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The Merchant Shipping (Oil Pollution) (Virgin Islands) Order 1997

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CHAPTER IIILIABILITY FOR OIL POLLUTION.

Preliminary
Meaning of “the Liability Convention” and related expressions.

152.  (1)  In this Chapter –

“the Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage 1992;

“Liability Convention country” means a country in respect of which the Liability Convention is in force, and includes the United Kingdom and any relevant British possession to which the Liability Convention has been extended; and

“Liability Convention State” means a State which is a party to the Convention.

(2) If Her Majesty by Order in Council made declares that any State specified in the Order is a party to the Liability Convention in respect of any country so specified the Order shall, while in force, be conclusive evidence that that State is a party to the Liability Convention in respect of that country.

Liability
Meaning of “the Liability Convention” and related expressions.

153.  (1)  Where, as a result of any occurrence, any oil is discharged or escapes from a ship to which this section applies, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable—

(a)for any damage caused outside the ship in the territory of the Virgin Islands by contamination resulting from the discharge or escape; and

(b)for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the territory of the Virgin Islands by contamination resulting from the discharge or escape; and

(c)for any damage caused in the territory of the Virgin Islands by any measures so taken.

(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship to which this section applies by the contamination that might result if there were a discharge or escape of oil from the ship, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable –

(a)for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the territory of the Virgin Islands, and

(b)for any damage caused outside the ship in the territory of the Virgin Islands by any measures so taken;

and in this Chapter any such threat is referred to as a relevant threat of contamination.

(3) Subject to subsection (4) below, this section applies to any ship constructed or adapted for carrying oil in bulk as cargo.

(4) Where any ship so constructed or adapted is capable of carrying other cargoes besides oil, this section shall apply to any such ship –

(a)while it is carrying oil in bulk as cargo; and

(b)unless it is proved that no residues from the carriage of any such oil remain in the ship, while it is on any voyage following the carriage of any such oil,

but not otherwise.

(5) Where a person incurs a liability under subsection (1) or (2) above he shall also be liable for any damage or cost for which he would be liable under that subsection if the references in it to the territory of the Virgin Islands included the territory of any other Liability Convention country.

(6) Where –

(a)as a result of any occurrence, a liability is incurred under this section by the owner of each of two or more ships, but

(b)the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,

each of the owners shall be liable, jointly with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.

(7) For the purposes of this Chapter –

(a)references to a discharge or escape of oil from a ship are references to such a discharge or escape wherever it may occur, and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank;

(b)where more than one discharge or escape results from the same occurrence or from a series of occurrences having the same origin, they shall be treated as one, but any measures taken after the first of them shall be deemed to have been taken after the discharge or escape; and

(c)where a relevant threat of contamination results from a series of occurrences having the same origin, they shall be treated as a single occurrence.

(8) If the owner proves that the pollution damage resulted to any extent from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner shall be exonerated to that extent from his liability to such person.

154.  (1)  Where, as a result of any occurrence, any oil is discharged or escapes from a ship other than a ship to which section 153 applies, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable –

(a)for any damage caused outside the ship in the territory of the Virgin Islands by contamination resulting from the discharge or escape; and

(b)for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the territory of the Virgin Islands by contamination resulting from the discharge or escape; and

(c)for any damage so caused in the territory of the Virgin Islands by any measures so taken.

(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship other than a ship to which section 153 applies by the contamination which might result if there were a discharge or escape of oil from the ship, then (except as otherwise provided by this Chapter) the owner of the ship shall be liable –

(a)for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the territory of the Virgin Islands; and

(b)for any damage caused outside the ship in the territory of the Virgin Islands by any measures so taken;

and in the subsequent provisions of this Chapter any such threat is referred to as a relevant threat of contamination.

(3) Where –

(a)as a result of any occurrence, a liability is incurred under this section by the owner of each of two or more ships, but

(b)the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,

each of the owners shall be liable, jointly with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.

(4) If the owner proves that the pollution damage resulted to any extent from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner shall be exonerated to that extent from his liability to such person.

(5) In this section “ship” includes a vessel which is not seagoing.

Exceptions from liability under sections 153 and 154.

155.  –No liability shall be incurred by the owner of a ship under section 153 or 154 by reason of any discharge or escape of oil from the ship, or by reason of any relevant threat of contamination, if he proves that the discharge or escape, or (as the case may be) the threat of contamination –

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

(b)was due wholly to anything done or omitted to be done by another person, not being a servant or agent of the owner, with intent to do damage; or

(c)was due wholly to the negligence or wrongful act of a government or other authority in exercising its function of maintaining lights or other navigational aids for the maintenance of which it was responsible.

Restriction of liability for oil pollution.

156.  (1)  Where, as a result of any occurrence –

(a)any oil is discharged or escapes from a ship (whether one to which section 153 or one to which section 154 applies), or

(b)there arises a relevant threat of contamination,

then, whether or not the owner of the ship in question incurs a liability under section 153 or 154 –

(i)he shall not be liable otherwise than under that section for any such damage or cost as is mentioned in it, and

(ii)no person to whom this paragraph applies shall be liable for any such damage or cost unless it resulted from anything done or omitted to be done by him either with intent to cause any such damage or cost or recklessly and in the knowledge that any such damage or cost would probably result.

(2) Subsection (1) (ii) above applies to –

(a)any servant or agent of the owner of the ship;

(b)any person not falling within paragraph (a) above but employed or engaged in any capacity on board the ship or to perform any service for the ship;

(c)any charterer of the ship (however described and including a bareboat charterer), and any manager or operator of the ship;

(d)any person performing salvage operations with the consent of the owner of the ship or on the instructions of a competent public authority;

(e)any person taking any such measures as are mentioned in subsection (1)(b) or (2) (a) of section 153 or 154;

(f)any servant or agent of a person falling within paragraph (c),(d) or (e) above.

(3) The liability of the owner of a ship under section 153 or 154 for any impairment of the environment shall be taken to be a liability only in respect of –

(a)any resulting loss of profits, and

(b)the cost of any reasonable measures of reinstatement actually taken or to be taken.

Limitation of liability
Limitation of liability under section 153.

157.  (1)  Where, as a result of any occurrence, the owner of a ship incurs liability under section 153 by reason of a discharge or escape or by reason of any relevant threat of contamination, then (subject to subsection (3) below) –

(a)he may limit that liability in accordance with the provisions of this Chapter, and

(b)if he does so, his liability (being the aggregate of his liabilities under section 153 resulting from the occurrence) shall not exceed the relevant amount.

(2) In subsection (1) above, “the relevant amount” means –

(a)in relation to a ship not exceeding 5,000 tons, three million special drawing rights;

(b)in relation to a ship exceeding 5,000 tons, three million special drawing rights together with an additional 420 special drawing rights for each ton of its tonnage in excess of 5,000 tons up to a maximum amount of 59.7 million special drawing rights;

but the Secretary of State may by order make such amendments of paragraphs (a) and (b) above as appear to him to be appropriate for the purpose of giving effect to the entry into force of any amendment of the limits of liability laid down in paragraph 1 of Article V of the Liability Convention.

(3) Subsection (1) above shall not apply in a case where it is proved that the discharge or escape, or (as the case may be) the relevant threat of contamination, resulted from anything done or omitted to be done by the owner either with intent to cause any such damage or cost as is mentioned in section 153 or recklessly and in the knowledge that any such damage or cost would probably result.

(4) For the purpose of this section a ship’s tonnage shall be its gross tonnage calculated in such a manner as may be prescribed by an order made by the Secretary of State.

(5) . . .

Limitation actions.

158.  (1)  Where the owner of a ship has or is alleged to have incurred a liability under section 153 he may apply to the court for the limitation of that liability to an amount determined in accordance with section 157.

(2) If on such an application the court finds that the applicant has incurred such a liability but has not found that he is entitled to limit it, the court shall, after determining the limit which would apply to the applicant’s liability if he were entitled to limit it and directing payment into court of the amount of that limit –

(a)determine the amounts that would, apart from the limit, be due in respect of the liability to the several persons making claims in the proceedings; and

(b)direct the distribution of the amount paid into court (or, as the case may be, so much of it as does not exceed the liability) among those persons in proportion to their claims, subject to the following provisions of this section.

(2A) Where

(a)a distribution is made under subsection (2) (b) above without the court having found that the applicant is entitled to limit his liability, and

(b)the court subsequently finds that the applicant is not so entitled,

the making of the distribution is not to be regarded as affecting the applicant’s liability in excess of the amount distributed.

(3) A payment into court of the amount of a limit determined in pursuance of this section shall be made in dollars; and

(a)for the purpose of converting such an amount from special drawing rights into dollars one special drawing right shall be treated as equal to such a sum in dollars 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 Ministry of Finance stating –

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

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

shall be conclusive evidence of those matters for the purposes of this Chapter;

(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.

(4) No claim shall be admitted in proceedings under this section unless it is made within such time as the court may direct or such further time as the court may allow.

(5) Where any sum has been paid in or towards satisfaction of any claim in respect of the damage or cost to which the liability extends –

(a)by the owner or the persons referred to in section 165 “the insurer” or

(b)by a person who has or is alleged to have incurred a liability, otherwise than under section 153, for the damage or cost and who is entitled to limit his liability in connection with the ship by virtue of section 17 or 18 of the Merchant Shipping Act 1979 as extended to the Virgin Islands (1)

the person who paid the sum shall, to the extent of that sum, be in the same position with respect to any distribution made in proceedings under this section as the person to whom it was paid would have been.

(6) Where the person who incurred the liability has voluntarily made any reasonable sacrifices or taken any other reasonable measures to prevent or reduce damage to which the liability extends or might have extended he shall be in the same position with respect to any distribution made in proceedings under this section as if he had a claim in respect of the liability equal to the cost of the sacrifice or other measures.

(7) The court may, if it thinks fit, postpone the distribution of such part of the amount to be distributed as it deems appropriate having regard to any claims that may later be established before a court of any country outside the Virgin Islands.

(8) No lien or other right in respect of any ship or other property shall affect the proportions in which any amount is distributed in accordance with subsection (2)(b) above.

Restriction on enforcement after establishment of limitation fund.

159.  (1)  Where the court has found that a person who has incurred a liability under section 153 is entitled to limit that liability to any amount and he has paid into court a sum not less than that amount –

(a)the court shall order the release of any ship or other property arrested in connection with a claim in respect of that liability or any security given to prevent or obtain release from such an arrest; and

(b)no judgment or decree for any such claim shall be enforced, except so far as it is for costs….;

if the sum paid into court, or such part thereof as corresponds to the claim, will be actually available to the claimant or would have been available to him if the proper steps in the proceedings under section 158 had been taken.

Concurrent liabilities of owners and others.

160.  Where, as a result of any discharge or escape of oil from a ship or as a result of any relevant threat of contamination, the owner of the ship incurs a liability under section 153 and any other person incurs a liability, otherwise than under that section, for any such damage or cost as is mentioned in subsection (1) or (2) of that section then, if –

(a)the owner has been found, in proceedings under section 158 to be entitled to limit his liability to any amount and has paid into court a sum not less than the amount; and

(b)the other person is entitled to limit his liability in connection with the ship by virtue of section 17 or 18 of the Merchant Shipping Act 1979 as extended to the Virgin Islands

no proceedings shall be taken against the other person in respect of his liability, and if any such proceedings were commenced before the owner paid the sum into court, no further steps shall be taken in the proceedings except in relation to costs.

Establishmednt of limitation fund outside Virgin Islands.

161.  Where the events resulting in the liability of any person under section 153 also resulted in a corresponding liability under the law of another Liability Convention country sections 159 and 160 shall apply as if the references to sections 153 and 158 included references to the corresponding provisions of that law and the references to sums paid into court included references to any sums secured under those provisions in respect of the liability.

Extinguishment of claims.

162.  No action to enforce a claim in respect of a liability incurred under section 153 or 154 shall be entertained by any court in the Virgin Islands unless the action is commenced not later than three years after the claim arose nor later than six years after the occurrence or first of the occurrences resulting in the discharge or escape, or (as the case may be) in the relevant threat of contamination, by reason of which the liability was incurred.

Complusory insurance against liability for pollution.

163.  (1)  Subject to the provisions of this Chapter relating to Government ships, subsection (2) below shall apply to any ship carrying in bulk a cargo of more than 2,000 tons of oil of a description specified in regulations made by the Governor.

(2) The ship shall not enter or leave a port in the Virgin Islands or arrive at or leave a terminal in the territorial sea of the Virgin Islands nor, if the ship is registered in the Virgin Islands, a port in any other country or a terminal in the territorial sea of any other country, unless there is in force a certificate complying with the provisions of subsection (3) below and showing that there is in force in respect of the ship a contract of insurance or other security satisfying the requirements of Article VIII of the Liability Convention (cover for owner’s liability).

(3) The certificate must be –

(a)if the ship is registered in the Virgin Islands, a certificate issued by the Governor;

(b)if the ship is registered in a Liability Convention country other than the Virgin Islands, a certificate issued by or under the authority of the government of the other Liability Convention country; and

(c)if the ship is registered in a country which is not a Liability Convention country, a certificate issued by the Governor or by or under the authority of the government of any Liability Convention country other than the Virgin Islands.

(4) Any certificate required by this section to be in force in respect of a ship shall be carried in the ship and shall, on demand, be produced by the master to any customs officer or officer of the Governor and, if the ship is registered in the Virgin Islands, to any proper officer.

(5) If a ship enters or leaves, or attempts to enter or leave, a port or arrives at or leaves, or attempts to arrive at or leave, a terminal in contravention of subsection (2) above, the master or owner shall be liable on conviction on indictment to a fine, or on summary conviction to a fine not exceeding $75,000.

(6) If a ship fails to carry, or the master of a ship fails to produce, a certificate as required by subsection (4) above, the master shall be liable on summary conviction to a fine not exceeding $50,000.

(7) If a ship attempts to leave a port in the Virgin Islands in contravention of this section the ship may be detained.

(8) In this section, “proper officer” in relation to a port in a country or territory outside the Virgin Islands means any officer exercising in that port functions similar to those of the Registrar of Shipping.

Issue certificate by Governor.

164.  (1)  Subject to subsection (2) below, if the Governor is satisfied, on the application for such a certificate as is mentioned in section 163 in respect of a ship registered in the Virgin Islands or in any country which is not a Liability Convention country, that there will be in force in respect of the ship, throughout the period for which the certificate is to be issued, a contract of insurance or other security satisfying the requirements of Article VII of the Liability Convention , the Governor shall issue such a certificate to the owner.

(2) If the Governor is of opinion that there is a doubt whether the person providing the insurance or other security will be able to meet his obligations thereunder, or whether the insurance or other security will cover the owner’s liability under section 153 in all circumstances, he may refuse the certificate.

(3) The Governor may make regulations providing for the cancellation and delivery up of a certificate under this section in such circumstances as may be prescribed by the regulations.

(4) If a person required by regulations under subsection (3) above to deliver up a certificate fails to do so he shall be liable on summary conviction to a fine not exceeding $20,000.

(5) The Governor shall send a copy of any certificate issued by him under this section in respect of a ship registered in the Virgin Islands to the Registrar of Shipping and the Registrar shall make the copy available for public inspection.

Rights of third parties against insurers.

165.  (1)  Where it is alleged that the owner of a ship has incurred a liability under section 153 as a result of any discharge or escape of oil occurring, or as a result of any relevant threat of contamination arising, while there was in force a contract of insurance or other security to which such a certificate as is mentioned in section 163 related, proceedings to enforce a claim in respect of the liability may be brought against the person who provided the insurance or other security (in the following provisions of this section referred to as “the owner”).

(2) In any proceedings brought against the insurer by virtue of this section it shall be a defence (in addition to any defence affecting the owner’s liability), to prove that the discharge or escape, or (as the case may be) the threat of contamination, was due to the wilful misconduct of the owner himself.

(3) The insurer may limit his liability in respect of claims made against him by virtue of this section in like manner and to the same extent as the owner may limit his liability but the insurer may do so whether or not the discharge or escape, or (as the case may be) the threat of contamination, resulted from anything done or omitted to be done by the owner as mentioned in section 157(3).

(4) Where the owner and the insurer each apply to the court for the limitation of his liability any sum paid into court in pursuance of either application shall be treated as paid also in pursuance of the other.

Supplementary
Jurisdiction of Virgin Islands courts and registration of foreign judgments.

166.  (1)  Paragraph (d) of section 1(1) of the Administration of Justice Act 1956 as applied in the Virgin Islands by the Admiralty Jurisdiction (Virgin Islands) Order in Council 1961(2) shall be construed as extending to any claim in respect of a liability incurred under this Chapter.

(2) Where –

(a)any oil is discharged or escapes from a ship but does not result in any damage caused by contamination in the territory of the Virgin Islands and no measures are reasonably taken to prevent or minimise such damage in that territory, or

(b)any relevant threat of contamination arises but no measures are reasonably taken to prevent or minimise such damage in the territory of the Virgin Islands,

no court in the Virgin Islands shall entertain any action (whether in rem or in personam) to enforce a claim arising from any relevant damage or cost –

(i)against the owner of the ship, or

(ii)against any person to whom section 156(1) (ii) applies, unless any such damage or cost resulted from anything done or omitted to be done as mentioned in that provision.

(3) In subsection (2) above, “relevant damage or cost” means –

(a)in relation to any such discharge or escape as is mentioned in paragraph (a) of that subsection, any damage caused in the territory of another Liability Convention country by contamination resulting from the discharge or escape, or any cost incurred in taking measures to prevent or minimise such damage in the territory of another Liability Convention country;

(b)in relation to any such threat of contamination as is mentioned in paragraph (b) of that subsection, any cost incurred in taking measures to prevent or minimise such damage in the territory of another Liability Convention country; or

(c)any damage caused by any measures taken as mentioned in paragraph (a) or (b) above.

(4) The Foreign Judgments (Reciprocal Enforcement) Ordinance 1964 (3) shall apply, whether or not it would so apply apart from this section, to any judgment given by a court in a Liability Convention country to enforce a claim in respect of a liability incurred under any provision corresponding to section 153; and in its application to such a judgment that Ordinance shall have effect with the omission of subsections (2) and (3) of section 6.

Government ships.

167.  (1)  Nothing in the preceding provisions of this Chapter applies in relation to any warship or any ship for the time being used by the government of any State for other than commercial purposes.

(2) In relation to a ship owned by a State and for the time being used for commercial purposes it shall be a sufficient compliance with section 163(2) if there is in force a certificate issued by the government of that State and showing that the ship is owned by that State and that any liability for pollution damage as defined in Article I of the Liability Convention will be met up to the limit prescribed by Article V of the Convention.

(3) Every Liability Convention State shall, for the purposes of any proceedings brought in a court in the Virgin Islands to enforce a claim in respect of a liability incurred under section 153, be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which such proceedings are to be commenced and carried on; but nothing in this subsection shall authorise the issue of execution against the property of any State.

Limitation of liability under section 154.

168.  For the purposes of section 17 of the Merchant Shipping Act 1979 as extended to the Virgin Islands any liability incurred under section 154 shall be deemed to be a liability to damages in respect of such damage to property as is mentioned in paragraph 1(a) of Article 2 of the Convention Limitation of Liability for Maritime Claims 1976.

Saving for recourse actions.

169.  Nothing in this Chapter shall prejudice any claim, or the enforcement of any claim, a person incurring any liability under this Chapter may have against another person in respect of that liability.

Intepretation.

170.  (1)  In this Chapter –

“the court” means the High Court of the Virgin Islands;

“damage” includes loss;

“dollars” means United States dollars;

“oil” means persistent hydrocarbon mineral oil;

“owner” means the person or persons registered as the owner of the ship or, in the absence of registration, the person or person owning the ship, except that, in relation to a ship owned by a State which is operated by a person registered as the ship’s operator, it means the person registered as its operator;

“relevant threat of contamination” shall be construed in accordance with section 153(2) or 154(2); and

“ship” (subject to section 154(5)) means any sea-going vessel or seaborne craft of any type whatsoever.

(2) In relation to any damage or cost resulting from the discharge or escape of any oil from a ship or from a relevant threat of contamination, references in this Chapter to the owner of the ship are references to the owner at the time of the occurrence or first of the occurrences resulting in the discharge or escape or (as the case may be) in the threat of contamination.

(3) . . .

(4) References in this Chapter to the territory of any country include the territorial sea of that country and –

(a)in the case of the Virgin Islands, any area within the fisheries zone established by the Proclamation dated 9th March 1977 establishing a Fisheries Zone contiguous to the Territorial Sea of the Virgin Islands (4); and

(b)in the case of any other Liability Convention country, the exclusive economic zone of that country established in accordance with international law, or, if such a zone has not been established, such area adjacent to the territorial sea of that country and extending not more than 200 nautical miles from the baselines from which the breadth of that sea is measured as may have been determined by that State in question in accordance with international law.

171.  — ... ... ... ...

(1)

Sections 17 and 18 of the Merchant Shipping Act 1979 were extended to the Virgin Islands by The Merchant Shipping Act 1979 (British Virgin Islands) Order 1980 (S.I. 1980/1511).

(2)

S.I. 1961/2033 amended by S.I. 1965/130: By virtue of section 17(2)(b) of the Interpretation Act 1978 (1978 c. 30). S.I. 1961/2033 has effect as if made under section 150(2) and (3) of the Supreme Court Act 1981 (1981 c. 54).

(3)

Laws of the Virgin Islands, Revised Ed. 1991. Cap 27

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