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Exposé des Motifs
[Revised text of the Exposé des Motifs of the Paris Convention,
approved by the OECD Council on 16th November 1982.]
Introduction
- The
production and use of atomic energy involves hazards of a special character
and potentially far-reaching consequences. Despite the high level of
safety achieved in this field, the possibility remains that incidents
capable of causing considerable damage could occur.
- A
special régime for nuclear third party liability is necessary
since the ordinary common law is not well suited to deal with the particular
problems in this field. Indeed, if the ordinary law were applied, there
are several different persons who might be held liable for damage caused
by a nuclear incident and victims would, in all likelihood, have great
difficulty in establishing which of them was, in fact, liable. Moreover,
that person would have unlimited liability without being able to obtain
complete insurance cover. The prime objective of this special régime
is to ensure the adequate compensation of damage caused to persons and
to property by a nuclear incident. However, the operators of nuclear
installations should not be exposed to an excessively burdensome liability
and all those (such as builders or suppliers) associated with the construction
or operation of nuclear installations should be exempted from liability.
- A
special régime for third party liability should as far as possible
provide a uniform system for all Western European countries. The effects
and repercussions of a nuclear incident will not stop at political or
geographical frontiers and it is highly desirable that persons on one
side of a frontier should be no less well protected than persons on
the other side.
For these reasons, an international agreement setting up such a régime
is desirable. Such an agreement, supplementing the measures applied
in the related and important fields of public health and safety and
the prevention of accidents, may also facilitate the solution of third
party liability problems at a national level.
- Furthermore,
the possible magnitude of a nuclear incident requires international
collaboration between national insurance pools. Only by an effective
marshalling of the resources of the international insurance market by
coinsurance and reinsurance can sufficient financial security be made
available to meet possible compensation claims. The establishment at
an international level of uniform third party liability regulations
is essential if this collaboration is to be achieved.
- The
core of the third party liability problem is upon whom, in what proportions
and on what conditions, the risk of legal liability for damage caused
by nuclear incidents should fall. The solution to this problem involves
reconciling the various interests in question: compensating as fully
as possible the victims, limiting the liability of the operator and
exempting all other persons from liability. Finally, it should be noted
that countries may provide in their legislation for supplementary compensation
by means of public funds (1) .
- This reconciling of the various interests in question has led to a
system based on the following principles:
- strict liability, that is to say, liability without fault;
- exclusive liability of the operator;
- limitation of this liability in amount and in time;
- obligation on the operator to cover his liability by insurance
or other financial security.
Scope of Application of the Convention
- The
Convention provides an exceptional régime and its scope is limited
to risks of an exceptional character for which common law rules and
practice are not suitable. Whenever risks, even those associated with
nuclear activities, can properly be dealt with through existing legal
processes, they are left outside the scope of the Convention.
The Convention does not apply to nuclear incidents occurring in the
territory of non-Contracting States or to damage suffered in such
territory, unless the national legislation of the operator liable
otherwise provides [Articles
2 and 23(a)], but with
one small exception which grants certain persons rights against operators
even though operators are not liable under the Convention (see paragraph
37). The term "territory" as used in the Convention is understood
to include territorial seas (2).
- The
special régime of the Convention applies only to nuclear incidents
occurring at or in connection with certain nuclear installations, or
in the course of transport of nuclear substances as defined. States
remain free, of course, to take additional measures outside the Convention
to apply its provisions to nuclear incidents not covered thereby, but
this must be done through funds other than those made available under
the Convention.
A nuclear incident is defined as any occurrence or succession of occurrences
having the same origin which causes damage, provided that the occurrence
or succession of occurrences, or any of the damage caused, are due
to radioactivity or a combination of radioactivity with toxic, explosive
or other hazardous properties of nuclear fuel or radioactive products
or waste or due to ionizing radiations emitted by any other source
of radiation which is inside a nuclear installation, as defined in
the Convention. Thus, for example, an uncontrolled release of radiation
extending over a certain period of time is considered to be a nuclear
incident if its origin lies in one single phenomenon even though there
has been an interruption in the emission of radioactivity. With this
definition of "nuclear incident" it is clear that where both the occurrence
and the damage are due to radioactivity, compensation may be claimed.
Similarly, where the occurrence and the damage are conventional, there
will be no claim. Compensation may, however, be claimed under the
Convention either where an occurrence due to radioactivity causes
conventional damage or injury or where an occurrence of conventional
origin causes radiation damage or injury.
The situation may arise, however, where both a nuclear incident and
a conventional occurrence are so closely interrelated that the resulting
damage or loss may be said to have been caused jointly by the nuclear
incident and such other occurrence. In such case, to the extent that
the damage or loss caused by the conventional occurrence is not reasonably
separable from that caused by the nuclear incident, such damage or
loss is considered to be damage caused by the nuclear incident and
thus compensation in respect thereof may be claimed under the Convention
[Article 3(b),
first sentence].
Where, however, damage has been caused jointly by a nuclear incident
and an emission of ionizing radiation not covered by the Convention
given that the source is outside a nuclear installation and is not
constituted of materials covered by the Convention it has been provided
in order not to prejudge the assignment of liability in such a case,
that the Convention does not limit or otherwise affect the liability
of any person in connection with such an emission of ionizing radiation
[Article 3(b),
second sentence].
- Nuclear
installations are defined as reactors (3) other than
those comprised in any means of transport (see paragraph 11), factories
for the manufacture or processing of nuclear substances, factories for
the separation of isotopes of nuclear fuel, factories for the reprocessing
of irradiated nuclear fuel, and facilities for the storage of nuclear
substances. Where nuclear substances are stored only as an incidental
part of their carriage -- for example, on a railway station platform
-- the facilities used for such storage will normally not be deemed
to come within the definition of nuclear installation because of the
transitory and fortuitous nature of the storage. Nuclear fuel is defined
as fissionable material, i.e. uranium, including natural uranium in
all its forms, and plutonium in all its forms. Nuclear substances are
defined as nuclear fuel, other than natural uranium and depleted uranium,
and radioactive products or waste. Depleted uranium means uranium which
contains a smaller proportion of the isotope U-235 than is contained
in natural uranium (4).
Some activities, as for example, mining, milling and the physical
concentration of uranium ores, do not involve high levels of radioactivity
and such hazard as there is concerns persons immediately involved
in those activities rather than the public at large. Hence, these
activities do not fall within the scope of the exceptional régime
of the Convention. Factories for the manufacture or processing of
natural or depleted uranium, facilities for the storage of natural
or depleted uranium, and the transport of natural or depleted uranium,
since the level of radioactivity is low and there are no criticality
risks, are also excluded.
Installations where small amounts of fissionable materials are to
be found, such as research laboratories, are likewise outside the
Convention. Particle accelerators, too, are excluded. Finally, where
materials, such as uranium salts, are used incidentally in various
industrial activities not related to the nuclear industry, such usage
does not bring the plant concerned within the scope of the Convention.
- Similarly,
risks which arise in respect of radioisotopes usable for any industrial,
commercial, agricultural, medical, scientific or educational purposes
are excluded from the scope of the Convention, provided the radioisotopes
have completed their final stage of manufacture and are outside a nuclear
installation. Such risks are not of an exceptional nature and, indeed,
are covered by the insurance industry in the ordinary course of business.
Despite the rapidly increasing use of radioisotopes in many fields,
which will require continual and careful observance of health protection
precautions, there is little possibility of catastrophe. Hence no special
third party liability problems are posed and the matter is left to ordinary
legal régimes.
- For
different reasons, only reactors other than those comprised in any means
of transport are covered; i.e., reactors which are used or incorporated
for use in a means of transport as a source of power, whether for propelling
it or for any other purpose such as, for example, serving as a source
of electricity for lighting the means of transport, are excluded [Article
1(a)(ii)] (5).
- Further,
given that the possible applications of nuclear fusion are not yet clear,
it does not seem possible or necessary to take this form of nuclear
activity into consideration in the Convention.
- So as to take account of future developments as well as new activities
which may involve risks of an exceptional kind, it is provided that
the Steering Committee for Nuclear Energy, the governing body of the
OECD Nuclear Energy Agency (NEA), may extend the scope of the Convention
to other nuclear installations [Article
1(a)(ii)]. The Steering Committee may furthermore include new fissionable
materials in the definition of nuclear fuel [Article
1(a)(iii)]. It may also decide that a nuclear installation or nuclear
fuel or nuclear substances at present included may, by reason of the
small risks involved, cease to be covered by the Convention [Article
1(b)]. Decisions of the Steering Committee in all these matters
are taken, in accordance with the Statute of NEA, by mutual agreement
of the members of the Steering Committee representing Contracting Parties
[Article 16].
Nature of Liability
- In Western Europe, with but few exceptions, there is a long-established
tradition of legislative action or judicial interpretation that a presumption
of liability for hazards created arises when a person engages in a dangerous
activity. Because of the special dangers involved in the activities
within the scope of the Convention and the difficulty of establishing
negligence in view of the complex techniques of atomic energy, this
presumption has been adopted for nuclear liability. Absolute liability
is therefore the rule; liability results from the risk irrespective
of fault [Articles 3
and 4]. This does
not, however, mean that merely to engage in a nuclear activity or to
transport nuclear substances is to be considered in itself as a presumption
of fault; but where an incident occurs, the liability of the operator
of the nuclear installation concerned is absolute.
Person Liable - Installations
- All
liability is channelled onto one person, namely the operator of the
nuclear installation where the nuclear incident occurs. Under the Convention,
the operator - and only the operator - is liable for nuclear incidents
at installations and no other person is liable. The Convention deals,
of course, only with civil liability. The operator of a nuclear installation
is defined as the person designated or recognized as the operator of
that nuclear installation by the competent public authority [Article
1(a)(vi)]. Where there is a system of licensing or authorization,
the operator will be the licensee or person duly authorized. In all
other cases he will be the person required by the competent public authority,
in accordance with the provisions of the Convention, to have the necessary
financial protection to meet third party liability risks. Thus, during
test operation when a reactor, for the initial trial period, is normally
operated by the supplier before being handed over to the person for
whom the reactor was supplied, the person liable will be appropriately
designated by the competent public authority. Where an action is brought,
the court concerned will be bound to consider the operator as the person
considered as the operator by the competent public authority of the
country where the operator's installation is situated.
Two primary factors have motivated in favour of this channelling of
all liability onto the operator as distinct from the position under
the ordinary law of torts. Firstly, it is desirable to avoid difficult
and lengthy questions of complicated legal cross-actions to establish
in individual cases who is legally liable. Secondly, such channelling
obviates the necessity for all those who might be associated with
the construction or operation of a nuclear installation other than
the operator himself to take out insurance also, and thus allows a
concentration of the insurance capacity available.
A Contracting Party may decide that, where one person operates a number
of nuclear installations at the same site, these installations are
to be treated as a single nuclear installation; this decision may
include other premises on the same site where radioactive material
is held but which are not nuclear installations as defined in the
Convention [Article
1(a)(ii)]. Apart from possible advantages from the insurance point
of view of all the installations on the site being grouped together,
such a decision would enable victims to benefit from the same compensation
régime without having to establish where on the site the incident
originated.
- No
person other than the operator is liable for compensation for damage
caused by a nuclear incident [Article 6(b)] except in the following
cases:
-
with regard to damage to the nuclear installation itself or to on-site
property (as well as to any other nuclear installation on the same
site) (see paragraph 40) [Article
3(a)(ii)] for which the operator is not liable under the Convention,
the Convention leaves it to the ordinary rules of law to determine
the liability of an individual where such damage results from an
act or omission of that individual done with intent to cause damage
[Article 6(c)(i)(1)];
such is also the case for damage for which the operator is not liable
by virtue of Article
9 (see paragraph 48);
-
in addition, the Convention does not affect the liability of a person
duly authorized to operate a reactor comprised in a means of transport
where no operator is liable, under the Convention, for damage caused
by nuclear substances coming from or going to that reactor [Article
6(c)(i)(2)] (see also paragraph 11).
Finally,
this rule does not affect certain existing international agreements
in the field of transport (see paragraph 35) nor is it intended
to affect the rules of public international law with regard to any
possible responsibility of states towards each other [Annex
II to the Convention].
- It
is essential to the notion of channelling liability onto the operator
that no actions may lie against any other person and in particular,
for example, any person who has supplied any services, materials or
equipment in connection with the planning, construction, modification,
maintenance, repair or operation of a nuclear installation.
In the ordinary course of law, on the contrary, should an incident
arise due to a defect in design or in material supplied, a person
suffering damage may well have a right of action against the supplier,
for example, on the basis of the so-called products liability.
- Furthermore,
the operator might well have a recourse for indemnity in respect of
any compensation which he has to pay for damage to third parties. A
corollary to the notion of channelling is therefore that possible recourse
actions by the operator (or the insurer or other financial guarantor
to whom the operator's right of recourse may have been transferred)
against suppliers in respect of any sums which the operator has paid
as compensation are barred. If they were not, each supplier would have
to insure himself against the same risk already covered by the operator's
insurance and this would involve a costly duplication of insurance with
no benefit to victims.
- There
are, however, two exceptions to this rule. Firstly, where the damage
caused by a nuclear incident results from an act or omission done with
the intention of causing damage, the operator's normal right of recourse
against the individual who so acts or omits to act is specifically retained
[Article 6(f)(i)].
The right of recourse is limited to a right against the individual physical
person who acts or omits to act with intent to cause damage. There is
no right of recourse against the employer of such a person and the principle
of respondeat superior is thus excluded. Imputation to the employer
of acts or omissions of individuals done with intent to cause damage
has been barred, for it would be contrary to the purpose of the Convention.
Under the Convention, operators of nuclear installations can never be
held to any civil liability beyond the amount laid down in accordance
with Article 7 even
if the damage was caused by them with intent to cause damage. For this
maximum liability, insurance or other financial security will be available.
Secondly, rights of recourse may be exercised by the operator liable
where and to the extent that they are expressly provided for by contract
[Article 6(f)(ii)].
These rights of recourse may, of course, be exercised by the insurer
or other financial guarantor by way of subrogation.
The provisions of Article
6(f) relating to the operator's right of recourse do not include
his rights to recover from joint tortfeasors in the case where more
than one operator is liable.
- Where
the damage gives rise to the liability of more than one operator, the
liability of the different operators involved is joint and several and
any of them may therefore be sued for the whole amount of the damage.
The total amount of compensation available is therefore the aggregate
of the sums of each of the operators concerned. This rule, however,
does not apply to a nuclear incident involving nuclear substances in
the course of carriage in one and the same means of transport, or involving
such substances where they are stored incidental to the carriage, in
one and the same nuclear installation; here the total amount of compensation
is the highest amount established with respect to any of them. In any
event, whether the nuclear incident occurs at or in connection with
an installation or in the course of transport, no operator is liable
to pay more than the maximum amount established for him in respect of
a nuclear incident in accordance with Article
7 [Article 5(d)].
The ordinary operation of common law as regards contributions between
persons jointly and severally liable will regulate the recovery of sums
paid as compensation to third parties as between the different operators
involved.
- In the event of a nuclear incident involving nuclear fuel or radioactive
products or waste which have been stolen, lost, jettisoned or abandoned,
liability is imposed either on the operator from whose nuclear installation
the materials came immediately before such an event or on any other
operator who has assumed liability for them in accordance with the Convention
[Articles 3(a) and
4].
Person Liable - Transport
- When
nuclear incidents occur in the course of transport of nuclear substances,
the choice of the person liable must fall either upon the carrier or
upon the operator of the nuclear installation in connection with which
the substances are carried. The choice will not affect any contractual
arrangements which may be made by the person liable and, in turn, such
arrangements will not, of course, have any effect upon third persons.
It would seem normal, in the case of transport, for the carrier to
be the person liable and this is the present situation at common law.
However, in the case of nuclear substances, very special considerations
are involved. The carrier will generally not be in a position to verify
the precautions in packing and containment taken by the person sending
the substances. Moreover, if the carrier is to be liable he will have
to obtain the necessary insurance coverage in respect of potentially
high liability, and this would result in increased transport charges
for the operator. Transport insurance ordinarily covers only the value
of the goods transported, i.e., their loss or destruction, and does
not extend to damage which such goods may cause to third persons.
- If
liability is to be imposed on the operator, the operator in question
must be defined: is it to be the operator who sends nuclear substances
or who receives them? In principle, liability is imposed on the operator
sending the substances since he will be responsible for the packing
and containment and for ensuring that these comply with the health and
safety regulations laid down for transport [Article
4(a)].
- The
liability of the sending operator ends when the operator of another
nuclear installation has assumed liability for the substances pursuant
to the express terms of a written contract [Article
4(a)(i) and (b)(i)];
but, if the contract contains no such express terms, his liability ends
when the operator of another nuclear installation has taken charge of
the substances [Article
4(a)(ii) and (b)(ii)].
It also ends when the substances have been taken in charge by a person
duly authorized to operate a reactor comprised in a means of transport,
if the substances are intended to be used in that reactor [Article
4(a)(iii)]. Thus, from the point of view of the person suffering
damage, the burden of proof will be on the sending operator to show
that the operator of some other nuclear installation has assumed liability
under contract or that such operator or a person operating a reactor
comprised in a means of transport has taken charge of the nuclear substances.
The precise moment of the taking in charge will normally be determined
by the competent tribunal in the event of actions (but also see paragraph
32). Similarly, if the substances are sent to the operator from a person
operating a reactor comprised in a means of transport, the liability
of the receiving operator begins when he has taken charge of them [Article
4(b)(iii)].
- The
Convention clearly cannot impose liability upon persons not subject
to the jurisdiction of the Contracting Parties. If the substances are
consigned to a destination in a non-Contracting State, it is therefore
the sending operator who is liable until the substances have been unloaded
from the means of transport by which they arrived in the territory of
the non-Contracting State [Article
4(a)(iv)] subject to the conditions described in paragraphs 27 and
28.
- In
the converse situation, where substances are being carried from a non-Contracting
State to a Contracting Party, i.e. where there is no sender in the territory
of the Contracting Parties it is vital for victims that there should
always be somebody liable within the territory of the Contracting Parties:
liability in this case is imposed upon the operator for whom the substances
are destined, and with whose written consent they have been sent, from
the moment that they have been loaded on the means of transport by which
they are to be carried from the territory of the non-Contracting State
[Article 4(b)(iv)]
subject always to the conditions described in paragraphs 27 and 28.
- In
the cases referred to in paragraphs 25 and 26, the liability of the
operator is, however, normally more restricted than may appear from
Article 4(a) and (b). As has already been pointed out (see paragraph
7) the operator will not be liable under the Convention, unless the
national legislation of the Contracting Party in whose territory his
installations is situated otherwise provides, for nuclear incidents
occurring in or damage suffered in the territory of a non-Contracting
State, though certain persons may have rights which they can enforce
against him (see paragraph 37).
- Thus,
in the case envisaged in paragraph 25, the liability of the operator
sending the substances normally ceases when the substances enter the
territory of the non-Contracting State (including its territorial waters).
He will be liable on such territory only if use has been made in his
national legislation of the option under Article 2 to extend the territorial
field of application of the Convention.
Similarly, in the case envisaged in paragraph 26, the operator for
whom the nuclear substances are destined is normally liable only from
the moment when the substances leave the territory (territorial waters
included) of the non-Contracting State. He will be liable on such
territory only if this same extension of the territorial field of
application of the Convention has been made under his national legislation.
- In
addition, since nuclear substances may be stored temporarily in the
course of their carriage it was necessary to establish a clear rule
as to which operator would be liable if such storage took place in a
nuclear installation. Although facilities where nuclear substances are
stored only incidentally to their carriage are normally excluded from
the definition of "nuclear installation" (see paragraph 9), such facility
may itself be a nuclear installation within the meaning of Article
1(a)(ii). However, the operator of a nuclear installation will not
be liable for damage caused by a nuclear incident involving only nuclear
substances which are stored at his installation incidental to their
carriage where another operator or person is liable pursuant to Article
4 [Article 5(b)].
- There
is one exception to the basic principle that only the operator is liable
under the Convention. A Contracting Party may, by legislation, on condition
that the requirements of Article 10(a) with regard to financial security
are fulfilled, provide that a carrier be liable under the Convention
in substitution for an operator of a nuclear installation in its territory.
Such substitution will be in accordance with the terms laid down in
the legislation and by decision of the competent public authority. Moreover,
the substitution must be requested by the carrier and have the consent
of the operator of the nuclear installation situated in the territory
of the Contracting Party in question. Once the decision has been taken,
the carrier will be liable in accordance with the Convention in place
of that operator. For all the purposes of the Convention, the carrier
is then considered, in respect of nuclear incidents occurring in the
course of carriage of nuclear substances, as an operator of a nuclear
installation in the territory of the Contracting Party whose legislation
has provided for the substitution [Article
4(d)].
Where, in respect of the carriage of nuclear substances coming from
or destined for different operators, the carrier has assumed, by substitution,
the liability of each of the operators concerned, such carrier is
considered as if he were each of the different operators concerned
and the rules relating to liability of more than one operator will
apply in the same way as if there had been no substitution.
- In
order to facilitate the transport of nuclear substances, especially
in the event of transit through a number of countries, it is provided
that in respect of each carriage the operator liable in accordance with
the Convention must provide the carrier with a certificate issued by
or on behalf of the insurer or other person providing the financial
security required pursuant to Article 10. However, this general obligation
operates in the case of international carriage only, each Contracting
Party being free to dispense with it in relation to carriage which takes
place wholly within its territory. The certificate must contain the
name and address of the operator liable and the details of the financial
security. This information may not be subsequently contested by the
person by whom or on whose behalf the certificate was issued. The certificate
must also include an indication of the nuclear substances involved and
the carriage in respect of which the security applies, as well as a
statement by the competent public authority that the person named is
an operator within the meaning of the Convention [Article
4(c)] (6).
- For
transport of nuclear substances to or from installations situated in
its territory, a Contracting Party may require the operators of the
installations for whom the substances are carried from abroad to take
the substances in charge the moment the substances reach its territory
or even earlier. Similarly, in the case of nuclear substances sent by
operators of nuclear installations in its territory to a foreign destination,
a Contracting Party may require that the nuclear substances shall remain
in the charge of such operators until they have left its territory or
even longer.
- The
possession of a certificate by a carrier does not imply any right to
enter the territory of a Contracting Party. Moreover, a Contracting
Party may subject the transit of nuclear substances through its territory
to the condition that the maximum amount of liability of the foreign
operator concerned is increased if it considers, taking account of the
special dangers of the nuclear substances in the particular transit
in question, that such amount does not adequately cover the risks. But
the maximum amount thus increased, which applies only to incidents occurring
on the territory of the State being transited, cannot exceed the maximum
amount of liability of operators of nuclear installations situated in
its territory [Article
7(e)].
It was recognized, however, that a right of entry in case of urgent
distress into the ports of States and a right of innocent passage
through territorial seas is granted under international law and that
by agreement or under international law there may be a right to fly
over or land on the territory of States; hence the provisions of Article
7(e) do not apply to a transit by sea or by air in these cases
[Article 7(f)].
- Where,
and this may well be a normal case, the carriage involves nuclear substances
sent by a number of different operators, the maximum total amount for
which such operators are jointly and severally liable is the highest
amount established with respect to any of them pursuant to Article 7.
As has already been stated (see paragraph 20), there is no accumulation
of amounts for a nuclear incident in the course of transport when the
nuclear substances involved are in one and the same means of transport
or are stored incidentally to the transport, in one and the same nuclear
installation.
- It
has been thought advisable not to interfere with existing international
agreements in the field of transport in force or open for signature,
ratification or accession at the date of the Convention (29th July 1960)
especially since countries outside Europe are parties to them. International
agreements in the field of transport are understood to mean international
agreements dealing with third party liability for damage involving a
means of transport and international agreements dealing with bills of
lading. To avoid the possibility of conflicting provisions, it is laid
down that the Convention does not affect the application of such agreements
[Article 6(b)].
- Hence,
a person suffering damage caused by a nuclear incident occurring in
the course of transport may have two rights of action: one against the
operator liable under the Convention and another against the carrier
liable under existing international agreements in the field of transport
(7).
Where the operator liable is at the same time the carrier, for example,
where he transports nuclear substances on his own means of transport,
these two possible actions may be brought against one person. In this
case, however, the operator cannot take advantage of the provisions
of international agreements in the field of transport to reduce or
alter his liability under the Convention.
- A
person so liable under any international agreement or under any legislation
of a non-Contracting State acquires by subrogation the rights under
the Convention of the person whom he has compensated [Article
6(d)]. If a nuclear incident occurs in the territory of a non-Contracting
State or damage is suffered in such territory, any person who has his
principal place of business in the territory of a Contracting Party
or who is the servant of such a person acquires the rights which the
person whom he has compensated would have had under the Convention had
it not been for Article 2 [Article
6(e)]. This rule, which provides for rights against the operator
in circumstances where he is not liable under the Convention to persons
suffering damage, i.e., in non-Contracting States, is the only derogation
from the general principle of Article 2. But these rights, and the rights
of subrogation mentioned earlier, can only be exercised by a person
against the operator to the extent that the operator does not have a
right of recourse against him [Article
6(g)].
The rules relating to damage or loss caused jointly by a nuclear incident
and by an incident other than a nuclear incident or caused jointly
by a nuclear incident and by an emission of ionizing radiation not
covered by the Convention (see paragraph 8) apply equally to nuclear
incidents occurring in the course of transport.
All these rules relating to transport apply to all the different
means of transport.
Actions
- Although
actions for compensation under the Convention, whether arising out of
nuclear incidents occurring at or in connection with nuclear installations
or in the course of transport, can in principle only be brought against
the operator, the right to bring actions against the insurer or other
person providing the financial security, either as an alternative to
the operator or in addition to him, is maintained where the national
law of the court having jurisdiction grants a right of direct action
in such a case [Article
6(a)].
Damage giving Right to Compensation
- The
Convention contains no detailed provisions determining the kind of damage
or injury which will be compensated, but it is provided merely that
damage must be to persons or property and related causally to a nuclear
incident. What should be considered as damage to persons or property
and the extent to which compensation will be recoverable, is, in view
of the very wide divergence of legal principles and jurisprudence in
the law of torts in European countries, left to be decided by the competent
court in accordance with the national law applicable [Article
3].
- In
respect of property, however, there is no right of compensation under
the Convention for damage to the installation itself or to any other
nuclear installation, including one under construction, on that same
site. The purpose of this last exclusion is to avoid the financial security
constituted by the operator from being used principally to compensate
damage to such installations to the detriment of third parties. On-site
property which is used or is to be used in connection with any such
installation is also excluded from the third party liability of the
nuclear operator; this exclusion does not affect the personal property
of any person employed on the site.
Furthermore, the nuclear operator must compensate damage to the means
of transport upon which the nuclear substances involved were at the
time of a nuclear incident occurring in the course of carriage and
outside a nuclear installation.
However, the compensation of damage to the means of transport must
not have the effect of reducing the liability of the operator in respect
of other damage to less than either 5 000 000 Special Drawing Rights
(SDRs) of the International Monetary Fund (see paragraph 43) or, since
this amount of 5 000 000 SDRs is considered to be a minimum, any higher
amount established by the legislation of a Contracting Party [Article
7(c)]. In practice, if the damage other than that to the means
of transport is less than this amount, the part of the amount not
used is available, if necessary, for compensation for damage to the
means of transport. On the other hand, if other damage is more than
5 000 000 SDRs, there may be proportional distribution of the total
amount available to cover all the damage including damage to the means
of transport. This might involve paying compensation of more than
5 000 000 SDRs for other damage but cannot result in reducing the
amount of compensation for such other damage below 5 000 000 SDRs.
Where property belongs to the operator himself, no action for compensation
would lie in any event since a person cannot sue himself.
- The operator cannot be liable outside the Convention for damage to
on-site property. However, where a right to compensation for damage
exists by virtue of contractual arrangements, such right remains unaffected
by the Convention.
Industrial Accidents and Occupational Diseases
- Any person who suffers damage caused by a nuclear incident, whether
he is a third party inside or outside the installation or an employee
of the operator of the installation in question, is covered by Article
3. In most countries, employees who suffer damage may also be entitled
in respect of such damage to compensation under national or public health
insurance, social security, workmen's compensation or occupational disease
compensation systems. In principle it is felt that benefits under such
systems should be retained for employees whether of the installation
in question or employed in other establishments, but it is left to the
law establishing such systems to decide this as well as whether employees
should also be entitled to compensation under the Convention. This law
will also decide whether the bodies responsible for such systems can
turn to the operator to recover for payments made, it being understood
that in any event the operator cannot be obliged to pay more than the
maximum liability laid down. Where such systems have been established
by an intergovernmental organisation these questions are left to be
decided by the regulations of the organisation [Article
6(h)].
Limitation of Liability in Amount
- In
the absence of a limitation of liability, the risks could in the worst
possible circumstances involve financial liabilities greater than any
hitherto encountered and it would be very difficult for operators to
find the necessary financial security to meet the risks.
The maximum liability in respect of any single nuclear incident, whether
occurring at or in connection with a nuclear installation or in the
course of carriage of nuclear substances, has been fixed at 15 000
000 SDRs (8). However, it is possible to derogate
from this amount in two ways.
In the first place, a Contracting Party may, taking into account the
possibilities for the operator of obtaining insurance or other financial
security up to the level normally required under the Convention [Article
10], establish by legislation either an amount greater than 15 000
000 SDRs or a lower amount; such lower amount may not, however, be
less than 5 000 000 SDRs [Article
7(a) and (b)].
In the second place, a Contracting Party may also establish a limit
of liability at less than 15 000 000 SDRs when the nuclear installation
or, in the case of carriage, the nuclear substances involved are not
considered by that Contracting Party as likely to cause great damage
as compared to the other nuclear installations and transports referred
to in the Convention (e.g. certain small research reactors or laboratories).
The aim of this option is to avoid burdening the nuclear operators
concerned with unjustified insurance or financial security costs;
its use, however is subject to the condition that the reduced amount
so established may not be less than 5 000 000 SDRs (9).
- If
no special rule were envisaged with respect to maximum liability for
nuclear incidents occurring in the course of transport, an operator
might be liable for varying amounts depending on the countries crossed
in the course of the voyage. To avoid this it is provided that, subject
to the provisions of Article 7(e), the maximum liability will, in the
same way as for nuclear incidents occurring at or in connection with
nuclear installations, be determined by the national legislation of
the operator liable [Article
7(d)].
- The
possibility of removing the limit in the case of fault on the part of
the operator or his employees was considered, but it was feared that
in the absence of experience in operating nuclear installations, the
notion of fault or gross negligence would be very difficult to define
and would tend to be given a wide interpretation. Moreover, unlimited
liability could easily lead to the ruin of the operator without affording
any substantial contribution to compensation for the damage caused.
- The amount fixed for the maximum liability in accordance with Article
7 does not include interest and costs awarded by a court in actions
for compensation. Such interest and costs are payable by the operator
in addition to any sum for which he is liable under Article 7 [Article
7(g)].
Limitation of Liability in Time
- Bodily
injury caused by radioactive contamination may not become manifest for
some time after the exposure to radiation has actually occurred. The
legal period during which an action may be brought is therefore a matter
of great importance. Operators and their financial guarantors will naturally
be concerned if they have to maintain, over long periods of time, reserves
against outstanding or expired policies for possibly large but unascertainable
amounts of liability. On the other hand, it is unreasonable for victims
whose damage manifests itself late to find no provision has been made
for compensation to them.
A further complication is the difficulty of proof involved in establishing
or denying that delayed damage was, in fact, caused by the nuclear
incident. A compromise has necessarily been arrived at between the
interests of those suffering damage and the interests of operators.
A period of ten years running from the date of the nuclear incident
is provided, after which a right to compensation is extinguished if
no action has been brought before a competent court [Article
8(a)].
Where nuclear fuel or nuclear substances have been stolen, lost, jettisoned
or abandoned it is provided that, while the period of ten years is
to be calculated from the date of the nuclear incident, it shall in
no case exceed a period of twenty years from the date of the theft,
loss, jettison or abandonment [Article
8(b)]. It seems that insurers will not be able for the time being
to give cover for a period exceeding ten years from the date of the
theft, loss, jettison or abandonment of nuclear substances.
States may, however, establish a shorter period of not less than two
years running from the time when the damage and the operator liable
have become known to the victim or ought reasonably to have become
known, provided that the ten-year period is not exceeded [Article
8(c)]. This shorter period may constitute a conventional period of
prescription which may be suspended or interrupted even, where this
is recognized, by a mere extrajudiciary demand, provided always that
such suspension or interruption does not have the effect of prolonging
the period beyond ten or twenty years, as the case may be. On the
other hand, the shorter period may be an absolute period after which
no right to compensation exists.
Proceedings may also be brought after the ten-year period in two cases.
Firstly, if under the national legislation of the operator liable
his liability is covered for a longer period, the law of the competent
court may provide that proceedings may be brought during such longer
period. Any such extension of the period, however, may not affect
the rights of compensation under the Convention of any person who,
within the ten-year period, has brought an action against the operator
in respect of loss of life or personal injury [Article 8(a)]. Secondly,
a person who suffers an aggravation of the damage for which he has
already brought an action for compensation within the time-limit laid
down, may amend his claim after the expiry of the time-limit provided
that no final judgment has yet been entered by the competent court
[Article 8(e)].
The rules governing the choice of the competent court are laid down
in Article 13 (see paragraphs 54-56) and where the courts of more
than one Contracting Party might be competent, the competent court
is left to be determined by the European Nuclear Energy Tribunal [Article
13(c)(ii)]. In these cases a victim cannot bring his action until
the Tribunal has made its determination. In order to deal with this
situation, it is provided that the right to compensation shall not
be extinguished if, within the time-limits provided for in accordance
with the Convention, prior to the determination by the Tribunal, an
action has been brought before any of the courts from which the Tribunal
can choose or a request has been made to a Contracting Party to institute
a determination pursuant to Article
13(c)(ii) by the Tribunal and an action is brought subsequent
to such determination within the time, if any, fixed by the Tribunal
[Article 8(d)].
Exonerations
- The
absolute liability of the operator is not subject to the classic exonerations
such as force majeure, Acts of God or intervening acts of third persons,
whether or not such acts were reasonably foreseeable and avoidable.
Insofar as any precautions can be taken, those in charge of a nuclear
installation are in a position to take them, whereas potential victims
have no way of protecting themselves.
The only exonerations lie in the case of damage caused by a nuclear
incident directly due to certain disturbances of an international
character such as acts of armed conflict and hostilities, of a political
nature such as civil war and insurrection, or grave natural disasters
of an exceptional character, which are catastrophic and completely
unforseeable, on the grounds that all such matters are the responsibility
of the nation as a whole. No other exonerations are permitted. The
national legislation of the operator liable may, however, provide
that he is to be liable even in the case of a grave natural disaster
of an exceptional character [Article
9].
Where the incident or damage is caused wholly or partly by the person
suffering damage, it will be for the competent court, in accordance
with national law, to decide the effect of such negligence upon the
claim for compensation.
As has been pointed out (see paragraph 16), where the operator is
exonerated, if the applicable law so provides an individual may be
liable for damage caused by a nuclear incident resulting from that
individual's act or omission done with intent to cause damage.
Security for Liability
- To
meet liability towards victims, it is provided that the operator shall
be required to have and maintain financial security up to the maximum
amount established pursuant to Article 7 of the Convention [Article
10(a)]. Financial security may be in the form of conventional financial
guarantees or ordinary liquid assets, though more probably, insurance
coverage. A combination of insurance, other financial security and State
guarantee may be accepted. An operator may change the insurance or other
financial security, provided that the maximum amount is maintained.
Although the operator will thus be required to have financial security
available for each nuclear incident, in practice insurance coverage
will, it seems, only be available per installation for a fixed period
of time rather than in respect of a single incident. There is nothing
in the Convention which prevents this, provided that the maximum amount
available is not reduced or exhausted as a result of a first incident
without appropriate measures being taken to ensure that financial
security up to the maximum amount is available for subsequent incidents.
It is for the competent public authority to determine the type and
terms of the insurance or other financial security which the operator
will be required to hold. The type and terms envisaged do not imply
the establishment of a supervisory authority in the field of insurance
in those countries where control by such an authority over insurance
activities does not at present exist, but only the control necessary
to ensure compliance with the Convention. Thus the competent public
authority must ensure that insurance policies are satisfactory in
that they do not contain clauses which might render them ineffective,
for example, that the insurer or other financial guarantor cannot
put up any defences such as non-payment of premiums against persons
seeking compensation.
Whatever conditions are laid down by the competent public authority,
something untoward could happen, such as where the financial guarantor
is bankrupt, or where insurance is per installation for a fixed period
and after a first incident it is impossible to reinstate the financial
security up to the maximum liability of the operator. It was recognized
that these circumstances could not set aside the obligation of the
operator under Article 10 or that of the State which is required to
ensure that the operator always holds financial security up to his
maximum liability. The Contracting Parties may therefore be led to
intervene in such a situation to avoid their international responsibilities
being involved.
Where one operator operates two or more reactors or other nuclear
installations on a site, and the Contracting Party concerned has not,
pursuant to Article 1(a)(ii), determined that they shall be treated
as a single installation, that Contracting Party will nevertheless
have to decide whether it is necessary for the operator to have and
maintain insurance or other financial security for each of the nuclear
installations or for the site as a whole.
The guiding principle is that financial security must be available
in the amount established in accordance with Article 7 for each nuclear
incident, whatever system is adopted by the competent public authority
in regard to licensing and insurance of nuclear installations.
The relations between the operator and the insurer or other financial
guarantor, for example, with regard to rights of recourse against
the operator by these persons, are left to be settled by each State.
- To
ensure as far as possible that there will never be a period in which
less than the full amount fixed is available, it has been necessary
to provide that the financial security can only be suspended or cancelled,
i.e., brought to an end before the expiry of the period provided for
in the policy, after a period of at least two months' notice has been
given to the competent public authority. The competent public authority
may, of course, fix a longer period of notice. Where the financial security
is provided in respect of the operator's liability for nuclear incidents
occurring in the course of transport, the competent public authority
must be satisfied that the financial security is provided for the duration
of the liability of the operator in respect of any carriage, and, in
particular, that it cannot be suspended or cancelled before a transport
has been completed [Article
10(b)].
- All sums provided as financial security can only be drawn upon to
pay compensation for damage caused by a nuclear incident; they need
not be segregated but cannot be used to meet any other claims [Article
10(c)].
Nature, Form and Extent of Compensation
- Claims
for compensation following a nuclear incident may differ greatly in
nature, amounts and time, and measures may be necessary to ensure an
equitable distribution of the amount of compensation available if this
amount is or may be exceeded. It will be for the competent court, in
accordance with national law, to decide the nature, form and extent
of the compensation, within the limits of the Convention, as well as
equitable distribution [Article
11]. Thus, the granting of annuities and their amounts and, as has
already been noted, the effect on his claim to compensation of contributory
negligence on the part of a person suffering damage, will be directed
by national law.
It is for each State to decide whether measures for equitable distribution
should be taken in advance or at the time when actions are brought.
Measures may involve providing a limit per person suffering damage
or limits for damage to persons and damage to property.
Transfer of Compensation
- If
the system envisaged under the Convention - in particular the recognition
of a single competent forum to deal with all actions arising out of
the same nuclear incident and the enforceability of its judgments in
all Contracting Parties - is to be effective, it is necessary to ensure
that there are no impediments, for example, by way of exchange control
or other financial regulations. Therefore, it is laid down that insurance
and reinsurance premiums, sums which have to be paid out as insurance
or reinsurance, or other financial security, as well as sums due as
compensation and interest and costs, shall be freely transferable between
monetary areas of the Contracting Parties [Article
12]. This freedom to transfer in regard to insurance is not intended,
however, to affect national regulations governing insurance activities
such as, for example, the establishment of technical reserves.
Jurisdiction and Enforcement of Judgments
- There
are many factors motivating in favour of a single competent forum to
deal with all actions against the operator - including direct actions
against insurers or other guarantors and actions to establish rights
to claim compensation - arising out of the same nuclear incident. Most
important is the need for a single legal mechanism to ensure that the
limitation on liability is not exceeded. Moreover, if suits arising
out of the same incident were to be tried and judgments rendered in
the courts of several different countries, the problem of assuring equitable
distribution of compensation might be insoluble.
The general rule is that a court of the Contracting Party in whose
territory the nuclear incident occurs has jurisdiction [Article
13(a)].
- Special
arrangements are necessary in the case of a nuclear incident which occurs
outside the territory of a Contracting Party or where it is not possible
to determine with certainty the place of the nuclear incident. For example,
an incident may occur on the high seas or, where an incident is due
to continuous radioactive contamination in the course of transport,
it may not be possible to determine the place of such incident. Accordingly,
it is provided that the competent court in such incidents is the court
of the place where the installation of the operator liable is situated
[Article 13(b)].
Whilst there might be some practical disadvantages for the victims in
recourse to the jurisdiction of the operator as a result of the distance
involved, it has not been possible to find another solution which would
enable the victims to refer to their national courts and which would
at the same time secure unity of jurisdiction.
- If
the provisions relating to jurisdiction result in the courts of more
than one Contracting Party being competent, special rules have been
included to secure unity of jurisdiction.
Where the nuclear incident occurs partly outside the territory of
the Contracting Parties and partly within the territory of one of
them, a court of that one Contracting Party has jurisdiction [Article
13(c)(i)].
In any other case jurisdiction will lie with one of the courts which
would have been competent, determined, at the request of a Contracting
Party concerned, by the European Nuclear Energy Tribunal as being
the most closely related to the case in question [Article
13(c)(ii)].
- The
competent court in all cases is intended to deal with all actions which
might be brought against an operator, either directly by persons suffering
damage [under Article
3] or by other persons who might be liable under international agreements
in the field of transport or under the legislation of a non-Contracting
State [Article 6(d)
and (e)]. The forum
for actions in recourse by an operator under Article 6(f) or for actions
for contribution by an operator against other operators in the case
of joint and several liability is not fixed in the Convention and will
be decided by national law.
- The
concept of a single forum carries with it the need to ensure that final
judgments rendered in that forum will be recognized by and can be enforceable
in the other countries without re-examination of the merits. Hence such
final judgments will be enforceable in any of the other Contracting
Parties as soon as the formalities required have been complied with
[Article 13(d)].
Final judgments enforceable under Article
13(d) do not include judgments rendered against persons other
than the operator liable under Article
6(b), judgments rendered in actions in recourse by the operator
under Article 6(f),
actions against the operator under Article
6(h) or actions for contribution between persons jointly and severally
liable.
- Where
a Contracting Party is sued for compensation under the Convention, it
is provided that such Party may not invoke any jurisdictional immunities
which it might otherwise have, except in respect of measures of execution
[Article 13(e)].
Law Applicable
- The competent court must apply the provisions of the Convention without
any discrimination based upon nationality, domicile or residence [Article
14(a)] and for all matters, both substantive and procedural, not
governed by these provisions, the national law or legislation, including
rules of private international law, which are not affected by the Convention.
Such national law or legislation must also be applied without any discrimination
based upon nationality, domicile or residence [Article
14(c)].
Additional Compensation
- The
establishment of a limited liability necessarily involves a possible
reduction in compensation for damage suffered, and in the event of a
catastrophe it may well be that the limited amount of compensation available
is inadequate to meet all the claims. For social and psychological reasons
it seems difficult to accept this consequence without recognizing that
the intervention of the State may be necessary.
- Furthermore, it is recognized that in addition to any intervention
which may be necessary to ensure that the requirements of Article 10
with regard to financial security are fulfilled (see paragraph 49),
a Contracting Party may take such measures as it deems necessary to
provide for an increase in the amount of compensation specified in the
Convention [Article
15(a)] whether within the third party liability of the operator
or outside such liability. Where a Contracting Party takes measures
to provide for compensation above 5 000 000 SDRs in so far as it is
to be paid out of public funds, such measures, whether within the third
party liability of the operator or outside such liability, may be applied
under special conditions which derogate from the provisions of the Convention
and in particular need not be applied without discrimination to all
victims [Article 15(b)].
Hence, the Convention does not regulate the methods and means of application
of State intervention and the availability of additional compensation
above 5 000 000 SDRs out of public funds for foreign victims is left
to be dealt with outside the Convention.
The relations between the State and operators in so far as actions
by the State against its operators are concerned, are left to be settled
by each State.
Final Clauses
- The
final clauses of the Convention deal with disputes [Article
17], reservations [Article
18], ratification [Article
19], amendments [Article
20], accession [Article
21], duration, revision and withdrawal [Article
22], notification of the application of the Convention to territories
for whose international relations the Contracting Party is responsible
[Article 23], and
notice to the Signatories of receipt of the various instruments deposited
pursuant to the final clauses [Article
24]. In the case of disputes as to the interpretation of the Convention,
it is provided that these shall be examined by the Steering Committee
for Nuclear Energy and in the absence of friendly settlement shall,
upon the request of a Contracting Party concerned, be submitted to the
European Nuclear Energy Tribunal set up by the Security Control Convention
of 20th December 1957. The Tribunal will act in accordance with the
rules governing its organisation and functioning, which are set out
in the Protocol annexed to the Security Control Convention and in its
Rules of Procedure.
Notes
- An
international system of supplementary compensation by means of public
funds was established by the Convention of 31st January 1963 Supplementary
to the Paris Convention, as amended by the Additional Protocol of 28th
January 1964 and by the Protocol of 16th November 1982 (Brussels Supplementary
Convention). This system in no way prevents individual countries from
legislating to increase their own national compensation limit.
- On
25th April 1968, the Steering Committee for Nuclear Energy adopted an
interpretation according to which the Paris Convention should be understood
to apply to nuclear incidents occurring on the high seas and to damage
suffered on the high seas. Further, on 22nd April 1971, the Steering
Committee for Nuclear Energy recommended that: "The scope of application
of the Paris Convention should be extended by national legislation to
damage suffered in a Contracting State or on the high seas on board
a ship registered in the territory of a Contracting State, even if the
nuclear incident causing the damage has occurred in a non-Contracting
State."
- On
8th June 1967, the Steering Committee for Nuclear Energy adopted an
interpretation according to which the term "reactors" in the sense of
Article 1(a)(ii) of the Convention does not include sub-critical assemblies,
that is to say assemblies which are not capable of maintaining a self-sustaining
chain process.
- On
27th October 1977, the Steering Committee for Nuclear Energy adopted
two Decisions on the basis of Article 1(b) of the Convention. The first
is concerned with the exclusion, from the field of application of the
Convention, of small defined quantities of nuclear substances transported
or used outside a nuclear installation. The second deals with the exclusion,
from the field of application of the Convention, of certain categories
of nuclear substances (in particular reprocessed uranium) fulfilling
conditions established by the Decision (see paragraph 13).
- It
should be noted that a Convention on the Liability of Operators of Nuclear
Ships was adopted in Brussels on 25th May 1962. This Convention, however,
has not yet entered into force.
- On
8th June 1967, the Steering Committee for Nuclear Energy recommended
a model financial security certificate to the Signatory countries of
the Convention.
- This
situation has been the cause of practical difficulties in the field
of the insurance costs of the carriage by sea of nuclear substances;
that is why, in order to ensure that the operator of a nuclear installation
is liable, to the exclusion of all other persons, for damage caused
by a nuclear incident during such carriage, a Convention relating to
Civil Liability in the Field of Maritime Carriage of Nuclear Material
was adopted in Brussels on 17th December 1971.
- In
the seventies, the SDR developed as the financial unit of account of
the International Monetary Fund (IMF) and replaced in many international
Conventions the old units of account based on gold. The value of the
SDR is expressed in terms of a "basket" of some of the most important
world trading currencies. The SDR to which the Convention refers is
the "variable" SDR, that is to say the unit used by the IMF for its
current operations and transactions. Its value as against the national
currencies concerned is calculated and published daily by the IMF.
- A
recommendation adopted by the OECD Council on 16th November 1982 provides
that Contracting Parties which have legislated for such an option should
take steps to provide for the satisfying of any claim for compensation
in excess of the lower amount, up to a total of the amount of liability
of nuclear operators generally.
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