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Act No. 41 of 1993 as amended, taking into account amendments up to Act No. 8 of 2010
An Act relating to oil pollution damage
Administered by: Infrastructure and Transport
Registered 11 Mar 2010
Start Date 13 Oct 2009
End Date 21 Sep 2012

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

Act No. 41 of 1993 as amended

This compilation was prepared on 3 March 2010
taking into account amendments up to Act No. 8 of 2010

[Note: Chapter 2 was repealed by s. 26, effective
15 May 1998 (Gazette 1998, No. S214)]

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Chapter 1—Preliminary                                                                                                       1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Interpretation...................................................................................... 1

4............ Act to bind Crown.............................................................................. 2

5............ Operation of Act................................................................................ 3

5A......... Application of the Criminal Code...................................................... 3

Chapter 3—The 1992 Convention                                                                                 4

Part 3.1—Repeal of Chapter 2                                                                                        4

26.......... Repeal of Chapter 2............................................................................ 4

Part 3.2—Outline of Chapter                                                                                            5

27.......... Simplified outline................................................................................ 5

Part 3.3—Interpretation                                                                                                      6

28.......... Interpretation...................................................................................... 6

Part 3.4—Legal recognition of the 1992 Fund                                                        7

29.......... 1992 Fund is a legal person................................................................ 7

30.......... Director of the 1992 Fund is the legal representative of the 1992 Fund 7

Part 3.5—Compensation                                                                                                     8

31.......... Certain provisions of the 1992 Convention to have the force of law. 8

32.......... Claims for compensation.................................................................... 8

33.......... 1992 Fund may intervene in proceedings under the Protection of the Sea (Civil Liability) Act 1981      9

34.......... Regulations to give effect to Article 8 of the 1992 Convention......... 9

Part 3.6—Contributions to the 1992 Fund                                                               10

Division 1—Liability to make contributions                                                   10

35.......... Liability to contribute to the 1992 Fund.......................................... 10

36.......... Amount of contributions.................................................................. 10

37.......... When contributions are due and payable.......................................... 10

38.......... Transitional....................................................................................... 11

Division 2—Recovery of contributions etc.                                                    12

39.......... Late payment penalty...................................................................... 12

40.......... 1992 Fund to be paid amounts equal to amounts of contributions.. 12

41.......... Recovery of contributions and late payment penalty...................... 13

42.......... Regulations relating to recovery of contributions etc....................... 13

Division 3—Record‑keeping and returns etc.                                              14

43.......... Authority to inform 1992 Fund....................................................... 14

44.......... Record‑keeping and returns etc........................................................ 14

45.......... Failure to give information or returns............................................... 15

46.......... False information or returns............................................................. 16

Chapter 3A—The 2003 Protocol                                                                                  17

Part 3A.1—Outline of Chapter                                                                                      17

46A....... Simplified outline.............................................................................. 17

Part 3A.2—Interpretation                                                                                                18

46B....... Interpretation.................................................................................... 18

Part 3A.3—Legal recognition of the Supplementary Fund                            19

46C....... Supplementary Fund is a legal person.............................................. 19

46D....... Director of the Supplementary Fund is the legal representative of the Supplementary Fund                19

Part 3A.4—Compensation                                                                                                20

46E........ Certain provisions of the 2003 Protocol to have the force of law.... 20

46F........ Claims for compensation.................................................................. 20

46G....... Supplementary Fund may intervene in proceedings under the Protection of the Sea (Civil Liability) Act 1981      21

46H....... Regulations to give effect to Article 8 of the 2003 Protocol............ 21

Part 3A.5—Contributions to the Supplementary Fund                                    22

Division 1—Liability to make contributions                                                   22

46J........ Liability to contribute to the Supplementary Fund......................... 22

46K....... Amount of contributions.................................................................. 22

46L........ When contributions are due and payable.......................................... 23

Division 2—Recovery of contributions etc.                                                    24

46M...... Late payment penalty...................................................................... 24

46N....... Supplementary Fund to be paid amounts equal to amounts of contributions         24

46P........ Recovery of contributions and late payment penalty...................... 25

46Q....... Regulations relating to recovery of contributions etc....................... 25

Division 3—Record‑keeping and returns etc.                                              26

46R....... Authority to inform Supplementary Fund....................................... 26

46S........ Record‑keeping and returns etc........................................................ 26

46T....... Failure to give information or returns............................................... 27

46U....... False information or returns............................................................. 28

Chapter 4—Miscellaneous                                                                                              29

46V....... Treatment of partnerships................................................................ 29

46W...... Treatment of unincorporated associations....................................... 29

47.......... Regulations....................................................................................... 30

Schedule 1—International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971                                                                           31

Schedule 2—Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971                                  56

Schedule 3—Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971      60

Schedule 4—Resolution LEG.2(82)                                                                            80

Notes                                                                                                                                            83


An Act relating to oil pollution damage

Chapter 1Preliminary

  

  

1  Short title [see Note 1]

                   This Act may be cited as the Protection of the Sea (Oil Pollution Compensation Funds) Act 1993.

2  Commencement [see Note 1]

             (1)  Chapters 1, 2 and 4 commence on a day to be fixed by Proclamation. The day must not be earlier than the day on which the 1971 Convention enters into force for Australia.

             (2)  Part 3.1 commences on a day to be fixed by Proclamation. The day must not be earlier than the day on which Australia’s denunciation of the 1971 Convention takes effect.

             (3)  Chapter 3 (other than Part 3.1) commences on a day to be fixed by Proclamation. The day must not be earlier than the day on which the 1992 Protocol enters into force for Australia.

3  Interpretation

                   In this Act, unless the contrary intention appears :

Australia, when used in a geographical sense, includes all the external Territories.

Authority means the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990.

the original Convention means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, done at Brussels on 18 December 1971 (a copy of the English text of the original Convention is set out in Schedule 1).

the Supplementary Fund means The International Oil Pollution Compensation Supplementary Fund 2003 established by the 2003 Protocol.

the 1971 Convention means the original Convention as amended by the 1976 Protocol.

the 1971 Fund means The International Oil Pollution Compensation Fund established by the original Convention.

the 1976 Protocol means the Protocol of 1976 to amend the original Convention, done at London on 19 November 1976 (a copy of the English text of the 1976 Protocol is set out in Schedule 2).

the 1992 Convention means the original Convention as amended by the 1976 Protocol and the 1992 Protocol.

the 1992 Fund means The International Oil Pollution Compensation Fund 1992 established by the 1992 Convention.

the 1992 Protocol means the Protocol of 1992 to amend the 1971 Convention, done at London on 27 November 1992 (a copy of the English text of the 1992 Protocol is set out in Schedule 3), as amended by resolution LEG.2(82) adopted by the Legal Committee of the International Maritime Organization on 18 October 2000 (a copy of the English text of which is set out in Schedule 4).

the 2003 Protocol means the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 done at London on 16 May 2003.

Note:          The text of the 2003 Protocol is set out in Australian Treaty Series [2005] ATNIF 21. In 2008, the text of the 2003 Protocol in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

4  Act to bind Crown

             (1)  This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.

             (2)  The Crown is not liable to be prosecuted for an offence against, or arising out of, this Act.

5  Operation of Act

                   This Act applies both within and outside Australia and extends to every external Territory.

5A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences created by this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

 

Chapter 3The 1992 Convention

Part 3.1Repeal of Chapter 2

  

26  Repeal of Chapter 2

             (1)  Chapter 2 is repealed.

             (2)  The regulations may make such transitional or savings provisions as are necessary or convenient as a result of the repeal of Chapter 2.


 

Part 3.2Outline of Chapter

  

27  Simplified outline

                   The following is a simplified outline of this Chapter:

                     (a)  the 1992 Fund is liable to provide compensation for certain oil pollution damage (Part 3.5);

                     (b)  certain persons who receive oil in Australian ports and terminals are liable to contribute to the 1992 Fund (Part 3.6);

                     (c)  the Australian Maritime Safety Authority is empowered to collect information about contributors and give the information to the 1992 Fund (Part 3.6).

Diagram showing flow of money

 

Oil receivers make contributions to 1992 Fund

$

Ü



1992 Fund

$

Ü

Certain persons entitled to receive compensation from 1992 Fund


 

Part 3.3Interpretation

  

28  Interpretation

                   Unless the contrary intention appears, an expression used in this Chapter and in the 1992 Convention has the same meaning in this Chapter as in the 1992 Convention.


 

Part 3.4Legal recognition of the 1992 Fund

  

29  1992 Fund is a legal person

                   For the purposes of this Chapter, the 1992 Fund has the same legal personality as a company incorporated under the Corporations Act 2001 and, in particular, may sue and be sued.

30  Director of the 1992 Fund is the legal representative of the 1992 Fund

                   For the purposes of this Chapter, the Director of the 1992 Fund is the legal representative of the 1992 Fund.


 

Part 3.5Compensation

  

31  Certain provisions of the 1992 Convention to have the force of law

             (1)  The following provisions of the 1992 Convention have the force of law as part of the law of the Commonwealth:

Articles 1, 3, 4 and 6, paragraphs 1, 3, 5 and 6 of Article 7, Article 9, Article 35, Article 36 bis, paragraph (e) of Article 36 quater and Article 36 quinquies.

             (2)  For the purposes of paragraph 7 of Article 4 of the 1992 Convention as so having the force of law, a request by the Authority is taken to be a request by Australia.

32  Claims for compensation

             (1)  This section applies to an action against the 1992 Fund for compensation under Article 4 of the 1992 Convention.

             (2)  The action may be brought in the Federal Court of Australia or in the Supreme Court of a State or Territory.

             (3)  The court in which an action has been brought may, by order, transfer the proceedings to another court that has jurisdiction with respect to the action.

             (4)  The transfer may be made at any stage of the proceedings.

             (5)  The court may transfer proceedings on application or on its own initiative.

             (6)  If proceedings are transferred from a court:

                     (a)  all documents filed, and money or guarantees lodged, in that court in those proceedings must be transmitted by the Registrar or other proper officer of that court to the Registrar or other proper officer of the court to which the proceedings are transferred; and

                     (b)  the court to which the proceedings are transferred must proceed as if:

                              (i)  the proceedings had originally been instituted in that court; and

                             (ii)  the same proceedings had been taken in that court as had been taken in the court from which the proceedings were transferred.

33  1992 Fund may intervene in proceedings under the Protection of the Sea (Civil Liability) Act 1981

                   The 1992 Fund may intervene in proceedings for compensation arising under Part II of the Protection of the Sea (Civil Liability) Act 1981.

34  Regulations to give effect to Article 8 of the 1992 Convention

             (1)  The regulations may make provision for and in relation to giving effect to Article 8 of the 1992 Convention, including:

                     (a)  provision for investing the Supreme Courts of the States with federal jurisdiction and conferring, to the extent that the Constitution permits, jurisdiction on the Supreme Courts of the Territories, with respect to matters arising under regulations made for the purposes of this section; and

                     (b)  provision for investing jurisdiction on the Federal Court of Australia with respect to matters arising under regulations made for the purposes of this section; and

                     (c)  provision fixing fees to be paid in respect of any matters under regulations made for the purposes of this section.

             (2)  Subsection (1) does not limit the power of a judge or judges of a court to make rules of court with respect to a matter that is not provided for in regulations made for the purposes of that subsection.


 

Part 3.6Contributions to the 1992 Fund

Division 1Liability to make contributions

35  Liability to contribute to the 1992 Fund

             (1)  Article 10 of the 1992 Convention (other than subparagraph 2(b)), in so far as it relates to ports or terminal installations in Australia, has the force of law as part of the law of the Commonwealth.

             (2)  A person is not liable to contribute to the 1992 Fund because of this Part unless the contributions are imposed by an Act other than this Act.

             (3)  For the purposes of Article 10 of the 1992 Convention as applied by subsection (1), a person (the first person) is an associated person in relation to another person (the second person) if, and only if:

                     (a)  both the first person and the second person are bodies corporate; and

                     (b)  the first person and the second person are related to each other within the meaning of section 50 of the Corporations Act 2001.

             (4)  For the purposes of this Part (including a provision of the 1992 Convention as applied by this Part), a contribution required to be paid because of this Part is payable to the 1992 Fund as agent of the Commonwealth.

36  Amount of contributions

                   Paragraphs 2 and 3 of Article 12 of the 1992 Convention, in so far as they relate to Australia, have the force of law as part of the law of the Commonwealth.

37  When contributions are due and payable

                   Contributions required to be paid by a person because of this Part are due and payable on the day ascertained under paragraph 4 of Article 12 of the 1992 Convention.

38  Transitional

                   Article 36 ter of the 1992 Convention, in so far as it relates to Australia, has the force of law as part of the law of the Commonwealth.


 

Division 2Recovery of contributions etc.

39  Late payment penalty

             (1)  If:

                     (a)  any annual contribution payable by a person because of this Part remains unpaid after the time when it became due for payment; and

                     (b)  the Internal Regulations of the 1992 Fund have fixed, or provided for a method of determining, one or more annual interest rates (IR rates) in accordance with paragraph 1 of Article 13 of the 1992 Convention;

the person is liable to pay, by way of penalty, an amount (late payment penalty). Late payment penalty is calculated at the annual percentage rate equal to whichever of the IR rates is applicable to the person’s circumstances, on the amount unpaid, computed from that time.

             (2)  Late payment penalty is payable to the 1992 Fund on behalf of the Commonwealth.

40  1992 Fund to be paid amounts equal to amounts of contributions

             (1)  Amounts received, or purporting to be received, under section 35 or 39 must be paid to the Commonwealth.

             (2)  If an amount is paid to the Commonwealth under subsection (1), the Commonwealth must pay to the 1992 Fund an amount equal to that amount.

             (3)  A payment of an amount to the 1992 Fund under subsection (2) is subject to the condition that, if the Commonwealth becomes liable to refund the whole or part of that amount, the 1992 Fund must pay to the Commonwealth an amount equivalent to the amount that the Commonwealth is liable to refund.

             (4)  The Consolidated Revenue Fund is appropriated for the purposes of subsection (2).

41  Recovery of contributions and late payment penalty

             (1)  The following amounts may be recovered by the 1992 Fund, on behalf of the Commonwealth, as debts due to the Commonwealth:

                     (a)  contributions that are required to be paid because of this Part and that are due and payable;

                     (b)  late payment penalty that is due and payable.

             (2)  For the purposes of an action or proceeding under subsection (1), liability to costs is to be determined as if the 1992 Fund were a party to the action or proceeding and the Commonwealth were not a party.

             (3)  The 1992 Fund is not entitled to recover from the Commonwealth any costs or other expenses it incurs in recovering an amount referred to in subsection (1).

42  Regulations relating to recovery of contributions etc.

             (1)  The regulations may make provision for and in relation to the following:

                     (a)  the methods by which contributions required to be paid because of this Part may be paid;

                     (b)  the methods by which late payment penalty may be paid;

                     (c)  refunds of, or of overpayments of, contributions.

             (2)  Without limiting paragraphs (1)(a) and (b), regulations made for the purposes of those paragraphs may make provision for and in relation to the making of payments using electronic funds transfer systems.


 

Division 3Record‑keeping and returns etc.

43  Authority to inform 1992 Fund

             (1)  Article 15 of the 1992 Convention, in so far as it relates to Australia, has the force of law as part of the law of the Commonwealth.

             (2)  For the purposes of paragraphs 1 and 2 of Article 15 of the 1992 Convention as so having the force of law, an obligation imposed on Australia is taken to be imposed on the Authority.

             (3)  The Authority may inform the 1992 Fund of such additional matters relating to contributions as the Authority considers appropriate.

44  Record‑keeping and returns etc.

             (1)  The regulations may make provision for and in relation to requiring a person:

                     (a)  to keep and retain records, where the records are relevant to ascertaining the person’s liability to make contributions required to be paid because of this Part; and

                     (b)  to give information and returns to the Authority, where the information or returns are relevant to ascertaining a person’s liability to make contributions required to be paid because of this Part; and

                     (c)  to:

                              (i)  produce documents to the Authority; or

                             (ii)  make copies of documents and give the copies to the Authority;

                            where the documents are relevant to ascertaining a person’s liability to make contributions required to be paid because of this Part.

             (2)  The regulations may provide that information or returns given to the Authority in accordance with a requirement covered by paragraph (1)(b) must be verified by statutory declaration.

             (3)  A person is entitled to be paid by the Authority reasonable compensation for making copies in the course of complying with a requirement covered by subparagraph (1)(c)(ii).

             (4)  A person is not excused from giving information or a return or producing a document or a copy of a document under regulations made for the purposes of this Division on the ground that the information or return or the production of the document or copy might tend to incriminate the person or expose the person to a penalty. However:

                     (a)  giving the information or return or producing the document or copy; or

                     (b)  any information, return, document or thing obtained as a direct or indirect consequence of giving the information or return or producing the document or copy;

is not admissible in evidence against the person in:

                     (c)  criminal proceedings other than proceedings under, or arising out of, section 45 or 46; or

                     (d)  proceedings for recovery of an amount of late payment penalty.

45  Failure to give information or returns

             (1)  A person commits an offence if:

                     (a)  the person is required under regulations made for the purposes of this Division to give any information or return to the Authority; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes the requirement.

Penalty:  300 penalty units.

             (2)  Strict liability applies to paragraph (1)(a).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  In this section:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

46  False information or returns

                   A person must not, in purported compliance with regulations made for the purposes of this Division, intentionally give information or a return that, to the person’s knowledge, is false or misleading in a material particular.

Penalty:  500 penalty units.


 

Chapter 3AThe 2003 Protocol

Part 3A.1Outline of Chapter

  

46A  Simplified outline

             (1)  The following is a simplified outline of this Chapter:

                     (a)  the Supplementary Fund is liable to provide compensation for certain oil pollution damage (Part 3A.4);

                     (b)  certain persons who receive oil in Australian ports and terminals are liable to contribute to the Supplementary Fund (Division 1 of Part 3A.5);

                     (c)  the Australian Maritime Safety Authority is empowered to collect information about contributors and give information to the Supplementary Fund (Division 3 of Part 3A.5).

             (2)  The purpose of the Supplementary Fund is to provide compensation to a person who has established a claim for compensation for certain oil pollution damage and who has not been able to obtain full and adequate compensation for the claim from the 1992 Fund, because the damage does or may exceed the compensation limit for that Fund.

Diagram showing flow of money

 


 

Part 3A.2Interpretation

  

46B  Interpretation

                   Unless the contrary intention appears, an expression used in this Chapter and in the 2003 Protocol has the same meaning in this Chapter as in the 2003 Protocol.


 

Part 3A.3Legal recognition of the Supplementary Fund

  

46C  Supplementary Fund is a legal person

                   For the purposes of this Chapter, the Supplementary Fund has the same legal personality as a company incorporated under the Corporations Act 2001 and, in particular, may sue and be sued.

46D  Director of the Supplementary Fund is the legal representative of the Supplementary Fund

                   For the purposes of this Chapter, the Director of the Supplementary Fund is the legal representative of the Supplementary Fund.


 

Part 3A.4Compensation

  

46E  Certain provisions of the 2003 Protocol to have the force of law

                   The following provisions of the 2003 Protocol have the force of law as part of the law of the Commonwealth:

                     (a)  Article 1;

                     (b)  Article 3;

                     (c)  Article 4;

                     (d)  Article 5, except to the extent that it imposes an obligation on the Assembly;

                     (e)  Article 6;

                      (f)  paragraph 1 of Article 7, to the extent that it applies paragraphs 1, 5 and 6 of Article 7 of the 1992 Convention to actions for compensation brought against the Supplementary Fund in accordance with paragraph 1 of Article 4 of the 2003 Protocol;

                     (g)  paragraphs 2 and 3 of Article 7;

                     (h)  Article 9;

                      (i)  paragraphs 2, 3 and 4 of Article 15, except to the extent that they impose an obligation on the Assembly.

46F  Claims for compensation

             (1)  This section applies to an action against the Supplementary Fund for compensation under Article 4 of the 2003 Protocol.

             (2)  The action may be brought in the Federal Court of Australia or in the Supreme Court of a State or Territory.

             (3)  The court in which an action has been brought may, by order, transfer the proceedings to another court that has jurisdiction with respect to the action.

             (4)  The transfer may be made at any stage of the proceedings.

             (5)  The court may transfer proceedings on application or on its own initiative.

             (6)  If proceedings are transferred from a court:

                     (a)  all documents filed, and money or guarantees lodged, in that court in those proceedings must be transmitted by the Registrar or other proper officer of that court to the Registrar or other proper officer of the court to which the proceedings are transferred; and

                     (b)  the court to which the proceedings are transferred must proceed as if:

                              (i)  the proceedings had originally been instituted in that court; and

                             (ii)  the same proceedings had been taken in that court as had been taken in the court from which the proceedings were transferred.

46G  Supplementary Fund may intervene in proceedings under the Protection of the Sea (Civil Liability) Act 1981

                   The Supplementary Fund may intervene in proceedings for compensation arising under Part II of the Protection of the Sea (Civil Liability) Act 1981.

46H  Regulations to give effect to Article 8 of the 2003 Protocol

             (1)  The regulations may make provision for and in relation to giving effect to Article 8 of the 2003 Protocol, including:

                     (a)  provision for investing the Supreme Courts of the States with federal jurisdiction and conferring, to the extent that the Constitution permits, jurisdiction on the Supreme Courts of the Territories, with respect to matters arising under regulations made for the purposes of this section; and

                     (b)  provision for investing jurisdiction on the Federal Court of Australia with respect to matters arising under regulations made for the purposes of this section; and

                     (c)  provision for fixing fees to be paid in respect of any matters under regulations made for the purposes of this section.

             (2)  Subsection (1) does not limit the power of a judge or judges of a court to make rules of court with respect to a matter that is not provided for in regulations made for the purposes of that subsection.


 

Part 3A.5Contributions to the Supplementary Fund

Division 1Liability to make contributions

46J  Liability to contribute to the Supplementary Fund

             (1)  Article 10 of the 2003 Protocol, in so far as it relates to ports or terminal installations in Australia, has the force of law as part of the law of the Commonwealth.

             (2)  A person is not liable to contribute to the Supplementary Fund because of this Part unless the contributions are imposed by an Act other than this Act.

             (3)  For the purposes of Article 10 of the 2003 Protocol as applied by subsection (1), a person (the first person) is an associated person in relation to another person (the second person) if, and only if:

                     (a)  both the first person and the second person are bodies corporate; and

                     (b)  the first person and the second person are related to each other within the meaning of section 50 of the Corporations Act 2001.

             (4)  For the purposes of this Part (including a provision of the 2003 Protocol as applied by this Part), a contribution required to be paid because of this Part is payable to the Supplementary Fund as agent of the Commonwealth.

46K  Amount of contributions

                   Paragraphs 2 and 3 of Article 11 (except to the extent that they impose obligations on the Assembly), and Article 18, of the 2003 Protocol, in so far as they relate to Australia, have the force of law as part of the law of the Commonwealth.

46L  When contributions are due and payable

                   Contributions required to be paid by a person because of this Part are due and payable on the day ascertained under paragraph 4 of Article 11 of the 2003 Protocol.


 

Division 2Recovery of contributions etc.

46M  Late payment penalty

             (1)  If:

                     (a)  any annual contribution payable by a person because of this Part remains unpaid after the time when it became due for payment; and

                     (b)  the Internal Regulations of the 1992 Fund have fixed, or provided for a method of determining, one or more annual interest rates (IR rates) in accordance with paragraph 1 of Article 13 of the 1992 Convention;

the person is liable to pay, by way of penalty, an amount (late payment penalty). Late payment penalty is calculated at the annual percentage rate equal to whichever of the IR rates is applicable to the person’s circumstances, on the amount unpaid, computed from that time.

             (2)  Late payment penalty is payable to the Supplementary Fund on behalf of the Commonwealth.

46N  Supplementary Fund to be paid amounts equal to amounts of contributions

             (1)  Amounts received, or purporting to be received, under section 46J or 46M must be paid to the Commonwealth.

             (2)  If an amount is paid to the Commonwealth under subsection (1), the Commonwealth must pay to the Supplementary Fund an amount equal to that amount.

             (3)  A payment of an amount to the Supplementary Fund under subsection (2) is subject to the condition that, if the Commonwealth becomes liable to refund the whole or part of that amount, the Supplementary Fund must pay to the Commonwealth an amount equivalent to the amount that the Commonwealth is liable to refund.

             (4)  The Consolidated Revenue Fund is appropriated for the purposes of subsection (2).

46P  Recovery of contributions and late payment penalty

             (1)  The following amounts may be recovered by the Supplementary Fund, on behalf of the Commonwealth, as debts due to the Commonwealth:

                     (a)  contributions that are required to be paid because of this Part and that are due and payable;

                     (b)  late payment penalty that is due and payable.

             (2)  For the purposes of an action or proceeding under subsection (1), liability to costs is to be determined as if the Supplementary Fund were a party to the action or proceeding and the Commonwealth were not a party.

             (3)  The Supplementary Fund is not entitled to recover from the Commonwealth any costs or other expenses it incurs in recovering an amount referred to in subsection (1).

46Q  Regulations relating to recovery of contributions etc.

             (1)  The regulations may make provision for and in relation to the following:

                     (a)  the methods by which contributions required to be paid because of this Part may be paid;

                     (b)  the methods by which late payment penalty may be paid;

                     (c)  refunds of, or of overpayments of, contributions.

             (2)  Without limiting paragraphs (1)(a) and (b), regulations made for the purposes of those paragraphs may make provision for and in relation to the making of payments using electronic funds transfer systems.


 

Division 3Record‑keeping and returns etc.

46R  Authority to inform Supplementary Fund

             (1)  Article 13, paragraph 1 of Article 15, and Article 20 of the 2003 Protocol, in so far as they relate to Australia, have the force of law as part of the law of the Commonwealth.

             (2)  For the purposes of the following provisions of the 2003 Protocol:

                     (a)  Article 13; and

                     (b)  paragraph 1 of Article 15; and           

                     (c)  Article 20, in so far as it relates to annual communications made after the instrument referred to in paragraph 4 of Article 19 is deposited;

as so having the force of law, an obligation imposed on Australia is taken to be imposed on the Authority.

             (3)  The Authority may inform the Supplementary Fund of such additional matters relating to contributions as the Authority considers appropriate.

46S  Record‑keeping and returns etc.

             (1)  The regulations may make provision for and in relation to requiring a person:

                     (a)  to keep and retain records, where the records are relevant to ascertaining the person’s liability to make contributions required to be paid because of this Part; and

                     (b)  to give information and returns to the Authority, where the information or returns are relevant to ascertaining a person’s liability to make contributions required to be paid because of this Part; and

                     (c)  to:

                              (i)  produce documents to the Authority; or

                             (ii)  make copies of documents and give the copies to the Authority;

                            where the documents are relevant to ascertaining a person’s liability to make contributions required to be paid because of this Part.

             (2)  The regulations may provide that information or returns given to the Authority in accordance with a requirement covered by paragraph (1)(b) must be verified by statutory declaration.

             (3)  A person is entitled to be paid by the Authority reasonable compensation for making copies in the course of complying with a requirement covered by subparagraph (1)(c)(ii).

             (4)  A person is not excused from giving information or a return or producing a document or a copy of a document under regulations made for the purposes of this Division on the ground that the information or return or the production of the document or copy might tend to incriminate the person or expose the person to a penalty. However:

                     (a)  giving the information or return or producing the document or copy; or

                     (b)  any information, return, document or thing obtained as a direct or indirect consequence of giving the information or return or producing the document or copy;

is not admissible in evidence against the person in:

                     (c)  criminal proceedings other than proceedings under, or arising out of, section 46R or 46S; or

                     (d)  proceedings for recovery of an amount of late payment penalty.

46T  Failure to give information or returns

             (1)  A person commits an offence if:

                     (a)  the person is required under regulations made for the purposes of this Division to give any information or return to the Authority; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes the requirement.

Penalty:  300 penalty units.

             (2)  Strict liability applies to paragraph (1)(a).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  In this section:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

46U  False information or returns

                   A person must not, in purported compliance with regulations made for the purposes of this Division, intentionally give information or a return that, to the person’s knowledge, is false or misleading in a material particular.

Penalty:  500 penalty units.


 

Chapter 4Miscellaneous

  

  

46V  Treatment of partnerships

             (1)  This Act applies to a partnership as if it were a person, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the partnership by this Act is imposed on each partner instead, but may be discharged by any of the partners.

             (3)  An offence against this Act that would otherwise be committed by the partnership is taken to have been committed by each partner.

             (4)  A partner does not commit an offence because of subsection (3) if the partner:

                     (a)  does not know of the circumstances that constitute the contravention of the provision concerned; or

                     (b)  knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the partner becomes aware of those circumstances.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code.

46W  Treatment of unincorporated associations

             (1)  This Act applies to an unincorporated association as if it were a person, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the association by this Act is imposed on each member of the association’s committee of management instead, but may be discharged by any of the members.

             (3)  An offence against this Act that would otherwise be committed by the association is taken to have been committed by each member of the association’s committee of management.

             (4)  A member of the association’s committee of management does not commit an offence because of subsection (3) if the member:

                     (a)  does not know of the circumstances that constitute the contravention of the provision concerned; or

                     (b)  knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code.

47  Regulations

             (1)  The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  The regulations may prescribe penalties not exceeding a fine of 10 penalty units for offences against the regulations.


Schedule 1International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971

Section 3

(Supplementary to the International Convention on Civil Liability for Oil Pollution Damage, 1969)

The States Parties to the present Convention,

BEING PARTIES to the International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels on 29 November 1969,

CONSCIOUS of the dangers of pollution posed by the world‑wide maritime carriage of oil in bulk,

CONVINCED of the need to ensure that adequate compensation is available to persons who suffer damage caused by pollution resulting from the escape or discharge of oil from ships,

CONSIDERING that the International Convention of 29 November 1969, on Civil Liability for Oil Pollution Damage, by providing a regime for compensation for pollution damage in Contracting States and for the costs of measures, wherever taken, to prevent or minimize such damage, represents a considerable progress towards the achievement of this aim,

CONSIDERING HOWEVER that this regime does not afford full compensation for victims of oil pollution damage in all cases while it imposes an additional financial burden on shipowners,

CONSIDERING FURTHER that the economic consequences of oil pollution damage resulting from the escape or discharge of oil carried in bulk at sea by ships should not exclusively be borne by the shipping industry but should in part be borne by the oil cargo interests,

CONVINCED of the need to elaborate a compensation and indemnification system supplementary to the International Convention on Civil Liability for Oil Pollution Damage with a view to ensuring that full compensation will be available to victims of oil pollution incidents and that the shipowners are at the same time given relief in respect of the additional financial burdens imposed on them by the said Convention,

TAKING NOTE of the Resolution on the Establishment of an International Compensation Fund for Oil Pollution Damage which was adopted on 29 November 1969 by the International Legal Conference on Marine Pollution Damage,

HAVE AGREED as follows:

General Provisions

Article 1

For the purposes of this Convention

1. “Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels on 29 November 1969.

2. “Ship”, “Person”, “Owner”, “Oil”, “Pollution Damage”, “Preventive Measures”, “Incident” and “Organization”, have the same meaning as in Article I of the Liability Convention, provided however that, for the purposes of these terms, “oil” shall be confined to persistent hydrocarbon mineral oils.

3. “Contributing Oil” means crude oil and fuel oil as defined in sub‑paragraphs (a) and (b) below:

(a)   “Crude Oil” means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation. It also includes crude oils from which certain distillate fractions have been removed (sometimes referred to as “topped crudes”) or to which certain distillate fractions have been added (sometimes referred to as “spiked” or “reconstituted” crudes).

(b)   “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.

4. “Franc” means the unit referred to in Article V, paragraph 9 of the Liability Convention.

5. “Ship’s tonnage” has the same meaning as in Article V, paragraph 10, of the Liability Convention.

6. “Ton”, in relation to oil, means a metric ton.

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

8. “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 off‑shore and linked to such site.

9. Where an incident consists of a series of occurrences, it shall be treated as having occurred on the date of the first such occurrence.

Article 2

1. An International Fund for compensation for pollution damage, to be named “The International Oil Pollution Compensation Fund” and hereinafter referred to as “The Fund”, is hereby established with the following aims:

(a)   to provide compensation for pollution damage to the extent that the protection afforded by the Liability Convention is inadequate;

(b)   to give relief to shipowners in respect of the additional financial burden imposed on them by the Liability Convention, such relief being subject to conditions designed to ensure compliance with safety at sea and other conventions;

(c)   to give effect to the related purposes set out in this Convention.

2. The Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognize the Director of the Fund (hereinafter referred to as “The Director”) as the legal representative of the Fund.

Article 3

This Convention shall apply:

1. With regard to compensation according to Article 4, exclusively to pollution damage caused on the territory including the territorial sea of a Contracting State, and to preventive measures taken to prevent or minimize such damage;

2. With regard to indemnification of shipowners and their guarantors according to Article 5, exclusively in respect of pollution damage caused on the territory, including the territorial sea, of a State party to the Liability Convention by a ship registered in or flying the flag of a Contracting State and in respect of preventive measures taken to prevent or minimize such damage.

Compensation and indemnification

Article 4

1. For the purpose of fulfilling its function under Article 2, paragraph 1(a), the Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of the Liability Convention,

(a)   because no liability for the damage arises under the Liability Convention;

(b)   because the owner liable for the damage under the Liability Convention is financially incapable of meeting his obligations in full and any financial security that may be provided under Article VII of that Convention does not cover or is insufficient to satisfy the claims for compensation for the damage; an owner being treated as financially incapable of meeting his obligations and a financial security being treated as insufficient if the person suffering the damage has been unable to obtain full satisfaction of the amount of compensation due under the Liability Convention after having taken all reasonable steps to pursue the legal remedies available to him;

(c)   because the damage exceeds the owner’s liability under the Liability Convention as limited pursuant to Article V, paragraph 1, of that Convention or under the terms of any other international Convention in force or open for signature, ratification or accession at the date of this Convention.

Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall be treated as pollution damage for the purposes of this Article.

2. The Fund shall incur no obligation under the preceding paragraph if:

(a)   it proves that the pollution damage resulted from an act of war, hostilities, civil war or insurrection or was caused by oil which has escaped or been discharged from a warship or other ship owned or operated by a State and used, at the time of the incident, only on Government non commercial service; or

(b)   the claimant cannot prove that the damage resulted from an incident involving one or more ships.

3. If the Fund proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the Fund may be exonerated wholly or partially from its obligation to pay compensation to such person provided, however, that there shall be no such exoneration with regard to such preventive measures which are compensated under paragraph 1. The Fund shall in any event be exonerated to the extent that the shipowner may have been exonerated under Article III, paragraph 3, of the Liability Convention.

4. (a)    Except as otherwise provided in sub‑paragraph (b) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the 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.

(b)   The aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 450 million francs.

5. Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under the Liability Convention and this Convention shall be the same for all claimants.

6. The Assembly of the Fund (hereinafter referred to as “the Assembly”) may, having regard to the experience of incidents which have occurred and in particular the amount of damage resulting therefrom and to changes in the monetary values, decide that the amount of 450 million francs referred to in paragraph 4, sub‑paragraphs (a) and (b), shall be changed; provided, however, that this amount shall in no case exceed 900 million francs or be lower than 450 million francs. The changed amount shall apply to incidents which occur after the date of the decision effecting the change.

7. The Fund shall, at the request of a Contracting State, use its good offices as necessary to assist that State to secure promptly such personnel, material and services as are necessary to enable the State to take measures to prevent or mitigate pollution damage arising from an incident in respect of which the Fund may be called upon to pay compensation under this Convention.

8. The Fund may on conditions to be laid down in the Internal Regulations provide credit facilities with a view to the taking of preventive measures against pollution damage arising from a particular incident in respect of which the Fund may be called upon to pay compensation under this Convention.

Article 5

1. For the purpose of fulfilling its function under Article 2, paragraph 1(b), the Fund shall indemnify the owner and his guarantor for that portion of the aggregate amount of liability under the Liability Convention 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,

provided, however, that the Fund shall incur no obligation under this paragraph where the pollution damage resulted from the wilful misconduct of the owner himself.

2. The Assembly may decide that the Fund shall, on conditions to be laid down in the Internal Regulations, assume the obligations of a guarantor in respect of ships referred to in Article 3, paragraph 2, with regard to the portion of liability referred to in paragraph 1 of this Article. However, the Fund shall assume such obligations only if the owner so requests and if he maintains adequate insurance or other financial security covering the owner’s liability under the Liability Convention up to an amount equivalent to 1,500 francs for each ton of the ship’s tonnage or an amount of 125 million francs, whichever is the less. If the Fund assumes such obligations, the owner shall in each Contracting State be considered to have complied with Article VII of the Liability Convention in respect of the portion of his liability mentioned above.

3. The Fund may be exonerated wholly or partially from its obligations under paragraph 1 towards the owner and his guarantor if the Fund proves that as a result of the actual fault or privity of the owner:

(a)   the ship from which the oil causing the pollution damage escaped did not comply with the requirements laid down in:

(i)    the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended in 1962; or

(ii)   the International Convention for the Safety of Life at Sea, 1960; or

(iii)   the International Convention on Load Lines, 1966; or

(iv)  the International Regulations for Preventing Collisions at Sea, 1960; or

(v)   any amendments to the above‑mentioned Conventions which have been determined as being of an important nature in accordance with Article XVI(5) of the Convention mentioned under (i), Article IX(e) of the Convention mentioned under (ii) or Article 29(3)(d) or (4)(d) of the Convention mentioned under (iii), provided, however, that such amendments had been in force for at least twelve months at the time of the incident;

and

(b)   the incident or damage was caused wholly or partially by such non‑compliance.

The provisions of this paragraph shall apply irrespective of whether the Contracting State in which the ship was registered or whose flag it was flying is a Party to the relevant Instrument.

4. Upon the entry into force of a new Convention designed to replace, in whole or in part, any of the Instruments specified in paragraph 3, the Assembly may decide at least six months in advance a date on which the new Convention will replace such Instrument or part thereof for the purpose of paragraph 3. However, any State Party to this Convention may declare to the Director before that date that it does not accept such replacement; in which case the decision of the Assembly shall have no effect in respect of a ship registered in, or flying the flag of, that State at the time of the incident. Such a declaration may be withdrawn at any later date and shall in any event cease to have effect when the State in question becomes a party to such new Convention.

5. A ship complying with the requirements in an amendment to an Instrument specified in paragraph 3 or with requirements in a new Convention, where the amendment or Convention is designed to replace in whole or in part such Instrument, shall be considered as complying with the requirements in the said Instrument for the purposes of paragraph 3.

6. Where the Fund, acting as a guarantor by virtue of paragraph 2, has paid compensation for pollution damage in accordance with the Liability Convention, it shall have a right of recovery from the owner if and to the extent that the Fund would have been exonerated pursuant to paragraph 3 from its obligations under paragraph 1 to indemnify the owner.

7. Expenses reasonably incurred and sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall be treated as included in the owner’s liability for the purposes of this Article.

Article 6

1. Rights to compensation under Article 4 or indemnification under Article 5 shall be extinguished unless an action is brought thereunder or a notification has been made pursuant to Article 7, paragraph 6, within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage.

2. Notwithstanding paragraph 1, the right of the owner or his guarantor to seek indemnification from the Fund pursuant to Article 5, paragraph 1, shall in no case be extinguished before the expiry of a period of six months as from the date on which the owner or his guarantor acquired knowledge of the bringing of an action against him under the Liability Convention.

Article 7

1. Subject to the subsequent provisions of this Article, any action against the Fund for compensation under Article 4 or indemnification under Article 5 of this Convention shall be brought only before a court competent under Article IX of the Liability Convention in respect of actions against the owner who is or who would, but for the provisions of Article III, paragraph 2, of that Convention, have been liable for pollution damage caused by the relevant incident.

2. Each Contracting State shall ensure that its courts possess the necessary jurisdiction to entertain such actions against the Fund as are referred to in paragraph 1.

3. Where an action for compensation for pollution damage has been brought before a court competent under Article IX of the Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Fund for compensation or indemnification under the provisions of Article 4 or 5 of this Convention in respect of the same damage. However, where an action for compensation for pollution damage under the Liability Convention has been brought before a court in a State Party to the Liability Convention but not to this Convention, any action against the Fund under Article 4 or under Article 5, paragraph 1, of this Convention shall at the option of the claimant be brought either before a court of the State where the Fund has its headquarters or before any court of a State Party to this Convention competent under Article IX of the Liability Convention.

4. Each Contracting State shall ensure that the Fund shall have the right to intervene as a party to any legal proceedings instituted in accordance with Article IX of the Liability Convention before a competent court of that State against the owner of a ship or his guarantor.

5. Except as otherwise provided in paragraph 6, the Fund shall not be bound by any judgment or decision in proceedings to which it has not been a party or by any settlement to which it is not a party.

6. Without prejudice to the provisions of paragraph 4, where an action under the Liability Convention for compensation for pollution damage has been brought against an owner or his guarantor before a competent court in a Contracting State, each party to the proceedings shall be entitled under the national law of that State to notify the Fund of the proceedings. Where such notification has been made in accordance with the formalities required by the law of the court seized and in such time and in such a manner that the Fund has in fact been in a position effectively to intervene as a party to the proceedings, any judgment rendered by the court in such proceedings shall, after it has become final and enforceable in the State where the judgment was given, become binding upon the Fund in the sense that the facts and findings in that judgment may not be disputed by the Fund even if the Fund has not actually intervened in the proceedings.

Article 8

Subject to any decision concerning the distribution referred to in Article 4, paragraph 5, any judgment given against the Fund by a court having jurisdiction in accordance with Article 7, paragraphs 1 and 3, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in Article X of the Liability Convention.

Article 9

1. Subject to the provisions of Article 5, the Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund in accordance with Article 4, paragraph 1, of this Convention, acquire by subrogation the rights that the person so compensated may enjoy under the Liability Convention against the owner or his guarantor.

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

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

Contributions

Article 10

1. Contributions to the fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in Article 11, paragraph 1, as regards initial contributions and in Article 12, paragraphs 2(a) or (b), as regards annual contributions, has received in total quantities exceeding 150,000 tons:

(a)   in the ports or terminal installations in the territory of that State contributing oil carried by sea to such ports or terminal installations; and

(b)   in any installations situated in the territory of that Contracting State contributing oil which has been carried by sea and discharged in a port or terminal installation of a non‑Contracting State, provided that contributing oil shall only be taken into account by virtue of this sub‑paragraph on first receipt in a Contracting State after its discharge in that non‑Contracting State.

2. (a)    For the purposes of paragraph 1, where the quantity of contributing oil received in the territory of a Contracting State by any person in a calendar year when aggregated with the quantity of contributing oil received in the same Contracting State in that year by any associated person or persons exceeds 150,000 tons, such person shall pay contributions in respect of the actual quantity received by him notwithstanding that that quantity did not exceed 150,000 tons.

(b)   “Associated person” means any subsidiary or commonly controlled entity. The question whether a person comes within this definition shall be determined by the national law of the State concerned.

Article 11

1. In respect of each Contracting State initial contributions shall be made of an amount which shall for each person referred to in Article 10 be calculated on the basis of a fixed sum for each ton of contributing oil received by him during the calendar year preceding that in which this Convention entered into force for that State.

2. The sum referred to in paragraph 1 shall be determined by the Assembly within two months after the entry into force of this Convention. In performing this function the Assembly shall, to the extent possible, fix the sum in such a way that the total amount of initial contributions would, if contributions were to be made in respect of 90 per cent of the quantities of contributing oil carried by sea in the world, equal 75 million francs.

3. The initial contributions shall in respect of each Contracting State be paid within three months following the date at which the Convention entered into force for that State.

Article 12

1. With a view to assessing for each person referred to in Article 10 the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the Assembly shall for each calendar year make an estimate in the form of a budget of:

(i)    Expenditure

(a)   costs and expenses of the administration of the Fund in the relevant year and any deficit from operations in preceding years;

(b)   payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4 or 5, including repayment on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident does not exceed 15 million francs;

(c)   payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4 or 5, including repayments on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident is in excess of 15 million francs;

(ii)   Income

(a)   surplus funds from operations in preceding years, including any interest;

(b)   initial contributions to be paid in the course of the year;

(c)   annual contributions, if required to balance the budget;

(d)   any other income.

2. For each person referred to in Article 10 the amount of his annual contribution shall be determined by the Assembly and shall be calculated in respect of each Contracting State:

(a)   in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(a) and (b) on the basis of a fixed sum for each ton of contributing oil received in the relevant State by such persons during the preceding calendar year; and

(b)   in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(c) of this Article on the basis of a fixed sum for each ton of contributing oil received by such person during the calendar year preceding that in which the incident in question occurred, provided that State was a party to this Convention at the date of the incident.

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

4. The Assembly shall decide the portion of the annual contribution which shall be immediately paid in cash and decide on the date of payment. The remaining part of each annual contribution shall be paid upon notification by the Director.

5. The Director may, in cases and in accordance with conditions to be laid down in the Internal Regulations of the Fund, require a contributor to provide financial security for the sums due from him.

6. Any demand for payments made under paragraph 4 shall be called rateably from all individual contributors.

Article 13

1. The amount of any contribution due under Article 12 and which is in arrear shall bear interest at a rate which shall be determined by the Assembly for each calendar year provided that different rates may be fixed for different circumstances.

2. Each Contracting State shall ensure that any obligation to contribute to the Fund arising under this Convention in respect of oil received within the territory of that State is fulfilled and shall take any appropriate measures under its law, including the imposing of such sanctions as it may deem necessary, with a view to the effective execution of any such obligation; provided, however, that such measures shall only be directed against those persons who are under an obligation to contribute to the Fund.

3. Where a person who is liable in accordance with the provisions of Articles 10 and 11 to make contributions to the Fund does not fulfil his obligations in respect of any such contribution or any part thereof and is in arrear for a period exceeding three months, the Director shall take all appropriate action against such person on behalf of the Fund with a view to the recovery of the amount due. However, where the defaulting contributor is manifestly insolvent or the circumstances otherwise so warrant, the Assembly may, upon recommendation of the Director, decide that no action shall be taken or continued against the contributor.

Article 14

1. Each Contracting State may at the time when it deposits its instrument of ratification or accession or at any time thereafter declare that it assumes itself obligations that are incumbent under this Convention on any person who is liable to contribute to the Fund in accordance with Article 10, paragraph 1, in respect of oil received within the territory of that State. Such declaration shall be made in writing and shall specify which obligations are assumed.

2. Where a declaration under paragraph 1 is made prior to the entry into force of this Convention in accordance with Article 40, it shall be deposited with the Secretary‑General of the Organization who shall after the entry into force of the Convention communicate the declaration to the Director.

3. A declaration under paragraph 1 which is made after the entry into force of this Convention shall be deposited with the Director.

4. A declaration made in accordance with this Article may be withdrawn by the relevant State giving notice thereof in writing to the Director. Such notification shall take effect three months after the Director’s receipt thereof.

5. Any State which is bound by a declaration made under this Article shall, in any proceedings brought against it before a competent court in respect of any obligation specified in the declaration, waive any immunity that it would otherwise be entitled to invoke.

Article 15

1. Each Contracting State shall ensure that any person who receives contributing oil within its territory in such quantities that he is liable to contribute to the Fund appears on a list to be established and kept up to date by the Director in accordance with the subsequent provisions of this Article.

2. For the purposes set out in paragraph 1, each Contracting State shall communicate, at a time and in the manner to be prescribed in the Internal Regulations, to the Director the name and address of any person who in respect of that State is liable to contribute to the Fund pursuant to Article 10, as well as data on the relevant quantities of contributing oil received by any such person during the preceding calendar year.

3. For the purposes of ascertaining who are, at any given time, the persons liable to contribute to the Fund in accordance with Article 10, paragraph 1, and of establishing, where applicable, the quantities of oil to be taken into account for any such person when determining the amount of his contribution, the list shall be prima facie evidence of the facts stated therein.

Organization and Administration

Article 16

The Fund shall have an Assembly, a Secretariat headed by a Director and, in accordance with the provisions of Article 21, an Executive Committee.

Assembly

Article 17

The Assembly shall consist of all Contracting States to this Convention.

Article 18

The functions of the Assembly shall, subject to the provisions of Article 26, be:

1. to elect at each regular session its Chairman and two Vice‑Chairmen who shall hold office until the next regular session;

2. to determine its own rules of procedure, subject to the provisions of this Convention;

3. to adopt Internal Regulations necessary for the proper functioning of the Fund;

4. to appoint the Director and make provisions for the appointment of such other personnel as may be necessary and determine the terms and conditions of service of the Director and other personnel;

5. to adopt the annual budget and fix the annual contributions;

6. to appoint auditors and approve the accounts of the Fund;

7. to approve settlements of claims against the Fund, to take decisions in respect of the distribution among claimants of the available amount of compensation in accordance with Article 4, paragraph 5, and to determine the terms and conditions according to which provisional payments in respect of claims shall be made with a view to ensuring that victims of pollution damage are compensated as promptly as possible;

8. to elect the members of the Assembly to be represented on the Executive Committee, as provided in Articles 21, 22 and 23;

9. to establish any temporary or permanent subsidiary body it may consider to be necessary;

10. to determine which non‑Contracting States and which inter‑governmental and international non‑governmental organizations shall be admitted to take part, without voting rights, in meetings of the Assembly, the Executive Committee, and subsidiary bodies;

11. to give instructions concerning the administration of the Fund to the Director, the Executive Committee and subsidiary bodies;

12. to review and approve the reports and activities of the Executive Committee;

13. to supervise the proper execution of the Convention and of its own decisions;

14. to perform such other functions as are allocated to it under the Convention or are otherwise necessary for the proper operation of the Fund.

Article 19

1. Regular sessions of the Assembly shall take place once every calendar year upon convocation by the Director; provided, however, that if the Assembly allocates to the Executive Committee the functions specified in Article 18, paragraph 5, regular sessions of the Assembly shall be held once every two years.

2. Extraordinary sessions of the Assembly shall be convened by the Director at the request of the Executive Committee or of at least one‑third of the members of the Assembly and may be convened on the Director’s own initiative after consultation with the Chairman of the Assembly. The Director shall give members at least thirty days’ notice of such sessions.

Article 20

A majority of the members of the Assembly shall constitute a quorum for its meetings.

Executive Committee

Article 21

The Executive Committee shall be established at the first regular session of the Assembly after the date on which the number of Contracting States reaches fifteen.

Article 22

1. The Executive Committee shall consist of one‑third of the members of the Assembly but of not less than seven or more than fifteen members. Where the number of members of the Assembly is not divisible by three, the one‑third referred to shall be calculated on the next higher number which is divisible by three.

2. When electing the members of the Executive Committee the Assembly shall:

(a)   secure an equitable geographical distribution of the seats on the Committee on the basis of an adequate representation of Contracting States particularly exposed to the risks of oil pollution and of Contracting States having large tanker fleets; and

(b)   elect one half of the members of the Committee, or in case the total number of members to be elected is uneven, such number of the members as is equivalent to one half of the total number less one, among those Contracting States in the territory of which the largest quantities of oil to be taken into account under Article 10 were received during the preceding calendar year, provided that the number of States eligible under this sub‑paragraph shall be limited as shown in the table below:

 

Total number of Members on the Committee

Number of States eligible under sub‑paragraph (b)

Number of States to be elected under sub‑paragraph (b)

7

5

3

8

6

4

9

6

4

10

8

5

11

8

5

12

9

6

13

9

6

14

11

7

15

11

7

3. A member of the Assembly which was eligible but was not elected under sub‑paragraph (b) shall not be eligible to be elected for any remaining seat on the Executive Committee.

Article 23

1. Members of the Executive Committee shall hold office until the end of the next regular session of the Assembly.

2. Except to the extent that may be necessary for complying with the requirements of Article 22, no State Member of the Assembly may serve on the Executive Committee for more than two consecutive terms.

Article 24

The Executive Committee shall meet at least once every calendar year at thirty days’ notice upon convocation by the Director, either on his own initiative or at the request of its Chairman or of at least one‑third of its members. It shall meet at such places as may be convenient.

Article 25

At least two‑thirds of the members of the Executive Committee shall constitute a quorum for its meetings.

Article 26

1. The functions of the Executive Committee shall be:

(a)   to elect its Chairman and adopt its own rules of procedure, except as otherwise provided in this Convention;

(b)   to assume and exercise in place of the Assembly the following functions:

(i)    making provision for the appointment of such personnel, other than the Director, as may be necessary and determining the terms and conditions of service of such personnel;

(ii)   approving settlements of claims against the Fund and taking all other steps envisaged in relation to such claims in Article 18, paragraph 7;

(iii)   giving instructions to the Director concerning the administration of the Fund and supervising the proper execution, by him of the Convention, of the decisions of the Assembly and of the Committee’s own decisions; and

(c)   to perform such other functions as are allocated to it by the Assembly.

2. The Executive Committee shall each year prepare and publish a report of the activities of the Fund during the previous calendar year.

Article 27

Members of the Assembly who are not members of the Executive Committee shall have the right to attend its meetings as observers.

Secretariat

Article 28

1. The Secretariat shall comprise the Director and such staff as the administration of the Fund may require.

2. The Director shall be the legal representative of the Fund.

Article 29

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

2. The Director shall in particular:

(a)   appoint the personnel required for the administration of the Fund;

(b)   take all appropriate measures with a view to the proper administration of the Fund’s assets;

(c)   collect the contributions due under this Convention while observing in particular the provisions of Article 13, paragraph 3;

(d)   to the extent necessary to deal with claims against the Fund and carry out the other functions of the Fund, employ the services of legal, financial and other experts;

(e)   take all appropriate measures for dealing with claims against the Fund within the limits and on conditions to be laid down in the Internal Regulations, including the final settlement of claims without the prior approval of the Assembly or the Executive Committee where these Regulations so provide;

(f)   prepare and submit to the Assembly or to the Executive Committee, as the case may be, the financial statements and budget estimates for each calendar year;

(g)   assist the Executive Committee in the preparation of the report referred to in Article 26, paragraph 2;

(h)   prepare, collect and circulate the papers, documents, agenda, minutes and information that may be required for the work of the Assembly, the Executive Committee and subsidiary bodies.

Article 30

In the performance of their duties the Director and the staff and experts appointed by him shall not seek or receive instructions from any Government or from any authority external to the Fund. They shall refrain from any action which might reflect on their position as international officials. Each Contracting State on its part undertakes to respect the exclusively international character of the responsibilities of the Director and the staff and experts appointed by him, and not to seek to influence them in the discharge of their duties.

Finances

Article 31

1. Each Contracting State shall bear the salary, travel and other expenses of its own delegation to the Assembly and of its representatives on the Executive Committee and on subsidiary bodies.

2. Any other expenses incurred in the operation of the Fund shall be borne by the Fund.

Voting

Article 32

The Following provisions shall apply to voting in the Assembly and the Executive Committee:

(a)   each member shall have one vote;

(b)   except as otherwise provided in Article 33, decisions of the Assembly and the Executive Committee shall be by a majority vote of the members present and voting;

(c)   decisions where a three‑fourths or a two‑thirds majority is required shall be by a three‑fourths or two‑thirds majority vote, as the case may be, of those present;

(d)   for the purpose of this Article the phrase “members present” means “members present at the meeting at the time of the vote”, and the phrase “members present and voting” means “members present and casting an affirmative or negative vote”. Members who abstain from voting shall be considered as not voting.

Article 33

1. The following decisions of the Assembly shall require a three‑fourths majority:

(a)   an increase in accordance with Article 4, paragraph 6, in the maximum amount of compensation payable by the Fund;

(b)   a determination, under Article 5, paragraph 4, relating to the replacement of the Instruments referred to in that paragraph;

(c)   the allocation to the Executive Committee of the functions specified in Article 18, paragraph 5.

2. The following decisions of the Assembly shall require a two‑thirds majority:

(a)   a decision under Article 13, paragraph 3, not to take or continue action against a contributor;

(b)   the appointment of the Director under Article 18, paragraph 4;

(c)   the establishment of subsidiary bodies, under Article 18, paragraph 9.

Article 34

1. The Fund, its assets, income, including contributions, and other property shall enjoy in all Contracting States exemption from all direct taxation.

2. When the Fund makes substantial purchases of movable or immovable property, or has important work carried out which is necessary for the exercise of its official activities and the cost of which includes indirect taxes or sales taxes, the Governments of Member States shall take, whenever possible, appropriate measures for the remission or refund of the amount of such duties and taxes.

3. No exemptions shall be accorded in the case of duties, taxes or dues which merely constitute payment for public utility services.

4. The Fund shall enjoy exemption from all customs duties, taxes and other related taxes on articles imported or exported by it or on its behalf for its official use. Articles thus imported shall not be transferred either for consideration or gratis on the territory of the country into which they have been imported except on conditions agreed by the government of that country.

5. Persons contributing to the Fund and victims and owners of ships receiving compensation from the Fund shall be subject to the fiscal legislation of the State where they are taxable, no special exemption or other benefit being conferred on them in this respect.

6. Information relating to individual contributors supplied for the purpose of this Convention shall not be divulged outside the Fund except in so far as it may be strictly necessary to enable the Fund to carry out its functions including the bringing and defending of legal proceedings.

7. Independently of existing or future regulations concerning currency or transfers, Contracting States shall authorize the transfer and payment of any contribution to the Fund and of any compensation paid by the Fund without any restriction.

Transitional Provisions

Article 35

1. The Fund shall incur no obligation whatsoever under Article 4 or 5 in respect of incidents occurring within a period of one hundred and twenty days after the entry into force of this Convention.

2. Claims for compensation under Article 4 and claims for indemnification under Article 5, arising from incidents occurring later than one hundred and twenty days but not later than two hundred and forty days after the entry into force of this Convention may not be brought against the Fund prior to the elapse of the two hundred and fortieth day after the entry into force of this Convention.

Article 36

The Secretary‑General of the Organization shall convene the first session of the Assembly. This session shall take place as soon as possible after entry into force of this Convention and, in any case, not more than thirty days after such entry into force.

Final Clauses

Article 37

1. This Convention shall be open for signature by the States which have signed or which accede to the Liability Convention, and by any State represented at the Conference on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. The Convention shall remain open for signature until 31 December 1972.

2. Subject to paragraph 4, this Convention shall be ratified, accepted or approved by the States which have signed it.

3. Subject to paragraph 4, this Convention is open for accession by States which did not sign it.

4. This Convention may be ratified, accepted, approved or acceded to, only by States which have ratified, accepted, approved or acceded to the Liability Convention.

Article 38

1. Ratification, acceptance, approval or accession shall be effected by the deposit of a formal instrument to that effect with the Secretary‑General of the Organization.

2. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Convention with respect to all existing Contracting States or after the completion of all measures required for the entry into force of the amendment with respect to those Parties shall be deemed to apply to the Convention as modified by the amendment.

Article 39

Before this Convention comes into force a State shall, when depositing an instrument referred to in Article 38, paragraph 1, and annually thereafter at a date to be determined by the Secretary‑General of the Organization, communicate to him the name and address of any person who in respect of that State would be liable to contribute to the Fund pursuant to Article 10 as well as data on the relevant quantities of contributing oil received by any such person in the territory of that State during the preceding calendar year.

Article 40

1. This Convention shall enter into force on the ninetieth day following the date on which the following requirements are fulfilled:

(a)   at least eight States have deposited instruments of ratification, acceptance, approval or accession with the Secretary‑General of the Organization, and

(b)   the Secretary‑General of the Organization has received information in accordance with Article 39 that those persons in such States who would be liable to contribute pursuant to Article 10 have received during the preceding calendar year a total quantity of at least 750 million tons of contributing oil.

2. However, this Convention shall not enter into force before the Liability Convention has entered into force.

3. For each State which subsequently ratifies, accepts, approves or accedes to it, this Convention shall enter into force on the ninetieth day after deposit by such State of the appropriate instrument.

Article 41

1. This Convention may be denounced by any Contracting State at any time after the date on which the the Convention comes into force for that State.

2. Denunciation shall be effected by the deposit of an instrument with the Secretary‑General of the Organization.

3. A denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after its deposit with the Secretary‑General of the Organization.

4. Denunciation of the Liability Convention shall be deemed to be a denunciation of this Convention. Such denunciation shall take effect on the same date as the denunciation of the Liability Convention takes effect according to paragraph 3 of Article XVI of that convention.

5. Notwithstanding a denunciation by a Contracting State pursuant to this Article, any provisions of this Convention relating to the obligations to make contributions under Article 10 with respect to an incident referred to in Article 12, paragraph 2(b), and occurring before the denunciation takes effect shall continue to apply.

Article 42

1. Any Contracting State may, within ninety days after the deposit of an instrument of denunciation the result of which it considers will significantly increase the level of contributions for remaining Contracting States, request the Director to convene an extraordinary session of the Assembly. The Director shall convene the Assembly to meet not later than sixty days after receipt of the request.

2. The Director may convene, on his own initiative, an extraordinary session of the Assembly to meet within sixty days after the deposit of any instrument of denunciation, if he considers that such denunciation will result in a significant increase in the level of contributions for the remaining Contracting States.

3. If the Assembly at an extraordinary session convened in accordance with paragraph 1 or 2 decides that the denunciation will result in a significant increase in the level of contributions for the remaining Contracting States, any such State may, not later than one hundred and twenty days before the date on which that denunciation takes effect, denounce this Convention with effect from the same date.

Article 43

1. This Convention shall cease to be in force on the date when the number of Contracting States falls below three.

2. Contracting States which are bound by this Convention on the date before the day it ceases to be in force shall enable the Fund to exercise its functions as described under Article 44 and shall, for that purpose only, remain bound by this Convention.

Article 44

1. If this Convention ceases to be in force, the Fund shall nevertheless

(a)   meet its obligations in respect of any incident occurring before the Convention ceased to be in force;

(b)   be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under sub‑paragraph (a), including expenses for the administration of the Fund necessary for this purpose.

2. The Assembly shall take all appropriate measures to complete the winding up of the Fund, including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the Fund.

3. For the purposes of this Article the Fund shall remain a legal person.

Article 45

1. A Conference for the purpose of revising or amending this Convention may be convened by the Organization.

2. The Organization shall convene a Conference of the Contracting States for the purpose of revising or amending this Convention at the request of not less than one‑third of all Contracting States.

Article 46

1. This Convention shall be deposited with the Secretary‑General of the Organization.

2. The Secretary‑General of the Organization shall:

(a)   inform all States which have signed or acceded to this Convention of:

(i)    each new signature or deposit of instrument and the date thereof;

(ii)   the date of entry into force of the Convention;

(iii)   any denunciation of the Convention and the date on which it takes effect;

(b)   transmit certified true copies of this Convention to all Signatory States and to all States which accede to the Convention.

Article 47

As soon as this Convention enters into force, a certified true copy thereof shall be transmitted by the Secretary‑General of the Organization to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

Article 48

This Convention is established in a single original in the English and French languages, both texts being equally authentic. Official translations in the Russian and Spanish languages shall be prepared by the Secretariat of the Organization and deposited with the signed original.

IN WITNESS WHEREOF the undersigned plenipotentiaries being duly authorized for that purpose have signed the present Convention.

DONE at Brussels this eighteenth day of December one thousand nine hundred and seventy‑one.


Schedule 2Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971

Section 3

THE PARTIES TO THE PRESENT PROTOCOL,

HAVING CONSIDERED the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, done at Brussels on 18 December 1971;

HAVE AGREED AS FOLLOWS:

ARTICLE I

For the purpose of the present Protocol:

1. “Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971.

2. “Liability Convention” has the same meaning as in the Convention.

3. “Organization” has the same meaning as in the Convention.

4. “Secretary‑General” means the Secretary‑General of the Organization.

ARTICLE II

Article 1, paragraph 4 of the Convention is replaced by the following text:

“Unit of Account” or “Monetary Unit” means the unit of account or monetary unit as the case may be, referred to in Article V of the Liability Convention, as amended by the Protocol thereto adopted on 19 November 1976.

ARTICLE III

The amounts referred to in the Convention shall wherever they appear be amended as follows:

(a)   Article 4:

(i)    “450 million francs” is replaced by “30 million units of account or 450 million monetary units”;

(ii)   “900 million francs” is replaced by “60 million units of account or 900 million monetary units”.

(b)   In Article 5:

(i)    “1,500 francs” is replaced by “100 units of account or 1,500 monetary units”;

(ii)   “125 million francs” is replaced by “8,333,000 units of account or 125 million monetary units”;

(iii)   “2,000 francs” is replaced by “133 units of account or 2,000 monetary units”;

(iv)  “210 million francs” is replaced by “14 million units of account or 210 million monetary units”;

(c)   In Article 11, “75 million francs” is replaced by “5 million units of account or 75 million monetary units”.

(d)   In Article 12, “15 million francs” is replaced by “1 million units of account or 15 million monetary units”.

ARTICLE IV

1. The present Protocol shall be open for signature by any State which has signed the Convention or acceded thereto and by any State invited to attend the Conference to Revise the Unit of Account Provisions in the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, held in London from 17 to 19 November 1976. The Protocol shall be open for signature from 1 February 1977 to 31 December 1977 at the headquarters of the Organization.

2. Subject to paragraph 4 of this Article, the present Protocol shall be subject to ratification, acceptance or approval by the States which have signed it.

3. Subject to paragraph 4 of this Article, this Protocol shall be open for accession by States which did not sign it. 4.

4. The present Protocol may be ratified, accepted, approved or acceded to by States Parties to the Convention.

ARTICLE V

1. Ratification, acceptance, approval or accession shall be effected by the deposit of a formal instrument to that effect with the Secretary‑General.

2. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to the present Protocol with respect to all existing Parties or after the completion of all measures required for the entry into force of the amendment with respect to all existing Parties shall be deemed to apply to the Protocol as modified by the amendment.

ARTICLE VI

1. The present Protocol shall enter into force for the States which have ratified, accepted, approved or acceded to it on the ninetieth day following the date on which the following requirements are fulfilled:

(a)   at least eight States have deposited instruments of ratification, acceptance, approval or accession with the Secretary‑General, and

(b)   the Secretary‑General has received information in accordance with Article 39 of the Convention that those persons in such States who would be liable to contribute pursuant to Article 10 of the Convention have received during the preceding calendar year a total quantity of at least 750 million tons of contributing oil.

2. However, the present Protocol shall not enter into force before the Convention has entered into force.

3. For each State which subsequently ratifies, accepts, approves or accedes to it, the present Protocol shall enter into force on the ninetieth day after deposit by such State of the appropriate instrument.

ARTICLE VII

1. The present Protocol may be denounced by any Party at any time after the date on which the Protocol enters into force for that party.

2. Denunciation shall be effected by the deposit of an instrument with the Secretary‑General.

3. Denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after its deposit with the Secretary‑General.

ARTICLE VIII

1. A conference for the purpose of revising or amending the present Protocol may be convened by the Organization.

2. The Organization shall convene a Conference of Parties to the present Protocol for the purpose of revising or amending it at the request of not less than one‑third of the Parties.

ARTICLE IX

1. The present Protocol shall be deposited with the Secretary‑General.

2. The Secretary‑General shall:

(a)   inform all States which have signed the present Protocol or acceded thereto of:

(i)    each new signature or deposit of an instrument together with the date thereof;

(ii)   the date of entry into force of the present Protocol;

(iii)   the deposit of any instrument of denunciation of the present Protocol together with the date on which the denunciation takes effect;

(iv)  any amendments to the present Protocol;

(b)   transmit certified true copies of the present Protocol to all States which have signed the present Protocol or acceded thereto.

ARTICLE X

As soon as this Protocol enters into force, a certified true copy thereof shall be transmitted by the Secretary‑General to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

ARTICLE XI

The present Protocol is established in a single original in the English and French languages, both texts being equally authentic. Official translations in the Russian and Spanish languages shall be prepared by the Secretariat of the Organization and deposited with the signed original.

DONE AT LONDON this nineteenth day of November one thousand nine hundred and seventy‑six.

IN WITNESS WHEREOF the undersigned being duly authorized for that purpose have signed the present Protocol.


Schedule 3Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971

Section 3

THE PARTIES TO THE PRESENT PROTOCOL,

HAVING CONSIDERED the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, and the 1984 Protocol thereto,

HAVING NOTED that the 1984 Protocol to that Convention, which provides for improved scope and enhanced compensation, has not entered into force,

AFFIRMING the importance of maintaining the viability of the international oil pollution liability and compensation system,

AWARE OF the need to ensure the entry into force of the content of the 1984 Protocol as soon as possible,

RECOGNIZING the advantage for the States Parties of arranging for the amended Convention to coexist with and be supplementary to the original Convention for a transitional period,

CONVINCED that the economic consequences of pollution damage resulting from the carriage of oil in bulk at sea by ships should continue to be shared by the shipping industry and by the oil cargo interests,

BEARING IN MIND the adoption of the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969,

HAVE AGREED AS FOLLOWS:

Article 1

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

Article 2

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

1. Paragraph 1 is replaced by the following text:

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

2. After paragraph 1 a new paragraph is inserted as follows:

1 bis. “1971 Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1971 Fund Convention as amended by that Protocol.

3. Paragraph 2 is replaced by the following text:

2. “Ship”, “Person”, “Owner”, “Oil”, “Pollution Damage”, Preventive Measures”, “Incident”, and “Organization” have the same meaning as in Article 1 of the 1992 Liability Convention.

4. Paragraph 4 is replaced by the following text:

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

5. Paragraph 5 is replaced by the following text:

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

6. Paragraph 7 is replaced by the following text:

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

Article 3

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

Paragraph 1 is replaced by the following text:

1. An international Fund for compensation for pollution damage, to be named “The International Oil Pollution Compensation Fund 1992” and hereinafter referred to as “the Fund”, is hereby established with the following aims:

(a)   to provide compensation for pollution damage to the extent that the protection afforded by the 1992 Liability Convention is inadequate;

(b)   to give effect to the related purposes set out in this Convention.

Article 4

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

This Convention shall apply exclusively:

(a)   to pollution damage caused:

(i)    in the territory, including the territorial sea, of a Contracting State, and

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

(b)   to preventive measures, wherever taken, to prevent or minimize such damage.

Article 5

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

Article 6

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

1. In paragraph 1 the five references to “the Liability Convention” are replaced by references to “the 1992 Liability Convention”.

2. Paragraph 3 is replaced by the following text:

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

3. Paragraph 4 is replaced by the following text:

4.(a) Except as otherwise provided in subparagraphs (b) and (c) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the 1992 Liability Convention for pollution damage within the scope of application of this Convention as defined in Article 3 shall not exceed 135 million units of account.

(b)   Except as otherwise provided in subparagraph (c), the aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional inevitable and irresistible character shall not exceed 135 million units of account.

(c)   The maximum amount of compensation referred to in subparagraphs (a) and (b) shall be 200 million units of account with respect to any incident occurring during any period when there are three Parties to this Convention in respect of which the combined relevant quantity of contributing oil received by persons in the territories of such Parties, during the preceding calendar year, equalled or exceeded 600 million tons.

(d)   Interest accrued on a fund constituted in accordance with Article V, paragraph 3, of the 1992 Liability Convention, if any, shall not be taken into account for the computation of the maximum compensation payable by the Fund under this Article.

(e)   The amounts mentioned in this Article shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the decision of the Assembly of the Fund as to the first date of payment of compensation.

4. Paragraph 5 is replaced by the following text:

5. Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Convention shall be the same for all claimants.

5. Paragraph 6 is replaced by the following text:

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

Article 7

Article 5 of the 1971 Fund Convention is deleted.

Article 8

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

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

2. Paragraph 2 is deleted.

Article 9

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

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

2. In paragraph 1 the words “or indemnification under Article 5” are deleted.

3. In the first sentence of paragraph 3 the words “or indemnification” and “or 5” are deleted.

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

Article 10

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

Article 11

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

1. Paragraph 1 is replaced by the following text:

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

2. In paragraph 2 the words “or indemnification” are deleted.

Article 12

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

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

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

Article 13

Article 11 of the 1971 Fund Convention is deleted.

Article 14

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

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

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

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

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

5. The opening phrase in paragraph 2 is replaced by the following text: The assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director shall, in respect of each Contracting State, calculate for each person referred to in Article 10 the amount of his annual contribution:

6. Paragraph 4 is replaced by the following text:

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

7. Paragraph 5 is replaced by the following text:

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

8. Paragraph 6 is deleted.

Article 15

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

1. Paragraph 1 is replaced by the following text:

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

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

Article 16

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

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

Article 17

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

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

Article 18

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

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

2. Paragraph 8 is deleted.

3. Paragraph 9 is replaced by the following text:

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

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

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

6. Paragraph 12 is deleted.

Article 19

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

1. Paragraph 1 is replaced by the following text:

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

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

Article 20

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

Article 21

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

1. Paragraph 1 is replaced by the following text:

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

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

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

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

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

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

Article 22

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

Article 23

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

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

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

Article 24

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

1. Paragraph 1 is deleted.

2. In paragraph 2 the paragraph number is deleted.

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

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

Article 25

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

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

Article 26

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

Article 36 bis

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

(a)   In the application of paragraph 1(a) of Article 2 of this Convention, the reference to the 1992 Liability Convention shall include reference to the International Convention on Civil Liability for Oil Pollution Damage, 1969, either in its original version or as amended by the Protocol thereto of 1976 (referred to in this Article as “the 1969 Liability Convention”), and also the 1971 Fund Convention.

(b)   Where an incident has caused pollution damage within the scope of this Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1969 Liability Convention, the 1971 Fund Convention and the 1992 Liability Convention, provided that, in respect of pollution damage within the scope of this Convention in respect of a Party to this Convention but not a Party to the 1971 Fund Convention, the Fund shall pay compensation to any person suffering pollution damage only if, and to the extent that, such person would have been unable to obtain full and adequate compensation had that State been party to each of the above‑mentioned Conventions.

(c)   In the application of Article 4 of this Convention, the amount to be taken into account in determining the aggregate amount of compensation payable by the Fund shall also include the amount of compensation actually paid under the 1969 Liability Convention, if any, and the amount of compensation actually paid or deemed to have been paid under the 1971 Fund Convention.

(d)   Paragraph 1 of Article 9 of this Convention shall also apply to the rights enjoyed under the 1969 Liability Convention.

Article 36 ter

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

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

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

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

Article 36 quater

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

(a)   The Secretariat of the Fund, established by the 1971 Fund Convention (hereinafter referred to as “the 1971 Fund”), headed by the Director, may also function as the Secretariat and the Director of the Fund.

(b)   If, in accordance with subparagraph (a), the Secretariat and the Director of the 1971 Fund also perform the function of Secretariat and Director of the Fund, the Fund shall be represented, in cases of conflict of interests between the 1971 Fund and the Fund, by the Chairman of the Assembly of the Fund.

(c)   The Director and the staff and experts appointed by him, performing their duties under this Convention and the 1971 Fund Convention, shall not be regarded as contravening the provisions of Article 30 of this Convention in so far as they discharge their duties in accordance with this Article.

(d)   The Assembly of the Fund shall endeavour not to take decisions which are incompatible with decisions taken by the Assembly of the 1971 Fund. If differences of opinion with respect to common administrative issues arise, the Assembly of the Fund shall try to reach a consensus with the Assembly of the 1971 Fund, in a spirit of mutual co‑operation and with the common aims of both organizations in mind.

(e)   The Fund may succeed to the rights, obligations and assets of the 1971 Fund if the Assembly of the 1971 Fund so decides, in accordance with Article 44, paragraph 2, of the 1971 Fund Convention.

(f)   The Fund shall reimburse to the 1971 Fund all costs and expenses arising from administrative services performed by the 1971 Fund on behalf of the Fund.

Article 36 quinquies

Final clauses

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

Article 27

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

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

FINAL CLAUSES

Article 28

Signature, ratification, acceptance, approval and accession

1. This Protocol shall be open for signature at London from 15 January 1993 to 14  January 1994 by any State which has signed the 1992 Liability Convention.

2. Subject to paragraph 4, this Protocol shall be ratified, accepted or approved by States which have signed it.

3. Subject to paragraph 4, this Protocol is open for accession by States which did not sign it.

4. This Protocol may be ratified, accepted, approved or acceded to only by States which have ratified, accepted, approved or acceded to the 1992 Liability Convention.

5. Ratification, acceptance, approval or accession shall be affected by the deposit of a formal instrument to that effect with the Secretary‑General of the Organization.

6. A state which is a Party to this Protocol but is not a Party to the 1971 Fund Convention shall be bound by the provisions of the 1971 Fund Convention as amended by this Protocol in relation to other Parties hereto, but shall not be bound by the provisions of the 1971 Fund Convention in relation to Parties thereto.

7. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to the 1971 Fund Convention as amended by this Protocol shall be deemed to apply to the Convention so amended, as modified by such amendment.

Article 29

Information on contributing oil

1. Before this Protocol comes into force for a State, that State shall, when depositing an instrument referred to in Article 28, paragraph 5, and annually thereafter at a date to be determined by the Secretary‑General of the Organization, communicate to him the name and address of any person who in respect of that State would be liable to contribute to the Fund pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol as well as data on the relevant quantities of contributing oil received by any such person in the territory of that State during the preceding calendar year.

2. During the transitional period, the Director shall, for Parties, communicate annually to the Secretary‑General of the Organization data on quantities of contributing oil received by persons liable to contribute to the Fund pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol.

Article 30

Entry into force

1. This Protocol shall enter into force twelve months following the date on which the following requirements are fulfilled:

(a)   at least eight States have deposited instruments of ratification, acceptance, approval or accession with the Secretary‑General of the Organization; and

(b)   the Secretary‑General of the Organization has received information in accordance with Article 29 that those persons who would be liable to contribute pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol have received during the preceding calendar year a total quantity of at least 450 million tons of contributing oil.

2. However, this Protocol shall not enter into force before the 1992 Liability Convention has entered into force.

3. For each State which ratifies, accepts, approves or accedes to this Protocol after the conditions in paragraph 1 for entry into force have been met, the Protocol shall enter into force twelve months following the date of the deposit by such State of the appropriate instrument.

4. Any State may, at the time of the deposit of its instrument of ratification, acceptance, approval or accession in respect of this Protocol declare that such instrument shall not take effect for the purpose of this Article until the end of the six‑month period in Article 31.

5. Any State which has made a declaration in accordance with the preceding paragraph may withdraw it at any time by means of a notification addressed to the Secretary‑General, of the Organization. Any such withdrawal shall take effect on the date the notification is received, and any State making such a withdrawal shall be deemed to have deposited its instrument of ratification, acceptance, approval or accession in respect of this Protocol on that date.

6. Any State which has made a declaration under Article 13, paragraph 2, of the Protocol of 1992 to amend the 1969 Liability Convention shall be deemed to have also made a declaration under paragraph 4 of this Article. Withdrawal of a declaration under the said Article 13, paragraph 2, shall be deemed to constitute withdrawal also under paragraph 5 of this Article.

Article 31

Denunciation of the 1969 and 1971 Conventions

Subject to Article 30, within six months following the date on which the following requirements are fulfilled:

(a)   at least eight States have become Parties to this Protocol or have deposited instruments of ratification, acceptance, approval or accession with the Secretary‑General of the Organization, whether or not subject to Article 30, paragraph 4, and

(b)   the Secretary‑General of the Organization has received information in accordance with Article 29 that those persons who are or would be liable to contribute pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol have received during the preceding calendar year a total quantity of at least 750 million tons of contributing oil;

each Party to this Protocol and each State which has deposited an instrument of ratification, acceptance, approval or accession, whether or not subject to Article 30, paragraph 4, shall, if Party thereto, denounce the 1971 Fund Convention and the 1969 Liability Convention with effect twelve months after the expiry of the above‑mentioned six‑month period.

Article 32

Revision and amendment

1. A conference for the purpose of revising or amending the 1992 Fund Convention may be convened by the Organization.

2. The Organization shall convene a Conference of Contracting States for the purpose of revising or amending the 1992 Fund Convention at the request of not less than one third of all Contracting States.

Article 33

Amendment of compensation limits

1. Upon the request of at least one quarter of the Contracting States, any proposal to amend the limits of amounts of compensation laid down in Article 4, paragraph 4, of the 1971 Fund Convention as amended by this Protocol shall be circulated by the Secretary‑General to all Members of the Organization and to all Contracting States.

2. Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization for consideration at a date at least six months after the date of its circulation.

3. All Contracting States to the 1971 Fund Convention as amended by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

4. Amendments shall be adopted by a two‑thirds majority of the Contracting States present and voting in the Legal Committee, expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States shall be present at the time of voting.

5. When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and in particular the amount of damage resulting therefrom and changes in the monetary values. It shall also take into account the relationship between the limits in Article 4, paragraph 4, of the 1971 Fund Convention as amended by this Protocol and those in Article V, paragraph 1, of the International Convention on Civil Liability for Oil Pollution Damage, 1992.

6. (a)    No amendment of the limits under this Article may be considered before 15 January 1998 nor less than five years from the date of entry into force of a previous amendment under this Article. No amendment under this Article shall be considered before this Protocol has entered into force.

(b)   No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1971 Fund Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from 15 January 1993.

(c)   No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1971 Fund Convention as amended by this Protocol multiplied by three.

7. Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification unless within that period not less than one quarter of the States that were Contracting States at the time of the adoption of the amendment by the Legal Committee have communicated to the Organization that they do not accept the amendment in which case the amendment is rejected and shall have no effect.

8. An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.

9. All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with Article 34, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

10. When an amendment has been adopted by the Legal Committee but the eighteen‑month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

Article 34

Denunciation

1. This Protocol may be denounced by any Party at any time after the date on which it enters into force for that Party.

2. Denunciation shall be effected by the deposit of an instrument with the Secretary‑General of the Organization.

3. A denunciation shall take effect twelve months, or such longer period as may be specified in the instrument of denunciation, after its deposit with the Secretary‑General of the Organization.

4. Denunciation of the 1992 Liability Convention shall be deemed to be a denunciation of this Protocol. Such denunciation shall take effect on the date on which denunciation of the Protocol of 1992 to amend the 1969 Liability Convention takes effect according to Article 16 of that Protocol.

5. Any Contracting State to this Protocol which has not denounced the 1971 Fund Convention and the 1969 Liability Convention as required by Article 31 shall be deemed to have denounced this Protocol with effect twelve months after the expiry of the six‑month period mentioned in that Article. As from the date on which the denunciations provided for in Article 31 take effect, any Party to this Protocol which deposits an instrument of ratification, acceptance, approval or accession to the 1969 Liability Convention shall be deemed to have denounced this Protocol with effect from the date on which such instrument takes effect.

6. As between the Parties to this Protocol, denunciation by any of them of the 1971 Fund Convention in accordance with Article 41 thereof shall not be construed in any way as a denunciation of the 1971 Fund Convention as amended by this Protocol.

7. Notwithstanding a denunciation of this Protocol by a Party pursuant to this Article, any provisions of this Protocol relating to the obligations to make contributions under Article 10 of the 1971 Fund Convention as amended by this Protocol with respect to an incident referred to in Article 12, paragraph 2(b), of that amended Convention and occurring before the denunciation takes effect shall continue to apply.

Article 35

Extraordinary sessions of the Assembly

1. Any Contracting State may, within ninety days after the deposit of an instrument of denunciation the result of which it considers will significantly increase the level of contributions for the remaining Contracting States, request the Director to convene an extraordinary session of the Assembly. The Director shall convene the Assembly to meet not later than sixty days after receipt of the request.

2. The Director may convene, on his own initiative, an extraordinary session of the Assembly to meet within sixty days after the deposit of any instrument of denunciation, if he considers that such denunciation will result in a significant increase in the level of contributions of the remaining Contracting States.

3. If the Assembly at an extraordinary session convened in accordance with paragraph 1 or 2 decides that the denunciation will result in a significant increase in the level of contributions for the remaining Contracting States, any such State may, not later than one hundred and twenty days before the date on which the denunciation takes effect, denounce this Protocol with effect from the same date.

Article 36

Termination

1. This Protocol shall cease to be in force on the date when the number of Contracting States falls below three.

2. States which are bound by this Protocol on the day before the date it ceases to be in force shall enable the Fund to exercise its functions as described under Article 37 of this Protocol and shall, for that purpose only, remain bound by this Protocol.

Article 37

Winding up of the Fund

1. If this Protocol ceases to be in force, the Fund shall nevertheless:

(a)   meet its obligations in respect of any incident occurring before the Protocol ceased to be in force;

(b)   be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under subparagraph (a), including expenses for the administration of the Fund necessary for this purpose.

2. The Assembly shall take all appropriate measures to complete the winding up of the Fund including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the Fund.

3. For the purposes of this Article the Fund shall remain a legal person.

Article 38

Depositary

1. This Protocol and any amendments accepted under Article 33 shall be deposited with the Secretary‑General of the Organization.

2. The Secretary‑General of the Organization shall:

(a)   inform all States which have signed or acceded to this Protocol of:

(i)      each new signature or deposit of an instrument together with the date thereof;

(ii)      each declaration and notification under Article 30 including declarations and withdrawals deemed to have been made in accordance with that Article;

(iii)     the date of entry into force of this Protocol;

(iv)     the date by which denunciations provided for in Article 31 are required to be made;

(v)     any proposal to amend limits of amounts of compensation which has been made in accordance with Article 33, paragraph 1;

(vi)     any amendment which has been adopted in accordance with Article 33, paragraph 4;

(vii)    any amendment deemed to have been accepted under Article 33, paragraph 7, together with the date on which that amendment shall enter into force in accordance with paragraphs 8 and 9 of that Article;

(viii)   the deposit of an instrument of denunciation of this Protocol together with the date of the deposit and the date on which it takes effect;

(ix)     any denunciation deemed to have been made under Article 34, paragraph 5;

(x)     any communication called for by any Article in this Protocol;

(b)   transmit certified true copies of this Protocol to all Signatory States and to all States which accede to the Protocol.

3. As soon as this Protocol enters into force, the text shall be transmitted by the Secretary‑General of the Organization to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

Article 39

Languages

This Protocol is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

DONE AT LONDON this twenty‑seventh day of November one thousand nine hundred and ninety‑two.

IN WITNESS WHEREOF the undersigned being duly authorized for that purpose have signed this Protocol.


Schedule 4Resolution LEG.2(82)

Note:       See section 3.

  

  

RESOLUTION LEG.2(82)

adopted on 18 October 2000

AMENDMENTS OF THE LIMITS OF COMPENSATION IN THE PROTOCOL OF 1992 TO AMEND THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 1971

THE LEGAL COMMITTEE at its eighty‑second session:

            RECALLING Article 33(b) of the Convention on the International Maritime Organization (hereinafter referred to as the “IMO Convention”) concerning the functions of the Committee,

            MINDFUL of Article 36 of the IMO Convention concerning rules governing the procedures to be followed when exercising the functions conferred on it by or under any international convention or instrument,

            RECALLING FURTHER article 33 of the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (hereinafter referred to as the “1992 Fund Protocol”) concerning the procedures for amending the limits of the amounts of compensation set out in article 6(3) of the 1992 Fund Protocol,

            HAVING CONSIDERED amendments to the limits of the amounts of compensation proposed and circulated in accordance with the provisions of article 33(1) and (2) of the 1992 Fund Protocol,

1.         ADOPTS, in accordance with article 33(4) of the 1992 Fund Protocol, amendments to the limits of the amounts of compensation set out in article 6(3) of the 1992 Fund Protocol, as set out in the Annex to this resolution;

2.         DETERMINES, in accordance with article 33(7) of the 1992 Fund Protocol, that these amendments shall be deemed to have been accepted on 1 May 2002 unless, prior to that date, not less than one quarter of the States that were Contracting States on the date of the adoption of these amendments (being 18 October 2000) have communicated to the Organization that they do not accept these amendments;

3.         FURTHER DETERMINES that, in accordance with article 33(8) of the 1992 Fund Protocol, these amendments, deemed to have been accepted in accordance with paragraph 2 above, shall enter into force on 1 November 2003;

4.         REQUESTS the Secretary‑General, in accordance with articles 33(7) and 38(2)(vi) of the 1992 Fund Protocol, to transmit certified copies of the present resolution and the amendments contained in the Annex thereto to all States which have signed or acceded to the 1992 Fund Protocol; and

5.         FURTHER REQUESTS the Secretary‑General to transmit copies of the present resolution and its Annex to the Members of the Organization which have not signed or acceded to the 1992 Fund Protocol.

ANNEX

AMENDMENTS OF THE LIMITS OF COMPENSATION IN THE PROTOCOL OF 1992 TO AMEND THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 1971

Article 6(3) of the 1992 Fund Protocol is amended as follows:

            the reference in paragraph 4(a) to “135 million units of account” shall     read “203,000,000 units of account”;

            the reference in paragraph 4(b) to “135 million units of account” shall     read “203,000,000 units of account”; and

            the reference in paragraph 4(c) to “200 million units of account” shall     read “300,740,000 units of account”.


Notes to the Protection of the Sea (Oil Pollution Compensation Funds) Act 1993

Note 1

The Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 as shown in this compilation comprises Act No. 41, 1993 amended as indicated in the Tables below.

For repeal of Chapter 2 see section 26.

For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.

For all other relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

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

41, 1993

15 Oct 1993

S. 26: 15 May 1998 (see Gazette 1998, No. S214)
Ss. 27–46: 9 Oct 1996 (see Gazette 1996, No. S376)
Remainder: 8 Jan 1995 (see Gazette 1994, No. S462)

 

Corporations (Repeals, Consequentials and Transitionals) Act 2001

55, 2001

28 June 2001

Ss. 4–14 and Schedule 3 (items 439–443): 15 July 2001 (see Gazette 2001, No. S285) (a)

Ss. 4–14 [see Note 1]

Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2001

143, 2001

1 Oct 2001

2 Oct 2001

S. 4

Maritime Legislation Amendment Act 2003

7, 2003

19 Mar 2003

Schedule 1 (items 1–6): 1 Nov 2003
Schedule 1 (items 7–9): 20 Mar 2003
Remainder: Royal Assent

Sch. 1 (item 5)

Financial Framework Legislation Amendment Act 2005

8, 2005

22 Feb 2005

S. 4 and Schedule 1 (items 315, 316, 496): Royal Assent

S. 4 and Sch. 1 (item 496)

Protection of the Sea Legislation Amendment Act 2008

94, 2008

3 Oct 2008

Schedule 1 (items 16–22): 13 Oct 2009 (see F2009L03731)
Schedule 4 (item 1): (b)
Schedule 4 (item 2): (b)

Statute Law Revision Act 2010

8, 2010

1 Mar 2010

Schedule 5 (item 82): (c)


(a)     The Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 was amended by Schedule 3 (items 439–443) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:

                 (3)   Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.

(b)    Subsection 2(1) (items 8 and 9) of the Protection of the Sea Legislation Amendment Act 2008 provides as follows:

                 (1)   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

8.  Schedule 4, item 1

Immediately after the commencement of Chapter 3 (other than Part 3.1) of the Protection of the Sea (Oil Pollution Compensation Fund) Act 1993.

9 October 1996

9.  Schedule 4, item 2

Immediately after the commencement of Chapter 1 of the Protection of the Sea (Oil Pollution Compensation Fund) Act 1993.

8 January 1995

(c)     Subsection 2(1) (item 36) of the Statute Law Revision Act 2010 provides as follows:

                 (1)   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Provision(s)

Commencement

Date/Details

36.  Schedule 5, item 82

Immediately after the commencement of item 17 of Schedule 1 to the Protection of the Sea Legislation Amendment Act 2008.

13 October 2009


Table of Amendments

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

Provision affected

How affected

Chapter 1

 

S. 1......................................

am. No. 94, 2008

S. 3......................................

am. No. 55, 2001; No. 7, 2003; No. 94, 2008; No. 8, 2010

S. 5A...................................

ad. No. 143, 2001

Chapt. 2...............................

rep. No. 41, 1993

Ss. 6–25..............................

rep. No. 41, 1993

Chapter 3

 

Part 3.2

 

S. 27....................................

am. No. 94, 2008

Part 3.4

 

S. 29....................................

am. No. 55, 2001

Heading to s. 30..................

am. No. 94, 2008

S. 30....................................

am. No. 94, 2008

Part 3.6

 

Division 1

 

S. 35....................................

am. No. 55, 2001

Division 2

 

S. 40....................................

am. No. 8, 2005

Division 3

 

S. 45....................................

rs. No. 143, 2001

Chapter 3A

 

Chapt. 3A............................

ad. No. 94, 2008

Part 3A.1

 

S. 46A.................................

ad. No. 94, 2008

Part 3A.2

 

S. 46B.................................

ad. No. 94, 2008

Part 3A.3

 

Ss. 46C, 46D.......................

ad. No. 94, 2008

Part 3A.4

 

Ss. 46E–46H.......................

ad. No. 94, 2008

Part 3A.5

 

Division 1

 

Ss. 46J–46L........................

ad. No. 94, 2008

Division 2

 

Ss. 46M, 46N.......................

ad. No. 94, 2008

Ss. 46P, 46Q.......................

ad. No. 94, 2008

Division 3

 

Ss. 46R–46U.......................

ad. No. 94, 2008

Chapter 4

 

Heading to Chapt. 4.............

rs. No. 94, 2008

Ss. 46V, 46W......................

ad. No. 94, 2008

Schedule 3

 

Schedule 3..........................

am. No. 94, 2008

Schedule 4

 

Schedule 4..........................

ad. No. 7, 2003


Table A

Application, saving or transitional provisions

Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2001 (No. 143, 2001)

4  Application of Amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

Maritime Legislation Amendment Act 2003 (No. 7, 2003)

Schedule 1

5  Application of amending resolution

The amendment of section 3 of the Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 made by this Schedule applies in relation to incidents happening after the commencement of this item that cause pollution damage of the kind described in Article 3 of the 1992 Convention.

 

Financial Framework Legislation Amendment Act 2005 (No. 8, 2005)

4  Saving of matters in Part 2 of Schedule 1

             (1)  If:

                     (a)  a decision or action is taken or another thing is made, given or done; and

                     (b)  the thing is taken, made, given or done under a provision of a Part 2 Act that had effect immediately before the commencement of this Act;

then the thing has the corresponding effect, for the purposes of the Part 2 Act as amended by this Act, as if it had been taken, made, given or done under the Part 2 Act as so amended.

             (2)  In this section:

Part 2 Act means an Act that is amended by an item in Part 2 of Schedule 1.

Schedule 1

496  Saving provision—Finance Minister’s determinations

If a determination under subsection 20(1) of the Financial Management and Accountability Act 1997 is in force immediately before the commencement of this item, the determination continues in force as if it were made under subsection 20(1) of that Act as amended by this Act.