Marine Legislation Bill - Amendments

POSTED BY Karl Stolberger
Barbara Versfelt
04 December 2012

posted in Shipping | Transport

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THE MARINE LEGISLATION BILL - Amendments to the Maritime Transport Act 1994 (MTA) and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) relating to Limitation of Liability and Pollution.

The Marine Legislation Bill (Bill) was introduced in August 2012. It is presently before the Transport and Industrial Relations Select Committee which is due to report back in March 2013. The changes to the MTA proposed in the Bill are intended to come into force on 1 April 2013. For the text of the Bill, see: http://www.legislation.govt.nz/bill/government/2012/0058/latest/DLM4698452.html

We discuss the following proposed amendments below: 

  • Incorporation of the Convention on Limitation of Liability for Maritime Claims 1976 (Limitation Convention);
  • Adoption of the 1996 Protocol to the Limitation Convention (1996 Protocol);
  • Implementation of the Convention on Civil Liability for Bunker Oil Damage 2001 (Bunkers Convention) in the MTA; and
  • The introduction of further amendments relating to pollution.

The Limitation Convention and the 1996 Protocol

Currently, the Limitation Convention is paraphrased in Part 7 of the MTA in an unsatisfactory and unworkable manner. Under the Bill, Part 7 of MTA will be amended so as to incorporate the Limitation Convention in full and to give it the force of law in New Zealand. This is a welcome and overdue amendment. However, it would appear that the limitation regime in New Zealand will still differ from the position adopted in other countries because of the way in which the Bill seeks to enact the Bunkers Convention. We refer to our summary relating to the Bunkers Convention below.

Article 10 of the Limitation Convention provides that limitation may be invoked without the constitution of a fund, unless the State Party legislates otherwise. The Bill does not provide a requirement that the ship owner constitute a fund in order to entitle it to limitation.

The 1996 Protocol is also incorporated in full as a new schedule to the MTA.  As is common knowledge, this will have the effect of more than doubling the limits available under the Limitation Convention.

Bunkers Convention

The Bill purports to implement the Bunkers Convention. However, it seems that New Zealand is again taking steps which will see it moving down a different path to other signatories.

The Bunkers Convention will be paraphrased in Part 25 of the MTA, entitled "Civil liability for pollution of marine environment”, which also deals with liability of CLC ships for oil pollution.

Whilst the Bunkers Convention provides that nothing in the convention shall affect the right of a ship owner to limit liability under any applicable national or international regime such as the Limitation Convention, the Bill seeks to put in place a regime which requires the ship owner to separately limit its liability for claims for bunker oil pollution, up to the level required under the 1996 Protocol. The proposed new subsection 86(5) of the MTA provides:

"Despite Article 9 of the [Limitation Convention] [aggregation of claims] the limits of liability for claims for pollution damage within the meaning of Article 1 of the Bunker Oil Convention (as that term is defined in section 342) must not be aggregated with other claims that arise on that occasion.”

The explanatory note to the Bill states:

"As a result, bunker oil pollution claims would no longer be required to compete with other marine claims on a general limitation fund established under the Convention on the Limitation of Liability for Marine Claims.”

Not only will the paraphrasing of the Bunkers Convention cause confusion (for example, the definitions used in the Bunkers Convention are not identical to those used in the proposed part 25 of the MTA), but the new legislation will also create uncertainty internationally as to its effect, for example when a limitation decree is sought overseas.

Intervention Protocol

New Zealand will also adopt the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances Other Than Oil (1973).  This protocol extends the International Convention Relating to Intervention on the High Seas in Cases of Pollution Casualties (1969) (Intervention Convention) to allow intervention to prevent, mitigate or eliminate danger to the coastline where hazardous and noxious substances other than oil have been spilled outside the EEZ following a casualty.  Part 20 of the MTA will be extended to cover such incidents.

Dumping and Discharges from Production Facilities and Offshore Installations

The recently passed Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) will be significantly amended to transfer the regulation of discharges from offshore installations and production facilities and the dumping of waste (except in emergencies) from Maritime New Zealand (MNZ) to the Environmental Protection Agency (EPA).  MNZ will retain responsibility for regulating discharges from ships; marine oil spill preparedness, planning and response; and emergency dumping.

Other changes to the EEZ Act will also be made to better ensure consistency with New Zealand’s obligations under MARPOL and the London Dumping Convention.

POSTED BY Karl Stolberger
Barbara Versfelt
04 December 2012

posted in ShippingTransport

VIEWED 7935 TIMES

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