DEATH ON THE HIGH SEAS: THE DEMISE OF TOVALOP AND CRISTAL

SUSAN BLOODWORTH[*]

Copyright © 1998 Florida State University Journal of Land Use & Environmental Law

I. INTRODUCTION

There had been earlier reports of haze—haze that caused several other collisions.[1] However, around 9 p.m. on October 15, 1997, under a clear night sky in one of the world's most congested shipping lanes, two tankers traveled toward each other on a collision course, one inexplicably travelling in the wrong lane.[2] Port authorities gave no less than three warnings, some thirteen minutes in advance; ample time for either captain to correct his course.[3] The Singapore Strait, which connects the Strait of Malacca with the South China Sea, had been described as an accident waiting to happen.[4] The wait was over. The Cyprus-flagged Evoikos collided with the Thai-registered Orapin Global, spilling an estimated 25,000 tons of fuel oil into the Singapore Strait.[5] Despite the swift containment actions of the Singaporeans, current damage estimates place the total costs at around $100 million.[6] In this modern era of supertankers and international oil spill compensation schemes, one would assume the assignment of liability and the payment of damages sufficient to compensate those injured would just naturally follow. While the determination of liability is most assuredly underway,[7] the payment of sufficient compensation is unlikely.

In February 1997, two private industry agreements that had served to compensate victims of oil pollution for the past twenty-five years lapsed.[8] The Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution (TOVALOP) and the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL) were both voluntary agreements developed by the oil industry to address gaps in the existing framework of maritime pollution law.[9] The introduction of the newest International Convention on Civil Liability for Oil Pollution Damage (CLC) and accompanying International Oil Pollution Compensation Fund (Fund Convention) in 1992 resulted in their demise.[10] By January 1996, the 1992 CLC and Fund Convention had received enough ratifications to ensure the protocols would enter into force in mid-1996.[11] As of October 1997, twenty-six countries had ratified the 1992 protocols.[12] Viewed as Sredundant" and considered to have outlived their usefulness,[13] on February 20, 1997, their most recently assigned expiration date, TOVALOP and CRISTAL were simply not renewed.[14]

This article suggests that the passage of time will reveal the demise of TOVALOP and CRISTAL was premature and that the quiet passing of these agreements may, in fact, signify a "calm before the storm," the outer bands of which became clearly visible in Singapore. Part II of this article provides an overview of TOVALOP and CRISTAL. Other U.S. and international remedies for oil spill damages are discussed in Part III. Part IV discusses the ramifications which are being realized because TOVALOP and CRISTAL are no longer enforced, and Part V concludes that any future oil pollution compensation scheme must include TOVALOP and CRISTAL because these agreements provided the greatest likelihood of compensation to those damaged by maritime oil pollution.

II. THE PRIVATE AGREEMENTS

A. Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution

The International Tanker Owners Pollution Federation Limited (ITOPF or the Federation) developed TOVALOP (also called the "Standing Agreement").[15] Although the impetus for its creation has been described in both negative and positive terms,[16] the ultimate effect was to provide mitigation and compensation for damage by oil pollution from tankers.[17] Seven tanker owners, its original sponsors, signed the Standing Agreement into existence in 1969.[18] As of 1987, over ninety-eight percent of the free world's tanker owners, including many government-owned fleets, had become signatories to TOVALOP.[19] The Federation, an association comprised of parties to TOVALOP, was charged with administering the Standing Agreement.[20]

Membership in the Federation required participating tanker owners to establish and maintain the financial capability to withstand limited liability claims.[21] Typically, this would be reflected by the vessel's acquiring insurance with a Protection and Indemnity (P&I).[22] Under TOVALOP, the tanker owner was expected to "take such [p]reventive [m]easures and/or [t]hreat [r]emoval [m]easures as are practicable and appropriate under the circumstances."[23] TOVALOP basically defines "Preventive Measures" as any reasonable measures taken after an incident had occurred to prevent or minimize pollution damage, while it defines "Threat Removal Measures" as any reasonable measures taken after an incident had occurred for the purposes of removing the threat of an escape or discharge of oil.[24]

Tanker owners also were expected to voluntarily, and as promptly as possible, dispose of all valid claims arising against the owner under the Standing Agreement.[25] In the event of a dispute regarding claims, the Standing Agreement provided for the commencement of arbitration proceedings under the rules of the International Chamber of Commerce.[26]

TOVALOP's compensation scheme was keyed to the tonnage of the vessel: $160.00 per ton, with a maximum amount of compensation available of $16.8 million for a vessel of 105,000 gross tons.[27] TOVALOP was a no-fault compensation scheme, with only limited coverage exceptions to the tanker owner's liability: (1) where the damage occurs in a geographic area covered by the CLC; (2) the damage is the result of an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; (3) wholly caused by an act or omission of a third party done with intent to cause damage; and (4) wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.[28]

B. Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution

CRISTAL (also referred to as the "Supplemental Agreement") was also a voluntary industry agreement designed to address oil pollution damage by supplementing TOVALOP.[29] Unlike TOVALOP, the parties to CRISTAL were not the tanker owners, but the various oil companies "engaged in the production, refining, marketing, storing, trading or terminaling of [o]il, or any one or more of whose affiliates are so engaged or . . . receives [o]il in bulk for its own consumption or use."[30] CRISTAL first took effect in 1971.[31] Similar to TOVALOP, a separate entity, Cristal Limited (the Institute),[32] administered CRISTAL.[33] CRISTAL required the establishment of a fund, contributed to by all signatories to the Supplemental Agreement.[34] The total amount of oil received, based on crude/fuel oil receipts, directly affected each signatory's contribution amount.[35] The Institute made the determination of how much money was necessary to assure the fund's ability to make the payments under CRISTAL.[36] The amount was prorated, by dividing the total amount needed by the total of crude/fuel oil receipts for all signatories, and then multiplying that figure by each individual signatory oil company's receipts.[37]

Once a determination was made that compensation from the tanker owner under TOVALOP proved insufficient to meet all claims, CRISTAL came into play.[38] Earlier versions of CRISTAL required that three basic conditions exist before paying compensation: the oil carried by the vessel must have been owned by a party to CRISTAL; the tanker from which the oil was spilled must have been a party to TOVALOP; and the spill must have occurred under cir cumstances which would have resulted in liability had the CLC been in force at the time of the incident.[39] However, the 1993 version of CRISTAL removed both the TOVALOP signatory requirement, as well as the exclusion for CLC covered liability.[40]

The same defenses to liability stated in TOVALOP applied to the 1993 version of CRISTAL. However, CRISTAL still would reimburse the oil company signatories for their clean-up efforts, even if the damage was the result of "negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function."[41]

Special Drawing Rights (SDR's)[42], as defined by the International Monetary Fund, expressed CRISTAL's compensation scheme.[43] Like TOVALOP, payments were linked to the size of the tanker. Funds were not paid, however, until the Institute determined the oil company's costs had exceeded specific amounts.[44] For example, a tanker weighing 5,000 tons or less, the oil company must have paid out costs of three million SDR's (or $3.78 million); for a tanker weighing in excess of 5,000 tons, the calculation was based on 420 SDR's ( or $529.20) for each ton over 5,000, up to a maximum of 59,700,000 SDR's (or $75 million).[45] The aggregate compensation available under CRISTAL, after the minimum payouts were met, was 32 million SDR's (or $40.32 million) for a tanker of 5,000 tons or less, and for a tanker in excess of 5,000 tons, 652 SDR's (or $819.00) for each ton in excess of 5,000, up to a maximum of 120 million SDR's (or $151.2 million).[46] Designed as a last resort after all other avenues of compensation were exhausted, the minimum payouts, as well as amounts due under any other available remedy, were deducted from the above amounts prior to a CRISTAL payout.[47]

III. OTHER REMEDIES FOR OIL SPILL DAMAGE

A. U.S. Admiralty and Maritime Tort Law

Claimants can, in many situations, still pursue damages outside the private agreements. For claimants able to pursue remedies under U.S. laws, the Extension of Admiralty and Maritime Jurisdiction Act, originally passed in 1948, expanded admiralty jurisdiction to include "all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land."[48] A party seeking to invoke U.S. admiralty jurisdiction is required to satisfy two conditions, location and connection with maritime activity.[49] A court applying the "location test" must determine whether the tort occurred on navigable water, or whether injury suffered on land was caused by a vessel on navigable water.[50] In applying the "connection test," the court must assess the general features of the type of incident involved to determine whether the incident has a "potentially disruptive impact on maritime commerce."[51] The court must then determine whether the general character of the activity giving rise to the incident shows a "substantial relationship to 'a traditional maritime activity.'"[52] Courts have consistently agreed that oil pollution damage cases fall within that definition.[53] Admiralty courts draw on general admiralty law, combined with common law tort concepts of trespass, negligence, and nuisance in constructing a "maritime tort."[54] Attendant costs and delays are only a part of the difficulty faced when choosing this remedy.

To prevail on a trespass claim, the damaged party must prove the damage was either intentional or negligent.[55] Additionally, proof of actual entry or intrusion onto the damaged property is required, making this a particularly difficult burden for claimants to overcome.[56]

A successful negligence claim requires the existence of a legal duty to conform to a certain standard, a breach of that duty, and proof that the breach proximately caused the claimant's damage.[57] Claimants have enjoyed some success under this theory of recovery, and it remains a viable option.[58]

A claim under nuisance theory, to be successful, requires a claimant to show: (1) they have suffered "special damage," that is, damages distinct from those suffered by the public at large; (2) that the spill is appropriately termed a "nuisance;" and (3) the existence of intent or negligence sufficient to interfere with the damaged party's use and enjoyment of the damaged property.[59]

B. Federal Limitation of Liability Act

Claimants seeking relief under United States Admiralty law may also be faced with an additional burden, the potential for the application of the Limitation of Shipowner's Liability Act of 1851 (LSLA).[60] LSLA allows the owner of a vessel responsible for damages caused by maritime oil pollution to limit liability to the value of the vessel and her freight following a spill not within "the privity or knowledge" of the owner.[61] Some courts have readily allowed ship owners to limit their liability.[62] This is especially true when the post-accident actions taken were viewed as reasonable.[63]

Other courts have, however, sometimes refused to allow ship owners to escape full liability. When the Liberian tanker, Torrey Canyon, ran aground in 1967, spilling 119,000 tons of oil just outside the English Channel, the Second Circuit restricted the scope of the LSLA, and held Union Oil Company responsible for the full amount of damages.[64] As discussed below, the Torrey Canyon spill had even farther reaching implications for both U.S. and international compensation schemes.

C. International Conventions

The Torrey Canyon spill set off a firestorm of activity in the international realm. The United Nations' International Maritime Organization spearheaded the effort to design an international compensation scheme that would, regardless of fault, result in the guaranteed payment of damages, up to a certain limit.[65] The International Convention on Civil Liability for Oil Pollution Damage (CLC), adopted in Brussels in 1969, resulted from these efforts.[66]

1. International Convention on Civil Liability for Oil Pollution Damage (CLC)

The CLC provides uniform rules and procedures for determining questions of liability and adequate compensation for oil pollution damage caused by vessels.[67] The CLC imposes strict liability on shipowners for damages from an oil spill and for the costs of any action taken to minimize that damage.[68] Compensation is keyed to the weight of the vessel.[69] Originally, liability of an owner for a single incident was limited to approximately $160 for each ton, up to a maximum of $16.8 million.[70] To qualify for the limitation, the owner is required to keep on deposit a sum representing the limits of his liability.[71] Additionally, any ship carrying in excess of 2,000 tons of oil in bulk as cargo is required to obtain a certificate attesting to its financial security.[72]

The CLC also provides the vessel owner with certain defenses to liability. A vessel owner shall not be liable for pollution damage when such damage is caused by "an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character," or acts or omissions of third parties "done with intent to cause damage," or negligent or wrongful acts committed by governmental entities in the maintenance of lights or other navigational aids.[73]

The 1984 Protocol to the International Convention on Civil Liability for Oil Pollution Damage (1984 Protocol) increased liability limits for ships not exceeding 5,000 tons to 3 million SDR's (or $3.78 million); for ships in excess of 5,000 tons, liability is calculated on an additional 420 SDR's (or $529.20) per ton above 5,000, up to a maximum of 59.7 million SDR's (or $75.2 million).[74] Additionally, the 1984 Protocols created an unlimited liability provision.[75] Under the unlimited liability provisions, a vessel owner is not entitled to limit liability if it proves that the pollution damage resulted from the vessel owner's "personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result."[76]

The ratification of the 1992 protocol signaled the demise of TOVALOP and CRISTAL. The 1992 Protocol increases liability limits for ships not exceeding 5,000 tons to $4.5 million, increasing on a linear scale up to a maximum of $89 million.[77] Additionally, the 1992 protocol provides a simplified procedure for future increases in liability amounts, an expanded geographic zone, and coverage for preventative measures even where no spill occurs; however, only in the presence of grave and imminent danger of pollution damage.[78]

2. International Convention on the Establishment of an International Fund for Oil Pollution Damage

The CLC recommended the establishment of an international fund "to ensure that adequate compensation will be available for victims of large scale oil pollution incidents."[79] Two years after the international conference that produced the CLC, a second conference was held to establish provisions for such an international fund to supplement the CLC.[80] The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention) resulted.[81]

Contributions to the fund are made by all persons receiving more than 150,000 tons of oil during the calendar year within a contracting state.[82] The Fund Convention specifically provides for relief to claimants where vessel owners are not liable, are financially incapable of meeting their obligations, or where damages suffered exceed the owner's liability allowed under the CLC.[83] The Fund Convention also provides compensation to vessel owners for the costs of their efforts to minimize damage and indemnifies them for part of their liability under the CLC if the owner has complied with the provisions of the CLC and has not engaged in willful mis conduct.[84] Originally, the maximum compensation for innocent claimants was $60.9 million per incident for those who could demonstrate their damages were caused by one or more ships, but who might otherwise be unable to collect.[85] The 1984 Fund Conven tion Protocol increased the compensation available under the Fund Convention to $568 per ton, with a maximum liability of approximately 135 million SDR's (or $170.1 million) per incident.[86] Simi larly, as with the CLC, the 1992 protocol to the Fund Convention signaled the end of CRISTAL. The Fund Convention's 1992 protocol increased the maximum liability to $203 million, including the compensation payable by the shipowner under the 1992 CLC protocol.[87]

D. United States Oil Pollution Act of 1990 (OPA 90)

Although the United States signed the 1969 International Convention and actively participated in the development of its 1984 Protocol, it later refused to adhere to this same protocol,[88] citing liability limits that would result in inadequate coverage.[89] Instead, and largely in reaction to the massive oil spill from the Exxon Valdez in Prince William Sound, Alaska, in March 1989, Congress passed the Oil Pollution Act of 1990 (OPA 90).[90] The United States also has given no indication of an intent to ratify the CLC and Fund Convention 1992 protocols.[91]

OPA 90 establishes that the owner or operator of a vessel, or a shore-side or offshore facility (the "Responsible Party") shall be strictly responsible for the removal costs and damages caused by an incident involving the spill, or substantial threat of a spill, of oil.[92] Compensable injuries include injury to personal property or real estate, loss of subsistence use of natural resources, loss of taxes or revenues due to destruction or injury to property, lost profits or impairment of earning capacity, and increased costs of providing public services to an area affected by an oil spill.[93] OPA 90 also allows recovery for damages to natural resources.[94]

Under OPA 90, liability limits are also based on the tonnage of the vessel. Liability for vessels weighing less than 3000 gross tons is set at $2 million, and for vessels weighing over 3,000 tons, the liability limit is set at $1,200.00 per gross ton, or $10 million.[95] Claimant compensation is paid from the $1 billion Oil Spill Liability Trust Fund.[96]

One important feature of OPA 90 is its direct contravention of the Limitation of Liability Act. OPA 90 specifically provides:

Nothing in this Act . . . shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof—

(1) to impose additional liability or additional requirements; or

(2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law;

relating to the discharge, or substantial threat of a discharge, of oil.[97]

Available defenses are also delineated. If the discharge was caused solely by an act of God, an act of war, or an act or omission of a third party, a responsible party may assert any one or combination of these defenses.[98] However, if the Responsible Party has failed to report a spill, fails to cooperate with officials in connection with removal activities, or fails to comply with applicable orders, these defenses may not be asserted.[99] Additionally, if gross negligence or willful misconduct of a claimant causes the spill, the responsible party will not be liable to that errant claimant.[100]

As important as what OPA 90 is designed to do, is what OPA 90 does not do. It does not limit the ability of states to create their own oil pollution laws.[101] OPA 90 carries a clear congressional message that states may provide for liability in excess of OPA 90's limits, and that these state schemes will not be subject to the Limitation of Liability Act.[102]

E. U.S. State Legislation

Many coastal states have formulated their own legislation. Many of these statutes track OPA 90 in both structure and substance, with a few notable exceptions.[103] For example, Texas passed the Oil Spill Prevention & Response Act of 1991, which covers any vessel with the capacity to carry 10,000 gallons or more of oil, either as cargo or fuel.[104] The result is that virtually every large vessel visiting Texas is covered by the more stringent restriction.[105]

Florida's oil pollution law, the Oil Spill Prevention and Control Act,[106] was challenged prior to the passage of OPA 90 in Askew v. American Waterways Operators, Inc.[107] OPA 90's predecessor, the Water Quality Improvement Act, contained a non-preemption clause similar to the one in OPA 90.[108] The Supreme Court upheld the Florida Act because it covered only liability concerns, and no conflict existed.[109]

Washington's oil pollution law went further than the Texas and Florida laws by developing an "elaborate set of reporting guidelines, alcohol and drug testing programs, pollution prevention regulations, navigation requirements, planning requirements, and penalty provi sions."[110] These regulations were so comprehensive, they faced an almost immediate court challenge by the International Association of Independent Tanker Owners (Intertanko) as a violation of the Constitution's Supremacy Clause.[111] Intertanko argued that the structure of OPA 90 and the placement of the savings and non-preemption clauses within particular provisions of the act necessarily limited their applications to liability, compensation, and removal, but not to prevention.[112] However, the district court found this argument un persuasive and upheld the constitutionality of the Washington act, determining there was no general preemptive intent that could be inferred from OPA 90.[113]

IV. DISCUSSION

The patchwork of state, federal, and international legal regimes that may come into play upon the occurrence of a maritime oil spill within U.S. territorial boundaries suggests injured parties will likely receive sufficient compensation. For spills that occur outside those boundaries, however, this is not the case.

There are several permutations available for countries operating in the international oil shipping realm. For example, countries may elect not to become a signatory to the CLC. They may forego the CLC for any number of reasons. For example, they may possess the same concerns as the U.S. Senate regarding the CLC's ability to fully compensate oil spill damages; they may be in the process of designing their own legal regime (similar to OPA 90); or they may have re lied successfully on the private industry agreements in the past and simply not had time to garner whatever support their governments require to ratify the 1969/71 conventions or the 1992 protocols.

Of approximately 160 maritime countries, only 75 were a party to the 1969/71 conventions.[114] A country may be a signatory to the 1969/71 conventions and have ratified the 1984 protocols, but not the 1992 protocols. A country also may be a signatory to the 1969 CLC, yet not be a member of the 1971 Fund Convention. This is the situation in which Singapore found itself. A signatory to the 1969 convention, Singapore has not ratified either the 1984 or 1992 protocols.[115] Neither has it ever been a member of the 1971 Fund Convention.[116] This means that for Singapore claimants, the Evoikos owner's liability will be restricted to around $13 million of the estimated $100 million in damages.[117] Had TOVALOP and CRISTAL not lapsed, the impact of the 1969 convention's shortfall would have been negligible. Even where countries are parties to both the 1969 CLC and 1971 Fund Convention, liability limits may be inadequate. As of mid-1996, there were four separate pollution incidents in which countries who were parties to the 1969/71 conventions were faced with claims that exceeded the amounts available.[118]

Rather than recognize the demise of TOVALOP and CRISTAL as premature, ITOPF has chosen to present the Singaporean's dilemma as a strong argument for more countries to leave behind the 1969/71 conventions and choose ratification of the 1992 protocols.[119] It emphasizes that those who take advantage of the resulting two-tiered system, which received its official sanction May 15, 1998, and elect to remain under the 1969/71 conventions will face larger fund ing requirements.[120] ITOPF points out that the amounts retained in each fund to be used for compensation is a direct function of the number and size of signatories to each convention.[121] As more countries ratify the higher liability limits of the 1992 protocols, there is necessarily less money contributed to the 1971 Fund Convention. Without TOVALOP and CRISTAL to fall back on, countries who may not be proponents of the 1992 protocols are left with very little choice.

When Philippines President Fidel V. Ramos signed his country's accession to the 1992 protocols, it was described in the press as saving the government millions of dollars.[122] However, Ramos indicated the accession was due to the termination of TOVALOP and CRISTAL and concerns regarding the increased density of large oil supertankers passing through Philippine territorial waters.[123] What choice did Ramos, or any other signatory country, really have? If countries elect to remain under the 1969/71 conventions, they will find themselves carrying the lion's share of the funding load. Their only other alternative is to create their own oil pollution regimes, like the United States did by creating OPA 90, and create them now,[124] or run the risk of a catastrophic spill without adequate relief mechanisms for its victims.

V. CONCLUSION

In 1995 and 1996, fewer claims for damages caused by maritime oil pollution were filed, with only "intermediate" spills reported.[125] In 1995, there were only two spills that exceeded 700 tons each, both of which occurred in South Korean waters.[12]6 The Sea Prince was grounded on July 23, 1995, losing approximately 700 tons, and the Honam Sapphire on November 17, losing approximately 1,000 tons.[127] In fact, 1995 was a stellar year for oil spills, with the ITOPF, which has been collecting data since 1970, reporting a total of 5,000 tons of oil lost from a total of only twenty-one oil spills.[128] This was the lowest total ever recorded.[129] Although 1996 recorded only twenty spills, one of them, the Sea Empress incident in Milford Haven, lost over 70,000 tons of oil.[130] Despite ITOPF's optimism that CLC and Fund Convention liability levels are adequate, we should not make the mistake of believing 1995 stands for anything other than an anomaly. As technology advances and world oil consumption increases, the potential increases for the occurrence of oil spills of major proportions become more likely. In late-1996, prior to the demise of TOVALOP and CRISTAL, ITOPF reported a 142 percent increase in the 140,000 gross tonnage weight tanker.[131] Rather than the "one-size fits all" CLC brand compensation scheme being pushed by ITOPF, a reinstatement of TOVALOP and CRISTAL would ensure that in no instance would victims of maritime oil pollution go un compensated, regardless of what legal regime is or is not in place. Compensation for damages should not depend on the geographic location of a spill, but on those whose business it is to ship and purchase the oil, regardless of where they travel.

For "interim" agreements, a lifetime of twenty-five years and a membership of ninety-eight percent of the world's tanker tonnage, speak volumes about TOVALOP's and CRISTAL's proven place in the international oil pollution regime. Despite the laudable efforts of the international conventions to meet the demands of ever-changing oil pollution concerns, the short-sightedness of ITOPF's "clean-up" efforts in terminating the private agreements is, much like the waters in the Singapore Straits, becoming clearer. The ITOPF focus should not be a tidy oil pollution compensation scheme, but one that actually provides the greatest likelihood of compensation to those damaged by maritime oil pollution. Such a compensation scheme necessarily would include the reinstatement of TOVALOP and CRISTAL.

_______________________________

[*] B.S., UNIVERSITY OF WEST FLORIDA (1994); J.D., FLORIDA STATE UNIVERSITY (1998). Return to text.

[1] See Santha Oorjitham, Damage Control: A Quick Oil Clean-up and Speedy Charges, NATIONS, Oct. 31, 1997. Return to text.

[2] See id. Return to text.

[3] See id. Return to text.

[4] See id. Return to text.

[5] See id. Return to text.

[6] See Raj Rajendran, Singapore Charges 2 Captains in Oil Spill, SEATTLE TIMES, Oct. 22, 1997, at A12. Return to text.

[7] See id. Return to text.

[8] See David Knott, Hole Appears in Tanker Spill Cover, OIL & GAS J., Mar. 17, 1997, at 30. Return to text.

[9] See id. Return to text.

[10] See Mayer, Collective Action Call on Oil Pollution Compensation, LLOYD'S LIST INT'L, May 30, 1996, at 5. Return to text.

[11] See Estonia Tragedy Casts a Long Shadow, LLOYD'S LIST INT'L. Jan. 2, 1996, available in 1996 WL 6268873. Return to text.

[12] See Allison Giles, Countries Urged to Sign Shipping Rules New Spill Protocols Are Preferred by Group, PLATT'S OILGRAM NEWS, Aug. 29, 1997, available in 1997 WL 8880440. The United States is not a signatory to the 1992 protocols. See id. Return to text.

[13] See Knott, supra note 8. Return to text.

[14] See Mayer, supra note 10. Return to text.

[15] See David A. Barrett & Christine M. Warren, History of Florida Oil Spill Legislation, 5 FLA. ST. U. L. REV. 309, 340 (1977). Return to text.

[16] Compare id. at 339 (claiming the industry was only interested in warding off more stringent legislative action) with Gordon L. Becker, A Short Cruise on the Good Ships TOVALOP AND CRISTAL, 5 J. MAR. L. & COM. 609, 610-11 (arguing it was more a responsible industry action to fill in existing gaps in the existing regime). Return to text.

[17] See Barrett & Warren, supra note 15, at 340. Return to text.

[18] See Becker, supra note 16, at 610. Return to text.

[19] See Lawrence G. Cohen, Revisions of TOVALOP and CRISTAL: Strong Ships for Stormy Seas, 18 J. MAR. L. & COM. 525, 526 (1987). Return to text.

[20] See Barrett & Warren, supra note 15, at 340. Return to text.

[21] See Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP), Jan. 7, 1969, as amended Oct. 13, 1993, II(B)(3), reprinted in 6 MICHAEL F. STURLEY, BENEDICT ON ADMIRALTY 6-136 (7th ed. 1993) [hereinafter TOVALOP Agreement]. Return to text.

[22] See Cohen, supra note 19, at 526. "Claims arising under the TOVALOP Agreement are met by [a] vessel's P&I insurers." Id. at 537. Return to text.

[23] TOVALOP Agreement VI. Return to text.

[24] See id. Return to text.

[25] See id. II(B)(4). Return to text.

[26] See id. VIII(E) and (F). Return to text.

[27] See id. VII(A); Cohen, supra note 19, at 526. Return to text.

[28] See TOVALOP Agreement IV(B)(a)-(d). Return to text.

[29] See Cohen, supra note 19, at 524. Return to text.

[30] A Supplemental to Tanker Liability for Oil Pollution (CRISTAL), as amended Oct. 11, 1993, I(H) reprinted in 6 MICHAEL F. STURLEY, BENEDICT ON ADMIRALTY 6-148.7 (7th ed. 1993) [hereinafter CRISTAL Agreement]. Return to text.

[31] See Becker, supra note 16, at 614. Return to text.

[32] See id. (noting original name as the "Oil Companies Institute for Marine Pollution Compensation Limited"). Return to text.

[33] See CRISTAL Agreement II(A). Cristal Limited organized and existed under the laws of Bermuda, and was comprised of members who were also parties to the Supplemental Agreement. See id. Return to text.

[34] See id. VII(A)(1). Return to text.

[35] See id. VII(2)(i). Return to text.

[36] See Becker, supra note 16, at 614-17. Return to text.

[37] See CRISTAL Agreement VII(B)(2). Return to text.

[38] See Becker, supra note 16, at 615. Return to text.

[39] See id. Return to text.

[40] See CRISTAL Agreement IV(A) & (B). Return to text.

[41] Id. IV(D)(2). Return to text.

[42] "[C]ompensation levels are denominated in Special Drawing Rights . . . based upon a weighted 'basket' of currencies selected by the International Monetary Fund." Cohen, supra note 19, at 528 n. 14. Return to text.

[43] See id. The exchange rate varies on a daily basis; $1.26 was used to represent a value of 1 SDR. See id. Return to text.

[44] See CRISTAL Agreement IV(D)(4). Return to text.

[45] See id. Return to text.

[46] See id. IV(D)(5). Return to text.

[47] See Barrett & Warren, supra note 15, at 345. Return to text.

[48] 46 U.S.C. app. § 740 (1997). Return to text.

[49] See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995); see also, In re Exxon Valdez, 767 F. Supp. 1509 (D. Alaska 1991). Return to text.

[50] See Sisson v. Ruby, 497 U.S. 358, 363 (1990). Return to text.

[51] Id. at 362. Return to text.

[52] Id. at 365; see also Lynch v. McFarland, 808 F. Supp. 559 (W.D. Ky. 1992). Return to text.

[53] See California v. S.S. Bournemouth, 307 F. Supp. 922 (C.D. Cal. 1969); Burgess v. M/V Tamano, 373 F. Supp. 839 (S.D. Me. 1974); Johnson v. Colonial Pipeline Co., 830 F. Supp. 309 (E.D. Va. 1993). Return to text.

[54] See Stephen E. Roady, Remedies in Admiralty for Oil Pollution, 5 FLA. ST. U. L. REV. 361, 367 (1977). Return to text.

[55] See Cereghino v. Boeing Co., 826 F.Supp. 1243, 1250 (D. Oregon 1993). Return to text.

[56] See Burgess v. M/V Tamano, 370 F. Supp. 247, 250 (S.D. Me. 1973). Return to text.

[57] See Sekco Energy, Inc. v. M/V Chouest, 1993 WL 322942, at *3 (E.D. La. 1993). Return to text.

[58] See Roady, supra note 53, at 375. Return to text.

[59] See In re Oswego Barge Corp., 439 F. Supp. 312 (N.D.N.Y. 1977). Return to text.

[60] See 46 U.S.C. app. § 181 (1997). Return to text.

[61] See id. § 183(a). Return to text.

[62] See Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir. 1978). Return to text.

[63] See In re New Jersey Barging Corp., 144 F. Supp. 340 (S.D.N.Y. 1956). Return to text.

[64] See In re Barracuda Tanker Corp., 409 F.2d 1013 (2d Cir. 1969). Return to text.

[65] See Cohen, supra note 19, at 528. Return to text.

[66] See Becker, supra note 16, at 618. Return to text.

[67] See International Convention on Civil Liability for Oil Pollution Damage (CLC), Nov. 29, 1969 (entered into force June 19, 1975), reprinted in 6 MICHAEL F. STURLEY, BENEDICT ON ADMIRALTY 6-62.133 (7th ed. 1993) [hereinafter CLC]. Return to text.

[68] See id. Return to text.

[69] See id. Return to text.

[70] See Becker, supra note 16, at 619 (discussing CLC art. V and the conversion from francs to U.S. dollars). Return to text.

[71] See CLC, supra note 66, art. V, ¶ 3. Return to text.

[72] See id. art. VII. Return to text.

[73] Id. art. III, ¶ 2. Return to text.

[74] See Protocol to the International Convention on Civil Liability for Oil Pollution Damage, May 25, 1994, art 6, ¶ 1, reprinted in 6 MICHAEL F. STURLEY, BENEDICT ON ADMIRALTY 6-77 (7th ed. 1993) [hereinafter CLC 1984 Protocol]. (Dollar conversions for the Special Drawing Rights units were calculated using the same rate applied in the private agreements above.) Return to text.

[75] See CLC 1984 Protocol, supra note 73, art. 6, ¶ 2. Return to text.

[76] Id. Return to text.

[77] See Mayer, supra note 10, at 5. Return to text.

[78] See id. Return to text.

[79] Daniel Kopec & H. Philip Peterson, Note, Crude Legislation: Liability and Compensation Under the Oil Pollution Act of 1990, 23 RUTGERS L.J. 597, 610 (1992) (quoting Resolution on Establishment of an International Compensation Fund for Oil Pollution Damage). Return to text.

[80] See id. Return to text.

[81] See id. Return to text.

[82] See International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Dec. 18, 1971 (entered into force Oct. 16, 1978), art. 10, reprinted in 6 MICHAEL F. STURLEY, BENEDICT ON ADMIRALTY 6-100.2 (7th ed. 1993) [hereinafter Fund Convention]. Return to text.

[83] See Fund Convention, supra note 81, art. 4. Return to text.

[84] See id. arts. 4-5. Return to text.

[85] See Kopec & Peterson, supra note 78, at 610. Return to text.

[86] See Protocol to the International Convention on the Establishment of an International Fund for compensation for Oil Pollution Damage, May 25, 1984, art. 6, ¶ 3, reprinted in 6 MICHAEL F. STURLEY, BENEDICT ON ADMIRALTY 6-116.2(3) (7th ed. 1993). Return to text.

[87] See Mayer, supra note 10, at 5. Return to text.

[88] See Paul S. Edelman, International Convention for Oil Spills, 216 N.Y.L.J. 3, 3 (1996). Return to text.

[89] See 33 U.S.C. § 2701 (1997); Michael P. Donaldson, The Oil Pollution Act of 1990: Reaction and Response, 3 VILL. ENVTL. L.J. 283, 302 & n.124 (1992). Another author has suggested that the Senate's reluctance to ratify the 1984 convention was more of a preemption issue affecting states' rights. See Stephen T. Smith, Comment, An Analysis of the Oil Pollution Act of 1990 and the 1984 Protocols on Civil Liability for Oil Pollution Damage, 14 HOUS. J. INT'L L. 115, 135 (1991). Return to text.

[90] See Francis J. Gonynor, Six Years Before the Mast: The Evolution of the Oil Pollution Act of 1990, 9 U.S.F. MAR. L.J. 105, 105-06 (1996). Return to text.

[91] See Giles, supra note 12. Return to text.

[92] See 33 U.S.C. § 2702(a) (1997). Return to text.

[93] See id. § 2702 (b)(2)(B-F). Return to text.

[94] See id. § 2702 (b)(2)(A). Return to text.

[95] See id. § 2704(a). Return to text.

[96] See id. §§ 2701(11) & 2712. Return to text.

[97] Id. § 2718(c). Other authors suggest the Limitation of Liability Act is still viable after the passage of OPA 90. See Patricia Simmons Schminke, The Oil Pollution Act of 1990: Has It Muddied the Waters of Liability Limitation?, 5 U. BALT. J. ENVTL. L. 173 (1995); William M. Ducan, Esq., The Oil Pollution Act of 1990's Effect on the Shipowner's Limitation of Liability Act, 5 U.S.F. MAR. L.J. 303 (1993). Return to text.

[98] See 33 U.S.C. § 2703(a)(1-3). Return to text.

[99] See id. § 2703 (c)(1-3). Return to text.

[100] See id. § 2704 (c)(1). Return to text.

[101] See id. § 2718(a)(1). Return to text.

[102] See id. Return to text.

[103] See Gonynor, supra note 89, at 124. Return to text.

[104] See id. at 124-25. Return to text.

[105] See id. at 125. Return to text.

[106] See Fla. Stat. § 376.011 (1997). Return to text.

[107] 411 U.S. 325 (1973). Return to text.

[108] See 33 U.S.C. § 1251 (1997), superceding 33 U.S.C. § 1161. Return to text.

[109] See Askew, 411 U.S. at 343. Return to text.

[110] See Goynor, supra note 89, at 125 (footnote omitted). Return to text.

[111] See International Ass'n of Indep. Tanker Owners (Intertanko) v. Lowry, 947 F. Supp. 1484 (W.D. Wash. 1996). Intertanko is an international association comprised of more than 300 shipping companies that account for 80% of the world's independently owned oil tankers. See id. at 1488. Return to text.

[112] See id. at 1491. Return to text.

[113] See id. Return to text.

[114] See Giles, supra note 12. Return to text.

[115] See Janet Porter, Tanker Compensation May Not Be Paid Because of Failure to Adopt Protocol Agreements, LLOYD'S LIST INT'L, Oct. 18, 1997, available in 1997 WL 4465756. Return to text.

[116] See id. Return to text.

[117] See id. Return to text.

[118] See Liz Shuker, Oil Spill Victims to get Increase in Payments, LLOYD'S LIST INT'L, May 30, 1996, available in 1996 WL 6275887. Return to text.

[119] See Knott, supra note 8, at 30. Return to text.

[120] See Giles, supra note 12, at 2. Return to text.

[121] See id. Return to text.

[122] See Philippines Signs Conventions on Oil Spill Compensation, ASIA PULSE, Feb. 12, 1997, available in 1997 WL 10593279. Return to text.

[123] See id. Return to text.

[124] This is an unlikely event considering OPA 90 was some 15 years in the making. See generally Donaldson, supra note 88, at 288. Return to text.

[125] See Making the Polluter Pay, BUS. LINE, Feb. 17, 1997, available in 1997 WL 8205523. Return to text.

[126] See Anthony Poole, Quiet Year for Major Oil Tanker Spills, LLOYD'S LIST INT'L, Sept. 26, 1996, available in 1996 WL 11840846. Return to text.

[127] See id. Return to text.

[128] See Fauziah Ismail, Note, 'Ratify '92 Protocols' Call to States, BUS. TIMES, Aug. 6, 1996, available in 1996 WL 10510117. Return to text.

[129] See id. Return to text.

[130] See id. Return to text.

[131] See Fauziah Ismail, Tovalop Registers Slight Increase in Tanker Tonnage, BUS. TIMES, Oct. 9, 1996, available in 1996 WL 11792865. Return to text.