CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ CHARTING A COURSE TOWARDS A UNIVERSAL REGIME OF LIABILITY FOR NUCLEAR… material into the world’s oceans. A release like this could poison waters in the vicinity of the incident, likely killing flora and fauna either immediately or over time. The radioactivity could also be carried in the ocean streams to other nations or their exclusive economic zones of activity or even their shores and ports. The effect of this transmission could result in loss of significant economic activity and exposure directly to the people of the effected nations. Further, if an incident occurred in a port or near shore the effect is exacerbated due to the proximity to economic activity and populous zones. That duty must be placed on the operator as the least cost avoider of the potential damage. Regardless of poor supplier quality or even negligence, external forces, or circumstances, the duty must lie with the operator due to the potential devasting results. Next, the Brussels Convention proposed a limitation of liability for the operators. This is also consistent with the principles of the land-based international conventions. However, the actual value imposed was much greater than the Paris Convention or Vienna Convention at the approximate equivalent of $100 million. 95 Liability of that magnitude was considered to be greater than available insurance in the market. 96 If the terms of the Brussels Convention were to be adopted today, the appropriate limit would need to be raised, but the provision is appropriate. A limitation of liability assigns a quantifiable risk to nuclear ship operators while maintaining a level of damages that is commensurate with the potential damages for public remedy. This provision, coupled with strict liability, places a significant duty of care and liability on the operators of nuclear ships in order to protect the public and environment. With the potential impacts so great and so wide, strict liability with a significant limit of liability is necessary. Alternatively, in theory, unlimited liability would create the harshest penalty to nuclear operators and allow for complete restitution to all parties. However, in practice, there must be a certain threshold so high as to act as unlimited. For example, if the limit of liability in the Brussels Convention already exceeded the available funds in the insurance market at the time, who is responsible to pay anything above the insured value? The operator is bankrupt, insurance market is depleted, and reinsurance is called, leaving the licensing government as the insurer of last resort. The economic impact could then be just as devasting. Additionally, would anyone bear the risk then of operating a nuclear ship? Maybe not, and maybe that is the intention of unlimited liability. It seems more advantageous for society to promote technological development, than to deter it. Therefore, from a social utility perspective, it is appropriate to impose a limit of liability on the nuclear operator commensurate with reasonable damages that can be expected from an incident balanced with the market capacity. Like the land-based conventions, the Brussels Convention also required the operators to carry insurance or equivalent security for the liability. 97 The licensing state would be liable for any balance to the limit, and in doing so, specified that the licensing state would set the level of insurance to be held. 98 As discussed in the limit of liability analysis, allowing the licensing nation to establish its appetite for the risk based on its ability and interest in the technology. A licensing nation could choose to require an operator to carry the full liability in insurance which may act as deterrent to its use, especially if that level of coverage is not available.

95 Handrlica, supra note 85, at 322. 96 Id. 97 Id. 98 Id.

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