油類汚染損害賠償 및 補償制度에 관한 硏究

Abstract

Traditionally, an internationally collaborated effort has been required for marine oil pollution because of the following reasons. Firstly, an oil spillage easily causes catastrophic damage due to the dynamics of ocean caused by currents and tides, and the persistent characteristics of oil. Secondly, an oil spillage often causes damage against neighbouring countries as the ocean space has no border physically. To overcome this situation, international efforts have been made to legislate international conventions on the compensation for the spillage. The conventions establishing this legal regime are categorized into two types : one is to provide the ship owner's liability of compensation for oil pollution damage, and the other to establish the IOPC Fund raised by the shipper's contributions to compensate the damages up to a certain amount exceeding the limitation of the ship owner's liability.

The purposes of such international conventions are to ensure full and rapid compensation for the oil spill damage. To serve the purposes, international conventions have amended the principle of actual fault of ship owner's liability established by the Contemporary Admiralty Law to reinforce liability as shown in the followings : Firstly, introducing the principle of strict liability. Secondly, increasing the amount of shipowner's liability up to two times more than the contemporary admiralty law. Thirdly, imposing a financial contribution on the shipper by means of fund-raising in the light of the responsibility of risk.

The international convention system has been transformed from that of International Convention on Civil Liability for Oil Pollution Damage 1969 and International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 to that of 1992 and 2000. The process of the transformation of the international convention system may be regarded as an process of increasing the limited amount of liability of shipowner and International Fund. Such an increase in the limited amount of liability is to serve the purposes of international conventions, for example, a complete compensation. The international legal system mainly led by the 1992 Civil Liability Convention and the Fund Convention is appraised to be properly effected. Korea has also ratified those conventions and enacted the Oil Pollution Compensation Guarantee Act to implement them at the national and local level.

However, new systems have been developed regarding the compensation for oil pollution by ships. Firstly, The Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage in 1992('Supplementary Fund Convention') internationally came into force in 2005. The amendment aims to provide compensation for damage exceeding the limited amount of liability by the International Fund. The new Convention reflected the lessons from the oil pollution accident of Erica in 1999 and Prestige in 2001. Secondly, The International Convention on Civil Liability for Bunker Oil Pollution Damage 2001('Bunkers Convention') also came into force in 2008, aiming to provide compensation for bunker oil pollution caused by non-oil tankers. Thirdly, states have become to intervene in the civil liability arena. Every state exept USA, incorporated the international convention system into domestic legal system under which the victims file claims directly to the insurer or the International Fund. A state, as a contracting party, has been limiting its responsibility to administrative matters, e.g. reporting amount of contributing oil. This pattern has been changed for the first time, as France intervened in the civil compensation process in Erika case, by the declaration of Last Standing in the Queue on the state's claim. Thereafter, Spain, in Prestige case, made a special legislation in which the government should directly pay the victims for the compensation in the first place and make a recourse claim against the International Fund by subrogating to the rights of the victims.

This study, in view of the newly developed international legal system of compensation for oil pollution damage by ships, suggests legislative aspects for the improvement of Korean system, on the implementations of full and rapid compensation desired by the Conventions.

- The Hebei Spirit oil spill case in the west coast of Korea in December 2007 unveiled the defects of the domestic legal system of compensation for oil pollution damage by ships. The limited amount of compensation under the 1992 Convention, which Korea subscribed, was insufficient to pay established claims in full and rapid compensation.

- Korea legislated The Special Act on Hebei Spirit Oil Spill Case to help the victims who fail to be fully compensated by the international system, by disbursing the national treasury.

- Currently, the Oil Pollution Compensation Guarantee Act is under the amendment process. The major points of amendment are adopting the provisions of the 2003 Supplementary Fund Convention and the Bunker Convention to the national system. Meantime, As the amendment seems to make a complexity to the Act, a new legislation of a separate act is believed desirable

the amendment bill provides that liability of compensation for the damage by bunker of non-oil tanker is taken only to registered shipowner, as in the case of oil carrier.

Also, the bill caps the limited amount of compensation only up to the limitation applied to the damage of property. In view of the fact that the Bunker Convention does not provide a second tier compensation, it is desirable to expand the liable person to the ship manager and operator as well as shipowners.

The compensation system by international conventions seems to be ineffective to guarantee a full and rapid compensation because it takes a long time for a victim by oil pollution to be paid a compensation.

- Spanish legislation of a special act to manage the Prestige case is regarded as the most effective model. point of which is that the state inspected the damage and made the payment. This compensation process took about two years, while the victim's individual processing with the International Fund generally spent about four years.

- Korea also experienced a special legislation on the occasion of the Hebei Spirit incident to provide full compensation for damage exceeding the limitation of 1992 International Fund. However this legislation encountered the criticism that the fund to compensate exceeding the limitation should be raised by general taxation of Korea. In this regard, it is essentially required to establish new Fund for Compensation for Oil Pollution Damage to cover damages exceeding the limitation of 1992 Fund Convention. The source of the proposed fund is desirably raised by the contribution of cargo owner, e.g. oil companies.

An inspection of damage is a prerequisite for the compensation of the International Fund. As shown in the Hebei Spirit case, this inspection takes quite a long time and thereby rapid compensation seems almost impossible. To overcome this hindrance, it is recommended that the state designates appropriate inspection institutes.

The expenses occurred during the operation of private company should be compensated by the International Fund. However the company should suffer from a bad financial condition until the compensation is settled. To prevent the responsible company from the potential sufferings, the expenses to cover the fulfillment of duties provided in the NCP should be immediately paid by the state concerned. To facilitate such process, an application of the proposed Fund for Compensation for Oil Pollution Damage, as implemented in France, is highly recommendable.

A shipowner should deposit a bond for processing the limitation of liability. In case of submission of deposit evidences, a deposit of currency is required. However, even in case that the shipowner makes payment during the limitation process, the payment is not deducted from the deposit. As the shipowner is titled only to the right of subrogation, he is not willing to compensate after the initiation of limitation process. In order to facilitate the compensation proceeding, it is recommended that the shipowner's payment should be deducted from the deposit, even in the process of limitation of liability.

The polluted area as the Hebei Spirit oil spillage was designated as a Special Disaster Area in January 2008 and the compensation for each house-hold budget on that area was prepaid, but was started actual payment several months later. This was mainly because of the process under the Regulation on the Financing of the Salvage and Restoration of Disaster. The Process require fix to details including the amount of damages from oil pollution by ships. Accordingly, it is desirable to amend the Regulation on the Financing of the Salvage and Restoration of Disaster to accomodate disaster of environmental pollutions.