PART XB Civil Liability For Oil Pollutin Damage

352G. Application

352H. Definitions

352 I. Liability of owner

352J. Limitation of liability

352K.Constitution of limitation fund.

352L. Acquisition of right for compensation by subrogation

352M.Consolidation of Claim and distribution of fund.

352N. Compusory insurance or other financial guarantee.

352O Acceptance of Certificate issued outside India.

352P Ban on entering or leaving an Indian Port without Certificate.

352Q Government ships.

352R Power to make rules.

 

352G. Application--- This Part applies to--

 

(a) every Indian ship whenever it is; and

(b) every foreign ship while it is at a port or place in India or within the territorial waters of India or any marine areas adjacent thereto over which India has, or may hereafter have, exclusive jurisdiction in regard to control of marine pollution under the Territorial Waters. Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976), or any other law for the time being in force.

352H. Definitions-- In this Part, unless the context otherwise requires--

(a) “incident” means any occurrence, or series of occurrences having the same origin, which causes of pollution damage;

(b) “oil” means any persistent oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil, whether carried on board a tanker as cargo or fuel;

(c) “owner” means--

(i) the person registered as owner of the ship and includes the operator who for the time being is in charge of the ship and the master of the ship; or

(ii) in the absence of registeration, the person owning the ship; or

(iii) in the case of a tanker owned by a foreign State, the person registered in that State as operator of the ship;

(d) “pollution damage” means loss or damage caused outside the ship by contamination resulting from escape or discharge of oil from that ship, wherever such escape or discharge occurs, and includes the costs of preventive measures and further loss or damage caused by preventive measures; so, however, that the provisions of clause (a) of sub-section (1) of section 352B shall not apply to such loss or damage;

(e) “preventive measures” means any reasonable measures taken by any person after the incident to prevent or minimise pollution damage.

3[(f) ‘ tonnage ‘ means the tonnage of a ship determined in accordance with the provisions of Section 352-B and where it is not so determinable, it means forty per cent of the weight in tons of oil cargo the ship is capable of carrying].

352I. Liability of owner-- (1) Save as otherwise provided in sub-sections (2), (3) and (4), the owner at the time of an incident, or, where the incident consists of a series of occurrences, at the time of first of such occurrences, shall be liable for any pollution damage caused by oil which has escaped or been discharged from the ship as a result of the incident.

(2) No liability for pollution damage shall attach to the owner undersubsection (1), if he proves that the pollution damage--

(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresisable character; or

(b) was wholly caused by an act or omission done with intent to cause such damage by any other person; or

(c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in exercise of its functions in that behalf.

(3). Where, with respect to any incident, the owner proves that the politician damage resulted, either wholly or partially, from an act or omission done; with intent to cause such damage, by the person who suffered damage, or from the negligence of that person, the owner shall be exonerated wholly or, as the case may be, partially, from liability to that person.

(4) Where in any incident, pollution damage results from escape or discharge of oil from two or more ships, the owners of all such ships shall be jointly and severally liable for all such damage which is not reasonably separable.

(5) No claim for pollution damage shall be made against any owner otherwise than in accordance with the provisions of this section.

(6) No claim for pollution damage shall be made against any servant or agent of the owner.

352J. Limitation of liability-- (1) Save as otherwise provided in sub-section (2), the owner may limit his liability under section 352I in respect of any incident to an aggregate amount of--

1(a) one hundred and thirty-three Special Drawing Rights for each ton of the ship’s tonnage; or

(b) fourteen million Special Drawing Rights, whichever is lower.

(2) Where any incident causing pollution damage occurs as a result of the actual fault of the owner, he shall not be entitled to limit his liability under sub-section (1).

352K. Constitution of limitation fund-- (1) (a) Any owner designing to avail of the benefit of limitation of his liability under sub-section (1) of section 352J shall make an application of the High Court for constitution of a limitation fund (hereafter in this Part referred to as fund).

(B) Such fund may be constituted either by depositing the sum with the High court or by furnishing bank guarantee or such other security as, in the opinion of the High Court, is satisfactory.

(2) (a) The insurer or any other person providing financial security to the owner may apply to the High Court for constitution of the fund under sub-section (1) and any fund so constituted shall have the same effect as if it were constituted by the owner.

(b) Such fund may be constiuted even in cases where sub-section (2) of section 352J applies but in any such event constitution of the fund shall not prejudice the rights of any claimant against the owner for full compensation exceeding the amount deposited or second in the fund.

[(3) The amount in Special Drawing Rights to be deposited or secured in the fund under sub-section (1) shall be converted in rupees on the basis of official value in rupees of the Special Drawing Rights as determined by the Reserve Bank of India on the date of constitution of the fund.

352L. Acquisition of right for compensation by subrogation--- (1) Where the owner or any of his servants or agents or any other person providing him insurance or other financial security has, a result of incident in question, paid any compensation to any claimant, such person shall, up to the amount so paid by him, be entitled to acquire by subrogation the rights to whcih the claimant so compensated would be entitled to.

(2) Where the owner or any other person providing him insurance or other financial secuirty establishes that he may, at a later date, be compelled to pay to any person, in whole or in part, any amount by way of compensation for pollution damage caused by the incident with respect to which he would have been entitled to acquire by subrogation the right of the claimant had the compensation been paid before the fund was distributed, the High Court may order that sufficient amount from the fund may provisionally be set aside to enable the owner or such other person to enforce his claim against the fund at a later date.

352M. Consolidation of claim and distribution of fund-- (1) The High Court shall consolidate all claims against the fund including those arising under section 352L.

(2) Any claim in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimise pollution damage shall rank equally with other claims against the fund.

(3) Subject to the provisions of sub-section (2) of section 352L, the High Court shall distribute the amount in the fund among all claimants in proportion to their established claims.

352N. Compulsory insurance or other financial guarantee-- (1) The owner of every Indian ship which carries 2000 tons or morse oil in bulk as cargo shall, in respect of such ship, maintain an insurance or other financial security for an amount equivalent to--

(a) "one hundred and thirty-three Special Drawing Rights for each ton of the ships tonnage, or

(b) fourteen million Special Drawing Rights,",

whichever is lower.

(2) In respect of every Indian ship which maintains insurance or otehr financial security under sub-section (1), there shall be issued by the Director General a certificate in such form and giving such particulars as may be prescribed.

Dangerous goods and grain cargoes

331. Carriage of dangerous goods-- (1) The Central Government may make rules for regulating in the interests of safety the carriage of dangerous goods in ships.

[(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for the classification, packing, labelling and marking of such goods or any class of such goods, stowing of such goods (whether with or without other cargo) including plans for stowing, the fixing of the maximum quantity of any such class of goods which may be carried in different ships or classes of ships, and such other matters relating to dangerous goods as required to be provided for implementing the provisions of the Safety Convention.]

(3) The owner, master or agent of a ship carrying or intending to carry any dangerous goods as cargo and about to make a voyage from a port in India shall furnish in advance the prescribed particulars of the ship and the cargo to such authority as may be prescribed for the purpose.

(4) A surveyor may inspect the ship for the purpose of securing that any rules under this section are complied with.

(5) If any of the rules made in pursuance of this section is not complied with in relation to any ship, the ship shall be deemed for the purpose of this Part to be an unsafe ship.

(6) This section shall apply, in the same manner as it applies to Indian ships, to ships other than Indian ships while they are within any port in India or are embarking or disembarking passengers or are loading or, discharging cargo or fuel within Indian jurisdiction.

Explanation-- In this section, the expression “dangerous goods” means goods which by reason of the nature, quantity or mode of stowage are either singly or collectively liable to endanger the life or the health of persons on or near the ship or to imperil the ship, and includes all substances within the meaning of the expression “explosive” as defined in the Indian Explosive Act, 1884 (4 of 1884), and any other goods which the Central Government may by notification in the Official Gazette specify as dangerous goods [but shall not include,--

(a) any fog or distress signals or other stores or equipment required to be carried by the ship under this Act or the rules or regulations there under;

(b) particular cargoes carried in ships specially built or converted as a whole for that purpose, such as tankers.]

[331A. Grain loading plan-- (1) No grain shall be loaded on board any Indian ship anywhere unless there is in force in respect of such ship a grainloading plan approved under sub-section (3) or sub-section (4).

(2) The grain-loading plan shall be in such form and contain such particulars as to the stability of the ship, circumstances of loading on departure and arrival, the main characteristics of the fittings used to prevent the shifting of cargo and such other matters as may be prescribed, having regard to the rules made under sub-section (5) of section 332.

(3) Save as otherwise provided in sub-section (4), the grain-loading plan shall be submitted to the Central Government for approval and that Government may, having regard to the rules made under sub-section (5) of section 332, the stability of the ship and the circumstances of loading on departure and arrival, approve the plan with such modifications, if any, as it may deem necessary.

(4) The Central Government may request the Government of a country to which the Safety Convention applies to approve the grain-loading plan of an Indian ship and an approval given in pursuance of such a required and contain a statement that it has been so given shall have effect for the purpose of this section as if the approval had been given by the Central Government.

(5) The Central Government may, at the request of the Government of a country to which the Safety Convention applies, approve the grain-loading plan of a ship registered in that country if the Central Government is satisfied, in the like manner as in the case of an Indian ship, that such approval can properly be given and where approval is given at such a request, it shall contain a statement that it has been so given.

(6) It is hereby declared that for the purpose of section 208 (which requires documents relating to navigation to be delivered by the master of a ship to his successor) the plan shall be deemed to be a document relating to the navigation of the ship.]

332. Carriage of grain-- (1) Where grain is loaded on board any Indian ship anywhere or is loaded within any port in India on board any other ship, all necessary and reasonable precautions shall be taken to prevent the grain from shifting; and if such precautions as aforesaid are not taken, the owner of the master of the ship or any agent of the owner who was charged with the loading or with sending the ship to sea laden with grain shall be guilty of an offence under this sub-section and the ship shall be deemed for the purposes of this Part to be unsafe by reason of improper loading.

(2) Where any ship which is loaded with grain outside India without all necessary and reasonable precautions having been taken to prevent the grain from shifting, enters any port in India so laden, the owner or master of the ship shall be guilty of an offence under this sub-section and the ship shall be deemed for the purposes of this Part to be unsafe by reason of improper loading.

[(2A) Where grain is loaded on board an Indian ship in accordance with a grain-loading plan approved under section 331A or where grain is loaded on board any other ship in accordance with a grain-loading plan approved by or on behalf of the Government of the country in which that ship is registered, the ship shall be deemed, for the purposes of sub-sections (1) and (2), to have been loaded with all necessary and reasonable precautions.]

(3) On the arrival at a port in India from a port outside India of any ship carrying a cargo of grain, the master shall cause to be delivered at the port to such customs or other officer as may be specified by the Central Government in this behalf, a notice stating--

(a) the draught of water and free board of the said ship after the loading of the cargo was completed at the final port of loading;

[(b) the kind of grain carried and quantity thereof stated in cubic feet, quarters, bushels or tons weight; and

(c) the mode in which the grain is stowed and the precautions taken to prevent the grain from shifting and where the grain has been stowed in accordance with the ships’ grain-loading plan, if any, that it has been so stowed.]

[(4) Any person authorised in this behalf, by general or special order of the Central Government may, for securing the observance of the provisons of this section, go on board a ship carrying a cargo of grain and require the production of the grain-loading plan of the ship and inspect the mode in which the cargo is stowed in the ship.]

(5) The Central Government may, subject to the condition of previous publication, [make rules in relation to grain-loading plans and the loading of ships] with grain generally or of ships of any class specifying the precautions to be taken, and when such precautions have been prescribed, they shall be treated for the purposes of this section to be included in the expression “necessary and reasonable precautions”.

(6) In [section 331A and this section], the expression “grain” includes wheat, maize, oats, rye, barely, rice pulses and seeds, and the expression” ship carrying a cargo of grain” means a ship carrying a quiantity of grain exceeding one-third of the ship’s registered tonnage reckoning one hundred cubic feet or two tons of wieght of grain as equivalent to one ton of registered tonnage.

Sub-division load lines

333. Sbmersion of sub-division load lines in case of passenger ships--

(1) Where--

(a) an Indian passenger ship has been marked with sub-division load lines, that is to say, load lines indicating the depth to which the ship may be loaded having regard to the extent to which she is sub-divided and to the space for the time being allotted to passengers, and

(b) the appropriate sub-division load line, that is to say, the sub-division load line appropriate to the space for the time being allotted to passengers on the ship, is lower than the load line indicating the maximum depth to which the ship is for the time being entitled under the provisions of this Part to be loaded.

the ship shall not be so loaded as to submerge in salt water the appropriate sub-division load line on each side of the ship when the ship has no list.

(2) Without prejudice to any other proceedings under this Act, any such ship which is loaded in contravention of this section may be detained until she ceases to be so loaded.

Unseaworthy ships

334. Unseaworthy ship not to be sent to sea-- (1) Every person who sends or attempts to send an Indian ship to sea from any port in India in such an unseaworthy state that the life of any person is likely to be thereby endangered shall, unless he proves that he used all reasonable means to insure her being sent to sea in a seaworthy state or that her going to sea in such unseaworthy state was under the circumstances reasonable and justifiable, be guilty of an offence under this sub-section.

(2) Every master of an Indian ship who knowingly takes such ship to sea in such unseaworthy state that the life of any person is likely to be thereby endangered shall, unless he proves that her going to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable, be guilty of an offence under this sub-section.

(3) For the purpose of giving such proof, every person charged under this section may give evidence in the same manner as any other witness.

(4) No prosecution under this section shall be instituted except by, or with the consent of, the Central Government.

(5) A ship is “unseaworthy” within the meaning of this Act when the materials of which she is made, her construction, the qualifications of the master, the number, description and qualifications of the crew including officers, the weight, description and stowage of the cargo and ballast, the condition of her hull and equipment, boilers and machinery are not such as to render her in every respect fit for the proposed voayage or service.

Go Top

Go Back