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修正1971年设立国际油污损害赔偿基金国际公约的1984年议定书(一)

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修正1971年设立国际油污损害赔偿基金国际公约的1984年议定书
PROTOCOL OF 1984 TO AMEND THE INTERNATIONAL CONVENTION ON THEESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTIONDAMAGE, 1971

颁布日期:19840525  颁布单位:伦敦

  THE STATES PARTIES TO THE PRESENT PROTOCOL,

  CONSIDERING that it is desirable to amend the International Conventionon the Establishment of an International Fund for Compensation for OilPollution Damage, done at Brussels on 18 December 1971, to provide forimproved scope and enhanced compensation.

  RECOGNIZING the advantage for the States Parties of arranging for theamended Convention to coexist with and be supplementary to the originalConvention for a transitional period,

  CONVINCED that the economic consequences of pollution damage resultingfrom the carriage of oil in bulk at sea by ships should continue to beshared by the shipping industry and by the oil cargo interests,

  BEARING in mind the adoption of the Protocol of 1984 to amend theInternational Convention on Civil Liability for Oil Pollution Damage,1969,

  HAVE AGREED as follows:Article 1

  The Convention which the provisions of this Protocol amend is theInternational Convention on the Establishment of an International Fund forCompensation for Oil Pollution Damage, 1971, hereinafter referred to asthe “1971 Fund Convention”。 For States Party to the Protocol of 1976 tothe 1971 Fund Convention, such reference shall be deemed to include the1971 Fund Convention as amended by that Protocol.Article 2

  Article 1 of the 1971 Fund Convention is amended as follows:

  1. Paragraph 1 is replaced by the following text:

  1. “1984 Liability Convention” means the International Conventionon Civil Liability for Oil Pollution Damage, 1984.

  2. After paragraph 1 a new paragraph is inserted as follows:

  1. bis “1971 Fund Convention” means the International Conventionon the Establishment of an International Fund for Compensation for OilPollution Damage, 1971. For Parties to the Protocol of 1976 to thatConvention, the term shall be deemed to include the 1971 Fund Conventionas amended by that Protocol.

  3. Paragraph 2 is replaced by the following text:

  2. “Ship”, “Person”, “Owner”, “Oil”, “Pollution Damage”,“Preventive Measures”, “Incident”, and “Organization” have the samemeaning as in Article I of the 1984 Liability Convention.

  4. Paragraph 4 is replaced by the following text:

  4. “Unit of account” has the same meaning as in Article V,paragraph 9, of the 1984 Liability Convention.

  5. Paragraph 5 is replaced by the following text:

  5. “Ship's tonnage” has the same meaning as in Article V,paragraph 10, of the 1984 Liability Convention.

  6. Paragraph 7 is replaced by the following text:

  7. “Guarantor” means any person providing insurance or otherfinancial security to cover an owner's liability in pursuance of ArticleVII, paragraph 1, of the 1984 Liability Convention.Article 3

  Article 2 of the 1971 Fund Convention is amended as follows:

  Paragraph 1 is replaced by the following text:

  1. An International Fund for compensation for pollution damage, tobe named “The International Oil Pollution Compensation Fund 1984” andhereinafter referred to as “the Fund” is hereby established with thefollowing aims:

  (a) to provide compensation for pollution damage to the extentthat the protection afforded by the 1984 Liability Convention isinadequate;

  (b) to give effect to the related purposes set out in thisConvention.Article 4

  Article 3 of this 1971 Fund Convention is replaced by the followingtext:

  This Convention shall apply exclusively:

  (a) to pollution damage caused:

  (i) in the territory, including the territorial sea, of aContracting State, and

  (ii) in the exclusive economic zone of a ContractingState, established in accordance with international law, or, if aContracting State has not established such a zone, in an area beyond andadjacent to the territorial sea of that State determined by that State inaccordance with international law and extending not more than 200 nauticalmiles from the baselines from which the breadth of its territorial sea ismeasured;

  (b) to preventive measures, wherever taken, to prevent orminimize such damage.Article 5

  The heading to Articles 4 to 9 of the 1971 Fund Convention is amendedby deleting the words “and indemnification”。Article 6

  Article 4 of the 1971 Fund Convention is amended as follows:

  1. In paragraph 1 the five references to “the Liability Convention”are replaced by references to “the 1984 Liability Convention”。

  2. Paragraph 3 is replaced by the following text:

  3. If the Fund proves that the pollution damage resulted wholly orpartially either from an act or omission done with the intent to causedamage by the person who suffered the damage or from the negligence ofthat person, the Fund may be exonerated wholly or partially from itsobligation to pay compensation to such person. The Fund shall in any eventbe exonerated to the extent that the shipowner may have been exoneratedunder Article III, paragraph 3, of the 1984 Liability Convention. However,there shall be no such exoneration of the Fund with regard to preventivemeasures.

  3. Paragraph 4 is replaced by the following text:

  4. (a) Except as otherwise provided in subparagraphs (b) and (c)of this paragraph, the aggregate amount of compensation payable by theFund under this Article shall in respect of any one incident be limited,so that the total sum of that amount and the amount of compensationactually paid under the 1984 Liability Convention for pollution damagewithin the scope of application of this Convention as defined in Article 3shall not exceed 135 million units of account.

  (b) Except as otherwise provided in subparagraph (c), theaggregate amount of compensation payable by the Fund under this Articlefor pollution damage resulting from a natural phenomenon of anexceptional, inevitable and irresistible character shall not exceed 135million units of account.

  (c) The maximum amount of compensation referred to insubparagraphs (a) and (b) shall be 200 million units of account withrespect to any incident occurring during any period when there are threeParties to this Convention in respect of which the combined relevantquantity of contributing oil received by persons in the territories ofsuch Parties, during the preceding calendar year, equalled or exceeded 600million tons.

  (d) Interest accrued on a fund constituted in accordance withArticle V, paragraph 3, of the 1984 Liability Convention, if any, shallnot be taken into account for the computation of the maximum compensationpayable by the Fund under this Article.

  (e) The amounts mentioned in this Article shall be convertedinto national currency on the basis of the value of that currency byreference to the Special Drawing Right on the date of the decision of theAssembly of the Fund as to the first date of payment of compensation.

  4. paragraph 5 is replaced by the following text:

  5. Where the amount of established claims against the Fund exceedsthe aggregate amount of compensation payable under paragraph 4, the amountavailable shall be distributed in such a manner that the proportionbetween any established claim and the amount of compensation actuallyrecovered by the claimant under this Convention shall be the same for allclaimants.

  5. Paragraph 6 is replaced by the following text:

  6. The Assembly of the Fund may decide that, in exceptional cases,compensation in accordance with this Convention can be paid even if theowner of the ship has not constituted a fund in accordance with Article V,paragraph 3, of the 1984 Liability Convention. In such case paragraph 4(e)of this Article applies accordingly.Article 7

  Article 5 of the 1971 Fund Convention is deleted.Article 8

  Article 6 of the 1971 Fund Convention is amended as follows:

  1. In paragraph 1 the paragraph number and the words “orindemnification under Article 5” are deleted.

  2. Paragraph 2 is deleted.Article 9

  Article 7 of the 1971 Fund Convention is amended as follows:

  1. In paragraph 1, 3, 4 and 9 the seven references to “theLiability Convention” are replaced by references to “the 1984 LiabilityConvention”。

  2. In paragraph 1 the words “or indemnification under Article 5”are deleted.

  3. In the first sentence of paragraph 3 the words “orindemnification” and “or 5” are deleted.

  4. In the second sentence of paragraph 3 the words “or underArticle 5, paragraph 1, ” are deleted.Article 10

  In Article 8 of the 1971 Fund Convention the reference to “theLiability Convention” is replaced by a reference to “the 1984 LiabilityConvention”。Article 11

  Article 9 of the 1971 Fund Convention is amended as follows:

  1. Paragraph 1 is replaced by the following text:

  1. The Fund shall, in respect of any amount of compensationfor pollution damage paid by the Fund in accordance with Article 4,paragraph 1, of this Convention, acquire by subrogation the rights thatthe person so compensated may enjoy under the 1984 Liability Conventionagainst the owner or his guarantor.

  2. In paragraph 2 the word “or indemnification” are deleted.Article 12

  Article 10 of the 1971 Fund Convention is amended as follows:

  The opening phrase of paragraph 1 is replaced by the followingtext:

  Annual contributions to the Fund shall be made in respect of eachContracting State by any person who, in the calendar year referred to inArticle 12, paragraphs 2(a) or (b), has received in total quantitiesexceeding 150,000 tons.Article 13

  Article 11 of the 1971 Fund Convention is deleted.Article 14

  Article 12 of the 1971 Fund Convention is amended as follows:

  1. In the opening phrase of paragraph 1 the words “for each personreferred to in Article 10” are deleted.

  2. In paragraph 1(i), subparagraphs (b) and (c), the words “or 5” aredeleted and the words “15 million francs” are replaced by the words “fourmillion units of account”。

  3. The opening phrase in paragraph 2 is replaced by the followingtext:

  The Assembly shall decide the total amount of contributions to belevied. On the basis of that decision, the Director shall, in respect ofeach Contracting State, calculate for each person referred to in Article10 the amount of his annual contribution:

  4. Paragraph 4 is replaced by the following text:

  4. The annual contribution shall be due on the date to be laiddown in the Internal Regulations of the Fund. The Assembly may decide on adifferent date of payment.

  5. Paragraph 5 is replaced by the following text:

  5. The Assembly may decide, under conditions to be laid down inthe Financial Regulations of the Fund, to make transfers between fundsreceived in accordance with Article 12.2 (a) and funds received inaccordance with Article 12.2 (b)。

  6. Paragraph 6 is deleted.Article 15

  Article 13 of the 1971 Fund Convention is amended as follows:

  1. Paragraph 1 is replaced by the following text:

  1. The amount of any contribution due under Article 12 and whichis in arrears shall bear interest at a rate which shall be determined inaccordance with the Internal Regulations of the Fund, provided thatdifferent rates may be fixed for different circumstances.

  2. In paragraph 3 the words “Article 10 and 11” are replaced by thewords “Articles 10 and 12” and the words “for a period exceeding threemonths” are deleted.Article 16

  A new paragraph 4 is added to Article 15 of the 1971 Fund Convention:

  4. Where a Contracting State does not fulfil its obligations tosubmit to the Director the communication referred to in paragraph 2 andthis results in a financial loss for the Fund, that Contracting Stateshall be liable to compensate the Fund for such loss. The Assembly shall,on the recommendation of the Director, decide whether such compensationshall be payable by a Contracting State.Article 17

  Article 16 of the 1971 Fund Convention is replaced by the followingtext:

  The Fund shall have an Assembly and a Secretariat headed by aDirector.Article 18

  Article 18 of the 1971 Fund Convention is amended as follows:

  1. Paragraph 8 is deleted.

  2. Paragraph 9 is replaced by the following text:

  9. to establish any temporary or permanent subsidiary body it mayconsider to be necessary, to define its terms of reference and to give itthe authority needed to perform the functions entrusted to it; whenappointing the members of such body, the Assembly shall endeavour tosecure an equitable geographical distribution of members and to ensurethat the Contracting State, in respect of which the largest quantities ofcontributing oil are being received, are appropriately represented; theRules of Procedure of the Assembly may be applied, mutatis mutandis, forthe work of such subsidiary body;

  3. In paragraph 10, the words, “the Executive Committee” are deleted.

  4. In paragraph 11, the words, “the Executive Committee” are deleted.

  5. Paragraph 12 is deleted.Article 19

  Article 19 of the 1971 Fund Convention is amended as follows:

  1. Paragraph 1 is replaced by the following text:

  1. Regular sessions of the Assembly shall take place once everycalendar year upon convocation by the Director.

  2. In paragraph 2 the words “of the Executive Committee or” aredeleted.Article 20

  Article 21 to 27 of the 1971 Fund Convention and the heading to theseArticles are deleted.Article 21

  Article 29 of the 1971 Fund Convention is amended as follows:

  1. Paragraph 1 is replaced by the following text:

  1. The Director shall be the chief administrative officer of theFund. Subject to the instructions given to him by the Assembly, he shallperform those functions which are assigned to him by this Convention, theInternal Regulations of the Fund and the Assembly.

  2. In paragraph 2(e) the words “or the Executive Committee” aredeleted.

  3. In paragraph 2(f) the words “or to the Executive Committee, as thecase may be, ” are deleted.

  4. Paragraph 2(g) is replaced by the following text:

  (g) prepare, in consultation with the Chairman of the Assembly,and publish a report of the activities of the Fund during the previouscalendar year.

  5. In paragraph 2(h) the words, “the Executive Committee” are deleted.Article 22

  In Article 31, paragraph 1, of the 1971 Fund Convention, the words “onthe Executive Committee and” are deleted.Article 23

  Article 32 of the 1971 Fund Convention is amended as follows:

  1. In the opening phrase the words “and the Executive Committee” aredeleted.

  2. In subparagraph (b) the words “and the Executive Committee” aredeleted.Article 24

  Article 33 of the 1971 Fund Convention is amended as follows:

  1. Paragraph 1 is deleted.

  2. In paragraph 2 the paragraph number is deleted.

  3. Subparagraph (c) is replaced by the following text:

  (c) the establishment of subsidiary bodies, under Article 18,paragraph 9, and matters relating to such establishment.Article 25

  Article 35 of the 1971 Fund Convention is replaced by the followingtext:

  Claims for compensation under Article 4 arising from incidentsoccurring after the date of entry into force of this Convention may not bebrought against the Fund earlier than the one hundred and twentieth dayafter that date.Article 26

  After Article 36 of the 1971 Fund Convention three new Articles areinserted as follows:Article 36 bis

  The following transitional provisions shall apply in the period,hereinafter referred to as the transitional period, commencing with thedate of entry into force of this Convention and ending with the date onwhich the denunciations provided for in Article 31 of the Protocol of 1984to the 1971 Fund Convention take effect:

  (a) In the application of paragraph 1(a) of Article 2 of thisConvention, the reference to the 1984 Liability Convention shall includereference to the International Convention on Civil Liability for OilPollution Damage, 1969 either in its original version or as amended by theProtocol thereto of 1976 (referred to in this Article as “the 1969Liability Convention”), and also the 1971 Fund Convention.

  (b) Where an incident has caused pollution damage within the scopeof this Convention, the Fund shall pay compensation to any personsuffering pollution damage only if, and to the extent that, such personhas been unable to obtain full and adequate compensation for the damageunder the terms of the 1969 Liability Convention, the 1971 FundConvention, and the 1984 Liability Convention, provided that, in respectof pollution damage within the scope of this Convention in respect of aParty to this Convention but not a Party to the 1971 Fund Convention, theFund shall pay compensation to any person suffering pollution damage onlyif, and to the extent that, such person would have been unable to obtainfull and adequate compensation had that State been party to each of theabove mentioned Conventions.

  (c) In the application of Article 4 of this Convention the amountto be taken into account in determining the aggregate amount ofcompensation payable by the Fund shall also include the amount ofcompensation actually paid under the 1969 Liability Convention, if any,and the amount of compensation actually paid or deemed to have been paidunder the 1971 Fund Convention.

  (d) Paragraph 1 of Article 9 of this Convention shall also applyto the rights enjoyed under the 1969 Liability Convention.Article 36 ter

  Notwithstanding the provisions of this Convention, the followingprovisions shall apply to the administration of the Fund during the periodin which both the 1971 Fund Convention and this Convention are in force:

  (a) The Secretariat of the Fund, established by the 1971 FundConvention (hereinafter referred to as “the 1971 Fund”), headed by theDirector, may also function as the secretariat and the Director of theFund.

  (b) If, in accordance with subparagraph (a) the Secretariat andthe Director of the 1971 Fund also perform the function of Secretariat andDirector of the Fund, the Fund shall be represented, in cases of conflictof interests between the 1971 Fund and the Fund, by the Chairman of theAssembly of the Fund.

  (c) The Director and the staff and experts appointed by him,performing their duties under this Convention and the 1971 FundConvention, shall not be regarded as contravening the provisions ofArticle 30 of this Convention in so far as they discharge their duties inaccordance with this Article.

  (d) The Assembly of the Fund shall endeavour not to take decisionswhich are incompatible with decisions taken by the Assembly of the 1971Fund. If differences of opinion with respect to common administrativeissues arise, the Assembly of the Fund shall try to reach a consensus withthe Assembly of the 1971 Fund, in a spirit of mutual co-operation and withthe common aims of both Organizations in mind.

  (e) The Fund may succeed to the rights, obligations and assets ofthe 1971 Fund if the Assembly of the 1971 Fund so decides, in accordancewith Article 44, paragraph 2, of the 1971 Fund Convention.

  (f) The Fund shall reimburse to the 1971 Fund all costs andexpenses arising from administrative services performed by the 1971 Fundon behalf of the Fund.Article 36 quater

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