limitation of liability and, if so, how the limitation amount should be determined. A
sensitive issue would be whether liability under the convention should be channelled
to one or a few persons who is or are easily identifiable, or liability under the
convention should be imposed on everyone involved in the offshore activities who
caused or contributed to the incident. Problems relating to insurance would have to
be resolved. It would also be necessary to include provisions on jurisdiction and
enforcement of judgements. Finally, it might be appropriate to consider whether
arrangements could be made in a prospective offshore liability convention for a
system by which additional funds would be made available if the amounts actually
paid by the liable party or parties and the insurers were insufficient to compensate all
admissible claims in full.
It appears that if in the future a convention on liability for pollution damage
arising from offshore activities were to be elaborated, it would be fruitful to explore
the approach on important liability issues taken in the regime governing liability and
compensation for pollution damage resulting from tanker oil spills. This regime,
created by the 1992 Civil Liability Convention and the 1992 Fund Convention
(CLC/Fund regime), has been in operation for over 40 years and has been involved
in some 150 oil spill incidents.
27 It is suggested that the experience gained from the
operation of that regime might assist the drafters of an offshore convention to find
balanced and appropriate solutions to the issues involved.
28
4.2 Recognition of Foreign Judicial Sales of Ships
Vessels are arrested from time to time in different jurisdictions. Some of the arrested
ships are subject to a judicial sale for enforcement of a judgment or arbitral award or
for preservation of maritime claims without a final and enforceable judgement or
award. A number of problems have been encountered by the international shipping
industry in this regard, in particular the recognition of judicial sales of ships by a
foreign court.
The CMI started to work on this subject in 2010. A draft Convention on
recognition of foreign judicial sales of ships was approved at a CMI Conference
held in Hamburg in 2014.
The purpose of the draft Convention is to ensure that the purchaser of a ship in a
judicial sale can be confident of obtaining a clean title of the ship, free of and
unencumbered by any mortgages or similar liens or charges placed on the ship prior
to the judicial sale. Under the draft Convention the purchaser should be able, against
presentation of a suitable certificate issued by the court which conducted the judicial
sale, to delete the ship from its earlier registry and re-register it in the registry
selected by him. This would enable the purchased ship to trade freely, and to ensure
27 For an analysis of the CLC/Fund Regime, see Jacobsson (2016a).
28 See Jacobsson (2018).
What Challenges Lie Ahead for Maritime Law?
265
sensitive issue would be whether liability under the convention should be channelled
to one or a few persons who is or are easily identifiable, or liability under the
convention should be imposed on everyone involved in the offshore activities who
caused or contributed to the incident. Problems relating to insurance would have to
be resolved. It would also be necessary to include provisions on jurisdiction and
enforcement of judgements. Finally, it might be appropriate to consider whether
arrangements could be made in a prospective offshore liability convention for a
system by which additional funds would be made available if the amounts actually
paid by the liable party or parties and the insurers were insufficient to compensate all
admissible claims in full.
It appears that if in the future a convention on liability for pollution damage
arising from offshore activities were to be elaborated, it would be fruitful to explore
the approach on important liability issues taken in the regime governing liability and
compensation for pollution damage resulting from tanker oil spills. This regime,
created by the 1992 Civil Liability Convention and the 1992 Fund Convention
(CLC/Fund regime), has been in operation for over 40 years and has been involved
in some 150 oil spill incidents.
27 It is suggested that the experience gained from the
operation of that regime might assist the drafters of an offshore convention to find
balanced and appropriate solutions to the issues involved.
28
4.2 Recognition of Foreign Judicial Sales of Ships
Vessels are arrested from time to time in different jurisdictions. Some of the arrested
ships are subject to a judicial sale for enforcement of a judgment or arbitral award or
for preservation of maritime claims without a final and enforceable judgement or
award. A number of problems have been encountered by the international shipping
industry in this regard, in particular the recognition of judicial sales of ships by a
foreign court.
The CMI started to work on this subject in 2010. A draft Convention on
recognition of foreign judicial sales of ships was approved at a CMI Conference
held in Hamburg in 2014.
The purpose of the draft Convention is to ensure that the purchaser of a ship in a
judicial sale can be confident of obtaining a clean title of the ship, free of and
unencumbered by any mortgages or similar liens or charges placed on the ship prior
to the judicial sale. Under the draft Convention the purchaser should be able, against
presentation of a suitable certificate issued by the court which conducted the judicial
sale, to delete the ship from its earlier registry and re-register it in the registry
selected by him. This would enable the purchased ship to trade freely, and to ensure
27 For an analysis of the CLC/Fund Regime, see Jacobsson (2016a).
28 See Jacobsson (2018).
What Challenges Lie Ahead for Maritime Law?
265