Merchant Shipping Amendment Act, 2004 (No. 16 of 2004)

MERCHANT SHIPPING AMENDMENT ACT 2004 1 BERMUDA 2004 : 16 MERCHANT SHIPPING AMENDMENT ACT 2004 [Date of Assent: 7 June 2004] [Operative Date: 18 June 2004] WHEREAS it is expedient to amend the Merchant Shipping Act 2002 to give effect in Bermuda to Chapter XI-2 of the Annex to the International Convention for the Safety of Life at Sea 1974; to the Protocol of 1992 to the Convention on Civil Liability for Oil Pollution Damage 1969; to the Protocol of 1992 to the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971; to the Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996; and to the Protocol of 1996 to the Convention on Limitation of Liability for Maritime Claims 1976: Be it enacted by The Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Assembly of Bermuda, and by the authority of the same, as follows: Citation and commencement 1. (1) This Act may be cited as the Merchant Shipping Amendment Act 2004. (2) This Act shall come into operation on such day as the Minister may appoint by notice published in the Gazette and different days may be appointed for different provisions. MERCHANT SHIPPING AMENDMENT ACT 2004 2 Interpretation 2. In this Act, "the principal Act" means the Merchant Shipping Act 2002. Section 99 of principal Act amended 3. Section 99 of the principal Act is amended  (a) by repealing subsections (1) to (4); (b) in subsection (5), by deleting "by the said rules for indicating that a message is about to be sent under this section" and substituting "under safety regulations relating to dangers to navigation, which indicates that a message is about to be sent under those regulations,"; (c) in subsection (7) — (i) by repealing the definition of "tropical storms"; and (ii) by repealing the tailpiece. New Part VIA inserted 4. The principal Act is amended by inserting the following Part after Part VI — "PART VIA SPECIAL MEASURES TO ENHANCE MARITIME SECURITY Powers to give effect to Chapter XI-2 of the Annex to the SOLAS Convention 121A (1) The Minister may make such regulations as he considers appropriate for the purpose of giving effect to Chapter XI-2 of the Annex to the SOLAS Convention for the purpose of enhancing maritime security in (a) Bermuda ships and persons on board them; and (b) other ships and persons on board them while they are within Bermuda waters. (2) Without prejudice to the generality of subsection (1), regulations made under this section may make provision with respect to the following matters (a) compliance with the provisions of the ISPS Code; (b) compliance with the requirements for the security level; MERCHANT SHIPPING AMENDMENT ACT 2004 3 (c) the measures to be taken in response to security levels; (d) the measures to be taken for non-compliance or inability to comply with the requirements of the ISPS Code or security levels; (e) the furnishing of information with respect to persons with responsibility for matters related to the operations of a ship; (f) the provision of ship security alert systems; (g) the duties and powers of a master in relation to the maintenance of the safety and security of a ship; (h) the powers of authorised officers in relation to control and compliance measures in respect of ships in port and ships intending to enter port; (i) the furnishing of information in relation to security matters by ships in port and ships intending to enter port; (j) the keeping of records of such information. (3) Regulations made under this section may — (a) make different provisions for different circumstances; (b) include provision with respect to the application of the regulations to the Crown; (c) include provision for detaining any ship in respect of which a contravention of a provision made by or under the regulations is suspected to have occurred, and in relation to such a ship, for applying section 242 with such modifications, if any, as are prescribed by the regulations; (d) include provision for the payment of compensation for ships that have been unduly detained or delayed in the exercise of powers under the regulations; (e) provide for the delegation of functions exercisable by virtue of such regulations; MERCHANT SHIPPING AMENDMENT ACT 2004 4 (f) include such incidental, supplemental and transitional provisions as appear to the Minister to be expedient for the purposes of the regulations; (g) provide that a contravention of the regulations shall be an offence punishable on summary conviction by a fine of $10,000 and on conviction on indictment by a fine of $50,000 or imprisonment for a term of two years or both; (h) that, in such cases as are prescribed by the regulations, such persons as are so prescribed shall each be guilty of an offence created by virtue of paragraph (g). (4) Regulations made under this section are subject to negative resolution procedure. (5) In this section — “Bermuda ship” has the meaning given in section 93(4); “SOLAS Convention” means the International Convention for the Safety of Life at Sea, 1974 as amended; “ISPS Code” means the International Ship and Port Facility Security Code referred to in Chapter XI-2 of the SOLAS Convention; “security level” has the meaning given in Chapter XI-2 of the Annex to the SOLAS Convention." Section 155 of principal Act Amended 5. (1) Section 155(2) of the principal Act is amended — (a) in paragraph (a), by deleting "three million" and substituting "4.51 million"; (b) in paragraph (b) — (i) by deleting "three million" and substituting "4.51 million"; (ii) by deleting "420" and substituting "631"; (iii) by deleting "59.7 million" and substituting "89.77 million". MERCHANT SHIPPING AMENDMENT ACT 2004 5 Part VII of principal Act amended 6. Part VII of the principal Act is amended by inserting the following Chapter after Chapter V — "CHAPTER VI CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES Introductory 178A (1) In this Chapter, unless the context otherwise requires, "the Convention" means the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996. (2) The text of the Convention, excluding the annexes, is set out in Schedule 4A. (3) In interpreting the definition of "hazardous and noxious substances" in Article 1, paragraph 5 of the Convention, any reference in that paragraph to a particular convention or code as amended shall be taken to be a reference to that convention or code as amended from time to time (whether before or after the commencement of this Chapter). Power to give effect to Convention 178B (1) The Minister may by order make such provision as he considers appropriate for the purpose of giving effect to — (a) the Convention on or after its signature or ratification by the United Kingdom on behalf of Bermuda; or (b) any revision of the Convention which appears to the Minister to have been agreed to by the United Kingdom on behalf of Bermuda. (2) The power conferred by subsection (1) to make provision for the purpose of giving effect to the Convention or an agreement revising the Convention includes power to provide for the provision to come into force even though the Convention or the agreement has not come into force. (3) Without prejudice to the generality of subsection (1), an order under that subsection may include provision — (a) requiring contributions to be paid in accordance with the Convention to the International MERCHANT SHIPPING AMENDMENT ACT 2004 6 Hazardous and Noxious Substances Fund established under the Convention; (b) for applying for the purpose mentioned in subsection (1) any enactment or instrument relating to the pollution of the sea or other waters (including provisions creating offences) with such modifications, if any, as may be prescribed by the order; (c) making such modifications of any enactment or instrument (including, where the order is made under paragraph (b) of that subsection, modifications of Schedule 4A and section 178C) as appear to the Minister to be appropriate for the purpose specified in that subsection; (d) with respect to the application of the order to the Crown; (e) for detaining any ship in respect of which a contravention of a provision made by or under the order is suspected to have occurred and, in relation to such a ship, for applying section 242 with such modifications, if any, as are prescribed by the order; (f) for a certificate issued by or on behalf of the Minister stating that at a particular time a particular substance was, or was not, a hazardous or noxious substance for the purposes of the Convention to be conclusive evidence of that matter. (4) An order under subsection (1) may — (a) make different provision for different circumstances; (b) make provision for references in the order to any specified document to operate as references to that document as revised or re-issued from time to time; (c) provide for the delegation of functions exercisable by virtue of the order; (d) include such incidental, supplemental and transitional provisions as appear to the Minister to be expedient for the purposes of the order. MERCHANT SHIPPING AMENDMENT ACT 2004 7 (5) The Minister may make regulations for the purposes of this section. (6) An order and regulations made under this section are subject to negative resolution procedure. Power of Minister to amend Schedule 4A 178C (1) The Minister may by order make such amendments of Schedule 4A as appears to him to be appropriate for the purpose of giving effect to any amendment of a relevant limit which is adopted in accordance with article 48 of the Convention. (2) In subsection (1), "a relevant limit" means any of the limits for the time being specified in article 9, paragraph 1 and article 14, paragraph 5, of the Convention.". Schedule 4 of principal Act amended 7. Schedule 4 (text of paragraphs 4 and 5 of Article 4 of the Fund Convention) of the principal Act is amended, in the text of paragraph 4 — (a) in subparagraphs (a) and (b), by deleting "135 million" and substituting "203 million"; (b) in subparagraph (c), by deleting "200 million" and substituting "300.74 million". Schedule 4A added to principal Act 8. The principal Act is amended by inserting the following schedule after Schedule 4  "SCHEDULE 4A (section 178A(2) ) TEXT OF INTERNATIONAL CONVENTION ON LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION WITH THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES The States parties to the present Convention, Conscious of the dangers posed by the world-wide carriage by sea of hazardous and noxious substances, Convinced of the need to ensure that adequate, prompt and effective compensation is available to persons who suffer damage caused by incidents in connection with the carriage by sea of such substances, MERCHANT SHIPPING AMENDMENT ACT 2004 8 Desiring to adopt uniform international rules and procedures for determining questions of liability and compensation in respect of such damage, Considering that the economic consequences of damage caused by the carriage by sea of hazardous and noxious substances should be shared by the shipping industry and the cargo interests involved, Have agreed as follows — CHAPTER I GENERAL PROVISIONS DEFINITIONS Article 1 For the purposes of this Convention — 1. "Ship" means any seagoing vessel and seaborne craft, of any type whatsoever. 2. "Person" means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions. 3. "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. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship's operator, "owner" shall mean such company. 4. "Receiver" means either — (a) the person who physically receives contributing cargo discharged in the ports and terminals of a State Party; provided that if at the time of receipt the person who physically receives the cargo acts as an agent for another who is subject to the jurisdiction of any State Party, then the principal shall be deemed to be the receiver, if the agent discloses the principal to the HNS Fund; or (b) the person in the State Party who in accordance with the national law of that State Party is MERCHANT SHIPPING AMENDMENT ACT 2004 9 deemed to be the receiver of contributing cargo discharged in the ports and terminals of a State Party, provided that the total contributing cargo received according to such national law is substantially the same as that which would have been received under (a). 5. "Hazardous and noxious substances" (HNS) means: (a) any substances, materials and articles carried on board a ship as cargo, referred to in (i) to (vii) below — (i) oils carried in bulk listed in appendix I of Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended; (ii) noxious liquid substances carried in bulk referred to in appendix II of Annex II to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended, and those substances and mixtures provisionally categorized as falling in pollution category A, B, C or D in accordance with regulation 3(4) of the said Annex II; (iii) dangerous liquid substances carried in bulk listed in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, 1983, as amended, and the dangerous products for which the preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.3 of the Code; (iv) dangerous, hazardous and harmful substances, materials and articles in packaged form covered by the MERCHANT SHIPPING AMENDMENT ACT 2004 10 International Maritime Dangerous Goods Code, as amended; (v) liquefied gases as listed in chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk, 1983, as amended, and the products for which preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code; (vi) liquid substances carried in bulk with a flashpoint not exceeding 60 degrees Celsius (measured by a closed cup test); (vii) solid bulk materials possessing chemical hazards covered by appendix B of the Code of Safe Practice for Solid Bulk Cargoes, as amended, to the extent that these substances are also subject to the provisions of the International Maritime Dangerous Goods Code when carried in packaged form; and (b) residues from the previous carriage in bulk of substances referred to in (a)(i) to (iii) and (v) to (vii) above. 6. "Damage" means — (a) loss of life or personal injury on board or outside the ship carrying the hazardous and noxious substances caused by those substances; (b) loss of or damage to property outside the ship carrying the hazardous and noxious substances caused by those substances; (c) loss or damage by contamination of the environment caused by the hazardous and noxious substances, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and MERCHANT SHIPPING AMENDMENT ACT 2004 11 (d) the costs of preventive measures and further loss or damage caused by preventive measures. Where it is not reasonably possible to separate damage caused by the hazardous and noxious substances from that caused by other factors, all such damage shall be deemed to be caused by the hazardous and noxious substances except if, and to the extent that, the damage caused by other factors is damage of a type referred to in article 4, paragraph 3. In this paragraph, "caused by those substances" means caused by the hazardous or noxious nature of the substances. 7. "Preventive measures" means any reasonable measures taken by any person after an incident has occurred to prevent or minimize damage. 8. "Incident" means any occurrence or series of occurrences having the same origin, which causes damage or creates a grave and imminent threat of causing damage. 9. "Carriage by sea" means the period from the time when the hazardous and noxious substances enter any part of the ship's equipment, on loading, to the time they cease to be present in any part of the ship's equipment, on discharge. If no ship's equipment is used, the period begins and ends respectively when the hazardous and noxious substances cross the ship's rail. 10. "Contributing cargo" means any hazardous and noxious substances which are carried by sea as cargo to a port or terminal in the territory of a State Party and discharged in that State. Cargo in transit which is transferred directly, or through a port or terminal, from one ship to another, either wholly or in part, in the course of carriage from the port or terminal of original loading to the port or terminal of final destination shall be considered as contributing cargo only in respect of receipt at the final destination. 11. The "HNS Fund" means the International Hazardous and Noxious Substances Fund established under article 13. 12. "Unit of account" means the Special Drawing Right as defined by the International Monetary Fund. 13. "State of the ship's registry" means in relation to a registered ship the State of registration of the ship, and in relation to an unregistered ship the State whose flag the ship is entitled to fly. 14. "Terminal" means any site for the storage of hazardous and noxious substances received from waterborne transportation, MERCHANT SHIPPING AMENDMENT ACT 2004 12 including any facility situated off-shore and linked by pipeline or otherwise to such site. 15. "Director" means the Director of the HNS Fund. 16. "Organization" means the International Maritime Organization. 17. "Secretary-General" means the Secretary-General of the Organization. ANNEXES Article 2 The Annexes to this Convention shall constitute an integral part of this Convention. SCOPE OF APPLICATION Article 3 This Convention shall apply exclusively — (a) to any damage caused in the territory, including the territorial sea, of a State Party; (b) to damage by contamination of the environment caused in the exclusive economic zone of a State Party, established in accordance with international law, or, if a State Party 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; (c) to damage, other than damage by contamination of the environment, caused outside the territory, including the territorial sea, of any State, if this damage has been caused by a substance carried on board a ship registered in a State Party or, in the case of an unregistered ship, on board a ship entitled to fly the flag of a State Party; and MERCHANT SHIPPING AMENDMENT ACT 2004 13 (d) to preventive measures, wherever taken. Article 4 1. This Convention shall apply to claims, other than claims arising out of any contract for the carriage of goods and passengers, for damage arising from the carriage of hazardous and noxious substances by sea. 2. This Convention shall not apply to the extent that its provisions are incompatible with those of the applicable law relating to workers' compensation or social security schemes. 3. This Convention shall not apply — (a) to pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended, whether or not compensation is payable in respect of it under that Convention; and (b) to damage caused by a radioactive material of class 7 either in the International Maritime Dangerous Goods Code, as amended, or in appendix B of the Code of Safe Practice for Solid Bulk Cargoes, as amended. 4. Except as provided in paragraph 5, the provisions of this Convention shall not apply to warships, naval auxiliary or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service. 5. A State Party may decide to apply this Convention to its warships or other vessels described in paragraph 4, in which case it shall notify the Secretary-General thereof specifying the terms and conditions of such application. 6. With respect to ships owned by a State Party and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in article 38 and shall waive all defences based on its status as a sovereign State. Article 5 1. A State may, at the time of ratification, acceptance, approval of, or accession to, this Convention, or any time thereafter, declare that this Convention does not apply to ships — (a) which do not exceed 200 gross tonnage; and MERCHANT SHIPPING AMENDMENT ACT 2004 14 (b) which carry hazardous and noxious substances only in packaged form; and (c) while they are engaged on voyages between ports or facilities of that State. 2. Where two neighbouring States agree that this Convention does not apply also to ships which are covered by paragraph 1(a) and (b) while engaged on voyages between ports or facilities of those States, the States concerned may declare that the exclusion from the application of this Convention declared under paragraph 1 covers also ships referred to in this paragraph. 3. Any State which has made the declaration under paragraph 1 or 2 may withdraw such declaration at any time. 4. A declaration made under paragraph 1 or 2, and the withdrawal of the declaration made under paragraph 3, shall be deposited with the Secretary-General who shall, after the entry into force of this Convention, communicate it to the Director. 5. Where a State has made a declaration under paragraph 1 or 2 and has not withdrawn it, hazardous and noxious substances carried on board ships covered by that paragraph shall not be considered to be contributing cargo for the purpose of application of articles 18, 20, article 21, paragraph 5 and article 43. 6. The HNS Fund is not liable to pay compensation for damage caused by substances carried by a ship to which the Convention does not apply pursuant to a declaration made under paragraph 1 or 2, to the extent that: (a) the damage as defined in article 1, paragraph 6(a), (b) or (c) was caused in: (i) the territory, including the territorial sea, of the State which has made the declaration, or in the case of neighbouring States which have made a declaration under paragraph 2, of either of them; or (ii) the exclusive economic zone, or area mentioned in article 3(b), of the State or States referred to in (i); (b) the damage includes measures taken to prevent or minimize such damage. MERCHANT SHIPPING AMENDMENT ACT 2004 15 DUTIES OF STATE PARTIES Article 6 Each State Party shall ensure that any obligation arising under this Convention is fulfilled and shall take appropriate measures under its law including the imposing of sanctions as it may deem necessary, with a view to the effective execution of any such obligation. CHAPTER II LIABILITY LIABILITY OF THE OWNER Article 7 1. Except as provided in paragraphs 2 and 3, the owner at the time of an incident shall be liable for damage caused by any hazardous and noxious substances in connection with their carriage by sea on board the ship, provided that if an incident consists of a series of occurrences having the same origin the liability shall attach to the owner at the time of the first of such occurrences. 2. No liability shall attach to the owner if the owner proves that: (a) the damage resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or (b) the damage was wholly caused by an act or omission done with the intent to cause damage by a third party; or (c) the damage was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function; or (d) the failure of the shipper or any other person to furnish information concerning the hazardous and noxious nature of the substances shipped either MERCHANT SHIPPING AMENDMENT ACT 2004 16 (i) has caused the damage, wholly or partly; or (ii) has led the owner not to obtain insurance in accordance with article 12; provided that neither the owner nor its servants or agents knew or ought reasonably to have known of the hazardous and noxious nature of the substances shipped. 3. If the owner proves that the damage resulted wholly or partly 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 owner may be exonerated wholly or partially from liability to such person. 4. No claim for compensation for damage shall be made against the owner otherwise than in accordance with this Convention. 5. Subject to paragraph 6, no claim for compensation for damage under this Convention or otherwise may be made against: (a) the servants or agents of the owner or the members of the crew; (b) the pilot or any other person who, without being a member of the crew, performs services for the ship; (c) any chartered (howsoever described, including a bareboat charterer), manager or operator of the ship; (d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority; (e) any person taking preventive measures; and (f) the servants or agents of persons mentioned in (c), (d) and (e); unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. 6. Nothing in this Convention shall prejudice any existing right of recourse of the owner against any third party, including, but not limited to, the shipper or the receiver of the substance causing the damage, or the persons indicated in paragraph 5. MERCHANT SHIPPING AMENDMENT ACT 2004 17 INCIDENTS INVOLVING TWO OR MORE SHIPS Article 8 1. Whenever damage has resulted from an incident involving two or more ships each of which is carrying hazardous and noxious substances, each owner, unless exonerated under article 7, shall be liable for the damage. The owners shall be jointly and severally liable for all such damage which is not reasonably separable. 2. However, owners shall be entitled to the limits of liability applicable to each of them under article 9. 3. Nothing in this article shall prejudice any right of recourse of an owner against any other owner. LIMITATION OF LIABILITY Article 9 1. The owner of a ship shall be entitled to limit liability under this Convention in respect of any one incident to an aggregate amount calculated as follows — (a) 10 million units of account for a ship not exceeding 2,000 units of tonnage; and (b) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (a): for each unit of tonnage from 2,001 to 50,000 units of tonnage, 1,500 units of account for each unit of tonnage in excess of 50,000 units of tonnage, 360 units of account provided, however, that this aggregate amount shall not in any event exceed 100 million units of account. 2. The owner shall not be entitled to limit liability under this Convention if it is proved that the damage resulted from the personal act or omission of the owner, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. 3. The owner shall, for the purpose of benefiting from the limitation provided for in paragraph 1, constitute a fund for the total sum representing the limit of liability established in MERCHANT SHIPPING AMENDMENT ACT 2004 18 accordance with paragraph 1 with the court or other competent authority of any one of the States Parties in which action is brought under article 38 or, if no action is brought, with any court or other competent authority in any one of the States Parties in which an action can be brought under article 38. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the law of the State Party where the fund is constituted, and considered to be adequate by the court or other competent authority. 4. Subject to the provisions of article 11, the fund shall be distributed among the claimants in proportion to the amounts of their established claims. 5. If before the fund is distributed the owner or any of the servants or agents of the owner or any person providing to the owner insurance or other financial security has as a result of the incident in question, paid compensation for damage, such person shall, up to the amount that person has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention. 6. The right of subrogation provided for in paragraph 5 may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for damage which such person may have paid but only to the extent that such subrogation is permitted under the applicable national law. 7. Where owners or other persons establish that they may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which the right of subrogation would have been enjoyed under paragraphs 5 or 6 had the compensation been paid before the fund was distributed, the court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce the claim against the fund. 8. Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize damage shall rank equally with other claims against the fund. 9. (a) The amounts mentioned in paragraph 1 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 MERCHANT SHIPPING AMENDMENT ACT 2004 19 constitution of the fund referred to in paragraph 3.The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State. (b) Nevertheless, a State Party which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9(a) may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 9(a) shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five-and-a-half milligrammes of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned. (c) The calculation mentioned in the last sentence of paragraph 9(a) and the conversion mentioned in paragraph 9(b) shall be made in such manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in paragraph 1 as would result from the application of the first two sentences of paragraph 9(a). States Parties shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 9(a), or the result of the conversion in paragraph 9(b) as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either. 10. For the purpose of this article the ship's tonnage shall be the gross tonnage calculated in accordance with the tonnage MERCHANT SHIPPING AMENDMENT ACT 2004 20 measurement regulations contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969. 11. The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this article on the same conditions and having the same effect as if it were constituted by the owner. Such a fund may be constituted even if, under the provisions of paragraph 2, the owner is not entitled to limitation of liability, but its constitution shall in that case not prejudice the rights of any claimant against the owner. Article 10 1. Where the owner, after an incident, has constituted a fund in accordance with article 9 and is entitled to limit liability: (a) no person having a claim for damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim; and (b) the court or other competent authority of any State Party shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest. 2. The foregoing shall, however, only apply if the claimant has access to the court administering the fund and the fund is actually available in respect of the claim. DEATH AND INJURY Article 11 Claims in respect of death or personal injury have priority over other claims save to the extent that the aggregate of such claims exceeds two-thirds of the total amount established in accordance with article 9, paragraph 1. MERCHANT SHIPPING AMENDMENT ACT 2004 21 COMPULSORY INSURANCE OF THE OWNER Article 12 1. The owner of a ship registered in a State Party and actually carrying hazardous and noxious substances shall be required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, in the sums fixed by applying the limits of liability prescribed in article 9, paragraph 1, to cover liability for damage under this Convention. 2. A compulsory insurance certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party such compulsory insurance certificate shall be issued or certified by the appropriate authority of the State of the ship's registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of any State Party. This compulsory insurance certificate shall be in the form of the model set out in Annex I and shall contain the following particulars — (a) name of the ship, distinctive number or letters and port of registry; (b) name and principal place of business of the owner; (c) IMO ship identification number; (d) type and duration of security; (e) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established; and (f) period of validity of certificate, which shall not be longer than the period of validity of the insurance or other security. 3. The compulsory insurance certificate shall be in the official language or languages of the issuing State. If the language used is neither English, nor French nor Spanish, the text shall include a translation into one of these languages. MERCHANT SHIPPING AMENDMENT ACT 2004 22 4. The compulsory insurance certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship's registry or, if the ship is not registered in a State Party, with the authority of the State issuing or certifying the certificate. 5. An insurance or other financial security shall not satisfy the requirements of this article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 4, unless the compulsory insurance certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this article. 6. The State of the ship's registry shall, subject to the provisions of this article, determine the conditions of issue and validity of the compulsory insurance certificate. 7. Compulsory insurance certificates issued or certified under the authority of a State Party in accordance with paragraph 2 shall be accepted by other States Parties for the purposes of this Convention and shall be regarded by other States Parties as having the same force as compulsory insurance certificates issued or certified by them even if issued or certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the compulsory insurance certificate is not financially capable of meeting the obligations imposed by this Convention. 8. Any claim for compensation for damage may be brought directly against the insurer or other person providing financial security for the owner's liability for damage. In such case the defendant may, even if the owner is not entitled to limitation of liability, benefit from the limit of liability prescribed in accordance with paragraph 1. The defendant may further invoke the defences (other than the bankruptcy or winding up of the owner) which the owner would have been entitled to invoke. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the owner, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the owner against the defendant. The defendant shall MERCHANT SHIPPING AMENDMENT ACT 2004 23 in any event have the right to require the owner to be joined in the proceedings. 9. Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 shall be available exclusively for the satisfaction of claims under this Convention. 10. A State Party shall not permit a ship under its flag to which this article applies to trade unless a certificate has been issued under paragraph 2 or 12. 11. Subject to the provisions of this article, each State Party shall ensure, under its national law, that insurance or other security in the sums specified in paragraph 1 is in force in respect of any ship, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an offshore facility in its territorial sea. 12. If insurance or other financial security is not maintained in respect of a ship owned by a State Party, the provisions of this article relating thereto shall not be applicable to such ship, but the ship shall carry a compulsory insurance certificate issued by the appropriate authorities of the State of the ship's registry stating that the ship is owned by that State and that the ship's liability is covered within the limit prescribed in accordance with paragraph 1. Such a compulsory insurance certificate shall follow as closely as possible the model prescribed by paragraph 2. CHAPTER III COMPENSATION BY THE INTERNATIONAL HAZARDOUS AND NOXIOUS SUBSTANCES FUND (HNS FUND) ESTABLISHMENT OF THE HNS FUND Article 13 1. The International Hazardous and Noxious Substances Fund (HNS Fund) is hereby established with the following aims: (a) to provide compensation for damage in connection with the carriage of hazardous and noxious substances by sea, to the extent that the protection afforded by chapter II is inadequate or not available; and MERCHANT SHIPPING AMENDMENT ACT 2004 24 (b) to give effect to the related tasks set out in article 15. 2. The HNS Fund shall in each State Party 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 State Party shall recognize the Director as the legal representative of the HNS Fund. COMPENSATION Article 14 1. For the purpose of fulfilling its function under article 13, paragraph 1(a), the HNS Fund shall pay compensation to any person suffering damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of chapter II: (a) because no liability for the damage arises under chapter II; (b) because the owner liable for the damage under chapter II is financially incapable of meeting the obligations under this Convention in full and any financial security that may be provided under chapter II does not cover or is insufficient to satisfy the claims for compensation for damage; an owner being treated as financially incapable of meeting these 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 chapter II after having taken all reasonable steps to pursue the available legal remedies; (c) because the damage exceeds the owner's liability under the terms of chapter II. 2. Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize damage shall be treated as damage for the purposes of this article. 3. The HNS Fund shall incur no obligation under the preceding paragraphs if — MERCHANT SHIPPING AMENDMENT ACT 2004 25 (a) it proves that the damage resulted from an act of war, hostilities, civil war or insurrection or was caused by hazardous and noxious substances which had 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 there is a reasonable probability that the damage resulted from an incident involving one or more ships. 4. If the HNS Fund proves that the damage resulted wholly or partly 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 HNS Fund may be exonerated wholly or partially from its obligation to pay compensation to such person. The HNS Fund shall in any event be exonerated to the extent that the owner may have been exonerated under article 7, paragraph 3. However, there shall be no such exoneration of the HNS Fund with regard to preventive measures. 5. (a) Except as otherwise provided in subparagraph (b), the aggregate amount of compensation payable by the HNS Fund under this article shall in respect of any one incident be limited, so that the total sum of that amount and any amount of compensation actually paid under chapter II for damage within the scope of application of this Convention as defined in article 3 shall not exceed 250 million units of account. (b) The aggregate amount of compensation payable by the HNS Fund under this article for damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 250 million units of account. (c) Interest accrued on a fund constituted in accordance with article 9, paragraph 3, if any, shall not be taken into account for the computation of the maximum compensation payable by the HNS Fund under this article. MERCHANT SHIPPING AMENDMENT ACT 2004 26 (d) The amounts mentioned in this article shall be converted into national currency on the basis of the value of that currency with reference to the Special Drawing Right on the date of the decision of the Assembly of the HNS Fund as to the first date of payment of compensation. 6. Where the amount of established claims against the HNS Fund exceeds the aggregate amount of compensation payable under paragraph 5, 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. Claims in respect of death or personal injury shall have priority over other claims, however, save to the extent that the aggregate of such claims exceeds two-thirds of the total amount established in accordance with paragraph 5. 7. The Assembly of the HNS Fund may decide that, in exceptional cases, compensation in accordance with this Convention can be paid even if the owner has not constituted a fund in accordance with chapter II. In such cases paragraph 5(d) applies accordingly. RELATED TASKS OF THE HNS FUND Article 15 For the purpose of fulfilling its function under article 13, paragraph 1(a), the HNS Fund shall have the following tasks: (a) to consider claims made against the HNS Fund; (b) to prepare an estimate in the form of a budget for each calendar year of: Expenditure: (i) costs and expenses of the administration of the HNS Fund in the relevant year and any deficit from operations in the preceding years; and (ii) payments to be made by the HNS Fund in the relevant year; Income: MERCHANT SHIPPING AMENDMENT ACT 2004 27 (iii) surplus funds from operations in preceding years, including any interest; (iv) initial contributions to be paid in the course of the year; (v) annual contributions if required to balance the budget; and (vi) any other income; (c) to use at the request of a State Party 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 damage arising from an incident in respect of which the HNS Fund may be called upon to pay compensation under this Convention; and (d) to provide, on conditions laid down in the internal regulations, credit facilities with a view to the taking of preventive measures against damage arising from a particular incident in respect of which the HNS Fund may be called upon to pay compensation under this Convention. GENERAL PROVISIONS ON CONTRIBUTIONS Article 16 1. The HNS Fund shall have a general account, which shall be divided into sectors. 2. The HNS Fund shall, subject to article 19, paragraphs 3 and 4, also have separate accounts in respect of: (a) oil as defined in article 1, paragraph 5(a)(i) (oil account); (b) liquefied natural gases of light hydrocarbons with methane as the main constituent (LNG) (LNG account); and (c) liquefied petroleum gases of light hydrocarbons with propane and butane as the main constituents (LPG) (LPG account). MERCHANT SHIPPING AMENDMENT ACT 2004 28 3. There shall be initial contributions and, as required, annual contributions to the HNS Fund. 4. Contributions to the HNS Fund shall be made into the general account in accordance with article 18, to separate accounts in accordance with article 19 and to either the general account or separate accounts in accordance with article 20 or article 21, paragraph 5. Subject to article 19, paragraph 6, the general account shall be available to compensate damage caused by hazardous and noxious substances covered by that account, and a separate account shall be available to compensate damage caused by a hazardous and noxious substance covered by that account. 5. For the purposes of article 18, article 19, paragraph 1(a)(i), paragraph 1(a)(ii) and paragraph 1(c), article 20 and article 21, paragraph 5, where the quantity of a given type of contributing cargo received in the territory of a State Party by any person in a calendar year when aggregated with the quantities of the same type of cargo received in the same State Party in that year by any associated person or persons exceeds the limit specified in the respective subparagraphs, such a person shall pay contributions in respect of the actual quantity received by that person notwithstanding that quantity did not exceed the respective limit. 6. "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. GENERAL PROVISIONS ON ANNUAL CONTRIBUTIONS Article 17 1. Annual contributions to the general account and to each separate account shall be levied only as required to make payments by the account in question. 2. Annual contributions payable pursuant to articles 18, 19 and article 21, paragraph 5 shall be determined by the Assembly and shall be calculated in accordance with those articles on the basis of the units of contributing cargo received or, in respect of cargoes referred to in article 19, paragraph 1(b), discharged during the preceding calendar year or such other year as the Assembly may decide. 3. The Assembly shall decide the total amount of annual contributions to be levied to the general account and to each MERCHANT SHIPPING AMENDMENT ACT 2004 29 separate account. Following that decision the Director shall, in respect of each State Party, calculate for each person liable to pay contributions in accordance with article 18, article 19, paragraph 1 and article 21, paragraph 5, the amount of that person's annual contribution to each account, on the basis of a fixed sum for each unit of contributing cargo reported in respect of the person during the preceding calendar year or such other year as the Assembly may decide. For the general account, the above-mentioned fixed sum per unit of contributing cargo for each sector shall be calculated pursuant to the regulations contained in Annex II to this Convention. For each separate account, the fixed sum per unit of contributing cargo referred to above shall be calculated by dividing the total annual contribution to be levied to that account by the total quantity of cargo contributing to that account. 4. The Assembly may also levy annual contributions for administrative costs and decide on the distribution of such costs between the sectors of the general account and the separate accounts. 5. The Assembly shall also decide on the distribution between the relevant accounts and sectors of amounts paid in compensation for damage caused by two or more substances which fall within different accounts or sectors, on the basis of an estimate of the extent to which each of the substances involved contributed to the damage. ANNUAL CONTRIBUTIONS TO THE GENERAL ACCOUNT Article 18 1. Subject to article 16, paragraph 5, annual contributions to the general account shall be made in respect of each State Party by any person who was the receiver in that State in the preceding calendar year, or such other year as the Assembly may decide, of aggregate quantities exceeding 20,000 tonnes of contributing cargo, other than substances referred to in article 19, paragraph 1, which fall within the following sectors: (a) solid bulk materials referred to in article 1, paragraph 5(a)(vii); (b) substances referred to in paragraph 2; and (c) other substances. MERCHANT SHIPPING AMENDMENT ACT 2004 30 2. Annual contributions shall also be payable to the general account by persons who would have been liable to pay contributions to a separate account in accordance with article 19, paragraph 1 had its operation not been postponed or suspended in accordance with article 19. Each separate account the operation of which has been postponed or suspended under article 19 shall form a separate sector within the general account. ANNUAL CONTRIBUTIONS TO SEPARATE ACCOUNTS Article 19 1. Subject to article 16, paragraph 5, annual contributions to separate accounts shall be made in respect of each State Party: (a) in the case of the oil account, (i) by any person who has received in that State in the preceding calendar year, or such other year as the Assembly may decide, total quantities exceeding 150,000 tonnes of contributing oil as defined in article 1, paragraph 3 of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, as amended, and who is or would be liable to pay contributions to the International Oil Pollution Compensation Fund in accordance with article 10 of that Convention; and (ii) by any person who was the receiver in that State in the preceding calendar year, or such other year as the Assembly may decide, of total quantities exceeding 20,000 tonnes of other oils carried in bulk listed in appendix I of Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended; (b) in the case of the LNG account, by any person who in the preceding calendar year, or such other year as the Assembly may decide, MERCHANT SHIPPING AMENDMENT ACT 2004 31 immediately prior to its discharge, held title to an LNG cargo discharged in a port or terminal of that State; (c) in the case of the LPG account, by any person who in the preceding calendar year, or such other year as the Assembly may decide, was the receiver in that State of total quantities exceeding 20,000 tonnes of LPG. 2. Subject to paragraph 3, the separate accounts referred to in paragraph 1 above shall become effective at the same time as the general account. 3. The initial operation of a separate account referred to in article 16, paragraph 2 shall be postponed until such time as the quantities of contributing cargo in respect of that account during the preceding calendar year, or such other year as the Assembly may decide, exceed the following levels — (a) 350 million tonnes of contributing cargo in respect of the oil account; (b) 20 million tonnes of contributing cargo in respect of the LNG account; and (c) 15 million tonnes of contributing cargo in respect of the LPG account. 4. The Assembly may suspend the operation of a separate account if — (a) the quantities of contributing cargo in respect of that account during the preceding calendar year fall below the respective level specified in paragraph 3; or (b) when six months have elapsed from the date when the contributions were due, the total unpaid contributions to that account exceed ten per cent of the most recent levy to that account in accordance with paragraph 1. 5. The Assembly may reinstate the operation of a separate account which has been suspended in accordance with paragraph 4. 6. Any person who would be liable to pay contributions to a separate account the operation of which has been postponed in accordance with paragraph 3 or suspended in accordance with MERCHANT SHIPPING AMENDMENT ACT 2004 32 paragraph 4, shall pay into the general account the contributions due by that person in respect of that separate account. For the purpose of calculating future contributions, the postponed or suspended separate account shall form a new sector in the general account and shall be subject to the HNS points system defined in Annex II. INITIAL CONTRIBUTIONS Article 20 1. In respect of each State Party, initial contributions shall be made of an amount which shall for each person liable to pay contributions in accordance with article 16, paragraph 5, articles 18, 19 and article 21, paragraph 5 be calculated on the basis of a fixed sum, equal for the general account and each separate account, for each unit of contributing cargo received or, in the case of LNG, discharged in that State, during the calendar year preceding that in which this Convention enters into force for that State. 2. The fixed sum and the units for the different sectors within the general account as well as for each separate account referred to in paragraph 1 shall be determined by the Assembly. 3. Initial contributions shall be paid within three months following the date on which the HNS Fund issues invoices in respect of each State Party to persons liable to pay contributions in accordance with paragraph 1. REPORTS Article 21 1. Each State Party shall ensure that any person liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article appears on a list to be established and kept up to date by the Director in accordance with the provisions of this article. 2. For the purposes set out in paragraph 1, each State Party shall communicate to the Director, at a time and in the manner to be prescribed in the internal regulations of the HNS Fund, the name and address of any person who in respect of the State is liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article, as well as data on the relevant MERCHANT SHIPPING AMENDMENT ACT 2004 33 quantities of contributing cargo for which such a person is liable to contribute in respect of the preceding calendar year. 3. For the purposes of ascertaining who are, at any given time, the persons liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article and of establishing, where applicable, the quantities of cargo to be taken into account for any such person when determining the amount of the contribution, the list shall be prima facie evidence of the facts stated therein. 4. Where a State Party does not fulfil its obligations to communicate to the Director the information referred to in paragraph 2 and this results in a financial loss for the HNS Fund, that State Party shall be liable to compensate the HNS Fund for such loss. The Assembly shall, on the recommendation of the Director, decide whether such compensation shall be payable by a State Party. 5. In respect of contributing cargo carried from one port or terminal of a State Party to another port or terminal located in the same State and discharged there, States Parties shall have the option of submitting to the HNS Fund a report with an annual aggregate quantity for each account covering all receipts of contributing cargo, including any quantities in respect of which contributions are payable pursuant to article 16, paragraph 5. The State Party shall, at the time of reporting, either — (a) notify the HNS Fund that that State will pay the aggregate amount for each account in respect of the relevant year in one lump sum to the HNS Fund; or (b) instruct the HNS Fund to levy the aggregate amount for each account by invoicing individual receivers or, in the case of LNG, the title holder who discharges within the jurisdiction of that State Party, for the amount payable by each of them. These persons shall be identified in accordance with the national law of the State concerned. MERCHANT SHIPPING AMENDMENT ACT 2004 34 NON-PAYMENT OF CONTRIBUTIONS Article 22 1. The amount of any contribution due under articles 18, 19, 20 or article 21, paragraph 5 and which is in arrears shall bear interest at a rate which shall be determined in accordance with the internal regulations of the HNS Fund, provided that different rates may be fixed for different circumstances. 2. Where a person who is liable to pay contributions in accordance with articles 18, 19, 20 or article 21, paragraph 5 does not fulfil the obligations in respect of any such contribution or any part thereof and is in arrears, the Director shall take all appropriate action, including court action, against such a person on behalf of the HNS 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. OPTIONAL LIABILITY OF STATES PARTIES FOR THE PAYMENT OF CONTRIBUTIONS Article 23 1. Without prejudice to article 21, paragraph 5, a State Party may at the time when it deposits its instrument of ratification, acceptance, approval or accession or at any time thereafter declare that it assumes responsibility for obligations imposed by this Convention on any person liable to pay contributions in accordance with articles 18, 19, 20 or article 21, paragraph 5 in respect of hazardous and noxious substances received or discharged in the territory of that State. Such a 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 46, it shall be deposited with the Secretary-General who shall after the entry into force of this 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. MERCHANT SHIPPING AMENDMENT ACT 2004 35 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 a 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. ORGANIZATION AND ADMINISTRATION Article 24 The HNS Fund shall have an Assembly and a Secretariat headed by the Director. ASSEMBLY Article 25 The Assembly shall consist of all States Parties to this Convention. Article 26 The functions of the Assembly shall be — (a) to elect at each regular session its President and two Vice-Presidents who shall hold office until the next regular session; (b) to determine its own rules of procedure, subject to the provisions of this Convention; (c) to develop, apply and keep under review internal and financial regulations relating to the aim of the HNS Fund as described in article 13, paragraph 1(a), and the related tasks of the HNS Fund listed in article 15; (d) 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; MERCHANT SHIPPING AMENDMENT ACT 2004 36 (e) to adopt the annual budget prepared in accordance with article 15(b); (f) to consider and approve as necessary any recommendation of the Director regarding the scope of definition of contributing cargo; (g) to appoint auditors and approve the accounts of the HNS Fund; (h) to approve settlements of claims against the HNS Fund, to take decisions in respect of the distribution among claimants of the available amount of compensation in accordance with article 14 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 damage are compensated as promptly as possible; (i) to establish a Committee on Claims for Compensation with at least 7 and not more than 15 members and 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 States Parties are appropriately represented; the Rules of Procedure of the Assembly may be applied, mutatis mutandis, for the work of such subsidiary body; (j) to determine which States not party to this Convention, which Associate Members of the Organization and which intergovernmental and international non-governmental organizations shall be admitted to take part, without voting rights, in meetings of the Assembly and subsidiary bodies; (k) to give instructions concerning the administration of the HNS Fund to the Director and subsidiary bodies; MERCHANT SHIPPING AMENDMENT ACT 2004 37 (l) to supervise the proper execution of this Convention and of its own decisions; (m)to review every five years the implementation of this Convention with particular reference to the performance of the system for the calculation of levies and the contribution mechanism for domestic trade; and (n) to perform such other functions as are allocated to it under this Convention or are otherwise necessary for the proper operation of the HNS Fund. Article 27 1. Regular sessions of the Assembly shall take place once every calendar year upon convocation by the Director. 2. Extraordinary sessions of the Assembly shall be convened by the Director at the request 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 President of the Assembly. The Director shall give members at least thirty days' notice of such sessions. Article 28 A majority of the members of the Assembly shall constitute a quorum for its meetings. SECRETARIAT Article 29 1. The Secretariat shall comprise the Director and such staff as the administration of the HNS Fund may require. 2. The Director shall be the legal representative of the HNS Fund. Article 30 1. The Director shall be the chief administrative officer of the HNS Fund. Subject to the instructions given by the Assembly, the Director shall perform those functions which are assigned to the Director MERCHANT SHIPPING AMENDMENT ACT 2004 38 by this Convention, the internal regulations of the HNS Fund and the Assembly. 2. The Director shall in particular — (a) appoint the personnel required for the administration of the HNS Fund; (b) take all appropriate measures with a view to the proper administration of the assets of the HNS Fund; (c) collect the contributions due under this Convention while observing in particular the provisions of article 22, paragraph 2; (d) to the extent necessary to deal with claims against the HNS Fund and to carry out the other functions of the HNS Fund, employ the services of legal, financial and other experts; (e) take all appropriate measures for dealing with claims against the HNS Fund, within the limits and on conditions to be laid down in the internal regulations of the HNS Fund, including the final settlement of claims without the prior approval of the Assembly where these regulations so provide; (f) prepare and submit to the Assembly the financial statements and budget estimates for each calendar year; (g) prepare, in consultation with the President of the Assembly, and publish a report on the activities of the HNS Fund during the previous calendar year; and (h) prepare, collect and circulate the documents and information which may be required for the work of the Assembly and subsidiary bodies. Article 31 In the performance of their duties the Director and the staff and experts appointed by the Director shall not seek or receive instructions from any Government or from any authority external to the HNS Fund. They shall refrain from any action which might adversely reflect on their position as international officials. Each State Party on its part undertakes to respect the MERCHANT SHIPPING AMENDMENT ACT 2004 39 exclusively international character of the responsibilities of the Director and the staff and experts appointed by the Director, and not to seek to influence them in the discharge of their duties. FINANCES Article 32 1. Each State Party shall bear the salary, travel and other expenses of its own delegation to the Assembly and of its representatives on subsidiary bodies. 2. Any other expenses incurred in the operation of the HNS Fund shall be borne by the HNS Fund. VOTING Article 33 The following provisions shall apply to voting in the Assembly — (a) each member shall have one vote; (b) except as otherwise provided in article 34, decisions of the Assembly shall be made by a majority vote of the members present and voting; (c) decisions where a two-thirds majority is required shall be a two-thirds majority vote of members present; and (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 34 The following decisions of the Assembly shall require a two thirds majority — (a) a decision under article 19, paragraphs 4 or 5 to suspend or reinstate the operation of a separate account; MERCHANT SHIPPING AMENDMENT ACT 2004 40 (b) a decision under article 22, paragraph 2, not to take or continue action against a contributor; (c) the appointment of the Director under article 26(d); (d) the establishment of subsidiary bodies, under article 26(i), and matters relating to such establishment; and (e) a decision under article 51, paragraph 1, that this Convention shall continue to be in force. TAX EXEMPTIONS AND CURRENCY REGULATIONS Article 35 1. The HNS Fund, its assets, income, including contributions, and other property necessary for the exercise of its functions as described in article 13, paragraph 1, shall enjoy in all States Parties exemption from all direct taxation. 2. When the HNS Fund makes substantial purchases of movable or immovable property, or of services which are necessary for the exercise of its official activities in order to achieve its aims as set out in article 13, paragraph 1, the cost of which include indirect taxes or sales taxes, the Governments of the States Parties shall take, whenever possible, appropriate measures for the remission or refund of the amount of such duties and taxes. Goods thus acquired shall not be sold against payment or given away free of charge unless it is done according to conditions approved by the Government of the State having granted or supported the remission or refund. 3. No exemption shall be accorded in the case of duties, taxes or dues which merely constitute payment for public utility services. 4. The HNS 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 HNS Fund as well as victims and owners receiving compensation from the HNS Fund shall be subject to the fiscal legislation of the State where they are MERCHANT SHIPPING AMENDMENT ACT 2004 41 taxable, no special exemption or other benefit being conferred on them in this respect. 6. Notwithstanding existing or future regulations concerning currency or transfers, States Parties shall authorize the transfer and payment of any contribution to the HNS Fund and of any compensation paid by the HNS Fund without any restriction. CONFIDENTIALITY OF INFORMATION Article 36 Information relating to individual contributors supplied for the purpose of this Convention shall not be divulged outside the HNS Fund except in so far as it may be strictly necessary to enable the HNS Fund to carry out its functions including the bringing and defending of legal proceedings. CHAPTER IV CLAIMS AND ACTIONS LIMITATION OF ACTIONS Article 37 1. Rights to compensation under chapter II shall be extinguished unless an action is brought thereunder within three years from the date when the person suffering the damage knew or ought reasonably to have known of the damage and of the identity of the owner. 2. Rights to compensation under chapter III shall be extinguished unless an action is brought thereunder or a notification has been made pursuant to article 39, paragraph 7, within three years from the date when the person suffering the damage knew or ought reasonably to have known of the damage. 3. In no case, however, shall an action be brought later than ten years from the date of the incident which caused the damage. 4. Where the incident consists of a series of occurrences, the ten year period mentioned in paragraph 3 shall run from the date of the last of such occurrences. MERCHANT SHIPPING AMENDMENT ACT 2004 42 JURISDICTION IN RESPECT OF ACTION AGAINST THE OWNER Article 38 1. Where an incident has caused damage in the territory, including the territorial sea or in an area referred to in article 3(b), of one or more States Parties, or preventive measures have been taken to prevent or minimize damage in such territory including the territorial sea or in such area, actions for compensation may be brought against the owner or other person providing financial security for the owner's liability only in the courts of any such States Parties. 2. Where an incident has caused damage exclusively outside the territory, including the territorial sea, of any State and either the conditions for application of this Convention set out in article 3(c) have been fulfilled or preventive measures to prevent or minimize such damage have been taken, actions for compensation may be brought against the owner or other person providing financial security for the owner's liability only in the courts of— (a) the State Party where the ship is registered or, in the case of an unregistered ship, the State Party whose flag the ship is entitled to fly; or (b) the State Party where the owner has habitual residence or where the principal place of business of the owner is established; or (c) the State Party where a fund has been constituted in accordance with article 9, paragraph 3. 3. Reasonable notice of any action taken under paragraph 1 or 2 shall be given to the defendant. 4. Each State Party shall ensure that its courts have jurisdiction to entertain actions for compensation under this Convention. 5. After a fund under article 9 has been constituted by the owner or by the insurer or other person providing financial security in accordance with article 12, the courts of the State in which such fund is constituted shall have exclusive jurisdiction to determine all matters relating to the apportionment and distribution of the fund. MERCHANT SHIPPING AMENDMENT ACT 2004 43 JURISDICTION IN RESPECT OF ACTION AGAINST THE HNS FUND OR TAKEN BY THE HNS FUND Article 39 1. Subject to the subsequent provisions of this article, any action against the HNS Fund for compensation under article 14 shall be brought only before a court having jurisdiction under article 38 in respect of actions against the owner who is liable for damage caused by the relevant incident or before a court in a State Party which would have been competent if an owner had been liable. 2. In the event that the ship carrying the hazardous or noxious substances which caused the damage has not been identified, the provisions of article 38, paragraph 1, shall apply mutatis mutandis to actions against the HNS Fund. 3. Each State Party shall ensure that its courts have jurisdiction to entertain such actions against the HNS Fund as are referred to in paragraph 1. 4. Where an action for compensation for damage has been brought before a court against the owner or the owner's guarantor, such court shall have exclusive jurisdiction over any action against the HNS Fund for compensation under the provisions of article 14 in respect of the same damage. 5. Each State Party shall ensure that the HNS Fund shall have the right to intervene as a party to any legal proceedings instituted in accordance with this Convention before a competent court of that State against the owner or the owner's guarantor. 6. Except as otherwise provided in paragraph 7, the HNS Fund shall not be bound by any judgement or decision in proceedings to which it has not been a party or by any settlement to which it is not a party. 7. Without prejudice to the provisions of paragraph 5, where an action under this Convention for compensation for damage has been brought against an owner or the owner's guarantor before a competent court in a State Party, each party to the proceedings shall be entitled under the national law of that State to notify the HNS 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 HNS Fund has in fact been in a position effectively to intervene as a party to the proceedings, any judgement rendered by the MERCHANT SHIPPING AMENDMENT ACT 2004 44 court in such proceedings shall, after it has become final and enforceable in the State where the judgement was given, become binding upon the HNS Fund in the sense that the facts and findings in that judgement may not be disputed by the HNS Fund even if the HNS Fund has not actually intervened in the proceedings. RECOGNITION AND ENFORCEMENT Article 40 1. Any judgement given by a court with jurisdiction in accordance with article 38, which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognized in any State Party, except — (a) where the judgement was obtained by fraud; or (b) where the defendant was not given reasonable notice and a fair opportunity to present the case. 2. A judgement recognized under paragraph 1 shall be enforceable in each State Party as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened. 3. Subject to any decision concerning the distribution referred to in article 14, paragraph 6, any judgement given against the HNS Fund by a court having jurisdiction in accordance with article 39, 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 State Party. SUBROGATION AND RECOURSE Article 41 1. The HNS Fund shall, in respect of any amount of compensation for damage paid by the HNS Fund in accordance with article 14, paragraph 1, acquire by subrogation the rights that the person so compensated may enjoy against the owner or the owner's guarantor. 2. Nothing in this Convention shall prejudice any rights of recourse or subrogation of the HNS Fund against any person, including persons referred to in article 7, paragraph 2(d), other than those referred to in the previous paragraph, in so far as MERCHANT SHIPPING AMENDMENT ACT 2004 45 they can limit their liability. In any event the right of the HNS Fund to subrogation against such persons shall not be less favourable than that of an insurer of the person to whom compensation has been paid. 3. Without prejudice to any other rights of subrogation or recourse against the HNS Fund which may exist, a State Party or agency thereof which has paid compensation for 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. SUPERSESSION CLAUSE Article 42 This Convention shall supersede any convention in force or open for signature, ratification or accession at the date on which this Convention is opened for signature, but only to the extent that such convention would be in conflict with it; however, nothing in this article shall affect the obligations of States Parties to States not party to this Convention arising under such convention. CHAPTER V TRANSITIONAL PROVISIONS INFORMATION ON CONTRIBUTING CARGO Article 43 When depositing an instrument referred to in article 45, paragraph 3, and annually thereafter until this Convention enters into force for a State, that State shall submit to the Secretary-General data on the relevant quantities of contributing cargo received or, in the case of LNG, discharged in that State during the preceding calendar year in respect of the general account and each separate account. FIRST SESSION OF THE ASSEMBLY Article 44 The Secretary-General shall convene the first session of the Assembly. This session shall take place as soon as possible after MERCHANT SHIPPING AMENDMENT ACT 2004 46 the entry into force of this Convention and, in any case, not more than thirty days after such entry into force. CHAPTER VI FINAL CLAUSES SIGNATURE, RATIFICATION, ACCEPTANCE, APPROVAL AND ACCESSION Article 45 1. This Convention shall be open for signature at the Headquarters of the Organization from 1 October 1996 to 30 September 1997 and shall thereafter remain open for accession. 2. States may express their consent to be bound by this Convention by: (a) signature without reservation as to ratification, acceptance or approval; or (b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or (c) accession. 3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General. ENTRY INTO FORCE Article 46 1. This Convention shall enter into force eighteen months after the date on which the following conditions are fulfilled: (a) at least twelve States, including four States each with not less than 2 million units of gross tonnage, have expressed their consent to be bound by it, and (b) the Secretary-General has received information in accordance with article 43 that those persons in such States who would be liable to contribute pursuant to article 18, paragraphs 1(a) and (c) MERCHANT SHIPPING AMENDMENT ACT 2004 47 have received during the preceding calendar year a total quantity of at least 40 million tonnes of cargo contributing to the general account. 2. For a State which expresses its consent to be bound by this Convention after the conditions for entry into force have been met, such consent shall take effect three months after the date of expression of such consent, or on the date on which this Convention enters into force in accordance with paragraph 1, whichever is the later. REVISION AND AMENDMENT Article 47 1. A conference for the purpose of revising or amending this Convention may be convened by the Organization. 2. The Secretary-General shall convene a conference of the States Parties to this Convention for revising or amending the Convention, at the request of six States Parties or one-third of the States Parties, whichever is the higher figure. 3. Any consent to be bound by this Convention expressed after the date of entry into force of an amendment to this Convention shall be deemed to apply to the Convention as amended. AMENDMENT OF LIMITS Article 48 1. Without prejudice to the provisions of article 47, the special procedure in this article shall apply solely for the purposes of amending the limits set out in article 9, paragraph 1 and article 14, paragraph 5. 2. Upon the request of at least one half, but in no case less than six, of the States Parties, any proposal to amend the limits specified in article 9, paragraph 1, and article 14, paragraph 5, shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States. 3. Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization (the Legal Committee) for consideration at a date at least six months after the date of its circulation. MERCHANT SHIPPING AMENDMENT ACT 2004 48 4. All Contracting States, 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. 5. Amendments shall be adopted by a two-thirds majority of the Contracting States present and voting in the Legal Committee, expanded as provided in paragraph 4, on condition that at least one half of the Contracting States shall be present at the time of voting. 6. 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, changes in the monetary values and the effect of the proposed amendment on the cost of insurance. It shall also take into account the relationship between the limits established in article 9, paragraph 1, and those in article 14, paragraph 5. 7. (a) No amendment of the limits under this article may be considered less than five years from the date this Convention was opened for signature nor less than five years from the date of entry into force of a previous amendment under this article. (b) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Convention increased by six per cent per year calculated on a compound basis from the date on which this Convention was opened for signature. (c) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Convention multiplied by three. 8. Any amendment adopted in accordance with paragraph 5 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 no less than one-fourth of the States which were Contracting States at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect. MERCHANT SHIPPING AMENDMENT ACT 2004 49 9. An amendment deemed to have been accepted in accordance with paragraph 8 shall enter into force eighteen months after its acceptance. 10. All Contracting States shall be bound by the amendment, unless they denounce this Convention in accordance with article 49, 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. 11. When an amendment has been adopted 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 8. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Convention enters into force for that State, if later. DENUNCIATION Article 49 1. This Convention may be denounced by any State Party at any time after the date on which it enters into force for that State Party. 2. Denunciation shall be effected by the deposit of an instrument of denunciation with the Secretary-General. 3. 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. 4. Notwithstanding a denunciation by a State Party pursuant to this article, any provisions of this Convention relating to obligations to make contributions under articles 18, 19 or article 21, paragraph 5 in respect of such payments of compensation as the Assembly may decide relating to an incident which occurs before the denunciation takes effect shall continue to apply. MERCHANT SHIPPING AMENDMENT ACT 2004 50 EXTRAORDINARY SESSIONS OF THE ASSEMBLY Article 50 1. Any State Party 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 from the remaining States Parties, request the Director to convene an extraordinary session of the Assembly. The Director shall convene the Assembly to meet not less than sixty days after receipt of the request. 2. The Director may take the initiative to convene an extraordinary session of the Assembly to meet within sixty days after the deposit of any instrument of denunciation, if the Director considers that such denunciation will result in a significant increase in the level of contributions from the remaining States Parties. 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 from the remaining States Parties, any such State may, not later than one hundred and twenty days before the date on which the denunciation takes effect, denounce this Convention with effect from the same date. CESSATION Article 51 1. This Convention shall cease to be in force — (a) on the date when the number of States Parties falls below 6; or (b) twelve months after the date on which data concerning a previous calendar year were to be communicated to the Director in accordance with article 21, if the data shows that the total quantity of contributing cargo to the general account in accordance with article 18, paragraphs 1(a) and (c) received in the States Parties in that preceding calendar year was less than 30 million tonnes. Notwithstanding (b), if the total quantity of contributing cargo to the general account in accordance with article 18, paragraphs MERCHANT SHIPPING AMENDMENT ACT 2004 51 1(a) and (c) received in the States Parties in the preceding calendar year was less than 30 million tonnes but more than 25 million tonnes, the Assembly may, if it considers that this was due to exceptional circumstances and is not likely to be repeated, decide before the expiry of the above-mentioned twelve month period that the Convention shall continue to be in force. The Assembly may not, however, take such a decision in more than two subsequent years. 2. States which are bound by this Convention on the day before the date it ceases to be in force shall enable the HNS Fund to exercise its functions as described under article 52 and shall, for that purpose only, remain bound by this Convention. WINDING UP OF THE HNS FUND Article 52 1. If this Convention ceases to be in force, the HNS Fund shall nevertheless — (a) meet its obligations in respect of any incident occurring before this Convention ceased to be in force; and (b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under (a), including expenses for the administration of the HNS Fund necessary for this purpose. 2. The Assembly shall take all appropriate measures to complete the winding up of the HNS Fund including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the HNS Fund. 3. For the purposes of this article the HNS Fund shall remain a legal person. DEPOSITARY Article 53 1. This Convention and any amendment adopted under article 48 shall be deposited with the Secretary-General. 2. The Secretary-General shall: MERCHANT SHIPPING AMENDMENT ACT 2004 52 (a) inform all States which have signed this Convention or acceded thereto, and all Members of the Organization, of: (i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof; (ii) the date of entry into force of this Convention; (iii) any proposal to amend the limits on the amounts of compensation which has been made in accordance with article 48, paragraph 2; (iv) any amendment which has been adopted in accordance with article 48, paragraph 5; (v) any amendment deemed to have been accepted under article 48, paragraph 8, together with the date on which that amendment shall enter into force in accordance with paragraphs 9 and 10 of that article; (vi) the deposit of any instrument of denunciation of this Convention together with the date on which it is received and the date on which the denunciation takes effect; and (vii) any communication called for by any article in this Convention; and (b) transmit certified true copies of this Convention to all States which have signed this Convention or acceded thereto. 3. As soon as this Convention enters into force, a certified true copy thereof shall be transmitted by the depositary to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations. MERCHANT SHIPPING AMENDMENT ACT 2004 53 LANGUAGES Article 54 This Convention is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.". Schedule 6 of principal Act repealed and replaced 9. The principal Act is amended by repealing Schedule 6 and replacing it with the following  "SCHEDULE 6 (Section 181) CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976 PART I TEXT OF CONVENTION CHAPTER 1. THE RIGHT OF LIMITATION ARTICLE 1 Persons entitled to limit liability 1. Shipowners and salvors, as hereinafter defined, may limit their liability in accordance with the rules of this Convention for claims set out in Article 2. 2. The term "shipowner" shall mean the owner, charterer, manager or operator of a seagoing ship. 3. Salvor shall mean any person rendering services in direct connection with salvage operations. Salvage operations shall also include operations referred to in Article 2, paragraph 1 (d), (e) and (f). 4. If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner or salvor is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention. MERCHANT SHIPPING AMENDMENT ACT 2004 54 5. In this Convention the liability of a shipowner shall include liability in an action brought against the vessel herself. 6. An insurer of liability for claims subject to limitation in accordance with the rules of this Convention shall be entitled to the benefits of this Convention to the same extent as the assured himself. 7. The act of invoking limitation of liability shall not constitute an admission of liability. ARTICLE 2 Claims subject to limitation 1. Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability — (a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connection with the operation of the ship or with salvage operations, and consequential loss resulting therefrom; (b) claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage; (c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship or salvage operations; (d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship; (e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship; (f) claims of a person other than the person liable in respect of measures taken in order to avert or minimise loss for which the person liable may limit his liability in accordance with this MERCHANT SHIPPING AMENDMENT ACT 2004 55 Convention, and further loss caused by such measures. 2. Claims set out in paragraph 1 shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise. However, claims set out under paragraph 1 (d), (e) and (f) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable. ARTICLE 3 Claims excepted from limitation The rules of this Convention shall not apply to — (a) claims for salvage, including, if applicable, any claim for special compensation under Article 14 of the International Convention on Salvage 1989, as amended, or contribution in general average; (b) claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage dated 29th November 1969 or of any amendment or Protocol thereto which is in force; (c) claims subject to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage; (d) claims against the shipowner of a nuclear ship for nuclear damage; (e) claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs, dependents or other persons entitled to make such claims, if under the law governing the contract of service between the shipowner or salvor and such servants the shipowner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in Article 6. MERCHANT SHIPPING AMENDMENT ACT 2004 56 ARTICLE 4 Conduct barring limitation A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge, that such loss would probably result. ARTICLE 5 Counter claims Where a person entitled to limitation of liability under the rules of this Convention has a claim against the claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this Convention shall only apply to the balance, if any. CHAPTER II. LIMITS OF LIABILITY ARTICLE 6 The general limits 1. The limits of liability for claims other than those mentioned in Article 7, arising on any distinct occasion, shall be calculated as follows — (a) in respect of claims for loss of life or personal injury — (i) 2 million Units of Account for a ship with a tonnage not exceeding 2,000 tons; (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i) — for each ton from 2,001 to 30,000 tons, 800 Units of Account; for each ton from 30,001 to 70,000 tons, 600 Units of Account; for each ton in excess of 70,000 tons, 400 Units of Account; (b) in respect of any other claims — MERCHANT SHIPPING AMENDMENT ACT 2004 57 (i) 1 million Units of Account for a ship with a tonnage not exceeding 2,000 tons; (ii) for a ship with a tonnage in excess thereof the following amount in addition to that mentioned in (i) — for each ton from 2,001 to 30,000 tons, 400 Units of Account; for each ton from 30,001 to 70,000,300 Units of Account; and for each ton in excess of 70,000 tons, 200 Units of Account. 2. Where the amount calculated in accordance with paragraph l(a) is insufficient to pay the claims mentioned therein in full, the amount calculated in accordance with paragraph l(b) shall be available for payment of the unpaid balance of claims under paragraph l(a) and such unpaid balance shall rank rateably with claims mentioned under paragraph I (b). 4. The limits of liability for any salvor not operating from any ship or for any salvor operating solely on the ship to, or in respect of which he is rendering salvage services, shall be calculated according to a tonnage of 1,500 tons. ARTICLE 7 The limit for passenger claims 1. In respect of claims arising on any distinct occasion for loss of life or personal injury to passengers of a ship, the limit of liability of the shipowner thereof shall be an amount of 175,000 Units of Account multiplied by the number of passengers which the ship is authorised to carry according to the ship's certificate. 2. For the purpose of this Article "claims for loss of life or personal injury to passengers of a ship" shall mean any such claims brought by or on behalf of any person carried in that ship — (a) under a contract of passenger carriage; or (b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods. MERCHANT SHIPPING AMENDMENT ACT 2004 58 ARTICLE 8 Unit of Account The Unit of Account referred to in Articles 6 and 7 is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in Articles 6 and 7 shall be converted into the national currency of the State in which limitation is sought, according to the value of that currency at the date the limitation fund shall have been constituted, payment is made, or security is given which under the law of that State is equivalent to such payment. ARTICLE 9 Aggregation of claims 1. The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion — (a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose act, neglect or default he or they are responsible; or (b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or (c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to, or in respect of which, the salvage services are rendered and any person for whose act, neglect or default he or they are responsible. 2. The limits of liability determined in accordance with Article 7 shall apply to the aggregate of all claims subject thereto which may arise on any distinct occasion against the person or persons mentioned in paragraph 2 of Article 1 in respect of the ship referred to in Article 7 and any person for whose act, neglect or default he or they are responsible. MERCHANT SHIPPING AMENDMENT ACT 2004 59 ARTICLE 10 Limitation of liability without constitution of a limitation fund 1. Limitation of liability may be invoked notwithstanding that a limitation fund as mentioned in Article 11 has not been constituted. 2. If limitation of liability is invoked without the constitution of a limitation fund, the provisions of Article 12 shall apply correspondingly. 3. Questions of procedure arising under the rules of this Article shall be decided in accordance with the national law of the State Party in which action is brought. CHAPTER III. THE LIMITATION FUND ARTICLE 11 Constitution of the Fund 1. Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked. 2. A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority. 3. A fund constituted by one of the persons mentioned in paragraph 1 (a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1 (a), (b) or (c) or paragraph 2, respectively. MERCHANT SHIPPING AMENDMENT ACT 2004 60 ARTICLE 12 Distribution of the fund 1 Subject to the provisions of paragraphs 1 and 2 of Article 6 and of Article 7, the fund shall be distributed among the claimants in proportion to their established claims against the fund. 2. If, before the fund is distributed, the person liable, or his insurer, has settled a claim against the fund such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention. 3. The right of subrogation provided for in paragraph 2 may also be exercised by persons other than those therein mentioned in respect of any amount of compensation which they may have paid, but only to the extent that such subrogation is permitted under the applicable national law. 4. Where the person liable or any other person establishes that he may be compelled to pay, at a later date, in whole or in part any such amount of compensation with regard to which such person would have enjoyed a right of subrogation pursuant to paragraphs 2 and 3 had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund. ARTICLE 13 Bar to other actions 1. Where a limitation fund has been constituted in accordance with Article 11 any person having made a claim against the fund shall be barred from exercising any right in respect of such a claim against any other assets of a person by or on behalf of whom the fund has been constituted. 2. After a limitation fund has been constituted in accordance with Article 11 any ship or other property, belonging to a person on behalf of whom the fund has been constituted, which has been arrested or attached within the jurisdiction of a State Party for a claim which may be raised against the fund, or any security given, may be released by order of the Court or other competent MERCHANT SHIPPING AMENDMENT ACT 2004 61 authority of such State. However, such release shall always be ordered if the limitation fund has been constituted — (a) at the port where the occurrence took place, or, if it took place out of port, at the first port of call thereafter; or (b) at the port of disembarkation in respect of claims for loss of life or personal injury; or (c) at the port of discharge in respect of damage to cargo; or (d) in the State where the arrest is made. 3. The rules of paragraphs 1 and 2 shall apply only if the claimant may bring a claim against the limitation fund before the Court administering that fund and the fund is actually available and freely transferable in respect of that claim. ARTICLE 14 Governing law Subject to the provisions of this Chapter the rules relating to the constitution and distribution of a limitation fund, and all rules of procedure in connection therewith, shall be governed by the law of the State Party in which the fund is constituted. CHAPTER IV. SCOPE OF APPLICATION ARTICLE 15 1. This Convention shall apply whenever any person referred to in Article I seeks to limit his liability before the Court of a State Party or seeks to procure the release of a ship or other property or the discharge of any security given within the jurisdiction of any such State. 2. A State Party may regulate by specific provisions of national law the system of limitation of liability to be applied to vessels which are — (a) according to the law of that State, ships intended for navigation on inland waterways; (b) ships of less than 300 tons. A State Party which makes use of the option provided for in this paragraph shall inform the depositary of the limits of liability adopted in its national legislation or of the fact that there are none. MERCHANT SHIPPING AMENDMENT ACT 2004 62 3bis Notwithstanding the limit of liability prescribed in paragraph 1 of article 7, a State Party may regulate by specific provisions of national law the system of liability to be applied to claims for loss of life or personal injury to passengers of a ship, provided that the limit of liability is not lower than that prescribed in paragraph 1 of article 7. A State Party which makes use of the option provided for in this paragraph shall inform the Secretary-General of the limits of liability adopted or of the fact that there are none. ARTICLE 18 Reservations 1 Any State may, at the time of signature, ratification, acceptance, approval or accession, or at any time thereafter, reserve the right — (a) to exclude the application of article 2, paragraphs 1(d) and (e); (b) to exclude claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any amendment or Protocol thereto. No other reservations shall be admissible to the substantive provisions of this Convention. PART II PROVISIONS HAVING EFFECT IN CONNECTION WITH CONVENTION Interpretation 1. In this Part of this Schedule any reference to a numbered article is a reference to the article of the Convention which is so numbered. Right to limit liability 2. Subject to paragraph 5, the right to limit liability under the Convention shall apply in relation to any ship whether seagoing or not, and the definition of "shipowner" in paragraph 2 of article 1 shall be construed accordingly. MERCHANT SHIPPING AMENDMENT ACT 2004 63 Claims subject to limitation 3. (1) Paragraph 1(d) of article 2 shall not apply unless provision has been made by an order of the Minister for the setting up and management of a fund to be used for the making to a harbour authority of payments needed to compensate it for the reduction, in consequence of the said paragraph 1(d), of amounts recoverable by it in claims of the kind there mentioned, and to be maintained by contributions from such authority raised and collected by it in respect of vessels in like manner as other sums so raised by it. (2) Any order under subparagraph (1) may contain such incidental and supplemental provisions as appear to the Minister to be necessary or expedient. Claims excluded from limitation 4. (1) Claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996, or any amendment of or Protocol to that Convention, which arise from occurrences which take place after the coming into force of section 178A of this Act shall be excluded from the Convention. (2) The claims excluded from the Convention by paragraph (b) of article 3 are claims in respect of any liability incurred under section 151 of this Act. The general limits 5. (1) In the application of article 6 to a ship with a tonnage less than 300 tons that article shall have effect as if — (a) paragraph 1(a)(i) referred to 1,000,000 Units of Account; and (b) paragraph 1(b)(i) referred to 500,000 Units of Account. (2) For the purposes of article 6 and this paragraph a ship's tonnage shall be its gross tonnage calculated in such manner as may be prescribed by an order made by the Minister. (3) Any order under this paragraph shall, so far as appears to the Minister to be practicable give effect to the regulations in Annex I of the International Convention on Tonnage Measurement of Ships 1969. MERCHANT SHIPPING AMENDMENT ACT 2004 64 Limit for passenger claims 6. (1) Article 7 shall not apply in respect of any seagoing ship; and shall have effect in respect of any ship which is not seagoing as if, in paragraph 1 of that article — (a) after "thereof" there were inserted "in respect of each passenger,"; (b) the words from "multiplied" onwards were omitted. (2) In paragraph 2 of article 7 the reference to claims brought on behalf of a person includes a reference to any claim in respect of the death of a person under the Fatal Injuries (Action for Damages) Act 1949. Units of Account 7. (1) For the purpose of converting the amounts mentioned in articles 6 and 7 from special drawing rights into United States dollars one special drawing right shall be treated as equal to such a sum in United States dollars as the International Monetary Fund have fixed as being the equivalent of one special drawing right for — (a) the relevant date under paragraph 1 of article 8; or (b) if no sum has been so fixed for that date, the last preceding date for which a sum has been so fixed. (2) A certificate given by or on behalf of the Minister responsible for finance stating — (a) that a particular sum in United States dollars has been fixed as mentioned in subparagraph (1) for a particular date; or (b) that no sum has been so fixed for that date and that a particular sum in United States dollars has been so fixed for a date which is the last preceding date for which a sum has been so fixed, shall be conclusive evidence of those matters for the purposes of those articles; and a document purporting to be such a certificate shall, in any proceedings, be received in evidence and, unless the contrary is proved, be deemed to be such a certificate. MERCHANT SHIPPING AMENDMENT ACT 2004 65 Constitution of fund 8. (1) The Minister may, with the concurrence of the Minister responsible for finance, by order prescribe the rate of interest to be applied for the purposes of paragraph 1 of article 11. (2) Where a fund is constituted with the court in accordance with article 11 for the payment of claims arising out of any occurrence, the court may stay any proceedings relating to any claim arising out of that occurrence which are pending against the person by whom the fund has been constituted. Distribution of fund 9. No lien or other right in respect of any ship or property shall affect the proportions in which under article 12 the fund is distributed among several claimants. Bar to other actions 10. Where the release of a ship or other property is ordered under paragraph 2 of article 13 the person on whose application it is ordered to be released shall be deemed to have submitted to the jurisdiction of the court to adjudicate on the claim for which the ship or property was arrested or attached. Meaning of "court" 11. References in the Convention and the preceding provisions of this Part of this Schedule to the court are references to the Supreme Court. Meaning of "ship" 12. References in the Convention and in the preceding provisions of this Part of this Schedule to a ship include references to any structure (whether completed or in course of completion) launched and intended for use in navigation as a ship or part of a ship. Meaning of "State Party" 13. An order made for the purpose of this paragraph and declaring that any State specified in the order is a party to the Convention as amended by the 1996 Protocol shall, subject to the provisions of any subsequent order made for those purposes, be conclusive evidence that the State is a party to the Convention as amended by the 1996 Protocol." MERCHANT SHIPPING AMENDMENT ACT 2004 66