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131
THE BRUSSELS CONVENTION ON THE LIABILITY OF OPERATORS OF NUCLEAR SHIPS
In connection with the rule of channeling, two questions were discussed in
contemporary literature, also having major importance for the most recent developments:
During the negotiating of the Convention the question was raised whether its
provisions should be understood as a bar to the responsibility of states which might
be incurred under the public international law to a licensing state which authorized
a nuclear-powered vessel without proper safety record. It is a matter of fact that the
states may be held liable in the event they themselves operate nuclear-powered ships.
At the Conference the French Delegation defended the opinion that the Convention
would be a bar against any additional state responsibility arising potentially from public
international law. On the contrary, the Delegation of the United Arab Republic
defended an opposite view
.
30
Other issues of the channeling principle were discussed during the negotiations
of the NS Convention. Contemporary literature pointed out
31
that some of the states
felt reluctant to exempt manufacturers from potential liability, mainly because they
held it to be socially undesirable. Some satisfaction had been created by permitting
a contractual preservation of the right of recourse.
Furthermore, absolute liability had been laid down as a principle common to all
nuclear liability treaties and to most of the legislation in this field. The Convention
also incorporated the principle for the area of liability for nuclear-powered vessels in
its Article II (1).
32
Operator’s absolute liability also relates to any material stolen or
lost, jettisoned or abandoned by him, or transferred to any person other than those
authorized by law and liable for nuclear damages.
With regard to the absolute liability of the operator, the Convention allowed
three narrow exceptions:
– pursuant to the Article II (3), the operator’s absolute liability does not extend to
damages by the vessel itself, by its equipment, fuel or stores
– pursuant to the Article II (5), the operator may be exonerated towards individuals
who have caused the damage by an act or omission
– pursuant to the Article VIII, nuclear damage caused by a nuclear incident “directly due
to an act of war, hostilities, civil war or insurrection” are not covered by the Convention.
Limitation and coverage of liability
Similar to earlier Conventions negotiated under the Diplomatic Conference
on Maritime Law
33
and to the Paris Convention, the Convention also provides for
in the event of a nuclear incident occurring subsequent to the date of such termination, prior to the expiry
of a period of twenty-five years after the date of such licensing or other authorization to operate such ship.”
30
Op. cit.
sub note 11, at p. 106.
31
Op. cit.
sub note 4, at p. 559.
32
“The operator of a nuclear ship shall be absolutely liable for any nuclear damage upon proof that such damage
has been caused by a nuclear incident involving the nuclear fuel of, or radioactive products or waste produced
in, such ship.”
33
E.g. the Brussels International Convention for the Unification of Certain Rules Relating to the
Limitation of the Liability of Owners of Sea-Going Vessels, of 25 August 1924 and the Brussels