The oil—gushing like blood from a wound, to befoul British beaches—has gone; but the stain cannot be erased until modern law catches up to modern, monster tankers.
On 18 March 1967, the supertanker Torrey Canyon ran hard aground on the Seven Stones Reef, some 15 miles off Land's End. Seven Stones is an infamous hazard to navigation; its evil reputation is recorded on charts dating back four centuries to the days of Spanish Armada.
The stranded giant, at first glance, appeared to be a relatively uncomplicated client for the salvage and insurance companies. But the Torrey Canyon would not long languish in anonymity; for she carried not only 118,000 tons of crude oil, but also within her, the seeds of international discord. And, although she died during her trial, she is a lively corpse. Indeed, her case may present the greatest opportunity for action by international and maritime lawyers in this century. Some lawyers foresee 20 years of litigation and several significant decisions before the Torrey Canyon Case is laid to rest.
The Torrey Canyon was one of the ten largest tankers in the world, displacing over 118,000 tons. She had been purchased by the Barracuda Tanker Corporation, a Liberian-based subsidiary of Union Oil of California.
Flying the Liberian flag, manned by an all-Italian crew, the Torrey Canyon was under charter to the British Petroleum Corporation, 52 per cent of whose stock is held by the British Crown. Her insurance was carried by American and British companies, of which 40 per cent was held in England. The total insured value of ship and cargo was $16.5 million-5 million more than the ill-fated Andrea Doria—thus making the Torrey Canyon the most expensive single wreck in history.
Seven Stones Reef is located between the Scilly Isles and the mainland of Great Britain. It is marked by 11 navigational lights and a lightship, all operated under royal charter by the Masters of Trinity House, a salvage-insurance organization. Legally, the reef and the wreck lie in international waters. On previous voyages, the Torrey Canyon and other tankers had passed through this area rather than lengthen the voyage by going around the Scillies. This practice, however, had been frowned on by the British Admiralty and had been discouraged by the municipal legislative action of Parliament in relation to British-registered vessels by the Oil in Navigable Waters Act of 1955 (3 & 4 Eliz. II, ch. 25). Another chapter of this Act, passed pursuant to British adherence to the 1954 International Convention for the Prevention of Pollution of the Sea by Oil, established a "prohibited zone" around the British Isles recommended by the Convention. The "prohibited zone" that includes Seven Stones is bounded by 400 w, the English Channel, and a line from a point on the Greenwich meridian 100 miles NNE of the Shetland Islands west to 40° W.
On the morning of 18 March 1967, at high tide, the Torrey Canyon was passing through a calm, sunlit sea. The 974-foot ship was sighted by the Seven Stones lightship which promptly began to warn the Torrey Canyon away from her collision course with the reef by means of flares, flags, and rocket signals. The tanker failed to notice, however, and shortly thereafter hit the reef with force sufficient to tear a gash in her hull approximately 500 feet in length. The reef had ripped into her bunkers, and a vast oil slick soon appeared in the sea around the ship. The slick was spreading hourly and was carried by the currents toward the coast of Cornwall, a British resort area noted for its excellent beaches. Tourism, however, was not the only industry that was threatened.
Efforts were initiated by a Dutch salvage crew in an attempt to recover at least part of the Torrey Canyon's cargo of crude oil. Unfortunately, the Dutch salvage master was killed on 21 March, in an explosion on board, halting for three days the effort to refloat her. A proposal to transfer the cargo to other tankers was ruled out by the Admiralty as too dangerous. The Torrey Canyon was a floating bomb. The leaking continued, however, and the Cornish beaches were polluted, fish in the area were killed, and sea life of all kinds was destroyed. The resort owners, faced with massive cancellations for the summer season, demanded action from the British Government. The Royal Army, Navy, and Air Force had been mobilized earlier, but their efforts were now doubled and reinforced by the application of tons of strong chemical detergents designed to break up the oil slick.
A week's efforts were to little avail. Prime Minister Harold Wilson ordered the Royal Air Force, in conjunction with the Royal Navy, to bomb and destroy the Torrey Canyon. This decision was precipitated by the break-up of the giant ship into three sections on the reef due to a combination of wave action and the effects of the explosion. On 28 March, the order was carried out with no reference to the shipowners or salvage experts. "We did not ask the owners [Union Oil] about our decision to bomb," said Home Secretary Jenkins, "We told them." In the course of the bombing, some 23,000 pounds of high explosives and 5,000 gallons of aviation fuel were dumped on the Torrey Canyon in an effort to destroy the ship and set the oil slick afire. The fire went out. The ship was bombed again, with the same result. The bombings were halted on 1 April, following reports from the Admiralty that the slick was thinning and that there was no more oil to be seen leaking from the hull.
The Torrey Canyon and her cargo were thus transformed from a 16.5-million-dollar asset into a total loss, a blackened hulk atop a reef. The tanker had succeeded in polluting some 350 square miles of sea, covering a 120-mile strip of beach with black ooze, killing unnumbered sea animals and birds, and costing the British Government nearly a million pounds to destroy her.
Hardly had the Torrey Canyon cooled from the fire and bombs than Union Oil declared its intention to sue the British Government for piracy in that England had destroyed the tanker without the owner's permission. This, as well as the other possible lawsuits, involves several fundamental doctrines of international law, the first of which is sovereign immunity, namely that a state is, by its nature as a sovereign, immune from prosecution for damages arising from the exercise of its sovereignty. "Sovereignty" here is taken to mean "an aggregate of particular and very extensive claims that states habitually make for themselves."
The most fundamental sovereign right is that of self-defense, the right invoked by Prime Minister Wilson when he ordered that the tanker be bombed. In international law, however, the right to interdict the voyage of the Torrey Canyon and to destroy her, once she had struck the reef, falls more specifically in the doctrine of innocent passage. As defined by the Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958, to which Britain is a signatory, innocent passage is "not prejudicial to the peace, good order or security of the coastal state." The pollution of the sea and beaches, as well as endangering fishing on the coast, it might be said, clearly prejudiced the "good order" of Britain. This, coupled with the violation of the Oil in Navigable Waters Act of 1955 provision relating to the "prohibited zone" would appear to constitute sufficient grounds for the British action. Even though Wilson said that he was "at no time inhibited by thoughts of financial claims . . . or international law," the law seems clearly on his side of the case. By the same token, Union Oil would have no grounds for a charge of piracy against Great Britain.
Professor Joseph Sweeney of Fordham was in Newsweek quoted as saying that Britain can sue no one for the cost of destroying the Torrey Canyon. Possibly, this may not be quite accurate. The British may choose to regard the waters around Seven Stones as part of the territorial sea on the grounds that "waters between an offshore island or islands [the Scillies] and the mainland [Land's End]. . . . even if not regarded as international waters. . . , are a part of the territorial sea. . . ." If this were done, then Britain would be "universally regarded as having the competence to take protective action" to safeguard its interests. According to Article 20, paragraph 2, of the 1958 Geneva Convention on "The Territorial Sea," which states that a State may "not. . . arrest a ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course. . . of its voyage through the waters of the coastal State [Britain]," the British Government does have the right to file suit for expenses incurred as a result of bombing the ship and fighting the oil slick. It appears, then, that the British Crown may have both a defense against any direct lawsuits and grounds for a lawsuit of its own against the responsible parties. The fact that Britain is capable of filing a lawsuit, however, does not in itself answer the question of jurisdiction, though it does point the way to an answer. It should be emphasized that this is only one of several possible solutions, though it does seem to be the least complex and strongest of the available alternatives.
Moreover, because of her registry, the Torrey Canyon is of Liberian nationality in the eyes of international law. There is, however, some question as to the ability of Liberia to exercise effective jurisdiction in the case. It is further debatable whether Liberia would accept the case even if it had jurisdiction, due to the potential restrictions that could emerge from the case against "flag of convenience" countries.
The International Court of Justice is, in a sense, the court of last resort, invoked only between states when all domestic judicial and diplomatic recourse has been exhausted. The Torrey Canyon Case is not likely to reach the International Court of Justice. There is domestic judicial recourse available which can be used. The foregoing considerations would seem to establish that British authority to act is clear and based in law. International law is, by its nature, customary and frequently unwritten. This characteristic does not, however, remove it from the realm of the enforceable. Although Wilson proclaimed the concept of "territorial waters" to be insufficient in this case, it is the starting point for establishing jurisdiction.
Great Britain, as a maritime nation, has an extensive body of admiralty law and decisions which, in the past, have become established as precedents in international jurisprudence. One of these principles is that the British Admiralty Courts have claimed very broad jurisdictional powers, including cases ranging from the Indian Ocean to the English Channel, some of which do not even involve British ships. Although the nationality of a ship assigns prima facie jurisdiction to the flag state—in this case, Liberia—a merchant vessel is subject, in certain instances, to the jurisdiction of the country in whose territorial waters she is located. One of the special instances, as noted in Article 17 of the 1958 Geneva Convention on "The Territorial Sea," is that a "foreign ship exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State in conformity with these articles." The Torrey Canyon, in the process of exercising innocent passage, might be said to have violated England's Oil in Navigable Waters Act of 1955, a law that conforms with the Convention even though it antedates the Geneva instrument. Article 20, paragraph 3, of the Convention on "The Territorial Sea" points out that "the provisions of the previous paragraph [cited above] are without prejudice to the right of the coastal State, in accordance with its laws . . . [to arrest and exercise civil jurisdiction over the vessel in question]." Thus, under existing international instruments to which Britain is a signatory, the British Crown and Admiralty Courts possess jurisdiction over the Torrey Canyon Case.
A similar incident of recent origin may be mentioned as a guide to one possible method of handling the Torrey Canyon Case, regardless of whose courts hear it. In January 1967, the Goulandras, a Greek-owned tanker of approximately the same size as the Torrey Canyon arrived at Milford Haven to unload her cargo of crude oil at the Texaco dock. She was chartered to Texaco, Inc., an oil company based in the United States. As the ship rose in the water from the unloading of her cargo, a gash in the hull below the waterline was exposed. Further, internal bulkheads, freed from the pressure of the sea, burst. The result was a sudden flood of some 25,000 tons of crude oil in the harbor itself. The Member of Parliament for Pembrokeshire (the district of Wales in which Milford Haven is located), the Hon. Desmond Donnelly, was called to the scene. The Greek captain of the Goulandras, on being questioned by 'Mr. Donnelly, recalled having "brushed something in the Suez Canal." The ship's master promptly "climbed back into his, ship and sailed off." Mr. Donnelly, under immediate local pressure to do something about the oil which, by now, had polluted the beaches around Pembroke Castle as well as the harbor area, simply called the president of Texaco long-distance on the telephone, told him the situation, and asked what Texaco proposed to do about it. Texaco promptly sent in its own clean-up crew and, perhaps rather than becoming involved on the governmental level, has chosen simply to sue the Greek owners of the ship for the loss of the oil and the costs of cleaning the polluted area.
In the absence of an exact parallel to the Torrey Canyon, and reasoning by analogy, it might be submitted that British Petroleum Corporation, the owner of the cargo, can sue the shipowner for the loss of the Torrey Canyon's oil. The British Crown, likewise, can sue the owner of the Torrey Canyon for the cost of cleaning the beaches as well as damages arising from the oil slick. It is not likely, however, that the Crown could recover the cost of the military operations incident to the bombing of the ship. It would also appear that if the Crown were to file suit in its own behalf, it would lose its sovereign immunity, thus opening itself to a countersuit.
Shortly after the start of the bombing, Union Oil of California had said that it would sue Britain on charges of piracy, claiming itself to be the owner of the tanker. By Union Oil's acknowledgement of ownership, Barracuda Tanker Corporation in Liberia would seem to be freed from responsibility under international law, though Union Oil could later sue Barracuda. According to the Constitution of the United States, disputes between American citizens (Union Oil) and foreign governments fall under the original jurisdiction of the Federal court system, conceivably meaning the Supreme Court. The latter, however, is unlikely. It is more likely that the British Crown would file suit in the Federal court whose District includes the home office of Union Oil. In this, unusual but not exceptional case' Great Britain would then be a private party, not a sovereign entity and not subject to sovereign immunity or the other protections of the international legal system. The Constitution, however, provides that treaties to which the United States is a party make up an element of "the law of the land." The United States is a signatory of the Geneva Conventions, the articles of which are cited above as establishing British jurisdiction over the Torrey Canyon. It would follow, therefore, that Union Oil must respond to any suit by the British.
Thus far, in this discussion, consideration has been given primarily to those claims and lawsuits that would most directly affect international relations and law—this for the purpose of establishing legal jurisdiction over the Torrey Canyon and to point out at least some of the possible ways in which that jurisdiction could be exercised. The outgrowth of this is the question of who would be the parties to the lawsuits and why—that is, ultimate liability. Relative to the first point, determining liability is not difficult in itself. The problem lies in the vacuum that exists in international law. Filling such a void at this point is risky at best, and it is the hope of lawyers that the Torrey Canyon settlement will itself serve to provide needed precedent.
As noted above, Union Oil of California has assumed responsibility for the Torrey Canyon insofar as acknowledging ownership. It may be assumed, then, that Barracuda is released from primary liability for the ship. The tanker, however, flew the Liberian flag and was ipso facto a Liberian ship, regardless of the nationality of the owner. Union Oil, if it were to sue Barracuda, would have to file suit in Liberian courts. It is unlikely, however, that such a lawsuit will be necessary for Union Oil to cover its loss. The Torrey Canyon carried hull insurance in the amount of $16.5 million. This insurance applies only to the ship herself. Following normal practice in maritime insurance, the coverage had been distributed among some 120 U. S. and British syndicates. This amount will be split between Union Oil and the beneficiary of the policy, presumably Barracuda Tanker Corporation. In addition, the tanker was covered by "P & I" (Protection & Indemnity) insurance held by the Marine Office of America, a consortium, in the amount of $2.5 million. An additional, and undisclosed, amount of "P & I" was carried by other companies, also unnamed, in behalf of Union Oil. There is, as yet, no reason to assume one way or the other that the undisclosed amount would cover the possible damage suits against Union Oil. British Petroleum Corporation, the cargo owner, had insured the Torrey Canyon's crude oil for $1.6 million, probably sufficient to cover this loss. Further, Professor Sweeney appears to be correct when he says that, if the shipowner were sued in British courts, on ground of oil pollution as provided in the 1954 Convention on Oil Pollution, the shipowner's liability would amount to no more than about $4 million. If, however, the ground for such a suit were the 1924 Brussels Convention (in force since 1931), to which both the United States and Britain are signatories, the liability of Union Oil could possibly be assessed as high as the full value of the ship, due to the fact that the wreck was responsible for the death of the Dutch salvage master whose efforts were undertaken in behalf of Union Oil. Even though the Brussels Convention is international law, rather than the British municipal law to which Professor Sweeney referred, it could be applied in this case quite easily. Such an application of this Convention would be strengthened considerably if the local fishermen, whose fishing grounds had been polluted by the cargo of the Torrey Canyon, were able to prove personal injury as a result of the wreck. Conceivably, it is on this point that the United Kingdom, as a private "person," could sue for damages.
The pattern of liability would thus appear to exclude the British Crown on grounds of sovereign immunity, even if one were to ignore the other points of international law that reinforce the English action. British Petroleum Corporation, though the chartering firm, is probably not liable, because the fanker was only chartered, not owned and operated, by British Petroleum. The owner in the country of registry (Liberia), Barracuda Tanker Corporation would normally be liable in its own right, regardless of its ownership by Union Oil of California. Union Oil, however, a U. S. firm, has openly proclaimed itself owner of the ship. This has been done in two ways: first, explicitly by announcement; second, implicitly by its threat of a suit against Britain for piracy. That the owner of a ship is liable for his ship and the damage she may cause has been a firmly established principle of the English common law, though statutorily only since 1813. Therefore, it would follow that Barracuda is released from direct liability, and Union Oil, as self-proclaimed owner of Torrey Canyon, has taken upon itself the ultimate responsibility, that is, liability, for the ship. Union Oil, then, could need insurance up to the amount of $16.5 million, or else possess sufficient funds to cover all possible claims against it. In any case, at this point, Union Oil of California and its various insurance companies seem likely to suffer a very heavy loss over and above intrinsic value of the tanker as a result of the wreck of the Torrey Canyon.
Perhaps the greatest single problem the Torrey Canyon has produced is that, while the case can move into the courts, there is a large gap between the letter of the present laws and the reality of modern tankers, indeed, modern shipping in general. What will result from the case in terms of judicial decisions and damage awards is a matter of considerable speculation at this time. Among the expectations of the lawyers, however, are consideration of several basic gaps in the law that need to be filled effectively. One such point could be supplied by a convention relating specifically to the matter of jurisdiction in maritime cases. This would greatly facilitate the settlement of claims similar to those in the Torrey Canyon Case. Another aid to international law would be the establishment of a new statutory principle relating the nationality of the owner to the nationality of the ship. The concept of a "genuine link" between the owner and the country of registry is clearly insufficient. International regulations governing the movements of large rankers will, no doubt, be changed, though exactly what changes will result is not yet clear. Prime Minister Wilson has already asked for, and will probably get, a meeting of the Inter-Governmental Maritime Consultive Organization (IMCO) to deal with this problem.*
The least apparent and probably the most important outgrowth of the Torrey Canyon Case would be the settlement of the question of whether or not international conventions concluded under the auspices of a U. N. resolution are binding upon all members of the United Nations, regardless of whether or not the nation in question is a signatory to the convention. In the long-range development of the United Nations, as well as the case itself, this is an important question. Had Liberia been a signatory to the 1958 Geneva Convention on "The Territorial Sea," the question of jurisdiction in the Torrey Canyon Case would probably not have arisen.
A series of international regulations for tankers could be broadened eventually to include all forms of merchant shipping, but regulations presuppose an enforcement agency. An international merchant shipping regulation agency would be a service to all maritime nations, though its standards conceivably could hurt the economies of the "flag of convenience" countries, such as Liberia. It could function most effectively if it were established as a public international union by the United Nations and if its rulings were made binding on all members, by means of fines or other penalties that could be assessed in the event of a violation. In a sense, the United Nations, or a branch of it, would be engaging in a form of supranational legislation, involving a slight derogation of sovereignty by the member states. Such a derogation would require the voluntary consent of each state in the first instance, though not necessarily thereafter. The agency could establish safety and seaworthiness standards and fix routes for specific types of ships, as a part of its duties.
The Torrey Canyon was a supranational, as well as international disaster, and its implications point to a supranational solution. Indeed, such a solution is clearly called for if similar incidents are to be avoided.
*See L. W. Goddu, Jr., "IMCO: An Assistance to the American Merchant Marine," U. S. Naval Institute PROCEEDINGS, December 1966, pp. 71-83.
A graduate of Virginia Military Institute in 1965, Mr. Marshall was awarded his Master's Degree from Vanderbilt University in 1966. A Special Instructor in History at Memphis State University, Memphis, Tennessee, during the summer of 1967, he has been an N.D.E.A. Fellow at Vanderbilt University since fall of 1965, where he will complete the requirements for his Ph.D. in history next year.