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Goldie, L. F. E., Naval War College, Newport R. I., memorandum on the
IMCO international convention for oil pollution --
Applicability of Brussels civil liabilities convention to pollution
damage in the contiguous zoneHiggins, James, past president:
Letter to Senator Muskie..
Ledebur, Lawrence F., Chief, Admiralty and Shipping Section,
Department of Justice, letter to.-Letters from:
Arnold Bernstein, former owner, Red Star Lines.
T. R. Sargent, Vice Admiral, U.S. Coast Guard
IMCO CIVIL LIABILITIES CONVENTION
Relationship of Brussels Convention on Civil Liabilities for
Oil Pollution and Public Law 21-224
TUESDAY, JULY 21, 1970
Washington, D.C. The subcomittee met at 10:30 a.m., pursuant to call, in room 4200, New Senate Office Building, Senator Edmund S. Muskie (chairman of the subcommittee) presiding.
Present: Senators Muskie, Baker, and Dole. llso present: Richard B. Rovce, chief clerk and staff director; Bailey Guard, alssistant chief clerk (minority); Thomas C. Jorling, minority counsel; Leon G. Billings, Philip T. Cummings, Richard W. Wilson, Adrien Waller. and Harold H. Brayman, professional staff members.
Senator MESKIE. The committee will be in order. Today the subcommittee begins 2 days of hearings on the proposed oil pollution convention recently transmitted by the President to the Senate for ratification.
The Subcommittee on Air and Water Pollution has no jurisdiction in the ratification of this treaty and the treaty is not pending before the subcommittee. However, Senator Pell, chairman of the Subcommittee on Ocean Space of the Foreign Relations Committee, which will consider the treaty, has graciously agreed to allow the Subcommittee on Air and IVater Pollution to hold these hearings. The purpose is to compile a report and recommendation on the treaty and its relationship with Terently enacted oil pollution legislation.
The subcommittee will attempt to determine whether the treaty provides greater or lesser protection than the new U.S. satute for the I S. Government against an oil pollution incident. The subcommittee also hopes to determine whether the convention or the new law provides the greater protection for owners of American beaches and others dependent upon the coast and territorial waters for their livelihood and their recreation.
The witnesses we shall hear represent those who negotiated this agreement, those who would be affected by this agreement, and critics of this agreement. The subcommittee has no preconceptions. But it is concerned that 4 years of effort-resulting in passage and enactment on April 3 of the most restrictive oil pollution control legislation ever sent to the President--not be undercut by international convention,
and particularly not by a convention drawn before conferees completed their consideration of the legislation.
The first witness this morning is Mr. Robert E. Neuman, Assistant Legal Adviser for Politico-Military and Ocean Affairs, Department of State.
Mr. Neuman, we would like to welcome you.
STATEMENT OF ROBERT E. NEUMAN, ASSISTANT LEGAL ADVISER
FOR POLITICO-MILITARY AND OCEAN AFFAIRS, DEPARTMENT OF STATE; ACCOMPANIED BY EUGENE MASSEY, LEGAL ADVISERS OFFICE
Mr. NEUMAN. Thank you, Mr. Chairman.
Mr. Chairman, I welcome the opportunity to appear before you this morning to discuss the International Convention on Civil Liability for Oil Pollution Damage. As you know, this convention, along with the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, and amendments to the International Convention for the Prevention of the Pollution of the Sea by Oil was submitted to the Senate by President Nixon on May 20, 1970.
The two 1969 conventions are the product of the International Legal Conference on Marine Pollution Damage, 1969, held in Brussels last November. I understand that you are interested today in discussing only the 1969 Convention on Civil Liability.
In this discussion, I want to stress the importance of U.S. ratification of the convention in terms of our participation in international efforts to control and prevent pollution damage. Ratification of the Convention will bring the United States into a uniform regime of international regulation designed to compensate the victims of oil pollution, whether those victims are government or private citizens or both. Without such an international system, the regulation of marine pollution and efforts to achieve effective compensation must depend upon a multiplicity of national laws which will differ substantially in terms of the nature of liability, the amount of compensation, the area of jurisdiction, and other factors making life difficult for both the shipowner and the injured party. The convention is both evidence of and a response to the reality that the world's environmental problems require cooperative international action rather than unilateral regulation.
It is not so much a question of whether the Convention is more or less desirable than any piece of domestic legislation, but rather whether we are prepared to limit the protection afforded to the victims of pollution to those areas within the reach only of national legislation. Without the Convention, U.S. law will not reach vessels responsible for oil spills on the high seas. Without the Convention, U.S. citizens cannot participate in an international system of financial responsibility assuring that funds for compensation will be available. Without the Convention, U.S. citizens cannot rely on the civil jurisdiction of our courts over foreign parties. Without the Convention, U.S. shipowners must face a different set of rules and liabilities wherever they operate. Without the Convention, we must be prepared to face the prospect of
ever widening claims of national jurisdiction for the ostensible purpose of pollution control in international waters.
Keeping in mind these considerations, I would like now to explore the background of the Brussels Convention, to summarize its provisions, and to discuss in a general way the relationship between the Convention and the provisions of the 1970 Water Quality Improvement Act (Public Law 91-224).
The Torrey Canyon disaster of 1967 focused the attention of the international maritime community and, indeed, of the world on the hazards to the environment created by the expanding volume of petroleum shipped on the world's oceans and by the use of larger tankers to accommodate these shipments. As a result, IMCO began serious consideration of the general area of marine pollution in an effort to prerent and minimize pollution damage and to establish adequate provisions for compensation of injured victims in cases where damage does occur. In the area of civil liability, IMCO recognized the necessity of establishing a uniform and equitable regime to govern compensation. The Governments represented in IMCO, including the United States, believed that without a uniform regime there could be no assurance that adequate compensation would in fact be available.
With the support of the international community, IMCO moved expeditiously, preparing draft conventions and calling an International Legal Conference in Brussels in 1969 to consider the question of marine pollution damage.
The details of the negotiations during that conference are contained in the U.S. delegation report submitted to the Secretary of State on December 30, 1969. A copy of this report has been made available to the subcommittee.
THE EFFECT OF THE CONVENTION
Without an effective international regime, the burden of oil pollution falls on the coastal state and its citizens. This burden is more properly and rightfully borne by those who engage in and benefit from the maritime transport of oil. At the Brussels Conference, there was general agreement that one of the main objectives was to design a Forkable international system to transfer the economic burden of oil pollution damage from the coastal state and its citizens to those who engage in and benefit from the shipment of oil. Their efforts resulted in the Brussels Civil Liability Convention. The heart of the convention is a regime of strict liability, enforced by a scheme of effective financial responsibility, with high limits of liability. Let me summarize these provisions. (1) Strict Liability on the Vessel
The first element of the convention is the establishment of strict liability on the vessel carrying oil. This approach appears to be the most likely to achieve the two primary objectives of the United States: (a) to eliminate or reduce pollution damage, and (b) to provide a convenient and efficient method for compensating victims when damage does
occur. The assignment of liability to the vessel and the fact that the liability is strict, contribute to both these objectives.
Placing the liability on the vessel will encourage the vessel owner to make every effort to prevent oil spills. Since he has custody of the oil during the risk period, and he is the only person who can control the activities of the captain and crew and the maintenance of the vessel, it is desirable that the tanker owner himself bear the economic burden when his vessel is involved in an oil pollution incident. Moreover, marine insurers will insist that insured owners take all possible precautions.
Placing the liability on the vessel will also make the victim's task of obtaining compensation easier. The ownership of an oil cargo is usually divided and in fact can change during a voyage. It would be difficult and perhaps impossible for a victim to trace the cargo owner at the time of the damage and to pursue him in the courts. The diversity of ownership also makes it difficult to enforce a financial responsibility system based on cargo liability.
The fact that liability is strict should motivate vessel owners to take positive action to improve the safety of their operation. In many cases, the failure to take certain actions inight not be considered negligent, and thus liability limited to negligence would produce no incentive to institute preventive measures in the tanker industry.
Strict liability will also benefit the victim. He will know automatically against whom to proceed. In cases involving the negligence of third parties, for example in collision cases, the victim may proceed directly against the tanker owner or his insurer without waiting for an eventual determination of responsibility between the tanker and the third party:
Because we believed that strict liability on the vessel was the best method of achieving our objectives, the United States strongly supported this position during the conference, and that position ulti mately prevailed.
I have been referring up to this point to strict liability, which I use to indicate non fault liability, subject to some limited defenses. I should note here that the convention provides for only three defenses on the part of the shipowner:
(a) The damage was caused by an act of war or a natural phenomenon of exception, inevitable, and irresistible character, that is, an act of God;
(6) The damage was wholly caused by an act or omission done with intent to cause damage by a third party; or
(c) The damage was wholly caused by negligence or other unlawful act of any government or other authority responsible for the maintenance of light or other navigational aids in the exercise of that function. In all cases, the vessel owner bears the burden of proof. The convention does not allow exoneration in cases where damage was caused by the negligence of a third party, although it does preserve the rights of the vessel owner to proceed
against such third party. (2) Financial Responsibility
The second significant aspect of the convention is that it requires tanker vessels to maintain proof of financial responsibility, and to carry a certificate attesting thereto as a condition for entry into ports