Study On Maritime Safety 2002 En

Maritime Safety in the Baltic Sea Region 2002Final ReportOf the Baltic Sea Institute for Maritime andEnvironmental Law of theJuristic Faculty, RostockCommissioned by the Landtag of Mecklenburg-VorpommernbyProf. Dr. Wilfried Erbguth (General management)Dr. Uwe Jenisch, Kiel (Project management and revision)Michael Herma, Rostock (Revision)Maxi Keller (Research and manuscript)Kiel and Rostock, August 2002“Substandards will not be tolerated.”(William O ́Neil, Secretary General IMO29.07.2002 at the opening of the XVI.International Pilots’ Congress in Hamburg)INTRODUCTION AND OVERALL RESULTS...................................................61. INTERNATIONAL REGULATIONS / AGREEMENTS OF THE IMO..................131.1 Overview of IMO Agreements.................................................................131.2. ISM Code / International Safety Management System (Phase 2).......................141.3. Intensification of maritime legal liability....................................................171.3.1. Protocol 1996 to Liability Limitation Agreement of 1976.............................181.3.2. Oil Liability System / Supplementary Fund...............................................191.3.3. Bunker Oil Liability Agreement...........................................................201.3.4. Athens Agreement for Passengers and Belongings......................................211.3.5. HNS Agreement ............................................................................221.4. AIS and VDR equipment.........................................................................23.1.5. AFS Agreement..................................................................................241.6. Ballast water management.....................................................................271.7. Wreck Disposal Agreement, Wreck Removal Convention... ...........................308. PSSA Guidelines..................................................................................301.8.1. PSSA Wattenmeer...........................................................................311.8.2. PSSA Areas in the Baltic Sea..............................................................331.9. Other IMO Initiatives............................................................................331.9.1. Port Safety – Port Security and Anti-terrorism Measures...............................331.9.2. International Nautical Language...........................................................401.9.3. Tasks of Flag States..........................................................................402. EU REGULATIONS..............................................................................422.1. ERIKA 1 Package................................................................................422.1.1. Guideline on vessel inspections and inspection organisations..............................(Classification association guidelines)......................................................422.1.2. Guideline on port state control...............................................................442.1.3. Earlier introduction of double hulled tankers................................................452.2. ERIKA 11 Package...............................................................................472.2.1. Vessel monitoring guideline...................................................................472.2.2. Establishment of a supplementary compensation fund....................................492.2.3. European Maritime Safety Agency..........................................................502.3. Other EU Regulations............................................................................522.3.1. Disposal of ship’s waste in ports.............................................................522.3.2. Guideline on safe loading and unloading of bulk goods carriers........................532.3.3. Guideline on reporting formalities..........................................................552.3.4. Regulation through the Safety Committee......................................................................562.3.5. Safety in RoRo and passenger vessels................................................................................572.4. The Role of the EU in the Maritime Safety Concept.................................................................593. BALTIC SEA REGULATIONS (HELCOM).............................................................633.1. The 10.09.2001 special conference of Baltic Sea States Transport Ministers..................The results and their implementation.............................................................................633.2. Other HELCOM activities....................................................................................................723.3. Deliberations on an international coastguard in the Baltic Sea...........................................753.3.1. Collaboration of border authorities – safety partnership in the Baltic Sea.............................753.3.2. Anti-terrorism legislation in Germany............................................................................783.3.3. Theoretical model for a joint coastguard in the Baltic Sea.................................................793.4. Implementation of the HELCOM –Recommendations............................................1. Amended Baltic Sea Regulation..................................................................834. NATIONAL INITIATIVES / OTHER MARITIME SAFETY ANDENVIRONMENTAL ASPECTS...............................................................................844.1. New regulation for maritime safety inspection legislation (SUG)/ ..................................2. Seaworthiness legislation.............................................................................................844.1.1. Contents of the new SUG...............................................................................................844.1.2. International legal statutes..........................................................................................874.1.3. SUG as federal law?.........................................................................................................914.2. Legislation for conservation of environment and nature in the EEZ................................934.2.1. Nature conservation problems and marine conservation areas......................................944.2.2. Marine conservation areas in international law...................................................................954.2.3. European initiative in the EEZ........................................................................................984.2.4. National nature conservation legislation in the EEZ....................................................1004.3. Offshore wind energy and maritime safety.........................................................................1034.4. Economic incentives for environmentally friendly shipping...........................................1064.4.1. Reduced charges for SBT and double hulled tankers in European ports.....................1074.4.2. Green Award..................................................................................................................1084.4.3. Swedish system of differential sea lanes and port charges........................................................1104.4.4. Hamburg model...................................................................................................................1114.4.5. Lübeck model.......................................................................................................................1134.4.6. Other reductions in port charges..................................................................................1145. IMPROVEMENTS IN MARITIME EMERGENCY MANAGEMENT.......................1165.1. Instruments for a centralised emergency management in Bundestag and Landtag......1165.2. Emergency Response Unit as a result of the Maritime Emergency Precautions.........Project Group...............................................................................................................1215.2.1. Jurisdictional centre.....................................................................................................1212. Maritime Centre Location.......................................................................1223. Emergency Response Unit and overlapping authority in the event of accidents.....1224. Legal critique on Federal - State agreement on Emergency Response Unit..........1255.2.4.1. Implementation of State legislation through the Federation?............................1265.2.4.2. Official Aid.................................................................................1275.2.4.3. Loan of officials............................................................................1345.2.4.4. Resumé.......................................................................................1395.2.5. Federal – State agreement on combating marine pollution..............................1405.3. Emergency Towing Plan.....................................................................1415.4. Plan for ports of refuge.......................................................................1425.5. Exercises.........................................................................................1445.6. Measures in the Kadet fairway................................................................1455.7. Training and instruction....................................................................146DOCUMENTS..........................................................................................150LITERATURE INDEX...............................................................................152ABBREVIATIONS INDEX .... ....................................................................157Introduction and overall resultsThe expert report “Maritime Safety in the Baltic Sea Region 2002” is a further extrapolation and update of the original report “Legal Review of Maritime Safety, taking particular note of the interests of Mecklenburg- Vorpommern”[1], and the supplementary report of the same title[2]. The “Maritime Safety in the Baltic Sea Region 2002” report currently to hand concerns matters having arisen in the interim and leading up to July 2002.In terms of structure, compilation and contents, the report follows with certain departures the order of salient points requested by the principal on 08.01.2001. Taking into consideration the internal disposition of the organisations responsible for maritime safety and the incumbent legislators and administrative bodies, the report has been laid out in the following order:1. International Regulations / IMO Agreements2. EU Regulations3. Baltic Sea Regulations (HELCOM)4. National Initiatives / Other maritime safety and environmental aspects5. Improvements to maritime accident management.Three overall results and recommendations have been compiled in this section at the beginning of the report; further on in the report analyses and assessments with further detailed considerations are often included in italics at the end of the respective passage.The period covered by the report was notable for the lively and constructive discussions in the responsible bodies, in expert groups and the media, which all led to the conclusion that:Maritime safety consciousness is becoming considerably sharper.MPs from four parties tabled a joint motion[3] on 25.04.2002 in the German Bundestag calling on the Federal Government to submit a report on maritime safety in the Baltic Sea Region by 31.05.2002. The report from the Federal Government on “Maritime Safety in the Baltic Sea” has been available since 03.06.2002[4]. The findings it contains are fully covered in this expert report. The statement in Side 4 of the report merits special mention at this point, that only 10% of the contaminants in the Baltic Sea originate from shipping, while some 90% originate from sources on land. A motion tabled by MP Wolfgang Börnsen and other CDU MPs aimed at “Establishment of a Maritime Safety Control Centre”[5] was defeated by a majority in the Bundestag.The technical discussion in the shipping sector, the administration of the Federation, its States and the international bodies is now being conducted on a broader plane. Especially notable is the Resolution of the 10th. Parliamentary Conference on Cooperation in the Baltic Sea Region which took place in Greifswald on 3./4.09.2001[6].New agreements, guidelines, regulations and organisational measures are all being reported. In many cases some legal questions have arisen in close relationship with the technical instructions and practical administrative action, e.g. data protection for the new automatic vessel identification system (AIS).It is indeed good news that new regulations in the international and national bodies are now being negotiated and concluded much faster than before. The new IMO norms for such issues as port security, anti-terrorism measures and the EU regulations of both “Erika Packages” are also progressing at a gratifying pace. Further, also from the positive viewpoint, the plan for the introduction of the system for automatic vessel identification (AIS) is about to be implemented and the Baltic Sea will be one of the first regions to use it.The Federal Government has set in action the Emergency Response Unit as a central control for complex damage situations and made substantial improvements to the emergency towing plan for the Baltic and North Seas with the signing of new charter contracts. Other examples of progress in safety measures are also included in this report.One obstacle in the way of implementation of regulations is the excessive time being taken in the ratification and enactment of international targets. The establishment of a “German Coastguard” combining the many responsibilities of the federation and the coastal States has regrettably also not progressed further. Maritime safety training, including familiarisation with the maritime legal regulations relating to safety at sea, is in need of improvement in Germany and many other flag states.Despite these shortcomings there have been positive overall developments. The following items are pivotal to improvements in maritime safety in the Baltic Sea (and also other maritime regions):expedited international legislation in the IMOport security and anti-terrorism measures at sea as problems arising since the incident of 11th. September 2001maritime safety as a new main emphasis in the EU transport policysteps towards the implementation of the demands of the Special Conference of Transport Ministers of the Baltic Sea States of September 2001initial results of the German Project Group for Maritime Emergency Precautions.New legislation, regulations and the attendant controls are crucial. A safety culture also calls for environmental consciousness and the willing commitment of the persons responsible.The following three central recommendations[7] in the report require concrete political action:Recommendation 1The deficits in the ratification of important international agreements in the Baltic Sea Region must be made up. Parliaments, governments, commercial and environmental interest groups must bring pressure to bear on all the Baltic Sea States to enforce as many new and existing agreements as possible.Legislative intentRegarding this recommendation, a gratifying number of agreements have already been ratified and adopted by all the Baltic Sea States, including the following:• IMO (International Maritime Organisation)• SOLAS (Safety of Life at Sea)• SAR (Search and Rescue)• LL (Freeboard)• TONNAGE (Surveying)• COLREG (Prevention of Collisions)• CSC (Container Safety Convention)• STCW (Training of Seafarers)• FAL (Facilitation of International Sea Transport )• MARPOL (Marine environmental protection by shipping)• HELSINKI (Protection of Baltic Sea).Considerable deficits, such as those listed in the following table, must be made up before more uniform standards of safety can be attained in all the Baltic Sea States.Current State of Ratifications / Partiesto important agreements on maritime safety in the Baltic Sea Region [8]|Agreement |Internat. |DAN |EST |FIN |DEU |LET |LIT |POL |RUS |SWE || |Abbrev. | | | | | | | | | ||UN Law of the Sea |LOS | | |+ |+ | | |+ |+ |+ ||Stockholm | |+ | |+ |+ | | | | |+ ||(RoRo) | | | | | | | | | | ||Port |PSC |+ |(+) |+ |+ | | |+ |+ |+ ||State | | | | | | | | | | ||Control | | | | | | | | | | ||Intervention | |+ | |+ |+ |+ | |+ |+ |+ ||Civil |CLC |+ |+ |+ |+ |+ | |+ |+ |+ ||Liability | | | | | | | | | | ||Convention | | | | | | | | | | ||FUNDS |FUND |+ |+ |+ |+ | | |+ |+ |+ ||Athens |PAL | | | | | | |+ |+ | ||(Passenger Liability) | | | | | | | | | | ||Limitation |LLMC 76 |+ | |+ |+ |+ | |+ | |+ ||of Liability 76 | | | | | | | | | | ||Convention on |LLMC | | |+ |+ | | | |+ | || |Protocol 96 | | | | | | | | | ||Limitation of | | | | | | | | | | || | | | | | | | | | | ||Liability 96 | | | | | | | | | | ||London |LDC |+ | |+ |+ | | |+ |+ |+ ||Dumping | | | | | | | | | | ||Convention | | | | | | | | | | ||Convention on Oil |OPRC |+ | |+ |+ | | | | |+ ||Pollution | | | | | | | | | | ||Preparedness | | | | | | | | | | ||Salvage |SALVGE |+ |+ | |+ |+ |+ | |+ |+ ||Convention on Hazardous |HNS | | | | | | | |+ | ||and Noxious | | | | | | | | | | ||Substances | | | | | | | | | | ||Bunker Oil |BUNKER | | | | | | | | | ||Liability | | | | | | | | | | ||Anti-Fouling |AFS | | | | | | | | | ||Systems | | | | | | | | | | |Recommendation 2Staffing and material costs will require additional funding. These attendant costs are unavoidable if Germany wishes to further develop and implement high standards of maritime safety. This outlay will be incurred for the monitoring of foreign vessels as a port state within the framework of Port State Control and traffic monitoring (e.g. AIS) as well as by the coastal State for the provision of an effective coastguard service. In addition, an optimum basic and further training programme for seafarers, including training assignments in accident management is required.Legislative intentThe international directives (IMO, EU and HELCOM) for maritime safety and its implementation at federal and State level are becoming increasingly detailed. The attendant outlay for suitable personnel and equipment for inspection duties is also rising. Specially qualified personnel is called for if German interests are to be represented in the international organisations. State and port authorities will also incur additional costs for water police, pollution control, port security and the provision of basic and further training. There can be no cutting of corners in matters of maritime safety; some synergy effects could however arise from the merging of federal and State services (e.g. in a centralised coastguard).Recommendation 3The Emergency Response Unit should be further developed in the medium term to replace or supplement a centralised German coastguard. The authority of the Emergency Response Unit director should in such a case be based on a constitutional amendment to State legislation and extend to accident management at sea and in port.The sovereign federal maritime services (Federal Transport Ministry (BMVBW) services transport, Maritime Frontier Guard, Maritime Customs and Excise, Fisheries Authority) should be combined in a German Coastguard under the responsibility of one federal minister and be subject to a uniform command for routine assignments and accident management. The existing respective State assignments should be brought under the aegis of the German Coastguard. The assignment specification for the Emergency Response Unit and Coastguard should be extended to include port security and anti-terrorism measures.Legislative intentThe Emergency Response Unit is merely a necessary first step towards the consolidation of all tasks relating to waterborne accident management. Accident management, pollution control, port security and anti-terrorism measures all call for optimum efficiency of execution. Leadership rather than cooperation and coordination is called for because maritime safety, like safety in air travel, is in the final analysis a question of protection of society. The German Coastguard must by its presence and capabilities represent a real deterrent effect to all potential offenders, especially to vessels under so called flags of convenience. Only a merger of all existing maritime services can guarantee that tasks arising in the daily routine, for instance in accident management, are effectively addressed. Lack of cooperation and discord problems would be eliminated by this form of organisation.A unified German coastguard would also bring savings as the administration and overhead costs for federal and State services would be pooled.International Regulations / IMO Agreementsa Overview of IMO AgreementsThe activities in the IMO have gained momentum. Working group sittings with comprehensive agendas are being called in rapid succession. Various existing agreements are being reviewed (ISM Code, Liability Agreement, PSSA Guidelines). New statutory definitions such as the Bunker Oil Liability Agreement, HNS Agreement on Hazardous Cargos, AFS Agreement on Noxious Ship Paint, Agreement on Ballast Water Management and Disposal of Wrecks are all being codified for the first time.Concerning the call for expedited IMO action and ratification without further delay of pending agreements by the member States, the “Bergen Declaration” of the 5th. International North Sea Protection Conference of March 2002 merits special mention[9]. It quotes in Chapter IV, “Reducing the Environmental Impact from Shipping”, the joint position of the nine North Sea States and the EU on questions of maritime safety, formulated as a political demand, and thus forces a brisker pace in procedures. The next North Sea Protection Conference 2005 in Sweden will concentrate on the question of pollution originating from ships.Document II of the MARPOL Agreement “Guidelines on the Monitoring of Pollution from Bulk Transport of Hazardous Liquids ” is pending revision for 2004. It concerns among other things stricter limits on the venting of chemicals. The MARPOL Document IV “Sewage” will shortly come into force as soon as the threshold of 50% of total world ship tonnage is reached after ratification from Norway. Document VI of the MARPOL “Guidelines on the Limitation of Atmospheric Pollution from Ships” is soon to be ratified and implemented in Germany [10]. In regions such as the Baltic and North Seas the sulphur content in fuel oil will then be limited to 1.5% as opposed to the 5% permitted at present.These regulations could come into force internationally in about 2 years but initially still require ratification by 15 States with 50% of total world merchant fleet tonnage. Only five States are signatories to date[11]. All EU member States are now preparing the way for this step and Panama is also considering entry. The various instruments, defined under No. 0 of this report, for emission dependent port charges and other ecologically graded rates can be applied as soon as Document VI comes into international force.The EU wishes to take a more prominent position on international maritime safety and is preparing for full membership of the IMO; it is at present only granted observer status[12]. The EU has to date only been represented there by its member States. Membership has been on the agenda of the EU Council of Ministers since 19.06.2002 but no decision has been reached as yet. At the same time the EU is seeking membership in the International Civil Airlines Organisation (ICAO) in the interest of international transport safety, which has assumed high political prominence since the events of the 11th. September 2001. The positive role the EU could play in the IMO became clear when the EU States recently successfully brought about the earlier phasing out of single hulled tankers through the IMO. The membership of the EU calls for an amendment to the IMO statute[13], as only States and not regional organisations can become members of the IMO at present.b ISM Code/International Safety Management System (2nd. Phase)With IMO Resolution A.741(18) of 04.11.1993 the IMO Assembly passed the International Code for the Organisation of a Safe Shipping Operation (ISM Code) over 8 years ago. This has been binding worldwide through the new Chapter IX of the SOLAS Agreement [14], under the heading “Measures for the Organisation of a Safe Shipping Operation”, since 1998[15].While SOLAS has up to now been principally involved in the continuous further development of technical guidelines on construction, fitting out and handling of seagoing ships’ cargos, the ISM Code sets standards for the management system of vessels (on board) and the shipping company (on land). It is accordingly concerned with people and decisions on organisational measures in business operation and basic and further training in maritime safety which can be approved through credentials (certificates). Human failing as a cause of accidents should be guarded against wherever possible. An important consideration here is a keener sense of responsibility in the form of quality control on the part of the company. The ISM Code has applied in its first phase since 01.07.1998 to all passenger ships, tankers, bulk carriers and high speed vessels. In this phase 6,500 shipping companies with a fleet of some 19,000 vessels had to be inspected and certified[16].The second phase came into effect 01.07.2002[17], extending the ISM Code to include all other vessels over 500 GRT in international service. All dry cargo freighters, coasters and other vessels in the Baltic Sea, (with the exception of national and military vessels), are now subject to ISM quality control where they can be inspected through port state control channels. Vessels without the necessary certificates after this date are liable to face strict sanctions such as detention in port.[18].The safety management system (SMS) enforces an analysis of the entire workings of the concern, on board and on land. Concern in this context means shipping company, ship owner, bare boat charterer and other locations or persons. The safety management system extends to[19]:the environmental protection and safety policies followed by the concern,observation and documentary proof of safety in the workplace, maritime safety and environmental protection,defined levels of procedure and lines of communication between ship and company,procedures for reporting of accidents,procedure for internal system controls (audits) and their examination by the company management,nomination of a person designated as a point of contact between ship and company, to supervise the introduction and implementation of improvements.Salient details are to be entered and extrapolated in a company handbook.The external auditing can be carried out in Germany by Germanische Lloyd, Bureau Veritas or Det Norske Veritas. This is authorised in other countries by their own local classification associations. The auditing takes the form of a scrutiny of the documentation, interviews with employees and random sampling. The actual certificate for vessels under a German flag is issued by the Maritime Trades Association, Ship Safety Division. The shipping concern or company receives a Document of Compliance (DOC) and vessels receive a Safety Management Certificate (SMC).Phase 2 of the ISM Code implemented from 01.07.2002 - the certification of all remaining seagoing vessels - in particular dry cargo freighters and their operators, means further improvements in safety. The implementation of the ISM Codes for practically all merchant vessels will take some time. The ISM procedure incurs costs, but offers savings in the long term through the avoidance of accidents and damage, lower insurance premiums, safe operating procedures and also economic incentives. The advocates anticipate that environmental and safety consciousness will then become considerably sharper, also in ships under many so called flags of convenience. Critics suggest that 15-25% of the operators at the lower end of the scale - the so called “rust buckets” – will not recognise the advantages of the ISM Code[20] and will have to be forced out of the market by port state controls and “blacklists”. It will be in the hands of the flag states to set standards for their vessels and operators through speedy certification. At the same time, they can as port states inspect the foreign flagged vesselsthrough intensified port state controls in their ports to ensure that the ISM Codes are observed and thus enforce the safety culture. Higher costs and personnel requirements will inevitably be incurred as a result .Discussions are currently under way in the IMO as to whether the ISM inspections should be carried out more often in the future - i.e. yearly – together with the scrutiny of vessels as legally stipulated by the classification associations. This recommendation, apparently from classification association circles, was dismissed by the shipping concerns. They maintain[21] that the classification associations (technically) inspect the vessel, while the ISM procedure concerns inspection of the quality of business policy and ship management.A problem may in fact arise here, as many classification associations are entitled to apply ISM Codes; for example, the Italian association RINA is regarded as very generous and a conspicuous number of vessels which have been involved in accidents[22] count among their customers. The quality control exercised by classification associations, viz the “control over controllers”, is therefore a part of the EU classification guidelines, constituting a passage from the EU initiatives.This example illustrates the importance of the prompt accession of as many Baltic Sea States as possible to the EU; by this means, with the EU as a community legislation, the quality of maritime safety will be brought to a uniform pitch.c Intensification of maritime legal liabilityThe experience of the States with serious environmental damage at sea together with the considerable outlay for cleaning up consequential pollution at sea and on land have set in motion various initiatives for the intensification of maritime legal liability. These negotiations are also under way in the IMO and are supported by the EU and its member States. Insofar as these directives will shortly become binding in national law, they are to be implemented through national legislation (i. e. through ratification and executive order/regulatory statutes).Preparations are currently under way for :a further increase in the Oil Liability Funda new bunker oil liability agreement,an intensification of the Athens Agreement on Personal Injury,a new liability agreement for hazardous goods (HNS Agreement), described in brief in the following passages.i Protocol 1996 to the Limited Liability Agreement of 1976It should be borne in mind beforehand that Germany has recently ratified[23] the Protocol of 1996 to the Limited Liability Agreement of 1976[24]. This agreement limits the liability of the ship owner to the maximum sum calculated on the GRT size of the vessel. Germany accordingly received only 3.3 mio. DM from the insurance of “PALLAS” based on the 1976 Agreement, while about 8.4 mio. DM would have been due under the terms of the Protocol of 1996. The Protocol of 1996 raises the liability and insurance contribution on average 2.4 times. However, 10 ratifications/accessions are called for before the increase can come into force. Up to now, apart from Germany, the Russian Federation, England, Finland, Denmark, Norway and Sierrra Leone have also ratified. It is now to be hoped that other EU States will follow in quick succession so that maritime safety can be brought in line with the higher insurance obligation. Recommendation No. 26 from the Grobecker Commission report has in any case been implemented with the German ratification.This state of affairs, i.e. that the number of parties to the 1996 Protocol of the Limited Liability Agreement of 1976 is still insufficient, should be reason enough to call for all the Baltic Sea States to ratify without delay in order to create the most uniform liability regime possible for shipping in this region. Among the Baltic Sea States Denmark, Sweden, the three Baltic Republics and Poland are still lacking. The 5th. International North Sea Protection Conference of Bergen of 20-21.03.2002, raised the issue at the request of Germany in its Ministerial Declaration under No. 37.One can only realistically consider higher liability limits if the Protocol of 1996 comes into force. The Protocol proposes a simplified procedure by which the appropriate highest liabilityfigure can be decided with a qualified majority in the IMO Legal Committee. This dynamic possibility would achieve a great step forward in the tedious drive towards a resolution of the liability dilemma in oceanic navigation.ii Oil Liability System/ Supplementary FundAlso relating to a liability system for oil tankers, as described in the main report[25], are an Oil Liability Agreement[26] with liability regardless of fault and obligatory insurance and a Fund Agreement [27] for compensation for those damages which exceed the liability limits of the Oil Liability Agreement, currently 135 mio. SDR = 197 Mio. €. The IMO had already in autumn 2000 raised the compensation sums of the International Oil Pollution Compensation Fund - IOPC Fund – by 50% from 135 mio. SDR to 202,5 Mio. SDR = 295 mio. €. This increase comes into force on 01.09.2003 and represents a temporal parity with the increased risks in tanker traffic.As part of the ERIKA II Package[28] the EU Commission has presented its own draft directive on the establishment of a supplementary EU compensation fund which practically failed in 2001 in the Council of Ministers and the EP, because many wished to give preference to the liability increase within the IMO system. The Council of EU Transport Ministers agreed among themselves to jointly pursue the liability increase for oil tankers in the IMO. This pressure for reform is now showing the first signs of success in the IMO.A Diplomatic States Conference, to take place in 2003, intends to pass a new Protocol on the international agreement on the establishment of the International Fund for Compensation for Oil Pollution of 1992, which should top up the existing fund raised from the oil industry through a supplementary fund. The ultimate volume of finance is pending the advice of the Conference.The oil importing industry, which anticipates incurring considerable costs, is calling for the shipping sector to contribute to the supplementary fund. The shipping sector has for its part offered a voluntary increase in the benefits of the P&I Club, the third party insurance of the shipping sector, especially for a higher compensation for oil spills from smaller tankers. This issue too is pending the advice of the Diplomatic Conference.iii Bunker Oil Liability AgreementA Diplomatic States Conference of the IMO passed the new Agreement on Liability for Bunker Oil Pollution[29] for signing in April 2001. It introduces a liability regardless of fault for ship owners, fitters and ship operators for pollution damage from bunker oil and the costs of rectifying such damage within the sovereign waters and EEZ of the party States[30]. The existing liability rules, based on national law[31] for other persons, i.e. charterers, remain unchanged. The liability however only applies to vessels over 1000 GRT and can be limited to the general Liability Limitation Agreement of 1976 through the establishment of a separate fund. As soon as the Protocol of 1996 to this Liability Limitation Agreement [32] comes into force the liability limit for bunker oil will be in line with its higher liability limits.The Bunker Oil Liability Agreement obligates the ship owners, fitters and ship operators to take out and register insurance with direct claim against the insurer for all vessels of more than 1000 GRT. The certificate is to be carried on board.The agreement comes into force one year after 18 States, including five States with not less than 1,.000.000 GRT total shipping tonnage each, have ratified. This could take a few years.In the German view this agreement closes an important liability loophole which became apparent through the PALLAS accident when over 600t. of spilled fuel oil had to be cleaned up and this was only partly covered by the ship operator’s liability. Large modern merchant ships could feasibly carry up to 8000t. of fuel oil on board – much more than small tankers can carry as cargo. There is still a liability loophole since vessels under 1000 GRT, for example smaller cruise ships or fishing vessels, do not come under this agreement.Recommendation No. 30 in the Grobecker-Commission Report is accordingly implemented in principle. The EU and the Baltic Sea States are called on to sign and ratify the Bunker Oil Liability Agreement without delay. The Council of EU Ministers is preparing the joint ratification of the EU States; this is however running into opposition at present from Belgium and Austria. The EU Commission has recently raised the fundamental objection because it concerns a so called. “mixed agreement” which can (ostensibly) only be signed jointly by all the EU States and the Commission.vi Athens Agreement for Passengers and LuggageRegarding the Athens Agreement of 1974 in the framework of the Protocol of 1990 on the Carriage of Passengers and their Belongings by Sea[33] the IMO Legal Committee has suggested that a Diplomatic Conference be scheduled for October 2002. In this agreement too, an obligatory insurance should be introduced on the lines of the Oil Liability Agreement with direct claim by the victims against the insurers. Further, the basis of claim liability should be weighted more in favour of the passengers. For typical damages at sea (sinking, collision, stranding, explosion, fire and insufficient safety on board) a strict liability has been proposed up to a damages limit, the amount still to be decided. For additional personal injury and other personal injury and damage to belongings the carrier should possibly be held liable for assumed fault. The highest liability payout for passenger and luggage damages should be increased by an amount still to be decided. A considerable increase in insurance premiums for passenger ferries and cruise ships must be reckoned on.Germany is not yet a signatory to this agreement, which came in force in 1987, as the highest liability sum of 46.000 SDR per passenger was considered too low. Germany is calling for liability sums of up to 320.000 DM. German accession is possible if a significant increase in the liability sum results – as anticipated – from the coming conference. It is anticipated that the new agreement will, at least in Europe, lead immediately to adaptation of the national legal directives.The EU Commission[34] has for its part made the first recommendations which propose a strict liability, regardless of fault, of up to 250,000 € per passenger with obligatory insurance and direct claim against the insurer. In cases of insurer’s fault the liability should be unlimited.To date only Poland and Russia among the Baltic Sea States are party to the agreement.vii HNS AgreementThe HNS Agreement [35] on liability and compensation for damages incurred in the carriage of hazardous and toxic substances by sea, concluded in 1996 in the IMO, should supplement the existing agreement on the liability for damage from oil spills (tanker liability), in that a compensation fund will be established for other hazardous substances carriers as well as tankers; this is to be financed by the – i.e. the importers - of hazardous substances cargos. The compensation figure to 250 Mio. € SDR per damages case. A practical problem arises here for the EU States, as by reason of equality of competition a common administrative system will be required to report and record the hazardous substances cargos and to raise the contributions to the HNS fund. The costs of the system could consequently impact on the end user.Only Russia and Ireland have ratified this agreement to date. The EU Council of Transport Ministers concentrated yet again on 06.07.2001 on the urgency of a concerted ratification through the EU and its member States. The United Kingdom proposes that a date should be fixed for ratification, for instance June 2004.The problem remains unsettled in the meantime. However, the Council spoke in favour of preparing a timetable for prompt ratification. This task was delegated to the AStV (the permanent working group of EU ambassadors in Brussels).The Council Secretariat suggested on 22.11.2001 that a decision should come from theCouncil as authorisation for the member States to ratify the HNS Agreement[36].Recommendation No. 28 from the Grobecker-Commission report has therefore not yet achieved the hoped for success, but the efforts being made in the EU are showing promise.e AIS and VDR EquipmentThe terms of the SOLAS Agreement [37], include the mandatory installation of the Automatic Identification System (AIS) and Voyage Data Recorder (VDR), better known as the “black box”, in new tankers, passenger and freight vessels from 01.07.2002. According to the phasing in the (still) official timetable, all seagoing vessels over 300 GRT must be equipped with AIS by 2008. Negotiations are under way in the IMO to bring this deadline forward to 2004[38]. A definite statement on the ultimate date is expected by the end of 2002. The first orders for AIS equipment have been placed with Leica Geosystems Marine GPS with branches in California and Copenhagen[39]. The Federal Navigation and Hydrographical Authority (BSH), Hamburg/ Rostock issues the die technical permits. The cost per AIS transponder has been estimated at 10,000 €. A considerably cheaper unit (and with it an additional market!!) is also projected for sport and leisure boating: units suited to this purpose are expected to cost 2,000 €. Regarding VDR units, the Swedish manufacturer Consilium Navigation AB and the British manufacturer Broadgate have already run their VDR equipment through the German BSH approval procedure[40]; these can now be installed.Each unit weighs about 12 kg, and can be installed atop the wheelhouse and recovered by divers in the event of an accident. It will record information on the last manoeuvres of the ship which may have led to the accident.The German manufacturer Avecs in Fichtenwalde has developed an integrated AIS/VDR unitwhich has also been certified by the BSH[41].The setting up of a national infrastructure in Germany will be begun in time for the mandatory fitting of AIS and VDR in the first vessels, beginning 01.07.2002. The BMVBW is to equip the traffic centres along the German coasts – in the Baltic Sea the Rostock traffic centre – with receivers at a total cost of 12,5 mio. €[42].Information on the introduction of AIS equipment in the Baltic Sea, i.e. Topic IV of the Special Conference of Baltic Sea Transport Ministers in Copenhagen on 10.09.2001 can be found in other parts of this report [43].1.5. AFS AgreementInternational Agreement on the Control of Harmful Anti-Fouling Systems on Ships (AFS)After a 13 year long process, promoted and supported by many environmental organisations, the new worldwide agreement on a ban on noxious ship paint, the “International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001”[44], was passed at the conclusion of the Diplomatic Conference of 01 – 05.10.2001 in London by 68 of the 75 States present there[45].The use of noxious underwater paints for sports craft was prohibited long ago in Germany[46];the international merchant shipping sector has now acknowledged that conventional organotinbased (tributyl tin, TBT) paints lead to serious harm to the marine environment [47].According to the new comprehensive agreement, Article 21, Appendices 4 and 2, paints containing TBT cannot be newly applied to vessels after 01.01.2003. They will be strictly prohibited after 01.01.2008, i.e. they must be stripped from existing vessels or sealed with a “sealer”. Suitable TBT-free ship paint with a life of up to 5 years are now available but are costlier than conventional paints.The agreement comes into force, according to Article 18, 12 months after the 25th. ratification/accession or signing, provided that these States together represent at least 25% of the total world shipping tonnage. Germany and the EU States, who together represent over 20% of world merchant tonnage (with the applicant States actually 30%), are striving for an early ratification. There are nevertheless hopes that it will be enforced still earlier in 2003. The EU is likewise already aiming for an earlier ban on use after 01.01.2003. It is obligated to present a directive on uniform implementation in the EU States as quickly as possible and announced this in July 2002[48]. This last is a prerequisite for an early implementation in German law in 2002.The dates fixed in the agreement begin with the ban as of 01.01.2003, which the industry should in any case observe. With Resolution 1 and a protocol declaration from the Executive Secretary[49], passed at the end of the Conference, the States and the industry are called upon to observe the directive after 01.01.2003 wherever possible, even if enforcement has not yet come into effect.It has been elucidated in the legally interesting protocol declaration that the date set for the ban as of 01.01.2003 is not legally binding, in case the Convention has not yet come into effect at that time (which is quite likely).The States are however free to hold to the date for the ban through their own legislation, at least for vessels under their own flags but the States cannot, as far as foreign vessels are concerned, enforce the terms of the agreement if it is not yet in force. There can also be no question of a retroactive enforcement of the dates.The new regulations are nevertheless beginning to take effect in practice. Leading representatives from the paint industry have announced they will discontinue the marketing of TBT based underwater paint as of the beginning of 2003. Official vessels, the German Navy[50] and several important shipping concerns, including cruise lines, have long since discontinued the use of such paint in any case.The agreement sets out in detail the following operational regulations:The directives of Article 3 apply to all vessels and platforms under the flag of a signatory State – or under a foreign flag but under the responsibility of a signatory State. Further, all other vessels entering a port, a dock or an offshore terminal of a signatory State are included. Under this regulation all foreign vessels entering the ports of a signatory State will be required to observe this agreement, even if their Flag State is not a signatory to the agreement, as these vessels may not under Article 3 (3) be given preferential treatment over the vessels of the signatory State.Article 4 prohibits the application, renewal, installation or use of the organotin based paint described in Appendix 1, while Article 5 calls for the environmentally friendly disposal of the residual substances in signatory States. New paints, i.e. other than organotin based toxic paints can under Article 6 also be prohibited in a special procedure. The content of the agreement is therefore also designed to include the further development of prohibited substances.Vessels over 400 GRT, to which the agreement applies[51], are according to Article 10 and Appendix 4 required to obtain a valid certificate for the approved ship paint and may be inspected in all signatory States by appointed inspectors. Under Article 11 these inspections are confined to the certificates, simple tests which do not harm the outer skin of the vessel may however also be made. Extended inspections are permissible if there are "clear grounds" to suspect a violation of the agreement. Violations can be sufficient grounds for warning the vessel, detention, expulsion or a long term refusal of admittance to ports if the ship does not meet the requirements. In addition, all violations have to be reported to the Flag State, which for its part is obliged under Article 12 to follow up and to punish violations by its ships. Unauthorised detention can lead to compensatory damage claims under Article 12.In four resolutions[52] of commendable nature the Conference of October 2001 mentions the steps towards implementation of the agreement. Resolution 1 calls for the States and the industry to hold to the dates, to expedite accession and to change out the paints. Resolution 2 is a reminder to formulate the guidelines for implementation. Resolution 3 calls for the States to arrange for permit conditions, a register and harmonised test methods. Resolution 4 calls for cooperation in the disposal of pollutants.This sums up what the EU, the signatory States and the industry have to do by way of practical and administrative preparation. It appears highly questionable whether the various guidelines can be completed and introduced by 01-01-2003. It is nevertheless important that inspectors are appointed and trained on schedule and based if possible at the existing port state control (not in additional institutions). Sanction regulations must also be introduced for violations (fines?) It is necessary for the EU to prepare a uniform and non-competitive neutral implementation for its member States. A market for new ship paint products and inspections for the correct paint will ultimately result.1.6. Ballast Water ManagementThe IMO Environmental Committee (MEPC) is working on a draft for ballast water management since IMO Resolution A.868 (20) introduced (non-binding) guidelines in 1997 for the control and management of ballast water. The problem with the ballast water is that ships travelling empty take on ballast water for stability and frequently pump it out before taking on cargos in other far off ports. In this way sea water is transported from continent to continent.Ecologically foreign organisms reach other sea areas by way of "bio-invasion"[53] and disturb the ecological balance there. Technical possibilities for countermeasures include biocidal paint coats on the insides of the tanks, chemical treatment (biocides) or flooding the tanks with nitrogen, all of which kills everything living[54] inside the tanks. Filters, irradiation and tank washing are also under discussion. The introduction of these or similar measures would mean structural changes and considerable investment for some 33,000 seagoing vessels in these categories. The method being practiced as an interim substitute measure, i.e. exchanging the ballast water in the middle of an ocean (so called mid-ocean exchange) is no solution to the problems and calls in any case for regulation.A diplomatic conference is projected for 2003 on the basis of a “Draft International Convention for the Control and Management of Ships' Ballast Water and Sediments” [55]. The actual draft convention prescribes waste disposal facilities in ports, ballast water management plans for every vessel, inspection and certification of all vessels over 400 GRT, inspections in foreign ports and ballast water treatment systems with 95-100% biocidal effect; as yet there is obviously no clear notion of the methods and effects. The exchange of ballast water at sea should continue to be permitted under certain conditions. Special standards are under discussion for particularly endangered sea areas but their legal consistency with international maritime law is doubtful.By way of preparation, an “International Ballast Water Treatment Workshop” [56]. was held in March 2001 and a workshop at the World Maritime University in Malmö was held inNovember 2001 in which six "pilot countries" presented their legal deliberations[57] on the regulation of this problem. Further, there is an IMO Correspondence Group which should setthe standards for ballast water treatment[58]. A “Baltic Regional Workshop on Ballast Water Treatment” for the Baltic Sea Region was held in Tallinn from 22 - 24.10.2001 to promote regional cooperation and awareness of the problem[59]. It concluded by passing a resolution that a regional concept is to be developed for the Baltic Sea States within the context of the HELCOM cooperation. The Nordic Ballast Water Summit from 26 - 29.01.2002 in Hövik, Norway[60] produced similar results.In should be said in advance of the projected Diplomatic Conference that there are considerable legal administrative problems which can be summed up as follows[61]:♦ various technical solutions and entirely new technologies may be expected in the future; it is therefore difficult to define concrete technical shipbuilding or operational conditions,♦ an additional and reporting and dialogue system between ship and port will be required,♦ extensive waste disposal plants and methods for the ultimate treatment of large quantities of water will have to be set up in the ports,♦ the responsibilities of the flag state and the port state need to be defined with regard to controls and deployment of personnel (port state control?),♦ States with a federal structure have more difficulties with administrative implementation than centralised States – e.g. a Federation/State problem in Germany,♦ privatised ports and oil terminals owned by private companies mean further administrative difficulties,♦ a uniform regional procedure is urgently required in regional seas such as the Baltic, both for ecological and commercial reasons.This is not expected to come into force in the very near future due to the many unresolved technical problems. The 48th. MEPC Sitting in October 2002 will deliberate further on the draft text. Special regional regulations for certain maritime areas are not advisable as shipping and port economies are dependent on global markets. In the same way as with the AFS Agreement above on harmful paints and AIS equipment, ballast water management can also be expected to generate a market for equipment and procedures on board ships and also for the technical inspections. The maritime industries in the North German States should be prepared for such an eventuality.1.7. Wreck Removal Convention (WRC)The long running discussion in the IMO Legal Committee over an international wreck removal agreement “Convention WRC” will foreseeably, and unhappily for HELCOM, after repeated meetings only be deliberated and possibly adopted in 2004/5[62] in a diplomatic conference.A “pedagogic” effect should also result from this future agreement, which should prevent the ship operator from relinquishing ownership and therefore the liability for vessels after an accident. There should at least be obligatory insurance to cover the cost of salvage and disposal of the wreck.1.8. PSSA GuidelineParticularly Sensitive Sea Area (PSSA) is a coastal maritime areas which need the special protection of the IMO navigation organisation[63] due to its ecological, economic, cultural or scientific importance and vulnerability to the harmful effects of shipping. It therefore represents not so much a form of nature conservation area as a maritime region which has to be protected from harm from shipping. There have been IMO guidelines since 1991[64] for the application and permission for PSSA areas; this facility has only been used twice[65].On the 29.11.2001, due to the increasing interest of the States in PSSA areas, the IMO Assembly adopted with Resolution A.927(22), after long deliberation, new “Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas” [66], which in December 2001 superseded the existing guidelines from1991. The MEPC pre-empted this new regulation in November 2001and had already adopted “in principle” a new PSSA area for the Florida Keys and Malpelo Island[67].The final confirmation of this was to be given in the 47th. MEPC Sitting in March 2002[68]. The new PSSA areas will be included in nautical charts under standard fixed symbols.Further PSSA areas have been recommended for the trilateral Wattenmeer of the North Sea and parts of the Baltic Sea and are currently being closely examined by the various responsible bodies with a view to tabling a motion in the IMO.1.8.1. PSSA WattenmeerThe 9th. Ministerial Conference (Environment Ministers) of the Trilateral Wattenmeer Conference resolved among other things under Nos. 65 and 66 on 31.10.2001 in Esbjerg:“To submit a trilateral application to the IMO for the designation of the Wadden Sea as a PSSA, as defined in the map in Appendix 4, exclusively on the basis of existing measures in the field of shipping safety, access to harbours and the protection of the marine environment.”As can be seen from the accompanying Chart 1 (see appendices), it relates to the already protected area of the Wattenmeer off the coast of the Netherlands, Germany and Denmark and also the current status of the nature reserves and national parks, which all lie inside the 12 sm. coastal waters limit. 60% of the area in the motion lies in German, 30% in Dutch and 10% in Danish sovereign waters. This Wattenmeer area measures some 9,500 km2. In Germany and Denmark the river mouths i.e. the approaches to the larger ports are exceptions and therefore not covered by the IMO motion.Notable in the Ministerial resolution is the statement that the future PSSA Wattenmeer needs no more new protective measures against harm from shipping as there are already sufficient protective measures in place. The transport ministers of the three States were prepared to reach political agreement only under this provision as they feared that restrictions would ariseotherwise in the seaward approaches to ports in the North Sea[69].A group of nautical and environmental experts from the three States concerned has been working on the preparation of a concrete PSSA motion for the Wattenmeer since January 2002. It is their task to formulate and give basis to the motion on the lines of the latest US motions and the new IMO guidelines and also the attendant administration guidelines[70]. The structure of the motion is as follows:summary of this proposal,description of the area (geographic, cartographic),significance of the area (ecological, socio-economic, scientific),vulnerability to damage by international shipping activities (analysis of the risks from shipping), routing, mandatory reporting, taking on pilots, venting ban,associated protective measures (measures existing and called for, e.g. operating restrictions, prohibited activities (insofar as these measures come under the responsibility of the IMO or are permitted under Article 211 (6) Law of the Sea Agreement),implementation (location published in charts, monitoring and enforcement).The final trilateral motion for the designation of the Wattenmeer as a PSSA, including a list of the measures already existing today and a chart, has been available since June 2002[71]. The Dutch Transport Ministry announced the motion in the 47th. MEPC Sitting of 04-08.03.2002 in London, as the Netherlands is at present chairing the Trilateral Wattenmeer Conference for three years. The motion is to be tabled in the 48th. Sitting in October 2002.1.8.2. PSSA areas in the Baltic SeaThe Special Conference of Transport Ministers for the Baltic Sea States decided on 10.09.2001 in Copenhagen to examine among other things the advantages and disadvantages of designating parts of the Baltic Sea as PSSA. This motion for examination is under Point VIII of the Copenhagen Declaration[72]. Work has already begun on a status report on the safety measures and reporting on eventual deficits. The specification of this work can be found in this report in sentence 3.1 “Results of the Special Conference of Transport Ministers for the Baltic Sea States from 10.09.2001 and their implementation”.1.9. Other IMO Initiatives1.9.1. Port Security und Anti-terrorism MeasuresAfter the events of 11th. September 2001 in New York and the beginning of an international campaign against terrorism shipping, like air travel, should be accorded better security[73]. Such considerations naturally apply to the ports because ships, passengers and cargos are exposed to the greatest danger there if one considers the dangers from piracy alone (already notorious in some maritime regions).Under the keywords port security, the IMO passed Resolution IMO A.924 (22) on 20.11.2001 for the Inspection of Measures for the Prevention of Terrorist Actions Against Ships, Crews and Passengers. The important key points are:1. early introduction of the AIS system, possibly also with long range AIS,2. ship security plans which should be made binding under SOLAS Chapter XI or the ISM Code,3. port security plans / port security management,4. security screening of seafarers,5. network of information and reporting systems,6. entry controls for people and goods,7. inspection of contents of containers and cargos,8. security zones in the water,9. use of satellites.The IMO intends to call an international diplomatic on conference maritime safety from 09-12.12.2002 with the aim of enlarging on the SOLAS Agreement through necessary mandatory regulations[74]. Efforts will also be made to enlarge on the SOLAS Agreement in Chapters V and XI and to pass a new code on port security, supplemented by “guidelines” in the form of recommendations. The new security system should be in force within 4 years at the latest (2006); at the same time an early enforcement by the end of 2004 is under discussion.The USA has triggered these deliberations; its legislative bodies and Coast Guard have formulated a comprehensive plan. The USA calls among other things for an early introduction of the AIS system, better monitoring of sea lanes, strictly prescribed security plans for ships and ports, deployment of security officers, security checks on seafarers, tighter controls on people at port entrances and risk analyses for all ports. The origin of containers and their cargo should in particular be made more easily recognisable (“operation safe commerce”). The USA intends to regulate the security considerations in its own land with the draft of a “Port and Maritime Security Act”. Furthermore, there is a plan in the USA to “blacklist” any foreign ports with unsatisfactory security and subject any ships sailing from these ports to USA to a special inspection, should inspection by US services in foreign ports be permitted[75]. The fundamental reasoning is that the terrorist threat and weapons of mass destruction shall not be “imported” by sea. The first agreement was recently concluded between the respective customs and excise services on the stationing of US Customs officers in Singapore, Canada, Russia, France (Le Havre), Belgium (Antwerp) and the Netherlands (Rotterdam)[76]. Agreements are being prepared for Hamburg and Bremerhaven. The duties of the US Customs officers are confined to consultation and exchange of information.The first measures are already in place in the USA, including a ban on filming and photography in ports, financial aid for ports (personnel cost), armed “sea marshals” on ships in particular danger, 96 hour mandatory reporting for vessels requesting entry and monitoring of cruise ships in the ports both at sea and shoresides.The recommendations of the USA, with the smack of a national go-it-alone mentality, caused disquiet at first: US rights of inspection over foreign ports (European ports) were demanded,especially in the press. In the meantime it has become clearer that the USA is aiming at three main points:introduction of national law into port security (and at the same time)an amicable solution within the IMOagreements with the most important container ports in the world.There is also no official intention, to date only ten European ports are listed as permissible ports of departure for cargos in the USA. International security criteria for high risk containers with a pre-screen procedure (i.e. no check on all containers) should be formulated instead [77]. Talks are also under way for a database between the port companies on security checks for containers.The IMO Intersessional Working Group for Maritime Safety[78] met from 11-15.02.2002 in London to discuss revision of the IMO regulations on maritime safety. The Working Group has made the first recommendations which were scheduled for further discussion in the 75th. MEPC Sitting in May 2002 and in December 2002 - after preparation by another Intersessional Working Group from 09-13.09.2002 – to be presented at the Diplomatic Conference for a decision. An extraordinary discussion incorporating all the international shipping and port organisations and many maritime nations was begun in April 2002 with the aim of formulatingthe new safety codes[79]. Efforts are being directed at firm decisions on the amendment of the SOLAS Agreement, in particular Chapters V and XI[80] and the conclusion of a new “International Ship and Port Facility Security Code” (ISPS Code) with a mandatory passage (A)[81] and a recommendations passage (B).The new regulations extend, as far as can be ascertained at present, to include the following:• AIS system. Improvements in the ship to shore interface by bringing forward mandatory installation of AIS transponders for vessels of up to 50,000 GRT to 01.07 or 31.12. 2004 and for smaller vessels to 01.07.2006. Mandatory installation has up to now been graded according to size class and extended to 01.07.2008. The range of AIS equipment should be extended and a ban on switching off should be included. Amendments to Chapter V of the SOLAS Agreement are necessary here.• Risk analyses - vulnerability assessment. Ships, mobile platforms and ports must make an analysis of weak points and risk (threat analysis) with safety plans. Special rules should be formulated for ferry and passenger terminals or for individual docks (facilities).• Security officers - Company Security Officers, Ship Security Officers, i.e. special safety representatives similar to the existing hazardous goods representatives should be deployed and trained with a concrete specification of tasks; other staff must also be trained for security tasks.• Ship security plans - Ships and mobile offshore drilling unit security is to be stipulated in the form of safety plans with protected areas, lighting, mandatory inspections, alarm systems and the necessary training for all ships and mobile offshore oil installations, including ongoing registration and approval by the responsible body.• Port safety plans. Port Facility Security stipulates safety plans for all ports which include protected areas, fences and boom barriers, checks on personnel, admission controls, ongoing registration and inspections and approval by the responsible body.• Admission control and identity papers for seafarers. Ships’ companies, visitors, passengers, suppliers, their belongings and vehicles are to be subjected to stricter inspections (within the context of the safety plans); seafarers are to be screened by special identity controls which the ILO should prepare.• Reporting /information exchange. Reports of Unlawful Acts. All irregularities must be reported and evaluated centrally.A security concept of this kind for ports (and vessels) calls for close, permanent cooperation between port authorities, all port users, coastguard, police, customs, immigration authorities, fire brigade, hospitals and environmental authorities in the form of a “port security committee” for every international port. The justifiable suggestion from the port facilities sector is to make the distinction between extensive port safety plans and plans for single terminals/facilities since the risk situations can be quite different and large port areas cannot be restricted. There are already safety precautions for sensitive areas in many ports which must also be optimised if necessary.The desired inspection of containers presents enormous practical problems. If one intended to inspect all containers, then the inspection would have to be made at the sender’s packing location, en route and in the port i.e. extend through the entire transport chain. The expenditure of labour and the attendant costs would severely disrupt the principle of free trade. Therefore, only specific container inspections and random sampling remain as possibilities, although the accompanying documents for containers, electronic seals on the containers and X Ray (radiography) equipment could offer interesting solutions to the problem.The German transport sector is now beginning to hold discussions[82] on the issue of “glass forwarders”Meanwhile the EU Commission has also become active in the issue of anti-terrorism measures in the shipping sector. It has announced its own forthcoming “message” for autumn 2002. The Spanish presidency, which chaired the EU Commission in the first half of 2002, has called for a campaign against terrorism and has defined salient points to be addressed by the Council “Traffic” Working Group[83]. The EU Commission is deliberating first together with the European Sea Port Organisation ESPO on which points must be addressed. There is a clear call to reject a unilateral EU initiative and to trust instead in international regulation through the IMO. The EU Commission feels nevertheless, with some justification, that its responsibility could be usurped because the IMO has no jurisdiction or responsibility in port or on land as it confines itself to the international shipping regulations which are only valid at sea[84]. In the Council of Transport Ministers of 19.06.2002 an appeal was raised for a show of solidarity for the IMO. At the same time contact between EU and US authorities is being intensified in order to arrive at an overall EU solution for container inspections in trade with the USA.In any case, the EU has made clear that port security in Europe should be taken seriously, that in addition to terrorism there are other risks such as illegal immigration and theft in the ports to combat and that all new measures must be commercially neutral for all EU ports. Nine maritime EU States have presented joint recommendations in the IMO which press for prompt, generally binding and practicable steps capable of implementation[85].It now remains to be seen which of the first recommended measures become concrete in the talks. The intensified individual security screening of all seafarers is legally unsound as it could lead to invasion of privacy and a breach of data protection. Sovereign inspections on foreign soil (US customs officers in EU ports) could, just as with inspections of ships on thehigh seas, be against international law. There should be no objections to the US officers taking an advisory role; this basically concerns an exchange of experts and data which is already normal practice between the States.A practical difficulty arises for the German ports as seamless restrictions and control of people in all quay areas (e.g. in the publicly accessible inner cities of our ports) would incur an inordinate outlay. There is the possibility here to restrict or control access to the ship (but not to the port). In any case there is an immediate need for discussion between the port authorities and the governments of the Federation and the coastal States. The solution to the port security problems can only lie in a realistic compromise between controls on the one hand and freedom of movement for persons and goods on the other. The establishment of a Federation - coastal States working group for the implementation of the new regulations is conceivable.Ports and shipping concerns would incur considerable labour, organisation and outlay. An additional need for expert personnel and their special initial and further training is also foreseeable. Added to that would be the investment needed for fencing, cameras and electronic equipment. There is a warning here of a multiplicity of panels and responsibilities. A practical, feasible solution must be found within the circles of the port authorities, the Ministries of the Interior (responsible for measures against danger), the port state control (Federation), the customs and excise (Federation), the coastguard organisation (Federation/States) and the port facilities sector.The tasks of the port security offer the Baltic Sea States an additional motive for closer cooperation between the port authorities and the security authorities. There is an objective connection in the idea of a Baltic Sea Coastguard[86] as all controls over shipping, such as a reporting system, maritime safety within the framework of the port state controls or combating criminality and terrorism, are integrated in the port and can be concentrated and enforced there (better than at sea).The scope and difficulty of the new tasks in port security and anti-terrorism measures are already presenting a renewed and urgent motive for the formation of a capable central coastguard in Germany[87].1.9.2. International Nautical LanguageFollowing a German initiative the IMO passed the so called Standard Marine Communications Phrases (SMCP) in December 2001. The formulation of standard phrases for navigation became necessary because the communication difficulties in multinational crews, not only among themselves but also in communication with other vessels and facilities on land such as traffic control centres and pilots, had become a threat to safety. Following the IMO Resolution of 1993, brought about by a German initiative, the German side took on the task of developing a working language based on English. The project was run under the expert guidance of Prof. Dr. Peter Trenkner of the Warnemünde Faculty of Navigation of Wismar University[88]. The standard phrases should now be integral to international agreements and adopted in nautical training. The « Babylonian babble » will nevertheless take a long time to overcome. Aviation is far ahead of navigation in this respect, while in Germany too the pilot service continues to use the German language.1.9.3. Tasks of the Flag StatesOne of the causes of many shipping accidents is the regrettable fact that many Flag States do not take the supervision of vessels under their flags seriously enough. For this reason transport ministers from 22 States, including Germany, proposed a joint programme at a Conference in Tokyo in January 2002. This should render the 160 IMO States, if they are Flag States, subject to an external assessment procedure similar to the audit procedure in air transport[89]. This procedure is designed to check that the States have fulfilled their obligations in the implementation and control of international safety standards. The IMO is therefore considering a Flag State assessment procedure, which may possibly be voluntary at first. Results are not yet available. The results from the port state controls have yielded impressive confirmation that many Flag States are not fulfilling their obligations. This also applies to the mandatory training certificates which should be held for all seafarers on board and have been part of port state controls since February 2002.[90] The Chairman of the Paris Memorandum of Understanding on Port State Control, which is valid in 19 European States and Canada, again reported in the annual results from 2001 that thousands of defects had been recorded, from faulty lifeboats to bulkheads corroded completely through. He reproached some Flag States who “are clearly more interested in revenues than in safety standards”[91].EU REGULATIONSSince the sinking of the “PALLAS” and the “ERIKA” the maritime safety policy has become a European priority issue. There was already a myriad of extended regulations, as mentioned in the main report[92]. The EU Commission, Council of Ministers (transport ministers) and European Parliament (EP) have reacted in a relatively short time since 2000, each with three recommendations for the so called ERIKA I and ERIKA II packages and expedited action on further guidelines and directives on maritime safety. The EU is becoming the potential “enforcer”[93] of the IMO.a ERIKA I-Packagei Guidelines on ship inspections and inspection organisations (Classification Association Guidelines)The “Classification Association Guideline” 2001/105 from 19.12.2001 [94] intends, with the amendment to the preceding guideline [95], to clamp down hard on the control over the national ship inspections and the inspection organisations (classification associations) responsible for the technical inspection of seagoing vessels in the EU member States, and to upgrade them to a uniform quality standard. These (comparable to TÜV) classification associations are located in the larger EU States i.e. Germany (Germanische Lloyd), France (Bureau Veritas), England (Lloyds) and Italy (RINA) and are of variable reliability. Some these organisations have become unpleasantly conspicuous due to an accumulation of accidents involving vessels under their supervision. Furthermore, an eye should be kept on a trend among ship operators to turn to “accommodating” inspection organisations[96]. It is clear that the EU is taking the “Control of port state controls” seriously when it intends to censure France and Ireland before the EU Court because these two States have not carried out the stipulated inspections on 25% of all ships entering their ports[97].The Guideline was established in the negotiation procedure at the end of 2001 and appeared in the official EU journal on 22.01.2002. Important new regulations are:the EU Commission is obliged to acknowledge new organisations (Article 4),the acknowledged organisations will be regularly supervised and entered in a register(Article 4),existing organisations are also subject to inspection by the Commission (Article 4),the organisations are liable for damages to persons and property within the framework of the highest figures, which in the event of death through negligence are limited to 4 mio. € and for damage to property through negligence to 2 mio. €. In cases of deliberate and gross negligence the organisation will be liable to a figure decided by a court of law i.e. unlimited (Article 6),organisations which do not meet the criteria laid down in writing will be struck off the register (Article 9),Port states identifying serious defects in vessels are to report them to the Commission and the Flag State concerned with details of the organisation responsible for issuing the ship’s certificate (Article 12),the transition of one inspection organisation into another must be reported to the SIRENAC information system[98] and may only be effected if the closing organisation surrenders all documentation (e.g. on due inspections) (Article 15).The Guideline was adopted on 06./07.12.2001 in the Council of Transport Ministers and was thereafter adopted in the EP. It came into force on 22.01.2002 with its publication in the official EU journal. The States have exactly 18 months grace until 22.07.2003 to complete the national implementation of the legal and administrative regulations. The Federal Government still intends to implement this Guideline with the 4th. Maritime Safety Adapted Regulation in 2002.ii Guideline on port state controlsGuideline 2001/106 on port state controls from 19.12.2001[99] is intended, with amendments to the existing Guideline 95/21 EG [100], to tighten and standardise the implementation of the port state controls in the ports of EU States. The international basis for port state controls is the Paris Memorandum of Understanding of 1982[101], under which 19 European States are committed to technical inspections of foreign flagged vessels entering their ports. The inspection of vessels under their own flag is already generally accepted as stipulated under Flag State principle and the classification associations in any case[102]. It is clear that the EU is taking the controls on port states seriously when it intends to censure France and Ireland before the European Court because these two States have not yet carried out the stipulated inspections on 25% of all ships entering their ports[103].The new Guideline appeared in the official EU journal in January 2002. Important new regulations are:♦ the member states must have the required number of inspectors by 1-1-2003. (Article 4 and 7 Rotterdam has been granted 6 extra months,♦ the inspection of 25% of the ships entering ports is to be structured on priority factors for risky ships and regular extended examinations e.g. for older ships. (Articles 5 and 7) so that the EU authorities can proceed with uniform strictness,♦ particularly conspicuous vessels travelling under the flag of a state which appears on the "black list" or which have been detained twice in 24 months can be refused entry to a port (Art. 7 b)grounds for detaining a vessel include failure to install a voyage data recorder (VDR or "black box") in vessels of over 3.000 GRT insofar as its use has been stipulated under of the Guideline. The schedule for the phasing in of mandatory installation of voyage data recorders in all ships from 01.07.2002 to 01.01.2008 has been adopted in Appendix XII (Art. 9),comprehensive reporting, information and registration of all procedures in the SIRENAC and EQUASIS databanks are mandatory (Art. 15.),♦ the States are finally obliged to stipulate sanctions for violations in their domestic implementation of the Guideline.The Guideline was adopted on 06./07.12.2001 in the Council of Transport Ministers and was thereafter adopted in the EP. It came into force on 22.01.2002 with its publication in the official bulletin. As in all these cases, there is 18 months grace for the domestic implementation by the Federal Government (and the States) i.e. until 22.07.2003. The Federal Government still intends to implement this Guideline with the 4th. Maritime Safety Adapted Regulation this year. The commission will examine the implementation up to 22. 07. 2006, during which the number of inspectors and inspections in particular will be examined.2.1.3. Earlier introduction of double hulled tankersStatutory Instrument (EC) No. 417/2002 18. 02. 2002 for the earlier introduction of double hulls or equivalent construction standards for single hulled oil tanker vessels and for the abolition of the Instrument (EC) No. 2978/94 of the Council was published in the official bulletin[104] in March 2002. It is valid under Article 13 as of 01.09.2002.Double hulled tankers considerably reduce the risk of pollutant spills but do not offer absolute protection. As a part of the ERIKA I package the EU had pressed successfully since the end of 2000 for a much shorter periods of remaining service for the (old) single hulled tankers[105], which were allowed under the old legal requirements to operate until not later than 2026. The IMO reacted very quickly and changed the regulations of MARPOL Document I in the 46th Meeting of the MEPC in April 2001, where in Rule 13G the lifespan of the single hulled tankers was so foreshortened that they had to be phased out in stages from 2003 to 2015 depending on their year of construction. Closer inspections under the so called “Condition Assessment Scheme” (CAS) should control the state of maintenance of the remaining single hulled tankers more strictly than before. According to a special clause the States can in exceptional cases opt for allowing the tankers which are still not 25 years old to operate until 2017. These amendments to the MARPOL Agreement become effective worldwide according to plan as of 01. 0 9. 2002, i.e. at the same time as the EU Instrument.The stricter CAS inspection system will be obligatory worldwide as of September 2002. In addition the IMO is establishing an electronic database and preparing for the administrative supervision of this regulation[106].The EU has now implemented with this instrument in 13 articles the IMO measures for its own area of responsibility and defined the graduated phase-out dates for three categories of tankers in Articles 4 to 6. It has made use of the option in Article 7 and declared that after 2015 those tankers which as exceptions may be further operated until 2017 may no longer enter EU ports except in cases of a port of refuge or for repairs (Article 8). There is a simplified amendment procedure for possible later amendments to the instrument under Article 11. The earlier Instrument No. 2978/94 which introduced differential charges in favour of separate ballast tanks will be scrapped under Article 12 of the new Instrument on 31. 12. 2007 as the deadline for such ships is the end of 2007.Since this regulation is an instrument (not a guideline) this instrument is immediately valid in every member country as of 01.09.2002. Further formal implementation measures at national level are not required (decree if necessary?)The EU also wishes to keep a list of "black sheep" among the notorious tankers and other vessels independent of the announcement of the guidelines and publish this in the Official Bulletin from the beginning of 2002. Tankers regarded as potentially unsafe will be subjected to a strict annual inspection. While at present 10,000 to 12,000 vessels are routinely inspected every year in the EU, 700 of them intensively, 4,000 should in the future be intensively inspected. The Commission expects that 15 EU States will begin implementation immediately and recruit tanker inspectors.The environmental organisation GREENPEACE keeps its own “blacklist” of some 700 to 800old vessels yearly which must be taken out of service worldwide[107]. GREENPEACE has in its own words not discounted direct action against these vessels[108].2.2. ERIKA II Package2.2.1. Vessel Monitoring GuidelineThe first suggestion from the so called " ERIKA II Package" is the guideline of the European Parliament and the Council on the establishment of a common monitoring and information system for navigation and to the abrogation of Guideline 93/75 EEC of the Council[109]. This vessel monitoring guideline is intended, as represented in the main[110] and supplementary reports[111], to extend the existing obligations to include registration, to improve data exchange, to force the pace of AIS and VDR equipment installation, to introduce regulations for an embargo in extremely bad weather, to stipulate a maritime accident inspection under the terms of the IMO Code and the preparation of ports of refuge for all EU States. The corresponding IMO regulations were quickly and forcefully made obligatory for the EU states. The Council of Environmental Secretaries finally passed this Guideline on 25. 06. 2002. The announcement in the Official Bulletin will follow shortly.Under Article 29 of the Guideline the States must implement the domestic administration regulations, which could in this case become quite extensive and complicated, within 18 months.Most of the regulations in the Guideline have met with wide approval. This applies to:□ the strictly obligatory observation (Articles 4-8) by all vessels of the reporting procedure, routing and traffic direction, the automatic identification system (AIS and VDR)□ the strict enforcement of accident and hazardous goods reporting (Article 12 ff),□ the obligation of the member States to set up suitable land stations and make personnel available (Article 9) for the operation of on board AIS and VDR equipment (Article 10) and to carry out accident investigations under IMO Code (Art. 11),□ the (very sensible) obligation of vessels to have the AIS System running continuously (Article 6 § 2),□ the obligation for EU States to establish ports of refuge on the coasts where the permission of the responsible authority is to be observed in the event of genuine emergency at sea. (Article 20).The differences of opinion centred on several questions of maritime law. A contentious issue concerned the traffic routing, the so called VTS (Vessel Traffic management system). The ships whose port of destination is in the EU are obliged in Article 8 not only to observe the traffic routing within the coastal sea but also outside i.e. in the EEZ. The Law of the Sea Agreement of the United Nations only allows traffic regulation measures within the coastal seas of the States; freedom of navigation[112] applies outside. Insofar as Article 8 of the Guideline intends to commit vessels under the flag of an EU State to observe the traffic routing outside the 12 sm. of limit of the coastal sea, this is only possible with the consent of the States in question. However, such a regulation can never be more than partly valid. The clause in Article 8b is therefore extremely dubious in international law insofar as it applies to ships under the flag of a third party state. It is however permissible if in Article 8c ships under third country flags which do not intend calling at any EU port, i.e. are in transit, should observe traffic routing outside the coastal sea "as far as is possible".The embargo in extremely bad weather also presents legal problems because the freedom of decision of the captain is prejudiced. The new regulation in Article 18 pursues a two-stage implementation. In the case of "considerable danger ... to human life ... or risk of pollution" appropriate measures can be taken to impose an embargo. In the event of other (normal) dangers it should remain merely as a recommendation. The package of measures is again relativised in Article 18, § 2, because “however, neither the embargo nor the recommendation prejudice the decision the captain takes using his technical judgement according to the measures in the SOLAS Agreement".In the final analysis it remains unclear how this Article should be used and enforced, particularly since the guideline does not mention any legal basis for an embargo. The EU would be well advised to refrain from such easily misunderstood regulations.Another important aspect which touches on the acceptance and practicability of the guideline remains unexplained. It poses the question of how these many new obligations to register are coordinated with the existing (old) obligations to register without overtaxing the command of the vessel and the facilities on land. As is well known there is, besides the regulations for putting into port based on EU Guideline 93/75[113], a new EU Guideline 2002/6[114] with uniform formal requirements. Additional obligations to register will arise from the ships’ waste disposal guideline[115] according to which ships must report their waste disposal requirement before putting into port. The national German implementation definitions need particularly careful consultation in the Federation/State relationship so that practicability and legitimacy are taken into account.2.2.2. Establishment of an additional compensation fundThe suggestion of the Commission for the establishment of an additional European compensation fund for damage from oil spills (COPE fund) led to controversial discussion. At present the suggestion is not being followed up further as a new worldwide regulation in the context of the IMO oil liability system appears to be forthcoming[116]. The subsidisation examination has revealed that a regional EU regulation would only come under consideration if the increase in the liability sums in the international liability system supported by all the EU states in IMO should fail. The general meetings of the IMO and the international Oil Liability Fund in November 2001 and April 2002 agreed on a diplomatic meeting for May 2003 in which a (voluntary) third party liability step would be decided.2.2.3. European Maritime Safety Agency EMSAThe text of the Regulation for the European Maritime Safety Agency with a 55-80 strong staff and an annual budget of 7.6 mio. € was passed in the Council of Environmental Secretaries on 25.06.2002, in which the choice of location of the new organisation however remained open. The aim of the Regulation is the establishment of an agency for the safety of navigation, which should provide the member States and the Commission with the necessary expert knowledge and technical – scientific support regarding an orderly application of the Community regulations concerning safe navigation. This should lead to a uniform high standard of maritime traffic safety and prevention of pollution in the Community (Article 1). Control assignments in the member States (Article 3) are feasible. The Agency has legal credibility, will be headed by an independent executive director (Article 15) and can set up regional centres (Article 5). It is run by an administrative board with 2/3 majority decisions which appoints the executive director and passes labour programmes and budgets (Article 10-14). The Agency starts work within 12 months after the Regulation comes into force of (Article 23).The EP agreed in its meeting of 11-14.6.2001 to the draft with a number of changes which the Council by and large adopted. Changes include the introduction of environmental protection under the aims of the EMSA, the reinforcement of the rights of the States in inspections and the introduction of unannounced inspection visits.The tasks of the agency seem relatively weak: Article 2 mentions "supporting tasks" for the Commission, "cooperation" with the member states training and searches into technical solutions and "simplified cooperation" in data exchange. Executive assignments are lacking.There remains instead the impression of a “think tank” farmed out by the Commission.There is no decision as yet on the location of the EMSA. Portugal (Lisbon), Greece (Piraeus), Italy (Genoa), France (Nantes) and Spain have all made bids for the location. The political decision devolves on the EU summits. The EU summit under Belgian chairmanship in Laeken on 14.12.2001 could not come to any agreement on about ten different new EU agencies to be established, among them also a food agency laid claim to by Italy with headquarters located in Parma. This was the subject of particularly intensive argument, which prevented agreements on the other agency offices being reached. The next summit will take place in Denmark towards the end of 2002, so the decision on the location will possibly be made at a sitting in the conference in this Baltic Sea State.The Federal Government is very interested in providing the location for the new European agency for air safety, the EASA, in Cologne[117] and has therefore not actively pursued the location of the EMSA, although Lübeck, Emden and other locations had expressed some interest. The EASA, with a budget (2004) of 29 mio. € and 200 employees is of great practical importance for the aerospace industry and the air traffic market. It will fix general rules for the certification and maintenance of aviation products and supervise their application. This authority will be responsible for the licensing of aircraft. In addition, it should harmonise the technical regulations and be responsible for environmental protection. The EASA - unlike the EMSA - will therefore have an executive facility with wide ranging authority. The Ministers of Transport decided on the establishment of the EASA in principle on 19.06.2002. The ultimate decision on the location rests with the EU Government and State heads[118].The wish for a German location for the EMSA should not be too quickly given up. The location of one of the "regional centres" possible under Article 5 could also be interesting for German locations e.g. in the Baltic Sea and for the Baltic Sea region. The Federal Government answer to a minor interpellation from FDP included the words: "Provided thereis a realistic chance during the deliberations of attracting the location of EMSA to Germanythe Federal Government will ensure that the German sites being offered ...will beconsidered.”[119] and further: “As soon as it is known if (regional) centres have been planned and what tasks and requirements are to be met for such installations, this information will be passed to the respective cities and Federal States which have offered locations”.It still appears to be unclear of late which tasks the EMSA should take on, as the aspects of port security[120] and preventing terrorism have now come to the fore and an administrative structure for these is lacking as yet[121].2.3. Other EU Regulations2.3.1. Ships’ waste disposal in the portsAccording to estimates, approximately 70,000 cubic meters of garbage and considerable amounts of oil and mixtures containing oil, originating from normal ship operation and therefore not from any accident[122], are introduced every year by ships into the North Sea alone. This burden on the seas is added to by waste water from ships’ engine rooms, sewage from galleys and living quarters. The North Sea and Baltic Sea may well be designated as a "Special Area" in the context of MARPOL Agreement, in which oil and ships’ garbage may not be dumped but many ships ignore these rules or dispose of their waste illegally .Guideline 2000/59 on port waste disposal plants and residual cargos[123] becomes effective at the end of 2002.The EU States must then implement mandatory connection and use for all ships, the necessary structure of charges and the port waste management plans in national law. This istaking place in Germany through Federal regulations[124] and through regulations or acts of the coastal States[125]. Since the operation of the ports is a State responsibility, the main burden of implementation and the future waste disposal facility lies on the port operator and the State. The tasks of the Federation are confined to international registration and controls.The new system for ships’ waste disposal will considerably reduce the level of oil presently being illegally introduced into the Baltic Sea and North Sea since in principle every vessel must in future dispose of its waste before leaving an EU port (excepting ferries and liners which must show proof of proper disposal in one of their ports of call). Administrative outlay and costs for the shipping sector [126] will inevitably be incurred from this at the same time.2.3.2. Guideline on the safe loading and unloading of bulk cargo vesselsGuideline 2001/96 of 4.12.2001, “Specifications for the Harmonised Regulations and Procedural Rules for the Safe Loading and Unloading of Bulk Cargo Vessels”[127], is intended to improve the safety of the bulk cargo vessels which call at cargo handling facilities to load or unload. This should obviate the risk of excessive mechanical stresses and damage through improper lading; bulk cargo vessels have broken up and sunk[128] in the past due to incorrect lading. The IMO BLU Code (Bulk and Unloading Code[129]) and SOLAS Rule VI/7 in the 1996 amended version will be introduced with the Guideline into Community Law. The guideline applies to all bulk cargo vessels regardless of which flag they carry and for all cargo handling facilities on the sovereign territory of the member States equipped for the loading and unloading of bulk cargo vessels. The Guideline contains the following essential components:requirement for the operator of the cargo handling facilities to name the representatives responsible for the cargo handling procedure and their responsibilities to the captain,listing of suitability requirements for the vessels and the handling facilities,introduction of harmonised procedures in interaction between vessels and handling facilities, including the exchange of information and a loading and unloading plan,operators of the facilities must employ a certified quality management system to ISO 9001-2000 standards,the right of the authorities to halt loading and unloading in case of danger,mandatory reporting of outstanding repairs,report from the member States on implementation.The Guideline improves safety in bulk cargo vessels which is fundamentally dependent on correct lading and weight distribution in the vessel. This is also important in the Baltic Sea with its high volume of bulk cargo traffic (e.g. coal, building materials). The Guideline was published in the official EU bulletin of 16.01.2002[130]. The States must implement the Guideline in national law by 05.08.2003. The Federal Government already intends to implement the Guideline this year with the 4th Maritime Safety Adjustment Regulation. The States too will incur new tasks arising from this.The cargo handling facilities and their operators e.g. Wismar and Rostock will have to cope with an increased personnel requirement and the responsible authorities too can reckon on a heavier workload. The Federation and the States for instance will have to assign tasks to responsible authorities and supervise their work through regulations. It could be a good idea here to concentrate all such tasks at the port state control point.2.3.3. Guideline on reporting formalitiesThe EU Guideline of 18.02.2002 on “Reporting formalities for ships entering and/or leaving ports of member States of the Community” is directed at the uniform and obligatoryintroduction of the standard forms[131] recommended by the IMO according to the Convention on Facilitation of International Maritime Traffic (IMO FAL Agreement of 09. 04. 1965) for registering or deregistering in EU ports and dispensing with the various different national forms. The Guideline, which should also make coastal navigation the EU more attractive, found wide support in the Council of EU Transport Ministers on 06./07.12.2001 and in the EP and was published in the official EU bulletin of 09.03.2002[132]. It became effective on the day of the announcement. The member States however have under Article 7 until 09.09.2003 to implement the legal and administrative regulations.The Guideline requires domestic implementation by the Federal Government which will amend the appendix to the maritime safety law. As soon as the new system gains acceptance in all EU ports, and where possible in some of the applicant States too, it will make for a certain simplification for captains and services on land as the reporting procedure is standardised in five sections:♦ general IMO declaration on the vessel♦ IMO declaration on ship rations♦ IMO declaration on the personal belongings of the crew♦ IMO crew list♦ IMO passenger list.With regard to border guard control requirements, the German interests will be observed through a protocol declaration of the member States account, after which the passenger list will be further filled out in the IMO with details of the type and number of the identity papers.Estonia and Lithuania, the only two States still missing from the IMO signatory States in the Baltic Sea, are called upon to sign the FAL Agreement in order for the new reporting system to become valid in the entire Baltic Sea. Like Estonia in 1992, Latvia and Lithuania became members of the IMO in 1993 and 1995 respectively. It is only logical for these two States to also become signatories to the FAL Agreement, which Latvia concluded in 1998. The same result would however also be achieved as soon as these States adopt this Guideline in the process of accession to the EU, as the reporting forms to be used are stipulated in the Appendix to the EU Guideline. The Federal Government will implement this Guideline with the 4th Maritime Safety Adjustment Regulation and extension of the regulations for laying to [133].2.3.4. Regulation on the Committee on Safety at SeaThe regulation recommendation[134] for the “ Committee on Safety at Sea and Prevention of Environmental Pollution...”, the so called COSS - Committee, aims to combine the committees projected in various older guidelines[135] in a Committee on Safety at Sea, pool the knowhow and thus simplify the further actualisation of regulations and guidelines so that the adoption of new international regulations can be made faster and simpler. The Council of Transport Ministers of 25./26.03.2002 is also seeking agreement on the same general view.The new Committee on Safety at Sea under Article 3 of the Regulation, consisting of representatives from the member States, could lend a great deal of importance to the further development and ongoing actualisation of the EU maritime safety law. If the measure is to have any meaning, then the new regulations and guidelines of the ERIKA I and ERIKA II Packages must be placed under the responsibility of the Committee on Safety at Sea.The North German coastal States should with the permission of the Federal Government lay claim to at least one seat in Committee on Safety at Sea.2.3.5. Safety in Ro-Ro and Passenger ShipsThe Commission presented a communication on 25.03.2002 for the improvement of safety in passenger vessels in the Community containing a “guideline suggestion on special stabilitystandards in Ro-Ro passenger ships” and a “recommendation for amendment of Guideline 98/18 from 17.03.1998 on safety regulations and standards for passenger vessels” [136]. These recommendations have already been unofficially christened the "ERIKA III Package".The Guideline contravenes existing international law in the actual version of Article 3, which the German negotiation delegation has always pointed out[137]. Article 3 expressly orders Ro-Ro passenger ships under the flags of states outside the EU to observe the increased stability requirements. This contradicts the UN Law of the Sea Agreement[138] and the SOLAS Agreement[139]. This point of law has not yet been resolved. Implementation of this regulation in national law should be expressly avoided. It could well lead to the first serious case of a deviation of the EU from the principle of contractual fidelity to higher ranking international law in the maritime legislation. It hinges on the principle of whether further obligatory standards by the United Nations and the IMO are to be agreed with effect for and against all flags or whether regional standards should prevail.The first mentioned recommendation for stability requirements for the eight North Sea and Baltic Sea States (Denmark, Germany, Finland, Ireland, Netherlands, Norway, Sweden and England)of the current Stockholm Agreement[140] with its stipulations for the protection of the lower decks against incoming water[141] should be extended to include the entire EU. All new vessels must after 01.10.2004 consequently meet the higher stability requirements for measures against water coming into the cargo decks. Older vessels are granted a period of grace until October 2010 or must be taken out of service by 2015.The Guideline contravenes existing international law in the actual version of Article 3, which the German negotiation delegation has always pointed out [142]. Article 3 expressly orders Ro-Ro passenger ships under the flags of states outside the EU to observe the increased stability requirements. This contradicts the UN Law of the Sea Agreement[143] and the SOLAS Agreement[144]. This point of law has not yet been resolved. Implementation of this regulation in national law should be expressly avoided. It could well lead to the first serious case of a deviation of the EU from the principle of contractual fidelity to higher ranking international law in the maritime legislation. It hinges on the principle of whether further obligatory standards by the United Nations and the IMO are to be agreed with effect for and against all flags or whether regional standards should prevail.The second recommendation is directed at increased protection for handicapped passengers, the incorporation of inland passenger traffic and structural improvements through amendment to the existing Guideline 98/18 on safety regulations and standards for passenger ships. In addition, the Commission introduces its requirements for the reform of liability for personal injury (Athens Agreement[145]). The Commission recommends higher liability limits, obligatory insurance and direct claim of the victim against the insurance. It anticipates this amendment from the current re-enactment of the Athens Agreement in the IMO and is seeking to stipulate a prompt and unanimous implementation in the EU.Further deliberation on this recommendation package is pending. Suggestions which target primarily the frequent and especially risky passenger traffic in the Mediterranean also lead to improvements for the Baltic Sea as all Ro-Ro ferries, high speed craft and cruise ships entering EU ports are included. The advantages for handicapped passengers and the uniform liability should be welcomed in any case, even if they incur extra costs. Here it is again clear that not all Baltic Sea residents are reacting in concert to these recommendations. The Stockholm Agreement on the safety of ferry ships applies to eight West European maritime States but not to Russia, Estonia, Latvia, Lithuania or Poland.The Council of Ministers of Transport came to a "general orientation" on these two suggestions on 19.06.2002. The next step will be the EP statement.2.4. The role of the EU in the maritime safety conceptThe previous explanations clarify the high degree of legalisation of maritime safety in the EU. International ship safety standards can nevertheless only be effective if they are subject to a uniform implementation in line with reference effectiveness. The nature of the IMO Code as a soft law and the disparity of maritime administration and infrastructures together with a lack of cooperation lead to heterogeneous and incomplete application of international law. The EU therefore has to contribute substantially to the implementation of an international set of rules. This contribution corresponds as a rule to international norms suited to implementation, such as the SOLAS Regulation II 1/12 (5) for the double bottom in passenger ships. The responsible body can under this regulation allow double bottoms to be omitted "if [it is] satisfied that the fitting of a double bottom [...] would not be compatible with the design and proper working of the ship". Here the implementing body can make use of a far-reaching rule of thumb. Given such room for movement, it is little wonder that the degree of implementation in the IMO member States varies so widely. The EU is seeking to remedy these deficits by making mandatory and Community wide more uniform implementation of the international set of rules,e.g. with the guideline on safety regulations and norms for passenger ships[146]. Furthermore, the implementation of international standards is being pushed by the EU, within the framework of the port state control, to include third State vessels as well as vessels in passage off the coasts of the EU. The representative intensification of port state control is therefore exemplary under the first Erika Package and the establishment of a Community monitoring, inspection and information system for maritime traffic in the course of the second Erika Package. This promotes at the same time the establishment of the maritime infrastructure through traffic control, reporting and management systems.A further, not insignificant role falls to the EU in the IMO in the context of the coordination of the member State procedures. The weight which the EU member States can bring to bear on unanimity was clear in the 46th Sitting of the Marine Environment Protection Committee of the IMO when enforcing the simplified MARPOL Amendment Procedure for the introduction of double hulled tankers. The increase by 50% in the compensation to be paid under the Oil Liability Agreement and the IOPC Fund decided on in October 2000 would also have been hardly possible without the coordination in the EC Council. The EU is ultimately seeking an institutional anchorage for its activities. With the establishment of the European Maritime Safety Agency (EMSA) and the availability of the EQUASIS database the EU has become more important in matters of maritime safety in European waters.At the same time the advantages of its supranationality have brought benefits to the EU. With Article 211 EGV, in the form of the Commission, it has at its disposal the central supervision body for member State implementation, maintenance and application of the European maritime safety standards and therefore an instrument to control the observance of regulations[147]. The EU can even extend this to third party states by means of the port state control. Brussels can also help in this function. This then extends to the Flag State too and could close a loophole in the port state control. This latter is nevertheless not far-reaching enough to effectively combat flagging out under so called "flags of convenience". Within the Community the EU helps in the execution with support with the application of Community regulations.Thee EU Agency EMSA could fill a welcome role as a regional arm to the global Flag State Committee IMO.The potential of the EU to promote self regulatory codices through tax incentives, differential port charges[148] and improved information exchange underlines its role in the maritime safety concept. If private regulation does not suffice, the EU can help in a sovereign capacity. To be struck off the register would mean more or less the end for a classification association. An interesting scientific/regulatory mixture of sovereign behaviour control and entrepreneurial self responsibility - keyword: safety partnership between State/shipping concern/ship – the incorporation of the ISM code in the reporting guideline.Nevertheless, it should be taken into account that the jurisdiction of the EU in the maritime safety network is restricted. The EU alone cannot regulate port state authorities or their responsibilities and procedures. There are different administrative traditions and procedures[149], especially in maritime traffic safety. Some States have civil administrations, others military, and Federal States with federal structures and communal self administration present additional problems.Contradictory to the firm position taken by the EU in the enforcement of international safety standards is the fact that no formalised procedure exists in the Council for harmonised action within the framework of the IMO. Furthermore, the allocation of jurisdiction between the EC and the member States in the conclusion and implementation of international agreements on maritime safety is unclear; in the context of mixed agreements it has not yet been established internally who is responsible for the implementation. Internal friction could render the EU externally less effective.The European legislation has nevertheless since the announcement of a "joint policy in matters of maritime traffic safety" been focussed on the enforcement and uniform application of IMO standards. The EU very seldom steers a collision course with the IMO.The EU generally stresses the primacy of the IMO. That some activities of the European Union have met with scepticism in the member States lies less in the worries over a guarantee of free global navigation (although politicisation and regionalisation could pose a threat to the IMO) and more in the fear of having to surrender their jurisdiction. The potential gain in general safety through communal observation of a Europe-wide jurisdiction could well outweigh the “ loss of jurisdiction” to Brussels.One thing is certain: the setting of new standards will remain a task for the IMO, the enforcement of these will be a key task for the European Union, especially in view of the impending accession of Poland and the three Baltic States to the EU.Baltic Sea Regulations (HELCOM)a The Special Conference of Transport Ministers of the Baltic Sea States, 10.09.2001. The results and their implementationThe HELCOM Special Conference of Transport Ministers of the Baltic Sea States in Copenhagen 10.09.2001 concluded with a package of measures for improvements in maritime safety and accident management in the Baltic Sea. The text of the “HELCOM Copenhagen Declaration”[150] – supplemented by an explanatory background paper[151] - is indexed in 15 individual measures (under Roman numerals). These will be subsequently referred to and expounded on under the Roman numerals, followed by the description of the respective initial steps in implementation coordinated by the incumbent HELCOM SEA-Based Pollution Group[152]. The measures were at the same time part of the 5th. HELCOM SEA meeting from 13 - 17.05.2002 where the initial steps in implementation were decided[153]. In Germany the implementation of the initial measures will follow through the “1st. Baltic Sea Protection Amendment Directive”[154].I. Routing measuresJoint initiatives were proposed by the Baltic Sea States in the IMO for improvements in the existing routing by extension of the deep water passage(DW 17) by 5sm. into the Kadet fairway – a measure which has since been carried out[155]. Other demands were for the establishment of a new deep water route in the eastern part of the Gulf of Finland as a route to Primorsk, where tankers of up to 150,000 tdw. began to take on cargos of oil in November 2001, new routing for deep draught vessels (up to 15m.) round Gotland and a new traffic separation zone between Bornholm and Sweden.These routing measures have been partly carried out and partly scheduled for action. Extension of the deep water passage 5sm into the Kadet fairway has been de facto in effect since 07.01.2002 (Chart 2) and has been included and published in an IMO Circular as well as in German and Danish nautical charts[156]. All HELCOM States have been informed. This change was later approved at the 75th. meeting of the IMO MSC in May 2002. The new regulations on routing in the Gulf of Finland proposed by Russia in the IMO are supported by all the Baltic Sea States. The new deep water passage for tankers south of Gotland was proposed by Sweden in the 48th. MEPC Sitting at the IMO in July 2002. A joint recommendation has been made for the new traffic separation zone between Bornholm and the Swedish coast[157].II. Mandatory pilotageIn the issue of mandatory pilotage for certain hazardous goods carriers in Route T and the Sound the Paper requires new national legislation subjecting home based vessels to mandatory pilotage while foreign flagged vessels should be subject to mandatory pilotage after consultation and agreement with the shipping agent and the recipients of the cargos[158]. In addition, Denmark was requested to table a joint IMO motion as a supplement to IMO Res. A.620(15), to extend the (existing) recommendation for taking on pilots for the Baltic Sea routes to include vessels with 11-13.m draught for the (entire) Route T. This should further promote the voluntary taking on of pilots. The conference however failed in its original desired aim to introduce mandatory pilotage through the IMO. Denmark mentioned as support for its recommendation that the existing IMO recommendation for taking on pilots A.620 (15), which strongly recommends a pilot for vessels of more than 13m. draught, is apparently alreadyfollowed by 96% of vessels[159].Several Baltic Sea States declared against mandatory pilotage at that time.Denmark is preparing the amended agreement for IMO Res. A.620 (15) for the projected 48th. Sitting of the IMO sub-committee “Safety of Navigation (NAV)”[160], scheduled for July 2002. As an additional measure within the framework of HELCOM, Denmark has presented the draft of a HELCOM recommendation[161] with the suggestion that vessels sailing from Baltic Sea ports be reminded of the strong recommendation of the IMO to take on a pilot. The Baltic Sea States should ensure that vessels leaving port, i.e. loaded tankers, are also targeted with information to remind them to follow the recommendation for taking on pilots for the Baltic Sea routes. At the same time, vessels leaving port should report their position and destination to the control in Denmark (in the sense of an Early Warning System). This system should come into effect not later than 01.01.2003 in the Baltic Sea States[162]. Vessels entering the Baltic Sea from outside however will not be included in this “reminder procedure”. It remains to be seen whether this ambitious plan is viableIII. Electronic Nautical Charts (Electronic Chart Display and Information Systems ECDIS)Also called for is the early introduction of regularly updated coverage of the most important sea lanes with electronic nautical charts and their obligatory use from the end of 2004[163]. Further, a safety inspection of the more important sea lanes and ports should be carried out by 2003.Denmark, Germany, Sweden, Finland, Poland, Estonia and Latvia have declared themselves ready to carry out a safety inspection of their sea lanes as of 2002. These same States have, or will soon have, their maritime regions covered by electronic navigational charts (ENC) which will be regularly updated. Russia and Sweden have given similar assurances. From 01.07.2002, if the new SOLAS Chapter V comes into force,electronic nautical charts (ECDIS) will be recognised as equivalent to paper charts and the States will promote the introduction of the new systems in shipping concerns. Only Estonia and Lithuania have yet to join these initiatives. Many Baltic Sea States will need more time. The updating of the hydrographical data and its international exchange will call for a new data processing service.Denmark and Germany have at the 35th. Sitting of the Paris Memorandum of Understanding in May 2002 in Halifax successfully submitted the recommendation to introduce a firmer control over nautical charts as part of port state controls. This will ensure that the port state controls also require up to date nautical charts in the Baltic Sea States; non-existent or out of date nautical charts are known to have contributed to several incidents in the Kadet fairway.IV. Introduction of the AIS systemThe introduction of the AIS (automatic identification system) with national land stations in the Baltic Sea States is planned for 01.07.2005 with a network covering the entire Baltic Sea and uniform monitoring[164]. The AIS equipment will enable monitoring of shipping extending to the Fehmarn Sound and Kadet fairway region, especially since Denmark has agreed to joint monitoring through the Warnemünde traffic centre.Apart from Latvia which still anticipates financial problems, all the Baltic Sea States have agreed to install the AIS system by the set date. An expert working group assembled for AIS under the chairmanship of Sweden has been meeting since February 2002 to supervise the installation of the AIS system. It has already drafted the technical requirements and made recommendations for a practical procedure in the initial working papers. Further, discussions are under way as to whether 01.07.2004 as the date for introduction of AIS can be brought forward[165].An AIS system necessitates on board equipment, land stations and a network with other similarly equipped partners i.e. neighbouring AIS land stations or commercial partners in the ports, shipping concerns etc. Like the equipment, the software and regular maintenance of thesystems are quality requirements and will generate a new market at home and abroad for sophisticated equipment and services in the maritime industry. It would not be advisable to allow this market to pass to foreign suppliers.V. Cooperation with the EU CommissionCooperation from the EU Commission should become closer through comprehensive data exchange and a technical agreement with the planned European Maritime Safety Agency (EMSA). These measures could however then only be applied if the EMSA and the proposed EU Memorandum on data exchange are first in place.VI. Phasing out of single hulled tankersThe Baltic Sea States are now obliged to tender their respective declarations to the IMO regarding the phasing out of the old single hulled tankers that they do not intend to invoke the exemption clause which permits the limited operation of single hulled tankers after 2015 (2017 at the latest). This should with the help of the new HELCOM recommendation (22E/5) in Appendix IV of the HELSINKI Agreement be extended to include a legal obligation after 2015 to allow no home based or foreign tankers admission to the ports of the States. Further, a regulation should be formulated with the commercial partners on the safer transportation of orimulsion[166].The EU Baltic Sea States have already moved on the EU Declaration on the definitive phasing out of single hulled tankers after 2015; the non-EU Baltic Sea States will tender their individual declarations with the required content to the IMO. HELCOM should give this problem priority in view of the import and export of orimulsions.VII. Port State ControlThe paper also calls for the introduction of port state controls in Latvia and Lithuania based on the Memorandum of Understanding of 1982 or the appropriate EU guidelines, since Estonia has already been applying port state control with special status since 05.05.2001 and has access to the SIRENAC data bank[167].Estonia, Latvia and Lithuania are taking concrete steps to prepare for full membership of the Memorandum on Port State Control of 1982. A date has however not yet been announced.VIII. Examination of the advantages of PSSAThe advantages and disadvantages of a PSSA regulation for parts of the Baltic Sea [168] should be examined by 2003 to identify suitable areas.The examination procedure as to whether additional PSSA areas in the Baltic Sea are a sensible proposition is outlined in the detailed working paper “A possible designation of certain areas of the Baltic Sea as Particularly Sensitive Sea Areas (PSSA)”[169]. Based on this, the existing safety measures will first be defined, followed by an analysis of the need for eventual additional measures, an examination of the enforcement possibilities and finally a motion in the IMO in accordance with the new guidelines[170]. The Baltic Sea States should state their specifications for the inventory by the end of June 2002[171] before HELCOM SEA can advise on the issue of additional measures, for which a “lead country” must be found to table an eventual motion in the IMO. A one day PSSA-Workshop was held on the initiative of WWF Finland on 07.05.2002 in Espoo (Finland). It is intended ultimately to incorporate the results of the PSSA motion for the Wattenmeer in the eventual tabling of the motion[172].IX. Maritime safety information on the national websites (information related to safe navigation)Comprehensive electronic information on maritime safety throughout all the Baltic Sea States is necessary, with links to particular risks, services and accident management.This measure can most certainly be implemented although the States have their doubts, in that information of this nature will have to be published and maintained in several organisations and networks. Denmark will be the first country on the network .X. Creation of a joint “safety culture” through investigations into marine casualtiesThe creation of a joint “safety culture” through investigations into marine casualties should include the detection of irregularities in the implementation of the ISM Codes, implementation of the IMO Code for the investigation of marine casualties and the introduction of data exchange on accidents.All the Baltic Sea States are working on the appropriate national legislation for investigations into marine casualties[173]. The need for a common accident database for all the Baltic Sea States was an item of HELCOM SEA 5 in May 2002. A data bank in the framework of the IMO might be more feasible than a regional Baltic Sea data bank[174].XI. Provision of adequate capacities for fire-fighting, emergency lightering andemergency towingcalls for plans for closer cooperation[175] and prompt reaction, especially in the south-western and central Baltic Sea and the Gulf of Finland as there are still some deficits according to HELCOM investigations.There is a draft recommendation on this subject[176], in which the Baltic Sea States are demanding that these recovery facilities be kept on permanent standby after the necessary agreements have been concluded with the salvage contractors, that bilateral plans for individual maritime regions be examined and rescue capacities be ensured through restructure from the bottom up.XII. Planning of places of refugefor vessels in distress in home waters and exchange of information and support for these efforts in the EU and the IMO.Places of refuge must be designated through measures within the State. The Baltic Sea States will address the issue independently. Plans for legislation are currently being prepared in the EU and IMO working groups[177].XIII. Provision of adequate pollution control response capacitiesby following the existing HELCOM recommendations; however, research and development are called for in the handling of high viscosity oils und “orimulsions” (Oils which disperse rapidly in water) and also the combating of oil pollution in ice.In the German Baltic Sea ports there has been no experience of handling orimulsion cargos to date. The handling of orimulsions was an item in HELCOM SEA 5 in May 2002, while the subject of pollution control in ice was addressed in the workshop from 20-22.11.2001 in Helsinki, as there is further need for research.XIV. Cooperation in coastal cleanup workthrough better national precautions and mutually organised cooperation has run into practical difficulties. The 5th. HELCOM SEA Meeting in May 2002 temporarily shelved this aspect of cooperation[178].All the Baltic Sea States already have certain capacities for cleaning up polluted coasts: Germany has however been particularly informative over its own precautions[179].In order to improve cooperation in this issue the States are called upon to provide information by September 2002 on their respective capacities and responsible organisations, after which the HELCOM Secretariat can put forward recommendations.Germany, Denmark and Sweden will shortly conclude a trilateral agreement, which extends the existing bilateral DENGER Plan for cooperation in the event of environmental disaster to include Sweden. Poland is overhauling its entire emergency plan, Germany too[180], while Sweden is considering commissioning two new multi-purpose vessels capable of emergency towing and pollutant collection for its Coastguard. A cooperation agreement on maritime accidents and control of oil pollution for the “Pomeranian Bight“ was concluded between Germany and Poland on 20.11.2001.XV. A welcome offer from Germany, a joint IMO/HELCOM workshop “Environmental Impacts due to the Increased Density of Shipping in the Baltic Sea”to include a progress review of the state of implementation of the resolutions of the Special Conference of Transport Ministers in Rostock in 2002.Regarding the joint IMO/HELCOM/EU workshop in 2002, the States were called upon to present topical recommendations. The German recommendation was to hold a two day workshop in Rostock in March 2003 with a plenary sitting and panels on pollution, routing, coping with ice, combating pollution, ballast water management and sanctions against offenders. As plenary themes a form of progress review of the measures of the Special Conference of Transport Ministers and an analysis of traffic in the Kadet fairway were proposed.Examination of these manifold activities in the wake of the Special Conference of Transport Ministers shows that many positive initiatives have been set in motion. No legally binding resolutions have resulted from the Conference of September 2001. The spirit of the event however lay in the realistic effort on the one hand to settle the existing differences of opinion between the EU Baltic Sea member States and on the other hand to sway Russia, Poland and the Baltic Republics to a firmer course of maritime safety policy and persuade them to take a joint position in the IMO and HELCOM.b Other HELCOM activitiesThe 5th. HELCOM SEA meeting in May 2002 deliberated among other things on ships’ waste disposal, in particular the harmonisation of the “no special fee system” based waste disposal of the Baltic Sea States with the EU guideline 2000/59 on EU-wide waste disposal[181].HELCOM-SEA decided that the “no special fee system” which has up to now been stipulated only for disposal of oily waste should be extended to include ships’ waste (“garbage”). The wish was expressed for more flexible rules regarding the order for sport boats to collect faeces (“sewage”) in cess tanks on board and dispose of them in port. The transition period for the conversion of older sport boats by 2005 not only means high costs but also technical problems for the many sport boat marinas as well as the enforcement of standardised discharge connections[182]. The Finnish port of Turku has provided data on a long term waste disposal trial which contains valuable experience in the financing and practice of waste disposal in a cargo handling port.The Danish report on the „BALTIC CARRIER“ accident[183], the subject of the 5th. HELCOM SEA Meeting, was a significant topic. The accident, which occurred on 29.03.2001 in the German EEZ, while the 2.700t oil spill polluted the Danish coast, was of signal significance as the entire Danish emergency organisation and also cooperation from Germany and Sweden were necessary in the emergency. It is important to note from the conclusions of the Danish report that:• the alarm phase, the response of the Danish vessels and the cooperation with the neighbouring States were most satisfactory under the direction of the Danish Navy,• prompt oil test analysis by helicopter needs improvement,• the oil combating vessels had serious difficulties in collecting high viscosity oil,• Denmark lacks vessels equipped for collecting oil in shallow waters,• oil collecting vessels must be able to heat the collected oil in order to discharge it,• the storage capacity for the collected oil is insufficient,• no irreversible ill effects on bird life or environment are anticipated.A new updated version of the HELCOM manual on combating marine pollution was published in April 2002 as the “HELCOM Manual on Co-operation in Combating Marine Pollution, Volume I”[184]. It consists of 12 chapters and some 180 pages and addresses all national information, procedures for reciprocal assistance, questions of aerial surveillance, organisational and financial questions and guidelines for their application. Sweden has taken on the task of bringing the remaining Vol. III of the manual up to date and reported on it in May 2002 at the 5. HELCOM SEA Sitting[185].The prosecution of illegal oil spills is part of a report from May 2002, which contains some 472 cases of illegal venting of oil in 2000, very few of which have led to punitive action on the culprits[186]. On the other hand, both the number of oil spills and their volume have decreased slightly over the years.The next joint exercise on combating oil pollution (“BALEX DELTA Exercise 2002”) is to be held at the invitation of the Latvian Environmental Ministry from 21-22.08.2002 in Liepaja[187]. A planning conference was held in Poland from 21-22.02.2002, which focussed in particular on civil-military cooperation in the event of a major disaster[188].HELCOM is preparing for 2003 an ecological status report entitled “State of the Baltic Sea Marine Environment in 1999-2002”, which summarises the conditions in the Baltic Sea for the period from 1999 to 2002.Finland and Latvia have formulated a recommendation that all single hulled tankers over a certain size, still to be determined, should be accompanied by escort tugs while in passage between the port and the open sea, during which the tug should be made fast at all times to the stern of the tanker.The recommendation relates to the conditions in the Gulf of Finland[189].Finland and Latvia presented a preliminary tabulation and charts on 89 shipping accidents in the Baltic Sea in the 2 year period between 2000/2001[190]. Although not yet complete, this illustrates that most accidents (groundings) happen near ports and in straits, especially in the Baltic Sea approaches. 13 of these 89 accidents led to oil spills. A total of 8 tankers, including 5 single hulled and 3 double hulled tankers were involved in accidents. The most serious oil pollution is attributed to a double hulled tanker.[191]. This analysis is of a preliminary nature and has not yet been concluded. Finland has also presented a statistical analysis on the volume of oil transportation for the entire Baltic Sea [192], which lists the number of tanker movements and the volumes being handled. An increase of 40% in the quantities of oil has been projected by 2015. The final version of this report will be published shortly.Other important HELCOM events are to be held in. The 24th. HELCOM Plenary Meeting is scheduled for the 23-27.06.2003 in Bremen as a joint ministerial conference of HELCOM/OSPAR (North Atlantic Cooperation in Marine Environmental Protection). The agenda includes a status report on the current state of implementation of all the existing HELCOM recommendations by the Baltic Sea States –a “moment of truth”, so to speak, for how seriously the protection of the Baltic Sea is being taken. A Ministerial Declaration will also be prepared to supplement the Copenhagen Declaration of Sept. 2001 and the Bergen Declaration from the 5th. North Sea Protection Conference. Further, the important HELCOM SEA Group which is responsible for shipping dependent marine environmental protection is expected to hold its 6th. Meeting in Rostock in autumn 2003.c Considerations for an International Coastguard in the Baltic SeaThe question of a joint Baltic Sea States coastguard has to date – so far as is known – not been seriously discussed. Such issues have not been included in the HELCOM agenda up to now. Before the idea of a Baltic Sea coastguard is addressed, one should be reminded of the risks to be jointly combated in the Baltic Sea. Maritime safety as a pivotal issue is a componentof this report and need not therefore be reiterated. Apart from maritime safety there is also thequestion of port safety [193] in this scenario, as terrorist attacks must not be discounted.The terrorist incidents of 2001, added to the ever present narcotics trafficking, human trafficking, illegal migration (especially in the Mediterranean) and organised crime - in worldwide relationship to piracy - have in the last few months led to a lively discussion of all questions of maritime safety, which is also important to the Baltic Sea where a certain safety partnership already exists. The following points call for consideration:28. organised crime,29. environmental crimes which contribute to pollution in the Baltic Sea (e.g. radioactive material),30. human trafficking, including the smuggling of such,31. the horrendous scenarios of terrorist attacks at sea on cruise ships or tankers carrying hazardous cargos,32. terrorist attacks on ships in ports and canals.i Cooperation with Border Authorities Safety Partnership in the Baltic SeaSafety is a crucial factor to the competitive ability of a region. For this reason the Baltic Sea Council concluded the ”Baltic Sea Region Border Control Cooperation” at top government level on 3/4.05.1996 in Visby.The theme has also been introduced into Baltic Sea political cooperation as “Civic Security”[194]. The Ministers for Justice and the Interior of the Baltic Sea Council intend to recommend to the heads of States and Governments an ongoing safety conference at ministerial level[195]. The Council of Baltic Sea States on 10.06.2002 in St. Petersburg was however only able to reach agreement on addressing organised crime and terrorism in the context of the present cooperation and to review it in two years [196].The loose organisational alliance of the “Baltic Sea Region Border Control Cooperation” serves to combat organised crime in the Baltic Sea region. The criminal routes are for instance Königsberg/Kaliningrad and Tallinn, through which narcotics, infectious diseases, organised crime, weapons trade, trafficking in women and smuggling of immigrants are introduced[197]. The countries cooperating in this issue include not only the nine neighbouring Baltic Sea States but also Norway. Each State makes a National Coordination Centre available which prepares and exchanges a weekly situation report, data and information. The work is coordinated by a Task Force, which comes together under the personal assignment of the heads of government. The Task Force reports to the heads of government at regular intervals.The Operative Committee OPC represents the technical arm of the Task Force over which Denmark has the presidency from 1st. January 2001 to 31st. December 2002. The incumbent presidency is also assigned the Secretariat duties. Each State taking part in the cooperation pays its own way. The Task Force should contribute to the cooperation already begun by the General State Prosecutors[198] and the Directors of Inland Revenue of the neighbouring Baltic Sea States.The operative work is done in the OPC. It should meet at least five times a year and report twice a year to the Task Force. The participating countries have to ensure that multi-disciplinary participation by police, customs, border patrol, coastguard and other prosecuting bodies is represented in the OPC. In Germany the principal work lies with themaritime border guard at the Neustadt inspection point. The OPC is responsible for the work of the existing 7 expert groups on the individual issues (e.g. environmental crimes, illegal migration and trafficking in people, money laundering, narcotics offences, amphetamine production and smuggling, international vehicle theft and smuggling). The cooperation extends to information exchange, cooperation with the justices and the promotion of general initial and further training. The coastal States of Schleswig-Holstein and Mecklenburg-Vorpommern have a permanent seat in the OPC.There have been a number of examples of successful joint actions, the majority of which have however naturally led to arrests and prosecutions on land i.e. in the ports and not actions at sea. Joint investigation groups of border police and crime squads, waterways police, BGS and customs in the port cities have become commonplace. They maintain direct contact with their partner services in the other Baltic Sea ports, especially those ports where a direct ferry traffic exists.In all these issues cooperation in the Baltic Sea has already reached a higher degree of integration than in the North Sea. It is clear from the results that in the network of over 70 cases of Baltic Sea cooperation a pragmatic cooperation between police forces all over the Baltic Sea in important shared areas has prevailed for quite some time. It also extends to comprehensive, partly bilateral training, equipment and advisory assistance.All over the Baltic Sea not only business and traffic are flourishing but also crime. The Baltic Sea as an escape route and as ”sea of criminal opportunities ” [199] is a sad reality.The focus of the battle against these manifestations is without doubt on land and not at sea. The ports, as the crossroads and the human and material traffic in the hinterlands of seaports, must be controlled by police. The controls at sea i.e. with coastguard ships and helicopters are of repressive significance.In view of the recent sharp increase in people smuggling in the Mediterranean[200] Council of EU Ministers for Justice and the Interior is now addressing illegal immigration from third party States. The Commission is considering a new “repatriation policy ”, an integrated plan for maritime border controls and political measures against States which as countries of origin or transit are tolerating illegal migration. An expert group on illegal migration and people smuggling began work in May 2002. Countermeasures must where possible be effected before the ships sail from their countries of origin.ii Anti-terrorism Legislation in GermanyThe new German “Legislation on Combating International Terrorism (legislation on anti-terrorism measures)”, which has been in force since 01.01.2002 after adoption in the Bundestag on 14.12.2001[201], contains an important amendment under Article 6 to the Federal Border Control Legislation [202]. Under this the border control is extended inland by 50 km. from the seaward limit, i.e. the 12 sm. sovereign limit. The Federal Minister of the Interior is also authorised by statutory order and with the consent of the Bundesrat to extend the border control of the seaward limit if necessary by up to 80 km. inland. This measure considerably extends the area of responsibility of the federal frontier guard (BGS) for control of persons and matches it to the new threats. In practice this means access for the BGS to illegal immigrants and criminals on the streets and in trains far into the hinterland of the ports.The immigration regulations, including the asylum legislation should be brought into line in the EU by 2004. Their implementation on the outer borders, including at sea, calls for a control activity to be implemented according to identical measures, i.e. an integrated concept for maritime border controls. This development at EU level will also give rise to the need for action from a modern coastguard.iii Theoretical Model for a Joint Coastguard in the Baltic SeaWhile a EU Coastguard was discussed fruitlessly in the European Parliaments Committees in the nineties[203] and is of late being aired again via the calls for improved maritime border security[204], the notion of a joint Baltic Sea Coastguard – so far as can be seen – has not yet been seriously addressed. The Grobecker Commission for instance in its final report only called for the active maritime services of the Federation to be combined into a (German) “sea watch”[205]. The analysis of weak points made by Professor Dr. Clausen, Kiel under Recommendation 21 called for, among other things, “a joint European regulation for the North and Baltic Seas” and finally “ for a European Coastguard to be established, with German help and a high ranking directorate”[206].The model and ideal for all coastguards is the US Coastguard. It epitomises for the USA an efficient form of authority and jurisdictional flexibility, enjoys a good reputation and is feared and respected by shipping of every flag[207]. The number of shipping accidents off the coasts of the USA, relatively low in comparison with Mediterranean, North Sea and Baltic Sea, speaks for itself. The US Coastguard is however a service with a military command, 35,000 officers and crews (and 8,000 additional reservists), hundreds of offices, ships and aircraft. The variety of assignment extends to:♦ rescue of life and property at sea (SAR and salvage)♦ organisation of safe and efficient maritime transport systems (waterways administration and navigation systems)♦ environmental protection of the waters (vessel controls and accident management)controls and enforcement of national and international laws (including the control of smuggling, narcotics offences and immigration)maintenance of national security interests in case of defenceIf one should examine the notion of a Baltic Sea Coastguard more closely, then certain pivotal political questions always arise initially, as in the case of a EU Coastguard:1. Are the States ready to surrender their sovereign rights of intervention and if so, to what extent and on which terms?2. How should the relationship with the (further) existing national services, in particular the navies and the police be regulated?3. Are there in fact sovereign services in all States which could be combined?4. How should the finance and command structures be regulated?The area of activity of a Baltic Sea Coastguard would reach from Skagen to St. Petersburg and extend to the sovereign waters (national waters, coastal seas, economic and fishing zones of nine states). Nine different legal systems with various administrative traditions and structures (policing laws, environmental protection legislation, rights of intervention, roles of navies) come into the equation. The EU member Baltic Sea States represent a partially homogeneous group which disassociates itself from the outside (Schengener Agreement), while the non EU states do not as yet participate directly in the EU legislation (e.g. with regard to maritime safety).The "operational areas" for a central Baltic Sea coastguard are completely different due to the navigational-hydrographical conditions, the risks to navigation, the ice drift and the threat to the environment, because the Baltic Sea stretches like a series of sea basins over some 2,000 km. The Gulf of Bothnia cannot in terms of risks be compared to the Kadet fairway. The tanker ports are concentrated in the eastern Baltic Sea while the heavy passenger traffic is confined to a few established routes in the western and eastern Baltic Sea.To be effective, a joint coastguard needs a tight organisation, an obligatory communication structure and the immediate and absolute command over vessels, aircraft, helicopters, rescue and cleanup vessels and equipment – in other words – personnel and resources.If we take the Baltic Sea in the round, Denmark has delegated the tasks of coastguard and oil pollution control to its navy and concentrated rescue, salvage, fire fighting and other intervention under military command in the Aarhus Naval Command[208]. This is undoubtedly the cheapest and best solution because it gives the Danish Navy a meaningful peacetime assignment and saves setting up parallel civilian structures. The coastguard role of the Navy is nevertheless not without costs, it must be financed by an additional budget.The picture in Germany is predictably unclear and many-layered[209]. While the narcotics control is assigned to the customs and people smuggling to the Maritime BGS, targeted acts of aggression could well be a challenge for the Navy, although the legal basis for this is as yet unclear.Sweden has had its own legally appointed coastguard for about ten years with its own resources and access to the funds of other authorities[210].In Finland the main responsibility lies with the Environmental Department (Miljökontoret), answerable to the Ministry for the Environment. In addition there are the border control and fire departments.Norway prefers a regional linkage under the responsibility of the police, while a form of coastguard is subordinate to the Navy and works in cooperation with the industry.Things are still in the development stage in Poland. There is a “Polish Rescue Organisation PRO”, but only in the form of a private concern. The port authorities too play an important role there.Estonia has also begun to set up an oil pollution control organisation in the context of the State Maritime Administration.In Latvia the duties are assigned only to the naval framework.In the HELCOM cooperation various surveys and enquiries run continually on the inventory of rescue facilities, emergency towing and salvage capacities and the resources for combating pollution[211]. Massive information and development aid are being offered to many shared areas within the HELCOM framework.It is clear from this review of the facts that the time is not yet ripe for a Baltic Sea Coastguard. The consideration is however not altogether irrelevant. As a long term aim a EU Coastguard, confined for instance to waters such as the North Sea still appears remotely feasible, as there is a somewhat general threat in a framework of joint (EU) regulations and understanding in joint necessity in the relationship between Holland, Germany and Denmark. A EU Coastguard “from Haparanda to the Sea of Marmara”[212] would be an overly bold project as the navigation relationships would be just too different and the subsidisation principle would be breached. However, there is an available basis for common interests for the Baltic Sea which can be built on in the form of the HELCOM Organisation and the cooperation of the Interior and Justice Ministries.Starting points for further considerations for a Baltic Sea Coastguard would include:a synoptic inventory of the coastguard services in the Baltic Sea,the prompt establishment of coastguard services in countries where they are still lacking,combining the existing coastguard services (electronic, joint units, central reporting, exercises etc.),commissioning of a working group assigned to develop a plan, and its realisation in phases, for a Baltic Sea Coastguard,and/or allocation of an expert report assignment for the conception.3.4. Implementation of the HELCOM Recommendation – 1st. Baltic Sea Protection Amended RegulationWith the tabling of the draft of the “1st. Baltic Sea Protection Amended Regulation” in May 2002[213] the incumbent Federal Ministries for Environment and Transport (BMVBW) have paved the way for the implementation of a large number of HELCOM recommendations in German law.Article 1 of the Regulation transforms HELCOM Recommendations No. 21/1, 21/2 and 22E/5. The last mentioned recommendation concerns the results of the Special Conference of Transport Ministers of 10.09.2001[214]. The foregoing recommendations concern agricultural pollution sources and disposal of ships’ waste. The new Regulation contains in its Appendix for the sake of simplification the German translation of the English HELCOM recommendations and declares these applicable.The following are transformed in German law:• sewage and disposal facilities for toilets (also for sport boats),• compulsory disposal of all waste in port disposal facilities ,• ban on the incineration of ships’ waste,• ban on single hulled tankers by not later than 2015,• improved hydrographical services and electronic nautical charts,• introduction of the AIS system,• implementation of port state controls,• establishment of a standard procedure for the investigation of shipping accidents,• plans for shelter ports/emergency moorings-This procedure will ensure the (astonishingly) rapid implementation of the HELCOM recommendations of 2000 and 2001 in German law. The new Regulation on the disposal of ships’ waste and on most other tasks comes into force 01.01.2003 pending the recommendations of the Bundesrat and the Bundestag, which appear likely. This measure will then be in line with the EU schedule for the disposal of ships’ waste [215].National initiatives/ other maritime safety and environmental aspectsa New regulation for the navigational safety investigation legislation (SUG)/ 2. Oceanic shipping adapted legislationA new navigational safety investigation legislation (SUG) has been in force since February 2002 with an entirely new investigation procedure which replaces the old regulation[216]. The new legislation came into force in June 2002 when it was published in the Federal Legislation Paper[217]. The new system, including the structure of the authorities, will be in place by the end of 2002. The order of business is currently being prepared. The SUG has overcome the strong resistance in the coastal States, all the shipping circles and the environmental associations which makes it possible to apply the new system rather more comprehensively here.i Content of the new SUGIn a comprehensive “article legislation” for the adaptation into law of certain conditions in oceanic navigation to international standards[218], the Bundestag has with the agreement of the coalition factions on 21.2.2002 addressed fundamental reforms in the investigation of maritime accidents. The legislation on investigation of maritime safety (SUG) contained in Article 2 regulates under public law the administrative reach of the Federation in matters of oceanic navigation (Article 74 No. 21 GG), which the Federation maintains through its own authorities under Article 87 § 1 sentence 1 GG.Due to ongoing criticism[219],especially from the coastal States, [220] of the draft legislation on investigation of maritime accidents, a hearing was called in the Bundestag Transport Committee in November 2001.Important points criticised by the States were:- the dismantling of the two phase part of the procedure,- the modelling of the procedure on the legislation for investigation of aircraft accidentinvestigation,- the separation of investigation of causes and attachment of blame and- the non – public nature of the procedure.Under the present legislation and that of the new SUG,[221] the aim of the legislation on the investigation of maritime accidents is to investigate objectively the causes and circumstances of the maritime accident in order to establish exactly why the accident occurred.The new SUG dispenses with several current tenets of investigation by the maritime authorities[222]. In future the double function of the present maritime authorities will be obviated; instead of this the investigation of the causes should be transferred to one of the Federal offices to be formed from the Supreme Federal Maritime Authority; the other maritime authorities will only remain responsible for the withdrawal of permits. The present two phase part of the procedure for the objective establishment of causes will also be dismantled, i.e. there will be no more opportunity for objections.The objective establishment of causes of a maritime accident, modelled on the legislation for aircraft accident investigation, will be carried out through an internal administration procedure[223]. The Supreme Federal Maritime Authority in Hamburg, to be renamed the "Federal Authority for the Investigation of Maritime Accidents", should act and function independently without taking instructions. The procedure is modelled on the legislation for aircraft accident investigation and will be transformed to a purely technical investigation procedure. The Federal Authority should cooperate closely with the Federal Authority for aircraft accident investigation. The director of investigations will in future no longer be a judiciary but rather a federal civil servant with technical-nautical qualifications.The present maritime authorities will only retain a form of token responsibility and should only rule on the withdrawal of a permit (revocation of patent). Their former independence will be severely limited. The maritime authorities may only act if they are delegated the direction of waterways and navigation by the examining authority. In cases of operating while excessively intoxicated for instance, a permit may no longer be summarily revoked as the necessary legal basis of § 14 sentence 6 SeeUG has been abrogated. Public procedure can now only follow with the consent of the parties involved.The procedural principle of the public nature of the maritime court method is also surrendered. Public procedure however leads to transparency and a wide acceptance of the maritime court rulings and also to a higher degree of law and order. This holds particularly true for accidents which arouse strong public interest. The public forces at one stroke the maritime court and the parties involved to the necessary objectivity. The supreme importance of public procedure and transparency was illustrated by the investigations into the "ESTONIA" accident, which were not publicly conducted. Its results were still not accepted long after the presentation of the investigation report; instead reproaches were laid against the investigation commission and its individual members. This investigation report has not therefore contributed to law and order in Scandinavia and Estonia.Under the new SUG the investigation becomes a purely internal administrative official investigation procedure which terminates in a report. There are no active modelling possibilities in the context of this procedure for the parties involved. There is no authority for a second opinion of the facts for the amendment of errors in the inquiry and assessment. Means of legal redress against the investigation report have not been projected.The participation of the parties involved in the investigation report from the new federal office is confined to being able to comment on the draft of the report and if necessary add a "Dissenting Opinion". This does not compare to the participation in the present maritime court procedure which, in the context of a public procedure, gave the parties involved the possibility to influence the formation of opinion on the circumstances of the accident through the preliminary presentation of facts and opinions. The fact that contradiction has relatively seldom been raised up to now against maritime court rulings is rooted also in the public nature of the procedure and their transparency.The draft bill follows principally the legislation for aircraft accident investigation. The question begs as to whether this adaptation is appropriate and whether ship and aircraft accidents are of a comparable nature. In the investigation of aircraft accidents the first task is to reconstruct the circumstances of the accident from the remains of the aircraft and in particular to find the black box. Highly complicated technical investigation come first. According to statistics, 80% of all accidents at sea are attributable to human error. The task of the maritime accident investigation is to establish the circumstances surrounding this failure and especially to find the cause. This is conducted as a rule first and foremost by interviewing the crew members, whether they are involved or witnesses.Aircraft accidents frequently have similar catastrophic results. The complex overlapping technical systems are the focal point of the investigation. The technical analysis is therefore in the foreground of the flight accident investigation. In oceanic navigation it concerns in the main the assessment of human behaviour at the inquiry into the cause. The modelling of the maritime accident investigation on the example of aircraft accident investigation therefore could well be considered problematic but is largely beyond legal judgment.The consistency of the new SUG with national, European and national constitutional law does however require special consideration.ii Standards of International LawThe Federal Republic of Germany is as a Flag State obligated under several national legal agreements to sanction the official investigation of maritime accidents involving any vessel under its flag.These investigation obligations come under the following definitions:• Article 94 § 7 of the UN Law of the Sea Agreement;• Article 23 of the International Freeboard Agreement of 1966;• Article 12 of the International Agreement of 1973 on the prevention of marine pollution by ships in the1978 version of the Protocol (MARPOL 73/78);• Chapter I Regulation 21 of the Appendix to the International Agreement on the protection of human life at sea (SOLAS);• Article 2 Agreement No. 147 from 1976 of the International Labour Organisation (ILO) on minimum standards in merchant vessels.In addition, under Article 2 SRÜ, the Federal Republic can as a coastal State investigate all ships, regardless of their nationality, which have been involved in maritime accidents and incidents in its coastal sea or inner waterways. As it should in particular take measures under Article 194 § 3. b SRÜ to prevent marine pollution from shipping there is an obligation to conduct accident investigations aimed at the prevention of accidents. The IMO has more precisely defined and added to the content of this standard under international law for the investigation of maritime accidents in its Resolution A.849 (20) of November 27th, 1997 with the “Code for the investigation of accidents and incidents at sea”[224] (IMO-Code) and added a supplement through its Resolution A.884(21) from 25th November 1999.The adaptation of the German legal position to the necessary international and European requirements and conditions gives rise in the view of the Federation to a principal need for new regulations on legislation[225]. The Federal Government maintains that the old legislation on investigation of maritime accidents (SeeUG) was not suited to the IMO-Code and a new regulation is therefore needed for the official investigation procedure to international standards for cases of damage or incidents presenting a danger to navigation.The IMO-Code should call for a uniform procedure in the States “in the investigation of accidents and other incidents at sea and the cooperation of the States in the inquiry into the circumstances which contribute to maritime accidents”[226]. It contains a standard for the conduct of the investigation of accidents. The Code states:"The objective of any marine casualty investigations is to prevent similar casualties in the future. Investigations identify the circumstances of the casualty under investigation and establish the causes and contributing factors,by gathering and analysing information and drawing conclusions. Ideally, it is not the purpose of such investigations to determine liability, or apportion blame. However, the investigating authority should not refrain from fully reporting the causes because fault or liability may be inferred from the findings."In the "Guidelines to Assist Investigators in the Implementation of the Code" it states.:"In particular, co-operating investigators must be guided by the requirements of national law over issues such as the presence of legal advisors or other third parties during an interview".For the purposes of a uniform procedure in the States in the investigation of maritime accidents the Code excludes the clarification of questions of liability and possible attachment of blame in the investigation of accidents[227], takes the principles of sovereign powers into account[228], defines central terminology including that of “maritime accidents”[229] and the investigation obligations[230], contains guidelines for conducting the investigation[231], emphasises the obligation of Flag States in Article 94 § 7 sentence 2 SRÜ to cooperate with other States[232] as well as the principle of anonymity[233] and sets standards for the formulation of the report and its presentation to the IMO[234]. On the other hand, the IMO Code allows for an extensive transfer of data on persons to third party countries and treats in principle public and non-public accident investigations as equal, i.e. it leaves the arrangement to the States.In addition, the IMO code, as already mentioned, recognises the right of the "States with a considerable interest" to participate in an accident examination. Such an interest includes actual or threatened serious environmental damage by foreign ships outside its coastal sea or the death or serious injury of nationals.The IMO Code, as a part of IMO Resolution A.849 (20) under Article 15 J of the Agreement on the International Oceanic Navigation Organisation, only has in fact the legal nature of a recommendation. However, this does not mean that the Code would be insignificant in international law as experience has shown that there is the danger of pollution from ships inevery maritime accident and this has to be prevented by the States. The regulation of maritime accident investigation is part of the law and other regulations, which the Federal Republic should sanction under Article 211 § 2, sentence 1 SRÜ on the prevention of marine pollution for ships under its flag. These laws and other regulations may not under Article 211, § 2 sentence 2 SRÜ "be less effective than the generally recognised international rules and norms" [in the English original: standards], laid down in the context of the IMO. The IMO code includes these generally recognized international "norms" for the investigation of maritime accidents and incidents at sea. It represents therefore the minimum standard under international law, below which national laws and other regulations on maritime accidents must not fall. Insofar as the Federal Republic of Germany is obliged by international law to implement the investigation of maritime accidents, these should be conducted according to the standards stipulated in the IMO code in the context of the respective national legislation.While the present § 24a SeeUG has in the opinion of the Federal Government (the coastal States were of a different mind) not met international requirements, §§ 9-19 SUG do meet the requirements of the IMO Code with regard to content. The new SUG formally fulfils the obligation of the Federal Republic of Germany under international law concerning the investigation of maritime accidents under consideration of the minimum standard set by the IMO Code for investigations.It should however be noted that the IMO Code requires these (technical) improvements to the SUG but stipulates nowhere the abolition of the public principle.Furthermore, there is a reference to the guideline 1999/35/EC of the Council from 29th April 1999. This relates only to maritime accidents or incidents at sea involving a Ro-Ro passenger vessel or a high speed passenger vessel plying in the regular traffic in journeys abroad or inland and visiting the ports of a member State (Article 3).Under Article 12, Para. 1 of the guideline the member States should stipulate a legal status “in the context of their respective system of laws” by which they can participate in, cooperate in or conduct the investigation of maritime accidents or incidents at sea insofar as the IMO code provides for this. The IMO code makes the investigation of all serious maritime accidents mandatory for all Flag States[235]. If the accident takes place in a coastal sea, the Flag State should confer with the coastal state over the direction of the investigation. Other States with a "considerable interest" can participate in the investigation. A State also has a considerable interest, regardless of the location of an accident, if the accident has caused or threatens to cause serious environmental damage in its exclusive economy zone or if its nationals are involved.Under Article 12, § 3 of the Guideline the investigation should be initiated by the member State in whose waters the accident or incident has occurred or by the last member State visited. The Guideline further states certain key terms of the IMO Code for the investigation of maritime accidents (Article 12 § 2) as well as the most efficient and timesaving as possible guide for participation, cooperation or direction of the investigation "in accordance with the definitions of the Code" (Article 12 § 4). The investigation reports should be published and presented to the EC Commission (Article 5).Every EU member State is to effectively implement the investigation procedure as well as its participation or cooperation in the investigation under Guideline 1999/35/EC and the related definitions of the IMO Code in the context of its system of laws.The new German SUG includes this implementation in Section 3. The SUG is an implementation law of Guideline 1999/35/EC and as such is therefore compatible with it. The EU Guideline however cannot be consulted either as grounds for the abolition of the public principle.4.1.3. SUG as a Law Requiring Federal Consent?The SUG is regulatory component of the second oceanic navigation adaptation bill. This provides in Article 1 No. 3 for the introduction of a new § 3e to the Maritime Registration Law (SeeAufgG), which allows for a compensatory claim against the traffic authority for replacement of the loss or damage suffered by the owner or operator.This liability regulation is not a case of breach of official duty in the sense of § 839 BGB relating to Article 34 GG, which presupposes a fault of the incumbent official. Although a legal regulation in the area of "state liability" would with § 3 e SeeAufgG nevertheless be provided for in the sense of Article 74, § 1 No. 25 GG, as with the introduction of this regulation the term "state liability" is understood as comprehensive and unlimited, so that all fundamental claims which are conventionally and systematically assigned to this area are included. The recommended § 3 e SeeAufgG therefore required the consent of the Federal Council in their opinion according to Article 74, § 2 GG[236]. However, the States have accepted this point without comment.The need for consent for the SUG and oceanic navigation adaptation bill does not arise from the responsibilities of the States concerned for nautical training requirements or port legislation as has occasionally been claimed by the States. The opposing opinion of the Federal Council is that the legislation regarding nautical training requirements (Article 1 No. 2 delete § 2 of the Maritime Registration Law) and those laws applicable to wharf, berth, discharge and dock areas (Article 2 § 1, § 3 SUG) require its consent.A law only needs consent then, if the constitution particularly stipulates this. The scheduled changes and additions in § 2 SeeAufgG however concern a law which did not in itself need consent. The need for consent would therefore only come under consideration here under Article 84 § 1 GG. This however is obviated because the States do not take care of their "own affairs" according to the amended § 2 SeeAufgG. The new Paragraphs 4 and 5 of § 2 SeeAufgG also do not regulate the facilities of authorities and the administrative procedures of the States if they stipulate material standards for the granting, extension or recognition of credentials in the sense of § 3. These are not measures for the nautical training requirements of the States but rather measures in the context of the Federation under § 2 Para. 2 sentence 1 SeeAufgG concerning the screening of applicants serving in maritime safety.The participation of authorities of the State administration in the form of the loan of officials on the basis of administration agreements between the Federation and the respective Federal State under the recommended § 2, Para. 7 SeeAufgG, does not need the consent of the law under Article 84, § 1 GG because this takes account of the loan of federal officials. The opinion of the Federal Council on this point is not clear. The law does need consent for the recommended amendment to § 2 SeeAufgG.In the corresponding opinion of the Federal Council the “Second Maritime Safety Adaptation Law” also needs consent as the validity of the Maritime Safety Investigation Law (SUG) under the legal clarification in § 1, § 3, sentence 2 SUG applies to the entire ocean voyage, including visiting, use and departure by vessels to and from “the wharf, berth, discharge and dock areas belonging thereto”. If under § 1 Para. 3 SUG it concerns a stipulation on a regulation for questions of inland or seaports of the States and communities it would not need the consent of the law. On the contrary, the regulation would be against the constitution due to lack of authorisation by the Federation in the legislation and therefore self-defeating because thelegislative jurisdiction for such ports lies with the States (with the exception of the support for the solvency of the seaports, § 1 No. 1 SeeAufgG).Meanwhile, according to the substance and contents of § 1, Para. 3 sentence 2, SUG this regulation – as in the applicable § 1 Para. 1 No. 2 SeeUG – does not concern a legal port regulation but rather the Federal legal definition the spatial scope of the SUG. This is fundamentally valid according to § 1, Para. 3, sentence 1 SUG for the "entire voyage" which, in view of the maritime safety inspection and regardless of the legal definition of the "bounds of the voyage" defined in § 1 flag statutory order according to § 1, Para. 3, sentence 2 SUG, should embrace “the visiting, use and departure to and from the wharf, berth, discharge and dock areas belonging thereto”. This determination does not require the consent of the Federal Council under the Constitution.4.2. Environmental Protection and Conservation Rights in the EEZThe exclusive economy zone (EEZ) surrounds the maritime area located on the other side of the coastal sea. Precursors of the EEZ were the fishing zones of the individual States. The SRÜ defines the rights and sovereign authorities of the coastal State and rights and freedom of other States. The EEZ must not exceed a breadth of 200 sm. measured from the base line, Article 55, 57 SRÜ? The most important rights and regulation authorities refer to fishing, the exploitation of mineral resources, scientific oceanography and the protection and conservation of the marine environment. The coastal State right must in the exercising of its rights duly take into account the rights of other States, particularly the freedom of navigation (Article 56 Para. 2 SRÜ). The Federal Republic of Germany claims an exclusive economic zone, effect from 1-1-1995. This belongs, unlike the coastal sea not to the sovereign territory of the State, but to the Federal Republic of Germany. At this point there is the question of the respective jurisdictions, in particular in such as the environment and conservation in the EEZ.4.2.1. Nature Conservation Problems and Marine Protected AreasThe German EEZ is subject to a heavy volume of traffic, especially in the Baltic Sea region[237]. Added to that are the problems caused by fishing and mining activities, e.g. the mining of gravel and sand as well as the increasing significance of offshore wind energy. From the economic point of view the EEZ has to be classified as an important maritime region. The economic use of this sea zone brings environmental problems with it. The shipping, fishing and mining all contribute to a negative influence on the maritime environment. The mining of gravel and sand takes place primarily in Germany in the offshore maritime area of the (quite shallow) Baltic Sea. The storage areas are partly in the inner waters but mainly in the coastal sea and theEEZ [238]. Wind energy installations too could have negative effects on the marine environment. In answer to the increasing impact on the marine environment the calls for an extension of the protected maritime areas in the EEZ are growing louder. Canada did this with the Ocean Act of 18.12.1996[239]. According to this Marine Protected Area is “an area of the sea that is part of ... the exclusive economic zone of Canada”. On this basis the protected areas have beenestablished by Canada both in the Atlantic and in the Pacific[240]. Australia has already declared 3.5% of its EEZ a Marine Protected Area since 1977. The USA, Ireland Denmark, Norway Portugal have also established Marine Protected Areas[241]. The same applies to Italy and Spain[242]. The question begs therefore, whether and in what manner protected areas in the EEZ can be established effectively for vessels under national or foreign flags.The protection of the environment and nature in the EEZ is determined in first place by the question of jurisdiction under legal points of view. The following explanations are devoted and hierarchically subdivided into the individual levels of legal environmental protection in this zone, insofar as they refer to navigation.4.2.2. Marine Protected Areas in International LawIt has already been acknowledged that the EEZ is not part of the sovereign territory of the States but the coastal State does have certain rights, sovereign authority and also obligations in this maritime zone. In view of the Law of the Sea Agreement one can derive from this situation that the high seas regulations are valid in the EEZ according to Article 58, Para. 2 SRÜ, provided that the terms do not provide for something else for the EEZ. In the area of the high seas all States are barred according to Article 89 SRÜ from asserting claims to sovereignty[243]. On the other hand the coastal State is allowed far reaching and exclusive rights in the terms of the EEZ which grants it in a shared area a similar position to its national territory. One speaks therefore with regard to the EEZ of a “functional sovereign territory“, which holds a status between a national territory and the sovereignty free high seas [244]. Marine Protected Areas and other attempts at environmental protection are conceivable at 3 different levels:1. at international level[245]2. at European legislative level3. at national levelFor the prevention and control of marine pollution by shipping the IMO has extended and amended the International Convention for the Prevention of Pollution from Ships from 1973[246] through the Protocol of 1978,[247] adopted from (MARPOL 73/78)[248]. It contains in particular regulations on the prevention of oil pollution caused by accidental and operational oil spills from shipping.MARPOL 73/78 authorises the IMO to declare a certain maritime area a "special area" – “ in which for recognised technical reasons in connection with its oceanographic and ecological condition and the special nature of its traffic the adoption of special obligatory methods for the prevention of oil pollution is required”[249]. These “special areas” are to be adopted e.g. in Appendix I of the MARPOL Agreement. The venting of oil within them is fundamentally prohibited. For example, the North Sea has been declared a special area for all vessels over 400 GRT since 01.08.1999.In these areas the strict mandatory environmental protection definitions apply relating to the prevention of oil pollution[250] and monitoring of pollution from hazardous substances transported as bulk cargo.[251]. The Baltic Sea is actually a “special area” under three MARPOL annexes for oil, refuse and sewage.In addition to this protection of relatively large maritime areas as “special area” the IMO can on the basis of the TSPP Resolution 9[252] develop guidelines on the establishment, protection and management of particularly sensitive sea areas (Particular Sensitive Sea Areas (PSSA)).The national legal permissibility of PSSA areas as exceptions from the fundamental freedom of navigation results under Article 211 Para. 6 of the Law of the Sea Convention. PSSA areas can be established in the EEZ and also in the coastal sea from 12 sm. in width[253]. The PSSA areas do not contravene the (international) nature protection laws or the rights of the National Parks but rather the international laws of the sea, because their measures relate to shipping traffic. Information on PSSA applications in the German coastal region can be found in this report under No. 0.Supported by Article 15 of the Helsinki Agreement[254] the signatories have with Recommendation 15/5 adopted in 1994 resolved to establish a system of protected coastal and maritime areas in the Baltic Sea (Baltic Sea Protected Areas - BSPA). The thrust of this intention is the establishment of ecologically important regions, including the German Baltic Sea coast, on benthosecological, fisheries-biological, ornithological and geological grounds[255]. Baltic Sea Protected Areas cover sea areas needing protection and the inner coastal waters of the Baltic Sea which with terrestrial coastal habitats often represent generally recommended areas.Under Article 211 SRÜ i.V.m. SOLAS, Chapter V Regulation 8 letters. b) and c) the IMO is the sole recognised organisation which can propose measures for shipping routes at international level. The HELCOM is only binding on the signatories of the Baltic Sea region. A binding effect on vessels of other flags is categorically out of the question.Special Areas under MARPOL and PSSA areas primarily serve as marine environmental protection and only indirectly as safety of navigation. As an instrument for the improvement of traffic safety on the shipping lanes should not therefore include detours via potential IMO protected areas. A joint action of the EU States in the IMO committees appears more effective and meaningful. To this end the introduction of a pilotage duty for the main traffic bottlenecks into the North and Baltic Seas should for instance be called.4.2.3. European initiatives in the AWZThe European Community should also be thinking along such lines as well as environmental protection activities under international law in the EEZ. It should be noted from Jarass that the EC Agreement is also valid in the EEZ insofar as the member States are entitled to sovereign authority there. The secondary right of the Community has in popular opinion the same scope of application as the EC Agreement as long as nothing else arises from the regulation in question. Provided the European Community has concluded international agreements, then these agreements have priority over the secondary right. This applies among other things to the Law of the Sea Agreement [256]. This then raises the question of permissibility and the scope of application of EU environmental protection guidelines in the EEZ.The application of EU environmental protection guidelines in the EEZ appears questionable. The establishment of so called FFH areas under the FFH Guideline [257] in this connection is especially interesting. As is well known, the FFH Guideline compels the member States in certain cases to register FFH areas. Jarass emphasises in its report that the FFH guideline is not recognisably restricted to the terrestrial area but also includes sea areas. Apart from the definition of "natural habitats" in Article 1b of the Guideline also includes terrestrial "aquatic areas". There is a regulation in article 4 on the choice of protected areas with regard to "animal species living in water". In addition, in Appendix I of the Guideline in which the "natural habitats of common interest for whose preservation special protectorates must be established" are listed right at the beginning under the heading "sea waters and tidal zones" in No. 1170 “reefs” and in No. 1180 “structures formed by emission of gases”[258]. The English High Court of Justice has also spoken for the application of the FFH Guideline in the EEZ[259].The application of the UVP Guideline in the EEZ appears less complicated[260]. No. 2 C of the Appendix to the Guideline mentions "the extraction" of minerals by dredging at sea as a potential UVP obligatory plan. This too is also only possible if the guideline is not confined to the terrestrial area. There is no instruction on the restriction of the guideline to inner waters or the coastal sea. It is then of decisive importance that guidelines containing no instruction on a restriction of the scope of application follow the scope of application in the EC Agreement. Since the Agreement also applies to the EEZ it must in principle also apply to the UVP guideline[261].The restrictions to the European guidelines (applicable in the EEZ) can however result from the Law of the Sea Agreement concerning the regulation of maritime safety as in applying the guidelines the standards of the Law of the Sea Agreement must be observed[262]. This necessitates a restrictive interpretation of the Guideline insofar as a protected sea area would lead to restrictions on navigation, fisheries and the laying of pipes and cables. In this respect it calls for the modification of the Guideline for navigation, fisheries and the laying of pipes and cables. The member States can be made fully responsible for registering certain areas in the EEZ which should be protected against damaging activities by the establishment of a protected area.[263]. The legislator of the European Guideline is not entitled to interfere with navigation. The FFH Guideline therefore also has a connection with the regulation of maritime safety, especially when it is of only secondary concern to third party States. Attendant problems resulting solely from environmental pollution from shipping can represent an elementof the Guideline since an agreement under national law, such as the SRÜ, to which the EU is a signatory, has precedence in EU law under Article 300 Para. 7 EGV over secondary right[264]. This then must be taken into account when defining the “necessary maintenance measures” in the sense of Article 6 Para. 1 RL 92/43. In view of this precedence, secondary right must be interpreted appropriate to these standards[265].4.2.4. National Nature Protection Legislation in the EEZBesides European and national legal jurisdiction in the EEZ there is the question of the rest of the content of national regulatory matter. Since the EEZ is not part of the sovereign territory of the coastal State, this may only enforce against third parties such measures and regulations relating to protected sea areas as are permitted under its sovereign rights and sovereign authority in this zone. The coastal State would otherwise assume sovereign authority to which it has no entitlement under national law (danger of so called “creeping jurisdiction”)[266]. The coastal State has “sovereign rights” in the EEZ as well as “exclusive”, i.e. sovereign authority excluding other States. It can not however claim sovereignty for itself[267]. The right of the coastal state to establish a protected sea area in the EEZ can only come with this authority[268].Regarding the establishment of a protected sea area in the EEZ the exercise of national right is therefore prohibited in the first instance due to territorial sovereignty. Jurisdiction results merely due to rights and sovereign authority recognised under international law. These are standardised in Part V of the SRÜ, according to which the coastal State has sovereign rights with respect to living and non living natural resources as well as with regard to other activities in economic research and exploitation of the zone. Sovereign authority refers to artificial islands, installations and buildings in the EEZ, scientific oceanography and the protection and the maintenance of the marine environment. The original jurisdiction of the coastal state is important due to national law in the delineation of jurisdiction in a protected sea area in regional / national law agreements, such as in the case of the HELCOM BSPA areas.In the first instance the coastal State can take protective measures in the area against anyone (erga omnes), while in the second instance it can only have effect on other signatories to the Agreement, its own nationals and vessels under its own flag (inter partes)[269].In the correct opinion of Lagoni the current national law still upholds no right of the coastal State for the establishment of a protected sea area in the EEZ [270]. Only Article 211 Para. 6 SRÜ quotes an exception, which authorises the coastal State with the consent of the IMO to establish protected areas for international navigation. These however afford no additional sovereign authority and are only applicable to signatories to the Agreement[271].§ 38 of the new Federal Nature Protection Legislation presents in particular the facts for the establishment of FFH and bird sanctuaries under EU law[272]. This permits the application of the Federal legal conservation regulation to the establishment of European protected areas for the EEZ. At the same time however, the legislation misses the measures in § 38 BNatSchG with priority over international right. The protection of sea areas in the EEZ cannot extend to the restriction of air traffic, navigation, military use permissible under international law or scientific oceanography projects in the sense of Article 246 Para. The new regulations of the BNatSchG do not therefore have any essential influence on the safety of shipping and the attendant threat to the environment.It is clear that under current national law the coastal states have an instrument for the improvement of marine environmental protection through appropriate protected areas and the possibility exists to establish these under regional agreement. Such positive efforts are under way at HELCOM in the establishment of the so called BSPA areas. There remains however a deficit in these protected areas, i.e. the lack of regulation and powers of intervention over third party States, the non contracting parties (only inter partes effective). An overall protection of the marine environment through protected areas is ultimately to be sought in the IMO. Corresponding efforts, such as the establishment of "Special Areas" in the past or the simplification of the PSSA application procedure should be supported.In any case, a clear statement of fact is the view[273], that the Law of the Sea Agreement affords the coastal state the general possibility, in the context of the exercise of its sovereign rights and exclusive sovereign authority of establishing environmental and nature conservation areas in its EEZ, especially with effect on navigation. Lagoni correctly assesses this form of national nature and environmental conservation as a form of “creeping jurisdiction”. Due to the legislative level (national law) the new BNatSchG can also do nothing to change this fact.4.3. Offshore Wind Energy and Maritime SafetyThe Renewable Energy Bill (EEG), which came into force 01.04.2000, favours the basic conditions for the construction of large-scale offshore wind energy parks. Every energy producer is guaranteed a buying price of 9.1 cents per kWh for nine years if the installation goes into operation not later than the end of 2006. Wind energy worldwide produced some 25,000 MW in 2001. The BSH as an approval authority received in spring 2002 about 30 applications for installations with altogether 25,000 MW. It is already clear from advance formal applications that in view of the variety and partial conflict of prospective users, only a few areas may be available for the use of extensive wind energy parks into the North and Baltic Seas[274]. As already described above, the Law of the Sea Agreement of the United Nations forms the legal framework for the use of the sea. This also applies to the generation of power in the EEZ which is permitted under Article 56. Article 60 SRÜ is particularly relevant here. It states:"The coastal State has the exclusive right to build the following facilities and to approve and to regulate the building, operation and use of the following facilities in the exclusive economy zone:a) artificial islands;b) Plants and buildings for the purposes provided for under Article 56 and other economic purposes;c) Plants and buildings which can impair the exercise of the rights of the coastal State in the zone. (...)“The approval of these installations in the EEZ was delegated to the BSH by the Federal Legislator. This regulates § 1 No. 10a of the Maritime Registration Law in which the examination, permission and supervision of such installations is standardised as a task of the Federation[275]. § 1 No. 10a of the Maritime Registration Law therefore represents at the same time the domestic implementation of Article 60 SRÜ.A national obligatory licensing of such installations is stipulated under § 2 the Sea Installations Regulations (SeeAnlVO)[276]. Under § 2 of the SeeAnlVO a licence is required for the erection,operation and use of such installations generating energy from water, tides and wind in the German EEZ area. The BSH is responsible but must obtain the consent of the responsible local waterways and navigation controllers concerning safety and free movement of traffic. The approval has the character of a planning and building permit but is valid as a legal police and conservation clearance certificate[277]. The SeeAnlVO – in the absence of a regional planning authority – does not provide for a selection procedure in applications for the same location.The licensing procedure, recently refined in the new regulation of the Federal Nature Conservation Legislation[278], has been arranged in several stages by the BSH. The public interests concerned are confronted with the applications in several development stages in which the circle of locations involved grows. Interest groups (conservation, shipping/navigation, fisheries, wind energy etc.), are included in the second stage, in which public participation is also implemented. This second step is concluded with an application conference. The purpose and aim is to discuss the project, possible relevant concerns, utilisation and the consent for an inspection framework for a process accompanied monitoring for investigation of the possible effects on the marine environment[279]. Since the above mentioned re-enactment, an environmental compatibility inspection is now required under § 2a SeeAnlVO.The SeeAnlVO now recognises four grounds for refusal, namely the impediment to navigation areas, the safety and freedom of oceanic navigation, the threat to the marine environment or bird migrations[280]. The criteria for maritime safety which must ultimately be observed by responsible local waterways and navigation controllers are summarised in a contribution by Peter Ehlers, the Director of the BSH:• sufficient free seaboard between two areas;• dependence on the size and situation of shipping;• a minimum of 2 sm. clearance;• a distance of at least 2 sm. from other areas (roadsteads, restricted areas)• a distance between individual installations not greater than 1000 m,;• a distance from the traffic separation area of at least 2 sm. and a safety zone of 500 m;• no pylons.If one leaves out the threat to the marine environment as grounds for refusal then it is clear that here in principle there is an appropriate Federal approval method orientated to the safety of shipping. The obligation to dismantle the installations at the end of their useful lives, which is ensured by guarantees in the licensing practice, also serves maritime safety. The number and extent of the wind parks will be dictated by whether the technical, economic viability and financial problems are soluble. The total costs of the offshore installations are at least 70% higher than those of land installations and there is as yet no confirmation of their economic viability and competitive ability[281].The same risk assessment also applies to the approval procedure for wind energy plants within the 12 sm. wide coastal sea off the coasts of Mecklenburg-Vorpommern and Schleswig-Holstein in the Baltic Sea. The responsibility approval here lies with the States. The Federation is involved with the waters and the traffic routing to the north which are to be judged on the same principles as in the EEZ in questions of safety and freedom of the maritime traffic in applications for wind energy[282], while the State planning authority has to implement an environmental planning procedure. Germanische Lloyd published a guideline on the projection of technical risk factors for offshore wind parks in June 2002 so that the applicants and the approval authorities can acquaint themselves with the methodology, scope and quality of this subject[283].4.4. Economic Incentives for Environmentally Friendly Sea TrafficAn increasingly polarised field is developing around the seaports between the growing volume of cargo handling, combined on the one hand with an upsurge of the traffic yield and the interests of tourism in the coastal regions and on the other hand the interests of environmental protection. The steadily increasing transport volume of the shipping traffic mean increasing pollution from emission for the ports and their surroundings. Furthermore, environmental standards at international level are frequently less stringent than those at national level. This criticism of the environmental policy of the IMO was voiced by the Norwegian IMO delegates at the 37th Sitting of the Marine Environmental Protection Committee (MPEC)[284]. They noted that the IMO can in principle enforce the reduction of pollution from ships by decree of international regulations. The effectiveness of the IMO regulations is at present restricted. In the opinion of the delegates it takes too long in the IMO to reach an agreement on stricter rules and implement them. This is only valid if the necessity is founded on a scientific basis,1. the newer and stricter rules only apply to new vessels; existing vessels are permitted to go on emitting higher pollutant levels,2. there are at present no actual economic incentives for the shipping companies to invest in environmentally friendly vessels or to make the vessels already operating more environmentally friendly.The Norwegian delegates suggested economic incentives, such as discounts on the port charges, taxes and insurance premiums. Shipping companies which are at present refraining from investing in the environmentally friendly outfitting of their ships are favoured over those which apply such measures. Within the last few years however, a number of so called regional "Green Shipping Models" have been developed which favour a more ecological shipping operation with economic incentives. Bonus systems based on IMO Resolution A747 (18) already exist for tankers with separate ballast tanks and double hulls.In addition, the Dutch system of the “Green Award”[285] has proved itself internationally.The aim of the Green Award certification system is to promote the safe and environmentally friendly conduct of ships, crews and their management. The system was developed by the Green Award foundation in 1994 and set in operation the year after. Green Award is a dynamic system with annual evaluation and consideration of new developments. It should favour shipping companies for their environmentally friendly and safe ship operation on the basis of differential port charges and procedures.Bonus discounts for low emission vessels and punitive high risk surcharges for ships with high emission and the attendant competitive aspects can offer incentives for environmentally friendly sea traffic in this global market age. Economic incentive systems aim, for instance, to make environmental protection more attractive for ship owners, and particularly commercially neutral by differential port charges. A report introduced by the Bremen Institute for Maritime Traffic Economy and Logistics in January 2000[286] has however shown that up to now no incentive instruments have been introduced which are internationally transferable, applicable to all vessel types and which consider all the environmental criteria of a ship.4.4.1. Discounted Charges for SBT and Double Hulled Tanker in European PortsThe risk of oil spills from accidents is lower in tankers with separate ballast water tanks (segregated ballast water tanks, SBT) or double hulls but they limit the carrying capacity of the vessel. To compensate for this competitive disadvantage a discount of 17% on the port charges for SBT tankers was suggested by the IMO in Resolution A. 747 (18). The Ordinance (EU) No. 2978/94 of the Council of November 21st, 1994 introducing this regulation for ports in the EU was therefore made obligatory. The European ports have implemented and partly enlarged on this standard in their structure of port charges. The ports of Hamburg, Wilhelmshaven and Emden offer at present a 17 % reduction of the port charges for SBT tankers and 25 % for double hulled tankers. The ports of Antwerp and Rotterdam reduce the tonnage rated charges for SBT tankers by 17 %. In Brunsbüttel reductions amount to 20% for loaded SBT tankers and 25 % for the same tanker type calling at the port in ballast or empty.The reductions for double hulled tankers actually run from 27 % to 32 %. The Bremen ports subtract the volume of the separate water ballast tanks from the GRT reckoning for the vessel, which forms the basis for calculation of their port charges. The port of Nordenham has a similar procedure.4.4.2. Green AwardIn the port of Rotterdam double hulled tankers are granted no additional discounts. The Green Award certification system was developed in 1994 to reward the safe and environmentally friendly conduct of ships, crews and their management.[287] The system integrates existing quality and certification criteria such as ISO 9002, ISM etc. It was developed for tankers of more than 20,000 tdw. and as of 2001 also applies to bulk carriers of more than 50,000 tdw. The inclusion of container ships is currently being prepared.The certification of a ship is implemented by Green Award inspectors after application by the shipping company. The shipping companies must pay fees for both the certification and the annual inspections. It is thus possible for vessels to profit from reduced port charges and other incentives in different ports. Tankers receive for example a six percent reduction in port charges in the port of Rotterdam in the other Dutch ports of Vlissingen, Terneuzen and Dordrecht. There is a discount of five or three percent in some Portuguese ports. The six South African Portnet ports of Saldanha, Capetown, Mossel Bay, Port Elisabeth, East London and Durban and the British oil terminal Sullom Voe offer five percent reductions. Green Award ships pay only 93 % of the relevant port tariffs in 13 Spanish ports.The Green Award ships also profit from other advantages besides reduced port charges, these are offered by various waste disposal concerns, port tug companies or pilots. The waste disposal costs for example are reduced by 5 % by Eckelmann Cleaning Services for Green Award ships in Hamburg. Depending on the traffic area the ships can thus compensate for the costs of the Green Award certificate.In addition, the Green Award is of value as a mark of quality. Ships can show proof of their environmental and safety standards with the certificate.The procedures for inspections and certification are laid down comprehensively in the rules made available by the Green Award Foundation[288]. The system only applies at present to tankers of more than 20,000 tdw. It is planned to include other vessel types in future. Preparations are at present being made for bulk carriers of more than 50,000 tdw. The inspection and certification are based on a checklist and a point’s award system for fulfilling certain criteria. A maximum 236 points can currently be won for the fulfilment of the requirements for the crews and the management. As a minimum prerequisite for the Green Award this requires 125 points and 75 points are required in the technical section. By end of September 1999 104 tankers of more than 20,000 tdw were certified. This corresponds to 0.7 % of the entire world tanker fleet, based on carrying capacity.Analysis of the certified tankers shows that they are mainly vessels of Aframax size. Only four units have a carrying capacity of under 50,000 tdw. These numbers show at the same time the weakness of the Green Award system. A Green Award certified tanker (200,000 tdw) can for instance the save twelve times as much per call at Rotterdam compared with a small tanker of 20,000 tdw. It can of course be safely assumed that smaller vessels call more frequently at a port since these as a rule are used in the short distance runs. But even on the basis of a threefold call frequency for smaller ships the bigger ships still have a fourfold advantage. This difference can still not be compensated for by the due article charges nor by the annual charges which are 25 to 30 % lower for smaller ships.At present the Green Award system does not represent a sufficiently effective solution for the rather smaller ports in Mecklenburg-Vorpommern for the improvement of environmental conditions in navigation.4.4.3. Swedish System of Differential Waterways and Port ChargesWhile the Green Award covers almost all environmental criteria, the aim of the Swedish system is the reduction of emissions to air. The Swedish Maritime Administration, the Swedish Ship Owners Association and the Swedish Port and Warehousing Association reached an agreement in April 1996 to reduce the sulphur and nitrogen emission from ships by 75 % over a five year period. To accomplish this aim it was agreed to grant economic incentives on the base of differential waterways and port charges (fairway dues). The reduced charges should apply to measures in the reduction of the nitrogen emission and to the burning of low sulphur fuels in particular in ferries and other vessels which call frequently at Swedish ports.The waterway charges levied by the Swedish Maritime Administration are differentiated on environmental assessment and were introduced on January 1st, 1998. They consist of two elements, a standard discount for the use of fuels with a sulphur content of less than one per cent and a graded discount for the reduction of nitric oxide emission. While the costs can thus be lowered for low emission ships, other ships are put at a disadvantage by the overall higher rates.The differentiation of the waterway charges is based on each vessel being measured and charged on its GRT and its individual sulphur and nitrogen emission loaded. The Swedish Maritime Administration moreover refunds the waterway charges already paid over a period of five years on the installation of a catalysers. If the catalysers were installed before the year 2000, up to 40 % of the costs of the installation can be offset and after this date up to 30 %.The discounts for low sulphur fuel and for emission reduction can run to 50 % of the due waterway charges. About twenty Swedish ports offer additional discounts which also reward reduced nitrogen and sulphur emission. The ports however grant different rates of reduction for the different emission classifications, the port of Stockholm has for example increased the port charges if the nitrogen emission exceeds 12 g/kWh. Gothenburg offers a bonus for low emission ships.In addition to the State waterway charges, some 20 Swedish ports have adopted the option of granting discounts which reward reduced nitrogen and sulphur emissions into their scale of charges Every Swedish port is autonomous and can decide on the rates and port charges by its own estimates. Because of the different traffic structures in the different ports several discount alternatives for low emission ships[289] have developed[290].4.4.4. The Hamburg ModelHamburg has introduced a reduction in its port charges for environmentally friendly ships. The development of differential charges in Hamburg have in particular influenced the discounted charges for tankers with separate ballast water tanks (SBT) and double hulled tankers in European ports, the Green Award and the system of differentiated passage and port charges introduced in Sweden. The system is based on different incentive systems, like the Green Award and the bonus system for SBT and double hulled tankers. Since July 1st, 2001 its port charges have been lowered by 6 or 12 percent for ships meeting high standards of environmental certification, exhaust gas emission and paint coats. The Green Shipping project is initially restricted to 5 years. The environmental authority provides 750,000 Marks for the finance. The system therefore requires direct subsidies which require EU approval.Those who can show an environmental certificate to ISO 14.001 or the Green Award, the Dutch certificate as proof of an environmentally friendly and safe tanker, are granted a 6 percent reduction in charges. A ship using exclusively fuel with a sulphur content of less than 1.5 percent, undercutting the emission standards of the future Appendix VI of the International MARPOL Agreement for new marine engines by 15 percent or with a TBT- free paint coat, saves 12 percent of the port charges[291]. TBT (tributyltin) is an extremely toxic substance found in conventional ship paint. The bonus is granted once at every call and runs to a maximum of 12 percent. The minimum discount is 50 Marks.All conditions are based on certification systems already existing or easily provable environmental protection measures. An already existing incentive system such as the Green Award from Rotterdam will be used. Hamburg’s own certificate is refused. The system is simple and works without any great bureaucratic effort.The experience of Hamburg is without doubt positive: The size of the incentive reduction differs depending on vessel type and the number of the calls at Hamburg. The amount of necessary investment understandably also plays a role in the environmental protection measures. A larger container ship (35.000 GRT) therefore saves 754 to 1,508 Marks, a tanker (67,000 GRT) 1,199 to 2,398 marks, at every call. The minimum reduction of 50 Marks is in itself of benefit to small container and LCL freight ships, added up by frequent calls. The additional expense of a TBT- free paint coat can be fully compensated for by the Green Shipping discount as a report by Germanische Lloyd commissioned by the Environmental Authority shows[292].The transport of goods by ship is by and large environmentally friendly but the ships themselves are often not fitted out with up to date environmental equipment. Antiquated engines and the use of inferior fuels lead to considerable pollution in the air. Seagoing ships cause about 40 percent of the sulphur emissions from the traffic in Hamburg at present. TBT is a toxin contained in many ship paints which even in small quantities is already harming marine life. TBT can be found regularly in Hamburg waters and their sediments.The exceptionally keen international competition frequently hampers investment in environmental protection and safety on seagoing ships. In the development of technical standards as set by the IMO in international law as an obligation, the slowest member State all too often determines the speed. The IMO intends therefore with the foreseeable introduction of MARPOL Appendix VI to set an international limit of 4.5 % sulphur content in fuels and a regional limit of 1.5. %. In comparison, fuels with less than 0.2 % sulphur content are already stipulated nowadays for motor vehicles in Europe.In February 2000 the Environmental Authority in Hamburg hosted an international conference on the theme of economic incentive systems for environmentally friendly shipping traffic[293]. The discussion centred on how, with the current international standards, market protagonists could be motivated to ecological awareness. It goes without saying that the greater the number of the ports involved the more such a system will develop in effectiveness. Hamburg therefore is pursuing the aim to develop an internationally integrated system to promote environmentally friendly shipping designed around port charges. A close cooperation was first agreed with Bremen. An economic incentive instrument is also being developed there at present which should be tested in 2002 in a virtual trial phase.4.4.5. The Lübeck ModelApart from Hamburg, Lübeck is also going its own way in the field of environmentally friendly shipping. This Hanseatic city is reacting to particular problems of air pollution in the area of the Baltic Sea resort of Travemünde where several ferries frequently let their engines run simultaneously in the port during laying to in order to generate electricity. Here shipping contributes a share of 464 t. NOx emission per annum, approximately 76.1 % of the entire load. The share of SOx emission is 393 t. per annum, 94,3 % of the entire load [294]. These emissions have led to a project in the framework of the implementation of Agenda 21[295]. The reduction of the air pollutant emissions is a priority target of this project. Possible solutions are currently being examined, there appears to be agreement on a shoresides power supply for shipping. Results of investigations, in particular a legal appreciation of the obligation to use a shoresides power supply, are as yet non existent.4.4.6. Other Reductions in Port ChargesApart from the incentive systems already described there are other local solutions [296]:1. Passenger ships which offer regular public transport services enjoy a discount of 40 % on the port charges in Helsinki, if fuels with a sulphur content of under 1 % are used within the Finnish territorial waters.2. The port of Västeras plans to reduce its port charges by 50 % for ships equipped with a catalyser.3. The ports of Kaliningrad and Szczecin-Swinoujscie also offer a financial incentive for reduced air pollution.In addition there are the regional solutions, such as the "Safety Points System" of the US Coastguard, the "OMS Screener" of the Federal State Washington and the "Green Bonus System" in Australia.The EU Commission is preparing a recommendation for autumn 2002 to award a prize to ship owners, shipyards or port authorities which successfully promote or operate maritime traffic with low emissions (a so called "Clean Marine Award Scheme").It summary, it is clear that there is a number of more or less effective solutions for improvements in the environmental compatibility of shipping. However, all these systems are lacking a common basis with regard to the assessment criteria of environmental risks as well as the assessment criteria for the extra premium for high risk or bonus regulation in the many different dues and payments. Information on the ship, the crew or the management may be judged completely differently and this even in systems which pursue identical aims. Problems arise primarily with the "Green Award" in that only large vessels are addressed. For smaller ports this system cannot play any leading role at present. The Swedish system is aimed at the reduction of the exhaust fumes from vessels calling at Swedish ports and waterways (similar to a toll). A problem remains here, however, as a transfer of this system to other countries could fail because of the variability of the port charges and their composition.It would be most desirable from the point of view of the international maritime community therefore, if a general, internationally acceptable catalogue of criteria could be developed into the assessment of the "environmental performance" of a vessel. It requires impetus from the IMO at this point.In recognition of these difficulties, particularly the lack of suitable port charges as a control instrument, a recommendation comes out of the latest study from Bremen research facilities to use the pilotage and fairway taxes to promote "Quality Shipping" instead of the port charges[297]. The new recommendation is to build up the sovereign pilotage dues into a bonus system. The pilotage dues have a direct relationship to traffic safety and the protection of the coasts in any case and go beyond the local interests of the single ports. The bonus system grants the environmentally friendly ship discounts of up to 100 % in a points scheme if all available safety and environmental protection measures in the fields of shipping company management, ship’s equipment and ship operation are used or exhausted. The new dues should, ostensibly to dispel the initial fears of the pilots of loss of income, be levied as a ship related surcharge to pilotage dues. The complete system, which has not yet been discussed, should be suitable for an EU-wide or international application.5. Improvements in Maritime Emergency Management5.1 Initial Motion for a Central Emergency Management in the Bundestag and LandtagThe question of reorganisation of the maritime emergency and accident management has assumed different legislative bodies. As voiced in a motion by the CDU/CSU Faction in the German Bundestag of the 6th March 2001[298]:1. "The Federal Government is called upon to provide all legal and actual prerequisites for the formation of a regional headquarters for maritime safety and to present a corresponding draft bill to the German Bundestag as quickly as possible.2. All tasks listed in the assignment catalogue of the § 1 Maritime Registration Law are to be brought together in the regional headquarters for maritime safety, which is to be newly created. Furthermore, these tasks are to extend to include the coastal sea.3. In the event of a disaster all jurisdictions with a uniform leadership of Federation and State capabilities are to be brought together in an action centre within the regional headquarters for maritime safety ".In the legislative intent of the motion the following points were quoted as prerequisites to the implementation:1. "the amendment of the constitution to consolidate the current order of Federation and State assignments in the event of a disaster at sea;2. the presentation of a draft bill by the Federal Government with the aim of concentrating all responsibilities which have been shared up to the present in a regional headquarters in a Federal department with one person responsibility for decisions, according to the Institution the Duty Commander of the Federal Navy;3. the creation of the legal clarity to guarantee, if necessary, joint action with the Federal Navy in the event of a disaster at sea ".The motion of the CDU was refused essentially with the legislative intent on the recommendation of the Committee for Transport, Building and Housing[299], the content of the motion appeared to have been overtaken as the Federal Government has already realised a uniform leadership with the establishment of the emergency response unit.The efforts of the Landtag of Mecklenburg-Vorpommern regarding an amendment to the constitution in favour of a unified accident management are also significant[300]. The Landtag tabled the following motion in its 63rd Sitting on 28.06.2001[301]:The State Government is called upon together with the other four coastal States to a press for a Federal Council Initiative with the aim of bringing about a fundamental restructuring of the maritime safety concept in the Federal Republic of Germany through an amendment to the constitutional law. This restructuring requires the joint acknowledgement of Federal and State responsibilities at sea and can only be achieved through an amendment to the constitutional legal jurisdictional demarcation (Art. 87 Para. 1, 89 GG) or through standardisation of a new joint assignment of responsibilities (Art. 91 a Para. 1 No. 3 GG)[302].The Landtag of Mecklenburg-Vorpommern reiterated this position in the summer of 2002 when it approved the agreement on the establishment of the emergency response unit[303]. The efforts of the Landtag of Schleswig-Holstein are taking a similar course, as it concluded on the 26th January 2000 regarding the threatening situation in the issue of maritime safety that “necessary amendments to the constitution must not be a hindrance”, and that a first step towards a central coastguard command unit should be taken[304].In the view of Schleswig-Holstein a short term German Coastguard should meet the following criteria:1. unified command organisation with a command and response unit to be built on theeveryday organisations in the Coastguard Centre in Neustadt and Cuxhaven.2. ongoing analysis of the threatening situation at sea; assessment; presentation of risk prognoses.3. identification of a damage situation through the command and response unit and assumption of unit command in complex damage situations.4. recognition of the leadership of the command and response unit by the Federation.Apart from these parliamentary initiatives legal and navigation experts too have stated their views on this topic. The Grobecker Commission commented on the assignment of responsibilities at the time. In the view of the Commission a satellite to the various services would not obtain the requisite optimum effectiveness in coping with tasks.[305] This would be in the present situation be impaired by the plethora of responsible authorities at sea.Even more significant is the criticism on the existing maritime safety concept in the so called “analysis of weak points occasioned by the PALLAS disaster”[306]. In this analysis by the Disaster Research Institute of the Christian Albrechts University of Kiel, 21 weak points were identified during management of the dangerous situation. Apart from the direct avoidance of danger at the location of the accident these relate to access to the sovereign areas involved and the exchange of information between the persons involved in the accident management. Due to the present distribution of jurisdiction between Federation and States discord would be predictable among the bodies involved because the responsibility was shared very artificially in the unit charged with the defining the problem[307]. Clausen came up with the following analysis of weak points:“ Weak point 1 is the manner of the constitutional distribution of the maritime legal jurisdiction of the German coastal States among Federation and States: this has favoured a variety of ad-hoc regulations, of which each was founded in practice, but which altogether probably caused new institutional conflicts, they are at their most dangerous when disaster draws near”[308].Apart from the lack of coordination between the German and Danish authorities there were considerable failures between the German decision making committees. Important information was passed on late from the data centre in Cuxhaven which led to the tugs MELLUM and NEUWERK arriving at the scene 20 hours after fire was noticed on the distressed ship. An earlier arrival of auxiliary vessels at the scenes could have enabled towing efforts to have been made sooner. The rescue tug OCEANIC, which with its winch would have been deployed in the first instance for a successful tow, was ordered to go to the PALLAS too late. The use of helicopters at the scene was similarly uncoordinated. If these were needed, the request was frequently made too late.A further organisational weak point on the part of the German authorities was that of waiting too long for a salvage plan from the PALLAS shipping company.The shipping company made no productive contribution to saving the PALLAS during the disaster. While the ELG waited for a sensible rescue plan from the shipping company, tugs which were not suited to this task were sent out to the PALLAS. Similar criticism of the national accident management was voiced as follows in further investigations:1. “Independent expert commission on the PALLAS disaster ” under the Chairman Claus Grobecker,2. Expert report on the maritime legal questions arising from the PALLAS disaster, Prof. Dr. Doris König, CAU Kiel,3. Expert report “Legal judgement of maritime safety under special consideration of the interests of the State of Mecklenburg-Vorpommern”, Landtag Mecklenburg-Vorpommern, LT-Drs. 3/70.The lack of cooperation in controlling the damage at the PALLAS accident illustrates the need for the development of uniform organisational models for the application of regulations and accident management in the national maritime authority structure. An effective accident management i.e. the proper control of special situations at sea, requires the grouping of all the requisite capabilities and expertise under a uniform leadership. As can be seen, the jurisdictional limits not only stretch to maritime damage situations as such, in view of the tasks arising from the grounding of an oil tanker or a passenger ship, but also to administrational tasks arising from a damage situation, such as fighting a fire or an oil spill at sea (in the coastal sea). A decision of the Federal Administrative Court[309] from 1990 underlines the conflict between the distribution of federal tasks and the control of maritime damage. The court had to address the question of which jurisdiction the cleanup of an oil spill in German sovereign territory falls under[310]. The result was that the respondent country concerned with the disposal of the oil pollution in the waterways in question – self imputed, the causation turned out to be from shipping – was not seen as a task for the maritime police and therefore not in the jurisdictional remit of the Federation.The court handed down this ruling as a direct consequence of the constitutional distribution of responsibilities. If the pollutant had mixed with the water the cleanup would no longer have been a measure concerning transportation.The obvious strict separation of sovereign administration tasks in the jurisdiction too demonstrates the need for efficient administration which must do justice to the ever growing and diversifying administration tasks. The (in actuality) well-founded desire for an effective accident management assumes constitutional legal meaning in relation to interdisciplinary administrative cooperation and the principle of efficient administrative conduct.Administrative efficiency plays a not insignificant role in the legal discussion on new organisational models. From the point of view of effective administrative conduct, which takes material form through monocratic leadership particularly in the case of disasters at sea[311], comes the question of overcoming such jurisdictional limitations between Federation and States.The solution to the problem of a uniform accident management must be measured by the demands here of the parliamentarians and the constitutional legal situation. As is well known, after long consultations in the Project Group for the Prevention of Maritime Emergencies, in which representatives of the Federal Government and the coastal States have been examining all aspects of maritime safety for concrete implementation possibilities since the summer of 2000, the establishment of an emergency response unit is now immediately imminent. The coastal States are at present being called upon to declare promptly their readiness to sign the Federation-States Agreement on the establishment of an emergency response unit. In the following passages the efforts regarding the contents of an administrative agreement are described and assessed.5.2. Emergency Response Unit as a Result of the Project Group for the Prevention of Maritime EmergenciesThe Federal Government appointed the Project Group for the Prevention of Maritime Emergencies after completion of the work on the Grobecker Commission with the aim of implementing the recommendations of that Commission[312]. In the framework of the project work the partial project team 5 (structure) dealt with the assessment of the recommendations for the emergency response unit. The result of the project teamwork is the establishment of a so called emergency response unit under the one leadership. Parties to the agreement on the establishment of the unit are the Federal Government, represented by the BMVBW and the five North German coastal States. In connection with this, the Undersecretary of the BMVBW, Rolf Nagel, spoke of a "decisive improvement in emergency management". In his opinion this emergency response unit could assign tasks and establish detail sections in all available federal and regional authorities[313]. The Governments of the coastal States[314] signed the Agreement in June 2002 in a procedure of circulars. The ratification – where necessary – by the Landtags[315] is to follow. The emergency response unit will be ready for duty in autumn 2002; a vanguard unit is already at work.The development and implementation of a joint accident management in the North and Baltic Seas represents for Federation and coastal States a joint unit under the title “emergency response unit” with its headquarters in Cuxhaven. In the everyday organisation this will consist of a jurisdictional centre and a maritime situation centre. In a response situation these centres will form the basis for a so called accident unit.5.2.1. Jurisdictional CentreThe jurisdictional centre should primarily form the everyday operation of the emergency response unit. This is defined by:1. The command of the situation;2. the projection and coordination of the fundamentals for the implementation of preventive and control measures, the work in the emergency response unit and accident unit;3. the implementation of alarm planning and preparation of response plans;4. the assessment of complex damage situations and damage threatening or damaging incidents at sea;5. the planning, implementation and assessment of initial and further training measures;6. the registration of technical developments for damage prevention and control7. the implementation of public work.5.2.2. Maritime Situation CentreThe Maritime Jurisdictional Centre should be a joint establishment occupied equally by the waterways police of the States and the Waterways and Maritime Administration of the Federation. All information on circumstances relevant to the control of a complex damage situation should be gathered, processed and assessed in the 24 hour service [316]. Like the Jurisdictional Centre the maritime situation centre will in particular be staffed by persons from the Federation and the coastal States in accordance with § 9 of the Agreement between the Federation and the coastal States on the control of marine pollution.5.2.3. Accident Unit /Leadership and Powers of Intervention in Response SituationsIn the case of a complex damage situation the jurisdiction devolves on the Accident Unit.This applies to complex damage situations:1. In areas where the Federal Republic of Germany has to fulfil obligations to accident prevention by reason of its international agreements outside its EEZ;2. in the EEZ of the Federal Republic of Germany;3. in the sea lanes defined in § 1 Para. 2 S. 1 of the Federal Waterways Legislation;4. in the navigation lanes of the Elbe (with the exception of the Delegation area of (Hamburg), North Baltic Sea Canal, Trave, Warnow and Weser under the navigation lanes ordinance and Ems under. § 1, the regulation for the introduction of the navigation ordinance on the Ems river mouth.The Accident Unit is subdivided into different response areas. These are occupied by employees of the jurisdictional centre with the maritime situation centre and reinforced on the required scale by the Federation or the States on request of the leader of the emergency response unit. The following response areas are scheduled:1. response (ship fire fighting, pollutant accident control, rescue, care of the injured, rescue, towing measures);2. leadership and facilities (information and communication vehicles and equipment);3. public work;4. central services (law, household/supply staff/central service).In the case of an immediately imminent complex damage situation the leader of the Accident Unit can take over the response on his own prerogative. It is his duty to take command of the whole leadership of the response detail and with it no discretionary limitation if a complex damage situation should arise or if the coastal State concerned or the responsible waterways and navigation authority in his area of responsibility petitions him[317]. Conversely, the right of the accident commander carries with it, also without the consent and against the wishes of the coastal State concerned, the leadership of the response detail and the State assignment too, e.g. taking over the combating of toxic substances in the waters.If a request does not concern a complex damage situation, then the measures of the leader of the emergency response unit should apply in accordance with the Federation-States Agreement concerning the emergency response unit but rather as official assistance. If on the other the measures fall under this Agreement, then the accident commander should view this as a State assignment. In the view of the writer the Federation-States Agreement in this case relates to the loan of an official.By taking over in his own right the leadership of the response detail devolves on the accident commander. The parties to the Agreement, including the coastal States, must under § 8, Para. 3 of the Agreement make their emergency response services and facilities available for deployment by the leader of the emergency response unit. He must explain the plan for control of the complex damage situation and should assign to "responsible offices" the "appropriatetasks". Since he can only outline the “aims”, the "responsible offices" decide on the ways and means to achieve the aims under their own responsibility with the means at their disposal. This procedure is described as "assignment tactics".It should be ensured ultimately that the services of Federation and States remain free in the choice of means. The authority to issue directives is thus confined to the required aims and if need be, the priorities and strategic procedure. On the other hand the signatories declare in § 9 Para. 3 that the accident commander shall be allowed "the most far reaching technical independence in the case of a response action".Conflicts are predictable in the material damage situation because the agreement avoids the use of such terms as "authority to instruct" or "right of intervention" in this place. Nevertheless it must be assumed that actual rights of intervention are the aim of the agreement in order to avoid jurisdictional conflict. Without far reaching authority to instruct or rights of intervention in all available capacities the position of the accident commander would become partially “standby”.A further uncertainty here lies in the question of whether all the services of the Federation, i.e. the Federal Maritime Frontier Guard, the Maritime Customs and the Fisheries Authority are actually included in this agreement. The agreement in fact names as a partner "the Federal Government, represented by the BMVBW", so that one might include not only the deployable means of the BMVBW (e.g. the emergency tugs and multi-purpose ships) but also themeans of the entire Federal Government[318]. The services of the BMI, BMF and BML however are not expressly named. The services of the Federal Maritime Frontier Guard, the Maritime Customs and the Fisheries Authority are certainly not part of the everyday operation of the “jurisdictional centre” since they maintain their main reporting centres in Cuxhaven and Neustadt! Neither are the Federal Minister of the Interior, the Federal Minister of the Treasury and the Minister for Agriculture signatories to the Agreement. It is therefore in the opinion of German North Sea Coast Protection Association (SDN) incomprehensible that the response vessels of the Federal Maritime Frontier Guard and the Maritime Customs should not be included in this organisation[319]. Clarification would be the ideal – e.g. in the context of service regulations, yet to be written, and an order of business – that the “authority to instruct” of the leader of the emergency response unit is also valid for these services of the Federation.With regard to the status of the accident commander as an official of the Federation, questions arise over the legal basis of his projected jurisdiction in the area of original State responsibilities. In particular, because of the lack of standardised leadership instruments such as instructions or the right of intervention in other authorities, the scope of the jurisdiction of the accident commander remains unclear at this point. The preceding expert report already confirmed the jurisdiction of the accident commander, granting non-binding “recommendations for action”. The question remains therefore of the authority to instruct of the leader of the emergency response unit going beyond the advisory nature for State facilities. In any event, no clarification of these illustrated “weak points” in the Agreement on “a board of trustees for maritime emergency precautions” under Article 11 of the Agreement should be expected either, as decisions in this body are only made conjointly. This state of affairs would indicate that the entire legal construction of the emergency response unit is subject to wide legal criticism.5.2.4. Legal Critique on the Federation-States Agreement on an Emergency ResponseUnitThe administration agreement mentions in § 5 Para. 2 a “fulfilment of tasks under contract to the States”. Apart from the federal administration of assignments (Article 85 of the Constitution) however, this acknowledges no implementation of State legislation through the Federation because the Federation should be "commissioned" by the States: this would also apply to tasks to be carried out by the State in the context of maritime damage control, such as general risk prevention or combating pollution of the waters. The desired agreement between Federation and States therefore contributes neither to putting in concrete terms the legal position of the emergency response unit as a cooperative body nor to lending it a legally protected foundation.As an ideal cooperation model the arrangement of the Federation/States emergency response unit the model of the State assignment administration, secondment or loan of officials could be considered, should its legal stipulations be fulfilled. These should be more closely examined for their permissibility in general and in the area of maritime administration of assignments.5.2.4.1. Implementation of State Legislation through the Federation?The wording of § 5 Para. 2 of the Agreement [320] refers initially to the wishes of the signatories, should the accident commander act for the State. The Federal Constitutional Court however states unequivocally that officials of the Federation shall be responsible for the sovereign exercise of State legislation[321]. In Volume 21 the constitutional judges had again deliberated on the question of whether the Federation may implement State laws. They ruled that such action was not permissible and attested to the Federation that the exercise of the Hessen Waterways Legislation by the Federal Waterways Authorities contravened the constitutionally guaranteed State responsibility for administration i.e. a breach of Articles 30 and 83 GG[322].The foundation for this argument is the limitation of the legislative and administrative jurisdiction of the Federation, already defined in Volume 15, over waterways as traffic routes. Since the distinction is made in Article 74 No. 21 GG between the scope of jurisdiction of “waterways” and the scope of jurisdiction of “water management” of all waters under Article 75 No.4 GG, only the function of the waterways as traffic routes comes under consideration.[323] In 1991 the Federal Constitutional Court referred to the above mentioned ruling of the constitutional judges and maintained that the task of policing shipping by the Federation should end where it no longer concerns demands on the ships and their operation to prevent threats to the purity of the waters. Should the waters be polluted, it is then the responsibility of the respective States to intervene, police the waters and take the appropriate sovereign measures to dispose of the pollution. The responsibility of the Federation to police the waters does not extend to “powers of factual connection” founded on the administrative jurisdiction of the Federation for water management or water policing tasks. An effective execution of the water policing tasks of the Federation does not depend on the Federation also being responsible for policing regulations on the disposal of water pollution caused by shipping[324]. An application of State legislation by the Federation, represented here by the leader of the emergency response unit does not therefore come under consideration. In this respect § 5 Para. 2 of the Agreement cannot be interpreted as “state assignment administration”.5.2.4.2. Cooperation Between AuthoritiesAs a second legal construction the possibility remains to qualify the activities of the accident commander in the area of the original State assignments legally as cooperation between authorities. Cooperation between authorities is the activity of one authority which in the context of its responsibility undertakes at the request of another authority in the same or other civil legal capacity the support of the requesting authority in the performance of its public tasks[325]. This is laid down in Article 35 GG. Cooperation between authorities is then an appropriate cooperation instrument if an original performance on legal or actual grounds of a task is either not feasible or can only be performed with inordinate effort. Article 35 Para. 1 GG is given concrete form through the legislations on administrative procedure of the States and the Federation. The basis for further implementation is the legislation on administrative procedure of the Federation.If, and to what extent cooperation between authorities can be applied to cooperation between Federation and State in the framework of coping with maritime tasks in the coastal sea, would require discussion on the individual aspects of cooperation between authorities.Prerequisites for Cooperation Between AuthoritiesIn the first instance the Federal emergency response unit must be an authority in the sense of Article 35 Para. 1 GG, § 4 Para. 1 VwVfG. This is indisputably the case. Furthermore, § 4 Para. 2 No. 2 VwVfG excludes the offer of cooperation between authorities insofar as the assistance consists of activities devolving on the requested authority as its own task. Own tasks means in this sense, if the activity in question does not fall within the area of responsibility of the authority being requested (which is also a prerequisite for cooperation between authorities), but rather bases on a law, statutory order, rule or an administrative regulation relating to the activity in question[326]. A prerequisite for a request for cooperation between authorities can be thus defined: the body providing the help only has authority to perform unfamiliar tasks, namely those of the requesting authority.Cooperation from the emergency response unit would therefore have to be confined to activities which are incumbent on the maritime authorities of the coastal States and in particular on the Waterways Protection Police. Apart from the general prevention of danger this applies especially to the combating of pollution. For the delineation between Federation and State tasks in the area of the coastal sea the statement of the Federal Constitutional Court in Volume15 must be consulted. This rules that the administrative jurisdiction of the Federation cannot extend farther than its legislative jurisdiction; this may well be the absolute limit of administrative jurisdiction[327]. The accident commander can therefore take action within the context of cooperation between authorities, apart from the general prevention of danger related to the combating of pollution, provided this involves a task assigned by the Staterelating to the waters and not enforcement or the policing of navigation. This would in any case be the rule as soon as the spilled pollutant has mixed with the sea water.In connection with the requirements for maritime administration cooperation, the question of an obligation for claims to cooperation between authorities would appear to need discussion. Should this not evolve on the State, then the deployment of an emergency response unit as a requested (federal) body, regarding the observation of State assignments, would be up to the discretion of the requesting (State) authority. Such a discretion would contradict the rights of the accident commander as standardised in § 9, Para. 1 of the Agreement to act at his own discretion.Schmidt however, was already in § 5, Para. 1 VwVfG unable to attest to the discretion of the authority performing the main procedure, whether it wishes to claim cooperation between authorities or not[328]. Ule/Laubinger accordingly recognised correctly that an eventual obligation of the authority performing the main procedure could result from the valid administrative procedure regulation of the requesting authority[329]. The obligation to claims on assistance from another authority can therefore arise in individual cases if the authority performing the main procedure cannot perform this according to procedure without cooperation between authorities, e.g. contravenes administrative procedure regulations[330]. This will then be the case in the event of maritime damage situations, if the State concerned can only take inadequate damage control measures for actual or legal reasons.In the wake of this observation the question begs as to whether the "right of discretionary action" standardised in § 9, Para. 1, of the Agreement on could extend to the Federation. This would render the respective request for cooperation between authorities superfluous and transfer the decision regarding the "whether" to the responsibility the Federation. The Federal emergency response unit could then be responsible for the decision regarding the support of the State in the State tasks arising in the coastal sea area.Cooperation between authorities can in principle however only be granted on request, § 4 Abs. 1 VwVfG. It is not spontaneously possible[331]. If one interprets the cooperation mentioned in § 9 Para. 1 as cooperation between authorities, then the right of discretionary action would certainly not be permissible without a request.The legal requirement to petition could nevertheless also take into account a so called "anticipated request". This anticipated request would occur if the requesting authority tenders a catalogue of criteria in advance of an eventual concrete request for the potential assistance, after which the claim should be addressed, i.e. a request is agreed on, or in certain cases be agreed to before the risk materialises. Such an anticipated request could be implemented for example by an agreement between the responsible regional maritime authorities and the emergency response unit in which, like the ELG Agreement[332], a catalogue of criteria for cooperation between authorities would be established.In order to be able to judge the legal permissibility of this "anticipated request" by fixed criteria one must go back to the constitutional legal foundations of the institution of secondment, and in particular to the precept of the distribution of powers. The question in particular could therefore be considered decisive as to whether an "anticipated request" for clearly defined individual cases would do justice to the requirements of the vertical distribution of powers principle. The decision on this legal question could however be debatable if the cooperation between authorities is regarded as a cooperation instrument for other reasons than cooperation between the maritime services.Contents and limit of Cooperation Between Authorities of the emergency response unitAs the detailed explanations of cooperation between authorities have already made clear, this can only be auxiliary assistance. This essential feature illustrates its tight limits in the narrow fringe of federal administrative cooperation. It is therefore worth elucidating exactly where the bounds of the cooperation in individual cases have to be stretched and how much proximity to cooperation a (federal) emergency response unit can ultimately offer.At present about 30 ships are at the disposal of the Federation and the States for oil spill and pollutant control, pollution confinement, lifting and separation of oil. In addition, lighteringsystems, oil corralling, oil lifting equipment and high slung cross-country vehicles for the transport of personnel and equipment in difficult wet terrain, high pressure cleaners are available for cleaning banks and initial response containers with protective clothing and hand tools are available for use by personnel. Furthermore, air surveillance by the Federation can be called on to pinpoint illegal oil spills at sea as an aid to combating oil pollution[333]. The Federation (in particular the WSV and the Federal Armed Forces) operates the majority of this pollution control equipment. In the case of cooperation between authorities in favour of the States this equipment and the operators can be deployed in cases of State assigned pollution control. It would help initially to establish to what extent such material and personnel support can be counted on as supplementary help in the context of § 4, Para. 1 VwVfG. As explained, the additional function illustrates two features in particular:1. the support may only involve partial elements of the administrative procedure;2. these partial elements must not represent any independence in the jurisdictional scope of the petitioned authority, i.e. they are regarded only as outside interests.In the context of pollution control in cooperation between authorities of the Federation the criterion of the supporting partial element is then taken into account if, apart from the personnel and material means of the State, such supporting administrative tasks of the Federation are also acknowledged. It should be taken into account with regard to pollution control that in the deployment of pollution combating equipment, apart from the collection of the pollutant there is also the matter of secondary transport as well as the disposal of the pollutants, which must also be classed as administrative measures. Such tasks can regularly be observed by the administrative bodies of the States. The share in the use of federal funds for the pollutant collection at the polluted site can thus be relativised. This represents at the same time acknowledgement of an outside assignment by which the second mentioned criterion of the additional function of the cooperation between authorities can also be taken into account. Against this background cooperation between authorities needs to be judged in the individual case by Federal powers. Although only approximate standards can be developed, especially against the background of the variety of accident scenarios, the case for supplementary assistance as a prerequisite forcooperation between authorities should be made by the concerted deployment of the technical means of Federation and State.The case for auxiliary assistance can however be prejudiced by the leadership structure of the Emergency Response Unit. As already explained, the connection of a monocratic structure of the emergency response unit with the PALLAS accident has been mentioned many times. The Grobecker Report, the weak point analysis of Clausen and also the "Maritime Emergency Precautions" project team suggest this as a solution to the coordination problems between the authorities. The cooperation instrument of the monocratic leadership structure thus earns special merit in this work. This means of leadership is also to be found in the administrative agreement[334] and should be examined more closely regarding the features and limits of cooperation between authorities.With regard to the constitutional legal limits of vertical administration cooperation, monocratic leadership structures must at all events be looked at more critically than the purely material and personnel support of the States in the area of pollution control. This applies particularly to the auxiliary character of cooperation between authorities. Cooperation between authorities can never be more than auxiliary assistance. The requested action can only be a component of thewhole procedure of outside aid to the requested authority[335]. This means for example that the cooperation between authorities relationship between authorities is dropped if the handling of the entire procedure transfers completely to the supporting authority. Should the main emphasis of fulfilling the assignment not lie with the authority performing the main procedures then no legitimate cooperation between authorities can follow. In particular, a cooperation between authorities relationship cannot then exist if the requesting authority formally remains the principle in the procedure but its activity is confined to assigning the broad and generally regarded guidelines for the handling of the official action through the requested authority and if it actually outwardly appears to be the procedure of the authority performing the main procedure but is principally actioned by the requested authority [336]. Should the requested authority only contribute to a part of the main procedure, then the requested official action prevails in the context of cooperation between authorities.Cooperation between authorities thus demonstrates that it cannot under any circumstance justify the takeover of a complete procedure or essential parts thereof. In particular, there is a contravention of the auxiliary function of the cooperation between authorities if a priority is shelved to the detriment of the requesting authority, if only temporally, in the sense of a loss of influence on the essential progress of the procedure[337].The right of the Emergency Response Unit to sole leadership of the task force has to be judged on these constitutional legal barriers to cooperation between authorities. A clear violation of the auxiliary function of the cooperation between authorities then has at all events to be attributed to the Emergency Response Unit if it is working within the scope of State jurisdiction (e.g. in the area of the pollution control) and leaves the State no room for movement, particularly in discretionary decisions. In this case it would be an unjustified contradiction of the decision of the legislator to establish separate fields of administration. A possible cooperation between authorities of the (Federal) Emergency Response Unit must therefore in the case of uniform leadership leave the State its own room for movement in matters of administrative procedure. Exactly that would not be in the interest of cooperation between authorities. Therefore, ultimate responsibility with regard to decisive procedural steps is not compatible with the constitutional barriers incumbent on cooperation between authorities. The principle of efficient administrative action cannot be appropriate to cooperation between authorities in cases of accident management at sea. The emergency response unit therefore fails as a model for cooperation between authorities.5.2.4.3. SecondmentSecondment is worth considering as an extra legal instrument for cooperation between responsible maritime authorities of Federation and State. There is an indication in the legal intent of the administrative agreement that in administrative cooperation it would not be a case of the constitutional legally inadmissible mixed administration but rather one of a constitutionally legal secondment. The coastal States could make use of the leader of the emergency response unit carry out their tasks. Whether the agreement as such can be regarded as legally in order still requires clarification. The reference to this legal institution in the legal intent of the administration agreement changes nothing in the legal nature. This merely results from the wording of the agreement in question.Secondment is given no express appreciation in the constitution. Only Article 96 Para. 5 GG mentions exercise of the federal jurisdiction by the States. In general opinion the regulations for criminal proceedings under Article 26 Para. 1 GG (§ § 80, 80a StGB) and state protection (§ § 81-101a StGB) construes a secondment for State Court officials to the Federation[338]. It can be found in detail in legislative regulations[339] and in established case law, especially that of the Federal Constitutional Court [340].However, in the opinion of this expert, whether the cooperation model of secondment from the aspect of distribution of tasks at sea can achieve the desired administrative effectiveness, and especially a lasting standard in the undertaking of tasks, depends through its legal nature on five points of view for deliberation as follows:1. Secondment does not appear from its principle to be a prompt source of assistance but rather cooperation in the long term.2. The authority to instruct of seconded officials in the form of the accident commander at the expense of the lender (State) would have no constitutional legal basis.3. The seconded body (emergency response unit) cannot “serve two masters” i.e. exercise two jurisdictions.4. The (Federal) emergency response unit would have no “discretionary rights” in the assignment sphere of the State. Only the State can decide whether the emergency response unit as a loaned unit should act on behalf of the State.5. A (Federal) accident commander on land would have very little opportunity for influence, particularly regarding jurisdiction over ultimate decisions.Duration of Secondment in the Event of AccidentsIn view of the duration of a damage control measure at sea, the suitability of the legal institution of secondment as a cooperation instrument seems worthy of discussion. Assuming the fact that the main emphasis of sovereign tasks at sea is acknowledged by administrative bodies of the Federation (Articles 87 and 89 GG), a long term occupancy of an emergency response unit as a federal body in a State in the capacity of a loaned unit makes no effective contribution to the safety concept. In this capacity a secondment would then only be able to contribute to improvements in maritime damage control if this was agreed on for the duration of the emergency only. Whether this (restricted) time period for damage control satisfies the constitutionally legal principles of the legal institution of secondment, or whether a short term cooperation only corresponds to the legal intent of secondment, is food for discussion.A secondment from the Federation will confine itself initially to the control of a maritime damage situation in the area of the coastal sea or the inner waters since the main task of the States is to combat maritime damage situations involving the introduction of toxic substances into the waters. As already mentioned, combating water pollutions is the original task of the State[341]. The duration of such measures depends on various factors. Wind conditions, the amount of spilled pollutant and currents all play an important role in the parameters of pollution control. Since the emergency response unit should however only be responsible in the case of so called complex damage situations it may be assumed that a pollution control response such as in thecase of the "PALLAS" will as a rule take over one week. The combating of lesser damage situations will not call for the services of the emergency response unit.The Federal Constitutional Court has not committed itself in its process on the issue of the duration of secondment. It only states that the secondment “it is not limited to one example of assistance in isolated cases, but is rather the assumption of an entire sphere of assignments due to a general regulation”[342]. Eichhorn discounts that secondment could only involve long term cooperation from which moreover the extensive fulfilment of tasks would result[343]. Whether the statement of the Federal Constitutional Court is to be interpreted that a temporal condition attaches to secondment seems however extremely doubtful. The constitutional judges only rule on the desired extensive material perception of the seconded body. As a result of the explanation of the Federal Constitutional Court there is a criterion, to separate secondment from cooperation between authorities. No temporal factor was ruled on in the decision. The duration of the cooperation cannot therefore be an argument for or against secondment. A distinctive feature is the material reach of the secondment. It refers to the assumption of an entire area of tasks. It may also be conceivable that it only lasts for a short time[344]. The criterion is thus met.Rights of Instruction of the (Federal) Accident CommanderThe proper control of complex damage situations requires the grouping of all required expertise from a tactical leadership view under uniform leadership. Lack of hierarchical order structures in such situations impairs the effective execution of tasks. The ultimate decision authority of an emergency response unit in the context of damage control must therefore fall to the accident commander from the policing aspect. Consultative or consensual requirements of other administrators contradict an effective uniform leadership perception. The Federal Constitutional Court however attaches the constitutional legal permissibility of secondment exactly tosuch rights of the borrower[345] in the case under consideration, thus a right of instruction for the (federal) emergency response unit. Volume 63 states: "The institution of so called secondment is distinguished by the fact that the official of a legislator is assigned and authorised to undertake the assignment sphere of another legislator. The seconded official works as an official of the borrower to whose instructions, measures and decisions he is subject".A right of instruction can be of a service and a technical nature. Service instructions relate to the secondment powers of the borrowed official. They are based on the general duty of officials to obey or the instructional obligations of labour rights[346]. Insofar as the borrowed official is not institutionally integrated in the borrowing legislation and secondment is restricted to a functional connection, the service right of instruction can remain with the lender, in this case the emergency response unit and its legislator. The decisive technical right of instruction must however also in the case of the purely functional incorporation with the borrowing legislation in this case remain with the State. An allocation of the activities or the declarations of willingness to the original administrator (here the State) would not be acceptable without a technical right of instruction since otherwise there could be a responsibility for activities which could not be controllable the part of the borrower. The technical right of instruction cannot therefore agree with the Federal Constitutional Court in the context of secondment of the borrowed body (emergency response unit). It devolves on the borrower, ergo the State. Therefore, one of the fundamental conditions of monocratic leadership structure, the extensive authority to issue directives, cannot be realized through the legal institution of secondment.No Dual Activities in Secondment SituationsA further hurdle to secondment which has already resulted from the principle of vertical distribution of powers is the so called ban on dual activities. The right to exercise authority of the seconded body is bound up with the requirement to give up its (original) powers. Both the principle of division of powers and the practice of civil service law preclude dual activities. Thus in the case of dual activities seconded body must have basically two superiors.This contradicts the tenets of civil service law. A civil servant cannot fundamentally serve under two superiors[347]. A civil servant or an employee in public service can as a rule only serve under one superior. Basic legal consistency and clarity also preclude a double function in the exercise of jurisdiction.Discretionary Rights of Intervention of the Emergency Response Unit?One of the central requirements for the unified control of a damage situation is the so called “discretionary rights of intervention” of the Emergency Response Unit in the event of a complex damage situation. Under the Agreement the leader of the Emergency Response Unit should have the right to take over the management of damage control himself over the responsible authorities or offices of the Federation or the coastal States[348]. Such a takeover of authority would be decided by the borrowing administrator (here presumably the State) whether it serves to fulfil the original assignment of a federal authority in the way of the secondment. The Federal Constitutional Court however assumes in its leading decision on secondment the right of the lender regarding the “whether” of the transfer of assignment. It is characteristic of secondment, “that the official(s) of a legislator is authorised and commissioned to carry out an assignment for another legislator.”[349] An assignment can however only come from a principal and not from the assignee itself. This literal construction is supported by the constitutional principles already mentioned, by the principle of the federal maintenance of responsibility and the tenet of the self assumption of national duties. This also precludes any such imposition of will of the right to instruct, already defined, of the borrowing legislator. An unintentional secondment could be reversed with immediate effect. The exercise of right of intervention by the Federal Emergency Response Unit can therefore cannot be supported by the cooperation model of secondment.Other Possibilities for Federal Influence, in Particular Final Decision JurisdictionThe chief task of an Emergency Response Unit should clearly be the management of complex damage situations at sea with the personnel and material means of Federation and State. This management depends for its effectiveness on its jurisdiction over decisions. As has already been established, a (Federal) Emergency Response Unit could not assume the right to instruct over the State insofar as the fulfilment of original State assignments is concerned. Whether far reaching jurisdiction over decisions of a borrowed federal body in the sphere of State legislation of the legal institution of secondment would be valid, could at least be classed as doubtful in constitutional law. In the leading decision on secondment voiced by the Federal Constitutional Court[350] the fulfilment of business management tasks by an insurance firm. The Federal Minister for the Economy construed this business management in his opinion on the particulars of case to Federal Constitutional Court as a narrowly transcribed assignment and assistance function. All essential future decisions would made by the original responsible legislator[351]. The framework of the jurisdiction over decisions however requires no further discussion. As the lender still has the right to instruct, decisions can be reversed, therefore limiting the scope of decision of the loaned body. This too precludes the installation of the legal institution of secondment in the sphere of maritime safety.5.2.4.4. Résumé[352]In conclusion, in the view of this expert, it would appear that secondment is not a suitable instrument for the improvement of administrative cooperation in the maritime authorities. The essential requirements for a unified effective accident management, such as right of instruction and intervention or prerogative decision of the Emergency Response Unit cannot be met through the legal institution of secondment. The reason for this is rooted in the strict constitutional legal conditions of vertical administrative cooperation. In the sphere of cooperation between a (Federal) Emergency Response Unit and the State authorities, cooperation between authorities too can only meet the need for cooperation to a certain extent. This applies in particular to mutual personnel and material support. Cooperation between authorities too appears to be unsuitable as a cooperation model, especially from the aspect of effectiveness, for monocratic leadership structure of the Emergency Response Unit as far as its claim to leadership over State facilities is concerned. Here the need for cooperation exceeds the constitutional legal tenet of exercising sovereign jurisdiction. Cooperation between authorities cannot therefore be viewed in general as a suitable cooperation model for maritime tasks.These foregoing deliberations illustrate that neither cooperation between authorities norsecondment can achieve the measure of cooperation sought after in the desired administrativeagreement. Administrative cooperation between Federation and State, as described, is subject to strict constitutional legal limits. Amendments to the jurisdictional order of the Constitution have already been recommended in the main report (Recommendation No. 1)[353].5.2.5. Federation–States Agreement on Combating Marine PollutionIn addition to the agreement on establishing the emergency response unit an agreement on the combating of marine pollution was concluded at the same time by the same parties[354], which replaces the older Federation–States Agreement [355] (ELG Agreement = management team). This Agreement regulates the preparation and execution of general measures for combating pollution and represents a central point for coastal States for emergency response unit and a coordinating committee on pollutant accident prevention.The cost factor is important. Federation and States carry the costs for the acquisition of all vehicles, equipment and personnel. For joint combating measures of the emergency response unit the old key applies:Federation 50,0 %Bremen 2,5 %Hamburg 6,0 %Mecklenburg-Vorpommern 8,5 %Niedersachsen 18,0 %Schleswig-Holstein 15,0 %.For the costs to be shared only between coastal States[356] the share of the respective States isdoubled. It should be noted that the Federation carries the high costs for the establishment ofthe emergency response unit and the acquisition of equipment for combating pollution on the high seas, while the States confine themselves for the main part to the costs for the deployed personnel and the acquisition and maintenance of equipment for their sphere of responsibility inside the 12 sm. Zone.5.3. Emergency Towing PlanFor the implementation of the Emergency Towing Plan in The Baltic Sea, with a desired intervention response time of 2 hours for some 500 km. length of German Baltic Sea coast, two extra chartered emergency tugs have been stationed in the Baltic Sea since November 2001, the “BÜLK” (40 t. bollard pull) in Kiel and the “FAIRPLAY 26” (67 t.) in Warnemünde. A “Boarding Team” with an officer and three marine engineers has been on standby for emergency response to ships in distress since November at the Warnemünde station. The multi-purpose ship "SCHARHÖRN" with an improved towing capacity and modified 40t. bollard pull was already available. Another port tug is to be stationed in future at Usedom and there is a new multi-purpose ship for combating pollution and duties in the planning phase. In the final stage 5 tugs will be on standby on the German Baltic Sea coast.For the North Sea the 30 years old but well proven tug "OCEANIC" has already signed an extended contract with the option of another extension by tender until October 2002. The chartering includes the provision of a four man "boarding team".A component of this tender is the prerequisite that the ship should carry the Federal flag and be entered in the German register. In addition to this the multi-purpose ships "MELLUM" and "NEUSTADT" with towing capacity are available in the North Sea.The Waterways and Maritime Administration of the Federation called on tug companies in a Europe-wide feasibility study for a longer term solution to present their ideas and offers bySpring 2002. Modern towing concepts will have to place emphasis on relatively high speeds, huge towing capacity, eventual variable draught, gas protection and possible accommodation for response teams and shipwreck survivors. The new towing concept which incorporates the emergency response unit should be put into operation by the end of 2004.The present safety standard will remain unchanged during the transition period by the extended charter contract on the “OCEANIC”.An "Operational Agreement" was concluded with Poland in November 2001 for cooperation in major shipping accidents. For the Baltic Sea a trilateral agreement is under way between Germany, Sweden and Denmark and for the North Sea between Germany, Denmark and the Netherlands.5.4. Concept for Places of RefugeFederation and coastal States have formulated the draft of a "Framework Agreement on Ports of Refuge" for the establishment of places of refuge for ships in distress which contains instructions for action for the leader of the emergency response teams under which criteria he can decide on interaction with the responsible local port authorities. The decision procedure includes the instruction to initially remain at sea, if necessary to assign an emergency moorage on the roadstead and assign a moorage in a suitable place of refuge only in the direct emergency. In many cases the dangerous consequences of a shipping accident, such as a fire on board or oil and gas residues can be handled by the rescue services in a sheltered roadstead outside a port. To this end the action instruction lists the German emergency moorages on roadsteads and the ports most suitable as places of refuge (e.g. presence of a specialised ship fire department, facilities for handling hazardous materials or liquids and repair docks on site.The scheduled places of refuge in the German Baltic Sea coast are the roadstead in the Kiel Fjords, the inner roadstead at Wismar, the Rostock roadstead, the Altefähr roadstead by Stralsund, Sassnitz ferry port and Sassnitz city port. As ports of refuge Flensburg, Kiel, Puttgarden, Lübeck, Wismar, Rostock-Warnemünde, Stralsund and Sassnitz have been selected. There are corresponding details for the German North Sea coast, where two new emergency moorages are to be constructed by the WSV for the German Bight in the approach area with permanent mooring posts.This plan for emergency moorages hinges on IMO Resolution A.852(20)[357], which calls for a system of intervention plans for shipping emergencies. At the same time, the German system is welcomed in the ongoing negotiations in the IMO to introduce an international obligation for the States to provide emergency moorages. Furthermore, the plan corresponds to the draft of the EU guideline on the facilities for a common control and information system for maritime traffic ("supervision guideline")[358]. This draft guideline obliges the EU states under Article 20 to present plans for accommodating ships in distress in the waters under its sovereignty.The Federal Government is working towards an agreement with the coastal States, in which the cooperation between the emergency response unit and the ports, cost regulation and response plan will be included.Consultations are being held at present in the Maritime Safety Committee of the IMO (MSC) under the keyword "Places of Refuge" with the following aims and guidelines for:• captains who must seek a place of refuge in an emergency,• the risk analysis relating to the request from a ship for a place of refuge and• measures by the coastal States to formulate the choice and allotment of a suitable place of refuge[359].The talks focus on the problem of how to eliminate the conflict of interests between the traditional obligations arising in maritime law for assistance and the interests of the State for the protection of its coasts and ports. Questions of liability and compensation must be addressed. The Navigation Committee of the MSC under the chairmanship of a German representative hasmade the first recommendations for guidelines[360], based partly on German and Australian initial studies. Also recommended was the establishment of national Maritime Emergency Reception Centres (MERC) to serve as registration and administration offices for all the requirements of places of refuge.A regulation for places of refuge is therefore now feasible. True cases for ports of refuge are rare. It will frequently suffice to dispose of the wrecks in a place of refuge off the coast. The liability problems are soluble. There is a growing number of liability agreements at international level whose is described under number in her further development above. In addition, there is the approved failure refund regulation in Germany in the ELG Agreement[361], under which the Federation and States share proportionally the non-recoverable costs after a shipping accident. This cost regulation will, as is already known, be continued into the new Agreement on combating marine pollution[362], to be signed in summer 2002 in a Federation-States accord.5.5. ExercisesOn the initiative of the Minister for the Interior of Schleswig-Holstein the responsible organisations from many Baltic Sea States met in Kiel on 11.04.2002 to take part in the experimental exercise "Shipping Accidents in the Baltic Sea".The exercise was conducted in the Schleswig-Holstein Police headquarters[363] with the object of acting out a concerted plan for the evacuation of up to 800 passengers from a ferry in distress in international waters in the western Baltic Sea or in the territorial limit between two different countries.The aim was to test the collaboration abilities of the different partners of the Navy, police, coastguard, accident units, fire departments etc. The plan required bringing fire fighters on board, rescuing the survivors, bringing them to land and providing medical care.The treatment of the injured, the recording of the personal data of survivors, the injured and the dead, showed there was room for improvement. The personal acquaintance of the unit leaders, the knowledge of the different responsibilities and the modus operandi proved to be of pivotal importance in an emergency. Such exercises should be repeated and extended to other partners in the entire Baltic Sea.5.6. Measures in the Kadet fairwaySafety in the busy Kadet fairway, where 55,000 ships pass through every year, was improved effective January 2002 by the addition of six buoys[364]. On the recommendation of the responsible German and Danish authorities the IMO has agreed to the extension of the deep water route “North-east of Gedser” by five sea miles to the west to the traffic separation area of the Kadet fairway. At least 12 deep draught vessels have run aground here when they have changed course to the west too soon in the Kadet fairway in order to cut the curve. The buoyed deep water route (DW 17), which has long been in existence and through which the deep draught vessels must travel is to be additionally buoyed (so called "gateway illumination") and extended far enough into the Kadet fairway that the deep draught vessels are routed around the dangerously shallow spots of the Gedser Reef (see Chart 2) where the groundings occur. Additional information concerning the sea area of the Kadet fairway is transmitted through the FM radio-telephone system at the Warnemünde traffic centre which has recently been modernised. Other traffic centres are located in Stralsund and Travemünde.Doubts have nevertheless been expressed as to whether the accumulation of buoys in narrow sea areas (there is lighting at night) might lead to confusion for the skippers with local knowledge[365]. Only experience of the new situation here can lead to a better appraisal of the situation.5.7. Instruction and TrainingAccident management and its unit leadership, (i.e. by the emergency response unit or the disaster unit of the State/district) for mastering an actual emergency /accident at sea and its consequences on land, calls for the professional instruction, further education and training of all operatives. For this reason the Grobecker Commission has already recommended “introducing suitable mandatory instruction and further education for ship’s crews, at national and international levels, for coping with emergencies and also the promotion and support of emergency training and further education in suitable training centres”[366].This Grobecker recommendation also targets the qualifications of seafarers on board ship and mentions also (only) fire fighting, foundering, salvage/towing and evacuation as a training programme. The need for further education and training also applies to the maritime facilities on land. This includes the new emergency response unit, the maritime authorities of States and Federation, pilots, traffic centres, coastal fire services, the disaster units of the States/districts and the expert personnel of the Ministries.Necessary instruction and further education requirements include:Life saving, including mass evacuation of ferry passengersAccident management leadership methods, instruments for cooperationOptimum pollution controlOptimum fire fightingLife saving equipment and fire precautions on boardSalvage and towing.Legal issues (responsibilities, agreements, liability, compensation)These educational topic illustrate time and time again how important qualified nautical personnel is, not only for service on board but also equally for maritime safety and accident management on land.However, maritime safety has an even more fundamental connection with social and working conditions on board. As is well known, 80 % of shipping accidents are caused by human error, as the EU commission stated in its communication of 06.04.2001 on the education and attitude of seafarers[367]. The requirements of qualifications and mental-physical abilities have increased enormously and are still increasing. The ship’s command in particular (captain and first officers) is often operating at the limits of its abilities through:• the reduction and internationalisation of crews together with leadership problems, (mental attitudes, eating and leisure habits, alcohol, different labour contracts, different training etc.) and the saturation of shipping concerns with electronics (different systems and software, continual controls and mandatory registration),• the ever increasing international and national regulations (including those of the Flag States, the coastal States and the Port States); this leads to comprehensive reporting requirements and continual processing of files and credentials, in which it is sometimes more important to hold “clean” documentation on board than to maintain good seamanship and professional command,• the time consuming procedures with foreign port authorities, port state controls and loading controls,• lack of sleep during local journeys and in the fringe seas, such as the Baltic and North Seas, especially on board the so called 2 Watch Ships• poor social conditions on board many so called flag of convenience ships.The minimum social standards on board are regulated by ILO Agreement No. 147[368], which is mandatory for Germany and 27 other countries. Sweden, Denmark and Finland are the onlysignatories among the Baltic Sea States. There is also the Protocol of 1996[369] to the ILO Agreement Nr. 147 which is for the first time aimed at making the observation of the labour protection regulations (limitation of working hours) a part of port state control but has not yet been ratified. Under this Protocol for instance, overtiredness of the crew can lead to the detention a foreign flagged ship within the context of the port state control; this could come into force with sufficient ratifications. The working hours on ships are for their part regulated by ILO Convention No. 180 from 1996[370], whose ratification by sufficient States is also still pending[371]. Such are the impediments to the control of international labour rights on board ships, regardless of their flag. An improvement came into force for vessels under the German flag on 01.07.2003 with the re-enactment of the German Seafarers’ Legislation[372]. This adopts the standards of the EU Guideline (Guideline on Seafarers’ Working Hours) from 1999[373] in German law. Under this Guideline stricter daily and weekly maximum working hours, extended rest periods and an upper limit for overtime apply to German seafarers. Since captains and first officers too are now subject to the working hours the regulation will cause problems for the 2 Watch Ships, which will call for the engagement of additional officers. The labour protection authorities will supervise the new industrial law on German ships. The new requirements will be simultaneously adopted with the new Seafarers’ Legislation so that Germany can ratify ILO Convention No. 180[374].Hence the call for Germany and if possible all Baltic Sea resident States to ratify ILO Agreement no. 180, No. 147 and the Protocol of 1996 if this has not already been done.The actual danger exists that the hard routine on board operation and the administration work can so dominate the order of the day for the ship’s command that safety on board falls short of the mark or that human failure becomes more prevalent.There is the additional danger that qualified maritime personnel will become a scarce commodity in Germany. This would threaten not only the entire maritime economy but also cause a lack of know-how for mastering the tasks of maritime safety and accident management at sea.The “human element” is the most important problem of all in maritime safety.AppendicesChart 1:[pic]Chart 2:[pic]Literature IndexBallschmidt-Boog, Anette Rechtliche Vorgaben und Defizite beim Schutz der Küstenökosysteme der Ostsee unter besonderer Berücksichtigung des Naturschutzrechts in: Erbguth, Wilfried (Hrsg.), Rostocker Schriften zum Seerecht und Umweltrecht des Ostseeinstituts für Seerecht und Umweltrecht der Juristischen Fakultät der Universität Rostock, Volume 12, Baden-Baden 2000.Bartels, / Güttner, Ostseehäfen und ihre Aktivitäten zur Minderung schiffsbedingter Luftschadstoffemissionen, Berichte des Innovations- und Bildungszentrums Hohen Luckow e.V., No. 9, 1999.Braasch, Wolfram Windparks – Risikoanalysen für Offshore – Installationen, in: Schiff&Hafen 2002 No. 6, S. 85-90.Clausen, Lars Schwachstellenanalyse aus Anlass der Havarie der Pallas, Bericht der Ministerpräsidentin des Landes Schleswig-Holstein am 4. Mai 1999, Bundesamt für Zivilschutz (Hrsg.), Bonn 1999.Czybulka, Detlef Naturschutzrecht im Küstenmeer und in der Ausschließlichen Wirtschaftszone – Grundsätzliche Rechtsfragen, exemplarisch behandelt für die marine Sedimententnahme in der Ostsee, in: NuR 1999, 562-570.Czybulka, Detlef Geltung der FFH-Richtlinie in der Ausschließlichen Wirtschaftszone – Ein Urteil aus London und seine Folgen für das deutsche Naturschutzrecht, in: NuR 2001, 19-27.Czybulka, Detlef Das Rechtsregime der Ausschließlichen Wirtschaftszone (EEZ) im Spannungsfeld von Nutzungs- und Schutzinteressen – Zur Geltung nationalen Rechts in der EEZ, in: NuR 2001, 367-374.Dahlke, Christian Vortrag am 6./ 7. Juni 2001 beim Meeresumweltsymposium des BSH, Symposium Volume 2001, S. 77-82.Dean, Sydney E. Die Militärische Rolle der US-Küstenwache, Marineforum 1999 No. 12, 3-5.Dreher, Martin Die Amtshilfe, Göttingen 1959.Ehlers, Peter Genehmigung von Offshore-Windenergieparks in der EEZ, in: HANSA 2002 No. 3, 51 ff.Eichhorn, Peter Besondere Formen der Zusammenarbeit von Bund und Ländern im Katastrophenfall und zur Aufrechterhaltung der inneren Sicherheit, Frankfurt a.M./ Berlin/ Bern/ New York/ Paris/ Vienna 1998.Friedrichs Amtshilfe, in: v. Stengerl, Karl/ Fleichschmann, Max (Hrsg.), Wörterbuch des Deutschen Staats- und Verwaltungsrechts, 2. Publication, Volume 1., Tübingen 1911.GAUSS/ ISL Expert report: Entwicklung eines Modells für ein integratives und international einsetzbares Bonussystem Quality Shipping, Ergebnisse der Studie, Bremen January 2002, 65 S.Green Award Seacure for Operations 2000, 7th ed., Rotterdam 1999.Grobecker Bericht Unabhängige Expertenkommission „Havarie Pallas“ Bericht, Der Bundesminister für Verkehr, Bonn February 2000, 106 S.Herber, Rolf Seehandelsrecht, Berlin 1999.Herma, Michael 9. Rostocker Seerechtsgespräch zur Schiffssicherheit auf der Ostsee, in: NuR 2002, 286-287.Hilg, Günter Beamtenrecht, 3. Auflage, Munich 1990.Institut für Seeverkehrs- Expert report: „Ökonomische Anreizsysteme für umweltverträg-wirtschaft und Logistik, lichen Seeverkehr“, final report January 2000, Bremen.ISarass, Hans D. Naturschutz in der Ausschließlichen Wirtschaftszone - Völkerrechtliche, EG-rechtliche und verfassungsrechtliche Probleme der Ausweisung von Meeresschutzgebieten, in: Erbguth, Wilfried (Hrsg.), Rostocker Schriften zum Seerecht und Umweltrecht des Ostseeinstituts für Seerecht und Umweltrecht der Juristischen Fakultät der Universität Rostock, Volume 17, Baden-Baden 2002.Jarass, Hans D./ Grundgesetz für die Bundesrepublik Deutschland, 6. Auflage,Pieroth, Bodo Munich 2002.Jenisch, Uwe Offshore-Windenergieanlagen im Seerecht – Verfahren und Inhalte der Genehmigung, in: NuR 1997, 373-381.Jenisch, Uwe Hoheitliche Aufgaben für Polizei und Umweltschutz vor den deutschen Küsten, in: NuR 2000, 193-200.Jenisch, Uwe Sicherheitspartnerschaft in der Ostsee – aktuelle Aspekte der Hafensicherheit (port security), der Bekämpfung der organisierten Kriminalität sowie der Schiffssicherheit, in: Friedrich Ebert Stiftung (Hrsg.), Bekämpfung der Piraterie und des Drogen- und Menschenhandels auf See, Dokumentation des Seminars vom 19.-20. August 2002, S. 23-28.Knack, Hans Joachim; Verwaltungsverfahrensgesetz, Kommentar, 5. Auflage, Köln/Henneke, Hans Günter Berlin/ Bonn/ Munich 1996.Knemeyer, Franz Aufgabenkategorien im kommunalen Bereich, in: DÖV 1988, 397-404.Kopp, Ferdinand/ Verwaltungsverfahrensgesetz, Kommentar, 7. Auflage,Ramsauer, Ulrich Munich 2000.Körber-Stiftung Die Ostsee – Ein Binnenmeer der Prosperität und Stabilität? Bergedorfer Gesprächskreis, 121. Protocol, Hamburg 2002.Lagoni, Rainer Die Entwicklung von Schutzgebieten in der ausschließlichen Wirtschaftszone aus völkerrechtlicher Sicht, in: NuR 2002, 121-133.Landtag Mecklen- Bericht zu aktuellen Problemen der maritimen Sicherheit auf derburg-Vorpommern Ostsee, vorgelegt vom LT MV im Auftrag des Ständigen Ausschusses der Ostseeparlamentarierkonferenz.Lemieszewski The Swedish incentive scheme of differentiated fairway and harbour dues related to their environmental impact, in: Sustainable Transport Solutions in the Baltic Region, 1999.Lorenzen, Detlev Überlegungen zu einer europäischen Küstenwache. Auf Grund gelaufen, Beiheft zur “Schwachstellenanalyse aus Anlass der Havarie der Pallas“, KFS Publication No. 10, Kiel 2000, 114-132.Obermayer, Klaus Verwaltungsverfahrensgesetz, Kommentar, 3. Auflage, 1999.Fritz, RolandOppermann, Thomas Europarecht, 2nd. Publication, Munich 1999.Peters, Christian H. Lehrbuch der Verwaltung, Berlin 1949.Rösner, Hans-Ulrich Neue Rechtslage für Offshore-Windenergie durch Bundesnaturschutzgesetz, in: Wattenmeer International 2001, 15 ff.Schmidt, Lienhard US Coast Guard, in: HANSA 2000, 12-14.Schmidt, Jordan Die Amtshilfe nach dem VwVfG, in: Schmitt Glaeser, Walter (Hrsg.), Verwaltungsverfahren – Festschrift zum 50-jährigen Bestehen des Richard Boorberg Verlages, Stuttgart/ Munich/ Hanover 1977, 135-157.Schnoor, Herbert Verfassungsrechtliche Bedingungen einer Küstenwache zur Bewältigung Maritimer Schadensfälle, in: Polizei - Dein Partner January 2000, 15-25.Sjöstöm, Leif Seeunfälle anderswo - wie regeln Nachbarn Küstenunfälle?, Dokumentation zur Fachtagung der Gewerkschaft der Polizei Landesbezirk Schleswig-Holstein, in: Polizei – Dein Partner January 2000, 26-30.Ule, Carl-Hermann/ Verwaltungsverfahrensrecht, 4. Auflage, Köln/ Berlin/ Bonn/Laubinger, Hans Werner Munich 1995.Vitzthum, Wofgang Graf Schiffssicherheit als potenzieller Durchsetzungsdegen der IMO. Vortrag auf dem 9. Seerechtsgespräch in Rostock am 05.11. 2001, publication in printWöhrle, Winfried Ausführung von Landesgesetzen durch den Bund, Münster 1967.Also see: Literature index of the main and supplementary reports.Index of abbreviations (translations where relevant in italics)a. auch; alsoa.A. andere Ansicht; other viewa.a.O. am angegebenen Orte; at the stated placeABl. Amtsblatt; official bulletinAbs. Absatz; paragraphAFS Anti-Fouling SystemsAIS Automatic Identification systemAnlBVO AnlaufbedingungsverordnungArt. Artikel; articleAStV Ausschuss der Ständigen Vertreter, BrüsselAWZ Ausschließliche Wirtschaftszone,Exclusive economic zone EEZBAnz. BundesanzeigerBd. Band; volumeBVerfG Bundesverfassungsgericht; Federal Constitutional CourtBG Berufsgenossenschaft;BGB Bürgerliches Gesetzbuch;BGBl. Bundesgesetzblatt; Federal Legal BulletinBGS Bundesgrenzschutz; Border GuardBLU-Code Bulk and Unloading CodeBMVBW Bundesminister für Verkehr, Bau- und WohnungswesenFederal Minister for Transport, Building & HousingBR-Drs. Bundesrats-Drucksache; Federal Council PaperBRZ Bruttoraumzahl; gross register tonnage (GRT)BSH Bundesamt für Seeschifffahrt und Hydrographie,Hamburg; Federal Authority for Oceanic Navigation and HydrographyBSPA Baltic Sea Protected AreasBT-Drs. Bundestags-Drucksache; Bundestag PaperBuReg. Bundesregierung; Federal GovernmentBVerwG Bundesverwaltungsgericht; Federal Administrative CourtCAS Condition Assessment SchemeCirc. IMO Circular/RundschreibenCLC Civil Liability Convention/ Oil Liability ConventionCOLREG Collision Regulations, Internationale Regeln zur Verhütung von Zusammenstößen auf See 1972COM Commission (EU)Conf ConferenceCOSS Committee on Ship SecurityDAN Dänemark; DenmarkDEU Deutschland; GermanyDGzRS Deutsche Gesellschaft zur Rettung SchiffsbrüchigerDOC Document of ComplianceDÖV Die Öffentliche Verwaltung; publication administrationDrs. Drucksache; paper, documentDVZ Deutsche Verkehrszeitung; German Transport GazetteDW Tiefwasserweg/ deep water routeEASA European Air Safety AgencyEbd. ebendaEG Europäische Gemeinschaft; European CommunityELG Einsatzleitgruppe; Task Force Leadership GroupEMSA Europäische Maritime Sicherheits-AgenturENC Electronic Navigational Chartsendg. Endgültig; finallyEP Europäisches Parlament, European ParliamentESPO European Sea Ports OrganizationEST Estland; EstoniaEuGH Europäischer Gerichtshof; European CourtEU Europäische Union; European Unione.V. eingetragener Verein; registered associationEWG Europäische Wirtschaftsgemeinschaft;European Economic CommunityFAL-Übereinkommen IMO Übereinkommen zur Erleichterung des internationalen SeeverkehrsFAZ Frankfurter Allgemeine ZeitungFFH Flora-Fauna-HabitatFIN FinlandFn. Fußnote; footnoteFUND Fonds Übereinkommen; fund agreementg GrammGAUSS Gesellschaft für Angewandten Umweltschutz und Sicherheit im Seeverkehr, BremenGG Grundgesetz; constitutionHELCOM Helsinki KommissionHrsg. Herausgeber; publisherHNS Convention on Liability and Compensation for Damages in Connection with the Carriage of Hazardous and Noxious SubstancesICAO Internationale ZivilluftfahrtorganisationILO International Labour Organisation, GenevaIMO International Maritime OrganisationIOPC International Oil Pollution Compensation FundISL Institut für Seeverkehrwirtschaft und Logistik, BremenISM Internationales Sicherheits-ManagementISPS International Ship and Port Facility SecurityISWG Intersessional Working Group (IMO)Kfz Kraftfahrzeug; vehiclekm3 KubikkilometerKOM (Europäische) KommissionkWh Kilowattstunde; kilowatt hourLDC London Dumping ConventionLET Lettland; LatviaLIT Litauen; LithuaniaLOS Law of the Sea (Convention)/ SeerechtsübereinkommenLT-Drs. Landtags-DrucksacheLT MV Landtag Mecklenburg-Vorpommernm MeterMARPOL Marine Pollution Prevention/ Übereinkommen zur Verhinderung der Meeresverschmutzung durch SchiffeMdB Mitglied des Deutschen BundestagesMEPC Marine Environment Protection Committee, IMOMERC Maritime Emergency Reception CentresMio. MillionMSC Maritime Safety Committee, IMOMW MegawattNAV Sub-Committee on Safety of Navigation, IMONfS Nachrichten für SeefahrerNuR Natur und RechtOPC Operative CommitteeOPRC Convention on Oil Pollution Preparedness, Response and Cooperation 1990OSPAR Oslo-Paris Übereinkommen zum Schutz der MeeresumweltP&I Clubs Protection&Indemnity Clubs/ SchifffahrtsversicherungenPOL PolenPSC Port State Control/ HafenstaatkontrollePSSA Particulary Sensitive Sea AreaRINA Italienische KlassifikationsgesellschaftRL RichtlinieRoRo Roll-on/ Roll-offRn. RandnummerRUS RussiaSALVGE Bergungs-ÜbereinkommenSAR Search and Rescue/ Suche und RettungSBT segregated ballast water tanks (Ballastwassertanks)SeeAnlVO Seeanlagen-VerordnungSeeAufgG SeeaufgabengesetzSeeUG Seeunfalluntersuchungs-Gesetz (alt)Sm SeemeilenSMC Safety Management CertificateSMCP Standard Marine Communications PhrasesSMS Sicherheits Management SystemSOLAS Safety of Life at Sea/ Internationales Übereinkommen von 1974 zum Schutz des menschlichen Lebens auf SeeSRÜ Seerechts-ÜbereinkommenSTCW Standards for Training, Certificates and WatchkeepingStGB StrafgesetzbuchSUG (SeeUG) Seesicherheits-Untersuchungs-Gesetz (neu)SWE SwedenSZR Sonderziehungsrecht; special drawing rightst. TonneTBT Tributylzinn; tributyl tintdw tons deadweightTSPP International Conference of Tanker Safety and Pollution PreventionTÜV Technischer Überwachungs-VereinUNESCO United Nations Educational, Scientific and Cultural OrganisationUVP UmweltverträglichkeitsprüfungVDR Voyage Data RecorderVDR Verband Deutscher Reeder, HamburgVTS Vessel Traffic (Management) SystemVwVfG VerwaltungsverfahrensgesetzWRC Wreck Removal ConventionWSV Wasser- und Schifffahrtsverwaltung (des Bundes)WWF World Wildlife Fund-----------------------[1] Published in: Landtag Mecklenburg-Vorpommern, Maritime Safety in the Baltic Sea Region. Documentation of the work of the Landtag of Mecklenburg-Vorpommern on the topic of “Maritime Safety” in the framework of the Baltic Sea Parliamentary Conference, Schwerin December 2001, S. 279 – 452.[2] See.in specified place, S. 511 – 579, text of the supplementary report of 2001.[3] BT-Drs. 14/5450 19.03.2001; BT-Drs. 14/8855 of 23.04.2002; unanimously adopted 25.04.2002, Plenary Protocol 14/233 of 25.04.2002; see also under No. 5.1.[4] BT-Drs. 14/9487 of 03.06.2002; also www.bmvbw.de/Anlage 9673/Report on Maritime Safety in the Baltic Sea Region.[5] BT-Drs. 14/8611 of 20.03.2002; Report 233. Sitting of the German Bundestag, Plenary Protocol of 25.04.2002.[6] Printed in: Landtag Mecklenburg-Vorpommern, Maritime Safety in the Baltic Sea Region, Schwerin 2001, S. 607 ff.[7] In this connection see the Recommendation in No. 8 of the main report.[8] Figures from “Updated inventory on existing maritime safety measures in the Baltic Sea area”, HELCOM SEA 5/2002 3.3/1 from 26.04.2002 and independent reference. The table lists only the most important agreements without their protocols.[9] Bergen Declaration of 20./21.03.2002 consisting of a total of 83 various appendices and demands for the protection of the North Sea, also published in HELCOM SEA 5/2002 2.5/1.[10] The draft of an 8th. MARPOL amended regulation is in the legislation. The North Sea Protection Conference of Bergen also calls under No. 43 for the early enforcement of the MARPOL Document VI. The EU Commission has called for prompt ratification by the member States.[11] Norway, Sweden, Singapore, Bahamas, Malawi; see DVZ (German Transport News) from 27.07.2002.[12] White Paper on Common Transport Policy...; ESPO News Vol. 8.1, January 2002, S. 6, see alsoNo. 2.4.[13] Statuory amendment called for 2/3 majority in the Council and ratification of the member States.[14] International Agreement 1974 on Protection of Human Life at Sea (SOLAS), BGBl. 1998 II S. 2579; also CD-ROM 01-11-00 See-BG.[15] While SOLAS only declares Chapter IX of the ISM Code applicable, the only comprehensive Code as IMO Resolution A.741(18) is printed in German, this includes the ISM administration guidelines in Bundesanzeiger 1995 No. 53 S. 2732-2734 and Bundesanzeiger 1995 No. 241, S. 12798.[16] Deutsche Seeschifffahrt, German Shipowners’ Association trade gazette, 1/2002, 1 f.[17] SOLAS, Chapter IX, Rule 2.[18] See instruction of the Maritime Trades Association, Ship Safety Division: “Das ISM System...” of 21.12.2001.[19] See following instruction of the Maritime Trades Association, ibid.[20] See Deutsche Seeschifffahrt, 1/2002, 2.[21] Seeschifffahrt 2001, VDR (German Shipping Association) report, Hamburg 2001, S. 24.[22] The vessels PALLAS, ERIKA and SEA SYMPHONY (RoRo accident in the Baltic Sea in December 2001 caused by overturning HGVs and unsecured cargo) were in the RINA register.[23] BGBl. 1986 II S. 786 .[24] German ratification of the 1996 Protocol.[25] See main report No. 3.2.2.2.2, S. 55 f; maximum liability sum 135 mio. SDR; each special drawing right (SDR) was equal to 1,40395 mio. ¬ on 15.05.2002.[26] Agreement from 1992 on the civil legal liability for oil spill damages, BGBl. 1996 II S. 670.[27] Agreement from 1992 on the iability sum 135 mio. SDR; each special drawing right (SDR) was equal to 1,40395 mio. € on 15.05.2002.[28] Agreement from 1992 on the civil legal liability for oil spill damages, BGBl. 1996 II S. 670.[29] Agreement from 1992 on the establishment of the International Fund for Compensation for Oil Spills, BGBl. 1996 II S. 685.[30] See under No. 2.2.[31] Draft International Convention on Civil Liability for Bunker Oil Pollution. See also Wattenmeer International 2001, 19.[32] See re. Seeschifffahrt 2001, Report of the VDR, Hamburg 2001, S. 20.[33] In Germany according to § 22 Water management regulations.[34] See No. 1.3.1. above[35] Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974/1990.[36] See above No. 1.3.1.[37] Convention on Liability and Compensation for Damages in Connection with the Carriage of Hazardous and Noxious Substances 1996, not yet in force.[38] EU Council 14376/01, MAR 114 from 22.11.2001.[39] New Chapter V of the SOLAS Agreement came into force 01.07.2002.[40] Introduction of AIS in conjunction with port security is regarded as very urgent, see under No. 1.9.1.[41] Schiff & Hafen 2/2002, 6.[42] Schiff & Hafen 12/2001, 20.[43] Schiff & Hafen 4/2002, 15.[44] Schiff & Hafen 4/2002, 223; HANSA 2002 No. 7 S. 21 ff.[45] See under No. 3.1.[46] IMO, Adoption of the Final Act...”International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001”; AFS/Conf/26 from 18.10.2001.[47] AFS/Conf/25 from 08.10.2001.[48] EU Guideline 89/677 EWG with TBT ban for vessels under 25 m. long..[49] Possibly through the food chain also effects on the human hormone system, see Wattenmeer International 4/2001, 12.[50] Proposal for a Regulation on the Prohibition of Organotin Compounds on Ships. COM (2002) 396 final from 12.07.2002.[51] AFS/CONF/RD/2 from 05.10.2001 and AFS/CONF/25 from 08.10.2001.[52] The German Navy can under § 24 Chemicals Legislation continue to use TBT paints for military reasons e.g. for submarines and minesweepers.[53] This also applies to vessels of non-signatory States, see Art. 3 (1) c of this agreement.[54] Resolution A.928 (22) from 29.11.2001; Texts of the Resolutions in AFS/Conf/25 from 08.10.2001.[55] FAZ from 21.01.2002.[56] FAZ from 21.01.2002.[57] Harmful aquatic organisms in ballast water, MEPC 47/2 from 30.11.2001.[58] Detailed documentation and results of the Workshop in: MEPC 47/INF.5 (82 pages)[59] Harmful aquatic organisms in ballast water, The Legislative Review Project..., MEPC 47/INF. 10 from 21.12.2001.[60] MEPC 47/2/3 from 30.11.2001[61] MEPC 47/2/5 from 07.12.2001[62] HELCOM SEA 5/2002 INF. 3 from 18.03.2002[63] Cursory description of problems in MEPC 47/INF. 10 from 21.12.2001.[64] Summary Report on the Baltic Maritime Coordinating Meeting in Conjunction with MEPC 46, from 22.04.2001.[65] Fundamental to PSSA areas, see supplementary report under No. 3.1.4., S. 18 ff.[66] Guidelines for the designation of special areas and the identification of particularly sensitive sea areas, A.720(17) and A.885(21).[67] Great Barrier Reef, Australia and the Archipelago of Sabana-Camaguey, Cuba.[68] Resolution A.927(22) from 29.11.2001, A22/Res. 927 from 15.01.2002.[69] Motions by the USA, MEPC 47/8 from 01.11.2001; also motion by Colombia for Malpelo Island.[70] MEPC 47/20 from 18.03.2002.[71] These limitations, imposed by transport and commercial interests, prevented the 9th. Trilateral Wattenmeer Conference from exploiting the full possibilities of a PSSA motion, which can among other things allow traffic restrictions or even restricted areas. The Conference was in any case not particularly successful as nobody could or would agree that the Wattenmeer should be declared a world nature heritage by UNESCO.[72] Guidelines under A22/Res.927 from 15.01.2002 and “Draft guidance document for submission of PSSA proposals, submitted by the United States”, MEPC 47/8/1 from 10.12.2001.[73] MEPC 48/7/2 from 28.06.2002.[74] Declaration on the Safety of Navigation ...adopted on 10 September 2002 in Copenhagen, HELCOM SEA 4/2001 2/1.[75] See also: Warnings against attacks on oil and gas tankers and cruise ships in FAZ from 04.05.2002.[76] IMO News 2001, 19; IMO Circular Letter No. 2391 from 19.06.2002.[77] Refers to US Customs Officers in foreign ports, see ESPO-News 8.09 from 11.06.2002.[78] ESPO News 8.6 from June 2002; Deutsche Verkehrszeitung DVZ from 25.06.2002 and 16.07.2002.[79] ESPO News 8.2, February 2002.[80] Intersessional Working Group - ISWG - on Maritime Security, Report MSC 75/17/1 from 25.02.2002 with Appendices to amendments to the SOLAS Agreement and drafts for the contents of the guidelines.[81] IMO MSC 75/17/ No. 1-40 ff. with various considerations and recommendations on formulation of new SOLAS regulations including those from the USA, Liberia and Singapore.[82] See also first recommendations on formulation in MSC 75 ISWG/WP 4 from 14.02.2002.[83] First draft texts in MSC 76/ISWG/2 from 24.06.2002.[84] Deutsche Verkehrszeitung DVZ from 25.06.2002.[85] ESPO News Vol. 8.1, January 2002, 8.[86] ESPO News Vol. 8.1, January 2002, 5.[87] MSC 75/17/12 from 12.04.2002.[88] See under No. 3.3.3.[89] See under No. 5.[90] Marine Forum 2002 Nr. 4, 42.[91] Schiff & Hafen 3/2002, 12; Press release by the BMVBW from 16.01.2002.[92] DVZ, Deutsche Verkehrszeitung from 22.06.2002; deficits identified in the Baltic Sea in HELCOM Sea 5/2002 3.4/11 from 10.05.2002.[93] Deutsche Verkehrszeitung DVZ from 11.07.2002.[94] No. 3.2, S. 38 ff.[95] Graf Vitzthum, Maritime safety as a potential enforcer of the IMO, foreword at the 9th. Law of the Sea talks in Rostock on 05. 11. 2001, published in print.[96] Guideline 2001/105 of the European Parliaments and the Council from 19.12.2001 on the amendment of Guideline 94/57 EG for general stipulations and standards for ship inspections and inspection organisations and the relevant measures of the maritime authorities, App.1. EG L 19/9 from 22.01.2002.[97] Guideline 94/57 EG, App.1. L 319 from 12.12.1994 S. 20.[98] See above No. 1.9.3.[99] ESPO News 2002 No. 8.6 from June 2002.[100] SIRENAC - Système d ́Information Relatif aux Navires Controllés in St. Malo, France.[101] Guideline 2001/106 of the European Parliament and the Council from 19.12.2001 on the amendment to Guideline 95/21 EG for implementation of international standards for maritime safety, the prevention of pollution and for the living and working conditions on board ships entering the Community ports and plying in the sovereign waters of the member States (port state control), App.1. of EC L 19/17 from 22.01.2002.[102] App.1. L 157 from 07.07.1995, first amended through 2001/106 EC.[103] Valid version in BGBl. 2000 II S. 892.[104] See above No. 1.9.3.[105] ESPO News 2002, 8.6 from June 2002. While Ireland had inspected 25% (21%), France was well behind with 9,6 %, although it was France that appealed for better port state control after the ERIKA accident.[106] App. of the EC from 07.03.2002, L64/1.[107] See main report No. 3.2., S. 48 f.[108] MEPC 47/11/3 from 07.12.2001.[109] Internet: www.greenpeace.org.[110] DVZ Deutsche Verkehrs Zeitung from 14.02.2002.[111] KOM (2000) 802 final from 08.12.2000.[112] See main report No. 3.2.2.2.1.[113] See supplementary report No. 3.2.6.1.[114] See Art. 21 and 87 in conjunction with Art. 58 SRÜ.[115] See under No. Regulation of conditions for putting into port (AnlBVO) from 23.08.1994, BGBl. I S.2246, last amended 18.12.2000 BGBl. I S. 1735.[116] See under No. 2.3.3.[117] See under No. 2.3.1.[118] See No.. 1.3.2.[119] Deutsche Verkehrs Zeitung DVZ from 10.01.2002.[120] Amsterdam is co-applicant with Cologne, FAZ from 20.06.2002.[121] BT-Drs. 14/8467 from 12.03.2002 (minor interpellation from FDP).[122] See above No. 1.9.1.[123] ESPO News 2002 No. 8.6 from June 2002.[124] Theme Europe, Transport and Environment, Strategies for an effective long term transport system in Europe, Faction of the Social Democratic Party of Europe (SPE), 2002, S. 42.[125] App.. EG L 332/81 from 28.12.2000, see also main report No. 3.2.1.[126] 3rd. Maritime Safety Adjustment Regulation from 24.08.2001 BGBI. 2001 I S. 2276 and draft of 4th.Maritime Safety Adjustment Regulation[127] In MVP: Draft of ship’s waste disposal legislation from 14.12.2001..[128] See under No. 3.2.[129] Text in App.1 of the EU L 13/9 from 16.01.2002.Text in App.1 of the EU L 13/9 from 16.01.2002.In 20 years 170 bulk cargo vessels with 1300 crew members have been lost, Hamburger Abendblatt from 12.06.2006.[130] In 20 years 170 bulk cargo vessels with 1300 crew members have been lost, Hamburger Abendblatt from 12.06.2006. IMO Resolution A.862(20) from 27.11.1997.[131] IMO Resolution A.862(20) from 27.11.1997.[132] App.1 EU L 13/9 from 16.01.2002.[133] Convention on Facilitation of International Maritime Traffic, FAL Convention, BGBI.1967 II S. 2434 andBGBI. 1984 II S. 938; in force for 83 States; of the Baltic Sea States only Estonia and Lithuania are not yet signatories.[134] Guideline 2002/6/EC from 18.02.2000. on reporting formalities....., ABI. EC L 67/31 from 09.03.2002[135] BGBl. 1994 I S. 2246.[136] KOM (2000) 459; BR-Drs. 651/00 from 16.10 2000.[137] Guideline 93/75 on minimum standards in seagoing vessels; Guideline 94/57 on classification associations, Guideline 94/58 on minimum standards for seafarers and Regulation No. 613/91 on reregistration of vessels, No. 2978/94 on surveying of ballast compartments in tanker vessels and No. 3051/95 on the safe operation of Ro-Ro passenger ships.[138] Council of the EU 9664/02 from 07.06.2002.[139] Art. 217 § 3 and Art. 21 § 2 SRÜ obligates the States to accept the internationally recognisedcredentials, rules and norms.[140] Communication of the Commission 2002/0074 (COD) from 25.03.2002; BR-Drs. 321/02 from15.04.2002.[141] SOLAS Rules I-19, obligation to accept valid credentials of the Flag State.[142] Stockholm Agreement 1996 (as a reation to the ESTONIA disaster), IMO Circ. No. 1891 from 29.04.1996.[143] Buoyancy and manoevrability must be guaranteed in 4 m, while SOLAS stipulates only 1,5 m high waves.[144] Council of the EU 9664/02 from 07.06.2002.[145] Art. 217 § 3 and Art. 21 § 2 SRÜ obligates the States to accept the internationally recognisedcredentials, rules and norms.[146] SOLAS Rules I-19, obligation to accept valid credentials of the Flag State.[147] Re. Athens Agreement see above No. 1.3.4.[148] Guideline 98/18/EC and its intensification, see under No. 2.3.5.[149] Under Art. 228 § 2 ECR the European Court can even enforce fines on a member State.[150] Re. so called “Green Shipping” see: www.green-shipping.de and under No. 4.4.[151] Also Herber, Seehandelsrecht S. 4 ff.[152] Declaration on the Safety of Navigation..., adopted on 10 September 2001 in Copenhagen by the HELCOM Extraordinary Ministerial Meeting. HELCOM SEA 4/2001, 2/1 from 10.09.2001.[153] Background Document to the Declaration on the Safety of Navigation and Emergency Capacity in the Baltic Sea Area from 10.09.2001.[154] HELCOM SEA, minutes of the fourth meeting, HELCOM SEA 4/2001 4/1Rev.1.[155] HELCOM SEA 5/2002 5/3 from 23.05.2002.[156] See under No. 0.[157] This measure was subject to consultation in the responsible expert body of the IMO in July 2001 and was introduced 01. 01. 2002, see under No. 5.6.[158] IMO SN /Circ. 218; HELCOM SEA 4/2001 2/6/Rev.1 from 14.11.2001.[159] HELCOM SEA 4/2001 from 23.11.2001.[160] Both these attempts to implement mandatory pilotage in international waters, as in this case the Danish Straits and the Kadet fairway, are in the opinion of this expert legally and practically not enforceable since they are legally doubtful. The legislative structure in the Straits allows for no mandatory pilotage at present. Mandatory pilotage in international waters for certain vessels and binding for all flags is not compatible with private legal contracts. Secondly, the burocratic controls would be disproportionate and the shipping companies, agents and recipients of cargos concerned might well avoid the route out of desperation. The Danish recommendations are also not conducive to an interim solution. Any regime using pilots which may only have beed agreed by the HELCOM States could not be made binding on the great majority of tankers and hazardous goods carriers under the flag of a third party. The legal questions in this case might be better separately addressed as they fall outside the scope of this report.[161] HELCOM EXTRA PREP 2/2001 Doc. No. 9 from 18.6.2001.[162] HELCOM SEA 4/2001, 2/11/Rev.1 from 30.11.2001.[163] HELCOM SEA 4/2001, 2/9 from 16.11.2001.[164] Helcom Recommendation 23/3, adopted 06.03.2002.[165] Legally doubtful as these of ECDIS in the SOLAS Agreement, Part V, is at present only regarded as voluntary.[166] Re. AIS equipment see also No. 1.4 and No. 5.6. above[167] HELCOM SEA 5/2002 3.3/4 from 03.05.2002, report from the AIS Expert Group.[168] Oils which disperse rapidly in water.[169] HELCOM 2/6 Rev.1, Add. 1.[170] The Danish background paper on the designation of PSSAs in the Baltic Sea calls for examination of the needs, among other things an inventory of existing safety measures and the additional advantages, handicaps/disadvantages and a study by an independent expert; recommendations for additional measures should be examined for their compatibility with international law; HELCOM EXTRA PREP 2/2001 Doc. No. 5 from 18.6.2001.[171] HELCOM SEA 4/2001, 2/7 from 12.11.2001.[172] See above No. 1.8.2.[173] Preliminary inventory in HELOM SEA 5/2002 3.3/1 from 26.04.2002.[174] HELCOM SEA 5/2002 5/3 S. 10.[175] In view of the problems with German legislation see. 4.1.[176] HELCOM SEA 5/2002 5/3 S. 10.[177] This demand should be extended to include obligatory prompt mutual exchange of information in the event of accidents .[178] HELCOM SEA 5/2002 4.3b/1 from 26.03.2002.[179] See under No. 5.4. “Concept for places of refuge”[180] HELKOM SEA 5/2002 5/3 S 14.[181] HELCOM SEA 4/2001, INF.5/Item 2 from 30.11.2001.[182] See under No. 5.3.[183] HELCOM SEA 5/2002 5/3 S. 3 f.[184] Standard discharge connection is listed in EU Guideline 94/25, which is currently being reenacted.[185] Baltic Carrier Incident and the Response to the Spill, HELCOM SEA 5/2002 4.3b/6 from 26.04.2002.[186] Internet access under: www.helcom.fi.[187] Details under www.coastguard.se/ra/vol3/pages/manual.htm.[188] Expert Group on Environmental Crime in the Baltic Sea Region 2nd Report, May 2002, Office of the Director of Public Prosecution, Copenhagen.[189] HELCOM SEA 5/2002 5/3 S. 17.[190] HELCOM document from 29.01.2002.[191] HELCOM SEA 5/2002 3.2/2 from 26.04.2002.[192] HELCOM SEA 5/2002 3.2/3 from 30.04.2002.[193] Collision between the BALTIC CARRIER/TERN with 2700 t oil spill east of the Kadet fairway.[194] HELCOM SEA 5/2002 3.2/4 from 30.04.2002.[195] See also the listing under No. 1.9.1.[196] Baltic Sea States Summit Riga, 22-23 January 1998; Presidency Declaration.[197] Results of the Conference of Ministers for Justice and the Interior of the Baltic Sea Council in Lübeck on 07.05.2002, FAZ from 08.05.2002.[198] Chairman ́s Conclusions, 4th Baltic Sea States Summit 10 June 2002.[199] The Baltic Sea – An inner sea of prosperity and stability? Bergedorfer Gesprächskreis, 121. Protocol, Körber-Stiftung Hamburg 2002, S. 54, 60, 78.[200] Denmark (the Prosecutor General) coordinates cooperation between the prosecuting bodies.[201] FAZ from 12.11.1996.[202] From January to April 2002 alone over 7300 illegal immigrants over the Italian seaward borders.[203] Anti-terrorism legislation from 9. January 2002, BGBl 2002 I, S. 361.[204] Border control legislation, BGBl. 1994 I S. 2978, last amended BGBl. 2001 I S. 904.[205] Jenisch, Sovereign duties for police and and environmental portection of the German coasts, NuR 2000, 200 ff.; Lorenzen, Considerations for a European Coastguard. Run Aground, accompanying book to “Analysis of weak points initiated by the Pallas disaster”, KFS Publication No. 10, Kiel 2000, S. 114 ff.[206] Calls for a joint EU border control police force and security policy, FAZ from 19.04.2002.[207] Independent expert commission “Pallas disaster”, report (so called Grobecker Report), BMVBW from 16.02.200, Recommendation No. 1, S. 76.[208] Clausen, Analysis of weak points initiated by the Pallas disaster. Disaster Research Facility of the University of Kiel, 1999.[209] Re. US Coastguard see Schmidt, US Coastguard, HANSA 2000, 12 ff; Dean, Sydney E. The military role of the US Coastguard, Navy Forum 1999 No. 12, 3 f.[210] Implementation of HELCOM Recommendation in Denmark, HELCOM SEA 5/2002 4.6/9 from 08.05.2002.[211] See under No.. 5.1; Herma, 9. Rostock Maritime Law Talks on Maritime Safety in the Baltic Sea, NuR 2002, 286 f.[212] Sjöstöm, Maritime disasters elsewhere – how should neighbours regulate coastal accidents? The police, your partners. Documentation on the expert meeting of the Police Association Schleswig-Holstein District January 2000, S. 26 ff.[213] See under 3.1. and 3.2.[214] Quote from Kesting in: Lorenzen, Considerations for a European Coastguard, in the specified place, S. 144 ff.[215] BR-Drs. 496/02 from 30.05.2002.[216] See above under No. 3.1.[217] See above under No. 2.3.1.[218] Legislation on the investigation of maritime accidents (SeeUG) from 06.12.1985, BGBl. I S. 2146.[219] BGBl. 2002 I S. 1815 ff.[220] Second oceanic navigation adapted legislation , BT-Drs. 14/6455 from 27.6.2001.[221] The States demanded that this legislation be designated a Federal Council Law, as State interests were severely prejudiced due among other things to State liability. In the unanimous opinion of the Federal Council from 1.6.2001 however, not only the need for consent for the entire legislation was called for but also improvements to the legislation on the investigation of maritime accidents. The States are not protecting themselves against a reenactment and modernisation of the legislation on investigation of maritime safety (SUG), they do however demand a formal right of motion for the responsible regional maritime authorities, the deployment of specialists with local specific expertise, publishing of the procedures and the opportunity to object. Furthermore, reenactment of the SUG will be rebutted; it may be rational but hardly urgent if one compares it with the problems of the coastguard and the emergency response units.[222] BT-Drs. 14/6455, Appendix 2, joint position of the States.[223] BT-Drs. 14/6455.[224] Börnsen, MdB spoke on the 5th. July 2001 in the Bundestag of “a radical systems breakdown in the investigation of maritime accidents ”.[225] In this way § 15 of the Bill regulates the requisite validity of important regulations in the legislation for aircraft accident investigation.[226] IMO Code in: Verkbl. 2000, S. 128, Appendix vol. B 8124, S. 21.[227] See BT-Drs. 14/6455, S. 1 from 27.6.2001; also Grobecker Report, S. 72, 99.[228] IMO-Code Point 1.2., in specified place.[229] Point 2, no blame principle, in specified place.[230] Point 3, in specified place.[231] Point 4, in specified place.[232] Point 6, in specified place.[233] Point 5, in specified place.[234] Points 7-9, in specified place.[235] Point 10, in specified place.[236] Points 12, 14, in specified place.[237] See above No. 1.2.[238] See also Federal Council, BR-Drs. 248/01, S. 1.[239] See main report under No. 2.[240] Czybulka, Nature protection law in the coastal sea and the EEZ, NuR 1999, 562 (563).[241] Vgl. Jarass, Nature protection in the EEZ, S. 10.[242] Sable Gally in the Atlantic, Endeavour Hot and Bowie Seamont in the Pacific.[243] Also report of the Federal Office for Nature Protection from Nov. 2000.[244] See UN Doc. A/54/429 from 30.09.1999, quoted in Czybulka, Validity of the FFH Guideline in the EEZ, NuR 2001, 24, Fn. 17.[245] Jarass, in specified place, S. 13.[246] Jarass, in specified place, S. 13.[247] See also main report under No. 3.1.[248] International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL).[249] Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973.[250] The MARPOL Agreement has been in force for the Federal Republic of Germany since the 2nd. October 1983 including Appendix I (Legislation to the International Agreement from 1973 for the Prevention of Pollution from Ships and the Protocol from 1978 to this Agreement from the 23rd. December 1981, BGBl. II S. 2; Announcement of the official translation of the Agreement from 5th. March 1984 BGBl. II S. 230, last amended through the third adaptation regulation from 18th. October 1988, BGBl. II S. 974), Appendix II came into force on the 6th. April 1987, Appendix V on 31st. December 1988.[251] See Regulation 1 No. 10 of the Appendix I/MARPOL 73/78.[252] Regulation 10 of the Appendix I/MARPOL 73/78.[253] Regulation 5 of the Appendix II/MARPOL 73/78.[254] Resolution 9, “Protection of Particular Sensitive Sea Areas”, adopted by the International Conference on Tanker Safety and Pollution Prevention (TSPP) in London, February 1978.[255] Not however in the inner waters.[256] Under Article 15 HÜ the signatories apply individually and jointly all appropriate measures regarding Baltic Sea areas and coastal ecosystems inflenced by the Baltic Sea in order to maintain the biological diversity and natural habitats and protect the ecological balance.[257] In more detail: Ballschmidt-Boog, Legal standards and deficits in the protection of the coastal ecosystems of the Baltic Sea under special consideration of the nature protection legislation.[258] Jarass, in specified place, S. 48 ff.[259] Fauna-Flora-Habitat Guideline, RL 92/43.[260] Jarass, in specified place, S. 53.[261] Decision from 5.11.1999 - CO/1336/1999 -.[262] Guideline 85/337/EWG on environmental compatibility inspection of certain public and privateprojects.[263] Jarass, in specified place, S. 61.[264] Jarass, in specified place, S. 56.[265] Jarass, in specified place, S. 57.[266] Oppermann, Europarecht, Rn. 1719.[267] Jarass, in specified place., S. 51.[268] Lagoni, The development of protected areas in the EEZ from the national legal standpoint, NuR 2002, 121.[269] Lagoni, in specified place.[270] Art. 55 ff. SRÜ.[271] Lagoni, in specified place, S. 122.[272] Lagoni, in specified place, S. 122 ff.[273] See also the contribution to PSSA and MARPOL special areas in this and the preceding report.[274] BGBl. 2002 I S. 1193 ff.[275] According to this view the sovereign authority of the coastal State mentioned in Article 56 Para. 1 letter. B) iii) SRÜ concerning ’The protection and conservation of the marine environment’ in connection with the statutory general obligations of the States in Article 192 SRÜ „to the marine environment“ and the clarification in Article 194 Para. 5 SRÜ should be read, in which are the measures taken in agreement with Part XII SRÜ and the mandatory measures for the protection and conservation of rare or vulnerable ecosystems and habitats which are home to threatened species or species threatened by extinction, Lagoni, in specified place S. 128 with reference to Czybulka, in specified place, NuR 1999, 563 f.; ders. The legal regime of the EEZ in the polarised field of exploitative and protective interests, NuR 2001, 367; ders. in specified place, NuR 2001, 24.[276] See foreword by Dahlke on 6./ 7. June 2001 at the Marine Environment Symposium of the BSH.[277] I.V.m. a regulatory authority of the Federal Ministry of Transport, Building and Housing.[278] BGBl. 1997 I S. 57; see also Jenisch, Offshore Wind Energy Installations in the Law of the Sea,NuR 1997, 373 ff.[279] Dahlke, in specified place.[280] Federal Nature Conservation Legislation, new regulation BGBl. 2002 I S. 1193, especially. S. 1216.[281] Dahlke, in specified place.[282] See Ehlers, Approval of Offshore Wind Energy Parks in the EEZ, HANSA 2002, 51 f. and new version SeeAnlVO in BGBl. I 2002 S. 1216.[283] Handelsblatt from 10.05.2002.[284] Ehlers in specified place, S. 51.[285] Germanischer Lloyd, Regulations and Guidelines, IV Non-maritime equipment, Guideline on the assessment of technical risk analyses, Bulletin 2002. Vgl. a. Braasch, Wind park risk analyses, in: Schiff & Hafen No. 6 S. 85 ff.[286] Introduction, “Economic incentives for environmentally friendly sea traffic”, Institut für Seeverkehrwirtschaft und Logistik (ISL), Bremen 2000.[287] See also under No. 4.4.2.[288] Report “Economic incentives for environmentally friendly sea traffic”, final report January 2000, Institut für Seeverkehrswirtschaft und Logistik (ISL), Bremen[289] Also: Green Award, Seacure for Operations 2000, 7th ed., Rotterdam 1999.[290] Green Award, in specified place, S. 16-108.[291] Shipping concerns wishing to claim the reduced waterways and port charges require a certificate for the emission of every ship. The certificates are issued by laboratory and classification associations accredited by the Swedish Maritime Administration.[292] Also: Lemieszewski, The Swedish incentive scheme of differentiated fairway and harbour dues related to their environmental impact, in: Sustainable Transport Solutions in the Baltic Region 1999.[293] See No. 1.5.[294] Report: “Economic incentives for environmentally friendly sea traffic”, Final report January 2000, Institut für Seeverkehrwirtschaft und Logistik (ISL), Bremen.[295] Press release, City of Hamburg from 11th. May 2001.[296] Hellberg, Report on the citizenry of the Hanseatic Cityof Lübeck, Environmental Authority.[297] Commencement of plan 1.6.2001, end 31.5.2004.[298] Also: Bartels/ Grüttner, Baltic Sea Ports and their activities in the reduction of atmospheric pollution generated by shipping, Report from the Innovations- und Bildungszentrums Hohen Luckow e.V., No. 9, 1999.[299] Expert report “Development of a model for an integral, internationally applicable bonus system for Quality Shipping”, GAUSS und ISL, Bremen, January 2002.[300] BT-Drs. 14/5450 from 19.03.2001.[301] BT-Drs. 14/8611 from 20.03.2002; Plenary protocol 14/233 from 25.04.2002.[302] Also LT MV Drs. 3/2111, No. 2.1.1.[303] According to Recommendation No. 1 of the report “Legal assessment of maritime safety under special consideration of the interests of the State of Mecklenburg-Vorpommern”, LT MV Drs. 3/70.[304] The LT MV has helpfully applied a strengthening of the coordination links in the coastguard.[305] LT MV Drs. 3/3019 from 26.06.2002.[306] Schleswig-Holsteinischer Landtag, Drs. 15/532 from 14.11.2000 and Drs. 14/2695 from 26.1.2000; again Drs. 15/909 from 26.4.2001, see also LT-Drs. 15/378 fom 14.09.2000 (PALLAS Report).[307] Grobecker Report, in specified place, S. 31.[308] Clausen presented 04.05.1999 an analysis of weak points commissioned by the Schleswig-Holstein State Government, (in more detail: Weak points analysis).[309] For instance the different jurisdictions for traffic safety and freight safety fire services.[310] Weak points analysis, in specified place, S. 13.[311] BVerwG, NuR 91, 279.[312] This concerned pollution in the coastal waters region, the Elbe, Trave and the North Baltic Sea Canal.[313] Schnoor in: Polizei - Dein Partner v. 17.1.2000, S. 15 “From the technical viewpoint, the appropriate management of policing and other important offices - on land and at sea - the merging of all necessary forces and all necessary material resources under a monocratic leadership”.[314] See main report under No. 6.2., S. 123 ff. and supplementary report under No. 5., S. 51 ff.[315] Press release BMVBW Nr. 379/01 from 7th. December 2001.[316] Consent of the Cabinet in Schwerin on 04.06.2002.[317] LT MV Drs. 32967 from 12.06.2002.[318] A complex damage situation in the sense of the Federation-States Agreement is so called if many human lives, goods of high value, the environment or the safety and freedom of movement of navigation are threatened or a disturbance to any of these foregoing has already occurred and the means and powers of the usual services prove insufficient to control this dangerous situation or a uniform leadership of several different assigned persons is required, § 1 Para. 4 of the Agreement.[319] § 9 Para. 1 of the Agreement.[320] Cooperation with the Federal Army/Navy is part of a special agreement; the deployment of the DGzRS is regulated in a special agreement.[321] Schleswig-Holsteinische Landeszeitung from 12.06.2002.[322] § 5 Para. 2 “The leader of the emergency response unit is an operative of the Federation. Insofar as he is performing tasks assigned by the coastal States in course of his activities this is done under his assignments. The legal responsibilities remain unchanged.”[323] BVerfGE 12, 205 (221); 21, 312 (325 f.).[324] BVerfGE 21, 312 (326); in view of the clear refusal of the Federal Constitutional Court to uphold the exercise of State legislation by the Federation, no further reference can be sought in Wöhrle, which (on its part) sets particular importance on constitutional reality but defines no clear distinction between implementation and application of State legislation.[325] BVerfGE 15, 1 (15).[326] BVerfGE, 15, 1 (15).[327] Peters, Lehrbuch der Verwaltung, S. 59.[328] Kopp/ Ramsauer, Administrative procedure legislation commentary, § 4 Rn. 16.[329] BVerfGE 15, 1 (16).[330] Schmidt, Cooperation between authorities under VwVfG, in: Schmitt Glaeser (Hrsg.), Administrative procedure– annals to 50 years existence of the Richard Boorberg Verlages, S. 144 f.[331] Ule/ Laubinger, Administrative procedural law, § 11 Rn. 16.[332] A.A. Dreher, Cooperation between authorities, S. 110, which assumes that the claim on cooperation between authorities can be made at the discretion of the requesting authority.[333] Knack, Administrative procedure legislation commentary, § 4 Rdnr. 2.4 m.w.N.[334] See main report No. 7.[335] Also in detail: Grobecker Report, in specified place, S. 65 ff.[336] For example: the foundation of the administrative agreement: „The emergency response unit is accorded the right of discretionary action insofar as it can assume sole leadership in the case of a complex damage situation. The assumption of leadership of the unit is binding for all the involved offices of the signatory to the Agreement (N:B: and thus also those of the States). Jurisdictional conflicts which impair or hamper the leadership of the unit should thus ultimately be avoided.[337] Also Friedrichs, Cooperation between authorities, in: Stengerl/ Fleischmann (Hrsg.), Dictionary of German State and Administrative Law, S. 118.[338] Re. Dreher, in specified place, S. 31 f.[339] Also Hoffmann, in: Obermayer (Begr.), Administrative procedure legislation commentary, § 4 Rn. 24.[340] For many: Jarass/ Pieroth, GG-Kommentar, Art. 96 Rn. 4.[341] E.g. in § 38 Para. 2 des SchornsteinfegerG from 15.9.1969, BGBl. I S. 1634 in which the management of the (Federal) waste disposal facility in the German chimney sweeps’ trade was transferred to the Bavarian Insurance Chambers[342] Fundamental: BVerfGE 63, 1.[343] The legislative structure of administration measures is more difficult, as it concerns the venting of oil residue from the tanks and holds. On the one hand, to make these – extremely costly – measures mandatory, to enable the possible disposal of the wreck later (this calls for a river policing measure), On the other hand, the chief aim of these measures should be the prevention of pollution of the surrounding waters and coasts. A decision on individual cases is needed.[344] BVerfGE 63, 1 (32).[345] Eichhorn, Special forms of cooperation between Federation and States in the event of disasters and in maintaining national security , S. 60.[346] A.A. Knemeyer, Assignment categories in the communal field, DÖV 1988, 397 (402).[347] See BVerfGE 63, 1 (31 f.) re. BVerwG, Urt. v. 13.2.1976 – VII A 4/73, NJW 1976, 1468(1469).[348] Also e.g. § 37 BRRG.[349] Hilg, Civil service legislation, S. 94.[350] § 9 Para. 1 of the State Agreement on the Emergency Response Unit: „In the case of an impending or actual complex damage situation the leader of the Emergency Response Unit can take over management by appointment from the accident unit (right of intervention).[351] BVerfGE 63, 1 (31).[352] BVerfGE 63, 1.[353] BVerfGE 63. 1 (15).[354] Further on state of talks, Herma, in specified place, NuR 2002, 286.[355] Main Report, No. 8.[356] For Mecklenburg-Vorpommern see LT MV Drs. 3/2967 from 12.06.2002.[357] VerkBl. 1995, S. 382; see also Main Report No. 4.3.[358] E.g. exercises by the coastal States without Federation participation, joint personnel and acquisition costs to the coastal States; see details in § 10 Maritime Emergency Agreement and §§ 7 and 8 of the Agreement on Combating Marine Pollution.[359] IMO Res. A.852 (20) from 27.11.1997.[360] See above under No. 2.2.1.[361] MSC 75/2/1/Add.1 from 26.04.2002 with an account of the state of the talks.[362] NAV 48/5 from 19.03.2002.[363] Federation-States Agreement of 1995, see above, No. 5.2.5.[364] See above No. 5.2.5.[365] Schleswig-Holsteinische Landeszeitung from 12.04.2002.[366] Schiff & Hafen 2002, S. 69; Nachrichten für Seefahrer/Notices to Mariners No. 2119 from 21.12.2001 with extracts from charts and NfS 1/02, No. 4 29ff.[367] Article: Can safety really be further improved in the Kadet fairway? Schiff & Hafen 2002 No. 5, S. 61f.[368] Grobecker-Bericht, in specified place, Recommendation No. 17.[369] KOM (2001) 188 final from 06.04.2001; see also supplementary report No. 3.2.1.[370] BGBl. 1980 II S. 606.[371] 1996 Protocol to the Merchant Shipping Minimum Standards Convention No. 147 (1976), ratified up to now by Ireland, Malta, Rumania, Sweden and the United Kingdom; text under: http://ilolex.ilo.ch:1567/english/index.htm.[372] Seafarers’ Hours of Work and the Manning of Ships Convention No. 180 (1996).[373] To date Ireland, Sweden and the United Kingdom have ratified.[374] BGBl. 2002 I S. 1163.[375] EU Guideline from 1999/63 from 21.06.1999, App. EG Nr. L 167 S. 33.[376] For details see Deutsche Seeschifffahrt, magazine of the VDR 2002 No. 6 S. 1 f. and BT-Drs. No. 14/7760 from 07.12.2001.