On 11 November 2007, a tanker, the Volgoneft 139, which was anchored in Kerch Strait while loaded with 4,077.20 mt of heavy fuel oil, broke in half. The oil spilled due to the vessel’s fore section sinking, leading to pollution of the marine and shore environment.

On 28 February 2008, a liability limitation fund of RUB 116,280,000 was constituted for the satisfaction of any claims against OAO Voljskoie Neftenalivnoie Parochodstvo (the shipowner) after the provision of a guarantee from the insurer of the shipowner, OSAO Ingosstrakh, in the amount of RUB 116,636,700.

There were three different issues for the Court to examine. First, the claim of the Rosprirodnadzor (the Federal Service of Supervision in the Sphere of Environmental Utilisation), which was composed of actual expenses from the incident in the sum of RUB 753,332.22, and additional damages to the environment calculated according to the Metodika (a statutory method of estimating the extent of direct damage, loss of profits, and consequential losses) in the sum of RUB 6,048,658,106. Second, the insurer’s argument of the characterisation of the natural phenomenon, which led to the vessel breaking in half, as being of an exceptional, inevitable, and irresistible character, and the subsequent non-liability of the shipowner. Third, the suggestion by the IOPC Fund to increase the sum of the fund for the limitation of liability from 3,000,000 units of account (under the CLC 1969) to 4,510,000 units of account (under the CLC Protocol 1992).

Held: The Court separated out the total sum of the claimed by Rosprirodnadzor. It declined to satisfy the application for estimated damages. The Court also refused the insurer's argument and the suggestion from the IOPC Fund.

Several third parties, as well as shipowner and insurer, argued against the satisfaction of Rosprirodnadzor's claim, supporting the inconsistency of this claim to the CLC 1969.

To justify its decision, the Court referred to art 3.1 of CLC 1992 and art 316 of the Code of Commercial Shipping of the Russian Federation (CCS-RF) in combination with art 316.2.5 of CCS-RF, which is identical to arts 1.6.a and 1.6.b of CLC 1992. Rosprirodnadzor's claims were not demands of remuneration of the expenses for the realisation of reasonable measures for the reinstatement of the environment, which were actually undertaken or will have to be undertaken. The Court did not receive any proof of the costs that Rosprirodnadzor had borne or will bear. Taking into account the expenses of the other claimants, the Court decided to refuse Rosprirodnadzor's claim of the sum of RUB 6,048,568,106 calculated with the use of Metodika.

As for the insurer's argument, the Court elaborated on art 3.2 of the CLC 1969 and art 317 of the CCS-RF, which have the same wording. The Court clarified that the meaning of 'exceptional' in the given case must be understood as a natural phenomenon, which had never happened before or had not been recorded in the specific region, or if it had been recorded, occurred a significant time ago, and its reoccurrence could not reasonably be expected.

The Court concluded that the insurer did not present proof that the damage was the consequence of a natural phenomenon which was exceptional in its character, inevitable, and irresistible. The evidence indicated that there was a warning to the ship regarding the weather forecast, and the master, trusting his experience, did not take all the necessary measures to avoid the shipwreck. In addition to that, a report provided by the IOPC Fund showed that similar wind had previously been observed in the Anapa port area four times. The Court thus considered that the bad weather was not an exceptional phenomenon. The bad weather was insurmountable for the tanker due to its constructional parameters, but it was not exceptional nor inevitable. There were adequate possibilities to prevent the vessel from being affected by the bad weather.

Lastly, regarding the suggestion from the IOPC Fund, the Court refused the request, despite the fact that arts 5.1, 5.3, 5.4, and 5.9 of CLC 1969 as amended by the CLC Protocol 1992 could also be found in arts 11.1, 320, and 322 of the CCS-RF. This was due to the fact that the amendments brought about by the CLC Protocol 1992 were published in the Gazette of International Agreements (2008, No 10, p 4) after the shipwreck, and the constitution of the liability limitation fund. They could therefore not be considered by the Court and applied in the present case.