Protection of the Marine Environment through the International Ship‐Source Oil Pollution Compensation Regimes

• DOI: http://doi.org/10.1111/1467-9388.00175
• Date: 01 April 1999
• Published date: 01 April 1999

Volume 8 Issue 1 1999 The Oil Pollution Compensation Regimes

Gotthard M. Gauci

Introduction

Vessel-source pollution has been said to be ‘the most

obvious and widely publicised source of marine pol-

lution’.

1

The oil pollution compensation regimes exist

within a regulatory framework which also provides for

controls aimed specif‌ically at the prevention of oil pol-

lution.

MARPOL,

2

the 1973 International Convention for the Pre-

vention of Pollution from Ships, and its 1978 Protocol,

provide a very strong shipping environmental code.

Annex I of MARPOL deals with pollution by oil. One of

its features is that it designates a number of areas as

special areas where oil discharges are either completely

forbidden or very strongly controlled; another is that it

provides for the availability of reception facilities.

A more recent and very important development is the

entry into force of the International Safety Management

Code (ISM Code).

3

The purpose of the Code is to estab-

lish an international standard for the safe management

and operation of ships and for pollution prevention.

4

Amongst other features, the ISM Code provides for the

designation of ‘a person or persons ashore having direct

access to the highest level of management’ whose

‘responsibility and authority should include monitoring

the safety and pollution prevention aspects of the oper-

ation of each ship and ensuring that adequate resources

and shore-based support are applied, as required’. The

implementation of the ISM Code promises to provide a

better degree of control over ships; it could inter alia

have an effect on a shipowner’s right of limitation of liab-

ility.

5

The 1978 International Convention on Standards of

Training, Certif‌ication and Watchkeeping for Seafarers,

Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

29

as amended in 1995,

6

has as a declared objective in its

preamble the desire to ‘promote safety of life and pro-

perty at sea and the protection of the marine environ-

ment by establishing in common agreement inter-

national standards of training, certif‌ication and

watchkeeping for seafarers’; specif‌ic reference is made

in Chapter 5 to special requirements for personnel or

certain types of ships.

7

Other incidental controls include

those contained in the Convention on the International

Regulations for Preventing Collisions at Sea, 1972, and

those effected through the marine insurance require-

ments of controls through classif‌ication societies.

8

It

may be the case that the ever increasing controls have

at least contributed to a decrease in the number and

quantity of oil spills in recent years.

9

When, despite prevention controls, pollution damage

does occur, one necessarily has to look at oil spill

response, a state’s right of intervention and the compen-

sation regimes. In the international sphere, the 1990

International Convention on Oil Pollution Preparedness,

Response and Co-operation (OPRC)

10

plays a very

important role.

11

The international intervention regime

is contained in the International Convention relating to

Intervention on the High Seas in cases of Oil Pollution

Casualties.

12

The international compensation regimes

are dealt with in the 1969 International Convention on

Civil Liability for Oil Pollution Damage (CLC 1969) and

the 1971 International Convention on the Establishment

of an International Fund for Compensation for Oil Pol-

lution Damage (Fund Convention 1971), and the 1992

Protocols to these two Conventions. The 1969 and 1971

Conventions are gradually but steadily fading into the

background as more states become Contracting Parties

to the 1992 Protocols. The compensation regimes were

until recently supplemented by the industry contractual