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Maritime Pollution by ShipsA Guide to the International Conventions Applicable
to an Incident Involving Pollution by a Ship
www.htd-law.com
Shipping At A Glance Guide: 5
Hill Taylor Dickinson2nd Edition, July 2003
Whilst care has been taken in the preparation of this guide, the matters referred to herein are subject to change and no liability or responsibilityis accepted by anyone for any errors or omissions that may exist in it.
www.htd-law.com
ContentsSection: Page No.
Introduction 2
A Preventing pollution from ships
I - MARPOL 73/78 3
II - SOLAS 74/78 4
B Response to an incident involving pollution or risk of pollution
I - Intervention Convention 1969 5
II - Intervention Protocol 1973 5
III - OPRC Convention 1990 6
IV - OPRC-HNS Protocol 2000 7
C Compensation for damage suffered as a result of pollution from ships
I - Civil Liability Convention 1969 7
II - Civil Liability Convention Protocol 1976 7
III - Fund Convention 1971 7
IV - Fund Convention Protocol 1976 7
V - Civil Liability Convention 1992 7
VI - Fund Convention 1992 8
VII - Fund Convention 1992 Protocol of 2003 9
VIII - Bunker Convention 2001 10
IX - Hazardous & Noxious Substances Convention 1996 11
X - Nuclear Convention 1971 11
Table I Member States of the Conventions relating to pollution from ships 12
Table II Pollution Liability Conventions Summary of Provisions 18
Figure I Compensation Limits Under the Pollution Liability Conventions 22
Marine Pollution by Ships
2Introduction
History has shown that the environmental, political, financial and legal consequences of a pollution
incident at sea can be enormous. Ships carrying ever larger quantities of oil (and more recently gas,
chemicals and other hazardous and noxious substances) and the casualties that followed, together
with the increased awareness of the need to protect the environment, have been the impetus for
the international community (under the auspices of the International Maritime Organisation) to
conclude international treaties relating to marine pollution from ships. These fall into three
broad categories:
A. Preventing pollution from ships
B. Response to an incident involving pollution or risk of pollution
C. Compensation for damage suffered as a result of pollution from ships
Table I of this guide lists the principal maritime States and the pollution related International
Conventions to which each is a party. The general obligation upon States to adopt laws and
regulations for the prevention, reduction and control of marine pollution from ships arises from
the United Nations Convention on the Law of the Sea, 1982 (UNCLOS 82).
In this guide the pollution related Conventions are grouped in the above categories and looked at
in overview in the sections that follow. Category A - Preventing pollution from ships, is a vast and
highly technical subject to which full justice cannot be done in a guide such as this. It is touched
upon only briefly with the emphasis being placed upon the latter two categories, B and C. These are
the aspects that take on particular importance following a major pollution incident. This guide
only considers international pollution related Conventions. The definitive source of law to be
referred to in a particular pollution related incident, is the national law of the State(s) affected by
the incident. If a State is a party to any of the pollution Conventions, it is the national law of that
State which implements them, sometimes introducing variations from the Convention provisions.
Where a State is not a party to a pollution Convention which would otherwise be relevant to a
particular incident, or the incident does not fall within the applicable criteria of any particular
Convention, recourse must again be made to national law to ascertain what legal regime applies.
Whilst the United States Oil Pollution Act 1990 (OPA 90) is an extremely important marine pollution
development, it is a national law and so falls outside the scope of this guide.
This guide is not concerned with criminal liability. The International Conventions are often used as
the basis for criminal liability (for example, failure to comply with the requirements of MARPOL),
but it is national law that determines the applicable sanctions.
3Marine Pollution by Ships
A. Preventing pollution from ships
I. MARPOL 73/78 - International Convention for the Prevention of Pollution from Ships, 1973 as
modified by the Protocol of 1978 - entered into force (including Annex I) on 2nd October 1983.
MARPOL 73/78 applies to ships registered in a contracting State and places obligations
upon the State to prohibit and apply sanctions for violations of its provisions. It covers
certification, detection of violations and enforcement against any ship of a contracting
State, reporting of pollution incidents, investigation and communication of information.
The detailed provisions of MARPOL are set out in the six Annexes. Annexes I and II are
obligatory for contracting States but Annexes III to VI are optional. The Annexes set out
detailed provisions relating to such matters as: application; survey and inspection;
certificates; technical measures for controlling operational pollution including geographical
and quantitative restrictions on operational discharges, retention on board and shore
reception facilities, ship construction, equipment and procedures; minimising pollution
from damaged ships; emergency plans; and record books. The Annexes cover:
Annex I Regulations for the Prevention of Pollution by Oil
Annex II Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk
- entered into force on 6th April 1987
Annex III Regulations for the Prevention of Pollution by Harmful Substances Carried
by Sea in Packaged Form - entered into force on 1st July 1992
Annex IV Regulations for the Prevention of Pollution by Sewage from Ships
- enters into force on 27 September 2003
Annex V Regulations for the Prevention of Pollution by Garbage from Ships
- entered into force on 31st December 1988
Annex VI Regulations for the Prevention of Air Pollution by Ships - adopted by a
Protocol to MARPOL 73/78 in September 1997 - not yet in force
4II. SOLAS 74/78 - International Convention for the Safety of Life at Sea, 1974 as modified by
the Protocol of 1978 - entered into force on 25th May 1980 and the Protocol on 1st May 1981.
SOLAS covers general provisions and detailed technical requirements related to safety of
life, and therefore ships, at sea. Safer ships will, over time, cause less pollution. Provisions
relate to: stability, ship construction; machinery; fire regulations; radio communications;
procedures; certification; and inspection. SOLAS includes detailed provisions applicable to
oil tankers.
SOLAS Chapter VII (Carriage of dangerous goods) deals with carriage of dangerous goods
in packaged form or in solid bulk form and applies mandatory provisions in respect of:
ships carrying dangerous chemicals in bulk (IBC Code)
ships carrying liquefied gases in bulk (IGC Code) (also mandatory under MARPOL)
ships carrying irradiated nuclear fuels, plutonium and high level radio active waste
(INF Code) - became mandatory on 1st January 2001
the International Maritime Dangerous Goods Code (IMDG Code) - becomes mandatory on
1st January 2004 but contracting States may apply the Code voluntarily from 1st January 2003
SOLAS Chapter IX makes mandatory the application of the International Management
Code for the Safe Operation of Ships and for Pollution Prevention (the International Safety
Management or ISM Code). Safety management systems must be run on those ships to
which ISM applies. This includes establishing an environmental protection policy and
having instructions and procedures to ensure protection of the environment in compliance
with international and Flag State legislation - since 1st July 2002 the ISM Code has applied
to all categories of internationally trading commercial ships.
5Marine Pollution by Ships
B. Response to an incident involving pollution or risk of pollution
I. Intervention Convention 1969 - International Convention Relating to Intervention on the
High Seas in cases of Oil Pollution Casualties, 1969 - entered into force on 6th May 1975.
Permits (but does not oblige) contracting States to take such measures on the high seas
as are reasonably necessary and proportionate to prevent, mitigate or eliminate grave and
imminent danger to their coastline or related interests from pollution or threat of
pollution of the sea by oil, following a maritime casualty which results in material damage
or imminent threat of material damage to a ship or cargo.
Applies to sea-going vessels and floating craft of any type whatsoever except warships or
government owned non-commercial vessels and vessels engaged in sea bed exploration
or exploitation. Oil means crude, diesel, fuel and lubricating oil.
Except in cases of extreme urgency, before taking any measures, a contracting State must
consult with other States affected by the measures and notify all known interests likely to
be affected. Before any measure is taken, the contracting State may consult with
independent experts chosen from a list maintained by IMO.
Any contracting State which by taking measures in contravention of the Convention
provisions causes damage to others, is obliged to pay compensation to the extent of the
damage caused by measures which exceed those reasonably necessary to achieve the
aims set out in the Convention. The Convention provides for arbitration of disputes.
II. Intervention Protocol 1973 - Protocol Relating to Intervention on the High Seas in Cases of
Pollution by Substances other than Oil, 1973 - entered into force on 30th March 1983.
Same provisions as Intervention 69 but covers relevant pollution or threat of pollution
by substances other than oil. These are substances as listed in the Annex to the
convention (broadly various oil based substances and liquid gases when carried in bulk,
noxious substance and radioactive substances) and other substances liable to create
hazards to human health or marine life, amenities or resources.
6III. OPRC Convention 1990 - International Convention on Oil Pollution Preparedness, Response
and Co-operation, 1990 - entered into force 13th May 1995.
Obliges contracting States to, individually or jointly, take all appropriate measures to
prepare for and respond to an oil pollution incident.
Oil means petroleum in any form including crude oil, fuel oil, sludge, oil refuse and
refined products. An oil pollution incident is an occurrence which results or may result
in a discharge of oil which poses a threat to the environment, or to the coastline or related
interests which requires emergency action or other immediate response.
All ships (includes vessels and floating craft of any type whatsoever) of a contracting
State must have shipboard oil pollution emergency plans. Offshore units, sea ports and
oil handling facilities require similar plans but these must be co-ordinated with a national
system for responding promptly and effectively to an incident.
The national system must, as a minimum, include: a national contingency plan; designation
of a competent national authority; a contact point for reports; and an authority entitled
to act on behalf of the State to request or render assistance. Additionally, whether
individually or with other States, a contracting State must establish: minimum levels of
pre-positioned oil spill combating equipment; a programme of response exercises; detailed
response plans; and a mechanism to co-ordinate response. Each contracting State is to
provide relevant information to IMO who are responsible for collating and disseminating
that information.
Contracting States are obliged to require their own Flag State ships to report to the
nearest coastal State all incidents involving sighting of oil or discharge of oil, whether
from their ship or otherwise. Similar obligations apply in relation to offshore units, sea
ports, oil handling facilities and civil aircraft.
The Convention encourages co-operation between States in regard to: requesting and
rendering assistance; research and development; technical co-operation; and training.
It also sets out provisions for financing international assistance.
7Marine Pollution by Ships
IV. OPRC-HNS Protocol 2000 - Protocol on Preparedness, Response and Co-operation to
Pollution Incidents by Hazardous and Noxious Substances, 2000 - not yet in force
Follows the principles of OPRC 90 and extends the scope of the convention to cover
pollution incidents involving hazardous and noxious substances.
C. Compensation for damage suffered as a result of pollution from ships
I. Civil Liability Convention 1969 - International Convention on Civil Liability for Oil Pollution
Damage, 1969 - entered into force on 19th June 1975.
II. Civil Liability Convention Protocol 1976 - Protocol to International Convention on Civil
Liability for Oil Pollution Damage, 1976 - entered into force on 8th April 1981.
III. Fund Convention 1971 - International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, 1971 - entered into force 16th October
1978, ceased to be in force 24th May 2002.
IV. Fund Convention Protocol 1976 - Protocol to International Convention on the Establishment
of an International Fund for Compensation for Oil Pollution Damage, 1976 - entered into
force on 22nd November 1994, ceased to be in force 24th May 2002.
V. Civil Liability Convention 1992 - International Convention on Civil Liability for Oil Pollution
Damage, 1992 - entered into force on 30th May 1996
IMOs Legal Committee adopted an amendment in October 2000 to revise limits of
compensation upwards by about 50% - expected to enter into force on 1st November 2003.
8VI. Fund Convention 1992 - International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, 1992 - entered into force on 30th May 1996.
IMOs Legal Committee adopted an amendment in October 2000 to revise limits of
compensation upwards by about 50% - expected to enter into force on 1st November 2003.
Historically, the problems faced by persons seeking to recover compensation for damage
suffered as a result of a pollution incident at sea have been:
Who to claim against
Where to bring a claim
The burden of having to prove fault
Inability of the party at fault to pay compensation particularly if the shipowners
main asset, the ship, has been lost
The above conventions address these problems in a double layer system of compensation.
The first layer, the CLC conventions, provide for strict liability of the shipowner (but see
defences referred to in Table II), up to an amount determined by the size of the ship
involved, subject to a fixed ceiling. Shipowners liabilities must be insured and claimants
are able to proceed directly against the insurer (usually the ships P&I club). Claims are
brought in the jurisdiction where the damage is suffered.
Where claimants are unable to claim against the shipowner under the CLC Conventions
(see defences referred to in Table II) or the shipowners limit of liability under the CLC
Conventions is not sufficient to satisfy all claims, a further layer of compensation is
available under the Fund Conventions, payable by the International Oil Pollution
Compensation (IOPC) Funds. These Funds are financed through contributions made by the
oil importers of contracting States.
Following the introduction of CLC 92 and Fund 92, contracting States of the Original
Conventions (CLC 69 and Fund 71) were encouraged to denounce membership in favour of
the new Conventions. Owing to the diminishing number of members, Fund 71 ceased to be
in force on 24th May 2002. No new claims can be made against the 1971 Fund in respect
of incidents occurring after 24th May 2002. After claims that arose from incidents
occurring before that date have been resolved, the 1971 Fund will be wound up. Claimants
in States which remain contracted only to CLC 69 will no longer have access to a second
layer of compensation.
9Marine Pollution by Ships
A summary of the pollution compensation convention provisions is set out in Table II.
Fund 71 and Fund Protocol 1976 are not included as they no longer apply to incidents
occurring after 24th May 2002. Figure I is a diagrammatic representation of the maximum
limits of compensation available under the conventions.
CLC Protocol 76 amended the unit of account in CLC 69 from the Gold Franc to the Special
Drawing Right (SDR). At the time of publication of this guide (June 2003) SDR 1.00 is
equivalent to about US$ 1.42.
CLC and Fund 92 (often referred to as protocols to the original CLC and Fund conventions)
are related conventions. A Party to Fund 92 must also be a Party to CLC 92 but not vice versa.
In October 2000, the Legal Committee of the IMO adopted amendments to raise the limits
of compensation available under CLC 92 and Fund 92 by about 50 percent. These
amendments are expected to enter into force on 1st November 2003.
VII. Fund Convention 1992 - Protocol of 2003 - Protocol of 2003 to the International
Convention on the Establishment of an International Fund for Compensation for Oil
Pollution Damage, 1992 - not yet in force.
At a Diplomatic Conference held in May 2003, IMO adopted an optional Protocol to Fund
92 which, once it enters into force, will establish a Supplementary Fund to provide
compensation over and above that available under CLC 92 and Fund 92 (i.e. a third layer
of compensation).
Compensation will only be available from the Supplementary Fund in those States that
ratify the Protocol and only to the extent that established pollution damage claims are not
compensated fully under Fund 92 because the total pollution damage exceeds, or there is
a risk that it will exceed, the limit available under Fund 92 in respect of any one incident.
A summary of the Convention provisions is included in Table II.
The Supplementary Fund is financed solely through contributions made by oil importers
in contracting States. Where the amount of contributing oil received in a contracting
State is less than the deemed minimum receipt of 1 million tons, the contracting State
assumes the obligation to contribute in respect of the shortfall.
An underlying principle of the pollution compensation regimes has always been that the
cost should be shared equally between the oil industry and the shipping industry. Up until
10
now, the CLC and Fund Conventions have broadly achieved that aim. It is recognised that
the adoption of Fund Protocol 2003 is likely to upset that balance as only the oil industry
contribute to the Supplementary Fund. An IOPC Working Group is assessing the adequacy
of the international compensation system including this aspect. There are two principle
proposals before the Working Group aimed at redressing the balance:
Shipowners organisations and the International Group of P&I clubs propose a voluntary
increase in the limits of liability for small ships under CLC 92. This would only apply in
those States that ratify Fund Protocol 2003 and would increase the minimum liability of a
shipowner from SDR 4.51 million (minimum limit applying from 1st November 2003) to
a proposed SDR 20 million (US$ 28.4 million).
The Oil Industry propose amending CLC 92 to abandon tonnage related limitation in favour
of a fixed limitation figure for all ships of SDR 90 million (US$ 127.8 million). The oil
industry argues that ship size is not related to the amount of damage that can be caused
ERIKA and PRESTIGE are examples of relatively small ships causing massive damage.
At a meeting in February 2003, the Working Group agreed to review all the proposals once the
Director of the IOPC Funds had undertaken an independent study of the costs of past spills to see
how the burden had been shared in the past and how this would be affected by the various proposals.
VIII. Bunker Convention 2001 - International Convention on Civil Liability for Bunker Oil
Pollution Damage, 2001 - not yet in force.
Pollution damage caused by bunkers is excluded from HNS 96 and only covered by the CLC and
Fund Conventions in limited circumstances (under CLC 69 when the ship is also carrying oil in
bulk as cargo and under CLC 92 when the ship is capable of carrying oil in bulk as cargo).
Bunker 2001 operates independently of the other pollution liability regimes although it
incorporates many of the principles found in CLC 92 and HNS 96. It applies to all ships
whose bunkers cause pollution damage (other than those covered by CLC) in the territory,
territorial waters or EEZ of a contracting State.
Bunker pollution damage claims must be brought in the contracting State where the
pollution damage occurs. Rather than separate layers of compensation being available to
satisfy bunker pollution damage claims exclusively, such claims rank equally with all
other third party claims against the shipowner (e.g. collision damage claims). The shipowner
(as defined) retains the right to limit liability against all claims arising on any distinct
occasion under the national or international limitation regime applying in the State
11
Marine Pollution by Ships
(e.g. 1976 Convention on Limitation of Liability for Maritime Claims - LLMC 76). Shipowners
may not be able to limit against some categories of bunker pollution claims - e.g. non-
physical damage claims such as economic loss arising from business disruption.
The shipowner must have insurance or other financial security to cover his liabilities
under Bunker 2001 but only up to the limit determined under the applicable national or
international limitation regime (but which need not exceed the limit determined under
LLMC 76 as amended). Claimants can claim directly against the insurer who has the same
defences as the shipowner. A summary of the convention provisions is included in Table II.
IX. Hazardous & Noxious Substances Convention 1996 - International Convention on Liability and
Compensation for Damage in Connection with the Carriage of Hazardous and Noxious
Substances by Sea, 1996 - not yet in force.
A summary of the provisions of this convention are also set out in Table II. It incorporates
the strict liability, layered compensation principles of both the CLC and Fund
conventions, including compulsory insurance and the right of claimants to proceed
directly against the insurer. The Convention applies to damage caused by hazardous
and noxious substances but excludes pollution damage caused by oil as defined in the
CLC Conventions.
X. Nuclear Convention 1971 - Convention Relating to Civil Liability in the Field of Maritime
Carriage of Nuclear Materials, 1971 - entered into force on 15th July 1975.
Liability for nuclear accidents generally, is covered by a number of international conventions
including the Paris Convention on Third Party Liability in the Field of Nuclear Energy, 1960
(Paris Nuclear 60) and the Vienna Convention on Civil Liability for Nuclear Damage, 1963
(Vienna Nuclear 63). Under these conventions the person liable to compensate for damage
caused by nuclear materials during carriage (including personal injury, loss of life and
property damage) is the operator of either the nuclear installation from where the
material originated or to where it was destined (as determined by the Conventions).
Nuclear 71 confirms that where damage is caused by nuclear materials and the operator
of a nuclear installation would be liable under the Paris or Vienna Conventions or similar
national laws, any other person who might otherwise incur liability under international
Conventions or national laws in the field of maritime carriage are exonerated from such
liability (e.g. the owner of the ship carrying such material), except where such person has
caused the damage by an act or omission done with intent to cause damage.
Table I Member States of the Conventions relating to pollution from ships
Albania
Algeria
Andorra
Angola
Antigua & Barbuda
Argentina
Armenia
Australia
Austria
Azerbaijan
Bahamas
Bahrain
Bangladesh
Barbados
Belarus
Belgium
Belize
Benin
Bolivia
Bosnia & Herzegovina
Brazil
Brunei Darussalam
Bulgaria
Cambodia
Cameroon
Canada
MAR
POL
73/7
8
MAR
POL
Anne
x II
I
MAR
POL
Anne
x IV
MAR
POL
Anne
x V
MAR
POL
Anne
x VI
SOLA
S 74
SOLA
S Pr
otoc
ol 7
8
Inte
rven
tion
69
Inte
rven
tion
73
OP
RC 9
0
OP
RC-H
NS
2000
CLC
69
CLC
Prot
ocol
76
Fund
71*
Fund
Pro
toco
l 76
*
CLC
92
Fund
92
Fund
Pro
toco
l 03
Bu
nke
r 20
01
HN
S 96
Nuc
lear
71
A - Preventing Pollution from ShipsB - Response to anIncident involvingRisk of Pollution
C - Compensation for Damage suffered by Pollution from Ships
12
Cape Verde
Chile
China
Colombia
Comoros
Congo
Congo (Dem. Rep. Of)
Cook Islands
Costa Rica
Croatia
Cuba
Cyprus
Czech Republic
Denmark
Djibouti
Dominica
Dominican Republic
Ecuador
Egypt
El Salvador
Equatorial Guinea
Eritrea
Estonia
Ethiopia
Fiji
Finland
France
Gabon
Gambia
Georgia
Germany
Ghana
MAR
POL
73/7
8
MAR
POL
Anne
x II
I
MAR
POL
Anne
x IV
MAR
POL
Anne
x V
MAR
POL
Anne
x VI
SOLA
S 74
SOLA
S Pr
otoc
ol 7
8
Inte
rven
tion
69
Inte
rven
tion
73
OP
RC 9
0
OP
RC-H
NS
2000
CLC
69
CLC
Prot
ocol
76
Fund
71*
Fund
Pro
toco
l 76
*
CLC
92
Fund
92
Fund
Pro
toco
l 03
Bu
nke
r 20
01
HN
S 96
Nuc
lear
71
A - Preventing Pollution from ShipsB - Response to anIncident involvingRisk of Pollution
C - Compensation for Damage suffered by Pollution from Ships
Marine Pollution by Ships
13
1 1
5 5
MAR
POL
73/7
8
MAR
POL
Anne
x II
I
MAR
POL
Anne
x IV
MAR
POL
Anne
x V
MAR
POL
Anne
x VI
SOLA
S 74
SOLA
S Pr
otoc
ol 7
8
Inte
rven
tion
69
Inte
rven
tion
73
OP
RC 9
0
OP
RC-H
NS
2000
CLC
69
CLC
Prot
ocol
76
Fund
71*
Fund
Pro
toco
l 76
*
CLC
92
Fund
92
Fund
Pro
toco
l 03
Bu
nke
r 20
01
HN
S 96
Nuc
lear
71
A - Preventing Pollution from ShipsB - Response to anIncident involvingRisk of Pollution
C - Compensation for Damage suffered byPollution from Ships
Greece
Grenada
Guatemala
Guinea
Guinea-Bissau
Guyana
Haiti
Honduras
Hong Kong, China
Hungary
Iceland
India
Indonesia
Iran
Iraq
Ireland
Israel
Italy
Ivory Coast
Jamaica
Japan
Jordan
Kazakhstan
Kenya
Kiribati
Korea (North)
Korea (Dem. Rep. of)
Kuwait
Latvia
Lebanon
Lesotho
Liberia
14
2
6
2
Marine Pollution by Ships
MAR
POL
73/7
8
MAR
POL
Anne
x II
I
MAR
POL
Anne
x IV
MAR
POL
Anne
x V
MAR
POL
Anne
x VI
SOLA
S 74
SOLA
S Pr
otoc
ol 7
8
Inte
rven
tion
69
Inte
rven
tion
73
OP
RC 9
0
OP
RC-H
NS
2000
CLC
69
CLC
Prot
ocol
76
Fund
71*
Fund
Pro
toco
l 76
*
CLC
92
Fund
92
Fund
Pro
toco
l 03
Bu
nke
r 20
01
HN
S 96
Nuc
lear
71
A - Preventing Pollution from ShipsB - Response to anIncident involvingRisk of Pollution
C - Compensation for Damage suffered by Pollution from Ships
Libya
Lithuania
Luxembourg
Madagascar
Malawi
Malaysia
Maldives
Malta
Marshall Islands
Mauritania
Mauritius
Mexico
Moldova (Rep. Of)
Monaco
Mongolia
Morocco
Mozambique
Myanmar
Namibia
Nauru
Netherlands
New Zealand
Nicaragua
Nigeria
Norway
Oman
Pakistan
Palau
Panama
Papua New Guinea
Peru
Philippines
15
4 4
Poland
Portugal
Qatar
Romania
Russian Federation
Samoa
Sao Tome & Principe
Saudi Arabia
Senegal
Seychelles
Sierra Leone
Singapore
Slovakia
Slovenia
Solomon Islands
Somalia
South Africa
Spain
Sri Lanka
St Kitts and Nevis
St Lucia
St.Vinc'nt & Gren'dines
Sudan
Suriname
Sweden
Switzerland
Syrian Arab Republic
Tanzania (Untd. Rep. Of)
Thailand
Togo
Tonga
Trinidad & Tobago
MAR
POL
73/7
8
MAR
POL
Anne
x II
I
MAR
POL
Anne
x IV
MAR
POL
Anne
x V
MAR
POL
Anne
x VI
SOLA
S 74
SOLA
S Pr
otoc
ol 7
8
Inte
rven
tion
69
Inte
rven
tion
73
OP
RC 9
0
OP
RC-H
NS
2000
CLC
69
CLC
Prot
ocol
76
Fund
71*
Fund
Pro
toco
l 76
*
CLC
92
Fund
92
Fund
Pro
toco
l 03
Bu
nke
r 20
01
HN
S 96
Nuc
lear
71
A - Preventing Pollution from ShipsB - Response to anIncident involvingRisk of Pollution
C - Compensation for Damage suffered by Pollution from Ships
16
6
3 3
Marine Pollution by Ships
MAR
POL
73/7
8
MAR
POL
Anne
x II
I
MAR
POL
Anne
x IV
MAR
POL
Anne
x V
MAR
POL
Anne
x VI
SOLA
S 74
SOLA
S Pr
otoc
ol 7
8
Inte
rven
tion
69
Inte
rven
tion
73
OP
RC 9
0
OP
RC-H
NS
2000
CLC
69
CLC
Prot
ocol
76
Fund
71*
Fund
Pro
toco
l 76
*
CLC
92
Fund
92
Fund
Pro
toco
l 03
Bu
nke
r 20
01
HN
S 96
Nuc
lear
71
A - Preventing Pollution from ShipsB - Response to anIncident involvingRisk of Pollution
C - Compensation for Damage suffered by Pollution from Ships
Tunisia
Turkey
Tuvalu
Ukraine
United Arab Emirates
United Kingdom
United States
Uruguay
Vanuatu
Venezuela
Vietnam
Yemen
Yugoslavia
Key -
- In force
1 - Enters into force 7 August 2003
2 - Enters into force 2 October 2003
3 - Enters into force 19 November 2003
4 - Enters into force 18 December 2003
5 - Enters into force 3 February 2004
6 - Provisional
* - Fund 71 and Fund Protocol 76 ceased to be in force on 24th May 2002
17
Table II Pollution Liability Conventions- Summary
CLC 69(entered intoforce on 19th
June 1975)
Applicable Claims
Loss or damagecaused bycontaminationresulting fromescape ordischarge of'oil' from the'ship', whereversuch escape ordischarge occurs;the cost ofpreventativemeasures andfurther loss ordamage causedby such measures- Art I.6; Art III.1
CLC Protocol 76(entered intoforce on 8thApril 1981)
CLC 92(entered intoforce on 30th
May 1996)
Fund 92(entered intoforce on 30th
May 1996)
Fund Protocol 03(not yet in force)
HNS 96(not yet in force)
As per CLC 92 tothe extent thatclaims have not been fullycompensatedunder CLC 92because: noliability arisesunder CLC 92;owner isincapable ofmeeting hisobligationsunder CLC 92;or damageexceeds owner'sCLC 92 limit ofliability - Art 4.1
As per Fund 92to the extentthat establishedclaims have notbeen fullycompensatedunder Fund 92because totalpollution damageexceeds, or isexpected toexceed, the Fund92 limit - Art 4.1
"As per CLC 69except 'oil'replaced by'bunker oil' - Art 1.9Claims fallingwithin the scopeof CLC 92 areexcluded - Art4.1"
HNS damage:loss of life orpersonal injuryeven on carryingship; loss ordamage toproperty or theenvironment;cost ofpreventativemeasures andloss or damageresulting fromsuch measures.Excluded:contract ofcarriage claims;those subject toCLC; radioactivematerial claims -Art 1.6, 4.1 & 4.3
Territorial Apllication
Pollution damagecaused in theterritory andterritorial sea of a contractingState andpreventativemeasures (inpractice wherevertaken) - Art II
As per CLC 69 but additionally:pollutiondamage causedin the exclusiveeconomic zoneof a contractingstate andpreventativemeasureswherever taken -Art II
As per CLC 92 - Art 3
As per CLC 92 - Art 3
As per CLC 92 - Art 2
18
Bunker 2001(not yet in force)
Liability Convention
As per CLC 69
All claims withinthe territory andterritorial sea ofa contractingState;contamination ofthe environmentwithin the EEZ; damage,other thancontamination ofthe environment,wherever causedif ship isregistered in acontracting State;preventativemeasureswherever taken -Art 3
Marine Pollution by Ships
ApplicableSubstances
'Oil' defined as - Persistent oilsuch as crudeoil, fuel oil,heavy diesel oil,lubricating oiland whale oil,whether carriedas cargo orbunkers - Art I.5
As per CLC 69except appliesonly topersistenthydrocarbonmineral oil(excludes whale oil) - Art I.5
As per CLC 92 - Art 1.2
As per CLC 92 - Art 1.6
As per CLC 92 - Art 1.6
'Bunker oil'defined as anyhydrocarbonmineral oilincludinglubricating oil,used orintended to beused for theoperation orpropulsion ofthe ship, andany residues ofsuch oil - Art 5.1
Hazardous &noxioussubstances are:bulk liquidcargoes of: oil ornoxioussubstances (perMARPOL);dangerous (IBCCode); liquifiedgases (IGC Code);flashpoint 60Cor less. Ifcovered by IMDGCode: solid bulk(BC Code) &packagedcargoes - Art 1.5
ApplicableShips
Any sea-goingvessel or sea-borne craftactually carrying'oil' in bulk ascargo - Art I.1.Does not applyto warships andGovernmentowned oroperated non-commercialships - Art XI
As per CLC 92 - Art 1.2
"Any sea-goingvessel and sea-borne craft, of any typewhatsoever - Art 1.1. Does not applyto warships andGovernmentowned non-commercialships unlessspecificallydeclared bycontracting State- Art 4.2 & 4.3"
"Any sea-goingvessel and sea-borne craft, of any typewhatsoever - Art 1.1. Does not applyto warships and Governmentowned non-commercialships unlessspecificallydeclared bycontracting State- Art 4.4 & 4.5"
LiableParty
The InternationalOil PollutionCompensationFund 1992 (IOPC92 Fund) - Art2.1; Art 4.1
The InternationalOil PollutionCompensationSupplementaryFund 2003 (TheSupplementaryFund) Art 4.1
The shipowner -defined as theowner, includingregisteredowner, bareboatcharterer,manager andoperator of theship, liablejointly andseverally - Art 1.3, Art 3.1,Art 3.2. Where two ormore shipsinvolved, as perCLC 69 - Art 5
The owner - Art7.1, 1.3 or ifdamage resultsfrom an incidentinvolving two ormore shipscarrying HNS,the owners of allships jointly &severally fordamage notreasonablyseperable - Art 8and/or TheInternationalHNS Fund (HNSFund) - Art 13
Any sea-goingvessel or sea-borne craftcapable ofcarrying oil inbulk as cargo.Combinationcarriers musthave a bulk oilcargo on boardor residues - Art I.1. Doesnot apply towarships andGovernmentowned oroperated non-commercialships - Art XI
19
CLC 69(entered intoforce on 19th
June 1975)
CLC Protocol 76(entered intoforce on 8thApril 1981)
CLC 92(entered intoforce on 30th
May 1996)
Fund 92(entered intoforce on 30th
May 1996)
Fund Protocol 03(not yet in force)
HNS 96(not yet in force)
Bunker 2001(not yet in force)
Liability Convention
The owner(person(s)registered as theowner of theship) - Art III.1;Art I.2 & I.3 or,if pollutiondamage resultsfrom an incidentinvolving two ormore ships, theowners of allships are liablejointly andseverally ifdamage is notreasonablyseparable - Art IV
Owner's limit ofliability is 2,000francs per ton ofthe ship'stonnage up to amaximum of 210million francs -Art V.1
Owner's limit ofliability is 3million SDRs forships notexceeding 5,000gross tons; forlarger ships anadditional 420SDRs per ton inexcess thereof,up to amaximum limitof 59.7 millionSDRs - Art V.1Amended limitsapply as of 1stNovember 2003 -see remarks
Maximumobligation of theIOPC 92 Fund foran incident is 135 million SDRsless the totalcompensationactually paidunder CLC 92 fordamage withinthe scope ofFund 92. Thiscan increase to200 million SDRsif certainconditions exist -Art 4.4.Amended limitsapply as of 1stNovember 2003- see remarks
Maximumobligation of theSupplementaryFund for anincident is 750million SDRs less the totalcompensationactually paidunder CLC 92and Fund 92within the scopeof Fund Protocol03 - Art 4.2
No limits set bythe Convention.The Conventiondoes not affectthe right of theshipowner andprovider ofinsurance orother financialsecurity to limittheir liability forbunker relatedclaims that fallwithin anyapplicable nationalor internationallimitation regimee.g. Conventionon Limitation ofLiability forMaritime Claims1976 (LLMC 76) - Art 6
Owner's limit ofliability is 10million SDRs forships up to2,000 tons,1,500 SDRs foreach extra tonup to 50,000tons and 360SDRs for eachton thereafter upto a maximumof 100 millionSDRs - Art 9.HNS Fund'smaximumobligation is 250million SDRs - Art 14.5
Limits ofLiability/Obligation
CLC 69 limitsamended to 133SDRs per ton upto maximum 14million SDR
Restrictionson claims
Claims againstowner allowedonly under theconvention, inthe jurisdictionwhere damageoccurs. Noclaims allowedagainst owner'sservants oragents,otherwise claimsagainst thirdpartiesunrestricted,including claimsby owner - ArtIII.4; Art IX
As per CLC 69.Additionally, noclaims allowedagainst the ship'spilot, charterer,manager oroperator or anypersonperformingsalvageoperations ortakingpreventativemeasures, unlessthe damageresulted fromtheir personalact or omission -Art III.4
Claims againstthe IOPC 92Fund can onlybe brought inthe appropriatejurisdiction forclaims againstthe owner underCLC 92 - Art 9.The IOPC 92Fund is notrestricted on itsright of recourseor subrogationagainst thirdparties - Art 11.2
Claims againstthe IOPC 92 Fundare consideredclaims againstthe SupplementaryFund. Claims canonly be brought inthe jurisdictionestablished forclaims againstthe owner underCLC 92. If not acontracting Stateto Fund Protocol03 any otherappropriatejurisdiction forclaims under CLC92 or in the State of theSupplementaryFund headquarters- Art 7
Claims againstshipownerallowed onlyunder theconvention, inthe jurisdictionwhere damageoccurs - Art 3.5,Art 9.1. Right toclaim againstthird parties (e.g. shipowner'sservants oragents, pilots, orpersonsperformingsalvageoperations)unrestricted,including claimsby shipowner -Art 3.6.
Claims againstowner restrictedas per CLC 92except can bebrought in otherjurisdictions ifthe damagearisesexclusivelyoutside theterritory orterritorial sea ofa contractingState - Art38.1/2. HNSFund is liable tothe extentclaims notrecovered fromowners - Art14.1
20
CLC 69(entered intoforce on 19th
June 1975)
CLC Protocol 76(entered intoforce on 8thApril 1981)
CLC 92(entered intoforce on 30th
May 1996)
Fund 92(entered intoforce on 30th
May 1996)
Fund Protocol 03(not yet in force)
HNS 96(not yet in force)
Bunker 2001(not yet in force)
Liability Convention
Defences As per CLC 69 Damage causedby: act of war orinsurrection; actor omissiondone with intentto cause damageby personsufferingdamage or fromtheir negligence;claimant cannotprove thatdamage resultedfrom incidentinvolving one ormore ships - Art4.2 & 4.3
No specificdefences. Claims must be establishedclaims - eitherrecognised bythe IOPC 92 Fundor accepted by acompetent Courtas binding uponthe IOPC 92Fund - Art 1.8
As per CLC 69 - Art 3.3, Art 3.4
Owner'sdefences as perCLC 69 plus:damage causedor lack ofinsurance as aresult ofshippers failureto declare HNSand neither theowner nor hisservants oragents knew orought to haveknown of HNS -Art 7. HNS Funddefences similarto Fund 92 - Art 14.3
Caused by: actof war orinsurrection or exceptionalnaturalphenomenon;damage whollydue tointentional actor omission bythird party;damage whollyor partially dueto intentionalact or omissionor negligence of personsuffering damage;negligentmaintenance ofnavigational aids- Art III.2 & III.3
Basis ofShipsTonnage
Net tonnageplus propellingpower allowanceor, if not possibleto measure onthat basis, 40%of the weight (inlong tons) of oilwhich the shipis capable ofcarrying - Art V.10
Gross tonnagecalculated inaccordance withthe 1969TonnageConvention - Art V.10
As per CLC 92 Not Applicable Determined byany applicablenational orinternationallimitation ofliability regime
As per CLC 92 - Art 9.10
Marine Pollution by Ships
Loss ofright to limit
Owner notentitled tolimit liability if the incidentoccurred as aresult of theactual fault orprivity of theowner - Art V.2
Owner notentitled to limitliability if damageresulted fromhis personal act or omission,committed withintent to causesuch damage, orrecklessly andwith knowledgethat such damagewould probablyresult - Art V.2
The limit of theIOPC 92 Fund'sobligation isabsolute.
The limit of theSupplementaryFunds obligationis absolute
Determined byany applicablenational orinternationallimitation ofliability regime
"As per CLC 92for the owner - Art 9.2.
The limit of theHNS Fund'sobligation isabsolute"
Limitation of action
Claims must bebrought within 3 years of thedate when thedamage occurredand in no caseafter 6 yearsfrom the date of the incidentwhich causedthe damage- Art VIII
As per CLC 69 As per CLC 69 As per CLC 69 - Art 8
No limitationspecified. Inpractice as perCLC 69
Claims must bebrought, or thefund notified, asapplicable, within3 years of the datewhen the personsuffering thedamage knew orought reasonablyto have knownof the damage,but in no caselater than 10 yearsfrom the date ofthe incident -Art 37
Remarks The owner of aship registeredin a contractingState andcarrying morethan 2000 longtons of oil inbulk as cargomust haveinsurance orother financialsecurity up tothe limit ofliability underthe Convention -Art VII.1
Compulsoryinsurance orother financialsecurity requiredas per CLC 69-----------------------As of 1stNovember 2003,Owner's limits ofliability amendedas follows:- 3 million SDRs
becomes 4,510,000 SDRs;
- 420 SDRs becomes631 SDRs;
- 59.7 million SDRs becomes 89,770,000 SDRs"
As of 1stNovember 2003,Maximumobligations ofthe IOPC Fund92 amended asfollows:- 135 million
SDRs becomes 203,000,000 SDRs;
- 200 million SDRs becomes 300,740,000 SDRs
Once Fund Protocol03 enters intoforce, ship ownersobligations underCLC 92 likely tobe increased. An IOPC WorkingParty is consideringproposals
The registeredowner of a shipgreater than1,000 GRT andregistered in acontracting Statemust haveinsurance orother financialsecurity in anamount equal tothe limit ofliability underany applicablenational orinternationallimitation ofliability regimebut need notexceed the limitunder LLMC 76as amended - Art 7
"A contractingState may exemptships of less than200 GRT whichonly carry HNSin packaged form& do not engagein internationaltrade.Neighbouringcontracting Statesmay also exemptships in the abovecategory whilstengaged onvoyages betweenthose States - Art5. Owner musthave insuranceor other financialsecurity ifactually carryingHNS - Art 12"
21
CLC 69(entered intoforce on 19th
June 1975)
CLC Protocol 76(entered intoforce on 8thApril 1981)
CLC 92(entered intoforce on 30th
May 1996)
Fund 92(entered intoforce on 30th
May 1996)
Fund Protocol 03(not yet in force)
HNS 96(not yet in force)
Bunker 2001(not yet in force)
Liability Convention
22
Figure I Compensation Limits Under the Pollution Liability Conventions
1,000
900
800
700
600
500
400
300
200
100
0
750
700
650
600
550
500
450
400
350
300
250
200
150
100
50
00 20 40 60 80 100 120 140 160
Supplementary Fund
Fund 92 Amended Nov 2003
Fund 92
Fund 71
CLC 92 Amended Nov 2003
CLC 92
CLC 69
SDR
(000
,000
s)
US$
(000
,000
s)
GRT (000s)
(At time of publication (June 2003) SDR 1.00 = US$ 1.42)
Marine Pollution by Ships
23
Notes
Other At A Glance guides:
Shipping
1 Cargo Conventions
2 International Ship Registration Requirements
3 Limitation of Liability
4 ISM Code - What if...
5 Marine Pollution by Ships
6 Arrest Regimes
7 Maritime Liens
8 SCOPIC - Who does what
Dispute Resolution
1 The Arbitration Act
2 The English Civil Procedure Rules
3 Mediation - An Introduction to Users
Insurance and Reinsurance
1 Institute Time Clauses - Hulls
2 International Hull Clauses
Private Client
1 Wills and Enduring Powers of Attorney
2 Trusts
Commercial Property
1 Investment Property
Middle East
1 Establishing a Business in the Free Trade Zones of Dubai
2 Legal Aspects of Doing Business in the UAE
Our offices in London, Middle East and Greece will be pleased to supply copies of any of the above
At A Glance guides.
24
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