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11 1988

OIL POLLUTION OF THE SEA (CIVIL LIABILITY AND COMPENSATION) ACT, 1988

PART III

The International Oil Pollution Compensation Fund

Returns of volume of oil carried by sea.

19. —(1) It shall be the duty of such persons as may be prescribed to submit annually to the Minister in such manner and on or before such date as may be prescribed a return of the volume of crude oil and fuel oil carried in each ship owned by such person and received in harbours, terminal installations and offshore terminals in the State.

(2) It shall be the duty of such persons as may be prescribed to pay each year into the International Oil Pollution Compensation Fund established under the Fund Convention (in this Act referred to as “the Fund”) in such manner and on or before such date as may be prescribed such sums as may be determined by the Assembly of the Fund Convention and certified by the Director of the Fund, any such sum to be determined in accordance with the returns submitted to the Minister under subsection (1) or, where the person concerned fails or neglects to submit his return on or before the prescribed date, to pay to the Fund such sum as may be calculated on an estimate of that person's returns for that year.

(3) If any person fails to pay to the Fund any sum due and payable by him under subsection (2), the Director of the Fund may recover from the person by whom it was payable in any court of competent jurisdiction, as a simple contract debt, such sum together with interest thereon from the date on which such sum became payable, such interest to be at such rate as may, from time to time, be determined by the Assembly of the Fund Convention.

(4) Any person who—

(a) fails to submit, within the prescribed time, to the Minister the returns specified in subsection (1), or

(b) submits a false return to the Minister, or

(c) fails to make the payment specified in subsection (2) to the Fund,

shall be guilty of an offence.

(5) In this Act—

the Assembly of the Fund Convention” means the Assembly specified in Article 17 of the Fund Convention;

crude oil” means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation and includes oils (known as “topped crudes”) from which some distillate fractions have been removed and oils (known as “spiked crudes” or “reconstituted crudes”) to which some distillate fractions have been added;

fuel oil” means heavy distillages or residues from crude oil or blends of such oils intended for use as a fuel for the production of heat or power of a quality equivalent to, or heavier than, the American Society for Testing and Materials' specification for number four fuel oil (Designation D396/69).

Liability of Fund.

20. —(1) Subject to the provisions of this Act, the Fund shall be liable for pollution damage in the State caused by the discharge of oil from a ship carrying oil in bulk as cargo, whether such ship is within or without the State.

(2) The Fund shall be liable for pollution damage in any case where—

(a) a liability for damages does not arise under section 7 , or

(b) the person who suffered the damage has been unable, after taking all reasonable steps to pursue every legal remedy available to him, to obtain full satisfaction of the amount of compensation due to him under section 7 or 9 , or

(c) the owner of the ship concerned has limited his liability under this Act and the amount of compensation due exceeds such limit.

(3) Section 12 (7) applies to any distribution made pursuant to this section in the same manner as it applies to any distribution made under section 12 .

(4) The Fund shall not be liable for pollution damage if it is proved that the discharge of oil which caused the pollution damage resulted from an act of war, hostilities, civil war or insurrection or was caused by oil which has escaped or been discharged from a warship or other ship owned or operated by the State or by a Convention Country and used, at the time of the incident, only on government non-commercial service.

(5) The Fund may be wholly or partly relieved from liability for pollution damage if it is established that the discharge of oil which caused the pollution damage was due wholly or partly to—

(a) anything done or left undone by the person who suffered the pollution damage with intent to cause damage;

or

(b) the negligence of the person who suffered the pollution damage:

Provided that this subsection shall not apply to the cost of any reasonable measures taken after an incident has occurred to prevent or to minimise pollution damage.

(6) Subject to subsections (7) and (8), the Fund shall, in accordance with the provisions of this Act, indemnify the owner of a ship or his guarantor against his liability under section 7 or 10 .

(7) A liability shall not be imposed on the Fund under subsection (6) in any case where it is established that the pollution damage resulted from the wilful misconduct of the owner of the ship.

(8) The Fund may be wholly or partly relieved from its liability under subsection (6) if it is established that, because of the actual fault or privity of the owner of the ship, the pollution damage was wholly or partly occasioned by the non-compliance with the provisions of any Convention in relation to—

(a) Safety at Sea, or

(b) Pollution of the Sea,

which may be specified by, or in accordance with, the Fund Convention.

(9) In this Part “oil” means any persistent hydrocarbon mineral oil.

Extent of liability of Fund.

21. —(1) Where the Fund incurs a liability under this Act by reason of a discharge of oil which causes pollution damage in the territory of the State, the aggregate amount of compensation payable in respect of any one incident shall not exceed sixty million units of account.

(2) Where the Fund in accordance with section 20 (6) indemnifies the owner of a ship or his guarantor, any such indemnity shall not exceed that part of such owner's, or his guarantor's, liability under this Act which is—

(a) in excess of an amount equivalent to one hundred units of account for each ton of the ship's tonnage, or of a total amount of eight million, three hundred and thirty-three thousand units of account, whichever is the lesser, and

(b) not in excess of an amount equivalent to one hundred and thirty-three units of account for each ton of the said tonnage or a total amount of fourteen million units of account, whichever is the lesser.

(3) For the purposes of this section “the aggregate amount of compensation” means the maximum amount of compensation payable by the Fund by reason of pollution damage occasioned by any one incident whether such compensation is payable by reason of any one or more of the following, that is to say—

(a) the provisions of this Act,

(b) the provisions of any law in any Convention Country, or

(c) the provisions of the Fund Convention.

(4) Where the total of all claims against the Fund in any particular case exceeds the aggregate amount of compensation payable under subsection (1), the aggregate amount of compensation shall be distributed amongst all claimants for compensation in such a manner that the proportion between any claim and the amount of compensation recovered in respect of that claim shall be the same for all claimants.

(5) Subject to the provisions of subsection (2), the Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund under this Act, acquire by subrogation any rights that the person so compensated may enjoy under this Act against the owner of a ship or his guarantor.

Limitation on actions against Fund.

22. —(1) Subject to subsection (2), an action shall not be brought against the Fund—

(a) after three years from the date on which the pollution damage occurred unless an action for compensation has already been commenced under this Act against the owner of a ship or his guarantor and the Fund has been notified pursuant to rules of court of the action by any party thereto, or

(b) after six years from the date of the incident which caused the pollution damage: Provided that, where the incident causing the pollution damage consists of a series of occurrences, the period of six years specified in this paragraph shall be deemed to commence on the happening of the first of those occurrences.

(2) The right of the owner of a ship or his guarantor to seek indemnification from the Fund pursuant to section 20 (6) shall not, in any case, be extinguished before the expiry of a period of six months after the date on which such owner or his guarantor first became aware that a claim for damages under this Act was brought against him or them.

Pollution damage in two countries.

23. —Where an incident which results in the Fund being liable for compensation or indemnity under section 20 occasions pollution damage in the State and in one or more other Convention Countries, proceedings under this Act may be taken, and the incident may for all incidental purposes be treated as having occurred, in any place in the State.

Claims by State.

24. —(1) The State may be a party to any claim for compensation for pollution damage against the owner of a ship or his guarantor or against the Fund either under this Act or under the corresponding law in any Convention Country.

(2) Any claim brought on behalf of the State under subsection (1) of this section may be brought and prosecuted by the Minister.

(3) Any claim brought on behalf of the State under subsection (1) of this section may include a claim for any amount paid by the State to any person who has suffered pollution damage in the State as a result of an incident in respect of which the State is making a claim.