IMO raises compensation limits for oil pollution disasters

Legal Committee - 82nd session 16-20 October 2000

The Legal Committee of IMO has adopted amendments to raise by 50 percent the limits of compensation payable to victims of pollution by oil from oil tankers.

    The amendments to the 1992 Protocol of the International Convention on Civil Liability for Oil Pollution Damage (CLC Convention) and to the 1992 Protocol of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (IOPC Fund) are expected to enter into force on 1 November 2003, unless objections from one quarter of contracting States are received before then.

    The CLC Convention makes the shipowner strictly liable for damage suffered as a result of a pollution incident and the amendments raise the limits payable to 89.77 million Special Drawing Rights (SDR) (approximately US$115 million) for a ship over 140,000 gross tonnage, up from 59.7 million SDR (US$76.5 million) established in the 1992 Protocol.

    The IOPC Fund amendments raise the maximum amount of compensation payable from the IOPC Fund for a single incident, including the limit established under the CLC amendments, to 203 million SDR (US$260 million), up from 135 million SDR (US$173 million). However, if three States contributing to the Fund receive more than 600 million tonnes of oil per annum, the maximum amount is raised to 300,740,000 SDR (US$386 million), up from 200 million SDR (US$256 million).

    While the Civil Liability Convention regulates the shipowner's liability, the Fund is made up of contributions from oil importers. The principle is that if an accident at sea results in pollution damage which exceeds the compensation available under the Civil Liability Convention, the Fund will be available to pay an additional amount. In this way, the regime established by the two treaties ensures that the burden of compensation is spread more evenly between shipowner and cargo interests.

    The adoption of the increased limits comes in the wake of two major incidents - the Nakhodka in 1997 off Japan and the Erika disaster off the coast of France in December 1999.

Background Notes:

CLC Compensation limits

    The compensation limits set by the 2000 amendments entering into force in 2003 are as follows:

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

  • (Under the 1992 Protocol, the limit was 3 million SDR (US$3.8 million)

  • For a ship 5,000 to 140,000 gross tonnage: liability is limited to 4.51 million SDR (US$5.78 million) plus 631 SDR (US$807) for each additional gross tonne over 5,000

  • (Under the 1992 Protocol, the limit was 3 million SDR (US$3.8 million) plus 420 SDR (US$537.6) for each additional gross tonne)

  • For a ship over 140,000 gross tonnage: liability is limited to 89.77 million SDR (US$115 million)

        (Under the 1992 Protocol, the limit was 59.7 million SDR (US$76.5 million)

The IOPC funds and IMO

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

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

    To become a member of the 1992 Fund, a State must accede to the 1992 Protocols to the Civil Liability Convention and the 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.

    Further information can be found on the IOPC Funds website at www.iopcfund.org

Special Drawing Rights Conversion Rates

    The daily conversion rates for Special Drawing Rights (SDR) can be found on the International Monetary Fund website at www.imf.org under "IMF Finances".

Other Legal Committee issues:

Draft Protocol to the Athens Convention relating to the
Carriage of Passengers and their Luggage by Sea, 1974

    The Committee agreed that a draft protocol to the Athens Convention would be ready for consideration by a diplomatic conference to be convened during the biennium 2002-2003 and decided to recommend to the Council of IMO that allowance be made for a diplomatic conference during the 2002–2003 biennium to adopt the draft protocol.

    Representatives of observer delegations from the shipping and insurance industries were unanimous in their support for this decision, noting the need to adopt the draft protocol as soon as possible, in order to reaffirm IMO’s global role in the development of such conventions and to avoid unilateral action by States leading to the adoption of different regional or national schemes.

    The Athens Convention of 1974 makes a carrier liable for damage or loss suffered by a passenger if an incident causing damage occurs during the course of the carriage and is due to fault or neglect of the carrier. Liability can be limited so long as the carrier did not act recklessly or with intent to cause damage.

    The draft Protocol introduces, among other things, the requirement of compulsory insurance for passenger claims, and proposes changes to the purely fault-based liability system which is a feature of the 1974 Convention.

    A Protocol to the 1974 Convention to raise the limits of liability in the Convention was adopted in 1990, but this Protocol is not yet in force.

Draft convention on wreck removal

    The Committee decided that no recommendation should be made to the Council for the convening of a Diplomatic Conference to adopt the proposed Wreck Removal Convention (WRC) during the next biennium. It agreed instead to devote more time to this agenda item in forthcoming Committee sessions to enable a draft treaty to be ready for consideration by a Diplomatic Conference during the 2004-2005 biennium.

    The WRC is intended to provide international rules on the rights and obligations of States and shipowners in dealing with wrecks and drifting or sunken cargo which may pose a hazard to navigation and/or pose a threat to the marine environment. The draft Convention is intended to clarify rights and obligations regarding the identification, reporting, locating and removal of hazardous wrecks, in particular those found beyond territorial waters.

The draft Convention covers:
   

  •  
reporting and locating ships and wrecks - covering the reporting of casualties to the nearest coastal State; warnings to mariners and coastal States about the wreck; action by the coastal State to locate the ship or wreck).
  •  
determination of hazard - sets out who is responsible for determining whether a hazard exists when the wreck or ship is beyond territorial waters, based on a list of specific criteria, including depth of water above wreck and proximity of shipping routes;
  •  
rights and obligations to remove hazardous ships and wrecks - sets out when the shipowner is responsible for removing the wreck and when a State may intervene;
  •  
financial liability for locating, marking and removing ships and wrecks;
  •  
time-bar - sets a time limit for claims for compensation;
  •  
jurisdictrion - sets out jurisdiction(s) where actions for compensation may be brought;
  •  
financial security - sets out security required to cover liabilities regarding claims for compensation under the Conventions;
  •  
settlement of disputes.

    The Correspondence Group on the draft WRC reported that positive progress had been made on a number of aspects of a scaled-down version of the draft convention. However, there were differing views on some issues, in particular as regards leaving certain matters to be regulated by national legislation. Key issues for future discussion include the need to agree on definitions such as "wreck", "preventive measures" and "hazard"; reporting on wrecks; and financial liability for locating, marking and removing wrecks.

    The work of the Correspondence Group has been suspended pending consideration by the Legal Committee of certain key issues such as financial security.

Implementation of the HNS Convention

    The United Kingdom invited delegations to attend a one-day meeting on 16 March 2001 to review implementation of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (HNS) by Sea 1996.

    The Convention, when it enters into force, will make it possible for compensation to be paid to victims of accidents involving hazardous and noxious substances, such as chemicals.

    The Convention to date has one contracting party (Russian Federation) and will enter into force 18 months after the following conditions have been fulfilled:

  • 12 States have accepted the Convention, four of which have not less than two million units of gross tonnage

  • Provided that persons in these States who would be responsible to pay contributions to the general account have received a total quantity of at least 40 million tonnes of contributing cargo in the preceding calendar year.

    The Committee reviewed work by a Correspondence Group in developing information which might be of assistance to potential claimants and contributors to the HNS Fund. The work includes the development of a guide to enactment of the HNS Convention which would give assistance to States interested in ratifying or acceding to the Convention as well as to potential claimants and to contributors to the HNS Fund, whilst providing outline guidance to relevant industries on how the regime is expected to function.