Section 5
Substitution of Part IX
of Merchant Shipping (Amendment and Extension) Act 2011
The Ordinance is amended by substituting for Part IX the following part:
“Part IX
LIABILITY OF OWNERS AND OTHERS
AND COMPULSORY INSURANCE
Liability of owners and others in respect of maritime claims
Application.
Quoted provision
Section 358
This Part shall apply to every Malaysian ship, and to every ship when in Malaysian waters and the exclusive economic zone.
Interpretation.
Quoted provision
Section 359
In this Part, unless the context otherwise requires—
“limitation of liability” means limitation of the aggregate amount of liability of any one or more persons in accordance with this Part;
“Malaysian waters” means the territorial waters of Malaysia as determined in accordance with the
Emergency (Essential Powers) Ordinance No. 7 1969
[P.U. (A) 307a/1969];
“owner”, in relation to a ship, means—
(a)
every person who owns the ship or has any interest in the ownership of the ship;
(b)
in any case where the ship has been chartered, the charterer;
(c)
in any case where the owner or charterer is not responsible for the navigation and management of the ship, every person who is responsible for the navigation and management of the ship;
“salvage” includes all expenses properly incurred by the salvor in the performance of the salvage services;
“salvor”, in relation to a ship, means every person rendering services directly connected with salvage operations carried out in relation to that ship.
Limitation of liability of owners, salvors, etc., for maritime claims.
Quoted provision
Section 360
The Convention on Limitation of Liability for Maritime Claims 1976 as amended by the Protocol of 1996 to amend the Convention on Limitation of
Liability for Maritime Claims 1976 (referred to as the
“Protocol of 1996”), and as set out in Part I of the
Sixteenth Schedule (referred to in this Part and Part II of that Schedule as “the Convention”), shall have the force of law in Malaysia.
(2)
Part II of the Sixteenth Schedule shall have effect in connection with the Convention and subsection (1)
shall have effect subject to the provisions of that
Part.
Merchant Shipping (Amendment and Extension)
(3)
If it appears to the Minister that the Government has agreed to any revision or amendment of the
Convention, the Minister may by order published in the Gazette make such modifications to Parts I and II of the Sixteenth Schedule.
(4)
Without prejudice to subsection (3), the Minister may by order published in the Gazette make such amendments to Parts I and II of the Sixteenth Schedule as appear to him to be appropriate for the purpose of giving effect to any amendment of a relevant limit which is adopted in accordance with Article 8 of the
Protocol of 1996.
(5)
For the purposes of subsection (4), a “relevant limit” means any of the limits for the time being specified in—
(a)
Article 6, paragraph 1 of Part I of the Sixteenth
Schedule; and
(b)
Article 7, paragraph 1 of Part I of the Sixteenth
Schedule.
(6)
No revision or amendment made by virtue of subsection (3) or (4) shall affect any rights or liabilities arising out of an occurrence which took place before the day on which the revision or amendment comes into operation.
(7)
Notwithstanding the provisions of Articles 6
and 7 of Part I of the Sixteenth Schedule, the Minister may by order published in the Gazette provide specific provisions on the limitation of liability to ships which are intended for navigation on inland waterways and ships of less than 300 tons.
Compulsory insurance or other financial security.
Quoted provision
Section 361
Any ship shall not enter or leave a port in Malaysia, or any part of Malaysian waters or the exclusive economic zone, unless there is in force in respect of the ship a contract of insurance or other financial security satisfying the requirements of the
Convention in respect of the limits of liability.
(2)
This section shall not apply to—
(a)
a foreign ship while it is exercising—
(i)
the right of innocent passage; or
(ii)
the right of transit passage through straits used for international navigation;
(b)
ships of war and troopships; and
(c)
any ship for the time being used by the government of any State for purposes other than commercial purposes.
(3)
If a ship enters or leaves, or attempts to enter or leave, a port in Malaysia or any part of Malaysian waters or the exclusive economic zone in contravention of subsection (1), the master or the owner of the ship shall be guilty of an offence and shall be liable on conviction to a fine of not less than two hundred thousand ringgit and not more than five hundred thousand ringgit.
(4)
If a ship attempts to leave a port in Malaysia or any part of Malaysian waters or the exclusive economic zone in contravention of this section, the ship may be detained.
(5)
Any contract of insurance or other financial security required by this section to be in force in respect of a ship shall be carried in the ship, and shall on demand be produced by the master to the Director of Marine or any person authorized in writing by the
Director of Marine.
(6)
If a ship fails to carry, or the master of the ship fails to produce, a contract of insurance or other financial security as required by subsection (5), the master of the ship shall be guilty of an offence and shall be liable on conviction to a fine of not less than twenty thousand ringgit and not more than one hundred thousand ringgit.
Merchant Shipping (Amendment and Extension)
9
Quoted provision
Section 362
Release of ships, etc.
Where the Court has found that a person who has incurred a liability under this Part is entitled to limit that liability under this Part and he has paid a sum or deposited a bank guarantee or security into the Court for a sum of not less than that amount—
(a)
the Court shall order the release of any ship or other property arrested in connection with the claim in respect of that liability or any bail or other security given to avoid such arrest;
and
(b)
no judgement or order in respect of any such claim shall be enforced, except so far as it is for costs, if the claimant has access to the Court and if the payment or the bank guarantee or security or such part thereof as corresponds to the claim will be actually available to the claimant.
Proof of passengers on board ship.
Quoted provision
Section 363
In any proceedings under this Part against the owner of a ship with respect to loss of life, the passengers lists under Part IV of this Ordinance shall be received as evidence that the person upon whose death proceedings are taken under this Part was a passenger on board the ship at the time of death.
Exclusion of application.
Quoted provision
Section 364
The Minister may, by order published in the
Gazette, pursuant to Article 18 of the Convention exclude—
(a)
the application of Article 2, paragraphs 1(d)
and (e) of Part I of the Sixteenth Schedule;
and
(b)
claims for damage within the meaning of the
International Convention on Liability and
Compensation for Damage in Connection with the Carriage of Hazardous and Noxious
Substances by Sea, 1996 or of any amendment or protocol thereto.
Priority of claims.
Quoted provision
Section 365
Without prejudice to the right of claims for loss of life or personal injury in accordance with Article 6, paragraph 2 of Part I of the Sixteenth Schedule, the
Minister may, by order published in the Gazette, provide for claims in respect of damage to harbour works, basins, waterways and aids to navigation to have priority over other claims under Article 6, paragraph 1(b) of Part I of that Schedule.
Compulsory insurance or financial security for master and seamen
Compulsory insurance or financial security for master and seamen.
Quoted provision
Section 365a
The owner of every Malaysian ship shall maintain a contract of insurance or other financial security in respect of the master and every seaman carried on board the ship, to cover all claims arising out of a contract or otherwise in respect of the death, personal injury or abandonment of the master or seaman.
(2)
If the owner of a Malaysian ship fails to comply with subsection (1), he shall be guilty of an offence and shall be liable on conviction to a fine of not less than fifty thousand ringgit and not more than one hundred thousand ringgit.”.