Pollution from Ships’ Bunkers and the Advent of the Bunkers Convention

Part of the Hamburg Studies on Maritime Affairs book series (HAMBURG, volume 5)


Strict Liability State Party Fund Convention Pollution Damage Bunker Fuel 
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  1. 1.
    See Documentation C.M.I. 1968 — I, at 68: “2 The stranding damaged many of the cargo tanks and by March 20 it was estimated that 30,000 tons of oil had spilled into the sea. On March 25, oil began to arrive on the Cornish beaches, 100 miles of coastline being affected. On March 26 high seas and strong winds caused the ship to break her back, releasing, it is estimated, a further 30,000 tons of crude oil. Between March 28 and 30 the ship...” It was likely that more oil escaped afterwards. For instance, in: Braekhus, Sjur/ Rein, Alexander, Handbook of P&I Insurance (1979), p. 184, it is said that 120,000 tons of crude oil escaped and caused extensive damage. As well, on the IMO website, Torrey Canyon is said to have spilled her entire cargo of 120,000 tons of crude oil into the sea: see < Environment/mainframe.asp?topic_id=231> (visited 19 May 2005).Google Scholar
  2. 2.
    The TOVALOP and the CRISTAL are reprinted in: Lloyd’s Shipping Law Library: The Ratification of Maritime Conventions (2004), Vol. 4, II.7.60 and II.7.120. The TOVALOP came into effect in October 1969. Following the establishment of the TOVALOP, oil-cargo interests established the CRISTAL in 1971 to provide additional compensation over and above that available under the TOVALOP where the cargo was owned by a party to the CRISTAL.Google Scholar
  3. 3.
    ITIA is a mutual P&I insurer set up in the aftermath of the Torrey Canyon disaster of 1976. It provided cover for liabilities assumed under TOVALOP and those for which the owner was legally liable under statute or otherwise by reason of a discharge or threatened discharge of oil. See Wu, Chao, Pollution from the Carriage of Oil by Sea: Liability and Compensation (1996), p. 110.Google Scholar
  4. 5.
    Wu, Chao, supra, note 3, p. 105: “The attempt to bring the voluntary regime into line with the convention system was to ensure that the same universal level of liability applied to all shipowners worldwide.” See also Abcassis, David W. (ed.), Oil Pollution from Ships (1985), p. 305: “... and other changes were made so that the agreement mirrored the Liability Convention very closely.” The changes were made so that the agreements could be brought into line with the convention system and ensure the same universal level of liability applied to all shipowners worldwide.Google Scholar
  5. 6.
    Wu, Chao, ibid., or Abecassis, David W. (ed.), ibid. Google Scholar
  6. 7.
    TOVALOP Standing Agreement, reprinted in: Lloyd’s Shipping Law Library: The Ratification of Maritime Conventions (2004), Vol. 4, II.7.60, Art. VII(A).Google Scholar
  7. 8.
    TOVALOP Supplement, Clause 1(1)(A): “Applicable Incident”, reprinted in ibid. Google Scholar
  8. 11.
    Wu, Chao, supra, note 3, p. 119.Google Scholar
  9. 12.
    Ibid., p. 37.Google Scholar
  10. 16.
    DelaRue, Colin/ Anderson, Charles B., Shipping and the Environment (1998), p. 71, it is of an opinion that the ratification was also quickened by two major incidents occurring within the weeks of the conference. These two incidents were: Aegean Sea on 3 December 1992 and Braer on January 1993.Google Scholar
  11. 26.
    See IOPC Fund Annual Report 1998, at 111; IOPC Fund Annual Report 1997, at 126.Google Scholar
  12. 27.
    DelaRue Colin M./ Anderson, Charles B. supra, note 16, p. 80.Google Scholar
  13. 28.
    The Merchant Shipping Act 1995 provides that the owner of a ship has strict liability for damage caused by spills of persistent oil. However, it does not impose a mandatory obligation for insurance on most ships. Only tankers and fish-factory ships are legally obliged to have insurance to enter or operate in UK waters, see Section 154. The Merchant Shipping Act 1995 is reprinted in: Hill, Christopher, Maritime Law (2003), Appendix 1, p. 473.Google Scholar
  14. 29.
    The OPA 90, reprinted in: DeLaRue Colin/Anderson, Charles B. supra, note 16, Appendix 5, p. 1005. §§2701 (37): “‘vessel’ means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, other than a public vessel.”Google Scholar
  15. 30.
    Wu, Chao, ‘Liability and Compensation for Bunker Pollution’, 33 J. Mar. L. & Com. 553 (2002), at 554: “Those who have followed the development of the international law of tanker pollution compensation will recall that the initial proposal for a liability regime for bunker pollution was tabled at an IMO diplomatic conference as early as 1969, during the discussion that led to the CLC...”Google Scholar
  16. 31.
    See Documentation C.M.I.1968-I. The questionnaire received replies from national associations at the time of its meeting. For the detailed replies, see Documentation C.M.I. 1968-I and Documentation C.M.I.-III.Google Scholar
  17. 32.
    See Documentation C.M.I. 1968-III, pp. 2–9, at 2.Google Scholar
  18. 33.
    See ibid., pp. 32–41, at 34: “...It further feels that in view of the motives behind present considerations, it is only crude oil that really matters. Apart from this, any further extension of the kinds of damages or substances to be covered would lead to far-reaching difficulties in definition as well as consequences.” “Crude oil” in this presentation could be understood as the oil cargo carried in the tankers.Google Scholar
  19. 34.
    For example, see ibid., at 92 “The French maritime law association is in favour of the scope: the convention should cover damage by pollution of oil carried as cargo excluding bunkers.” It was quite directly and obviously expressed. Also, the Yugoslav maritime law association, see ibid., at 114: “we are of the opinion that all crude oil pollution damages should be covered and we would in principle prefer to include also those caused by bunker oils. The quantities carried on modern ships as bunker oil are quite substantial. However, we realise, that if bunkers are also included, the Convention would apply practically to all ships in the Worlds Merchant Marine, and we think, therefore, that these damages might be left out.”Google Scholar
  20. 35.
    <> (visited 3 February 2005).Google Scholar
  21. 37.
    The 1976 Convention on Limitation of Liability for Maritime Claims, as well as its 1996 Protocol, reprinted in: Lloyd’s Shipping Law Library: The Ratification of Maritime Conventions (2004), Vol. 2, II 2.330 and II.2.340. They will thereafter be called LLMC conventions or LLMCs in this research. The LLMC conventions will be discussed in detail in Chapter 5.Google Scholar
  22. 41.
    For further details of the technical aspects of bunker-oil spillages see data provided by the International Tanker Owners Pollution Federation Ltd and incorporated in a submission by the CMI to the IMO Legal Committee in 1996: Technical aspects of bunker oil spillages, particularly from non-tankers, see IMO LEG 74/4/2; and Clark, R.B., Marine Pollution (2001), pp. 64–97.Google Scholar
  23. 42.
    Ansell, D.V/ Dicks, B., et al., ‘A Review of the Problems Posed by Spills of Heavy Fuel Oil’, available at: <> (visited 31 March 2005): “Over the past 25 years almost 40% of the 400 plus ship-source oil spills attended on-site around the world by ITOPF’s technical staff have involved medium or heavy grades of fuel oil, either carried by tankers as cargo or used by all types of ship as bunker fuel. The high percentage is indicative of the fact that spills of fuel oils often cause cleanup problems, and give rise to claims to compensation that are out of proportion to the amount of oil spilled.” See also Ian C. White, ‘Factors Affecting the Cost of Oil Spills’, available at: <http://www.> (visited 31 March 2005).Google Scholar
  24. 43.
    See ‘Oil Pollution a Dead Issue?’ 2 Marine Pollution Bulletin, Issue 9, September 1971, pp. 129–130, at 130.CrossRefGoogle Scholar
  25. 45.
    See: <> (visited 23 September 2003). See also DelaRue Colin M. / Anderson, Charles B., supra, note 16, p. 263: “although only oil tankers can cause very large spills, oil tankers are not the only ships carrying pollutants. Many bulk carriers and container ships carry bunker fuel of 10,000 tons or more, and there are large quantities than many of the world’s tankers carry as cargo.”Google Scholar
  26. 46.
    The same opinion was mentioned in ‘Leading Article: Good Oil’, Lloyd’s list, October 14 1998.Google Scholar
  27. 47.
    See IMO LEG75/5/1. These 12 largest oil spills were according to the data probably from 1975 to 1997.Google Scholar
  28. 48.
    See IMO LEG 75/5/1.Google Scholar
  29. 49.
    <> (visited 19 May 2005). The fuel was spilled from this 7,997 GT Bahamian wood carrier Pallas, which drifted aground off Germany’s Amrum Island in the North Sea in 1998. This incident oiled nearly 30,000 sea birds and environmental groups predicted that the spill could eventually affect more than 100,000 birds.Google Scholar
  30. 50.
    <> (visited 19 May 2005).Google Scholar
  31. 51.
    See ‘Consultation on Implementation of the Bunkers Convention’, available at: <> (visited 24 December 2005), at 5.Google Scholar
  32. 52.
    See UKP&I Club: Analysis of Major Claims 1993.Google Scholar
  33. 57.
    Wu, Chao, supra, note 3, p. 41.Google Scholar
  34. 62.
    For further discussion regarding “persistent” oil, see Abecassis, D. W. (ed.), supra, note 5, pp. 196–197.Google Scholar
  35. 69.
    Wu, Chao, supra, note 3, p. 45.Google Scholar
  36. 75.
    Brodecki, Z., ‘New Definition of Pollution Damage’, Lloyd’s Mar. & Com. L.Q. (1985), pp. 382–391, at 390.Google Scholar
  37. 77.
    See Wu, Chao, supra, note 3, pp. 281–288, for more discussion about the distinction between “salvage” and “preventive measures”.Google Scholar
  38. 91.
    Wu, Chao, supra, note 3, p. 171. The parties (for example, the servants or agents of the owner or the members of the crew, the pilot, any charterer, manager or operator of the ship and so on who are on the list in Article 4(2) of the CLC Protocol 1992) are protected by channelling in the absence of wilful misconduct. They will not be primarily liable towards claimants, but can be secondarily liable to the shipowner in an action for recourse.Google Scholar
  39. 98.
    Wu, Chao, supra, note 30, at 559.Google Scholar
  40. 103.
    For example, in Documentation C.M.I.1968-I, at 112, the Report of the International Subcommittee: “The arguments advanced against imposing liability without fault include the following: 1. It would be inequitable to give those sustaining pollution damage a preferred status vis-à-vis personal injury, death and property damage claimants with claims arising out of other marine casualties. 2. A seaworthy steamship or motor vessel, properly manned, is not per se a dangerous instrumentality, and the operator should not be required to pay for or insure against losses not caused by his fault...3. Oil cargoes are not per se dangerous, and their owners should not be required to pay for or insure against losses caused by such cargoes. 4. In a competitive market, it may not be possible for the ship-owner to pass on the extra cost of insurance against liability without fault to the shipper in the form of additional freight; shipowners large enough to be self-insurers may have an advantage over small operators. Furthermore, the owner of tankers under long term time or consecutive voyage charter would be unable to increase the charter rate or hire or freight so as to recover the cost of insuring against liability without fault. 5. the Liberian Board of Investigation found the ‘Torrey Canyon’ at fault. Hence, no need for a convention imposing liability without fault is indicated by the case which prompted this study.”Google Scholar
  41. 104.
    See Documentation C.M.I.1968-III, pp. 145–146.Google Scholar
  42. 105.
    Wu, Chao, supra, note 3, pp. 58–59, the reference is from: O.R. 1969, LEG/CONF/C.2./WP.35, November 24, 1969, pp. 596–597.Google Scholar
  43. 107.
    Abcassis, David W. (ed.), supra, note 5, p. 206. Under the CLCs, the provision was introduced on the ground of fairness, despite anxieties on the part of some that it would weaken the concept of strict liability. Any footnotes omitted.Google Scholar
  44. 110.
    See Documentation C.M.I. 1968-III. Report submitted by International Subcommittee, at 146.Google Scholar
  45. 121.
    HNS cargo is intended to be regulated under the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances, adopted by the IMO in 1996, which has not come into force. The convention is reprinted in: Lloyd’s Shipping Law Library: The Ratification of Maritime Conventions (2004), Vol.4, II.7.125.Google Scholar
  46. 124.
    See Coles, Richard/ Ready, Nigel, Ship Registration: Law and Practice (2002), Özçayir, Z. Oya, Port State Control (2001), pp. 10–12, for more details about ship’s registration.Google Scholar
  47. 125.
    This convention was adopted by the International Maritime Organization in 1969 and entered into force in July 1982, reprinted in: Lloyd’s Shipping Law Library: The Ratification of Maritime Conventions (2004), Vol.2, II.3.70. It was the first successful attempt to introduce a universal tonnage measurement system.Google Scholar
  48. 137.
    Griggs, Patrick, ‘International Convention on Civil Liability for Bunker Oil Pollution Damage‘, available at: <> (visited 5 April 2005).Google Scholar
  49. 138.
    See ibid. Google Scholar
  50. 163.
    Wu, Chao, supra, note 3, p. 72.Google Scholar
  51. 167.
    Wu, Chao, supra, note 3, p. 74, for similar issue under CLCs.Google Scholar
  52. 168.
    Gauci, Gotthard, Oil Pollution at Sea: Civil Liability and Compensation for Damage (1997), pp. 252–253. See also Hazelwood, Steven J., P&I Clubs Law and Practice (2000), p. 57: “The reason for including a jurisdiction clause in Club Rules is based upon the principle that issues involving the mutual association of members should not be solved in different ways according to the various national home states of the international body of members, but that all issues should be decided in accordance with one particular regime in order to achieve uniformity, or mutuality, or treatment throughout the international spread of membership.”Google Scholar
  53. 184.
    The HNS Convention, see supra, note 121.Google Scholar
  54. 185.
    CLC Protocol 1992, Art.4(2).Google Scholar

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