International solutions to the problems of oil pollution are in one sense counterproductive, since they distract parliamentary attention from defects in municipal practice that cannot be remedied by treaty.

The anachronisms of British common law were recently exemplified in proceedings relating to the West German tanker, Tarpenbek, which was in collision with a Royal Fleet Auxiliary in the English Channel on June 21, 1979.1 When the Tarpenbek subsequently capsized during a storm, the Dutch salvage company, Smith’s International B.V., proposed to tow her to the Isle of Wight, in order to transfer the cargo of 1,600 tons of lubricating oil inside the shelter of Sandown Bay. Local hoteliers, however, supported by the South Wight Borough Council, feared that accidental pollution would injure the amenities of a popular holiday resort, and obtained a temporary injunction restraining the discharge of oil. Although Walton, J., declined to prohibit the towing operation, he authorised the plaintiffs to serve a writ outside the jurisdiction, requiring the owners and salvors to justify their intentions within 24 hours. Nevertheless, despite his initial inclination to make the injunction permanent, the Judge subsequently concluded that the safest course was to allow the salvage to proceed; and the wreck was eventually recovered with minimal spillage.

The successful outcome of the episode might be thought to vindicate that decision, but the legal implications are open to serious criticism. Since a quia timet injunction may only be granted to prevent the invasion of a right, three questions need to be answered: (1) to what extent would actual pollution have been actionable in tort; (2) to whom would a remedy have been available; and (3) could prospective pollution legitimately have been forestalled by injunction?

If the apprehended spill had in fact occurred, the shipowners would have faced strict liability under the Merchant Shipping (Oil Pollution) Act 1971, which relates to vessels carrying cargoes of persistent oil in bulk, and implements the International Convention on Civil Liability for Oil Pollution Damage 1969.2 Subject to the exceptional defences permitted by the Act,3 and the limitation of liability in the absence of fault or privity,4 an owner is answerable for “any damage caused in the area of the United Kingdom by contamination”, together with the cost of reasonable preventive measures and injury resulting therefrom.5 In situations falling within the terms of the statute, alternative modes of redress are now excluded;6 but it is important to note