Key takeaways
New rules tighten ship waste reporting duties
Operators must comply with stricter notification requirements.
Marine casualties trigger additional compliance steps
Incidents now demand prompt reporting and documentation.
Failure to notify can lead to penalties
Non-compliance risks fines and reputational damage.
Conti 11. Container Schiffahrts-GmbH & Co. KG MS ‘MSC Flaminia’ [2025] EUECJ C-188/23
On 5 February 2025, the UK Supreme Court will hear the appeal in the MSC Flaminia.
In brief, following a fire and explosions on board the Flaminia, the owners incurred various salvage and other expenses which they sought to claim from the time charterers, who were found liable for the owners’ losses arising out of the fire and explosions. The time charterers sought to limit their liability to the owners. The Admiralty Court and Court of Appeal found that they could not do so. The Supreme Court will now decide the issue. We will report on the outcome of that appeal in due course.
In the meantime, the EUECJ has also considered the Flaminia in the context of the shipment of waste and whether waste from a marine casualty comes within the relevant exceptions under EU Regulation 1013/2006 and the Basel Convention.
The regulatory context
EU Regulation 1013/2006 (the Regulation) deals with shipments of waste. Article 1 states:
"1. This Regulation establishes procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination.
3. The following shall be excluded from the scope of this Regulation:
(a) the offloading to shore of waste, including waste water and residues, generated by the normal operation of ships and offshore platforms, provided that such waste is subject to the requirements of the International Convention for the Prevention of Pollution from Ships, [signed in London on 2 November 1973, as supplemented by the Protocol of 17 February 1978] (Marpol 73/78), or other binding international instruments;
(b) waste generated on board vehicles, trains, aeroplanes and ships, until such waste is offloaded in order to be recovered or disposed of;..”
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) aims to reduce the generation of hazardous waste, applies to a wide range of wastes defined as hazardous and seeks to restrict the transboundary movement of hazardous wastes except where it is perceived to be in accordance with the principles of environmentally sound management.
Article 1(4) of the Convention states as follows:
"1. The following wastes that are subject to transboundary movement shall be “hazardous wastes” for the purposes of this Convention:
4. Wastes which derive from the normal operations of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this Convention.”
The background facts
In July 2012, a fire broke out and explosions occurred on board the German-flagged container ship Flaminia while it was transporting a number of “hazardous substances” containers.
After the fire was brought under control, in August 2012 the owners of the Flaminia obtained authorisation to tow the ship into German territorial waters. The ship was towed to Wilhelmshaven and the owners undertook with the German authorities to ensure the safe transfer of the ship to a repair yard in Romania and appropriate treatment of the substances on board.
In November 2012, the German authorities informed the owners that the ship itself and the water on board used to extinguish the fire as well as the sludge and scrap metal were to be classified as waste. Consequently, their shipment was subject to a prior written notification and consent procedure. The owners challenged this assessment but were prohibited from moving the ship before the said procedure had been completed and a verifiable waste disposal plan had been submitted. The dispute over this issue resulted in a delay of about seven months until the owners finally gave in.
Subsequently, a prior written notification and consent procedure for the shipment of the fire-extinguishing water to a Danish port was initiated and completed. The vessel sailed on 15 March 2013, with 24,000 tonnes of waste on board.
The owners subsequently sought to recover from the German authorities their costs and damages arising from having to comply with the notification procedure.
In particular, the owners relied on Article 1(3)(b) as specifically excepting waste on board ships until such time as it is later discharged for treatment. In May 2019, the EUECJ held that the exception in Article 1(3)(b) was unqualified and applied to the residues in this case. As a result, the German Court partially upheld the owners’ claim for compensation.
That decision was appealed and the appellate German Court subsequently expressed the view that this purposive interpretation of Article 1(3)(b) was in conflict with Article 1(4) of the Basel Convention.
In the German Court’s view, Article 1(4) excludes from the scope of that Convention only waste which is generated in the course of the ‘normal’ operation of a ship. Waste generated on board a ship following damage sustained by it on the high seas, however, cannot be attributed to the ‘normal’ operation of that ship.
The matter was referred to the EUECJ for a preliminary ruling.
The EUECJ preliminary ruling
The Court found that Article 1(4) of the Convention is in the nature of an exception to the application of the procedure for written notification and consent prior to the shipment of hazardous wastes or other wastes, as is provided for by that Convention.
That provision could not be interpreted in such a way as to call into question the achievement of the objectives pursued by the Convention, namely the protection of human health and the environment. The main objective of Regulation 1013/2006 was also the protection of the environment. Furthermore, the provisions of the Regulation should be read in such a way that they conformed with those of the Convention because EU law must comply with the EU’s obligations under international conventions to which it is a party.
Both the Convention and the Regulation intended to ensure the sound management of waste and the reduction of shipments of waste to a minimum consistent with the environmentally sound and efficient management of such waste. The prior written notification and consent procedure was a central element of the supervision and control of shipments of waste. It provided a framework that helped to ensure legal certainty for operators by allowing the producers and carriers of waste which was being shipped to know the extent of their obligations. It also enabled the competent national authorities to exercise their supervisory and control powers. Therefore, the exception in Article 1(3)(b) should be interpreted restrictively.
In those circumstances, the Court held that:
where waste was generated on board a vessel after it had sustained damage on the high seas; and
part of that waste had been offloaded in a safe port in order to be recovered or disposed of; then
the waste remaining on board the vessel in order to be shipped, together with that vessel, for recovery or disposal, could not be excluded from the scope of the Regulation, on the basis of Article 1(3)(b).
This interpretation of Article 1(3)(b) was in conformity with what was provided for in Article 1(4) of the Convention because it did not compromise the objective of protecting human health and the environment pursued by the Convention.
The EUECJ added that it could be presumed that, following the offloading of part of the overall mass of waste generated on the Flaminia, the owners were reasonably in a position to have information concerning the quantity and nature of the waste remaining on that vessel, with a view to organising its environmentally sound management and ensuring that shipments of it are reduced to a minimum, consistent with such management.
Comment
The preliminary ruling reflects the increasingly strict regulatory environment surrounding pollution from ships and provides useful clarification of the status of ship waste generated following a marine casualty.
The Hong Kong Convention, addressing the safe and environmentally sound recycling of ships, will enter into force on 26 June 2025. No doubt, the Hong Kong Convention will also raise issues relating to scope and interpretation of its provisions.
