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Published byMerryl Rodgers Modified over 9 years ago
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INTERTANKO ATHENS TANKER EVENT THE REGULATORY ENVIRONMENT Jonathan Hare Skuld Colin de la Rue Ince & Co April 2005
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OIL POLLUTION FROM TANKERS - COMPENSATION
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INTERNATIONAL CONVENTIONS Civil Liability and Fund Conventions 1992 – 86 states
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INTERNATIONAL CONVENTIONS Civil Liability and Fund Conventions 1992 – 86 states CLC 92 alone – 9 states
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INTERNATIONAL CONVENTIONS Civil Liability and Fund Conventions 1992 – 86 states CLC 92 alone – 9 states CLC 69 – 45 states
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INTERNATIONAL CONVENTIONS Civil Liability and Fund Conventions 1992 – 86 states CLC 92 alone – 9 states CLC 69 – 45 states Total 140 states
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COMPENSATION LIMITS UNDER CLC 92 AND FC 92 Fund limit now 203m SDR (approx US$300m)
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COMPENSATION LIMITS UNDER CLC 92 AND FC 92 Fund limit now 203m SDR (approx US$300m) Owner’s limit - Max limit nearly 90m SDR (approx US$130m) Min limit for small ships
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FC Nov 2003 3m 135m FC CLC Nov 2003 CLC GT 203m 135m 90m 60m Stage One 50% INCREASE IN CONVENTION LIMITS 4.5m 203m SDR
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Stage two - SUPPLEMENTARY FUND Raises total compensation to 750m SDR Optional third tier – only in Protocol states Funded by levies on oil receipts
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REVIEW OF REGIME IOPC Fund Working Group Apportionment of compensation Substandard ships
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REVIEW OF REGIME P&I Clubs & apportionment STOPIA minimum contribution SDR 20 m. in force from 3 March 2005 a binding agreement TOPIA as an alternative
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REVIEW OF REGIME P&I Clubs & substandard ships OECD Report International Group response
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REVIEW OF REGIME Proposals by International Group include: a common checklist to be completed by underwriters harmonised criteria for targeting ships to be surveyed the establishment of a database a double retention for a Club which insures a ship which another Group Club has declined to insure on the grounds of the unfit condition of the ship.
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REVIEW OF REGIME Proposal - IMO Working Group consolidation of surveys improved sharing of information collaboration by all interested parties ” chain of responsibility”
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REVIEW OF REGIME 9th Meeting of IOPC Fund Working Group in March - inconclusive Fund Assembly in October 2005 The danger of fragmentation
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REVIEW OF REGIME “ The success of the current regime has been due in part to a satisfactory balance being struck between political and technical factors, and this balance needs to be kept if the regime is to maintain its widespread appeal.…A marginal decision to proceed with a revision is a recipe for fragmenting the system”
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REVIEW OF REGIME Compensation not punishment DESIRING to adopt uniform international rules and procedures for determining questions of liability and providing adequate compensation in such cases…….
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PREVENTION OF POLLUTION AND CRIMINAL LIABILITY
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PROPOSALS POST-ERIKA and PRESTIGE MARPOL amendments Accelerated phase-out of single hull tankers EU laws Criminal liability
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CRIMINAL LIABILITY MARPOL Operational discharges and accidental pollution
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CRIMINAL LIABILITY Operational Discharges Lack of reception facilities Deliberate discharges permissible within strict controls Distance from land Rate of discharge and degree of dilution Special areas
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CRIMINAL LIABILITY Accidental Discharges Casualties: spills resulting from damage to ship or equipment Other pollution: Accidents in handling cargo or bunkers Leakages (e.g. due to wear and tear)
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CRIMINAL LIABILITY Accidental Discharges P&I Cover: ”the accidental escape or discharge of oil or any other polluting substance”
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CRIMINAL LIABILITY Non-accidental Discharges discretionary cover proviso that the member took all reasonable steps to prevent the infringement giving rise to the fine insurability
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CRIMINAL LIABILITY MARPOL Strict liability for: Operational discharges in breach of controls (even if breach accidental) Accidental spills other than casualties
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CRIMINAL LIABILITY MARPOL No liability for pollution resulting from damage to ship Unless caused by i) lack of response to incident, or ii) deliberate or reckless misconduct
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CRIMINAL LIABILITY EU Directive I llegal discharges Test of serious negligence Relationship with MARPOL effect within and beyond territorial seas
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EU DIRECTIVE Legal and industry concerns Test of liability for accidental spills is subjective and unsuitable
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PRESTIGE Master detained 2 years (83 days in jail)
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PRESTIGE BMA Report No clear cause of damage No evidence of wrongdoing Ship ordered to sea without regard to her condition Treatment of master criticised
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Tasman Spirit
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EU DIRECTIVE Legal and industry concerns Test of liability for accidental spills is subjective and unsuitable contrary to accepted global regime
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THE FUTURE Global or regional laws? Effective in preventing pollution? Balance of political and technical factors?
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