QCR Autumn 2018: EU law - When can a coastal State instigate proceedings against a foreign vessel that is the source of an oil spill in the coastal State's exclusive economic zone (EEZ)
Bosphorus Queen Shipping Ltd Corp v Rajavartiolaitos (The "Bosphorus Queen") - Case C-15/17, Court of Justice of the European Union, 11 July 2018
The Bosphorus Queen is a dry cargo vessel registered in Panama. According to the Finnish Border Protection Authority the vessel discharged oil into the sea while transiting through Finland's EEZ on 11 July 2011. The discharge was made at the outer edge of that EEZ approximately 25 to 30 km from the Finnish coast, in the Baltic Sea which is a special area under MARPOL. The oil spread over some 37 km in a strip roughly 10 metres wide. No clean-up measures were taken in respect of the oil spill, which was not observed to have reached the coastline and not found to have caused any damage.
The Border Protection Agency imposed a fine of EUR 17,112 on the owners of the vessel for the oil spill, on the ground that that oil spill had caused major damage or a threat of major damage to Finland's coastline or related interests, or to resources of its territorial sea or EEZ. The fine was imposed under the Finnish legislation implementing Directive 2005/35/EC on ship-source pollution.
The owners of the vessel brought an action before the Finnish court seeking annulment of the decisions relating to the provision of security and the imposition of an oil spill fine.
In its judgment of 30 January 2012, the first instance court considered that it had been shown that Bosphorus Queen had released at least 900 litres of oil, and given the environmental impact assessment, the court held that for the purposes of Finnish law on environmental protection in maritime transport, the oil spill caused a threat of major damage. On those grounds, the maritime court dismissed the action. Following appeals, the Supreme Court referred the question on the correct construction of the relevant provisions of the European Court of Justice (ECJ).
In order to answer the questions from the referring court, the ECJ examined the Montego Bay Convention 1982 (UNCLOS), the Marpol Convention 73/78 and the Convention Relating to Intervention on the High Seas 1969, and their relationship with EU law.
Convention Relating to Intervention on the High Seas 1969
In accordance with Article I(1) of this convention, parties to that convention 'may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences'.
Under Article II (4) "Related interests" means the interests of a coastal State directly affected or threatened by the maritime casualty, such as (a) maritime coastal, port or estuarine activities, including fisheries activities, constituting an essential means of livelihood of the persons concerned; (b) tourist attractions of the area concerned; (c) the health of the coastal population and the well-being of the area concerned, including conservation of living marine resources and of wildlife.
Article 220(3) to (6) of UNCLOS lays down the rules of jurisdiction pursuant to which a coastal State may take measures against a vessel which commits a violation of the international rules and standards relating to pollution by vessels in its EEZ.
EU Directive 2005/35
Article 7 of that directive, entitled 'Enforcement measures by coastal States with respect to ships in transit' provides in paragraph 2:
'Where there is clear, objective evidence that a ship navigating in the areas referred to in Article 3(1)(b) or (d) has, in the area referred to in Article 3(1)(d), committed an infringement resulting in a discharge causing major damage or a threat of major damage to the coastline or related interests of the Member State concerned, or to any resources of the areas referred to in Article 3(1)(b) or (d), that State shall, subject to Part XII, Section 7 of the Montego Bay Convention and provided that the evidence so warrants, submit the matter to its competent authorities with a view to instituting proceedings, including detention of the ship, in accordance with its national law.'
The ECJ ruled as follows:
- The EU being a party to UNCLOS, the court had jurisdiction to interpret that convention and must do so in light of MARPOL, to which the EU was not a party but all of the member states were. The court did not have jurisdiction to interpret the Intervention Convention, which was not binding on the EU, but it must be taken into account as part of the relevant rules for interpreting UNCLOS.
- "Clear objective evidence" in article 220(6) of UNCLOS and article 7(2) of Directive 2005/35/EC must be at hand not only for the commission of a violation, but also for the consequences of that violation.
- The expression "coastline or related interest" in article 220(6) of UNCLOS and article 7(2) of Directive 2005/35/EC had the same meaning as the expression "coastline or related interests" in article I(1) and article II(4) of the Intervention Convention. Article 220(6) also applied to non-living resources of the territorial sea of the coastal state and to any resources in its EEZ.
- Under article 220(6) of UNCLOS and article 7(2) of Directive 2005/35/EC, the resources of the territorial sea and the EEZ of a coastal State covered not only harvested species, but also species associated with them and dependent on them, such as animal and plant species that feed on the harvested species.It was unnecessary to take account of the concept of "significant pollution" present in article 220(5) of UNCLOS when assessing the consequences of a violation under article 220(6) and article 7(2) of Directive 2005/35/EC.
- It was unnecessary to take account of the concept of "significant pollution" present in article 220(5) of UNCLOS when assessing the consequences of a violation under article 220(6) and article 7(2) of Directive 2005/35/EC.
- In order to assess the consequences of a violation of article 220(6) of UNCLOS and article 7(2) of Directive 2005/35/EC, and whether measures by a coastal state were warranted, it was sufficient to establish the nature and extent of the damage likely to be caused by the discharge on the various resources and related interests of the coastal state. The nature of the substance and the rate of its spread were relevant factors.
- The specific geographical and ecological characteristics and sensitivity of the Baltic Sea area had a direct impact on the application of UNCLOS article 220(6) and article 7(2) of Directive 2005/35/EC regarding the definition and classification of the violation, but not automatically on the assessment of the damage caused to the resources and related interests of the coastal state.
- Member states could not impose more stringent measures than those laid down in article 7(2) of Directive 2005/35/EC, but they could take other measures equivalent in scope to those laid down in article 220(6) of UNCLOS.
This ECJ decision offers useful guidance on circumstances in which a coastal State may assert jurisdiction in its EEZ namely, the interests covered by coastal State jurisdiction, and on the evidence required to justify the adoption of enforcement measures against a vessel in transit.