obstacles was posed by the lack of contributing cargo reports upon ratification of the
1996 Convention and annual submissions thereafter.
23
The singular purpose of the Convention is to provide compensation for damage
caused by the carriage of HNS by sea.
24 It is to ensure provision of adequate, prompt
and effective compensation for loss or damage suffered by persons, property and the
marine environment arising from carriage by sea of HNS. Going beyond pollution
damage, the Convention also covers other risks such as fire and explosion. Compensation is available pursuant to two tiers; the first being attributable to the
shipowner’s liability, and the second, comprising payment out of the HNS Fund
where amounts payable under the first tier are insufficient to meet all eligible claims.
The scope of the application of the 2010 Convention extends to damage caused by
HNS in the territory or territorial sea of a state party, and also pollution damage in the
exclusive economic zone of a state party. In addition, damage caused by HNS
carried on board a ship, the flag state of which is a state party is also covered. As
in the other Conventions, preventive measures are also covered.
25
The word “damage” is a defined term in the 2010 Convention which includes loss
of life or personal injury occurring on board a ship carrying HNS or outside such
ship. It also includes property damage or loss outside the ship, loss of damage caused
by contamination of the environment as well as other losses that are actionable under
the Convention. Compensation amounts available from the shipowner and the HNS
Fund are distributed among claimants in proportion to their established claims.
However, priority is granted in respect of claims for loss of life and personal injury.
26
The Convention was modeled along the lines of the CLC/Fund regime
27 and
shares some salient features with it, such as strict liability, limitation of liability,
channeling of liability, and compulsory insurance. However, there are several
dissimilarities as well, which make the HNS Convention distinctively different
from the CLC/Fund Regime. One is the dual-purpose character of the HNS Convention, namely, consideration of human health and safety in addition to the
environmental factor. This led to the use of the term ‘damage’ in the HNS as opposed
to ‘pollution damage’ which is the term used in the other two regimes governing civil
liability arising from spills of cargo or bunker carried by ships, namely the
for such payment unless the titleholder agrees to assume that responsibility. See ibid., p. 2,
paragraph 4.
23 This was resolved by requiring states to submit reports on contributing cargo as a condition of
becoming a state party to the 2010 Convention and to submit annual reports thereafter. Failure to
comply with this requirement can lead to a state party being suspended temporarily from being a
contracting state and depriving that state from claiming compensation until the reports in question
are submitted. See ibid.
24 Preamble to the 2010 Protocol.
25 Ibid, paragraph 6.
26 Ibid, paragraph 9.
27 International Convention on Civil Liability for Oil Pollution Damage, 1992, 973 UNTS 3;
International Convention on the Establishment of an International Fund for Compensation for Oil
Pollution Damage, 1992, UNTS Vol No. 1110 (p. 15).
698
J. Xu and P. K. Mukherjee
1996 Convention and annual submissions thereafter.
23
The singular purpose of the Convention is to provide compensation for damage
caused by the carriage of HNS by sea.
24 It is to ensure provision of adequate, prompt
and effective compensation for loss or damage suffered by persons, property and the
marine environment arising from carriage by sea of HNS. Going beyond pollution
damage, the Convention also covers other risks such as fire and explosion. Compensation is available pursuant to two tiers; the first being attributable to the
shipowner’s liability, and the second, comprising payment out of the HNS Fund
where amounts payable under the first tier are insufficient to meet all eligible claims.
The scope of the application of the 2010 Convention extends to damage caused by
HNS in the territory or territorial sea of a state party, and also pollution damage in the
exclusive economic zone of a state party. In addition, damage caused by HNS
carried on board a ship, the flag state of which is a state party is also covered. As
in the other Conventions, preventive measures are also covered.
25
The word “damage” is a defined term in the 2010 Convention which includes loss
of life or personal injury occurring on board a ship carrying HNS or outside such
ship. It also includes property damage or loss outside the ship, loss of damage caused
by contamination of the environment as well as other losses that are actionable under
the Convention. Compensation amounts available from the shipowner and the HNS
Fund are distributed among claimants in proportion to their established claims.
However, priority is granted in respect of claims for loss of life and personal injury.
26
The Convention was modeled along the lines of the CLC/Fund regime
27 and
shares some salient features with it, such as strict liability, limitation of liability,
channeling of liability, and compulsory insurance. However, there are several
dissimilarities as well, which make the HNS Convention distinctively different
from the CLC/Fund Regime. One is the dual-purpose character of the HNS Convention, namely, consideration of human health and safety in addition to the
environmental factor. This led to the use of the term ‘damage’ in the HNS as opposed
to ‘pollution damage’ which is the term used in the other two regimes governing civil
liability arising from spills of cargo or bunker carried by ships, namely the
for such payment unless the titleholder agrees to assume that responsibility. See ibid., p. 2,
paragraph 4.
23 This was resolved by requiring states to submit reports on contributing cargo as a condition of
becoming a state party to the 2010 Convention and to submit annual reports thereafter. Failure to
comply with this requirement can lead to a state party being suspended temporarily from being a
contracting state and depriving that state from claiming compensation until the reports in question
are submitted. See ibid.
24 Preamble to the 2010 Protocol.
25 Ibid, paragraph 6.
26 Ibid, paragraph 9.
27 International Convention on Civil Liability for Oil Pollution Damage, 1992, 973 UNTS 3;
International Convention on the Establishment of an International Fund for Compensation for Oil
Pollution Damage, 1992, UNTS Vol No. 1110 (p. 15).
698
J. Xu and P. K. Mukherjee