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SR 1994 No. 126 Regulations as amended, taking into account amendments up to SR 1998 No. 87
Registered 12 Apr 2010
Start Date 15 May 1998
End Date 20 Dec 2001

Protection of the Sea (Oil Pollution Compensation Fund) Regulations

Statutory Rules 1994 No. 126 as amended

made under the

Consolidated as in force on 7 December 1998

(includes amendments up to SR 1998 No. 87)

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra


Protection of the Sea (Oil Pollution Compensation Fund) Regulations

Statutory Rules 1994 No. 126 as amended

made under the

Protection of the Sea (Oil Pollution Compensation Fund) Act 1993

Contents

Page

Part 1        Preliminary

                        1     Citation [see Note 1]                                                       

                        2     Commencement [see Note 1]                                          

                        3     Interpretation                                                                  

Part 2        Registration of foreign judgments

                        4     Jurisdiction of courts                                                       

                        5     Court fees                                                                      

                        6     Application for registration of foreign judgment                   

                        7     Sum for which judgment may be registered                       

                        8     Judgment sum to be expressed in Australian currency       

                        9     Judgment in respect of pollution damage and other matters

                       10     Evidence in support of application to register judgment       

                       11     Security for costs                                                           

                       12     Order on application for registration of judgment                 

                       13     Notice to judgment debtor of registration of judgment         

                       14     Effect of registration of foreign judgment                            

                       15     Execution not to issue before period allowed to set aside judgment    

                       16     Procedure to have a registered judgment set aside           

                       17     Powers of court to set aside registration on application     

                       18     Further application for registration                                   

                       19     Judgment not to be enforceable except by registration      

                       20     Issue of certificates of judgments                                    

Part 3        Miscellaneous

                       21     Method of paying subscriptions and late payments          

                       22     Records to be kept                                                        

                       23     Copies of records to be given to Authority                        

                       24     Authority may require documents                                   

Schedule          Return form                                                               

 


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Part 1            Preliminary

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1       Citation [see Note 1]

                These regulations may be cited as the Protection of the Sea (Oil Pollution Compensation Fund) Regulations.

2       Commencement [see Note 1]

                These regulations commence on the day on which Chapters 1, 2 and 4 of the Act commence.

3       Interpretation

         (1)   In these regulations, unless the contrary intention appears:

Act means the Protection of the Sea (Oil Pollution Compensation Fund) Act 1993.

compensation for pollution damage means compensation for which provision is made under Article 4 of the 1992 convention.

court means a court that may exercise jurisdiction for the purposes of section 34 of the Act.

judgment means a judgment or order given or made by a court against the Fund for compensation for pollution damage in a foreign country to which the 1992 Convention applies.

judgment creditor:

                (a)    means the person in whose favour a judgment was given; and

               (b)    includes a person in whom the rights under a judgment are vested by succession, assignment or otherwise.

judgment debtor:

                (a)    means the person against whom a judgment was given; and

               (b)    includes a person against whom a judgment is enforceable under the law of the country in which the original court is situated.

original court, in relation to a judgment, means the court by which the judgment is given.

registered means registered under Part 2.

         (2)   Unless the contrary intention appears, an expression used in these regulations and in the 1992 Convention has the same meaning in these regulations, as they relate to the 1992 Convention, as in the 1992 Convention.

Note   Words and expressions used in these regulations that are defined in the Act have the same meaning in these regulations as they have in the Act (see Acts Interpretation Act 1901, s. 46 (1) (a)). For example, section 3 of the Act contains definitions of the 1992 Convention and the 1992 Fund.

Part 2            Registration of foreign judgments

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4       Jurisdiction of courts

                For the purposes of section 34 of the Act:

                (a)    the Supreme Court of each State is invested with federal jurisdiction; and

               (b)    federal jurisdiction is conferred on the Supreme Court of each internal Territory; and

                (c)    the Federal Court of Australia is invested with jurisdiction.

5       Court fees

                For the purposes of section 34 of the Act, the fees to be paid to a Court in respect of a matter under this Part are the fees prescribed in relation to the matter in the Rules of the Court.

6       Application for registration of foreign judgment

         (1)   A judgment creditor may apply to a court to have the judgment registered in the court.

         (2)   Subject to these regulations, on written application, a court must order the judgment to be registered.

         (3)   A judgment must not be registered unless it:

                (a)    was given by a court having jurisdiction of the kind referred to in Article 7 of the 1992 Convention; and

               (b)    was given in respect of an incident that occurred after Australia and the country in which the original court is situated became Contracting States; and

                (c)    is enforceable by execution in the country in which the original court is situated; and

               (d)    is no longer subject to ordinary forms of review under the law of the country in which the original court is situated.

7       Sum for which judgment may be registered

                The amount for which a judgment may be registered is the total of:

                (a)    the whole amount payable under the judgment of the original court, or, if the judgment has been partly satisfied, the balance payable under the judgment at the date of the application for registration, including:

                          (i)    any costs awarded to the judgment creditor; and

                         (ii)    any interest that, by the law of the country in which the original court is situated, becomes due under the judgment up to the time of registration; and

               (b)    the amount of the reasonable costs of, and incidental to, registration, including the costs of obtaining a certified copy of the judgment from the original court.

8       Judgment sum to be expressed in Australian currency

                If the sum payable under a judgment is expressed in the currency of a foreign country, the amount for which the judgment may be registered is the amount that the sum payable represents in Australian currency calculated at the official rate of exchange determined by the Reserve Bank of Australia as at the date of the judgment of the original court.

9       Judgment in respect of pollution damage and other matters

                If a judgment, for which registration is sought, appears to the court to be in respect of proceedings for compensation for pollution damage and for other matters, the judgment may be registered in respect of provisions contained in it that relate to compensation for pollution damage but not in respect of provisions relating to the other matters.

10     Evidence in support of application to register judgment

         (1)   An application for registration must have with it an affidavit:

                (a)    to which is attached:

                          (i)    a certified copy of the judgment of the original court authenticated by the seal of that court; and

                         (ii)    if the judgment is not in English—translation of the judgment into English that is certified by a notary public or authenticated by affidavit; and

               (b)    that states to the best of knowledge of the applicant:

                          (i)    that, at the date of the application, the judgment of the original court has not been satisfied, or, if the judgment has been partly satisfied, the sum for which it remains unsatisfied; and

                         (ii)    that, at the date of the application, the judgment of the original court is enforceable by the applicant by execution in the country in which the original court is situated; and

                         (iii)    that, if the judgment is registered, the registration will not be, or be liable to be, set aside; and

                        (iv)    that the judgment of the original court is no longer subject to ordinary forms of review under the law of the country in which the original court is situated; and

                         (v)    that the judgment was given by a court having jurisdiction of the kind referred to in Article 7 of the 1992 Convention; and

                        (vi)    that the judgment was given in respect of an incident that occurred after Australia and the country in which the original court is situated became Contracting States; and

                (c)    that specifies the rate at which interest (if any) accrues on the judgment under the law of the country in which the original court is situated.

         (2)   The affidavit must set out the matters relied on by the applicant as evidence of the matters referred to in paragraphs (1) (b) (v) and (vi).

         (3)   If the sum payable under the judgment of the original court is expressed in currency other than Australian currency, the affidavit must state the amount that that sum represents in Australian currency calculated at the official rate of exchange determined by the Reserve Bank of Australia as at the date of that judgment.

         (4)   If the judgment has been given in respect of proceedings for compensation for pollution damage and of other matters, the affidavit must identify the provisions of the judgment:

                (a)    that relate to compensation for pollution damage; and

               (b)    for which registration is sought.

11     Security for costs

                The court may order a judgment creditor who applies for registration of the judgment to give security for the costs of the application and of any proceedings that may be brought to set aside the registration of the judgment.

12     Order on application for registration of judgment

         (1)   If an order is made for registration of a judgment the court must fix a period that appears to the court to be appropriate in the circumstances to enable an application to be made to set aside the registration of the judgment.

         (2)   The order for registration of a judgment must:

                (a)    specify the period fixed by the court under subregulation (1); and

               (b)    include a statement to the effect that the judgment will not be given effect until the end of the period stated in the order.

         (3)   At any time until a party can no longer apply to have registration of a judgment set aside, the court may grant an extension of the period during which an application to have the registration set aside may be made.

13     Notice to judgment debtor of registration of judgment

         (1)   Notice in writing of the registration of a judgment of the original court must be served on the judgment debtor in accordance with the practice and procedure applicable to service of a writ of summons issued by the court in which the judgment has been registered unless another mode of service is ordered by the court.

         (2)   A notice of the registration of a judgment referred to in subregulation (1) must:

                (a)    specify full particulars of the registered judgment and the order for registration; and

               (b)    specify the name and address for service of the judgment creditor or his or her solicitor or agent, as the case may be; and

                (c)    include a notice to the judgment debtor that he or she may apply, within the period specified in the order, for registration of the judgment to be set aside in accordance with these regulations.

14     Effect of registration of foreign judgment

         (1)   Except to the extent that these regulations provide for the setting aside of registration, a registered judgment has the same effect as a judgment of the court in which it is registered as if the judgment had been entered in that court on the date of registration.

         (2)   For the purpose of any proceedings on a registered judgment, interest on the sum for which the judgment is registered accrues from the date of registration of the judgment as if it were a judgment of the court in which it is registered.

15     Execution not to issue before period allowed to set aside judgment

                Effect must not be given to a registered judgment until:

                (a)    the end of the period fixed by the court for making an application to set aside the judgment; or

               (b)    the end of any further period that is ordered by the Court; or

                (c)    if an application to set aside the judgment is made during the period referred to in paragraph (a) or (b)—after the application has been finally determined.

16     Procedure to have a registered judgment set aside

         (1)   A person against whom a registered judgment may be enforced may apply to the court in which the judgment was registered to have registration of the judgment set aside.

         (2)   On an application, the court may set aside registration of a judgment, if:

                (a)    the rights under the judgment are not vested in the person by whom the application for registration was made; or

               (b)    the person against whom the judgment was registered is not the person subject to the obligations under the judgment; or

                (c)    at the date of the application for registration of the judgment, the sum for which the judgment was registered had been paid in whole or in part; or

               (d)    the judgment was obtained by fraud; or

                (e)    the judgment debtor, being the defendant in the proceedings in the original court, was not given reasonable notice of those proceedings or a fair opportunity to defend the proceedings; or

                (f)    before the date of the judgment in the original court, the matter in dispute in the proceedings in that court had been the subject of a judgment of an Australian court exercising jurisdiction in the matter; or

                (g)    before the date of the judgment in the original court, the matter in dispute in the proceedings in that court had been the subject of a judgment of a court (except an Australian court) exercising jurisdiction in the matter, being a judgment that:

                          (i)    could be registered; and

                         (ii)    if it were registered—would not be liable to be set aside; or

                (h)    the judgment was registered in contravention of these regulations.

17     Powers of court to set aside registration on application

         (1)   If, on application to set aside the registration of a judgment, it appears to the court that registration of the judgment may be set aside only because at the date of application for registration:

                (a)    the judgment was not enforceable in the country in which the original court is situated; or

               (b)    the judgment was subject to an ordinary form of review under the law of the country in which the original court is situated;

                the Court may, instead of setting aside the registration of the judgment, order a stay of execution on the judgment on such terms as it thinks just.

         (2)   If the registration of a judgment is set aside only because part of the sum in respect of which the judgment was registered had, at the date of the application for registration of the judgment, been paid, the Court must, on the application of the judgment creditor, order the judgment to be registered for the balance remaining payable at the date of the last-mentioned application.

         (3)   If the registration of a judgment is set aside only because the judgment was registered in respect of proceedings for compensation for pollution damage and for other matters, the Court must, on the application of the judgment creditor, order the judgment to be registered only in respect of the provisions of the judgment that relate to compensation for pollution damage.

18     Further application for registration

                The setting aside of the registration of a judgment under these regulations does not prevent a further application to register the judgment being made, unless the court orders otherwise.

19     Judgment not to be enforceable except by registration

                A court must not hear or determine proceedings, except proceedings by way of registration of a judgment, for the recovery of an amount payable under the judgment.

20     Issue of certificates of judgments

                If a judgment has been entered in a court for a claim for compensation under the applied provisions of the 1992 Convention and the person in whose favour such judgment has been entered wishes to enforce the judgment in a country to which the 1992 Convention applies, the Registrar or chief officer of the court must, on application by that person, issue under the seal of the court:

                (a)    a certified copy of the judgment in the proceedings; or

               (b)    a certified copy of any document filed with the court in the proceedings; or

                (c)    a certificate giving details of:

                          (i)    any order made by the court in the proceedings; or

                         (ii)    any act or thing done in the proceedings that is recorded in a document forming part of the record kept by the court.

Part 3            Miscellaneous

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21     Method of paying subscriptions and late payments

                For the purposes of section 42 of the Act, contribution, or late payment penalty, must be paid:

                (a)    by a cheque for the amount of the contribution or late payment penalty that is drawn in:

                          (i)    Australian currency; or

                         (ii)    the currency of the place where the 1992 Fund is kept; or

               (b)    by electronic transmission of the amount of the contribution or late payment penalty in:

                          (i)    Australian currency; or

                         (ii)    the currency of the place where the 1992 Fund is kept.

22     Records to be kept

         (1)   A person to whom Article 10 of the 1992 Convention applies must keep records for each calendar year:

                (a)    of the matters; and

               (b)    in a manner;

                that will enable the person to make a return under regulation 23.

         (2)   A person who is required to keep records must retain the records at the principal place of business of the person in Australia for 5 years after the year to which the records relate.

                Penalty:     10 penalty units.

23     Copies of records to be given to Authority

         (1)   On or before 1 March in a year, a person to whom regulation 22 applies must give to the Authority a return that relates to the preceding calendar year, in accordance with the form in the Schedule.

         (2)   A return must:

                (a)    be signed by the person who makes the return; and

               (b)    specify the date on which the return was completed by that person; and

                (c)    show the name, and any telex or fax number, of the person.

         (3)   The person must:

                (a)    make a statutory declaration that the information in the return is complete and correct to the best of the knowledge of the person; and

               (b)    include the statutory declaration with the return.

                Penalty:     10 penalty units.

24     Authority may require documents

         (1)   The Authority may require, by notice in writing, a person to:

                (a)    produce a document to the Authority; or

               (b)    make a copy of a document and give the copy to the Authority;

                if the document is relevant to ascertaining the liability of a person to make a contribution to the 1992 Fund.

         (2)   A person must comply with a requirement made in accordance with subregulation (1).

                Penalty:     10 penalty units.


Schedule           Return form

                                                      (subregulation 23 (1))

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Contributing oil received in (insert year of receipt)

for the purposes Article 15.1 of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage

CONTRACTING STATE

 

 

PERSON RECEIVING CONTRIBUTING OIL

 

 

 

 

 

 

ASSOCIATED PERSONS

Is the reporting person an associated person within the meaning of Article 10?

YES/NO

If yes, name parent company of group

 

 

 

 

 

FULL POSTAL
 ADDRESS

 

 

 

 

 

 

 

Contributing oil1 (crude oil and fuel oil) received2-6 directly after carriage by sea

 

Quantity9
(tonnes)

 

Received from other States5

 

 

Received otherwise6

 

 

 

SUBTOTAL

 

 

 

 

 

Contributing oil1 received5-8 from a non-Contracting State8 by modes of transport other than carriage by sea

 

State(s) from which received

Mode of transport

Quantity9 (tonnes)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SUBTOTAL

 

 

 

 

 

 

TOTAL QUANTITY OF CONTRIBUTING OIL RECEIVED

 

For completion by competent officer of company or other body receiving the oil

For completion by certifying AMSA officer

Name

 

 

 

Signature

 

Signature

 

Title

 

Title

 

Telex/Telefax

 

Telex/Telefax

 

Date

 

Date

 

 

 

 

 

FOR

Entered

Associated to CTR/

 

IOPC FUND

 

 

 

USE ONLY

Checked

Parent of CTR?

File : CTR/

Note   Each of the following directions applies to a matter in the form in which the direction number appears.

Directions for completing Returns

A return must be completed in accordance with the following directions:

1.       The following list gives examples of contributing and non-contributing oils and is not intended to be exhaustive:

 

Contributing Oil 

Non-Contributing Oil 

Crude Oils  

Crude Oils  

All naturally occurring crude oils

Natural gas liquids

Topped crudes

Condensate

Spiked crudes

Casinghead naphtha

Reconstituted crudes

Natural gasoline

Finished Products  

Finished Products  

No4 fuel (ASTM)

LNG and LPG

Navy Special fuel

Motor gasoline (petrol, essence)

Light fuel oil

White spirit

No5 fuel (ASTM) - light

Kerosene

Medium fuel oil

-Aviation kerosene

No 5 fuel (ASTM) - heavy

-Jet 1 A

Bunker C fuel oil

-Nº1 fuel (ASTM)

Heavy fuel oil

Gas oil

Marine fuel oil

Heating oil

Nº6 fuel oil (ASTM)

Nº2 fuel (ASTM)

Blended fuel oils by viscosity or sulphur content

Marine diesel
Lubricating oil

Intermediate or Process Stocks  

Intermediate or Process Stocks  

Fuel oil blend stocks

Straight run naphthas

 

Light cracked naphtha

 

Heavy cracked naphtha

 

Platformate

 

Reformate

 

Steam-cracked naphtha

 

Polymers

 

Isomers

 

Alkylates

 

Catalytic cycle oil

 

Reformer feed

 

Steam cracker feed

 

Gas oil blend stocks

 

Catalytic cracker feedstock

 

Visbreaker feedstock

 

Aromatic tar

2.       Discharge into a floating tank within the territorial waters of a Contracting State (including its ports) constitutes a receipt of oil, irrespective of whether or not the tank is connected with on-shore installations by pipeline. A ship is taken to be a floating tank only if it is of the kind known as a dead ship, that is, it is not ready to sail.

3.       Movement within the same port area is not taken to be carriage by sea.

4.       Ship-to-ship transfer is not taken to be receipt unless oil, after having been transferred within a port area from a sea-going vessel to another sea-going vessel:

          (a)  is carried by the other vessel to an on-shore installation situated on the territory of a Contracting State, in which case receipt in that installation is taken to be receipt of oil carried by sea; or

          (b)  passes through a storage tank before being loaded to the other vessel, in which case it is taken to be oil received at that tank in the Contracting State in the territory of which the tank is situated.

5.       Imports of oil must be entered under Received from other States and receipts of oil from other sources must be entered under Received otherwise.

6.       Received otherwise includes movements from terminals at sea, from floated storage, from off-shore oil fields by vessel or after coastal movement of the oil within the same Contracting State.

7.       Contracting State means a State for which the 1992 Convention is in force. When completing the report, States for which the 1992 Convention enters into force after 31 March of the year when the report is submitted are taken to be non-Contracting States.

8.       The report should specify the non-Contracting State from which contributing oil was received and the mode of transport by which received. Only such oil that has at some time been carried by sea should be reported.

9.       Quantities of contributing oil must be given in tonnes rounded off to the nearest tonne.


Notes to the Protection of the Sea (Oil Pollution Compensation Fund) Regulations

Note 1

The Protection of the Sea (Oil Pollution Compensation Fund) Regulations (in force under the Protection of the Sea (Oil Pollution Compensation Fund) Act 1993) as shown in this reprint comprise Statutory Rules 1994 No. 126 amended as indicated in the Tables below.

Table of Statutory Rules

 

Year and
number

Date of notification
in Gazette

Date of
commencement

Application, saving or
transitional provisions

 

1994 No. 126

3 May 1994

3 May 1994 (see Gazette 1994, No. S462)

 

1996 No. 221

9 Oct 1996

9 Oct 1996

1998 No. 87

15 May 1998

15 May 1998


Table of Amendments

 

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

R. 3..........................................

am. 1996 No. 221; 1998 No. 87

Note to r. 3 (2)........................

am. 1998 No. 87

R. 4..........................................

am. 1996 No. 221; 1998 No. 87

R. 5..........................................

am. 1996 No. 221; 1998 No. 87

R. 6..........................................

am. 1996 No. 221; 1998 No. 87

R. 10........................................

am. 1996 No. 221; 1998 No. 87

Heading to r. 20....................

am. 1998 No. 87

R. 20........................................

am. 1996 No. 221; 1998 No. 87

R. 21........................................

am. 1996 No. 221; 1998 No. 87

R. 22........................................

am. 1996 No. 221; 1998 No. 87

Heading to r. 24....................

am. 1998 No. 87

R. 24........................................

am. 1996 No. 221; 1998 No. 87

Schedule................................

am. 1996 No. 221; 1998 No. 87