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What to do with the detritus in the aftermath of a casualty?

What to do with the detritus in the aftermath of a casualty | BDM Blog | BDM Law

Like many other lawyers, we have been busy recently dealing with the legal problems arising from a number of ship fires.  Aside from the obvious problems of putting the fire out and getting the ship to a port of refuge, it is quite common to encounter difficulties when it comes to disposing of burned out containers, destroyed cargo, dirty water and other detritus.   The ship owner is often at the mercy of the port when it comes to dealing with these issues. The removal costs can be substantial and it is debatable as to whether they are in fact recoverable in GA.  The European Court of Justice recently dealt with the issue of waste in the context of the 2012 fire on the MSC Flaminia.  That vessel was burned out and towed to a port of refuge in Germany.  The owners wanted to send her to Romania for clean up and repair but the German environmental authorities objected on the basis that the detritus on board was “waste” subject to EU Regulation 1013/2006 (also known as the Waste Directive) meaning that various administrative procedures were required before the ship was allowed to sail.  It took seven months before the ship was permitted to sail and the owners and their insurers brought a claim against the German authorities in the German courts.  They lost but on referral to the ECJ the German Court’s decision was overturned (1).  It was held that Art.1.3(b) of the Waste Directive specifically excepted waste produced on board ships so debris from a casualty was not within the scope of the Directive.  It follows that ships stuck in EU ports no longer face the dilemma of being held to ransom by overbearing state authorities.  The position outside the EU however is potentially different.  In the past our clients have encountered many problems with local authorities in India, Bangladesh, Argentina and Brazil to name but a few.  In short, the dilemma of dealing with the detritus of a casualty remains a big problem.   The best way around the problem is to engage immediately with the local authorities to persuade them that the proposed removal plan is in their best interests.  That is the best way to get the vessel back in service and stem the losses.

  1. Conti II v Land Niedersachsen (Case C‑689/17)[2019] EUECJ C-689/17
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