Merchant Shipping Amendment Act 2004
MERCHANT SHIPPING AMENDMENT ACT 2004
1
BERMUDA
2004 : 16
MERCHANT SHIPPING AMENDMENT ACT 2004
[Date of Assent: 7 June 2004]
[Operative Date: 18 June 2004]
WHEREAS it is expedient to amend the Merchant Shipping Act
2002 to give effect in Bermuda to Chapter XI-2 of the Annex to the
International Convention for the Safety of Life at Sea 1974; to the
Protocol of 1992 to the Convention on Civil Liability for Oil Pollution
Damage 1969; to the Protocol of 1992 to the Convention on the
Establishment of an International Fund for Compensation for Oil
Pollution Damage 1971; to the Convention on Liability and
Compensation for Damage in Connection with the Carriage of Hazardous
and Noxious Substances by Sea 1996; and to the Protocol of 1996 to the
Convention on Limitation of Liability for Maritime Claims 1976:
Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:
Citation and commencement
1. (1) This Act may be cited as the Merchant Shipping
Amendment Act 2004.
(2) This Act shall come into operation on such day as the
Minister may appoint by notice published in the Gazette and different
days may be appointed for different provisions.
MERCHANT SHIPPING AMENDMENT ACT 2004
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Interpretation
2. In this Act, "the principal Act" means the Merchant Shipping Act
2002.
Section 99 of principal Act amended
3. Section 99 of the principal Act is amended
(a) by repealing subsections (1) to (4);
(b) in subsection (5), by deleting "by the said rules for
indicating that a message is about to be sent under this
section" and substituting "under safety regulations
relating to dangers to navigation, which indicates that a
message is about to be sent under those regulations,";
(c) in subsection (7) —
(i) by repealing the definition of "tropical storms"; and
(ii) by repealing the tailpiece.
New Part VIA inserted
4. The principal Act is amended by inserting the following Part after
Part VI —
"PART VIA
SPECIAL MEASURES TO ENHANCE MARITIME SECURITY
Powers to give effect to Chapter XI-2 of the Annex to the
SOLAS Convention
121A (1) The Minister may make such regulations as he
considers appropriate for the purpose of giving effect to Chapter
XI-2 of the Annex to the SOLAS Convention for the purpose of
enhancing maritime security in -
(a) Bermuda ships and persons on board them; and
(b) other ships and persons on board them while
they are within Bermuda waters.
(2) Without prejudice to the generality of subsection
(1), regulations made under this section may make provision
with respect to the following matters-
(a) compliance with the provisions of the ISPS Code;
(b) compliance with the requirements for the
security level;
MERCHANT SHIPPING AMENDMENT ACT 2004
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(c) the measures to be taken in response to security
levels;
(d) the measures to be taken for non-compliance or
inability to comply with the requirements of the
ISPS Code or security levels;
(e) the furnishing of information with respect to
persons with responsibility for matters related to
the operations of a ship;
(f) the provision of ship security alert systems;
(g) the duties and powers of a master in relation to
the maintenance of the safety and security of a
ship;
(h) the powers of authorised officers in relation to
control and compliance measures in respect of
ships in port and ships intending to enter port;
(i) the furnishing of information in relation to
security matters by ships in port and ships
intending to enter port;
(j) the keeping of records of such information.
(3) Regulations made under this section may —
(a) make different provisions for different
circumstances;
(b) include provision with respect to the application
of the regulations to the Crown;
(c) include provision for detaining any ship in
respect of which a contravention of a provision
made by or under the regulations is suspected
to have occurred, and in relation to such a ship,
for applying section 242 with such
modifications, if any, as are prescribed by the
regulations;
(d) include provision for the payment of
compensation for ships that have been unduly
detained or delayed in the exercise of powers
under the regulations;
(e) provide for the delegation of functions
exercisable by virtue of such regulations;
MERCHANT SHIPPING AMENDMENT ACT 2004
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(f) include such incidental, supplemental and
transitional provisions as appear to the Minister
to be expedient for the purposes of the
regulations;
(g) provide that a contravention of the regulations
shall be an offence punishable on summary
conviction by a fine of $10,000 and on
conviction on indictment by a fine of $50,000 or
imprisonment for a term of two years or both;
(h) that, in such cases as are prescribed by the
regulations, such persons as are so prescribed
shall each be guilty of an offence created by
virtue of paragraph (g).
(4) Regulations made under this section are subject
to negative resolution procedure.
(5) In this section —
“Bermuda ship” has the meaning given in section 93(4);
“SOLAS Convention” means the International
Convention for the Safety of Life at Sea, 1974 as
amended;
“ISPS Code” means the International Ship and Port
Facility Security Code referred to in Chapter XI-2 of
the SOLAS Convention;
“security level” has the meaning given in Chapter XI-2 of
the Annex to the SOLAS Convention."
Section 155 of principal Act Amended
5. (1) Section 155(2) of the principal Act is amended —
(a) in paragraph (a), by deleting "three million" and
substituting "4.51 million";
(b) in paragraph (b) —
(i) by deleting "three million" and substituting "4.51
million";
(ii) by deleting "420" and substituting "631";
(iii) by deleting "59.7 million" and substituting "89.77
million".
MERCHANT SHIPPING AMENDMENT ACT 2004
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Part VII of principal Act amended
6. Part VII of the principal Act is amended by inserting the following
Chapter after Chapter V —
"CHAPTER VI
CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES
Introductory
178A (1) In this Chapter, unless the context otherwise
requires, "the Convention" means the International Convention
on Liability and Compensation for Damage in Connection with
the Carriage of Hazardous and Noxious Substances by Sea 1996.
(2) The text of the Convention, excluding the
annexes, is set out in Schedule 4A.
(3) In interpreting the definition of "hazardous and
noxious substances" in Article 1, paragraph 5 of the Convention,
any reference in that paragraph to a particular convention or
code as amended shall be taken to be a reference to that
convention or code as amended from time to time (whether
before or after the commencement of this Chapter).
Power to give effect to Convention
178B (1) The Minister may by order make such provision
as he considers appropriate for the purpose of giving effect to —
(a) the Convention on or after its signature or
ratification by the United Kingdom on behalf of
Bermuda; or
(b) any revision of the Convention which appears to
the Minister to have been agreed to by the
United Kingdom on behalf of Bermuda.
(2) The power conferred by subsection (1) to make
provision for the purpose of giving effect to the Convention or an
agreement revising the Convention includes power to provide for
the provision to come into force even though the Convention or
the agreement has not come into force.
(3) Without prejudice to the generality of subsection
(1), an order under that subsection may include provision —
(a) requiring contributions to be paid in accordance
with the Convention to the International
MERCHANT SHIPPING AMENDMENT ACT 2004
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Hazardous and Noxious Substances Fund
established under the Convention;
(b) for applying for the purpose mentioned in
subsection (1) any enactment or instrument
relating to the pollution of the sea or other
waters (including provisions creating offences)
with such modifications, if any, as may be
prescribed by the order;
(c) making such modifications of any enactment or
instrument (including, where the order is made
under paragraph (b) of that subsection,
modifications of Schedule 4A and section 178C)
as appear to the Minister to be appropriate for
the purpose specified in that subsection;
(d) with respect to the application of the order to the
Crown;
(e) for detaining any ship in respect of which a
contravention of a provision made by or under
the order is suspected to have occurred and, in
relation to such a ship, for applying section 242
with such modifications, if any, as are
prescribed by the order;
(f) for a certificate issued by or on behalf of the
Minister stating that at a particular time a
particular substance was, or was not, a
hazardous or noxious substance for the
purposes of the Convention to be conclusive
evidence of that matter.
(4) An order under subsection (1) may —
(a) make different provision for different
circumstances;
(b) make provision for references in the order to any
specified document to operate as references to
that document as revised or re-issued from time
to time;
(c) provide for the delegation of functions
exercisable by virtue of the order;
(d) include such incidental, supplemental and
transitional provisions as appear to the Minister
to be expedient for the purposes of the order.
MERCHANT SHIPPING AMENDMENT ACT 2004
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(5) The Minister may make regulations for the
purposes of this section.
(6) An order and regulations made under this
section are subject to negative resolution procedure.
Power of Minister to amend Schedule 4A
178C (1) The Minister may by order make such
amendments of Schedule 4A as appears to him to be appropriate
for the purpose of giving effect to any amendment of a relevant
limit which is adopted in accordance with article 48 of the
Convention.
(2) In subsection (1), "a relevant limit" means any of
the limits for the time being specified in article 9, paragraph 1
and article 14, paragraph 5, of the Convention.".
Schedule 4 of principal Act amended
7. Schedule 4 (text of paragraphs 4 and 5 of Article 4 of the Fund
Convention) of the principal Act is amended, in the text of paragraph 4 —
(a) in subparagraphs (a) and (b), by deleting "135 million"
and substituting "203 million";
(b) in subparagraph (c), by deleting "200 million" and
substituting "300.74 million".
Schedule 4A added to principal Act
8. The principal Act is amended by inserting the following schedule
after Schedule 4
"SCHEDULE 4A (section 178A(2) )
TEXT OF INTERNATIONAL CONVENTION ON LIABILITY AND
COMPENSATION FOR DAMAGE IN CONNECTION WITH THE
CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES
The States parties to the present Convention,
Conscious of the dangers posed by the world-wide carriage by sea
of hazardous and noxious substances,
Convinced of the need to ensure that adequate, prompt and
effective compensation is available to persons who suffer damage
caused by incidents in connection with the carriage by sea of
such substances,
MERCHANT SHIPPING AMENDMENT ACT 2004
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Desiring to adopt uniform international rules and procedures for
determining questions of liability and compensation in respect of
such damage,
Considering that the economic consequences of damage caused
by the carriage by sea of hazardous and noxious substances
should be shared by the shipping industry and the cargo
interests involved,
Have agreed as follows —
CHAPTER I
GENERAL PROVISIONS
DEFINITIONS
Article 1
For the purposes of this Convention —
1. "Ship" means any seagoing vessel and seaborne craft, of any
type whatsoever.
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. "Receiver" means either —
(a) the person who physically receives contributing
cargo discharged in the ports and terminals of a
State Party; provided that if at the time of receipt
the person who physically receives the cargo
acts as an agent for another who is subject to
the jurisdiction of any State Party, then the
principal shall be deemed to be the receiver, if
the agent discloses the principal to the HNS
Fund; or
(b) the person in the State Party who in accordance
with the national law of that State Party is
MERCHANT SHIPPING AMENDMENT ACT 2004
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deemed to be the receiver of contributing cargo
discharged in the ports and terminals of a State
Party, provided that the total contributing cargo
received according to such national law is
substantially the same as that which would have
been received under (a).
5. "Hazardous and noxious substances" (HNS) means:
(a) any substances, materials and articles carried
on board a ship as cargo, referred to in (i) to (vii)
below —
(i) oils carried in bulk listed in appendix I
of Annex I to the International
Convention for the Prevention of
Pollution from Ships, 1973, as modified
by the Protocol of 1978 relating thereto,
as amended;
(ii) noxious liquid substances carried in
bulk referred to in appendix II of Annex
II to the International Convention for the
Prevention of Pollution from Ships,
1973, as modified by the Protocol of
1978 relating thereto, as amended, and
those substances and mixtures
provisionally categorized as falling in
pollution category A, B, C or D in
accordance with regulation 3(4) of the
said Annex II;
(iii) dangerous liquid substances carried in
bulk listed in chapter 17 of the
International Code for the Construction
and Equipment of Ships Carrying
Dangerous Chemicals in Bulk, 1983, as
amended, and the dangerous products
for which the preliminary suitable
conditions for the carriage have been
prescribed by the Administration and
port administrations involved in
accordance with paragraph 1.1.3 of the
Code;
(iv) dangerous, hazardous and harmful
substances, materials and articles in
packaged form covered by the
MERCHANT SHIPPING AMENDMENT ACT 2004
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International Maritime Dangerous
Goods Code, as amended;
(v) liquefied gases as listed in chapter 19 of
the International Code for the
Construction and Equipment of Ships
Carrying Liquefied Gases in Bulk, 1983,
as amended, and the products for which
preliminary suitable conditions for the
carriage have been prescribed by the
Administration and port administrations
involved in accordance with paragraph
1.1.6 of the Code;
(vi) liquid substances carried in bulk with a
flashpoint not exceeding 60 degrees
Celsius (measured by a closed cup test);
(vii) solid bulk materials possessing chemical
hazards covered by appendix B of the
Code of Safe Practice for Solid Bulk
Cargoes, as amended, to the extent that
these substances are also subject to the
provisions of the International Maritime
Dangerous Goods Code when carried in
packaged form; and
(b) residues from the previous carriage in bulk of
substances referred to in (a)(i) to (iii) and (v) to
(vii) above.
6. "Damage" means —
(a) loss of life or personal injury on board or outside
the ship carrying the hazardous and noxious
substances caused by those substances;
(b) loss of or damage to property outside the ship
carrying the hazardous and noxious substances
caused by those substances;
(c) loss or damage by contamination of the
environment caused by the hazardous and
noxious substances, provided that
compensation for impairment of the
environment other than loss of profit from such
impairment shall be limited to costs of
reasonable measures of reinstatement actually
undertaken or to be undertaken; and
MERCHANT SHIPPING AMENDMENT ACT 2004
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(d) the costs of preventive measures and further
loss or damage caused by preventive measures.
Where it is not reasonably possible to separate damage caused
by the hazardous and noxious substances from that caused by
other factors, all such damage shall be deemed to be caused by
the hazardous and noxious substances except if, and to the
extent that, the damage caused by other factors is damage of a
type referred to in article 4, paragraph 3.
In this paragraph, "caused by those substances" means caused
by the hazardous or noxious nature of the substances.
7. "Preventive measures" means any reasonable measures taken
by any person after an incident has occurred to prevent or
minimize damage.
8. "Incident" means any occurrence or series of occurrences
having the same origin, which causes damage or creates a grave
and imminent threat of causing damage.
9. "Carriage by sea" means the period from the time when the
hazardous and noxious substances enter any part of the ship's
equipment, on loading, to the time they cease to be present in
any part of the ship's equipment, on discharge. If no ship's
equipment is used, the period begins and ends respectively when
the hazardous and noxious substances cross the ship's rail.
10. "Contributing cargo" means any hazardous and noxious
substances which are carried by sea as cargo to a port or
terminal in the territory of a State Party and discharged in that
State. Cargo in transit which is transferred directly, or through a
port or terminal, from one ship to another, either wholly or in
part, in the course of carriage from the port or terminal of
original loading to the port or terminal of final destination shall
be considered as contributing cargo only in respect of receipt at
the final destination.
11. The "HNS Fund" means the International Hazardous and
Noxious Substances Fund established under article 13.
12. "Unit of account" means the Special Drawing Right as
defined by the International Monetary Fund.
13. "State of the ship's registry" means in relation to a registered
ship the State of registration of the ship, and in relation to an
unregistered ship the State whose flag the ship is entitled to fly.
14. "Terminal" means any site for the storage of hazardous and
noxious substances received from waterborne transportation,
MERCHANT SHIPPING AMENDMENT ACT 2004
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including any facility situated off-shore and linked by pipeline or
otherwise to such site.
15. "Director" means the Director of the HNS Fund.
16. "Organization" means the International Maritime
Organization.
17. "Secretary-General" means the Secretary-General of the
Organization.
ANNEXES
Article 2
The Annexes to this Convention shall constitute an integral part
of this Convention.
SCOPE OF APPLICATION
Article 3
This Convention shall apply exclusively —
(a) to any damage caused in the territory, including
the territorial sea, of a State Party;
(b) to damage by contamination of the environment
caused in the exclusive economic zone of a State
Party, established in accordance with
international law, or, if a State Party has not
established such a zone, in an area beyond and
adjacent to the territorial sea of that State
determined by that State in accordance with
international law and extending not more than
200 nautical miles from the baselines from
which the breadth of its territorial sea is
measured;
(c) to damage, other than damage by contamination
of the environment, caused outside the territory,
including the territorial sea, of any State, if this
damage has been caused by a substance carried
on board a ship registered in a State Party or, in
the case of an unregistered ship, on board a
ship entitled to fly the flag of a State Party; and
MERCHANT SHIPPING AMENDMENT ACT 2004
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(d) to preventive measures, wherever taken.
Article 4
1. This Convention shall apply to claims, other than claims
arising out of any contract for the carriage of goods and
passengers, for damage arising from the carriage of hazardous
and noxious substances by sea.
2. This Convention shall not apply to the extent that its
provisions are incompatible with those of the applicable law
relating to workers' compensation or social security schemes.
3. This Convention shall not apply —
(a) to pollution damage as defined in the
International Convention on Civil Liability for Oil
Pollution Damage, 1969, as amended, whether
or not compensation is payable in respect of it
under that Convention; and
(b) to damage caused by a radioactive material of
class 7 either in the International Maritime
Dangerous Goods Code, as amended, or in
appendix B of the Code of Safe Practice for Solid
Bulk Cargoes, as amended.
4. Except as provided in paragraph 5, the provisions of this
Convention shall not apply to warships, naval auxiliary or other
ships owned or operated by a State and used, for the time being,
only on Government non-commercial service.
5. A State Party may decide to apply this Convention to its
warships or other vessels described in paragraph 4, in which
case it shall notify the Secretary-General thereof specifying the
terms and conditions of such application.
6. With respect to ships owned by a State Party and used for
commercial purposes, each State shall be subject to suit in the
jurisdictions set forth in article 38 and shall waive all defences
based on its status as a sovereign State.
Article 5
1. A State may, at the time of ratification, acceptance, approval
of, or accession to, this Convention, or any time thereafter,
declare that this Convention does not apply to ships —
(a) which do not exceed 200 gross tonnage; and
MERCHANT SHIPPING AMENDMENT ACT 2004
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(b) which carry hazardous and noxious substances
only in packaged form; and
(c) while they are engaged on voyages between ports
or facilities of that State.
2. Where two neighbouring States agree that this Convention
does not apply also to ships which are covered by paragraph 1(a)
and (b) while engaged on voyages between ports or facilities of
those States, the States concerned may declare that the
exclusion from the application of this Convention declared under
paragraph 1 covers also ships referred to in this paragraph.
3. Any State which has made the declaration under paragraph 1
or 2 may withdraw such declaration at any time.
4. A declaration made under paragraph 1 or 2, and the
withdrawal of the declaration made under paragraph 3, shall be
deposited with the Secretary-General who shall, after the entry
into force of this Convention, communicate it to the Director.
5. Where a State has made a declaration under paragraph 1 or 2
and has not withdrawn it, hazardous and noxious substances
carried on board ships covered by that paragraph shall not be
considered to be contributing cargo for the purpose of
application of articles 18, 20, article 21, paragraph 5 and article
43.
6. The HNS Fund is not liable to pay compensation for damage
caused by substances carried by a ship to which the Convention
does not apply pursuant to a declaration made under paragraph
1 or 2, to the extent that:
(a) the damage as defined in article 1, paragraph
6(a), (b) or (c) was caused in:
(i) the territory, including the territorial
sea, of the State which has made the
declaration, or in the case of
neighbouring States which have made a
declaration under paragraph 2, of either
of them; or
(ii) the exclusive economic zone, or area
mentioned in article 3(b), of the State or
States referred to in (i);
(b) the damage includes measures taken to prevent
or minimize such damage.
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DUTIES OF STATE PARTIES
Article 6
Each State Party shall ensure that any obligation arising
under this Convention is fulfilled and shall take appropriate
measures under its law including the imposing of sanctions as it
may deem necessary, with a view to the effective execution of any
such obligation.
CHAPTER II
LIABILITY
LIABILITY OF THE OWNER
Article 7
1. Except as provided in paragraphs 2 and 3, the owner at the
time of an incident shall be liable for damage caused by any
hazardous and noxious substances in connection with their
carriage by sea on board the ship, provided that if an incident
consists of a series of occurrences having the same origin the
liability shall attach to the owner at the time of the first of such
occurrences.
2. No liability shall attach to the owner if the owner proves that:
(a) the damage resulted from an act of war,
hostilities, civil war, insurrection or a natural
phenomenon of an exceptional, inevitable and
irresistible character; or
(b) the damage was wholly caused by an act or
omission done with the intent to cause damage
by a third party; or
(c) the damage 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; or
(d) the failure of the shipper or any other person to
furnish information concerning the hazardous
and noxious nature of the substances shipped
either
MERCHANT SHIPPING AMENDMENT ACT 2004
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(i) has caused the damage, wholly or
partly; or
(ii) has led the owner not to obtain
insurance in accordance with article 12;
provided that neither the owner nor its servants
or agents knew or ought reasonably to have
known of the hazardous and noxious nature of
the substances shipped.
3. If the owner proves that the damage resulted wholly or partly
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 liability to such person.
4. No claim for compensation for damage shall be made against
the owner otherwise than in accordance with this Convention.
5. Subject to paragraph 6, no claim for compensation for damage
under this Convention or otherwise may be made against:
(a) the servants or agents of the owner or the
members of the crew;
(b) the pilot or any other person who, without being
a member of the crew, performs services for the
ship;
(c) any chartered (howsoever described, including a
bareboat charterer), manager or operator of the
ship;
(d) any person performing salvage operations with
the consent of the owner or on the instructions
of a competent public authority;
(e) any person taking preventive measures; and
(f) the servants or agents of persons mentioned in
(c), (d) and (e);
unless the damage resulted from their personal act or omission,
committed with the intent to cause such damage, or recklessly
and with knowledge that such damage would probably result.
6. Nothing in this Convention shall prejudice any existing right
of recourse of the owner against any third party, including, but
not limited to, the shipper or the receiver of the substance
causing the damage, or the persons indicated in paragraph 5.
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INCIDENTS INVOLVING TWO OR MORE SHIPS
Article 8
1. Whenever damage has resulted from an incident involving two
or more ships each of which is carrying hazardous and noxious
substances, each owner, unless exonerated under article 7, shall
be liable for the damage. The owners shall be jointly and
severally liable for all such damage which is not reasonably
separable.
2. However, owners shall be entitled to the limits of liability
applicable to each of them under article 9.
3. Nothing in this article shall prejudice any right of recourse of
an owner against any other owner.
LIMITATION OF LIABILITY
Article 9
1. The owner of a ship shall be entitled to limit liability under
this Convention in respect of any one incident to an aggregate
amount calculated as follows —
(a) 10 million units of account for a ship not
exceeding 2,000 units of tonnage; and
(b) for a ship with a tonnage in excess thereof, the
following amount in addition to that mentioned
in (a):
for each unit of tonnage from 2,001 to 50,000
units of tonnage, 1,500 units of account
for each unit of tonnage in excess of 50,000
units of tonnage, 360 units of account
provided, however, that this aggregate amount shall not in any
event exceed 100 million units of account.
2. The owner shall not be entitled to limit liability under this
Convention if it is proved that the damage resulted from the
personal act or omission of the owner, committed with the intent
to cause such damage, or recklessly and with knowledge that
such damage would probably result.
3. The owner shall, for the purpose of benefiting from the
limitation provided for in paragraph 1, constitute a fund for the
total sum representing the limit of liability established in
MERCHANT SHIPPING AMENDMENT ACT 2004
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accordance with paragraph 1 with the court or other competent
authority of any one of the States Parties in which action is
brought under article 38 or, if no action is brought, with any
court or other competent authority in any one of the States
Parties in which an action can be brought under article 38. The
fund can be constituted either by depositing the sum or by
producing a bank guarantee or other guarantee, acceptable
under the law of the State Party where the fund is constituted,
and considered to be adequate by the court or other competent
authority.
4. Subject to the provisions of article 11, 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 the
servants or agents of the owner or any person providing to the
owner insurance or other financial security has as a result of the
incident in question, paid compensation for damage, such
person shall, up to the amount that person 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 may also
be exercised by a person other than those mentioned therein in
respect of any amount of compensation for damage which such
person may have paid but only to the extent that such
subrogation is permitted under the applicable national law.
7. Where owners or other persons establish that they may be
compelled to pay at a later date in whole or in part any such
amount of compensation, with regard to which the right of
subrogation would have been enjoyed under paragraphs 5 or 6
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 the claim against the fund.
8. Claims in respect of expenses reasonably incurred or
sacrifices reasonably made by the owner voluntarily to prevent or
minimize damage shall rank equally with other claims against
the fund.
9. (a) The amounts mentioned in paragraph 1 shall be
converted into national currency on the basis of
the value of that currency by reference to the
Special Drawing Right on the date of the
MERCHANT SHIPPING AMENDMENT ACT 2004
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constitution of the fund referred to in paragraph
3.The value of the national currency, in terms of
the Special Drawing Right, of a State Party
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 on the date in question
for its operations and transactions. The value of
the national currency, in terms of the Special
Drawing Right, of a State Party which is not a
member of the International Monetary Fund,
shall be calculated in a manner determined by
that State.
(b) Nevertheless, a State Party 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) may, at the time of
ratification, acceptance, approval of or accession
to this Convention or at any time thereafter,
declare that the unit of account referred to in
paragraph 9(a) shall be equal to 15 gold francs.
The gold franc referred to in this paragraph
corresponds to sixty-five-and-a-half
milligrammes of gold of millesimal fineness nine
hundred. The conversion of the gold franc into
the national currency shall be made according
to the law of the State concerned.
(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 manner
as to express in the national currency of the
State Party as far as possible the same real
value for the amounts in paragraph 1 as would
result from the application of the first two
sentences of paragraph 9(a). States Parties shall
communicate to the Secretary-General 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 of ratification, acceptance, approval
of or accession to this Convention and whenever
there is a change in either.
10. For the purpose of this article the ship's tonnage shall be the
gross tonnage calculated in accordance with the tonnage
MERCHANT SHIPPING AMENDMENT ACT 2004
20
measurement regulations contained in Annex I of the
International Convention on Tonnage Measurement of Ships,
1969.
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
if, under the provisions of paragraph 2, the owner is not entitled
to limitation of liability, but its constitution shall in that case not
prejudice the rights of any claimant against the owner.
Article 10
1. Where the owner, after an incident, has constituted a fund in
accordance with article 9 and is entitled to limit liability:
(a) no person having a claim for 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; and
(b) the court or other competent authority of any
State Party shall order the release of any ship or
other property belonging to the owner which has
been arrested in respect of a claim for 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 the claim.
DEATH AND INJURY
Article 11
Claims in respect of death or personal injury have priority over
other claims save to the extent that the aggregate of such claims
exceeds two-thirds of the total amount established in accordance
with article 9, paragraph 1.
MERCHANT SHIPPING AMENDMENT ACT 2004
21
COMPULSORY INSURANCE OF THE OWNER
Article 12
1. The owner of a ship registered in a State Party and actually
carrying hazardous and noxious substances shall be required to
maintain insurance or other financial security, such as the
guarantee of a bank or similar financial institution, in the sums
fixed by applying the limits of liability prescribed in article 9,
paragraph 1, to cover liability for damage under this Convention.
2. A compulsory insurance 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 after
the appropriate authority of a State Party has determined that
the requirements of paragraph 1 have been complied with. With
respect to a ship registered in a State Party such compulsory
insurance certificate shall be issued or certified by the
appropriate authority of the State of the ship's registry; with
respect to a ship not registered in a State Party it may be issued
or certified by the appropriate authority of any State Party. This
compulsory insurance certificate shall be in the form of the
model set out in Annex I and shall contain the following
particulars —
(a) name of the ship, distinctive number or letters
and port of registry;
(b) name and principal place of business of the
owner;
(c) IMO ship identification number;
(d) type and duration of security;
(e) 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; and
(f) period of validity of certificate, which shall not
be longer than the period of validity of the
insurance or other security.
3. The compulsory insurance certificate shall be in the official
language or languages of the issuing State. If the language used
is neither English, nor French nor Spanish, the text shall include
a translation into one of these languages.
MERCHANT SHIPPING AMENDMENT ACT 2004
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4. The compulsory insurance 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 or, if the ship is not
registered in a State Party, with the authority of the State issuing
or certifying the certificate.
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, before three
months have elapsed from the date on which notice of its
termination is given to the authorities referred to in paragraph 4,
unless the compulsory insurance 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 the ship's registry shall, subject to the provisions
of this article, determine the conditions of issue and validity of
the compulsory insurance certificate.
7. Compulsory insurance certificates issued or certified under
the authority of a State Party in accordance with paragraph 2
shall be accepted by other States Parties for the purposes of this
Convention and shall be regarded by other States Parties as
having the same force as compulsory insurance certificates
issued or certified by them even if issued or certified in respect of
a ship not registered in a State Party. A State Party may at any
time request consultation with the issuing or certifying State
should it believe that the insurer or guarantor named in the
compulsory insurance certificate is not financially capable of
meeting the obligations imposed by this Convention.
8. Any claim for compensation for damage may be brought
directly against the insurer or other person providing financial
security for the owner's liability for damage. In such case the
defendant may, even if the owner is not entitled to limitation of
liability, benefit from the limit of liability prescribed in
accordance with paragraph 1. The defendant may further invoke
the defences (other than the bankruptcy or winding up of the
owner) which the owner would have been entitled to invoke.
Furthermore, the defendant may invoke the defence that the
damage resulted from the wilful misconduct of the owner, but
the defendant shall not invoke any other defence which the
defendant might have been entitled to invoke in proceedings
brought by the owner against the defendant. The defendant shall
MERCHANT SHIPPING AMENDMENT ACT 2004
23
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 shall be available
exclusively for the satisfaction of claims under this Convention.
10. A State Party 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.
11. Subject to the provisions of this article, each State Party
shall ensure, under its national law, that insurance or other
security in the sums specified in paragraph 1 is in force in
respect of any ship, wherever registered, entering or leaving a
port in its territory, or arriving at or leaving an offshore facility in
its territorial sea.
12. If insurance or other financial security is not maintained in
respect of a ship owned by a State Party, the provisions of this
article relating thereto shall not be applicable to such ship, but
the ship shall carry a compulsory insurance 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 limit prescribed in accordance with
paragraph 1. Such a compulsory insurance certificate shall
follow as closely as possible the model prescribed by paragraph
2.
CHAPTER III
COMPENSATION BY THE INTERNATIONAL HAZARDOUS
AND NOXIOUS SUBSTANCES FUND (HNS FUND)
ESTABLISHMENT OF THE HNS FUND
Article 13
1. The International Hazardous and Noxious Substances Fund
(HNS Fund) is hereby established with the following aims:
(a) to provide compensation for damage in
connection with the carriage of hazardous and
noxious substances by sea, to the extent that
the protection afforded by chapter II is
inadequate or not available; and
MERCHANT SHIPPING AMENDMENT ACT 2004
24
(b) to give effect to the related tasks set out in
article 15.
2. The HNS Fund shall in each State Party be recognized as a
legal person capable under the laws of that State of assuming
rights and obligations and of being a party in legal proceedings
before the courts of that State. Each State Party shall recognize
the Director as the legal representative of the HNS Fund.
COMPENSATION
Article 14
1. For the purpose of fulfilling its function under article 13,
paragraph 1(a), the HNS Fund shall pay compensation to any
person suffering damage if such person has been unable to
obtain full and adequate compensation for the damage under the
terms of chapter II:
(a) because no liability for the damage arises under
chapter II;
(b) because the owner liable for the damage under
chapter II is financially incapable of meeting the
obligations under this Convention in full and
any financial security that may be provided
under chapter II does not cover or is insufficient
to satisfy the claims for compensation for
damage; an owner being treated as financially
incapable of meeting these obligations and a
financial security being treated as insufficient if
the person suffering the damage has been
unable to obtain full satisfaction of the amount
of compensation due under chapter II after
having taken all reasonable steps to pursue the
available legal remedies;
(c) because the damage exceeds the owner's liability
under the terms of chapter II.
2. Expenses reasonably incurred or sacrifices reasonably made
by the owner voluntarily to prevent or minimize damage shall be
treated as damage for the purposes of this article.
3. The HNS Fund shall incur no obligation under the preceding
paragraphs if —
MERCHANT SHIPPING AMENDMENT ACT 2004
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(a) it proves that the damage resulted from an act of
war, hostilities, civil war or insurrection or was
caused by hazardous and noxious substances
which had escaped or been discharged from a
warship or other ship owned or operated by a
State and used, at the time of the incident, only
on Government non-commercial service; or
(b) the claimant cannot prove that there is a
reasonable probability that the damage resulted
from an incident involving one or more ships.
4. If the HNS Fund proves that the damage resulted wholly or
partly 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 HNS Fund may be exonerated
wholly or partially from its obligation to pay compensation to
such person. The HNS Fund shall in any event be exonerated to
the extent that the owner may have been exonerated under
article 7, paragraph 3. However, there shall be no such
exoneration of the HNS Fund with regard to preventive
measures.
5.
(a) Except as otherwise provided in subparagraph
(b), the aggregate amount of compensation
payable by the HNS Fund under this article
shall in respect of any one incident be limited, so
that the total sum of that amount and any
amount of compensation actually paid under
chapter II for damage within the scope of
application of this Convention as defined in
article 3 shall not exceed 250 million units of
account.
(b) The aggregate amount of compensation payable
by the HNS Fund under this article for damage
resulting from a natural phenomenon of an
exceptional, inevitable and irresistible character
shall not exceed 250 million units of account.
(c) Interest accrued on a fund constituted in
accordance with article 9, paragraph 3, if any,
shall not be taken into account for the
computation of the maximum compensation
payable by the HNS Fund under this article.
MERCHANT SHIPPING AMENDMENT ACT 2004
26
(d) The amounts mentioned in this article shall be
converted into national currency on the basis of
the value of that currency with reference to the
Special Drawing Right on the date of the
decision of the Assembly of the HNS Fund as to
the first date of payment of compensation.
6. Where the amount of established claims against the HNS
Fund exceeds the aggregate amount of compensation payable
under paragraph 5, the amount available shall be distributed in
such a manner that the proportion between any established
claim and the amount of compensation actually recovered by the
claimant under this Convention shall be the same for all
claimants. Claims in respect of death or personal injury shall
have priority over other claims, however, save to the extent that
the aggregate of such claims exceeds two-thirds of the total
amount established in accordance with paragraph 5.
7. The Assembly of the HNS Fund may decide that, in
exceptional cases, compensation in accordance with this
Convention can be paid even if the owner has not constituted a
fund in accordance with chapter II. In such cases paragraph 5(d)
applies accordingly.
RELATED TASKS OF THE HNS FUND
Article 15
For the purpose of fulfilling its function under article 13,
paragraph 1(a), the HNS Fund shall have the following tasks:
(a) to consider claims made against the HNS Fund;
(b) to prepare an estimate in the form of a budget
for each calendar year of:
Expenditure:
(i) costs and expenses of the
administration of the HNS Fund in the
relevant year and any deficit from
operations in the preceding years; and
(ii) payments to be made by the HNS Fund
in the relevant year;
Income:
MERCHANT SHIPPING AMENDMENT ACT 2004
27
(iii) surplus funds from operations in
preceding years, including any interest;
(iv) initial contributions to be paid in the
course of the year;
(v) annual contributions if required to
balance the budget; and
(vi) any other income;
(c) to use at the request of a State Party its good
offices as necessary to assist that State to secure
promptly such personnel, material and services
as are necessary to enable the State to take
measures to prevent or mitigate damage arising
from an incident in respect of which the HNS
Fund may be called upon to pay compensation
under this Convention; and
(d) to provide, on conditions laid down in the
internal regulations, credit facilities with a view
to the taking of preventive measures against
damage arising from a particular incident in
respect of which the HNS Fund may be called
upon to pay compensation under this
Convention.
GENERAL PROVISIONS ON CONTRIBUTIONS
Article 16
1. The HNS Fund shall have a general account, which shall be
divided into sectors.
2. The HNS Fund shall, subject to article 19, paragraphs 3 and
4, also have separate accounts in respect of:
(a) oil as defined in article 1, paragraph 5(a)(i) (oil
account);
(b) liquefied natural gases of light hydrocarbons
with methane as the main constituent (LNG)
(LNG account); and
(c) liquefied petroleum gases of light hydrocarbons
with propane and butane as the main
constituents (LPG) (LPG account).
MERCHANT SHIPPING AMENDMENT ACT 2004
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3. There shall be initial contributions and, as required, annual
contributions to the HNS Fund.
4. Contributions to the HNS Fund shall be made into the general
account in accordance with article 18, to separate accounts in
accordance with article 19 and to either the general account or
separate accounts in accordance with article 20 or article 21,
paragraph 5. Subject to article 19, paragraph 6, the general
account shall be available to compensate damage caused by
hazardous and noxious substances covered by that account, and
a separate account shall be available to compensate damage
caused by a hazardous and noxious substance covered by that
account.
5. For the purposes of article 18, article 19, paragraph 1(a)(i),
paragraph 1(a)(ii) and paragraph 1(c), article 20 and article 21,
paragraph 5, where the quantity of a given type of contributing
cargo received in the territory of a State Party by any person in a
calendar year when aggregated with the quantities of the same
type of cargo received in the same State Party in that year by any
associated person or persons exceeds the limit specified in the
respective subparagraphs, such a person shall pay contributions
in respect of the actual quantity received by that person
notwithstanding that quantity did not exceed the respective limit.
6. "Associated person" means any subsidiary or commonly
controlled entity. The question whether a person comes within
this definition shall be determined by the national law of the
State concerned.
GENERAL PROVISIONS ON ANNUAL CONTRIBUTIONS
Article 17
1. Annual contributions to the general account and to each
separate account shall be levied only as required to make
payments by the account in question.
2. Annual contributions payable pursuant to articles 18, 19 and
article 21, paragraph 5 shall be determined by the Assembly and
shall be calculated in accordance with those articles on the basis
of the units of contributing cargo received or, in respect of
cargoes referred to in article 19, paragraph 1(b), discharged
during the preceding calendar year or such other year as the
Assembly may decide.
3. The Assembly shall decide the total amount of annual
contributions to be levied to the general account and to each
MERCHANT SHIPPING AMENDMENT ACT 2004
29
separate account. Following that decision the Director shall, in
respect of each State Party, calculate for each person liable to
pay contributions in accordance with article 18, article 19,
paragraph 1 and article 21, paragraph 5, the amount of that
person's annual contribution to each account, on the basis of a
fixed sum for each unit of contributing cargo reported in respect
of the person during the preceding calendar year or such other
year as the Assembly may decide. For the general account, the
above-mentioned fixed sum per unit of contributing cargo for
each sector shall be calculated pursuant to the regulations
contained in Annex II to this Convention. For each separate
account, the fixed sum per unit of contributing cargo referred to
above shall be calculated by dividing the total annual
contribution to be levied to that account by the total quantity of
cargo contributing to that account.
4. The Assembly may also levy annual contributions for
administrative costs and decide on the distribution of such costs
between the sectors of the general account and the separate
accounts.
5. The Assembly shall also decide on the distribution between
the relevant accounts and sectors of amounts paid in
compensation for damage caused by two or more substances
which fall within different accounts or sectors, on the basis of an
estimate of the extent to which each of the substances involved
contributed to the damage.
ANNUAL CONTRIBUTIONS TO THE GENERAL ACCOUNT
Article 18
1. Subject to article 16, paragraph 5, annual contributions to the
general account shall be made in respect of each State Party by
any person who was the receiver in that State in the preceding
calendar year, or such other year as the Assembly may decide, of
aggregate quantities exceeding 20,000 tonnes of contributing
cargo, other than substances referred to in article 19, paragraph
1, which fall within the following sectors:
(a) solid bulk materials referred to in article 1,
paragraph 5(a)(vii);
(b) substances referred to in paragraph 2; and
(c) other substances.
MERCHANT SHIPPING AMENDMENT ACT 2004
30
2. Annual contributions shall also be payable to the general
account by persons who would have been liable to pay
contributions to a separate account in accordance with article
19, paragraph 1 had its operation not been postponed or
suspended in accordance with article 19. Each separate account
the operation of which has been postponed or suspended under
article 19 shall form a separate sector within the general
account.
ANNUAL CONTRIBUTIONS TO SEPARATE ACCOUNTS
Article 19
1. Subject to article 16, paragraph 5, annual contributions to
separate accounts shall be made in respect of each State Party:
(a) in the case of the oil account,
(i) by any person who has received in that
State in the preceding calendar year, or
such other year as the Assembly may
decide, total quantities exceeding
150,000 tonnes of contributing oil as
defined in article 1, paragraph 3 of the
International Convention on the
Establishment of an International Fund
for Compensation for Oil Pollution
Damage, 1971, as amended, and who is
or would be liable to pay contributions
to the International Oil Pollution
Compensation Fund in accordance with
article 10 of that Convention; and
(ii) by any person who was the receiver in
that State in the preceding calendar
year, or such other year as the
Assembly may decide, of total quantities
exceeding 20,000 tonnes of other oils
carried in bulk listed in appendix I of
Annex I to the International Convention
for the Prevention of Pollution from
Ships, 1973, as modified by the Protocol
of 1978 relating thereto, as amended;
(b) in the case of the LNG account, by any person
who in the preceding calendar year, or such
other year as the Assembly may decide,
MERCHANT SHIPPING AMENDMENT ACT 2004
31
immediately prior to its discharge, held title to
an LNG cargo discharged in a port or terminal of
that State;
(c) in the case of the LPG account, by any person
who in the preceding calendar year, or such
other year as the Assembly may decide, was the
receiver in that State of total quantities
exceeding 20,000 tonnes of LPG.
2. Subject to paragraph 3, the separate accounts referred to in
paragraph 1 above shall become effective at the same time as the
general account.
3. The initial operation of a separate account referred to in article
16, paragraph 2 shall be postponed until such time as the
quantities of contributing cargo in respect of that account during
the preceding calendar year, or such other year as the Assembly
may decide, exceed the following levels —
(a) 350 million tonnes of contributing cargo in
respect of the oil account;
(b) 20 million tonnes of contributing cargo in
respect of the LNG account; and
(c) 15 million tonnes of contributing cargo in
respect of the LPG account.
4. The Assembly may suspend the operation of a separate
account if —
(a) the quantities of contributing cargo in respect of
that account during the preceding calendar year
fall below the respective level specified in
paragraph 3; or
(b) when six months have elapsed from the date
when the contributions were due, the total
unpaid contributions to that account exceed ten
per cent of the most recent levy to that account
in accordance with paragraph 1.
5. The Assembly may reinstate the operation of a separate
account which has been suspended in accordance with
paragraph 4.
6. Any person who would be liable to pay contributions to a
separate account the operation of which has been postponed in
accordance with paragraph 3 or suspended in accordance with
MERCHANT SHIPPING AMENDMENT ACT 2004
32
paragraph 4, shall pay into the general account the
contributions due by that person in respect of that separate
account. For the purpose of calculating future contributions, the
postponed or suspended separate account shall form a new
sector in the general account and shall be subject to the HNS
points system defined in Annex II.
INITIAL CONTRIBUTIONS
Article 20
1. In respect of each State Party, initial contributions shall be
made of an amount which shall for each person liable to pay
contributions in accordance with article 16, paragraph 5, articles
18, 19 and article 21, paragraph 5 be calculated on the basis of
a fixed sum, equal for the general account and each separate
account, for each unit of contributing cargo received or, in the
case of LNG, discharged in that State, during the calendar year
preceding that in which this Convention enters into force for that
State.
2. The fixed sum and the units for the different sectors within
the general account as well as for each separate account referred
to in paragraph 1 shall be determined by the Assembly.
3. Initial contributions shall be paid within three months
following the date on which the HNS Fund issues invoices in
respect of each State Party to persons liable to pay contributions
in accordance with paragraph 1.
REPORTS
Article 21
1. Each State Party shall ensure that any person liable to pay
contributions in accordance with articles 18, 19 or paragraph 5
of this article appears on a list to be established and kept up to
date by the Director in accordance with the provisions of this
article.
2. For the purposes set out in paragraph 1, each State Party
shall communicate to the Director, at a time and in the manner
to be prescribed in the internal regulations of the HNS Fund, the
name and address of any person who in respect of the State is
liable to pay contributions in accordance with articles 18, 19 or
paragraph 5 of this article, as well as data on the relevant
MERCHANT SHIPPING AMENDMENT ACT 2004
33
quantities of contributing cargo for which such a person is liable
to contribute in respect of the preceding calendar year.
3. For the purposes of ascertaining who are, at any given time,
the persons liable to pay contributions in accordance with
articles 18, 19 or paragraph 5 of this article and of establishing,
where applicable, the quantities of cargo to be taken into
account for any such person when determining the amount of
the contribution, the list shall be prima facie evidence of the facts
stated therein.
4. Where a State Party does not fulfil its obligations to
communicate to the Director the information referred to in
paragraph 2 and this results in a financial loss for the HNS
Fund, that State Party shall be liable to compensate the HNS
Fund for such loss. The Assembly shall, on the recommendation
of the Director, decide whether such compensation shall be
payable by a State Party.
5. In respect of contributing cargo carried from one port or
terminal of a State Party to another port or terminal located in
the same State and discharged there, States Parties shall have
the option of submitting to the HNS Fund a report with an
annual aggregate quantity for each account covering all receipts
of contributing cargo, including any quantities in respect of
which contributions are payable pursuant to article 16,
paragraph 5. The State Party shall, at the time of reporting,
either —
(a) notify the HNS Fund that that State will pay the
aggregate amount for each account in respect of
the relevant year in one lump sum to the HNS
Fund; or
(b) instruct the HNS Fund to levy the aggregate
amount for each account by invoicing individual
receivers or, in the case of LNG, the title holder
who discharges within the jurisdiction of that
State Party, for the amount payable by each of
them. These persons shall be identified in
accordance with the national law of the State
concerned.
MERCHANT SHIPPING AMENDMENT ACT 2004
34
NON-PAYMENT OF CONTRIBUTIONS
Article 22
1. The amount of any contribution due under articles 18, 19, 20
or article 21, paragraph 5 and which is in arrears shall bear
interest at a rate which shall be determined in accordance with
the internal regulations of the HNS Fund, provided that different
rates may be fixed for different circumstances.
2. Where a person who is liable to pay contributions in
accordance with articles 18, 19, 20 or article 21, paragraph 5
does not fulfil the obligations in respect of any such contribution
or any part thereof and is in arrears, the Director shall take all
appropriate action, including court action, against such a person
on behalf of the HNS Fund with a view to the recovery of the
amount due. However, where the defaulting contributor is
manifestly insolvent or the circumstances otherwise so warrant,
the Assembly may, upon recommendation of the Director, decide
that no action shall be taken or continued against the
contributor.
OPTIONAL LIABILITY OF STATES PARTIES FOR THE
PAYMENT OF CONTRIBUTIONS
Article 23
1. Without prejudice to article 21, paragraph 5, a State Party
may at the time when it deposits its instrument of ratification,
acceptance, approval or accession or at any time thereafter
declare that it assumes responsibility for obligations imposed by
this Convention on any person liable to pay contributions in
accordance with articles 18, 19, 20 or article 21, paragraph 5 in
respect of hazardous and noxious substances received or
discharged in the territory of that State. Such a declaration shall
be made in writing and shall specify which obligations are
assumed.
2. Where a declaration under paragraph 1 is made prior to the
entry into force of this Convention in accordance with article 46,
it shall be deposited with the Secretary-General who shall after
the entry into force of this Convention communicate the
declaration to the Director.
3. A declaration under paragraph 1 which is made after the
entry into force of this Convention shall be deposited with the
Director.
MERCHANT SHIPPING AMENDMENT ACT 2004
35
4. A declaration made in accordance with this article may be
withdrawn by the relevant State giving notice thereof in writing
to the Director. Such a notification shall take effect three months
after the Director's receipt thereof.
5. Any State which is bound by a declaration made under this
article shall, in any proceedings brought against it before a
competent court in respect of any obligation specified in the
declaration, waive any immunity that it would otherwise be
entitled to invoke.
ORGANIZATION AND ADMINISTRATION
Article 24
The HNS Fund shall have an Assembly and a Secretariat headed
by the Director.
ASSEMBLY
Article 25
The Assembly shall consist of all States Parties to this
Convention.
Article 26
The functions of the Assembly shall be —
(a) to elect at each regular session its President and
two Vice-Presidents who shall hold office until
the next regular session;
(b) to determine its own rules of procedure, subject
to the provisions of this Convention;
(c) to develop, apply and keep under review internal
and financial regulations relating to the aim of
the HNS Fund as described in article 13,
paragraph 1(a), and the related tasks of the HNS
Fund listed in article 15;
(d) to appoint the Director and make provisions for
the appointment of such other personnel as may
be necessary and determine the terms and
conditions of service of the Director and other
personnel;
MERCHANT SHIPPING AMENDMENT ACT 2004
36
(e) to adopt the annual budget prepared in
accordance with article 15(b);
(f) to consider and approve as necessary any
recommendation of the Director regarding the
scope of definition of contributing cargo;
(g) to appoint auditors and approve the accounts of
the HNS Fund;
(h) to approve settlements of claims against the
HNS Fund, to take decisions in respect of the
distribution among claimants of the available
amount of compensation in accordance with
article 14 and to determine the terms and
conditions according to which provisional
payments in respect of claims shall be made
with a view to ensuring that victims of damage
are compensated as promptly as possible;
(i) to establish a Committee on Claims for
Compensation with at least 7 and not more than
15 members and any temporary or permanent
subsidiary body it may consider to be necessary,
to define its terms of reference and to give it the
authority needed to perform the functions
entrusted to it; when appointing the members of
such body, the Assembly shall endeavour to
secure an equitable geographical distribution of
members and to ensure that the States Parties
are appropriately represented; the Rules of
Procedure of the Assembly may be applied,
mutatis mutandis, for the work of such
subsidiary body;
(j) to determine which States not party to this
Convention, which Associate Members of the
Organization and which intergovernmental and
international non-governmental organizations
shall be admitted to take part, without voting
rights, in meetings of the Assembly and
subsidiary bodies;
(k) to give instructions concerning the
administration of the HNS Fund to the Director
and subsidiary bodies;
MERCHANT SHIPPING AMENDMENT ACT 2004
37
(l) to supervise the proper execution of this
Convention and of its own decisions;
(m)to review every five years the implementation of
this Convention with particular reference to the
performance of the system for the calculation of
levies and the contribution mechanism for
domestic trade; and
(n) to perform such other functions as are allocated
to it under this Convention or are otherwise
necessary for the proper operation of the HNS
Fund.
Article 27
1. Regular sessions of the Assembly shall take place once every
calendar year upon convocation by the Director.
2. Extraordinary sessions of the Assembly shall be convened by
the Director at the request of at least one-third of the members
of the Assembly and may be convened on the Director's own
initiative after consultation with the President of the Assembly.
The Director shall give members at least thirty days' notice of
such sessions.
Article 28
A majority of the members of the Assembly shall constitute a
quorum for its meetings.
SECRETARIAT
Article 29
1. The Secretariat shall comprise the Director and such staff as
the administration of the HNS Fund may require.
2. The Director shall be the legal representative of the HNS
Fund.
Article 30
1. The Director shall be the chief administrative officer of the
HNS Fund.
Subject to the instructions given by the Assembly, the Director
shall perform those functions which are assigned to the Director
MERCHANT SHIPPING AMENDMENT ACT 2004
38
by this Convention, the internal regulations of the HNS Fund
and the Assembly.
2. The Director shall in particular —
(a) appoint the personnel required for the
administration of the HNS Fund;
(b) take all appropriate measures with a view to the
proper administration of the assets of the HNS
Fund;
(c) collect the contributions due under this
Convention while observing in particular the
provisions of article 22, paragraph 2;
(d) to the extent necessary to deal with claims
against the HNS Fund and to carry out the other
functions of the HNS Fund, employ the services
of legal, financial and other experts;
(e) take all appropriate measures for dealing with
claims against the HNS Fund, within the limits
and on conditions to be laid down in the internal
regulations of the HNS Fund, including the final
settlement of claims without the prior approval
of the Assembly where these regulations so
provide;
(f) prepare and submit to the Assembly the
financial statements and budget estimates for
each calendar year;
(g) prepare, in consultation with the President of
the Assembly, and publish a report on the
activities of the HNS Fund during the previous
calendar year; and
(h) prepare, collect and circulate the documents
and information which may be required for the
work of the Assembly and subsidiary bodies.
Article 31
In the performance of their duties the Director and the staff and
experts appointed by the Director shall not seek or receive
instructions from any Government or from any authority
external to the HNS Fund. They shall refrain from any action
which might adversely reflect on their position as international
officials. Each State Party on its part undertakes to respect the
MERCHANT SHIPPING AMENDMENT ACT 2004
39
exclusively international character of the responsibilities of the
Director and the staff and experts appointed by the Director, and
not to seek to influence them in the discharge of their duties.
FINANCES
Article 32
1. Each State Party shall bear the salary, travel and other
expenses of its own delegation to the Assembly and of its
representatives on subsidiary bodies.
2. Any other expenses incurred in the operation of the HNS Fund
shall be borne by the HNS Fund.
VOTING
Article 33
The following provisions shall apply to voting in the Assembly —
(a) each member shall have one vote;
(b) except as otherwise provided in article 34,
decisions of the Assembly shall be made by a
majority vote of the members present and
voting;
(c) decisions where a two-thirds majority is required
shall be a two-thirds majority vote of members
present; and
(d) for the purpose of this article the phrase
"members present" means "members present at
the meeting at the time of the vote", and the
phrase "members present and voting" means
"members present and casting an affirmative or
negative vote". Members who abstain from voting
shall be considered as not voting.
Article 34
The following decisions of the Assembly shall require a two-
thirds majority —
(a) a decision under article 19, paragraphs 4 or 5 to
suspend or reinstate the operation of a separate
account;
MERCHANT SHIPPING AMENDMENT ACT 2004
40
(b) a decision under article 22, paragraph 2, not to
take or continue action against a contributor;
(c) the appointment of the Director under article
26(d);
(d) the establishment of subsidiary bodies, under
article 26(i), and matters relating to such
establishment; and
(e) a decision under article 51, paragraph 1, that
this Convention shall continue to be in force.
TAX EXEMPTIONS AND CURRENCY REGULATIONS
Article 35
1. The HNS Fund, its assets, income, including contributions,
and other property necessary for the exercise of its functions as
described in article 13, paragraph 1, shall enjoy in all States
Parties exemption from all direct taxation.
2. When the HNS Fund makes substantial purchases of movable
or immovable property, or of services which are necessary for the
exercise of its official activities in order to achieve its aims as set
out in article 13, paragraph 1, the cost of which include indirect
taxes or sales taxes, the Governments of the States Parties shall
take, whenever possible, appropriate measures for the remission
or refund of the amount of such duties and taxes. Goods thus
acquired shall not be sold against payment or given away free of
charge unless it is done according to conditions approved by the
Government of the State having granted or supported the
remission or refund.
3. No exemption shall be accorded in the case of duties, taxes or
dues which merely constitute payment for public utility services.
4. The HNS Fund shall enjoy exemption from all customs duties,
taxes and other related taxes on articles imported or exported by
it or on its behalf for its official use. Articles thus imported shall
not be transferred either for consideration or gratis on the
territory of the country into which they have been imported
except on conditions agreed by the Government of that country.
5. Persons contributing to the HNS Fund as well as victims and
owners receiving compensation from the HNS Fund shall be
subject to the fiscal legislation of the State where they are
MERCHANT SHIPPING AMENDMENT ACT 2004
41
taxable, no special exemption or other benefit being conferred on
them in this respect.
6. Notwithstanding existing or future regulations concerning
currency or transfers, States Parties shall authorize the transfer
and payment of any contribution to the HNS Fund and of any
compensation paid by the HNS Fund without any restriction.
CONFIDENTIALITY OF INFORMATION
Article 36
Information relating to individual contributors supplied for the
purpose of this Convention shall not be divulged outside the
HNS Fund except in so far as it may be strictly necessary to
enable the HNS Fund to carry out its functions including the
bringing and defending of legal proceedings.
CHAPTER IV
CLAIMS AND ACTIONS
LIMITATION OF ACTIONS
Article 37
1. Rights to compensation under chapter II shall be extinguished
unless an action is brought thereunder within three years from
the date when the person suffering the damage knew or ought
reasonably to have known of the damage and of the identity of
the owner.
2. Rights to compensation under chapter III shall be
extinguished unless an action is brought thereunder or a
notification has been made pursuant to article 39, paragraph 7,
within three years from the date when the person suffering the
damage knew or ought reasonably to have known of the damage.
3. In no case, however, shall an action be brought later than ten
years from the date of the incident which caused the damage.
4. Where the incident consists of a series of occurrences, the ten-
year period mentioned in paragraph 3 shall run from the date of
the last of such occurrences.
MERCHANT SHIPPING AMENDMENT ACT 2004
42
JURISDICTION IN RESPECT OF ACTION AGAINST THE
OWNER
Article 38
1. Where an incident has caused damage in the territory,
including the territorial sea or in an area referred to in article
3(b), of one or more States Parties, or preventive measures have
been taken to prevent or minimize damage in such territory
including the territorial sea or in such area, actions for
compensation may be brought against the owner or other person
providing financial security for the owner's liability only in the
courts of any such States Parties.
2. Where an incident has caused damage exclusively outside the
territory, including the territorial sea, of any State and either the
conditions for application of this Convention set out in article
3(c) have been fulfilled or preventive measures to prevent or
minimize such damage have been taken, actions for
compensation may be brought against the owner or other person
providing financial security for the owner's liability only in the
courts of—
(a) the State Party where the ship is registered or,
in the case of an unregistered ship, the State
Party whose flag the ship is entitled to fly; or
(b) the State Party where the owner has habitual
residence or where the principal place of
business of the owner is established; or
(c) the State Party where a fund has been
constituted in accordance with article 9,
paragraph 3.
3. Reasonable notice of any action taken under paragraph 1 or 2
shall be given to the defendant.
4. Each State Party shall ensure that its courts have jurisdiction
to entertain actions for compensation under this Convention.
5. After a fund under article 9 has been constituted by the owner
or by the insurer or other person providing financial security in
accordance with article 12, the courts of the State in which such
fund is constituted shall have exclusive jurisdiction to determine
all matters relating to the apportionment and distribution of the
fund.
MERCHANT SHIPPING AMENDMENT ACT 2004
43
JURISDICTION IN RESPECT OF ACTION AGAINST THE
HNS FUND OR TAKEN BY THE HNS FUND
Article 39
1. Subject to the subsequent provisions of this article, any action
against the HNS Fund for compensation under article 14 shall
be brought only before a court having jurisdiction under article
38 in respect of actions against the owner who is liable for
damage caused by the relevant incident or before a court in a
State Party which would have been competent if an owner had
been liable.
2. In the event that the ship carrying the hazardous or noxious
substances which caused the damage has not been identified,
the provisions of article 38, paragraph 1, shall apply mutatis
mutandis to actions against the HNS Fund.
3. Each State Party shall ensure that its courts have jurisdiction
to entertain such actions against the HNS Fund as are referred
to in paragraph 1.
4. Where an action for compensation for damage has been
brought before a court against the owner or the owner's
guarantor, such court shall have exclusive jurisdiction over any
action against the HNS Fund for compensation under the
provisions of article 14 in respect of the same damage.
5. Each State Party shall ensure that the HNS Fund shall have
the right to intervene as a party to any legal proceedings
instituted in accordance with this Convention before a competent
court of that State against the owner or the owner's guarantor.
6. Except as otherwise provided in paragraph 7, the HNS Fund
shall not be bound by any judgement or decision in proceedings
to which it has not been a party or by any settlement to which it
is not a party.
7. Without prejudice to the provisions of paragraph 5, where an
action under this Convention for compensation for damage has
been brought against an owner or the owner's guarantor before a
competent court in a State Party, each party to the proceedings
shall be entitled under the national law of that State to notify the
HNS Fund of the proceedings. Where such notification has been
made in accordance with the formalities required by the law of
the court seized and in such time and in such a manner that the
HNS Fund has in fact been in a position effectively to intervene
as a party to the proceedings, any judgement rendered by the
MERCHANT SHIPPING AMENDMENT ACT 2004
44
court in such proceedings shall, after it has become final and
enforceable in the State where the judgement was given, become
binding upon the HNS Fund in the sense that the facts and
findings in that judgement may not be disputed by the HNS
Fund even if the HNS Fund has not actually intervened in the
proceedings.
RECOGNITION AND ENFORCEMENT
Article 40
1. Any judgement given by a court with jurisdiction in
accordance with article 38, which is enforceable in the State of
origin where it is no longer subject to ordinary forms of review,
shall be recognized in any State Party, 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 the case.
2. A judgement recognized under paragraph 1 shall be
enforceable in each State Party 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.
3. Subject to any decision concerning the distribution referred to
in article 14, paragraph 6, any judgement given against the HNS
Fund by a court having jurisdiction in accordance with article
39, paragraphs 1 and 3 shall, when it has become enforceable in
the State of origin and is in that State no longer subject to
ordinary forms of review, be recognized and enforceable in each
State Party.
SUBROGATION AND RECOURSE
Article 41
1. The HNS Fund shall, in respect of any amount of
compensation for damage paid by the HNS Fund in accordance
with article 14, paragraph 1, acquire by subrogation the rights
that the person so compensated may enjoy against the owner or
the owner's guarantor.
2. Nothing in this Convention shall prejudice any rights of
recourse or subrogation of the HNS Fund against any person,
including persons referred to in article 7, paragraph 2(d), other
than those referred to in the previous paragraph, in so far as
MERCHANT SHIPPING AMENDMENT ACT 2004
45
they can limit their liability. In any event the right of the HNS
Fund to subrogation against such persons shall not be less
favourable than that of an insurer of the person to whom
compensation has been paid.
3. Without prejudice to any other rights of subrogation or
recourse against the HNS Fund which may exist, a State Party or
agency thereof which has paid compensation for damage in
accordance with provisions of national law shall acquire by
subrogation the rights which the person so compensated would
have enjoyed under this Convention.
SUPERSESSION CLAUSE
Article 42
This Convention shall supersede any convention in force or open
for signature, ratification or accession at the date on which this
Convention is opened for signature, but only to the extent that
such convention would be in conflict with it; however, nothing in
this article shall affect the obligations of States Parties to States
not party to this Convention arising under such convention.
CHAPTER V
TRANSITIONAL PROVISIONS
INFORMATION ON CONTRIBUTING CARGO
Article 43
When depositing an instrument referred to in article 45,
paragraph 3, and annually thereafter until this Convention
enters into force for a State, that State shall submit to the
Secretary-General data on the relevant quantities of contributing
cargo received or, in the case of LNG, discharged in that State
during the preceding calendar year in respect of the general
account and each separate account.
FIRST SESSION OF THE ASSEMBLY
Article 44
The Secretary-General shall convene the first session of the
Assembly. This session shall take place as soon as possible after
MERCHANT SHIPPING AMENDMENT ACT 2004
46
the entry into force of this Convention and, in any case, not more
than thirty days after such entry into force.
CHAPTER VI
FINAL CLAUSES
SIGNATURE, RATIFICATION, ACCEPTANCE, APPROVAL
AND ACCESSION
Article 45
1. This Convention shall be open for signature at the
Headquarters of the Organization from 1 October 1996 to 30
September 1997 and shall thereafter remain open for accession.
2. States may express their consent to be bound by this
Convention by:
(a) signature without reservation as to ratification,
acceptance or approval; or
(b) signature subject to ratification, acceptance or
approval, followed by ratification, acceptance or
approval; or
(c) accession.
3. Ratification, acceptance, approval or accession shall be
effected by the deposit of an instrument to that effect with the
Secretary-General.
ENTRY INTO FORCE
Article 46
1. This Convention shall enter into force eighteen months after
the date on which the following conditions are fulfilled:
(a) at least twelve States, including four States each
with not less than 2 million units of gross
tonnage, have expressed their consent to be
bound by it, and
(b) the Secretary-General has received information
in accordance with article 43 that those persons
in such States who would be liable to contribute
pursuant to article 18, paragraphs 1(a) and (c)
MERCHANT SHIPPING AMENDMENT ACT 2004
47
have received during the preceding calendar
year a total quantity of at least 40 million tonnes
of cargo contributing to the general account.
2. For a State which expresses its consent to be bound by this
Convention after the conditions for entry into force have been
met, such consent shall take effect three months after the date of
expression of such consent, or on the date on which this
Convention enters into force in accordance with paragraph 1,
whichever is the later.
REVISION AND AMENDMENT
Article 47
1. A conference for the purpose of revising or amending this
Convention may be convened by the Organization.
2. The Secretary-General shall convene a conference of the
States Parties to this Convention for revising or amending the
Convention, at the request of six States Parties or one-third of
the States Parties, whichever is the higher figure.
3. Any consent to be bound by this Convention expressed after
the date of entry into force of an amendment to this Convention
shall be deemed to apply to the Convention as amended.
AMENDMENT OF LIMITS
Article 48
1. Without prejudice to the provisions of article 47, the special
procedure in this article shall apply solely for the purposes of
amending the limits set out in article 9, paragraph 1 and article
14, paragraph 5.
2. Upon the request of at least one half, but in no case less than
six, of the States Parties, any proposal to amend the limits
specified in article 9, paragraph 1, and article 14, paragraph 5,
shall be circulated by the Secretary-General to all Members of
the Organization and to all Contracting States.
3. Any amendment proposed and circulated as above shall be
submitted to the Legal Committee of the Organization (the Legal
Committee) for consideration at a date at least six months after
the date of its circulation.
MERCHANT SHIPPING AMENDMENT ACT 2004
48
4. All Contracting States, whether or not Members of the
Organization, shall be entitled to participate in the proceedings
of the Legal Committee for the consideration and adoption of
amendments.
5. Amendments shall be adopted by a two-thirds majority of the
Contracting States present and voting in the Legal Committee,
expanded as provided in paragraph 4, on condition that at least
one half of the Contracting States shall be present at the time of
voting.
6. When acting on a proposal to amend the limits, the Legal
Committee shall take into account the experience of incidents
and, in particular, the amount of damage resulting therefrom,
changes in the monetary values and the effect of the proposed
amendment on the cost of insurance. It shall also take into
account the relationship between the limits established in article
9, paragraph 1, and those in article 14, paragraph 5.
7. (a) No amendment of the limits under this article
may be considered less than five years from the
date this Convention was opened for signature
nor less than five years from the date of entry
into force of a previous amendment under this
article.
(b) No limit may be increased so as to exceed an
amount which corresponds to a limit laid down
in this Convention increased by six per cent per
year calculated on a compound basis from the
date on which this Convention was opened for
signature.
(c) No limit may be increased so as to exceed an
amount which corresponds to a limit laid down
in this Convention multiplied by three.
8. Any amendment adopted in accordance with paragraph 5
shall be notified by the Organization to all Contracting States
The amendment shall be deemed to have been accepted at the
end of a period of eighteen months after the date of notification,
unless within that period no less than one-fourth of the States
which were Contracting States at the time of the adoption of the
amendment have communicated to the Secretary-General that
they do not accept the amendment, in which case the
amendment is rejected and shall have no effect.
MERCHANT SHIPPING AMENDMENT ACT 2004
49
9. An amendment deemed to have been accepted in accordance
with paragraph 8 shall enter into force eighteen months after its
acceptance.
10. All Contracting States shall be bound by the amendment,
unless they denounce this Convention in accordance with article
49, paragraphs 1 and 2, at least six months before the
amendment enters into force. Such denunciation shall take
effect when the amendment enters into force.
11. When an amendment has been adopted but the eighteen
month period for its acceptance has not yet expired, a State
which becomes a Contracting State during that period shall be
bound by the amendment if it enters into force. A State which
becomes a Contracting State after that period shall be bound by
an amendment which has been accepted in accordance with
paragraph 8. In the cases referred to in this paragraph, a State
becomes bound by an amendment when that amendment enters
into force, or when this Convention enters into force for that
State, if later.
DENUNCIATION
Article 49
1. This Convention may be denounced by any State Party at any
time after the date on which it enters into force for that State
Party.
2. Denunciation shall be effected by the deposit of an instrument
of denunciation with the Secretary-General.
3. Denunciation shall take effect twelve months, or such longer
period as may be specified in the instrument of denunciation,
after its deposit with the Secretary-General.
4. Notwithstanding a denunciation by a State Party pursuant to
this article, any provisions of this Convention relating to
obligations to make contributions under articles 18, 19 or article
21, paragraph 5 in respect of such payments of compensation as
the Assembly may decide relating to an incident which occurs
before the denunciation takes effect shall continue to apply.
MERCHANT SHIPPING AMENDMENT ACT 2004
50
EXTRAORDINARY SESSIONS OF THE ASSEMBLY
Article 50
1. Any State Party may, within ninety days after the deposit of
an instrument of denunciation the result of which it considers
will significantly increase the level of contributions from the
remaining States Parties, request the Director to convene an
extraordinary session of the Assembly. The Director shall
convene the Assembly to meet not less than sixty days after
receipt of the request.
2. The Director may take the initiative to convene an
extraordinary session of the Assembly to meet within sixty days
after the deposit of any instrument of denunciation, if the
Director considers that such denunciation will result in a
significant increase in the level of contributions from the
remaining States Parties.
3. If the Assembly, at an extraordinary session, convened in
accordance with paragraph 1 or 2 decides that the denunciation
will result in a significant increase in the level of contributions
from the remaining States Parties, any such State may, not later
than one hundred and twenty days before the date on which the
denunciation takes effect, denounce this Convention with effect
from the same date.
CESSATION
Article 51
1. This Convention shall cease to be in force —
(a) on the date when the number of States Parties
falls below 6; or
(b) twelve months after the date on which data
concerning a previous calendar year were to be
communicated to the Director in accordance
with article 21, if the data shows that the total
quantity of contributing cargo to the general
account in accordance with article 18,
paragraphs 1(a) and (c) received in the States
Parties in that preceding calendar year was less
than 30 million tonnes.
Notwithstanding (b), if the total quantity of contributing cargo to
the general account in accordance with article 18, paragraphs
MERCHANT SHIPPING AMENDMENT ACT 2004
51
1(a) and (c) received in the States Parties in the preceding
calendar year was less than 30 million tonnes but more than 25
million tonnes, the Assembly may, if it considers that this was
due to exceptional circumstances and is not likely to be
repeated, decide before the expiry of the above-mentioned twelve
month period that the Convention shall continue to be in force.
The Assembly may not, however, take such a decision in more
than two subsequent years.
2. States which are bound by this Convention on the day before
the date it ceases to be in force shall enable the HNS Fund to
exercise its functions as described under article 52 and shall, for
that purpose only, remain bound by this Convention.
WINDING UP OF THE HNS FUND
Article 52
1. If this Convention ceases to be in force, the HNS Fund shall
nevertheless —
(a) meet its obligations in respect of any incident
occurring before this Convention ceased to be in
force; and
(b) be entitled to exercise its rights to contributions
to the extent that these contributions are
necessary to meet the obligations under (a),
including expenses for the administration of the
HNS Fund necessary for this purpose.
2. The Assembly shall take all appropriate measures to complete
the winding up of the HNS Fund including the distribution in an
equitable manner of any remaining assets among those persons
who have contributed to the HNS Fund.
3. For the purposes of this article the HNS Fund shall remain a
legal person.
DEPOSITARY
Article 53
1. This Convention and any amendment adopted under article
48 shall be deposited with the Secretary-General.
2. The Secretary-General shall:
MERCHANT SHIPPING AMENDMENT ACT 2004
52
(a) inform all States which have signed this
Convention or acceded thereto, and all Members
of the Organization, of:
(i) each new signature or deposit of an
instrument of ratification, acceptance,
approval or accession together with the
date thereof;
(ii) the date of entry into force of this
Convention;
(iii) any proposal to amend the limits on the
amounts of compensation which has
been made in accordance with article
48, paragraph 2;
(iv) any amendment which has been
adopted in accordance with article 48,
paragraph 5;
(v) any amendment deemed to have been
accepted under article 48, paragraph 8,
together with the date on which that
amendment shall enter into force in
accordance with paragraphs 9 and 10 of
that article;
(vi) the deposit of any instrument of
denunciation of this Convention
together with the date on which it is
received and the date on which the
denunciation takes effect; and
(vii) any communication called for by any
article in this Convention; and
(b) transmit certified true copies of this Convention
to all States which have signed this Convention
or acceded thereto.
3. As soon as this Convention enters into force, a certified true
copy thereof shall be transmitted by the depositary to the
Secretary-General of the United Nations for registration and
publication in accordance with Article 102 of the Charter of the
United Nations.
MERCHANT SHIPPING AMENDMENT ACT 2004
53
LANGUAGES
Article 54
This Convention is established in a single original in the Arabic,
Chinese, English, French, Russian and Spanish languages, each
text being equally authentic.".
Schedule 6 of principal Act repealed and replaced
9. The principal Act is amended by repealing Schedule 6 and
replacing it with the following
"SCHEDULE 6
(Section 181)
CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME
CLAIMS 1976
PART I
TEXT OF CONVENTION
CHAPTER 1. THE RIGHT OF LIMITATION
ARTICLE 1
Persons entitled to limit liability
1. Shipowners and salvors, as hereinafter defined, may limit
their liability in accordance with the rules of this Convention for
claims set out in Article 2.
2. The term "shipowner" shall mean the owner, charterer,
manager or operator of a seagoing ship.
3. Salvor shall mean any person rendering services in direct
connection with salvage operations. Salvage operations shall
also include operations referred to in Article 2, paragraph 1 (d),
(e) and (f).
4. If any claims set out in Article 2 are made against any
person for whose act, neglect or default the shipowner or salvor
is responsible, such person shall be entitled to avail himself of
the limitation of liability provided for in this Convention.
MERCHANT SHIPPING AMENDMENT ACT 2004
54
5. In this Convention the liability of a shipowner shall include
liability in an action brought against the vessel herself.
6. An insurer of liability for claims subject to limitation in
accordance with the rules of this Convention shall be entitled to
the benefits of this Convention to the same extent as the assured
himself.
7. The act of invoking limitation of liability shall not constitute
an admission of liability.
ARTICLE 2
Claims subject to limitation
1. Subject to Articles 3 and 4 the following claims, whatever
the basis of liability may be, shall be subject to limitation of
liability —
(a) claims in respect of loss of life or personal injury
or loss of or damage to property (including
damage to harbour works, basins and
waterways and aids to navigation), occurring on
board or in direct connection with the operation
of the ship or with salvage operations, and
consequential loss resulting therefrom;
(b) claims in respect of loss resulting from delay in
the carriage by sea of cargo, passengers or their
luggage;
(c) claims in respect of other loss resulting from
infringement of rights other than contractual
rights, occurring in direct connection with the
operation of the ship or salvage operations;
(d) claims in respect of the raising, removal,
destruction or the rendering harmless of a ship
which is sunk, wrecked, stranded or abandoned,
including anything that is or has been on board
such ship;
(e) claims in respect of the removal, destruction or
the rendering harmless of the cargo of the ship;
(f) claims of a person other than the person liable
in respect of measures taken in order to avert or
minimise loss for which the person liable may
limit his liability in accordance with this
MERCHANT SHIPPING AMENDMENT ACT 2004
55
Convention, and further loss caused by such
measures.
2. Claims set out in paragraph 1 shall be subject to limitation
of liability even if brought by way of recourse or for indemnity
under a contract or otherwise. However, claims set out under
paragraph 1 (d), (e) and (f) shall not be subject to limitation of
liability to the extent that they relate to remuneration under a
contract with the person liable.
ARTICLE 3
Claims excepted from limitation
The rules of this Convention shall not apply to —
(a) claims for salvage, including, if applicable, any
claim for special compensation under Article 14
of the International Convention on Salvage
1989, as amended, or contribution in general
average;
(b) claims for oil pollution damage within the
meaning of the International Convention on Civil
Liability for Oil Pollution Damage dated 29th
November 1969 or of any amendment or
Protocol thereto which is in force;
(c) claims subject to any international convention
or national legislation governing or prohibiting
limitation of liability for nuclear damage;
(d) claims against the shipowner of a nuclear ship
for nuclear damage;
(e) claims by servants of the shipowner or salvor
whose duties are connected with the ship or the
salvage operations, including claims of their
heirs, dependents or other persons entitled to
make such claims, if under the law governing
the contract of service between the shipowner or
salvor and such servants the shipowner or
salvor is not entitled to limit his liability in
respect of such claims, or if he is by such law
only permitted to limit his liability to an amount
greater than that provided for in Article 6.
MERCHANT SHIPPING AMENDMENT ACT 2004
56
ARTICLE 4
Conduct barring limitation
A person liable shall not be entitled to limit his liability if it
is proved that the loss resulted from his personal act or
omission, committed with the intent to cause such loss, or
recklessly and with knowledge, that such loss would probably
result.
ARTICLE 5
Counter claims
Where a person entitled to limitation of liability under the
rules of this Convention has a claim against the claimant arising
out of the same occurrence, their respective claims shall be set
off against each other and the provisions of this Convention shall
only apply to the balance, if any.
CHAPTER II. LIMITS OF LIABILITY
ARTICLE 6
The general limits
1. The limits of liability for claims other than those mentioned
in Article 7, arising on any distinct occasion, shall be calculated
as follows —
(a) in respect of claims for loss of life or personal injury —
(i) 2 million Units of Account for a ship with a
tonnage not exceeding 2,000 tons;
(ii) for a ship with a tonnage in excess thereof, the
following amount in addition to that mentioned
in (i) —
for each ton from 2,001 to 30,000 tons, 800
Units of Account;
for each ton from 30,001 to 70,000 tons, 600
Units of Account;
for each ton in excess of 70,000 tons, 400 Units
of Account;
(b) in respect of any other claims —
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(i) 1 million Units of Account for a ship with a
tonnage not exceeding 2,000 tons;
(ii) for a ship with a tonnage in excess thereof the
following amount in addition to that mentioned
in (i) —
for each ton from 2,001 to 30,000 tons, 400
Units of Account;
for each ton from 30,001 to 70,000,300 Units of
Account; and
for each ton in excess of 70,000 tons, 200 Units
of Account.
2. Where the amount calculated in accordance with paragraph
l(a) is insufficient to pay the claims mentioned therein in full, the
amount calculated in accordance with paragraph l(b) shall be
available for payment of the unpaid balance of claims under
paragraph l(a) and such unpaid balance shall rank rateably with
claims mentioned under paragraph I (b).
4. The limits of liability for any salvor not operating from any
ship or for any salvor operating solely on the ship to, or in
respect of which he is rendering salvage services, shall be
calculated according to a tonnage of 1,500 tons.
ARTICLE 7
The limit for passenger claims
1. In respect of claims arising on any distinct occasion for loss
of life or personal injury to passengers of a ship, the limit of
liability of the shipowner thereof shall be an amount of 175,000
Units of Account multiplied by the number of passengers which
the ship is authorised to carry according to the ship's certificate.
2. For the purpose of this Article "claims for loss of life or
personal injury to passengers of a ship" shall mean any such
claims brought by or on behalf of any person carried in that
ship —
(a) under a contract of passenger carriage; or
(b) who, with the consent of the carrier, is accompanying a
vehicle or live animals which are covered by a contract
for the carriage of goods.
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ARTICLE 8
Unit of Account
The Unit of Account referred to in Articles 6 and 7 is the
Special Drawing Right as defined by the International Monetary
Fund. The amounts mentioned in Articles 6 and 7 shall be
converted into the national currency of the State in which
limitation is sought, according to the value of that currency at
the date the limitation fund shall have been constituted,
payment is made, or security is given which under the law of
that State is equivalent to such payment.
ARTICLE 9
Aggregation of claims
1. The limits of liability determined in accordance with Article
6 shall apply to the aggregate of all claims which arise on any
distinct occasion —
(a) against the person or persons mentioned in paragraph 2
of Article 1 and any person for whose act, neglect or
default he or they are responsible; or
(b) against the shipowner of a ship rendering salvage
services from that ship and the salvor or salvors
operating from such ship and any person for whose act,
neglect or default he or they are responsible; or
(c) against the salvor or salvors who are not operating from
a ship or who are operating solely on the ship to, or in
respect of which, the salvage services are rendered and
any person for whose act, neglect or default he or they
are responsible.
2. The limits of liability determined in accordance with Article
7 shall apply to the aggregate of all claims subject thereto which
may arise on any distinct occasion against the person or persons
mentioned in paragraph 2 of Article 1 in respect of the ship
referred to in Article 7 and any person for whose act, neglect or
default he or they are responsible.
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ARTICLE 10
Limitation of liability without constitution of a limitation fund
1. Limitation of liability may be invoked notwithstanding that
a limitation fund as mentioned in Article 11 has not been
constituted.
2. If limitation of liability is invoked without the constitution of
a limitation fund, the provisions of Article 12 shall apply
correspondingly.
3. Questions of procedure arising under the rules of this
Article shall be decided in accordance with the national law of
the State Party in which action is brought.
CHAPTER III. THE LIMITATION FUND
ARTICLE 11
Constitution of the Fund
1. Any person alleged to be liable may constitute a fund with
the Court or other competent authority in any State Party in
which legal proceedings are instituted in respect of claims
subject to limitation. The fund shall be constituted in the sum of
such of the amounts set out in Articles 6 and 7 as are applicable
to claims for which that person may be liable, together with
interest thereon from the date of the occurrence giving rise to the
liability until the date of the constitution of the fund. Any fund
thus constituted shall be available only for the payment of
claims in respect of which limitation of liability can be invoked.
2. A fund may be constituted, either by depositing the sum, or
by producing a guarantee acceptable under the legislation of the
State Party where the fund is constituted and considered to be
adequate by the Court or other competent authority.
3. A fund constituted by one of the persons mentioned in
paragraph 1 (a), (b) or (c) or paragraph 2 of Article 9 or his
insurer shall be deemed constituted by all persons mentioned in
paragraph 1 (a), (b) or (c) or paragraph 2, respectively.
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ARTICLE 12
Distribution of the fund
1 Subject to the provisions of paragraphs 1 and 2 of Article 6
and of Article 7, the fund shall be distributed among the
claimants in proportion to their established claims against the
fund.
2. If, before the fund is distributed, the person liable, or his
insurer, has settled a claim against the fund 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.
3. The right of subrogation provided for in paragraph 2 may
also be exercised by persons other than those therein mentioned
in respect of any amount of compensation which they may have
paid, but only to the extent that such subrogation is permitted
under the applicable national law.
4. Where the person liable 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 pursuant
to paragraphs 2 and 3 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.
ARTICLE 13
Bar to other actions
1. Where a limitation fund has been constituted in accordance
with Article 11 any person having made a claim against the fund
shall be barred from exercising any right in respect of such a
claim against any other assets of a person by or on behalf of
whom the fund has been constituted.
2. After a limitation fund has been constituted in accordance
with Article 11 any ship or other property, belonging to a person
on behalf of whom the fund has been constituted, which has
been arrested or attached within the jurisdiction of a State Party
for a claim which may be raised against the fund, or any security
given, may be released by order of the Court or other competent
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authority of such State. However, such release shall always be
ordered if the limitation fund has been constituted —
(a) at the port where the occurrence took place, or, if it took
place out of port, at the first port of call thereafter; or
(b) at the port of disembarkation in respect of claims for loss
of life or personal injury; or
(c) at the port of discharge in respect of damage to cargo; or
(d) in the State where the arrest is made.
3. The rules of paragraphs 1 and 2 shall apply only if the
claimant may bring a claim against the limitation fund before the
Court administering that fund and the fund is actually available
and freely transferable in respect of that claim.
ARTICLE 14
Governing law
Subject to the provisions of this Chapter the rules relating
to the constitution and distribution of a limitation fund, and all
rules of procedure in connection therewith, shall be governed by
the law of the State Party in which the fund is constituted.
CHAPTER IV. SCOPE OF APPLICATION
ARTICLE 15
1. This Convention shall apply whenever any person referred
to in Article I seeks to limit his liability before the Court of a
State Party or seeks to procure the release of a ship or other
property or the discharge of any security given within the
jurisdiction of any such State.
2. A State Party may regulate by specific provisions of national
law the system of limitation of liability to be applied to vessels
which are —
(a) according to the law of that State, ships intended for
navigation on inland waterways;
(b) ships of less than 300 tons.
A State Party which makes use of the option provided for in
this paragraph shall inform the depositary of the limits of
liability adopted in its national legislation or of the fact that there
are none.
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3bis Notwithstanding the limit of liability prescribed in
paragraph 1 of article 7, a State Party may regulate by specific
provisions of national law the system of liability to be applied to
claims for loss of life or personal injury to passengers of a ship,
provided that the limit of liability is not lower than that
prescribed in paragraph 1 of article 7. A State Party which
makes use of the option provided for in this paragraph shall
inform the Secretary-General of the limits of liability adopted or
of the fact that there are none.
ARTICLE 18
Reservations
1 Any State may, at the time of signature, ratification,
acceptance, approval or accession, or at any time thereafter,
reserve the right —
(a) to exclude the application of article 2, paragraphs 1(d)
and (e);
(b) to exclude claims for damage within the meaning of the
International Convention on Liability and Compensation
for Damage in Connection with the Carriage of
Hazardous and Noxious Substances by Sea, 1996 or of
any amendment or Protocol thereto.
No other reservations shall be admissible to the substantive
provisions of this Convention.
PART II
PROVISIONS HAVING EFFECT IN CONNECTION WITH
CONVENTION
Interpretation
1. In this Part of this Schedule any reference to a numbered
article is a reference to the article of the Convention which is so
numbered.
Right to limit liability
2. Subject to paragraph 5, the right to limit liability under the
Convention shall apply in relation to any ship whether seagoing
or not, and the definition of "shipowner" in paragraph 2 of article
1 shall be construed accordingly.
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Claims subject to limitation
3. (1) Paragraph 1(d) of article 2 shall not apply unless
provision has been made by an order of the Minister for the
setting up and management of a fund to be used for the making
to a harbour authority of payments needed to compensate it for
the reduction, in consequence of the said paragraph 1(d), of
amounts recoverable by it in claims of the kind there mentioned,
and to be maintained by contributions from such authority
raised and collected by it in respect of vessels in like manner as
other sums so raised by it.
(2) Any order under subparagraph (1) may contain such
incidental and supplemental provisions as appear to the Minister
to be necessary or expedient.
Claims excluded from limitation
4. (1) Claims for damage within the meaning of the
International Convention on Liability and Compensation for
Damage in Connection with the Carriage of Hazardous and
Noxious Substances by Sea 1996, or any amendment of or
Protocol to that Convention, which arise from occurrences which
take place after the coming into force of section 178A of this Act
shall be excluded from the Convention.
(2) The claims excluded from the Convention by paragraph
(b) of article 3 are claims in respect of any liability incurred
under section 151 of this Act.
The general limits
5. (1) In the application of article 6 to a ship with a tonnage
less than 300 tons that article shall have effect as if —
(a) paragraph 1(a)(i) referred to 1,000,000 Units of Account;
and
(b) paragraph 1(b)(i) referred to 500,000 Units of Account.
(2) For the purposes of article 6 and this paragraph a ship's
tonnage shall be its gross tonnage calculated in such manner as
may be prescribed by an order made by the Minister.
(3) Any order under this paragraph shall, so far as appears
to the Minister to be practicable give effect to the regulations in
Annex I of the International Convention on Tonnage
Measurement of Ships 1969.
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Limit for passenger claims
6. (1) Article 7 shall not apply in respect of any seagoing ship;
and shall have effect in respect of any ship which is not seagoing
as if, in paragraph 1 of that article —
(a) after "thereof" there were inserted "in respect of each
passenger,";
(b) the words from "multiplied" onwards were omitted.
(2) In paragraph 2 of article 7 the reference to claims
brought on behalf of a person includes a reference to any claim
in respect of the death of a person under the Fatal Injuries
(Action for Damages) Act 1949.
Units of Account
7. (1) For the purpose of converting the amounts mentioned in
articles 6 and 7 from special drawing rights into United States
dollars one special drawing right shall be treated as equal to
such a sum in United States dollars as the International
Monetary Fund have fixed as being the equivalent of one special
drawing right for —
(a) the relevant date under paragraph 1 of article 8; or
(b) if no sum has been so fixed for that date, the last
preceding date for which a sum has been so fixed.
(2) A certificate given by or on behalf of the Minister
responsible for finance stating —
(a) that a particular sum in United States dollars has been
fixed as mentioned in subparagraph (1) for a particular
date; or
(b) that no sum has been so fixed for that date and that a
particular sum in United States dollars has been so fixed
for a date which is the last preceding date for which a
sum has been so fixed,
shall be conclusive evidence of those matters for the purposes of
those articles; and a document purporting to be such a
certificate shall, in any proceedings, be received in evidence and,
unless the contrary is proved, be deemed to be such a certificate.
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Constitution of fund
8. (1) The Minister may, with the concurrence of the Minister
responsible for finance, by order prescribe the rate of interest to
be applied for the purposes of paragraph 1 of article 11.
(2) Where a fund is constituted with the court in accordance
with article 11 for the payment of claims arising out of any
occurrence, the court may stay any proceedings relating to any
claim arising out of that occurrence which are pending against
the person by whom the fund has been constituted.
Distribution of fund
9. No lien or other right in respect of any ship or property shall
affect the proportions in which under article 12 the fund is
distributed among several claimants.
Bar to other actions
10. Where the release of a ship or other property is ordered
under paragraph 2 of article 13 the person on whose application
it is ordered to be released shall be deemed to have submitted to
the jurisdiction of the court to adjudicate on the claim for which
the ship or property was arrested or attached.
Meaning of "court"
11. References in the Convention and the preceding provisions of
this Part of this Schedule to the court are references to the
Supreme Court.
Meaning of "ship"
12. References in the Convention and in the preceding
provisions of this Part of this Schedule to a ship include
references to any structure (whether completed or in course of
completion) launched and intended for use in navigation as a
ship or part of a ship.
Meaning of "State Party"
13. An order made for the purpose of this paragraph and
declaring that any State specified in the order is a party to the
Convention as amended by the 1996 Protocol shall, subject to
the provisions of any subsequent order made for those purposes,
be conclusive evidence that the State is a party to the
Convention as amended by the 1996 Protocol."
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