Civil Liability for Vessel-Source Pollution

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 932-958

932

CHA PTER 21

CIVIL LIABILITYFOR

VESSEL‑SOURCE

POLLUTION

A. INTRODUCT ION

Prior to the development of an international liability and compensation

regime for vessel-source pollution, civil liability was generally limited

to amounts based on the vessel’s tonnage.1 Application of the traditional

system of tort recovery supplemented by various local rules and ad hoc

national regimes was entirely unsatisfactory. The shortcomings in the

situation were brought to light by seminal events such as the grounding

of the Torrey Canyon2 off the southwest coast of the United Kingdom

1 See Chapter 22 for discussion on the evolution of the international legal regime

for limitation of liability for maritime claims in general.

2 The Torrey Canyon can rightly be regarded as a cornerstone in global thinking

about the marine environment. Subsequent international discussions led to

the adoption of several conventions including International Convention on Civil

Liability for Oil Pollution Damage, 29 November 1969, 973 UNTS 3 [CLC 1969];

International Convention on the Establishment of an International Fund for Compen-

sation for Oil Pollution Damage, 18 December 1971, 1110 UNTS 57 [1971 Fund

Convention]; International Convention Relating to Intervention on the High Seas in

Cases of Oil Pollution Casualties, 29 November 1969, 970 UNTS 211, Convention

on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 29

December 1972, 1046 UNTS 120, and International Convention for the Prevention

of Pollution from Ships, 1973, 2 November 1973, 1340 UNTS 184 as amended

by Protocol of 1978 Relating to the International Convention for the Prevention of

Pollution from Ships of 1973, 17 February 1978, 1340 UNTS 61 [MARPOL]. MAR-

POL has been amended extensively since adoption; citations in this chapter to

Civil Liabi lity for Vessel-Source Pollution 933

in 1967. In Canada, the grounding of the Arrow in February 1970 in

Chedabucto Bay, Nova Scotia, was followed by the sinking of the oil

barge Irving Whale off the north coast of Prince Edward Island in Sep-

tember 1970, further heightening the public concern with respect to oil

pollution compensation.

Following the Torrey Canyon disaster, coastal states began to seek

clarif‌ication of their rights to impose liability and compensation for pol-

lution by foreign-registered ships at the Inter-Governmental Maritime

Consultative Organization (IMCO) (now the International Maritime Orga-

nization or IMO). Discussions began towards adoption of two conven-

tions, a civil liability regime for oil tankers and a fund for oil pollution

liability,3 in order to provide an internationally unif‌ied response. In the

interim, tanker owners, in large part reacting to the public outcry, de-

veloped a voluntary oil spill compensation regime, TOVALOP (Tanker

Owners Voluntary Agreement concerning Liability for Oil Pollution).

Cargo interests developed their own compensation regime in order to

supplement TOVALOP, namely CRISTAL (Contract Regarding an Inter-

im Supplement to Tanker Liability for Oil Pollution). TOVALOP and

CRISTAL were designed to provide compensation pending the anticipat-

ed conclusion and implementation of the two conventions by IMCO.4

In 1975, the International Convention on Civil Liability for Oil Pollution

Damage, 1969 entered into force, which was followed in 1978 by the

1971 International Convention on the Establishment of an International

Fund for Compensation for Oil Pollution Damage.

The CLC 1969 and the 1971 Fund Convention were designed to deal

with oil carried in bulk. Compensation for bunker spills from non-tank-

ers continued to be regulated in accordance with local laws. In 2001, the

International Convention on Civil Liability for Bunker Oil Pollution Dam-

age was adopted.5 Both the CLC 1969 and 1971 Fund Convention were

subsequently modif‌ied to increase the limit of recoverable damage and

were then superseded by the CLC Protocol of 19926 and the Fund Protocol

MARPOL are to the consolidated text of the convention, including any protocols

(unless specif‌ically noted otherwise) and all amendments in effect.

3 CLC 1969 and 1971 Fund Convention, both above note 2.

4 Susan Bloodworth, “Death on the High Seas: The Demise of TOVALOP and CRIS-

TAL” (1998) 13 Journal of Land Use & Environmental Law 443.

5 International Convention on Liability for Bunker Oil Pollution Damage, 23 March

2001, Can TS 2010 No 3 [Bunkers Convention].

6 Protocol to Amend the 1969 International Convention on Civil Liability for Oil Pollu-

tion Damage, 27 November 1992, 1956 UNTS 255 [CLC 1992]. Citations in this

chapter to CLC 1992 are to the consolidated text of the convention, including any

protocols and all amendments in effect.