Civil liability for oil pollution damage: Bunkers Convention

KEY POINTS

Compatibility with EU rules

• Articles 9 and 10 of the Bunkers Convention affect the rules laid down in Council Regulation (EC) No 44/2001 (now Regulation (EU) No 1215/2012) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
• The convention does not stipulate an international organisation such as the EU to sign, ratify or accede to it.
• EU countries, with the authorisation of the EU, must therefore sign, ratify or accede to the convention in the interest of the EU. When they do so, they must also make a declaration whereby they commit to applying Regulation (EC) No 1215/2012 in their mutual relations.

Scope

The convention applies to:

• pollution damage caused in the territory, in the territorial sea and in the exclusive economic zone or equivalent in any country which is a party to the convention;
• measures taken to prevent or minimise such damage.

It does not apply to warships, naval auxiliary or other ships owned by a country. However, any country which is a party to the convention may decide to apply it to such ships.

Liability of the shipowner

The shipowner at the time of an incident is liable for all pollution damage caused by its bunker oil. However, the shipowner will escape liability if they can prove that:

• the damage resulted from an act of war, hostilities, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
• the damage resulted from an act or omission with the intent to cause damage by a third party; or
• the damage was wholly caused by the negligence of any government or other authority responsible.

Compulsory insurance or financial security

• Owners of ships with a gross tonnage greater than 1,000 tonnes and which are registered in a country which is a party to the convention must maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover their liability for pollution damage.
• A certificate attesting that insurance or other financial security is in force is issued to each ship by appropriate authority of a country and must be carried on board a ship. A copy must also be deposited with the authorities who keep the ship’s registration.

Jurisdiction and enforcement of judgments

• Judicial action for compensation against the shipowner, insurer or other person providing security must be brought in the country or countries where the pollution damage was caused.
• The convention defines the conditions under which a judgment given by a court in one country which is a party to the convention can be recognised or enforced in another.

Time limits

• Rights to compensation under this convention will lapse if no action is brought within 3 years from the date when the damage occurred.
• No action can be brought more than 6 years from the date of the incident which caused the damage.