油類汚染損害賠償 및 補償法 관련 最近 動向

The Korean Oil Pollution Compensation Act(KOPCA) deals with legal matters regarding compensation for the oil pollution damages caused by the oil tanker. In the meantime, Korean Commercial Code and Civil Code is applicable law for the compensation on the oil pollution damages resulted from the bunker oil leakage from the general cargo vessel. The KOPCA is enacted based on both International Conventions for the Civil Liability for Oil Pollution Damage(CLC) and International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. The CLC and KOPCA provide the shipowner with the limitation of its liability. On the other hand, the shipowner is strictly liable for the damages and should enter into a compulsory liability insurance contract to guarantee compensation for the victims up to certain level, and, furthermore, the victims are entitled to bring about a direct action against the liability insurer. The FUND has functioned very well in respect of compensating the damages up to some level above the shipowner’s limitation amount through the so-called two-tier system. However, the Fund did not meet the need of the victims to be compensated as soon as possible. In the oil pollution case of Prestige and Hebei Spirit, Spain and Korea governments tried to compensate damages to the victims by way of special Act. In Erica case, France court rendered a judgment which imposed full responsibility upon the importer, rather than the shipowner, in order to compensate victims. In Exxon Valdez case, US Supreme court imposed a punitive damages upon the shipowner. It appears that there is a trend for the national courts to evade the CLC regime and impose full liability upon the shipowner or other entities for the benefit of victims. The Bunker Convention does not have a free-standing provisions on the shipowner’s limitation of the liability. Accordingly, the oil pollution victims will join in the general limitation procedures as one of the claimants. As a result, the victims’s portion to be distributed are decreased and thus they are not fully protected by the Convention. This article addresses these new developments.