SA’s oil pollution laws in urgent need of review

As the world looks on in horror at BP’s desperate attempts to remedy the Gulf of Mexico oil spill, officially the worst such disaster in US history, alarm bells should be ringing in South Africa’s corridors of power to move urgently to enact welloverdue oil pollution laws. Memories are short but three of the world’s worst spills have occurred off the South African coast, and it’s just a matter of time, say shipping experts, before another ship comes adrift. Without legislation to increase the limits for oil pollution claims, South African claimants would be able to recover approximately R170 million from the owner of the ship and its insurer. Maritime lawyer, Marius Diemont, says government has been tardy in getting the necessary legislation enacted, an issue the Maritime Law Association has been pushing for some time. “This is a really urgent issue. Should there be a major oil pollution casualty off the South African coast, the taxpayer will bear the brunt of these costs.” South Africa acceded to the 1969 Convention of Civil Liability for Oil Pollution Damage (‘Civil Liability Convention’) by passing an oil pollution act in 1976, later named the Marine Pollution (Control and Civil Liability) Act. The effect of this act, explains Diemont, is that it pegged in time claims to 1976 levels. Shipowners have a maximum liability of 14 million SDRs (Special Drawing Rights) for any one oil pollution incident, approximately R170 million in today’s value. In the meantime, the international community has moved forward and increased the limits of the Civil Liability Convention to 89.77 million SDRs – approximately R1 billion. “Although Parliament approved the protocol to implement the higher limits of the Convention in 1997, the necessary legal instruments to give effect to the Convention’s provisions have not yet been implemented. “This means that any claim from an oil pollution incident would be capped at the 1976 level.” Under the Civil Liability Convention, claimants are entitled to seek redress from registered shipowners for oil pollution damage, the total amount of compensation limited to the tonnage of the specific ship, subject to an overall limit of 89.77 million SDRs. Diemont says the International Oil Pollution Compensation (IOPC) Fund was established to pay those unable to seek compensation under the provisions of the Civil Liability Convention. “The total liability of compensation payable by the IOPC Fund is two million SDRs (approximately R2 billion), which may be increased to 300 million SDRs (around R3 billion) in certain instances. “However, for the IOPC Fund to pay full compensation to South African claimants, South Africa must first amend its legislation to bring the domestic liability regime into line with the current Civil Liability Convention.” Draft bills to make provision for this were published in April last year. Two of those are understood to have been finalised but cannot be implemented until the Merchant Shipping (International Oil Pollution Compensation Fund) (Contributions Bill) 2009 has been finalised. Only then will all the bills enter into the parliamentary process to be passed into law. South Africa’s worst disaster occurred on August 6, 1983, when the Castillo de Bellver exploded following a fire off Saldanha, spewing about 252 000 tonnes of oil into the ocean.