More speed, less haste

BETWEEN 1970 and 2002, Spain was heavily punished by oil pollution, with as many as fourteen vessels spilling a total of 464,170 tons of oil in its waters. The most recent of these was the Prestige. This spill, which primarily hit the Galicia region, affected up to 29,000 local people, 5,000 of whom have filed for damages. The region’s ecology has been seriously affected too, and it is estimated that it will take between fifteen and twenty years to recover – a bitter blow considering that the region is well-known for its seafood and shellfish. It’s no surprise then that the global bill for clean-up and damages from the Prestige is estimated at around four billion euros.

Following this incident, the Spanish government acted quickly, filing criminal charges in the local Penal Court of Corcubión and launching a battery of regulations. Among these was RDL 9/2002 banning from Spanish ports, terminals and places of anchorage, regardless of their age or flag single-hull tankers carrying persistent oils. However, in passing this rule, the government ignored MARPOL 73/78 (Rule 13 G), the EU Directive 417/2002 relating to phasing-out, and Article 211.3 UNCLOS.

The government also failed to recognise that, under the EU Places of Refuge plans which come into force in July 2004, a single-hulled tanker in distress within Spanish waters could not be given a safe haven due to the very prohibition entailed in RDL 9/2002. In addition, along with Portugal and France, and without EU legal back-up, the Spanish government claimed entitlement to exclude tankers from the Exclusive Economic Zone (EEZ)– a move apparently justified by reference to Articles 56 and 73 of UNCLOS 1982.

The commercial implications of this over-regulation have primarily fallen on the Spanish shipowning community. The Spanish tanker fleet, both national and foreign-flag, currently transports about 4.5 million tonnes of cargo. While some of these vessels are double-hulled, many are single-hulled, leaving some owners with no choice but to renew a fleet that is already small in capacity. The danger is that, as a result, the Spanish fleet will diminish considerably at a time when charter freights continue to go up. There is little to cushion the blow for Spanish owners except for a €300 million loan from the Official Credit Institute, with more to come by 2007.

Many of the initiatives hurried through by the Spanish government were tolerated by Brussels despite both European and international law being ignored at times. An example is the new Law 48/2003 relating to the financial and services regime in Spanish ports. This law was supposed to respond to a directive of the European Parliament and Council on market access to port services, which ultimately was not adopted by the EU Parliament. The Spanish law on the liberalisation of port services is in the process of coming into force but will remain isolated until an EU Directive comes into force.

Meanwhile, on February 6, 2004, the Spanish position on Places of Refuge was unveiled in RD 210/2004. The Spanish government has now implemented EU Directive 2002/59 (monitoring, follow-up and information on maritime traffic) but its contribution has been noticeably restricted by:

  • framing operational plans and protocols for action only after lengthy and detailed consultation and analysis of the circumstances expected to be encountered;
  • making Places of Refuge an issue for licence and not a matter of duty for the Spanish authorities;
  • making no provision for the establishment of reception facilities;
  • adopting a bureaucratic licence procedure, which will struggle to work in emergencies;
  • demanding financial security, in case of danger to life or the marine environment, of up to €7 million for tankers of less than 2,000 gt plus €10,000 per ton for vessels in excess of that figure, and €2.5 million plus €600 per excess ton for other vessels;
  • requiring security, in the form of a bank guarantee, to cover all damages and claims of any kind that may be caused by the ship in distress or its cargo – something which is very difficult for P&I clubs to provide.

Although the regulation has now come into force, it is hoped that these severe conditions will soon be reviewed.

Also, on February 14 this year, the ‘Saint Valentine Package’ was published, which included two other regulations – RD 209/2004 implementing EU Directive 2003/75 relating to rules for safety on board passenger vessels, and RD 253/2004 relating to the prevention and combating of pollution during the handling of hydrocarbon cargoes at Spanish ports and installations, which develops certain rules of the OPRC 1990 Convention.

Following the Prestige disaster, the Spanish government enacted no fewer than seventeen pieces of legislation – a lot, by anyone’s standards. While there is plenty of law around, there is no contingency plan in place. Let’s hope another Prestige doesn’t happen in Spain.