Abstract
In order to facilitate the discussion of a convention which limits the liability of classification societies, the system of limitations will initially be analysed, and it will be scrutinised whether classification societies are protected by these regulations when performing their private duties such as issuing classification certificates. The limitation of liability in shipping generally applies only to the exercise of private activities, not of public ones. Furthermore, it shall be discussed whether a convention that would limit the liability of classification societies for the performance of private duties could be justified, and its principles will be determined. Sections A to D mainly relate to the private functions of a classification society. In section E, it will finally be considered whether such a convention should relate only to private classification or also to a society’s public functions, i.e., the performance of statutory surveys.
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References
Faure/ Hui, ‘The International Regimes for the Compensation of Oil-Pollution Damage; Are they Effective?’, 12 RECIEL 242, at 250 (2003); Lammers, ‘International Responsibility and Liability for Damage Caused by Environmental Interferences’, 31 Envtl. Pol’y & L. 94, at 100 (2001).
Rémond-Gouilloud, ‘The Future of the Compensation System as Established by International Convention’ in De La Rue, Liability for Damage to the Marine Environment (1993), at 95.
Abecassis/ Jarashow, Oil Pollution from Ships (1985), § 9–29, at 185; Benedict, On Admiralty (2002), vol. 3, at 1–31; Donovan, ‘The origins and development of limitation of shipowner’s liability’, 53 Tul.L.Rev. 999, at 1000 (1979); Eyer,’ shipowner’s Limitation of Liability-New Directions for an Old Doctrine’, 16 Stan.L.Rev. 370, at 370 (1964); Gauci, Oil Pollution at Sea, Civil Liability and Compensation for Damage (1997), at 157; Özçayir, Liability for Oil Pollution and Collisions (1998), 299; The Main v. Williams, 152 U.S. 122, 14 S.Ct. 488, 38 L.Ed. 381 (1894).
Holmes, The Common Law, at 16 (1881); Marsden/Gault, Marsden on collisions at sea (2003). para. 172.
Holmes, The Common Law, at 10–16 (1881).
Özçayir, Liability for Oil Pollution and Collisions (1998), 299–300.
The Main v. Williams, 152 U.S. 122, at 126 (1894); Putnam, ‘The Limited Liability of Ship-Owners for Master’s Faults’, 17 Am.L.Rev. 1 (1883).
Grotius, De Jure Belli ac Pacis libri tres (1646/1995), at 139.
Schoenbaum, Admiralty and Maritime Law (2004), § 15-1, at 136.
Lord Mustill, ‘Ships are different-or are they?’, [1993] L.M.C.L.Q. 490, at 492.
Holmes, The Common Law (1881), 9.
Eyer, ‘Shipowners’ Limitation of Liability’, 16 Stan.L.Rev. 370, at 372 (1964); Gilmore/Black, The Law of Admiralty (1975), 818; Lord Mustill,’ ships are different-or are they?’, [1993] L.M.C.L.Q. 490, at 492; Seward, ‘The Insurance Viewpoint’ in: Institute of Maritime Law, The University of Southampton, The Limitation of Shipowners’ Liability: The New Law (1986), 161–162. Some authors appear to argue that the limitation of liability was established due to the fact that shipping was so dangerous in nature that incidents were most likely to happen. Tetley,’ shipowners’ Limitation of Liability and Conflicts of Law: The Properly Applicable Law’, 23 J.M.L.C. 585 (1992): ‘Limitation of shipowners’ liability is a universal concept amongst shipping nations and recognizes the potentially perilous nature of maritime transport.’ Similarly Seward, ibid., 166.
See Eyer, ‘Shipowners’ Limitation of Liability’, 16 Stan.L.Rev. 370, at 371 (1964) with further references; Killingbeck, ‘Limitation of Liability for Maritime Claims and Its Place In the Past, Present and Future’, 3 SCU L.R. 1 (1999).
In The Main v. Williams, 152 U.S. 122, at 126 (1894) Mr Justice Brown referred to the following Codes which were in force at the time of the decision: Argentine Code, Art. 1039; Belgian Code, Art. 216; Brazilian Code, Art. 494; Chilean Code, Art. 879; Code de Commerce (French), Art. 216; German Maritime Code, Art. 452; Italian Code, Art. 311; Code of the Netherlands, Art. 321; Portuguese Code, Art. 1345; Russian Code, Art. 649; Spanish Code, Art. 621, 622.
Eyer, ‘Shipowners’ Limitation of Liability’, 16 Stan.L.Rev. 370, at 371 (1964); Özçayir, Liability for Oil Pollution and Collisions (1998), 301–302.
Tetley, International Maritime and Admiralty Law (2002), 274.
The French Ordinance of 1681 served as a model of most of the modern maritime codes, see The Main v. Williams, 152 U.S. 122, at 126 (1894).
Selvig, ‘An Introduction to the 1976 Convention’ in Institute of Maritime Law, The University of Southampton (ed.), The Limitation of Shipowners’ Liability: The New Law (1986), at 4; Tetley, International Maritime and Admiralty Law (2002), 273.
Putnam, ‘The Limited Liability of Ship-Owners for Master’s Faults’, 17 Am.L.Rev. 1, at 5–13 (1883).
Özçayir, Liability for Oil Pollution and Collisions (1998), 303.
For the historical development of this Act see Lord Mustill, ‘Ships are different-or are they?’, [1993] L.M.C.L.Q. 490, at 496–497; Özçayir, Liability for Oil Pollution and Collisions (1998), 313–316.
See Lord Mustill, ‘Ships are different-or are they?’, [1993] L.M.C.L.Q. 490, at 498; Özçayir, Liability for Oil Pollution and Collisions (1998), 304.
Quoted in Lord Mustill, ‘Ships are different-or are they?’, [1993] L.M.C.L.Q. 490, at 496–497; compare Eyer,’ shipowners’ Limitation of Liability’, 16 Stan.L.Rev. 370, at 371 fn. 9 (1964); Steel,’ ships are different: the case for limitation of liability’, [1995] L.M.C.L.Q. 77, at 79.
Currently codified at 46 U.S.C. §§ 181–189. Initial to this Act was the decision in New Jersey Steam Navigation Company v. Merchant’s Bank (The Lexington), 47 U.S. 344 (1848). Therein a shipowner who was unaware of the nature of his cargo was held fully liable for the loss of USD 18,000 in gold coins.
See the interpretation of this Act by the Supreme Court in Norwich Co. v. Wright, 80 U.S. 104 (1871).
For further details on the different limitation provisions see Benedict, On Admiralty (2002), vol. 3, at § 4 and 21; Gilmore/Black, The Law of Admiralty (1975), ch. X.
Herber, Seehandelsrecht (1999), 332. Compare also Basedow, Der Transportvertrag (1987), 410, 494.
Amended by the Protocol to amend the International Convention for the Unification of certain Rules of Law relating to Bills of Lading (Visby Protocol), Brussels, 23 February 1968, entry into force: 23 June 1977, 1412 UNTS 127. Amended by the Protocol of 1979 to amend the International Convention for the Unification of certain Rules of Law Relating to Bills of Lading, 1924, as amended by the Protocol of 1968 (SDR Protocol), Brussels, 21 December 1979, entry into force 14 February 1984, ATS 1993 No. 23. United Nations Convention on the Carriage of Goods by Sea, Hamburg, 31 March 1978, entry into force: 1 November 1992 (The Hamburg Rules), 17 ILM 608, see Basedow, ‘Seefrachtrecht: Die Hamburger Regeln sind in Kraft’, (1993) ZEuP 100; Puttfarken, Seehandelsrecht (1997), at 126–130.
46 U.S.C. § 183 (a), see Schoenbaum, Admiralty and Maritime Law (2002), § 15-7, at 155; Chen, Limitation of Liability for Maritime Claims (2001), at 94–102. That the limitations were too low was also criticised in In re Barracuda Tanker Corp. (S/T Torrey Canyon), 281 F.Supp. 228 (S.D.N.Y.1968), remanded 409 F.2d 1013 (2d Cir.1969). As an illustration for the discussions of that time, see Gilmore/Black, The Law of Admiralty (1975), § 10–4(a), at 823–824.
It has been directly transposed into domestic law by six more countries. Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC 1976), London, 19 November 1976, entry into force: 1 December 1986, UNTS I-24635, 1456 UNTS 221; 16 ILM 606; ATS 1991 No. 12; UKTS 1990 No. 13 (Cm 955). As amended by the Protocol Amending the Convention on Limitation of Liability for Maritime Claims, London, 2 May 1996, entry into force: 13 May 2004, 35 ILM 1433; IMO Doc. LEG/CONF.10/8 of 9 May 1996. The Protocol has been ratified by 17 States accounting for 13.87 percent of the world’s tonnage. Information on the percentage of the world’s tonnage is based on national statistics as at 31 August 2005 and can be accessed online at <www.imo.org>, last accessed on 19 March 2007. On statistics of maritime transportation services compare Parameswaran, The Liberalization of Maritime Transport Services (2004), at 17–22.
IMO, Summary Status of Conventions as at 31 August 2005, accessible at <http://www.imo.org/home.asp?topic_id=161>, last accessed 19 March 2007.
Abecassis/ Jarashow, Oil Pollution from Ships (1985), § 10-04, at 194.
In re Barracuda Tanker Corp. (S/T Torrey Canyon), 281 F.Supp. 228 (S.D.N.Y.1968), remanded 409 F.2d 1013 (2d Cir.1969); Gilmore/Black, The Law of Admiralty (1975), § 10-4(a), at 823.
A detailed analysis of the different kinds of dangerous cargos, including chemicals, is provided by Kindt, ‘Marine Pollution and Hydrocarbons: The Goal of Minimizing Damage to the Marine Environment’, 14 Cal.W.Int’l L.J. 233 (1984).
The CLC has not been enacted in the United States. The Oil Pollution Act 1990 set up a somewhat similar system, see infra. The transnational environmental accountability of this compensation system is discussed by Mason, ‘Transnational Compensation for Oil Pollution Damage: Examining Spatialities of Environmental Liability’, LSE Research Papers in Environmental and Spatial Analysis, Department of Geography and Environment, LSE 69 (2002), accessible at <http://www.lse.ac.uk/collections/geographyAndEnvironment/research/Researchpapers/rp69.pdf>, last accessed 19 March 2007. The CLC has been a model for other conventions that are accompanied by an international fund which guarantees compensation of damage that exceeds the liability of the shipowner. Contributions to such an international fund are made by those who benefit from receiving the harmful substances. The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), also establishes such a dual system of a strict liability which is limited and a fund which covers excessive damages (see Article 13–36, 39–41 of the HNS Convention). The International Convention on Civil Liability for Bunker Oil Pollution Damage, however, does not require an international fund (this convention is analysed by Zhu, Compulsory Insurance and Compensation for Bunker Oil Pollution (2006)). Both the HNS Convention and the International Convention on Civil Liability for Bunker Oil Pollution Damage are not yet in force. The HNS Convention has been ratified by 8 countries, accounting for 4.83% of the world’s tonnage, and the Bunkers Convention by 7 countries, accounting for 3.9%. The HNS Convention will come into force after ratification by at least 12 States, each of which has registered gross tonnage of at least 2 million, and contributors in those ratifying States must have received during the preceding calender year a minimum of 40 million tons of cargo consisting of bulk solids and other HNS liable for contributions to the general account. The Bunkers Convention will come into force 12 months after the ratification by 18 States, 5 of which have a combined gross tonnage of at least 1 million each. Since their channelling clauses are similar to the one of the CLC, only the provisions of the CLC will be analysed.
Abecassis/ Jarashow, Oil Pollution from Ships (1985), § 10-05, at 194.
For a detailed analysis of the CLC, see Abecassis/ Jarashow, Oil Pollution from Ships (1985), §§ 10-01 to 10-164; Gauci, Oil Pollution at Sea (1997), 149–196; 153; Göransson, ‘The 1984 and 1992 Protocols to the Civil Liability Convention, 1969 and the Fund Convention, 1971’, in De La Rue (ed.), Liability for Damage to the Marine Environment (1993), 71; Jacobsson, Måns, ‘Compensation for Oil Pollution Damage Caused by Oil Spills from Ships and the International Oil Pollution Compensation Fund’, 29 Mar.Pol.Bull. 378 (1994); Jacobsson, Måns, ‘Le regime international d’indemnisation des victims des marées noires en pleine évolution’, [2004] DMF 793; Jacobsson, Måns, ‘The International Conventions on Liability and Compensation for Oil Pollution Damage and the Activities of the International Oil Pollution Compensation Fund’ in De La Rue, ibid., 39; Wu, Pollution from the Carriage of Oil by Sea (1996), 37–76, 129–192, 388–395.
The 1971 Fund Convention ceased to be in force in 2002. See Protocol of 2000 to the International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage, 1971, adopted 27 September 2000, entry into force: 27 June 2001, RMC II.7.112, LEG/CONF.11/6 of 27 September 2000 (Resolution on the Termination of the 1971 Fund Convention and Accession to the 1992 Protocols: IMO document(s) LEG/CONF 11/8 of 27.9.2000.
International Oil Pollution Compensation Funds, Annual Report 2004, 30. 1084 Article V (2) CLC.
Or Ship managers, bareboat charterers, see Abecassis/Jarashow (ed.), Oil Pollution from Ships (1985), § 10–23, 200.
IPOC, Annual Report 2004, at 50. For an analysis of the sources of oil spills, see Lentz/Felleman, ‘Oil Spill Prevention: A Proactive Approach’, (2003) Int. Oil Spill Conf. 1; a similar analysis under the United States O.P.A. provide Ketkar, ‘The Oil Pollution Act of 1990: A Decade Later’, 7 Spill Science & Tech.Bull. 45 (2002) and Kim, ‘Ten years after the enactment of the Oil Pollution Act of 1990: a success or a failure’, 26 Mar. Pol’y 197 (2002). Cleanup costs are analysed by Schmidt Etkin, ‘Estimating Cleanup Costs for Oil Spills’, (1999) Int. Oil Spill Conf. 165.
Accessible at <http://www.iopcfund.org/publications.htm>, last accessed 19 March 2007.
Ibid., at 44–45.
Ibid., at 81. For an analysis of this case, see Harrison, ‘The Accountability of Classification Societies, The Role of Classification and Market-oriented Policy Issues (The “Erika”), [2000] J.I.M.L. 299; Brans, ‘The 1999 Erika Oil Spill in France’, 2 Inter.L.For.du droit intern. 66 (2000).
Ibid., at 95.
Inter-Governmental Maritime Consultative Organization, Official Records of the International Legal Conference of Marine Pollution Damage, 1969 (London: 1973), 625–660, of 42 delegations which were present and voted at the Conference, 22 voted in favour of strict liability, 17 against and there were 3 abstentions, 665–666.
Ibid., at 727–738.
Bernhardt, ‘Interpretation in International Law’ in Bernhardt (ed.), Encyclopaedia of Public International Law (EPIL) (1995), vol. II, 1416.
Bernhardt, ‘Interpretation in International Law’ in Bernhardt (ed.), EPIL (1995), vol. II, 1416, at 1419; Ipsen, Völkerrecht (2004), § 11, no. 14; Verdross/Simma, Universelles Völkerrecht (1984), § 775.
Compare Schwarzenberger, A Manual of International Law (1960), 69.
P.C.I.J., Polish Postal Service in Danzig (Advisory Opinion), Publications of the P.C.I.J., Series B, No. 11, at 39: ‘It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd.’
I.C.J., Competence of the General Assembly for the Admission of a State to Membership in United Nations (Advisory Opinion), I.C.J. Reports 1950, 4, at 8: ‘The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter.’
Bernhardt, ‘Interpretation in International Law’ in Bernhardt (ed.) EPIL, vol. II, 1416, at 1420; Schwarzenberger, A Manual of International Law (1960), 69.
I.C.J., Case Concerning Right of Passage over Indian Territory (Portugal v. India), I.C.J. Reports 1960, 158.
Compare I.C.J., Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, 15, at 24; I.C.J., Case Concerning rights of Nationals of the USA in Morocco (France v. USA), I.C.J. Reports 1950, 4, at 197 et seq.
See I.C.J., Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Order), I.C.J. Reports 1950, at 229: ‘The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which [...] would be contrary to their letter and spirit.’
Verdross/ Simma, Universelles Völkerrecht (1984), § 779.
The Oxford English Dictionary (1933/1978): ‘A person of either sex who is in the service of a master or a mistress; one who is under obligation to work for the benefit of a superior, and to obey his (or her) commands. [...] 2. In a wider sense: One who is under the obligation to render certain services to, and to obey the orders of, a person or a body of persons, esp. in return for wages or salary.’ Compare Jowitt/Walsh/Burke, Jowitt’s Dictionary of English Law (1977), vol. 1, ‘Master and Servant’; Black/Nolan/Connolly, Black’s Law Dictionary (1979), under’ servant’.
The Oxford English Dictionary (1933/1978), under ‘Agent’; Black/Nolan/Connolly, Black’s Law Dictionary (1979), under ‘Agent’.
Jowitt/ Walsh/Burke, Jowitt’s Dictionary of English Law (1977), vol. 1, ‘Agent’.
Barnett, ‘The validity of Himalaya clauses-privity of contract on the brink of collapse?’, 3 I.J.S.L. 178 (1998); Cook, ‘Privity of contract and the function and scope of the Himalaya clauses’, 7 K.C.L.J. 127 (1996–1997); Crowley, ‘The Limited Scope of the Cargo Liability Regime covering Carriage of Goods by Sea: the Multimodal Problem’, 79 Tul.L.Rev. 1461 (2005); Denniston/Gunn/Yudes, ‘Liabilities of Multimodal Operators and Parties other than Carriers and Shippers’, 64 Tul.L.Rev. 517, at 521 (1989); Doak, ‘Liabilities of Stevedores, Terminal Operators, and Other Handlers in Relation to Cargo’, 45 Tul.L.Rev. 752 (1971); Girvin, ‘Contracting carriers, Himalaya clauses and tort in the House of Lords, [2003] 3 L.M.C.L.Q. 311; Healy, ‘Carriage of Goods by Sea: Application of the Himalaya Clause to Subdelegees of the Carrier’, 2 Mar. Law. 91 (1976–1977); Hill, Maritime Law (2003), 264–269; Schoenbaum, Admiralty and Maritime Law (2004), § 10–8; Tetley, ‘The Himalaya Clause-Heresy or Genius?’, 9 J. Mar. L. & Com. 111 (1977–1978); Tetley, ‘The Himalaya clause — revisited’, 9 J.I.M.L. 40 (2003); Todd, Modern Bills of Lading (1990), 215–223; Zawitoski, ‘Limitation of Liability for Stevedores and Terminal Operators Under the Carrier’s Bill of Lading and COGSA’, 16 J. Mar. L. & Com. 337 (1985); Zeller, Die Umgehung der Haager Regeln durch die Ladungsbeteiligten und die Himalaya-Klausel im Seefrachtrecht (1966).
Adler v. Dickson (the Himalaya) [1955] 1 Q.B. 158.
The first decision under English law in this regard was Midland Silicone v. Scrutton Ltd. [1961] 2 Lloyd’s Rep. 365 (H.L.), in which the House of Lords rejected the extension of the limitation provisions of the Bill of Lading to stevedores. There was no express term in the Bill of Lading that included the stevedores in the definition of carrier. Also, there was no evidence that the carrier was contracting as the stevedore’s agent, which might otherwise have included them in the protection of the contract. Next followed The Eurymedon [1974] 1 Lloyd’s Rep. 534, in which the Privy Council held that the Bill of Lading gave rise to a unilateral bargain that became a full contract when the stevedore discharged the goods. The discharge was interpreted as the consideration for the agreement that the stevedores should benefit from the exemptions and limitations in the Bill of Lading. In the New York Star [1980] 2 Lloyd’s Rep. 317, the jurisdiction of the Eurymedon was confirmed and extended to the time after the discharge of the shipment. Similarly, The Rigoletto (Lotus Cars Ltd. and others v. Southampton Cargo Handling Plc and others and Associated British Ports (The “Rigoletto”), [2002] 2 Lloyd’s Rep. 532) established that the Himalaya clause has no application prior to and outside the scope of the adventure for which the carrier itself has responsibility, i.e. the period of carriage. Under United States law, there is also a long history of Himalaya clauses. The Supreme Court argued in Herd v. Krawill that it was neither the intention of the contracting parties of the Hague Rules nor of the United States Congress to extend the limitations to stevedores, but included an equivocal phrase, on which the legitimacy of Himalaya clauses was thereafter based (‘No statute has limited its liability, and it was not a party to nor a beneficiary of the contract of carriage between the shipper and the carrier, and hence its liability was not limited by that contract’ (emphasis added), Robert C. Herd & Co. V. Krawill Machinery Corp., 359 U.S. 297 (1959), at 308, 79 S.Ct. 766, at 772, 1959 A.M.C. 879, at 888). This clause has been interpreted in the sense that the parties to a contract of carriage may express in a carrier’s Bill of Lading or charter party the will to limit the liability of a stevedore, terminal operator or other independent contractor (Schoenbaum, Admiralty and Maritime Law (2004), § 10–8, at 614 with further references. In order to extend the limitation provision, a Himalaya clause, a period of responsibility clause and a clause paramount are required, see Schoenbaum, ibid., Denniston/Gunn/Yudes, ‘Liabilities of Multimodal Operators and Parties other than Carriers and Shippers’, 64 Tul.L.Rev. 517, at 521 (1989)). In a recent decision, the United States Supreme Court even applied a Himalaya clause that was incorporated in Bills of Lading to a railroad, which was the intended beneficiary thereof. The cargoowner was bound by the limitation of liability clause negotiated between an intermediary and the shipper, as the contract aimed at a door-to-door transportation of the goods (Norfolk Southern Railway Co. v. Kirby, 125 S.Ct. 385, 160 L.Ed.2d 283, 2004 A.M.C. 2705 (U.S.2004)). These clauses must, however, be strictly construed. They are to be limited to their intended beneficiaries and to the contract language or the intent of the parties (Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, at 305 (1959); Norfolk Southern Railway Co. v. Kirby, 125 S.Ct. 385, at 397 (U.S.2004)). Until today there has been no decision which has construed a Bill of Lading in favour of a classification society. Under German law, the Himalaya clause is construed by the courts as a pactum de non petendo, as the preconditions of a contract in favour of third parties are not satisfied. The promisor does not promise to undertake something and does not give a claim to the third party. The third party that benefits from the Himalaya clause can only put in a plea against the action (BGH 7 July 1960, [1960] VersR 727. Contrary: Rabe, Seehandelsrecht (2000), § 607a, no. 12 who argues in favour of a direct protection of the third party through applying § 328 by analogy (similar Gottwald in: Rebmann/Säcker/Rixecker, Münchener Kommentar zum Bürgerlichen Gesetzbuch (2003), § 328, at no. 170)).
An example of such a clause can be found in Lotus Cars Ltd. and others v. Southampton Cargo Handling PLC and others and Associated British Ports (the Rigoletto) [2002] 2 Lloyd’s Rep. 532: ‘It is hereby expressly agreed that no servant or agent of the carrier (including every independent contractor from time to time employed by the carrier) shall in any circumstances whatsoever be under any liability whatsoever to the merchant for any loss, damage or delay arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, but without prejudice to the generality of the foregoing provisions in the clause, every exception, limitation, condition and liberty herein contained at every right, exemption from liability, defence and immunity of whatsoever nature acceptable to the carrier or to which the carrier is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the carrier acting as aforesaid and for the purpose of all the foregoing provisions of this clause the carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the contract evidence by the Bill of Lading.’
Norfolk Southern Railway Co. v. Kirby, 125 S.Ct. 385, at 397 (U.S.2004).
Black/ Nolan/ Connolly, Black’s Law Dictionary (1979).
IMCO, Official Records of the International Legal Conference of Marine Pollution Damage, 1969 (1973), at 228 (CONF.5/C.1/SR.3): ‘Mr. BURSLEY (United States) introduced his delegation’s amendment to Article 1 (4) (LEG/CONF.5/C.1/WP8). The proposal was to delete the word “responsible” and substitute the phrase “legally liable at law in the absence of contract”. The aim was to limit as far as possible extension of the right to invoke limitation of liability. The present text of paragraph 4 would appear to permit shipowners entitled to limitation to extend that right to other persons by contract. [...] Mr. SELVIG (Norway) thought that, on the contrary, a question of substance was involved. Paragraph 4 was designed to establish that all persons for whom the shipowner had civil responsibility were entitled to invoke limitation. The scope of that principle was normally determined by national law. The United States proposal might be interpreted as inadvertently excluding such civil responsibility, which was certainly not the intention. He thought it unnecessary to make the paragraph more specific, for it already seemed to him perfectly clear. Mr. BURSLEY (United States) thanked the representative of Norway, and confirmed that his delegation’s intention was indeed to reduce the categories of persons entitled to invoke limitation. If Article 1 (4) was understood in that way and if the Committee as a whole agreed to that interpretation, he was prepared to withdraw his proposal. Mr. LYON (Canada) agreed with the Norwegian representative that the proposal could also be considered a substantive one. He shared the concern which had led the United States delegation to submit its amendment, but thought a recommendation that the Drafting Committee should replace “responsible” by “liable” (which had a slightly narrower meaning) might suffice. Lord DIPLOCK (United Kingdom) saw no reason to doubt the interpretation of paragraph 4, which seemed to him quite clear. The choice of the word “responsible” was, in his view, legally correct in the present context, and he feared that the new version proposed by the United States might, as the Norwegian representative had said, cast doubt on the applicability of the Convention in cases where civil responsibility arose in connection with the execution of a contract. [...] Mr. BURSLEY (United States) agreed to withdraw the United States proposal [...]’.
See expressly IMCO, Official Records of the International Legal Conference of Marine Pollution Damage, 1969 (1973), at 228 (CONF.5/C.1/SR.3): ‘Mr. SELVIG (Norway) thought that, on the contrary, a question of substance was involved. Paragraph 4 was designed to establish that all persons for whom the shipowner had civil responsibility were entitled to invoke limitation. The scope of that principle was normally determined by national law.’ The other parties agreed.
‘Unquestionably, no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable.’ (Pickard v. Smith (1861) 10 C.B.(N.S.) 470 (C.B.), per Williams J.) See also Allen v. Hayward (1845) 7 Q.B. 960 (Q.B). Clerk & Lindsell, On Torts (2006), § 6–52.
Allen v. Hayward (1845) 7 Q.B. 960 (Q.B.). Cooke J. in: Market Investigations Ltd. v. Minister of Social Security [1969] 2 Q.B. 773, at 784–785.
Hardaker v. Idle District Council, [1896] 1 Q.B. 335.
Definition by Charlesworth/Percy, On Negligence (2006), § 2–291.
With regard to this channelling clause see Altfuldisch, Haftung und Entschädigung nach Tankerunfällen auf See (forthcoming), Chapter 1, A II 5 a.
Siccardi, ‘Pollution Liability and Classification Societies, Is the System a Fair One?’, [2005] Il Diritto Marittimo 691, at 707.
IMCO, Official Records of the International Legal Conference on Marine Pollution Damage, 1969 (1973), 623–700.
Contrary: Siccardi, ‘Pollution Liability and Classification Societies, Is the System a Fair One?’, [2005] Il Diritto Marittimo 691, at 707.
Bates/ Benson, Marine Environment Law (1993), § 4.76; Wu, Pollution from the Carriage of Oil by Sea (1996), 170; De La Rue/Anderson, Shipping and the Environment (1998), 97.
Wu, Pollution from the Carriage of Oil by Sea (1996), 170.
Abecassis/ Jarashow, Oil Pollution from Ships (1985) § 10–126, at 233; De La Rue/Anderson, Shipping and the Environment (1998), 98. This is also stated by Rémond-Gouilloud, ‘The Future of the Compensation System as established by International Convention’ in De La Rue, (ed.), Liability for Damage to the Marine Environment (1993), at 95.
Of 22 November 1994, OJ L 0057/2 of 29 November 2002. For a detailed analysis of this Directive see Pulido Begines, ‘The EU Law on Classification Societies: Scope and Liability Issues’, 36 J.Mar.L. & Com. 487 (2005); Pulido Begines, ‘The Implementation of the EU Community Directive 94/57/EC: Degree of Harmonisation Achieved’, [2005] Il Diritto Marittimo 1234. Compare also Comenale Pinto, ‘La Responsabiltà delle Società di Classificazione di Navi’, [2003] Il Diritto Marittimo 3; Martín Osante, ‘La Normativa Comunitaria en Materia de Seguridad Marítima-Sociedades de Clasificación y Transporte de Petróleo’, 11 Anuario de Derecho MarÍtimo 163 (2001). The European Commission proposes a revision of this Directive in order to strengthen the control systems, harmonize the system of recognition, improve on the recognition criteria and reform the system of penalties. See Commission of the European Communities, Proposal for a Directive on common rules and standards for ship inspection and survey organizations and for the relevant activities of the maritime administration, COM(2005) 587 final. The evaluation of the current Directive is reported in Commission of the European Communities, Commission Working Document on the control of recognised organisations by the Commission, COM(2006) 588 final.
The European Commission recognised in its Decision 96/587/EC (OJ 1996 D 0587 of 15 March 2002) of 30 September 1996 on the publication of the list of recognised organisations which have been notified by Member States in accordance with Council Directive 94/57/EC on the basis of Art. 4(1) of the Directive ABS, BV, CCS, DNV, GL, KR, LR, ClassNK, RINA and RS. The Hellenic Register of Shipping (HR) is recognised with effects limited to Greece and Registro Internacional Naval, SA (RINAVE) with effects limited to Portugal.
Art. 6 (2) lit. b Directive 94/57/EC as amended by Directive 2001/105/EC of 19 December 2001, OJ L 19/9 of 22 January 2002.
46 USC App. § 1304: USD 500; this limit per package has been accepted by the Courts under the Harter Act as well, see Gold Medal Trading Corp. v. Atlantic Overseas Corp., 580 F.Supp. 610, 1984 A.M.C. 2052 (S.D.N.Y.1984); Schoenbaum, Admiralty and Maritime Law (2004), § 10–34, at 716.
46 USC § 181–189. 46 USC § 183c provides that a carrier may not contract out of his liability for negligent acts that result in personal injury or death of passengers. To a limited extent, a carrier may limit his liability in cases of emotional distress, mental suffering or psychological injury except when such injury occurs in specified circumstances (46 USC § 183c (b)). See also Benedict, On Admiralty (2002), vol. 3 §§ 1–71; McCauley, ‘Limitations of Liability and Recreational Vessels’, 16 Tul.Mar.L.J. 289 (1992); Chen, Limitation of Liability for Maritime Claims (2001), 18–24, 30–54; Schoenbaum, Admiralty and Maritime Law (2004), § 15, 136–162; Schoenfeld/Butterworth, ‘Limitation of Liability: The Defense Perspective’, 28 Tul.Mar.L.J. 219 (2004).
The Main v. Williams, 152 US 122 (1894).
Place v. Norwich & NY Transp. Co. v. Wright, 118 US 468 (1886).
Force, ‘United States’, in: Huybrechts, International Encyclopaedia of Laws, Vol. 3, Transport Law (1998), § 296.
OPA is codified in 33 USC §§ 2701–2761. Anonymous, ‘Anatomy of an oil spill: Exxon Valdez and the Oil Pollution Act of 1990. Note’, Seton Hall Legis.J. 331 (1993); Rodriguez/Jaffe, ‘Oil Pollution Act of 1990’, 15 Tul.Mar.L.J. 1 (1990); Kopec/Peterson, ‘Crude legislation: Liability and compensation under the Oil Pollution Act of 1990’, 23 Rutgers L.J. 597 (1992); Schmuck, Der US-Oil Pollution Act (1996). For precise observations on the relationship between these different legal regimes, see Rodgers, Environmental Law (1994), § 4.1. Additionally, an action may be brought under common law principles or special legislation enacted by some states, see Beaver/Butler/Myster,’ stormy Seas? Analysis of new oil pollution laws in the west states’, 34 Santa Clara L.Rev. 791 (1994); Harrington, ‘Oil Pollution Act’s delegation of admiralty power to the states’, 48 Case Western Reserve L.R. 1 (1997); Mullahy,’ state’s rights and the Oil Pollution Act of 1990’, 25 Hofstra L.R. 607 (1996); Lipeles,’ state Control of Oil Pollution: Legislating in the Twilight Zone’, 1 Harv. Envt’l. Rev. 431 (1976).
Özçayir, ‘The “Erika” and its Aftermath’, 7 Int.M.L., 230 (2000), at 234.
CERCLA is codified in 42 USC § 9601–9675. For further information on OPA and CERCLA, please refer to Bagwell, ‘Liability under United States Law for Spills of Oil or Chemicals from Vessels’, [1987] L.M.C.L.Q. 496.
For this reason, the European Commission fears that these tankers will be operated in EU waters from 2005, when they have to be phased out according to OPA, see Özçayir, ‘The “Erika” and its Aftermath’, 7 Int.M.L. 230, at 234 (2000).
26 USC § 9509 (c) (2). See also Özçayir, ‘The “Erika” and its Aftermath’, 7 Int.M.L. 230 (2000), at 237.
See also United Sates v. J.R. Nelson Vessel Ltd., 1 F.Supp.2d 172, 1998 A.M.C. 2249 (E.D.NY.1998), aff’d, 173 F.3d 847 (2d.Cir.1999).
Burgess v. M/V Tamano, 564 F.2d 964, at 982 (C.A.Me.1977): ‘There appears to be no specifically significant legislative history, other than a change from a House version based on fault to a Senate version in the direction of strict liability. H.R.Rep. No. 127, 91st Cong., 1st Sess. (1969); S.Rep. No. 351, 91st Cong., 1st Sess. (1969); Conf.Rep. No. 940, 91st Cong., 2d Sess. (1970), but this change itself indicates that unless the exceptions are narrowly construed, the legislative purpose would be largely vitiated. The first three exceptions, “(A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government,” (which, individually or collectively, must be “solely” responsible) are manifestly addressed to actions entirely outside the ship, or in the case of actors, to strangers. We read the final exception, “(D) an act or omission of a third party without regard to whether such an act or omission was or was not negligent,” correspondingly. To take a simple example, if a vandal opened a ship’s valve, this would be an act of a third party. However, if the valve failed because of an act of the installer, the owners should not be permitted to avoid liability by claiming that the installer was a third party because he was an independent contractor rather than an employee. The installer acts for the ship.’ This interpretation is confirmed by United States of America v. LeBeouf Brothers Towing Co., 621 F.2d 787 (C.A.La.1980); United States of America v. Hollywood Marine, Inc., et al., 625 F.2d 524, 1981 A.M.C. 2646 (C.A.Tex.1980), cert. denied, Hollywood Marine, Inc., et al. v. United States of America, 451 U.S. 994 101 S.Ct. 2336, 68 L.Ed.2d 855 (U.S.1981). Justice Rehnquist dissented and argued that such interpretation does not correspond with the plain language of the statute, which expressly provides a defense whenever the discharge is the result of an act of a “third party” (ibid., at 995).
[1995] CMI Yearbook 1995, 100–106; also reprinted in Annex A & B to Wiswall, ‘Classification societies: issues considered by the Joint Working Group’, 2 I.J.S.L. 171 (1997), at 183, 185; Wiswall, ‘Report and Panel Discussion concerning the Joint Working Group on a Study of Issues Re Classification Societies’, [1995] Il Diritto Marittimo 66, at 274, 277.
Wiswall, ‘Classification societies: issues considered by the Joint Working Group’, 2 I.J.S.L. 171 (1997), at 172; Wiswall, ‘Report and Panel Discussion concerning the Joint Working Group on a Study of Issues Re Classification Societies’, [1994], CMI Yearbook 1994, 228, at 229. Compare also Wiswall, ‘Report and Panel Discussion concerning the Joint Working Group on a Study of Issues Re Classification Societies’, [1995] Il Diritto Marittimo 66.
The official report on the capsizing is accessible at <http://www.onnettomuustutkinta.fi/estonia/>, last accessed on 19 March 2007. Technical Details are enclosed in IMO Doc. FSI 4/Inf.2. The report is also published by The Joint Accident Investigation Commission, Final report on the capsizing on 28 September 1994 in the Baltic Sea on the ro-ro passenger vessel MV Estonia (1997). There is also an unofficial report by “The German Group of Experts”, which was financed by the shipyard Jos. L. Meyer GmbH. It can be accessed at <http://www.estoniaferrydisaster.net>, last accessed on 19 March 2007. See also Jacobsson, Marie/Klabbers, ‘Rest in Peace? New Developments Concerning the Wreck of the M/S Estonia’, 69 Nor.J.I.L. 317 (2000).
The text of the agreement is attached to Jacobsson, Marie/Klabbers, ‘Rest in Peace? New Developments Concerning the Wreck of the M/S Estonia’, 69 Nor.J.I.L. 317, at 330 (2000).
Dent/ Roe, ‘Liability, conventions, classification societies and safety in the Baltic—a case study of the Estonia’ in: Roe (ed.): Developments in the Baltic Maritime Marketplace (1997), 83, at 91.
The offer is more precisely described in: Dent/Roe, ibid., at 91–98.
Dent/ Roe, ibid., at 96; LL, 1 April 1995.
There is a similar economic channelling on the others who do not profit from a limitation in air transport. The injured person will most likely call on these persons, see Schneider, Haftung und Haftungsbeschränkung bei Personenschäden im internationalen Lufttransport (1999), 194. There are thoughts of a system which includes them, see Schweickhardt, Die Kanalisierung der Luftfrachtführerhaftung, [1979] 2 Association Suisse de Droit Aérien et Spatiale-Bulletin 5, at 17.
English Law: Marc Rich & Co. AG v. Bishop Rock Marine Co. Ltd. (and ClassNK) (“The Nicholas H.”), [1992] 2 Lloyd’s Rep. 481 (Q.B.D.); (C. A.) [1994] 1 Lloyd’s Rep. 492; (H.L.) [1995] 2 Lloyd’s Rep. 299. United States Law: Steamship Mutual Underwriting Association Ltd. v. Bureau Veritas, 380 F.Supp. 482 (E.D.La. 1973); Continental Insurance Co. v. Daewoo Shipbuilding & Heavy Machinery Ltd., 707 F.Supp. 123 (S.D.N.Y.1988); Carbotrade v. Bureau Veritas, 901 F.Supp. 737, 1996 A.M.C. 561 (S.D.N.Y.1995), vacated on other grounds, 99 F.3d 86, 1997 A.M.C. 98 (2d Cir.1996), cert. denied sub. nom. Veritas v. Carbotrade S.p.A., 117 S.Ct. 2454 (1997); Cargill, Inc. v. Bureau Veritas, 902 F.Supp. 49 (S.D.N.Y.1995).
As Basedow points out, economic considerations have always had a dominating influence on the limitations of liability, Basedow, Der Transportvertrag (1987), 463
See e.g. IMCO, Official Records of the International Legal Conference of Marine Pollution Damage, 1969 (1973), 727 et seq.
See Commission of the European Communities, Commission Working Document on the control of recognised organisations by the Commission of 11 October 2006, COM(2006) 588 final, Annex at 3.6. Similarly, the available capacity of the insurance market regarding oil pollution claims is also unknown, Colton, ‘The Underwriting of Oil Pollution Risks’ in De La Rue (ed.), Liability for Damage to the Marine Environment (1993), 153.
Their professional indemnity cover generally spans between 10 and 100 million US dollars on an aggregate basis rather than a “per incident” cap, see Commission of the European Communities, Commission Working Document on the control of recognised organisations by the Commission, of 11 October 2006, COM(2006) 588 final, Annex at 3.6.
Gauci, Oil Pollution at Sea (1997), 154.
Compare Faure/Skogh, The Economic Analysis of Environmental Policy and Law (2003), 273.
See also Lord Steyn in Marc Rich & Co. AG v. Bishop Rock Marine Co. Ltd. (and Class NK) (“The Nicholas H.”), [1995] 2 Lloyd’s Rep. 299 (H.L.), at 315.
See e.g. IMCO, Official Records of the International Legal Conference of Marine Pollution Damage, 1969 (1973), 727 et seq.
Despite a considerable increase in insurance premiums (up to threefold), there has not been a rise in the surveying fees, see Commission of the European Communities, Commission Working Document on the control of recognised organisations by the Commission, of 11 October 2006, COM(2006) 588 final, Annex at 3.6.See also supra Part 1 A VI 2.
Also not convinced: Basedow, Der Transportvertrag (1987), 464–465.
See supra Part 3 B I 1 d aa. Compare also Siccardi, ‘Pollution Liability and Classification Societies, Is the System a Fair One?’, [2005] Il Diritto Marittimo 691, at 7072–708, 710.
An economic model for the consideration whether insurance shall be made compulsory in any given case is discussed and the advantages of a mandatory insurance are pointed out in Richardson, ‘Mandating Environmental Liability Insurance’, 12 Duke Entl. L. & Pol’y F. 293 (2002), at 308–321. Possible negative effects are however described in Organisation for Economic Co-operation and Development (OECD), Policy Issues in Insurance: Environmental Risks and Insurance (2003), at 50–51.
Shapiro, ‘Symposium on the economics of liability’, 5 J. Econ. Persp. 3–10 (1991); Wüstendörfer, ‘Zur Haftung für Feuerschaden an Bord von Seeschiffen nach den Haager Regeln’, [1949] MDR 450, 515.
See Mataja, Das Recht des Schadensersatzes vom Standpunkt der Nationalökonomie, (1888), at 19: ‘Keine Gesetzgebung der Welt kann einen einmal eingetretenen Schaden beseitigen, das Recht steht demselben machtlos als einer vollendeten Thatsache gegenüber. Die Gesetzgebung kann daher in Beziehung auf die Schadensgefahr nur zweierlei Zwecke verfolgen: sie kann darnach trachten (1) möglichst vorbeugend zu wirken und (2) den gleichwohl eingetretenen Schaden jenen Personen zuzuwenden, welche nach den Forderungen der Gerechtigkeit und der volkswirtschaftlichen Interessen als die geeignetsten Träger der Last erscheinen.’ Basedow, Der Transportvertrag (1987), 490; Koller, Die Risikozurechnung bei Vertragsstörungen in Austauschverträgen (1979), 78 et seq., 100 et seq.; Kötz, ‘Haftungsausschlußklauseln’, in: 25 Jahre Karlsruher Forum — Beilage, [1983] VersR 145, at 147–148.
For an analysis of the aims of liability especially with regard to the increase of efficiency, the deterrence of environmental damage and risk or loss spreading, see Bergkamp, Liability and the Environment (2001), at 70–119. Compare also Baker Röben, ‘Civil Liability as a Control Mechanism for Environmental Protection at the International Level’, in: Morrison/Wolfrum, International, Regional and National Environmental Law (2000), 821, at 825–827; Organisation for Economic Co-operation and Development (OECD), Policy Issues in Insurance: Environmental Risks and Insurance (2003), at 23–28.
Pound, An Introduction to the Philosophy of Law (1930), 151.
See Skou, ‘Presentation on Behalf of IACS to the Centenary Conference of the CMI’, [1997] CMI Yearbook, 182, para. 6.
Kröger, ‘Presentation on Behalf of the German Shipowners’ Association and of the Maritime Law Committee of ICS’, [1997] CMI Yearbook, 185.
Compare Basedow, Der Transportvertrag (1987), 490–491 with further references. Bolin, however, argues that if liability is limited, the incentives for taking care are limited as well. Damages above the limit are not internalised in the firm’s decisions unless the limit is higher than the injurer’s total assets (Bolin, ‘The Ownership of Funds and Systems for Reparation of very large Accidents’, Department of Economics, Lund University, at 5, accessible at <http://www.nek.lu.se/publications/workpap/Papers/wp99_6.pdf>, last accessed on 19 March 2007. See also Richardson, ‘Mandating Environmental Liability Insurance’, 12 Duke Entl. L. & Pol’y F. 293 (2002), at 303; Bennett, ‘Governing environmental risk: regulation, insurance and moral economy’, 23 Progress in Human Geography 189 (1999), at 200–201.
Compare Basedow, Der Transportvertrag (1987), 490 with further references; Bergkamp, Liability and the Environment (2001), at 73–82.
See generally Bergkamp, ‘Environmental Risk Spreading and Insurance’, 12 RECIEL 269 (2003), at 272–274; Richardson, ‘Mandating Environmental Liability Insurance’, 12 Duke Entl. L. & Pol’y F. 293 (2002), at 294, 322.
Richardson, ‘Mandating Environmental Liability Insurance’, 12 Duke Entl. L. & Pol’y F. 293 (2002), at 323.
Basedow, Der Transportvertrag (1987), 490–491; Bergkamp, ‘Environmental Risk Spreading and Insurance’, 12 RECIEL, 269 (2003), at 272–274.
Bergkamp, ‘Environmental Risk Spreading and Insurance’, 12 RECIEL, 269, at 274 (2003).
Kröger, ‘Presentation on Behalf of the German Shipowners’ Association and of the Maritime Law Committee of ICS’, [1997] CMI Yearbook 185, at 188: insurance of about 25 to 100 million USD per incident. Commission of the European Communities, Commission Working Document on the control of recognised organisations by the Commission, of 11 October 2006, COM(2006) 588 final, Annex at 3.6: insurance of 10 to 100 million on an aggregate basis with a total liability cap rather than a “per incident” cap.
Similarly, classification societies did not ask for immunity in the Joint Working Group on a Study of Issues regarding Classification Societies, see Skou, ‘Presentation on Behalf of IACS to the Centenary Conference of the CMI’, [1997] CMI Yearbook 180, at 182, para. 6.
Altfuldisch, Haftung und Entschädigung nach Tankerunfällen auf See (forthcoming), Chapter 5 C I 3; Basedow, Der Transportvertrag (1987), 504–510; Eyer,’ shipowners’ Limitation of Liability’, 16 Stan.L.Rev. 370, at 389 (1964); Gauci, Oil Pollution at Sea (1997), 153; Gauci, ‘Limitation of liability in maritime law: an anachronism?’, 19 Mar. Pol’y 65, 66–69; Justice Black in Maryland Casualty Co. v. Cushing, 98 L.Ed. 806, at 826 (1954); Pettus v. Jones & Laughlin Steel Corp., 322 F.Supp. 1078, at 1082 (W.D.Pa.1971).
Wu, Pollution from the Carriage of Oil by Sea (1996), at 62.
The Preliminary Report made by the Chairman of the International Subcommittee “Torrey Canyon” (Lord Devlin) argued in favour of a strict liability (CMI Documents 1968, vol. 1, at 78). The results of a subsequent CMI questionnaire, however, were somewhat ambiguous. Associations which were against strict liability: The Belgian Maritime Law Association (CMI Documents 1968, vol. 3, at 102, 104), The British Maritime Law Association (CMI Documents 1969, vol. 3, at 140), The Danish Maritime Law Association (ibid., at 46), The Finnish Maritime Law Association (ibid., at 14), The Hellenic Maritime Law Association (ibid., at 80), The Netherlands Maritime Law Association (ibid., at 62), The Norwegian Maritime Law Association (ibid., at 6), and the Maritime Law Association of the United States (ibid., at 136). The Japanese Maritime Law Association (ibid., at 86) was against strict liability, but in favour of a reversal of the burden of proof as were The German Maritime Law Association (ibid., at 34) and The Swiss Maritime Law Association (ibid., at 30). The French Maritime Law Association (ibid., at 92, 94) argued for the introduction of strict liability in favour of individuals, but not of States. The Italian Maritime Law Association (ibid., at 68) asked for strict liability for either all cases of the carriage of dangerous cargo or none. The Argentine Maritime Law Association (ibid., at 122) was in favour of strict liability, as were the Irish Maritime Law Association (CMI Documents 1969, vol. 3, at 164), The Spanish Maritime Law Association (ibid., at 108), and The Yugoslav Maritime Law Association (ibid., at 112). The Preliminary Draft of the CLC of 10th July 1968 therefore included a liability based on fault with a reversal of the burden of proof (CMI Documents 1968, vol. 3, at 132, Doc. TC-22/8-68, Article 2), as did the Draft of International Convention on Civil Liability for Oil Pollution Damage, 1969 (CMI Documents 1969, vol. 3, at 44). The IMCO Report to the Legal Committee of the CMI came to the same conclusion (CMI Documents 1969, vol. 3, at 106, Article II). It was only at the IMCO-Brussels International Legal Conference on Maritime Pollution Damage, 1969, that strict liability was introduced in such cases. It took until the final days of the Conference before it was decided to adopt a principle of strict liability of the shipowner (IMCO Official Records of the International Legal Conference on Marine Pollution Damage, 1969, LEG/CONF/C.2./WP.35, 24 November 1969, at 596–597).
Preliminary Report made by the Chairman of the International Subcommittee “Torrey Canyon” (Lord Devlin), CMI Documents 1968, vol. 1, at 74. One might only wonder whether liability should have been assigned to the owner or rather the person who is responsible for the vessel, i.e. the charterer. The international community chooses the person who can be identified because of the registry of the vessel. Despite not having control over the vessel at the time that it is chartered, the shipowner knows that it is being used for the transport of oil and has to insure for the potential liability. For justifications of strict liability in general, see Bergkamp, Liability and the Environment (2001), at 119–150.
Basedow also points out that because the culpa of the defendant is not of relevance, the preventive effects of a strict liability are limited (Basedow, Der Transportvertrag (1987), 498).
Same conclusion with regard to United States law: Beck, B., ‘Liability of Marine Surveyors for Loss of Surveyed Vessel’, 64 Notre Dame L. Rev. 246 (1989), at 265–269.
Skou, ‘Presentation on Behalf of IACS to the Centenary Conference of the CMI’, [1997] CMI Yearbook, 180, at 182–183.
Kröger, ‘Presentation on Behalf of the German Shipowners’ Association and of the Maritime Law Committee of ICS’, [1997] CMI Yearbook, 185, at 188.
For an economist’s approach to the question of optimum levels of liability for marine transport, see Jin/Kite-Powell, ‘On the optimal environmental liability limit for marine oil transport’, Transportation Research Part E, 77 (1999).
Wiswall, ‘Classification societies: issues considered by the Joint Working Group’, 2 I.J.S.L. 171 (1997), at 180–183.
Skou, ‘Presentation on Behalf of IACS to the Centenary Conference of the CMI’, [1997] CMI Yearbook, 180, at 184.
Skou, ‘Presentation on Behalf of IACS to the Centenary Conference of the CMI’, [1997] CMI Yearbook, 180, at 183–184.
Kröger, ‘Presentation on Behalf of the German Shipowners’ Association and of the Maritime Law Committee of ICS’, [1997] CMI Yearbook, 185, at 188
It has been ratified by 47 countries accounting for 46.11% of the world’s tonnage and has been directly transposed into national law by 7 more countries (Denmark, Finland, Germany, Japan, Sweden, the United Kingdom and the Faroe Islands) accounting for and additional 6.4% of the world’s tonnage (source: Institute of Shipping Economics and Logistics, ISL Shipping Statistics Yearbook 2004 (2004)).
Skou, ‘Presentation on Behalf of IACS to the Centenary Conference of the CMI’, [1997] CMI Yearbook, 180, at 182.
See supra Part 2 B I 2 d, Perrett v. Collins, (C.A.) [1998] 2 Lloyd’s Rep. 255.
See supra Part 2 B II 3 e, Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., 2002 WL 1798767 (E.D.La. 2002), 346 F.3d 530, 2003 A.M.C. 2409 (5th Cir.(La.) 2003), 2004 WL 179442, 72 USLW 3668, 72 USLW 3672 (S.Ct. 2004).
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(2007). [A Convention on the Limitation of Liability of Classification Societies]. In: The Liability of Classification Societies. Hamburg Studies on Maritime Affairs, vol 9. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-72948-8_4
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