Proposal for a Council Decision authorizing the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxemburg, in the interest of the European Community, to accede to the underlying instruments
Date: 2003-09-08
Institutions: European Commission
Subjects: Austria, Luxembourg, help for victims, indemnification, international convention, oil pollution, pollution from ships

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 08.09.2003
COM(2003) 534 final

2003/0209 (AVC)

Proposal for a

COUNCIL DECISION

authorizing the Member States to sign, ratify or accede to, in the interest of the
European Community, the Protocol of 2003 to the International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage,
1992, and authorising Austria and Luxemburg, in the interest of the European
Community, to accede to the underlying instruments

(presented by the Commission)

EXPLANATORY MEMORANDUM

The existing international regime

Compensation  of  damage  caused  by  oil  pollution  by  ships  is  regulated  by  two  international
conventions.  The  1969  International  Convention  on  Civil  Liability  for  Oil  Pollution  (CLC)
and the 1971 International Convention setting up the Oil Pollution Compensation Fund (Fund
Convention)  establish  a  two-tier  liability  system,  which  builds  upon  a  strict  but  limited
liability  for  the  registered  shipowner  and  a  Fund,  financed  by  oil  receivers,  which  provides
compensation to victims of oil pollution damage who cannot obtain full compensation for the
damage from the shipowner.  The CLC  Convention entered  into  force in 1975 and  the  Fund
Convention  in  1978.  This  regime  was  revised  in  1992,  whereby  the  two  conventions  were
modified by protocols to them. The 1992 Protocols to the CLC and Fund Conventions entered
into  force  in  1996.  All  EU  Member  States  with  a  coastline  have  become  parties  to  the  two
1992 Protocols.

The first liability tier, the liability of the registered shipowner, is governed by the CLC. The
shipowner’s liability is strict and thus not depending on fault or negligence on his part. The
owner is normally allowed to limit his liability to an amount which is linked to the tonnage of
the ship, presently maximum EUR 72 million for the biggest ships. The shipowner loses the
right  to  limit  his  liability  only  if  it  is  proved  that  the  pollution  damage  “resulted  from  his
personal act or omission, committed with the intent to cause damage, or recklessly and with
knowledge  that  such  damage  would  probably  result”.  The  CLC  also  requires  shipowners  to
maintain liability insurance and gives claimants the right of direct action  against the insurer
up to the limits of the shipowner’s liability.

The CLC regime is supplemented by the International Oil Pollution Compensation Fund (the
IOPC  Fund),  which  was  established  through  the  Fund  Convention  in  order  to  compensate
victims  when  the  shipowner’s  liability  is  insufficient  to  cover  the  damage.  Recourse  to  the
IOPC Fund may take place  in three cases. The most  common is  where the damage exceeds
the shipowner’s maximum liability. The second case is where the shipowner can invoke any
of the defences allowed in the CLC.1 The last case is where the shipowner (and his insurer)
are  financially  incapable  of  meeting  their  obligations.  The  maximum  compensation  by  the
IOPC  Fund  is  currently  around  EUR  162  million.  The  IOPC  Fund  is  financed  by
contributions from companies or other entities receiving oil carried by sea. In the event of an
oil  spill,  thus,  all  oil  receivers  world-wide  which  are  established  in  the  States  parties  to  the
Fund  Convention  will  contribute  to  the  compensation  as  well  as  to  the  administrative
expenses of the Fund, wherever the pollution damage has occurred. The IOPC Fund will not
pay compensation if the pollution damage resulted from an act of war or was caused by a spill
from a warship. It also has to be proved that the oil originated from a tanker.

1

According  to  Article  III.2  of  the  CLC  the  shipowner  is  exempted  from  liability  if  he  proves  that  the
damage:
(a)  resulted  from  an  act  of  war,  hostilities,  civil  war,  insurrection  or  a  natural  phenomenon  of  an
exceptional, inevitable and irresistible character, or
(b) was wholly caused by an act or omission done with intent to cause damage by a third party, or
(c)  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.

2

                                                
Victims  of  oil  spills  may  present  their  claims  directly  against  the  IOPC  Fund  and,  to  the
extent  claims  are  justified  and  meet  the  relevant  criteria,  the  Fund  will  compensate  the
claimant  directly.  If  the  total  of  approved  claims  exceeds  the  maximum  limit  of  the  IOPC
Fund  all  claims  will  be  reduced  proportionately.  Claimants  may  also  decide  to  pursue  their
claims before the courts of the State where the damage occurred. Since it was first established
in 1978, the IOPC Fund has dealt with more than 100 cases, most of which have been within
the  limits  of  compensation  and  thus  fully  compensated  according  to  the  Fund’s  own
assessment as to the validity of claims.

Recently, however, the adequacy of the maximum compensation limits of the 1992 Fund has
been  questioned.  Following  the  Erika  accident  in  December  1999,  the  process  started
whereby  the  existing  limits  of  the  CLC  and  Fund  Conventions  were  to  be  increased,
according to  a  specific  simplified  amendment  procedure  envisaged  in  the  Conventions.  The
maximum  increase  under  this  procedure  depends  on  a  number  of  factors  and  will  not  at
present facilitate an increase of more than some 50% of the current limits. These amendments
will become applicable on 1 November 2003.

The Commission’s point of view

The Commission has considered that a 50% increase of the existing limits, providing a total of
some  EUR  250  million,  is  insufficient  to  guarantee  adequate  protection  for  victims  of  a
potential major oil spill in Europe. Therefore, the Commission in December 2000 proposed a
Regulation  to  complement  the  existing  international  regime  by  creating  a  European
supplementary fund, the COPE Fund, to compensate victims of oil spills in European waters.2
The  COPE  Fund  would  only  compensate  victims  whose  claims  have  been  considered
justified,  but  who  still  have  been  unable  to  obtain  full  compensation  by  the  international
regime, due to insufficient limits of compensation. Compensation from the COPE fund would
thus be based on the same principles and  rules as the  current international fund system, but
subject  to  a  ceiling  which  is  deemed  to  be  sufficient  for  any  foreseeable  disaster,  i.e.  EUR
1,000 million.

Developments within the EU institutions

To  date,  the  proposal  of  the  Commission  has  been  approved,  subject  to  a  number  of
amendments, by the European Parliament,3 but the Council has not reached a position on it.
While  the  majority  of  Member  States  agreed  on  the  objective  of  creating  a  higher  level  of
maximum cover through a top-up mechanism and the underlying  principles of  the proposed
regulation,  the  general  view  among  Member  States  has  been  that  it  would  be  preferable  to
address this matter at an international level, if possible. The Transport Council of December
2000  adopted  conclusions  on  the  necessity  to  achieve  ameliorations  to  the  existing
international regime, including “a substantial increase in liability and compensation ceilings”.
In  June  2001  the  Council  adopted  a  common  approach  where  Member  States  undertook  to
support and participate in  a supplementary  oil  pollution  compensation  regime  which  should
“provide for full compensation”.

2

3

COM(2000)802 final, 6.12.2000.
The proposed amendments were adopted by the European Parliament on 13 June 2001.

3

                                                
Following the Prestige accident in November 2002, the Council took a stronger stance on the
need  for  a  top-up  compensation  arrangement.  Most  recently,  the  European  Summit  on
21 March 2003 confirmed the views of various Council meetings in December in calling for:

“in  terms  of  compensation  for  the  victims  of  pollution,  including  environmental
damage, Member  States  to  pursue  within  the  forthcoming  diplomatic  conference  at
the  IMO  in  May  an  increase  in  the  current  ceiling  on  compensation  to  1  billion
Euros; failing  a  positive outcome within  the  IMO  to  work  on  the  existing  proposal
for a Regulation establishing a special European fund endowed with 1 billion euros
with  a  view  to  the  creation  of  the  fund  before  the  end  of  the  year  and  drawing  as
much as possible on private funding”

As  to  the  timing,  paragraph  12  of  the  Transport  Council  Conclusions  of  6  December  2002,
subsequently endorsed by the Copenhaguen Summit a week later, was even more clear:

the  support  of  Member  States 

to  establish  a  supplementary
REAFFIRMS 
compensation  fund,  developed  in  the  IMO,  to  the  benefit  of  the  victims  of  oil
pollution, which should be able to cover any future oil-spills up to EUR 1 000 million
in  the  waters  of  the  Member  States  of  the  EU  foreseeing  a  rapid  mechanism  for
payments  and  being  operational  by  the  end  of  2003,  and  the  intention  of  those
Member  States,  which  are  parties  to  the  existing  global  compensation  regimes,  to
ratify  the  new  supplementary  fund.  AGREES,  in  the  event  that  the  supplementary
compensation  fund  is  not  established,  to  examine  immediately  a  regulation  on  the
establishment  of  a  fund  for  the  compensation  of  oil  pollution  damage  in  European
waters, with the aim of establishing this fund before the end of 2003

International developments

An  intersessional  working  group  was  established  by  the  IOPC  Fund  in  February  2000  to
discuss the need to  improve  the  existing  international  regime for  liability  and compensation
for  oil  pollution  damage.  Early  on  in  the  discussions,  the  creation  of  an  optional
Supplementary  Fund emerged  as a key  item on the  agenda of  the working  group. Resulting
from this, a draft Protocol was approved by the 1992 Fund’s Assembly on 19 October 2001.
The Protocol to the  International Convention on the  Establishment  of  an  International  Fund
for  Compensation  for  Oil  Pollution  Damage,  1992  (hereinafter  ‘the  Supplementary  Fund
Protocol’)  was  finally  adopted  by  a  Diplomatic  Conference  in  International  Maritime
Organization on 16 May 2003.

In substance the new Supplementary Fund bears a strong resemblance with the COPE Fund as
proposed by the Commission. While the administrative solutions are different, the objective,
to provide supplementary compensation in respect of claims which have been established by
the 1992 Fund, is the same. The Supplementary Fund will thus be very closely linked to the
1992  Fund  regime  and  membership  in  the  latter  is  a  condition  for  accepting  the
Supplementary  Fund Protocol. The maximum limits of compensation by  the  Supplementary
Fund have been established at 750 million SDR, which at the time of adoption corresponded
to  some  920  million  EUR  or  1,000  million  USD.  It  is  likely  that  its  membership  will  be
considerably narrower than that of the 1992 Fund, as many States Parties to the 1992 regime
do not presently consider that they need such supplementary protection.

4

Community legislation

So far, compensation for oil pollution is only regulated by means of international conventions
and  national  legislation.  There  are  no  adopted  Community  rules  regulating  specifically  the
matter  of  compensation  for  oil  pollution  damage.  As  shown  above,  however,  there  is  a
significant  Community  interest  in  matters  related  to  the  supplementary  compensation  of  oil
pollution.

In  addition,  the  Supplementary  Fund  Protocol  includes  provisions  on  the  jurisdiction,
recognition  and  enforcement  of  judgments  relating  to  the  application  of  the  Convention.
These articles affect provisions of Community law, namely Council Regulation 44/2001 of 22
December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters.4

Council Regulation 44/2001

Council  Regulation  44/2001  sets  out  common  rules  on  jurisdiction  and  the  recognition  and
enforcement of judgments in civil and commercial matters. The Regulation binds all Member
States except  for Denmark. The 1968  Brussels Convention  remains  in  force  in  the  relations
between Denmark and the other Member States.

The  common  rules  on  jurisdiction  of  Regulation  44/2001  apply  when  the  defendant  is
domiciled  in  one  of  the  Member  States  bound  by  the  Regulation,  while  a  defendant  not
domiciled  in  a  Member  State  may  be  brought  before  the  courts  of  each  Member  State  in
accordance with its national rules of jurisdiction. The jurisdiction regime is based in the first
place on the domicile of the defendant. In addition, in matters relating to tort, delict or quasi-
delict,  a  person  domiciled  in  a  Member  State  may  be  sued  in  the  Member  State  where  the
harmful event occurred or may occur. In matters relating to insurance, an insurer domiciled in
a Member State may be sued (a) in the courts of the Member State where he is domiciled, or
(b) in the Member State where the plaintiff is domiciled, in the case of actions brought by the
policyholder,  the  insured  or  a  beneficiary,  or  (c)  if  he  is  a  co-insurer,  in  the  courts  of  a
Member  State  in  which  proceedings  are  brought  against  the  leading  insurer.  In  respect  of
liability  insurance,  the  insurer  may  in  addition  be  sued  in  the  courts  of  the  place  where  the
harmful event occurred, as well as, if the law of the court permits it, be joined in proceedings
brought by the injured party against the insured.

Regulation 44/2001 stipulates  that a judgment  given in a Member State  shall  be  recognized
and enforced in other Member States without any special procedure being required. However,
a  limited  number  of  grounds  of  non-recognition  are  provided  to  take  into  account  public
policy  considerations,  respect  for  the  rights  of  defense  and  the  existence  of  certain
irreconcilable judgments.

The  regime  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  of  the
Supplementary Protocol

In  contrast  to  the  multiple  grounds  of  jurisdiction  available  under  Regulation  44/2001,
Article 7  of  the  Supplementary  Fund  Protocol,  as  a  main  rule,  mandates  the  exclusive
jurisdiction  of  the  State  Party  where  pollution  damage  occurred.  This  is  done  through  a
reference to  the  corresponding  articles of  the 1992  CLC  and  Fund  Conventions.  As  regards
actions  involving  the  Supplementary  Fund,  Articles  7.2  and  7.3  provide  for  a  similarly

4

OJ L 12, 16.1.2001, p. 1.

5

                                                
restrictive  jurisdiction  regime.  The  Supplementary  Fund  Protocol  further  provides  that  the
courts  of  the  State  where  the  shipowner,  or  the  insurer,  has  constituted  a  fund  in  order  to
benefit from the  right to limit the liability,  shall  have  exclusive jurisdiction to determine all
matters relating to the apportionment and distribution of the fund.

Moreover, Article 8 of the Supplementary Fund Protocol, by reference to article X of the CLC
Convention, requires the recognition of a judgment given by a Court with jurisdiction where it
is no longer subject to ordinary forms of review except where the judgment was obtained by
fraud,  or  where  the  defendant  was  not  given  reasonable  notice  and  a  fair  opportunity  to
present his case. Judgments shall be enforceable in each State Party as soon as the formalities
required  in  the  State  where  the  judgment  was  given  have  been  complied  with.  Those
formalities shall not permit the merits of the case to be re-opened.

Community competence with respect to the Supplementary Fund Protocol

There is exclusive Community competence in matters regulated by the Supplementary Fund
Protocol.  Its  provisions on  jurisdiction,  recognition and enforcement  contained  in  Articles  7
and 8 of the Protocol affect the corresponding rules of Council Regulation 44/2001.

In  accordance  with  the  case  law  of  the  Court  of  Justice,  Member  States,  whether  acting
individually or collectively, lose their right to assume obligations with third countries as and
when common rules which could be affected by those obligations come into being. It follows
that only the Community is competent for the negotiation, conclusion and fulfillment of such
international commitments.

In  the  view  of  the  Commission,  the  articles  dealing  with  the  jurisdiction,  recognition  and
enforcement  of  judgments  should  be  compatible,  to  the  extent  possible,  with  Community
legislation in this area. In this regard, however, the very specific nature of the Supplementary
Protocol needs to be acknowledged. As outlined above, the purpose of the Protocol is only to
build  upon  an  existing  compensation  regime  and  to  provide  additional  funds  for  settling
claims that are not fully compensated by the 1992 Fund Convention. It will never get involved
in compensation of claims  that  have not  been  dealt  with  by  the  1992  Fund.  As  regards,  the
competent jurisdiction, the Supplementary Fund is therefore inextricably linked with the 1992
regime.  For  practical  reasons  the  provisions  on  jurisdiction  should  therefore  match  those  of
the 1992 Fund Convention, which has not been revised recently. The variation between the oil
pollution system and the Community regime as regards the competent jurisdiction should thus
not be addressed in the context of the Supplementary Fund Protocol.

As to the rules on the recognition and enforcement of judgments, the Commission considered
that a continued application of Chapter III of Regulation 44/2001 between Member States is
essential, when it comes to the recognition and enforcement of judgments given by a court of
a Member State in another Member State.

In light of such considerations, the Commission asked the Council for a mandate to negotiate
certain parts of the Supplementary Protocol. The proposed mandate included the negotiation
of  an  article  providing  for  the  possibility  for  the  Community  to  become  a  party  to  the
Protocol.  In  addition,  there  was,  in  the  view  of  the  Commission,  a  need  for  a  mechanism
ensuring  a  continued  possibility  to  apply  the  Community  rules  on  the  recognition  and
enforcement  of  judgments.  By  contrast,  the  provisions  on  jurisdictions  were  not  considered
necessary  to  revise  in  the  Supplementary  Fund  Protocol.  However,  the  Commission  added,
should  the  1992  CLC  and  Fund  Conventions  be  re-opened  for  revision,  which  is  not  an
unlikely  scenario  for  the  coming  years,  there  is  a  need  to  analyse  in  great  detail  the

6

compatibility  between  Regulation  44/2001  and  the  international  oil  pollution  compensation
regime and the reasons therefore.

A  negotiation  mandate  relating  to  the  Supplementary  Fund  Protocol  was  adopted  on
19 December  2002  by  the  Justice  and  Home  Affairs  Council.  This  mandate  did  not,  as  the
Commission had proposed, include the negotiation of an accession clause for the Community,
but it did hold that:

“the Commission should ensure that the regime for recognition and enforcement of
judgments,  as  laid  down  by  Regulation  44/2001,  shall  continue  to  apply  when
judgements  given  by  a  court  of  a  Member  State  are  recognised  and  enforced  in
another Member State. In this respect the necessary contacts with third States should
be  taken  by  the  Commission  well  in  advance  of  the  Diplomatic  Conference
12-16 May 2003.”

Following  discussions  with  Member  States  and  third  States,  the  Commission  submitted  a
proposal  to  the  Diplomatic  Conference  to  add  a  new  paragraph  2  to  draft  Article  8  of  the
Supplementary Fund Protocol.5 The proposed new paragraph, read as follows:

“2. A State Party to this Protocol may apply other rules for the recognition and enforcement
of  judgments,  provided  that  their  effect  is  to  ensure  that  judgments  are  recognised  and
enforced at least to the same extent as under paragraph 1.”

The addition of this paragraph was accepted by the Diplomatic Conference.

Consequently, the text of the Supplementary  Protocol  does not  allow  for  the Community as
such to conclude the Protocol. In order  to  safeguard the Community interests in view  of  its
external  competence,  while  at  the  same  time  enabling  the  Member  States  to  ratify  the
Protocol, a Council decision to authorise Member States to conclude the Protocol is proposed.
The  Council  could  thus  exceptionally  authorize  the  Member  States,  with  the  exception  of
Denmark,  to  sign  and  ratify  the  Supplementary  Fund  Protocol  in  the  interest  of  the
Community.

This measure should be considered to be an interim solution. In the longer term, at the earliest
opportunity,  the  Supplementary  Fund  Protocol,  and  the  underlying  instruments,  should  be
revised in order to allow the European Community to conclude the instruments.

In light of the commitment made by EU Transport Ministers and Heads of State/Government,
to have the new fund fully operational before the end of 2003, a very tight schedule has to be
applied  for  the  ratification  of  the  new  Protocol.  The  Supplementary  Fund  Protocol  will,
according to its Article 21, enter into force three months after eight States, representing a total
of  at  least  450  million  tonnes  of  contributing  oil,  have  become  Contracting  Parties  to  it.
Action by EU Member States alone is thus sufficient to bring the Protocol into operation.

5

IMO Document LEG/CONF.14/7

7

                                                
The special case of Austria and Luxemburg

Two  Member  States  are  not  yet  Contracting  Parties  to  the  underlying  CLC  and  Fund
Conventions, which is a precondition for  concluding the Supplementary Fund Protocol. The
underlying CLC and Fund conventions raise similar issues with respect to the relationship to
Regulation 44/2001. On 19 December 2002 the Council invited the Commission to prepare as
soon  as  possible  an  authorisation  for  Austria  and  Luxemburg  to  accede  to  the  underlying
instruments.  Therefore,  it  is  proposed  that  the  present  decision  should  also  include  an
authorisation for these two Member States to accede to the CLC and Fund Conventions. Since
this  accession  procedure  will  inevitably  take  some  time,  it  is  proposed  that  Austria  and
Luxemburg  should  sign,  ratify  or  accede  to  the  Supplementary  Fund  Protocol  by
31 December 2005.

Conclusion

For these reasons, the Commission recommends that the Council adopt the attached decision.

Neither  the  decision  itself  nor  the  proposed  conclusion  by  Member  States  of  the
Supplementary Fund Protocol will have any implications on the Community budget.    

8

2003/0209 (AVC)

Proposal for a

COUNCIL DECISION

authorizing the Member States to sign, ratify or accede to, in the interest of the
European Community, the Protocol of 2003 to the International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage,
1992, and authorising Austria and Luxemburg, in the interest of the European
Community, to accede to the underlying instruments

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Article 61(c),  Article  67(5),  Article  300(2)  first  subparagraph  and  Article  300(3),
second subparagraph thereof,

Having regard to the proposal from the Commission6,

Having regard to the assent of the European Parliament7,

Whereas:

(1)

(2)

(3)

(4)

6

7

8

The Protocol to the International Convention on the Establishment of an International
Fund  for  Compensation  for  Oil  Pollution  Damage,  1992  (hereinafter  ‘the
Supplementary  Fund  Protocol’) is  aimed  at ensuring  adequate,  prompt,  and  effective
compensation of persons who suffer damage caused by oil spills caused by tankers. By
significantly  raising  the  limits  of  compensation  available  in  the  present  international
system,  the  Supplementary  Fund  Protocol  addresses  one  of  the  most  significant
shortcomings in the international regulation of oil pollution liability.

Articles 7 and 8 of the Supplementary Fund Protocol affect Community 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 enforcement of judgments in civil and commercial matters.8

The  Community  and  the  Member  States  share  competence  for  subject  areas  covered
by the Supplementary Fund Protocol, the Community having exclusive competence in
relation to Articles 7 and 8 thereof;

Pursuant to the Supplementary Fund Protocol, only sovereign States may be party to
it; it  is not therefore possible for the  Community  to  ratify  or  accede  to  the  Protocol,
nor is there a prospect that it will be able to do so in the near future.

OJ C …, …, p. …
OJ C …, …, p. …
OJ L 12, 16.1.2001, p. 1.

9

                                                
(5)

(6)

(7)

(8)

(9)

The  Council  should  therefore  authorise  the  Member  States  to  sign  and  conclude  the
Supplementary Fund Protocol in the interest of the Community, under the conditions
set out in 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,

Only  Contracting  Parties  to  the  underlying  instruments  may  become  Contracting
Parties to the Supplementary Fund Protocol. Austria and Luxemburg are not currently
parties  to  the  underlying  instruments.  Since  the  underlying  instruments  contain
provisions affecting Regulation (EC) No 44/2001, Austria and Luxemburg should also
be authorised to accede to these instruments.

Member States should sign, ratify or accede to the Protocol as soon as possible and in
any case before the end of 2003.

The  situation  of  Austria  and  Luxemburg  is  different  in  that  they  cannot  become
Contracting Parties to the Supplementary Fund Protocol until they have acceded to the
underlying instruments. For this reason, Austria and Luxemburg should sign, ratify or
accede to the Supplementary Fund Protocol by 31 December 2005 at the latest.

HAS DECIDED AS FOLLOWS:

Article 1

1.

The Member States are hereby authorized to sign, ratify or accede to, in the interest
of the European Community, the Protocol of 2003 to the International Convention on
the  Establishment  of  an  International  Fund  for  Compensation  for  Oil  Pollution
Damage, 1992, (the ‘Supplementary Fund Protocol’) subject to the conditions set out
in the following Articles.

The text of the Supplementary Fund Protocol is attached in Annex 1 of this Decision.

2.

Austria and Luxemburg are also authorised to accede to the underlying instruments.

The  text  of  the  underlying  instruments  is  attached  in  Annexes  2  and  3  of  this
Decision.

3.

In this Decision, the term “underlying instruments” shall mean the Protocol of 1992
to amend the International Convention on Civil Liability for Oil Pollution Damage,
1969  and  the  Protocol  of  1992  to  amend  the  International  Convention  on  the
Establishment of an International Fund for Compensation for Oil Pollution Damage,
1971.

Article 2

When signing, ratifying or acceding to the instruments referred to in Article 1, Member States
shall inform the Secretary-General of the International Maritime Organization in writing that
such signature, ratification or accession has taken place in accordance with this Decision.

10

Article 3

Member States shall take the necessary steps to sign, ratify or otherwise express their consent
to be bound by the Supplementary Fund Protocol as soon as possible and in any case before
the end of 2003.

Austria and Luxemburg shall take the necessary steps to sign, ratify or otherwise express their
consent to be bound by the Supplementary Fund Protocol before 31 December 2005.

Article 4

Member States shall, at the earliest opportunity, use their best endeavours to ensure that the
Supplementary Fund Protocol, and the underlying instruments, are amended in order to allow
the Community to become a Contracting Party to them.

Done at Brussels,

For the Council
The President

11

ANNEX 1

PROTOCOL OF 2003 TO THE INTERNATIONAL CONVENTION ON THE
ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR
OIL POLLUTION DAMAGE, 19929

THE CONTRACTING STATES TO THE PRESENT PROTOCOL,

BEARING  IN  MIND  the  International  Convention  on  Civil  Liability  for  Oil  Pollution
Damage, 1992 (hereinafter “the 1992 Liability Convention”),

HAVING  CONSIDERED  the  International  Convention  on  the  Establishment  of  an
International Fund for Compensation for Oil Pollution Damage, 1992  (hereinafter “the 1992
Fund Convention”),

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

NOTING that the maximum compensation afforded by the 1992 Fund Convention might be
insufficient to meet compensation needs in certain circumstances in some Contracting States
to that Convention,

RECOGNIZING  that  a  number  of  Contracting  States  to  the  1992  Liability  and  1992  Fund
Conventions consider it necessary as a matter of urgency to make available additional funds
for compensation through the creation of a supplementary scheme to which States may accede
if they so wish,

BELIEVING  that  the  supplementary  scheme  should  seek  to  ensure  that  victims  of  oil
pollution damage are compensated in full for  their loss or  damage and should  also alleviate
the difficulties faced by victims in cases where there is a risk that the amount of compensation
available  under  the  1992  Liability  and  1992  Fund  Conventions  will  be  insufficient  to  pay
established  claims  in  full  and  that  as  a  consequence  the  International  Oil  Pollution
Compensation Fund, 1992, has decided provisionally that it will pay only a proportion of any
established claim,

CONSIDERING that accession to the supplementary scheme will be open only to Contracting
States to the 1992 Fund Convention,

9

It should be noted that while the Protocol text reproduced in this Annex is the text that was adopted by
the Diplomatic Conference on 16 May 2003, it is not the official text of the Protocol, which was not yet
available  at  the  time  of  adoption  of  this  proposal.  The  understanding  is  that  the  official  text,  once
available, will take precedence over the text reproduced in this Annex.

12

                                                
HAVE AGREED AS FOLLOWS:

General provisions
Article 1

For the purposes of this Protocol:

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

1.

“1992  Liability  Convention”  means  the  International  Convention  on  Civil  Liability
for Oil Pollution Damage, 1992;

“1992 Fund Convention”  means the  International  Convention  on  the  Establishment
of an International Fund for Compensation for Oil Pollution Damage, 1992;

“1992  Fund”  means  the  International  Oil  Pollution  Compensation  Fund,  1992,
established under the 1992 Fund Convention;

“Contracting  State”  means  a  Contracting  State  to  this  Protocol,  unless  stated
otherwise;

When  provisions  of  the  1992  Fund  Convention  are  incorporated  by  reference  into
this Protocol, “Fund” in that Convention means “Supplementary Fund”, unless stated
otherwise;

"Ship",  "Person",  "Owner",  "Oil",  "Pollution  Damage",  "Preventive  Measures"  and
"Incident" have the same meaning as in article I of the 1992 Liability Convention;

“Contributing  Oil”,  “Unit  of  Account”,  “Ton”,  “Guarantor”  and  “Terminal
installation”  have  the  same  meaning  as  in  article 1  of  the  1992  Fund  Convention,
unless stated otherwise;

"Established claim” means a claim which has been recognised by the 1992 Fund or
been accepted as admissible by decision of a competent court binding upon the 1992
Fund  not  subject  to  ordinary  forms  of  review  and  which  would  have  been  fully
compensated  if  the  limit  set  out  in  article 4,  paragraph 4,  of  the  1992  Fund
Convention had not been applied to that incident;

“Assembly”  means  the  Assembly  of  the  International  Oil  Pollution  Compensation
Supplementary Fund, 2003, unless otherwise indicated;

“Organization” means the International Maritime Organization;

“Secretary-General” means the Secretary-General of the Organization.

Article 2

An International Supplementary Fund for compensation for pollution damage, to be
named  “The  International  Oil  Pollution  Compensation  Supplementary  Fund,  2003”
(hereinafter “the Supplementary Fund”), is hereby established.

13

2.

The  Supplementary  Fund  shall  in  each  Contracting  State  be  recognized  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  Contracting
State  shall  recognize  the  Director  of  the  Supplementary  Fund  as  the  legal
representative of the Supplementary Fund.

Article 3

This Protocol shall apply exclusively:

(a)

to pollution damage caused:

(i)

in the territory, including the territorial sea, of a Contracting State, and

(ii)

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

(b)

to preventive measures, wherever taken, to prevent or minimize such damage.

Supplementary Compensation
Article 4

1.

2(a)

(b)

3.

The Supplementary  Fund  shall  pay  compensation  to  any  person  suffering  pollution
damage if such person has been unable to obtain full and adequate compensation for
an established claim for such damage under the terms of the 1992 Fund Convention,
because the total damage exceeds, or there is a risk that it will exceed, the applicable
limit  of  compensation  laid  down  in  article 4,  paragraph 4,  of  the  1992  Fund
Convention in respect of any one incident.

The  aggregate  amount  of  compensation  payable  by  the  Supplementary  Fund  under
this article shall in respect of any one incident be limited, so that the total sum of that
amount  together  with  the  amount  of  compensation  actually  paid  under  the  1992
Liability Convention and the 1992 Fund Convention within the scope of application
of this Protocol shall not exceed 750 million units of account.

The  amount  of  750 million  units  of  account  mentioned  in  paragraph 2(a)  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 determined by the Assembly of
the  1992  Fund  for  conversion  of  the  maximum  amount  payable  under  the  1992
Liability and 1992 Fund Conventions.

Where the amount of established claims against the Supplementary Fund exceeds the
aggregate amount of compensation payable under paragraph 2, 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
Protocol shall be the same for all claimants.

14

4.

The Supplementary Fund shall pay compensation in respect of established claims as
defined in article 1, paragraph 8, and only in respect of such claims.

Article 5

The Supplementary Fund shall pay compensation when the Assembly of the 1992 Fund has
considered that the total amount of the established claims exceeds, or there is a risk that the
total  amount  of  established  claims  will  exceed  the  aggregate  amount  of  compensation
available under article 4, paragraph 4, of the 1992 Fund Convention and that as a consequence
the Assembly of the 1992 Fund has decided provisionally or finally that payments will only
be made for a proportion of any established claim. The Assembly of the Supplementary Fund
shall then decide whether and to what extent the Supplementary Fund shall pay the proportion
of  any  established  claim  not  paid  under  the  1992  Liability  Convention  and  the  1992  Fund
Convention.

1.

2.

1.

2.

3.

Article 6

Subject  to  article 15,  paragraphs 2  and  3,  rights  to  compensation  against  the
Supplementary Fund shall be extinguished only if they are extinguished against the
1992 Fund under article 6 of the 1992 Fund Convention.

A claim made against the 1992 Fund shall be regarded as a claim made by the same
claimant against the Supplementary Fund.

Article 7

The provisions of article 7, paragraphs 1, 2, 4, 5 and 6, of the 1992 Fund Convention
shall apply to actions for compensation brought against the Supplementary  Fund in
accordance with article 4, paragraph 1, of this Protocol.

Where an action  for  compensation for  pollution  damage  has  been  brought  before  a
court competent under article IX of the 1992 Liability Convention against the owner
of a ship or his guarantor, such court shall have exclusive jurisdictional competence
over  any  action  against  the  Supplementary  Fund  for  compensation  under  the
provisions  of  article 4  of  this  Protocol  in  respect  of  the  same  damage.  However,
where  an  action  for  compensation  for  pollution  damage  under  the  1992  Liability
Convention  has  been  brought  before  a  court  in  a  Contracting  State  to  the  1992
Liability Convention but not to this Protocol, any action against the Supplementary
Fund under  article 4  of  this  Protocol shall at  the  option  of  the  claimant  be  brought
either before a court of the State where the Supplementary Fund has its headquarters
or before any court of a Contracting State to this Protocol competent under article IX
of the 1992 Liability Convention.

Notwithstanding  paragraph  1,  where  an  action  for  compensation  for  pollution
damage against the 1992 Fund has been brought before a court in a Contracting State
to the 1992 Fund Convention but not to this Protocol, any related action against the
Supplementary Fund shall, at the option of the claimant, be brought  either before  a
court of the State where the Supplementary Fund has its headquarters or before any
court of a Contracting State competent under paragraph 1.

15

1.

2.

1.

2.

3.

4.

1.

Article 8

Subject  to  any  decision  concerning  the  distribution  referred  to  in  article  4,
paragraph 3 of this Protocol, any judgment given against the Supplementary Fund by
a court having jurisdiction in accordance with article 7 of this Protocol, 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  recognized  and  enforceable  in  each  Contracting  State
on  the  same  conditions  as  are  prescribed  in  article  X  of  the  1992  Liability
Convention.

A  Contracting  State  may  apply  other  rules  for  the  recognition  and  enforcement  of
judgments, provided that their effect is to ensure that judgments are recognised and
enforced at least to the same extent as under paragraph 1.

Article 9

The  Supplementary  Fund  shall,  in  respect  of  any  amount  of  compensation  for
pollution  damage  paid  by  the  Supplementary  Fund  in  accordance  with  article  4,
paragraph  1,  of  this  Protocol,  acquire  by  subrogation  the  rights  that  the  person  so
compensated  may  enjoy  under  the  1992  Liability  Convention  against  the  owner  or
his guarantor.

The  Supplementary  Fund  shall  acquire  by  subrogation  the  rights  that  the  person
compensated  by  it  may  enjoy  under  the  1992  Fund  Convention  against  the  1992
Fund.

Nothing in this  Protocol shall prejudice  any  right of  recourse  or  subrogation  of  the
Supplementary  Fund  against  persons  other  than  those  referred  to  in  the  preceding
paragraphs. In any event the right of the Supplementary Fund to subrogation against
such person shall not be less favourable than that of an insurer of the person to whom
compensation has been paid.

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

Contributions
Article 10

Annual  contributions  to  the  Supplementary  Fund  shall  be  made  in  respect  of  each
Contracting  State  by  any person who,  in  the  calendar  year  referred  to  in  article 11,
paragraph 2(a) or (b), has received in total quantities exceeding 150,000 tons:

(a)

in the ports or terminal installations in the territory of that State contributing oil
carried by sea to such ports or terminal installations; and

16

2.

1.

(b)

in  any  installations  situated  in  the  territory  of  that  Contracting  State
contributing  oil  which  has  been  carried  by  sea  and  discharged  in  a  port  or
terminal installation of a non-Contracting State, provided that contributing oil
shall only be taken into account by virtue of this sub-paragraph on first receipt
in a Contracting State after its discharge in that non-Contracting State.

The provisions of article 10, paragraph 2, of the 1992 Fund Convention shall apply in
respect of the obligation to pay contributions to the Supplementary Fund.

Article 11

With a view to assessing the amount of annual contributions due, if any, and taking
account  of  the necessity  to  maintain  sufficient  liquid  funds,  the  Assembly  shall  for
each calendar year make an estimate in the form of a budget of:

(i)

Expenditure

(a)

(b)

costs  and  expenses  of  the  administration  of  the  Supplementary  Fund  in
the relevant year and any deficit from operations in preceding years;

payments to be made by the Supplementary Fund in the relevant year for
the  satisfaction  of  claims  against  the  Supplementary  Fund  due  under
article 4,  including  repayments  on  loans  previously  taken  by  the
Supplementary Fund for the satisfaction of such claims;

(ii)

Income

(a)

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

(b)

annual contributions, if required to balance the budget;

(c)

any other income.

2.

The  Assembly  shall  decide  the  total  amount  of  contributions  to  be  levied.  On  the
basis  of  that  decision,  the  Director  of  the  Supplementary  Fund  shall,  in  respect  of
each Contracting State, calculate for each person referred to in article 10, the amount
of that person’s annual contribution:

(a)

(b)

in  so  far  as  the  contribution  is  for  the  satisfaction  of  payments  referred  to  in
paragraph 1(i)(a)  on  the  basis  of  a  fixed  sum  for  each  ton  of  contributing  oil
received  in  the  relevant  State  by  such  person  during  the  preceding  calendar
year; and

in  so  far  as  the  contribution  is  for  the  satisfaction  of  payments  referred  to  in
paragraph 1(i)(b)  on  the  basis  of  a  fixed  sum  for  each  ton  of  contributing  oil
received by such person during the calendar  year preceding  that  in  which  the
incident  in  question  occurred,  provided  that  State  was  a  Contracting  State  to
this Protocol at the date of the incident.

3.

The sums referred to in paragraph 2 shall be arrived at by dividing the relevant total
amount of contributions required by the total amount of contributing oil received in
all Contracting States in the relevant year.

17

4.

5.

1.

2.

1.

2.

1.

2.

1.

The  annual  contribution  shall  be  due  on  the  date  to  be  laid  down  in  the  Internal
Regulations  of  the  Supplementary  Fund.  The  Assembly  may  decide  on  a  different
date of payment.

The  Assembly  may  decide,  under  conditions  to  be  laid  down  in  the  Financial
Regulations of the Supplementary Fund, to make transfers between funds received in
accordance  with  paragraph  2(a)  and  funds  received  in  accordance  with  paragraph
2(b)

Article 12

The provisions of article 13 of the 1992 Fund Convention shall apply to contributions
to the Supplementary Fund.

A  Contracting  State  itself  may  assume  the  obligation  to  pay  contributions  to  the
Supplementary  Fund  in  accordance  with  the  procedure  set  out  in  article  14  of  the
1992 Fund Convention.

Article 13

Contracting  States  shall  communicate  to  the  Director  of  the  Supplementary  Fund
information  on  oil  receipts  in  accordance  with  article  15  of  the  1992  Fund
Convention  provided,  however,  that  communications  made  to  the  Director  of  the
1992  Fund  under  article  15,  paragraph 2,  of  the  1992  Fund  Convention  shall  be
deemed to have been made also under this Protocol.

Where  a  Contracting  State  does  not  fulfil 
the
communication referred to in paragraph 1 and this results in a financial loss for the
Supplementary  Fund,  that  Contracting  State  shall  be  liable  to  compensate  the
Supplementary  Fund for such  loss. The  Assembly shall, on the  recommendation  of
the Director of the Supplementary Fund, decide whether such compensation shall be
payable by that Contracting State.

its  obligations 

to  submit 

Article 14

Notwithstanding article 10, for the purposes of this Protocol there shall be deemed to
be a minimum receipt of 1 million tons of contributing oil in each Contracting State.

When  the  aggregate  quantity  of  contributing  oil  received  in  a  Contracting  State  is
less than 1 million tons, the Contracting State shall assume the obligations that would
be incumbent under this Protocol on any person who would be liable to contribute to
the Supplementary Fund in respect of oil received within the territory of that State in
so far as no liable person exists for the aggregated quantity of oil received.

Article 15

If in a Contracting State there is no person meeting the conditions of article 10, that
Contracting  State  shall  for  the  purposes  of  this  Protocol  inform  the  Director  of  the
Supplementary Fund thereof.

18

2.

3.

4.

1.

2.

3.

1.

2.

3.

No compensation shall be paid by the Supplementary Fund for pollution damage in
the  territory,  territorial  sea  or  exclusive  economic  zone  or  area  determined  in
accordance with article 3(a)(ii), of this Protocol, of a Contracting State in respect of a
given  incident  or  for  preventive  measures,  wherever  taken,  to  prevent  or  minimize
such  damage,  until  the  obligations  to  communicate  to  the  Director  of  the
Supplementary  Fund  according to  article 13,  paragraph 1  and  paragraph 1  of  this
article have been complied with in respect of that Contracting State for all years prior
to the occurrence of that incident.

The  Assembly  shall  determine  in  the  Internal  Regulations  the  circumstances  under
which  a  Contracting  State  shall  be  considered  as  having  failed  to  comply  with  its
obligations.

Where  compensation  has  been  denied  temporarily  in accordance  with  paragraph 2,
compensation  shall  be  denied  permanently  in respect  of  that  incident  if  the
obligations  to  communicate  to  the  Director  of  the  Supplementary  Fund  under
article 13, paragraph 1 and paragraph 1 of this article, have not been complied with
within  one  year  after  the  Director  of  the  Supplementary  Fund  has  notified  the
Contracting State of its failure to report.

Any  payments  of  contributions  due  to  the  Supplementary  Fund  shall  be  set  off
against compensation due to the debtor, or the debtor’s agents.

Organization and administration
Article 16

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

Articles  17  to  20  and  28  to  33  of  the  1992  Fund  Convention  shall  apply  to  the
Assembly, Secretariat and Director of the Supplementary Fund.

Article 34 of the 1992 Fund Convention shall apply to the Supplementary Fund.

Article 17

The Secretariat of the 1992 Fund, headed by the Director of the 1992 Fund, may also
function as the Secretariat and the Director of the Supplementary Fund.

If, in accordance with paragraph 1, the Secretariat and the Director of the 1992 Fund
also perform the function of Secretariat and Director of the Supplementary Fund, the
Supplementary  Fund  shall  be  represented,  in  cases  of  conflict  of  interests  between
the 1992 Fund and the Supplementary Fund, by the Chairman of the Assembly.

The Director of the Supplementary Fund, and the staff and experts appointed by the
Director of the Supplementary Fund, performing their duties under this Protocol and
the 1992 Fund Convention, shall not be regarded  as contravening the  provisions of
article 30 of the 1992 Fund Convention as applied by article 16, paragraph 2, of this
Protocol in so far as they discharge their duties in accordance with this article.

19

4.

5.

1.

2.

3.

4.

1.

2.

The  Assembly  shall  endeavour  not  to  take  decisions  which  are  incompatible  with
decisions  taken  by  the  Assembly  of  the  1992  Fund.  If  differences  of  opinion  with
respect  to  common  administrative  issues  arise,  the  Assembly  shall  try  to  reach  a
consensus  with  the  Assembly  of  the  1992  Fund,  in  a  spirit  of  mutual  co-operation
and with the common aims of both organizations in mind.

The  Supplementary  Fund  shall  reimburse  the  1992  Fund  all  costs  and  expenses
arising  from  administrative  services  performed  by  the  1992  Fund  on  behalf  of  the
Supplementary Fund.

Article 18
Transitional provisions

Subject  to  paragraph 4,  the  aggregate  amount  of  the  annual  contributions  payable
in respect of contributing oil received in a single Contracting State during a calendar
year  shall  not  exceed  20%  of  the  total  amount  of  annual  contributions  pursuant  to
this Protocol in respect of that calendar year.

If the application of the provisions in article 11, paragraphs 2 and 3, would result in
the  aggregate  amount  of  the  contributions  payable  by  contributors  in  a  single
Contracting  State  in  respect  of  a  given  calendar  year  exceeding  20%  of  the  total
annual contributions, the contributions payable by all contributors in that State shall
be  reduced  pro  rata  so  that  their  aggregate  contributions  equal  20%  of  the  total
annual contributions to the Supplementary Fund in respect of that year.

If the contributions payable by persons in a given Contracting State shall be reduced
pursuant to paragraph 2, the contributions payable by persons in all other Contracting
States  shall  be  increased  pro  rata  so  as  to  ensure  that  the  total  amount  of
contributions payable by all persons liable to contribute to the Supplementary Fund
in  respect  of  the  calendar  year  in  question  will  reach  the  total  amount  of
contributions decided by the Assembly.

The  provisions  in  paragraphs 1  to  3  shall  operate  until  the  total  quantity  of
contributing  oil  received  in  all  Contracting  States  in  a  calendar  year,  including  the
quantities  referred  to  in  article 14,  paragraph 1,  has  reached  1,000  million  tons  or
until  a  period  of  10  years  after  the  date  of  entry  into  force  of  this  Protocol  has
elapsed, whichever occurs earlier.

Final clauses
Article 19
Signature, ratification, acceptance, approval and accession

This  Protocol  shall  be  open  for  signature  at  London  from  31  July  2003  to  30  July
2004.

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

(a)

signature without reservation as to ratification, acceptance or approval; or

(b)

signature  subject 
ratification, acceptance or approval; or

to  ratification,  acceptance  or  approval  followed  by

20

(c)

accession.

3.

4.

Only  Contracting  States  to  the  1992  Fund  Convention  may  become  Contracting
States to this Protocol.

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

Article 20
Information on contributing oil

Before this Protocol comes into force for a State, that State shall, when signing this Protocol
in accordance with article 19, paragraph 2(a), or when depositing an instrument referred to in
article 19, paragraph 4 of this Protocol, and annually thereafter at a date to be determined by
the  Secretary-General,  communicate  to  the  Secretary-General  the  name  and  address  of  any
person who in respect of that State would be liable to contribute to the Supplementary Fund
pursuant to article 10 as well as data on the relevant quantities of contributing oil received by
any such person in the territory of that State during the preceding calendar year.

Article 21
Entry into force

1.

This  Protocol  shall  enter  into  force  three  months  following  the  date  on  which  the
following requirements are fulfilled:

(a)

(b)

at  least  eight  States  have  signed  the  Protocol  without  reservation  as  to
ratification,  acceptance  or  approval,  or  have  deposited  instruments  of
ratification, acceptance, approval or accession with the Secretary-General; and

the Secretary-General has received information from the Director of the 1992
Fund  that  those  persons  who  would  be  liable  to  contribute  pursuant  to
article 10 have received during the preceding calendar year a total quantity of
at least 450 million tons of contributing oil, including the quantities referred to
in article 14, paragraph 1.

For  each  State  which  signs  this  Protocol  without  reservation  as  to  ratification,
acceptance  or  approval,  or  which  ratifies,  accepts,  approves  or  accedes  to  this
Protocol, after the conditions in paragraph 1 for entry into force have been met, the
Protocol shall enter into force three months following the date of the deposit by such
State of the appropriate instrument.

Notwithstanding paragraphs 1 and 2, this Protocol shall not enter into force in respect
of any State until the 1992 Fund Convention enters into force for that State.

2.

3.

Article 22
First session of the Assembly

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 Protocol and, in any case, not more
than thirty days after such entry into force.

21

1.

2.

1.

2.

3.

4.

5.

6(a)

(b)

(c)

7.

Article 23
Revision and amendment

A conference for the purpose of revising or amending this Protocol may be convened
by the Organization.

The Organization shall convene a Conference of Contracting States for the purpose
of revising or amending this Protocol at the request of not less than one third of all
Contracting States.

Article 24
Amendment of compensation limit

Upon  the  request  of  at  least  one  quarter  of  the  Contracting  States,  any  proposal  to
amend the limit of the amount of compensation laid down in article  4, paragraph 2
(a), shall be circulated by the Secretary-General to all Members of the Organization
and to all Contracting States.

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

All Contracting States to this Protocol, whether or not Members of the Organization,
shall  be  entitled  to  participate  in  the  proceedings  of  the  Legal  Committee  for  the
consideration and adoption of amendments.

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

When acting on a proposal to amend the limit, the Legal Committee shall take into
account the experience of incidents and in particular the amount of damage resulting
therefrom and changes in the monetary values.

No amendments of the limit under this article may be considered before the date of
entry into force of this Protocol nor less than three years from the date of entry into
force of a previous amendment under this article.

The limit may not be increased so as to exceed an amount which corresponds to the
limit  laid  down  in  this  Protocol  increased  by  six  per  cent  per  year  calculated  on  a
compound basis from the date when this Protocol is opened for signature to the date
on which the Legal Committee’s decision comes into force.

The limit may not be increased so as to exceed an amount which corresponds to the
limit laid down in this Protocol multiplied by three.

Any  amendment  adopted  in  accordance  with  paragraph  4  shall  be  notified  by  the
Organization to all Contracting States. The amendment shall be deemed to have been
accepted at the end of a period of twelve months after the date of notification, unless
within that period not less than one quarter of the States that were Contracting States
at  the  time  of  the  adoption  of  the  amendment  by  the  Legal  Committee  have

22

8.

9.

10.

1.

2.

1.

2.

3.

4.

communicated to the Organization 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 7 shall
enter into force twelve months after its acceptance.

All Contracting States shall be bound by the amendment, unless they denounce this
Protocol in accordance with article 26, paragraphs 1 and 2, at least six months before
the  amendment  enters  into  force.  Such  denunciation  shall  take  effect  when  the
amendment enters into force.

When  an  amendment  has  been  adopted  by  the  Legal  Committee  but  the  twelve-
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 7 . In the cases
referred  to  in  this  paragraph,  a  State  becomes  bound  by  an  amendment  when  that
amendment enters into force, or when this Protocol enters into force for that State, if
later.

Article 25
Protocols to the 1992 Fund Convention

If  the  limits  laid  down  in  the  1992  Fund  Convention  have  been  increased  by  a
Protocol thereto, the limit laid down in article 4, paragraph 2(a), may be increased by
the same amount by means of the procedure set out in article 24. The provisions of
article 24, paragraph 6, shall not apply in such cases.

If  the  procedure  referred  to  in  paragraph  1  has  been  applied,  any  subsequent
amendment  of  the  limit  laid  down  in  article  4,  paragraph  2,  by  application  of  the
procedure in article 24 shall, for the purpose of article 24, paragraphs 6(b) and (c), be
calculated on the basis of the new limit as increased in accordance with paragraph 1.

Article 26
Denunciation

This Protocol may be denounced by any Contracting State at any time after the date
on which it enters into force for that Contracting State.

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

A  denunciation  shall  take  effect  twelve  months,  or  such  longer  period  as  may  be
specified  in  the  instrument  of  denunciation,  after  its  deposit  with  the  Secretary-
General.

Denunciation of the 1992 Fund Convention shall be deemed to be a denunciation of
this Protocol. Such denunciation shall take effect on the date on which denunciation
of the Protocol of 1992 to amend the 1971 Fund Convention takes effect according to
article 34 of that Protocol.

23

5.

1.

2.

3.

1.

2.

Notwithstanding  a  denunciation  of  the  present  Protocol  by  a  Contracting  State
pursuant to this article, any provisions of this Protocol relating to the obligations to
make contributions to the Supplementary Fund with respect to an incident referred to
in article 11, paragraph 2(b), and occurring before the denunciation takes effect, shall
continue to apply.

Article 27
Extraordinary sessions of the Assembly

Any Contracting State may, within ninety days after the deposit of an instrument of
denunciation  the  result  of which it considers will significantly increase the  level  of
contributions  for  the  remaining  Contracting  States,  request  the  Director  of  the
Supplementary  Fund  to  convene  an  extraordinary  session  of  the  Assembly.  The
Director  of  the  Supplementary  Fund  shall  convene  the  Assembly  to  meet  not  later
than sixty days after receipt of the request.

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

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 for the remaining Contracting States, any such State may, not later than
one hundred and twenty days before the date on which the denunciation takes effect,
denounce this Protocol with effect from the same date.

Article 28
Termination

This Protocol shall cease to be in force on the date when the number of Contracting
States  falls  below  seven  or  the  total  quantity  of  contributing  oil  received  in  the
remaining  Contracting  States,  including  the  quantities  referred  to  in  article  14,
paragraph 1, falls below 350 million tons, whichever occurs earlier.

States which are bound by this Protocol on the day before the date it ceases to be in
force shall enable the Supplementary  Fund to exercise  its functions as  described  in
article 29 and shall, for that purpose only, remain bound by this Protocol.

Article 29
Winding up of the Supplementary Fund

1.

If this Protocol ceases to be in force, the Supplementary Fund shall nevertheless:

(a) meet  its  obligations  in  respect  of  any  incident  occurring  before  the  Protocol

ceased to be in force;

24

(b)

be  entitled  to  exercise  its  rights  to  contributions  to  the  extent  that  these
contributions  are  necessary  to  meet  the  obligations  under  paragraph 1(a),
including expenses for the administration of the Supplementary Fund necessary
for this purpose.

2.

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

3.

For the purposes of this article the Supplementary Fund shall remain a legal person.

Article 30
Depositary

1.

2.

This Protocol and any amendments accepted under article 24 shall be deposited with
the Secretary-General.

The Secretary-General shall:

(a)

inform all States which have signed or acceded to this Protocol of:

(i)

each  new  signature  or  deposit  of  an  instrument  together  with  the  date
thereof;

(ii)

the date of entry into force of this Protocol;

(iii) any  proposal  to  amend  the  limit  of  the  amount  of  compensation  which

has been made in accordance with article 24, paragraph 1;

(iv)

(v)

any  amendment  which  has  been  adopted  in  accordance  with  article 24,
paragraph 4;

any  amendment  deemed  to  have  been  accepted  under  article 24,
paragraph 7, together with the date on which that amendment shall enter
into force in accordance with paragraphs 8 and 9 of that article;

(vi)

the  deposit  of  an  instrument  of  denunciation  of  this  Protocol  together
with the date of the deposit and the date on which it takes effect;

(vii) any communication called for by any article in this Protocol;

(b)

transmit certified true copies of this Protocol to all Signatory States and to all
States which accede to the Protocol.

3.

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

25

Article 31
Languages

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

DONE AT LONDON this sixteenth day of May, two thousand and three.

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

26

ANNEX 2

PROTOCOL  OF  1992  TO  AMEND  THE  INTERNATIONAL  CONVENTION  ON
CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1969

THE PARTIES TO THE PRESENT PROTOCOL,

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

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

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

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

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

HAVE AGREED as follows:

Article 1

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

Article 2

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

1.

Paragraph 1 is replaced by the following text:

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

2.

Paragraph 5 is replaced by the following text:

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

27

3.

Paragraph 6 is replaced by the following text:

6. "Pollution damage" means:

(a)  loss  or  damage  caused  outside  the  ship  by  contamination  resulting  from  the
escape  or  discharge  of  oil  from  the  ship,  wherever  such  escape  or  discharge  may
occur, 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;

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

4.

Paragraph 8 is replaced by the following text:

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

5.

6.

Paragraph 9 is replaced by the following text:

9. "Organization" means the International Maritime Organization.

After paragraph 9 a new paragraph is inserted reading as follows:

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

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

Article 3

This Convention shall apply exclusively:

(a) to pollution damage caused:

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

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

(b) to preventive measures, wherever taken, to prevent or minimize such damage.

28

Article 4

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

1.

Paragraph 1 is replaced by the following text:

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

2.

Paragraph 4 is replaced by the following text:

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

(a) the servants or agents of the owner or the members of the crew;

(b) the pilot or any other person who, without being a member of the crew, performs
services for the ship;

(c) any charterer (howsoever described, including a 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;

(f)  all  servants  or  agents  of  persons  mentioned  in  subparagraphs  (c),  (d)  and  (e);
unless the damage resulted from their personal act or omission, committed with the
intent  to  cause  such  damage,  or  recklessly  and  with  knowledge  that  such  damage
would probably result.

Article 5

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

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

29

Article 6

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

1.

Paragraph 1 is replaced by the following text:

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

(a) 3 million units of account for a ship not exceeding 5,000 units of tonnage;

(b) for a ship with a tonnage in excess thereof, for each  additional  unit  of  tonnage,
420  units  of  account  in  addition  to  the  amount  mentioned  in  subparagraph  (a);
provided,  however,  that  this  aggregate  amount  shall  not  in  any  event  exceed
59.7 million units of account.

2.

Paragraph 2 is replaced by the following text:

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

3.

Paragraph 3 is replaced by the following text:

3.  For  the  purpose  of  availing  himself  of  the  benefit  of  limitation  provided  for  in
paragraph  1  of  this  Article  the  owner  shall  constitute  a  fund  for  the  total  sum
representing the limit of his liability with the Court or other competent authority of
any one of the Contracting States in which action is brought under Article IX or, if
no action is brought, with any Court or other competent authority in any one of the
Contracting States in which an action can be brought under Article IX. The fund can
be constituted either by depositing the sum or by producing a bank guarantee or other
guarantee, acceptable under the legislation of the Contracting State where the fund is
constituted, and considered to be adequate by the Court or other competent authority.

4.

Paragraph 9 is replaced by the following text:

9 (a). The "unit of  account" referred to in paragraph 1 of this Article is the Special
Drawing  Right  as  defined  by  the  International  Monetary  Fund.  The  amounts
mentioned in  paragraph  1  shall  be  converted  into  national  currency  on  the  basis  of
the value of that currency by reference to the Special Drawing Right on the date of
the  constitution  of  the  fund  referred  to  in  paragraph  3.  The  value  of  the  national
currency, in terms of the Special  Drawing  Right,  of  a  Contracting  State  which  is  a
member of the  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 Contracting State which is not
a  member  of  the  International  Monetary  Fund  shall  be  calculated  in  a  manner
determined by that State.

30

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

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

Contracting  States  shall  communicate  to  the  depositary  the  manner  of  calculation
pursuant to paragraph 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.

5.

Paragraph 10 is replaced by the following text:

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

6.

The second sentence of paragraph 11 is replaced by the following text:

Such  a  fund  may  be  constituted  even  if,  under  the  provisions  of  paragraph  2,  the
owner  is  not  entitled  to  limit  his  liability,  but  its  constitution  shall  in  that  case  not
prejudice the rights of any claimant against the owner.

Article 7

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

1.

The first two sentences of paragraph 2 are replaced by the following text:

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

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

31

2.

Paragraph 4 is replaced by the following text:

4.  The  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 Contracting State, with the authorities of the State issuing or certifying
the certificate.

3.

The first sentence of paragraph 7 is replaced by the following text:

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

In the second sentence of paragraph 7 the words "with the State of a ship's registry"
are replaced by the words "with the issuing or certifying State".

The second sentence of paragraph 8 is replaced by the following text:

4.

5.

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

Article 8

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

Paragraph 1 is replaced by the following text:

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

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

Article 9

Article XII bis

Transitional provisions

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

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

32

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

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

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

Article XII ter

Final clauses

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

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

Article 10

Article 11

1.

2.

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

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

33

1.

2.

3.

4.

5.

6.

1.

2.

FINAL CLAUSES

Article 12
Signature, ratification, acceptance, approval and accession

This  Protocol  shall  be  open  for  signature  at  London  from  15  January  1993  to
14 January 1994 by all States.

Subject to paragraph 4, any State may become a Party to this Protocol by:

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

(b) accession.

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

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

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

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

Article 13
Entry into force

This Protocol shall enter into  force  twelve  months  following the date on which ten
States including four States each with not less than one million units of gross tanker
tonnage have deposited instruments of ratification, acceptance, approval or accession
with the Secretary-General of the Organization.

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

34

3.

4.

1.

2.

1.

2.

3.

4.

ratification, acceptance, approval or accession in respect of the Protocol of 1992 to
amend  the 1971  Fund Convention may  also make a declaration in accordance  with
this paragraph at the same time.

Any State which has made a declaration in accordance with the preceding paragraph
may withdraw it at any time by means of a notification addressed to the Secretary-
General of the Organization. Any such withdrawal  shall  take effect on  the  date  the
notification is received, provided that such State shall be deemed to have deposited
its  instrument  of  ratification,  acceptance,  approval  or  accession  in  respect  of  this
Protocol on that date.

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

Article 14
Revision and amendment

A Conference for the purpose of revising or amending the 1992 Liability Convention
may be convened by the Organization.

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

Article 15
Amendments of limitation amounts

Upon  the  request  of  at  least  one  quarter  of  the  Contracting  States  any  proposal  to
amend  the  limits  of  liability  laid  down  in  Article  V,  paragraph  1,  of  the  1969
Liability  Convention  as  amended  by  this  Protocol  shall  be  circulated  by  the
Secretary-General to all Members of the Organization and to all Contracting States.

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

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

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

35

5.

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

6 (a)

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

(b)

(c)

7.

8.

9.

10.

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

No limit may be increased so as to exeed an amount which corresponds to the limit
laid down in the 1969 Liability Convention as amended by this Protocol multiplied
by 3.

Any  amendment  adopted  in  accordance  with  paragraph  4  shall  be  notified  by  the
Organization to all Contracting States. The amendment shall be deemed to have been
accepted  at  the  end  of  a  period  of  eighteen  months  after  the  date  of  notification,
unless within that period not less than one quarter of the States that were Contracting
States  at  the  time  of  the  adoption  of  the  amendment  by  the  Legal  Committee  have
communicated to the Organization 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 7 shall
enter into force eighteen months after its acceptance.

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

When  an  amendment  has  been  adopted  by  the  Legal  Committee  but  the  eighteen-
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 7. In the case
referred  to  in  this  paragraph,  a  State  becomes  bound  by  an  amendment  when  that
amendment enters into force, or when this Protocol enters into force for that State, if
later.

36

1.

2.

3.

4.

5.

1.

2.

Article 16
Denunciation

This Protocol may be denounced by any Party at any time after the date on which it
enters into force for that Party.

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

A  denunciation  shall  take  effect  twelve  months,  or  such  longer  period  as  may  be
specified  in  the  instrument  of  denunciation,  after  its  deposit  with  the  Secretary-
General of the Organization.

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

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

Article 17
Depositary

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

The Secretary-General of the Organization shall:

(a)

inform all States which have signed or acceded to this protocoll of:

(i)

(ii)

each  new  signature  or  deposit  of  an  instrument  together  with  the  date
thereof;

each  declaration  and  notification  under  Article  13  and  each  declaration
and  communication  under  Article  13  and  each  declaration  and
communication  under  Article  V,  paragraph  9,  of  the  1992  Liability
Convention;

(iii)

the date of entry into force of this Protocol;

(iv)

(v)

any  proposal  to  amend  limits  of  liability  which  has  been  made  in
accordance with Article 15, paragraph 1;

any  amendment which has been  adopted in accordance  with Article  15,
paragraph 4;

37

(vi)

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

(vii) the  deposit  of  any  instrument  of  denunciation  of  this  Protocol  together

with the date of the deposit and the date on which it takes effect;

(viii) any denunciation deemed to have been made under Article 16, paragraph

5;

(ix)

any communication called for by any Article of this Protocol;

(b)

transmit certified true copies of this Protocol to all Signatory States and to all
States which accede to this Protocol.

3.

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

Article 18
Languages

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

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

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

38

ANNEX

CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF
CIVIL LIABILITY FOR OIL POLLUTION DAMAGE

Issued  in  accordance  with  the  provisions  of  Article  VII  of  the  International  Convention  on
Civil Liability for Oil Pollution Damage, 1992.

Name of ship

Distinctive number of letters

Port of registry

Name and adress of owner

This is to certify that there is in force in respect of the above-named ship a policy of insurance
or  other  financial  security  satisfying  the  requirements  of  Article  VII  of  the  International
Convention on Civil Liability for Oil Pollution Damage, 1992.

Type of Security .............................................................................................................

Duration of Security .........................................................................................……

Name and Adress of the Insurer(s) and/or Guarantor(s)

Name ........................................................................................................…............

Adress.......................................................................................................................

This certificate is valid until ..............................................................................…..

Issued or certified by the Government of ....................................................………

(Full designation of the State)

At ................................................... On ..................................................................

(Place ) (Date)

............................................................................

Signature and Title of issuing or certifying official

Explanatory Notes:

1.  If  desired,  the  designation  of  the  State  may  include  a  reference  to  the  competent  public
authority of the country where the certificate is issued.

2. If the total amount of security has been furnished by more than one source, the amount of
each of them should be indicated.

3. If security is furnished in several forms, these should be enumerated.

4.  The  entry  "Duration  of  Security"  must  stipulate  the  date  on  which  such  security  takes
effect.

39

ANNEX 3

PROTOCOL OF 1992 TO AMEND THE INTERNATIONAL CONVENTION ON THE
ESTABLISHMENT OF AN INTERNATIONAL FUND  FOR COMPENSATION  FOR
OIL POLLUTION DAMAGE OF 1971

THE PARTIES TO THE PRESENT PROTOCOL,

HAVING  CONSIDERED  the  International  Convention  on  the  Establishment  of  an
International Fund for Compensation for Oil Pollution Damage, 1971, and the 1984 Protocol
thereto,

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

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

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

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

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

BEARING  IN  MIND  the  adoption  of  the  Protocol  of  1992  to  amend  the  International
Convention on Civil Liability for Oil Pollution Damage, 1969,

HAVE AGREED AS FOLLOWS:

Article 1

The Convention which the provisions of this Protocol amend is the International Convention
on  the  Establishment  of  an  International  Fund  for  Compensation  for  Oil  Pollution  Damage,
1971, hereinafter referred to as the "1971 Fund Convention". For States Parties to the Protocol
of  1976  to  the  1971  Fund  Convention,  such  reference  shall  be  deemed  to  include  the  1971
Fund Convention as amended by that Protocol.

Article 2

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

1.

Paragraph 1 is replaced by the following text:

1. "1992 Liability Convention" means the International Convention on Civil Liability
for Oil Pollution Damage, 1992.

40

2.

After paragraph 1 a new paragraph is inserted as follows:

1  bis.  "1971  Fund  Convention"  means  the  International  Convention  on  the
Establishment of an International Fund for Compensation for Oil Pollution Damage,
1971. For States Parties to the Protocol of 1976 to that Convention, the term shall be
deemed to include the 1971 Fund Convention as amended by that Protocol.

3.

Paragraph 2 is replaced by the following text:

2.  "Ship",  "Person",  "Owner",  "Oil",  "Pollution  Damage",  "Preventive  Measures",
"Incident",  and  "Organization"  have  the  same  meaning  as  in  Article  I  of  the  1992
Liability Convention.

4.

Paragraph 4 is replaced by the following text:

4. "Unit of account" has the same meaning as in Article V, paragraph 9, of the 1992
Liability Convention.

5.

Paragraph 5 is replaced by the following text:

5. "Ship's tonnage" has the same meaning as in Article V, paragraph 10, of the 1992
Liability Convention.

6.

Paragraph 7 is replaced by the following text:

7. "Guarantor"  means  any  person  providing  insurance  or  other  financial  security  to
cover  an  owner's  liability  in  pursuance  of  Article  VII,  paragraph  1,  of  the  1992
Liability Convention.

Article 3

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

Paragraph 1 is replaced by the following text:

1.  An  International  Fund  for  compensation  for  pollution  damage,  to  be  named  "The
International  Oil  Pollution  Compensation  Fund  1992"  and  hereinafter  referred  to  as  "the
Fund", is hereby established with the following aims:

(a) to provide compensation for pollution damage to the extent that the protection afforded by
the 1992 Liability Convention is inadequate;

(b) to give effect to the related purposes set out in this Convention.

Article 3 of the 1971 Fund Convention is replaced by the following text:

Article 4

This Convention shall apply exclusively:

(a) to pollution damage caused:

41

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

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

(b) to preventive measures, wherever taken, to prevent or minimize such damage.

The heading to Articles 4 to 9 of the 1971 Fund Convention is amended by deleting the words
"and indemnification".

Article 5

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

Article 6

1.

2.

In  paragraph  1  the  five  references  to  "the  Liability  Convention"  are  replaced  by
references to "the 1992 Liability Convention".

Paragraph 3 is replaced by the following text:

3.  If  the  Fund  proves  that  the  pollution  damage  resulted  wholly  or  partially  either
from  an  act  or  omission  done  with  the  intent  to  cause  damage  by  the  person  who
suffered  the  damage  or  from  the  negligence  of  that  person,  the  Fund  may  be
exonerated  wholly  or  partially  from  its  obligation  to  pay  compensation  to  such
person. The Fund shall in any event be exonerated to the extent  that  the  shipowner
may  have  been  exonerated  under  Article  III,  paragraph  3,  of  the  1992  Liability
Convention. However, there shall be no such exoneration of the Fund with regard to
preventive measures.

3.

Paragraph 4 is replaced by the following text:

4.  (a)  Except  as  otherwise  provided  in  subparagraphs (b) and  (c) of this paragraph,
the aggregate amount of compensation payable by the Fund under this Article shall
in respect of any one incident be limited, so that the total sum of that amount and the
amount  of  compensation  actually  paid  under  the  1992  Liability  Convention  for
pollution  damage  within  the  scope  of  application  of  this  Convention  as  defined  in
Article 3 shall to exceed 135 million units of account.

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

(c) The maximum amount of compensation referred to in subparagraphs (a) and (b)
shall be  200 million  units  of  account  with  respect  to  any  incident  occurring  during
any  period  when  there  are  three  Parties  to  this  Convention  in  respect  of  which  the
combined relevant quantity of contributing oil received by persons in the territories

42

of such Parties, during the preceding calendar year, equalled or exceeded 600 million
tons.

(d) Interest accrued on a fund constituted in accordance with Article V, paragraph 3,
of  the  1992  Liability  Convention,  if  any,  shall  not  be  taken  into  account  for  the
computation of the maximum compensation payable by the Fund under this Article.

(e) The amounts mentioned in this Article 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  decision  of  the  Assembly  of  the  Fund  as  to  the  first  date  of
payment of compensation.

4.

Paragraph 5 is replaced by the following text:

5.  Where  the  amount  of  established  claims  against  the  Fund  exceeds  the  aggregate
amount  of  compensation  payable  under  paragraph  4,  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.

5.

Paragraph 6 is replaced by the following text:

6. The Assembly of the Fund may decide that, in exceptional cases, compensation in
accordance with  this Convention can be  paid even if the  owner of  the ship  has  not
constituted  a  fund  in accordance with Article  V,  paragraph 3,  of the 1992  Liability
Convention. In such case paragraph 4(e) of this Article applies accordingly.

Article 5 of the 1971 Fund Convention is deleted.

Article 7

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

Article 8

1.

2.

In  paragraph  1  the  paragraph  number  and  the  words  "or  indemnification  under
Article 5" are deleted.

Paragraph 2 is deleted.

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

Article 9

1.

2.

3.

In  paragraphs  1,  3,  4  and  6  the  seven  references  to  "the  Liability  Convention"  are
replaced by references to "the 1992 Liability Convention".

In paragraph 1 the words "or indemnification under Article 5" are deleted.

In  the  first  sentence  of  paragraph  3  the  words  "or  indemnification"  and  "or  5"  are
deleted.

43

4.

In the second sentence of paragraph 3 the words "or under Article  5, paragraph  1,"
are deleted.

In  Article  8  of  the  1971  Fund  Convention  the  reference  to  "the  Liability  Convention"  is
replaced by a reference to "the 1992 Liability Convention".

Article 10

Article 11

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

1.

Paragraph 1 is replaced by the following text:

1. The Fund shall,  in respect of  any  amount  of  compensation  for  pollution  damage
paid  by  the  Fund  in  accordance  with  Article  4,  paragraph  1,  of  this  Convention,
acquire  by  subrogation  the  rights  that  the  person  so  compensated  may  enjoy  under
the 1992 Liability Convention against the owner or his guarantor.

2.

In paragraph 2 the words "or indemnification" are deleted.

Article 12

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

The opening phrase of paragraph 1 is replaced by the following text:

Annual contributions to the Fund shall be made in respect of each Contracting State by any
person who, in the calendar year referred to in Article 12, paragraph 2(a) of (b), has received
in total quantities exceeding 150,000 tons:

Article 11 of the 1971 Fund Convention is deleted.

Article 13

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

Article 14

1.

2.

3.

4.

In  the  opening  phrase  of  paragraph  1  the  words  "for  each  person  referred  to  in
Article 10" are deleted.

In  paragraph  1(i),  subparagraphs  (b)  and  (c),  the  words  "or  5"  are  deleted  and  the
words "15 million francs" are replaced by the words "four million units of account".

Subparagraph 1(ii)(b) is deleted.

In paragraph 1(ii), subparagraph (c) becomes (b) and subparagraph (d) becomes (c).

44

5.

The opening phrase in paragraph 2 is replaced by the following text:

The  Assembly  shall  decide  the  total  amount  of  contributions  to  be  levied.  On  the
basis  of  that  decision,  the  Director  shall,  in  respect  of  each  Contracting  State,
calculate  for  each  person  referred  to  in  Article  10  the  amount  of  his  annual
contribution:

6.

Paragraph 4 is replaced by the following text:

4. The annual contribution shall be  due  on the  date  to  be  laid  down  in  the  Internal
Regulations of the Fund. The Assembly may decide on a different date of payment.

7.

Paragraph 5 is replaced by the following text:

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

8.

Paragraph 6 is deleted.

Article 15

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

1.

Paragraph 1 is replaced by the following text:

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

2.

In paragraph 3 the words "Articles 10 and 11" are replaced by the words "Articles 10
and 12" and the words "for a period exceeding three months" are deleted.

Article 16

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

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

Article 17

Article 16 of the 1971 Fund Convention is replaced by the following text:

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

45

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

Article 18

1.

2.

3.

4.

5.

6.

In  the  opening  sentence  of  the  article  the  words",  subject  to  the  provisions  of
Article 26," are deleted.

Paragraph 8 is deleted.

Paragraph 9 is replaced by the following text:

9.  to  establish  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  Contracting  States,  in  respect  of  which  the  largest
quantities  of  contributing  oil  are  being  received,  are  appropriately  represented;  the
Rules of Procedure of the Assembly may be applied, mutatis mutandis, for the work
of such subsidiary body;

In paragraph 10 the words ", the Executive Committee," are deleted.

In paragraph 11 the words ", the Executive Committee" are deleted.

Paragraph 12 is deleted.

Article 19

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

1.

Paragraph 1 is replaced by the following text:

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

2.

In paragraph 2 the words "of the Executive Committee or" are deleted.

Articles 21 to 27 of the 1971 Fund Convention and the heading to these articles are deleted.

Article 20

Article 21

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

1.

Paragraph 1 is replaced by the following text:

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

46

2.

3.

4.

In paragraph 2(e) the words "or the Executive Committee" are deleted.

In paragraph 2(f) the words "or to the Executive Committee, as the case may be," are
deleted.

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

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

5.

In paragraph 2(h) the words ", the Executive Committee" are deleted.

In  Article  31,  paragraph  1,  of  the  1971  Fund  Convention,  the  words  "on  the  Executive
Committee and" are deleted.

Article 22

Article 23

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

1.

2.

In the opening phrase the words "and the Executive Committee" are deleted.

In subparagraph (b) the words "and the Executive Committee" are deleted.

Article 24

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

1.

2.

3.

Paragraph 1 is deleted.

In paragraph 2 the paragraph number is deleted.

Subparagraph (c) is replaced by the following text:

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

Article 25

Article 35 of the 1971 Fund Convention is replaced by the following text:

Claims  for  compensation  under  Article  4  arising  from  incidents  occurring  after  the  date  of
entry into force of this Convention may not be brought against the Fund earlier than the one
hundred and twentieth day after that date.

47

Article 26

After Article 36 of the 1971 Fund Convention four new articles are inserted as follows:

Article 36 bis

The following transitional provisions shall apply in the period, hereinafter referred to as  the
transitional  period,  commencing  with  the  date  of  entry  into  force  of  this  Convention  and
ending  with  the  date  on  which  the  denunciations  provided  for  in  Article  31  of  the  1992
Protocol to amend the 1971 Fund Convention take effect:

(a) In the application of paragraph 1(a) of Article 2 of this  Convention, the  reference  to the
1992  Liability  Convention  shall  include  reference  to  the  International  Convention  on  Civil
Liability for Oil Pollution Damage, 1969, either in its original version or as amended by the
Protocol thereto of 1976 (referred to in this Article as "the 1969 Liability Convention"), and
also the 1971 Fund Convention.

(b) Where an incident has caused pollution damage within the scope of this Convention, the
Fund  shall  pay  compensation  to  any  person  suffering  pollution  damage  only  if,  and  to  the
extent  that,  such  person  has  been  unable  to  obtain  full  and  adequate  compensation  for  the
damage under the terms of the 1969 Liability Convention, the 1971 Fund Convention and the
1992 Liability Convention, provided that, in respect of pollution damage within the scope of
this  Convention  in  respect  of  a  Party  to  this  Convention  but  not  a  Party  to  the  1971  Fund
Convention, the Fund shall pay compensation to any person suffering pollution damage only
if,  and  to  the  extent  that,  such  person  would  have  been  unable  to  obtain  full  and  adequate
compensation had that State been party to each of the above-mentioned Conventions.

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

(d) Paragraph 1 of Article 9 of this Convention shall also apply to the rights enjoyed under the
1969 Liability Convention.

Article 36 ter

1.  Subject  to  paragraph  4  of  this  Article,  the  aggregate  amount  of  the  annual  contributions
payable in respect of contributing oil received in a single Contracting State during a calendar
year shall not exceed 27.5% of the total amount of annual contributions pursuant to the 1992
Protocol to amend the 1971 Fund Convention, in respect of that calendar year.

2. If the application of the provisions in paragraphs 2 and 3 of Article 12 would result in the
aggregate amount of the contributions payable by contributors in a single Contracting State in
respect  of  a  given  calendar  year  exceeding  27.5%  of  the  total  annual  contributions,  the
contributions payable  by all contributors in that State  shall be reduced pro rata so that  their
aggregate contributions equal 27.5% of the total annual contributions to the Fund in respect of
that year.

3.  If  the  contributions  payable  by  persons  in  a  given  Contracting  State  shall  be  reduced
pursuant  to  paragraph  2  of  this  Article,  the  contributions  payable  by  persons  in  all  other
Contracting  States  shall  be  increased  pro  rata  so  as  to  ensure  that  the  total  amount  of

48

contributions payable by all persons liable to contribute to the Fund in respect of the calendar
year in question will reach the total amount of contributions decided by the Assembly.

4. The provisions in paragraphs 1 to 3 of this Article shall operate until the total quantity of
contributing oil received in all Contracting States in a calendar year has reached 750 million
tons or until a period of 5 years after the date of entry into force of the said 1992 Protocol has
elapsed, whichever occurs earlier.

Article 36 quater

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

(a) The Secretariat of the Fund, established by the 1971 Fund Convention (hereinafter referred
to as "the 1971 Fund"), headed by the Director, may also function as the Secretariat and the
Director of the Fund.

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

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

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

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

(f)  The  Fund  shall  reimburse  to  the  1971  Fund  all  costs  and  expenses  arising  from
administrative services performed by the 1971 Fund on behalf of the Fund.

Article 36 quinquies

Final clauses

The  final  clauses  of  this  Convention  shall  be  Articles  28  to  39  of  the  Protocol  of  1992  to
amend the 1971 Fund Convention. References in this Convention to Contracting States shall
be taken to mean references to the Contracting States of that Protocol.

49

1.

2.

1.

2.

3.

4.

5.

6.

7.

1.

Article 27

The  1971  Fund  Convention  and  this  Protocol  shall,  as  between  the  Parties  to  this
Protocol, be read and interpreted together as one single instrument.

Articles 1 to 36 quinquies of the 1971 Fund Convention as amended by this Protocol
shall  be  known  as  the  International  Convention  on  the  Establishment  of  an
International  Fund  for  Compensation  for  Oil  Pollution  Damage,  1992  (1992  Fund
Convention).

FINAL CLAUSES

Article 28
Signature, ratification, acceptance, approval and accession

This  Protocol  shall  be  open  for  signature  at  London  from  15  January  1993  to  14
January 1994 by any State which has signed the 1992 Liability Convention.

Subject to paragraph 4, this Protocol shall be ratified, accepted or approved by States
which have signed it.

Subject  to  paragraph  4,  this Protocol is open for accession by States which  did not
sign it.

This Protocol may be ratified, accepted, approved or acceded to only by States which
have ratified, accepted, approved or acceded to the 1992 Liability Convention.

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

A  State  which  is  a  Party  to  this  Protocol  but  is  not  a  Party  to  the  1971  Fund
Convention  shall  be  bound  by  the  provisions  of  the  1971  Fund  Convention  as
amended by this Protocol in relation to other Parties hereto, but shall not be bound by
the provisions of the 1971 Fund Convention in relation to Parties thereto.

Any instrument of ratification, acceptance, approval or accession deposited after the
entry into force of an amendment to the 1971 Fund Convention as amended by this
Protocol  shall  be  deemed  to  apply  to  the  Convention  so  amended,  as  modified  by
such amendment.

Article 29
Information on contributing oil

Before this Protocol comes into force for a State, that State shall, when depositing an
instrument referred to in Article 28, paragraph 5, and annually thereafter at a date to
be determined by the Secretary-General of the Organization, communicate to him the
name  and  address  of  any  person  who  in  respect  of  that  State  would  be  liable  to
contribute  to  the  Fund  pursuant  to  Article  10  of  the  1971  Fund  Convention  as
amended by this Protocol as well as data on the relevant quantities of contributing oil
received  by  any  such  person  in  the  territory  of  that  State  during  the  preceding
calendar year.

50

2.

1.

2.

3.

4.

5.

6.

During the transitional period, the Director shall, for Parties, communicate annually
to  the  Secretary-General  of  the  Organization  data  on  quantities  of  contributing  oil
received  by  persons  liable  to  contribute  to  the  Fund  pursuant  to  Article  10  of  the
1971 Fund Convention as amended by this Protocol.

Article 30
Entry into force

This Protocol shall enter  into force  twelve months  following the date on which the
following requirements are fulfilled:

(a)  at  least  eight  States  have  deposited  instruments  of  ratification,  acceptance,
approval or accession with the Secretary-General of the Organization; and

(b) the Secretary-General of the Organization has received information in accordance
with  Article  29  that  those  persons  who  would  be  liable  to  contribute  pursuant  to
Article 10 of the 1971 Fund Convention as amended by this Protocol have received
during  the  preceding  calendar  year  a  total  quantity  of  at  least  450  million  tons  of
contributing oil.

However,  this  Protocol  shall  not  enter  into  force  before  the  1992  Liability
Convention has entered into force.

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

Any State may, at the time of the deposit of its instrument of ratification, acceptance,
approval  or  accession  in  respect  of  this  Protocol  declare  that  such  instrument  shall
not take effect for the purpose of this Article until the end of the six-month period in
Article 31.

Any State which has made a declaration in accordance with the preceding paragraph
may withdraw it at any time by means of a notification addressed to the Secretary-
General of  the Organization. Any  such  withdrawal shall take effect  on  the  date  the
notification is received, and any State making such a withdrawal shall be deemed to
have  deposited  its  instrument  of  ratification,  acceptance,  approval  or  accession  in
respect of this Protocol on that date.

Any  State  which  has  made  a  declaration  under  Article  13,  paragraph  2,  of  the
Protocol of  1992 to  amend  the  1969  Liability  Convention  shall  be  deemed  to  have
also  made  a  declaration  under  paragraph  4  of  this  Article.  Withdrawal  of  a
declaration  under  the  said  Article  13,  paragraph  2,  shall  be  deemed  to  constitute
withdrawal also under paragraph 5 of this Article.

51

Article 31
Denunciation of the 1969 and 1971 Conventions

Subject  to  Article  30,  within  six  months  following  the  date  on  which  the  following
requirements are fulfilled:

(a) at least eight States have become Parties to this Protocol or have deposited instruments of
ratification, acceptance, approval or accession with the Secretary-General of the Organization,
whether or not subject to Article 30, paragraph 4, and

(b)  the  Secretary-General  of  the  Organization  has  received  information  in  accordance  with
Article 29 that those persons who are or would be liable to contribute pursuant to Article 10
of the 1971 Fund Convention as amended by this Protocol have received during the preceding
calendar year a total quantity of at least 750 million tons of contributing oil;

each Party to this Protocol and each State which has deposited an instrument of  ratification,
acceptance, approval or accession, whether or not subject to Article 30, paragraph 4, shall, if
Party  thereto,  denounce  the  1971  Fund  Convention  and  the  1969  Liability  Convention  with
effect twelve months after the expiry of the above-mentioned six-month period.

1.

2.

1.

2.

3.

4.

Article 32
Revision and amendment

A  conference  for  the  purpose  of  revising  or  amending  the  1992  Fund  Convention
may be convened by the Organization.

The Organization shall convene a Conference of Contracting States for the purpose
of revising or amending the 1992 Fund Convention at the request of not less than one
third of all Contracting States.

Article 33
Amendment of compensation limits

Upon  the  request  of  at  least  one  quarter  of  the  Contracting  States,  any  proposal  to
amend the limits of amounts of compensation laid down in Article 4, paragraph 4, of
the  1971  Fund  Convention  as  amended  by  this  Protocol  shall  be  circulated  by  the
Secretary-General to all Members of the Organization and to all Contracting States.

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

All  Contracting  States  to  the  1971  Fund  Convention  as  amended  by  this  Protocol,
whether  or  not  Members  of  the  Organization,  shall  be  entitled  to  participate  in  the
proceedings  of  the  Legal  Committee  for  the  consideration  and  adoption  of
amendments.

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

52

5.

When acting on a proposal to amend the limits, the Legal Committee shall take into
account the experience of incidents and in particular the amount of damage resulting
therefrom  and  changes  in  the  monetary  values.  It  shall  also  take  into  account  the
relationship  between  the  limits  in  Article  4,  paragraph  4,  of  the  1971  Fund
Convention as amended by this Protocol and those in Article V, paragraph 1, of the
International Convention on Civil Liability for Oil Pollution Damage, 1992.

6. (a)

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

(b)

(c)

7.

8.

9.

10.

No limit may be increased so as to exceed an amount which corresponds to the limit
laid down in the 1971 Fund Convention as amended by this Protocol increased by six
per cent per year calculated on a compound basis from 15 January 1993.

No limit may be increased so as to exceed an amount which corresponds to the limit
laid down in the 1971 Fund Convention as amended by this Protocol multiplied by
three.

Any  amendment  adopted  in  accordance  with  paragraph  4  shall  be  notified  by  the
Organization to all Contracting States. The amendment shall be deemed to have been
accepted  at  the  end  of  a  period  of  eighteen  months  after  the  date  of  notification
unless within that period not less than one quarter of the States that were Contracting
States  at  the  time  of  the  adoption  of  the  amendment  by  the  Legal  Committee  have
communicated to the Organization 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 7 shall
enter into force eighteen months after its acceptance.

All Contracting States shall be bound by the amendment, unless they denounce this
Protocol  in  accordance  with  Article  34,  paragraphs  1  and  2,  at  least  six  months
before the amendment enters into force. Such denunciation shall take effect when the
amendment enters into force.

When  an  amendment  has  been  adopted  by  the  Legal  Committee  but  the  eighteen-
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 7. In the cases
referred  to  in  this  paragraph,  a  State  becomes  bound  by  an  amendment  when  that
amendment enters into force, or when this Protocol enters into force for that State, if
later.

Article 34
Denunciation

1.

This Protocol may be denounced by any Party at any time after the date on which it
enters into force for that Party.

53

2.

3.

4.

5.

6.

7.

1.

2.

3.

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

A  denunciation  shall  take  effect  twelve  months,  or  such  longer  period  as  may  be
specified  in  the  instrument  of  denunciation,  after  its  deposit  with  the  Secretary-
General of the Organization.

Denunciation of the 1992 Liability Convention shall be deemed to be a denunciation
of  this  Protocol.  Such  denunciation  shall  take  effect  on  the  date  on  which
denunciation of the Protocol of 1992 to amend the 1969 Liability Convention takes
effect according to Article 16 of that Protocol.

Any  Contracting  State  to  this  Protocol  which  has  not  denounced  the  1971  Fund
Convention  and  the  1969  Liability  Convention  as  required  by  Article  31  shall  be
deemed to have denounced this Protocol with effect twelve months after the expiry
of  the  six-month  period  mentioned  in  that  Article.  As  from  the  date  on  which  the
denunciations provided for in Article 31 take effect, any Party to this Protocol which
deposits an instrument of ratification, acceptance, approval or accession to the 1969
Liability  Convention  shall  be  deemed  to  have  denounced  this  Protocol  with  effect
from the date on which such instrument takes effect.

As  between  the  Parties  to  this  Protocol,  denunciation  by  any  of  them  of  the  1971
Fund Convention in accordance with Article 41 thereof shall not be construed in any
way as a denunciation of the 1971 Fund Convention as amended by this Protocol.

Notwithstanding a denunciation of this Protocol by a Party pursuant to this Article,
any  provisions  of  this  Protocol  relating  to  the  obligations  to  make  contributions
under  Article  10  of  the  1971  Fund  Convention  as  amended  by  this  Protocol  with
respect  to  an  incident  referred  to  in  Article  12,  paragraph  2(b),  of  that  amended
Convention  and  occurring  before  the  denunciation  takes  effect  shall  continue  to
apply.

Article 35
Extraordinary sessions of the Assembly

Any Contracting State may, within ninety days after the deposit of an instrument of
denunciation  the  result  of which it considers will significantly increase the  level  of
contributions  for  the  remaining  Contracting  States,  request  the  Director  to  convene
an extraordinary session of the Assembly. The Director shall convene the Assembly
to meet not later than sixty days after receipt of the request.

The  Director  may  convene,  on  his  own  initiative,  an  extraordinary  session  of  the
Assembly  to  meet  within  sixty  days  after  the  deposit  of  any  instrument  of
denunciation,  if  he  considers  that  such  denunciation  will  result  in  a  significant
increase in the level of contributions of the remaining Contracting States.

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 for the remaining Contracting States, any such State may, not later than
one hundred and twenty days before the date on which the denunciation takes effect,
denounce this Protocol with effect from the same date.

54

Article 36
Termination

1.

2.

This Protocol shall cease to be in force on the date when the number of Contracting
States falls below three.

States which are bound by this Protocol on the day before the date it ceases to be in
force shall enable the Fund to exercise its functions as described under Article 37 of
this Protocol and shall, for that purpose only, remain bound by this Protocol.

Article 37
Winding up of the Fund

1.

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

2.

3.

1.

2.

(a)  meet  its  obligations  in  respect  of  any  incident  occurring  before  the  Protocol
ceased to be in force;

(b)  be  entitled  to  exercise  its  rights  to  contributions  to  the  extent  that  these
contributions are necessary to meet the obligations under subparagraph (a), including
expenses for the administration of the Fund necessary for this purpose.

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

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

Article 38
Depositary

This Protocol and any amendments accepted under Article 33 shall be deposited with
the Secretary-General of the Organization.

The Secretary-General of the Organization shall:

(a)

inform all States which have signed or acceded to this Protocol of:

(i)

(ii)

each  new  signature  or  deposit  of  an  instrument  together  with  the  date
thereof;

each declaration and notification under Article 30 including declarations
and  withdrawals  deemed  to  have  been  made  in  accordance  with  that
Article;

(iii)

the date of entry its force of this Protocol;

(iv)

(v)

the date by which denunciations provided for in Article 31 are required to
be made;

any  proposal  to  amend  limits  of  amounts  of  compensation  which  has
been made in accordance with Article 33, paragraph 1;

55

(vi)

any  amendment which has  been  adopted in accordance  with Article  33,
paragraph 4;

(vii) any  amendment  deemed  to  have  been  accepted  under  Article  33,
paragraph 7, together with the date on which that amendment shall enter
into force in accordance with paragraphs 8 and 9 of that Article;

(viii) the  deposit  of  an  instrument  of  denunciation  of  this  Protocol  together

with the date of the deposit and the date on which it takes effect;

(ix)

any denunciation deemed to have been made under Article 34, paragraph
5;

(x)

any communication called for by any Article in this Protocol;

(b)

transmit certified true copies of this Protocol to all Signatory States and to all
States which accede to the Protocol.

3.

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

Article 39
Languages

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

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

IN  WITNESS  WHEREOF  the  undersigned  being  duly  authorized  for  that  purpose  have
signed this Protocol.

56