Legal provisions of COM(1998)71 - Conditions for the operation of regular ro-ro ferry and high speed passenger craft services in the EC

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dossier COM(1998)71 - Conditions for the operation of regular ro-ro ferry and high speed passenger craft services in the EC.
document COM(1998)71 EN
date April 29, 1999


Contents

Article 1 - Purpose

The purpose of this Directive is to lay down a system of mandatory surveys which will provide a greater assurance of safe operation of regular ro-ro ferries and high-speed passenger craft services to or from ports in the Member States of the Community and to provide for the right of Member States to conduct, participate in or cooperate with any investigation of maritime casualties or incidents on these services.

Article 2 - Definitions For the purpose of this Directive and its Annexes,

(a) 'ro-ro ferry' shall mean a seagoing passenger vessel with facilities to enable road or rail vehicles to roll on and roll off the vessel, and carrying more than 12 passengers;

(b) 'high-speed passenger craft' shall mean a high-speed craft as defined in Regulation 1 of Chapter X of the 1974 SOLAS Convention, as amended on the date of the adoption of this Directive, which carries more than 12 passengers;

(c) 'a passenger' is every person other than:

(i) the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship, and

(ii) a child under one year of age;

(d) '1974 SOLAS Convention' shall mean the International Convention for the Safety Of Life At Sea, together with Protocols and amendments thereto, in force on the date of adoption of this Directive;

(e) 'High-speed Craft Code' shall mean the 'International Code for Safety of High-speed Craft' contained in IMO Maritime Safety Committee Resolution MSC 36 (63) of 20 May 1994, as amended on the date of the adoption of this Directive;

(f) 'regular service' shall mean a series of ro-ro ferry or high-speed passenger craft crossings operated so as to serve traffic between the same two or more ports, or a series of voyages from and to the same port without intermediate calls, either:

(i) according to a published timetable; or

(ii) with crossings so regular or frequent that they constitute a recognisable systematic series;

(g) 'sea area' shall mean any sea area included in a list established in accordance with Article 4 of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships(8);

(h) 'certificates' shall mean:

(i) for ro-ro ferries and high-speed passenger craft engaged on international voyages, the safety certificates issued under the 1974 SOLAS Convention as amended, together with the relevant records of equipment and where appropriate exemption certificates and permits to operate;

(ii) for ro-ro ferries and high-speed passenger craft engaged on domestic voyages, the safety certificates issued in accordance with Directive 98/18/EC together with the relevant records of equipment and where appropriate exemption certificates and permits to operate;

(i) 'exemption certificate' shall mean any certificate issued under the provisions of Regulation I B/12(a)(vi) of the 1974 SOLAS Convention;

(j) 'administration of the flag State' shall mean the competent authorities of the State whose flag the ro-ro ferry or the high-speed passenger craft is entitled to fly;

(k) 'host State' shall mean a Member State to or from whose port(s) a ro-ro ferry or a high-speed passenger craft is engaged on a regular service;

(l) 'international voyage' shall mean a voyage by sea from a port of a Member State to a port outside that Member State, or conversely;

(m) 'domestic voyage' shall mean a voyage in sea areas from a port of a Member State to the same or another port within that Member State;

(n) 'recognised organisation' shall mean an organisation recognised in accordance with Article 4 of Directive 94/57/EC;

(o) 'company' shall mean a company operating one or more ro-ro ferries to which a document of compliance has been issued in compliance with Article 5(2) of Council Regulation (EC) No 3051/95 of 8 December 1995 on the safety management of roll on/roll off passenger ferries (ro-ro ferries)(9) or a company operating high-speed passenger craft, to which a document of compliance has been issued in accordance with Regulation IX/4 of the 1974 SOLAS Convention, as amended on the date of adoption of this Directive;

(p) 'Code for the investigation of marine casualties' shall mean the Code for the investigation of marine casualties and incidents adopted by the IMO by means of Assembly Resolution A.849(20) of 27 November 1997;

(q) 'specific survey' shall mean a survey by the host State as specified in Articles 6 and 8;

(r) 'qualified inspector' shall mean a public-sector employee or other person, duly authorised by the competent authority of a Member State to carry out surveys and inspections related to the certificates and fulfilling the criteria of qualification and independence specified in Annex V;

(s) 'deficiency' shall mean a condition found not to be in compliance with the requirements of this Directive.

Article 3 - Scope

1. This Directive shall apply to all ro-ro ferries and high-speed passenger craft operating to or from a port of a Member State on a regular service, regardless of their flag, when engaged on international voyages or on domestic voyages in sea areas covered by Class A as referred to in Article 4 of Directive 98/18/EC.

2. Member States may apply this Directive to ro-ro ferries and high-speed passenger craft engaged on domestic voyages in sea areas other than those referred to in paragraph 1. In those circumstances the relevant rules shall be applied to all ro-ro ferries or high-speed passenger craft operating under the same conditions, without discrimination in respect of flag, nationality or place of establishment of the company.

Article 4 - Initial verifications required in relation to ro-ro ferries and high-speed passenger craft

1. Prior to the start of operation by a ro-ro ferry or high-speed passenger craft on a regular service, or within 12 months of the date referred to in Article 19(1) for a ro-ro ferry or high-speed passenger craft already operating a regular service on that date, host States shall check that ro-ro ferries and high-speed passenger craft:

(a) carry valid certificates, issued by the administration of the flag State or by a recognised organisation acting on its behalf;

(b) have been surveyed for the issue of certificates in accordance with the relevant procedures and guidelines annexed to IMO Assembly Resolution A.746(18) on survey guidelines under the harmonised system of survey and certification, as they stand at the time of adoption of this Directive or with procedures designed to achieve the same goal;

(c) comply with the standards specified for classification by the rules of a recognised organisation, or rules accepted as equivalent by the administration of the flag State for construction and maintenance of their hull, machinery and electrical and control installation;

(d) are fitted with a voyage data recorder (VDR) for the purpose of providing information for the benefit of a possible casualty investigation. The VDR shall meet the performance standards of IMO Assembly Resolution A.861(20) of 27 November 1997 and comply with the testing standards laid down in International Electrotechnical Commission (IEC) standard No 61996. However, for VDRs to be placed on board ro-ro ferries and high-speed passenger craft built before the entry into force of this Directive, exemptions for compliance with some of the requirements may be granted. These exemptions and the conditions under which they can be granted shall be adopted in accordance with the procedure laid down in Article 16;

(e) comply with specific stability requirements adopted at regional level, and transposed into their national legislation in accordance with the notification procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services(10), when operating in that region a service covered by that national legislation, provided those requirements do not exceed those specified in the Annex on Resolution 14 (Stability Requirements Pertaining to the Agreement) of the 1995 SOLAS Conference and have been notified to the Secretary-General of the IMO, in accordance with the procedures specified in point 3 of that resolution.

2. Paragraph 1(e) shall apply to high speed passenger craft only where appropriate.

Article 5 - Initial verifications required in relation to companies and flag States

Prior to the start of operation by a ro-ro ferry or high-speed passenger craft on a regular service, or within 12 months of the date referred to in Article 19(1) for a ro-ro ferry or high-speed passenger craft already operating on a regular service on that date, host States shall:

1. check that companies which operate or intend to operate such a ferry or craft on regular service:

(a) take the necessary measures to ensure that the specific requirements laid down in Annex I are applied and provide the evidence of compliance with this paragraph and with Article 4 to the host States involved in the regular service;

(b) will agree in advance that host States and any substantially interested Member State may conduct, participate fully in or cooperate with any investigation of a marine casualty or incident in accordance with Article 12, and will give them access to the information retrieved from the VDR of their ferry or craft involved in such a casualty or incident.

2. Check for such a ferry or craft flying a flag other than that of a Member State, the concurrence of that flag State that it has accepted the company's commitment to meet the requirements of this Directive.

Article 6 - Initial specific surveys

1. Prior to the start of operation by a ro-ro ferry or high-speed passenger craft on a regular service, or within 12 months of the date referred to in Article 19(1) for a ro-ro ferry and high-speed passenger craft already operating a regular service on that date, host States shall carry out an initial specific survey, in accordance with Annexes I and III, to satisfy themselves that the ro-ro ferry or high-speed passenger craft fulfils the necessary requirements for safe operation of a regular service.

2. Where this Article is applied prior to the start of operation, host States shall set a date for the initial specific survey which is no more than one month after receipt of the evidence necessary to complete the verification under Articles 4 and 5.

Article 7 - Special provisions

1. When a ro-ro ferry or high-speed passenger craft is to be engaged on another regular service, a new host State shall take the utmost account of verifications and surveys previously carried out for that ferry or craft for operation on a previous regular service covered by this Directive. Provided that the new host State is satisfied with these previous verifications and surveys and that they are relevant to the new operational conditions, Articles 4, 5 and 6 need not be applied prior to the ro-ro ferry or high-speed passenger craft starting operation on the new regular service.

2. Articles 4, 5 and 6 need not apply when a ro-ro ferry or high-speed passenger craft which complies with this Directive already operating a regular service covered by this Directive transfers to another regular service covered by this Directive transfers to another regular service where the route characteristics are agreed by the relevant host States to be similar, and the host States all agree that the ro-ro ferry or high-speed passenger craft fulfils all the requirements for safe operation on that service.

At the request of a company, the host States concerned may confirm in advance their agreement as to where route characteristics are similar.

3. In cases where, following unforeseen circumstances, a replacement ro-ro ferry or high-speed passenger craft must be introduced rapidly to ensure continuity of service, and paragraphs 1 and 2 are not applicable, the host State may allow the ferry or craft to start operating provided that:

(a) a visual inspection and document check raise no concerns that the ro-ro ferry or high-speed passenger craft does not fulfil the necessary requirements for safe operation, and

(b) the host State completes the verifications and surveys under Articles 4, 5 and 6 within one month.

Article 8 - Regular specific surveys and other surveys

1. Host States shall, once in every 12-month period, carry out:

- a specific survey, in accordance with Annex III, and

- a survey during a regular service, which shall aim to cover enough items listed in Annexes I, III and IV in order to satisfy the host State that the ferry or craft continues to fulfil all the necessary requirements for safe operation.

An initial specific survey in accordance with Article 6 counts as a specific survey for the purposes of this Article.

2. A host State shall carry out a specific survey in accordance with Annex III each time the ro-ro ferry or high-speed passenger craft undergoes repairs, alterations and modifications of a major character, or when there is a change in management or flag, or a transfer of class. However, in case of change in management or flag, or transfer of class, the host State may, after taking account of verifications and surveys previously issued for the ferry or craft, and provided that the safe operation of the ferry or craft is not affected by this change or transfer, dispense the ferry or craft from the specific survey required by this paragraph.

3. Should the surveys referred to in paragraph 1 confirm or reveal deficiencies in relation to the requirements of this Directive warranting a prevention of operation, all costs relating to the surveys in any normal accounting period shall be covered by the company.

Article 9 - Notification

Host States shall inform companies promptly, in writing, of the outcome of verifications and surveys under Articles 4, 5, 6 and 8.

Article 10 - Prevention of operation

1. A host State shall prevent the operation of a ro-ro ferry or high-speed passenger craft on a regular service:

(a) when it has been unable to confirm compliance with the requirements in Articles 4 and 5;

(b) whenever deficiencies are found during the surveys referred to in Articles 6 and 8 which pose an immediate danger to life, the ferry or craft, its crew and passengers;

(c) when there is an established failure to comply with the Community instruments listed in Annex II which poses an immediate danger of life, the ferry or craft, its crew and passengers;

(d) whenever it has not been consulted by the flag State on the matters referred to in Article 13(1) or (5),

until the host State has established that the danger has been removed and the requirements of the Directive are met.

The host State shall inform the company in writing of the decision to prevent that ro-ro ferry or high-speed passenger craft operating, giving full reasoning.

2. However, where the ro-ro ferry or high-speed passenger craft is already operating a regular service and deficiencies are established, host States shall require the company to take the necessary measures for their prompt rectification or within a well-defined and reasonable period of time, provided they do not pose an immediate danger to the safety of the ferry or craft, its crew and passengers. After rectification of the deficiencies, the host States concerned shall verify that the rectification has been carried out to their full satisfaction. If this is not the case, they shall prevent the ferry or craft from operating.

3. Member States shall, in accordance with national legislation, establish and maintain appropriate procedures covering the right of appeal by a company against a decision to prevent operation. Appeals should be dealt with expeditiously. An appeal shall not cause the decision to be automatically suspended.

The competent authority shall duly inform the company of its right of appeal.

4. In cases where Articles 4, 5 and 6 are applied prior to the start of operation by a ro-ro ferry or high-speed passenger craft on a regular service, a decision to prevent a ship operating must be taken within one month of the initial specific survey and communicated to the company immediately.

Article 11 - Procedures related to initial and regular specific surveys

1. Ro-ro ferries and high-speed passenger craft that have been subject to the specific surveys to the satisfaction of the involved host State(s) shall be exempted by these host State(s) from expanded inspections referred to in Article 7(4) of Directive 95/21/EC and from expanded inspections based on the clear grounds that they belong to the category of passenger ships referred to in Article 7(1) and Annex V.A.3 of that Directive.

2. Administrations of two or more host States involved in a specific survey of the same ship or craft shall cooperate with each other. The specific surveys shall be carried out by a team composed of qualified inspectors of the involved host State(s). Wherever there is a need for qualitative assessment of the fulfilment of class-related provisions, host States shall ensure the necessary expertise is included in the team, where appropriate by including a surveyor of a recognised organisation. The inspectors shall report deficiencies to the administrations of the host States. The host State shall communicate this information to the flag State, if that State is not a host State involved in the survey.

3. An involved host State may agree to carry out a survey at the request of another involved host State.

4. Host States, when requested by companies, shall invite the administration of the flag State which is not a host State to be represented in any specific survey under the provisions of this Directive.

5. Host States, in planning a survey in accordance with Articles 6 and 8, shall take due account of the operational and maintenance schedule of the ferry or craft.

6. The findings of the specific surveys shall be recorded in a report of which the format shall be established in accordance with the procedure laid down in Article 16.

7. In case of persistent disagreement between host States on the fulfilment of the requirements of Articles 4 and 5(1), the administration of any host State involved in a specific survey shall immediately notify to the Commission the reasons of the disagreement.

8. The Commission shall immediately start proceedings in order to take a decision in accordance with the procedure laid down in Article 16.

Article 12 - Accident investigation

1. Member States shall define, in the framework of their respective internal legal systems, a legal status that will enable them and any other substantially interested Member State to participate, to cooperate in, or where provided for under the Code for the investigation of marine casualties, to conduct any marine casualty or incident investigation involving a ro-ro ferry or high-speed passenger craft.

2. 'Substantially interested State', 'lead investigating State' and 'marine casualty' shall have the same meaning as in the Code for the investigation of marine casualties.

3. When a ro-ro ferry or high-speed passenger craft is involved in a marine casualty, the investigation procedure shall be launched by the State in whose waters the accident or incident occurs or, if in other waters, by the last Member State visited by the ferry or craft. This State shall remain responsible for the investigation and coordination with other substantially interested States until such time as it is mutually agreed which is to be the lead investigating State.

4. Member States conducting, participating in or cooperating with such investigations shall ensure that the investigation is concluded in the most efficient way and within the shortest possible time taking into account the Code for the investigation of marine casualties.

5. Member States shall ensure that reports resulting from such an investigation are made public in accordance with point 12.3 of the Code for the investigation of marine casualties and notified to the Commission.

Article 13 - Accompanying measures

1. Member States issuing or recognising an exemption certificate shall work together with the involved host State or administration of the flag State to resolve any disagreement concerning the suitability of the exemptions prior to the initial specific survey.

2. Member States should operate shore-based navigational guidance systems and other information schemes in accordance with IMO Resolution A.795(19) to assist ro-ro ferries and high-speed passenger craft in the safe conduct of the regular service, or part of it, for the safety of which they bear responsibility.

3. Each Member State shall provide to the Commission copies of the survey reports referred to in Article 11(6), with the IMO identification number where applicable. The Commission may, in accordance with the procedure laid down in Article 16, decide on appropriate means for allocating an identification number to other vessels. If two or more host States are involved in the regular service, the data may be provided by one of these host States. The Commission shall set up and maintain a database containing the information provided. Conditions of access to the database shall be decided in accordance with the procedure laid down in Article 16.

4. Member States shall ensure that companies operating ro-ro ferries or high-speed passenger craft on regular services to or from their ports are able to maintain and implement an integrated system of contingency planning for shipboard emergencies. To this end they shall make use of the framework provided by IMO Assembly Resolution A.852(20) on guidelines for a structure of an integrated system of contingency. If two or more Member States are involved as host States in the regular service they shall jointly establish a plan for the different routes.

5. Member States shall ensure that they have been fully involved in their capacity as host State by the administration of the flag State, before the issuance of the permit to operate high speed craft, in accordance with the provisions of paragraph 1.9.3 of the High-speed Craft Code. They shall ensure that operational restrictions required by local situations, necessary to protect life, natural resources and coastal activities are established or maintained and they shall take measures to ensure the enforcement of these restrictions.

Article 14 - Cooperation between host States

Host States involved in the same regular service shall liaise with each other when applying this Directive.

Article 15 - Supporting measures

The Member States shall inform third States which have either flag State responsibilities or responsibilities similar to those of a host State for ro-ro ferries and high-speed passenger craft falling under the scope of this Directive and operating between a port of a Member State and a port of a third State of the requirements imposed by this Directive on any company providing a regular service to or from a port of the Community.

Article 16 - Regulatory committee

1. The Commission shall be assisted by the committee set up under Article 12(1) of Directive 93/75/EEC.

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

3. (a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.

(b) If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority. If, on the expiry of eight weeks from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.

Article 17 - Amendment procedure

In accordance with the procedure laid down in Article 16:

(a) the Annexes,

(b) the definitions,

(c) references to Community instruments,

(d) references to IMO resolutions,

may be amended to the extent necessary to bring them into line with Community or IMO measures which have entered into force, but without broadening the scope of this Directive.

The Annexes may also be amended in accordance with the procedure laid down in Article 16 when it is necessary to improve the arrangements established by this Directive, but without broadening its scope.

Article 18 - Penalties

Member States shall lay down the system of penalties for breaching the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided for shall be effective, proportionate and dissuasive.

Article 19 - Application

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 December 2000 and forthwith inform the Commission thereof.

2. The provisions of Article 4(1)(d) shall be applied no later than 30 months after the publication date of IEC standard No 61996 or by 1 January 2001, whichever of these dates comes later.

3. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

4. The Member States shall immediately notify to the Commission all provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.

Article 20 - Assessment of application

Three years after the date referred to in Article 19(1), the Commission shall assess, on the basis of information to be provided by the Member States in accordance with Article 13, the application of this Directive.

Article 21 - Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 22 - Adressees

This Directive is addressed to the Member States.