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

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

1 Introduction

The CLC 1969, from which the CLC 1992 originates, was a direct consequence of the pollution of the shores of the United Kingdom and France resulting from the grounding on 18 March 1967 of the Torrey Canyon on Pollard Rock, off the English coast between the Isles of Scilly to the west and Lands End to the east and her subsequent sinking.¹

The British Government asked the Inter-Governmental Maritime Consultative Organisation (IMCO) to study the problems exposed by the Torrey Canyon disaster and to recommend solutions. The Council of IMCO met in Extraordinary Session on 4 May 1967. Recognising that some of the problems were essentially legal in character, an ad hoc Committee was established which met for its first session on 21 and 22 June 1967. By the time of its second session in November 1967 the ad hoc Legal Committee had become a permanent organ of IMCO.

Also, in May 1967, the Comité Maritime International (CMI) appointed an International sub-Committee with Lord Devlin as chairman to study the problems posed by the Torrey Canyon disaster. CMI applied for and was granted consultative status by IMCO, and thus began the close cooperation and consultation between these two organisations which has existed ever since. The system of maritime law which prevailed up to 1969 had been reasonably adequate to deal with the ordinary maritime casualty, but the loss of the Torrey Canyon demonstrated that the ordinary rules of maritime law might no longer be adequate to provide a satisfactory remedy for victims of oil pollution on a massive scale.

The Conference, which was organised by IMCO, met in Brussels on 10 to 29 November 1969. The two fundamental issues upon which the Conference had to reach a decision were: (a) the nature of the liability, and (b) the party who should bear that liability. States which had coastlines particularly vulnerable to oil pollution demanded a legal remedy which would ensure that they could recover clean-up costs and compensation for damage to resources within their territory, including their territorial seas. Nothing short of strict, if not absolute, liability could effectively guarantee such a remedy, but on whom should such liability rest? Maritime States with large tanker fleets demanded that if the ship was to be liable, such liability should be based on fault. These States were prepared to consider a system of strict or absolute liability only if that liability were placed on cargo.

The possibility of obtaining a convention acceptable to two-thirds of the delegations present looked rather remote. Many delegations had become convinced that only a system of strict liability would provide an adequate remedy and doubted the feasibility of establishing an oil pollution compensation fund based on a levy on cargoes of persistent oil moving on the oceans of the world. A Working Group had been set up to consider this concept during the Conference, but it was obvious that it would not be able to complete its work in the time available. The deadlock was eventually broken on 24 November 1969 when a compromise was reached on the basis of a proposal of the United Kingdom delegation,² supported by many other delegations,³ that the convention be founded on strict liability of the ship, compulsory insurance and a limit of liability of 1,900 Poincaré francs per ton with a ceiling of 210 million, insurance up to the limits being obtainable on the London market. As an agreed and essential part of the compromise the Conference adopted a resolution whereby, in consideration of the fact that in order to ensure that adequate compensation be available to the victims of large-scale oil pollution incidents a compensation scheme based upon the existence of an international fund should be elaborated, IMCO should be requested to convene an International Legal Conference not later than 1971, to consider and adopt such compensation scheme taking into account as a foundation the following principles:

Victims should be fully and adequately compensated under a system based on the principle of strict liability.

The fund should in principle relieve the shipowners of the additional financial burden imposed by the present Convention.⁴

The CLC 1969 entered into force on 19 June 1975 and after the replacement of the original money of account, the franc Poincaré, by the Special Drawing Right by a Protocol adopted on 19 November 1976,⁵ was the object of an in-depth review by a Protocol adopted on 25 May 1984. That Protocol never entered into force, and was replaced by a new Protocol adopted on 19 November 1992,⁶ that entered into force on 30 May 1996. The Convention, as amended by that Protocol, replaced for all purposes the CLC 1969, all State parties to it having ratified or acceded to the Protocol and became known as CLC 1992. On 18 October 2000 the limits of liability were increased by the IMO Legal Committee, pursuant to the procedure set out in art. 15.

2 The scope of application of the CLC 1992

The scope of application of the Convention must be considered from the standpoint of the ships subject to the Convention, of the area in which the Convention applies (geographical scope) and of the characteristics of the oil pollution damage the compensation of which is governed by the Convention.

2.1 Ships subject to the Convention

The following definition of ship⁷ is given in art.

‘Ship’ means any sea-going vessel and seaborne craft of any type whatsoever, constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.

The part of the definition in italics was added by the Protocol of 1992. The wording adopted in 1969 relates to the type of vessel: it may be a vessel or a craft. If a vessel it must be sea-going; if a craft it must be seaborne. The words ‘of any type whatsoever’ that follow the terms ‘vessel’ and ‘ship’ are used in maritime conventions in a manner that does not help to understand their precise meaning, as it appears from the fact that while in this Convention the term ‘ship’ is given a meaning wider than ‘vessel’ since it includes crafts of any type, in the Salvage Convention 1989 the relationship between such terms is reversed: ‘vessel’ in fact is a term which is given a wider meaning,⁸ since it includes ‘any ship or craft or structure capable of navigation’. It is suggested that in each convention, such terms have been used merely for the purpose of covering the craft to which each convention was intended to apply, and that a comparison between the various conventions would be inappropriate. Limiting therefore the enquiry to the original definition in the CLC, it is convenient to consider at the same time its wording in the French text of the Convention, which was the following:

‘Navire’ signifie tout batiment de mer ou engin marin, quel qu’il soit, qui transporte effectivement des hydrocarbures en vrac en tant que cargaison.

The first question which arises is whether the words ‘of any type whatsoever’ (‘quel qu’il soit’ in the French text) are related to both the preceding terms — ‘any sea-going vessel and seaborne craft’ — or only to the latter. Although the comma that appears in the French text after ‘engin marin’ (seaborne craft) would support the first alternative, the fact that it does not appear in the English text and that the word ‘vessel’ could embrace a variety of meanings if it were not qualified by the word ‘sea-going’, supports the second alternative. The fact that the ‘craft’ is qualified by the word ‘seaborne’, in opposition to the word ‘sea-going’ which qualifies the term ‘vessel’, indicates that the craft is not self-propelled: it may, for example, be a barge or a tank. The term ’ engin’ has an even greater variety of meanings, that actually are not sufficiently restricted by the word ‘marin’, as also a fishing gear is an ‘engin marin’ and its interpretation needs the support of the English term ‘seaborne craft’.

The Convention, however, according to the original definition applied only where a ship at the time of the incident was actually carrying oil as cargo and, therefore, it did not apply in respect of pollution damage caused by oil residues of previous cargoes and by bunker.

When the Legal Committee considered the revision of the Convention, it was discussed, inter alia, whether it should also apply to combination carriers which had carried oil as cargo and still had residues on board and the following draft of a new definition of ‘ship’, with some alternative wording, was adopted for submission to the diplomatic conference:⁹

‘Ship’ means any sea-going vessel and seaborne craft of any type whatsoever, constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk and during [the] [any] voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.

At the diplomatic conference held in May 1984 this wording was adopted with the deletion of the definite article ‘the’ before ‘carriage of oil’ and of the square brackets around the word ‘any’.¹⁰

A distinction is therefore now made between a ship constructed or adapted to carry only oil in bulk as cargo and a ship capable of carrying either oil or other cargoes as is the case with ships capable of carrying oil or ore. In the first case, the Convention always applies, provided pollution damage has occurred. If, therefore, at the time of the incident the ship was sailing in ballast and pollution damage was caused by bunker oil, the Convention applies, as made clear by the reference in the definition of ‘oil’ to any persistent hydrocarbon ‘whether carried on board the ship as cargo or in the bunkers of such ship’. In the second case, the Convention applies only if, when the pollution damage occurred, the ship or craft was actually carrying oil in bulk as cargo and during ‘any voyage’ following such carriage, except where it is proved that it had no residues of such carriage of oil in bulk, in which event the mere carriage of oil in the bunker does not entail the application of the Convention. The burden of proof rests on the party who invokes the application of the Convention: it may be the claimant, in order to benefit from the rules on the strict liability of the carrier, or the owner, in order to benefit from the limitation of liability, even though he may very likely also invoke the limitation under the LLMC Convention.

2.2 Ships excluded from the scope of application of the Convention

Art. XI so provides:

The provisions of this Convention shall not apply to warships or other ships owned or operated by a State and used, for the time being, only on government non-commercial service.

With respect to ships owned by a Contracting State and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in article IX and shall waive all defences based on its status as a sovereign State.

In the draft articles submitted by the Legal Committee to the Conference there was a provision in art. XI based on that in art. 3(1) of the Convention on Immunity of State-owned Ships of 1926, pursuant to which the Convention would not apply to warships or ships owned or operated by a State and used for the time being only on government non-commercial services.¹¹ During the Conference the proposal was made by the United States¹² to add the following paragraph:

With respect to ships owned or operated by a State and used on commercial purposes, each Contracting State shall be subject to suit in the jurisdiction set forth in article VIII and shall waive all defences based on its status as sovereign State.

Subsequently the above wording was included in art. XI of the revised draft articles prepared by the Secretariat.¹³

Reference to the United States proposal was made during the thirteenth meeting of the Committee of the Whole, when it was adopted¹⁴ and art. XI, as amended by the United States, was approved during the fifteenth meeting.¹⁵ The rules laid down in paragraph 2 are the same as those laid down in arts. 1 and 2 of the Immunity Convention of 1926.

2.3 The definition of ‘oil’

Art. 1.5 of the CLC 1992 states:

1. ‘Oil’ means any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such ship.

This definition differs from that adopted in the CLC 1969 in that the mere reference to ‘oil’ has been replaced by a reference to ‘hydrocarbon mineral oil’ and the inclusion of ‘whale oil’ has been deleted. When the draft Protocol was discussed at the Conference held in March 1986 these changes were considered. The replacement of ‘oil’ by ‘hydrocarbon mineral oil’ was suggested on the ground that non-mineral oils were not carried in sufficient quantities; if they were considered to pose a threat they should be covered by the HNS Convention not by the CLC.¹⁶ The deletion of the reference to ‘whale oil’ was stated to be due to the fact that pollution caused by such oil was no longer a problem.¹⁷ A much longer debate followed the proposal of the addition to a reference to ‘non persistent oil’. In support of that addition it was also stated that non-persistent oils were capable of causing serious damage and that even if damage by such oil was due to its toxic nature, it could still be considered as contamination.¹⁸ Against the argument, it was pointed out that their inclusion would considerably extend the CLC to types and numbers of vessels to which the CLC might apply and thus extend the scope of compulsory insurance, thereby causing significant burden upon governments;¹⁹ it was also stated that it would be difficult to extend to such oils the scope of application of the Fund Convention. An alternative proposal²⁰ had been that of adopting a more general definition, in which reference would be made only to ‘hydrocarbon oils’. Since the majority had supported the reference to ‘persistent oil’,²¹ that addition was adopted.

2.4 The notion of pollution damage

‘Pollution damage’ was defined in art. 1(6) of the CLC 1969:

1. ‘Pollution damage’ means loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures.

At the Conference held in 1984 for the revision of the CLC 1969 and the Fund Convention of 1971 that definition was considered by the Committee of the Whole II in charge of the revision of the CLC and the following text was adopted:

6 ‘Pollution damage’ means:

(a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever 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 costs of reasonable measures of reinstatement actually undertaken or to be undertaken;

(b) the costs of preventive measures and further loss or damage caused by preventive measures.

The first part of the definition, that is not underlined, has remained unchanged and the following general comments may be made on it.

(i) The terms ‘loss’ and ‘damage’ are used in a great many conventions and, therefore their interpretation may be based, in addition to the context in which they are used in this provision, on their general meaning in all conventions. ‘Damage’ has a physical connotation, even though it may also entail a loss, as it appears from the second part of the definition, in which reference is made to the impairment of the environment, which may consist of damage but the subsequent words ‘other than loss of profit from such impairment’ indicate that it may have economic consequences other than those connected with the reinstatement of the environment. ‘Loss’ instead may consist in a physical loss or in a financial loss.

(ii) The location where the loss or damage may occur is indicated by way of exclusion: it must occur outside the ship, and consequently any loss or damage that may occur on board the ship is not relevant for the purposes of this Convention.

(iii) The cause of the loss or damage is contamination by oil as defined in art. 1(5) and contamination implies a physical alteration of something outside the ship: it may be the environment or another ship or craft, etc.

(iv) The oil which causes the contamination must have escaped or have been discharged from a ship, as defined in art. 1.1. The escape is natural, as is the case where the hull is breached by the ship stranding on rocks or colliding with another ship. The discharge requires an intentional act, such as the opening of a valve; however it would appear that the term ‘discharge’ is meant in the OPRC Convention to cover also the escape of oil from a ship.

(v) The place where the escape or discharge occurs is irrelevant, but the loss or damage caused by the contamination is subject to the CLC, pursuant to art. II, only if it is caused in the territory or in the exclusive economic zone of a Contracting State.

The second underlined part of the definition was worded as follows in the draft prepared by the Legal Committee:

1. economic loss actually sustained as a direct result of contamination as set out in (a).²²

Although it had been stated²³ that the existing definition covered also damage to the environment, it was stressed²⁴ that an express reference to costs arising out from the restoration of the environment was needed. The United Kingdom had made the following comment on that draft definition:²⁵

1. The UK would favour the development of a more precise definition of pollution damage, but would be concerned if this were to eliminate types of claims which are generally accepted as legitimate at present. It is for consideration whether the desired result would not be achieved even with the present definition, by the addition of a proviso to CLC Article III. 1 as follows:
   

   ‘Provided that compensation for reinstatement of the environment shall not exceed the costs of reasonable measures actually undertaken or to be undertaken.’

After a debate it was decided to instruct a working group to consider the possible wording of the global definition of pollution damage and two alternative definitions were prepared, in which the relevant part relating to compensation for reinstatement of the environment was identical, its terms being as follows:²⁶

provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken.

The subsequent debate obviously had as its object the initial part of the two definitions and no comment of interest was made in respect of the second part quoted above, that was adopted by the Committee of the Whole at its sixteenth meeting.²⁷ The only change as respects the draft submitted by the United Kingdom has been, therefore, the addition of the words ‘other than loss of profit from such impairment’, that is not related to the cost of reinstatement. It, is, however, related to the time required for the reinstatement of the environment and the question arises whether the failure to take a timely action for such reinstatement might affect the claim for the loss caused by the environmental damage.

Recourse to the concept of reasonability is made in international conventions in all situations in which it is impossible to provide a specific description.²⁸

‘Preventive measures’ are defined in art. I(7) as:

1. ‘Preventive measures’ means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.

This definition has been kept unvaried since it had been adopted in the draft article submitted by the Legal Committee to the 1969 Conference and does not appear to require any comment.

3 The Geographical Scope of the Convention

Art. II so provides:

This Convention shall apply exclusively:

(a) to pollution damage caused:

(i) in the territory, including the territorial sea, of a Contracting State, and

(ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

(b) to preventive measures, wherever taken, to prevent or minimize such damage.

The CLC 1969 provided in art. II that the Convention applied exclusively to pollution damage caused in the territory including the territorial sea of a Contracting State and to preventive measures taken to prevent or minimise such damage. When the geographical scope was discussed in Committee II of the Conference held in March 1984, by which the draft revision of the CLC Convention was being considered, that issue had already been discussed in Committee I in respect of the draft HNS Convention. Committee I favourably considered the need for widening the scope of application of the draft beyond the territorial sea to the exclusive economic zone, on the ground that accidents involving hazardous and noxious substances were likely to occur beyond the territorial sea.²⁹ However, in the draft revision of the CLC 1969 prepared by the Legal Committee the following new, rather vague, text of art. II had been suggested:³⁰

This Convention shall apply exclusively:

(a) to pollution damage caused on the territory, including the territorial sea, of a Contracting State [or in the area in which, under international law, a Contracting State may exercise sovereign rights over natural resources], and

(b) to preventive measures, wherever taken, to prevent or minimize such damage.

That draft had given rise to a prolonged debate between delegations that supported the maintenance of the original text of art. II and those that instead deemed it necessary to extend the scope of the Convention to the exclusive economic zone. The former stated, inter alia, that the concept of pollution damage under the CLC was not the same as under the HNS Convention,³¹ that while in the context of the HNS Convention it was clear that hazardous and noxious substances might cause significant damage beyond the territorial sea, in the case of oil no such evidence was available.³² The latter stated, inter alia, that it was impossible to ignore that UNCLOS provided for States to exercise their jurisdiction in the EEZ in order to preserve the marine environment,³³ that there are States, such as the United States, that have substantial natural marine resources in areas beyond the territorial sea³⁴ and that generally States were making increasing use of the waters outside the territorial seas: consequently there was no reason why pollution damage to such waters should not be recognised in the same way as damage to the territorial sea.³⁵ Some of the delegations that favoured the extension of the scope of application beyond the territorial sea suggested, however, that while supporting in principle the text in square brackets in the draft, a clearer interpretation of the extension might be developed by the working group.³⁶ After discussions on the geographical scope had taken place in an informal working group composed by the delegations (that appeared to be the majority) which were in favour of expanding the geographical application of the CLC, the following draft text³⁷ was approved by a large majority³⁸ of the delegations:

This Convention shall apply exclusively:

To pollution damage caused:

(a) in the territory, including the territorial sea, of a Contracting State;

(b) in the exclusive economic zone of a Contracting State; and

(c) on the continental shelf of a Contracting State, including artificial islands, installations and structures under the jurisdiction of that Contracting State in accordance with international law.

2. To preventive measures, wherever taken, to prevent or minimize such damage.

However, as a consequence of subsequent discussions on the provision under (c), it was agreed to delete it on the understanding that the Drafting Committee would consider it so as to meet the concerns of those delegations which could not accept the expression ‘exclusive economic zone’.³⁹ That was done by adding, for the benefit of the States that had not established an exclusive economic zone, a reference to an area beyond and adjacent to the territorial sea of the relevant State determined by that State extending no more than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured: an area, therefore, the breadth of which corresponds to the maximum extension of the exclusive economic zone pursuant to art. 57 of UNCLOS.

4 The Person Liable for the Pollution Damage

4.1 Whether the owner of the ship or the owner of the cargo should be liable

Art. III (1) so provides:

Except as provided in paragraphs 2 and 3 of this article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.

The issue of whether the owner of the ship or the owner of the cargo should be liable for pollution damage and the question of whether liability should be based on fault or be strict had been the object of debate at the Conference. Four alternatives were put forward: (a) strict liability of the ship, (b) liability of the ship based on fault, (c) strict liability of the cargo and (d) joint strict liability on ship and cargo with first liability up to a fixed amount on ship and the remaining liability on cargo.⁴⁰ The alternative under (d) received particular attention when it was combined with the proposal, submitted by Belgium, as a supplement (or an alternative) to the liability of the cargo, of the establishment of an international fund for the compensation of pollution damage.⁴¹ The subsequent issue to be considered was that relating to the order in which the claimants should address their claims against the ship and the fund and out of the alternatives put forward, that pursuant to which the claimants should address their claims first to the ship and, once the limit of liability had been exhausted, against the fund, was chosen.⁴² There followed further discussions on the basis of liability, and on the possible adoption of a Fund Convention concurrently with the Civil Liability Convention and when it appeared that, although the Working Group set up by the Committee of the Whole had submitted a report,⁴³ such adoption would have not been possible within the time allowed for the completion of the work of the Conference, it was agreed to finalise the work for the Civil Liability Convention and, on the basis of a proposal of the Scandinavian delegations, to adopt a resolution whereby IMCO be requested to convene, not later than the year 1971, an International Legal Conference for the establishment of an international fund.⁴⁴

4.2 The definition of owner of the ship

The owner of a ship is defined in art. I(3) as:

1. ’ Owner’ means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, ‘owner’ shall mean such company.

In the course of the debates on whether liability should rest on the owner of the ship or of the cargo, reference was frequently made to liability of the ship or of the cargo. But when it had been decided that liability should rest on the ship, the alternative as to whether the registered owner or the operator ought to be liable was considered and although several delegates were of the view that the person liable ought to be the operator,⁴⁵ rather than the owner, it was pointed out that claimants could easily identify the registered owner, but not the operator, for in the majority of maritime countries the name of the operator is not mentioned in the ships register and, therefore, it was agreed that it would have been preferable to place the liability on the registered owner. It was, however, pointed out by the delegate of the USSR that in the socialist countries, the owner was the State and the operator a State-owned company and that consequently, liability for the operation rested on such latter company.⁴⁶ In order to take that situation into account it was decided to provide in the definition that where a ship is owned by a State and is operated by a company which is registered as the operator, ‘owner’, for the purposes of the Convention, would mean such company.

4.3 The rule on the channelling of liability⁴⁷

In the draft of art. III prepared by Working Group II of the IMCO Legal Committee convened on January 7, 1969, that rule was worded as follows:⁴⁸

1. No claim for compensation for pollution damage shall be made against the owner otherwise than in accordance with this Convention.
   
2. Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.

In the Draft Articles prepared by the Legal Committee and submitted to the Diplomatic Conference held from 10 to 26 November 1969 paragraphs 4 and 5 of art. III, which had become art. II (3),were merged into one single paragraph worded as follows:⁴⁹

1. No claim for compensation for pollution damage shall be made against the owner otherwise than in accordance with the provisions of this Convention. No claim for pollution damage, under this Convention or otherwise, may be made against the servants or agents of the owner.

During the Diplomatic Conference held in November 1969 the Delegation of the Netherlands proposed an amendment to draft art. II(3)⁵⁰ consisting in the addition, after ‘servants or agents’, of the words ‘independent contractors’. In turn the Japanese Delegation proposed an amendment⁵¹ consisting in the replacement of the draft text of art. II(3) with the following text:

No claim for compensation for pollution damage shall be made against the person or persons for whose action the owner shall be liable in accordance with the provision of paragraph 1 of the present article.

After both amendments had been rejected, draft art. II(3) became, without any change, paragraph 4 of art. III of the Convention adopted by the Diplomatic Conference.

Subsequently, after the entry into force of the CLC 1969, on 19 June 1975, the channelling of liability was discussed by an Informal Working Group that met in Washington at the invitation of the Government of the United States to consider a possible revision of the CLC 1969 and of the Fund Convention 1971. From the Report of the Chairman⁵² it appears that while the organisations representing the oil industry and shipping and insurance interests were of the opinion that the CLC and the Fund Convention should constitute a comprehensive, simple and all-inclusive regime for compensation for pollution damage, and that it was particularly important that a more extensive channelling be introduced,⁵³ some delegations were opposed to the introduction in the CLC of channelling to a larger extent than presently provided in art. III.

A second Informal Meeting was held in Stockholm from 7 to 11 December 1981. In the Report⁵⁴ it was stated that after an exchange of views on the issue of channelling of liability the meeting decided to submit the following new wording of art. III(4) for consideration by IMCO, indicating that the text was drafted on the basis of the corresponding text of art. 3.5 of the draft Convention on Liability and Compensation in Connexion with Carriage of Noxious and Hazardous Substances by Sea:⁵⁵

No claim for pollution damage under this Convention or otherwise may be made against:

(a) the servants or agents of the owner or the members of the crew;

(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;

(c) the charterer, manager or operator;

(d) any person performing salvage operations with the consent of the owner;

(e) any person performing salvage operations on the instructions of a competent public authority;

(f) any person taking preventive measures;

(g) all servants or agents of persons mentioned in sub-paragraphs (c), (d), (e) and (f) unless the damage resulted from their act or omission, committed with the intent to cause such damage or recklessly and with knowledge that such loss would probably result.

The channelling of liability was subsequently discussed during the 48th session of the Legal Committee in March 1982. From the Report of that session⁵⁶ it appears that opposite views existed in respect of the extension of the channelling provision of CLC 1969, but that it was ultimately agreed to retain, with brackets, the text proposed by the Informal Working Group. The position of the bareboat charterer was the object of considerable discussion, some delegates being in favour of the concept of joint and several liabilities for the owner and the bareboat charterer, while others were against and no consensus was reached on this question.

The text prepared by the Informal Working Group appears, still in brackets, in a Note by the IMCO Secretariat of 6 May 1982⁵⁷ and in the Report of the third meeting of the Informal Working Group held at IMO from 2 to 4 June 1982.⁵⁸

Following a proposal by the CMI,⁵⁹ the issue relating to bareboat charterers was decided by adding in art. III(4)(c) an express reference to them as well as to managers and operators. The text of sub-paragraph (c) was, therefore, amended as follows:

(c) any charterer (howsoever described, including bareboat charterers), manager and operator.

Except for that change, the revised text of art. III(4)(c) as drafted by the Informal Working Group was adopted by the Legal Committee and included in the draft Protocol submitted to the Diplomatic Conference.

During the Diplomatic Conference draft art. 4(3) of the Protocol, setting out the amended text of art. III(4) of the CLC, was considered in the course of the 11th meeting of the Committee of the Whole. Several delegates, including those of Canada, United Kingdom and United States, stated that there was a close link between the channelling of liability and the liability limits and that they were willing to favourably consider the draft provision on channelling, provided the limits to be adopted were high. After three proposals of amendments to the draft prepared by the Legal Committee had been rejected,⁶⁰ that draft was adopted without any change, with the deletion of all square brackets.⁶¹

The 1984 Protocol never entered into force owing to the strict conditions required for its entry into force and was replaced by the 1992 Protocol, which contains the same substantive provisions of the 1984 Protocol.

The groups of persons listed in art. III(4) will be considered seriatim.

(a) the servants or agents of the owner or the members of the crew;

The terms ‘servants’ and ‘agents’ may have a variety of meanings in civil and common law. It is suggested, however, that for the purposes of this Convention the term ‘servant’ (préposé in the French text of the Convention) connotes a person who acts in the course of his employment and the consequences of his action entail the responsibility of the principal pursuant to the rule respondeat superior. The term ‘agent’ may have different meanings in English law, but the relevant meaning in this Convention is given by the use in the French text of the term ‘mandataire’, which connotes a person who acts on behalf of another. Basically the servant performs physical work, while the agent performs intellectual work and assumes obligations on behalf of his principal.⁶²

The term ‘crew’ in common parlance indicates the ratings: clause 10(b) of Barecon 2001 provides that ‘the Master, officers and crew of the vessel shall be the servants of the Charterers’. However, in civil law countries the corresponding term equipage, equipaje, equipaggio includes all personnel on board a ship: master, officers and crew.

It is obvious that in the context of this provision the term ‘crew’ includes all seafarers on board a ship.

(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;

A wide interpretation of this sub-paragraph has been given in what could be described as an obiter by the French Cour de Cassation in The Erika.⁶³ The Court in fact stated that although the Court of Appeal had been wrong in holding that a classification society could not benefit of the provisions of art. III(4) of CLC 1992, that benefit should be excluded anyhow because the classification society had committed a ‘faute de témérité’,⁶⁴ thereby intending to refer in an abridged form to the action that pursuant to art. V(2) of CLC 1992 entails the loss of the right to limit. The action, described in the English text of the CLC 1992 as ‘committed … recklessly and with knowedge that such damage would probably occur’, is described in the French text as ‘commis témèrairement et avec conscience qu’en tel dommage en résulterait probablement’. The Court did not provide any explanation why a classification society could enjoy the protection of art. III(4) and which of its sub-paragraphs would have been applicable. In any event it appears that the statement quoted above has no basis.⁶⁵ In fact the category of other persons performing services for the ship, theoretically very wide, is limited twice in the context of this provision. First, it is limited because the person who performs services for the ship is a person other than the pilot, and that clearly indicates, pursuant to the ejusdem generis rule, that such other person must have a legal relationship with the owner pursuant to which he performs services for the ship similar to those of the pilot. Secondly, it is limited because such other person must be a person performing services for the ship ‘without being a member of the crew’. That means that such person, although not a member of the crew, performs services similar to those performed by the crew: such services must, therefore, be performed on board the ship in the course of navigation, such as the services of the hotel personnel.⁶⁶ This is confirmed by the separate reference under (c) to the manager and operator who are definitely persons performing services in connection with the operation of the ship, but ashore and not on board.

(c) any charterer (howsoever described, including bareboat charterers), manager and operator;

From the travaux préparatoires it appears that all types of charterers are included, such as, in addition to the bareboat charterer, the time and voyage charterer as well as, probably, the slot charterer. Reference to manager and operator is also made in the LLMC Convention 1976 as persons who, together with the owner, can invoke the benefit of limitation of liability. Manager is the person or company who takes care of the management of the ship as agent for the owner (or operator). Operator is the person, other than the owner, who operates the ship for his own account, normally on the basis of a bareboat charter party; if that is the case, channelling is already granted by the reference to the bareboat charterer.

(d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

The salvor already enjoys the benefit of the general limitation of liability under the 1989 Salvage Convention and the protection under CLC 1992 is granted for similar reasons. There are, however, situations where, although the salvor is entitled to a reward, he may not have the protection granted by this provision. In fact, salvage operations may take place without the consent of the owner of the salved vessel and even in case of prohibition of the owner, provided such prohibition is not reasonable.

(e) any person taking preventive measures;⁶⁷

The scope of this provision is clear, ‘preventive measures’ being defined in art. I(7) of CLC 1992.

(f) all servants or agents of persons mentioned in subparagraphs (c), (d) and (e);

The terms ‘servants or agents’ must obviously have the same meaning as in sub-paragraph (a) and the fact that reference in this sub-paragraph (f) is not made to sub-paragraph (b) confirms that the persons to whom reference is made in such latter sub-paragraph are individuals.

5 The Basis of Liability

The debate on the basis of the liability for pollution damage took place jointly with that on whom, either the owner of the ship or the owner of the cargo, should be liable, and that whether liability should be limited or not. A compromise solution was found, at the end of a long debate, when it was agreed to make first the shipowner liable, but only for a limited amount, and the damage in excess of the limit being borne by an international fund. It was also agreed that the liability of the owner should be strict.⁶⁸ Strict, but not absolute. Arts III(2) and (3) state:

2 No liability for pollution damage shall attach to the owner if he proves that the damage:

(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character, or

(b) was wholly caused by an act or omission done with intent to cause damage by a third party, or

(c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.

3 If the owner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from his liability to such person.

Paragraph 2(a), which consists of two entirely different series of events that are beyond the control of the owner, originates from the following text in alternative B of the draft articles prepared by the Secretariat:⁶⁹