This was an application by the International Oil Pollution Compensation Fund 1992 (the IOPC Fund 1992) for a declaration that the Registration Order (a Venezuelan court judgment which was registered as a judgment of the English High Court) does not apply to it, or alternatively for an order that the Registration Order be set aside on the basis that the IOPC Fund 1992 is immune from jurisdiction and enforcement pursuant to the 1992 Headquarters Agreement and/or by virtue of article 5 of the International Oil Pollution Compensation Fund 1992 (Immunities and Privileges) Order 1996 (the 1996 Order).

The IOPC Fund 1971

The IOPC Fund 1971 existed as part of a two-tier system: the primary liability of ship owners fell to be established under the International Convention on Civil Liability for Oil Pollution Damage 1969 (the 1969 Civil Liability Convention), and supplementary compensation was provided by the IOPC Fund 1971 pursuant to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 (the 1971 Fund Convention).

A convenient summary of this two tier system is set out in Gard v Oil Pollution Compensation Fund [2014] 2 Lloyds Rep 219 (see CMI71).

However, following the entry into force in 1996 of the modified version of the compensation regime, the number of state parties to the 1971 Fund Convention reduced progressively such that the 1971 Fund Convention ceased to be in force and have any binding effect from 24 May 2002 onwards. The IOPC Fund 1971 was subsequently dissolved and ceased to exist with effect from 31 Dec 2014.

The IOPC Fund 1992

Like the IOPC Fund 1971, the IOPC Fund 1992 also exists as part of a two-tier system, but not the same one as that with which the IOPC Fund 1971 was concerned: the primary liability of ship owners now falls to be established under the International Convention on Civil Liability for Oil Pollution Damage 1992 (the 1992 Civil Liability Convention) and supplementary compensation is provided by the IOPC Fund 1992, pursuant to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 (the 1992 Fund Convention).

The IOPC Fund 1971 and the IOPC Fund 1992 are accordingly separate legal entities, recognised as such by both international law (namely the 1971 Fund Convention and the 1992 Fund Convention) and under English law (namely the 1979 Order and the 1996 Order).

Immunity

In view of the fact that the IOPC Fund 1992 has its headquarters in London, the IOPC Fund 1992 entered into the HQ Agreement with the UK government. Amongst the matters agreed in the HQ Agreement is art 5 (Immunity) which provides:

‘Within the scope of its official activities the 1992 Fund shall have immunity from jurisdiction and execution except: …

… (b) in respect of actions brought against the 1992 Fund in accordance with the provision of the Convention.’

It was common ground between the parties that the only exception of any potential relevance in the present case was art 5.1.b of both the HQ Agreement and the 1996 Order (they have similar terms). Therefore, unless that exception applies, the IOPC Fund 1992 cannot be the subject of any adjudicatory or enforcement proceedings in the UK.

Facts

On 27 May 1997, 8,000 tons of polluted ballast water was accidentally discharged from the tanker Plate Princess before it was appreciated that there was a problem and loading and ballasting operations at Puerto Miranda were stopped. The local fishermen’s union, SUP, obtained judgment in Venezuela for the oil pollution compensation claims of its members (the ‘Venezuelan Judgment’). 

In May 1997, Venezuela was only party to the 1969 Civil Liability Convention and the 1971 Fund Convention.

Venezuela only became a party to the 1992 Civil Liability Convention and the 1992 Fund Convention on 22 July 1999. Given that Venezuela deposited the relevant instrument on 22 July 1998, one year later, 22 July 1999, is considered the relevant ‘date of entry into force’ as far as Venezuela is concerned.

Submissions

The IOPC Fund 1992 submitted that, given the date of the oil spill, only the IOPC Fund 1971 could find itself with any potential liability to the SUP.

Further, art 8 of the 1992 Fund Convention states that a judgment given against the Fund by a court having jurisdiction shall, when it has become enforceable in the State of origin, and is no longer subject to ordinary forms of review, be recognised and enforceable in each Contracting State.

The IOPC Fund 1992 submitted that art 8 had no application in the present case for the simple reason that the Venezuelan Judgment has nothing to do with the IOPC Fund 1992. 

In consequence, the IOPC Fund 1992 was immune, and the Registration Order ought not to be permitted to stand, certainly if and insofar as it related to the IOPC Fund 1992.

The SUP disagreed. It submitted that in respect of signatories to the 1992 Fund Protocol, the IOPC Fund 1971 has been replaced together with rights and liabilities by the IOPC Fund 1992. So, the SUP submits, the Venezuelan Judgment takes effect only as against the IOPC Fund 1992, and the IOPC Fund does not enjoy immunity.

In particular, the SUP sought to construct its argument as follows: by art 3 of the 1992 Fund Protocol (which came into being on 27 November 1992) the 1992 Fund Protocol amends the 1971 Fund Convention. Further, SUP considered the provisions in the 1992 Fund Protocol dealing with the so-called ‘transitional period’ which is defined as starting with ‘the date of entry into force of this convention’ and ending with the date on which the denunciations of the unamended 1971 Fund Convention take place (art 26 of the Protocol inserts the transitional provisions after art 36 of the 1971 Fund Convention), the SUP also sought to rely on art 27, which states ‘The 1971 Fund Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument’. Articles 31 and 34.6 of the Protocol were also relied on.

Held: The IOPC Fund 1992’s submissions would be preferred.

The SUP’s reliance on the 1992 Fund Protocol is misplaced. Contrary to the SUP’s submissions, the 1992 Fund Protocol has no application in the present case, which involves an oil spill which occurred in 1997, and so before Venezuela ratified, accepted, approved or acceded to the 1992 Fund Protocol.

It is not sufficient that Venezuela was a signatory to the 1992 Fund Protocol from the outset (27 Nov 1992) at the meeting of the conference at the IMO’s offices in London, since for the 1992 Fund Protocol to operate in this case, Venezuela needed not only to have been a signatory prior to the incident but by that stage also to have ratified, accepted, approved or acceded to the 1992 Fund Protocol. This is made clear by art 28 of the 1992 Fund Protocol.

Further, where art 36 bis.a of the Fund Convention 1971 refers to the transitional provisions as applying in ‘the transitional period, commencing with the date of entry into force of this Convention’, it is referring to the ‘date of entry into force’ insofar as the individual states are concerned. The relevant provision in this context is art 30, which explains that the protocol shall enter into force 12 months after various (accession requirements are fulfilled. The effect of art 30.3 is that the focus in on the individual state ratifying, approving or acceding to the 1992 Fund Protocol, and not the entry into force to which art 30.1 relates.

In summary, it was not open to the SUP to obtain an order registering the Venezuelan Judgment against the IOPC Fund 1992 for the simple fact that the Venezuelan Judgment is not a judgment against the IOPC Fund 1992. As far as the IOPC Fund 1992 is concerned, art 8 of the 1992 Fund Convention simply does not apply.

Further, even if the Venezuelan Judgment had been as against the IOPC Fund 1992 (which the court determined it was not), since it was not a judgment establishing liability on the part of the IOPC Fund 1992 under the 1992 Fund Convention, there is no relevant exception to the IOPC Fund 1992’s immunity under art 5 of the 1996 Order/art 5 of the HQ Agreement in that the exception in art 5.1.b is inapplicable. Therefore the IOPC Fund 1992 is immune in any event.

In the circumstances, the IOPC Fund 1992’s applications succeed. Given that the IOPC Fund 1971 no longer exists, the right course would be to set aside the Registration Order in its entirety.