Photo of Jessie Elizabeth ShifaloPhoto of Emily von QualenPhoto of Clare M. Bienvenu

Most American maritime and environmental attorneys and vessel owners are familiar with OPA 90 and oil spill liability in the United States. But what happens when a vessel spills oil in the territorial waters of another country? As of June 2023, 146 countries have ratified or adopted the International Maritime Organization’s (“IMO”) International Convention on Civil Liability for Oil Pollution Damage, 1992 (the “CLC”). The CLC addresses civil liability for maritime oil spills.1 Notably, the United States is a member of the IMO, but it has not ratified the CLC. While there are many similarities between the CLC and OPA 90, there are also some significant differences, including when the act applies, what the limitations on liability are, how you can break limitations, and how you can lose your defenses to exoneration or limitation. One of the most glaring examples of the differences is the different limitations of liability for different sizes of vessels:

OPA 90

Vessel TypeVessel Size2023 Limit of Liability
Non-Tank VesselThe greater of $1,300 per gross ton or $1,076,000
Tank Vessel: Single Hull 2

1. >3,000/GRT1. The greater of $4,000 per gross ton or $29,591,300
Tank Vessel: Double Hull1. <3,000/GRT

2. >3,000/GRT
1. The greater of $2,500 per gross ton or $5,380,300
2. The greater of $2,500 per gross ton or $21,521,300

CLC 92

​Vessel Size2023 Limit of Liability3
​ <5,000/GRT4.51 million SDR ($5.78 million USD)
5,000 – 140,000/GRT4.51 million SDR  plus 631 SDR  for each additional gross ton over 5,000
>140,000/GRTLiability is limited to  89.77 million SDR ($122.29 million USD)
Special drawing rights (“SDR”) are supplementary foreign exchange reserve assets defined and maintained by the International Monetary Fund. In 2023, 1 SDR = $1.3623 USD.

The CLC applies to “sea-going vessel and seaborne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage.” 4 However, only ships carrying more than 2,000 tons of oil are required to carry insurance for oil pollution. Similar to OPA 90,  vessels required to carry insurance must carry enough to cover their potential liability for an oil spill.

The below table highlights the main differences between OPA 90 and the CLC:

Liable PartiesOwner, operator, bareboat charterer, or a third party whose sole action caused the oil spill.Registered owner (operator, manager, charterer are protected unless the pollution damage was caused by his willful misconduct)
Complete DefenseAct of war must be the sole cause

Act of God must be the sole cause
Act of war (no “sole cause” requirement)  

Act of God (no “sole cause” requirement)
Conditional DefenseAct of a third party – defense only if the Responsible Party exercised due care and took precautions against any foreseeable act of third party.Act of a third party
(must be the sole cause)
Government negligence
(must be the sole cause)
Responsible Party Denied Use of DefensesResponsible Party loses defense if he fails to:
1. Report a spill
2. Cooperate in response
3. Follow USCG orders
There are no enumerated reasons for the responsible party to be denied use of the conditional defenses in the CLC.
Limitation of Liability

(updated to 2023 values)
Up to approximately $29.6 million (see table above for more information)Up to approximately $122.29 million USD (see table above for more information)
Tests for Breaking Limitation1. Gross negligence or willful misconduct;
2.  Violation of a federal safety, construction, operation regulation; or
3.  Failure to
a. Report;
b. Cooperate;
c. Follow USCG Order.
“Personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result”
Scope of ApplicationAll types of vessels, all types of oils.Applies to vessels constructed for carrying persistent oil in bulk as cargo (essentially tankers).
Limitation Period/ Statute of LimitationsClaims must be raised to the responsible party at least 90 days before the expiration of the three-year limitation period.1. Within 3 years of the date when the damaged occurred
2. Within 6 years of the date of the incident which caused the damage.
Recoverable Damages1. Cleanup costs
2. Property damage,
3. Economic loss consequential on property damage
4. Pure economic loss
5. Natural resources damages
6. Natural resources damages assessment costs
7. Loss of subsistence use of natural resources
1. Cleanup costs
2. Property damage,
3. Economic loss consequential on property damage
4. Pure economic loss
5. Reasonable costs of restoring the damaged environment
Interaction with Other LawsNo pre-emption over State law – they work in conjunction as long as the State Laws are not less strict than OPA 90. Individual states may enact their own pollution prevention and liability laws that will also apply to vessels in their waters.

Preempts general maritime law.
CLC preempts other laws:
1. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with the CLC.
2. No claim for compensation for pollution damage under this Convention or otherwise may be made against operator, manager, charterer (including bareboat charterer) etc. (CLC Art.III.4)  

It should be noted that each adopting country may decide how the CLC interacts with its own laws and that an individual country may have laws that it determines preempt the CLC.

In summary, while OPA 90 and the CLC share many similarities, there are substantial differences that vessel owners and operators should be aware of. First, OPA 90 applies to all vessels while the CLC only applies to vessels carrying “persistent oil” as a cargo (i.e., tankers). Second, under the CLC, only the registered owner of a vessel is held civilly liable (unless the manager or charterer are shown to have caused the spill due to their willful misconduct), while under OPA 90 there are avenues to hold the party actually responsible for the spill regardless of willful misconduct. Third, the CLC also allows owners to raise act of war or act of God defenses without requiring them to show those were the sole cause of the spill. Fourth, as mentioned above, there are significant differences in the limitations of liability under the CLC v. OPA 90.  Fifth, the CLC as written allows claims to be brought for up to 6 years in some cases while OPA 90 has a strict three year statute of limitations and requires claims to be presented 90 days before that period ends. Sixth, OPA 90 allows for the recovery of damages for loss of use of natural resources while the CLC does not. These differences refer to how the CLC is written and enacted by the IMO. While they may not seem all that significant when reading about them on paper, in practice these differences can have major impacts on the civil liability exposure that a vessel owner faces. In the event of an oil spill in a country that has adopted the CLC, it is important to look at how that specific country has adopted the CLC and how it applies or interacts with that country’s laws.

For further questions regarding the topic of this blog, contact Liskow attorneys Jessie Shifalo, Emily von Qualen, and Clare Bienvenu.

Thank you to Environmental Pollution Group, LLC for their guidance regarding recent updates to OPA 90 liability limits.

1Most nations who have adopted the CLC as law have also adopted the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damages. This convention fills in the gaps of the CLC, and applies to “seagoing vessel and seaborne craft, of any type whatsoever,” when the CLC does not apply. The BUNKER Convention uses a wider definition of oil than the CLC, and employs its own insurance and limitation of liability schemes.

2 Single hulled tankers are not allowed to operate in the U.S. EEZ but are still included in the OPA limitation of liability figures.

3 This assumes the adopting country will apply the increased CLC Limitations of Liability from 2000 and not the 1992 limitations.

4 As mentioned in note 1, the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage helps to bridge this gap in liability in the CLC.

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