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Following is a question by the Hon Gary Fan Kwok-wai and a written reply by the Acting Secretary for Transport and Housing, Mr Yau Shing-mu, in the Legislative Council today (October 16):
Question:
In the light of the latest requirements in the Protocol adopted by the International Maritime Organization in 1996 (the Protocol), the Government submitted to this Council a bill in 2005 which proposed certain amendments to the relevant ordinance in Hong Kong, including raising the limits of liability in respect of loss of life. The Merchant Shipping (Limitation of Shipowners Liability) (Amendment) Ordinance 2005 (the Ordinance) was enacted by this Council in March 2005, but the Ordinance has yet to come into operation. It is learnt that the SAR Government must complete the procedures for formal notification of Hong Kong's joining the Protocol through the Central People's Government (CPG) for implementation of the Ordinance. It has been reported that as the Ordinance has yet to come into operation, the amounts of compensation receivable by the families of the victims of the vessel collision accident in the water near Lamma Island happened on October 1 last year (maritime disaster off Lamma Island) may be affected. In this connection, will the Government inform this Council:
(a) why the Government has not yet completed the legal procedures concerned after the Ordinance has been enacted for eight years, and of the government department(s) responsible; the detailed timetable the Government currently has for implementing the Ordinance; whether the Government has requested CPG to provide assistance in completing the procedures for formal notification of joining the Protocol; if so, when it made the request, and set out in detail the chronology of the various tasks involved, as well as the respective departments and ranks of officers in Hong Kong and the Mainland that are responsible for the tasks (set out in the table below);
Date Task Department Department
involved and rank of and rank of
officer in officer on
Hong Kong the Mainland
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---- -------- ----------- ------------
---- -------- ----------- ------------
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(b) as the amounts of claims made against the owners of the vessels involved and the amounts of compensation receivable by the families of the victims of the maritime disaster off Lamma Island may be affected by the fact that the Ordinance has yet to come into operation, whether the Government will consider making compensations to the families of the victims in this respect; if not, of the reasons for that;
(c) whether the Government and CPG have put in place a mechanism for dealing with Hong Kong's legal matters involving foreign affairs; if so, of the details; and
(d) apart from the aforesaid Ordinance, of the number of the existing ordinances which have been enacted by the Legislative Council but have yet to take effect, and set out respectively the titles of such ordinances, the reasons for their not having come into operation, the expected commencement dates as well as the government departments responsible?
Reply:
President,
With respect to Hon Gary Fan Kwok-wai's question, my consolidated reply is as follows:
(a) The Merchant Shipping (Limitation of Shipowners Liability (Amendment) Ordinance 2005 (Amendment Ordinance) is to amend the limits of liability set out in the Merchant Shipping (Limitation of Shipowners Liability) Ordinance (Cap. 434) in respect of the loss of life and other claims of loss in the light of the latest requirements of the Convention on Limitation of Liability for Maritime Claims, 1976 as amended by the Protocol of 1996 (the 1996 Protocol).
In August 2003, the then Economic Development and Labour Bureau (EDLB) wrote to the Office of the Commissioner of the Ministry of Foreign Affairs of China in the Hong Kong Special Administrative Region (OCMFA) to seek advice from the Central People's Government (CPG) on the application of the 1996 Protocol to the Hong Kong Special Administrative Region (HKSAR) and to inform the CPG that the SAR Government was engaged in related legislative work for this purpose. OCMFA conveyed that the CPG has no objection.
The Amendment Ordinance was introduced to the Legislative Council for scrutiny in January 2005. After its passage by the Legislative Council and its gazettal in March 2005, the then EDLB informed the OCMFA in April of the same year that the legislative exercise was completed, and that the CPG could arrange for the deposit of the accession instrument with the International Maritime Organization (IMO) for the application of the 1996 Protocol to the HKSAR in accordance with Article 10 of the 1996 Protocol. After the re-organisation of the SAR Government Secretariat in 2007, the Secretary for Transport and Housing has taken over responsibility for the marine-related policy portfolio from the former Secretary for Economic Development and Labour. Over the years, the Transport and Housing Bureau has approached the OCMFA a number of times to express our wish that the CPG confirm with the IMO as soon as possible that the 1996 Protocol would be applicable to the HKSAR. Besides, the marine authorities of both sides have followed up on the progress of the matter from time to time.
The 1996 Protocol is an international agreement entered into by sovereign states. The People's Republic of China is not a party to the 1996 Protocol. Under Article 153 of the Basic Law, the application to the HKSAR of international agreements shall be decided by the CPG, in accordance with the circumstances and needs of the HKSAR, and after seeking the views of the Government of the HKSAR. As the Amendment Ordinance seeks to implement the requirements of the 1996 Protocol through its amendment provisions on the shipowners' limits of liability, those amendment provisions would only commence operation after the 1996 Protocol has become applicable to the HKSAR and the Secretary for Transport and Housing has specified the commencement date in the Gazette. The SAR Government will continue to follow up with the OCMFA on this matter.
(b) The relevant amendment provisions regarding the limitation on liability of shipowners as provided for in the Amendment Ordinance apply to actions against shipowners. These amendment provisions are not applicable to persons or institutions involved other than shipowners. Persons injured or families of the deceased victims of the vessel collision incident off the Lamma Island last year may consider seeking legal advice regarding actions against persons or institutions other than shipowners based on other legal grounds. If persons or institutions other than shipowners are eventually found by the court to be liable for the incident, the fact that the Amendment Ordinance is not yet in force should not affect the amount of the final damages recoverable by persons injured or families of victims.
(c) Under Article 13 of the Basic Law, the CPG shall be responsible for the foreign affairs relating to the HKSAR. The Ministry of Foreign Affairs shall establish an office in Hong Kong to deal with foreign affairs. Generally speaking, the CPG will liaise with the SAR Government through the OCMFA foreign affairs relating to Hong Kong where necessary, and the SAR Government will also liaise with the CPG through the OCMFA on such affairs where necessary.
(d) Please refer to the Annex for information relating to Ordinances or provisions of Ordinances that were enacted in 2013 or before but are not yet in operation.
Ends/Wednesday, October 16, 2013
Issued at HKT 17:42
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