14.05.14

Liability for Oil Pollution

Krishna Desai
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(876) 922-5860 or (876) 322-0579
Liability for Oil Pollution

Oil pollution has a number of potentially serious and long-lasting negative impacts on Jamaica's coastal and marine resources, and the important economic uses made from those resources including our wetlands, sandy beaches, and warm clear seas.

With no domestic supply of oil Jamaica has to import most of the oil it needs for the generation and supply of power to the grid, for the fuelling of vehicles, and for energizing industrial processes. This oil arrives in Jamaica by way of ships specially designed to be able to handle the potentially perilous sea voyage from oil-producing regions such as South America and the Middle East. When these ships arrive in port the oil has to be offloaded into land based facilities for storage, processing and distribution to wherever it is ultimately consumed. The potential for oil pollution exists at any point in the voyage, off loading, storage, refining, distribution and consumption.

While Jamaican sea ports are presently active maritime areas, the proposed logistics hub will by necessity lead to the further development and expansion of port infrastructure—potentially into environmentally sensitive areas—and there is likely to be an increase in the size and number of vessels using our sea lanes and our harbours. As sea lanes and ports are by their nature confined spaces, there will be an increased likelihood for incidents leading to oil spills from ships and there is the also the existing potential for oil spills from land-based facilities reaching and polluting the coastal environment.

A number of statutes create liability in general for pollution and also deal specifically with oil pollution, whereby both criminal and civil liability may arise from the release of the polluting matter. Depending on the source of the pollution the liability will tend to attach to the owner of the ship and/or the ship's captain, or to the owner or operator of the land-based storage facilities, or to any person found to have who intentionally or negligently caused the pollution. When charged, these persons must pay close attention to the wording of the statute creating the offence, the date on which the statute was passed, and in which maritime space the spill occurred so as to properly inform themselves of the liability they face.

Oil pollution received treatment in statute law from as far back as 1874, when the Harbours Act was passed; although the penalty created for the captain of any vessel, or any other person, who throws or deposits or permits to be thrown or deposited any oil in any harbour is only a fine not to exceed $2,000 or, in default of payment, the Court may award imprisonment, with or without hard labour, for a period not exceeding 6 months.

Of more recent vintage, but yet still quite old, is the Natural Resources Conservation Authority Act of 1991 (the NRCA Act), which is the primary piece of legislation dealing with environmental matters and creates both criminal and civil liability in relation to oil spills (whether at sea or on land). Of some interest the NRCA Act provides that where it appears that any polluting matter is present in any waters, the Authority may remedy or mitigate any pollution, or restore the waters, so far as it is reasonably practicable to do so, to the state in which they were immediately before the matter became present in the waters.