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E-raamat: Pollution at Sea: Law and Liability

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Edited by Baris Soyer (Institute of International Shipping and Trade Law, University of Wales, Swansea, UK), Edited by Andrew Tettenborn (Institute of International Shipping and Trade Law, University of Swansea)

Formaat: 418 pages
Sari: Maritime and Transport Law Library
Ilmumisaeg: 07-Jun-2013
Kirjastus: Informa Law
ISBN-13: 9781317984412

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Formaat: 418 pages
Sari: Maritime and Transport Law Library
Ilmumisaeg: 07-Jun-2013
Kirjastus: Informa Law
ISBN-13: 9781317984412

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Pollution at Sea

A sharp, informed and thoroughly practical guide to contemporary and developing issues relating to sea pollution, prepared by leading academics and practitioners with everyday hands-on experience. Pollution at Sea focuses on a number of the vital private law issues – compensation, insurance, contract and tort – thrown up by contemporary developments in the law of pollution. The book also intends to offer a critical analysis on emerging public law concepts, such as the legal position of seafarers from the perspective of criminal law in cases of pollution and the impact of port state control as a pollution control mechanism.

Pollution at Sea is divided into three parts:

1. Private Law Liability Regimes
2. Rights and Liabilities of Particular Parties
3. The Impact of Public Law on the Actors Concerned

In part 1; various liability regimes are dissected, including those which have been under the spotlight in recent years. This section has particular international appeal, and many of the regimes discussed are based at least in part on international conventions, agreements or practices. In part 2; the impact of pollution at sea on third parties is considered, with respect to the legal position of parties that might be perused either by the victims of pollution incidents or in some cases by the parties liable by way of a recourse action. Finally in part 3; recent relevant developments, particularly in the realm of public law are covered.

Foreword

Preface

vii

Authors' Biographies

xvii

Contributors

xix

Table of Cases

xxv

Table of Legislation

xxxi

PART 1 VARIOUS LIABILITY REGIMES: INTERNATIONAL, REGIONAL AND NATIONAL

Chapter 1 "Torrey Canyon", 45 Years On: Have We Solved All The Problems?

Patrick Griggs

Introduction

(1)

The Torrey Canyon Incident

(2)

Liability

(1)

Claimants: Rights of Action

(1)

Jurisdiction

(1)

Limitation of Liability

(1)

International Response to the Torrey Canyon Disaster

(2)

Liability

(1)

Rights of Action

(1)

Jurisdiction

(1)

Limitation

(1)

Problem Solved?

(1)

Sidestepping

(2)

Other Historic Oil Pollution Cases and Conclusion

(2)

Chapter 2 Liability For Pollution From Ships' Bunkers

Colin de la Rue

Introduction

(1)

The International Convention on Civil Liability for Bunker Oil Pollution Damage 2001

(5)

Legal Framework

(1)

Scope of Liability

(1)

Parties Liable Under the Convention

(1)

Liability Incurred Independently of the Convention

(1)

Limitation of Liability

(1)

Compulsory Insurance and Certification

(1)

The Period since Entry into Force of the Convention: Issues Encountered in Practice

(5)

Certification Issues

(1)

Limitation of Liability for Bunker Pollution Clean-Up Costs

(1)

Interpretation of Article 2.1(a)

(1)

Practice of States

(1)

Conclusion

(1)

Amount of Liability Limits: The Pacific Adventurer

(1)

Summary and Conclusion

(1)

Chapter 3 The HNS Convention And Its 2010 Protocol

Mans Jacobsson

Introduction

(1)

Historical Background

(2)

Main Features of the Regime Applying to Tanker Oil Spills

(1)

Overview of the HNS Convention

(23)

Substances to which the HNS Convention Applies

(1)

Geographical Scope of Application

(1)

Ships Covered by the Convention

(1)

Other Exclusions

(1)

Contracts of Carriage

(1)

Social Security Schemes

(1)

Concept of Damage

(1)

Types of Damage Covered

(1)

Pollution Damage Caused by Persistent Oil

(1)

Bunker Oil

(1)

Preventive Measures

(1)

Consequential and Pure Economic Loss

(1)

Environmental Damage

(1)

Damage Caused by Hazardous Substances and Other Factors

(1)

The Shipowner's Liability

(2)

Limitation of Liability

(2)

Channelling of Liability

(1)

Compulsory Insurance

(2)

Insurance Certificates

(2)

The HNS Fund

(1)

The HNS Fund's Obligations

(1)

The HNS Fund's Defences

(1)

Subrogation and Recourse

(1)

Time Bar

(1)

Jurisdiction and Enforcement of Judgments

(1)

Operation of the HNS Fund

(1)

General Remarks

(1)

Contributions

(1)

Operation of Special Accounts Postponed or Suspended

(1)

Difference between the HNS Fund and the 1992 Fund Contribution Systems in Respect of Major Incidents

(1)

Concept of Receiver

(1)

Special Contribution Issues Relating to Oil

(1)

Cargoes in Transit

(1)

Entry into Force Conditions

(1)

Preparations for the Entry into Force of the 1996 HNS Convention

(1)

Elaboration of a Draft Protocol to the HNS Convention

(1)

The 2010 Diplomatic Conference

(4)

Packaged Goods

(1)

Liquefied Natural Gases

(1)

Non-submission of Reports on Contributing Cargoes

(1)

Substances to Which the Convention Applies

(1)

Tacit Acceptance Procedure

(1)

Entry into Force Conditions

(1)

Adoption of the 2010 Protocol

(1)

Preparations for the Entry into Force of the 2010 HNS Convention

(1)

Relationship between the HNS Convention and the EU Directive on Environmental Liability

(1)

Concluding Observations

(4)

Chapter 4 Compensation For Pollution Damage Resulting From Exploration For And Exploitation Of Seabed Mineral Resources

B. Soyer

Introduction

(1)

Current Legal Regime and Potential Problems

(12)

Limits and Recoverability of Claims Under OPOL

(1)

Applicability of National and International Regimes and Problems Emerging

(1)

Limitation of Liability for Oil Rigs

(5)

Application of the CLC and Fund Conventions 1992 to Offshore Crafts

(2)

Recoverability of Pure Economic Loss Claims

(1)

The Way Forward

(6)

Extending the Scope of the CLC and Fund Regimes

(2)

Devising a New International Liability Regime

(1)

Political and Practical Difficulties

(2)

The Key Features of a Global Solution

(2)

Concluding Remarks

(3)

Chapter 5 Proposals For Legislative Reform Following The Deepwater Horizon Oil Spill

Charles B. Anderson

Introduction

(1)

Initial Reform Proposals: 111th Congress

(8)

Removal of OPA-90 Limits of Liability

(1)

Certificates of Financial Responsibility

(1)

The Oil Spill Liability Trust Fund

(1)

Natural Resource Damage Assessment

(2)

Limitation of Liability Act

(1)

Jones Act and Death on the High Seas Act

(1)

Pending Proposals on Punitive Damages: 112th Congress

(3)

Conclusion

(2)

Chapter 6 "To The Great Damage And Common Nuisance Of All Liege Subjects Of Our Lady The Queen": Oil Pollution Claims And Public Nuisance

Simon Rainey

The Criminal Offence of Public Nuisance

(1)

A Typical Example of an Oil Pollution Incident: The "Sea Empress" Casualty

(3)

The Development of the Tort of Public Nuisance

(5)

Public Nuisance Distinguished from Private Nuisance

104

(3)

Why does the Tort of Public Nuisance Matter in the Context of Modern Oil Pollution Claims?

107

(1)

The Recoverability of "Pure Economic Loss" in Public Nuisance

107

(16)

A More Favourable Burden of Proof for the Claimant?

115

(8)

The Four (or Five?) Necessary Elements of the Tort of Public Nuisance

123

(16)

Is there a Public Nuisance?

124

(4)

Has the Claimant Suffered Particular Injury or Damage?

128

(5)

Is the Particular Damage Direct and Not Merely a Consequential Damage?

133

(5)

Is the Particular Loss or Damage a Foreseeable Consequence of the Nuisance?

138

(1)

Is the Particular Damage of a Substantial Character?

138

(1)

Conclusions

139

(2)

Chapter 7 Avoiding International Legal Regimes: The Erika Experience

Luc Grellet

Introduction

141

(1)

Administrative Sanctions (Contravention De Grande Voirie)

142

(1)

Reliance on Waste Disposal Laws in Lieu of the International Regime for Oil Pollution

143

(4)

Criminal Law

147

(4)

The Legal Regime Applicable to the Pollution Offence

149

(2)

The Lack of Competence in the Criminal Court to Compensate the Damage caused by the Pollution from the Erika

151

(4)

Chapter 8 Maritime Liability And Compensation In EU Law

Dr Henrik Ringbom

Introduction

155

(1)

Implementing the International Liability Rules

156

(5)

The Relevant International Liability Conventions

156

(2)

Ratifying the International Conventions

158

(2)

Implementing Provisions of the International Conventions

160

(1)

Complementing the International Liability Rules

161

(5)

Complementing with General EU Environmental Law

161

(2)

Complementing with Criminal Liability

163

(2)

Complementing by "Improving" the International Rules on Particular Issues

165

(1)

Places of Refuge

165

(1)

Passengers

166

(1)

Other EU Law Implications

166

(3)

Jurisdiction and Recognition and Enforcement of Judgments

166

(2)

EU Waste Legislation

168

(1)

Concluding Observations

169

(6)

PART 2 POLLUTION LIABILITIES AND THIRD PARTIES

Chapter 9 Environmental Salvage: Time For A Change?

Archie Bishop

Introduction

175

(1)

Current State of Law

175

(1)

Reasons for Change and the Proposed Changes

176

(4)

Article 1 (d) of the Salvage Convention 1989

177

(1)

Article 13 of the Salvage Convention 1989

177

(1)

Revised Article 14 of the Salvage Convention 1989

178

(2)

Conclusion

180

(1)

Chapter 10 Recent Developments In P&I Cover For Pollution: Terrorism, Piracy And Sanctions

Luke Readman

Introduction

181

(1)

The Traditional Role of the P&I Clubs as Oil Pollution Insurers

181

(2)

Developments in P&I Cover

183

(8)

P&I and War Risks

183

(1)

P&I Cover and Terrorism

184

(2)

P&I Cover and Piracy

186

(1)

P&I Cover and Sanctions

187

(4)

Chapter 11 The Liability Of Charterers For Marine Pollution

Richard Williams

Introduction

191

(1)

The Direct Liability of Charterers to Third Party Claimants

192

(9)

International Conventions

192

(1)

CLC 1969 and CLC 1992

192

(3)

The 2010 HNS Convention

195

(1)

The Bunkers Convention

195

(2)

National or Regional Statutes

197

(1)

US Federal and State Statutes

197

(1)

Federal Statutes

197

(1)

State Statutes

198

(1)

EU Directives

199

(1)

Traditional Common Law or Civil Law Principles

199

(1)

Criminal Liability

200

(1)

The Right of Shipowners and Charterers to Claim Indemnities Inter Se for Liabilities that they may have Incurred to Third Party Claimants

201

(2)

Shipowners' Claims Against Charterers

201

(1)

Charterers' Claims Against Shipowners

202

(1)

Conclusion

203

(2)

Chapter 12 Marine Pollution: Unorthodox Suits And Unorthodox Defendants

Andrew Tettenborn

Introduction: Pollution Liability, Channelling and Unorthodox Defendants

205

(2)

The Scheme of the Argument

207

(1)

The Law of Negligence

207

(6)

Cargo Interests

207

(1)

Other Ship Interests

208

(1)

Other Negligence Defendants

209

(1)

Negligence: Two Special Cases

209

(2)

Negligence: The Losses Compensable

211

(2)

The Place of Public Nuisance

213

(4)

Claims in Private Nuisance

217

(1)

Other Liabilities

218

(1)

A Final Matter: Exclusions

219

(6)

PART 3 PUBLIC LAW ASPECTS

Chapter 13 Maritime Pollution And State Liability

Simon Baughen

Introduction

225

(1)

International Law

226

(10)

Customary International Law and State-to-State Claims for Transboundary Pollution

226

(2)

International Conventions and Places of Refuge

228

(1)

The 1982 UN Convention on the Law of the Sea

229

(2)

Customary International Law and the Rights of Vessels in Distress

231

(3)

Customary International Law as a Cause of Action for Private Parties

234

(2)

Liability Under Domestic UK Law

236

(12)

Sovereign Immunity

237

(1)

Breach of Statutory Duty

238

(1)

Negligence

239

(1)

Public Nuisance

240

(1)

Liability of Port Authorities

240

(2)

Statutory Liability of the SOSREP

242

(1)

Schedule 3A, Paragraph 1

242

(1)

MSA, Schedule 3A, Paragraph 2

243

(1)

MSA, Schedule 3A, paragraph 3

244

(1)

MSA, Schedule 3A, Paragraph 4

244

(1)

Power to Establish a Temporary Exclusion Zone

244

(1)

Offshore Installations

244

(1)

MSA, Schedule 3A, Paragraph 14: Compensation

245

(1)

MSA, Schedule 3A, Paragraph 15: Recovery of Costs Incurred in Complying with a Direction

246

(1)

State Liability and the CLC, HNS and Bunkers Conventions

246

(1)

Limitation by Public Bodies Under the LLMC 1976

247

(1)

Three Recent Developments

248

(4)

The IMO Guidelines

248

(1)

EU Law and Ships in Distress

248

(1)

Article 20a Plans for the Accommodation of Ships in Need of Assistance

249

(1)

Article 20b Decision on the Accommodation of Ships

249

(1)

Article 20c Financial Security and Compensation

250

(1)

Article 20d Examination by the Commission

250

(1)

The CMI Draft Instrument on Places of Refuge 2009

250

(2)

Conclusion

252

(3)

Chapter 14 Whatever Happened To European Directive 2005/35/EC? Europe's Ambivalent Approach To The Fight Against Marine Pollution And Its Consequences For Seafarers

Marc A. Huybrechts

Prologue: The Erika and Prestige Disasters and their Legal Consequences

255

(1)

The Overall Tenor of Directive 2005/35/EC

256

(1)

The Annulment of the 2005 Framework Decision

257

(1)

Criticism of the 2005 Directive

258

(1)

Conflict between the 2005 Directive and UNCLOS and MARPOL

258

(1)

Other Difficulties with the 2005 Directive

259

(1)

Violation of UNCLOS

259

(1)

The Assault on the 2005 Directive

260

(1)

The Decision of the European Court on the Legality of the 2005 Directive

260

(2)

Some Critical Comments on the Intertanko Decision

262

(2)

The Consequences of Intertanko

264

(1)

Amendments Introduced by the 2009 Directive

265

(1)

The Promised and Expected Fair Treatment of Seafarers

266

(1)

The IMO Guidelines on the Fair Treatment of Seafarers

266

(1)

The French Erika Decisions

267

(1)

Later French Penal Developments

267

(1)

An Actual Assessment with Reference to the Treatment of Seafarers

268

(1)

Conclusion

268

(3)

Chapter 15 Impact Of Port State Control On Pollution At Sea

Dr Oya Ozcayir

Oil Pollution Generally

271

(4)

What is Port State Control?

275

(1)

Emergence of PSC

276

(2)

Basic Principles of all Regional MOUs

278

(1)

Rules Governing PSC Inspections

278

(2)

The IMO Resolution A. 1051(27), Procedures for Port State Control, 2011

278

(1)

Regional MOUs and Annexes

279

(1)

The EC Directives on PSC

279

(1)

PSC Inspections

280

(1)

Detention

281

(1)

Recent Changes Under the PSC System

282

(2)

"Relevant Instruments" Related to Marine Pollution

284

(5)

The International Convention for the Safety of Life at Sea, SOLAS 1974 and Subsequent Protocols

285

(1)

International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, MARPOL 73/78

286

(2)

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW)

288

(1)

Conclusion

289

(2)

APPENDICES

1 International Convention on Civil Liability for Oil Pollution Damage, 1992 (Civil Liability Convention 1992)

291

(8)

2 International Convention on the Establishment of An International Fund for Compensation for Oil Pollution Damage, 1992 (Fund Convention 1992)

299

(16)

3 International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunker Convention 2001)

315

(10)

4 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (HNS Convention 1996)

325

(30)

5 Protocol of 2010 to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996

355

(14)

6 Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources (CLEE) 1977

369

Index

311

Professor Bari Soyer is the Director of the Institute of International Shipping and Trade Law at Swansea University. He is a member of the British Maritime Law Association and British Insurance Law Association. He is the author of Warranties in Marine Insurance published by Cavendish Publishing (2001), and of an extensive list of journal articles published in elite journals such as Lloyds Maritime and Commercial Law Quarterly, Journal of Business Law, Torts Law Journal and Journal of Contract Law.

Professor Andrew Tettenborn has been attached to the Institute of International Shipping and Trade Law at Swansea Law School since 2010. He has also taught at the universities of Cambridge, Exeter and Geneva, has written extensively on widespread aspects of private, shipping and commercial law, and sits on the editorial board of Lloyd's Maritime & Commercial Law Quarterly. He has held visiting positions at Melbourne University, the University of Connecticut and at Case Law School, Cleveland, Ohio, USA.

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