PRELIMINARY
Short title and commencement
/akn/my/act/act/1994/515
*MERCHANT SHIPPING (OIL POLLUTION) ACT 1994
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- Type
- Act
- Status
- In force
- Enacted
- 1994
- Last amended
- 2011
- Sections
- 38
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About this act
*MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 is Malaysia Act, cited as Act 515 1994, currently marked in force and first recorded in 1994.
Opening note
Preamble
- An Act to make provisions with respect to civil liability for oil and bunker oil pollution by merchant ships and for matters connected therewith. [6 April 1995, P.U. (B) 144/1995] BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows:
Part I
PART I
Section 1
(2)
This Act shall come into force on such date as the Minister may, by notification in the Gazette, appoint and the Minister may appoint different dates for different provisions of this Act.
Interpretation
Section 2
(a)
in relation to a ship that incurs liability under section 3, means the registered owner; or
(b)
in relation to a ship that incurs liability under section 3A, means the registered owner, bareboat charterer, or manager and operator of the ship;
“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;
“pollution damage” means—
(a)
loss or damage caused outside a ship by contamination resulting from the discharge or escape of oil or bunker oil from the ship, wherever such discharge or escape may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs and reasonable measures of reinstatement actually undertaken or to be undertaken; and
(b)
the costs of preventive measures and further loss or damage caused by preventive measures;
“port” means—
(a)
a port or place declared to be a port under the Merchant
Shipping Ordinance 1952 or under any other written law;
10 Laws of Malaysia ACT 515
(b)
a place prescribed as a port under the Merchant Shipping
Ordinance 1960 of Sabah [Sabah Ord. 11 of 1960], the
Merchant Shipping Ordinance 1960 of Sarawak [Sarawak
Ord. 2 of 1960] and regulations made thereunder;
“preventive measures” means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage;
“registered owner” means the person registered as the owner of the ship or, in the absence of registration, the person owning the ship, except that in relation to a ship owned by a State and operated by a company which in that State is registered as the ship’s operator,
“registered owner” shall mean such company;
“ship”—
(a)
in relation to a liability incurred under section 3, means any seagoing vessel and seaborne craft of any type constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard; or
(b)
in relation to a liability incurred under section 3A, means any seagoing vessel and seaborne craft of any type;
“terminal installation” means any site for the storage of oil in bulk which is capable of receiving oil from waterborne transportation, including any facility situated offshore and linked to any such site;
“territorial sea” means the territorial waters of Malaysia determined in accordance with the Emergency (Essential Powers) Ordinance, No.
7 of 1969 [P.U. (A) 307A/1969].
Merchant Shipping (Liability and 11
Compensation for Oil and Bunker Oil Pollution)
(2)
In relation to any pollution damage caused by a ship, references in this Act to the owner of the ship are references to the owner at the time of the incident or, if the incident consists of a series of occurrences having the same origin, at the time of the first such occurrence.
(3)
For the purposes of this Act—
(a)
references to any area of Malaysia include the territorial sea of Malaysia and exclusive economic zone of Malaysia and references to any area of any other Liability Convention country or Bunkers Convention country include the territorial sea and the exclusive economic zone of that Liability
Convention country or Bunkers Convention country; and
(b)
references to the exclusive economic zone of a country are references to the exclusive economic zone of that country established in accordance with international law, or, if such a zone has not been established, such area adjacent to the territorial sea of that country determined by that country in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
(4)
For the purposes of this Act, 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 signed in London on 23 June1969.
Part II
PART II
LIABILITY FOR OIL AND BUNKER OIL POLLUTION
Liability for oil pollution
Section 3
(2)
Further, the owner of the ship shall be liable for any pollution damage caused to any area of any other Liability Convention country as a result of any incident specified in subsection (1).
(3)
Where an incident involving two or more ships occurs and pollution damage results from the incident, the owners of all the ships concerned shall, unless exonerated under section 4, be jointly and severally liable for all such pollution damage which is not reasonably separable.
Liability for bunker oil pollution
Section 3A
(2)
Where more than one person is liable in accordance with subsection (1), their liability shall be joint and several.
(3)
Further, the owner of the ship shall be liable for any pollution damage caused to any area of any other Bunkers Convention country as a result of any incident specified in subsection (1).
(4)
Where an incident involving two or more ships occurs and pollution damage results from the incident, the owners of all the ships concerned shall, unless exonerated under section 4, be jointly and severally liable for all such pollution damage which is not reasonably separable.
Merchant Shipping (Liability and 13
Compensation for Oil and Bunker Oil Pollution)
Exceptions from liability under section 3 or 3A
Section 4
(a)
resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character;
(b)
was wholly caused by an act or omission of a third party, which act or omission was done with intent to cause damage;
or
(c)
was wholly caused by the negligence or wrongful act of a government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.
(2)
Where the owner of a ship from which oil or bunker oil has been discharged or has escaped proves that the pollution damage resulted wholly or partially 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 his liability to such person.
Restriction of liability for oil pollution damage under section 3
Section 5
(2)
The liability for pollution damage shall not apply to—
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(b)
the pilot or any other person who, not 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 of the ship or on the instructions of a competent public authority;
(c)
, (d) and (e), unless the pollution damage resulted from their own act or omission, committed with the intent to cause such damage, or recklessly and with the knowledge that such damage would probably result.
Restriction of liability for bunker oil pollution damage under section 3A
Section 5A
(2)
The liability for pollution damage shall not apply to—
(b)
the pilot or any other person who, not being a member of the crew, performs services for the ship;
Merchant Shipping (Liability and 15
Compensation for Oil and Bunker Oil Pollution)
(d)
any person performing salvage operations with the consent of the owner of the ship or on the instructions of a competent public authority;
(c)
, (d) and (e), unless the pollution damage resulted from their own act or omission, committed with the intent to cause such damage, or recklessly and with the knowledge that such damage would probably result.
Limitation of liability under section 3
Section 6
(2)
The owner of a ship who incurs a liability under section 3 may limit his liability in accordance with this Act as set out in Part I of this First Schedule.
(3)
If it is proved that the pollution damage resulted from an act or omission of the owner of the ship, committed with the intent to cause such damage, or recklessly and with the knowledge that such damage would probably result, he shall not be entitled to limit his liability under subsection (2).
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Limitation of liability under section 3A
Section 6A
(2)
The owner of a ship who incurs a liability under section 3A may limit his liability in accordance with 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, as set out in the Sixteenth Schedule of the
Merchant Shipping Ordinance 1952.
(3)
If it is proved that the pollution damage resulted from an act or omission of the owner of the ship, committed with the intent to cause such damage, or recklessly and with the knowledge that such damage would probably result, he shall not be entitled to limit his liability under subsection (2).
Limitation actions
Section 7
(a)
under section 3, he may apply to the Court for the limitation of that liability to an amount determined in accordance with section 6; or
(b)
under section 3A, he may apply to the Court for the limitation of that liability to an amount determined in accordance with section 6A.
(2)
If on such an application the Court finds that the applicant has incurred such a liability and is entitled to limit it, the Court shall, after determining the limit of that liability and directing payment, or
Merchant Shipping (Liability and 17
Compensation for Oil and Bunker Oil Pollution)
deposit of a bank guarantee or security into Court of the amount of that limit—
(a)
determine the amounts that would, apart from the limit, be due in respect of the liability to the persons making claims in the proceedings; and
(b)
direct the distribution of the amount paid into Court (or, as the case may be, so much of it as does not exceed the liability) among the persons in proportion to their established claims, subject to subsections (3), (4), (5) and (6).
(3)
No claim shall be admitted in proceedings under this section unless it is made within such time as the Court may direct or such further time as the Court may allow but such time shall not be less than six months from the date the pollution damage occurred.
(4)
Where any sum has been paid in or towards satisfaction of any claim in respect of the pollution damage to which the liability extends—
(a)
by the owner of a ship or any of his servants or agents or the person referred to in section 13 as “the insurer”; or
(b)
by any other person, the person who paid the sum shall, to the extent of that sum, be in the same position with respect to any distribution made in proceedings under this section as the person to whom it was paid would have been.
(5)
Where the owner of a ship has voluntarily made any reasonable sacrifices or incurred any reasonable expenses to prevent or minimize pollution damage to which the liability extends or might have extended, he shall be in the same position with respect to any distribution made in proceedings under this section as if he had a claim in respect of the liability equal to the cost of the sacrifices or expenses.
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(6)
The Court may, on application by the owner of a ship or any other person who establishes that he may be compelled to pay at a later date, in whole or in part, any amount of compensation, with regard to which he would have enjoyed a right of subrogation under subsection (4) had the compensation been paid before the amount paid into the Court was distributed, order that a sufficient sum be set aside to enable such person to make a claim at a later date.
Restriction on enforcement of claims after establishment of limitation fund
Section 8
Where the Court has found that a person who has incurred a liability—
(b)
under section 3A, is entitled to limit that liability under section 6A, and he has paid a sum or deposited a bank guarantee or security into the Court for a sum not less than that amount—
(aa) 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
(bb) 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, or would have been available to him, if the proper steps in the proceedings under section 7 had been taken.
Merchant Shipping (Liability and 19
Compensation for Oil and Bunker Oil Pollution)
Limitation fund outside Malaysia
Section 9
Where the event resulting in the liability of any person under section 3 or 3A has also resulted in a corresponding liability under the law of another Liability Convention country or Bunkers Convention country, respectively, section 8 shall apply as if the references to sections 3 or 3A, and 7 include references to the corresponding provisions of that law and the references to sums paid into the Court include references to any sums secured under those provisions in respect of the liability.
Section 10
Extinguishment of claims
No action to enforce a claim in respect of a liability incurred under section 3 or 3A shall be considered by any Court in Malaysia unless the action is commenced within three years from the date the pollution damage occurred or within six years from the date of the incident which caused the pollution damage, and where the incident consists of a series of occurrences, the six years’ period shall run from the date of the first such occurrence.
Section 11
Compulsory insurance against liability for oil pollution
(2)
Any such ship shall not enter or leave a port in Malaysia or arrive at or leave a terminal installation area in any area of Malaysia or, if the ship is registered in Malaysia, it shall not enter or leave a port in any other country or a terminal installation in the territorial sea of any other country, unless there is in force a certificate complying with subsection (3) and showing that there is in force in respect of the ship a contract of insurance or other financial security satisfying the requirements of Article 7 of the Liability Convention
(cover for owner’s liability).
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(3)
The certificate shall be—
(a)
if the ship is registered in Malaysia, a certificate issued by the Director of Marine;
(b)
if the ship is registered in a Liability Convention country other than Malaysia, a certificate issued by or under the authority of the government of that country; and
(c)
if the ship is registered in a country which is not a Liability
Convention country, a certificate issued by the Director of
Marine or a certificate recognized for the purpose of this paragraph by regulations made under this Act.
(4)
The certificate issued under paragraphs (3)(a) and (c) by the
Director of Marine shall be in the national language and shall also include a translation in the English language.
(5)
Any certificate 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 authorized officer.
(6)
If a ship enters or leaves, or attempts to enter or leave, a port or arrives at or leaves or attempts to arrive at or leave, a terminal installation in contravention of subsection (2), the master or the owner of the ship shall be guilty of an offence and shall be liable on conviction to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding four years or to both.
(7)
If a ship fails to carry or the master of a ship fails to produce a certificate 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 not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one year or to both.
(8)
If a ship attempts to leave a port or a terminal installation in
Malaysia in contravention of this section, the ship may be detained.
Merchant Shipping (Liability and 21
Compensation for Oil and Bunker Oil Pollution)
Compulsory insurance against liability for bunker oil pollution
Section 11A
(2)
Any such ship shall not enter or leave a port in Malaysia or arrive at or leave a terminal installation area in any area of Malaysia or, if the ship is registered in Malaysia, it shall not enter or leave a port in any other country or a terminal installation in the territorial sea of any other country, unless there is in force a certificate complying with subsection (3) and showing that there is in force in respect of the ship a contract of insurance or other financial security satisfying the requirements of Article 7 of the Bunkers Convention
(cover for owner’s liability).
(3)
The certificate shall be—
(a)
if the ship is registered in Malaysia, a certificate issued by the Director of Marine;
(b)
if the ship is registered in a Bunkers Convention country other than Malaysia, a certificate issued by or under the authority of the government of that country; and
(c)
if the ship is registered in a country which is not a Bunkers
Convention country, a certificate issued by the Director of
Marine or a certificate issued by or under the authority of any
Bunkers Convention country.
(4)
The certificate issued under paragraphs (3)(a) and (c) by the
Director of Marine shall be in the national language and shall also include a translation in the English language.
(5)
Any certificate 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 authorized officer.
22 Laws of Malaysia ACT 515
(6)
If a ship enters or leaves, or attempts to enter or leave, a port or arrives at or leaves or attempts to arrive at or leave, a terminal installation in contravention of subsection (2), the master or the owner of the ship shall be guilty of an offence and shall be liable on conviction to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding four years or to both.
(7)
If a ship fails to carry or the master of a ship fails to produce a certificate 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 not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one year or to both.
(8)
If a ship attempts to leave a port or a terminal installation in
Malaysia in contravention of this section, the ship may be detained.
Issue of certificate by Director of Marine
Section 12
(1A)
Subject to subsection (2), if the Director of Marine is satisfied, on an application for such certificate as is mentioned in section 11A in respect of a ship registered in Malaysia or any country which is not a Bunkers Convention country, that there will be in force in respect of the ship, throughout the period for which the certificate is to be issued, a valid contract of insurance or other financial security satisfying the requirements of Article 7 of the Bunkers Convention, the Director of Marine shall issue such certificate to the registered owner.
Merchant Shipping (Liability and 23
Compensation for Oil and Bunker Oil Pollution)
(2)
If the Director of Marine is of the opinion that there is a doubt whether the person providing the insurance or other financial security will be able to meet his obligations, or whether the insurance or other financial security will cover the owner’s liability under section 3 or 3A in all circumstances, he may refuse to issue the certificate.
(3)
The Director of Marine shall maintain a record of any certificate issued by him in respect of a ship registered in
Malaysia and this shall be available for public inspection.
Rights of third parties against insurers
Section 13
(2)
In any proceedings instituted against the insurer by virtue of this section, the insurer may invoke the defences (other than bankruptcy or winding up of the owner) which the owner himself would have been entitled to invoke, and it shall be a defence to prove that the pollution damage resulted from the wilful misconduct of the owner himself.
(3)
The insurer may limit his liability in respect of claims made against him by virtue of this section in like manner and to the same extent as the owner of a ship may limit his liability under subsection 6(2) or 6A(2), as the case may be, even if the owner, in accordance with subsection 6(3) or 6A(3), as the case may be, is not entitled to limit his liability.
(4)
Where the owner of a ship and the insurer each applies to the
Court for the limitation of his liability any payment or any deposit of a bank guarantee or security into the Court in pursuance of either
24 Laws of Malaysia ACT 515
application shall be treated as paid or deposited also in pursuance of the other.
Government ships
Section 14
(2)
In relation to a ship owned by a State and for the time being used for commercial purposes—
(a)
it shall be sufficient compliance with subsection 11(2) if there is in force a certificate issued by the appropriate authority of that State and showing that the ship is owned by that State and that any liability for pollution damage as defined in Article 1 of the Liability Convention will be met up to the limit prescribed by Article V of that Convention; or
(b)
it shall be sufficient compliance with subsection 11A(2) if there is in force a certificate issued by the appropriate authority of that State and showing that the ship is owned by that State and that any liability for pollution damage as defined in Article 1 of the Bunkers Convention will be met up to the limits set out in Chapter II of 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, and as set out in the Sixteenth Schedule of the Merchant Shipping
Ordinance 1952.
(3)
Every State which is a party to the Liability Convention or
Bunkers Convention shall, for the purposes of any proceedings instituted in a Court in Malaysia to enforce a claim in respect of a liability incurred under section 3 or 3A, respectively, be deemed to have submitted to the jurisdiction of that Court, but nothing in this subsection shall authorize the issue of execution against the property of any State.
Merchant Shipping (Liability and 25
Compensation for Oil and Bunker Oil Pollution)
Part III
PART III
THE INTERNATIONAL OIL POLLUTION
COMPENSATION FUND
Interpretation
Section 15
In this Part, unless the context otherwise requires—
“Fund Convention country” means a country in respect of which the Fund Convention is in force;
“Fund Convention ship” means a ship registered under the law of a
Fund Convention country;
“guarantor” means any person providing insurance or other financial security to cover an owner’s liability of the kind described in section 11;
“the Fund” means the International Oil Pollution Compensation
Fund established by the Fund Convention;
“the Fund Convention” means the International Convention on the
Establishment of an International Fund for Compensation for Oil
Pollution Damage signed in London on 27 November 1992.
Section 16
Legal personality of the Fund
(2)
Any proceedings by or against the Fund may either be instituted by or against the Fund in its own name or be instituted by or against the Director of the Fund as the Fund’s representative.
26 Laws of Malaysia ACT 515
Contributions by persons who receive oil
Section 17
(2)
Subsection (1) applies whether or not the oil is being imported, and applies even if contributions are payable in respect of carriage of the same oil on a previous voyage.
(3)
Contributions shall also be payable to the Fund in respect of oil when first received in any installation in Malaysia after having been carried by sea and discharged in a port or terminal installation in any country which is not a Fund Convention country.
(4)
A person shall be liable to make contributions in respect of the oil received by him in any year if the oil so received in the year exceeds one hundred and fifty thousand tons.
(5)
The contributions payable by a person for any year shall—
(a)
be of such amount as may be determined by the Assembly of the Fund under Article 12 of the Fund Convention and notified to him by the Fund;
(b)
be payable in such instalments, becoming due at such times, as may be so notified to him, and if any amount due from him remains unpaid after the date on which it became due, it shall from then on bear interest, at a rate determined from time to time by the said Assembly, until it is paid.
(6)
The Minister may, by regulations, impose on persons who are or may be liable to pay contributions under this section, obligations to give security for payment to the Director of Marine or to the Fund, and regulations under this subsection—
(a)
may contain such supplemental or incidental provisions as appear to the Minister expedient; and
Merchant Shipping (Liability and 27
Compensation for Oil and Bunker Oil Pollution)
(b)
may impose penalties for contravention of the regulations punishable by a fine not exceeding ten thousand ringgit.
(7)
In this section, and section 18 and 19 unless the context otherwise requires—
“oil” means crude oil and fuel oil, and—
(a)
“crude oil” means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation, and includes—
(i)
crude oils from which distillate fractions have been removed; and
(b)
“fuel oil” means heavy distillates or residues from crude oil or blends of such materials intended for use as a fuel for the production of heat or power of a quality equivalent to the
“American Society for Testing and Materials’ Specification for Number Four Fuel Oil (Designation D 396-69)”, or heavier.
Power to obtain information
Section 18
(2)
A notice under this section may specify the way in which, and the time within which, it is to be complied with.
28 Laws of Malaysia ACT 515
(3)
In proceedings by the Fund against any person to recover any amount due under section 17, particulars contained in any list transmitted by the Director of Marine to the Fund shall, so far as those particulars are based on information obtained under this section, be admissible as evidence of the facts stated in the list; and so far as particulars which are so admissible are based on information given by the person against whom the proceedings are brought, those particulars shall be presumed to be accurate until the contrary is proved.
(4)
If a person discloses any information which has been furnished to or obtained by him under this section, or in connection with the execution of this section, he shall, unless the disclosure is made—
(c)
for the purposes of any legal proceedings arising out of this section or of any report of such proceedings, be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both.
(5)
A person who—
(b)
in furnishing any information in compliance with a notice under this section makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one year or to both.
Merchant Shipping (Liability and 29
Compensation for Oil and Bunker Oil Pollution)
Liability of the Fund
Section 19
(b)
because the owner of a ship liable for the pollution damage cannot meet his obligations in full or any insurance or other financial security provided under section 11 is insufficient to satisfy the claims; or
(c)
because the pollution damage exceeds the liability under section 3 as limited by section 6.
(2)
For the purposes of this section the owner of a ship is to be treated as incapable of meeting his obligations if the obligations have not been met after all reasonable steps have been taken to pursue the legal remedies available.
(3)
Expenses reasonably incurred or sacrifices reasonably made by the owner of a ship voluntarily to prevent or minimize pollution damage shall be treated as pollution damage for the purpose of this section, and accordingly he shall be in the same position with respect to claims against the Fund under this section as if he had a claim in respect of liability under section 3.
(4)
The Fund shall not incur an obligation under this section if—
(i)
resulted from an act of war, hostilities, civil war or insurrection; or
30 Laws of Malaysia ACT 515
(ii)
was caused by oil which has been discharged or has escaped 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 the pollution damage resulted from an incident involving one or more ships.
(5)
If it is proved that the pollution damage resulted wholly or partly—
(a)
from an act or omission done with intent to cause damage by the person who suffered the damage; or
(b)
from the negligence of that person, the Fund may be exonerated wholly or partly from its obligation to pay compensation to that person:
Provided that this subsection shall not apply to a claim in respect of expenses or sacrifices made voluntarily to prevent or minimize pollution damage.
(6)
The Fund’s liability under this section shall be subject to the limits as set out in Part II of the First Schedule.
(7)
Notwithstanding any other written law evidence of any instrument issued by any organ of the Fund or of any document in the custody of the Fund, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of the Fund; and any document purporting to be such a copy shall be received in evidence without proof of the official position or handwriting of the person signing the certificate.
(8)
For the purpose of giving effect to the provisions of paragraphs 1, 2, 3, 6, 7 and 8 of Article 4 of the Fund Convention and Part II of the First Schedule, as the may case may be, a Court giving judgement
Merchant Shipping (Liability and 31
Compensation for Oil and Bunker Oil Pollution)
against the Fund in proceedings under this section shall notify the
Fund, and—
(a)
no steps shall be taken to enforce the judgement unless and until the Court gives leave to enforce it;
(b)
that leave shall not be given unless and until the Fund notifies the Court either that the amount of the claim is not to be reduced under the said provision of Article 4 or Part II of the First Schedule;
(c)
in the latter case the judgement shall be enforceable only for the reduced amount.
Section 20
(Deleted by Act A1248).
Section 21
Extinguishment of claims
(b)
a third party notice of an action to enforce a claim against the owner of a ship or his guarantor in respect of the pollution damage is given to the Fund, within three years from the date the pollution damage occurred and in this subsection “third party notice” means a notice of the kind described in subsections 23(3) and (4).
(2)
No action to enforce a claim against the Fund under this Part shall be considered by a Court in Malaysia unless the action is commenced within six years from the date of the incident which caused the pollution damage.
32 Laws of Malaysia ACT 515
Section 22
(3)
In respect of any sum paid under paragraph 19(1)(a) or (c), the
Fund shall acquire by subrogation any rights of recourse or subrogation which the owner of the ship or his guarantor or any other person has in respect of his liability for the damage in question.
(4)
In respect of any sum paid by a public authority in Malaysia or other State as compensation for pollution damage, that public authority or State shall acquire by subrogation any rights which the recipient has against the Fund under this Part.
Part IV
PART IV
JURISDICTION AND EFFECT OF JUDGEMENTS
Section 23
(2)
Where any oil or bunker oil is discharged or escapes from a ship but does not result in any pollution damage in any area of
Malaysia and no preventive measures are reasonably taken to prevent or minimize such damage in that area, no Court in Malaysia shall consider an action (whether in rem or in personam) to enforce a claim arising from—
Merchant Shipping (Liability and 33
Compensation for Oil and Bunker Oil Pollution)
(a)
any pollution damage caused in any area of another Liability
Convention country or Bunkers Convention country resulting from the discharge or escape;
(b)
any expenses incurred in taking preventive measures to prevent or minimize such damage in any area of another
Liability Convention country or Bunkers Convention country; or
(3)
Where the Fund has been given notice of proceedings instituted against the owner of a ship or his guarantor in respect of liability under section 3, any judgement given in the proceedings shall, after it has become final and enforceable, become binding upon the Fund in the sense that the facts and findings in the judgement may not be disputed by the Fund even if the Fund has not intervened in the proceedings.
(4)
Where a person incurs a liability under the law of a Fund
Convention country corresponding to Part II for damage which is partly in any area of Malaysia subsection (3) shall, for the purpose of proceedings under Part III, apply with any necessary modifications to a judgement in proceedings under that law of the said country.
Enforcement of judgements
Section 24
(a)
a Liability Convention country to enforce a claim in respect of a liability incurred under any provision corresponding to section 3;
34 Laws of Malaysia ACT 515
(b)
a Fund Convention country to enforce a claim in respect of liability incurred under any provision corresponding to section 19; or
(c)
a Bunkers Convention country to enforce a claim in respect of a liability incurred under any provision corresponding to section 3A, and in its application to such a judgement the said Part II shall have effect with the omission of subsections 5(2) and (3) of that Act.
(2)
In respect of paragraph (1)(b), no steps shall be taken to enforce such a judgement unless and until the Court in which it is registered under Part II of the Reciprocal Enforcement of Judgements Act 1958
gives leave to enforce it and—
(a)
that leave shall not be given unless and until the Fund notifies the Court either that the amount of the claim is not to be reduced under paragraph 1 of Part II of the First Schedule or that it is to be reduced to a specified amount; and
(b)
in the latter case the judgement shall be enforceable only for the reduced amount.
(3)
For the purposes of this Act, subsection 3(2) of the Reciprocal
Enforcement of Judgements Act 1958 shall apply with the following modifications:
(a)
the reference to the Yang di-Pertuan Agong shall be construed as a reference to the Minister;
(b)
the reference to the First Schedule shall be construed as a reference to the Second Schedule to this Act; and
(c)
the High Court of the country or territory shall be deemed to be the superior court of that country or territory.
Merchant Shipping (Liability and 35
Compensation for Oil and Bunker Oil Pollution)
Part V
PART V
ENFORCEMENT
Director of Marine to carry out powers and duties under this Act or regulations made thereunder
Section 25
(2)
The Director of Marine may authorize in writing any officer as he deems fit to carry out any of the powers and duties conferred on him under this Act or any regulations made thereunder.
(3)
An authorized officer mentioned under subsection (2) shall be deemed to be public servants within the meaning of the Penal Code
[Act 574].
Power of arrest and detention
Section 26
(a)
arrest any person who he has reason to believe has committed an offence under this Act; and
(b)
detain any ship which he has reason to believe has been used in the commission of such an offence:
Provided that when any person has been arrested as aforesaid he shall thereafter be dealt with as provided by the Criminal Procedure
Code [Act 593].
36 Laws of Malaysia ACT 515
(2)
Where a ship has been detained under subsection (1) the Director of Marine or any authorized officer may release such ship to the owner, master or agent thereof subject to sufficient security being furnished to the satisfaction of the Director of Marine or any authorized officer that the ship shall be surrendered to him on demand.
Section 27
(b)
enter and search any premises, and may carry out such inspection and examination as he may consider necessary and may seize any books, papers, documents or other things found in those places which may furnish evidence of the commission of an offence under this Act or any regulations made thereunder and may make copies of, or take extracts from, any such books, papers or documents.
(2)
Any person who assaults, hinders, impedes or obstructs the
Director of Marine or any authorized officer in the performance of his duties under this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both.
Part VI
PART VI
MISCELLANEOUS
Offences by body corporate
Section 28
Where an offence under this Act or any regulations made thereunder
Merchant Shipping (Liability and 37
Compensation for Oil and Bunker Oil Pollution)
has been committed by a body corporate, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in such capacity shall, as well as such body corporate, be deemed to be guilty of that offence unless he proves that the offence was committed without his consent or connivance and that he exercised all due diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions in that capacity and to all the circumstances.
Section 28A
Prosecution
(2)
The Director of Marine or any authorized officer, authorized in writing by the Public Prosecutor, may conduct the prosecution of any offence committed under this Act or any regulations made thereunder.
Power to make regulations
Section 29
(2)
Without prejudice to the generality of subsection (1), regulations may be made—
(a)
to prescribe the amount of fees to be paid on an application for the issue of a certificate;
(b)
to prescribe the form of the certificate to be issued and the validity period of such certificate;
38 Laws of Malaysia ACT 515
(c)
to provide for the cancellation and delivery up of a certificate issued in such circumstances as may be prescribed by the regulations;
(d)
to provide that certificates in respect of ships registered in any, or any specified, country which is not a Liability
Convention country shall, in such circumstances as may be specified in the regulations, be recognized for the purposes of paragraph 11(3)(c) if issued by or under the authority of the government of the country designated in the regulations in that behalf; and the country that may be so designated may be either or both of the following, that is to say—
(i)
the country in which the ship is registered; and
(ii)
any country specified in the regulations for the purposes of this paragraph;
(e)
to provide for the conversion of the special drawing rights referred to in this Act into the amount of money expressed in
Ringgit Malaysia;
(f)
to provide for any other matter which is required by any provisions of this Act to be provided for by regulations.
(3)
If a person required by regulations under paragraph (2)(c) to deliver up a certificate fails to do so, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit.
Power to amend Schedules
Section 30
The Minister may by order published in the Gazette amend, add to or vary the Schedules to this Act.
_________________________
Merchant Shipping (Liability and 39
Compensation for Oil and Bunker Oil Pollution)
FIRST SCHEDULE
[Subsection 6(2)]
LIMITATION OF LIABILITY OF OWNER OF SHIP
The owner of a ship shall be entitled to limit his liability in respect of any one incident to an aggregate amount calculated as follows:
(a)
for a ship not exceeding five thousand units of tonnage, 4,510,000 special drawing rights;
(b)
for a ship with a tonnage in excess of five thousand units of tonnage,
4,510,000 special drawing rights plus an additional 631 special drawing rights for each additional unit of tonnage:
Provided however, that this aggregate amount shall not in any event exceed 89,770,00 special drawing rights.
_____________
[Subsection 19(6)]
OVERALL LIMIT ON LIABILITY OF FUND
Section 1
(2)
Except as otherwise provided in subparagraph (3), the aggregate amount of compensation payable by the Fund for pollution damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 203,000,000 special drawing rights.
(2)
shall be 300,740,000 special drawing rights with respect to any incident occurring during any period when there are three Fund Convention countries in respect of which the combined relevant quantity of oil received by persons in the
40 Laws of Malaysia ACT 515
territories of such countries during the preceding calendar year is not less than 600
million tons.
(4)
Interest accrued on the amount paid into Court under section 7 of this Act, if any, shall not be taken into account for the computation of the maximum compensation payable by the Fund under this Act.
Section 2
Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 1, 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 Act shall be the same for all claimants.
Section 3
A certificate given by the Director of the Fund stating that subparagraph 1(3) is applicable to any claim under section 19 shall be conclusive evidence for the purposes of Part III of this Act.
_____________
SECOND SCHEDULE
[Subsection 24 (3)]
STATE PARTIES TO THE CIVIL LIABILITY CONVENTION
Albania
Lithuania
Algeria
Luxembourg
Angola
Madagascar
Antigua and Barbuda
Maldives
Argentina
Malta
Australia
Marshall Islands
Azerbaijan
Mauritius
Bahamas
Mexico
Bahrain
Monaco
Barbados
Mongolia
Belgium
Morocco
Belize
Mozambique
Brunei Darussalam
Namibia
Merchant Shipping (Liability and 41
Compensation for Oil and Bunker Oil Pollution)
Bulgaria
Netherlands
Cambodia
New Zealand
Cameroon
Nigeria
Canada
Norway
Cape Verde
Oman
Chile
Pakistan
Colombia
Panama
Comoros
Papua New Guinea
Congo
People’s Republic of China
Cook Islands
Peru
Croatia
Philippines
Cyprus
Poland
Denmark
Portugal
Djibouti
Qatar
Dominica
Republic of Korea
Dominican Republic
Republic of Moldova
Ecuador
Romania
Egypt
Russian Federation
El Salvador
Saint Kitts and Nevis
Estonia
Saint Lucia
Fiji
Saint Vincent and Grenadines
Finland
Samoa
France
Saudi Arabia
Gabon
Seychelles
Georgia
Sierra Leone
Germany
Singapore
Ghana
Slovenia
42 Laws of Malaysia ACT 515
Greece
Solomon Islands
Grenada
South Africa
Guinea
Spain
Hong
Kong
Special
Administrative Region of the
People’s Republic of China
Sri Lanka
Sweden
Hungary
Switzerland
Iceland
Syrian Arab Republic
India
Tonga
Indonesia
Trinidad and Tobago
Ireland
Tunisia
Islamic Republic of Iran
Turkey
Israel
Tuvalu
Italy
Ukraine
Jamaica
United Arab Emirates
Japan
United Kingdom
Kenya
United Republic of Tanzania
Kiribati
Uruguay
Kuwait
Vanuatu
Latvia
Venezuela
Lebanon
Vietnam
Liberia
Yemen
STATE PARTIES TO THE FUND CONVENTION
Albania
Liberia
Algeria
Lithuania
Angola
Luxembourg
Antigua and Barbuda
Madagascar
Merchant Shipping (Liability and 43
Compensation for Oil and Bunker Oil Pollution)
Argentina
Maldives
Australia
Malta
Bahamas
Marshall Islands
Bahrain
Mauritius
Barbados
Mexico
Belgium
Monaco
Belize
Morocco
Brunei Darussalam
Mozambique
Bulgaria
Namibia
Cambodia
Netherlands
Cameroon
New Zealand
Canada
Nigeria
Cape Verde
Norway
Colombia
Oman
Comoros
Panama
Congo
Papua New Guinea
Cook Islands
Philippines
Croatia
Poland
Cyprus
Portugal
Denmark
Qatar
Djibouti
Republic of Korea
Dominica
Russian Federation
Dominican Republic
Saint Kitts and Nevis
Ecuador
Saint Lucia
Estonia
Saint Vincent and Grenadines
Fiji
Samoa
Finland
Seychelles
44 Laws of Malaysia ACT 515
France
Sierra Leone
Gabon
Singapore
Georgia
Slovenia
Germany
South Africa
Ghana
Spain
Greece
Sri Lanka
Grenada
Sweden
Guinea
Switzerland
Hong
Kong
Special
Administrative Region of the
People’s Republic of China
Syrian Arab Republic
Tonga
Hungary
Trinidad and Tobago
Iceland
Tunisia
India
Turkey
Ireland
Tuvalu
Islamic Republic of Iran
United Arab Emirates
Israel
United Kingdom
Italy
United Republic of Tanzania
Jamaica
Uruguay
Japan
Vanuatu
Kenya
Venezuela
Kiribati
Latvia
STATE PARTIES TO THE BUNKERS CONVENTION
Albania
Liberia
Antigua and Barbuda
Lithuania
Australia
Luxembourg
Merchant Shipping (Liability and 45
Compensation for Oil and Bunker Oil Pollution)
Bahamas
Malta
Barbados
Marshall Islands
Belgium
Morocco
Bulgaria
Norway
Canada
Panama
Cook Islands
People’s Republic of China
Croatia
Poland
Cyprus
Republic of Korea
Democratic People’s Republic of Korea
Romania
Denmark
Russian Federation
Egypt
Saint Kitts and Nevis
Estonia
Saint Vincent and Grenadines
Ethiopia
Samoa
Finland
Sierra Leone
Germany
Singapore
Greece
Slovenia
Hungary
Spain
Ireland
Syria
Jamaica
Tonga
Jordan
Tuvalu
Kiribati
United Kingdom
Latvia
Vanuatu
_____________________
46
Act 515
LIST OF AMENDMENTS
Amending law
Short title
In force from
Merchant Shipping (Oil Pollution)
(Amendment) Act 2005 15-09-2005
Act A1394
Merchant Shipping (Oil Pollution)
(Amendment) Act 2011 01-03-2014
_____________
47
Act 515
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
Long title
Short title
Act A1394 01-03-2014 2
Act A1394 15-09-2005 01-03-2014
Part II
Part II (Heading)
Act A1394 01-03-2014 3
Act A1248 15-09-2005 3A
Act A1394 01-03-2014 4
Act A1394 01-03-2014 5
Act A1394 15-09-2005 01-03-2014 5A
Act A1394 01-03-2014 6
Act A1248 15-09-2005 6A
Act A1394 01-03-2014 7
Act A1394 01-03-2014 8
Act A1394 01-03-2014 9
48 Laws of Malaysia ACT 515
Section
Amending authority
In force from 10
Act A1394 01-03-2014 11
Act A1394 15-09-2005 01-03-2014 11A
Act A1394 01-03-2014 12
Act A1394 01-03-2014 13
Act A1394 15-09-2005 01-03-2014 14
Act A1394 01-03-2014 15
Act A1248 15-09-2005 17
Act A1248 15-09-2005 19
Act A1248 15-09-2005 20
Act A1248 15-09-2005 21
Act A1248 15-09-2005 22
Act A1248 15-09-2005 23
Act A1394 01-03-2014 24
Act A1394 15-09-2005 01-03-2014 26
Act A1394 01-03-2014 28A
Act A1394 01-03-2014 29
Act A1394 01-03-2014 30
Act A1248 15-09-2005
First Schedule
Second Schedule
Act 1248 15-09-2005 15-9-2005
Merchant Shipping (Liability and 49
Compensation for Oil and Bunker Oil Pollution)
Section
Amending authority
In force from
_____________
Common questions
- What is MERCHANT SHIPPING (OIL POLLUTION) ACT 1994?
- *MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 is Malaysia Act, cited as Act 515 1994, currently marked in force and first recorded in 1994.
- Is MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 still in force?
- Yes — MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 is currently in force.
- When did MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 take effect?
- MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 was first recorded in 1994.
- How many sections does MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 have?
- MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 contains 38 sections.
- What amends MERCHANT SHIPPING (OIL POLLUTION) ACT 1994?
- MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 has been amended by AKTA PERKAPALAN SAUDAGAR (PENCEMARAN MINYAK) (PINDAAN) 2011.
- Where can I read the official version of MERCHANT SHIPPING (OIL POLLUTION) ACT 1994?
- The official text of MERCHANT SHIPPING (OIL POLLUTION) ACT 1994 is published at lom.agc.gov.my.