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"IKAN TANDA" A WAKE-UP CALL FOR SA GOVERNMENT
This is a re-print of an
article published in the Cape Times
(Friday September 21, 2001)
During this month’s [Sept 2001] once in 50-year storm, the Cape added yet another sacrifice to its tally of shipwrecks; the Singapore-registered Ikan Tanda lies high and dry on the rocks at Scarborough.
Though reports indicate that most of its 230 tons of fuel are now safely ashore, only the refloating of the vessel will avoid at least localised pollution.
If the ship defies salvage attempts, she either breaks up over an extended period or is laboriously cut up and taken away in a wreck removal exercise.
Our law (and hopefully our local expertise) can cope with issues of wreck removal. But what South African shipping law is still singularly unprepared to cope with are the legal consequences of a tanker catastrophe.
It is our good fortune that it was not a tanker that suffered an engine breakdown in the face of 17-metre swells and a gale.
South Africans hit by oil pollution losses would have been seriously short-changed largely because the Department of Transport has dragged its heels in adopting current international measures of compensation. Our problem lies in the international regimen for the compensation of damages flowing from marine oil pollution.
International maritime law allows shipowners to limit their liability for all types of claims arising from the operation of ships.
Shipping’s first oil pollution wake-up call occurred with the loss of the tanker Torrey Canyon off the British coast in 1967. The law was an unprepared as the coastal authorities were to deal with the escaping of 80 000 tons of crude.
International agreement was quick. In 1969, the Civil Liability Convention (CLC) set the parameters for the paying of the bills.
A shipowner, whether at fault or not, would be liable for oil pollution damage up to a factor of the ship’s tonnage, with a ceiling. At current rates, this equates to just under R120 million.
But the loss of other tankers since the Torrey Canyon made shipping legislators realise that this was hopelessly inadequate. Some 87 000 tons of crude oil from the Exxon Valdez, for instance, gave rise to claims quantified by the US courts at over $5 billion.
Closer to home, the Castillo de Bellver, which caught fire 12 miles west of Saldanha Bay, took 276 000 tons of oil into the ocean with her. Miraculously none of it came ashore.
And the clean-up cost of the sinking of the Treasure in Table Bay last year, with 13 000 tons of bunker fuel, exceeded R45 million.
Imagine, for an awful second, the scenario of a perfectly ordinary-sized tanker with 300 000 tons of crude oil on board lying on the rocks where the Ikan Tanda now rests.
Who would pay the bills?
The shipowners would rely on our Marine Pollution (Control & Civil Liability) Act which basically still has the 1969 limits in place.
All they would have to pay would be R120 million, and this would be met by the insurers.
The balance of the costs of whatever kind – clean up, pollution prevention measures, bird rescue costs, and economic damages - would have to lie where they fell.
The result? South African claimants would have to bear their own losses beyond the comparatively paltry R120-m ceiling.
As long ago as 1971, the international community realised that the CLC not only provided too little cover to deal with major spills, but it also looked only to the shipower for compensation.
A compromise was reached between shipowners and the oil companies which involved the oil giants bearing a substantial share of oil pollution costs not met under the CLC, and funded by contributions from the oil companies which involved the oil giants bearing a substantial share of oil pollution costs not met under the CLC, and funded by contributions from the oil companies.
The limits of the Fund Convention were set significantly higher than those of the CLC. Contributions to the fund depend on the volumes of oil carried to and from member countries.
This was the rub for the old South Africa. To join the Fund Convention, a state has to disclose its annual oil import volumes, which a pre-1994 South Africa was obviously unwilling to do. But in 1995 the new government set up a Maritime Transport Policy working group to advise on the formulation of policy.
One of its recommendations was that South Africa should immediately accede to the Fund Convention to bring oil pollution limits closer to reality.
The call to accede to the Fund Convention has since been made repeatedly to both the Department of Transport and to the Maritime Safety Authority (Samsa). At one stage approval in fact passed through the committee stage of both houses only to have the paperwork disappear.
Samsa continues to drive the process, but it needs urgent support for the accession formalities on the part of the government. We cannot afford another bureaucratic bungle.
By South Africa acceding to the Fund Convention (now known with the CLC as the 1992 Liability Convention) there would be a potential claim for a tanker casualty of up to R1.7 billion. These limits will be increased from November 2003 to R2.56 billion.
How will the government explain to those who have suffered catastrophic oil pollution losses that they have little or no claim against a sunken or stranded tanker’s owners for losses because South Africa has not bothered to accede to the Fund Convention?
The Department of Transport must submit all the required accession papers before the end of this year. And then it should pray that the next casualty doesn’t happen during 2002.
September 21, 2001Posted to website: 30 May 2002
