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JAKUB HANDRLICA
CYIL 5 ȍ2014Ȏ
Exclusive ad absolute liability of the operator
Similar to the Paris Convention and the Vienna Convention, the Convention
also established in Article II (2) that
“except as otherwise provided in this Convention,
no person other than the operator shall be liable for such nuclear damage.”
Concerning
the very key term of “operator”, the Convention defined it in Article I (4) as
“the
person authorized by the licensing State to operate a nuclear ship, or where a Contracting
State operates a nuclear ship, that State.”
The reasons and implications of the channeling principle are widely known, so
only a brief comment will be made concerning these issues. The Brussels Diplomatic
Conference wanted to avoid a situation where third parties and, in particular, the
owners of conventional ships (as well as suppliers of nuclear equipment) would be
required to maintain insurance coverage with regard to their potential nuclear liability
in cases of collision, or in the event that a nuclear incident could be attributed to
defective equipment. The exoneration of non-operators from liability for nuclear
damage applies even when damage is caused to the nuclear-powered ship itself.
27
Taking
into account the financial strength of the nuclear equipment industry, the temptation
to establish claims against major suppliers had been considered very high at the time
the Convention was adopted.
28
Even if fault or negligence could be proved, no actions
would prevail against suppliers of equipment of services to nuclear-powered ships,
except within the narrow limits of recourse actions laid down in the Convention,
Article II (6):
– if the nuclear incident results from a personal act or omission done with intent to
cause damage, in which event recourse shall lie against the individual who has acted,
or omitted to act, with such intent,
– if the nuclear incident occurred as a consequence of any wreck-raising operation,
against the person or persons who carried out such operation without the authority
of the operator, or persons who carried out such operation without the authority of
the operator or of the State having licensed the sunken ship or of the State in whose
waters the wreck is situated,
– if recourse is expressly provided for by contract.
Furthermore, one additional provision was incorporated into the Convention in
order to mitigate risks arising for manufacturers from possible future liability claims.
This provision was laid down in the Convention, Article XIX and ensures that the
provisions of the treaty will continue to apply to any nuclear-powered ship licensed
for operation by any state while still a contracting party to this treaty, with respect to
any nuclear incident occurring no later than twenty five years after such licensing.
29
27
Op. cit.
sub note 2, at p. 12.
28
Op. cit.
sub note 11, at p. 105.
29
“Notwithstanding the termination of this Convention or the termination of its application to any Contracting
State pursuant to Article XXVII, the provisions of the Convention shall continue to apply with respect to any
nuclear damage caused by a nuclear incident involving the nuclear fuel of, or radioactive products or waste
produced in, a nuclear ship licensed or otherwise authorized for operation by any Contracting State prior to
the date of such termination, provided the nuclear incident occurred prior to the date of such termination or,