Don’t say it too loudly, especially when there’s a European listening, but yesterday’s CJEU decision in The Alexandros T (C-590/21)  EUECJ C-590/21 might make some English lawyers a bit more relieved that Brexit happened. Put simply, the EU court has held that just as under EU law you can’t get an anti-suit injunction in an EU court preventing suit elsewhere in Europe, you equally can’t sue a litigant for damages for bringing suit there in breach of contract. But this will not affect any ost-2021 proceedings here.
The Alexandros T, a Capesize bulker of 172,000 dwt, will be familiar to most readers. She sank off South Africa in 2006, taking with her 26 crew and a large cargo of Brazilian iron ore destined for China. Her hull insurers were initially not entirely convinced about the resultant claim against them, but around Christmas 2007 paid a sum in settlement under an agreement governed by English law. That agreement provided for a release of the underwriters and everyone associated with them and contained a London jurisdiction clause in respect of any dispute.
Little did the underwriters know that this was not the end, but – this being well before Brexit – rather the beginning of a massive game of juridical Euro-ping-pong.
Four years after the settlement, Alexandros T’s owners Starlight brought proceedings in Greece against the underwriters and also Charles Taylor, a marine insurance consultancy that had acted for them. They claimed big money on the basis that the underwriters and others had indulged in skulduggery in defending the claim, and had acted tortiously in blackening Starlight’s name and causing it serious losses.
Unable to get an anti-suit injunction because of settled EU law based on the full faith and credit principle, the underwriters countered by suing Starlight in England for damages for breach of the settlement agreement (i.e. the costs of defending, and anything they were forced to pay under, the Greek suit). Starlight attempted to invoke the Greek proceedings to stop these latter proceedings in their tracks under the lis alibi pendens provisions of what was then Art.27 of Brussels I (now Art.29 of Brussels I Recast). However they failed, it being held by the Supreme Court that the claims were merely related and did not involve the same subject-matter, and that the new claims should be allowed to go forward. (See The Alexandros T  UKSC 70;  1 Lloyd’s Rep. 223.) The underwriters duly proceeded, and Burton J’s judgment giving damages against Starlight was upheld by the Court of Appeal in July 2014 in Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG  EWCA Civ 1010;  2 Lloyd’s Rep. 544.
Having got this judgment, the underwriters took the battle to the enemy and sought to have it recognised in Greece. The Piraeus Court of Appeal refused recognition, holding in 2019 that it would be manifestly contrary to public policy under Art.34 of Brussels I (Recast Art.45). The Areios Pagos, the Greek Supreme Court, sought the opinion of the CJEU.
Yesterday that court, in a short (by EU standards) judgment, went against the underwriters. It said, first, that a claim for damages for suing in another EU court, being dissuasive of the maintenance of EU proceedings and aimed at impeding them, was no more permissible under the Brussels I scheme than a claim for an anti-suit injunction (see ). It then went on to say that this factor provided ample justification for a court in the EU to say that to enforce or recognise a judgment arising out of such a claim was manifestly contrary to EU (and hence national) public policy. It therefore gave a green light to the Greek courts to refuse recognition of the 2014 judgment, something which will no doubt formally take place in the not too distant future.
Fairly predictable was the holding that claims for damages for suing in an EU court were prohibited by Brussels I, contrary to English decisions the other way – notably West Tankers Inc v Allianz SpA  EWHC 854 (Comm);  2 Lloyd’s Rep. 103. A combination of post-Brexit Schadenfreude, the court’s highly sensitive political antennae, and its ingrained instinct for centralisation of power Brussels-ward whenever possible, saw to that. But in respect of post-Brexit proceedings it is not now very important: such actions for damages continue available in England whatever Brussels says, and the betting must now be that the UK will never again sign up to any jurisdictional framework in the Brussels-Lugano mould.
That leaves the holding that judgments obtained here for damages are not portable to Europe by way of recognition. This raises two issues.
First, it will make the enforcement of judgments like that in The Alexandros T slightly harder – though perhaps this difficulty should not be exaggerated, since most of those involved in international trade will at some time want to deposit monies in London which can then be the subject of execution proceedings.
Secondly, there is a nice issue whether the EU position would survive a UK ratification of the 2019 Hague Judgments Convention, which by Art.7(1)(c) contains a similar public policy let-out. You might think it did: but matters aren’t as simple as that. Unlike Brussels I, the Hague Convention is not an EU instrument and it is therefore not automatically subject to overriding EU public policy considerations to the same extent. It is certainly possible that the EU would be in breach of Hague if the CJEU decided that judgments given in non-EU courts for damages for suing in EU courts were automatically excluded from its ambit as they are from Brussels I. We’ll just have to wait and see.
At last, we no longer lack functional global rules for the recognition and enforcement of judgments. Only a couple of days ago, on 1 September 2023, the Hague Judgments Convention 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (HJC) entered into force. This is a momentous event for private international law and a real game-changer for international dispute resolution. With its entry into force, the HJC can now be utilised by commercial parties and contribute to a swift resolution of disputes by shortening expenses and timeframes for the recognition and enforcement of a foreign judgment in other jurisdictions. Having adopted the HJC, the Hague Conference achieved its target to guarantee the effectiveness of court judgments similar to arbitral awards as ensured by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
A year ago and almost around the same time we provided some comments on the provisions of the Convention determining the procedure for becoming effective (see here: Hague Judgments Convention to enter into force! – The Institute of International Shipping & Trade Law (IISTL) Blog). According to Articles 28 and 29 of the HJC, the Convention shall enter into force on the first day of the month following the expiration of the twelve months after the second State has deposited its instrument of ratification, acceptance, approval, or accession. On this occasion, the Convention was ratified by Ukraine and the EU on 29 August 2022, and now has a force of law for both. In addition, Uruguay ratified the treaty on 1 September, and it will come into force for the latter 12 months later.
The HJC provides recognition and enforcement of judgments given in cross-border civil and commercial cases, excluding the carriage of passengers and goods, transboundary marine pollution, marine pollution in areas beyond national jurisdiction, ship-source marine pollution, limitation of liability for maritime claims, and general average. That being said, the HJC is not an ideal framework and does not include every issue that might arise from civil and commercial cases. Yet, it complements the HCCCA not only by sharing the same objectives but also by covering judgments given by non-exclusively designated courts; therefore, it indeed serves party autonomy and ensures the effectiveness of an entire range of choice of court agreements.
The Convention further contributes to certainty and access to justice post-Brexit since it is the only international treaty providing rules for the recognition and enforcement of judgments in cross-border commercial disputes. However, the UK has not ratified the Convention yet and even if it does, the Convention will enter in and for the UK only twelve months after the date it deposits an instrument of ratification. Following the analysis, the Government will make its final decision on becoming a Contracting State to the HJC and on whether to make any reservations. If signed and ratified, the Convention would be implemented in domestic law under the terms of the Private International Law (Implementation of Agreements) Act 2020, subject to appropriate parliamentary scrutiny. Indeed, if ratified, the HJC will not only contribute to access to justice and effectiveness of judgments involving EU-related civil and commercial cases but also the UK’s global judicial cooperation with the other Hague Contracting States will be enhanced. For the previous post related to the UK’s plans to ratify the HJC see: The Ball is Rolling: The UK to ratify the Hague Judgments Convention? – The Institute of International Shipping & Trade Law (IISTL) Blog.
Yet, we must admit the HJC leaves significant matters unresolved. Besides excluding extremely important commercial matters from its application scope, the Convention does not contain any specific regulation of parallel proceedings, lis pendens, and related actions – the famous yet infamous Brussels terminology. In this regard, there is a hope that the Hague Conference will succeed in its Jurisdiction Project. Indeed, if the latter is achieved the three Conventions might well function together and provide safeguards for international commercial parties and global justice.
Two more ‘Fit for 55’ measures that will affect maritime transport have now reached the legislative finishing line with approval by the Council on 25 July 2023. The new rules will be published in the Official Journal of the European Union and enter into force 20 days after publication.
FuelEU Maritime sets maximum limits on the yearly greenhouse gas intensity of the energy a ship uses, covering CO2, methane and nitrous oxide emissions over the full lifecycle of the fuels and applies to all commercial vessels of 5,000 gross tonnes with exemptions for naval vessels, fishing vessels, and ships using non-mechanical propulsion. It covers all energy used on board when the ship is at the port, all energy used on voyages between EU ports and 50% of the energy used on voyages departing from or arriving at an EU port. The reduction schedule from a 2020 baseline is -2 per cent from 2025; -6 per cent from 2030; -14.5 per cent from 2035; -31 per cent from 2040; -62 per cent from 2045; -80 per cent from 2050. Offsetting emissions credits are given to those ship owners who use renewable fuels of non-biological origin (RFNBO) from 2025 to 2034, and a 2 per cent renewable fuels usage target as of 2034 will be set if the Commission reports that in 2031 RFNBOs amount to less than 1 per cent in fuel mix. There are also similar provisions to those in the ETS regarding evasive container transhipments from ports less than 300 nautical miles from an EU port, with the Commission to provide the first list of such ports before 31 December 2025.
From January 2030, container ships and passenger ships at EU ports will also have to connect to the onshore power supply and use it for all energy needs while at berth at quayside in TEN-T core and comprehensive network ports or use alternative zero-emission technologies. From January 2035, this will apply to container ships and passenger ships at quayside in all EU ports where the quay is equipped. Whether this onshore power supply will be provided from green sources remains to be seen.
The responsibility for compliance lies with the “company”, defined in the same way as the ‘shipping company’ in the amend MRV Regulation and the amended ETS Directive. Shipping companies must submit to verifiers a standardised emissions monitoring plan for each of their vessels by 31 August 2024. Their records must contain the ‘well to wake’ emissions factors for each type of fuel used at berth and sea. At the end of April each year, shipping companies must submit their data, including that already reported for MRV regulation. There are harmonised penalties for non-compliance with the requirements on both the greenhouse gas intensity content and the connection to onshore electricity. The Regulation provides for a voluntary pooling mechanism under which ships will be allowed to pool their compliance balance with one or more other ships, thereby making it the overall pool that has to meet the greenhouse gas intensity limits on average.
FuelEU Maritime also recognises the polluter pays’ principle, providing in Article 23(8): “The company shall remain responsible for the payment of the FuelEU penalties, without prejudice to the possibility for the company to conclude contractual agreements with the commercial operators of the ship that provide for the liability of the commercial operators to reimburse the company for the payment of the FuelEU penalties, when the responsibility for the purchase of the fuel or the operation of the ship is assumed by the commercial operator. For the purposes of this paragraph, operation of the ship shall mean determining the cargo carried, the route and the speed of the ship.” There is a similar provision in Article 23(9) with regard to contracts with fuel suppliers. Unlike the costs of surrendered ETS allowances in the revised ETS Directive, there is no provision for any statutory right of pass-through from the company to the time charterer of penalties in Article 23(8) and (9).
Regulation on the deployment of alternative fuels infrastructure (AFIR). This amends the Directive on the Deployment of Alternative Fuels Infrastructure 2014/94/EU (DAFI) to require Member States to take necessary measures to ensure that minimum shore-side electricity supply for seagoing container and passenger ships is provided in maritime ports by 1 January 2030. Additionally, Article 11 requires Member States to ensure that an ‘appropriate’ number of refuelling points for liquified methane ‘liquefied methane’ are put in place at TEN-T core maritime ports by 31 December 2024. On 19 October 2022, the Parliament proposed adding hydrogen and ammonia to the core network of refuelling points for LNG at maritime ports by 2025 but this does not appear in the final text of the Regulation. Instead Article 14 requires Member States to develop draft a national policy framework for developing alternative fuels for transport, containing various elements, in particular (k) “an overview of the state of play, perspectives and planned measures in respect of the deployment of alternative fuels infrastructure in maritime ports other than for liquefied methane and shore-side electricity supply for use by seagoing vessels, such as for hydrogen, ammonia, methanol and electricity.”
Over the past three years the EU has become involved in developing legislation to deal with the operation of Artificial Intelligence (AI) in the Union. There are three strands to this legislation: the overall regulatory AI Act; the updating of the 1986 Product Liability Directive; addressing civil liability arising out of the operation of AI systems. On 22 October 2020 the European Parliament sent a draft regulation to the Commission for a new strict liability regime for operators of AI systems. The Parliament’s proposal was followed on 28 September 2022 by the European Commission’s proposal for the AI Liability Directive along with a proposed updating of the 1986 Product Liability Directive. This blog pointed out that the proposed Regulation could lead to a confusing overlap with maritime strict liability regimes in the context of vessels at MASS 3 and 4.
Unlike the Parliament’s proposal of October 2020, the Commission’s proposal is framed as a Directive, and contains no substantive rules regarding liability arising out of use of an AI system. Instead, the proposed Directive applies to non-contractual fault-based civil law claims for damages, in cases where the damage caused by an AI system occurs after the end of the transposition period, but the Directive lays down two sets of common rules.
First, Article 3 deals with the disclosure of evidence on high-risk artificial intelligence (AI) systems to enable a claimant to substantiate a non-contractual fault-based civil law claim for damages.
Second, Article 4 deals with the burden of proof in establishing causality in non-contractual fault-based civil law claims brought before national courts for damages caused by an AI system. For the presumption of causality to apply, the fault of the defendant should be established as a human act or omission which does not meet a duty of care under Union law or national law that is directly intended to protect against the damage that occurred. It should also be necessary to establish that it can be considered reasonably likely, based on the circumstances of the case, that the fault has influenced the output produced by the AI system or the failure of the AI system to produce an output and the claimant should still be required to prove that the output or failure to produce an output gave rise to the damage.
However, fault still has to be proved under the applicable Union or national laws, although fault can be established in respect of non-compliance with Union rules which specifically regulate high-risk AI systems. It is likely that in the future such rules will apply to vessels at MASS 3 and 4 for entry into ports and the territorial sea of Member States. The Directive does not affect rules of Union law regulating conditions of liability in the field of transport. With maritime transport the only such rules of Union law concerning fault based civil law claims would be Directive 2009/20/EC on the insurance of shipowners for maritime claims.
Art 5 provides for the Commission to submit a report to the Parliament, the Council, and the Economic and Social Committee, assessing the Directive’s achievement five years after its transposition. In particular, that review should examine whether there is a need to create no-fault liability rules for claims against the operator combined with a mandatory insurance for the operation of certain AI systems, as suggested by the European Parliament resolution of 20 October 2020 on a civil liability regime for artificial intelligence.
The restriction to fault-based liability regimes means that, in relation to MASS 3 and 4 vessels operating with the territory of the Union, the proposed Directive will have no application to the two current strict liability pollution regimes, the CLC and the Bunkers Convention, and will have no application to the HNS regime when it eventually comes into force. It will, though, have application in the Member States to fault based tort claims such as general pollution claims and collision claims, as regards the rebuttable presumption of a causal link in the case of fault provided for in Art 4, and almost certainly as regards the evidential provisions in Art 3 if MASS 3 and 4 vessels are eventually classified as ‘high risk’.
The proposed Directive now has to go back to the Parliament and the Council, and may well be subject to amendment. The European Economic and Social Committee (EESC) adopted an opinion on the proposal on 25 January 2023 broadly welcoming the proposal but insisting upon clear legal definitions, calling upon the Commission to closely monitor the development of financial guarantees or insurance covering AI liability and recommending the Directive be reviewed three years after entry into force.
The EU’s inclusion of shipping in the ETS comes into effect on 1 January under DIRECTIVE (EU) 2023/959 of 10 May 2023. The amended directive will also affect the position of storage of captured emissions from a registered emitter. Previously, a registered emitter was under no obligation to surrender allowances in respect of emissions which are verified as captured and transported by pipeline to a storage facility, authorised in accordance with the CCS Directive. The amended ETS Directive now removes the previous requirement that CCS had to be transported by pipeline to a storage facility. The reference to CCS in the table to Annex I to Directive 2003/87/EC is amended so as to read “Transport of greenhouse gases for geological storage in a storage site permitted under Directive 2009/31/EC, with the exclusion of those emissions covered by another activity under this Directive.”
This is amplified by article 69 of the Preamble which states:
“As CO2 is also expected to be transported by means other than pipelines, such as by ship and by truck, the current coverage in Annex I to Directive 2003/87/EC for transport of greenhouse gases for the purpose of storage should be extended to all means of transport for reasons of equal treatment and irrespective of whether the means of transport are covered by the EU ETS. Where the emissions from the transport are also covered by another activity under Directive 2003/87/EC, the emissions should be accounted for under that other activity to prevent double counting.”
This means that captured carbon from a registered emitter can now be transported a permitted storage facility by ship without the emitter being obliged to surrender allowances in respect of its captured emissions.
As for the UK and its ETS scheme, on Monday 3 July the UK government announced that: domestic shipping for vessels above 5000 grt will be required to participate in the UK’s Emissions Trading Scheme starting in 2026.
The government would also: expand the existing scope of the scheme to create a level playing field between operators who use pipeline and non-pipeline modes of transportation of CO2, working with key regulatory partners to establish how Non-Pipeline Transport (NPT) should best be integrated into the existing UK ETS framework; and review its policy of expanding the UK ETS to methane emissions from upstream oil and gas and other traded sectors.
On 16 May 2023 the Official Journal published Directive 2023/959, amending the 2003 ETS Directive, and Regulation 2023/957 amending the 2015 MRV Regulation. Shipping will enter the ETS as from 1 January 2024 as regards CO2 emissions, and from 1 January 2026 as regards emissions from two other greenhouse gases, Methane and Nitrous Oxide. The reporting obligations under the MRV will be extended from CO2 to these other two greenhouses gases as from1 January 2024. The emissions in both measures will be calculated on a tank to wake basis rather than on a wake to wake basis.
The amended ETS Directive
Vessels over 5000 gross tonnage for transporting for commercial purposes cargo or passengers will come within the scope of the EU ETS as from 1 January 2024, with a phased introduction of obligations for the shipping company to surrender each year 100% of allowances for verified CO2 emissions for intra-EU voyages within the ETS and emissions occurring at berth in an EU port, and 50% of verified CO2 emissions for extra-EU voyages from and to a port within the jurisdiction of a Member State. The phase-in means that 40% (20% for extra-EU voyages) allowances will need to be surrendered for calendar year 2024, 70% for 2025 (35%) and 100% (50% for extra-EU voyages) for 2026 and onwards. There will be no free allocation of allowances to shipping companies, which are defined as the shipowner, or the bareboat charterer or ship manager, that has assumed the responsibility for the operation of the ship from the shipowner and that, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the IMO’s ISM Code.
Emissions are calculated on a tank to wake basis as defined in amended Article 3 ‘(b)“emissions” means the release of greenhouse gases… from ships performing a maritime transport activity listed in Annex I of the gases specified in respect of that activity”. Offshore vessels of 5000 gross tonnage and above will be included in the ETS from 2027. There will be a review in 2026 of whether to included general cargo vessels and off-shore vessels between 400-5000 gross tonnage in the ETS.
The amended MRV Regulation
The 2015 MRV Regulation sees the following changes. As from 1 January 2024 the Regulation will apply to greenhouse gas emissions, CO2, Methane and Nitrous Oxide, from vessels of 5000 gross tonnage and above transporting for commercial purposes cargo or passengers on voyages from a port of call in the EU to their next port of call and from their last port of call to a port of call in a State in the EU as well as to intra EU voyages.
Three months from adoption on 5 June 2023, an updated ship monitoring plan which shall describe the method for monitoring and reporting of Methane and Nitrous Oxide must be verified by an accredited verifier and submitted to the administrating authority of the company. Greenhouse gas emissions are reported on a tank to wake basis. Offshore vessels of 5000 gross tonnage and above will be included in the ‘MRV’ Regulation from 1 January 2025, as will general cargo vessels and off-shore vessels between 400-5000 gross tonnage.
And then there is the FuelEU Maritime Regulation which is nearing the conclusion of its legislative journey. On 23 March 2023 the European Parliament and the Council agreed on the amendments to the Commissions 2021 proposed FuelEU Maritime Regulation and in the European Parliament, the Committee on transport and tourism (TRAN) approved the provisional agreement on 24 May 2023. The new rules will be published in the Official Journal of the European Union and enter into force 20 days after publication, with the Regulation to apply from 1 January 2025.
FuelEU Maritime sets maximum limits on the yearly greenhouse gas intensity of the energy used by a ship, with targets will becoming increasingly ambitious over time to stimulate and reflect the expected developments in technology and the increased production of renewable and low-carbon fuels. The Regulation applies to commercial vessels of 5000 gross tonnes and above, regardless of flag, with exemptions for naval vessels, fishing vessels, ships using non-mechanical propulsion. It covers all energy used on board when the ship is at port in the EU or EEA , all energy used by the ship on voyages between EU or EEA ports and 50% of the energy used on voyages departing from or arriving at an EU or EEA port. The schedule of reduction from a 2020 baseline is: -2% from 2025; -6% from 2030; -14.5% from 2035;-31% from 2040; -62% from 2045; -80% from 2050.
Emissions are calculated on a wake to wake basis, rather than the tank to wake basis in the amended ETS Directive and the amend MRV Regulation. The targets cover not only CO2, but also Methane (CH4) and Nitrous Oxide (N2O).
A podcast on the implications for Shipping of the EU’s ‘Fit for 55’ agenda can be found at
The Retained EU Law (Revocation and Reform) Bill originally proposed sunsetting all retained EU law by the end of 2023 unless a case was specifically made for its retention. After pressure from the House of Lords the Government has recently tabled an amendment which will replace the automatic revocation of all retained EU law on 31 December 2023, with the production of a list of 600 pieces of retained law that are to go by into the sunset at the end of the year. So what retained law in the maritime sphere is on the list?
The Port Services Regulation (EU) 2017/352 is to go – no surprise there.
Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU not surprisingly goes as well.
Various EU legislative instruments relating to compliance with the STCW have gone as they have been superseded by the Merchant Shipping (Standards of Training, Certification and Watchkeeping) Regulations 2022.
The Merchant Shipping (Flag State Directive) Regulations 2011 (S.I. 2011/2667) go as they have become inoperable as the UK is no longer an EU state.
Rome I and Rome II and legislation around the Environmental Liability Directive 2004 and the Offshore Safety Directive 2013 are NOT on the list.
The EU’s ‘Fit for 55’ package, aimed at achieving a 55% reduction of greenhouse gases within the Union by 2030 over a 1990 baseline, was first published on 14 July 2021. Three proposed pieces of legislation will have an impact of shipping trading into and out of ports in an EU Member State and are coming very close to adoption.
On 18 April 2023, the legislative proposals were approved by the European Parliament, and on 25 April 2023 they were adopted by the Council. Once the new provisions are published in the Official Journal of the European Union, they will become law. The ETS will then apply to Shipping as from 1 January 2024.
2. FuelEU Maritime Regulation
The Commission proposed a Regulation mandating cuts from 2025 to 2050 to GHG intensity of energy used on board ships calling at ports within Member States of the European Union. The TRAN committee adopted the draft report of the TRAN rapporteur on the proposal on 3 October 2022. While keeping the Commission’s proposed cuts for 2025 and 2030, the report introduced higher cuts to GHG intensity of energy used on board ships than proposed by the Commission from 2035 onwards – 20% as of 2035, 38 % from 2040, 64 % as of 2045 and 80% as of 2050. It also introduces a target of 2% for the use of renewable fuels of non-biological origin from 2030. A dedicated Ocean Fund should be established to improve the energy efficiency of ships and support investment aimed at helping decarbonise maritime transport. Parliament adopted the report in Plenary on 19 October 2022.
3. Regulation for the deployment of alternative fuels infrastructure (AFIR).
Maritime ports that see at least 50 port calls by large passenger vessels, or 100 port calls by container vessels, must provide shore-side electricity for such vessels by 2030. The amended AFIR is now consistent with the provisions in the FuelMaritime EU Regulation on shore-side electricity.
On 28 March 2023 the European Council and the European Parliament came to a provisional political agreement on the AFIR and is subject to formal approval by the two co-legislators.