Somebody Fouled Up

Twenty-two years ago the Norwegian author-explorer, Thor Hyerdahl, sailed his balsawood Kon Tiki raft halfway across the Pacific Ocean, and he remembers that he and his small crew were “thrilled by the beauty and purity of the ocean.” When Hyerdahl eased into the West Indies this summer after crossing the Atlantic in a boat built of papyrus reeds, he was visibly shaken by the flotilla of bottles, tubes and industrial scum that had bobbed endlessly past him. He described sailing through sheets of “pelagic particles,” oily droplets, sometimes encrusted with barnacles, which smelled like the unappetizing combination of rotten fish and raw sewage. At first he thought that he was crossing the wake of an oil tanker that had just finished cleaning its tanks, but by the fourth or fifth such passage he began to suspect that some wholesale polluting of the saltwater seascape had been going on since his Kon Tiki voyage.

Hyerdahl’s observations were not unique, but his well-advertised adventure focused attention on predictions of doomsayer ecologists that the oceans will be a terminal case by the end of the decade. At the least, says Dr. Max Blumer, senior scientist at the Woods Hole Institution, continued dumping of oil “may do irreversible damage to many marine organisms, to the marine food chain, and … may eventually destroy the yield and value of the food which we hope to recover from the sea.”

Paradoxically, pollution of the seas by oil has received more international treaty consideration than any other aspect of environmental depredation; the first efforts to curb oil pollution were made in the 1920s, but foundered in the face of a worldwide failure to grasp the scope or potential of the problem. Subsequent efforts produced a number of treaties and conventions. but loopholes and limitations in all of them have permitted indiscriminate dumping. The latest efforts by the international community to legislate against the hazards of seaborne oil traffic footnote this dismal history. Two new conventions, plus amendments to an earlier London Convention of 1954, are in varying degrees a surrender to the muscle of the maritime and oil industries, which have brought us ecological Pearl Harbors from the English Channel to Santa Barbara.

The conventions and amendments, drafted at Brussels last year, are now before the Senate Foreign Relations Committee and could provoke a showdown between the Nixon Administration and Senator Muskie, who fashioned the landmark Water Quality Improvement Act of 1970 and who is eager to strengthen his antipollution credentials for 1972. Muskie held some vastly underpublicized hearings in July on the most controversial of the measures, the Convention on Civil Liability for Oil Pollution Damage. Now he is not only worried that the convention isn’t tough enough, but that it will actually abrogate many of the rights of American citizens under his own legislation.

The Convention, which establishes rules governing the liability of the owner of an oil cargo vessel to governments and private parties for damages caused by oil pollution, sets a liability of $134 per ton, up to a ceiling of $14 million. Although this is similar to the $100 per ton, $14 million ceiling set by the Water Quality Improvement Act, there is one critical difference: under the Act, the money is earmarked exclusively for the clean-up costs incurred by the government, with private damage claims being additional. The Convention, on the other hand, provides that the $14 million meet the claims of both government and all private parties - potentially hundreds of claimants.

Robert H. Neuman, assistant legal advisor in the State Department and the chairman of the US delegation to the Brussels conference, told the Muskie Subcommittee on Air and Water Pollution that this is really no difference at all. He pointed out that “without2 2 the Convention the private claimant’s rights to recover against the vessel is limited, by 46 U.S.C. 183, to the salvage value of the vessel after the incident occurs, which of course may well be zero.” Washington lawyer Allan Mendelsohn, who negotiated maritime treaties for the State Department until 1967, replied that this 1851 law “is so archaic that its limiting effect would probably be voided by any court faced with the problem.” In any case, Congress could always take the radical step of amending 46 U.S.C. 183 to bring it into the twentieth century, thus saving American citizens a lot of money.

MEASURED AGAINST THE immediate and future threat of oil to the marine environment, the liability provisions of the proposed Convention are a scandalous concession to the marine and oil industries. Neuman testified that “our past experience indicates that they [the liability limits] are ample to cover the likely incidents of oil pollution,” and he is correct, except that “past experience” and “likely incidents” are inapplicable to the new generation of supertankers now being built: the gigantic Universe Ireland, with a capacity of 312,- 000 deadweight tons, is only an appetizer to the millionton tankers the Japanese claim they will soon be building. A disaster for a ship of that size would make the Torrey Canyon incident look like drippings from a leaky oil can.

Yet the $134 per ton and $14 million limit would cover liability only up to 100,000 tons; tankers could carry hundreds of thousands of tons more, with all the accompanying savings, and still not be liable for a penny more.

The traditional reason for the low liability provisions (the 1957 Brussels Convention set a $207 per ton limit, with no ceiling - thus the 1970 proposal actually is a step backward) has been the confessed incapacity of the marine insurers in London to underwrite a high limit policy. But their confessions have been unduly self-serving; in an August 20, 1969 letter to Senator Jennings Randolph, chairman of the Public Works Committee, the 14 leading insurers noted that “insurance above the maximum of $10 million is, we are satisfied, unobtainable.” Unaccountably, they found another $4 million within two months.

It is quite possible that $14 million does represent the limits of the London insurers, but this is no consolation for the coastal property owner who wakes up one morning to a blackened beach. If the tanker owners and the oil industry want to reap the savings offered by their new maxi-boats, it is not unreasonable to require them to find the insurance capacity to cover them. And the oil industry, which already enjoys the government-bestowed benefits of protective import quotas, guaranteed high prices for domestic oil, depletion allowances, and tax writeoffs, should bear a special responsibility.

By the same token, these privileged parties should be responsible for absolute liability - the exceptions offered by the Convention for acts of God, war, or third parties place the risks on unfortunate bystanders, not on the individual or enterprise that is in the position to administer, distribute and absorb such risks. “As between the tanker owner carrying the oil and the innocent victim who may not even use oil on his coastal property,” says Allan Mendelsohn, “fundamental principles of equity would demand that the victim be compensated, no matter what may have been the cause of the spill.” Absolute liability is the rule in international air transportation, and it might be argued that the passenger here at least assumes a certain risk that the victim of an oil spill never knew existed.

The Convention is sadly deficient in other areas as well. First, it is limited to vessels “actually carrying oil in bulk as cargo,” which means tankers. Other vessels, which nonchalantly pollute with their cleaning and deballasting operations, receive the legislative green light to continue. And second, the Convention covers only pollution by oil. [President Nixon said, on October 7, that he intends to send the next Congress a bill regulating all ocean dumping and banning the dumping of toxic wastes. Fines would run to $50,000 per violation. Antidumping laws are worthless if not enforced. Rep. Henry Reuss (D, Wise.) last week took the Administration to task for failing to prosecute 40 inland water mercury polluters.]

The Convention may not, as one ecologist quipped, deserve a quick burial at sea, but at best it should receive delayed consideration, especially in light of the fact that a new treaty is being drafted that will probably incorporate virtually absolute liability and an overall ceiling of $30 million. No doubt it will also include the progressive aspects of the proposed Convention: a strict system of financial responsibility, an extension of national jurisdiction to the high seas in cases of oil pollution damages, and a prohibition on ships of nonsignatory nations from trading in the ports of signatory nations. The Nixon Administration contends that it needs ratification of the first Convention to get the second, better one, but its logic on this point is not convincing.

The other Convention prepared at Brussels, on Intervention on the High Seas in Cases of Oil Pollution Casualties, is a rather innocuous agreement that permits signatory nations to “take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution…” This can be considered a codification of common law; England set the precedent by bombing the Torrey Canyon (albeit 10 days too late for the intended purpose of burning all the oil), although the wounded tanker was out of its territorial jurisdiction.

The principal amendment that has been proposed to the 1954 London Convention would slap a total prohibition on oil discharge on the high seas subject to certain specified—and suspiciously arbitrary—exceptions. A tanker, for instance, that is proceeding en route would have the license to release up to 60 litres of oily mixture per mile. The amount so discharged must be limited to 1/15,000 of the total cargo-carrying capacity and must not take place within 50 miles of land.

If the intent here is, as it should be, to cut down or eliminate the estimated three million tons of oil annually discharged by tankers into ocean waters, then legislating the right to discharge is not the way to do it. As a practical matter, tankers must discharge someplace, so it is about time that governments or oil companies were required to build on-shore facilities for that purpose. In any case, the Nixon Administration’s 23 claim that the 60 litres per mile introduces “a practical limit below which pollution has been shown in practical experiments to be neglibile” is astounding in light of statements by Dr. Blumer and other scientists that the federal government has not given them sufficient research funds to decide what the limits should be.

Another exception to the prohibition allows tankers to discharge ballast from a freshly cleaned cargo tank as long as the effluent leaves no visible traces of oil on the surface of the water. This is no innocent exception because, says Dr. Blumer, many of the toxic components of oil are invisible. The application of detergents to a spill makes all the oil invisible without necessarily affecting its toxicity.

The measures coming out of Brussels are, in short, too timid.

This article originally ran in the October 31, 1970 issue of the magazine.