MERCHANT SHIPPING (LIABILITY FOR BUNKER OIL POLLUTION DAMAGE) REGULATIONS

MERCHANT SHIPPING

[ S.234.46

(LIABILITY FOR BUNKER OIL POLLUTION DAMAGE)

SUBSIDIARY LEGISLATION 234.46

MERCHANT SHIPPING (LIABILITY FOR BUNKER

OIL POLLUTION DAMAGE) REGULATIONS

12th February, 2009

LEGAL NOTICE 40 of 2009.

The title of these regulations is the Merchant Shipping

(Liability for Bunker Oil Pollution Damage) Regulations.

(1)

In these regulations unless the context otherwise

requires -

''the Act'' means the Merchant Shipping Act;

''Bunkers Convention'' means the International Convention on

Civil Liability for Bunker Oil Pollution Damage signed in London

on 23rd March, 2001, including any amendment or Protocol related

thereto as may from time to time be ratified, acceded to or accepted

by the Government of Malta and other instruments, standards and

specifications of a mandatory nature related thereto adopted or

developed by the International Maritime Organization (IMO);

''the Minister'' means the Minister responsible for shipping and

includes any public officer, or an 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 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.

(2) Unless otherwise defined in the Act or in these regulations,

or unless the context so requires, words and expressions used in

these regulations shall have the same meaning assigned to them in

the Bunkers Convention.

(3) Any reference in these regulations to an international

convention or its related protocol or code shall include reference to

any amendment to such convention, protocol or code accepted by

the Government of Malta.

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

the Bunkers Convention as may from time to time be amended and

as it is in force, shall, unless otherwise provided in these

regulations and notwithstanding the provisions of any other law,

form part of and be enforceable as part of the Law of Malta and

shall apply to all Maltese ships, wherever they may be and to all

other ships while they are in Maltese waters as determined by the

said Convention.

(2) Reference in the Bunkers Convention and in these

regulations to ''the Court'' shall be read and construed as reference

MERCHANT SHIPPING

(LIABILITY FOR BUNKER OIL POLLUTION DAMAGE)

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 preventive

measures have been taken to prevent or minimize such damage in

that area, action for compensation under the provisions of the

Bunkers 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 the 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 these

regulations shall also apply to such exclusive economic zone or

such similar area as may be established in such Order.

(4) No claim for compensation for damage under these

regulations 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 to the ship;

(c) any person performing salvage operations with the

consent or on the instructions of the shipowner or on

the instructions of a competent person so authorized

by the Minister;

(d) any person taking measures to prevent or minimize the

effects of oil pollution;

(e) the servants or agents of persons mentioned in

paragraphs (c) and (d)

Provided that the damage did not result from their

personal act or omission, committed with the intent to

cause damage, or recklessly and with knowledge that

such damage would probably result.

(5) The appropriate authority for the purposes of issuing the

certificate attesting that insurance or other financial security is in

force, as referred to in Article 7(2) of the Bunkers Convention, in

respect of ships registered in Malta shall be the Registrar-General

who shall for the purposes of Article 7(7) of that Convention and

subject to the provisions of the same Convention and of these

regulations determine the conditions of issue and validity of such

certificate and, in respect of ships registered in a State not party to

the Bunkers 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

MERCHANT SHIPPING

[ S.234.46

(LIABILITY FOR BUNKER OIL POLLUTION DAMAGE)

Provided that a certificate referred to in sub-regulation (5)

in respect of a ship registered under the Malta flag, issued before

the entry into force of these regulations by another State Party to

the Bunkers Convention shall remain valid until such date stated on

the said certificate.

(6) The applicable limitation regime for the purposes of the

Bunkers Convention shall be that provided for in the Merchant

Shipping (Limitation of Liability for Maritime Claims)

Regulations.

Subject to the provisions of regulation 3(3), the Civil

Court, First Hall shall have jurisdiction to try and determine cases

and actions that, in accordance with these regulations, are to be

brought before it.

It shall be the duty of the registered owner of the ship and

of the master to ensure that the ship is in compliance with the

provisions of these regulations and such person, if in fault, shall be

liable to the penalties provided for in the Act, and if no such

penalty is provided, such person shall for each offence be liable to

a fine (multa) not exceeding 500 units.

(1) No Maltese ship to which Article 7 of the Bunkers

Convention applies shall proceed or attempt to proceed to sea

unless there is in force in respect of the ship the certificate referred

to in Article 7(2) to the Bunkers Convention.

(2) No foreign flagged ship to which Article 7 of the Bunkers

Convention applies shall proceed or attempt to proceed to ports,

installations or the territorial waters of Malta unless there is in

force in respect of the ship the certificate referred to in Article 7(2)

of the Bunkers Convention.

(3) The master of every ship to which sub-regulation (2)

applies shall, at the time when clearance for the ship is demanded,

produce to the officer from whom such clearance is demanded, the

certificate referred to in the said subregulation, and clearance shall

not be granted, until the said certificate is so produced.

(1) Judgments of foreign courts having jurisdiction under

Article 9 of the Bunkers Convention and adjudicating

compensation for bunker oil pollution damage are recognized and

declared enforceable in Malta, unless

(a) the judgment was fraudulently obtained;

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

fair opportunity to present his case.

(2) Judgments on matters covered by the Bunkers Convention

shall, when given by a court of a Member State to which Decision

2002/762/EC applies, other than a court of the Republic of

Denmark, be recognized and enforced in Malta according to the

relevant internal Community rules.