Willem Oosterveen
Transcript of Willem Oosterveen
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THE INTERNATIONAL REGIME ON LIABILITY ANDCOMPENSATION FOR OIL POLLUTION DAMAGE
A GLOBAL REGIME WITH REGIONAL AND LOCAL IMPACTRECENT DEVELOPMENTS; NEW CASES
Willem OosterveenInternational Oil Pollution Compensation Funds
SpillCon 2007Perth, Australia
26-30 March 2007
Copyright and all possible other relevant rights remain with the IOPC Fund
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Old regime:
1969 Civil Liability Convention/1971 Fund Convention
1971 Fund
New regime:
1992 Civil Liability Convention/1992 Fund Convention
1992 Fund
2003 Supplementary Fund Protocol
Supplementary Fund
COMPENSATION REGIMES
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1992 CIVIL LIABILITY CONVENTION
114 States Parties
1992 FUND CONVENTION
99 States Parties
2003 PROTOCOL TO 1992 FUND CONVENTION
20 States Parties
1971 Fund Convention ceased to be in force on24 May 2002
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1992 Civil Liability1992 Civil Liability
ConventionConvention
Supplementary FundSupplementary FundProtocolProtocol
THE THREE TIER SYSTEM
1992 Fund1992 FundConventionConvention
Shipowners Insurers
Oil receiversafter seatransport
Oil receiversafter seatransport
1992Fund
SupplementaryFund
THIRD
TIER
SECOND
TIER
FIRST
TIER
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1992 CONVENTIONS APPLY TO:
Pollution damage
Spills of persistent oil from tankers
Territory, territorial waters and EEZ orequivalent
Preventive measures
Bunker spills from unladen tankers
Mystery spills from a tanker
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1ST TIER1992 CIVIL LIABILITY CONVENTION
Strict liability of registered shipowner
Limitation of liability
Shipowners may lose right of limitation
Compulsory insurance
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SHIPOWNER EXEMPT WHEN INCIDENTRESULTED FROM
Act of war or a grave natural disaster
Sabotage by a third party
Negligence of public authorities in
maintaining navigational aids
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2ND TIERFUND CONVENTION APPLIES WHEN
Shipowner exempt
Shipowner financially incapable of meetingobligations
Damage exceeds the shipowners liability
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2ND TIERFUND CONVENTION DOES NOT APPLY
Damage in non-Member State
Damage caused by an act of war or spillfrom warship
Claimant cannot prove oil originated from
a ship as defined in the Conventions
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MAXIMUM AMOUNT OF COMPENSATION
1992 CLC/Fund Conventions
135 million SDR (US$ 201 million)
203 million SDR (US$ 301 million)
2003 Supplementary Fund
750 million SDR (US$ 1 114 million)
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0
200
400
600
800
1,000
1,200
0 20 40 60 80 100 120 140 160
Units of tonnage of ship (1 000 units)
$(millions)
1992 CLC 1992 Fund Supplementary Fund
LIMITS LAID DOWN IN THE CONVENTIONS
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1992 FUND: GENERAL FUNDCONTRIBUTIONS 2006
Republic of
Korea 8%
Netherlands 9%
Italy 9%
Japan 17%
India 7%
France 7%
Others 32%
Spain 4%
Singapore 5%
United Kingdom
5% Canada 5%
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TheHaven incident, Italy, 1991
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SOME MAJOR SPILLS INVOLVING THEFUNDS
Antonio Gramsci(Sweden) 1979 US$ 18 mill
Tanio (France) 1980 US$ 36 mill
Haven (Italy) 1991 US$ 58 mill
Aegean Sea (Spain) 1992 US$ 65 mill
Braer(United Kingdom) 1993 US$ 87 mill
Keumdong No 5 (Republic of Korea) 1993 US$ 21 mill
Sea Prince (Republic of Korea) 1995 US$ 40 mill
YuilNo 1 (Republic of Korea) 1995 US$ 30 mill
Sea Empress (United Kingdom) 1996 US$ 60 mill
Nakhodka (Japan) 1997 US$ 212 mill
Nissos Amorgos (Venezuela) 1997 US$ 21 mill
Osung No 3 (Republic of Korea) 1997 US$ 16 mill
Erika (France) (so far) 1999 US$ 145 millPrestige (Spain, France and Portugal) (so far) 2002 US$ 154 mill
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RECENT DEVELOPMENT: SHIP-TO-SHIPTRANSFER OF OIL (1)
Study by independent expert
Permanently and semi-permanentlyanchored vessels engaged in STS oiltransfer operations
Definition of ship
Notion of received
Relevant for cover & contribution
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RECENT DEVELOPMENT: SHIP-TO-SHIPTRANSFER OF OIL (2)
Permanently & semi-permanently anchoredvessels engaged in STS transfer of oil
Ship: only when carrying oil as cargo on avoyage to or from a terminal outside thelocation where they normally operate (buttaking into account particular circumstances;case-by-case)
Received: all contributing oil
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MAIN TYPES OF CLAIM
Property damage
Clean-up operations and preventive measures
Losses in fishery, mariculture and tourism sectors:
Consequential loss
Pure economic loss
Environmental damage; limited to costs ofreasonable measures of reinstatement actuallyundertaken or to be undertaken
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RECENT DEVELOPMENT: ADMISSIBILITYCRITERIA FOR PREVENTIVE MEASURES (1)
Background: removal operations Prestige
Examination of admissibility criteria byDirector
Existing criteria: Claims Manual
Reasonableness; objective criteria;relationship between costs and benefits
Discussion in Assembly October 2006
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RECENT DEVELOPMENT: ADMISSIBILITYCRITERIA FOR PREVENTIVE MEASURES (2)
Reasonableness remains overarchingcriterion for all preventive measures
Take into account potential environmentaldamage with direct or indirect economic
effectNo social or political considerations
Determine sub-criteria by combiningproposal Director and France/Spain
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POSSIBLE SUB-CRITERIA FOR REMOVALOF OIL FROM SUNKEN SHIPS (Director)
Vulnerability of shoreline; likely economic damagefollowing release of remaining oil
Likely damage to environment
Likelihood of a release reaching shoreline
Quantity, type and characteristics of the oil
Alternative methods for containing or renderingharmless of the oil?
Likely cost of operation and likelihood of success
Likelihood of significant release during extraction
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POSSIBLE SUB-CRITERIA FOR REMOVALOF OIL FROM SUNKEN SHIPS (Fra & Spa)
Risks associated with situation of ship
Risks associated with volume of oil in ship
Technical viability of operation
Reasonable cost; including per tonnerecovered
23TheErika incident, France, 1999 24
DEVELOPMENT OF THE INTERNATIONALCOMPENSATION REGIME
1992 Civil Liability and Fund Convention Adopted in 1992
In force 1996
Increase in limits Decided 2000
In force 2003
Supplementary Fund Protocol Adopted 2003
In force 2005
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3RD TIERSUPPLEMENTARY FUND
Protocol establishing a Supplementary Fundin force in March 2005
Maximum compensation 750 million SDR(US$1 114 million), including amountspayable under 1992 Conventions
Contributions to Supplementary Fundpayable by oil receivers in States Parties toProtocol
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SHARING OF FINANCIAL BURDEN BETWEENSHIPOWNERS AND OIL INDUSTRY
Cost study; showed imbalance for smallerships under present regime
Impact of Supplementary Fund; potential
exposure for contributors STOPIA / TOPIA 2006
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STOPIA 2006
Applies to pollution damage in 1992 FundMember States
Voluntary increase to 20 million SDR of limitationamount for ships up to 29 548 gross tonnage
1992 Fund remains liable to pay compensation toclaimants over 4.51 million SDR (US$6.7 million)
1992 Fund will be indemnified by the shipownerfor difference between CLC limit and 20 millionSDR
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TOPIA 2006
Applies to pollution damage in SupplementaryFund Member States
Supplementary Fund will continue to paycompensation to claimants in accordance withSupplementary Fund Protocol
Shipowner will indemnify the Supplementary
Fund for 50% of the compensation it has paidto claimants
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NEW CASE: SOLAR 1
Sank on 11 August 2006 in heavy weatherin Guimaras Straits (Philippines)
Around 124 km shoreline and 500 hectaresof mangrove polluted
At sea response: dispersants, booms, etc.
Shoreline clean-up: 1500 persons, 63 000days
First STOPIA-case
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OVERVIEW CLAIMS SITUATION
11.000 subsistence fishery claims Guimaras Island;settled for total of 1.3 mill; all paid
11.000 subsistence fishery claims Iloilo Province;offers made for total of 600.000; payment expected
April 2007
90 fishponds; total claimed 3.3 mill
77 seaweed farmers; total claimed 7.600
70 tourism businesses claimed total of 1.1 mill. 45settled so far for total of 9.000
Fund conducted series of claims workshops, toexplain functioning of international regime and Fund
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CLEAN-UP AND PROPERTY DAMAGECLAIMS
3 claims from oil spill responders; total 3.4mill. Interim payments made for total 1.9mill.
Claim by Petron Corporation for 2.0 mill.Interim payment made for 1.1 mill
Cost of underwater survey of wreck; 195.000 paid by Club
42 households claimed for enforcedevacuation; total 8.800
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SUBSISTENCE FISHERY CLAIMSGUIMARAS ISLAND
11,200 claims assessed & paid; total 1.3mill
Assessments based on information providedby fisherfolk
Claims entered into database & grouped intodifferent fishing categories
Average daily incomes per category
compared with published data and results offield surveys
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SUBSISTENCE FISHERY CLAIMSGUIMARAS ISLAND (2)
Assessed losses ranged from 25-300depending on fishing category
Total amount paid 1.3 million so far
Payments made to individual claimants;completed by end of January 2007
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REMOVAL OF THE OIL FROM THE WRECK
Underwater survey; majority of oil may still be onboard
Seismically active area; proximity to sensitiveeconomic and environmental resources
Executive Committee Oct. 2006: removal of oil
admissible in principle Contractor hired by Club
Operations have started 14 March; durationdepending on quantity of oil found
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MISCELLANEOUS CLAIMS
Proposals submitted for environmentalmonitoring; estimated total 1.4 mill;discussions between Club, Fund andauthorities ongoing
16 claims for beach front property damage;for total of 41.000
Claim by social welfare department forproviding emergency relief & alternativelivelihood programs; for total of 55.700
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CONCLUSIONS
The international compensation regimeof the 1992 Conventions has in generalworked well
135 incidents in 28 years (incl. oldregime)
US$ 1 060 million paid to victims (incl.old regime)
Used as model in other fieldsDevelopments to ensure it meets the
needs of society in the 21st century40
Prestige incident, Spain November 2002
ThePrestige incident, Spain, 2002