Thesis On Damages And Compensation For Vessel-Source Pollutions

The sea takes an important role for mankind's living and development. Theprotection of marine environment proceeds to be a critical issue in the 21st century. Thevessel transportation is the basis and key support to the continuous growth ofInternational Trading, International Finance and International Economy. Butunfortunately the various vessel-source pollutions are the key pollution source of marineenvironment.Based on all the vessel-source pollution damages and compensation fund relatedInternational Convention,Protocol,revision and International rules, this thesis is aimingat the research at the detailed analysis regarding the civil liability of variousvessel-source pollution damages caused by oil pollution, nuclear pollution, hazardousand noxious substances pollution in the marine environment, also regarding the damagecompensation legal system of the liable party in accordance with the principle of strictliability. The distinctive legislative features and developing trends regarding the civilliability and damages compensation legal system in vessel-source pollutions include ①the Coastal States have the right of interference to the vessel-source pollutions on theHigh Seas, and would not be restricted by traditional Flag States Jurisdiction Principle.② the damage compensation legal system of the liable party in accordance with theprinciple of strict liability.③the legal system regarding the limitation of liability ofmaritime claims for the liable parties.④ Owner of cargos share the liability of oilpollution damage compensation with shipowner.⑤The adoption of implied consentprinciple by IMO since 1972 have shorten the time for International Conventions andAmendments to come into force.⑥Special Drawing Right (SDR) has become the unitof account in computing damage compensation applied in related InternationalConvention.Chapter 6 of this thesis contains conclusion and suggestion to the existing weaknessof international legal system regarding vessel-source pollution damage compensation.The purpose is to construct better internationally unified standards in vessel-sourcepollution damage compensation legal system and for the protection of benefits ofvarious vessel-source pollution suffering parties to obtain timely,reasonable,sufficientcompensation.The abstract of each chapter thereinafter:Chapter 1: Introduction. To protect the environment of the earth is for the mutualwelfare of all mankind. However, the urge on environmental protection has not becomeone of our main concerns until late 1960s.The International Environmental Laws were initiated in the 1970s. 《 TheDeclaration of the United Nations on the Human Environment 》 , namely the《Stockholm Declaration 1972》 was a milestone of such development and a symbol ofInternational Environmental Laws' coming into being. During the following 30 years,such laws have been vigorously developed and constituted. In the area of marineenvironmental protection and preservation, in particular, International Civil liabilityConventions,the International Convention on the establishment of an InternationalFund for Compensation for Oil Pollution Damage,related International Rules have beenimplemented to prevent, reduce, and control of oil pollution, nuclear pollution,hazardous and noxious substances pollution, lethal chemical pollution and wastespollution during this period.In《UNCLOS 1982》, effectuated Nov. 16, 1994, it is indicated that vessel-sourcepollution is one of the six major sources of marine environment pollution, and in whichthe dumping of wastes is constantly made from ships. The vessel-source pollutions arefrom:1) Incidents of collision, reef striking, grounding, fire, and explosion, etc.2) The illegal emission such as deliberate, random, operational emission anddumping during vessel loading and transportation. The pollutant substances from suchsources include fuel oil, oil commodity, nuclear materials, hazardous and noxioussubstances, lethal chemicals, metal, wastes, fuel-containing sewage, etc.The purpose of this thesis: 《Damages and Compensation for Vessel-SourcePollutions》 have close connection with the International Environmental Laws andInternational Rules regarding the preservation and prevention of marine pollutions,while among which relies great reliance on international cooperation. Thus, thesoundness of such legislature is closely-related to the general welfare of mankind, and itrequires vast emphasis as to establish such soundness.The meaningful prospect of this thesis: China is going to show its importancepeacefully with both the great roles of economic and political position worldwideduring 21st century. China creates large scale on both export and import tradingbusiness, which amounts to USD 1160 billion in 2005. China ranks 2nd position of thepetroleum importation worldwide, so the international marine transportation industrywould play an important role in China's economic development. The topic ofcompensation for vessel-source pollution damages not only relate closely to China'seconomic benefit and marine environment,marine resources protection, but also relatesto the mutual welfare of survive and development of mankind. At the stage of bettereconomic strength and national power, it's strongly suggested that China would paymuch attention and effort on the area of Environmental Diplomacy which is animportant topic in 21st century worldwide. China should not only fulfill the obligationof the environment protection related International Conventions, but also China shouldparticipate aggressively the future discussion,engagement,fulfillment of vessel-sourcepollution damage compensation related new International Conventions,Protocols,Revisions which being held by UN or IMO. With this keen attention an participation,China could perform a constructive role on vital international or area environmentprotection issues so that China may obtain both the important positions as great oceaniccountry and great international marine transportation country worldwide in the coming21st century.Chapter 2: Vessel-Source Pollution. This Chapter mainly research on theimportant function of UN specialized organizations: IMO,UNEP,CMI on thelaw-marking of marine safety,marine pollution prevention and vessel-source pollutiondamage compensation related International Conventions,Protocols,Revisions. Amongthe six principles for prevention of marine environment protection which beingmentioned in this Chapter, the principle of precaution is still the key among allprinciples. The adoption of implied consent procedure has shortened the time forinternational conventions and amendments to come into force. It's the creative progressof IMO. This Chapter also includes the research on the jurisdiction of Flag States,Coastal States,Port States separately v.s. vessel source pollutions. The Coastal Statesand Port States have the right of interference to the vessel-source pollution on the HighSeas, and would not be restricted by traditional Flag States Jurisdiction Principle.Another key topics be discussed in this Chapter are : The damage compensation legalsystem of the liable party in accordance with the principle of strict liability and theinternational legislative trend to raise up the limitation amount of the vessel-sourcepollution damages which being specified in related International Conventions throughcontinuous revision.An important issue also emerges as the substance of genuine link between theCountry of Flag of Convenience and the Ship with Flag of Convenience. It needs to bedetermined by ILC,IMO and the transportation enterprises worldwide.Chapter 3: Vessel Oil Pollution, Civil Liability, Compensation. The statistics ofmarine Incidents during 1970 to 2004, shows the seriousness of losses and damages ofpersonal, property, marine environment being caused by vessel-source oil pollutionIncidents. The 2nd paragraph is the key part of this Chapter which introduce completelythe follows: In order to prevent, reduce and control the vessel oil pollutions, under thescheming of IMO and UNEP, International Conventions are constituted over the issuesof marine environment protection, prevention of vessel oil pollution , internationalconvention of limitation of compensation, civil liability of shipowner in oil pollution,damages and imputation, international fund for compensation, etc. Furthermore, theprinciple of implied consent is adopted in protocols and amendments to establish thepollutant party's responsibility to damages. And cargo owner shares responsibility withshipowner through fund of compensation. Under strict liability, limitation ofcompensation liability would enable the balance between awarding sufficientcompensation to the suffering party and the reasonable risk-bearing of liable party, andthus avoid jeopardizing the vessel transportation industries worldwide.Chapter 4: Pollution by substances other than Oil;Civil Liability, Imputation,Damages, Compensation. The pollution by substances other than oil includes: nuclearpollution, hazardous and noxious substances pollution, lethal chemical pollution, wastesor sewage pollution etc. Among all, nuclear pollution, hazardous and noxioussubstances pollution and lethal chemical pollution bear the characteristics of imminentdanger, broad damage scope, lasting influence, and its suffering party tends to lack theprofessional knowledge to such pollution and danger. Therefore, vessels with shipmentof this sort should obtain certificates from international organizations and follow theexisting ordinances. The international obligations should be fulfilled and detailedinformation should be offered to countries en route. Efforts should be made to avoidentering the territorial seas of Coastal States.Chapter 5: Intervention of Vessel-Source Pollution in High Seas.The 1967 oil pollution incident of Torrey Canyon in the High Seas is the firstlarge-scale oil pollution event in the High Seas. And, The Torrey Canyon incident raisesconcerns from European countries and the U.S. On Nov. 29, 1969, a meeting in Brusselsassembled by IMCO contributed to the birth of the 《International Convention Relatingto Intervention on the High Seas in Case of Oil Pollution Casualties, Brussels, 1969》,and granted the Costal States and Port States' rights to adopt preventing, reducing andcontrolling measures while its territorial sea and related economic benefits beingseverely threatened by the oil pollution in the High Seas nearby. There would be noliability when such measure satisfies the principle of proportionality.IMCO concerns the existing phenomenon of increasing shipment of nuclear,hazardous and noxious substances, lethal chemical products and the severity of possibledamage, hence on Nov. 2, 1973, the《Protocol of 1973 Relating to Intervention on theHigh Seas in Case of Marine Pollution by Substances other than Oil, London, 1973》was constituted, and effectuated March 30, 1983. Two subsequent amendmentsfollowed to modify the list of "substances other than oil" in the protocol on July 4, 1991and July, 15, 1996.Chapter 6: Conclusion. For the purpose of establishing a better unifiedinternational compensation system of vessel-source pollution damages, some creativeconclusions and suggestions are proposed as follows to enable the suffering party mayobtain timely,reasonable,sufficient protection on vessel-source pollution damages.1. The principle of precaution obligation should be firstly emphasized in theinternational society, as to prevent, reduce, and control various pollutions caused byvessels.2. Expansion the scope of vessel-source pollution compensation should become thetrend in related International Civil Conventions to include the loss of decreasing onincome or profit by environment pollution damages.3. Issues regarding extension of the limitation of prosecution period againstvessel-source pollutions.《International Convention on Liability and Compensation for Damage inconnection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 》provides the limitation of prosecution within 3 years of suffering party's awareness ofdamage or capable of awareness of relating parties. Due to common people's lack inknowledge of hazardous and noxious substances, and uneasy of finding its impactwithin a short period of time, and the probable lifetime impact, it is proposed in thisthesis that a reasonable extension of limitation should be imposed such as 10years or 20years, as in the《Protocol of 1997 for the Vienna Convention on Civil Liability forNuclear Damage, 1963 》.It is both regulated in the 《International Convention relating to the Limitation ofthe Liability of Owners of Sea-going Ships, 1957 》 and the 《Convention onLimitation of Liability for Maritime Claims, 1976》, that the limitation of prosecutionperiod should be in compliance with domestic laws where the lawsuit takes place. It isproposed in this thesis to revise the limitation of prosecution period same as the existingconventions of the various vessel-source pollution damages separately. 《InternationalConvention on Civil Liability for Oil Pollution Damage, Brussels, 1969》 regulates thatif the hazardous and noxious substances pollution incident is constituted by series ofoccurrences, then the 6 years prosecution period as defined in article VIII of thisconvention, should be calculated from the date of the "first" pollution occurrencehappened. The suggestion is that this 6 years period should be calculated from the dateof the "last" pollution occurrence happened.4. Ship Detaining and method of finalizing jurisdiction Court. To apply thedomestic law of the country where the sufferer intent to detain the ship, and request thedetaining against pollutant vessel before raising the claim, is a practically effective andefficient means in international marine legal affair to ensure the vessel-detaining courts'jurisdiction and protect the suffering party.5. To protect the order of marine transportation market, it's needed to convinceU.S.A. through the efforts of IMO to join the related International Convention instead of《OPA 90》, and to maintain a reasonable compensation system with the unifiedinternational standard.6. Pollution problems in the ship demolishing industry in the 21st century. It isimplemented in the 1992 amendment to the "MARPOL 73/78" that new oil tankerexceeding 600 tonnages must be equipped with double shell ships. And according to《OPA 90》, vessels transporting to all U.S. ports must be equipped with double shellson/after the year of 2015. IMO already announced a new order on Apr. 2003 tosubstitute all single shell ships before the year of 2010. Therefore, it is proposed in thisthesis that an international cooperation regarding the transfer of updated andpollution-saving professional ship demolishing technology from well-developedcountries to developing countries is quite needed, so that the ability of developingcountries in preventing,decreasing,controlling the pollution when demolishing thevessels can be upgraded. The international society should be aware of such pollutionscenario be happened in developing countries for demolishing vessels in the years after2015.7. Substance of genuine link between the Country of Flag of Convenience and theShip with Flag of Convenience needs to be determined.8. Efforts should be contributed worldwide to green chemistry to rid the risks ofhazardous and noxious substances pollution and lethal chemical pollution during marinetransportation. Green chemistry is regarded as a new research field of harmlesschemical composing and chemical engineering in the 21st century. The research resultand its application would benefit all mankind worldwide with health, life and rid of thepollution to the environment of the earth, and furthermore, may prevent the hazardousand noxious substances, lethal chemical products from polluting the sea during thevessel transportation.9. The focus of IMO should be turning to enforcing and compliance of ContractingStates with the existing laws as a more efficient way to protect voyage safety, marineenvironment and prevent pollution. To fulfill the obligation of Contracting States ofevery environment related International Conventions are much more concerned andemphasized worldwide.10. Propose to set up a worldwide marine monitoring and information center.Through international cooperation, monitoring system such as frontier electrontechnology and communication satellites can be equipped in both Coastal Statesshorelines and frequently used waterways in High Seas. These facilities are used to wellmonitor and manage all vessels to achieve safety of vessels and marine environmentprotection. Once if the marine incident should happen, a quick action can be takeneffectively to save the vessel and take necessary measure to reduce, control the variousvessel-source pollutions. Also, the vessels which cause the pollution to certain sea areacan be traced accordingly.11. The pollution from dumping to the sea should be prevented, reduced andcontrolled. Related domestic legislation and enforcement should be invoked. Withouteffective local laws, the international conventions and protocols would be in vain, andthe global peril of sea dumping would be severely deteriorated.12. Propose to set up an international system for charging penalty on variousvessel-source pollutions being caused by violation of the marine transportation safety,related International Laws or by the neglect or actual fault of captain or crews. Thepenalty system could effectively decrease and terminate the marine environmentpollutions caused by vessels.