INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE (RATIFICATION AND ENFORCEMENT)
ACT,2006
EXPLANATORY MEMORANDUM
This Act provides for effect (0 be given in (he Federal Republic or Nigeria to the International Convention on Civil Liability fur Oil Pollution Damage 1969 as amended.
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INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE (RATIFICATION AND ENFORCEMENT)
ACT, 2006
ARRANGEMENT OF SECTIONS
Section:
1. Enforcement of the International Convention on Civil Liability for Oil Pollution Damage
2. Short Title
Schedule
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INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE (RATIFICATION AND ENFORCEMENT) ACT,
2006 A Bill For
AN ACT TO ENABLE EFFECT TO BE GIVEN IN THE FEDERAL REPUBLIC OF NIGERIA TO THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE 1969 AS AMENDED;
AND FOR RELATED MATTERS
Commencement
WHEREAS a Convention entitled "the International Convention on Civil Liability for Oil Pollution Damage 1969" as thereafter amended in 1976 and 1992 respectively has been duly adopted by divers Countries and the Federal Republic of Nigeria is desirous of adhering to the said Convention and has deposited the necessary Instrument of Ratification;
AND WHEREAS it is necessary and expedient to make legislative provisions for tile enforcement in the Federal Republic of Nigeria of the provisions of the said Convention by way of an Act of the National Assembly.
NOW THEREFORE, IT IS: ENACTED by the National Assembly of the Federal Republic of Nigeria:
1 As from the commencement of this Act, the provisions of the International Convention on Civil Liability for Oil Poilu lion Damage, 1969 set out in the Schedule to this Act, shall subject as thereunder provided have the Force of Law in the Federal Republic of Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.
Enforcement of tile International Convention on Civil liability for Oil Pollution Damage; Schedule
2 This Act may be cited as the International Convention on Civil Liability for Oil Pollution Short Title. Damage (Ratification and Enforcement) Bill, 2006.
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SCHEDULE Section I The States Parties to the present Convention, CONSCIOUSof the dangers of pollution posed by the worldwide maritime carriage of oil in bulk, CONVINCEDof the need to ensure that adequate compensation is available to persons who suffer damage caused by pollution resulting from the escape or discharge of oil from ships, DESlfllNG to adopt uniform international rules and procedures for determining questions of liability and providing adequate compensation in such cases,
HAVEAGREEDas follows:
Article I
For tile purposes of this Convention: 1. "Ship" means any sea-going vessel and seaborne craft of any type whatsoever
constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.
2. "Person" means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.
3. "Owner" means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship However in the case of a ship owned by a State and operated by a company which in that State is registered as the ship's operator, "owner" shall mean such company.
4. "State of the ship's registry" means in relation to registered ships the State of registration of the ship, and in relation to unregistered ships the State whose flag the Ship is flying.
5. "Oil" means any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such a ship.
6. "Pollution damage" means:
(a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;
(b) the costs of preventive measures and further loss or damage caused by preventive measures.
7. "Preventive measures" means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.
8. "Incident" means any occurrence, or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage.
9. "Organization" means tile International Maritime Organization.
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10. "1969 Liability Convention" means the International Convention on Civil Liability for Oil Pollution Damage, 1969. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1969 Liability Convention as amended by that Protocol.
Article II
This Convention shall apply exclusively: (a) to pollution damage caused:
(i) in the territory, including the territorial sea, of a Contracting State, and
(ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from tile baselines from which the breadth of its territorial sea is measured;
(b) to preventive measures, wherever taken, to prevent or minimize such damage.
Articte III
1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where tile incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.
2. No liability for pollution damage shall attach to the owner if he proves that the damage:
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptionafmevitable and irresistible character, or
(b) was wholly caused by an act or omission done with intent to cause damage by a third party, or
(c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the malntenance of lights or other navigational aids in the exercise of that function.
3. If the owner proves that the pollution darnaqe resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damaqe or from the negligence of that person, tile owner may be exonerated wholly or partially from his liability to such person.
4. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:
(a) the servants or agents of the owner or the members of the crew;
(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;
(c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;
(d) any person pertorminq salvage operations with the consent of the owner or on
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the instructions of a competent public authority;
(e) any person taking preventive measures;
(f) all servants or agents of persons mentioned in subparagraphs (c), (d) and (e); unless the damage resulted from their personal act or omission, committed with the intent to cause sucn damage, or recklessly and with knowledge that such damage would probably result.
5 Nothing in this Convention shall prejudice any right of recourse of the owner against third parties.
Article IV
When an incident involving two or more ships occurs and pollution damage results therefrom, the owners of all the ships concerned, unless exonerated under Article III, shall be Jointly and severally liable for all such damage which is not reasonably separable.
Article V
1. The owner of a ship shall be entitled to limit his liability under this Convention in respect of anyone incident to an aggregate amount calculated as follows:
(a) 3 million units of account for a ship not exceeding 5,000 units of tonnage;
(b) for a ship with a tonnage in excess thereof, for each additional unit of tonnage, 420 units of account in addition to the amount mentioned in sub-paragraph (a); provided, however, that this aggregate amount shall not in any event exceed 59.7 million units of account.2
2. The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.
3. For the purpose of availing himself of the benefit of limitation provided for in paragraph 1 of this Article the owner shall constitute a fund for tile total sum representing the limit of his liability with the Court or other competent authority of anyone of the Contracting States in which action is brought under Article IX or, if no action is brought, with any Court or other competent authority in anyone of the Contracting States in which an action can be brought under Article IX. The fund can be constituted either by depositing tile sum or by producing a bank guarantee or other guarantee, acceptable under tile legislation of tile Contracting State where the fund is constituted, and considered to be adequate by the Court or other competent authority.
4. The fund shall be distributed among the claimants in proportion to the amounts of their established claims.
5. If before the fund is distributed the owner or any of his servants or agents or any person providing him insurance or other financial security has as a result of the incident in question, paid compensation for pollution damage, such person shalt. up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.
6. The right of subrogation provided for in paraqraph 5 of this Article may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for pollution damage which he may have paid but only to tile extent that such subrogation is permitted under the applicable national law.
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7. Wilere the owner or any other person establishes that he may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which such person would have enjoyed a right of subrogation under paragraphs 5 or 6 of this Article, had the compensation been paid before tile fund was distributed, the Court or other competent authority of tile State where the fund has been constituted may order that a sufficient SUI11shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund.
8. Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall rank equally with other claims against the fund.
9. (a) The "unit of account" referred to in paraqraph 1 of this Article is the Special Drawing Rigllt as defined by the International Monetary Fund. The amounts mentioned in paragraph 1 shall be converted into national currency on the basis of the value of that currency by reference to tile Special Drawing Right on the date of the constitution of the fund referred to in Palagraph 3. The value of the national currency, in terms of the Special Drawing Right, of a Contracting State which is a member of tile International Monetary Fund shall be calculated in accordance witilthe method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of tile national currency, in terms of the Special Drawing
Right, of a Contracting State which is not a member of tile International Monetary Fund shall be calculated in a manner determined by that State.
(b) Nevertheless, a Contracting State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9(a) may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 9(a) shall be equal to 15 gold francs The guld franc referred to in this paragraph corresponds to sixty-five and a half milligrammes of gold of rnillesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.
(c) The calculation mentioned in the last sentence of paragraph 9(a) and the conversion mentioned in paragraph 9(b) shall be made in such manner as to express in the national currency of tile Contracting State as far as possible tile same real value for the amounts in paragraph 1 as would result from the application of the first three sentences of paragraph 9(a). Contracting Slates shall communicate to the depositary the manner of calculation pursuant to paragraph 9(a), or the result of the conversion in paragraph 9(b) as the case may be, when depositinq an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.
10. For the purpose of this Article the ship's tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.
11. The insurer or other person providing financial secur ity shall be entitled to constitute a fund in accordance with this Article on the same conditions and having the same effect as if it were constituted by the owner. SUClla fund may be constituted even if, under the provisions of paragraph 2, tile owner is not entitled to limit his liability, but its constitution shall in that case not prejudice the rights of any claimant against the owner.
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Article VI
1. Wilere the owner, after an incident, has constituted a fund in accordance with Article V, and is entitled to limit his liability,
(a) no person having a claim for pollution damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim;
(b) the Court or other competent authority of any Contracting State shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for pollution damage arising out of that incident, and shall similarly release any bailor other security furnished to avoid such arrest.
2. The foregoing shall, however, only apply if the claimant has access to the Court administering the fund and the fund is actually available in respect of his claim.
Article VII
1. The owner of a ship registered in a Contracting State and carrying more than 2,000 tons of oil in bulk as cargo shall be required to maintain insurance or other financial security, such as the guarantee of a bank or a certificate delivered by an international compensation fund. in the sums fixed by applying the limits of liability prescribed in Article V, paragraph 1 to cover his liability for pollution damage under this Convention.
2. A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a Contracting State has determined that the requirements of paragraph 1 have been complied with. Wilh respect to a ship registered in a Contracting State such certificate shall be issued or certified by the appropriate authority of the State of the ship's registry; with respect to a ship not registered in a Contracting State it may be issued or certified by the appropriate authority of any Contracting State. This certificate shall be in the form of the annexed model and shall contain the following particulars:
(a) name of ship and port of registration;
(b) name and principal place of business of owner;
(c) type of security;
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