Marine pollution damage in Australia: implementing the Bunker Oil Convention 2001 and the Supplementary Fund Protocol 2003

The grounding of the bulk carrier Pasha Bulker on Nobbys beach, Newcastle in June 2007 has again highlighted the risk from shipping posed to Australia’s extensive and environmentally fragile coastline. Whilst a pollution incident was averted in this case, spills from shipping in other states (such as the Nakhodka spill off Japan in 1997, the Prestige spill off France in 1999, the Erika spill off Spain in 2003 and the Hebei Spirit spill of South Korea in 2007), have required the constant monitoring and updating of the international regulatory regimes designed to prevent such incidents occurring and to provide compensation when they nevertheless do occur. Two recent additions to this international regulatory system are the Protocol on the Establishment of a Supplementary Fund for Oil Pollution Damage 2003, (the “Supplementary Fund Protocol 2003”) and the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (“the Bunker Oil Convention 2001”). In 2008, Australia gave effect to these instruments, enacting the Supplementary Fund Protocol via the Protection of the Sea Legislation Amendment Act 2008 (Cth), while the Bunker Oil Convention is given effect through the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth), and the Protection of the Sea (Civil Liability For Bunker Oil Pollution Damage) (Consequential Amendments) Act 2008 (Cth). The purpose of this article is to analyse these international instruments, describe how they came about, and explain the Australian implementation of them. In particular, consideration is given to the question of limitation of liability, especially the relationship between bunker pollution claims and the Convention on Limitation of Liability for Maritime Claims (LLMC) 1976, as amended in 1996

Criminally Bad Management

Because of their leverage over employees, corporate managers are prime targets for incentives to control corporate crime, even when managers do not themselves commit crimes. Moreover, the collective actions of corporate management — producing what is sometimes referred to as corporate culture — can be the cause of corporate crime, not just a locus of the failure to control it. Because civil liability and private compensation arrangements have limited effects on management behavior — and because the problem is, after all, crime — criminal law is often expected to intervene. This handbook chapter offers a functional explanation for corporate criminal liability: individual criminal liability cannot effectively address the relationship between senior managers and corporate crime but corporate criminal liability can, at least in part. Thus the practice of corporate criminal liability has grown and will continue to do so, at least in the absence of major restructuring of criminal law

Civil liability of credit rating agencies - regulatory all-or-nothing approaches between immunity and over-deterrence

The European Commission recently put forward a proposal for a regulation to amend and strengthen the 2009 version of the EU's rules on the regulation of credit rating agencies ("CRA3"). Among other things, Art. 35a of the draft proposal introduces strict liability for rating agencies. This liability proposal is at odds with the aim to strengthen competition in the rating sector and could have a chilling effect on capital markets. The paper analyses existing rules on civil liability of rating agencies under different legal systems. Subsequently, the provision under Art. 35a of the Draft Proposal is examinded more closely. Suggestions on possible improvemts of the proposal are made

What Developments in Western Europe Tell Us About American Critiques of Corporate Criminal Liability

Although corporate criminal liability has been recognized in the United States for nearly a century, contemporary academic commentators have questioned its legitimacy and argued that it is inferior to its alternatives: civil liability for the corporation and/or criminal liability for individual corporate agents. Other academic critics have attacked the present definitions of corporate criminal liability. In other words, although corporate criminal liability has also had its academic champions, it has been under attack in the United States. The situation in Europe poses a sharp contrast

Legal Luck

Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability

Hazardous Activities and Civil Strict Liability: The Regulator’s Dilemma

This paper addresses the conditions for setting up strict civil liability schemes. For that it compares the social efficiency of two main civil liability regimes usually enforced to protect the environment: the strict liability regime and the “capped strict liability scheme”. First, it shows that the regulator faces an effective dilemma when he has to enforce one of these schemes. This because the social cost of a severe harm (and the associated optimum care effort) is determined independently of any liability regime. This independency has economic consequences. First, victims and polluters pit one against another about the liability regime that the government should enforce. Hence, financially constrained polluters prefer the ceiling of responsibilities while victims wish to extend the amount of redress under a “standard” strict liability. Economic criteria for enforcing a regime rather than another one are lacking. Second, the paper shows that implementing civil strict liability rules may be done by setting up care standards as for instance in the nuclear or the maritime sectors and demanding to the injurers to comply with them. We show that this goal can be achieved by resorting to some friendly monitoring corresponding to frequent random controls with low fines rather than few controls that should involve heavy fines.Environment, Strict Liability, Ex-Ante Regulation, Ex-Post Liability, Judgment-Proof, Environment Law, CERCLA, Environmental Liability

Harmful Damage of Enhanced Danger: Economic and Legal Aspects

The article is devoted to the study of the legal nature of liability for damage caused by the source of enhanced danger. The conditions and grounds for liability for damage caused by a source of enhanced danger are considered. Determine the obligation to insure civil liability in obligations to compensate for damage caused by a source of enhanced danger. The scientific novelty is to analyze the national legislation on the legal regime of the source of high danger and to identify the elements of the danger of such sources.The article is devoted to the study of the legal nature of liability for damage caused by the source of enhanced danger. The conditions and grounds for liability for damage caused by a source of enhanced danger are considered. Determine the obligation to insure civil liability in obligations to compensate for damage caused by a source of enhanced danger. The scientific novelty is to analyze the national legislation on the legal regime of the source of high danger and to identify the elements of the danger of such sources

The possible effects of the new Hungarian Civil Code on the liability for damages of the healthcare service providers

The aim of my paper is to examine the possible changes by the new Civil Code of Hungary on the liability of the healthcare service providers. The liability system of the new Civil Code is much different at many points than the prior liability rules, it separates sharper the rules on torts and the rules on contractual liability, the liability of the damages caused by the breach of the contract is based on new, objective bases. The violation of personal rights is a frequently emerging problem in the health compensation procedures, so it is unavoidable to deal with the new sanction in the Code, the fee of injury too. In connection with the financing of the amounts for damages it is necessary to examine the obligatory liability insurance of the healthcare service providers and the main changes in the regulation of the liability insurance contracts of the new Civil Code

Protecting Government Defense Contracting with a Purpose: Interpreting Civil Liability Under the Anti-Kickback Act

The Department of Defense awards over $600 billion in government defense contracts to private contractors every year. The magnitude of these awards and the structure of defense contracts place the government at serious risk if fraud and misrepresentation are not adequately regulated and prosecuted. The Anti-Kickback Act of 1986 seeks to protect the government from fraud by imposing damages on prime contractors that either accept kickbacks or include the cost of kickbacks in their contract prices. The Act’s civil liability provision provides for direct and vicarious liability against prime contractor corporations whose employees or subcontractors engage in kickback activity. Recently, conflicting interpretations have surfaced regarding the extent of vicarious liability damages under the Act’s civil liability provision. This Note argues that the textual ambiguity and inconclusive legislative history surrounding the civil liability provision require that the provision be interpreted and applied in light of the Act’s purpose and goals. Accordingly, this Note argues that the civil liability provision should be interpreted to limit vicarious liability damages against prime contractor corporations. This interpretation satisfies the Act’s purpose and goals and avoids the substantial risks created by expanding vicarious liability damages. Most significantly, limiting vicarious liability damages appropriately protects the government’s interest, maintains the role of prime contractor corporations, and preserves the market for government defense contracts

Foreword

On October 27, 2017, the Stein Center for Law and Ethics in conjunction with the Fordham Law Review hosted a Colloquium entitled Access to Justice and the Legal Profession in an Era of Contracting Civil Liability. This issue of the Fordham Law Review publishes the articles prepared for that Colloquium. Traversing tort reform, constitutional rights, federal courts, civil procedure, and legal ethics, the small Colloquium was cross-disciplinary with a vengeance. Happily, these contributions from scholars around the country have now coalesced into a coherent whole. Although the Colloquium topic is not part of the access-to-justice movement as usually defined, it makes sense to say a few words in advance about access to justice because contracting civil liability is a complementary theme and, indeed, because the National Center for Access to Justice has recently joined Fordham Law School (and thus provided further impetus for exploring this critically important area). For the most art, the access-to-justice movement identifies the formal and informal barriers ordinary people must surmount in order to enforce their rights effectively and to be duly protected from civil and criminal liability. Lawyers, funding, information, evidence, physical access, legal aid asymmetries in representation—these are only the beginnings of the host of challenges most individuals face, barriers that have an especially marked impact for the poorest in our society. As substantive legal rights, powers, and protections expanded in the 1960s and1970s, profound limitations in the means to access to those rights became even clearer. To its enormous credit, the access-to-justice movement has begun to mobilize lawyers and judges. There is an increasing recognition that our special privileges as members of the bar and bench come with a responsibility to see to it that the legal system is serving society’s members tolerably well and to repair it where it is broken. It is therefore both appropriate and, now, unsurprising to see access-to-justice concerns as part of the academic field of professional responsibility and legal ethics