International Civil Litigation and the Pollution of the Marine Environment

Abstract

Whenever a major accident occurs to a ship – whether a fire or an explosion on board of the ship, or a collision with another ship, or the ship running aground or sinking and becoming a wreck – it is likely that this casualty will result in considerable physical damage to the ship and its cargo, and in some cases also in loss of life or personal injury to crew members and passengers aboard the ship. Obviously this may have huge financial implications for parties interested in ship and cargo and for crew members, passengers and their relatives. However, a maritime casualty not only affects parties involved in the ship's operation but also third parties. Depending on the circumstances of the incident and the nature of the resulting damage, (many) third parties from various countries are likely to suffer losses as well. A few examples may help to draw the picture. States may be affected, e.g. if wreck removal and clean-up operations become necessary, but also the financial interests and livelihoods of private individuals and businesses, such as local hotels and restaurants who lose earnings from tourists when the coast line becomes covered by a thick layer of crude oil or fisheries who temporarily or permanently lose access to their fishing grounds. Indirectly, the financial interests of many more parties will be affected by the disaster as its consequences ripple on through the local and national economy. This group includes the sub-buyers and final users of the goods as well as underwriters, whether Hull and Machinery (H&M) underwriters or Protection & Indemnity (P&I) insurers of the ship or marine cargo underwriters. Besides the multitude of interests likely to be affected by a maritime casualty involving a ship, there is also a potential for exceptional financial losses resulting from it. It was reported in 2008 that the costs of clean-up operations in Alaska following the Exxon Valdez oil spill in 1989 had reached the figure of US$ 3,5 billion and still counting. But not only oil tankers and ships carrying other hazardous cargoes are capable of generating such enormous losses. Modern container vessels with over 12,000 TEU capacity may easily have cargoes on board worth hundreds of millions of Euros, as is illustrated by the fires involving the m.v. “Hanjin Pennsylvania” in 2002 and the m.v. “Hyundai Fortune” in 2006, and the voluntary grounding of the “MSC Napoli” in 2007.