LegalizeDecreto n.º 40/2001
TEXTO :
Decreto n.º 40/2001
de 28 de Setembro
Nos termos da alínea c) do n.º 1 do artigo 197.º da Constituição, o Governo aprova o Protocolo de Alteração à Convenção Internacional sobre Responsabilidade Civil pelos Prejuízos Devidos à Poluição por Hidrocarbonetos, assinado em Londres em 27 de Novembro de 1992, cujas cópias autenticadas da versão em língua inglesa e respectiva tradução na língua portuguesa seguem em anexo.
Visto e aprovado em Conselho de Ministros de 9 de Agosto de 2001. - Jaime José Matos da Gama - Jaime José Matos da Gama - Rui Eduardo Ferreira Rodrigues Pena - Eduardo Guimarães de Oliveira Fernandes - Rui Nobre Gonçalves.
Assinado em 11 de Setembro de 2001.
Publique-se.
O Presidente da República, JORGE SAMPAIO.
Referendado em 13 de Setembro de 2001.
O Primeiro-Ministro, António Manuel de Oliveira Guterres.
PROTOCOL OF 1992 TO AMEND THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1969
The Parties to the present Protocol:
Having considered the International Convention on Civil Liability for Oil Pollution Damage, 1969, and the 1984 Protocol thereto;
Having noted that the 1984 Protocol to that Convention, which provides for improved scope and enhanced compensation, has not entered into force;
Affirming the importance of maintaining the viability of the international oil pollution liability and compensation system;
Aware of the need to ensure the entry into force of the content of the 1984 Protocol as soon as possible;
Recognizing that special provisions are necessary in connection with the introduction of corresponding amendments to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971;
have agreed as follows:
Article 1
The Convention which the provisions of this Protocol amend is the International Convention on Civil Liability for Oil Pollution Damage, 1969, hereinafter referred to as the «1969 Liability Convention». For State Parties to the Protocol of 1976 to the 1969 Liability Convention, such reference shall be deemed to include the 1969 Liability Convention as amended by that Protocol.
Article 2
Article I of the 1969 Liability Convention is amended as follows:
1) Paragraph 1 is replaced by the following text:
«1 - 'Ship' means any seagoing vessel and seaborne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.»
2) Paragraph 5 is replaced by the following text:
«5 - 'Oil' means any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such a ship.»
3) Paragraph 6 is replaced by the following text:
«6 - 'Pollution damage' means:
Loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than losses of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;
The costs of preventive measures and further loss or damage caused by preventive measures.»
4) Paragraph 8 is replaced by the following text:
«8 - 'Incident' means any occurrence, or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage.»
5) Paragraph 9 is replaced by the following text:
«9 - 'Organization' means the International Maritime Organization.»
6) After paragraph 9 a new paragraph is inserted reading as follows:
«10 - '1969 Liability Convention' means the International Convention on Civil Liability for Oil Pollution Damage, 1969. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1969 Liability Convention as amended by that Protocol.»
Article 3
Article II of the 1969 Liability Convention is replaced by the following text:
«This Convention shall apply exclusively:
To pollution damage caused:
In the territory, including the territorial sea, of a Contracting State; and
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;
To preventive measures, wherever taken, to prevent or minimize such damage.»
Article 4
Article III of the 1969 Liability Convention is amended as follows:
1) Paragraph 1 is replaced by the following text:
«1 - Except as provided in paragraphs 2 and 3 of this article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.»
2) Paragraph 4 is replaced by the following text:
«4 - No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:
The servants or agents of the owner or the members of the crew;
The pilot or any other person who, without being a member of the crew, performs services for the ship;
Any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;
Any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;
Any person taking preventive measures;
All servants or agents of persons mentioned in subparagraphs c), d) and e);
unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.»
Article 5
Article IV of the 1969 Liability Convention is replaced by the following text:
«When an incident involving two or more ships occurs and pollution damage results therefrom, the owners of all the ships concerned, unless exonerated under article III, shall be jointly and severally liable for all such damage which is not reasonably separable.»
Article 6
Article V of the 1969 Liability Convention is amended as follows:
1) Paragraph 1 is replaced by the following text:
«1 - The owner of a ship shall be entitled to limit his liability under this Convention in respect of any one incident to an aggregate amount calculated as follows:
3 million units of account for a ship not exceeding 5,000 units of tonnage;
For a ship with a tonnage in excess thereof, for each additional unit of tonnage, 420 units of account in addition to the amount mentioned in subparagraph a);
provided, however, that this aggregate amount shall not in any event exceed 59.7 million units of account.»
2) Paragraph 2 is replaced by the following text:
«2 - The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.»
3) Paragraph 3 is replaced by the following text:
«3 - For the purpose of availing himself of the benefit of limitation provided for in paragraph 1 of this article the owner shall constitute a fund for the total sum representing the limit of his liability with the Court or other competent authority of any one of the Contracting States in which action is brought under article IX or, if no action is brought, with any Court or other competent authority in any one of the Contracting States in which an action can be brought under article IX. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the legislation of the Contracting State where the fund is constituted, and considered to be adequate by the Court or other competent authority.»
4) Paragraph 9 is replaced by the following text:
«9 - a) The 'unit of account' referred to in paragraph 1 of this article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in paragraph 1 shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the constitution of the fund referred to in paragraph 3. The value of the national currency, in terms of the Special Drawing Right, of a Contracting State which is a member of the International Monetary Fund shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a Contracting State which is not a member of the International Monetary Fund shall be calculated in a manner determined by that State.
Nevertheless, a Contracting State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9, a), may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 9, a), shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five and a half milligrams of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.
The calculation mentioned in the last sentence of paragraph 9, a), and the conversion mentioned in paragraph 9, b), shall be made in such manner as to express in the national currency of the Contracting State as far as possible the same real value for the amounts in paragraph 1 as would result from the application of the first three sentences of paragraph 9, a). Contracting States shall communicate to the depositary the manner of calculation pursuant to paragraph 9, a), or the result of the conversion in paragraph 9, b), as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.»
5 - Paragraph 10 is replaced by the following text:
«10 - For the purpose of this article the ship's tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement regulations contained in annex I of the International Convention on Tonnage Measurement of Ships, 1969.»
6) The second sentence of paragraph 11 is replaced by the following text:
«Such a fund may be constituted even if, under the provisions of paragraph 2, the owner is not entitled to limit his liability, but its constitution shall in that case not prejudice the rights of any claimant against the owner.»
Article 7
Article VII of the 1969 Liability Convention is amended as follows:
1) The first two sentences of paragraph 2 are replaced by the following text:
«A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a Contracting State has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a Contracting State such certificate shall be issued or certified by the appropriate authority of the State of the ship's registry; with respect to a ship not registered in a Contracting State it may be issued or certified by the appropriate authority of any Contracting State.»
2) Paragraph 4 is replaced by the following text:
«4 - The certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship's registry or, if the ship is not registered in a Contracting State, with the authorities of the State issuing or certifying the certificate.»
3) The first sentence of paragraph 7 is replaced by the following text:
«Certificates issued or certified under the authority of a Contracting State in accordance with paragraph 2 shall be accepted by other Contracting States for the purposes of this Convention and shall be regarded by other Contracting States as having the same force as certificates issued or certified by them even if issued or certified in respect of a ship not registered in a Contracting State.»
4) In the second sentence of paragraph 7 the words «with the State of a ship's registry» are replaced by the words «with the issuing or certifying State».
5) The second sentence of paragraph 8 is replaced by the following text:
«In such case the defendant may, even if the owner is not entitled to limit his liability according to article V, paragraph 2, avail himself of the limits of liability prescribed in article V, paragraph 1.»
Article 8
Article IX of the 1969 Liability Convention is amended as follows:
Paragraph 1 is replaced by the following text:
«1 - Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States. Reasonable notice of any such action shall be given to the defendant.»
Article 9
After article XII of the 1969 Liability Convention two new articles are inserted as follows:
«Article XII-bis
Transitional provisions
The following transitional provisions shall apply in the case of a State which at the time of an incident is a Party both to this Convention and to the 1969 Liability Convention:
Where an incident has caused pollution damage within the scope of this Convention, liability under this Convention shall be deemed to be discharged if, and to the extent that, it also arises under the 1969 Liability Convention;
Where an incident has caused pollution damage within the scope of this Convention, and the State is a Party both to this Convention and to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, liability remaining to be discharged after the application of subparagraph a) of this article shall arise under this Convention only to the extent that pollution damage remains uncompensated after application of the said 1971 Convention;
In the application of article III, paragraph 4, of this Convention the expression 'this Convention' shall be interpreted as referring to this Convention or the 1969 Liability Convention, as appropriate;
In the application of article V, paragraph 3, of this Convention the total sum of the fund to be constituted shall be reduced by the amount by which liability has been deemed to be discharged in accordance with subparagraph a) of this article.
Article XII-ter
Final clauses
The final clauses of this Convention shall be articles 12 to 18 of the Protocol of 1992 to amend the 1969 Liability Convention. References in this Convention to Contracting States shall be taken to mean references to the Contracting States of that Protocol.»
Article 10
The model of a certificate annexed to the 1969 Liability Convention is replaced by the model annexed to this Protocol.
Article 11
1 - The 1969 Liability Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.
2 - Articles I to XII-ter, including the model certificate, of the 1969 Liability Convention as amended by this Protocol shall be known as the International Convention on Civil Liability for Oil Pollution Damage, 1992 (1992 Liability Convention).
Final clauses
Article 12
Signature, ratification, acceptance, approval and accession
1 - This Protocol shall be open for signature at London front 15 January 1993 to 14 January 1994 by all States.
2 - Subject to paragraph 4, any State may become a Party to this Protocol by:
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