THE PLATE PRINCESS INCIDENT

Transcription

1 Agenda Item 4 IOPC/OCT18/4/4 Date 8 October 2018 Original English 1992 Fund Assembly 92A Fund Executive Committee 92EC71 Supplementary Fund Assembly SA15 THE PLATE PRINCESS INCIDENT Note by the IMO Secretariat Summary: Action to be taken: Information is provided in respect of recent communications to the International Maritime Organisation (IMO) relating to this incident Fund Assembly Information to be noted. 1 Recent developments 1.1 On 4 September 2018, the Secretary-General of the International Maritime Organisation (IMO) received a letter, dated 30 July 2018, signed by the Vice Chairman and Secretary of the Energy and Petroleum Permanent Commission of the Asamblea Nacional de Venezuela. The letter provided both English language and Spanish language versions, which differ slightly in their content. The letter is attached as Annex I. 1.2 The letter in Annex I requested a response by . On 18 September 2018, the IMO Director of the Legal Affairs and External Relations Division provided a response, contained in Annex II. On the same day, Her Excellency Mrs Rocio Maniero, Ambassador Extraordinary and Plenipotentiary and Permanent Representative of the Bolivarian Republic of Venezuela to IMO was informed of the letter from the Asamblea Nacional and IMO s response. That communication is contained in Annex III. 1.3 Subsequently, on 27 September 2018 the Secretary-General of IMO received an additional letter from the Vice Chairman of the Energy and Petroleum Permanent Commission of the Asamblea Nacional, in response to the sent by of the Director of Legal Affairs and External Relations Division at IMO. That letter has been translated by the IOPC Funds and is attached as Annex IV. 2 Action to be taken 1992 Fund Assembly The 1992 Fund Assembly is invited to take note of the information contained in this document and comment as appropriate. * * *

2 ANNEX I IOPC/OCT18/4/4, Annex I, page 1

3 1 <1> <1> Please note that the underlined section above does not appear in the Spanish language version. IOPC/APR18/4/4, Annex I, page 2

4 IOPC/APR18/4/4, Annex I, page 3

5 IOPC/APR18/4/4, Annex I, page 4

6 IOPC/APR18/4/4, Annex I, page 5

7 * * * IOPC/APR18/4/4, Annex I, page 6

8 ANNEX II * * * IOPC/OCT18/4/4, Annex II

9 ANNEX III * * * IOPC/OCT18/4/4, Annex III

10 ANNEX IV ORIGINAL: Spanish República Bolivariana de Venezuela Asamblea Nacional Comisión Permanente de Energía Y Petróleo Caracas, 27 September 2018 His Excellency Kitack Lim Secretary General of the International Maritime Organization (IMO) 4 Albert Embankment London, SEI 7SR, United Kingdom Dear Sir, Please accept the warm good wishes of the Permanent Energy and Petroleum Commission of the National Assembly of the Bolivarian Republic of Venezuela. Further to the response dated 18 September 2018, sent on your behalf by Mr. Frederick Kenney, who identifies himself as Director, Legal and External Affairs of the IMO, we have to advise you that we deeply regret that you have been unable to reply to our request for an audience with you, which we sent on 17 August 2018, again on 24 August 2018 and finally on 3 September this year. Nevertheless, we repeat our request for an audience during the week beginning 29 October 2018, in view of our intention also to attend the Assembly of the International Oil Pollution Compensation Funds, due to be held during that same week. Please indicate the day and time when we will be received. That said, and in response to your mentioned above, we take the liberty of making the following remarks on your arguments: The Republic of Venezuela signed without reservation the International Convention on Civil Liability for Oil Pollution Damage at sea, adopted in Brussels on 29 November 1969, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted in Brussels on 18 December On 21 January 1991, Venezuela adopted as a State Party the 1976 Protocols which amended both Conventions. Like Venezuela, States such as Mexico, France, Oman, the United Kingdom, amongst others, as Parties, deposited with the General Secretariat of the IMO instruments relevant to the 1976 Protocols which amended the above-mentioned Conventions. The 1992 Protocols, which amended the International Convention on Civil Liability for Oil Pollution Damage at sea, 1969, and the International Convention for the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, expressly provided that, as regards the Parties to the 1976 Protocols, the Conventions should be read in the form as amended by the said Protocols. As the Secretariat knows, States Parties had adopted the 1976 Protocols, having first adopted the Protocols that kept the same provisions as the 1992 Protocols, which is why the 1976 Protocol was amended by those other Protocols. The Republic of Venezuela sent a representative with plenipotentiary powers to the Conference that adopted the 1992 Protocols amending the 1969 Civil Liability Convention and the 1971 Fund Convention, and he unreservedly approved the 1992 Protocols on 27 November The resolutions adopted at the 1992 Conference led to a commitment in accordance with which the Secretariat of the IMO would set an appropriate date for Venezuela to withdraw from the old Conventions, without needing IOPC/OCT18/4/4, Annex IV, page 1

11 to take any other measures, in order to avoid a situation in which two incompatible compensation systems could be in force at the same time. The Republic of Venezuela complied fully with the instructions given by the Secretariat of the IMO, in due course, thus demonstrating its intention to be a Party to the new Conventions, which would establish a new, modern compensation regime. The Protocols are clear: only the States that signed between 15 January 1993 and 14 January 1994 had to ratify, accept or approve the Protocols, as well as those States which did not sign by the latter date but wanted to adhere to the Protocols anyway. State Parties such as Venezuela, and those States which had deposited an instrument of ratification, approval, acceptance or accession, were obliged to denounce the old Conventions. Venezuela never deposited a formal instrument of accession to the IMO in respect of the 1992 Protocols, since the Conventions require that any deposit of an instrument of this kind must be made in due, proper form; as the Secretariat has stated, through s sent since 2011, there is no formal document in which the exact date of deposit of such instrument is shown. It was not necessary for Venezuela to deposit an instrument relevant to the 1992 Protocols, because Venezuela had signed them without reservation on 27 November It is also important to stress that, on 17 June 1997, while the 1992 Fund Convention was in force, the Fund Assembly authorised the International Oil Pollution Compensation Fund to assume responsibility for the part of the overall limit of the shipowner s liability, as provided in the 1969 Civil Liability Convention in respect of a ship registered in a Contracting State which has caused damage in the territorial sea of a State Party. Everyone knows that the ruling presented to the Assembly of the International Funds was delivered against the 1992 Fund, as the latter had given a financial guarantee in favour of the shipowner, under Article VII of the 1992 Civil Liability Convention, committing itself to fulfilling the obligations imposed by the Convention on the owner of the Plate Princess, in respect of pollution damage caused, all this on the basis that, among the Parties to the 1992 Protocol (which amended the 1971 Fund Convention), the 1969 and 1992 Civil Liability Conventions would be read as a single document. In this connection, the owner of the Plate Princess submitted, under Article V of the Civil Liability Convention, a bank guarantee to limit its liability; this guarantee must not be confused with the guarantee issued by the Fund under Article VII of the Civil Liability Convention of 1969 As you are aware, in March 2015 the English Court issued an enforcement order against the International Oil Pollution Compensation Fund, as well as an embargo order against that international body, based on the 1992 Civil Liability Convention. The Director of the International Funds was notified of this ruling in March 2014, i.e. long before the liquidation of the 1971 Fund had begun. The Venezuelan ruling on which the English Court issued the enforcement order in 2015, would have been submitted at the same time, by the Fund Director, Dr. José Maura Barandiarán, when taking extraordinary recourse action in the Venezuelan Courts, the intention being for these courts to rule on the liability of the 1992 Fund in the Plate Princess incident, relying on the temporary provisions which authorised the establishment of a provisional Fund to cover obligations stemming from incidents occurring in the transitional period between the old regime (based on the 1969 Civil Liability Convention and the 1971 Fund Convention), and the new regime (based on the 1992 Civil Liability Convention and the 1992 Fund Convention). At the same time as the foregoing events, the Fund Director also requested the English Courts to revoke the enforcement order granted in March On the basis of the petition by the Fund, the English Courts, contrary to the provisions of International Law, looked into the merits of the ruling by the Venezuelan Courts in a pollution incident which occurred in internal Venezuelan waters, and went on to declare that the order IOPC/APR18/4/4, Annex IV, page 2

12 had been made against the 1971 Fund, and, since that Fund no longer existed, the order did not apply to the 1992 Fund. As you mention in your letter, Member States of the 1992 Fund, in particular Venezuela, the United Kingdom, France, Malta, and others, asked the Fund Assembly held in October 2014, not to liquidate the 1971 Fund, until the latter had finalised all outstanding compensation payments in respect of pollution incidents that had occurred during the life of the 1971 Fund. The UK delegation asked for a roll-call vote to be taken on the request, which is why the voting register is included in the Record of Decisions of the said Assembly. In the case of a dispute, the Assembly s decision would have no effect in any matter prejudicial to victims in cases awaiting compensation in the Member States. The report also refers to the notification made through diplomatic channels by the delegate of Venezuela during the Assembly held in May 2014, on the enforcement action submitted to the Courts of England and Wales by the Puerto Miranda Union, Zulia State, against the International Oil Pollution Compensation Fund, and which ordered the Fund to pay compensation to the said Union for pollution damage caused by the Plate Princess incident. The delegation of Venezuela clearly stated its opposition to the closure of the 1971 Fund, until such time as no litigation was pending before the English Courts in respect of the Plate Princess and Nissos Amorgos incidents, which were linked to the 1971 Fund, and which were reasons to delay the winding-up of the latter, until a final solution under the provisions of that Convention could be reached. The Assembly proposed that a meeting be held between the 1992 Fund and the International Union of Marine Insurance (IUMI), as well as any other interested party. No meeting would have involved representatives of the Fishermen s Union, Miranda District, or their legal representatives, or have any legal effect whatsoever on them, as these people were direct victims, to whom the ruling had ordered payment of compensation under the Civil Liability and on Fund Conventions Venezuela s Supreme Court of Justice, which has exclusive jurisdiction in the Plate Princess incident, in its ruling of 17 February 2017, responding to requests from the International Convention on Civil Liability for Oil Pollution Damage,1992, repeated the Fund s liability to pay compensation to the victims of the Plate Princess incident. The ship was registered in Malta. The 1992 Fund was notified of the ruling through the English Courts. The 1992 Fund requested the English Court, in writing, to withdraw the enforcement order against the 1992 Fund based on English domestic law. The English Court, despite the fact that the UK was the host country of both the Civil Liability and the Fund Conventions, refused the Venezuelan fishermen the enforcement of the ruling against the 1992 Fund, ignoring the supremacy of Conventions under International Law. However, the Court, as the body ensuring compliance with the Conventions ought to have known that the Fund was sued jointly with the owner of the Plate Princess, under Article IX of the 1969 Civil Liability Convention because it had guaranteed the owner s obligations, as set out in Document 71FUND/EXC.54/10 dated 17 June The guarantee, offered by the International Oil Pollution Compensation Fund, was granted after demands by the delegation of Venezuela at the 1997 Assembly of the Funds, because the security offered to the Venezuelan Courts by the insurers of ships involved in pollution events in Venezuela between February and May 1997 was insufficient. During the Fund Assembly, referred to in the document above, the Venezuelan delegate submitted, through diplomatic channels, the claims for compensation to the victims, as shown in paragraph of the document referred to. The guarantee certificate was dispatched to the Plate Princess by the International Fund, at IMO Headquarters, in the presence of UN representatives, as described in document 71FUND/EXC.54/10, at page 17, in the paragraph entitled Adoption of the Minutes of decisions. IOPC/APR18/4/4, Annex IV, page 3

13 Accordingly, if one takes the position that the incident involves only the 1971 Fund, because the 1971 Fund Convention expressly provided that the Fund would not lose its legal persona until all pending claims had been paid and, since the 1971 Fund had been notified of the ruling by the English Courts on 13 March 2014, the dissolution of that international body should have been delayed. Despite the foregoing, the ruling issued by the Venezuelan Courts, which had exclusive jurisdiction to take a decision on the Plate Princess incident, CONDEMNS the 1992 Fund, because of the obligations it assumed on behalf of the shipowner, in accordance with the provisions of the 1992 Civil Liability Convention which is still in force for Venezuela. Furthermore, it cannot be alleged that the General Secretariat of the IMO was unaware of the claim in respect of the Plate Princess incident, since the previous Secretary General, together with Dr. Rosalie Balkin, the body s legal consultant, were working with the victims in 2012, and committed themselves to seeking a solution to satisfy their demands for compensation for the damage they had suffered due to pollution. Having nothing more to clarify at the moment, I repeat our readiness to continue meetings with a view to finding satisfactory ways out for the victims of the Plate Princess incident, confirm my sentiments of deep respect, Kind regards, Elias Matta Wehbe Vice Chairman IOPC/APR18/4/4, Annex IV, page 4