28th March 2022
Elle De Soomer, Head of legal affairs, shipping policy & security at the Royal Belgian Shipowners’ Association takes a critical look at the EU Directive 2004/35/CE on Environmental Liability (ELD) regarding environmental damage from shipping accidents, which are exempt at this moment.
While it can be argued that the ELD is an ambitious framework that embeds some new and often challenging concepts, it may be less well-equipped to define, allocate and financially secure liability for environmental damages from the international shipping industry. This might include problems arising from jurisdiction, choice of law, standard of liability, and enforcement of judgment that typically plague cross-boundary pollution claims and which by definition often occur in the shipping industry. Quite frequently, these problems result in protracted litigation and delayed payment of damages. These experiences demonstrate the difficulties that nations face in adopting liability systems.
As a result of a lack of legislation and/or a patchwork of legislation that would apply to international shipping, the International Maritime Organization (IMO) has put in place a set of international conventions covering liability and compensation for marine pollution.
The paper written by De Soomer that examines these questions is divided into four main sections. The first reviews the main features of the ELD. The second outlines three arguments for a global approach rather than a specific regime under the ELD. The third section explores four developments in European and international law that are needed to complement this regime to fulfil its maximum potential. The last section concludes that the IMO has put in place an effective and comprehensive set of conventions covering liability and compensation for marine pollution.