IMO IA572E-2009 MANUAL ON OIL POLLUTION SECTION V C ADMINISTRATIVE ASPECTS OF OIL POLLUTION RESPONSE (Second Edition).pdf

1、 MANUALONOILPOLLUTIONSECTION V ADMINISTRATIVE ASPECTS OF OIL POLLUTION RESPONSE2009 EDITIONLondon, 2009First published in 1998by the INTERNATIONAL MARITIME ORGANIZATION4 Albert Embankment, London SE1 7SRwww.imo.orgSecond edition, 2009Printed in the United Kingdom by CPI Books Limited, Reading RG1 8E

2、X24681097531ISBN 978-92-801-1500-0IMO PUBLICATIONSales number: IA572ECopyright#International Maritime Organization 2009All rights reserved.No part of this publication may be reproduced,stored in a retrieval system or transmitted in any formor by any means without prior permission in writingfrom the

3、International Maritime Organization.This publication has been prepared from official documents of IMO, and every effort has been made toeliminate errors and reproduce the original text(s) faithfully. Readers should be aware that, in case ofinconsistency, the official IMO text will prevail.ContentsFo

4、rewordIntroduction 1Part I Roles and functions of entities which couldbe involved in an oil pollution emergencyand its aftermathChapter1 Theshipowner3Chapter2 Theshipoperator.7Chapter3 Themaster8Chapter4 Thecargoowner. 11Chapter5 TheflagState 12Chapter6 ThecoastalState 14Chapter7 Thesalvors 18Chapte

5、r8 Theliabilityinsurer. 24Part II Compensation for oil pollution damageChapter9 Outline 29Chapter10 TheInternationalCompensationRegime. 30Chapter11 Recoveryofcompensation. 32References 37Directoryofpublishers 41AppendicesAppendix 1 Chapter IX of the Annex to the 1974 SOLASConvention,asamended 45Appe

6、ndix 2 Resolution MEPC.138(53). 62Appendix 3 Lloyds Standard Form of SalvageAgreementLOF2000 79Appendix4 InternationalGroupofP revision under consideration)Section II Contingency Planning (revised edition published in 1995)Section III Salvage (revised edition published in 1997)Section IV Combating O

7、il Spills (2005 edition)Section V Administrative Aspects of Oil Pollution Response (thispublication)Section VI IMO Guidelines for Sampling and Identification of OilSpills (1998 edition)A series of sections of the Manual on Chemical Pollution have alreadybeen published:Section 1 Problem Assessment an

8、d Response Arrangements (1999edition)Section 2 Search and Recovery of Packaged Goods Lost at Sea(2007 edition)viiIntroductionThis section of the Manual on Oil Pollution is intended to provide thereader, in particular on-scene commanders, lead agencies and othersinvolved in the management of oil poll

9、ution response, with anappreciation of the various interests involved in an oil pollutionemergency and its aftermath, as well as a general review of theinternational legal regimes governing limitation of liability andcompensation for oil pollution damage. This section is not intendedto provide an au

10、thorized or definitive commentary on the legalrelationships between the various entities involved in an oil pollutionemergency or an interpretation of relevant international conventions.The reference section includes sources of more comprehensiveinformation on these subjects, and the reader is encou

11、raged to makeuse of them if more detailed information is required.1Part IRoles and functions of entities which couldbe involved in an oil pollution emergencyand its aftermathChapter 1 The shipowner1.1 General rights and obligations1.1.1 There may be a great diversity of ownership or possessoryintere

12、sts in a ship. The main ones that a coastal State is likely toencounter in a marine pollution emergency are the shipowner,bareboat charterer, and manager or operator. The role of theshipowner is mainly discussed here. The phrase shipowner is usedthroughout, although of course, in some cases, a ship

13、may be ownedby more than one entity in equal or unequal shares. In such cases,there is usually an agreement between the various owners that onewill take operational decisions on behalf of all, and joint ownershiponly becomes of particular interest when recovery of damages issought.1.1.2 Unless there

14、 is a bareboat charterer or manager of the ship,the shipowner is normally the entity responsible for the operation ofthe ship, and the master will act as the agent of the shipowner forthat purpose, at least until direct contact is established between thecoastal State and the shipowner. For this reas

15、on the role of themaster is discussed separately in chapter 3.1.1.3 The interests within the ship are to a considerable extentprotected under international law. Not only is there freedom ofnavigation on the high seas,* but ships are also entitled to the right ofinnocent passage through the territori

16、al sea. These rights of the shipare, however, affected when a marine pollution emergency occurs thatthreatens to or causes damage to the coastal State or its territorialsea, so that the coastal State may, in accordance with internationallaw and its own domestic law, take steps which interfere with t

17、hatfreedom. This is dealt with further in chapter 6, under the rights ofthe coastal State.* In this context, high seas means beyond territorial waters.31.1.4 The first concern of the shipowner in a marine pollutionemergency will be to ensure that the ship and all the life thereon ispreserved, and th

18、at the cargo, which he has contractually undertakento deliver to the destination named in the bill of lading, is so delivered.He is therefore concerned about the protection of both his proprietaryinterest in the ship and his contractual obligations concerning thecargo. If the ship is aground, he wil

19、l want to arrange for it to resumeits voyage as soon as practicable, and this will rightly be the primaryfocus of his immediate concern, rather than the effect of the pollutingsubstances to the sea or coast, which may have escaped or for whichthere may be a threat of escape. Because he may be liable

20、 to paycompensation for pollution caused, the shipowner can be expected,however, to liaise with all others who are directly concerned with theposition of the ship in the emergency, either through the master ordirectly from his office.1.1.5 In addition to the general rights and obligations concerning

21、the operation of the ship, the shipowner may have certain specificobligations concerning:.1 documentation that is required and carried on board foroil pollution preparedness and response;.2 notification of the marine pollution emergency to thenearest coastal State;.3 pollution response and clean-up;

22、 and.4 compensation.1.2 Shipboard Oil Pollution Emergency Plan1.2.1 One of the salient documents required to be carried onboard for oil pollution preparedness and response is a ShipboardOil Pollution Emergency Plan. Every oil tanker of 150 gross tonnageand above and every ship other than a tanker of

23、 400 gross tonnageand above must carry on board such a Plan, approved by the flagState (regulation 38 of MARPOL, Annex I and article 3 of theInternational Convention on Oil Pollution Preparedness, Responseand Co-operation, 1990 (OPRC 1990), which entered into force on13 May 1995). Such a Plan shall

24、be in accordance with theGuidelines for the development of Shipboard Oil Pollution Emer-gency Plans developed by IMO. The Plan shall consist of:.1 the procedure to be followed by the master or otherpersons to report an oil pollution incident;4Manual on Oil Pollution V: Administrative aspects.2 the l

25、ist of authorities or persons to be contacted in theevent of an oil pollution incident; and.3 a detailed description of the action to be takenimmediately by persons on board to reduce or controlthe discharge of oil following the incident.1.2.2 The International Management Code for the Safe Operation

26、of Ships and for Pollution Prevention (ISM Code), made mandatory on1 July 1998 by amendments to the International Convention for theSafety of Life at Sea, 1974 (SOLAS 1974), also requires “emergencypreparedness”, i.e. “the Company should establish procedures toidentify, describe and respond to poten

27、tial emergency shipboardsituations”. In this context, the Company means “the owner of theship or any other organization or person such as the manager, or thebareboat charterer, who has assumed the responsibility for operationof the ship from the shipowner and who, on assuming suchresponsibility, has

28、 agreed to take over all duties and responsibilityimposed by the Code” (regulation IX/1 of SOLAS 1974 and paragraph1.1.2 of the ISM Code).Please refer to more detailed information in paragraph 5.6 of thisManual. Also refer to the new chapter IX of SOLAS 1974 and the ISMCode as set out in appendix 1.

29、1.3 Notification1.3.1 The shipowner may be obliged by an applicable regulation(under the law of the flag State or of the coastal State, either or both ofwhich may derive from international conventions to which theseStates are party) to notify the nearest coastal State of the marinepollution emergenc

30、y which has arisen. Normally this obligationwould fall upon the master of the ship. However, if the ship has beenabandoned, or if the masters report is incomplete, then an obligationon the owner, charterer, manager or operator to make a report mayarise. The obligation to report, which Parties to MAR

31、POL undertake toimplement in their domestic law for ships registered in their territory,is contained in Protocol I of that Convention. The text of Protocol I ofthe MARPOL 1973 Convention, together with resolution MEPC.138(53) is set out in appendix 2. Article 4 of OPRC 1990 is to similareffect.5Part

32、 I, chapter 11.4 Pollution response and clean-up1.4.1 The obligation of a shipowner to take pollution response andclean-up measures depends upon the law of the State where thepollution occurs. The shipowners obligation to pay for suchmeasures may be governed by the International Convention on CivilL

33、iability for Oil Pollution Damage (CLC), 1969 and the 1992 Protocolthereto, if the ship is registered in a State which is party to thoseConventions. These Conventions require a shipowner to maintaininsurance to cover his liability for pollution and other third-partyliabilities under the Conventions.

34、 The International Convention onSalvage, 1989 (1989 Salvage Convention), may also apply if a salvagecontract is entered into. The 1989 Salvage Convention entered intoforce on 14 July 1996.1.4.2 It is understood that under most insurance contracts, andindeed under the general principles of many syste

35、ms of insurancelaw, even though the shipowner is insured, the shipowner should actas a prudent person without insurance. Therefore, the shipownershould act within his capabilities, so as to minimize potential risks.The clause in the insurance contract which enshrines this principleis often called th

36、e “sue and labour” clause. A shipowner should notact in a manner that increases the risk which the insurer hasunderwritten. Therefore, coastal States should find the shipowner co-operative in agreeing to any measures the coastal State wishes toinitiate which would have the effect of reducing risk, t

37、hus reducingthe shipowners ultimate potential liability. In any event, whateverresponse and clean-up assistance the shipowner is able to muster, heor she should normally have available the resources, the technicaladvice and services of the liability underwriter (usually a P and.2 the shipmaster is p

38、rotected by appropriate provisions,including the right of appeal, contained in, inter alia,national legislation, collective agreements or contractsof employment, from unjustifiable dismissal or otherunjustifiable action by the shipowner, charterer or anyother person, as a consequence of the proper e

39、xercise ofhis professional judgement.3.9 Since that time, several new resolutions have been intro-duced which provide additional guidance, notably Assembly resolu-tion A.949(23)* adopted in December 2003, which provides guidelineson places of refuge for ships in need of assistance and Assemblyresolu

40、tion A.987(24),adopted in December 2005, providing guidanceon the fair treatment of seafarers in the event of a maritime accident.It should also be noted that when a marine pollution emergency hasarisen, the masters considerable responsibility may very well lieheavily upon him and the pressure on hi

41、m may be very great. He mayvery well feel personally responsible for what has happened. In manycases, an inquiry may follow which could result in his licence beingsuspended or revoked. There may also be considerable danger in* Refer to Assembly resolution A.949(23), Guidelines on places of refuge fo

42、r ships in need ofassistance.Refer to Assembly resolution A.987(24), Guidelines on fair treatment of seafarers in the eventof a maritime accident.10Manual on Oil Pollution V: Administrative aspectsstaying aboard ship. It is important that anyone dealing with themaster during or in the immediate afte

43、rmath of the marine pollutionemergency is aware of these possibilities and acts accordingly.Chapter 4 The cargo owner4.1 The owner of the cargo at the time of the marine pollutionemergency will not necessarily be the shipper or the consignee, forthe ownership may have changed hands several times sin

44、ce the shipsailed. Therefore, it may not in the initial stages be easy to establishwho owns the cargo, although the chain of enquiry will begin with theshipper named on the bill of lading, a copy of which will be retainedon board by the master. Bulk cargoes tend to be owned by a singleentity, or per

45、haps by a few different interests. Packaged cargoes, onthe other hand, are more likely to be owned by a greater number ofentities.4.2 While cargo interests, collectively, are the ones who con-tribute to the two international Funds outlined in chapter 10, theindividual cargo owner would not normally

46、be liable to compensatethose suffering pollution damage, and certainly there is no interna-tional legal regime which makes provisions for the liability of thecargo owner for such damage.4.3 Once the cargo owner becomes aware of a marine pollutionemergency, his interest will lie mainly in ensuring th

47、at, to the extentpossible, his cargo is secured and delivered to the port of destination.This is the task which has been delegated to the shipowner, and,under the bill of lading or other contract governing the carriage of thecargo by sea (such as a charter-party), this responsibility will remainwith

48、 the shipowner throughout the marine pollution emergency,unless and until the shipowner abandons the voyage. For this reasonthe cargo owner does not normally feature prominently in a marinepollution emergency.4.4 The cargo owners interest extends also to a liability tocontribute in general average a

49、nd salvage. In respect of both of theseliabilities, he will normally be insured by the cargo underwriter. Sincethe cargo owner (or the cargo underwriter, using the right ofsubrogation) will look primarily to the shipowner for compensationfor any loss or contamination of the cargo, it can be readilyappreciated that the interests of the shipowner and the cargo ownermay be somewhat at odds.11Part I, chapter 44.5 The cargo owners knowledge of the nature of the cargo willvary enormously according to the typ