The legal uncertainty in respect of civil liability should be greatly reduced when
Annex VI to the Antarctic Treaty Protocol on Liability Arising from Environmental
Emergencies enters into force and its provisions have been implemented in the
national legislation of the States parties.
Under Annex VI the States parties shall require their operators who carry out
activities in the Antarctic Treaty area to undertake reasonable preventative measures
that are designed to reduce the risk of environmental emergencies and their potential
adverse impact. Such operators shall be required to take prompt and effective
response action to environmental emergencies arising from their respective
activities.
The liability regime to be created by Annex VI is very similar to that under the
1992 Civil Liability Convention which governs liability for spills from oil tankers.
An operator who fails to take prompt and effective response action shall under the
Annex have strict liability for the costs of response action taken by States parties. He
will have only very limited defences, namely that the emergency was caused by an
act necessary to protect human life, a natural disaster of an exceptional character or
an act of terrorism. The operator shall cover his liability by insurance. He is entitled
to limit liability to an amount determined on the basis of the tonnage of his vessel.
60
The Annex shall not affect the right to limit liability under any applicable limitation
of liability treaty, provided the limits under such a treaty are no lower than those set
out in the Annex. Pursuant to the Annex a fund should be established to provide for
the reimbursement of reasonable and justified response costs incurred by a State
party, but there is no indication of how this fund would be financed or how it would
operate.
61
Also as regards the Antarctic region, pollution response would be very difficult
and costly due to the remoteness of the area and the severe climatic conditions. For
this reason, and in view of the operator’s fairly low limitation amounts under the
Annex, it is unlikely that the amount available would be sufficient to cover the costs
of response to a major oil spill. It would be very useful, therefore, if, as envisaged in
the Annex, a fund could be established that would pay additional compensation,
when required. A positive factor is, however, that the use of heavy fuel oil as fuel or
the carriage of such oil as cargo is prohibited in the Antarctic which should prevent
spills of such oil that normally give rise to very costly response operations.
62
There are also other treaties that are relevant for the protection of the environment
in the polar regions. Suffice to mention the 1990 Convention on Oil Pollution
Preparedness, Response and Cooperation (OPRC), the 2000 Protocol to the OPRC
on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous
and Noxious Substances (OPRC—HNS Protocol), the 1989 Convention on Salvage
60 These limits are identical to those laid down in the 1976 Convention on Limitation of Liability for
Maritime Claims as amended by the 2002 Protocol thereto.
61 For an analysis of the issues relating to civil liability see CMI International Working Group on
polar shipping, (2017).
62 MARPOL Annex I, Regulation 43.
What Challenges Lie Ahead for Maritime Law?
273
Annex VI to the Antarctic Treaty Protocol on Liability Arising from Environmental
Emergencies enters into force and its provisions have been implemented in the
national legislation of the States parties.
Under Annex VI the States parties shall require their operators who carry out
activities in the Antarctic Treaty area to undertake reasonable preventative measures
that are designed to reduce the risk of environmental emergencies and their potential
adverse impact. Such operators shall be required to take prompt and effective
response action to environmental emergencies arising from their respective
activities.
The liability regime to be created by Annex VI is very similar to that under the
1992 Civil Liability Convention which governs liability for spills from oil tankers.
An operator who fails to take prompt and effective response action shall under the
Annex have strict liability for the costs of response action taken by States parties. He
will have only very limited defences, namely that the emergency was caused by an
act necessary to protect human life, a natural disaster of an exceptional character or
an act of terrorism. The operator shall cover his liability by insurance. He is entitled
to limit liability to an amount determined on the basis of the tonnage of his vessel.
60
The Annex shall not affect the right to limit liability under any applicable limitation
of liability treaty, provided the limits under such a treaty are no lower than those set
out in the Annex. Pursuant to the Annex a fund should be established to provide for
the reimbursement of reasonable and justified response costs incurred by a State
party, but there is no indication of how this fund would be financed or how it would
operate.
61
Also as regards the Antarctic region, pollution response would be very difficult
and costly due to the remoteness of the area and the severe climatic conditions. For
this reason, and in view of the operator’s fairly low limitation amounts under the
Annex, it is unlikely that the amount available would be sufficient to cover the costs
of response to a major oil spill. It would be very useful, therefore, if, as envisaged in
the Annex, a fund could be established that would pay additional compensation,
when required. A positive factor is, however, that the use of heavy fuel oil as fuel or
the carriage of such oil as cargo is prohibited in the Antarctic which should prevent
spills of such oil that normally give rise to very costly response operations.
62
There are also other treaties that are relevant for the protection of the environment
in the polar regions. Suffice to mention the 1990 Convention on Oil Pollution
Preparedness, Response and Cooperation (OPRC), the 2000 Protocol to the OPRC
on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous
and Noxious Substances (OPRC—HNS Protocol), the 1989 Convention on Salvage
60 These limits are identical to those laid down in the 1976 Convention on Limitation of Liability for
Maritime Claims as amended by the 2002 Protocol thereto.
61 For an analysis of the issues relating to civil liability see CMI International Working Group on
polar shipping, (2017).
62 MARPOL Annex I, Regulation 43.
What Challenges Lie Ahead for Maritime Law?
273