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Rares, Justice Steven --- "Ships that changed the law - the Torrey Canyon disaster" (FCA) [2017] FedJSchol 17

aEURoeBP, which had Torrey Canyon on charter but does not own her (and therefore disclaims any responsibility for the oil pollution) has sent all the detergent it can lay its hands on.aEUR

10. As we now know, the excuse that BP was the lessee and not the owner of Deepwater Horizon did not work with President Obama in 2010 and is one demonstration of how Torrey Canyon changed the law^[10].

11. Back to 19 March 1967. The owners of the stricken oil carrier engaged Dutch experts who insisted that she could be salved. The British Undersecretary for Defence (Navy), Maurice Foley MP, was reported initially as saying that there was aEURoeno questionaEUR of deliberately destroying the ship^[11]. However, the clean-up operation ran into problems from the outset. Large swathes of water looked like a bubble bath and the chemicals that produced this aesthetic effect were taking a heavy toll on bird and marine life.

12. Indeed, the use of detergents sent journalists into a metaphor frenzy. A correspondent in The Times wrote: aEURoeA small force of the Royal Navy is already spraying the oil with detergent to neutralise it. The task is like trying to mop the Kensington Round Pond dry with a spongeaEUR^[12], while then 38 year old Dennis Barker, a Guardian reporter, wrote that the effect was aEURoelike trying to pick up quicksilver with boxing glovesaEUR^[13].

13. Another example of how things have changed is that on arriving at the railway platform at Penzance (a ferry port), Barker, who was sent to cover the story, encountered then Prime Minister Harold Wilson on his way to spend his Easter holiday on the Scilly Isles. Barker, in 2010, told his colleague, Barkham, that Wilson aEURoerather liked to be at the scene of the actionaEUR^[14]. By Good Friday, 24 March 1967, the Prime Minister was and the stench from the pollution and clean-up materials had reached LandaEURtms End. Waves of oil reached the shore the next day.

14. On Easter Monday, the ship broke in two and almost all the 120,000 tonne cargo by that time had leaked into the ocean.

15. Meanwhile, as his Prime Minister holidayed, Undersecretary Foley continued to leave responsibility for the salvage with the companies involved, saying that the Government aEURoeclearly aEUR| have no responsibility in law for what has happenedaEUR^[15]. Remember, he had said at the outset that there was no question of deliberately destroying the ship. Well, by Tuesday 28 March 1967 things had changed. On that day, the Royal Navy and Royal Air Force launched a full scale attack on the ship dropping 62,000lbs, or 28 tonnes, of bombs, about a quarter of which missed, and 5,200 gallons or about 23,500 litres of petrol on her^[16]. The armed services also fired 11 rockets at the wreck and dropped large quantities of napalm on her. The BBC reported that^[16]:

aEURoe[d]espite direct hits, and a towering inferno of flames and smoke as the oil slick began to burn, the tanker refused to sink.aEUR

16. To add insult to the British forcesaEURtm injury, the mission that day was called off when particularly high spring tides put out the flames. The Home Office issued a disappointed statement acknowledging this set back, which ended by observing that: aEURoeWe cannot say at this stage what the next step will beaEUR^[18]. However, the BBC reported on 29 March 1967^[19]:

aEURoeIt was decided at first light this morning to carry on bombing. Holiday makers gathered on the cliffs to watch the towering column of flames and smoke which could be seen up to 100 miles away.aEUR

17. Sadly, the British GovernmentaEURtms provision of this spectacle was to little avail. In the end, the spilled unburnt oil created a 270 square mile (or about 700 square kilometres) slick that contaminated 120 miles of the Cornish coast and 50 miles of the coast of Normandy^[20]. At the time, this was the biggest oil spill in history. The clean-up efforts took months and reportedly cost the British and French Governments over USD16 million^[21].

18. It may be a sign of changing times but the Australian Government did not seem to think of using the military in the same way to deal with the recent oil spills from the Montara platform on the Northwest shelf in 2009 or the Shen Neng 1 running aground in 2010 on the Great Barrier Reef.

19. The disaster of Torrey Canyon brought about changes in the law in a variety of ways.

The legal landscape at the time of the Torrey Canyon disaster

20. Affected parties, including the British and French Governments sought to make claims for compensation against those responsible, including Barracuda, the owners of Torrey Canyon. But in the absence of an international compensation regime, they faced a myriad of legal hurdles^[22].

Jurisdiction

21. First, it was necessary to make the claims where a court had jurisdiction to render an enforceable decision. The spill affected both coastal and international waters. It caused damage in several countries and originated from a vessel with multinational connections. The British Government issued a writ for damages on 4 May 1967 in the Admiralty Court in London that named Torrey CanyonaEURtms sister ships, Sansinena and Lake Palourde, which Barracuda also owned^[23]. However, because Torrey Canyon had eventually sunk there was a problem in arresting her. As the former President of the ComitA(c) Maritime International, Patrick Griggs CBE, explained^[24]:

In the context of establishing English jurisdiction, the loss of the ship itself was an immediate problem aEUR" though it was suggested that the presence of a lifeboat in Penzance, recovered from the ship, might be enough to found it. (This was never tested). The owners were a Bermudian company not directly amenable to English jurisdiction: but they did own two other tankers. However, claimants could reasonably assume that these two sister-ships would be kept well away from the UK, and so there seemed to be an insoluble jurisdictional problem.

22. Ultimately on 15 July 1967, the British Government arrested one of the sister ships, Lake Palourde, in Singapore. She was on a voyage from California to the Persian Gulf, but urgently required two coils of wire rope. Her owners arranged to have the coils delivered outside the three mile limit, but when the ship reached the proposed rendezvous, there was no delivery ship. So she proceeded into Singapore Harbour. She had been in harbour only a few minutes when a British Government lawyer, accompanied by the Bailiff of the High Court of Singapore, appeared in a launch and boarded her. The Bailiff affixed a warrant of arrest to the vesselaEURtms main mast, thus impounding her^[25].

23. On 20 July 1967, Lake Palourde was released after her insurer had provided a bond for USD8.4 million and Barracuda entered an appearance^[26]. As the ship steamed toward the open sea, a launch with FranceaEURtms charge daEURtmaffaires in Singapore, two lawyers representing the French Government, a High Court Bailiff and a policeman on board chased her but the pursuit ended unsuccessfully at the three mile limit^[26]. France eventually established jurisdiction a year later by arresting Lake Palourde in Rotterdam^[28].

24. In the event, Barracuda and the British Government agreed that proceedings should be heard in London and Barracuda submitted to English jurisdiction^[29].

Common law claims

25. Secondly, even with the jurisdiction issue addressed, affected parties had limited legal avenues for claiming compensation. Civil actions for oil pollution were limited to common law claims in tort against the vessel owner or other responsible parties, which required proof of fault. The first oil pollution case that reached the House of Lords, Southport Corporation v Esso Petroleum Co Ltd^[30], demonstrated the difficulties that claimants would face in bringing an action in any of the primary causes of action aEUR" trespass, nuisance and negligence aEUR" following pollution of the coastline by an oil spill at sea. Before I explain that decision, I should also note that any claimants were likely to be met with a very particular defence in respect of damages caused by oil from Torrey Canyon.

26. When a Colonel Wooton claimed damages for harm done by the leaked oil to plant and animal life on an English island that he leased, BarracudaaEURtms lawyers wrote expressing sympathy but denying liability. The lawyers said that even if owneraEURtms liability could be established^[31]:

aEURoethe majority of the oil was released by the bombing of the ship by the British Government without the consent or connivance of the owners.aEUR

27. The Southport case concerned a 680 ton oil tanker, Inverpool, that became stranded in an estuary following a defect in her steering gear. The master discharged 400 tons of oil to lighten the tanker, an action he considered necessary to save the vessel and crew from danger. The oil spill reached the Southport foreshore and caused extensive damage. Southport sued the tankeraEURtms owners and master, alleging that the deposit of oil on the foreshore was either a trespass to land, or a nuisance, or due to negligence. Southport had pleaded negligent navigation as the only basis for its negligence claim.

28. Devlin J, at first instance, found that Southport could not succeed in any claim. His Lordship found that, first, the defence of necessity answered any case in trespass and nuisance^[32], and, secondly, Southport had failed to prove negligence against either the owners or the master^[33].

29. However, his Lordship was not insensitive to SouthportaEURtms plight, and acknowledged the constraints of the common law in offering relief in such circumstances. He said:

aEURoeAt first sight, it may appear to be unreasonable that shipowners whose servants cause such damage in order to save their own property should not automatically have to pay for it. But Mr Nelson, for the defendants, submits that at common law there is no duty at all upon ships to avoid this type of damage. If Parliament considers that further legislation is necessary for the protection of the public, no doubt such legislation will be enacted. My duty is to apply the common law, and to examine therefore the causes of action upon which the plaintiffs rely.aEUR^[34]

30. In the Court of Appeal, Singleton and Denning LJJ, with Morris LJ dissenting, reversed the decision of Devlin J. Singleton LJ considered the claim on the basis of negligence, and did not consider nuisance or trespass. He held that the doctrine of res ipsa loquiter applied and placed the burden of proof on the owners and the master to explain the cause of the faulty steering gear. As they had failed to do so, he held that they were liable in negligence^[35].

31. Denning LJ would have agreed with Singleton LJ if res ipsa loquiter applied, but he preferred to decide the negligence claim under the rule in The Merchant Prince^[36], which shifted the burden of proof onto the defendant in aEURoeexceptional casesaEUR where the vessel proved to be dangerous by its own showing. Denning LJ held that the burden was on the defendants to prove inevitable accident^[36]. He found^[38]:

aEURoeApplying The Merchant Prince^[39], we find here that the ship ran on to the revetment wall. If the steering gear was in order, that was plain negligence. The ship seeks to escape from this charge of negligence by saying that her steering gear had failed and she was out of control. But that is no answer unless she proves aEUR" and the legal burden is on her to prove aEUR" that it was no fault of hers that the steering gear had failed. She has not discharged that burden, or even attempted to discharge it. She is, therefore, liable.aEUR

32. In addition, Denning LJ held that the trespass claim failed, because no physical act had been done directly against SouthportaEURtms land^[40], as did the private nuisance claim, because the harm had to come from the use of land, not of the sea^[41]. However, he considered that the discharge of oil could constitute a public nuisance for which the owners and master would be liable^[42], unless they could show that such discharge was aEURoean unavoidable necessity [that] was not attributable to their negligenceaEUR^[43]. He found that, on the evidence, they had failed to do so.

33. The House of Lords overturned the Court of AppealaEURtms decision. They found that, in the face of the necessity to discharge oil for the safety of the crew, neither trespass nor nuisance could succeed without some underlying negligence. Southport had only pleaded negligent navigation against the master and had not alleged that the steering breakdown may have been due to lack of proper care or unseaworthiness. In their LordshipsaEURtm view, as Devlin J had determined that the master was not negligent, the vicarious liability allegations against the owners also had to fail^[44]. Further, Lords Tucker and Radcliffe indicated their support for the conclusion of Denning LJ that there was no case for trespass on the facts^[45]. Lord Radcliffe also said that neither the owners nor the master was responsible for private nuisance, and that the defence of necessity answered any possible claim of public nuisance^[46].

British GovernmentaEURtms claims

34. Thus, the British GovernmentaEURtms causes of action against the owners of Torrey Canyon were for negligence and public nuisance. Each claim required proof of negligence but this did not appear to be a problem in the circumstances, given the fault of Capt Rugiati. However, as Griggs noted, it was not clear whether the crew were the servants of the registered owners or of the long-term charterers, a fact that might have given rise to issues of vicarious liability^[46].

Limits to compensation

35. Thirdly, in England the owners of Torrey Canyon could limit liability at about APS1.75 million, about a quarter of what the British and French Governments were seeking in compensation^[48]. In addition, Guernsey, BP and several individuals had begun proceedings against Barracuda, or would shortly do so^[49]. Thus, the maximum limitation fund would not go far in settling all these claims.

36. Eventually, on 11 November 1969 the Attorney-General, Sir Elwyn Jones, told the House of Commons that the claims of the British and French Governments had settled for APS3 million, a sum that was inadequate to meet the loss and damage caused. As Sir Elwyn told the House, at the very moment of his announcement, a diplomatic conference was taking place in Brussels to create a convention the aim of which was to improve the position of coastal states^[50].

37. The Torrey Canyon disaster made evident that traditional legal remedies were inadequate to deal with the consequences of pollution from ships. If claimants were left to pursue common law claims for compensation, based on the subjective fault of the ship, and to establish jurisdiction, either against a ship that had not sunk or, as was even then unusual, against a sister ship, they would not be likely to recover damages, or an adequate amount promptly or perhaps at all. The complex problems presented by the Torrey Canyon spill demanded that a new international system be urgently developed.

The international response to the Torrey Canyon incident

38. The international law governing liability and compensation for damage caused by oil pollution radically transformed in the aftermath of Torrey Canyon with the entry into force of, first, the International Convention on Civil Liability for Oil Pollution Damage 1969 (CLC 1969) as amended by the Protocol of 1992 (CLC 1992) and, secondly, funds established under the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 (1971 Fund Convention) as amended by the Protocol of 1992 (1992 Fund Convention) and supplemented by the Protocol of 2003 to that Convention (2003 Protocol)^[51]. The current fund is known as the 1992 Fund and the fund established by the 2003 Protocol is known as the Supplementary Fund^[52]. The key objective of those treaties was to ensure adequate compensation for third parties who suffered loss or damage as a result of shipping incidents.

39. The CLC 1992 is given force of law in Australia by the Protection of the Sea (Civil Liability) Act 1981 (Cth), and the 1992 Fund Convention and certain provisions of the 2003 Protocol are given force of law by the Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) and three related Acts^[53].

The scheme of the CLC 1969

40. The British Government swiftly called for a new international regime immediately following the Torrey Canyon incident and before the claims had been settled. It submitted a Note to the International Maritime Organisation (IMO), known at the time as the Inter-Governmental Maritime Consultative Organisation, appealing for it to consider, as a matter of urgency, changes in international maritime law and practice governing oil pollution. The British argued that the incident had highlighted that the law relating to international shipping and oil pollution was inadequate and out of date. They contended that:

The scale of the Torrey Canyon disaster was unprecedented. The wreck of tankers on the high seas has not hitherto had such significant repercussions on the coast bordering those seas. As a consequence the international law governing such matters does not take adequately into account the interests of countries which may have no direct interest in a ship or its cargo but the territory of which may be affected by accident to the ship.

41. The IMO established a legal committee (that now independently continues in existence) charged with the task of producing an international convention that addressed issues of liability and compensation for oil pollution. At around the same time, the ComitA(c) Maritime International (CMI) also established the International Torrey Canyon Sub-Committee to work with the IMO on this project, and the CMI produced its own draft convention. Both the IMO and CMI draft conventions were presented at the IMO International Conference on Marine Pollution Damage, held in November 1969 in Brussels, and from which emerged the CLC 1969. The CLC 1969 entered into force in 1975.

42. As we all know drafting by committee, especially one full of lawyers is anything but straightforward or fast. Yet the 1969 CLC had a remarkably rapid gestation period. The reason may lie in the following story of its genesis. One source gave the following account^[56]:

When the Torrey Canyon spilled its cargo of oil on the Scilly Isles in 1967 and it was realised that there was no international regime to determine who paid for the consequences of an accidental oil spill, Bill [Reynardson, vice-president of the CMI] got together with Lord Devlin [chair of the CMI International Sub-Committee] in his kitchen and drafted what became the Civil Liability Convention on which most international oil spill compensation law has been based since 1970.

43. But whatever the source of the provisions, whether the conference rooms of Brussels or Lord DevlinaEURtms kitchen table, their nature was revolutionary in many respects. The purpose of the CLC 1969 was to create aEURoeuniform international rules and procedures for determining questions of liability and providing adequate compensationaEUR to persons who suffered damage resulting from oil spills from ships^[58]. It gave persons affected the advantages of immediate identification of the owner of the tanker as the person who was liable and created effective jurisdiction over that owner^[59].

44. The CLC 1969 had the following key provisions:

• it applied, first, to direct damage by pollution resulting from oil spills from laden tankers caused in the territory, including the territorial sea, of States parties, and, secondly, to make recoverable the cost of reasonable measures to prevent or minimise pollution damage (Art II);
• both governments and other persons could make claims (Art I(2));
• it prohibited any claims being made against the shipowner for pollution damage otherwise than under the Convention (Art III(4));
• it imposed strict liability on the shipowner at the time of the incident, with very limited exceptions (Art III(1)-(3)).
• it retained a right for the owner, under certain conditions, to limit his liability to an amount linked to the tonnage of the vessel (Art V(1));
• it imposed a system of compulsory liability insurance for tanker owners and coupled this with a right of claimants to take direct action against the insurer (Art VII). And, in order to ensure the recoverability of compensation, flag States parties were to prevent ships of their flag from trading unless a certificate attesting to the vesselaEURtms insurance or financial security had been issued^[60].

45. The imposition of strict liability represented a complete reversal of the common law approach, which had required evidence of fault. As MAY=ns Jacobsson, the former director of the International Oil Pollution Compensation Funds, noted, aEURoein 1969 it broke new grounds in maritime lawaEUR^[61]. The standard of liability was one of the key points of contention at the 1969 Brussels Conference. The Report of the CMI International Sub-Committee, summarising the attitude of National Associations that opposed a new strict liability standard, had stated^[62]:

By introducing the concept of strict liability, which is foreign to the law of the sea, one would risk upsetting the whole structure of private maritime law merely to deal with the problem of oil pollution, which does not call for exceptional treatment. The carriage of oil in bulk does not create the type of exceptional danger that justifies exceptional measures, as in the case of nuclear damage.

46. These provisions of the CLC 1969 were not only ground breaking but have proved enduring. Since 1969, all IMO Conventions dealing with the consequences of oil pollution from ships have imposed strict civil liability on the shipowner and sometimes the shipaEURtms crew, have included requirements for compulsory liability insurance and have conferred rights of direct action against insurers^[63].

47. The scheme of imposing strict civil liability on shipowners for oil pollution from their vessels, that the CLC 1969 pioneered, has flowed into the sphere of criminal responsibility as well. Shipowners, shipsaEURtm masters and crew now face criminal consequences for any oil pollution that is sourced to their vessels.

48. Australia has implemented the amended International Convention for the Prevention of Pollution from Ships, 1973 known as MARPOL 1978^[64], by enacting the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth)^[65]. That Act creates a series of criminal offences of strict liability then provides for limited exceptions. The principal strict liability offence arises under s 9(1B) of that Act which provides that the master, charterer and owner of a ship each commit an offence punishable on conviction by a fine not exceeding 20,000 penalty units or $4.2 million^[66] if oil or an oily substance is discharged from a ship into the sea in the territorial sea of Australia and its exclusive economic zone, and, in the case only of an Australian registered ship, beyond the exclusive economic zone^[66].

49. One recent example of the application of State law occurred after Pacific Adventurer discharged 270 tonnes of oil into the sea off Cape Moreton in March 2009. In October 2011 the owners pleaded guilty to offences^[68] and were fined a total of $1.2 million^[69].

The scheme of the 1971 Fund Convention

50. The CLC 1969 was quickly followed, in Brussels, by the adoption of the 1971 Fund Convention, the second tier of the compensation scheme. The 1971 Fund Convention entered into force in 1978. It addressed two concerns, namely that, first, the amount of compensation under the CLC 1969 was likely in many cases not to be sufficient, and, secondly, were the burden on shipowners of providing full compensation under the CLC 1969, it would be too heavy, and some responsibility had to be shifted to the oil industry as a whole. The main purpose of the 1971 Fund Convention was to enable the payment of additional compensation to claimants if the compensation available under the CLC 1969 was inadequate or unobtainable (Art 2).

51. The 1971 Fund Convention had the following relevant features:

• the establishment of an international Fund financed by the oil industry and its administration by an intergovernmental organisation, the International Oil Pollution Compensation Fund 1971 (Arts 2, 10);
• the provision of an additional source of compensation if the amount of damage suffered exceeded the owneraEURtms liability under the CLC 1969, or the owner had a valid defence under the CLC 1969, or he or his insurers were unable to meet their liability (Art 4(1)(a)-(c));
• the right of the shipowner or his insurer to be indemnified by the Fund for liability incurred under the CLC 1969 in excess of a set amount (Art 5);
• an increase in the maximum amount payable per incident, including the amount paid by the shipowner and his insurer, to 60 million Special Drawing Rights (SDR) (USD81 million) (previously 30 million SDR or USD40.5 million) (Art 4(3))^[70].

52. When the CLC 1969 and 1971 Fund Convention were agreed, States parties assumed that the limits of liability then settled would be practical, and hopefully, sufficient to cover disasters like the Torrey Canyon. History has shown that such limits rapidly become out of date. As Professors Nicholas Gaskell and Craig Forrest note^[71]:

It seems as if each major disaster has provided evidence that the existing limits are not high enough; but when the limits are eventually increased, a further disaster shows that the new limits are also inadequate.

53. That has proved true. The CLC 1992, the 1992 Fund Convention and the 2003 Protocol did not quell the subsequent perceptions of many that in todayaEURtms world the scope of their covers can and should be increased.

The success of the post-Torrey Canyon international regime

54. The swift transformation of the international maritime law regime governing oil pollution from ships from that applying immediately before the Torrey Canyon disaster to that four years after her grounding was quite remarkable. And because of this there can be no doubt that Torrey Canyon was truly a ship that changed the law.