Most American maritime and environmental attorneys and vessel owners are familiar with OPA 90 and oil spill liability in the United States. But what happens when a vessel spills oil in the territorial waters of another country? As of June 2023, 146 countries have ratified or adopted the International Maritime Organization's ("IMO") International Convention on Civil Liability for Oil Pollution Damage, 1992 (the "CLC"). The CLC addresses civil liability for maritime oil spills.1 Notably, the United States is a member of the IMO, but it has not ratified the CLC. While there are many similarities between the CLC and OPA 90, there are also some significant differences, including when the act applies, what the limitations on liability are, how you can break limitations, and how you can lose your defenses to exoneration or limitation. One of the most glaring examples of the differences is the different limitations of liability for different sizes of vessels:
OPA 90
Vessel Type | Vessel Size | 2023 Limit of Liability |
Non-Tank Vessel | The greater of $1,300 per gross ton or $1,076,000 | |
Tank Vessel:
Single Hull 2 |
1. >3,000/GRT | 1. The greater of $4,000 per gross ton or $29,591,300 |
Tank Vessel: Double Hull | 1.
<3,000/GRT 2. >3,000/GRT |
1. The greater of
$2,500 per gross ton or $5,380,300 2. The greater of $2,500 per gross ton or $21,521,300 |
CLC 92
Vessel Size | 2023 Limit of Liability3 |
<5,000/GRT | 4.51 million SDR ($5.78 million USD) |
5,000 – 140,000/GRT | 4.51 million SDR plus 631 SDR for each additional gross ton over 5,000 |
>140,000/GRT | Liability is limited to 89.77 million SDR ($122.29 million USD) |
Special drawing rights ("SDR") are supplementary foreign exchange reserve assets defined and maintained by the International Monetary Fund. In 2023, 1 SDR = $1.3623 USD. |
The CLC applies to "sea-going vessel and seaborne craft of any
type whatsoever constructed or adapted for the carriage
of oil in bulk as cargo, provided that a ship capable
of carrying oil and other cargoes shall be regarded as a ship only
when it is actually carrying oil in bulk as cargo and during any
voyage following such carriage." 4 However, only
ships carrying more than 2,000 tons of oil are required to carry
insurance for oil pollution. Similar to OPA 90, vessels required to
carry insurance must carry enough to cover their potential
liability for an oil spill.
The below table highlights the main differences between OPA 90 and the CLC:
ISSUE | OPA 90 | CLC 92 |
Liable Parties | Owner, operator, bareboat charterer, or a third party whose sole action caused the oil spill. | Registered owner (operator, manager, charterer are protected unless the pollution damage was caused by his willful misconduct) |
Complete Defense | Act of war must
be the sole cause Act of God must be the sole cause |
Act of war (no
"sole cause" requirement) Act of God (no "sole cause" requirement) |
Conditional Defense | Act of a third party – defense only if the Responsible Party exercised due care and took precautions against any foreseeable act of third party. | Act of a third
party (must be the sole cause) Government negligence (must be the sole cause) |
Responsible Party Denied Use of Defenses | Responsible Party
loses defense if he fails to: 1. Report a spill 2. Cooperate in response 3. Follow USCG orders |
There are no enumerated reasons for the responsible party to be denied use of the conditional defenses in the CLC. |
Limitation of Liability (updated to 2023 values) |
Up to approximately $29.6 million (see table above for more information) | Up to approximately $122.29 million USD (see table above for more information) |
Tests for Breaking Limitation | 1. Gross
negligence or willful misconduct; 2. Violation of a federal safety, construction, operation regulation; or 3. Failure to a. Report; b. Cooperate; c. Follow USCG Order. |
"Personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result" |
Scope of Application | All types of vessels, all types of oils. | Applies to vessels constructed for carrying persistent oil in bulk as cargo (essentially tankers). |
Limitation Period/ Statute of Limitations | Claims must be raised to the responsible party at least 90 days before the expiration of the three-year limitation period. | 1. Within 3 years
of the date when the damaged occurred 2. Within 6 years of the date of the incident which caused the damage. |
Recoverable Damages | 1. Cleanup
costs 2. Property damage, 3. Economic loss consequential on property damage 4. Pure economic loss 5. Natural resources damages 6. Natural resources damages assessment costs 7. Loss of subsistence use of natural resources |
1.
Cleanup costs 2. Property damage, 3. Economic loss consequential on property damage 4. Pure economic loss 5. Reasonable costs of restoring the damaged environment |
Interaction with Other Laws | No
pre-emption over State law – they work in conjunction as long
as the State Laws are not less strict than OPA 90. Individual
states may enact their own pollution prevention and liability laws
that will also apply to vessels in their waters. Preempts general maritime law. |
CLC preempts
other laws: 1. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with the CLC. 2. No claim for compensation for pollution damage under this Convention or otherwise may be made against operator, manager, charterer (including bareboat charterer) etc. (CLC Art.III.4) It should be noted that each adopting country may decide how the CLC interacts with its own laws and that an individual country may have laws that it determines preempt the CLC. |
In summary, while OPA 90 and the CLC share many similarities, there
are substantial differences that vessel owners and operators should
be aware of. First, OPA 90 applies to all vessels while the CLC
only applies to vessels carrying "persistent oil" as a
cargo (i.e., tankers). Second, under the CLC, only the registered
owner of a vessel is held civilly liable (unless the manager or
charterer are shown to have caused the spill due to their willful
misconduct), while under OPA 90 there are avenues to hold the party
actually responsible for the spill regardless of willful
misconduct. Third, the CLC also allows owners to raise act of war
or act of God defenses without requiring them to show those were
the sole cause of the spill. Fourth, as mentioned above, there are
significant differences in the limitations of liability under the
CLC v. OPA 90. Fifth, the CLC as written allows claims to be
brought for up to 6 years in some cases while OPA 90 has a strict
three year statute of limitations and requires claims to be
presented 90 days before that period ends. Sixth, OPA 90 allows for
the recovery of damages for loss of use of natural resources while
the CLC does not. These differences refer to how the CLC is written
and enacted by the IMO. While they may not seem all that
significant when reading about them on paper, in practice these
differences can have major impacts on the civil liability exposure
that a vessel owner faces. In the event of an oil spill in a
country that has adopted the CLC, it is important to look at how
that specific country has adopted the CLC and how it applies or
interacts with that country's laws.
Footnotes
1. Most nations who have adopted the CLC as law have also adopted the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damages. This convention fills in the gaps of the CLC, and applies to "seagoing vessel and seaborne craft, of any type whatsoever," when the CLC does not apply. The BUNKER Convention uses a wider definition of oil than the CLC, and employs its own insurance and limitation of liability schemes.
2. Single hulled tankers are not allowed to operate in the U.S. EEZ but are still included in the OPA limitation of liability figures.
3. This assumes the adopting country will apply the increased CLC Limitations of Liability from 2000 and not the 1992 limitations.
4. As mentioned in note 1, the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage helps to bridge this gap in liability in the CLC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.