Institution of Proceedings in Canada

Marginal note: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

  • (c) the contract was made in Canada.

• Marginal note: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 6LIABILITY AND COMPENSATION FOR POLLUTION

Interpretation

Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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).

Marginal note: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.

• Marginal note: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.

Marginal note: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 1Civil Liability for Pollution

Owners of Ships

Marginal note: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

  • (c) for costs and expenses incurred

    • (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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.