Malaysia has ratified the following international conventions adopted by the International Maritime Organisation relating to marine pollution:
- the 1978 Protocol relating to the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), as amended (Annexes I and II);
- MARPOL 73/78, Annex V;
- the International Convention on Oil Pollution Preparedness, Response and Cooperation 1990;
- the International Convention on Civil Liability for Oil Pollution Damage 1992;
- the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992;
- the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001;
- the International Convention on Limitation of Liability for Maritime Claims, as amended by the 1996 Protocol;
- MARPOL 73/78, Annex III: Regulations for Prevention of Pollution by Harmful Substances carried by Sea in Packaged Form;
- MARPOL 73/78, Annex IV: Regulations for the Prevention of Pollution from Ships;
- MARPOL 73/78, Annex VI: Regulations for the Prevention of Air Pollution from Ships; and
- the International Convention on the Control of Harmful Anti-fouling System on Ships.
Domestically, there are two key items of legislation that address marine pollution from ships - the Merchant Shipping (Oil Pollution) Act 1994 and the Merchant Shipping Ordinance 1952. Both were recently amended in order to bring domestic legislation into line with international conventions on the prevention of oil pollution.
Merchant Shipping (Oil Pollution) Act
The Merchant Shipping (Oil Pollution) Act, which came into force on April 6 1995, imposes civil liability for oil pollution on the owner of a ship causing such pollution damage. Under the act, 'pollution damage' is defined to include:
- loss or damage caused outside a ship by contamination resulting from the discharge or escape of oil from the ship, wherever such discharge or escape may occur; and
- the cost of preventive measures and further loss or damage caused by the preventive measures.
The act defines 'preventive measures' as such reasonable measures taken by any person after an incident has occurred to prevent or minimise pollution damage.
Under Section 3 of the act, an action to enforce a claim in respect of civil liability must be commenced within three years of the date on which the pollution damage occurred or within six years of the date on which the incident that caused the pollution damage occurred. The act further gives the marine director the power to detain a ship which he or she has reason to believe has been used in the commission of an offence under the legislation.
In 2011 amendments to the act were passed, but these have yet to come into force. Essentially, the Merchant Shipping (Oil Pollution) (Amendment) Act 2011 aims to provide for matters relating to the implementation of the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 in Malaysia. Once the amendments come into force, the principal act will be known as the Merchant Shipping (Liability and Compensation for Oil and Bunker Pollution) Act 1994. The amendments bring civil liability for bunker oil pollution within the scope of the act.
Merchant Shipping Ordinance
Part VA of the Merchant Shipping Ordinance covers marine pollution resulting from ships. It applies to registered Malaysian vessels, foreign ships and pleasure craft, while in Malaysian waters, and fishing vessels. Section 306CA generally prohibits the discharge of oil or other harmful substances into any part of Malaysian waters and any Malaysian coast or reef. A contravention of this prohibition attracts a fine not exceeding RM50,000, a term of imprisonment not exceeding two years, or both.
In 2011 the ordinance was amended by the Merchant Shipping (Amendment and Extension) Act 2011 to provide for:
- amendments to the definition of certain terms under Part VA of the ordinance; and
- matters including the implementation in Malaysia of the Convention on Limitation of Liability for Maritime Claims, as amended by the 1996 protocol.
As in the case of the Merchant Shipping (Oil Pollution) (Amendment) Act, the Merchant Shipping (Amendment and Extension) Act has yet to come into force.
For further information on this topic please contact Rajasingam Gothandapani at Shearn Delamore & Co by telephone (+60 3 2070 0644), fax (+60 3 2078 5625) or email ([email protected]).