I fully understand that. On page 6 of the Bill there is a definition in relation to "owner". It is most important that it is beyond any doubt in the context of the Bill as to what the State means by the owner of a tanker. I should like the Minister to recall the Amoco Cadiz disaster. In that case, when the matter of damages, etc., was being considered it was discovered that there was a parent company to which the owning company belonged. There was also an operating company and finally the ship had been chartered out to a different company. In terms of the operators of the ship or those responsible for any disaster, you could have had the pick of four companies. I am not quite sure that our definition of owner would cover all four possibilities, for instance, in an Amoco Cadiz type disaster. Could the Minister please assure me — and the House — that he is satisfied that the definition of owner is sufficiently comprehensive to ensure that nobody would slide out from under their responsibilities because of the wording in the Bill?
I propose an amendment to the second line of section 8 that before the word "damage" the word "such" should be inserted. I do this quite deliberately because the section deals with the exemption from liability for pollution damage and there may have been no intention to do this particular type of damage by the operator of a ship, they may intend to do a different type of damage and so slide out from the responsibility we are trying to nail them with. The "such" damage referred to oil pollution damage specifically and perhaps the Minister will consider accepting that amendment. It is rather simple and of a technical nature but it is very important.
Section 10 concerns the limitation on liability for pollution damage. As the Minister is aware, the right to limit liability is given to ship-owners because of the enormous risks to which a ship-owner is exposed in the modern world. The ship-owners insure their liability in mutual protection and indemnity associations known to us as the P & I Clubs. The London P & I Clubs who, between them, insure more than 90 per cent of the world's tonnage each bear the first $750,000 of any claim against any of their members. Claims are then pooled between the clubs, up to $12 million, after which the excess of any one claim falls on reinsurance underwriters with whom the London group of P & I Clubs have placed their insurance. The London group of the P & I Clubs are now insured for 1,000 million US dollars in excess of the 12 million dollars for any one claim.
So great are the risks to which ship-owners are now exposed that the professional managers of the P & I Clubs are discussing whether they can continue to offer unlimited cover which has always been a feature of P & I. P & I Club managers seriously believe there is a danger that some day they will be faced with a claim which will go through the present limits of cover which is over 1,000 million dollars. The limitation of a shipowner's liability has to be considered against this background and the right to limit liability should be virtually unbreakable to provide the element of certainty which is necessary when attempting to negotiate adequate reinsurance cover.
The test which is applied in section 10 for an entitlement to limit liability is the absence of actual fault or privity. As the legal profession will confirm to the Minister, these words have been a fruitful cause of litigation for many years. As I said, if limitations of liability is accepted in principle — which it is — the right to limit should be more or less unbreakable to ensure that certain risks are in fact insurable. For that reason, the more modern tests applied in recent conventions is that the entitlement to limit liability should be contingent on the ship-owner, that he or she did not commit an act or omission with the intent of causing the damage which gives rise to the liability nor that he acted wrecklessly or with the knowledge that such damage probably would result. Perhaps a lot of these issues will be cleared up when the limitation convention of 1976 comes before us for ratification. I await the Minister's response to the particular difficulties in that section and the interpretation of fault or privity and its relationship to the Bill.
I also have grave misgivings about section 13 which appears to usurp the role of the Admiralty Marshal. The IMO could again find us in breach of the CLC which, to my knowledge, does not include such a detention power.
One of the main purposes of the Bill is to ensure the compulsory insurance of any oil tanker in our waters. If in such a case where the tanker is insured an oil pollution accident occurs, can the Minister say in what circumstances an inspector or harbour-master would be entitled to detain the ship? Effectively indefinitely, as the procedure for court determination of the entitlement to limit liability could last for months under this section. What if the ship owner is not entitled to limited liability as per section 13 (2)? According to this section, the ship could never be released but left to rot in port. I also question the word "and" on page 11, section 13 (2), line 30. Would it not be better to substitute the word "or" for the word "and" so that the section would read: "Where the court has determined that a person, who has incurred a liability for pollution damage under section 7, is entitled to limit his liability or such person has paid into court a sum of not less than the amount determined by the court to be the limit of his liability ...? In other words, if the polluter concerned had discharged his obligations in terms of paying for any damages done, surely he would be entitled to have the ship released even if he could not prove he was entitled to limited liability? I would rather "or" than "and" in that case; we are protected either way.
A ship, if insured, has done all required of it under the Civil Liability Convention. This detention provision could be considered penal. There is, incidentally, no provision in UK law, the 1971 Act specifically, for such detention and it shows a misunderstanding of what the Civil Liability Convention is all about. I would draw the Minister's attention to this entire section which I feel is superfluous and unnecessary. I have no difficulties at all in relation to the detention of ships under section 13 in criminal cases, I support that fully, but the detention of ships in civil cases, I do not accept as necessary and I am of the view that it is penal. I await with great interest the Minister's detailed explanation as to why this section is necessary in the Bill.
I mentioned that I felt this section usurps the role of the Admiralty Marshal. In fact, the Admiralty Marshal would need a court order for a ship's arrest in the first place. He would also need a sworn affidavit in court effectively a prima facie case, before he could detain a ship and finally a ship owner could lodge a caveat against arrest by undertaking to pay a bond in the case of the action by the Admiralty Marshal. We intend to proceed in a far more penal manner, which I do not find acceptable in a civil action.
Section 16 deals with the insurance of the ships in question. As I have said, the power of detention in section 16 is most important where there is no insurance, in other words, in a criminal case, and I support it entirely. It is only in civil cases as envisaged under section 13 that I oppose the power of detention as outlined. However, further complications arise in this area under section 34. I will deal with that section now, if I may, because it is directly related to the two sections detailing the powers of detention.
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 will be no contravention of the Act, because the Act provides that, if the ship is in fact insured, we are dealing with a civil action and there is no contravention. Either the ships owner's liability will be limited, as per the insurance terms, or in the case where the claim goes over and above the limit of liability, the fund convention comes into action and takes the surplus claim on board. In section 34, we are asking an inspector who wants to further detain a ship to go to the District Court and prove there is a contravention of the Act when, in fact, there can be none if the ship is insured. On the other hand, the harbour-masters do not have to apply to the District Court under section 13 for the continued detention of a ship. I refer the Minister to the wording of the first three lines of section 34:
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...
The harbour-master has no powers to go to a court under section 13 by the wording in the first three lines of section 34. The drafting of section 34 leaves a great deal to be desired. Perhaps it can be explained, but I doubt it because I have checked in detail with informed sources the point I am now making.
The harbour-master does not have to go to the District Court under section 13 for continued detention of a ship. Again, in theory, the ship could be left in the port to rot if it had been detained by a harbour-master under section 13. To my knowledge, there is no way of getting the ship out of detention as per section 34. If an inspector detains a ship under section 13, there is a way out, providing he can convince the court that it is in contravention of the Act which cannot be so under section 13 in a civil case. Providing he can do that Houdini trick, in theory the ship can be released but if a harbour-master detains a ship under section 13 he can never get the ship released through a District Court or otherwise because the provision is not there for him to do so. The whole idea of allowing power of detention when a ship is insured must be completely reviewed. Powers of penal detention in civil cases are totally against the spirit of the Civil Liability Convention which we are trying to ratify here today.
I will now deal with section 28 (1) (c). In certain political circumstances it might not be possible to gain entry to defend a case. For example, if an Israeli was trying to defend a case in a Syrian court, politically this would not be possible. This eventually should be provided for by amending section 28 (1) (c). Such an amendment, in fact, was accepted from the Israeli delegates during the drafting in 1969 in Brussels of the Civil Liability Convention. We need such a provision in our own law and I ask why it is not there. I ask the Minister to take this point on board and amend section 28 (1) (c) to allow for any political difficulties that may arise for the claimant or defendant in putting their case before the courts under this Act.
I would like, if I may, under section 32 (2) (i) to give the Minister notice that I will be proposing an amendment which I feel is essential in view of the fact that as yet we have no civil evidence Act here. For the sake of clarity I shall read the paragraph into the record:
copy an entry in any document required by this Act or by the Oil Pollution of the Sea Acts, 1956 to 1977, to be kept and require the person by whom the document is kept to certify the copy as a true copy of the entry;
It concerns evidential requirements when eventually we get to court under this Bill. As I have said, we do not have any civil evidence Act. We rely on common law for what may or may not be admitted as evidence in court. This, as we know, will lead to obvious difficulties and in cases likely to be brought under this Bill, they will be particularly acute. Technical reports and what may be considered as classified documents would not have evidential value in court. Our legal system has survived to date, notwithstanding these difficulties, as virtually all maritime claims of this nature have been settled out of court.
The Kowloon Bridge case illustrates the difficulties that may arise under this type of provision in the section. In the Kowloon Bridge case the receiver of wrecks drew up a report for the Department, having interviewed the captain and all the crew. This report by the receiver of wrecks was not for public dissemination and, therefore, will not be available as evidence in court for the fishermen who are pursuing a claim against the owners of the Kowloon Bridge. Likewise in the Betelgeuse inquiry, if this had proceeded here, Justice Costello's report would not have had evidential value in court.
I wish to indicate the content of the amendment I will be circulating on Committee Stage. I feel we might possibly get agreement on it because I do not think it is contentious in any way. I would like section 32 (2) (i) to continue in this way. After the semicolon following "entry" it should read as follows "the said copy shall have same evidential value as the original and may be proved to the court by the inspector who made the copy." That is the exact wording of the amendment I should like to circulate on which I hope to have the Minister's agreement. The reason I am proposing this amendment is quite clear. A ship which accidentally causes oil pollution damage and which is covered by insurance might have long since left our territorial waters by the time the case gets to court. If we do not accept copies of the original evidence, such as the logbook, which displays the discharging and the offloading of the oil at different ports it may be nigh impossible to get the captain, the crew or whoever the relevant member is back into our Irish courts to give first-hand evidence or to produce the original logbook as the original evidence. My amendment seeks to make provision for the fact, as we do not have evidential law in this country, that certified copies of the evidence may be produced in court by the original copier of that evidence and that that would be accepted as evidence in the particular case.
In relation to section 33 (1) (c) I will also be circulating the same amendment, substituting "harbour-master" for `inspector". One deals with the inspector's role and the next one deals with the harbour-master's role. Effectively section 33 (1) (c) would continue to read as printed in the Bill. There is a colon at the end of paragraph (c), not a semicolon for some interesting reason; there were semicolons in the previous section but after the colon which would have to become a semicolon we would insert the same amendment except giving the same powers to a harbour-master who may have made a copy of the original document. In view of what I have outlined I feel this amendment is essential. The original logbooks kept by captains in relation to the loading and discharge of oil could long since be gone out of our jurisdiction and it may not be possible to get them back in court.
Finally, I would like the Minister to consider the wording of section 34 (b) extremely carefully. I would like him to tell me what it is envisaged the harbour-master shall in fact do. We cannot leave this section without reading it. I do not know whether it was ten, a dozen or two dozen times I read this most convoluted sentence and, without any shadow of a doubt I have come to the conclusion that words are missing from it. It is sufficiently long — 12 lines — so I must be forgiven for being confused by it. I think I have studied it long enough and hard enough to say with some conviction that it is not just confusion but that in the drafting of paragraph (b), words have been left out. As I said earlier I have grave misgivings about the drafting of this section. This is my second point in relation to section 34. I might, for the benefit of the Minister, read the section and perhaps he will be able to agree with me. Section 34 specifies the provisions which shall have effect and paragraph (b) reads:
where an inspector or harbour-master has, in the exercise of the powers conferred on him under this Act, detained a ship, he shall, as soon as may be, if proceedings for an offence under this Act have been, or are about to be, instituted before a District Justice and thereupon the District Justice shall,...
At that point we depart from what the inspector or harbour-master shall do because the rest of that paragraph refers to what the district justice shall do. We are told what the district justice shall do but at no point do we find out what the inspector or harbour-master shall do. I would draw the Minister's attention to that. Perhaps he will be able to solve the riddle on Committee Stage, put in the missing words and make sense of the provision, not only for me but for those who will be trying to operate it. Unless we clarify it it will be a fruitful source of litigation and escape from the whole point of this Bill.
In conclusion, the deficiencies which will remain after the passage of this Bill are comparable to those which exist generally in maritime law. This Bill will be complemented by the other pieces of pollution legislation and by the limitation convention which I hope will be before the House fairly soon. The Minister has my support for the Bill.