Marine Pollution Damage in Australia: Implementing the Bunker Oil Convention 2001 and the Supplementary Fund Protocol 2003
Gaskell, Nicholas, Forrest, Craig, University of Queensland Law Journal
The grounding of the bulk carrier Pasha Bulker on Nobbys beach, Newcastle in June 2007 has again highlighted the risk from shipping posed to Australia's extensive and environmentally fragile coastline. (1) Whilst a pollution incident was averted in this case, spills from shipping in other states, such as the Nakhodka spill off Japan in 1997, (2) the Prestige spill off France in 1999, (3) the Erika spill off Spain in 2003 (4) and the Hebei Spirit spill of South Korea in 2007, (5) have required the constant monitoring and updating of the international regulatory regimes designed to prevent such incidents occurring and to provide compensation when they nevertheless do occur. Two recent additions to this international regulatory system are the Protocol on the Establishment of a Supplementary Fund for Oil Pollution Damage, 2003 (6) and the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001. (7) In 2008, Australia gave effect to these instruments, enacting the Supplementary Fund Protocol via the Protection of the Sea Legislation Amendment Act 2008 (Cth), (8) while the Bunker Oil Convention is given effect through the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth), (9) and the Protection of the Sea (Civil Liability For Bunker Oil Pollution Damage) (Consequential Amendments) Act 2008 (Cth). (10)
The purpose of this article is to analyse these international instruments, describe how they came about and explain the Australian implementation of them.
A Changes in the Focus of Maritime Liability Rules
From the late 19th century, the main driver to unify international maritime law was the Comite Maritime International (CMI), (11) a non-governmental organisation with representation from all aspects of the shipping industry, but mainly representing private commercial interests rather than governments. Most of the focus was therefore on private law issues which affected those interests and where uniformity brought simplicity and ease of enforcement. In private maritime law, justice and fairness in the wider sense often come second to matters such as commercial certainty. The primary focus has traditionally been on the commercial position of the shipowner, whether as carrier of goods under a carriage contract, or as a party liable for collisions or other incidents. The sinking of the Titanic in 1912 led to an increasing international focus on improving safety in order to protect the lives of crew and passengers. (12)
The biggest catalyst for international change was the creation after World War II of the International Maritime Organization (IMO). (13) Since that time, two obvious influences can be discerned. First, that the regulatory function has become a more significant driver than the commercial interests, creating public law obligations on states to enact standards which are usually enforced through the criminal law. Secondly, this work has been motivated and carried out by states, not by private bodies or through self-regulation. That factor alters the dynamic because states will be more likely to think of victims rather than commercial interests. Nevertheless, shipowners have had a major influence at IMO; not simply because IMO membership fees are payable by tonnage, but also because many states have, or wish to have, significant commercial fleets (whether for reasons of taxation, employment, prestige or general economic and political power). Debates at the IMO are heavily influenced by the impact of regulation on commercial shipping.
The 40 years since the oil tanker Torrey Canyon sank in 1967 (14) saw a further major change in the focus of international maritime law to protect a newer category of victim, the environment. Part XII of UN Convention on the Law of the Sea 1982 deals specifically with this new 'victim'. While much of this Part is naturally concerned with prevention issues and enforcement, rather than compensation, art 235 imposes obligations on states to ensure that their legal systems offer recourse mechanisms, including prompt and adequate compensation. …