Deputy Director Cao Desheng of the Maritime Safety Administration of the Ministry of Transport interprets the Measures for the Implementation of Civil Liability Insurance for Oil Pollution Damage of Ships of the People's Republic of China
On August 19, 21, the Ministry of Transport issued the Measures for the Implementation of Civil Liability Insurance for Oil Pollution Damage of Ships of the People's Republic of China (Ministry of Transport Order No.3 of 21, hereinafter referred to as the Measures).
Background of the promulgation of the Measures
The Law of the People's Republic of China on the Protection of the Marine Environment (hereinafter referred to as the Marine Environment Law) revised in p>1999 is the legal basis for the establishment of a compensation mechanism for oil pollution damage from ships in China. Article 66 of the Law stipulates: "The State shall improve and implement the civil liability system for oil pollution damage from ships, and establish the system of oil pollution insurance and oil pollution damage compensation fund for ships according to the principle that the liability for oil pollution damage from ships is shared by the shipowner and the owner. The specific measures for implementing the ship oil pollution insurance and oil pollution damage compensation fund system shall be formulated by the State Council. "
On September 2, 29, the 79th executive meeting of the State Council deliberated and adopted the Regulations of the People's Republic of China on the Prevention and Control of Marine Environment Pollution by Ships (hereinafter referred to as the "Regulations on Pollution Prevention"), which came into effect on March 1, 21. The Regulations on Pollution Prevention further clarifies the civil liability insurance system for oil pollution damage of ships (hereinafter referred to as the "oil pollution insurance system") in accordance with the relevant provisions of the Marine Environment Law and with reference to relevant international treaties, so as to ensure that ships can have the ability to pay compensation commensurate with their liability limits after oil pollution accidents. Because the provisions of the Pollution Prevention Regulations on the oil pollution insurance system are relatively principled, it is necessary to refine and clarify it on the basis of the principled provisions of the superior law by formulating corresponding supporting regulations. To this end, the Ministry of Transport included the formulation and promulgation of the Measures in a class of legislative projects in 21.
The present situation of compensation mechanism for oil pollution damage from ships in China
China is a big shipping country and a big oil importer. In recent ten years, the marine oil transportation volume has gradually increased. According to the report of National Energy Administration, China's net oil import in 21 is expected to reach 21 million tons. Most of the imported oil is transported by sea ships. With the increase of oil volume and the increase of tanker scale, the risk of oil spill pollution accidents on ships is increasing, and the pollution disposal ability and damage compensation ability are not suitable for the increase of oil volume. The promulgation and implementation of "Marine Environment Law" and "Regulations on Pollution Prevention" further clarified the institutional framework and principle requirements of the compensation mechanism for ship pollution accidents in China, and adopted the methods of ship owner's insurance for ship oil pollution damage and oil cargo owner's contribution to set up the compensation fund for ship oil pollution damage to solve the problems of environmental pollution and damage compensation caused by ship oil pollution, and promoted the establishment of the compensation mechanism for ship oil pollution damage to enter a substantive stage.
Internationally, the International Maritime Organization has formulated international conventions such as the International Convention on Civil Liability for Oil Pollution Damage and the International Convention on Civil Liability for Oil Pollution Damage. These regulations stipulate that the applicable ships should be insured with civil liability insurance for oil pollution damage. China is a party to the above convention, and the relevant ships have been insured against oil pollution according to the requirements of international conventions.
the significance and function of the civil liability insurance system for oil pollution damage from ships
There are frequent accidents of oil spill pollution from ships in China, which have caused great harm to coastal fisheries, aquaculture and marine ecological environment. By establishing a ship oil pollution insurance system, with the help of the economic strength of insurance companies, once an oil pollution accident occurs, the ship pollution loss can be guaranteed to be compensated within the compensation limit; It can also solve the problem of start-up funds for cleaning up pollution in emergency situations, and get timely and effective cleaning and repair before the polluted environment deteriorates further.
Main provisions and requirements of the Measures
1. About the scope of application. The "Measures" is one of the supporting laws and regulations of the Marine Environment Law and the Pollution Prevention Regulations. The "Regulations on Pollution Prevention" defines the scope of application of ships insured with civil liability insurance for oil pollution damage, that is, except for ships with a gross tonnage of less than 1, tons carrying non-oil substances, other ships sailing in the sea areas under the jurisdiction of the People's Republic of China must be insured with civil liability insurance for oil pollution damage, specifically including all ships carrying persistent oil or non-persistent oil substances, and ships with a gross tonnage of more than 1, tons carrying non-oil substances, regardless of whether they are international navigation ships or domestic navigation ships. Therefore, the scope of application of the Measures clarifies that the following three types of ships sailing in the waters under the jurisdiction of China should participate in compulsory insurance in accordance with the provisions of these Measures: first, ships carrying non-oil substances with a gross tonnage of more than 1, tons; Second, all ships carrying non-persistent oil substances; Third, all ships carrying persistent oil substances in bulk. It should be noted that the requirements of the Pollution Prevention Regulations for ships carrying bulk persistent oil substances are stricter than those of relevant international conventions, and the requirements of international conventions for "ships carrying more than 2, tons of bulk persistent oil as cargo" are extended to all ships carrying bulk persistent oil. Although this may have a certain impact on the small oil tankers engaged in coastal transportation in China, some small oil tankers with poor ship condition, low management level and high accident risk may be forced to withdraw from the coastal oil transportation market because they cannot bear the high insurance costs; However, it is also in line with the direction of eliminating backwardness, purifying the coastal oil transportation market, and promoting the development of tanker companies to high standards and standardization. It is also in line with China's commitment to join the 1992 International Convention on Civil Liability for Oil Pollution Damage (hereinafter referred to as CLC92 Convention).
Civil liability insurance for oil pollution damage also involves insurance institutions. Paragraph 3 of Article 53 of the Regulations on Pollution Prevention stipulates: "Commercial insurance institutions and mutual insurance institutions that undertake civil liability insurance for oil pollution damage from ships shall be determined and announced by the national maritime administrative agency after consulting the insurance regulatory agency of the State Council." Articles 9 and 1 of the Measures specify the confirmation conditions of insurance institutions. Thus, the Measures not only apply to ships, but also to relevant insurance institutions.
second, about the competent authorities. The International Convention on Civil Liability for Oil Pollution Damage and the International Convention on Civil Liability for Oil Pollution Damage were established by the International Maritime Organization to strengthen the supervision and management of ship pollution prevention. China is a party to these conventions, and the maritime administrative agency, as the competent authority for ship pollution prevention in China, represents the Chinese government's rights and obligations in fulfilling the conventions. The civil liability insurance system for ship oil pollution damage is one of the contents of ship pollution prevention management. Therefore, it is stipulated in the Measures that the national maritime administrative agency is the competent authority for the implementation of these Measures, and the maritime administrative agencies at all levels along the coast shall implement these Measures in accordance with their respective responsibilities.
3. The amount of civil liability insurance for oil pollution damage from ships. At present, the relevant conventions, laws and regulations applicable to the limitation of civil liability for oil pollution damage of ships in China mainly include: the 1992 International Convention on Civil Liability for Oil Pollution Damage, the 21 International Convention on Civil Liability for Oil Pollution Damage, the Maritime Law of the People's Republic of China (hereinafter referred to as the Maritime Law) and the Decision on the Limitation of Maritime Compensation for Ships Less than 3 Gross Tonnage and Coastal Transportation and Coastal Operation Ships. Among them, the 21 International Convention on Civil Liability for Fuel Pollution Damage does not directly stipulate the limitation of liability of ships, but only allows the limitation of liability of ships according to applicable domestic laws or international limitation systems. There is no separate limitation of civil liability for oil pollution damage from ships in Maritime Law, but only the limitation of maritime liability for personal injury and non-personal injury and death, in which the limitation of compensation for oil pollution damage from ships is applicable to non-personal injury and death claims.
Based on this, the Measures have made corresponding provisions for different ships and their civil liability limits for oil pollution damage according to different existing management regulations, namely: (1) The limits of ships carrying persistent oil substances shall meet the 1992 International Convention on Civil Liability for Oil Pollution Damage; (2) Except for (1), ships carrying oil substances and ships carrying non-oil substances with a gross tonnage of more than 1, tons and a gross tonnage of more than 3 tons shall meet the provisions of the Maritime Law of the People's Republic of China on the limitation of compensation for non-personal injuries and deaths; Ships with a gross tonnage of less than 3 tons and engaged in cargo transportation between ports or coastal operations in China shall meet the requirements of the No.1 Order of the Ministry of Communications in 1993 according to the limit stipulated by the Maritime Law of the State Council authorized by the Ministry of Communications, that is, 5% of the limit stipulated in the Maritime Law of the People's Republic of China on compensation for non-personal injury or death.
fourth, about insurance institutions. When a ship participates in civil liability insurance for oil pollution damage, it must involve insurance institutions, which is an important link to effectively implement the civil liability insurance system for oil pollution damage of ships. In order to effectively implement, safeguard national interests and the rights and interests of all parties, and further standardize the management of ship pollution prevention, insurance institutions should be included in the scope of management. The Measures refine the system of confirmation and publication of insurance institutions engaged in civil liability insurance for ship oil pollution damage by maritime administrative agencies according to the regulations.
at present, insurance institutions engaged in civil liability insurance for oil pollution damage from ships are mainly divided into two categories, namely commercial insurance institutions and mutual insurance institutions. In order to ensure the effective implementation of the civil liability system for ship oil pollution, protect the interests of China shipowners and avoid unnecessary influence on the existing market order of oil pollution insurance business, the Measures stipulate that insurance institutions engaged in civil liability insurance for ship oil pollution damage of China nationality, whether commercial insurance institutions or mutual insurance institutions, whether overseas or domestic, should meet the requirements of relevant registration, personnel, financial status, compensation ability and service reputation, and submit relevant materials to the State Maritime Administration for approval. It should be noted that for mutual insurance institutions, Article 9 of the Measures clarifies the confirmation criteria of "the net fund in the previous year exceeded US$ 1 million or the net fund per ton exceeded US$ 3". This regulation mainly considers the following factors: first, the matching between the market demand for oil pollution insurance and the total underwriting capacity of insurance institutions; Second, the underwriting and compensation ability of mutual insurance institutions should be able to ensure that the insured can get paid in time; The third is to summarize the practical work experience of filing and confirming insurance institutions in recent years.
V. Certificate or document on civil liability insurance for oil pollution damage from ships. The certificate or document of civil liability insurance for oil pollution damage of ships is one of the certificates and documents for preventing pollution of ships, and it is also the certificate of civil liability insurance for oil pollution damage of ships. The International Convention on Civil Liability for Oil Pollution Damage stipulates that ships should hold the Civil Liability Insurance or other financial guarantee certificate for oil pollution damage, while the International Convention on Civil Liability for Oil Pollution Damage stipulates that ships should hold the Civil Liability Insurance or other financial guarantee certificate for oil pollution damage. Therefore, the "Measures" stipulate that after China-registered ships are insured with civil liability insurance for oil pollution damage or obtain other financial guarantees, they should apply to the maritime administrative agency directly under the port of registry for the corresponding civil liability insurance certificate for oil pollution damage, among which ships carrying bulk persistent oil substances should apply for the Civil Liability Insurance for Oil Pollution Damage or other financial guarantee certificates; Ships with a gross tonnage of more than 1, tons carrying non-persistent oil substances shall simultaneously apply for the Civil Liability Insurance or Other Financial Guarantee Certificate for Non-persistent Oil Pollution Damage and the Civil Liability Insurance or Other Financial Guarantee Certificate for Fuel Pollution Damage; Other ships should apply for the Civil Liability Insurance for Fuel Pollution Damage or other financial guarantee certificates. However, foreign ships sailing in the sea areas under China's jurisdiction, to which the International Convention on Civil Liability for Oil Pollution Damage applies, should hold the Certificate of Civil Liability Insurance or Other Financial Guarantee for Oil Pollution Damage issued by the competent authority of the contracting state or its authorized institution. The application of the International Convention on Civil Liability for Fuel Pollution Damage shall be accompanied by the Civil Liability Insurance or other financial guarantee certificate issued by the competent authority of the contracting state or its authorized institution. Other ships shall hold valid insurance documents or other financial guarantee certificates.