PREVENTION AND COMPENSATION OF MARINE POLLUTION DAMAGE RECENT DEVELOPMENTS IN EUROPE, CHINA AND THE US MICHAEL G. FA URE AND JAMES HU (EDS.

Transcription

1 PREVENTION AND COMPENSATION OF MARINE POLLUTION DAMAGE RECENT DEVELOPMENTS IN EUROPE, CHINA AND THE US MICHAEL G. FA URE AND JAMES HU (EDS.) KLUWER LAW INTERNATIONAL

2 Michael Faure and James Hu FOREWORD I 1 Defining the Problem i 2 Project History iii 3 Methodology iv 3.1 Legal Multidisciplinary iv 3.2 Comparative Approach v 3.3 Law and Economics v 3.4 Case Studies v 4 Framework of the project vi 5 topics vi 6 Structure of the Presentation vii 7 Contributors vii 8 Acknowledgements vii TABLE OF CONTENTS LIST OF CONTRIBUTORS LIST OF ABBREVIATIONS IX XXIII XXV Part I: Prevention and Sanctioning of Marine Pollution Damage Wang Hui RECENT DEVELOPMENTS IN THE EU MARINE OIL POLLUTION REGIME 1 1 Introduction 1 2 Basic framework of EU marine oil pollution legislation : First Set of Actions The 1978 Resolution: Start of Community Action The 1990 Resolution : Second Set of Actions The 1993 Communication Directive 93/75/EEC Council Regulation 2978/ The 2000 Decision: Legal Basis for Community Action Post Erika & Prestige Erika I and II Packages Post-Prestige New Challenges for the Enlarged EU 7 3 Specific issues 7

3 3.1 Port State Control Background - Paris MOU on Port State Control Directive 95/21/EC Erika I-Directive 2001/106/EC Prestige Notification/Report System Directive 93/75/EEC Erikall Classification Society Council Directive 94/57/EC Commission Directive 97/58/EC Erika Prestige Single Hull Tanker International v. US Regimes on Single Hull/Double Hull Tankers Council Regulation 2978/ Erika I - Regulation 417/ Prestige Liability and Compensation Post-Erika Erika I Proposals ErikaIIProposals Post-Prestige: The 2002 Communication & 2003 Proposal Limitation of Liability Erika The 2002 Communication The 2003 Proposal Definition of Pollution Damage Balance of Responsibilities Concluding remarks 22 List of References 24 Mark A. Cohen OIL POLLUTION PREVENTION AND ENFORCEMENT MEASURES AND THEIR EFFECTIVENESS: A SURVEY OF EMPIRICAL RESEARCH FROM THE US 25 1 Introduction 25 2 Oil Spill Prevention and Enforcement Mechanisms in the US 25 3 Economic Theory of Oil Spill Prevention and Enforcement 27 4 Empirical Evidence on Oil Spill Prevention and Enforcement 31 5 Concluding Remarks 36 List of References 38

4 xi Giinter Heine MARINE (OIL) POLLUTION: PREVENTION AND PROTECTION BY CRIMINAL LAW - INTERNATIONAL PERSPECTIVES, CORPORATE AND/OR INDIVIDUAL CRIMINAL LIABILITY 41 1 Introduction 41 2 Problems and Shortcomings in International Laws of Marine Pollution General Questions Jurisdiction Technical Safety, Control Management, Compensation Compensation Shortcomings The Need for Reform 45 3 Combating and Preventing Marine Pollution Through Criminal Law International Frameworks: Opportunities and Limitations Criminal Liability: Shortcomings of Individual Responsibility Corporate Criminal Liability Approaches by an International View Sanctions 53 4 Summary and Concluding Remarks 54 List of References 57 Thomas Richter INTERDEPENDENCIES BETWEEN CRIMINAL LAW AND OIL POLLUTION REGULATION IN CHINA 61 1 Initital Position in China Marine Oil Pollution in the Chinese Reality Economic Development and Energy in China Marine Oil Pollution and Focus of the Report 65 2 The Legal Milieu International Law National Law: Oil Pollution Regulations The Relevant Legislation Administrative Sanctions and Other Forms of Sanctions 67 3 Approach of the Criminal Law Preconditions Development of Crimes against the Environment Crimes having to do with Oil Pollution Art. 338 PL (Considerable Accident with Environmental Pollution) Art. 408 PL (Misconduct in Office while Supervising and Controlling the Environment) Art. 136 PL (Trouble with Dangerous Objects) 71 4 Interdependencies between Environmental Criminal Law and Oil Pollution Regulation General Remarks Dependence of Criminal Law on Administrative Regulation 73

5 xii TABLE OF CONTENTS Function Form Integration in the Structure of Criminal Law MensRea False Allowances 77 5 Conclusions Conclusion on the General Interdependencies between Criminal Law and Environmental Law Conclusion on the Interdependencies between Criminal Law and Oil Pollution Regulation 79 List of References 80 Chen Xuebin JURISDICTION OF THE PEOPLE'S REPUBLIC OF CHINA OVER POLLUTION FROM VESSELS IN ITS EXCLUSIVE ECONOMIC ZONE 83 1 Introduction 83 2 Legal Resources for China to exercise its Jurisdiction 84 3 Substantive Requirements for China to exercise its Jurisdiction 86 4 Procedural Requirements for China to exercise its Jurisdiction 89 5 Jurisdiction exercised by China in Civil Proceedings 91 6 Revision of Marine Environment Protection Laws 93 7 Conclusions 95 List of References 96 Part II: Compensation of Marine Pollution Damage: Case Studies Etty R. Agoes INDONESIA'S LAWS AND REGULATIONS CONCERNING POLLUTION OF THE SEA BY OIL: CASE STUDIES ON COMPENSATION FOR OIL POLLUTION DAMAGES 99 1 Introduction 99 2 Institutional Arrangements Non-Governmental Organizations Environmental Legislation in Indonesia The 1982 UNCLOS (as ratified by Law No. 17 of 1985) and the Marine Environment IMO Conventions, as ratified by Presidential Decrees of 1978,1986 and Relevant National Laws and Regulations Law No. 6 of 1996 on Indonesian Territorial Waters Law No. 23 of 1997 concerning the Management of the Living Environment 105

6 xiii Government Regulation No. 19 of 1999 on Marine Pollution Control Law No. 21 of 1992 on Shipping Decree of the Minister for Communication No. 86 of 1990 on the Prevention of Pollution of Oil from Vessels Law No. 22 of 2001 on Oil and Gas Law No. 22 of 1999 on Regional Government Other Laws and Regulations Problems in implementing Environmental Legislation Government Agencies Department of Marine Affairs and Fisheries Regional Initiatives Draft National Contingency Plan Cases involving Pollution of the Sea by Oil The Nagasaki Spirit Marine Pollution Casualty The MT Natuna Sea Oil Spill The MT King Fisher Incident Conclusion 116 List of References 117 Marc A. Huybrechts and Katrien N. Van Damme PROTECTION OF THE MARINE ENVIRONMENT UNDER BELGIAN LAW Introduction Contents of the Belgian Statute Marine Environment Importance of the North Sea and the Risk of Pollution The Belgian Statue Marine Environment General Approach Field of Application Aim and Basic Principles Prevention and Avoidance of Damage to and Disruption of the Marine Environment Damages to and Disruption of the Marine Environment Damage to the Marine Environment Disruption of the Marine Environment Compensation Who has the Right to claim for Compensation? Limitation of Liability Compensation: Restoration in Kind? Bail or Guarantee Declaration Pollution in Practice Air Surveillance by the Management Unit of the North Sea Mathematical Models (MUMM) Reception Facilities and Port State Control North Sea Disaster Plan and Places of Refuge Legal Aspects: Judicial Proceedings 131

7 xiv TABLE OF CONTENTS 5.5 Future Developments: Zero Tolerance! Maximize the Chances of Apprehension: the Introduction of Unmanned Cameras Referee Magistrate North Sea Active International Cooperation Equipment Compensation for Disruption of the Environment Conclusion 134 List of References 135 James Boyd COMPENSATION FOR OIL POLLUTION DAMAGES: THE AMERICAN OIL POLLUTION ACT AS AN EXAMPLE FOR GLOBAL SOLUTIONS? Introduction OPA and US Natural Resource Damages Law What is a Natural Resource Damage? Common Law Foundations Administrative Issues Calculating Damages The History of NRD Assessment The Challenge of Ecosystem Service Assessment The Politics of NRD Damages: Lost Benefits Versus Replacement Cost NRD Claims - Scale and Frequency Financial Assurance's Role in Compensation and Deterrence Conclusion 160 List of References 161 Maria Paz Garcia Rubio THE PRESTIGE CASE. INTERNATIONAL AND SPANISH LEGAL REGIME FOR COMPENSATING DAMAGE Raising the problem General Overview of the System of Civil Liability as a Mechanism for Compensating Environmental Damage International Framework. International Convention on Civil Liability for Oil Pollution Damage and International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage The Spanish System of Civil Liability and its Application in the Prestige case The Royal Decree-Law 4/2003, of 23 June Legal Framework of the Agreement between State and Victims regulated in the Royal Decree-Law 173

8 XV 5.2 Subjective Framework. The Victims Waiving to the Claims by the Victims Final Note 176 List of References 178 Part III: Compensating Marine Pollution Damage in China Han Lixin and Guan Zhengyi THE ENFORCEMENT OF INTERNATIONAL CONVENTIONS FOR THE PREVENTION OF POLLUTION FROM SHIPS AND COMPENSATION FOR POLLUTION DAMAGE IN CHINA Introduction Brief Introduction to the International Conventions for the Prevention of Pollution from Ships and Compensation for Pollution Damage to which China has acceded : The Main Measures of enforcing International Conventions Adoption Transformation Mixture of Adoption and Transformation The Current Status Quo for the Application of International Conventions on the Prevention of Pollution from Ships and for Compensation for Pollution Damage in China The Existing Regulations for the Application of Conventions in China China's Practice in Implementing the Conventions The Current Status Quo for the Application of International Conventions on the Prevention of Pollution from Ships and for Compensation for Pollution Damage in China in Practice Suggestions on the Application of International Conventions 189 List of References 191 James Hu and Yang Bo APPLICATION OF LAW IN CIVIL LIABILITY FOR OIL POLLUTION DAMAGE CAUSED BY COASTAL VESSELS IN CHINA Introduction Diversity of Views regarding Application of Law Application of CLC Application of Civil Law Application of the Maritime Code Application of the CLC The Application of International Conventions in China Generally 195

9 xvi TABLE OF CONTENTS 3.2 Non-applicability of CLC to Cases without Foreign Elements Application of the CLC to Coastal Vessels involving Foreign Elements Analysis on Views in Favour of the Application of the CLC to Cases without Foreign Elements By Virtue of the Administrative Regulations on Preventing Marine Pollution from Ships By Virtue of Governmental Notices for Implementing the 1969 CLC Interest-orientated Consideration Applicable domestic laws Common Features of Application Priority Issues The Necessity of a Specific Legal Regime Conclusions 204 List of References 205 Zhao Yuelin, James Hu and Wang Hua A STUDY OF THE LEGAL NATURE OF COMPULSORY CLEAN-UP COSTS UNDER CHINESE LAW Introduction Compulsory Clean-up Acts as Compulsory Administrative Measures Legal Nature of the Compulsory Clean-up Costs borne by Responsible Parties Compulsory Clean-up Costs as Costs of Substitution of Performance under Administrative Law Compulsory Clean-up Acts as Indirect Compulsory Acts Compulsory Clean-up Costs as those of Substituted Performance of Carrying out Compulsory Administrative Measures Tortious Liability under the Civil Law Compulsory Clean-up Costs within Tortious Liability Compulsory Clean-up Costs within the Scope of Civil Compensation Liability Contribution to the Realisation of Uniformity of Fairness and Efficiency The International Tendency to treat Payment of Compulsory Clean-up Costs as Civil Liability Conclusions 220 List of References 221 Ma Jing-jing and Du Jiang DISCUSSION ON THE NATIONAL CLAIM SYSTEM FOR OIL POLLUTION DAMAGE FROM SHIPS Introduction 223

10 xvii 2 The Need to set up the National Claim System for Oil Pollution Damage caused by Ships Establishment of the Subject of the National Claim for Oil Pollution Damage from Ships Qualification of the Country to propose the Oil Pollution Claim Exercise by the Administrative Authority of a Right to file Claims on behalf of the Country Administrative Authority Entitlement to bring an Action as Trustee of National Property Equality of the Administrative Authority as a Civil Subject in Claims for Damages from Oil Pollution Practice in National Claims of Oil Pollution Damage from Ships The Scope of a National Claim System for Oil Pollution Damage from Ships Compensation for the Clean-up Charges Compensation for Pure Economic Loss Punitive Damage Conclusion 238 List of References 239 Chen Pingping A STUDY ON THE TYPES OF LIABILITY OF THE INSURER FOR OIL POLLUTION AND THAT OF THE PARTY LIABLE Introduction Presentation of the Problem Relative Concepts of Liability Insurance Origin and Development of Liability Insurance Substitute Liability for Compensation of the Liability Insurer Victim's Right of Direct Action Doctrine of Original Acquisition (Doctrine of Statutory Rights) The Doctrine of Payment without Evasion of Liability Restriction on the Insurer's Right to call on Defenses Issues Related to Compensation Liability for Oil Pollution Damage The Current Status of Legislation in Respect of Oil Pollution Damage in China The Principle of Imputation of Compensation Liability for Oil Pollution Damage The Promotion of Compulsory Liability Insurance for Oil Pollution The System of Direct Action Non-typical Joint and Several Liability between the Insurer for Oil Pollution and the Party Liable for Oil Pollution Non-typical Joint and Several Liability in the Framework of the Current Law The Legislative Trend of the Joint and Several Liability 256

11 xviii TABLE OF CONTENTS 6 Perfection of Legislation Regarding Compensation for Damages of Ship Oil Pollution The Substantive Content of the Direct Action Oil Tanker to be covered by Compulsory Insurance Establishment of a Scheme of Payment on Account Concluding Remarks 260 List of References 261 Wu Lijing and Zhang Min JUDICIAL AUTHENTICATION OF MARINE POLLUTION DAMAGES Introduction The Current System of Judicial Authentication of Marine Pollution Damages in China The Current Judicial Authentication System in China Authentication Determination System Authentication Subject System Expert Witness Selecting and Appointing System System of Judicial Authentication of Marine Pollution Damages Analysis of Objectivity and Authenticity of Marine Pollution Damages Authentication Reports Features of Judicial Authentication Essence and Features of the Authentication Report Essence of the Authentication Report Features of the Authentication Report Dualism of Subjectivity and Objectivity The Dual Tendency of Authenticity and Distortion Possibilities for the Distortion of the Authentication Report and their Removal Analysis of the Causes of Distortion Inauthentic Materials Improper Process Incorrect Theories used in Authentication Subjectivity of the Expert Witness Prevention of Authentication Report Distortion Selection and Appointment of Proper Expert Witness Strict Conformance to the Regulations and Procedural Rules Judicial Authentication Review The Role of the Authentication Report in Litigation for Marine Pollution Damages Compensation Evidential Effect of the Authentication Report Status of the Expert Witness in Litigation Conclusion 273 List of References 274

12 xix Li Zhi wen and An Shouzhi THE NECESSITY OF INCORPORATING MARINE ENVIRONMENTAL TORTS INTO THE MARITIME LEGAL SYSTEM Introduction Definition and Types of Marine Environmental Torts Characteristics of Marine Environmental Torts Categorization of Marine Environmental Torts Analysis of the Deficiency of the Status in the Civil Remedies for Marine Environmental Torts in China The Status of Civil Remedies for Marine Environmental Torts regulated by Law in China Analysis of China's current Civil Remedy System for Marine Environmental Torts, and its Deficiencies The Necessity to incorporate Marine Environmental Torts into the Marine Tort Law The Trend of expanding the Scope of Modern Marine Tort Law The Avoidance of Contradiction in the System Protection of the Legal Rights and Interests of the Parties concerned The Marine Tort Legal System is useful for the Development and Utilisation of Economic Activities at Sea The Special System of Compensation in Marine Tort Law contributes to Sufficient Compensation, and to the Development of the Ocean Facilitation of Judicial Remedies of Marine Environmental Torts Conclusions 283 List of References 284 Guo Ping and Zhao Lujun THE LEGAL PROTECTION OF THE MARINE ENVIRONMENT IN CHINA: CURRENT SITUATION AND CHALLENGES Introduction Chinese Legislation on the Marine Environmental Protection Law of Environmental Protection (LEP) Law of Marine Environment Protection (LMEP) Related Administrative Rules and Regulation concerning the Protection of the Marine Environment Administrative Regulations on Preventing Ships from Polluting Sea Areas (ARPSP) Administrative Regulation of Preventing Pollution from Dismantling and Repair of Ships Administrative Regulations on Environmental Protection on Ocean Oil Exploration And Exploitation (REPOE) Administrative Regulations on Dumping Wastes at Sea (RDW) Administrative Regulations on Preventing Ocean Pollution from Land-Source Pollutants 290

13 xx TABLE OF CONTENTS 3.6 Administrative Regulations on Preventing and Curing Ocean Pollution from Coastal Construction Projects Implementing Rules on Ocean Administrative Penalty Relations and Existing Problems between Laws, Administrative Regulations and Rules on Marine Environment Protection Relations between Laws, Administrative Regulations and Rules on Marine Environment Protection of China Problems existing in Laws, Administrative Regulations and Rules on Marine Environment Protection Preliminary Considerations and Methods to solve the Problem Perfecting the Relevant Legislation Organizations and Forms Promoting the Legal Effect Level of the Department's Regulations and Rules Conclusions 298 List of References 299 Wei Zhije and Song Ruqing RISK ANALYSIS OF NOXIOUS LIQUID SUBSTANCES TRANSPORTATION BY WATER IN THE YANGTZE DELTA AND THE RESEARCH OF ITS COUNTERMEASURES Introduction Analysis of the Risk in NLS Transportation by Water in the Yangtze Delta Existing Conditions in NLS Transportation in the Yangtze Delta Status of NLS Pollution Accidents in the Yangtze Delta Development Trend in NLS Carriage in the Yangtze Delta Risk Analysis of Pollution Accident Hazards in the Yangtze Delta Countermeasures (Prevention, Salvage and Compensation) Means to Control the Occurrence of Pollution Accidents Control of the Factor of Personnel Control over the Factor of Vessels Control over the Factor of Loading and Unloading Terminals (Facilities) Control over the Factor of Environment for Navigation Control over the Factor of Administration Countermeasures of Emergency Response to Pollution Accidents Emergency Plans Information System for Emergency Response Guarantee System for Emergency Response System of Technical Support for Emergency Response Compensation Regime for Pollution Accidents Conclusions 315 List of References 316

14 xxi Michael Faure and Wang Hui FINANCIAL CAPS FOR OIL POLLUTION DAMAGE: CHINA AND THE INTERNATIONAL CONVENTIONS Introduction International Regimes Pre-1969 Regime /1971 Regime CLC Convention 1969 & Fund Convention CLC Convention Fund Convention Voluntary Schemes TOVALOP CRISTAL /1992 Regime Protocols Protocols Disappearance of TOVALOP & CRISTAL Winding up of the 1969/1971 Regime The 2000/2003 Regime The 2000 Amendments Background Amendments Supplementary Fund Protocol Civil Liability for Oil Pollution Damage in China International Conventions Effective in China CLC Convention Fund Convention Domestic Legislations in China China Maritime Code Marine Environment Protection Law Practical Issues Negative Effect on Clean-up No Compulsory Insurance for Cabotage Tankers & Low Financial Limits under Chinese Law No Compensation Fund in China Analysis Introduction Financial Caps on Tort Liability: An Economic Perspective Financial Caps Cause Underdeterrence Strict Liability versus Negligence Subsidization Effect In sum Financial Caps to Increase Insurability? Capacity as Insurability Problem Limitation of the Duty to Insure Contractual Limitations 337

15 xxii TABLE OF CONTENTS Unlimited Liability to Control Moral Hazard Financial Caps to increase the Insurability of Oil Pollution? A Duty to seek Insurance Coverage China Concluding Remarks 340 List of References 344 Part IV: Comparative Conclusions Michael Faure and James Hu COMPARATIVE CONCLUSIONS Introduction Prevention Monitoring and Sanctions The International Compensation Regime and the National Application Compensating Marine Pollution Damage in China Damage Assessment, Claims Handling and Insurance Results Policy Look Forward 358