MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION) ORDINANCE
MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION) ORDINANCE
(CHAPTER 414)
ARRANGEMENT OF SECTIONS
Section
PART I PRELIMINARY
1. Short title
2. Interpretation
3. Certificate as to parties to Conventions
4. Calculation of tonnage
PART II LIABILITY FOR OIL POLLUTION AND COMPULSORY INSURANCE
5. Interpretation of Part II
6. Liability for oil pollution
7. Exceptions from liability under section 6
8. Restriction of liability for oil pollution
9. Limitation of liability under section 6
10. Limitation actions
11. Restriction on enforcement of claims after establishment of limitation
fund
12. Concurrent liabilities of owners and others
13. Establishment of limitation fund outside Hong Kong
14. Extinguishment of claims under Part II
15. Compulsory insurance against liability for oil pollution
16. Issue of certificate by Director
17. Rights of third parties against insurers
18. Jurisdiction of Hong Kong courts and registration of foreign judgments
19. Warships, etc.
20. Liability for cost of preventive measures where section 6 does not
apply
21. Saving for recourse actions
PART III THE INTERNATIONAL OIL POLLUTION COMPENSATION FUND
22. Interpretation of Part III
23. Contributions to the Fund
24. Power to obtain information
25. Liability of the Fund for pollution damage
26. Indemnification of ship owner where ship registered in Fund Convention
country
27. Effect of judgments
28. Extinguishment of claims under Part III
29. Subrogation and rights of recourse
PART IV MISCELLANEOUS
30. Offences by bodies corporate
31. Fees
32. Amendments, Savings and Repeals
Schedule 1. Overall limit on liability of Fund
Schedule 2. (Omitted)
An Ordinance to provide for compensation for pollution caused by the
discharge or escape of oil from oil-carrying ships and for the liability
of shipowners; for compulsory insurance in respect of such liability; for
contributions by oil importers and others to the International Fund for
Compensation for Oil Pollution Damage; for the liability of the Fund in
certain circumstances for such pollution; for the indemnification of
shipowners by the Fund; and for incidental or related matters.
[15 January 1991] L. N. 13 of 1991
PART I Preliminary
1. Short title
This Ordinance may be cited as the Merchant Shipping (Liability and
Compensation for Oil Pollution) Ordinance.
2. Interpretation
(1) In this Ordinance, unless the context otherwise requires-
"cost" includes expenses;
"country" includes any territory;
"court" means the High Court or a judge thereof;
"damage" includes loss;
"Director" means the Director of Marine;
"Fund Convention" means the International Convention on the establishment
of an International Fund for Compensation for Oil Pollution Damage opened
for signature in Brussels on 18 December 1971;
"Hong Kong ship" means a ship registered in Hong Kong;
"Liability Convention" means the International Convention on Civil
Liability for Oil Pollution Damage opened for signature in Brussels on 29
November 1969;
"owner", in relation to a ship, means the person or persons registered as
the owner of the ship or, in the absence of registration, the person or
persons owning the ship, except that in relation to a ship owned by a
State which is operated by a person registered as the ship's operator, it
means the person registered as its operator; (Amended 74 of 1990 s. 104
(3))
"pollution damage" means damage caused outside a ship carrying oil by
contamination resulting from the discharge or escape of oil from the ship,
wherever the discharge or escape may occur, and includes the cost of
preventive measures and damage caused by preventive measures;
"preventive measures" means any reasonable measures taken by any person
after a discharge or escape of oil from a ship to prevent or reduce
pollution damage;
"ship" means any sea-going vessel or seaborne craft of any type
whatsoever, carrying oil in bulk as cargo;
"special drawing rights" means units of account used by the International
Monetary Fund and known as special drawing rights;
"terminal installation" means any site for the storage of oil in bulk
which is capable of receiving oil from waterborne transportation,
including any facility situated offshore and linked to any such site.
(2) For the purposes of this Ordinance, where more than one discharge or
escape results from the same occurrence or from a series of occurrences
having the same origin, they shall be treated as one; but any measures
taken after the first of them shall be deemed to have been taken after the
discharge or escape.
(3) References in this Ordinance to the area of any country include the
territorial sea of that country.
3. Certificate as to parties to Conventions
A certificate signed by the Governor and certifying that a State specified
in the certificate-
(a) is a party to the Liability Convention in respect of a country
specified in the certificate; or
(b) is a party to the Fund Convention in respect of a country specified in
the certificate,
shall be conclusive evidence of the matters contained therein and shall in
any legal proceedings under this Ordinance to which it relates be
admissible on its production and without further proof.
4. Calculation of tonnage
For the purposes of this Ordinance, the tonnage of a ship shall be
ascertained as follows-
(a) where the register tonnage of the ship has been or can be ascertained
in accordance with the Merchant Shipping (Tonnage) Regulations (App. I,
AB1), the ship's tonnage shall be the register tonnage of the ship as so
ascertained but without making any deduction required by those regulations
of any tonnage allowance for propelling machinery space;
(b) where the ship is of a class or description with respect to which no
provision is for the time being made by the Merchant Shipping (Tonnage)
Regulations, the tonnage of the ship shall be taken to be 40% of the
weight (expressed in tons of 2 240 lbs) of oil which the ship is capable
of carrying;
(c) where the tonnage of the ship can not be ascertained in accordance
with either paragraph (a) or (b), the Director shall, if so directed by
the court in any proceedings, certify what, on the evidence specified in
the direction, would in his opinion be the tonnage of the ship as
ascertained in accordance with paragraph (a) or (b), as the case may be,
if the ship could be duly measured for the purpose; and the tonnage stated
in his certificate shall be taken to be the tonnage of the ship.
PART II LIABILITY FOR OIL POLLUTION AND COMPULSORY INSURANCE
5. Interpretation of Part II
(1) In this Part-
"Liability Convention country" means a country in respect of which the
Liability Convention is in force; and
"Liability Convention State" means a State which is a party to the
Liability Convention.
(2) In relation to any pollution damage resulting from the discharge or
escape of any oil carried in a ship references in this Part to the owner
of the ship are references to the owner at the time of the occurrence
resulting in the discharge or escape or, if there is more than one such
occurrence, at the time of the first of such occurrences.
(3) References in this Part to the Merchant Shipping Act 1979 (1979 c. 39
U. K.) are references to that Act as it applies in Hong Kong.
6. Liability for oil pollution
(1) Where, as a result of any occurrence taking place while a ship is
carrying a cargo of persistent oil in bulk, any persistent oil carried by
the ship (whether as part of the cargo or otherwise) is discharged or
escapes from the ship, the owner of the ship shall be liable, except as
otherwise provided by this Ordinance, for any pollution damage caused in
Hong Kong.
(2) Where-
(a) a liability arises under subsection (1); and
(b) the discharge or escape by reason of which the liability arose also
results in pollution damage in the area of a Liability Convention country
other than Hong Kong, the owner of the ship concerned shall also be liable
under subsection (1) for that damage as if the damage had occurred in Hong
Kong.
(3) Where persistent oil is discharged or escapes from 2 or more ships
and-
(a) a liability is incurred under this section by the owner of each of
them; but
(b) the pollution damage for which each of the owners would, apart from
this subsection, be liable cannot reasonably be separated from that for
which the other or others would be liable,
each of the owners shall be liable, jointly with the other or others, for
the whole of that damage for which the owners together would be liable
under this section.
(4) Section 21 of the Law Amendment and Reform (Consolidation) Ordinance
(Cap. 23) shall apply in relation to any pollution damage for which a
person is liable under this section, but which is not due to his fault, as
if it were due to his fault.
7. Exceptions from liability under section 6
The owner of a ship from which persistent oil has been discharged or has
escaped shall not incur any liability under section 6 if he proves that
the discharge or escape-
(a) resulted from an act of war, hostilities, civil war, insurrection or
an exceptional, inevitable and irresistible natural phenomenon; or
(b) was due wholly to anything done or left undone by another person, not
being a servant or agent of the owner, with intent to do damage; or
(c) was due wholly to the negligence or wrongful act of a government or
other authority in exercising its function of maintaining lights or other
navigational aids for the maintenance of which it was responsible.
8. Restriction of liability for oil pollution
Where, as a result of any occurrence taking place while a ship is carrying
a cargo of persistent oil in bulk, any persistent oil carried by the ship
(whether as part of the cargo or otherwise) is discharged or escapes then,
whether or not the owner incurs a liability under section 6,-
(a) he shall not be liable otherwise than under that section for any such
pollution damage as is mentioned therein; and
(b) no servant or agent of the owner and no person performing salvage
operations with the agreement of the owner shall be liable for any such
damage.
9. Limitation of liability under section 6
Where the owner of a ship incurs a liability under section 6 by reason of
a discharge or escape which occurred without his actual fault or privity,
he may limit that liability in accordance with this Ordinance, and if he
does so his liability (that is to say, the aggregate of his liabilities
under section 6 resulting from the discharge or escape) shall not exceed-
(a) 133 special drawing rights for each ton of the ship's tonnage; or
(b) 14,000,000 special drawing rights, whichever amount is the less.
10. Limitation actions
(1) Where the owner of a ship has or is alleged to have incurred a
liability under section 6 he may apply to the court in accordance with
rules of court for the limitation of that liability to an amount
determined in accordance with section 9.
(2) If on such an application the court finds that the applicant has
incurred such a liability and is entitled to limit it, the court shall
determine the limit of the liability and direct payment into court of the
amount of that limit, and shall then
(a) determine the amounts that would, apart from the limit, be due in
respect of the liability to the several persons making claims in the
proceedings under this section; and
(b) direct the distribution of the amount paid into court (or, as the case
may be, so much of it as does not exceed the liability) among those
persons in proportion to their claims subject to the following provisions
of this section.
(3) A payment into court of the amount of a limit determined under this
section shall be made in Hong Kong dollars and-
(a) for the purposes of converting such an amount from special drawing
rights into Hong Kong dollars the Monetary Authority may certify, in Hong
Kong dollars, the respective amounts which are to be taken as equivalent
for a particular day to the sums expressed in special drawing rights in
section 9;
(b) a certificate signed by or on behalf of the Monetary Authority under
paragraph (a) shall be conclusive evidence of the matters contained
therein and shall in legal proceedings under this Ordinance to which it
relates be admissible on its production and without further proof.
(Amended 82 of 1992 s. 44)
(4) No claim shall be made in proceedings under this section except within
such time as the court may direct or such further time as the court may
allow.
(5) Where any sum has been paid in or towards satisfaction of any claim in
respect of the pollution damage to which the liability referred to in
subsection (1) extends-
(a) by the owner or the person referred to in section 17 as "the insurer";
or
(b) by a person who has or is alleged to have incurred a liability,
otherwise than under section 6, for that damage and who is entitled to
limit his liability in connection with the ship by virtue of the Merchant
Shipping Act 1979 (1979 c. 39 U. K.), the person who paid the sum shall,
to the extent of that sum, be in the same position with respect to any
distribution made in proceedings under this section as the person to whom
it was paid would, apart from this subsection, have been, and the
distribution shall be made accordingly.
(6) Where the owner who incurred the liability referred to in subsection
(1) has voluntarily made any reasonable sacrifice or taken any other
reasonable measures to prevent or reduce pollution damage to which the
liability extends or might have extended he shall be in the same position
with respect to any distribution made in proceedings under this section as
if he had established a claim in respect of the liability for an amount
equal to the cost of the sacrifice or other measures, and the distribution
shall be made accordingly.
(7) The court may, if it thinks fit, postpone the distribution of such
part of the amount to be distributed as it deems appropriate having regard
to any claims that may later be established before a court outside Hong
Kong.
11. Restriction on enforcement of claims after establishment of limitation
fund
Where the court has found that a person who has incurred a liability under
section 6 is entitled to limit that liability to any amount and he has
paid into court a sum not less than that amount-
(a) the court shall order the release of any ship or other property
arrested in connection with a claim in respect of that liability or any
security given to prevent or obtain release from such an arrest; and
(b) no judgment or decree for any such claim shall be enforced, except so
far as it is for costs,
the sum paid into court, or such part thereof as corresponds to the claim,
will be actually available to the claimant or would have been available to
him if the proper steps in the proceedings under section 10 had been
taken.
12. Concurrent liabilities of owners and others
Where, as a result of any discharge or escape of persistent oil from a
ship, he owner of the ship incurs a liability under section 6 and any
other person incurs a liability, otherwise than under that section, for
any such pollution damage as is mentioned in subsection (1) of that
section, then, if-
(a) the owner has been found, in proceedings under section 10, to be
entitled to limit his liability to any amount and has paid into court a
sum not less than that amount; and
(b) the other person is entitled to limit his liability in connection with
the ship by virtue of the Merchant Shipping Act 1979 (1979 c. 39 U. K.),
no proceedings shall be taken against the other person in respect of his
liability, and if any such proceedings were commenced before the owner
paid the sum into court, no further steps shall be taken in the
proceedings except in relation to costs.
13. Establishment of limitation fund outside Hong Kong
Where the events resulting in the liability of any person under section 6
also result in a corresponding liability under the law of a Liability
Convention country other than Hong Kong, sections 11 and 12 shall apply as
if the references to sections 6 and 10 included references to the
corresponding provisions of that law and the references to sums paid into
court included references to any sums secured under those provisions in
respect of the liability.
14. Extinguishment of claims under Part II
No action to enforce a claim in respect of a liability incurred under
section 6 shall be brought in any court in Hong Kong unless the action is
commenced not later than 3 years after the claim arose and not later than
6 years after the occurrence or, if there is more than one such
occurrence, the first of such occurrences resulting in the discharge or
escape by reason of which the liability was incurred.
15. Compulsory insurance against liability for oil pollution
(1) Subject to section 19, subsection (2) applies to any ship carrying in
bulk a cargo of more than 2,000 tons of persistent oil as defined in
regulations made under this section.
(2) A ship to which this subsection applies shall not enter or leave-
(a) the waters of Hong Kong; or
(b) if the ship is a Hong Kong ship, a port in any other country or a
terminal installation in the territorial sea of any other country, unless
there is in force a certificate complying with subsection (4) and
certifying that there is in force in respect of the ship a contract of
insurance or other security satisfying the requirements of Article VII of
the Liability Convention.
(3) For the purposes of subsection (2) and section 16 (1), references in
Article VII of the Liability Convention to Article V thereof shall be
construed as references to Article V as amended by Article II of the
Protocol dated 19 November 1976 to the Liability Convention.
(4) A certificate referred to in subsection (2) must be-
(a) if the ship is a Hong Kong ship, issued by the Director under section
16;
(b) if the ship is registered in a Liability Convention country other
than Hong Kong, issued by or under the authority of the government of the
other Liability Convention country; or
(c) if the ship is registered in a country which is not a Liability
Convention country, recognized for the purposes of this paragraph by
regulations made under this section.
(5) The Governor in Council may by regulations-
(a) define "persistent oil" for the purpose of subsection (1);
(b) provide that certificates in respect of ships registered in any
country which is not a Liability Convention country shall, in such
circumstances as may be specified in the regulations, be recognized for
the purposes of subsection (4) (c) if issued by or under the authority of
the government of a designated country; and in this subsection "designated
country" in relation to a certificate in respect of a ship, means-
(i) the country in which the ship is registered;
(ii) any country specified in the regulations for the purposes of this
subsection.
(6) A certificate required by this section shall at all times be carried
in the ship to which it relates and shall, on demand, be produced by the
master to the Director or any officer of the Marine Department authorized
by him.
(7) If a ship contravenes subsection (2), the master and the owner of the
ship each commits an offence and is liable-
(a) on conviction upon indictment, to a fine of $500,000; and
(b) on summary conviction to a fine of $100,000.
(8) If a ship fails to carry, or the master of a ship fails to produce, a
certificate as required by subsection (6) the master commits an offence
and is liable to a fine of $5,000.
(9) The Director may detain any ship which attempts to leave the waters of
Hong Kong in contravention of this section.
16. Issue of certificate by Director
(1) Subject to subsection (2), the Director shall, if he is satisfied, on
an application for a certificate referred to in section 15 in respect of a
Hong Kong ship, that there will be in force in respect of the ship,
throughout the period for which the certificate is to be issued, a
contract of insurance or other security satisfying the requirements of
Article VII of the Liability Convention, issue such a certificate to the
owner.
(2) If the Director is of opinion that there is a doubt whether the person
providing the insurance or other security will be able to meet his
obligations thereunder, or whether the insurance or other security will
cover the owner's liability under section 6 in all circumstances, he may
refuse to issue the certificate.
(3) The Governor in Council may by regulations-
(a) prescribe the fee to be paid on an application for a certificate under
this section; and
(b) provide for the cancellation and delivery up of such a certificate in
such circumstances as may be prescribed by the regulations.
(4) A person required by regulations made under subsection (3) to deliver
up a certificate who without reasonable excuse fails to do so commits an
offence and is liable to a fine of $5,000.
(5) The Director shall retain a copy of any certificate issued by him
under this section in respect of a Hong Kong ship and shall make the copy
available for public inspection.
17. Rights of third parties against insurers
(1) Where it is alleged that the owner of a ship has incurred a liability
under section 6 as a result of any discharge or escape of oil from the
ship occurring while there was in force a contract of insurance or other
security to which a certificate referred to in section 15 related, legal
proceedings to enforce a claim in respect of the liability may be brought
against the person who provided the insurance or other security (in this
section referred to as "the insurer").
(2) In any proceedings brought against the insurer by virtue of this
section it shall be a defence (in addition to any defence affecting the
owner's liability) to prove that the discharge or escape was due to the
wilful misconduct of the owner himself.
(3) The insurer may under section 10 limit his liability in respect of
claims made against him by virtue of this section in like manner and to
the same extent as the owner may limit his liability but the insurer may
do so whether or not the discharge or escape occurred without the owner's
actual fault or privity.
(4) Where the owner and the insurer each apply to the court under section
10 for the limitation of his liability any sum paid into court in
pursuance of either application shall be treated as paid also in pursuance
of the other.
(5) The Third Parties (Rights against Insurers) Ordinance (Cap. 273) shall
not apply in relation to any contract of insurance to which a certificate
referred to in section 15 relates.
18. Jurisdiction of Hong Kong courts and registration of foreign judgments
(1) Where any persistent oil is discharged or escapes from a ship but does
not cause any pollution damage in Hong Kong, no action (whether in rem or
in personam) shall be brought in any court in Hong Kong to enforce a claim
arising from any pollution damage resulting from the discharge or escape
in the area of a Liability Convention country other than Hong Kong.
(2) Sections 3 to 9 of the Foreign Judgments (Reciprocal Enforcement)
Ordinance (Cap. 319) shall apply, whether or not they would so apply
apart from this section, to any judgment given by a court in a Liability
Convention country to enforce a claim in respect of a liability incurred
under any law corresponding to section 6; and in the application of those
sections of the Foreign Judgments (Reciprocal Enforcement) Ordinance to
such a judgment, the sections shall have effect as if subsections (2) and
(3) of section 6 of that Ordinance were omitted.
19. Warships, etc.
(1) Nothing in the preceding provisions of this Part applies in relation
to any warship or any ship for the time being used by the government of
any State for a purpose other than a commercial purpose.
(2) In relation to a ship owned by a State and for the time being used for
a commercial purpose it shall be a sufficient compliance with section 15
(2) if there is in force a certificate issued by the government of that
State and certifying that the ship is owned by that State and that any
liability for pollution damage as defined in Article 1 of the Liability
Convention will be met up to the limit prescribed by Article V of the
Liability Convention as amended by Article II of the protocol dated 19
November 1976 to the Liability Convention.
(3) A Liability Convention State shall, for the purposes of any
proceedings brought in a court in Hong Kong to enforce a claim in respect
of a liability incurred under section 6, be deemed to have submitted to
the jurisdiction of that court, and accordingly rules of court may provide
for the manner in which such proceedings are to be commenced and carried
on; but nothing in this subsection shall authorized the issue of execution
against the property of any State.
20. Liability for cost of preventive measures where section 6 does not
apply
(1) Where-
(a) after a discharge or an escape of persistent oil from a ship,
reasonable measures are taken to prevent or reduce damage in Hong Kong
which may be caused by contamination resulting from the discharge or
escape; and
(b) any person incurs, or might but for the measures have incurred, a
liability, otherwise than under section 6, for any such damage,
then, notwithstanding that subsection (1) (b) of that section does not
apply, he shall be liable for the cost of the measures, whether or not the
person taking them does so for the protection of his interests or in the
performance of a duty.
(2) For the purposes of section 17 of the Merchant Shipping Act 1979
(1979c. 39 U. K.) any liability incurred under this section shall be
deemed to be a liability in respect of such damage to property as is
mentioned in paragraph 1 (a) of Article 2 of the Convention in Part I of
Schedule 4 to that Act.
21. Saving for recourse actions
Nothing in this Part shall prejudice any claim, or the enforcement of any
claim, which a person incurring any liability under this Part may have
against another person in respect of that liability.
PART III THE INTERNATIONAL OIL POLLUTION COMPENSATION FUND
22. Interpretation of Part III
(1) In this Part-
"Fund" means the International Fund established by the Fund Convention;
"Fund Convention country" means a country in respect of which the Fund
Convention is in force;
"guarantor" means any person providing insurance or other security of the
kind described in section 15 (2);
"oil", except in sections 23 and 24, means persistent hydrocarbon mineral
oil.
(2) In this Part a franc shall be taken to be a unit of 65 1/2 mg of gold
of millesimal fineness 900.
(3) The Governor may by order specify in Hong Kong dollars the amounts
which for the purposes of this Part are to be taken as equivalent to any
specified number of francs.
23. Contributions to the Fund
(1) Contributions shall be payable to the Fund in respect of oil carried
by sea to ports or terminal installations in Hong Kong.
(2) Subsection (1) applies whether or not the oil is being imported, and
applies even if contributions are payable in respect of carriage of the
same oil on a previous voyage.
(3) Contributions shall also be payable to the Fund in respect of oil when
first received in any terminal installation in Hong Kong after having been
carried by sea and discharged in a port or terminal installation in a
country which is not a Fund Convention country.
(4) The person liable to pay contributions is-
(a) in the case of oil which is being imported, the importer; and
(b) in any other case, the person by whom the oil is received.
(5) A person shall not be liable to make contributions in respect of the
oil imported or received by him in any year if the oil so imported or
received in that year does not exceed 150 000 tonnes.
(6) For the purpose of subsection (5)-
(a) all the companies in a group of companies shall be treated as a single
person; and
(b) any 2 or more companies which have been amalgamated into a single
company shall be treated as the same person as that single company.
(7) The contributions payable by a person for any year shall-
(a) be of such amount as may be determined by the Assembly of the Fund
under Articles 11 and 12 of the Fund Convention and notified to him by the
Fund;
(b) be payable in such instalments, becoming due at such times, as may be
so notified to him,
and if any amount due from him remains unpaid after the date on which it
became due, such amount-
(i) shall from that date bear interest, at a rate determined from time to
time by the Assembly of the Fund, until it is paid; and
(ii) shall, together with such interest, be recoverable as a civil debt
due to the Fund.
(8) The Governor in Council may by regulations require persons who are may
be liable to pay contributions under this section to give security for
payment to the Governor or to the Fund; and such regulations may-
(a) contain such supplemental or incidental provisions as appear to the
Governor in Council expedient; and
(b) provide that a contravention of specified provisions of the
regulations shall be an offence and may provide penalties therefor not
exceeding a fine of $5,000.
(9) In this section and section 24, unless the context otherwise
requires-"company" means a body incorporated under the law of Hong Kong,
or of any other country; "crude oil" means any liquid hydrocarbon mixture
occurring naturally in the earth whether or not treated to render it
suitable for transportation, and includes-
(a) crude oils from which distillate fractions have been removed; and
(b) crude oils to which distillate fractions have been added;
"fuel oil" means heavy distillates or residues from crude oil or blends of
such materials intended for use as a fuel for the production of heat or
power of a quality equivalent to the American Society for Testing and
Materials' Specification for Number Four Fuel Oil (Designation D 396-69),
or heavier;
"group of companies" has the same meaning as in section 2 (1) of the
Companies Ordinance (Cap. 32), and in the case of a company incorporated
outside Hong Kong, has a corresponding meaning subject to any necessary
modifications;
"import" means import into Hong Kong;
"importer" means the person by whom or on whose behalf the oil in question
is entered for customs purposes on importation;
"oil" means crude oil and fuel oil.
(10) In this section "sea" does not include any waters within the
boundaries of Hong Kong as defined in the Second Schedule to the
Interpretation and General Clauses Ordinance (Cap. 1).
24. Power to obtain information
(1) The Governor may, for the purpose of transmitting to the Fund a list
of the names and addresses of the persons who, under section 23, are
liable to make contributions to the Fund for any year, and the quantity of
oil in respect of which they are so liable, by notice in writing require
any person engaged in producing, treating, distributing or transporting
oil to furnish to a person specified in the notice such information as may
be specified in the notice.
(2) A notice under this section may require a company to give such
information as may be required to ascertain whether its liability is
affected by section 23 (6).
(3) A notice under this section may specify the manner in which, and the
time within which, it is to be complied with.
(4) In legal proceedings by the Fund against any person to recover any
amount due under section 23, any particulars contained in any list
transmitted by the Governor to the Fund shall, in so far as those
particulars are based on information obtained under this section, be
admissible as evidence of any relevant fact stated in the list; and in so
far as particulars which are so admissible are based on information given
by the person against whom the proceedings are brought, those particulars
shall be presumed to be accurate until the contrary is proved.
(5) A person who discloses any information which has been furnished to or
obtained by him under this section, or in connection with the execution of
this section, unless the disclosure is made-
(a) with the consent of the person from whom the information was obtained;
or
(b) in connection with the execution of this section; or
(c) for the purposes of any legal proceedings arising out of this section,
or of any report of such proceedings,
commits an offence and is liable to a fine of $5,000.
(6) A person who-
(a) refuses or wilfully neglects to comply with a requirement of a notice
under this section; or
(b) in purporting to comply with a requirement of a notice under this
section makes any statement which he knows to be false in a material
particular, or recklessly makes any statement which is false in a material
particular,
commits an offence and is liable-
(i) on conviction upon indictment, to imprisonment for 1 year and to a
fine of $50,000; or
(ii) on summary conviction, to a fine of $5,000.
25. Liability of the Fund for pollution damage
(1) The Fund shall be liable for pollution damage in Hong Kong if the
person suffering the damage has been unable to obtain full compensation
under section 6-
(a) because the discharge or escape causing the damage-
(i) resulted from an exceptional, inevitable and irresistible natural
phenomenon; or
(ii) was due wholly to anything done or left undone by another person, not
being a servant or agent of the owner, with intent to do damage; or
(iii) was due wholly to the negligence or wrongful act of a government or
other authority in exercising its function of maintaining lights or other
navigational aids for the maintenance of which it was responsible,
(and because liability is accordingly wholly displaced by section 7); or
(b) because the owner or guarantor who is liable for the damage is not
able to meet his obligations in full in respect of that liability; or
(c) because the damage exceeds the liability under section 6 as limited by
section 9.
(2) Where-
(a) a discharge or escape has caused pollution damage both in Hong Kong
and in the area of another Fund Convention country; and
(b) proceedings under the Liability Convention for compensation for the
pollution damage have been brought in a country which is not a Fund
Convention country or in Hong Kong, subsection (1) shall be construed and
have effect as regards that pollution damage as if for "Hong Kong" there
were substituted "the area of a Fund Convention country".
(3) Where the incident has caused pollution damage both in Hong Kong and
in the area of another country in respect of which the Liability
Convention is in force, references in this section to any of the
provisions of Part II shall include references to the corresponding
provisions of the law of any country giving effect to the Liability
Convention.
(4) For the purposes of this section an owner or guarantor is not able to
meet his obligations if the obligations have not been met after all
reasonable steps to pursue the legal remedies available have been taken.
(5) Expenses reasonably incurred, and sacrifices reasonably made, by the
owner voluntarily to prevent or reduce pollution damage shall be treated
as pollution damage for the purposes of this section, and accordingly he
shall be in the same position with respect to claims against the Fund
under this section as if he had established a claim in respect of
liability under section 6.
(6) The Fund shall incur no liability under this section if-
(a) it proves that the pollution damage-
(i) resulted from an act of war, hostilities, civil war or insurrection;
or
(ii) was caused by oil which escaped or was discharged from a warship or
other ship owned or operated by a State and used, at the time of the
occurrence, only on government non-commercial service; or
(b) a claimant cannot prove that the damage resulted from an occurrence
involving a ship identified by him, or involving 2 or more ships one of
which is identified by him.
(7) If the Fund proves that the pollution damage resulted wholly or
partly-
(a) from anything done or left undone with intent to cause damage by the
person who suffered the damage; or
(b) from the negligence of that person,
the Fund may be exonerated wholly or partly from its liability to pay
compensation to that person, but this subsection shall not apply to a
claim in respect of expenses incurred or sacrifices made voluntarily to
prevent or reduce pollution damage.
(8) Where the liability under section 6 is limited to any extent by
subsection (4) of that section, the Fund shall be exonerated to the same
extent.
(9) The Fund's liability under this section shall be subject to the limits
imposed by paragraphs 4, 5 and 6 of Article 4 of the Fund Convention which
impose an overall liability on the liabilities of the owner and of the
Fund, and the texts of which are set out in Schedule 1.
(10) Evidence of any instrument issued by any organ of the Fund or of any
document in the custody of the Fund, or any entry in or extract from such
a document, may be given in any legal proceedings by production of a copy
certified as a true copy by an official of the Fund; and any document
purporting to be such a copy shall be received in evidence without proof
of the official position or signature of the person signing the
certificate.
(11) For the purpose of giving effect to paragraphs 4, 5 and 6 of Article
4 of the Fund Convention a court giving judgment against the Fund in legal
proceedings under this section shall notify the Fund to that effect, and-
(a) no steps shall be taken to enforce the judgment unless and until the
court gives leave to enforce it;
(b) that leave shall not be given unless and until the Fund notifies the
court either that the amount of the claim is not to be reduced under
paragraph 4 of Article 4 of the Fund Convention, or that it is to be
reduced to a specified amount; and
(c) in the latter case the judgment shall be enforceable only for the
reduced amount.
26. Indemnification of ship owner where ship registered in Fund Convention
country
(1) Where a liability is incurred under section 6 in respect of a ship
registered in a Fund Convention country the Fund shall indemnify the owner
and his guarantor for that portion of the aggregate amount of the
liability which-
(a) is in excess of an amount equivalent to 1,500 francs for each ton of
the ship's tonnage or of an amount of 125 million francs, whichever is the
less; and
(b) is not in excess of an amount equivalent to 2,000 francs for each ton
of the said tonnage or an amount of 210 million francs, whichever is the
less.
(2) Where proceedings under the Liability Convention for compensation for
pollution damage have been brought in a country which is not a Fund
Convention country (but is a country in respect of which the Liability
Convention is in force), and the incident has caused pollution damage in
Hong Kong (as well as in that country) subsection (1) shall apply with the
omission of the words "under section 6".
(3) The Fund shall not incur an obligation under this section where the
pollution damage resulted from the wilful misconduct of the owner.
(4) In legal proceedings to enforce the Fund's obligation under this
section the court may exonerate the Fund wholly or partly if it is proved
that, as a result of the actual fault or privity of the owner-
(a) the ship did not comply with such requirements as the Governor may by
order prescribe for the purposes of this section; and
(b) the occurrence or damage was caused wholly or partly by that non-
compliance.
(5) The requirements referred to in subsection (4) are such requirements
as appear to the Governor to be appropriate to implement the provisions
of-
(a) Article 5 (3) of the Fund Convention (marine safety conventions); and
(b) Article 5 (4) of the Fund Convention (which enables the Assembly of
the Fund to substitute new conventions).
(6) An order made under subsection (4) may contain such transitional or
other supplemental provisions as appear to the Governor to be expedient.
(7) Expenses reasonably incurred, and sacrifices reasonably made, by the
owner voluntarily to prevent or reduce the pollution damage shall be
treated as included in the owner's liability for the purposes of this
section.
27. Effect of judgments
(1) Where in accordance with rules of court made for the purposes of this
subsection the Fund has been given notice of proceedings brought against
an owner or guarantor in respect of liability under section 6, any
judgment given in the proceedings shall, after it has become final and
enforceable, become binding upon the Fund in the sense that the facts and
evidence in the judgment may not be disputed by the Fund even if the Fund
has not intervened in the proceedings.
(2) Where a person incurs a liability under the law of a Fund Convention
country corresponding to the provisions of Part II for damage which is
partly in Hong Kong, subsection (1) shall, for the purpose of proceedings
under this Part, apply with any necessary modifications to a judgment in
proceedings under that law of the country concerned.
(3) Subject to subsection (4), sections 3 to 9 of the Foreign Judgments
(Reciprocal Enforcement) Ordinance (Cap. 319) shall apply, whether or not
they would so apply apart from this subsection, to any judgment given by a
court in a Fund Convention country to enforce a claim in respect of
liability incurred under any law corresponding to section 25 or 26; and in
the application of those sections of the Foreign Judgments (Reciprocal
Enforcement) Ordinance (Cap. 319) to such a judgment, the sections shall
have effect as if subsections (2) and (3) of section 6 of that Ordinance
were omitted.
(4) No steps shall be taken to enforce judgment referred to in subsection
(3) unless and until the court in which it is registered under the Foreign
Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) gives leave to
enforce it; and-
(a) that leave shall not be given unless and until the Fund notifies the
court either that the amount of the claim is not to be reduced under
paragraph 4 of Article 4 of the Fund Convention, or that it is to be
reduced to a specified amount; and
(b) in the latter case, the judgment shall be enforceable only for the
reduced amount.
28. Extinguishment of claims under Part III
(1) No action to enforce a claim against the Fund under this Part shall be
brought in any court in Hong Kong unless-
(a) the action is commenced; or
(b) a third-party notice of an action to enforce a claim against the owner
or his guarantor in respect of the same damage is given to the Fund,
not later than 3 years after the claim against the Fund arose.
(2) In subsection (1) "third-party notice" means a notice of the kind
described in section 27 (1) and (2).
(3) No action to enforce a claim against the Fund under this Part shall be
brought in any court in Hong Kong unless the action is commenced not later
than 6 years after the occurrence or, if there is more than one such
occurrence, the first of such occurrences, resulting in the discharge or
escape by reason of which the claim against the Fund arose.
(4) Notwithstanding subsections (1), (2) and (3), a person's right to
bring an action under section 26 to enforce the Fund's obligation to
indemnify him under that section shall not be extinguished before 6 months
from the date when that person first acquired knowledge of the bringing of
an action against him under the provisions of Part II (that is to say an
action to enforce a liability against which he seeks indemnity), or under
the corresponding provisions of the law of any country outside Hong Kong
giving effect to the Liability Convention.
29. Subrogation and rights of recourse
(1) In respect of any sum paid under section 25 (1) (b) the Fund shall
acquire by subrogation the rights of the recipient against the owner or
guarantor.
(2) The right of the Fund under subsection (1) is subject to any
obligation of the Fund under section 26 to indemnify the owner or
guarantor for any part of the liability on which he has defaulted.
(3) In respect of any sum paid-
(a) under section 25 (1) (a) or (c); or
(b) under section 26,
the Fund shall acquire by subrogation any rights of recourse or
subrogation which the owner or guarantor or any other person has in
respect of his liability for the damage in question.
(4) In respect of any sum paid by the Government as compensation for
pollution damage, the Government shall acquire by subrogation any rights
which the recipient has against the Fund under this Part.
PART IV MISCELLANEOUS
30. Offences by bodies corporate
Where an offence under this Ordinance, which has been committed by a body
corporate is proved to have been-
(a) committed with the consent or connivance of; or
(b) due to any neglect on the part of,
a director, manager, secretary or other similar officer of the body
corporate, or any person who was purporting to act in any such capacity,
he, as well as the body corporate, commits that offence and shall be
liable to be proceeded against and punished accordingly.
31. Fees
(1) The Governor in Council may by regulations made under this section or
under the Merchant Shipping Ordinance (Cap. 281) prescribe the fees
payable in respect of any certificate, service or facility issued or
provided under this Ordinance, not being fees prescribed under any other
section of this Ordinance.
(2) Any fees prescribed under this Ordinance-
(a) may be fixed at levels which provide for the recovery of expenditure
incurred or likely to be incurred by the Government or other authority in
relation generally to the administration, regulation and control of Hong
Kong ships and of ports, ships and navigation in the waters of Hong Kong,
and shall not be limited by reference to the amount of administrative or
other costs incurred or likely to be incurred in the provision of any
particular certificate, service, facility or matter; and
(b) may, without prejudice to the generality of paragraph (a), be fixed at
different amounts in relation to different sizes of ship, whether measured
by tonnage, length or otherwise, or in relation to different classes,
types or descriptions of certificate, service, facility or ship.
32. Amendments, Savings and Repeals
(1) The Oil Pollution (Compulsory Insurance) Regulations (App. I, p. AV1)
as amended in the provisions set out in column 1 of Part I of Schedule 2
to the extent and in the manner set out in column 2 of that Part-
(a) shall, notwithstanding the repeals specified in subsection (3),
continue in force; and
(b) shall be deemed for all purposes to have been made by the Governor in
Council under sections 15 and 16.
(2) - (3) (Omitted)
(4) Notwithstanding the repeals effected by subsection (3), any
certificate or notice-
(a) issued in Hong Kong;
(b) corresponding to a certificate or notice for which provision is made
by section 10 (3), 16 (1) or 24 (1); and
(c) in force immediately before the commencement of this Ordinance,
shall continue in force and have effect as if it were a certificate or
notice issued under section 10 (3), 16 (1) or 24 (1), as the case may be.
SCHEDULE 1 OVERALL LIMIT ON LIABILITY OF FUND
Fund Convention, Article
4-paragraphs 4, 5 and 6 [s. 26 (9)]
4. (a) Except as otherwise provided in subparagraph (b), 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 Liability
Convention for pollution damage caused in the territory of the Contracting
States, including any sums in respect of which the Fund is under an
obligation to indemnify the owner pursuant to Article 5, paragraph 1, of
this Convention, shall not exceed 450 million francs.
SCHEDULE 2 (omitted)
Kong; or
(b) if the ship is a Hong Kong ship, a port in any other country or a
terminal installation in the territorial sea of any other country, unless
there is in force a certificate complying with subsection (4) and
certifying that there is in force in respect of the ship a contract of
insurance or other security satisfying the requirements of Article VII of
the Liability Convention.
(3) For the purposes of subsection (2) and section 16 (1), references in
Article VII of the Liability Convention to Article V thereof shall be
construed as references to Article V as amended by Article II of the
Protocol dated 19 November 1976 to the Liability Convention.
(4) A certificate referred to in subsection (2) must be-
(a) if the ship is a Hong Kong ship, issued by the Director under section
16;
(b) if the ship is registered in a Liability Convention country other
than Hong Kong, issued by or under the authority of the government of the
other Liability Convention country; or
(c) if the ship is registered in a country which is not a Liability
Convention country, recognized for the purposes of this paragraph by
regulations made under this section.
(5) The Governor in Council may by regulations-
(a) define "persistent oil" for the purpose of subsection (1);
(b) provide that certificates in respect of ships registered in any
country which is not a Liability Convention country shall, in such
circumstances as may be specified in the regulations, be recognized for
the purposes of subsection (4) (c) if issued by or under the authority of
the government of a designated country; and in this subsection "designated
country" in relation to a certificate in respect of a ship, means-
(i) the country in which the ship is registered;
(ii) any country specified in the regulations for the purposes of this
subsection.
(6) A certificate required by this section shall at all times be carried
in the ship to which it relates and shall, on demand, be produced by the
master to the Director or any officer of the Marine Department authorized
by him.
(7) If a ship contravenes subsection (2), the master and the owner of the
ship each commits an offence and is liable-
(a) on conviction upon indictment, to a fine of $500,000; and
(b) on summary conviction to a fine of $100,000.
(8) If a ship fails to carry, or the master of a ship fails to produce, a
certificate as required by subsection (6) the master commits an offence
and is liable to a fine of $5,000.
(9) The Director may detain any ship which attempts to leave the waters of
Hong Kong in contravention of this section.
16. Issue of certificate by Director
(1) Subject to subsection (2), the Director shall, if he is satisfied, on
an application for a certificate referred to in section 15 in respect of a
Hong Kong ship, that there will be in force in respect of the ship,
throughout the period for which the certificate is to be issued, a
contract of insurance or other security satisfying the requirements of
Article VII of the Liability Convention, issue such a certificate to the
owner.
(2) If the Director is of opinion that there is a doubt whether the person
providing the insurance or other security will be able to meet his
obligations thereunder, or whether the insurance or other security will
cover the owner's liability under section 6 in all circumstances, he may
refuse to issue the certificate.
(3) The Governor in Council may by regulations-
(a) prescribe the fee to be paid on an application for a certificate under
this section; and
(b) provide for the cancellation and delivery up of such a certificate in
such circumstances as may be prescribed by the regulations.
(4) A person required by regulations made under subsection (3) to deliver
up a certificate who without reasonable excuse fails to do so commits an
offence and is liable to a fine of $5,000.
(5) The Director shall retain a copy of any certificate issued by him
under this section in respect of a Hong Kong ship and shall make the copy
available for public inspection.
17. Rights of third parties against insurers
(1) Where it is alleged that the owner of a ship has incurred a liability
under section 6 as a result of any discharge or escape of oil from the
ship occurring while there was in force a contract of insurance or other
security to which a certificate referred to in section 15 related, legal
proceedings to enforce a claim in respect of the liability may be brought
against the person who provided the insurance or other security (in this
section referred to as "the insurer").
(2) In any proceedings brought against the insurer by virtue of this
section it shall be a defence (in addition to any defence affecting the
owner's liability) to prove that the discharge or escape was due to the
wilful misconduct of the owner himself.
(3) The insurer may under section 10 limit his liability in respect of
claims made against him by virtue of this section in like manner and to
the same extent as the owner may limit his liability but the insurer may
do so whether or not the discharge or escape occurred without the owner's
actual fault or privity.
(4) Where the owner and the insurer each apply to the court under section
10 for the limitation of his liability any sum paid into court in
pursuance of either application shall be treated as paid also in pursuance
of the other.
(5) The Third Parties (Rights against Insurers) Ordinance (Cap. 273) shall
not apply in relation to any contract of insurance to which a certificate
referred to in section 15 relates.
18. Jurisdiction of Hong Kong courts and registration of foreign judgments
(1) Where any persistent oil is discharged or escapes from a ship but does
not cause any pollution damage in Hong Kong, no action (whether in rem or
in personam) shall be brought in any court in Hong Kong to enforce a claim
arising from any pollution damage resulting from the discharge or escape
in the area of a Liability Convention country other than Hong Kong.
(2) Sections 3 to 9 of the Foreign Judgments (Reciprocal Enforcement)
Ordinance (Cap. 319) shall apply, whether or not they would so apply
apart from this section, to any judgment given by a court in a Liability
Convention country to enforce a claim in respect of a liability incurred
under any law corresponding to section 6; and in the application of those
sections of the Foreign Judgments (Reciprocal Enforcement) Ordinance to
such a judgment, the sections shall have effect as if subsections (2) and
(3) of section 6 of that Ordinance were omitted.
19. Warships, etc.
(1) Nothing in the preceding provisions of this Part applies in relation
to any warship or any ship for the time being used by the government of
any State for a purpose other than a commercial purpose.
(2) In relation to a ship owned by a State and for the time being used for
a commercial purpose it shall be a sufficient compliance with section 15
(2) if there is in force a certificate issued by the government of that
State and certifying that the ship is owned by that State and that any
liability for pollution damage as defined in Article 1 of the Liability
Convention will be met up to the limit prescribed by Article V of the
Liability Convention as amended by Article II of the protocol dated 19
November 1976 to the Liability Convention.
(3) A Liability Convention State shall, for the purposes of any
proceedings brought in a court in Hong Kong to enforce a claim in respect
of a liability incurred under section 6, be deemed to have submitted to
the jurisdiction of that court, and accordingly rules of court may provide
for the manner in which such proceedings are to be commenced and carried
on; but nothing in this subsection shall authorized the issue of execution
against the property of any State.
20. Liability for cost of preventive measures where section 6 does not
apply
(1) Where-
(a) after a discharge or an escape of persistent oil from a ship,
reasonable measures are taken to prevent or reduce damage in Hong Kong
which may be caused by contamination resulting from the discharge or
escape; and
(b) any person incurs, or might but for the measures have incurred, a
liability, otherwise than under section 6, for any such damage,
then, notwithstanding that subsection (1) (b) of that section does not
apply, he shall be liable for the cost of the measures, whether or not the
person taking them does so for the protection of his interests or in the
performance of a duty.
(2) For the purposes of section 17 of the Merchant Shipping Act 1979
(1979c. 39 U. K.) any liability incurred under this section shall be
deemed to be a liability in respect of such damage to property as is
mentioned in paragraph 1 (a) of Article 2 of the Convention in Part I of
Schedule 4 to that Act.
21. Saving for recourse actions
Nothing in this Part shall prejudice any claim, or the enforcement of any
claim, which a person incurring any liability under this Part may have
against another person in respect of that liability.
PART III THE INTERNATIONAL OIL POLLUTION COMPENSATION FUND
22. Interpretation of Part III
(1) In this Part-
"Fund" means the International Fund established by the Fund Convention;
"Fund Convention country" means a country in respect of which the Fund
Convention is in force;
"guarantor" means any person providing insurance or other security of the
kind described in section 15 (2);
"oil", except in sections 23 and 24, means persistent hydrocarbon mineral
oil.
(2) In this Part a franc shall be taken to be a unit of 65 1/2 mg of gold
of millesimal fineness 900.
(3) The Governor may by order specify in Hong Kong dollars the amounts
which for the purposes of this Part are to be taken as equivalent to any
specified number of francs.
23. Contributions to the Fund
(1) Contributions shall be payable to the Fund in respect of oil carried
by sea to ports or terminal installations in Hong Kong.
(2) Subsection (1) applies whether or not the oil is being imported, and
applies even if contributions are payable in respect of carriage of the
same oil on a previous voyage.
(3) Contributions shall also be payable to the Fund in respect of oil when
first received in any terminal installation in Hong Kong after having been
carried by sea and discharged in a port or terminal installation in a
country which is not a Fund Convention country.
(4) The person liable to pay contributions is-
(a) in the case of oil which is being imported, the importer; and
(b) in any other case, the person by whom the oil is received.
(5) A person shall not be liable to make contributions in respect of the
oil imported or received by him in any year if the oil so imported or
received in that year does not exceed 150 000 tonnes.
(6) For the purpose of subsection (5)-
(a) all the companies in a group of companies shall be treated as a single
person; and
(b) any 2 or more companies which have been amalgamated into a single
company shall be treated as the same person as that single company.
(7) The contributions payable by a person for any year shall-
(a) be of such amount as may be determined by the Assembly of the Fund
under Articles 11 and 12 of the Fund Convention and notified to him by the
Fund;
(b) be payable in such instalments, becoming due at such times, as may be
so notified to him,
and if any amount due from him remains unpaid after the date on which it
became due, such amount-
(i) shall from that date bear interest, at a rate determined from time to
time by the Assembly of the Fund, until it is paid; and
(ii) shall, together with such interest, be recoverable as a civil debt
due to the Fund.
(8) The Governor in Council may by regulations require persons who are may
be liable to pay contributions under this section to give security for
payment to the Governor or to the Fund; and such regulations may-
(a) contain such supplemental or incidental provisions as appear to the
Governor in Council expedient; and
(b) provide that a contravention of specified provisions of the
regulations shall be an offence and may provide penalties therefor not
exceeding a fine of $5,000.
(9) In this section and section 24, unless the context otherwise
requires-"company" means a body incorporated under the law of Hong Kong,
or of any other country; "crude oil" means any liquid hydrocarbon mixture
occurring naturally in the earth whether or not treated to render it
suitable for transportation, and includes-
(a) crude oils from which distillate fractions have been removed; and
(b) crude oils to which distillate fractions have been added;
"fuel oil" means heavy distillates or residues from crude oil or blends of
such materials intended for use as a fuel for the production of heat or
power of a quality equivalent to the American Society for Testing and
Materials' Specification for Number Four Fuel Oil (Designation D 396-69),
or heavier;
"group of companies" has the same meaning as in section 2 (1) of the
Companies Ordinance (Cap. 32), and in the case of a company incorporated
outside Hong Kong, has a corresponding meaning subject to any necessary
modifications;
"import" means import into Hong Kong;
"importer" means the person by whom or on whose behalf the oil in question
is entered for customs purposes on importation;
"oil" means crude oil and fuel oil.
(10) In this section "sea" does not include any waters within the
boundaries of Hong Kong as defined in the Second Schedule to the
Interpretation and General Clauses Ordinance (Cap. 1).
24. Power to obtain information
(1) The Governor may, for the purpose of transmitting to the Fund a list
of the names and addresses of the persons who, under section 23, are
liable to make contributions to the Fund for any year, and the quantity of
oil in respect of which they are so liable, by notice in writing require
any person engaged in producing, treating, distributing or transporting
oil to furnish to a person specified in the notice such information as may
be specified in the notice.
(2) A notice under this section may require a company to give such
information as may be required to ascertain whether its liability is
affected by section 23 (6).
(3) A notice under this section may specify the manner in which, and the
time within which, it is to be complied with.
(4) In legal proceedings by the Fund against any person to recover any
amount due under section 23, any particulars contained in any list
transmitted by the Governor to the Fund shall, in so far as those
particulars are based on information obtained under this section, be
admissible as evidence of any relevant fact stated in the list; and in so
far as particulars which are so admissible are based on information given
by the person against whom the proceedings are brought, those particulars
shall be presumed to be accurate until the contrary is proved.
(5) A person who discloses any information which has been furnished to or
obtained by him under this section, or in connection with the execution of
this section, unless the disclosure is made-
(a) with the consent of the person from whom the information was obtained;
or
(b) in connection with the execution of this section; or
(c) for the purposes of any legal proceedings arising out of this section,
or of any report of such proceedings,
commits an offence and is liable to a fine of $5,000.
(6) A person who-
(a) refuses or wilfully neglects to comply with a requirement of a notice
under this section; or
(b) in purporting to comply with a requirement of a notice under this
section makes any statement which he knows to be false in a material
particular, or recklessly makes any statement which is false in a material
particular,
commits an offence and is liable-
(i) on conviction upon indictment, to imprisonment for 1 year and to a
fine of $50,000; or
(ii) on summary conviction, to a fine of $5,000.
25. Liability of the Fund for pollution damage
(1) The Fund shall be liable for pollution damage in Hong Kong if the
person suffering the damage has been unable to obtain full compensation
under section 6-
(a) because the discharge or escape causing the damage-
(i) resulted from an exceptional, inevitable and irresistible natural
phenomenon; or
(ii) was due wholly to anything done or left undone by another person, not
being a servant or agent of the owner, with intent to do damage; or
(iii) was due wholly to the negligence or wrongful act of a government or
other authority in exercising its function of maintaining lights or other
navigational aids for the maintenance of which it was responsible,
(and because liability is accordingly wholly displaced by section 7); or
(b) because the owner or guarantor who is liable for the damage is not
able to meet his obligations in full in respect of that liability; or
(c) because the damage exceeds the liability under section 6 as limited by
section 9.
(2) Where-
(a) a discharge or escape has caused pollution damage both in Hong Kong
and in the area of another Fund Convention country; and
(b) proceedings under the Liability Convention for compensation for the
pollution damage have been brought in a country which is not a Fund
Convention country or in Hong Kong, subsection (1) shall be construed and
have effect as regards that pollution damage as if for "Hong Kong" there
were substituted "the area of a Fund Convention country".
(3) Where the incident has caused pollution damage both in Hong Kong and
in the area of another country in respect of which the Liability
Convention is in force, references in this section to any of the
provisions of Part II shall include references to the corresponding
provisions of the law of any country giving effect to the Liability
Convention.
(4) For the purposes of this section an owner or guarantor is not able to
meet his obligations if the obligations have not been met after all
reasonable steps to pursue the legal remedies available have been taken.
(5) Expenses reasonably incurred, and sacrifices reasonably made, by the
owner voluntarily to prevent or reduce pollution damage shall be treated
as pollution damage for the purposes of this section, and accordingly he
shall be in the same position with respect to claims against the Fund
under this section as if he had established a claim in respect of
liability under section 6.
(6) The Fund shall incur no liability under this section if-
(a) it proves that the pollution damage-
(i) resulted from an act of war, hostilities, civil war or insurrection;
or
(ii) was caused by oil which escaped or was discharged from a warship or
other ship owned or operated by a State and used, at the time of the
occurrence, only on government non-commercial service; or
(b) a claimant cannot prove that the damage resulted from an occurrence
involving a ship identified by him, or involving 2 or more ships one of
which is identified by him.
(7) If the Fund proves that the pollution damage resulted wholly or
partly-
(a) from anything done or left undone with intent to cause damage by the
person who suffered the damage; or
(b) from the negligence of that person,
the Fund may be exonerated wholly or partly from its liability to pay
compensation to that person, but this subsection shall not apply to a
claim in respect of expenses incurred or sacrifices made voluntarily to
prevent or reduce pollution damage.
(8) Where the liability under section 6 is limited to any extent by
subsection (4) of that section, the Fund shall be exonerated to the same
extent.
(9) The Fund's liability under this section shall be subject to the limits
imposed by paragraphs 4, 5 and 6 of Article 4 of the Fund Convention which
impose an overall liability on the liabilities of the owner and of the
Fund, and the texts of which are set out in Schedule 1.
(10) Evidence of any instrument issued by any organ of the Fund or of any
document in the custody of the Fund, or any entry in or extract from such
a document, may be given in any legal proceedings by production of a copy
certified as a true copy by an official of the Fund; and any document
purporting to be such a copy shall be received in evidence without proof
of the official position or signature of the person signing the
certificate.
(11) For the purpose of giving effect to paragraphs 4, 5 and 6 of Article
4 of the Fund Convention a court giving judgment against the Fund in legal
proceedings under this section shall notify the Fund to that effect, and-
(a) no steps shall be taken to enforce the judgment unless and until the
court gives leave to enforce it;
(b) that leave shall not be given unless and until the Fund notifies the
court either that the amount of the claim is not to be reduced under
paragraph 4 of Article 4 of the Fund Convention, or that it is to be
reduced to a specified amount; and
(c) in the latter case the judgment shall be enforceable only for the
reduced amount.
26. Indemnification of ship owner where ship registered in Fund Convention
country
(1) Where a liability is incurred under section 6 in respect of a ship
registered in a Fund Convention country the Fund shall indemnify the owner
and his guarantor for that portion of the aggregate amount of the
liability which-
(a) is in excess of an amount equivalent to 1,500 francs for each ton of
the ship's tonnage or of an amount of 125 million francs, whichever is the
less; and
(b) is not in excess of an amount equivalent to 2,000 francs for each ton
of the said tonnage or an amount of 210 million francs, whichever is the
less.
(2) Where proceedings under the Liability Convention for compensation for
pollution damage have been brought in a country which is not a Fund
Convention country (but is a country in respect of which the Liability
Convention is in force), and the incident has caused pollution damage in
Hong Kong (as well as in that country) subsection (1) shall apply with the
omission of the words "under section 6".
(3) The Fund shall not incur an obligation under this section where the
pollution damage resulted from the wilful misconduct of the owner.
(4) In legal proceedings to enforce the Fund's obligation under this
section the court may exonerate the Fund wholly or partly if it is proved
that, as a result of the actual fault or privity of the owner-
(a) the ship did not comply with such requirements as the Governor may by
order prescribe for the purposes of this section; and
(b) the occurrence or damage was caused wholly or partly by that non-
compliance.
(5) The requirements referred to in subsection (4) are such requirements
as appear to the Governor to be appropriate to implement the provisions
of-
(a) Article 5 (3) of the Fund Convention (marine safety conventions); and
(b) Article 5 (4) of the Fund Convention (which enables the Assembly of
the Fund to substitute new conventions).
(6) An order made under subsection (4) may contain such transitional or
other supplemental provisions as appear to the Governor to be expedient.
(7) Expenses reasonably incurred, and sacrifices reasonably made, by the
owner voluntarily to prevent or reduce the pollution damage shall be
treated as included in the owner's liability for the purposes of this
section.
27. Effect of judgments
(1) Where in accordance with rules of court made for the purposes of this
subsection the Fund has been given notice of proceedings brought against
an owner or guarantor in respect of liability under section 6, any
judgment given in the proceedings shall, after it has become final and
enforceable, become binding upon the Fund in the sense that the facts and
evidence in the judgment may not be disputed by the Fund even if the Fund
has not intervened in the proceedings.
(2) Where a person incurs a liability under the law of a Fund Convention
country corresponding to the provisions of Part II for damage which is
partly in Hong Kong, subsection (1) shall, for the purpose of proceedings
under this Part, apply with any necessary modifications to a judgment in
proceedings under that law of the country concerned.
(3) Subject to subsection (4), sections 3 to 9 of the Foreign Judgments
(Reciprocal Enforcement) Ordinance (Cap. 319) shall apply, whether or not
they would so apply apart from this subsection, to any judgment given by a
court in a Fund Convention country to enforce a claim in respect of
liability incurred under any law corresponding to section 25 or 26; and in
the application of those sections of the Foreign Judgments (Reciprocal
Enforcement) Ordinance (Cap. 319) to such a judgment, the sections shall
have effect as if subsections (2) and (3) of section 6 of that Ordinance
were omitted.
(4) No steps shall be taken to enforce judgment referred to in subsection
(3) unless and until the court in which it is registered under the Foreign
Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) gives leave to
enforce it; and-
(a) that leave shall not be given unless and until the Fund notifies the
court either that the amount of the claim is not to be reduced under
paragraph 4 of Article 4 of the Fund Convention, or that it is to be
reduced to a specified amount; and
(b) in the latter case, the judgment shall be enforceable only for the
reduced amount.
28. Extinguishment of claims under Part III
(1) No action to enforce a claim against the Fund under this Part shall be
brought in any court in Hong Kong unless-
(a) the action is commenced; or
(b) a third-party notice of an action to enforce a claim against the owner
or his guarantor in respect of the same damage is given to the Fund,
not later than 3 years after the claim against the Fund arose.
(2) In subsection (1) "third-party notice" means a notice of the kind
described in section 27 (1) and (2).
(3) No action to enforce a claim against the Fund under this Part shall be
brought in any court in Hong Kong unless the action is commenced not later
than 6 years after the occurrence or, if there is more than one such
occurrence, the first of such occurrences, resulting in the discharge or
escape by reason of which the claim against the Fund arose.
(4) Notwithstanding subsections (1), (2) and (3), a person's right to
bring an action under section 26 to enforce the Fund's obligation to
indemnify him under that section shall not be extinguished before 6 months
from the date when that person first acquired knowledge of the bringing of
an action against him under the provisions of Part II (that is to say an
action to enforce a liability against which he seeks indemnity), or under
the corresponding provisions of the law of any country outside Hong Kong
giving effect to the Liability Convention.
29. Subrogation and rights of recourse
(1) In respect of any sum paid under section 25 (1) (b) the Fund shall
acquire by subrogation the rights of the recipient against the owner or
guarantor.
(2) The right of the Fund under subsection (1) is subject to any
obligation of the Fund under section 26 to indemnify the owner or
guarantor for any part of the liability on which he has defaulted.
(3) In respect of any sum paid-
(a) under section 25 (1) (a) or (c); or
(b) under section 26,
the Fund shall acquire by subrogation any rights of recourse or
subrogation which the owner or guarantor or any other person has in
respect of his liability for the damage in question.
(4) In respect of any sum paid by the Government as compensation for
pollution damage, the Government shall acquire by subrogation any rights
which the recipient has against the Fund under this Part.
PART IV MISCELLANEOUS
30. Offences by bodies corporate
Where an offence under this Ordinance, which has been committed by a body
corporate is proved to have been-
(a) committed with the consent or connivance of; or
(b) due to any neglect on the part of,
a director, manager, secretary or other similar officer of the body
corporate, or any person who was purporting to act in any such capacity,
he, as well as the body corporate, commits that offence and shall be
liable to be proceeded against and punished accordingly.
31. Fees
(1) The Governor in Council may by regulations made under this section or
under the Merchant Shipping Ordinance (Cap. 281) prescribe the fees
payable in respect of any certificate, service or facility issued or
provided under this Ordinance, not being fees prescribed under any other
section of this Ordinance.
(2) Any fees prescribed under this Ordinance-
(a) may be fixed at levels which provide for the recovery of expenditure
incurred or likely to be incurred by the Government or other authority in
relation generally to the administration, regulation and control of Hong
Kong ships and of ports, ships and navigation in the waters of Hong Kong,
and shall not be limited by reference to the amount of administrative or
other costs incurred or likely to be incurred in the provision of any
particular certificate, service, facility or matter; and
(b) may, without prejudice to the generality of paragraph (a), be fixed at
different amounts in relation to different sizes of ship, whether measured
by tonnage, length or otherwise, or in relation to different classes,
types or descriptions of certificate, service, facility or ship.
32. Amendments, Savings and Repeals
(1) The Oil Pollution (Compulsory Insurance) Regulations (App. I, p. AV1)
as amended in the provisions set out in column 1 of Part I of Schedule 2
to the extent and in the manner set out in column 2 of that Part-
(a) shall, notwithstanding the repeals specified in subsection (3),
continue in force; and
(b) shall be deemed for all purposes to have been made by the Governor in
Council under sections 15 and 16.
(2) - (3) (Omitted)
(4) Notwithstanding the repeals effected by subsection (3), any
certificate or notice-
(a) issued in Hong Kong;
(b) corresponding to a certificate or notice for which provision is made
by section 10 (3), 16 (1) or 24 (1); and
(c) in force immediately before the commencement of this Ordinance,
shall continue in force and have effect as if it were a certificate or
notice issued under section 10 (3), 16 (1) or 24 (1), as the case may be.
SCHEDULE 1 OVERALL LIMIT ON LIABILITY OF FUND
Fund Convention, Article
4-paragraphs 4, 5 and 6 [s. 26 (9)]
4. (a) Except as otherwise provided in subparagraph (b), 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 Liability
Convention for pollution damage caused in the territory of the Contracting
States, including any sums in respect of which the Fund is under an
obligation to indemnify the owner pursuant to Article 5, paragraph 1, of
this Convention, shall not exceed 450 million francs.
SCHEDULE 2 (omitted)
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