MERCHANT SHIPPING (OIL POLLUTION) (JERSEY) ORDER 1997
JERSEY
REVISED EDITION OF THE LAWS
19.540
APPENDIX
Jersey Order in Council 49/1997
THE MERCHANT SHIPPING (OIL POLLUTION) (JERSEY) ORDER 1997
____________
(Registered on the 28th day of November 1997)
____________
At the Court at Buckingham Palace
____________
30th day of October 1997
____________
PRESENT
The Queen’s Most Excellent Majesty in Council
____________
HER MAJESTY, in exercise of the powers conferred upon Her by section 315(2) of the Merchant Shipping Act 1995 is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows –
Citation and commencement
1. This Order may be cited as the Merchant Shipping (Oil Pollution) (Jersey) Order 1997 and shall come into force on 1st December 1997.
Implementation of the Liability and Fund Conventions
2. Sections 152 to 170, 172 to 181, 277, 279, 281, 284, 308, 313 and 316 of, and Part I of Schedule 5 to, the Merchant Shipping Act 1995 shall, subject to the exceptions, adaptations and modifications specified in Schedule 1 to this Order, extend to Jersey and any instruments made, or to be made, under section 152(2), 157(2), 157(4), 163(1), 172(2) or 176(5) of that Act shall also extend to Jersey if registered in the Royal Court of Jersey and from the date of such registration.
Supplementary provision
3. After section 277 of the Merchant Shipping Act 1995, as extended to Jersey by virtue of article 2 above, there shall be inserted –
“277A. Accessories and abettors
Any person who knowingly or wilfully aids, abets, counsels, causes, procures or commands the commission of an offence under this Act shall be liable to be dealt with, tried and punished as a principal offender.”.
Interpretation
4. In this Order, “Jersey” means the Bailiwick of Jersey.
Revocation and transitional provisions
5.-(1) Subject to paragraph (2) below, the Merchant Shipping Act 1974 (Jersey) Order 1975,[1] the Merchant Shipping Act 1974 (Jersey) (Amendment) Order 1977[2] and the Merchant Shipping (Oil Pollution) Act 1971 (Jersey) Order 1981 are hereby revoked.
(2) The Merchant Shipping (Liability and Compensation for Oil Pollution Damage) (Transitional Provisions) Order 1996 shall, subject to the exceptions, adaptations and modifications specified in Schedule 2 to this Order, extend to Jersey.
N.H. NICHOLLS
Clerk of the Privy Council.
SCHEDULE 1
(Article 2)
EXCEPTIONS, ADAPTATIONS AND MODIFICATIONS SUBJECT TO WHICH PROVISIONS OF THE MERCHANT SHIPPING ACT 1995 EXTEND TO JERSEY
1. In section 152(1), in the definition of “Liability Convention country”, after “in force” add “, and includes the United Kingdom and any relevant British possession to which the Liability Convention has been extended”.
2. In section 153 –
(a) in paragraphs (a), (b) and (c) of subsection (1), for “the United Kingdom” substitute “Jersey”;
(b) in paragraphs (a) and (b) of subsection (2), for “the United Kingdom” substitute “Jersey”;
(c) in subsection (5), for “the United Kingdom” substitute “Jersey”;
(d) in subsection (8), for the words from “The Law Reform (Contributory Negligence) Act 1945” to “1948” substitute “Article 6 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960”.
3. In section 154 –
(a) in paragraphs (a), (b) and (c) of subsection (1), for “the United Kingdom” substitute “Jersey”;
(b) in paragraphs (a) and (b) of subsection (2), for “the United Kingdom” substitute “Jersey”;
(c) in subsection (4), for the words from “the Law Reform (Contributory Negligence) Act 1945” to “1948” substitute
“Article 6 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960”.
4. In section 158 –
(a) in subsection (3)(b), after “the Treasury” insert “of the United Kingdom”;
(b) in subsection (5), for “section 185 or 186” substitute “section 17 or 18 of the Merchant Shipping Act 1979 as extended to Jersey by the Merchant Shipping Act 1979 (Jersey) Order 1980”;
(c) in subsection (7), for “the United Kingdom” substitute “Jersey”.
5. In section 159 –
(a) in subsection 1(b), omit “(or in Scotland, expenses)”;
(b) omit subsection (2).
6. In paragraph (b) of section 160, for “section 185 or 186” substitute “section 17 or 18 of the Merchant Shipping Act 1979 as extended to Jersey by the Merchant Shipping Act 1979 (Jersey) Order 1980”.
7. In section 161, in the sidenote, for “United Kingdom” substitute “Jersey”.
8. In section 162, for “the United Kingdom” substitute “Jersey”.
9. In section 163 –
(a) in subsection (2), for “the United Kingdom” substitute “Jersey” (in two places) and for “United Kingdom ship” substitute “ship registered in Jersey”;
(b) in subsection (3)(a), for “United Kingdom ship” substitute “ship registered in Jersey” and for “Secretary of State” substitute “Committee”;
(c) in subsection (3)(b), for “the United Kingdom” substitute “Jersey”;
(d) in subsection (3)(c), for “Secretary of State” substitute “Committee”;
(e) in subsection (4), for “any officer of customs and excise or of the Secretary of State and, if the ship is a United Kingdom ship, to any proper officer” substitute “the Agent of the Impôts”;
(f) in subsection (5), for the words from “liable” onwards substitute “guilty of an offence and liable to a fine”;
(g) in subsection (6), for “liable on summary conviction to a fine not exceeding level 4 on the standard scale” substitute “guilty of an offence and liable to a fine not exceeding level 3 on the standard scale”;
(h) in subsection (7), for “the United Kingdom” substitute “Jersey”.
10. In section 164 –
(a) in the sidenote, for “Secretary of State” substitute “Committee”;
(b) in subsection (1), for “Secretary of State” substitute “Committee” and for “United Kingdom ship” substitute “ship registered in Jersey”;
(c) in subsection (2), for “Secretary of State” substitute “Committee”;
(d) in subsection (3), for “Secretary of State” substitute “the States”;
(e) in subsection (4), for “liable on summary conviction to a fine not exceeding level 4 on the standard scale” substitute “guilty of an offence and liable to a fine not exceeding level 3 on the standard scale”;
(f) for subsection (5) substitute –
“(5) The Committee shall send a copy of any certificate issued by it under this section in respect of a ship registered in Jersey to the Registrar of British ships for Jersey, and the Registrar shall make the copy available for public inspection.”.
11. For section 165(5) substitute –
“(5) The Third Party (Rights against Insurers) (Jersey) Law 1948 shall not apply in relation to any contract of insurance to which such a certificate as is mentioned in section 163 relates.”.
12. In section 166 –
(a) in the sidenote, for “United Kingdom”, substitute “Jersey”;
(b) omit subsection (1);
(c) in subsection (2), for “the United Kingdom” substitute “Jersey” (in three places);
(d) for subsection (4) substitute –
“(4) Part II of the Judgments (Reciprocal Enforcement) (Jersey) Law 1960 shall apply, whether or not it would so apply apart from this section, to any judgment given by a court in a Liability Convention country to enforce a claim in respect of a liability incurred under any provision corresponding to section 153; and in its application to such a judgment that Part shall have effect with the omission of paragraphs (2) and (3) of Article 6 of that Law.”.
13. In section 167(3), for “the United Kingdom” substitute “Jersey” and omit “, or in Scotland the execution of diligence,”.
14. In section 168, for “section 185” substitute “section 17 of the Merchant Shipping Act 1979 as extended to Jersey by the Merchant Shipping Act 1979 (Jersey) Order 1980” and for “Convention in Part I of Schedule 7” substitute “Convention on Limitation of Liability for Maritime Claims 1976”.
15. In section 170 –
(a) in subsection (1), in the definition of “the court”, for “High Court or, in Scotland, the Court of Session” substitute “Inferior Number of the Royal Court”;
(b) omit subsection (3);
(c) for subsection (4) substitute –
“(4) References in this Chapter to the territory of any country include the territorial sea of that country and, in the case of any Liability Convention country other than Jersey, the exclusive economic zone of that country established in accordance with international law, or, if such a zone has not been established, such area adjacent to the territorial sea of that country and extending not more than 200 nautical miles from the baselines from which the breadth of that sea is measured as may have been determined by that State in question in accordance with international law.”.
16. In section 172(1)(d), after “is in force” add “, and includes the United Kingdom and any relevant British possession to which the Fund Convention has been extended”.
17. In section 173 –
(a) in subsection (1), for “the United Kingdom” substitute “Jersey” and for “its national waters” substitute “waters landward of the baselines for measuring the breadth of the territorial sea of Jersey”;
(b) in subsection (3), for “the United Kingdom” substitute “Jersey”;
(c) in subsection (4)(a), for “the United Kingdom” substitute “Jersey”;
(d) in subsection (8), for “Secretary of State” substitute “States” (in two places);
(e) in subsection (9)(a), for “Secretary of State” substitute “States”;
(f) in subsection (9)(b), for “on summary conviction by a fine not exceeding level 5” substitute “on conviction by a fine not exceeding level 4”;
(g) in subsection (10), in the definition of “company”, for “the United Kingdom” substitute “Jersey”;
(h) in subsection (10), for the definition of “group” substitute –
“ ‘group’ in relation to companies, means a holding company and its subsidiaries as defined by Article 2 of the Companies (Jersey) Law 1991, subject, in the case of a company incorporated outside Jersey, to any necessary modifications of those definitions;”.
18. In section 174 –
(a) in subsection (1), for “Secretary of State” substitute “Committee”;
(b) in subsection (4), for “Secretary of State” substitute “Committee”;
(c) in subsection (5), for “on summary conviction to a fine not exceeding level 5” substitute “on conviction to a fine not exceeding level 4”;
(d) in subsection (6), for the words from “liable” onwards substitute “guilty of an offence and liable to a fine or to imprisonment for a term not exceeding twelve months, or to both”.
19. In section 175 –
(a) in subsection (1), for “the United Kingdom” substitute “Jersey”;
(b) in subsection (2), for “ ‘United Kingdom’ ” substitute “ ‘Jersey’ ”, omit paragraph (a), and for “the United Kingdom” substitute “Jersey” (in two places);
(c) in subsection (3), for “the United Kingdom” substitute “Jersey”;
(d) omit subsection (4).
20. In section 176(4)(b), after “the Treasury” insert “of the United Kingdom”.
21. In section 177 –
(a) omit subsection (1);
(b) in subsection (3), for “the United Kingdom” substitute “Jersey”;
(c) for subsection (4) substitute –
“(4) Subject to subsection (5) below, Part II of the Judgments (Reciprocal Enforcement) (Jersey) Law 1960 shall apply, whether or not it would so apply apart from this subsection, to any judgment given by a court in a Fund Convention country to enforce a claim in respect of liability incurred under any provision corresponding to section 175; and in its application to such a judgment the said Part shall have effect with the omission of paragraphs (2) and (3) of Article 6 of that Law.”;
(d) in subsection (5), for “Part I of the Act of 1933” substitute “Part II of the Law of 1960”;
(e) after subsection (5) insert –
“(6) Rules may be made in the manner prescribed in the Royal Court (Jersey) Law 1948 for the purposes of subsection (2) above.”.
22. In section 178 –
(a) in subsection (1), for “the United Kingdom” substitute “Jersey”;
(b) in subsection (2), for “the United Kingdom” substitute “Jersey”.
23. In section 179(2), for “the United Kingdom” substitute “Jersey”.
24. In section 279 –
(a) in subsection (1), for “the United Kingdom” substitute “Jersey”;
(b) in subsection (2), for “the United Kingdom” substitute “Jersey”.
25. In section 281 –
(a) in paragraph (a)(i), for “any United Kingdom ship” substitute “a ship registered in Jersey”;
(b) omit paragraph (a)(iii);
(c) in paragraph (b), for “any United Kingdom ship” substitute “a ship registered in Jersey”;
(d) for the words from “within the jurisdiction” to “that court” substitute “in Jersey, any court which would have had jurisdiction in relation to the offence had it been committed on board a ship registered in Jersey within the limits of its ordinary jurisdiction to try the offence”.
26. In section 284 –
(a) for paragraphs (b) and (c) of subsection (1), substitute –
“(b) the Harbourmaster and any officer of the Committee,
(c) the Agent of the Impôts or any officer of the Impôts,
(cc) any fisheries officer.”;
(b) in subsection (2), for the words from “liable” onwards substitute “guilty of an offence and liable to a fine”;
(c) in subsection (4), omit paragraph (b) and, in paragraph (i), the words “or, surveyor”;
(d) in subsection (5), for the words from “liable” onwards substitute “guilty of an offence and liable to a fine”;
(e) in subsection (6), for “an officer of customs and excise” substitute “the Agent of the Impôts or any officer of the Impôts” (in two places);
(f) omit subsection (7);
(g) omit subsection (8).
27. In section 308, omit subsections (2) to (4).
28. In section 313 –
(a) in subsection (1) –
(i) omit all the definitions apart from the definitions of “British citizen”, “commissioned military officer”, “commissioned naval officer”, “consular officer”, “contravention”, “harbour”, “master”, “port”, “relevant British possession” and “ship”;
(ii) after the definition of “commissioned naval officer”, insert –
“ ‘the Committee’ means the Harbours and Airport Committee of the States of Jersey;”;
(iii) after the definition of “contravention”, insert –
“ ‘fisheries officer’ has the same meaning as in Article 14 of the Sea Fisheries (Jersey) Law 1994;”;
(iv) after the definition of “harbour”, insert –
“ ‘Harbourmaster’ has the same meaning as in Article 2 of the Harbours (Administration) (Jersey) Law 1961;”;
(v) after the definition of “port”, insert –
“ ‘registered’ means, in relation to a ship registered in Jersey, registered under the provisions of the Merchant Shipping Act 1894;”;
(vi) after the definition of “ship”, insert –
“ ‘standard scale’ means the standard scale of fines for the time being set out in the Schedule to the Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993;”;
(b) omit subsections (2), (2A) and (3).
29. In section 316, omit subsection (2).
30. In Schedule 5, Part I, in the text of Article 4(4)(c) of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992, for “(c)”, substitute “(b)”.
SCHEDULE 2
(Article 5)
EXCEPTIONS, ADAPTATIONS AND MODIFICATIONS SUBJECT TO WHICH THE MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION DAMAGE) (TRANSITIONAL PROVISIONS) ORDER 1996 EXTENDS TO JERSEY
1. In article 1, omit the words “and shall come into force on 30th May 1996”.
2. In article 2 –
(a) in the definition of “the Act”, after “1995” insert “as extended to Jersey by the 1997 Order”;
(b) omit “and” following the definition of “the 1992 Fund Convention”; and
(c) at the end, add –
“ ‘the 1975 Order’ means the Merchant Shipping Act 1974 (Jersey) Order 1975;
‘the 1981 Order’ means the Merchant Shipping (Oil Pollution) Act 1971 (Jersey) Order 1981; and
‘the 1997 Order’ means the Merchant Shipping (Oil Pollution) (Jersey) Order 1997”.
3. In article 3(1), for “Chapters III and IV of Part VI of the Act” substitute “the 1997 Order”; for “Schedule 4 and Part II of Schedule 5 to the Act” and for “Schedule 4 and Part II of Schedule 5 to that Act” substitute “the 1975 and 1981 Orders”; and for “the United Kingdom” substitute “Jersey”.
4. In article 4, after “United Kingdom” insert “in respect of Jersey”.
5. For paragraph 1 of Part A of Schedule 2, substitute –
“1. References to a State being a Party to a Convention shall be construed as references to the United Kingdom being Party to such a Convention in respect of Jersey.”.
6. In paragraph 3 of Part A of Schedule 2, for “as a reference to sections 152 to 170 in Schedule 4 to the Act” substitute “a reference to the 1981 Order”.
7. In paragraph 4 of Part A of Schedule 2, for “sections 172 to 181 in Schedule 4 to the Act” substitute “the 1975 Order”.
8. In paragraph 5 of Part A of Schedule 2 –
(a) for “section 153 in Schedule 5 to the Act” substitute “section 1 of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order”;
(b) for “section 156(b) in Schedule 4 to the Act” substitute “section 3(b) of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order”.
9. In paragraph 1 of Part B of Schedule 2, for “this Order to the date on which the Order ceases to have effect” substitute “the 1997 Order to the date on which the Merchant Shipping (Liability and Compensation for Oil Pollution Damage) (Transitional Provisions) Order 1996 ceases to have effect in the United Kingdom”.
10. In paragraph 3 of Part B of Schedule 2, for “sections 172 to 181 of the Act as set out in Schedule 4 to the Act” substitute “the 1975 Order”.
11. In paragraph 5 of Part B of Schedule 2, for “sections 152 to 170 of the Act as set out in Schedule 4 to the Act” substitute “the 1981 Order”.
12. For Schedule 3 substitute –
“SCHEDULE 3
(Article 5)
The text of Article XII bis of the 1992 Liability Convention and Article 36 bis of the 1992 Fund Convention, as modified by Schedule 2 to this Order.
Article XII bis
TRANSITIONAL PROVISIONS
The following transitional provisions shall apply when at the time of an incident the United Kingdom is Party in respect of Jersey both to the 1992 Liability Convention and to the 1969 Liability Convention:
(a) where an incident has caused pollution damage within the scope of sections 152 to 170 of the Act liability under sections 152 to 170 of the Act shall be deemed to be discharged if, and to the extent that, it also arises under the 1981 Order;
(b) where an incident had caused pollution damage within the scope of sections 152 to 170 of the Act and the United Kingdom in respect of Jersey is Party both to the 1992 Liability Convention and to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, liability remaining to be discharged after the application of sub-paragraph (a) of this Article shall arise under sections 152 to 170 of the Act only to the extent that pollution damage remains uncompensated after application of the 1975 Order;
(c) subsection (1)(i) of section 156 of the Act refers to liability under section 153 of the Act or under section 1 of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order, as appropriate and subsection (1)(ii) of section 156 applies to the persons referred to in section 156(2) of the Act or in section 3(b) of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order, as appropriate;
(d) in the application of section 158 of the Act the total sum of the fund to be constituted shall be reduced by the amount by which liability has been deemed to be discharged in accordance with sub-paragraph (a) of this Article.
Article 36 bis
The following transitional provisions shall apply from the date of entry into force of the 1997 Order to the date on which the Merchant Shipping (Liability and Compensation for Oil Pollution Damage) (Transitional Provisions) Order 1996 ceases to have effect in the United Kingdom:
(b) Where an incident has caused pollution damage within the scope of sections 172 to 181 of the Act, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1981 Order, the 1975 Order and sections 152 to 170 of the Act, provided that, in respect of pollution damage within the scope of sections 172 to 181 of the Act in respect of a Party to this Convention but not a Party to the 1971 Fund Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person would have been unable to obtain full and adequate compensation had that State been party to each of the 1969 Liability Convention, the 1992 Liability Convention and the 1971 Fund Convention.
(c) In the application of Part I of Schedule 5 to the Act the amount to be taken into account in determining the aggregate amount of compensation payable by the Fund shall also include the amount of compensation actually paid under the 1981 Order, if any, and the amount of compensation actually paid or deemed to have been paid under the 1975 Order.
(d) Section 179(1) of the Act shall also apply to the rights enjoyed under the 1981 Order.”.
MERCHANT SHIPPING ACT 1995
CHAPTER 21
ARRANGEMENT OF SECTIONS
PART I
BRITISH SHIPS
* * * * * * *
PART II
REGISTRATION
* * * * * * *
PART III
MASTERS AND SEAMEN
* * * * * * *
PART IV
SAFETY
* * * * * * *
PART V
FISHING VESSELS
* * * * * * *
PART VI
PREVENTION OF POLLUTION
CHAPTER I
POLLUTION GENERALLY
* * * * * * *
CHAPTER II
OIL POLLUTION
* * * * * * *
CHAPTER III
LIABILITY FOR OIL POLLUTION
Preliminary
Section
152.
Meaning of “the Liability Convention” and related expressions.
Liability
153.
Liability for oil pollution in case of tankers.
154.
Liability for oil pollution in case of other ships.
155.
Exceptions from liability under sections 153 and 154.
156.
Restriction of liability for oil pollution.
Limitation of liability
157.
Limitation of liability under section 153.
158.
Limitation actions.
159.
Restriction on enforcement after establishment of limitation fund.
160.
Concurrent liabilities of owners and others.
161.
Establishment of limitation fund outside United Kingdom.
162.
Extinguishment of claims.
Compulsory insurance
163.
Compulsory insurance against liability for pollution.
164.
Issue of certificate by Secretary of State.
165.
Rights of third parties against insurers.
Supplementary
166.
Jurisdiction of United Kingdom courts and registration of foreign judgments.
167.
Government ships.
168.
Limitation of liability under section 154.
169.
Saving for recourse actions.
170.
Interpretation.
171.
* * * * * * *
CHAPTER IV
INTERNATIONAL OIL POLLUTION COMPENSATION FUND
Preliminary
172.
Meaning of the “Liability Convention”, “the Fund Convention” and related expressions.
Contributions to Fund
173.
Contributions by importers of oil and others.
174.
Power to obtain information.
Compensation for persons suffering pollution damage
175.
Liability of the Fund.
176.
Limitation of Fund’s liability under section 175.
Supplemental
177.
Jurisdiction and effect of judgments.
178.
Extinguishment of claims.
179.
Subrogation.
180.
Supplementary provisions as to proceedings involving the Fund.
181.
Interpretation.
182.
* * * * * * *
PART VII
LIABILITY OF SHIPOWNERS AND OTHERS
* * * * * * *
PART VIII
LIGHTHOUSES
* * * * * * *
PART IX
SALVAGE AND WRECK
* * * * * * *
PART X
ENFORCEMENT OFFICERS AND POWERS
* * * * * * *
PART XI
ACCIDENT INVESTIGATIONS AND INQUIRIES
* * * * * * *
PART XII
LEGAL PROCEEDINGS
Prosecution of offences
274.
* * * * * * *
275.
* * * * * * *
276.
* * * * * * *
277.
Offences by officers of bodies corporate.
278.
* * * * * * *
Jurisdiction
279.
Jurisdiction in relation to offences.
280.
* * * * * * *
281.
Jurisdiction in case of offences on board ship.
282.
* * * * * * *
Return of offenders
283.
* * * * * * *
Detention of ship and distress on ship
284.
Enforcing detention of ship.
285.
* * * * * * *
Special evidential provisions
286.
* * * * * * *
287.
* * * * * * *
288.
* * * * * * *
289.
* * * * * * *
290.
* * * * * * *
Service of documents
291.
* * * * * * *
Part XIII
SUPPLEMENTAL
Administration
292.
* * * * * * *
293.
* * * * * * *
294.
* * * * * * *
295.
* * * * * * *
296.
* * * * * * *
297.
* * * * * * *
298.
* * * * * * *
299.
* * * * * * *
300.
* * * * * * *
301.
* * * * * * *
Financial provisions
302.
* * * * * * *
303.
* * * * * * *
304.
* * * * * * *
305.
* * * * * * *
Subordinate legislation
306.
* * * * * * *
Application of Act to certain descriptions of ships, etc.
307.
* * * * * * *
308.
Application of Act to government ships.
309.
* * * * * * *
310.
* * * * * * *
311.
* * * * * * *
Special provisions for Scots law
312.
* * * * * * *
Final provisions
313.
Definitions.
313A.
* * * * * * *
314.
* * * * * * *
315.
* * * * * * *
316.
Short title and commencement.
SCHEDULES:
Schedule 1 –
* * * * *
Schedule 2 –
* * * * *
Schedule 3 –
* * * * *
Schedule 4 –
* * * * *
Schedule 5 –
Overall Limit on Liability of Fund.
Part I –
Permanent provision.
Part II –
* * * * *
Schedule 6 –
* * * * *
Schedule 7 –
* * * * *
Schedule 8 –
* * * * *
Schedule 9 –
* * * * *
Schedule 10 –
* * * * *
Schedule 11 –
* * * * *
Schedule 12 –
* * * * *
Schedule 13 –
* * * * *
Schedule 14 –
* * * * *
ELIZABETH II
MERCHANT SHIPPING ACT 1995
1995 CHAPTER 21
AN ACT to consolidate the Merchant Shipping Acts 1894 to 1994 and other enactments relating to merchant shipping.
[19th July 1995]
BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows[3] –
Part I
British Ships
* * * * * * *
PART II
REGISTRATION
* * * * * * *
PART III
MASTERS AND SEAMEN
* * * * * * *
PART IV
SAFETY
* * * * * * *
PART V
FISHING VESSELS
* * * * * * *
PART VI
PREVENTION OF POLLUTION
CHAPTER I
POLLUTION GENERALLY
* * * * * * *
CHAPTER II
OIL POLLUTION
* * * * * * *
CHAPTER III
LIABILITY FOR OIL POLLUTION
Preliminary
Meaning of “the Liability Convention” and related expressions
152.-(1) In this Chapter –
“the Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage 1992;
“Liability Convention country” means a country in respect of which the Liability Convention is in force[, and includes the United Kingdom and any relevant British possession to which the Liability Convention has been extended]; and
“Liability Convention State” means a State which is a party to the Convention.
(2) If Her Majesty by Order in Council declares that any State specified in the Order is a party to the Liability Convention in respect of any country so specified the Order shall, while in force, be conclusive evidence that that State is a party to the Liability Convention in respect of that country.
Liability
Liability for oil pollution in case of tankers
153.-(1) Where, as a result of any occurrence, any oil is discharged or escapes from a ship to which this section applies, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable –
(a) for any damage caused outside the ship in the territory of [Jersey] by contamination resulting from the discharge or escape; and
(b) for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the territory of [Jersey] by contamination resulting from the discharge or escape; and
(c) for any damage caused in the territory of [Jersey] by any measures so taken.
(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship to which this section applies by the contamination that might result if there were a discharge or escape of oil from the ship, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable –
(a) for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the territory of [Jersey]; and
(b) for any damage caused outside the ship in the territory of [Jersey] by any measures so taken;
and in this Chapter any such threat is referred to as a relevant threat of contamination.
(3) Subject to subsection (4) below, this section applies to any ship constructed or adapted for carrying oil in bulk as cargo.
(4) Where any ship so constructed or adapted is capable of carrying other cargoes besides oil, this section shall apply to any such ship –
(a) while it is carrying oil in bulk as cargo; and
(b) unless it is proved that no residues from the carriage of any such oil remain in the ship, while it is on any voyage following the carriage of any such oil,
but not otherwise.
(5) Where a person incurs a liability under subsection (1) or (2) above he shall also be liable for any damage or cost for which he would be liable under that subsection if the references in it to the territory of [Jersey] included the territory of any other Liability Convention country.
(6) Where –
(a) as a result of any occurrence, a liability is incurred under this section by the owner of each of two or more ships; but
(b) the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,
each of the owners shall be liable, jointly with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.
(7) For the purposes of this Chapter –
(a) references to a discharge or escape of oil from a ship are references to such a discharge or escape wherever it may occur, and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank;
(b) where more than one discharge or escape results from the same occurrence or from a series of occurrences having the same origin, they shall be treated as one, but any measures taken after the first of them shall be deemed to have been taken after the discharge or escape; and
(c) where a relevant threat of contamination results from a series of occurrences having the same origin, they shall be treated as a single occurrence.
(8) [Article 6 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960[4]] shall apply in relation to any damage or cost for which a person is liable under this section, but which is not due to his fault, as if it were due to his fault.
Liability for oil pollution in case of other ships
154.-(1) Where, as a result of any occurrence, any oil is discharged or escapes from a ship other than a ship to which section 153 applies, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable –
(a) for any damage caused outside the ship in the territory of [Jersey] by contamination resulting from the discharge or escape; and
(b) for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the territory of [Jersey] by contamination resulting from the discharge or escape; and
(c) for any damage so caused in the territory of [Jersey] by any measures so taken.
(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship other than a ship to which section 153 applies by the contamination which might result if there were a discharge or escape of oil from the ship, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable –
(a) for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the territory of [Jersey]; and
(b) for any damage caused outside the ship in the territory of [Jersey] by any measures so taken;
and in the subsequent provisions of this Chapter any such threat is referred to as a relevant threat of contamination.
(3) Where –
(a) as a result of any occurrence, a liability is incurred under this section by the owner of each of two or more ships; but
(b) the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,
each of the owners shall be liable, jointly with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.
(4) [Article 6 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960] shall apply in relation to any damage or cost for which a person is liable under this section, but which is not due to his fault, as if it were due to his fault.
(5) In this section “ship” includes a vessel which is not seagoing.
Exceptions from liability under sections 153 and 154
155. No liability shall be incurred by the owner of a ship under section 153 or 154 by reason of any discharge or escape of oil from the ship, or by reason of any relevant threat of contamination, if he proves that the discharge or escape, or (as the case may be) the threat of contamination –
(a) resulted from an act of war, hostilities, civil war, insurrection or an exceptional, inevitable and irresistible natural phenomenon; or
(b) was due wholly to anything done or omitted to be done by another person, not being a servant or agent of the owner, with intent to do damage; or
(c) was due wholly to the negligence or wrongful act of a government or other authority in exercising its function of maintaining lights or other navigational aids for the maintenance of which it was responsible.
Restriction of liability for oil pollution
156.-(1) Where, as a result of any occurrence –
(a) any oil is discharged or escapes from a ship (whether one to which section 153 or one to which section 154 applies); or
(b) there arises a relevant threat of contamination,
then, whether or not the owner of the ship in question incurs a liability under section 153 or 154 –
(i) he shall not be liable otherwise than under that section for any such damage or cost as is mentioned in it, and
(ii) no person to whom this paragraph applies shall be liable for any such damage or cost unless it resulted from anything done or omitted to be done by him either with intent to cause any such damage or cost or recklessly and in the knowledge that any such damage or cost would probably result.
(2) Subsection (1)(ii) above applies to –
(a) any servant or agent of the owner of the ship;
(b) any person not falling within paragraph (a) above but employed or engaged in any capacity on board the ship or to perform any service for the ship;
(c) any charterer of the ship (however described and including a bareboat charterer), and any manager or operator of the ship;
(d) any person performing salvage operations with the consent of the owner of the ship or on the instructions of a competent public authority;
(e) any person taking any such measures as are mentioned in subsection (1)(b) or (2)(a) of section 153 or 154;
(f) any servant or agent of a person falling within paragraph (c), (d) or (e) above.
(3) The liability of the owner of a ship under section 153 or 154 for any impairment of the environment shall be taken to be a liability only in respect of –
(a) any resulting loss of profits; and
(b) the cost of any reasonable measures of reinstatement actually taken or to be taken.
Limitation of liability
Limitation of liability under section 153
157.-(1) Where, as a result of any occurrence, the owner of a ship incurs liability under section 153 by reason of a discharge or escape or by reason of any relevant threat of contamination, then (subject to subsection (3) below) –
(a) he may limit that liability in accordance with the provisions of this Chapter; and
(b) if he does so, his liability (being the aggregate of his liabilities under section 153 resulting from the occurrence) shall not exceed the relevant amount.
(2) In subsection (1) above, “the relevant amount” means –
(a) in relation to a ship, not exceeding 5,000 tons, three million special drawing rights;
(b) in relation to a ship exceeding 5,000 tons, three million special drawing rights together with an additional 420 special drawing rights for each ton of its tonnage in excess of 5,000 tons up to a maximum amount of 59.7 million special drawing rights;
but the Secretary of State may by order make such amendments of paragraphs (a) and (b) above as appear to him to be appropriate for the purpose of giving effect to the entry into force of any amendment of the limits of liability laid down in paragraph 1 of Article V of the Liability Convention.
(3) Subsection (1) above shall not apply in a case where it is proved that the discharge or escape, or (as the case may be) the relevant threat of contamination, resulted from anything done or omitted to be done by the owner either with intent to cause any such damage or cost as is mentioned in section 153 or recklessly and in the knowledge that any such damage or cost would probably result.
(4) For the purposes of this section a ship’s tonnage shall be its gross tonnage calculated in such manner as may be prescribed by an order made by the Secretary of State.
(5) Any such order shall, so far as it appears to the Secretary of State to be practicable, give effect to the regulations in Annex 1 of the International Convention on Tonnage Measurement of Ships 1969.
Limitation actions
158.-(1) Where the owner of a ship has or is alleged to have incurred a liability under section 153 he may apply to the court for the limitation of that liability to an amount determined in accordance with section 157.
(2) If on such an application the court finds that the applicant has incurred such a liability and is entitled to limit it, the court shall, after determining the limit of the liability and directing payment into court of the amount of that limit –
(a) determine the amounts that would, apart from the limit, be due in respect of the liability to the several persons making claims in the proceedings; and
(b) direct the distribution of the amount paid into court (or, as the case may be, so much of it as does not exceed the liability) among those persons in proportion to their claims, subject to the following provisions of this section.
(3) A payment into court of the amount of a limit determined in pursuance of this section shall be made in sterling; and
(a) for the purpose of converting such an amount from special drawing rights into sterling one special drawing right shall be treated as equal to such a sum in sterling as the International Monetary Fund have fixed as being the equivalent of one special drawing right for –
(i) the day on which the determination is made; or
(ii) if no sum has been so fixed for that day, the last day before that day for which a sum has been so fixed;
(b) a certificate given by or on behalf of the Treasury [of the United Kingdom] stating –
(i) that a particular sum in sterling has been so fixed for the day on which the determination was made, or
(ii) that no sum has been so fixed for that day and that a particular sum in sterling has been so fixed for a day which is the last day for which a sum has been so fixed before the day on which the determination was made,
shall be conclusive evidence of those matters for the purposes of this Chapter;
(c) 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.
(4) No claim shall be admitted in proceedings under this section unless it is made within such time as the court may direct or such further time as the court may allow.
(5) Where any sum has been paid in or towards satisfaction of any claim in respect of the damage or cost to which the liability extends –
(a) by the owner or the persons referred to in section 165 as “the insurer”; or
(b) by a person who has or is alleged to have incurred a liability, otherwise than under section 153, for the damage or cost and who is entitled to limit his liability in connection with the ship by virtue of [section 17 or 18 of the Merchant Shipping Act 1995 as extended to Jersey by the Merchant Shipping Act 1979 (Jersey) Order 1980[5]];
the person who paid the sum shall, to the extent of that sum, be in the same position with respect to any distribution made in proceedings under this section as the person to whom it was paid would have been.
(6) Where the person who incurred the liability has voluntarily made any reasonable sacrifice or taken any other reasonable measures to prevent or reduce damage to which the liability extends or might have extended he shall be in the same position with respect to any distribution made in proceedings under this section as if he had a claim in respect of the liability equal to the cost of the sacrifice or other measures.
(7) The court may, if it thinks fit, postpone the distribution of such part of the amount to be distributed as it deems appropriate having regard to any claims that may later be established before a court of any country outside [Jersey].
(8) No lien or other right in respect of any ship or other property shall affect the proportions in which any amount is distributed in accordance with subsection (2)(b) above.
Restriction on enforcement after establishment of limitation fund
159.-(1) Where the court has found that a person who has incurred a liability under section 153 is entitled to limit that liability to any amount and he has paid into court a sum not less than that amount –
(a) the court shall order the release of any ship or other property arrested in connection with a claim in respect of that liability or any security given to prevent or obtain release from such an arrest; and
(b) no judgment or decree for any such claim shall be enforced, except so far as it is for costs * * *,
if the sum paid into court, or such part thereof as corresponds to the claim, will be actually available to the claimant or would have been available to him if the proper steps in the proceedings under section 158 had been taken.
(2) * * * * *
Concurrent liabilities of owners and others
160. Where, as a result of any discharge or escape of oil from a ship or as a result of any relevant threat of contamination, the owner of the ship incurs a liability under section 153 and any other person incurs a liability, otherwise than under that section, for any such damage or cost as is mentioned in subsection (1) or (2) of that section then, if –
(a) the owner has been found, in proceedings under section 158 to be entitled to limit his liability to any amount and has paid into court a sum not less than that amount; and
(b) the other person is entitled to limit his liability in connection with the ship by virtue of [section 17 or 18 of the Merchant Shipping Act 1979 as extended to Jersey by the Merchant Shipping Act 1979 (Jersey) Order 1980];
no proceedings shall be taken against the other person in respect of his liability, and if any such proceedings were commenced before the owner paid the sum into court, no further steps shall be taken in the proceedings except in relation to costs.
Establishment of limitation fund outside [Jersey]
161. Where the events resulting in the liability of any person under section 153 also resulted in a corresponding liability under the law of another Liability Convention country sections 159 and 160 shall apply as if the references to sections 153 and 158 included references to the corresponding provisions of that law and the references to sums paid into court included references to any sums secured under those provisions in respect of the liability.
Extinguishment of claims
162. No action to enforce a claim in respect of a liability incurred under section 153 or 154 shall be entertained by any court in [Jersey] unless the action is commenced not later than three years after the claim arose nor later than six years after the occurrence or first of the occurrences resulting in the discharge or escape, or (as the case may be) in the relevant threat of contamination, by reason of which the liability was incurred.
Compulsory insurance
Compulsory insurance against liability for pollution
163.-(1) Subject to the provisions of this Chapter relating to Government ships, subsection (2) below shall apply to any ship carrying in bulk a cargo of more than 2,000 tons of oil of a description specified in regulations made by the Secretary of State.
(2) The ship shall not enter or leave a port in [Jersey] or arrive at or leave a terminal in the territorial sea of [Jersey] nor, if the ship is a [ship registered in Jersey], a port in any other country or a terminal in the territorial sea of any other country, unless there is in force a certificate complying with the provisions of subsection (3) below and showing that there is in force in respect of the ship a contract of insurance or other security satisfying the requirements of Article VII of the Liability Convention (cover for owner’s liability).
(3) The certificate must be –
(a) if the ship is a [ship registered in Jersey], a certificate issued by the [Committee];
(b) if the ship is registered in a Liability Convention country other than [Jersey], a certificate issued by or under the authority of the government of the other Liability Convention country; and
(c) if the ship is registered in a country which is not a Liability Convention country, a certificate issued by the [Committee] by or under the authority of the government of any Liability Convention country other than the United Kingdom.
(4) Any certificate required by this section to be in force in respect of a ship shall be carried in the ship and shall, on demand, be produced by the master to [the Agent of the Impôts or any other officer of the Impôts].
(5) If a ship enters or leaves, or attempts to enter or leave, a port or arrives at or leaves, or attempts to arrive at or leave, a terminal in contravention of subsection (2) above, the master or owner shall be [guilty of an offence and liable to a fine].
(6) If a ship fails to carry, or the master of a ship fails to produce, a certificate as required by subsection (4) above, the master shall be [guilty of an offence and liable to a fine not exceeding level 3 on the standard scale].
(7) If a ship attempts to leave a port in [Jersey] in contravention of this section the ship may be detained.
Issue of certificate by [Committee]
164.-(1) Subject to subsection (2) below, if the [Committee] is satisfied, on the application for such a certificate as is mentioned in section 163 in respect of a [ship registered in Jersey] or a ship registered in any country which is not a Liability Convention country, that there will be in force in respect of the ship, throughout the period for which the certificate is to be issued, a contract of insurance or other security satisfying the requirements of Article VII of the Liability Convention, the [Committee] shall issue such a certificate to the owner.
(2) If the [Committee] is of opinion that there is a doubt whether the person providing the insurance or other security will be able to meet his obligations thereunder, or whether the insurance or other security will cover the owner’s liability under section 153 in all circumstances, he may refuse the certificate.
(3) The [States] may make regulations providing for the cancellation and delivery up of a certificate under this section in such circumstances as may be prescribed by the regulations.
(4) If a person required by regulations under subsection (3) above to deliver up a certificate fails to do so he shall be [guilty of an offence and liable to a fine not exceeding level 3 on the standard scale].
[(5) The Committee shall send a copy of any certificate issued by it under this section in respect of a ship registered in Jersey to the Registrar of British ships for Jersey, and the Registrar shall make the copy available for public inspection.]
Rights of third parties against insurers
165.-(1) Where it is alleged that the owner of a ship has incurred a liability under section 153 as a result of any discharge or escape of oil occurring, or as a result of any relevant threat of contamination arising, while there was in force a contract of insurance or other security to which such a certificate as is mentioned in section 163 related, proceedings to enforce a claim in respect of the liability may be brought against the person who provided the insurance or other security (in the following provisions of this section referred to as “the insurer”).
(2) In any proceedings brought against the insurer by virtue of this section it shall be a defence (in addition to any defence affecting the owner’s liability) to prove that the discharge or escape, or (as the case may be) the threat of contamination, was due to the wilful misconduct of the owner himself.
(3) The insurer may limit his liability in respect of claims made against him by virtue of this section in like manner and to the same extent as the owner may limit his liability but the insurer may do so whether or not the discharge or escape, or (as the case may be) the threat of contamination, resulted from anything done or omitted to be done by the owner as mentioned in section 157(3).
(4) Where the owner and the insurer each apply to the court for the limitation of his liability any sum paid into court in pursuance of either application shall be treated as paid also in pursuance of the other.
[(5) The Third Party (Rights against Insurers) (Jersey) Law 1948[6] shall not apply in relation to any contract of insurance to which such a certificate as is mentioned in section 163 relates.]
Supplementary
Jurisdiction of [Jersey] courts and registration of foreign judgments
166.-(1) * * * * *
(2) Where –
(a) any oil is discharged or escapes from a ship but does not result in any damage caused by contamination in the territory of [Jersey] and no measures are reasonably taken to prevent or minimise such damage in that territory; or
(b) any relevant threat of contamination arises but no measures are reasonably taken to prevent or minimise such damage in the territory of [Jersey],
no court in [Jersey] shall entertain any action (whether in rem or in personam) to enforce a claim arising from any relevant damage or cost –
(i) against the owner of the ship, or
(ii) against any person to whom section 156(1)(ii) applies, unless any such damage or cost resulted from anything done or omitted to be done as mentioned in that provision.
(3) In subsection (2) above, “relevant damage or cost” means –
(a) in relation to any such discharge or escape as is mentioned in paragraph (a) of that subsection, any damage caused in the territory of another Liability Convention country by contamination resulting from the discharge or escape, or any cost incurred in taking measures to prevent or minimise such damage in the territory of another Liability Convention country;
(b) in relation to any such threat of contamination as is mentioned in paragraph (b) of that subsection, any cost incurred in taking measures to prevent or minimise such damage in the territory of another Liability Convention country; or
(c) any damage caused by any measures taken as mentioned in paragraph (a) or (b) above;
and section 156(2)(e) shall have effect for the purposes of subsection (2)(ii) above as if it referred to any person taking any such measures as are mentioned in paragraph (a) or (b) above.
[(4) Part II of the Judgments (Reciprocal Enforcement) (Jersey) Law 1960[7] shall apply, whether or not it would so apply apart from this section, to any judgment given by a court in a Liability Convention country to enforce a claim in respect of a liability incurred under any provision corresponding to section 153; and in its application to such a judgment that Part shall have effect with the omission of paragraphs (2) and (3) of Article 6 of that Law.]
Government ships
167.-(1) Nothing in the preceding provisions of this Chapter applies in relation to any warship or any ship for the time being used by the government of any State for other than commercial purposes.
(2) In relation to a ship owned by a State and for the time being used for commercial purposes it shall be a sufficient compliance with section 163(2) if there is in force a certificate issued by the government of that State and showing that the ship is owned by that State and that any liability for pollution damage as defined in Article 1 of the Liability Convention will be met up to the limit prescribed by Article V of the Convention.
(3) Every Liability Convention State shall, for the purposes of any proceedings brought in a court in [Jersey] to enforce a claim in respect of a liability incurred under section 153, be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which such proceedings are to be commenced and carried on; but nothing in this subsection shall authorise the issue of execution * * * against the property of any State.
Limitation of liability under section 154
168. For the purposes of [section 17 of the Merchant Shipping Act 1979 as extended to Jersey by the Merchant Shipping Act 1979 (Jersey) Order 1980] any liability incurred under section 154 shall be deemed to be a liability to damages in respect of such damage to property as is mentioned in paragraph 1(a) of Article 2 of the [Convention on Limitation of Liability for Maritime Claims 1976].
Saving for recourse actions
169. Nothing in this Chapter shall prejudice any claim, or the enforcement of any claim, a person incurring any liability under this Chapter may have against another person in respect of that liability.
Interpretation
170.-(1) In this Chapter –
“the court” means the [Inferior Number of the Royal Court];
“damage” includes loss;
“oil” means persistent hydrocarbon mineral oil;
“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, except that, in relation to a ship owned by a State which is operated by a person registered as the ship’s operator, it means the person registered as its operator;
“relevant threat of contamination” shall be construed in accordance with section 153(2) or 154(2); and
“ship” (subject to section 154(5)) means any sea-going vessel or sea-borne craft of any type whatsoever.
(2) In relation to any damage or cost resulting from the discharge or escape of any oil from a ship, or from a relevant threat of contamination, references in this Chapter to the owner of the ship are references to the owner at the time of the occurrence or first of the occurrences resulting in the discharge or escape or (as the case may be) in the threat of contamination.
(3) * * * * *
[(4) References in this Chapter to the territory of any country include the territorial sea of that country and, in the case of any Liability Convention country other than Jersey, the exclusive economic zone of that country established in accordance with international law, or, if such a zone has not been established, such area adjacent to the territorial sea of that country and extending not more than 200 nautical miles from the baselines from which the breadth of that sea is measured as may have been determined by that State in question in accordance with international law.]
171. * * * * * * *
CHAPTER IV
INTERNATIONAL OIL POLLUTION COMPENSATION FUND
Preliminary
Meaning of the “Liability Convention”, “the Fund Convention” and related expressions
172.-(1) In this Chapter –
(a) “the Liability Convention” has the same meaning as in Chapter III of this Part;
(b) “the Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992;
(c) “the Fund” means the International Fund established by the Fund Convention; and
(d) “Fund Convention country” means a country in respect of which the Fund Convention is in force[, and includes the United Kingdom and any relevant British possession to which the Fund Convention has been extended].
(2) If Her Majesty by Order in Council declares that any State specified in the Order is a party to the Fund Convention in respect of any country so specified, the Order shall, while in force, be conclusive evidence that that State is a party to that Convention in respect of that country.
Contributions to Fund
Contributions by importers of oil and others
173.-(1) Contributions shall be payable to the Fund in respect of oil carried by sea to ports or terminal installations in [Jersey] otherwise than on a voyage only within [waters landward of the baselines for measuring the breadth of the territorial sea of Jersey.]
(2) Subsection (1) above applies whether or not the oil is being imported, and applies even if contributions are payable in respect of carriage of the same oil on a previous voyage.
(3) Contributions shall also be payable to the Fund in respect of oil when first received in any installation in [Jersey] after having been carried by sea and discharged in a port or terminal installation in a country which is not a Fund Convention country.
(4) The person liable to pay contributions is –
(a) in the case of oil which is being imported into [Jersey] the importer; and
(b) otherwise, the person by whom the oil is received.
(5) A person shall not be liable to make contributions in respect of the oil imported or received by him in any year if the oil so imported or received in the year does not exceed 150,000 tonnes.
(6) For the purpose of subsection (5) above –
(a) all the members of a group of companies shall be treated as a single person; and
(b) any two or more companies which have been amalgamated into a single company shall be treated as the same person as that single company.
(7) The contributions payable by a person for any year shall –
(a) be of such amount as may be determined by the Director of the Fund under Article 12 of the Fund Convention and notified to that person by the Fund;
(b) be payable in such instalments, becoming due at such times, as may be so notified by him;
and if any amount due from him remains unpaid after the date on which it became due, it shall from then on bear interest, at a rate determined from time to time by the Assembly of the Fund, until it is paid.
(8) The [States] may by regulations impose on persons who are or may be liable to pay contributions under this section obligations to give security for payment to the [States], or the Fund.
(9) Regulations under subsection (8) above –
(a) may contain such supplemental or incidental provisions as appear to the [States] expedient; and
(b) may impose penalties for contravention of the regulations punishable [on conviction by a fine not exceeding level 4] on the standard scale, or such lower limit as may be specified in the regulations.
(10) In this section and in section 174, unless the context otherwise requires –
“company” means a body incorporated under the law of [Jersey], or of any other country;
[“group” in relation to companies, means a holding company and its subsidiaries as defined by Article 2 of the Companies (Jersey) Law 1991,[8] subject, in the case of a company incorporated outside Jersey, to any necessary modifications of those definitions;]
“importer” means the person by whom or on whose behalf the oil in question is entered for customs or excise purposes on importation, and “import” shall be construed accordingly;
“oil” means crude oil and fuel oil; and
(a) “crude oil” means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation, and includes –
(i) crude oils from which distillate fractions have been removed, and
(ii) crude oils to which distillate fractions have been added;
(b) “fuel oil” means heavy distillates or residues from crude oil or blends of such materials intended for use as a fuel for the production of heat or power of a quality equivalent to the “American Society for Testing and Materials’ Specification for Number Four Fuel Oil (Designation D396–69)”, or heavier;
“terminal installation” means any site for the storage of oil in bulk which is capable of receiving oil from waterborne transportation, including any facility situated offshore and linked to any such site.
Power to obtain information
174.-(1) For the purpose of transmitting to the Fund the names and addresses of the persons who under section 173 are liable to make contributions to the Fund for any year, and the quantity of oil in respect of which they are so liable, the [Committee] may by notice require any person engaged in producing, treating, distributing or transporting oil to furnish such information as may be specified in the notice.
(2) A notice under this section may require a company to give such information as may be required to ascertain whether its liability is affected by section 173(6).
(3) A notice under this section may specify the way in which, and the time within which, it is to be complied with.
(4) In proceedings by the Fund against any person to recover any amount due under section 173, particulars contained in any list transmitted by the [Committee] to the Fund shall, so far as those particulars are based on information obtained under this section, be admissible as evidence of the facts stated in the list; and so far as particulars which are so admissible are based on information given by the person against whom the proceedings are brought, those particulars shall be presumed to be accurate until the contrary is proved.
(5) If a person discloses any information which has been furnished to or obtained by him under this section, or in connection with the execution of this section, then, unless the disclosure is made –
(a) with the consent of the person from whom the information was obtained; or
(b) in connection with the execution of this section; or
(c) for the purposes of any legal proceedings arising out of this section or of any report of such proceedings,
he shall be liable [on conviction to a fine not exceeding level 4] on the standard scale.
(6) A person who –
(a) refuses or wilfully neglects to comply with a notice under this section; or
(b) in furnishing any information in compliance with a notice under this section makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular,
shall be [guilty of an offence and liable to a fine or to imprisonment for a term not exceeding twelve months, or to both].
Compensation for persons suffering pollution damage
Liability of the Fund
175.-(1) The Fund shall be liable for pollution damage in the territory of [Jersey] if the person suffering the damage has been unable to obtain full compensation under section 153 –
(a) because the discharge or escape, or the relevant threat of contamination, by reason of which the damage was caused –
(i) resulted from an exceptional, inevitable and irresistible phenomenon, or
(ii) was due wholly to anything done or omitted to be done by another person (not being a servant or agent of the owner) with intent to do damage, or
(iii) was due wholly to the negligence or wrongful act of a government or other authority in exercising its function of maintaining lights or other navigational aids for the maintenance of which it was responsible,
(and because liability is accordingly wholly displaced by section 155); or
(b) because the owner or guarantor liable for the damage cannot meet his obligations in full; or
(c) because the damage exceeds the liability under section 153 as limited by section 157.
(2) Subsection (1) above shall apply with the substitution for the words [“Jersey”] of the words “a Fund Convention country” where –
(a) * * * * *
(b) the incident has caused pollution damage in the territory of [Jersey] and of another Fund Convention country, and proceedings under the Liability Convention for compensation for the pollution damage have been brought in a country which is not a Fund Convention country or in [Jersey].
(3) Where the incident has caused pollution damage in the territory of [Jersey] and of another country in respect of which the Liability Convention is in force, references in this section to the provisions of Chapter III of this Part shall include references to the corresponding provisions of the law of any country giving effect to the Liability Convention.
(4) * * * * *
(5) For the purposes of this section an owner or guarantor is to be treated as incapable of meeting his obligations if the obligations have not been met after all reasonable steps to pursue the legal remedies available have been taken.
(6) Expenses reasonably incurred, and sacrifices reasonably made, by the owner voluntarily to prevent or minimise pollution damage shall be treated as pollution damage for the purposes of this section, and accordingly he shall be in the same position with respect to claims against the Fund under this section as if he had a claim in respect of liability under section 153.
(7) The Fund shall incur no obligation under this section if –
(a) it proves that the pollution damage –
(i) resulted from an act of war, hostilities, civil war or insurrection, or
(ii) was caused by oil which has escaped or been discharged from a warship or other ship owned or operated by a State and used, at the time of the occurrence, only on Government non-commercial service; or
(b) the claimant cannot prove that the damage resulted from an occurrence involving a ship identified by him, or involving two or more ships one of which is identified by him.
(8) If the Fund proves that the pollution damage resulted wholly or partly –
(a) from anything done or omitted to be done with intent to cause damage by the person who suffered the damage; or
(b) from the negligence of that person,
the Fund may (subject to subsection (10) below) be exonerated wholly or partly from its obligations to pay compensation to that person.
(9) Where the liability under section 153 in respect of the pollution damage is limited to any extent by subsection (8) of that section, the Fund shall (subject to subsection (10) below) be exonerated to the same extent.
(10) Subsections (8) and (9) above shall not apply where the pollution damage consists of the costs of preventive measures or any damage caused by such measures.
Limitation of Fund’s liability under section 175
176.-(1) The Fund’s liability under section 175 shall be subject to the limits imposed by paragraphs 4 and 5 of Article 4 of the Fund Convention (which impose an overall limit on the liabilities of the Fund and the text of which is set out in Part I of Schedule 5), and in those provisions references to the Liability Convention are references to the Liability Convention within the meaning of this Chapter.
(2) A certificate given by the Director of the Fund stating that sub-paragraph (c) of paragraph 4 of Article 4 of the Fund Convention is applicable to any claim under section 175 shall be conclusive evidence for the purposes of this Chapter that it is so applicable.
(3) For the purpose of giving effect to paragraphs 4 and 5 of Article 4 of the Fund Convention a court giving judgment against the Fund in proceedings under section 175 shall notify the Fund, and –
(a) no steps shall be taken to enforce the judgment unless and until the court gives leave to enforce it;
(b) that leave shall not be given unless and until the Fund notifies the court either that the amount of the claim is not to be reduced under those paragraphs, or that it is to be reduced to a specified amount; and
(c) in the latter case the judgment shall be enforceable only for the reduced amount.
(4) Any steps taken to obtain payment of an amount or a reduced amount in pursuance of such a judgment as is mentioned in subsection (3) above shall be steps to obtain payment in sterling; and –
(a) for the purpose of converting such an amount from special drawing rights into sterling one special drawing right shall be treated as equal to such a sum in sterling as the International Monetary Fund have fixed as being the equivalent of one special drawing right for –
(i) the relevant day, namely the day on which the Assembly of the Fund decide the date for the first payment of compensation in respect of the incident, or
(ii) if no sum has been so fixed for the relevant day, the last day before that day for which a sum has been so fixed; and
(b) a certificate given by or on behalf of the Treasury [of the United Kingdom] stating –
(i) that a particular sum in sterling has been so fixed for the relevant day, or
(ii) that no sum has been so fixed for the relevant day and that a particular sum in sterling has been so fixed for a day which is the last day for which a sum has been so fixed before the relevant day,
shall be conclusive evidence of those matters for the purposes of this Chapter.
(5) The Secretary of State may by order make such amendments of this section and Part I of Schedule 5 as appear to him to be appropriate for the purpose of giving effect to the entry into force of any amendment of the provisions set out in that Schedule.
(6) Any document purporting to be such a certificate as is mentioned in subsection (2) or (4)(b) above shall, in any legal proceedings, be received in evidence and, unless the contrary is proved, be deemed to be such a certificate.
Supplemental
Jurisdiction and effect of judgments
177.-(1) * * * * *
(2) Where in accordance with rules of court made for the purposes of this subsection the Fund has been given notice of proceedings brought against an owner or guarantor in respect of liability under section 153, any judgment given in the proceedings shall, after it has become final and enforceable, become binding upon the Fund in the sense that the facts and evidence in the judgment may not be disputed by the Fund even if the Fund has not intervened in the proceedings.
(3) Where a person incurs a liability under the law of a Fund Convention country corresponding to Chapter III of this Part for damage which is partly in the territory of [Jersey], subsection (2) above shall, for the purpose of proceedings under this Chapter, apply with any necessary modifications to a judgment in proceedings under that law of the said country.
[(4) Subject to subsection (5) below, Part II of the Judgments (Reciprocal Enforcement) (Jersey) Law 1960 shall apply, whether or not it would so apply apart from this subsection, to any judgment given by a court in a Fund Convention country to enforce a claim in respect of liability incurred under any provision corresponding to section 175; and in its application to such a judgment the said Part shall have effect with the omission of paragraphs (2) and (3) of Article 6 of that Law.]
(5) No steps shall be taken to enforce such a judgment unless and until the court in which it is registered under [Part II of the Law of 1960] gives leave to enforce it; and –
(a) that leave shall not be given unless and until the Fund notifies the court either that the amount of the claim is not to be reduced under paragraph 4 of Article 4 of the Fund Convention (as set out in Part I of Schedule 5 to this Act) or that it is to be reduced to a specified amount; and
(b) in the latter case, the judgment shall be enforceable only for the reduced amount.
[(6) Rules may be made in the manner prescribed by the Royal Court (Jersey) Law 1948 for the purposes of subsection (2) above.]
Extinguishment of claims
178.-(1) No action to enforce a claim against the Fund under this Chapter shall be entertained by a court in [Jersey] unless –
(a) the action is commenced; or
(b) a third party notice of an action to enforce a claim against the owner or his guarantor in respect of the same damage is given to the Fund,
not later than three years after the claim against the Fund arose.
In this subsection “third party notice” means a notice of the kind described in section 177(2) and (3).
(2) No action to enforce a claim against the Fund under this Chapter shall be entertained by a court in [Jersey] unless the action is commenced not later than six years after the occurrence, or first of the occurrences, resulting in the discharge or escape, or (as the case may be) in the relevant threat of contamination, by reason of which the claim against the Fund arose.
Subrogation
179.-(1) In respect of any sum paid by the Fund as compensation for pollution damage the Fund shall acquire by subrogation any rights in respect of the damage which the recipient has (or but for the payment would have) against any other person.
(2) In respect of any sum paid by a public authority in [Jersey] as compensation for pollution damage, that authority shall acquire by subrogation any rights which the recipient has against the Fund under this Chapter.
Supplementary provisions as to proceedings involving the Fund
180.-(1) Any proceedings by or against the Fund may either be instituted by or against the Fund in its own name or be instituted by or against the Director of the Fund as the Fund’s representative.
(2) Evidence of any instrument issued by any organ of the Fund or of any document in the custody of the Fund, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of the Fund; and any document purporting to be such a copy shall, in any such proceedings, be received in evidence without proof of the official position or handwriting of the person signing the certificate.
Interpretation
181.-(1) In this Chapter, unless the context otherwise requires –
“damage” includes loss;
“discharge or escape”, in relation to pollution damage, means the discharge or escape of oil from the ship;
“guarantor” means any person providing insurance or other financial security to cover the owner’s liability of the kind described in section 163;
“incident” means any occurrence, or series of occurrences having the same origin, resulting in a discharge or escape of oil from a ship or in a relevant threat of contamination;
“oil”, except in sections 173 and 174, means persistent hydrocarbon mineral oil;
“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, except that, in relation to a ship owned by a State which is operated by a person registered as the ship’s operator, it means the person registered as its operator;
“pollution damage” means –
(a) damage caused outside a ship by contamination resulting from a discharge or escape of oil from the ship;
(b) the cost of preventive measures; and
(c) further damage caused by preventive measures,
but does not include any damage attributable to any impairment of the environment except to the extent that any such damage consists of –
(i) any loss of profits; or
(ii) the cost of any reasonable measures of reinstatement actually taken or to be taken;
“preventive measures” means any reasonable measures taken by any person to prevent or minimise pollution damage, being measures taken –
(a) after an incident has occurred; or
(b) in the case of an incident consisting of a series of occurrences, after the first of those occurrences;
“relevant threat of contamination” means a grave and imminent threat of damage being caused outside a ship by contamination resulting from a discharge or escape of oil from the ship; and
“ship” means any ship (within the meaning of Chapter III of this Part) to which section 153 applies.
(2) For the purposes of this Chapter –
(a) references to a discharge or escape of oil from a ship are references to such a discharge or escape wherever it may occur, and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank; and
(b) where more than one discharge or escape results from the same occurrence or from a series of occurrences having the same origin, they shall be treated as one.
(3) References in this Chapter to the territory of any country shall be construed in accordance with section 170(4) reading the reference to a Liability Convention country as a reference to a Fund Convention country.
182. * * * * * * *
PART VII
LIABILITY OF SHIPOWNERS AND OTHERS
183–192. * * * * * *
PART VIII
LIGHTHOUSES
193–223. * * * * * *
PART IX
SALVAGE AND WRECK
224–255. * * * * * *
PART X
ENFORCEMENT OFFICERS AND POWERS
256–266. * * * * * *
PART XI
ACCIDENT INVESTIGATIONS AND INQUIRIES
267–273. * * * * * *
PART XII
LEGAL PROCEEDINGS
274–276. * * * * * *
Offences by officers of bodies corporate
277.-(1) Where a body corporate is guilty of an offence under this Act or any instrument made under it, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in such a capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
[Accessories and abettors
277A. Any person who knowingly or wilfully aids, abets, counsels, causes, procures or commands the commission of an offence under this Act shall be liable to be dealt with, tried and punished as a principal offender.]
278. * * * * * * *
Jurisdiction
Jurisdiction in relation to offences
279.-(1) For the purpose of conferring jurisdiction, any offence under this Act shall be deemed to have been committed in any place in [Jersey] where the offender may for the time being be.
(2) For the same purpose, any matter of complaint under this Act shall be deemed to have arisen in any place in [Jersey] where the person complained against may for the time being be.
(3) The jurisdiction under subsections (1) and (2) above shall be in addition to and not in derogation of any jurisdiction or power of a court under any other enactment.
280. * * * * * * *
Jurisdiction in case of offences on board ship
281. Where any person is charged with having committed any offence under this Act then –
(a) if he is a British citizen and is charged with having committed it –
(i) on board [a ship registered in Jersey] on the high seas,
(ii) in any foreign port or harbour, or
(iii) * * * * *
(b) if he is not a British citizen and is charged with having committed it on board [a ship registered in Jersey] on the high seas;
and he is found [in Jersey, any court which would have had jurisdiction in relation to the offence had it been committed on board a ship registered in Jersey within the limits of its ordinary jurisdiction to try the offence shall have jurisdiction to try the offence if it has been so committed].
282. * * * * * * *
283. * * * * * * *
Detention of ship and distress on ship
Enforcing detention of ship
284.-(1) Where under this Act a ship is to be or may be detained any of the following officers may detain the ship –
(a) any commissioned naval or military officer;
[(b) the Harbourmaster and any officer of the Committee;
(c) the Agent of the Impôts or any officer of the Impôts;
(cc) any fisheries officer;]
(d) any British consular officer.
(2) If a ship which has been detained or as respects which notice of detention or an order for detention has been served on the master proceeds to sea before it is released by competent authority the master of the ship shall be [guilty of an offence and liable to a fine.]
(3) The owner of a ship, and any person who sends to sea a ship, as respects which an offence is committed under subsection (2) above shall, if party or privy to the offence, also be guilty of an offence under that subsection and liable accordingly.
(4) Where a ship proceeding to sea in contravention of subsection (2) above takes to sea any of the following who is on board the ship in the execution of his duty, namely –
(a) any officer authorised by subsection (1) above to detain the ship; or
(b) * * * * *
the owner and master of the ship shall each –
(i) be liable to pay all expenses of and incidental to the officer * * * being so taken to sea; and
(ii) be guilty of an offence.
(5) A person guilty of an offence under subsection (4) above shall be [guilty of an offence and liable to a fine].
(6) Where under this Act a ship is to be detained [the Agent of the Impôts or any officer of the Impôts] shall, and where under this Act a ship may be detained [the Agent of the Impôts or any officer of the Impôts] may, refuse to clear the ship outwards or grant a transire to the ship.
(7) * * * * *
(8) * * * * *
285–291. * * * * * *
PART XIII
SUPPLEMENTAL
Administration
292–301. * * * * * *
Financial provisions
302–307. * * * * * *
Application of Act to government ships
308.-(1) Subject to any other provision of it, this Act shall not apply to ships belonging to Her Majesty.
(2) * * * * *
(3) * * * * *
(4) * * * * *
309–312. * * * * * *
Final provisions
Definitions
313.-(1) In this Act, unless the context otherwise requires –
“British connection” has the meaning given in section 9(9);
“British citizen”, “British Dependent Territories citizen”, “British Overseas citizen” and “Commonwealth citizen” have the same meaning as in the British Nationality Act 1981;
* * *
“commissioned military officer” means a commissioned officer in Her Majesty’s land forces on full pay;
“commissioned naval officer” means a commissioned officer of Her Majesty’s Navy on full pay;
[“the Committee” means the Harbours and Airport Committee of the States of Jersey;]
* * *
“consular officer”, in relation to a foreign country, means the officer recognised by Her Majesty as a consular officer of that foreign country;
“contravention” includes failure to comply (and “failure” includes refusal);
[“fisheries officer” has the same meaning as in Article 14 of the Sea Fisheries (Jersey) Law 1994;]
* * *
* * *
* * *
* * *
“harbour” includes estuaries, navigable rivers, piers, jetties and other works in or at which ships can obtain shelter or ship and unship goods or passengers;
[“Harbourmaster” has the same meaning as in Article 2 of the Harbours (Administration) (Jersey) Law 1961;]
* * *
“master” includes every person (except a pilot) having command or charge of a ship and, in relation to a fishing vessel, means the skipper;
“port” includes place;
* * *
[“registered” means, in relation to a ship registered in Jersey, registered under the provisions of the Merchant Shipping Act 1894;]
* * *
* * *
* * *
“relevant British possession” means –
(a) the Isle of Man;
(b) any of the Channel Islands; and
(c) any colony;
* * *
* * *
“ship” includes every description of vessel used in navigation;
[“standard scale” means the standard scale of fines for the time being set out in the Schedule to the Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993;]
* * *
* * *
* * *
* * *
* * *
(2) * * * * *
(2A) * * * * *
(3) * * * * *
313A. * * * * * * *
Repeals, consequential amendments and transitional provisions
314. * * * * * * *
Extent and application
315. * * * * * * *
Short title and commencement
316.-(1) This Act may be cited as the Merchant Shipping Act 1995.
(2) * * * * *
SCHEDULE 1
* * * * * * *
SCHEDULE 2
* * * * * * *
SCHEDULE 3
* * * * * * *
SCHEDULE 4
* * * * * * *
SCHEDULE 5
(Section 176)
OVERALL LIMIT ON LIABILITY OF FUND
PART I
PERMANENT PROVISION
Article 4 paragraphs 4 and 5
4.(a) Except as otherwise provided in sub-paragraphs (b) and (c) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the Liability Convention for pollution damage within the scope of application of this Convention as defined in Article 3 shall not exceed 135 million units of account.
(b) Except as otherwise provided in sub-paragraph (c), the aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 135 million units of account.
(c) The maximum amount of compensation referred to in sub-paragraphs (a) and [(b)] shall be 200 million units of account with respect to any incident occurring during any period when there are three Parties to this Convention in respect of which the combined relevant quantity of contributing oil received by persons in the territories of such Parties, during the preceding calendar year, equalled or exceeded 600 million tons.
(d) Interest accrued on a fund constituted in accordance with Article V, paragraph 3, of the Liability Convention, if any, shall not be taken into account for the computation of the maximum compensation payable by the Fund under this Article.
(e) The amounts mentioned in this Article 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 decision of the Assembly of the Fund as to the first date of payment of compensation.
5. Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, 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.
PART II
* * * * * * *
SCHEDULE 6
* * * * * * *
SCHEDULE 7
* * * * * * *
SCHEDULE 8
* * * * * * *
SCHEDULE 9
* * * * * * *
SCHEDULE 10
* * * * * * *
SCHEDULE 11
* * * * * * *
SCHEDULE 12
* * * * * * *
SCHEDULE 13
* * * * * * *
SCHEDULE 14
* * * * * * *
THE MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION DAMAGE) (TRANSITIONAL PROVISIONS) ORDER 1996
____________
(Registered on the 28th day of November 1997)
____________
At the Court at Windsor Castle
____________
24th day of April 1996
____________
PRESENT
The Queen’s Most Excellent Majesty in Council
____________
HER MAJESTY, in exercise of the powers conferred by sections 171(2) and 182(2) of the Merchant Shipping Act 1995, and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows –
1. This Order may be cited as the Merchant Shipping (Liability and Compensation for Oil Pollution Damage) (Transitional Provisions) Order 1996, * * *.
2. In this Order, unless the context otherwise requires –
“the Act” means the Merchant Shipping Act 1995 [as extended to Jersey by the 1997 Order];
“the 1969 Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage signed in Brussels in 1969, as amended by the Protocol signed in London in 1976;
“the 1992 Liability Convention” means the 1969 Liability Convention as amended by the 1992 Liability Protocol;
“the 1992 Liability Protocol” means the Protocol of 1992 to amend the 1969 Liability Convention signed in London in 1992;
“the 1971 Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage opened for signature in Brussels on 18th December 1971, as amended by the Protocol signed in London in 1976;
“the 1992 Fund Convention” means the 1971 Fund Convention as amended by the 1992 Fund Protocol; * * *
“the 1992 Fund Protocol” means the Protocol of 1992 to amend the 1971 Fund Convention signed in London in 1992.
[“the 1975 Order” means the Merchant Shipping Act 1974 (Jersey) Order 1975;
“the 1981 Order” means the Merchant Shipping (Oil Pollution) Act 1971 (Jersey) Order 1981;
“the 1997 Order” means the Merchant Shipping (Oil Pollution) (Jersey) Order 1997;]
3.-(1) Notwithstanding the coming into force of [the 1997 Order] (and the consequent ceasing to have effect of [the 1975 and 1981 Orders]), the provisions mentioned in paragraph (2) below and set out in Schedule 1 to this Order (being transitional provisions) shall have the force of law in [Jersey], subject to the modifications in Schedule 2 to this Order, and for this purpose the provisions of [the 1975 and 1981 Orders] shall continue to have effect.
(2) The provisions are –
(i) Article XII bis of the 1969 Liability Convention, inserted by Article 9 of the 1992 Liability Protocol;
(ii) Article 36 bis of the 1971 Fund Convention, inserted by Article 26 of the 1992 Fund Protocol.
4. During the period while the United Kingdom [in respect of Jersey] remains a party to the 1969 Liability Convention, references in sections 163 and 164 of the Act to the “Liability Convention” shall, in respect of ships registered in a State Party to the 1969 Liability Convention but not the 1992 Liability Convention, be references to the 1969 Liability Convention.
5. In section 173(7) of the Act the reference to “Article 12 of the Fund Convention” shall have effect as a reference to Article 12 subject to Article 36 ter of that Convention.
6. For convenience of reference Article XII bis of the 1992 Liability Convention, and Article 36 bis of the 1992 Fund Convention, as modified by Schedule 2 to this Order, are set out in Schedule 3.
N.H. NICHOLLS
Clerk of the Privy Council.
SCHEDULE 1
(Article 3)
ARTICLE XII BIS OF THE 1992 LIABILITY CONVENTION AND ARTICLE 36 BIS OF THE 1992 FUND CONVENTION
Article XII bis of the 1992 Liability Convention
Transitional Provisions
The following transitional provisions shall apply in the case of a State which at the time of an incident is a Party both to this Convention and to the 1969 Liability Convention:
(a) where an incident has caused pollution damage within the scope of this Convention, liability under this Convention shall be deemed to be discharged if, and to the extent that, it also arises under the 1969 Liability Convention;
(b) where an incident has caused pollution damage within the scope of this Convention, and the State is a Party both to this Convention and to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, liability remaining to be discharged after the application of sub-paragraph (a) of this Article shall arise under this Convention only to the extent that pollution damage remains uncompensated after application of the said 1971 Convention;
(c) in the application of Article III, paragraph 4, of this Convention the expression “this Convention” shall be interpreted as referring to this Convention or the 1969 Liability Convention, as appropriate;
(d) in the application of Article V, paragraph 3, of this Convention the total sum of the fund to be constituted shall be reduced by the amount by which liability has been deemed to be discharged in accordance with sub-paragraph (a) of this Article.
Article 36 bis of the 1992 Fund Convention
The following transitional provisions shall apply in the period, hereinafter referred to as the transitional period, commencing with the date of entry into force of this Convention and ending with the date on which the denunciations provided for in Article 31 of the 1992 Protocol to amend the 1971 Fund Convention take effect:
(a) In this application of paragraph 1(a) of Article 2 of this Convention, the reference to the 1992 Liability Convention shall include reference to the International Convention on Civil Liability for Oil Pollution Damage, 1969, either in its original version or as amended by the Protocol thereto of 1976 (referred to in this Article as “the 1969 Liability Convention”), and also the 1971 Fund Convention.
(b) Where an incident has caused pollution damage within the scope of this Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1969 Liability Convention, the 1971 Fund Convention and the 1992 Liability Convention, provided that, in respect of pollution damage within the scope of this Convention in respect of a Party to this Convention but not a Party to the 1971 Fund Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person would have been unable to obtain full and adequate compensation had that State been Party to each of the above-mentioned Conventions.
(c) In the application of Article 4 of this Convention, the amount to be taken into account in determining the aggregate amount of compensation payable by the Fund shall also include the amount of compensation actually paid under the 1969 Liability Convention, if any, and the amount of compensation actually paid or deemed to have been paid under the 1971 Fund Convention.
(d) Paragraph 1 of Article 9 of this Convention shall also apply to the rights enjoyed under the 1969 Liability Convention.
SCHEDULE 2
(Article 3)
PART A
The following are the modifications to Article XII bis of the 1992 Liability Convention:
[1. References to a State being a Party to a Convention shall be construed as references to the United Kingdom being Party to such a Convention in respect of Jersey.]
2. In the chapeau, the reference to “this Convention” shall be a reference to the 1992 Liability Convention.
3. In sub-paragraph (a) of Article XII bis references to “this Convention” shall be references to sections 152 to 170 of the Act, and the reference to “the 1969 Liability Convention” shall be [a reference to the 1981 Order].
4. In sub-paragraph (b) of Article XII bis the first and third references to “this Convention” shall be references to sections 152 to 170 of the Act, and the second to the 1992 Liability Convention; and the reference to “the said 1971 Convention” shall be a reference to [the 1975 Order].
5. For sub-paragraph (c) of Article XII bis there shall be substituted “subsection (1)(i) of section 156 of the Act refers to liability under section 153 of the Act or under [section 1 of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order], as appropriate, and subsection (1)(ii) of section 156 of the Act applies to the persons referred to in section 156(2) of the Act or [section 3(b) of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order], as appropriate”.
6. In sub-paragraph (d) of Article XII bis, the reference to “Article V, paragraph 3, of this Convention” shall be a reference to section 158 of the Act.
PART B
The following are the modifications to Article 36 bis of the 1992 Fund Convention:
1. The “transitional period” means the period from the date of entry into force of [the 1997 Order to the date on which the Merchant Shipping (Liability and Compensation for Oil Pollution Damage) (Transitional Provisions) Order 1996 ceases to have effect in the United Kingdom].
2. The Fund shall have the same meaning as in section 172 of the Act.
3. Except for the second reference in sub-paragraph (b), references to the “1971 Fund Convention” shall be references to [the 1975 Order].
4. Except for the third reference in sub-paragraph (b) references to “this Convention” shall be references to sections 172 to 181 of the Act.
5. References to “the 1969 Liability Convention” shall be references to [the 1981 Order].
6. References to “the 1992 Liability Convention” shall be references to sections 152 to 170 of the Act.
7. Sub-paragraph (a) of Article 36 bis shall be omitted.
8. In sub-paragraph (b) of Article 36 bis for “the above-mentioned Conventions” there shall be substituted “the 1969 Liability Convention, the 1992 Liability Convention and the 1971 Fund Convention”.
9. In sub-paragraph (c) of Article 36 bis, the reference to “Article 4 of this Convention” shall be a reference to Part 1 of Schedule 5 to the Act.
10. In sub-paragraph (d) of Article 36 bis, the reference to “paragraph 1 of Article 9 of this Convention” shall be a reference to section 179(1) of the Act.
[SCHEDULE 3
(Article 5)
THE TEXT OF ARTICLE XII BIS OF THE 1992 LIABILITY CONVENTION AND ARTICLE 36 BIS OF THE 1992 FUND CONVENTION, AS MODIFIED BY SCHEDULE 2 TO THIS ORDER
Article XII bis
Transitional Provisions
The following transitional provisions shall apply when at the time of an incident the United Kingdom is Party in respect of Jersey both to the 1992 Liability Convention and to the 1969 Liability Convention:
(a) where an incident has caused pollution damage within the scope of sections 152 to 170 of the Act liability under sections 152 to 170 of the Act shall be deemed to be discharged if, and to the extent that, it also arises under the 1981 Order;
(b) where an incident has caused pollution damage within the scope of sections 152 to 170 of the Act and the United Kingdom in respect of Jersey is Party both to the 1992 Liability Convention and to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, liability remaining to be discharged after the application of sub-paragraph (a) of this Article shall arise under sections 152 to 170 of the Act only to the extent that pollution damage remains uncompensated after application of the 1975 Order;
(c) subsection (1)(i) of section 156 of the Act refers to liability under section 153 of the Act or under section 1 of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order, as appropriate and subsection (1)(ii) of section 156 applies to the persons referred to in section 156(2) of the Act or in section 3(b) of the Merchant Shipping (Oil Pollution) Act 1971 as extended to Jersey by the 1981 Order, as appropriate;
(d) in the application of section 158 of the Act the total sum of the fund to be constituted shall be reduced by the amount by which liability has been deemed to be discharged in accordance with sub-paragraph (a) of this Article.
Article 36 bis
The following transitional provisions shall apply from the date of entry into force of the 1997 Order to the date on which the Merchant Shipping (Liability and Compensation for Oil Pollution Damage) (Transitional Provisions) Order 1996 ceases to have effect in the United Kingdom:
(b) Where an incident has caused pollution damage within the scope of sections 172 to 181 of the Act, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1981 Order, the 1975 Order and sections 152 to 170 of the Act, provided that, in respect of pollution damage within the scope of sections 172 to 181 of the Act in respect of a Party to this Convention but not a Party to the 1971 Fund Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person would have been unable to obtain full and adequate compensation had that State been party to each of the 1969 Liability Convention, the 1992 Liability Convention and the 1971 Fund Convention.
(b) In the application of Part I of Schedule 5 to the Act the amount to be taken into account in determining the aggregate amount of compensation payable by the Fund shall also include the amount of compensation actually paid under the 1981 Order, if any, and the amount of compensation actually paid or deemed to have been paid under the 1975 Order.
(c) Section 179(1) of the Act shall also apply to the rights enjoyed under the 1981 Order.]
[1]
Volume 1975–1978, page 125.
[2]
Volume 1975–1978, page 283.
[3]
Deletions, insertions and words in angle brackets indicate amendments of the Merchant Shipping Act 1995 (“the 1995 Act”) made by the Merchant Shipping and Maritime Security Act 1997 (“the 1997 Act”) and those in square brackets indicate adaptations and modifications of the 1995 Act (as amended by the 1997 Act) made by the Merchant Shipping (Oil Pollution) (Jersey) Order 1997.
[4]
Tome VIII, page 810.
[5]
Volume 1979–1981, page 233.
[6]
Tome VII, page 479.
[7]
Tome VIII, page 851.
[8]
Volume 1990–1991, page 890.
