Convenzione
internazionale sulla responsabilità e il risarcimento dei
danni
connessi al trasporto di merci pericolose e tossiche per mare
(Convenzione HNS), firmata a Londra il 3 maggio 1996.
INTERNATIONAL
CONVENTION ON LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION WITH
THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES BY SEA, 1996
(HNS Convention)
(London,
3 May 1996)
THE STATES PARTIES TO THE PRESENT CONVENTION,
CONSCIOUS of the dangers posed by the
worldwide carriage by sea of
hazardous and noxious substances,
CONVINCED of the need to ensure that
adequate,
prompt and effective
compensation is available to persons who suffer damage caused by
incidents
in connection with the carriage by sea of such substances,
DESIRING to adopt uniform international
rules
and procedures for
determining questions of liability and compensation in respect of such
damage,
CONSIDERING that the economic consequences
of
damage caused by the
carriage by sea of hazardous and noxious substances should be shared by
the shipping industry and the cargo interests involved,
HAVE AGREED as follows:
Chapter I
GENERAL PROVISIONS
Article 1
Definitions
For the purposes of this Convention:
1 "Ship" means any seagoing vessel and seaborne craft,
of any type
whatsoever.
2 "Person" means any individual or partnership or any
public or private
body, whether corporate or not, including a State or any of its
constituent subdivisions.
3 "Owner" means the person or persons registered as
the
owner of the ship
or, in the absence of registration, the person or persons owning the
ship.
However, in the case of a ship owned by a State and operated by a
company
which in that State is registered as the ship's operator, "owner" shall
mean such company.
4 "Receiver" means either:
(a) the person who
physically receives contributing cargo discharged in
the ports and terminals of a State Party; provided that if at the time
of
receipt the person who physically receives the cargo acts as an agent
for
another who is subject to the jurisdiction of any State Party, then the
principal shall be deemed to be the receiver, if the agent discloses
the
principal to the HNS Fund; or
(b) the person in
the
State Party who in accordance with the national law
of that State Party is deemed to be the receiver of contributing cargo
discharged in the ports and terminals of a State Party, provided that
the
total contributing cargo received according to such national law is
substantially the same as that which would have been received under (a).
5 "Hazardous and noxious substances" (HNS) means:
(a) any substances,
materials and articles carried on board a ship as
cargo, referred to in (i) to (vii) below:
(i) oils carried in
bulk listed in appendix I of Annex I to the
International Convention for the Prevention of Pollution from Ships,
1973,
as modified by the Protocol of 1978 relating thereto, as amended;
(ii) noxious liquid
substances carried in bulk referred to in appendix II
of Annex II to the International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the Protocol of 1978
relating
thereto, as amended, and those substances and mixtures provisionally
categorized as falling in pollution category A, B, C or D in accordance
with regulation 3(4) of the said Annex II;
(iii) dangerous
liquid
substances carried in bulk listed in chapter 17 of
the International Code for the Construction and Equipment of Ships
Carrying Dangerous Chemicals in Bulk, 1983, as amended, and the
dangerous
products for which the preliminary suitable conditions for the carriage
have been prescribed by the Administration and port administrations
involved in accordance with paragraph 1.1.3 of the Code;
(iv) dangerous,
hazardous and harmful substances, materials and articles
in packaged form covered by the International Maritime Dangerous Goods
Code, as amended;
(v) liquefied gases
as
listed in chapter 19 of the International Code for
the Construction and Equipment of Ships Carrying Liquefied Gases in
Bulk,
1983, as amended, and the products for which preliminary suitable
conditions for the carriage have been prescribed by the Administration
and
port administrations involved in accordance with paragraph 1.1.6 of the
Code;
(vi) liquid
substances
carried in bulk with a flashpoint not exceeding
60¡C (measured by a closed cup test);
(vii) solid bulk
materials possessing chemical hazards covered by appendix
B of the Code of Safe Practice for Solid Bulk Cargoes, as amended, to
the
extent that these substances are also subject to the provisions of the
International Maritime Dangerous Goods Code when carried in packaged
form;
and
(b) residues from
the
previous carriage in bulk of substances referred to
in (a)(i) to (iii) and (v) to (vii) above.
6 "Damage" means:
(a) loss of life or
personal injury on board or outside the ship carrying
the hazardous and noxious substances caused by those substances;
(b) loss of or
damage
to property outside the ship carrying the hazardous
and noxious substances caused by those substances;
(c) loss or damage
by
contamination of the environment caused by the
hazardous and noxious substances, provided that compensation for
impairment of the environment other than loss of profit from such
impairment shall be limited to costs of reasonable measures of
reinstatement actually undertaken or to be undertaken; and
(d) the costs of
preventive measures and further loss or damage caused by
preventive measures.
Where it is not reasonably possible to separate damage
caused by the
hazardous and noxious substances from that caused by other factors, all
such damage shall be deemed to be caused by the hazardous and noxious
substances except if, and to the extent that, the damage caused by
other
factors is damage of a type referred to in article 4, paragraph 3.
In this paragraph, "caused by those substances" means caused by the
hazardous or noxious nature of the substances.
7 "Preventive measures" means any reasonable measures
taken by any person
after an incident has occurred to prevent or minimize damage.
8 "Incident" means any occurrence or series of
occurrences having the same
origin, which causes damage or creates a grave and imminent threat of
causing damage.
9 "Carriage by sea" means the period from the time
when
the hazardous and
noxious substances enter any part of the ship's equipment, on loading,
to
the time they cease to be present in any part of the ship's equipment,
on
discharge. If no ship's equipment is used, the period begins and ends
respectively when the hazardous and noxious substances cross the ship's
rail.
10 "Contributing cargo" means any hazardous and
noxious
substances which
are carried by sea as cargo to a port or terminal in the territory of a
State Party and discharged in that State. Cargo in transit which is
transferred directly, or through a port or terminal, from one ship to
another, either wholly or in part, in the course of carriage from the
port
or terminal of original loading to the port or terminal of final
destination shall be considered as contributing cargo only in respect
of
receipt at the final destination.
11 The "HNS Fund" means the International Hazardous
and
Noxious Substances
Fund established under article 13.
12 "Unit of account" means the Special Drawing Right
as
defined by the
International Monetary Fund.
13 "State of the ship's registry" means in relation to
a
registered ship
the State of registration of the ship, and in relation to an
unregistered
ship the State whose flag the ship is entitled to fly.
14 "Terminal" means any site for the storage of
hazardous and noxious
substances received from waterborne transportation, including any
facility
situated offshore and linked by pipeline or otherwise to such site.
15 "Director" means the Director of the HNS Fund.
16 "Organization" means the International Maritime
Organization.
17 "Secretary-General" means the Secretary-General of
the Organization.
Article 2
Annexes
The Annexes to this Convention shall constitute an integral part of
this
Convention.
Article 3
Scope of application
This Convention shall apply exclusively:
(a) to any damage
caused in the territory, including the territorial sea,
of a State Party;
(b) to damage by
contamination of the environment caused in1
the exclusive
economic zone of a State Party, established in accordance with
international law, or, if a State Party has not established such a
zone,
in an area beyond and adjacent to the territorial sea of that State
determined by that State in accordance with international law and
extending not more than 200 nautical miles from the baselines from
which
the breadth of its territorial sea is measured;
(c) to damage, other
than damage by contamination of the environment,
caused outside the territory, including the territorial sea, of any
State,
if this damage has been caused by a substance carried on board a ship
registered in a State Party or, in the case of an unregistered ship, on
board a ship entitled to fly the flag of a State Party; and
(d) to preventive
measures, wherever taken.2
Article 4
1 This Convention shall apply to claims, other than claims arising out
of
any contract for the carriage of goods and passengers, for damage
arising
from the carriage of hazardous and noxious substances by sea.
2 This Convention shall not apply to the extent that
its
provisions are
incompatible with those of the applicable law relating to workers'
compensation or social security schemes.
3 This Convention shall not apply:
(a) to pollution
damage as defined in the International Convention on
Civil Liability for Oil Pollution Damage, 1969, as amended, whether or
not
compensation is payable in respect of it under that Convention; and
(b) to damage caused
by a radioactive material of class 7 either in the
International Maritime Dangerous Goods Code, as amended, or in appendix
B
of the Code of Safe Practice for Solid Bulk Cargoes, as amended.
4 Except as provided in paragraph 5, the provisions of
this Convention
shall not apply to warships, naval auxiliary or other ships owned or
operated by a State and used, for the time being, only on Government
non-commercial service.
5 A State Party may decide to apply this Convention to
its warships or
other vessels described in paragraph 4, in which case it shall notify
the
Secretary-General thereof specifying the terms and conditions of such
application.
6 With respect to ships owned by a State Party and
used
for commercial
purposes, each State shall be subject to suit in the jurisdictions set
forth in article 38 and shall waive all defences based on its status as
a
sovereign State.
Article 5
1 A State may, at the time of ratification, acceptance, approval of, or
accession to, this Convention, or any time thereafter, declare that
this
Convention does not apply to ships:
(a) which do not
exceed 200 gross tonnage; and
(b) which carry
hazardous and noxious substances only in packaged form; and
(c) while they are
engaged on voyages between ports or facilities of that
State.
2 Where two neighbouring States agree that this
Convention does not apply
also to ships which are covered by paragraph 1(a) and (b) while engaged
on
voyages between ports or facilities of those States, the States
concerned
may declare that the exclusion from the application of this Convention
declared under paragraph 1 covers also ships referred to in this
paragraph.
3 Any State which has made the declaration under
paragraph 1 or 2 may
withdraw such declaration at any time.
4 A declaration made under paragraph 1 or 2, and the
withdrawal of the
declaration made under paragraph 3, shall be deposited with the
SecretaryGeneral who shall, after the entry into force of this
Convention,
communicate it to the Director.
5 Where a State has made a declaration under paragraph
1or 2 and has not
withdrawn it, hazardous and noxious substances carried on board ships
covered by that paragraph shall not be considered to be contributing
cargo
for the purpose of application of articles 18, 20, article 21,
paragraph 5
and article 43.
6 The HNS Fund is not liable to pay compensation for
damage caused by
substances carried by a ship to which the Convention does not apply
pursuant to a declaration made under paragraph 1or 2, to the extent
that:
(a) the damage as
defined in article 1, paragraph 6(a), (b) or (c) was
caused in:
(i) the territory,
including the territorial sea, of the State which has
made the declaration, or in the case of neighbouring States which have
made a declaration under paragraph 2, of either of them; or
(ii) the exclusive
economic zone, or area mentioned in article 3(b), of
the State or States referred to in (i);
(b) the damage
includes measures taken to prevent or minimize such damage .
Article 6
Duties of State Parties
Each State Party shall ensure that any obligation arising under this
Convention is fulfilled and shall take appropriate measures under its
law
including the imposing of sanctions as it may deem necessary, with a
view
to the effective execution of any such obligation.
Chapter II
LIABILITY
Article 7
Liability of the owner
1 Except as provided in paragraphs 2 and 3, the owner at the time of an
incident shall be liable for damage caused by any hazardous and noxious
substances in connection with their carriage by sea on board the ship,
provided that if an incident consists of a series of occurrences having
the same origin the liability shall attach to the owner at the time of
the
first of such occurrences.
2 No liability shall attach to the owner if the owner
proves that:
(a) the damage
resulted from an act of war, hostilities, civil war,
insurrection or a natural phenomenon of an exceptional, inevitable and
irresistible character; or
(b) the damage was
wholly caused by an act or omission done with the
intent to cause damage by a third party; or
(c) the damage was
wholly caused by the negligence or other wrongful act
of any Government or other authority responsible for the maintenance of
lights or other navigational aids in the exercise of that function; or
(d) the failure of
the
shipper or any other person to furnish information
concerning the hazardous and noxious nature of the substances shipped
either
(i) has caused the
damage, wholly or partly; or
(ii) has led the
owner
not to obtain insurance in accordance with article
12;
provided that
neither
the owner nor its servants or agents knew or ought
reasonably to have known of the hazardous and noxious nature of the
substances shipped.
3 If the owner proves that the damage resulted wholly
or
partly either
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
may
be exonerated wholly or partially from liability to such person.
4 No claim for compensation for damage shall be made
against the owner
otherwise than in accordance with this Convention.
5 Subject to paragraph 6, no claim for compensation
for
damage under this
Convention or otherwise may be made against:
(a) the servants or
agents of the owner or the members of the crew;
(b) the pilot or any
other person who, without being a member of the crew,
performs services for the ship;
(c) any charterer
(howsoever described, including a bareboat charterer),
manager or operator of the ship;
(d) any person
performing salvage operations with the consent of the owner
or on the instructions of a competent public authority;
(e) any person
taking
preventive measures; and
(f) the servants or
agents of persons mentioned in (c), (d) and (e);
unless the damage
resulted from their personal act or omission, committed
with the intent to cause such damage, or recklessly and with knowledge
that such damage would probably result.
6 Nothing in this Convention shall prejudice any
existing right of
recourse of the owner against any third party, including, but not
limited
to, the shipper or the receiver of the substance causing the damage, or
the persons indicated in paragraph 5.
Article 8
Incidents involving two or more ships
1 Whenever damage has resulted from an incident involving two or more
ships each of which is carrying hazardous and noxious substances, each
owner, unless exonerated under article 7, shall be liable for the
damage.
The owners shall be jointly and severally liable for all such damage
which
is not reasonably separable.
2 However, owners shall be entitled to the limits of
liability applicable
to each of them under article 9.
3 Nothing in this article shall prejudice any right of
recourse of an
owner against any other owner.
Article 9
Limitation of liability
1 The owner of a ship shall be entitled to limit liability under this
Convention in respect of any one incident to an aggregate amount
calculated as follows:
(a) 10 million units
of account for a ship not exceeding 2,000 units of
tonnage; and
(b) for a ship with
a
tonnage in excess thereof, the following amount in
addition to that mentioned in (a):
for each unit of
tonnage from 2,001 to 50,000 units of tonnage, 1,500
units of account
for each unit of
tonnage in excess of 50,000 units of tonnage, 360 units
of account
provided, however,
that this aggregate amount shall not in any event
exceed 100 million units of account.
2 The owner shall not be entitled to limit liability
under this Convention
if it is proved that the damage resulted from the personal act or
omission
of the owner, committed with the intent to cause such damage, or
recklessly and with knowledge that such damage would probably result.
3 The owner shall, for the purpose of benefitting from
the limitation
provided for in paragraph 1, constitute a fund for the total sum
representing the limit of liability established in accordance with
paragraph 1 with the court or other competent authority of any one of
the
States Parties in which action is brought under article 38 or, if no
action is brought, with any court or other competent authority in any
one
of the States Parties in which an action can be brought under article
38.
The fund can be constituted either by depositing the sum or by
producing a
bank guarantee or other guarantee, acceptable under the law of the
State
Party where the fund is constituted, and considered to be adequate by
the
court or other competent authority.
4 Subject to the provisions of article 11, the fund
shall be distributed
among the claimants in proportion to the amounts of their established
claims.
5 If before the fund is distributed the owner or any
of
the servants or
agents of the owner or any person providing to the owner insurance or
other financial security has as a result of the incident in question,
paid
compensation for damage, such person shall, up to the amount that
person
has paid, acquire by subrogation the rights which the person so
compensated would have enjoyed under this Convention.
6 The right of subrogation provided for in paragraph 5
may also be
exercised by a person other than those mentioned therein in respect of
any
amount of compensation for damage which such person may have paid but
only
to the extent that such subrogation is permitted under the applicable
national law.
7 Where owners or other persons establish that they
may
be compelled to
pay at a later date in whole or in part any such amount of
compensation,
with regard to which the right of subrogation would have been enjoyed
under paragraphs 5 or 6 had the compensation been paid before the fund
was
distributed, the court or other competent authority of the State where
the
fund has been constituted may order that a sufficient sum shall be
provisionally set aside to enable such person at such later date to
enforce the claim against the fund.
8 Claims in respect of expenses reasonably incurred or
sacrifices
reasonably made by the owner voluntarily to prevent or minimize damage
shall rank equally with other claims against the fund.
9
(a) The amounts
mentioned in paragraph 1 shall be converted into
national currency on the basis of the value of that currency by
reference
to the Special Drawing Right on the date of the constitution of the
fund
referred to in paragraph 3. The value of the national currency, in
terms
of the Special Drawing Right, of a State Party which is a member of the
International Monetary Fund, shall be calculated in accordance with the
method of valuation applied by the International Monetary Fund in
effect
on the date in question for its operations and transactions. The value
of
the national currency, in terms of the Special Drawing Right, of a
State
Party which is not a member of the International Monetary Fund, shall
be
calculated in a manner determined by that State.
(b) Nevertheless, a
State Party which is not a member of the International
Monetary Fund and whose law does not permit the application of the
provisions of paragraph 9(a) may, at the time of ratification,
acceptance,
approval of or accession to this Convention or at any time thereafter,
declare that the unit of account referred to in paragraph 9(a) shall be
equal to 15 gold francs. The gold franc referred to in this paragraph
corresponds to sixty-five-and-a-half milligrammes of gold of millesimal
fineness nine hundred. The conversion of the gold franc into the
national
currency shall be made according to the law of the State concerned.
(c) The calculation
mentioned in the last sentence of paragraph 9(a) and
the conversion mentioned in paragraph 9(b) shall be made in such manner
as
to express in the national currency of the State Party as far as
possible
the same real value for the amounts in paragraph 1 as would result from
the application of the first two sentences of paragraph 9(a). States
Parties shall communicate to the SecretaryGeneral the manner of
calculation pursuant to paragraph 9(a), or the result of the conversion
in
paragraph 9(b) as the case may be, when depositing an instrument of
ratification, acceptance, approval of or accession to this Convention
and
whenever there is a change in either.
10 For the purpose of this article the ship's tonnage
shall be the gross
tonnage calculated in accordance with the tonnage measurement
regulations
contained in Annex I of the International Convention on Tonnage
Measurement of Ships, 1969.
11 The insurer or other person providing financial
security shall be
entitled to constitute a fund in accordance with this article on the
same
conditions and having the same effect as if it were constituted by the
owner. Such a fund may be constituted even if, under the provisions of
paragraph 2, the owner is not entitled to limitation of liability, but
its
constitution shall in that case not prejudice the rights of any
claimant
against the owner.
Article 10
1 Where the owner, after an incident, has constituted a fund in
accordance
with article 9 and is entitled to limit liability:
(a) no person having
a
claim for damage arising out of that incident shall
be entitled to exercise any right against any other assets of the owner
in
respect of such claim; and
(b) the court or
other
competent authority of any State Party shall order
the release of any ship or other property belonging to the owner which
has
been arrested in respect of a claim for damage arising out of that
incident, and shall similarly release any bail or other security
furnished
to avoid such arrest.
2 The foregoing shall, however, only apply if the
claimant has access to
the court administering the fund and the fund is actually available in
respect of the claim.
Article 11
Death and injury
Claims in respect of death or personal injury have priority over other
claims save to the extent that the aggregate of such claims exceeds
twothirds of the total amount established in accordance with article 9,
paragraph 1.
Article 12
Compulsory insurance of the owner
1 The owner of a ship registered in a State Party and actually carrying
hazardous and noxious substances shall be required to maintain
insurance
or other financial security, such as the guarantee of a bank or similar
financial institution, in the sums fixed by applying the limits of
liability prescribed in article 9, paragraph 1, to cover liability for
damage under this Convention.
2 A compulsory insurance certificate attesting that
insurance or other
financial security is in force in accordance with the provisions of
this
Convention shall be issued to each ship after the appropriate authority
of
a State Party has determined that the requirements of paragraph 1 have
been complied with. With respect to a ship registered in a State Party
such compulsory insurance certificate shall be issued or certified by
the
appropriate authority of the State of the ship's registry; with respect
to
a ship not registered in a State Party it may be issued or certified by
the appropriate authority of any State Party. This compulsory insurance
certificate shall be in the form of the model set out in Annex I and
shall
contain the following particulars:
(a) name of the
ship,
distinctive number or letters and port of registry;
(b) name and
principal
place of business of the owner;
(c) IMO ship
identification number;
(d) type and
duration
of security;
(e) name and
principal
place of business of insurer or other person giving
security and, where appropriate, place of business where the insurance
or
security is established; and
(f) period of
validity
of certificate, which shall not be longer than the
period of validity of the insurance or other security.
3 The compulsory insurance certificate shall be in the
official language
or languages of the issuing State. If the language used is neither
English, nor French nor Spanish, the text shall include a translation
into
one of these languages.
4 The compulsory insurance certificate shall be
carried
on board the ship
and a copy shall be deposited with the authorities who keep the record
of
the ship's registry or, if the ship is not registered in a State Party,
with the authority of the State issuing or certifying the certificate.
5 An insurance or other financial security shall not
satisfy the
requirements of this article if it can cease, for reasons other than
the
expiry of the period of validity of the insurance or security specified
in
the certificate under paragraph 2, before three months have elapsed
from
the date on which notice of its termination is given to the authorities
referred to in paragraph 4, unless the compulsory insurance certificate
has been [surrendered to these authorities or a new certificate has
been]3
issued within the said period. The foregoing provisions shall similarly
apply to any modification which results in the insurance or security no
longer satisfying the requirements of this article.
6 The State of the ship's registry shall, subject to
the
provisions of
this article, determine the conditions of issue and validity of the
compulsory insurance certificate.
7 Compulsory insurance certificates issued or
certified
under the
authority of a State Party in accordance with paragraph 2 shall be
accepted by other States Parties for the purposes of this Convention
and
shall be regarded by other States Parties as having the same force as
compulsory insurance certificates issued or certified by them even if
issued or certified in respect of a ship not registered in a State
Party.
A State Party may at any time request consultation with the issuing or
certifying State should it believe that the insurer or guarantor named
in
the compulsory insurance certificate is not financially capable of
meeting
the obligations imposed by this Convention.
8 Any claim for compensation for damage may be brought
directly against
the insurer or other person providing financial security for the
owner's
liability for damage. In such case the defendant may, even if the owner
is
not entitled to limitation of liability, benefit from the limit of
liability prescribed in accordance with paragraph 1. The defendant may
further invoke the defences (other than the bankruptcy or winding up of
the owner) which the owner would have been entitled to invoke.
Furthermore, the defendant may invoke the defence that the damage
resulted
from the wilful misconduct of the owner, but the defendant shall not
invoke any other defence which the defendant might have been entitled
to
invoke in proceedings brought by the owner against the defendant. The
defendant shall in any event have the right to require the owner to be
joined in the proceedings.
9 Any sums provided by insurance or by other financial
security maintained
in accordance with paragraph 1 shall be available exclusively for the
satisfaction of claims under this Convention.
10 A State Party shall not permit a ship under its
flag
to which this
article applies to trade unless a certificate has been issued under
paragraph 2 or 12.
11 Subject to the provisions of this article, each
State
Party shall
ensure, under its national law, that insurance or other security in the
sums specified in paragraph 1 is in force in respect of any ship,
wherever
registered, entering or leaving a port in its territory, or arriving at
or
leaving an offshore facility in its territorial sea.
12 If insurance or other financial security is not
maintained in respect
of a ship owned by a State Party, the provisions of this article
relating
thereto shall not be applicable to such ship, but the ship shall carry
a
compulsory insurance certificate issued by the appropriate authorities
of
the State of the ship's registry stating that the ship is owned by that
State and that the ship's liability is covered within the limit
prescribed
in accordance with paragraph 1. Such a compulsory insurance certificate
shall follow as closely as possible the model prescribed by paragraph
2.
Chapter III
COMPENSATION BY THE INTERNATIONAL HAZARDOUS
AND NOXIOUS SUBSTANCES FUND (HNS FUND)
Article 13
Establishment of the HNS Fund
1 The International Hazardous and Noxious Substances Fund (HNS Fund) is
hereby established with the following aims:
(a) to provide
compensation for damage in connection with the carriage of
hazardous and noxious substances by sea, to the extent that the
protection
afforded by chapter II is inadequate or not available; and
(b) to give effect
to
the related tasks set out in article 15.
2 The HNS Fund shall in each State Party be recognized
as a legal person
capable under the laws of that State of assuming rights and obligations
and of being a party in legal proceedings before the courts of that
State.
Each State Party shall recognize the Director as the legal
representative
of the HNS Fund.
Article 14
Compensation
1 For the purpose of fulfilling its function under article 13,
paragraph
1(a), the HNS Fund shall pay compensation to any person suffering
damage
if such person has been unable to obtain full and adequate compensation
for the damage under the terms of chapter II:
(a) because no
liability for the damage arises under chapter II;
(b) because the
owner
liable for the damage under chapter II is
financially incapable of meeting the obligations under this Convention
in
full and any financial security that may be provided under chapter II
does
not cover or is insufficient to satisfy the claims for compensation for
damage; an owner being treated as financially incapable of meeting
these
obligations and a financial security being treated as insufficient if
the
person suffering the damage has been unable to obtain full satisfaction
of
the amount of compensation due under chapter II after having taken all
reasonable steps to pursue the available legal remedies;
(c) because the
damage
exceeds the owner's liability under the terms of
chapter II.
2 Expenses reasonably incurred or sacrifices
reasonably
made by the owner
voluntarily to prevent or minimize damage shall be treated as damage
for
the purposes of this article.
3 The HNS Fund shall incur no obligation under the
preceding paragraphs if:
(a) it proves that
the
damage resulted from an act of war, hostilities,
civil war or insurrection or was caused by hazardous and noxious
substances which had escaped or been discharged from a warship or other
ship owned or operated by a State and used, at the time of the
incident,
only on Government non-commercial service; or
(b) the claimant
cannot prove that there is a reasonable probability that
the damage resulted from an incident involving one or more ships.
4 If the HNS Fund proves that the damage resulted
wholly
or partly either
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 HNS Fund
may be exonerated wholly or partially from its obligation to pay
compensation to such person. The HNS Fund shall in any event be
exonerated
to the extent that the owner may have been exonerated under article 7,
paragraph 3. However, there shall be no such exoneration of the HNS
Fund
with regard to preventive measures.
5
(a) Except as
otherwise provided in subparagraph (b), the aggregate
amount of compensation payable by the HNS Fund under this article shall
in
respect of any one incident be limited, so that the total sum of that
amount and any amount of compensation actually paid under chapter II
for
damage within the scope of application of this Convention as defined in
article 3 shall not exceed 250 million units of account.
(b) The aggregate
amount of compensation payable by the HNS Fund under
this article for damage resulting from a natural phenomenon of an
exceptional, inevitable and irresistible character shall not exceed 250
million units of account.
(c) Interest accrued
on a fund constituted in accordance with article 9,
paragraph 3, if any, shall not be taken into account for the
computation
of the maximum compensation payable by the HNS Fund under this article.
(d) The amounts
mentioned in this article shall be converted into national
currency on the basis of the value of that currency with reference to
the
Special Drawing Right on the date of the decision of the Assembly of
the
HNS Fund as to the first date of payment of compensation.
6 Where the amount of established claims against the
HNS
Fund exceeds the
aggregate amount of compensation payable under paragraph 5, the amount
available shall be distributed in such a manner that the proportion
between any established claim and the amount of compensation actually
recovered by the claimant under this Convention shall be the same for
all
claimants. Claims in respect of death or personal injury shall have
priority over other claims, however, save to the extent that the
aggregate
of such claims exceeds twothirds of the total amount established in
accordance with paragraph 5.
7 The Assembly of the HNS Fund may decide that, in
exceptional cases,
compensation in accordance with this Convention can be paid even if the
owner has not constituted a fund in accordance with chapter II. In such
cases paragraph 5(d) applies accordingly.
Article 15
Related tasks of the HNS Fund
For the purpose of fulfilling its function under article 13, paragraph
1(a), the HNS Fund shall have the following tasks:
(a) to consider
claims
made against the HNS Fund;
(b) to prepare an
estimate in the form of a budget for each calendar year
of:
Expenditure:
(i) costs and
expenses
of the administration of the HNS Fund in the
relevant year and any deficit from operations in the preceding years;
and
(ii) payments to be
made by the HNS Fund in the relevant year;
Income:
(iii) surplus funds
from operations in preceding years, including any
interest;
(iv) initial
contributions to be paid in the course of the year;
(v) annual
contributions if required to balance the budget; and
(vi) any other
income;
(c) to use at the
request of a State Party its good offices as necessary
to assist that State to secure promptly such personnel, material and
services as are necessary to enable the State to take measures to
prevent
or mitigate damage arising from an incident in respect of which the HNS
Fund may be called upon to pay compensation under this Convention; and
(d) to provide, on
conditions laid down in the internal regulations,
credit facilities with a view to the taking of preventive measures
against
damage arising from a particular incident in respect of which the HNS
Fund
may be called upon to pay compensation under this Convention.
Article 16
General provisions on contributions
1 The HNS Fund shall have a general account, which shall be divided
into
sectors.
2 The HNS Fund shall, subject to article 19,
paragraphs
3 and 4, also have
separate accounts in respect of:
(a) oil as defined
in
article 1, paragraph 5(a)(i) (oil account);
(b) liquefied
natural
gases of light hydrocarbons with methane as the main
constituent (LNG) (LNG account); and
(c) liquefied
petroleum gases of light hydrocarbons with propane and
butane as the main constituents (LPG) (LPG account).
3 There shall be initial contributions and, as
required,
annual
contributions to the HNS Fund.
4 Contributions to the HNS Fund shall be made into the
general account in
accordance with article 18, to separate accounts in accordance with
article 19 and to either the general account or separate accounts in
accordance with article 20 or article 21, paragraph 5. Subject to
article
19, paragraph 6, the general account shall be available to compensate
damage caused by hazardous and noxious substances covered by that
account,
and a separate account shall be available to compensate damage caused
by a
hazardous and noxious substance covered by that account.
5 For the purposes of article 18, article 19,
paragraph
1(a)(i), paragraph
1(a)(ii) and paragraph 1(c), article 20 and article 21, paragraph 5,
where
the quantity of a given type of contributing cargo received in the
territory of a State Party by any person in a calendar year when
aggregated with the quantities of the same type of cargo received in
the
same State Party in that year by any associated person or persons
exceeds
the limit specified in the respective subparagraphs, such a person
shall
pay contributions in respect of the actual quantity received by that
person notwithstanding that that quantity did not exceed the respective
limit.
6 "Associated person" means any subsidiary or commonly
controlled entity.
The question whether a person comes within this definition shall be
determined by the national law of the State concerned.
Article 17
General provisions on annual contributions
1 Annual contributions to the general account and to each separate
account
shall be levied only as required to make payments by the account in
question.
2 Annual contributions payable pursuant to articles
18,
19 and article 21,
paragraph 5 shall be determined by the Assembly and shall be calculated
in
accordance with those articles on the basis of the units of
contributing
cargo received or, in respect of cargoes referred to in article 19,
paragraph 1(b), discharged during the preceding calendar year or such
other year as the Assembly may decide.
3 The Assembly shall decide the total amount of annual
contributions to be
levied to the general account and to each separate account. Following
that
decision the Director shall, in respect of each State Party, calculate
for
each person liable to pay contributions in accordance with article 18,
article 19, paragraph 1 and article 21, paragraph 5, the amount of that
person's annual contribution to each account, on the basis of a fixed
sum
for each unit of contributing cargo reported in respect of the person
during the preceding calendar year or such other year as the Assembly
may
decide. For the general account, the abovementioned fixed sum per unit
of
contributing cargo for each sector shall be calculated pursuant to the
regulations contained in Annex II to this Convention. For each separate
account, the fixed sum per unit of contributing cargo referred to above
shall be calculated by dividing the total annual contribution to be
levied
to that account by the total quantity of cargo contributing to that
account.
4 The Assembly may also levy annual contributions for
administrative costs
and decide on the distribution of such costs between the sectors of the
general account and the separate accounts.
5 The Assembly shall also decide on the distribution
between the relevant
accounts and sectors of amounts paid in compensation for damage caused
by
two or more substances which fall within different accounts or sectors,
on
the basis of an estimate of the extent to which each of the substances
involved contributed to the damage.
Article 18
Annual contributions to the general account
1 Subject to article 16, paragraph 5, annual contributions to the
general
account shall be made in respect of each State Party by any person who
was
the receiver in that State in the preceding calendar year, or such
other
year as the Assembly may decide, of aggregate quantities exceeding
20,000
tonnes of contributing cargo, other than substances referred to in
article
19, paragraph 1, which fall within the following sectors:
(a) solid bulk
materials referred to in article 1, paragraph 5(a)(vii);
(b) substances
referred to in paragraph 2; and
(c) other substances.
2 Annual contributions shall also be payable to the
general account by
persons who would have been liable to pay contributions to a separate
account in accordance with article 19, paragraph 1 had its operation
not
been postponed or suspended in accordance with article 19. Each
separate
account the operation of which has been postponed or suspended under
article 19 shall form a separate sector within the general account.
Article 19
Annual contributions to separate accounts
1 Subject to article 16, paragraph 5, annual contributions to separate
accounts shall be made in respect of each State Party:
(a) in the case of
the
oil account,
(i) by any person
who
has received in that State in the preceding calendar
year, or such other year as the Assembly may decide, total quantities
exceeding 150,000 tonnes of contributing oil as defined in article 1,
paragraph 3 of the International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage, 1971, as
amended, and who is or would be liable to pay contributions to the
International Oil Pollution Compensation Fund in accordance with
article
10 of that Convention; and
(ii) by any person
who
was the receiver in that State in the preceding
calendar year, or such other year as the Assembly may decide, of total
quantities exceeding 20,000 tonnes of other oils carried in bulk listed
in
appendix I of Annex I to the International Convention for the
Prevention
of Pollution from Ships, 1973, as modified by the Protocol of 1978
relating thereto, as amended;
(b) in the case of
the
LNG account, by any person who in the preceding
calendar year, or such other year as the Assembly may decide,
immediately
prior to its discharge, held title to an LNG cargo discharged in a port
or
terminal of that State;
(c) in the case of
the
LPG account, by any person who in the preceding
calendar year, or such other year as the Assembly may decide, was the
receiver in that State of total quantities exceeding 20,000 tonnes of
LPG.
2 Subject to paragraph 3, the separate accounts referred to in
paragraph 1
above shall become effective at the same time as the general account.
3 The initial operation of a separate account referred
to in article 16,
paragraph 2 shall be postponed until such time as the quantities of
contributing cargo in respect of that account during the preceding
calendar year, or such other year as the Assembly may decide, exceed
the
following levels:
(a) 350 million
tonnes
of contributing cargo in respect of the oil account;
(b) 20 million
tonnes
of contributing cargo in respect of the LNG account;
and
(c) 15 million
tonnes
of contributing cargo in respect of the LPG
account.
4 The Assembly may suspend the operation of a separate
account if:
(a) the quantities
of
contributing cargo in respect of that account during
the preceding calendar year fall below the respective level specified
in
paragraph 3; or
(b) when six months
have elapsed from the date when the contributions were
due, the total unpaid contributions to that account exceed ten per cent
of
the most recent levy to that account in accordance with paragraph 1.
5 The Assembly may reinstate the operation of a
separate
account which has
been suspended in accordance with paragraph 4.
6 Any person who would be liable to pay contributions
to
a separate
account the operation of which has been postponed in accordance with
paragraph 3 or suspended in accordance with paragraph 4, shall pay into
the general account the contributions due by that person in respect of
that separate account. For the purpose of calculating future
contributions, the postponed or suspended separate account shall form a
new sector in the general account and shall be subject to the HNS
points
system defined in Annex II.
Article 20
Initial contributions
1 In respect of each State Party, initial contributions shall be made
of
an amount which shall for each person liable to pay contributions in
accordance with article 16, paragraph 5, articles 18, 19 and article
21,
paragraph 5 be calculated on the basis of a fixed sum, equal for the
general account and each separate account, for each unit of
contributing
cargo received or, in the case of LNG, discharged in that State, during
the calendar year preceding that in which this Convention enters into
force for that State.
2 The fixed sum and the units for the different
sectors
within the general
account as well as for each separate account referred to in paragraph 1
shall be determined by the Assembly.
3 Initial contributions shall be paid within three
months following the
date on which the HNS Fund issues invoices in respect of each State
Party
to persons liable to pay contributions in accordance with paragraph 1.
Article 21
Reports
1 Each State Party shall ensure that any person liable to pay
contributions in accordance with articles 18, 19 or paragraph 5 of this
article appears on a list to be established and kept up to date by the
Director in accordance with the provisions of this article.
2 For the purposes set out in paragraph 1, each State
Party shall
communicate to the Director, at a time and in the manner to be
prescribed
in the internal regulations of the HNS Fund, the name and address of
any
person who in respect of the State is liable to pay contributions in
accordance with articles 18, 19 or paragraph 5 of this article, as well
as
data on the relevant quantities of contributing cargo for which such a
person is liable to contribute in respect of the preceding calendar
year.
3 For the purposes of ascertaining who are, at any
given
time, the persons
liable to pay contributions in accordance with articles 18, 19 or
paragraph 5 of this article and of establishing, where applicable, the
quantities of cargo to be taken into account for any such person when
determining the amount of the contribution, the list shall be prima
facie
evidence of the facts stated therein.
4 Where a State Party does not fulfil its obligations
to
communicate to
the Director the information referred to in paragraph 2 and this
results
in a financial loss for the HNS Fund, that State Party shall be liable
to
compensate the HNS Fund for such loss. The Assembly shall, on the
recommendation of the Director, decide whether such compensation shall
be
payable by a State Party.
5 In respect of contributing cargo carried from one
port
or terminal of a
State Party to another port or terminal located in the same State and
discharged there, States Parties shall have the option of submitting to
the HNS Fund a report with an annual aggregate quantity for each
account
covering all receipts of contributing cargo, including any quantities
in
respect of which contributions are payable pursuant to article 16,
paragraph 5. The State Party shall, at the time of reporting, either:
(a) notify the HNS
Fund that that State will pay the aggregate amount for
each account in respect of the relevant year in one lump sum to the HNS
Fund; or
(b) instruct the HNS
Fund to levy the aggregate amount for each account by
invoicing individual receivers or, in the case of LNG, the title holder
who discharges within the jurisdiction of that State Party, for the
amount
payable by each of them. These persons shall be identified in
accordance
with the national law of the State concerned.
Article 22
Nonpayment of contributions
1 The amount of any contribution due under articles 18, 19, 20 or
article
21, paragraph 5 and which is in arrears shall bear interest at a rate
which shall be determined in accordance with the internal regulations
of
the HNS Fund, provided that different rates may be fixed for different
circumstances.
2 Where a person who is liable to pay contributions in
accordance with
articles 18, 19, 20 or article 21, paragraph 5 does not fulfil the
obligations in respect of any such contribution or any part thereof and
is
in arrears, the Director shall take all appropriate action, including
court action, against such a person on behalf of the HNS Fund with a
view
to the recovery of the amount due. However, where the defaulting
contributor is manifestly insolvent or the circumstances otherwise so
warrant, the Assembly may, upon recommendation of the Director, decide
that no action shall be taken or continued against the contributor.
Article 23
Optional liability of States Parties for the payment of contributions
1 Without prejudice to article 21, paragraph 5, a State Party may at
the
time when it deposits its instrument of ratification, acceptance,
approval
or accession or at any time thereafter declare that it assumes
responsibility for obligations imposed by this Convention on any person
liable to pay contributions in accordance with articles 18, 19, 20 or
article 21, paragraph 5 in respect of hazardous and noxious substances
received or discharged in the territory of that State. Such a
declaration
shall be made in writing and shall specify which obligations are
assumed.
2 Where a declaration under paragraph 1 is made prior
to
the entry into
force of this Convention in accordance with article 46, it shall be
deposited with the SecretaryGeneral who shall after the entry into
force
of this Convention communicate the declaration to the Director.
3 A declaration under paragraph 1 which is made after
the entry into force
of this Convention shall be deposited with the Director.
4 A declaration made in accordance with this article
may
be withdrawn by
the relevant State giving notice thereof in writing to the Director.
Such
a notification shall take effect three months after the Director's
receipt
thereof.
5 Any State which is bound by a declaration made under
this article shall,
in any proceedings brought against it before a competent court in
respect
of any obligation specified in the declaration, waive any immunity that
it
would otherwise be entitled to invoke.
Article 24
Organization and administration
The HNS Fund shall have an Assembly and a Secretariat headed by the
Director.
Article 25
Assembly
The Assembly shall consist of all States Parties to this Convention.
Article 26
The functions of the Assembly shall be:
(a) to elect at each
regular session its President and two Vice-Presidents
who shall hold office until the next regular session;
(b) to determine its
own rules of procedure, subject to the provisions of
this Convention;
(c) to develop,
apply
and keep under review internal and financial
regulations relating to the aim of the HNS Fund as described in article
13, paragraph 1(a), and the related tasks of the HNS Fund listed in
article 15;
(d) to appoint the
Director and make provisions for the appointment of
such other personnel as may be necessary and determine the terms and
conditions of service of the Director and other personnel;
(e) to adopt the
annual budget prepared in accordance with article 15(b);
(f) to consider and
approve as necessary any recommendation of the
Director regarding the scope of definition of contributing cargo;
(g) to appoint
auditors and approve the accounts of the HNS Fund;
(h) to approve
settlements of claims against the HNS Fund, to take
decisions in respect of the distribution among claimants of the
available
amount of compensation in accordance with article 14 and to determine
the
terms and conditions according to which provisional payments in respect
of
claims shall be made with a view to ensuring that victims of damage are
compensated as promptly as possible;
(i) to establish a
Committee on Claims for Compensation with at least 7
and not more than 15 members and any temporary or permanent subsidiary
body it may consider to be necessary, to define its terms of reference
and
to give it the authority needed to perform the functions entrusted to
it;
when appointing the members of such body, the Assembly shall endeavour
to
secure an equitable geographical distribution of members and to ensure
that the States Parties are appropriately represented; the Rules of
Procedure of the Assembly may be applied, mutatis mutandis, for the
work
of such subsidiary body;
(j) to determine
which
States not party to this Convention, which
Associate Members of the Organization and which intergovernmental and
international non-governmental organizations shall be admitted to take
part, without voting rights, in meetings of the Assembly and subsidiary
bodies;
(k) to give
instructions concerning the administration of the HNS Fund to
the Director and subsidiary bodies;
(l) to supervise the
proper execution of this Convention and of its own
decisions;
(m) to review every
five years the implementation of this Convention with
particular reference to the performance of the system for the
calculation
of levies and the contribution mechanism for domestic trade; and
(n) to perform such
other functions as are allocated to it under this
Convention or are otherwise necessary for the proper operation of the
HNS
Fund.
Article 27
1 Regular sessions of the Assembly shall take place once every calendar
year upon convocation by the Director.
2 Extraordinary sessions of the Assembly shall be
convened by the Director
at the request of at least onethird of the members of the Assembly and
may
be convened on the Director's own initiative after consultation with
the
President of the Assembly. The Director shall give members at least
thirty
days' notice of such sessions.
Article 28
A majority of the members of the Assembly shall constitute a quorum for
its meetings.
Article 29
Secretariat
1 The Secretariat shall comprise the Director and such staff as the
administration of the HNS Fund may require.
2 The Director shall be the legal representative of
the
HNS Fund.
Article 30
1 The Director shall be the chief administrative officer of the HNS
Fund.
Subject to the instructions given by the Assembly, the Director shall
perform those functions which are assigned to the Director by this
Convention, the internal regulations of the HNS Fund and the Assembly.
2 The Director shall in particular:
(a) appoint the
personnel required for the administration of the HNS Fund;
(b) take all
appropriate measures with a view to the proper administration
of the assets of the HNS Fund;
(c) collect the
contributions due under this Convention while observing in
particular the provisions of article 22, paragraph 2;
(d) to the extent
necessary to deal with claims against the HNS Fund and
to carry out the other functions of the HNS Fund, employ the services
of
legal, financial and other experts;
(e) take all
appropriate measures for dealing with claims against the HNS
Fund, within the limits and on conditions to be laid down in the
internal
regulations of the HNS Fund, including the final settlement of claims
without the prior approval of the Assembly where these regulations so
provide;
(f) prepare and
submit
to the Assembly the financial statements and budget
estimates for each calendar year;
(g) prepare, in
consultation with the President of the Assembly, and
publish a report on the activities of the HNS Fund during the previous
calendar year; and
(h) prepare, collect
and circulate the documents and information which may
be required for the work of the Assembly and subsidiary bodies.
Article 31
In the performance of their duties the Director and the staff and
experts
appointed by the Director shall not seek or receive instructions from
any
Government or from any authority external to the HNS Fund. They shall
refrain from any action which might adversely reflect on their position
as
international officials. Each State Party on its part undertakes to
respect the exclusively international character of the responsibilities
of
the Director and the staff and experts appointed by the Director, and
not
to seek to influence them in the discharge of their duties.
Article 32
Finances
1 Each State Party shall bear the salary, travel and other expenses of
its
own delegation to the Assembly and of its representatives on subsidiary
bodies.
2 Any other expenses incurred in the operation of the
HNS Fund shall be
borne by the HNS Fund.
Article 33
Voting
The following provisions shall apply to voting in the Assembly:
(a) each member
shall
have one vote;
(b) except as
otherwise provided in article 34, decisions of the Assembly
shall be made by a majority vote of the members present and voting;
(c) decisions where
a
two-thirds majority is required shall be a
two-thirds majority vote of members present; and
(d) for the purpose
of
this article the phrase "members present" means
"members present at the meeting at the time of the vote", and the
phrase
"members present and voting" means "members present and casting an
affirmative or negative vote". Members who abstain from voting shall be
considered as not voting.
Article 34
The following decisions of the Assembly shall require a two-thirds
majority:
(a) a decision under
article 19, paragraphs 4 or 5 to suspend or reinstate
the operation of a separate account;
(b) a decision under
article 22, paragraph 2, not to take or continue
action against a contributor;
(c) the appointment
of
the Director under article 26(d);
(d) the
establishment
of subsidiary bodies, under article 26(i), and
matters relating to such establishment; and
(e) a decision under
article 51, paragraph 1, that this Convention shall
continue to be in force.
Article 35
Tax exemptions and currency regulations
1 The HNS Fund, its assets, income, including contributions, and other
property necessary for the exercise of its functions as described in
article 13, paragraph 1, shall enjoy in all States Parties exemption
from
all direct taxation.
2 When the HNS Fund makes substantial purchases of
movable or immovable
property, or of services which are necessary for the exercise of its
official activities in order to achieve its aims as set out in article
13,
paragraph 1, the cost of which include indirect taxes or sales taxes,
the
Governments of the States Parties shall take, whenever possible,
appropriate measures for the remission or refund of the amount of such
duties and taxes. Goods thus acquired shall not be sold against payment
or
given away free of charge unless it is done according to conditions
approved by the Government of the State having granted or supported the
remission or refund.
3 No exemption shall be accorded in the case of
duties,
taxes or dues
which merely constitute payment for public utility services.
4 The HNS Fund shall enjoy exemption from all customs
duties, taxes and
other related taxes on articles imported or exported by it or on its
behalf for its official use. Articles thus imported shall not be
transferred either for consideration or gratis on the territory of the
country into which they have been imported except on conditions agreed
by
the Government of that country.
5 Persons contributing to the HNS Fund as well as
victims and owners
receiving compensation from the HNS Fund shall be subject to the fiscal
legislation of the State where they are taxable, no special exemption
or
other benefit being conferred on them in this respect.
6 Notwithstanding existing or future regulations
concerning currency or
transfers, States Parties shall authorize the transfer and payment of
any
contribution to the HNS Fund and of any compensation paid by the HNS
Fund
without any restriction.
Article 36
Confidentiality of information
Information relating to individual contributors supplied for the
purpose
of this Convention shall not be divulged outside the HNS Fund except in
so
far as it may be strictly necessary to enable the HNS Fund to carry out
its functions including the bringing and defending of legal
proceedings.
Chapter IV
CLAIMS AND ACTIONS
Article 37
Limitation of actions
1 Rights to compensation under chapter II shall be extinguished unless
an
action is brought thereunder within three years from the date when the
person suffering the damage knew or ought reasonably to have known of
the
damage and of the identity of the owner.
2 Rights to compensation under chapter III shall be
extinguished unless an
action is brought thereunder or a notification has been made pursuant
to
article 39, paragraph 7, within three years from the date when the
person
suffering the damage knew or ought reasonably to have known of the
damage.
3 In no case, however, shall an action be brought
later
than ten years
from the date of the incident which caused the damage.
4 Where the incident consists of a series of
occurrences, the ten-year
period mentioned in paragraph 3 shall run from the date of the last of
such occurrences.
Article 38
Jurisdiction in respect of action against the owner
1 Where an incident has caused damage in the territory, including the
territorial sea or in an area referred to in article 3(b), of one or
more
States Parties, or preventive measures have been taken to prevent or
minimize damage in such territory including the territorial sea or in
such
area, actions for compensation may be brought against the owner or
other
person providing financial security for the owner's liability only in
the
courts of any such States Parties.
2 Where an incident has caused damage exclusively
outside the territory,
including the territorial sea, of any State and either the conditions
for
application of this Convention set out in article 3(c) have been
fulfilled
or preventive measures to prevent or minimize such damage have been
taken,
actions for compensation may be brought against the owner or other
person
providing financial security for the owner's liability only in the
courts
of:
(a) the State Party
where the ship is registered or, in the case of an
unregistered ship, the State Party whose flag the ship is entitled to
fly;
or
(b) the State Party
where the owner has habitual residence or where the
principal place of business of the owner is established; or
(c) the State Party
where a fund has been constituted in accordance with
article 9, paragraph 3.
3 Reasonable notice of any action taken under
paragraph
1 or 2 shall be
given to the defendant.
4 Each State Party shall ensure that its courts have
jurisdiction to
entertain actions for compensation under this Convention.
5 After a fund under article 9 has been constituted by
the owner or by the
insurer or other person providing financial security in accordance with
article 12, the courts of the State in which such fund is constituted
shall have exclusive jurisdiction to determine all matters relating to
the
apportionment and distribution of the fund.
Article 39
Jurisdiction in respect of action against the HNS Fund or taken by the
HNS
Fund
1 Subject to the subsequent provisions of this article, any action
against
the HNS Fund for compensation under article 14 shall be brought only
before a court having jurisdiction under article 38 in respect of
actions
against the owner who is liable for damage caused by the relevant
incident
or before a court in a State Party which would have been competent if
an
owner had been liable.
2 In the event that the ship carrying the hazardous or
noxious substances
which caused the damage has not been identified, the provisions of
article
38, paragraph 1, shall apply mutatis mutandis to actions against the
HNS
Fund.
3 Each State Party shall ensure that its courts have
jurisdiction to
entertain such actions against the HNS Fund as are referred to in
paragraph 1.
4 Where an action for compensation for damage has been
brought before a
court against the owner or the owner's guarantor, such court shall have
exclusive jurisdiction over any action against the HNS Fund for
compensation under the provisions of article 14 in respect of the same
damage.
5 Each State Party shall ensure that the HNS Fund
shall
have the right to
intervene as a party to any legal proceedings instituted in accordance
with this Convention before a competent court of that State against the
owner or the owner's guarantor.
6 Except as otherwise provided in paragraph 7, the HNS
Fund shall not be
bound by any judgement or decision in proceedings to which it has not
been
a party or by any settlement to which it is not a party.
7 Without prejudice to the provisions of paragraph 5,
where an action
under this Convention for compensation for damage has been brought
against
an owner or the owner's guarantor before a competent court in a State
Party, each party to the proceedings shall be entitled under the
national
law of that State to notify the HNS Fund of the proceedings. Where such
notification has been made in accordance with the formalities required
by
the law of the court seized and in such time and in such a manner that
the
HNS Fund has in fact been in a position effectively to intervene as a
party to the proceedings, any judgement rendered by the court in such
proceedings shall, after it has become final and enforceable in the
State
where the judgement was given, become binding upon the HNS Fund in the
sense that the facts and findings in that judgement may not be disputed
by
the HNS Fund even if the HNS Fund has not actually intervened in the
proceedings.
Article 40
Recognition and enforcement
1 Any judgement given by a court with jurisdiction in accordance with
article 38, which is enforceable in the State of origin where it is no
longer subject to ordinary forms of review, shall be recognized in any
State Party, except:
(a) where the
judgement was obtained by fraud; or
(b) where the
defendant was not given reasonable notice and a fair
opportunity to present the case.
2 A judgement recognized under paragraph 1 shall be
enforceable in each
State Party as soon as the formalities required in that State have been
complied with. The formalities shall not permit the merits of the case
to
be re-opened.
3 Subject to any decision concerning the distribution
referred to in
article 14, paragraph 6, any judgement given against the HNS Fund by a
court having jurisdiction in accordance with article 39, paragraphs 1
and
3 shall, when it has become enforceable in the State of origin and is
in
that State no longer subject to ordinary forms of review, be recognized
and enforceable in each State Party.
Article 41
Subrogation and recourse
1 The HNS Fund shall, in respect of any amount of compensation for
damage
paid by the HNS Fund in accordance with article 14, paragraph 1,
acquire
by subrogation the rights that the person so compensated may enjoy
against
the owner or the owner's guarantor.
2 Nothing in this Convention shall prejudice any
rights
of recourse or
subrogation of the HNS Fund against any person, including persons
referred
to in article 7, paragraph 2(d), other than those referred to in the
previous paragraph, in so far as they can limit their liability. In any
event the right of the HNS Fund to subrogation against such persons
shall
not be less favourable than that of an insurer of the person to whom
compensation has been paid.
3 Without prejudice to any other rights of subrogation
or recourse against
the HNS Fund which may exist, a State Party or agency thereof which has
paid compensation for damage in accordance with provisions of national
law
shall acquire by subrogation the rights which the person so compensated
would have enjoyed under this Convention.
Article 42
Supersession clause
This Convention shall supersede any convention in force or open for
signature, ratification or accession at the date on which this
Convention
is opened for signature, but only to the extent that such convention
would
be in conflict with it; however, nothing in this article shall affect
the
obligations of States Parties to States not party to this Convention
arising under such convention.
Chapter V
TRANSITIONAL PROVISIONS
Article 43
Information on contributing cargo
When depositing an instrument referred to in article 45, paragraph 3,
and
annually thereafter until this Convention enters into force for a
State,
that State shall submit to the SecretaryGeneral data on the relevant
quantities of contributing cargo received or, in the case of LNG,
discharged in that State during the preceding calendar year in respect
of
the general account and each separate account.
Article 44
First session of the Assembly
The Secretary-General shall convene the first session of the Assembly.
This session shall take place as soon as possible after the entry into
force of this Convention and, in any case, not more than thirty days
after
such entry into force.
Chapter VI
FINAL CLAUSES
Article 45
Signature, ratification, acceptance,
approval and accession
1 This Convention shall be open for signature at the Headquarters of
the
Organization from 1 October 1996 to 30 September 1997 and shall
thereafter
remain open for accession.
2 States may express their consent to be bound by this
Convention by:
(a) signature
without
reservation as to ratification, acceptance or
approval; or
(b) signature
subject
to ratification, acceptance or approval, followed by
ratification, acceptance or approval; or
(c) accession.
3 Ratification, acceptance, approval or accession
shall
be effected by the
deposit of an instrument to that effect with the Secretary-General.
Article 46
Entry into force
1 This Convention shall enter into force eighteen months after the date
on
which the following conditions are fulfilled:
(a) at least twelve
States, including four States each with not less than
2 million units of gross tonnage, have expressed their consent to be
bound
by it, and
(b) the
SecretaryGeneral has received information in accordance with
article 43 that those persons in such States who would be liable to
contribute pursuant to article 18, paragraphs 1(a) and (c) have
received
during the preceding calendar year a total quantity of at least 40
million
tonnes of cargo contributing to the general account.
2 For a State which expresses its consent to be bound
by
this Convention
after the conditions for entry into force have been met, such consent
shall take effect three months after the date of expression of such
consent, or on the date on which this Convention enters into force in
accordance with paragraph 1, whichever is the later.
Article 47
Revision and amendment
1 A conference for the purpose of revising or amending this Convention
may
be convened by the Organization.
2 The Secretary-General shall convene a conference of
the States Parties
to this Convention for revising or amending the Convention, at the
request
of six States Parties or onethird of the States Parties, whichever is
the
higher figure.
3 Any consent to be bound by this Convention expressed
after the date of
entry into force of an amendment to this Convention shall be deemed to
apply to the Convention as amended.
Article 48
Amendment of limits
1 Without prejudice to the provisions of article 47, the special
procedure
in this article shall apply solely for the purposes of amending the
limits
set out in article 9, paragraph 1 and article 14, paragraph 5.
2 Upon the request of at least one half, but in no
case
less than six, of
the States Parties, any proposal to amend the limits specified in
article
9, paragraph 1, and article 14, paragraph 5, shall be circulated by the
Secretary-General to all Members of the Organization and to all
Contracting States.
3 Any amendment proposed and circulated as above shall
be submitted to the
Legal Committee of the Organization (the Legal Committee) for
consideration at a date at least six months after the date of its
circulation.
4 All Contracting States, whether or not Members of
the
Organization,
shall be entitled to participate in the proceedings of the Legal
Committee
for the consideration and adoption of amendments.
5 Amendments shall be adopted by a two-thirds majority
of the Contracting
States present and voting in the Legal Committee, expanded as provided
in
paragraph 4, on condition that at least one half of the Contracting
States
shall be present at the time of voting.
6 When acting on a proposal to amend the limits, the
Legal Committee shall
take into account the experience of incidents and, in particular, the
amount of damage resulting therefrom, changes in the monetary values
and
the effect of the proposed amendment on the cost of insurance. It shall
also take into account the relationship between the limits established
in
article 9, paragraph 1, and those in article 14, paragraph 5.
7
(a) No amendment of
the limits under this article may be considered less
than five years from the date this Convention was opened for signature
nor
less than five years from the date of entry into force of a previous
amendment under this article.
(b) No limit may be
increased so as to exceed an amount which corresponds
to a limit laid down in this Convention increased by six per cent per
year
calculated on a compound basis from the date on which this Convention
was
opened for signature.
(c) No limit may be
increased so as to exceed an amount which corresponds
to a limit laid down in this Convention multiplied by three.
8 Any amendment adopted in accordance with paragraph 5
shall be notified
by the Organization to all Contracting States. The amendment shall be
deemed to have been accepted at the end of a period of eighteen months
after the date of notification, unless within that period no less than
one-fourth of the States which were Contracting States at the time of
the
adoption of the amendment have communicated to the Secretary-General
that
they do not accept the amendment, in which case the amendment is
rejected
and shall have no effect.
9 An amendment deemed to have been accepted in
accordance with paragraph 8
shall enter into force eighteen months after its acceptance.
10 All Contracting States shall be bound by the
amendment, unless they
denounce this Convention in accordance with article 49, paragraphs 1
and
2, at least six months before the amendment enters into force. Such
denunciation shall take effect when the amendment enters into force.
11 When an amendment has been adopted but the eighteen
month period for
its acceptance has not yet expired, a State which becomes a Contracting
State during that period shall be bound by the amendment if it enters
into
force. A State which becomes a Contracting State after that period
shall
be bound by an amendment which has been accepted in accordance with
paragraph 8. In the cases referred to in this paragraph, a State
becomes
bound by an amendment when that amendment enters into force, or when
this
Convention enters into force for that State, if later.
Article 49
Denunciation
1 This Convention may be denounced by any State Party at any time after
the date on which it enters into force for that State Party.
2 Denunciation shall be effected by the deposit of an
instrument of
denunciation with the Secretary-General.
3 Denunciation shall take effect twelve months, or
such
longer period as
may be specified in the instrument of denunciation, after its deposit
with
the Secretary-General.
4 Notwithstanding a denunciation by a State Party
pursuant to this
article, any provisions of this Convention relating to obligations to
make
contributions under articles 18, 19 or article 21, paragraph 5 in
respect
of such payments of compensation as the Assembly may decide relating to
an
incident which occurs before the denunciation takes effect shall
continue
to apply.
Article 50
Extraordinary sessions of the Assembly
1 Any State Party may, within ninety days after the deposit of an
instrument of denunciation the result of which it considers will
significantly increase the level of contributions from the remaining
States Parties, request the Director to convene an extraordinary
session
of the Assembly. The Director shall convene the Assembly to meet not
less
than sixty days after receipt of the request.
2 The Director may take the initiative to convene an
extraordinary session
of the Assembly to meet within sixty days after the deposit of any
instrument of denunciation, if the Director considers that such
denunciation will result in a significant increase in the level of
contributions from the remaining States Parties.
3 If the Assembly, at an extraordinary session,
convened
in accordance
with paragraph 1 or 2 decides that the denunciation will result in a
significant increase in the level of contributions from the remaining
States Parties, any such State may, not later than one hundred and
twenty
days before the date on which the denunciation takes effect, denounce
this
Convention with effect from the same date.
Article 51
Cessation
1 This Convention shall cease to be in force:
(a) on the date when
the number of States Parties falls below 6; or
(b) twelve months
after the date on which data concerning a previous
calendar year were to be communicated to the Director in accordance
with
article 21, if the data shows that the total quantity of contributing
cargo to the general account in accordance with article 18, paragraphs
1(a) and (c) received in the States Parties in that preceding calendar
year was less than 30 million tonnes.
Notwithstanding (b), if the total quantity of
contributing cargo to the
general account in accordance with article 18, paragraphs 1(a) and (c)
received in the States Parties in the preceding calendar year was less
than 30 million tonnes but more than 25 million tonnes, the Assembly
may,
if it considers that this was due to exceptional circumstances and is
not
likely to be repeated, decide before the expiry of the above-mentioned
twelve month period that the Convention shall continue to be in force.
The
Assembly may not, however, take such a decision in more than two
subsequent years.
2 States which are bound by this Convention on the day
before the date it
ceases to be in force shall enable the HNS Fund to exercise its
functions
as described under article 52 and shall, for that purpose only, remain
bound by this Convention.
Article 52
Winding up of the HNS Fund
1 If this Convention ceases to be in force, the HNS Fund shall
nevertheless:
(a) meet its
obligations in respect of any incident occurring before this
Convention ceased to be in force; and
(b) be entitled to
exercise its rights to contributions to the extent that
these contributions are necessary to meet the obligations under (a),
including expenses for the administration of the HNS Fund necessary for
this purpose.
2 The Assembly shall take all appropriate measures to
complete the winding
up of the HNS Fund including the distribution in an equitable manner of
any remaining assets among those persons who have contributed to the
HNS
Fund.
3 For the purposes of this article the HNS Fund shall
remain a legal
person.
Article 53
Depositary
1 This Convention and any amendment adopted under article 48 shall be
deposited with the Secretary-General.
2 The Secretary-General shall:
(a) inform all
States
which have signed this Convention or acceded
thereto, and all Members of the Organization, of:
(i) each new
signature
or deposit of an instrument of ratification,
acceptance, approval or accession together with the date thereof;
(ii) the date of entry into force of this Convention;
(iii) any proposal
to
amend the limits on the amounts of compensation
which has been made in accordance with article 48, paragraph 2;
(iv) any amendment
which has been adopted in accordance with article 48,
paragraph 5;
(v) any amendment
deemed to have been accepted under article 48, paragraph
8, together with the date on which that amendment shall enter into
force
in accordance with paragraphs 9 and 10 of that article;
(vi) the deposit of
any instrument of denunciation of this Convention
together with the date on which it is received and the date on which
the
denunciation takes effect; and
(vii) any
communication called for by any article in this Convention;
and
(b) transmit
certified
true copies of this Convention to all States which
have signed this Convention or acceded thereto.
3 As soon as this Convention enters into force, a
certified true copy
thereof shall be transmitted by the depositary to the Secretary-General
of
the United Nations for registration and publication in accordance with
Article 102 of the Charter of the United Nations.
Article 54
Languages
This Convention is established in a single original in the Arabic,
Chinese, English, French, Russian and Spanish languages, each text
being
equally authentic.
DONE AT LONDON this third day of
May
one thousand nine hundred and
ninetysix.
IN WITNESS WHEREOF the undersigned,
being duly authorized by their
respective Governments for that purpose, have signed this Convention.
***
ANNEX I
CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN
RESPECT OF LIABILITY FOR DAMAGE CAUSED BY
HAZARDOUS AND NOXIOUS SUBSTANCES (HNS )
Issued in accordance with the provisions of Article 12 of the
International Convention
on Liability and Compensation for Damage in Connection with the
Carriage
of Hazardous
and Noxious Substances by Sea, 1996
Name of ship
Distinctive numbers or letters
IMO ship identification number
Port of registry
Name and full address of the principal business of the
owner
This is to certify that there is in force in respect
of
the abovenamed
ship a policy of insurance or other financial security satisfying the
requirements of Article 12 of the International Convention on Liability
and Compensation for Damage in Connection with the Carriage of
Hazardous
and Noxious Substances by Sea, 1996.
Type of security
Duration of security
Name and address of the insurer(s) and/or guarantor(s)
Name
Address
This certificate is valid until
Issued or certified by the Government of (Full
designation of the State)
At (Place)
On (Date)
(Signature and Title of issuing or certifying official)
Explanatory Notes:
1. If desired, the designation of the State may include a reference to
the
competent public authority of the country where the certificate is
issued.
2. If the total amount of security has been furnished
by
more than one
source, the amount of each of them should be indicated.
3. If security is furnished in several forms, these
should be enumerated.
4. The entry "Duration of the Security" must stipulate
the date on which
such security takes effect.
5. The entry "Address" of the insurer(s) and/or
guarantor(s) must indicate
the principal place of business of the insurer(s) and/or guarantor(s).
If
appropriate, the place of business where the insurance or other
security
is established shall be indicated.
***
ANNEX II
REGULATIONS FOR THE CALCULATION OF ANNUAL CONTRIBUTIONS
TO THE GENERAL ACCOUNT
Regulation 1
1 The fixed sum referred to in article 17, paragraph 3 shall be
determined
for each sector in accordance with these regulations.
2 When it is necessary to calculate contributions for
more than one sector
of the general account, a separate fixed sum per unit of contributing
cargo shall be calculated for each of the following sectors as may be
required:
(a) solid bulk
materials referred to in article 1, paragraph 5(a)(vii);
(b) oil, if the
operation of the oil account is postponed or suspended;
(c) LNG, if the
operation of the LNG account is postponed or suspended;
(d) LPG, if the
operation of the LPG account is postponed or suspended;
(e) other
substances.
Regulation 2
1 For each sector, the fixed sum per unit of contributing cargo shall
be
the product of the levy per HNS point and the sector factor for that
sector.
2 The levy per HNS point shall be the total annual
contributions to be
levied to the general account divided by the total HNS points for all
sectors.
3 The total HNS points for each sector shall be the
product of the total
volume, measured in metric tonnes, of contributing cargo for that
sector
and the corresponding sector factor.
4 A sector factor shall be calculated as the weighted
arithmetic average
of the claims/volume ratio for that sector for the relevant year and
the
previous nine years, according to this regulation.
5 Except as provided in paragraph 6, the claims/volume
ratio for each of
these years shall be calculated as follows:
(a) established
claims, measured in units of account converted from the
claim currency using the rate applicable on the date of the incident in
question, for damage caused by substances in respect of which
contributions to the HNS Fund are due for the relevant year; divided by
(b) the volume of
contributing cargo corresponding to the relevant year.
6 In cases where the information required in
paragraphs
5(a) and (b) is
not available, the following values shall be used for the claims/volume
ratio for each of the missing years:
(a) solid bulk
materials referred to in article 1, paragraph 5 (a)(vii) 0
(b) oil, if the
operation of the oil account is postponed 0
(c) LNG, if the
operation of the LNG account is postponed 0
(d) LPG, if the
operation of the LPG account is postponed 0
(e) other substances
0.0001
7 The arithmetic average of the ten years shall be
weighted on a
decreasing linear scale, so that the ratio of the relevant year shall
have
a weight of 10, the year prior to the relevant year shall have a weight
of
9, the next preceding year shall have a weight of 8, and so on, until
the
tenth year has a weight of 1.
8 If the operation of a separate account has been
suspended, the relevant
sector factor shall be calculated in accordance with those provisions
of
this regulation which the Assembly shall consider appropriate.