Oil Pollution of the Sea (Civil Liability and Compensation) Act, 1988

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Number 11 of 1988

OIL POLLUTION OF THE SEA (CIVIL LIABILITY AND COMPENSATION) ACT, 1988

ARRANGEMENT OF SECTIONS

PART I

Preliminary and General

PART II

Civil Liability for Pollution Damage

PART III

The International Oil Pollution Compensation Fund

PART IV

Recognition and Enforcement of Determinations in Convention Countries

PART V

Miscellaneous

Number 11 of 1988

OIL POLLUTION OF THE SEA (CIVIL LIABILITY AND COMPENSATION) ACT, 1988

AN ACT TO GIVE EFFECT TO THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1969, DONE AT BRUSSELS ON THE 29th DAY OF NOVEMBER, 1969; AND TO GIVE EFFECT TO THE PROTOCOL TO THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1969, DONE AT LONDON ON THE 19TH DAY OF NOVEMBER, 1976; AND TO GIVE EFFECT TO THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 1971, DONE AT BRUSSELS ON THE 18th DAY OF DECEMBER, 1971; AND TO GIVE EFFECT TO THE PROTOCOL TO THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 1971, DONE AT LONDON ON THE 19th DAY OF NOVEMBER, 1976; AND TO MAKE PROVISION FOR THE ASSESSMENT OF THE LIABILITY, AND COMPENSATION, FOR OIL POLLUTION DAMAGE; AND TO PROVIDE FOR MATTERS CONNECTED WITH THE MATTERS AFORESAID. [18th May, 1988]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary and General

Short title.

1.—This Act may be cited as the Oil Pollution of the Sea (Civil Liability and Compensation) Act, 1988.

Commencement.

2.—This Act shall come into operation on such day or days as the Minister shall by order appoint and different days may be appointed for different provisions.

Interpretation.

3.—(1) In this Act—

“aggregate amount of compensation” has the meaning specified in section 21 ; “Convention Country” means, as the context may require, a state (other than the State) which has been declared by order under section 4 to have accepted the Liability Convention or the Fund Convention or any Convention or Protocol amending or extending those Conventions and which has not been subsequently declared to have denounced either of those Conventions;

“the Court” means the High Court or a judge thereof;

“crude oil” has the meaning specified in section 19 ;

“discharge”, in relation to oil, means any discharge or escape of oil however caused;

“the Fund” has the meaning specified in section 19 ;

“fuel oil” has the meaning specified in section 19 ;

“the Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, done at Brussels on the 18th day of December, 1971, and includes any Convention or Protocol which has been ratified by the State and which amends or extends that Convention;

“guarantor” means any person providing insurance or other financial security to cover the liability of the owner of a ship under section 16 ;

“harbour authority” means—

(a) in the case of a harbour to which the Harbours Act, 1946 , applies, a harbour authority within the meaning of that Act; or

(b) in the case of a harbour under the control of the Commissioners of Public Works in Ireland, the Commissioners; or

(c) in the case of a fishery harbour centre to which the Fishery Harbour Centres Act, 1968 , applies, the Minister for the Marine; or

(d) in the case of a harbour under the control of a local authority, the local authority concerned; or

(e) in the case of a harbour under the management of Iarnród Éireann-Irish Rail, Iarnród Éireann-Irish Rail;

“harbour-master” means a person appointed by a harbour authority to be a harbour-master and includes a person appointed by a harbour authority to enforce the provisions of this Act;

“incident” means any occurrence, or series of occurrences having the same origin, which causes pollution damage;

“inspector” means—

(a) a person appointed to be an inspector by warrant of the Minister under section 31 , or

(b) a person appointed to be a surveyor of ships by warrant of the Minister under section 724 of the Merchant Shipping Act, 1894 , or

(c) a sea fisheries protection officer;

“the Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1969, done at Brussels on the 29th day of November, 1969, and includes any Convention or Protocol which has been ratified by the State and which amends or extends that Convention;

“master”, in relation to a ship, means the person having, for the time being, the command or charge of the ship;

“the Minister” means the Minister for the Marine;

“oil” (other than in Part III ) means any persistent oil including crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil whether carried on board a ship as cargo or in the bunkers of such a ship;

“owner”, in relation to a ship, means the person registered as its owner or, if no person is registered as owner of the ship, the person who owns the ship, and, in the case of a ship which is owned by a state and is operated by a person who in that state is registered as the ship's operator, “owner” means the person registered as such operator;

“prescribed” means prescribed by Regulations made by the Minister under this Act;

“pollution damage” means a loss or damage outside a ship carrying oil in bulk as cargo arising from the escape or discharge of oil from a ship, wherever such escape or discharge may occur, and includes the cost of measures taken to prevent or minimise pollution damage and any further loss or damage caused by such measures: and pollution damage within the State or within any Convention Country includes measures taken outside the State or, as the case may be, such Convention Country to prevent or minimise pollution damage within the State or within that Convention Country;

“sea fisheries protection officer” means a person declared by section 220 of the Fisheries (Consolidation) Act, 1959 , to be a sea fisheries protection officer;

“terminal installation” means any site in the State for the storage of oil in bulk which is capable of receiving oil from water borne transportation and includes any facility situated offshore and linked to such site;

“unit of account” means the unit of account of Special Drawing Rights of the International Monetary Fund.

(2) A reference in this Act to the State or to any other country includes the territorial seas and inland waters of the State or, as the case may be, the territorial seas and inland waters of that other country.

(3) A reference in this Act to a section is a reference to a section of this Act unless it is indicated that a reference to some other enactment is intended.

(4) A reference in this Act to a subsection or to a paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended.

(5) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended or adapted by any subsequent enactment.

Orders concerning Conventions.

4.—The Minister may, if he is satisfied that—

(a) any state (other than the State) has accepted or denounced the Liability Convention or the Fund Convention or any Convention or Protocol which has been ratified by the State and which amends or extends either of those Conventions, or

(b) that any such Convention extends, or has ceased to extend, to any territory,

by order so declare.

Laying of orders and Regulations before Houses of Oireachtas.

5.—Every order and Regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling it is passed by either such House within the next twenty-one days on which that House has sat after the instrument has been laid before it, the instrument shall be annulled accordingly but without prejudice to the validity of anything previously done under it.

Expenses of Minister.

6.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II

Civil Liability for Pollution Damage

Liability for pollution damage.

7.—(1) The following provisions shall, subject to section 8 , have effect in relation to pollution damage in the State which is caused by a ship carrying oil in bulk as cargo, whether such ship is within or without the State, that is to say—

(a) save as is otherwise provided by this Act, the owner of a ship at the time of the incident, or, where the incident consists of a series of occurrences, at the time of the first of the occurrences, which caused pollution damage, shall be liable for such damage;

(b) in any case where pollution damage results from the discharge of oil from two or more ships, the owner of each ship concerned shall, save as is otherwise provided by this Act, be jointly and severally liable for all such damage in so far as such damage is not reasonably severable;

(c) an owner of a ship shall not incur any liability for pollution damage otherwise than under this section;

(d) the servant or agent of the owner of a ship shall not be liable for pollution damage caused by that ship.

(2) Nothing in this Act shall operate so as to prejudice any right of action the owner of a ship may have in respect of an incident against any third party.

Exemption from liability for pollution damage.

8.—The owner of a ship which has caused pollution damage shall not be liable for such damage if he proves that the discharge of oil which caused 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 due wholly to anything done, or left undone, by any other person (other than a servant or agent of such owner) with intent to do damage; or

(c) was due wholly to the negligence or wrongful act of any government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.

Liability for pollution damage in State and another country.

9.—Where pollution damage is caused in the State and in one or more Convention Countries by a ship carrying oil in bulk as cargo, whether such ship is within or without the State, and the owner of such ship is liable for such damage pursuant to section 7 , and where the owner of such ship is liable for such damage under the law of any other Convention Country concerned, the liability for such damage shall be regarded, for the purposes of this Act and for the purposes of any legal proceedings under this Act in relation to such damage, as having been incurred in the State.

Limitation on liability for pollution damage.

10.—Where the owner of a ship is liable, pursuant to section 7 , for damage caused by a discharge of oil which occurred without his actual fault or privity, the following provisions shall apply—

(a) section 503 of the Merchant Shipping Act, 1894 , shall not apply in relation to any such liability;

(b) the owner concerned may limit his liability in accordance with this Act;

(c) where the owner concerned limits his liability in accordance with this Act, his liability for any one discharge shall not exceed fourteen million units of account, or one hundred and thirty-three units of account per ton for each ton of the ship's tonnage, whichever is the lesser;

(d) where a discharge of oil causes pollution damage both in the State and in the territory of any Convention Country, and the owner of the ship from which the oil was discharged has limited his liability in accordance with this Act, the limitation on the liability of the owner shall apply to the aggregate of his liability in the State and in any Convention Country concerned;

(e) where, in accordance with the law of a Convention Country, an owner has limited his liability, the court, tribunal or administrative authority in that Convention Country that has the jurisdiction or power to determine liability for pollution damage and to award compensation therefor shall be exclusively competent to determine all matters relating to the appointment and distribution of any monies lodged with the court, tribunal or administrative authority, as the case may be, in respect of the owner's liability.

Calculation of tonnage of ship.

11.—For the purposes of calculating the liability of the owner of a ship by reference to the tonnage of that ship, the tonnage shall be ascertained in the following manner:

(a) if the ship is registered in the State, or is a ship to which a direction under section 95 of the Mercantile Marine Act, 1955 , applies, the tonnage of that ship shall be reckoned to be its nett tonnage increased, in any case where a deduction has been made for engine room space in calculating that tonnage, by the amount of that deduction;

(b) if the ship is not so registered, or if no such direction applies to her, and it is possible to ascertain the registered tonnage of the ship as if it were a ship registered in the State, the tonnage of the ship shall be calculated, with any necessary modifications, in accordance with paragraph (a);

(c) if the ship is not so registered, or if no such direction applies to her, and she is a ship of a class or description in relation to which no provision is for the time being made by tonnage Regulations made under the said Mercantile Marine Act, the tonnage of the ship shall be reckoned to be forty per cent. of the weight (expressed in tons of two thousand two hundred and forty pounds) of oil which the ship is capable of carrying;

(d) if the tonnage of the ship cannot be calculated in accordance with the preceding paragraphs of this section, an inspector shall, if so directed by a Court, certify the tonnage which, in his opinion and having regard to the evidence specified in the direction, would be the tonnage of the ship if such tonnage were calculated in accordance with the preceding paragraphs of this section, and the tonnage as certified in the certificate of the inspector shall be reckoned to be the tonnage of that ship.

Determination by court of amount of liability.

12.—(1) Where the owner of a ship has, or is alleged to have, incurred liability for pollution damage pursuant to this Act, he may apply to the Court for an order limiting his liability for such damage to an amount calculated in accordance with the provisions of section 10 .

(2) If, on the hearing of an application under subsection (1), the Court finds that the applicant—

(a) has incurred liability for pollution damage,

and

(b) is entitled to limit his liability in accordance with this Act,

the Court, after determining the limit of the liability of such owner and after ordering the payment into court of any amount so determined, shall—

(i) determine the amounts (if any) that would, apart from the limitation of liability, be due in respect of such owner's liability to any person making a claim against such owner in respect of pollution damage, and

(ii) direct, subject to the subsequent provisions of this section, that the amount paid into court be distributed in proportion to their claim amongst such persons as the Court determines as having a claim against such owner in respect of pollution damage.

(3) Whenever the Court, on an application under subsection (1), orders the payment into court of any amount, the applicant shall comply with the order.

(4) A payment into Court of the amount of a limit of liability determined under this section shall be made in the currency of the State, and—

(a) for the purpose of converting such an amount from special drawing rights into the currency of the State one special drawing right shall be treated as equal to such a sum in the currency of the State as the International Monetary Fund have fixed as being the equivalent of one special drawing right for—

(i) the day on which the determination is made, or

(ii) if no sum has been so fixed for that day, the last day before that day for which a sum has been so fixed;

(b) a certificate given by or on behalf of the Central Bank of Ireland stating that—

(i) a particular sum in the currency of the State has been so fixed for the day on which the determination was made, or

(ii) no sum has been so fixed for that day and that a particular sum in the currency of the State has been so fixed for a day which is the last day for which a sum had been so fixed before the day on which the determination was made,

shall be evidence until the contrary is proved of those matters for the purposes of this Act;

(c) a document purporting to be such a certificate shall, in any proceedings, be received in evidence and, unless the contrary is proved, be deemed to be such a certificate.

(5) A claim shall not be admitted in any application under this section unless such claim is made within three years after the date on which the pollution damage occurred and not later than six years after the date of the incident which occasioned the damage:

Provided that, where the incident occasioning the damage consists of a series of occurrences, a claim shall not be admitted in any application under this section unless such claim is made within six years from the date of the first of those occurrences.

(6) Where any sum has been paid in, or towards, satisfaction of a claim in respect of pollution damage, or costs, to which the liability of the owner of a ship extends and such sum has been paid by—

(a) the owner of the ship or any guarantor,

(b) any person who has, or is alleged to have, incurred a liability, otherwise than by virtue of the provisions of this Act, for such damage or costs, and who is entitled by virtue of the Merchant Shipping Acts, 1894 to 1983, to limit his liability,

the person who paid that sum shall, to the extent of that sum, stand in the same position in any distribution made by the Court under subsection (2) as the person to whom such sum has been paid would stand if he were a party to the proceedings.

(7) Any person who has—

(a) incurred any liability in relation to pollution damage, and

(b) taken any reasonable steps, or expended money, to minimise or prevent the pollution damage in respect of which he is liable,

shall stand in the same position in any distribution made by the Court under subsection (2) as if he had a claim in the proceedings equal to the extent of any expenditure he has incurred in seeking to minimise or prevent the damage.

(8) The Court may, if it thinks fit, postpone the distribution of such part of the money to be distributed by it under subsection (2) as it deems appropriate to meet any claim—

(a) which might subsequently be established before a court in a Convention Country, or

(b) by the owner of the ship, or by any other person, that he might, at some later date, be compelled to pay compensation in respect of pollution damage which, if he had paid such compensation before the Court made a distribution under subsection (2), would have entitled such owner or other person to claim relief under subsection (6).

Power to stop or detain ship.

13.—(1) Without prejudice to any power to detain a ship contained in any enactment, an inspector may stop or detain a ship in any harbour in the State or wherever such ship may be in the State, or a harbour-master may detain a ship in his harbour, if it appears to the inspector or, as the case may be, the harbour-master, that the owner of the ship has incurred a liability under section 7 for pollution damage caused by any ship which he owns.

(2) Where the Court has determined that a person, who has incurred a liability for pollution damage under section 7 , is entitled to limit his liability, and such person has paid into court a sum of not less than the amount determined by the Court to be the limit of his liability, then—

(a) the Court shall, on application by or on behalf of the owner, order the release of any ship detained under this section in respect of any liability for pollution damage, or, as the case may be, the release of any security given to prevent, or obtain release from, such arrest, and

(b) a judgment or decree in relation to any claim for damages for pollution damage shall not be enforced, except in so far as such judgment or decree relates to costs:

Provided that the sum so paid into court, or such part thereof as corresponds to any claim for damages for pollution damage, is available for distribution to the claimant, or would have been so available if the claimant had complied with the provisions of section 12 .

(3) If a ship which has been detained pursuant to this section leaves, or attempts to leave, any harbour, terminal installation, offshore terminal or any other place in the State otherwise than in accordance with the provisions of this Act, the owner and the master of the ship shall each be guilty of an offence and the ship may, without prejudice to subsection (1), be detained, or be further detained, by an inspector anywhere in the State, or by a harbour-master in his harbour.

Application of section 13 of Act where liability arises in two or more countries.

14.—Where any person is liable under section 7 for pollution damage and, in relation to the same incident, is liable for pollution damage under the law of any other Convention Country, section 13 shall apply as if the references therein to sections 7 and 12 were a reference to the corresponding law of any other Convention Country concerned and the reference in the said section 13 to any sum paid into court were a reference to any sum secured under the corresponding law of such Convention Country.

Limitation on proceedings against third parties.

15.—Where, as a result of a discharge of oil from a ship, the owner of the ship is liable under section 7 for pollution damage and any other person incurs a liability, otherwise than under that section, for such damage, then if—

(a) the owner of the ship has been found in any proceedings under section 12 to be entitled to limit his liability to a particular amount and has paid into court a sum of not less than that amount, and

(b) such other person is entitled to limit his liability in connection with the ship by virtue of the Merchant Shipping Acts, 1894 to 1983,

proceedings shall not be taken against such other person in respect of his liability and, if any such proceedings were commenced before such owner paid the amount determined to be the limit of his liability into court, no further step shall be taken in the proceedings except in relation to costs.

Insurance of ships.

16.—(1) A ship registered in the State shall not carry in bulk a cargo of two thousand tonnes or more of oil unless there is in force in respect of the ship a contract of insurance, or other financial security, satisfying such requirements as may be prescribed.

(2) The Minister shall, on being satisfied by the owner of a ship that subsection (1) has been complied with, certify that the ship, in respect of such period as may be specified in the certificate, complies with the provisions of subsection (1).

(3) Subject to any exemption which may be granted by the Minister under section 44 , a ship (other than a ship registered in the State) shall not carry to or from a harbour, terminal installation or offshore terminal in the State a cargo of two thousand tonnes or more of oil in bulk unless—

(a) if the ship is registered in another Convention Country, there is carried on board the ship a certificate issued by or under the authority of the country in which the ship is registered showing that there is in force, in respect of the ship, a contract of insurance or other financial security which satisfies the requirements of the law of that country relating to the bulk carriage of oil, or

(b) if the ship is not registered in another Convention Country or the State, there is carried on board a certificate—

(i) issued by or under the authority of another Convention Country, or

(ii) which has been certified by the Minister that the ship satisfies such requirements as may be prescribed,

and showing that there is in force, in respect of the ship, a contract of insurance or other financial security which satisfies the law of that Convention Country concerned or the State, as the case may be, relating to the bulk carriage of oil.

(4) Any certificate required by this section in relation to the existence of a contract of insurance or other financial security in respect of a ship shall be carried on the ship and shall, on demand, be produced by the master of the ship to any inspector or harbourmaster.

(5) If a ship enters or leaves, or attempts to enter or leave, a harbour, or arrives at or leaves, or attempts to arrive at or leave, a terminal installation or offshore terminal in the State in contravention of this section, the owner and master of the ship shall each be guilty of an offence.

(6) If a ship fails to carry a certificate on board as required by this section or if the master of the ship fails to produce such certificate on demand by an inspector or a harbour-master, the master of the ship shall be guilty of an offence.

(7) If a ship attempts to leave a harbour, terminal installation or offshore terminal in the State in contravention of this section, the ship may be stopped and detained by an inspector or by the harbourmaster concerned.

(8) If a ship which has been detained by an inspector or, as the case may be, a harbour-master, pursuant to subsection (7) leaves or attempts to leave a harbour, terminal installation or offshore terminal otherwise than in accordance with the provisions of this Act, the master of the ship shall be guilty of an offence.

Liability of guarantor.

17.—(1) Where it is alleged that the owner of a ship is liable under section 7 for pollution damage as a result of any discharge of oil, and there is, at that time, in force in respect of that ship a contract of insurance or other security to which a certificate referred to in section 16 relates, proceedings to enforce a claim in respect of any damage caused by the discharge of oil may be brought against the guarantor.

(2) In any proceedings brought against a guarantor under this section, it shall be a defence, in addition to any defence affecting the liability of the owner, for the guarantor to establish that the discharge of oil in respect of which the proceedings are brought was due to the wilful misconduct of the owner of the ship.

(3) A guarantor may limit his liability under this section in like manner and to the same extent as an owner may limit his liability whether or not the discharge of oil in respect of which the proceedings are brought occurred without the actual fault or privity of the owner of the ship.

(4) Where both the owner of a ship and his guarantor each apply to the Court to limit his liability, any money paid into court in pursuance of either application shall be deemed to have been paid in also in pursuance of the other application.

Application of section 503 (1) (d) of Merchant Shipping Act, 1894.

18.—The provisions of section 503 (1) (d) of the Merchant Shipping Act, 1894 , shall be deemed to apply to any liability for the cost of preventing or mitigating pollution damage which is not covered by this Act.

PART III

The International Oil Pollution Compensation Fund

Returns of volume of oil carried by sea.

19.—(1) It shall be the duty of such persons as may be prescribed to submit annually to the Minister in such manner and on or before such date as may be prescribed a return of the volume of crude oil and fuel oil carried in each ship owned by such person and received in harbours, terminal installations and offshore terminals in the State.

(2) It shall be the duty of such persons as may be prescribed to pay each year into the International Oil Pollution Compensation Fund established under the Fund Convention (in this Act referred to as “the Fund”) in such manner and on or before such date as may be prescribed such sums as may be determined by the Assembly of the Fund Convention and certified by the Director of the Fund, any such sum to be determined in accordance with the returns submitted to the Minister under subsection (1) or, where the person concerned fails or neglects to submit his return on or before the prescribed date, to pay to the Fund such sum as may be calculated on an estimate of that person's returns for that year.

(3) If any person fails to pay to the Fund any sum due and payable by him under subsection (2), the Director of the Fund may recover from the person by whom it was payable in any court of competent jurisdiction, as a simple contract debt, such sum together with interest thereon from the date on which such sum became payable, such interest to be at such rate as may, from time to time, be determined by the Assembly of the Fund Convention.

(4) Any person who—

(a) fails to submit, within the prescribed time, to the Minister the returns specified in subsection (1), or

(b) submits a false return to the Minister, or

(c) fails to make the payment specified in subsection (2) to the Fund,

shall be guilty of an offence.

(5) In this Act—

“the Assembly of the Fund Convention” means the Assembly specified in Article 17 of the Fund Convention;

“crude oil” means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation and includes oils (known as “topped crudes”) from which some distillate fractions have been removed and oils (known as “spiked crudes” or “reconstituted crudes”) to which some distillate fractions have been added;

“fuel oil” means heavy distillages or residues from crude oil or blends of such oils intended for use as a fuel for the production of heat or power of a quality equivalent to, or heavier than, the American Society for Testing and Materials' specification for number four fuel oil (Designation D396/69).

Liability of Fund.

20.—(1) Subject to the provisions of this Act, the Fund shall be liable for pollution damage in the State caused by the discharge of oil from a ship carrying oil in bulk as cargo, whether such ship is within or without the State.

(2) The Fund shall be liable for pollution damage in any case where—

(a) a liability for damages does not arise under section 7 , or

(b) the person who suffered the damage has been unable, after taking all reasonable steps to pursue every legal remedy available to him, to obtain full satisfaction of the amount of compensation due to him under section 7 or 9 , or

(c) the owner of the ship concerned has limited his liability under this Act and the amount of compensation due exceeds such limit.

(3) Section 12 (7) applies to any distribution made pursuant to this section in the same manner as it applies to any distribution made under section 12 .

(4) The Fund shall not be liable for pollution damage if it is proved that the discharge of oil which caused 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 the State or by a Convention Country and used, at the time of the incident, only on government non-commercial service.

(5) The Fund may be wholly or partly relieved from liability for pollution damage if it is established that the discharge of oil which caused the pollution damage was due wholly or partly to—

(a) anything done or left undone by the person who suffered the pollution damage with intent to cause damage;

or

(b) the negligence of the person who suffered the pollution damage:

Provided that this subsection shall not apply to the cost of any reasonable measures taken after an incident has occurred to prevent or to minimise pollution damage.

(6) Subject to subsections (7) and (8), the Fund shall, in accordance with the provisions of this Act, indemnify the owner of a ship or his guarantor against his liability under section 7 or 10 .

(7) A liability shall not be imposed on the Fund under subsection (6) in any case where it is established that the pollution damage resulted from the wilful misconduct of the owner of the ship.

(8) The Fund may be wholly or partly relieved from its liability under subsection (6) if it is established that, because of the actual fault or privity of the owner of the ship, the pollution damage was wholly or partly occasioned by the non-compliance with the provisions of any Convention in relation to—

(a) Safety at Sea, or

(b) Pollution of the Sea,

which may be specified by, or in accordance with, the Fund Convention.

(9) In this Part “oil” means any persistent hydrocarbon mineral oil.

Extent of liability of Fund.

21.—(1) Where the Fund incurs a liability under this Act by reason of a discharge of oil which causes pollution damage in the territory of the State, the aggregate amount of compensation payable in respect of any one incident shall not exceed sixty million units of account.

(2) Where the Fund in accordance with section 20 (6) indemnifies the owner of a ship or his guarantor, any such indemnity shall not exceed that part of such owner's, or his guarantor's, liability under this Act which is—

(a) in excess of an amount equivalent to one hundred units of account for each ton of the ship's tonnage, or of a total amount of eight million, three hundred and thirty-three thousand units of account, whichever is the lesser, and

(b) not in excess of an amount equivalent to one hundred and thirty-three units of account for each ton of the said tonnage or a total amount of fourteen million units of account, whichever is the lesser.

(3) For the purposes of this section “the aggregate amount of compensation” means the maximum amount of compensation payable by the Fund by reason of pollution damage occasioned by any one incident whether such compensation is payable by reason of any one or more of the following, that is to say—

(a) the provisions of this Act,

(b) the provisions of any law in any Convention Country, or

(c) the provisions of the Fund Convention.

(4) Where the total of all claims against the Fund in any particular case exceeds the aggregate amount of compensation payable under subsection (1), the aggregate amount of compensation shall be distributed amongst all claimants for compensation in such a manner that the proportion between any claim and the amount of compensation recovered in respect of that claim shall be the same for all claimants.

(5) Subject to the provisions of subsection (2), the Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund under this Act, acquire by subrogation any rights that the person so compensated may enjoy under this Act against the owner of a ship or his guarantor.

Limitation on actions against Fund.

22.—(1) Subject to subsection (2), an action shall not be brought against the Fund—

(a) after three years from the date on which the pollution damage occurred unless an action for compensation has already been commenced under this Act against the owner of a ship or his guarantor and the Fund has been notified pursuant to rules of court of the action by any party thereto, or

(b) after six years from the date of the incident which caused the pollution damage: Provided that, where the incident causing the pollution damage consists of a series of occurrences, the period of six years specified in this paragraph shall be deemed to commence on the happening of the first of those occurrences.

(2) The right of the owner of a ship or his guarantor to seek indemnification from the Fund pursuant to section 20 (6) shall not, in any case, be extinguished before the expiry of a period of six months after the date on which such owner or his guarantor first became aware that a claim for damages under this Act was brought against him or them.

Pollution damage in two countries.

23.—Where an incident which results in the Fund being liable for compensation or indemnity under section 20 occasions pollution damage in the State and in one or more other Convention Countries, proceedings under this Act may be taken, and the incident may for all incidental purposes be treated as having occurred, in any place in the State.

Claims by State.

24.—(1) The State may be a party to any claim for compensation for pollution damage against the owner of a ship or his guarantor or against the Fund either under this Act or under the corresponding law in any Convention Country.

(2) Any claim brought on behalf of the State under subsection (1) of this section may be brought and prosecuted by the Minister.

(3) Any claim brought on behalf of the State under subsection (1) of this section may include a claim for any amount paid by the State to any person who has suffered pollution damage in the State as a result of an incident in respect of which the State is making a claim.

PART IV

Recognition and Enforcement of Determinations in Convention Countries

Enforceability and recognition of determination made in Convention Country.

25.—(1) Subject to the provisions of this Act, where a relevant authority in a Convention Country has made a determination, that determination shall be enforceable or, as the case may be, recognised in the State.

(2) In this Part—

“determination” means a decision of a relevant authority made under any provision corresponding to this Act awarding compensation to any person for pollution damage;

“relevant authority”, in relation to a Convention Country, means—

(a) any court or tribunal which, under the laws of that state, has jurisdiction to determine the liability for pollution damage and to award compensation for such damage;

(b) any administrative authority which, under the laws of that state, has the power to make a determination in respect of such liability and such compensation, being a determination which, in that state, is subject to appeal to, or review by, a court or tribunal;

(c) any court or tribunal which, under the laws of that state, has jurisdiction to determine any appeal from, or to carry out any review of, a determination made in respect of such liability or such compensation by another relevant authority.

Application for enforcement of determination made in Convention Country.

26.—(1) Every application for the enforcement of a determination made by a relevant authority in a Convention Country shall be made to the Court.

(2) The Court shall (on the hearing of an application for the enforcement of a determination), unless the enforcement of the determination is refused pursuant to section 28 , make an order for the enforcement of the determination to the extent that the amount of the compensation to which the determination relates has not been satisfied.

(3) In any application for the enforcement of a determination under this section, the determination may not be reviewed as to its substance.

Effect of order for enforcement of determination.

27.—(1) Whenever an order for the enforcement of a determination has been made pursuant to section 26 , the determination shall, to the extent to which its enforcement is authorised pursuant to the order of the court, have the same force and effect as if the determination had been made by the Court and proceedings for or in respect of its enforcement may be taken accordingly.

(2) Whenever the Court makes an order on foot of an application made pursuant to section 26 for the enforcement of a determination, the order may provide for the payment of the reasonable costs of and incidental to the application and such costs shall be recoverable as if they were sums recoverable under the determination.

(3) Where, on an application pursuant to section 26 for the enforcement of a determination, it is shown that, in accordance with the laws of the Convention Country in which the determination was made, interest is recoverable under the determination from a particular date or time, the rate of interest and the date or time from which it is recoverable shall be noted on the order for enforcement, if such order is made, and the sum due on foot of the determination, other than any sum due pursuant to subsection (2), shall carry interest in accordance with the noted particulars.

(4) Interest on any sum due on foot of a determination in respect of which an order of enforcement has been made shall be recoverable only pursuant to this section.

Non-recognition or non-enforcement of determination.

28.—(1) A determination by a relevant authority in a Convention Country shall not be recognised or enforced in the State if—

(a) the determination is not final; or

(b) the determination is manifestly contrary to public policy in the State; or

(c) the person against whom the proceedings which resulted in the determination were brought did not, notwithstanding that due notice of the proceedings may have been duly served on him in the Convention Country concerned, receive notice in sufficient time to enable him to defend the proceedings or, as the case may be, to apply for the proceedings to be reviewed; or

(d) the determination is incompatible with the judgment of any court in the State.

(2) For the purposes of subsection (1) (a), a determination by a relevant authority in a Convention Country shall be deemed to be final if—

(a) neither an appeal from, nor an application for review of, that determination is pending in that state, and

(b) it is not possible for any of the reasons specified in subsection (3) for such an appeal to be brought or such an application to be made.

(3) The reasons referred to in subsection (2) (b) are—

(a) the law applicable in the Convention Country concerned does not provide for an appeal from, or review of, the determination, being a determination made by either a court or a tribunal; or

(b) the time within which an appeal must be brought, or an application for review must be made, has expired; or

(c) an appeal which has been brought, or an application for review which has been made, has been withdrawn; or

(d) the determination has been confirmed by, or made in pursuance of a direction contained in, a determination which was made by a relevant authority and is final and without appeal.

(4) If, on an appeal against a decision to enforce a determination, the appellant satisfies the court that the determination is not final, the court may, on such terms as it thinks fit—

(a) set aside the enforcement order, or

(b) adjourn the appeal until such time as the determination has become final.

(5) Nothing in subsection (4) shall require the court either to set aside an enforcement order or to adjourn an appeal in any case where—

(a) the court is satisfied that there is no other ground on which the enforcement order should be set aside, and

(b) the court is not satisfied that the applicant intends to continue with an appeal or application for review which is pending or, as the case may be, to bring any appeal, or make any such application, which is open to him to bring or make in respect of the determination.

Documents required to accompany request for enforcement of determination.

29.—(1) The following documents shall be attached to every application for the enforcement of a determination pursuant to this Act, that is to say—

(a) a certified copy of the determination;

(b) in the case of a determination by a relevant authority (being a court or a tribunal) which is made by default, the original or a certified copy of a document establishing that notice of the proceedings was duly served on the person against whom enforcement is sought;

(c) in the case of a determination by a relevant authority which is an administrative authority, a document establishing that the determination was subject to review by a court or tribunal but is no longer so subject because that court or tribunal has made a final decision and has dismissed the appeal or because the appeal has been withdrawn or because the time within which an appeal should be lodged has expired; and

(d) documents establishing that the determination is enforceable in the Convention Country and that the person against whom enforcement is sought has received notice of the determination in due time.

(2) If the court so requires, a translation of the documents specified in subsection (1) shall be produced: the translation shall be certified as correct by a person competent so to do.

(3) For the purposes of this Part—

(a) a document, duly certified, which purports to be a copy of a determination of a relevant authority in a Convention Country shall, without further proof, be deemed to be a true copy of that determination, unless the contrary is shown;

(b) the original, or a copy, of any document specified in subsection (1) (b), (1)(c) or (1)(d) shall be evidence of any matter to which such document relates; and

(c) a document which purports to be a translation of a document which is provided pursuant to subsection (2) and to be certified as correct by a person competent so to do shall, without further proof, be deemed to be such translation, unless the contrary is shown.

(4) A document purporting to be a copy of a determination given by a relevant authority shall be deemed to be duly certified if—

(a) in the case of a determination by a court, it purports to bear the seal of that court or to be certified by any person in his capacity as a judge or officer of that court to be a true copy of a determination made by that Court, or

(b) in the case of a determination by a relevant authority other than a court, it purports to be certified by a person in his capacity as an officer of that authority to be a true copy of a determination made by that authority.

PART V

Miscellaneous

Jurisdiction of Court.

30.—(1) Where an action for compensation for pollution damage against the owner of a ship or his guarantor has been brought before the Court, the Court shall have exclusive jurisdiction in any action for compensation or indemnity which may be commenced against the Fund in respect of the same damage.

(2) The Court shall have jurisdiction in any action commenced against the Fund in respect of pollution damage in the State in any case where an action has been brought against the owner of a ship or his guarantor in a country which is a party to the Liability Convention but is not a party to the Fund Convention.

(3) The Court may relieve the owner of a ship, his guarantor or the Fund wholly or partially from liability to a person for pollution damage if it is proved that the damage resulted wholly or partially from the negligence of that person or that the damage was contributed to by any act or omission of such person which was calculated to cause damage.

Appointment of inspectors.

31.—(1) The Minister may, by warrant, appoint a person to be an inspector to carry out the functions of an inspector under this Act.

(2) Every person appointed by the Minister pursuant to subsection (1) shall be furnished with a certificate of his appointment and when exercising a power conferred on an inspector under this Act shall, if requested by any person thereby affected, produce such certificate for inspection by that person.

Powers of inspector.

32.—(1) For the purpose of the exercise of his functions under this Act, an inspector may do all such things as may appear to him to be necessary for the purposes of carrying out his functions under this Act.

(2) Without prejudice to the generality of subsection (1), an inspector may do all or any of the following things:

(a) stop or detain a ship on behalf of the Minister;

(b) go on board any ship and inspect the ship and any document on board the ship;

(c) require any person on board a ship to furnish him with his name and address;

(d) require the master of the ship to produce for inspection the certificate required to be carried on board by section 16 of this Act;

(e) enter and inspect any premises and any apparatus for the transfer of oil;

(f) by summons under his hand require any person to attend before him and examine him on oath (which the inspector is hereby authorised to administer);

(g) require a witness to make and subscribe a declaration of the truth of any statements made by him at his examination;

(h) require any person to produce to him any document in his power or control or make return to any inquiry;

(i) copy any entry in any document required by this Act or by the Oil Pollution of the Sea Acts, 1956 to 1977, to be kept and require the person by whom the document is kept to certify the copy as a true copy of the entry;

(j) take samples of oil from any ship;

(k) give a direction, either orally or in writing to the owner or master of a ship, or to any employee or agent of the owner, in relation to the ship.

(3) A witness before an inspector shall be entitled to the same immunities and privileges as if he were a witness before the Court and shall be allowed such expenses as would be allowed to a witness attending the Court on a sub poena: and any dispute as to the amount of those expenses shall be referred to a Taxing Master who shall, on request made to him under the hand of the inspector, ascertain and certify the amount of the expenses.

(4) Any person who—

(a) on being summoned as a witness before an inspector and tendered the expenses to which he is entitled under this section, makes default in attending or refuses to take an oath legally required by the inspector to be taken, or

(b) refuses or neglects to make any answer or to give any return or to produce any document or to make or subscribe any declaration, or to certify a copy of any entry which the inspector is entitled to require,

shall be guilty of an offence.

(5) Any person who—

(a) wilfully impedes an inspector in the exercise of his functions under this Act, or

(b) when requested by an inspector to furnish his name and address, fails or refuses so to do, or who, when so requested, furnishes a name or address which is false or misleading, shall be guilty of an offence.

Powers of harbour-masters.

33.—(1) Subject to the provisions of sections 13 and 16 and without prejudice to the powers conferred on an inspector by section 32 , a harbour-master, in the case of any ship which is in the harbour of which he is harbour-master, may—

(a) go on board any such ship and inspect the ship and any documents on board;

(b) require the production of any document required to be kept under this Act or under the Oil Pollution of the Sea Acts, 1956 to 1977;

(c) copy any entry in any such document and require the person by whom the document is kept to certify the copy as a true copy of the entry:

Provided that the harbour-master does not, in the exercise of his powers under this Act, unnecessarily detain or delay the ship from proceeding on its voyage.

(2) Any person who—

(a) fails to comply with any requirement of a harbour-master under this section, or

(b) wilfully impedes a harbour-master in the exercise of his functions under this Act,

shall be guilty of an offence.

Provisions relating to detention of ships.

34.—Whenever an inspector or a harbour-master, in exercise of the powers conferred by section 13 (3) or section 16 , detains a ship, the following provisions shall have effect—

(a) the inspector, or as the case may be, the harbour-master, shall, as soon as may be apply to a District Justice for an order authorising the continued detention of the ship and the District Justice may grant an order authorising such detention for a period of 48 hours if he is satisfied that the inspector or harbour-master, as the case may be, has reasonable grounds for believing that there has been, in relation to the ship, a contravention of this Act, and upon the expiration of the period of 48 hours, the ship shall be released unless an order providing for its further detention has been made in accordance with paragraph (b);

(b) where an inspector or harbour-master has, in exercise of the powers conferred on him under this Act, detained a ship, he shall, as soon as may be, bring the master of the ship against whom proceedings for an offence under this Act have been, or are about to be, instituted before a District Justice and thereupon the District Justice shall, if he is satisfied that such proceedings have been or are about to be issued against the master of the ship by order directed to an inspector or, as the case may be, harbour-master require the inspector or harbour-master to detain at a specified place in the State the ship until such proceedings have been adjudicated upon by a court in exercise of its criminal jurisdiction.

Detention of ships pending determination of proceedings (including appeals) under Act.

35.—(1) Where a person is convicted of an offence under this Act, or proceedings in relation to an offence are dismissed, and the ship in relation to which the offence has been committed has been detained under this Act, the Judge or, as the case may be, the District Justice, concerned shall, by order directed to an inspector or harbour-master, require the inspector or harbour-master, in the event of an appeal from, or other proceedings in relation to, the order of the court hearing the matter, to detain the ship further pending the determination of the appeal or other proceedings (and any proceedings consequent on the appeal or other proceedings) at a specified place in the State.

(2) Where, in respect of an offence under this Act, an order is made under this section or under section 34 for the detention of a ship, a District Justice may, at his discretion, by order directed to an inspector or harbour-master, as the case may be, require the ship to be released if security which, in the opinion of the District Justice, is satisfactory is given for the payment, in the event of conviction of the defendant in respect of the offence or offences with which he is charged or in the event of his failure to attend before any court when such attendance is required for the purposes of any preliminary examinations under the Criminal Procedure Act, 1967 , in relation to the offence or offences or any trials, appeals or other proceedings in relation to the offence or offences, of a sum that, in the opinion of the District Justice, is sufficient to provide for—

(a) payment of the maximum fine or fines ordered, or which may be ordered, to be paid in respect of the offence or offences,

(b) the estimated amount of the costs (if any) of any trials, appeals or other proceedings in relation to the offence or offences awarded, or which may be awarded, against the defendant concerned.

(3) The security provided for in subsection (2) is in addition to, and not in substitution for, any other bond or recognisance which the defendant concerned may be required to enter into by the Judge or, as the case may be, the District Justice, concerned in relation to any trials, appeals or other proceedings in respect of the offence concerned.

(4) Where an order is made under this section for the detention or release of a ship, the ship shall be detained or released, as the case may be, in accordance with the terms of the order.

Payment out of security provided for in section 35 .

36.—Whenever security is given by a defendant pursuant to section 35 for the payment of the maximum or any fine imposed in respect of an offence under this Act and for the estimated costs of any trials, appeals or other proceedings in respect of such an offence, the court may, when the trial, appeal or other proceedings, as the case may, has or have been finally determined, if it decides that it is proper so to do, on application from the Minister, direct that the whole of the amount of the security, or such part thereof as may be necessary to discharge the amount of the fine imposed in respect of the offence together with the amount of any costs awarded in respect of any trial, appeal or other proceeding, be paid out to the Minister.

Prosecution of offences.

37.—(1) Summary proceedings in respect of an offence under this Act may be brought and prosecuted by the Minister.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under this Act may be instituted—

(a) in every case, within two years from the date of the offence, and

(b) if, at the expiry of that period, the person to be charged is outside the State, within two months of the date on which he next enters the State.

(3) Without prejudice to any other jurisdiction, proceedings for an offence under this Act may be taken against a person at any place where he may, for the time being, be.

Offences by bodies corporate.

38.—Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other official of such body, such person shall also be guilty of an offence.

Indictment of body corporate.

39.—(1) A body corporate may be sent forward for trial on indictment for an offence under this Act with or without recognisances.

(2) On arraignment before the Central Criminal Court or the Circuit Court, the body corporate may enter in writing by its representative a plea of guilty or not guilty and if it does not appear by a representative appointed by it for the purpose or, though it does so appear, fails to enter any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the body corporate had duly entered that plea.

(3) A statement in writing purporting to be signed by the secretary of the body corporate to the effect that the person named in the statement has been appointed as the representative of the body for the purposes of this section shall be admissible without further proof that the person has been so appointed.

(4) Any summons or other document required to be served for the purpose, or in the course, of proceedings under this section on a body corporate may be served by leaving it at, or sending it by registered post to, the registered office of that body or, if there be no such office in the State, by leaving it at, or by sending it by registered post to, the body at any place in the State at which it conducts its business.

Penalties.

40.—(1) A person who is convicted of an offence under section 13 (3), 16 (5), 16 (6), 16 (8) or 19 shall be liable—

(a) on summary conviction to a fine not exceeding £1,000, or to imprisonment for any term not exceeding twelve months, or, at the discretion of the court, to both such fine and such imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £1,000,000, or to imprisonment for any term not exceeding 5 years, or, at the discretion of the court, to both such fine and such imprisonment.

(2) A person, who is convicted of an offence under section 32 or 33 , shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000, or to imprisonment for any term not exceeding twelve months, or, at the discretion of the court, to both such fine and such imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £10,000, or to imprisonment for any term not exceeding two years, or, at the discretion of the court, to both such fine and such imprisonment.

Recovery of fines for offences under Act.

41.—The following provisions shall have effect in relation to the recovery of a fine for an offence under this Act and the costs (if any) ordered to be paid by the person convicted of such offence:—

(a) the court shall fix a time within which such fine and costs (if any) are to be paid;

(b) where the ship to which such person belongs is, at the time of the hearing of the proceedings for such offence, detained under this Act, the court shall by order directed to an inspector or harbour-master, as the case may be, require such inspector or harbour-master to detain further, until such fine and costs (if any) are paid, at a specified place in the State such ship, and such ship shall be detained accordingly;

(c) in the event of such fine and costs (if any) not being paid within the said time, such fine and costs may be recovered by the distress and sale of such ship, her tackle, furniture and apparel;

(d) nothing in the foregoing paragraphs of this section shall prevent such fine and costs (if any) being recovered from such person by ordinary process of law.

Application of fines.

42.—Where it appears to the court imposing a fine for an offence under this Act that a person has incurred, or will incur, expense in removing any pollution or making good any damage attributable to the offence, the court may order that the whole or part of the fine be paid to that person for, or towards, defraying that expense.

Admissibility of records as evidence.

43.—Every document purporting—

(a) to be kept in pursuance of this Act, the Oil Pollution of the Sea Acts, 1956 to 1977, the Liability Convention or the Fund Convention or any Convention or Protocol amending or extending either of those Conventions, or

(b) to be a true copy, certified as such by the person by whom the document is kept, of a document or of an entry therein,

shall, unless the contrary is shown, be presumed to be such and shall be admissible, without further proof, as evidence of the facts therein.

Exemption from Act.

44.—(1) This Act shall not apply to any warship or to any ship for the time being used by the government of any state for purposes other than commercial purposes.

(2) The Minister may, where he is satisfied that an exemption would not result in a reduced liability for pollution, or in reduced means for meeting any such liability, exempt any ship registered in the State, or any class of ships so registered, from all or any of the provisions of this Act or of any order or Regulation made thereunder either absolutely or subject to such conditions as he thinks fit.

Fees for certificates, exemptions etc.

45.—There shall be charged for any certification given, exemption granted or service rendered, under this Act to the owner of any ship such fee as the Minister may prescribe.

Collection of fees.

46.—(1) Fees under this Act shall be taken and collected in such manner as the Minister for Finance may, from time to time, direct and shall be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.

(2) The Public Offices Fees Act, 1879, shall not apply in relation to fees under this Act.