Practical guide: liability for marine pollution
A marine pollution incident always involves several liable parties at once (registered owner, technical manager, charterer, shipper, bunker supplier), each falling under a distinct regime: channelled strict liability for some, fault-based liability for others, an autonomous criminal offence for others still. In 2024-2026, one supreme court set aside limitation of liability for any oil pollution in its waters, and a shipowner whose fund was capped at 43.7 million dollars settled for more than two billion. Here are the six points that determine the real exposure of each actor in the maritime chain.
1. The registered owner is strictly liable, but the manager is no longer shielded
Article III(1) of the 1992 CLC makes the owner registered in the ship’s register liable for any pollution damage caused by the ship, without any fault having to be proven: this is channelling. The technical manager is in principle protected by Article III(4), which bars any action against the servants and agents of the owner, save for a personal act committed with intent to cause the damage or recklessly. But that protection gives way before two realities: the 2001 Bunkers Convention, applicable to the vast majority of pollution caused by ships other than laden tankers, defines the “shipowner” as including the bareboat charterer, the manager and the operator, all jointly and severally strictly liable; and French criminal law knows no channelling, since Article L. 218-18 of the Environmental Code targets any person exercising, in law or in fact, a power of control or direction over the management of the ship. The US federal indictment of 12 May 2026 in the Dali case names two companies of the managing group and an individual superintendent.
2. The time charterer bears a growing risk, and vetting has become a document in the file
The time charterer does not control the nautical management, but chooses routes, ports and speed: it benefits from CLC channelling and from the right to limit, but bears a growing share of regulatory risk, notably the pass-through of the cost of emission allowances under the EU Emissions Trading System. The exposure of the voyage charterer and seller of the cargo was profoundly altered by the Court of Justice, which held in the Grand Chamber judgment Commune de Mesquer v Total France SA of 24 June 2008 (C-188/07) that accidentally spilled hydrocarbons constitute waste, the disposal costs of which may be charged to the producer of the product that generated them if it contributed to the risk, in particular by failing to check the ship. The French Criminal Chamber drew the consequences in the Erika judgment of 25 September 2012 (no. 10-82.938): Total SA was fined 375,000 euros, the benefit of channelling immunity being set aside on account of the imprudence of its vetting department in accepting the ship. A properly run vetting process is a shield; a formal vetting process, contradicted by actual acceptances, is evidence for the prosecution.
3. The CLC-IOPC Fund system compensates quickly, but only for oil in bulk
The CLC-IOPC Fund regime covers only ships actually carrying persistent oil in bulk as cargo: a container ship or bulk carrier which spills its bunkers falls under the Bunkers Convention, not the CLC. The three-tier architecture caps compensation at 89,770,000 SDR for the owner (1992 CLC, Article V), 203,000,000 SDR including the CLC amounts for the 1992 Fund, and 750,000,000 SDR for the Supplementary Fund created by the 2003 Protocol. The shipper, not targeted by these liability conventions, is nevertheless exposed through three channels: the statutory guarantee in Article IV(6) of the Hague-Visby Rules for the shipment of dangerous goods without the carrier’s knowledge; the financing of the Fund, owed by any receiver of more than 150,000 tonnes of oil per year; and the duty of vigilance under Law no. 2017-399 of 27 March 2017 for the chartering of a ship without valid P&I cover.
4. The European enforcement shift of 2024 changes the scale of the risk
Directive (EU) 2024/3101, to be transposed by 6 July 2027, strips the punishment of discharges of its historical criminal dimension and turns it into a strict administrative sanction aimed specifically at the company: the fault standard (intentional, reckless or grossly negligent, validated by the Court of Justice in the Intertanko judgment of 3 June 2008, C-308/06) disappears from the mechanism, a discharge not compliant with MARPOL becoming a strict liability offence. Directive (EU) 2024/1203 raises the criminal fines faced by legal persons to at least 5% of total worldwide turnover or 40 million euros for discharges from ships, against a current ceiling of 75 million euros under French law, a considerable gap for a shipping group of global scale. The transposition deadline expired on 21 May 2026; France has not met it. The coexistence of an administrative fine and a criminal fine for the same facts squarely raises the ne bis in idem principle under Article 50 of the Charter of Fundamental Rights, a line of defence to be prepared now.
5. Limitation of liability is no longer a given
The 1976 LLMC, as amended by the 1996 Protocol, remains the general limitation regime, but its foundation has been weakened by three recent developments: the Supreme Court of Mauritius has, since February 2026, set aside limitation for any oil pollution in its waters; the Kerala High Court refused, on 26 September 2025, a P&I club letter of undertaking as security after the sinking of the MSC Elsa 3 and ordered the arrest of a sister ship; and in the Dali case, although a federal judge had admitted the owners to the benefit of the Limitation of Liability Act for a fund of roughly 43.7 million dollars, the operators settled on 12 May 2026 with the State of Maryland for approximately 2.25 billion dollars. Loss of the right to limit requires a personal act committed with intent to cause the damage or recklessly, a severe standard whose first successful breach in the United Kingdom dates from the Atlantik Confidence case ([2016] EWHC 2412 (Admlty)), where the ship had been deliberately scuttled. The choice of forum and the speed with which the fund is constituted have become first-order strategic decisions, to be taken in the first days after the event.
6. Direct action against the insurer depends entirely on the legal basis relied upon
Where a convention makes insurance compulsory (CLC, Bunkers, Nairobi, Athens), the direct action is conventional and powerful: Article VII(8) of the CLC allows the insurer to raise only the statutory cap, the owner’s defences other than bankruptcy, and the owner’s wilful misconduct; no defence drawn from the insurance contract may be raised. Elsewhere, the direct action reverts to national law and runs into the “pay to be paid” rule, upheld in English law and confirmed on 11 September 2024 in MS Amlin Marine NV v King Trader Ltd ([2024] EWHC 1813 (Comm)). The Prestige case illustrates the conflict: after the Spanish Tribunal Supremo condemned the club to the tune of one billion dollars, the Court of Justice held on 20 June 2022 (C-700/20) that the unenforceability of the arbitration clause against the third party bringing the direct action prevailed; the Court of Appeal nevertheless refused, on 12 December 2024, registration of the Spanish judgment on grounds of English public policy. A further point of vigilance for legal departments: FuelEU Maritime penalties and the consequences of a failure to surrender allowances fall within no category covered as of right by P&I clubs; this is a contractual risk, to be handled in the charterparty, not an insurable one.
The full guide, with the first-hours methodology
The firm has prepared a 27-page practical guide setting out the full map of the actors and their exposure, the summary table of administrative, civil and criminal sanctions, the technological shift in evidence (satellite imagery, AIS correlation, drift models) and the emergency methodology to follow in the first hours after a pollution event. It is available free of charge in exchange for a professional email address:
Download the “Marine Pollution Liability” guide
For assistance with maritime litigation or a maritime transaction, see our maritime law page and, on this specific topic, our page on marine insurance.
On the same guide, from the criminal side: Marine pollution: the six points that decide who is prosecuted and what is at stake.
On this specific point, see our marine pollution lawyer page.