Hong Kong Ordinances

MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION) ORDINANCE - SECT 25

Liability of the Fund for pollution damage

Caution: This is a past version. See the current version here.

(1) The Fund shall be liable for pollution damage in Hong Kong if the person
suffering the damage has been unable to obtain full compensation under
section 6-

   (a)  because the discharge or escape causing the damage-

        (i)    resulted from an exceptional, inevitable and irresistible
               natural phenomenon; or

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

        (iii)  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,

(and because liability is accordingly wholly displaced by section 7);or

   (b)  because the owner or guarantor who is liable for the damage is not
        able to meet his obligations in full in respect of that liability; or

   (c)  because the damage exceeds the liability under section 6 as limited by
        section 9.

(2) Where-

   (a)  a discharge or escape has caused pollution damage both in Hong  Kong
        and in the area of another Fund Convention country; and

   (b)  proceedings under the Liability Convention for compensation for the
        pollution damage have been brought in a country which is not a Fund 
        Convention country or in Hong Kong, subsection (1) shall be construed
        and have effect as regards that pollution damage as if for "Hong Kong"
        there were substituted "the area of a Fund Convention country".

(3) Where the incident has caused pollution damage both in Hong  Kong and in
the area of another country in respect of which the Liability  Convention is
in force, references in this section to any of the provisions of Part II shall
include references to the corresponding provisions of the law of any country
giving effect to the Liability  Convention.

(4) For the purposes of this section an owner or guarantor is not able to meet
his obligations if the obligations have not been met after all reasonable
steps to pursue the legal remedies available have been taken.

(5) Expenses reasonably incurred, and sacrifices reasonably made, by the owner
voluntarily to prevent or reduce pollution damage shall be treated as
pollution damage for the purposes of this section, and accordingly he shall be
in the same position with respect to claims against the Fund under this
section as if he had established a claim in respect of liability under
section 6.

(6) The Fund shall incur no liability under this section if-

   (a)  it proves that the pollution damage-

        (i)    resulted from an act of war, hostilities, civil war or
               insurrection; or

        (ii)   was caused by oil which escaped or was discharged from a
               warship or other ship owned or operated by a State and used, at
               the time of the occurrence, only on government non-commercial
               service; or

   (b)  a claimant cannot prove that the damage resulted from an occurrence
        involving a ship identified by him, or involving 2 or more ships one
        of which is identified by him.

(7) If the Fund proves that the pollution damage resulted wholly or partly-

   (a)  from anything done or left undone with intent to cause damage by the
        person who suffered the damage; or

   (b)  from the negligence of that person, the Fund may be exonerated wholly
        or partly from its liability to pay compensation to that person, but
        this subsection shall not apply to a claim in respect of expenses
        incurred or sacrifices made voluntarily to prevent or reduce
        pollution damage.

(8) Where the liability under section 6 is limited to any extent by subsection
(4) of that section, the Fund shall be exonerated to the same extent.

(9) The Fund's liability under this section shall be subject to the limits
imposed by paragraphs 4, 5 and 6 of Article 4 of the Fund  Convention which
impose an overall liability on the liabilities of the owner and of the Fund,
and the texts of which are set out in Schedule 1.

(10) Evidence of any instrument issued by any organ of the Fund or of any
document in the custody of the Fund, or any entry in or extract from such a
document, may be given in any legal proceedings by production of a copy
certified as a true copy by an official of the Fund; and any document
purporting to be such a copy shall be received in evidence without proof of
the official position or signature of the person signing the certificate.

(11) For the purpose of giving effect to paragraphs 4, 5 and 6 of Article 4 of
the Fund Convention a court giving judgment against the Fund in legal
proceedings under this section shall notify the Fund to that effect, and-

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

   (b)  that leave shall not be given unless and until the Fund notifies the
        court either that the amount of the claim is not to be reduced under
        paragraph 4 of Article 4 of the Fund Convention, or that it is to be
        reduced to a specified amount; and

   (c)  in the latter case the judgment shall be enforceable only for the
        reduced amount. (Enacted 1990)