PART II

Civil Liability for Pollution Damage

7. —(1) The following provisions shall, subject to section 8 , have effect in relation to pollution damage in the State which is caused by a ship carrying oil in bulk as cargo, whether such ship is within or without the State, that is to say—

(a) save as is otherwise provided by this Act, the owner of a ship at the time of the incident, or, where the incident consists of a series of occurrences, at the time of the first of the occurrences, which caused pollution damage, shall be liable for such damage;

(b) in any case where pollution damage results from the discharge of oil from two or more ships, the owner of each ship concerned shall, save as is otherwise provided by this Act, be jointly and severally liable for all such damage in so far as such damage is not reasonably severable;

(c) an owner of a ship shall not incur any liability for pollution damage otherwise than under this section;

(d) the servant or agent of the owner of a ship shall not be liable for pollution damage caused by that ship.

(2) Nothing in this Act shall operate so as to prejudice any right of action the owner of a ship may have in respect of an incident against any third party.

8. —The owner of a ship which has caused pollution damage shall not be liable for such damage if he proves that the discharge of oil which caused the damage—

(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

(b) was due wholly to anything done, or left undone, by any other person (other than a servant or agent of such owner) with intent to do damage; or

(c) was due wholly to the negligence or wrongful act of any government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.

9. —Where pollution damage is caused in the State and in one or more Convention Countries by a ship carrying oil in bulk as cargo, whether such ship is within or without the State, and the owner of such ship is liable for such damage pursuant to section 7 , and where the owner of such ship is liable for such damage under the law of any other Convention Country concerned, the liability for such damage shall be regarded, for the purposes of this Act and for the purposes of any legal proceedings under this Act in relation to such damage, as having been incurred in the State.

10. —Where the owner of a ship is liable, pursuant to section 7 , for damage caused by a discharge of oil which occurred without his actual fault or privity, the following provisions shall apply—

(a) section 503 of the Merchant Shipping Act, 1894, shall not apply in relation to any such liability;

(b) the owner concerned may limit his liability in accordance with this Act;

(c) where the owner concerned limits his liability in accordance with this Act, his liability for any one discharge shall not exceed fourteen million units of account, or one hundred and thirty-three units of account per ton for each ton of the ship's tonnage, whichever is the lesser;

(d) where a discharge of oil causes pollution damage both in the State and in the territory of any Convention Country, and the owner of the ship from which the oil was discharged has limited his liability in accordance with this Act, the limitation on the liability of the owner shall apply to the aggregate of his liability in the State and in any Convention Country concerned;

(e) where, in accordance with the law of a Convention Country, an owner has limited his liability, the court, tribunal or administrative authority in that Convention Country that has the jurisdiction or power to determine liability for pollution damage and to award compensation therefor shall be exclusively competent to determine all matters relating to the appointment and distribution of any monies lodged with the court, tribunal or administrative authority, as the case may be, in respect of the owner's liability.

11. —For the purposes of calculating the liability of the owner of a ship by reference to the tonnage of that ship, the tonnage shall be ascertained in the following manner:

(a) if the ship is registered in the State, or is a ship to which a direction under section 95 of the Mercantile Marine Act, 1955 , applies, the tonnage of that ship shall be reckoned to be its nett tonnage increased, in any case where a deduction has been made for engine room space in calculating that tonnage, by the amount of that deduction;

(b) if the ship is not so registered, or if no such direction applies to her, and it is possible to ascertain the registered tonnage of the ship as if it were a ship registered in the State, the tonnage of the ship shall be calculated, with any necessary modifications, in accordance with paragraph (a);

(c) if the ship is not so registered, or if no such direction applies to her, and she is a ship of a class or description in relation to which no provision is for the time being made by tonnage Regulations made under the said Mercantile Marine Act, the tonnage of the ship shall be reckoned to be forty per cent. of the weight (expressed in tons of two thousand two hundred and forty pounds) of oil which the ship is capable of carrying;

(d) if the tonnage of the ship cannot be calculated in accordance with the preceding paragraphs of this section, an inspector shall, if so directed by a Court, certify the tonnage which, in his opinion and having regard to the evidence specified in the direction, would be the tonnage of the ship if such tonnage were calculated in accordance with the preceding paragraphs of this section, and the tonnage as certified in the certificate of the inspector shall be reckoned to be the tonnage of that ship.

12. —(1) Where the owner of a ship has, or is alleged to have, incurred liability for pollution damage pursuant to this Act, he may apply to the Court for an order limiting his liability for such damage to an amount calculated in accordance with the provisions of section 10 .

(2) If, on the hearing of an application under subsection (1), the Court finds that the applicant—

(a) has incurred liability for pollution damage,

and

(b) is entitled to limit his liability in accordance with this Act,

the Court, after determining the limit of the liability of such owner and after ordering the payment into court of any amount so determined, shall—

(i) determine the amounts (if any) that would, apart from the limitation of liability, be due in respect of such owner's liability to any person making a claim against such owner in respect of pollution damage, and

(ii) direct, subject to the subsequent provisions of this section, that the amount paid into court be distributed in proportion to their claim amongst such persons as the Court determines as having a claim against such owner in respect of pollution damage.

(3) Whenever the Court, on an application under subsection (1), orders the payment into court of any amount, the applicant shall comply with the order.

(4) A payment into Court of the amount of a limit of liability determined under this section shall be made in the currency of the State, and—

(a) for the purpose of converting such an amount from special drawing rights into the currency of the State one special drawing right shall be treated as equal to such a sum in the currency of the State 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 Central Bank of Ireland stating that—

(i) a particular sum in the currency of the State has been so fixed for the day on which the determination was made, or

(ii) no sum has been so fixed for that day and that a particular sum in the currency of the State has been so fixed for a day which is the last day for which a sum had been so fixed before the day on which the determination was made,

shall be evidence until the contrary is proved of those matters for the purposes of this Act;

(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.

(5) A claim shall not be admitted in any application under this section unless such claim is made within three years after the date on which the pollution damage occurred and not later than six years after the date of the incident which occasioned the damage:

Provided that, where the incident occasioning the damage consists of a series of occurrences, a claim shall not be admitted in any application under this section unless such claim is made within six years from the date of the first of those occurrences.

(6) Where any sum has been paid in, or towards, satisfaction of a claim in respect of pollution damage, or costs, to which the liability of the owner of a ship extends and such sum has been paid by—

(a) the owner of the ship or any guarantor,

(b) any person who has, or is alleged to have, incurred a liability, otherwise than by virtue of the provisions of this Act, for such damage or costs, and who is entitled by virtue of the Merchant Shipping Acts, 1894 to 1983, to limit his liability,

the person who paid that sum shall, to the extent of that sum, stand in the same position in any distribution made by the Court under subsection (2) as the person to whom such sum has been paid would stand if he were a party to the proceedings.

(7) Any person who has—

(a) incurred any liability in relation to pollution damage, and

(b) taken any reasonable steps, or expended money, to minimise or prevent the pollution damage in respect of which he is liable,

shall stand in the same position in any distribution made by the Court under subsection (2) as if he had a claim in the proceedings equal to the extent of any expenditure he has incurred in seeking to minimise or prevent the damage.

(8) The Court may, if it thinks fit, postpone the distribution of such part of the money to be distributed by it under subsection (2) as it deems appropriate to meet any claim—

(a) which might subsequently be established before a court in a Convention Country, or

(b) by the owner of the ship, or by any other person, that he might, at some later date, be compelled to pay compensation in respect of pollution damage which, if he had paid such compensation before the Court made a distribution under subsection (2), would have entitled such owner or other person to claim relief under subsection (6).

13. —(1) Without prejudice to any power to detain a ship contained in any enactment, an inspector may stop or detain a ship in any harbour in the State or wherever such ship may be in the State, or a harbour-master may detain a ship in his harbour, if it appears to the inspector or, as the case may be, the harbour-master, that the owner of the ship has incurred a liability under section 7 for pollution damage caused by any ship which he owns.

(2) Where the Court has determined that a person, who has incurred a liability for pollution damage under section 7 , is entitled to limit his liability, and such person has paid into court a sum of not less than the amount determined by the Court to be the limit of his liability, then—

(a) the Court shall, on application by or on behalf of the owner, order the release of any ship detained under this section in respect of any liability for pollution damage, or, as the case may be, the release of any security given to prevent, or obtain release from, such arrest, and

(b) a judgment or decree in relation to any claim for damages for pollution damage shall not be enforced, except in so far as such judgment or decree relates to costs:

Provided that the sum so paid into court, or such part thereof as corresponds to any claim for damages for pollution damage, is available for distribution to the claimant, or would have been so available if the claimant had complied with the provisions of section 12 .

(3) If a ship which has been detained pursuant to this section leaves, or attempts to leave, any harbour, terminal installation, offshore terminal or any other place in the State otherwise than in accordance with the provisions of this Act, the owner and the master of the ship shall each be guilty of an offence and the ship may, without prejudice to subsection (1), be detained, or be further detained, by an inspector anywhere in the State, or by a harbour-master in his harbour.

14. —Where any person is liable under section 7 for pollution damage and, in relation to the same incident, is liable for pollution damage under the law of any other Convention Country, section 13 shall apply as if the references therein to sections 7 and 12 were a reference to the corresponding law of any other Convention Country concerned and the reference in the said section 13 to any sum paid into court were a reference to any sum secured under the corresponding law of such Convention Country.

15. —Where, as a result of a discharge of oil from a ship, the owner of the ship is liable under section 7 for pollution damage and any other person incurs a liability, otherwise than under that section, for such damage, then if—

(a) the owner of the ship has been found in any proceedings under section 12 to be entitled to limit his liability to a particular amount and has paid into court a sum of not less than that amount, and

(b) such other person is entitled to limit his liability in connection with the ship by virtue of the Merchant Shipping Acts, 1894 to 1983,

proceedings shall not be taken against such other person in respect of his liability and, if any such proceedings were commenced before such owner paid the amount determined to be the limit of his liability into court, no further step shall be taken in the proceedings except in relation to costs.

16. —(1) A ship registered in the State shall not carry in bulk a cargo of two thousand tonnes or more of oil unless there is in force in respect of the ship a contract of insurance, or other financial security, satisfying such requirements as may be prescribed.

(2) The Minister shall, on being satisfied by the owner of a ship that subsection (1) has been complied with, certify that the ship, in respect of such period as may be specified in the certificate, complies with the provisions of subsection (1).

(3) Subject to any exemption which may be granted by the Minister under section 44 , a ship (other than a ship registered in the State) shall not carry to or from a harbour, terminal installation or offshore terminal in the State a cargo of two thousand tonnes or more of oil in bulk unless—

(a) if the ship is registered in another Convention Country, there is carried on board the ship a certificate issued by or under the authority of the country in which the ship is registered showing that there is in force, in respect of the ship, a contract of insurance or other financial security which satisfies the requirements of the law of that country relating to the bulk carriage of oil, or

(b) if the ship is not registered in another Convention Country or the State, there is carried on board a certificate—

(i) issued by or under the authority of another Convention Country, or

(ii) which has been certified by the Minister that the ship satisfies such requirements as may be prescribed,

and showing that there is in force, in respect of the ship, a contract of insurance or other financial security which satisfies the law of that Convention Country concerned or the State, as the case may be, relating to the bulk carriage of oil.

(4) Any certificate required by this section in relation to the existence of a contract of insurance or other financial security in respect of a ship shall be carried on the ship and shall, on demand, be produced by the master of the ship to any inspector or harbourmaster.

(5) If a ship enters or leaves, or attempts to enter or leave, a harbour, or arrives at or leaves, or attempts to arrive at or leave, a terminal installation or offshore terminal in the State in contravention of this section, the owner and master of the ship shall each be guilty of an offence.

(6) If a ship fails to carry a certificate on board as required by this section or if the master of the ship fails to produce such certificate on demand by an inspector or a harbour-master, the master of the ship shall be guilty of an offence.

(7) If a ship attempts to leave a harbour, terminal installation or offshore terminal in the State in contravention of this section, the ship may be stopped and detained by an inspector or by the harbourmaster concerned.

(8) If a ship which has been detained by an inspector or, as the case may be, a harbour-master, pursuant to subsection (7) leaves or attempts to leave a harbour, terminal installation or offshore terminal otherwise than in accordance with the provisions of this Act, the master of the ship shall be guilty of an offence.

17. —(1) Where it is alleged that the owner of a ship is liable under section 7 for pollution damage as a result of any discharge of oil, and there is, at that time, in force in respect of that ship a contract of insurance or other security to which a certificate referred to in section 16 relates, proceedings to enforce a claim in respect of any damage caused by the discharge of oil may be brought against the guarantor.

(2) In any proceedings brought against a guarantor under this section, it shall be a defence, in addition to any defence affecting the liability of the owner, for the guarantor to establish that the discharge of oil in respect of which the proceedings are brought was due to the wilful misconduct of the owner of the ship.

(3) A guarantor may limit his liability under this section in like manner and to the same extent as an owner may limit his liability whether or not the discharge of oil in respect of which the proceedings are brought occurred without the actual fault or privity of the owner of the ship.

(4) Where both the owner of a ship and his guarantor each apply to the Court to limit his liability, any money paid into court in pursuance of either application shall be deemed to have been paid in also in pursuance of the other application.

18. —The provisions of section 503 (1) (d) of the Merchant Shipping Act, 1894, shall be deemed to apply to any liability for the cost of preventing or mitigating pollution damage which is not covered by this Act.