국제유류오염손해배상제도의 타당성에 대한 비판적 검토

Abstract

1969 CLC(1969 International Convention on Civil Liability for Oil Pollution Damage) and 1971 FC(1971 International Convention on Establishment of an International Fund for Compensation for Oil Pollution Damage) were established to regulate oil pollution damage by a tanker since the ‘Torry Canyon 1967’ accident. The regime of CLC and FC has regulated oil pollution damage from thenceforth successfully. But the major oil pollution accidents such as ‘Erika 1999’ and ‘Prestige 2000’ have raised questions from a perspective of adequate compensation for and prevention of oil pollution damage. To answer the questions, the two Protocols (‘2000 Protocol’ and ‘2003 Protocol’) have been adapted for increasing liability limits and establishing the Fund for supplementing shortages respectively. Despite all the changes to the compensation regime for oil pollution damage through the years, some principles have remained essentially unchanged since its establishment. The unchanged vital principles are strict liability, channeling of liability, limitation of liability and compulsory insurance and Some of them have been criticized especially by the countries in EU. The goal of this article is to critically examine to the extent that the main features of current CLC and FC match with the aim or function of liability law, inter alia from a perspective of adequate compensation for and prevention of oil pollution damage. This article argues that channeling of liability and limitation of liability conflict with the aim and function of liability rule in that they deter from providing adequate compensation to a victim and encouraging optimal incentives to prevent the accident risk. Although there are some problems as seen the above, it is not desirable to consider the adequacy of CLC and FC regime only on the legal-theoretical grounds, but also it needs to consider the practical demands of related parties. Therefore this paper proposes some devices to harmonize the practical demands of industries with the aim of liability law.