Ship-source Oil Pollution Fund 30 th Anniversary

1. Ship-source Oil Pollution Fund30th Anniversary Presentation by Alfred Popp, C.M., QC

2. Early Years • 1967 Torrey Canyon Disaster led to the adoption of the international regime of liability and compensation for oil pollution caused by tankers(Image source: BBC) • 1969 Brussels Conference adopted the 1969 Civil Liability Convention (1969 CLC) • 1969 Passage of the US tanker, the Manhattan, through the Canadian Arctic • 1970 Arrow incident in Chedobucto Bay, Nova Scotia, resulting in public inquiry, recommending the adoption of a statutory regime of liability and compensation for pollution caused by ships. • 1971 Brussels Conference adopted the 1971 Fund Convention

3. Legislative Outcomes • 1970– adoption of the Arctic Waters Pollution Prevention Act (AWPPA), creating a regime of liability and compensation for a variety of activities in the Canadian Arctic, including ships navigating in Arctic waters north of 60th parallel. • 1970 – adoption of the Canada Shipping Act (CSA), Part XX establishing a regime of liability and compensation for damage caused by pollution from ships, south of the 60th parallel.

4. Legislative Outcomes Salient features of the new regime in the CSA • Basis of liability identical to what was in the 1969 CLC • Limits of liability the same as in the 1969 CLC • Applied to all pollutants carried by ship, not just to oil • Established direct cargo owner liability • Compulsory insurance with direct access against the insurer • Establishment of the Maritime Pollution Claims Fund (MPCF)

5. Difficult Years: 1971 to 1989 Differences between the Canadian regime contained in the amendments to the CSA and the international regime precluded Canadian membership of the 1969 CLC and, later, in the 1971 Fund Convention. Cargo liability provisions remained a dead letter and were eventual repealed. Compulsory insurance could not be brought into force.

6. Difficult Years: 1971 to 1989 Two incidents illustrate the problem of operating a scheme outside the international regime. • 1979Kurdistan incident, again off the coast of Nova Scotia, caused by the break up of the British flagged tanker • 1988Nestucca incident spilling oil off the Oregon coast but spreading into waters off the coast of British Columbia

7. Difficult Years: 1971 to 1989 The first incident took about five years to settle all claims 1979Kurdistan incident The second incident took about three years to settle and involved protracted and expensive litigation in the USA. • 1988Nestucca incident(Image source: Radio Canada, CBC)

8. International Development 1978Amoco Cadiz incident off the coast of France triggered the entry into force of the 1971 Fund Convention. Informal discussions on the margins of the IMO Legal Committee regarding amendments to the 1969 CLC and the 1971 Fund Convention. Working group set up to develop amendments. 1984 diplomatic conference under the auspices of the IMO to adopt two protocols, the so called ‘84 Protocols.

9. International Development One objective was to significantly increase the amount of compensation available under the two conventions so as to attract a wider international participation, in particular in North America. Growing awareness in Canada that the purely domestic regime was not providing adequate compensation.

10. International Development 1989 Exxon Valdez incident off the coast of Alaska, resulting in the adoption in the USA of the Oil Pollution Act of 1990 (OPA 90). The adoption of the OPA 90 precluded the United States from joining the international regime. Failure of the ‘84 Protocols to enter into force.

11. Revision of Canadian Regime 1987 adoption by the Canadian Parliament of amendment to the CSA to implement the international regime in Canada, with significant Canadian add on, notably the Canadian fund as a further level of compensation. 1989 the amendments to the CSA brought into force on a date to coincide with the entry into force for Canada of the 1969 CLC and the 1971 Fund Convention.

12. Revision of Canadian Regime 1989The MPCF was renamed the Ship-source Oil Pollution Fund (SOPF) on 24 April, 1989. SOPF given the responsibility to pay the Canadian contribution to the 1971 Fund Convention The SOPF was also made into a fund of first resort.

13. Further Developments Two new protocols were developed to allow enforcement of the ‘84 Protocols without USA participation. These protocols amended the 1969 CLC and the 1971 Fund Convention. The two new protocols were adopted at a diplomatic conference under the auspices of the IMO in 1992 and came to be known as the ‘92 Protocols.

14. Further Developments The new Protocols were identical with the ‘84 Protocols except for two significant changes: • Entry into force conditions were changed such as to enable the protocols to enter into force without USA participation • Ceiling for contributions per state was introduced The ‘92 Protocols were brought into force for Canada in 1999.

15. Further Developments The Canadian regime of liability and compensation for ship-source pollution, including provisions governing the SOPF, now reside in theMarine Liability Act, 2001. 2003 - A diplomatic conference adopted a protocol establishing the Supplementary Fund, providing further compensation on top of what is provided by the 92 IOPC Fund.

16. Further Developments Canada is party to the 2003 Protocol, so that for Canada there is a regime for oil pollution caused by tankers involving four layers of compensation. • Shipowner liability up to the level of liability provided in the 1992 CLC Protocol • 1992 IOPC Fund • 2003 Supplementary Fund • SOPF