CMI Newsletter n° 1 - Comite Maritime International

CMI News 2012-1_1 2012 18/06/12 16.22 Pagina 11“Hibei Spirit”This very large claim in Korea moves steadily towardsfinal settlement, despite the total number ofindividual claims exceeding 28,850.Close cooperation between the Fund, the Skuld Pand I Club and the Government of Korea has madethis possible. The level of payments by the Fundremains at 35% of assessed clam amounts, with theGovernment of Korea settling the balance under theprovisions of a special law.A new development has been the implementation ofa new technique for settling small non-fishery claimswhere the claimant has not been in a position toproduce documentary proof of loss. This technique isstill in the trial stage, but has enabled a further 584claimants to receive compensation.The recourse action brought against Samsung in thePeoples Republic of China has now been concluded,with a recovery of US$ 10 million shared between theClub and the Fund.Claims in NigeriaTwo incidents were reported to the meeting involvingpollution incidents in Nigeria, but in both cases thefacts remain very uncertain. Both incidents happenedin 2009, and the possibility remains that they may betime barred under Article 6 of the 1992 FundConvention.However a substantial delegation from Nigeriaparticipated in the discussions, and it is hoped thatthis may enable these cases to be settled.Working Group on Interim Payments to PollutionVictimsThis topic has proved a difficult one to resolve. Therecan be no doubt that the object of the CLC and Fundsystem is to ensure that victims of oil pollution fromtankers receive prompt payment of compensation.However the very structure of the system, based onlimited liability of the ship owner and Fundrespectively, means that when the total of theapproved claims exceeds the total of the ship owner’sCLC limit and the maximum available from theIOPC Fund, the calculation of the proportion of eachclaim which can be paid can only be made when allclaims are known and assessed. That in turn rendersthe making of interim payments before that timemathematically impossible.Hitherto the problem has been solved in the smallnumber of cases in which it arose by arranging for theship owner and his P and I Club to pay the fullamount of the assessed proportion of each claim,until the full amount of the ship’s CLC limit ofliability has been reached. The Fund then takes overand continues settlement of both the ship owner’sproportion and the Funds proportion of each claimat the level of payment fixed jointly by the Fund. Eachpayment, whether by the Club or the Fund, isspecifically approved by both of them, and at the endof the case a reconciliation is carried out and abalancing payment made to ensure that each pays theappropriate amount according to the Conventions.However this solution has not proved possible toapply in cases where the ship owner has been obligedto pay his limitation find into court.If that happens, as in the case of the “Prestige”, theFund has paid its proportion to each clamant (theFund Convention does not require the Fund toconstitute a limitation fund in court) leaving thevictims to wait for the Court-appointed administratorto distribute the funds in court. In no case has thatresulted in a payment which could be considered“prompt”.In an attempt to resolve this dilemma the In -ternational Group of P and I Clubs and the 1992Fund Secretariat commissioned a study of theproblem by Mr Mans Jacobsson, formerly Director ofthe Fund, and Mr Richard Shaw, the CMI observerdelegate. Their report was tabled at a session of theworking group considering this topic under theChairmanship of Mr Volker Schofisch of Germany,and is available on the Funds website as documentIOPC/APR12/10/1.It is evident that no solution of this problem ispossible without amendment of both the CLC andFund Conventions, unless the Funds and the Inter -national Group can reach agreement on aMem orandum of Understanding recording theexisting practice.An Assembly Resolution formally approving the termsof the MOU may assist in persuading a judge chargedwith administering a CLC Limitation Fund to takedue note of the practice, and to give effect to it in thedistribution of the Limitation Fund.The Study revealed a paragraph, of which manydelegates were unaware, in Article 18.7 of the 1971and 1992 Fund Conventions, with refers to the needfor interim compensation payments (there referred toas “provisional payments”) to be paid “as promptlyas possible”.This paragraph clearly gives express authority underthe Conventions for the making of prompt interimpayments, and thus to the constructive interpretationof the convention provisions in a way which enablesthis to be achieved.Further negotiations continue between the Funds andthe International Group on the wording of anappropriate Memorandum of Understanding, and it isto be hoped that agreement on this will be achievedbefore the next meeting of the Working Group.11