Wildlife response compensation

 

Oil spills can result in the contamination of birds and, to a lesser extent, mammals and reptiles. Efforts made to capture, clean and rehabilitate oil-affected animals are activities for which compensation can be claimed.  In addition, in cases where large numbers of animals have been impacted and it is deemed likely that populations may have been affected, it may be appropriate to conduct post-spill studies to establish the nature and extent of the damage and, if necessary, to carry out restorative measures, which may also be compensated.

Wildlife responders involved in oil spills are advised to contact the relevant Protection and Indemnity (P&I) Club, the IOPC Fund and the International Tanker Owners Pollution Federation (ITOPF) at the earliest possible stage of the response. If the spill originates from a tanker, this will enhance the probability that a future claim will be successful. For non-tanker spills, the instruments are less developed, although an attempt to submit a claim is still worthwhile.

In the case of spills falling under the criteria of the CLC 92 and Fund 92 Conventions, compensation may be available for both types of wildlife response activity. The IOPC Fund Claims Manual provides detailed information regarding the scope of the International Compensation Conventions in relation to such work and also provides guidelines for claimants on the preparation of claims.

Wildlife claims fall under two categories in the Claims Manual:

  •     Clean up and pollution prevention measures
  •     Environmental damage and post-spill studies

Clean up and pollution prevention measures

Oiled wildlife response activities fall into this category, which also applies to other aspects of oil spill response such as at-sea response and shoreline clean up. The Claims Manual states that “Compensation is payable for reasonable costs associated with the capture, cleaning and rehabilitation of wildlife, in particular birds, mammals and reptiles.”

However, it is important to consider that the manual also stipulates that response activities:

(a) must be feasible and safe;

(b) should provide a reasonable chance for survival of treated casualties;

(c) should be scaled in proportion with the impact;

(d) must not be purely for PR purposes.

Cleaning is slow, difficult and causes further distress to the rescued animals. It should, therefore, only be undertaken if there is a reasonable chance of the animals surviving the process. Claims for reasonable costs associated with providing local facilities appropriate to the scale of the problem, materials, medication and food are normally compensable, as are reasonable food and accommodation costs for volunteers.

If several wildlife groups undertake cleaning and rehabilitation activities these should be properly co-ordinated to avoid duplication of effort. It is also worth noting that deductions will be made for funds raised from the public for the specific purpose of maintaining field operations for a specific incident.

Environmental damage and post-spill studies

The Claims Manual places post-spill wildlife studies and restorative actions (e.g. protection of breeding sites or control of egg and chick predators) within this category and states that “Contributions may be made to the costs of post-spill studies “to establish the nature and extent of environmental damage” and that “Compensation is payable for the costs of reasonable reinstatement measures aimed at accelerating natural recovery of environmental damage”.

Post Spill Studies

Studies are sometimes required to establish the nature and extent of environmental damage caused by an oil spill and to determine whether or not reinstatement measures are necessary and feasible. Such studies will not be necessary after all spills and will normally be most appropriate in the case of major incidents where there is evidence of significant environmental impact.

The Fund may contribute to the cost of such studies provided that they concern damage that falls within the definition of pollution damage in the Conventions, which includes reasonable measures to reinstate a damaged environment. In order to qualify for compensation it is essential that any such post-spill studies are likely to provide reliable and usable information. Studies not meeting these criteria are unlikely to be funded.

For this reason the studies must be carried out with professionalism, scientific rigor, objectivity and balance. This is most likely to be achieved if a committee or other mechanism is established within the affected Member State to design and co-ordinate any such studies, as well as any resulting reinstatement measures.

The scale of the studies should be in proportion to the type and extent of the contamination and predictable effects from that contamination. A post-spill study demonstrating that no significant long-term environmental damage have occurred or that no reinstatement measures are necessary would necessarily be excluded from compensation for the costs of the study.

The Fund should be invited at an early stage to participate in the determination of whether or not a particular incident should be subject to a post-spill environmental study. If it is agreed that such a study is justified, the Fund should then be given the opportunity of becoming involved in planning and establishing the terms of reference for the study.

In this context the Fund can play an important role in helping to ensure that any post-spill environmental study does not unnecessarily repeat what has been done elsewhere. The Fund can also assist in ensuring that appropriate techniques and experts are employed.

It is essential that progress of any studies undertaken is monitored, and that the results are clearly and impartially documented. This is not only important for the particular incident but also for the compilation of relevant data by the Fund for future cases.
It is also important to emphasise that the participation of the Fund in the planning of environmental studies does not necessarily mean that any measures of reinstatement later proposed or undertaken will qualify for compensation.

Environmental  damage mitigation

With regard to restoration measures, the Claims Manual points out that such activities should seek to enhance natural recovery and/or prevent further injury and pollution damage. It is also worth noting that, unlike the US legislation under the Oil Pollution Act of 1990 (OPA 90), claims for environmental resources which are not commercially exploited and hence have no true monetary value, are not admissible. Thus environmental damage claims based on theoretical models are rejected whilst costs for reasonable reinstatement of the environment after a spill are considered.  Compensation paid for damages of a punitive nature on the basis of the degree of fault of the wrong-doer are not considered.

The justification for wildlife response measures depends on the nature and scale of the damages resulting from the spill and it is necessary to assess each case separately to judge the merits of such activities. For this reason it is highly beneficial to invite the relevant P&I Club and/or IOPC Fund to participate from an early stage.

Typically ITOPF will have one or more of their Technical Team on site in the initial stages of the response to advise all involved parties on response measures, impacts of the spill and compensation. ITOPF’s role as the primary source of technical advice for the shipping industry, their P&I insurers and the IOPC Funds means that they are in an ideal position to advise wildlife responders and scientists of the likely merits of proposed activities. It is prudent to make contact with the on-site adviser or the technical team at their London office before engaging in a response or conducting studies.

It is also important to consider that the scope of compensation as laid out in the Claims Manual only refers to spills which are covered by the CLC 92 and Fund 92 Conventions. Compensation for pollution damages resulting from other types of spill (e.g. spills from pipelines or offshore facilities) are currently not governed by international legislation and the admissibility of claims for wildlife response activities will depend on the nature of the incident.

Under the 1992 Conventions, compensation for impairment of (damage to) the environment is limited to loss of profit from such impairment and costs of reasonable measures of reinstatement actually undertaken or to be undertaken. Whilst there are limits to what measures can be taken to improve on natural processes, in some circumstances it is possible to enhance the speed of natural recovery after an oil spill through reasonable reinstatement measures. The costs of such measures will be accepted for compensation under certain conditions.

In view of the fact that it is virtually impossible to bring a damaged site back to the same ecological state that would have existed had the oil spill not occurred, the aim of any reasonable measures of reinstatement should be to re-establish a biological community in which the organisms characteristic of that community at the time of the incident are present and are functioning normally.

Reinstatement measures taken at some distance from, but still within the general vicinity of, the damaged area may be acceptable, so long as it can be demonstrated that they would actually enhance the recovery of the damaged components of the environment. This link between the measures and the damaged components is essential for consistency with the definition of pollution damage in the 1992 Conventions.

Moreover, claims for the costs of measures of reinstatement of the environment will qualify for compensation only if the following criteria are fulfilled:

  • The measures should be likely to accelerate significantly the natural process of recovery.
  • The measures should seek to prevent further damage as a result of the incident.
  • The measures should, as far as possible, not result in the degradation of other habitats or in adverse consequences for other natural or economic resources.
  • The measures should be technically feasible.
  • The costs of the measures should not be out of proportion to the extent and duration of the damage and the benefits likely to be achieved.

Claims are assessed on the basis of the information available when the reinstatement measures were undertaken. Compensation is paid only for reasonable measures of reinstatement actually undertaken or to be undertaken. Claims for economic loss as a result of environmental damage that can be quantified in monetary terms are assessed in a similar way to other economic loss claims.

For more information on the admissibility of claims for wildlife response activities under the CLC 92 and Fund 92 Conventions please read the IOPC Claims Information Pack which may be downloaded from the website on the publications page.