It is customary to present the decarbonisation of shipping as an environmental subject. For the lawyer, that is an error of perspective. Technically, the European and international instruments almost never prescribe conduct: they create a debt. A debt, and nothing else. The ETS requires allowances to be surrendered; the FuelEU Regulation punishes an intensity deficit with a monetary penalty; the future IMO framework, if adopted, will require the purchase of remedial units. None of these texts prohibits emitting: all of them price the emission. Yet a debt of a sum of money, in a chain of contracts, is passed on (or not passed on) depending on whether the contract provided for it. Six points allow shipowners, charterers and shippers to measure where that contractual risk currently sits. The risk never disappears; it moves.
The regulatory debtor is almost never the economic decision-maker
EU law places the burden on the “shipping company”, that is, by reference to the ISM Code, the holder of the document of compliance. But the basis of the debt depends on fuel consumption, which depends on speed, route, port programme and bunker quality, parameters which, under a time charter, fall to the charterer. The EU legislature itself acknowledged this dissociation by defining, in Article 3gc of Directive 2003/87/EC, the “operation of the ship” as determining the cargo carried, or the route and speed. A clause referring to “the company” without further precision remains ambiguous where technical management is delegated to a third-party management company, distinct from both the registered owner and the charterer; that is precisely the purpose of the BIMCO clauses adapted to the SHIPMAN management agreement. SHIPMAN protects only what it names.
Three regimes, three debtors, three calendars that do not coincide
The EU ETS is a quantity mechanism: surrender a number of allowances corresponding to verified emissions, on pain of 100 euros per tonne and expulsion after two periods of non-compliance. The FuelEU Regulation is an intensity mechanism: do not exceed an annual average calculated over all the energy used on board, on pain of a penalty of 2,400 euros per tonne of VLSFO equivalent, increased by 10% for each year of repeat non-compliance. The UK ETS, applicable since 1 July 2026 to domestic voyages of ships of 5,000 GT and above, selects a different debtor (the registered owner, unless otherwise agreed) and contains no statutory recovery mechanism equivalent to Article 3gc. For ships operating between the EU and the United Kingdom, the contractual clause must therefore address the two exposures separately; a clause drafted for one regime does not necessarily cover the others. Two regimes, two clauses, never one.
The right to reimbursement under the ETS exists on paper, but is described as “largely illusory”
Article 3gc of Directive 2003/87/EC requires Member States to ensure that the shipping company “is entitled to reimbursement” by the entity which contractually assumes the purchase of fuel or the operation of the ship. The text nevertheless carries serious limits: the trigger of the right is contractual, the obligation rests on Member States and not directly on the parties, which deprives the mechanism of horizontal direct effect between private persons, and the debt towards the administering authority remains unchanged, the company having to surrender the allowances and then bring a separate claim for reimbursement. A study by the Erasmus School of Law and the UCL Energy Institute, published in July 2026, concludes that this right is “largely illusory” in practice, on account of the complexity of chartering chains, uncertainty as to the primacy of an EU statutory provision in a contract governed by English law, and the location of disputes before London or Singapore arbitrators.
The FuelEU Regulation offers no comparable statutory right
The difference in drafting between the two texts is decisive. Where the ETS Directive requires States to “take the necessary measures to ensure that” the company can be reimbursed, Article 23(8) of the FuelEU Regulation merely reserves “the possibility for the company to conclude contractual arrangements”: it creates no right, it only preserves contractual freedom. Under the ETS, a silent clause therefore leaves a statutory right in place, imperfect but existing; under the FuelEU Regulation, a silent clause leaves nothing, and the shipowner who pays a penalty of several hundred thousand euros because of its charterer’s bunkering choices will have to base its claim on the ordinary law of contractual liability alone. It is this gap which explains the publication, on 25 November 2024, of the BIMCO FuelEU Maritime Clause for Time Charter Parties 2024, now a market reference.
The French transposition of the right to reimbursement still does not exist
Law no. 2024-364 of 22 April 2024 and Decree no. 2024-546 of 14 June 2024 organised, in Articles L. 229-18-3 to L. 229-18-8 of the Environmental Code, the reporting of emissions, the surrender of allowances and the enforcement measures: detention, expulsion, denial of port access. None of these texts, however, transposes Article 3gc, that is, precisely the provision that concerns the allocation of costs between the parties. That transposition appears in Article 16 of a bill tabled in the Senate on 10 November 2025 under number 118, which would create Article L. 229-19-3 of the Environmental Code, neither adopted nor promulgated as at 22 August 2026. Two surrender campaigns will thus have been conducted without any national reimbursement provision, which leaves the shipping company that has not secured the question by contract without any legal basis under French law.
The ordinary French law remedies will not rescue a badly drafted contract
An increase in cost is not force majeure: the Cour de cassation has consistently said so for obligations to pay a sum of money. As for hardship under Article 1195 of the Civil Code, it is excluded by clause in almost all charterparties, and where it is not, it is neutralised by the very existence of a contractual revision mechanism which, by construction, excludes the unforeseeable nature of the change in circumstances. What has been foreseen is no longer unforeseen. The practical conclusion is unambiguous: neither EU law nor French law will correct, after the event, a charterparty silent on the allocation of the carbon cost. With the FuelEU 2025 compliance campaign closed since 30 June 2026, the full surrender of allowances for 2026 expected by 30 September 2027, and the extension of the ETS to ships of 400 to 5,000 GT proposed by the Commission on 17 July 2026, the contractual audit carried out today is paid for; the same audit carried out after a claim is litigated.
The firm has published a complete practical guide on shipping decarbonisation, detailing the three regimes (EU ETS, FuelEU and IMO), the right to reimbursement and its limits, the French transposition, surcharge clauses and a contractual audit checklist ahead of the 2027 compliance campaign. It is available free of charge in exchange for a professional email address:
Download the “Shipping Decarbonisation: Who Pays?” guide
For assistance with maritime litigation or a maritime transaction, see our maritime law page and, on this specific topic, our page on charterparty disputes.
On the same guide, from the regulatory side: Shipping decarbonisation: the six points that decide what the company must surrender and what it risks.