Civil Liability for Marine Oil Pollution Damage

Name: Civil Liability for Marine Oil Pollution Damage | A Comparative and Economic Study of the International, US and Chinese Compensation Regime
Brand: Kluwer Law International
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A Comparative and Economic Study of the International, US and Chinese Compensation Regime

Wang Hui(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 15. September 2011

397 Seiten

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Beschreibung

This remarkable book - the first in-depth examination of the civil liability regime for marine oil pollution damage from a law and economics perspective - examines the efficiency and effectiveness of the regime, with particular attention to whether it is in fact designed in the public interest or merely a distribution of risks and costs among interested parties. The question is asked: does the liability system give the potential polluter incentives to take precautionary measures to avoid pollution or to reduce the possibility of pollution? The international regime on civil liability for marine oil pollution rests on the International Convention on Civil Liability for Oil Pollution Damage (CLC) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention). However, the world's biggest oil consumer and importer - the United States - has ratified neither, preferring its own Oil Pollution Act of 1990 (OPA), and China - currently the world's second oil-consuming country - has not ratified the Fund Convention. Thus it is reasonable to compare the three regimes - international, US, and China - as such a comparative study may reveal some advantages or disadvantages among the three systems. Among the issues raised and tackled head-on by the author are the following: whether the contents of international conventions can be considered as the result of the influence of the various interest groups involve; overview of the regulations of marine pollution; technical standards, rules for operation, professional criteria; to what extent a state may take action against trans-boundary polluting activities; what liability a state may incur for non-action or non-effective action; significance for liability of the charter-party, generally considered the evidence of the hire of a ship, and the bill of lading, considered the evidence of the contract of carriage of goods by sea; the crucial role of the so-called 'International Group' of 13 Protection and Indemnity (P & I) Clubs, non-profit organizations specializing in liability insurance; the main international players - the International Maritime Organization (IMO), the Comité Maritime International (CMI), and industry organizations such as INTERTANKO and the Oil Companies International Marine Forum (OCIMF); the particular regime on offshore facility pollution liability in the United States; port state control; criminal liability; and EU and other regional initiatives. In addition, a detailed study of the Erika case reveals some of the rationale for many of the persistent features of marine pollution liability regimes. The well-thought-out legal and economic analysis provided in this book, along with its clearly stated policy recommendations and constructive perspectives for future development of the liability system, will be immeasurably valuable to lawyers and policymakers active in this highly visible area of international law.

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Inhalt

Intro
Title Page
Copyright Page
About the Authors
Table of Contents
List of Abbreviations
List of Tables
Chapter 1
Introduction
1 Reasons for Research
2 Problem Definition
3 Limits of the Research
4 Methodology
5 Special Terms in Maritime Law
5.1 Parties Involved in Shipping
5.2 Charterparty and Bill of Lading
5.3 Insurance
6 Main Players at International Legislative Level
6.1 The IMO and Its Legal Committee
6.2 The CMI
6.3 Industry Organizations
7 Structure of the Book
Chapter 2
Legal Framework for Vessel Source Marine Pollution
1 Overview of the Legal Framework
1.1 General Framework
1.2 Historical Development
2 Port State Control
2.1 Introduction
2.2 Flag State Jurisdiction
2.2.1 Prescriptive Jurisdiction
2.2.2 Enforcement Jurisdiction
2.2.3 Flag of Convenience
2.2.4 Evaluation
2.3 Coastal State Jurisdiction
2.3.1 Overview
2.3.2 Internal Waters and Ports
2.3.3 Territorial Sea
2.3.4 EEZ
2.3.5 High Seas
2.3.6 Evaluation
2.4 Port State Jurisdiction
2.4.1 UNCLOS Provision
2.4.2 MOUs
2.4.3 Evaluation
2.4.4 Summary
3 Legal Regimes Concerning Prevention and Response
3.1 MARPOL 73/78
3.2 SOLAS Convention
3.3 STCW Convention
3.4 OPRC Convention
4 Legal Regime on Civil Liability and Compensation
4.1 CLC/Fund Convention
4.2 HNS Convention
4.3 Bunker Convention
5 Legal Regime Concerning Criminal Liability
5.1 General Overview
5.2 EU Actions
5.2.1 Background
5.2.2 Community Law on Criminal Liability for Marine Oil Pollution
5.2.3 Directive 2005/35/EC v. MARPOL Annex I
5.3 US Actions
6 Regional Initiatives
6.1 Role of Regional Initiatives
6.2 EU
6.2.1 Overview of the EU Approach
6.2.2 Examples of EU Measures and Its Impact on the International Regime
6.3 The US
7 Concluding Remarks
Chapter 3
Introduction of the International Regime
1 Background
1.1 Torrey Canyon Incident
1.2 TOVALOP
1.2.1 Coming into Being
1.2.2 Influence of TOVALOP
1.3 CLC
1.4 CRISTAL
1.4.1 Coming into Being
1.4.2 Influence of CRISTAL
1.5 Fund Convention
1.6 Evaluation
2 The Civil Liability Convention 1969
2.1 Introduction
2.1.1 Pre-1969 Situation
2.1.2 Preparatory Work by CMI
2.1.3 Convening of the Conference
2.2 Principle of Strict Liability
2.2.1 General Overview
2.2.2 Main Arguments for Different Schemes
2.2.2.1 Strict Liability on the Cargo
2.2.2.2 Strict Liability on the Ship
2.2.2.3 Fault Liability on the Shipowner
2.2.2.4 Joint Liability
2.2.3 Decision on Strict Liability of the Shipowner
2.2.3.1 First Round Vote
2.2.3.2 Second Round Vote
2.2.3.3 Final Vote
2.2.4 Compromise Decision
2.2.5 Evaluation
2.3 The Principle of Limitation of Liability
2.3.1 Limitation of Liability in Maritime Law
2.3.2 The Debate on the Limitation of Liability at the 1969 Conference
2.3.2.1 General Debate on the Principle of Limitation of Liability
2.3.2.2 The Amount of Limitation of Liability
2.3.3 Evaluation
2.4 Principle of Channelling of Liability
2.4.1 Channelling in the Nuclear Industry
2.4.2 Channelling in Case of Oil Pollution
2.4.2.1 CMI Draft
2.4.2.2 Debate at the 1969 Conference
2.4.3 Evaluation
2.5 Principle of Compulsory Insurance
2.5.1 General Debate on the Necessity of Compulsory Insurance
2.5.2 The Direct Action against the Insurer
2.5.3 Minimum Tonnage Requirement for Tankers to Take Insurance Cover
2.5.4 Sanctions
2.5.5 Evaluation
2.6 Concluding Remarks
3 Fund Convention
3.1 Introduction
3.2 Scope of Compensation
3.2.1 Geographical Scope of Application
3.2.2 Preventive Measures
3.3 When the Fund Intervenes
3.4 Exoneration of the Fund
3.4.1 General Debates on the Exemptions of the Fund
3.4.2 Act of War, Natural Phenomenon an Unidentified Source of Pollution
3.4.2.1 Act of War
3.4.2.2 Natural Phenomenon
3.4.2.3 Unidentified Source of Pollution
3.4.2.4 Government's Fault or Negligence
3.5 Amount of Compensation
3.5.1 Discussion on Compensation Amount and Amendment Procedure
3.5.2 Evaluation
3.6 Relief of the Shipowner
3.6.1 Relief as a Principle
3.6.2 Relief Conditional on Safety Standards
3.6.3 Amount of Relief
3.6.4 Evaluation
3.7 State Responsibility
3.8 Contribution to the Fund
3.8.1 Debate on the Minimum Amount and Calculation of Contribution
3.8.2 Evaluation
3.9 Concluding Remarks
4 Comparison between the Voluntary and International Regime
4.1 TOVALOP v. CLC 1969
4.2 CRISTAL v. Fund Convention 1971
4.3 Evaluation
5 Concluding Remarks
Chapter 4
Evolution of the International Regime
1 Introduction
2 The 1984 Protocols
2.1 Main Reasons for Revision and Critiques
2.1.1 Historical Background
2.1.2 Amoco Cadiz Incident
2.2 Increased Compensation
2.2.1 General Arguments for Increasing Compensation
2.2.2 Specific Amount
2.2.2.1 Increase of the Amount
2.2.2.2 Evaluation
2.2.3 Amendment Procedure
2.2.4 Loss of Limitation Right
2.2.4.1 Background
2.2.4.2 Revision
2.2.4.3 Evaluation
2.3 Channelling of Liability
2.3.1 Amoco Cadiz Judgment
2.3.2 Revision of Channelling
2.3.3 Evaluation
2.4 Extension of Scope of Application
2.4.1 Incident and Preventive Measures
2.4.1.1 Incident
2.4.1.2 Special Treatment for Preventive Measures
2.4.1.3 Evaluation
2.4.2 Definition of Pollution Damage
2.4.2.1 Debate on the New Definition
2.4.2.2 Assessment of the New Definition
2.5 Relief to the Shipowner (Roll-Back or Indemnification Function)
2.5.1 Deletion of the Fund's Secondary Function
2.5.2 Role of the State
2.5.3 Evaluation
2.6 Influence of the 1984 Protocols
2.7 Failures of the 1984 Protocols
3 The 1992 Conventions
3.1 Adoption of the 1992 Conventions
3.2 Evaluation
4 Disappearance of the Voluntary Agreements
4.1 Interaction with the International Conventions
4.1.1 General Overview
4.1.2 Amendments of the Voluntary Agreements
4.2 Disappearance of TOVALOP and CRISTAL
5 Winding Up of the 1971 Fund
5.1 1969/1971 Regime v. 1992 Regime
5.2 Current Situation of the Two CLC
5.3 Winding Up of the 1971 Fund
6 The 2000 Resolutions
7 2003 Supplementary Fund Protocol and Further Study
7.1 Background
7.1.1 Erika II Proposals
7.1.1.1 Limitation of Liability
7.1.1.2 Definition of Pollution Damage
7.1.1.3 Responsibilities and Liabilities
7.1.1.4 Prestige Incident and EU Activism
7.2 IMO Reaction and the Adoption of the 2003 Supplementary Fund
7.2.1 Adoption of the 2003 Supplementary Fund Protocol
7.2.2 EU Reaction
7.2.3 Evaluation of the Supplementary Fund
7.3 Industry Reaction: STOPIA and TOPIA
8 Concluding Remarks
Chapter 5
US Regime on Civil Liability for Marine Oil Pollution
1 Introduction
2 Legislative History of US Laws on Oil Pollution
2.1 Prior to 1967
2.1.1 The Oil Pollution Act 1924
2.1.2 Federal Water Pollution Control Act of 1948
2.1.3 The Clean Water Restoration Act of 1966
2.2 Torrey Canyon: Mid-1970s
2.2.1 Actions of the US Government
2.2.2 Domestic Legislative Actions: Water Quality Improvement Act of 1970
2.2.3 Actions at International Level
2.3 Mid-1970s: Prior to Exxon Valdez (1989)
2.3.1 Legislative History
2.3.2 Major Domestic Legislations
2.3.3 Activity at the 1984 Diplomatic Conference
2.4 Enactment of OPA
2.4.1 Exxon Valdez Incident
2.4.2 Reaction of the US Congress
2.4.3 Main Debates
2.4.3.1 Ratification of 1984 Protocols
2.4.3.2 Preemption of State Laws
2.4.4 Reaching Agreement and Adoption of OPA
2.5 Evaluation of the Legal History
3 Main Provisions of OPA
3.1 Nature of Liability
3.1.1 Responsible Parties
3.1.2 Strict Liability
3.1.3 Exoneration from Liability
3.1.4 Implication
3.2 Scope of Damages Covered
3.3 Limitation of Liability
3.3.1 Provision in OPA
3.3.1.1 Amount of Limitation
3.3.1.2 Loss of Limitation Right
3.3.2 Evaluation
3.4 Financial Responsibility
3.4.1 General Requirement
3.4.2 Implications for the Industry
3.5 The Oil Pollution Liability Trust Fund
3.5.1 Establishment of the OSLTF
3.5.2 Coverage of the OSLTF
3.5.3 Financing of the OSLTF
3.5.4 Amount of the OSLTF
3.5.5 Implications
3.5.6 Impact of OPA 90
4 Recent Changes
4.1 Post-OPA Developments
4.2 Increase of OSLTF
4.3 Increase of Liability Limits
4.4 Evaluation
5 Concluding Remarks
Chapter 6
Chinese Marine Oil Pollution Compensation Regime
1 Introduction
2 Relevant Legislation in China
2.1 Domestic Legislation
2.1.1 General Rules
2.1.2 Marine Environmental Protection Law
2.1.3 China Maritime Code
2.1.4 General Principles of the Civil Law
2.1.5 Regulations
2.1.6 Maritime Courts
2.2 International Conventions Ratified by China
2.2.1 CLC
2.2.2 Fund Convention
2.2.3 Application of International Conventions in China
2.3 Evaluation
3 Existing Problems
3.1 Conflicts of Law in China
3.2 Compulsory Insurance
3.3 Limitation of Liability
3.4 No Compensation Fund in China
3.5 Summary
4 Research Carried Out by the Chinese Government
4.1 Research on the Chinese Compensation Mechanism
4.2 Collection and Management of the Domestic Fund
5 Concluding Remarks
Chapter 7
Comparative Analysis
1 Introduction
2 Basis of Liability
2.1 General Comparison
2.2 Liable Parties
2.2.1 Definition of Liable Parties
2.2.2 Channelling in the CLC
2.3 Different Positions of Some Major Players
2.3.1 Summary
2.3.2 Servants or Agents of the Owner
2.3.3 Pilots
2.3.4 Bareboat Charterer
2.3.5 Time Charterer and Voyage Charterer
2.3.6 Manager and Operator
2.3.7 Salvors
2.4 Comparative Negligence
2.5 Defences to Liability
2.6 Tanker Ownership
3 Limitation of Liability
3.1 Amount of Limitation
3.2 Loss of the Limitation Right
3.2.1 CLC Provision
3.2.2 OPA Provision
3.3 Evaluation
3.4 Debate on Limitation of Liability in Maritime Law
3.4.1 Legal Justifications
3.4.2 Critiques
3.4.3 Further Exploration
4 Compensable Damages
4.1 Pollution Damage
4.1.1 CLC Definition
4.1.2 The OPA Definition
4.1.3 Comparison
4.2 Preventive Measures
4.2.1 Comparison between CLC and OPA Definitions
4.2.2 Salvage Operations
4.3 Pure Economic Loss
4.3.1 International Regime
4.3.2 The US Regime
4.3.3 Comparative Analysis
4.4 Environmental Damage
4.4.1 CLC Provision
4.4.2 Natural Resource Damage Defined in OPA
4.4.3 Comparative Analysis
4.5 Evaluation
5 Compulsory Insurance
5.1 General Requirement of Compulsory Insurance
5.2 Forms of Financial Guarantee
5.3 Sanctions
5.4 Summary
6 Compensation Fund
6.1 Change from 1971 Fund to 1992 Fund
6.1.1 Deletion of Roll-Back Function
6.1.2 Contribution to the Fund
6.1.3 Influence of the Change
6.2 Amount of Compensation
6.2.1 IOPC Fund
6.2.2 OSLTF
6.3 Coverage
6.3.1 IOPC Fund
6.3.2 OSLTF
6.4 Financing of the fund
6.4.1 IOPC Fund
6.4.2 OSLTF
6.5 Operation of the Fund (As First Resort or Only Residual)
6.5.1 IOPC Fund
6.5.2 OSLTF
7 Concluding Remarks
Chapter 8
Economic Analysis
1 Introduction
2 Theoretical Framework
2.1 Coase Theorem
2.2 Prohibitive Transaction Costs
2.2.1 Concept of Transaction Costs
2.2.2 Relevance to the Coase Theorem
3 Economic Analysis of the Liability System
3.1 Economic Theory of the Liability System
3.1.1 Basic Theory
3.1.2 Activity Level
3.1.3 Unilateral v. Bilateral Accident
3.1.3.1 Unilateral Accident
3.1.3.2 Bilateral Accident
3.1.4 Test for Strict Liability
3.1.5 Legal Justification for Strict Liability: Improving the Situation of the Victim?
3.2 Application to the Marine Oil Pollution Compensation Regime
3.2.1 Theoretical Framework
3.2.2 Analysis of the CLC
3.2.3 OPA and China
3.4 Insolvency Problem
4 Economic Analysis of Financial Caps
4.1 Theoretical Framework
4.1.1 Contract Situation
4.1.2 Third-Party Losses
4.1.2.1 Unilateral Accident
4.1.2.2 Bilateral Accident
4.2 Application to Oil Pollution
4.2.1 Analysis of Financial Caps
4.2.1.1 Under-compensation
4.2.1.2 Underdeterrence
4.2.1.3 Subsidy
4.2.2 Analysis of Unlimited Liability
4.2.3 Financial Caps in the CLC
4.2.4 Analysis of the US Regime
4.2.5 Analysis of Chinese Law
5 Economic Analysis of Channelling
5.1 Theoretical Framework
5.1.1 Channelling
5.1.2 Joint and Several Liability
5.2 Application to Oil Pollution
5.2.1 Analysis of the Channelling in the CLC and Chinese Law
5.3 Comparative Analysis
5.4 Lender Liability
5.4.1 Economic Theory
5.4.2 Application of Oil Pollution Compensation Regime
6 Economic Analysis of the Compulsory Insurance
6.1 Economic Theory of Insurance
6.1.1 General Principles and the Insurance Capacity
6.1.2 Problems with Insurance
6.1.2.1 Moral Hazard
6.1.2.2 Adverse Selection
6.2 Application to Oil Pollution
6.2.1 Theoretical Framework
6.2.2 Application to the Marine Oil Pollution Regime
6.2.3 Economic Analysis of P&I Clubs
7 Economic Analysis of Compensation Fund
7.1 Theoretical Framework
7.2 Application to Oil Pollution
7.2.1 IOPC Fund
7.2.2 OSLTF
7.2.3 China
7.3 Suggestions from Literature
8 Economic Analysis of Regulation
8.1 Economic Theory on Regulation
8.2 Application to Oil Pollution
9 Concluding Remarks
Chapter 9
Law and Practice: Marine Pollution in Motion
1 Introduction
2 The US Regime on Offshore Oil Spill
2.1 Deepwater Horizon Incident
2.2 The US Legal Regime on Offshore Facility Liability
2.2.1 Strict Liability
2.2.2 Limited Liability
2.2.3 Financial Responsibility
2.2.4 Compensation Fund
2.3 Comparison between Vessel Source and Offshore Facility Regimes
2.4 Economic Analysis of Offshore Facility Liability Regime
2.4.1 Economic Analysis of the Strict Liability
2.4.2 Economic Analysis of Limited Liability
2.4.3 Economic Analysis of Financial Guarantee
2.4.4 Economic Analysis of Compensation Fund
2.5 Concluding Remarks
3 Case Study: Erika
Chapter 10
Conclusions and Policy Recommendations
1 Legal History
1.1 'Shifts' in the Development
1.2 Historical Reasons for 'Shifts'
1.3 Observations from Legal History
2 Comparative Analysis
3 Economic Analysis
3.1 Analysis of the International, the US and the Chinese Regime
3.2 Economic Rationale for the Historical Development
3.3 Regulation v. Liability
3.4 Statistics
4 Policy Recommendations
4.1 Normative Conclusions
4.2 International
4.3 The US
4.4 China
5 Concluding Remarks and Outlook
Table of Cases
Table of Legislations
Bibliography
Index

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