International Maritime Conventions (Volume 3)

Protection of the Marine Environment

Francesco Berlingieri

• Publisher: Informa Law from Routledge
• Year: 2016
• ISBN:
  9781317696032
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto marittimo

For the first time, this unique text brings together all private international maritime law conventions alongside expert commentary and analysis. Truly global in approach, the book covers each of the nineteen conventions currently in force, all scrutinised by this internationally-acclaimed author. It also examines important maritime conventions not yet fully ratified, including the topical Rotterdam Rules.

This comprehensive resource provides a thorough treatment of both wet and dry shipping treaties, combining breadth of coverage with depth of analysis. In this third volume, the author covers the key conventions dealing with pollution and safety at sea. In particular, the author covers the following instruments:

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• International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 and Protocol of 1973

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• International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 (OPRC Convention) with its Protocol of 2000 (OPRC-HNS Protocol)

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• International Convention for the prevention of pollution from ships (MARPOL) and protocol of 1978

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• International Convention for the Safety of life at sea, 1974 (SOLAS)

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• Convention on the prevention of marine pollution by dumping of wastes and other matters, 1972 as amended by the protocol of 1996

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• International Convention for the control and management of ship's ballast water and sediments, 2004

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• International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978

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• Nairobi International Convention on removal of wrecks 18 may 2007

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• Port state control: the Paris Memorandum of Understanding and the European Directive 2009/16 EC

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• European Traffic Monitoring and Information System

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• International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 1992)

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• International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, as amended by its Protocol of 2000 and its Supplementary Protocol of 2003 (the Fund Convention)

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• International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

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• International Convention on Liability and Compensation for Damage in Connection with Carriage of Hazardous and Noxious Substances by Sea, 1996

This book is an indispensable reference for maritime lawyers, academics and students of maritime law worldwide.

part1
The Preventive Conventions

CHAPTER 1

International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 and Protocol of 1973

Section I — The Convention of 1969

1 The History of the Convention

On 18 March 1967, the Torrey Canyon, a single screw tanker built in 1959 of 61,263 gross tons and 48,437 net tons, with a deadweight capacity of 120,890 tons on her winter marks, loaded with 119,328 tons of crude oil shipped by BP Trading Limited of the United Kingdom, her ultimate destination being Milford Haven, Wales, ran aground on the Seven Stones reef between the Scilly Isles and Lands End. In the opinion of the Board of Investigation set up by the Liberian Government, the stranding was due solely to the negligence of the master.

The stranding damaged many of the cargo tanks and by 20 March it was estimated that 30,000 tons of oil had spilled into the sea. On 25 March, oil began to arrive on Cornish beaches, 100 miles of coastline being affected. On 26 March high seas and strong winds caused the ship to break her back, releasing an estimated further 30,000 tons of crude oil. Between 28 and 30 March, the ship was bombed by British Naval and Air Forces in order to open the remaining tanks and release the rest of the oil into the sea. The oil was then set on fire by dropping aviation fuel, napalm and sodium chlorate devices; it is believed that all the oil in the vicinity of the wreck was destroyed by 30 March. Some oil also reached the coast of Brittany, where it caused considerable damage.

Not long after the commencement of the work aiming at adopting uniform rules on the liability for oil pollution damage the attention was called within IMCO to the need to carry out studies aimed at adopting measures that could strengthen the safety of navigation and obviate the danger of pollution.¹ Two alternative approaches were considered: either to recommend national action or to adopt international rules. These were the object of a guidance paper of the United States, in which the advantages and disadvantages of both alternatives were considered.² Another guidance paper was submitted by the United Kingdom³ and comments thereon were submitted to the Working Group constituted by the IMCO’s Legal Committee by several governments.⁴ Such documents were considered by the Working Group at its first session and, at its second session, the Working Group, after discussing the agenda items,⁵ prepared a Report to the Council enclosing draft articles on the right of a coastal State to intervene in case of a casualty occurring outside its territorial sea which causes, or might cause, pollution by oil.⁶ The need for an international convention arose from the fact that pursuant to art. 6(1) of the International Convention on the High Seas 1958, no State could take police action beyond its territorial waters against ships flying a foreign flag: the jurisdiction over vessels when sailing on the high seas pertained exclusively to the flag State.⁷

The draft articles (except art. VIII) were adopted by the International Conference held in November 1969 with very few changes.

2 The Scope Of Application Of The Convention

Article I(1) states:

Parties to the present Convention may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such casualty, which may reasonably be expected to result in major harmful consequences.

It is not easy to draw a distinction between the rules on the scope of application of the Convention and the rules that set out the conditions under which the measures necessary to prevent, mitigate or eliminate grave and imminent danger to the coastline or related interests from pollution or threat of pollution of the sea by oil may be adopted. It is suggested, however, that the rules that pertain to the scope of application of the Convention are those that relate to the notion of ‘maritime casualty’, to the area in which the measures may be taken and to the notion of ship.

2.1 The notion of ‘maritime casualty’

Maritime casualty is defined in art. II(1) as follows:

‘Maritime casualty’ means a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo.

During the Conference, the Canadian delegate objected to this definition, which had already appeared in the draft articles prepared by the Legal Committee, on the ground that the purpose of the Convention was not to protect the ship and cargo, but to protect the coastline and related interests; the coastal State should not be compelled to prove that the incident which had occurred had caused material damage to the ship.⁸ The Syrian delegate then suggested that the words ‘a ship or cargo’ at the end of the sentence should be replaced by ‘a coastal State or States’.⁹ There followed a long and not very constructive debate, during which perhaps the most significant comment against the Canadian proposal was made by the Irish delegate, who stated that the words the deletion of which was suggested were essential, ‘otherwise a slight incident of navigation, such as a mere change of course, might be interpreted as justifying an intervention’.¹⁰ Both the concern about the wording of this provision, and that about the effect of its suggested amendment had some justification. The definition of maritime casualty must be read into art. I(1) from which it appears that the danger must arise from either a casualty or acts related to such a casualty. The ‘material damage’ is definitely a constituent element of the notion of ‘maritime casualty’, even if it is not required that such material damage has occurred. It is sufficient that there is an ‘imminent threat’ of its occurrence, as would be the case for a tanker grounded on rocks in calm sea that has not suffered any damage, but would suffer significant damage if the weather had turned from calm to stormy. The danger may follow, rather than from a maritime casualty, from an act related to it, as would be the case if unskilful attempts to refloat a grounded ship were made. But, in any event, there must be either material damage or an imminent threat of material damage to a ship or her cargo. Since the cargo is oil, the damage to the cargo may occur in case of fire or of discharge of the oil into the sea. It appears that the type of occurrence to which the Convention does not apply is that of voluntary discharge of oil (or oil residues) from a ship except where it is made for the purpose of salving the ship.

The ‘maritime casualty’ must therefore involve a ship or her cargo. Its nature is described in rather loose terms, since reference is made, in addition to collision and stranding, to other incidents of navigation or other occurrence either on board a ship or external to it. ‘Incident in navigation’ is an expression previously used also in the 1952 Convention on Penal Jurisdiction: while in the contemporary Civil Jurisdiction Convention reference is made to collision only, in the Penal Jurisdiction Convention there is added, after collision, the reference to ‘other incidents of navigation’. Although no explanation may be found in the travaux préparatoires for the reason of such addition, a precedent may be found in those of the 1910 Collision Convention, from which it appears that, following a proposal by the Belgian delegate to extend the scope of application of the Convention to other incident of navigation,¹¹ there was in the draft convention an article — art. 13 — that provided that the Convention applied also to the making good of damages which a vessel has caused to another vessel, or to goods on board either of them by the execution of a manoeuvre or by the non-observance of regulations. It appears, therefore, that a similar meaning must be given to the phrase ‘other incident of navigation’ in the definition of ‘maritime casualty’.

However the cause of danger of pollution is further extended by the subsequent words ‘or other occurrence’ and the statement that such occurrence may take place either on board the ship or be ‘external’ to the ship. An occurrence on board may consist of a fire or of an explosion. An occurrence on the high seas external to the ship, that could justify the taking of measures against that ship, is more difficult to conceive.

2.2 The area in which the measures may be taken

The geographic scope of application of the Convention is the high seas. The reason for this is twofold. Pursuant to the International Convention for the Prevention of Pollution of the Sea by Oil, as amended, the coastal State has full competence to act within its territorial waters and, as previously stated, a State has, pursuant to art. 6(1) of the Convention on the High Seas 1958, exclusive jurisdiction over ships flying its flag.¹²

2.3 The notion of ‘ship’

Article II(2) provides the following definition of ship:

’ship’ means:

(a) any sea-going vessel of any type whatsoever, and

(b) any floating craft, with the exception of an installation or device engaged in the exploration and exploitation of the resources of the sea-bed and the ocean floor and the subsoil thereof.

The first question that arises relates to the notion of ‘sea-going vessel’. The reason why this reference has been made is unclear. Since, in fact, the Convention applies to measures taken on the high seas, there was no reason to qualify the relevant vessel as ‘sea-going’ since it is obvious that such vessel was ‘going’ at sea, failing which the Convention would not apply. Since it would not make sense to exclude from the scope of ...