The provision of art. 3(b) means, first, that all claims for oil pollution damage actually governed by the provision of the 1969 Convention are excluded from the limitation system of the 1976 Convention. The reason, of course, is that the 1969 Convention art. V contains special rules relating to limitation of liabilities under the Convention. However, these rules are not of general application. The 1969 Convention applies, generally speaking, only to oil pollution damage caused on the territory of a Contracting State.1 Also, any action for compensation according to the 1969 Convention may be brought only in a Contracting State where pollution damage has been so caused (art. IX), and limitation of liability according to art. V may not be invoked unless a limitation fund is constituted in a State where such an action has been brought (art. V(3)).

Second, however, the 1976 Convention art. 3(b) also excludes from limitation under the Convention all other claims for oil pollution damage as defined in the 1969 Convention, see art. 1(6).2 The drafting history of art. 3(b) shows clearly that there is no condition that a claim is actually governed by the provisions of the 1969 Convention. In fact, a proposal to limit the scope of art. 3(b) to cases where the liability regime of the 1969 Convention applies, was rejected by the London Conference.3 The main reason was that limitation of liability under the 1976 Convention should lead to the same result whether or not the 1969 Convention was applicable and whether or not limitation under the 1976 Convention was invoked in a State party to the 1969 Convention.

The consequence of this is that where oil pollution damage as defined in the 1969 Convention art. 1(6) results in liability based not on the 1969 Convention, but on national law, such liability will not be subject to limitation neither under the 1976 Convention nor under the 1969 Convention. In other words, the liability will be unlimited unless limitation is provided for in the national law to be applied by the court in which the liability is sought to be enforced.