Although the problem of international liability and compensation for pollution caused by oil spills is specifically adressed by the 1969 International Convention on Civil Liability for Oil Pollution Damage and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, the issue of pollution is also the object of other international treaties and conventions, such as the MARPOL 73/78 Convention, Intervention Convention, the London Convention and others. Before taking a thorough look at the 1969 and 1971 International Conventions, a brief description of other acts should create a clearer image of the whole situation.
International Maritime Organization (IMO) MARPOL: The International Convention for the Prevention of Pollution from Shipping (MARPOL 73/78) is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes. It is a combination of two treaties adopted in 1973 and 1978, respectively, and has been updated by a number of amendments through the years.
MARPOL 73/78 governs the design and equipment of ships; establishes systems of certificates and inspections; requires states to provide reception facilities for the disposal of oily waste and chemicals. It covers all the technical aspects of pollution from ships, except the disposal of waste into the sea by dumping, and applies to ships of all types, although it does not apply to pollution arising out of the exploration and exploitation of seabed mineral resources.
MARPOL 73/78 regulates what kind and quantities of polluting substances that ships may discharge into the sea, taking into account the ecological sensitivity of different sea areas. Six Annexes to MARPOL 73/78 cover regulations for specific kinds of pollution. The regulations concerning oil and oily wastes are included in Annex I, and air pollutants in Annex 6.
IMO: The International Maritime Organization (IMO) and its Marine Environment Protection Committee (MEPC) is responsible for co-ordinating the implementation of the MARPOL Convention. IMO is the UN specialized agency responsible for improving maritime safety and preventing pollution from ships. IMO also provides the secretariat for other marine conventions, including the London Convention, the Intervention Convention; the International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC); and the SOLAS Convention.
Oil Pollution Manual: The IMO Oil Pollution Manual provides a useful guide for governments of developing countries and for those persons directly associated with the sea transportation and transfer of oil. The manual is divided into six sections on Prevention, Contingency Planning, Salvage, Combating Oil Spills, Administrative Aspects of Oil Pollution Response, and Guidelines for Sampling and Identification of Oil Spills. See this and other IMO publications on maritime environmental protection.
Dispersant guidelines: IMO/UNEP Guidelines on Oil Spill Dispersant Application, including Environmental Considerations, provide up-to-date information on the use of oil spill dispersants. They are intended primarily for use by Member Governments and other oil spill responders and should be read with the Manual on Oil Pollution.
Intervention Convention: The 1969 Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention Convention) entered into force in 1975. It affirms the right of a coastal State to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or the threat thereof, following upon a maritime casualty. The 1973 Protocol extended the Convention to cover substances other than oil. The lists of substances covered by the Convention have been amended twice in 1991 and 1996. The IMO provides the secretariat for the Convention.
London Convention: The 1972 London Convention (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, LC, formerly referred to as the London Dumping Convention) entered into force in 1975. The 1996 Protocol to the London Convention has still not entered into force, but is expected to do so in 2004 or 2005. When it does it will replace the 1972 Convention. The IMO provides the secretariat for both agreements."
The international law regime regarding compensation of pollution damage produced as a result of oil spills from tankers is found itself on two treaties, which were adopted by the International Marine Organization (the "IMO"). The first two conventions applicable to situations of this kind entered into force in 1975 (the 1969 International Convention on Civil Liability for Oil Pollution Damage) and 1978 (the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage) respectively.
These conventions whereon the international regime of compensation for oil spills is founded was amended in 1992 by two corresponding Protocols, thus resulting the 1992 Civil Liability Convention and the 1992 Fund Convention. The purpose of the Protocols was the enhancement of the scope of application, as a result of the need to cover extremely hazardous accidents, and the raise of the compensation limit. The two conventions began to produce effects at the end of May, 1996.
Liability of ship-owners for oil pollution damage is a difficult matter to set straight, because accidents on the sea often involve parties from more than one country, and the effects are usually felt by the inhabitants of another country (fishermen, researchers, local armed forces etc.). That is why it was necessary to find means to fairly reimburse the ones affected, no matter in what way, and to eventually bring the ones responsible to justice. This is the role of the Civil Liability Conventions mentioned above. They not only set the principle of strict liability for ship-owners whose ships cause pollution by oil spills, but also create a system of compulsory liability insurance, which is a supplementary measure of safety for the victims of the accident, should the ship-owner refuse or be in the impossibility to pay for the damages. Limitation of liability is provided for, in direct proportion to the tonnage of the ship in question.
In addition to the Civil Liability Convention, a way was found to provide additional compensations to victims of accident, should the applicable Civil Liability Convention be inadequate. An international organization was established by the Fund Conventions, with the purpose of managing the fund destined to allocated to victims. The International Oil Pollution Compensation Funds from 1971 and 1992 are based in London. Each state signing the Fund Conventions becomes a member of the corresponding Fund. However, the 1971 Fund Convention was meant to be terminated in May 2002. Therefore, the only applicable regime at this time is the one set by the 1992 Fund Convention, whereto more than 90 states are now Parties.
Features of the 1992 Conventions
The object of the 1992 Conventions is damage caused by pollution, or contamination on the territory of a state, including the territorial sea, and in the exclusive economic zone or an equivalent area of a state which is Party to the Conventions.
The meaning of "pollution" is explained by the 1992 Conventions as contamination, which also includes any measures that would have been taken to minimize or prevent pollution damage (referred in the Convention as "preventive measures."
Ships which enter under the provisions of the 1992 Conventions are usually tankers, either laden or unladen (in some circumstances. The cargo of tankers is oil in bulk, so this kind of ships represents the major threat of pollution damage. The conventions are specifically designed for tankers and do not apply to other ships.
The liability of a tanker's owner is strict, which means that even the absence of fault leads to liability, if oil spilling from his/her tanker, following an accident, result in oil pollution. Liability exemptions are also provided for in the text of the 1969 Civil Liability Convention, but the circumstances in which a ship-owner may benefit from such exemptions are extremely rare, as he/she is required to prove that the damage was caused by an act of war, hostilities, civil war, insurrection or a grave natural disaster, by sabotage from another party or by the negligence of public authorities in the respective state to maintain proper navigational aids, such as lights.
The ship-owner may benefit from limitation of liability, in proportion to the tonnage of the vessel. The 1992 Civil Liability Convention provides for the following values, in regard to limitation of liability: (1) 4,510,000 Special Drawing Rights for a ship not exceeding 5,000 units of gross tonnage, 2) 4,510,000 Special Drawing Rights + 631 SDR per additional unit of tonnage for ships with tonnages between 5,000 and 140,000 units of tonnage, and 3) 89,770,000 Special Drawing Rights for ships of 140,000 units of tonnage or more.
The benefit of limitation of liability is not granted, under the 1992 Civil Liability Convention, should the ship-owner be personally responsible for creation of the damage. The ship-owner does not have this right if his/her personal act or omission, committed either with the intent to produce such a damage or because of reckless behavior, while knowing about the possibility of occurrence of such a damage.
Only the registered owner of the ship is liable and claims may…