- The 1992 CLC and 1992 Fund Convention cover bunker oil pollution damage only if the bunker oil escapes from a ship “constructed or adapted for the carriage of oil as cargo”.This restrictive coverage left an important gap in the regulatory regime, as bunker spills from other types of vessel, such as dry-cargo and passenger ships, were not covered even though such vessels carry substantial quantities of bunker fuel, in some cases exceeding the cargo carrying capacity of some oil tankers.
- Moreover, the oil used for bunker fuel is generally of a lesser quality than that carried as cargo and, as a result, even a relatively small spill may cause significant damage and disproportionate clean-up costs.
- In recognition of the need for international regulation, in March 2001, the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (2001 BOPC) was adopted, under the auspices of the IMO, to provide for liability and compensation in relation to bunker oil pollution from all types of sea-going vessel, other than oil tankers.
- The Convention imposes strict but limited liability for pollution damage on the shipowner, coupled with compulsory insurance and a claimant’s right of direct action against the insurer.
- However, there are some important differences, including a broader definition of the term “shipowner”, resulting in potential liability of parties other than the registered owner of a vessel. This approach, in principle beneficial to a claimant, may be explained by the fact that the 2001 BOPC, in marked contrast to the 1992 CLC, is designed as a single tier system of liability and compensation. No second tier of compensation, equivalent to that established under the 1992 Fund Convention, is available to provide bunker oil pollution victims with additional compensation beyond that available from the owner of the polluting vessel under the 2001 BOPC.
- Further, in contrast to the 1992 CLC, the 2001 BOPC does not specify a shipowner’s limit of liability. Instead, the 2001 BOPC states that it does not affect the right of the shipowner, or his insurer, to limit their liability under any applicable national or international regime, referring, by way of example, to the 1976 LLMC, as amended. This has been seen by some as a considerable weakness of the Convention, as it means that a shipowner’s limit of liability will depend on any domestic or international regime that determines liability amounts, and will differ between States.
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