REMEDIAL REGULATION

Dr. Trika Pitana

Dept. of Marine Engineering
Institut Teknologi Sepuluh Nopember (ITS), Surabaya
2010

Outline
Liability basis for Marine Pollution
Compensability of Marine Pollution
Damage
CLC and FUND Convention

Indonesias Flag Position

Sources: Shipping Industry Guidline on Flag Performance, retrieved from

www.marisec.org/fl ag-performance

Liability Basis
Strict liability
Oil pollution
Meaning : defend is only caused by force
majeour
Without considering the fault of defendant

Absolute Liability
Usually pollution caused by nuclean activity
Meaning : no defend at all

Liability basis
Fault Liability
It shall be prove that there is evidence: the
defendant is fault

Background
Trail smelter case
Conflict between USA and Canada, due to
POllution from chemical sulfur substance.
Mining factory in Trial discharge smoke which
pollute Washinton and pollute many plant and
disturb human health.
This case results :
. Under the principle of international law, as well as of the
law of the united states, no state has the right to use or permit
the use of its teritory is suh manner as to cause inhury by fumes
in or to the teritory of another of the properties or persons there
in, when the case is of serious consequences and the injury is
established by clear and convicing evidence

Resulting Doctrine of state responsibilities

Background
Chorfu Channel Case
The case was not really similar to
enviromental case, however; it was resulting
declaration of the united nations conferences
on the human environment:
State have, in accordance with the charter of the united
nation and the principle of international law, the
sovereign right to exploit their own resources pursuant
to their own envirmoental and developmental policies,
and the the responsibility to ensure that the activities
within the jurisdiction or cotrol do not cause damage
to the environment of other states or of ara beyond
the limits of national jurisdiction.

Marine Pollution Spectrum

Interrelationship
Public ( Preventive Measure)
UNCLOS Part XII
Regulatory
MARPOL, DUMPING, OPRC
(Preventive/Remedial)
Private (Remedial)
CLC; FUND; HNS

Compensability of Marine Pollution

Environment
Damage to property
Consequention Economic loss and pure
economic loss
Relational Economic loss: landcatch Case
Remoteness and Proximate Cause: The
Tanio
Enviromental damage

CLC and FUND Convention

Torrey Canyon 1967

Amoco Cadiz
Exxon Valdez 1989
Erika 1999

Civil liability Compensation

(CLC)

CLC (Civil Liability Compensation)

1969 and 1992
Applicable Claim:
Loss or damage caused by contamination
resulting from escape or discharge oil
from the ship, whenever such escape or
discharge occurs; the cost of preventive
measure and further loss or damage
caused by such measures

Teritorial Application
a. To pollution damage caused:
a. In the teritory, including teritorial sea, of a
contracting goverment, and
b. In the EEZ, ..in accordance with
international law and extending no more
than 200 nm

Applicable Substances
CLC 1969
Oil = persistent oil such as crude oil, fuel oil,
HDO, lub oil and whale oil whether carried
as cargo or (bunker??)
CLC 1992
Apply only to persistent hydrocarbon mineral
oil excluding whale oil

Applicable Ship
Any Sea going vessel or seaborne carft and any
seaborne craft of any type whatsoever, actually
carrying oil in bulk as cargo (CLC 69, art 1).It
does not apply to warship and goverment owned
or operated commercial ships (art. XI)

Liable Party
The owner (person(s) registered as the
owner of the ship (art.3.1)
If pollution damage result from an incident
involving two or more ship, the owner of all
ship are liable jointly and severally if
damage is not reasonably (art IV)

Defence
Caused by act of war or insurreption or
exceptional natural phenomenal; damage
due to intentional act or omission by third
party; damage wholly or partially due to
intentional act or omission or negligence of
person suffering damage; negligent
maintenance of navigational aids

Restriction of the Claims

Claims againts owner allowed only under the
convention, in the jurisdiction where damage
occurs. No claims allowed againts owners
servants or agents, otherwise claims againts
third parties unrestricted including claims by
owner (III.4, CLC 69)
As CLC 69, Additionally, no claims allowed
againts ships pilot, charterer, manager or
operator or any person performing salvage
operaration or taking preventive measures,
unless the damage resulted from their personal
act or omission (art III.4, CLC 92)

Limits of liability
CLC 1969 = 2000 franc per ton -210
million francs (max)
CLC Protocol 1976 = 133 unit amout per
ton of the ships tonnage 14 million unit
account (SDR)
CLC 1992 = 3 million SDR for ship < 5000
GT,and for larger sip 420 SDR per ton
59.7 million SDR

Amendement
CLC 92= as of 1st Nov 2003, owner limit
of liability amended as follows:
3 million SDRs ---- 4,510,000 SDR
420 SDR ------ 631 SDR
59.7 ---- 80.770.000 SDR

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Pollution Damage
(a) Loss or damage caused outside the ship
by contamination resulting from escape
or discharge of oil from the ship,
whenever such escape or discharge may
occur, and includes the cost of preventive
measures and further loss or damage
caused by preventive measure (CLC
1969)

Pollution Damage
(a) Loss or damage caused outside the ship by
contamination resulting from escape or discharge of oil
from the ship, whenever such escape or discharge
may occur, provided that compensation for impairment
of the environment other than loss of profit from such
impairment shall be limited to cost of reasonable
measures of of reinstatement actually undertaken or to
be undertaken (CLC 1992)
(b) The Cost of preventive measure and further loss or
damage caused by preventive measure (CLC 1992)

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FUND

FUND
Fund 1971 entered into force 16th oct
1978
Fund 1992 entered into force 30th may
1996
Supplementary Fund 2003

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FUND 1992 & Protocol 2003

Applicable Claims: As CLC 92 to the
extent that claims have not been fully
compensated under CLC 92 because:
No liability arises under CLC 92; owner is
incapable of meeting his obligation under CLC
92; or damage exceed owners CLC 92 limit of
liability

FUND 1992 and 2003

Teritorial Application is as CLC 92 Art 3.
Applicable substance, applicable ship= as
CLC 92
Liable Party = IOPC Fund
Basis of ship s tonnage = GT calcaulated
accordance to 1969 Tonnage Convention

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Supplementary Fund 2003

The relation ship between IOPC Fund
1992 and the IOPC Supplementary FUND
2003
Geographical application of Protocol
Liability of the IOPC Supplementary Fund
Limit of liability
Article 5
Article 6
Article 18

The relation ship between IOPC

Fund 1992 and the IOPC
Supplementary FUND 2003

IOPC Supp is a supplement of fund in

case the number of finance from Fund
1992 is not enough (art 4)

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Geographical application of
Protocol
This protocol shall apply exclusively:
a. To pollution damage caused:
a. In the teritory, including teritorial sea, of a
contracting goverment, and
b. In the EEZ, ..in accordance with
international law and extending no more
than 200 nm

Limit of liability
The total sum of the amount= 1992 Fund
Convention + Supplementary Protocol =
750 millions SDR (Special Drawing Right)

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Article 5
The supplementary Fund shall pay
compensation when the assembly of the
1992 Fund has considered that the total
amount of the established claims exceeds

Article 6
1.. Right to compensation againts the
supplementry Fund shall be extinguished
only if they are extinguished againts 1992
Fund
2. A claim made againts the 1992 Fund shall
be ragarded as a claim made by the same
claimant againts the supplementary Fund

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Admisable Claims
( Based on Claims Manual IOPC FUND)

Property Damage
Clean up operation on shore and at sea,
and preventive measure
Fixed cost
Consequential loss and pure economic
loss
Measure to prevent pure economic loss
Enviromental damage

Property Damage
The cost of cleaning fishing boat, fishing
gear, beach,piers etc. In case, the fishing
boat can not be cleaned, Fund may
compensate the cost of replacement of
fishing boat or other equipment.

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Clean up operation on shore and at

sea, and preventive measures
Cost using dispersant, boom etc
Operation at sea related to the deployment
of vessel, the salaries of crew
Claims for cost are not accepted when it
could have been foreseen that the
measure taken would be ineffective.
Salvage operation as the element of
preventive oil pollution

Consequential loss
and economic loss
Consideration:
The geographic proximity between the
claimants activity and the contamination
The degree to which a claimant is
economically dependent on an affected
resource
The extent to which a claimant has alternative
sources of supply or business opportunities
The extent to which a claiants business form
an integral part of the economic activity within
the area affected by the spill

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Enviromental Damage
Limitation of cost to reasonable measure
of reinstatement or impairement actually
undertaken or to be undertaken

References:
Marine Pollution By Ships retrieved from www.htdlaw.com
IMO, International Convention on the establishment of
international Fund for compensation for Oil Pollution
Damage, 1992, as amended
IMO, International Convention on Civil Liability for Oil
Pollution Damage, 1992 (1992 Liability Convention)
IMO, International Convention on Civil Liability for Oil
Pollution Damage, 1969 as amended by 1976
Wijoyo,Suparto,2003, Penyelesaian Sengketa
Lingkungan
Shipping Industry Guidline on Flag Performance,
retrieved from www.marisec.org/fl ag-performance

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Conclusion
You already know the principle of CLC 69,
1992, FUND 1991 and supplementary
2003

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