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07 October 2020
Discussions have recently arisen among academics and professionals as to whether Colombia's pollution protection regime for ships carrying crude oil as cargo or bunkers is satisfactory. Serious polluting events such as the one which occurred off the coast of Brazil in 2019 and the one which recently took place near the island of Mauritius(1) have placed this debate at the centre of the maritime community's radar both locally and internationally.
The spill that occurred off the coast of Brazil in 2019 is considered one of the most serious in the country's history. While the cause of the damage is still under investigation, local authorities have blamed a foreign tanker for spilling(2) approximately 2,500 tons of oil(3) into the ocean. However, the owner of the accused vessel has denied this claim.(4) In Mauritius, a bulk carrier apparently ran aground in a natural reef, spilling approximately 1,000 tons of fuel oil (bunkers) and presumably affecting the region's precious natural ecosystems.(5)
These events have led to a rethink of whether the regimes in place to deal with such situations are sufficient.
Colombia has ratified the Civil Liability Convention 1992 and the International Oil Pollution Compensation Fund 1992. Thus, Colombia has a two-layer protection framework covering incidents up to approximately 89.77 million special drawing rights (SDRs) ($124.4 million) under the Civil Liability Convention and 203 million SDRs ($280.7 million) under the International Oil Pollution Compensation Fund.(6) However, the country has not ratified the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention).
Recent events such as those off the coast of Brazil and Mauritius have given rise to the tricky question of whether the protection available in Colombia is sufficient. What would be the effect of accidents involving larger modern vessels (which carry more oil than 20 or 50 years ago)? What about pollution caused by accidents involving ships which are not transporting crude oil as cargo (eg, bulk carriers)? The risk for Colombia is likely to be even greater now due to the enlargement of the Panama Canal, which has allowed larger vessels to navigate close to the Colombian coast.
Thus, now seems like a good time to reopen the debate on whether ratifying the Supplementary Fund Protocol and other international instruments (eg, the Bunkers Convention) could help Colombia to protect itself adequately against this type of incident. For instance, the Supplementary Fund offers a separate layer of compensation of up to 750 million SDRs(7) ($1.04 billion) for pollution caused by ships carrying persistent hydrocarbons.
The costs of the 2019 spill off the Brazilian coast have yet to be determined, but look set to run into the billions according to media reports.(8) The figures for the Mauritius event still need to be calculated. In the meantime, it seems logical to analyse what steps Colombia should take at the domestic level to mitigate the potential risks in this respect.
For further information on this topic please contact Javier Franco at Franco & Abogados Asociados by telephone (+57 1703 5633) or email (email@example.com). The Franco & Abogados Asociados website can be accessed at www.francoabogados.com.co.
(1) United Nations Conference on Trade and Development (UNCTAD) (2020) "Mauritius oil spill puts spotlight on ship pollution", 19 August 2020.
(2) Costa, C (2019) "A trajetória do navio Bouboulina, suspeito de ser o responsável pelo vazamento de óleo no litoral brasileiro", 29 January 2020, BBC News.
(3) Santos, D (2019) "O que se sabe até agora sobre o derramamento de óleo no Nordeste", 4 February 2020, World Wild Fund.
(4) Maltezou, R and Teixeira, M (2019) "Brazil adds four other tankers as suspects for oil spill", 6 February 2020, Thomson Reuters.
(5) BBC News (2020) "Mauritius oil spill: Wrecked MV Wakashio breaks up", 17 August 2020.
(7) UNCTAD (2012) "Liability and Compensation for Ship-Source Oil Pollution: An Overview of the International Legal Framework for Oil Pollution Damage from Tankers", 17 August 2020.
(8) Gabriel, P (2019) "Less oil hitting Brazil beaches, officials say, with damages in the billions", 1 February 2020, Thomson Reuters Foundation.
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