2002/971/EC: Council Decision of 18 November 2002 authorising the Member States, in the interest of the Community, to ratify or accede to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (the HNS Convention)
Date: 2002-12-13
Institutions: Council of the European Union
Subjects: EU competence, accession to an agreement, civil liability, dangerous substance, indemnification, international convention, jurisdiction, marine pollution, maritime transport, toxic substance

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II

(Acts whose publication is not obligatory)

COUNCIL

COUNCIL DECISION

of 18 November 2002

authorising the Member States, in the interest of the Community, to ratify or accede to the Inter-
national Convention on Liability and Compensation for Damage in Connection with the Carriage
of Hazardous and Noxious Substances by Sea, 1996 (the HNS Convention)

(2002/971/EC)

(3)

(4)

(5)

(6)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 61(c), Article 67(1) and Article
300(2) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

The International Convention on Liability and Compen-
sation for Damage in Connection with the Carriage of
Hazardous and Noxious Substances by Sea, 1996 (here-
inafter referred to as the ‘HNS Convention’) is aimed at
ensuring adequate, prompt, and effective compensation
of persons who suffer damage caused by spills of hazar-
dous and noxious substances, when carried by sea. The
HNS Convention fills a significant gap in the interna-
tional regulation of marine pollution liability.

Articles 38, 39 and 40 of the HNS Convention affect
Community secondary legislation on jurisdiction and the
recognition and enforcement of judgments, as laid down
in Council Regulation (EC) No 44/2001 of 22 December
2000 on jurisdiction and the recognition and enforce-
ment of judgments in civil and commercial matters (3).

(1) OJ C 51 E, 26.2.2002, p. 370.
(2) Opinion delivered on 11 June 2002 (not yet published in the Offi-

cial Journal).

(3) OJ L 12, 16.1.2001, p. 1.

The Community therefore has sole competence in rela-
tion to Articles 38, 39 and 40 of the HNS Convention
inasmuch as that Convention affects the rules laid down
in Regulation (EC) No 44/2001. The Member States
retain their competence for matters covered by that
Convention which do not affect Community law.

Pursuant to the HNS Convention, only sovereign States
may be party to it; there are no plans, in the short term,
to reopen negotiations for the purpose of taking into
account Community competence for the matter. It is not
therefore possible for the Community to ratify or accede
to the HNS Convention at present, nor is there any
prospect that it will be able to do so in the near future.

The HNS Convention is particularly important, given the
interests of
the Community and its Member States,
because it makes for improved victim protection under
international
in
keeping with the 1982 United Nations Convention on
the Law of the Sea.

rules on marine pollution liability,

The substantive rules of the system established by the
HNS Convention fall under the national competence of
Member States and only the provisions of jurisdiction
and the recognition and enforcement of the judgments
are matters covered by exclusive Community compe-
tence. Given the subject matters and the aim of the HNS
Convention,
that
Convention which come under Community competence
cannot be dissociated from the provisions which come
under the competence of the Member States.

the provisions of

acceptance of

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(7)

(8)

(9)

(10)

The Council should therefore authorise the Member
States to ratify or accede to the HNS Convention in the
interest of the Community, under the conditions set out
in this Decision.

Member States should finalise, within a reasonable time,
their procedures for ratification of, or accession to, the
HNS Convention in the interest of
the Community.
Member States should exchange information on the state
of their ratification or accession procedures in order to
prepare the deposit of their instruments of ratification
of, or accession to, the Convention.

The United Kingdom and Ireland are taking part in the
adoption and application of this Decision.

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on
European Union and to the Treaty establishing the
European Community, Denmark is not taking part in
the adoption of this Decision, and is not bound by it or
subject to its application,

HAS ADOPTED THIS DECISION:

Article 1

1. Without prejudice to existing European Community
competence in the matter, the Council hereby authorises the
Member States to ratify or accede to the HNS Convention in
the interest of the Community, subject to the conditions set out
in the following Articles.

The text of the HNS Convention is attached to this Deci-

2.
sion.

In this Decision, the term ‘Member State’ shall mean all

3.
Member States with the exception of Denmark.

Article 2

When ratifying or acceding to the HNS Convention, Member
States shall make the following declaration:

‘Judgments on matters covered by the Convention shall,
( (1)…), be recognised and
when given by a court of
enforced in ( (2)… ) according to the relevant
internal
Community rules on the subject. (*)’

Article 3

1. Member States shall take the necessary steps to deposit
the instruments of ratification of, or accession to, the HNS
Convention within a reasonable time with the Secretary-
if
General of
possible, before 30 June 2006.

the International Maritime Organisation and,

2. Member States shall inform the Council and the Commis-
sion, before 30 June 2004, of the prospective date of finalisa-
tion of their ratification or accession procedures.

3. Member Sates shall seek to exchange information on the
state of their ratification or accession procedures.

Article 4

When ratifying or acceding to the HNS Convention, Member
States shall inform the Secretary-General of the International
Maritime Organisation in writing that such ratification or
accession has taken place in accordance with this Decision.

Article 5

Member States shall, at the earliest opportunity, use their best
endeavours to ensure that the HNS Convention is amended to
allow the Community to become a contracting party to it.

Done at Brussels, 18 November 2002.

For the Council

The President

P. S. MØLLER

(1) All the Member States to which this Decision is applicable except

the Member State making the declaration and Denmark.

(2) Member State making the declaration.
(*) At present, these rules are laid down in Regulation (EC) No 44/

2001.

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ANNEX

INTERNATIONAL CONVENTION ON LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION
WITH THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES BY SEA, 1996 (HNS CONVENTION)

THE STATES PARTIES TO THE PRESENT CONVENTION,

CONSCIOUS of the dangers posed by the world-wide carriage by sea of hazardous and noxious substances,

CONVINCED of the need to ensure that adequate, prompt and effective compensation is available to persons who suffer
damage caused by incidents in connection with the carriage by sea of such substances,

DESIRING to adopt uniform international rules and procedures for determining questions of liability and compensation
in respect of such damage,

CONSIDERING that the economic consequences of damage caused by the carriage by sea of hazardous and noxious
substances should be shared by the shipping industry and the cargo interests involved,

HAVE AGREED as follows:

CHAPTER I

GENERAL PROVISIONS

Definitions

Article 1

For the purposes of this Convention:

1.

‘Ship’ means any seagoing vessel and seaborne craft, of any type whatsoever.

2.

3.

‘Person’ means any individual or partnership or any public or private body, whether corporate or not, including a
State or any of its constituent subdivisions.

‘Owner’ means the person or persons registered as the owner of the ship or, in the absence of registration, the
person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company
which in that State is registered as the ship's operator, ‘owner’ shall mean such company.

4.

‘Receiver’ means either:

(a) the person who physically receives contributing cargo discharged in the ports and terminals of a State Party;
provided that if at the time of receipt the person who physically receives the cargo acts as an agent for another
who is subject to the jurisdiction of any State Party, then the principal shall be deemed to be the receiver, if the
agent discloses the principal to the HNS Fund; or

(b) the person in the State Party who in accordance with the national law of that State Party is deemed to be the
receiver of contributing cargo discharged in the ports and terminals of a State Party, provided that the total
contributing cargo received according to such national law is substantially the same as that which would have
been received under (a).

5.

‘Hazardous and noxious substances’ (HNS) means:

(a) any substances, materials and articles carried on board a ship as cargo, referred to in (i) to (vii) below:

(i) oils carried in bulk listed in Appendix I to Annex I to the International Convention for the Prevention of

Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended;

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(ii) noxious liquid substances carried in bulk referred to in Appendix II to Annex II to the International
Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating
thereto, as amended, and those substances and mixtures provisionally categorised as falling in pollution
category A, B, C or D in accordance with Regulation 3(4) of the said Annex II;

(iii) dangerous liquid substances carried in bulk listed in Chapter 17 of the International Code for the Construc-
tion and Equipment of Ships Carrying Dangerous Chemicals in Bulk, 1983, as amended, and the dangerous
products for which the preliminary suitable conditions for the carriage have been prescribed by the Admin-
istration and port administrations involved in accordance with paragraph 1.1.3 of the Code;

(iv) dangerous, hazardous and harmful substances, materials and articles in packaged form covered by the

International Maritime Dangerous Goods Code, as amended;

(v) liquefied gases as listed in Chapter 19 of the International Code for the Construction and Equipment of
Ships carrying Liquefied Gases in Bulk, 1983, as amended, and the products for which preliminary suitable
conditions for the carriage have been prescribed by the Administration and port administrations involved
in accordance with paragraph 1.1.6 of the Code;

(vi) liquid substances carried in bulk with a flashpoint not exceeding 60 °C (measured by a closed cup test);

(vii) solid bulk materials possessing chemical hazards covered by Appendix B of the Code of Safe Practice for
Solid Bulk Cargoes, as amended, to the extent that these substances are also subject to the provisions of the
International Maritime Dangerous Goods Code when carried in packaged form; and

(b) residues from the previous carriage in bulk of substances referred to in (a)(i) to (iii) and (v) to (vii) above.

6.

‘Damage’ means:

(a) loss of life or personal injury on board or outside the ship carrying the hazardous and noxious substances

caused by those substances;

(b) loss of or damage to property outside the ship carrying the hazardous and noxious substances caused by those

substances;

(c) loss or damage by contamination of the environment caused by the hazardous and noxious substances, provided
that compensation for impairment of the environment other than loss of profit from such impairment shall be
limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and

(d) the costs of preventive measures and further loss or damage caused by preventive measures.

Where it is not reasonably possible to separate damage caused by the hazardous and noxious substances from that
caused by other factors, all such damage shall be deemed to be caused by the hazardous and noxious substances
except if, and to the extent that, the damage caused by other factors is damage of a type referred to in Article 4(3).

In this paragraph, ‘caused by those substances’ means caused by the hazardous or noxious nature of the substances.

7.

‘Preventive measures’ means any reasonable measures taken by any person after an incident has occurred to prevent
or minimise damage.

8.

‘Incident’ means any occurrence or series of occurrences having the same origin, which causes damage or creates a
grave and imminent threat of causing damage.

9.

‘Carriage by sea’ means the period from the time when the hazardous and noxious substances enter any part of the
ship's equipment, on loading, to the time they cease to be present in any part of the ship's equipment, on discharge.
If no ship's equipment is used, the period begins and ends respectively when the hazardous and noxious substances
cross the ship's rail.

10.

‘Contributing cargo’ means any hazardous and noxious substances which are carried by sea as cargo to a port or
terminal in the territory of a State Party and discharged in that State. Cargo in transit which is transferred directly,
or through a port or terminal, from one ship to another, either wholly or in part, in the course of carriage from the
port or terminal of original loading to the port or terminal of final destination shall be considered as contributing
cargo only in respect of receipt at the final destination.

11. The ‘HNS Fund’ means the International Hazardous and Noxious Substances Fund established under Article 13.

12.

‘Unit of account’ means the Special Drawing Right as defined by the International Monetary Fund.

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13.

‘State of the ship's registry’ means in relation to a registered ship the State of registration of the ship, and in relation
to an unregistered ship the State whose flag the ship is entitled to fly.

14.

‘Terminal’ means any site for the storage of hazardous and noxious substances received from waterborne transporta-
tion, including any facility situated off-shore and linked by pipeline or otherwise to such site.

15.

‘Director’ means the Director of the HNS Fund.

16.

‘Organisation’ means the International Maritime Organisation.

17.

‘Secretary-General’ means the Secretary-General of the Organisation.

Annexes

Article 2

The Annexes to this Convention shall constitute an integral part of this Convention

Scope of application

Article 3

The Annexes to this shall apply exclusively:

(a) to any damage caused in the territory, including the territorial sea, of a State Party;

(b) to damage by contamination of the environment caused in the exclusive economic zone of a State Party, established
in accordance with international law, or, if a State Party has not established such a zone, in an area beyond and adja-
cent 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 baselines from which the breadth of its territorial sea is measured;

(c) to damage, other than damage by contamination of the environment, caused outside the territory, including the
territorial sea, of any State, if this damage has been caused by a substance carried on board a ship registered in a
State Party or, in the case of an unregistered ship, on board a ship entitled to fly the flag of a State Party; and

(d) to preventive measures, wherever taken.

Article 4

This Convention shall apply to claims, other than claims arising out of any contract for the carriage of goods and

1.
passengers, for damage arising from the carriage of hazardous and noxious substances by sea.

This Convention shall not apply to the extent that its provisions are incompatible with those of the applicable law

2.
relating to workers' compensation or social security schemes.

3.

This Convention shall not apply:

(a) to pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage, 1969, as

amended, whether or not compensation is payable in respect of it under that Convention; and

(b) to damage caused by a radioactive material of class 7 either in the International Maritime Dangerous Goods Code, as

amended, or in appendix B of the Code of Safe Practice for Solid Bulk Cargoes, as amended.

4.
Except as provided in paragraph 5, the provisions of this Convention shall not apply to warships, naval auxiliary
or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service.

A State Party may decide to apply this Convention to its warships or other vessels described in paragraph 4, in

5.
which case it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

6. With respect to ships owned by a State Party and used for commercial purposes, each State shall be subject to suit
in the jurisdictions set forth in Article 38 and shall waive all defences based on its status as a sovereign State.

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A State may, at the time of ratification, acceptance, approval of, or accession to, this Convention, or any time

1.
thereafter, declare that this Convention does not apply to ships:

Article 5

(a) which do not exceed 200 gross tonnage; and

(b) which carry hazardous and noxious substances only in packaged form; and

(c) while they are engaged on voyages between ports or facilities of that State.

2. Where two neighbouring States agree that this Convention does not apply also to ships which are covered by para-
graph 1(a) and (b) while engaged on voyages between ports or facilities of those States, the States concerned may declare
that the exclusion from the application of this Convention declared under paragraph 1 covers also ships referred to in
this paragraph.

3.

Any State which has made the declaration under paragraph 1 or 2 may withdraw such declaration at any time.

A declaration made under paragraph 1 or 2, and the withdrawal of the declaration made under paragraph 3, shall

4.
be deposited with the Secretary-General who shall, after the entry into force of this communicate it to the Director.

5. Where a State has made a declaration under paragraph 1 or 2 and has not withdrawn it, hazardous and noxious
substances carried on board ships covered by that paragraph shall not be considered to be contributing cargo for the
purpose of application of Articles 18, 20, Article 21(5) and Article 43.

The HNS Fund is not liable to pay compensation for damage caused by substances carried by a ship to which the

6.
Convention does not apply pursuant to a declaration made under paragraph 1 or 2, to the extent that:

(a) the damage as defined in Article 1, paragraph 6(a), (b) or (c) was caused in:

(i) the territory, including the territorial sea, of the State which has made the declaration, or in the case of neigh-

bouring States which have made a declaration under paragraph 2, of either of them; or

(ii) the exclusive economic zone, or area mentioned in Article 3(b), of the State or States referred to in (i);

(b) the damage includes measures taken to prevent or minimise such damage.

Duties of State Parties

Article 6

Each State Party shall ensure that any obligation arising under this is fulfilled and shall take appropriate measures under
its law including the imposing of sanctions as it may deem necessary, with a view to the effective execution of any such
obligation.

CHAPTER II

LIABILITY

Liability of the owner

Article 7

1.
Except as provided in paragraphs 2 and 3, the owner at the time of an incident shall be liable for damage caused
by any hazardous and noxious substances in connection with their carriage by sea on board the ship, provided that if an
incident consists of a series of occurrences having the same origin the liability shall attach to the owner at the time of
the first of such occurrences.

2.

No liability shall attach to the owner if the owner proves that:

(a) the damage resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an excep-

tional, inevitable and irresistible character; or

(b) the damage was wholly caused by an act or omission done with the intent to cause damage by a third party; or

(c) the damage 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; or

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(d) the failure of the shipper or any other person to furnish information concerning the hazardous and noxious nature

of the substances shipped either

(i) has caused the damage, wholly or partly; or

(ii) has led the owner not to obtain insurance in accordance with Article 12;

provided that neither the owner nor its servants or agents knew or ought reasonably to have known of the hazardous
and noxious nature of the substances shipped.

3.
If the owner proves that the damage resulted wholly or partly 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 exoner-
ated wholly or partially from liability to such person.

4.

No claim for compensation for damage shall be made against the owner otherwise than in accordance with this.

Subject to paragraph 6, no claim for compensation for damage under this Convention or otherwise may be made

5.
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 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; and

(f) the servants or agents of persons mentioned in (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.

6.
Nothing in this Convention shall prejudice any existing right of recourse of the owner against any third party,
including, but not limited to, the shipper or the receiver of the substance causing the damage, or the persons indicated
in paragraph 5.

Incidents involving two or more ships

Article 8

1. Whenever damage has resulted from an incident involving two or more ships each of which is carrying hazardous
and noxious substances, each owner, unless exonerated under Article 7, shall be liable for the damage. The owners shall
be jointly and severally liable for all such damage which is not reasonably separable.

2.

3.

However, owners shall be entitled to the limits of liability applicable to each of them under Article 9.

Nothing in this Article shall prejudice any right of recourse of an owner against any other owner.

Limitation of liability

Article 9

The owner of a ship shall be entitled to limit liability under this Convention in respect of any one incident to an

1.
aggregate amount calculated as follows:

(a) 10 million units of account for a ship not exceeding 2 000 units of tonnage; and

(b) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (a):

— for each unit of tonnage from 2 001 to 50 000 units of tonnage, 1 500 units of account;

— for each unit of tonnage in excess of 50 000 units of tonnage, 360 units of account;

provided, however, that this aggregate amount shall not in any event exceed 100 million units of account.

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The owner shall not be entitled to limit liability under this Convention if it is proved that the damage resulted from
2.
the personal act or omission of the owner, committed with the intent to cause such damage, or recklessly and with
knowledge that such damage would probably result.

3.
The owner shall, for the purpose of benefitting from the limitation provided for in paragraph 1, constitute a fund
for the total sum representing the limit of liability established in accordance with paragraph 1 with the court or other
competent authority of any one of the States Parties in which action is brought under Article 38 or, if no action is
brought, with any court or other competent authority in any one of the States Parties in which an action can be brought
under Article 38. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other
guarantee, acceptable under the law of the State Party where the fund is constituted, and considered to be adequate by
the court or other competent authority.

Subject to the provisions of Article 11, the fund shall be distributed among the claimants in proportion to the

4.
amounts of their established claims.

If before the fund is distributed the owner or any of the servants or agents of the owner or any person providing
5.
to the owner insurance or other financial security has as a result of the incident in question, paid compensation for
damage, such person shall, up to the amount that person has paid, acquire by subrogation the rights which the person
so compensated would have enjoyed under this Convention.

The right of subrogation provided for in paragraph 5 may also be exercised by a person other than those
6.
mentioned therein in respect of any amount of compensation for damage which such person may have paid but only to
the extent that such subrogation is permitted under the applicable national law.

7. Where owners or other persons establish that they may be compelled to pay at a later date in whole or in part any
such amount of compensation, with regard to which the right of subrogation would have been enjoyed under para-
graphs 5 or 6 had the compensation been paid before the fund was distributed, the court or other competent authority
of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable
such person at such later date to enforce the claim against the fund.

Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to

8.
prevent or minimise damage shall rank equally with other claims against the fund.

9.

(a) 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 para-
graph 3. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a
member of the International Monetary Fund, 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.
The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member
of the International Monetary Fund, shall be calculated in a manner determined by that State.

(b) Nevertheless, a State Party 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 ratification, acceptance, approval
of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in para-
graph 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 State Party as far as possible the same
real value for the amounts in paragraph 1 as would result from the application of the first two sentences of para-
graph 9(a). States Parties shall communicate to the Secretary-General the manner of calculation pursuant to para-
graph 9(a), or the result of the conversion in paragraph 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.

10.
For the purpose of this Article the ship's 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.

11.
The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with
this Article 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 paragraph 2, the owner is not entitled to limitation of liability, but its
constitution shall in that case not prejudice the rights of any claimant against the owner.

Article 10

1. Where the owner, after an incident, has constituted a fund in accordance with Article 9 and is entitled to limit
liability:

(a) no person having a claim for 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; and

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(b) the court or other competent authority of any State Party shall order the release of any ship or other property
belonging to the owner which has been arrested in respect of a claim for damage arising out of that incident, and
shall similarly release any bail or other security furnished to avoid such arrest.

The foregoing shall, however, only apply if the claimant has access to the court administering the fund and the

2.
fund is actually available in respect of the claim.

Death and injury

Article 11

Claims in respect of death or personal injury have priority over other claims save to the extent that the aggregate of such
claims exceeds two-thirds of the total amount established in accordance with Article 9(1).

Compulsory insurance of the owner

Article 12

The owner of a ship registered in a State Party and actually carrying hazardous and noxious substances shall be
1.
required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution,
in the sums fixed by applying the limits of liability prescribed in Article 9(1), to cover liability for damage under this
Convention.

A compulsory insurance certificate attesting that insurance or other financial security is in force in accordance with
2.
the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has deter-
mined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party
such compulsory insurance certificate shall be issued or certified by the appropriate authority of the State of the ship's
registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of
any State Party. This compulsory insurance certificate shall be in the form of the model set out in Annex I and shall
contain the following particulars:

(a) name of the ship, distinctive number or letters and port of registry;

(b) name and principal place of business of the owner;

(c) IMO ship identification number;

(d) type and duration of security;

(e) name and principal place of business of insurer or other person giving security and, where appropriate, place of

business where the insurance or security is established; and

(f) period of validity of certificate, which shall not be longer than the period of validity of the insurance or other

security.

3.
The compulsory insurance certificate shall be in the official language or languages of the issuing State. If the
language used is neither English, nor French nor Spanish, the text shall include a translation into one of these languages.

4.
The compulsory insurance certificate shall be carried on board the ship and 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 State Party, with the authority
of the State issuing or certifying the certificate.

5.
An insurance or other financial security shall not satisfy the requirements of this Article if it can cease, for reasons
other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2,
before three months have elapsed from the date on which notice of its termination is given to the authorities referred to
in paragraph 4, unless the compulsory insurance certificate has been issued within the said period. The foregoing provi-
sions shall similarly apply to any modification which results in the insurance or security no longer satisfying the require-
ments of this Article.

The State of the ship's registry shall, subject to the provisions of this Article, determine the conditions of issue and

6.
validity of the compulsory insurance certificate.

7.
Compulsory insurance certificates issued or certified under the authority of a State Party in accordance with para-
graph 2 shall be accepted by other States Parties for the purposes of this Convention and shall be regarded by other
States Parties as having the same force as compulsory insurance certificates issued or certified by them even if issued or
certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the
issuing or certifying State should it believe that the insurer or guarantor named in the compulsory insurance certificate
is not financially capable of meeting the obligations imposed by this Convention.

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Any claim for compensation for damage may be brought directly against the insurer or other person providing
8.
financial security for the owner's liability for damage. In such case the defendant may, even if the owner is not entitled
to limitation of liability, benefit from the limit of liability prescribed in accordance with paragraph 1. The defendant
may further invoke the defences (other than the bankruptcy or winding up of the owner) which the owner would have
been entitled to invoke. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful
misconduct of the owner, but the defendant shall not invoke any other defence which the defendant might have been
entitled to invoke in proceedings brought by the owner against the defendant. The defendant shall in any event have the
right to require the owner to be joined in the proceedings.

Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 shall be

9.
available exclusively for the satisfaction of claims under this Convention.

A State Party shall not permit a ship under its flag to which this Article applies to trade unless a certificate has

10.
been issued under paragraph 2 or 12.

Subject to the provisions of this Article, each State Party shall ensure, under its national law, that insurance or
11.
other security in the sums specified in paragraph 1 is in force in respect of any ship, wherever registered, entering or
leaving a port in its territory, or arriving at or leaving an offshore facility in its territorial sea.

12.
If insurance or other financial security is not maintained in respect of a ship owned by a State Party, the provi-
sions of this Article relating thereto shall not be applicable to such ship, but the ship shall carry a compulsory insurance
certificate issued by the appropriate authorities of the State of the ship's registry stating that the ship is owned by that
State and that the ship's liability is covered within the limit prescribed in accordance with paragraph 1. Such a compul-
sory insurance certificate shall follow as closely as possible the model prescribed by paragraph 2.

COMPENSATION BY THE INTERNATIONAL HAZARDOUS AND NOXIOUS SUBSTANCES FUND (HNS
FUND)

CHAPTER III

Establishment of the HNS Fund

Article 13

The International Hazardous and Noxious Substances Fund (HNS Fund) is hereby established with the following

1.
aims:

(a) to provide compensation for damage in connection with the carriage of hazardous and noxious substances by sea,

to the extent that the protection afforded by Chapter II is inadequate or not available; and

(b) to give effect to the related tasks set out in Article 15.

2.
The HNS Fund shall in each State Party be recognised as a legal person capable under the laws of that State of
assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each State Party
shall recognise the Director as the legal representative of the HNS Fund.

Compensation

Article 14

1.
For the purpose of fulfilling its function under Article 13(1)(a), the HNS Fund shall pay compensation to any
person suffering damage if such person has been unable to obtain full and adequate compensation for the damage under
the terms of Chapter II:

(a) because no liability for the damage arises under Chapter II;

(b) because the owner liable for the damage under Chapter II is financially incapable of meeting the obligations under
this Convention in full and any financial security that may be provided under Chapter II does not cover or is insuffi-
cient to satisfy the claims for compensation for damage; an owner being treated as financially incapable of meeting
these obligations and a financial security being treated as insufficient if the person suffering the damage has been
unable to obtain full satisfaction of the amount of compensation due under Chapter II after having taken all reason-
able steps to pursue the available legal remedies;

(c) because the damage exceeds the owner's liability under the terms of Chapter II.

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Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimise

2.
damage shall be treated as damage for the purposes of this Article.

3.

The HNS Fund shall incur no obligation under the preceding paragraphs if:

(a) it proves that the damage resulted from an act of war, hostilities, civil war or insurrection or was caused by hazar-
dous and noxious substances which had escaped or been discharged from a warship or other ship owned or oper-
ated by a State and used, at the time of the incident, only on Government non-commercial service; or

(b) the claimant cannot prove that there is a reasonable probability that the damage resulted from an incident involving

one or more ships.

4.
If the HNS Fund proves that the damage resulted wholly or partly 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 HNS Fund may be
exonerated wholly or partially from its obligation to pay compensation to such person. The HNS Fund shall in any event
be exonerated to the extent that the owner may have been exonerated under Article 7(3). However, there shall be no
such exoneration of the HNS Fund with regard to preventive measures.

5.

(a) Except as otherwise provided in subparagraph (b), the aggregate amount of compensation payable by the HNS
Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and
any amount of compensation actually paid under Chapter II for damage within the scope of application of this
Convention as defined in Article 3 shall not exceed 250 million units of account.

(b) The aggregate amount of compensation payable by the HNS Fund under this Article for damage resulting from a
natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 250 million units of
account.

(c) Interest accrued on a fund constituted in accordance with Article 9(3), if any, shall not be taken into account for

the computation of the maximum compensation payable by the HNS Fund under this Article.

(d) The amounts mentioned in this Article shall be converted into national currency on the basis of the value of that
currency with reference to the Special Drawing Right on the date of the decision of the Assembly of the HNS
Fund as to the first date of payment of compensation.

6. Where the amount of established claims against the HNS Fund exceeds the aggregate amount of compensation
payable under paragraph 5, the amount available shall be distributed in such a manner that the proportion between any
established claim and the amount of compensation actually recovered by the claimant under this Convention shall be
the same for all claimants. Claims in respect of death or personal injury shall have priority over other claims, however,
save to the extent that the aggregate of such claims exceeds two-thirds of the total amount established in accordance
with paragraph 5.

7.
The Assembly of the HNS Fund may decide that, in exceptional cases, compensation in accordance with this
Convention can be paid even if the owner has not constituted a fund in accordance with Chapter II. In such cases para-
graph 5(d) applies accordingly.

Related tasks of the HNS Fund

Article 15

For the purpose of fulfilling its function under Article 13(1)(a), the HNS Fund shall have the following tasks:

(a) to consider claims made against the HNS Fund;

(b) to prepare an estimate in the form of a budget for each calendar year of:

Expenditure:

(i) costs and expenses of the administration of the Fund in the relevant year and any deficit from operations in the

preceding years; and

(ii) payments to be made by the HNS Fund in the relevant year;

Income:

(iii) surplus funds from operations in preceding years, including any interest;

(iv) initial contributions to be paid in the course of the year;

(v) annual contributions if required to balance the budget; and

(vi) any other income;

(c) to use at the request of a State Party its good offices as necessary to assist that State to secure promptly such
personnel, material and services as are necessary to enable the State to take measures to prevent or mitigate damage
arising from an incident in respect of which the HNS Fund may be called upon to pay compensation under this
Convention; and

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(d) to provide, on conditions laid down in the internal regulations, credit facilities with a view to the taking of preven-
tive measures against damage arising from a particular incident in respect of which the HNS Fund may be called
upon to pay compensation under this Convention.

General provisions on contributions

Article 16

1.

2.

The HNS Fund shall have a general account, which shall be divided into sectors.

The HNS Fund shall, subject to Article 19(3) and (4), also have separate accounts in respect of:

(a) oil as defined in Article 1(5)(a)(i) (oil account);

(b) liquefied natural gases of light hydrocarbons with methane as the main constituent (LNG) (LNG account); and

(c) liquefied petroleum gases of light hydrocarbons with propane and butane as the main constituents (LPG) (LPG

account).

3.

There shall be initial contributions and, as required, annual contributions to the HNS Fund.

4.
Contributions to the HNS Fund shall be made into the general account in accordance with Article 18, to separate
accounts in accordance with Article 19 and to either the general account or separate accounts in accordance with Article
20 or Article 21(5). Subject to Article 19(6), the general account shall be available to compensate damage caused by
hazardous and noxious substances covered by that account, and a separate account shall be available to compensate
damage caused by a hazardous and noxious substance covered by that account.

For the purposes of Article 18, Article 19(1)(a)(i) and (ii) and (1)(c), Article 20 and Article 21(5), where the quantity
5.
of a given type of contributing cargo received in the territory of a State Party by any person in a calendar year when
aggregated with the quantities of the same type of cargo received in the same State Party in that year by any associated
person or persons exceeds the limit specified in the respective subparagraphs, such a person shall pay contributions in
respect of the actual quantity received by that person notwithstanding that that quantity did not exceed the respective
limit.

‘Associated person’ means any subsidiary or commonly controlled entity. The question whether a person comes

6.
within this definition shall be determined by the national law of the State concerned.

General provisions on annual contributions

Article 17

Annual contributions to the general account and to each separate account shall be levied only as required to make

1.
payments by the account in question.

2.
Annual contributions payable pursuant to Articles 18, 19 and Article 21(5) shall be determined by the Assembly
and shall be calculated in accordance with those Articles on the basis of the units of contributing cargo received or, in
respect of cargoes referred to in Article 19(1)(b), discharged during the preceding calendar year or such other year as the
Assembly may decide.

3.
The Assembly shall decide the total amount of annual contributions to be levied to the general account and to each
separate account. Following that decision the Director shall, in respect of each State Party, calculate for each person
liable to pay contributions in accordance with Article 18, Article 19(1) and Article 21(5), the amount of that person's
annual contribution to each account, on the basis of a fixed sum for each unit of contributing cargo reported in respect
of the person during the preceding calendar year or such other year as the Assembly may decide. For the general
account, the abovementioned fixed sum per unit of contributing cargo for each sector shall be calculated pursuant to
the regulations contained in Annex II to this Convention. For each separate account, the fixed sum per unit of contri-
buting cargo referred to above shall be calculated by dividing the total annual contribution to be levied to that account
by the total quantity of cargo contributing to that account.

The Assembly may also levy annual contributions for administrative costs and decide on the distribution of such

4.
costs between the sectors of the general account and the separate accounts.

5.
The Assembly shall also decide on the distribution between the relevant accounts and sectors of amounts paid in
compensation for damage caused by two or more substances which fall within different accounts or sectors, on the basis
of an estimate of the extent to which each of the substances involved contributed to the damage.

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Annual contributions to the general account

Article 18

Subject to Article 16(5), annual contributions to the general account shall be made in respect of each State Party
1.
by any person who was the receiver in that State in the preceding calendar year, or such other year as the Assembly
may decide, of aggregate quantities exceeding 20 000 tonnes of contributing cargo, other than substances referred to in
Article 19(1), which fall within the following sectors:

(a) solid bulk materials referred to in Article 1(5)(a)(vii);

(b) substances referred to in paragraph 2; and

(c) other substances.

Annual contributions shall also be payable to the general account by persons who would have been liable to pay
2.
contributions to a separate account in accordance with Article 19(1) had its operation not been postponed or suspended
in accordance with Article 19. Each separate account the operation of which has been postponed or suspended under
Article 19 shall form a separate sector within the general account.

Annual contributions to separate accounts

Article 19

1.

Subject to Article 16(5), annual contributions to separate accounts shall be made in respect of each State Party:

(a) in the case of the oil account,

(i) by any person who has received in that State in the preceding calendar year, or such other year as the Assembly
may decide, total quantities exceeding 150 000 tonnes of contributing oil as defined in Article 1(3) of the Inter-
national Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage,
1971, as amended, and who is or would be liable to pay contributions to the International Oil Pollution
Compensation Fund in accordance with Article 10 of that Convention; and

(ii) by any person who was the receiver in that State in the preceding calendar year, or such other year as the
Assembly may decide, of total quantities exceeding 20 000 tonnes of other oils carried in bulk listed in Appendix
I to Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by
the Protocol of 1978 relating thereto, as amended;

(b) in the case of the LNG account, by any person who in the preceding calendar year, or such other year as the
Assembly may decide, immediately prior to its discharge, held title to an LNG cargo discharged in a port or terminal
of that State;

(c) in the case of the LPG account, by any person who in the preceding calendar year, or such other year as the

Assembly may decide, was the receiver in that State of total quantities exceeding 20 000 tonnes of LPG.

Subject to paragraph 3, the separate accounts referred to in paragraph 1 above shall become effective at the same

2.
time as the general account.

3.
The initial operation of a separate account referred to in Article 16(2) shall be postponed until such time as the
quantities of contributing cargo in respect of that account during the preceding calendar year, or such other year as the
Assembly may decide, exceed the following levels:

(a) 350 million tonnes of contributing cargo in respect of the oil account;

(b) 20 million tonnes of contributing cargo in respect of the LNG account; and

(c) 15 million tonnes of contributing cargo in respect of the LPG account.

4.

The Assembly may suspend the operation of a separate account if:

(a) the quantities of contributing cargo in respect of that account during the preceding calendar year fall below the

respective level specified in paragraph 3; or

(b) when six months have elapsed from the date when the contributions were due, the total unpaid contributions to that

account exceed ten percent of the most recent levy to that account in accordance with paragraph 1.

The Assembly may reinstate the operation of a separate account which has been suspended in accordance with

5.
paragraph 4.

6.
Any person who would be liable to pay contributions to a separate account the operation of which has been post-
poned in accordance with paragraph 3 or suspended in accordance with paragraph 4, shall pay into the general account
the contributions due by that person in respect of that separate account. For the purpose of calculating future contribu-
tions, the postponed or suspended separate account shall form a new sector in the general account and shall be subject
to the HNS points system defined in Annex II.

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Initial contributions

Article 20

In respect of each State Party, initial contributions shall be made of an amount which shall for each person liable
1.
to pay contributions in accordance with Article 16(5), Articles 18, 19 and Article 21(5) be calculated on the basis of a
fixed sum, equal for the general account and each separate account, for each unit of contributing cargo received or, in
the case of LNG, discharged in that State, during the calendar year preceding that in which this Convention enters into
force for that State.

The fixed sum and the units for the different sectors within the general account as well as for each separate

2.
account referred to in paragraph 1 shall be determined by the Assembly.

Initial contributions shall be paid within three months following the date on which the HNS Fund issues invoices

3.
in respect of each State Party to persons liable to pay contributions in accordance with paragraph 1.

Reports

Article 21

1.
Each State Party shall ensure that any person liable to pay contributions in accordance with Articles 18, 19 or
paragraph 5 of this Article appears on a list to be established and kept up to date by the Director in accordance with
the provisions of this Article.

2.
For the purposes set out in paragraph 1, each State Party shall communicate to the Director, at a time and in the
manner to be prescribed in the internal regulations of the HNS Fund, the name and address of any person who in
respect of the State is liable to pay contributions in accordance with Articles 18, 19 or paragraph 5 of this Article, as
well as data on the relevant quantities of contributing cargo for which such a person is liable to contribute in respect of
the preceding calendar year.

3.
For the purposes of ascertaining who are, at any given time, the persons liable to pay contributions in accordance
with Articles 18, 19 or paragraph 5 of this Article and of establishing, where applicable, the quantities of cargo to be
taken into account for any such person when determining the amount of the contribution, the list shall be prima facie
evidence of the facts stated therein.

4. Where a State Party does not fulfil its obligations to communicate to the Director the information referred to in
paragraph 2 and this results in a financial loss for the HNS Fund, that State Party shall be liable to compensate the HNS
Fund for such loss. The Assembly shall, on the recommendation of the Director, decide whether such compensation shall
be payable by a State Party.

5.
In respect of contributing cargo carried from one port or terminal of a State Party to another port or terminal
located in the same State and discharged there, States Parties shall have the option of submitting to the HNS Fund a
report with an annual aggregate quantity for each account covering all receipts of contributing cargo, including any
quantities in respect of which contributions are payable pursuant to Article 16(5). The State Party shall, at the time of
reporting, either:

(a) notify the HNS Fund that that State will pay the aggregate amount for each account in respect of the relevant year

in one lump sum to the HNS Fund; or

(b) instruct the HNS Fund to levy the aggregate amount for each account by invoicing individual receivers or, in the case
of LNG, the title holder who discharges within the jurisdiction of that State Party, for the amount payable by each of
them. These persons shall be identified in accordance with the national law of the State concerned.

Non-payment of contributions

Article 22

1.
The amount of any contribution due under Articles 18, 19, 20 or Article 21(5) and which is in arrears shall bear
interest at a rate which shall be determined in accordance with the internal regulations of the HNS Fund, provided that
different rates may be fixed for different circumstances.

2. Where a person who is liable to pay contributions in accordance with Articles 18, 19, 20 or Article 21(5) does
not fulfil the obligations in respect of any such contribution or any part thereof and is in arrears, the Director shall take
all appropriate action, including court action, against such a person on behalf of the HNS Fund with a view to the
recovery of the amount due. However, where the defaulting contributor is manifestly insolvent or the circumstances
otherwise so warrant, the Assembly may, upon recommendation of the Director, decide that no action shall be taken or
continued against the contributor.

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Optional liability of States Parties for the payment of contributions

Article 23

1. Without prejudice to Article 21(5), a State Party may at the time when it deposits its instrument of ratification,
acceptance, approval or accession or at any time thereafter declare that it assumes responsibility for obligations imposed
by this Convention on any person liable to pay contributions in accordance with Articles 18, 19, 20 or Article 21(5) in
respect of hazardous and noxious substances received or discharged in the territory of that State. Such a declaration shall
be made in writing and shall specify which obligations are assumed.

2. Where a declaration under paragraph 1 is made prior to the entry into force of this Convention in accordance with
Article 46, it shall be deposited with the Secretary-General who shall after the entry into force of this Convention
communicate the declaration to the Director.

A declaration under paragraph 1 which is made after the entry into force of this Convention shall be deposited

3.
with the Director.

A declaration made in accordance with this Article may be withdrawn by the relevant State giving notice thereof

4.
in writing to the Director. Such a notification shall take effect three months after the Director's receipt thereof.

5.
Any State which is bound by a declaration made under this Article shall, in any proceedings brought against it
before a competent court in respect of any obligation specified in the declaration, waive any immunity that it would
otherwise be entitled to invoke.

Organisation and administration

Article 24

The HNS Fund shall have an Assembly and a Secretariat headed by the Director.

Assembly

Article 25

The Assembly shall consist of all States Parties to this Convention.

The functions of the Assembly shall be:

Article 26

(a) to elect at each regular session its President and two Vice-Presidents who shall hold office until the next regular

session;

(b) to determine its own rules of procedure, subject to the provisions of this Convention;

(c) to develop, apply and keep under review internal and financial regulations relating to the aim of the HNS Fund as

described in Article 13(1)(a), and the related tasks of the HNS Fund listed in Article 15;

(d) to appoint the Director and make provisions for the appointment of such other personnel as may be necessary and

determine the terms and conditions of service of the Director and other personnel;

(e) to adopt the annual budget prepared in accordance with Article 15(b);

(f) to consider and approve as necessary any recommendation of the Director regarding the scope of definition of

contributing cargo;

(g) to appoint auditors and approve the accounts of the HNS Fund;

(h) to approve settlements of claims against the HNS Fund, to take decisions in respect of the distribution among clai-
mants of the available amount of compensation in accordance with Article 14 and to determine the terms and
conditions according to which provisional payments in respect of claims shall be made with a view to ensuring that
victims of damage are compensated as promptly as possible;

(i) to establish a Committee on Claims for Compensation with at least seven and not more than 15 members and any
temporary or permanent subsidiary body it may consider to be necessary, to define its terms of reference and to
give it the authority needed to perform the functions entrusted to it; when appointing the members of such body,
the Assembly shall endeavour to secure an equitable geographical distribution of members and to ensure that the
States Parties are appropriately represented; the Rules of Procedure of the Assembly may be applied, mutatis
mutandis, for the work of such subsidiary body;

(j) to determine which States not party to this Convention, which Associate Members of the Organisation and which
intergovernmental and international non-governmental organisations shall be admitted to take part, without voting
rights, in meetings of the Assembly and subsidiary bodies;

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(k) to give instructions concerning the administration of the HNS Fund to the Director and subsidiary bodies;

(l) to supervise the proper execution of this Convention and of its own decisions;

(m) to review every five years the implementation of this Convention with particular reference to the performance of

the system for the calculation of levies and the contribution mechanism for domestic trade; and

(n) to perform such other functions as are allocated to it under this Convention or are otherwise necessary for the

proper operation of the HNS Fund.

Article 27

1.

Regular sessions of the Assembly shall take place once every calendar year upon convocation by the Director.

2.
Extraordinary sessions of the Assembly shall be convened by the Director at the request of at least one-third of the
members of the Assembly and may be convened on the Director's own initiative after consultation with the President of
the Assembly. The Director shall give members at least 30 days' notice of such sessions.

A majority of the members of the Assembly shall constitute a quorum for its meetings.

Article 28

Secretariat

Article 29

1.

2.

The Secretariat shall comprise the Director and such staff as the administration of the HNS Fund may require.

The Director shall be the legal representative of the HNS Fund.

Article 30

1.
The Director shall be the chief administrative officer of the HNS Fund. Subject to the instructions given by the
Assembly, the Director shall perform those functions which are assigned to the Director by this Convention, the internal
regulations of the HNS Fund and the Assembly.

2.

The Director shall in particular:

(a) appoint the personnel required for the administration of the HNS Fund;

(b) take all appropriate measures with a view to the proper administration of the assets of the HNS Fund;

(c) collect the contributions due under this Convention while observing in particular the provisions of Article 22(2);

(d) to the extent necessary to deal with claims against the HNS Fund and to carry out the other functions of the HNS

Fund, employ the services of legal, financial and other experts;

(e) take all appropriate measures for dealing with claims against the HNS Fund, within the limits and on conditions to
be laid down in the internal regulations of the HNS Fund, including the final settlement of claims without the prior
approval of the Assembly where these regulations so provide;

(f) prepare and submit to the Assembly the financial statements and budget estimates for each calendar year;

(g) prepare, in consultation with the President of the Assembly, and publish a report on the activities of the HNS Fund

during the previous calendar year; and

(h) prepare, collect and circulate the documents and information which may be required for the work of the Assembly

and subsidiary bodies.

Article 31

In the performance of their duties the Director and the staff and experts appointed by the Director shall not seek or
receive instructions from any Government or from any authority external to the HNS Fund. They shall refrain from any
action which might adversely reflect on their position as international officials. Each State Party on its part undertakes to
respect the exclusively international character of the responsibilities of the Director and the staff and experts appointed
by the Director, and not to seek to influence them in the discharge of their duties.

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Finances

Article 32

Each State Party shall bear the salary, travel and other expenses of its own delegation to the Assembly and of its

1.
representatives on subsidiary bodies.

2.

Any other expenses incurred in the operation of the HNS Fund shall be borne by the HNS Fund.

Voting

Article 33

The following provisions shall apply to voting in the Assembly:

(a) each member shall have one vote;

(b) except as otherwise provided in Article 34, decisions of the Assembly shall be made by a majority vote of the

members present and voting;

(c) decisions where a two-thirds majority is required shall be a two-thirds majority vote of members present; and

(d) for the purpose of this Article the phrase ‘members present’ means ‘members present at the meeting at the time of
the vote’, and the phrase ‘members present and voting’ means ‘members present and casting an affirmative or nega-
tive vote’. Members who abstain from voting shall be considered as not voting.

Article 34

The following decisions of the Assembly shall require a two-thirds majority:

(a) a decision under Article 19(4) or (5) to suspend or reinstate the operation of a separate account;

(b) a decision under Article 22(2), not to take or continue action against a contributor;

(c) the appointment of the Director under Article 26(d);

(d) the establishment of subsidiary bodies, under Article 26(i), and matters relating to such establishment; and

(e) a decision under Article 51(1), that this Convention shall continue to be in force.

Tax exemptions and currency regulations

Article 35

The HNS Fund, its assets, income, including contributions, and other property necessary for the exercise of its

1.
functions as described in Article 13(1), shall enjoy in all States Parties exemption from all direct taxation.

2. When the HNS Fund makes substantial purchases of movable or immovable property, or of services which are
necessary for the exercise of its official activities in order to achieve its aims as set out in Article 13(1), the cost of which
include indirect taxes or sales taxes, the Governments of the States Parties shall take, whenever possible, appropriate
measures for the remission or refund of the amount of such duties and taxes. Goods thus acquired shall not be sold
against payment or given away free of charge unless it is done according to conditions approved by the Government of
the State having granted or supported the remission or refund.

No exemption shall be accorded in the case of duties, taxes or dues which merely constitute payment for public

3.
utility services.

4.
The HNS Fund shall enjoy exemption from all customs duties, taxes and other related taxes on articles imported or
exported by it or on its behalf for its official use. Articles thus imported shall not be transferred either for consideration
or gratis on the territory of the country into which they have been imported except on conditions agreed by the Govern-
ment of that country.

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Persons contributing to the HNS Fund as well as victims and owners receiving compensation from the HNS Fund
5.
shall be subject to the fiscal legislation of the State where they are taxable, no special exemption or other benefit being
conferred on them in this respect.

6.
Notwithstanding existing or future regulations concerning currency or transfers, States Parties shall authorize the
transfer and payment of any contribution to the HNS Fund and of any compensation paid by HNS Fund without any
restriction.

Confidentiality of information

Article 36

Information relating to individual contributors supplied for the purpose of this Convention shall not be divulged outside
the HNS Fund except in so far as it may be strictly necessary to enable the HNS Fund to carry out its functions including
the bringing and defending of legal proceedings.

CHAPTER IV

CLAIMS AND ACTIONS

Limitation of actions

Article 37

1.
Rights to compensation under Chapter II shall be extinguished unless an action is brought thereunder within three
years from the date when the person suffering the damage knew or ought reasonably to have known of the damage and
of the identity of the owner.

2.
Rights to compensation under Chapter III shall be extinguished unless an action is brought thereunder or a notifi-
cation has been made pursuant to Article 39(7), within three years from the date when the person suffering the damage
knew or ought reasonably to have known of the damage.

In no case, however, shall an action be brought later than 10 years from the date of the incident which caused the

3.
damage.

4. Where the incident consists of a series of occurrences, the 10-year period mentioned in paragraph 3 shall run from
the date of the last of such occurrences.

Jurisdiction in respect of action against the owner

Article 38

1. Where an incident has caused damage in the territory, including the territorial sea or in an area referred to in
Article 3(b), of one or more States Parties, or preventive measures have been taken to prevent or minimise damage in
such territory including the territorial sea or in such area, actions for compensation may be brought against the owner
or other person providing financial security for the owner's liability only in the courts of any such States Parties.

2. Where an incident has caused damage exclusively outside the territory, including the territorial sea, of any State
and either the conditions for application of this Convention set out in Article 3(c) have been fulfilled or preventive
measures to prevent or minimise such damage have been taken, actions for compensation may be brought against the
owner or other person providing financial security for the owner's liability only in the courts of:

(a) the State Party where the ship is registered or, in the case of an unregistered ship, the State Party whose flag the ship

is entitled to fly; or

(b) the State Party where the owner has habitual residence or where the principal place of business of the owner is

established; or

(c) the State Party where a fund has been constituted in accordance with Article 9(3).

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3.

Reasonable notice of any action taken under paragraph 1 or 2 shall be given to the defendant.

Each State Party shall ensure that its courts have jurisdiction to entertain actions for compensation under this

4.
Convention.

After a fund under Article 9 has been constituted by the owner or by the insurer or other person providing finan-
5.
cial security in accordance with Article 12, the courts of the State in which such fund is constituted shall have exclusive
jurisdiction to determine all matters relating to the apportionment and distribution of the fund.

Jurisdiction in respect of action against the HNS Fund or taken by the HNS Fund

Article 39

1.
Subject to the subsequent provisions of this Article, any action against the HNS Fund for compensation under
Article 14 shall be brought only before a court having jurisdiction under Article 38 in respect of actions against the
owner who is liable for damage caused by the relevant incident or before a court in a State Party which would have been
competent if an owner had been liable.

In the event that the ship carrying the hazardous or noxious substances which caused the damage has not been

2.
identified, the provisions of Article 38(1), shall apply mutatis mutandis to actions against the HNS Fund.

Each State Party shall ensure that its courts have jurisdiction to entertain such actions against the HNS Fund as are

3.
referred to in paragraph 1.

4. Where an action for compensation for damage has been brought before a court against the owner or the owner's
guarantor, such court shall have exclusive jurisdiction over any action against the HNS Fund for compensation under
the provisions of Article 14 in respect of the same damage.

5.
Each State Party shall ensure that the HNS Fund shall have the right to intervene as a party to any legal proceed-
ings instituted in accordance with this Convention before a competent court of that State against the owner or the
owner's guarantor.

Except as otherwise provided in paragraph 7, the HNS Fund shall not be bound by any judgement or decision in

6.
proceedings to which it has not been a party or by any settlement to which it is not a party.

7. Without prejudice to the provisions of paragraph 5, where an action under this Convention for compensation for
damage has been brought against an owner or the owner's guarantor before a competent court in a State Party, each
party to the proceedings shall be entitled under the national law of that State to notify the HNS Fund of the proceedings.
Where such notification has been made in accordance with the formalities required by the law of the court seised and in
such time and in such a manner that the HNS Fund has in fact been in a position effectively to intervene as a party to
the proceedings, any judgement rendered by the court in such proceedings shall, after it has become final and enforce-
able in the State where the judgement was given, become binding upon the HNS Fund in the sense that the facts and
findings in that judgement may not be disputed by the HNS Fund even if the HNS Fund has not actually intervened in
the proceedings.

Recognition and enforcement

Article 40

Any judgement given by a court with jurisdiction in accordance with Article 38, which is enforceable in the State

1.
of origin where it is no longer subject to ordinary forms of review, shall be recognised in any State Party, except:

(a) where the judgement was obtained by fraud; or

(b) where the defendant was not given reasonable notice and a fair opportunity to present the case.

A judgement recognised under paragraph 1 shall be enforceable in each State Party as soon as the formalities

2.
required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.

3.
Subject to any decision concerning the distribution referred to in Article 14(6), any judgement given against the
HNS Fund by a court having jurisdiction in accordance with Article 39(1) and (3) shall, when it has become enforceable
in the State of origin and is in that State no longer subject to ordinary forms of review, be recognised and enforceable in
each State Party.

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Subrogation and recourse

Article 41

The HNS Fund shall, in respect of any amount of compensation for damage paid by the HNS Fund in accordance
1.
with Article 14(1), acquire by subrogation the rights that the person so compensated may enjoy against the owner or
the owner's guarantor.

2.
Nothing in this Convention shall prejudice any rights of recourse or subrogation of the HNS Fund against any
person, including persons referred to in Article 7(2)(d), other than those referred to in the previous paragraph, in so far
as they can limit their liability. In any event the right of the HNS Fund to subrogation against such persons shall not be
less favourable than that of an insurer of the person to whom compensation has been paid.

3. Without prejudice to any other rights of subrogation or recourse against the HNS Fund which may exist, a State
Party or agency thereof which has paid compensation for damage in accordance with provisions of national law shall
acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

Supersession clause

Article 42

This Convention shall supersede any convention in force or open for signature, ratification or accession at the date on
which this Convention is opened for signature, but only to the extent that such convention would be in conflict with it;
however, nothing in this Article shall affect the obligations of States Parties to States not party to this Convention arising
under such convention.

CHAPTER V

TRANSITIONAL PROVISIONS

Information on contributing cargo

Article 43

When depositing an instrument referred to in Article 45(3), and annually thereafter until this Convention enters into
force for a State, that State shall submit to the Secretary-General data on the relevant quantities of contributing cargo
received or, in the case of LNG, discharged in that State during the preceding calendar year in respect of the general
account and each separate account

First session of the Assembly

Article 44

The Secretary-General shall convene the first session of the Assembly. This session shall take place as soon as possible
after the entry into force of this Convention and, in any case, not more than 30 days after such entry into force.

CHAPTER VI

FINAL CLAUSES

Signature, ratification, acceptance, approval and accession

Article 45

This Convention shall be open for signature at the Headquarters of the Organisation from 1 October 1996 to 30

1.
September 1997 and shall thereafter remain open for accession.

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2.

States may express their consent to be bound by this Convention by:

(a) signature without reservation as to ratification, acceptance or approval; or

(b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or

(c) accession.

Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with

3.
the Secretary-General.

Entry into force

Article 46

1.

This Convention shall enter into force 18 months after the date on which the following conditions are fulfilled:

(a) at least 12 States, including four States each with not less than 2 million units of gross tonnage, have expressed their

consent to be bound by it, and

(b) the Secretary-General has received information in accordance with Article 43 that those persons in such States who
would be liable to contribute pursuant to Article 18(1)(a) and (c) have received during the preceding calendar year a
total quantity of at least 40 million tonnes of cargo contributing to the general account.

2.
For a State which expresses its consent to be bound by this Convention after the conditions for entry into force
have been met, such consent shall take effect three months after the date of expression of such consent, or on the date
on which this Convention enters into force in accordance with paragraph 1, whichever is the later.

Revision and amendment

Article 47

1.

A conference for the purpose of revising or amending this Convention may be convened by the Organisation.

The Secretary-General shall convene a conference of the States Parties to this Convention for revising or amending

2.
the Convention, at the request of six States Parties or one-third of the States Parties whichever is the higher figure.

Any consent to be bound by this Convention expressed after the date of entry into force of an amendment to this

3.
Convention shall be deemed to apply to the Convention as amended.

Amendment of limits

Article 48

1. Without prejudice to the provisions of Article 47, the special procedure in this Article shall apply solely for the
purposes of amending the limits set out in Article 9(1) and Article 14(5).

2.
Upon the request of at least one half, but in no case less than six, of the States Parties, any proposal to amend the
limits specified in Article 9(1), and Article 14(5), shall be circulated by the Secretary-General to all Members of the Orga-
nisation and to all Contracting States.

Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organisation

3.
(the Legal Committee) for consideration at a date at least six months after the date of its circulation.

All Contracting States, whether or not Members of the Organisation, shall be entitled to participate in the proceed-

4.
ings of the Legal Committee for the consideration and adoption of amendments.

5.
Amendments shall be adopted by a two-thirds majority of the Contracting States present and voting in the Legal
Committee, expanded as provided in paragraph 4, on condition that at least one half of the Contracting States shall be
present at the time of voting.

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6. 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
established in Article 9(1), and those in Article 14(5).

7.

(a) No amendment of the limits under this Article may be considered less than five years from the date this Conven-
tion was opened for signature nor less than five years from the date of entry into force of a previous amendment
under this Article.

(b) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Convention
increased by six percent per year calculated on a compound basis from the date on which this Convention was
opened for signature.

(c) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Convention

multiplied by three.

8.
Any amendment adopted in accordance with paragraph 5 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 no less than one-fourth of the States which were Contracting States at the time of
the adoption of the amendment have communicated to the Secretary-General 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 accordance with paragraph 8 shall enter into force 18 months

9.
after its acceptance.

10.
All Contracting States shall be bound by the amendment, unless they denounce this Convention in accordance
with Article 49(1) and (2), at least six months before the amendment enters into force. Such denunciation shall take
effect when the amendment enters into force.

11. When an amendment has been adopted 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 accepted in
accordance with paragraph 8. In the cases referred to in this paragraph, a State becomes bound by an amendment when
that amendment enters into force, or when this Convention enters into force for that State, if later.

Denunciation

Article 49

This Convention may be denounced by any State Party at any time after the date on which it enters into force for

1.
that State Party.

2.

Denunciation shall be effected by the deposit of an instrument of denunciation with the Secretary-General.

Denunciation shall take effect 12 months, or such longer period as may be specified in the instrument of denuncia-

3.
tion, after its deposit with the Secretary-General.

4.
Notwithstanding a denunciation by a State Party pursuant to this Article, any provisions of this Convention
relating to obligations to make contributions under Articles 18, 19 or Article 21(5) in respect of such payments of
compensation as the Assembly may decide relating to an incident which occurs before the denunciation takes effect shall
continue to apply.

Extraordinary sessions of the Assembly

Article 50

1.
Any State Party may, within 90 days after the deposit of an instrument of denunciation the result of which it
considers will significantly increase the level of contributions from the remaining States Parties, request the Director to
convene an extraordinary session of the Assembly. The Director shall convene the Assembly to meet not less than 60
days after receipt of the request.

2.
The Director may take the initiative to convene an extraordinary session of the Assembly to meet within 60 days
after the deposit of any instrument of denunciation, if the Director considers that such denunciation will result in a
significant increase in the level of contributions from the remaining States Parties.

3.
If the Assembly, at an extraordinary session, convened in accordance with paragraph 1 or 2 decides that the
denunciation will result in a significant increase in the level of contributions from the remaining States Parties, any such
State may, not later than 120 days before the date on which the denunciation takes effect, denounce this Convention
with effect from the same date.

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Cessation

Article 51

1.

This Convention shall cease to be in force:

(a) on the date when the number of States Parties falls below six; or

(b) 12 months after the date on which data concerning a previous calendar year were to be communicated to the
Director in accordance with Article 21, if the data shows that the total quantity of contributing cargo to the general
account in accordance with Article 18(1)(a) and (c) received in the States Parties in that preceding calendar year was
less than 30 million tonnes.

Notwithstanding (b),
if the total quantity of contributing cargo to the general account in accordance with Article
18(1)(a) and (c) received in the States Parties in the preceding calendar year was less than 30 million tonnes but more
than 25 million tonnes, the Assembly may, if it considers that this was due to exceptional circumstances and is not likely
to be repeated, decide before the expiry of the abovementioned 12-month period that the Convention shall continue to
be in force. The Assembly may not, however, take such a decision in more than two subsequent years.

States which are bound by this Convention on the day before the date it ceases to be in force shall enable the HNS
2.
Fund to exercise its functions as described under Article 52 and shall, for that purpose only, remain bound by this
Convention.

Winding up of the HNS fund

Article 52

1.

If this Convention ceases to be in force, the HNS Fund shall nevertheless:

(a) meet its obligations in respect of any incident occurring before this Convention ceased to be in force; and

(b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obli-

gations under (a), including expenses for the administration of the HNS Fund necessary for this purpose.

2.
The Assembly shall take all appropriate measures to complete the winding up of the HNS Fund including the
distribution in an equitable manner of any remaining assets among those persons who have contributed to the HNS
Fund.

3.

For the purposes of this Article the HNS Fund shall remain a legal person.

Depositary

Article 53

1.

2.

This Convention and any amendment adopted under Article 48 shall be deposited with the Secretary-General.

The Secretary-General shall:

(a) inform all States which have signed this Convention or acceded thereto, and all Members of the Organisation, of:

(i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with

the date thereof;

(ii) the date of entry into force of this Convention;

(iii) any proposal to amend the limits on the amounts of compensation which has been made in accordance with

Article 48(2);

(iv) any amendment which has been adopted in accordance with Article 48(5);

(v) any amendment deemed to have been accepted under Article 48(8), together with the date on which that

amendment shall enter into force in accordance with paragraphs 9 and 10 of that Article;

(vi) the deposit of any instrument of denunciation of this Convention together with the date on which it is received

and the date on which the denunciation takes effect; and

(vii) any communication called for by any Article in this Convention; and

(b) transmit certified true copies of this Convention to all States which have signed this Convention or acceded thereto.

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As soon as this Convention enters into force, a certified true copy thereof shall be transmitted by the depositary to
3.
the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the
Charter of the United Nations.

Languages

Article 54

This Convention is established in a single original
languages, each text being equally authentic.

in the Arabic, Chinese, English, French, Russian and Spanish

DONE at London this third day of May one thousand nine hundred and ninety-six.

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

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ANNEX I

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ANNEX II

REGULATIONS FOR THE CALCULATION OF ANNUAL CONTRIBUTIONS TO THE GENERAL ACCOUNT

1.

The fixed sum referred to in Article 17(3) shall be determined for each sector in accordance with these regulations.

2. When it is necessary to calculate contributions for more than one sector of the general account, a separate fixed
sum per unit of contributing cargo shall be calculated for each of the following sectors as may be required:

Regulation 1

(a) solid bulk materials referred to in Article 1(5)(a)(vii);

(b) oil, if the operation of the oil account is postponed or suspended;

(c) LNG, if the operation of the LNG account is postponed or suspended;

(d) LPG, if the operation of the LPG account is postponed or suspended;

(e) other substances.

Regulation 2

For each sector, the fixed sum per unit of contributing cargo shall be the product of the levy per HNS point and

1.
the sector factor for that sector.

The levy per HNS point shall be the total annual contributions to be levied to the general account divided by the

2.
total HNS points for all sectors.

The total HNS points for each sector shall be the product of the total volume, measured in metric tonnes, of

3.
contributing cargo for that sector and the corresponding sector factor.

A sector factor shall be calculated as the weighted arithmetic average of the claims/volume ratio for that sector for

4.
the relevant year and the previous nine years, according to this regulation.

5.

Except as provided in paragraph 6, the claims/volume ratio for each of these years shall be calculated as follows:

(a) established claims, measured in units of account converted from the claim currency using the rate applicable on the
date of the incident in question, for damage caused by substances in respect of which contributions to the HNS Fund
are due for the relevant year; divided by

(b) the volume of contributing cargo corresponding to the relevant year.

In cases where the information required in paragraphs 5(a) and (b) is not available, the following values shall be

6.
used for the claims/volume ratio for each of the missing years:

(a) solid bulk materials referred to in Article 1(5)(a)(vii)

(b) oil, if the operation of the oil account is postponed

(c) LNG, if the operation of the LNG account is postponed

(d) LPG, if the operation of the LPG account is postponed

0

0

0

0

(e) other substances
The arithmetic average of the 10 years shall be weighted on a decreasing linear scale, so that the ratio of the rele-
7.
vant year shall have a weight of 10, the year prior to the relevant year shall have a weight of nine, the next preceding
year shall have a weight of eight, and so on, until the 10th year has a weight of one.

0,0001

If the operation of a separate account has been suspended, the relevant sector factor shall be calculated in accor-

8.
dance with those provisions of this regulation which the Assembly shall consider appropriate.