remedying of environmental damage in the north

22.04.23 Åbo Akademi - Domkyrkotorget 3 - 20500 Åbo 1

Remedying of Environmental Remedying of Environmental DamageDamage

in the Northin the NorthProf. Peter Wetterstein

26.8.2010


1. Concepts1. Concepts “Remediation” extends further than to a mere

removal of oil and other pollutants. Remediation embodies an effort to repair or replenish the environment to its previous state. Cf. the definition of “remedial measures” in Article 2.11 of the EU Directive 2004/35 (infra):“’remedial measures’ means any action, or combination of actions, including mitigating or interim measures to restore, rehabilitate or replace damaged natural resources and/or impaired services, or to provide an equivalent alternative to those resources or services as foreseen in Annex II.”

The notion of “environmental damage” differs nationally and internationally, as will be seen.


2. 2. Environmental liabilities under Part Environmental liabilities under Part XII of UNCLOS 1982XII of UNCLOS 1982 general obligation according to Article

192: “States have the obligation to protect

and preserve the maritime environment”

according to Article 194, States shall take measures to prevent, reduce and control pollution of the marine environment (including pollution from vessels, installations and devices)


States shall co-operate on a global basis and, as appropriate, on a regional basis, for the protection and preservation of the marine environment, taking into account characteristic regional features (Article 197).

Articles 204 and 206 contain provisions on monitoring of the risks or effects of pollution and the assessment of potential effects of activities.


Section 5 contains provisions on the obligation of States to adopt international rules and national legislation to prevent, reduce and control pollution of the marine environment. Regarding pollution from sea-bed activities and from vessels reference is made to Articles 208 and 211.


Under the 1992 Civil Liability Convention (CLC) there is strict liability (with some exceptions) of the registered owner of a vessel, constructed or adapted for the carriage of persistent oil as bulk cargo, which causes pollution damage in a Contracting State or within its economic zone. In respect of a vessel capable of carrying both oil and other cargoes, the Convention shall be applicable only when the vessel is carrying persistent oil as bulk cargo and to voyages following such carriage.

3. 3. Remedying of environmental Remedying of environmental damage – international damage – international conventionsconventions


There are similar liability provisions in the 2001 Bunker Convention. However, the person liable for bunker spills from vessels is the “shipowner”, who is defined as “the owner, including the registered owner, bare boat charterer, manager and operator of the ship”. Where more than one person is liable, their liability is joint and several.

Both of these Conventions have entered into force and most EU states have ratified and implemented them.


“pollution damage” is defined in the CLC as a) “loss or damage caused outside the ship by

contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; (my italics)

b) the costs of preventive measures and further loss or damage caused by preventive measures” (Article 1.6).


in addition to personal injuries, property damage and economic losses, damage to the environment per se is covered by the definition – although the coverage is comparatively restricted (cf. “Complementary” and “Compensatory” remediation under the EU Directive, infra)

the pollution damage concept (Article 1.9) of the 2001 Bunker Convention squares with the corresponding formulation of the CLC


The 1996 HNS Convention has not yet entered into force. This Convention applies to “any sea-going vessel and sea-borne craft, of any type whatsoever” carrying HNS substances (in the main, such substances are chemicals, oil, LNG and LPG).

The HNS Convention defines “damage” as including loss of life or personal injury, loss of or damage to property outside the ship carrying HNS substances, loss or damage by conta mination of the environment, and the costs of preventive measures as well as further loss or damage caused by them.


The definition makes it clear that claims for damage to the environment are admissible, but they are restricted, as under the CLC, to “costs of reasonable measures of reinstatement actually undertaken or to be undertaken” (Article 1.6).


4. 4. Remedying of environmental Remedying of environmental damage – Nordic lawsdamage – Nordic laws In all the Nordic countries there are

general laws on environmental impairment liability which to a varying degree are relevant also for persons performing shipping activities. These rules impose strict liability on the operator of an environmentally harmful activity.

the Finnish EDCA (Environmental Damage Compensation Act, 1994) and the Swedish Environmental Code (1998) cover activities performed on a “specific area”/”real property”, thus excluding pollution from moving vessels. There is no definition of “environment”.


In contrast, the compensation rules of the Norwegian Forurensningsloven (1981) are not restricted to pollution from real property and, consequently, the rules are applicable also to pollution caused by means of transport, e.g., vessels.

Only activities specifically mentioned in an Appendix to the Danish ACED (Act on Compensation for Environmental Damage, 1994) give rise to strict liability under the Act, and these do not include shipping.


Regarding the question of remedying of environmental damage, the Nordic countries have implemented the “pollution damage” concept of the CLC and the Bunker Convention into their national rules on oil pollution liability.


Furthermore, the general laws on environmental impairment liability in these countries provide compensation for infringement of both private and public rights. Thus reasonable costs of restoration of the environment per se are compensated (with the exception of the Swedish Environmental Code, Chapter 32), but alternative restoration (Cf. “Complementary” remediation under the EU Directive (infra) is mentioned only in the explanatory notes to the Norwegian Forurensningsloven. Finally, all the Nordic Acts on environmental impairment liability seem to exclude compensation for interim losses of natural resources and/or services.


5. 5. The EU Directive The EU Directive 2004/35 2004/35 The EU Directive 2004/35 on

environmental liability with regard to the prevention and remedying of environmental damage entered into force on 30 April 2004 and became fully binding on 30 April 2007. The Directive is, however, a minimum Directive and the implementation of it in the Member States differs.


The Directive covers environmental damage and imminent threat of such damage caused by any of the occupational activities listed in Annex III. These activities include, inter alia, the manufacture, use, storage, and transport of dangerous or polluting substances and goods (including waste)

The operator of the activities listed in Annex III shall bear the costs for the preventive and remedial actions taken pursuant to the Directive (Article 8.1, strict liability with some exceptions). Activities other than those mentioned in Annex III are subject to a fault-based regime.


The Directive has accepted the principle of liability for damage to the environment per se, i.e., the environmental liability under the Directive is exclusively a liability vis-à-vis the public, it aims at protecting public rights. The competent authorities are given power to require that the preventive actions and remedial measures are taken by the operator, and, if needed, to take these measures itself.


The notion of environmental damage covers a) damage to protected species and natural

habitats, which is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species,

b) water damage, which is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in Directive 2000/60/EC, of the waters concerned, and

c) land damage, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro organisms


In the Directive damage has been defined as “a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly” (Article 2.2)

The notion preventive measures is rather “traditional”, i.e., it comprises all measures taken in response to an event, act or omission that has created an imminent threat of environmental damage, with a view to preventing or minimising that damage. Remedying of environmental damage is of greater interest.


Remedying of environmental damage, in relation to protected species and natural habitats and water, is achieved through the restoration of the environment to its baseline condition. Remediation is divided into “primary remediation”, “complementary remediation” and “compensatory remediation”.

http://fi.wikipedia.org/wiki/Tiedosto:Bufo_bufo_(Marek_Szczepanek).jpg


These concepts are defined in Annex II as follows:

a) “‘Primary’ remediation is any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition;

b) ‘Complementary’ remediation is any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring (my italics) the damaged natural resources and/or services;

c) ‘Compensatory’ remediation is any action taken to compensate for interim losses (my italics) of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect”


Remediation of land damage aims at ensuring, “as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the contaminated land, taking account of its current use or approved future use at the time of the damage, no longer poses any significant risk of adversely affecting human health” (Annex II,2).


The EU Directive contains in Article 4.2. and Annex IV exceptions for environmental damage (or the imminent threat thereof) arising from an incident in respect of which liability or compensation falls within the scope of, inter alia, the 1992 CLC Convention, the 1996 HNS Convention and the 2001 Bunker Convention. The Conventions should be in force in the Member State concerned. The EU legislator excluded completely the application of the Directive to any aspect of damage covered by these Conventions.


6. 6. Choice of applicable lawChoice of applicable law the general principle of lex loci delicti

commissi, i.e., the applicable law is the law of the country in which the event giving rise to the damage occurred; however, varying interpretations/applications

oil pollution: lex fori is applicable regarding the CLC, although it is not explicitly stated in the text

limitation of liability: lex fori is applicable (cf. Article 15(1) of the LLMC 1976). There is also an explicit lex fori-provision regarding the constitution and distribution of a limitation fund (Article 14)


the Rome II-Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations), in force on 20 August 2007: – universal application, i.e., any law

specified by the Regulation (lex causae) shall be applied whether or not it is the law of a Member State (Article 3). But the respondent must be sued in a Member State (cf. the Brussels I-Regulation)


– the general rule is lex loci damni: “Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the county in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur” (Article 4.1) – exceptions to the main rule: lex domicili

communis (Article 4.2) and the “escape clause” (Article 4.3)


– some special rules of relevance for shipping and offshore activities: • the law applicable to a non-

contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the lex loci damni, unless the person seeking compensation for damage chooses to base his claim on the lex loci delicti commissi (Article 7)


• according to the preamble (24), “environmental damage” should be understood as meaning adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms

• the geographical scope of the Rome II-Regulation embraces the territorial waters and to some extent the EEZ (e.g., Finland)

• special problems on the “high seas”: the law of the flag (register) or lex fori


• the Rome II-Regulation and the CLC Convention: does Article 7 supersede the lex fori-rule? Cf. the Bunker and HNS Conventions

• the Rome II-Regulation and the EU Directive 2004/35: problems of application

• The Regulation does not affect the lex fori-rules of the LLMC 1976/96

• Article 18 contains an important clarification concerning direct action against the insurer of the person liable: “The person having suffered damage may bring his or her claim directly against the insurer of the person liable to provide compensation if the law applicable to the non-contractual obligation or the law applicable to the insurance contract so provides”


7. Conclusions7. Conclusions my focus when dealing with the topic

“Remedying of Environmental damage in the North” has been primarily civil liability

as seen, there are differing rules on environmental liability, including remedying of environmental damage, and especially regarding the concept of “environmental damage”

most EU States have ratified the CLC and Bunker Conventions and will probably accede to the HNS Convention


the “pollution damage” definition of these Conventions embraces primary restoration and, as it seems, to some extent alternative restoration, but does not compensate the public for “interim losses” of natural resources (i.e., infringement of public rights)

in this respect the EU Directive goes further, covering also “Compensatory” remediation – provided, of course, that the damage falls under the scope of the Directive

this brings as to both the importance of conflict of law-rules and the need to harmonise substantial rules on remedying of environmental damage

remedying of environmental damage in the north

Documents

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effects of pollution

marine environment

control pollution

obligation of states

notion of environmental

maritime environment

discharge of oil