Ewan McGaughey, ‘Liability for climate damage and shipping’

ABSTRACT
How can the global shipping industry play its part in the fight to stop climate damage? Shipping accounts for around 90% of all international trade, and for 2.5% to 4% of all global greenhouse gas emissions, which damage the Earth’s climate. The shipping industry is also heavily concentrated. The top four European firms alone (Maersk, MSO, CMA and Hapag-Lloyd) hold a 52.4% market share, meaning they probably generate from 1% to 2% of global emissions. Total emissions will decline, since 40% of all shipping cargo is coal, oil and gas, and this will be eliminated as energy generation and land transport comes from wind, solar, hydro and electric battery storage. However, this will leave substantial emissions that damage the climate, property and life. In 2012, the International Maritime Organisation announced a non-binding target of a 50% emission cut by 2050, while the EU Shipping Pollution Regulation 2015/757 merely contains a monitoring, reporting and verification system for carbon dioxide, but not other emissions. This leads to the question of whether liability for climate damage may encourage more rapid transition, with the elimination of fossil fuel exhausts as fast as technologically possible. This article discusses the developing case law in tort on liability for climate damage, an implicit director’s duty of care, the challenges that such action faces in common law and civil law, and the reasons that these challenges can be overcome.

McGaughey, Ewan, Liability for climate damage and shipping (February 10, 2021). Chapter in S Baughan, B Soyer and A Tettenborn (eds), Disruptive Technologies, Climate Change, and Shipping Law (2021) forthcoming.

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