MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION) ORDINANCE ——附加英文版
Hong Kong
MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION) ORDINANCE
(CHAPTER 414)
ARRANGEMENT OF SECTIONS
ion
I PRELIMINARY
hort title
nterpretation
ertificate as to parties to Conventions
alculation of tonnage
II LIABILITY FOR OIL POLLUTION AND COMPULSORY INSURANCE
nterpretation of Part II
iability for oil pollution
xceptions from liability under section 6
estriction of liability for oil pollution
imitation of liability under section 6
Limitation actions
Restriction on enforcement of claims after establishment of
limitation
fund
Concurrent liabilities of owners and others
Establishment of limitation fund outside Hong Kong
Extinguishment of claims under Part II
Compulsory insurance against liability for oil pollution
Issue of certificate by Director
Rights of third parties against insurers
Jurisdiction of Hong Kong courts and registration of foreign
judgments
Warships, etc.
Liability for cost of preventive measures where section 6 does
not
apply
Saving for recourse actions
III THE INTERNATIONAL OIL POLLUTION COMPENSATION FUND
Interpretation of Part III
Contributions to the Fund
Power to obtain information
Liability of the Fund for pollution damage
Indemnification of ship owner where ship registered in Fund
Convention
country
Effect of judgments
Extinguishment of claims under Part III
Subrogation and rights of recourse
IV MISCELLANEOUS
Offences by bodies corporate
Fees
Amendments, Savings and Repeals
dule 1. Overall limit on liability of Fund
dule 2. (Omitted)
rdinance to provide for compensation for pollution caused
by the
harge or escape of oil from oil-carrying ships and for the
liability
hipowners; for compulsory insurance in respect of such liability;
for
ributions by oil importers and others to the International
Fund for
ensation for Oil Pollution Damage; for the liability of the
Fund in
ain circumstances for such pollution; for the
indemnification of
owners by the Fund; and for incidental or related matters.
January 1991] L. N. 13 of 1991
PART I Preliminary
hort title
Ordinance may be cited as the Merchant Shipping
(Liability and
ensation for Oil Pollution) Ordinance.
nterpretation
In this Ordinance, unless the context otherwise requires--
t" includes expenses;
ntry" includes any territory;
rt" means the High Court or a judge thereof;
age" includes loss;
ector" means the Director of Marine;
d Convention" means the International Convention on the
establishment
n International Fund for Compensation for Oil Pollution Damage
opened
signature in Brussels on 18 December 1971;
g Kong ship" means a ship registered in Hong Kong;
bility Convention" means the International Convention
on Civil
ility for Oil Pollution Damage opened for signature in Brussels
on 29
mber 1969;
er", in relation to a ship, means the person or persons registered
as
owner of the ship or, in the absence of registration, the
person or
ons owning the ship, except that in relation to a ship owned
by a
e which is operated by a person registered as the ship's operator,
it
s the person registered as its operator; (Amended 74 of 1990 s.
104
lution damage" means damage caused outside a ship carrying
oil by
amination resulting from the discharge or escape of oil from the
ship,
ever the discharge or escape may occur, and includes the
cost of
entive measures and damage caused by preventive measures;
ventive measures" means any reasonable measures taken by any
person
r a discharge or escape of oil from a ship to prevent or
reduce
ution damage;
p" means any sea-going vessel or seaborne craft of
any type
soever, carrying oil in bulk as cargo;
cial drawing rights" means units of account used by the
International
tary Fund and known as special drawing rights;
minal installation" means any site for the storage of oil in
bulk
h is capable of receiving oil from waterborne
transportation,
uding any facility situated offshore and linked to any such site.
For the purposes of this Ordinance, where more than one
discharge or
pe results from the same occurrence or from a series of
occurrences
ng the same origin, they shall be treated as one; but any
measures
n after the first of them shall be deemed to have been taken after
the
harge or escape.
References in this Ordinance to the area of any country include
the
itorial sea of that country.
ertificate as to parties to Conventions
rtificate signed by the Governor and certifying that a State
specified
he certificate--
is a party to the Liability Convention in respect of a
country
ified in the certificate; or
is a party to the Fund Convention in respect of a country specified
in
certificate,
l be conclusive evidence of the matters contained therein and
shall in
legal proceedings under this Ordinance to which it
relates be
ssible on its production and without further proof.
alculation of tonnage
the purposes of this Ordinance, the tonnage of a ship
shall be
rtained as follows--
where the register tonnage of the ship has been or can be
ascertained
ccordance with the Merchant Shipping (Tonnage) Regulations
(App. I,
, the ship's tonnage shall be the register tonnage of the ship
as so
rtained but without making any deduction required by those
regulations
ny tonnage allowance for propelling machinery space;
where the ship is of a class or description with respect to which
no
ision is for the time being made by the Merchant Shipping
(Tonnage)
lations, the tonnage of the ship shall be taken to be 40%
of the
ht (expressed in tons of 2 240 lbs) of oil which the ship is
capable
arrying;
where the tonnage of the ship can not be ascertained in
accordance
either paragraph (a) or (b), the Director shall, if so directed
by
court in any proceedings, certify what, on the evidence
specified in
direction, would in his opinion be the tonnage of the
ship as
rtained in accordance with paragraph (a) or (b), as the case may
be,
he ship could be duly measured for the purpose; and the tonnage
stated
is certificate shall be taken to be the tonnage of the ship.
PART II LIABILITY FOR OIL POLLUTION AND COMPULSORY INSURANCE
nterpretation of Part II
In this Part--
bility Convention country" means a country in respect of
which the
ility Convention is in force; and
bility Convention State" means a State which is a party
to the
ility Convention.
In relation to any pollution damage resulting from the
discharge or
pe of any oil carried in a ship references in this Part to the
owner
he ship are references to the owner at the time of the
occurrence
lting in the discharge or escape or, if there is more than one
such
rrence, at the time of the first of such occurrences.
References in this Part to the Merchant Shipping Act 1979 (1979
c. 39
.) are references to that Act as it applies in Hong Kong.
iability for oil pollution
Where, as a result of any occurrence taking place while a
ship is
ying a cargo of persistent oil in bulk, any persistent oil carried
by
ship (whether as part of the cargo or otherwise) is
discharged or
pes from the ship, the owner of the ship shall be liable, except
as
rwise provided by this Ordinance, for any pollution damage
caused in
Kong.
Where--
a liability arises under subsection (1); and
the discharge or escape by reason of which the liability arose
also
lts in pollution damage in the area of a Liability Convention
country
r than Hong Kong, the owner of the ship concerned shall also be
liable
r subsection (1) for that damage as if the damage had occurred
in Hong
.
Where persistent oil is discharged or escapes from 2 or more
ships
-
a liability is incurred under this section by the owner of
each of
; but
the pollution damage for which each of the owners would, apart
from
subsection, be liable cannot reasonably be separated from that
for
h the other or others would be liable,
of the owners shall be liable, jointly with the other or others,
for
whole of that damage for which the owners together would be
liable
r this section.
Section 21 of the Law Amendment and Reform (Consolidation)
Ordinance
. 23) shall apply in relation to any pollution damage for
which a
on is liable under this section, but which is not due to his fault,
as
t were due to his fault.
xceptions from liability under section 6
owner of a ship from which persistent oil has been discharged or
has
ped shall not incur any liability under section 6 if he proves
that
discharge or escape--
resulted from an act of war, hostilities, civil war,
insurrection or
xceptional, inevitable and irresistible natural phenomenon; or
was due wholly to anything done or left undone by another person,
not
g a servant or agent of the owner, with intent to do damage; or
was due wholly to the negligence or wrongful act of a
government or
r authority in exercising its function of maintaining lights or
other
gational aids for the maintenance of which it was responsible.
estriction of liability for oil pollution
e, as a result of any occurrence taking place while a ship is
carrying
rgo of persistent oil in bulk, any persistent oil carried by the
ship
ther as part of the cargo or otherwise) is discharged or escapes
then,
her or not the owner incurs a liability under section 6,--
he shall not be liable otherwise than under that section for any
such
ution damage as is mentioned therein; and
no servant or agent of the owner and no person performing
salvage
ations with the agreement of the owner shall be liable for any
such
ge.
imitation of liability under section 6
e the owner of a ship incurs a liability under section 6 by reason
of
scharge or escape which occurred without his actual fault or
privity,
ay limit that liability in accordance with this Ordinance, and
if he
so his liability (that is to say, the aggregate of his
liabilities
r section 6 resulting from the discharge or escape) shall not
exceed--
133 special drawing rights for each ton of the ship's tonnage;
or
14,000,000 special drawing rights, whichever amount is the less.
Limitation actions
Where the owner of a ship has or is alleged to have
incurred a
ility under section 6 he may apply to the court in accordance
with
s of court for the limitation of that liability to
an amount
rmined in accordance with section 9.
If on such an application the court finds that the
applicant has
rred such a liability and is entitled to limit it, the court
shall
rmine the limit of the liability and direct payment into court
of the
nt of that limit, and shall then
determine the amounts that would, apart from the limit, be
due in
ect of the liability to the several persons making claims
in the
eedings under this section; and
direct the distribution of the amount paid into court (or, as the
case
be, so much of it as does not exceed the liability) among
those
ons in proportion to their claims subject to the following
provisions
his section.
A payment into court of the amount of a limit determined under
this
ion shall be made in Hong Kong dollars and--
for the purposes of converting such an amount from special
drawing
ts into Hong Kong dollars the Monetary Authority may certify, in
Hong
dollars, the respective amounts which are to be taken as
equivalent
a particular day to the sums expressed in special drawing
rights in
ion 9;
a certificate signed by or on behalf of the Monetary Authority
under
graph (a) shall be conclusive evidence of the matters
contained
ein and shall in legal proceedings under this Ordinance to
which it
tes be admissible on its production and without further proof.
nded 82 of 1992 s. 44)
No claim shall be made in proceedings under this section except
within
time as the court may direct or such further time as the court
may
w.
Where any sum has been paid in or towards satisfaction of any claim
in
ect of the pollution damage to which the liability referred
to in
ection (1) extends--
by the owner or the person referred to in section 17 as "the
insurer";
by a person who has or is alleged to have incurred a
liability,
rwise than under section 6, for that damage and who is
entitled to
t his liability in connection with the ship by virtue of the
Merchant
ping Act 1979 (1979 c. 39 U. K.), the person who paid the sum
shall,
he extent of that sum, be in the same position with respect to
any
ribution made in proceedings under this section as the person to
whom
as paid would, apart from this subsection, have been,
and the
ribution shall be made accordingly.
Where the owner who incurred the liability referred to in
subsection
has voluntarily made any reasonable sacrifice or taken
any other
onable measures to prevent or reduce pollution damage to
which the
ility extends or might have extended he shall be in the same
position
respect to any distribution made in proceedings under this
section as
e had established a claim in respect of the liability for an
amount
l to the cost of the sacrifice or other measures, and the
distribution
l be made accordingly.
The court may, if it thinks fit, postpone the distribution of
such
of the amount to be distributed as it deems appropriate having
regard
ny claims that may later be established before a court outside
Hong
.
Restriction on enforcement of claims after establishment of
limitation
e the court has found that a person who has incurred a liability
under
ion 6 is entitled to limit that liability to any amount and
he has
into court a sum not less than that amount--
the court shall order the release of any ship or other
property
sted in connection with a claim in respect of that liability or
any
rity given to prevent or obtain release from such an arrest; and
no judgment or decree for any such claim shall be enforced, except
so
as it is for costs,
sum paid into court, or such part thereof as corresponds to the
claim,
be actually available to the claimant or would have been available
to
if the proper steps in the proceedings under section 10
had been
n.
Concurrent liabilities of owners and others
e, as a result of any discharge or escape of persistent oil
from a
, he owner of the ship incurs a liability under section 6 and
any
r person incurs a liability, otherwise than under that section,
for
such pollution damage as is mentioned in subsection (1)
of that
ion, then, if--
the owner has been found, in proceedings under section 10,
to be
tled to limit his liability to any amount and has paid into
court a
not less than that amount; and
the other person is entitled to limit his liability in connection
with
ship by virtue of the Merchant Shipping Act 1979 (1979 c. 39 U.
K.),
roceedings shall be taken against the other person in respect of
his
ility, and if any such proceedings were commenced before the
owner
the sum into court, no further steps shall be taken
in the
eedings except in relation to costs.
Establishment of limitation fund outside Hong Kong
e the events resulting in the liability of any person under
section 6
result in a corresponding liability under the law of a
Liability
ention country other than Hong Kong, sections 11 and 12 shall
apply as
he references to sections 6 and 10 included references
to the
esponding provisions of that law and the references to sums paid
into
t included references to any sums secured under those
provisions in
ect of the liability.
Extinguishment of claims under Part II
ction to enforce a claim in respect of a liability incurred
under
ion 6 shall be brought in any court in Hong Kong unless the action
is
enced not later than 3 years after the claim arose and not later
than
ars after the occurrence or, if there is more than
one such
rrence, the first of such occurrences resulting in the
discharge or
pe by reason of which the liability was incurred.
Compulsory insurance against liability for oil pollution
Subject to section 19, subsection (2) applies to any ship carrying
in
a cargo of more than 2,000 tons of persistent oil as
defined in
lations made under this section.
A ship to which this subsection applies shall not enter or leave--
the waters of Hong Kong; or
if the ship is a Hong Kong ship, a port in any other country
or a
inal installation in the territorial sea of any other country,
unless
e is in force a certificate complying with subsection
(4) and
ifying that there is in force in respect of the ship a
contract of
rance or other security satisfying the requirements of Article
不分页显示 总共3页 1 [2] [3]
下一页
最高人民法院行政审判庭关于部门规章之间规定不一致时应如何对待问题的复函
最高人民法院行政审判庭
最高人民法院行政审判庭关于部门规章之间规定不一致时应如何对待问题的复函
1991年10月16日，最高法院行政审判庭
新疆维吾尔自治区高级人民法院：
你院新法行〔1991〕35号《关于国务院几个部、局制定的有关规章之间不一致的几个问题的请示》收悉。经研究，答复如下：
皮山县供销社不服皮山县税务局行政处罚一案，法院应适用当事人行为发生时生效的法律规范进行处理。从你院请示报告中所反映的该案的基本情况看，1988年3月至5月间皮山县供销社实施转移收购棉花的升溢款的行为时，生效的法律文件只有商业部（1986）商棉字第1号《关于棉花收购、加工盈亏问题的批复》。国家物价局、国家技术监督局〔1988〕价检字743号文件，国家物价局、国家技术监督局、商业部、纺织部（1990）价检字250号文件，国家税务局国税发〔1990〕205号文件当时均未生效。因此，该案不存在国务院几个部、局制定的有关规章之间不一致的问题，请你院依照该案的具体情况自行处理。
此复
附：新疆维吾尔自治区高级人民法院关于国务院几个部、局制定的有关规章之间不一致的几个问题的请示 新法行〔1991〕35号
最高人民法院：
我区和田地区中级法院在审理皮山县供销社不服皮山县税务局行政处罚的案件中，涉及如何处理棉花收购过程中发生的升溢款的问题，国家税务局、商业部和国家物价局、国家技术监督局各自制定的规章对如何处理棉花升溢款的规定不一致，规章之间互相冲突，致使审理该案时不好参照适用。根据《行政诉讼法》第五十三条第二款的规定，现将有关情况报告如下：
一、本案简要案情
1988年3至5月间，皮山县供销社在调拨1987年度棉花时，将1700余担棉花的升溢款计320000余元未记入棉花购销帐，而是用银行托收的方式将这笔款转移到供销社下属的土产公司、榨油厂和棉麻公司3个单位。1989年5月，皮山县进行财务、税务、物价大检查时，查出皮山县供销社隐瞒、转移的320000余元后，皮山县人民政府对该供销社进行了通报批评，并按违纪行为将该款作没收处理，上缴县财政。1989年7月，由和田地委纪检委牵头，地区6个有关部门组成工作组，对皮山县供销社隐瞒、转移320000余元的问题进行了查证，工作组认为供销社的这一行为属于偷税行为。同年8月，皮山县税务局按地区工作组的通知及地区税务局的批示，对皮山县供销社作出补交应纳税款178481．08元，罚款35696．22元的处罚决定。并对直接责任人员该供销社主任张应锁罚款500元，对会计股长何有来罚款250元。皮山县供销社不服税务行政处罚，依税法规定申请复议后，向法院提起诉讼。诉讼期间，检察机关又根据地区工作组的意见将该案作为偷税案件立案侦查（至今尚无处理结果）。
另外，1990年12月，和田地区物价检查所对该地区6县1市的9个棉花经营单位1988年度收购棉花过程中发生的升溢款90万余元，根据国家物价局、国家技术监督局（1988）价检字743号文件和《价格管理条例》的规定，予以没收，上缴地区财政。策勒、洛浦等县税务局对物价检查所的决定提出异议，认为对棉花升溢款的处理应执行国家税务局国税发（1990）205号文件，数家棉花经营单位也要求执行国家税务局的文件，向法院提起诉讼。
二、上述案件涉及的有关规章的内容
上述两类案件的实质是对棉花收购过程中发生的升溢款如何处理的问题，对此，税收法规和物价法规均未作具体规定，而税收规章和物价规章对此问题却各自作了不同的规定，相互冲突。
对棉花升溢款如何处理的问题，作出有关规定的规章有：国家税务局国税发（1990）205号文件；商业部（1986）商棉字第1号批复；国家物价局、国家技术监督局（1988）价检字743号文件和国家物价局、国家技术监督局、商业部、纺织部（1990）价检字250号文件。其主要内容是：
商业部（86）商棉字第1号给河北省供销合作联合社的批复中规定：“对基层检验环节的技术考核，按收购棉花的总金额计算，盈亏相抵后净盈或净亏不能超过0．3％。在规定幅度以内的，视为执行价格政策正常。凡有帐可查、有户可找的升溢部分应退还给棉农，亏损部分也应向棉农收回。升溢部分超过3‰无法退还的部分要挂帐，留待下年抵补亏损用。如果下一年度仍有升溢，应将上年的升溢报告当地政府，作为供销社用于棉花生产的支农资金，不能挪作他用”。
国家物价局、国家技术监督局（1988）价检字743号文件规定：“按收购棉花总金额计算，盈亏相抵后，净盈或净亏的幅度最高不超过5‰。超过允差幅度的净盈金额，应退还给棉农”。“无法退还农民或用户的非法所得，统一由物价检查机构收缴国库”。
国家物价局、国家技术监督局、商业部、纺织部（1990）价检字250号文件规定：“经济盈亏：按收购棉花总金额计算，盈亏相抵后，净盈或净亏的幅度最高不超过3‰。超过以上幅度的，视为抬级、抬秤或压级、压秤收购”。“对压级、压价收购的，应责令其将非法所得退还给棉农，并按国家物价局《关于价格违法行为的处罚规定》第六条、第七条进行处罚。”“无法退还农民、经营单位或用户的非法所得，统一由物价检查机构收缴国库。”
国家税务局国税发（1990）205号文件规定：“对直接从事棉花收购工作的基层收棉站，其棉花收购的溢余收入，如有帐可查有户可找的，应在纳税年度内及时地退还给棉农。在退还棉农之前，应通过帐户如实核算，待退还后再行调帐。如果有些基层收棉站的棉花收购的溢余收入，无法退还给棉农或不退还给棉农的，应全部并入企业的利润照章纳税”，“对县及县以上棉麻企业取得的棉花溢余收入，应全部并入企业利润照章纳税”。
三、规章之间规定不一致的主要问题
（一）对棉花升溢款处理的原则和方法不同
商业部的批复对棉花升溢款只规定应退还给棉农，无法退还的部分要挂帐，留待下年抵补亏损使用，既未规定升溢款应并入企业利润照章纳税，也未规定应作为非法所得收缴国库；国家物价局1988年的规章把棉花经营单位的盈利额限制在5‰以下（1990年的规章为3‰以下），超过部分应退还棉农，无法退还的则视为非法所得，由物价检查机构收缴国库；而国家税务局的规章则规定基层收棉站的棉花收购的溢余收入，无法退还给棉农的，可全部并入企业利润照章纳税，对县及县以上棉麻企业的棉花溢余收入，可全部并入企业利润照章纳税，这实际上把这部分溢余收入变成了企业的合法收入，除纳税外，剩余部分可归企业所有。同样是棉花溢余收入，物价规章规定为非法所得，而税收规章规定可并入企业利润除纳税外，归企业所有，物价规章与税收规章关于对棉花升溢款的处理原则和方法的规定是相互矛盾的。
（二）对棉花经营企业的分类与政策不同
商业部的批复和国家物价局的规章对棉花经营企业未进行分类，其政策是统一的，而税务局的规章则把棉花经营企业分为两类，实行不同的政策；一类是基层收棉站，收购棉花的溢余款可退还棉农，无法退还的可并入企业利润照章纳税；另一类是县以上棉麻企业，棉花溢余收入可全部并入企业利润照章纳税。我区大部分地区是由县棉麻公司直接经营的，基层收棉站仅行使代购职能，无棉花经营权，所以税收规章的这一规定与我区实际情况不符。
（三）税收规章与物价规章实施后的社会效果不同
棉花经营企业都愿意执行税收规章，因为除纳税外，其棉花收购溢余收入的剩余部分可归企业所有，变为合法收入；棉花经营企业不愿意执行物价规章，因为该规章规定无法退还给棉农的溢余收入为非法所得，要由物价检查机构收缴国库。
四、关于规章的效力问题
商业部1986年的批复在1988年度内是否仍然有效，如果有效，对棉花升溢款的处理是应适用商业部的批复精神，还是应适用国家物价局、国家技术监督局的（1988）价检字743号文件的规定？国家税务局1990年的规定对1988年发生并已作出行政处理的棉花收购升溢款的处理是否具有溯及力？
由于国家税务局的规章和国家物价局的规章对棉花收购中发生的升溢款的处理原则和方法的规定相互矛盾，这就给因棉花升溢款而形成的税务行政案件和物价行政案件的审理增加了困难，在审理这两类案件中无法参照适用有关规章，而有关法规对此问题又未作具体规定，所以报请最高人民法院对上述问题给予解答或依法送请国务院裁决，以作出统一的规定。
以上请示请批复。
1991年8月19日
