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-]ZWXMIV+MV\ZMWN<WZ\IVL1V[]ZIVKM4I_ 4IVLM[OMZQKP\[[\ZI¾M >QMVVI)][\ZQI <MT" .I`" -5IQT"MK\QT(MK\QTWZO )][\ZQIV)KILMUaWN;KQMVKM[ :M[MIZKP=VQ\NWZ-]ZWXMIV<WZ\4I_ 4IVLM[OMZQKP\[[\ZI¾M >QMVVI)][\ZQI <MT" .I`" -5IQT"M\T(WMI_IKI\ 5-. Last accessed on 31 March 2006.
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Norway, Portugal, Spain, Sweden, Japan, Italy, Lithuania and Barbados), and two more states will join by 3 June 2006 (Croatia and Slovenia).40 It is obvious from the number of member states remaining within the 1969 CLC that it is losing power. 653
As a result of the 2003 Protocol, the oil industry has to contribute to the Supplementary Fund (although on a voluntary basis) in addition to the 1992 Fund, whereas the shipping industry only has to assume liability under the CLC Conventions. Thus the question arises if this means the oil industry will contribute more to the oil pollution costs than the shipping industry, or if there is a tendency to shift the responsibility for compensating oil pollution victims more to one industry instead of the scheme of cost sharing, and what the reasons are for such a shift.
654
In March 2005, at the Assembly of the 1992 Fund, the International Group of P&I Clubs (the International Group) offered to increase the limitation amount for small tankers under the 1992 CLC on a voluntary basis. This is known as 6723,$ WKH 6PDOO 7DQNHUV 2LO 3ROOXWLRQ ,QGHPQLÀFDWLRQ$JUHHPHQW 7KH STOPIA entered into force on 3 March 2005 (when the Supplementary Fund Protocol entered into force). Under this agreement, for pollution damage which occurs in a State that is a party to the Supplementary Fund Protocol, the limitation amount undertaken by the shipowner will be increased if the ship is insured by one of the P&I Clubs that are members of the International Group.
655
In October 2005, the International Group made another proposal at the Assembly of the 1992 Fund to extend the scope of STOPIA to all States which are parties to the 1992 CLC and to establish a scheme called TOPIA, the Tanker Oil Pollution ,QGHPQLÀFDWLRQ$JUHHPHQW723,$ 7KURXJKWKH723,$WKH&OXEVZRXOG indemnify 50% of the compensation paid by the Supplementary Fund. After informal meetings between the International Group on behalf of the shipping industry and the Oil Companies International Marine Forum (OCIMF), in February 2006, the International Group developed a revised STOPIA, known as STOPIA 2006, and a second agreement TOPIA 2006. These agreements entered into force on 20 February 2006. The STOPIA 2006 is different to the original STOPIA to the extent that the former only applied to pollution damage in the member states of the Supplementary Fund, whereas the new agreement also applies to pollution damage in all other 1992 Fund member states. Under the TOPIA 2006, 50% of the compensation paid by the Supplementary Fund ZLOOEHLQGHPQLÀHGE\WKH,QWHUQDWLRQDO*URXS
40
Supra fn. 39, the website of the IOPC Fund: <www.iopcfund.org/facts.htm>. Last accessed on 31 March 2006.
Shifts in Compensation for Environmental Damage
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8. Summary 6RIDUZHKDYHEULHÁ\UHYLHZHGWKHKLVWRU\RIKRZWKHLQWHUQDWLRQDOUHJLPHRQ marine oil pollution compensation was established through the two international conventions and how they evolved in all the protocols, taking into account the LQÁXHQFHRIWKHYROXQWDU\LQGXVWU\VFKHPHV)URPVXFKDQRYHUYLHZZHPD\ ÀQGVRPHKLVWRULFDOUHDVRQVIRUWKHVKLIWVLQWKHGRPDLQRIPDULQHRLOSROOXWLRQ compensation, as indicated by Verheij.
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First, catastrophic oil spill incidents often act as an impetus for changes to the international oil pollution compensation regime. Thus one direct reason for the shifts in governance in such a regime is the serious oil pollution incidents which revealed the inadequacy and shortcomings of the existing system.
657
Second, there is a shift from private to public in a number of aspects of the marine oil pollution compensation regime. One is that the public institution (the IMO) has replaced the private institution (the CMI) to play the role of a legislator. Another example of such shift is that the compensation regime has gone through a change from industry scheme (which is private) to the international convention scheme (which is, to a certain extent, public in nature). 7KHUDWLÀFDWLRQRILQWHUQDWLRQDOFRQYHQWLRQVLVDORQJSURFHVV,WWRRN\HDUV for the 1969 CLC and 7 years for the Fund Convention 1971 to come into force. The voluntary schemes on the other hand have the advantage of speedy reaction and adaptation to the changing situation. Thus, before the international conventions could take effect, the industry schemes to a large extent solved the problem of compensation for oil pollution victims at least on an interim basis, DQGWKH\VHUYHGDVDVWRSJDSPHDVXUHWRÀOOLQWKHJDSVH[LVWLQJLQQDWLRQDODQG international legislation. Moreover, the international conventions were indeed built on the models of the industry schemes, thus the industry schemes also SOD\HGDQLPSRUWDQWUROHEHKLQGWKHVFHQHVLQUHDSSRUWLRQLQJWKHÀQDQFLDOEXUGHQ of oil spills between the shipping and the oil industries.41 However, in the long run the international conventions can be more effective in the sense that they impose a responsibility on the contracting countries for the implementation of the conventions at national level. This compulsory effect is lacking in the voluntary industry schemes.
658
There is also a shift concerning the marine oil pollution regime in that the legislation was promoted from domestic or regional level to international level. In this respect, the role of the European Union is a good illustration. The general approach of the EU prior to 1993 was that marine oil pollution is an international problem which could be better and more effectively tackled at the international level. Thus the EU mainly built its legislation on the basis of IMO Conventions and Resolutions. However, the EU changed its approach in 1993. This is because, despite the stringent rules established in the international
659
41
C. De la Rue/C. Anderson, Shipping and the Environment Law and Practice (1998), 4.
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conventions, due to the lack of international overall monitoring or sanctions, the international conventions are not effectively implemented throughout the world.42 The European Community has a greater chance of more detailed, effective and quicker legislation being adopted at a EU level. The EU through its special institution can make the international legislation binding to the Member States. When the states do not apply the rules, they will have to appear before the Court of Justice and may be convicted, and failure to comply will lead to penalties. However, the idea of keeping international uniformity obviously gains priority over the regional action in this particular context of marine oil pollution compensation. Under the pressure that the EU would set up its own regional FRPSHQVDWLRQIXQGWKH,02ÀQDOO\DGRSWHGDWKLUGWLHURIFRPSHQVDWLRQWKH Supplementary Fund in 2003. 660
Until now, we have analyzed the international oil pollution compensation regime from a historical perspective. Now we will address the individual shifts to see how they were formulated in history and why they are evolving in such a way.
&6KLIWWRVWULFWOLDELOLW\ 1. Description of the shift 661
Prior to the Torrey Canyon incident in 1967, there was no uniform legal approach or any international legal regime regulating liability and compensation for oil pollution. It was mainly up to national law to decide on how to compensate pollution victims. In most countries, liability for marine oil pollution was grounded on tort law principles.43 The tort laws of different countries of course varied from country to country. In some jurisdictions, proof of negligence was required, while in others the occurrence of pollution damage regardless of QHJOLJHQFHPLJKWEHVXIÀFLHQW44 Moreover, the TOVALOP industry scheme, which prevailed for a long time, adopted fault liability.
662
The 1969 CLC adopted strict liability of the registered shipowner. It therefore constitutes a shift from a general tort rule (most national law) or fault liability (as adopted by the original TOVALOP) to strict liability (under the CLC).
42
43
44
V. Power, EC Shipping Law (2nd ed. 1998), 14. See in this respect, for instance, the fact that the EC Commission is empowered to pursue the Member States for failure to notify, to adequately transpose into national law or to implement directives. C. De la Rue/C. Anderson (supra fn. 41), 8; P. Griggs, Common Law and Civil Law: A CMI Perspective, in: E. Van Hooydonk (ed.), English and Continental Maritime Law, After