Sea Pollution (Hazardous Substances) (Compensation) Act 2005

PART 1 Preliminary and General

1. Short title, collective citation, collective construction and commencement.

1.—(1) This Act may be cited as the Sea Pollution (Hazardous Substances) (Compensation) Act 2005.

(2) The Merchant Shipping Acts 1894 to 2000, and section 28 may be cited together as the Merchant Shipping Acts 1894 to 2005 and shall be construed together as one Act.

(3) The Oil Pollution of the Sea (Civil Liability and Compensation) Acts 1988 to 2003, and section 29 may be cited together as the Oil Pollution of the Sea (Civil Liability and Compensation) Acts 1988 to 2005.

(4) This Act shall come into operation on such day or days as the Minister may, by order or orders, appoint, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions.

2. Interpretation.

2.—(1) In this Act, except where the context otherwise requires—

“the Central Bank” means the F1[Central Bank of Ireland];

“the Convention” means the International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996, done at London on the 3rd day of May, 1996;

“convention court” means, in relation to a State Party (other than the State)—

(a) any court or tribunal that under the law of that State Party has jurisdiction to determine liability in respect of damage incurred, and to award compensation therefor, or

(b) any court or tribunal that under the law of that State Party has jurisdiction to, adjudicate on any appeal from, or review, a judgment of a court or tribunal referred to in paragraph (a);

“Council Regulation” means Council Regulation (EC) No. 44/2001^1 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;

“final judgment” shall be construed in accordance with section 17(3);

“functions” includes powers and duties, and references to the performance of functions include references to the exercise of powers and the carrying out of duties;

“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;

(b) in the case of a harbour under the control of a company established pursuant to section 7 of the Harbours Act 1996 the company concerned;

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

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

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

“inspector” means—

(a) a person appointed to be an inspector under section 23,

(b) a person holding commissioned rank in the Permanent Defence Forces, while in uniform,

(c) a member of the Garda Síochána, while in uniform,

(d) as respects the harbour of which he or she is the harbour master, a person appointed to be a harbour master by a harbour authority;

“judgment” means a decision of a convention court made in accordance with the provisions of the Convention awarding compensation to a person in respect of damage incurred by him or her;

“judgment debtor” means the person against whom a convention court has given a final judgment;

“Member State” means a Member State of the European Community (other than the State and Denmark);

“Minister” means the Minister for Communications, Marine and Natural Resources;

“State Party” means a state that is declared by order under section 9 to be a State Party to the Convention.

F2[(2) A reference in this Act to the State includes a reference to—

(a) the internal waters of the State,

(b) the territorial sea of the State, its seabed and subsoil, and

(c) the exclusive economic zone within the meaning of the Maritime Jurisdiction Act 2021.]

(3) A word or expression that is used in this Act and that is also used in the Convention has, in this Act, the meaning that it has in the Convention.

(4) In this Act—

(a) a reference to a section or Schedule is a reference to a section of, or a Schedule to, this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is a reference to a subsection or paragraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c) a reference to any enactment is a reference to that enactment as amended, extended or adapted, whether before or after the commencement of this section, by or under any subsequent enactment.

3. Orders.

3.—(1) The Minister may by order amend or revoke an order made by him or her under this Act (other than an order under section 1(4) but including an order under this subsection).

(2) An order under subsection (1) shall be made in the like manner and its making shall be subject to the like (if any) consents and conditions as the order that it is amending or revoking.

4. Laying of orders and regulations before Houses of Oireachtas.

4.—Every order and regulation under this Act (other than an order under section 1(4)) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling such order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

5. Expenses.

5.—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.

6. Penalties and offences.

6.—(1) (a) A person guilty of an offence under section 15 shall be liable—

(i) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months, or to both, or

(ii) on conviction on indictment, to a fine not exceeding €1,270,000, or to imprisonment for a term not exceeding 5 years, or to both.

(b) A person guilty of an offence under this Act (other than section 15) shall be liable—

(i) on summary conviction to a fine not exceeding €3,000, or to imprisonment for a term not exceeding 12 months, or to both, or

(ii) on conviction on indictment, to a fine not exceeding €13,000, or to imprisonment for a term not exceeding 2 years, or to both.

(2) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence under section 15 as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (1)(a)(i), and the reference in subsection (2)(a) of the said section 13 to the penalties provided for by subsection (3) shall be construed and have effect accordingly.

(3) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence under this Act (other than section 15) as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (1)(b)(i), and the reference in subsection (2)(a) of the said section 13 to the penalties provided for by subsection (3) shall be construed and have effect accordingly.

(4) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

7. Proceedings.

7.—(1) Summary proceedings for 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) within 2 years from the date on which the offence was committed, and

(b) if at the end of that period, the person to be charged is outside the State, within 2 months of the date on which he or she next enters the State.

(3) References in section 382 of the Companies Act 1963 to a company shall, for the purposes of this Act, be construed as including references to a body corporate (whether or not a company within the meaning of that section) charged on indictment with an offence under this Act.

PART 2 Convention of 1996

8. Convention to have force of law.

8.—(1) Subject to the provisions of this Act, the Convention (other than Article 48 in so far as it relates to paragraph 1 of Article 9) shall have the force of law in the State and judicial notice shall be taken thereof.

(2) Where the Convention requires the State to impose a duty on any person the duty concerned shall, by virtue of subsection (1), be deemed to be so imposed.

(3) For convenience of reference, the text, in the English language, of the Convention is set out in Schedule 1.

9. Order declaring state (other than State) to be State Party.

9.—The Minister may by order declare that any state specified in the order is a State Party to the Convention and such an order shall be evidence that that state is a State Party to the Convention.

10. Hazardous and Noxious Substances Fund.

10.—(1) The Hazardous and Noxious Substances Fund (hereafter referred to in this Act as “the Fund”) is hereby recognised as, and as having all the attributes of, a body corporate, including perpetual succession, the power to acquire, hold and dispose of land or other property and the power to sue, and may be sued in its corporate name.

(2) The Director of the Fund is hereby recognised as being the legal representative of the Fund.

(3) The reference in paragraph 1 of Article 35 of the Convention to all State Parties shall be construed as a reference to the State.

11. Conversion of amounts in units of account into currency of State for purposes of Convention.

11.—(1) For the purpose of the limits of liability specified in Article 9 of the Convention, the value in the currency of the State of a unit of account shall be taken to be its value, ascertained in accordance with paragraph 9 of that Article, in that currency on the day specified in subparagraph (a) of the said paragraph 9 or, if its value on that day cannot be so ascertained, its value in that currency on the latest day, on which it can be so ascertained, before the first-mentioned day.

(2) For the purposes of Article 14 of the Convention, the value in the currency of the State of a unit of account shall be taken to be its value, ascertained in accordance with paragraph 5(d) of that Article, in that currency on the day specified in the said paragraph 5(d) or, if its value on that day cannot be so ascertained, its value on the latest day, on which it can be so ascertained, before the first-mentioned day.

(3) For the purposes of this section, a certificate purporting to be signed by an officer of the Central Bank and stating that—

(a) a specified amount in the currency of the State is the value of a unit of account on a specified day, or

(b) the value in the currency of the State of a unit of account on a specified day cannot be ascertained in accordance with the Convention and that a specified amount in the currency of the State is the value of a unit of account ascertained in accordance with that Convention on a specified day (being the latest day, on which such value can be so ascertained, before the first-mentioned specified day),

shall be admissible as evidence of the matters stated in the certificate.

12. Act not to apply to certain ships.

12.—The Minister may, by order declare that this Act shall not apply to ships in respect of which a declaration has been made under Article 5 of the Convention.

13. Construction of reference to competent public authority.

13.—The reference in paragraph 5(d) of Article 7 of the Convention to a competent public authority shall be construed as a reference to the Minister or a harbour authority.

14. Limitation of liability.

14.—(1) The owner of a ship who, or who it is alleged, has incurred a liability under Article 7 of the Convention may (whether proceedings for the recovery of compensation in respect of damage incurred resulting from a specific incident have been instituted against him or her, or not) apply to the High Court for an order limiting his or her liability in accordance with Article 9 of the Convention.

(2) Upon application being made under subsection (1) by the owner of the ship concerned (hereafter in this section referred to as “the applicant”), the High Court shall—

(a) if satisfied that were it to find that the applicant had incurred a liability under the said Article 7 he or she would be entitled to limit his or her liability in accordance with the said Article 9, and

(b) if the applicant pays into court, in accordance with paragraph 3 of that Article, such sum as, in the opinion of the court is equal to the maximum amount of compensation that the owner of the ship would, if he or she so limited his or her liability, be liable to pay in respect of damage caused as a result of the incident concerned,

make an order—

(i) declaring that where the applicant is so found to have incurred a liability under the said Article 7 the said applicant's liability in respect of damage resulting from the incident concerned shall be limited to the amount of the sum so paid into court, and

(ii) that such amounts as may be determined by that court be paid out of the said sum, in accordance with paragraph 4 of Article 9 of the Convention, to such persons (if any) as the court determines are entitled to receive compensation from the said applicant in respect of damage incurred resulting from the incident concerned.

15. Insurance of ships.

15.—(1) The owner of an Irish ship or a ship registered in a state, other than the State or another State Party, may apply to the Minister for a compulsory insurance certificate.

(2) The Minister shall, on being satisfied that there is in force, in respect of a ship to which an application under subsection (1) applies, a contract of insurance or other financial security that complies with Article 12 of the Convention, issue a compulsory insurance certificate to the owner thereof.

(3) The owner and master of an Irish ship that—

(a) is carrying hazardous and noxious substances, and

(b) does not have on board a compulsory insurance certificate issued by the Minister under subsection (1),

shall each be guilty of an offence.

(4) The owner and master of a ship that—

(a) is carrying hazardous and noxious substances,

(b) is registered in a State Party other than the State, and

(c) does not have on board a compulsory insurance certificate that complies with, and is issued or certified in accordance with, the said Article 12,

shall, while the ship concerned is in the State, each be guilty of an offence.

(5) The owner and master of a ship that—

(a) is carrying hazardous and noxious substances,

(b) is not registered in the State or another State Party, and

(c) does not have on board—

(i) a compulsory insurance certificate issued by the Minister under subsection (1), or

(ii) a compulsory insurance certificate that otherwise complies with, and is issued or certified in accordance with, the said Article 12,

shall, while the ship concerned is in the State, each be guilty of an offence.

(6) An application under subsection (1) shall be accompanied by such fee, not exceeding the expense incurred by the Minister in considering such application and issuing a compulsory insurance certificate, as may be prescribed by the Minister.

(7) The Public Offices Fees Act 1879 shall not apply to fees under this section.

(8) In this section—

“compulsory insurance certificate” shall be construed in accordance with Article 12 of the Convention;

“Irish ship” shall be construed in accordance with section 9 of the Mercantile Marine Act 1955.

16. Actions for compensation under Convention.

16.—(1) An action for compensation under the Convention (hereafter in this section referred to as a “convention action”) shall be deemed for the purposes of every enactment and rule of law to be an action founded on tort.

(2) Subsection (1) shall not have the effect of applying to a convention action a provision of an enactment or rule of law that is inconsistent with a provision of the Convention.

(3) A convention action shall be brought in the High Court.

17. Final judgment to be recognised and enforceable in State.

17.—(1) A final judgment shall be recognised and enforceable in the State.

(2) An application for the enforcement of a final judgment shall be made to the High Court.

(3) For the purposes of this Act a judgment shall be deemed to be a final judgment where—

(a) the time within which, under the law of the State Party concerned, an appeal against the judgment may be brought has expired and no such appeal has been brought,

(b) under the law of the State Party concerned there is no provision for an appeal from such judgment,

(c) an appeal against the judgment has been withdrawn, or

(d) the judgment has been affirmed on appeal by the convention court hearing such appeal, and

(i) the time within which, under the law of the State Party concerned, an appeal against the decision to so affirm has expired and no such appeal has been brought,

(ii) under the law of the State Party concerned there is no provision for an appeal from the decision to so affirm, or

(iii) an appeal against the decision to so affirm has been withdrawn.

(4) This section shall not apply to a judgment of a court of a Member State (other than a court or tribunal of a territory of a Member State to which the Council Regulation does not apply).