Abstract
As the earlier chapters in this book have shown, oil pollution can and does occur at any stage from exploration to final consumption. The object of this chapter is to complement the description of the technical means of preventing pollution from these various sources, provided in chapters 1–12, with an account of the network of international and municipal (that is, national) laws which have been adopted to prevent oil pollution from these sources.
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References
Foster v. Warblington U.D.C. [1906] 1K.B. 648.
See further below
Powers of Criminal Courts Act 1973, s.35.
Under the Geneva Convention on the Continental Shelf, 1958, Article 2(1) and under international customary law.
See Geneva Convention on the High Seas, 1958, Article 2 and Geneva Convention on the Continental Shelf, 1958, Article 4.
Geneva Convention on the Continental Shelf, 1958, Article 5(1).
Geneva Convention on the High Seas, 1958, Article 24. 284. Prevention of Oil Pollution
Geneva Convention on the Continental Shelf, 1958, Article 5(2).
Article 5(3).
Article 5(5).
Article 5(6).
Article 5(7).
The Helsinki Convention on the Protection of Marine Environment of the Baltic Sea Area, 22 March 1974, International Legal Materials (ILM), Vol.13, 1974, p.546; and the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, 16 February 1976, ILM, Vol. 15. 1976, p. 290.
Helsinki Convention, Article 10.
Barcelona Convention, Article 7.
Misc. No.26 (1974), Cmnd. 5748; ILM, Vol. 12, 1973, p. 1319.
By the definition of `discharge’ in Article 2(3).
Annex 1, Regulation 21.
Regulation 9.
Under Regulation 9(1)(b)(iii), it would appear that to be so entitled to discharge oil, the installation would, additionally, have to be `proceeding en route’ but, being in clear conflict with both the letter and evident intention of Regulation 21, this is probably a drafting error. See also D. W. Abecassis, Marine Oil Pollution, University of Cambridge Department of Land Economy, Occasional Paper No.6, 1976, at pp.5253.
The Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships 1973 was accepted at the IMCO International Conference on Tanker Safety and Pollution Prevention (IMCO Document TSPP/CONF/11, 16 February 1978 and TSPP/CONF/11/Add.1, 7 March 1978).
Set up by a Conference on Safety and Pollution Safeguards in the Development of North West European Offshore Mineral Resources. See further V. Fitzmaurice, A Critical Assesment of Pollution Control Laws regulating the Development of Petroleum Resources in the United Kingdom and Norwegian Sectors of the North Sea, (Ph.D. thesis, University of Edinburgh 1977, unpublished), pp.141–143.
U.K. Treaty Series No.101 (1973), Cmnd. 5423; ILM, Vol.13, 1974, p.26, Articles 7, 8 and 10.
Cmnd. 6491 (1976), Articles 17 and 23.
C. Eagleton, Responsibility of States in International Law, 1928, p.90, cited with approval by the Arbitral Tribunal in the Trail Smelter Arbitration (U.S. — Canada, 1938; 1941), 3 R.I.A.A., p.1905, at p. 1963.
Trail Smelter Arbitration, loc. cit. in note 25, at p. 1965. See also the Corfu Channel Case (Merits), LC.J. Reports, 1949, p.4, at p.22, where reference is made to ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary toe the rights of other States’.
See also Stockholm Declaration of the U.N. Conference on the Human Environment (16 June 1972,ILM, Vol.11, 1972, p. 1416 ). Principle 21 provides that `States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.“ Thd Declaration is not a treaty and has no binding force of itself. As a vehicle for the expression of the opinio juris of States, however, it may contribute to the formation of rules of customary law.
See further on the principle of fault in international law, B. Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953, Chap.8, especially at pp.225–226 and G. Schwarzenberger, on International Law, Vol.1, 1957, Chap.35. See also, the analogous question of the basis of liability for pollution of international rivers, A. Lester `Pollution’, in A.H. Garretson, R.D. Hayton, and C.J. Olmstead (eds.), The Law of International Drainage Basins, 1967, For arguments in favour of the introduction of absolute liability, see L. F. E. Goldie, `Liability for Damage and the Progressive Development of International Law’, International and Comparative Law Quarterly, Vol.14, 1965 and Goldie, `International Principles of Responsibility for Pollution’, Columbia Journal of Transnational Law, Vol. 9, 1970.
On `good oilfield practice’, see text below, following note 40.
On the practice of other European States, see the 13-volume series The Law and Practice relating to Pollution Control in the Member States of the European Communities published by Graham and Trotman Ltd.
5.
2.
Fitzmaurice, op.cit. in note 22, at p.532.
3.
S.6.
19(8).
Under s.2. The Continental Shelf (Protection of Installations) Order 1978, S.I. 1978/260, which came into operation on 31 March 1978, revoked all previous Protection of Installations Orders and consolidated the substance of them in one instrument.
S.3. and the following Orders: The Continental Shelf (Jurisdiction) Order, S.I. 1968/892; the Continental Shelf (Jurisdiction) (Amendment) Orders, S.I. 1971/721; S.I. 1974/1490; S.I. 1975/1708; S.I. 1976/1517.
S.5(4), extending to designated areas of the continental shelf the provisions of Part II of the Coast Protection Act 1949.
S.I. 1976/1129.
Schedules Five and Seven.
Schedule 5, Model Clause 17(1)—(2).
The following Orders have been issued under the Act: a Commencement Order, S.I. 1972/644 and the following Offshore Installations Regulations:- Registration, S.I. 1972/702; Managers, S.I. 1972/703; Logbooks and Registration of Death, S.I. 1972/ 1542; Inspectors and Casualties, S.I. 1973/1842; Construction and Survey, S.I. 1974/ 289; Public Inquiries, S.I. 1974/338; Diving Operations, S.I. 1974/1229; Operational Safety, Health and Welfare, S.I. 1976/1019; Emergency Procedures, S.I. 1976/1542; Life-saving Appliances, S.I. 1977/486.
Offshore Installations (Registration) Regulations 1972.
Offshore Installations (Construction and Survey) Regulations 1974.
S.5(4).
Part II having been replaced by the 1976 Petroleum (Production) Regulations.
S.20 refers only to pipelines the construction of which began before 1 January 1976 — the date of entry into force of this Act.
S.21(3)(e).
S.26.
Fitzmaurice, op.cit. in note 22 at p.532.
Royal Decree of 3 October 1975 Relating to Safe Practice etc. in Exploration and Drilling for Submarine Petroleum Resources and Royal Decree of 9 July 1976 Relating to Safe Practice for the Production etc. of Submarine Petroleum Resources. Discussed in Fitzmaurice, Chap. 8.
In text at notes 25 and 26.
In text at note 57.
ILM, Vol.13, 1974, p.552, Article 17.
ILM, Vol.15, p.290, Article 12.
Misc. No.8 (1977), Cmnd. 6791; ILM, Vol.16, 1977, p.1451. The Convention, adopted by an Intergovernmental Conference on 17 December 1976, was open for signature from 1 May 1977 to 30 April 1978 (and for accession thereafter) by the following nine States: Belgium, Denmark, Germany, France, Ireland and Netherlands, Norway, Sweden, and the United Kingdom. Under Article 18, States Parties may unanimously agree to invite other States bordering the North Sea, the Baltic Sea or the Atlantic north of 36 N to accede to the Convention. It might possibly be extended, therefore, to Canada, Finland, German Democratic Republic, Iceland, Poland, Portugal, Soviet Union, Spain and the United States. The Convention will enter into force on the ninetieth day following ratification or accession by four States.
Article 3.
Article 1 (6).
Article 1 (2).
Article 4 (1).
Article 3.
Article 6.
Article 6 expresses these limits by reference to the Special Drawing Rights (SDR) of the International Monetary Fund (IMF). It has been customary in such Conventions to express the limits of liability by reference to the `Poincaré’ franc, based on gold. Since, however, gold no longer provides a basis for expressing cniform amounts in different countries, this Convention — and as will be seen, other oil pollution liability conventions — have adopted as a new unit of account the SDR of the IMF. At the time of the adoption of the Convention, 1 SDR was worth approximately $1.17.
Article 11.
Articles 6(5) and 11(3).
Text in R. Churchill et al, (eds.), New Directions in the Law of the Sea, New York, Oceana Publications Inc., Vol. VI, 1977, p. 507.
See further G.W. Keeton, `The Lessons of the Torrey Canyon“, Current Legal Problems, Vol.21, 1968, pp.94–112, at p.100.
Stephen’s Digest of Criminal Law, 5th ed., 1894, p.140.
See observations of Denning L.J. in Esso Petroleum Co. Ltd. v. Southport Corporation [1954] 2 Q.B. 182 at 197, cited in Keeton, loc. cit. in note 68, at pp.100101.
This account is based on Fitzmaurice, op. cit. in note 22, pp.494–496.
See further E.D. Brown, The Legal Regime of Hydrospace, London, Stevens & Sons, 1971, pp. 127–128.
Preamble.
See note 27 above for citation and on status of the Declaration.
Preamble.
See also the related Recommendation 86(b) (ibid., p.1454) under which Governments are recommended to ensure inter cilia that the provisions of existing treaties are complied with by ships flying their flags.
For a composite text of the Convention, as amended in 1962 and 1969, see ILM, Vol.9, 1970, p.l.
Article IX.
Article X.
See text below, following note 84 and note 157.
The Convention is in ILM, Vol.12, 1973, p.1319 and Annex I is at p. 1335.
Annex I, Regulation 10.
Articles 4–6.
See further E.D. Brown, in Current Legal Problems, Vol.28, 1975, at pp.208–209.
See text above, at note 21.
U.K. Treaty Series No.65 (1965), Cmnd. 2812 and No.23 (1966), Cmnd. 2956.
Misc. No.28 (1973), Cmnd. 5471.
IMCO, Ships Routeing, 3rd ed., 1973 and Supplement 1975.
This is so because, under Article 1 of the 1972 Convention, Parties undertake to give effect to the Rules annexed to the Convention. Rule 10 consists of a list of rules to be observed by ships navigating in or through IMCO traffic separation schemes and Rule 1(a) provides that “These rules shall apply to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels”.
S.1. The Exception is provided for in the Oil in Navigable Waters (Exceptions) Regulations 1972, S.I. 1972/1928.
S.2. Dishcarges into the territorial sea may also be offences under Part II, s.31 of the Control of Pollution Act 1974 once Part II is brought into operation. The Government intends to bring Part II into force before the end of 1979 (The Times, 14 April 1978 ).
Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry, [1972] 2 All E.R. 97; [1974] 1 W.L.R. 505, H.L.
S.5.
The following Regulations have been adopted under S.4: Oil in Nivigable Waters (Ships Equipment) (No.1) Regulations 1956, S.I. 1956/1423 and Oil in Navigable Waters (Ships’ Equipment) Regulations 1957, S.I. 1957/1424, which continue to apply under s.33(2) of the Act.
Under s.17 and the Oil in Navigable Waters (Records) Regulations 1972, S.I. 1972/ 1929, maintained in force by s.33(2) of the Act.
S.9.
Ss.10 and 11, which were brought into force on 1 November 1974 by the Merchant Shipping Act 1974 (Commencement No.1) Order 1974, S.I. 1974/1792. No such rules have been made so far.
S.11(3) but the necessary rules have not been issued yet.
Ss.12 and 13 which have not been brought into effect.
Collision Regulations and Distress Signals Order 1977, S.I. 1977/982, as amended by S.I. 1977/1301.
H.C. Bill 1978–79 [13] Merchant Shipping Bill. Under clause 20, 21 and 39, the Government will be enabled to ratify the International Convention for the Prevention of Pollution from ships, 1973 and its 1978 Protocol; the 1978 Protocol to SOLAS 1974; and the 1976 Protocols to the International Convention on Civil Liability for Oil Pollution Damage 1969 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971.
E.D. Brown, op. cit. in note 72, at pp.139–146.
International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 29 November 1969, U.K. Treaty Series No.77 (1975), Cmnd. 6056; ILM, Vol.IX (1970), p. 25.
Article I(1).
Article II(4).
Article V(1) and (2).
Article VI.
S.I. 1971/1736.
Law No. 71–1002 of 16 December 1971. See further C.A. Colliard, The Law and Practice Relating to Pollution Control in France, London, Graham and Trotman Ltd., 1976, p. 101.
Under an agreement reached at a meeting of the Anglo-French Safety of Navigation Group on 5 September 1978, all ships of more than 1600 tons carrying oil through the Channel will be required to report to monitoring stations on entering the separation zones off Dover, Ushant and the Casquets (The Times, London, 6 September 1978 ).
U.K. Treaty Series No.78 (1969), Cmnd. 4205; ILM, Vol. 9, 1970, p. 359.
For a more extended analysis, see Brown, op. cit. in note 72, at pp.158–162.
Agreement between Denmark, Finland, Norway and Sweden concerning Co-operation in Taking Measures against Pollution of the Sea by Oil, 1971 (S.H. Lay et al, eds., New Directions in the Law of the Sea, Vol.II, 1973, pp. 637–640).
International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, U.K. Treaty Series No.106 (1975), Cmnd. 6183: ILM, Vol.IX (1970), p. 45.
Preamble.
Article III(1).
Article III(2)—(3).
Article III(2).
Article V(1) and (2). The limits of liability established by Article V(1) were 2,000 gold francs per ton, with a ceiling of 210 million gold francs. Under the Merchant Shipping (Sterling Equivalents) (Various Enactments) Order 1978, S.I. 1978/54, the sterling equivalents are £86.23 and £9,054,122.94. Under the Protocol to the 1969 Convention, adopted on 19 November 1976 (Misc. No.26 (1977), Cmnd. 7028; ILM, Vol.16 (1977), p.617) the unit of account was changed from the Poincaré franc to the SDR of the IMF, though non-parties to the IMF have the option to retain the gold franc. See also note 64 above.
Article VH(1).
Article VH(2)—(4), (10) and (11).
Article II. See further E.D. Brown, op. cit. in note 72 at pp.168–171.
Articles V(3) and IX(1) and (3).
Misc. No.26(1972), Cmnd. 5061; ILM, Vol.11,1972, p.284; entered into force October 1978.
The figures laid down in Article 4 of the Fund Convention were 450 and 900 million gold francs. These figures were converted into 30 and 60 million SDR’s by the Protocol of 19 November 1976 (ILM, Vol.16, 1977, p.621 — not yet in force). The sterling equivalents are £19,404,000 and £38,808,000. See also note 119 above.
S.1(1). The Act is now fully in force (Si 1971/1423 and S.I. 1’975/867).
S.3, following Article IH(4) of the Convention.
See text above, around note 68.
S.10(2).
Ss.2 and 4–8.
S.4(7)(b), reflecting the provisions of Article 4(2)(b) of the Convention.
The original agreement is in ILM, Vol.8, 1969, p.497; amendments are published by the International Tanker Owners Pollution Federation Ltd. which administers the scheme.
See text above, following note 114.
The Fund Convention entered into force in October 1978. The original CRISTAL agreement is in ILM, Vol.10, 1971, p.137. Amendments and published by the administering body, the Oil Companies Institure for Marine Pollution Compensation Ltd.
See text above, at note 25.
See further the 13-volumes series cited in note 30 above, especially J. McLoughlin, The Law and Practice Relating to Pollution Control in the Member States of the European Communities: A Comparative Survey, 1976.
Misc. No.1 (1975), Cmnd. 5803; ILM, Vol.13, 1974, p.352. The Convention is not yet in force.
Denmark, France, Germany, Iceland, Luxembourg, Netherlands, Norway, Spain and the United Kingdom.
Article 1(2).
Article 3(c).
Article 4(1) and Annex A, Parts I and II.
Article 12.
The Mediterranean Action Plan provides a model. See Final Act of Conference on the Protection of the Mediterranean Sea (1976), ILM, Vol. 15, 1976, p. 285. Agreement on a complementary Protocol on Land-Based Sources was not reached at the Monte Carlo conference in January 1978.
See further the following section of the annual General Report of the European Communities:- Fifth Report 1971, pp.242–245; Sixth Report 1972, pp.198–202, Seventh Report 1973, pp.235–241; Eighth Report 1974, pp.135–139; Ninth Report 1975, pp.136–139; Tenth Report 1976, pp.152–158. See also the following EEC publications:- “The Protection of the Environment; an Urgent Problem for Industrial Societies”, Bulletin of the European Communities, No.4, 1971, pp.53–58; “A Community Programme for the Environment”, Supplement to Bull. of E.G., No.5, 1972; “Environment Action Programme”, Supplement to Bull. of E.G., No.3, 1973; “Definition of a Community Environment Policy”, Bull. E.C., No.7/8, 1974, pp.1114; State of the Environment. First Report, 1978.
See references appended to Chapter 10.
EEC Council Directive No.75/439/EEC (CJ No.L.194, 25.7.75).
COM (78) 3, published on 24 January 1978.
For a detailed account, see J. McLoughlin, The Law and Practice Relating to Pollution Control in the United Kingdom, Graham & Trotman, 1976, especially Chap.3.
As announced in a House of Commons written reply by the Minister of State at the Department of the Environment (The Times, 14 April 1978).
See, for details, McLoughlin, op. cit. in note 164, at p.102 et seq.
See further, ibid. p.106 et seq.
Ibid.
Ibid., p.108.
For a description of the regulations, see Chapter IX, section 9.2. A list of the regulations is provided in McLoughlin, op.cit. in note 148, at pp.296–298.
EEC Council Directive No.70/220/EEC on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive ignition engines of motor vehicles (OJ No.L76, 6.4. 1970, pl) as adapted to technical progress by EEC Council Directive No. 74/290/EEC (OJ No.L159, 15. 6.74, p.61); EEC Council Directive No. 75/716/EEC on the approximation of the laws of the Member States relating to the sulphur content of certain liquid fuels (OJ No.L 307, 27.11.75, p.22).
See further McLoughlin, op. cit. in note 148, at p.74 et seq.
See text above, following note 84. For the latest draft articles on these subjects, see Part XII of the Informal Composite Negotiating Text, 15 July 1977 (ILM, Vol. 16, 1977 p. 1108 ).
The EEC Commission presented proposals to Foreign Ministers early in May 1978 and in April 1978 IMCO’s Maritime Safety Committee adopted an Anglo-French traffic scheme to keep laden tankers at least 30 miles from Ushant. This scheme, due to be introduced in January 1979, has been criticised by Trinity House, the U.K. lighthouse and pilotage authority, which has itself devised an alternative 200-mile shipping “Motorway” through the English Channel (The Times, 16–18 May 1978 ).
According to Resolution A.237 (VII) of the IMCO Assembly of 12 October 1971, the main objectives of the International Conference on Marine Pollution, 1973, were the achievement, by 1975 if possible but certainly by the end of the decade, of the complete elimination of the willful and intentional pollution of the seas by oil and the minimization of accidental spills.
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Brown, E.D. (1979). The role of law in the prevention of oil pollution. In: Wardley-Smith, J. (eds) The Prevention of Oil Pollution. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-7347-6_13
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