Federal Law on Civil Liability for Oil Pollution Damage

Ata Atun, Clelia Theodolou, Other Committee Members

 

 

 

Foundation Agreement

Annex III, Attachment 11, Law 33

 

 

 

 

 

 

 

 

 

 

 Federal Law on the Implementation of the International Convention on Civil Liability for Oil Pollution Damage


 

Short Title

 

This Law may be cited as the Federal Law on the Implementation of the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended.

 

Interpretation

 

2.(1)   In this Law, unless the context otherwise requires–

 

“1969 Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1969 as defined in Article 2(6) of the Protocol;

 

“1992 Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1992 as defined in Article 11(2) of the Protocol;

 

“Certificate” means a certificate attesting insurance or financial security is in force in accordance with the provisions of the 1992 Liability Convention;

 

“Company” means the owner of the ship or any other organisation or person such as the manager or the bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who on assuming the responsibility has agreed to take over all duties and responsibilities of the owner under this Law, the 1992 Liability Convention and the Regulations made for its implementation

 

“Competent Authority” means the competent authority provided for in section 4;

 

“Court” means a court of competent jurisdiction;

 

“Cyprus” means the United Cyprus Republic;

 

“Cyprus port” means a harbour basin within Cyprus and includes its anchorages and roadsteads;

 

“Cyprus ship” has the meaning assigned to it by the Federal Law on Merchant Shipping (Registration of Ships, Sales, and Mortgages);

 

“Department” means the Department having the responsibility for maritime affairs;

 

“Foreign ship” means a ship which is not a Cyprus ship;

 

“Gazette” means the federal Official Gazette;

 

“Instrument” means insurance or other financial security, such as the guarantee of a recognized bank or a certificate delivered by an international compensation fund, in the sums fixed by applying the limits of liability specified in Article V(1) of the 1992 Liability Convention to cover the liability for pollution damage under the 1992 Liability Convention satisfying the conditions imposed by Article VII(5) of the 1992 Liability Convention;

 

“Member” means the member of the Presidential Council heading the Department;

 

“Prescribed” means prescribed by a public instrument;

 

“Presidential Council” also includes the Transitional Federal Government referred to in Article 41 of the Constitution of the United Cyprus Republic;

 

“Protocol” means the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended, and as may be amended, from time to time, in accordance with the provisions of Article 15;

 

“Public instrument” includes regulations and orders published in the Gazette, and instructions, directions, notices, notifications and circulars made or issued under this Law;

 

“Recognized bank” means a commercial bank registered with the Central Bank of Cyprus;

 

 

(2)       Words and phrases used in this Law and not defined herein, have the meaning assigned to them by the 1992 Liability Convention.

 

 

(3)       For the purposes of this Law, the English text of the 1992 Liability Convention prevails.

 

Scope of Application

 

3         This Law applies to-

 

(a)         Cyprus ships subject to the provisions of the 1992 Liability Convention irrespective of where they may be; and

(b)         Foreign ships, entitled to fly the flag of a Contracting State, whilst they are within the territory, including the territorial waters, of Cyprus to the extent that such ships are subject to the provisions of the 1992 Liability Convention; and

(c)         Foreign ships, entitled to fly the flag of a State which is not a Contracting State, whilst they are within the territory, including the territorial waters, of Cyprus to the extent that such ships carry oil.

 

Competent Authority

 

4.(1)   The Competent Authority for the application of the provisions of this Law, the 1992 Liability Convention, and the Regulations made for its implementation, shall be the Directorate of Maritime Affairs of the Department.

 

(2)       Without prejudice to the generality of subsection (1), the Competent Authority shall have all the powers and competencies which by virtue of the 1992 Liability Convention may or are required to be exercised by Cyprus as a Contracting Government to the 1992 Liability Convention, except those which have been specifically reserved, under this Law, for the Minister and has the power-

 

(a)         to issue, in accordance with the provisions of Article VII of the 1992 Liability Convention, certificates to Cyprus ships

(b)         to issue, at the request of a Contracting State, certificates, in accordance with the provisions of Article VII of the 1992 Liability Convention, to ships which are registered in the requesting Contracting State;

(c)         to issue or certify, at the request of a State which is not a Contracting State, certificates, in accordance with the provisions of Article VII of the 1992 Liability Convention, to ships registered in the requesting State;

(d)         to cancel any certificate it has issued or certified;

(e)         to inspect Cyprus ships, irrespective of where they may be and, if necessary, to detain such ships and/or to prohibit any operation involving the handling of oil;

(f)          to inspect foreign ships subject to the provisions of this Law, whilst within the territory, including the territorial waters, of Cyprus, and if, necessary, to detain such ships and/or to prohibit any operation any operation involving the handling of oil;

(g)         to carry out investigations into alleged contraventions of the provisions of Article VII of the 1992 Liability Convention;

(h)         to communicate to the International Maritime Organisation information in accordance with the provisions of the 1992 Liability Convention;

(i)           to propose for the consideration of the Member organisations whose instruments shall be accepted for the issue of certificates;

(j)           to supervise and monitor the work of any organisation whose instrument have been accepted in accordance with the provisions of section 5(3), for the issue of certificates;

(k)         to initiate criminal proceedings under this Law;

(l)           to determine the terms and conditions of bank and personal guarantees referred to in section 8;

(m)        to impose administrative fines under this Law in accordance with the directions of the Member to this end.

 

Supervising Authority

 

5.(1)   The Member shall be the supervising authority for all matters under this Law.

 

(2)       For the purposes of this Law, the 1992 Liability Convention and the Regulations made for their implementation the Member has the power-

 

(a)         to hear and decide upon hierarchical recourses in accordance with this Law;

(b)         to issue instructions and/or directions to the Competent Authority for the better implementation of this Law, the 1992 Liability Convention and the Regulations made for its implementation;

(c)         to authorize the Competent Authority to issue instructions and/or directions to the owners, masters or any other person related to Cyprus ships;

(d)         to authorize the Competent Authority to issue instructions and/or directions to the owners and masters or any other person related to foreign ships whilst within the territory, including the territorial waters, of Cyprus;

(e)         to authorize the Competent Authority to issue instructions and/or directions to the organisations whose instruments have been accepted by Cyprus for the issue of certificates;

(f)          to issue directions indicating contraventions of this Law, the 1992 Liability Convention and the Regulations made for their implementation and the range of corresponding administrative fines for each such contravention:

Provided always that the Competent Authority retains the right of deciding freely the amount of the administrative fine to be imposed under this Law, on the basis of the facts and merits of each particular case, in exercise of its discretionary power, so long as such discretion is exercised within the framework of such directions.

 

 

(3)       The Member may approve, by an Order published in the Gazette, organisations whose instruments shall be acceptable by the Competent Authority for the issue of certificates and may determine the terms and conditions of such acceptance.

 

Certificates

 

5 (1).  Subject to sub-section (2), the Competent Authority may, by a reasoned decision, cancel any certificate it has issued or certified, in accordance with the provisions of Article VII of the 1992 Liability Convention, and in such case it shall notify, in writing-

 

(a)         the owner to whom the certificate was issued or certified; and

(b)         in case the certificate was issued or certified at the request of another Contracting State or of a State which is not a Contracting State, the State concerned.

 

and shall indicate, in such notification, the date as from which the cancellation of the certificate takes effect.

 

(2)       The Competent Authority may cancel a certificate issued or certified by it-

 

(a)         subject to the provisions of Article VII(5) of the 1992 Liability Convention, upon receipt of a notice terminating the validity of the instrument which form the basis for the issue or certification of the certificate;

(b)         if it believes that the insurer or guarantor named in the certificate is not financially capable of meeting the obligations imposed by the 1992 Liability Convention;

(c)         if an investigation carried by the Competent Authority reveals that the certificate was obtained by fraud, false declaration, or concealment of a material fact;

(d)         upon the receipt of a written request from the Contracting State or State at the request of which the certificate was issued or certified.

 

(3)       A certificate issued or certified by the Competent Authority shall, irrespective of the date until which is indicated therein as remaining valid, automatically ceases to be valid:

 

(a)         upon the transfer of the ownership of the particular ship to an owner other than that indicated on the certificate;

(b)         when the particular ship ceases to be registered in Cyprus;

(c)         when the particular ship ceases to be registered in the Contacting State or in the State at the request of which the certificate was issued or certified.

 

(4)       The master or any person in whose custody a certificate cancelled under sub-section (1) or which has ceased to be valid under sub-section (2) exists shall, as soon as the master or person becomes aware of the fact, return the certificate in question to the Competent Authority.

 

Competent Court

 

(5).      In case action for compensation is brought, under Article IX(1) of the 1992 Liability Convention, in Cyprus, the competent Court shall be:

 

(a)         in case the incident has affected only one of the constituent States or has required only one of the constituent States to take preventative measures, the competent Court of the affected constituent State;

(b)         if the incident has affected both constituent States or has affected only one of the constituent States and has required the other constituent State to take preventative measures, the Supreme Court of Cyprus.

 

Constitution of the Fund

 

(6).(a) In case action for compensation is brought, under Article IX of the 1992 Liability Convention, in Cyprus, the fund shall be constituted in accordance with Regulations made, under this Law, by the Presidential Council.

 

(b)       Until such Regulations are made, the competent Court shall, subject to the provisions of Article V of the 1992 Liability Convention, determine the terms and conditions for constituting the fund.

 

Recognition and Enforcement of Judgements of Foreign Courts

 

(7).      Subject to the provisions of Article X(1)(a) or (b) of the 1992 Liability Convention, any judgement given by a foreign Court with jurisdiction under Article IX of the 1992 Liability Convention shall, in accordance with the provisions of Article X of the 1992 Liability Convention, be recognised and be enforceable in Cyprus.

 

 

Prohibition of Sailing

 

6.(1)   The sailing of ships, which are subject to the provisions of this Law, is prohibited for as long as they do not comply with the requirements of this Law, the 1992 Liability Convention and the Regulations made for its implementation.

 

(2)       The entry of ships in the territorial waters of Cyprus is prohibited for as long as they do not comply with the requirements of this Law, the 1992 Liability Convention and the Regulations made for its implementation.

 

(3)       If during, the inspection of any ship under this Law, the Competent Authority ascertains any contravention of this Law, the 1992 Liability Convention and the Regulations made for its implementation, the Competent Authority shall confirm to the master the particular contravention in writing, call the master to explain the situation and issue an order prohibiting the ship from sailing, and if the ship is located within the territory, including the territorial waters, of Cyprus, if necessary, issue an order prohibiting the handling of oil,  until the Competent Authority is satisfied that-

 

(a)         the contraventions have been rectified; and

(b)         the charges for the inspection of the ship, in order to confirm the rectification of the contraventions, have been paid by or on behalf of the ship; and.

(c)         in case of an administrative fine being imposed in accordance with the provisions of this Law, such fine has been paid.

 

(4)       An order prohibiting the ship from sailing and an order prohibiting the handling of oil, under sub-section (2), shall also include information about the right to hierarchical recourse under this Law.

 

Criminal Offences

 

7.(1)   A master, who attempts to sail in contravention of the prohibition of sailing or who attempts or continues operations in contravention of a prohibition of relating to the handling of oil, imposed on the ship under the provisions of this Law, or who enters the territorial waters of Cyprus without the ship holding a valid certificate, or who makes use of a certificate which has been cancelled or has ceased to be valid under this Law, shall be guilty of an offence, and upon conviction, shall be liable to imprisonment for a term not exceeding two years, or to a fine not exceeding five thousand pounds, or to both such sentences.

 

(2)       The owner, the bareboat charterer, the ship manager or any other person who knowingly aids and/or assists in the commission of an offence under sub-section (1) commits the same offence.

 

(3)       A fine imposed under this Law shall be paid to the Federal Government.

 

(4)       For the purposes of this section, the competent Court, in case of a ship or person committing an offence under sub-section (1), whilst within any Cyprus port, is the competent Court of the respective constituent State.

 

Administrative Fine

 

8.(1)   Contravention of the provisions of this Law, the 1992 Liability Convention and the Regulations made for its implementation, shall be punishable, notwithstanding whether a case of criminal or disciplinary liability arises under any other legal provision, with an administrative fine not exceeding five thousand pounds, depending on the seriousness of the contravention.

 

(2)       An administrative fine under sub-section (1) shall be imposed on the owner or the bareboat charterer, the ship manager or the master, by a reasoned decision of the Competent Authority confirming the contravention.

 

(3)       The amount of any fine imposed under sub-sections (1) and (2), shall be calculated in each case on the basis of directions issued by the Member under this Law.

 

(4)       The Competent Authority shall notify in writing the person, on whom an administrative fine has been imposed under sub-sections (1) and (2), of its decision imposing the administrative fine and, in case the sailing of the ship has been prohibited under this Law, it shall not allow lifting of the order prohibiting the ship from sailing under this Law, until the administrative fine has been paid, or a bank guarantee issued by a recognized bank of equal amount for the benefit of and with terms satisfying the Competent Authority has been deposited.

 

(5)       A notification under sub-section (4) shall also include information about the right to hierarchical recourse under this Law.

 

(6)       Administrative fines and bank guarantees shall be paid to the Federal Government.

 

Hierarchical Recourse

 

9.(1)   A recourse may be filed with the Member against-

 

(a)         an order of the Competent Authority prohibiting the sailing of a ship or prohibiting the handling of oil under this Law; or

(b)         a decision of the Competent Authority imposing an administrative fine under this Law.

 

(2)       A recourse under sub-section (1) shall be filed-

 

(a)         within seventy two hours from the time of issue of the order prohibiting the sailing of the ship or prohibiting the handling of oil;

(b)         within thirty days from the date of notification of the decision to impose an administrative fine in the case of a contravention confirmed in a Cyprus port;

(c)         within sixty days from the date of notification of the decision to impose an administrative fine of a contravention confirmed in a foreign port.

 

(3)       A recourse under sub-section (1) shall not suspend the execution of an order prohibiting the sailing of the ship or of a decision imposing an administrative fine.

 

(4)       The Member shall examine the hierarchical recourse and shall, after having heard the interested parties or having given them an opportunity to express their views in writing, issue a decision on the recourse pursuant to sub-section (5)-

 

(a)         in case the recourse relates to an order prohibiting the sailing of a ship or an order prohibiting the handling of oil, not later than twenty-four hours;

(b)         in case the recourse relates to a decision imposing an administrative fine, not later than ten days;

 

from the time of the last hearing or of the receipt of the written submissions of the interested parties.

 

(5)       The Member may decide-

 

(a)         to confirm the challenged order or decision; or

(b)         to declare the challenged order or decision null and void; or

(c)         to amend the challenged decision; or

(d)         to issue a new decision in substitution for the challenged decision.

 

(6)       A decision under sub-section (5) shall also include information about the right to a recourse to the Supreme Court of Cyprus in accordance with the provisions of the Federal Law on the Administration of Justice.

 

(7)       A recourse under sub-section (6) shall not suspend the execution of a decision under sub-section (5).

 

(8)       The Competent Authority shall collect any amounts due under a bank guarantee in relation to an administrative fine imposed under this Law-

 

(a)         if no recourse to the Member is filed under subsection (1), after the lapse of the time limits specified in sub-sections (2)(b) or (c); or

(b)         if no recourse to the Supreme Court of Cyprus is filed against a decision made by the Member under sub-section (5), after the lapse of seventy five days from the date of the notification of the decision of the Member; or

(c)         upon the issue of a decision of the Supreme Court of Cyprus dismissing the case.

 

Court action for collection of the Administrative Fines

 

10.      In case of failure to pay an administrative fine imposed under this Law, the Competent Authority may take steps for the collection of the amount due as a civil debt.

 

Fines and costs to be a charge on the ship

 

11.      Notwithstanding the provisions of any other Law, fines or administrative fines imposed under this Law, as well as any charges for the inspection of the ship after its sailing has been prohibited under this Law, constitute a charge on the ship and shall be satisfied in priority against any other creditors, subject to their ranking after the last mortgage.

 

Regulations

 

12.(1) The Presidential Council may make Regulations published in the Gazette for prescribing or regulating any matter, which, according to the provisions of this Law or the 1992 Liability Convention, needs to, or may, be prescribed or regulated.

 

(2)       Without prejudice to the generality of sub-section (1), the Regulations made under that subsection may provide for a fine of up to five thousand pounds for the contravention of any of these regulations.

 

Schedule

 

13.(1) The attached Schedule shall be deemed to be an Order of the Minister made under section 5.(3) and the instruments issued by the organisations named in therein shall be accepted by the Competent Authority for the issue of certificates.

 

 

 

Schedule

 

The certificates of insurance issued by the following organisations shall be accepted by the Competent Authority for the issue of certificates:

 

(insert the names [and addresses] of the organisations)