Lag (2005:253) om ersättning från de internationella oljeskadefonderna

Lag (2005:253) om ersättning från de internationella oljeskadefonderna SFS nr: 2005:253 Departement/myndighet: Justitiedepartementet L3 Utfärdad: 2005-04-14 Omtryck: Ändrad: t.o.m. SFS 2014:930 Övrig text: Källa: Regeringskansliet / Lagrummet Internationella bestämmelser som skall gälla som svensk lag 1 § Som svensk lag skall gälla originaltexterna av 1. bestämmelserna i artiklarna 1-4, 6-10, 12 och 13 i 1992 års internationella konvention om upprättandet av en internationell fond för ersättning av skada orsakad av förorening genom olja (1992 års fondkonvention), med de ändringar som har gjorts genom Internationella sjöfartsorganisationens resolution LEG.2(82) den 18 oktober 2000 om ändringar av ansvarsbeloppen i 1992 års protokoll till 1971 års internationella konvention om upprättandet av en internationell fond för ersättning av skada orsakad av förorening genom olja, och 2. bestämmelserna i artiklarna 1-12, 15 och 18 i 2003 års protokoll till 1992 års internationella konvention om upprättandet av en internationell fond för ersättning av skada orsakad av förorening genom olja (2003 års fondprotokoll). Detta gäller dock inte till den del bestämmelserna uteslutande reglerar de fördragsslutande staternas inbördes förpliktelser. De engelska originaltexterna till 1992 års fondkonvention, resolutionen och 2003 års fondprotokoll i de delar som anges i första stycket finns tillsammans med svenska översättningar intagna som bilaga 1-4 till denna lag. Originaltexterna skall ha samma giltighet. Oljeskadefondernas regressrätt 2 § Ett belopp som 1992 års internationella oljeskadefond har betalat i ersättning enligt artikel 4 i 1992 års fondkonvention eller som 2003 års internationella kompletterande oljeskadefond har betalat enligt artikel 4 i 2003 års fondprotokoll, får respektive fond kräva åter av en person som anges i 10 kap. 4 § andra stycket a, b eller e--g sjölagen (1994:1009) endast under de förutsättningar som anges i dessa lagrum. I övrigt får fonderna kräva åter ett utbetalat ersättningsbelopp av någon annan än fartygsägaren eller dennes garant endast i den utsträckning som följer av 7 kap. 9 § försäkringsavtalslagen (2005:104). Lag (2005:880). Behörig domstol 3 § Talan om ersättning för oljeskada, som enligt artikel 7.1 eller 7.3 i 1992 års fondkonvention eller enligt artikel 7 i 2003 års fondprotokoll får tas upp i Sverige, skall väckas vid den domstol som enligt 21 kap. 5 § tredje stycket sjölagen (1994:1009) är behörig att ta upp talan mot fartygets ägare i anledning av samma olycka. Underrättelse om rättegång 4 § I fråga om underrättelser som avses i artikel 7.6 i 1992 års fondkonvention och i artikel 7.1 i 2003 års fondprotokoll skall bestämmelserna i 14 kap. 12 och 13 §§ rättegångsbalken om kungörande av rättegång tillämpas. Erkännande och verkställighet av dom 5 § I fråga om erkännande, verkställbarhet och verkställighet av en dom mot 2003 års internationella kompletterande oljeskadefond ska Europaparlamentets och rådets förordning (EU) nr 1215/2012 av den 12 december 2012 om domstols behörighet och om erkännande och verkställighet av domar på privaträttens område (2012 års Bryssel I-förordning) eller rådets förordning (EG) nr 44/2001 av den 22 december 2000 om domstols behörighet och om erkännande och verkställighet av domar på privaträttens område (2000 års Bryssel I-förordning) tillämpas, om domen har meddelats i en stat där dessa bestämmelser gäller. Om en tillämpning av 2012 års Bryssel I-förordning eller 2000 års Bryssel I-förordning leder till att domen inte skulle erkännas, förklaras verkställbar eller verkställas i Sverige, ska frågan i stället avgöras enligt artikel 8.1 i 2003 års fondprotokoll. Lag (2014:930). 6 § När en fråga uppkommer om verkställbarhet av en dom enligt artikel 8 i 1992 års fondkonvention, tillämpas det förfarande som föreskrivs i 21 kap. 6 § sjölagen (1994:1009). Detta förfarande tillämpas också när en fråga uppkommer om verkställbarhet av en dom enligt artikel 8.1 i 2003 års fondprotokoll. Om domen har meddelats av en domstol i en stat där 2012 års Bryssel I-förordning eller 2000 års Bryssel I-förordning gäller, tillämpas dock det förfarande som föreskrivs i dessa förordningar och i lagen (2014:912) med kompletterande bestämmelser om domstols behörighet och om erkännande och internationell verkställighet av vissa avgöranden. Lag (2014:930). Övergångsbestämmelser 2005:253 1. Denna lag träder i kraft den dag regeringen bestämmer. 2. Genom lagen upphävs lagen (1973:1199) om ersättning från den internationella oljeskadefonden. 3. Den gamla lagen gäller fortfarande, om den händelse som kan utgöra grund för ersättning har inträffat före den nya lagens ikraftträdande. 2014:930 1. Denna lag träder i kraft den 10 januari 2015. 2. Äldre föreskrifter gäller för handläggningen i Svea hovrätt och Högsta domstolen av ärenden som har inletts i hovrätten före ikraftträdandet. Bilaga 1 Artiklarna 1-4, 6-10, 12 och 13 i 1971 års internationella konvention om upprättandet av en internationell fond för ersättning av skada orsakad av förorening genom olja International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Supplementary to the International Convention on Civil Liability for Oil Pollution Damage, 1969) The States Parties to the present Convention, Being parties to the International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels on 29 November 1969, Concious of the dangers of pollution posed by the worldwide maritime carriage of oil in bulk, Convinced of 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, Considering that the International Convention of 29 November 1969, on Civil Liability for Oil Pollution Damage, by providing a régime for compensation for pollution damage in Contracting States and for the costs of measures, wherever taken, to prevent or minimize such damage, represents a considerable progress towards the achievement of this aim, Considering however that this régime does not afford full compensation for victims of oil pollution damage in all cases while it imposes an additional financial burden on shipowners, Considering further that the economic consequences of oil pollution damage resulting from the escape or discharge of oil carried in bulk at sea by ships should not exclusively be borne by the shipping industry but should in part be borne by the oil cargo interests, Convinced of the need to elaborate a compensation and indemnification system supplementary to the International Convention on Civil Liability for Oil Pollution Damage with a view to ensuring that full compensation will be available to victims of oil pollution incidents and that the shipowners are at the same time given relief in respect of the additional financial burdens imposed on them by the said Convention, Taking note of the Resolution on the Establishment of an International Compensation Fund for Oil Pollution Damage which was adopted on 29 November 1969 by the International Legal Conference on Marine Pollution Damage, Have agreed as follows: General Provisions Article 1 For the purposes of this Convention - 1. "Liability Convention" means the International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels on 29 November 1969. 2. "Ship", "Person", "Owner", "Oil", "Pollution Damage", "Preventive Measures", "Incident" and "Organization", have the same meaning as in Article I of the Liability Convention, provided however that, for the purposes of these terms, "oil" shall be confined to persistent hydrocarbon mineral oils. 3. "Contributing Oil" means crude oil and fuel oil as defined in subparagraphs (a) and (b) below: (a) "Crude Oil" means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation. It also includes crude oils from which certain distillate fractions have been removed (sometimes referred to as "topped crudes") or to which certain distillate fractions have been added (sometimes referred to as "spiked" or "reconstituted" crudes). (b) "Fuel Oil" means heavy distillates or residues from crude oil or blends of such materials intended for use as a fuel for the production of heat or power of a quality equivalent to the "American Society for Testing and Materials' Specification for Number Four Fuel Oil (Designation D 396-69)", or heavier. 4. "Unit of Account" or "Monetary Unit" means the unit of account or monetary unit as the case may be, referred to in Article V of the Liability Convention, as amended by the Protocol thereto adopted on 19 November 1976. 5. "Ship's tonnage" has the same meaning as in Article V, paragraph 10, of the Liability Convention. 6. "Ton", in relation to oil, means a metric ton. 7. "Guarantor" means any person providing insurance or other financial security to cover an owner's liability in pursuance of Article VII, paragraph 1, of the Liability Convention. 8. "Terminal installation" means any site for the storage of oil in bulk which is capable of receiving oil from waterborne transportation, including any facility situated off-shore and linked to such site. 9. Where an incident consists of a series of occurrences, it shall be treated as having occurred on the date of the first such occurrence. Article 2 1. An International Fund for compensation for pollution damage, to be named "The International Oil Pollution Compensation Fund" and hereinafter referred to as "The Fund", is hereby established with the following aims: (a) to provide compensation for pollution damage to the extent that the protection afforded by the Liability Convention is inadequate; (b) to give relief to shipowners in respect of the additional financial burden imposed on them by the Liability Convention, such relief being subject to conditions designed to ensure compliance with safety at sea and other conventions; (c) to give effect to the related purposes set out in this Convention. 2. The Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assumig rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognize the Director of the Fund (hereinafter referred to as "The Director") as the legal representative of the Fund. Article 3 This Convention shall apply: 1. With regard to compensation according to Article 4, exclusively to pollution damage caused on the territory including the territorial sea of a Contracting State, and to preventive measures taken to prevent or minimize such damage; 2. With regard to indemnification of shipowners and their guarantors according to Article 5, exclusively in respect of pollution damage caused on the territory, including the territorial sea, of a State party to the Liability Convention by a ship registered in or flying the flag of a Contracting State and in respect of preventive measures taken to prevent or minimize such damage. Compensation and indemnification Article 4 1. For the purpose of fulfilling its function under Article 2, paragraph 1(a), the Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of the Liability Convention, (a) because no liability for the damage arises under the Liability Convention; (b) because the owner liable for the damage under the Liability Convention is financially incapable of meeting his obligations in full and any financial security that may be provided under Article VII of that Convention does not cover or is insufficient to satisfy the claims for compensation for the damage; an owner being treated as financially incapable of meeting his obligations and a financial security being treated as insufficient if the person suffering the damage has been unable to obtain full satisfaction of the amount of compensation due under the Liability Convention after having taken all reasonable steps to pursue the legal remedies available to him; (c) because the damage exceeds the owner's liability under the Liability Convention as limited pursuant to Article V, paragraph 1, of that Convention or under the terms of any other international Convention in force or open for signature, ratification or accession at the date of this Convention. Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall be treated as pollution damage for the purposes of this Article. 2. The Fund shall incur no obligation under the preceding paragraph if: (a) it proves that the pollution damage resulted from an act of war, hostilities, civil war or insurrection or was caused by oil which has escaped or been discharged from a warship or other ship owned or operated by a State and used, at the time of the incident, only on Government non-commercial service; or (b) the claimant cannot prove that the damage resulted from an incident involving one or more ships. 3. If the Fund proves that the pollution damage resulted wholly or partially 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 Fund may be exonerated wholly or partially from its obligation to pay compensation to such person provided, however, that there shall be no such exoneration with regard to such preventive measures which are compensated under paragraph 1. The Fund shall in any event be exonerateed to the extent that the shipowner may have been exonerateed under Article III, paragraph 3, of the Liability Convention. 4. (a) Except as otherwise provided in subparagraph (b) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the Liability Convention for pollution damage caused in the territory of the Contracting States, including any sums in respect of which the Fund is under an obligation to indemnify the owner pursuant to Article 5, paragraph 1, of this Convention, shall not exceed 60 million units of account or 900 million monetary units. (b) The aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 60 million units of account or 900 million monetary units. 5. Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under the Liability Convention and this Convention shall be the same for all claimants. 6. The Assembly of the Fund (hereinafter referred to as "the Assembly") may, having regard to the experience of incidents which have occurred and in particular the amount of damage resulting therefrom and to changes in the monetary values, decide that the amount of 30 million units of account or 450 million monetary units referred to in paragraph 4, subparagraphs (a) and (b), shall be changed; provided, however, that this amount shall in no case exceed 60 million units of account or 900 million monetary units or be lower than 30 million units of account or 450 million monetary units. The changed amount shall apply to incidents which occur after the date of the decision effecting the change. 7. The Fund shall, at the request of a Contracting State, use its good offices as necessary to assist that State to secure promptly such personnel, material and services as are necessary to enable the State to take measures to prevent or mitigate pollution damage arising from an incident in respect of which the Fund may be called upon to pay compensation under this Convention. 8. The Fund may on conditions to be laid down in the Internal Regulations provide credit facilities with a view to the taking of preventive measures against pollution damage arising from a particular incident in respect of which the Fund may be called upon to pay compensation under this Convention. Article 6 1. Rights to compensation under Article 4 or indemnification under Article 5 shall be extinguished unless an action is brought thereunder or a notification has been made pursuant to Article 7, paragraph 6, within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage. 2. Notwithstanding paragraph 1, the right of the owner or his guarantor to seek indemnification from the Fund pursuant to Article 5, paragraph 1, shall in no case be extinguished before the expiry of a period, of six months as from the date on which the owner or his guarantor acquired knowledge of the bringing of an action against him under the Liability Convention. Article 7 1. Subject to the subsequent provisions of this Article, any action against the Fund for compensation under Article 4 or indemnification under Article 5 of this Convention shall be brought only before a court competent under Article IX of the Liability Convention in respect of actions against the owner who is or who would, but for the provisions of Article III, paragraph 2, of that Convention, have been liable for pollution damage caused by the relevant incident. 2. Each Contracting State shall ensure that its courts possess the necessary jurisdiction to entertain such actions against the Fund as are referred to in paragraph 1. 3. Where an action for compensation for pollution damage has been brought before a court competent under Article IX of the Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Fund for compensation or indemnification under the provisions of Article 4 or 5 of this Convention in respect of the same damage. However, where an action for compensation for pollution damage under the Liability Convention has been brought before a court in a State Party to the Liability Convention but not to this Convention, any action against the Fund under Article 4 or under Article 5, paragraph 1, of this Convention shall at the option of the claimant be brought either before a court of the State where the Fund has its headquarters or before any court of a State Party to this Convention competent under Article IX of the Liability Convention. 4. Each Contracting State shall ensure that the Fund shall have the right to intervene as a party to any legal proceedings instituted in accordance with Article IX of the Liability Convention before a competent court of that State against the owner of a ship or his guarantor. 5. Except as otherwise provided in paragraph 6, the Fund shall not be bound by any judgment or decision in proceedings to which it has not been a party or by any settlement to which it is not a party. 6. Without prejudice to the provisions of paragraph 4, where an action under the Liability Convention for compensation for pollution damage has been brought against an owner or his guarantor before a competent court in a Contracting State, each party to the proceedings shall be entitled under the national law of that State to notify the Fund of the proceedings. Where such notification has been made in accordance with the formalities required by the law of the court seized and in such time and in such manner that the Fund has in fact been in a position effectively to intervene as a party to the proceedings, any judgment rendered by the court in such proceedings shall, after it has become final and enforceable in the State where the judgment was given, become binding upon the Fund in the sense that the facts and findings in that judgment may not be disputed by the Fund even if the Fund has not actually intervened in the proceedings. Article 8 Subject to any decision concerning the distribution referred to in Article 4, paragraph 5, any judgment given against the Fund by a court having jurisdiction in accordance with Article 7, paragraphs 1 and 3, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in Article X of the Liability Convention. Article 9 1. Subject to the provisions of Article 5, the Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund in accordance with Article 4, paragraph 1, of this Convention, acquire by subrogation the rights that the person so compensated may enjoy under the Liability Convention against the owner or his guarantor. 2. Nothing in this Convention shall prejudice any right of recourse or subrogation of the Fund against persons other than those referred to in the preceding paragraph. In any event the right of the Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation or indemnification has been paid. 3. Without prejudice to any other rights of subrogation or recourse against the Fund which may exist, a Contracting State or agency thereof which has paid compensation for pollution damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention. Contributions Article 10 1. Contributions to the Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in Article 11, paragraph 1, as regards initial contributions and in Article 12, paragraphs 2(a) or (b), as regards annual contributions, has received in total quantities exceeding 150,000 tons: (a) in the ports or terminal installations in the territory of that State contributing oil carried by sea to such ports or terminal installations; and (b) in any installations situated in the territory of that Contracting State contributing oil which has been carried by sea and discharged in a port or terminal installation of a non- Contracting State, provided that contributing oil shall only be taken into account by virtue of this subparagraph on first receipt in a Contracting State after its discharge in that nonContracting State. 2. (a) For the purposes of paragraph 1, where the quantity of contributing oil received in the territory of a Contracting State by any person in a calendar year when aggregated with the quantity of contributing oil received in the same Contracting State in that year by any associated person or persons exceeds, 150,000 tons, such person shall pay contributions in respect of the actual quantity received by him notwithstanding that that quantity did not exceed 150,000 tons. (b) "Associated persons" means any subsidiary or commonly controlled entity. The question whether a person comes within this definition shall be determinded by the national law of the State concerned. Article 12 1. With a view to assessing for each person referred to in Article 10 the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the Assembly shall for each calendar year make an estimate in the form of a budget of: (i) Expenditure (a) costs and expenses of the administration of the Fund in the relevant year and any deficit from operations in preceding years; (b) payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4 or 5, including repayment on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident does not exceed 1 million units of account or 15 million monetary units; (c) payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4 or 5, including repayments on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident is in excess of 1 million units of account or 15 million monetary units; (ii) Income (a) surplus funds from operations in preceding years, including any interest; (b) initial contributions to be paid in the course of the year; (c) annual contributions, if required to balance the budget; (d) any other income. 2. For each person referred to in Article 10 the amount of his annual contribution shall be determined by the Assembly and shall be calculateed in respect of each Contracting State: (a) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(a) and (b) on the basis of a fixed sum for each ton of contributing oil received in the relevant State by such persons during the preceding calendar year; and (b) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(c) of this Article on the basis of a fixed sum for each ton of contributing oil received by such person during the calendar year preceding that in which the incident in question occurred, provided that State was a party to this Convention at the date of the incident. 3. The sums referred to in paragraph 2 above shall be arrived at by dividing the relevant total amount of contributions required by the total amount of contributing oil received in all Contracting States in the relevant year. 4. The Assembly shall decide the portion of the annual contribution which shall be immediately paid in cash and decide on the date of payment. The remaining part of each annual contribution shall be paid upon notification by the Director. 5. The Director may, in cases and in accordance with conditions to be laid down in the Internal Regulations of the Fund, require a contributor to provide financial security for the sums due from him. 6. Any demand for payments made under paragraph 4 shall be called rateably from all individual contributors. Article 13 1. The amount of any contribution due under Article 12 and which is in arrear shall bear interest at a rate which shall be determined by the Assembly for each calendar year provided that different rates may be fixed for different circumstances. 2. Each Contracting State shall ensure that any obligation to contribute to the Fund arising under this Convention in respect of oil received within the territory of that State is fulfilled and shall take any appropriate measures under its law, including the imposing of such sanctions as it may deem necessary, with a view to the effective execution of any such obligation; provided, however, that such measures shall only be directed against those persons who are under an obligation to contribute to the Fund. 3. Where a person who is liable in accordance with the provisions of Articles 10 and 11 to make contributions to the Fund does not fulfil his obligations in respect of any such contribution or any part thereof and is in arrear for a period exceeding three months, the Director shall take all appropriate actions against such person on behalf of the Fund with a view to the recovery of the amount due. However, where the defaulting contributor is manifestly insolvent or the circumstances otherwise so warrant, the Assembly may, upon recommendation of the Director, decide that no action shall be taken or continued against the contributor. Protocol of 1992 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 The Parties to the present Protocol, Having considered the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, and the 1984 Protocol thereto, Having noted that the 1984 Protocol to that Convention, which provides for improved scope and enhanced compensation, has not entered into force, Affirming the importance of maintaining the viability of the international oil pollution liability and compensation system, Aware of the need to ensure the entry into force of the content of the 1984 Protocol as soon as possible, Recognizing the advantage for the States Parties of arranging for the amended Convention to coexist with and be supplementary to the original Convention for a transitional period, Convinced that the economic consequences of pollution damage resulting from the carriage of oil in bulk at sea by ships should continue to be shared by the shipping industry and by the oil cargo interests, Bearing in mind the adoption of the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969, Have agreed as follows: Article 1 The Convention which the provisions of this Protocol amend is the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, hereinafter referred to as the "1971 Fund Convention". For States Parties to the Protocol of 1976 to the 1971 Fund Convention, such reference shall be deemed to include the 1971 Fund Convention as amended by that Protocol. Article 2 Article 1 of the 1971 Fund Convention is amended as follows: 1. Paragraph 1 is replaced by the following text: 1. "1992 Liability Convention" means the International Convention on Civil Liability for Oil Pollution Damage, 1992. 2. After paragraph 1 a new paragraph is inserted as follows: 1 bis. "1971 Fund Convention" means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1971 Fund Convention as amended by that Protocol. 3. Paragraph 2 is replaced by the following text: 2. "Ship", "Person", "Owner", "Oil", "Pollution Damage", "Preventive Measures", "Incident" and "Organization" have the same meaning as in Article I of the 1992 Liability Convention. 4. Paragraph 4 is replaced by the following text: 4. "Unit of account" has the same meaning as in Article V, paragraph 9, of the 1992 Liability Convention. 5. Paragraph 5 is replaced by the following text: 5. "Ship's tonnage" has the same meaning as in Article V, paragraph 10, of the 1992 Liability Convention. 6. Paragraph 7 is replaced by the following text: 7. "Guarantor" means any person providing insurance or other financial security to cover an owner's liability in pursuance of Article VII, paragraph 1, of the 1992 Liability Convention. Article 3 Article 2 of the 1971 Fund Convention is amended as follows: Paragraph 1 is replaced by the following text: 1. An international Fund for compensation for pollution damage, to be named "The International Oil Pollution Compensation Fund 1992" and hereinafter referred to as "the Fund" is hereby established with the following aims: (a) to provide compensation for pollution damage to the extent that the protection afforded by the 1992 Liability Convention is inadequate; (b) to give effect to the related purposes set out in this Convention. Article 4 Article 3 of the 1971 Fund Convention is replaced by the following text: 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 the baseline from which the breadth of its territorial sea is measured; (b) to preventive measures, wherever taken, to prevent or minimize such damage. Article 5 The heading to Articles 4 to 9 of the 1971 Fund Convention is amended by deleting the words "and indemnification". Article 6 Article 4 of the 1971 Fund Convention is amended as follows: 1. In paragraph 1 the five references to "the Liability Convention" are replaced by references to "the 1992 Liability Convention". 2. Paragraph 3 is replaced by the following text: 3. If the Fund proves that the pollution damage resulted wholly or partially either from an act or omission done with the intent to cause damage by the person who suffered the damage or from the negligence of that person, the Fund may be exonerated wholly or partially from its obligations to pay compensation to such person. The Fund shall in any event be exonerated under Article III, paragraph 3, of the 1992 Liability Convention. However, there shall be no such exoneration of the Fund with regard to preventive measures. 3. Paragraph 4 is replaced by the following text: 4. (a) Except as otherwise provided in subparagraphs (b) and (c) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the 1992 Liability Convention for pollution damage within the scope of application of this Convention so defined in Article 3 shall not exceed 135 million units of account. (b) Except as otherwise provided in subparagraph (c), the aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional inevitable and irresistible character shall not exceed 135 million units of account. (c) The maximum amount of compensation referred to in subparagraphs (a) and (b) shall be 200 million units of account with respect to any incident occuring during any period when there are three Parties to this Convention in respect of which the combined relevant quantity of contributing oil received by persons in the territories of such Parties, during the preceding calendar year, equalled or exceeded 600 million tons. (d) Interest accrued on a fund constituted in accordance with Article V, paragraph 3, of the 1992 Liability Convention, if any, shall not be taken into account for the computation of the maximum compensation payable by the Fund under this Article. (e) The amounts mentioned in this Article shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of decision of the Assembly of the Fund as to the date of payment of compensation. 4. Paragraph 5 is replaced by the following text: 5. Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Convention shall be the same for all claimants. 5. Paragraph 6 is replaced by the following text: 6. The Assembly of the Fund may decide that, in exceptional cases, compensation in accordance with this Convention can be paid even if the owner of the ship has not constituted a fund in accordance with Article V, paragraph 3, of the 1992 Liability Convention. In such case paragraph 4 (e) of this Article applies accordingly. Article 8 Article 6 of the 1971 Fund Convention is amended as follows: 1. In paragraph 1 the paragraph number and the words "or indemnification under Article 5" are deleted. 2. Paragraph 2 is deleted. Article 9 Article 7 of the 1971 Fund Convention is amended as follows: 1. In paragraphs 1, 3, 4 and 6 the seven references to "the Liability Convention" are replaced by reference to "the 1992 Liability Convention". 2. In paragraph 1 the words "or indemnification under Article 5" are deleted. 3. In the first sentence of paragraph 3 the words "or indemnification" and "or 5" are deleted. 4. In the second sentence of paragraph 3 the words "or under Article 5, paragraph 1" are deleted. Article 10 In Article 8 of the 1971 Fund Convention the reference to the "Liability Convention" is replaced by a reference to "the 1992 Liability Convention". Article 11 Article 9 of the 1971 Fund Convention is amended as follows: 1. Paragraph 1 is replaced by the following text: 1. The Fund, shall in respect of any amount of compensation for pollution damage paid by the Fund in accordance with Article 4, paragraph 1, of this Convention, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor. 2. In paragraph 2 the words "or indemnification" are deleted. Article 12 Article 10 of the 1971 Fund Convention is amended as follows: The opening phrase of paragraph 1 is replaced by the following text: Annual contributions to the Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in Article 12, paragraphs 2(a) or (b), has received in total quantities exceeding 150,000 tons: Article 14 Article 12 of the 1971 Fund Convention is amended as follows: 1. In the opening phrase of paragraph 1 the words "for each person referred to in Article 10" are deleted. 2. In paragraph 1(i), subparagraphs (b) and (c), the words "or 5" are deleted and the words "15 million francs" are replaced by the words "four million units of account". 3. Subparagraph 1(ii)(b) is deleted. 4. In paragraph 1(ii), subparagraph (c) becomes (b) and subparagraph (d) becomes (c). 5. The opening phrase in paragraph 2 is replaced by the following text: The Assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director shall, in respect of each Contracting State, calculate for each person referred to in Article 10 the amount of his annual contribution: 6. Paragraph 4 is replaced by the following text: 4. The annual contribution shall be due on the date to be laid down in the Internal Regulations of the Fund. The Assembly may decide on a different date of payment. 7. Paragraph 5 is replaced by the following text: 5. The Assembly may decide, under conditions to be laid down in the Financial Regulation of the Fund, to make transfers between funds received in accordance with Article 12.2(a) and funds received in accordance with Article 12.2(b). 8. Paragraph 6 is deleted. Article 15 Article 13 of the 1971 Fund Convention is amended as follows: 1. Paragraph 1 is replaced by the following text: 1. The amount of any contribution due under Article 12 and which is in arrear shall bear interest at a rate which shall be determined in accordance with the Internal Regulations of the Fund, provided that different rates may be fixed for different circumstances. 2. In paragraph 3 the words "Articles 10 and 11" are replaced by the words "Articles 10 and 12" and the words "for a period exceeding three months" are deleted. Resolution LEG.2(82) (adopted on 18 October 2000) Adoption of amendments of the limits of compensation in the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 The Legal Committee at its eighty-second session: Recalling Article 33(b) of the Convention on the International Maritime Organization (hereinafter referred to as the "IMO Convention") concerning the functions of the Committee, Mindful of Article 36 of the IMO Convention concerning rules governing the procedures to be followed when exercising the functions conferred on it by or under any international convention or instrument, Recalling further Article 33 of the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (hereinafter referred to as the "1992 Fund Protocol") concerning the procedures for amending the limits of the amounts of compensation set out in Article 6(3) of the 1992 Fund Protocol, Having considered amendments to the limits of the amounts of compensation proposed and circulated in accordance with the provisions of Article 33(1) and (2) of the 1992 Fund Protocol, 1. Adopts, in accordance with Article 33(4) of the 1992 Fund Protocol, amendments to the limits of the amounts of compensation set out in Article 6(3) of the 1992 Fund Protocol, as set out in the Annex to this resolution; 2. Determines, in accordance with Article 33(7) of the 1992 Fund Protocol, that these amendments shall be deemed to have been accepted on 1 May 2002 unless, prior to that date, not less than one quarter of the States that were Contracting States on the date of the adoption of these amendments (being 18 October 2000) have communicated to the Organization that they do not accept these amendments; 3. Further determines that, in accordance with Article 33(8) of the 1992 Fund Protocol, these amendments, deemed to have been accepted in accordance with paragraph 2 above, shall enter into force on 1 November 2003; 4. Requests the Secretary-General, in accordance with Articles 33(7) and 38(2)(vi) of the 1992 Fund Protocol, to transmit certified copies of the present resolution and the amendments contained in the Annex thereto to all States which have signed or acceded to the 1992 Fund Protocol; and 5. Further requests the Secretary-General to transmit copies of the present resolution and its Annex to the Members of the Organization which have not signed or acceded to the 1992 Fund Protocol. Annex Amendments of the limits of compensation in the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 Article 6(3) of the 1992 Fund Protocol is amended as follows: the reference in paragraph 4(a) to "135 million units of account" shall read "203,000,000 units of account"; the reference in paragraph 4(b) to "135 million units of account" shall read "203,000,000 units of account"; and the reference in paragraph 4(c) to "200 million units of account" shall read "300,740,000 units of account". Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 The Contracting States to the present Protocol, Bearing in mind the International Convention on Civil Liability for Oil Pollution Damage, 1992 (hereinafter "the 1992 Liability Convention"), Having considered the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (hereinafter "the 1992 Fund Convention"), Affirming the importance of maintaining the viability of the international oil pollution liability and compensation system, Noting that the maximum compensation afforded by the 1992 Fund Convention might be insufficient to meet compensation needs in certain circumstances in some Contracting States to that Convention, Recognizing that a number of Contracting States to the 1992 Liability and 1992 Fund Conventions consider it necessary as a matter of urgency to make available additional funds for compensation through the creation of a supplementary scheme to which States may accede if they so wish, Believing that the supplementary scheme should seek to ensure that victims of oil pollution damage are compensated in full for their loss or damage and should also alleviate the difficulties faced by victims in cases where there is a risk that the amount of compensation available under the 1992 Liability and 1992 Fund Conventions will be insufficient to pay established claims in full and that as a consequence the International Oil Pollution Compensation Fund, 1992, has decided provisionally that it will pay only a proportion of any established claim, Considering that accession to the supplementary scheme will be open only to Contracting States to the 1992 Fund Convention, Have agreed as follows: General provisions Article 1 For the purposes of this Protocol: 1. "1992 Liability Convention" means the International Convention on Civil Liability for Oil Pollution Damage, 1992; 2. "1992 Fund Convention" means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992; 3. "1992 Fund" means the International Oil Pollution Compensation Fund, 1992, established under the 1992 Fund Convention; 4. "Contracting State" means a Contracting State to this Protocol, unless stated otherwise; 5. When provisions of the 1992 Fund Convention are incorporated by reference into this Protocol, "Fund" in that Convention means "Supplementary Fund", unless stated otherwise; 6. "Ship", "Person", "Owner", "Oil", "Pollution Damage", "Preventive Measures" and "Incident" have the same meaning as in Article I of the 1992 Liability Convention; 7. "Contributing Oil", "Unit of Account", "Ton", "Guarantor" and "Terminal installation" have the same meaning as in Article 1 of the 1992 Fund Convention, unless stated otherwise; 8. "Established claim" means a claim which has been recognised by the 1992 Fund or been accepted as admissible by decision of a competent court binding upon the 1992 Fund not subject to ordinary forms of review and which would have been fully compensated if the limit set out in Article 4(4), of the 1992 Fund Convention had not been applied to that incident; 9. "Assembly" means the Assembly of the International Oil Pollution Compensation Supplementary Fund, 2003, unless otherwise indicated; 10. "Organization" means the International Maritime Organization; 11. "Secretary-General" means the Secretary-General of the Organization. Article 2 1. An International Supplementary Fund for compensation for pollution damage, to be named "The International Oil Pollution Compensation Supplementary Fund, 2003" (hereinafter "the Supplementary Fund"), is hereby established. 2. The Supplementary Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognise the Director of the Supplementary Fund as the legal representative of the Supplementary Fund. Article 3 This Protocol 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 the baselines from which the breadth of its territorial sea is measured; (b) to preventive measures, wherever taken, to prevent or minimize such damage. Supplementary compensation Article 4 1. The Supplementary Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for an established claim for such damage under the terms of the 1992 Fund Convention, because the total damage exceeds, or there is a risk that it will exceed, the applicable limit of compensation laid down in Article 4(4) of the 1992 Fund Convention in respect of any one incident. 2. (a) The aggregate amount of compensation payable by the Supplementary Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount together with the amount of compensation actually paid under the 1992 Liability Convention and the 1992 Fund Convention within the scope of application of this Protocol shall not exceed 750 million units of account. (b) The amount of 750 million units of account mentioned in paragraph 2(a) 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 determined by the Assembly of the 1992 Fund for conversion of the maximum amount payable under the 1992 Liability and 1992 Fund Conventions. 3. Where the amount of established claims against the Supplementary Fund exceeds the aggregate amount of compensation payable under paragraph 2, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Protocol shall be the same for all claimants. 4. The Supplementary Fund shall pay compensation in respect of established claims as defined in Article 1(8), and only in respect of such claims. Article 5 The Supplementary Fund shall pay compensation when the Assembly of the 1992 Fund has considered that the total amount of the established claims exceeds, or there is a risk that the total amount of established claims will exceed the aggregate amount of compensation available under Article 4(4) of the 1992 Fund Convention and that as a consequence the Assembly of the 1992 Fund has decided provisionally or finally that payments will only be made for a proportion of any established claim. The Assembly of the Supplementary Fund shall then decide whether and to what extent the Supplementary Fund shall pay the proportion of any established claim not paid under the 1992 Liability Convention and the 1992 Fund Convention. Article 6 1. Subject to Article 15(2) and (3), rights to compensation against the Supplementary Fund shall be extinguished only if they are extinguished against the 1992 Fund under Article 6 of the 1992 Fund Convention. 2. A claim made against the 1992 Fund shall be regarded as a claim made by the same claimant against the Supplementary Fund. Article 7 1. The provisions of Article 7(1), (2), (4), (5) and (6) of the 1992 Fund Convention shall apply to actions for compensation brought against the Supplementary Fund in accordance with Article 4(1) of this Protocol. 2. Where an action for compensation for pollution damage has been brought before a court competent under Article IX of the 1992 Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Supplementary Fund for compensation under the provisions of Article 4 of this Protocol in respect of the same damage. However, where an action for compensation for pollution damage under the 1992 Liability Convention has been brought before a court in a Contracting State to the 1992 Liability Convention but not to this Protocol, any action against the Supplementary Fund under Article 4 of this Protocol shall at the option of the claimant be brought either before a court of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State to this Protocol competent under Article IX of the 1992 Liability Convention. 3. Notwithstanding paragraph 1, where an action for compensation for pollution damage against the 1992 Fund has been brought before a court in a Contracting State to the 1992 Fund Convention but not to this Protocol, any related action against the Supplementary Fund shall, at the option of the claimant, be brought either before a court of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State competent under paragraph 1. Article 8 1. Subject to any decision concerning the distribution referred to in Article 4(3) of this Protocol, any judgment given against the Supplementary Fund by a court having jurisdiction in accordance with Article 7 of this Protocol, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in Article X of the 1992 Liability Convention. 2. A Contracting State may apply other rules for the recognition and enforcement of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent as under paragraph 1. Article 9 1. The Supplementary Fund shall, in respect of any amount of compensation for pollution damage paid by the Supplementary Fund in accordance with Article 4(1), of this Protocol, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor. 2. The Supplementary Fund shall acquire by subrogation the rights that the person compensated by it may enjoy under the 1992 Fund Convention against the 1992 Fund. 3. Nothing in this Protocol shall prejudice any right of recourse or subrogation of the Supplementary Fund against persons other than those referred to in the preceding paragraphs. In any event the right of the Supplementary Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation has been paid. 4. Without prejudice to any other rights of subrogation or recourse against the Supplementary Fund which may exist, a Contracting State or agency thereof which has paid compensation for pollution damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Protocol. Contributions Article 10 1. Annual contributions to the Supplementary Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in Article 11(2)(a) or (b), has received in total quantities exceeding 150,000 tons: (a) in the ports or terminal installations in the territory of that State contributing oil carried by sea to such ports or terminal installations; and (b) in any installations situated in the territory of that Contracting State contributing oil which has been carried by sea and discharged in a port or terminal installation of a non- Contracting State, provided that contributing oil shall only be taken into account by virtue of this subparagraph on first receipt in a Contracting State after its discharge in that nonContracting State. 2. The provisions of Article 10(2), of the 1992 Fund Convention shall apply in respect of the obligation to pay contributions to the Supplementary Fund. Article 11 1. With a view to assessing the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the Assembly shall for each calendar year make an estimate in the form of a budget of: (i) Expenditure (a) costs and expenses of the administration of the Supplementary Fund in the relevant year and any deficit from operations in preceding years; (b) payments to be made by the Supplementary Fund in the relevant year for the satisfaction of claims against the Supplementary Fund due under Article 4, including repayments on loans previously taken by the Supplementary Fund for the satisfaction of such claims; (ii) Income (a) surplus funds from operations in preceding years, including any interest; (b) annual contributions, if required to balance the budget; (c) any other income. 2. The Assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director of the Supplementary Fund shall, in respect of each Contracting State, calculate for each person referred to in Article 10, the amount of that person's annual contribution: (a) insofar as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(a) on the basis of a fixed sum for each ton of contributing oil received in the relevant State by such person during the preceding calendar year; and (b) insofar as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(b) on the basis of a fixed sum for each ton of contributing oil received by such person during the calendar year preceding that in which the incident in question occurred, provided that State was a Contracting State to this Protocol at the date of the incident. 3. The sums referred to in paragraph 2 shall be arrived at by dividing the relevant total amount of contributions required by the total amount of contributing oil received in all Contracting States in the relevant year. 4. The annual contribution shall be due on the date to be laid down in the Internal Regulations of the Supplementary Fund. The Assembly may decide on a different date of payment. 5. The Assembly may decide, under conditions to be laid down in the Financial Regulations of the Supplementary Fund, to make transfers between funds received in accordance with paragraph 2(a) and funds received in accordance with paragraph 2(b). Article 12 1. The provisions of Article 13 of the 1992 Fund Convention shall apply to contributions to the Supplementary Fund. 2. A Contracting State itself may assume the obligation to pay contributions to the Supplementary Fund in accordance with the procedure set out in Article 14 of the 1992 Fund Convention. Article 15 1. If in a Contracting State there is no person meeting the conditions of Article 10, that Contracting State shall for the purposes of this Protocol inform the Director of the Supplementary Fund thereof. 2. No compensation shall be paid by the Supplementary Fund for pollution damage in the territory, territorial sea or exclusive economic zone or area determined in accordance with Article 3(a)(ii), of this Protocol, of a Contracting State in respect of a given incident or for preventive measures, wherever taken, to prevent or minimize such damage, until the obligations to communicate to the Director of the Supplementary Fund according to Article 13(1) and paragraph 1 of this Article have been complied with in respect of that Contracting State for all years prior to the occurrence of that incident. The Assembly shall determine in the Internal Regulations the circumstances under which a Contracting State shall be considered as having failed to comply with its obligations. 3. Where compensation has been denied temporarily in accordance with paragraph 2, compensation shall be denied permanently in respect of that incident if the obligations to communicate to the Director of the Supplementary Fund under Article 13(1) and paragraph 1 of this Article, have not been complied with within one year after the Director of the Supplementary Fund has notified the Contracting State of its failure to report. 4. Any payments of contributions due to the Supplementary Fund shall be set off against compensation due to the debtor, or the debtor's agents. Transitional provisions Article 18 1. Subject to paragraph 4, the aggregate amount of the annual contributions payable in respect of contributing oil received in a single Contracting State during a calendar year shall not exceed 20% of the total amount of annual contributions pursuant to this Protocol in respect of that calendar year. 2. If the application of the provisions in Article 11(2) and (3) would result in the aggregate amount of the contributions payable by contributors in a single Contracting State in respect of a given calendar year exceeding 20% of the total annual contributions, the contributions payable by all contributors in that State shall be reduced pro rata so that their aggregate contributions equal 20% of the total annual contributions to the Supplementary Fund in respect of that year. 3. If the contributions payable by persons in a given Contracting State shall be reduced pursuant to paragraph 2, the contributions payable by persons in all other Contracting States shall be increased pro rata so as to ensure that the total amount of contributions payable by all persons liable to contribute to the Supplementary Fund in respect of the calendar year in question will reac …