OIL POLLUTION (LIABILITY AND COMPENSATION) ACT

OIL POLLUTION (LIABILITY AND COMPENSATION)

CHAPTER 412

OIL POLLUTION (LIABILITY AND

COMPENSATION) ACT

To provide for Malta’s accession to the Protocol of 1992 amending the

International Convention on Civil Liability for Oil Pollution Damage,

1969 and the Protocol of 1992 amending the International Convention on

the Establishment of an International Fund for Compensation for Oil

Pollution Damage, 1971, and for the implementation of the provisions of

these Protocols.

17th December, 1999;

6th January, 2001

ACT XX of 1999 , as amended by Legal Notice 223 of 2003.

The title of this Act is Oil Pollution (Liability and

Compensation) Act.

Amended by

L.N. 223 of 2003.

(Articles 4 and 8)

Text of articles I to XI of the International Convention on Civil Liability for Oil

Pollution Damage, 1992

Article I

For the purposes of this Convention

1. "Ship" means any sea-going vessel and seaborne craft of any type

whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided

that a ship capable of carrying oil and other cargoes shall be regarded as a ship only

when it is actually carrying oil in bulk as cargo and during any voyage following

such carriage unless it is proved that it has no residues of such carriage of oil in bulk

aboard.

2. "Person" means any individual or partnership or any public or private body,

whether corporate or not, including a State or any of its constituent subdivisions.

3. "Owner" means the person or persons registered as the owner of the ship or,

in the absence of registration, the person or persons owning the ship. However in the

case of a ship owned by a State and operated by a company which in that State is

registered as the ship’s operator, "owner" shall mean such company.

4. "State of the ship’s registry" means in relation to registered ships the State

of registration of the ship, and in relation to unregistered ships the State whose flag

the ship is flying.

5. "Oil" means any persistent hydrocarbon mineral oil such as crude oil, fuel

oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or

in the bunkers of such a ship.

6. "Pollution damage" means

(a) loss or damage caused outside the ship by contamination resulting from

the escape or discharge of oil from the ship, wherever such escape or

discharge may occur, provided that compensation for impairment of the

environment other than loss of profit from such impairment shall be

limited to costs of reasonable measures of reinstatement actually

undertaken or to be undertaken;

(b) the costs of preventive measures and further loss or damage caused by

preventive measures.

7. "Preventive measures" means any reasonable measures taken by any person

after an incident has occurred to prevent or minimize pollution damage.

8. "Incident" means any occurrence, or series of occurrences having the same

origin, which causes pollution damage or creates a grave and imminent threat of

causing such damage.

(1)

In this Act, unless the context otherwise requires -

"Conventions" means the 1992 Fund Convention and the 1992

Liability Convention;

"Fund Convention" means the International Convention on the

Establishment of an International Fund for Compensation for Oil

Pollution Damage, adopted at Brussels on 18 December, 1971, as

amended by the Protocol thereto done in London on the 19

November, 1976;

"IOPC Fund" means The International Oil Pollution

Compensation Fund 1992 established under the provisions of the

1992 Fund Convention;

"Liability Convention" means the International Convention on

Civil Liability for Oil Pollution Damage adopted at Brussels on 29

November, 1969, as amended by the Protocol thereto done at

London on the 19 November, 1976;

"Minister" means the Minister responsible for shipping and

except for the power to make regulations granted to the Minister by

this Act, includes any public officer, or any officer of any body

corporate established by law, acting under his authority;

"Registrar-General" means the Registrar-General of Shipping

and Seamen appointed under article 363 of the Merchant Shipping

Act and includes any person acting under his authority;

"territorial waters of Malta" shall have the same meaning as is

assigned to the term in the Territorial Waters and Contiguous Zone

Act;

"1992 Fund Convention" means the Fund Convention as

amended by the 1992 Fund Protocol known as the International

Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage, 1992, and any

amendments thereto accepted by the Government of Malta;

OIL POLLUTION (LIABILITY AND COMPENSATION)

"1992 Fund Protocol" means the Protocol of 1992, adopted at

L o n d o n o n t h e 2 7 t h N o v e m b e r, 1 9 9 2 , a m e n d i n g t h e F u n d

Convention;

"1992 Liability Convention" means the Liability Convention as

amended by the 1992 Liability Protocol known as the International

Convention on Civil Liability for Oil Pollution Damage, 1992, and

any amendments thereto accepted by the Government of Malta;

"1992 Liability Protocol" means the Protocol of 1992, adopted at

London on the 27th November, 1992, amending the Liability

Convention.

(2) In this Act and in any regulations made thereunder, if there

is any conflict between the English and Maltese text, the English

text shall prevail.

(3) Unless the context otherwise requires, words and

expressions used in this Act shall have the same meaning assigned

to them in the Conventions.

Amended by

L.N. 223 of 2003.

(Articles 5 and 8)

Text of articles 1 to 4, 6 to 10 and 12 to 15 of the International Convention on the

Establishment of an International Fund for Compensation for Oil Pollution Damage,

1992. Article 1

For the purposes of this Convention

1. "1992 Liability Convention" means the International Convention on Civil

Liability for Oil Pollution Damage, 1992.

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.

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.

3. "Contributing Oil" means crude oil and fuel oil as defined in sub-paragraphs

(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" has the same meaning as in Article V, paragraph 9, of the

1992 Liability Convention.

5. "Ship’s tonnage" has the same meaning as in Article V, paragraph 10, of the

1992 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

1992 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.

OIL POLLUTION (LIABILITY AND COMPENSATION)

Article 2

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.

2. The 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 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 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.

Compensation

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 1992 Liability Convention,

(a) because no liability for the damage arises under the 1992 Liability

Convention;

(b) because the owner liable for the damage under the 1992 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 1992 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 1992

Liability Convention as limited pursuant to Article V, paragraph 1, of

OIL POLLUTION (LIABILITY AND COMPENSATION)

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 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 obligation to pay compensation to such

person. The Fund shall in any event be exonerated to the extent that the shipowner

may have been 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.

4. (a) Except as otherwise provided in sub-paragraphs (b) and (c) of this

paragraph, the aggregate amount of compensation payable by the Fund

under this Article shall in respect of any one incident be limited, so that

the total sum of that amount and the amount of compensation actually

paid under the 1992 Liability Convention for pollution damage within

the scope of application of this Convention as defined in Article 3 shall

not exceed 203,000,000 units of account.

(b) Except as otherwise provided in sub-paragraph (c), the aggregate

amount of compensation payable by the Fund under this Article for

pollution damage resulting from a natural phenomenon of an

exceptional, inevitable and irresistible character shall not exceed

203,000,000 units of account.

(c) The maximum amount of compensation referred to in sub-paragraphs

(a) and (b) shall be 300,740,000 units of account with respect to any

incident occurring during any period when there are three Parties to this

Convention in respect of which the combined relevant quantity of

contributing oil received by persons in the territories of such Parties,

during the preceding calendar year, equalled or exceeded 600 million

tons.

(d) Interest accrued on a fund constituted in accordance with Article V,

paragraph 3, of the 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 the decision of the Assembly of

the Fund as to the first date of payment of compensation.

OIL POLLUTION (LIABILITY AND COMPENSATION)

5. Where the amount of established claims against the Fund exceeds the

aggregate amount of compensation payable under paragraph 4, the amount available

shall be distributed in such a manner that the proportion between any established

claim and the amount of compensation actually recovered by the claimant under this

Convention shall be the same for all claimants.

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.

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

Rights to compensation under Article 4 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.

Article 7

1. Subject to the subsequent provisions of this Article, any action against the

Fund for compensation under Article 4 of this Convention shall be brought only

before a court competent under Article IX of the 1992 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 1992 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 under the provisions

of Article 4 of this Convention 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 State Party to the 1992 Liability Convention but

not to this Convention, any action against the Fund under Article 4 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 1992 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

OIL POLLUTION (LIABILITY AND COMPENSATION)

of the 1992 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 judgement 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 1992 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 a manner that the Fund has in fact been in a position effectively to

intervene as a party to the proceedings, any judgement rendered by the court in such

proceedings shall, after it has become final and enforceable in the State where the

judgement was given, become binding upon the Fund in the sense that the facts and

findings in that judgement 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 judgement 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 1992 Liability Convention.

Article 9

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. 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 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. 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,

paragraph 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

OIL POLLUTION (LIABILITY AND COMPENSATION)

(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 sub-

paragraph on first receipt in a Contracting State after its discharge in

that non-Contracting 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 person" means any subsidiary or commonly controlled

entity. The question whether a person comes within this definition shall

be determined by the national law of the State concerned.

Article 12

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 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, 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 four million units of

account;

(c) payments to be made by the Fund in the relevant year for the

satisfaction of claims against the Fund due under Article 4, 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 four million units of account;

(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 shall, in respect of each Contracting State,

calculate for each person referred to in Article 10 the amount of his annual

contribution

(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

OIL POLLUTION (LIABILITY AND COMPENSATION)

(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 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.

5. The Assembly may decide, under conditions to be laid down in the Financial

Regulations 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).

Article 13

1. The amount of any contribution due under Article 12 and which is in arrears

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. 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 12 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, the Director shall take

all appropriate action 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.

Article 14

1. Each Contracting State may at the time when it deposits its instrument of

ratification or accession or at any time thereafter declare that it assumes itself

obligations that are incumbent under this Convention on any person who is liable to

contribute to the Fund in accordance with Article 10, paragraph 1, in respect of oil

received within the territory of that State. Such declaration shall be made in writing

and shall specify which obligations are assumed.

2. Where a declaration under paragraph 1 is made prior to the entry into force

of this Convention in accordance with Article 40, it shall be deposited with the

Secretary-General of the Organization who shall after the entry into force of the

Convention communicate the declaration to the Director.

3. A declaration under paragraph 1 which is made after the entry into force of

this Convention shall be deposited with the Director.

OIL POLLUTION (LIABILITY AND COMPENSATION)

4. A declaration made in accordance with this Article may be withdrawn by the

relevant State giving notice thereof in writing to the Director. Such notification shall

take effect three months after the Director’s receipt thereof.

5. Any State which is bound by a declaration made under this Article shall, in

any proceedings brought against it before a competent court in respect of any

obligation specified in the declaration, waive any immunity that it would otherwise

be entitled to invoke.

Article 15

1. Each Contracting State shall ensure that any person who receives

contributing oil within its territory in such quantities that he is liable to contribute to

the Fund appears on a list to be established and kept up to date by the Director in

accordance with the subsequent provisions of this Article.

2. For the purposes set out in paragraph 1, each Contracting State shall

communicate, at a time and in the manner to be prescribed in the Internal

Regulations, to the Director the name and address of any person who in respect of

that State is liable to contribute to the Fund pursuant to Article 10, as well as data on

the relevant quantities of contributing oil received by any such person during the

preceding calendar year.

3. For the purposes of ascertaining who are, at any given time, the persons

liable to contribute to the Fund in accordance with Article 10, paragraph 1, and of

establishing, where applicable, the quantities of oil to be taken into account for any

such person when determining the amount of his contribution, the list shall be prima

facie evidence of the facts stated therein.

4. Where a Contracting State does not fulfil its obligations to submit to the

Director the communication referred to in paragraph 2 and this results in a financial

loss for the Fund, that Contracting State shall be liable to compensate the Fund for

such loss. The Assembly shall, on the recommendation of the Director, decide

whether such compensation shall be payable by that Contracting State.

For the purposes of any law thereto applicable the

Government of Malta is hereby authorised to accede to the 1992

Fund Protocol and the 1992 Liability Protocol and to denounce the

Fund Convention and the Liability Convention thus becoming a

party to t he 1992 Fund Convention and the 1992 Liability

Convention.

(1) Subject to the provisions of sub-articles (2) to (5) of

this article and notwithstanding the provisions of any other law,

those provisions of the 1992 Liability Convention, contained in the

First Schedule to this Act, shall form part of and be enforceable as

part of the Law of Malta.

(2) Where any action is being brought in Malta in terms of the

provisions of the 1992 Liability Convention any reference in that

convention to "the Court", or to "the Court or other competent

authority", shall in each case be read and construed as reference to

the Civil Court, First Hall.

(3) Where pollution damage, resulting from an incident, has

been sustained in Malta, including the territorial waters of Malta

and any exclusive economic zone of Malta as may be established in

accordance with international law or similar area determined by

Malta in accordance with international law, including the waters

e n c l o s e d i n M a l t a ’s c o n t i g u o u s z o n e c l a i m a n d t h e w a t e r s

superjacent to Malta’s continental shelf claim, or if measures have

been taken to prevent or minimise such damage in that area, action

for compensation under the provisions of the 1992 Liability

Convention shall be brought in Malta before the Civil Court, First

Hall, by presenting a claim before such Court. Such a claim shall be

instituted in accordance with subtitle III of Title VIII of Part I of

Book Second of the Code of Organization and Civil Procedure

Provided that where any such exclusive economic zone or

any such similar area has been established by Malta, the Minister

shall by Order in the Gazette prescribe that the provisions of this

Act shall also apply to such exclusive economic zone or such

similar area as may be established in such Order.

OIL POLLUTION (LIABILITY AND COMPENSATION)

(4) The Civil Court, First Hall shall determine the distribution

of the limitation fund, and where such fund is insufficient to satisfy

the claims of those who are entitled to compensation, the amount of

compensation of each claimant shall be reduced pro rata.

(5) The appropriate authority for the purpose of issuing a

certificate of insurance referred to in paragraph 2 of article VII of

the 1992 Liability Convention, in respect of Maltese ships shall be

the Registrar-General who shall for the purpose of paragraph 6 of

Article VII of that convention and subject to the provisions of the

same convention and of any regulations made under the Act

determine the conditions of issue and validity of such certificate

and, in respect of ships flying the flag of a state not party to the

1992 Liability Convention shall be the said Registrar-General who

shall have such powers as aforesaid or the appropriate authority of

a state party to the convention in accordance with the provisions

thereof.

(1) Subject to the provisions of sub-articles (2) to (6) of

this article, those provisions of the 1992 Fund Convention,

contained in the Second Schedule to this Act, shall form part of and

be enforceable as part of the Law of Malta.

(2) Any person who in a calendar year has received

contributing oil so as to be liable to contribute to the IOPC Fund

pursuant to article 10 of the 1992 Fund Convention, shall, not later

than the 1st March of the following year, inform the Minister of the

quantity of such oil received by him.

(3) The Minister shall, at a time and in the manner prescribed

in the Internal Regulations of the IOPC Fund, communicate the

information mentioned in paragraph 2 of article 15 of the 1992

Fund Convention to the Director of the IOPC Fund.

(4)

(a) For the purposes of this sub-article "associated person"

means a company or other body corporate which in

either case is another company’s subsidiary, associate

or holding company, or is the manager of or managed

by, or otherwise controls or is controlled by that body

corporate or a subsidiary or associate of that body

corporate’s holding company - and associate of a body

corporate means a body corporate being the subsidiary

of the same holding company.

(b) Any person having received in a calendar year

contributing oil in ports or other installations in Malta

in the manner specified in sub-paragraphs (a) and (b)

of paragraph 1 of article 10 of the 1992 Fund

Convention in total quantities exceeding 150,000

tonnes shall pay contributions to the IOPC Fund in

accordance with articles 10, 12 and 13 of that

convention in the amount and by the date determined

by the IOPC Fund Assembly

Provided that, notwithstanding that the quantity

received in Malta in a calendar year by any such person

does not exceed 150,000 tonnes but when aggregated

with the quantity of contributing oil received in the

OIL POLLUTION (LIABILITY AND COMPENSATION)

same calendar year in Malta by any associated person

or persons exceeds 150,000 tonnes, such person shall

pay contributions in respect of the actual quantity

received by him.

(5) Where pollution damage resulting from an incident has

been sustained in Malta, including the territorial waters of Malta

and any area determined by an Order of the Minister made for the

purposes of the proviso to article 4(3) of this Act, or if measures

have been taken to prevent or minimise such damage in that area,

any action against the IOPC Fund for compensation under article 4

of the 1992 Fund Convention shall be brought in Malta before the

Civil Court, First Hall.

(6) The notification to the IOPC Fund under paragraph 6 of

article 7 of the 1992 Fund Convention shall be made by means of a

judicial act against the IOPC Fund and notified in the office of the

(7) The IOPC Fund shall be entitled to take action against

defaulting contributors before the Civil Court, First Hall.

Notwithstanding the provisions of any other law -

(a) the Civil Court, First Hall shall have jurisdiction to try

and determine cases and actions that in accordance

with this Act are to be brought before it;

(b) when a written pleading or other judicial act is to be

filed against the IOPC Fund, it shall be sufficient if in

such pleading or act there is designated the IOPC Fund

and it shall not be necessary in such pleading or act to

name the office or the name of the person for the time

being holding the office having, in accordance with the

constitution of the IOPC Fund, the judicial

representation of that Fund;

(c) the pleadings and acts referred to in paragraph (b) of

this article shall be notified at the office of the

Minister who shall within five working days transmit

the same to the headquarters of the IOPC Fund through

the Ministry responsible for foreign affairs;

(d) all judicial terms for the filing of any written pleadings

or other acts by the IOPC Fund shall be extended by

five working days and no such times may be abridged

to less than five working days.

(1) Without prejudice to the powers conferred by article 8

of this Act, the Minister may make regulations, rules or orders, or

give instructions, as are necessary for carrying into effect of the

provisions of the 1992 Liability Convention or the 1992 Fund

Convention.

(2) Any power conferred on the Minister by this Act to make

regulations, rules or orders or to give instructions, shall include

(a) to vary, alter, substitute or repeal any such regulation,

rule, order or instruction, without prejudice to the

OIL POLLUTION (LIABILITY AND COMPENSATION)

making of a new regulation, rule or order, or the giving

of a new instruction;

(b) to prescribe that any person liable to make any

contribution under this Act shall give such security for

the payment thereof as may be prescribed;

(c) to make such transitional or other incidental or

supplementary provision as may appear to the Minister

to be appropriate;

(d) to prescribe anything that may be or is to be prescribed

under this Act.

(3) Regulations, rules and orders made under any of the

provisions of this Act, may be made in the English language only.

(1) The Schedules to this Act shall be in the English

language only, and such text shall apply also to the Maltese text of

this Act.

(2) The Minister may by regulations amend, add to, vary,

revoke or substitute the Schedules to this Act to conform with any

amendments to the 1992 Liability Convention or the 1992 Fund

Convention, made in accordance with the said Conventions and

accepted by the Government of Malta and may by any such

regulations alter the reference in any article of this Act to any

provision of the 1992 Liability Convention or the 1992 Fund

Convention by a reference to such provision of the convention

which in accordance with any amendment thereto accepted by the

Government of Malta replaces such provision.

OIL POLLUTION (LIABILITY AND COMPENSATION)

"Organization" means the International Maritime Organization.

"1969 Liability Convention" means the International Convention on Civil

Liability for Oil Pollution Damage, 1969. For States Parties to the Protocol of 1976

to that Convention, the term shall be deemed to include the 1969 Liability

Convention as amended by that Protocol.

OIL POLLUTION (LIABILITY AND COMPENSATION)

Article II

This Convention shall apply exclusively

(a) to pollution damage caused

(i) in the territory, including the territorial sea, of a Contracting

State, and

(ii) in the exclusive economic zone of a Contracting State, established

in accordance with international law, or, if a Contracting State has

not established such a zone, in an area beyond and adjacent to the

territorial sea of that State determined by that State in accordance

with international law and extending not more than 200 nautical

miles from the baselines from which the breadth of its territorial

sea is measured;

(b) to preventive measures, wherever taken, to prevent or minimize such

damage.

Article III

1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship

at the time of an incident, or, where the incident consists of a series of occurrences,

at the time of the first such occurrence, shall be liable for any pollution damage

caused by the ship as a result of the incident.

2. No liability for pollution damage shall attach to the owner if he proves that

the damage

(a) resulted from an act of war, hostilities, civil war, insurrection or a

natural phenomenon of an exceptional, inevitable and irresistible

character, or

(b) was wholly caused by an act or omission done with intent to cause

damage by a third party, or

(c) was wholly caused by the negligence or other wrongful act of any

Government or other authority responsible for the maintenance of lights

or other navigational aids in the exercise of that function.

3. If the owner 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 owner may be

exonerated wholly or partially from his liability to such person.

4. No claim for compensation for pollution damage may be made against the

owner otherwise than in accordance with this Convention. Subject to paragraph 5 of

this Article, no claim for compensation for pollution damage under this Convention

or otherwise may be made against

(a) the servants or agents of the owner or the members of the crew;

(b) the pilot or any other person who, without being a member of the crew,

performs services for the ship;

(c) any charterer (howsoever described, including a bareboat charterer),

manager or operator of the ship;

(d) any person performing salvage operations with the consent of the owner

or on the instructions of a competent public authority;

(e) any person taking preventive measures;

(f) all servants or agents of persons mentioned in sub-paragraphs (c), (d)

OIL POLLUTION (LIABILITY AND COMPENSATION)

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.

5. Nothing in this Convention shall prejudice any right of recourse of the

owner against third parties.

Article IV

When an incident involving two or more ships occurs and pollution damage results

therefrom, the owners of all the ships concerned, unless exonerated under Article III,

shall be jointly and severally liable for all such damage which is not reasonably

separable.

Article V

1. The owner of a ship shall be entitled to limit his liability under this

Convention in respect of any one incident to an aggregate amount calculated as

follows

(a) 4,510,000 units of account for a ship not exceeding 5,000 units of

tonnage;

(b) for a ship with a tonnage in excess thereof, for each additional unit of

tonnage, 631 units of account in addition to the amount mentioned in

sub-paragraph (a);

provided, however, that this aggregate amount shall not in any event exceed

89,770,000 units of account.

2. The owner shall not be entitled to limit his liability under this Convention if

it is proved that the pollution damage resulted from his personal act or omission,

committed with the intent to cause such damage, or recklessly and with knowledge

that such damage would probably result.

3. For the purpose of availing himself of the benefit of limitation provided for

in paragraph 1 of this Article the owner shall constitute a fund for the total sum

representing the limit of his liability with the Court or other competent authority of

any one of the Contracting States in which action is brought under Article IX or, if

no action is brought, with any Court or other competent authority in any one of the

Contracting States in which an action can be brought under Article IX. The fund can

be constituted either by depositing the sum or by producing a bank guarantee or

other guarantee, acceptable under the legislation of the Contracting State where the

fund is constituted, and considered to be adequate by the Court or other competent

authority.

4. The fund shall be distributed among the claimants in proportion to the

amounts of their established claims.

5. If before the fund is distributed the owner or any of his servants or agents or

any person providing him insurance or other financial security has as a result of the

incident in question, paid compensation for pollution damage, such person shall, up

to the amount he has paid, acquire by subrogation the rights which the person so

compensated would have enjoyed under this Convention.

6. The right of subrogation provided for in paragraph 5 of this Article may also

be exercised by a person other than those mentioned therein in respect of any amount

of compensation for pollution damage which he may have paid but only to the extent

OIL POLLUTION (LIABILITY AND COMPENSATION)

that such subrogation is permitted under the applicable national law.

7. Where the owner or any other person establishes that he may be compelled

to pay at a later date in whole or in part any such amount of compensation, with

regard to which such person would have enjoyed a right of subrogation under

paragraphs 5 or 6 of this Article, had the compensation been paid before 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 his claim against the fund.

8. Claims in respect of expenses reasonably incurred or sacrifices reasonably

made by the owner voluntarily to prevent or minimize pollution damage shall rank

equally with other claims against the fund.

(a) The "unit of account" referred to in paragraph 1 of this Article is the

Special Drawing Right as defined by the International Monetary Fund.

The amounts mentioned in paragraph 1 shall be converted into national

currency on the basis of the value of that currency by reference to 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 Contracting State 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 Contracting State which is not a member of the International

Monetary Fund shall be calculated in a manner determined by that State.

(b) Nevertheless, a Contracting State which is not a member of the

International Monetary Fund and whose law does not permit the

application of the provisions of paragraph 9 (a) may, at the time of

ratification, acceptance, approval of or accession to this Convention or

at any time thereafter, declare that the unit of account referred to in

paragraph 9 (a) shall be equal to 15 gold francs. The gold franc referred

to in this paragraph corresponds to sixty-five and a half milligrammes of

gold of millesimal fineness nine hundred. The conversion of the gold

franc into the national currency shall be made according to the law of

the State concerned.

(c) The calculation mentioned in the last sentence of paragraph 9 (a) and the

conversion mentioned in paragraph 9 (b) shall be made in such manner

as to express in the national currency of the Contracting State as far as

possible the same real value for the amounts in paragraph 1 as would

result from the application of the first three sentences of paragraph 9

(a). Contracting States shall communicate to the depositary the manner

of calculation pursuant to paragraph 9 (a), or the result of the conversion

in paragraph 9 (b) as the case may be, when depositing an instrument of

ratification, acceptance, approval of or accession to this Convention and

whenever there is a change in either.

10. For the purpose of this Article the ship’s tonnage shall be the gross tonnage

calculated in accordance with the tonnage measurement regulations contained in

Annex I of the International Convention on Tonnage Measurement of Ships, 1969.

The insurer or other person providing financial security shall be entitled to

constitute a fund in accordance with this Article on the same conditions and having

the same effect as if it were constituted by the owner. Such a fund may be constituted

even if, under the provisions of paragraph 2, the owner is not entitled to limit his

OIL POLLUTION (LIABILITY AND COMPENSATION)

liability, but its constitution shall in that case not prejudice the rights of any claimant

against the owner.

Article VI

1. Where the owner, after an incident, has constituted a fund in accordance

with Article V, and is entitled to limit his liability,

(a) no person having a claim for pollution damage arising out of that

incident shall be entitled to exercise any right against any other assets of

the owner in respect of such claim;

(b) the Court or other competent authority of any Contracting State shall

order the release of any ship or other property belonging to the owner

which has been arrested in respect of a claim for pollution damage

arising out of that incident, and shall similarly release any bail or other

security furnished to avoid such arrest.

2. The foregoing shall, however, only apply if the claimant has access to the

Court administering the fund and the fund is actually available in respect of his

claim.

Article VII

1. The owner of a ship registered in a Contracting State and carrying more than

2,000 tons of oil in bulk as cargo shall be required to maintain insurance or other

financial security, such as the guarantee of a bank or a certificate delivered by an

international compensation fund, in the sums fixed by applying the limits of liability

prescribed in Article†V, paragraph 1 to cover his liability for pollution damage under

this Convention.

2. A certificate attesting that insurance or other financial security is in force in

accordance with the provisions of this Convention shall be issued to each ship after

the appropriate authority of a Contracting State has determined that the requirements

of paragraph 1 have been complied with. With respect to a ship registered in a

Contracting State such certificate shall be issued or certified by the appropriate

authority of the State of the ship’s registry; with respect to a ship not registered in a

Contracting State it may be issued or certified by the appropriate authority of any

Contracting State. This certificate shall be in the form of the annexed model and

shall contain the following particulars

(a)

name of ship and port of registration;

(b)

name and principal place of business of owner;

(c)

type of security;

(d)

name and principal place of business of insurer or other person giving

security and, where appropriate, place of business where the insurance

or security is established;

(e) period of validity of certificate which shall not be longer than the period

of validity of the insurance or other security.

3. The certificate shall be in the official language or languages of the issuing

State. If the language used is neither English nor French, the text shall include a

translation into one of these languages.

4. The certificate shall be carried on board the ship and a copy shall be

deposited with the authorities who keep the record of the ship’s registry or, if the

ship is not registered in a Contracting State, with the authorities of the State issuing

OIL POLLUTION (LIABILITY AND COMPENSATION)

or certifying the certificate.

5. An insurance or other financial security shall not satisfy the requirements of

this Article if it can cease, for reasons other than the expiry of the period of validity

of the insurance or security specified in the certificate under paragraph 2 of this

Article, before three months have elapsed from the date on which notice of its

termination is given to the authorities referred to in paragraph 4 of this Article,

unless the certificate has been surrendered to these authorities or a new certificate

has been issued within the said period. The foregoing provisions shall similarly

apply to any modification which results in the insurance or security no longer

satisfying the requirements of this Article.

6. The State of registry shall, subject to the provisions of this Article,

determine the conditions of issue and validity of the certificate.

7. Certificates issued or certified under the authority of a Contracting State in

accordance with paragraph 2 shall be accepted by other Contracting States for the

purposes of this Convention and shall be regarded by other Contracting States as

having the same force as certificates issued or certified by them even if issued or

certified in respect of a ship not registered in a Contracting State. A Contracting

State may at any time request consultation with the issuing or certifying State should

it believe that the insurer or guarantor named in the certificate is not financially

capable of meeting the obligations imposed by this Convention.

8. Any claim for compensation for pollution damage may be brought directly

against the insurer or other person providing financial security for the owner’s

liability for pollution damage. In such case the defendant may, even if the owner is

not entitled to limit his liability according to Article V, paragraph 2, avail himself of

the limits of liability prescribed in Article V, paragraph 1. He may further avail

himself of the defences (other than the bankruptcy or winding up of the owner)

which the owner himself would have been entitled to invoke. Furthermore, the

defendant may avail himself of the defence that the pollution damage resulted from

the wilful misconduct of the owner himself, but the defendant shall not avail himself

of any other defence which he might have been entitled to invoke in proceedings

brought by the owner against him. The defendant shall in any event have the right to

require the owner to be joined in the proceedings.

9. Any sums provided by insurance or by other financial security maintained in

accordance with paragraph 1 of this Article shall be available exclusively for the

satisfaction of claims under this Convention.

10. A Contracting State shall not permit a ship under its flag to which this

Article applies to trade unless a certificate has been issued under paragraph 2 or 12

of this Article.

11. Subject to the provisions of this Article, each Contracting State shall ensure,

under its national legislation, that insurance or other security to the extent specified

in paragraph 1 of this Article is in force in respect of any ship, wherever registered,

entering or leaving a port in its territory, or arriving at or leaving an off-shore

terminal in its territorial sea, if the ship actually carries more than 2,000 tons of oil

in bulk as cargo.

If insurance or other financial security is not maintained in respect of a ship

owned by a Contracting State, the provisions of this Article relating thereto shall not

be applicable to such ship, but the ship shall carry a certificate issued by the

appropriate authorities of the State of the ship’s registry stating that the ship is

owned by that State and that the ship’s liability is covered within the limits

prescribed by Article V, paragraph 1. Such a certificate shall follow as closely as

practicable the model prescribed by paragraph 2 of this Article.

OIL POLLUTION (LIABILITY AND COMPENSATION)

Article VIII

Rights of compensation under this Convention shall be extinguished unless

an action is brought thereunder 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. Where this incident consists of a

series of occurrences, the six years’ period shall run from the date of the first such

occurrence.

Article IX

1. Where an incident has caused pollution damage in the territory, including

the territorial sea or an area referred to in Article II, of one or more Contracting

States or preventive measures have been taken to prevent or minimize pollution

damage in such territory i ncluding t he territorial sea or area, a c t i o n s f o r

compensation may only be brought in the Courts of any such Contracting State or

States. Reasonable notice of any such action shall be given to the defendant.

2. Each Contracting State shall ensure that its Courts possess the necessary

jurisdiction to entertain such actions for compensation.

3. After the fund has been constituted in accordance with Article V the Courts

of the State in which the fund is constituted shall be exclusively competent to

determine all matters relating to the apportionment and distribution of the fund.

Article X

1. Any judgement given by a Court with jurisdiction in accordance with Article

IX which is enforceable in the State of origin where it is no longer subject to

ordinary forms of review, shall be recognized in any Contracting State, except

(a) where the judgement was obtained by fraud; or

(b) where the defendant was not given reasonable notice and a fair

opportunity to present his case.

2. A judgement recognized under paragraph 1 of this Article shall be

enforceable in each Contracting State as soon as the formalities required in that State

have been complied with. The formalities shall not permit the merits of the case to

be re-opened.

Article XI

1. The provisions of this Convention shall not apply to warships or other ships

owned or operated by a State and used, for the time being, only on government non-

commercial service.

2. With respect to ships owned by a Contracting State and used for commercial

purposes, each State shall be subject to suit in the jurisdictions set forth in Article IX

and shall waive all defences based on its status as a sovereign State.

OIL POLLUTION (LIABILITY AND COMPENSATION)

ANNEX

CERTIFICATE OF INSURANCE OR OTHER FINANCIAL

SECURITY IN RESPECT OF CIVIL LIABILITY FOR

OIL POLLUTION DAMAGE

Issued in accordance with the provisions of Article VII of the International

Convention on Civil Liability for Oil Pollution Damage, 1992

.

Name of ship

Distinctive

Port of registry

Name

and

number or letters

address of owner

This is to certify that there is in force in respect of the above-named ship a policy

of insurance or other financial security satisfying the requirements of Article VII of

the International Convention on Civil Liability for Oil Pollution Damage, 1992.

Type of Security ……………………………………....….........……………………

……………………………………………………..………………....………………

Duration of Security …………………………………………………………………

Name and Address of the Insurer(s) and/or Guarantor(s)

Name …………………………………..……………………………..………………

Address …………………………….....…………………………………...…………

This certificate is valid until ……….........……………………….…………

Issued or certified by the Government of …………………………………….

....……………………………………………………………………………………

(Full designation of the State)

At ......................................................

On ......................................................

(Place)

(Date)

Signature and Title of

issuing or certifying official

Explanatory Notes

1. If desired, the designation of the State may include a reference to the

competent public authority of the country where the certificate is issued.

2. If the total amount of security has been furnished by more than one source,

the amount of each of them should be indicated.

3. If security is furnished in several forms, these should be enumerated.

4. The entry "Duration of Security" must stipulate the date on which such

security takes effect.

OIL POLLUTION (LIABILITY AND COMPENSATION)