Sea Pollution (Hazardous Substances) (Compensation) Act 2005

Sea Pollution (Hazardous Substances) (Compensation) Act 2005 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2005 Sea Pollution (Hazardous Substances) (Compensation) Act 2005 Sea Pollution (Hazardous Substances) (Compensation) Act 2005 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 9 of 2005 SEA POLLUTION (HAZARDOUS SUBSTANCES) (COMPENSATION) ACT 2005 ARRANGEMENT OF SECTIONS PART I Preliminary and General Section 1. Short title, collective citation, collective construction and commencement. 2. Interpretation. 3. Orders. 4. Laying of orders and regulations before Houses of Oireachtas. 5. Expenses. 6. Penalties and offences. 7. Proceedings. PART 2 Convention of 1996 8. Convention to have force of law. 9. Order declaring state (other than State) to be State Party. 10. Hazardous and Noxious Substances Fund. 11. Conversion of amounts in units of account into currency of State for purposes of Convention. 12. Act not to apply to certain ships. 13. Construction of reference to competent public authority. 14. Limitation of liability. 15. Insurance of ships. 16. Actions for compensation under Convention. 17. Final judgment to be recognised and enforceable in State. 18. Application for enforcement order. 19. Payment of interest on judgment and payment of costs. 20. Effect of order under section 18. 21. Documents required to accompany application for order under section 18. 22. Recognition and enforcement of judgment of court or tribunal of Member State of European Community. 23. Inspectors. 24. Detention of ships. 25. Recovery of fines etc. for certain offences. 26. Returns of hazardous and noxious substances received in the State. 27. Contributions to Fund. PART 3 Miscellaneous 28. Construction of certain references in Merchant Shipping (Liability of Shipowners and Others) Act 1996. 29. Amendment of section 8 of Oil Pollution of the Sea (Civil Liability and Compensation) Act 1988. SCHEDULE 1 International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 SCHEDULE 2 Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976 Acts Referred to Companies Act 1963 1963, No. 33 Criminal Procedure Act 1967 1967, No. 12 Fishery Harbour Centres Act 1968 1968, No. 18 Harbours Act 1946 1946, No. 9 Harbours Act 1996 1996, No. 11 Maritime Jurisdiction Acts 1959 to 1988 Mercantile Marine Act 1955 1955, No. 29 Merchant Shipping (Liability of Shipowners and Others) Act 1996 1996, No. 35 Merchant Shipping Acts 1894 to 2000 Oil Pollution of the Sea (Civil Liability and Compensation)(Amendment) Act 1998 1998, No. 13 Oil Pollution of the Sea (Civil Liability and Compensation) Act 1988 1988, No. 11 Oil Pollution of the Sea (Civil Liability and Compensation) Acts 1988 to 2003 Petty Sessions (Ireland) Act 1851 14 & 15 Vict., c. 93 Public Offices Fees Act 1879 42 & 43 Vict., c. 58 Number 9 of 2005 SEA POLLUTION (HAZARDOUS SUBSTANCES) (COMPENSATION) ACT 2005 AN ACT TO GIVE EFFECT TO THE INTERNATIONAL CONVENTION ON LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION WITH THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES BY SEA, 1996, DONE AT LONDON ON THE 3RD DAY OF MAY, 1996; TO GIVE EFFECT TO THE PROTOCOL OF 1996 TO AMEND THE CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS, 1976, DONE AT LONDON ON THE 2nd DAY OF MAY, 1996, AND FOR THAT PURPOSE TO AMEND THE MERCHANT SHIPPING (LIABILITY OF SHIPOWNERS AND OTHERS) ACT 1996; TO AMEND THE OIL POLLUTION OF THE SEA (CIVIL LIABILITY AND COMPENSATION) ACT 1988; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH. [30th May, 2005] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: PART 1 Preliminary and General Short title, collective citation, collective construction and commencement. 1.—(1) This Act may be cited as the Sea Pollution (Hazardous Substances) (Compensation) Act 2005. (2) The Merchant Shipping Acts 1894 to 2000, and section 28 may be cited together as the Merchant Shipping Acts 1894 to 2005 and shall be construed together as one Act. (3) The Oil Pollution of the Sea (Civil Liability and Compensation) Acts 1988 to 2003, and section 29 may be cited together as the Oil Pollution of the Sea (Civil Liability and Compensation) Acts 1988 to 2005. (4) This Act shall come into operation on such day or days as the Minister may, by order or orders, appoint, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions. Interpretation. 2.—(1) In this Act, except where the context otherwise requires— “the Central Bank” means the Central Bank and Financial Services Authority of Ireland; “the Convention” means the International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996, done at London on the 3rd day of May, 1996; “convention court” means, in relation to a State Party (other than the State)— (a) any court or tribunal that under the law of that State Party has jurisdiction to determine liability in respect of damage incurred, and to award compensation therefor, or (b) any court or tribunal that under the law of that State Party has jurisdiction to, adjudicate on any appeal from, or review, a judgment of a court or tribunal referred to in paragraph (a); “Council Regulation” means Council Regulation (EC) No. 44/20011 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; “final judgment” shall be construed in accordance with section 17 (3); “functions” includes powers and duties, and references to the performance of functions include references to the exercise of powers and the carrying out of duties; “harbour authority” means— (a) in the case of a harbour to which the Harbours Act 1946 applies, a harbour authority within the meaning of that Act; (b) in the case of a harbour under the control of a company established pursuant to section 7 of the Harbours Act 1996 the company concerned; (c) in the case of a fishery harbour centre to which the Fishery Harbour Centres Act 1968 applies, the Minister; (d) in the case of a harbour under the control of a local authority, the local authority concerned; (e) in the case of a harbour under the management of Iarnród Éireann — Irish Rail, Iarnród Éireann — Irish Rail; “inspector” means— (a) a person appointed to be an inspector under section 23 , (b) a person holding commissioned rank in the Permanent Defence Forces, while in uniform, (c) a member of the Garda Síochána, while in uniform, (d) as respects the harbour of which he or she is the harbour master, a person appointed to be a harbour master by a harbour authority; “judgment” means a decision of a convention court made in accordance with the provisions of the Convention awarding compensation to a person in respect of damage incurred by him or her; “judgment debtor” means the person against whom a convention court has given a final judgment; “Member State” means a Member State of the European Community (other than the State and Denmark); “Minister” means the Minister for Communications, Marine and Natural Resources; “State Party” means a state that is declared by order under section 9 to be a State Party to the Convention. (2) A reference in this Act to the State includes a reference to— (a) the inland waters of the State, (b) the territorial seas of the State, and the seabed and subsoil beneath those seas, and (c) any area lying within a line, every point of which is 200 nautical miles from the baselines for the purposes of the Maritime Jurisdiction Acts 1959 to 1988 and the waters above it, provided that this paragraph shall not be construed as constituting a claim by the State to any area that— (i) is under the jurisdiction of a state other than the State, and (ii) the State recognises as being under such jurisdiction. (3) A word or expression that is used in this Act and that is also used in the Convention has, in this Act, the meaning that it has in the Convention. (4) In this Act— (a) a reference to a section or Schedule is a reference to a section of, or a Schedule to, this Act, unless it is indicated that reference to some other enactment is intended, (b) a reference to a subsection or paragraph is a reference to a subsection or paragraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and (c) a reference to any enactment is a reference to that enactment as amended, extended or adapted, whether before or after the commencement of this section, by or under any subsequent enactment. Orders. 3.—(1) The Minister may by order amend or revoke an order made by him or her under this Act (other than an order under section 1 (4) but including an order under this subsection). (2) An order under subsection (1) shall be made in the like manner and its making shall be subject to the like (if any) consents and conditions as the order that it is amending or revoking. Laying of orders and regulations before Houses of Oireachtas. 4.—Every order and regulation under this Act (other than an order under section 1 (4)) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling such order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. Expenses. 5.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. Penalties and offences. 6.—(1) (a) A person guilty of an offence under section 15 shall be liable— (i) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months, or to both, or (ii) on conviction on indictment, to a fine not exceeding €1,270,000, or to imprisonment for a term not exceeding 5 years, or to both. (b) A person guilty of an offence under this Act (other than section 15 ) shall be liable— (i) on summary conviction to a fine not exceeding €3,000, or to imprisonment for a term not exceeding 12 months, or to both, or (ii) on conviction on indictment, to a fine not exceeding €13,000, or to imprisonment for a term not exceeding 2 years, or to both. (2) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence under section 15 as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (1)(a)(i), and the reference in subsection (2)(a) of the said section 13 to the penalties provided for by subsection (3) shall be construed and have effect accordingly. (3) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence under this Act (other than section 15 ) as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (1)(b)(i), and the reference in subsection (2)(a) of the said section 13 to the penalties provided for by subsection (3) shall be construed and have effect accordingly. (4) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence. Proceedings. 7.—(1) Summary proceedings for an offence under this Act may be brought and prosecuted by the Minister. (2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act 1851 , summary proceedings for an offence under this Act may be instituted— (a) within 2 years from the date on which the offence was committed, and (b) if at the end of that period, the person to be charged is outside the State, within 2 months of the date on which he or she next enters the State. (3) References in section 382 of the Companies Act 1963 to a company shall, for the purposes of this Act, be construed as including references to a body corporate (whether or not a company within the meaning of that section) charged on indictment with an offence under this Act. PART 2 Convention of 1996 Convention to have force of law. 8.—(1) Subject to the provisions of this Act, the Convention (other than Article 48 in so far as it relates to paragraph 1 of Article 9) shall have the force of law in the State and judicial notice shall be taken thereof. (2) Where the Convention requires the State to impose a duty on any person the duty concerned shall, by virtue of subsection (1), be deemed to be so imposed. (3) For convenience of reference, the text, in the English language, of the Convention is set out in Schedule 1. Order declaring state (other than State) to be State Party. 9.—The Minister may by order declare that any state specified in the order is a State Party to the Convention and such an order shall be evidence that that state is a State Party to the Convention. Hazardous and Noxious Substances Fund. 10.—(1) The Hazardous and Noxious Substances Fund (hereafter referred to in this Act as “the Fund”) is hereby recognised as, and as having all the attributes of, a body corporate, including perpetual succession, the power to acquire, hold and dispose of land or other property and the power to sue, and may be sued in its corporate name. (2) The Director of the Fund is hereby recognised as being the legal representative of the Fund. (3) The reference in paragraph 1 of Article 35 of the Convention to all State Parties shall be construed as a reference to the State. Conversion of amounts in units of account into currency of State for purposes of Convention. 11.—(1) For the purpose of the limits of liability specified in Article 9 of the Convention, the value in the currency of the State of a unit of account shall be taken to be its value, ascertained in accordance with paragraph 9 of that Article, in that currency on the day specified in subparagraph (a) of the said paragraph 9 or, if its value on that day cannot be so ascertained, its value in that currency on the latest day, on which it can be so ascertained, before the first-mentioned day. (2) For the purposes of Article 14 of the Convention, the value in the currency of the State of a unit of account shall be taken to be its value, ascertained in accordance with paragraph 5(d) of that Article, in that currency on the day specified in the said paragraph 5(d) or, if its value on that day cannot be so ascertained, its value on the latest day, on which it can be so ascertained, before the first-mentioned day. (3) For the purposes of this section, a certificate purporting to be signed by an officer of the Central Bank and stating that— (a) a specified amount in the currency of the State is the value of a unit of account on a specified day, or (b) the value in the currency of the State of a unit of account on a specified day cannot be ascertained in accordance with the Convention and that a specified amount in the currency of the State is the value of a unit of account ascertained in accordance with that Convention on a specified day (being the latest day, on which such value can be so ascertained, before the first-mentioned specified day), shall be admissible as evidence of the matters stated in the certificate. Act not to apply to certain ships. 12.—The Minister may, by order declare that this Act shall not apply to ships in respect of which a declaration has been made under Article 5 of the Convention. Construction of reference to competent public authority. 13.—The reference in paragraph 5(d) of Article 7 of the Convention to a competent public authority shall be construed as a reference to the Minister or a harbour authority. Limitation of liability. 14.—(1) The owner of a ship who, or who it is alleged, has incurred a liability under Article 7 of the Convention may (whether proceedings for the recovery of compensation in respect of damage incurred resulting from a specific incident have been instituted against him or her, or not) apply to the High Court for an order limiting his or her liability in accordance with Article 9 of the Convention. (2) Upon application being made under subsection (1) by the owner of the ship concerned (hereafter in this section referred to as “the applicant”), the High Court shall— (a) if satisfied that were it to find that the applicant had incurred a liability under the said Article 7 he or she would be entitled to limit his or her liability in accordance with the said Article 9, and (b) if the applicant pays into court, in accordance with paragraph 3 of that Article, such sum as, in the opinion of the court is equal to the maximum amount of compensation that the owner of the ship would, if he or she so limited his or her liability, be liable to pay in respect of damage caused as a result of the incident concerned, make an order— (i) declaring that where the applicant is so found to have incurred a liability under the said Article 7 the said applicant's liability in respect of damage resulting from the incident concerned shall be limited to the amount of the sum so paid into court, and (ii) that such amounts as may be determined by that court be paid out of the said sum, in accordance with paragraph 4 of Article 9 of the Convention, to such persons (if any) as the court determines are entitled to receive compensation from the said applicant in respect of damage incurred resulting from the incident concerned. Insurance of ships. 15.—(1) The owner of an Irish ship or a ship registered in a state, other than the State or another State Party, may apply to the Minister for a compulsory insurance certificate. (2) The Minister shall, on being satisfied that there is in force, in respect of a ship to which an application under subsection (1) applies, a contract of insurance or other financial security that complies with Article 12 of the Convention, issue a compulsory insurance certificate to the owner thereof. (3) The owner and master of an Irish ship that— (a) is carrying hazardous and noxious substances, and (b) does not have on board a compulsory insurance certificate issued by the Minister under subsection (1), shall each be guilty of an offence. (4) The owner and master of a ship that— (a) is carrying hazardous and noxious substances, (b) is registered in a State Party other than the State, and (c) does not have on board a compulsory insurance certificate that complies with, and is issued or certified in accordance with, the said Article 12, shall, while the ship concerned is in the State, each be guilty of an offence. (5) The owner and master of a ship that— (a) is carrying hazardous and noxious substances, (b) is not registered in the State or another State Party, and (c) does not have on board— (i) a compulsory insurance certificate issued by the Minister under subsection (1), or (ii) a compulsory insurance certificate that otherwise complies with, and is issued or certified in accordance with, the said Article 12, shall, while the ship concerned is in the State, each be guilty of an offence. (6) An application under subsection (1) shall be accompanied by such fee, not exceeding the expense incurred by the Minister in considering such application and issuing a compulsory insurance certificate, as may be prescribed by the Minister. (7) The Public Offices Fees Act 1879 shall not apply to fees under this section. (8) In this section— “compulsory insurance certificate” shall be construed in accordance with Article 12 of the Convention; “Irish ship” shall be construed in accordance with section 9 of the Mercantile Marine Act 1955 . Actions for compensation under Convention. 16.—(1) An action for compensation under the Convention (hereafter in this section referred to as a “convention action”) shall be deemed for the purposes of every enactment and rule of law to be an action founded on tort. (2) Subsection (1) shall not have the effect of applying to a convention action a provision of an enactment or rule of law that is inconsistent with a provision of the Convention. (3) A convention action shall be brought in the High Court. Final judgment to be recognised and enforceable in State. 17.—(1) A final judgment shall be recognised and enforceable in the State. (2) An application for the enforcement of a final judgment shall be made to the High Court. (3) For the purposes of this Act a judgment shall be deemed to be a final judgment where— (a) the time within which, under the law of the State Party concerned, an appeal against the judgment may be brought has expired and no such appeal has been brought, (b) under the law of the State Party concerned there is no provision for an appeal from such judgment, (c) an appeal against the judgment has been withdrawn, or (d) the judgment has been affirmed on appeal by the convention court hearing such appeal, and (i) the time within which, under the law of the State Party concerned, an appeal against the decision to so affirm has expired and no such appeal has been brought, (ii) under the law of the State Party concerned there is no provision for an appeal from the decision to so affirm, or (iii) an appeal against the decision to so affirm has been withdrawn. (4) This section shall not apply to a judgment of a court of a Member State (other than a court or tribunal of a territory of a Member State to which the Council Regulation does not apply). Application for enforcement order. 18.—(1) Subject to subsection (2), the High Court shall, on the hearing of an application for an order for the enforcement of a final judgment, make such an order to the extent that the amount of the compensation to which the judgment relates has not been satisfied. (2) The High Court shall not make an order for the enforcement of a judgment where— (a) the judgment concerned is not a final judgment, (b) the judgment debtor was not served with the document instituting the proceedings in which the judgment was given in sufficient time to enable him or her to arrange for his or her defence, notwithstanding that notice of the proceedings may have been duly served on him or her in the State Party concerned, or (c) the judgment concerned was obtained by fraud. (3) Where, at the hearing of an appeal against an order under subsection (1), the appellant satisfies the court that the judgment in respect of which such order was made is not a final judgment, the court may, on such terms as it considers appropriate— (a) set aside the enforcement order, or (b) adjourn the appeal pending— (i) in circumstances where no appeal against the judgment is brought in the State Party concerned, the expiration of the period within which, under the law of that State Party, an appeal against the judgment may be brought, or (ii) in circumstances where such an appeal is brought, the outcome of any such appeal. (4) This section shall not apply to a judgment of a court of a Member State (other than a court or tribunal of a territory of a Member State to which the Council Regulation does not apply). Payment of interest on judgment and payment of costs. 19.—(1) An order under section 18 may, at the discretion of the court provide for the payment to the applicant concerned by the respondent concerned of the reasonable costs of or incidental to the application for the order. (2) Where, on an application for an order under section 18 , it is shown that, in accordance with the law of the State Party in which the judgment was given, interest on a sum, the payment of which is provided for in the judgment, is recoverable under the judgment at a particular rate or rates and from a particular date or time, the order, if made, shall provide that the person by whom the sum aforesaid is payable shall also be liable to pay the interest aforesaid apart from any interest on costs recoverable by virtue of subsection (1), in accordance with the particulars noted in the order, and the amount of the interest shall be recoverable by the applicant concerned as if it were part of the sum aforesaid: Provided that where the judgment debtor limited his or her liability in accordance with Article 9 of the Convention the aggregate of the interest payable by virtue of this subsection and the amount of compensation payable by the judgment debtor in respect of the incident concerned shall not exceed the maximum amount of compensation payable under that Article in respect of any one incident caused by hazardous and noxious substances carried on board the ship concerned. (3) Interest shall be payable on a sum referred to in subsection (2) of this section only as provided for by this section. Effect of order under section 18 . 20.—A final judgment in respect of which an order under section 18 has been made shall, to the extent to which the enforcement of that judgment is authorised by the enforcement order, be of the same force and effect as if the judgment were a judgment of the High Court. Documents required to accompany application for order under section 18 . 21.—(1) The following documents shall be attached to an application for an order under section 18 , that is to say: (a) a duly certified copy of the judgment to which the application relates, (b) in the case of a judgment that was given in default of appearance or defence, a duly certified copy of the document that establishes that the party in default was served with the document instituting the proceedings to which the said judgment relates or with an equivalent document, and (c) if the High Court so requires, a translation of the documents specified in paragraphs (a) and (b) certified as being a correct translation thereof by a person who is competent to so certify. (2) For the purposes of this section— (a) a document purporting to be a copy of a judgment shall be deemed to be duly certified if it purports— (i) to bear the seal of the convention court that gave it, or (ii) to be certified by any person in his or her capacity as a judge or officer of that court as being a true copy of the judgment, and (b) a document purporting to be a copy of a document specified in subsection (1)(b) shall be deemed to be duly certified if it purports to be certified by a person who in relation to the convention court concerned performs functions the same as or similar to those performed in relation to a court in the State by the registrar or clerk thereof, as being a true copy of such document. Recognition and enforcement of judgment of court or tribunal of Member State of European Community. 22.—The Council Regulation and the European Communities (Civil and Commercial Judgments) Regulations 2002 ( S.I. No. 52 of 2002 ) shall apply in respect of a judgment of a court or tribunal of a Member State (other than a court or tribunal of a territory of a Member State to which the Council Regulation does not apply). Inspectors. 23.—(1) The Minister may appoint such persons or classes of persons as he or she considers appropriate to be inspectors for the purposes of this Act. (2) A person appointed under subsection (1) shall, on his or her appointment, be furnished by the Minister with a warrant of his or her appointment and when exercising a power conferred by this Act shall, if requested by any person thereby affected, produce such warrant to that person for inspection. (3) Whenever an inspector has reasonable grounds for believing that an offence has been committed in relation to a ship under this section or section 15 and the ship concerned is in the State he or she may detain the ship or take it to such place in the State as he or she considers appropriate and there detain it. (4) An inspector may, for the purposes of this Act— (a) stop and board any ship, (b) inspect and examine the ship, (c) inspect and take copies of, or of extracts from the ship's log (if any) and the ship's manifest (if any) and any other records or documents on board the ship relating to the ship or its owner, (d) require the master or any member of the crew of the ship to furnish him or her with such information or documents and give to him or her such assistance as he or she may reasonably require for the purpose of carrying out his or her functions under this Act, (e) inspect and examine any cargo carried on board the ship, or (f) inspect, examine and take samples of any hazardous and noxious substances carried on board the ship. (5) A person who obstructs or interferes with an inspector in the performance of his or her functions under this Act or who fails or refuses to comply with a requirement of an inspector under subsection (4) shall be guilty of an offence. (6) If a ship that has been detained pursuant to this section leaves or attempts to leave the place at which it has been detained the owner and the master of the ship concerned shall each be guilty of an offence. Detention of ships. 24.—(1) Where an inspector, in exercise of the powers conferred on him or her by this Act, detains a ship and the persons on board the ship at a port or other place in the State, an inspector who suspects that an offence under section 15 or 23 has been committed in relation to the ship shall (unless he or she is proceeding under subsection (2)), as soon as may be, apply to a judge of the District Court for an order authorising the continued detention of the ship and those persons, and the said judge may grant an order authorising such detention for a period of 48 hours if he or she is satisfied that the applicant inspector has such a suspicion as aforementioned. (2) Where an inspector, in exercise of the powers conferred on him or her by this Act, detains a ship and the persons on board the ship at a port or other place in the State, an inspector shall, as soon as may be, bring the master of the ship and any other persons on board the ship, against whom proceedings for an offence under section 15 or 23 (6) have been or are about to be instituted, before a judge of the District Court and thereupon the said judge shall, if he or she is satisfied that such proceedings have been or are about to be instituted against the master and those other persons or any one or more of them, by order directed to an inspector, require such inspector to detain at a specified place in the State the ship and each person (including the master) aforesaid in respect of whom he or she is so satisfied, until such proceedings have been adjudicated upon by a court in exercise of its criminal jurisdiction, and when such proceedings are so adjudicated upon the judge of the court concerned may, by order, direct an inspector to further detain the ship at a specified place in the State pending the determination of any appeal from the adjudication concerned or the determination of any other proceedings connected with such adjudication or appeal. (3) Where an inspector, pursuant to an order under subsection (1), continues to detain a ship and the persons on board the ship at a port or other place in the State, an inspector may bring the master and any other persons on board the ship, against whom proceedings for an offence under section 15 or 23 (6) have been or are about to be instituted, before a judge of the District Court and such judge shall— (a) before the expiration of the period of 48 hours to which the said order applies, and (b) if he or she is satisfied that such proceedings have been or are about to be instituted against the master and those other persons or any one or more of them, by order directed to an inspector, require such inspector to detain at a specified place in the State the ship and each person (including the master) aforesaid in respect of whom he or she is so satisfied until such proceedings have been adjudicated upon by a court in exercise of its criminal jurisdiction, and when such proceedings are so adjudicated upon the judge of the court concerned may, by order, direct an inspector to further detain the ship at a specified place in the State pending the determination of any appeal from the adjudication concerned or the determination of any other proceedings connected with such adjudication or appeal. (4) Where an order is made under subsection (2) or (3), a judge of the District Court or, as may be appropriate, the judge of the court adjudicating upon proceedings referred to in those subsections or that has adjudicated upon such proceedings, may by order direct an inspector to release the ship to which the order applies, subject to the giving of security, by or on behalf of the defendant, that in the opinion of the judge concerned would be adequate to provide for the payment of— (a) (i) in circumstances where a court has not yet adjudicated upon such proceedings, the maximum fine for which the defendant would be liable if guilty of the offence to which the proceedings relate, or (ii) in circumstances where the defendant has been convicted in such proceedings, any fine imposed by the court concerned, and (b) the estimated amount of the costs (if any) of any trials, appeals or other proceedings in relation to such an offence for which the defendant would be liable if convicted thereof or would be liable, if on appeal from a conviction for such offence or on the conclusion of any other proceedings connected with such conviction, the conviction were affirmed. (5) Subsection (3) is in addition to and not in substitution for any other power of a court to require the entering into of a bond or recognisance by the defendant in respect of any trials, appeals or other proceedings to which the offence concerned relates. (6) Where an order is made under this section for the detention or release of a ship, the ship shall be detained or released, as the case may be, in accordance with the terms of the order. Recovery of fines etc. for certain offences. 25.—(1) The following provisions shall have effect in relation to the recovery of a fine for an offence under this Act committed by the owner or master of the ship concerned and the costs (if any) ordered to be paid in respect of proceedings for such offence: (a) the court concerned shall fix a time within which such fine and costs (if any) are to be paid; (b) where the ship concerned is detained under section 24 (2) or (3) the court shall by order direct an inspector to further detain the ship at a specified place in the State until such fine and costs (if any) are paid, and the inspector shall comply with such order; (c) where such fine and costs (if any) are not paid within the said time, such fine and costs may be recovered by the distress and sale of such ship, her equipment, furniture and apparel; (d) the court shall order— (i) the payment in whole or in part of any moneys given as security in accordance with subsection (4) of section 24 , or (ii) the sale of any property real or personal given as security in accordance with the said subsection (4) and the payment in whole or in part of the proceeds of any such sale, in satisfaction in whole or in part of such fine and costs (if any). (2) Nothing in subsection (1) shall be construed as preventing a fine or costs to which that subsection applies being recovered from the defendant concerned by ordinary process of law. Returns of hazardous and noxious substances received in the State. 26.—(1) The Minister may by regulations require such persons or classes of persons as are specified therein to submit to him or her— (a) at such intervals, and (b) in respect of such periods, as may be so specified, returns of the amounts and types of hazardous and noxious substances received by them in the State. (2) A person to whom regulations under subsection (1) apply who fails to submit a return in accordance with such regulations or who, in purported compliance with such regulations, submits a return that is false or misleading in a material respect shall be guilty of an offence. Contributions to Fund. 27.—(1) Subject to paragraph 5 of Article 5 of the Convention, in each year such persons or classes of persons as may be prescribed by regulations of the Minister shall, in such manner and on or before such date as may be so prescribed, pay to the Fund such sums as may be determined by the Assembly of the Fund and certified by the Director of the Fund. (2) A person who contravenes subsection (1) shall be guilty of an offence. PART 3 Miscellaneous Construction of certain references in Merchant Shipping (Liability of Shipowners and Others) Act 1996. 28.—(1) References in Part II of the Merchant Shipping (Liability of Shipowners and Others) Act 1996 (other than section 7(2)), to the 1976 Convention shall be construed as references to that Convention as amended by the Protocol of 1996 (other than Article 8 of that Protocol). (2) For convenience of reference, the text, in the English language, of the Protocol of 1996 is set out in Schedule 2. (3) In this section “the Protocol of 1996” means the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976, done at London on the 2nd day of May, 1996. Amendment of section 8 of Oil Pollution of the Sea (Civil Liability and Compensation) Act 1988. 29.—Subsection (2) of section 8 of the Oil Pollution of the Sea (Civil Liability and Compensation) Act 1988 (inserted by section 5 of the Oil Pollution of the Sea (Civil Liability and Compensation) (Amendment) Act 1998 ), is hereby amended by the substitution of the following paragraph for paragraph (e): “(e) any person performing salvage operations in relation to the ship with the consent of the owner of the ship or on the instructions of the Minister or a harbour authority, or”. SCHEDULE 1 International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 Section 8. THE STATES PARTIES TO THE PRESENT CONVENTION, CONSCIOUS of the dangers posed by the world-wide carriage by sea of hazardous and noxious substances, CONVINCED of the need to ensure that adequate, prompt and effective compensation is available to persons who suffer damage caused by incidents in connection with the carriage by sea of such substances, DESIRING to adopt uniform international rules and procedures for determining questions of liability and compensation in respect of such damage, CONSIDERING that the economic consequences of damage caused by the carriage by sea of hazardous and noxious substances should be shared by the shipping industry and the cargo interests involved, HAVE AGREED as follows: Chapter I GENERAL PROVISIONS Definitions Article 1 For the purposes of this Convention: 1. “Ship” means any seagoing vessel and seaborne craft, of any type whatsoever. 2. “Person” means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions. 3. “Owner” means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship's operator, “owner” shall mean such company. 4. “Receiver” means either: (a) the person who physically receives contributing cargo discharged in the ports and terminals of a State Party; provided that if at the time of receipt the person who physically receives the cargo acts as an agent for another who is subject to the jurisdiction of any State Party, then the principal shall be deemed to be the receiver, if the agent discloses the principal to the HNS Fund; or (b) the person in the State Party who in accordance with the national law of that State Party is deemed to be the receiver of contributing cargo discharged in the ports and terminals of a State Party, provided that the total contributing cargo received according to such national law is substantially the same as that which would have been received under (a). 5. “Hazardous and noxious substances” (HNS) means: (a) any substances, materials and articles carried on board a ship as cargo, referred to in (i) to (vii) below: (i) oils carried in bulk listed in appendix I of Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended; (ii) noxious liquid substances carried in bulk referred to in appendix II of Annex II to the International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978 relating thereto, as amended, and those substances and mixtures provisionally categorised as falling in pollution category A, B, C or D in accordance with regulation 3(4) of the said Annex II; (iii) dangerous liquid substances carried in bulk listed in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, 1983, as amended, and the dangerous products for which the preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.3 of the Code; (iv) dangerous, hazardous and harmful substances, materials and articles in packaged form covered by the International Maritime Dangerous Goods Code, as amended; (v) liquefied gases as listed in chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquified Gases in Bulk, 1983, as amended, and the products for which preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code; (vi) liquid substances carried in bulk with a flashpoint not exceeding 60°C (measured by a closed cup test); (vii) solid bulk materials possessing chemical hazards covered by appendix B of the Code of Safe Practice for Solid Bulk Cargoes, as amended, to the extent that these substances are also subject to the provisions of the International Maritime Dangerous Goods Code when carried in packaged form; and (b) residues from the previous carriage in bulk of substances referred to in (a)(i) to (iii) and (v) to (vii) above. 6. “Damage” means: (a) loss of life or personal injury on board or outside the ship carrying the hazardous and noxious substances caused by those substances; (b) loss of or damage to property outside the ship carrying the hazardous and noxious substances caused by those substances; (c) loss or damage by contamination of the environment caused by the hazardous and noxious substances, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and (d) the costs of preventive measures and further loss or damage caused by preventive measures. Where it is not reasonably possible to separate damage caused by the hazardous and noxious substances from that caused by other factors, all such damage shall be deemed to be caused by the hazardous and noxious substances except if, and to the extent that, the damage caused by other factors is damage of a type referred to in article 4, paragraph 3. In this paragraph, “caused by those substances” means caused by the hazardous or noxious nature of the substances. 7. “Preventive measures” means any reasonable measures taken by any person after an incident has occurred to prevent or minimise damage. 8. “Incident” means any occurrence or series of occurrences having the same origin, which causes damage or creates a grave and imminent threat of causing damage. 9. “Carriage by sea” means the period from the time when the hazardous and noxious substances enter any part of the ship's equipment, on loading, to the time they cease to be present in any part of the ship's equipment, on discharge. If no ship's equipment is used, the period begins and ends respectively when the hazardous and noxious substances cross the ship's rail. 10. “Contributing cargo” means any hazardous and noxious substances which are carried by sea as cargo to a port or terminal in the territory of a State Party and discharged in that State. Cargo in transit which is transferred directly, or through a port or terminal, from one ship to another, either wholly or in part, in the course of carriage from the port or terminal of original loading to the port or terminal of final destination shall be considered as contributing cargo only in respect of receipt at the final destination. 11. The “HNS Fund” means the International Hazardous and Noxious Substances Fund established under article 13. 12. “Unit of account” means the Special Drawing Right as defined by the International Monetary Fund. 13. “State of the ship's registry” means in relation to a registered ship the State of registration of the ship, and in relation to an unregistered ship the State whose flag the ship is entitled to fly. 14. “Terminal” means any site for the storage of hazardous and noxious substances received from waterborne transportation, including any facility situated off-shore and linked by pipeline or otherwise to such site. 15. “Director” means the Director of the HNS Fund. 16. “Organisation” means the International Maritime Organisation. 17. “Secretary-General” means the Secretary-General of the Organisation. Annexes Article 2 The Annexes to this Convention shall constitute an integral part of this Convention. Scope of application Article 3 This Convention shall apply exclusively: (a) to any damage caused in the territory, including the territorial sea, of a State Party; (b) to damage by contamination of the environment caused in the exclusive economic zone of a State Party, established in accordance with international law, or, if a State Party has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured; (c) to damage, other than damage by contamination of the environment, caused outside the territory, including the territorial sea, of any State, if this damage has been caused by a substance carried on board a ship registered in a State Party or, in the case of an unregistered ship, on board a ship entitled to fly the flag of a State Party; and (d) to preventive measures, wherever taken. Article 4 1. This Convention shall apply to claims, other than claims arising out of any contract for the carriage of goods and passengers, for damage arising from the carriage of hazardous and noxious substances by sea. 2. This Convention shall not apply to the extent that its provisions are incompatible with those of the applicable law relating to workers' compensation or social security schemes. 3. This Convention shall not apply: (a) to pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended, whether or not compensation is payable in respect of it under that Convention; and (b) to damage caused by a radioactive material of class 7 either in the International Maritime Dangerous Goods Code, as amended, or in appendix B of the Code of Safe Practice for Solid Bulk Cargoes, as amended. 4. Except as provided in paragraph 5, the provisions of this Convention shall not apply to warships, naval auxiliary or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service. 5. A State Party may decide to apply this Convention to its war-ships or other vessels described in paragraph 4, in which case it shall notify the Secretary-General thereof specifying the terms and conditions of such application. 6. With respect to ships owned by a State Party and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in article 38 and shall waive all defences based on its status as a sovereign State. Article 5 1. A State may, at the time of ratification, acceptance, approval of, or accession to, this Convention or any time thereafter, declare that this Convention does not apply to ships; (a) which do not exceed 200 gross tonnage; and (b) which carry hazardous and noxious substances only in packaged form; and (c) while they are engaged on voyages between ports or facilities of that State. 2. Where two neighbouring States agree that this Convention does not apply also to ships which are covered by paragraph 1(a) and (b) while engaged on voyages between ports or facilities of those States, the States concerned may declare that the exclusion from the application of this Convention declared under paragraph 1 covers also ships referred to in this paragraph. 3. Any State which has made the declaration under paragraph 1 or 2 may withdraw such declaration at any time. 4. A declaration made under paragraph 1 or 2, and the withdrawal of the declaration made under paragraph 3, shall be deposited with the Secretary-General who shall, after the entry into force of this Convention, communicate it to the Director. 5. Where a State has made a declaration under paragraph 1 or 2 and has not withdrawn it, hazardous and noxious substances carried on board ships covered by that paragraph shall not be considered to be contributing cargo for the purpose of application of articles 18, 20, article 21, paragraph 5 and article 43. 6. The HNS Fund is not liable to pay compensation for damage caused by substances carried by a ship to which the Convention does not apply pursuant to a declaration made under paragraph 1 or 2, to the extent that: (a) the damage as defined in article 1, paragraph 6(a), (b) or (c) was caused in: (i) the territory, including the territorial sea, of the State which has made the declaration, or in the case of neighbouring States which have made a declaration under paragraph 2, of either of them; or (ii) the exclusive economic zone, or area mentioned in article 3(b), of the State or States referred to in (i); (b) the damage includes measures taken to prevent or minimise such damage. Duties of State Parties Article 6 Each State Party shall ensure that any obligation arising under this Convention is fulfilled and shall take appropriate measures under its law including the imposing of sanctions as it may deem necessary, with a view to the effective execution of any such obligation. Chapter II LIABILITY Liability of the owner Article 7 1. Except as provided in paragraphs 2 and 3, the owner at the time of an incident shall be liable for damage caused by any hazardous and noxious substances in connection with their carriage by sea on board the ship, provided that if an incident consists of a series of occurrences having the same origin the liability shall attach to the owner at the time of the first of such occurrences. 2. No liability shall attach to the owner if the owner proves that: (a) the damage resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or (b) the damage was wholly caused by an act or omission done with the intent to cause damage by a third party; or (c) the damage was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function; or (d) the failure of the shipper or any other person to furnish information concerning the hazardous and noxious nature of the substances shipped either (i) has caused the damage, wholly or partly; or (ii) has led the owner not to obtain insurance in accordance with article 12; provided that neither the owner nor its servants or agents knew or ought reasonably to have known of the hazardous and noxious nature of the substances shipped. 3. If the owner proves that the damage resulted wholly or partly either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from liability to such person. 4. No claim for compensation for damage shall be made against the owner otherwise than in accordance with this Convention. 5. Subject to paragraph 6, no claim for compensation for damage under this Convention or otherwise may be made against: (a) the servants or agents of the owner or the members of the crew; (b) the pilot or any other person who, without being a member of the crew, performs services for the ship; (c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship; (d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority; (e) any person taking preventive measures; and (f) the servants or agents of persons mentioned in (c), (d) and (e); unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. 6. Nothing in this Convention shall prejudice any existing right of recourse of the owner against any third party, including, but not limited to, the shipper or the receiver of the substance causing the damage, or the persons indicated in paragraph 5. Incidents involving two or more ships Article 8 1. Whenever damage has resulted from an incident involving two or more ships each of which is carrying hazardous and noxious substances, each owner, unless exonerated under article 7, shall be liable for the damage. The owners shall be jointly and severally liable for all such damage which is not reasonably separable. 2. However, owners shall be entitled to the limits of liability applicable to each of them under article 9. 3. Nothing in this article shall prejudice any right of recourse of an owner against any other owner. Limitation of liability Article 9 1. The owner of a ship shall be entitled to limit liability under this Convention in respect of any one incident to an aggregate amount calculated as follows: (a) 10 million units of account for a ship not exceeding 2,000 units of tonnage; and (b) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (a): for each unit of tonnage from 2,001 to 50,000 units of tonnage, 1,500 units of account; for each unit of tonnage in excess of 50,000 units of tonnage, 360 units of account; provided, however, that this aggregate amount shall not in any event exceed 100 million units of account. 2. The owner shall not be entitled to limit liability under this Convention if it is proved that the damage resulted from the personal act or omission of the owner, committed with the intent to cause such damage, or recklessly and with knowlege that such damage would probably result. 3. The owner shall, for the purpose of benefitting from the limitation provided for in paragraph 1, constitute a fund for the total sum representing the limit of liability established in accordance with paragraph 1 with the court or other competent authority of any one of the States Parties in which action is brought under article 38 or, if no action is brought, with any court or other competent authority in any one of the States Parties in which an action can be brought under article 38. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the law of the State Party where the fund is constituted, and considered to be adequate by the court or other competent authority. 4. Subject to the provisions of article 11, the fund shall be distributed among the claimants in proportion to the amounts of their established claims. 5. If before the fund is distributed the owner or any of the servants or agents of the owner or any person providing to the owner insurance or other financial security has as a result of the incident in question, paid compensation for damage, such person shall, up to the amount that person has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention. 6. The right of subrogation provided for in paragraph 5 may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for damage which such person may have paid but only to the extent that such subrogation is permitted under the applicable national law. 7. Where owners or other persons establish that they may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which the right of subrogation would have been enjoyed under paragraphs 5 or 6 had the compensation been paid before the fund was distributed, the court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce the claim against the fund. 8. Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimise damage shall rank equally with other claims against the fund. 9. (a) The amounts mentioned in paragraph 1 shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the constitution of the fund referred to in paragraph 3. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of t …