Merchant Shipping (Civil Liability Convention) Act

Link to law: http://www.gov.za/documents/merchant-shipping-civil-liability-convention-act
Published: 2013-12-10

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Merchant Shipping (Civil Liability Convention) Act 25 of 2013
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions.
This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.
Government Gazette
REPUBLIC OF SOUTH AFRICA
Vol. 582 Cape Town 10 December 201 No. 37146
THE PRESIDENCY No. 994 10 December 2013 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
Act No. 25 of 201 : Merchant Shipping (Civil Liability Convention) Act, 201

2 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
ACT To enact the International Maritime Organization Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage of 29 November 1969 into law; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, asfollows:— ARRANGEMENT OF SECTIONS
Sections
1. Definitions
PART 1
INTRODUCTORY PROVISIONS
2. Enactment of 1992 Protocol into law 3. Act binds State 4. Application of Act 5. Publication of list of states to which 1992 Liability Convention applies
PART 2
COMPENSATION
6. Construction of certain provision and references in 1992 Liability Convention 7. Claims for compensation 8. Applications to determine limit of liability
PART 3
INSURANCE CERTIFICATES
9. Interpretation 10. Application 11. Insurance certificates to be carried on certain ships 12. Issue of insurance certificates 13. Extension, cancellation and lapsing of insurance certificates 14. Ships owned by Government of Republic
5
10
15
20
(English text signed by the President) (Assented to 9 December 2013)
4 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
PART 4
MISCELLANEOUS
15. Regulations 16. Jurisdiction 17. Amendment of law 18. Transitional provisions 19. Short title and commencement
SCHEDULE
Definitions
1. In this Act, unless the context indicates otherwise, any meaning ascribed to a word or expression in the 1992 Liability Convention bears the meaning so ascribed, and—
‘‘Authority’’ means the South African Maritime Safety Authority established by section 2(1) of the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998); ‘‘Contracting State’’ means a country or territory specified in a notice published in terms of section 5; ‘‘Minister’’ means the Minister of Transport; ‘‘organ of state’’ has the meaning ascribed to it in section 239 of the Constitution of the Republic of South Africa, 1996; ‘‘prescribed’’ means prescribed by regulation in terms of section 15; ‘‘the 1969 Liability Convention’’ means the International Convention on Civil Liability for Oil Pollution Damage, signed in Brussels on 29 November 1969 and published for general information under General Notice No. 58 of 1978 in Gazette No. 5867 of 27 January 1978; ‘‘the 1992 Liability Convention’’meansArticles I to XII ter, including the model certificate, of the 1969 Liability Convention as amended by the 1992 Protocol and referred to in paragraph 2 of Article 11 of the 1992 Protocol; ‘‘the 1992 Protocol’’ means the International Maritime Organisation Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage of 29 November 1969— (a) approved on 23 October 1997 by the National Assembly and on 15 March
1999 by the National Council of Provinces as is required by section 231(2) of the Constitution of the Republic of South Africa, 1996; and
(b) published for general information under Notice No. 1535 of 2009 in Gazette No. 32723 of 20 November 2009;
‘‘the Republic’’ includes the Prince Edward Islands referred to in section 4; and ‘‘this Act’’ includes the regulations made under section 15.
PART 1
INTRODUCTORY PROVISIONS
Enactment of 1992 Protocol into law
2. (1) Subject to this Act, the 1992 Protocol has the force of law in the Republic. (2) The Minister may by notice in the Gazette publish for general information any
changes made to the 1992 Liability Convention under Article 14 or 15 of the 1992 Protocol if those changes are binding on the Republic in terms of section 231 of the Constitution of the Republic of South Africa, 1996. (3) For the purposes of this Act, the English text of the 1992 Protocol prevails for the
purposes of interpretation.
4
5
10
15
20
25
30
35
40
45
6 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
Act binds State
3. This Act binds the State and every organ of state.
Application of Act
4. This Act also applies to the Prince Edward Islands referred to in section 1 of the Prince Edward Islands Act, 1948 (Act No. 43 of 1948).
Publication of list of states to which 1992 Liability Convention applies
5. The Minister must, by notice in the Gazette, publish a list of states, other than the Republic, to which the 1992 Liability Convention applies.
PART 2
COMPENSATION
Construction of certain provision and references in 1992 Liability Convention
6. (1) Paragraph 1 of Article VII of the 1992 Liability Convention, in so far as it relates to the Republic, must be construed as requiring the owner of a ship registered in the Republic to maintain the insurance or other financial security referred to in that paragraph. (2) For the purposes of paragraph (a)(i) ofArticle II of the 1992 Liability Convention,
and in so far as it relates to the Republic, the reference to the territorial sea must be construed as a reference to the territorial waters of the Republic referred to in section 4 of the Maritime Zones Act, 1994 (Act No. 15 of 1994). (3) For the purposes of paragraph (a)(ii) of Article II of the 1992 Liability
Convention, and in so far as it relates to the Republic, the reference to exclusive economic zone must be construed as a reference to the exclusive economic zone of the Republic within the meaning of section 7 of the Maritime Zones Act, 1994 (Act No. 15 of 1994).
Claims for compensation
7. (1) The High Court exercising its admiralty jurisdiction has jurisdiction, including jurisdiction for all incidental purposes, to hear and determine claims for compensation under the 1992 Liability Convention in respect of incidents—
(a) that have caused pollution damage in a place to which the 1992 Liability Convention applies; or
(b) in relation to which preventative measures have been taken to prevent or minimise pollution damage in a place to which the 1992 Liability Convention applies.
(2) For the purposes of this Act, the area of jurisdiction of a court shall be deemed to include that portion of the exclusive economic zone and the territorial waters of the Republic adjacent to the coastline of its area of jurisdiction.
Applications to determine limit of liability
8. (1) If a claim for compensation under the 1992 Liability Convention is made in the High Court against, or is apprehended by, the owner of a ship, or the insurer or other person providing financial security for the liability of the owner of the ship for pollution damage, the owner, insurer or other person, as the case may be, may apply—
(a) in the case where a claim for compensation under the 1992 Liability Convention has been made in the High Court, to the division of the High Court in which the claim for compensation has been made; or
6
5
10
15
20
25
30
35
40
8 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
(b) in any other case, to any division of the High Court having jurisdiction contemplated in section 7,
to determine whether he or she may limit his or her liability under the 1992 Liability Convention and, if so, the limit of that liability. (2) If the High Court determines that a person’s liability may be limited under the
provisions of the 1992 Liability Convention, the High Court may make any order it thinks fit in respect of the apportionment and distribution, in accordance with those provisions, of a fund for the payment of claims under those provisions.
PART 3
INSURANCE CERTIFICATES
Interpretation
9. In this Part— (a) ‘‘Government ship’’ means a ship, including a warship, owned by a state,
and includes a ship owned by the Government of the Republic; (b) a reference to a contract of insurance, or to other financial security, in respect
of a ship, must be construed as a reference to a contract of insurance, or to other financial security, covering the liability of the owner of the ship under the 1992 Liability Convention for pollution damage caused in a place to which the 1992 Liability Convention applies; and
(c) a reference to the limits of the liability prescribed by paragraph 1 of Article V of the 1992 Liability Convention, in relation to a ship, must be construed as a reference to the amount to which the owner of the ship is entitled, under that paragraph, in its application to the ship as part of the law of the Republic, to limit his or her liability under the 1992 Liability Convention in respect of any one incident.
Application
10. (1) Subject to subsection (2), this Part applies to every ship that is carrying more than 2 000 tonnes of oil in bulk as cargo and, where such ship is unregistered, this Part applies to that ship as if it were registered in the state whose flag the ship is flying.
(2) This Part does not apply to a Government ship, or other ship operated by a state, including a ship operated by the Government of the Republic, that is being used for non-commercial purposes.
Insurance certificates to be carried on certain ships
11. (1) If a ship enters or leaves, or attempts to enter or to leave, a port in the Republic, or arrives at or leaves, or attempts to arrive at or to leave, a terminal in the territorial waters of the Republic, without having on board the ship the relevant insurance certificate that is in force in respect of that ship, the master and the owner of the ship are both guilty of an offence and liable on conviction to a fine not exceeding R250 000. (2) If a ship that is registered in the Republic enters or leaves, or attempts to enter or
to leave, a port in a state other than the Republic, or arrives at or leaves, or attempts to arrive at or to leave, a terminal in the territorial sea of such a state, without having on board the ship the relevant insurance certificate that is in force in respect of that ship, the master and the owner of the ship are both guilty of an offence and liable on conviction to a fine not exceeding R250 000. (3) If, otherwise than in circumstances to which subsection (1) applies or, in the case
of a ship registered in the Republic, to which subsection (2) applies, at any time a relevant insurance certificate is in force in respect of a ship to which this Part applies and that insurance certificate is not on board that ship, the master and the owner of the ship are both guilty of an offence and liable on conviction to a fine not exceeding R20 000.
8
5
10
15
20
25
30
35
40
45
10 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
(4)An officer may require the master or other person in charge of a ship to produce the relevant insurance certificate that is in force in respect of that ship and, if the master or other person refuses or fails to produce that insurance certificate to the officer, he or she is guilty of an offence and liable on conviction to a fine not exceeding R20 000. (5) If the Authority has reasonable grounds to believe that the master or other person
in charge of a ship is attempting to take the ship out of a port in the Republic at a time when the ship does not have on board the relevant insurance certificate that is in force in respect of that ship, the Authority may detain the ship until such insurance certificate is obtained or produced to the Authority, as the case may be. (6) If a ship detained at a port in terms of subsection (5) leaves the port before it has
been released from detention, the master and the owner of that ship are both guilty of an offence and liable on conviction to a fine not exceeding R500 000 or to imprisonment for a period not exceeding five years, or to both such fine and to such imprisonment. (7) For the purposes of this section, a relevant insurance certificate in respect of a ship
is— (a) if the ship is registered in the Republic and is not a Government ship, a
certificate issued in terms of section 12; (b) if the ship is registered in a Contracting State and is not a Government ship, a
certificate issued in respect of that ship under a law of the Contracting State in question giving effect to Article VII of the 1992 Liability Convention;
(c) if the ship is registered in a state that is not a Contracting State and the ship is not a Government ship, a certificate issued in terms of section 12 or a certificate that must be regarded as a relevant insurance certificate for the ship for the purposes of this paragraph in terms of the regulations;
(d) if the ship is owned by the Government of the Republic, a certificate issued in terms of section 14;
(e) if the ship is owned by the government of a Contracting State, a certificate issued in respect of that ship under a law of the Contracting State in question giving effect to Article VII of the 1992 Liability Convention or a certificate of the kind referred to in section 14(1) issued by the government of that Contracting State; or
(f) if the ship is owned by the government of a state that is not a Contracting State, a certificate of the kind referred to in section 14(1) issued by the government of the state in question or a certificate that must be regarded as a relevant insurance certificate for the ship for the purposes of this paragraph prescribed in terms of the regulations.
(8) In this section, ‘‘officer’’ means a person who— (a) is an officer of customs within the meaning of the Customs and Excise Act,
1964 (Act No. 91 of 1964); (b) is a surveyor for the purposes of the Merchant ShippingAct, 1951 (Act No. 57
of 1951); or (c) is appointed by the Authority, in writing, to be an officer for the purposes of
this section.
Issue of insurance certificates
12. (1) The owner, master or agent of a ship that is registered in the Republic or that is registered in a state that is not a Contracting State, may apply to the Authority for the issue of an insurance certificate for the ship.
(2) The application in terms of subsection (1) must be made in the prescribed manner and form together with the supporting documentation and information determined by the Authority. (3) The Authority must— (a) if it is satisfied that the owner of the ship is maintaining insurance or other
financial security for the ship in an amount that will cover the limits of liability prescribed by paragraph 1 of Article V of the 1992 Liability Convention in relation to the ship, issue to the applicant an insurance certificate for the ship; or
10
5
10
15
20
25
30
35
40
45
50
55
12 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
(b) if it is not so satisfied, refuse to issue such a certificate in respect of the ship. (4) An insurance certificate issued under this section in respect of a ship— (a) must be in accordance with the prescribed form, being a form that contains,
but is not limited to containing, the particulars set out in paragraph 2 ofArticle VII of the 1992 Liability Convention;
(b) comes into force on the day specified in the certificate; and (c) remains in force, subject to this Part, until—
(i) a date 12 months after the day on which the certificate comes into force; or
(ii) the date that the Authority is satisfied is the last day in the balance of the period during which the insurance or other financial security in respect of the ship is to remain in force,
whichever is the earlier date.
Extension, cancellation and lapsing of insurance certificates
13. (1) If— (a) a ship for which an insurance certificate has been issued under section 12 is
not at a port in the Republic at the time when the certificate expires or is about to expire; and
(b) the Authority is satisfied that, after the day specified in the insurance certificate as the day until which the certificate is to remain in force, there will be in force a contract of insurance or other financial security for the ship in an amount that will cover the limits of liability prescribed by paragraph 1 of Article V of the 1992 Liability Convention in relation to the ship,
theAuthority may extend the certificate for a period that expires on or before the day that the Authority is satisfied is the last day in the balance of the period during which that contract of insurance or other financial security is to remain in force, being a period that does not exceed one month from the day contemplated in paragraph (b). (2)An extension of an insurance certificate in terms of subsection (1) expires upon the
ship’s arrival at a port in the Republic. (3) The Authority may cancel an insurance certificate issued under section 12 if it is
satisfied that, because of any modification or variation of, or to, the contract of insurance or other financial security for the ship, the owner of the ship will not be covered for an amount that is not less than the limits of liability prescribed by paragraph 1 of Article V of the 1992 Liability Convention in relation to the ship. (4) If, while an insurance certificate issued under section 12 for a ship registered in the
Republic or in a state that is not a Contracting State is in force, the ship ceases to be registered in the Republic or in the state in question, as the case may be, the certificate so issued thereupon ceases to be in force. (5) (a) If an insurance certificate issued under section 12 is cancelled in terms of
subsection (3) or ceases to be in force by virtue of subsection (4), the master of the ship must without delay return the certificate to the Authority. (b)Amaster who fails to comply with paragraph (a) commits an offence and is liable
on conviction to a fine not exceeding R20 000.
Ships owned by Government of Republic
14. (1) The Minister may, with the approval of the Minister of Finance and in respect of a ship that is owned by the Government of the Republic, issue a certificate certifying that the ship is owned by the Government of the Republic and that any liability for pollution damage up to the limits of liability applicable in relation to the ship under Article V of the 1992 Liability Convention will be met by the Government of the Republic.
(2) Subject to subsection (3), a certificate issued under subsection (1) remains in force for the period stated in the certificate. (3) If, while a certificate issued under subsection (1) is in force, the ship ceases to be
owned by the Government of the Republic, the certificate so issued thereupon ceases to be in force.
12
5
10
15
20
25
30
35
40
45
50
55
14 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
(4) In any proceedings brought in a court in the Republic to enforce a claim in respect of a liability incurred under the 1992 Liability Convention, every Contracting State must be regarded as having submitted to the jurisdiction of that court and must be regarded as having waived any defence based on its status as a sovereign state, but nothing in this subsection must be regarded as allowing the levy of execution against the property of such a State.
PART 4
MISCELLANEOUS
Regulations
15. (1) The Minister may make regulations— (a) regarding any matter which, in terms of this Act, may or must be prescribed; (b) giving effect to Article X of the 1992 Liability Convention; (c) fixing fees to be paid in respect of any matters arising from the application of
Article X of the Convention; (d) regarding the conversion of the amounts of money referred to in paragraph 1
of Article V of the 1992 Liability Convention into amounts of money expressed in South African currency;
(e) regarding guarantees that are acceptable for the purposes of paragraph 3 of Article V of the 1992 Liability Convention;
(f) regarding the extent to which the right of subrogation provided for in paragraph 5 of Article V of the 1992 Liability Convention may be exercised by a person other than a person referred to in that paragraph;
(g) the ascertainment of the tonnage of a ship, including the estimation of the tonnage of a ship in circumstances where it is not possible or reasonably practicable to measure its tonnage; and
(h) regarding any ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implementation or administration of this Act.
(2) Any regulation fixing fees must be made with the approval of the Minister of Finance.
Jurisdiction
16. Despite anything to the contrary contained in any other law, a Magistrate’s Court has jurisdiction to impose any penalty prescribed by this Act.
Amendment of law
17. The law specified in the second column of the Schedule is hereby amended to the extent indicated in the third column thereof.
Transitional provisions
18. Anything done, whether under a law or otherwise, prior to the commencement of this Act, and which can be done under a provision of this Act, must be regarded as having been done under this Act.
Short title and commencement
19. This Act is called the Merchant Shipping (Civil Liability Convention) Act, 2013, and comes in operation on a date fixed by the President by proclamation in the Gazette.
14
5
10
15
20
25
30
35
40
16 No. 37146 GOVERNMENT GAZETTE, 10 December 2013 Act No. 25 of 2013 Merchant Shipping (Civil Liability Convention) Act, 2013
SCHEDULE
(Section 17)
Act No. and Year
Short Title Extent of amendment
Act No. 6 of 1981
Marine Pollution (Control and Civil Liability) Act, 1981
The repeal of sections 13, 14 and 15.
16