PART 2

Bunker Oil Pollution (Civil Liability and Compensation)

3.— (1) In this Part, except where the context otherwise requires—

“bunker oil” means any hydrocarbon mineral oil (including lubricating oil) used or intended to be used for the operation or propulsion of a ship, and any residues of such oil;

“ charterer ” includes bareboat charterer;

“ Convention ” means the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001, done at London on 23 May 2001;

“ Convention court ” means, in relation to a State Party (other than the State)—

(a) any court or tribunal that under the law of that State Party has jurisdiction to determine liability in respect of pollution damage incurred, and to award compensation therefore, or

(b) any court or tribunal that under the law of that State Party has jurisdiction to—

(i) adjudicate on any appeal from a judgment, or

(ii) review a judgment,

of a court or tribunal referred to in paragraph (a);

“ Council Regulation ” means Council Regulation (EC) No. 44/2001 of 22 December 2000 ¹ on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;

“ harbour authority ” means—

(a) in the case of a harbour to which the Harbours Acts 1946 to 1976 apply, a harbour authority within the meaning of those Acts,

(b) in the case of a harbour under the control of a company established pursuant to section 7 of the Harbours Act 1996 , the company concerned,

(c) in the case of a fishery harbour centre to which the Fishery Harbour Centres Act 1968 applies, the Minister for Communications, Marine and Natural Resources,

(d) in the case of a harbour under the control of a local authority, the local authority concerned,

(e) in the case of a harbour under the management of Iarnród Éireann — Irish Rail, that body;

“inspector” means one or more of the following:

(a) a person duly appointed under section 14 ;

(b) a member of the Permanent Defence Forces holding commissioned rank, while in uniform;

(c) a member of the Garda Síochána, while in uniform;

(d) as respects the harbour of which he or she is the harbour master, a person duly appointed to be the harbour master by the harbour authority concerned;

“Irish ship” means an Irish ship within the meaning of section 9 of the Mercantile Marine Act 1955 ;

“ judgment ” means a decision of a Convention court made in accordance with the provisions of the Convention awarding compensation to a person in respect of pollution damage incurred by him or her;

“ judgment debtor ” means the person against whom a Convention court has given a final judgment;

“ local authority ” has the same meaning as in the Local Government Act 2001 ;

“ master ” in relation to a ship, includes the manager or the operator or both;

“ Member State ” means a Member State of the European Communities, other than the State and Denmark;

“Minister” means the Minister for Transport;

“prescribed ” means prescribed by order or regulations made by the Minister under this Part;

“State Party” means a state (other than the State) that is declared by order under section 4 to be a State Party to the Convention.

(2) (a) A reference in this Part to the State includes a reference to—

(i) the inland waters of the State,

(ii) the territorial seas of the State, and the seabed and subsoil beneath those seas, and

(iii) subject to paragraph (b), any area lying within a line, every point of which is 200 nautical miles from the baselines for the purposes of the Maritime Jurisdiction Acts 1959 to 1988, and the waters above it.

(b) Nothing in paragraph (a)(iii) shall be construed as constituting a claim by the State to any area that—

(i) is under the jurisdiction of a state other than the State, and

(ii) the State recognises as being under such jurisdiction.

(3) A word or expression that is used in this Part and that is also used in the Convention has, in this Part, the meaning that it has in the Convention.

4.— (1) The Minister may by order—

(a) declare that any state specified in the order is a State Party to the Convention and such an order shall be evidence that that State is a State Party to the Convention,

(b) make a declaration for the purposes of Article 7.15 of the Convention,

(c) prescribe fees payable pursuant to section 9 (8).

(2) The Minister may by order amend or revoke an order made by him or her under this section.

5.— The Minister may make regulations for carrying the provisions of this Part and the Convention into effect, including the issuing of certificates under section 9 .

6.— Every order and regulation under this Part shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling such order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

7.— (1) Subject to the provisions of this Part the Convention shall have the force of law in the State and judicial notice shall be taken of it.

(2) For convenience of reference, the text of the Convention in the English language (including the Annex to it) is set out in the Schedule.

8.— (1) In this section—

“ 1976 Convention ” means the Convention on Limitation of Liability for Maritime Claims, done at London on 19 November 1976;

“ 1996 Protocol ” means the Protocol to the 1976 Convention, done at London on 2 May 1996.

(2) Where the State has jurisdiction under the Convention, then Articles 6 to 9 of the 1976 Convention (as amended by Articles 3, 4 and 5 of the 1996 Protocol) shall apply.

(3) Where, pursuant to Article 8 of the 1996 Protocol, the limits of liability (including any one or more of the amounts specified in the relevant Articles) are duly amended by increasing the limits, then the Minister shall, if satisfied that the limits of liability have been duly increased, make an order giving the new, increased limits of liability the force of law. The Minister shall specify in the order a date, not earlier than their entering into force internationally in accordance with the 1996 Protocol, when the new limits come into force in the State.

(4) (a) For the purpose of the limits of liability specified in Articles 6 and 7 (as amended) of the 1976 Convention, the value in the currency of the State of the unit of account specified in that Convention shall be taken to be the value, ascertained in accordance with Article 8 (as amended) of that Convention, in that currency of such a unit of account on the relevant day specified in that said Article or, if its value on that day cannot be so ascertained, its value in that currency on the latest day before such day on which it can be so ascertained.

(b) For the purposes of this section a certificate purporting to be signed by an officer of the Central Bank and Financial Services Authority of Ireland and stating that—

(i) a specified amount in the currency of the State is the value of such a unit of account on a specified day, or

(ii) the value in the currency of the State of such a unit of account on a specified day cannot be ascertained in accordance with the 1976 Convention (as amended) and that a specified amount in the currency of the State is the value, calculated in accordance with that Convention, of such a unit of account on a specified day (being the latest day before the first-mentioned specified day on which such value can be ascertained as aforesaid),

shall be admissible as evidence of the facts stated in the certificate.

9.— (1) Nothing in this Part shall affect the rights of subrogation of any person providing insurance or financial security under Article 7 of the Convention.

(2) This section applies to a certificate issued pursuant to Article 7 of the Convention attesting that insurance or other financial security is in force in accordance with the provisions of the Convention. Such a certificate shall be in the form set out in the Annex to the Convention.

(3) For the purposes of Article 7 of the Convention the appropriate authority in the State is the Minister.

(4) The owner—

(a) of an Irish ship, or

(b) of a ship registered in a state that is not a State Party,

may apply to the Minister for a certificate under this section.

(5) The Minister shall, on being satisfied that insurance or other financial security is in force in respect of the ship, issue a certificate under this section to the owner.

(6) Where an Irish ship—

(a) has a gross tonnage greater than 1,000, and

(b) does not have on board a certificate issued by the Minister under this section,

then, the owner, the charterer and the master of such ship are each guilty of an offence.

(7) The owner, the charterer and the master of a ship other than an Irish ship that—

(a) is located in the State,

(b) has a gross tonnage greater than 1,000, and

(c) does not have on board a certificate that complies with, and is issued in accordance with Article 7 of the Convention,

are each guilty of an offence.

(8) An application under subsection (4) shall be accompanied by such fee, not exceeding the expense incurred by the Minister in considering such application and issuing a certificate, as may be prescribed by the Minister.

(9) The Public Offices Fees Act 1879 shall not apply to fees under this section.

10.— (1) This section shall not apply to a judgment of a court of a Member State other than a court or tribunal of a territory of a Member State to which the Council Regulation does not apply.

(2) A final judgment of a Convention court shall be recognised and enforceable in the State in accordance with Article 10 of the Convention.

(3) An application for the enforcement of a final judgment shall be made to the High Court.

(4) For the purposes of this Part a judgment shall be deemed to be a final judgment where—

(a) the time within which, under the law of the State Party concerned, an appeal against the judgment may be brought has expired and no such appeal has been brought,

(b) under the law of the State Party concerned there is no provision for an appeal from such judgment,

(c) an appeal against the judgment has been withdrawn, or

(d) the judgment has been affirmed or varied on appeal by the Convention court hearing such appeal, and—

(i) the time within which, under the law of the State Party concerned, an appeal against the decision to so affirm or vary has expired and no such appeal has been brought,

(ii) under the law of the State Party concerned there is no provision for an appeal from the decision to so affirm or vary, or

(iii) an appeal against the decision to so affirm or vary has been withdrawn.

(5) Subject to this section and Article 10 of the Convention, the High Court shall make an order in the amount of the final judgment, less any payments duly made in satisfaction since the date of the final judgment.

(6) A final judgment in respect of which an order under subsection (5) has been made shall, to the extent to which the enforcement of that judgment is authorised by the enforcement order, be of the same force and effect as if the judgment were a judgment of the High Court.

(7) In an application under this section to enforce a final judgment the High Court may, at any stage of the proceedings, make such order as it considers just and equitable having regard to the circumstances and Article 10 of the Convention.

11.— The Council Regulation and the European Communities (Civil and Commercial Judgments) Regulations 2002 (S.I. No. 52 of 2002) apply in respect of a judgment of a court or tribunal of a Member State other than a court or tribunal of a territory of a Member State to which the Council Regulation does not apply.

12.— (1) An enforcement order under section 10 may, at the discretion of the court, provide for the payment to the applicant concerned by the judgment debtor of the reasonable costs of or incidental to the application for the order.

(2) (a) Where, on an application for an order under section 10 , it is shown that, in accordance with the law of the State Party in which the judgment was given, interest on a sum, the payment of which is provided for in the judgment, is recoverable under the judgment at a particular rate or rates and from a particular date or time, then the order, if made, shall provide that—

(i) the person by whom that sum is payable shall also be liable to pay the interest on it apart from any interest on costs recoverable by virtue of subsection (1), in accordance with the particulars noted in the order, and

(ii) the amount of the interest shall be recoverable by the applicant concerned as if it were part of that sum.

(b) Where the judgment debtor has limited his or her liability in accordance with the applicable limitation regime in force pursuant to Article 6 of the Convention the aggregate of the interest payable by virtue of this subsection and the amount of compensation payable by the judgment debtor in respect of the incident concerned shall not exceed the maximum amount of compensation payable under that Article in respect of any one incident caused by bunker oil carried on board the ship concerned.

(3) Interest shall be payable on a sum referred to in subsection (2) only as provided for by this section.

13.— (1) The following documents shall be attached to an application for an order under section 10 :

(a) a duly certified copy of the judgment to which the application relates;

(b) in the case of a judgment that was given in default of appearance or defence, a duly certified copy of the document that establishes that the party in default was duly served with the document instituting the proceedings to which the judgment relates, or had notice of the proceedings or the document; and

(c) if the High Court so requires, a translation of the documents specified in paragraphs (a) and (b) certified as being a correct translation thereof by a person who is competent to so certify.

(2) For the purposes of this section—

(a) a document purporting to be a copy of a judgment shall be deemed to be duly certified if it purports—

(i) to bear the seal of the Convention court that gave it, or

(ii) to be certified by any person in his or her capacity as a judge or officer of that court as being a true copy of the judgment,

and

(b) a document purporting to be a copy of a document specified in subsection (1)(b) shall be deemed to be duly certified if it purports to be certified by a person, who in relation to the Convention court concerned, performs functions the same as or similar to those performed in relation to a court in this State by the registrar or clerk of it, as being a true copy of such document.

14.— (1) The Minister may appoint such persons or classes of persons as he or she considers appropriate to be inspectors for the purposes of this Part.

(2) A person appointed under subsection (1) shall, on his or her appointment, be furnished by the Minister with a warrant of his or her appointment and when exercising a function conferred by this Part shall, if requested by any person thereby affected, produce such warrant to that person for inspection.

(3) Whenever an inspector has reasonable grounds for believing that an offence has been committed in relation to a ship under this section or section 9 and the ship concerned is located in the State he or she may detain the ship or take it to such place in the State as he or she considers appropriate and there detain it.

(4) An inspector may, for the purposes of this Part—

(a) stop any ship,

(b) board any ship,

(c) inspect and examine the ship,

(d) inspect and take copies of, or extracts from, the ship’s log (if any) and the ship’s manifest (if any) and any other records or documents on board the ship relating to the ship, its owner, bareboat charterer (if any), or master,

(e) require the master or any member of the crew of the ship to furnish him or her with such information or documents and give such assistance as he or she may reasonably require for the purpose of carrying out functions under this Part,

(f) detain a ship in accordance with section 15 .

(5) A person who—

(a) obstructs or interferes with an inspector in the performance of his or her functions under this Part, or

(b) fails or refuses to comply with a requirement of an inspector under subsection (4),

is guilty of an offence.

(6) If a ship that has been detained pursuant to this section leaves or attempts to leave the place at which it has been detained, the owner, bareboat charterer (if any) and the master of the ship concerned are each guilty of an offence.

15.— (1) Where an inspector, in exercise of the powers conferred on him or her by this Part, has detained a ship and the persons on board the ship at a port or other place in the State because of his or her suspicion that an offence under section 9 or 14 has been committed, the inspector shall (unless proceeding under subsection (2)), as soon as may be, apply to a judge of the District Court for an order authorising the continued detention of the ship and those persons. The judge may grant an order authorising such detention for a period of 48 hours if he or she is satisfied that the applicant inspector has such a suspicion.

(2) Where an inspector, in exercise of the powers conferred on him or her by this Part, has detained a ship and the persons on board the ship at a port or other place in the State, the inspector shall, as soon as may be, bring the master of the ship and any other persons on board the ship, against whom proceedings for an offence under section 9 or 14 (6) have been or are about to be instituted, before a judge of the District Court. The judge shall, if he or she is satisfied that such proceedings have been or are about to be instituted against the master and those other persons or any one or more of them, by order directed to an inspector, require such inspector to detain at a specified place in the State the ship and each person (including the master) in respect of whom he or she is so satisfied, until such proceedings have been adjudicated upon by a court in exercise of its criminal jurisdiction. When such proceedings are so adjudicated upon, the judge of the court concerned may, by order, direct an inspector to further detain the ship at a specified place in the State pending the determination of any appeal from the adjudication concerned or the determination of any other proceedings connected with such adjudication or appeal.

(3) Where an inspector, pursuant to an order under subsection (1), continues to detain a ship and the persons on board the ship at a port or other place in the State, an inspector may bring the master and any other persons on board the ship, against whom proceedings for an offence under section 9 or 14 (6) have been or are about to be instituted, before a judge of the District Court and such judge shall—

(a) before the expiration of the period of 48 hours to which the said order applies, and

(b) if he or she is satisfied that such proceedings have been or are about to be instituted against the master and those other persons or any one or more of them,

by order directed to an inspector, require such inspector to detain at a specified place in the State the ship and each person (including the master) aforesaid in respect of whom he is so satisfied until such proceedings have been adjudicated upon by a court in exercise of its criminal jurisdiction, and when such proceedings are so adjudicated upon the judge of the court concerned may, by order, direct an inspector to further detain the ship at a specified place in the State pending the determination of any appeal from the adjudication concerned or the determination of any other proceedings connected with such adjudication or appeal.

(4) Where an order is made under subsection (2) or (3), a judge of the District Court or, as may be appropriate, the judge of the court adjudicating upon proceedings referred to in those subsections or that has adjudicated upon such proceedings, may by order direct an inspector to release the ship to which the order applies, subject to the giving of security, by or on behalf of the defendant, that in the opinion of the judge concerned would be adequate to provide for the payment of—

(a) in circumstances where—

(i) a court has not yet adjudicated upon such proceedings, the maximum fine for which the defendant would be liable if guilty of the offence to which the proceedings relate, or

(ii) the defendant has been convicted in such proceedings, any fine imposed by the court concerned,

and

(b) the estimated amount of the costs (if any) of any trials, appeals or other proceedings in relation to such an offence for which the defendant would be liable if convicted thereof or would be liable, if on appeal from a conviction for such offence or on the conclusion of any other proceedings connected with such conviction, the conviction were affirmed.

(5) Subsection (3) is in addition to and not in substitution for any other power of a court to require the entering into of a bond or recognisance by the defendant in respect of any trials, appeals or other proceedings to which the offence concerned relates.

(6) Where an order is made under this section for the detention or release of a ship, the ship shall be detained or released, as the case may be, in accordance with the terms of the order.

16.— (1) The following provisions shall have effect in relation to the recovery of a fine for an offence under this Part committed by the owner or master of the ship concerned and the costs (if any) ordered to be paid in respect of proceedings for such offence:

(a) the court concerned shall fix a time within which such fine and costs (if any) are to be paid;

(b) where the ship concerned is detained under section 15 (2) or 15 (3) the court shall by order direct an inspector to further detain the ship at a specified place in the State until such fine and costs (if any) are paid, and the inspector shall comply with such order;

(c) where such fine and costs (if any) are not paid within the said time, such fine and costs may be recovered by the distress and sale of such ship, her equipment, furniture and apparel;

(d) the court shall order—

(i) the payment in whole or in part of any moneys given as security in accordance with section 15 (4), or

(ii) the sale of any property real or personal given as security in accordance with the said section 15 (4) and the payment in whole or in part of the proceeds of any such sale,

in satisfaction in whole or in part of such fine and costs (if any).

(2) Nothing in subsection (1) shall be construed as preventing a fine or costs to which that subsection applies being recovered from the defendant concerned by ordinary process of law.

17.— (1) (a) A person guilty of an offence under section 9 is liable—

(i) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months, or to both, or

(ii) on conviction on indictment, to a fine not exceeding €1,500,000, or to imprisonment for a term not exceeding 5 years, or to both.

(b) A person guilty of an offence under this Part (other than section 9 ) is liable—

(i) on summary conviction to a fine not exceeding €3,000, or to imprisonment for a term not exceeding 12 months, or to both, or

(ii) on conviction on indictment, to a fine not exceeding €15,000, or to imprisonment for a term not exceeding 2 years, or to both.

(2) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence under this Part as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (1)(a)(i). The reference in section 13(2)(a) of the Criminal Procedure Act 1967 to the penalties provided for by subsection 3 of that section shall be construed and have effect accordingly.

(3) Where an offence under this Part is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

18.— (1) Summary proceedings for an offence under this Part may be brought and prosecuted by the Minister.

(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Part may be instituted—

(a) within 2 years from the date on which the offence was committed, and

(b) if at the end of that period, the person to be charged is outside the State, within 2 months of the date on which he or she next enters the State.

(3) References in section 382 of the Companies Act 1963 to a company shall, for the purposes of this Part, be construed as including references to a body corporate (whether or not a company within the meaning of that section) charged on indictment with an offence under this Part.

¹ OJ No. L12 of 16.1.2001, p.1