Introduction.
Oil tankers are not the only vessels that cause oil pollution damage at sea. There have been numerous heavy fuel oil spills from non-tankers as a result of escape or discharge of bunker oil from them. According to statistics of ITOPF1 for tankers only, 7% of incidents of small spills (i.e. less than 7 tonnes) and 2% with spilt quantities between 7 and 700 tonnes for the years 1974-2008 were accounted to bunkers. Inclusion of non-tankers would obviously increase this bunker spill figure. In UK2 waters only, 2,188 bunker pollution incidents have been recorded for the years 1993-2004. There have been incidents involving bulk carriers that escape of bunker oil caused significant damage to the environment and economic losses to third parties. Some of them, such as the “Kandalashka” in 1993, the “Borodinskye Polye” in 1993, and the “Cita” which ran aground off the Isles of Scilly in 1997 caused extensive environmental damage and left large amounts of uncompensated losses to their victims.
The problems associated with the cost and damages recovery following a bunker pollution incident had to do with one or more of the following reasons:
i. claimants should prove fault where a spill involved a persistent oil;
ii. the vessel was flagged in another State and it might have been difficult to enforce a judgement;
iii. there was no automatic right to pursue a claim in the State where the spill occurred;
iv. the legal costs of pursuing a claim could be prohibitive;
v. the shipowner, usually a single-ship company owning a valueless ship, had no other assets (and was usually insolvent);
vi. the registered shipowner had no insurance; and
vii. the vessel was insured but the insurer, with an insolvent shipowner unable to pay, was sheltered behind the “pay to paid” clause and/or any other policy coverage defences to avoid payment.
In response to the above problems and with the desire to fill the gap in a uniform way at international level, the IMO adopted the “International Convention on Civil Liability for Bunker Oil Pollution Damage 2001” (the “Bunker Convention”). It was developed as a preventive measure for the reduction and control of pollution to marine environment as well as a mechanism providing compensation for damage caused by bunker pollution.4 The Bunker Convention is in force from the 21st November 2008 following ratification, acceptance, approval or accession by at least 18 States, 5 of which with a combined gross tonnage in excess than 1 million.5 As on July 2009, 38 States are party to the The Bunker Pollution Convention. These are listed in the Appendix6…