Protection of the marine environment


ARTICLE 9 ISSUANCE OF PERMITS AND REPORTING



Download 0.82 Mb.
Page10/18
Date18.10.2016
Size0.82 Mb.
#1527
1   ...   6   7   8   9   10   11   12   13   ...   18

ARTICLE 9

ISSUANCE OF PERMITS AND REPORTING


  1. Each Contracting Party shall designate an appropriate authority or authorities to:




  1. issue permits in accordance with this Protocol;




  1. keep records of the nature and quantities of all wastes or other matter for which Jumping permits have been issued and where practicable the quantities actually dumped and the location, time and method of dumping; and




  1. monitor individually, or in collaboration with other Contracting Parties and competent international organizations, the condition of the sea for the purposes of this Protocol.


ANNEX 1
WASTES OR OTHER MATTER THAT

MAY BE CONSIDERED FOR DUMPING


  1. The following wastes or other matter are those that may be considered for dumping being mindful of the Objectives and General Obligations of this Protocol set out in articles 2 and 3:




  1. dredged material;




  1. sewage sludge;




  1. fish waste, or material resulting from industrial Fish processing operations;




  1. vessels and platforms or other man-made structures at sea;




  1. inert, inorganic geological material;




  1. organic material of natural origin;




  1. bulky items primarily comprising iron, steel, concrete and similarly unharmful materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping;and




  1. Carbon dioxide streams from carbon dioxide capture processes for sequestration.




  1. The wastes or other matter listed in paragraphs 1.4 and l.7 may be considered for dumping, provided that material capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to fishing or navigation.




  1. Notwithstanding the above, materials listed in paragraphs 1.1 to 1.8 containing levels of radioactivity greater than de minimis (exempt) concentrations as defined by the IAEA and adopted by Contracting Parties, shall not be considered eligible for dumping; provided further that within 25 years of 20 February 1 994, and at each 25 year interval thereafter, Contracting Parties shall complete a scientific study relating to all radioactive wastes and other radioactive matter other than high level wastes or matter, taking into account such other factors as Contracting Parties consider appropriate and shall review the prohibition on dumping of such substances in accordance with the procedures set forth in article 22.




  1. Carbon dioxide streams referred to in paragraph 1.8 may only be considered for dumping, if:

  1. disposal is into a sub-seabed geological formation; and

  2. they consist overwhelmingly of carbon dioxide.

NOTES AND QUESTIONS


  1. The reverse list approach. Is the reverse list approach better than the 1972 Convention's approach of forbidding the dumping of listed substances?

  2. Ocean carbon sequestration. Does the 1996 Protocol allow ocean carbon sequestration—the storage of carbon dioxide beneath the sea? Is this a good idea? Will ocean carbon sequestration help combat climate change?

  3. Radioactive wastes. To what extent can radioactive waste be dumped into the sea? Can low level radioactive waste (equipment and clothing) be dumped?

  4. Offshore oil and gas operations. Does the 1996 Protocol unduly interfere with seabed mining or offshore oil and gas operations? Article I (4.3) provides that "the disposal of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off-shore processing of seabed mineral resources is not covered by the provisions of this Protocol."

  5. Dumping of sewage, sludge and medical wastes. Does the Protocol permit ocean dumping of sewage, sludge and medical waste? Congress banned the dumping of these wastes after December 31, 1991. See 33 USC sec. 1414b (a)(l)(B).

  6. Dumping of dredge spoil. Does the Protocol allow dumping of dredge spoil?

  7. Incineration at sea. Does the Protocol permit incineration of wastes at sea ? Article I (5.2) provides that "incineration at sea" does not include "the incineration of wastes or other matter on board a vessel, platform, or other man-made structure at sea if such wastes or other matter were generated during the normal operation of that vessel, platform, or other man-made structure at sea."

  8. Exceptions. Are the exceptions in the 1996 Protocol too broad or are they reasonable?

  9. Precautionary and polluter pays principles. Are these two principles part of the 1996 Protocol? Are they meaningful in this context or just window dressing?

  10. US Ratification. Should the United States ratify the 1996 Protocol? In 2008 the Bush Administration submitted the Protocol to the US Senate for ratification, but no action has been taken. What are the advantages of ratification for the United States as opposed to unilateral action?

PROBLEM 7-7
STORING CARBON DIOXIDE UNDER THE SEABED TO COMBAT CLIMATE CHANGE
Nation B has embarked on a program to aggressively decrease carbon emissions to combat climate change. The method Nation B is relying upon to accomplish this is carbon capture and sequestration, a variety of technologies that involve capturing carbon dioxide from electric gene rating facilities and industrial processes, compressing the gases captured into liquids, transporting the liquid C02 by pipeline to an underground storage facility, where the C02 is injected deep into an impermeable geologic formation where it will be permanently stored and sequestered from the environment. Since Nation B has limited capacity to store C02 on its territory, it is proposing to sequester and store C02 in the seabed offshore in its EEZ. Nation B has, for this purpose, identified 3 sites that it deems suitable for long-term carbon storage and sequestration.
Nation B is a party to the London Dumping Convention and its 1996 Protocol. In 2006, Annex I of the 1996 Protocol was amended as follows:
AMMENDMENT TO ANNEX 1 TO THE LONDON PROTOCOL
1.8 Carbon dioxide streams from carbon dioxide capture processes for sequestration
........................................................................


  1. Carbon dioxide streams referred to in paragraph 1.8 may only be considered for dumping, if:




  1. disposal is into a sub-seabed geological formation; and




  1. they consist overwhelmingly of carbon dioxide. They may contain incidental associated substances derived from the source material and the capture and sequestration processes used; and




  1. no wastes or other matter are added for the purpose of disposing of those wastes or other matter.

What criteria must Nation B satisfy in order to carry out its carbon capture and sequestration program in its EEZ? Is an aggressive carbon capture and sequestration program the answer to preventing climate change? Consider the costs and risks involved in (1) capturing and compressing C02; (2) transporting C02; and (3) injecting C02 deep into the earth. What assurances are there that the "impermeable" rock formations into which C02 is injected will not leak in the future?



PROBLEM 7-7

STORING CARBON DIOXIDE UNDER THE SEABED TO COMBAT CLIMATE CHANGE
Nation B has embarked on a program to aggressively decrease carbon emissions to combat climate change. The method Nation B is relying upon to accomplish this is carbon capture and sequestration, a variety of technologies that involve capturing carbon dioxide from electric generating facilities and industrial processes, compressing the gases captured into liquids, transporting the liquid C02 by pipeline to an underground storage facility, where the C02 is injected deep into an impermeable geologic formation where it will be permanently stored and sequestered from the environment. Since Nation B has limited capacity to store C02 on its territory, it is pro posing to sequester and store C02 in the seabed offshore in its EEZ. Nation B has, for this purpose, identified 3 sites that it deems suitable for long-term carbon storage and sequestration.
Nation B is a party to the London Dumping Convention and its 1996 Protocol. In 2006, Annex I of the 1996 Protocol was amended as follows:

AMENDMENT TO ANNEX l TO THE LONDON PROTOCOL
1.8 Carbon dioxide streams from carbon dioxide capture processes for sequestration
........... ..... .......................... ...........
4 Carbon dioxide streams referred to in paragraph 1.8 may only be considered for

dumping, if:


. l disposal is into a sub-seabed geological formation; and
.2 they consist overwhelmingly of carbon dioxide. They may contain incidental

associated substances derived from the source material and the capture and

sequestration processes used; and
. 3 no wastes or other matter are added for the purpose of disposing of those

wastes or other matter.


What criteria must Nation B satisfy in order to carry out its carbon capture and sequestration program in its EEZ? Is an aggressive carbon capture and sequestration program the answer to preventing climate change? Consider the costs and risks involved in (1) capturing and compressing C02; (2) transporting C02; and (3) injecting C02 deep into the earth. What assurances are there that the "impermeable" rock formations in to which C02 is injected will not leak in the future?

SECTION VII. Marine Casualties and Liability for Damages

Over the past sixty years international law has created a framework to deal with marine casualties involving accidental spills of oil or hazardous substances. Much of this legal architecture was erected in response to spectacular and tragic events. For example, on March 18, 1967, the tanker Torrey Canyon ran aground on Seven Stones reef near the Isles of Scilly near the United Kingdom. In a largely futile effort to minimize the damage from spilled oil, the U K destroyed the tanker without the permission of the flag state. Two years later the Brussels Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969), was concluded, which permits states (Article 1) to take "such measures on the high seas as may be necessary to prevent, mitigate, or eliminate grave and



imminent danger to their coast line or related interests from pollution or threat of pollution of the sea by oil, following upon a marine casualty."20 The wreck of the Torrey Canyon the subsequent pollution caused the International Maritime Organization (IMO) to convene diplomatic conferences that adopted two landmark treaties creating an international regime to compensate for damages from oil spills into the sea : the International Convention on Civil Liability for Oil Pollution Damage (1969) (the CLC or Civil Liability Convention), and the International Convention on the Establishment of an Oil Pollution Fund (1971) (the Fund Convention). In the United States, the wreck of the Exxon Valdez, an oil tanker that spilled an estimated 11 million gallons of crude oil in Prince William Sound, Alaska, pol luting the sea and some 1300 miles of coastline. In response to this casualty the United States enacted the Oil Pollution Act 1990 (OPA), which imposes strict liability for damages upon "responsible parties" in cases of spills of oil into the navigable waters of the United States or its Exclusive Economic Zone . (33 U S C sees. 2701 et seq.). There was also an international response to the spill of the Exxon Valdez: I MO sponsored an international conference that adopted the International Convention on Oil Pollution Preparedness, Response, and Cooperation (1990) (OPRC), which entered into force in 1995.21
The focus of this section is to explore liability for accidental oil spill maritime pollution under the US OPA 90 as compared with liability under the international law regime, the CLC and Fund Conventions. As a vehicle for making this comparison, consider the following problem:
PROBLEM 7-8
AN INTERNATIONAL OIL TANKER CASUALTY
On July 14, 1996, the 500.000 ton S.S. Persian Festiva collided in a fog with the S.S. Multi-Media Transport Festoon. The Persian Festiva is a Liberian registered supertanker, owned by the Festiva Ltd., a Liberian subsidiary of a major United States shipping company. The Multi-Media Transportation Company's Festoon is a United States registered container vessel. The collision happened in the Pacific Ocean exactly 198-nautical-miles from the United States’ baseline from which the US territorial sea is measured. It is substantially further from the baselines of other states. This location is generally west of the boundary between Canada and the United States at the Dixon Entrance. The Persian Festiva supertanker was en route from the Persian Gulf to deliver more than 175,000 tons of crude oil at a Canadian port. It was constructed in 1992 without a double hull.
The collision was the result of a design flaw in the supertanker radar system, which prevented it from showing the necessary information regarding the S.S. Festoon in order to determine that the vessels were on a collision course. At the time of the accident a qualified member of the crew was watching the radar screen. Neither the members of the crew nor the owner, however, was aware of the flaw before the accident. The supertanker was piloted by the captain, Mohammed Khori, a Liberian national. The United States Coast Guard later determined that Khori was drunk at the time of the collision. He had a history of drinking on the job. The owner of the supertanker was aware of this and had ordered Khori to stop consuming alcohol when aboard his vessel. Khori was also required to attend a month-long program designed to stop employees from drinking on the job. He attended this program and the instructor reported that he had successfully completed it. The owners had no information suggesting that after he completed the program he continued drinking alcohol on the job. When the lookout on the supertanker heard the fog horn of the freighter, it was too close for the supertanker to alter its course, direction, or speed in order to avoid a collision. The collision punctured one of the holds of the supertanker that contained crude oil. As a result, 20 percent of the crude oil carried by the vessel spilled into the ocean and spread over a large area of the sea. An ocean current in the area carried some of the discharge into the Canadian 12-nautical-mile territorial sea. That oil caused injuries to the living natural resources in the area. The supertanker crew was able to seal the hole in the vessel and stop the remaining oil in the vessel from discharging.
The United States Coast Guard was notified of the collision and arrived on the scene. It deployed equipment to clean up as much of the crude oil in the sea as possible. Unfortunately, due to the sea conditions and delays in getting the clean up equipment to the area, much of the oil could not be recaptured. The effect of the spill was devastating to the near shore areas of Canada. Thousands of seabirds and sea otters were killed, and the marine ecosystem was severely damaged. Although no humans were physically injured, damage to public and private property was extensive. In addition, the spill had significant adverse effects on the tourist and fisheries industries in the affected areas.
The US Coast Guard arrested the supertanker and ordered it into the port of Valdez , Alaska, in the United States. By service on the captain and arrest of the vessel, the United States commenced an action in the United States District Court in Seattle against the vessel, the captain, the owners of the supertanker Festiva and Liberia. The United States sought to recover the cost of the cleanup, compensation for damages to the environment of the United States Exclusive Economic Zone and of the high seas beyond the zone. This included damages to the living natural resources located in the seas and the seabed caused by the spill. Multi-Media Transportation Company, the owner of the Multi-Media Transportation Festoon joined the suit claiming monetary compensation for damages to the freighter caused by the collision. Claims were also brought in the District Court case against the supertanker and the owner of the vessel company by Canada and by the owners of Canadian property damaged by the spill. The Canadian fishermen and Canadian tourist companies, which suffered losses as a result of the spill, also brought claims.
Subsequent to the collision, the supertanker and its cargo were valued at US $10 million. The total liability insurance carried by the vessel was US $15 million. Persian Gulf Oil Company had no assets other than the vessel, although the company is a wholly-owned subsidiary of a large and wealthy US corporation. The United States damages claim is for US $30 million, the Multi-Media Transportation Company's claim is for US $5 million, and Canada's claim is for US $ 10 million in losses. The Canadian property owners' claimed US $ 15 million; and the fishermen and Canadian tourist companies claimed US $5 million in losses.
The owners of the supertanker and the Government of Liberia claim that the United States violated public international law when it arrested the captain, the vessel, and brought suit against the vessel and Liberia. They maintain that compensation is not owed for the damages. This position was put forward in a diplomatic note delivered to the United States State Department and filed in the pending United States District Court action. Canada and Liberia are parties to the 1982 United Nations Convention on the Law of the Sea, and they have made the relevant provisions of that Convention applicable to their flag vessels.
The United States was not a party to the Convention at the time of the incident.
PRELIMINARY CONSIDERATIONS
This realistic hypothetical problem poses a number of important non-environmental law questions. We consider these briefly before focusing on the liability and environmental issues involved. Preliminary questions that will come up are the following:
1 . Violation of international law. Did the United States' actions violate international law? Although the US was not a party to the UNCLOS at the time of the casualty, the provisions of U NCLOS, which the US will claim as applicable customary law rules, are essential to answering this question. Com pare UNCLOS Articles 97, which concerns arrest of the ship and disciplining the master and crew with respect to a ship on the high seas, with UNCLOS Articles 56 (the rights of the coastal state in the EEZ), 21l (pollution from vessels) 220 (enforcement by coastal states) and Article 292 (prompt release of master and crew).

2. Jurisdiction. Under the Constitution of the United States, the judicial power of United States (federal) courts extends to "all Cases of admiralty and maritime jurisdiction." (Art. III, sec. 2). Federal court jurisdiction over admiralty and maritime cases is codified in 28 USC sec. 1333. There is a separate provision for "special maritime and territorial jurisdiction of the United States" in criminal cases. 18 USC sec. 7.

3. Collision damages and limitation of liability. It appears that American law would apply to the collision itself. US maritime law imposes liability for collision damages on proof of negligence or fault, and damages are apportioned between the vessels involved in a collision on the basis of comparative negligence or fault. United States v. Reliable Transfer Co., 421 US 397 (1975). Would Multi-Media Transp. Co. be able to claim collision damages from the owners of the S.S. Persian Festiva? Limitation of liability is an important principle of shipping law. The United States law on limitation is the Limitation of Shipowners' Liability Act, 46 USC sees 30501 et seq, which allows a shipowner involved in a casualty to file a complaint for exoneration or limitation of liability within six months after receiving written notice of a claim in a marine casualty. If limitation is upheld, all claims for damages must be filed in a single court proceeding, and liability is limited to the value of the vessel after the casualty plus pending freight. 46 USC sec. 30505. Limitation may be "broke,” denied by the court, if the "privity or knowledge" –the fault---of the master or crew that caused the casualty, can be imputed to the shipowner. How would apportionment of damages and limitation of liability be handled in this case?

4. Cargo owners. The owners of cargo aboard both ships would have claims; these damages would be included as collision damages and liability ultimately would be apportioned according to comparative fault. See, e .g., Allied Chemical Corp. v. Hess Tankship Co., 661 F . 2d 1044, 1982 AMC 127 1 ( 5th Cir. 1981)


5. Likely claimants for damages resulting from the oil spill. Who are the likely claimants in this case? In addition to the parties involved in the collision, likely claimants will include: (1) the United States; (2) the State of Alaska; (3) Canada; and (4) private claimants from both the United States and Canada, including commercial and recreational fishermen, owners of contaminated boats and shore property, tackle and bait shops, shore motels and restaurants, marinas and boat rental shops, wholesale and retail seafood enterprises, and commercial shipping unable to transit the a rea contaminated by the spill.
6 . Likely defendants. Who are the likely defendants in this case?

APPLICABLE LAW
We analyze the applicability of two legal regimes with respect to this case. Some 105 states are parties to the international regime on civil liability for oil pollution damage, the CLC and Fund Conventions. The original CLC and Fund Conventions were replaced by a 1992 Protocol, which established a new international liability regime known as the 1992 CLC and Fund Conventions. An agreement in 2000 increased the limits of liability of the 1992 CLC and Fund Conventions, and in 2003, a Supplementary Fund was added, accepted at this writing by 27 states. In this problem case, we will work with the 1992 CLC and Fund Conventions as amended, leaving aside consideration of the 2003 Supplementary Fund.
Canada is a party to the 1992 CLC and Fund Conventions.
The United States is not a party to the 1992 CLC or Fund Conventions' regime, and has enacted its own national law on oil spill damages, the OPA 90.
The full CLC and Fund Conventions are reprinted in the Documentary Supplement. The following materials provide a comparison of the two liability regimes.
International Convention on Civil Liability for Oil Pollution Damage (C LC)
Adoption: 29 November 1969; Entry into force: 19 June 1975; replaced by 1992 Protocol:

Adoption: 27 November 1992; Entry into (force: 30 M ay 1996


The Civil Liability Convention was adopted to ensure that adequate compensation is available to persons who suffer oil pollution damage resulting from maritime casualties involving oil-carrying ships.
The Convention places the liability for such damage on the owner of the ship from which the polluting oil escaped or was discharged.
Subject to a number of specific exceptions, this liability is strict; it is the duty of the owner to prove in each case that any of the exceptions should in fact operate. However, except where the owner has been guilty of actual fault, they may limit liability in respect of any one incident.
The Convention requires ships covered by it to maintain insurance or other financial security in sums equivalent to the owner's total liability for one incident.
The Convention applies to all seagoing vessels actually carrying oil in bulk as cargo, but only ships carrying more than 2,000 tons of oil are required to maintain insurance in respect of oil pollution damage.
This does not apply to warships or other vessels owned or operated by a State and used for the time being for Government non-commercial service. The Convention, however, applies in respect of the liability and jurisdiction provisions, to ships owned by a State and used for commercial purposes. The only exception as regards such ships is that they are not required to carry insurance. Instead they must carry a certificate issued by the appropriate authority of the State of their registry stating that the ship's liability under the Convention is covered.

The Convention covers pollution damage resulting from spills of persistent oils suffered in the territory (including the territorial sea) of a State Party to the Convention. It is applicable to ships which actually carry oil in bulk as cargo, i.e. generally laden tankers. Spills from tankers in ballast or bunker spills from ships other than other than tankers are not covered, nor is it possible to recover costs when preventive measures are so successful that no actual spill occurs. The shipowner cannot limit liability if the incident occurred as a result of the owner's personal fault.


The Protocol of 1976, which entered into force in 1981, provided for the applicable unit of account used under the convention to be based on the Special Drawing Rights (SDR) as used by the International Monetary Fund (IMF), replacing the "Poincare franc", based on the "official" value of gold, as the applicable unit of account.
The Protocol of 1984 set increased limits of liability but was superseded by the 1992 Protocol.
The Protocol of 1992 changed the entry into force requirements by reducing from six to four the number of large tanker-owning countries that were needed for entry into force.
The compensation limits were set as follows:
• For a ship not exceeding 5, 000 gross tonnage, liability is limited to 3 million SDR

• For a ship 5,000 to 140,000 gross tonnage: liability is limited to 3 million SDR plus 420 SDR for each additional unit of tonnage

• For a ship over 140,000 gross tonnage: liability is limited to 59.7 million SDR.
The 1992 protocol also widened the scope of the Convention to cover pollution damage caused in the exclusive economic zone (EEZ) or equivalent area of a State Party. The Protocol covers pollution damage as before but environmental damage compensation is limited to costs incurred for reasonable measures to reinstate the contaminated environment. It also allows expenses incurred for preventive measures to be recovered even when no spill of oil occurs, provided there was g rave and imminent threat of pollution damage.
The Protocol also extended the Convention to cover spills from sea-going vessels constructed or adapted to carry oil in bulk as cargo so that it applies to both laden and unladen tankers, including spills of bunker oil from such ships.
Under the 1 992 Protocol, a shipowner cannot limit liability if it is proved that the pollution damage resulted from the shipowner's personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.
The 2000 Amendments

Adoption: 18 October 2000

Entry into force: 1 November 2003

The amendments raised the compensation limits by 50 percent compared to the limits set in the 1992 Protocol, as follows:


• For a ship not exceeding 5, 000 gross tonnage, liability is limited to 4.51 million SDR (US$5.78 million)

• For a ship 5,000 to 1 40,000 gross tonnage: liability is limited to 4.51 million SDR plus 631 SDR for each additional gross tonne over 5, 000

• For a ship over 140, 000 gross tonnage: liability is limited to 89.77 million SDR
Special Drawing Rights

The daily conversion rates for Special Drawing Rights (SDRs) can be found on the International Monetary Fund website at http/www.imf.org


International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage (FUND)
Adoption: 18 December 1971; Entry into force: 1 6 October 1 978; superseded by 1992 Protocol:

Adoption: 27 November 1992; Entry into force: 30 May 1996


Although the 1969 Civil Liability Convention provided a useful mechanism for ensuring the payment of compensation for oil pollution damage, it did not deal satisfactorily with all the legal, financial and other questions raised during the Conference adopting the CLC Convention. The 1969 Brussels Conference considered a compromise proposal to establish an international fund, to be subscribed to by the cargo interests, which would be available for the dual purpose of, on the one hand, relieving the shipowner of the burden by the requirements of the new convention and, on the other hand, providing additional compensation to the victims of pollution damage in cases where compensation under the 1969 Civil Liability Convention was either inadequate or unobtainable.
The Conference recommended that IMO should prepare such a schema and the International

Convention on the Establishment of an International Fund for Compensation for Oil Pollution

Damage was adopted at a Conference held in Brussels in 1971. It is supplementary to the Civil Liability Convention.
The purposes of the Fund Convention are:

To provide compensation for pollution damage to the extent that the protection afforded by the 1969 Civil Liability Convention is inadequate.

To give relief to shipowners in respect of the additional financial burden imposed on them by the 1969 Civil Liability Convention, such relief being subject to conditions designed to ensure compliance with safety at sea and other conventions.

To give effect to the related purposes set out in the Convention.


Under the first of its purposes, the Fund is under an obligation to pay compensation to States and persons who suffer pollution damage, if such persons are unable to obtain compensation from the owner of the ship from which the oil escaped or if the compensation due from such owner is not sufficient to cover the damage suffered.
Under the Fund Convention, victims of oil pollution damage may be compensated beyond the level of the shipowner's liability. However, the Fund's obligations are limited. Where, however, there is no shipowner liable or the shipowner liable is unable to meet their liability, the Fund will be required to pay the whole amount of compensation due. Under certain circumstances, the Fund's maximum liability may increase.
With the exception of a few cases, the Fund is obliged to pay compensation to the victims of oil pollution damage who are unable to obtain adequate or any compensation from the shipowner or his guarantor under the CLC Convention.

The Fund is not obliged to indemnify the owner if damage is caused by his wilful misconduct or if the accident was caused, even partially, because the ship did not comply with certain international conventions.


The Convention contains provisions on the procedure for claims rights and obligations and jurisdiction.
Contributions to the Fund should be made by all persons who receive oil by sea in Contracting States.
Protocols to the 1971 convention were adopted in 1976 and 1984, but were superseded by the 1992 Protocol.
The 1 971 convention ceased to be in force from 24 May 2002.
The Protocol of 1992

Adoption: 27 November 1992

Entry into force: 30 May 1996
As was the case with the 1 992 Protocol to the CLC Convention, the main purpose of the Protocol was to modify the entry into force requirements and increase compensation amounts.

The scope of coverage was extended in line with the 1992 CLC Protocol.


The 1992 Protocol established a separate, 1992 International Oil Pollution Compensation

(IOPC) Fund, known as the 1992 Fund, which is managed in London by a Secretariat.


Under the 1992 Protocol, the maximum amount of compensation payable from the Fund for a single incident, including the limit established under the 1992 CLC Protocol, is 135 million SDR.
However, if three States contributing to the Fund receive more than 600 million tonnes of oil per annum, the maximum amount is raised to 200 million SDR.
Protocol of 2000

Adoption: 27 September 2000

Entry into force: 27 June 2001
The purpose of the 2000 Protocol has been to terminate the 1971 Fund Convention.
According to the Protocol, the 1971 Fund Convention ceases to be in force on the date when the number of Contracting States falls below twenty-five.

This happened on 24 May 2002, because of the denunciations by States Parties to Fund 1971 in favor of their membership of Fund 1 992.


The 2003 Protocol (supplementary fund)

Adoption: 16 May 2003

Entry into force: 3 March 2005
The 2003 Protocol establishing an International Oil Pollution Compensation Supplementary

Fund was adopted by a diplomatic conference held at IMO Headquarters in London.


The aim of the established Fund is to supplement the compensation available under the 1992

Civil Liability and Fund Conventions with an additional, third tier of compensation. The Protocol is optional and participation is open to all States Parties to the 1992 Fund Convention.


The total amount of compensation payable for any one incident will be limited to a combined total of 750 million Special Drawing Rights (SDR) including the amount of compensation paid under the existing CLC/Fund Convention.
The supplementary fund will apply to damage in the territory, including the territorial sea, of a

Contracting State and in the exclusive economic zone of a Contracting State.


Annual contributions to the Fund will be made in respect of each Contracting State by any person who, in any calendar year, has received total quantities of oil exceeding 150, 000 tons. However, for the purposes of the Protocol, there is a minimum aggregate receipt of

1,000,000 tons of contributing oil in each Contracting State.


The Assembly of the Supplementary Fund will assess the level of contributions based on estimates of expenditure (including administrative costs and payments to be made under the Fund as a result of claims) and income (including surplus funds from previous years, annual contributions and any other income).
Amendments to the compensation limits established under the Protocol can be adopted by a tacit acceptance procedure, so that an amendment adopted in the Legal Committee of IMO by a two-thirds majority of Contracting States present and voting, can enter into force 24 months after its adoption.
The IOPC Funds and IMO

Although the Funds were established under Conventions adopted under the auspices of IMO, they are completely independent legal entities.


Unlike IMO, the IOPC Funds are not United Nations (UN) agencies and are not part of the UN system. They are intergovernmental organizations outside the UN, but follow procedures which are similar to those of the UN.

Only States can become Members of the IOPC Funds.


To become a member of the Fund, a State must accede to the 1 992 Civil Liability Convention and to the 1992 Fund Convention by depositing a formal instrument of accession with the Secretary-General of IMO. These Conventions should be incorporated into the national law of the State concerned.
See the IOPC Funds website at http://www.lopcfund.org/


Special drawing rights

The daily conversion rates for Special Drawing Rights (SDRs) can be found on the International Monetary Fund website at http://www. imf.org/


NOTES AND QUESTIONS
1. Under the CLC, liability for d a mages in cases of tanker oil spills is channeled to the registered owner of the vessel (CLC Art. III). The Fund Convention was concluded to complement the CLC by creating a compensation fund (created by levies on oil companies and member states) that imposes supplemental liability on oil cargo owners. Currently there are three separate funds each with different parties and each responsible to its assembly of parties. Liability under the CLC and the Fund regimes is strict but limited: the maximum available for any one incident is 750 million SDRs. (An SDR is a weighted average of a basket of national currencies including the US dollar, the euro, the British pound sterling, and the Japanese yen).
2. Under the CLC, the owner of any ship registered in a contracting state and carrying more than 2000 tons of oil in bulk as cargo must maintain insurance or other financial security covering liability up to the applicable limits of the CLC. A direct action for compensation may be maintained against the insurer. CLC Art. VII .
3. Damages recoverable under the CLC and the Fund Convention22 include:
• Property damage

• Costs of response and clean up both onshore and offshore

• Economic losses by fishers

• Certain economic losses of the tourism industry



• Cost of reinstatement of the affected environment
4. Claims for compensation must be filed within three years of the date the damage was suffered and may only be brought in the state in which the damage occurred.23 In the first instance, the national court will establish the limitation amount under the CLC (an amount ultimately paid by the liability insurer), and the claims will be paid out of this amount. If the claims exceed the limit under the CLC, the applicable fund or funds will become involved to pay remaining claims. Under the Fund Convention, an international organization, the International Oil Pollution Compensation Funds (IOPC Funds) is the agency that handles these claims. Since its establishment in 1978, as of this writing, the IOPC Funds have handled 145 oil pollution incidents in which payments from the funds have come into play.24 Claims against the IOPC Fund may be filed at the IOPC office in London, but the IOPC will commonly open one or more claims’ offices in the country where the damage occurred. The IOPC claim process is an out-of-court settlement process in which claims are processed according to criteria set out in the IOPC Claims Manual.25 If a claimant is turned down by the IOPC, he or she may file a claim against the IOPC in national court. In most cases the national court will uphold the IOPC determination, although there are several celebrated cases in which national courts awarded damages against the IOPC. For example, in the case of the oil spill by the tanker Patmos, a claim by the Italian state for environmental damages because of the "loss of enjoyment suffered by the community", was admitted Italian Court of Appeal26, and damages were awarded against the shipowner after being denied by the IOPC Funds.27
5. Note that the CLC and the Fund Convention apply only to spills from ships carrying oil as cargo. A separate international convention, the International Convention on Civil Liability for Bunker Oil Pollution Damage (2001) establishes strict liability for damages in cases of bunker oil spills from non-tankers, and requires ships over 1000 gross tons to maintain insurance or other financial security, but the ship involved may limit liability under the Convention on Limitation of Liability for Maritime Claims (1976) and its 1996 Protocol. Some 47 parties have adhered to the Bunker Oil Convention. Because shipowners may limit liability under the Limitation Convention (which does not apply to limit liability under the CLC or the Funds regime), in the event of a major spill of bunker oil, the damages will greatly exceed the shipowner's liability. See the Case of the Rena, High Court of New Zealand, CIV-2012-470-838, [2013] NZHC 500 (2013). Neither the CLC/Fund regime nor the Bunker Oil Convention apply to damages from spills of hazardous substances. The Hazardous and Noxious Substances Convention (HNS Convention) (1996) was concluded to establish an international compensation regime for spills of hazardous and noxious substances, but the HNS Convention is not yet in force. No international convention presently covers spills or emissions of oil from offshore oil and gas drilling activities, such as the accident that occurred in 2010 at the BP Macondo Well that polluted the Gulf of Mexico.
NOTE ON COLLATERAL ACTIONS TO OVERCOME LIMITS

UNDER THE INTERNATIONAL LIABILITY REGIMES
Suppose the damage from an oil spill is in excess of the limits applicable under the international liability regime; is there any way persons damaged by the oil pollution incident ca n bring collateral actions to recover further damages? This problem was raised in connection with the wreck of the oil tanker Erika off the west coast of France in 1999. The Erika was a Malta-registered tanker whose principal owner as a shareholder in a Maltese company was a n Italian national, Giuseppe Savarese, living in London. The classification society that approved the seaworthiness of the Erika was an Italian company, Registro Italiano Navale (RINA). The Erika foundered in international waters but sank within the French Exclusive Economic Zone (EEZ), spilling tons of oil into the sea causing the death of tens of thousands of seabirds and other marine life and polluting over 400 kilometers of pristine beaches and shorelands in Brittany and the Vendee region of France. The wreck of the Erika was found to have been caused by a combination of bad weather and corrosion of the vessel's structures. At the time of the spill the Erika was under time charter to Total, S.A., a French multinational oil company. The Erika was laden with some 30,884 metric tons of grade 2 fuel oil at the time of the casualty. The shipowner’s limit of liability under the CLC Convention based on the vessel's tonnage was 13 million euros. Thus the IOPC was called upon to pay excess damages. At the time of the spill the IOPC limit was 185 million euros so the damages to individuals and French local governments (communes) as well as for response, clean-up and environmental damages were greatly in excess of the limits provided under the IOPC.
Note that the CLC channels liability for an oil spill to the shipowner; the cargo owner as time or voyage charterer does not have liability under the international regime.
The spill of the Erika sparked three extremely interesting collateral actions:
1. The Italian classification society, RI NA, filed suit in the Tribunal of Syracuse, Sicily, against the French state and Total, asking for a declaratory judgment that it had no liability in the matter. On appeal the Italian Corte di Cassazione, the Italian Supreme Court, ruled that Italian courts did not have jurisdiction since 1992 CLC, Article IX(l) establishes exclusive jurisdiction in the courts in t h e state where the damage occurred. Corte di Cassazione No. 14769, Sezione Unite, Judgment of 17 October 2002.

2. The French commune (local government) of Mesquer filed an action for damages in a French court against Total, S. A., the cargo owner/charterer of the Erika, praying for damages on the theory that oil spilled into the sea becomes "waste" under the laws of France and the European Union, and that under these laws, Total, as the owner of the "waste", has the duty to bear the full cost of clean-up and damages. When the case reached the Supreme Court of France, the judges of that court, the Cour de Cassation, referred the question of whether spilled oil constitutes waste to the European Court of Justice (ECJ) to answer the question under European law. I n 2008, the ECJ, in Case C-188/07, Commune de Mesquer v. Total France, S.A. [2008} ECRI 4501, ruled that, indeed, hydrocarbons accidentally spilled into the sea constitute "waste" within the meaning of European Union Council Directive 75/442, and in accordance with the "polluter pays" principle, Total, as generator of the waste, is fully liable for damages if it has contributed by its conduct to the risk that pollution caused by the shipwreck will occur. Under this ruling Total, as the cargo owner, may have virtually unlimited liability for further damages.

3. French prosecutors filed criminal actions in a Paris court against several defendants in connection with the Erika spill, and in 2008, the trial court rendered guilty verdicts against Total, Giuseppe Savarese, the principle shareholder of the shipowning company, Antonio Pollara, the ship's master, and RINA, the classification society. Proces Erika, Jugement du Tribunal Correctional de Paris (Gran de Instance), 16 Jan. 2008. The court levied a criminal fine of 375 million euros against Total . In addition, under French law, as is typical of civil law countries, victims of crimes may join the criminal proceedings and recover damages [see the Code Penal de France, Arts. 85 and 86]. Some 200 French communes and French environmental organizations joined the criminal action, and the court declared that under French law the four convicted defendants were liable for civil compensatory damages in the amount of 200.6 million euros. The two amounts levied---the 375 million euro criminal fin e and the 200.6 million euro civil damages-were in addition to a mounts voluntarily paid already by Total and RINA, 171 million euros and 30 million euros, respectively. The trial court's judgment was upheld by the French Court of Appeal in 2010 [Affaire Erika, Judgment of the Cour d'Appe/ de Paris, 30 March 2010], and was appealed to the Supreme Court, the Cour de Cassation. Most observers expected the Cour de Cassation to nullify the judgment, especially after the Court's Advocate General, which Cour de Cassation follows most of the time, ruled in an II Avis" on May 24, 2012, that French courts had no criminal or civil jurisdiction in the matter. As to the criminal liability, the Advocate General held that French criminal jurisdiction under the Code Penal, Art. 113-2 is territorial and that this included only French territory and the French territorial sea, not the French Exclusive Economic Zone. He further ruled that in the area of the EEZ the flag state, Malta, had exclusive criminal jurisdiction. As to the civil liability of the defendants, the Advocate General held that the CLC and Fund Conventions as accepted by France provided exclusive jurisdiction and that collateral civil actions for damages were excluded under French law. Nonetheless, on September 25, 2012, the Cour de Cassation handed down a 330 page opinion

fully upholding the criminal convictions and the criminal and civil liability rendered by the trial court. The Cour de Cassation ruled that the court had jurisdiction under French criminal law over pollution incidents occurring in the French EEZ based on the provisions of UNCLOS (see Articles 27, 28, 56, 97, 2 1 1, and 220). The court up held civil jurisdiction for damages under a theory of "prejudice ecologique" which could be the basis for civil damages rendered to victims of crimes resulting from an oil spill incident. Cour de Cassation, Chambre criminelle, Arret no. 3439 of 25 September 2012, available at http://www.courdecassation.fr/IMG///Crim arret3439 2012092S.pdf, accessed 23 November 2012.


This case may soon enter a new phase: the lawyers for Total have announced that they intend to seek review of the judgment of the Cour de Cassation in the European Court of Human Rights.
In the case of the Prestige, a tanker which sank some 30 kilometers off Cape Finisterre, Galicia, Spain in 2002, fouling much of the Spanish coast and wreaking havoc with the fishing industry, the Spanish government in 2003, filed suit against the US classification society, Houston-based American Bureau of Shipping (ABS), that had approved the seaworthiness of the Prestige and had certified the vessel as fit to carry fuel cargos.
The United States District Court for the Southern District of New York granted summary judgment in favor of ABS on the ground that under the CLC, Spain was the exclusive forum for the assertion of pollution claims concerning the spill. Reina de Espana v. American Bureau of Shipping, 528 F. Supp. 455 (S.D.N.Y. 2008). After this judgment was reversed by the Court of Appeals on the ground that an international treaty to which the US is not a party cannot divest the US federal courts of subject matter jurisdiction [Summary Order of the United States Court of Appeals of the Second Circuit, 12 June 2009], the District Court again granted summary judgment in favor of ABS on the substantive ground that a classification society's services; which involve conducting an inspection of a vessel for the owner, do not constitute a "global guarantee" to third parties concerning a vessel's seaworthiness. Reina de Espana v. American Bureau of Shipping, 729 F. Supp. 2d 635 (S.D.N. Y. 2010). The Court of Appeals affirmed this decision but on different grounds. The Court of Appeals refused to decide whether a classification society may be liable in tort to third parties for negligent or for reckless conduct in connection with the classification of vessels. Instead, the Court, after a choice of laws analysis holding that the question of liability was governed by the maritime law of the United States, ruled that Spain had not introduced sufficient evidence to prove its allegation that ABS had acted recklessly, and, consequently, a jury could not conclude that the failure of ABS had led to the damages incurred by the spill of oil from the Prestige. Reina de Espana v. American Bureau of Shipping, 691 F.3d 461 (2d Cir. 2012). Did the lawyers for Spain make a tactical error in not alleging that ABS was liable for simple negligence?
UNITED STATES1POLLUTION ACT OF 1990

(OPA 90)

33 United States Code sees. 2701 et seq.

[OPA 90 imposes strict liability for damages resulting from an oil spill on "responsible parties" who are defined as, for vessels, the owner, operator or demise charterer (and the owner of the oil for single hull tankers); for offshore facilities, the lessee or permittee and the holder of the right of use; for onshore facilities, the owner and the operator; for pipelines, the owner and operator; and for deep water ports, the licensee. 33 USC sec 2701 (32). Oil spill liability is triggered by any discharge of oil that produces” sheen" on the water; a sheen is an iridescent appearance on the surface of the water. 40 CFR sec. 110.

OPA 90 also establishes an Oil Spill Liability Trust Fund, which is available to pay claims up to $ 1 billion per incident if a claim is not paid after first being presented to a responsible party or if the responsible party is entitled to a defense or if the liability limit under the statute has been reached. 33 USC sec. 2708. The principal liability provisions of OPA 90 are as follows.]
§ 2702. Elements of liability

(a) In general. Notwithstanding any other provision or rule of law, and subject to the provisions of this Act. each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) that result from such incident


(b) Covered removal costs and damages.

(I) Removal costs. The removal costs referred to in subsection (a) are--

(A) all removal costs incurred by the United States, a State, or an Indian tribe under subsection (c),

(d), (e), or ( I) of section 311 of the Federal Water Pollution Control Act (33 U.S. C. 1321), as amended by this Act, under the Intervention on the High Seas Act ( 33 U.S. C. 1-171 et seq.), or under State law; and

(B) any removal costs incurred by any person for acts taken by the person which are consistent with the National Contingency Plan.

(2) Damages. The damages referred to in subsection (a) are the following:

(A) Natural resources. Damages for injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an Indian tribe trustee, or a foreign trustee.

(B) Real or personal property. Damages for injury to, or economic losses resulting from destruction of real or personal property, which shall be recoverable by a claimant who owns or leases that property.


(C) Subsistence use. Damages for loss of subsistence use of natural resources, which shall be recoverable by any claimant who so uses natural resources which have been injured, destroyed, or lost. without regard to the ownership or management of the resources.
(D) Revenues. Damages equal to the net loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by the Government of the United States, a State, or a political subdivision thereof.
(E) Profits and earning capacity. Damages equal to the loss of pro tits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources. which shall be recoverable by any claimant
( F) Public services. Damages for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil, which shall be recoverable by a State, or a political subdivision of a State.

(c) Excluded discharges. This title does not apply to any discharge-

(1) permitted by a permit issued under Federal, State, or local law;

(2) from a public vessel; or

(3) from an onshore facility which is subject to the Trans-Alaska Pipeline Authorization Act (-43 U.S. C.
(d) Liability of third parties.

(I) In general.

(A) Third party treated as responsible party. Except as provided in subparagraph (B), in any case in which a responsible party establishes that a discharge or threat of a discharge and the resulting removal costs and damages were caused solely by an act or omission of one or more third parties described in section 1003(a)(3) [33 USC § 2703(a)(3)) (or solely by such an act or omission in combination with an act of God or an act of war), the third party or parties shall be treated as the responsible party or parties for purposes of determining liability under this title.

(B) Subrogation of responsible party. If the responsible party alleges that the discharge or threat of a discharge was caused solely by an act or omission of a third party, the responsible party--

(i) in accordance with section 1013 [33 USC § 2713] shall pay removal costs and damages to any claimant; and

(ii) shall be entitled by subrogation to all rights of the United States Government and the claimant to recover removal costs or damages from the third party or the Fund paid under this subsection.

(2) Limitation applied.

(A) Owner or operator of vessel or facility. If the act or omission of a third party that causes an incident occurs in connection with a vessel or facility owned or operated by the third party, the liability of the third party shall be subject to the limits provided in section I004

[33 USC § 2704] as applied with respect to the vessel or facility.

(B) Other cases. In any other case, the liability of a third party or parties shall not exceed the limitation which would have been applicable to the responsible party of the vessel or facility from which the discharge actually occurred if the responsible party were liable.


§ 2703. Defenses to liability

(a) Complete defenses. A responsible party is not liable for removal costs or damages under section I 002 [33 USC § 270] if the responsible party establishes, by a preponderance of the evidence, that the discharge or substantial threat of a discharge of oil and the resulting damages or removal costs were caused solely by--

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party, other than an employee or agent of the responsible party or a third party whose act or omission occurs in connection with any contractual relationship with the responsible party (except where the sole contractual arrangement arises in connection with carriage by a common carrier by rail), if the responsible party establishes, by a preponderance of the evidence, that the responsible

party—
(A) exercised due care with respect to the oil concerned, taking into consideration the characteristics of the oil and in light of all relevant facts and circumstances; and

(B) took precautions against foreseeable acts or omissions of any such third party and the foreseeable consequences of those acts or omissions; or

(4) any combination of paragraphs (1), (2), and (3).

(b) Defenses as to particular claimants. A responsible party is not liable under section I 002 [33 USC §
2701] to a claimant, to the extent that the incident is caused by the gross negligence or willful misconduct of the claimant.
(c) Limitation on complete defense. Subsection (a) does not apply with respect to a responsible party who fails or refuses—
(1) to report the incident as required by law if the responsible party knows or has reason to know of the incident;

(2) to provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities; or

(3) without sufficient cause, to comply with an order issued under subsection (c) or (e) of section 311 of the Federal Water Pollution Control Act (33 US. C. 132 1), as amended by this Act, or the Intervention on the High Seas Act ( 33 U S. C. 1 -1 71 et seq.).
§ 2704. Limits on liability

(a) General rule. Except as otherwise provided in this section, the total of the liability of a responsible party under section 1 002 [33 USC § 2 702] and any removal costs incurred by, or on behalf of the responsible party, with respect to each incident shall not exceed-

( 1 ) for a tank vessel, the greater of--

(A) $ 1 ,200 per gross ton; or

(B) (i) in the case of a vessel greater than 3,000 gross tons, $ I 0,000,000; or

(ii) in the case of a vessel of 3,000 gross tons or less, $ 2,000,000;

(2) for any other vessel, $ 600 per gross ton or $ 500,000. whichever is greater;

(3) for an offshore facility except a deep water port, the total of all removal costs plus $ 75,000,000; and

(4) for any onshore facility and a deep water port, $ 3 50,000,000.
(c) Exceptions.

(I) Acts of responsible party. Subsection (a) does not apply if the incident was proximately caused by--

(A) gross negligence or willful misconduct of, or

(B) the violation of an applicable Federal safety, construction, or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.


§ 2707. Recovery by foreign claimants

(a) Required showing by foreign claimants.

(1) In general. In addition to satisfying the other requirements of this Act, to recover removal costs or damages resulting from an incident a foreign claimant shall demonstrate that--

(A)the claimant has not been otherwise compensated for the removal costs or damages: and

(B) recovery is authorized by a treaty or executive agreement between the United States and the claimant's country, or the Secretary of State, in consultation with the Attorney General and other appropriate officials, has certified that the claimant's country provides a comparable remedy for United States claimants.

(2) Exceptions. Paragraph ( l )(B) shall not apply with respect to recovery by a resident of Canada in the case of an incident described in subsection (b)(4).


(b) Discharges in foreign countries. A foreign claimant may make a claim tor removal costs and damages resulting from a discharge, or substantial threat of a discharge, of oil in or on the territorial sea, internal waters, or adjacent shoreline of a foreign country, only if the discharge is from-

(1) an Outer Continental Shelf facility or a deepwater port;

(2) a vessel in the navigable waters;

(3) a vessel carrying oil as cargo between 2 places in the United States; or

(4) a tanker that received the oil at the terminal of the pipeline constructed under the Trans-Alaska Pipeline Authorization Act(43 U S. C. 165 1 et seq.), for transportation to a place in the United States, and the discharge or threat occurs prior to delivery of the oil to that place.
(c) Foreign claimant defined. In this section, the term "foreign claimant" means-

(1) a person residing in a foreign country;

(2) the government of a foreign country; and

(3) an agency or political subdivision of a foreign country.

§ 2713. Claims procedure

(a) Presentation. Except as provided in subsection (b), all claims for removal costs or damages shall be presented first to the responsible party or guarantor of the source designated under section 1014(a) [33 USC § 2714(a)].


(b) Presentation to Fund.

(1) In general. Claims tor removal costs or damages may be presented t1rst to the Fund-

(A) if the President has advertised or otherwise notified claimants in accordance with section 10l4(c) [33 USC § 2714(c)J;

(B) by a responsible party who may assert a claim under section 1008 [33 USC § 2708]:

(C) by the Governor of a State for removal costs incurred by that State: or

(D) by a United States claimant in a case where a foreign offshore unit has discharged oil causing damage for which the Fund is liable under section 1012(a) [33 USC § 2712(a)].

(2) Limitation on presenting claim. No claim of a person against the Fund may be approved or certified during the pendency of an action by the person in court to recover costs which are the subject of the claim.
(c) Election. If a claim is presented in accordance with subsection (a) and-

(1) each person to whom the claim is presented denies all liability for the claim, or

(2) the claim is not settled by any person by payment within 90 days after the date upon which (A) the claim was presented, or (B) advertising was begun pursuant to section 1014(b) [33 USC § 2714(b)], whichever is later, the claimant may elect to commence an action in court against the responsible party or guarantor or to present the claim to the Fund.
(d) Uncompensated damages. If a claim is presented in accordance with this section, including a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled, and full and adequate compensation is unavailable, a claim for the uncompensated damages and removal costs may be presented to the Fund.
(e) Procedure for claims against Fund. The President shall promulgate, and may from time to time amend, regulations for the presentation, filing, processing, settlement, and adjudication of claims under this Act against the Fund.
§ 27 1 8. Relationship to other law

(a) Preservation of State authorities; Solid Waste Disposal Act. Nothing in this Act or the Act of March 3, 1851 shall--


(1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to-

(A) the discharge of oil or other pollution by oil within such State; or

(B) any removal activities in connection with such a discharge; or

(2) affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act(48 U.S.C. 690 1 et seq.) or State law, including common law.


(b) Preservation of State funds. Nothing in this Act or in section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509) shall in any way affect, or be construed to affect, the authority of any State-

(1) to establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or

(2) to require any person to contribute to such a fund.
(c) Additional requirements and liabilities; penalties. Nothing in this Act, the Act of March 3, 1 851 (46 U.S.C. 183 et seq.), or section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof—
(1) to impose additional liability or additional requirements; or

(2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of a discharge, of oil.


§ 2751. Savings provisions

(a) Cross-references. A reference to a law replaced by this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision of this Act.


(e) Admiralty and maritime law. Except as otherwise provided in this Act, this Act does not affect-

(1) admiralty and maritime law; or

(2) the jurisdiction of the district courts of the United States with respect to civil actions under admiralty and maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
IN RE OIL SPILL BY THE OIL RIG DEEPWATE R HORIZON
United States District Court, 2011

Eastern District of Louisiana

808 F. Supp. 2d 943
[This case is the first published decision by the Court handling the multi-district litigation arising from the explosion, fire, and subsequent release of an estimated 4.9 million barrels (205 .8 million gallons) of oil in the Gulf of Mexico in 2010].
ORDER AND REASONS

[As to Motions to Dismiss the B1 master Complaint]


BARBIER, District Judge.
This multi-district litigation ("MDL") consists of hundreds of consolidated cases, with thousands of claimants, pending before this Court. These cases arise from the April 20, 2010 explosion, tire, and sinking of the DEEPWATE R HORIZON mobile offshore drilling unit ("MODU"), which resulted in the release of millions of gallons of oil into the Gulf of Mexico before it was finally capped approximately three months later. The consolidated cases include claims for the death of eleven individuals, numerous claims for personal injury, and various claims for environmental and economic damages.
In order to efficiently manage this complex MDL, the Court consolidated and organized the various types of claims into several "pleading bundles." The "B1" pleading bundle includes all claims for private or "non-governmental economic loss and property damages." There are in excess of 100,000 individual claims encompassed within the B1 bundle.

PROCEDURAL HISTORY
In the B1 Master Complaint, the [plaintiffs’ steering committee] identifies a number of categories of claimants seeking various types of economic damages, including Commercial Fishermen Plaintiff s, Processing and Distributing Plaintiffs, Recreational Business Plaintiffs, Commercial Business Plaintiffs, Recreation Plaintiffs, Plant and Dock Worker Plaintiffs, Vessel of Opportunity ("VoO") Plaintiff's, Real Property Plaintiffs, Real Property/Tourism Plaintiffs, Banking/Retail Business Plaintiff s, Subsistence Plaintiffs, Moratorium Plaintiffs, and Dealer Claimants.
Plaintiffs named the following as Defendants in their B1 Master Complaint: B1Exploration & Production Inc., B P America Production Company and BP p.l.c. (collectively "BP"); Transocean Ltd., Transocean Offshore, Transocean Deepwater, Transocean Holdings (collectively "Transocean"); Halliburton; M-I; Cameron; Weatherford ; Anadarko, Anadarko E & P (collectively "Anadarko"); MOEX Offshore, MOEX USA (collectively "MOEX");and MOECO. All of the Defendants, with the exception of MOECO, have filed Motions to Dismiss. Additionally, Dril-Quip, which was not named as a Defendant in the Master Complaint, has filed a Motion to Dismiss (Rec. Doc. 2 107) because of the procedural effect of the [Federal] Rule 14(c) tender in Transocean's Third-Party Complaint.
Plaintiffs allege claims under general maritime law, the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. § 2701 et seq., and various state laws. Under general maritime law, Plaintiffs allege claims for negligence, gross negligence, and strict liability for manufacturing and/or design defect. Under various state laws, Plaintiffs allege claims for nuisance, trespass, and fraudulent concealment, and they also allege a claim for strict liability under the Florida Pollutant Discharge Prevention and Control Act, Fla. Stat. § 376.011 et seq. Additionally, Plaintiffs seek punitive damages under all claims and request declaratory relief regarding any settlement provisions that purport to affect the calculation of punitive damages.



Download 0.82 Mb.

Share with your friends:
1   ...   6   7   8   9   10   11   12   13   ...   18




The database is protected by copyright ©ininet.org 2024
send message

    Main page