Merchant Shipping (Oil Pollution) (Seychelles) Order, 1975 (Cap. 128)

LAWS OF SEYCHELLES MERCHANT SIDPPING (OIL POLLUTION) (SEYCHELLES) ORDER, 1975 CHAPTER 128 REVISED EDITION 1991 PRINTED FORTHEGOVERNMENT OF SEYCHELLES BY SPACE THE GOVERNMENT PRINTER 199\ ED} MERCHANTSHIPPING(OIL POLLlITION)(SEYCHELLES) ICAP 128 ORDER 1975 CHAPTER 128 The Merchant Shipping.(Oil Pollution) (Seychelles) Order 1975 [3rd February, 1976J 1. This Order may be cited as the Merchant Shipping (Oil Pollution) (Seychelles) Order 1975. 2. The Interpretation Act 1889 shal1 apply, with the necessary adaptations. for the purpose of interpreting this Order and otherwise in relation thereto as it applies for the purpose of interpreting, and in relation to, Acts ofParliament. 3. The provisions oftheMerchant Shipping (Oil Pollution) Act 1971 (except sections 17 and 18 thereof), subject to the exemp tions, modifications and adaptations as set out in Schedule I hereto, shall extend to Seychelles. 4. The provisions ofPart I and sections 22, 23 and 24 of, and Schedule I to the Merchant Shipping Act 1974, subject to the exceptions, modifications and adaptations as set out in Schedule 2 hereto, shall extend to Seychelles. 5. Save as is expressly provided otherwise therein, any refer ence in the Schedules to this Order to any enactment ofthe United Kingdom shall be construed as a reference to that enactment as applying or extended to Seychelles. SCHEDULE I TO THE ORDER ARTICLE 3 TIlE MERCHANT SHIPPING (OIL POLLUTION) Acr 1971 5.1. 118of 1975. Citation. Interpretation. 1889 c. 63. Extension of 1971 c. 59. Extension of 1974 c. 43. Rc,fl;;",ncc to United Kingdom enactments. 1.-(1) Where, as a result ofany occurence taking place while Liability for oil a ship is carrying a cargo ofpersistent oil in bulk, any persistent pollution. oil carried by the ship (whether as part ofthe cargo or otherwise) is discharged or escapes from the ship, the owner ofthe ship shall be liable, except as otherwise provided by this Act, 1991 ED} MERCHANT SHIPPING (OILPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 (a) for any damage caused in the area of Seychelles by contamination resulting from the discharge or es cape; and (b) for the cost of any measures reasonably taken after the discharge or escape for the purpose ofpreventing or reducing anysuch damage in the area ofSeychelles; and (c) for any damage caused in the area of Seychelles by any measures so taken. (2) Where a person incurs a liability under subsection (1) of this section he shall also be liable for any damage or cost for which he would be liable under that subsection ifthe references therein to the area ofSeychelles included the area ofany other Conven tion country. (3) Where persistent oil is discharged or escapes from two or more ships and (a) a liability is incurred under this section by the owner of each of them; but (b) the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or other. would he liable, each ofthe owners shall be liable,jointly with the other or others, forthewhole ofthe damage or cost for which the owners together would be liable under this section. (4) For the purposes of this Act, where more than one dis charge or escape results from the same occurrence or from a series ofoccurrences having the same origin, they shall be treated as one; but any measures taken after the first of them shall be deemed to have been taken after the discharge or escape. (S) If the owner 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 2 1991 ED) MERCHANTSIHPPING(OIL POlLUTION) (SEYCHELLES) [CAP 128 ORDER 1975 the negligence of that person, the owner shall be exonerated wholly or partially from his liability to such person. Z. The owner of a ship from which persistent oil has been discharged or has escaped shall not incur any liability under section 1 oftms Act ifhe provesthat the discharge or escape fa) resulted from an act of war, hostilities, civil war, insurrection or an exceptional, inevitable and irresist ible natura! phenomenon; or (b) was due wholly to anything done or left undone by another person. not being a servant or agent of the owner, with intent to do damage; or (c) was due whollyto the negligence or wrongful act of a government or other authority in exercising its function of maintaining lights or other navigational aidsfor the maintenance ofwhich it was responsible. 3. Where, as a result of any occurrence taking place while a shipis carryinga cargo ofpersistentoil inbulk, anypersistentoil carried bythe shipis discharged or escapesthen, whetheror not the owner incurs a liability under section 1 of this Act, (aj heshall notbe liable otherwisethanunderthat section for any suchdamageor cost as is mentioned therein; and (b) no servant or agent of the owner nor any person in performing salvageoperations with the agreementof the owner shall be liable for any such damage or cost. 4.(1) Where the owner of the ship incurs a liability under section 1 of this A,,( by reason of a discharge or escape which occurred without his actual fault or privity (u) section S03 of the Merchant Shipping Act 1894 (limitation of liability) shall not apply in relation to that liability; but 3 Exceptions from liability under s, 1. Restriction 01 liability fot oil pollution. Limillltion of liability under S. 1. 1894 c. 60. 1991 EDI MERCHANT SlllPPlNO(OiLPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 (b) he may limit that liability in accordance with the provisions ofthis Act, and if he does so his liability (that is to say, the aggregate of his liabilities under sectionI resulting fromthedischarge or escape)shall notexceed2,000goldfrancs foreachtonofthe ship's tonnage nor (where that tonnage would result in a greater amount) 210 million gold francs. (2) For the purposesofthissectionthe tonnageofa shipshall be ascertained as follows : (a) if the ship is a British ship (whether registered in Seychelles or elsewhere) or a shipto which an Order under section84 of theMerchantShipping Act 1894 applies, its tonnageshall be taken to be its registered tonnageincreased, wherea deduction hasbeenmade for engine roomspaceinarriving at that tonnage,by the amount ofthat deduction; (b) if the ship is not such a ship as is mentioned in the preceding paragraph and it is possible to ascertain what would be its registered tonnage if it were registered in Seychelles, that paragraph shall apply (withthe necessary modifications) as ifthe shipwere so regis- tered; (c) if the shipisnot suchasismentioned inparagraph(a) ofthis subsection its tonnage shall be taken to be 40 percentoftheweight(expressed intonsof2,240 lbs.) ofoil which the ship is capable of carrying; (d) if the tonnage of the ship cannot be ascertained in accordance with the preceding paragraphs the Port Officer shall, if so directed bythe court, certify what, on theevidence specified inthedirection, wouldinhis opinion be the tonnage of the ship if ascertained in accordance with those paragraphs, and the tonnage statedinhiscertificate shall betakento bethetonnage ofthe ship. 4 1991 EDj MERCHANT SHIPPING (OlLPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 (3) For the purposes ofthis section a gold franc shall be taken to be a unit ofsixty-five and a half milligrams ofgold ofmillesimaI fineness nine hundred. (4) The Minister may tram time to time by order specify the amounts which for the purposes ofthis section are to be taken as equivalent to 2,000 gold francs and 210 million gold [rani's respectively. (5) Where the amounts specified by an order under tbe preced ing subsection are varied by a subsequent order the variation shall not affect the limit of any liability under section I of this Act if, before the variation comes into force, an amount not less than that limit (as certained in accordance with the order then in force) has been paid into court in proceedings for the limitation of that liability in accordance with this Act. 5.-(1) Where the owner of a ship has or is alleged to have incurred a liability under section I ofthis Act he may apply to the court for the limitation of that liability to an amount determined ill accordance with section 4 of this Act. (2) If on such an application the court finds that the applicant has incurred such a liability and is entitled to limit it, the court shall, after determining the limit of the liability and directing payment into court of the amount of that limit, (a) determine the amounts that would, apart from the limit, be due in respect of the liability to the several persons making claims in the proceedings; and (b) direct the distribution of the amount paid into court (or, as the case may be, so much of it as does not exceed the liability) among those persons in propor tion to their claims, subject to the following provi sions of this section. (3) No claim shall be admitted in proceedings under this section unless it is made within such time as the court may direct or such further time as the court may allow. 5 T.imitstion actions. 1991 EDI MERCHANT SHIPPING (OIL POLLUTION) (SEYCHELLES) ORDER 197; ICAP 128 1958 c. 62. S.1. 196J1l6J2. Restriction on enforcement of claims after establishment of limitation fund. (4) Where any sum has been paid in or towards satisfaction of any claim in respect of the damage or cost to which the liability extends, (a) by the owner or the person referred to in section 12 of this Act as "the insurer"; or (b) by a person who has or is alleged to have incurred a liability, otherwise than under section 1 of this Act, for the damage or cost and who is entitled to limit his liability in connection with the ship by virtue of the Merchant Shipping (LiabilityofShipowners and Oth ers) Act 1958, the person who paid the sum shall, to the extent of that sum, be in the same position with respect to any distribution made in proceedings under this section as the person to whom it was paid would have been. (5) Where the person who incurred the liabilityhas voluntarily made any reasonable sacrifice or taken any other reasonable measures to prevent or reduce damage to which the liability extends or might have extended he shall be in the same position with respect to any distribution made in proceedings under this section as ifhe had a claim in respect ofthe liability equal to the cost of the sacrifice or other measures. (6) The court may, ifit thinks fit, postpone the distribution of such part ofthe amount to be distributed as it deems appropriate having regard to any claims that may later be established hefore a court of any country outside Seychelles. 6. (1) When' the "our! h~s fmmc1 that a person who has incurred a liability under section 1 of this Act is entitled to limit that liability to any amount and he has paid into court a sum not Jess than that amount (a) the court shall order the release of any ship or other property arrested in connection with a claim in reo spect of that liabilityor any security given to prevent or obtain release from such an arrest; and 6 1991 ED] MERCHANT SIDPPING (OIL POLLUTION) (SEYCHELLES) ORDER 197' [CAP 128 (b) no judgment or decree for any such claim shall be enforced, except so far as it is for costs, ifthe sum paid into court, or such part thereofas corresponds to the claim, will be actually available to the claimant or would have been available to him ifthe proper steps in the proceedings under section 5 of this Act has been taken 7. Where, as a result of any discharge or escape of persistent oil from a ship, the Owner of the ship incurs a liability under section 1 of this Act and any other person incurs a liability, or otherwise than under that section, for any such damage or costs as is mentioned in subsection (1) of that section, then, if (a) the owner has been found, in proceedings under section 5 ofthis Act, to be entitled to limit his liability to any amount and has paid into court a sum not less than that amount; and (b) the other person is entitled to limit his liability in connection with the ship by virtue of the Merchant Shipping (Liability of Shipowners and Others) Act 1958; no proceedings shall be taken against the other person in respect of his liability, and if any such proceedings were commenced before the owner paid the sum into court, no further steps shall be taken in the proceedings except in relation to costs. 8. Where the events resulting in the liability of any person under section 1 of this Act also resulted in a corresponding liability under the law ofanother Convention country sections 6 and 7 ofthis Act shall apply as if the references to sections 1 and 5 ofthis Act included references to the corresponding provisions ofthat law and the references to sums paid into court included references to any sums secured under those provisions in respect of the liability. 9. No action to enforce a claim in respect ofa liabilityincurred under section I of this Act shall he entertained hy any court in 7 Concurrent liabilities of owners and others. Establishment of limitation fund outside Seychelles. Extinguishment of claims. 1991 ED} MERCHANT SHlPPING (OIL POLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 Compulsory insurance against liability for pollution. Seychelles unless the action is commenced not later than three years after the claim arose nor later than six years after the occur rence or first of the occurrences resulting in the discharge or escape by reason of which the liability was incurred. 10.( 1) Subject to the provisions ofthis Act relating to Govern ment, ships, subsection (2) ofthis section shall apply to any ship carrying in bulk a cargo ofmore than 2,000 tons ofpersistent oil of a description specified in regulations made by the Minister. (2) The ship shall not enter or leave a port in Seychelles or arrive at or leave a terminal in the territorial sea ofSeychelles nor, ifthe ship is registered in Seychelles, a port in any other country or a terminal in the territorial sea of any other country, unless there is in force a certificate complying with the provisions of subsection (3) ofthis section and showing that there is in force in respect of the ship a contract of insurance or other security satisfying the requirements of Article VII of the Convention (cover for owner's liability). (3) The certificate must be (a) if the ship is registered in Seychelles, a certificate issued by the Minister; (b) ifthe ship is registered in a Convention country other than Seychelles, a certificate issued by or under the authority ofthe government ofthe other Convention country; and (c) if the ship is registered in a country which is not a Convention country, a certificate recognised for the purposes ofthis paragraph by regulations made under this section. (4) The Minister may by regulations provide that certificates in respect ofships registered in any, or any specified, country which is not a Convention country shall, in such circumstances as may be specified in the regulations, be recognised for the purpose of subsection (3)(c) ofthis section ifissued by or under the authority 8 1991 ED) MERCHANT SHIPPING (OlL POLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 ofthe government ofthe country designated in the regulations in that behalf; and the country that may be so designated may be either or both ofthe following, that is to say (a) the country in which the ship is registered; and (b) any country specified in the regulations for the pur poses of this paragraph. (5) Any certificate required by this section to be in force in respect of'a ship shall be carried in the ship and shall, on demand, be produced by the master to any officer of customs. (6) If a ship enters or leaves, or attempts to enter or leave, a port or arrives at or leaves, or attempts to arrive at or leave, a terminal in contravention of subsection (2) of this section, the master or owner shall be liable on conviction to a fine not exceeding 450,000 rupees. (7) If a ship fails to carry, or the master of a ship fails to produce, a certificate as required by subsection (5) ofthis section the master shall be liable on conviction to a fine not exceeding 5,000 rupees. (8) Ifa ship attempts to leave a port in Seychelles in contraven tion of this section the ship may be detained. 11.(1) Subject to subsection (2) ofthis section, ifthe Minister Issue of certifi is satisfied, on an application for such a certificate as is mentioned cate by Minister. in section 10 of this Act in respect of a ship registered in Seychelles, that there will be in force in respect ofthe ship, throu ghout the period for which the certificate is to be issued, a contract of insurance or other security satisfying the require ments of Article VII of the Convention, the Minister shall issue such a certificate to the owner. (2) Ifthe Minister is ofopinion that there is a doubt whether the person providing the insurance or other security will be able to meet his obligations thereunder, or whether the insurance or other security will cover the owner's liability under section 1 of this Act in all circumstances, he may refuse the certificate. 9 1991 ED] MERCHANT SHIPPING (OILPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 Rights Df third parties against insurers. (3) The Minister may make regulations (a) prescribing the fee to be paid on an application for a certificate to be issued by him under this section; and (b) providing for the cancellation and delivery up ofsuch a certificate in such circumstances as may be pre scribed by the regulations. (4) If a person required by regulations under subsections (3)(b) ofthis section to deliver up a certificate fails to do so he shall be liable on conviction to a fine not exceeding 2,5000 rupees (5) The Minister shall make available for public inspection a copy ofany certificate issued hy him under this section in respect of a ship registered in Seychelles. 12.(1) Where it is alleged that the owner ofa ship has incurred a liability under section I of this Act as a result ofany discharge or escape of oil occurring while there was in force a contract of insurance or other security to which such a certificate as is mentioned in section 10 of this Act related, proceedings to enforce a claim in respect of the liability may be brought against the person who provided the insurance or other security (in the following provisions ofthis section referred to as "the insurer"). (2) In any proceedings brought against the insurer by virtue of this section it shall be a defence (in addition to any defence affecting the owner's liability) to prove that the discharge 01 escape was due to the wilful misconduct of the owner himself (3) The insurer may limit his liability in respect ofclaims made against him byvirtue ofthis section in like manner and to the same extent as the owner may limit his liability but the insurer may do so whether or not the discharge or escape occurred without the owner's actual fault or privity. (4) Where the owner and the insurer each apply to the court for the limitation ofhis liabilityany sum paid into court in pursuance 10 1991 ED] MERCHANT SHIPPING (OIL POLLUTION) (SEYCHELLES) ORDER 1975 ICAP 128 ofeither application shall be treated as paidalso in pursuance of the other. 13.(1) Paragraph (d) of section 1(1) of the Administration of Justice Act 1956 as applied in Seychelles by the Admiralty Jurisdiction (Seychelles) OrderinCouncil 1961 (Admiraltyjuris dictionin claims for damagedoneby ships) shall be construedas extending to anyclaim inrespectof a liability incurred underthis Act. (2) Where any persistent oil is discharged or escapes from a shipbut does not result in any damage causedby contamination inthe areaof Seychelles andno measures are reasonably taken to preventor reducesuchdamageinthat area,nocourt inSeychelles shall entertain an action (whether in rem or in personam) to enforce a claim arising from (aJ anydamagecausedinthe areaof anotherConvention country by contamination resulting from the dis charge or escape; Jurisdiction of Sc;ychcllc5 courts and registration of foreign judgements. S.1. 196112032. Cap. 52 Sub. Leg. (b) any cost incurred in taking measures to prevent or reduce such damage in the area ofanother Conven tion country; or (c) any damagecaused by any measures so taken. (3) Part I oftheForeignJudgments (Reciprocal Enforcement) Act shallapply, whetheror not it would so applyapart from this Cap. 85. section,to anyjudgmentgivenbya court ina Convention country to enforce a claim in respect of a liability incurred under any provision corresponding to section 1 of this Act; and in its application to suchajudgementthatPart shall haveeffectwiththe omission ofsubsections (2) and (3) of section 6 of that Act. 14.(1) Nothing inthe preceding provisions ofthis Act applies Government in relationto anywarshipor any ship for the time beingused by ships. the government of anyState forother thancommercial purposes. (2) In relation to a shipownedbya Stateandfor the timebeing 11 1991 ED) MERCHANT SfllPPlNG(OILPOLLUTION) (SEYCHELLES) ORDER 197~~ [CAP 128 Liability for cost of preventive measures where SJ. does not apply. 1894 c. 60. used for commercial purposes it shall be a sufficient compliance with subsection (2) ofsection 10 ofthis Act ifthere is in force a certificate issued by the government of that State and showing that the ship is owned by that State and that any liability for pollution damage as defined in Article I ofthe Convention willbe met up to the limit prescribed by Article V thereof (3) Every Convention State shall, for the purposes of any proceedings brought ill a court in Seychelles to enforce a claim in respect of a liability incurred under section I of this Act, be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which such proceedings are to be commenced and carried on; but nothing in this subsection shall authorise the issue of execution against the property of any State. 15.(1) Where. (a) after an escape or discharge of persistent oil from a ship, measures are reasonably taken for the purpose of preventing or reducing damage in the area of Seychelles which may be caused by contamination resulting from the discharge or escape; and (b) any person incurs, or might but for the measures have incurred, a liability,otherwise than under section 1 of this Act, for any such damage; then, notwithstanding that subsection (1)(b) ofthat section does not apply, he shall be liable for the cost ofthe measures, whether or not thc person taking them docs so for the protection of his interests or in the performance of a duty. (2) For the purposes ofsection 503 ofthe Merchant Shipping Act 1894 (limitation ofliability) any liability incurred under this section shall be deemed to be a liability to damages in respect of such loss, damage or infringement as is mentioned in subsection (1)(d) of that section. 12 1991 ED] MERCHANT SHIPPING (OlL POLLUTION) (SEYCHELLES) ORDER IQ7, ICAP 128 16. Nothing in this Act shall prejudice any claim, or the enforcement ofany claim, a person incurring any liability under this Act may have against another person in respect of that liability. 19.(1) In this Act "the Convention" means the International Convention on CivilLiability for Oil Pollution Damage signed inBrussels in 1969; "Convention country" means a country in respect ofwhich the Convention is in force; and "Convention State" means a State which is a party to the Convention. (2) If Her Majesty by Order in Council made under this subsection as it applies in the United Kingdom declares that any State specified in the Order is a party to the Convention in respect of any country so specified the Order shall, while in force, be conclusive evidence that that State is a party to the Convention in respect of that country. 20.( I) In this Act "damage" includes loss; "owner", in relation to a registered ship, means the person registered as its owner, except that in relation to a ship owned by a State which is operated by a person registered as the ship's operator, it means the person registered as its operator; "the court" means the Supreme Court of Seychelles; "the Minister" means the Minister for the time being in charge of Port and Marine Services. (2) In relation to any damage or cost resulting from the discharge or escape of any oil carried in a ship references in this 13 Saving for recourse actions. Meaning of «the Convention", "Convention country" and "Convention State" Interpretation of other expressions. 1991 ED) MERCHANT SfllPPING (OILPOLLUTION) (SEYCHELLES) ORDER 1975 (CAP 128 Construction, and commence ment Interpretation of Part L Act to the owner of the ship are references to the owner at the time of the occurrence or first ofthe occurrences resulting in the discharge or escape. (3) References in this Act to the area ofany country include the territorial sea of that country. 21.(2) This Act shall be construed as one with the Merchant Shippings Acts 1894 to 1967. (3) This Act shall come into force on such day as the Minister may by order appoint, and different days may be so appointed for different provisions of this Act. SCHEDOLE 2 TO THE ORDER ARTICLE 4 THE MERCHANT SlllPPING ACT 1974 PARTI THE INTERNATIONAL OIL POLLUTION COMPENSATION FUND 1.(1) In this Part of this Act (a) the "Liability Convention" means the International Convention on Civil Liability for Oil Pollution Dam age opened for signature in Brussels on 29th Novem ber 1969; . (b) the "Fund Convention" means the International Con vention 011 the Establishment of'an Iutematiunal Fuml for Compensation for Oil Pollution Damage opened for signature in Brussels on 18th December, 1971; (c) "the Fund" means the International Fund established by the Fund Convention; and (d) "Fund Convention country" means a country in re spect of which the Fund Convention is in force. 14 1991 ED] MERCHANT SHIPPING (OlL POLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 (2) If Her Majesty by Order in Council made under this subsection as it applies in the United Kingdom declares that any State specified in the Order is a party to the Fund Convention in respect ofany country so specified the Order shall, while in force, be conclusive evidence that the State is a party to the Convention in respect of that country. (3) In this Part of this Act, unless the context otherwise requires the "Act ofl971" means the Merchant Shipping (Oil Pollu- 1971 c. 59. tion) Act 1971, "damage" includes loss, "discharge or escape", in relation to pollution damage, means the discharge or escape of oil carried by the ship, "guarantor" means any person providing insurance or other financial security to cover the owner's liability of the kind described in section 10 of the Act of 1971, "oil", except in sections 2 and 3, means persistent hydrocar bon mineral oil, "owner" means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship, except that in relation, to a ship owned by a State which is operated by a person registered as the ship's operator, it means the person regis tered as its operator, "pollution damage" means damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever the escape or discharge may occur, and includes the cost of preventing measures and further damage caused by preventive mea sures, 15 1991 ED) MERCHANT SHIPPING (OIL POLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 Part I. Contributions by importers of oil and others. "preventivemeasures" means any reasonablemeasures taken by any person after the occurrence to prevent or minimise pollution damage, "ship" means any sea-going vessel and any seaborne craft of any type whatsoever carrying oil in bulk as cargo. (4) For the purposes ofthis Part of this Act a ship's tonnage shallbethe net tonnage ofthe ship with the addition ofthe amount deducted from the gross tonnage on account of engine room space for the purpose of ascertaining the net tonnage. If the ship cannot be measured in accordance with the normal rules, its tonnage shall be deemed to be 40 per cent, ofthe weight in tons (of 2240 lbs.) ofoil which the ship is capable ofcarrying (5) For the purposes ofthis Part ofthis Act, where more than one discharge or escapes results from the same occurrence or from a series ofoccurrences having the same origin, they shall be treated as one. (6) In this Part ofthis Act a franc shall be taken to be a unit of 65Y2 milligrammes ofgold of millesimaI fineness 900. (7) The Minister may from time to time by order specify the amounts which for the purposes of this Part ofthis Act are to be taken as equivalent to any specified number offrancs. Contributions to Fund 2.(1) Contributions shall be payable to the Fund in respect of oil carried by sea to ports or terminal installations in Seychelles. (2) Subsection (I) above applies whether or not the oil is being imported, and applies even if contributions are payable in respect of carriage of the same oil on a previous voyage. (3) Contributions shall also be payable to the Fund in respect of oil when first received in any installatiun in Seychelles after having been carried by sea and discharged in a port or terminal installation in a country which is not a Fund Convention country. 16 1991 ED] MERCHANT SHIPPING (OlLPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 (4) The person liable to pay contributions is (a) in the case ofoil which is being imported in Seychel les, the importer, and (b) otherwise, the person by whom the oil is received. (5) A person shall not be liableto make contributions in respect of the oil imported or received by him in any year if the oil so imported or received in the year does not exceed 150,000 tonnes. (6) For the purpose of subsection (5) above (a) all the members of a group of companies shall be treated as a single person; and (b) any two or more companies which have been amal gamated into a single company shall be treated as the same person as that single company. (7) The contributions payable by a person for any year shall (a) be uf sud. amount as may be determined by the Assembly ofthe Fund under Articles 11 and 12 ofthe Fund Convention and notified by him by the Fund; (b) be payable in such installments, becoming due at such times, as may be so notified to him, and ifany amount due from him remains unpaid after the date on which it became due, it shall from then on bear interest, at a rate determined from time to time by the said Assembly, until it is paid. (8) The Minister noay by regulations impuse on persons who are or may be liable to pay contributions under this section obligations to give security for payment to the Minister, or to the Fund. Regulations under this subsection (a) may contain such supplemental or incidental provi sions as appear to the Minister expeclient, and 17 Part I. 1991 ED] MERCHANT SillPPING (OIL POLLUTION) (SEYCHELLES) ORDER Ins [CAP 128 Cap. 40. (b) may impose penalties for contravention ofthe regula lions punishable on conviction bya finenot exceeding 5,500 rupees, or such lower limit as may be specified in the regulations. (9) In this and the next following section, unless the context otherwise requires "company" means a body corporate under the Law of Seychelles. or ofany other country; "group" in relation to companies, means two or more companies or bodies corporate one ofwhich is the holding company ofthe other or others; "holding company" has the meaning assigned thereto in section 2 of the Companies Act; "importer" means the person by whom or on whose behalf the oil in question is entered for customs purposes on importation, and "import" shall be construed accordingly; "oil" means crude oil and fuel oil, and (a) "crude oil" means any liquid hydrocarbon mixture oc curring naturallyin the earth whether or not treated to render it suitablefor transportation, and includes (i) crude oils from which distillate fractions have been removed, and (ii) cnllle oils to which distillate fractions have been added; (b) "fuel oil" means heavy distillates or residues from crude oil or blends ofsuch materials intended for use as a fuel for the production of heat or power of a quality equivalent to the "American Society CUI Test ing and Materials' Specification for Number Four Fuel Oil (Designation D 396-69)", or heavier; "terminal installation" means any site for the storage of oil in bulk which is capable of receiving oil from waterborne 18 1991 EDI MERCHANT SHIPPING (OlL POLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 transportation, including any facility situated offshore and linked to any such site. 3.(1) For the purpose of transmitting to the Fund the names and addresses ofthe persons who under the last preceding section are liable to make contributions to the Fund for any year, and the quantity ofoil in respect ofwhich they are so liable. the Minister may by notice require any person engaged in producing, treating, distributing or transporting oil to furnish such information as may be specified in the notice. (2) A notice under this section may require a company to give such information as may be required to ascertain whether its liability is affected by subsection (6) ofthe last preceding section. (3) A notice under this section may specify the way in which, and the time within which, it is to be complied with. (4) In proceedings by the Fund against any person to recover any amount due under the last preceding section, particulars contained in any list transmitted by the Minister-to the Fund shall. so far as those particulars are based on information obtained under this section, be admissible as evidence ofthe facts stated in the list; and so far as particulars which are so admissible are based on information given by the person against whom the proceedings are brought. those particulars shall be presumed to be accurate until the contrary is proved. Power to obtain information. (5) If a person discloses any information which has been Part I. furnished to or obtained by him under this section, or in connec tion with the execution of this section, he shall, unless the disclosure is made (a) with the consent of the person from whom the infor mation was obtained; or (b) in connection with the execution of this section; or (c) for the purposes ofany legal proceedings arising out of this section or ofany report of such proceedings, 19 199IEDJ MERCHANT SHIPPING (OIL POLLUTION) (SEYCHELLES) ORDER Ins [CAP 128 Liability uf the Fund. be liable on conviction to a fine not exceeding 5,000 rupees. (6) A person who (a) refuses or wilfully neglects to comply with a notice under this section; or (b) in furnishing any information in compliance with a notice under this section makes any statement whidl he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, shall be liable on conviction to a fine not exceeding 5.000 rupees or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment. Compensation for persons suffering pollution damage 4.(1) The Fund shallbe liablefor pollution damage in Seychelles ifthe person suffering the damage has been unable to obtain full compensation under section 1 of the Act of 1971 (which gives effect to the Liability Convention) (a) because the discharge or escape causing the damage (i) resulted from an exceptional, inevitable and irresistible phenomenon, or (ii) was due wholly to anything done or left undone by another person (not being a servant or agent of the owner) with intent to do damage, or (iii) was due wholly to the negligence or wrongful act ofa government or other authority in exer cising its function ofmaintaining lights or other navigational aids for the maintenance ofwhich it was responsible, (and because liability is accordingly wholly displaced by section 2 ofthe Act of 1971), or (b) because the owner or guarantor liable for the damage cannot meet his obligations in full; or 20 1991 ED] MERCHANT SHIPPING (OIL POLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 (c) because the damage exceeds the liability under sec tion I of the Act of 1971 as limited (i) by section 4 of the Act of 1971, or (ii) (where the said section 4 isdisplayed by section 9 of this Act) by section 503 of the Merchant Shipping Act 1894. (2) Subsection (1) above shall apply with the substitution for the word "Seychelles" ofthe words "a Fund Convention country" where the incident has caused pollution damage both in Seychelles and in another Fund Convention country, and proceedings under the Liability Convention for compensation for the pollution damage have been brought in a country which is not a Fund Convention country or in Seychelles. (3) Where the incident has caused pollution damage both in Seychelles and in another country in respect ofwhich the Liability Convention is in force, references in this section to the provisions of the Act of 1971 shall include references to the corresponding Part I. provisions ofthe law ofany country giving effect to the Liability Convention. (5) For the purposes ofthis section an owner or guarantor is to be treated as incapable of meeting his obligations if the obliga tions have not been met after all reasonable steps to pursue the legal remedies available have been taken. (6) Expenses reasonably incurred, and sacrifices reasonably made, by the owner voluntarily to prevent or minimise pollution damage shall be treated as pollution damage for the purposes of this section, and accordingly he shall be in the same position with respect to claims against the Fund under this section as ifhe had a claim in respect ofliability under section 1 of the Act of 1971. (7) The Fund shall incur no obligation under this section if (a) it proves that the pollution damage (i) resulted from an act ofwar, hostilities, civilwar or insurrection, or 21 1991 ED) MERCHANT SHIPPING (On. POLLUTION) (SEYCHELLES) ORDER 1975 ICAP IZ8 (ii) 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 occurrence. only on Government non-com mercial service, or (b) the claimant cannot prove that the damage resulted from an occurrence involving a ship identified by him, or involving two or more ships one of which is identified by him, (8) If the Funds proves that the pollution damage resulted wholly or partly (a) from an act of omission done with intent to cause damage by the person who suffered the damage, or (bj from the negligence of that person, the Fund may be exonerated wholly or partly from its obligation to pay compensation to that person: Provided that this subsection shall not apply to a claim in respect of expenses or sacrifices made voluntarily to prevent or minimise pollution damage, (9) Where the liability under section I of the Act of 1971 is limited to any extent by subsection (5) ofthat section (contribu tory negligence), the Fund shall be exonerated to the same extent, (10) The Fund's liability under this section shall be subject to the limits imposed by paragraphs 4, 5 and 6 of Article 4 of the Fund Convention which impose an overall liabilityon the liabili ties ofthe owner and ofthe Fund, and the text ofwhich is set out in Schedule I to this Act. (II) Evidence of any instrument issued by any organ of the Fund or ofany document in the custody ofthe Fund, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of the Fund: and any document purporting to be such 22 1991 ED] MERCHANT SHIPPING (OlLPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 a copy shall be received in evidence without proofofthe official position or handwriting of the person signing the certificate (12) For the purpose ofgiving effect to the said provisions of Article 4 ofthe Fund Convention a court givingjudgment against the Fund in proceedings under this section shall notify the Fund, and (a) no steps shall be taken to enforce the judgment unless and until the court gives leave to enforce it, (b) that leave shall not be given unless and until the Fund notifies the court either that the amount of the claim is not to be reduced under the provisions of Article 4 of the Fund Convention, or that it is to be reduced to a specified amount, and (c) in the latter case the judgment shall be enforceable only for the reduced amount. Indemnification ofshipowners 5.(1) Where a liability is incurred under section I of the Act uf 1971 in respect ofa ship registered in aFund Convention country the Fund shall indernnifv the owner and his guarantor for that portion of the aggregate amount of the liability which (a) is in excess of an amount equivalent to 1,500 francs tor each ton ofthe ship's tonnage or ofan amount of 125 million francs, whichever is the less; (b) is not in excess of an amount equivalent to 2,000 francs for each ton of the said tonnage or an amount of 11Qmillion francs, whichever is the less. (2) Where proceedings under the Liability Convention for compensation for pollution damage have been brought in a country which is not a Fund Convention country (but is a country in respect ofwhich the Liability Convention is in force), and the incident has caused pollution damage in Seychelles (as well as in that other country) subsection (1) above shall apply with the omission of the words "under section 1 of the Act of 1971". 23 PART I Indemnification where damage is caused by ship registered in Fund Convention country. 1991 ED] MERCHANT SillPPING (OIL POLLUTION) (SEYCHELLES) ORUEl{ 1975 [CAP 128 (3) The Fund shall not incur an obligation under this section where the pollution damage resulted from the wilful misconduct of the owner. (4) In proceedings to enforce the Fund's obligation under this section the court may exonerate the Fund wholly or partly if it is proved that, as a result of the actual fault or privity of the owner (a) the ship did not comply with such requirements as the Minister may by order prescribe for the purposes of this section; and (b) the occurrence or damage was caused wholly or partly by that non-compliance (5) The requirements referred to in subsection (4) above are such requirements as appear to the Minister appropriate to implement the provisions of (a) article 5(3) of the Fund Convention (marine safety conventions); and (b) article 5(4) of the Fund Convention (which enables the Assembly of the Fund to substitute new conven tions). (6) An order made under subsection (4) above (a) may be varied or revoked by a subsequent order so made; or (b) may contain such transitional or other supplemental provisions as appear to the Minister to be expedient. (7) Expenses reasonably incurred, and sacrifies reasonably made, by the owner voluntarily to prevent or minimise the pollution damage shall be treated as included in the owner's liability for the purposes of this section. 24 1991 ED] MERCHANT SHIPPING (OlLPOLLlITlON) (SEYCHELLES) ORDER 1975 Supplemental ICAP 128 6.(1) Paragraph (d) of section 1(1) of the Administration of Justice Act 1956 as applied in Seychelles by the Admiralty Jurisdiction (Seychelles) Order in Council 1961 (Admiralty juris diction in claims for damage done by ships) shall be construed as extending to any claim in respect of a liability falling on the fund under this Part of this Act. Jurisdiction and effect of judgements. S1. 1961/2032. Cap. 52 Sub. Leg. PART t. (2) Where in accordance with rules of court made for the purposes of this subsection the Fund has been given notice of proceedings brought against an owner or guarantor in respect of liability under section I ofthe Act of 1971, any judgment given in the proceedings shall, after it has become final and enforceable, become binding upon the Fund in the sense that the facts and evidence in the judgment may not be disputed by the Fund even if the Fund has not intervened in the proceedings. (3) Where a person incurs a liability under the law of a Fund Convention country corresponding to the Act of 1971 for dam age which is partly in the area ofSeychelles, subsection (2) above shall, for the purpose of proceedings under this part of this Act, apply with any necessary modifications to ajudgment inproceed ings under that law of the said country. (4) Subject to subsection (5) below, Part I of the Foreign Judgments (Reciprocal Enforcement) Act shall apply, whether or Cap. 85. not it would so apply apart from this subsection, to anyjudgment given by a court in a Fund Convention country to enforce a claim in respect ofliability incurred under any provision corresponding to section 4 or S of this Act; and in its application to such a judgment the said Part I shall have effect with the omission of subsections (2) and (3) of section 6 of that Act. (5) No steps shall be taken to enforce such a judgment unless and until the court in which it is registered under Part 1ofthe Act gives leave to enforce it: and (aj that leave shall not be given unless and until the Fund 25 1991 EDj MERCHANT SHIPPING (OILPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 Extinguishment of claims. notifies the court either that the amount of the claim is not to be reduced under paragraph 4 ofArticle 4 of the Fund Convention (as set out in Schedule 1 to this Aet) or that it is to be reduced to a specified amount; and (b) in the latter case, the judgment shall be enforceable only for the reduced amount. 7.(1) No action to enforce a claim against the Fund under this Part of this Act shall be entertained by a court in Seychelles unless (a) the action is commenced, or (b) a third-party notice of an action to enforce a claim against the owner or his guarantor in respect of the same damage is given to the Fund, not later than three years after the claim against the Fund arose. In this subsection "third-party notice" means a notice of the kind described in subsections (2) and (3) of the last preceeding section. (2) No action to enforce a claim against the Fund under this Part ofthis Act shallbe entertained by a court in Seychelles unless the action is commenced not later than six years later after the occurrence, or first ofthe occurrences, resulting in the discharge or escape by reason of which the claim against the Fund arose. (3) Notwithstanding the preceding provisions of this section, a person's right to bring an action under section 5 ofthis Act shall not be extinguished before six months from the date when that person first acquired knowledge of the bringing of an action against him under the Act of 1971 (that is to sayan action to enforce a liabilityagainst which he seeks indemnity), or under the corresponding provisions of the law of any country outside Seychelles giving effect to the Liability Convention. 26 1991 ED] MERCHANT SHIPPING (OILPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 8.(1) In respect ofany sum paid under section 4(1)(b) of this Act (default by owner or guarantor on liability for pollution damage) the Fund shall acquire by subrogation the rights of the recipient against the owner or guarantor. (2) The right ofthe Fund under subsection (I) above is subject to any obligation of the Fund under section 5 of this Act to indemnify the owner or guarantor for any part of the liability on which he has defaulted. (3) In respect of any sum paid (a) under paragraph (a) or paragraph (c) ofsection 4(1); or (b) under section 5, the Fund shall acquire by subrogation any rights of recourse or subrogation which the owner or guarantor or any other person has in respect of his liability for the damage in question. (4) In respect ofany sum paid bya publicauthority in Seychelles as compensation for pollution damage, that authority shall ac quire by subrogation any rights which the recipient has against the Fund under this Part of this Act. PART 1 Subrogation ~Jll.1 rights of recourse. 9. In the Aet of 1971 after section 8 there shall be inserted the following section ''(,;ases excluded from sections 4 to 8. 8A.(I) Sections 4 to 8 ofthis Act shall not apply to a ship which at the time of the discharge or escape was registered in a country (a) which was not a Convention country, and (b) which was a country in respect ofwhich the 1957 Convention was in force. (2) In this section "the 1957 Convention" means the International Convention relating to the Limitation of the Liability of Owners ofSea 27 Modification of limitation of liability under Act of 1971. 1991 ED] MERCHANT SHlPPING (OILPOLLUTION) (SEYCHELLES) ORDER 1975 ICAP 128 PARTY Offences by bodies corporate. PARTY Construction and interpretation. going Ships signed in Brussels on 10th October 1957. (3) If Her Majesty by Order in Council made under this subsection as It applies In the United Kingdom declares that any country (a) is not a Convention country within the mean ing of this Act, and (b) is a country in respect of which the 1957 Convention is in force, or that it was such a country at a time specified in the Order, the Order shall, while in force, be conclusive evidence of the facts stated in the Onlel." PARTY Supplemental 22. Where an offence under this Act, or under regulation. made under any of its provisions, which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. In this section "director", in relation to a body corporate established by or under anyenactment for the purpose ofcarrying on under public ownership any industry or part of an industry or undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate. 23.(1) This Act shall be construed as one with the Merchant Shipping Acts 1894 to 1971, and without prejudice to the generality of this provision, references in those Acts to the 28 1991 ED] MERCHANT SHIPPING (OILPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 Merchant Shipping Acts shall be construed as including refer ences to this Act. (2) References in this Act to the area ofany country include the territorial sea ofthat country, and references to pollution damage in Seychelles shall be construed accordingly. (4) Except so far as the context otherwise requires, any refer ence in this Act to an enactment shall be construed as a reference to that enactment as amended or extended by or under any other enactment. 24.(2) This Act shall come into force on such day as the Commencement. Minister may appoint and different days may be appointed for different provisions, or for different purposes. (3) An order under subsection (2) above may make such transitional provision as appears to the Minister to be necessary or expedient in connection with the provisions thereby brought into force, including such adaptations ofthose provisions, or any provisions of this Act then in force, as appear to him to be necessary or expedient in consequence ofthe partial operation of this Act (whether before or after the day appointed). SCHEDULE I TO THE ACT OVERALL LIMIT ON LIABILITY OF FUND Article 4 - paragraphs 4, 5 and 6 4.(a) Except as otherwise provided in sub-paragraph (b) ofthis paragraph, the aggregate amount ofcompensation payable by the Fund under this Article shall in respect of anyone 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 ofwhich the Fund is under an obligation to indemnify the owner pursuant to Article 5, 29 Sections 4{lU), 6(5) 1991 ED] MERCHANT SHiPPING (OlLPOLLUTION) (SEYCHELLES) ORDER 1975 [CAP 128 paragraph I, 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 ofan 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 compensa- tion 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 may, having regard to the experience ofincidents 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, subparagraph (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. EXPLANATORY NOTE (This Note is not part ofthe Order.) This Order extends to Seychelles the provisions of the Mer chant Shipping (Oil Pollution) Act 1971, with the necessary adaptations, enabling effect to be given to the International Convention on Civil Liability for Oil Pollution Damage opened for signature inBrussels on 29th November 1969 (Cmnd. 4403). The Order also extends the provisions ofPart I and V of, and of Schedule 1 to the Merchant Shipping Act 1974, with the neces sary adaptations, enabling effect to be given to the International Convention on the Establishment of an International Fund for 30 1991 ED] MERCHANTSHIPPING(OIL POLLUI10N) (SEYCHELLES) [CAP 128 ORDER 1975 Compensation for Oil Pollution Damage opened for signature in Brussels on 18th December 1971 (Cmnd, 5061). The 1969 Convention provides uniform rules and procedures for determin ing questions of liability and for awarding compensation when damage is caused by pollution resulting from the escape or discharge of oil from ships. The 1971 Convention sets up an international fund to provide a supplementary system for com pensation and indemnification for such damage. 31