Second Half Year Report Offshore Activities IWG 2023
Dr. Brandani is working on his version of the pending chapters of the OGA Convention in the version which protects the environment, which I will send to all the Members of our International Working Group in due course.
However, I thought that before doing so we have to insist on the definition of “craft” and the scope of application of the Convention, which are two issues of great importance, and that is why I wrote to the Members as follows on November 6th, 2023.
a) Definition of “craft”
Mans and Andrew suggested consulting a colleague acting for the Offshore industry about the definition of craft in the OGA Convention.
As in the IWG we have the colleague Clifton Hall III, who meets the requested requirement and has recently intervened in the BETA case in the Southwest of the USA, I have discussed the issue with him.
From the beginning, his position was to adopt the principles of the Oil Pollution Act, despite its much wider scope.
“My reference point for definition of craft would be the Oil Pollution Act which covers both vessels and facilities, like oil and gas platforms or rigs”.
This issue took a considerable time taking into account that Clifton was very busy and the holiday season in the Northern Hemisphere. We exchanged a number of e-mails and as a consequence of which I have reformulated the definition of craft accepted by the majority of our IWG adding onshore facilities, as in the OPA Act, as follows,
“Craft” means any waterborne craft or man-made structure, equipment or installation –such as terminals of any type whatsoever constructed or adapted for any offshore activities regardless of whether it is engaged in such activities and includes all types of MODUs (Mobile Offshore Drilling Units), offshore rigs, whether fixed or mobile and storage units for oil or gas. These crafts include the whole group of vessels and devices used, such as those that place underwater pipelines, Floating Drilling Production Storage and Offloading unit (FDPSO), Floating Production Storage and Offloading unit (FPSO), Floating Storage and Offloading unit (FSO) or Floating Storage Unit (FSU) whether purpose-built, or converted or adapted from seagoing vessels constructed for the carriage of oil. This term also includes any motor vehicle, rolling stock, land deposit or pipeline related to offshore exploitation.”
I think it is a broad and at the same time detailed definition that will help avoid interpretive doubts.
Mans and Andrew initially proposed that the concept should include seagoing vessels, which we have convinced them to drop. Therefore, their definition is now very concise.
“Craft” means any waterborne craft or man-made structure or equipment of any type whatsoever constructed or adapted for any offshore activities regardless of whether it is engaged in such activities.”
My fear is that given such a brief definition, in the event of an accident, a discussion will be promoted about whether the misfortune was caused by a craft or not.
In addition, the mention that the crafts may not be used in an Offshore operation seems confusing to me. A clarification could be useful.
On November 21, 2023, Mans answered to both questions,
“Question 1: We note that your draft is detailed and would seem to cover all reasonable offshore activities. Our concern is that the text is based on OPA-90 which, as we know, does not aim primarily to cover offshore activties. It is also sometimes dangerous to base a definition in an international convention on a definition taken from a particular domestic legislation. It is for this reason we suggested a more succinct definition based on the purpose of the craft, making it clear that that craft would still be within the definition if not at the offshore site. We still favour a succinct definition but, if it is the wish of the other members of the IWG to follow your suggested draft, we are content for it to be included in the draft convention for further discussion and possible improvement”.
It is a constructive answer, and we wait to hear the opinion of the Members of the International Working Group.
b) Scope of application of the OGA Convention
I note that the word “transboundary” was repeatedly deleted in the proposed Convention by Mans and Andrew.
Additionally, in his detailed observations of February 2022 to the OGA Convention, Mans stated,
“Under art. II the OGA Convention would not apply to damage in the State authorizing the activities resulting in the pollution damage (using a simple expression for the scope of application) but only to damage in other States (expressed in a simple manner).
This limitation of the scope of application would, as I see it, lead to some odd results. It would mean, for instance, that the limitation amount under the OGA Convention (and the related compulsory insurance) could not be used for compensating damage caused in the authorizing State (cf. art. VII.9). Furthermore, the channeling provisions in art. III.4 would not apply to damage in the authorizing State.”
My question to Mans and Andrew is in their version of the OGA Convention is it will also apply in the State authorizing the Offshore Activities.
I consider that the clarification of this issue is of great importance for the analysis of the two proposed alternatives.
“Question 2: We have accepted the concept that the OGA Convention should only apply to damage caused outside the territorial sea of the State authorising the polluting activity (cf the Nairobi Wreck Removal Convention). Our comments were only intended to illustrate some of the consequences of that scope of application. Please note that we insisted on the deletioin of the word transboundary for a different reason, namely that the geograpical scope of application should be resolved in a general provision, and only once.
Consequently, we must conclude that we all agree that the OGA Convention applies only to transboundary pollution and that the dissent is limited to the drafting technique of the instrument.
Jorge M. Radovich
Chair of the CMI IWG
on Offshore Activities