4.1 Civil Liability for Offshore Oil Pollution
In the aftermath of two incidents in the offshore sector, the Montara incident in the
Timor Sea off the coast of Western Australia in 2009 and the Deepwater Horizon
incident in the Gulf of Mexico in 2010, it was proposed that an international
convention be developed that would govern liability and compensation for pollution
damage resulting from activities offshore.
20
In this context reference should be made to UNCLOS that governs the rights of
coastal States to carry out activities related to the exploration for and exploitation of
natural resources over and above the seabed and in the subsoil (art. 193). States are
obliged to take measures to prevent, reduce and control pollution of the marine
environment (in particular art. 194 and art. 207-212) and to impose criminal sanctions on those who cause marine pollution (art. 230). There are also provisions on
State responsibility.
Issues relating to civil liability and compensation are, however, dealt with in
UNCLOS only in article 235, which provides that States shall ensure that recourse is
available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine
environment by natural or legal persons within their jurisdiction. To this end, States
shall co-operate in the implementation of existing maritime law and the further
development of international law relating to responsibility and liability for the
assessment of and compensation for damage as well as development of criteria
and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. UNCLOS does not contain any substantive provisions
on liability and compensation for marine pollution, but imposes, however, an
obligation on States to develop legislation in this regard.
In the absence of treaty instruments, liability and compensation for pollution
damage resulting from offshore activities are governed by the applicable domestic
law or by regional arrangements. Some States have very detailed legislation in this
regard (for instance Norway, the United Kingdom and the United States). Others
have no such legislation and liability issues will have to be dealt with under general
legislation or jurisprudence on civil liability.
The liability and compensation issues in the offshore sector have, however, been
addressed on a regional basis, in particular within the European Union (EU).
21 As
20 A regional convention on the subject for the Baltic and North Atlantic was adopted in London in
1977, the Convention on Civil Liability for Oil Pollution Damage Resulting from the Exploration
for and Exploitation of Seabed Mineral Resources. However, this Convention never entered into
force.
21 Directive 2004/35/EC on environmental liability which deals with liability for some types of
pollution damage and applies to offshore operations in EU Member States, and Directive 2013/30/
EU on safety of offshore oil and gas operations.
What Challenges Lie Ahead for Maritime Law?
263
In the aftermath of two incidents in the offshore sector, the Montara incident in the
Timor Sea off the coast of Western Australia in 2009 and the Deepwater Horizon
incident in the Gulf of Mexico in 2010, it was proposed that an international
convention be developed that would govern liability and compensation for pollution
damage resulting from activities offshore.
20
In this context reference should be made to UNCLOS that governs the rights of
coastal States to carry out activities related to the exploration for and exploitation of
natural resources over and above the seabed and in the subsoil (art. 193). States are
obliged to take measures to prevent, reduce and control pollution of the marine
environment (in particular art. 194 and art. 207-212) and to impose criminal sanctions on those who cause marine pollution (art. 230). There are also provisions on
State responsibility.
Issues relating to civil liability and compensation are, however, dealt with in
UNCLOS only in article 235, which provides that States shall ensure that recourse is
available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine
environment by natural or legal persons within their jurisdiction. To this end, States
shall co-operate in the implementation of existing maritime law and the further
development of international law relating to responsibility and liability for the
assessment of and compensation for damage as well as development of criteria
and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. UNCLOS does not contain any substantive provisions
on liability and compensation for marine pollution, but imposes, however, an
obligation on States to develop legislation in this regard.
In the absence of treaty instruments, liability and compensation for pollution
damage resulting from offshore activities are governed by the applicable domestic
law or by regional arrangements. Some States have very detailed legislation in this
regard (for instance Norway, the United Kingdom and the United States). Others
have no such legislation and liability issues will have to be dealt with under general
legislation or jurisprudence on civil liability.
The liability and compensation issues in the offshore sector have, however, been
addressed on a regional basis, in particular within the European Union (EU).
21 As
20 A regional convention on the subject for the Baltic and North Atlantic was adopted in London in
1977, the Convention on Civil Liability for Oil Pollution Damage Resulting from the Exploration
for and Exploitation of Seabed Mineral Resources. However, this Convention never entered into
force.
21 Directive 2004/35/EC on environmental liability which deals with liability for some types of
pollution damage and applies to offshore operations in EU Member States, and Directive 2013/30/
EU on safety of offshore oil and gas operations.
What Challenges Lie Ahead for Maritime Law?
263