Commentary on Sections Civil liability for failure to respond to environmental emergency Section 2 – Liability to Parties to Annex VI
13.Under Article 5(2) of the Liability Annex, Parties to the Annex are encouraged to take response action in respect of an environmental emergency in the event that the person causing the emergency fails to take reasonable, prompt and effective response action. Section 2 enables a Party who does take such action, including the United Kingdom Government, to recover its costs from the person in question. The persons who may be liable under this section include, but are not limited to, those to whom section 1 applies. This reflects Articles 6 and 7 of the Liability Annex. See, in particular, Article 6(1).
14.Subsection (2) provides that where the Crown, or a person specifically authorised by the Crown, undertakes response action after an environmental emergency arising from activities organised by a person based in the United Kingdom, or from activities connected with the United Kingdom, the Government is entitled to recover the costs of such actions. See further section 10, which defines “the Crown” for the purposes of Part 1 of the Act. In practice, the most likely Crown entity to be involved in any response to an emergency in Antarctica will be the Royal Navy or the British Antarctic Survey.
15.Subsection (3) enables other Parties to the Liability Annex to recover the costs, through the British courts, of any reasonable response action that they have undertaken in respect of an environmental emergency arising from activities, provided that the activities giving rise to the environmental emergency were organised by a person based in the United Kingdom, or by a person based in a State that is not Party to Annex VI where the activities are connected with the United Kingdom. This reflects Article 7(1) of the Liability Annex.
16.Subsection (4) exempts the Crown and the other Parties to Annex VI from liability under this section for any failure on their part to take response action to environmental emergencies arising from their own activities. This reflects Article 7(1) of the Liability Annex, which applies only to actions against non-State (that is, non-governmental) operators. The obligation under Article 5 of the Liability Annex to take such response action applies equally to State and non-State operators. However, Article 7(4) of the Annex stipulates a set of international mechanisms for determining the liability of a Party as a State operator under Article 6(1); and moreover, that only these mechanisms may be used.
17.Subsections (6), (7) and (8) set out the limitation period which applies to actions brought under this section. Proceedings may not be brought after a period of three years from the date of commencement of the response action, or, if later, from the date when the plaintiff ascertained, or ought reasonably to have ascertained, the identity of the person organising the activities, subject to a maximum of fifteen years from the date of commencement of the response action. This reflects Article 7(1) of the Liability Annex.