Oil pollution

1. Oil Pollution

Oil pollution presents a great danger to the maritime world. Australian Maritime Safety Authority has researched the burning issue of the oil pollutants for the year of 2006/2007 and the result was that the 57% come as a direct result from the ship incidents, 33% the reason is unknown; shore based 6% and 4% from exploration. Deeper insight into oil pollution was not taken until the Torrey Canyon[1] disaster; which occurred in 1967.[2] A tanker carrying around 100,000 tons of crude oil has run aground in the vicinity of western coast in Cornwall, England. This was considered to be one of the largest environmental disasters of all times. The oil spill was unsuccessfully attempted to get rid of by dispersing around 10,000 tons detergent which has resulted only in creating even more of an environmental damage. The incident was finally taken care of by bombing in order to sink the remains of the ship and burn the oil spill. After that incident more serious notice of the danger of oil pollution and appropriate measures to prevent such have been put into perspective; it has became clear that the environment is in need of protection.

1.1 Post Torrey Canyon

The incident of Torrey Canyon was followed by serious of incidents such as Eleni V, Amazo Cadiz, and The Exxon Valdes etc. Oil is considered to account for nearly half of seaborne trade and acknowledged as the world's most traded asset and as such accidents are bound to occur, the measures preventing from such have became greatly needed.[3]

International Maritime Organization in agreement with shipping and oil industries produced a serious of international conventions and agreements to impose strict liability, compulsory insurance[4] etc. it was taken on a more serious level since the Torrey Canyon incident. Examples of such are CLC 1969, Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969, Tanker Owner's Voluntary Agreement Concerning Liability for Oil Pollution 1969,

the Fund Convention 1971, International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1990,

Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996…

The incident of Torrey Canyon has left the UK and the French government in an ungrateful financial situation as the pollution claims kept rising. UK was liable for three and a quarter million pounds and France for 41 million francs.[5] For governments to always be in risk of liability in pollution cases did not seem reasonable hence why the important changes were brought. Ship-owners liability insurance became obligatory with the CLC 1969[6]. CLC as well as the Bunkers Convention 2001 main goal and result was to ensure an effective payment system to the victims of pollution.[7] With compulsory insurance and direct action stated in the CLC, the status of such has been vastly improved. The strict liability insurance coverage is governed mostly by the P & I (Protection & Indemnity Clubs) as well as CLC 1969/1992/2000 and OPA 1990.[8] Measures implemented post Torrey Canyon incident give an opportunity to a justifiable compensation to the victims of pollution.

2. The Law of Torts

'The price of greatness is responsibility.'[9]

Strict liability and liability insurance are in close relation to the common law area of the law of torts. Winfield defined the law of torts as

… Tortious liability arises from the breach of a duty primarily fixed by law, this duty is towards persons generally and its breach is redresible by an action for unliqidated damages…[10]

For an occurred incident in the law of torts there needs to be a breach of duty of care, from a “reasonable man” perspective[11], the damage must be foreseeable and must not be too remote. Liability can arise upon legal consequence of act or omission, upon fault, damage occurring that is not too remote.[12] In the law of torts we differ strict liability from fault and product liability. Fault based liability requires only actus reus, moreover strict liability does not. Strict liability has been established in the case of Rylands v Fletcher per Mr Justice Blackburn

… We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequences of its escape…[13]

From the description given we can conclude that the concept of strict liability theory can be of considerate importance for the oil spill cases however, with the case of Cambridge Water Company Ltd v Eastern Counties Leatherworks Ltd[14] the principle of foreseeability must also be included. Product liability prevents the manufacturers and producers from putting unsafe products into the market flow.[15] Both fault and strict liability have been implemented by vast range of Conventions i.e. fault based in Hamburg Rules in Relation to the Carriage of Goods by Sea, Convention Relating to the Carriage of Passengers and Other Luggage by Sea; strict liability has been implemented by the CLC 1969, the FUND Convention 1971, the 1992 Protocols, OPA 1990, CERCLA.[16] The law regarding the damages and liability for oil pollution in regards to torts have been implemented in England through Merchant Shipping Act 1995 together with the The Law Reform (Contributory Negligence) Act 1945.[17]

The categories of the law of torts are substantially vast; ranging from negligence, statutory torts, defamation, intentional torts, economic torts etc. However the essay will concentrate to the notion of liability and the torts of trespass, nuisance and negligence in regards with oil pollution damages and the relevant case law.
2.1 Esso Petroleum Co Ltd v Southport Corp[18]

In December 1950, the vessel Inverpool came in a midst of extremely bad weather conditions. The master of the ship thought it was too dangerous to go back and continue manoeuvring through narrow channel. The Esso Petroleum Co claimed cracked stern produced inability to properly navigate, however they were not aware how such did occur, but they continued to navigate through the channel.

Soon the ship ran aground of a covering wall. In fear of great danger for the crew safety and for the possibility of ship breaking her back, they jettisoned around 400 tons of oil cargo from the ship for the safety purposes.

The oil accumulated on the Southport Corporations foreshore resulting in damage to it. The Southport Corporation claimed for compensation of damages in torts of trespass, nuisance and negligence for inaccurate navigation.

The court at first trial denied all of the given claims and the plaintiffs claim failed. Moreover, the Court of Appeal reversed the judgment based on the faulty equipment and ruled the defendants were liable in torts of negligence as they should have known how did the equipment become faulty; the Court of Appeal applied the principle of res ipsa loquitur[19] and did not accept the “necessity” defence . House of Lord reversed the decision to the trial court's decision stating that the plaintiffs did not claim unseaworthiness and such could not be considered because of that reason, their Lordship reinstated the decision of the trial court.

2.2 Trespass

The first principle considered by Devlin J at trial court was the notion of trespass suggested by the plaintiffs. He stated that “The trespass, alternatively the nuisance, is said to arise from the bare fact that oil was discharged on to the plaintiffs' property.”[20]

Esso's representative Mr Nelson claimed ‘two fold defence'[21]. Firstly he stated the defence of necessity as well as the defence that the plaintiffs Southport Corp. enjoyment of their property is also a subject to navigation of ships to other members of the public.[22] Devlin J supported the nuisance and trespass claim however the appelants did not succeed because of the defence of the necessity which over mounted the Soutport's claim.

Firstly to define trespass it is entering another person's land without permission, it could also mean allocating objects or projects on to the land.[23] The injury for trespass needs to be ‘direct' and ‘immediate' or it is transferred to tort of nuisance.[24] Similar with defining trespass related to oil spills it needs to be done directly and intentionally.[25] When it comes to oil spills the law is far from easy to prove, before Esso case there was no precedent as Justice Devlin stated himself.

The correlation to trespass offered by Southport's representatives as well as the Devlin J was the one of the ‘trespass to the highway'; as sea is considered to be public highway.[26] The highway concept relates to the rights of public crossing over private land. Devlin J at p.226 quoted the Tillett v. Ward[27] “the highway cannot complain of damage done by persons using the highway unless it is done negligently”[28]. Negligence in the trial court was not proven.

The precedent of highway rule we can find in the case of Harrison v Duke of Rutland[29] where it was held that the use of highway in order for use of highway to accumulate to trespassing it must be used in a different manner than the ordinary use of a highway. If we transfer that to Esso case, the shipmaster of the Inverpool it could be concluded that the shipmaster did not misuse the highway in a way not appropriate as it was just used as a right of way in amidst bad weather conditions. The shipmaster was waiting for the high tide to enter the bay.

Moreover, the weather conditions (winds and rough sea) they could also potentially claim the Act of God as a defence, beside the one of necessity and the right of way for the navigating ships; however the chances of success with that are quite slim. In the case of Nichols v Marsland[30] where extremely heavy rain falls has damaged the artificial lakes of the defendant.

These caused the lakes to over flood and as a result of such bridges on plaintiff's property were destroyed. The defendant was not held liable as such was considered to be an act of God. Nichols v Marsland[31] was however not followed in the case of Greenock Corporation v Caledonian Railway[32]. In this particular case heavy rainfall was not considered to be an Act of God and Corporation was still liable for the damage occurred. Two of the above cases are considered under the tort of nuisance however worthy of mentioning with connection with Act of God and weather conditions defence. Even though in the case of Esso the weather conditions were not as extreme.

For the trespass to occur the damage must be direct and immediate, however in the Esso case there was not direct damage on the land but on the sea adjacent to foreshore which could not be described as a direct and immediate. In the case of Lord Bernstein v Skyviews and General Ltd[33] it was held that accessing the airspace above the property being does not equal trespassing.

… This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public…[34]

In order to prove trespass Southport Corp should go in great lengths to prove that the specific alleged trespass was in fact intervening with their typical enjoyment of land. The author is of belief there was no trespass as there was no direct and intermediate damage to the land but to the adjacent sea. In support of this, there is a later case of the Bathurst CC v Saban[35]

2.3 Nuisance

Nuisance covers ‘pollution by oil, noxious fumes, interference with leisure activities, offensive smells from premises used for keeping animals or noise from industrial installations'.[36]

Public nuisance is considered to be a crime, private is considered to be part of the law of torts. Public nuisance refers to wider range of people, community as such; private nuisance refers to specific individual. Professor William Prosser differentiates nuisance from trespass as an act which is not done on the land itself, but as such still affects the enjoyment of the land.[37] Public nuisance ranges from ‘carrying an offensive trade, keeping a disorderly house, selling food unfit for human consumption, obstructing public highways, throwing fireworks about in the street and holding an ill-organised pop festival'.[38] Public nuisance can be described as ‘person's enjoyment of land, or some right over, or in connection with it'.[39]

[1] Torrey Canyon

[2] Maritime Law Christopher Hill 424

[3] Oil Pollution at Sea 2

[4] Gard Handbook 32

[5] Wu, Chao, Pollution from the Carriage of Oil by Sea: Liability and Compensation (1996), p. 9.

[6] The CLC 1969 is now replaced with Protocol 1992 and amended with Protocol 2000

[7] Pdf page 50

[8] Oil polution at sea 6

[9] Sir Winston Churchill, ‘QuoteWorld' <http://www.quoteworld.org/quotes/2827> accessed 16 May 2010

[10] 4 tort book

[11] As set out in the case of Blyth v Birmingham Waterworks Co.

[12] Tort 60

[13] Rylands v Fletcher pp 270-80

[14] Cambridge Water

[15] http://law.jrank.org/pages/10820/Tort-Law-Strict-Liability.html

[16] Oil pollution at sea 18

[17] Torts 575

[18] [1956] A.C. 218; [1956] 2 W.L.R. 81; [1955] 3 All E.R. 864; (1956) 120 J.P. 54

[19] ´ the rule that an injury is due to the defendant's negligence when that which caused it was under his or her control or management and the injury would not have happened had proper management been observed.´ http://dictionary.reference.com/browse/res+ipsa+loquitur

[20] p.233

[21] p.224

[22] 224

[23] http://www.a-level-law.com/tort/trespass_to_land/notes.htm

[24] Torts 491

[25] Pdf 83

[26] Oil pollution 13

[27] Tilett v Ward

[28] P.226 esso

[29] Harrison v Duke of Rutland

[30] Nichols v Marsland

[31] Nichols

[32] Greencock

[33] Lord Bernstein

[34] Bernstein p.448

[35] Bathurst CC v Saban

[36] Torts 503

[37] Virginia Law Review

[38] Torts 505 taken from the Att-Gen for Ontario v Organge Productions Ltd (1971) 21 D.L.R (3d) 257

[39] 508 torts