Department for Maritime and Transport Law| May 24th 2018 Dr. Iva Savić Pollution of Sea Department for Maritime and Transport Law| May 24th 2018 Dr. Iva Savić

Types of non-contractual damages death and personal injuries of persons at sea damage to things and the environment OIL POLLUTION > oil as cargo > oil used as fuel nuclear damage wreck removal

CLC SYSTEM Carriage of Oil as Cargo

Damage Scope of damage: damage or loss occurring outside of vessel, marine pollution due to spill of oil (marine environmental damage) reasonable measures (to be) undertaken for restoration purposes Compensation claim Exclusively against shipowner (shipowner’s insurer) – against other persons only if they act with intent or recklessly with knowledge Actio directa vs. Pay-to-be-Paid rule

Limitations of liability 1. shipowner Loss of right to limit – personal act or omission with intent, recklessly with knowledge Limitation of liability fund Mandatory third party liability insurance for vessel carrying over 2000 t of oil Gross tonnage Limit to 5000 gt 4 500 000 SDR 5001-140 000 gt + 431 SDR for each gt over 140 000 gt 89 770 000 SDR 89 800 000 SDR ~ 124 000 000 US$

Limitations of liability 2. International Fund Oil importers countries with more than 150 000 t or crude oil (or other oil) carried through domestic maritime ports Upper liability limit – 203 000 000 SDR Around 280 000 000 US$ (including the shipowner’s part) Fund is responsible: When no shipowner’s responsibility in accordance with the Convention When damage above shipowner’s responsibility When shipowner’s not financially capable to cover damage

3. supplementary fund on EU Initative voluntary Importers – same rules as in Fund Convention Upper liability limit – 750 000 000 SDR Around1 036 000 000 US$ (including the shipowner’s and Fund’s part) TOPIA and STOPIA 1969 – 2003 = 14 000 000 SDR – 750 000 000 SDR 1 : 53,5

2003 Supplementary Fund Convention Oil importers - 750 mil. SDR Third Layer 2003 Supplementary Fund Convention Oil importers - 203 mil. SDR Second Layer 1992 Fund Convention Shipowner / P&I club - 89.8 mil. SDR First Layer 1992 CLC Convention

HNS System Carriage of Hazardous and Noxious Substances

Responsibility and Liability for spill of hazardous and noxious substances International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS, not in force) 2010 Protocol (not in force) What are “HNS”? > defined in IMO’s interntional legal instruments Damage defined in accordance with the CLC/IOPC system + damage due to death/injury on a ship

imo conventions/ regulations defining lists of HNS liquids > International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) (chapter 17 ) gases > International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code) (chapter 19) Solids in bulk > Appendix 9 Code of Safe Practice for Solid Bulk Cargoes (BC Code) Packaged goods > International Maritime Dangerous Goods Code (IMDG Code)

defining HNS GENERAL RULE If a substance has low level of biodegradation or high persistance, high level of bioaccumulation, is classified as toxic/flameable/explosive /corosive or reactive > PROBABLY will be treated as HNS (more than 2 000 HNS)

Damage compensation Two-layer system Shipowner Fund (importers of hazardous and noxious substances) principle: strict liability (relative causation) 3 exclusions (CLC based) + shipper’s omission to notify the shipowner with regard the HNS loaded onto board that have caused the damage, or that caused the failure to obtain the mandatory insurance required by HNS convention

liability limitation * slightly different when incl packaged HNS > max 115 mil SDR obligation to establish liability limitation fund direct claim HNS Fund – liabillity up to 250 mil. SDR - reasons to avail it from liability same as for IOPC Fond vessel tonnage limitation/bulk HNS* up to 2 000 gt 10 mil SDR 2001- 50 000 gt +1500 SDR for each additional gt above 50 000 gt + 360 SDR for each additional gt max. 100 mil. SDR (approx 175 mil. $)

current status 3 ratifications so far (Norway, Canada, Turkey) /+ 5 signatories > long way untill it enters into force >18 months after the date on which it is ratified by at least 12 States, including 4 States each with not less than 2 million units of gross tonnage, and having received during the preceding calendar year a total quantity of at least 40 million tonnes of cargo that would be contributing to the general account

Bunker System oil as fuel

oil fuel marine pollution International Convention on Civil Liability for Bunker Oil Pollution, 2001 /in force since 2008 “BUNKER OIL” = any hydrocarbon mineral oil, including lubricating oil, used or intended to be used for the operation or propulsion of the ship, and any residues of such oil (!) excluding pollution from tankers applies to damage caused on the territory of States Parties (including the territorial sea, and in exclusive economic zones)

differences - compared to clc system modelled on 1969 CLC, but… (!) larger number of potentially liable persons: shipowner, charterer, ship operator, agent; no special protection of third parties (ie salvors…) liability principle: strict liability/ exoneration reasons >CLC based (!) No special limitation of liability system > LLMC/national law applicable compulsory insurance cover for vessels over 1000 gt > actio directa