CYIL vol. 11 (2020)

CYIL 11 (2020) STRICT LIABILITY AS A LEGAL PROTECTING MECHANISM … process of construction located in the concerned zone of the nuclear installation in question; nor does it address in relation to the liberation of the operator the status of property which is used in connection with another nuclear installation but is, however, placed in the concerned zone of the nuclear installation in question. The closed enumeration of the liberation grounds shows more to the operator’s obligation to compensate the nuclear damage which was caused on other nuclear installations and other property used or intended to be used in connection with another nuclear installation. The revised Vienna Convention of 1997 replaced the original text of Art. IV par. 5 by a new wording, pursuant to which the nuclear facility operator is not liable for nuclear damage caused to the nuclear installation itself as well as to any other nuclear installation including nuclear installations under construction placed in the zone of the nuclear installation itself. Nor shall the operator be liable for nuclear damage to property placed in the said zone which is used or is intended to be used in connection with any of the listed facilities. The revised wording thus eliminated all the ambiguities and doubts of the interpretation as to the scope of this liberation ground. Similar as in the case of the so-called “ on-site ” property, the operator shall not be liable for nuclear damage caused to the vehicle used for transportation of the nuclear material at the time of the nuclear incident. The purpose of both of these restrictions was the effort of the legislator to avoid situations in which the financial security of the operator’s liability would be used for damage compensation caused to “ on-site ” property or on vehicles used for transportation of the nuclear material. This should avoid the situation in which the claims of third parties would be disadvantaged due to the limitation of the operator’s liability. The Vienna Convention in Art. IV par. 6 enables a possibility of contracting states (Slovak Republic did not use this possibility) to establish in its national regulation the operator’s obligation to compensate a damage caused to a vehicle used for transport of the nuclear material at the time of the nuclear incident, provided that the operator’s liability for nuclear damage other than the one caused to the vehicle will not be reduced below the minimum limit of liability established by the Vienna Convention. In practice this means that if the nuclear damage different from the damage to the vehicle is below the amount of 5 mil. gold dollars, the balance of funds not used to compensate for nuclear damage other than damage to a vehicle may be used to compensate the damage to the vehicle. However, it is not permitted to apply this construction to the legal regime of “on-site” property; the damage caused to it as a result of a nuclear event cannot be compensated due to the mandatory liberation of the nuclear facility operator. 3.5 Is it possible to consider a circumstance which does not originate in the operation and which could not have been avoided despite all efforts as a liberation ground in nuclear liability legislation in the Slovak legal system? In the system of Slovak tort law, liability for nuclear damage is systematically integrated as a special subtype of liability for damage caused by particularly dangerous operations. 32

32 See KOSNÁČOVÁ, Marianna ‘Zodpovednosť za škodu spôsobenú zvlášť nebezpečnou prevádzkou.’ in: Ján LAZAR et al. Občianske právo hmotné [Liability for damage caused by particularly dangerous operation], (3 rd edn, Iura Edition 2006) vol 2, 337 ff.

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