Interpretation
3. (1) In this Act, unless the contrary intention appears—
“applied provisions of the Convention” means the provisions of the Convention that, by virtue of section 8, have the force of law as part of the law of the Commonwealth;
“Australia” includes the external Territories;
“Civil Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage (a copy of the English text of which is set forth in Schedule 1);
“country to which the Civil Liability Convention applies” means a country or territory specified in a notice under section 6;
“Protocol” means the Protocol to the International Convention on Civil Liability for Oil Pollution Damage, 1969 (a copy of the English text of which is set forth in Schedule 2);
“the Convention” means—
(a) if the Protocol comes into force for Australia on or before the date on which this Act comes into operation—the Civil Liability Convention as amended by the Protocol; or
(b) in any other case—the Civil Liability Convention or, on and after the date on which the Protocol comes into force for Australia, the Civil Liability Convention as amended by the Protocol.
(2) Except in so far as the contrary intention appears, an expression that is used in either Part II or Part III and in the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in that Part, the same meaning as in the Convention.
Act to bind Crown
4. This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.
Operation of Act
5. This Act applies both within and outside Australia and extends to every external Territory.
Declaration of countries to which Civil Liability Convention applies
6. The Minister may, by notice published in the Gazette, declare that, for the purposes of this Act, a country or territory, other than Australia, specified in the notice is a country or territory to which the Civil Liability Convention applies.
PART II—LIABILITY AND LIMITATION OF LIABILITY UNDER CONVENTION
Application of Part
7. (1) Subject to sub-section (2), the provisions of this Part do not apply in relation to a ship as defined by sub-section (4) to the extent that a law of a State or of the Northern Territory makes provision giving effect to the applied provisions of the Convention in relation to that ship.
(2) Sub-section (1) does not apply in respect of an incident to which Article IV of the Convention applies involving a ship or ships as defined by sub-section (4) and a ship that is not a ship, or ships that are not ships, as defined by sub-section (4).
(3) The reference in sub-section (1) to the provisions of this Part shall be construed as including a reference to the applied provisions of the Convention and the provisions of any regulations made for the purposes of section 12.
(4) In sub-sections (1) and (2), a reference to a ship as defined by this sub-section shall be construed as a reference to a ship that is—
(a) a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage; or
(b) an Australian fishing vessel proceeding on a voyage other than an overseas voyage.
(5) For the purposes of sub-section (4)—
(a) “trading ship”, “inter-State voyage” and “Australian fishing vessel” have the same respective meanings as they have in the Navigation Act 1912;
(b) “overseas voyage” has the same meaning as it has in the Navigation Act 1912 except that a voyage of an Australian fishing vessel, being a ship that is regularly engaged in making voyages from a port or ports in Queensland, commencing at a port in that State and ending at the same port or another port in that State shall not be taken to be an overseas voyage by reason only that, as an incidental part of its fishing operations on that voyage, the ship calls at a port or ports in Papua New Guinea; and
(c) a ship shall be deemed to be proceeding on a voyage from the time when it has got under way for the purpose of proceeding on the voyage until the time when it has got under way for the purpose of proceeding on another voyage.
Certain provisions of Convention to have the force of law
8. (1) The following provisions of the Convention have the force of law as part of the law of the Commonwealth:
Articles I to VI (inclusive), paragraphs 1, 8 and 9 of Article VII, Article VIII, paragraphs 1 and 3 of Article IX, paragraph 1 of Article XI.
(2) For the purposes of paragraph 1 of Article VII of the Convention as so having the force of law, that paragraph shall be treated as requiring the owner of a ship referred to in that paragraph, being a ship registered in Australia, to maintain the insurance or other financial security referred to in that paragraph.
Claims for compensation
9. The Supreme Courts of the States are invested with federal jurisdiction, and jurisdiction, to the extent that the Constitution permits, is conferred on the Supreme Courts of the Territories, to hear and determine claims for compensation under the applied provisions of the Convention in respect of incidents—
(a) that have caused pollution damage in Australia; or
(b) in relation to which preventive measures have been taken to prevent or minimize pollution damage in Australia.
Applications to determine limit of liability
10. (1) Where a claim for compensation under the applied provisions of the Convention is made in the Supreme Court of a State or Territory against, or is apprehended by, the owner of a ship, or the insurer or other person providing financial security for the liability of the owner of a ship for pollution damage, the owner, the insurer or that other person, as the case may be, may apply—
(a) in a case where a claim for compensation under the applied provisions of the Convention has been made in the Supreme Court of a State or Territory—to that Court; or
(b) in any other case—to the Supreme Court of any State or the Supreme Court of any Territory having jurisdiction under this sub-section,
to determine whether he may limit his liability under the applied provisions of the Convention and, if so, the limit of that liability.
(2) Where the Supreme Court of a State or Territory determines that a person may limit his liability under the applied provisions of the Convention, the Court may make such orders as it thinks fit with respect to the apportionment and distribution, in accordance with those provisions, of a fund for the payment of claims under those provisions.
(3) The Supreme Courts of the States are invested with federal jurisdiction, and, jurisdiction, to the extent that the Constitution permits, is conferred on the Supreme Courts of the Territories, to hear and determine proceedings under this section.
Transfer of proceedings
11. (1) The Supreme Court of a State or Territory in which a claim for compensation has been made under the applied provisions of the Convention, or in which proceedings under section 10 have been instituted, may, if the Court thinks fit, at any stage in the proceedings, upon application or of its own motion, by order, transfer the proceedings to another Supreme Court.
(2) Where proceedings are transferred from a Supreme Court in pursuance of sub-section (1)—
(a) all documents filed, and moneys or guarantees lodged, in that Court in those proceedings shall be transmitted by the Registrar or other proper officer of that Court to the Registrar or other proper officer of the Court to which the proceedings are transferred; and
(b) the Court to which the proceedings are transferred shall proceed as if the proceedings had been originally instituted in that Court and as if the same proceedings had been taken in that Court as had been taken in the Court from which the proceedings were transferred.
Regulations giving effect to applied provisions of Convention, &c.
12. (1) The regulations may prescribe matters that are necessary or convenient to be prescribed for the purpose of carrying out or giving effect to the applied provisions of the Convention and, for or in connection with that purpose, may make provision for and in relation to—
(a) the conversion of the amounts of money referred to in paragraph 1 of Article V of the Convention into amounts of money expressed in the currency of Australia;
(b) the kinds of guarantees that are acceptable for the purposes of paragraph 3 of Article V of the Convention;
(c) the extent to which the right of subrogation provided for in paragraph 5 of Article V of the Convention may be exercised by a person other than a person referred to in that paragraph; and
(d) the ascertainment of the tonnage of a ship, including the estimation of the tonnage of a ship in circumstances where it is not possible or reasonably practicable to measure its tonnage.
(2) Sub-section (1) shall not be taken as limiting the power of a judge or judges of the Supreme Court of a State or Territory to make rules of court with respect to a matter that is not provided for in the applied provisions of the Convention or in regulations made by virtue of that sub-section.
PART III—INSURANCE CERTIFICATES RELATING TO LIABILITY FOR POLLUTION DAMAGE
Interpretation
13. (1) In this Part, “Government ship” means a ship (including a warship) owned by a country, and includes a ship owned by the Commonwealth or by a State.
(2) In this Part—
(a) a reference to a contract of insurance, or other financial security, in respect of a ship shall be construed as a reference to a contract of insurance, or other financial security, covering the liability of the owner of the ship under the applied provisions of the Convention for pollution damage caused in Australia or on the territory, including the territorial sea, of a country to which the Civil Liability Convention applies;
(b) a reference to the limits of the liability prescribed by paragraph 1 of Article V of the Convention, in relation to a ship, shall be construed as a reference to the amount to which the owner of the ship is entitled, under that paragraph, in its application to the ship as part of the law of the Commonwealth, to limit his liability under the Convention in respect of any one incident;
(c) a reference to a State shall be construed as including a reference to the Northern Territory.
Application
14. (1) Subject to sub-section (2), this Part applies to every ship that is carrying more than 2,000 tons of oil in bulk as cargo and, where such a ship is unregistered, this Part applies to and in relation to the ship as if it were registered in the country whose flag the ship is flying.
(2) This Part does not apply to a Government ship, other than a Government ship that is being used for commercial purposes.
Insurance certificates to be carried on certain ships
15. (1) Where a ship to which this Part applies enters or leaves, or attempts to enter or leave, a port in Australia, or arrives at, or leaves, or attempts to arrive at or leave, a terminal in the territorial sea of Australia, without carrying on board the ship a relevant insurance certificate in respect of the ship, being such a certificate that is in force, the master and owner of the ship are each guilty of an offence against this sub-section punishable, upon conviction, by a fine not exceeding—
(a) in the case of the master—$50,000;
(b) in the case of the owner, if the owner is not a body corporate— $50,000; and
(c) in the case of the owner, if the owner is a body corporate—$100,000.
(2) Where a ship to which this Part applies, being a ship registered in Australia, enters or leaves, or attempts to enter or leave, a port in a country other than Australia, or arrives at, or leaves, or attempts to arrive at or leave, a terminal in the territorial sea of a country other than Australia, without carrying on board the ship a relevant insurance certificate in respect of the ship, being such a certificate that is in force, the master and owner of the ship are each guilty of an offence against this sub-section punishable, upon conviction, by a fine not exceeding—
(a) in the case of the master—$50,000;
(b) in the case of the owner, if the owner is not a body corporate— $50,000; and
(c) in the case of the owner, if the owner is a body corporate—$100,000.
(3) Where, otherwise than in circumstances to which sub-section (1) applies or, in the case of a ship registered in Australia, to which sub-section (2) applies, at any time a relevant insurance certificate is in force in respect of a ship to which this Part applies and is not carried on board the ship, the master and owner of the ship are each guilty of an offence against this sub-section punishable, upon conviction, by a fine not exceeding—
(a) in the case of the master—$2,000;
(b) in the case of the owner, if the owner is not a body corporate—$2,000; and
(c) in the case of the owner, if the owner is a body corporate—$5,000.
(4) An officer may require the master or other person in charge of a ship to which this Part applies to produce a relevant insurance certificate in respect of the ship, being such a certificate that is in force, and, if he refuses or fails to produce the certificate to the officer, he is guilty of an offence against this sub-section punishable, upon conviction, by a fine not exceeding $2,000.
(5) Where an officer has reasonable grounds to believe that the master or other person in charge of a ship to which this Part applies is attempting to take the ship out of a port in Australia at a time when a relevant insurance certificate in respect of the ship, being such a certificate that is in force, is not being carried on board the ship, he may detain the ship until such time as such a certificate is obtained or produced to him, as the case requires.
(6) This section is not intended to exclude or limit the concurrent operation of a provision of a law of a State giving effect to paragraphs 1, 2 and 3 of Article VII of the Convention in relation to a ship as defined by sub-section 7 (4).
(7) For the purposes of this section, a relevant insurance certificate in respect of a ship is—
(a) if the ship is registered in Australia and is not a Government ship—
(i) in the case of a ship other than a ship as defined by sub-section 7 (4)—a certificate issued under section 16 in respect of the ship; or
(ii) in the case of a ship as defined by sub-section 7 (4)—a certificate issued under section 16 in respect of the ship or a certificate issued in respect of the ship under a law of a State that makes provision giving effect to paragraphs 1, 2 and 3 of Article VII of the Convention in relation to that ship;
(b) if the ship is registered in a country to which the Civil Liability Convention applies and is not a Government ship—a certificate issued, for the purposes of Article VII of the Convention, by or under the authority of the Government of that country;
(c) if the ship is registered in a country that is not a country to which the Civil Liability Convention applies and is not a Government ship—a certificate issued under section 16 or a certificate that is, under the regulations, to be taken to be a relevant insurance certificate in respect of the ship for the purposes of this paragraph;
(d) if the ship is owned by the Commonwealth—a certificate issued under section 18 in respect of the ship; or
(e) if the ship is owned by a State—
(i) a certificate issued under section 18 in respect of the ship; or
(ii) a certificate issued under a provision of the law of the State that makes provision in relation to ships owned by the State that corresponds with the provisions of section 18 in relation to ships owned by the Commonwealth; or
(f) if the ship is owned by the Government of a country other than Australia—a certificate of a kind referred to in sub-section 18 (1) issued by the Government of that country.
(8) In this section, “officer” means—
(a) an officer of Customs within the meaning of the Customs Act 1901;
(b) a surveyor appointed under section 190 of the Navigation Act 1912; or
(c) a person included in a class of persons declared by the regulations to be a class of officers for the purposes of this section.
Issue of insurance certificates
16. (1) The owner, master or agent of a ship to which this Part applies, being a ship that is registered in Australia or in a country that is not a country to which the Civil Liability Convention applies, may make application to the Minister for the issue of an insurance certificate in respect of the ship.
(2) An application under sub-section (1)—
(a) shall be in accordance with the prescribed form; and
(b) shall be lodged with a person who is a prescribed person for the purposes of this sub-section.
(3) Where application is made to the Minister under sub-section (1) in respect of a ship, the Minister shall—
(a) if he is satisfied that the owner of the ship is maintaining insurance or other financial security in respect of the ship in an amount that will cover the limits of liability prescribed by paragraph 1 of Article V of the Convention in relation to the ship—issue to the applicant an insurance certificate in respect of the ship; or
(b) if he is not so satisfied—refuse to issue such a certificate in respect of the ship.
(4) An insurance certificate issued under sub-section (3) in respect of a ship—
(a) shall be in accordance with the prescribed form, being a form which contains, but is not limited to containing, the particulars specified in paragraph 2 of Article VII of the Convention;
(b) comes into force on the day on which it is issued; and
(c) remains in force, subject to this Part, until the expiration of the day specified in the certificate as the day until which it is to remain in force, being—
(i) the day that is the last day in the period of 12 months commencing on the day on which the certificate is issued; or
(ii) the day that the Minister is satisfied is the last day in the balance of the period during which the insurance or other financial security in respect of the ship is to remain in force,
whichever is the earlier day.
(5) Such fees (if any) as are prescribed are payable in respect of the issue of an insurance certificate in respect of a ship under this section.
(6) Where an insurance certificate is issued under this section in respect of a ship registered in Australia, the Minister shall cause a copy of the certificate to be forwarded to a person who is a prescribed person for the purposes of this sub-section.
Extension, cancellation and lapsing of insurance certificates
17. (1) Where—
(a) a ship in respect of which an insurance certificate has been issued under section 16 is not at a port in Australia at the time when the certificate expires or is about to expire; and
(b) the Minister is satisfied that, after the day specified in the certificate as the day until which it is to remain in force, there will be in force a contract of insurance or other financial security in respect of the ship in an amount that will cover the limits of liability prescribed by paragraph 1 of Article V of the Convention in relation to the ship,
the Minister may, if it appears proper and reasonable for him to do so, extend the certificate for a period that expires on or before the day that the Minister is satisfied is the last day in the balance of the period during which that contract of insurance or other financial security is to remain in force, being a period that does not exceed one month from the day referred to in paragraph (b).
(2) An extension of an insurance certificate under sub-section (1) is of no further force or effect after the arrival of the ship at a port in Australia.
(3) The Minister may cancel an insurance certificate issued under section 16 that is in force in respect of a ship if he is satisfied that, by reason of any modification or variation of, or to, the contract of insurance or other financial security in respect of the ship, the owner of the ship will not be covered for an amount that is not less than the limits of liability prescribed by paragraph 1 of Article V of the Convention in relation to the ship.
(4) If, while an insurance certificate issued under section 16 in respect of a ship registered in Australia or in a country that is not a country to which the Civil Liability Convention applies is in force, the ship ceases to be registered in Australia or in that country, as the case may be, the certificate so issued thereupon ceases to be in force.
(5) Where an insurance certificate issued under section 16 in respect of the ship is cancelled under sub-section (3) or ceases to be in force by virtue of sub-section (4), the master shall forthwith cause the certificate to be lodged with a person referred to in paragraph 16 (2) (b).
Penalty: $2,000.
Government ships
18. (1) Where a ship is owned by the Commonwealth or by a State, the Minister may issue—
(a) in the case of a ship owned by the Commonwealth—a certificate certifying that the ship is owned by the Commonwealth and that any liability for pollution damage up to the limits of liability applicable in relation to the ship under Article V of the Convention will be met by the Commonwealth; or
(b) in the case of a ship owned by a State—a certificate certifying—
(i) that the ship is owned by the State; and
(ii) if the Minister is satisfied that any liability for pollution damage up to the limits of liability applicable in relation to the ship under Article V of the Convention will be met by the State— that any such liability will be so met by the State.
(2) Subject to sub-section (3), a certificate issued under sub-section (1) remains in force for such period as is specified in the certificate.
(3) If, while a certificate issued under sub-section (1) in respect of a ship owned by the Commonwealth or by a State is in force, the ship ceases to be owned by the Commonwealth or by the State, as the case may be, the certificate so issued thereupon ceases to be in force.
(4) Every country to which the Civil Liability Convention applies shall, in any proceedings brought in a court in Australia to enforce a claim in respect of a liability incurred under the applied provisions of the Convention, be deemed to have submitted to the jurisdiction of that court and to have waived any defence based on its status as a sovereign country, but nothing in this subsection shall permit the levy of execution against the property of such a country.
Applications for review
19. Applications may be made to the Administrative Appeals Tribunal for review of—
(a) a refusal to issue an insurance certificate in respect of a ship under section 16; or
(b) the cancellation of an insurance certificate in respect of a ship under sub-section 17 (3).
PART IV—RECOVERY OF EXPENSES OF MINISTER UNDER PROTECTION OF THE SEA (POWERS OF INTERVENTION) ACT 1981
Expenses, &c., incurred by Minister debt due to Commonwealth
20. (1) Subject to this section, where the Minister incurs any expense or other liability in, or by reason of, the exercise of his powers under section 8, 9 or 10 of the Protection of the Sea (Powers of Intervention) Act 1981 in respect of an incident, the amount of that expense or other liability is—
(a) if that expense or other liability was incurred in, or by reason of, the exercise of those powers in relation to a single ship—a debt due to the Commonwealth by the owner of that ship; or
(b) if that expense or other liability was incurred in, or by reason of, the exercise of those powers in relation to 2 or more ships—a debt due to the Commonwealth jointly and severally by the owners of those ships.
(2) Sub-section (1) does not apply in relation to the owner of a ship in respect of an incident referred to in that sub-section where the owner proves that the incident—
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character;
(b) was wholly caused by an act or omission done by a third party with intent to cause damage; or
(c) was wholly caused by the negligence or other wrongful act of any government, or other authority, responsible for the maintenance of lights or other navigational aids in the exercise of its functions in relation to those lights or aids.
(3) Subject to sub-section (6), where an incident referred to in sub-section (1) did not occur as a result of the actual fault or privity of the owner of a ship, the liability of the owner of the ship under sub-section (1) in respect of the incident shall not exceed—
(a) an amount calculated by multiplying the amount prescribed for the purposes of this paragraph by the tonnage factor applicable in relation to the ship; or
(b) the amount prescribed for the purposes of this paragraph, whichever is the lesser.
(4) A debt due to the Commonwealth by a person by virtue of this section may be recovered from the person in any court of competent jurisdiction.
(5) This section does not apply in relation to pollution damage within the meaning of the Convention.
(6) Nothing in this section shall be taken to affect the operation of Part VIII of the Navigation Act 1912.
(7) In this section—
“adjusted register tonnage”, in relation to a ship, means the number of tons that would be the register tonnage of the ship if, in ascertaining that tonnage by reference to the gross tonnage of the ship in accordance with the normal rules for measuring the tonnage of ships, no deduction were made from the gross tonnage of the ship in respect of engine-room space;
“incident” means an occurrence, or a series of occurrences having the same origin;
“owner”, in relation to a ship in respect of an incident, means the owner of the ship at the time of the incident or, if the incident consists of a series of occurrences having the same origin, at the time of the first of the occurrences;
“third party”, in relation to a ship, means any person other than—
(a) the owner of the ship;
(b) a servant or agent of the owner of the ship; or
(c) the master, an officer or any other member of the crew of the ship or of any other ship also owned by the owner of the ship;
“tonnage factor”, in relation to a ship, means a number equal to the number of tons included in the adjusted register tonnage of the ship or, if the adjusted register tonnage of the ship cannot be ascertained by reason that the ship cannot be measured in accordance with the normal rules for measuring the tonnage of a ship, such number as is ascertained in relation to the ship in accordance with the regulations.
Expenses, &c., incurred by Minister charge on ship
21. The amount—
(a) that the owner of a ship is liable, or the owners of 2 or more ships are jointly and severally liable, under the applied provisions of the Convention, to pay to the Commonwealth by way of compensation for any expense or other liabilities incurred by the Minister in, or by reason of, the exercise of his powers under section 8, 9 or 10 of the Protection of the Sea (Powers of Intervention) Act 1981; or
(b) that the owner of a ship is liable, or the owners of 2 or more ships are jointly and severally liable, to pay to the Commonwealth under section 20,
is a charge on that ship, or on each of those ships, as the case may be.
Detention of ships
22. (1) Subject to sub-section (2), where an amount is, by virtue of section 21, a charge on a ship, the ship may be detained by a person authorized in writing by the Minister for the purposes of this section and may be so detained until the amount is paid or security for the payment of the amount is provided to the satisfaction of the Minister.
(2) Sub-section (1) does not apply in relation to a foreign ship unless the ship is in Australian waters.
(3) Where a ship that has been detained under this section goes to sea before it is released from detention, the master and owner of the ship are each guilty of an offence against this sub-section punishable, upon conviction—
(a) in the case of the master—by a fine not exceeding $5,000 or imprisonment for a term not exceeding 2 years, or both;
(b) in the case of the owner, if the owner is not a body corporate—by a fine not exceeding $5,000 or imprisonment for a term not exceeding 2 years, or both; or
(c) in the case of the owner, if the owner is a body corporate—by a fine not exceeding $10,000.
(4) In this section—
“Australian waters” means—
(a) the territorial sea of Australia; and
(b) the sea on the landward side of the territorial sea of Australia;
“foreign ship” means a ship—
(a) that is not registered in Australia; and
(b) that does not have Australian nationality.
PART V-MISCELLANEOUS
Prosecution of offences against sub-sections 15 (1) and (2) and 22 (3)
23. (1) Subject to sub-section (2), an offence against sub-section 15 (1) or (2) or 22 (3) is an indictable offence.
(2) Notwithstanding that an offence referred to in sub-section (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(3) Where, in accordance with sub-section (2), a court of summary jurisdiction convicts a person of an offence referred to in sub-section (1), the penalty that the court may impose is a fine not exceeding—
(a) in the case of a person, not being a body corporate—$2,000; and
(b) in the case of a person, being a body corporate—$5,000.
No time limit for prosecution
24. A prosecution for an offence against this Act may be brought at any time.
Regulations to give effect to Article X of Convention
25. (1) The regulations may make provision for and in relation to giving effect to Article X of the Convention including—
(a) provision for investing the Supreme Courts of the States with federal jurisdiction, and conferring, to the extent that the Constitution permits,
jurisdiction on the Supreme Courts of the Territories, with respect to matters arising under regulations made by virtue of this section; and
(b) provision fixing fees to be paid in respect of any matters under regulations made by virtue of this section.
(2) Sub-section (1) shall not be taken as limiting the power of a judge or judges of the Supreme Court of a State or Territory to make rules of court with respect to a matter that is not provided for in regulations made by virtue of that sub-section.
Delegation
26. (1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person any of his powers under this Act, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.
(3) A delegation under this section does not prevent the exercise of a power by the Minister.
Regulations
27. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
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SCHEDULE 1 Section 3
INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE
The States Parties to the present Convention,
CONSCIOUS of the dangers of pollution posed by the worldwide maritime carriage of oil in bulk,
CONVINCED of the need to ensure that adequate compensation is available to persons who suffer damage caused by pollution resulting from the escape or discharge of oil from ships,
DESIRING to adopt uniform international rules and procedures for determining questions of liability and providing adequate compensation in such cases,
HAVE AGREED as follows:
ARTICLE I
For the purposes of this Convention:
1. “Ship” means any sea-going vessel and any seaborne craft of any type whatsoever, actually carrying oil in bulk as cargo.
2. “Person” means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.
3. “Owner” means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, “owner” shall mean such company.
4. “State of the ship’s registry” means in relation to registered ships the State of registration of the ship, and in relation to unregistered ships the State whose flag the ship is flying.
5. “Oil” means any persistent oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil, whether carried on board a ship as cargo or in the bunkers of such a ship.
6. “Pollution damage” means loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and includes the cost of preventive measures and further loss or damage caused by preventive measures.
7. “Preventive measures” means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.
8. “Incident” means any occurrence, or series of occurrences having the same origin, which causes pollution damage.
9. “Organization” means the Inter-Governmental Maritime Consultative Organization.
ARTICLE II
This Convention shall apply exclusively to pollution damage caused on the territory including the territorial sea of a Contracting State and to preventive measures taken to prevent or minimize such damage.
ARTICLE III
1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or where the incident consists of a series of occurrences at the time of the first such occurrence, shall be liable for any pollution damage caused by oil which has escaped or been discharged from the ship as a result of the incident.
2. No liability for pollution damage shall attach to the owner if he proves that the damage:
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character, or
SCHEDULE 1—continued
(b) was wholly caused by an act or omission done with intent to cause damage by a third party or
(c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.
3. If the owner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from his liability to such person.
4. No claim for compensation for pollution damage shall be made against the owner otherwise than in accordance with this Convention. No claim for pollution damage under this Convention or otherwise may be made against the servants or agents of the owner.
5. Nothing in this Convention shall prejudice any right of recourse of the owner against third parties.
ARTICLE IV
When oil has escaped or has been discharged from two or more ships, and pollution damage results therefrom, the owners of all the ships concerned, unless exonerated under Article III, shall be jointly and severally liable for all such damage which is not reasonably separable.
ARTICLE V
1. The owner of a ship shall be entitled to limit his liability under this Convention in respect of any one incident to an aggregate amount of 2,000 francs for each ton of the ship’s tonnage. However, this aggregate amount shall not in any event exceed 210 million francs.
2. If the incident occurred as a result of the actual fault or privity of the owner, he shall not be entitled to avail himself of the limitation provided in paragraph 1 of this Article.
3. For the purpose of availing himself of the benefit of limitation provided for in paragraph 1 of this Article the owner shall constitute a fund for the total sum representing the limit of his liability with the Court or other competent authority of any one of the Contracting States in which action is brought under Article IX. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the legislation of the Contracting State where the fund is constituted, and considered to be adequate by the Court or another competent authority.
4. The fund shall be distributed among the claimants in proportion to the amounts of their established claims.
5. If before the fund is distributed the owner or any of his servants or agents or any person providing him insurance or other financial security has as a result of the incident in question, paid compensation for pollution damage, such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.
6. The right of subrogation provided for in paragraph 5 of this Article may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for pollution damage which he may have paid but only to the extent that such subrogation is permitted under the applicable national law.
7. Where the owner or any other person establishes that he may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which such person would have enjoyed a right of subrogation under paragraphs 5 or 6 of this Article, had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund.
8. Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall rank equally with other claims against the fund.
9. The franc mentioned in this Article shall be a unit consisting of sixty-five and a half milligrams of gold of millesimal fineness nine hundred. The amount mentioned in paragraph 1 of this Article
SCHEDULE 1—continued
shall be converted into the national currency of the State in which the fund is being constituted on the basis of the official value of that currency by reference to the unit defined above on the date of the constitution of the fund.
10. For the purpose of this Article the ship’s tonnage shall be the net tonnage of the ship with the addition of the amount deducted from the gross tonnage on account of engine room space for the purpose of ascertaining the net tonnage. In the case of a ship which cannot be measured in accordance with the normal rules of tonnage measurement, the ship’s tonnage shall be deemed to be 40 per cent of the weight in tons (of 2240 lbs) of oil which the ship is capable of carrying.
11. The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this Article on the same conditions and having the same effect as if it were constituted by the owner. Such a fund may be constituted even in the event of the actual fault or privity of the owner but its constitution shall in that case not prejudice the rights of any claimant against the owner.
ARTICLE VI
1. Where the owner, after an incident, has constituted a fund in accordance with Article V, and is entitled to limit his liability,
(a) no person having a claim for pollution damage arising out of that incident shall be entitled to exercise any right against any other other assets of the owner in respect of such claim;
(b) the Court or other competent authority of any Contracting State shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for pollution damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest.
2. The foregoing shall, however, only apply if the claimant has access to the Court administering the fund and the fund is actually available in respect of his claim.
ARTICLE VII
1. The owner of a ship registered in a Contracting State and carrying more than 2,000 tons of oil in bulk as cargo shall be required to maintain insurance or other financial security, such as the guarantee of a bank or a certificate delivered by an international compensation fund, in the sums fixed by applying the limits of liability prescribed in Article V, paragraph 1 to cover his liability for pollution damage under this Convention.
2. A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship. It shall be issued or certified by the appropriate authority of the State of the ship’s registry after determining that the requirements of paragraph 1 of this Article have been complied with. This certificate shall be in the form of the annexed model and shall contain the following particulars:
(a) name of ship and port of registration;
(b) name and principal place of business of owner;
(c) type of security;
(d) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established;
(e) period of validity of certificate which shall not be longer than the period of validity of the insurance or other security.
3. The certificate shall be in the official language or languages of the issuing State. If the language used is neither English nor French, the text shall include a translation into one of these languages.
4. The certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship’s registry.
5. An insurance or other financial security shall not satisfy the requirements of this Article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2 of this Article, before three months have elapsed from the date
SCHEDULE 1—continued
on which notice of its termination is given to the authorities referred to in paragraph 4 of this Article, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this Article.
6. The State of registry shall, subject to the provisions of this Article, determine the conditions of issue and validity of the certificate.
7. Certificates issued or certified under the authority of a Contracting State shall be accepted by other Contracting States for the purposes of this Convention and shall be regarded by other Contracting States as having the same force as certificates issued or certified by them. A Contracting State may at any time request consultation with the State of a ship’s registry should it believe that the insurer or guarantor named in the certificate is not financially capable of meeting the obligations imposed by this Convention.
8. Any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the owner’s liability for pollution damage. In such case the defendant may, irrespective of the actual fault or privity of the owner, avail himself of the limits of liability prescribed in Article V, paragraph 1. He may further avail himself of the defences (other than the bankruptcy or winding up of the owner) which the owner himself would have been entitled to invoke. Furthermore, the defendant may avail himself of the defence that the pollution damage resulted from the wilful misconduct of the owner himself, but the defendant shall not avail himself of any other defence which he might have been entitled to invoke in proceedings brought by the owner against him. The defendant shall in any event have the right to require the owner to be joined in the proceedings.
9. Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 of this Article shall be available exclusively for the satisfaction of claims under this Convention.
10. A Contracting State shall not permit a ship under its flag to which this Article applies to trade unless a certificate has been issued under paragraph 2 or 12 of this Article.
11. Subject to the provisions of this Article, each Contracting State shall ensure, under its national legislation, that insurance or other security to the extent specified in paragraph 1 of this Article is in force in respect of any ship, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an off-shore terminal in its territorial sea, if the ship actually carries more than 2,000 tons of oil in bulk as cargo.
12. If insurance or other financial security is not maintained in respect of a ship owned by a Contracting State, the provisions of this Article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authorities of the State of the ship’s registry stating that the ship is owned by that State and that the ship’s liability is covered within the limits prescribed by Article V, paragraph 1. Such a certificate shall follow as closely as practicable the model prescribed by paragraph 2 of this Article.
ARTICLE VIII
Rights of compensation under this Convention shall be extinguished unless an action is brought thereunder within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage. Where this incident consists of a series of occurrences, the six years’ period shall run from the date of the first such occurrence.
ARTICLE IX
1. Where an incident has caused pollution damage in the territory including the territorial sea of one or more Contracting States, or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea, actions for compensation may only be brought in the Courts of any such Contracting State or States. Reasonable notice of any such action shall be given to the defendant.
2. Each Contracting State shall ensure that its Courts possess the necessary jurisdiction to entertain such actions for compensation.
SCHEDULE 1—continued
3. After the fund has been constituted in accordance with Article V the Courts of the State in which the fund is constituted shall be exclusively competent to determine all matters relating to the apportionment and distribution of the fund.
ARTICLE X
1. Any judgment given by a Court with jurisdiction in accordance with Article IX which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognized in any Contracting State, except:
(a) where the judgment was obtained by fraud; or
(b) where the defendant was not given reasonable notice and a fair opportunity to present his case.
2. A judgment recognized under paragraph 1 of this Article shall be enforceable in each Contracting State as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.
ARTICLE XI
1. The provisions of this Convention shall not apply to warships or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service.
2. With respect to ships owned by a Contracting State and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in Article IX and shall waive all defences based on its status as a sovereign State.
ARTICLE XII
This Convention shall supersede any International Conventions in force or open for signature, ratification or accession at the date on which the Convention is opened for signature, but only to the extent that such Conventions would be in conflict with it; however, nothing in this Article shall affect the obligations of Contracting States to non-Contracting States arising under such International Conventions.
ARTICLE XIII
1. The present Convention shall remain open for signature until 31 December 1970 and shall thereafter remain open for accession.
2. States Members of the United Nations or any of the Specialized Agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice may become Parties to this Convention by:
(a) signature without reservation as to ratification, acceptance or approval;
(b) signature subject to ratification, acceptance or approval followed by ratification, acceptance or approval; or
(c) accession.
ARTICLE XIV
1. Ratification, acceptance, approval or accession shall be effected by the deposit of a formal instrument to that effect with the Secretary-General of the Organization.
2. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to the present Convention with respect to all existing Contracting States, or after the completion of all measures required for the entry into force of the amendment with respect to those Contracting States shall be deemed to apply to the Convention as modified by the amendment.
ARTICLE XV
1. The present Convention shall enter into force on the ninetieth day following the date on which Governments of eight States including five States each with not less than 1,000.000 gross tons of tanker tonnage have either signed it without reservation as to ratification, acceptance or approval or have deposited instruments of ratification, acceptance, approval or accession with the Secretary-General of the Organization.
SCHEDULE 1—continued
2. For each State which subsequently ratifies, accepts, approves or accedes to it the present Convention shall come into force on the ninetieth day after deposit by such State of the appropriate instrument.
ARTICLE XVI
1. The present Convention may be denounced by any Contracting State at any time after the date on which the Convention comes into force for that State.
2. Denunciation shall be effected by the deposit of an instrument with the Secretary-General of the Organization.
3. A denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after its deposit with the Secretary-General of the Organization.
ARTICLE XVII
1. The United Nations, where it is the administering authority for a territory, or any Contracting State responsible for the international relations of a territory, shall as soon as possible consult with the appropriate authorities of such territory or take such other measures as may be appropriate, in order to extend the present Convention to that territory and may at any time by notification in writing to the Secretary-General of the Organization declare that the present Convention shall extend to such territory.
2. The present Convention shall, from the date of receipt of the notification or from such other date as may be specified in the notification, extend to the territory named therein.
3. The United Nations, or any Contracting State which has made a declaration under paragraph 1 of this Article may at any time after the date on which the Convention has been so extended to any territory declare by notification in writing to the Secretary-General of the Organization that the present Convention shall cease to extend to any such territory named in the notification.
4. The present Convention shall cease to extend to any territory mentioned in such notification one year, or such longer period as may be specified therein, after the date of receipt of the notification by the Secretary-General of the Organization.
ARTICLE XVIII
1. A Conference for the purpose of revising or amending the present Convention may be convened by the Organization.
2. The Organization shall convene a Conference of the Contracting States for revising or amending the present Convention at the request of not less than one-third of the Contracting States.
ARTICLE XIX
1. The present Convention shall be deposited with the Secretary-General of the Organization.
2. The Secretary-General of the Organization shall:
(a) inform all States which have signed or acceded to the Convention of
(i) each new signature or deposit of instrument together with the date thereof;
(ii) the deposit of any instrument of denunciation of this Convention together with the date of the deposit;
(iii) the extension of the present Convention to any territory under paragraph 1 of Article XVII and of the termination of any such extension under the provisions of paragraph 4 of that Article stating in each case the date on which the present Convention has been or will cease to be so extended;
(b) transmit certified true copies of the present Convention to all Signatory States and to all States which accede to the present Convention.
SCHEDULE 1—continued
ARTICLE XX
As soon as the present Convention comes into force, the text shall be transmitted by the Secretary-General of the Organization to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.
ARTICLE XXI
The present Convention is established in a single copy in the English and French languages, both texts being equally authentic. Official translations in the Russian and Spanish languages shall be prepared and deposited with the signed original.
IN WITNESS WHEREOF the undersigned being duly authorized by their respective Governments for that purpose have signed the present Convention.
DONE at Brussels this twenty-ninth day of November 1969.
ANNEX
CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF CIVIL LIABILITY FOR OIL POLLUTION DAMAGE
Issued in accordance with the provisions of Article VII of the International Convention on Civil Liability for Oil Pollution Damage, 1969.
NAME OF SHIP | DISTINCTIVE NUMBER OR LETTERS | PORT OF REGISTRY | NAME AND ADDRESS OF OWNER |
| | | |
This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article VII of the International Convention on Civil Liability for Oil Pollution Damage, 1969.
Type of Security ………………………………………………………………………………
…………………………………………………………………………………………………
Duration of Security…………………………………………………………………………...
Name and Address of the Insurer(s) and/or Guarantor(s)
Name…………………………………………………………………………………………..
Address………………………………………………………………………………………...
…………………………………………………………………………………………………
This certificate is valid until…………………………………………………………….
Issued or certified by the Government of……………………………………………….
…………………………………………………………………………………………..
(Full designation of the State)
At…………………………………. On………………………………………………..
(Place) (Date)
………………………………………
Signature and Title of issuing or certifying official.
Explanatory Notes:
1. If desired, the designation of the State may include a reference to the competent public authority of the country where the certificate is issued.
2. If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated.
3. If security is furnished in several forms, these should be enumerated.
4. The entry “Duration of the Security” must stipulate the date on which such security takes effect.
SCHEDULE 2 Section 3
PROTOCOL TO THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1969
THE PARTIES TO THE PRESENT PROTOCOL,
BEING PARTIES to the International Convention on Civil Liability for Oil Pollution Damage, done at Brussels on 29 November 1969;
HAVE AGREED as follows:
ARTICLE I
For the purpose of the present Protocol:
1. “Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1969.
2. “Organization” has the same meaning as in the Convention.
3. “Secretary-General” means the Secretary-General of the Organization.
ARTICLE II
Article V of the Convention is amended as follows:
(1) Paragraph 1 is replaced by the following text:
“The owner of a ship shall be entitled to limit his liability under this Convention in respect of any one incident to an aggregate amount of 133 units of account for each ton of the ship’s tonnage. However, this aggregate amount shall not in any event exceed 14 million units of account.”
(2) Paragraph 9 is replaced by the following text:
9 (a) The “unit of account” referred to in paragraph 1 of this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in paragraph 1 shall be converted into the national currency of the State in which the fund is being constituted on the basis of the value of that currency by reference to the Special Drawing Right on the date of the constitution of the fund. The value of the national currency, in terms of the Special Drawing Right, of a Contracting State which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a Contracting State which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.
9 (b) Nevertheless, a Contracting State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9 (a) of this Article may, at the time of ratification, acceptance, approval of or accession to the present Convention, or at any time thereafter, declare that the limits of liability provided for in paragraph 1 to be applied in its territory shall, in respect of any one incident, be an aggregate of 2,000 monetary units for each ton of the ship’s tonnage provided that this aggregate amount shall not in any event exceed 210 million monetary units. The monetary unit referred to in this paragraph corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of these amounts into the national currency shall be made according to the law of the State concerned.
9 (c) The calculation mentioned in the last sentence of paragraph 9 (a) and the conversion mentioned in paragraph 9 (b) shall be made in such a manner as to express in the national currency of the Contracting State as far as possible the same real value for the amounts in paragraph 1 as is expressed there in units of account. Contracting States shall communicate to the depositary the manner of calculation pursuant to paragraph 9 (a), or the result of the conversion in paragraph 9 (b) as the case may be, when depositing an instrument referred to in Article IV and whenever there is a change in either.
ARTICLE III
1. The present Protocol shall be open for signature by any State which has signed the Convention or acceded thereto and by any State invited to attend the Conference to Revise the Unit of Account Provisions of the Convention on Civil Liability for Oil Pollution Damage, 1969, held in London from 17 to 19 November 1976. The Protocol shall be open for signature from 1 February 1977 to 31 December 1977 at the Headquarters of the Organization.
SCHEDULE 2—continued
2. Subject to paragraph 4 of this Article, the present Protocol shall be subject to ratification, acceptance or approval by the States which have signed it.
3. Subject to paragraph 4 of this Article, this Protocol shall be open for accession by States which did not sign it.
4. The present Protocol may be ratified, accepted, approved or acceded to by States Parties to the Convention.
ARTICLE IV
1. Ratification, acceptance, approval or accession shall be effected by the deposit of a formal instrument to that effect with the Secretary-General.
2. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to the present Protocol with respect to all existing Parties or after the completion of all measures required for the entry into force of the amendment with respect to all existing Parties, shall be deemed to apply to the Protocol as modified by the amendment.
ARTICLE V
1. The present Protocol shall enter into force for the States which have ratified, accepted, approved or acceded to it on the ninetieth day following the date on which eight States including five States each with not less than 1,000,000 gross tons of tanker tonnage have deposited instruments of ratification, acceptance, approval or accession with the Secretary-General.
2. For each State which subsequently ratifies, accepts, approves or accedes to it, the present Protocol shall enter into force on the ninetieth day after the deposit by such State of the appropriate instrument.
ARTICLE VI
1. The present Protocol may be denounced by any Party at any time after the date on which the Protocol enters into force for that Party.
2. Denunciation shall be effected by the deposit of an instrument to that effect with the Secretary-General.
3. Denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after its deposit with the Secretary-General.
ARTICLE VII
1. A Conference for the purpose of revising or amending the present Protocol may be convened by the Organization.
2. The Organization shall convene a Conference of Parties to the present Protocol for the purpose of revising or amending it at the request of not less than one-third of the Parties.
ARTICLE VIII
1. The present Protocol shall be deposited with the Secretary-General.
2. The Secretary-General shall:
(a) inform all States which have signed the present Protocol or acceded thereto of:
(i) each new signature or deposit of an instrument together with the date thereof;
(ii) the date of entry into force of the present Protocol;
(iii) the deposit of any instrument of denunciation of the present Protocol together with the date on which the denunciation takes effect;
(iv) any amendments to the present Protocol;
(b) transmit certified true copies of the present Protocol to all States which have signed the present Protocol or acceded thereto.
SCHEDULE 2—continued
ARTICLE IX
As soon as the present Protocol enters into force, a certified true copy thereof shall be transmitted by the Secretary-General to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.
ARTICLE X
The present Protocol is established in a single original in the English and French languages, both texts being equally authentic. Official translations in the Russian and Spanish languages shall be prepared and deposited with the signed original.
DONE AT LONDON this nineteenth day of November one thousand nine hundred and seventy-six.
IN WITNESS WHEREOF the undersigned being duly authorized for that purpose have signed the present Protocol.
