Commentary on Sections Civil liability for failure to respond to environmental emergency Section 4 and Schedule – Civil liability: supplementary
22.Paragraphs 1 and 2 of the Schedule set out the limits to the amounts recoverable under sections 2 and 3. The amounts are those set out in Article 9 of the Liability Annex, and are accordingly expressed in International Monetary Fund Special Drawing Rights. Under current exchange rates, the limits for environmental emergencies involving a ship range from the equivalent of approximately US$1.5 million for the smallest vessels, rising upwards to more than US$45 million for the largest passenger cruise vessels which have operated recently in Antarctica. A limit equivalent to US$4.5 million is applicable to environmental emergencies not involving ships.
23.To allow for the implementation of any amendments to the financial limits in Article 9 of the Liability Annex that may be adopted by the Antarctic Treaty Consultative Parties under Article 9(4), paragraph 1(4) of the Schedule provides for the Secretary of State to amend the limits in paragraph 1(2) and (3) by order.
24.Paragraph 1(5) of the Schedule provides that where the environmental emergency was caused intentionally, or recklessly and with knowledge that such an environmental emergency would probably result, the liability is not limited by the levels set out in this paragraph. This reflects Article 9(3) of the Liability Annex.
25.Paragraph 2 of the Schedule provides for the circumstances where there is liability under both the Act and Schedule 7 to the Merchant Shipping Act 1995. Sections 2 and 3 of the Act provide for liability to cover the reasonable costs of response action in the event of an environmental emergency. If the limit on liability in the Merchant Shipping Act 1995 allows for more of the reasonable costs of response to be recovered than the limits in paragraph 1, then paragraph 1 does not apply. However, if applying the limits on liability in the Merchant Shipping Act would result in a lower amount being recovered towards the reasonable costs of response than is laid out in paragraph 1, then the limits in that Act do not apply. The result is that at least the amounts laid down in paragraph 1 are always recoverable to cover the costs of reasonable response action.
26.Paragraph 3 of the Schedule provides that where two or more organisers of activities in Antarctica are involved in an emergency, they will be jointly and severally liable. However, no person will be liable in respect of any part of an emergency that did not arise from the activities organised by that person.
27.Paragraphs 4 and 5 of the Schedule prevent double recovery of costs. So, for example, an organiser is not liable in respect of costs that he/she or another person has already paid under the provisions of the Act or of Annex VI as implemented in another State. Neither is an organiser to be liable under both the provisions of the Act and under Part 9 of the Merchant Shipping Act 1995 (which deals with salvage and wrecks) in respect of the same costs.