CLC'92 or Bunker convention – which one applies in case of bunker spill from a tanker in ballast? Determining this is anything but straightforward as demonstrated by the recent decision of Hague Court of Appeal in The Bow Jubail [2020].
Ship’s hull was punctured after alliding with the jetty, resulting in 217t of bunker spill in port. Losses claimed against owners were €80m+. Liability would be limited to €17m as per Bunker Conv (BC), whereas CLC'92 would have provided adequate compensation. The answer hinged on one question – was the vessel free of residues of the cargo last carried? If ‘yes’ then BC would apply.
Court said it is upto the owners to demonstrate that. It placed a lot of emphasis on post incident survey reports. Surveyors representing owners had stated that vsl was clean. However, no inspection of COTs had been done & there were doubts about the sampling of slops being representative. As per the court the report did not provide convincing evidence that vessel was clean & it also noted that claimants’ experts had not been invited or allowed onboard. CLC was thus applicable.
For tanker owners in a similar situation - a joint survey or independent experts are needed to certify that vsl is free of residues if it has carried persistent oils previously.
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