Federal Law on Establishment of an International Fund for Compensation for Oil Pollution Damage

Ata Atun, Clelia Theodolou, Other Committee Members

 

 

 

Foundation Agreement

Annex III, Attachment 11, Law 35

 

 

 

 

 

 

 

 

 

 

 Federal Law on the Implementation of the International Convention for the Establishment of an International Fund for Compensation for Oil Pollution Damage

 

Short Title

 

1.        This Law may be cited as the Federal Law on the Implementation of the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, as amended.

 

Interpretation

 

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

 

“1971 Fund” means the International Fund for Compensation for Pollution Damage established by Article 2(1) of the 1971 Fund Convention;

 

“1992 Fund” means the International Fund for Compensation for Pollution Damage established by Article 3 of the Protocol;

 

“1971 Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, as defined in Article 2(2) of the Protocol;

 

“1992 Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 as defined in Article 27(2) 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;

 

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

 

“Court” means a court of competent jurisdiction;

 

“Cyprus” means the United Cyprus Republic;

 

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

 

“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 Fund specified in Article V(1) of the 1992 Fund Convention to cover the Fund for pollution damage under the 1992 Fund Convention satisfying the conditions imposed by Article VII(5) of the 1992 Fund 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 the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 as amended, and as may be amended, from time to time, in accordance with the provisions of Article 33;

 

“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 Fund Convention.

 

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

 

Scope of Application

 

3         This Law applies to-

 

(a)         Any persons who receives oil in a terminal installation located within the territory of Cyprus; and

(b)         Pollution caused in the areas specified in Article 3 of the 1992 Fund Convention and to preventive measures, wherever taken, to prevent or minimize such damage. In this respect the reference, in Article 3 of the 1992 Fund Convention, to Contracting State, shall be read and interpreted as meaning Cyprus.

 

Competent Authority

 

4.(1)   The Competent Authority for the application of the provisions of this Law, the 1992 Fund 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 Fund Convention may or are required to be exercised by Cyprus as a Contracting Government to the 1992 Fund Convention, except those which have been specifically reserved, under this Law, for the Member and has the power-

 

(a)         to require persons receiving oil terminal installations located in the territory of Cyprus to submit reports regarding the quantities of oil received;

(b)         to review, to counter-sign and to submit, in accordance with the provisions of the 1992 Fund Convention, to the Director of the 1992 Fund reports regarding the quantities of oil received by persons in the territory of Cyprus;

(c)         to determine the documents and information to be submitted in support of the reports regarding the quantities of oil received by persons in the territory of Cyprus;

(d)         to make declarations, or to communicate, to the Secretary General of the International Maritime Organisation and/or to the Director of the 1992 Fund, information in accordance with the provisions of the 1992 Fund Convention; to initiate criminal proceedings under this Law;

(e)         to initiate criminal proceedings under this Law;

(f)          to determine the terms and conditions of bank guarantees;

(g)         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 Fund 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 Fund Convention and the Regulations made for its implementation;

(c)         to authorize the Competent Authority to issue instructions and/or directions to the persons who receive oil in the territory of Cyprus;

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

(e)         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.

 

Recognition of the 1992 Fund

 

(3).(a) The 1992 Fund is recognised as a legal person capable under the Federal and the Constituent States Laws of Cyprus of assuming rights and obligations and of being a party to legal proceedings before any Court.

 

(b)       The Director of the 1992 Fund is recognised as the legal representative of the 1992 Fund.

 

Competent Court

 

(4).      Subject to the provisions of Article 7(3) to (6) of the 1992 Fund Convention, in case any action for compensation against the 1992 Fund is brought, under Article 7(1) of the 1992 Fund 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 that constituent State;

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

 

Recognition and Enforcement of Judgements of Foreign Courts

 

(5).      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 7 of the 1992 Fund Convention shall, in accordance with the provisions of Article 8 of the 1992 Fund Convention, be recognised and be enforceable in Cyprus.

 

Contributions

 

(6)       Subject to the provisions of sections 13.(1) and (2), any person who receives in a calendar year referred to in Article 12(2)(a) or (b) total quantities of oil exceeding 150,000 tons is liable to pay to the 1992 Fund contributions in accordance with the provisions of Article 12 of the 1992 Fund Convention and, in case the contribution due is in arrears shall be liable to pay to the 1992 Fund interest in accordance with the provisions of Article 13(1) of the 1992 Fund Convention.

 

 

 

 

 

Criminal Offences

 

6.(1)   A person who submits to the Competent Authority false or incorrect reports on reports regarding the quantities of oil it has received or false or incorrect documentation and information in support of such reports 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 operator of the terminal installation 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, where the usual place of residence of the person committing an offence under sub-section (1) or (2) is located in one of the two constituent States, is the competent Court of that constituent State, and in all other cases is the Supreme Court of Cyprus.

 

Administrative Fine

 

8.(1)   Contravention of the provisions of this Law, the 1992 Fund 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 Company 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.

 

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

 

(6)       The administrative fine shall be paid, or a bank guarantee from a recognised bank shall be deposited with the Competent Authority, within 30 days from the date of notification.

 

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

 

(2)       A recourse under sub-section (1) shall be filed within fifteen days from the date of notification of the decision to impose an administrative fine

 

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

 

(4)       The Minister 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, 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 Minister may decide-

 

(a)         to confirm the challenged decision; or

(b)         to declare the challenged 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 Minister is filed under subsection (1), after the lapse of the time limits specified in sub-sections (2); or

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

 

Regulations

 

11.(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 Fund 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.