By Daniel Nancoo
Just over a month ago, a barge (still unidentified and unclaimed) mysteriously capsized off the coast of Tobago spilling over 420,000 gallons of oil into the Caribbean Sea. The oil from this mystery barge has to date spread as far as the Netherland Antilles and continues to threaten the delicate coral and marine ecosystem in Tobago. The ecological impact arising from this disaster has brought our local environmental laws into the limelight so this article will take a closer look on the current legislation and policies in place to treat with maritime oil pollution and damage.
At present, our main legislation against maritime oil pollution is the Oil Pollution of Territorial Waters Act which makes provision against the discharge or escape of oil into our waters. However, this Act was enacted in 1951 and this much is evident when one considers the provision that “if any oil is discharged, or allowed to escape into any waters to which this Act applies from any vessel, the owner or master of the vessel from which the oil is discharged or allowed to escape is liable on summary conviction to a fine of ten thousand dollars and to imprisonment for twelve months.” A ten thousand dollar fine in 2024 is arguably a pittance in the multi-billion dollar industry that is oil and gas. More pertinently, this section only addresses the criminal liability for oil pollution damage that the owner or master of a vessel will face. Further, there are no express provision regarding compensation to persons or entities affected by an incident of maritime oil pollution in contrast to the Petroleum (Pollution Compensation) Regulations implemented by the Petroleum Act relative to oil pollution damage affecting land.
The lack of express provisions to treat with liability for compensation in the Act could lead to ambiguity as to who a claimant affected by oil pollution should pursue. The master of the vessel may not necessarily be the owner of the vessel so who does a claimant sue – the master/captain operating the vessel at the time of the oil pollution, the actual owner and proprietor of the vessel or in the case of our mystery barge, the master or owner of the tug hauling the barge? The International Convention on Civil Liability for Oil Pollution Damage (“the Convention”), to which Trinidad and Tobago is a signatory, provides clarity to this issue by imposing strict liability on the owner of the vessel for pollution damage caused by the escape or discharge of persistent oil from the vessel within a signatory’s territory including the territorial waters, seabed, shores, beaches and ecology within. This means that the owner is liable even in the absence of any fault on his part. This is subject to a few exceptions such as the damage caused by an act of war, a third party’s intentional act or the negligence of a government authority responsible for the maintenance of lights or other navigational aids.
Ultimately, the liability is channelled to the owner and all claims should be directed to him as opposed to any other person using or controlling the vessel. This is because the Convention also imposes onto the owners a requirement to maintain an insurance policy for the vessel. The Convention applies to all seagoing vessels actually carrying oil in bulk as cargo, but only ships carrying more than 2,000 tons of oil are required to maintain insurance in respect of oil pollution damage. The insurance liability is dependent on the vessel’s tonnage but the owner will not be entitled to limit his insurance liability if it is proved that the pollution damage was caused from his personal act or omission, committed with the intent to cause the damage, or recklessly and with knowledge that such damage would probably result from those actions.
Compensation for injury and loss suffered is but one issue. What about clean-up costs? The Convention extends the strict liability upon the owners of the vessels to include the costs of post-spillage prevention and clean-up costs. The wide-ranging liability ascribed to an owner of a vessel which has caused oil pollution damage may very well be the reason no one has claimed the mystery barge in Tobago. Given this liability applies to damage done to the territorial waters, seabed, shores, beaches and the general ecosystem, a vessel’s insurance coverage may be well exceeded by the cost of compensation and clean-up. For that reason, countries can rely upon the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. Quite the mouthful, but this Convention established the International Oil Pollution Compensation (IOPC) Fund which assists with the costs of reasonable clean-up operations. Thus, hypothetically, in the case of this mystery barge, should the costs of clean-up exceed the limited liability of its owner, Trinidad and Tobago may make a claim to the IOPC Fund for the expenditure in excess. Notably, a claim to the IOPC Fund is not limited to sovereign states, as a private citizen or entity who has incurred costs in taking reasonable measures to minimise or prevent oil pollution damage can also make a claim.
Both the International Convention on Civil Liability for Oil Pollution Damage and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage provide comprehensive solutions to the issues associated with the fallout of maritime oil pollution damage. However, while these Conventions have been ratified by Trinidad and Tobago and are even mentioned in our National Oil Spill Contingency Plan, they have not been incorporated into domestic law. This means the Conventions cannot be enforced against another party in the local courts.
With the current oil boom in neighbouring Guyana, we are likely to see an increase in the number of vessels bearing oil in cargo navigating our waters and as such, there is a greater threat of oil pollution damage. The incorporation of these Conventions into the existing legislation or as totally new law is a feasible starting point to counteract such threats. Alternatively, the Conventions can be used as a guide, borrowing some of their principles as the foundation for new legislation which addresses all relevant areas of maritime oil pollution in a way that also encapsulates the idiosyncrasies of our territory such as its borders and ecosystem and the Caribbean region as a whole. In particular, any such legislation should seek to strengthen international and inter-regional cooperation in monitoring vessels that traverse Caribbean waters, increase fines and penalties for vessels causing oil pollution damage and implement robust policies to address compensation for persons or entities affected by oil pollution damage. Either way this is done, it should ensure that our laws are consistent with the modern international Conventions so they can be enforced in the local courts and provide both the State and citizens with clear recourse in the event of another maritime oil pollution disaster.
