MERCHANT SHIPPING (OIL POLLUTION) ACT 1994

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 515 MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL AND BUNKER OIL POLLUTION) ACT 1994 As at 1 June 2015 2 MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL AND BUNKER OIL POLLUTION) ACT 1994 Date of Royal Assent … … … … … 15 February 1994 Date of publication in the Gazette … … … 24 February 1994 Latest amendment made by Act A1394 which came into operation on … … … … 1 Mac 2014 … PREVIOUS REPRINTS First Reprint … … … 2002 Second Reprint … … … 2005 Third Reprint … … … 2006 3 LAWS OF MALAYSIA Act 515 MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL AND BUNKER OIL POLLUTION) ACT 1994 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and commencement 2. Interpretation PART II CIVIL LIABILITY FOR OIL AND BUNKER OIL POLLUTION 3. Liability for oil pollution 3A. Liability for bunker oil pollution 4. Exceptions from liability under section 3 or 3 A 5. Restriction of liability for oil pollution damage under section 3 5A. Restriction of liability for bunker oil pollution damage under section 3 A 6. Limitation of liability under section 3 6A. Limitation of liability under section 3A 7. Limitation actions 8. Restriction on enforcement of claims after establishment of limitation fund 9. Limitation fund outside Malaysia 10. Extinguishment of claims 11. Compulsory insurance against liability for oil pollution 4 Laws of Malaysia ACT 515 Section 11A. Compulsory insurance against liability for bunker oil pollution 12. Issue of certificate by Director of Marine 13. Rights of third parties against insurers 14. Government ships PART III THE INTERNATIONAL OIL POLLUTION COMPENSATION FUND 15. Interpretation 16. Legal personality of the Fund 17. Contributions by persons who receive oil 18. Power to obtain information 19. Liability of the Fund 20. (Deleted) 21. Extinguishment of claims 22. Subrogation and rights of recourse PART IV JURISDICTION AND EFFECT OF JUDGEMENTS 23. Jurisdiction and effect of judgements 24. Enforcement of judgements PART V ENFORCEMENT 25. Director of Marine to carry out powers and duties under this Act or regulations made thereunder 26. Power of arrest and detention 27. Power to board and search ships 5 Laws of Malaysia PART VI MISCELLANEOUS Section 28. Offences by body corporate 28A. Prosecution 29. Power to make regulations 30. Power to amend schedules FIRST SCHEDULE SECOND SCHEDULE ACT 515 7 LAWS OF MALAYSIA Act 515 MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL AND BUNKER OIL POLLUTION) ACT 1994 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 PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Merchant Shipping (Liability and Compensation for Oil and Bunker Oil Pollution) Act 1994. (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 2. (1) In this Act, unless the context otherwise requires— 8 Laws of Malaysia ACT 515 “authorized officer” means a port officer as defined in section 2 of the Merchant Shipping Ordinance 1952 [Ord. 70 of 1952] or any authorized officer under section 25; “Bunkers Convention” means the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 signed in London on 23 March 2001; “Bunkers Convention country” means a country in respect of which the Bunkers Convention is in force; “bunker oil” means any hydrocarbon mineral oil, including lubricating oil, used or intended to be used for the operation or propulsion of the ship, and any residues of such oil; “Court” means the High Court in Malaya and the High Court in Sabah and Sarawak, as the case may be; “Director of Marine” means the Director of Marine appointed under subsection 8(1) of the Merchant Shipping Ordinance 1952; “exclusive economic zone”, in relation to Malaysia, is the exclusive economic zone determined under the Exclusive Economic Zone Act 1984 [Act 311]; “incident” means any occurrence, or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage; “Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage signed in London on 27 November 1992; “Liability Convention country” means a country in respect of which the Liability Convention is in force; “master” has the same meaning assigned to it under the Merchant Shipping Ordinance 1952; Merchant Shipping (Liability and Compensation for Oil and Bunker Oil Pollution) 9 “Minister” means the Minister charged with the responsibility for merchant shipping; “oil”, except in Part III, means any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such a ship; “owner”— (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 Compensation for Oil and Bunker Oil Pollution) 11 (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 CIVIL LIABILITY FOR OIL AND BUNKER OIL POLLUTION Liability for oil pollution 3. (1) The owner of a ship at the time of an incident, or where the incident consists of a series of occurrences, at the time of the first 12 Laws of Malaysia ACT 515 occurrence, shall, except as otherwise provided for by this Act, be liable for any pollution damage caused by the ship as a result of the incident in area of Malaysia. (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 3A. (1) The owner of a ship at the time of an incident, or where the incident consists of a series of occurrences having the same origin, at the time of the first occurrence, shall, except as otherwise provided for by this Act, be liable for any pollution damage caused by the ship as a result of the incident in any area of Malaysia. (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 Compensation for Oil and Bunker Oil Pollution) 13 Exceptions from liability under section 3 or 3A 4. (1) The owner of a ship from which oil or bunker oil has been discharged or has escaped shall not incur any liability for pollution damage under section 3 or 3A if he proves that the discharge or escape— (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 omissio