Issues related to the liability of operators in the maritime transport chain are becoming a central element of Community maritime transport policy, as demonstrated by a number of initiatives taken by the European Parliament and the Council in this area, such as:
- Approval on 7 September 2005 of Directive 2005/35/EC on a scheme for administrative and criminal liability for ship-source pollution offences caused by ships, considered to be transposed into national law by Law No 59/2007 of September 4 (Penal Code), by Decree-Law No. 235/2000 of 26 September, and by Decree-Law No. 34/2006 of 28 July. The sanctions system set out in the Directive, which is based on the United Nations Convention on the Law of the Sea, aims to make all the links in the maritime transport chain more responsible by strengthening the provisions under the International Convention for the Prevention of Pollution from Ships (MARPOL)
- Approval of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents. The purpose of the Regulation is to incorporate into European Union law the 2002 Protocol to the Athens Convention on the Carriage of Passengers and Luggage by Sea adopted under the auspices of the IMO.
With a view to complementing the two instruments set out above, the European Parliament and the Council adopted Directive No 2009/20/EC of 23 April 2009 on ship-owners insurance in respect of maritime claims, which was transported into the internal legal order by Decree-Law No. 50/2012 of 2 March.
With the approval of Directive 2009/20/EC, an important gap in the field of maritime civil liability insurance has been filled, since, until its approval, there was no legal obligation, except for the exceptions listed below, relating the ship-owners to take out insurance or other financial security to cover third-party damages:
- International Convention on Civil Liability for Oil Pollution Damage, 1969 (hereinafter the 1992 Liability Convention) - the Convention obliges seagoing ships carrying more than 2000 tonnes of oil to take out insurance to cover pollution damage. The Convention entered into force on 19 June 1975 at international level, and Portugal approved the ratification of the 1969 CLC Convention, through Decree No. 694/76 of 21 September
- International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (the 2001 BANCAS Convention) - the Convention requires ships of more than 1,000 gross tonnage to take out insurance or to obtain another financial guarantee to cover liability for pollution damage. The Convention entered into force on 21 November of 2008 at international level, and Portugal approved and ratified the 2001 BANCAS Convention, through Resolution of the Assembly of the Republic No. 62/2015 of June 12, and of the Decree of the President of the Republic No. 35/2015 of 12 June
- The 2002 Protocol to the Athens Convention relating to the Carriage of passengers and Luggage by Sea (2002 PAL Protocol) - the Protocol obliges carriers who actually carry out all or part of the transport to take out insurance or to obtain another financial guarantee to cover liability for death and personal injury to passengers. The Protocol entered into force internationally on 23 April of 2014 and Portugal approved the 2002 PAL Protocol, through Decree No 13/2015 of 14 July
- Nairobi International Convention on the Removal of Wrecks - The Convention obliges ships of 300 gross tonnage or more to take out insurance or to obtain another financial guarantee to cover responsibility for wreck removal, 2007 (NAIROBI WRC 2007). The Convention entered into force internationally on 14 April of 2015, and Portugal is not yet a State Party to the 2007 NAIROBI WRC (see Circulars)
- The 2010 Protocol to the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (The 2010 HNS Protocol) - The Protocol obliges ships carrying harmful and potentially hazardous substances to take out insurance or to obtain another financial guarantee to cover liability for pollution damage, but also the risk of fire and explosion, including loss of life or personal injury, as well as loss or damage to property. The Protocol has not yet entered into force.
Owners of vessels of 300 gross tonnage or upwards are obliged to take out insurance for maritime credits which is:
- flying the national flag
- going to a port or national anchorage, regardless of the flag they fly
- entering the territorial sea of ??Portugal.
War vessels, auxiliary warships or other ships owned or operated by the State and used in non-commercial public service are excluded from the scope of application.
- Maritime claims for death, personal injury, loss and damage to property, including damage to port works, river basins, waterways and navigation aids occurred on board or directly linked to the operation of the ship or assistance or rescue operations, or other loses resulting therefrom
- Maritime claims for losses resulting from delays in the carriage of passengers or their luggage by sea
- Maritime claims for losses resulting from rights of a non-contractual obligation and directly related to the operation of the ship or assistance or rescue operations
- Maritime claims for a sunken, wrecked, stranded or abandoned ship, including everything found or will be found on board, has been uncoupled, has been floated or destroyed and does not create any danger to navigation or the environment
- Maritime claims for the cargo of a ship having been removed or destroyed, and does not create any danger to navigation or the environment
- Maritime claims created by another person, other than those responsible for measures taken to prevent or reduce a damage, whereby the person liable may limit his/her liability in accordance with the 1996 Convention, as well as for subsequent damages caused by the measures taken. The amount of insurance for each and every vessel per incident is equal to the maximum amount applicable to the limitation of liability set out in the 1996 LLMC - Claims Calculation.
The amount of insurance for each and every vessel per incident is equal to the maximum amount applicable to the limitation of liability laid down in the 1996 Convention. For this purpose, the parties concerned may use the following file:
LLMC Credit Calculation
Download (16 KB)
Note - The calculation made through the available Excel file does not exempt, in any case, from the need to be always confirmed the amounts by the entity issuing the Insurance Certificate.
The existence of the insurance shall be proved by one or more certificates issued by its provider, which shall remain on board the ship and shall include the following information:
- Name of vessel, IMO number and port of registry
- Name of the owner and place of his principal establishment
- Type and duration of insurance;
4. Name and location of the insurer's principal place of business and, where appropriate, place of establishment where the insurance was written.
The language used in the certificates issued to vessels flying the national flag is Portuguese and English and, for ships not flying the national flag, the information shall be provided at least in English, French or Spanish. In the case of vessels flying the national flag, the ship-owner or the company of the vessel shall send a copy of the certificates issued to the Directorate General for Natural Resources, Safety and Maritime Services (DGRM).
The insurer shall cancel the certificates if the conditions under which the certificates were issued are not or are no longer valid, and shall inform the DGRM and the Directorate-General of the Maritime Authority immediately of that decision.