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

PART I Preliminary and General

1 Short title.

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

2 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.

3 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.

4 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.

5 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.

6 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

7 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.

8 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.

9 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.

10 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.

11 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.

12 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).

13 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—