Hong Kong Ordinances

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

Liability of the Fund for pollution damage

(Past version on 30/06/1997).

(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 incident causing the damage- (Amended 46 of 1997 s. 19)

        (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)  an incident has caused pollution damage both in Hong Kong and in the
        area of another Fund Convention country; and (Amended 46 of 1997 s.
        19)

   (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) Subject to subsection (8A), 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.
        (Amended 46 of 1997 s. 19)

(8) Subject to subsection (8A), where the liability under section 6 in respect
of the pollution damage is limited to any extent by subsection

(4) of that section, the Fund shall be exonerated to the same extent.
(Replaced 46 of 1997 s. 19)

(8A) Subsections (7) and (8) shall not apply where the pollution  damage only
consists of the cost of preventive measures or any damage caused by such
measures. (Added 46 of 1997 s. 19)

(9) The Fund's liability under this section shall be subject to the limits
imposed by paragraphs 4 and 5 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. (Amended 46 of 1997 s. 19)

(10) A certificate purporting to be signed by the Director of the Fund stating
that subparagraph (c) of paragraph 4 of Article 4 of the Fund  Convention is
applicable to any claim under this section shall be conclusive evidence for
the purposes of this Part that it is so applicable, and such a certificate
shall be admissible in evidence without proof of the signature thereon.
(Replaced 46 of 1997 s. 19)

(11) For the purpose of giving effect to paragraphs 4 and 5 of Article 4 of
the Fund Convention a court giving judgment against the Fund in legal
proceedings under this section shall notify the Fund to that effect, and-
(Amended 46 of 1997 s. 19)

   (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.

(12) Any steps taken to obtain payment of an amount or a reduced amount in
pursuance of such a judgment as is mentioned in subsection (11) shall be steps
to obtain payment in Hong Kong dollars, and-

   (a)  for the purposes of converting such an amount from special 
        drawing rights into Hong Kong dollars, shall be treated as equal to
        such a sum in Hong Kong dollars as the International Monetary Fund has
        fixed as being the equivalent of one special drawing right for-

        (i)    the relevant day, namely the day on which the Assembly of the
               Fund decides the date for the first payment of compensation in
               respect of the incident; or

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

   (b)  a certificate given by the Monetary Authority under section  22 (2),
        shall be conclusive evidence of those equivalent amounts for the
        purposes of this Part. (Added 46 of 1997 s. 19) (Enacted 1990)