Marine pollution damage in Australia: implementing the Bunker Oil Convention 2001 and the Supplementary Fund Protocol 2003

Abstract

The grounding of the bulk carrier Pasha Bulker on Nobbys beach, Newcastle in June 2007 has again highlighted the risk from shipping posed to Australia’s extensive and environmentally fragile coastline. Whilst a pollution incident was averted in this case, spills from shipping in other states (such as the Nakhodka spill off Japan in 1997, the Prestige spill off France in 1999, the Erika spill off Spain in 2003 and the Hebei Spirit spill of South Korea in 2007), have required the constant monitoring and updating of the international regulatory regimes designed to prevent such incidents occurring and to provide compensation when they nevertheless do occur. Two recent additions to this international regulatory system are the Protocol on the Establishment of a Supplementary Fund for Oil Pollution Damage 2003, (the “Supplementary Fund Protocol 2003”) and the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (“the Bunker Oil Convention 2001”). In 2008, Australia gave effect to these instruments, enacting the Supplementary Fund Protocol via the Protection of the Sea Legislation Amendment Act 2008 (Cth), while the Bunker Oil Convention is given effect through the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth), and the Protection of the Sea (Civil Liability For Bunker Oil Pollution Damage) (Consequential Amendments) Act 2008 (Cth). The purpose of this article is to analyse these international instruments, describe how they came about, and explain the Australian implementation of them. In particular, consideration is given to the question of limitation of liability, especially the relationship between bunker pollution claims and the Convention on Limitation of Liability for Maritime Claims (LLMC) 1976, as amended in 1996.

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