Section 18 basically ensures that any pollution which is not covered under this proposed legislation will be covered under the Merchant Shipping Act, 1894, for example substances other than oil from vessels which carry oil as cargo.
Oil Pollution of the Sea (Civil Liability and Compensation) Bill, 1987 [Seanad]: Committee Stage (Resumed).
Amendment No. 16 in the name of Deputy Avril Doyle. The more pertinent amendment is that which has been circulated on a single sheet. I understand this is a revised amendment.
I move amendment No. 16:
In page 18, subsection (1) (c), line 43, after "or" to insert "he was not given a fair opportunity to defend his case, including, where he could not be present in the Convention Country, due to political circumstances, an opportunity to give evidence in the State before an examiner appointed by the relevant authority in the Convention Country; or".
This is a revised amendment which I circulated to the House this morning and one on which I hope the Minister has had time to take advice. This amendment is necessary and I would nearly go so far as to say that it is abundantly evident why it is necessary. It is really to close off a loophole which I think is very evident in this section whereby in certain circumstances it would not be possible for a person to gain entry into a country to defend a case. The claimant must have access to the courts of the relevant State in the event of a claim for pollution. In fact, such an amendment was accepted from the Israeli delegates during the drafting of the Civil Liability Convention in Brussels in 1969 and I wonder why we have no provision for it in our law.
I can only refer to the Deputy's earlier amendment because I have only just now received a copy of the revised amendment, No. 16. I want to refer briefly to the original amendment.
I accept that the original amendment would have caused problems for the Minister. He may like to take the revised amendment to Report Stage and comment on it then.
After reading the amendment, I would like to be able to respond to it. I would refer the Deputy to section 28 (1) (b). I believe that the amendment to which the Deputy refers is already covered by this subsection. Section 28 (1) (b) states that a determination made in a Convention country shall not be recognised or enforced in the State if it is manifestly contrary to public policy in the State. I have been advised just now that that subsection covers the amendment which Deputy Doyle has tabled. While there is some merit in the amendment, it is covered.
I do not accept what the Minister has said, with respect to him and his advice. Quite frankly, I do not accept that section 28 (1) (b) covers what my amendment is intended to cover. Inability to gain access to or entry into a State to defend a case might not be public policy in that State because of particular circumstances, which is quite different from public policy generally. Political circumstances often give rise to inability to gain entry into a country. In this case it would be political circumstances preventing entry to defend the case. An example given during the 1969 drafting of the Convention which, after all, is what we are trying to ratify today, was that an Israeli in a Syrian court would have particular difficulties in making his claim. Where one draws the line between what is manifestly public policy and particular internecine type or other disagreements between two neighbouring States, I am not sure. I do not accept that section 28 (1) (b) covers the point which is alluded to in section 28 (1) (c), effectively, as well.
My amendment is to flesh out, as it were, subsection (1) (c) and to clarify exactly what is being alluded to there. I feel very strongly that as this amendment was accepted from the Israeli delegates during the original drafting in 1969 of the Civil Liability Convention, we should have it here, too. In one argument the Minister says that we must stick as closely as possible to the wording and intention of the Convention which we are trying to ratify and then, with respect, he departs from that argument whenever he feels that he can and justifies that by giving different reasons, usually telling me that his view is now better than the Conventions. We really ought to sort ourselves out on this. Either we stick strictly to the Convention line on this or we do not. In this country, above all, we are aware of difficulties that can arise from political circumstances. We should take cognisance of this aspect. I ask Minister please to take my amendment on board for those very reasons.
My early intervention referred to public policy in this State and I am quite satisfied, having discussed this with the Attorney General, that the original amendment and the advice which is now available to me from the Attorney General since the amended amendment was substituted this morning covers this adequately. Despite what people may do in other countries, I take the view based on the advice available to me that section 28 (1) (b) more than adequately covers the situation.
Could the Minister not foresee circumstances when it would be in the interests of this State to be able to defend a case which is brought? He is putting the matter solely from the point of view of protecting the State's interests, that they will not defend a case taken against us if the public policy of the country concerned causes particular difficulties on entry. When it is in the interests of this State, or any claimant, or any person involved in this State in relation to another country's claim, surely we should ensure that a determination is not made or a hearing does not proceed without those involved being able to gain entry to defend those proceedings?
If we look to the next section or, possibly, to an earlier one, in the event of one not being in a position to defend oneself, to enter a plea — and I assume it is a plea of not guilty — when one is not there to put forward an extenuating case then it is not a question of not defending the case. One is innocent until proven guilty even if one is not represented in court. It is a matter for the courts to decide.
I ask the Minister to consider my amendment which, as it was circulated only this morning, I accept he has not had time to consider in depth. I would ask the Leas-Cheann Comhairle to allow me to re-enter it on Report Stage.
There is no difficulty.
I thank the Leas-Cheann Comhairle.
There is one part of this section about which I have some reservations. It concerns subsection (3), which states:
The Court may relieve the owner of a ship, his guarantor or the Fund wholly or partially from liability to a person for pollution damage if it is proved that the damage resulted wholly or partially from the negligence of that person or that the damage was contributed to by any act or omission of such person which was calculated to cause damage.
Again, during the drafting of the Civil Liability Convention in Brussels in 1969, the USSR had an amendment to the draft Convention in relation to this area. I think I am right in saying that this section was amended in the Seanad. I am subject to correction on that. I am refreshing my mind as I read this. Any difficulties that may have arisen were, I think, resolved in the Seanad. Could the Minister confirm that that is so?
I do not have the original draft here, but I do recall a number of amendments and I believe that section 30 was involved. I can have that matter checked.
It is coming back to me as I speak. This is the amended version and it was amended in the Seanad. It is normal procedure, when a State is ratifying a Convention, that one tries to take on board the wording and script of the Convention so that there is unity among the different Convention countries in relation to the application of the different laws. The original amendment from the Seanad — and I stand to be corrected on this — was not as worded under section 30(3). However, I believe that what is before us now is the wording according to the amendment proposed by the USSR in 1969 when the original Civil Liability Convention was being drafted. I wonder if the Minister could confirm this? If so, why did he not have this Amendment included in the Bill as circulated originally.
I am checking the text of the original draft.
I have it here.
The last line of the original draft was "or that the damage was contributed to by any act or omission of such person which was calculated to cause damage". While it was debated in the Seanad it appears that the wording is precisely the same as originally drafted.
I think the Minister is right, I am checking the two copies. Perhaps I could let the point stand and the Minister could respond on Report Stage. I am concerned that the different amendments accepted during the drafting of the Convention from the different countries in 1969 at the conference on marine pollution damage should also be taken on board.
There was one amendment; the "wholly" or "partially" wording appears to be new.
Yes, "wholly" was inserted in cases where there were exceptions from liability. I am assuming that was the reason for the amendment in the Seanad. Is that what the Minister was advised?
That is the note I have but, as we started discussing this last December, I was trying to recall the exact reasons for questioning the particular item. We are now in line with the Civil Liability Convention on subsection 33. Is that correct?
The Convention was so drafted following a USSR amendment at the original conference in Brussels.
I can only confirm that the USSR ratified it in September last year. I am not aware of what was done at the drafting stage in Brussels in 1969.
I accept that.
Amendments Nos. 36 and 37 are related to amendment No. 17 and are alternative. Accordingly, it is proposed to discuss amendments Nos. 17, 36 and 37 together.
I move amendment No. 17:
In page 21, subsection (2), lines 29 and 30, to delete paragraph (g), and substitute the following:
"(g) require a witness to make and subscribe a declaration of the truth of any statements mady by him at his examination; such subscribed statements shall be deemed to be a document kept in pursuance of this Act for the purposes of section 41;".
This amendment is to plug the loophole that exists due to the absence of the Civil Evidence Act in Ireland whereby declarations of the kind to be made under this section may not be admissible in the courts. The amendment is necessary to ensure that the declaration is covered by section 41. Amendment No. 37 is intended to permit a captain who has joined a ship after a pollution incident to make certified copies of the entries made by his predecessor. This is also necessary because of the absence of the Civil Evidence Act here. The Act operates in the UK where they do not have this kind of difficulty; it is part of the complications of our present legal system. My amendments are necessary because of the Irish situation in relation to evidence and evidential presentation in court generally.
In inserting a new section 41, having discussed with the legal advisers after the Second Stage debate and the points made by Deputy Doyle then, we have gone as far as we can in inserting a further amendment. The statements referred to in section 32 (2) (g) concerns the powers of enforcement and will be covered by the provisions of section 41 of the Bill. The new section 41 takes on board the suggestions made by Deputy Doyle and it is not now necessary to amend paragraph (g) as proposed in her amendment. We have taken the Deputy's point and gone as far down the road as possible to meet her.
We are talking about three amendments — one in the name of the Minister — and he said that amendments Nos. 17 and 37 are now unnecessary because of his amendment No. 36. Is that correct?
Yes, by and large.
I agree with the "by and large" but they are not quite the same. Amendment No. 36, in the name of the Minister, does not make it entirely clear if the successor in office of the person who made the original entry may make a certified copy, which is the point I want to establish beyond doubt. Can the Minister elaborate on that in relation to his amendment because if that point is not copperfastened in his amendment there could be difficulties? If the Minister can point out where he copperfastens my intentions in that regard, I will accept what he says.
Amendment No. 36 states:
(b) ... to be a true copy, certified as such by the person by whom the document is kept, of a document or of an entry therein,
shall, unless the contrary is shown, be presumed to be such and shall be admissible, without further proof, as evidence of the facts therein.
That takes into consideration the case to which the Deputy referred in a changeover and, in that situation, the document will be admissible without further proof. It is unnecessary to accept amendment No. 37.
My advice in relation to the Minister's amendment vis-à-vis my amendments is that the Minister's wording is not entirely clear. Section (b) could be a fruitful source of litigation in the event of the person keeping the document at present not being the original person who made the copy of the document. I do not know if it would be accepted that the person now keeping the document could certify it was a true copy if he was not the person who made the original copy. There is room for argument. I accept that the Minister's intention is to cover the point I made on Second Stage but my advice is that there is still ambiguity in that regard. I do not have any other difficulty with it and I accept that its thrust is what I requested on Second Stage and that the Minister has accommodated me.
I believe it is covered and I am advised that it is not considered appropriate to refer to successors in office.
Is there a reason?
The legal advice given to me is that section 36 embodies all the points. My advisers say they can see no difficulty about this. However, this meant that we had to permit the insertion of a new section 41.
I accept the advice given to the Minister but my reservations are on the record. I accept that the thrust of the Minister's amendment is to accommodate the fears I expressed on Second Stage in relation to evidential requirements generally and that the Minister has gone a long way towards accommodating my fears but I hope his move will prove sufficient.
The next amendment is No. 18 and as No. 19 is related we will discuss the two amendments together.
I am prepared to withdraw amendment No. 18 as I feel the proposal is adequately covered either by my amendment or the Minister's later amendment, which is to insert a new section 41. I accept the Minister's amendment and I will not press my amendment.
The terms of my amendment No. 19 to this section are adequately covered by the Minister's amendment which has been accepted.
We now move to amendment No. 20 in the name of the Minister. Amendment No. 22 is related and the two amendments may be discussed together.
I move amendment No. 20:
In page 22, lines 39 to 41, to delete "Whenever an inspector, in exercise of his powers under this Act, or a harbour-master, in exercise of the powers conferred on him by section 16," and substitute "Whenever an inspector or a harbour-master, in exercise of the powers conferred by section 13 (3) or section 16,".
The object of my amendment is to make it clear that provisions of section 34 relating to the detention of ships refer to an inspector or harbour-master exercising the powers conferred on them by section 13 (3) or section 16. In the case of section 13 (3) a ship may be detained or be further detained if he attempts to leave any place in the State after being stopped and detained if it appeared that the owner of that ship had incurred a liability for pollution damage. Under section 16 a ship may be stopped and detained in any place in the State if it attempts to leave in contravention of that section which provides that the master of a ship shall produce a certificate in relation to the existence of a contract of insurance in respect of a ship. I am meeting the point made by the Deputy in amendment No. 22 by the inclusion of reference to section 13(3) in my amendment.
I will not be opposing the Minister's amendment. It attempts to clarify a section that I, and the general public, found very confusing. I made that very clear on Second Stage. The Minister has dealt with my main fear, that under section 13 there could be contravention of the Civil Liability Convention. I accept the Minister's assurance that his amendment brings in sections 13 and 16 in relation to the powers we have been discussing. Had amendment No. 8 been accepted I would have been requesting the deletion of section 34. Had it been accepted in lieu of the detention provisions under section 13 (1) the powers of detention would remain in the Bill under section 16 for ships which do not have certificates of insurance. It would then be unnecessary to bring such ships before a court to continue their detention as per section 34. They would simply remain detained until they produced a valid certificate. That is the procedure under the merchant shipping Acts where certificates are required before sailing. As amendment No. 8 was rejected by the House we must accept section 34. I would prefer if the House had deleted this but the second best thing is for the House to accept the Minister's amendment which goes some way towards meeting the fears I expressed on Second Stage.
On Second Stage I made the point that it appeared that words were missing from subsection (b). Has the Minister resolved that difficulty? In the course of my Second Stage speech, I said that under section 34 an inspector who detains a ship will have to go to the District Court and indicate that there is a contravention of the Act when, in fact, there would be no contravention of the Act because the Act provides that if the ship is insured we would be dealing with a civil action. Have my fears in relation to that aspect been dealt with in the Minister's amendment?
Amendment No. 26 covers the point made by Deputy Doyle. The object of the amendment is to rectify an omission in the Bill which was brought to my attention by Deputy Doyle.
We should move along in the safest way possible by dealing with the amendment before us, No. 20. Is that amendment accepted by the House?
As a result of the House accepting amendment No. 20 amendments Nos. 21 and 22 may not be moved.
Amendment No. 23 has already been discussed.
Some of the amendments relating to harbour-masters will come before us again on Report Stage. On the basis of being given leave to re-enter amendments on Report Stage I am happy not to press this one.
Amendments Nos. 23, 24 and 25 which have been discussed are not being moved.
I move amendment No. 26:
In page 23, paragraph (b), line 12, to delete "if" and substitute "bring the master of the ship against whom".
The object of this amendment is to rectify the omission referred to by the Opposition's spokesperson during the Second Stage debate. We can allay the fears expressed by making this amendment.
I move amendment No. 32:
In page 24, before section 36, to insert the following new section:
"Whenever security is given by a defendant pursuant to section 35 for the payment of the maximum or any fine imposed in respect of an offence under this Act and for the estimated costs of any trials, appeals or other proceedings in respect of such an offence, the court may, when the trial, appeal or other proceedings, as the case may, has or have been finally determined, if it decides that it is proper so to do, on application from the Minister, direct that the whole of the amount of the security, or such part thereof as may be necessary to discharge the amount of the fine imposed in respect of the offence together with the amount of any costs awarded in respect of any trial, appeal or other proceeding, be paid out to the Minister."
This amendment is put forward on the advice of the Attorney General. Section 35 provides that when in respect of an offence under this Act an order is made detaining a ship a district justice may, if satisfactory security is given, order the ship to be released pending the hearing of the charge against the ship. The object of this amendment is to make it clear that following the hearing of the charge the fine, if any, and the costs of the trial may be paid to the Minister for the Marine out of the security lodged in the court. When a bond is lodged in court it is a guarantee to the court and there is no liability on the court to pay the fine to the Exchequer out of that bond. This is to enable any fine at District Court level to be paid for out of the bond or security.
This comes back to mixing criminal law and civil law. If the Minister had seen fit to accept my amendment No. 8 to section 13 this would be unnecessary. Now we are seeing ministerial amendments to several sections designed to resolve the difficulties I highlighted in relation to section 13 on Second Stage. It would have been a far tidier and legally more acceptable operation to have deleted section 13 and accepted my new section. This amendment would then be entirely unnecessary. The draconian provisions could effectively be worthless. The security envisaged for disposal under this section will, in the major cases where limitation of liability is involved, have already been released by the court under section 13 (2) (a) and in minor cases where no limitation of liability is involved there appears to be no provision for meeting the claims of the public, such as fishermen and environmental groups who have had to clean up damage caused by oil pollution. It appears that some proceedings will take place in the criminal courts and some in the High Court. Again there is confusion between civil and criminal proceedings, a point I have reiterated several times. This Bill must dovetail into existing law rather than create a new layer, which it will effectively do. All this confusion stems from section 13 which is quite unsatisfactory and will prove a fruitful source of litigation over the years. I fear it could make the Bill unworkable in many instances. We are all trying to make the Bill a success and to protect our coastline from pollution damage. Even in the best regulated circumstances accidents will occur, but we must ensure that the country and the immediate community are adequately compensated for any damage.
I am not satisfied with this amendment. It may be necessary since we are stuck with section 13 and it may help to ameliorate the difficulties which are evident in that section. The draconian provisions could be worthless since those we are trying to help may not get any damage compensation. It may not be available for them when it is needed.
I agree that if we had accepted amendment No. 8 to section 13 it would have made the Bill shorter rather than tidier but not as effective as it should be. This section is designed to deal with fines arising out of criminal proceedings. It has absolutely nothing to do with liability actions. This refers to a case where a vessel which has been detained tries to leave the jurisdiction. If a bond is lodged in the District Court in order to have the vessel released and a fine is subsequently imposed when the case is heard, that fine may be paid out of the bond. Heretofore that would not have been possible. I agree that if we had accepted amendment No. 8 it would have changed the Bill completely and sections 34, 35 and 36 would have been unnecessary. I hold the view that it is absolutely essential to give the officers and harbour-masters the power to detain these vessels so that we can act as expeditiously as possible. We have covered that ground many times and we agree to differ.
I would like to receive confirmation from the Minister of State that following the passage of this Bill all will be in order in relation to section 36 which states that in every case within two years from the date of the offence summary proceedings may be instituted under this Bill. I mentioned earlier that there could be an important abridgment of a claimant's rights in relation to his bringing an action within six years of a pollution incident and within three years of the date of damage. The present law allows him six years from the date of damage in those cases where he can prove fault on the part of captain and crew. Once this Bill is passed the old limitation period will only apply where the claimant can prove fault on the part of the shipowner. This again refers to the Jurisdiction of Courts and Enforcement of Judgments Bill and I wonder whether it will have any knock-on effects in relation to this provision.
Absolutely none. The time of three years and six years will refer only to civil cases in the High Court. In this new section a time of two years will apply from the date of the offence. The part of the section which reads "if, at the expiry of that period, the person to be charged is outside the State, within two months of the date on which he next enters the State" refers to criminal proceedings. Therefore, one will not affect the other.
It is not very tidy to have different statutes of limitations operating in relation to this but if the Minister of State feels that everything is in order I will be advised by him on it.
I move amendment No. 33:
In page 24, before section 37, to insert the following new section:
37. —Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other official of such body, such person shall also be guilty of an offence.".
The objective of this amendment is to provide that any director, manager, secretary or any other official of a body corporate which committed an offence shall also be guilty of an offence in certain specified circumstances. I believe that this is necessary so as to ensure that if any corporate body is responsible for pollution the managing director, secretary or an official cannot walk away. This amendment removes the iron curtain between the company and the individual and it would put an onus on the individual as well as the company.
Amendment No. 34 has already been discussed.
Again, this amendment is consequential on the other amendment we will be discussing on Report Stage.
I move amendment No. 36:
In page 25, before section 41, to insert the following new section:
"41. —Every document purporting—
(a) to be kept in pursuance of this Act, the Oil Pollution of the Sea Acts, 1956 to 1977, the Liability Convention or the Fund Convention or any Convention or Protocol amending or extending either of those Conventions, or
(b) to be a true copy, certified as such by the person by whom the document is kept, of a document or of an entry therein,
shall, unless the contrary is shown, be presumed to be such and shall be admissible, without further proof, as evidence of the facts therein.".
Amendment No. 37 in the name of Deputy Avril Doyle may not be moved.
That will be discussed on Report Stage next week.
Could the Minister of State indicate what fees he is likely to be collecting under this Bill?
Vessels to be covered in this country would have to be inspected by officers of the Department. Now more than at any other time it is necessary to ensure that the State is covered. There is no question of these fees being exorbitant. The fees will be realistic even though they have not yet been worked out. That will be a matter for the Minister but they certainly will not be exorbitant.
When is it proposed to take Report Stage?
Next Tuesday, subject to agreement between the Whips.