Outline Table of Contents

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1 Outline Table of Contents Introduction 1 Chapter 1: Pure economic loss in general 5 A. Introduction 5 B. Subject of the study 14 C. Pure economic loss under general private law 17 Chapter 2: Liability for pure economic loss in traditional maritime law...89 A. Common law maritime jurisdictions 89 B. Civil law regimes 104 C. Limitation of liability for maritime claims 109 D. Summary 112 Chapter 3: Recoverability of pure economic loss arising from ship-source oil pollution 115 A. Particularity of oil pollution torts 115 B. Categories of pure economic loss in oil pollution cases 119 C. Problem of pure economic loss in the law relating to ship-source oil pollution damage 122 Chapter 4: International criteria for the admissibility and assessment of claims for pure economic loss arising from ship-source oil spills 163 A. IOPC Funds Claims Manual 163 B. Guidelines on Oil Pollution Damage adopted by the Comité Maritime International 176 Chapter 5: THE PRACTICE OF Compensation for pure economic loss in ship-source oil pollution cases 181 A. The IOPC Funds 181 B. Member States of the IOPC Funds 227 C. The United States 243 D.China 248 E. Summary 250 Chapter 6: Concluding remarks 253 A. Recoverability of pure economic loss under general private law 253 B. Recoverability of pure economic loss under maritime law 257 C. Recoverability of pure economic loss under the law relating to ship-source oil pollution at sea 260 D. General remarks 263 Bibliografische Informationen digitalisiert durch

2 Detailed Table of Contents List of abbreviations xv INTRODUCTION 1 CHAPTER 1: PURE ECONOMIC LOSS IN GENERAL 5 A. INTRODUCTION 5 /. Notion and characteristics 5 II. Types of pure economic loss 7 1. Loss of prospective economic advantage 7 2. Transferred loss of actual economic harm 8 3. Loss caused by misstatements or inadequately performed services. 10 ///. Pure economic loss and other relevant concepts Pure economic loss vs. consequential economic loss Pure economic loss vs. loss of chance Pure economic loss vs. third party damage 14 IV. Summary 14 B. SUBJECT OF THE STUDY 14 /. Remedy in contract law 15 II. Intentionally caused pure economic loss 16 C. PURE ECONOMIC LOSS UNDER GENERAL PRIVATE LAW 17 /. Pure economic loss in Anglo-American law 17 I.England 17 a) Exclusionary rule against recovery for pure economic loss in claims for negligence 17 b) Challenging the economic loss doctrine 19 c) Reestablishment of the economic loss doctrine The United States 36 a) Economic loss doctrine 36 b) Exceptions to negligence claims for pure economic loss 40 aa) Negligent misstatement and professional negligence 40 bb) Negligent interference 43 cc) Oil pollution torts 45 //. Recovery for pure economic loss in civil law regimes Germany 49 a) Tort liability under the BGB 49 aa) Historical background 49

3 bb) Possibilities of recovery for pure economic loss in tort liability 50 (1) BGB 823 I 50 (2) BGB 823 II 56 (3) BGB b) Extended protection for pure economic interests in contract law 62 aa) Contractual obligations under the BGB before the Schuldrechtsmodernisierung 62 bb) Contractual obligations under the BGB after the Schuldrechtsmodernisierung 63 (1) Uniform concept of breach of duty 63 (2) Codified extension of contractual obligations France 65 a) Tort liability under the Code civil 66 b) Contractual obligations under the Code civil 69 aa) General provisions 69 bb) Extension of contractual obligations China 73 a) Tort liability 73 aa) Tort liability under the GPCL 74 bb) Tort liability under the Tort Law 75 b) Contractual obligations 82 aa) Contractual obligations under the GPCL 82 bb) Contractual obligations under the Contract Law 83 ///. Summary for the study of general private law 84 CHAPTER 2: LIABILITY FOR PURE ECONOMIC LOSS IN TRADITIONAL MARITIME LAW 89 A. COMMON LAW MARITIME JURISDICTIONS 89 /. Pure economic loss related to general average contribution 90 II. Pure economic loss related to charterers Time charters Voyage charters 97 ///. Pure economic loss incurred by third party contractors following damage to a vessel 99 IV. Pure economic loss resulting from situations known as "blocking cases" 101 B. CIVIL LAW REGIMES 104 /. Germany 104 II. France 106

4 C. LIMITATION OF LIABILITY FOR MARITIME CLAIMS 109 D. SUMMARY 112 CHAPTER 3: RECOVERABILITY OF PURE ECONOMIC LOSS ARISING FROM SHIP-SOURCE OIL POLLUTION 115 A. PARTICULARITY OF OIL POLLUTION TORTS 115 /. Marine environment 115 II. Substantial damage 116 III. Large number of parties involved. 117 IV. Asymmetric power of the parties 118 V. High degree of complexity 118 B. CATEGORIES OF PURE ECONOMIC LOSS IN OIL POLLUTION CASES 119 /. Fisheries, mariculture and fish processing sectors 120 II. Tourism sector 120 III. Shipping and port sectors 121 C. PROBLEM OF PURE ECONOMIC LOSS IN THE LAW RELATING TO SHIP- SOURCE OIL POLLUTION DAMAGE 122 /. International conventions Main liability regimes relating to ship-source oil pollution at sea Compensable economic loss under the main liability regimes 127 a) The 1984 definition of oil pollution damage 128 b) Definitions of damage in other liability regimes 132 //. The United States The OPA Federal maritime law Common law theories of recovery 140 III. China Background information International conventions in China 146 a) General introduction 146 aa) The CLC/Fund regime 146 bb) The Bunkers Convention 147 b) Application disputes National laws and regulations 152 a) General introduction 152 b) Possible remedies for pure economic loss arising from ship-source oil pollution Evaluation and conclusions 157

5 CHAPTER 4: INTERNATIONAL CRITERIA FOR THE ADMISSIBILITY AND ASSESSMENT OF CLAIMS FOR PURE ECONOMIC LOSS ARISING FROM SHIP-SOURCE OIL SPILLS 163 A. IOPC FUNDS CLAIMS MANUAL 163 /. Historical background Pure economic loss Preventive measures taken to prevent or minimise pure economic loss 167 //. Claims Manual Claims for pure economic loss in the fisheries, mariculture and fish processing sectors Claims for pure economic loss in the tourism sector Claims for costs of measures to prevent pure economic loss 174 B. GUIDELINES ON OIL POLLUTION DAMAGE ADOPTED BY THE COMITÉ MARITIME INTERNATIONAL 176 CHAPTER 5: THE PRACTICE OF COMPENSATION FOR PURE ECONOMIC LOSS IN SHIP-SOURCE OIL POLLUTION CASES 181 A. THE IOPC FUNDS 181 /. Claims for economic loss in the fisheries, mariculture and fish processing sectors Loss as a result of reduced natural stocks of marine products Loss as a result of interruption of or reduction in fishing or harvesting activities Loss as a result of shortages offish supply Loss of market as a result of reduced prices and/or sales Costs of measures to prevent pure economic loss Loss of income for the employee/employer Loss of income from unlicensed activities Loss of income for claimants providing goods or services to the fisheries, mariculture and fish processing sectors 205 a) Claims by self-employed fish porters and net makers 206 b) Claims by suppliers of smolt or feed to fish farms 206 c) Claims by haulage and transport companies 207 d) Claims by other suppliers 208 //. Claims for economic loss in the tourism sector Loss of income for hotels, restaurants, shops and other tourist establishments 210 a) Claims related to businesses within the affected area 210 b) Claims related to businesses outside the affected area 214

6 2. Costs of promotion of tourism Loss as a result of reduced tourism tax revenue Loss of income for claimants providing goods or services to the tourism sector 220 ///. Claims for economic loss in the shipping and port sectors Loss as a result of delay and claims for demurrage Loss as a result of reduced volume of freight and suspension of service Loss of earnings as a result of diversion of shipping 226 B. MEMBER STATES OF THE IOPC FUNDS 227 /. Civil law jurisdictions The Aegean Sea case The Erika case 229 a) Tour operator 230 b) Cancellation of millennium party 231 c) Food products merchant Conlcusions 233 //. Common law jurisdiction The Landcatch case The Tilbury case Conlcusions 241 C. THE UNITED STATES 243 I.Pre-OPA II. After-OPA D.CHINA 248 E. SUMMARY 250 CHAPTER 6: CONCLUDING REMARKS 253 A. RECOVERABILITY OF PURE ECONOMIC LOSS UNDER GENERAL PRIVATE LAW 253 B. RECOVERABILITY OF PURE ECONOMIC LOSS UNDER MARITIME LAW 257 C. RECOVERABILITY OF PURE ECONOMIC LOSS UNDER THE LAW RELATING TO SHIP-SOURCE OIL POLLUTION AT SEA 260 D. GENERAL REMARKS 263 BIBLIOGRAPHY 265