PERCEPCIONES QUE LA POBLACIÓN ESTUDIANTIL VÍCTIMA DE

Art. II of CLC 1969 provides " this Convention shall apply exclusively to pollution damage caused on the territory including the territorial sea of a Contracting State and to preventive measures taken to prevent or minimize such damage." In CLC 1992, the geographical scope of the convention extends to EEC. In the HNS Convention, there is an exactly same provision as CLC 1992. It means CLC apply only to pollution damage defined in art. I (6). The losses of the ship and cargo and other losses which are not included in that definition will not be applied to by CLC. Such loss or damage, in respect of limitation of liability, will fall within the scope of the global regime. The application of CLC is also restricted to the geographical scope of it.

Besides the above restriction, the application of CLC 1969 is constrained by the definition of pollution damage, oil and ship in art. I. In art. I (6), "pollution damage" is defined as

loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures.

There are, therefore, three separate elements to the definition: (1) loss or damage by contamination, (2) costs of preventive measures and (3) further loss or damage caused by preventive measures.47

However except the costs of preventive measure or the further loss by it, other pollution damage has been confined by the reference of contamination. It is clear that damage caused by the oil subsequently igniting, or exploding is not caused by contamination, and so is excluded from the convention. This kind of damage will therefore be recoverable only under the lex fori. It is the same in CLC 1992. To the preventive measure, according to the definition in art. I (7), it should only be taken "after an incident has occurred". Hence it does not apply to measures taken for the threat of pollution. The "Ship" in this convention is defined as " any sea-going vessel and any seaborne craft of any type whatsoever, actually carrying oil in bulk as cargo" (art. I (1)). This includes combination carriers laden with bulk oil cargo, but excludes them when they are carrying oil only in the form of slops. Thus, where a combination ship has changed from an oil cargo to a dry cargo and has retained oil residues on board in a slop tank, any subsequent escape of oil from the slop tank or bunker tanks would not be covered48. The "oil" means "any persistent oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil, whether carried on board a ship as cargo or in the bunkers of such a ship" (art. I (5)). Because of the wording of "whether carried on board a ship as cargo or in the bunkers of such a ship", it is not clear whether slop and bilge oils are included. If it is interpreted narrowly, this kind of oil will be excluded from CLC 196949.

CLC 1992 amplifies the definition of "pollution damage" contained in CLC 1969. While the basis of the definition remains the same, specific reference is now made to "environmental damage". However, CLC 1992 also expend its application by amplifying the definition of "ship" which now means –

47 _{Abecassis, D. W. “ the Law and practice relating to Oil Pollution from Ship” (London:}

Butterworths, 1978) 184.

48 _{Ibid at pp.173, 174.} 49 _{Ibid at pp.175, 176.}

any sea-going vessel and seaborne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that is has no residues of such carriage of oil in bulk aboard.

It is clear that oil tankers no matter whether they are laden or in ballast are covered under this Convention. The slop and bilge oils contained in combination ships following the voyage carrying oil as cargo will also be included in this Convention. It is also noted that CLC 1992 also amplify the definition of "incident" to include the “occurrence or series of occurrence which creates a grave and imminent threat of causing such damage." Hence the preventive measures in CLC 1992 applies to measures taken for the threat of pollution. The definition of "pollution damage" in HNS Convention is similar to that in CLC 1992, but it restricts this definition by a reference to "contamination" only in the case of loss or damage to the environment. This means that except for loss or damage to the environment, damage is not linked to contamination. As a result, it is possible that where non- environmental damage is caused by igniting or explosion as a result of the escape or discharge of hazardous and noxious substance, the HNS Convention will provide the remedy to the victims50.

Because of the restriction of application of these Conventions, in case of a collision accident where there are losses and damage to hull of the ship and cargoes and also pollution damage, several conventions may apply to the claims arising out of this accident simultaneously. Each of them will apply to certain types of damage. Although there are superseding provisions and exclusion provisions in these conventions to keep them mutually exclusive, as will see in the following discussion, gaps between these conventions do exist.

50 _{Gauci, G., “The International Framework for Remedies for Oil Pollution” unpublished lecture}

3.3.3 Application of the Global Regime and the Separate Regime to Pollution