Maritime Pollution Liability and Policy

Name: Maritime Pollution Liability and Policy | China, Europe and the US
Brand: Kluwer Law International
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China, Europe and the US

Michael G. Faure Han Lixin(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 30. September 2010

496 Seiten

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Beschreibung

Too many oil spills have given dramatic evidence of the inadequacy of international conventions designed to prevent and/or compensate for maritime pollution damage. In the light of the ecological disaster caused by such incidents and the huge economic consequences for the population of the zones affected, various concerned parties around the world are deeply committed to the goals of optimizing legal mechanisms to prevent and deter maritime pollution incidents as well as providing better and more efficient compensation of victims. One of the more notable conferences dedicated to this purpose was sponsored by the Institute of International Maritime Law of Dalian Maritime University in conjunction with the Maastricht European Institute for Transnational Legal Research in June 2009. This important book is a record of that conference.

Twenty-nine authors - academics, lawyers and officials of relevant agencies, from China, Europe and the United States - here offer thorough analysis of the overt and underlying legal issues with which this difficult matter is fraught, including the following:

imposition of financial caps;

competence of authorities;

criminal sanctions for non-compliance;

parties to criminal liability;

territorial scope of state police power;

relevance and application of the public trust doctrine;

carriage of dangerous substances by sea;

fair treatment of seafarers;

role of the 'protection and indemnity clubs';

monitoring and inspections of ships as an aspect of criminal law; and

insurance coverage for fines.

The approach throughout is both legal multi-disciplinary and comparative. The relevant international conventions are examined (particularly the 'Bunker Convention' of 2008), with particular attention to their implementation in China and Europe, as well as the independent US regime. In addition, detailed empirical data from well-known case studies provide important insights into the working of international and national prevention and compensation mechanisms.

Through a critical review of the current structure of prevention and compensation for oil pollution damage, this book opens the door to a further restructuring of conventions (or national legislation), clarifying the dimensions of the crucial discussion about of how an optimal enforcement of oil pollution legislation can be achieved and who should bear the costs. It will be hugely valuable to policymakers and practitioners dealing with this most daunting and urgent of international legal problems.

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Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
List of Contributors
Summary of Contents
Table of Contents
List of Abbreviations
Chapter 1 Introduction
1 ORIGIN OF THIS BOOK
2 DEFINING THE PROBLEM
2.1 SOCIAL RELEVANCE
2.2 LEGAL RELEVANCE
2.3 COMPARATIVE RESEARCH
2.4 RECENT EVOLUTIONS
3 METHODOLOGY
3.1 FOCUS
3.2 LEGAL MULTIDISCIPLINARY
3.3 THE COMPARATIVE APPROACH
3.4 EMPIRICAL RESEARCH
4 TOPICS
4.1 IMPLEMENTATION OF CONVENTIONS IN EUROPE AND CHINA
4.2 CRITICAL ANALYSIS OF THE CURRENT STRUCTURES
4.3 ALTERNATIVE ROUTES OF COMPENSATION
4.4 PREVENTION AND ENFORCEMENT
5 FRAMEWORK OF THE PROJECT
6 STRUCTURE OF THE PRESENTATION
7 CONTRIBUTORS
8 ACKNOWLEDGEMENTS
Reference
Part I General Issues in Prevention and Compensation of Marine Pollution Damage
Chapter 2 Prevention and Compensation for Marine Pollution
1 INTRODUCTION
2 LEGAL HISTORY
3 PREVENTION
3.1 GENERAL OVERVIEW OF MARPOL
3.2 OIL
3.2.1 Discharge Standards in MARPOL Annex I
3.2.2 Construction, Design and Equipment Standards
3.3 HAZARDOUS AND NOXIOUS SUBSTANCES
3.3.1 Definition of HNS
3.3.2 Annex II
3.3.2 Annex III
3.4 FUEL
3.5 COMPARATIVE ANALYSIS
4 CIVIL LIABILITY
4.1 OIL
4.2 HNS CONVENTION
4.3 BUNKER CONVENTION
4.4 COMPARATIVE ANALYSIS
5 A CRITICAL ANALYSIS
5.1 REGULATION VERSUS CIVIL LIABILITY
5.2 REGULATION
5.3 CIVIL LIABILITY
5.4 EMPIRICS
6 CONCLUDING REMARKS
References
Chapter 3 Marine Pollution and the Right of Entry in Maritime Ports for Ships in Distress
1 INTRODUCTION
2 MARITIME PORT CONCEPT
3 THE RIGHT OF ACCESS
4 A RIGHT OF ACCESS TO MARITIME PORTS IS GENERALLY BASED ON CONVENTIONAL AGREEMENT (OR NATIONAL LEGISLATION OR REGULATIONS)
5 RIGHT OF ACCESS FOR SHIPS IN DISTRESS
5.1 MULTILATERAL TREATIES
5.2 CUSTOMARY INTERNATIONAL LAW
5.3 NO GENERAL RIGHT OF ACCESS
6 DISTRESS, FORCE MAJEURE AND IMMUNITY
7 CONCLUSION
References
Chapter 4 Lost Ecosystem Goods and Services as a Measure of Marine Damages
1 INTRODUCTION
2 LIABILITY FOR DAMAGES TO PUBLIC TRUST NATURAL RESOURCES
3 CURRENT DAMAGE ASSESSMENT PRACTICES
4 ECOSYSTEM SERVICES ASSESSMENT
4.1 ECOLOGICAL ENDPOINTS
4.2 CAUSALITY AND BIOPHYSICAL PRODUCTION FUNCTIONS
4.3 FROM PHYSICAL TO ECONOMIC DAMAGES
4.4 ECONOMIC DAMAGE INDICATORS
5 CONCLUSION
References
Chapter 5 Liability and Compensation for Environmental Damage Caused by Ship-Source Oil Pollution: Actionability of Claims
1 INTRODUCTION
2 ENVIRONMENTAL DAMAGE UNDER THE CONVENTION REGIME
3 LOCUS STANDI
3.1 PROPERTY RIGHTS OR PROPRIETARY INTEREST
3.2 PUBLIC TRUST DOCTRINE
3.2.1 Principles of Trust Law
3.2.2 Ancient Origins of the Doctrine
3.2.3 Roots of the Doctrine in English Law
3.2.4 Application of Public Trust Doctrine in Various States
3.2.5 Application of the Public Trust Doctrine in the United States
3.3 PARENS PATRIAE
3.4 STATUTES AND CASE LAW ON PUBLIC TRUST AND PARENS PATRIAE
3.5 LOCUS STANDI OF PRIVATE ENTITIES
4 SUMMARY AND CONCLUSION
References
Chapter 6 Funds' Admissibility Criteria for Pure Economic Loss Claims versus British Judicial Stand: Complementary or Contradictory?
1 INTRODUCTION
2 FUNDS' APPROACH TO PURE ECONOMIC LOSS
3 BRITISH COURTS' APPROACH TO PURE ECONOMIC LOSS
4 RELATIONSHIP BETWEEN THE FUNDS' ADMISSIBILITY CRITERIA AND THE STAND TAKEN BY BRITISH COURTS
5 CONCLUSION
Chapter 7 Is the Polluter Pays Principle Really Fundamental? An Economic Explanation of the Relative Unimportance of Environmental Liability and Taxes in US Environmental Law
1 THE POLLUTER PAYS PRINCIPLE AND THE PARADOXICAL INSIGNIFICANCE OF ENVIRONMENTAL TAXES AND LIABILITY
2 ENVIRONMENTAL TAXES AND LIABILITY IN THE UNITED STATES
3 LIMITS TO IMPLEMENTING THE POLLUTER PAYS PRINCIPLE WITH EFFLUENT TAXES AND EX POST LIABILITY: ECONOMIC LESSONS FROM THE AMERICAN EXPERIENCE
3.1 ENVIRONMENTAL TAXES
3.2 EX POST ENVIRONMENTAL LIABILITY
4 CONCLUSION
References
Part II The Bunker Convention
Chapter 8 The Era after the Bunker Convention: Is the Gap in China's Regime for Compensating Victims of Vessel-Source Oil Spills Filled?
1 PREFACE
2 GENERAL SITUATION OF CHINA'S REGIME BEFORE THE BUNKER CONVENTION
2.1 POLLUTION DAMAGES GOVERNED BY CLC 92
2.2 POLLUTION DAMAGES GOVERNED BY DOMESTIC LAWS
2.3 THE GAP IN THE CHINESE REGIME BEFORE THE BUNKER CONVENTION
2.3.1 CLC 92 Oil Pollution Situation
2.3.2 Non-CLC 92 Oil Pollution Situation
2.3.2.1 No Domestic Compensation Fund
2.3.2.2 No Compulsory Insurance Rule
2.3.2.3 No Freestanding Liability Limitation Rule
2.3.2.4 Unlimited Liability for Oil Pollution Caused by Seagoing Ships of Less Than 20 Tonnes Gross Tonnage
2.3.2.5 Unlimited Liability for Oil Pollution Caused by Inland-Water Ships
3 THE GAPS IN THE INTERNATIONAL REGIME FILLED BY BUNKER CONVENTION
4 SITUATION OF THE CHINESE REGIME AFTER THE BUNKER CONVENTION
4.1 SPILLS OF CLC 92 OIL FROM CLC 92 SHIPS
4.2 SPILLS OF BUNKER OIL FROM NON-CLC 92 SHIPS
4.3 SPILLS OF PERSISTENT OIL AS CARGO FROM NON-CLC 92 SHIPS (COASTWISE SHIPS)
4.4 SPILLS OF NON-CLC 92 OIL FROM CLC 92 SHIPS
4.5 OIL SPILLS FROM SHIPS OF LESS THAN 20 TONNES GROSS TONNAGE
4.6 OIL SPILLS FROM INLAND-WATER SHIPS (CARGO/BUNKER)
5 THE GAP TO BE FILLED BY THE VESSEL POLLUTION PREVENTION REGULATIONS AND THE CHINA FUND REGULATIONS
5.1 LIABILITY LIMITATION RULE FOR NON-CLC 92 POLLUTION DAMAGES AND NON-BUNKER POLLUTION DAMAGES WILL BE ESTABLISHED
5.2 COMPULSORY INSURANCE RULE FOR NON-CLC 92 VESSELS EXCEPT THOSE OF LESS THAN 1,000 TONNES GROSS TONNAGE AND CARRYING NON-OIL CARGO WILL BE ESTABLISHED
5.3 A COPC FUND WILL BE ESTABLISHED
6 CONCLUSION
Reference
Chapter 9 Discussion on Limitation of Liability and Compulsory Insurance of Compensation for Bunker Oil Pollution Damage from Ships in China
1 INTRODUCTION
2 SHIPOWNERS' LIMITATION OF LIABILITY STATED IN DOMESTIC LAWS
2.1 WHEN CLC 1992 WILL APPLY
2.1.1 Ships under the Scope of the Conventions
2.1.2 Oil under the Scope of the Conventions
2.2 THE APPLICATION OF DOMESTIC LAW: CMC AND THE PROVISIONS PROMULGATED BY MINISTRY OF TRANSPORT OF THE PRC
2.3 THE AMOUNT OF THE LIMITATION OF LIABILITY IN DOMESTIC LAWS
2.3.1 Relevant Provisions in Chapter 11 of the CMC
2.3.2 The Provisions Promulgated by the Pre-Ministry of Communication
3 THE LIMITATION REGULATED IN THE 1976 LLMC AND ITS PROTOCOLS
3.1 SHIPS UNDER THE SCOPE OF THE CONVENTION
3.2 THE AMOUNT FOR LIMITATION OF LIABILITY
4 THE ESTABLISHMENT OF A LIMITATION FUND FOR COMPENSATION FOR BUNKER OIL POLLUTION DAMAGE
5 COMPULSORY INSURANCE OR FINANCIAL SECURITY
5.1 SHIPS APPLIED
5.2 THE AMOUNT OF COMPULSORY INSURANCE OR FINANCIAL SECURITY
5.3 THE NAME LIST OF THE INSURERS
6 CONCLUSION
Reference
Part III Criminal Law
Chapter 10 Criminal Liability for Oil Pollution Damage: An Economic Analysis
1 INTRODUCTION
2 WHY CRIMINAL LAW FOR OIL POLLUTION DAMAGE?
2.1 ARGUMENTS IN FAVOUR OF PUBLIC ENFORCEMENT
2.2 LOW PROBABILITY OF DETECTION
2.3 ADMINISTRATIVE OR CRIMINAL LAW?
2.4 ALTERNATIVES?
2.5 CRIMINAL LAW FOR MARINE POLLUTION?
3 OPTIMAL SANCTIONS FOR MARINE POLLUTION
3.1 FINES OR IMPRISONMENT?
3.2 DETERMINING THE OPTIMAL SANCTION
3.3 NON-MONETARY SANCTIONS
3.3.1 Imprisonment or Restoration?
3.3.2 Publicity
3.3.3 Forfeiture of Illegal Gains
3.3.4 Confiscation
4 CORPORATE CRIMINAL LIABILITY FOR OIL POLLUTION?
4.1 THE ECONOMIC CASE FOR CORPORATE CRIMINAL LIABILITY
4.2 . . . AND ON INDIVIDUALS?
4.3 LIMITS OF CORPORATE CRIMINAL LIABILITY
5 CRIMINAL LIABILITY FOR OIL POLLUTION DAMAGE: LEGAL PRACTICE
5.1 INSURANCE OF FINES
5.2 SHIP SOURCE POLLUTION IN THE EU
5.3 ERIKA
5.4 EMPIRICAL EVIDENCE
6 CONCLUSION
References
Chapter 11 Criminal Liability and Vessel-Source Pollution in the European Union and the United States: Inspiration for the Prevention of Vessel-Source Pollution in China?
1 INTRODUCTION
2 PRACTICE OF THE EUROPEAN UNION
2.1 BACKGROUND
2.2 RELEVANT CASES
2.2.1 Operational Discharges
2.2.2 Accidental Discharges
2.3 THE EUROPEAN COURT OF JUSTICE CASE C-308/06 CONCERNING THE VALIDITY OF EU DIRECTIVE 2005/35/EC ON SHIP SOURCE POLLUTION
2.4 CONCLUSIONS
3 PRACTICE OF THE UNITED STATES
3.1 BACKGROUND
3.2 DOMESTIC LEGAL REGIME
3.3 RELEVANT CASES
3.3.1 Operational Discharges
3.3.2 Accidental Discharges
3.4 CONCLUSIONS
4 WHAT ABOUT CHINA?
4.1 BACKGROUND
4.2 DOMESTIC LEGAL REGIME
4.3 CHALLENGES
5 CONCLUSION
References
Chapter 12 Criminal Liability of Master and Crew in Oil Pollution Cases: A Possible Conflict between the Law of the Sea Convention (UNCLOS), MARPOL and the European Directive 2005/35/EC
1 INTRODUCTION
2 GENERAL FEATURES OF CIVIL LIABILITY IN OIL POLLUTION CASES
3 SOME OF THE SPECIAL FEATURES OF THE MARPOL TREATIES 73/78
4 RATIFICATIONS OF MARPOL 73/78
5 THE INTRODUCTION OF THE EU DIRECTIVE 2005/35
6 BUT WHERE IS THE CONFLICT BETWEEN UNCLOS/MARPOL AND THE EU DIRECTIVE 2005/35?
7 POSSIBLE VIOLATIONS WITH THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982
8 THE ATTACK ON THE EUROPEAN DIRECTIVE 2005
9 THE DECISION OF THE EUROPEAN COURT ON THE LEGALITY OF EUROPEAN DIRECTIVE 2005/35 - CASE C-308/06 - GRAND CHAMBER OF 30 JUNE 2009
10 HOW DID THE COURT COME TO THESE CONCLUSIONS?
11 THE COMPATIBILITY OF THE DIRECTIVE WITH UNCLOS 1982
12 THE REQUIREMENT OF LEGAL CERTAINTY
13 THE CONSEQUENCES OF THIS DECISION
14 THE IMO GUIDELINES ON THE FAIR TREATMENT OF SEAFARERS
15 THE FRENCH ERIKA DECISION
16 LET US HAVE A LOOK AT THE FRENCH CRIMINAL CODE
17 AN ACTUAL ASSESSMENT WITH REFERENCE TO THE TREATMENT OF SEAFARERS
18 CONCLUSION
References
Chapter 13 Criminal Liabilities for Ship-Source Pollution Based on the Laws of China
1 PREFACE
2 WHAT KIND OF SHIP-SOURCE POLLUTION ACCIDENTS WILL INVOLVE CRIMINAL LIABILITIES UNDER THE PRESENT PRC LEGISLATION?
2.1 LEGAL BASIS FOR INVESTIGATIONS INTO CRIMINAL LIABILITIES FOR SHIP-SOURCE POLLUTION ACCIDENTS UNDER THE PRESENT LAWS OF THE PRC
2.2 CONDITIONS FOR INVESTIGATIONS INTO SHIP-SOURCE POLLUTION ACCIDENTS FOR CRIMINAL LIABILITIES
2.2.1 The Ship-Source Pollution Accident Causes Serious Consequences of Marine Environmental Pollution
2.2.2 The Ship-Source Pollution Accident or the Pollution Consequence is Caused by a Violation of the Law Committed by the Actor
2.3 EXAMPLES OF SHIP-SOURCE POLLUTION ACCIDENTS THAT MAY BE INVESTIGATED FOR CRIMINAL LIABILITIES
3 WHAT KIND OF PERSON WILL BE INVESTIGATED FOR CRIMINAL LIABILITIES AS A RESULT OF SHIP-SOURCE POLLUTION ACCIDENTS UNDER THE LAWS OF THE PRC?
3.1 MASTERS AND MARINERS
3.2 SHIPOWNERS
3.3 ASHORE EXECUTIVE PERSONNEL OF SHIPOWNERS
3.4 FUNCTIONARIES OF STATE ORGANS RESPONSIBLE FOR ENVIRONMENTAL SUPERVISION AND CONTROL
3.5 INSPECTORS OF CLASSIFICATION SOCIETY AND OTHER VESSEL INSPECTION AGENCIES
4 CRITERION OF LIABILITY FOR CRIMINAL LIABILITIES IN SHIP-SOURCE POLLUTION ACCIDENT
Reference
Chapter 14 Civil and Criminal Liabilities Concerning Marine Pollution in Hong Kong
1 INTRODUCTION
1.1 SHIP-SOURCE MARINE POLLUTION
1.2 RELEVANT LEGISLATIONS IN HONG KONG
2 MARINE POLLUTION LEGISLATIONS OF HONG KONG
2.1 SHIPOWNERS' STRICT LIABILITY
2.1.1 Provisions Regarding Strict Liability under the CLC 1992
2.1.2 Hong Kong Legislation
2.2 LIMITATION OF LIABILITY AND COVER BY THE IOPC FUND
2.2.1 Provisions Regarding Limitation of Liability in the CLC 1992
2.2.2 Local Legislation Regarding Limitation of Liability in Hong Kong
2.2.3 Limitation Actions in Hong Kong
2.2.4 IOPC Fund 1992 Coverage of the Liability of Shipowners
2.2.5 Local Legislation Regarding IOPC Fund 1992 in Hong Kong
2.3 SUMMARY
3 CRIMINAL LIABILITY
3.1 THE REGIME UNDER MARPOL73/78
3.2 LOCAL LEGISLATION REGARDING CRIMINAL LIABILITY IN HONG KONG
4 CONCLUSION
References
Part IV United States
Chapter 15 A Comparison of the Recovery of Compensation for Injury to Natural Resources under the 92 CLC and Fund Conventions with the US Oil Pollution Act of 1990
1 INTRODUCTION
2 OVERVIEW OF MAJOR DIFFERENCES RELATING TO COMPENSATION
3 THE APPROACH UNDER THE CONVENTIONS
4 THE APPROACH IN THE UNITED STATES
5 THE STATUTES: OPA 90
6 REGULATIONS AND JUDICIAL DECISIONS
7 LOSS OF SERVICES PENDING RESTORATION AND THE CONCEPT OF 'COMPENSATORY RESTORATION'
7.1 LOSS OF USE
7.2 COMPENSATORY RESTORATION
8 THE FUTURE
9 CONCLUSION
References
Chapter 16 National Interests Influence in Compensation for Damages Resulting from Oil Pollution: The Experience of the United States and Its Reference to China
1 INTRODUCTION
2 THE US DEVELOPMENT OF COMPENSATION FOR PURE ECONOMIC LOSS RESULTING FROM OIL POLLUTION AND ITS REFERENCE TO CHINA
2.1 THE US DEVELOPMENT OF COMPENSATION FOR PURE ECONOMIC LOSS RESULTING FROM OIL POLLUTION
2.2 LESSONS FROM THE US DEVELOPMENT CONCERNING THE COMPENSATION FOR PURE ECONOMIC LOSS RESULTING FROM OIL POLLUTION FOR CHINA
3 THE US PRACTICE IN COMPULSORY INSURANCE AND FUND FOR DAMAGE RESULTING FROM OIL POLLUTION AND ITS REFERENCE TO CHINA
3.1 THE US PRACTICE IN COMPULSORY INSURANCE AND FUND FOR DAMAGE RESULTING FROM OIL POLLUTION
3.1.1 The US Practice in Compulsory Insurance for Damage Resulting from Oil Pollution
3.1.2 The US Practice in Establishing a Fund for Damage Resulting from Oil Pollution
3.2 LESSONS FROM THE US PRACTICE CONCERNING COMPULSORY INSURANCE AND THE FUND FOR DAMAGE RESULTING FROM OIL POLLUTION FOR CHINA
3.2.1 The Regime of Compulsory Insurance in China and Ways to Improve It
3.2.2 Establishing a Fund for Oil Pollution in China
4 CONCLUSION
References
Chapter 17 Study on Ocean Pollution Damage Legislation between the United States and China: A Comparative Perspective
1 INTRODUCTION
2 THE LEGISLATION OF THE UNITED STATES ON MARINE POLLUTION DAMAGE
3 THE MAIN PROVISIONS OF AMERICAN LEGISLATION ON LIABILITY FOR MARINE POLLUTION
3.1 SCOPE OF APPLICATION
3.1.1 Section 1321(b)(3) of the CWA
3.1.2 Section 2702 of OPA 1990
3.1.3 Section 9601(8) of CERCLA
3.2 SCOPE OF CLAIMS FOR MARINE POLLUTION DAMAGES
3.3 PERSONS LIABLE FOR MARINE POLLUTION DAMAGE
3.4 DEFENCES FOR MARINE POLLUTION LIABILITY
3.5 LIMITATION OF LIABILITY FOR MARINE POLLUTION
4 THE LEGISLATION OF CHINA ON MARINE POLLUTION AND DAMAGE
5 THE MAIN PROVISIONS OF CHINESE LEGISLATION ON LIABILITY FOR MARINE POLLUTION
5.1 CHINA MARITIME CODE
5.2 MEPL
5.3 VESSEL POLLUTION PREVENTION REGULATION
5.4 SHIP-BREAKING POLLUTION PREVENTION REGULATION
5.5 OFFSHORE OIL EXPLORATION AND EXPLOITATION REGULATION
5.6 DUMPING REGULATION
5.7 LAND-BASED POLLUTION REGULATION
5.8 COASTAL CONSTRUCTION POLLUTION REGULATION AND OCEAN CONSTRUCTION POLLUTION REGULATION
6 COMMENTS ON THE CHARACTERISTICS OF AMERICAN LAWS AND CHINESE LAWS
6.1 CHARACTERISTICS OF US LAW
6.2 CHARACTERISTICS OF CHINESE LAWS, REGULATIONS AND RULES
7 CONCLUSION
References
Part V China
Chapter 18 China and International Protection of Marine Environment
1 INTRODUCTION
2 OVERVIEW OF THE INTERNATIONAL LAW FOR THE PROTECTION OF THE MARINE ENVIRONMENT
2.1 HISTORICAL EVOLUTION
2.2 TREATY REGIME
2.2.1 Ocean Dumping
2.2.2 Vessel-Based Pollution
2.2.3 Land-Based Pollution
2.2.4 Intervention in Accidents or Emergency of Oil Pollution
2.2.5 Liability and Compensation for Pollution Damages
2.2.6 Conservation of Marine Living Resources
2.3 COMPETENT INSTITUTIONS
3 CHINA: CHALLENGES AND LEGAL RESPONSES
3.1 CHALLENGES OF THE COSTAL AND MARINE ENVIRONMENT
3.1.1 Polluted Marine Areas
3.1.2 Eutrophication
3.1.3 Oil Spills
3.1.4 Habitats Destruction
3.1.5 Overfishing
3.2 LEGAL RESPONSES: EXTERNAL
3.3 LEGAL RESPONSES: INTERNAL
3.4 SELECT ISSUES IN THE LEGAL RESPONSES
3.4.1 Land-Based Sources of Pollution
3.4.1.1 Environmental Impact Assessment
3.4.1.2 Land-Use Planning
3.4.2 Water Resources and Water Pollution
3.4.2.1 Other Sources of Pollution
3.4.3 Vessel-Based Pollution
3.4.3.1 Regulatory Authority
3.4.3.2 Implementation of MARPOL 73/78
3.4.4 Dumping of Waste and Other Matters
3.4.5 Exploitation of Marine Resources
3.4.5.1 Living Resources
3.4.5.2 Non-Living Resources at the Sea-Bed
3.4.6 Protection of Critical Areas
3.4.7 National Marine Environmental Policies and Strategies
3.4.7.1 General Economic, Social and Environmental Policies
3.4.7.2 Policies and Strategies for Marine Environment and Coastal Development and Management
4 CONCLUSION
Annex
References
Chapter 19 On the Application of CLC 92 in China
1 INTRODUCTION
2 REASONS TO APPLY CLC TO CHINESE PURELY DOMESTIC OIL POLLUTION CASES
2.1 THE VIEW THAT 'INTERNATIONAL CONVENTIONS ONLY REGULATE LEGAL RELATIONSHIPS WITH FOREIGN-RELATED FACTORS' IS INACCURATE
2.2 THE SO-CALLED 'PRINCIPLE OF INSIDE-OUTSIDE DISTINCTION' SHOULD NOT BE THE BASIC PRINCIPLE FOR APPLYING INTERNATIONAL CONVENTIONS IN CHINA
2.3 APPLYING CLC TO PURELY DOMESTIC CASES COULD ACCELERATE THE DEVELOPMENT OF CHINESE SHIPPING INDUSTRY
2.4 APPLYING CLC TO PURELY DOMESTIC OIL POLLUTION CASES COULD RESOLVE SOME PRACTICAL ISSUES IN CHINESE JUDICIAL PRACTICE
3 CONCLUSION
References
Chapter 20 Compensation for the Domestic Oil Pollution in China's Coast: Which Law Shall Apply?
1 INTRODUCTION
2 THE APPLICATION OF CLC IN THE DOMESTIC OIL SPILLS
3 THE REASONS FOR THE APPLICATION OF THE DOMESTIC LAW
4 THE RATIONALE FOR THE APPLICATION OF DOMESTIC LAW
4.1 THE LIMITATIONS OF THE MARINE ENVIRONMENT PROTECTION LAW
4.2 THE STRICT LIABILITY AND COMPENSATORY DAMAGE IN THE GENERAL PRINCIPLES OF THE CIVIL LAW IS NOT APPLICABLE TO DOMESTIC OIL SPILL DISPUTES
4.3 THE APPLICATION OF THE MARITIME CODE IN THE COASTAL OIL SPILLS COMPENSATION
5 THE SOLUTION: THE ESTABLISHMENT OF A LEX SPECIALIS AND A COMPENSATION FUND
6 CONCLUSION
References
Chapter 21 Compulsory Liability Insurance on Carriage of Liquid and Dangerous Cargo by Coastal and Inland Waters in China
1 INTRODUCTION
2 THE FUNCTIONS OF THE COMPULSORY LIABILITY INSURANCE
2.1 THE FUNCTION OF STRONG SOCIAL ADMINISTRATION
2.2 THE FUNCTION OF EXTENSIVE ECONOMICAL INDEMNIFICATION
3 NECESSITY OF COMPULSORY LIABILITY INSURANCE ON CARRIAGE OF LIQUID AND DANGEROUS CARGO TRANSPORTATION
4 GLANCE ON THE CURRENT LAWS ON THE PREVENTION OF POLLUTION TO THE OCEAN
4.1 INTERNATIONAL CONVENTIONS
4.1.1 MARPOL73/78
4.1.2 CLC 1992
4.1.3 HNS Convention 1996
4.1.4 The Bunker Convention 2001
4.2 DOMESTIC LAWS
5 OBSTACLES
5.1 THE SCOPE OF LIQUID AND DANGEROUS CARGO IS DIFFICULT TO DEFINE
5.2 COMPANIES' LACK OF STRONG SENSE OF RESPONSIBILITY FOR OBTAINING PUBLIC LIABILITY INSURANCE
5.3 DISADVANTAGES OF COMPULSORY LIABILITY INSURANCE
5.4 LIMITATION OF INSURANCE PRODUCT
5.5 OBSTACLES IN LAW
6 PROSPECT
6.1 THE JOINT EFFORT OF THE CHINA INSURANCE REGULATORY COMMISSION AND THE MINISTRY OF TRANSPORT OF CHINA
6.2 EXPERIMENT ON SELECTED INDUSTRIES
6.3 DEVELOPMENT OF INSURANCE PRODUCT
7 CONCLUSION
References
Chapter 22 The Factors Affecting Judicial Authentication on Maritime Oil Pollution and Relevant Solving Measures
1 INTRODUCTION
2 BASIC LEGAL PROVISIONS OF JUDICIAL AUTHENTICATION
3 FACTORS AFFECTING IMPARTIALITY OF JUDICIAL AUTHENTICATION
4 CONTROVERSY ON THE SCOPE OF MARITIME OIL POLLUTION AUTHENTICATION
5 DIFFICULTIES OF DETERMINING AUTHENTICATION REPORTS AND RELEVANT SOLVING MEASURES
References
Part VI Case Studies
Chapter 23 Legal Issues from the Hebei Spirit Oil Spill Incident
1 INTRODUCTION
2 THE INCIDENT
3 INVESTIGATION INTO THE INCIDENT AND LITIGATIONS
3.1 INVESTIGATION INTO THE INCIDENT
3.1.1 Investigations Conducted by KMST
3.1.2 Investigation Conducted by MARDEP
3.2 CRIMINAL LITIGATIONS IN KOREA
3.2.1 The First Trial
3.2.2 The Second Trial
3.2.3 The Third Trial
3.2.4 Strong Reactions from the International Community
3.3 CIVIL LITIGATIONS IN KOREA
3.3.1 Claims for Pollution Damages against SHI Etc. and SHI's Application for Limitation
3.3.2 Owners' Application for Limitation of Liability
3.4 RECOURSE LITIGATIONS IN CHINA
4 ASSESSMENT AND SETTLEMENTS OF OIL POLLUTION CLAIMS
5 MEASURES TAKEN BY KOREAN GOVERNMENT
5.1 SPECIAL LAW FOR THE SUPPORT OF THE VICTIMS OF THE HEBEI SPIRIT OIL POLLUTION INCIDENT
5.2 KOREAN GOVERNMENT'S DECISION TO 'STAND LAST IN THE QUEUE'
5.3 HARDSHIP PAYMENTS MADE BY THE KOREAN GOVERNMENT
6 WHAT MAY BE LEARNT IN LEGAL PERSPECTIVES BY CHINA?
6.1 OIL WATER-BORNE TRANSPORT AND LEGISLATIONS IN CHINA
6.2 THE NECESSITY OF SETTING UP A DOMESTIC OIL POLLUTION COMPENSATION FUND
6.3 IMPROVEMENT OF STATUTORY PROVISIONS REGARDING COMPENSATION FOR OIL POLLUTION DAMAGES FROM SHIPS
6.4 IMPROVEMENT OF LAW REGARDING CRIMINAL LIABILITY OF OFFENDING SEAFARERS
6.5 IMPROVEMENT OF EMERGENCY RESPONSE SYSTEM
7 CONCLUSION
Chapter 24 A Review and Critical Analysis on the MSC Ilona Oil Spill Incident at Pearl River Estuary
1 INCIDENT REVIEW
2 CRITICAL ANALYSIS TO THE INCIDENT EMERGENCY TREATMENT
2.1 POTENTIAL EFFICIENCY OF REGIONAL EMERGENCY RESOURCES HAS NOT BEEN FULLY DEPLOYED
2.2 ESTABLISHING A COLLABORATION SYSTEM OF OIL SPILL EMERGENCY TREATMENT AT THE PEARL RIVER ESTUARY COULD GREATLY ENHANCE THE OIL SPILL EMERGENCY TREATMENT EFFICIENCY
3 LODGING OF CLAIMS EXPOSES THE DISTEMPERENESS OF COMPENSATION LAWS AND SYSTEMS
3.1 THE PROCESS OF CLAIM LODGING
3.2 DIVERGENCE ON HOW ENTITY RESPONSIBLE FOR INCIDENT SHOULD ASSUME LIABILITY IS THE MAIN BARRIER TO COMPENSATION NEGOTIATIONS
3.3 ANALYSIS ON HOW TO ASSUME LIABILITY
3.4 DIVERGENCE ON WHETHER CLEANUP COST HAS THE PRIORITY OF GAINING COMPENSATION LEADS TO DISPUTE ON THE DISTRIBUTION OF COMPENSATION
4 COUNTERMEASURES AND SUGGESTIONS
4.1 TO ACCELERATE THE COMPLETENESS OF RELEVANT LEGISLATIONS SUCH AS 'CMC' IN ORDER TO EFFECTIVELY PROTECT THE BENEFIT OF AGGRIEVED PARTY OF POLLUTION AND PARTICIPANTS OF CLEANUP OPERATIONS
4.2 TO IMPLEMENT MEASURES AS ESTABLISHING EXCLUSIVE FUNDS FOR OIL SPILL DAMAGE TO INCREASE THE EMERGENCY POWER TO DEAL WITH OIL SPILLS
4.3 TO ENHANCE EFFICIENCY OF EMERGENCY TREATMENT BY RATIONALIZING THE MANAGING SYSTEM AND COMPLETING EMERGENCY EVALUATION SYSTEM
References
Chapter 25 A Case Study of Compensation for Marine Oil Pollution Damage: Centring in the Compensation Claim of the Amorgos Oil Pollution Accident
1 MV AMORGOS CLAIMS PROCESS
1.1 BACKGROUND
1.2 DISPUTES
1.2.1 An International or Domestic Case
1.2.2 Time-Consuming Nature of International Maritime Claims
1.2.3 The High Cost of International Maritime Claims
1.2.4 The Amount Claimed for Damages
1.2.5 Regulations Limiting the Liability of the Country in Which the Shipowner and the Ship Operator Are Registered
1.2.6 Wreckage Removal
1.3 RELEVANT INTERNATIONAL REGIMES
1.3.1 Scope of Application
1.3.1.1 Ship
1.3.1.2 Bunker Oil
1.3.1.3 Geographical Coverage
1.3.2 Party or Parties Liable for Compensation
1.3.3 Basis of Liability and Criteria of Exclusions
1.3.4 Scope of Compensation
1.3.5 Limitation of Liability
1.3.6 Compulsory Insurance or Financial Security
1.3.7 Direct Litigation Regime
1.3.8 Time Limits for Claiming Compensation
1.3.9 Jurisdiction
1.4 ANALYSIS AND ASSESSMENT OF THE CASE
1.4.1 Applicable Laws and Court with Jurisdiction
1.4.2 Who Should Be the Claimant
1.4.3 Claim for Compensation and Scope of Liability
1.4.4 Party or Parties against Which Pollution Damage Is Claimed
1.4.5 Appropriateness to Restrict the Crew from Leaving Taiwan
2 DISCUSSION ON APPLICABLE TAIWAN LEGAL REGIMES OF COMPENSATION FOR MARINE OIL POLLUTION
2.1 LIABILITY TO DAMAGE COMPENSATION FOR TORT IN THE CIVIL LAW OF TAIWAN
2.2 APPLICATION OF INTERNATIONAL CONVENTIONS ON THE OIL POLLUTION CASES IN TAIWAN
2.2.1 Restricted Affirmation
2.2.2 Affirmation
2.2.3 Negation
2.3 DISCUSSION AND REVIEW OF TAIWAN'S LEGISLATION ON MARINE OIL POLLUTION
3 CONCLUSION
Part VII Comparative Conclusions
Chapter 26 Comparative Conclusions
1 INTRODUCTION
2 PREVENTION
3 COMPENSATION ISSUES
4 THE BUNKER CONVENTION
5 CRIMINAL LAW
6 THE UNITED STATES AS EXAMPLE?
7 DAMAGE ASSESSMENT, CLAIMS HANDLING AND INSURANCE IN CHINA
8 CASE STUDIES
9 THE WAY FORWARD
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