Prof Moses Amweelo
The direct results of the Torrey Canyon disaster (United Kingdom 1967) – and subsequent debate around it at the Intergovernmental Maritime Consultative Organisation (IMCO) and within the shipping and oil industries – were two new international conventions and one private international agreement.
In 1969 IMCO completed the International Convention on Civil Liability for Oil Pollution Damage (CLC Convention), which changed the traditional damage liability base from one of proven fault or negligence, to one of strict liability. More specifically, it effectively doubled shipowner’s liability limits from those set out in the Convention on Limitation of Liability of Owners of Seagoing Vessels of 1957.
Finally, the CLC Convention introduced a system of certification, making pollution damage insurance basically compulsory and giving a right of direct action against the insurer if the shipowner did not pay.
Also in 1969, the IMCO completed the international convention relating to intervention on the high seas in cases of oil pollution casualties, (the Intervention Convention), allowing coastal states to take early action on the high seas against vessels which pose a threat to their coastlines.
The fact that coastal states are given the right to take action outside their own area of maritime jurisdictions indicates how seriously the threat of large-scale ship-source marine pollution was taken in the post-Torrey Canyon period. It shows how a single act of navigational negligence can change maritime history!
Namibia faced a similar situation in 1996 when bulk carrier Irine P suffered structural damage and spilled about 72 tonnes in our waters. The government spent more than N$1 million on the clean-up but only recovered three-quarters of that from the vessel owner.
Oil spills in the open ocean are believed to have minimal environmental consequences, however when close to the coast these can be severe.
With a substantial volume of ships moving through Southern African territory, as well as oil and gas exploration production and transportation, the Global International Waters Assessment regarded oil spills to be the most important issues related to marine pollution in the region.
These have potential environmental, economic, health and social impacts of pollution to the region at a category classified as “severe”.
Costal spills of crude oil and heavy fuel oil are very difficult to clean up and may last for years in the sediment and marine environment.
Having realised potential risks for oil spill in Namibia, the National Assembly has approved several International Maritime Organisation (IMO) conventions related to the prevention and combating of oil spills in the Namibian waters.
These are: The International Convention on Prevention of the Marine Pollution From Ships ( MARPOL73/78), International Convention on Intervention for Oil Pollution on the High Seas (1969), International Convention on the Establishment of International Fund for Compensation for Oil Pollution Damage (1992), International Convention on Civil Liability for Oil Pollution Damage (CLC of 1992), The International Convention on Search and Rescue (SAR 79), and International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC 1990).
All these are designed to strengthen the strict application of existing international instruments.
During the IMCO debates leading to the CLC and Intervention Conventions it became clear to the oil and tanker industries, that whilst both conventions would take a number of years to enter into force, public pressure could lead coastal states to take unilateral action, unless an alternative interim compensatory regime was quickly available.
This resulted in 1969 in the Tanker Owners’ Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP). This agreement was designed originally to encourage tanker owners to clean up spills, regardless of fault, with the assurance of recovering their costs from their Protection and Indemnity (P&I) club.
In addition, the scheme also had funds to compensate governments for their own clean-up costs. The fact that TOVALOP was a voluntary scheme, brought forward fairly rapidly by the industry itself, illustrate the very high visibility which environmental questions were enjoying in the public eye at that time.
The “environmental decade” had truly commenced and the many new anti-pollution initiatives, which were about to emerge nationally, regionally and internationally, illustrate the intense pressure which shipping would face during this period.
Naturally, there was considerable resistance to this unwelcome attention by all sectors of the shipping industry. It was felt, quite rightly, that shipping was being singled out as a villain in the environmental battle when, in actual fact, at that time, shipping contributed only about 10 percent of the pollutants entering the sea. On the other hand, there was a general lack of coordination in the industries between its cargo, vessel and underwriting sector about the problem.
The shipping sector fought anti-pollution innovation in any form vigorously to the extent that shipping was quickly considered to be intransigent and inflexible. Cargo interests, however, stated that it was all an operational problem and thus completely within the control of the carrier despite the fact that the pollutant cargo actually caused the pollution.
This problem has persisted to this day. The major international oil companies introduced a new scheme entitled, Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL), which commenced 1971, and extended the oil pollution liability ceiling considerably.
In retrospect, it is interesting to note that CRISTAL was also an important precedent illustrating that the international oil industry, fully aware of the concerted environmental pressures, could and would take some responsibility for pollution claims. Increasing tanker accidents, invariably due to human error/negligence, did not compare well with the oil industry which had a much better safety/pollution record in both its onshore and offshore operations.
Furthermore, we need as a country to support the establishment of a School of Marine Systems Engineering at the University of Namibia in order to facilitate more training and exercises annually for the coming years, so that we can achieve our objectives as outlined in the National Oil Spill Contingency Plan (NOSCP) and Harambee Prosperity Plan II (HPP II).
Professor Moses Amweelo has served as Minister of Works, Transport and Communication in the Republic of Namibia