An Act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other Acts

2009, c. 21

Annual Statutes

C-7 2 40 57-58 Elizabeth II 2009

Marine Liability and Federal Courts 2009 6 23 21 2009 90467

SUMMARY

This enactment amends Parts 3 and 4 of the Marine Liability Act to clarify certain rules of the limitation of liability of owners of ships for maritime claims and liability for the carriage of passengers, in particular the treatment of participants in adventure tourism activities.

It also amends

Part 6 of that Act to implement the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 as well as the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001. The enactment continues, in

Part 7, the Ship-source Oil Pollution Fund and modernizes its governance. With respect to

Part 8, it includes general provisions relating to the administration and enforcement of offences under that Act and creates a maritime lien for Canadian ship suppliers against foreign vessels and establishes a general limitation period for proceedings not covered by other limitation periods.

Finally, this enactment amends the Federal Courts Act and makes consequential amendments to other Acts.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

2001, c. 6

MARINE LIABILITY ACT

Section 24 of the Marine Liability Act is amended by adding the following in alphabetical order:

passenger

passager

passenger means

(

a) a person carried on board a ship in circumstances described in paragraph 2(

a) or (

b) of

Article 7 of the Convention;

(

b) a participant in an adventure tourism activity referred to in subsection 37.1(1);

(

c) a person carried on board a vessel propelled manually by paddles or oars and operated for a commercial or public purpose; and

(

d) a sail trainee.

unit of account

unités de compte

unit of account means a special drawing right issued by the International Monetary Fund.

Section 26 of the Act is replaced by the following:

Force of law

(1) Subject to the other provisions of this Part, Articles 1 to 15 and 18 of the Convention and Articles 8 and 9 of the Protocol have the force of law in Canada.

Amendments to

Part 3 of

Schedule 1

(2) The Governor in Council may, by regulation, amend

Part 3 of

Schedule 1 to add or delete a reservation made by Canada under

Article 18 of the Convention.

Exceptions

(3) This Part does not apply to a claim that is the subject of a reservation made by Canada.

2001, c. 26, s. 324(2)

Sections 28 and 29 of the Act are replaced by the following:

Passenger claims

(1) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to passengers of a ship of less than 300 gross tonnage is the greater of

( a )

2 000 000 units of account, and

( b )

175 000 units of account multiplied by

(

i) the number of passengers that the ship is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001 , or

(ii)

the number of passengers on board the ship, if no Canadian maritime document is required under that Act.

Claims — no contract of carriage

(2) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to persons carried on board a ship of less than 300 gross tonnage otherwise than under a contract of passenger carriage is the greater of

( a )

2 000 000 units of account, and

( b )

175 000 units of account multiplied by

(

i) the number of passengers that the ship is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001 , or

(ii)

the number of persons on board the ship, if no Canadian maritime document is required under that Act.

Exception

(3) Subsection (2) does not apply in respect of

(

a) the master of a ship, a member of a ship’s crew — or any other person employed or engaged in any capacity on the business of a ship — when they are carried on board the ship;

(

b) a person carried on board a ship other than a ship operated for a commercial or public purpose;

(

c) a person carried on board a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented;

( c.1 )

a stowaway, a trespasser or any other person who boards a ship without the consent or knowledge of the master or the owner; or

(

d) a person who is a member of a class of persons prescribed under paragraph 34.1( a ).

Other claims

The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in

section 28, is

( a )

$1,000,000 in respect of claims for loss of life or personal injury; and

( b )

$500,000 in respect of any other claims.

Calculation of tonnage

29.1

For the purposes of sections 28 and 29, a ship’s gross tonnage shall be calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969, concluded at London on June 23, 1969, including any amendments, whenever they are made, to the Annexes or Appendix to that Convention.

Subsection 30(2) of the Act is replaced by the following:

Calculation of tonnage

(2) For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in the manner described in

section 29.1.

Section 31 of the Act is replaced by the following:

Amendment of limits

(1) The Governor in Council may, by regulation, amend

Schedule 1 to implement an amendment that is made in accordance with

Article 8 of the Protocol to any of the limits of liability that are specified in paragraph 1 of

Article 6 or paragraph 1 of

Article 7 of the Convention.

Amendment of sections 28, 29 and 30

(2) The Governor in Council may, by regulation, amend the limits of liability set out in sections 28, 29 and 30.

The Act is amended by adding the following after

section 34:

Regulations

Governor in Council

34.1

The Governor in Council may make regulations

(

a) prescribing classes of persons for the purpose of paragraph 28(3)( d ); and

(

b) generally for carrying out the purposes and provisions of this Part.

(1) Paragraph 36(1)(

a) of the Act is replaced by the following:

(

a) the definition ship in

Article 1 of the Convention shall be read as including any vessel or craft designed, used or capable of being used solely or partly for navigation, whether seagoing or not, but not including an air cushion vehicle or a vessel propelled manually by paddles or oars; and

(2) Section 36 of the Act is amended by adding the following after subsection (2):

Inconsistency

(3) In the event of any inconsistency between this

section and sections 35 and 37 to 40 of this Act and Articles 1 to 22 of the Convention, those sections prevail to the extent of the inconsistency.

Paragraph 37(2)(

b) of the Act is amended by striking out “and” at the end of subparagraph (

i) and by adding the following after subparagraph (ii):

(iii)

a person carried on board a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented, and

(iv)

a stowaway, a trespasser or any other person who boards a ship without the consent or knowledge of the master or the owner.

The Act is amended by adding the following after

section 37:

Exception — adventure tourism activities

37.1

(1) This Part does not apply to an adventure tourism activity that meets the following conditions:

(

a) it exposes participants to an aquatic environment;

(

b) it normally requires safety equipment and procedures beyond those normally used in the carriage of passengers;

(

c) participants are exposed to greater risks than passengers are normally exposed to in the carriage of passengers;

(

d) its risks have been presented to the participants and they have accepted in writing to be exposed to them; and

(

e) any condition prescribed under paragraph 39( c ).

Exception — persons

(2) This Part does not apply to the carriage of a sail trainee or a person who is a member of a class of persons prescribed under paragraph 39( d ).

Sections 39 and 40 of the Act are replaced by the following:

Governor in Council

The Governor in Council may make regulations

(

a) respecting insurance or other financial security to be maintained in respect of classes of carriage, ships or persons to cover liability under this Part up to the maximum amount set out in it;

(

b) respecting the form and manner in which proof of insurance or other financial security is provided;

(

c) prescribing any condition for the purpose of subsection 37.1(1);

(

d) prescribing classes of persons for the purpose of subsection 37.1(2); and

(

e) generally for carrying out the purposes and provisions of this Part.

Amendment of limits

The Governor in Council may, by regulation, amend

Schedule 2 to implement an amendment that is made in accordance with

Article VIII of the Protocol to any of the limits of liability that are specified in paragraph 1 of

Article 7 or in

Article 8 of the Convention, including the deductibles referred to in that

Article 8.

2001, c. 26, ss. 324(4) to (6), c. 27, s. 273.1(2); SOR/2003-353; 2003, c. 22, par. 225( z.6 )(E)

The heading “

Interpretation ” before

section 47 and sections 47 to 131 of the Act are replaced by the following:

Division 1

International Conventions

Interpretation

Definitions

(1) The following

definitions apply in this Division.

Bunkers Convention

Convention sur les hydrocarbures de soute

Bunkers Convention means the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, concluded at London on March 23, 2001.

Civil Liability Convention

Convention sur la responsabilité civile

Civil Liability Convention means the International Convention on Civil Liability for Oil Pollution Damage, 1992, concluded at London on November 27, 1992,

Article V of which was amended by the Resolution adopted by the Legal Committee of the International Maritime Organization on October 18, 2000.

discharge

rejet

discharge , in relation to oil and bunker oil, means a discharge of oil or bunker oil that directly or indirectly results in the oil or bunker oil entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.

Fund Convention

Convention sur le Fonds international

Fund Convention means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, concluded at London on November 27, 1992,

Article 4 of which was amended by the Resolution adopted by the Legal Committee of the International Maritime Organization on October 18, 2000.

in bulk

en vrac

in bulk means in a hold or tank that is part of a ship’s structure, without any intermediate form of containment.

International Fund

Fonds international

International Fund means the International Oil Pollution Compensation Fund, 1992 established by

Article 2 of the Fund Convention.

owner

Version anglaise seulement

owner

(

a) in relation to the Civil Liability Convention, has the same meaning as in

Article I of that Convention;

(

b) in relation to the Fund Convention, has the same meaning as in

Article I of the Civil Liability Convention and as shipowner within the meaning of the Fund Convention;

(

c) in relation to the Supplementary Fund Protocol, has the same meaning as in

Article I of the Civil Liability Convention; and

(

d) in relation to the Bunkers Convention, has the same meaning as the definition Shipowner in

Article 1 of that Convention.

Supplementary Fund

Fonds complémentaire

Supplementary Fund means the International Oil Pollution Compensation Supplementary Fund, 2003 established by

Article 2 of the Supplementary Fund Protocol.

Supplementary Fund Protocol

Protocole portant création d’un Fonds complémentaire

Supplementary Fund Protocol means the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, concluded at London on May 16, 2003.

Words and expressions defined

(2) For the purposes of this Division and unless otherwise provided, words and expressions used in this Division have the same meaning as in the following applicable conventions:

(

a) Article I of the Civil Liability Convention;

(

b) Article 1 of the Fund Convention;

(

c) Article 1 of the Supplementary Fund Protocol; and

(

d) Article 1 of the Bunkers Convention.

Inconsistency

(3) In the event of an inconsistency between this

section and sections 48 to 74 and 79 to 90 and the Civil Liability Convention, the Fund Convention, the Supplementary Fund Protocol or the Bunkers Convention, those sections prevail to the extent of the inconsistency.

Civil Liability Convention

Force of law

Articles I to XI, XII bis and 15 of the Civil Liability Convention — that are set out in

Schedule 5 — have the force of law in Canada.

Contracting State

(1) For the purposes of the application of the Civil Liability Convention, Canada is a Contracting State.

Appropriate authority

(2) For the purposes of the application of

Article VII of that Convention, the Minister is the appropriate authority for Canada.

Schedule 5 — limits amendment

The Governor in Council may, by regulation, amend

Schedule 5 to implement an amendment — to the limits of liability that are specified in paragraph 1 of

Article V of the Civil Liability Convention — that is made in accordance with

Article 15 of that Convention.

Liability for pollution and related costs

The liability of the owner of a ship in relation to preventive measures, for the purposes of the Civil Liability Convention, also includes

(

a) the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of

section 165 of the Canada Shipping Act, 2001 , any other person in Canada or any person in a state, other than Canada, that is a party to that Convention in respect of measures taken to prevent, repair, remedy or minimize pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and

(

b) in relation to oil, the costs and expenses incurred by

(

i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(

a) of the Canada Shipping Act, 2001 , in respect of any monitoring under paragraph 180(1)(

b) of that Act or in relation to any direction given under paragraph 180(1)(

c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or

(ii)

any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(

c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

Admiralty Court’s jurisdiction — limitation fund

(1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under the Civil Liability Convention.

Right to assert limitation defence

(2) When a claim is made or apprehended against a person in respect of liability that is limited under the Civil Liability Convention, that person may assert their right to a limitation of liability by constituting a fund as required under that Convention and filing a defence, or by way of action or counterclaim for declaratory relief, in the Admiralty Court.

Stay of proceedings

(3) When a fund is constituted in the Admiralty Court, any other court, where an action asserting limitation of liability under the Civil Liability Convention has been commenced, shall stay the proceedings and refer all claims under that Convention to the Admiralty Court.

Admiralty Court’s powers

(1) When a claim is made or apprehended against a person in respect of liability that is limited under the Civil Liability Convention, the Admiralty Court, on application by that person or any other interested person, may take any steps that it considers appropriate, including

(

a) determining the amount of the liability and providing for the constitution and distribution of a fund under that Convention; and

(

b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within the time limits set out in

Article VIII of that Convention, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs.

Admiralty Court may postpone distribution

(2) In providing for the distribution of a fund under paragraph (1)(

a) in relation to any liability, the Admiralty Court may, having regard to any claim that may subsequently be established before a court, tribunal or other authority outside Canada in respect of that liability, postpone the distribution of any part of the fund that it considers appropriate.

Procedural matters

(3) The Admiralty Court may

(

a) make any rule of procedure that it considers appropriate with respect to proceedings before it under this section; and

(

b) determine what form of guarantee it considers to be adequate for the purposes of paragraph 3 of

Article V of the Civil Liability Convention.

Public notice

(1) The person constituting the fund shall, as soon as feasible, give notice of the fund’s constitution in the Canada Gazette and in a newspaper in general circulation in the region where the incident occurs.

Proof of notice

(2) Within 30 days after the fund’s constitution, the person constituting it shall file the public notices in the Admiralty Court.

Court order in case of non-compliance

(3) The Admiralty Court may issue any order that it deems appropriate to remedy the failure of the person to give any of the required public notices or the inadequacy of a notice.

Absence of certificate

(1) Unless a ship carries a certificate described in

Article VII of the Civil Liability Convention issued in accordance with subsection 56 (1), showing that a contract of insurance or other security satisfying the requirements of that

Article is in force in respect of a ship carrying, in bulk as cargo, more than 2 000 metric tons of oil, the ship must not

(

a) enter or leave a port in Canadian waters or in Canada’s exclusive economic zone or arrive at or leave an offshore terminal in Canadian waters or in Canada’s exclusive economic zone; or

(

b) if the ship is registered in Canada, enter or leave a port in any other state, whether or not the state is a party to that Convention, or arrive at or leave an offshore terminal

(

i) in the territorial sea or internal waters of any such state, or

(ii)

in the exclusive economic zone of any such state or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of the state, and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.

Certificate to be produced on request

(2) The master, a crew member or any person on board who is, or appears to be, in charge of the ship shall produce the certificate and give details of it at the request of any authorized officer of the Government of Canada.

By whom certificate to be issued

(1) The certificate shall be issued

(

a) by the Minister, if the ship is registered in Canada;

(

b) by or under the authority of the government of the state of registration, if the ship is registered in a state, other than Canada, that is a party to the Civil Liability Convention; or

(

c) by the Minister or by or under the authority of the government of a state, other than Canada, that is a party to the Civil Liability Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.

Issuance of certificate by Minister

(2) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Civil Liability Convention, the Minister shall issue the certificate to the owner of the ship, if he or she is satisfied that a contract of insurance or other security satisfying the requirements of

Article VII of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

When Minister may refuse certificate

(3) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 55 (1), or that the contract of insurance or other security will not cover the owner’s liability under the Civil Liability Convention, the Minister may refuse to issue the certificate.

When Minister may revoke certificate

(4) If the Minister believes that the guarantor is no longer able to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 55 (1), or that the contract of insurance or other security no longer covers the owner’s liability under the Civil Liability Convention, the Minister may revoke the certificate issued by him or her.

Fund Convention

Force of law

Articles 1 to 4, 6 to 10, 12 to 15, 36 ter , 29, 33 and 37 of the Fund Convention — that are set out in

Schedule 6 — have the force of law in Canada.

Contracting State

For the purposes of the application of the Fund Convention, Canada is a Contracting State.

Schedule 6 — limits amendment

The Governor in Council may, by regulation, amend

Schedule 6 to implement an amendment — to the limits of liability that are specified in paragraph 4 of

Article 4 of the Fund Convention — that is made in accordance with

Article 33 of that Convention.

Meaning of associated persons

For the purposes of the application of the Fund Convention, if two bodies are affiliated with each other within the meaning of

section 2 of the

Canada Business Corporations Act , they are deemed to be associated persons within the meaning of Associated person in paragraph 2(

b) of

Article 10 of that Convention.

Legal capacity of International Fund

For the purposes of the rights and obligations referred to in

section 62 , the International Fund has the capacity, rights and obligations of a natural person, and the Director of the International Fund is its legal representative.

International Fund to be party to legal proceedings

(1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in

section 51 or

Article III of the Civil Liability Convention,

(

a) the document commencing the proceedings shall be served on the International Fund and that Fund is then a party to the proceedings; and

(

b) the International Fund may appear and take any action that its Director considers appropriate for the proper administration of that Fund.

Method of service on International Fund

(2) In addition to any method of service permitted by the rules of the court in which a proceeding is commenced, service of documents on the International Fund under paragraph (1)(

a) may be effected by registered mail.

Supplementary Fund Protocol

Force of law

Articles 1 to 15, 18, 20, 24, 25 and 29 of the Supplementary Fund Protocol — that are set out in

Schedule 7 — have the force of law in Canada.

Contracting State

For the purposes of the application of the Supplementary Fund Protocol, Canada is a Contracting State.

Schedule 7 — limits amendment

The Governor in Council may, by regulation, amend

Schedule 7 to implement an amendment — to the limits of liability that are in

Article 4 of the Supplementary Fund Protocol — that is made in accordance with

Article 24 of that Protocol.

Meaning of associated persons

For the purposes of the application of the Supplementary Fund Protocol, if two bodies are affiliated with each other within the meaning of

section 2 of the

Canada Business Corporations Act , they are deemed to be associated persons within the meaning of Associated person in paragraph 2(

b) of

Article 10 of the Fund Convention.

Legal capacity of Supplementary Fund

For the purposes of the rights and obligations referred to in

section 68 , the Supplementary Fund has the capacity, rights and obligations of a natural person, and the Director of the Supplementary Fund is its legal representative.

Supplementary Fund to be party to legal proceedings

(1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in

section 51 or

Article III of the Civil Liability Convention,

(

a) the document commencing the proceedings shall be served on the Supplementary Fund and that Fund is then a party to the proceedings; and

(

b) the Supplementary Fund may appear and take any action that its Director considers appropriate for the proper administration of that Fund.

Method of service on Supplementary Fund

(2) In addition to any method of service permitted by the rules of the court in which proceedings are commenced, service of documents on the Supplementary Fund under paragraph (1)(

a) may be effected by registered mail.

Bunkers Convention

Force of law

Articles 1 to 10 of the Bunkers Convention — that are set out in

Schedule 8 — have the force of law in Canada.

State Party

(1) For the purposes of the application of the Bunkers Convention, Canada is a State Party.

Appropriate authority

(2) For the purposes of the application of

Article 7 of the Bunkers Convention, the Minister is the appropriate authority for Canada.

Liability for pollution and related costs

The liability of the owner of a ship in relation to preventive measures, for the purposes of the Bunkers Convention, also includes

(

a) the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of

section 165 of the Canada Shipping Act, 2001, any other person in Canada or any person in a state, other than Canada, that is a party to that Convention in respect of measures taken to prevent, repair, remedy or minimize pollution damage from the ship, including measures taken in anticipation of a discharge of bunker oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and

(

b) in relation to bunker oil, the costs and expenses incurred by

(

i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(

a) of the Canada Shipping Act, 2001 , in respect of any monitoring under paragraph 180(1)(

b) of that Act or in relation to any direction given under paragraph 180(1)(

c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or

(ii)

any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(

c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

Application of

Part 3 Part 3 applies to claims arising under the Bunkers Convention.

Absence of certificate

(1) Unless a ship carries a certificate described in

Article 7 of the Bunkers Convention issued in accordance with subsection 74 (1), showing that a contract of insurance or other security satisfying the requirements of that

Article is in force in respect of a ship having 1 000 gross tonnage or more, the ship must not

(

a) enter or leave a port in Canadian waters or in Canada’s exclusive economic zone or arrive at or leave an offshore terminal in Canadian waters or in Canada’s exclusive economic zone; or

(

b) if the ship is registered in Canada, enter or leave a port in any other state, whether or not the state is a party to that Convention, or arrive at or leave an offshore terminal

(

i) in the territorial sea or internal waters of any such state, or

(ii)

Certificate to be produced on request

By whom certificate to be issued

(1) The certificate shall be issued

(

a) by the Minister, if the ship is registered in Canada;

(

b) by or under the authority of the government of the state of registration, if the ship is registered in a state, other than Canada, that is a party to the Bunkers Convention; or

(

c) by the Minister or by or under the authority of the government of a state, other than Canada, that is a party to the Bunkers Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.

Designation by Minister

(2) The Minister may designate a person to issue, refuse or revoke a certificate on the Minister’s behalf.

Issuance of certificate by Minister

(3) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Bunkers Convention, the Minister shall issue the certificate to the owner of the ship, if he or she is satisfied that a contract of insurance or other security satisfying the requirements of

Article 7 of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

When Minister may refuse certificate

(4) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 73 (1), or that the contract of insurance or other security will not cover the owner’s liability under the Bunkers Convention, the Minister may refuse to issue the certificate.

When Minister may revoke certificate

(5) If the Minister believes that the guarantor is no longer able to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 73 (1), or that the contract of insurance or other security no longer covers the owner’s liability under the Bunkers Convention, the Minister may revoke the certificate issued by him or her.

Division 2

Liability Not Covered by Division 1

Interpretation

Definitions

The following

definitions apply in this Division.

discharge

rejet

discharge , in relation to a pollutant, means a discharge of a pollutant that directly or indirectly results in the pollutant entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.

oil

hydrocarbures

oil means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.

oil pollution damage

dommages dus à la pollution par les hydrocarbures

oil pollution damage , in relation to any ship, means loss or damage outside the ship caused by contamination resulting from the discharge of oil from the ship.

owner

propriétaire

owner means the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use.

pollutant

polluant

pollutant means oil and any substance or class of substances identified by the regulations as a pollutant for the purposes of this Part and includes

(

a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the waters’ quality to an extent that their use would be detrimental to humans or animals or plants that are useful to humans; and

(

b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the waters’ quality to an extent that their use would be detrimental to humans or animals or plants that are useful to humans.

pollution damage

dommages dus à la pollution

pollution damage , in relation to any ship, means loss or damage outside the ship caused by contamination resulting from the discharge of a pollutant from the ship.

ship

navire

ship means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to its method of propulsion or lack of propulsion, and includes

(

a) a ship in the process of construction from the time that it is capable of floating; and

(

b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up.

Application

Geographical application

This Division applies in respect of actual or anticipated pollution damage, except for pollution damage covered by Division 1, irrespective of the location of the actual or anticipated discharge of the pollutant and irrespective of the location where any preventive measures are taken,

(

a) on Canada’s territory or in Canadian waters; or

(

b) in Canada’s exclusive economic zone.

Liability for pollution and related costs

(1) The owner of a ship is liable

(

a) for oil pollution damage from the ship;

(

b) for the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of

section 165 of the Canada Shipping Act, 2001 or any other person in Canada in respect of measures taken to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and

(

c) for the costs and expenses incurred by

(

i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(

a) of the Canada Shipping Act, 2001 , in respect of any monitoring under paragraph 180(1)(

b) of that Act or in relation to any direction given under paragraph 180(1)(

c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or

(ii)

any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(

c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

Liability for environmental damage

(2) If oil pollution damage from a ship results in impairment to the environment, the owner of the ship is liable for the costs of reasonable measures of reinstatement undertaken or to be undertaken.

Strict liability subject to certain defences

(3) The owner’s liability under subsections (1) and (2) does not depend on proof of fault or negligence, but the owner is not liable under those subsections if they establish that the occurrence

(

a) resulted from

an act of war, hostilities, civil war or insurrection or from a natural phenomenon of an exceptional, inevitable and irresistible character;

(

b) was wholly caused by

an act or omission of a third party with intent to cause damage; or

(

c) was wholly caused by the negligence or other wrongful act of any government or other authority that is responsible for the maintenance of lights or other navigational aids, in the exercise of that function.

Owner’s rights against third parties

(4) Nothing in this Division shall be construed as limiting or restricting any right of recourse that the owner of a ship who is liable under subsection (1) may have against another person.

Owner’s own claim for costs and expenses

(5) The costs and expenses incurred by the owner of a ship in respect of measures voluntarily taken by them to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, rank equally with other claims against any security given by that owner in respect of their liability under this section.

Limitation period

(6) No action lies in respect of a matter referred to in subsection (1) unless it is commenced

(

a) if pollution damage occurs, within the earlier of

(

i) three years after the day on which the pollution damage occurs, and

(ii)

six years after the occurrence that causes the pollution damage or, if the pollution damage is caused by more than one occurrence having the same origin, six years after the first of the occurrences; or

(

b) if no pollution damage occurs, within six years after the occurrence.

Application of

Part 3 Part 3 applies to any claim referred to in

section 77. Division 3

General Provisions

Admiralty Court

Jurisdiction

(1) The Admiralty Court has jurisdiction with respect to claims for compensation brought in Canada under any convention under Division 1 and claims for compensation under Division 2.

Jurisdiction may be exercised in rem

(2) The jurisdiction conferred on the Admiralty Court may be exercised in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court.

Exempt ships and cargoes

(3) No action in rem may be commenced in Canada against

(

a) a warship, coast guard ship or police vessel;

(

b) a ship owned or operated by Canada or a province, or any cargo carried on such a ship, if the ship is engaged on government service; or

(

c) a ship owned or operated by a state, other than Canada, or any cargo carried on such a ship, with respect to a claim if, at the time the claim arises or the action is commenced, the ship is being used exclusively for non-commercial governmental purposes.

Registration of Foreign Judgments

Definitions

The following

definitions apply in this

section and in sections 81 to 89 .

foreign judgment

jugement étranger

foreign judgment means a judgment — of a court of a state, other than Canada, that is a party to one of the following conventions or the protocol — rendered under the

(

a) Civil Liability Convention within the meaning of subsection 47 (1);

(

b) Fund Convention within the meaning of subsection 47 (1);

(

c) Supplementary Fund Protocol within the meaning of subsection 47 (1);

(

d) Bunkers Convention within the meaning of subsection 47 (1).

judgment creditor

bénéficiaire

judgment creditor means a person in whose favour a foreign judgment is rendered, and includes the person’s assigns, successors, heirs, executors, liquidators of the succession, administrators and legal representatives.

judgment debtor

débiteur

judgment debtor means a person against whom a foreign judgment is rendered, and includes a person against whom the foreign judgment is enforceable under the law of the state in which it is rendered.

Application

Sections 82 to 89 apply to a foreign judgment resulting from an occurrence that takes place after the convention or protocol under which the judgment is rendered comes into force in Canada.

Registration of foreign judgment

(1) If a foreign judgment is rendered, the judgment creditor may, at any time during which it is enforceable under the law of the state in which it is rendered, apply to the Admiralty Court in accordance with its rules to have the foreign judgment registered in that Court.

Court may register foreign judgment

(2) The Admiralty Court may, subject to subsections (3) and (4) and

section 85 , order the registration of the foreign judgment if it is satisfied

(

a) that a case for registration has been made; and

(

b) that the foreign judgment is not under appeal and is no longer subject to appeal under the law of the state in which it was rendered.

If judgment debtor appears

(3) If, in accordance with the Admiralty Court’s rules, the judgment debtor appears at the hearing of the application for registration, that Court may not order the registration of the foreign judgment if it is satisfied that

(

a) the foreign judgment has been fully satisfied;

(

b) the foreign court acted without jurisdiction;

(

c) the foreign judgment was obtained by fraud; or

(

d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case.

If judgment partly satisfied

(4) If the Admiralty Court is satisfied that the foreign judgment has been partly satisfied, it shall order the foreign judgment to be registered only in respect of the balance remaining payable.

Pre-registration interest

For the purpose of

section 82 , a foreign judgment includes any interest, up to the date of registration, that has accrued on it under the law of the state in which it was rendered.

Costs

Reasonable costs incurred by the judgment creditor related to the registration of the foreign judgment, including the cost of obtaining an exemplification or certified copy of it from the foreign court, are recoverable in the same manner as if they were amounts payable under the foreign judgment, and the costs are to be taxed by an Admiralty Court’s assessment officer and the assessment endorsed on the order for registration.

Conversion to Canadian currency

(1) A foreign judgment expressed in a currency other than Canadian currency may not be registered under

section 82 until the Admiralty Court determines the equivalent amount in Canadian currency on the basis of the rate of exchange prevailing on the day on which the foreign judgment is rendered, as that rate is ascertained from any bank in Canada, and, for the purpose of making that determination, that Court may require the judgment creditor to provide any evidence of the applicable rate of exchange that that Court considers necessary.

Registered judgment to be in Canadian currency

(2) When the equivalent amount in Canadian currency is determined, the Admiralty Court shall certify on the order for registration the amount so determined, and the foreign judgment, when registered, is deemed to be a judgment for payment of the amount so certified.

Effect of registration

Subject to

section 87 , a foreign judgment registered under

section 82 has, as of the date of registration, the same force and effect as a judgment of the Admiralty Court’s rendered on that date.

Service of notice of registration

If a foreign judgment is registered under

section 82 after an ex parte hearing, execution of the registered judgment may not issue until the expiry of 30 days after the day on which the judgment debtor is served with a notice of registration of the foreign judgment in the manner set out in the Admiralty Court’s rules for the service of originating documents.

Application to set aside registration

(1) At any time after a foreign judgment is registered under

section 82 , the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the registration of the judgment set aside on any of the grounds set out in subsection (2).

Grounds for setting aside registration

(2) The Admiralty Court shall set aside the registration of the foreign judgment if it is satisfied that

(

a) the foreign judgment has been fully or partly satisfied;

(

b) the foreign court acted without jurisdiction;

(

c) the foreign judgment was obtained by fraud;

(

d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case;

(

e) the registration of the foreign judgment was obtained by fraud;

(

f) an error was made in the conversion of the foreign judgment to Canadian currency under

section 85 ;

(

g) the registered judgment included interest on the foreign judgment to which the judgment creditor was not entitled; or

(

h) for any other reason, it erred in regis-tering the foreign judgment.

Reduction of registered amount

(3) If the Admiralty Court sets aside the registration of a foreign judgment on the ground that it has been partly satisfied, or on the ground referred to in paragraph (2)(

f) or ( g ), it shall order the foreign judgment to be registered in the reduced amount.

Application for stay of execution

(1) At any time after a foreign judgment is registered under

section 82 , the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the execution of the registered judgment stayed on the grounds that an application to set aside the registration has been made under subsection 88 (1), and, if that Court is satisfied that the application has been made, it may stay the execution of the judgment either absolutely or for the period and on the terms and conditions that it considers appropriate and may, on further evidence, vary or terminate a stay of execution.

Grounds exclusive

(2) Execution of a registered judgment may only be stayed on the grounds that an application to set aside the registration has been made under subsection 88 (1).

Regulations

Governor in Council

The Governor in Council may make regulations

(

a) imposing a fee for the issuance of a certificate under

section 56 or 74 ;

(

b) respecting conditions under which certif-icates may be issued, refused or revoked for the purposes of subsections 56(2) to (4);

(

c) respecting the form and content of the notice to be given under subsection 54 (1);

(

d) extending the application of the Bunkers Convention, within the meaning of subsection 47 (1), to ships or classes of ships excluded from the application of that Convention and specifying the terms and conditions that are applicable to those ships or classes of ships under

Article 4 of that Convention;

(

e) providing that

Article 7 of the Bunkers Convention, within the meaning of subsection 47 (1), does not apply to ships or classes of ships operating exclusively within the area referred to in

Article 2( a )(

i) of that Convention;

(

f) governing the performance of the functions of a person designated under subsection 74 (2);

(

g) respecting conditions under which certif-icates may be issued, refused or revoked for the purposes of subsections 74(3) to (5); and

(

h) generally for carrying out the purposes and provisions of this Part.

PART 7 SHIP-SOURCE OIL POLLUTION FUND

Interpretation

Definitions

(1) The following

definitions apply in this Part.

discharge

rejet

discharge , in relation to oil, means a discharge of oil that directly or indirectly results in the oil entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.

in bulk

en vrac

in bulk means in a hold or tank that is part of a ship’s structure, without any intermediate form of containment.

oil

hydrocarbures

oil means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.

oil pollution damage

dommages dus à la pollution par les hydrocarbures

oil pollution damage , in relation to a ship, means loss or damage outside the ship caused by contamination resulting from the discharge of oil from the ship.

owner

propriétaire

owner

(

a) in relation to a ship subject to the Civil Liability Convention, has the same meaning as in

Article I of that Convention;

(

b) in relation to a ship subject to the Bunkers Convention, has the same meaning as the definition Shipowner in

Article 1 of that Convention; and

(

c) in relation to any other ship, means the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use.

ship

navire

ship means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to its method of propulsion or lack of propulsion, and includes

(

a) a ship in the process of construction from the time that it is capable of floating; and

(

b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up.

Ship-source Oil Pollution Fund

Caisse d’indemnisation

Ship-source Oil Pollution Fund means the Ship-source Oil Pollution Fund continued by

section 92 .

Other

definitions

(2) In this Part, Bunkers Convention , Civil Liability Convention , Fund Convention , International Fund , Supplementary Fund and Supplementary Fund Protocol have the same meaning as in subsection 47 (1).

Ship-source Oil Pollution Fund

Ship-source Oil Pollution Fund continued

(1) The account known as the Ship-source Oil Pollution Fund in the accounts of Canada is continued.

Credits

(2) The following shall be credited to the Ship-source Oil Pollution Fund:

(

a) all payments received under sections 112 and 115 ;

(

b) interest computed in accordance with

section 93 ; and

(

c) any amounts recovered by the Administrator under paragraph 106 (3)( c ).

Charges

(3) The following shall be charged to the Ship-source Oil Pollution Fund:

(

a) all amounts that are directed by the Administrator to be paid under paragraph 106 (3)(

a) or 108 (1)( a ), subsection 108 (6) or

section 117 or under a settlement;

(

b) all amounts for which the Administrator is liable under subsection 117 (3);

(

c) all interest to be paid under

section 116 ;

(

d) all costs and expenses that are directed to be paid under

section 98 ;

(

e) the remuneration and expenses of assessors that are directed to be paid under subsection 108 (2); and

(

f) the amount of any judgment and any costs awarded against that Fund in litigation.

Interest to be credited to Fund

The Minister of Finance shall, at the times that the Governor in Council directs, credit to the Ship-source Oil Pollution Fund interest at a rate fixed by the Governor in Council on the balance from time to time of that Fund.

Administrator and Deputy Administrator

Appointment of Administrator

(1) The Governor in Council may appoint an Administrator of the Ship-source Oil Pollution Fund to hold office during good behaviour for a term, not exceeding five years, that is fixed by the Governor in Council, subject to removal by the Governor in Council for cause.

Reappointment of Administrator

(2) The Administrator is eligible for reappointment on the expiry of his or her term of office.

Continuation in office

(3) If an Administrator is not appointed to take office on the expiry of the incumbent Administrator’s term, the incumbent continues to hold office until the earlier of the date fixed by the Governor in Council and the day on which a successor is appointed.

Deputy Administrator

(1) The Governor in Council may appoint a Deputy Administrator of the Ship-source Oil Pollution Fund to hold office during good behaviour for a term, not exceeding five years, that is fixed by the Governor in Council, subject to removal by the Governor in Council for cause.

Reappointment of Deputy Administrator

(2) The Deputy Administrator is eligible for reappointment on the expiry of his or her term of office.

Resignation

The resignation of an Administrator or Deputy Administrator becomes effective at the time that the Minister receives a written resignation from him or her or at the time specified in the resignation, whichever is later.

Independent of Crown

(1) The Administrator or Deputy Administrator shall not, while holding office, accept or hold any office or employment inconsistent with his or her duties and functions under this Part.

Effect of contravention of subsection (1)

(2) If the Administrator or Deputy Administrator contravenes subsection (1), his or her appointment is terminated on a date fixed by the Governor in Council that is not later than 30 days after notice of the contravention is received by the Minister, but the contravention does not affect the validity of any act performed by the Administrator or Deputy Administrator, as the case may be, on behalf of the Ship-source Oil Pollution Fund between the date of the contravention and the date that the appointment is terminated.

Costs, expenses and fees

(1) On the direction of the Minister of Finance, all costs and expenses incurred by the Administrator and the Deputy Administrator in performing their duties and functions under this Part, and any fees for services rendered by the Administrator or Deputy Administrator calculated in accordance with a tariff prescribed by the regulations, shall be paid out of the Consolidated Revenue Fund and charged to the Ship-source Oil Pollution Fund.

Taxation

(2) The Admiralty Court’s assessment officers may, at the request of the Minister of Justice, tax any account for costs, expenses or fees submitted by the Administrator or Deputy Administrator to the Minister of Finance as if the Administrator or Deputy Administrator were acting for the Crown in proceedings in that Court, but, on any such taxation, no fee may be allowed in excess of that set out in the tariff referred to in subsection (1).

Deputy Administrator’s duties and functions

(1) The Deputy Administrator shall perform the duties and functions consistent with this Part that are assigned to him or her by the Administrator.

Administrator’s absence or incapacity

(2) If the Administrator is absent or incapac-itated or the office of Administrator is vacant, the Deputy Administrator has all the powers and duties of the Administrator.

Professional and technical assistance

The Administrator may, for the purpose of fulfilling his or her functions, including performing his or her duties under this Part, obtain the professional, technical and other advice and assistance that he or she considers necessary.

Liability of Ship-source Oil Pollution Fund

(1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the matters referred to in sections 51 , 71 and 77 in relation to oil,

Article III of the Civil Liability Convention and

Article 3 of the Bunkers Convention, if

(

a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship or, in the case of a ship within the meaning of

Article I of the Civil Liability Convention, from the International Fund and the Supplementary Fund, and those steps have been unsuccessful;

(

b) the owner of a ship is not liable by reason of any of the defences described in subsection 77 (3),

Article III of the Civil Liability Convention or

Article 3 of the Bunkers Convention and neither the International Fund nor the Supplementary Fund are liable;

(

c) the claim exceeds

(

i) in the case of a ship within the meaning of

Article I of the Civil Liability Convention, the owner’s maximum liability under that Convention to the extent that the excess is not recoverable from the International Fund or the Supplementary Fund, and

(ii)

in the case of any other ship, the owner’s maximum liability under

Part 3;

(

d) the owner is financially incapable of meeting their obligations under

section 51 and

Article III of the Civil Liability Convention, to the extent that the obligation is not recoverable from the International Fund or the Supplementary Fund;

(

e) the owner is financially incapable of meeting their obligations under

section 71 and

Article 3 of the Bunkers Convention;

(

f) the owner is financially incapable of meeting their obligations under

section 77 ;

(

g) the cause of the oil pollution damage is unknown and the Administrator has been unable to establish that the occurrence that gave rise to the damage was not caused by a ship; or

(

h) the Administrator is a party to a settlement under

section 109 .

Exception — drilling activities

(2) This Part does not apply to a drilling ship that is on location and engaged in the exploration or exploitation of the seabed or its subsoil in so far as an escape or discharge of oil emanates from those activities.

Exception — floating storage units

(3) This Part does not apply to a floating storage unit or floating production, storage and offloading unit unless it is carrying oil as a cargo on a voyage to or from a port or terminal outside an offshore oil field.

Action by Administrator

(1) If there is an occurrence that gives rise to the liability of an owner of a ship under

section 51 , 71 or 77 ,

Article III of the Civil Liability Convention or

Article 3 of the Bunkers Convention,

(

a) the Administrator may, either before or after receiving a claim under

section 103 , commence an action in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court; and

(

b) subject to subsection (3), the Administrator is entitled in any such action to claim security in an amount not less than the owner’s maximum aggregate liability determined in accordance with

section 71 or 77 , or

Article V of the Civil Liability Convention.

Subrogation

(2) The Administrator may continue the action only if he or she has become subrogated to the rights of the claimant under paragraph 106 (3)( c ).

Entitlement to claim security

(3) The Administrator is not entitled to claim security under subsection (1) if

(

a) in the case of a ship within the meaning of

Article I of the Civil Liability Convention, a fund has been constituted under subsection 52 (2); and

(

b) in the case of any other ship, a fund has been constituted under

Article 11 of the Convention as defined in

section 24.

Claims filed with Administrator

(1) In addition to any right against the Ship-source Oil Pollution Fund under

section 101 , a person who has suffered loss or damage or incurred costs or expenses referred to in

section 51 , 71 or 77 ,

Article III of the Civil Liability Convention or

Article 3 of the Bunkers Convention in respect of actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.

Limitation period

(2) Unless the Admiralty Court fixes a shorter period under paragraph 111 ( a ), a claim must be made

(

a) within two years after the day on which the oil pollution damage occurs and five years after the occurrence that causes that damage; or

(

b) if no oil pollution damage occurs, within five years after the occurrence in respect of which oil pollution damage is anticipated.

Exception

(3) Subsection (1) does not apply to a response organization referred to in paragraph 51 ( a ), 71 (

a) or 77 (1)(

b) or a person in a state other than Canada.

Liability — exception

Sections 101 and 103 do not apply in respect of actual or anticipated oil pollution damage

(

a) on the territory or in the territorial sea or internal waters of a state, other than Canada, that is a party to the Civil Liability Convention or the Bunkers Convention; or

(

b) in the exclusive economic zone of a state referred to in paragraph (

a) or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of that state and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.

Administrator’s duties

(1) On receipt of a claim under

section 103 , the Administrator shall

(

a) investigate and assess it; and

(

b) make an offer of compensation to the claimant for whatever portion of it that the Administrator finds to be established.

Administrator’s powers

(2) For the purpose of investigating and assessing a claim, the Administrator has the powers of a commissioner under

Part I of the Inquiries Act .

Factors to be considered

(3) When investigating and assessing a claim, the Administrator may consider only

(

a) whether it is for loss, damage, costs or expenses referred to in subsection 103 (1); and

(

b) whether it resulted wholly or partially from

(

i) an act done or omitted to be done by the claimant with intent to cause damage, or

(ii)

the claimant’s negligence.

Cause of occurrence

(4) A claimant is not required to satisfy the Administrator that the occurrence was caused by a ship, but the Administrator shall dismiss a claim if he or she is satisfied on the evidence that the occurrence was not caused by a ship.

When claimant at fault

(5) The Administrator shall reduce or nullify any amount that he or she would have otherwise assessed in proportion to the degree to which he or she is satisfied that the claim resulted from

(

a) an act done or omitted to be done by the claimant with intent to cause damage; or

(

b) the claimant’s negligence.

Offer of compensation

(1) If the Administrator makes an offer of compensation to a claimant under paragraph 105 (1)( b ), the claimant shall, within 60 days after receiving the offer, notify the Administrator whether they accept or refuse it and, if no notification is received by the Administrator at the end of that period, the claimant is deemed to have refused the offer.

Appeal to Admiralty Court

(2) A claimant may, within 60 days after receiving an offer of compensation or a notification that the Administrator has disallowed the claim, appeal the adequacy of the offer or the disallowance of the claim to the Admiralty Court, but in an appeal from the disallowance of a claim, that Court may consider only the matters described in paragraphs 105 (3)(

a) and ( b ).

Acceptance of offer by claimant

(3) If a claimant accepts the offer of compensation from the Administrator,

(

a) the Administrator shall without delay direct payment to be made to the claimant of the amount of the offer out of the Ship-source Oil Pollution Fund;

(

b) the claimant is then precluded from pursuing any rights that they may have had against any person in respect of matters referred to in sections 51 , 71 and 77 ,

Article III of the Civil Liability Convention and

Article 3 of the Bunkers Convention in relation to the occurrence to which the offer of compensation relates;

(

c) the Administrator is, to the extent of the payment to the claimant, subrogated to any rights of the claimant referred to in paragraph ( b ); and

(

d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund, the Supplementary Fund or any other person liable and, for that purpose, the Administrator may commence an action in the Administrator’s or the claimant’s name, including a claim against the fund of the owner of a ship established under the Civil Liability Convention and may enforce any security provided to or enforceable by the claimant.

Claims for Loss of Income

Meaning of terms

(1) In this section, fish , fishing and fishing vessel have the same meaning as in

section 2 of the Fisheries Act .

Definition of claimant

(2) In this section, claimant means

(

a) an individual who derives income from fishing, from the production, breeding, holding or rearing of fish, or from the culture or harvesting of marine plants;

(

b) the owner of a fishing vessel who derives income from the rental of fishing vessels to holders of commercial fishing licences issued in Canada;

(

c) an individual who derives income from the handling of fish on shore in Canada directly after they are landed from fishing vessels;

(

d) an individual who fishes or hunts for food or animal skins for their own consumption or use;

(

e) a person who rents or charters boats in Canada for sport fishing; or

(

f) a worker in a fish plant in Canada, excluding a person engaged exclusively in supervisory or managerial functions, except in the case of a family-type co-operative operation that has a total annual throughput of less than 1 400 metric tons or an annual average number of employees of fewer than 50.

Filing of claim with Administrator

(3) Subject to this section, a claimant who suffers or will suffer a loss of income, or in the case of an individual described in paragraph (2)( d ), a loss of a source of food or animal skins, resulting from a discharge of oil from a ship that is not recoverable under

Part 6 may file a claim with the Administrator for that loss or future loss

(

a) within three years after the day on which the discharge of the oil occurs or first occurred, as the case may be, or could reasonably be expected to have become known to the claimant; and

(

b) within six years after the occurrence that causes the discharge.

Limitations

(4) The right to file a claim under this

section is limited to claimants who

(

a) were lawfully carrying on an activity described in subsection (2); and

(

b) except in the case of individuals described in paragraph (2)( d ),

(

i) are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act , in the case of an individual, or

(ii)

are incorporated by or under the laws of Canada or a province, in the case of a corporation.

Cause of occurrence

(5) A claimant is not required to satisfy the Administrator that the occurrence was caused by a ship, but the Administrator shall dismiss a claim if he or she is satisfied on the evidence that the occurrence was not caused by a ship.

Period for filing claim may be shortened

(6) The Admiralty Court may, by an order made under paragraph 111( a ), shorten the period referred to in subsection (3) for filing a claim under that subsection.

Administrator’s responsibility

(1) On receipt of a claim filed under

section 107 , the Administrator shall

(

a) if he or she considers the action appropriate for the proper administration of the Ship-source Oil Pollution Fund, direct payment to be made to the claimant of the amount of the loss alleged in the claim or otherwise agreed on between the Administrator and the claimant; or

(

b) in any other case, transmit the claim to the Minister.

Appointment of assessors

(2) On receipt of a claim from the Administrator under paragraph (1)( b ), the Minister shall

(

a) after consulting with the Minister of Fisheries and Oceans, the Minister of the Environment and the Administrator, appoint as assessors one or more persons not employed in the public service, as defined in subsection 3(1) of the Public Service Superannuation Act ; and

(

b) fix the remuneration and expenses to be paid to the person or persons while they are acting as assessors and authorize the Administrator to direct payment of the remuneration and expenses to them.

Assessment of loss

(3) For the purpose of assessing a loss alleged by a claimant under

section 107 , an assessor or assessors, in this

section referred to as “the assessor”,

(

a) after giving reasonable notice to the Administrator and the claimant, shall meet with the Administrator and the claimant or their representatives;

(

b) may receive and consider any written or oral evidence submitted to the assessor by or on behalf of the Administrator or the claimant, whether or not the evidence would be admissible before a court; and

(

c) has all the powers of a commissioner under

Part I of the Inquiries Act .

Report to Minister

(4) The assessor shall, within 60 days after their appointment or within any longer period that is agreed to by the Minister, report to the Minister whether, in their opinion, the following requirements have been met:

(

a) the loss alleged by the claimant has been established;

(

b) the loss resulted from the discharge of oil from a ship; and

(

c) the loss is not recoverable otherwise than under this Part.

Amount of loss

(5) If the assessor reports that the requirements of subsection (4) have been met, the report must set out the amount of the loss as assessed by them.

Payment of assessed loss out of Fund

(6) On receipt of the report, the Minister shall without delay forward a copy of it to the claimant and to the Administrator, who shall direct payment to be made to the claimant out of the Ship-source Oil Pollution Fund of an amount equal to the amount, if any, of the assessed loss set out in the report.

Proceedings Against the Owner of a Ship

Proceedings against owner of ship

(1) If a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter referred to in

section 51 , 71 or 77 ,

Article III of the Civil Liability Convention or

Article 3 of the Bunkers Convention, except in the case of proceedings based on paragraph 77 (1)(

c) commenced by the Minister of Fisheries and Oceans in respect of a pollutant other than oil,

(

a) the document commencing the proceedings shall be served on the Administrator by delivering a copy of it personally to him or her, or by leaving a copy at his or her last known address, and the Administrator is then a party to the proceedings; and

(

b) the Administrator shall appear and take any action, including being a party to a settlement either before or after judgment, that he or she considers appropriate for the proper administration of the Ship-source Oil Pollution Fund.

If Administrator party to settlement

(2) If the Administrator is a party to a settlement under paragraph (1)( b ), he or she shall direct payment to be made to the claimant of the amount that the Administrator has agreed to pay under the settlement.

Limit of Liability of Ship-source Oil Pollution Fund

Limit of liability in first year

(1) The maximum aggregate liability of the Ship-source Oil Pollution Fund under sections 101 , 103 and 107 and under any settlement, in respect of any particular occurrence, is

( a )

$100,000,000 if the occurrence took place in the year ending March 31, 1990; or

(

b) an amount calculated in accordance with subsection (2), if the occurrence takes place in any following year.

Annual adjustment of limit of liability

(2) The $100,000,000 limit of liability shall be adjusted annually so that the limit of liability arising out of any given occurrence that takes place in any following year is an amount equal to the product obtained by multiplying

(

a) the limit of liability that would have been applicable for that following year if no adjustment had been made under this

section with respect to that following year

(

b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period.

Consumer Price Index

(3) For the purpose of this section,

(

a) a reference to the “Consumer Price Index, excluding the food and energy components,” for any 12-month period means the average of the Consumer Price Index for Canada, excluding the food and energy components, as published by Statistics Canada under the authority of the Statistics Act , for each month in that 12-month period;

(

b) the Governor in Council may, on the recommendation of the Minister, make regulations prescribing the manner in which the average of the Consumer Price Index, excluding the food and energy components, for any 12-month period is to be determined and the manner of expressing any such average that is determined to be a fraction of a whole number;

(

c) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act , is adjusted to reflect a new time basis, a corresponding adjustment shall be made in the Consumer Price Index, excluding the food and energy components, for any 12-month period that is used for the purpose of calculating the limit of liability of the Ship-source Oil Pollution Fund under this section; and

(

d) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act , is modified to reflect a new content basis, that modification does not affect the operation of this section.

Adjusted limit to be published annually

(4) The Minister shall cause the limit of liability referred to in subsection (1), adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the limit of liability so published is admissible in any proceeding under this Part as conclusive proof of that limit of liability for the year in question.

Applying to Admiralty Court for directions

If the Admiralty Court, on the application of the Administrator and on notice to other interested parties that that Court considers just in the circumstances, is satisfied that, in respect of a particular occurrence, the aggregate liability of the Ship-source Oil Pollution Fund under sections 101 , 103 and 107 and subsection 109 (2) may exceed its limit of liability under

section 110 , that Court may

(

a) order the exclusion of any claimants who do not file their claims with the Administrator within the period that that Court directs; and

(

b) order that payment out of the Ship-source Oil Pollution Fund of established claims be prorated or postponed, or any combination of prorating and postponement.

Levies To Be Paid to the Ship-source Oil Pollution Fund, the International Fund and the Supplementary Fund

Definition of oil

(1) In this

section and sections 115 and 118 , oil means Contributing Oil as defined in paragraph 3 of

Article 1 of the Fund Convention if a levy is to be paid under that Convention or as defined in paragraph 7 of

Article 1 of the Supplementary Fund Protocol if a levy is to be paid under that Protocol.

Levy on shipments of oil in bulk

(2) If a levy determined in accordance with

section 113 is imposed or re-imposed by the Minister under subsection 114 (1), it shall be paid to the Receiver General

(

a) in respect of each metric ton of oil in excess of 300 metric tons imported by ship into Canada in bulk as cargo; and

(

b) in respect of each metric ton of oil in excess of 300 metric tons shipped from a place in Canada in bulk as cargo of a ship.

When payable

(3) The amounts payable under subsection (2) shall be paid, or security for payment of those amounts in an amount and form that is satisfactory to the Minister shall be given,

(

a) in the case of oil imported by ship into Canada in bulk as cargo, before the oil is unloaded from the ship; and

(

b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, before the ship leaves the facility where the oil is loaded on board the ship.

Debts due to Her Majesty

(4) All amounts payable under subsection (2) and any interest payable on those amounts are debts due to Her Majesty in right of Canada and are recoverable in any court of competent jurisdiction from

(

a) in the case of oil imported by ship into Canada in bulk as cargo, the owner, consignee or shipper of the oil; and

(

b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, the owner, consignor or shipper of the oil.

Amount of levy in first year

(1) The levy referred to in subsection 112 (2) is 30 cents in the year ending on March 31, 1990.

Annual adjustment of levy

(2) The levy referred to in subsection (1) shall be adjusted annually so that the levy in any following year is an amount equal to the product obtained by multiplying

(

a) the levy that would have been payable in that following year if no adjustment had been made under this

section with respect to that following year

(

Consumer Price Index

(3) For the purpose of this section,

(

Adjusted levy to be published annually

(4) The Minister shall cause the levy referred to in subsection 112 (2), adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the levy so published is admissible in any proceeding under this Part as conclusive proof of the levy for the year in question.

Discontinuation or re-imposition of levy

(1) The Minister, after consultation with the Minister of Fisheries and Oceans and the Minister of the Environment, may, by order, impose, discontinue or re-impose the levy referred to in subsection 112 (2).

Annual adjustment of levy unaffected

(2) The discontinuation of the levy under subsection (1) does not affect the operation of

section 113 .

Interest on unpaid amounts

If any portion of a levy is not paid as required by subsection 112 (3), interest may be charged on the amount from time to time outstanding, at a rate fixed by the Governor in Council on the recommendation of the Minister of Finance, calculated from the time when the oil is unloaded from the ship or when the ship on which the oil is loaded leaves the facility at which it is loaded, as the case may be.

Claimants entitled to interest

(1) Interest accrues on a claim under this Part against an owner of a ship, the owner’s guarantor, the Ship-source Oil Pollution Fund, the International Fund or the Supplementary Fund at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act as are in effect from time to time.

Time from which interest accrues

(2) Interest accrues on a claim under this Part

(

a) if the claim is based on paragraph 77 (1)(

a) or on

Article III of the Civil Liability Convention or

Article 3 of the Bunkers Convention, from the day on which the oil pollution damage occurs;

(

b) if the claim is based on

section 51 or 71 or paragraph 77 (1)(

b) or ( c ), or on

Article III of the Civil Liability Convention or

Article 3 of the Bunkers Convention as they pertain to preventive measures,

(

i) in the case of costs and expenses, from the day on which they are incurred, or

(ii)

in the case of loss or damage, from the day on which the loss or damage occurs; or

(

c) if the claim is based on

section 107 , from the time when the loss of income occurs.

Payments by Canada to International Fund and Supplementary Fund

(1) The Administrator shall direct payments to be made out of the Ship-source Oil Pollution Fund to the International Fund in accordance with Articles 10 and 12 of the Fund Convention and to the Supplementary Fund in accordance with Articles 10 and 12 of the Supplementary Fund Protocol.

Communication of information

(2) The Administrator shall communicate to the Minister and

(

a) the Director of the International Fund, the information referred to in

Article 15 of the Fund Convention, in accordance with that Article; or

(

b) the Director of the Supplementary Fund, the information referred to in

Article 13 of the Supplementary Fund Protocol, in accordance with that Article.

Administrator’s liability

(3) The Administrator is liable for any financial loss to the International Fund or the Supplementary Fund, as the case may be, as a result of a failure to communicate the information.

Administrator’s powers

(4) The Administrator may, for the purpose of subsection (2),

(

a) at any reasonable time, enter any place where he or she believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to information referred to in

Article 15 of the Fund Convention or

Article 13 of the Supplementary Fund Protocol, as the case may be;

(

b) examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that he or she believes, on reasonable grounds, contains any such information; and

(

c) require the owner, occupier or person in charge of the place to give the Administrator all reasonable assistance in connection with the examination and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at the place with the Administrator.

No obstruction or false statements

(5) No person shall obstruct or hinder the Administrator in the exercise of any powers under subsection (4) or knowingly make a false or misleading statement, either orally or in writing, to the Administrator while he or she is exercising those powers.

Warrant required to enter dwelling place

(6) A dwelling place may not be entered under subsection (4) unless it is entered with the occupant’s consent or under the authority of a warrant issued under subsection (7).

Authority to issue warrant

(7) On ex parte application, a justice, within the meaning of

section 2 of the Criminal Code , may issue a warrant authorizing the Administrator to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

(

a) the dwelling place is a place referred to in paragraph (4)( a );

(

b) entry to the dwelling place is necessary for the purposes of subsection (2); and

(

c) entry to the dwelling place has been refused or there are reasonable grounds to believe that it will be refused.

Records and books of account

(1) Every person referred to in subsection 112 (4) from whom the levy payable under

section 112 may be recovered shall keep at their place of business in Canada, or at any other place in Canada that may be designated by the Minister, records and books of account that set out

(

a) the amounts that are payable by that person under that section;

(

b) the type and quantity of the oil in respect of which the amounts referred to in paragraph (

a) are payable;

(

c) the time when and place where the amounts referred to in paragraph (

a) were paid or security for their payment was given in accordance with subsection 112 (3); and

(

d) any other information that the Minister may require to determine the amounts referred to in paragraph (

a) and the time when they become payable.

Disposal of records

(2) Every person who is required by this

section to keep records and books of account shall, unless otherwise authorized by the Minister, retain those records and books of account, and every account or voucher necessary to verify the information contained in them, until the expiry of six years after the end of the year to which the records or books of account relate.

Examination of records

(3) Every person who is required by this

section to keep records and books of account shall, at all reasonable times, make the records and books of account, and every account or voucher necessary to verify the information contained in them, available to any person designated in writing by the Minister and give that person every facility necessary to examine them.

Inspection

(1) Any person designated in writing by the Minister for the purpose may, at any reasonable time, enter any place where the person believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to amounts payable under

section 112 and

(

a) examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that they believe, on reasonable grounds, contains any information relevant to the enforcement of this Part; and

(

b) require the owner, occupier or person in charge of the place to give the designated person all reasonable assistance in connection with the examination under paragraph (

a) and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at that place with the designated person.

Warrant to enter dwelling place

(2) A designated person may not enter a dwelling place unless they enter it with the occupant’s consent or under the authority of a warrant issued under subsection (3).

Authority to issue warrant

(3) On ex parte application, a justice, within the meaning of

section 2 of the Criminal Code , may issue a warrant authorizing the designated person to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

(

a) the dwelling place is a place referred to in subsection (1);

(

b) entry to the dwelling place is necessary for the purpose of subsection (1); and

(

c) entry to the dwelling place has been refused or there are reasonable grounds to believe that it will be refused.

Certificate of designation

(4) The persons designated by the Minister shall be provided with a certificate of their designation and, on entering any place referred to in subsection (1), shall produce the certificate on request to the owner, occupier or person in charge of the place.

Report to Minister

(5) On the conclusion of an examination under this section, the designated person shall provide a report of their findings to the Minister.

Return of original or copy of documents

(6) The original or a copy of any record, book of account, account, voucher or other document that is taken away under paragraph (1)(

a) shall be returned to the person from whose custody it is taken within 21 days after it is taken or within any longer period that is directed by a judge of a superior court for cause or agreed to by a person who is entitled to its return.

Notice of application for extension of time

(7) An application to a judge referred to in subsection (6) for a direction under that subsection may only be made on notice to the person from whose custody the record, book of account, account, voucher or other document is taken.

Copies of documents

(8) A document purporting to be certified by the Minister to be a copy of a record, book of account, account, voucher or other document made under paragraph (1)(

a) is admissible in evidence in any prosecution for an offence under this Part and is, in the absence of evidence to the contrary, proof of its contents.

Obstruction and false statements

(9) No person shall obstruct or hinder anyone engaged in carrying out their duties and functions under this section, or knowingly make a false or misleading statement, either orally or in writing, to any person so engaged.

Governance of the Ship-source Oil Pollution Fund

Books of account and systems

(1) The Administrator shall cause

(

a) books of account and records in relation to them to be kept; and

(

b) control and information systems and management practices, related to financial and management matters, to be maintained.

Administrator’s responsibilities

(2) The books, records, systems and practices shall be kept or maintained, as the case may be, in a manner that provides reasonable assurance that

(

a) the assets of the Ship-source Oil Pollution Fund are safeguarded and controlled;

(

b) the transactions of the Ship-source Oil Pollution Fund are conducted in accordance with this Part; and

(

c) the financial, human and physical resources of the Ship-source Oil Pollution Fund are managed economically and efficiently and the operations of that Fund are carried out effectively.

Annual report

(1) The Administrator shall, as soon as feasible, but in any case within three months after the end of each fiscal year, submit an annual report, in any form that the Minister may direct, on the Administrator’s operations in that year to the Minister who shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after he or she receives it.

Form and content

(2) The annual report must include

(

a) the financial statements of the Ship-source Oil Pollution Fund;

(

b) the auditor’s report with respect to the Ship-source Oil Pollution Fund’s financial statements; and

(

c) the costs of preparing the auditor’s report.

Special examination

(1) The Administrator shall cause a special examination to be carried out in respect of the Ship-source Oil Pollution Fund to determine if the Fund’s systems and practices referred to in paragraph 120 (1)(

b) were, in the period under examination, maintained in a manner that provided reasonable assurance that they met the requirements of paragraphs 120 (2)(

a) and ( c ).

Time for examination

(2) A special examination shall be carried out at least once every five years by the Administrator and at any additional times that the Governor in Council or Minister may require.

Examiner

(3) The Governor in Council, Minister or Administrator shall appoint a person to act as an examiner for the purpose of conducting a special examination.

Independence of examiner

(4) The examiner shall not accept or hold any office or employment inconsistent with their functions under this

section and

section 123 .

Plan

(5) Before an examiner begins a special examination, they shall survey the systems and practices of the Ship-source Oil Pollution Fund to be examined and submit a plan for the examination, including a statement of the criteria to be applied in the examination, to the Minister and the Administrator.

Resolution of disagreements

(6) Any disagreement between the examiner and the Administrator with respect to the plan shall be resolved by the Minister.

Report

(1) On the conclusion of the special examination, an examiner shall provide a report of their findings to the Minister and the Administrator.

Contents

(2) The examiner’s report must include

(

a) a statement whether in their opinion, with respect to the criteria established under subsection 122 (5), there is reasonable assurance that there are no significant deficiencies in the systems and practices examined; and

(

b) a statement of the extent to which they relied on internal audits.

Right to information

(1) If the examiner considers it necessary to enable them to prepare a report as required by this Part, they may request that present or former Administrators, Deputy Administrators, employees, agents or mandataries of the Ship-source Oil Pollution Fund provide the examiner with the following to the extent they are reasonably able to do so:

(

a) information and explanations; and

(

b) access to that Fund’s records, books of account, accounts, vouchers and other documents.

Administrator’s responsibilities

(2) On the examiner’s request, the Administrator shall

(

a) provide any information and explanations that the examiner considers necessary to enable the examiner to prepare any report that is required by this Part and that the Administrator is reasonably able to provide; and

(

b) obtain from the former Administrator or the present or former Deputy Administrator, employees, agents or mandataries of that Fund any information and explanations that the examiner considers necessary to enable the examiner to prepare any report that is required by this Part and that the former Administrator or the present or former Deputy Administrator, employees, agents or mandataries are reasonably able to provide and provide the examiner with the information and explanations so obtained.

Regulations

Governor in Council

The Governor in Council may make regulations

(

a) prescribing the manner in which the levy payable under

section 112 is to be paid;

(

b) respecting the filing with the Minister of information returns by the persons referred to in paragraph 112 (4)(

a) or (

b) from whom the levy may be recovered;

(

c) providing for the filing with the Minister or the Administrator of information returns necessary to enable the Administrator to discharge his or her obligations under

section 117 ; and

(

d) generally for carrying out the purposes and provisions of this Part.

PART 8 GENERAL PROVISIONS

Administration and Enforcement

Designated officers

(1) The Minister may designate a person or class of persons as officers to be responsible for the administration and enforcement of this Act.

Immunity

(2) A designated officer is not personally liable for anything they do or omit to do in good faith under this Act.

Crown not relieved

Subsection 126 (2) does not, by reason of

section 10 of the Crown Liability and Proceedings Act , relieve the Crown of liability for a tort or extracontractual civil liability to which the Crown would otherwise be subject.

Powers

(1) A designated officer may, for the purpose of verifying compliance or preventing non-compliance with this Act, board a ship at any reasonable time. To that end, the designated officer may

(

a) direct the ship to stop; and

(

b) direct the ship to proceed to a place specified by them.

Duty to assist

(2) The owner, the master of the ship and any other person on board shall give a designated officer all reasonable assistance to enable the officer to carry out their duties and functions.

Detention

(1) If a designated officer believes, on reasonable grounds, that an offence in respect of sections 55 or 73 or regulations made under paragraph 39(

a) or (

b) has been committed by or in respect of a ship, they may make a detention order in respect of the ship.

Order to be in writing

(2) A detention order must be in writing and be addressed to every person empowered to grant clearance in respect of the ship.

Detention order to be served on master

(3) Notice of a detention order must be served on the master of the ship

(

a) by delivering a copy of the notice personally to the master; or

(

b) if service cannot reasonably be effected in the manner provided in paragraph ( a ), by leaving a copy of the notice with the person who is, or appears to be, in charge of the ship or, if there is no such person, by fixing a copy of it to a prominent part of the ship.

Contents of notice

(4) The notice must

(

a) indicate the measures to be taken to ensure compliance with

section 55 or 73 or regulations made under paragraph 39(

a) or (

b) that must be taken for the detention order to be revoked within any time specified in the order; and

(

b) if an information has been laid in respect of the alleged offence, indicate the amount not exceeding $100,000 and form of security that, pending the outcome of any proceedings related to the information, must be deposited with the Minister for the detention order to be revoked.

Revocation of orders

(5) A designated officer shall

(

a) revoke a detention order made under this

section if they are satisfied that the measures indicated in the notice have been taken and, if applicable, that security in the amount and form indicated in the notice has been deposited with the Minister; and

(

b) notify, in the form and manner specified by the Minister, the master and the persons referred to in subsection (2) of the revocation.

Duty of persons empowered to give clearance

(6) No person to whom a detention order made under this

section is addressed shall, after having received notice of the order, grant clearance to the ship in respect of which the order is made unless they are notified that the order has been revoked.

Movement of ship prohibited

(7) Subject to

section 130 , no person shall move a ship that is subject to a detention order made under this section.

Liability for expenses

(8) The owner of a ship that is detained under this

section is liable for all expenses incurred in respect of the detained ship.

Return of security

(9) The Minister, following the conclusion of any proceedings in respect of which security is deposited,

(

a) may apply the security to reimburse Her Majesty in right of Canada, either fully or partially, if any of the expenses or any fine imposed is not paid; and

(

b) shall return the security, or any part of it that remains if it is applied under paragraph ( a ), if all expenses and any fine imposed are paid.

Regulations

(10) The Governor in Council may make regulations respecting the detention of ships, including the review of detention orders.

Direction to move detained ship

The Minister may

(

a) on application made by the owner or the master of a detained ship, in the form and manner prescribed by the Minister, permit the master to move it in accordance with the Minister’s directions;

(

b) on application made by the owner of a dock or wharf, or by the person in charge of a harbour, at which a detained ship is situated, in the form and manner prescribed by the Minister, direct the person who is, or appears to be, in charge of the ship to move the ship in accordance with the Minister’s directions; and

(

c) if a person to whom a direction is given under paragraph (

b) does not comply with it and the Minister is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the ship, authorize the applicant to move it in accordance with the Minister’s directions and at the owner’s expense.

Offences

Contraventions

Every person who, or ship that, contravenes subsection 55 (1) or (2), 73 (1) or (2), 128 (2) or 129 (6) or (7) or regulations made under

section 39 is guilty of an offence and liable on

summary conviction to a fine not exceeding $100,000.

Evading payment

(1) Any person who wilfully evades or attempts to evade payment of an amount payable under

section 112 is guilty of an offence and liable on

summary conviction to a fine not exceeding $100,000.

Failure to file information return

(2) Any person who fails to file the information return referred to in paragraph 125 (

b) is guilty of an offence and liable on

summary conviction to a fine not exceeding $1,000 for each day of default.

Falsifying or destroying books of account

(3) Any person who knowingly destroys, mutilates or falsifies, or who knowingly makes any false entry or statement in, any record, book of account or other document required to be kept under

section 118 is guilty of an offence and liable on

summary conviction to a fine not exceeding $100,000.

Contraventions

(4) Every person who contravenes subsection 117(5),

section 118 or subsection 119(9) is guilty of an offence and liable on

summary conviction to a fine not exceeding $100,000.

Definition of person

(5) For the purposes of this section, person has the same meaning as in

Article I of the Civil Liability Convention within the meaning of subsection 47(1).

Jurisdiction in relation to offences

When a person or a ship is charged with having committed an offence under this Act, any court in Canada that would have had cognizance of the offence if it had been committed by a person or ship within the limits of its ordinary jurisdiction has jurisdiction to try the offence as if it had been committed there.

Proof of offence

In a prosecution of a ship for an offence under this Act, it is sufficient proof that the ship has committed the offence to establish that the act or omission that constitutes the offence was committed by the master or any person on board, other than a designated officer, whether or not the person on board is identified.

Limitation period

(1) Proceedings by way of

summary conviction under this Act may be instituted within two years after the day on which the Minister becomes aware of the subject matter of the proceedings.

Minister’s certificate

(2) A document that purports to have been issued by the Minister and that certifies the day on which he or she became aware of the subject matter of the proceedings is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is evidence that the Minister became aware of the subject matter on that day.

Defendant outside Canada

(3) If the proceedings cannot be commenced within two years because the proposed defend-ant is outside Canada, the proceedings may be commenced not later than two months after the defendant returns to Canada.

Sale of Ships

Application by Minister

(1) The Minister may apply to any court of competent jurisdiction for an order authorizing him or her to sell a ship that has been detained under

section 129 if

(

a) an information is laid in respect of an offence under subsection 55 (1) or (2) or 73 (1) or (2) or of a regulation made under paragraph 39(

a) or ( b ), and

(

i) the security required under paragraph 129 (4)(

b) is not deposited within the time specified in the detention order,

(ii)

the person or ship charged is convicted, and

(iii)

the fine imposed and the expenses incurred in respect of the detained ship have not been paid; and

(

b) no information is laid and

(

i) the measures referred to in paragraph 129 (4)(

a) have not been taken within the time specified in the detention order, and

(ii)

the expenses incurred in respect of the detained ship have not been paid.

Court may authorize sale

(2) A court seized of an application for the sale of a ship may

(

a) authorize the Minister to sell the ship in the manner and subject to the terms and conditions that it considers appropriate; and

(

b) on application by the Minister or a person referred to in paragraph 137 (1)(

b) or ( c ), give directions concerning the ranking of the interests in the ship.

Notice

(1) As soon as is feasible after making an application under

section 136 , the Minister shall give notice of the application by registered mail to

(

a) the registrar of the register in which the ship is registered;

(

b) the holder of any mortgage registered against the ship that is registered in the register referred to in paragraph ( a ); and

(

c) the holder of any maritime lien against the ship and the holder of any similar interest, if the holder is known to the Minister at the time of the application.

Day notice deemed to be given

(2) A notice sent by registered mail is deemed to have been given to the person to whom it is sent on the day on which the Minister receives an acknowledgement of receipt.

Relief from giving notice

(3) If the court that is seized of an application for the sale of a ship is satisfied that it is appropriate to do so, it may relieve the Minister of the obligation to give the notice referred to in subsection (1), or authorize him or her to give the notice in any other manner that it considers appropriate.

Payment of proceeds

(1) If a ship is sold under an order, the proceeds of the sale shall be applied to satisfy claims in the following order of priority:

(

a) the expenses incurred in respect of the detained ship and its sale;

(

b) the claims of the master and crew members for wages;

(

c) the amount of any fine imposed;

(

d) the interests of persons who have been recognized and ranked by the court under paragraph 136 (2)( b ).

Surplus

(2) Any surplus of the proceeds of sale remaining after all claims have been satisfied is to be paid to the person registered as the owner of the ship or, in the absence of any registration, to the person who owns the ship.

Proceedings against owner

(3) If the proceeds of sale of a ship are insufficient to satisfy the claims described in paragraphs (1)(

a) and ( c ), the Minister may proceed against the owner of the ship for the balance owing.

Clear title

(4) On selling a ship under an order, the Minister may, by bill of sale, give the purchaser a valid title to the ship free from any mortgage or other claim that is in existence at the time of the sale.

The Act is amended by adding the following in numerical order:

Maritime Lien

Definition of foreign vessel

(1) In this section, foreign vessel has the same meaning as in

section 2 of the Canada Shipping Act, 2001 .

Maritime lien

(2) A person, carrying on business in Canada, has a maritime lien against a foreign vessel for claims that arise

(

a) in respect of goods, materials or services wherever supplied to the foreign vessel for its operation or maintenance, including, without restricting the generality of the foregoing, stevedoring and lighterage; or

(

b) out of a contract relating to the repair or equipping of the foreign vessel.

Services requested by owner

(2.1) Subject to

section 251 of the Canada Shipping Act, 2001 , for the purposes of paragraph (2)( a ), with respect to stevedoring or lighterage, the services must have been provided at the request of the owner of the foreign vessel or a person acting on the owner’s behalf.

Exception

(3) A maritime lien against a foreign vessel may be enforced by an action in rem against a foreign vessel unless

(

a) the vessel is a warship, coast guard ship or police vessel; or

(

b) at the time the claim arises or the action is commenced, the vessel is being used exclusively for non-commercial governmental purposes.

Federal Courts Act

(4) Subsection 43(3) of the Federal Courts Act does not apply to a claim secured by a maritime lien under this section.

Limitation Period

Proceedings under maritime law

Except as otherwise provided in this Act or in any other Act of Parliament, no proceedings under Canadian maritime law in relation to any matter coming within the class of navigation and shipping may be commenced later than three years after the day on which the cause of action arises.

The Act is amended by adding the following in numerical order:

Inconsistency

Priority over Arctic Waters Pollution Prevention Act

In the event of an inconsistency between this Act and the provisions of the Arctic Waters Pollution Prevention Act , the provisions of this Act prevail to the extent of the inconsistency.

Coming Into Force

Order in council

Section 45 comes into force on a day to be fixed by order of the Governor in Council.

Schedule 1 to the Act is amended by replacing the reference “ (Section 24) ” after the heading “SCHEDULE 1” with the references “ (Section 24 and subsections 26(2) and 31(1)) ”.

Schedule 1 to the Act is amended by adding the following after

Part 2:

PART 3

Text of reservations made under

Article 18 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976

Claims in respect of the raising, removal, destruction or rendering harmless of a ship that is sunk, wrecked, stranded or abandoned, including anything that is or has been on board that ship.

Schedule 2 to the Act is amended by replacing the reference “ (Section 35) ” after the heading “SCHEDULE 2” with the references “ (Sections 35 and 40) ”.

The Act is amended by adding, after

Schedule 4, the Schedules 5 to 8 set out in the

schedule to this Act.

R.S., c. F-7; 2002, c. 8, s. 14

FEDERAL COURTS ACT

2002, c. 8, s. 40(4)

Subsection 43(8) of the English version of the Federal Courts Act is replaced by the following:

Arrest

(8) The jurisdiction conferred on the Federal Court by

section 22 may be exercised in rem against any ship that, at the time the action is brought, is owned by the beneficial owner of the ship that is the subject of the action.

TRANSITIONAL PROVISIONS

A claim to recover loss, damage, costs or expenses filed with the Administrator under

section 85 of the Marine Liability Act before the day on which this

section comes into force is deemed to have been filed under

section 103 of the Marine Liability Act , as enacted by

section 11 .

The Administrator and Deputy Administrator who are in office on the day on which this

section comes into force shall continue to perform their duties and functions as if they had been appointed under

section 94 or 95, as the case may be, of the Marine Liability Act , as enacted by

section 11 .

CONSEQUENTIAL AMENDMENTS

R.S., c. A-12

Arctic Waters Pollution Prevention Act

2001, c. 6, s. 109

Section 2.1 of the Arctic Waters Pollution Prevention Act is replaced by the following:

Inconsistency with Marine Liability Act

2.1

In the event of an inconsistency between the provisions of this Act, or any regulation made under this Act, and the provisions of the Marine Liability Act , the provisions of that Act prevail to the extent of the inconsistency.

2002, c. 10

Nunavut Waters and Nunavut Surface Rights Tribunal Act

Subsection 152(3) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act is replaced by the following:

Definitions from Marine Liability Act

(3) For the purposes of the definition developer in subsection (1) and for the purposes of sections 153 and 154, the words discharge , oil , owner and ship have the same meaning as in

section 91 of the Marine Liability Act .

Subsection 154(2) of the Act is replaced by the following:

Liability of Fund

(2) In relation to loss or damage resulting from a discharge of oil from a ship that is engaged in marine transportation as described in paragraph (

c) of the definition development activity in subsection 152(1), the Ship-source Oil Pollution Fund established under

Part 7 of the Marine Liability Act is liable to the same extent that a developer would be liable under

section 153 if paragraph 153(2)(

b) did not apply.

COMING INTO FORCE

Royal assent

(1) Sections 1 to 10, 12, 14 to 16 and 18 come into force 90 days after the day on which this Act receives royal assent.

Order in council

(2) Sections 11, 13, 17 and 19 to 23 come into force on a day to be fixed by order of the Governor in Council.

SCHEDULE (Section 17)

SCHEDULE 5 (Sections 48 and 50 )

TEXT OF ARTICLES I TO XI, XII BIS AND 15 OF THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1992, AS AMENDED BY THE RESOLUTION OF 2000

ARTICLE I

For the purposes of this Convention:

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

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.

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.

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.

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

Pollution damage means:

(

a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;

(

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

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

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.

Organization means the International Maritime Organization.

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

ARTICLE II

This Convention shall apply exclusively:

(

a) to pollution damage caused:

(

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

(ii)

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

(

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

ARTICLE III

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

No liability for pollution damage shall attach to the owner if he proves that the damage:

(

a) resulted from

an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character, or

(

b) was wholly caused by

an act or omission done with intent to cause damage by a third party, or

(

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

If the owner 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, the owner may be exonerated wholly or partially from his liability to such person.

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

(

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

(

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

(

c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;

(

d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

(

e) any person taking preventive measures;

(

f) all servants or agents of persons mentioned in subparagraphs ( c ), (

d) and ( e );

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

Nothing in this Convention shall prejudice any right of recourse of the owner against third parties.

ARTICLE IV

When an incident involving two or more ships occurs and pollution damage results therefrom, the owners of all the ships concerned, unless exonerated under

Article III, shall be jointly and severally liable for all such damage which is not reasonably separable.

ARTICLE V

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

( a )

4,510,000 units of account for a ship not exceeding 5,000 units of tonnage;

(

b) for a ship with a tonnage in excess thereof, for each additional unit of tonnage, 631 units of account in addition to the amount mentioned in sub-paragraph ( a );

provided, however, that this aggregate amount shall not in any event exceed 89,770,000 units of account.

The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal a

Document details

Collection	Annual Statutes
Citation	2009, c. 21
Type	statute
Volume / chapter	2009, c. 21
Language	en
Format	xml
Source	JUSTICE_LAWS
Identifier	d7afdcae8921f52848d5129d6aef709984e63cf2

Source file is stored in the law ingest library (xml).