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PART VI continued CHAPTER II continued
(1) Proceedings for an offence under this Chapter may, in England and Wales be brought only—
(a) by or with the consent of the Attorney General, or
(b) if the offence is one to which subsection (4) below applies, by the harbour authority, or
(c) unless the offence is one mentioned in subsection (4)(b) or (c) below, by the Secretary of State or a person authorised by any general or special direction of the Secretary of State.
(2) Subject to subsection (3) below, proceedings for an offence under this Chapter may, in Northern Ireland, be brought only—
(a) by or with the consent of the Attorney General for Northern Ireland,
(b) if the offence is one to which subsection (4) below applies, by a harbour authority, or
(c) unless the offence is one mentioned in subsection (4)(b) or (c) below, by the Secretary of State or a person authorised by any general or special direction of the Secretary of State.
(3) Subsection (2) above shall have effect in relation to proceedings for an offence under section 131 relating to the discharge of oil or a mixture containing oil from a ship in a harbour in Northern Ireland as if the references in paragraph (c) to the Secretary of State were references to the Secretary of State or the Department of the Environment for Northern Ireland.
(4) This subsection applies to the following offences—
(a) any offence under section 131 which is alleged to have been committed by the discharge of oil, or a mixture containing oil, into the waters of a harbour in the United Kingdom;
(b) any offence in relation to a harbour in the United Kingdom under section 135 or 136; and
(c) any offence under section 142 relating to the keeping of records of the transfer of oil within such a harbour.
(5) The preceding provisions of this section shall apply in relation to any part of a dockyard port within the meaning of the [1865 c. 125.] Dockyard Ports Regulation Act 1865 as follows—
(a) if that part is comprised in a harbour in the United Kingdom, the reference to the harbour authority shall be construed as including a reference to the Queen’s harbour master for the port;
(b) if that part is not comprised in a harbour in the United Kingdom, the references to such a harbour shall be construed as references to such a dockyard port and the reference to the harbour authority as a reference to the Queen’s harbour master for the port.
(6) Any document required or authorised, by virtue of any statutory provision, to be served on a foreign company for the purposes of the institution of, or otherwise in connection with, proceedings for an offence under section 131 alleged to have been committed by the company as the owner of the ship shall be treated as duly served on that company if the document is served on the master of the ship.
In this subsection “foreign company” means a company or body which is not one to which any of sections 695 and 725 of the [1985 c. 6.] Companies Act 1985 and Articles 645 and 673 of the [S.I. 1986/1032 (NI 6).] Companies (Northern Ireland) Order 1986 applies so as to authorise the service of the document in question under any of those provisions.
(7) Any person authorised to serve any document for the purposes of the institution of, or otherwise in connection with, proceedings for an offence under this Chapter shall, for that purpose, have the right to go on board the ship in question.
(1) Where a harbour master has reason to believe that the master or owner of a ship has committed an offence under section 131 by the discharge from the ship of oil, or a mixture containing oil, into the waters of the harbour, the harbour master may detain the ship.
(2) Section 284, in its application to the detention of a ship under this section, shall have effect with the omission of subsections (1), (6) and (7) and as if—
(a) in subsection (2), the reference to competent authority were a reference to the harbour authority; and
(b) in subsection (4), the persons in relation to whom that subsection applies were the harbour master or any person acting on his behalf.
(3) Where a harbour master detains a ship other than a United Kingdom ship under this section he shall immediately notify the Secretary of State, who shall then inform the consul or diplomatic representative of the State whose flag the ship is entitled to fly or the appropriate maritime authorities of that State.
In this subsection “United Kingdom ship” has the same meaning as in section 85.
(4) A harbour master who detains a ship under this section shall immediately release the ship—
(a) if no proceedings for the offence are instituted within the period of seven days beginning with the day on which the ship is detained;
(b) if proceedings for the offence, having been instituted within that period, are concluded without the master or owner being convicted;
(c) if either—
(i) the sum of £55,000 is paid to the harbour authority by way of security, or
(ii) security which, in the opinion of the harbour authority, is satisfactory and is for an amount not less than £55,000 is given to the harbour authority,
by or on behalf of the master or owner; or
(d) where the master or owner is convicted of the offence, if any costs or expenses ordered to be paid by him, and any fine imposed on him, have been paid.
(5) The harbour authority shall repay any sum paid in pursuance of subsection (4)(c) above or release any security so given—
(a) if no proceedings for the offence are instituted within the period of seven days beginning with the day on which the sum is paid; or
(b) if proceedings for the offence, having been instituted within that period, are concluded without the master or owner being convicted.
(6) Where a sum has been paid, or security has been given, by any person in pursuance of subsection (4)(c) above and the master or owner is convicted of the offence, the sum so paid or the amount made available under the security shall be applied as follows—
(a) first in payment of any costs or expenses ordered by the court to be paid by the master or owner; and
(b) next in payment of any fine imposed by the court;
and any balance shall be repaid to the first-mentioned person.
(7) Any reference in this section to a harbour master or a harbour authority shall, where the harbour in question consists of or includes the whole or any part of a dockyard port within the meaning of the [1865 c. 125.] Dockyard Ports Regulation Act 1865, be construed as including a reference to the Queen’s harbour master for the port.
(8) This section does not apply in relation to a ship of Her Majesty’s navy or any Government ship.
(1) This section has effect for the interpretation of the references in section 144 to the institution of proceedings or their conclusion without the master or owner of a ship being convicted of an offence under section 131.
(2) For the purposes of section 144 in its application to England and Wales—
(a) proceedings for an offence under section 131 are instituted—
(i) when a justice of the peace issues a summons or warrant under section 1 of the [1980 c. 43.] Magistrates' Courts Act 1980 in respect of the offence;
(ii) when a person is charged with the offence after being taken into custody without a warrant;
(iii) when a bill of indictment is preferred under section 2(2)(b) of the [1933 c. 36.] Administration of Justice (Miscellaneous Provisions) Act 1933; and
(b) proceedings for the offence are concluded without the master or owner being convicted on the occurrence of one of the following events—
(i) the discontinuance of the proceedings;
(ii) the acquittal of the master or owner;
(iii) the quashing of the master’s or owner’s conviction of the offence;
(iv) the grant of Her Majesty’s pardon in respect of the master’s or owner’s conviction of the offence.
(3) For the purposes of section 144 in its application to Northern Ireland—
(a) proceedings for an offence under section 131 are instituted—
(i) when a justice of the peace issues a summons or warrant under Article 20 of the [S.I. 1981/1675 (NI 26).] Magistrates' Courts (Northern Ireland) Order 1981;
(ii) when a person is charged with the offence after being taken into custody without a warrant;
(iii) when an indictment is presented under section 2(2)(c), (e) or (f) of the [1969 c. 15 (N.I.).] Grand Jury (Abolition) Act (Northern Ireland) 1969; and
(b) proceedings for an offence under section 131 are concluded without the master or owner being convicted on the occurrence of one of the following events—
(i) the discontinuance of the proceedings;
(ii) the acquittal of the master or owner;
(iii) the quashing of the master’s or owner’s conviction of the offence;
(iv) the grant of Her Majesty’s pardon in respect of the master’s or owner’s conviction of the offence.
(4) Where the application of subsection (2)(a) or (3)(a) above would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.
(5) For the purposes of section 144 in its application to Scotland—
(a) proceedings for an offence under section 131 are instituted—
(i) on the granting by the sheriff of a warrant in respect of the offence on presentation of a petition under section 12 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975;
(ii) when, in the absence of a warrant or citation, the master or owner is first brought before a court competent to deal with the case;
(iii) when, in a case where he is liberated upon a written undertaking in terms of section 18(2)(a), 294(2)(a) or 295(1)(a) of the Criminal Procedure (Scotland) Act 1975, the master or owner appears at the specified time;
(iv) when, in a case mentioned in (iii) above where the master or owner fails to appear at the specified court at the specified time, the court grants warrant for his apprehension;
(v) when summary proceedings are commenced in terms of section 331(3) of the Criminal Procedure (Scotland) Act 1975;
(b) proceedings for an offence under section 131 are concluded without the master or owner being convicted on the occurrence of one of the following events—
(i) the court makes a finding of not guilty or not proven against the master or owner in respect of the offence;
(ii) the proceedings are expressly abandoned (other than pro loco et tempore) by the prosecutor or are deserted simpliciter;
(iii) the conviction is quashed;
(iv) the accused receives Her Majesty’s pardon in respect of the conviction.
(1) Where a fine imposed by a court in proceedings against the owner or master of a ship for an offence under this Chapter is not paid, or any costs or expenses ordered to be paid by him are not paid, at the time ordered by the court, the court shall, in addition to any other powers of enforcing payment, have power—
(a) except in Scotland, to direct the amount remaining unpaid to be levied by distress,
(b) in Scotland, to grant warrant authorising the arrestment and sale,
of the ship and its equipment.
(2) Where a person is convicted of an offence under section 131, and the court imposes a fine in respect of the offence, then, if it appears to the court that any person has incurred, or will incur, expenses in removing any pollution, or making good any damage, which is attributable to the offence, the court may order the whole or part of the fine to be paid to that person for or towards defraying those expenses.
(1) Her Majesty may by Order in Council empower such persons as may be designated by or under the Order to go on board any Convention ship while the ship is within a harbour in the United Kingdom, and to require production of any oil record book required to be carried in accordance with the Convention.
(2) An Order in Council under this section may, for the purposes of the Order, and with any necessary modifications, apply any of the provisions of this Chapter relating to the production and inspection of oil record books and the taking of copies of entries therein, and to the admissibility in evidence of such oil record books and copies, including any penal provisions of this Chapter in so far as they relate to those matters, and may also apply section 259.
(3) Her Majesty, if satisfied that the government of any country has accepted, or denounced, the Convention, or that the Convention extends, or has ceased to extend, to any territory, may by Order in Council make a declaration to that effect.
(4) In this section—
“the Convention” means any Convention accepted by Her Majesty’s Government in the United Kingdom in so far as it relates to the prevention of pollution of the sea by oil; and
“Convention ship” means a ship registered in—
(a) a country the government of which has been declared by an Order in Council under subsection (3) above to have accepted the Convention, and has not been so declared to have denounced it; or
(b) a territory to which it has been so declared that the Convention extends, not being a territory to which it has been so declared that the Convention has ceased to extend.
The Secretary of State may exempt from any of the provisions of this Chapter or of any regulations made thereunder, either absolutely or subject to such conditions as he thinks fit—
(a) any ship or classes of ships;
(b) any discharge of, or of a mixture containing, oil.
(1) This Chapter does not apply to ships of Her Majesty’s navy, nor to Government ships in the service of the Secretary of State while employed for the purposes of Her Majesty’s navy.
(2) Subject to subsection (1) above and to section 141(4) and section 144(8)—
(a) provisions of this Chapter which are expressed to apply only to United Kingdom ships apply to Government ships registered in the United Kingdom and also to Government ships not so registered but held for the purposes of Her Majesty’s Government in the United Kingdom;
(b) provisions of this Chapter which are expressed to apply to ships generally apply to Government ships.
(1) The Secretary of State shall, as soon as possible after the end of each calendar year, make a report on the exercise and performance of his functions under this Chapter during that year.
(2) Every such report shall include such observations as he may think fit to make on the operation during that year of this Chapter and of any Convention accepted by Her Majesty’s Government in the United Kingdom in so far as it relates to the prevention of pollution of the sea by oil.
(3) The Secretary of State shall lay a copy of every such report before each House of Parliament.
(1) In this Chapter—
“harbour authority” means a person or body of persons empowered by an enactment to make charges in respect of ships entering a harbour in the United Kingdom or using facilities therein;
“harbour in the United Kingdom” means a port, estuary, haven, dock or other place the waters of which are within United Kingdom national waters and in respect of entry into or the use of which by ships a person or body of persons is empowered by an enactment (including a local enactment) to make any charges other than charges in respect of navigational aids or pilotage;
“harbour master” includes a dock master or pier master, and any person specially appointed by a harbour authority for the purpose of enforcing the provisions of this Chapter in relation to the harbour;
“local enactment” means a local or private Act, or an order confirmed by Parliament or brought into operation in accordance with special Parliamentary procedure;
“oil” means oil of any description and includes spirit produced from oil of any description, and also includes coal tar;
“oil residues” means any waste consisting of, or arising from, oil or a mixture containing oil;
“place on land” has the meaning given in section 131;
“transfer”, in relation to oil, means transfer in bulk.
(2) For the purposes of the definition of “harbour in the United Kingdom”“charges in respect of navigational aids” means general light dues, local light dues and any other charges payable in respect of lighthouses, buoys or beacons.
(3) Any reference in any provision of this Chapter to a mixture containing oil shall be construed as a reference to any mixture of oil (or, as the case may be, of oil of a description referred to in that provision) with water or with any other substance.
(4) Any reference in this Chapter, other than in section 136, to the discharge of oil or a mixture containing oil, or to its being discharged, from a ship, place or thing, except where the reference is to its being discharged for a specific purpose, includes a reference to the escape of oil or mixture, or (as the case may be) to its escaping, from that ship, place or thing.
(5) For the purposes of any provision of this Chapter relating to the discharge of oil or a mixture containing oil from a ship, any floating craft (other than a ship) which is attached to a ship shall be treated as part of the ship.
(6) Any power conferred by section 259 in its application to this Chapter to test any equipment on board a ship shall be construed as including a power to require persons on board the ship to carry out such work as may be requisite for the purpose of testing the equipment; and any provision of that section as to submitting equipment for testing shall be construed accordingly.
(7) Subject to section 18 of the [1978 c. 30.] Interpretation Act 1978 (offence under two or more laws) nothing in this Chapter shall—
(a) affect any restriction imposed by or under any other enactment, whether contained in a public general Act or a local or private Act; or
(b) derogate from any right of action or other remedy (whether civil or criminal) in proceedings instituted otherwise than under this Chapter.
(1) In this Chapter—
“the Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage 1992;
“Liability Convention country” means a country in respect of which the Liability Convention is in force; and
“Liability Convention State” means a State which is a party to the Convention.
(2) If Her Majesty by Order in Council declares that any State specified in the Order is a party to the Liability Convention in respect of any country so specified the Order shall, while in force, be conclusive evidence that that State is a party to the Liability Convention in respect of that country.
(1) Where, as a result of any occurrence, any oil is discharged or escapes from a ship to which this section applies, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable—
(a) for any damage caused outside the ship in the territory of the United Kingdom by contamination resulting from the discharge or escape; and
(b) for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the territory of the United Kingdom by contamination resulting from the discharge or escape; and
(c) for any damage caused in the territory of the United Kingdom by any measures so taken.
(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship to which this section applies by the contamination that might result if there were a discharge or escape of oil from the ship, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable—
(a) for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the territory of the United Kingdom; and
(b) for any damage caused outside the ship in the territory of the United Kingdom by any measures so taken;
and in this Chapter any such threat is referred to as a relevant threat of contamination.
(3) Subject to subsection (4) below, this section applies to any ship constructed or adapted for carrying oil in bulk as cargo.
(4) Where any ship so constructed or adapted is capable of carrying other cargoes besides oil, this section shall apply to any such ship—
(a) while it is carrying oil in bulk as cargo; and
(b) unless it is proved that no residues from the carriage of any such oil remain in the ship, while it is on any voyage following the carriage of any such oil,
but not otherwise.
(5) Where a person incurs a liability under subsection (1) or (2) above he shall also be liable for any damage or cost for which he would be liable under that subsection if the references in it to the territory of the United Kingdom included the territory of any other Liability Convention country.
(6) Where—
(a) as a result of any occurrence, a liability is incurred under this section by the owner of each of two or more ships, but
(b) the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,
each of the owners shall be liable, jointly with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.
(7) For the purposes of this Chapter—
(a) references to a discharge or escape of oil from a ship are references to such a discharge or escape wherever it may occur, and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank;
(b) where more than one discharge or escape results from the same occurrence or from a series of occurrences having the same origin, they shall be treated as one, but any measures taken after the first of them shall be deemed to have been taken after the discharge or escape; and
(c) where a relevant threat of contamination results from a series of occurrences having the same origin, they shall be treated as a single occurrence.
(8) The [1945 c. 8] Law Reform (Contributory Negligence) Act 1945 and, in Northern Ireland, the [1948 c. 23 (N.I.).] Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948 shall apply in relation to any damage or cost for which a person is liable under this section, but which is not due to his fault, as if it were due to his fault.
(1) Where, as a result of any occurrence, any oil is discharged or escapes from a ship other than a ship to which section 153 applies, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable—
(a) for any damage caused outside the ship in the territory of the United Kingdom by contamination resulting from the discharge or escape; and
(b) for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the territory of the United Kingdom by contamination resulting from the discharge or escape; and
(c) for any damage so caused in the territory of the United Kingdom by any measures so taken.
(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship other than a ship to which section 153 applies by the contamination which might result if there were a discharge or escape of oil from the ship, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable—
(a) for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the territory of the United Kingdom; and
(b) for any damage caused outside the ship in the territory of the United Kingdom by any measures so taken;
and in the subsequent provisions of this Chapter any such threat is referred to as a relevant threat of contamination.
(3) Where—
(a) as a result of any occurrence, a liability is incurred under this section by the owner of each of two or more ships, but
(b) the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,
each of the owners shall be liable, jointly with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.
(4) The [1945 c. 28.] Law Reform (Contributory Negligence) Act 1945 and, in Northern Ireland, the [1948 c. 23 (N.I.).] Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948 shall apply in relation to any damage or cost for which a person is liable under this section, but which is not due to his fault, as if it were due to his fault.
(5) In this section “ship” includes a vessel which is not seagoing.
No liability shall be incurred by the owner of a ship under section 153 or 154 by reason of any discharge or escape of oil from the ship, or by reason of any relevant threat of contamination, if he proves that the discharge or escape, or (as the case may be) the threat of contamination—
(a) resulted from an act of war, hostilities, civil war, insurrection or an exceptional, inevitable and irresistible natural phenomenon; or
(b) was due wholly to anything done or omitted to be done by another person, not being a servant or agent of the owner, with intent to do damage; or
(c) was due wholly to the negligence or wrongful act of a government or other authority in exercising its function of maintaining lights or other navigational aids for the maintenance of which it was responsible.
(1) Where, as a result of any occurrence—
(a) any oil is discharged or escapes from a ship (whether one to which section 153 or one to which section 154 applies), or
(b) there arises a relevant threat of contamination,
then, whether or not the owner of the ship in question incurs a liability under section 153 or 154—
(i) he shall not be liable otherwise than under that section for any such damage or cost as is mentioned in it, and
(ii) no person to whom this paragraph applies shall be liable for any such damage or cost unless it resulted from anything done or omitted to be done by him either with intent to cause any such damage or cost or recklessly and in the knowledge that any such damage or cost would probably result.
(2) Subsection (1)(ii) above applies to—
(a) any servant or agent of the owner of the ship;
(b) any person not falling within paragraph (a) above but employed or engaged in any capacity on board the ship or to perform any service for the ship;
(c) any charterer of the ship (however described and including a bareboat charterer), and any manager or operator of the ship;
(d) any person performing salvage operations with the consent of the owner of the ship or on the instructions of a competent public authority;
(e) any person taking any such measures as are mentioned in subsection (1)(b) or (2)(a) of section 153 or 154;
(f) any servant or agent of a person falling within paragraph (c), (d) or (e) above.
(3) The liability of the owner of a ship under section 153 or 154 for any impairment of the environment shall be taken to be a liability only in respect of—
(a) any resulting loss of profits, and
(b) the cost of any reasonable measures of reinstatement actually taken or to be taken.
(1) Where, as a result of any occurrence, the owner of a ship incurs liability under section 153 by reason of a discharge or escape or by reason of any relevant threat of contamination, then (subject to subsection (3) below)—
(a) he may limit that liability in accordance with the provisions of this Chapter, and
(b) if he does so, his liability (being the aggregate of his liabilities under section 153 resulting from the occurrence) shall not exceed the relevant amount.
(2) In subsection (1) above, “the relevant amount” means—
(a) in relation to a ship not exceeding 5,000 tons, three million special drawing rights;
(b) in relation to a ship exceeding 5,000 tons, three million special drawing rights together with an additional 420 special drawing rights for each ton of its tonnage in excess of 5,000 tons up to a maximum amount of 59.7 million special drawing rights;
but the Secretary of State may by order make such amendments of paragraphs (a) and (b) above as appear to him to be appropriate for the purpose of giving effect to the entry into force of any amendment of the limits of liability laid down in paragraph 1 of Article V of the Liability Convention.
(3) Subsection (1) above shall not apply in a case where it is proved that the discharge or escape, or (as the case may be) the relevant threat of contamination, resulted from anything done or omitted to be done by the owner either with intent to cause any such damage or cost as is mentioned in section 153 or recklessly and in the knowledge that any such damage or cost would probably result.
(4) For the purposes of this section a ship’s tonnage shall be its gross tonnage calculated in such manner as may be prescribed by an order made by the Secretary of State.
(5) Any such order shall, so far as it appears to the Secretary of State to be practicable, give effect to the regulations in Annex 1 of the International Convention on Tonnage Measurement of Ships 1969.
(1) Where the owner of a ship has or is alleged to have incurred a liability under section 153 he may apply to the court for the limitation of that liability to an amount determined in accordance with section 157.
(2) If on such an application the court finds that the applicant has incurred such a liability and is entitled to limit it, the court shall, after determining the limit of the liability and directing payment into court of the amount of that limit—
(a) determine the amounts that would, apart from the limit, be due in respect of the liability to the several persons making claims in the proceedings; and
(b) direct the distribution of the amount paid into court (or, as the case may be, so much of it as does not exceed the liability) among those persons in proportion to their claims, subject to the following provisions of this section.
(3) A payment into court of the amount of a limit determined in pursuance of this section shall be made in sterling; and
(a) for the purpose of converting such an amount from special drawing rights into sterling one special drawing right shall be treated as equal to such a sum in sterling as the International Monetary Fund have fixed as being the equivalent of one special drawing right for—
(i) the day on which the determination is made; or
(ii) if no sum has been so fixed for that day, the last day before that day for which a sum has been so fixed;
(b) a certificate given by or on behalf of the Treasury stating—
(i) that a particular sum in sterling has been so fixed for the day on which the determination was made, or
(ii) that no sum has been so fixed for that day and that a particular sum in sterling has been so fixed for a day which is the last day for which a sum has been so fixed before the day on which the determination was made,
shall be conclusive evidence of those matters for the purposes of this Chapter;
(c) 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 Act 1995