CHAPTER
275
MERCHANT SHIPPING (OIL POLLUTION) |
ARRANGEMENT OF
SECTIONS |
PART I
PRELIMINARY |
SECTION |
|
|
PART II
PREVENTION OF OIL POLLUTION |
Interpretation of Part II. |
Annexes I, II, III and V of MARPOL 73/78 shall
have the force of law in The Bahamas. |
Discharge of oil into Bahamian waters. |
Discharge of certain oils from pipe-lines and
exploration, etc., areas. |
Defences of persons charged under section 4 or section
5. |
Defences of other persons charged under section 5
or section 6. |
Facilities in port for disposal of oil residues. |
Restrictions on transfer of oil at night. |
Duty to report discharge of oil into waters of
ports. |
PART III
SHIPPING CASUALTIES |
|
Right to recover in respect of unreasonable loss
or damage. |
Offences in relation to section 12. |
Service of directions under section 12. |
Application of sections 12 to 15 to certain
foreign and other ships. |
PART IV
CIVIL LIABILITY FOR OIL POLLUTION |
International Convention on Civil Liability for
Oil Pollution Damage, 1992, to have the force of law. |
International Convention on the Establishment of
an International Fund for Compensation for Oil Pollution Damage, 1992., to have
the force of law. |
PART V
ENFORCEMENT |
|
|
Enforcement and application of fines. |
PART VI
SUPPLEMENTAL |
Offences by bodies corporate. |
|
SCHEDULES |
FIRST SCHEDULE - Provisions Having Effect in connection
with MARPOL 73./78. |
SECOND SCHEDULE - Provisions Having Effect in connection
with the 1992. Liability Convention and the 1992 Oil Fund Convention. |
CHAPTER 275 |
MERCHANT SHIPPING
(OIL POLLUTION) |
An Act to
make provision concerning oil pollution of navigable waters by ships; to
provide for the civil liability for oil pollution by merchant ships; to give
effect to certain International Conventions relating to pollution of the sea;
and for matters connected with and incidental to the foregoing. | 17 of 1976
7 of 1989
15 of 1989
17 of 1989
S.I. 86/1990
S.I. 30/1992
S.I. 37/1992
17 of 1995
46 of 2000
11 of 2001
S.I. 83/2001 |
[Assent 29th
November, 1976]
[Commencement 1st September, 1989] |
PART I
PRELIMINARY |
1. This Act may be cited as the Merchant Shipping (Oil
Pollution) Act. | Short title. |
2. (1) In this Act, unless the context otherwise
requires- | Interpretation. |
"Bahamian
ship" means a ship for the time being registered under the
Merchant Shipping Act; |
"Bahamian
waters" means all areas of the sea subject to the jurisdiction of The
Bahamas, and includes territorial waters, archipelagic waters and internal
waters navigable by seagoing ships; |
"barge"
includes a lighter and any similar vessel; |
"contravene",
in relation to any provision, includes a failure to comply with that provision; |
"damage"
includes loss; |
"the
Director" means the Director of Maritime Affairs appointed under The
Bahamas Maritime Authority Act, 1995; |
"foreign"
means- |
(a) in relation
to a ship, registered under a law of a country other than The Bahamas; and |
(b) in relation
to a country or a court, a country other than The Bahamas, or court in such a
country; |
"Government"
means the Government of The Bahamas; |
"Government
ship" means any warship and any other ship for the time being used by the
Government of any State for other than commercial purposes; |
"the
Minister" means the Minister for the time being responsible for Maritime
Affairs; |
"mixture"
means any mixture of oil (or as the case may be, of oil of a particular
description referred to in the provision concerned) with water or with any
other substance; |
"occupier",
in relation to a place on land means the person in actual occupation of that
place or, if there be no such person, the owner thereof; |
"oil"
means oil of any description, and includes spirit produced from oil of any
description, and also includes coal tar; |
"oil
residues" means any waste consisting of, or arising from, oil or a
mixture; |
"owner",
in relation to a registered ship, means the person registered as its owner,
except that in relation to a ship owned by a State and operated by a person
registered as the operator of the ship, it means the person so registered; |
"Part"
means a Part of this Act; |
"persistent
oil" includes crude oil, heavy diesel oil, fuel oil, lubricating oil and
whale oil; |
"petroleum-spirit"
means such petroleum as when tested in a manner approved by the Minister
responsible for petroleum, gives off an inflammable vapour at a temperature of
less than seventy-three degrees Fahrenheit; |
"place on
land" includes anything resting on the bed or shore of Bahamian waters,
and anything afloat (other than a vessel) if it is anchored or attached to the
bed or shore of Bahamian waters; |
"port"
means any area in The Bahamas constituted and defined as a port area under the
Port Authorities Act, or constituted as a port or harbour under any other law; |
"port
authority", in relation to a port, means a port authority appointed for
the port under the Port Authorities Act or having control over the port under
any other law; |
"sea"
includes any estuary or arm of the sea; |
"section"
means a section of this Act; |
"special
drawing rights" means special drawing rights within the meaning of the
Articles of Agreement of the International Monetary Fund, which was established
by an agreement drawn up at the United Nations Conference held at Bretton
Woods, New Hampshire, U.S.A., in July, 1944; |
"the Shipping
Act" means the Merchant Shipping Act; |
"terminal"
means any installation or site for the storage of oil in bulk which is capable
of receiving oil from sea-borne transportation, including any facility situated
offshore and linked to any such site; |
"ton"
means a ton of 2,240 pounds; |
"transfer",
in relation to oil, means transfer in bulk. |
(2) In this Act,
except where the context otherwise requires or another meaning is specified,
"gross tonnage", "inspector", "master",
"registrar", "ship", "surveyor" and
"vessel" have the meanings assigned to them in the Shipping Act. |
(3) Any reference
in this Act, other than in section 11, to the discharge of oil or any mixture,
or to its being discharged, from a vessel, place or thing, except where the
reference is to its being discharged for a specified purpose, includes a
reference to the escape of the oil or mixture, or (as the case may be) to its
escaping, from that vessel, place or thing. |
(4) References in
this Act to the area of any country includes, in relation to The Bahamas,
Bahamian waters, and in relation to any other country, the territorial waters
of that country. |
(5) In relation to
any damage or cost resulting from the discharge of oil carried in a ship,
references in this Act 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. |
PART II
PREVENTION OF OIL POLLUTION |
3. (1) In this Part "harbour master" includes
a dock master or pier master and any person specially appointed by a port
authority for the purpose of enforcing the provisions of this Part in relation
to the port. | Interpretation of Part II. |
(2) For the
purposes of this Part relating to the discharge of oil or a mixture from a
vessel, any floating craft (other than a vessel) which is attached to a vessel
shall be treated as part of that vessel. |
4. (1) The provisions of Protocol I to and Annex I,
Annex II, Annex III and Annex V of the International Convention for the
Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978
relating thereto, together with amendments thereto in force on 1st January 2000
(in this Part and in the First Schedule referred to as "MARPOL
73/78") shall have the force of law. | Annexes I, II, III and V of MARPOL 73/78 shall have
the force of law in The Bahamas. |
(2) The First
Schedule shall have effect in connection with MARPOL 73/78, and subsection (1)
shall have effect subject to the provisions of that Schedule. |
(3) The Minister
may make such regulations as he considers appropriate to give effect to MARPOL
73/78. |
(4) If it appears
to the Minister that the Government of The Bahamas has agreed to any revision
of the International Convention for the Prevention of Pollution from Ships 1973
as modified by the Protocol of 1978 relating thereto he may- |
|
(i) make
such modifications to this section; |
(ii) make
such modifications to the First Schedule; |
(b) make such
regulations, |
as he
considers appropriate in consequence of the revision. |
(5) Nothing in any
modification made by virtue of subsection (4) shall affect any rights or
liabilities arising before the day on which the modification comes into force. |
5. (1) If any oil or mixture is discharged as mentioned
in the following paragraphs into Bahamian waters, then, subject to the
provisions of this Part and the First Schedule, the
following shall be guilty of an offence, that is to say- | Discharge of oil into Bahamian waters. |
(a) if the
discharge is from a vessel, the owner or master of the vessel, unless he proves
that the discharge took place and was caused as mentioned in paragraph (b) of
this subsection; |
(b) if the
discharge is from a vessel but takes place in the course of a transfer of oil
to or from another vessel or a place on land and is caused by the act or
omission of any person in charge of any apparatus in that other vessel or that
place, the owner or master of that other vessel or, as the case may be, the
occupier of that place; |
(c) if the
discharge is from a place on land, the occupier of that place, unless he proves
that the discharge was caused as mentioned in paragraph (d) of this subsection; |
(d) if the
discharge is from a place on land and is caused by the act of a person who is
in that place without the permission (express or implied) of the occupier, that
person; |
(e) if the
discharge takes place otherwise than as mentioned in the preceding paragraphs
and is the result of any operations for the exploration of the sea-bed and
subsoil or the exploitation of their natural resources, the person carrying on
the operations. |
(2) A person
guilty of an offence under this section shall be liable on conviction on
information to a fine not exceeding one hundred and twenty thousand dollars. |
6. (1) If any oil, or any mixture
thereof, is discharged into any part of the sea- | Discharge of certain oils from pipe-lines and
exploration, etc., areas. |
|
(b) (otherwise
than from a ship) as the result of any operation for the exploration of the
sea-bed and subsoil or the exploitation of their natural resources in a
designated area, |
then,
subject to the following provisions of this Part, the owner of the pipe-line
or, as the case may be, the person carrying on the operations, shall be guilty
of an offence unless the discharge was from a place in his occupation and he
proves that it was due to the act of a person who was there without his
permission (express or implied). |
(2) In this
section, "designated area" means any area of the sea-bed and subsoil
thereof in which a person is authorised by the Government to carry on any
operation relating to the exploration for, or exploitation of, natural gas or
oil. |
(3) Any person
guilty of an offence under this section shall be liable on conviction on
information to a fine not exceeding one hundred and twenty thousand dollars. |
7. (1) Where a person is charged with an offence under
section 4, or is charged with an offence under section 5 as the owner or master
of a vessel, it shall be a defence to prove that the oil or mixture was discharged
for the purpose of securing the safety of any vessel, or of preventing damage
to any vessel or cargo, or of saving life, unless the court is satisfied that
the discharge of the oil or mixture was not necessary for that purpose or was
not a reasonable step to take in the circumstances. | Defences of persons charged under s. 4 or s. 5. |
(2) Where a person
is charged as mentioned in subsection (1) of this section, it shall also be a
defence to prove- |
(a) that the
oil or mixture escaped in consequence of damage to the vessel, and that as soon
as practicable after the damage occurred all reasonable steps were taken for
preventing, or (if it could not be prevented) for stopping or reducing, the
escape of the oil or mixture; or |
(b) that the
oil or mixture escaped by reason of leakage, that neither the leakage nor any
delay in discovering it was due to any want of reasonable care, and that as
soon as practicable after the escape was discovered all reasonable steps were
taken for stopping or reducing it. |
8. (1) Where a person is charged, in respect of the
escape of any oil or mixture with an offence under section 5 or 6- | Defences of other persons charged under s. 5 or s. 6. |
(a) as the
occupier of a place on land; or |
(b) as a person
carrying on operations for the exploration of the sea-bed and subsoil or the
exploitation of their natural resources; or |
(c) as the
owner of a pipe-line, |
it shall be
a defence to prove that neither the escape nor any delay in discovering it was
due to any want of reasonable care and that as soon as practicable after it was
discovered all reasonable steps were taken for stopping or reducing it. |
(2) Where a person
is charged with an offence under section 5 in respect of the discharge of a
mixture from a place on land, it shall also, subject to subsection (3) of this
section, be a defence to prove- |
(a) that the
oil was contained in an effluent produced by operations for the refining of
oil; and |
(b) that it was
not reasonably practicable to dispose of the effluent otherwise than by
discharging it into the water concerned; and |
(c) that all
reasonably practicable steps had been taken for eliminating oil from the
effluent. |
(3) If it is
proved that, at a time to which the charge relates, the surface of the waters
into which a mixture was discharged from a place on land, or land adjacent to
those waters, was fouled by oil, subsection (2) of this section shall not apply
unless the court is satisfied that the fouling was not caused, or contributed
to, by oil contained in any effluent discharged at or before that time from
that place. |
9. (1) The powers exercisable by a port authority in
respect of any port shall include power to provide facilities for enabling
vessels using the port to discharge or deposit oil residues (in this section
referred to as "oil reception facilities"). | Facilities in port for disposal of oil residues. |
(2) Any power of a
port authority to provide oil reception facilities shall include power to join
with any other person in providing them, and references in this section to the
provision of oil reception facilities by a port authority shall be construed
accordingly; and any such power shall also include power to arrange for the
provision of such facilities by any other person. |
(3) A port
authority providing oil reception facilities or a person providing such
facilities by arrangement with a port authority, may make reasonable charges
for the use of the facilities, and may impose reasonable conditions in respect
of the use thereof. |
(4) Subject to the
following provisions of this section, any oil reception facilities provided by,
or by arrangement with, a port authority shall be open to all vessels using the
port on payment of any charges, and subject to compliance with any conditions,
imposed in accordance with subsection (3) of this section. |
(5) Where in the
case of any port it appears to the Minister, after consultation with the port
authority and with any organisation appearing to the Minister to be
representative of owners of Bahamian ships- |
(a) if the port
has oil reception facilities, that those facilities are inadequate; or |
(b) if the port
has no such facilities, that the port has need of such facilities, |
the Minister
may direct the port authority to provide, or arrange for the provision of, such
oil reception facilities as may be specified in the direction. |
(6)
Notwithstanding the provisions of subsection (4) of this section, a port
authority providing oil reception facilities, or a person providing such
facilities by arrangement with a port authority, shall not be obliged to make
those facilities available for use by tankers or for the reception of oil residues
discharged for the purpose of enabling a vessel to undergo repairs; and the
requirements of tankers, and the reception of oil residues so discharged, shall
be disregarded by the Minister in exercising his powers under subsection (5) of
this section. |
(7) Nothing in
this section shall be construed as requiring a port authority to allow
untreated ballast water (that is to say ballast water which contains oil and
has not been subjected to an effective process for separating the oil from the
water) to be discharged into any oil reception facilities provided by, or by
arrangement with, the authority and the Minister shall exercise his powers
under subsection (5) of this section accordingly. |
(8) Any port
authority failing to comply. with any direction given under subsection (5) of
this section within the period specified in the direction, or within any
extended period allowed by the Minister (whether before or after the end of the
period so specified), shall be guilty of an offence, and liable on summary conviction
to a fine not exceeding twenty-five dollars for each day during which the
default continues, from the day after the end of the period specified in the
direction, or any extended period allowed by the Minister, as the case may be,
until the last day before that on which the facilities are provided in
accordance with the direction. |
(9) Subsections
(1), (2), (5) and (8) of this section shall have effect in relation to
arrangements for disposing of oil residues discharged or deposited by vessels
using a port's oil reception facilities, and to the making of such
arrangements, as those subsections have effect in relation to oil reception
facilities and the provision of such facilities. |
10. (1) No oil shall be transferred between sunset and
sunrise to or from a vessel in any port unless the requisite notice has been
given in accordance with this section or the transfer is for the purposes of a
fire brigade. | Restrictions on transfer of oil at night. |
(2) A general
notice may be given to the harbour master of a port that transfers of oil
between sunset and sunrise will be frequently carried out at a place in the
port within such period, not ending later than twelve months after the date on
which the notice is given, as is specified in the notice; and if such a notice
is given it shall be the requisite notice for the purposes of this section as
regards transfers of oil at that place within the period specified in the
notice. |
(3) Subject to
subsection (2) of this section, the requisite notice for the purposes of this
section shall be a notice given to the harbour master not less than three hours
nor more than ninety-six hours before the transfer of oil begins. |
(4) In the case of
a port which has no harbour master, references in this section to the harbour
master shall be construed as references to the port authority. |
(5) If any oil is
transferred to or from a vessel in contravention of this section, the master of
the vessel, and, if the oil is transferred from or to a place on land, the
occupier of that place, shall be guilty of an offence and liable on summary
conviction to a fine not exceeding two hundred and fifty dollars. |
11. (1) If any oil or mixture- | Duty to report discharge of oil into waters of ports. |
(a) is
discharged from a vessel into the waters of a port; or |
(b) is found to
be escaping or to have escaped from a vessel into any such waters; or |
(c) is found to
be escaping or to have escaped into any such waters from a place on land, |
the owner or
master of the vessel, or the occupier of the place on land, as the case may be,
shall forthwith report the occurrence to the harbour master, or, if the port
has no harbour master, to the port authority, and such person or authority
shall report the discharge by the quickest possible means to the Director and
to the Minister of Health or his representative. |
(2) A report made
under subsection (1) of this section by the owner or master of a vessel shall
state whether the occurrence falls within paragraph (a) or paragraph (b) of
that subsection. |
(3) If a person
fails to make a report as required by this section he shall be guilty of an
offence and liable on summary conviction to a fine not exceeding five hundred
dollars. |
PART III
SHIPPING CASUALTIES |
12. (1) The powers conferred by this section shall be
exercisable where- | Shipping casualties. |
(a) an accident
has occurred to or in a ship; and |
(b) in the
opinion of the Minister oil from the ship will or may cause pollution on a
large scale in The Bahamas or in Bahamian waters; and |
(c) in the
opinion of the Minister the use of the powers conferred by this section is
urgently needed. |
(2) For the purpose
of preventing or reducing oil pollution, or the risk of oil pollution, the
Minister may give directions as respects the ship or its cargo- |
(a) to the
owner of the ship, or to any person in possession of the ship; or |
(b) to the
master of the ship; or |
(c) to any
salvor in possession of the ship, or to any person who is the servant or agent
of any salvor in possession of the ship, and who is in charge of the salvage
operation. |
(3) Directions
under subsection (2) of this section may require the person to whom they are
given to take, or refrain from taking any action of any kind whatsoever, and
without prejudice to the generality of the preceding provisions of this
subsection the directions may require- |
(a) that the
ship is to be, or is not to be, moved, or is to be moved to a specified place,
or is to be removed from a specified area or locality; or |
(b) that the
ship is not to be moved to a specified place or area, or over a specified
route; or |
(c) that any
oil or other cargo is to be, or is not to be, unloaded or discharged; or |
(d) that
specified salvage measures are to be, or not to be, taken. |
(4) If in the
opinion of the Minister the powers conferred by subsection (2) of this section
are, or have proved to be, inadequate for the purpose, the Minister may, for
the purpose of preventing or reducing oil pollution, or the risk of oil
pollution, take, as respects the ship or its cargo, any action of any kind
whatsoever, and without prejudice to the generality of the preceding provisions
of the subsection the Minister may- |
(a) take any
such action as he has power to require to be taken by a direction under this
section; |
(b) undertake
operations for the sinking or destruction of the ship, or any part of it, of a
kind which is not within the means of any person to whom he can give
directions; |
(c) undertake
operations which involve the taking over of control of the ship. |
(5) The powers of
the Minister under subsection (4) of this section shall also be exercisable by
such persons as may be authorised in writing in that behalf by the Minister. |
(6) Every person
concerned with compliance with directions given, or with action taken, under
this section shall use his best endeavours to avoid any risk to human life. |
(7) The provisions
of this section and of section 16 are without prejudice to any right or powers
of the Government exercisable apart from those sections whether under
international law or otherwise. |
(8) It is hereby
declared that any action taken as respects a ship which is under arrest or as
respects the cargo of such a ship, being action duly taken in pursuance of a
direction given under this section, or being any action taken under subsection
(4) or (5) of this section- |
(a) does not
constitute contempt of court; and |
(b) does not in
any circumstances make a person who arrested the ship or who has it in charge
after arrest liable in any civil proceedings. |
(9) In this
section, unless the context otherwise requires- |
"accident"
includes the loss, stranding, abandonment of or damage to a ship; and |
"specified",
in relation to a direction under this section, means specified by the
direction. |
13. (1) If any action duly taken by a person in
pursuance of a direction given to him under section 12, or any action taken
under subsection (4) or (5) of that section- | Right to recover in respect of unreasonable loss or
damage. |
(a) was not
reasonably necessary to prevent or reduce oil pollution, or risk of oil pollution;
or |
(b) was such
that the good it did or was likely to do was disproportionately less than the
expenses incurred, or damage suffered as a result of the action, |
a person
incurring expenses or suffering damage as a result of, or by himself taking,
the action shall be entitled to recover compensation from the Government. |
(2) In considering
whether subsection (1) of this section applies, account shall be taken of- |
(a) the extent
and risk of oil pollution if the action had not been taken; |
(b) the likelihood
of the action being effective; and |
(c) the extent
of the damage which has been caused by the action. |
(3) Any reference
in this section to the taking of any action includes a reference to a
compliance with a direction not to take some specified action. |
(4) The Admiralty
jurisdiction of the Supreme Court shall include jurisdiction to hear and
determine any claim arising under this section. |
14. (1) If any person to whom a direction is duly
given under section 12 contravenes any requirement of the direction, he shall
be guilty of an offence. | Offences in relation to s. 12. |
(2) If a person
wilfully obstructs any person who is- |
(a) acting on
behalf of the Minister in connection with the giving or service of a direction
under section 12; |
(b) acting in
compliance with a direction under that section; or |
(c) acting
under subsection (4) or (5) of that section, |
he shall be
guilty of an offence. |
(3) In proceedings
for an offence under subsection (1) of this section, it shall be a defence for
the accused to prove that he has used all due diligence to ensure compliance
with the direction, or that he had reasonable cause for believing that
compliance with the direction would have involved a serious risk to human life. |
(4) A person
guilty of an offence under this section shall be liable on conviction on
information to a fine not exceeding one hundred and twenty thousand dollars. |
15. (1) If the Minister is satisfied that a company or
other body is not one to which any provision of a law relating to the service
of notices on a company or other body applies so as to authorise the service of
a direction on that body under such provision, he may give a direction under
section 12- | Service of directions under s. 12. |
(a) to that
body, as the owner of, or the person in possession of, a ship, by serving the
direction on the master of the ship; or |
(b) to that
body, as a salvor, by serving the direction on the person in charge of the
salvage operations. |
(2) For the
purpose of giving or serving a direction under section 15 to or on any person
on a ship, a person acting an behalf of the Minister shall have the right to go
on board the ship. |
16. (1) The Minister may by Order published in the Gazette
provide that sections 12 to 15, together with any other provisions of this Act,
shall apply to a ship- | Application of sections 12 to 15 to certain foreign
and other ships. |
(a) which is
not a Bahamian ship; and |
(b) which is
for the time being outside Bahamian waters, |
in such
cases and circumstances as may be specified in the Order, and subject to such
exceptions, adaptations and modifications, if any, as may be so specified. |
(2) An order under
subsection (1) of this section may contain such transitional and other consequential
provisions as appear to the Minister to be expedient. |
(3) Except as
provided by an order under subsection (1) of this section, no direction under
section 12 shall apply to a ship which is not a Bahamian ship and which is for
the time being outside Bahamian waters, and no action shall be taken under
subsection (4) or (5) of section 12 of this Act as respects any such ship. |
(4) No direction
under section 12 of this Act shall apply to any Government ship, and no action
shall be taken under subsection (4) or (5) of that section as respects any such
vessel or ship. |
PART IV
CIVIL LIABILITY FOR OIL POLLUTION |
17. (1) The provisions of Articles I to XI of and the
Annex to the International Convention on Civil Liability for Oil Pollution
Damage, 1992 done at London on 27 November 1992 (in this Part and in the Second
Schedule referred to as "1992 Liability Convention") shall have the
force of law. | International Convention on Civil Liability for Oil
Pollution Damage, 1992, to have the force of law. |
(2) The provisions
of the Second Schedule shall have effect in connection with 1992 Liability
Convention, and subsection (1) shall have effect subject to those provisions. |
(3) The provisions
of the Articles 1 to 36 quater and the Annex to the International
Convention on the Establishment of an International Fund for Compensation for
Oil Pollution Damage, 1992 done at London on 27 November 1992 (in this Part and
in the Second Schedule referred to as "1992 Oil Fund Convention")
shall have the force of law. | International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage, 1992, to have the
force of law. |
(4) The provisions
of the Second Schedule shall have effect in connection with 1992 Oil Fund
Convention, and subsection (3) shall have effect subject to those provisions. |
(5) If it appears
to the Minister that the Government of The Bahamas has agreed to any revision
of the International Convention on Civil Liability for Oil Pollution Damage,
1992 or the International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, 1992 he may- |
|
(i) make
such modifications to this section; |
(ii) make
such modifications to the Second Schedule; |
(b) make such
regulations he considers appropriate in consequence of the revision. |
(6) Nothing in any
modification made by virtue of subsection (5) shall affect any rights or
liabilities arising before the day on which the modification comes into force. |
PART V
ENFORCEMENT |
18. (1) The Minister may appoint any duly qualified
person to report to him- | Powers of inspection. |
(a) whether the
prohibitions, restrictions and obligations imposed by virtue of this Act
(including prohibitions so imposed by the creation of offences under any
provision of this Act other than section 6) have been complied with; |
(b) what
measures
have been taken to prevent the escape of oil and mixtures; |
(c) whether the
oil reception facilities provided in ports are adequate, |
and any such
person may be so appointed to report either in a particular case or in a class
of cases specified in his appointment. |
(2) Every
inspector shall be taken to be a person appointed generally under the preceding
subsection to report to the Minister in every kind of case falling within that
subsection. |
(3) Section 283 of
the Merchant Shipping Act (powers of inspectors) shall apply to persons
appointed or taken to be appointed under subsection (1) of this section as it
applies to inspectors referred to in that section and shall, as so applying,
have effect as if- |
(a) in
paragraph (a) of subsection (1) of that section, the reference to a ship
included any vessel, and the reference to that Act were a reference to this Act
and any regulations made under this Act; and |
(b) any power
of inspection under that section included power to inspect any apparatus used
for transferring oil. |
(4) Any power of
an inspector applied by subsection (3) of this section to inspect a vessel
shall include power to test any equipment with which the vessel is required to
be fitted. |
(5) Any power of
an inspector applied by subsection (3) of this section to require the
production of any oil record book required to be carried or records required to
be kept shall include power to copy any entry therein and
require the master to certify the copy as a true copy of the entry, and in
section 283 of the Merchant Shipping Act, as so applied, the reference to
making a declaration shall be construed as a reference to the certification of
such a copy. |
(6) Without
prejudice to any powers exercisable by virtue of the preceding provisions of
this section, in the case of a vessel which is for the time being in a port the
harbour master, and any other person appointed or taken to be appointed by the
Minister under this section (either generally or in relation to a particular
vessel), shall have power- |
(a) to go on
board and inspect the vessel or any part thereof, or any of the machinery,
boats, equipment or articles on board the vessel, for the purpose of
ascertaining the circumstances relating to any alleged discharge of oil or a
mixture from the vessel into the waters of the port. |
(b) to require
the production of any oil record book required to be carried or records to be
kept; and |
(c) to copy any
entry in any such book or record and require the master to certify the copy as
a true copy of the entry. |
(7) A person
exercising any powers conferred by subsection (6) of this section shall not
unnecessarily detain or delay the vessel from proceeding on any voyage. |
(8) If any person
fails to comply with any requirement duly made in pursuance of paragraph (b) or
paragraph (c) of subsection (6) of this section, he shall be guilty of an
offence, and liable on summary conviction to a fine not exceeding
five thousand dollars, and if any person wilfully obstructs a person acting in
the exercise of any power conferred by virtue of this section, he shall be
guilty of an offence and liable on summary conviction to a fine not exceeding
five thousand dollars. |
19. (1) Where, immediately before the date on which
(apart from this subsection) the time for bringing proceedings for an offence
under this Act would expire, the person to be charged is outside The Bahamas,
the time for bringing proceedings shall be extended until the end of the period
of two months beginning with the date on which he next enters The Bahamas. | Proceedings. |
(2) Proceedings
for any offence under this Act may (without prejudice to any jurisdiction
exercisable apart from this subsection) be taken against a person at any place
at which he is for the time being. |
(3) Proceedings
for an offence under section 6 may be brought only by or with the consent of
the Attorney-General, and any such proceedings may be taken, and the offence
may for all incidental purposes be treated as having been committed, in any
place in The Bahamas. |
20. (1) Where a fine imposed by a court in proceedings
against the owner or master of a vessel for an offence under this Act is not paid
at the time ordered by the court, the court shall, in addition to any other
powers for enforcing payment, have power to direct the amount remaining unpaid
to be levied by distress and sale of the vessel, her tackle, furniture and
apparel. | Enforcement and application of fines. |
(2) Where a person
is convicted of an offence under section 5 or the First
Schedule and the court imposes a fine in respect of the offence, then if it
appears to the court that any person has incurred, or will incur, expenses in
removing any pollution, or making good any damage, which is attributable to the
offence, the court may order the whole or part of the fine to be paid to that
person for or towards defraying those expenses. |
PART VI
SUPPLEMENTAL |
21. Where an offence under this Act, or any
regulations made thereunder, which has been committed by a body corporate, is
proved to have been committed with the consent or connivance of, or to be
attributable to any neglect on the part of, a director, manager, secretary or
other similar officer of the body corporate, or any person who was purporting
to act in any such capacity, he, as well as the body corporate, shall be guilty
of that offence and shall be liable to be proceeded against and punished
accordingly. | Offences by bodies corporate. |
22. Any power conferred by this Act or by regulations
made thereunder to test equipment on board a vessel shall be construed as
including a power to require persons on board the vessel to carry out such work
as may be requisite for the purpose of testing the equipment, and any
provisions of this Act or such regulations as to submitting equipment for
testing shall be construed accordingly. | Testing of equipment. |
FIRST SCHEDULE (Section 4) |
PROVISIONS HAVING
EFFECT IN CONNECTION WITH MARPOL 73/78 |
1. (1) For
the purposes of MARPOL 73/78 "Administration" shall in reference to
The Bahamas mean the Minister, the Director or The Bahamas Maritime Authority. | Meaning of administration. |
(2) For the
purposes of this Schedule and MARPOL 73/78 "Contracting Government"
shall in reference to The Bahamas, where the context allows, means the Minister,
the Director or The Bahamas Maritime Authority. | Meaning of contracting
government. |
2.
Notwithstanding anything to the contrary in Article 3 of the International
Convention for the Prevention of Pollution from Ships 1973, MARPOL 73/78 shall
apply mutatis mutandis to ships entitled to fly the flag of a country to
which that Convention as modified by the Protocol of 1978 relating thereto does
not apply while such ships are in The Bahamas and engaged on international
voyages. | Application of MARPOL 73/78 to non-Convention ships
while in The Bahamas. |
3. The
Minister may by Order certify that any State specified in the Order is a party
to the International Convention for the Prevention of Pollution from Ships 1973
as modified by the Protocol of 1978 in respect of a specified country or
territory and the Order shall, subject to the provisions of any subsequent
Order made for those purposes, be conclusive evidence that the State is a
Contracting Government to that Convention as so modified in respect of that
country or territory. | Countries and territories to which the Convention
applies. |
4. The
Minister may for classes of ships or individual ships grant, on such terms (if
any) as he may specify, exemptions from all or any of the provisions of MARPOL
73/78 as he may specify, and may, subject to giving reasonable notice, alter or
cancel any such exemption. | Exemptions. |
5. In any
case where a ship does not comply with MARPOL 73/78 it may be detained,
provided that the ship shall not be unreasonably detained or delayed. | Detentions. |
6. In the
event of an incident referred to in Protocol I in MARPOL 73/78 the same report
as is required by that Protocol shall also be made to the Administration as is
to be made to the Coastal State. | Reporting pollution and other incidents. |
7. (1) It
shall be the duty of the owner and the master of the ship to comply with and
ensure compliance with the provisions of MARPOL 73/78. | General compliance, duty and offences. |
(2) It shall be
the duty of any person- |
(a) upon whom
an obligation is imposed by MARPOL 73/78; or |
(b) to whom a
direction is given in pursuance of MARPOL 73/78 (whether under subparagraph (1)
or otherwise), |
to comply or
ensure compliance with MARPOL 73/78. |
(3) Where any
natural or legal person other than a person specified in subparagraph (1) has
control of the matter to which the subparagraph relates because he has
responsibility for the operation of the ship, then any duty imposed by that
subparagraph shall extend to the person who has control of that matter. |
(4)
Where a person specified in subparagraph (1), (2) or (3) contravenes that
subparagraph, that person is guilty of an offence and is liable- |
(a) on summary
conviction to a fine of five thousand dollars; or |
(b) on
conviction on information to a fine of one hundred and twenty thousand dollars. |
8. No
person shall- | Fraud, misuse of certificates, etc. |
(a) intentionally
alter a certificate issued for the purposes of MARPOL 73/78; |
(b) falsely
make a certificate referred to in MARPOL 73/78; |
(c) in
connection with any survey required by MARPOL 73/78, knowingly or recklessly
furnish false information; |
(d) with intent
to deceive, use, lend, or allow to be used by another, a certificate referred
to in MARPOL 73/78; |
(e) fail to
surrender a certificate to be surrendered for the purposes of MARPOL 73/78. |
9. Before a
ship proceeds to sea from any port in The Bahamas, the master of that ship
shall produce to a customs officer from whom a clearance for the ship is
demanded for an international voyage- | Customs clearance. |
(a) in respect
of a ship to which MARPOL 73/78 applies, certificates required to be issued to
such a ship complying with the relevant provisions of the MARPOL 73/78, and in
the case of any qualified certificate, the corresponding valid exemption
certificate; |
(b) in respect
of a Bahamian ship required to possess a local safety certificate, a valid
local safety certificate. |
SECOND SCHEDULE (Section 17) [i]* |
PROVISIONS
HAVING EFFECT IN CONNECTION WITH THE 1992 LIABILITY CONVENTION AND THE 1992 OIL
FUND CONVENTION |
1.
(1) Where the
registry of a Bahamian ship is suspended and that ship is registered in a
foreign country for the duration of a bareboat charter in accordance with
section 25 of the Merchant Shipping Act, notwithstanding anything to the
contrary in Article I of the 1992 Liability Convention (or Article I of the
1992 Oil Fund Convention), the "State of the ship's registry" is such
foreign country. | Interpretation.
Meaning of state of ship's registry. |
(2) In this
Schedule "Administration" means the Minister, the Director or The
Bahamas Maritime Authority. | Meaning of Administration. |
Compulsory
Insurance |
2. (1) This
paragraph applies to any ship carrying in bulk cargo of more than 2,000 tons of
persistent hydrocarbon mineral oil. | Compulsory insurance against liability for pollution. |
(2) A ship shall
not enter or leave a port in The Bahamas or arrive at or leave an offshore
terminal in the territorial sea of The Bahamas nor, if the ship is a Bahamian
ship, 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 subparagraph (3). |
(3) (a) The
certificate must show that there is in force in respect of that ship a contract
of insurance or other security satisfying the requirements of Article VII of
the 1992 Liability Convention. |
(b) The certificate
must be- |
(i) if the
ship is a Bahamian ship, a certificate issued by the Administration; |
(ii) if the
ship is registered in a country to which the Liability Convention applies other
than The Bahamas, a certificate issued by or under the authority of the
government of that country; |
(iii) if the
ship is registered in a country which is not a country to which the Liability
Convention applies, a certificate issued by the Administration or by or under
the authority of the government of any country to which the Liability
Convention applies other than The Bahamas. |
(4) A certificate
required by this paragraph to be in force in respect of a ship shall be carried
in the ship and shall be produced on demand by the master to any customs
officer or the Administration and if the ship is a Bahamian ship also to any
registrar, inspector, or consular officer. |
(5)
If any 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
subparagraph (2), the master and owner shall be guilty of an offence and liable
on conviction on information to a fine of $120,000. |
(6) If a ship
fails to carry or the master of a ship fails to produce, a certificate as
required by subparagraph (4), the master shall be guilty of an offence and
liable on summary conviction to a fine not exceeding $2,500. |
(7) If a ship
attempts to leave a port in The Bahamas in contravention of this paragraph the
ship may be detained. |
(8) Nothing in
preceding provisions of this paragraph 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. |
(9) In relation to
a ship owned by a State and for the time being used for commercial purposes it
shall be sufficient compliance with subparagraph (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 1992 Liability Convention will be met up to the limit
prescribed by Article V of the 1992 Liability Convention. |
3. (1) If
the Administration is satisfied on application for a certificate mentioned in
paragraph 2 in respect of a Bahamian ship or a ship registered in any country
to which the 1992 Liability Convention does not apply, 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 Article
VII of the 1992 Liability Convention, the Administration may issue such a certificate
to the owner. | Issue of certificate by the administration. |
(2) If the
Administration is of the opinion that there is a doubt whether the person
providing 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 the 1992 Liability Convention in all circumstances, the
Administration may refuse the certificate. |
4. (1)
Where the person to whom a certificate has been issued under paragraph 2 ceases
to be the owner of the ship to which the certificate relates the certificate
shall cease to be valid and he shall immediately deliver up the certificate to
the Administration for cancellation. | Cancellation and delivery up of certificates. |
(2) Where, at any
time while a certificate issued under paragraph 3 is in force, it is
established in any legal proceedings that the contract of insurance or other
security in respect of which the certificate was issued is or may be treated as
invalid, the certificate may be cancelled by the Administration and, if so
cancelled, shall on demand immediately be delivered up to the Administration by
the person to whom the certificate was issued. |
(3) Where, at any
time while a certificate issued under paragraph 3 is in force, circumstances
arise in relation to the insurer or guarantor named in the certificate (or
where more than one is so named, to any of them) such that, if the certificate
were applied for at that time, the Administration would be entitled to refuse
the application under subparagraph (2) of paragraph 3 the certificate may be
cancelled by the Administration and, if so cancelled, shall on demand
immediately be delivered up to the Administration by the person to whom the
certificate was issued. |
Conversion of
Special Drawing Rights |
5. (1) For
the purpose of converting an amount from special drawing rights into dollars
where no sum in dollars has been fixed by the International Monetary Fund as
being equivalent of one Special Drawing Right for any relevant date referred to
in the 1992 Liability Convention and the 1992 Oil Fund Convention, the last day
before such relevant date for which a sum has been so fixed shall be used to
determine the relevant amount. | Conversion of special drawing rights. |
(2) (a) A
certificate by or on behalf of the Central Bank stating that a particular sum
in dollars had been fixed for a relevant date, or that no sum had been fixed
for such relevant date but a particular sum had been fixed for a day which was
the last day for which a sum had been fixed prior to such relevant date, shall
be conclusive evidence of those matters for the purposes of this subparagraph,
the 1992 Liability Convention or the 1992 Oil Fund Contention; |
(b) 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. |
6. The
Contributory Negligence Act shall apply in relation to any damage or cost for
which a person is liable under the 1992 Liability Convention, but which is not
due to his fault, as if it were due to his fault: Provided, however, than in
the case of any conflict between the 1992 Liability Convention and the
preceding provisions of this paragraph or the Contributory Negligence Act, the
1992 Liability Convention shall be decisive. | Application of Contributory Negligence Act. |
Contributions to
Fund |
7. For the
purposes of Article 10(2) of the 1992 Oil Fund Convention an "Associated
person" is- | Definition of associated person. |
(a) where the
person referred to in Article 10 (1) is a member of a group of companies, all
the other members of that group; |
(b) where two
or more companies have been amalgamated into a single company and the person
referred to in Article 10 (1) is one such company, the other companies
amalgamated; |
(c) any
subsidiary company of the person referred to in Article 10 (1). |
8. (1) For
the purposes of transmitting to the International Oil Pollution Compensation Fund
the names and addresses of the persons who are liable to make contributions to
the Fund for any year, and the quantity of oil in respect of which they are so
liable, the Administration may require any person engaged in producing,
importing, receiving, treating, distributing, or transporting oil to furnish
such information as may be specified. | Power to obtain information. |
(2) The
Administration may require a company to give such information as may be
required to ascertain whether its liability is affected by the 1992 Oil Fund
Convention. |
(3) The
Administration may specify a way in which and a time within which such
information is to be supplied. |
(4) In proceedings
by the Fund against any person to recover any amount due under the 1992 Oil
Fund Convention, particulars contained in any list transmitted by the
Administration to the Fund shall, so far as those particulars are based on
information obtained under this paragraph, be admissible as evidence of the
facts stated in the list; and so far as particulars which are so admissible are
based on information given by the person against whom the proceedings are
brought, those particulars shall be presumed to be accurate until the contrary
is proved. |
Jurisdiction of
the Supreme Court and Registration of Foreign Judgments |
9. For the
purposes of Article IX of the 1992 Liability Convention, an action brought in
The Bahamas under paragraph 1 of that Article for pollution damage caused- | Action for pollution damage brought in Supreme court. |
|
(b) in the
territorial waters of The Bahamas; or |
(c) in the
exclusive economic zone of The Bahamas established in accordance with
international law, or in absence of the establishment of such a zone in an area
beyond and adjacent to the territorial seas of The Bahamas determined by the
Government of The Bahamas in accordance with international law and extending
not more than 200 nautical miles from the baselines from which the breadth of
the territorial sea of The Bahamas is measured, |
may be
brought in the Supreme Court of The Bahamas. |
10. (1) The
admiralty jurisdiction of the Supreme Court of The Bahamas shall extend to- | Extension of admiralty jurisdiction of the Supreme
Court. |
(a) actions for
compensation under the 1992 Liability Convention; and |
(b) actions
(referred to in Article 7(1) of the 1992 Oil Fund Convention) against the
International Oil Pollution Compensation Fund 1992. |
11. (1)
The Foreign Judgments (Reciprocal Enforcement) Act, 1933, shall apply, whether
or not it would so apply apart from this subparagraph, to any judgment given
by- | Application of the Foreign Judgments (Reciprocal
Enforcement) Act, 1933. |
(a) a court in
a country to which the 1992 Liability Convention applies to enforce a claim in
respect of a liability incurred under any provision implementing the 1992
Liability Convention and in its application to such a judgment that Act shall
have with the omission of sections 4(2) and 4(3) of the Act; |
(b) a court in
a country to which the 1992 Oil Fund Convention applies to enforce a claim in
respect of a liability incurred under any provision implementing the 1992 Oil
Fund Convention and in its application to such a judgment that Act shall have
with the omission of sections 4(2) and 4(3) of the Act. |
(2) No steps shall
be taken to enforce a judgment referred to in subparagraph (1)(b) unless and
until the court in which the judgment is registered gives leave to enforce it
and- |
(a) the Fund
has notified such court either that the amount of the claim is not to be
reduced under paragraph 4 of Article 4 of the Oil Fund Convention or that it is
to be reduced to a specified amount; |
(b) in the
latter case, the judgment shall be enforceable only for the reduced amount. |