Commentary on Sections
Section 1
19.Section 1 enables Her Majesty by Order in Council to give effect to revisions of the international arrangements relating to compensation for oil pollution from ships.
20.Subsection (1) defines the three instruments which establish the international arrangements relating to compensation for oil pollution from ships. These are the Supplementary Fund Protocol, the Liability Convention and the Fund Convention. The latter two instruments are implemented in Chapters 3 and 4 respectively of Part 6 of the MSA 1995 and so the definitions in this Act use the definitions contained in that Act.
21.Subsection (2) contains the enabling powers which provide for implementation, by Order in Council, of:
the Supplementary Fund Protocol
instruments which revise or replace any or all of the three instruments which form the international oil pollution compensation regime (i.e. the Liability Convention, the Fund Convention and the Supplementary Fund Protocol).
22.The power in paragraph (b) will allow the UK to implement any new instrument governing liability or compensation for oil pollution which revises or amends the existing regime. Such instruments may arise out of a review of the existing international oil pollution compensation regime (see paragraph 14 of these notes). Use of this provision will be subject to affirmative resolution procedure (see paragraph 33 of these notes).
23.Subsection (3) provides that any provision in an Order in Council under subsection (2) may not come into force until the treaty in question has been ratified by the United Kingdom. But this does not prevent particular implementing provisions coming into force sooner if this is necessary in order for the United Kingdom to be able to ratify it. Under the Fund Convention and Supplementary Fund Protocol, States are required to provide information relating to receipts of oil to the Secretary General of the International Maritime Organization at the time of ratification. If future instruments contain similar obligations it may be necessary to make provision for obtaining such information prior to ratification.
24.Subsection (4) specifies particular provisions which may be included in an Order in Council under subsection (2).
25.Paragraph (a) makes it clear that an Order in Council may require contributions to be paid to either the Supplementary Fund or another fund which may be established under instruments which modify or replace any or all of the Supplementary Fund Protocol, the Liability Convention and the Fund Convention. It is likely that this provision would be used in a similar way to section 173(1) of the MSA 1995, which deals with contributions to the current International Fund
26.Paragraph (b) allows an Order in Council to contain provision enabling the Secretary of State to make an order by statutory instrument in an Order in Council under subsection (2). Such a provision may be used to enable the United Kingdom to implement the procedure in Article 24 of the Supplementary Fund Protocol. This procedure is expected to be replicated in any instruments which revise the Liability Convention, the Fund Convention or the Supplementary Fund Protocol. The procedure provides for increases to be made to the limits of liability or compensation as set out in each instrument, without the need to revise or amend the instrument in question. Similar procedures appear in the Liability Convention (Article 15) and the Fund Convention (Article 33).
27.Paragraph (c) provides for the delegation of functions that could be exercised under an Order in Council.
28.Paragraph (d) provides for an Order in Council to create summary offences and offences which may be tried either summarily or on indictment. Where conviction is on indictment, any term of imprisonment must not exceed two years.
29.Paragraph (e) allows for provisions made by or under an Order in Council to apply beyond the territorial sea.
30.Paragraph (f) provides for an Order in Council to make provision that applies to or affects the interests of the Crown.
31.Subsection (5) enables an Order in Council made under subsection (2) to provide for various ancillary matters:
Paragraph (b) provides for an Order in Council to modify or apply provisions of other enactments or instruments, including the MSA 1995. It is envisaged that the Order in Council which will give effect to the Supplementary Fund Protocol will amend sections in Chapter 4 of Part 6 of the MSA 1995 relating to the Fund Convention. Implementation of any instruments which revise the oil pollution compensation regime are also likely to entail amendment of Chapters 3 and 4 of Part 6 of the MSA 1995 and Schedule 5 to that Act
Paragraph (c) is a standard paragraph providing for other provisions (incidental, supplemental, consequential or transitional) which may be necessary as a result of giving effect to the instruments set out in subsection 2.
Paragraph (d) provides for provisions made under subsection (2) to be extended to British possessions. The usual process when ratifying international agreements is for the United Kingdom to ratify on behalf of the overseas territories and crown dependencies if they wish. Possessions then have a choice as to whether they have the United Kingdom legislation extended to them or whether they implement through their own legislation.
32.Subsections (6) and (7) explain the Parliamentary procedure to be followed in respect of an Order in Council made under subsection (2).
33.Under subsection (6)(a) an Order in Council which relates to any instrument which revises or replaces the Liability Convention, the Fund Convention or the Supplementary Fund Protocol will be subject to the affirmative resolution procedure.
34.Under subsection (6)(b) and subsection (7)(a) an Order in Council giving effect only to the Supplementary Fund Protocol will be subject to the negative resolution procedure. This will facilitate the prompt implementation of the Supplementary Fund Protocol.
35.Subsections (6)(c) and (7)(a) provide that Orders in Council relating only to the law in British possessions require no formal Parliamentary procedure.
36.Subsection (7)(b) provides that any order made under an Order in Council by virtue of subsection (4)(b) (see paragraph 26 of these notes) is subject to the negative resolution procedure.
37.The intention is to make an Order in Council to implement the Supplementary Fund Protocol as soon as possible. The Supplementary Fund Protocol is already in force in at least 8 States; under Article 21(2), the Protocol will enter into force in respect of the United Kingdom 3 months after the date on which the United Kingdom ratifies the Protocol.
38.Copies of an advanced draft of the Order in Council intended to implement the Supplementary Fund Protocol under section 1 were made available during the consideration of the Bill by each House.
Section 2: Power to give effect to Annex VI of the MARPOL Convention
39.Section 2 of the Act enables Her Majesty by Order in Council to implement Annex VI (Regulations for the Prevention of Air Pollution from Ships) of the MARPOL Convention (see paragraphs 15 to 18).
40.Subsection (2) inserts a specific reference to Annex VI of the MARPOL Convention in section 128(1) of the MSA 1995. This will enable Annex VI to be implemented using the same powers that have been used to implement the other annexes of the MARPOL Convention.
41.It is expected that Annex VI of the MARPOL Convention will be implemented by regulations after an Order in Council has been made giving the power to make such regulations.
Section 3: Limitation period for claims against the International Fund
42.Section 3 amends section 178(1) of the MSA 1995. Article 6 of the Fund Convention provides that rights to compensation under that Convention shall be extinguished unless an action is brought within 3 years from the date when the damage occurred. The corresponding provision in section 178 of the MSA 1995 provides that no action to enforce a claim shall be entertained by a court in the United Kingdom unless the action is commenced not later than three years after the claim against the Fund arose.
43.While the intention when section 178 was originally enacted was to give effect to Article 6 of the Fund Convention, it is thought that there is a risk that section 178(1) could be read as referring to the time when it is established that full compensation for oil pollution damage cannot be obtained from the shipowner. Under section 175(1) of the MSA 1995, the Fund is only liable if a person suffering damage has been unable to obtain full compensation under section 153 of that Act (i.e. through the shipowner or insurer under the Liability Convention).
44.Section 3 of the Act therefore amends section 178(1) to make it absolutely clear that the time limit contained in the MSA 1995 is consistent with the text of the Convention.
Section 4: Short title, commencement and extent
45.Subsection (2) provides for commencement of the Act. Sections 1(2)(b) and 3 will come into force 2 months after the day on which the Act was passed.
46.Sections 1(2)(a) and 2 entered into force on the day on which the Act was passed. This will allow the United Kingdom to implement the Supplementary Fund Protocol and Annex VI to MARPOL promptly.
47.Subsection (3) provides for amendments made by section 3 to be extended to British possessions under section 315 of the MSA 1995.
