Lloyd's Maritime and Commercial Law Quarterly
NEW DEFINITION OF POLLUTION DAMAGE
Professor Z. Brodecki*
The International Conference on Liability and Compensation for Damage in Connection with the Carriage of Certain Substances by Sea, held in London from 30th April to 25th May 1984, adopted (i) the Protocol of 1984 to amend the International Convention on Civil Liability for Oil Pollution Damage 1969, and (ii) the Protocol of 1984 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 19711. This article consists of first reflections on the development of the definition of pollution damage which was accepted at that Conference.
I. Development of an idea
(a) Consideration by the Legal Committee of IMO
The 1969 Civil Liability Convention and the 1971 Fund Convention do not provide a common definition of pollution damage but leave its interpretation to the lex fori. The consequence is that countries which do not recognize the concept of compensatable damage to the marine environment are nevertheless forced to contribute to the compensation of claimants in those countries which do recognize such damage as compensatable2.
The lesson of the Antonio Gramsci case2a was the basis for a Polish proposal at the Stockholm Meeting of an Informal Working Group of the Legal Committee of IMO on 7–11th December 1981 for the revision of the definition of “damage” in the Liability Convention. The proposed text read as follows:
“‘Damage’ means:
(a) Loss of life or personal injury and the impairment of the marine environment or economic loss as a consequence of the impairment of the marine environment suffered by any person outside the ship, and
(b) costs of any reasonable measures taken by any person to avert an incident or abate its consequences”3.
The proposal was discussed at the 48th Session of the Legal Committee. The observer from the Commission of the European Communities stated that it would be better to have uniform guidelines in the draft convention rather than leave the matter to national courts. She felt that compensation for damage might be improved by the
* Professor of Law and Head of the Maritime Law Department, the University of Gdansk. The author was an author of Polish proposals regarding the definition of pollution damage and attended the Conference as a representative of Poland.
1 The International Convention on Liability and Compensation in Connection with the Carriage of Noxious and Hazardous Substances by Sea was not adopted but will be studied by the Secretariat of the International Maritime Organization.
2 See Commonwealth of Puerto Rico v. S.S. Zoe Colocotroni (1980) 628 Fed. R. 2d 652 (U.S. C. of A., 1st Cir.) (Puerto Rico legislation); E. D. Brown [1981] 3 LMCLQ 323. See also the Antonio Gramsci case LEG/CONF. 6/C. 2/SR. 3/PROV. (U.S.S.R. legislation) and comments made by Z. Brodecki, Odpowiedziatnosc za zanieczyszczienie morza (Pollution of the Sea and its Legal Consequences), Gdansk 1983, p. 107.
2a Supra, fn. 2.
3 See LEG 48/W.P. 3.
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