Xiaoqin Zhu: Professor of international law at the School of Law of Xiamen University, China. Ph.D(Xiamen)
Lin Dong: Ph.D. Candidate at the School of Oceanography and Environment, Xiamen Universtiy
China’s rapid economic development is the key to increasing number of activities to production output including marine transportation, oil exploration and exploitation, and marine fishery production. This has resulted in an increased risk of significant Page 392 accidental oil spills from ships. Additionally, with the rapidly growing consumption of oil, China has evolved into one of the largest importers of petroleum in recent years. In 2007, China imported nearly 200 million tons of petroleum.
Scholars have not yet succeeded in reaching a consensus on a uniform definition of the term “ecological damage.”Nonetheless, there are a number of scholars attempting to give the term an academic definition. For example, Dr. Lahnstein Christian has argued that “ecological damage is material damage to nature, specifically to earth, water, air, climate, landscape, flora and the fauna living in them, and to the interaction between them. It is also conspicuous man-made damage to the ecosystem and its component parts.”
According to academic jargon used by legislators and scholars, both in China and elsewhere, “ecological damage,” “pure ecological damage,” “damage to the environment per se,” “environmental damage,” “pure environmental damage,” “impairment of the environment”and “natural resource damage”are often used without significant Page 393 differentiation.
The terms “pure ecological damage,” “pure environmental damage”and “environmental damage” are usually used to refer to damage to the environment per se. Since environmental elements do not belong to any individual, after being defined as “pure” these damages do not include personal injury to victims or property damage.
China has already established legal remedies for marine ecological damage. According to Article 90, Section 2 of the MEPL:
[F]or damages to marine ecosystems, marine fishery resources and marine protected areas which cause heavy losses to the State, the department invested with power by the provisions of this law to conduct marine environment supervision and administration shall, on behalf of the State, put forward compensation demand to those held responsible for the damages.
However, this provision is too simple to work well in practice with the result of a large amount of practical confusion.
The Tasman Sea Case illustrates this point. The Tasman Sea, a Maltese tanker carrying 80,000 tons of crude oil, collided with a Chinese ship, the Shunkai No.1, in Bohai Bay on November 23, 2002. This accident caused a crude oil leakage of about 200 tons resulting in heavy environmental pollution in the Bohai Sea areas and posed a huge threat to the marine ecological environment. The event led to an oil pollution compensation lawsuit which lasted for two years and involved 10 cases including more than 1,500 plaintiffs and 170 million RMB.
After several trials, on December 30, 2004, two years after the accident, the Tianjin Maritime Court of China made the first trial judgment on the 10 cases related to the event.
The defendants were also held liable to the plaintiff, the Tianjin Fisheries and Fishing Port Supervision and Administration Agency, for more than 15 million RMB for the loss of fishery resources as well as more than 17 million RMB in compensation for 1,490 fishermen for their losses and damages. The final amount of compensation in this claim was more than 42.09 million RMB.
Another example involved a Portuguese tanker in the Arteaga case. Fully loaded with crude oil, the Arteaga accidentally struck a rock formation while entering Dalian New Port on April 3, 2005. Due to the collision, the tanker began leaking huge amounts of crude oil, which resulted in heavy pollution to the marine environment. A total of 104 sea-water aquaculture enterprises and fishermen nearby were affected and the parties lodged a compensation lawsuit with a maximum claim of one billion RMB. In May 2009, after more than three years of hearings, the 104 sea-water aquaculture enterprises and fishermen reached reconciliation with the defendant.
The frequency of oil pollution incidents is currently increasing in China’ s sea areas. It indicates that each case has the volume of oil leakage above one ton.
However, only a few lawsuits have resulted from such incidents. These lawsuits have often become long, drawn-out and unresolved cases. This phenomenon fully exposes the problem of the Chinese legal systems for compensation related to marine ecological damage. On the surface, the point of contention between parties to such lawsuits is the assessment of the value of marine ecology. However, there are also problems related to evidentiary procedures in civil lawsuits regarding compensation for marine ecological damage. In fact, it shows that China’s legal system related to compensation for marine ecological damage is not sound enough to carry out its purpose in practice. The problems, including the lack of relevant substantive law, such as the indeterminacy of the status of the litigant and the incompleteness of the measure of indemnity, lead to the severe consequence that nobody pays for marine ecologicalPage 396damage. As a result, the Chinese marine...