Prevention and Compensation of Marine Pollution Damage

Name: Prevention and Compensation of Marine Pollution Damage | Recent Developments in Europe, China and the US
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Recent Developments in Europe, China and the US

Michael G. Faure James Hu(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 30. Mai 2006

396 Seiten

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Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
FOREWORD
1 DEFINING THE PROBLEM
2 PROJECT HISTORY
3 METHODOLOGY
3.1 LEGAL MULTIDISCIPLINARY
3.2 COMPARATIVE APPROACH
3.3 LAW AND ECONOMICS
3.4 CASE STUDIES
4 FRAMEWORK OF THE PROJECT
5 TOPICS
6 STRUCTURE OF THE PRESENTATION
7 CONTRIBUTORS
8 ACKNOWLEDGEMENTS
TABLE OF CONTENTS
LIST OF CONTRIBUTORS
LIST OF ABBREVIATIONS
PART I: PREVENTION AND SANCTIONING OF MARINE POLLUTION DAMAGE
RECENT DEVELOPMENTS IN THE EU MARINE OIL POLLUTION REGIME
1 INTRODUCTION
2 BASIC FRAMEWORK OF EU MARINE OIL POLLUTION LEGISLATION
2.1 1978-1992: FIRST SET OF ACTIONS
2.1.1 The 1978 Resolution: Start of Community Action
2.1.2 The 1990 Resolution
2.2 1993-2000: SECOND SET OF ACTIONS
2.2.1 The 1993 Communication
2.2.2 1993 Directive 93/75/EEC
2.2.3 1994 Council Regulation 2978/94
2.2.4 The 2000 Decision: Legal Basis for Community Action
2.3 POST ERIKA & PRESTIGE
2.3.1 Erika I and II Packages
2.3.2 Post-Prestige
2.4 NEW CHALLENGES FOR THE ENLARGED EU
3 SPECIFIC ISSUES
3.1 PORT STATE CONTROL
3.1.1 Background - Paris MOU on Port State Control
3.1.2 1995 Directive 95/21/EC
3.1.3 2000 Erika I-Directive 2001/106/EC
3.1.4 Prestige
3.2 NOTIFICATION/REPORT SYSTEM
3.2.1 Directive 93/75/EEC
3.2.2 Erika II
3.3 CLASSIFICATION SOCIETY
3.3.1 Council Directive 94/57/EC
3.3.2 Commission Directive 97/58/EC
3.3.3 Erika I
3.3.4 Prestige
3.4 SINGLE HULL TANKER
3.4.1 International v. US Regimes on Single Hull/Double Hull Tankers
3.4.2 Council Regulation 2978/94
3.4.3 Erika I - Regulation 417/2002
3.4.4 Prestige
3.5 LIABILITY AND COMPENSATION
3.5.1 Post-Erika
3.5.1.1 Erika I Proposals
3.5.1.2 Erika II Proposals
3.5.2 Post-Prestige: The 2002 Communication & 2003 Proposal
3.5.3 Limitation of Liability
3.5.3.1 Erika
3.5.3.2 The 2002 Communication
3.5.3.3 The 2003 Proposal
3.5.4 Definition of Pollution Damage
3.5.5 Balance of Responsibilities
4 CONCLUDING REMARKS
LIST OF REFERENCES
OIL POLLUTION PREVENTION AND ENFORCEMENT MEASURES AND THEIR EFFECTIVENESS: A SURVEY OF EMPIRICAL RESEARCH FROM THE US
1 INTRODUCTION
2 OIL SPILL PREVENTION AND ENFORCEMENT MECHANISMS IN THE US
3 ECONOMIC THEORY OF OIL SPILL PREVENTION AND ENFORCEMENT
4 EMPIRICAL EVIDENCE ON OIL SPILL PREVENTION AND ENFORCEMENT
5 CONCLUDING REMARKS
LIST OF REFERENCES
MARINE (OIL) POLLUTION: PREVENTION AND PROTECTION BY CRIMINAL LAW - INTERNATIONAL PERSPECTIVES, CORPORATE AND/OR INDIVIDUAL CRIMINAL LIABILITY
1 INTRODUCTION
2 PROBLEMS AND SHORTCOMINGS IN INTERNATIONAL LAWS OF MARINE POLLUTION
2.1 GENERAL QUESTIONS
2.1.1 Jurisdiction
2.1.2 Technical Safety, Control Management, Compensation
2.1.3 Compensation Shortcomings
2.2 THE NEED FOR REFORM
3 COMBATING AND PREVENTING MARINE POLLUTION THROUGH CRIMINAL LAW
3.1 INTERNATIONAL FRAMEWORKS: OPPORTUNITIES AND LIMITATIONS
3.2 CRIMINAL LIABILITY: SHORTCOMINGS OF INDIVIDUAL RESPONSIBILITY
3.3 CORPORATE CRIMINAL LIABILITY
3.3.1 Approaches by an International View
3.3.2 Sanctions
4 SUMMARY AND CONCLUDING REMARKS
LIST OF REFERENCES
INTERDEPENDENCIES BETWEEN CRIMINAL LAW AND OIL POLLUTION REGULATION IN CHINA
1 INITITAL POSITION IN CHINA
1.1 MARINE OIL POLLUTION IN THE CHINESE REALITY
1.2 ECONOMIC DEVELOPMENT AND ENERGY IN CIllNA
1.3 MARINE OIL POLLUTION AND Focus OF THE REpORT
2 THE LEGAL MILIEU
2.1 INTERNATIONAL LAW
2.2 NATIONAL LAW: OIL POLLUTION REGUlATIONS
2.2.1 The Relevant Legislation
2.2.2. Administrative Sanctions and Other Forms of Sanctions
3 APPROACH OF THE CRIMINAL LAW
3.1 PRECONDITIONS
3.2 DEVELOPMENT OF CRIMES AGAINST THE ENVIRONMENT
3.3 CRIMES HAVING TO DO WITH OIL POLLUTION
3.3.1 Art. 338 PL (Considerable Accident with Environmental Pollution)
3.3.2 Art. 408 PL (Misconduct in Office while Supervising and Controlling the Environment)
3.3.3 Art. 136 PL (Trouble with Dangerous Objects)
4 INTERDEPENDENCIES BETWEEN ENVIRONMENTAL CRIMINAL LAW AND OIL POLLUTION REGULATION
4.1 GENERAL REMARKS
4.2 DEPENDENCE OF CRIMINAL LAW ON ADMINISTRATIVE REGULATION
4.2.1 Function
4.2.2 Form
4.2.3 Integration in the Structure of Criminal Law
4.3 MENS REA
4.4 FALSE ALLOWANCES
5 CONCLUSIONS
5.1 CONCLUSION ON THE GENERAL INTERDEPENDENCIES BETWEEN CRIMINAL LAW AND ENVIRONMENTAL LAW
5.2 CONCLUSION ON THE INTERDEPENDENCIES BETWEEN CRIMINAL LAW AND OIL POLLUTION REGULATION
LIST OF REFERENCES
JURISDICTION OF THE PEOPLE'S REPUBLIC OF CHINA OVER POLLUTION FROM VESSELS IN ITS EXCLUSIVE ECONOMIC ZONE
1 INTRODUCTION
2 LEGAL RESOURCES FOR CHINA TO EXERCISE ITS JURISDICTION
3 SUBSTANTIVE REQUIREMENTS FOR CHINA TO EXERCISE ITS JURISDICTION.
4 PROCEDURAL REQUIREMENTS FOR CHINA TO EXERCISE ITS JURISDICTION
5 JURISDICTION EXERCISED BY CHINA IN CIVIL PROCEEDINGS
6 REVISION OF MARINE ENVIRONMENT PROTECTION LAWS
7 CONCLUSIONS
LIST OF REFERENCES
PART II: COMPENSATION OF MARINE POLLUTION DAMAGE: CASE STUDIES
INDONESIA'S LAWS AND REGULATIONS CONCERNING POLLUTION OF THE SEA BY OIL: CASE STUDIES ON COMPENSATION FOR OIL POLLUTION DAMAGES
1 INTRODUCTION
2 INSTITUTIONAL ARRANGEMENTS
3 NON-GOVERNMENTAL ORGANIZATIONS
4 ENVIRONMENTAL LEGISLATION IN INDONESIA
4.1 THE 1982 UNCLOS (AS RATIFIED BY LAW No. 17 OF 1985) AND THE MARINE ENVIRONMENT
4.2 IMO CONVENTIONS, AS RATIFIED BY PRESIDENTIAL DECREES OF 1978,1986 AND 1999
4.3 RELEVANT NATIONAL LAWS AND REGULATIONS
4.3.1 Law No.6 of 1996 on Indonesian Territorial Waters
4.3.2 Law No. 23 of 1997 concerning the Management of the Living Environment
4.3.3 Government Regulation No. 19 of 1999 on Marine Pollution Control
4.3.4 Law No. 21 of 1992 on Shipping
4.3.5 Decree of the Minister for Communication No. 86 of 1990 on the Prevention of Pollution of Oil from Vessels
4.3.6 Law No. 22 of 2001 on Oil and Gas
4.3.7 Law No. 22 of 1999 on Regional Government
4.3.8 Other Laws and Regulations
5 PROBLEMS IN IMPLEMENTING ENVIRONMENTAL LEGISLATION
5.1 GOVERNMENT AGENCIES
5.2 DEPARTMENT OF MARINE AFFAIRS AND FISHERIES
6 REGIONAL INITIATIVES
7 DRAFT NATIONAL CONTINGENCY PLAN
8 CASES INVOLVING POLLUTION OF THE SEA BY OIL
8.1 THE NAGASAKI SPIRIT MARINE POLLUTION CASUALTY
8.2 THE MT NATUNA SEA OIL SPILL
8.3 THE MT KING FISHER INCIDENT
9 CONCLUSION
LIST OF REFERENCES
PROTECTION OF THE MARINE ENVIRONMENT UNDER BELGIAN LAW
1 INTRODUCTION
2 CONTENTS OF THE BELGIAN STATUTE MARINE ENVIRONMENT
3 IMPORTANCE OF THE NORTH SEA AND THE RISK OF POLLUTION
4 THE BELGIAN STATUTE MARINE ENVIRONMENT
4.1 GENERAL APPROACH
4.1.1 Field of Application
4.1.2 Aim and Basic Principles
4.2 PREVENTION AND A VOIDANCE OF DAMAGE TO AND DISRUPTION OF THE MARINE ENVIRONMENT
4.2.1 Damages to and Disruption of the Marine Environment
4.2.1.1 Damage to the Marine Environment
4.2.1.2 Disruption of the Marine Environment
4.2.2 Compensation
4.2.2.1 Who has the Right to claim for Compensation?
4.2.2.2 Limitation of Liability
4.2.2.3 Compensation: Restoration in Kind?
4.2.2.4 Bail or Guarantee Declaration
5 POLLUTION IN PRACTICE
5.1 AIR SURVEILLANCE BY THE MANAGEMENT UNIT OF THE NORTH SEA MATHEMATICAL MODELS (MUMM)
5.2 RECEPTION FACILITIES AND PORT STATE CONTROL
5.3 NORTH SEA DISASTER PLAN AND PLACES OF REFUGE
5.4 LEGAL ASPECTS: JUDICIAL PROCEEDINGS
5.5 FUTURE DEVELOPMENTS: ZERO TOLERANCE!
5.5.1 Maximize the Chances of Apprehension: the Introduction of Unmanned Cameras
5.5.2 Referee Magistrate North Sea
5.5.3 Active International Cooperation
5.5.4 Equipment
5.5.5 Compensation for Disruption of the Environment
6 CONCLUSION
LIST OF REFERENCES
COMPENSATION FOR OIL POLLUTION DAMAGES: THE AMERICAN OIL POLLUTION ACT AS AN EXAMPLE FOR GLOBAL SOLUTIONS?
1 INTRODUCTION
2 OPA AND US NATURAL RESOURCE DAMAGES LAW
2.1 WHAT IS A NATURAL RESOURCE DAMAGE?
2.2 COMMON LAW FOUNDATIONS
2.3 ADMINISTRATIVE ISSUES
3 CALCULATING DAMAGES
3.1 THE HISTORY OF NRD ASSESSMENT
3.2 THE CHALLENGE OF ECOSYSTEM SERVICE ASSESSMENT
3.3 THE POLITICS OF NRD
3.4 DAMAGES: LOST BENEFITS VERSUS REPLACEMENT COST
4 NRD CLAIMS - SCALE AND FREQUENCY
5 FINANCIAL ASSURANCE'S ROLE IN COMPENSATION AND DETERRENCE
6 CONCLUSION
LIST OF REFERENCES
THE PRESTIGE CASE. INTERNATIONAL AND SPANISH LEGAL REGIME FOR COMPENSATING DAMAGE
1 RAISING THE PROBLEM
2 GENERAL OVERVIEW OF THE SYSTEM OF CIVIL LIABILITY AS A MECHANISM FOR COMPENSATING ENVIRONMENTAL DAMAGE
3 INTERNATIONAL FRAMEWORK. INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE AND INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE
4 THE SPANISH SYSTEM OF CIVIL LIABILITY AND ITS APPLICATION IN THE PRESTIGE CASE
5 THE ROYAL DECREE-LAW 4/2003, OF 23 JUNE 2003
5.1 LEGAL FRAMEWORK OF THE AGREEMENT BETWEEN STATE AND VICTIMS REGUlATED IN THE ROYAL DECREE-LAW
5.2 SUBJECTIVE FRAMEWORK. THE VICTIMS
5.3 WAIVING TO THE CLAIMS BY THE VICTIMS
6 FINAL NOTE
LIST OF REFERENCES
PART III: COMPENSATING MARINE POLLUTION DAMAGE IN CHINA
THE ENFORCEMENT OF INTERNATIONAL CONVENTIONS FOR THE PREVENTION OF POLLUTION FROM SHIPS AND COMPENSATION FOR POLLUTION DAMAGE IN CHINA
1 INTRODUCTION
2 BRIEF INTRODUCTION TO THE INTERNATIONAL CONVENTIONS FOR THE PREVENTION OF POLLUTION FROM SHIPS AND COMPENSATION FOR POLLUTION DAMAGE TO WHICH CHINA HAS ACCEDED
3 THE MAIN MEASURES OF ENFORCING INTERNATIONAL CONVENTIONS
3.1 ADOPTION
3.2 TRANSFORMATION
3.3 MIXTURE OF ADOPTION AND TRANSFORMATION
4 THE CURRENT STATUS QUO FOR THE APPLICATION OF INTERNATIONAL CONVENTIONS ON THE PREVENTION OF POLLUTION FROM SHIPS AND FOR COMPENSATION FOR POLLUTION DAMAGE IN CHINA
4.1 THE EXISTING REGULATIONS FOR THE APPLICATION OF CONVENTIONS IN CHINA
4.2 CHINA'S PRACTICE IN IMPLEMENTING THE CONVENTIONS
4.3 THE CURRENT STATUS QUO FOR THE APPLICATION OF INTERNATIONAL CONVENTIONS ON THE PREVENTION OF POLLUTION FROM SHIPS AND FOR COMPENSATION FOR POLLUTION DAMAGE IN CHINA IN PRACTICE
5 SUGGESTIONS ON THE APPLICATION OF INTERNATIONAL CONVENTIONS
LIST OF REFERENCES
APPLICATION OF LAW IN CIVIL LIABILITY FOR OIL POLLUTION DAMAGE CAUSED BY COASTAL VESSELS IN CHINA
1 INTRODUCTION
2 DIVERSITY OF VIEWS REGARDING APPLICATION OF LAW
2.1 APPLICATION OF CLC
2.2 APPLICATION OF CIVIL LAW
2.3 APPLICATION OF THE MARITIME CODE
3 APPLICATION OF THE CLC
3.1 THE APPLICATION OF INTERNATIONAL CONVENTIONS IN CHINA GENERALLY
3.2 NON-APPLICABILITY OF CLC TO CASES WITHOUT FOREIGN ELEMENTS
3.3 APPLICATION OF THE CLC TO COASTAL VESSELS INVOLVING FOREIGN ELEMENTS
3.4 ANALYSIS ON VIEWS IN FAVOUR OF THE APPLICATION OF THE CLC TO CASES WITHOUT FOREIGN ELEMENTS
3.4.1 By Virtue of the Administrative Regulations on Preventing Marine Pollution from Ships
3.4.2 By Virtue of Governmental Notices for Implementing the 1969 CLC
3.5 INTEREST-ORIENTATED CONSIDERATION
4 APPLICABLE DOMESTIC LAWS
4.1 COMMON FEATURES OF APPLICATION
4.2 PRIORITY ISSUES
5 THE NECESSITY OF A SPECIFIC LEGAL REGIME
6 CONCLUSIONS
LIST OF REFERENCES
A STUDY OF THE LEGAL NATURE OF COMPULSORY CLEAN-UP COSTS UNDER CHINESE LAW
1 INTRODUCTION
2 COMPULSORY CLEAN-UP ACTS AS COMPULSORY ADMINISTRATIVE MEASURES
3 LEGAL NATURE OF THE COMPULSORY CLEAN-UP COSTS BORNE BY RESPONSIBLE PARTIES
3.1 COMPULSORY CLEAN-UP COSTS AS COSTS OF SUBSTITUTION OF PERFORMANCE UNDER ADMINISTRATIVE LAW
3.1.1 Compulsory Clean-up Acts as Indirect Compulsory Acts
3.1.2 Compulsory Clean-up Costs as those of Substituted Performance of Carrying out Compulsory Administrative Measures
3.2 TORTIOUS LIABILITY UNDER THE CIVIL LAW
3.2.1 Compulsory Clean-up Costs within Tortious Liability
3.2.2 Compulsory Clean-up Costs within the Scope of Civil Compensation Liability
3.3 CONTRIBUTION TO THE REALISATION OF UNIFORMITY OF FAIRNESS AND EFFICIENCY
3.4 THE INTERNATIONAL TENDENCY TO TREAT PAYMENT OF COMPULSORY CLEAN-UP COSTS AS CIVIL LIABILITY
4 CONCLUSIONS
LIST OF REFERENCES
DISCUSSION ON THE NATIONAL CLAIM SYSTEM FOR OIL POLLUTION DAMAGE FROM SHIPS
1 INTRODUCTION
2 THE NEED TO SET UP THE NATIONAL CLAIM SYSTEM FOR OIL POLLUTION DAMAGE CAUSED BY SHIPS
3 ESTABLISHMENT OF THE SUBJECT OF THE NATIONAL CLAIM FOR OIL POLLUTION DAMAGE FROM SHIPS
3.1 QUALIFICATION OF THE COUNTRY TO PROPOSE THE OIL POLLUTION CLAIM
3.2 EXERCISE BY THE ADMINISTRATIVE AUTHORITY OF A RIGHT TO FILE CLAIMS ON BEHALF OF THE COUNTRY
3.2.1 Administrative Authority Entitlement to bring an Action as Trustee of National Property
3.2.2 Equality of the Administrative Authority as a Civil Subject in Claims for Damages from Oil Pollution
4 PRACTICE IN NATIONAL CLAIMS OF OIL POLLUTION DAMAGE FROM SHIPS
5 THE SCOPE OF A NATIONAL CLAIM SYSTEM FOR OIL POLLUTION DAMAGE FROM SHIPS
5.1 COMPENSATION FOR THE CLEAN-UP CHARGES
5.2 COMPENSATION FOR PURE ECONOMIC LOSS
5.3 PUNITIVE DAMAGE
6 CONCLUSION
LIST OF REFERENCES
A STUDY ON THE TYPES OF LIABILITY OF THE INSURER FOR OIL POLLUTION AND THAT OF THE PARTY LIABLE
1 INTRODUCTION
2 PRESENTATION OF THE PROBLEM
3 RELATIVE CONCEPTS OF LIABILITY INSURANCE
3.1 ORIGIN AND DEVELOPMENT OF LIABILITY INSURANCE
3.2 SUBSTITUTE LIABILITY FOR COMPENSATION OF THE LIABILITY INSURER
3.3 VICTIM'S RIGHT OF DIRECT ACTION
3.3.1 Doctrine of Original Acquisition (Doctrine of Statutory Rights)
3.3.2 The Doctrine of Payment without Evasion of Liability
3.4 RESTRICTION ON THE INSURER'S RIGHT TO CALL ON DEFENSES
4 ISSUES RELATED TO COMPENSATION LIABILITY FOR OIL POLLUTION DAMAGE
4.1 THE CURRENT STATUS OF LEGISLATION IN RESPECT OF OIL POLLUTION DAMAGE IN CHINA
4.2 THE PRINCIPLE OF IMPUTATION OF COMPENSATION LIABILITY FOR OIL POLLUTION DAMAGE
4.3 THE PROMOTION OF COMPULSORY LIABILITY INSURANCE FOR OIL POLLUTION
4.4 THE SYSTEM OF DIRECT ACTION
5 NON-TYPICAL JOINT AND SEVERAL LIABILITY BETWEEN THE INSURER FOR OIL POLLUTION AND THE PARTY LIABLE FOR OIL POLLUTION
5.1 NON-TYPICAL JOINT AND SEVERAL LIABILITY IN THE FRAMEWORK OF THE CURRENT LAW
5.2 THE LEGISLATIVE TREND OF THE JOINT AND SEVERAL LIABILITY
6 PERFECTION OF LEGISLATION REGARDING COMPENSATION FOR DAMAGES OF SHIP OIL POLLUTION
6.1 THE SUBSTANTIVE CONTENT OF THE DIRECT ACTION
6.2 OIL TANKER TO BE COVERED BY COMPULSORY INSURANCE
6.3 ESTABLISHMENT OF A SCHEME OF PAYMENT ON ACCOUNT
7 CONCLUDING REMARKS
LIST OF REFERENCES
JUDICIAL AUTHENTICATION OF MARINE POLLUTION DAMAGES
1 INTRODUCTION
2 THE CURRENT SYSTEM OF JUDICIAL AUTHENTICATION OF MARINE POLLUTION DAMAGES IN CHINA
2.1 THE CURRENT JUDICIAL AUTHENTICATION SYSTEM IN CHINA
2.1.1 Authentication Determination System
2.1.2 Authentication Subject System
2.1.3 Expert Witness Selecting and Appointing System
2.2 SYSTEM OF JUDICIAL AUTHENTICATION OF MARINE POLLUTION DAMAGES
3 ANALYSIS OF OBJECTIVITY AND AUTHENTICITY OF MARINE POLLUTION DAMAGES AUTHENTICATION REPORTS
3.1 FEATURES OF JUDICIAL AUTHENTICATION
3.2 ESSENCE AND FEATURES OF THE AUTHENTICATION REPORT
3.2.1 Essence of the Authentication Report
3.2.2 Features of the Authentication Report
3.2.2.1 Dualism of Subjectivity and Objectivity
3.2.2.2 The Dual Tendency of Authenticity and Distortion
3.3 POSSIBILITIES FOR THE DISTORTION OF THE AUTHENTICATION REPORT AND THEIR REMOVAL
3.3.1 Analysis of the Causes of Distortion
3.3.1.1 Inauthentic Materials
3.3.1.2 Improper Process
3.3.1.3 Incorrect Theories used in Authentication
3.3.1.4 Subjectivity o/the Expert Witness
3.3.2 Prevention of Authentication Report Distortion
3.3.2.1 Selection and Appointment of Proper Expert Witness
3.3.2.2 Strict Conformance to the Regulations and Procedural Rules
3.3.2.3 Judicial Authentication Review
4 THE ROLE OF THE AUTHENTICATION REPORT IN LITIGATION FOR MARINE POLLUTION DAMAGES COMPENSATION
4.1 EVIDENTIAL EFFECT OF THE AUTHENTICATION REPORT
4.2 STATUS OF THE EXPERT WITNESS IN LITIGATION
5 CONCLUSION
LIST OF REFERENCES
THE NECESSITY OF INCORPORATING MARINE ENVIRONMENTAL TORTS INTO THE MARITIME LEGAL SYSTEM
1 INTRODUCTION
2 DEFINITION AND TYPES OF MARINE ENVIRONMENTAL TORTS
2.1 CHARACTERISTICS OF MARINE ENVIRONMENTAL TORTS
2.2 CATEGORIZATION OF MARINE ENVIRONMENTAL TORTS
3 ANALYSIS OF THE DEFICIENCY OF THE STATUS IN THE CIVIL REMEDIES FOR MARINE ENVIRONMENTAL TORTS IN CHINA
3.1 THE STATUS OF CIVIL REMEDIES FOR MARINE ENVIRONMENTAL TORTS REGULATED BY LAW IN CHINA
3.2 ANALYSIS OF CHINA'S CURRENT CIVIL REMEDY SYSTEM FOR MARINE ENVIRONMENTAL TORTS, AND ITS DEFICIENCIES
4 THE NECESSITY TO INCORPORATE MARINE ENVIRONMENTAL TORTS INTO THE MARINE TORT LAW
4.1 THE TREND OF EXPANDING THE SCOPE OF MODERN MARINE TORT LAW
4.2 THE AVOIDANCE OF CONTRADICTION IN THE SYSTEM
4.3 PROTECTION OF THE LEGAL RIGHTS AND INTERESTS OF THE PARTIES CONCERNED
4.3.1 The marine tort legal system is useful for the development and utilisation of economic activities at sea
4.3.2 The special system of compensation in marine tort law contributes to sufficient compensation, and to the development of the ocean
4.4 FACILITATION OF JUDICIAL REMEDIES OF MARINE ENVIRONMENTAL TORTS
5 CONCLUSIONS
LIST OF REFERENCES
THE LEGAL PROTECTION OF THE MARINE ENVIRONMENT IN CHINA: CURRENT SITUATION AND CHALLENGES
1 INTRODUCTION
2 CHINESE LEGISLATION ON THE MARINE ENVIRONMENTAL PROTECTION
2.1 LAW OF ENVIRONMENTAL PROTECTlON (LEP)
2.2 LAW OF MARINE ENVIRONMENT PROTECTION (LMEP)
3 RELATED ADMINISTRATIVE RULES AND REGULATION CONCERNING THE PROTECTION OF THE MARINE ENVIRONMENT
3.1 ADMINISTRATIVE REGULATIONS ON PREVENTING SHIPS FROM POLLUTING SEA AREAS (ARPSP)
3.2 ADMINISTRATIVE REGULATION OF PREVENTING POLLUTION FROM DISMANTLING AND REPAIR OF SHIPS
3.3 ADMINISTRATIVE REGULATIONS ON ENVIRONMENTAL PROTECTION ON OCEAN OIL EXPLORATION AND EXPLOITATION (REPOE)
3.4 ADMINISTRATIVE REGULATIONS ON DUMPING WASTES AT SEA (RDW)
3.5 ADMINISTRATIVE REGULATIONS ON PREVENTING OCEAN POLLUTION FROM LAND-SOURCE POLLUTANTS
3.6 ADMINISTRATIVE REGULATIONS ON PREVENTING AND CURING OCEAN POLLUTION FROM COASTAL CONSTRUCTION PROJECTS
3.7 IMPLEMENTING RULES ON OCEAN ADMINISTRATIVE PENALTY
4 RELATIONS AND EXISTING PROBLEMS BETWEEN LAWS, ADMINISTRATIVE REGULATIONS AND RULES ON MARINE ENVIRONMENT PROTECTION
4.1 RELATIONS BETWEEN LAWS, ADMINISTRATIVE REGULATIONS AND RULES ON MARINE ENVIRONMENT PROTECTION OF CHINA
4.2 PROBLEMS EXISTING IN LAWS, ADMINISTRATIVE REGULATIONS AND RULES ON MARINE ENVIRONMENT PROTECTION
5 PRELIMINARY CONSIDERATIONS AND METHODS TO SOLVE THE PROBLEM
5.1 PERFECTING THE RELEVANT LEGISlATION
5.2 ORGANIZATIONS AND FORMS
5.3 PROMOTING THE LEGAL EFFECT LEVEL OF THE DEPARTMENT'S REGULATIONS AND RULES
6 CONCLUSIONS
LIST OF REFERENCES
RISK ANALYSIS OF NOXIOUS LIQUID SUBSTANCES TRANSPORTATION BY WATER IN THE YANGTZE DELTA AND THE RESEARCH OF ITS COUNTERMEASURES
1 INTRODUCTION
2 ANALYSIS OF THE RISK IN NLS TRANSPORTATION BY WATER IN THE YANGTZE DELTA
2.1 EXISTING CONDITIONS IN NLS TRANSPORTATION IN THE YANGTZE DELTA
2.2 STATUS OF NLS POLLUTION ACCIDENTS IN THE YANGTZE DELTA
2.3 DEVELOPMENT TREND IN NLS CARRIAGE IN THE YANGTZE DELTA
2.4 RISK ANALYSIS OF POLLUTION ACCIDENT HAZARDS IN THE YANGTZE DELTA
3 COUNTERMEASURES (PREVENTION, SALVAGE AND COMPENSATION)
3.1 MEANS TO CONTROL THE OCCURRENCE OF POLLUTION ACCIDENTS
3.1.1 Control of the Factor of Personnel
3.1.2 Control over the Factor of Vessels
3.1.3 Control over the Factor of Loading and Unloading Terminals (Facilities)
3.1.4 Control over the Factor of Environment for Navigation
3.1.5 Control over the Factor of Administration
3.2 COUNTERMEASURES OF EMERGENCY RESPONSE TO POLLUTION ACCIDENTS
3.2.1 Emergency Plans
3.2.2 Information System for Emergency Response
3.2.3 Guarantee System for Emergency Response
3.2.4 System of Technical Support for Emergency Response
3.3 COMPENSATION REGIME FOR POLLUTION ACCIDENTS
4 CONCLUSIONS
LIST OF REFERENCES
FINANCIAL CAPS FOR OIL POLLUTION DAMAGE: CHINA AND THE INTERNATIONAL CONVENTIONS
1 INTRODUCTION
2 INTERNATIONAL REGIMES
2.1 PRE-1969 REGIME
2.2 1969/1971 REGIME
2.2.1 CLC Convention 1969 & Fund Convention 1971
2.2.1.1 CLC Convention 1969
2.2.1.2 Fund Convention 1971
2.2.2 Voluntary Schemes
2.2.2.1 TOVALOP
2.2.2.2 CRISTAL
2.3 1984/1992 REGIME
2.3.1 1984 Protocols
2.3.2 1992 Protocols
2.3.3 Disappearance of TOVALOP & CRISTAL
2.3.4 Winding up of the 1969/1971 Regime
2.4 THE 2000/2003 REGIME
2.4.1 The 2000 Amendments
2.4.1.1 Background
2.4.1.2 2000 Amendments
2.4.2 2003 Supplementary Fund Protocol
3 CIVIL LIABILITY FOR OIL POLLUTION DAMAGE IN CHINA
3.1 INTERNATIONAL CONVENTIONS EFFECTIVE IN CHINA
3.1.1 CLC Convention
3.1.2 Fund Convention
3.2 DOMESTIC LEGISlATIONS IN CHINA
3.2.1 China Maritime Code
3.2.2 Marine Environment Protection Law
3.3 PRACTICAL ISSUES
3.3.1 Negative Effect on Clean-up
3.3.2 No Compulsory Insurance for Cabotage Tankers & Low Financial Limits under Chinese Law
3.3.3 No Compensation Fund in China
4 ANALYSIS
4.1 INTRODUCTION
4.2 FINANCIAL CAPS ON TORT LIABILITY: AN ECONOMIC PERSPECTIVE
4.2.1 Financial Caps Cause Underdeterrence
4.2.2 Strict Liability versus Negligence
4.2.3 Subsidization Effect
4.2.4 In sum
4.3 FINANCIAL CAPS TO INCREASE INSURABILITY?
4.3.1 Capacity as Insurability Problem
4.3.2 Limitation of the Duty to Insure
4.3.3 Contractual Limitations
4.3.4 Unlimited Liability to Control Moral Hazard
4.3.5 Financial Caps to increase the Insurability of Oil Pollution?
4.4 A DUTY TO SEEK INSURANCE COVERAGE
4.5 CHINA
5 CONCLUDING REMARKS
LIST OF REFERENCES
PART IV: COMPARATIVE CONCLUSIONS
COMPARATIVE CONCLUSIONS
1 INTRODUCTION
2 PREVENTION
3 MONITORING AND SANCTIONS
4 THE INTERNATIONAL COMPENSATION REGIME AND THE NATIONAL APPLICATION
5 COMPENSATING MARINE POLLUTION DAMAGE IN CHINA
6 DAMAGE ASSESSMENT, CLAIMS HANDLING AND INSURANCE
7 RESULTS
8 POLICY
9 LOOK FORWARD
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