Does "compensation" take into account, apart from the obvious damage and the cost to local authorities or to the State of having to clear an oil spill, all the work done by voluntary organisations in the clean up of the environment after an oil spill such as the cleaning of birds, sea shore, beaches etc? Will "compensation" cover that as well as the actual compensation? Will it take account of actions of voluntary bodies?
Oil Pollution of the Sea (Civil Liability and Compensation) Bill, 1987: Committee and Final Stages.
Sections 1 and 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Section 3 defines terms which are of general application throughout the Bill. In the unfortunate event of an oil spillage all of the claims would be lodged and then it would be a matter for the legal people to decide, and for the conventions themselves to decide, the precise sum we should receive. We would certainly insist on a total claim being presented to the insurers and we would have discussions with the other relevant bodies such as the local authority. We would, on their behalf or in conjunction with them, lodge a claim.
Subsection (1) reads:
"crude oil" has the meaning specified in section 19;
"discharge", in relation to oil, means any discharge or escape of oil however caused;
Does the Bill relate only to a ship carrying a cargo of oil or does it relate to a spillage of engine oil from another type of cargo ship? As we are all aware this Bill was introduced following the discovery of deficiencies in the existing law as revealed by the famous Kowloon Bridge disaster last year. That was a big disaster but the Kowloon Bridge was carrying a cargo of ore and it was the engine oil that caused the pollution.
At that time off the Cork coast there was another incident involving an oil carrying cargo ship and if there had been a disaster with that, bad and all as the Kowloon Bridge was, it would have been a lot worse. When the section says “discharge” of oil, does it mean discharge of oil as a cargo or will it also include compensation for the discharge of engine oil as in the case of the Kowloon Bridge?
We will be dealing with that on section 7. In relation to the questions the Senator has raised, and which are very appropriate, this Bill covers liability and compensation for oil pollution damage from laden oil tankers, tankers carrying oil as cargo, irrespective of their size, and irrespective of whether the spillage is from cargo or from bunker oil. In relation to the case of the Kowloon Bridge when damage was caused by its own fuel oil while it was carrying another type of cargo, there is other legislation which will be updated to cover that. We are considering strengthening the existing powers of the Merchant Shipping (Emergency Powers) Act to deal with contingencies such as the Kowloon Bridge. To answer directly the Senator's question, this section covers the damage from laden oil tankers, irrespective of size and irrespective of whether the spillage is from cargo or bunker oil. It does not cover a vessel carrying other types of material; as cargo there is other legislation to cover that.
Notwithstanding what is in section 7, would it not have been appropriate in this Bill, seeing that it is dealing with oil pollution of the sea, to cover any type of oil pollution of the sea, apart from oil cargo ships polluting the sea? The other ship I was trying to think of was the Capo Emma, which, as the Minister will be aware, was thought might go aground at the time of the Kowloon Bridge. This legislation does not cover problems like those that arose at the time of the Kowloon Bridge disaster but covers pollution caused by ships like the Capo Emma. As this is an oil pollution of the sea Bill and as serious oil pollution of the sea was caused by the Kowloon Bridge should this Bill not cover that aspect also?
That may seem to be the obvious thing to do but the professional advice available to us is that we have to adhere to the two Conventions, the civil liability and the fund Conventions. The advice available to us is that we must bring in this legislation.
That seems strange because we know that the Kowloon Bridge clean-up operation cost the Department of the Environment £991,000, plus other costs, and that the Government are claiming £1.743 million in compensation in that case from the owners of the ship but we do not know if that money will be paid. We know the direct cost of the pollution in the case of the Kowloon Bridge but can we say what the hidden costs were arising out of damage to fish and marine life, to tourism and allied interests, to farming, the environment, wildlife, animals and birds? Can the Minister say what loss was caused to the fishing industry and what will be the long term effects of that leak? I am posing those questions because it is not just good enough to say that we should wait for further legislation to deal with such problems. This Bill arose because of the public outcry and public alarm after the Kowloon Bridge incident.
A number of the points made by Senator McCormack were also made in the Second Stage speech of Senator de Búitléar when he referred to the hidden costs and the hidden damage to wildlife and the sea. It is almost impossible to quantify those costs. We have submitted a claim for £1.743 million which we feel will cover all costs. I do not want to give the impression, and I do not think anybody in the Department does, that we can quantify this. I would say, with respect to the House, that this is a claim we feel will cover us. I respectfully suggest that any elaboration, or the extraction of any further information from me in relation to this, may not be helpful to the country and to the Department. I take the Senator's point about the hidden factors which were referred to by Senator de Buitléar, and other Senators, on Second Stage. The Senator will appreciate that the reason we did not take Committee Stage on that day was because of the Senator's absence, through no fault of his own. We appreciated his position as spokesman for the Marine and decided to hold it over until now.
I want to take this opportunity of publicly thanking the Minister and other Members of the Seanad who co-operated with him in doing that. I am glad to have the opportunity today to have an input. The Seanad met on a Tuesday which was unusual and I could not be there at short notice. I thank the Minister for giving me this opportunity to be here for Committee Stage.
Question put and agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
Ba mhaith liom ceist a chur ar an Aire mar gheall ar alt a seacht. I want to find out what happens if a ship is within or outside the State. How far out to sea does our jurisdiction extend regarding oil pollution? Have we a limit? The point I am making is that there could be a major disaster off our coast, maybe 200 miles out at sea, which would affect our shores. Could the Minister tell me where the liability starts?
Déanfaidh mé mo dhícheall freagra a thabhairt do Seanadóir Mac Gearailt.
The liability would cover the area out to 200 miles. However, if there is a spillage outside 200 miles and it has an effect inside the 200-mile zone, then we will lodge a claim. If it happens far out to sea it could well have detrimental effects inside our 200-mile economic zone and we will be in a position to lodge a claim. Subsection (1) determines the liability for pollution damage in the State caused by a ship carrying oil in bulk as cargo, whether such a ship is within or outside the State. The second subsection provides that any right of action of an owner of a ship regarding an incident against a third party may not be prejudiced by anything in this Act.
Section 7 states:
The following provisions shall, subject to section 8, have effect in relation to pollution damage in the State which is caused by a ship carrying oil in bulk in cargo, whether the ship is within or without the State,...
We are all aware that this Bill is necessary so that we can subscribe to the Convention of 1969, but with oil tankers getting bigger and bigger and passing near our coastline, is there any limit, apart from the compensation limit, to the size of ships carrying oil as bulk cargo?
There is no limit to the size of the cargo but I would like to point out to the House that the compensation fund is being increased from 1 December. The limitation fund increase would possibly be a pro rata increase.
This brings us back to the comparison cases. I do not think people realise that if a bulk oil carrying tanker went aground — compare it to the other case where the engine oil of the Kowloon Bridge caused so much pollution — the type of pollution caused would be unbelievable.
The purpose of this legislation is to relate to the two Conventions. It is vitally important that both of these Conventions are ratified — the Fund Convention of 1971 and the Civil Liability Convention of 1969. It has taken far too long to have these Conventions ratified. We are very much bound by the terms of both Conventions. The Fund Convention provides for the establishment of a fund financed by oil companies for repayment of compensation for oil pollution where ship owners' liabilities exceed up to a current overall maximum of £46 million approximately. The figure in the Bill is the equivalent of £52 million approximately and the new limit will apply from 1 December next. In short, the answer to the Senator's initial question in regard to limitations as to size, is that there is no limitation.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Government amendment No. 1:
In page 8, line 10, to delete "or" and substitute "and".
This is a technical amendment which I am bringing forward on the advice of the Attorney General.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
Government amendment No. 2:
In page 8, between lines 34 and 35, to insert the following paragraph:
"(e) Where, in accordance with the law of a Convention Country, an owner has limited his liability, the court, tribunal or administrative authority in that Convention Country that has the jurisdiction or power to determine liability for pollution damage and to award compensation therefor shall be exclusively competent to determine all matters relating to the appointment and distribution of any monies lodged with the court, tribunal or administrative authority, as the case may be, in respect of the owner's liability.".
The intention of this amendment is to provide that where the owner of the ship is liable for pollution damage caused by a discharge of oil which occurred without his actual fault and when he has claimed his liability in a Convention country, the court in that country shall be exclusively competent to distribute any moneys lodged with the court.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
SECTION 12.
Government amendment No. 3:
In page 9, between lines 37 and 38, to insert the following subsection:
"(3) Whenever the Court, on an application under subsection (1), orders the payment into court of any amount, the applicant shall comply with the order.".
The purpose of this amendment is to provide that where the High Court determines the limit of the liability of the owner of a ship which has or is alleged to have incurred liability for pollution damage and orders the payment into court of an amount of money, the owner concerned must pay that sum into the court.
Amendment agreed to.
Acting Chairman
Amendments Nos. 4, 5, 6 and 8 are related and may be discussed together.
Government amendment No. 4:
In page 10, line 32, to delete "subsection (4)" and substitute "subsection (2)".
Since the Bill was published I have discovered some minor textual references in it which need to be amended. This is the explanation for bringing forward these amendments.
Amendment agreed to.
Government amendment No. 5:
In page 10, line 40, to delete "subsection (4)" and substitute "subsection (2)".
Amendment agreed to.
Government amendment No. 6:
In page 10, line 44, to delete "subsection (4)" and substitute "subsection (2)".
Amendment agreed to.
Government amendment No. 7:
In page 10, line 47, to delete "any country other than the State", and substitute "a Convention Country".
This is another technical amendment which I bring forward on the advice of the Attorney General.
Amendment agreed to.
Government Amendment No. 8:
In page 11, line 4, to delete "subsection (4)" and substitute "subsection (2)".
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill".
Section 13 (1) reads:
Without prejudice to any power to detain a ship contained in any enactment, an inspector may stop or detain a ship in any harbour or a harbour-master may detain a ship in his harbour, in the State or wherever such ship may be in the State, if it appears to the inspector or, as the case may be, the harbour-master, that the owner of that ship has incurred a liability under section 7 for pollution damage caused by any ship which he owns.
In other words, that ship could be detained. I would like to ask the Minister what affect this Bill would have on the Merchant Shipping Act, 1906, which was an amendment to the 1894 Act? Under marine law this Act allowed ships under distress to come into ports to shelter or repair, other than the port of destination of the ship. What effect will this Bill have on the provision in the amended 1906 Shipping Act? Can ships that so come into ports according to the provisions of that Act, leave again at their will, or would this regulation abolish, contravene or in any way affect the amended 1906 Act in that regard?
First, I will refer to the actual section. While this section would seem somewhat complicated, subsection (1) provides that an inspector may stop or detain a ship in any harbour or that a harbourmaster may detain a ship in his harbour if it appears to either of them that the owner of the ship has incurred a liability for pollution damage by any ship he owns. Subsection (2) relates to the power of the court to release any ship detained if the person who has incurred a liability for pollution damage and is entitled to limit his liability has paid into court the amount determined to his liability. We propose updating the Merchant Shipping Act, 1987. This, I hope, would strengthen the existing powers to deal with emergencies particularly those threatening pollution. I would hope measures would be included in the Bill to update the powers regarding exclusion zones, referred to earlier, around marine casualties, establishment of a vessel reporting system for the Irish coast and the provision of adequate powers to arrest in relation to vessels breaking the law. That is what we propose to do in relation to the Merchant Shipping Act.
Subsection (3) reads:
If a ship which has been detained pursuant to this section leaves, or attempts to leave, any harbour, terminal installation, offshore terminal or any other place in the State otherwise than in the accordance with the provisions of this Act, the master of the ship shall be guilty of an offence.
I am afraid that inclusion in the new Bill would deter ships from coming into ports other than the ports of destination to shelter or for repair, and that worse damage could be caused to the ship by remaining on the open seas during a storm if repair was necessary. I am afraid this provision would discourage ships from coming into ports or harbours under distress or for repair.
It is a question of which is the better of two evils — whether they pollute the high seas or pollute the bay in which they have come to shelter. It is a very difficult question. If a ship is in distress it will come into the bay and if there is damage caused we can detain it. It is a matter of differentiating and deciding. We have the example of the Kowloon Bridge. What was the right thing to have done at that stage? We are all very wise after the event. As I said earlier, there is an insurance claim in at the moment and I appreciate that Senators do not want to pursue this while the claim is not settled because we would not want to prejudice our case in any way.
Question put and agreed to.
Sections 14 and 15 agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."
Is it the custom for the Chair to read out each section on Committee Stage? At the rate we are passing sections we could miss something we would want to bring up, but maybe it is up to Senators to be vigilant.
I appreciate that it is very difficult to understand the terminology of this legislation. Section 16 is very long and if it was helpful, I could bring Senators through it subsection by subsection.
I would appreciate that. This section mentions that a ship registered in the State shall not carry in bulk a cargo of more than 2,000 tonnes of oil unless there is in force in respect of the ship a contract of insurance, or other financial security, satisfying such requirements as may be prescribed. In the case of a ship registered in the State, there is a limit on the cargo, but apparently there is no limit on the cargo of a ship not registered in the State but that might be passing near our shores.
The quick answer to that is that that is done in their own country of registry. This section provides that a ship registered in the State shall not carry in bulk a cargo of 2,000 tonnes or more of oil and must have a contract of insurance or other financial security in respect of such cargo. That is done in the country of registry. If there is any other section the Senators want me to bring them through, I will certainly do so.
I want clarification on this small point: it is basically the cargo of these ships that is covered, not the fuel they carry for use on the oil tankers. Is the fuel for its own use covered by the insurance if something happens?
This question raises its head very frequently and I will give a very definite answer so that there can be absolutely no ambiguity. There may be a misconception that this Bill only covers boats carrying oil as cargo, and I am pleased to have the opportunity of informing the House that the Bill covers liability and compensation for oil pollution damage from laden oil tankers, irrespective of size — Senator McCormack asked earlier about the size — and irrespective of whether the spillage is from the cargo oil or bunker oil. So whether it is either or both, it is covered under this section.
Question put and agreed to.
Section 17 agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."
This section reads:
The provisions of section 503 (1) (d) of the Merchant Shipping Act 1894 shall be deemed to apply to any liability for cost of preventing or mitigating pollution damage which is not covered by this Act.
This refers again to the pollution damage to which Senator de Buitléar referred in his contribution on Second Stage. How do we determine pollution damage not covered in this measure?
This section provides that section 503 (1) (d) of the Merchant Shipping Act, 1894, applies to any liability relating to the cost of preventing or mitigating pollution damage which is not covered by this Act. In short, it is a catch-all one in order to ensure that everything is covered. It was necessary to go back to the Merchant Shipping Act of 1894, section 503 (1) (d) which reads:
Where any loss or damage is caused to any other vessel, or to any goods, merchandise, or other things whatsoever on board any other vessel, by reason of the improper navigation of the ship; be liable to damages beyond the following amounts; (that is to say), (i) In respect of loss of life or personal injury, either alone or together with loss of or damage to vessels, goods, merchandise, or other things, an aggregate amount not exceeding fifteen pounds for each ton of their ship's tonnage and in respect of loss of or damage to vessels, goods, merchandise or other things whether there be in addition loss of life or person injury or not, an aggregate amount not exceeding eight pounds for each ton of their ship's tonnage....
We wanted to include in section 18 a provision relating to section 503, which I referred to, of the Shipping Act. In short, it is a catch-all to ensure that everything is absolutely covered.
The figures the Minister gave of £15 and £8 per ton seem very small.
They are very small by today's standards but I am referring to 1894 and I can assure the Senator that there will be a pro rata increase and those will be up-dated.
Will that pro rata increase become part of the Bill then? We accept that they refer to an 1894 Bill which is nearly 100 years old now but where do we get those increased pro rata?
There is pressure on our Department and the Government have a lot of legislation coming before both Houses. One of the Bills at the end of the pipeline at the moment is the Bill up-dating the Merchant Shipping Act of 1894. When we have the opportunity of bringing that Bill before the House we will have the up-dated figures. They are not in this Bill because it is a matter for the up-dating of the Merchant Shipping Act, 1894.
Question put and agreed to.
SECTION 19.
An Leas-Chathaoirleach
Amendments Nos. 9, 10 and 11 are related and may be discussed together.
Government amendment No. 9:
In page 13, line 38, to delete "as may be calculated in accordance with" and substitute "as may be determined by the Assembly of the Fund Convention and certified by the Director of the Fund, any such sum to be determined in accordance with".
Following the publication of the Bill, the secretariat of the International Oil Pollution Compensation Fund wrote to me and suggested that I might consider making some minor changes in the Bill and, having carefully considered the matter, I have decided to bring forward amendment Nos. 9, 10 and 11 to section 19.
Amendment agreed to.
Government amendment No. 10:
In page 13, line 47, after "payable" to insert the following ",such interest to be at such rate as may, from time to time, be determined by the Assembly of the Fund Convention".
Amendment agreed to.
Government amendment No. 11:
In page 14, between lines 5 and 6, to insert the following definition:
" `the Assembly of the Fund Convention' means the Assembly specified in Article 17 of the Fund Convention.".
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.
Government amendment No. 12:
In page 14, to delete lines 34 to 47, and substitute the following subsections:
"(4) The Fund shall not be liable for pollution damage if it is proved that the discharge of oil which caused the pollution damage resulted from an act of war, hostilities, civil war or insurrection or was caused by oil which has escaped or been discharged from a warship or other ship owned or operated by the State or by a Convention Country and used, at the time of the incident, only on government noncommercial service.
(5) The Fund may be wholly or partly relieved from liability for pollution damage if it is established that the discharge of oil which caused the pollution damage was due wholly or partly to——
(a) anything done or left undone by the person who suffered the pollution damage with intent to cause damage;
or
(b) the negligence of the person who suffered the pollution damage:
Provided that this subsection shall not apply to the cost of any reasonable measures taken after an incident has occured to prevent or to minimise pollution damage.".
The purpose of this amendment is to provide that the International Oil Pollution Compensation Fund may be wholly or partially relieved from liability for pollution damage in certain circumstances. Under the Bill as published the fund was wholly relieved from such liability in stated circumstances. In considering this amendment Senators may wish to know that subsection (4) in this amendment is indentical to the first two lines at paragraph (a) of subsection (4) of the Bill as published except at "operated by the State or by a Convention Country" which has been inserted instead of "operated by a State".
Amendment agreed to.
Acting Chairman
Amendments Nos. 13 and 14 are related and may be discussed together.
Government amendment No. 13:
In page 15, to delete lines 1 to 12, and substitute the following subsections:
"(5) Subject to subsections (6) and (7), the Fund shall, in accordance with the provisions of this Act, indemnify the owner of a ship or his guarantor against this liability under section 7 or 10.
(6) A liability shall not be imposed on the Fund under subsection (5) in any case where it is established that the pollution damage resulted from the wilful misconduct of the owner of the ship.
(7) The Fund may be wholly or partly relieved from its liability under subsection (5) if it is established that, because of the actual fault or privity of the owner of the ship, the pollution damage was wholly or partly occasioned by the non-compliance with the provisions of any Convention in relation to——
(a) Safety at Sea, or
(b) Pollution of the Sea,
which may be specified by, or in accordance with, the Fund Convention.".
The intention of amendments Nos. 13 and 14 is to bring the text of certain subsections of the Bill closer in line with the wording used in corresponding articles and conventions setting up the International Oil Compensation Fund.
Amendment agreed to.
Question proposed: "That section 20, as amended, stand part of the Bill."
Can the Minister clarify the meaning of "the Fund" in the phrase "the Fund shall be liable for pollution damage in the State"?
The fund is defined in the earlier sections of the Bill. We placed a copy of the International Oil Pollution Compensation Fund in the Library of the House for the benefit of Senators. The fund is known as the Compensation Fund and prior to the enactment of this Bill voluntary subscriptions were made to it. Now there will be a statutory obligation to subscribe to this fund. One may pose the question of the statutory position and whether this will increase the price of oil. I am quite satisfied that the majority of vessels carrying oil as cargo were covered under the voluntary fund and the fact that it is now statutory to subscribe to this fund will not in any way increase the price of oil overall. I may have expanded there a little but, in short, the fund referred to is the International Oil Pollution Compensation Fund and a copy of this is available in the Library to Members of the House.
Have all oil and cargo owners to subscribe to that fund?
As far as I understand, all cargo and shipping owners have subscribed to that fund.
The timing of the disbursement of the fund is a problem. I am aware of the complex nature of the fund but could the Minister tell us whether, if somebody qualifies to claim, there is a timescale involved under the Convention in the disbursement of the fund? It may not relate to this question.
It is fortunate possibly that there is not a timescale involved in this. There would be a preliminary claim as is normal in all insurances and then there would be the factual one. There is no cut off point in relation to this. For the benefit of Senator McCormack, the matter of the International Oil Pollution Compensation Fund is set out clearly in section 19 of the Bill.
Question put and agreed to.
SECTION 21.
Government amendment No. 14:
In page 15, to delete lines 18 to 21, and substitute the following:
(2) Where the Fund in accordance with section 20 (5) indemnifies the owner of a ship or his guarantor, any such indemnity shall not exceed that part of such owner's, or his guarantor's, liability under this Act which is——".
Amendment agreed to.
Government amendment No. 15:
In page 15, to delete lines 30 to 41, and substitute the following subsection:
(3) For the purposes of this section "the aggregate amount of compensation" means the maximum amount of compensation payable by the Fund by reason of pollution damage occasioned by any one incident whether such compensation is payable by reason of any one or more of the following, that is to say—
(a) the provisions of this Act,
(b) the provisions of any law in any Convention Country, or
(c) the provisions of the Fund Convention.
The purpose of this amendment is to extend what constitutes the aggregate amount of compensation in section 21.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."
I would like to ask the Minister for clarification on the following wording in subsection (1):
After three years from the date on which the pollution damage occurred unless an action for compensation has already been commenced under this Act, the owner of a ship or his guarantor and the Fund has been notified pursuant to rules of court of the action by any party thereto, or after six years...
I would like further clarification of the necessity for three and six years in those cases.
What we are doing is ratifying both Conventions. We are very much bound by the terms of those Conventions. This section would be the converse of the question asked by Senator O'Callaghan. This sets out the time limits which must be met when bringing an action against the fund. It sets out the time limit which must be met by the owner of a ship or his guarantor when seeking indemnification from the fund pursuant to section 20 (5).
Question put and agreed to.
SECTION 23.
Question proposed: "That section 23 stand part of the Bill."
To clear something for the Senators, there is a time limit on claims but not on disbursement. There is a difference and I think this section spells it out.
Section 23 reads:
Where an incident which results in the Funds being liable for compensation or indemnity under section 20 occasions pollution damage in the State or in one or more other Convention Countries, proceedings under this Act may be taken, and the incidents may for all incidental purposes be treated as having occurred, in any place in the State.
How would you cover incidents that do not occur in State waters for example?
Let us take an example. If it happens in the Irish Sea it can be prosecuted in either or both jurisdictions.
If it happened in a harbour or pier in Ireland and the pollution travelled to England or vice versa, who would take the action and how would you go about it?
I can assure the House that if it happens outside the economic zone, some 200 miles from this coast or if it happens off the coast of France or the coast of England, we will not be found wanting as far as action is concerned. There will be no question of any ambiguity there. We would take the action first and find out afterwards. I am quite happy that we could be in the position that we could take the action. It can be done in either or both counties where there is common damage.
It reminds me of another reported incident recently where somebody was trying to dump sewage waste or talking about dumping sewage waste off the Porcupine Bank. Does this Bill only relate to pollution of the seas by oil as the Title of the Bill suggests?
Yes, it is the Oil Pollution of the Sea (Civil Liability and Compensation) Bill. That would cover cargo vessels only carrying oil as cargo. It would also cover a ship carrying oil as cargo. If it has a spillage from its bunker oil it is also included in this Bill. But if a cargo ship carrying grain or any other materials or products has a spillage from its bunker then that is covered on a separate list.
Question put and agreed to.
Sections 24 to 26, inclusive, agreed to.
SECTION 27.
Question proposed: "That section 27 stand part of the Bill."
Section 27 (2) reads:
Whenever the Court makes an order on foot of an application made persuant to section 26 for the enforcement of a determination, the order may provide for the payment of the reasonable costs of and incidental to the application and such costs shall be recoverable as if they were sums recoverable under the determination.
I would like further clarification of that. Does that mean after an offender would be taken to court that such costs should be recoverable?
This provides that the High Court makes an order relating to an application for the enforcement of a determination. The High Court order can allow for the payment of the costs of the application. These costs can be recovered as if they were recoverable under the determination. This is basically to cover the costs, which in cases such as these could be very substantial, in addition to any other damage.
Is that to cover the cost of the agency operating on behalf of the State. Take for example a county council pollution team. Are they the costs the Minister is referring to?
No. It is the cost of the application to the court.
The actual legal proceedings?
Yes.
Question put and agreed to.
SECTION 28.
Government amendment No. 16:
In page 18, to delete lines 11 and 12.
The thinking behind this amendment is to permit proceedings to be taken in several Convention countries which apply to the same incident. This is in line with the provisions of both the Liability Convention and the Fund Convention and brings us back to questions which were posed earlier. This will cover that eventually.
Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.
SECTION 30.
Government amendment No. 17:
In page 20, to delete lines 16 to 20, and substitute the following:
"(3) 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.".
In relation to relieving the owner of a ship I take it that relates solely to a court action, in other words, in the absence of the ability of the owner to pay his compensation the ship will be taken. It does not relate to relieving the master of a ship in the course of the crisis itself. Does that section have any relevance in that department? During the Kowloon Bridge saga there were suggestions subsequent to the disaster that it might have been more opportune for the State agencies involved, or the Navy, to take possession of the ship during the crisis. I take it that this section could not be used as a device in that crisis. I accept that it is intended to serve a different purpose, but could we use it as a device to take possession of a ship in such eventuality?
There is provision in legislation in the event of a cargo vessel polluting that that vessel can be detained. Furthermore, we will have the powers under the proposed Act to detain any other vessels owned by that individual or company. There is ample cover for eventualities.
Amendment agreed to.
Section 30, as amended, agreed to.
Sections 31 to 33, inclusive, agreed to.
SECTION 34.
Question proposed: "That section 34 stand part of the Bill."
Under the powers of detention in section 34 what is the situation if a ship should break up when detained? What is the position there vis-à-vis the 1894 Act and the 1906 (Amendment) Act if a ship under detention should break up or cause pollution?
This section provides for certain powers and the inspector, harbour master or the official appointed by the Minister for the Marine would obtain an order from a district justice allowing the ship to be detained for 48 hours. Where proceedings are pending against the master of a ship the district justice may require the inspector or the harbour master to detain the ship until the proceedings are completed. There need not necessarily be any pollution damage. If the vessel is suspected and if all the conditions are not complied with, it can be detained for this time. An example would be the insurance certificate.
In the case of pollution being caused while the ship is detained then the ship has polluted and we would lodge our claim to the fund. I do not know if that answers the Senator's question. Is he suggesting that as a result of detention the pollution would take place? Every ship is detained. It is taken into port and detained there. It is very difficult to comprehend how this could happen deliberately or as a result of its detention by the harbour master who would obtain an order from the District Court. It is very difficult to understand how that could happen but if it did happen there is cover under the legislation to claim against the fund. Of course, there is also provision in the legislation that, if damage is done deliberately and in other ways, we would not receive compensation.
In relation to the status of the inspector, I am aware that in some cases in the appointment of harbour masters certain certificates are required in relation to their ability and experience to handle certain types of vessels referred to normally in the oil business as VLCCs. I understand that there are certain sizes of ships of which certain inspectors would not be deemed sufficiently well qualified to take possession. Is the Minister happy that there is adequate provision in this section whereby such an inspector would have the status required to take possession of the ship in the circumstances outlined in the Bill. I understand a foreign going master's ticket is the normal requirement to take possession of a super tanker. I am aware that in some of the bigger ports on the Continent, to qualify for a harbour master post one has to have this adequacy of certification to handle VLCCs. Is the Minister happy that the inspector would always have such a qualification?
Under earlier sections of the Bill when we referred to the inspector, the inspector would mean a person appointed to be an inspector by warrant of the Minister, or a person appointed to be a surveyor of ships by warrant of the Minister under sections 7 to 24 of the Merchant Shipping Act, 1894, or a sea fisheries protection officer.
I fully appreciate the point made by Senator O'Callaghan that there may be inspectors who would not be qualified to carry out an inspection of one of these super tankers. All harbour masters at the major harbour ports are all qualified and many of them have experience on board. May I go from the sublime to the ridiculous and say that I do not anticipate that one of the super tankers which Senator O'Callaghan refers to would be going into Dingle?
I am quite satisfied that the legislation adequately covers this. From discussions I have had with my officials I am quite satisfied that there is ample cover.
Question put and agreed to.
Sections 35 to 39, inclusive, agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."
Section 40 reads:
Where it appears to the court imposing a fine for an offence under this Act that a person has incurred, or will incur, expense in removing any pollution or making good any damage attributable to the offence, the court may order that the whole or part of the fine be paid to that person for, or towards, defraying that expense.
I would like further clarification on that from the point of view of where the court imposes a fine for an offence under this Act. Would a local authority, for example, who would incur expenses in having pollution cleared up on their coastline be likely to be compensated in that regard from that source?
The section provides that the court may order the payment of a fine or part of same to a person who will incur expenses in making good the pollution damage. That, of course, will cover any person or local authority. It would be a catch-all provision.
Or any person?
Or any person. Under the wording in that section, line 49 of section 40, says that the court may do this. It covers any person or local authority.
Does that become a matter for the court to order or would there have to be a claim from any person or local authority or voluntary body or whatever to seek compensation for the expenses incurred in the clearing of pollution?
That section would be a matter for the courts. There is discretion there; it might cover it. It is a question for the courts.
Question put and agreed to.
Section 41 agreed to.
SECTION 42.
Question proposed: "That section 42 stand part of the Bill."
This section says the Act shall not apply to any warship or any ship for the time being used by the Government for purposes other than for commercial purposes. What would happen if one of those vessels caused pollution?
Subsection (1) is self-explanatory but subsection 2 provides that the Minister can grant exemption from the Act to a ship or class of ships where he is satisfied the exemptions would not lead to reduced liability for pollution or in reduced means for meeting some of the liability. In a situation like this, the Minister where he is satisfied that the exemption would not result in reduced liability for pollution or indeed means for meeting such liability could exempt any ship registered in the State or any class of ship so registered from all or any of the provisions of the Act. This section, like many other sections is very much dependent on the fund conventions, the conventions of 1969 and 1971 and the protocols of 1976. We are very much bound by those conventions. The wording here is almost imposed upon us. Since we are accepting the conventions, if there is pollution as a result of a warship or by any ship for the time being used by the Government of the State, then there would be no cover there, there would be exemption from the Act. This has been thought out not just by ourselves but prior to the fund conventions those involved in the drafting of it said that it would be in very exceptional circumstances and there would need to be extenuating circumstances. It goes so far to say a "warship", I hope that in an eventuality such as that we will be around to claim.
Just a clarification on section 42 (1) and (2), I note that the Bill relates to warships, the property of the State. I wonder what is the situation in relation to warships that visit the State on courtesy visits. We are aware of the ongoing confrontation between various groups, for example, Greenpeace groups in other countries where they have effectively confronted visiting warships, have boarded these ships and so on and have caused considerable embarrassment to various Governments, fortunately not here. I wonder whether there is a provision in the Act to cover this? Obviously, the visiting ship would not be deemed to be a commercial ship; it is a warship but it is not a warship belonging to the State. If there was pollution — which would be most unusual in relation to a warship on a courtesy call to this State — would it fall into any particular category embraced in this Act?
I would expect that any warship would not be an oil tanker so, obviously, even if it was here on a courtesy call and caused pollution the pollution would be from the bunkers or from its own fuel oil which would be covered under separate legislation.
On that matter, the Minister mentioned a few times during the course of his replies today, and perhaps before he finishes he will give this House an idea of when that separate legislation may be introduced. While all the Senators are satisfied with this Bill, and we welcome it in itself, we might get the false impression that the Bill caters for all the likely pollution. We know from the Minister's clarifications and the proper manner in which he answered all the questions that it does not cater for all the likely causes of pollution. I would like to ask the Minister for clarification on the effect of this Bill. It covers oil tankers but it has no effect on cargo ships. It would not even cover the Kowloon Bridge case referred to earlier.
I thought this Bill did not go far enough but having accepted the Minister's response to that I would have to ask when it is proposed to have legislation that will cover the other types of pollution, apart from pollution from oil tankers — which would be a major pollutant if it happened — pollution from cargo ships and other pollution. When is it expected that that legislation will be introduced because people might get the false impression that now that the Houses of the Oireachtas have dealt with the Oil Pollution of the Sea Bill we are covered to deal with all oil pollution. It is quite clear we would not be covered in respect of oil pollution from the engine oil of a ship. I anticipate the other legislation with interest and hope it will come very soon.
The position is that we are covered for pollution. That was proven in the Kowloon Bridge situation. The Senator asks what would be the the situation if we had another Kowloon Bridge incident in the morning. I do not want to sound arlarmist and I do not think the Senator wants to sound alarm bells, but if it happens we will know and we will be better able to deal with it in practice. The legislation is there and we have a claim for £1.743 million with the fund convention. I may have given a wrong impression but we are strengthening the legislation for the Kowloon Bridge situation. Possibly the fact that this Bill is almost through this House — and I hope will go through the Dáil as quickly as it has gone through here — and that the other legislation will be introduced as quickly as possible may give the wrong impression. I think Senators will appreciate this. I do not think that any Government — I am not being political; I am being factual — over the past decades have had as much legislation and as many Bills ready for the House. My difficulty is finding time to get into both Houses with these Bills. They are almost ready and as soon as we can get them through the Houses we will have them enacted.
I welcome the Minister's comments in this regard because it is important that we would, to some degree, explode this myth that nothing has been done in relation to the Kowloon Bridge. It should be remembered that in actual fact it was this day 12 months ago that the Kowloon Bridge went on the rocks in west Cork and did all the damage. It should also be said that less than six months after that devastation took place the beaches of west Cork were usable. I live in that area and am aware of the fact. That should have been said at the outset. Unfortunately, I was not here for the initial debate on this Bill to record my appreciation of the Department of Communications officials particularly. I had occasion to be very close to the operations on that occasion, given it was based in my own town. It was most gratifying to see that we had officials of the competence and calibre of the people who were in evidence in Bantry and west Cork in November and December last year.
This was a matter that was commented on by people who came from all over the world to observe the crisis. The competence, the expedition, and the controlling influence in evidence from the all-party steering group who were on the site within six or eight hours of the crisis occurring impressed everybody. It was most gratifying for me, as a public representative, to see that we had within our Departments people with sufficient expertise and competence to handle a crisis such as that. We should also be mindful of the fact that less than 12 months after the crisis occurred we have our very sizeable and substantial compensation claim submitted to this international convention.
I should also say, as a member of Cork County Council, that substantial compensation has already been paid to the county council in Cork to offset the substantial costs they incurred having an anti-pollution group in place for virtually six or seven months of last year. It is important that we should record the Minister's undertaking here that in actual fact we already have almost sufficient legislation on the Statute Book. The way this affair developed over the past year is proof positive that this legislation is in place. We now have our compensation claims submitted. I would hope that, on the basis of what the Minister said here this afternoon, we could expect a fairly expeditious conclusion to this claim.
There is one other point I would like to touch on for the Minister's consideration. It is in relation to private claims. I accept that this is not within the brief of the Minister. A considerable amount of foot-dragging is quite often done by the insurance group covering the Kowloon Bridge, as is referred to in the Minister's earlier remarks. There is an amount of foot dragging going on from time to time in relation to the settlement of smaller claims on the ground. I am aware, for example, that a sizeable pollution took place in Bantry Bay in 1976 from the Universe Leader. Some of those claims have not yet been paid after 11 years because of a line-by-line examination of every aspect of the submissions made by the solicitors on behalf of the claimants. I know that it is not a matter of responsibility for the Minister but I should say that people are concerned lest the impression be given that all is well. While the Government can proceed and resolve their compensation claims — and it is evident here today that the Minister is doing that — in relation to the claims against the Kowloon Bridge, the people on the ground, local fishermen and so on have not found their problems so easily redressed. I welcome the Minister's comments here this afternoon and I support his point that there is a substantial amount of legislation quite suitable to process these claims in place at present. It is evident here this afternoon that we are pursuing those claims through the proper channels.
I would like to join with Senator Callaghan in complimenting the Department of the Environment officials and Minister Mitchell on the quick and thorough action that was taken in the Kowloon Bridge case. I did not wish to imply anything to the contrary. I understand from the Minister's reply that the amount of Bills now going through the Seanad seems to show an increase on previous occasions. I am only speaking from my short experience in the Seanad. In fact, this Bill itself was introduced in the Seanad.
Question put and agreed to.
Sections 43 and 44 agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
Níl le rá agamsa ach gur mhaith liom mo bheannacht a thabhairt don Bhille seo agus mo bhuíochas a ghabháil leis An Aire as ucht an Bille a thabhairt chomh fada seo. Ba mhaith liom freisin ag an bpointe seo tréaslú don Rialtas as ucht Roinn na Mara a bhunú. B'aisteach nár bunaíodh a leithéid seo de Roinn i bhfad ó shin. Ach ar chaoi ar bith, is comhartha é seo go bhfuilimid ag dúiseacht suas faoi dheireadh thiar thall agus go dtuigeann an Rialtas an tábhacht a bhaineann le fairrgí na tíre seo. Tuigeann an tAire go maith a bhfuil ráite agam ach ar eagla nach dtuigeann roinnt des na Seanadóirí mo chuid cainte, déarfaidh mé arís é, agus b'fhéidir níos mó, i dteanga a thuigeann chuile dhuine.
I would like to congratulate again the Minister and all those concerned in taking the Bill to this stage. I would also like to take this opportunity to congratulate the Government on forming a Department of the Marine. Strange to say that we have not had such a Department up to now. I take it as a sign of the Government's realisation of just how important our seas are and that they are very much a part of our environment and indeed of our whole economy. Only a year or two ago we had the amazing situation that the only research vessel we had was about to be taken out of the water for good because it was said at the time that we could not afford the cost of keeping it on the ocean. How we are to value our environment or to know what it has to offer if we do not carry out research is beyond me.
I would like to emphasise once again what I said on the last occasion when this Bill was before the House, that is that we must do our utmost to prevent these incidences of oil pollution by having proper inspections and where these incidences do occur we must be prepared to act with all possible speed and with proper equipment. It will save the country a tremendous amount of money and in the long run protect our environment.
Ba mhaith liom mo bhuíochas a ghabháil leis na Seanadóirí go léir a thaispeáin inniu an oiread sin suime atá acu san Bhille seo agus san fhairrge agus an timpeallacht. B'fhéidir nach bhfaighimid an oiread sin airgid agus ba ghnách agus a bheas de dhíth orainn ach bí cinnte, am ar bith a tharlós rud mar seo, go gcuirfimid chuige agus go bhfaighimid gach cineál eolais gur féidir a fháil ionas go mbeidh an t-iarratas a bheas a chur isteach chuig na funds nó chuig na comhlachtaí árachais ar mhaithe na tíre seo agus ar mhaithe na ndaoine a chaillfidh.
I would like to thank all Senators who participated in the Second Stage and, indeed, in the Committee Stage of this Oil Pollution of the Sea (Civil Liability and Compensation) Bill, 1987, for their interest in this important Bill. I hope this Bill will receive a speedy passage through the Dáil and that we can have it enacted at the earliest possible date.
Lest there be any misconception I would like to point out that the claim of £1.743 million which we have lodged is not to the fund; it is to the insurers in this case as far as the Kowloon Bridge is concerned. Again, I thank Senators most sincerely for their contributions here today. I hope this Bill will be enacted quickly and that before too long, either myself or the Minister will be back in the House with further legislation which will help to strengthen existing legislation.
Question put and agreed to.