CYIL Vol. 5, 2014

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,

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