Page 115 - claims information pack ebook_e

Guidelines for presenting claims for clean up and preventive measures
4.5
Example
A port authority instructs a spill response
contractor, resident in the port with whom it
has good working relations but no contract, to
respond to a spill from a tanker a few miles off
the coast where the tanker has run aground.
It is winter with low water temperatures and
a substantial amount of heavy fuel oil has
been spilled which threatens the port and
surrounding coastline. The contractor is
ordered to apply dispersant onto the oil in an
effort to prevent it reaching the coast but as
a result of onshore winds, the oil soon comes
ashore and has to be cleaned up there.
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On the advice of their experts, the insurer
and the 1992 Fund conclude that this element
of the response was unreasonable. This is
because it should have been foreseen that
under those particular conditions, dispersants
could not have been effective. As there is no
contract with the port authority, the contractor
presents a claim directly to the shipowner’s
insurer and the 1992 Fund but faces the
possibility of having compensation denied even
though the instructions of the port authority
were being followed. Had a contract been in
place, the contractor would have been paid by
the port authority. However, it is unlikely that
a claim submitted by the port authority for
reimbursement of the cost of the contractor
would be successful since the measures
would be judged to have been unreasonable.
The costs incurred and the relationship
between those costs and the benefits derived or
expected, should be proportionate. For example,
a high degree of cleaning, beyond removal of
bulk oil, of exposed rocky shores inaccessible
to the public is rarely justified, since natural
cleaning by wave action is likely to be more
effective. On the other hand, thorough cleaning
may be necessary in the case of a public
amenity beach, particularly immediately prior
to or during the holiday season.
4.6 While it is understood that response
organisations often find themselves compelled
by political pressure and concerns expressed
by the public and the media to adopt measures
which are not technically reasonable, such
actions are unlikely to qualify for compensation.
For example, increasing the size of the
workforce involved in shoreline clean up beyond
the numbers that can be effectively managed
or continuing operations long after they can be
justified on technical grounds, are unlikely to
be considered reasonable. Whenever possible
the 1992 Fund will, at the earliest opportunity
notify the authorities, in writing, that in the
opinion of the 1992 Fund, based on advice of
their experts on site, such a situation has arisen
and that compensation for measures taken
after a certain date may not be available. This
does not mean that authorities must follow
this advice. There is no question that it is for
Member States to conduct the response in any
way they see fit. However, in the light of such
notification, a Member State should be aware
that it might not be possible for the 1992 Fund
to reimburse costs for measures considered to
be unreasonable after a certain date.