Pollution Prevention, Response and Compensation - Prevention of Pollution of the Marine Environment from Vessels - page 57

upper limit from 133 to 420 SDRs per ton, and increased the ship-owner s ceiling

'

from 14 to 59.7 million SDRs. 121
The prevailing test under CLC 69 was replaced with the

stricter provision, making the breaking of limitation of claims against the ship-
owner more difficult. Under this provision, the ship-owner may not limit the claim
if the claimant can prove that “the pollution damage resulted from [the owner

actual fault and privity

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s]
personal act or omission, committed with the intent to cause such damage, or
recklessly and with knowledge that such damage would probably result”. 122
The CLC 92 expressly excludes environmental damage per se . 123 Although
covering pollution damage comprehensively, environmental damage compensation
is limited to costs incurred for reasonable measures to reinstatement actually
undertaken or to be undertaken. 124 However, the expenses of preventive measures
and further loss of damage caused by preventive measures, even when no spill of oil
occurs, are in fact covered. 125 The FUND 92 increased the ceiling of compensation
payable from the IOPC Fund to 135 million SDR (about US

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$ 173 million) which is

inclusive of any amount paid under the CLC 92. 126
A 2000 amendment to the CLC 92 saw the upper limit of liability raised to 89.77
million SDR (US 115 million). This amendment also increased the amount payable

from the IOPC Fund from 135 million SDR (about US

$

$ 173 million) to 203 million

SDR (US 260 million), which is inclusive of any amount paid under the CLC 92.

Moreover, in 2003, a supplementary fund for oil pollution compensation was
established through the adoption of an optional Protocol. 127
Apart from these Conventions, three others have been adopted to cover pollution
damage by hazardous and noxious substances, bunker oil and wrecks. These are:
the International Convention on Liability and Compensation for Damage in Con-
nection with the Carriage of Hazardous and Noxious Substances by Sea (HNS),
1996 128 ; the International Convention on Civil Liability for Bunker Oil Pollution

$

121 CLC 92, art V(1).
122 CLC 92, art V(2).
123 It is important to note that, “[w]hereas the purpose of treaties to protect marine environment is
to prevent or to mitigate damage to the marine environment itself, the purpose of most liability
treaties is not to impose liability for damage to the environment, but liability for damage to human
beings, their property and their economic circumstances through environment.” de la Fayette
( 2003 ), p. 239. See also, Mason ( 2003 ).
124

CLC 92, art. I (6) (a).

125

CLC 92, art. I (6) (b) and art. II (b).

126

FUND 92, art. 4(b).
127 Protocol of 2003 to the International Convention for the Establishment of an International
Fund for Compensation for Oil Pollution Damage 1992 , opened for signature 16 May 2003,
5 UKTS Cm 6245 (entered into force 3 March 2005).
128 International Convention on Liability and Compensation for Damage in Connection with the
Carriage of Hazardous and Noxious Substances by Sea (HNS), opened for signature 3 May 1996,
35 ILM 1406 (not yet in force) (superseded by 2010 Protocol).