Oil Pollution of the Sea (Civil Liability and Compensation) (Amendment) Bill 2003: Committee and Remaining Stages.

Section 1 agreed to.
SECTION 2.

Amendments Nos. 1 to 4, inclusive, 6 to 10, inclusive, 12 and 13 form a composite proposal and may be discussed together. Is that agreed? Agreed.

Government amendment No. 1:
In page 3, lines 30 and 31, to delete subsection (1) and substitute the following:
"(1)Sections 3 and 4 (1) apply in respect of incidents occurring on or after the commencement of those sections.”.

Amendment No. 1 to section 2 is a consequential amendment arising out of additional provisions in the Bill. Amendment No. 2 amends section 3 of the 1998 Act through the insertion of definitions relating to the supplementary fund.

Amendment No. 3 to section 4 amends section 19 of the 1988 Act. Section 19 provides for returns to be made in respect of oil received and under subsection (2) to pay the amounts determined by the International Oil Pollution Compensation Fund, 1992. Subsection (4) provides for non-compliance with subsections (1) and (2) to be an offence. The amendment extends this provision to include non-compliance with requirements relating to payments to the supplementary fund as an offence.

Amendment No. 4 inserts a new section 19A in the 1988 Act. Subsection (1) recognises supplementary funds as a body corporate. Section 19(3)(a) makes similar provision in respect of the 1992 fund. Section 2 requires payment by oil receivers of the amounts determined by the supplementary fund. Section 19(2) makes similar provisions in respect of the 1992 fund. Subsection (3) enables the director of the supplementary fund to recover sums due under section (2). Section 19(3) makes similar provisions in respect in respect of the 1992 fund.

Amendment No. 5 corrects—

Amendment No. 5 is not being taken with this group of amendments; it will be taken separately.

Under amendment No. 6, section (4), as published, amends subsections (1) and (2) of the 1988 Act to reflect an increase of approximately 50% in limits of aggregate compensation payable by the 1992 fund. This amendment provides for further amendment of section 21 to include the arrangements related to the supplementary fund. The new subsection (3) provides the supplementary fund becomes liable for pollution damage when the total of all claims against the 1992 fund exceeds the limit set out in subsection (1). The new subsection (4) sets the limit for the aggregate amount of compensation payable by the supplementary fund of 750 million SDR. The new subsection (5) provides forpro rata payment of claims where the total of all established claims against the supplementary fund exceeds the limit set out in the new subsection (4). The existing subsection (4) provides for similar arrangements in respect of the 1992 fund. This will no longer apply once the protocol comes into effect. Article 24 of the protocol provides for the limit specified in the new subsection (4) to be amended through a tacit amendment procedure.

The new subsection (6) provides for limits to be amended by order of the Minister should this procedure be adopted at international level. The existing subsection (5) provides for subrogation by the 1992 fund. This is now reclassed slightly and renumbered as the new subsection (7). The new subsection (8) makes similar provisions in respect of the supplementary fund. The existing subsection (3) defines certain references in relation to the 1992 fund. This is replaced by the new subsection (9) extending these definitions to the supplementary fund.

The new section 5 amends section 22 of the 1998 which sets out limitations of actions against the 1992 fund. The amendment provides for these to apply in relation to the supplementary fund. Under amendment No. 8, a new section 6 amends section 23 of the 1988 Act, which provides for pollution damage occurring in the State and at least one other country, which is party to the 1992 fund. The amendment provides for these arrangements to apply in relation to the supplementary fund.

Under amendment No. 9, a new section 7 amends section 24 of the 1988 Act which enabled the State to take action for compensation against a number of parties, including the 1992 fund. The amendment provides for these arrangements to apply also in relation to the supplementary fund.

Amendment No. 10 includes a new section 8 which inserts a new Part IVA in the 1998 Act. Part IV, sections 25 to 29, deals with recognition and enforcement of judgments in accordance with article 8 of the fund convention. The text of section 25 extends these provisions of the supplementary fund without the need for amendment.

Article 8, paragraph 2 of the protocol provides for the application of other rules provided their effect is to ensure that judgments are recognised and enforced at least to the same extent. This provision was included at the request of the European Commission in the light of regulation 44/2001 EC on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which was adopted by the Council of the European Union on 22 December 2000 and came into force on 1 March 2002. The regulation is binding on all EU member states with the exception of Denmark.

Regulation 44/2201 was adopted following the conclusions of the 1999 meeting of the European Council in Tampere and the Council programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters. Part IVA provides for SI 52/2002 to apply in respect of EU member states other than Denmark.

Amendments Nos. 12 and 13 amend the Long Title. The Long Title, as published, refers to increases in compensation limits. The amendment provides for reference to the supplementary fund protocol.

What the Minister of State told us and his reference to different Acts is quite technical. Will he clarify why Denmark is precluded from the supplementary fund?

That is due to a special arrangement Denmark has had since it joined the EU. It has a special concession.

What is the logic of it?

We can find that out for the Senator. It was an arrangement that was agreed when Denmark joined the EU and it has managed to exclude itself from the fund ever since. I will find the reason for that for the Senator.

Given that Denmark is a coastal state and as we are talking about oil pollution, it is rather surprising that a member of the EU is precluded from the fund.

We will find out the details for the Senator.

Perhaps the former Minister of State present might know about them.

Is the Minister of State aware of the number of outstanding Irish claims that have not been paid from this fund or the supplementary fund? If he does not have the information to hand he might communicate it to me later. I understand that payment in respect of at least one claim has been outstanding for a long time. While it is all very well to introduce detailed and technical legislation, there is a lack of expediency in the payment of claims. I refer in particular to theKowloon Bridge incident where the Government expended a considerable amount of money removing oil from that ship when it ran aground off the south west coast. I am not satisfied that the compensation claim in respect of that incident was paid from the funds. Is there a reason for that and is there any way claims such as this can be expedited? A fund and a supplementary fund are in place, but it is impossible to secure payment of outstanding claims.

I do not know whether we are creating history in the Seanad today in introducing this Bill given that the amendments to it are longer than the Bill.

That is right.

I do not recall ever seeing that before. Reference is made in an amendment to the director of the supplementary fund, I do not recall that office holder being referred to in the 1988 or 1998 legislation. Who is the director of the supplementary fund and who appoints the director?

In relation to theKowloon Bridge incident, that case is progressing through the courts. That incident occurred prior to the supplementary fund being set up and, therefore, those concerned cannot seek payment through that fund.

In response to Senator Kenneally's question, the current director is a Swede and he is appointed by the assembly.

Amendment agreed to.
Section 2, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 2:
In page 4, before section 3, to insert the following new section:
3.–Section 3 (as amended by section 3 of the Act of 1998) of the Act of 1988 is amended–
(a) by inserting in subsection (1) the following definition after the definition of ‘aggregate amount of compensation';
‘"Assembly of the Supplementary Fund" means the Assembly specified in Article 16 of the Supplementary Fund Protocol;',
and
(b) by inserting in subsection (1) the following definitions after the definition of ‘ship':
‘ "Supplementary Fund" means the International Oil Pollution Compensation Supplementary Fund 2003, established by the Supplementary Fund Protocol;
"Supplementary Fund Protocol" means the Protocol of 2003 to the International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage, done at London on 16 May 2003;'.".
Amendment agreed to.
Government amendment No. 3:
In page 4, before section 4, to insert the following new section:
4.–Section 19 (as amended by section 9 of the Act of 1998) of the Act of 1988 is amended by substituting the following for subsection (4):
‘(4) A person who–
(a) fails to submit to the Minister the returns specified in subsection (1) within the prescribed time,
(b) submits a false return to the Minister,
(c) fails to make the payment specified in subsection (2), or
(d) fails to make the payment specified in section 19A(2),
is guilty of an offence.'.".
Amendment agreed to.
Government amendment No. 4:
In page 4, before section 4, to insert the following new section:
5.–The Act of 1988 is amended by inserting the following new section after section 19:
19A. (1) The Supplementary Fund shall be a body corporate with perpetual succession and power to sue and be sued in its corporate name and to acquire, hold and dispose of land or an interest in land and to acquire, hold and dispose of other property.
(2) It shall be the duty of such persons as may be prescribed to pay each year into the Supplementary Fund in such manner and on or before such date as may be prescribed such sums as may be determined by the Assembly of the Supplementary Fund and certified by the Director of the Supplementary Fund, any such sum to be determined in accordance with the returns submitted to the Minister under section 19(1) or, where the person concerned fails or neglects to submit the appropriate return on or before the prescribed date, to pay the Supplementary Fund such sum as may be calculated on an estimate of that person's returns for that year.
(3) If any person fails to pay to the Supplementary Fund any sum due and payable under subsection (2) the Director of the Supplementary Fund may recover from the person by whom it was payable in any court of competent jurisdiction, as a simple contract debt, such sum together with interest thereon from the date on which such sum becomes payable, such interest to be at such rate as may, from time to time, be determined in accordance with the Internal Regulations of the Supplementary Fund.'.".
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
Government amendment No. 5:
In page 4, line 9, to delete "1998" and substitute "1988".

This amendment corrects a printing error in section 4, as published.

Amendment agreed to.
Government amendment No. 6:
In page 4, between lines 19 and 20, to insert the following new subsection:
"(2) Section 21 of the Act of 1988 is further amended by substituting the following for subsections (3) to (5):
‘(3) Where the Fund incurs a liability under this Act and the amount specified in subsection (1) is exceeded, the Supplementary Fund shall, subject to subsection (4), be liable for any excess over that amount.
(4) Where the Supplementary Fund incurs a liability under this Act in respect of pollution damage in the State, the aggregate amount of compensation payable in respect of any one incident shall not exceed 750,000,000 units of account.
(5) Where the amount of established claims against the Supplementary Fund exceeds the aggregate amount of compensation payable under subsection (4), the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant by virtue of the Supplementary Fund Protocol shall be the same for all claimants.
(6) Where pursuant to Article 24 of the Supplementary Fund Protocol the amount specified in subsection (4) is duly amended by increasing the amount, then the Minister shall, if satisfied that the amount has been duly increased, make an order giving the new increased amount the force of law. The Minister shall specify in the order a date, not earlier than its coming into force internationally in accordance with that Protocol, when the increased aggregate amount of compensation in relation to the Supplementary Fund comes into force in the State.
(7) Subject to subsection (1) the Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund under this Act, acquire by subrogation any rights that the person so compensated may enjoy under this Act against the owner of the ship or the guarantor.
(8) Subject to subsection (4) the Supplementary Fund shall, in respect of any amount of compensation for pollution damage paid by the Supplementary Fund under this Act, acquire by subrogation any rights that the person so compensated may enjoy under this Act against the owner of the ship or the guarantor.
(9) In this section–
‘aggregate amount of compensation' means, in relation to any one incident, the maximum amount of compensation payable by the Fund or the Supplementary Fund in respect of pollution damage arising out of the incident, by virtue of the application of any one or more of the following:
(a) this Act,
(b) the law of a Convention Country,
(c) the Fund Convention,
(d) the Supplementary Fund;
‘combined amount of compensation' means, in relation to any one incident, the amount of compensation paid by a person other than the Fund or the Supplementary Fund in respect of pollution damage arising out of the incident, and the aggregate amount of compensation.'.".
Amendment agreed to.
Section 4, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 7:
In page 4, before section 5, to insert the following new section:
5.–Section 22 (as amended by section 12 of the Act of 1998) of the Act of 1988 is amended by inserting ‘or the Supplementary Fund' after ‘Fund' in both places where it occurs.".
Amendment agreed to.
Government amendment No. 8:
In page 4, before section 5, to insert the following new section:
6.–Section 23 (as amended by section 13 of the Act of 1998) is amended by inserting ‘or the Supplementary Fund' after ‘Fund'.".
Amendment agreed to.
Government amendment No. 9:
In page 4, before section 5, to insert the following new section:
7.–Section 24 of the Act of 1988 is amended in subsection (1) by inserting ‘or the Supplementary Fund' after ‘Fund'.".
Amendment agreed to.
Government amendment No. 10:
In page 4, before section 5, to insert the following new section:
8.–The Act of 1988 is amended by inserting the following new Part after Part IV:
PART IVA
RECOGNITION AND ENFORCEMENT OF JUDGEMENT OF MEMBER STATE OF EUROPEAN COMMUNITIES IN RELATION TO SUPPLEMENTARY FUND
29A. (1) This Part shall apply only to a judgment of a Member State in relation to the Supplementary Fund.
(2) The Council Regulation and the European Communities (Civil and Commercial Judgements) Regulations 2002 (S.I. No. 52 of 2002) apply in respect of a judgment of a Member State other than a court or tribunal of a territory of a Member State to which the Council Regulation does not apply.
(3) In this Part–
"Council Regulation" means Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters:
"Member State" means a Member State of the European Communities, other than the State and Denmark.'.".
Amendment agreed to.
SECTION 5.
Government amendment No. 11:
In page 4, line 26, to delete subsection (3) and substitute the following:
(3)(a) Sections 2, 3 and 4 (1) and, in so far as it relates to those sections, section 1, come into operation on 1 November 2003
(b) Subject to paragraph (a) this Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.”.

Section 5 of the Bill as published provides for increased limits for the 1992 fund and they come into operation on 1 November 2003. The amendment provides for inclusion of commencement provisions relating to the supplementary fund.

On a point of clarification I know that there is urgency with regard to getting this through before 1 November. Has this date been agreed internationally?

Amendment agreed to.
Section 5, as amended, agreed to.
TITLE.
Government amendment No. 12:
In page 3, line 17, after "1992", to insert "TO GIVE EFFECT TO THE PROTOCOL OF 2003 TO THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE 1992, DONE AT LONDON ON 16 MAY 2003,".
Amendment agreed to.
Government amendment No. 13:
In page 3, lines 17 and 18, to delete "THAT PURPOSE" and substitute "THOSE PURPOSES".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

There is nothing contentious in this Bill, the provisions of which are welcome. It is very appropriate that persons affected by oil pollution damage be properly compensated. That is what this matter is about. I hope the Acting Chairman and the Minister of State will allow me the liberty, as today is the last sitting day of the Seanad this week and as the Minister of State at the Department of Communications, Marine and Natural Resources, Deputy Browne, is present, to note that commemorative services are being held tomorrow at Dún Laoghaoire and Holyhead to remember those who died on the mail boat, theRMS Leinster. Tomorrow is the 85th anniversary of the sinking of that ship on 10 October 1918 with 771 passengers and crew on board.

The ship was commanded by Captain William Birch, a Dubliner who had settled in Holyhead. The crew was drawn mainly from the towns of Dún Laoghaire and Holyhead. The majority of passengers happened to be military personnel who were either on leave or returning from leave during the First World War. The ship was struck by a torpedo fired by a German submarine, the UB-123, and 501 people on the RMS Leinster died as a result, representing the highest ever loss of life on the Irish Sea and the highest ever casualty rate on an Irish-owned ship. The German submarine was subsequently also lost along with its crew, the average age of whose members was between 19 and 20. I felt it important because of the date to record that in the House. This year is the first time ever that the towns of Dún Laoghaire and Holyhead are remembering all those who died on the RMS Leinster and the UB-123. It would be appropriate for this House to note the commemorative services and, for the first time since its establishment, take formal note of the grief suffered by families from Ireland, Wales, Scotland, England, the United States of America, Canada, New Zealand, Australia and Germany whose members died in the disaster on that day.

I spoke on Second Stage on this legislation and noted what an important piece of legislation it is. I also made the point that pollution preparedness is extremely important. As a commitment was given in May 2000 to purchase a towing vessel at the time, and the Minister for Communications, Marine and Natural Resources, Deputy Ahern, has since indicated his Department has entered discussions with the British authorities to see if a joint arrangement could be made, it would be important to have that resource available. As I said on Second Stage, the research vessel does not have towing capacity, although it can secure a particular vessel. I would like to think that a towing vessel would remain a priority. Given the unfortunate sequences of events that have occurred in other countries, it is the luck of God that we have avoided similar tragedies. I hope we always will avoid such tragedies. We are surrounded by sea and perhaps subject to risk in that regard.

Senator Kenneally indicated that the amendments were longer than the original Bill. What gave rise to that? When was the original Bill drafted? Was there an appropriate timeframe between the publication of the Bill and Committee Stage? All these amendments have suddenly appeared. The Minister of State refers to section 4, section 6 and so on. It sounds like gobbledegook. It would be far better if the amendments were minor in nature rather than being longer than the Bill's original provisions.

I thank the Minister for Communications, Marine and Natural Resources, Deputy Ahern, who came before this House on Tuesday when we discussed Second Stage of the Bill. As I said at the time it was a very narrowly focused piece of legislation. I am glad that the Minister of State, Deputy Browne, has been able to join us here this morning and that we were able to quickly go through Committee and Remaining Stages. As Senator Finucane said earlier, there was a time constraint on us regarding 1 November. I thank the Minister of State for attending and I am glad we did not take up too much of his very valuable time.

I thank the Opposition spokespersons and the Fianna Fáil spokesperson for their co-operation in ensuring that the Bill goes through the House very quickly.

On the issue raised by Senator Finucane, the Bill was drafted in January 2003 and the protocol was adopted in May 2003. The protocol was obviously related to the Bill, which is why the changes then had to be made. We appreciate the Senator's co-operation in making the changes.

Regarding the issue raised by Senator Tuffy, I am aware of the major commemorative events planned in Dún Laoghaire and Holyhead for the weekend. At one stage I believed I was going to represent the Government at the commemoration services but whether wiser counsel prevailed or a senior Minister was acquired, I was dropped from the invitation list. I trust the commemorative services will go well. The occasion will be an historic one for Dún Laoghaire and Holyhead. I know that Senator Tuffy and Deputy Andrews have been involved in organising the function and I wish it every success.

Question put and agreed to.

When is it proposed to sit again?

At 10.30 a.m. next Wednesday, 15 October 2003.