Oil Pollution Compensation Act of 2007 ( IRR of RA 9483 )
April 12, 2016
April 12, 2016
RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9483 ENTITLED "AN ACT PROVIDING FOR THE IMPLEMENTATION OF THE PROVISIONS OF THE 1992 INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE AND THE 1992 INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, PROVIDING PENALTIES FOR VIOLATIONS THEREOF, AND FOR OTHER PURPOSES"
RULE I
General Provisions
Pursuant to Sec. 24 of Republic Act No. 9483, otherwise known as the "Oil Pollution Compensation Act of 2007", these Implementing Rules and Regulations (IRR) are hereby promulgated:
SECTION 1. Declaration of Policy. —
It is the declared policy of the State to protect its marine wealth in its archipelagic waters, territorial sea contiguous zone and exclusive economic zone, adopts internationally accepted measures which impose strict liability for Oil Pollution Damage and ensure prompt and adequate compensation for persons who suffer such damage. This IRR adopts and implements Republic Act No. 9483 providing for the implementation of the provisions of the 1992 International Convention on Civil Liability for Oil Pollution Damage and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage.
SECTION 2. Definition of Terms. — For purposes of these Rules, the terms used herein shall be construed to have the following meanings:
2.1 "Act" refers to the Republic Act No. 9483, otherwise known as the Oil Pollution Compensation Act of 2007.
2.2 "CLC Certificate" means a document issued by the MARINA to a ship attesting that an insurance cover or other financial security is in force in accordance with the Act and this IRR.
2.3 "DOTC"/"the Department" means the Department of Transportation and Communications; CAIHTE
2.4 "MARINA" means the Maritime Industry Authority;
2.5 "PCG" means the Philippine Coast Guard;
2.6 "PPA" means the Philippine Ports Authority;
2.7 "Affiliate Corporation" means a corporation that is owned or subject to commoncorporate control by another corporation and operated as part of the latter's business;
2.8 "Contiguous Zone" means the zone contiguous to the territorial sea which may not extend beyond 24 nautical miles from the baselines from which the breadth of territorial sea is measured;
2.9 "Contributing Oil" means crude Oil and fuel Oil as herein defined:
2.9.1 "Crude Oil" means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation. It also includes crude Oils from which certain distillate fractions have been removed (which sometimes referred to as "topped crudes") or to which certain distillate fractions have been added (sometimes referred to as "spiked" or "reconstituted" crudes); and
2.9.2 "Fuel Oil" means heavy distillates or residues from crude Oil or blends of such materials intended for use as fuel for the production of heat or power of a quality equivalent to the "American Society for Testing and Materials Specification for Number Four Fuel Oil (Designation D 396-69)" or heavier;
2.10 "Delivery or transhipment" may be used interchangeably for purposes of the OPMF and means the shipment of oil from the depot, oil refinery or other storage facility to the point of destination regardless of any intermediate or intervening points of consolidation, de-consolidation, or change of means of transport of such oil;
2.11 "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;
2.12 "Insurance" means a guarantee of compensation for specified loss or damage issued by an insurance company in exchange for the payment of premium;
2.13 "IOPC Fund" means the International Oil Pollution Compensation Fund which was established through the 1992 Fund Convention; DETACa
2.14 "Other Financial Security" means a guarantee issued by a bank, or surety contract issued by an insurance company, or a certificate delivered by an international compensation fund, including a Certificate of Cover issued by a P & I Club;
2.15 "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 bunkers of such a Ship;
2.16 "Owner" means any person registered as the Owner of the Ship, or, in the absence of registration, the person or persons owning the Ship. However, in 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;
2.17 "Person" means any individual or partnership or any public or private body, whether corporate or not, including a State or Government or its constituent subdivisions;
2.18 "Pollution Damage" means:
2.18.1 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; and
2.18.2 The costs of preventive measures and further loss or damage caused by preventive measures;
2.19 "Preventive Measures" means any reasonable measures taken by any person after an Incident has occurred to prevent or minimize Pollution Damage; aDSIHc
2.20 "Ship" means any sea-going vessel and sea-home 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. The two (2) categories of ship under these Rules are as follows:
2.20.1 "Philippine Ship" means a ship as defined in these Rules which has been granted the privilege of flying the Philippine flag; and
2.20.2 "Ship of foreign registry" means a ship as defined in these Rules which is not a Philippine registered ship;
2.21 "Regional Trial Court" means the court of general jurisdiction where an action for compensation on account of Pollution Damage may be filed;
2.22 "Special Drawing Right" means an international type of monetary reserve currency, created by the International Monetary Fund (IMF) in 1969, which operates as a supplement to the existing reserves of member countries;
2.23 "State of the Ship's Registry" means in relation to registered Ships, the State of registration of the Ship and in relation to unregistered Ships, the State whose flag the Ship is flying;
2.24 "Subsidiary Corporation" means a corporation in which control, in the form of ownership of majority shares, is in another corporation, called the parent corporation;
2.25 "Terminal Installation" shall mean any site for the storage of oil in bulk which is capable of receiving oil from waterborne transportation, including any facility situated off-shore and linked to such site;
2.26 "Unit in Account" shall mean to the Special Drawing Account (SDR) as defined by the International Monetary Fund (IMF);
2.27 "1992 Civil Liability Convention" shall mean the 1992 International Convention on Civil Liability for Oil Pollution Damage or any amendments which have entered into force and which are binding upon the Philippines in accordance with the terms of the Convention;
2.28 "1992 Fund Convention" means the 1992 International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage or any amendments which have entered into force and which are binding upon the Philippines in accordance with the terms of the Convention; ETHIDa
2.29 "Territory" refers to the national territory of the Philippines to the landward side of its baselines which comprise the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, including its internal waters as well as the waters around, between and connecting the islands of the archipelago comprising its archipelagic waters, regardless of their breadth and dimensions;
2.30 "Territorial Sea" refers to that belt of water not exceeding twelve nautical miles surrounding the Philippine archipelago seaward of its baselines as such baseline are delineated by Republic Act No. 3046 as amended by Republic Act No. 5446;
2.31 "Exclusive Economic Zone" means that area of the sea extending to a distance of 200 nautical miles from and beyond the baselines of the Philippine archipelago, as such baselines are delineated by Republic Act No. 3046 and amended by Republic Act No. 5446, from which the territorial seas is measured;
2.32 "Ship Tonnage" means the gross tonnage of a ship calculated in accordance with the tonnage measurement regulations as provided in the International Convention on Tonnage Measurement of Ships 1969;
2.33 "High Seas" means open waters of an ocean or sea, beyond the waters over which the Philippines exercises jurisdiction or sovereignty.
SECTION 3. Incorporation of the 1992 Civil Liability Convention and 1992 Fund Convention. — This IRR incorporates and implements the provisions of the Act, the 1992 Civil Liability Convention and the 1992 Fund Convention and their subsequent amendments as part of the law of the Republic of the Philippines.
SECTION 4. Scope of Application. — This IRR shall apply exclusively to the following:
4.1 Pollution damage caused by Philippine ships or ships of foreign registry in the territory, including the territorial sea, and in the exclusive economic zone of the Philippines.
4.2 Preventive measures, wherever taken, to prevent or minimize pollution damage.
RULE II
Jurisdiction; Powers; Duties and Functions of the DOTC, MARINA, PCG, PPA and Other Concerned Government Agencies and Offices
SECTION 1. The Department of Transportation and Communications (DOTC). — The DOTC under Republic Act No. 9483 shall have the power and authority over the following undertakings: cSEDTC
1.1 Formulate policies for the planning and implementation of a comprehensive program for the maintenance of an efficient:
1.1.1 system requiring the maintenance of compulsory insurance or other financial security and certification attesting to the existence of such coverage (Chapter IV, Sections 12 and 13, RA No. 9483);
1.1.2 investigation for claims for compensation arising from this Act (Chapter VI, Section 17, RA No. 9483);
1.1.3 system of administration of the Oil Pollution Management Fund (Chapter VIII, Section 22, RA No. 9483);
1.2 Require the submission of a periodic report on:
1.2.1 the issuance of CLC certificates by the MARINA;
1.2.2 the investigations and inspections conducted by the PCG for claims for compensation arising from this Act;
1.2.3 complaints filed by the PCG before the RTC after its investigation; and
1.2.4 administration of the Oil Pollution Management Fund (OPMF) by the MARINA;
1.3 Require ship owners to immediately constitute a fund with the Regional Trial Court (RTC) in the total sum representing the limit of his liability to cover liabilities arising from pollution damage upon occurrence of an incident;
1.4 Formulate such other rules and regulations as may be necessary to implement the objectives of the Act and this IRR;
1.5 Issue administrative regulations, as may be necessary to carry out the provisions of the Act and this IRR.
SECTION 2. Jurisdiction; Powers; Duties and Functions of MARINA. — The MARINA under Republic Act No. 9483 shall have the power and authority to:
2.1 Assist the PCG in the design, review, revision, as necessary, of the claims manual as required by the Act and this IRR in coordination with the relevant agency/ies;
2.2 Require owners to maintain compulsory insurance or other financial security (Rule VI, Section 1);
2.3 Issue a certificate attesting that an insurance cover or other financial security is in force in accordance with the Act and this IRR;
2.4 Administer the OPMF (Rule X, Section 1);
2.5 Conduct research, enforcement and monitoring activities for the effective implementation of this Act;
2.6 Submit periodic reports to DOTC on CLC certificates issued by MARINA and financial reports relative to the administration of the OPMF;
2.7 Monitor cases filed with the RTC for the recovery of claims for pollution damage;
2.8 Perform such other functions necessary to implement the provisions of the Act and this IRR; SDAaTC
2.9 Issue administrative Regulations, as may be necessary to carry out the provisions of the Act and this IRR.
SECTION 3. Jurisdiction; Powers; Duties and Functions of PCG. — The PCG under Republic Act No. 9483 shall have the power and authority over the following undertakings:
3.1 Conduct inspection of CLC Certificates of ships entering and voyaging within the Philippine territorial waters in accordance with the exercise of its port state control functions provided that such inspection shall not cause undue delay to the ships;
3.2 Investigate motu proprio or through written undertaking of a complainant any incident, claim for compensation or violation of this Act;
3.3 Prepare claim requirements and file appropriate action with the RTC:
3.3.1 Verify and certify the correctness of the claims for compensation of Local Government Unit/s (LGU/s) or individual/s affected by oil pollution damage.
3.3.2 Assist LGU/s concerned in the preparation of their claims for compensation.
3.3.3 Assist individual claimants in the preparation of their respective claims.
3.3.4 Consolidate all claims for the clean-up compensation and file the appropriate action with the RTC.
3.4 Provide the complainant necessary technical evidence or any assistance, whether testimonial or documentary, insofar as the claim for compensation or violation of this Act is concerned:
3.4.1 Assist the claimant/s, LGU/s and/or individual/s in their gathering/preparation of evidence for their claims for compensation.
3.5 Assist any person suffering from pollution damage in presenting a claim to the IOPC Fund if he is unable to obtain full and adequate compensation for pollution damage for any of the causes provided in Article 4 of the 1992 Fund Convention as follows:
3.5.1 Because no liability for the damage arises under the 1992 CLC.
3.5.2 Because the owner liable for the damage under the 1992 CLC is financially incapable of meeting his obligations in full and any financial security that may be provided does not cover or is insufficient to satisfy the claims for compensation for the damage.
3.5.3 Because the damages exceeds the owner's liability under the 1992 CLC, the Act and this IRR.
3.6 In coordination with the Department of Foreign Affairs (DFA), secure the assistance from the IOPC Fund in promptly obtaining personnel, material, and services as are necessary to take measures to prevent or mitigate pollution damage arising from an incident in respect of which the IOPC Fund may be called upon to pay compensation under the 1992 Fund Convention; acEHCD
3.7 Undertake the immediate containment, removal and clean-up operations of all oil pollution cases in accordance with the National Oil Spill Contingency Plan:
3.7.1 Coordinate with concerned LGU/s in the immediate containment, removal and clean-up operations of all pollution cases;
3.7.2 Cease clean-up operations upon coordination with Department of Environment and Natural Resources (DENR), LGU and other agencies as to the determination of the successful elimination of pollution damage.
3.8 Conduct research on effective and efficient methods for cleaning-up of oil spills, protecting the marine environment and preventing or minimizing damage of oil spills to the environment;
3.9 Assist in determining and reviewing periodically the amount of owner's/operator's contribution to the OPMF, as member of the OPMF Committee;
3.10 Intervene in any incident on the high seas that could threaten Philippine waters with oil pollution;
3.11 Maintenance of Aids to navigation;
3.12 Submit to MARINA a report on the disbursement of funds released to PCG;
3.13 Issue Administrative Regulations, as may be necessary to carry out the provisions of the Act and this IRR;
3.14 Determine the volume of oil spilled and to coordinate with the Bureau of Customs (BOC) to determine the volume of petroleum and oil products made by oil importers in the Philippines.
SECTION 4. Jurisdiction; Powers; Duties and Functions of PPA and Other Port Authorities, Including Those in Economic Zones. — The PPA under Republic Act No. 9483 shall have the power and authority over the following undertakings:
4.1 Deny port services to ships and prevent loading and unloading of cargo by ship without required CLC Certificates;
4.2 Provide services (whether on its own, by contract, or otherwise) within the Port District and the approaches thereof, including but not limited to —
4.2.1 berthing, towing, mooring, moving, slipping, or docking any vessel;
4.2.2 loading or discharging any vessel;
4.2.3 sorting, weighing, measuring, warehousing, or otherwise, handling goods;
4.2.4 Regulate the entry to, exit from and movement within the port of watercraft;
4.2.5 Deny clearance for berthing and provision of port services to vessel without a valid certificate of insurance or financial security for Pollution Damage required by this Act;
4.2.6 Issue administrative regulations as may be necessary to carry out the provisions of the Act and these Regulations. SDHTEC
SECTION 5. Jurisdiction; Powers; Duties and Functions of DENR. — The DENR under Republic Act No. 9483 shall have the power and authority over the following undertakings:
5.1 To conduct research and coordinate with DOTC, MARINA, PPA, PCG and other government agencies in the implementation of this IRR;
5.2 Issue administrative regulations, as may be necessary to carry out the provisions of the Act and these Regulations.
SECTION 6. Jurisdiction; Powers; Duties and Functions of DOE. — The DOE under Republic Act No. 9483 shall have the power and authority over the following undertakings:
6.1 To validate oil companies report on the amount of contributing oil received pursuant to the 1992 IOPC Funds. To submit the certified report to Department of Foreign Affairs (DFA), copy furnished the MARINA and PCG;
6.2 The DOE, for purposes of Inter-Agency monitoring, shall require shipping companies operating tankers and haulers of contributing Oil to submit a report of the amount of contributing Oil carried as cargo in bulk to all ports and terminal installations within the Philippines in a calendar year. The DOE shall also require oil companies to report sales/deliveries of persistent oil;
6.3 To reconcile monthly with PCG and PPA the volume of Oil cargo loaded/unloaded to Ship, as defined in RA No. 9483, copy furnished the MARINA;
6.4 Coordinate with other government agencies relative to enforcement, research and monitoring activities pursuant to Section 22 of the Act; and
6.5 Issue such administrative regulations, to include sanctions, as may be necessary to carry out the provisions of the Act and these Regulations.
SECTION 7. Jurisdiction; Powers; Duties and Functions of DFA. — The DFA under Republic Act No. 9483 shall have the power and authority over the following undertakings:
7.1 Represent with the IOPC Fund the Philippine Government on matters relating to the implementation of this Act;
7.2 Communicate to the IOPC Fund the amount of contributing oil delivered to the Philippines as reported and certified by DOE;
7.3 Issue such administrative regulations, to include sanctions, as may be necessary to carry out the provisions of the Act and these Regulations;
7.4 In coordination with PCG, inform the IOPC Fund of the occurrence of any pollution incident;
7.5 Assist the IOPC Fund in its participation in any legal action before RTC or any other Philippine Court of appropriate jurisdiction and secure the intervention of the IOPC Fund to allow it to participate in such legal action against the owner of the ship or his guarantor;
7.6 Inform the IOPC Fund of any proceeding that has been filed against the owner of the ship or his guarantor for compensation for pollution damage.
SECTION 8. Jurisdiction; Powers; Duties and Functions of OCD-NDCC. — The Office of Civil Defense-National Disaster Coordinating Council (OCD-NDCC) under Republic Act No. 9483 shall have the power and authority over the following undertakings:
8.1 Shall coordinate and monitor the disaster relief and recovery operations being done by national and local government units as well as the private sector in areas affected by oil spill; AScHCD
8.2 May recommend to the President, the Declaration of a State of Calamity in areas extensively damaged by the oil spill, as may be necessary;
8.3 May issue an NDCC Memorandum, as may be necessary, to carry out the provisions of RA No. 9483 and its IRR.
RULE III
Strict Liability for Oil Pollution Damage
SECTION 1. Liability on Pollution Damage. — The Owner of the 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.
SECTION 2. Liability of the Owner. — The liability of the Owner of a ship for pollution damage shall include, but not limited to:
2.1 Reasonable expenses actually incurred in clean-up operations at sea or on shore;
2.2 Reasonable expenses of Preventive Measures;
2.3 Consequential loss or loss of earnings suffered by Owners or users of property contaminated or damaged as a result of an Incident;
2.4 Pure economic loss or loss of earnings sustained by persons although the property contaminated or damaged as a direct result of an incident does not belong to them;
2.5 Damage to human health or loss of life as a direct result of the Incident, including expenses for rehabilitation and recuperation: Provided, That costs of studies or diagnoses to determine the long-term damage shall also be included; and
2.6 Environmental damages and other reasonable measures of environment restoration.
SECTION 3. Exempting Circumstances. — No liability as stated in the immediately preceding section shall attach to the Owner or his insurer if he proves that the damage:
3.1 Resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
3.2 Was wholly caused by an act or omission done with intent to cause damage by a third party; or
3.3 Was wholly caused by the negligence or other wrongful act of the government or other enforcement agencies responsible for the maintenance of lights or other navigational aids in the exercise of that function, however, the owner may be exonerated from liability, whether wholly or partially, if he proves that the pollution damage resulted wholly or partially 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.
SECTION 4. Persons Exempted from Claims for Compensation for Pollution Damage. — No claim for compensation for Pollution Damage under the Act and this IRR may be made against:
4.1 The servants or agents of the Owner or the members of the crew;
4.2 The pilot or any other person who, without being a member of the crew performs services for the Ship;
4.3 Any charterer, howsoever described, including a bareboat charterer, manager or operator of the Ship;
4.4 Any person performing salvage operations with the consent of the Owner or on the instructions of a competent public authority;
4.5 Any person taking Preventive Measures; and
4.6 All servants or agents of persons mentioned in paragraphs 4.3, 4.4 and 4.5 hereof, unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or committed recklessly and with knowledge that such damage would probably result: Provided, That nothing in this IRR shall prejudice any right of recourse of the Owner against third parties. AcICHD
SECTION 5. Joint and Several Liability. — When an Incident involving two or more Ships occurs and Pollution Damage results therefrom, the Owners of all the Ships concerned, unless exonerated under Section 3, Rule III hereof, shall be jointly and severally liable for all such damage which is not reasonably separable, without prejudice, however, to the right of recourse of any such Owners to proceed against each other or third parties.
RULE IV
System of Limitation of Liability
SECTION 1. Special Drawing Right. — The "unit of account" referred to under this Rule in the Special Drawing Right (SDR) as defined by the International Monetary Fund.
1.1 Conversion into national currency — The said amount shall be converted into national currency on the basis of the value of the currency by reference to the SDR on the date that the fund is constituted under Rule VI of this IRR.
The SDR is an international reserve asset, created by the IMF in 1969 to supplement the existing official reserves of member countries. SDRs are allocated to member countries in proportion to their IMF quotas. The SDR also serves as the unit of account of the IMF and some other international organizations. Its value is based on a basket of key international currencies.
SECTION 2. Limitation[s] of Liability. — The Owner shall be entitled to limit his liability with respect to a particular Incident to a total amount calculated as follows in accordance with the amendments to the 1992 CLC in accordance with Article 15 of the convention:
2.1 For a Ship not exceeding 5,000 gt — the limit is 4.51 Million SDR units of account.
2.2 For a Ship 5,000 gt to 140,000 gt — 4.51 Million SDR and for each additional unit of tonnage, 631 units of account in addition for each additional unit of tonnage.
2.3 For ship exceeding 140,000 gt — the limit is 89.77 Million SDR.
That aforementioned limit of liability of the Owner shall be subject to adjustment according to subsequent amendments to the 1992 Civil Liability Convention.
SECTION 3. Limitations on the Availment of Limited Liability. — The Owner shall not be entitled to limit his liability if it has been established that the pollution damage resulted from:
3.1 Personal act or omission of the Owner committed with intent to cause damage; or
3.2 Personal act or omission of the Owner committed recklessly and with knowledge that such damage would probably result.
SECTION 4. Court Action. — Limitations on the availment of the limited liability provided for under the preceding section shall be established in the Court.
RULE V
Constitution of a Fund
SECTION 1. Requirement for Limiting of Owner's Liability. — For the purpose of availing himself of the benefit of limitation under Section 2, Rule IV of this IRR following the occurrence of a particular incident, the Owner shall be required to constitute a fund for the total sum representing the limit of his liability with the MARINA to cover incidents causing pollution damage.
The insurer shall be entitled to constitute a fund in behalf of the Owner up to the maximum amount of the Owner's limit of liability. The constitution of the fund by the insurer shall have the same effects as if it were constituted by the Owner.
Any claim for compensation for Pollution Damage against the Owner, his insurer or other person providing financial security for the Owner's liability for Pollution Damage shall be brought directly before the RTC.
SECTION 2. How Fund Can be Constituted. — The fund can be constituted by depositing the sum or by producing a bank guarantee or other financial guarantee acceptable under existing laws and considered to be adequate by DOTC.
2.1 Constitution of CLC Fund by bank deposit — The owner shall execute an assignment of bank deposit in the amount equivalent to the limit of his liability under Section 1, Rule IV of this IRR.
2.1.1 The assignment shall be executed with any commercial bank or government banks in the Philippines with MARINA as the assignee;
2.1.2 The assignment shall contain the following conditions:
2.1.2.1 the assigned bank deposit shall constitute the fund for the purpose of claims for compensation from pollution damage under 1992 CLC; TAIaHE
2.1.2.2 the assignee shall be in full control of the amount constituted, excluding any bank interest earned;
2.1.2.3 during the assignment period, the assignor cannot withdraw from the said bank deposit, except for the bank interest earned; and
2.1.2.4 the assignment of bank deposit shall be terminated upon presentation by the assignor to the bank a written approval by the MARINA together with the Order from the RTC.
2.2 Constitution of a Fund through a bank guarantee or other financial security — The amount of bank guarantee or other financial security that may be produced by the Shipowner shall not be less than the limit of his liability.
2.2.1 Acceptable Bank or Financial Security shall be any one of the following:
2.2.1.1 Insurance Cover;
2.2.1.2 Other Financial Security;
2.2.1.3 Bank Guarantee;
2.2.1.4 Certificate delivered by an International Compensation Fund;
2.2.1.5 Surety contract from an insurance company;
2.2.1.6 Certificate of cover issued by an international protection and indemnity club; or
2.2.1.7 Other similar securities or guarantees.
SECTION 3. Compulsory Constitution of a Fund. — Consistent with the policy of the Act and this IRR, any Philippine-registered ship carrying Oil in bulk as Cargo which fails to constitute a Fund shall not be allowed to limit his liability following the occurrence of a pollution incident.
3.1 Any ship as defined in this IRR not possessing a valid CLC Certificate issued by MARINA shall be subject to the penalties provided under Rule X of this IRR;
Non-possession of a valid CLC Certificate or its equivalent during the occurrence of an incident/accident shall be a ground for detention of the ship.
SECTION 4. Effects of the Constitution of a Fund. — Where the Owner, after an incident, has constituted a fund and is entitled to limit his liability:
4.1 No person having a claim for pollution damage arising out of that incident shall be entitled to exercise any rights against any other assets of the Owner in respect of such claim;
4.2 The RTC shall order the release of any ship or other property belonging to the Owner which has been arrested, attached or garnished in respect of a claim for pollution damage arising out of that incident, and shall immediately release any bail or other security furnished to avoid such arrest or attachment.
The foregoing provision shall only apply if the claimant has access to the court administering the fund and the fund is actually available in respect of his claim.
SECTION 5. Right of Subrogation. — Upon constituting a fund, a corresponding CLC certificate described under Section 2, Rule VI shall be issued to the shipowner.
SECTION 6. Release of the Sum Deposited. — Upon receipt of a Writ of Execution or a Certification by the Court of the Compromise Agreement by the parties, MARINA shall release the fund equivalent to the amount of claims apportioned by the Court.
SECTION 7. Action by MARINA on Financial Guarantee. — MARINA shall notify party providing the financial guarantee, which has been accepted by MARINA for purposes of constituting a fund, to immediately remit to MARINA the amount equivalent to ship owner's limit of liability.
RULE VI
System of Compulsory Insurance and Certification
SECTION 1. Maintenance of Compulsory Insurance or Other Financial Security. — All Owners shall be required annually by the MARINA to maintain insurance or other financial security for Pollution Damage in the sums fixed by applying the limit of liability under Section 2, Rule IV of this IRR. cDHAES
SECTION 2. Issuance/Recognition of a Certificate. —
2.1 Philippine-registered Ship
2.1.1 A CLC certificate attesting that insurance or any other financial security is in force in accordance with the provisions of this IRR shall be issued by the MARINA to a Philippine registered ship which is rated to carry more than two thousand (2,000) tons of Oil in bulk as cargo;
2.1.2 An equivalent certificate attesting that insurance or any other financial security is in force shall be issued by the Marina to a Philippine-registered ship which is rated to carry less than two thousand (2,000) tons of Oil in bulk as cargo.
2.2 Foreign-registered Ships
2.2.1 Ships registered in Convention-Member States — A CLC Certificate issued to a foreign-registered ship by a convention-member State shall be recognized by the Philippines.
2.2.2 Ships not registered in a Convention-Member States — With respect to a Ship which is registered in a State which is not a party to the CLC, such certificate may be issued or certified by the MARINA. The local agent/representative(s) of the owner of the foreign ship entering the country for the purpose of bringing Oil in bulk covered by this IRR shall first secure a Certificate from MARINA, and such certificate shall be required by the PPA or any other port authorities during the implementation of Section 3, Rule VI.
SECTION 3. Acceptable Compulsory Insurance Cover. — Any of the following shall be considered as acceptable financial security for purposes of complying with the requirement of compulsory insurance cover:
3.1 Insurance Cover;
3.2 Other Financial Security;
3.3 Bank Guarantee;
3.4 Certificate delivered by an International Compensation Fund;
3.5 Surety contract from an insurance company;
3.6 Certificate of cover issued by an international protection and indemnity club; or
3.7 Other similar securities.
SECTION 4. Information Contained in a Certificate. — The Certificate to be issued by MARINA shall be in a form established by the 1992 Civil Liability Convention and shall contain the following particulars:
4.1 Name of ship and port of registration;
4.2 Name and principal place of business of owner;
4.3 Type of security;
4.4 Name and principal place of business of the insurer or other person giving security and, where appropriate, place of business where the insurer or security is established;
4.5 Validity period of the certificate which shall not be longer than the period of validity of the insurance or other financial security; and
4.6 Cargo carrying in tons of Oil.
SECTION 5. Procedure in the Issuance of CLC Certificate or Its Equivalent. — The MARINA, shall issue CLC Certificate or its equivalent upon compliance with the following:
5.1 Application in writing by the Owner or his authorized representative(s) with the MARINA, together with a photocopy of financial cover or any financial security verified by MARINA from the original copy.
5.2 Payment of appropriate filing fee.
5.2.1 The local agent/representative shall apply in writing with the MARINA, together with the original copy of the insurance cover or any financial security.
5.2.2 The local agent/representative shall pay the appropriate filing fee.
5.2.3 A certificate shall be issued by the MARINA both to a ship registered in a Convention-Member State and a ship registered in a State which is not a party to the CLC within the standard processing time.
SECTION 6. Enforcement. — The PCG shall conduct inspections of certificates of Ships entering the territory of the Philippines, or in the case of Ships registered in the Philippines voyaging within the said territory: Provided, That such inspections shall not cause undue delay to the Ships. ASEcHI
6.1 Ship carrying more than two thousand (2,000) tons of Oil in bulk as cargo shall not be allowed entry into Philippine territory or its exclusive economic zone without a valid CLC Certificate.
6.2 If any such Ship is found within the said territory or zone without such certificate, said Ship shall be prevented from loading or unloading its cargo until it is able to produce the appropriate CLC Certificate or its Equivalent under Section 2, Rule VI.
The PPA or any other port authorities shall deny port services to said Ship without such Certificate. The PCG shall prevent such Ships from leaving unless the appropriate fines under Rule IX shall have been paid to the MARINA.
The Owner and master of the Ship referred to in the immediately preceding paragraph shall be jointly and severally liable to the fines set forth in this IRR. Such Ship shall be prevented from leaving unless the appropriate fines shall have been paid to the full satisfaction of the MARINA.
RULE VII
Contribution to the International Oil Pollution Compensation Fund
SECTION 1. Contributions to the IOPC Fund. — Any person who has received more than one hundred fifty thousand (150,000) tons of contributing Oil in a calendar year in all ports or terminal installations in the Philippines through carriage by sea, shall pay contributions to the International Oil Pollution Compensation (IOPC) Fund in accordance with the provisions of the 1992 Fund Convention.
1.1 A person shall be deemed to have received contributing Oil, for contribution purposes, if he received the same:
1.1.1 From another country; or
1.1.2 From another port or terminal installation within the Philippines, notwithstanding that it had already been previously received by him.
1.2 Where the quantity of contributing Oil received by any person in the Philippines in a calendar year, when aggregated with the quantity of contributing Oil received in the Philippines in that year by its subsidiary or affiliate corporation, exceeds one hundred fifty thousand (150,000) tons, said person, including its subsidiaries, shall pay contributions in respect of the actual quantity received by each, notwithstanding that the actual quantity received by each did not exceed one hundred fifty thousand (150,000) tons.
1.3 Annual contributions to the IOPC Fund shall be paid by the receiver of contributing oil in accordance with the assessments calculated and the schedule provided by the IOPC Fund Assembly. Contributions to the IOPC Fund shall be levied by the Philippine Government and collected by the DOE from the receivers of contributing oil. Contributions shall be remitted by the DFA to the IOPC Fund in coordination with the DOE and the MARINA.
SECTION 2. Reporting of Contributing Oil. — Any person who, in a calendar year, has received in the territory of the Philippines contributing Oil, as defined in this Act, shall, not later than February 1 of the following year, report to the DOE the quantity of such Oil received. The DOE, through the DFA, shall communicate the data at a time and in the manner prescribed by the 1992 Fund Convention.
2.1 The abovementioned data shall be the basis of the report to be submitted to the Director of the Assembly by the DOE through the DFA containing the following:
2.1.1 List of person/s who receives contributing Oil in such quantities that he is liable to contribute to the Fund;
2.1.2 The aggregate amount of contributing Oil received by such person/s including his subsidiary/affiliate corporation/s;
2.1.3 The name and address of said person/s and its subsidiary/affiliate corporation/s;
2.1.4 The total amount of contributing Oil received by all the terminal installations and/or persons liable to contribute to the Fund; and
2.1.5 All other data deemed necessary by the DFA and required by the Fund.
SECTION 3. Inter-Agency Monitoring of the Contribution to the IOPC Fund. — The DOE in coordination with DFA shall monitor the compliance of person/s liable to contribute to the Fund and provide MARINA and PCG a summary compliance report.
SECTION 4. Violations to the Fund Convention. — The MARINA in coordination with the DOE, in the performance of their functions set forth in the preceding section, shall set administrative fines, penalties and sanctions of person/s violating the Act and this IRR (i.e., misdeclaration, non-payment of contribution, etc.) subject to their existing policy.
RULE VIII
Action for Compensation
SECTION 1. Action for Compensation. — An action for compensation on account of Pollution Damage resulting from the Incident which occurred in the territory may be brought before the RTC against the following person/s:
1.1 Owner of the polluting Ship; or
1.2 Insurer or other person providing financial security of the said Owner's liability for pollution.
For this purpose, foreign corporation, partnership, association or individual, whether or not licensed to transact business in the Philippines by any appropriate government agencies, proving such insurance or financial security for Pollution Damage shall be considered transacting or doing business in the Philippines and shall be subject to the jurisdiction of the regular judicial courts of the country. ITAaHc
In the event of a suit filed against the insurer for the recovery of any liability of the Owner for pollution damage, even if the Owner is not entitled to limit his liability, may avail himself of the defenses which the Owner himself would have been entitled to invoke, except the defenses of bankruptcy or winding up of the Owner.
The insurer may avail himself of the defense that the pollution damage resulted from the wilful misconduct of the Owner himself, but shall not avail himself of any other defense which he may have been entitled to invoke in a suit brought by the Owner against him. He shall have the right to require the Owner to be joined as party to the suit.
SECTION 2. Right of Subrogation. —
2.1 If before the fund is distributed, the Owner or any of his servants or agents or any person providing him insurance or other financial security has as a result of the incident in question, paid compensation for pollution damage, such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed.
2.2 The right of subrogation may also be exercised by a person other than those mentioned in the preceding paragraph, which may include the OPMF, in respect of any amount of compensation for pollution damage which may have been paid.
2.3 Where the Owner or any other person establishes that he may be compelled to pay at a later date, in whole or in part, such compensation for pollution damage, he shall enjoy a right of subrogation against any fund constituted for the purpose. The Regional Trial Court may order that a sufficient amount shall be provisionally set aside to enable such person to enforce his claim against the fund at such later date.
SECTION 3. Prescriptive Period for Filing of Action. — Action for compensation shall be filed within three (3) years of the date on which the damage occurred, but not later than six (6) years of the date of the incident.
SECTION 4. Filing Fee/s. — Filing of the action under this section shall only require payment of filing fees equivalent to ten percentum (10%) of the regular rates established therefore by the Supreme Court of the Philippines. However, indigent plaintiffs shall be exempt from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favourable to the indigent, unless the court otherwise provides.
SECTION 5. Adjudication or Settlement of Claims. — The RTC shall decide claims for compensation or certify the compromise agreement by the parties within a reasonable period.
Where compensation was not obtained or satisfied under the 1992 Civil Liability Convention, the claimant may seek compensation under the 1992 Fund Convention. The RTC shall furnish the IOPC Fund with its certified decision, together with pertinent documents, on a claim for Pollution Damages.
Where the fund under the 1992 Civil Liability Convention is insufficient to satisfy the claims of those who are entitled to compensation, the amount of compensation of each claimant shall be distributed pro rata.
SECTION 6. Amicable Settlement by Parties. — The liability by the Ship owner may be a subject of compromise agreement by the shipowner and the claimants, provided that the same shall not be contrary to law, public, policy, morals and good customs.
6.1 Institution of a Mechanism as basis of an amicable settlement — The mechanism to be used by the parties in entering into a compromise agreement for proper evaluation and Certification by the Court shall be the technical assessment on the aggregate of pollution damage as may be determined by the DENR.
SECTION 7. Intervention by the IOPC Fund. — The IOPC Fund may intervene as a party to any legal proceedings instituted against the Owner of a Ship of his guarantor under Article IX of the 1992 Civil Liability Convention.
RULE IX
Penalty Provisions
SECTION 1. Violation of the IRR. — The following acts shall be considered violations of the Act and this IRR and the persons responsible shall suffer the corresponding fines:
1.1 Any person who fails to institute or maintain insurance of other financial security required under Sec. 1, Rule VI of this IRR.
1.1.1 Ships of 500 gross tons (GRT) and below — not less than One hundred thousand pesos (P100,000.00) but not more than Two hundred fifty thousand pesos (P250,000.00).
1.1.2 Ships of above 500 to 1,000 GRT — not less than Two hundred fifty thousand pesos (P250,000.00) but not more than Five hundred thousand pesos (P500,000.00).
1.1.3 Ships of above 1,000 to 5,000 GRT — not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);
1.1.4 Ships of above 5,000 to 10,000 GRT — not less than One million pesos (P1,000,000.00) but not more than Five million pesos (P5,000,000.00); CHTAIc
1.1.5 Ships of above 10,000 to 20,000 GRT — not less than Five million pesos (P5,000,000.00) but not more than Ten million pesos (P10,000,000.00);
1.1.6 Ships of above 20,000 GRT — not less than Ten million pesos (P10,000,000.00) but not more than Fifteen million pesos (P15,000,000.00).
1.2 The Owner and the master of a Ship who operate a Ship without maintaining on board a certificate of insurance required under Section 2, Rule VI of this IRR:
1.2.1 First violation — Five hundred thousand pesos (P500,000.00);
1.2.2 Second violation — One million pesos (P1,000,000.00);
1.2.3 Third violation — One million five hundred thousand pesos (P1,500,000.00).
1.3 Any person required under Section 2, Rule VII of this IRR to contribute to the IOPC Fund but nevertheless fails to comply therewith after due notice by the MARINA:
1.3.1 First violation — Three million pesos (P3,000,000.00)
1.3.2 Second violation — Four million pesos (P4,000,000.00)
1.3.3 Third violation — Five million pesos (P5,000,000.00)
1.4 Failure to Submit Report of Contributing Oil — Any person required under Section 3, Rule VII of this IRR to submit report of contributing Oil and notwithstanding 10-day notice thereto, fails to comply therewith:
1.4.1 First violation — Five hundred thousand pesos (P500,000.00);
1.4.2 Second violation — One million pesos (P1,000,000.00); and
1.4.3 Third violation — One million five hundred thousand pesos (P1,500,000.00).
1.5 Any person who shall refuse, obstruct, or hamper the entry of the duly authorized representatives of the Department or any other person authorized under the IRR aboard any Ship or establishment pursuant to this IRR shall be liable to pay a fine not exceeding One hundred thousand pesos (P100,000.00); and
1.6 Any Ship apprehended for violation of this IRR may be subjected to detention.
1.7 The fines prescribed in this Section and other sections of this Rule shall be increased by at least ten percent (10%) every three years to compensate for inflation and to maintain the deterrent functions of such fines.
RULE X
Final Provisions
SECTION 1. Oil Pollution Management Fund (OPMF). — Administration of the OPMF shall be responsibility of the Maritime Industry Authority.
1.1 Establishment of the OPMF — The Maritime Industry Authority (MARINA) is hereby authorized to establish and open a trust fund account with any government depository bank for OPMF — The OPMF shall be available for disbursement/payment of expenses immediately after any occurrence of any oil pollution case or incident.
1.2 Source/Composition of OPMF — OPMF shall be composed mainly from the following sources:
1.2.1 Contributions of Owners and Operators of Tankers and barges hauling oil and/or petroleum products in Philippine waterways and coastwise shipping routes;
1.2.1.1 During its first year of existence from the date of implementation of the Act. The OPMF shall be constituted through an impost of levy of ten centavos. (0.10) per liter for every delivery or transshipment of oil received by tanker barges or tanker haulers from an oil depot, refinery, or other storage facility for carriage to its point of destination regardless of any intervening or intermediate point for consolidation, deconsolidation or change of means of transportation of such oil.
1.2.1.2 An OPMF Committee shall be constituted to determine the amount of contribution for the succeeding years.
1.2.2 Fines and Penalties under Section 1, Rule IX of this IRR and other fines and penalties that may be determined by the OPMF Committee;
1.2.3 Grants, donations and endowment from various domestic and foreign sources; and
1.2.4 Amounts appropriated under the Annual General Appropriations Act pursuant to Section 2, Rule X of this IRR.
1.3 The OPMF Committee shall be constituted as follows:
Chairman — Administrator, MARINA
Vice Chairman — Commandant, PCG
Members: representative from the following:
DOTC
PPA
DOE
DENR-EMB
Tanker Association (to be designated/appointed by the association members)
Secretariat — MARINA staff designated by the Administrator
1.4 The OPMF Committee shall perform the following Duties and Functions: EATCcI
1.4.1 Determine the contribution for the year based on the utilization of the OPMF;
1.4.2 Conduct/undertake an annual review and evaluation to determine the need to increase/decrease the amount of contribution for the following year/period;
1.4.3 Issue circulars to prescribe the rate/amount of contributions of Owners and Operators of Tankers and barges hauling oil and/or petroleum products in Philippine waterways and coastwise shipping routes for any particular period;
1.4.4 Issue, in addition to the violations provided under Section 1, Rule X of this IRR, a Circular prescribing fines and penalties for additional violations relative to the implementation of this Act;
1.4.5 Determine/approve amount for the initial and succeeding transfer of funds to the PCG, in accordance with National Oil Spill Contingency Plan;
1.4.6 Determine/approve the conduct of research activities pursuant to Para. 1.4.1.2, of this Rule; and
1.4.7 Approve the proposed annual budget for the enforcement and monitoring activities of concerned agencies/offices.
1.5 Utilization of the OPMF
1.5.1 Transfer of funds/disbursement from OPMF shall be with prior approval of the OPMF Committee which will cover expenditures relative to the following:
1.5.1.1 For the immediate containment, removal and clean-up operations of the PCG in all Oil Pollution cases the amount shall be in accordance with the Claims Manual.
1.5.1.2 Research, enforcement and monitoring activities as approved by the OPMF Committee.
1.5.2 Reimbursement of expenses incurred for immediate containment, removal and clean-up operations undertaken following an incident shall require approval from the OPMF Committee;
1.5.3 Total expenses for immediate containment, removal and clean-up operations undertaken following an incident shall not exceed 90% of the funds available in the OPMF on the date of the incident;
1.5.4 Amounts appropriated under the General Appropriations Act for the OPMF shall be used exclusively to meet expenses for the immediate containment, removal and clean-up operations undertaken following an incident;
1.5.5 The fund shall not be used for payment of personal services expenditures, except for the compensation of those involved in clean-up operations undertaken following an incident;
1.5.6 Total expenses for research, enforcement and monitoring activities as approved by the OPMF Committee shall not exceed 10% of the total funds available in the OPMF for any given calendar year.
1.6 Procedures for the Collection and Deposit/Remittance to the OPMF:
1.6.1 Owners and Operators of Tankers and barges hauling oil and/or petroleum products in Philippine waterways and coastwise shipping routes shall pay their monthly contributions to the MARINA Central Office or to any of its Maritime Regional Office (MROs) within the first 5 days of the succeeding month;
1.6.2 In the case of economic zone authorities with special charters, MARINA shall put up a collection desk in its premises, monthly contributions shall be paid to the MARINA collecting officer;
1.6.3 Contribution shall be computed based on the rate prescribed by the OPMF Committee and the number of liters of oil delivered/transported as reflected/reported in the Monthly Voyage Report (MVR). The MVR shall be supported with copies of the bill of lading issued for the month;
1.6.4 MARINA Collection/Accountable Officers shall deposit all collection received for the OPMF, intact the following day to the OPMF Fund Account;
1.6.5 MARINA Collecting Officers in the MROs and shall submit to the Central Office a Monthly Report of Collection and Deposits.
1.7 Transfer/Disbursement of Funds:
1.7.1 Immediately after receipt of report from PCG of any incident of oil spill/pollution, the MARINA shall transfer to the latter the amount covering the initial requirements for the containment and removal of the spill;
1.7.2 The amount transfer shall be considered as a Revolving Fund by the PCG;
1.7.3 The PCG shall request MARINA for the replenishment of the Revolving Fund when disbursement has reached at least 75% of the total amount; DHITCc
1.7.4 Disbursement or payment of expenses relative to the containment, removal and clean-up operations undertaken by other government agencies/offices or private companies shall be made by the PCG;
1.7.5 Any unexpended portion of the cash advance shall be refunded to the OPMF.
1.8 Disbursement Procedures (10%):
1.8.1 MARINA, PCG, PPA and other government agencies/offices concerned shall submit annual plans and budget estimates covering enforcement/monitoring and research activities, pursuant to Section 1.4.1.2 to 1.4.1.4 of this Rule.
1.8.2 Annual Plans and Budget estimates for research, enforcement and monitoring activities shall be submitted to the OPMF for deliberation and approval.
1.8.3 Any new research proposal, in addition to the annual plan may be submitted to the OPMF Committee for deliberation/approval.
1.8.4 Transfer of funds for enforcement and monitoring activities shall be on a quarterly basis and in accordance with the Annual Plans.
1.8.5 Transfer of funds for research activities shall be as approved by the OPMF Committee.
1.9 Reimbursement to the OPMF
1.9.1 MARINA shall be provided copy of any decision/order issued by the RTC on the settlement of claims for compensation for pollution damages.
1.10 Audit of the OPMF
1.10.1 The OPMF shall be subjected to the usual audit procedures by the Commission on Audit (COA).
1.11 Reporting
1.11.1 The MARINA, as the administrator of the OPMF, shall prepare the following quarterly reports and submit the same to the Secretary of the DOTC, the members of the OPMF Committee and other concerned government offices:
1.11.1.1 Collection and Deposit
1.11.1.2 Disbursement
1.11.1.3 Status of Funds
1.11.2 An audited report of disbursement shall be prepared and submitted by PCG to the MARINA within 90 days after the termination of clean-up operations.
1.11.3 MARINA shall submit financial reports as required by COA, Bureau of the Treasury and Department of Budget (DBM) and Congress.
SECTION 2. Appropriations. —
The Secretary of the DOTC shall include in the Department's program the implementation of the Act, the funding of which shall be included in the annual General Appropriations Act.
SECTION 3. Manual of Procedures in the Enforcement of Claims. —
A manual providing for the procedures concerning the enforcement of claims under the Act shall be developed and form part of this IRR.
SECTION 4. Separability Clause. —
In the event that any provision of this IRR is declared unconstitutional, the validity of the remainder shall not be affected thereby.
SECTION 5. Repealing Clause. —
All rules, regulations and administrative orders contrary to or inconsistent with this IRR are hereby repealed or modified accordingly.
SECTION 6. Effectivity Clause. —
These Implementing Rules and Regulations shall take effect fifteen (15) days after its publication in the Official Gazette or in any two (2) newspapers of general circulation and upon filing of three (3) certified copies thereof with the University of the Philippines Law Center.
(SGD.) JOSEPH EMILIO A. ABAYASecretaryDepartment of Transportation and Communications
Published in The Philippine Star on April 12, 2016.