Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992
Date: 1992-11-27
Institutions: European Union, United Nations Organisation
Subjects: Austria, Luxembourg, accession to an agreement, help for victims, indemnification, international convention, oil pollution

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ANNEX II

Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage 1969

THE PARTIES TO THE PRESENT PROTOCOL,

HAVING CONSIDERED the International Convention of Civil Liability for Oil Pollution Damage, 1969, and the 1984
Protocol thereto,

HAVING NOTED that the 1984 Protocol to that Convention, which provides for improved scope and enhanced
compensation, has not entered into force,

AFFIRMING the importance of maintaining the viability of the international oil pollution liability and compensation
system,

AWARE OF the need to ensure the entry into force of the content of the 1984 Protocol as soon as possible,

RECOGNISING that special provisions are necessary in connection with the introduction of corresponding amendments
to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution
Damage, 1971,

HAVE AGREED AS FOLLOWS:

Article 1

3. paragraph 6 is replaced by the following:

The Convention which the provisions of this Protocol amend is
the International Convention on Civil Liability for Oil Pollution
Damage, 1969, hereinafter referred to as the ‘1969 Liability
Convention’. For States Parties to the Protocol of 1976 to the
1969 Liability Convention, such reference shall be deemed to
include the 1969 Liability Convention as amended by that
Protocol.

Article 2

Article I of
follows:

the 1969 Liability Convention is amended as

1. paragraph 1 is replaced by the following:

“Ship” means any sea-going vessel and seaborne craft
‘1.
of any type whatsoever constructed or adapted for the
carriage of oil in bulk as cargo, provided that a ship capable
of carrying oil and other cargoes shall be regarded as a ship
only when it is actually carrying oil in bulk as cargo and
is
during any voyage following such carriage unless it
proved that it has no residues of such carriage of oil in bulk
aboard.’;

2. paragraph 5 is replaced by the following:

‘5.
“Oil” means any persistent hydrocarbon mineral oil
such as crude oil, fuel oil, heavy diesel oil and lubricating
oil, whether carried on board a ship as cargo or in the
bunkers of such a ship.’;

‘6.

“Pollution damage” means:

(a) loss or damage caused outside the ship by contamina-
tion resulting from the escape or discharge of oil from
the ship, wherever such escape or discharge may occur,
the
provided that compensation for
environment other than loss of profit from such impair-
ment shall be limited to costs of reasonable measures of
reinstatement actually undertaken or to be undertaken;

impairment of

(b) the costs of preventive measures and further loss or

damage caused by preventive measures.’;

4. paragraph 8 is replaced by the following:

‘8.
“Incident” means any occurrence, or series of occur-
rences having the same origin, which causes pollution
damage or creates a grave and imminent threat of causing
such damage.’;

5. paragraph 9 is replaced by the following:

“Organisation” means

‘9.
Organisation.’;

the

International Maritime

6. after paragraph 9 a new paragraph is inserted reading as

follows:

‘10.
“1969 Liability Convention” means the International
Convention of Civil Liability for Oil Pollution Damage,
1969. For States Parties to the Protocol of 1976 to that
Convention, the term shall be deemed to include the 1969
Liability Convention as amended by that Protocol.’

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Article 3

(d) any person performing salvage operations with the
consent of the owner or on the instructions of a compe-
tent public authority;

Article II of the 1969 Liability Convention is replaced by the
following:

(e) any person taking preventive measures;

‘Article II

This Convention shall apply exclusively:

(a) to pollution damage caused:

(i) in the territory,

including the territorial sea, of a

Contracting State, and

(ii) in the exclusive economic zone of a Contracting
State, established in accordance with international
law, or, if a Contracting State has not established
such a zone, in an area beyond and adjacent to the
territorial sea of that State determined by that State
in accordance with international law and extending
not more than 200 nautical miles from the base-
lines from which the breadth of its territorial sea is
measured;

(b) to preventive measures, wherever taken, to prevent or

minimise such damage.’

Article 4

Article III of the 1969 Liability Convention is amended as
follows:

1. paragraph 1 is replaced by the following:

‘1.
Except as provided in paragraphs 2 and 3 of this
Article, the owner of a ship at the time of an incident, or,
where the incident consists of a series of occurrences, at the
time of the first such occurrence, shall be liable for any
pollution damage caused by the ship as a result of the inci-
dent.’;

2. paragraph 4 is replaced by the following:

‘4.
No claim for compensation for pollution damage may
be made against the owner otherwise than in accordance
with this Convention. Subject to paragraph 5 of this Article,
no claim for compensation for pollution damage under this
Convention or otherwise may be made against:

(a) the servants or agents of the owner or the 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 bare-

boat charterer), manager or operator of the ship;

(f) all servants 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.’

Article 5

Article IV of the 1969 Liability Convention is replaced by the
following:

‘Article IV

When an incident involving two or more ships occurs and
pollution damage results therefrom, the owners of all the
ships concerned, unless exonerated under Article III, shall
be jointly and severally liable for all such damage which is
not reasonably separable.’

Article 6

Article V of the 1969 Liability Convention is amended as
follows:

1. paragraph 1 is replaced by the following:

‘1.
The owner of a ship shall be entitled to limit his liabi-
lity under this Convention in respect of any one incident to
an aggregate amount calculated as follows:

(a) 3 000 000 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 addi-
tion to the amount mentioned in subparagraph (a);
provided, however, that this aggregate amount shall not
in any event exceed 59 700 000 units of account.’;

2. paragraph 2 is replaced by the following:

‘2.
The owner shall not be entitled to limit his liability
under this Convention if it is proved that the pollution
damage
resulted from his personal act or omission,
committed with the intent to cause such damage, or reck-
lessly and with knowledge that such damage would prob-
ably result.’;

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3. paragraph 3 is replaced by the following:

‘3.
For the purpose of availing himself of the benefit of
limitation provided for in paragraph 1 of this Article 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 or,
if no action is
brought, with any Court or other competent authority in
any one of the Contracting States in which an action can be
brought under Article IX. The fund can be constituted either
by depositing the sum or by producing a bank guarantee or
other guarantee, acceptable under the legislation of
the
Contracting State where the fund is constituted, and consid-
ered to be adequate by the Court or other competent
authority.’;

4. paragraph 9 is replaced by the following:

‘9.

(a) The “unit of account” referred to in paragraph 1 of
this Article is the Special Drawing Right as defined
by the International Monetary Fund. The amounts
mentioned in paragraph 1 shall be converted into
national 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 paragraph 3. The value of
the national
currency, in terms of the Special Drawing Right, of a
Contracting State which is a member of the Interna-
tional Monetary Fund shall be calculated in accord-
ance with the method of valuation applied by the
International Monetary Fund in effect on the date in
question for its operations and transactions. The
value of
the
Special Drawing Right, of a Contracting State which
is not a member of the International Monetary Fund
shall be calculated in a manner determined by that
State.

the national currency,

in terms of

(b) Nevertheless, a Contracting State which is not a
member of
the International Monetary Fund and
whose law does not permit the application of the
provisions of paragraph 9(a) may, at the time of rati-
fication, acceptance, approval of or accession to this
Convention or at any time thereafter, declare that
the unit of account referred to in paragraph 9(a)
shall be equal to 15 gold francs. The gold franc
referred to in this paragraph corresponds to sixty-
five and a half milligrammes of gold of millesimal
fineness nine hundred. The conversion of the gold
franc into the national currency shall be made
according to the law of the State concerned.

(c) The calculation mentioned in the last sentence of
paragraph 9(a) and the conversion mentioned in
paragraph 9(b) shall be made in such manner as to
express in the national currency of the Contracting
State as far as possible the same real value for the
amounts in paragraph 1 as would result from the
application of the first three sentences of paragraph
9(a).

Contracting States shall communicate to the deposi-
tary the manner of calculation pursuant to para-
graph 9(a), or the result of the conversion in para-
graph 9(b) as the case may be, when depositing an
instrument of ratification, acceptance, approval of or
accession to this Convention and whenever there is
a change in either.’;

5. paragraph 10 is replaced by the following:

‘10.
For the purpose of this Article the ships tonnage
shall be the gross tonnage calculated in accordance with the
tonnage measurement regulations contained in Annex I of
the International Convention on Tonnage Measurement of
Ships, 1969.’;

6. the second sentence of paragraph 11 is replaced by the

following text:

‘Such a fund may be constituted even if, under the provi-
sions of paragraph 2, 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.’

Article 7

Article VII of the 1969 Liability Convention is amended as
follows:

1. the first two sentences of paragraph 2 are replaced by the

following:

‘A certificate attesting that
insurance or other financial
security is in force in accordance with the provisions of this
Convention shall be issued to each ship after the appropriate
authority of a Contracting State has determined that the
requirements of paragraph 1 have been complied with.

With respect to a ship registered in a Contracting State such
certificate shall be issued or certified by the appropriate
authority of the State of the ship's registry; with respect to
at ship not registered in a Contracting State it may be issued
or certified by the appropriate authority of any Contracting
State.’;

2. paragraph 4 is replaced by the following:

The certificate shall be carried on board the ship and
‘4.
a copy shall be deposited with the authorities who keep the
record of the ship's registry or, if the ship is not registered
in a Contracting State, with the authorities of the State
issuing or certifying the certificate.’;

3. the first
following:

sentence of paragraph 7 is

replaced by the

‘Certificates issued or certified under the authority of a
Contracting State in accordance with paragraph 2 shall be
accepted by other Contracting States for the purposes of
this Convention and shall be regarded by other Contracting
States as having the same force as certificates issued or certi-
fied by them even if issued or certified in respect of a ship
not registered in a Contracting State.’;

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4.

in the second sentence of paragraph 7 ‘with the State of a
ship's registry’ is replaced by ‘with the issuing or certifying
State’;

5. the second sentence of paragraph 8 is replaced by the

following:

‘In such case the defendant may, even if the owner is not
entitled to limit his liability according to Article V(2), avail
himself of the limits of liability prescribed in Article V(1).’

(c) in the application of Article III, Paragraph 4, of this
Convention the expression “this Convention” shall be
interpreted as referring to this Convention or the 1969
Liability Convention, as appropriate;

(d) in the application of Article V, paragraph 3, of this
Convention the total sum of the fund to be constituted
shall be reduced by the amount by which liability has
been deemed to be discharged in accordance with sub-
paragraph (a) of this Article.

Article 8

Article XIIb

Final clauses

Article IX of the 1969 Liability Convention is amended as
follows:

paragraph 1 is replaced by the following:

‘1. Where an incident has caused pollution damage in
the territory, including the territorial sea or an area referred
to in Article II, of one or more Contracting States or
preventive measures have been taken to prevent or mini-
mize pollution damage in such territory including the terri-
torial sea or area, actions for compensation may only be
brought in the Courts of any such Contracting State or
States. Reasonable notice of any such action shall be given
to the defendant.’

Article 9

After Article XII of the 1969 Liability Convention two new
Articles are inserted as follows:

‘Article XIIa

Transitional provisions

The following transitional provisions shall apply in the case
of a State which at the time of an incident is a Party both
to this Convention and to the 1969 Liability Convention:

(a) where an incident has caused pollution damage within
the scope of
this
this Convention,
Convention shall be deemed to be discharged if, and to
the extent that, it also arises under the 1969 Liability
Convention;

liability under

(b) where an incident has caused pollution damage within
the scope of this Convention, and the State is a Party
both to this Convention and to the International
Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage,
1971,
liability remaining to be discharged after the
application of subparagraph (a) of this Article shall
arise under this Convention only to the extent that
pollution damage remains uncompensated after appli-
cation of the said 1971 Convention;

The final clauses of this Convention shall be Articles 12 to
18 of the Protocol of 1992 to amend the 1969 Liability
Convention. References in this Convention to Contracting
States shall be taken to mean references to the Contracting
States of that Protocol.’

Article 10

The model of a certificate annexed to the 1969 Liability
Convention is replaced by the model annexed to this Protocol.

Article 11

1.
The 1969 Liability Convention and this Protocol shall, as
between the Parties to this Protocol, be read and interpreted
together as one single instrument.

2.
Articles I to XII ter, including the model certificate, of the
1969 Liability Convention as amended by this Protocol shall be
known as the International Convention on Civil Liability for
Oil Pollution Damage, 1992 (1992 Liability Convention).

FINAL CLAUSES

Article 12

Signature, ratification, acceptance, approval and accession

This Protocol shall be open for signature at London from

1.
15 January 1993 to 14 January 1994 by all States.

Subject to paragraph 4, any State may become a Party to

2.
this Protocol by:

(a) signature subject

to ratification, acceptance or approval

followed by ratification, acceptance or approval; or

(b) accession.

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Ratification, acceptance, approval or accession shall be
3.
effected by the deposit of a formal instrument to that effect
with the Secretary-General of the Organisation.

4.
Any Contracting State to the International Convention on
the Establishment of an International Fund for Compensation
for Oil Pollution Damage, 1971, hereinafter referred to as the
1971 Fund Convention, may ratify, accept, approve or accede
to this Protocol only if it ratifies, accepts, approves or accedes
to the Protocol of 1992 to amend that Convention at the same
time, unless it denounces the 1971 Fund Convention to take
effect on the date when this Protocol enters into force for that
State.

5.
A State which is a Party to this protocol but not a Party
to the 1969 Liability Convention shall be bound by the provi-
sions of the 1969 Liability Convention as amended by this
Protocol in relation to other States Parties hereto, but shall not
be bound by the provisions of the 1969 Liability Convention
in relation to States Parties thereto.

6.
Any instrument of ratification, acceptance, approval or
accession deposited after the entry into force of an amendment
to the 1969 Liability Convention as amended by this Protocol
shall be deemed to apply to the Convention so amended, as
modified by such amendment.

the Organization. Any such withdrawal shall take effect on the
date the notification is received, provided that such State shall
be deemed to have deposited its instrument of ratification,
acceptance, approval or accession in respect of this Protocol on
that date.

4.
For any State which ratifies, accepts, approves or accedes
to it after the conditions in paragraph 1 for entry into force
have been met, this Protocol shall enter into force 12 months
following the date of deposit by such State of the appropriate
instrument.

Article 14

Revision and amendment

1.
A Conference for the purpose of revising or amending
the 1992 Liability Convention may be convened by the Organi-
sation.

The Organisation shall

2.
a Conference of
Contracting States for the purpose of revising or amending the
1992 Liability Convention at the request of not less than one
third of the Contracting States.

convene

Article 13

Entry into force

Article 15

Amendments of limitation amounts

This Protocol shall enter into force 12 months following
1.
the date on which 10 States including four States each with
not less than 1 000 000 units of gross tanker tonnage have
deposited instruments of ratification, acceptance, approval or
accession with the Secretary-General of the Organisation.

least one quarter of

Upon the request of at

1.
the
Contracting States any proposal to amend the limits of liability
laid down in Article V(1) of the 1969 Liability Convention as
amended by this Protocol shall be circulated by the Secretary-
General
the Organisation and to all
Contracting States.

to all Members of

2.
However, any Contracting State to the 1971 Fund
Convention may, at the time of the deposit of its instrument of
ratification, acceptance, approval or accession in respect of this
Protocol, declare that such instrument shall be deemed not to
be effective for the purposes of this Article until the end of the
six-month period in Article 31 of the Protocol of 1992 to
amend the 1971 Fund Convention. A State which is not a
Contracting State to the 1971 Fund Convention but which
deposits an instrument of ratification, acceptance, approval or
accession in respect of the Protocol of 1992 to amend the
1971 Fund Convention may also make a declaration in accord-
ance with this paragraph at the same time.

3.
Any State which has made a declaration in accordance
with the preceding paragraph may withdraw it at any time by
means of a notification addressed to the Secretary-General of

2.
Any amendment proposed and circulated as above shall
be submitted to the Legal Committee of the Organization for
consideration at a date at least six months after the date of its
circulation.

3.
All Contracting States to the 1969 Liability Convention
as amended by this Protocol, whether or not Members of the
Organisation, shall be entitled to participate in the proceeding
of the Legal Committee for the consideration and adoption of
amendments.

4.
Amendments shall be adopted by a two-thirds majority of
the Contracting States present and voting in the Legal
Committee, expanded as provided for in paragraph 3, on
condition that at least one half of the Contracting States shall
be present at the time of voting.

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5. When acting on a proposal to amend the limits, the Legal
Committee shall take into account the experience of incidents
and in particular the amount of damage resulting therefrom,
changes in the monetary values and the effect of the proposed
amendment on the cost of insurance. It shall also take into
account the relationship between the limits in Article V(1) of
the 1969 Liability Convention as amended by this Protocol and
those in Article 4(4), of the International Convention on the
Establishment of an International Fund for Compensation for
Oil Pollution Damage, 1992.

accepted in accordance with paragraph 7. In the case referred
to in this paragraph, a State becomes bound by an amendment
when that amendment enters into force, or when this Protocol
enters into force for that State, if later.

Article 16

Denunciation

6.

(a) No amendment of

liability under this
the limits of
Article may be considered before 15 January 1998 nor
less than five years from the date of entry into force of a
previous amendment under this Article. No amendment
under
this Article shall be considered before this
Protocol has entered into force.

This Protocol may be denounced by any Party at any time

1.
after the date on which it enters into force for that Party.

Denunciation shall be effected by the deposit of an instru-

2.
ment with the Secretary-General of the Organisation.

(b) No limit may be increased so as to exceed an amount
which corresponds to the limit laid down in the 1969
Liability Convention as amended by this Protocol
increased by 6 % per year calculated on a compound
basis from 15 January 1993.

A denunciation shall

3.
take effect 12 months, or such
longer period as may be specified in the instrument of denun-
ciation, after its deposit with the Secretary-General of the Orga-
nisation.

(c) No limit may be increased so as to exceed an amount
which corresponds to the limit laid down in the 1969
Liability Convention as amended by this Protocol multi-
plied by three.

7.
Any amendment adopted in accordance with paragraph 4
shall be notified by the Organisation to all Contracting States.
The amendment shall be deemed to have been accepted at the
end of a period of 18 months after the date of notification,
unless within that period not less than one quarter of the States
that were Contracting States at the time of the adoption of the
amendment by the Legal Committee have communicated to the
Organisation that they do not accept the amendment in which
case the amendment is rejected and shall have no effect.

An amendment deemed to have been accepted in accord-
8.
ance with paragraph 7 shall enter into force 18 months after
its acceptance.

9.
All Contracting States shall be bound by the amendment,
unless they denounce this Protocol in accordance with Article
16(1) and (2), at least six months before the amendment enters
into force. Such denunciation shall take effect when the amend-
ment enters into force.

10. When an amendment has been adopted by the Legal
Committee but the 18-month period for its acceptance has not
yet expired, a State which becomes a Contracting State during
that period shall be bound by the amendment if it enters into
force. A State which becomes a Contracting State after that
period shall be bound by an amendment which has been

4.
As between the Parties to this Protocol, denunciation by
any of them of the 1969 Liability Convention in accordance
with Article XVI thereof shall not be construed in any way as a
denunciation of the 1969 Liability Convention as amended by
this Protocol.

5.
Denunciation of the Protocol of 1992 to amend the 1971
Fund Convention by a State which remains a Party to the 1971
Fund Convention shall be deemed to be a denunciation of this
Protocol. Such denunciation shall take effect on the date on
which denunciation of the Protocol of 1992 to amend the
1971 Fund Convention takes effect according to Article 34 of
that Protocol.

Article 17

Depositary

1.
This Protocol and any amendments accepted under
Article 15 shall be deposited with the Secretary-General of the
Organisation.

2.

The Secretary-General of the Organisation shall:

(a) inform all States which have signed or acceded to this

protocol of:

(i) each new signature or deposit of an instrument

together with the date thereof;

(ii) each declaration and notification under Article 13
and each declaration and communication under
Article 13 and each declaration and communication
under Article V(9) of the 1992 Liability Convention;

(iii) the date of entry into force of this Protocol;

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(iv) any proposal to amend limits of liability which has

been made in accordance with Article 15(1);

(v) any amendment which has been adopted in accord-

ance with Article 15(4);

(vi) any amendment deemed to have been accepted under
Article 15(7), together with the date on which that
amendment shall enter into force in accordance with
paragraphs 8 and 9 of that Article;

(vii) the deposit of any instrument of denunciation of this
Protocol together with the date of the deposit and the
date on which it takes effect;

(viii) any denunciation deemed to have been made under

Article 16(5);

(ix) any communication called for by any Article of this

Protocol;

(b) transmit certified true copies of this Protocol to all Signa-
tory States and to all States which accede to this Protocol.

As soon as this Protocol enters into force, the text shall
3.
be transmitted by the Secretary-General of the Organisation to
the Secretariat of the United Nations for registration and publi-
cation in accordance with Article 102 of the Charter of the
United Nations.

Article 18

Languages

This Protocol is established in a single original in the Arabic,
Chinese, English, French, Russian and Spanish languages, each
text being equally authentic.

DONE AT LONDON, this twenty-seventh day of November one
thousand nine hundred and ninety-two.

IN WITNESS WHEREOF the undersigned, being duly authorised
by their respective Governments for that purpose, have signed
this Protocol.

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Annex