Merchant Shipping (International Oil Pollution Compensation Fund) Act, 2013 (Act No. 24 of 2013)

Protocol

Part A2 : Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971

General Provisions
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Article 1

 

The Convention which the provisions or this Protocol amend is the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, hereinafter referred to as the "1971 Fund Convention". For States Parties to the Protocol of 1976 to the 1971 Fund Convention, such reference shall be deemed to include the 1971 Fund Convention as amended by that Protocol.

 

Article 2

 

Article 1 of the 1971 Fund Convention is amended as follows:

 

Paragraph 1 is replaced by the following text:

 

1. "1992 Liability Convention" means the International Convention on Civil Liability for Oil Pollution Damage, 1992.

 

2. After paragraph 1 a new paragraph is inserted as follows: of an International Fund for Compensation for Oil Pollution Damage, 1971. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1971 Fund Convention as amended by that Protocol.

 

3. Paragraph 2 is replaced by the following text:

2. "Ship", "Person", "Owner", "Oil", "Pollution Damage", Preventive Measures", "Incident", and "Organization" have the same meaning as in Article I of the 1992 Liability Convention.

 

4. Paragraph 4 is replaced by the following text:

4. ''Unit of account" has the same meaning as in Article V, paragraph 9, of the 1992 Liability Convention.

 

5. Paragraph 5 is replaced by the following text:

5. "Ship's tonnage" has the same meaning as in Article V. paragraph 10, of the 1992 Liability Convention.

 

6. Paragraph 7 is replaced by the following text:

7. "Guarantor" means any person providing insurance or other financial security to cover an owner's liability in pursuance of Article VII, paragraph 1, of the 1992 Liability Convention.

 

Article 3

 

Article 2 of the 1971 Fund Convention is amended as follows:

 

Paragraph 1 is replaced by the following text:

 

1. An international Fund for compensation for pollution damage, to be named "The International Oil Pollution Compensation Fund 1992" and hereinafter referred to as "the Fund", is hereby established with the following aims:
(a) to provide compensation for pollution damage to the extent that the protection afforded by the 1992 Liability Convention is inadequate;
(b)to give effect to the related purposes set out in this Convention.

 

Article 4

 

Article 3 of the 1971 Fund Convention is replaced by the following text:

 

This Convention shall apply exclusively:

(a) to pollution damage caused:
(i) 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;
(b) to preventive measures, wherever taken, to prevent or minimize such damage.

 

Article 5

 

The heading to Articles 4 to 9 of the 1971 Fund Convention is amended by deleting the words "and indemnification".

 

Article 6

 

Article 4 of the 1971 Fund Convention is amended as follows:

 

1. In paragraph I the five references to "the Liability Convention" are replaced by references to "tile 1992 Liability Convention".

 

2. Paragraph 3 is replaced by the following text:

3. If the Fund proves that the pollution damage resulted wholly or partially either from an act or omission done with the intent to cause damage by the person who suffered the damage or from the negligence of that person, the Fund may be exonerated wholly or partially from its obligation to pay compensation to such person. The Fund shall in any event be exonerated to the extent that the shipowner may have been exonerated under Article III, paragraph 3, of the 1992 Liability Convention. However, there shall be no such exoneration of the Fund with regard to preventive measures.

 

3.Paragraph 4 is replaced by the following text:

4.

(a) Except as otherwise provided in subparagraphs (b) and (c) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the 1992 Liability Convention for pollution damage within the scope of application of this Convention as defined in Article 3 shall not exceed 135 million units of account.
(b) Except as otherwise provided in subparagraph (c), the aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional inevitable and irresistible character shall not exceed 135 million units of account.
(c) The maximum amount of compensation referred to in subparagraphs (a) and (b) shall be 200 million units of account with respect to any incident occurring during any period when there are three Parties to this Convention in respect of which the combined relevant quantity of contributing oil received by persons in the territories of such Parties, during the preceding calendar year, equalled or exceeded 600 million tons.
(d) Interest accrued on a fund constituted in accordance with Article V, paragraph 3, of the 1992 Liability Convention, if any, shall not be taken into account for the computation of the maximum compensation payable by the Fund under this Article.
(e) The amounts mentioned in this Article 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 decision of the Assembly of the Fund as to the first date of payment of compensation.

 

4.Paragraph 5 is replaced by the following text:

5. Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, 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 Convention shall be the same for all claimants.

 

5.Paragraph 6 is replaced by the following text:

6. The Assembly of the Fund may decide that, in exceptional cases, compensation in accordance with this Convention can be paid even if the owner of the ship has not constituted a fund in accordance with Article V. paragraph 3, of the 1992 Liability Convention. In such case paragraph 4(e) of this Article applies accordingly.

 

Article 7

 

Article 5 of the 1971 Fund Convention is deleted.

 

Article 8

 

Article 6 of the 1971 Fund Convention is amended as follows:

 

1. In paragraph 1 the paragraph number and the words "or indemnification under Article 5" are deleted.

 

2. Paragraph 2 is deleted.

 

Article 9

 

Article 7 of the 1971 Fund Convention is amended as follows:

 

1. In paragraphs 1, 3, 4 and 6 the seven references to "the Liability Convention" are replaced by references to "the 1992 Liability Convention".

 

2. In paragraph 1 the words "or indemnification under Article 5' are deleted.

 

3. In the first sentence of paragraph 3 the words "or indemnification" and "or 5'' are deleted.

 

4. In the second sentence of paragraph 3 the words "or under Article 5, paragraph 1," are deleted.

 

Article 10

 

In Article 8 of the 1971 Fund Convention the reference to "the Liability Convention" is replaced by a reference to "the 1992 Liability Convention".

 

Article 11

 

Article 9 of the 1971 Fund Convention is amended as follows:

Paragraph 1 is replaced by the following text:

1. The Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund in accordance with Article 4, paragraph 1, of this Convention, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor.
2. In paragraph 2 the words "or indemnification" are deleted.

 

Article 12

 

Article 10 of the 1971 Fund Convention is amended as follows:

 

The opening phrase of paragraph 1 is replaced by the following text:

Annual contributions to the Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in Article 12, paragraph 2(a) or (b), has received in total quantities exceeding 150,000 tons:

 

Article 13

 

Article 11 of the 1971 Fund Convention is deleted.

 

Article 14

 

Article 12 of the 1971 Fund Convention is amended as follows:

 

1. In the opening phrase of paragraph 1 the words "for each person referred to in Article 10" are deleted.

 

2. In paragraph 1(i), subparagraphs (b) and (c), the words "or 5" are deleted and the words "15 million francs" are replaced by the words "four million units of account".

 

3. Subparagraph 1(ii)(b) is deleted.

 

4. In paragraph 1(ii), subparagraph (c) becomes (b) and subparagraph (d) becomes (c).

 

5. The opening phrase in paragraph 2 is replaced by the following text:

The Assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director shall, in respect of each Contracting State. calculate for each person referred to in Article 10 the amount of his annual contribution:

 

6. Paragraph 4 is replaced by the following text:

4. The annual contribution shall be due on the date to be laid down in the Internal Regulations of the Fund. The Assembly may decide on a different date of payment.

 

7. Paragraph 5 is replaced by the following text:

5. The Assembly may decide, under conditions to be laid down in the Financial Regulations of the Fund, to make transfers between funds received in accordance with Article 12.2(a) and funds received in accordance with Article 12.2(b).

 

8.Paragraph 6 is deleted.

 

Article 15

 

Article 13 of the 1971 Fund Convention is amended as follows:

 

Paragraph 1 is replaced by the following text:

 

1. The amount of any contribution due under Article 12 and which is in arrears shall bear interest at a rate which shall be determined in accordance with the Internal Regulations of the Fund, provided that different rates may be fixed for different circumstances.

 

2. In paragraph 3 the words "Articles 10 and 11" are replaced by the words "Articles 10 and 12" and the words "for a period exceeding three months" are deleted.

 

Article 16

 

A new paragraph 4 is added to Article 15 of the 1971 Fund Convention:

4. Where a Contracting State does not fulfil its"obligations to submit to the Director the communication referred to in paragraph 2 and this results in a financial loss for the Fund, that Contracting State shall be liable to compensate the Fund for such loss. The Assembly shall, on the recommendation of the Director, decide whether such compensation shall be payable by that Contracting State.

 

Article 17

 

Article 16 of the 1971 Fund Convention is replaced by the following text:

The Fund shall have an Assembly and a Secretariat headed by a Director.

 

Article 18

 

Article 18 of the 1971 Fund Convention is amended as follows:

1. In the opening sentence of the article the words '', subject to the provisions of Article 26," are deleted.

 

2. Paragraph 8 is deleted.

 

3. Paragraph 9 is replaced by the fol lowing text:

9. to establish any temporary or permanent subsidiary body it may consider to be necessary, to define its terms of reference and to give it the authority needed to perform the functions entrusted to it; when appointing the members of such body, the Assembly shall endeavour to secure an equitable geographical distribution of members and to ensure that the Contracting States, in respect of which the largest quantities of contributing oil are being received, are appropriately represented; the Rules of Procedure of the Assembly may be applied, mutatis mutandis, for the work of such subsidiary body;

 

4. In paragraph 10 the words ", the Executive Committee," are deleted.

 

5. In paragraph 11 the words ", the Executive Committee" are deleted.

 

6. Paragraph 12 is deleted.

 

Article 19

 

Article 19 of the 1971 Fund Convention is amended as follows:

 

1. Paragraph 1 is replaced by the following text:

1. Regular sessions of the Assembly shall take place once every calendar year upon convocation by the Director.

 

2. In paragraph 2 the words "of the Executive Committee or" are deleted.

 

Article 20

 

Articles 21 to 27 of the 1971 Fund Convention and the heading to these articles are deleted.

 

Article 21

 

Article 29 of the 1971 Fund Convention is amended as follows:

Paragraph 1 is replaced by the following text:

1. The Director shall be the chief administrative officer of the Fund. Subject to the instructions given to him by the Assembly, he shall perform those functions which are assigned to him by this Convention, the Internal Regulations of the Fund and the Assembly.

 

2. In paragraph 2(e) the words "or the Executive Committee" are deleted.

 

3. In paragraph 2(f) the words "or to the Executive Committee, as the case may be," are deleted.

 

4. Paragraph 2(g) is replaced by the following text:

(g) prepare, in consultation with the Chairman of the Assembly, and publish a report of the activities of the Fund during the previous calendar year;

 

5. In paragraph 2(h) the words ", the Executive Committee" are deleted.

 

Article 22

 

In Article 31, paragraph 1, of the 1971 Fund Convention, the words "on the Executive Committee and" are deleted.

 

Article 23

 

Article 32 of the 1971 Fund Convention is amended as follows:

 

1.In the opening phrase the words "and the Executive Committee" are deleted.

 

2.In subparagraph (b) the words "and the Executive Committee" are deleted.

 

Article 24

 

Article 33 of the 1971 Fund Convention is amended as follows:

 

1. Paragraph 1 is deleted.

 

2.In paragraph 2 the paragraph number is deleted.

 

3. Subparagraph (c) is replaced by the following text:

(c) the establishment of subsidiary bodies, under Article 18, paragraph 9, and matters relating to such establishment.

 

Article 25

 

Article 35 of the 1971 Fund Convention is replaced by the following text:

Claims for compensation under Article 4 arising from incidents occurring after the date of entry into force of this Convention may not be brought against the Fund earlier than the one hundred and twentieth day after that date.

 

Article 26

 

After Article 36 of the 1971 Fund Convention four new articles are inserted as follows:

 

Article 36 bis

 

The following transitional provisions shall apply in the period, hereinafter referred to as the transitional period, commencing with the date of entry into force of this Convention and ending with the date on which the denunciations provided for in Article 31 of the 1992 Protocol to amend the 1971 Fund Convention take effect:

(a) In the application of paragraph 1(a) of Article 2 of this Convention, the reference to the 1992 Liability Convention shall include reference to the International Convention on Civil Liability for Oil Pollution Damage, 1969, either in its original version or as amended by the Protocol thereto of 1976 (referred to in this Article as "the 1969 Liability Convention"), and also the 1971 Fund Convention.
(b) Where an incident has caused pollution damage within the scope of this Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1969 Liability Convention, the 1971 Fund Convention and the 1992 Liability Convention, provided that, in respect of pollution damage within the scope of this Convention in respect of a Party to this Convention but not a Party to the 1971 Fund Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person would have been unable to obtain full and adequate compensation had that State been party to each of the above-mentioned Conventions.
(c) En the application of Article 4 of this Convention, the amount to be taken into account in determining the aggregate amount of compensation payable by the Fund shall also include the amount of compensation actually paid under the 1969 Liability Convention, if any, and the amount of compensation actually paid or deemed to have been paid under the 1971 Fund Convention.
(d) Paragraph 1 of Article 9 of this Convention shall also apply to the rights enjoyed under the 1969 Liability Convention.

 

Article 36 ter

 

1. Subject to paragraph 4 of this Article, the aggregate amount of the annual contributions payable in respect of contributing oil received in a single Contracting State during a calendar year shall not exceed 27.5% of the total amount of annual contributions pursuant to the 1992 Protocol to amend the 1971 Fund Convention, in respect of that calendar year.

 

2. If the application of the provisions in paragraphs 2 and 3 of Article 12 would result in the aggregate amount of the contributions payable by contributors in a single Contracting State in respect of a given calendar year exceeding 27.5% of the total annual contributions, the contributions payable by all contributors in that State shall be reduced pro rata so that their aggregate contributions equal 27.5% of the total annual contributions to the Fund in respect of that year.

 

3. If the contributions payable by persons in a given Contracting State shall be reduced pursuant to paragraph 2 of this Article, the contributions payable by persons in all other Contracting States shall be increased pro rata so as to ensure that the total amount of contributions payable by all persons liable to contribute to the Fund in respect of the calendar year in question will reach the total amount of contributions decided by the Assembly.

 

4. The provisions in paragraphs 1 to 3 of this Article shall operate until the total quantity of contributing oil received in all Contracting States in a calendar year has reached 750 million tons or until a period of 5 years after the date of entry into force of the said 1992 Protocol has elapsed, whichever occurs earlier.

 

Article 36 quater

 

Notwithstanding the provisions of this Convention, the following provisions shall apply to the administration of the Fund during the period in which both the 1971 Fund Convention and this Convention are in force:

(a) The Secretariat of the Fund, established by the 1971 Fund Convention (hereinafter referred to as "the 1971 Fund"), headed by the Director, may also function as the Secretariat and the Director of the Fund.
(b) If, in accordance with subparagraph (a), the Secretariat and the Director of the 1971 Fund also perform the function of Secretariat and Director of the Fund, the Fund shall be represented, in cases of conflict of interests between the 1971 Fund and the Fund, by the Chairman of the Assembly of the Fund.
(c) The Director and the staff and experts appointed by him, performing their duties under this Convention and the 1971 Fund Convention, shall not be regarded as contravening the provisions of Article 30 of this Convention in so far as they discharge their duties in accordance with this Article.
(d) The Assembly of the Fund shall endeavour not to take decisions which are incompatible with decisions taken by the Assembly of the 1971 Fund. If differences of opinion with respect to common administrative issues arise, the Assembly of the Fund shall try to reach a consensus with the Assembly of the 1971 Fund, in a spirit of mutual co-operation and with the common aims of both organizations in mind.
(e) The Fund may succeed to the rights, obligations and assets of the 1971 Fund if the Assembly of the 1971 Fund so decides, in accordance with Article 44, paragraph 2, of the 1971 Fund Convention.
(f) The Fund shall reimburse to the 1971 Fund all costs and expenses arising from administrative services performed by the 1971 Fund on behalf of the Fund.

 

Article 36 quinquies

 

Final clauses

 

The final clauses of this Convention shall be Articles 28 to 39 of the Protocol of 1992 to amend the 1971 Fund Convention. References in this Convention to Contracting States shall be taken to mean references to the Contracting States of that Protocol.

 

Article 27

 

1. The 1971 Fund Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.

 

2. Articles 1 to 36 quinquies of the 1971 Fund Convention as amended by this Protocol shall be known as the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (1992 Fund Convention).