Compensation of damages
In 1978, the French State, the Breton communes and the economic operators
affected by the Amoco Cadiz pollution had no other alternative than to embark
upon legal proceedings in the United States against the shipowner,
as the international conventions and national rules in force at the time
made it impossible to obtain satisfactory compensation in a straightforward
manner from a French court.
Considerable progress has been made since in favour of those affected. Whether
he is responsible for the spill or not, the owner of a tanker is liable
for the damages caused up to a certain limit. The International Oil Pollution
Compensation Funds (IOPC Funds)
can be approached for supplementary compensation, in excess of the tanker
owner’s limit of liability. The assessment of damages is determined
by the law of the affected country, within the limits of the international
convention governing the funds.
Compensation is subject to strict rules, in order to avoid abuse. The use of theoretical mathematical models to assess global damages is not accepted and each claimant has to individually demonstrate his loss. This can be disconcerting for claimants, who find themselves having to show their account books to international experts and to prove the relationship between the pollution and their damages, when they might have expected the polluter to come with a cheque in hand. However, representatives from the IOPC Funds are pro-active in assisting local claimants to understand how to make a successful claim. This approach can also provoke criticism from scientists and economists who are used to assessing the evolution of ecosystems and the economy of usable resources using mathematical models.
It is therefore not surprising that compensation is an extremely controversial subject. Once duplications in claims and saved expenses have been deducted, payment offers are often considerably lower than the claimed amounts.
Most claimants recognise the logic of the system and accept amicable settlements.
However, some do not and decide to challenge the rules in force in the national
courts of the country affected. As a result, most large oil
spills of the last few decades have failed to avoid a major lawsuit.
Some such lawsuits end up being terminated after some years by an out-of-court
settlement, while others have extended for more than a decade.
Did you know?
The problematic link
A turbot breeder is affected by an oil spill and loses a large part of his
stock in the second year. However, he manages to save the majority of his
stock from the first year by improvising a semi-closed water circulation
system. The rest of his stock from the second year is unfit for consumption
and is destroyed a few months later as a result of an administrative decision.
The breeder continues to maintain and feed his stock from the first year,
which seems to have suffered little.
The following year, these fish are seriously affected by a common illness
on fish farms, which can usually be treated without any major damage. Other
fish farms in the region which were unaffected by the pollution the previous
year suffer only minimal losses. The breeder is convinced that his losses
are due to medium term effects of the oil, which made his animals fragile.
But how can he prove, a year on, the link between the losses suffered and
the past oil spill?
There is no obvious solution to this type of problem and it can often require
court arbitration to resolve such cases.