Decreto n.º 1/2005

TEXTO :

Decreto n.º 1/2005

de 28 de Janeiro

Portugal aderiu à Convenção Internacional para a Constituição de Um Fundo Internacional para Compensação pelos Prejuízos Devidos à Poluição por Hidrocarbonetos e aprovou as alterações que lhe foram introduzidas pelo Protocolo de 1992, através do Decreto n.º 38/2001, de 25 de Setembro.

A Decisão do Conselho da União Europeia de 2 de Março de 2004 autorizou os Estados membros a assinar ou a ratificar, no interesse da Comunidade Europeia, o Protocolo de 2003 da Convenção acima referida, designado por Protocolo do Fundo Complementar, que se destina a garantir a indemnização adequada, pronta e efectiva das pessoas que sofrem danos causados por derrames de hidrocarbonetos provenientes de petroleiros. Ao aumentar significativamente os limites de indemnização previstos pelo actual regime internacional o Protocolo do Fundo Complementar vem colmatar uma das lacunas mais significativas da regulamentação internacional relativas à responsabilidade pela poluição causada por hidrocarbonetos.

Tendo em consideração a importância e a extensão do espaço marítimo de Portugal, aberto à navegação internacional, que abrange as áreas das Regiões Autónomas dos Açores e da Madeira, que o tornam numa das zonas marítimas mais alargadas da União Europeia, e considerando a melhoria do regime de indemnização em caso de poluição que o Protocolo do Fundo Complementar vem instituir, afigura-se oportuna a sua aprovação.

Assim:

Nos termos da alínea c) do n.º 1 do artigo 197.º da Constituição, o Governo aprova o Protocolo de 2003 à Convenção Internacional para a Constituição de Um Fundo Internacional para Compensação pelos Prejuízos Devidos à Poluição por Hidrocarbonetos, de 1992, feito em Londres em 16 de Maio de 2003, cujo texto, na versão autêntica em língua inglesa e a respectiva tradução para língua portuguesa, se publica em anexo.

Visto e aprovado em Conselho de Ministros de 25 de Novembro de 2004. - Pedro Miguel de Santana Lopes - Paulo Sacadura Cabral Portas - António José de Castro Bagão Félix - António Victor Martins Monteiro - António Luís Guerra Nunes Mexia - Luís José de Mello e Castro Guedes.

Assinado em 7 de Janeiro de 2005.

Publique-se.

O Presidente da República, JORGE SAMPAIO.

Referendado em 10 de Janeiro de 2005.

O Primeiro-Ministro, Pedro Miguel de Santana Lopes.

PROTOCOL OF 2003 TO THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 1992.

The Contracting States to the present Protocol:

Bearing in mind the International Convention on Civil Liability for Oil Pollution Damage, 1992, hereinafter "the 1992 Liability Convention»;

Having considered the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, hereinafter "the 1992 Fund Convention»;

Affirming the importance of maintaining the viability of the international oil pollution liability and compensation system;

Noting that the maximum compensation afforded by the 1992 Fund Convention might be insufficient to meet compensation needs, in certain circumstances, in some Contracting States to that Convention;

Recognizing that a number of Contracting States to the 1992 Liability and 1992 Fund Conventions consider it necessary as a matter of urgency to make available additional funds for compensation through the creation of a supplementary scheme to which States may accede if they so wish;

Believing that the supplementary scheme should seek to ensure that victims of oil pollution damage are compensated in full for their loss or damage and should also alleviate the difficulties faced by victims in cases where there is a risk that the amount of compensation available under the 1992 Liability and 1992 Fund Conventions will be insufficient to pay established claims in full and that as a consequence the International Oil Pollution Compensation Fund, 1992, has decided provisionally that it will pay only a proportion of any established claim;

Considering that accession to the supplementary scheme will be open only to Contracting States to the 1992 Fund Convention:

have agreed as folllows:

General provisions

Article 1

For the purposes of this Protocol:

1) "1992 Liability Convention» means the International Convention on Civil Liability for Oil Pollution Damage, 1992;

2) "1992 Fund Convention» means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992;

3) "1992 Fund» means the International Oil Pollution Compensation Fund, 1992, established under the 1992 Fund Convention;

4) "Contracting State» means a Contracting State to this Protocol, unless stated otherwise;

5) When provisions of the 1992 Fund Convention are incorporated by reference into this Protocol, "Fund» in that Convention means "Supplementary Fund», unless stated othenvise;

6) "Ship», "Person», "owner», "oil», "pollution damage», "preventive measures» and "incident» have the same meaning as in article 1 of the 1992 Liability Convention;

7) "Contributing oil», "unit of account», "ton», "guarantor» and "terminal installation» have the same meaning as in article I of the 1992 Fund Convention, unless stated otherwise;

8) "Established claim» means a claim which has been recognised by the 1992 Fund or been accepted as admissible by decision of a competent court binding upon the 1992 Fund not subject to ordinary forms of review and which would have been fully compensated if the limit set out in article 4, paragraph 4, of the 1992 Fund Convention had not been applied to that incident;

9) "Assembly» means the Assembly of the International Oil Pollution Compensation Supplementary Fund, 2003, unless otherwise indicated;

10) "Organization» means the International Maritime Organization;

11) "Secretary-General» means the Secretary-General of the Organization.

Article 2

1 - An international supplementary fund for compensation for pollution damage, to be named "The International Oil Pollution Compensation Supplementary Fund, 2003» hereinafter "the Supplementary Fund», is hereby established.

2 - The Supplementary Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognize the director of the Supplementary Fund as the legal representative of the Supplementary Fund.

Article 3

This Protocol shall apply exclusively:

ii) In the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

Supplementary compensation

Article 4

1 - The Supplementary Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for an established claim for such damage under the terms of the 1992 Fund Convention, because the total damage exceeds, or there is a risk that it will exceed, the applicable limit of compensation laid down in article 4, paragraph 4, of the 1992 Fund Convention in respect of any one incident.

2 - a) The aggregate amount of compensation payable by the Supplementary Fund under this article shall in respect of any one incident be limited, so that the total sum of that amount together with the amount of compensation actually paid under the 1992 Liability Convention and the 1992 Fund Convention within the scope of application of this Protocol shall not exceed 750 million units of account.

3 - Where the amount of established claims against the Supplementary Fund exceeds the aggregate amount of compensation payable under paragraph 2, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Protocol shall be the same for all claimants.

4 - The Supplementary Fund shall pay compensation in respect of established claims as defined in article 1, paragraph 8, and only in respect of such claims.

Article 5

The Supplementary Fund shall pay compensation when the assembly of the 1992 Fund has considered that the total amount of the established claims exceeds, or there is a risk that the total amount of established claims will exceed the aggregate amount of compensation available under article 4, paragraph 4, of the 1992 Fund Convention and that as a consequence the assembly of the 1992 Fund has decided provisionally or finally that payments will only be made for a proportion of any established claim. The assembly of the Supplementary Fund shall then decide whether and to what extent the Supplementary Fund shall pay the proportion of any established claim not paid under the 1992 Liability Convention and the 1992 Fund Convention.

Article 6

1 - Subject to article 15, paragraphs 2 and 3, rights to compensation against the Supplementary Fund shall be extinguished only if they are extinguished against the 1992 Fund, under article 6 of the 1992 Fund Convention.

2 - A claim made against the 1992 Fund shall be regarded as a claim made by the same claimant against the Supplementary Fund.

Article 7

1 - The provisions of article 7, paragraphs 1, 2, 4, 5 and 6, of the 1992 Fund Convention shall apply to actions for compensation brought against the Supplementary Fund, in accordance with article 4, paragraph 1, of this Protocol.

2 - Where an action for compensation for pollution damage has been brought before a court competent under article IX of the 1992 Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Supplementary Fund for compensation under the provisions of article 4 of this Protocol in respect of the same damage. However, where an action for compensation for pollution damage under the 1992 Liability Convention has been brought before a court in a Contracting State to the 1992 Liability Convention but not to this Protocol, any action against the Supplementary Fund under article 4 of this Protocol shall at the option of the claimant be brought either before a court of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State to this Protocol competent under article IX of the 1992 Liability Convention.

3 - Notwithstanding paragraph 1, where an action for compensation for pollution damage against the 1992 Fund has been brought before a court in a Contracting State to the 1992 Fund Convention but not to this Protocol, any related action against the Supplementary Fund shall, at the option of the claimant, be brought either before a court, of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State competent under paragraph 1.

Article 8

1 - Subject to any decision concerning the distribution referred to in article 4, paragraph 3, of this Protocol, any judgment given against the Supplementary Fund by a court having jurisdiction in accordance with article 7 of this Protocol, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in article X of the 1992 Liability Convention.

2 - A Contracting State may apply other rules for the recognition and enforcement of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent as under paragraph 1.

Article 9

1 - The Supplementary Fund shall, in respect of any amount of compensation for pollution damage paid by the Supplementary Fund in accordance with article 4, paragraph 1, of this Protocol, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor.

2 - The Supplementary Fund shall acquire by subrogation the rights that the person compensated by it may enjoy under the 1992 Fund Convention against the 1992 Fund.

3 - Nothing in this Protocol shall prejudice any right of recourse or subrogation of the Supplementary Fund against persons other than those referred to in the preceding paragraphs. In any event the right of the Supplementary Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation has been paid.

4 - Without prejudice to any other rights of subrogation or recourse against the Supplementary Fund which may exist, a Contracting State or agency thereof which has paid compensation for pollution damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Protocol.

Contributions

Article 10

1 - Annual contributions to the Supplementary Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in article 11, paragraph 2, a) or b), has received in total quantities exceeding 150000 tons:

2 - The provisions of article 10, paragraph 2, of the 1992 Fund Convention shall apply in respect of the obligation to pay contributions to the Supplementary Fund.

Article 11

1 - With a view to assessing the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the assembly shall for each calendar year make an estimate in the form of a budget of:

ii) Income:

2 - The assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the director of the Supplementary Fund shall, in respect of each Contracting State, calculate for each person referred to in article 10, the amount of that person's anual contribution:

3 - The sums referred to in paragraph 2 shall be arrived at by dividing the relevant total amount of contributions required by the total amount of contributing oil received in all Contracting States in the relevant year.

4 - The annual contribution shall be due on the date to be laid down in the internal regulations of the Supplementary Fund. The assembly may decide on a different date of payment.

5 - The assembly may decide, under conditions to be laid down in the financial regulations of the Supplementary Fund, to make transfers between funds received in accordance with paragraph 2, a) and funds received in accordance with paragraph 2, b).

Article 12

1 - The provisions of article 13 of the 1992 Fund Convention shall apply to contributions to the Supplementary Fund.

2 - A Contracting State itself may assume the obligation to pay contributions to the Supplementary Fund, in accordance with the procedere set out in article 14 of the 1992 Fund Convention.