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13 - Smart Mixes of Civil Liability Regimes for Marine Oil Pollution

from Part III - Climate Change and Oil

Published online by Cambridge University Press:  15 March 2019

Judith van Erp
Affiliation:
Universiteit Utrecht, The Netherlands
Michael Faure
Affiliation:
Universiteit Maastricht, Netherlands
André Nollkaemper
Affiliation:
Universiteit van Amsterdam
Niels Philipsen
Affiliation:
Universiteit Maastricht, Netherlands
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Summary

The area of marine oil pollution is very interesting for the study of “smart mixes” since there are a number of combinations of instruments that are employed in this domain that are quite typical and certainly deserve further attention. There are for example interesting combinations of compensation of damage resulting from marine pollution. Such a combination consisted of a system whereby on the one hand compensation was paid via mechanisms sponsored by the private industry (CRISTAL and TOVALOP) and on the other hand compensation took place via international conventions. The just mentioned private mechanisms have meanwhile been replaced by others, but still private mechanisms intervene in the compensation of victims. Also the international conventions are at such an interesting mix in the sense that compensation is provided on the one hand via the (limited) liability of the tanker owner (based on the Civil Liability Convention – CLC) and on the other hand via the oil receivers (through the so-called Fund Convention). Without necessarily judging that this combination is “smart” it can it least generate relatively high amounts of compensation that do enable to compensate for oil pollution damage, also in relatively catastrophic cases. Other features of the compensation mechanisms which are interesting can to some extent be found in national legislation, more particularly in the US Oil Pollution Act (OPA) of 1990. An interesting feature is for example that in the OPA the limitations on liability are connected to the safety measures taken by tanker owners, which hence could provide better incentives for prevention. Moreover, differently than in the international conventions the OPA has more “mixes” between regulation and the liability regime. The financial limits on liability of the tanker owner are for example not unbreakable, but a tanker owner can no longer call on a financial cap if regulation was not followed. In the chapter these various mixes will be described and analysed and some attempts will be done to examine to what extent these combinations can be considered as “smart”. In order to do that of course particular benchmarks will be advanced. One such benchmark is whether the mechanism also contributes to prevention of accidents and hence reduces the pollution risk; another benchmark is whether the (compensation) mechanism is able to provide compensation for marine pollution damage in most cases. It will be argued that to a large extent the mixes described can indeed be qualified as “smart”. That raises obviously the question whether there are particular reasons that could be advanced for the relative success of the smart mix in this particular sector. We argue that on the one hand the fact that a variety of different states with different interests (maritime states versus coastal states) has led to a regime that balances the different interests to a reasonable extent. Moreover, we will equally argue that regional action (more particularly by the EU) has triggered further action at the international level and in that sense added to the “smartness” of the international regime. Finally it will be argued that, as the example of the US OPA shows, in some cases domestic legislation provides better solutions (in terms of smartness) than the international regime. At the policy level those interactions between the domestic, regional and international level hence provide scope for mutual learning and for policy improvement.
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Publisher: Cambridge University Press
Print publication year: 2019

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