CYIL vol. 11 (2020)

CYIL 11 (2020) STRICT LIABILITY AS A LEGAL PROTECTING MECHANISM … Convention (particularly on its certain provisions), efforts to completely eliminate a natural disaster of an exceptional character from the scope of liberation can be clearly identified, 27 which ultimately led to the Protocol revising the Vienna Convention removing the grave natural disaster of an exceptional character completely. Similarly, this liberation ground was also excluded by the Protocol of 2004 that revised the Paris Convention. The newly formulated and thus narrowed range of liberation grounds not only constricted liability in favor of the protection of harmed parties, but there also can be seen an added value in unifying national regulations since the original texts of the conventions left the possibility of exclusion of this liberation ground to the sole discretion of the Contracting States. In addition, this solution contributed to eliminate problems with interpretation associated with the interpretation of the vague legal concept of a “grave natural disaster of an exceptional character”. 28 3.3 (Contributory) fault of the harmed party The liberation ground regulated in Art. IV par. 2 of the Vienna Convention is drafted very specifically. This provision applies on cases where the nuclear damage was incurred wholly or partly due to either gross negligence of the person who suffered the damage or as a consequence of actions or omission of that person which he/she made with the intention to cause a damage. If the operator proves the fault of such person, the competent court may relieve the operator wholly or partly of the obligation to compensate the damage suffered by such person, provided that the law of the competent court ( lex fori ) states so. The Vienna Convention in this respect acknowledges legal relevance only to three grades of fault of the harmed person – gross negligence, direct intention and indirect intention. 29 The classification of intent as a certain knowledge of a wrongful result and a will to cause such a wrongful result by one’s own actions or as a knowledge that such an outcome may occur, combined with an understanding of the subject that it occurs, 30 does not cause significant problems for legal science or legal praxis. If the actor knew that he would cause damage or that he may cause the damage and wanted to cause it, i.e. if the intention is based on both the intellectual and the mental element, the fault of the harmed person has a character of a direct intention. If the intention of the harmed is based on the intellectual element – the actor knew that he could cause the damage and at the same time on an element of indirect will – he accepts that the damage may be caused, it has a character of an indirect intention. 27 Proposal for a removal of Art. IV par. 3 letter b) The Vienna Convention was presented at the first meeting of the Standing Committee, with broad support (see document SCNL / 1 / INF.4, p. 8). At the third meeting, the proposal was adopted by the Standing Committee (see document SCNL / 3 / INF.2 / Rev.1, Annex I, p. 4). At the fourteenth session, the proposal to exclude a natural disaster of an exceptional character from the scope of liberation was re-presented but did not receive the necessary support at that session (see document SCNL / 14 / INF.5, p. 27). 28 BLOBEL, Felix ‘Das Protokoll von 2004 zum Pariser Übereinkommen – wesentliche Verbesserungen im internationalen Atomhaftungsrecht.’ (2005) 3 Natur und Recht , 140. 29 Art. 4 par. 2 of the Vienna Convention does not distinguish between different degrees of intent, it only uses the term “intent”. It follows from the linguistic and systematic interpretation of that provision that both direct and indirect intent are relevant. 30 Compare with LUBY, Štefan Prevencia a zodpovednosť v občianskom práve. Časť I . [Prevention and responsibility in civil law. Part I.], (1958) Slovenská akadémia vied. 498.

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