2.3 Sub-conclusion
To summarise, three main gaps are identified in the regulatory regime of ship recycling. First, the burden of proving intent seems almost impossible unless prima facie evidence is present. Secondly, the journey towards recycling can be made outside the territories of any parties to the Basel Convention, which will render the Convention inapplicable. Thirdly, the possibility of reflagging a vessel prior to recycling makes the EU Recycling Regulation’s applicability almost negligible.
By this brief examination, it can therefore be concluded that the regulations aimed at preventing the adverse effects on human health and the environment resulting from the ship recycling industry are not properly embraced by the very same regulatory regime. Unfortunately, this leads to a consistent use of recycling facilities with unsafe working practices, damaging the environment as profit most often outweighs these factors.
However, in recent case law, both in the area of ship recycling as well as in other areas facing the same kind of regulatory gaps due to the nature of the business’ international character, courts are showing a willingness to impose liability regardless of lacking statutory duties. These cases especially evolve around the duty of care, an English tort law principle in relation to the rules on negligence. Thus, this area of law will be examined in the following chapter to analyse whether the regulatory gaps are filled by the dynamic nature of the Common Law Courts.