is the Royal Decree-Law 9/2002, of December 13, 2002, which adopts measures for tankers carrying dangerous or contaminating cargoes. This regulation bans single-hulled tankers from entering Spanish ports or terminals, regardless of which flag they are flying.

Irrespective of the reasonableness or otherwise of this measure, its adoption has been justified by the Spanish legislature on the basis of the need, following the Prestige accident, to implement immediate measures on maritime safety which had been discussed within the EU, but which were not finally included in the Regulation (EC) No 417/2002 of the European Parliament and of the Council, of February 18, 2002, on the accelerated phasing-in of double hulls, or equivalent design requirements for single-hull tankers. (Influenced by the Prestige catastrophe, similar initiatives were considered by the European Union Council of Ministers of Transport, Telecommunications and Energy in the meetings held in Brussels on December 5 and 6, 2002.)
The effect of this Royal Decree-Law has been to ban single-hulled tankers carrying heavy fuel oil, tar, asphaltic bitumen or heavy crude from entering Spanish ports, terminals or anchorages with effect from January 1, 2003. As definitions of terms such as heavy fuel oil, heavy crude, etc are missing from the regulation, this could create some uncertainty and has led professional associations and others to question the methodology followed.
On the other hand, it should be noted that nothing is contemplated in the regulation in connection with the passage of these tankers through Spanish territorial seas or EEZ. Needless to say, any such rules would had to have observed the corresponding provisions of international conventions ratified by Spain, such as UNCLOS, where restrictions to free navigation by coastal states are limited.
In January, 2003, Spain also incorporated into its internal law the provisions of Directive 2001/105/EC of the European Parliament and of the Council of December 19, 2001, amending Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations covering the relevant activities of maritime administrations. It also incorporated Directive 2001/106/EC of the European Parliament and of the Council of December 19, 2001, amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using community ports and sailing in the waters under the jurisdiction of the member states, of international standards for ship safety, pollution prevention and shipboard living and working conditions.

Such incorporation has been carried out through the enactment of two royal decrees - Royal Decree 90/2003 and Royal Decree 91/2003 - implementing the said EEC directives in Spain. Concerning the latter, Spain has confirmed its commitment to achieve, at least, an annual total inspection volume corresponding to 30 per cent of the number of vessels which would have entered into Spanish ports during the last three years.

A great deal of criticism - justified and unjustified - has been directed at the Spanish administration’s reaction to the Prestige oil spill, both in respect of the measures adopted, and the subsequent regulations introduced. But some of these reactions deliberately avoid dealing with the cause of the accident. Considering that the duty to maintain tankers in a seaworthy condition primarily lies with their owners, this begs the question of whether we would be debating these issues if the standards to prevent pollution contained in existing international conventions, memorandums and regulations had been duly enforced or complied with, either directly or by delegation, by those states, authorities, or corporations who were expected to ensure that proper controls on the Prestige were followed. Uría & Menéndez is acting as counsel for the Spanish government in the Prestige case.