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Cook Islands Sessional Legislation |
COOK ISLANDS
PREVENTION OF MARINE POLLUTION 1998
ANALYSIS
Title
PART
I
PRELIMINARY
1. Short Title and
Commencement
2.
Interpretation
PART
II
PREVENTION
OF POLLUTION
3. Discharge of oil or
pollutants Cook Islands Waters
4.
Discharge of garbage and sewage from ships and
platforms
5. Equipment to deal with
pollution
6. Reception facilities in
the port of Avatiu
7. Duty to report
charges
8. Duty to report threatened
discharges
9.
Records
10. Powers of
inspection
PART
III
DAMPING
AND INCINERATION OF WASTES
11. Application of this
Part
12. Damping or incinerating with
out a permit
13. Offence to transfer
nuclear waste and other radioactive
matter
14. Offence to store nuclear
and other radioactive matter
15.
Permits
16. Criteria to govern dumping
of waste and other matter at sea
17.
Criteria to govern incineration of waste and other matter at
sea
18. Special
defences
PART
IV
MARINE
CASUALTIES
19. Powers of Secretary in
relation to marine casualties
20.
Right to compensation
21. Offences
under Part IV
22. Immunity from
Prosecution
PART
V
LIABILITY
AND COMPENSATION FOR OIL POLLUTION DAMAGE
23. Liability for
Pollution Damage
24. Limitation of
Liability
25. Rights of Owner on
Constitution of Fund
26. Requirement
for Insurance
27. Right of
Compensation Extinguished
28.
Jurisdiction where Pollution Damage occurs in more than one
State
29. Judgements Enforceable
30.
Exemptions
31. Fund
Established
32. Application of
Fund
33. Fund to pay
compensation
PART
VI
MISCELLANEOUS
PROVISIONS
34.
Regulations
35. Oil Spill Contingency
Plan
36. Prosecution of
offences
37. Offences and
penalties
38. Recovery of fines by
distress
---------------------------------------------------
1998, No. 5
An act to provide for the prevention of marine pollution, the dumping and transportation of other waste in Cook Islands Waters by vessels and to give effect to various international conventions on marine pollution and protection of the marine environment
(23 July 1998
BE IT
ENACTED by the Parliament of the Cook
Islands in Session assembled, and by the authority of the same, as
follows:
PART
I
PRELIMINARY
1.
Short Title
and Commencement - (1) This Act may be
cited as the Prevention of Marine Pollution Act
1998.
(2) This Act shall come into
force on the date that it is assented to by the Queen's
Representative.
2.
Interpretation
- (1) In this Act, unless the context otherwise requires -
"barge" includes a lighter or other similar vessel;
"Cook Islands aircraft" means any aircraft that is registered or required to be registered in the Cook Islands under the Civil Aviation Act;
"Cook Islands incineration facility" means an incineration facility that is owned or managed by the Government of Cook Islands;
"Cook Islands vessel" means a vessel registered in the Cook Islands or any other vessel based in the Cook Islands and operating under the authority of the Government of the Cook Islands;
"Cook Islands Waters" means -
(a) the Territorial Sea of the Cook Islands;
(b) the waters of the Exclusive Economic Zone of the Cook Islands,
and the terms "Territorial Sea" and "Exclusive Economic Zone of the Cook Islands" have the same meanings as in The Territorial Sea and Exclusive Economic Zone Act 1977;
"dumping" means -
(a) the deliberate disposal into the sea or the seabed or the subsoil of the seabed of waste or other matter; and
(b) the deliberate disposal into the sea or abandonment at sea of any vessel, aircraft, fixed or floating platform, or any other man-made structure which is situated in or on the sea or seabed; but does not include the disposal of waste or other matter incidental to, or derived from, the normal operation of vessels, aircraft, platforms or other man-made structures at sea or their equipment;
"garbage" includes all kinds of victual, domestic and operational waste excluding fresh fish and parts thereof, generated during the normal operation of a vessel and liable to be disposed of continuously or periodically, but does not include oil, noxious liquid substances and other pollutants, or sewage from vessels;
"Government" means the Government of the Cook Islands;
"Harbour Master" means the Harbour Master appointed pursuant to section 15 of the Ports Authority Act 1994-95;
"Heavy diesel oil" means marine diesel oil, other than those distillates of which more than 50% by volume distils at a temperature not exceeding 3440 Degrees Celsius when tested for in the manner for the time being prescribed by regulations made under this Act, or, while no regulations are in force, when tested by ASTM (American Society for Testing and Materials) Standard Method D.8615;
"IMDG Code" means the International Maritime Dangerous Goods Code published by the International Maritime Organisation from time to time;
"incineration" means the deliberate combustion of wastes or other matter on marine incineration facility for the purpose of their ,thermal destruction, but does not include., the incineration of waste or other matter incidental to, or derived from, the normal operation of vessels and platforms;
"marine causality" means a collision of ships, stranding or other incident of navigation, or other occurrence on board ship or external to it, resulting in material damage or imminent threat of material damage to a ship or cargo as defined in the Intervention Convention Article (ii);
"marine incineration facility" means a vessel or platform operating for the purpose of incineration at sea;
"Ministry" means the Ministry responsible for Transport;
"oil" means petroleum in any form including crude oil, fuel oil, sludge and refined products other than petrochemicals and, without limiting the generality of the foregoing, includes the substances listed in Appendix I to Annex I of MARPOL 73/78;
"oil mixture" means a mixture with any oil content;
"outside Cook Islands Waters" means seaward of the outer limits of the Exclusive Economic Zone of the Cook Islands;
"owner" in relation to a ship means-
(a) in the case of a registered ship, the registered owner;
(b) in the case of an unregistered vessel, the person actually owning the vessel;
"place on land" means any place on dry land, or on any reef, or any place connected with dry land or a reef, and the term "occupier", in relation to a place on land which has no other occupier, means the owner;
"platform" includes any man-made fixed or floating platform or other structure used for any purpose whatsoever;
"permit" means a permit to dump or incinerate waste or other matter, and the terms "general permit" and "special permit" have the same meanings as in Article III of the London Dumping Convention;
"pollutant" includes oil, hazardous substance, garbage or sewage referred to in MARPOL 73/78 and any substance declared by the Secretary to be a pollutant, and includes any water or any other substance contaminated by any such pollutant;
"pollution damage" means damage or loss of any kind occurring in the Cook Islands, Cook Islands Waters or outside the Cook Islands Waters, which is attributable to the discharge or escape of any pollutant from a vessel, or which is attributable to the dumping of waste or other matter into the sea, and includes the costs of a reasonable preventive measures taken to prevent or reduce pollution damage and any further loss or damage occurring as a result of such measures;
"pollution incident" means any occurrence that is associated with the operation of a vessel or platform and events involving the probable discharge or escape into the sea or seabed of any pollutant or other harmful substance;
"Principal Surveyor" means the Principal Surveyor appointed pursuant to section 54 of the Shipping Act 1998;
"reception facilities", means such facilities as the Government of the Cook Islands may provide or cause to be provided at any of its ports of entry or elsewhere in the Cook Islands for enabling vessels to discharge garbage, but not for other pollutant residues from vessels;
"related interests" includes interests directly affected or threatened by pollution damage, including but not limited to, maritime, coastal, port, (including fisheries activities constituting an essential means of livelihood of the person concerned), tourist attractions, public health and welfare, and the conservation of living marine resources and of wildlife;
"sea" means all areas of the ocean, including those defined in The Territorial Sea and Exclusive Economic Zone Act 1977;
"Secretary" means the Secretary for the Ministry responsible for Shipping;
"sewage" includes-
(a) drainage and other wastes from any form of toilets, urinals, and W.C. scuppers;
(b) drainage from medical premises, including dispensaries and sick bays, by way of wash basins, wash tubs and scuppers located in such premises;
(c) drainage from spaces containing living animals;
"ship" means-
(a) any sea-going vessel of any type whatsoever; and
(b) any floating craft, with the exception of an installation or device engaged in the exploration and exploitation of the resources of the seabed and the ocean floor and the subsoil thereof;
"synthetic fishing nets" includes synthetic material used in the repair of such nets;
"transfer" in relation to any pollutant, means the conveyance in bulk from the vessel to terminal or vice versa or the internal transfer from tank to tank within the vessel;
"unit of account" shall have the same meaning as in the International Convention on Civil Liability for Oil Pollution Damage, 1969 and the 1976, 1984 and 1992 Protocols to the Civil Liability Convention (CLC 1969);
"untreated ballast water" means ballast water which contains oil or pollutant and has not been subjected to an effective process for separating the oil or pollutant from the water;
"vessel" means every description of water craft (including any ship, boat, barge, non-displacement craft or seaplane) used or capable of being used as a means of transportation on or under the sea, without regard to the method of or lack of propulsion and includes any hovercraft;
"waste or other matter" means material and substances of any kind, and includes oil and any pollutant.
(2)
The Secretary may, from time to time by Order published in the Gazette, declare
to be a pollutant for the purposes of this Act
any substance which, in t opinion
of the Secretary, when added to any waters has the effect of contaminating those
waters so as to
make the waters unclean, noxious, or impure, or detrimental to
the heals safety, or welfare of any person, or poisonous or harmful
to marine
life.
(3) Any reference in this
Act to the discharge or escape of oil or of any pollutant from any vessel or
platform includes, but is not
limited to, spilling, leaking, pumping, pouring,
emitting, or emptying of that pollutant howsoever it is caused or occur but does
not include dumping.
(4) The
following International Maritime Conventions are adopted into and have the force
of law in the Cook Islands:
(a) International Convention for the Prevention of Pollution from Ships, 1973; and the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL 73/78);
(b) Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (The London Dumping Convention);
(c) Convention for the Protection of the natural Resources and Environment of the South Pacific Region 1986 (SPREP Convention), including the -
(i) Protocol for the Prevention by Pollution of the South Pacific Region by Dumping, 1986;
(ii) Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region; International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties (1969); and the Protocol relating to Intervention on the High Seas in cases of Pollution by Substances other than Oil, 1973;
(d) International Convention relating to Intervention on the High Seas in case of Oil Pollution Casualties (1969); and the Protocol relating to Intervention on the High Seas in cases of Pollution by Substances other than Oil, 1973;
(e) International Convention on Civil Liability for Oil Pollution Damage, 1969 and the 1976, 1984 and 1992 Protocols to the Civil Liability Convention (CLC 1969); and
(f) International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage, 1976,1984 and the 1992 Protocols to the Fund Convention (FUND 1971);
and
include any Annexes, Appendices, and Addenda, to the above-mentioned
conventions; and any other international agreement for the
protection of the
marine environment to which the Cook Islands is a Contracting
Party.
(5) The following
International Maritime Conventions are adopted into and have the force of law in
the Cook Islands, but only to the
extent that the provisions apply to the Cook
Islands:
(a) International Convention for the Safety of Life at Sea, 1974, (SOLAS 1974) and its Protocol of 1978, articles, annex and certificates, and any amendment thereto;
(b) International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, (STCW 1978) as amended in 1995, (STCW-95) and any subsequent amendments thereto.
PART
II
PREVENTION
OF POLLUTION
3.
Discharge of
oil or pollutants into Cook Islands
Waters - (1) No oil or any pollutant
shall be discharged or allowed to escape from a vessel or platform into Cook
Islands waters.
(2) If any oil or
pollutant is discharged or escapes into Cook Islands Waters-
(a) from any vessel; or
(b) from any place on land; or
(c) from any apparatus used for transferring a pollutant to or from a vessel; or
(d) from any platform; or
(e) as a result of operations for the exploration of the seabed or subsoil or the exploitation of the natural resources thereof,
then,
subject to the provisions of this Act, -
(a) the owner or master of the vessel; or
(b) the occupier of any place on land; or
(c) the person in charge of the apparatus; or
(d) the owner of the platform or structure; or
(e) the person in charge of the operations -
commits an offence
and shall be liable upon conviction to a fine not exceeding $500,000 or two
years imprisonment and in addition,
shall be liable to pay for the total costs
of the clean up operation necessary to restore the environment to its original
condition.
(3) This section shall
not apply to:
(a) discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a vessel or saving life at sea; or
(b) the discharge into the sea of oil or oily mixture resulting from damage to a vessel or its equipment -
(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising the discharge; and
(ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or
(c) the discharge into the sea of substances containing oil, approved by the Secretary, when being used for the purpose of combating specific pollution incidents in order to minimise the damage from pollution. Any such discharge shall be subject to the approval of the Government of the Cook Islands in whose jurisdiction it is contemplated the discharge will occur.
4.
Discharge of
garbage and sewage from ships and
platforms - (1) No garbage or sewage
shall be discharged or allowed to escape from a vessel or platform in Cook
Islands Waters.
(2) If any garbage
or sewage is discharged or escapes into Cook Island Waters -
(a) from any vessel; or
(b) from any place on land; or
(c) from any apparatus used for transferring a pollutant to or from a vessel; or
(d) from any platform; or
(e) as a result of operations for the exploration of the seabed or subsoil or the exploitation of the natural resources thereof,
then,
subject to the provisions of this Act, -
(a) the owner or master of the vessel; or
(b) the occupier of any place on land; or
(c) the person in charge of the apparatus; or
(d) the owner of the platform or structure; or
(e) the person in charge of the operations -
commits
an offence and shall be liable upon conviction to a fine not exceeding $500,000
or two years imprisonment and, in addition,
shall be liable to pay for the total
costs of the clean up operation necessary to restore the environment to its
original condition.
(3) Subject to
Annex V of MARPOL 73/ 78, the disposal into the sea of all plastics, including
but not limited to synthetic ropes,
synthetic fishing nets and plastic garbage
bags is prohibited, and any person so doing commits an offence and shall be
liable upon
conviction to a fine not exceeding
$500,000.
(4) The disposal into
the sea of the following garbage shall be made as far as practicable from the
nearest land but in any case is
prohibited if the distance from the nearest land
is less than-
(a) 35 nautical miles for dunnage, lining and packing materials that will float;
(b) 25 nautical miles for food wastes and all other garbage including paper products, rags, glass, metal, bottles, crockery and similar refuse,
and
any person so doing commits an offence, and shall be liable upon conviction to a
fine not exceeding $50,000.
5.
Equipment to
deal with pollution - (1) The Secretary
may designate the Principal Surveyor or other Surveyors to carry out inspections
on board vessels and platforms
to determine the adequacy and appropriateness of
equipment carried on board to deal with waste or other matter, and may charge
such
fees as are reasonable to cover the rant of` such
inspection.
(2) For the purpose of
cleaning up or removing or dispersing any pollutant in or on the sea, all
vessels and platforms shall carry
adequate and appropriate equipment as required
by international and regional standards in quantities determined by the
Principal
Surveyor.
(3) The
equipment referred to in sub-section (2) shall be of a type tested to
international standards and approved by the Maritime
Safety Authority of New
Zealand or similar national regulatory
authority.
(4) Where the equipment
referred to in sub-section (2) is, on inspection, found to be inadequate or
inappropriate, the Principal Surveyor
may require the vessel's master or owner
to rectify such deficiencies.
(5)
If the provisions of this section are contravened, the owner or master of a
vessel or platform commits an offence, and shall be
liable upon conviction to a
fine not exceeding $100,000.
6.
Reception
facilities in the port of Avatiu - (1)
The Government of the Cook Islands shall not be required to provide reception
facilities at the Port of Avatiu nor elsewhere,
in the Cook Islands, for those
pollutants and other substances for which it is not equipped to dispose
of.
(2) The Secretary may approve
the installation of reception facilities for the disposal of garbage, from
visiting warships, yachts
and locally registered vessels provided that these
comply with the specification prescribed in MARPOL
73/78.
(3) Nothing in this section
shall be construed as requiring the Secretary to allow untreated ballast water
to be discharged into Cook
Islands
Waters.
7.
Duty to
report discharges - (1) If any pollutant,
garbage or sewage is discharged or escapes into Cook Islands Waters from a
vessel or platform in, on or under
the sea or seabed, or from a place on land,
the owner, master, person in charge of operations, or the occupier of the place
on land
shall immediately and by the quickest available means report the
occurrence to the Secretary.
(2)
The details of report required to be made under sub-section (1) of this section
shall contain the information prescribed in
Regulations.
8.
Duty to
report threatened discharges - Where
there is any significant throat -that a discharge or escape of any pollutant,
garbage or sewage may occur, the provisions
of section 7 apply
mutatis
mutandis
9.
Records
- (1) Every oil tanker of 150 tons gross tonnage and above and every other
vessel of 400 tons gross tonnage and above in Cook Islands
Waters shall be
provided with an Oil Record Book Part I (Machinery space operations). Every oil
tanker in Cook Islands Waters of
150 tons gross tonnage and above shall also be
provided with Oil Record Book Part II (Cargo Ballast Operations). The Oil Record
Book(s),
whether as a part of the ship's official log-book or otherwise, shall
be in the Form(s) specified in appendix III to Annex I of MARPOL
73/
78.
(2) The information to be
recorded in Oil Record Books shall be completed on each occasion that any of the
specified operations are
carried out, on a tank-to-tank basis if appropriate, in
the manner set forth in
Regulations.
10.
Powers of
inspection - (1) The Secretary may
appoint a suitably qualified person as an inspector to report to
him-
(a) whether the provisions of this Act have been complied with;
(b) what measures have been taken to prevent the discharge or escape of oil, pollutants, garbage or sewage other than in accordance with the provisions of this Act;
(c) whether reception facilities provided in port are adequate to meet the needs of the vessels using them without causing undue delay.
(2)
Such person(s) designated by the Secretary shall have the powers prescribed in
Regulations.
(3) The inspector
appointed under this section shall have the same powers to exercise Port State
Control functions as are set out
in Chapter 1, Part A, Regulation 19 of SOLAS
1974 and Article 10 of STCW 1978 and Regulation I/4 of
STCW-95.
(4) Where, in respect of
compliance with the safety provisions of SOLAS and the verification and
assessment provisions of STCW, any
deficiencies are found, the inspector may
require that those deficiencies be corrected before the vessel proceeds to
sea.
(5) The failure to correct
any deficiency, which in the opinion of the inspector could pose a danger to
persons, property or the environment,
shall be grounds for the detention of the
ship.
PART
III
DUMPING
AND INCINERATION OF WASTES
11.
Application
of this Part - This part of the Act shall
apply to-
(a) all vessels and aircraft that take on board waste or other matter in Cook Islands Waters;
(b) all vessels and aircraft that incinerate or dump waste or other matter in Cook Islands Waters or into the seabed or the subsoil of the seabed below Cook Islands Waters;
(c) all vessels and aircraft dumped into Cook Islands Waters.
12.
Dumping or
incinerating without a permit - (1) No
wastes or other matter in whatsoever form or condition shall be dumped from a
vessel or platform into Cook Islands Waters
except as specified under Article IV
of the London Dumping
Convention.
(2) If, otherwise than
in accordance with Article IV 1(a) or V(2) and Annex I of the London Dumping
Convention, or without a permit
issued pursuant to section 15 of this Act
-
(a) any waste or other matter taken on board any vessel or aircraft in the Cook Islands or in Cook Islands Waters for the purpose of dumping or incineration; or
(b) any waste or other matter is dumped into Cook Islands Waters from any vessel, or from any aircraft, or from any fixed or floating platform, or from any other man-made structure; or
(c) any waste or other matter is incinerated in Cook Islands Waters; or
(d) any vessel, aircraft, or platform is dumped in Cook Islands Waters,-
then
the owner and the master of the vessel, or the owner and the pilot in command of
the aircraft, or the owner and the person in
control of the operations of the
platform, commit an offence under this
section.
(3) If, otherwise than in
accordance with a permit issued under this Act -
(a) any waste or other matter is dumped by any Cook Islands vessel or Cook Islands aircraft into any part of the sea beyond Cook Islands Waters;
(b) any Cook Islands vessel or Cook Islands aircraft is dumped into any part of the sea beyond Cook Islands Waters; or
(c) any waste or other matter is incinerated at sea beyond Cook Islands Waters or any Cook Islands marine incineration facility -
then,
as the case may be the owner and the master of the vessel, or the owner and the
pilot in command of the aircraft, or the owner
of the marine incineration
facility and the person having control of the operations of the facility, commit
an offence under this
section.
(4)
Every person who commits an offence under this section-
(a) is liable on conviction to a fine not exceeding $100,000 and
(b) is also liable to pay such amount as the Court may assess in respect of the expenses and costs that have been incurred or will be incurred in removing or cleaning up or dispersing any waste or other matter to which the offence relates from Cook Islands Waters or from any foreshore or port works in Cook Islands Waters; or
13.
Offence to
transport nuclear waste and other radioactive
matter - (1) No nuclear waste or other
radioactive matter in whatsoever form or condition shall be transported by a
vessel or platform into
Cook Island waters except as specified under Article IV
of the London Dumping
Convention.
(2) If
-
(a) any nuclear waste or other radioactive matter, for the purpose of transporting is taken on board any vessel or any aircraft into the Cook Islands, or Cook Islands Airspace or in Cook Islands Waters; or on the seabed or subsoil below Cook Islands Waters; or
(b) any nuclear waste or other radioactive matter is transported from any fixed or floating platform or from any other man-made structure into the Cook Islands or it's Airspace or in Cook Islands Waters or on the seabed or subsoil below Cook Islands Waters; or
(c) any nuclear waste or other radioactive matter is transported from any Cook Islands vessel or from any Cook Islands aircraft into the Cook Islands or its Airspace or in Cook Islands Waters or the sea outside Cook Islands Waters,
then,
as the case may be, the owner and the master of the vessel, or the owner and the
pilot in command of the aircraft, or the owner
of the platform or structure,
commit an offence under this
section.
(3) Waste or other matter
(including sewage, sludge, dredge spoil, fly ash, agricultural waste,
construction and building materials,
artificial reef building material, and
other such material) shall be regarded as non-radioactive if it-
(a) has not been contaminated with radionuclides of anthropogenic origin (other than dispersed global fallout from the testing of nuclear explosive devices);
(b) is not a source of radionuclides which occur naturally and which offer a potential for commercial utilisation; or
(c) has not been enriched in natural or artificial radionuclides.
(4)
Every person who commits an offence under this section-
(a) is liable on conviction to a fine not exceeding $1,000,000 and;
(b) is also liable to pay such amount as the Court may assess in respect of the expenses and costs that have been incurred or will be incurred in preventing or removing the nuclear waste or other radioactive matter, or enforcing eviction, or any other matter to which the offence relates.
14.
Offence to
store or dump nuclear waste and other radioactive
matter - (1) Nor nuclear wastes or other
radioactive matter in whatsoever form or condition shall be stared or dumped by
a Vessel or platform
into Cook Islands Waters except as specified under Article
IV of the London Dumping
Convention.
(2) If
-
(a) any nuclear waste or other radioactive matter is, for the purpose of dumping, taken on board any vessel or any aircraft in the Cook Islands or in Cook Islands Waters; or
(b) any nuclear waste or other radioactive matter is dumped from any fixed or floating platform or from any other man-made structure into Cook Islands Waters or into the seabed or subsoil below Cook Islands Waters; or
(c) any nuclear waste or other radioactive matter is dumped from any Cook Islands vessel or from any Cook Islands aircraft into any of the sea outside Cook Islands Waters,
then,
as the case may be, the owner and the master of the vessel, or the owner and the
pilot in command of the aircraft, or the owner
of the platform or structure and
the person in control of the operations of the platform or structure, commit an
offence under this
section.
(3)
Every person who commits an offence under this section-
(a) is liable on conviction to a fine not exceeding $1,000,000 and;
(b) is also liable to pay such amount as the Court may assess in respect of the expenses and costs that have been incurred or will be incurred in removing or cleaning up or dispersing the waste or other matter to which the offence relates.
15.
Permits
- (1) The Secretary may, in accordance with the provisions of Article IV,
Article V (2) and Article VI, with Annexes II and III of
the London Dumping
Convention, 1972 and with any Regulations made under this Act, consider
applications for permits and issue permits
for the dumping or incineration of
waste or other matter.
(2) The
circumstances in which a permit may be obtained prior to and for the dumping of
matter listed in the London Dumping Convention
1972, and the conditions under
which a permit may be issued shall be prescribed in
Regulations.
(3) Notwithstanding
anything in this Act, no permit shall authorise the dumping of nuclear waste or
other radioactive matter.
(4)
.Every person who fails to comply with any condition or requirement contained in
a permit commits an offence, and is liable on
conviction to a fine not exceeding
$100,000 or a term-of imprisonment not exceeding one year, and in addition a
fine of $10,000 for
each day during which the offence has
continued.
16.
Criteria to
govern dumping of waste and other matter at
sea - The matters that are to betaken
into account in establishing criteria for the consideration of applications for
permits for dumping
waste or other matter at sea shall be those prescribed in
Regulations.
17.
Criteria to
govern incineration of waste and other matters at
sea - The matters that are to be taken
into account in establishing criteria and when considering applications for
permits for the incineration
of waste or other matter at sea shall be those
prescribed in Regulations.
18.
Special
Defences - Where a person is charged with
an offence under sections 3, 4 or 12 of this Act, it shall be defence to prove
on the balance of
probabilities that the -
(a) Discharge of oil or pollutants in Cook Islands Waters;
(b) Discharge of garbage and sewage from ships and platforms;
(c) Dumping or incinerating of waste or other matter without a permit, -
was
necessary in such circumstances as are prescribed in Regulations.
PART
IV
MARINE
CASUALTIES
19.
Powers of
Secretary in relation to marine
casualties - (1) Without prejudice to any
rights or powers of the Government exercisable under international law, the
powers conferred by this
Part shall only be exercised and the measures shall
only be taken where, as a result of -
(a) marine casualty in Cook Islands Waters or on the High Seas; or
(b) a pollution incident occurring on board a platform,
it
appears to the Secretary necessary to prevent, reduce or eliminate pollution
from any oil or pollutant in or the risk of any such
pollution to Cook Islands
Waters, the coasts of the Cook Islands or related
interests.
(2). Where it appears
to the Secretary that as a result of any marine ,casualty or any incident
mentioned in sub-section (1) of this
section, or as a result of acts related to
any such casualty or incident, a vessel or platform constitutes or is likely to
constitute
a serious risk of pollution in, or to, Cook Islands Waters, or to the
reefs of the Cook Islands, or to related interests, then, for
the prevention,
reduction or elimination of pollution, the Secretary may-
(a) issue any instructions to the master, owner or agent of the :vessel, or to any person in charge of any salvage operation in respect of the vessel and an employee or agent of that person,
(b) take any measures whatsoever with respect to the vessel or cargo, or both, or to the platform or operations relating thereto, or both, whether or not he has issued instructions under paragraph (a).
(3)
The measures the Secretary may direct to be taken or may take himself under
paragraph (b) of sub-section (2) of this section may
include -
(a) the removal to another place of the vessel or its cargo, or both;
(b) the removal of cargo from the vessel; or
(c) the salvage of the vessel or its cargo, or both;
(d) the sinking or destruction of the vessel or the destruction of the cargo, or both;
(e) the taking over of control of the vessel.
(4)
In order to carry out any of the measures referred to in sub-section (3) for
this section, the Secretary may, after consulting
the owners of the vessel to
whose master the instructions are to be given-
(a) Instruct the master of any vessel within Cook Islands Waters to render assistance to any vessel that is or is likely to be a maritime casualty; and
(b) Instruct the master of any vessel to take on board any equipment, to sail to any place, to render assistance to any vessels in assisting a marine casualty or to assist in any operations for the cleaning up, removal, or dispersal of any oil or pollutant, and to obey the instructions of any person authorised by the Secretary to exercise control over or responsibility for marine casualty.
(5)
The Secretary shall notify any person mentioned in paragraph (a) of sub-section
(2) of this section of any measures that the Secretary
proposes to take under
paragraph (b) of that sub-section, provided that the Secretary may dispense with
such notice where in his
opinion the urgency of the situation is such that the
measures must be taken
immediately.
(6) The powers of the
Secretary to issue instructions under sub-sections (2) and (3) of this Section
shall be exercisable by any person
duly authorised by the
Secretary.
20.
Right to
compensation - (1) Where any action taken
by any person in accordance with instructions issued pursuant to sub-sections
(2) and (3) of section
19 of this Act, -
(a) was in excess of that reasonably necessary to eliminate, prevent or reduce pollution or the risk of pollution; or
(b) was such that the benefit resulting from the action or measures taken did or was likely to do was disproportionately less than the expense incurred or the loss or the damage suffered as a result of that action or measures -
then,
a person who has incurred expense or loss or damage as a result of the taking of
that action or those measures, may recover
compensation from the
Government.
(2) Where a claim is
brought against the Government for compensation under sub-section (1) of this
section the Court, in determining
whether paragraph (b) of that sub-section
applies, shall take into account -
(a) the extent and probability of imminent damage if the measures had not been taken; and
(b) the likelihood of the measures taken being, effective; and
(c) the extent of the damage which has been caused by the measures taken.
(3)
Where any measures have been taken pursuant to section 19 of this Act on the
High Seas and there is a dispute between the party
taking such measures and the
owner of the vessel or Government of the State where the vessel is registered or
the Government of the
State having any related interests in respect of the
following -
(a) whether such measures were necessary to prevent, mitigate or eliminate grave and imminent danger to Cook Islands Waters or the reefs of the Cook Islands or related interest from pollution or the threat of pollution by oil or pollutants other than oil; or
(b) whether the measures taken were in excess of that reasonably necessary to eliminate, prevent or reduce pollution or the risk of pollution; or
(c) whether compensation should be paid in accordance with sub-section (1); or
(d) the amount of such compensation,
then,
if settlement by negotiation between the parties has not been possible, and if
the parties do not otherwise agree, the controversy
shall be submitted, upon the
request of any of the parties, to conciliation, and if that does not succeed
then to arbitration according
to the procedures set out in the Annex to the
International Convention relating to Intervention on the High Seas in Cases of
Oil
Pollution Casualties,
1969.
21.
Offences
under Part IV - (1) Every person commits
an offence who -
(a) fails to comply with any instructions issued pursuant to section 19 of this Act;
(b) wilfully obstructs a person acting in compliance with any instructions issued pursuant to section 19 of this Act; or (c) wilfully obstruct any person acting on behalf of the Secretary in carrying out any of the powers conferred by section 19 of this Act.
(2)
Every person who commits an offence under this section is liable on conviction
to a fine not-exceeding $100,000 of each day during
which the offence has
continued.
(3) In any proceedings
for an offence under this section it shall be a defence to prove on the balance
of probabilities that -
(a) the failure to comply with any instructions issued tinder section 19; or
(b) the wilful obstruction of -
(i) any person acting in compliance with such instruction duly issued; or
(ii) any person acting on behalf of the Secretary -
resulted
from the need to save life at
sea.
(4) In any proceedings for an
offence trader this section, it shall also be a defence to prove on the balance
of probabilities that
the person charged with the offence used all due diligence
to comply with any instructions issued pursuant to section 19 of this
Act.
22.
Immunity from
Prosecution - Where -
(a) the Secretary or any person duly authorised by the Secretary has taken any measures pursuant to paragraph (b) of sub-section (2) of section 19 of this Act; or
(b) any person has taken any action or refrained from taking any action in accordance with instructions issued pursuant to paragraph (a) of sub-section (2) of section 19 of this Act -
then,
subject to section 20 of this Act or any contractual obligations or
arrangements, the Secretary or that person, as the case
may be, shall not incur
any civil liability in respect thereof.
PART
V
LIABILITY
AND COMPENSATION FOR OIL POLLUTION DAMAGE
23.
Liability for
Pollution Damage - (1) Except as provided
in subsections (2) and (3) of this section, the owner of a vessel at the time of
an incident shall be liable
for any pollution damage caused by the vessel as a
result of the incident.
(2) No
liability for pollution damage shall be attached to the owner if he proves on
the balance of probabilities that the damage:
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
(b) was wholly caused by an act or omission done with intent to cause damage by a third party; 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 the exercise of that function.
(3)
If the owner proves on the balance of probabilities that the pollution damage
resulted wholly or partially either from an act
or omission done with intent to
cause damage by the person who suffered the damage or from the negligence of
that person, the owner
may be exonerated wholly or partially from his liability
to such person.
(4) No claim for
compensation for pollution damage may be made; against the owner otherwise than
in accordance with this Part of this
Act. Subject to sub-section (5), no claim
for compensation for pollution damage under this Part or otherwise may be made
against:
(a) employees or agents of the owner or members of the crew;
(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;
(c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;
(d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;
(e) any person taking preventive measures;
(f) all employees or agents of persons mentioned in sub-paragraphs (c), (d) and (e),
unless
the damage resulted from their personal act or omission, committed with the
intent to cause such damage, or recklessly and
with knowledge that such damage
would probably result.
(5) Nothing
in this Part of this Act shall prejudice any right of recourse of the owner
against third parties.
24.
Limitation of
Liability - (1) The owner of a vessel
shall be entitled to limit his liability under this Part of this Act in respect
of any one incident to
an aggregate amount calculated as follows:
(a) 3 million units of account for a ship not exceeding 5,000 units of tonnage;
(b) for a ship with a tonnage in excess thereof, for each additional unit of tonnage, 420 units of account in addition to the amount mentioned in sub-paragraph (a),
Provided,
however, that this aggregate amount shall not in any event exceed 59.7 million
units of account.
(2) The owner
shall not be entitled to limit his liability under this Part of this Act if it
is proved that the pollution damage resulted
from his personal act or omission,
committed with the intent to cause such damage, or recklessly and with knowledge
that such damage
would probably
result.
(3) For the purpose of
availing himself of the benefit of the limitation provided for in sub-section
(1), the owner shall constitute
a fund for the total sum representing the limit
of his liability with the Court or other competent authority of any one of the
Contracting
States in, which action is brought under Article IX of CLC 1969 or,
if no action is brought, with any Court in which an action is
brought under
Article IX of CLC 1969. The fund can be constituted either by depositing the sum
or by producing a bank guarantee or
other guarantee in an amount considered
adequate by the Court.
(4) The
fund shall be distributed among the claimants in proportion to the amounts of
their established claims.
(5) If
before the fund is distributed the owner or any of his employees or agents or
any person providing him insurance or other financial
security has as a result
of the incident in question, paid compensation for pollution damage, such person
shall, up to the amount
he has paid, acquire by subrogation the rights which the
person so compensated would have enjoyed under this Part of this
Act.
(6) The right of subrogation
provided for in sub-section (5) may also be exercised by a person other than
those mentioned therein
in respect of any amount of compensation for pollution
damage that he may have paid.
(7)
Where the owner or any other person establishes that he may be compelled to pay
at a later date in whole or in part any such amount
of compensation, with regard
to which such person would have enjoyed a right of subrogation under
sub-sections (5) or (6), had the
compensation been paid before the fund was
distributed, the Court may order that a sufficient sum shall be provisionally
set aside
to enable such person at such later date to enforce his claim against
the fund.
(8) Claims 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.
(9)
The "unit of account" referred to in sub-section (1) is the Special Drawing
Right as defined by the International Monetary Fund.
The amounts mentioned in
sub-section (1) shall be converted into New Zealand currency on the basis of the
value of that currency
by reference to the Special Drawing Right on the date of
the constitution of the fund referred to in sub-section
(3).
(10) The value of the New
Zealand currency, in terms of the Special Drawing Right, shall be calculated in
accordance with the method
of valuation applied by the International Monetary
Fund in effect on the date in question for its operations and
transactions.
(11) For the purpose
of this section, the vessel tonnage shall be the gross tonnage calculated in
accordance with the tonnage measurement
regulations contained in Annex 1 of the
International Convention on Tonnage Measurement of Ships,
1969.
(12) The insurer or other
person providing financial security shall be entitled to constitute a fund in
accordance with this section
on the same conditions and having the same effect
as if it were constituted by the owner. Such a fund may be constituted even if,
under the provisions of sub-section (2) of this section, the owner is not
entitled to limit his liability, but its constitution shall
in that case not
prejudice the rights of any claimant against the
owner.
25.
Rights of
Owner on Constitution of Fund - (1) Where
the owner, after an incident, has constituted a fund in accordance with section
24 and is entitled to limit his liability,
(a) no person having a claim for pollution damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim;
(b) the Court shall order the release of any vessel or other property belonging to the owner which has been arrested in respect of a claim for pollution damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest.
(2)
The foregoing, however, shall only apply if the claimant has access to the Court
administering the fund and the fund is actually
available in respect of his
claim.
26.
Requirement
for Insurance - (1) The owner of a vessel
registered in a signatory State and carrying more than 2,000 tonnes of oil in
bulk as cargo shall be
required to maintain -insurance or other financial
security, such as the guarantee of a bank or a certificate delivered by an
international
compensation fund, in the sums fixed by applying the limits of
liability prescribe in section 24 sub-section (1) to cover his liability
for
pollution damage under CLC
1969.
(2). The owner of a vessel
referred to in sub-section (1) of this section shall be required to keep a
certificate of insurance aboard
the vessel in a form set forth in
Regulations.
27.
Right of
Compensation Extinguished - (1) Rights of
compensation under this Part of this Act shall be extinguished unless an action
is brought within three years from
the date when the damage occurred. However,
in no case shall an action be brought after six years from the date of the
incident that
caused the
damage.
(2) Where this incident
consists of a series of occurrences, the six years period shall run from the
date of the first such occurrence.
28. Jurisdiction where Pollution Damage occurs in more than one State -
(1) (a) Where an incident has caused pollution damage in Cook Islands Waters and in the Territorial Sea or Exclusive Economic Zone of one or more signatory States or preventive measures have been taken to prevent or minimise pollution damage in Cook Islands Waters and in the Territorial Sea or Exclusive Economic Zone of one or more signatory States; actions for compensation may only be brought in the High Court of the Cook Islands;
(b) when any such signatory States within ninety (90) days' notice of any such action shall be given to the defendant.
(2)
After the fund has been constituted in accordance with section 24 of this Act,
the Court in which the fund is constituted shall
be exclusively competent to
determine all matters relating to the apportionment and distribution of the
fund.
29.
Judgements
Enforceable - (1) Any judgement given by
a Court with jurisdiction in accordance with section 28 of this Act that is
enforceable in the State
of origin when all avenues of appeal have been
exhausted shall be recognised in any signatory
State.
(2) A judgement recognised
under sub-section (1) shall be enforceable in each signatory. State as soon as
the formalities required
in that State have been complied with. These
formalities shall not permit the merits of the case to be
re-opened.
30.
Exemptions
- (1) The provisions of this Part of this Act shall not apply to warships or
other ships owned or operated by a State and used, for
the time being, only on
government non-commercial
service.
(2) With respect to ships
owned by a signatory State and used for commercial purposes each State shall be
subject to suit in the jurisdictions
set forth in section 28 of this Act and
shall waive all defences based on its status as a sovereign
State.
31.
Fund
Established - (1) The International Oil
Pollution Compensation Fund 1971, hereinafter referred to as "the Fund",
established under FUND 1971
has the following aims:
(a) to provide compensation for pollution damage to the extent that the protection afforded by CLC 1969 is inadequate;
(b) to give effect to the related purposes set out in FUND 1971.
(2)
The Fund shall be recognised as a legal person capable under the laws of the
Cook Islands of assuming rights and obligations and
of being a party in legal
proceedings before the High Court of the Cook Islands, and the Director of the
Fund is its legal
representative.
32.
Application
of Fund - The Fund shall apply
exclusively-
(a) to pollution damage caused in Cook Islands Waters;
(b) to preventive measures, wherever taken, to prevent or minimise such damage.
33.
Fund to Pay
Compensation - For the purpose of
fulfilling its function under sub-section (1) (a) of section 31 of this Act, the
Fund shall pay compensation
in accordance with the provisions of FUND 1971 to
any person suffering pollution damage if such person has been unable to obtain
full and adequate compensation for the damage under the terms of CLC
1969.
PART
VI
MISCELLANEOUS
PROVISIONS
34.
Regulations
- The Cabinet, by Order in Executive Council may make Regulations
(a) providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration and to any International Convention dealing with Pollution of the Marine Environment to which the Cook Islands is a party;
(b) and prescribing offences for breaches of any such regulations, and, except where some other penalty is prescribed by this Act, prescribing fines not exceeding $50,000 in respect of any such offence and, where the offence is a continuing one, further fines not exceeding $5000 for each day during which the offence has continued;
(c) prescribing the method of serving a summons and the procedures in respect of the prosecution of offences and in respect of evidence and proof;
(d) prescribing penalties and methods of assuring payment of fines by distress;
(e) prescribing rights of appeal;
(f) providing for the notification of Consular Officers or the notifications of the Government of the State in which the vessel is registered through appropriate diplomatic channels;
(g) providing for the levying of fees and other charges.
35.
Oil Spill
Contingency Plan - (1) The Ministry may
develop, amend, approve and adopt the Cook Islands "Oil Spill Contingency
Plan".
(2) The Secretary may from
time to time appoint an On-scene Commander to carry out the duties and functions
specified in the Oil Spill
Contingency
Plan.
(3) In the event of a
pollution incident occurring in Cook Islands Waters, the On-scene Commander
specified in the Cook Islands Oil
Spill Contingency Plan shall take charge of
all forces and resources necessary to combat and clean up the effects of the oil
spill
on the, environment.
(4) The
On-scene Commander has the authority to commit or expend funds necessary to
combat and clean up the effects of the oil spill
on the environment to the limit
determined by the Secretary from time to
time.
(5) The On-scene Commander
has the authority to requisition human resources, vehicles or material as may,
in his opinion, be necessary
to combat and clean up the effects of the oil spill
on the environment.
(6) The
On-scene Commander shall, in the event of a pollution incident, maintain a log
of events and a record of all committed or
expended funds or resources
requisitioned necessary to fulfil his duties as set out in the Oil Spill
Contingency Plan.
(7) The person
designated On-scene Commander in the Oil Spill Contingency Plan shall be
responsible for exercising that Plan at regular
intervals and recommending to
the Ministry any changes that are necessary or desirable for its
improvement.
36.
Prosecution
of offences - Any Police Officer or
Fisheries Officer appointed under the Marine Resources Act 1989 shall have the
power under this Act to arrest with or without warrant any person committing an
offence or whom he or she has reasonable
cause to believe has committed an
offence against the provisions of this
Act.
37.
Offences and
penalties - (1) A person who commits an
offence against this Act or any regulations made thereunder for which no penalty
is provided elsewhere
shall be liable upon conviction to a fine not exceeding
$25,000.
(2) Where an offence
against this Act is a continuing one and no penalty is provided elsewhere for
the continuance of the offence
the person who commits that offence shall, in
addition to any other liability, be liable upon conviction a fine not exceeding
$2,500
for every day or part of day during which the offence
continues.
38.
Recovery of
fines by distress - Where a Court orders
a person convicted of any offence against this Act to pay any fine or other
monies and that person is the
owner or master of a vessel and the fine or other
monies are not paid within the time and manner specified, the Court may, in
addition
to any other power it may have to compel payment and notwithstanding
any other Act, direct the amount remaining unpaid be levied
by distress or sale
of the vessel or the equipment of the vessel, as the case
requires.
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