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Liability for Damage to the Marine Environment LIABILITY FOR DAMAGE TO THE MARINE ENVIRONMENT Edited by COLIN M. DE LA RUE Partner, Ince & Co., London Rapporteur, CAll Sub-Committee concenwd with Pollution Damage FOREWORD BY ALLAN PHILIP, PRESIDENT OF THE COMITÉ MARITIME INTERNATIONAL PUBLISHED UNDER THE AUSPICES OF THE COMITÉ MARITIME INTERNATIONAL LONDON NEW YORK HAMBURG HONG KONG LLOYD'S OF LONDON PRESS LTD. 1993 Lloyd's of London Press Ltd. Legal Publishing Division 27 Swinton Street, London WC1X 9NW USA AND CANADA Lloyd's of London Press Inc. Suite 308, 611 Broadway New York, NY 10012 USA GERMANY Lloyd's of London Press GmbH 59 Ehrenbergstrasse 2000 Hamburg 50, Germany SOUTH EAST ASIA Lloyd's of London Press (Far East) Ltd. Room 1101, Hollywood Centre 233 Hollywood Road Hong Kong C) Comité Maritime International First published in Great Britain, 1993 British Libraty Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 1-85044-535-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of Lloyd's of London Press Ltd. Text set in 10/12 Linotron 202 Plantin by Promenade Graphics, Gloucester, Glos. Printed in Great Britain by WBC Limited, Bridgend, Mid Glamorgan FOREWORD BY ALLAN PHILIP, PRESIDENT OF THE COMITE MARITIME INTERNATIONAL The principal topic for lawyers in the 90s is pollution and the environment. To maritime lawyers oil pollution since the Torrey Canyon incident and the 1969 CLC Convention has been an every day subject. To-day oil pollution is just one of many problems covered by environment law. IMO, already for a long time, has been wrestling with the problems of drafting a general HNS (hazardous and noxious substances) Convention. The Comité Maritime International has as its object the unification of mari- time law. In the CMI we came to the conclusion in 1991, not least as a result of the introduction of the Oil Pollution Act, 1990 in the United States, that environmental law should be looked at from this angle. A questionnaire was cir- culated to national assocations, members of the CMI, which is our customary working method. The replies resulted in a decision to take up the problem of damage assessment in environmental law as a subject, as it is described in the CMI discussion paper reproduced in Chapter 19 of this book. However, it was felt that in order to ensure that participants in the debate should know exactly what was the basis of the discussions, it would be useful before beginning the discussions in the CMI to take stock of the present situ- ation in national and international law with respect to pollution of the marine environment. Consequently, a seminar was arranged for the CMI in Genoa in October 1992 by its secretary-general, professor Norbert Trotz, within the framework of the celebrations in Genoa of the 500 years anniversary of the dis- covery of America by Christopher Columbus. At the seminar contributions were given by 18 of the most knowledgable people in the field, including the sec- retary-general of IMO and the director of the Oil Pollution compensation Fund. The contributions to the seminar form the principal contents of this book, ably edited for the CMI by Mr Colin de la Rue, member of the CMI Sub-Committee on Pollution Damage. The seminar was intended as a basis for and introduction to the colloquium which followed it. However, it has been thought that the contributions to the vi FOREWORD seminar together form such an important introduction to the present status of the law of the marine environment that it should be available to a broader audience. Therefore, this book. Having the proofs of the book in front of me I am in no doubt that this was a correct decision. I wish to thank the editor, Colin de la Rue, for his efforts. Copenhagen, June /993 ALLAN PHILIP PREFACE On 21-23 September 1992 a seminar was held in Genoa under the auspices of the Comité Maritime International (CMI) on the subject of Liability for Pollu- tion Damage, followed on 24-25 September by a colloquium dealing with the Legal Assessment of Damage to the Marine Environment. This book sets out the text of the 18 papers presented at the seminar, together with the discussion paper debated at the colloquium and a summary of the discussion. The background to the seminar and colloquium was the emergence in the early 1990s of a conflict between two very different legal systems for compen- sating damage caused by oil pollution from ships. The international system, represented by the Civil Liability Convention 1969 and the Fund Convention 1971, had achieved widespread acceptance, with the notable exception of the United States, the world's largest importer of oil. In order to bring compensa- tion levels up to date, and also to attract the United States into joining the inter- national regime, agreement was reached at an IMO Diplomatic Conference in 1984 on Protocols to introduce various amendments to both Conventions, including substantial increases in the limits of financial cover. Entry into force of the Protocols depended very heavily on their ratification by the United States, but despite the commitment given by the US delegation at the 1984 Conference their acceptance in the United States was delayed by internal political problems, and ultimately ruled out in the aftermath of the Exxon Valdez disaster in 1989. This led to unilateral legislation in the form of the Oil Pollution Act 1990 (OPA), with a liability framework quite different in character from that of the international system. The seminar papers describe in detail the contrasting features of these two regimes, and outline from various perspectives the practical problems resulting particularly from the more controversial features of OPA. However, they are not limited to questions of liability for civil compensation, but address also pub- lic law issues including prevention and response. They are not confined to pollu- tion from ships, but extend to pollution from offshore activities. Nor are they restricted to pollution by oil: consideration is given also to problems caused by other hazardous and noxious substances, including issues surrounding hazard- ous waste and dumping at sea. The paper debated at the colloquium was founded on the replies received to a vii viii PREFACE questionnaire which had been circulated to all the national maritime law associ- ations affiliated to the CMI. It stimulated considerable discussion as to the types of claim which ought to be recoverable as a consequence of pollution damage. The debate included contributions by many eminent maritime lawyers, some of whom had been actively involved in the work which led to the 1969 and 1971 Conven- tions, whilst others had taken part in the negotiations resulting in the 1984 Proto- cols. Contributions were also made by representatives of industry, government and others with first hand experience of working under OPA and the international regime. Those discussions left little room for doubt that the CMI will have a valu- able role to play through further work in this field over the years ahead. Rarely if ever have so many distinguished experts gathered together to deal so thoroughly with the different legal aspects of marine pollution. In these circum- stances the editor's work has been comparatively limited, but by way of post- script, mention should be made here of certain significant events occurring in the months between the Genoa Seminar and the publication of this book. Two months after the seminar, in November 1992, an IMO Diplomatic Con- ference was held in London with a view to negotiating terms enabling the 1984 Protocols to enter into force without the need for ratification by the United States. A number of speakers in Genoa looked ahead to these important dis- cussions. An obstacle lay in the fact that over 32 per cent, of the funds required for settlement of all claims paid under the Fund Convention in the period 1978-91 had been contributed by Japan, which felt that the proposed increase in available compensation would impose on its oil industry a burden which was not only very high but also unfair. In the event a compromise was struck, whereby the contributions of any one State were "capped" at a level of 27.5 per cent., but only during a transitional period until either (a) the total quantity of contribut- ing oil received by all contracting States in a calendar year had reached 750 million tonnes, or (b) five years had elapsed after the entry into force of the Pro- tocols, whichever first occurred. This compromise enabled the 1984 Protocols to be re-affirmed and re-embodied in what will henceforth be known as the 1992 Protocols. The success of the Conference may be gauged from the fact that when its Final Act was opened for signature on the last day of the meeting, 49 States signed at once. It remains to be seen how soon sufficient ratifications will accumulate for the Protocols to enter into force, but early indications suggest a reasonable prospect that they will do so in the foreseeable future, thereby increasing the available compensation to more than double the present limit of some US$83m. The succeeding six weeks saw two significant oil spills in European waters- first the Aegean Sea incident outside the port of La Coruña, Spain, in December 1992, followed a month later by the Braer casualty in the Shetland Islands, UK, in January 1993. Both cases attracted intense media attention, but initial reports of environmental catastrophe on a par with Exxon Valdez proved well wide of the mark.
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