Marine pollution is predominantly now governed by statute law but the common law can still have some application. The torts of nuisance, trespass and negligence and the Rylands v Fletcher doctrine still can have some application.
The main federal statutes that address pollution from ships are:
- Canada Shipping Act 2001, Parts 8 and 9
- Marine Liability Act, Parts 6 and 7
- Canadian Environmental Protection Act, 1999
- Fisheries Act
- Migratory Birds Convention Act, 1994
In addition, provincial pollution statutes may apply, although this is not clear.
Canada Shipping Act 2001, Parts 8 and 9
Parts 8 and 9 of the Canada Shipping Act do a number of things. Specifically:
- Prescribed vessels (oil tankers of 150 or more gross tons, other vessels of 400 gross tons or more that carry oil as cargo, groups of vessels (barges) with combined tonnage of 150 or more tons that carry oil) are required to have an arrangement with a pollution response organization and to carry pollution insurance.
- Prescribed oil handling facilities must have oil pollution prevention and emergency plans and an arrangement with a pollution response organization.
- Vessels are prohibited from discharging a pollutant (including oil and oily mixture, noxious liquid, sewage and sludge and garbage.
- Vessels are required to report the discharge of a pollutant.
- Pollution Prevention and Response Officers are authorized to board, inspect and detain vessels and may require security be posted before a vessel is allowed to leave.
- If a vessel or oil handling facility has discharged, is discharging or is likely to discharge a pollutant, the Minister may take measures to remedy, minimize or prevent pollution damage including the removal, sale, or destruction of vessel or the Minister may direct any person or vessel to take measures to remedy, minimize or prevent pollution (in which event compensation shall be paid to such person or vessel [except the polluter] by the Crown).
- If a vessel or person contravenes a provision of the Act, they are guilty of an offence and liable to a maximum penalty of $1 million and/or 18 months imprisonment (some provisions carry a lesser penalty). In some cases, more frequently of late, Administrative Monetary Penalties are applied instead of the offence procedure.
Marine Liability Act, Parts 6 and 7 (Oil and HNS)
The Marine Liability Act does the following:
- Enacts the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 and the International Convention on Civil Liability for Oil Pollution Damage, 1992 ( and the Supplementary Fund and Supplementary Fund Protocol), which provide for civil liability and certificates of financial responsibility and establish limitation amounts.
- Continues the Ship Source Oil Pollution Fund which is required to pay prescribed claims for oil pollution damage from a ship and authorizes the Administrator to commence subrogation proceedings against the wrongdoer.
- Provides for civil liability
against the owner of the ship for oil pollution damage caused by a discharge of oil from the ship. The owner is liable for clean-up costs and costs of measures to reinstate the environment. The liability is not dependent on proof of fault or negligence. The owner has very limited defences. The limitation period applicable to oil pollution damage claims from a ship is from three to six years depending on whether there was more than one occurrence.
The Marine Liability Act will, at a future date, also enact and include the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010, concluded at London on April 30, 2010 (the "HNS convention"). The HNS Convention will be addressed in Part 6 of the MLA and included as Schedule 9 to the MLA. The HNS Convention establishes a civil liablity and compensation regime similar to the International Convention on Civil Liability for Oil Pollution Damage but in respect of hazardous and noxious substances. The shipowner’s liability under the HNS Convnention is limited to 100 million Special Drawing Rights (SDR) for bulk HNS and 115 SDRs for packaged HNS. The HNS Convention is not yet in force internationally and is therfore not yet part of Canadian maritime law.
Canadian Environmental Protection Act, 1999
The Canadian Environmental Protection Act, 1999 is a comprehensive anti-pollution statute that is based upon the "polluter pays" principle. It creates an offence for, among other things, the disposal of pollutants at sea. The directors and officers, Master, Chief Engineer and ship owner are all required to take reasonable care to ensure compliance with the Act and are deemed to be party to and guilty of any offence. The maximum penalty is $300,000 and/or imprisonment of 6 months if the Crown proceeds summarily or $1 million and/or imprisonment of 3 years if the Crown proceeds by indictment. In the event of a spill, any person who owns or has charge, management or control over the substance or causes or contributes to the spill is jointly and severally liable to pay clean-up costs and costs of restoring the environment. The defences under the Act are limited but a due diligence defence is available for some offences.
The Fisheries Act prohibits the deposit of a "deleterious substance" in waters frequented by fish and creates both civil and criminal liability for such a deposit. The offence is subject to a maximum penalty of $300,000 and/or imprisonment of 6 months if the Crown proceeds summarily or $1 million and/or imprisonment of 3 years if the Crown proceeds by indictment. Civil liability is absolute and does not depend on negligence. There are again very limited defences.
Migratory Birds Convention Act, 1994
The Migratory Birds Convention Act, 1994 prohibits the deposit of a substance that is harmful to migratory birds in waters frequented by migratory birds by any person or vessel and creates criminal liability for such a deposit. The offence is subject to a maximum penalty of $300,000 and/or imprisonment of 6 months if the Crown proceeds summarily or $1 million and/or imprisonment of 3 years if the Crown proceeds by indictment. Minimum fines of $500,000 and $100,000 are also created for vessels over 5000 tonnes. There is a due diligence defence available.