International Law Studies On Vessel-source Oil Pollution Damage

With the rapid development of the oil industry and the shipping industry, theincidents caused by spills of oil from ships often occur and the vessel-source oilpollution damage poses a serious threat to the ocean environment. Due to theenhancing awareness of the global environmental protection, the vessel-source oilpollution damage becomes a problem related to all human beings instead of a partialand regional legal issue. With the mission Make Shipping Safer, Make Ocean Cleaner,the International Maritime Organization (IMO), together with the relevantinternational organizations and nations all over the world, has formulated a series ofpublic international laws and domestic laws on vessel-source oil pollution damage.This dissertation examines the legal system of international vessel-source pollutiondamage by studying the relevant international conventions, foreign and domesticlegislation as well the legal practice with the methodology of theoretical analysis andempirical research, in which the fundamental issues of the system are emphasizedsuch as the scope of application, the historic evolution, liability subject, principle ofliability, exemption, extent of compensation and limitation of liability etc. In themeantime, with the comparative study on international regulations and legislation ofeach nation, plus the author’s own maritime working experience during the recentyears, the dissertation investigates China’s current situation and provides detailedsuggestions to improve our relevant legislative system and legal practice. Composedof six chapters with160,000characters not including the spaces, this dissertationcovers the fundamental theoretical topics and the major cases on the vessel-source oilpollution damage. Chapter I analyzes several core concepts of the vessel-source oil pollutiondamage regime and its historic evolution. Section I clarifies core concepts such asship, vessel-source oil pollution and oil pollution damage etc. referenced tointernational convention, legislation of each nation and the relevant legal practices,which identifies the international conventions and national laws that can be appliedfor the later chapters. Section II divides the evolution of the internationalvessel-source oil pollution damage regime into three periods, they are the beginningperiod from1954to1971, from1972to1991when it developed, the maturing periodfrom1992till today. With the comparative law analysis on the vessel-source oilpollution damage legal regimes between the developed countries in shipping industrysuch as United States, Canada etc. and our country, the author thinks that we lack thelegislation specialized in this field and the legislation concerning the damage liabilitycaused by ships carrying non-persistent oil is almost in blank state. Our legislation inthis field needs to be improved.Chapter II is about the liability subject which according to the rights andresponsibilities can be divided into the claimant and the responsible party. Section Iintroduces the claimant regime. With the development of the liability regime for thevessel-source oil pollution damage, the claimant tends to be diversified who from asingle natural person or institution that suffers the damage becomes a system wherethe general claimant, the public welfare claimant and the subrogation claimant parallelto each other. Section II explores the regime for subject of compensation who in orderto balance the interest of the victim, the ship-owner and the cargo owner, is structuredwith three tiers: the ship-owner and its insurer, the compensation fund and thesupplementary compensation fund. The three-layered compensation regime isestablished according to CLC/FUND Conventions: The first tier is the ship-owner andits insurer who is the first to be responsible for the oil pollution damage. TheInternational Oil Pollution Compensation Fund1992provides the second tiercompensation for the victims; and the supplementary fund the third tier protection.This compromising solution that offers a decentralized liability regime in which theship-owner and the cargo owner share the responsibility for the damage is adopted bymost of the countries over the world.Chapter III discusses the principle of liability and its exemptions. Section Idescribes the vessel-source oil pollution damage categorized as a special infringementact which abandons the components of subject fault required by the traditional civil law and adopts the principle of liability without fault. Under the principle of liabilitywithout fault, the regime for compensation of limitation is applied; while the principleof liability with fault is adopted under special situation when the plaintiff has theproof that the infringer makes subjective fault for the happening or the expansion ofthe damage, therefore the infringer shall still undertake the tort liability and payaccording to the real loss. Apart from that, as for the oil spill incidents caused by shipcollision, the principle of exemption of liability for vessels without any escape ordischarge of oil applied by the international oil pollution damage regime has proved tobe feasible in theory and practice for half a century. Section II discusses theexemptions of liability. In order to solve the damage in fair and reasonable condition,the compensation regime not only applies the principle of liability without fault butalso makes restriction on the scope of liability, namely to set the exemptions in legalform. This section probes into the exemptions in international and national legislation,insurance clauses and the regulation of the oil pollution fund, and with the study onthe cases about international oil pollution fund, offers suggestion for the imperfectionof our country’s relevant legislation.Chapter IV studies the scope of compensation and its implementability which arethe two primary elements to be considered for damage compensation. The scope ofcompensation is discussed in Section I which explains the special components forvessel-source oil pollution as a special infringement act for which the where and whenof the spill incident has a decisive impact on the application of internationalconvention as well whether the final compensation can be implemented. Section II toIV respectively gives analysis on the possibility of compensation for the controversialissues in practice such as cleanup cost, property and economical loss and oceanenvironmental damage from the perspectives of international convention and nationallegislation in each country, cost calculation and reference for our country. The authoroffers suggestion for the imperfection of our country’s legislation for the above threecontroversial issues under the guidance of International Maritime Organization’s TheGuidance on Compensation for Oil Pollution Damage, Claim Manual by InternationalOil Pollution Fund and the relevant cases in each country.Chapter V explains how the regime for limitation of liability for vessel-sourceoil pollution damage comes into being and its current trend with the thorough analysisof the conflict and coordination of every legal relationship under the regime. InSection I the author introduces the background, conditions for the loss of liability limitation and the regulation upon limitation of compensation enacted by internationallaw and domestic law as well as its development. As the numbers of vessel-source oilpollution incidents are growing, the trend indicates that international law as well eachnation’s domestic law has raised the limitation of compensation. Section II focuses ondissecting the relations between limitation of liability for vessel-source oil pollutiondamage and other legal relations, from which the most controversial issues in the legalpractice are studied such as the relations between different sorts of compensation,between limited creditor’s right and non-limited creditor’s right, between maritimelimitation of liability for compensation and the maritime lien, also between maritimelimitation of liability for compensation and oil pollution liability insurance.Based on the discourse towards the core issues of vessel-source oil pollutiondamage in the previous chapters, Chapter VI explores the reconstruction of theliability regime in our country. Section I describes the structuring of the generalregime of vessel-source oil pollution damage in our country. Having conducted asurvey on oil spill incidents in our country during the recent years as well predicted itstrend, the author summarizes four major problems in our country’s legislation,proposes the preliminary idea that we should formulate vessel-source oil pollutiondamage law which conforms to the realistic situation in our country, and does thefeasibility study on our joining the1992Fund Convention on International OilPollution Damage. Section II is about the improvement of our liability regime forvessel-source oil pollution damage. In the author’s view, we may stay in line with ourcurrent situation and learn and select the advanced legislative concepts frominternational convention as well the developed countries in order to formulate andperfect our own relevant legislation which includes five aspects: the establishment ofthe public claim regime for vessel-source oil pollution damage; the modification ofdamage insurance system; the operation of damage compensation fund and theincrease in limitation of compensation.