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Merchant Shipping Act 1988

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This is the original version (as it was originally enacted).

17(1)Section 4 (liability of the Fund) shall be amended as follows.

(2)In subsection (1)—

(a)for “causing the damage” substitute “, or the relevant threat of contamination, by reason of which the damage was caused”; and

(b)for “left undone” substitute “omitted to be done”.

(3)For subsections (8) and (9) substitute—

(8)If the Fund proves that the pollution damage resulted wholly or partly—

(a)from anything done or omitted to be done with intent to cause damage by the person who suffered the damage, or

(b)from the negligence of that person,

the Fund may (subject to subsection (9A) below) be exonerated wholly or partly from its obligation to pay compensation to that person.

(9)Where the liability under section 1 of the Act of 1971 in respect of the pollution damage is limited to any extent by subsection (8) of that section (contributory negligence), the Fund shall (subject to subsection (9A) below) be exonerated to the same extent.

(9A)Subsections (8) and (9) above shall not apply where the pollution damage consists of the cost of preventive measures or any damage caused by such measures.

(4)Omit subsections (10) to (13).

(5)After section 4 insert—

4ALimitation of Fund’s liability under s. 4

(1)The Fund’s liability under section 4 of this Act shall be subject to the limits imposed by paragraphs 4 and 5 of Article 4 of the Fund Convention (which impose an overall limit on the liabilities of the Fund and the text of which is set out in Schedule 1 to this Act); and in those provisions references to the 1984 Liability Convention are references to the Liability Convention within the meaning of this Part of this Act.

(2)A certificate given by the Director of the Fund stating that sub-paragraph (c) of paragraph 4 of Article 4 of the Fund Convention is applicable to any claim under section 4 of this Act shall be conclusive evidence for the purposes of this Part of this Act that it is so applicable.

(3)For the purpose of giving effect to paragraphs 4 and 5 of Article 4 of the Fund Convention a court giving judgment against the Fund in proceedings under section 4 of this Act shall notify the Fund, and—

(a)no steps shall be taken to enforce the judgment unless and until the court gives leave to enforce it,

(b)that leave shall not be given unless and until the Fund notifies the court either that the amount of the claim is not to be reduced under those paragraphs, or that it is to be reduced to a specified amount, and

(c)in the latter case the judgment shall be enforceable only for the reduced amount.

(4)Any steps taken to obtain payment of an amount or areduced amount in pursuance of such a judgment as is mentioned in subsection (3) above shall be steps to obtain payment 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 relevant day, namely the day on which the Assembly of the Fund decide the date for the first payment of compensation in respect of the incident, or

(ii)if no sum has been so fixed for the relevant day, the last day before that day for which a sum has been so fixed; and

(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 relevant day, or

(ii)that no sum has been so fixed for the relevant 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 relevant day,

shall be conclusive evidence of those matters for the purposes of this Part of this Act.

(5)The Secretary of State may by order made by statutory instrument make such amendments of this section and of Schedule 1 to this Act as appear to him to be appropriate for the purpose of giving effect to the entry into force of any amendment of the provisions set out in that Schedule.

(6)Any document purporting to be such a certificate as is mentioned in subsection (2) or (4)(b) above shall, in any legal proceedings, be received in evidence and, unless the contrary is proved, be deemed to be such a certificate.

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