Page 110 - claims information pack ebook_e

Guidelines for presenting claims for clean up and preventive measures

When does the 1992 Fund come into play? 1.9 Whether the compensation comes from
the shipowner’s insurer or the 1992 Fund,
1.6 Whether or not the tanker was the cause
of the incident, under the ‘no fault’ the process of making the claim and the
provisions of the 1992 CLC the owner of criteria applied when assessing the claim
the tanker from which the oil was spilled is are the same. The 1992 Fund and insurer
responsible for paying compensation for usually work closely together, particularly
the damage caused, usually through his on large oil spills. The Fund, in cooperation
insurer, typically a P&I Club. However, the with the insurer, usually appoints experts to
1992 CLC also allows the tanker owner to observe, follow and record the impact and
limit the maximum amount that has to be progress of the clean-up operations. Experts
paid (according to the size of the tanker). will also be used to review and investigate
Once this amount has been paid, the 1992 the technical merits of claims and to assist
Fund is responsible for any extra payments. with determining independent assessments
of the losses. Although the 1992 Fund and
Often the owner’s insurance is enough to
cover all the costs and the money from the the insurer rely on experts to assist in the
assessment of claims, the decision as to
1992 Fund is not needed. However, in a very
large spill, it is possible that not even the whether to approve a particular claim and the
compensation amount assessed rests with
money available from the 1992 Fund to pay the insurer concerned and the 1992 Fund.
compensation for that particular spill will
be enough to cover all valid compensation Why are the costs of preventive measures 5
claims. Although this happens only rarely, in compensated?
such cases each successful claimant will be 1.10 The two Conventions which govern the
paid a proportion of his/her assessed claim payment of compensation for pollution
until all the money available from the 1992 damage rely on a common definition of
Fund is allocated. However, if the damage preventive measures, namely:
occurs in a State which is a Member of the
’
Supplementary Fund additional monies will “Preventive measures” means any reasonable
be available from the Supplementary Fund. measures taken by any person after an incident
has occurred to prevent or minimize pollution
1.7 If the incident which caused the pollution damage. ’
was a natural disaster, or if it was entirely
caused intentionally by somebody (not the The interpretation of this definition agreed
tanker owner) or by faulty lights or navigation by the 1992 Fund Assembly is set out in
aids which should have been maintained by the Claims Manual which is intended to
the authorities, then the tanker owner is not assist in the uniform interpretation of the
responsible and the 1992 Fund will come Conventions across all Member States. The
into play immediately. Also, if the tanker Claims Manual makes it clear that the use
owner is not known or cannot meet his of the word ‘reasonable’ applies both to the
liability, the 1992 Fund will step in and pay measures themselves and the costs of those
compensation. measures. In addition to providing guidance
1.8 The 1992 Fund will not pay compensation if on the formulation of claims for preventive
the pollution was caused by an act of war or measures, these Guidelines are intended to
hostilities or if the spill was from a warship. demonstrate through illustrative examples
Nor will the Fund pay if it cannot be proved and explanations how the 1992 Fund has
that the damage was caused by a spill of implemented this interpretation and, in
persistent oil from a tanker. The 1992 Fund particular, how the test of reasonableness
cannot pay compensation for damage that is applied in the assessment of claims.
occurred on the high seas, or outside of
the territorial waters or exclusive economic
zone of its Member States (except under the
circumstances described in paragraph 2.1).