Commonwealth Consolidated Acts

PROTECTION OF THE SEA (CIVIL LIABILITY) ACT 1981 - SCHEDULE 1

Section   3

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

(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 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 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 those 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 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.

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 judgement 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.

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.

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.

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.

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.