Lloyd's Maritime and Commercial Law Quarterly
MAKING THE POLLUTER PAY FOR OIL POLLUTION DAMAGE TO THE ENVIRONMENT: A NOTE ON THE ZOE COLOCOTRONI CASE
E. D Brown
Professor of International Law in the University of Wales: Director, Centre for Marine Law and Policy, UWIST, Cardiff.
“To say that the law on this question is unsettled is vastly to understate the situation. The parties in this lawsuit, and we ourselves, have ventured far into unchartered waters. We do not think plaintiffs could reasonably have been expected to anticipate where this
journey would take us”.1
1. Recent developments in the United States and Europe
In recent years, both in the U.S. and in Europe, the environmental lobby has been campaigning hard for the introduction of changes in the law to ensure a more effective application of the polluter pays principle to damage caused by oil spills from tankers. In particular, there has been an anxiety to apply this principle to damage done to the marine environment as such and to those of its natural resources which do not have a ready market value. The hope has been that such a policy might induce a higher standard of care in potential polluters.
1.1 United States legislation
The campaign has been much more successful in the U.S. than in Europe and, already, statutory rights to recover for damage to such natural resources have been created. For example, the Clean Water Act Amendments of 1977 authorised the Federal Government and the States to recover
“costs or expenses incurred … in the restoration or replacement of natural resources damaged or destroyed as a result of a discharge of oil or a hazardous substance”.2
Under s. 1321(f)(5), the President or the authorised representative of any State is empowered to act on behalf of the public as trustee of the natural resources to recover for the costs of replacing or restoring such resources. Sums recovered are to be used to restore, rehabilitate or acquire the equivalent of such natural resources.
1 Commonwealth of Puerto Rico, et al., Plaintiffs, Appellees, v. The S.S. Zoe Colocotroni, Her Engines, Appurtenances, etc., et al., Defendants, Appellants, U.S. Court of Appeals, 628 F. 2d 652 (1st Cir. 1980), Opinion of the Court, per Campbell, Circuit Judge, at p. 678.
2 Or, to give it its full title, the Federal Water Pollution Control Act, as Amended (33 U.S.C. 1321).
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