This is an appeal from The 'Bow Jubail', Rechtbank Rotterdam, 9 November 2018 (CMI547).

This case arose from an allision between the Bow Jubail, owned by National Chemical Carriers Ltd (NCC), with a jetty of LBC Tank Terminals in the Derde Petroleumhaven in Rotterdam on 23 June 2018, as a result of which fuel oil flowed into the port and caused damage. NCC claimed that there had been an 'incident' as referred to in art 1.8 of the International Convention on Civil Liability for Bunker Oil Polluting Damage 2001 (the Bunker Convention) and submitted an application to limit its liability on the basis of a property fund in accordance with the LLMC 1996. The Rechtbank Rotterdam dismissed the application.

Held: Appeal dismissed.

The Bunker Convention does not apply to pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage 1992 (the CLC 1992). Both the CLC 1992 and the Bunker Convention could apply to a pollution resulting from the escape or discharge of bunker oil. It is not the nature of the pollutant - bunker oil - that determines which of these Conventions is applicable. The applicability depends on whether the ship from which the polluting bunker oil escaped is a ship within the meaning of the CLC 1992. The CLC 1992 also applies to unladen oil tankers and so-called combination ships, which by their construction can be used both for the carriage of persistent oil in bulk and other cargos. However, the application of the CLC 1992 to these combination ships is limited to voyages during which they actually carry hydrocarbon mineral oil in bulk as cargo and during any voyage following such carriage, unless the owners prove that they have no residues of such carriage of persistent oil in bulk aboard during the voyage in question. The Fund Convention 1992 and the Supplementary Fund Protocol apply the same concept of 'ship' and 'oil' as the CLC 1992.

Because the oil/chemical tanker Bow Jubail carried persistent oils in bulk as cargo prior to the incident, it is a ship within the meaning of art 1.1 of the CLC 1992, unless the aforementioned exception applies, ie if residues of those oils previously carried are absent. Within the context of the present application for limitation, and in light of the intended legal effect, namely a limitation via the Bunker Convention, the burden of proof lies with NCC, as owner of the Bow Jubail, to state the facts and (in case of sufficient opposition by another party) to prove that the ship was clean, ie that it had no residues of persistent oil in bulk aboard, in order to trigger the application of the Bunker Convention because the conditions of the proviso are met.

Regarding the notion of residue, it can be assumed - in accordance with common parlance - that this refers to what remains after the discharge of persistent oil carried in bulk as cargo. This includes solidified residues which cannot be pumped, or cargo which is caked/stuck to the walls of a tank in which it has been carried, but also includes, for example, wash water/cleaning agent in which remaining oil residues have been mixed, for which mixture the term 'slops' is commonly used. It would go too far to require positive proof of the total absence of any trace of previous carriage of persistent oil. Regarding a combination (tanker) ship that once carried persistent oil, this would mean that in practice it would be hardly ever possible to invoke the proviso, which would thus become a dead letter. Nor does the Convention offer sufficient support for the view that the concept of 'residue' should be read as 'traces of residues'. In order to successfully rely on the proviso it is necessary, but also sufficient, that it has been substantiated, and - in case of sufficient opposition by another party - it has been proved, or made sufficiently plausible, that at the time of the incident either: (i) no residues were present at all; or (ii) at most, a negligible quantity.

Regarding the evidence, there is internationally no generally accepted standard procedure on the basis of which it can be determined when a ship - which can serve both as an oil tanker within the meaning of the CLC 1992 and as a chemical tanker within the meaning of the Bunker Convention - ceases to be a CLC ship. However, in principle it is not sufficient for the shipowner or the crew themselves to declare that the ship is 'clean'. Preferably this should be: (i) declared/confirmed by an independent expert; or (ii) in any case established on the basis of contradictory expertise, as a result of the opportunity that party experts on both sides have had to board the ship as soon as possible after the incident, in order to be able to observe whether relevant cargo residue is still present. It would therefore have made sense for NCC, immediately after the incident, to have applied to the Court for the appointment of a maritime surveyor, or at least to have organised a contradictory survey. However, NCC only brought its own surveyor on board and ignored the repeated request of another surveyor, acting on behalf of an injured party, for permission to observe. The report of its own surveyor does not convincingly substantiate that the Bow Jubail was free of residues of previously carried persistent oil in bulk as cargo. The same applies to the statements of the crew members, relied on by NCC. This lack of persuasiveness is primarily related to the lack of confirmation by an independent surveyor, or at least the lack of a contradictory survey, but also, for example, to the changing position regarding the substance (more than 138 m³) in cargo tank 14C.

NCC's statement that all tanks in which persistent oils were carried underwent extensive washing programmes, and that the tanks - and thus the ship - were cleaned in accordance with the rules of the MARPOL Convention, also lacks sufficient substantiation.

It is noted that there is no generally accepted standard procedure on the basis of which it can be determined when a ship - which can serve both as an oil tanker within the meaning of the CLC 1992 and as a (non-CLC 1992) chemical tanker within the meaning of the Bunker Convention - ceases to be a CLC ship. It is therefore desirable that consideration should be given by the parties involved with the Oil Pollution Compensation (IOPC) Funds to the drafting of such a standard procedure, which could then be followed with a view to invoking the proviso. Both shipowners and their P&I clubs, as well as the IOPC Funds and those who contribute to them, have an interest in such a procedure.

[For subsequent proceedings in this matter, see CMI2262 and CMI2263.]