International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996

International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 in United States

International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996

Text approved by the Conference

THE STATES PARTIES TO THE PRESENT CONVENTION,

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

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

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

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

HAVE AGREED as follows:

Chapter I

GENERAL PROVISIONS

Definitions

Article 1

For the purposes of this Convention:

1 “Ship” means any seagoing vessel and seaborne craft, of any type whatsoever.

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

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

4 “Receiver” means either:

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

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

5 “Hazardous and noxious substances” (HNS) means:

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

(i) oils carried in bulk listed in appendix I of Annex I to the International
Convention for the Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto, as amended;

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

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

(iv) dangerous, hazardous and harmful substances, materials and articles in packaged
form covered by the International Maritime Dangerous Goods Code, as amended;

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

(vi) liquid substances carried in bulk with a flashpoint not exceeding 60 C
(measured by a closed cup test);
(vii) solid bulk materials possessing chemical hazards covered by appendix B of
the Code of Safe Practice for Solid Bulk Cargoes, as amended, to the extent that
these substances are also subject to the provisions of the International Maritime
Dangerous Goods Code when carried in packaged form; and

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

6 “Damage” means:

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

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

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

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

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

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

7 “Preventive measures” means any reasonable measures taken by any person after
an incident has occurred to prevent or minimize damage.

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

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

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

11 The “HNS Fund” means the International Hazardous and Noxious Substances Fund
established under article 13.

12 “Unit of account” means the Special Drawing Right as defined by the
International Monetary Fund.

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

14 “Terminal” means any site for the storage of hazardous and noxious substances
received from waterborne transportation, including any facility situated off-shore
and linked by pipeline or otherwise to such site.

15 “Director” means the Director of the HNS Fund.

16 “Organization” means the International Maritime Organization.

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

Annexes

Article 2

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

Scope of application

Article 3

This Convention shall apply exclusively:

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

(b) to damage by contamination of the environment caused in the exclusive economic
zone of a State Party, established in accordance with international law, or, if a
State Party has not established such a zone, in an area beyond and 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;

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

(d) to preventive measures, wherever taken.
Article 4

1 This Convention shall apply to claims, other than claims arising out of
any contract for the carriage of goods and passengers, for damage arising
from the carriage of hazardous and noxious substances by sea.

2 This Convention shall not apply to the extent that its provisions are
incompatible with those of the applicable law relating to workers’
compensation or social security schemes.

3 This Convention shall not apply:

(a) to pollution damage as defined in the International Convention on Civil
Liability for Oil Pollution Damage, 1969, as amended, whether or not
compensation is payable in respect of it under that Convention; and

(b) to damage caused by a radioactive material of class 7 either in the
International Maritime Dangerous Goods Code, as amended, or in appendix B
of the Code of Safe Practice for Solid Bulk Cargoes, as amended.

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

5 A State Party may decide to apply this Convention to its warships or other
vessels described in paragraph 4, in which case it shall notify the
Secretary-General thereof specifying the terms and conditions of such application.

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

Article 5

1 A State may, at the time of ratification, acceptance, approval of, or
accession to, this Convention, or any time thereafter, declare that this
Convention does not apply to ships:

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

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

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

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

3 Any State which has made the declaration under paragraph 1 or 2 may withdraw
such declaration at any time.
4 A declaration made under paragraph 1 or 2, and the withdrawal of the
declaration made under paragraph 3, shall be deposited with the
Secretary-General who shall, after the entry into force of this Convention,
communicate it to the Director.

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

6 The HNS Fund is not liable to pay compensation for damage caused by substances
carried by a ship to which the Convention does not apply pursuant to a
declaration made under paragraph 1 or 2, to the extent that:

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

(i) the territory, including the territorial sea, of the State which has made
the declaration, or in the case of neighbouring States which have made a
declaration under paragraph 2, of either of them; or

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

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

Duties of State Parties

Article 6

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

Chapter II

LIABILITY

Liability of the owner

Article 7

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

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

(a) the damage resulted from an act of war, hostilities, civil war, insurrection
or a natural phenomenon of an exceptional, inevitable and irresistible
character; or

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

(c) the damage was wholly caused by the negligence or other wrongful act of
any Government or other authority responsible for the maintenance of lights or
other navigational aids in the exercise of that function; or

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

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

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

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

3 If the owner proves that the damage resulted wholly or partly either from an
act or omission done with intent to cause damage by the person who suffered
the damage or from the negligence of that person, the owner may be exonerated
wholly or partially from liability to such person.

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

5 Subject to paragraph 6, no claim for compensation for 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; and

(f) the servants or agents of persons mentioned in (c), (d) and (e);

unless the damage resulted from their personal act or omission, committed with the
intent to cause such damage, or recklessly and with knowledge that such damage
would probably result.

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

Incidents involving two or more ships

Article 8

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

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

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

Limitation of liability

Article 9

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

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

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

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

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

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

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

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

4 Subject to the provisions of article 11, the fund shall be distributed among the
claimants in proportion to the amounts of their established claims.

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

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

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

8 Claims in respect of expenses reasonably incurred or sacrifices reasonably made
by the owner voluntarily to prevent or minimize damage shall rank equally with
other claims against the fund.

9 (a) The amounts mentioned in paragraph 1 shall be converted into national
currency on the basis of the value of that currency by reference to the Special
Drawing Right on the date of the constitution of the fund referred to in paragraph
3. The value of the national currency, in terms of the Special Drawing Right, of a
State Party which is a member of the International Monetary Fund, shall be
calculated in accordance with the method of valuation applied by the International
Monetary. Fund in effect on the date in question for its operations and
transactions. The value of the national currency, in terms of the Special Drawing
Right, of a State Party which is not a member of the International Monetary Fund,
shall be calculated in a manner determined by that State.

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

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

10 For the purpose of this article the ship’s tonnage shall be the gross tonnage
calculated in accordance with the tonnage measurement regulations contained in
Annex I of the International Convention on Tonnage Measurement of Ships. 1969.

11 The insurer or other person providing financial security shall be entitled to
constitute a fund in accordance with this article on the same conditions and having
the same effect as if it were constituted by the owner. Such a fund may be
constituted even if, under the provisions of paragraph 2, the owner is not entitled
to limitation of liability, but its constitution shall in that case not prejudice
the rights of any claimant against the owner.

Article 10

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

(a) no person having a claim for damage arising out of that incident shall be
entitled to exercise any right against any other assets of the owner in respect of
such claim; and

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

2 The foregoing shall, however, only apply if the claimant has access to the court
administering the fund and the fund is actually available in respect of the claim.

Death and injury

Article 11

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

Compulsory insurance of the owner

Article 12

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

2 A compulsory insurance 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 State Party has determined
that the requirements of paragraph 1 have been complied with. With respect to a
ship registered in a State Party such compulsory insurance certificate shall be
issued or certified by the appropriate authority of the State of the ship’s
registry; with respect to a ship not registered in a State Party it may be issued
or certified by the appropriate authority of any State Party. This compulsory
insurance certificate shall be in the form of the model set out in Annex I and
shall contain the following particulars:

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

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

(c) IMO ship identification number;

(d) type and duration of security;

(e) name and principal place of business of insurer or other person giving security
and, where appropriate, place of business where the insurance or security is
established; and

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

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

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

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

6 The State of the ship’s registry shall, subject to the provisions of this
article, determine the conditions of issue and validity of the compulsory insurance
certificate.

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

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

9 Any sums provided by insurance or by other financial security maintained in
accordance with paragraph 1 shall be available exclusively for the satisfaction of
claims under this Convention.

10 A State Party shall not permit a ship under its flag to which this article
applies to trade unless a certificate has been issued under paragraph 2 or 12.

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

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

Chapter III

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

Establishment of the HNS Fund

Article 13

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

(a) to provide compensation for damage in connection with the carriage of hazardous
and noxious substances by sea, to the extent that the protection afforded by
chapter II is inadequate or not available; and

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

2 The HNS Fund shall in each State Party be 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 State Party shall
recognize the Director as the legal representative of the HNS Fund.

Compensation

Article 14

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

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

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

(c) because the damage exceeds the owner’s liability under the terms of chapter II.

2 Expenses reasonably incurred or sacrifices reasonably made by the
owner voluntarily to prevent or minimize damage shall be treated as damage for the
purposes of this article.

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

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

(b) the claimant cannot prove that there is a reasonable probability that the
damage resulted from an incident involving one or more ships.

4 If the HNS Fund proves that the damage resulted wholly or partly either from an
act or omission done with intent to cause damage by the person who suffered the
damage or from the negligence of that person, the HNS Fund may be exonerated wholly
or partially from its obligation to pay compensation to such person. The HNS Fund
shall in any event be exonerated to the extent that the owner may have been
exonerated under article 7, paragraph 3. However, there shall be no such
exoneration of the HNS Fund with regard to preventive measures.

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

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

(c) Interest accrued on a fund constituted in accordance with article 9,
paragraph 3, if any, shall not be taken into account for the computation of the
maximum compensation payable by the HNS Fund under this article.

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

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

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

Related tasks of the HNS Fund

Article 15

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

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

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

Expenditure:

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

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

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

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

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

(vi) any other income;

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

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

General provisions on contributions

Article 16

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

2 The HNS Fund shall, subject to article 19, paragraphs 3 and 4, also have
separate accounts in respect of:

(a) oil as defined in article 1, paragraph 5(a)(i) (oil account);

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

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

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

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

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

6 “Associated person” means any subsidiary or commonly controlled entity. The
question whether a person comes within this definition shall be determined by the
national law of the State concerned.

General provisions on annual contributions

Article 17

1 Annual contributions to the general account and to each separate account shall be
levied only as required to make payments by the account in question.

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

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

4 The Assembly may also levy annual contributions for administrative costs and
decide on the distribution of such costs between the sectors of the general account
and the separate accounts.

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

Annual contributions to the general account

Article 18

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

(a) solid bulk materials referred to in article 1, paragraph 5(a)(vii);

(b) substances referred to in paragraph 2; and

(c) other substances.

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

Annual contributions to separate accounts

Article 19

1 Subject to article 16, paragraph 5, annual contributions to separate accounts
shall be made in respect of each State Party:

(a) in the case of the oil account,

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

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

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

(c) in the case of the LPG account, by any person who in the preceding calendar
year, or such other year as the Assembly may decide, was the receiver in that State
of total quantities exceeding 20,000 tonnes of LPG.

2 Subject to paragraph 3, the separate accounts referred to in paragraph 1 above
shall become effective at the same time as the general account.

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

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

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

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

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

(a) the quantities of contributing cargo in respect of that account during the
preceding calendar year fall below the respective level specified in paragraph 3; or

(b) when six months have elapsed from the date when the contributions were due, the
total unpaid contributions to that account exceed ten per cent of the most recent
levy to that account in accordance with paragraph 1.

5 The Assembly may reinstate the operation of a separate account which has been
suspended in accordance with paragraph 4.

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

Initial contributions

Article 20

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

2 The fixed sum and the units for the different sectors within the general account
as well as for each separate account referred to in paragraph 1 shall be determined
by the Assembly.

3 Initial contributions shall be paid within three months following the date on
which the HNS Fund issues invoices in respect of each State Party to persons liable
to pay contributions in accordance with paragraph 1.

Reports

Article 21

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

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

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

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

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

(a) notify the HNS Fund that that State will pay the aggregate amount for each
account in respect of the relevant year in one lump sum to the HNS Fund; or

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

Non-payment of contributions

Article 22

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

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

Optional liability of States Parties for the payment of contributions

Article 23

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

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

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

4 A declaration made in accordance with this article may be withdrawn by the
relevant State giving notice thereof in writing to the Director. Such a
notification shall take effect three months after the Director’s receipt thereof.

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

Organization and administration

Article 24

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

Assembly

Article 25
The Assembly shall consist of all States Parties to this Convention.

Article 26

The functions of the Assembly shall be:

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

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

(c) to develop, apply and keep under review internal and financial regulations
relating to the aim of the HNS Fund as described in article 13, paragraph 1(a), and
the related tasks of the HNS Fund listed in article 15;

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

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

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

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

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

(i) to establish a Committee on Claims for Compensation with at least 7 and not
more than 15 members and any temporary or permanent subsidiary body it may consider
to be necessary, to define its terms of reference and to give it the authority
needed to perform the functions entrusted to it; when appointing the members of
such body the Assembly shall endeavour to secure an equitable geographical
distribution of members and to ensure that the States Parties are appropriately
represented; the Rules of Procedure of the Assembly may be applied, mutatis
mutandis, for the work of such subsidiary body;

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

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

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

(m) to review every five years the implementation of this Convention with
particular reference to the performance of the system for the calculation of levies
and the contribution mechanism for domestic trade; and

(n) to perform such other functions as are allocated to it under this Convention or
are otherwise necessary for the proper operation of the HNS Fund.

Article 27

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

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

Article 28

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

Secretariat

Article 29

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

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

Article 30

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

HNS Fund and the Assembly.

2 The Director shall in particular:

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

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

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

(d) to the extent necessary to deal with claims against the HNS Fund and to carry
out the other functions of the HNS Fund, employ the services of legal, financial
and other experts;

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

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

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

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

Article 31

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

Finances

Article 32

1 Each State Party shall bear the salary, travel and other expenses of its own
delegation to the Assembly and of its representatives on subsidiary bodies.

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

Voting

Article 33

The following provisions shall apply to voting in the Assembly:

(a) each member shall have one vote;

(b) except as otherwise provided in article 34, decisions of the Assembly shall be
made by a majority vote of the members present and voting;

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

(d) for the purpose of this article the phrase “members present” means
“members present at the meeting at the time of the vote”, and the phrase
“members present and voting” means “members present and casting an affirmative
or negative vote”. Members who abstain from voting shall be considered as not voting.

Article 34

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

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

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

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

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

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

Tax exemptions and currency regulations

Article 35

1 The HNS Fund, its assets, income, including contributions, and other property
necessary for the exercise of its functions as described in article 13, paragraph 1,
shall enjoy in all States Parties exemption from all direct taxation.

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

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

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

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

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

Confidentiality of information

Article 36

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

Chapter IV

CLAIMS AND ACTIONS

Limitation of actions

Article 37

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

2 Rights to compensation under chapter III shall be extinguished unless an action
is brought thereunder or a notification has been made pursuant to article 39,
paragraph 7, within three years from the date when the person suffering the damage
knew or ought reasonably to have known of the damage.

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

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

Jurisdiction in respect of action against the owner

Article 38

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

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

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

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

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

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

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

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

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

Article 39

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

2 In the event that the ship carrying the hazardous or noxious substances which
caused the damage has not been identified, the provisions of article 38,
paragraph 1, shall apply mutatis mutandis to actions against the HNS Fund.

3 Each State Party shall ensure that its courts have jurisdiction to entertain such
actions against the HNS Fund as are referred to in paragraph 1.

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

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

6 Except as otherwise provided in paragraph 7, the HNS Fund shall not be bound by
any judgement or decision in proceedings to which it has not been a party or by any
settlement to which it is not a party.

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

Recognition and enforcement

Article 40

1 Any judgement given by a court with jurisdiction in accordance with article 38,
which is enforceable in the State of origin where it is no longer subject to
ordinary forms of review, shall be recognized in any State Party, except:

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

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

2 A judgement recognized under paragraph 1 shall be enforceable in each State Party
as soon as the formalities required in that State have been complied with. The
formalities shall not permit the merits of the case to be re-opened.

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

Subrogation and recourse

Article 41

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

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

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

Supersession clause

Article 42

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

Chapter V

TRANSITIONAL PROVISIONS

Information on contributing cargo

Article 43

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

First session of the Assembly

Article 44

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

Chapter VI

FINAL CLAUSES

Signature, ratification, acceptance, approval and accession

Article 45

1 This Convention shall be open for signature at the Headquarters of the
Organization from 1 October 1996 to 30 September 1997 and shall thereafter remain
open for accession.

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

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

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

(c) accession.

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

Entry into force

Article 46

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

(a) at least twelve States, including four States each with not less than 2 million
units of gross tonnage, have expressed their consent to be bound by it, and

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

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

Revision and amendment

Article 47

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

2 The Secretary-General shall convene a conference of the States Parties to this
Convention for revising or amending the Convention, at the request of six States
Parties or one-third of the States Parties, whichever is the higher figure.

3 Any consent to be bound by this Convention expressed after the date of entry into
force of an amendment to this Convention shall be deemed to apply to the Convention
as amended.

Amendment of limits

Article 48

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

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

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

4 All Contracting States, 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.

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

6 When acting on a proposal to amend the limits, the Legal Committee shall take
into account the experience of incidents and, in particular, the amount of damage
resulting therefrom, changes in the monetary values and the effect of the proposed
amendment on the cost of insurance. It shall also take into account the
relationship between the limits established in article 9, paragraph 1, and those
in article 14, paragraph 5.

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

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

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

8 Any amendment adopted in accordance with paragraph 5 shall be notified by the
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 no less than one-fourth of the States which were
Contracting States at the time of the adoption of the amendment have communicated
to the Secretary-General that they do not accept the amendment, in which case the
amendment is rejected and shall have no effect.

9 An amendment deemed to have been accepted in accordance with paragraph 8 shall
enter into force eighteen months after its acceptance.

10 All Contracting States shall be bound by the amendment, unless they denounce
this Convention in accordance with article 49, 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.

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

Denunciation

Article 49

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

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

3 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.

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

Extraordinary sessions of the Assembly

Article 50

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

2 The Director 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 considers that such denunciation will result in a
significant increase in the level of contributions from the remaining States Parties.

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

Cessation

Article 51

1 This Convention shall cease to be in force:

(a) on the date when the number of States Parties falls below 6; or

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

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

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

Winding up of the HNS Fund

Article 52

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

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

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

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

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

Depositary

Article 53

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

2 The Secretary-General shall:

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

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

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

(iii) any proposal to amend the limits on the amounts of compensation which has
been made in accordance with article 48, paragraph 2;

(iv) any amendment which has been adopted in accordance with article 48,
paragraph 5;

(v) any amendment deemed to have been accepted under article 48, paragraph 8,
together with the date on which that amendment shall enter into force in accordance
with paragraphs 9 and 10 of that article;

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

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

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

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

Languages

Article 54

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

DONE AT LONDON this third day of May one thousand nine hundred and
ninety-six.


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