Oil Spilling: A Disaster in Sea

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

DISASTER MANAGEMENT LAW

Seminar Paper

OIL SPILLING: A DISASTER IN SEA

SUBMITTED TO: SUBMITTED BY :

DR. MANOJ KUMAR SARISH TRIPATHI

ASSISTANT PROFESSOR (LAW) B.A.LL.B. (B) X SEM.

DR. RMLNLU ENROLL. NO. 170101121

1|Page
 Oil Spilling: A Disaster in Sea

ACKNOWLEDGEMENT

Expressing gratitude is a pleasant but difficult job when one sincerely tries to put them in
words. To list them all is not practicable, even to repay them in words is beyond the domain
of my lexicon.

I am highly indebted to Dr. Vipul Vinod, teacher and Guide of the subject for firstly,
allowing me to take this topic just on the ground that I have interest in the topic, secondly, for
providing me outstanding assistance at every step of my preparation of this project. I am
extremely thankful to her for her constructive criticism and helpful suggestions. Her constant
encouragement helped me to work harder.

I would also in cryptic gratitude toward my parents who ensure my capabilities and raise my
confidence, also maintain mental and physical balance

2|Page
 Oil Spilling: A Disaster in Sea

Contents
I. Introduction.........................................................................................................................4

II. Oil Spill...............................................................................................................................6

A. Operational Discharges...................................................................................................6

B. Accidental discharges......................................................................................................7

III. International Conventions on Oil Pollution: Evolution across the Years.......................9

IV. Liability and Compensation Regime.............................................................................12

A. Liability under Common Law Principles......................................................................12

B. International Liability and Compensation Regime.......................................................16

i. Voluntary Liability Regime.......................................................................................16

ii. Civil Liability Regime...............................................................................................17

V. Oil Spills in India..............................................................................................................19

A. Response to Oil Spills...................................................................................................20

B. Liability Regime............................................................................................................21

VI. Conclusion and Suggestions.........................................................................................22

VII. Bibliography..................................................................................................................25

3|Page
 Oil Spilling: A Disaster in Sea

I. INTRODUCTION

Rapid development and advances in science and technology have brought in their own
basketful of problems. The following two illustrations show the type of dangers and
consequences thereof that one has to face as a result of application of technology. Illustration
one: an offshore drilling oilrig explodes in the Gulf of Mexico, 41 miles from the coast of
Louisiana while drilling an exploratory well. Illustration two: a merchant vessel collides with
a panaman ship carrying oil cargo in Mumbai harbor. Two maritime accidents, one common
effect-OIL SPILL. Aftereffects- immediate shock to the system, immediate toxicity and
immediate mortality-marine life oiled, coastline tarred, total economic losses running into
millions of dollars and the entire picturesque landscape transformed into slicky black
unsightly scenery. Pictures of the Deep Water Horizon in the Gulf of Mexico and MSC
Chitra and MV Khalijia collision in the Arabian Sea splashed across the print and television
media educe the latent potential of environmental calamity a marine accident might cause.
Accidental pollution of sea by oil is inevitable. It is the price that mankind has to pay for the
benefits of an industrial society. Now the big question arises as to who is to be held liable for
accidents that lead to such catastrophic effects on the marine environment?

Oil is not only the most sought after but also the most transported commodity worldwide and
because of its physical and chemical nature, sea is the most convenient medium of
transportation. Oil pollution is a recurring phenomenon and has gravest effects on marine
environment as well as economic conditions of the people inhabiting the areas around the
affected areas. Oil pollution of the sea began with the introduction of oil fuel in ships and
increased with the carriage of oil cargo in bulk and has been ever increasing ever since. 1 Oil
pollution might result from collision of vessels carrying oil cargo or from its bunkers. It
might arise as an accidental escape or from the conscious decision of the master to lighten his
stricken vessel.2 Tanker accidents, however, are not the only source of oil pollution. Marine
based oil pollution can emanate either from ships or from offshore installations. Apart from
dramatic accidental spills like the Exxon Valdez, intentional discharges by the ships form an
important cause of oil pollution. The recent appearance of tar balls on beaches of Goa is an
example of intentional oil discharge by a ship on high seas. 3 Natural seepages may also cause

1
David W. Abecassis, The Law and Practice Relating to Oil Pollution from Ships, 3 (Butterworth, London, 1st
ed 1978).
2
Simon Gault, Marsden on Collisions at Sea, 413 (Sweet and Maxwell, London, 13th ed. 2003).
3
“Tar Balls invade Goa’s Coastline”, The Times of India, August 31, 2010, 06:08IST available at
http://timesofindia.indiatimes.com/city/goa/Tar-balls-invade-Goascoastline/articleshow/6465768.cms.

4|Page
 Oil Spilling: A Disaster in Sea

oil pollution but due to the fact that it is not caused by human activity such incidents are
generally excluded from the ambit of marine based oil pollution.

The effects of oil spill are multitude in number and magnanimous in character. An oil spill
contaminates sea water, natural resources and coastlines; it adversely affects marine life if not
permanently damaging it. Oil spills don’t just create oily beaches, they can disrupt a broader
range of ecological processes that ultimately can affect wetlands, commercial fisheries,
recreation, and species abundance for years to come. 4 Individuals with business interest in the
environment of the region incur loss of earning of revenue owing to the impairment of that
environment. It is due to the hazardous effects of oil spillage a sound legal regime is required
in place to regulate the transport of oil by sea. States either enter into regional as well as
international instruments or depend on common law principles or statutory laws to tackle the
menace of oil pollution. Fourteen international conventions and protocols provide a
framework for international co-operation to combat emergency situations threatening the
marine environment. They were developed in response to individual oil pollution incidents
beginning with the Torrey Canyon accident which resulted in the escape of 117,000 tons of
crude oil in the western approaches of United Kingdom, causing extensive damage to the
British coast and the coast of France.5

The international order is principally concerned with the avoidance of accidents at sea, and
with regulation of the operational discharge of oil in the cleaning of ballast tanks of oil
tankers. Civil liability for oil pollution has been the subject of international conventions for
decades. The law of oil spill liability is a mixture of civil liability and criminal regimes in
certain jurisdictions like U.S. The liability and fund conventions limit the liability of the
shipowner in case of maritime accident causing oil pollution. Principles governing the law on
oil spill liability are strict liability, channeling of liability, and caps on liability limit. The
issue arises as to the propriety of capping the liability limits in the cases of oil spill where the
implications of one incident are immense, costs involved in the cleanup are massive and the
damage caused to the natural resources and private parties is also grave.

India which has a vast coastline is susceptible to pollution by maritime oil spill accidents and
in the wake of recent incidents it has become imperative to analyze the Indian scheme of laws
governing oil spills and see whether it is appropriate enough to meet the challenges of claims
4
James Boyd, “Lost Ecosystem Goods and Services as a Measure of Marine Oil Pollution Damages”,
Discussion Paper 10-31, RFF May 2010 available at www.rff.org.
5
Phillippe Sands Q C, Principles of International Environment Law, 448 (Cambridge University Press, New
York 2nd ed. 2009).

5|Page
 Oil Spilling: A Disaster in Sea

arisen by such an incident. The paper seeks to analyze the international liability regime in
case of marine based oil pollution and the status of Indian laws in dealing with accidental oil
spills. Before analyzing the liability regime it would be desirable to discuss briefly the
different ways in which oil spill might occur.

II. OIL SPILL

Oil spills attracts great public attention because of the visible nature of the incident and the
fact that people encounter it generally either first hand on bathing beaches or from tragic
pictures of ruined beaches, tar-soaked waterfowls and poisoned fishes on television or the
internet in case of spectacular oil spills6 like Deep Water Horizon or MS Chitra.

Physical properties of oil are as such that it does not mix with water so when large quantities
of oil are discharged into the aquatic environment a thick layer of crude oil or refined
petroleum oil spreads out in a layer that hovers on top of the ocean. This release of oil into
the marine environment is referred to as oil spill. The crude oil after floating on ocean for
some time changes its properties. Some of the oil evaporates, some weathers and some
emulsifies with water to form an emulsion resembling chocolate pudding. This thickened
emulsion then goes through wear and tear by wind and waves and forms tar balls. 7 An Oil
spill might occur due to various causes. It could be due to an operational or an accidental
discharge in the sea/ocean.

III. Operational Discharges

An oil spill might be caused by operational discharge from a crude oil tanker or ship. The
problem is bigger in case of tankers. After the tanker has discharged its cargo, a proportion of
it remains in the tanks, caught mainly on the horizontal surfaces of the joists which give the
tank its structural strength. Such clingage has to be removed regularly to avoid the risk of
explosion and this was traditionally done by washing the tanks with water. This water is then
to be discharged into the sea. Prior to 1960’s this was done without separating the water from
oil. After the 1962 revision of the 1954 International Convention for the Prevention of
Pollution of the Sea by Oil, a technical solution of the oil discharge problem was designed by
the oil industry. The process so designed is called Load on Top(LOT) which is an excellent

6
R B Clarke, Marine Pollution, 33 (Oxford Science Publication, Oxford, 2nd ed. 1989).
7
Office of Response & Restoration, Details of tar balls available at http://response.restoration.noaa.gov.

6|Page
 Oil Spilling: A Disaster in Sea

anti oil pollution device however, not all the tankers have adopted the device due to some
practical difficulties.

Other then tankers, vessels which burn bunker C or other heavy fuel oil face the problem of
fuel oil purification. During the course of a voyage the purification of the fuel oil produces a
quantity of sludge which is stored in sludge tanks but eventually has to be discharged to a
shore reception facility or to the sea. Also almost inevitably pumps, tanks and machinery leak
small quantities of various types of oil mainly lubricating oil. This can amount to appreciable
quantity.8 Disposal of oily ballast is also a problem that many dry cargo ships face. This
problem arises where the vessel has to use its bunker tanks for water ballast to ensure
stability. The oily ballast is normally discharged only when the vessel is nearing port. 9
Tarring of Goan beaches is an example of an operational discharge by a ship near the coast

The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 10
adopted under the auspices of IMCO recognized that most oil pollution resulted from routine
shipboard operations such as the cleaning of cargo tanks. OILPOL’54 prohibited the dumping
of oily wastes within a certain distance from land and in ‘special areas’ where the danger to
the environment was especially acute. In 1962 the limits were extended by means of an
amendment adopted at a conference organized by IMO.11

IV. Accidental discharges

Accidental spillage of oil from ships occur either in association with an operational procedure
aboard ship or with an accident to the vessel. Examples of accidents that might occur during
operational procedure are -while loading or discharging oil cargo, lightening, bunkering,
ballasting or deballasting. The most likely causes of accidental oil spills are grounding and
ship to ship collision. Structural failures, foundering and loading-unloading errors can also
cause sizeable spills; in these cases the human element, which can play a role also in case of
grounding and collision is particularly important.12 Generally, the vast majority of incidents

8
Supra note 1 at 9.
9
ibid.
10
Hereinafter OILPOL’54.
11
IMCO or Inter-Governmental Maritime Consultative Organization is the United Nations specialized agency
with responsibility for the safety and security of shipping and the prevention of marine pollution by ships.
12
Andrea Bigano and Paul Sheehan, “Assessing the Risk of Oil Spills in the Mediterranean: the Case of the
Route from the Black Sea to Italy”, Working Paper no. 32 FEEM 2006 available at
http://ssrn.com/abstract=886715.

7|Page
 Oil Spilling: A Disaster in Sea

occur in association with operational procedures aboard the ship but the vast majority of oil
spills occur as a result of accidents to the vessels.

From 1967 Torrey Canyon disaster till the recent sinking of Chitra in the Arabian sea in
2010, the world has witnessed many accidental spillages by ships that have shook human
sensibilities from time to time. A series of tanker accidents occurred in and around United
States waters in the period of 1976-1978 the most important of them being the stranding of
Argo Merchant that ran aground off Massachusetts in December, 1976.13 On March 16, 1978
the world witnessed another catastrophic accident that of the Amoco Cadiz which was then
considered to be the worst oil spill till that time as it destroyed marine life extensively and
ruined the beaches. Exxon Valdez disaster followed in 1989 which was highly televised and
led to a string of litigation and ultimately the passing of Oil Pollution Act, 1990 in the United
States of America. February 1999 saw the sinking of Panamanian-flagged, Japanese-managed
wood chip carrier New Carissa14 and 70,000 gallons of fuel spilled. In December, the same
year, Erika sunk off the cost of France highlighting yet again the importance of maintenance
of vessels and the need of sound international measures to check such incidents which could
have been prevented provided due care. The sinking of Prestige in 2002 off the Galician coast
polluted beaches along the French and Spanish coast highlighting yet again the question of
liability in such accidents where multiple parties are involved. March 2009 witnessed the
Southeast Queensland oil spill in Australia when unsecured cargo on the container vessel the
Pacific Adventure went down the sea during a cyclone.

Apart from vessel, offshore installations and gas pipelines are major contributors to oil
pollution. When an oil well is being drilled, mud is pumped down the well. These maintain a
head of pressure and prevent a “blow out’ when oil is struck. An offshore platform may
suffer from a blow out, resulting in an uncontrolled discharge of oil. 15 Immense precautions
are taken to prevent blow outs, nevertheless, accidents happen occasionally and great
quantities of oil may be released into the sea before the blow out is brought under control.
Some of the notable spills caused by blow outs are Ekofisk 1977, 16 Pemex Ixtoc I 1979,
13
Argo Merchant was a small Liberian flagged oil tanker, carrying 27,000 tons of oil that ran aground and
subsequently sank southeast of Nantucket Island, Massachusetts.
14
New Carrisa was a 639 foot-wood chip carrier with 400,000 gallons of bunker and diesel fuel aboard. The
vessel had split into two parts due to surf action and intentional burning, resulting into fire. Approximately
140,000 gallons of fuel burned and up to 70,000 gallons of fuel spilled outside the bay of Coos, Oregon.
Available at http://www.csc.noaa.gov/magazine/2006/02/article2.html for details.
15
Supra note 6.
16
A well in Ekofisk fields in the Norwegian sector of the North Sea blew out in April 1977, discharging some
20,000-30,000 tons of oil. Available at http://www.incidentnews.gov/incident/6237 for details.

8|Page
 Oil Spilling: A Disaster in Sea

Texaco 1980, Montara 2009 and the recent BP’s Deep Water Horizon. Niger delta is
notorious for oil spills which have become a common phenomenon. According to the UN
Human Development Report, around 6,817 oil spills occurred between 1976 and 2001.17

V. INTERNATIONAL CONVENTIONS ON OIL POLLUTION: EVOLUTION

ACROSS THE YEARS

Water knows no boundaries and seas are beyond state desires of absolute sovereignty. 18
Marine pollution affects the environment which is a part of the collective commons. As
Posner points out that in our increasingly complex and interconnected world, problems
emerge that cannot be solved by the actions of one nation.38 Oil spill is one such problem
area that exceeds the scope and capabilities of an individual state to solve the problem in the
absence of an effective international legal regime. Marine based oil pollution is an
international problem and can be categorized as “collective action problem”. In 1954, the first
ever international convention on the subject of liability of the ship-owners for sea pollution
came into existence.19 The establishment of IMCO in 1958 was a reinforcement of the pledge
undertaken by the international community to curb the problem of marine pollution.

Till date the international community has evolved a comprehensive legal regime to regulate
the transport of oil by sea. Environmental catastrophes like the Torrey Canyon, Exxon Valdez
etc. have time and again highlighted urgency of strengthening the international legal order
and have helped in evolving the legal regime in place for curbing the menace of oil spill. The
international community has developed a complex and bewildering range of rules to
minimize oil pollution from ships. E.D. Brown 20 adopts a system of classification of the rules
to distinguish them on the basis of- 1) provisions for the enforcement of standards; 2) coastal
states right of intervention; 3) coordinated international response to oil pollution incidents; 4)
civil liability regime. For the purpose of this paper only the rules falling under the fourth
category i.e., rules establishing civil liability regime would be analyzed.

17
Niger Delta Human Development Report, 2006 available at
http://hdr.undp.org/en/reports/nationalreports/africa/nigeria/name,3368,en.html.
18
Article 17 of the United Nations Convention on the Law of the Sea (hereinafter UNCLOS) guarantees the
right of innocent passage to all ships.
19
The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 (OILPOL) was adopted
under the auspices of IMCO that was later amended in1962, 1969 and 1971.
20
E.D. Brown, The International Law of Seas 377 (Dartmouth Publishing Company, Sydney Vermont, 1st ed
2004).

9|Page
 Oil Spilling: A Disaster in Sea

However before analyzing the civil liability regime it would be reasonable to give a brief
outline of the international conventions which regulate marine based pollution of the sea by
oil. OILPOL played the central role for the period of 1954-71 which was superseded by the
International Convention for the Prevention of Pollution from Ships, 1973 as modified by the
Protocol of 1978(MARPOL73/78). Both OILPOL and MARPOL embody standards
specifically relating to oil pollution caused by intentional discharges from ships or accidental
discharges which are avoidable by improving tanker design and operating procedure.
Prevention measures mainly focus on the technical requirements such as ship structure
standards and safety standards, which should be enforced by the contracting states. Both the
conventions try to ensure compliance with these standards by making provisions for survey
and certification of ships and enforcement by state parties. 21 However the introduction of
such standards can do little to undo the damage caused by oil spills.

Once there is an oil spill, immediate measures have to be taken to contain it, minimize the
damage and restore the natural environment as far as possible. And for that purpose
international arrangements have a very important role to play. Realizing the importance of the
international cooperation in matters relating to exchange of information respecting the
capabilities of States to respond to oil pollution incidents the preparation of oil pollution
contingency plans, the exchange of reports of incidents of significance which may affect the
marine environment or the coastline and related interests of States, and research and
development respecting means of combating oil pollution in the marine environment an
International Convention on Oil Pollution Preparedness, Response and Co-operation 22 was
entered into in 1990. The preamble to the OPRC includes a number of provisions of
relevance to general rules of international environmental law noting the ‘importance of
precautionary measures and prevention in avoiding oil pollution in the first instance’ and
taking ‘account of the polluter-pay principle as a general principle of international
environmental law.’ The convention commits parties to take all appropriate measures in
accordance with its provisions to prepare for and respond to an oil pollution incident. It is
important to note that OPRC’s provisions are applicable to ships, offshore units, sea ports and
oil handling facilities. Prior to OPRC, there were regional agreements on similar lines- the
Bonn Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and other
Harmful Substances, 1983,23 the Copenhagen Agreement between Norway, Denmark,

21
ibid.
22
Hereinafter OPRC, 1990.

10 | P a g e
 Oil Spilling: A Disaster in Sea

Finland and Sweden Concerning Cooperation in taking measures against pollution of the Sea
by Oil, 1971.

Prevention and preparedness covered, now we come to the question of liability. Rules of
liability and compensation for damage to the marine environment establish an incentive to
prevent harm and also may require restoration. UNCLOS requires the states to cooperate in
the implementation of existing international law and the further development of international
law relating to responsibility and liability for the assessment of and compensation for damage
and the settlement of related disputes, as well as, where appropriate, development of criteria
and procedures for payment of adequate compensation, such as compulsory insurance or
compensation funds.24

Following the Torrey Canyon disaster, an international conference held at Brussels adopted
the International Convention on Civil Liability for Oil Pollution Damage, 1969(CLC). The
CLC imposed strict but limited liability on owners of ships from which oil was discharged for
cleanup costs and private damages, and introduced compulsory liability insurance. Two years
later, The International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1971(Fund Convention) set up an international fund
which provided compensation in excess of the vessel owner’s liability under the CLC, or
where the owner is insolvent or not liable under the CLC. CLC, 1969 was amended by a
Protocol in 1976(CLC PROT 1976) which entered into force in 1981 and simply changed the
unit of account used in the convention. Another amendment was made by a protocol in
1984(CLC 1984) which did not enter into force. An IMO conference in 1992 adopted the
Protocol of 1992 to amend the CLC, 1969(CLC PROT 1992). After entering into force CLC
1969 and CLC PROT 1992 are to be read together as a single instrument as the International
Convention on Civil Liability for Oil Pollution Damage, 1992(CLC 1992).

The Fund Convention 1971 was amended by a Protocol in 1976 bringing it in line with the
CLC 1969 by changing the Unit of the account from Gold franc to the SDR. More substantial
amendments were introduced by a Protocol in 1984(FUND PROT) which unfortunately did
not come into force. An IMO conference in 1992 adopted the Protocol of 1992 to amend the
Fund Convention 1971(FUND PROT 1992). Once in force, the Fund Convention 1971 and
the FUND PROT 1992 to be read and interpreted together as a single instrument and known

23
The 1983 Convention replaces the earlier Bonn Convention, 1969 and provided for active cooperation in
responding to oil pollution which presented a grave and imminent danger to the coast or related interest.
24
Article 235, UNCLOS.

11 | P a g e
 Oil Spilling: A Disaster in Sea

as the International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage, 1992(Fund Convention 1992). United States is not a
party to the CLC.

In the year 2001, International Convention on Civil Liability for Bunker Oil Pollution
Damage25 was adopted to adopt uniform international rules and procedures for determining
questions of liability and providing adequate compensation in case of pollution resulting from
the escape or discharge of bunker oil from ships.

Before proceeding to the liability and compensation regime, a point that needs to be kept in
mind is that although civil liability has been a subject of international conventions for
decades, the United States has chosen to opt out for its own system outside the international
regime. It follows a special law enacted for oil pollution damage, the Oil Pollution Act,
1990(OPA) which has higher liability caps with likelihood of additional liability under the
state laws.

VI. LIABILITY AND COMPENSATION REGIME

Implications of oil spills are of highly dramatic magnitude and the question of liability and
the consequential claims arising out of it is complex. For the purpose of this paper, liability
and compensation regime would be studied under two heads-one under common law
principles and second the international liability and compensation regime.

A. Liability under Common Law Principles

Oil is the major energy source on which state economies run. In a spillage scenario when oil
lies wasted on top of the sea, the effects of accident are bound to be farfetched. First and
foremost there is loss of oil, which is in itself a prized commodity. Secondly, the oil industry
and industries dependent on it suffers loss too. There is an immediate loss of the source of the
pollution, i.e., the ship or tanker or an offshore instillation which met an accident and caused
the spill. Also there is an immediate injury to the natural resource economic valuation of
which is a daunting task in itself and beyond the scope of the present paper. 26 Beaches are
destroyed which straight away affects the tourism industry. Owners of shoreline hotels,

25
Hereinafter the Bunker Convention 2001.
26
Christine M. Augusyniak, “Economic Valuation of Services Provided by Natural Resources: Putting a Price
on the ‘Priceless’” 45 Baylor L. Rev. 389 (1993).

12 | P a g e
 Oil Spilling: A Disaster in Sea

resorts, recreational areas, and other tourist-based businesses suffer economic losses. In case
of a small island state whose economy is run on tourism, an oil spill could devastate the entire
economic structure of the state. Fishing industry is again directly affected as fisheries are
destroyed. Livelihood of fisherman is destroyed, and consequently there is loss of export and
revenue. Owners and charterers of ships unable to sail across the area of the spill, as well as
owners of cargo delayed by the obstacle, may incur losses.27 Marine flora and fauna of course
suffers. In case of accidents involved in offshore installations there can be injury to life as
well.

Victims of oil spill are thus multiple in number and varied in there degree of effect on them.
Costs involved in cleanups are massive. The million dollar question then arises as to who is
to bear the costs and to what extent the cargo owners, carrier be made liable? In view of the
fact that multiple parties are involved in the whole array of transaction involving oil transport
it becomes imperative to analyze the liability of insurer and the other parties involved in the
chain of transaction. What is the extent of liability to be incurred-strict or absolute? What in
case of negligence?

In some cases, it would not be difficult to show that the stranding or the collision which
caused the casualty which in turn gave rise to the spillage was brought about by a negligence
for which one or more ship-owners were liable. A spill might be caused or brought about
negligent failure in duty by a member of crew or by poor construction or inadequate
maintenance which could be accounted negligence on the part of the owner.28 At the same
time there might be cases where accident cannot be directly attributed to negligence.
Theoretically speaking, the tort of nuisance, strict liability (Ryland v. Fletcher)29 or trespass
can be applied to an escape of oil and impose liability without proof or fault. 30 It is submitted
here that applying the rule in Ryland v. Fletcher would be difficult in case of oil escaping
from oil tankers as the rule is based on non natural use of land, collection of dangerous
substance and its consequent escape whereas oil tankers are specifically designed to carry the
subject in question i.e., oil. Tort of nuisance can be said to be having a more potential
application especially in its public nuisance variety.31 In order for a public nuisance to exist,
there must be proof that the activity substantially interferes with the common rights of the
27
“Mumbai Coast Oil Spill Stops Ship movement; Moradabad Exporters Incur Losses” ANI, August,14, 2010
available at http://www.dailyindia.com/show/391758.php.
28
Robert P. Grime, Shipping Law, 218 (Sweet and Maxwell London 1st ed 1978).
29
(1868) L.R. 3 H.L. 330.
30
Supra Note 28.
31
id.

13 | P a g e
 Oil Spilling: A Disaster in Sea

public at large.32 Trespass requires some element of direct interference with land, goods or
person, or interference brought about by some fault on the part of the defendant. A trespass
claim is more suitable for plaintiffs who can prove that oil washed up on their beach.33

A thing worth noting here is that in case of negligence, consequential loss cannot be
recovered in ordinary court proceedings. The tort of negligence is primarily concerned with
damage that is physical damage caused to a person or property. No doubt oil spills cause
physical damage but the range of claimants may vary from those whose interests are affected
directly. Pollution causes loss to those who have an economic stake in the unpolluted nature
of the sea and the shore-those who earn their living from tourism or from fishing. 34 Most
importantly the greatest loss is suffered by the state or to say national government agency
which spends large sums of money in cleaning up costs.

It thus becomes apparently very clear that it is not pragmatic to apply ordinary rules of
common law for the determination of the costs and consequence of oil spillage. One
important reason for non reliance on common law principles is that in case of a transaction of
oil there are multiple parties involved. For example in case of an accident involving a
ship/vessel there is the owner of the cargo, owner of the ship, party who has chartered the
ship for voyage, the ship manufacturer, the insurer or party responsible for the maintenance
of the ship. Also a ship can be registered in one state and could be flying under the flag of
convenience of some other state. An oil tanker can be owned by one company and could be
chartered by another company. In case of an offshore installation, the oil platform could be
owned by one corporation and could be licensed to another company for drilling oil.

Therefore it is quite possible that if liability is left for common law to be determined that in
case of a disaster parties involved would be inhibited from taking necessary and swift action
because of the general uncertainty as to who is to be held responsible. 35 At this juncture, it
would be apt to cite the example of vessel Erika which went down the Bay of Biscay in
December 1999. After eight year litigation, on 16 January 2008 the Criminal Court of Paris
rendered the judgment and extended criminal and civil liability for oil pollution beyond the
traditionally liable ship owner to include the vessel’s classification society and her oil

32
Michael L. Rustad Thomas F. Lambert Jr. & Thomas H. Koenig, “Reconceptualizing State AG Parens
Patriae as Crimtorts” , Suffolk University Law Review 10 (2010).
33
Bruce B Weyhrauch, “Oil Spill Litigation: Private Party Lawsuits and Limitations”, 27 Land & Water L.
Rev. 370 (1992).
34
Supra note 28 at 200.
35
Supra note 28 at 220.

14 | P a g e
 Oil Spilling: A Disaster in Sea

company charterer. The court found culpable conduct by each of these maritime safety-chain
entities and found that this conduct caused or contributed to the oil pollution. It was for the
first time that apart from the ship owner and insurer the liability was extended to the
classification society and charterer alike. The judgment can be said to be ground breaking in
the sense that it signals giving a stern warning to ship owners, managers, classification
societies, and oil companies alike: adhere to safe shipping practices or face criminal charges
and potentially limitless civil liability for endangering seafarers and causing harm to the
environment.36

Apart from the issues of standing and cause of action, question arises as to the recovering
damages for the injury to, destruction of, or loss of natural resources not subject to property
rights. Assessing damages to injury to natural resources is a complex issue as it is difficult to
evaluate market value of the same. Some methods of assessing damages are on the basis of
economic valuation techniques or the cost of restoration matter.37 It is interesting to see the
approach of U.S in case of the Amoco Cadiz oil spill. In response to the spill, claims were
submitted by the French state and local governments for damage to un-owned natural
resources damage to whom were estimated to be at 4.8million US dollar.38 The claim was an
“attempt to evaluate the species killed in the intertidal zone by the oil spill and to claim
damages in accordance with that value determination. 39 The claims were rejected by the U.S
court because the resources claimed to be damaged were ‘subject to the principle of res
nullius and is not compensable for lack of standing of any person or entity to claim thereof.’ 40
The court concluded that ‘neither the state nor the communes has standing to assert claims for
damage to the ecosystem.’41

In incidents of damage to natural resources, collective interests are primarily infringed. Such
damage is difficult t recover under tort law because it is traditionally focused on individual
material interests and no as such personal interests are said to be infringed and so no one has

36
Vincent J. Foley& Christopher R. Nolant, “The Erika Judgment- Environmental Liability and Places of
Refuge:A Sea Change in Civil and Criminal Responsibility that the Maritime Community Must Heed” , 33 Tul.
Mar. L.J. 41 (2009).
37
Edward H.P. brans, “Liability for Damage to Public Natural Resource Standing Damage and Damage
Assessment”, (Kluwer Law International 2001) available at
www.dundee.ac.uk/cepmlp/journal/html/vol10/article10-1.pdf.
38
“Assessing the Social costs of Oil Spills: The Amoco Cadiz case Study” National Ocean Service, U.S Dept of
Commerce, (1983) available at http://www.archive.org/details/ecologicalstudyo00noaa.
39
In re Oil Spill Amoco Cadiz, 1998 U.S. Dist. Lexis 16832 29.
40
ibid.
41
ibid.

15 | P a g e
 Oil Spilling: A Disaster in Sea

standing to sue. However, in existence of special laws or doctrines, standing and cause of
action to claim compensation for such damage can be specifically provided to government
entities.42 It was due to the difficulties in extending principles of tort law liability in case of
damage to un-owned natural resources, some states enacted special statutes and treaties and
protocols directed at harmonizing national rules on civil liability for damage caused by
potentially dangerous activities, such as the transportation of oil as cargo by tankers.

B. International Liability and Compensation Regime

As we have discussed earlier in the paper that international conventions with respect to oil
pollution can be distinguished between, on the one hand, measures aiming at prevention ex
ante and on the other hand measures aiming at compensation ex post. The prevention of
marine pollution is subject inter alia to the OILPOL and MARPOL Conventions. The issue of
civil liability and compensation for oil pollution is mainly regulated by international
conventions developed within the framework of the IMO by the CLC and Fund Convention.
Apart from the IMO governed convention, the major tanker owners of the world agreed to a
voluntary scheme on liability-TOVALOP which was supplemented in 1971 by CRISTAL, an
agreement between cargo owners, the oil companies to create fund to support the costs of
cleaning up which arises after oil spills.

VII. Voluntary Liability Regime

TOVALOP and CRISTAL together formed a voluntary scheme to settle the question of
liability and financial cover of the costs oil spillage. The main effect of TOVALOP was to
impose upon tanker owners which are a party to it, an obligation to remove a spillage of oil or
to reimburse government for its costs in removing the spill. There was no liability in case the
owner took all reasonable care to avoid the spill. The aim of TOVALOP was not to cover
claims for damage caused by spill but the costs incurred by the owners or by a government of
taking action to remove it or threat of it. Removal means reasonable measures for preventing
or minimizing damage by pollution, which itself is defined as including only physical
contamination and excluding fire, explosion, consequential and ecological damage. 43
TOVALOP was administered by Tankers Owners pollution Federation. TOVALOP imposed
limited liability. CRISTAL was simply a method of establishing a fund of money, provided
by the oil companies, as cargo owners, which can supplement the liabilities imposed on

42
Supra note 37.
43
Supra note 28 at 22.

16 | P a g e
 Oil Spilling: A Disaster in Sea

tanker owners by TOVALOP or by the CLC. Unlike TOVALOP, parties to CRISTAL were
not the tanker owners, but the various oil companies “engaged in the production, refining,
marketing, storing, trading or terminaling of oil, or those who receive oil in bulk for its own
consumption. CRISTAL was limited in its application to spills from tankers that are at that
time carrying oil in bulk. Ballast runs were not covered. In February 1997, both the voluntary
agreements expired and were not renewed keeping in view the introduction of the new
international civil liability regime.

VIII. Civil Liability Regime

Given the difficulties in establishing the direct liability of states in relation to environmental
damage under the state responsibility or liability regime, an alternative system has been
developed based on the civil liability regime, these regimes recognize the competence of
national courts , either in the state where the damage was caused or in the state of nationality
of the polluter, to decide cases regarding the liability of the actual parties causing damage
outside the state in which they are based. Such decisions thus become enforceable in other
states parties to the agreement. Most important features of civil liability regimes are- strict
liability of the operator, limitation of this liability at a certain ceiling, i.e, channeling of
liability, and mandatory insurance or other form of financial security to cover the liability of
the operator.

The 1969 and 1992 CLC govern the liability of ship owners for oil pollution damage. The
Conventions lay down the principle of strict liability for ship owners and create a system of
compulsory liability insurance. The 1971 and 1992 Fund Conventions establish a system
providing additional compensation to victims when compensation under the respective CLC
is inadequate. A third tier of compensation in the form of a Supplementary Fund was
established on March 3, 2005, by means of a protocol adopted in 2003 (Supplementary Fund
Protocol). The 1971 Fund Convention, the 1992 Fund Convention, and the Supplementary
Fund Protocol each establish an intergovernmental organization, the 1971 Fund, the 1992
Fund, and the Supplementary Fund, respectively, with their headquarters in London.
Collectively, these organizations are referred to as the IOPC Funds.

The 1992 Conventions place liability for an oil discharge on the registered owner of the ship
from which the oil originated.44 Ship owners are strictly liable for pollution damage and are

44
Article III, International Convention on Civil Liability for Oil Pollution Damage, 1992.

17 | P a g e
 Oil Spilling: A Disaster in Sea

obliged to carry liability insurance for this purpose.45 A ship owner is exempt from liability
only if he proves that the damage- (a) resulted from an act of war, hostilities, civil war,
insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character,
or (b) was wholly caused by an act or omission done with intent to cause damage by a third
party, or (c) was wholly caused by the negligence or other wrongful act [by public
authorities] for the maintenance of lights or other navigational aids.46 Ship owners are
normally entitled to limit their liability to an amount calculated on the basis of the tonnage of
the ship. The amount to which ship-owners can limit liability was effectively increased by
50%, from November 1, 2003, and now ranges from 4.51 million SDR (US$7.0 million) for
small ships up to 5000 GT to 89.77 million SDR (US$140 million) for large tankers.
However, shipowners are deprived of the right to limit their liability if the pollution damage
results from the ship 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”. 47
Claims for pollution damage may, under the Convention, be brought directly against the
insurer.48 Claims for pollution damage under the 1992 CLC can be made only against the
registered owner of the ship concerned. This does not preclude victims from claiming
compensation outside the Convention from persons other than the owner. However, the
Convention prohibits claims against the servants or agents of the owner, the members of the
crew, the pilot, any other person performing services for the ship, any charterer (including a
bareboat charterer), manager or operator of the ship, or any person performing salvage
operations or taking preventive measures. This prohibition does not apply if the pollution
damage resulted from the personal act or omission of the person concerned, “committed with
the intent to cause such damage, or recklessly and with knowledge that such damage would
probably result.”49

The compensation payable from the 1992 Fund for a single incident is limited to an aggregate
amount which, as of November 1, 2003, totaled 203 million SDR (US$317 million),
including the sum actually paid by the ship owner (or the insurer) under the 1992 Civil
Liability Convention.50

45
Article VII, International Convention on Civil Liability for Oil Pollution Damage, 1992.
46
Article III.3, International Convention on Civil Liability for Oil Pollution Damage, 1992.
47
Article V.2, International Convention on Civil Liability for Oil Pollution Damage, 1992.
48
Article VII, International Convention on Civil Liability for Oil Pollution Damage, 1992.
49
Article III.4 (a-f), International Convention on Civil Liability for Oil Pollution Damage, 1992.
50
Article 4 (4) of the Fund Convention, 1992.

18 | P a g e
 Oil Spilling: A Disaster in Sea

IX. OIL SPILLS IN INDIA

India has a vast coastline which is susceptible to pollution by a number of marine perils
especially by maritime oil spill accidents which affect sea flora and fauna and the lives of
people living in coastal areas earning their bread and butter from the sea. In the wake of
recent Mumbai oil spill, it is to be seen whether Indian law is appropriate enough to meet the
challenges of claims arisen by such an incident.

Oil spills are not uncommon on Indian coasts. Some of them go unnoticed in the media
because of lesser degree of damage caused to the environment4 In 2010 itself, apart from the
heavily publicized MV Chitra, there was an oil spill incident reported near Gopalpur in
Orissa when approximately eight tons of oil escaped from vessel MV Malavika. In 2009, two
maritime accidents rang alarm bells of possible oil spills in Mangalore and Paradip. 51
However, because of swift action undertaken by the concerned agencies in mitigating the oil
pollution threats and quick clean-up action there were no environmental disasters of high
magnitude. In November 2009, the Fourteenth National Oil Spill Disaster Contingency Plan
(NOS-DCP) and Preparedness Meeting stressed on the need to review preparedness and
response capabilities, with a view to prepare all agencies to respond to any contingency
which may arise out at sea. Also, in the wake of mystery oil spill affecting large tracts of
Gujarat and Maharashtra coast,52 an urgent requirement of setting up a modern laboratory for
undertaking oil finger printing was expressed.

The spill in May 2010 highlighted the hazards of the offshore oil exploration and production
and posed an important question as to the preparedness of the state in case if an accident of
the magnitude of BP occurs in Indian waters. Are we prepared to tackle the menace which is
a byproduct of technological advancement and development? The Fifteenth National Oil Spill
Disaster Contingency Plan (NOS-DCP) which was held in the shadow of BP disaster,
deliberated upon establishing Tier-I facilities in major ports, establishment of oil spill
response organization for tackling large oil spills, preparation of contingency plan by the
coastal states for oil pollution, legislative efforts for NOSDCP, establishment of coastal bio-

51
“Oil spill fuels eco-dissaster fears in Paradip”, The Times of India, available at
http://timesofindia.indiatimes.com/city/bhubaneswar/OilspillfuelsecodissasterfearsinParadip/articleshow/
5039176.c ms#ixzz16QN5bZSI.
52
“Mystery Oil Spill Strangling South Gujarat”, available at http://www.dnaindia.com/india/report_mystery-
oil-spill-strangling-south-gujarat_1280616.

19 | P a g e
 Oil Spilling: A Disaster in Sea

shield, ocean monitoring through satellites, port reception facilities, utilization of oil cess
fund, etc.53

Before analyzing the liability regime in place in India for oil pollution we shall first analyze
the regime in place for tackling with the menace of oil spill.

A. Response to Oil Spills

After the adoption of the OPRC convention by the IMO in 1990 with final Act and ten
resolutions and promulgation of the convention in 1995, India became one of the few
countries that readily accepted the convention. Immediately, India started working on its
provisions for compliance, and promulgated its national contingency plan on oil spill
response. The Indian Coast Guard54 is the national authority under the National Oil Spill
Disaster Contingency Plan (NOSDCP) for coordination of response to oil spills in Indian
waters.

The maritime zones of India are divided into three regions: West, East, and Andaman &
Nicobar. These regions are further divided into 11 districts. The regional commanders are
responsible for combating oil spills in their respective areas of responsibility under the
Regional Oil Spill Disaster Contingency Plans (ROS-DCP). There are three-response centers
- one in each region –with qualified response personnel and well-stocked inventory of
response equipment. Oil companies, ports, and oil platforms are to formulate their own local
contingency plans and should be able respond to oils spills within their designated areas. The
Coast Guard handles oil spills directly in the rest of the maritime zones. There are various
resource agencies under the NOS-DCP, with which the Coast Guard co-ordinate in case of oil
spill.

The NOS-DCP prepared by India contains information regarding oil pollution reporting
procedures. It also contains actions to be taken by various parties on receipt of oil pollution
reports. Limited research in the field of oil spill management is carried out in India in
national laboratories. The Indian Coast Guard after the promulgation of the NOS-DCP, is
conducting various training programs for oil industry, ports, and other agencies on oil spill
response free of cost. These training programs are on the lines of the IMO pollution response
training program level 1 and 2.

53
The Fifteenth National Oil Spill Disaster Contingency Plan (NOS-DCP) and Preparedness Meeting’s details
available at http://www.indiancoastguard.nic.in/.
54
The Coast Guard is the national agency for ensuring marine environment security in India.

20 | P a g e
 Oil Spilling: A Disaster in Sea

Regional Contingency Plan sponsored by the UNEP for regional and bilateral agreement for
South Asia, under the UN Clean Seas Program is under finalization. The countries that will
be covered by bilateral agreement are Bangladesh, India, Maldives, Pakistan, and Sri Lanka.
This Plan envisages mutual cross border assistance and movement of equipment and
personnel to respond to oil spills in the seas across the region.55

B. Liability Regime

The sources of the law of liability for maritime accidents in India are: international custom,
treaty law based on international conventions, decisions of the Indian courts and those of
foreign countries as recognized by the Indian courts. Maritime activities are governed by a
host of heterogeneous laws and the law relating to liability for maritime accidents has been
codified by the Merchant Shipping Act, 1958 (MSA). The basic structure visualized in this
Act is similar to the statutes of many Commonwealth countries with certain essential
modifications to suit the Indian conditions

The MSA applies to every Indian ship, wherever it is, and every foreign ship while it is at a
port or place in India or within the territorial waters of India or any marine areas adjacent
thereto over which India has exclusive jurisdiction in regard to control of marine pollution. 56
It does not apply to warships or ships owned or operated by a state for non-commercial
purposes. The MSA by virtue of Parts IX, 57 X58, XA,59 XB,60 X C61 & XI A62 provides for a
liability and insurance regime. Part IX provides for all the rules that have to be taken care of
concerning the safety of a ship in a marine adventure including life saving appliances, 63 radio
requirements,64 fire appliances,65 signaling appliances,66 safety certificates67 and

55
“Implementation of OPRC Convention In India–A Report”, annex one available at
http://www.indiancoastguard.nic.in/.
56
Section 352G, MSA.
57
Part IX deals with provisions related to Safety.
58
Part X deals with Collisions, accidents at sea and liability.
59
Part XA deals with the Limitation of Liability.,
60
Part XB deals with the Civil Liability for Oil Pollution Damage. It was amended by the Merchant Shipping
(Amendment) Act, 2002.
61
Part XC deals with the International Compensation Fund. It was introduced by the Amendment Act, 2002 to
deal with the requirements of the international oil pollution compensation fund.
62
Part XIA deals with the Prevention and Containment of Pollution of the Sea by Oil.
63
Section 288, MSA.
64
Section 291 to 296, MSA.
65
Section 289 and 290, MSA.
66
Section 297, MSA.
67
Section 299 to 309A, MSA.

21 | P a g e
 Oil Spilling: A Disaster in Sea

seaworthiness. Section 334 prohibits an unworthy ship to be sent into the sea thereby
endangering life of any person and makes the master of the ship who knowingly takes such a
ship to sea liable unless he proves that such a voyage was reasonable and justifiable under the
circumstances.68

X. CONCLUSION AND SUGGESTIONS

Oil spill has devastating effects on marine flora and fauna. A spill of a dramatic magnitude,
as Exxon Valdez or the recent BP oil spill, can possibly deaden the marine environment
affecting the lives of the people in more than expected ways. In an incident like BP there is
danger of loss of life, there is of course damage to marine flora and fauna, fisheries are
destroyed robbing those dependent on them for their livelihood; there is loss of business and
working days as water is rendered un-navigable causing diversion of sea routes and tourism
industry is essentially affected. All this can lead to depression both mental as well as
economic to persons who are dependent upon sea as the source of their livelihood.

Because of the nature of marine pollution as being such that international cooperation
becomes imperative for the purpose of containing it, an international regime comprising of
various conventions was developed. Since Torrey Canyon to BP every single incident of oil
spill has highlighted the importance of an effective international regime to help contain the
disastrous effects of oil spill, preparing the states in advance with national contingency plans
in case of an accident and last but not the least fixing the liability and channeling the same.
Time and again, there has been criticism against the limitation of liability especially in case
spectacular oil spills. It is not suggested here that the international compensation regime
established by the Civil Liability and Fund Conventions is in perfect. However, it would be
fair to say that this regime has functioned reasonably well in most cases over the years, and it
is one of the most successful compensation schemes in existence.

The history of oil pollution liability has, however, shown that the conventions have been
quite reactive and with every incident of graver implications have successfully amended
themselves to raise them to match up to the requirements of greater oil spills. It is particularly
important that the great majority of all compensation claims have been settled amicably as a
result of negotiations. The international regime is a good example of an international solution

68
Section 334(2), MSA.

22 | P a g e
 Oil Spilling: A Disaster in Sea

to a global problem, facilitating international cooperation regarding compensation for damage

caused by tanker oil spills and environmental protection.

There have been efforts on the part of the international arena to strengthen the liability
regime; however, sadly, not much is done in evaluating the costs of harm dome done to the
ecological environment. It is to be kept in mind that every oil spill is a unique case in itself
and there is no means of calculating an average cost of oil spill as cost of damage by every
spill would depend on multiple factors. Delimiting the liability might sound attractive to ears
but practically the strict liability principle the way it is being in force in the international
arena is working sufficiently the only drawback being the non-consideration of ecological
damage while evaluating damages.

Keeping in view the long term effects on the ecological environment and people dependent
on the same, international legal rules concerning the marine based oil pollution must
therefore be able to take into account not only the extent of the damage caused, but also the
cause of the damage. This means that not only traditional damage to property and personal
injury, but also damage to the environment per se should be taken into account.

India owing to is vast coastline is vulnerable to oil spills and a spill of the magnitude of
Exxon Valdez or BP would be devastating for the economy. It wouldn’t only affect the
people living on coastal areas but the whole of economy as we are basically dependent on sea
for carriage of goods. In a spill scenario, along with the export industry, tourism industry and
fishing industry would also suffer immense losses. The big question that remains to be
answered is that are we prepared for the worst case scenario or are we waiting for a disaster
to occur so that we can work on how it could have been avoided?

India follows the civil liability principle for oil pollution damage. The Merchant Shipping Act
by virtue of Part XB and XC incorporates the provisions of CLC and Fund Convention
holding the owner liable for oil pollution damage and limiting the liability for the same while
constituting the limitation fund. It is to be seen here that does the Merchant Shipping Act
translates the spirit of International conventions in itself or is it deficient in its application
when dealing with incidents of oil pollution.

The first major lacunae that can be said to be present in the Merchant Shipping Act is the
non-mentioning of the liability caps. Section 352 merely says that “the owner shall be entitled
to limit his liability under this Part, in respect of any one or more incident, as may be
prescribed.” Unlike the CLC which by virtue of article V provides for the formula for

23 | P a g e
 Oil Spilling: A Disaster in Sea

calculating limitation of liability. The provisions for compulsory insurance, financial

guarantee and rights of compensation by subrogation have been imbibed from CLC
reasonably well into the MSA. But the thing that has to be taken into consideration here is
that if doing this much is sufficient enough for the purpose of securing our coast.

As far as liability of owner is concerned both CLC and MSA hold the owner liable for “any
pollution damage caused by oil which has escaped or been discharged from the ship as a
result of the incident.”69 This provision can be interpreted to include immediate damage
caused to marine flora and fauna but cannot be stretched to include in its ambit the damage
caused to the natural resources. Nor claims could be made by people dependent on the coast
for compensation for loss of business. There is no criminal liability regime for punishing the
liable party for oil pollution under the scheme of MSA. However, oil pollution can be said to
be causing public nuisance and so under the Indian Penal Code, a person can be held guilty
for causing public nuisance. Section 268 of the IPC would give any affected person standing
in case of “injury, obstruction, danger or annoyance” caused to any “persons who may have
occasion to use any public right.” Section 278 holds the person responsible for vitiating the
atmosphere so as to “make it noxious to the health of persons in general dwelling or carrying
on business in the neighborhood or passing along a public way”. However the problem in
applying the provision in case of oil pollution is the penalty that is prescribed which is a
trivial sum up to 500 Rupees

Another problem with the statutory regime dealing with oil pollution in India is that it doesn’t
differentiate between the accidental and operational discharge of oil in the sea and in the
absence of accession to the Bunker convention, incidents like Goa tarring of beaches would
be covered under the merchant shipping act only. It is high time that India signs the Bunker
convention.

Both MSA as well as CLC makes the liability of the owner join and several however it does
not include in its ambit persons that might be involved in the accident closely like the
charterer, the crew and the master of the ship and as well as the port authorities who are
responsible for coordinating signals. In order to prevent accidents at sea the liability regime
of the country needs to be strengthened by imposing criminal liability on the owner as well
allied persons who are closely associated with the spill. This can be done either by enacting a
special law with stricter penalties on the lines of the Civil Nuclear Liability Bill, 2010 or by
69
6 Section 352-I of MSA and article III, International Convention on Civil Liability for Oil Pollution Damage,
1992.

24 | P a g e
 Oil Spilling: A Disaster in Sea

adding a separate part to the current MSA imposing heavy fines for negligence and non
proper maintenance of ships and offshore installations.

The coastguard is responsible for the protection of the coastal environment and much would
depend on their competence as to how they respond to any devastating emergency. For that it
should be made sure that they are properly trained and are well equipped to handle situations
like BP. Presently, the coastguards are deliberating to establish a Teir-1 system and
exhaustive oil spill response mechanism. The efforts of coastguard should be prioritized by a
statutory backing and proper funding.

Protection of seas by oil pollution is of immense importance and all measures should be taken
to prevent and protect our coastlines. We should be guarded before hand that a tragedy like
Exxon Valdez or BP does not occur in our waters and God forbid even if it does, we should
be well prepared in advance to tackle it. India, is today a leader among the nations of the
world. It occupies a commanding position in the Indian Ocean. It must provide the lead to
other Asian and African countries by providing tougher laws in the matter of protection of the
environment. Specially, in matters of dangers resulting from oil spills, the developing
countries will stand to lose very heavily. To overcome this, the policy of “prevention is
always better than cure” has to be followed. For prevention of an environment catastrophe
there is an urgent need of new laws backed by international agreements as has been suggested
above.

XI. BIBLIOGRAPHY

Conventions & Statute

 International Convention for the Prevention of Pollution of the Sea by Oil, 1954.
 International Convention on Oil Pollution Preparedness, Response and Co-operation,
1990.
 United Nations Convention on the Law of the Sea, 1982.
 International Convention on Civil Liability for Oil Pollution Damage, 1992.
 International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1992.
 International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.
 The Merchant Shipping Act, 1958

25 | P a g e
 Oil Spilling: A Disaster in Sea

Books

 David W. Abecassis, The Law and Practice Relating to Oil Pollution from Ships, 3
(Butterworth, London, 1st ed 1978).
 E.D. Brown, The International Law of Seas 377 (Dartmouth Publishing Company,
Sydney Vermont, 1st ed 2004).
 Simon Gault, Marsden on Collisions at Sea, 413 (Sweet and Maxwell, London, 13th
ed. 2003).
 Phillippe Sands Q C, Principles of International Environment Law, 448 (Cambridge
University Press, New York 2nd ed. 2009).

 R B Clarke, Marine Pollution, 33 (Oxford Science Publication, Oxford, 2nd ed.

1989).
 Robert P. Grime, Shipping Law, 218 (Sweet and Maxwell London 1st ed 1978).

Case Laws
 Ryland v. Fletcher, (1868) L.R. 3 H.L. 330.
 In re Oil Spill Amoco Cadiz, 1998 U.S. Dist. Lexis 16832 29.

Articles

 Andrea Bigano and Paul Sheehan, “Assessing the Risk of Oil Spills in the
Mediterranean: the Case of the Route from the Black Sea to Italy.”
 Christine M. Augusyniak, “Economic Valuation of Services Provided by Natural
Resources: Putting a Price on the ‘Priceless’,” 45 Baylor L. Rev. 389 (1993).

 Michael L. Rustad Thomas F. Lambert Jr. & Thomas H. Koenig, “Reconceptualizing

State AG Parens Patriae as Crimtorts”, Suffolk University Law Review 10 (2010).
 Bruce B Weyhrauch, “Oil Spill Litigation: Private Party Lawsuits and Limitations”,
27 Land & Water L. Rev. 370 (1992).
 Vincent J. Foley& Christopher R. Nolant, “The Erika Judgment- Environmental
Liability and Places of Refuge:A Sea Change in Civil and Criminal Responsibility
that the Maritime Community Must Heed”, 33 Tul. Mar. L.J. 41 (2009).

Online Sources

26 | P a g e
 Oil Spilling: A Disaster in Sea

 “Tar Balls invade Goa’s Coastline”, The Times of India, August 31, 2010, 06:08IST
available at http://timesofindia.indiatimes.com/city/goa/Tar-balls-invade-
Goascoastline/articleshow/6465768.cms.
 James Boyd, “Lost Ecosystem Goods and Services as a Measure of Marine Oil
Pollution Damages”, Discussion Paper 10-31, RFF May 2010 available at
www.rff.org.

 “Oil spill fuels eco-dissaster fears in Paradip”, The Times of India, available at
http://timesofindia.indiatimes.com/city/bhubaneswar/OilspillfuelsecodissasterfearsinP
aradip/articleshow/5039176.c ms#ixzz16QN5bZSI.
 “Mystery Oil Spill Strangling South Gujarat,” available at
http://www.dnaindia.com/india/report_mystery-oil-spill-strangling-south-
gujarat_1280616.
 “Implementation of OPRC Convention In India–A Report”, annex one available at
http://www.indiancoastguard.nic.in/.
 The Fifteenth National Oil Spill Disaster Contingency Plan (NOS-DCP) and
Preparedness Meeting’s details available at http://www.indiancoastguard.nic.in/.
 Office of Response & Restoration, Details of tar balls,
http://response.restoration.noaa.gov.
 Niger Delta Human Development Report, 2006 ,
http://hdr.undp.org/en/reports/nationalreports/africa/nigeria/name,3368,en.html.
 Edward H.P. brans, “Liability for Damage to Public Natural Resource Standing
Damage and Damage Assessment”, (Kluwer Law International 2001) available at
www.dundee.ac.uk/cepmlp/journal/html/vol10/article10-1.pdf.
 “Mumbai Coast Oil Spill Stops Ship movement; Moradabad Exporters Incur Losses”
ANI, August,14, 2010, available at http://www.dailyindia.com/show/391758.php.
 “Assessing the Social costs of Oil Spills: The Amoco Cadiz case Study” National
Ocean Service, U.S Dept of Commerce, (1983) available at
http://www.archive.org/details/ecologicalstudyo00noaa.

27 | P a g e