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Marine Liability Act

An Act respecting marine liability, and to validate certain by-laws and regulations

SHORT TITLE

Short title

1. This Act may be cited as the Marine Liability Act.

INTERPRETATION

Definitions

2. The definitions in this section apply in this Act.

"Admiralty Court"

« Cour d'amirauté »

"Admiralty Court" means the Federal Court.

"Minister"

« ministre »

"Minister" means the Minister of Transport.

HER MAJESTY

Binding on Her Majesty

3. This Act is binding on Her Majesty in right of Canada or a province.

PART 1

PERSONAL INJURIES AND FATALITIES

Interpretation and Application

Definition of "dependant"

4. In this Part, "dependant", in relation to an injured or deceased person, means an individual who was one of the following in relation to the injured or deceased person at the time the cause of action arose, in the case of an injured person, or at the time of death, in the case of a deceased person:

(a) a son, daughter, stepson, stepdaughter, grandson, granddaughter, adopted son or daughter, or an individual for whom the injured or deceased person stood in the place of a parent;

(b) a spouse, or an individual who was cohabiting with the injured or deceased person in a conjugal relationship having so cohabited for a period of at least one year; or

(c) a brother, sister, father, mother, grandfather, grandmother, stepfather, stepmother, adoptive father or mother, or an individual who stood in the place of a parent.

Application of this Part

5. This Part applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law, as defined in the Federal Court Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping.

Liability to Dependants

Damages for personal injury

6. (1) If a person is injured by the fault or neglect of another under circumstances that entitle the person to recover damages, the dependants of the injured person may maintain an action in a court of competent jurisdiction for their loss resulting from the injury against the person from whom the injured person is entitled to recover.

Damages for death

(2) If a person dies by the fault or neglect of another under circumstances that would have entitled the person, if not deceased, to recover damages, the dependants of the deceased person may maintain an action in a court of competent jurisdiction for their loss resulting from the death against the person from whom the deceased person would have been entitled to recover.

Inclusion in damages

(3) The damages recoverable by a dependant of an injured or deceased person may include

(a) an amount to compensate for the loss of guidance, care and companionship that the dependant could reasonably have expected to receive from the injured or deceased person if the injury or death had not occurred; and

(b) any amount to which a public authority may be subrogated in respect of payments consequent on the injury or death that are made to or for the benefit of the injured or deceased person or the dependant.

Excluded factors

(4) In the assessment of damages, any amount paid or payable on the death of the deceased person or any future premiums payable under a contract of insurance shall not be taken into account.

Apportionment

(5) The damages recoverable by a dependant are subject to any apportionment made under Part 2.

Multiple dependants

7. Damages may be awarded to dependants in proportion to their loss resulting from the injury or death, and the amount so awarded shall be divided among the dependants in the shares determined by the court.

Payment into court

8. A person against whom an action is commenced under this Part may pay into court an amount of money as compensation for the fault or neglect to all persons entitled to damages without specifying the shares into which it is to be divided.

Postponement of distribution

9. The court may in its discretion postpone the distribution of any amount to which a person under the age of eighteen or under a legal disability is entitled, may order its payment from the amount paid into court under section 8 and may make any other order that is in the interest of that person.

Beneficiaries of action

10. (1) An action under this Part shall be for the benefit of the dependants of the injured or deceased person.

By whom action is brought

(2) An action under subsection 6(2) shall be brought by the executor or administrator of the deceased person, but if no action is brought within six months after that person's death or if there is no executor or administrator, the action

(a) may be brought by any or all of the dependants of the deceased person; and

(b) shall be subject to the same procedure, with any adaptations that may be required, as if it were brought by an executor or administrator.

Parties to action

11. A person who commences an action under this Part shall

(a) take reasonable steps to identify and join as parties to the action all persons who are entitled or who claim to be entitled to damages as dependants of the injured or deceased person; and

(b) state in the statement of claim the grounds for the claim of each person on whose behalf the action is commenced.

One action for same cause

12. Claims for the benefit of the dependants of an injured or deceased person may be made in more than one action but, on the application of any party, actions for the benefit of the dependants of the same injured or deceased person may be consolidated in one action or tried together in the same court of competent jurisdiction.

Actions by different claimants

13. If actions are commenced for the benefit of two or more persons claiming to be entitled to damages under this Part as dependants of an injured or deceased person, the court may make any order or determination that it considers just.

Limitation period

14. (1) No action may be commenced under subsection 6(1) later than two years after the cause of action arose.

Limitation period

(2) No action may be commenced under subsection 6(2) later than two years after the death of the deceased person.

PART 2

APPORTIONMENT OF LIABILITY

Interpretation and Application

Definition of "earnings"

15. (1) In this Part, "earnings" includes freight, passage money and hire.

Meaning of loss caused by ship

(2) For the purposes of this Part, a reference to loss caused by the fault or neglect of a ship shall be construed as including

(a) any salvage expenses consequent on that fault or neglect; and

(b) any other expenses consequent on that fault or neglect and recoverable at law by way of damages, other than a loss described in subsection 17(3).

Application of this Part

16. This Part applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law, as defined in the Federal Court Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping.

General

Apportionment based on degree of fault

17. (1) Where loss is caused by the fault or neglect of two or more persons or ships, their liability is proportionate to the degree to which they are respectively at fault or negligent and, if it is not possible to determine different degrees of fault or neglect, their liability is equal.

Joint and several liability

(2) Subject to subsection (3), the persons or ships that are at fault or negligent are jointly and severally liable to the persons or ships suffering the loss but, as between themselves, they are liable to make contribution to each other or to indemnify each other in the degree to which they are respectively at fault or negligent.

Exception - loss of ships and property

(3) Where, by the fault or neglect of two or more ships, loss is caused to one or more of those ships, their cargo or other property on board, or loss of earnings results to one or more of those ships, their liability to make good such loss is not joint and several.

Persons responsible

(4) In this section, a reference to liability of a ship that is at fault or negligent includes liability of any person responsible for the navigation and management of the ship or any other person responsible for the fault or neglect of the ship.

Claim for contribution or indemnity

18. A person who is entitled to claim contribution or indemnity under this Part from another person or ship that is or may be liable in respect of a loss may do so

(a) by adding the other person or ship as a party to a proceeding pending before a court or an administrative or arbitral tribunal of competent jurisdiction, in accordance with the applicable rules of procedure or arbitration agreement;

(b) by commencing a proceeding in a court or an administrative or arbitral tribunal of competent jurisdiction; or

(c) if the other person or ship has settled with the person suffering the loss, by commencing or continuing a proceeding before a court or an administrative or arbitral tribunal of competent jurisdiction.

Adjustment of settlement

19. The court or administrative or arbitral tribunal in which a proceeding is continued or commenced under paragraph 18(c) may deny the award of damages or adjust the amount awarded if it is not satisfied that the settlement was reasonable.

Limitation period

20. (1) No claim may be made under section 18 later than one year after the date of judgment in the proceeding or the date of the settlement agreement.

Claims not defeated

(2) A claim under section 18 is not defeated by any period of limitation or prescription, or by any requirement for notice, that is applicable to the original claim in respect of which contribution or indemnity is sought.

Last clear chance

21. This Part applies notwithstanding that a person who suffered a loss had the opportunity to avoid the loss and failed to do so.

Contractual rights

22. The rights conferred by this Part on a person or ship that is found liable or that settles a claim are subject to any existing contract between that person or ship and a person from whom contribution or indemnity is claimed.

Limitation of Time

Limitation period for claim or lien

23. (1) No action may be commenced later than two years after the loss or injury arose to enforce a claim or lien against a ship in collision or its owners in respect of any loss to another ship, its cargo or other property on board, or any loss of earnings of that other ship, or for damages for loss of life or personal injury suffered by any person on board that other ship, caused by the fault or neglect of the former ship, whether that ship is wholly or partly at fault or negligent.

Extension of time by court

(2) A court having jurisdiction to deal with an action referred to in subsection (1)

(a) may, in accordance with the rules of court, extend the period referred to in that subsection to the extent and on the conditions that it thinks fit; and

(b) shall, if satisfied that there has not during that period been a reasonable opportunity of arresting the ship within the jurisdiction of the court, or within the territorial waters of the country to which the claimant's ship belongs or in which the claimant resides or has their principal place of business, extend that period to an extent sufficient to provide that reasonable opportunity.

Definition of "owner"

(3) In this section, "owner", in relation to a ship, includes any person responsible for the navigation and management of the ship or any other person responsible for the fault or neglect of the ship.

PART 3

LIMITATION OF LIABILITY FOR MARITIME CLAIMS

Interpretation

Definitions

24. The definitions in this section apply in this Part.

"Convention"

« Convention »

"Convention" means the Convention on Limitation of Liability for Maritime Claims, 1976, concluded at London on November 19, 1976, as amended by the Protocol, Articles 1 to 15 of which Convention are set out in Part 1 of Schedule 1 and Article 18 of which is set out in Part 2 of that Schedule.

"maritime claim"

« créance maritime »

"maritime claim" means a claim described in Article 2 of the Convention for which a person referred to in Article 1 of the Convention is entitled to limitation of liability.

"Protocol"

« Protocole »

"Protocol" means the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976, concluded at London on May 2, 1996, Articles 8 and 9 of which are set out in Part 2 of Schedule 1.

Extended meaning of expressions

25. (1) For the purposes of this Part and Articles 1 to 15 of the Convention,

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

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

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

but does not include an air cushion vehicle or a floating platform constructed for the purpose of exploring or exploiting the natural resources or the subsoil of the sea-bed;

(b) the definition "shipowner" in paragraph 2 of Article 1 of the Convention shall be read without reference to the word "seagoing" and as including any person who has an interest in or possession of a ship from and including its launching; and

(c) the expression "carriage by sea" in paragraph 1(b) of Article 2 of the Convention shall be read as "carriage by water".

Inconsistency

(2) In the event of any inconsistency between sections 28 to 34 of this Act and Articles 1 to 15 of the Convention, those sections prevail to the extent of the inconsistency.

Application

Force of law

26. Subject to the other provisions of this Part, Articles 1 to 15 of the Convention have the force of law in Canada.

State Party to the Convention

27. For purposes of the application of the Convention, Canada is a State Party to the Convention.

Liability for ships under 300 tons

28. (1) The maximum liability for maritime claims that arise on any distinct occasion involving a ship with a gross tonnage of less than 300 tons, other than claims mentioned in section 29, 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

(2) For the purposes of subsection (1), 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 made, to the Annexes or Appendix to that Convention.

Passenger claims, no certificate

29. (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 for which no certificate is required under Part V of the Canada Shipping Act is the greater of

(a) 2,000,000 units of account; and

(b) the number of units of account calculated by multiplying 175,000 units of account by the number of passengers on board the ship.

Passenger claims, no contract of carriage

(2) Notwithstanding Article 6 of the Convention, the maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to persons carried on a ship 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 its certificate under Part V of the Canada Shipping Act, or

(ii) if no certificate is required under that Part, the number of persons on board the ship.

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 board a ship on the business of a ship; or

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

Definition of "passenger"

(4) In subsection (1), "passenger" means a person carried on a ship in circumstances described in paragraph 2(a) or (b) of Article 7 of the Convention.

Definition of "unit of account"

(5) In subsections (1) and (2), "unit of account" means a special drawing right issued by the International Monetary Fund.

Liability of Owners of Docks, Canals and Ports

Limitation of liability

30. (1) The maximum liability of an owner of a dock, canal or port, for a claim that arises on any distinct occasion for loss caused to a ship, or to any cargo or other property on board a ship, is the greater of

(a) $2,000,000, and

(b) the amount calculated by multiplying $1,000 by the number of tons of the gross tonnage of the largest ship that is at the time of the loss, or had been within a period of five years before that time, within the area of the dock, canal or port over which the owner had control or management.

Calculation of tonnage

(2) For the purposes of subsection (1), a ship's gross tonnage shall be calculated in the manner described in subsection 28(2).

Application

(3) The maximum liability specified in subsection (1) also applies to any person for whose act or omission the owner is responsible.

Conduct barring limitation

(4) This section does not apply to an owner, or a person for whose act or omission the owner is responsible, if it is proved that the loss resulted from the personal act or omission of that owner or that person, as the case may be, committed with intent to cause the loss or recklessly and with knowledge that the loss would probably result.

Meaning of terms

(5) For the purposes of this section,

(a) "dock" includes wet docks and basins, tidal-docks and basins, locks, cuts, entrances, dry docks, graving docks, gridirons, slips, quays, wharfs, piers, stages, landing places, jetties and synchrolifts; and

(b) "owner of a dock, canal or port" includes any person or authority having the control or management of the dock, canal or port and any ship repairer using the dock, canal or port.

Amendment of Maximum Liability

Amendment of limits

31. (1) The Governor in Council may, by order, declare that an amendment made in accordance with Article 8 of the Protocol to any of the limits of liability specified in paragraph 1 of Article 6 or paragraph 1 of Article 7 of the Convention has the force of law in Canada.

Amendment of sections 28, 29 and 30

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

Procedure

Jurisdiction of Admiralty Court

32. (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under Articles 11 to 13 of the Convention.

Right to assert limitation defence

(2) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28, 29 or 30 of this Act or paragraph 1 of Article 6 or 7 of the Convention, that person may assert the right to limitation of liability in a defence filed, or by way of action or counterclaim for declaratory relief, in any court of competent jurisdiction in Canada.

Powers of Admiralty Court

33. (1) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28 or 29 of this Act or paragraph 1 of Article 6 or 7 of the Convention, the Admiralty Court, on application by that person or any other interested person, including a person who is a party to proceedings in relation to the same subject-matter before another court, tribunal or authority, may take any steps it considers appropriate, including

(a) determining the amount of the liability and providing for the constitution and distribution of a fund under Articles 11 and 12 of the Convention;

(b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within a certain time, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs; and

(c) enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than the Admiralty Court in relation to the same subject-matter.

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.

Lien and other rights

(3) No lien or other right in respect of a ship or other property affects the proportions in which a fund is distributed by the Admiralty Court.

Procedural matters

(4) The Admiralty Court may

(a) make any rule of procedure 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 2 of Article 11 of the Convention.

Interest

(5) For the purposes of Article 11 of the Convention, interest is payable 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.

Release of ships, etc.

34. (1) Where a ship or other property is released under paragraph 2 of Article 13 of the Convention, in any case other than one in which a fund has been constituted in a place described in paragraphs (a) to (d) of that Article, the person who applied for the release is deemed to have submitted to the jurisdiction of the court that ordered the release for the purpose of determining the claim.

Limitation fund in state other than Canada

(2) In considering whether to release a ship or other property referred to in subsection (1), the court shall not have regard to a limitation fund constituted in a country other than Canada unless the court is satisfied that the country is a State Party to the Convention.

PART 4

LIABILITY FOR CARRIAGE OF PASSENGERS BY WATER

Interpretation

Definitions

35. The definitions in this section apply in this Part.

"Convention"

« Convention »

"Convention" means the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded at Athens on December 13, 1974, as amended by the Protocol, Articles 1 to 22 of which Convention are set out in Part 1 of Schedule 2.

"Protocol"

« Protocole »

"Protocol" means the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded at London on March 29, 1990, Articles III and VIII of which are set out in Part 2 of Schedule 2.

Extended meaning of expressions

36. (1) For the purposes of this Part and Articles 1 to 22 of the Convention,

(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, without regard to method or lack of propulsion and whether seagoing or not, but not including an air cushion vehicle; and

(b) in the definition "contract of carriage" in Article 1 of the Convention, the expression "carriage by sea" shall be read as "carriage by water".

Owners of ships

(2) For greater certainty, in the application of the Convention under this Part, Article 19 of the Convention applies to owners of all ships, whether seagoing or not.

Application

Force of law

37. (1) Articles 1 to 22 of the Convention have the force of law in Canada.

Extended application

(2) Articles 1 to 22 of the Convention also apply in respect of

(a) the carriage by water, under a contract of carriage, of passengers or of passengers and their luggage from one place in Canada to the same or another place in Canada, either directly or by way of a place outside Canada; and

(b) the carriage by water, otherwise than under a contract of carriage, of persons or of persons and their luggage, excluding

(i) the master of a ship, a member of a ship's crew or any other person employed or engaged in any capacity on board a ship on the business of the ship, and

(ii) a person carried on board a ship other than a ship operated for a commercial or public purpose.

State Party to the Convention

38. For purposes of the application of the Convention, Canada is a State Party to the Convention.

Regulations and Orders

Regulations

39. The Governor in Council may make regulations requiring insurance or other financial security to be maintained to cover liability to passengers under this Part.

Amendment of limits

40. The Governor in Council may, by order, declare that an amendment made in accordance with Article VIII of the Protocol to any of the limits of liability specified in paragraph 1 of Article 7 or in Article 8 of the Convention, including the deductibles referred to in Article 8, has the force of law in Canada.

PART 5

LIABILITY FOR CARRIAGE OF GOODS BY WATER

Interpretation

Definitions

41. The definitions in this section apply in this Part.

"Hague-Visby Rules"

« règles de La Haye-Visby »

"Hague-Visby Rules" means the rules set out in Schedule 3 and embodied in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, concluded at Brussels on August 25, 1924, in the Protocol concluded at Brussels on February 23, 1968, and in the additional Protocol concluded at Brussels on December 21, 1979.

"Hamburg Rules"

« règles de Hambourg »

"Hamburg Rules" means the rules set out in Schedule 4 and embodied in the United Nations Convention on the Carriage of Goods by Sea, 1978, concluded at Hamburg on March 31, 1978.

Other statutory limitations of liability

42. Nothing in this Part affects the operation of any other Part of this Act, or sections 389, 390, 585 and 586 of the Canada Shipping Act, or a provision of any other Act or regulation that limits the liability of owners of ships.

Hague-Visby Rules

Effect

43. (1) The Hague-Visby Rules have the force of law in Canada in respect of contracts for the carriage of goods by water between different states as described in Article X of those Rules.

Extended application

(2) The Hague-Visby Rules also apply in respect of contracts for the carriage of goods by water from one place in Canada to another place in Canada, either directly or by way of a place outside Canada, unless there is no bill of lading and the contract stipulates that those Rules do not apply.

Meaning of "Contracting State"

(3) For the purposes of this section, the expression "Contracting State" in Article X of the Hague-Visby Rules includes Canada and any state that, without being a Contracting State, gives the force of law to the rules embodied in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, concluded at Brussels on August 25, 1924 and in the Protocol concluded at Brussels on February 23, 1968, regardless of whether that state gives the force of law to the additional Protocol concluded at Brussels on December 21, 1979.

Replacement by Hamburg Rules

(4) The Hague-Visby Rules do not apply in respect of contracts entered into after the coming into force of section 45.

Hamburg Rules

Report to Parliament

44. The Minister shall, before January 1, 2005 and every five years afterwards, consider whether the Hague-Visby Rules should be replaced by the Hamburg Rules and cause a report setting out the results of that consideration to be laid before each House of Parliament.

Effect

45. (1) The Hamburg Rules have the force of law in Canada in respect of contracts for the carriage of goods by water between different states as described in Article 2 of those Rules.

Extended application

(2) The Hamburg Rules also apply in respect of contracts for the carriage of goods by water from one place in Canada to another place in Canada, either directly or by way of a place outside Canada, unless the contract stipulates that those Rules do not apply.

Meaning of "Contracting State"

(3) For the purposes of this section, the expression "Contracting State" in Article 2 of the Hamburg Rules includes Canada and any state that gives the force of law to those Rules without being a Contracting State to the United Nations Convention on the Carriage of Goods by Sea, 1978.

References to "sea"

(4) For the purposes of this section, the word "sea" in the Hamburg Rules shall be read as "water".

Signatures

(5) For the purposes of this section, paragraph 3 of article 14 of the Hamburg Rules applies in respect of the documents referred to in article 18 of those Rules.

Institution of Proceedings in Canada

Claims not subject to Hamburg Rules

46. (1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where

(a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada;

(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or

Agreement to designate

(2) Notwithstanding subsection (1), the parties to a contract referred to in that subsection may, after a claim arises under the contract, designate by agreement the place where the claimant may institute judicial or arbitral proceedings.

PART 6

LIABILITY AND COMPENSATION FOR POLLUTION

Interpretation

Definitions

47. The definitions in this section apply in this Part.

"Administrator"

« administrateur »

"Administrator" means the Administrator of the Ship-source Oil Pollution Fund appointed under section 79.

"Civil Liability Convention"

« Convention sur la responsabilité civile »

"Civil Liability Convention" means the International Convention on Civil Liability for Oil Pollution Damage, concluded at Brussels on November 29, 1969, as amended by the Protocol concluded at London on November 19, 1976 and the Protocol concluded at London on November 27, 1992.

"Convention ship"

« navire assujetti à la Convention »

"Convention ship" means a seagoing ship, wherever registered,

(a) carrying, in bulk as cargo, crude oil, fuel oil, heavy diesel oil, lubricating oil or any other persistent hydrocarbon mineral oil; or

(b) on a voyage following any such carriage of such oil, unless it is proved that there is no residue of the oil on board.

"discharge"

« rejet »

"discharge", in relation to a pollutant, means any discharge of the pollutant that directly or indirectly results in the pollutant 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 the International Fund for Compensation for Oil Pollution Damage, concluded at Brussels on December 18, 1971, as amended by the Protocol concluded at London on November 19, 1976 and the Protocol concluded at London on November 27, 1992.

"guarantor"

« garant »

"guarantor" means a guarantor under a contract of liability insurance or other similar security relating to a shipowner's liability under section 51.

"in bulk"

« en vrac »

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

"International Fund"

« Fonds international »

"International Fund" means the International Oil Pollution Compensation Fund established by the Fund Convention.

"Limitation of Liability Convention"

« Convention sur la limitation de responsabilité »

"Limitation of Liability Convention" has the meaning ascribed to the word "Convention" in section 24.

"oil"

« hydrocarbures »

"oil", except in sections 93 to 99, 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

(a) in relation to a Convention ship, the person who is registered as the owner of the ship or, if no person is so registered,

(i) the person who owns the ship, or

(ii) if the ship is owned by a state and operated by a company that is registered as the ship's operator in that state, that company; or

(b) in relation to any other ship, 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

(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 quality of the waters to an extent that is detrimental to their use by humans or by an animal or plant that is 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 quality of the waters to an extent that is detrimental to their use by humans or by an animal or plant that is useful to humans,

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

"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 method 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 established by section 77.

Application

Geographical application - general

48. (1) For ships other than Convention ships, this Part applies in respect of actual or anticipated pollution damage, 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 the territory of Canada or in Canadian waters; or

(b) in the exclusive economic zone of Canada.

Geographical application - Convention ships

(2) For Convention ships, this Part applies, subject to subsection (3), in respect of actual or anticipated oil pollution damage, irrespective of the location of the actual or anticipated discharge of the oil and irrespective of the location where any preventive measures are taken,

(a) on the territory of Canada or in Canadian waters;

(b) in the exclusive economic zone of Canada;

(c) 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

(d) in the exclusive economic zone of a state referred to in paragraph (c) 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.

Exception

(3) Sections 84 and 85 do not apply in respect of actual or anticipated oil pollution damage in an area described in paragraph (2)(c) or (d).

Exception - drilling activities

49. (1) This Part does not apply to a drilling ship that is on location and engaged in the exploration or exploitation of the sea-bed or its subsoil in so far as a discharge of a pollutant emanates from those activities.

Exception - floating storage units

(2) 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.

Priority over Arctic Waters Pollution Prevention Act

50. In the event of an inconsistency between the provisions of this Part and the provisions of the Arctic Waters Pollution Prevention Act or any regulations made under that Act, the provisions of this Part prevail to the extent of the inconsistency.

DIVISION 1

CIVIL LIABILITY FOR POLLUTION

Owners of Ships

Liability for pollution and related costs

51. (1) Subject to the other provisions of this Part, the owner of a ship is liable

(a) for oil pollution damage from the ship;

(b) for costs and expenses incurred by

(i) the Minister of Fisheries and Oceans,

(ii) a response organization within the meaning of section 654 of the Canada Shipping Act,

(iii) any other person in Canada, or

(iv) any person in a state, other than Canada, that is a party to the Civil Liability Convention,

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 the ship, 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

(i) by the Minister of Fisheries and Oceans in respect of measures taken under paragraph 678(1)(a) of the Canada Shipping Act, in respect of any monitoring under paragraph 678(1)(b) of that Act or in relation to any direction given under paragraph 678(1)(c) of that Act, or

(ii) by any other person in respect of measures the person was directed to take or prohibited from taking under paragraph 678(1)(c) of the Canada Shipping 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.

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 actually undertaken or to be undertaken.

Strict liability subject to certain defences

(3) The owner's liability under subsection (1) does not depend on proof of fault or negligence, but the owner is not liable under that subsection if the owner establishes 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 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 Part 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) Costs and expenses incurred by the owner of a ship in respect of measures voluntarily taken by the owner to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from the ship, 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 the owner's 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 occurred, before the earlier of

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

(ii) six years after the occurrence that caused the pollution damage or, if the pollution damage was caused by more than one occurrence having the same origin, six years after the first of the occurrences; or

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

Admiralty Court has jurisdiction

52. (1) Subject to section 59, all claims under this Part may be sued for and recovered in the Admiralty Court.

Jurisdiction may be exercised in rem

(2) Subject to subsection (3), the jurisdiction conferred on the Admiralty Court by subsection (1) 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 arose or the action is commenced, the ship was being used exclusively for non-commercial governmental purposes.

Action by Administrator

53. (1) If there is an occurrence that gives rise to liability of an owner of a ship under subsection 51(1),

(a) the Administrator may, either before or after receiving a claim under section 85, 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 under section 54 or 55.

Subrogation

(2) The Administrator may continue an action referred to in subsection (1) only if the Administrator has become subrogated to the rights of the claimant under subsection 87(3).

Entitlement to claim security

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

(a) in the case of a Convention ship, a fund has been constituted under section 58; and

(b) in the case of any other ship, a fund has been constituted under Article 11 of the Limitation of Liability Convention.

Limitation of liability - Convention ships

54. (1) The maximum liability under section 51 of an owner of a Convention ship in respect of an occurrence is

(a) if the ship has a tonnage of not more than 5,000 tons, 3,000,000 units of account; and

(b) if the ship has a tonnage of more than 5,000 tons, 3,000,000 units of account for the first 5,000 tons and 420 units of account for each additional ton, not exceeding 59,700,000 units of account in the aggregate.

Conduct barring limitation

(2) An owner is not entitled to limitation of liability under subsection (1) if it is proved that the actual or anticipated oil pollution damage resulted from the personal act or omission of the owner, committed with the intent to cause the oil pollution damage or recklessly and with knowledge that the oil pollution damage would probably result.

Calculation of tonnage

(3) For the purpose of subsection (1), a ship's tonnage is the gross tonnage 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 made, to the Annexes or Appendix to that Convention.

Definition of "unit of account"

(4) In paragraphs (1)(a) and (b), "unit of account" means a special drawing right issued by the International Monetary Fund.

Amendment of limits

(5) If amendments to the limits of liability specified in paragraph 1 of Article V of the Civil Liability Convention are made in accordance with Article 15 of the Protocol of 1992 concluded at London on November 27, 1992, the Governor in Council may, by order, on the recommendation of the Minister, amend the limits of liability set out in subsection (1) by the same amounts.

Limitation of liability - other ships

55. The maximum liability under section 51 of an owner of a ship other than a Convention ship in respect of an occurrence shall be as determined in accordance with Part 3.

Special Rules - Convention Ships

No damage in Canadian territory or Canadian waters

56. No action may be commenced in a court in Canada in relation to an occurrence that gives rise to liability of an owner of a Convention ship in respect of matters referred to in subsection 51(1) if

(a) the occurrence does not result in oil pollution damage on the territory of Canada, in Canadian waters or in the exclusive economic zone of Canada; and

(b) no costs, expenses, loss or damage described in paragraph 51(1)(b) or (c) are incurred in respect of actual or anticipated oil pollution damage in any of the areas described in paragraph (a).

Remedies exclusive

57. (1) The owner of a Convention ship is not liable for the matters referred to in subsection 51(1) otherwise than as provided by this Part.

Servants, etc., not liable

(2) Subject to subsection 51(4), none of the following persons is liable for the matters referred to in subsection 51(1) unless the actual or anticipated oil pollution damage resulted from a personal act or omission of theirs that was committed with intent to cause the damage or was committed recklessly and with knowledge that the damage would probably result:

(a) a servant or an agent of the owner of a Convention ship or one of its crew members;

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

(d) any person using a Convention ship to perform salvage operations with the consent of the owner or on the instructions of a competent public authority;

(e) a person taking measures to prevent oil pollution damage from a Convention ship; or

(f) a servant or an agent of a person referred to in any of paragraphs (c) to (e).

Owners jointly and severally liable

(3) If two or more owners of Convention ships are liable for costs, expenses, loss or damage referred to in subsection 51(1), the owners of all those ships are jointly and severally liable, to the extent that the costs, expenses, loss or damage are not reasonably separable.

Shipowner's fund

58. (1) The owner of a Convention ship is not entitled to limitation of liability under subsection 54(1) unless the owner constitutes a fund, in this section referred to as the "shipowner's fund", in an amount equal to the limit of the owner's liability under that subsection.

Manner in which fund to be constituted

(2) A shipowner's fund may be constituted by the owner of a ship

(a) making a payment into court of the amount described in subsection (1); or

(b) filing with the court a guarantee or other security satisfactory to the court.

Distribution of fund

(3) A shipowner's fund shall be distributed among claimants in proportion to the amount of their established claims as determined by the court.

Subrogation

(4) If, before the distribution of a shipowner's fund, the owner of the Convention ship, or anyone on behalf of the owner, pays compensation in respect of any matters referred to in subsection 51(1) as a result of the occurrence in question, the person who pays the compensation is subrogated to the rights that the person compensated would have had under this Part.

Postponing distribution

(5) If the owner of a Convention ship, or a person who pays compensation on behalf of the owner, satisfies the court that, because of a claim that might later be established before a court of a state other than Canada that is not a party to the Civil Liability Convention,

(a) they may be compelled to pay compensation mentioned in subsection (4) after the distribution of the shipowner's fund, and

(b) they would enjoy a right of subrogation under subsection (4) if the compensation were paid before the distribution of the shipowner's fund,

the court may postpone the distribution of the portion of the shipowner's fund that it considers appropriate, having regard to the possibility that such a claim might be established.

Duplication of actions barred

59. If the owner of a Convention ship has constituted a shipowner's fund under section 58 with a court of a state other than Canada that is a party to the Civil Liability Convention, no action may be commenced or continued in any court in Canada in relation to the same occurrence in respect of matters referred to in subsection 51(1).

Certificate attesting to financial responsibility

60. (1) A Convention ship carrying, in bulk as cargo, more than 2,000 metric tons of crude oil, fuel oil, heavy diesel oil, lubricating oil or any other persistent hydrocarbon mineral oil shall not

(a) enter or leave a port in Canadian waters or in the exclusive economic zone of Canada or arrive at or leave an offshore terminal in Canadian waters or in the exclusive economic zone of Canada, 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 the Civil Liability 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

unless a certificate described in Article VII of the Civil Liability Convention and subsection 61(1) has been issued in respect of the ship, showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of the ship.

Government- owned ship

(2) In relation to a Convention ship owned by a state that is a party to the Civil Liability Convention and being used for commercial purposes, it is a sufficient compliance with subsection (1) if there is in force a certificate issued by the government of the state showing that the ship is owned by that state and that any liability for pollution damage as defined in Article I of that Convention will be met up to the limit stipulated in Article V of that Convention.

Certificate to be carried on board

(3) A certificate referred to in subsection (1) or (2) must be carried on board the Convention ship to which it relates.

Certificate to be produced on demand

(4) The master of a Convention ship or any other person on board shall produce the certificate or give details of it at the request of any authorized officer of the Government of Canada.

By whom certificate to be issued

61. (1) The certificate referred to in subsection 60(1)

(a) must be a certificate issued by the Minister, if the Convention ship is registered in Canada;

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

(c) must be a certificate issued or recognized by the Minister, if the Convention ship is registered in a state other than Canada that is not a party to the Civil Liability Convention.

Issuance of certificate by Minister

(2) On an application to the Minister for a certificate referred to in subsection 60(1) in respect of a Convention 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, subject to subsection (3), issue such a certificate to the owner of the ship if the Minister is satisfied that a contract of insurance or other security satisfying the requirements of Article VII of the Civil Liability 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 60(1), or that the insurance or other security will not cover the owner's liability under section 51, the Minister may refuse to issue the certificate referred to in subsection 60(1).

Claimant may sue owner's guarantor

62. A claimant may commence an action against a guarantor of the owner of a Convention ship in respect of a matter referred to in subsection 51(1) and, in that event,

(a) the guarantor is entitled to establish the defences affecting the owner's liability set out in subsection 51(3) and, in addition, may establish as a defence that the occurrence resulted from the wilful misconduct of the owner;

(b) the guarantor may not plead as a defence the bankruptcy or winding-up of the owner;

(c) irrespective of whether the owner is entitled to limitation of liability, the guarantor is entitled to limitation of liability in respect of claims made by virtue of this section to the same amount and in like manner as an owner is entitled to limitation of liability under this Part; and

(d) if the owner of a Convention ship and the guarantor each applies to the Admiralty Court in accordance with subsection 58(2) in order to limit their liability, any amount paid into court or filed as a guarantee pursuant to either application shall be treated as paid or filed also pursuant to the other application.

Registration of Foreign Judgments

Definitions

63. The definitions in this section apply in this section and in sections 64 to 71.

"foreign judgment"

« jugement étranger »

"foreign judgment" means a judgment of a court of a state other than Canada that is a party to the Civil Liability Convention in respect of a liability described in Article III of that Convention, resulting from an occurrence after the entry into force of that Convention for Canada.

"judgment creditor"

« bénéficiaire du jugement »

"judgment creditor" means a person in whose favour a foreign judgment was rendered, and includes the person's assigns, heirs, executors, liquidators of the succession, administrators and other legal representatives.

"judgment debtor"

« débiteur »

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

Registration of foreign judgments

64. (1) If a foreign judgment has been rendered, the judgment creditor may, at any time during which the foreign judgment is enforceable in the state in which it was 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) On an application made under subsection (1), the Admiralty Court may, subject to subsections (3) and (4) and section 67, 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 in the state in which it was rendered.

If judgment debtor appears

(3) If, under the rules of the Admiralty Court, the judgment debtor appears at the hearing of an application made under subsection (1), 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;

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

When judgment partly satisfied

(4) On any application made under subsection (1), if the Court is satisfied that the foreign judgment has been partly satisfied, the foreign judgment shall be ordered to be registered only in respect of the balance remaining payable.

Pre-registration interest

65. For the purpose of section 64, a foreign judgment includes any interest, up to the day of registration, that has accrued on it under the law of the state in which it was rendered.

Costs

66. 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 shall be taxed by an assessment officer of the Admiralty Court and the assessment endorsed on the order for registration.

Conversion to Canadian currency

67. (1) A foreign judgment expressed in a currency other than Canadian currency cannot be registered under section 64 until the Admiralty Court has determined the equivalent amount in Canadian currency on the basis of the rate of exchange prevailing on the day on which the foreign judgment was rendered, as 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 has been determined in accordance with subsection (1), 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

68. Subject to section 69, a foreign judgment registered under section 64 has, as of the date of registration, the same force and effect as a judgment of the Admiralty Court rendered on that date.

Service of notice of registration

69. If a foreign judgment is registered under section 64 after an ex parte hearing, execution of the registered judgment may not issue until the expiry of 30 days after the judgment debtor has been served with a notice of registration of the foreign judgment in the manner set out in the rules of the Admiralty Court for the service of originating documents.

Application to set aside registration

70. (1) At any time after a foreign judgment has been registered under section 64, 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) On an application by a judgment debtor under subsection (1), the Admiralty Court shall set aside the registration of the foreign judgment if it is satisfied that

(a) the foreign judgment had been fully or partly satisfied;

(b) the foreign court acted without jurisdiction;

(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 67;

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

(h) for any other reason that Court erred in registering 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 had been partly satisfied, or on a 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

71. (1) At any time after a foreign judgment has been registered under section 64, 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 70(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 not be stayed except on the grounds that an application to set aside the registration has been made under subsection 70(1).

DIVISION 2

COMPENSATION FOR POLLUTION

International Oil Pollution Compensation Fund

Legal capacity of International Fund

72. For the purposes of the rights and obligations described in this Part, 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

73. If a claimant commences an action against the owner of a Convention ship or the owner's guarantor in respect of a matter referred to in subsection 51(1),

(a) the document commencing the proceedings shall be served on the International Fund and the International 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 the International Fund.

Method of service on International Fund

74. In addition to any method of service permitted by the rules of the court in which a proceeding referred to in section 73 is commenced, service of documents on the International Fund under paragraph 73(a) may be effected by registered mail.

Circumstances in which International Fund is liable

75. If there is an occurrence involving a Convention ship, to the extent that a claimant has been unable to obtain full compensation under this Part from the ship's owner or the owner's guarantor, the International Fund is, subject to the provisions of the Fund Convention, liable in accordance with Article 4 of that Convention.

Contributions by Canada to International Fund

76. (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.

Communication of information

(2) The Administrator shall communicate to the Director of the International Fund the information referred to in Article 15 of the Fund Convention in accordance with that Article and is liable for any financial loss to the International Fund as a result of the failure to so communicate.

Powers of Administrator

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

(a) at any reasonable time, enter any premises where the Administrator believes on reasonable grounds that there are any records, books, accounts, vouchers or other documents relating to information referred to in Article 15 of the Fund Convention;

(b) examine anything on the premises and copy or take away for further examination or copying any record, book, account, voucher or other document that the Administrator believes, on reasonable grounds, contains any such information; and

(c) require the owner, occupier or person in charge of the premises to give 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 premises with the Administrator.

No obstruction or false statements

(4) No person shall obstruct or hinder the Administrator in the exercise of any powers under subsection (3) or knowingly make a false or misleading statement, either orally or in writing, to the Administrator while the Administrator is exercising those powers.

Warrant required to enter living quarters

(5) Living quarters may not be entered under subsection (3) unless they are entered with the consent of the occupant or under the authority of a warrant issued under subsection (6).

Authority to issue warrant

(6) 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 living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that entry to the living quarters

(a) is necessary for the purposes of subsection (2); and

(b) has been refused or there are reasonable grounds to believe that it will be refused.

Meaning of "associated persons"

(7) 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" for the purpose of the definition "Associated person" in subparagraph 2(b) of Article 10 of the Fund Convention.

Ship-source Oil Pollution Fund

77. (1) There is hereby established in the accounts of Canada an account known as the Ship-source Oil Pollution Fund.

Credits

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

(a) all payments received under sections 93 and 99;

(b) interest computed in accordance with section 78; and

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 section 76, paragraph 87(3)(a), paragraph 89(1)(a), subsection 89(6) or under a settlement;

(b) all amounts for which the Administrator is liable under subsection 76(2);

(d) all costs and expenses that are directed to be paid under section 82;

(e) the remuneration and expenses of assessors that are directed to be paid under subsection 89(2); and

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

Interest to be credited to Fund

78. 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 to the credit of that Fund.

Administrator and Deputy Administrator

Appointment of Administrator

79. (1) The Governor in Council shall 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.

Administrator eligible for reappointment

(2) The Administrator is eligible for reappointment on the expiry of the Administrator's term of office.

Administrator to be independent of Crown

80. (1) The Administrator shall not, while holding office, accept or hold any office or employment inconsistent with the Administrator's duties under this Part.

Effect of contravention of subsection (1)

(2) If the Administrator contravenes subsection (1), the Administrator's appointment as Administrator 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 on behalf of the Ship-source Oil Pollution Fund between the date of the contravention and the date that the appointment is terminated under this subsection.

Professional and technical aid

81. The Administrator may, for the purpose of performing duties under this Part, obtain the professional, technical and other advice and assistance that the Administrator considers necessary.

Costs, expenses and fees

82. (1) On the direction of the Minister of Finance, all costs and expenses incurred by the Administrator in performing duties and functions under this Part, and fees for services rendered by the 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) Assessment officers of the Admiralty Court may, at the request of the Minister of Justice, tax any account for costs, expenses or fees submitted by the Administrator to the Minister of Finance as if the 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

83. (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.

Eligibility for re-appointment

(2) The Deputy Administrator is eligible for reappointment on the expiry of the Deputy Administrator's term of office.

Absence, etc., of Administrator

(3) If the Administrator is absent or incapacitated or the office of Administrator is vacant, the Deputy Administrator has all the powers and duties of the Administrator.

Application of sections 80 and 82

(4) Sections 80 and 82 apply to the Deputy Administrator, with any modifications that the circumstances require.

Liability of Ship-source Oil Pollution Fund

84. Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the matters referred to in subsection 51(1) in relation to oil, if

(a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship and, in the case of a Convention ship, from the International Fund and have been unsuccessful;

(b) the owner is not liable by reason of any of the defences described in subsection 51(3) and the International Fund is not liable either;

(i) in the case of a Convention ship, the owner's maximum liability under this Part to the extent that the excess is not recoverable from the International Fund, and

(ii) in the case of a ship other than a Convention ship, the owner's maximum liability under Part 3;

(d) the owner is financially incapable of meeting the owner's legal obligations under subsection 51(1), to the extent that the obligation is not recoverable from the International Fund;

(e) 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

(f) the Administrator is a party to a settlement under section 90.

Claims Arising under Section 51

Claims filed with Administrator

85. (1) In addition to any right against the Ship-source Oil Pollution Fund under section 84, a person who has suffered loss or damage or incurred costs or expenses referred to in subsection 51(1) in respect of actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.

Time limits

(2) Unless the Admiralty Court fixes a shorter period under paragraph 92(a), a claim under subsection (1) must be made

(a) within two years after the day on which oil pollution damage occurred and five years after the occurrence that caused that damage, or

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

Exception

(3) Subsection (1) does not apply to a response organization referred to in subsection 51(1)(b) or a person in a state other than Canada.

Duties of Administrator

86. (1) On receipt of a claim under section 85, the Administrator shall

(a) investigate and assess the claim; and

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

Powers of Administrator

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

(a) whether the claim is for loss, damage, costs or expenses referred to in subsection 85(1); and

(b) whether the claim 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 negligence of the claimant.

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 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 the Administrator would have otherwise assessed in proportion to the degree to which the Administrator 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 negligence of the claimant.

Offer of compensation

87. (1) If the Administrator makes an offer of compensation to a claimant under section 86, the claimant shall, within 60 days after receiving the offer, notify the Administrator whether the claimant accepts or refuses it and, if no notification has been 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 from the Administrator 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 86(3)(a) and (b).

Acceptance of offer by claimant

(3) If a claimant accepts an