Marine Liability Act (S.C. 2001, c. 6)

Short Title

Marginal note:Short title

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

Interpretation

Marginal note:Definitions

2 The definitions in this section apply in this Act.

Admiralty Court

Admiralty Court means the Federal Court. (Cour d’amirauté)

Minister

Minister means the Minister of Transport. (ministre)

Her Majesty

Marginal note:Binding on Her Majesty

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

PART 1Personal Injuries and Fatalities

Interpretation and Application

Marginal note: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.

Marginal note: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 Courts Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping.

Liability to Dependants

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Apportionment

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

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Beneficiaries of action

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

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Limitation period

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

• Marginal note:Limitation period

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

PART 2Apportionment of Liability

Interpretation and Application

Definition of earnings

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

• Marginal note: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).

Marginal note: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 Courts Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping.

General

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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 3Limitation of Liability for Maritime Claims

DIVISION 1Convention on Limitation of Liability for Maritime Claims, 1976

Interpretation

Marginal note:Definitions

24 The following definitions apply in this Division.

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. (Convention)

maritime claim

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. (créance maritime)

passenger

passenger means

• (a) a person carried on board a ship in circumstances described in paragraph 2(a) or (b) of Article 7 of the Convention;

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

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

• (d) a sail trainee. (passager)

Protocol

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. (Protocole)

unit of account

unit of account means a special drawing right issued by the International Monetary Fund. (unités de compte)

Marginal note:Extended meaning of expressions

• 25 (1) For the purposes of this Division 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”.

• Marginal note: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

Marginal note:Force of law

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

• Marginal note:Amendments to Part 3 of Schedule 1

  (2) The Governor in Council may, by regulation, amend Part 3 of Schedule 1 to add or delete a reservation made by Canada under Article 18 of the Convention.

• Marginal note:Exceptions

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

Marginal note:State Party to the Convention

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

Marginal note:Passenger claims

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

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

  • (b) 175 000 units of account multiplied by

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

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

• Marginal note:Claims — no contract of carriage

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

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

  • (b) 175 000 units of account multiplied by

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

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

• Marginal note:Exception

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

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

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

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

  • (c.1) a stowaway, a trespasser or any other person who boards a ship without the consent or knowledge of the master or the owner; or

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

Marginal note:Other claims

29 The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is

• (a) $1,500,000 in respect of claims for loss of life or personal injury; and

• (b) $750,000 in respect of any other claims.

Marginal note:Calculation of tonnage

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

Liability of Owners of Docks, Canals and Ports

Marginal note: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.

• Marginal note:Calculation of tonnage

  (2) For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in the manner described in section 29.1.

• Marginal note:Application

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

• Marginal note: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.

• Marginal note: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

Marginal note:Amendment of limits

• 31 (1) The Governor in Council may, by regulation, amend Schedule 1 to implement an amendment that is made in accordance with Article 8 of the Protocol to any of the limits of liability that are specified in paragraph 1 of Article 6 or paragraph 1 of Article 7 of the Convention.

• Marginal note:Amendment of sections 28, 29 and 30

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

Procedure

Marginal note: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.

• Marginal note: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.

Marginal note: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;

  • (a.1) permitting that person to reduce the amount that they are required to pay to the fund by up to an amount equal to the sum of any amounts paid to a claimant before the constitution of the fund in respect of a maritime claim for oil pollution damage caused by oil of any kind or in any form other than oil as defined in Article I of the Civil Liability Convention as defined in subsection 47(1);

  • (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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Public notice

• 33.1 (1) In the case of a maritime claim referred to in paragraph 33(1)(a.1), the person constituting the fund must, as soon as feasible, give notice of the fund’s constitution in

  • (a) the Canada Gazette;

  • (b) a newspaper in general circulation in the region where the incident occurred; and

  • (c) any other appropriate manner in the communities potentially affected by the incident.

• Marginal note:Accessibility

  (2) Notices given under paragraphs (1)(b) and (c) are to be made accessible to the public for a period of at least 30 days.

• Marginal note:Proof of accessibility

  (3) The person constituting the fund must, within 15 days after the 30th day of the period referred to in subsection (2), file evidence in the Admiralty Court that the notices have been made accessible to the public for a period of at least 30 days.

• Marginal note:Court order in case of non-compliance

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

Marginal note:Release of ships, etc.

• 34 (1) If 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 2(a) to (d) of that Article, the person who obtained the release is deemed to have submitted to the jurisdiction of the court that ordered the release for the purpose of determining the claim.

• Marginal note: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.

Regulations

Marginal note:Governor in Council

34.1 The Governor in Council may make regulations

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

• (b) generally for carrying out the purposes and provisions of this Division.

DIVISION 2Limitation of Liability — Air Cushion Vehicles

Interpretation

Marginal note:Definitions

34.2 The following definitions apply in this Division.

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. (Convention)

owner

owner, in relation to an air cushion vehicle, means the owner, charterer, manager and operator of an air cushion vehicle. (propriétaire)

passenger

passenger means

• (a) a person carried on board an air cushion vehicle

  • (i) under a contract of passenger carriage, or

  • (ii) to accompany, with the consent of the carrier, a vehicle or live animals which are covered by a contract for the carriage of goods; or

• (b) a participant in an adventure tourism activity referred to in subsection 37.1(1). (passager)

Protocol

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. (Protocole)

Application

Marginal note:Force of law

• 34.3 (1) Subject to the other provisions of this Division, Article 1, paragraphs 1(a) to (c), (e) and (f) and paragraph 2 of Article 2, paragraphs (a), (c) and (e) of Article 3, Articles 4 and 5, paragraphs 2 and 3 of Article 6, paragraph 1 of Article 9 and Articles 10 to 14 of the Convention have the force of law in Canada in relation to air cushion vehicles.

• Marginal note:Adaptation — Convention

  (2) For the purposes of this Division, the provisions of the Convention referred to in subsection (1) are adapted as follows:

  • (a) a reference to “ship” or “vessel” is to be read as a reference to “air cushion vehicle”;

  • (b) a reference to “shipowner” is to be read as a reference to “owner”;

  • (c) paragraph 2 of Article 1 of the Convention is to be read without reference to the word “seagoing”;

  • (d) the expression “carriage by sea” in paragraph 1(b) of Article 2 of the Convention is to be read as “carriage by water”;

  • (e) the first reference to “paragraph 1(a)” in paragraph 2 of Article 6 of the Convention is to be read as reference to “subsection 34.4(1), (2) or (4)” of this Act and the second reference to “paragraph 1(a)” is to be read as a reference to “subsections 34.4(1), (2) and (4) in proportion to the amount of the established claims under each of those subsections”;

  • (f) a reference to “paragraph 1(b)” in paragraphs 2 and 3 of Article 6 of the Convention is to be read as a reference to “subsection 34.4(5)” of this Act;

  • (g) the reference to “Article 6” in paragraph 1 of Article 9 of the Convention is to be read as a reference to “section 34.4” of this Act;

  • (h) the reference to “Articles 6 and 7” in paragraph 1 of Article 11 of the Convention is to be read as a reference to “section 34.4” of this Act; and

  • (i) the reference to “the provisions of paragraphs 1, 2 and 3 of Article 6 and of Article 7” in paragraph 1 of Article 12 of the Convention is to be read as a reference to “section 34.4” of this Act.

• Marginal note:Inconsistency

  (3) In the event of any inconsistency between sections 34.4 to 34.7 of this Act and the provisions of the Convention referred to in subsection (1), those sections prevail to the extent of the inconsistency.

Maximum Liability

Marginal note:Passenger claims

• 34.4 (1) The maximum liability for claims that arise on any distinct occasion for loss of life or personal injury to passengers of an air cushion vehicle of less than 8 000 kg all up weight is the greater of

  • (a) $3,500,000, and

  • (b) $300,000 multiplied by

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

    • (ii) the number of passengers on board the air cushion vehicle, if no Canadian maritime document is required under that Act.

• Marginal note:Claims — no contract of carriage

  (2) The maximum liability for claims that arise on any distinct occasion for loss of life or personal injury to persons carried on board an air cushion vehicle of less than 8 000 kg all up weight otherwise than under a contract of passenger carriage is the greater of

  • (a) $3,500,000, and

  • (b) $300,000 multiplied by

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

    • (ii) the number of persons on board the air cushion vehicle, if no Canadian maritime document is required under that Act.

• Marginal note:Exception

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

  • (a) the master of an air cushion vehicle, a member of an air cushion vehicle’s crew — or any other person employed or engaged in any capacity on the business of an air cushion vehicle — when they are carried on board the air cushion vehicle;

  • (b) a person carried on board an air cushion vehicle that is not operated for a commercial or public purpose;

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

  • (d) a stowaway, a trespasser or any other person who boards an air cushion vehicle without the consent or knowledge of the master or the owner of the air cushion vehicle.

• Marginal note:Other claims — loss of life or personal injury

  (4) The maximum liability for claims that arise on any distinct occasion for loss of life or personal injury involving an air cushion vehicle, other than claims referred to in subsections (1) and (2), is

  • (a) $1,500,000 for an air cushion vehicle of less than 8 000 kg all up weight;

  • (b) $5,000,000 for an air cushion vehicle of 8 000 kg or more but less than 13 000 kg all up weight; and

  • (c) $5,000,000 for an air cushion vehicle of 13 000 kg or more all up weight, plus $40 for each kilogram that exceeds 13 000 kg.

• Marginal note:Other claims

  (5) The maximum liability for claims that arise on any distinct occasion involving an air cushion vehicle, other than claims referred to in subsections (1), (2) and (4), is

  • (a) $750,000 for an air cushion vehicle of less than 8 000 kg all up weight;

  • (b) $2,500,000 for an air cushion vehicle of 8 000 kg or more but less than 13 000 kg all up weight; and

  • (c) $2,500,000 for an air cushion vehicle of 13 000 kg or more all up weight, plus $20 for each kilogram that exceeds 13 000 kg.

Procedure

Marginal note:Jurisdiction of Admiralty Court

• 34.5 (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.

• Marginal note:Right to assert limitation defence

  (2) If a claim is made or apprehended against a person in respect of liability that is limited by section 34.4, 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.

Marginal note:Powers of Admiralty Court

• 34.6 (1) If a claim is made or apprehended against a person in respect of liability that is limited by section 34.4, 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.

• Marginal note: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.

• Marginal note:Lien and other rights

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

• Marginal note: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.

• Marginal note: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.

Marginal note:Release

34.7 If an air cushion vehicle 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 2(a) to (d) of that Article, the person who obtained the release is deemed to have submitted to the jurisdiction of the court that ordered the release for the purpose of determining the claim.

PART 4Liability for Carriage of Passengers by Water

Interpretation

Marginal note:Definitions

35 The definitions in this section apply in this Part.

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. (Convention)

Protocol

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. (Protocole)

Marginal note: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, craft or air cushion vehicle designed, used or capable of being used solely or partly for navigation, whether seagoing or not, but not including a vessel propelled manually by paddles or oars; 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”.

• Marginal note: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.

• Marginal note:Inconsistency

  (3) In the event of any inconsistency between this section and sections 35 and 37 to 40 of this Act and Articles 1 to 22 of the Convention, those sections prevail to the extent of the inconsistency.

Application

Marginal note:Force of law

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

• Marginal note: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,

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

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

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

Marginal note:Exception — adventure tourism activities

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

  • (a) it exposes participants to an aquatic environment;

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

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

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

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

• Marginal note:Exception — persons

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

Marginal note: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

Marginal note:Governor in Council

39 The Governor in Council may make regulations

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

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

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

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

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

Marginal note:Amendment of limits

40 The Governor in Council may, by regulation, amend Schedule 2 to implement an amendment that is made in accordance with Article VIII of the Protocol to any of the limits of liability that are specified in paragraph 1 of Article 7 or in Article 8 of the Convention, including the deductibles referred to in that Article 8.

PART 5Liability for Carriage of Goods by Water

Interpretation

Marginal note:Definition of Hague-Visby Rules

41 In this Part, 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.

Marginal note:Other statutory limitations of liability

42 Nothing in this Part affects the operation of any other Part of this Act, or section 250 of the Canada Shipping Act, 2001, or a provision of any other Act or regulation that limits the liability of owners of ships.

Hague-Visby Rules

Marginal note: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.

• Marginal note: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.

• (4) [Repealed, 2023, c. 26, s. 320]

44 [Repealed, 2023, c. 26, s. 321]

45 [Repealed before coming into force, 2008, c. 20, s. 3]

Institution of Proceedings in Canada

Marginal note:Claims

• 46 (1) If a contract for the carriage of goods by water 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, if

  • (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

DIVISION 1International Conventions

Interpretation

Marginal note:Definitions

• 47 (1) The following definitions apply in this Division.

  Bunkers Convention

  Bunkers Convention means the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, concluded at London on March 23, 2001. (Convention sur les hydrocarbures de soute)

  Civil Liability Convention

  Civil Liability Convention means the International Convention on Civil Liability for Oil Pollution Damage, 1992, concluded at London on November 27, 1992, Article V of which was amended by the Resolution adopted by the Legal Committee of the International Maritime Organization on October 18, 2000. (Convention sur la responsabilité civile)

  discharge

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

  Fund Convention

  Fund Convention means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, concluded at London on November 27, 1992, Article 4 of which was amended by the Resolution adopted by the Legal Committee of the International Maritime Organization on October 18, 2000. (Convention sur le Fonds international)

  Hazardous and Noxious Substances Convention

  Hazardous and Noxious Substances Convention means 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. (Convention sur les substances nocives et potentiellement dangereuses)

  HNS Fund

  HNS Fund means the International Hazardous and Noxious Substances Fund established by Article 13 of the Hazardous and Noxious Substances Convention. (Fonds SNPD)

  in bulk

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

  International Fund

  International Fund means the International Oil Pollution Compensation Fund, 1992 established by Article 2 of the Fund Convention. (Fonds international)

  owner

  owner

  • (a) in relation to the Civil Liability Convention, has the same meaning as in Article I of that Convention;

  • (b) in relation to the Fund Convention, has the same meaning as in Article I of the Civil Liability Convention and as shipowner within the meaning of the Fund Convention;

  • (c) in relation to the Supplementary Fund Protocol, has the same meaning as in Article I of the Civil Liability Convention; and

  • (d) in relation to the Bunkers Convention, has the same meaning as the definition Shipowner in Article 1 of that Convention. (Version anglaise seulement)

  Supplementary Fund

  Supplementary Fund means the International Oil Pollution Compensation Supplementary Fund, 2003 established by Article 2 of the Supplementary Fund Protocol. (Fonds complémentaire)

  Supplementary Fund Protocol

  Supplementary Fund Protocol means the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, concluded at London on May 16, 2003. (Protocole portant création d’un Fonds complémentaire)

• Marginal note:Words and expressions defined

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

  • (a) Article I of the Civil Liability Convention;

  • (b) Article 1 of the Fund Convention;

  • (c) Article 1 of the Supplementary Fund Protocol;

  • (d) Article 1 of the Bunkers Convention; and

  • (e) Article 1 of the Hazardous and Noxious Substances Convention.

• Marginal note:Inconsistency

  (3) In the event of an inconsistency between this section and sections 48 to 74.4 and 79 to 90 and the Civil Liability Convention, the Fund Convention, the Supplementary Fund Protocol, the Bunkers Convention or the Hazardous and Noxious Substances Convention, those sections prevail to the extent of the inconsistency.

Civil Liability Convention

Marginal note:Force of law

48 Articles I to XI, XII bis and 15 of the Civil Liability Convention — that are set out in Schedule 5 — have the force of law in Canada.

Marginal note:Contracting State

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

• Marginal note:Appropriate authority

  (2) For the purposes of the application of Article VII of that Convention, the Minister is the appropriate authority for Canada.

Marginal note:Schedule 5 — limits amendment

50 The Governor in Council may, by regulation, amend Schedule 5 to implement an amendment — to the limits of liability that are specified in paragraph 1 of Article V of the Civil Liability Convention — that is made in accordance with Article 15 of that Convention.

Marginal note:Liability for pollution and related costs

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

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

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

    • (i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or

    • (ii) any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

• Marginal note:Liability — grave and imminent threat of pollution damage

  (2) For the purposes of subsection (1), with respect to the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person, including in respect of preventive measures referred to in paragraph (1)(b), the owner of a ship is liable only for the costs and expenses related to an occurrence — or series of occurrences having the same origin — that causes pollution damage or creates a grave and imminent threat of causing such damage.

• Marginal note:Liability — fishing, hunting, trapping and harvesting

  (3) For greater certainty, for the purposes of Article III of the Civil Liability Convention, the liability of the owner of a ship includes economic loss in relation to the exercise of fishing, hunting, trapping or harvesting rights recognized and affirmed by section 35 of the Constitution Act, 1982 suffered by an Indigenous group, community or people that holds those rights or suffered by a member of such a group, community or people.

Marginal note:Admiralty Court’s jurisdiction — limitation fund

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

• Marginal note:Right to assert limitation defence

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

• Marginal note:Stay of proceedings

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

Marginal note:Admiralty Court’s powers

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

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

  • (a.1) permitting that person to reduce the amount that they are required to pay to the fund by up to an amount equal to the sum of any amounts paid to a claimant before the constitution of the fund; and

  • (b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within the time limits set out in Article VIII of that Convention, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs.

• Marginal note:Admiralty Court may postpone distribution

  (2) In providing for the distribution of a fund under paragraph (1)(a) in relation to any liability, the Admiralty Court may, having regard to any claim that may subsequently be established before a court, tribunal or other authority outside Canada in respect of that liability, postpone the distribution of any part of the fund that it considers appropriate.

• Marginal note:Procedural matters

  (3) The Admiralty Court may

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

  • (b) determine what form of guarantee it considers to be adequate for the purposes of paragraph 3 of Article V of the Civil Liability Convention.

Marginal note:Public notice

• 54 (1) The person constituting the fund must, as soon as feasible, give notice of the fund’s constitution in

  • (a) the Canada Gazette;

  • (b) a newspaper in general circulation in the region where the incident occurred; and

  • (c) any other appropriate manner in the communities potentially affected by the incident.

• Marginal note:Accessibility

  (1.1) Notices given under paragraphs (1)(b) and (c) are to be made accessible to the public for a period of at least 30 days.

• Marginal note:Proof of accessibility

  (2) The person constituting the fund must, within 15 days after the 30th day of the period referred to in subsection (1.1), file evidence in the Admiralty Court that the notices have been made accessible to the public for a period of at least 30 days.

• Marginal note:Court order in case of non-compliance

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

Marginal note:Absence of certificate

• 55 (1) Unless a ship carries a certificate described in Article VII of the Civil Liability Convention issued in accordance with subsection 56(1), the ship must not

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

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

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

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

• Marginal note:Certificate to be produced on request

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

Marginal note:By whom certificate to be issued

• 56 (1) The certificate shall be issued

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

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

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

• Marginal note:Issuance of certificate by Minister

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

• Marginal note:When Minister may refuse certificate

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

• Marginal note:When Minister may revoke certificate

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

Fund Convention

Marginal note:Force of law

57 Articles 1 to 4, 6 to 10, 12 to 15, 36 ter, 29, 33 and 37 of the Fund Convention — that are set out in Schedule 6 — have the force of law in Canada.

Marginal note:Contracting State

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

Marginal note:Schedule 6 — limits amendment

59 The Governor in Council may, by regulation, amend Schedule 6 to implement an amendment — to the limits of liability that are specified in paragraph 4 of Article 4 of the Fund Convention — that is made in accordance with Article 33 of that Convention.

Meaning of associated persons

60 For the purposes of the application of the Fund Convention, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be associated persons within the meaning of Associated person in paragraph 2(b) of Article 10 of that Convention.

Marginal note:Legal capacity of International Fund

61 For the purposes of the rights and obligations referred to in section 62, the International Fund has the capacity, rights and obligations of a natural person, and the Director of the International Fund is its legal representative.

Marginal note:International Fund to be party to legal proceedings

• 62 (1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51 or Article III of the Civil Liability Convention,

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

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

• Marginal note:Method of service on International Fund

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

Supplementary Fund Protocol

Marginal note:Force of law

63 Articles 1 to 15, 18, 20, 24, 25 and 29 of the Supplementary Fund Protocol — that are set out in Schedule 7 — have the force of law in Canada.

Marginal note:Contracting State

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

Marginal note:Schedule 7 — limits amendment

65 The Governor in Council may, by regulation, amend Schedule 7 to implement an amendment — to the limits of liability that are in Article 4 of the Supplementary Fund Protocol — that is made in accordance with Article 24 of that Protocol.

Meaning of associated persons

66 For the purposes of the application of the Supplementary Fund Protocol, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be associated persons within the meaning of Associated person in paragraph 2(b) of Article 10 of the Fund Convention.

Marginal note:Legal capacity of Supplementary Fund

67 For the purposes of the rights and obligations referred to in section 68, the Supplementary Fund has the capacity, rights and obligations of a natural person, and the Director of the Supplementary Fund is its legal representative.

Marginal note:Supplementary Fund to be party to legal proceedings

• 68 (1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51 or Article III of the Civil Liability Convention,

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

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

• Marginal note:Method of service on Supplementary Fund

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

Bunkers Convention

Marginal note:Extended meaning of expressions

68.1 For the purposes of sections 69 to 74 and Articles 1 to 10 of the Bunkers Convention, the definition ship in Article 1 of the Bunkers Convention includes non-seagoing vessels and non-seaborne craft.

Marginal note:Force of law

69 Articles 1 to 10 of the Bunkers Convention — that are set out in Schedule 8 — have the force of law in Canada.

Marginal note:State Party

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

• Marginal note:Appropriate authority

  (2) For the purposes of the application of Article 7 of the Bunkers Convention, the Minister is the appropriate authority for Canada.

Marginal note:Liability for pollution and related costs

• 71 (1) The liability of the owner of a ship in relation to preventive measures, for the purposes of the Bunkers Convention, also includes

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

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

    • (i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or

    • (ii) any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

• Marginal note:Liability — grave and imminent threat of pollution damage

  (2) For the purposes of subsection (1), with respect to the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person, including in respect of preventive measures referred to in paragraph (1)(b), the owner of a ship is liable only for the costs and expenses related to an occurrence — or series of occurrences having the same origin — that causes pollution damage or creates a grave and imminent threat of causing such damage.

• Marginal note:Liability — fishing, hunting, trapping and harvesting

  (3) For greater certainty, for the purposes of Article 3 of the Bunkers Convention, the liability of the owner of a ship includes economic loss in relation to the exercise of fishing, hunting, trapping or harvesting rights recognized and affirmed by section 35 of the Constitution Act, 1982 suffered by an Indigenous group, community or people that holds those rights or suffered by a member of such a group, community or people.

Marginal note:Application of Division 1 of Part 3

72 Division 1 of Part 3 applies to claims arising under the Bunkers Convention.

Marginal note:Absence of certificate

• 73 (1) Unless a ship carries a certificate described in Article 7 of the Bunkers Convention issued in accordance with subsection 74(1), the ship must not

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

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

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

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

• Marginal note:Certificate to be produced on request

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

Marginal note:By whom certificate to be issued

• 74 (1) The certificate shall be issued

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

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

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

• Marginal note:Designation by Minister

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

• Marginal note:Issuance of certificate by Minister

  (3) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Bunkers Convention, the Minister shall issue the certificate to the owner of the ship, if he or she is satisfied that a contract of insurance or other security satisfying the requirements of Article 7 of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

• Marginal note:When Minister may refuse certificate

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

• Marginal note:When Minister may revoke certificate

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

Marginal note:State Party

74.2 For the purposes of the application of the Hazardous and Noxious Substances Convention, Canada is a State Party.

Meaning of associated persons

74.3 For the purposes of the application of the Hazardous and Noxious Substances Convention, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be associated persons within the meaning of associated person in paragraph 6 of Article 16 of that Convention.

Meaning of receiver

• 74.4 (1) For the purposes of subsection (2), receiver has the meaning assigned by paragraph 4(a) of Article 1 of the Hazardous and Noxious Substances Convention.

• Marginal note:Obligation

  (2) Receivers shall file information returns with the Minister, in accordance with the regulations, respecting quantities of contributing cargo received, except oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention.

• Marginal note:Regulations

  (3) The Governor in Council may make regulations respecting information returns for the purposes of subsection (2).

• Marginal note:Communication to Secretary-General of IMO

  (4) The Minister shall communicate to the Secretary-General of the International Maritime Organization, in accordance with Article 45 of the Hazardous and Noxious Substances Convention, the information referred to in that Article.

• Marginal note:Communication to Director of HNS Fund

  (5) The Minister shall communicate to the Director of the HNS Fund, in accordance with Article 21 of the Hazardous and Noxious Substances Convention, the information referred to in that Article except information that relates to oils described in paragraph 5(a)(i) of Article 1 of that Convention.

• Marginal note:Minister’s powers

  (6) The Minister may, for the purposes of subsection (2), (4) or (5),

  • (a) at any reasonable time, enter a place in which he or she has reasonable grounds to believe there are any records, books of account, accounts, vouchers or other documents relating to information referred to in Article 21 or 45 of the Hazardous and Noxious Substances Convention;

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

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

• Marginal note:No obstruction or false statements

  (7) No person shall obstruct or hinder the Minister in the exercise of any powers under subsection (6) or knowingly make a false or misleading statement, either orally or in writing, to the Minister while he or she is exercising those powers.

• Marginal note:Warrant required to enter dwelling place

  (8) A dwelling place may not be entered under subsection (6) unless it is entered with the occupant’s consent or under the authority of a warrant issued under subsection (9).

• Marginal note:Authority to issue warrant

  (9) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing the Minister to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling place is a place referred to in paragraph (6)(a);

  • (b) entry to the dwelling place is necessary for the purposes of subsection (2), (4) or (5); and

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

DIVISION 2Liability Not Covered by Division 1

Interpretation

Marginal note:Definitions

75 The following definitions apply in this Division.

discharge

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

oil

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

oil pollution damage

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. (dommages dus à la pollution par les hydrocarbures)

owner

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

pollutant

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

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

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

pollution damage

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. (dommages dus à la pollution)

ship

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

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

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

Application

Marginal note:Geographical application

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

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

• (b) in Canada’s exclusive economic zone.

Marginal note:Liability for pollution and related costs

• 77 (1) The owner of a ship is liable

  • (a) for oil pollution damage from the ship, including economic loss in relation to the exercise of fishing, hunting, trapping or harvesting rights recognized and affirmed by section 35 of the Constitution Act, 1982 suffered by an Indigenous group, community or people that holds those rights or suffered by a member of such a group, community or people;

  • (b) for the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of section 165 of the Canada Shipping Act, 2001 or any other person in Canada in respect of measures taken to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and

  • (c) in relation to pollutants, for the costs and expenses incurred by

    • (i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or

    • (ii) any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

• Marginal note:Liability — grave and imminent threat of pollution damage

  (1.1) For the purposes of subsection (1), with respect to the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person, including in respect of preventive measures referred to in paragraph (1)(c), the owner of a ship is liable only for the costs and expenses related to an occurrence — or series of occurrences having the same origin — that causes pollution damage or creates a grave and imminent threat of causing such damage.

• Marginal note:Words and expressions defined

  (1.2) For the purposes of subsection (1.1), words and expressions used in that subsection that are not defined have the same meaning as in the Civil Liability Convention as defined in subsection 47(1).

• 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 undertaken or to be undertaken.

• Marginal note:Strict liability subject to certain defences

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

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

  • (b) was wholly caused by an act or omission of a third party with intent to cause damage; or

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

• Marginal note:Owner’s rights against third parties

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

• Marginal note:Owner’s own claim for costs and expenses

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

• 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 occurs, within the earlier of

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

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

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

Marginal note:Application of Part 3

78 Part 3 applies to any claim referred to in section 77.

DIVISION 3General Provisions

Admiralty Court

Marginal note:Jurisdiction

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

• Marginal note:Jurisdiction may be exercised in rem

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

• Marginal note:Exempt ships and cargoes

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

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

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

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

Registration of Foreign Judgments

Marginal note:Definitions

80 The following definitions apply in this section and in sections 81 to 89.

foreign judgment

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

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

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

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

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

judgment creditor

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

judgment debtor

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

Marginal note:Application

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

Marginal note:Registration of foreign judgment

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

• Marginal note:Court may register foreign judgment

  (2) The Admiralty Court may, subject to subsections (3) and (4) and section 85, order the registration of the foreign judgment if it is satisfied

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

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

• Marginal note:If judgment debtor appears

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

  • (a) the foreign judgment has been fully satisfied;

  • (b) the foreign court acted without jurisdiction;

  • (c) the foreign judgment was obtained by fraud; or

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

• Marginal note:If judgment partly satisfied

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

Marginal note:Pre-registration interest

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

Marginal note:Costs

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

Marginal note:Conversion to Canadian currency

• 85 (1) A foreign judgment expressed in a currency other than Canadian currency may not be registered under section 82 until the Admiralty Court determines the equivalent amount in Canadian currency on the basis of the rate of exchange prevailing on the day on which the foreign judgment is rendered, as that rate is ascertained from any bank in Canada, and, for the purpose of making that determination, that Court may require the judgment creditor to provide any evidence of the applicable rate of exchange that that Court considers necessary.

• Marginal note:Registered judgment to be in Canadian currency

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

Marginal note:Effect of registration

86 Subject to section 87, a foreign judgment registered under section 82 has, as of the date of registration, the same force and effect as a judgment of the Admiralty Court’s rendered on that date.

Marginal note:Service of notice of registration

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

Marginal note:Application to set aside registration

• 88 (1) At any time after a foreign judgment is registered under section 82, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the registration of the judgment set aside on any of the grounds set out in subsection (2).

• Marginal note:Grounds for setting aside registration

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

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

  • (b) the foreign court acted without jurisdiction;

  • (c) the foreign judgment was obtained by fraud;

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

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

  • (f) an error was made in the conversion of the foreign judgment to Canadian currency under section 85;

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

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

• Marginal note:Reduction of registered amount

  (3) If the Admiralty Court sets aside the registration of a foreign judgment on the ground that it has been partly satisfied, or on the ground referred to in paragraph (2)(f) or (g), it shall order the foreign judgment to be registered in the reduced amount.

Marginal note:Application for stay of execution

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

• Marginal note:Grounds exclusive

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

Regulations

Marginal note:Governor in Council

90 The Governor in Council may make regulations

• (a) imposing a fee for the issuance of a certificate under section 56 or 74;

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

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

• (d) extending the application of the Bunkers Convention, within the meaning of subsection 47(1), to ships or classes of ships excluded from the application of that Convention and specifying the terms and conditions that are applicable to those ships or classes of ships under Article 4 of that Convention;

• (e) providing that Article 7 of the Bunkers Convention, within the meaning of subsection 47(1), does not apply to ships or classes of ships operating exclusively within the area referred to in Article 2(a)(i) of that Convention;

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

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

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

PART 7Ship-source Oil Pollution Fund

Interpretation

Marginal note:Definitions

• 91 (1) The following definitions apply in this Part.

  discharge

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

  in bulk

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

  oil

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

  oil pollution damage

  oil pollution damage, in relation to a ship, means loss or damage outside the ship caused by contamination resulting from the discharge of oil from the ship. (dommages dus à la pollution par les hydrocarbures)

  owner

  owner

  • (a) in relation to a ship subject to the Civil Liability Convention, has the same meaning as in Article I of that Convention;

  • (b) in relation to a ship subject to the Bunkers Convention, has the same meaning as the definition Shipowner in Article 1 of that Convention; and

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

  receiver

  receiver means a receiver as defined in paragraph 4(a) of Article 1 of the Hazardous and Noxious Substances Convention. (réceptionnaire)

  ship

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

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

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

  Ship-source Oil Pollution Fund

  Ship-source Oil Pollution Fund means the Ship-source Oil Pollution Fund continued by section 92. (Caisse d’indemnisation)

  significant incident

  significant incident means a discharge of oil that, due to its severity, size or location and to its impact — actual or potential — on the environment, requires extraordinary resources to respond to it. (événement significatif)

• Marginal note:Other definitions

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

Ship-source Oil Pollution Fund

Marginal note:Ship-source Oil Pollution Fund continued

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

• Marginal note:Credits

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

  • (a) all payments received under sections 114.1 and 114.2 and amounts recovered under section 115;

  • (b) interest computed in accordance with section 93;

  • (b.1) the amount of every sum credited to that Fund under section 93.1 or subsection 111(1) or 111.1(1), (2) or (3);

  • (c) any amounts recovered by the Administrator under paragraph 106(3)(c) or 106.3(5)(b);

  • (c.1) any amounts received by the Administrator further to the notice given under subsection 106.02(3) or paragraph 106.04(1)(b) or recovered under section 106.05;

  • (d) any amounts received by the Administrator further to the notice given under subsection 106.4(3) or paragraph 106.6(1)(b) or recovered under section 106.7; and

  • (e) interest computed in accordance with section 111.2.

• Marginal note:Charges

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

  • (a) an amount equal to every amount required to repay, in accordance with any terms and conditions specified by the Minister of Finance, an amount charged to the Consolidated Revenue Fund under section 93.1;

  • (a.1) all amounts that are directed to be paid under paragraph 106(3)(a) or 106.04(1)(c), subsection 106.3(4) or section 117 or under a settlement;

  • (a.2) all amounts that are charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2);

  • (b) all amounts for which the Administrator is liable under subsection 117.2(4);

  • (c) all interest to be paid under section 116;

  • (d) every amount paid out of the Consolidated Revenue Fund under subsection 98(1.2); and

  • (e) [Repealed, 2023, c. 26, s. 332]

  • (f) the amount of any judgment and any costs awarded against the Ship-source Oil Pollution Fund in litigation.

Marginal note:Interest to be credited to Fund

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

Marginal note:Consolidated Revenue Fund

93.1 If the amount to the credit of the Ship-source Oil Pollution Fund is insufficient to pay any amount that is charged to that Fund under any of paragraphs 92(3)(a) to (f), the Minister of Finance may, subject to any terms and conditions that he or she considers appropriate, direct that a sum equal to the amount required to be paid be charged to the Consolidated Revenue Fund and credited to the Ship-source Oil Pollution Fund.

Administrator and Deputy Administrator

Marginal note:Appointment of Administrator

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

• Marginal note:Reappointment of Administrator

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

• Marginal note:Continuation in office

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

Marginal note:Deputy Administrator

• 95 (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.

• Marginal note:Reappointment of Deputy Administrator

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

Marginal note:Resignation

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

Marginal note:Conflict of interest

• 97 (1) The Administrator or Deputy Administrator shall not accept or hold any office or employment, or carry on any activity, that is inconsistent with his or her powers, duties and functions under this Part.

• Marginal note:Effect of contravention

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

Marginal note:Remuneration

• 98 (1) The Administrator and the Deputy Administrator are to be paid, for the exercise of their powers and the performance of their duties and functions, the remuneration fixed by the Governor in Council.

• Marginal note:Travelling, living and other expenses

  (1.1) The Administrator and the Deputy Administrator are to be paid, in accordance with Treasury Board directives, reasonable travel, living and other expenses incurred in exercising their powers or performing their duties and functions under this Part while absent from their ordinary place of work.

• Marginal note:Payment out of Consolidated Revenue Fund

  (1.2) On the direction of the Minister of Finance, the remuneration and expenses referred to in subsections (1) and (1.1) and all other costs and expenses incurred by the Administrator and the Deputy Administrator in exercising their powers and performing their duties and functions under this Part are to be paid out of the Consolidated Revenue Fund and charged to the Ship-source Oil Pollution Fund as provided for by paragraph 92(3)(d).

• Marginal note:Taxation

  (2) The Admiralty Court’s assessment officers may, at the Minister of Justice’s request, tax any account for costs and expenses, other than expenses referred to in subsection (1.1), incurred by the Administrator and the Deputy Administrator in exercising their powers or performing their duties and functions as if they were acting for Her Majesty in proceedings in that Court.

Marginal note:Deputy Administrator’s duties and functions

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

• Marginal note:Administrator’s absence or incapacity

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

Marginal note:Professional and technical assistance

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

Liability of Ship-source Oil Pollution Fund

Process for Claims

Marginal note:Liability of Ship-source Oil Pollution Fund

• 101 (1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable in relation to oil for the matters referred to in sections 51, 71 and 77, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in respect of any kind of loss, damage, costs or expenses — including economic loss caused by oil pollution suffered by persons whose property has not been polluted — if

  • (a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship or, in the case of a ship within the meaning of Article I of the Civil Liability Convention, from the International Fund and the Supplementary Fund, and those steps have been unsuccessful;

  • (b) the owner of a ship is not liable by reason of any of the defences described in subsection 77(3), Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention and neither the International Fund nor the Supplementary Fund are liable;

  • (c) the claim exceeds

    • (i) in the case of a ship within the meaning of Article I of the Civil Liability Convention, the owner’s maximum liability under that Convention to the extent that the excess is not recoverable from the International Fund or the Supplementary Fund, and

    • (ii) in the case of any other ship, the owner’s maximum liability under Part 3;

  • (d) the owner is financially incapable of meeting their obligations under section 51 and Article III of the Civil Liability Convention, to the extent that the obligation is not recoverable from the International Fund or the Supplementary Fund;

  • (e) the owner is financially incapable of meeting their obligations under section 71 and Article 3 of the Bunkers Convention;

  • (f) the owner is financially incapable of meeting their obligations under section 77;

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

  • (h) the Administrator is a party to a settlement under section 109.

• Marginal note:Additional liability of Ship-source Oil Pollution Fund

  (1.1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person in respect of measures taken under subsection 180(1) of the Canada Shipping Act, 2001 with respect to oil, or for loss or damage caused by those measures, for which neither the owner of a ship, the International Fund nor the Supplementary Fund is liable by reason of the fact that the occurrence or series of occurrences for which those costs and expenses were incurred did not create a grave and imminent threat of causing oil pollution damage.

• Marginal note:Exception — drilling activities

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

• Marginal note:Exception — floating storage units

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

Marginal note:Action by Administrator

• 102 (1) If there is an occurrence that gives rise to the liability of an owner of a ship under section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention,

  • (a) the Administrator may, either before or after receiving a claim under section 103 or 106.1, commence an action in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court; and

  • (b) subject to subsection (3), the Administrator is entitled in any such action to claim security in an amount not less than the owner’s maximum aggregate liability determined in accordance with section 71 or 77, or Article V of the Civil Liability Convention.

• Marginal note:Subrogation

  (2) The Administrator may continue the action only if he or she has become subrogated to the rights of the claimant under paragraph 106(3)(c) or 106.3(5)(b).

• Marginal note:Entitlement to claim security

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

  • (a) in the case of a ship within the meaning of Article I of the Civil Liability Convention, a fund has been constituted under subsection 52(2); and

  • (b) in the case of any other ship, a fund has been constituted under Article 11 of the Convention as defined in section 24.

Marginal note:Claims filed with Administrator

• 103 (1) In addition to any right against the Ship-source Oil Pollution Fund under section 101, a person may file a claim with the Administrator for the loss, damage, costs or expenses if the person has suffered loss or damage, or incurred costs or expenses, referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention in respect of any kind of loss, damage, costs or expenses arising out of actual or anticipated oil pollution damage, including economic loss caused by oil pollution suffered by persons whose property has not been polluted.

• Marginal note:Claims filed with Administrator — costs or expenses under subsection 101(1.1)

  (1.1) In addition to any right against the Ship-source Oil Pollution Fund under subsection 101(1.1), if the Minister of Fisheries and Oceans or any other person has suffered loss or damage, or incurred costs or expenses, referred to in that subsection, that Minister or that person may file a claim with the Administrator for the loss, damage, costs or expenses.

• Marginal note:Claims filed with Administrator — future losses

  (1.2) A claim arising out of oil pollution damage may be filed with the Administrator for

  • (a) future loss of profit or income and future costs or expenses for the mitigation of that loss by a person who expects to suffer loss or incur costs or expenses;

  • (b) future economic loss related to fishing, hunting, trapping or harvesting for personal or household use and future costs or expenses for the mitigation of that loss by an individual who expects to suffer loss or incur costs or expenses;

  • (c) future economic loss related to the exercise of fishing, hunting, trapping or harvesting rights recognized and affirmed by section 35 of the Constitution Act, 1982 and future costs or expenses for the mitigation of that loss by a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds those rights if that group, community or people expects to suffer loss or incur costs or expenses; and

  • (d) costs or expenses for meeting the conditions imposed by the Administrator under subsection 105(1.2) by a person referred to in paragraph (a), an individual referred to in (b) or a council, government or other entity referred to in paragraph (c) who expects to incur those costs or expenses.

• Marginal note:Period covered by the claim

  (1.3) The claim filed under subsection (1.2) must specify the period covered by the claim, which, for greater certainty, may extend beyond the periods referred to in subsection (2) during which the claim must be filed.

• Marginal note:Limitation or prescription period

  (2) A claim referred to in any of subsections (1) to (1.2) must be made

  • (a) if oil pollution damage occurs, within two years after the day on which that damage occurs and five years after the incident that causes that damage; or

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

• Marginal note:Multiple occurrences

  (2.1) For the purposes of subsection (2), if an incident as a result of which oil pollution damage occurs or in respect of which oil pollution damage is anticipated consists of a series of occurrences, the period of five years referred to in that subsection begins on the day of the first occurrence in that series.

• Marginal note:Exception

  (3) Subsections (1) to (1.2) do not apply to a person in a state other than Canada and subsections (1) and (1.1) do not apply to a response organization referred to in paragraph 51(1)(a), 71(1)(a) or 77(1)(b).

Marginal note:Liability — exception

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

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

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

Marginal note:Administrator’s duties

• 105 (1) On receipt of a claim under subsection 103(1) or (1.1), the Administrator shall investigate and assess it and shall

  • (a) make an offer of compensation to the claimant for whatever portion of it that the Administrator finds to be established; or

  • (b) disallow the claim and notify the claimant of its disallowance in writing.

• Marginal note:Administrators duties — future losses

  (1.1) On receipt of a claim under subsection 103(1.2), the Administrator shall investigate and assess it and shall

  • (a) make an offer of compensation to the claimant for whatever portion of it that the Administrator finds to be established;

  • (b) make an offer of compensation to the claimant on an interim payment schedule for whatever portion of it that the Administrator finds to be established and provide the dates for future payments; or

  • (c) disallow the claim and notify the claimant of its disallowance in writing.

• Marginal note:Conditions

  (1.2) If the Administrator makes an offer of compensation under paragraph (1.1)(a) or (b), the Administrator may impose conditions on the claimant as part of that offer, including a requirement to keep records containing information relating to the claim.

• Marginal note:Administrator’s powers

  (2) For the purpose of investigating and assessing a claim, the Administrator has the powers of a commissioner under Part I of the Inquiries Act.

• Marginal note:Factors to be considered

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

  • (a) whether it is for loss, damage, costs or expenses referred to in subsection 103(1), (1.1) or (1.2), as the case may be; and

  • (b) whether it resulted wholly or partially from

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

    • (ii) the claimant’s negligence.

• Marginal note:Cause of occurrence

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

• Marginal note:When claimant at fault

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

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

  • (b) the claimant’s negligence.

Marginal note:Offer of compensation

• 106 (1) If the Administrator makes an offer of compensation to a claimant under paragraph 105(1)(a), (1.1)(a) or (b), as the case may be, the claimant shall, within 60 days after receiving the offer, notify the Administrator whether they accept or refuse it and, if no notification is received by the Administrator within that period, the claimant is deemed to have refused the offer.

• Marginal note:Appeal to Admiralty Court

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

• Marginal note:Acceptance of offer by claimant

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

  • (a) the Administrator shall direct payment to be made to the claimant of the amount of the offer out of the Ship-source Oil Pollution Fund without delay or according to the payment schedule referred to in paragraph 105(1.1)(b), as the case may be;

  • (b) the claimant is then precluded from pursuing any rights that they may have had against any person in respect of matters referred to in sections 51, 71 and 77, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in relation to the occurrence to which the offer of compensation relates, except that

    • (i) with respect to the acceptance of an offer of compensation made under paragraph 105(1)(a), the claimant may pursue any rights that they may have under subsection 103(1.2) in a single claim, and

    • (ii) with respect to the acceptance of an offer of compensation made under paragraph 105(1.1)(a) or (b), the claimant may pursue any rights that they may have under subsection 103(1) or (1.1) in a single claim;

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

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

Marginal note:Cessation of payments

• 106.01 (1) Despite paragraph 106(3)(a), the Administrator may direct, at any time after the claimant accepts an offer of compensation, that some or all of the payments referred to in paragraph 105(1.1)(b) not be made to the claimant if

  • (a) a condition imposed on the claimant under subsection 105(1.2) is not met;

  • (b) the Administrator has reasonable grounds to believe that the claimant did not take reasonable measures to mitigate the loss for which a claim has been filed under subsection 103(1.2); or

  • (c) the Administrator has reasonable grounds to believe that the claimant’s loss has been mitigated.

• Marginal note:Notice

  (2) If the Administrator directs under subsection (1) that a payment not be made to the claimant, the Administrator must, as soon as feasible, give the claimant notice in writing.

• Marginal note:Appeal to Admiralty Court

  (3) A claimant may, within 60 days after receiving the notice, appeal the decision set out in the notice to the Admiralty Court.

Marginal note:Records — future loss

• 106.02 (1) If the Administrator imposes a condition requiring the claimant to keep records under subsection 105(1.2), the Administrator may, within the following periods, request that the claimant provide the Administrator with the records:

  • (a) in the case of a payment made in accordance with an offer of compensation made under paragraph 105(1.1)(a), the period that ends on the later of

    • (i) one year after the day on which the payment was made, and

    • (ii) three years after the day of the occurrence in respect of which the claimant filed a claim;

  • (b) in the case of payments made in accordance with an offer of compensation made under paragraph 105(1.1)(b) that have ceased under subsection 106.01(1), the period that ends on the later of

    • (i) one year after the day on which the notice was sent by the Administrator under subsection 106.01(2), and

    • (ii) three years after the day of the occurrence in respect of which the claimant filed a claim; or

  • (c) in the case of payments made in accordance with an offer of compensation made under paragraph 105(1.1)(b) that have not ceased, the period that ends on the later of

    • (i) one year after the day on which the final payment was made, and

    • (ii) three years after the day of the occurrence in respect of which the claimant filed a claim.

• Marginal note:Period

  (2) If the Administrator requests records under subsection (1), the claimant must provide them to the Administrator within 30 days beginning on the day on which the claimant receives the request or within any longer period agreed to by the Administrator and the claimant.

• Marginal note:Failure to provide records

  (3) If the claimant does not provide the Administrator with the records within the applicable period, the Administrator may give the claimant a notice that they are required to repay to the Administrator the amount or a portion of the amount of the payment made to them under paragraph 106(3)(a), in the manner and within the period set out in the notice.

Marginal note:Post-payment investigation and reassessment

• 106.03 (1) The Administrator may, within the period referred to in subsection 106.02(1), investigate and reassess any claim under subsection 103(1.2) for which a payment was made under paragraph 106(3)(a).

• Marginal note:Administrator’s powers

  (2) For the purpose of investigating and reassessing a claim, the Administrator has the powers of a commissioner under Part I of the Inquiries Act.

• Marginal note:Factors to be considered

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

  • (a) whether it is for loss, costs or expenses referred to in subsection 103(1.2) that the claimant has suffered or incurred;

  • (b) whether it resulted wholly or partially from

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

    • (ii) the claimant’s negligence;

  • (c) whether it is for loss, costs or expenses for which another claim has been filed;

  • (d) whether the Administrator has reasonable grounds to believe that the claimant did not take reasonable measures to mitigate the loss for which the claim has been filed;

  • (e) whether the claimant’s loss has been mitigated; and

  • (f) whether the conditions imposed on the claimant under subsection 105(1.2), if any, have been met.

Marginal note:Result of investigation and reassessment

• 106.04 (1) As soon as feasible after completing the investigation and reassessment, the Administrator must give the claimant notice that

  • (a) the Administrator will take no further action in respect of whatever portion of the claim was the subject of the investigation and reassessment;

  • (b) the claimant is required to pay to the Administrator the overpayment set out in the notice, in the manner and within the period set out in the notice; or

  • (c) an additional payment, equal to the amount of the loss, costs or expenses suffered or incurred by the claimant minus the sum of any amounts already paid to the claimant, is to be made to the claimant without delay out of the Ship-source Oil Pollution Fund.

• Marginal note:Appeal to Admiralty Court

  (2) A claimant may, within 60 days after receiving a notice under paragraph (1)(b), appeal to the Admiralty Court the requirement to pay the overpayment set out in the notice.

Marginal note:Debts due to His Majesty

106.05 All amounts payable under subsection 106.02(3) and overpayments payable under paragraph 106.04(1)(b) constitute debts due to His Majesty in right of Canada that may be recovered in a court of competent jurisdiction from the person who is required to pay them.

Expedited Process for Small Claims

Marginal note:Expedited claims — small amounts

• 106.1 (1) A person may file a claim with the Administrator under this section if the claim meets the following conditions:

  • (a) the claim is for loss, damage, costs or expenses referred to in subsection 103(1) — other than economic loss referred to in that subsection — or (1.1) suffered or incurred by the claimant;

  • (b) the claim is the first one that the claimant has filed in respect of a given occurrence for loss, damage, costs or expenses referred to in paragraph (a) and does not exceed $35,000 or, if any other amount is fixed by regulations made under paragraph 106.8(b), that amount; and

  • (c) the claim did not result, wholly or partially, from an act done or omitted to be done by the claimant with intent to cause damage or from the claimant’s negligence.

• Marginal note:Contents of claim

  (2) The claim must set out

  • (a) a description of the occurrence that gives rise to the claim, as well as of the loss or damage suffered, or costs or expenses incurred, by the claimant that the claim is for;

  • (b) the amount claimed for the loss, damage, costs and expenses;

  • (c) the claimant’s attestation to

    • (i) the truth of the facts set out in the claim,

    • (ii) their having no reason to believe that the occurrence was not caused by a ship,

    • (iii) their ability to provide the Administrator, on request, with supporting documents in respect of the loss, damage, costs or expenses, and

    • (iv) any other information prescribed by the regulations; and

  • (d) any other information prescribed by the regulations.

• Marginal note:Significant incident — increased claim limit

  (3) If, in the Administrator’s opinion, a discharge of oil from a ship constitutes a significant incident, the Administrator may, by order, specify that the amount set out in paragraph (1)(b) for a claim in respect of that significant incident is $50,000 or, if any other amount is fixed by regulations made under paragraph 106.8(d), that amount. If the Administrator makes the order, then he or she shall ensure that a notice to that effect is made available to the public.

• Marginal note:Limitation or prescription period

  (4) A claim under subsection (1) must be made

  • (a) if oil pollution damage occurs, within one year after the day of the occurrence that causes that damage; or

  • (b) if no oil pollution damage occurs, within one year after the occurrence in respect of which oil pollution damage is anticipated.

• Marginal note:Multiple occurrences

  (5) For the purposes of subsection (4), if an incident as a result of which oil pollution damage occurs or in respect of which oil pollution damage is anticipated consists of a series of occurrences, the one-year period referred to in that subsection is the year after the day of the first occurrence in that series.

• Marginal note:Exception

  (6) Subsection (1) does not apply to a response organization referred to in paragraph 51(1)(a), 71(1)(a) or 77(1)(b) or to a person in a state other than Canada.

Marginal note:Liability — exception

106.2 Section 106.1 does not apply in respect of actual or anticipated oil pollution damage on or in any place referred to in paragraph 104(a) or (b).

Marginal note:Administrator’s duties

• 106.3 (1) Within 60 days beginning on the day of receipt of a claim under subsection 106.1(1), the Administrator shall assess the claim.

• Marginal note:Disallowance of claim

  (2) If the Administrator has reason to suspect that the claim does not meet one or more of the conditions set out in subsection 106.1(1) or does not comply with subsection 106.1(2), the Administrator shall, within the 60-day period, disallow the claim and notify the claimant of its disallowance in writing.

• Marginal note:Disallowed claim — other rights unaffected

  (3) The disallowance of a claim under subsection (2) does not prevent the claimant from exercising their rights under this Act — other than under section 106.1 — in respect of the loss, damage, costs and expenses for which the disallowed claim was filed.

• Marginal note:Payment of claim

  (4) If the Administrator does not have reason to suspect that the claim does not meet one or more of the conditions set out in subsection 106.1(1) or does not comply with subsection 106.1(2), the Administrator shall, within the period referred to in subsection (1), direct payment to be made to the claimant of the amount of the claim out of the Ship-source Oil Pollution Fund.

• Marginal note:Subrogation

  (5) Once the Administrator directs the payment to be made,

  • (a) the claimant is precluded from pursuing any rights — except for economic loss referred to in subsection 103(1) — that they may have had against the Ship-source Oil Pollution Fund or any person in respect of matters referred to in sections 51, 71 and 77, subsections 101(1.1) and 103(1.1), Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in relation to the occurrence to which the payment relates; and

  • (b) the Administrator is, to the extent of the payment to the claimant, subrogated to any of the claimant’s rights for any part of that payment that may be recovered from the owner of the ship, the International Fund, the Supplementary Fund or any other person liable.

• Marginal note:Recovery of amount of payment

  (6) If the Administrator directs a payment to be made under subsection (4), he or she shall take all reasonable measures to recover the part of the payment referred to in paragraph (5)(b) and, for that purpose, may, among other things, commence an action in the Administrator’s or the claimant’s name, commence a claim against the fund of the owner of a ship established under the Civil Liability Convention and enforce any security provided to or enforceable by the claimant.

Marginal note:Supporting documents

• 106.4 (1) If the Administrator directs a payment to be made to a claimant under subsection 106.3(4), the Administrator may, within three years after the day of the occurrence in respect of which the payment was directed to be made, request the claimant to provide the Administrator with the supporting documents referred to in subparagraph 106.1(2)(c)(iii).

• Marginal note:Period

  (2) If the Administrator requests supporting documents under subsection (1), the claimant must provide them to the Administrator within 30 days beginning on the day on which the claimant receives the request or within any longer period agreed to by the Administrator and the claimant.

• Marginal note:Failure to provide supporting documents

  (3) If the claimant does not provide the Administrator with the supporting documents within the applicable period, the Administrator may give the claimant a notice that they are required to repay to the Administrator the amount of the payment made to them under subsection 106.3(4), in the manner and within the period set out in the notice.

Marginal note:Post-payment investigation and reassessment

• 106.5 (1) The Administrator may, within three years after the day of the occurrence in respect of which the claim was made, investigate and reassess any claim for which a payment was made under subsection 106.3(4).

• Marginal note:Administrator’s powers

  (2) For the purpose of investigating and reassessing a claim, the Administrator has the powers of a commissioner under Part I of the Inquiries Act.

• Marginal note:Factors to be considered

  (3) When investigating and reassessing a claim, the Administrator may consider only whether the claim meets the conditions set out in subsection 106.1(1).

Marginal note:Result of investigation and reassessment

• 106.6 (1) As soon as feasible after completing the investigation and reassessment, the Administrator shall give the claimant notice that

  • (a) the Administrator will take no further action in respect of the claimant’s claim; or

  • (b) the claimant is required to pay to the Administrator the overpayment set out in the notice, in the manner and within the period set out in the notice.

• Marginal note:Overpayments

  (2) The following amounts paid under subsection 106.3(4) constitute an overpayment to the claimant:

  • (a) an amount paid in respect of a claim that the Administrator is satisfied was not for loss, damage, costs or expenses referred to in paragraph 106.1(1)(a);

  • (b) an amount that was paid in respect of a claim that the Administrator is satisfied was not the first one that the claimant has filed in respect of a given occurrence for loss, damage, costs or expenses referred to in that paragraph;

  • (c) an amount that was paid in respect of a claim that the Administrator is satisfied resulted from an act done or omitted to be done by the claimant with intent to cause damage or from the claimant’s negligence; and

  • (d) an amount that was paid in respect of a claim, if the Administrator is satisfied on the evidence that the occurrence that gave rise to the claim was not caused by a ship.

• Marginal note:Overpayments — limitation or prescription period exceeded

  (3) The Administrator may, in his or her discretion, determine that an amount paid under subsection 106.3(4) constitutes an overpayment to the claimant if the Administrator is satisfied that the amount was paid in respect of a claim that was not filed within the period set out in subsection 106.1(4).

• Marginal note:Appeal to Admiralty Court

  (4) A claimant may, within 60 days after receiving a notice under paragraph (1)(b), appeal to the Admiralty Court the requirement to pay the overpayment set out in the notice referred to in that paragraph.

Marginal note:Debts due to Her Majesty

106.7 Unless the claimant under subsection 106.1(1) is a minister of the Crown in right of Canada, all amounts and overpayments payable under subsection 106.4(3) or paragraph 106.6(1)(b), respectively, constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction from the person who is required to pay them.

Marginal note:Regulations

106.8 The Governor in Council may make regulations

• (a) respecting claims filed under subsection 106.1(1);

• (b) fixing an amount for the purposes of paragraph 106.1(1)(b);

• (c) prescribing information for the purposes of subparagraph 106.1(2)(c)(iv) or paragraph 106.1(2)(d); and

• (d) fixing an amount for the purposes of subsection 106.1(3).

Marginal note:Definitions

106.9 In sections 106.1 to 106.6, incident and occurrence have the meaning assigned by the definition incident in Article I of the Civil Liability Convention.

107 [Repealed, 2023, c. 26, s. 338]

108 [Repealed, 2023, c. 26, s. 338]

Proceedings Against the Owner of a Ship

Marginal note:Proceedings against owner of ship

• 109 (1) If a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention, except in the case of proceedings based on paragraph 77(1)(c) commenced by the Minister of Fisheries and Oceans in respect of a pollutant other than oil,

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

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

• Marginal note:If Administrator party to settlement

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

Emergency Funds

Marginal note:Request by Minister of Fisheries and Oceans for funds — $10 million

• 110 (1) If, in the opinion of the Minister of Fisheries and Oceans, emergency funds are necessary to respond to a significant incident involving the discharge of oil from a ship, the Minister of Transport may, after consultation with the Administrator, direct the amount of funds requested by the Minister of Fisheries and Oceans, or a lesser amount, to be charged to the Ship-source Oil Pollution Fund to enable the Minister of Fisheries and Oceans to respond to the significant incident, to a maximum of $10 million per fiscal year.

• Marginal note:Additional funds — $50 million

  (2) If the maximum amount has been charged to the Ship-source Oil Pollution Fund under subsection (1) and, in the opinion of the Minister of Fisheries and Oceans, additional emergency funds are necessary to respond to a significant incident in that fiscal year involving the discharge of oil from a ship, the Governor in Council may, on the recommendation of the Minister of Transport made after consultation with the Administrator, issue an order in council directing the additional funds requested by the Minister of Fisheries and Oceans, or a lesser amount, to be charged to the Ship-source Oil Pollution Fund to enable the Minister of Fisheries and Oceans to respond to the significant incident, to a maximum of $50 million per fiscal year.

• Marginal note:Exclusions

  (3) For greater certainty, the Minister of Fisheries and Oceans may not request emergency funds under subsection (1) or (2) for

  • (a) measures taken or to be taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001 in respect only of a discharge of oil by a small vessel that is dilapidated or abandoned; or

  • (b) the carrying out by that Minister of only minor monitoring of measures under paragraph 180(1)(b) of that Act.

• Marginal note:Use of emergency funds

  (4) The Minister of Fisheries and Oceans may use emergency funds only to respond to a significant incident involving the discharge of oil from a ship, including paying third parties. For greater certainty, that Minister may not use such funds for any

  • (a) measures taken or to be taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001 in respect only of a discharge of oil by a small vessel that is dilapidated or abandoned; or

  • (b) measures referred to in subsection 101(1.1).

Marginal note:Reimbursement of amount of emergency funds

• 111 (1) If emergency funds are charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2), the amount of the emergency funds shall be credited to the Ship-source Oil Pollution Fund, out of appropriations for the Department of Fisheries and Oceans under an appropriation Act, within two years after the day on which the oil pollution damage resulting from the significant incident occurs or within any longer period agreed to by the Administrator and the Minister of Fisheries and Oceans.

• Marginal note:Rights unaffected

  (2) Nothing in subsection (1) affects the rights of the Minister of Fisheries and Oceans under sections 51, 71, 77 and 101, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention with respect to loss and damage suffered, and costs and expenses incurred, in respect of the significant incident.

Marginal note:Claim under section 103

• 111.1 (1) If the Minister of Fisheries and Oceans files a claim with the Administrator under section 103 for loss and damage suffered, and costs and expenses incurred, in respect of the significant incident for which emergency funds were charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2), then, despite subsection 111(1), it is only any portion of the emergency funds that is unused at the time of the filing of the claim that is to be credited to the Ship-source Oil Pollution Fund within two years after the day on which the oil pollution damage resulting from the significant incident occurs or within any longer period agreed to by the Administrator and the Minister of Fisheries and Oceans.

• Marginal note:Offer of compensation less than zero

  (2) If the offer of compensation made by the Administrator to the Minister of Fisheries and Oceans under paragraph 105(1)(a) is less than zero, then, unless that Minister appeals the offer under subsection 106(2), an amount equal to the amount of the offer is to be credited to the Ship-source Oil Pollution Fund, out of appropriations for the Department of Fisheries and Oceans under an appropriation Act, within six months after the day on which that Minister receives the offer or within any longer period agreed to by the Administrator and that Minister.

• Marginal note:Offer of compensation refused

  (3) If the Minister of Fisheries and Oceans refuses the offer of compensation made under paragraph 105(1)(a), then, as soon as feasible after that Minister refuses the offer, an amount equal to the amount of the emergency funds charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2) is to be credited to the Ship-source Oil Pollution Fund, out of appropriations for the Department of Fisheries and Oceans under an appropriation Act, less any unused portion of the emergency funds credited to the Ship-source Oil Pollution Fund under subsection (1).

• Marginal note:Definition of offer of compensation

  (4) If emergency funds are charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2), then, for the purposes of sections 105, 106 and this section, offer of compensation means, with respect to the Minister of Fisheries and Oceans, the amount determined in accordance with the formula

  A – (B – C)

  where

  A

  is the portion of the claim that the Administrator finds to be established under subsection 105(1);

  B

  is the amount of emergency funds charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2); and

  C

  is the amount of any unused portion of emergency funds credited to the Ship-source Oil Pollution Fund under subsection (1).

Marginal note:Interest

111.2 Interest accrues, at a rate determined in accordance with regulations made under paragraph 155.1(6)(a) of the Financial Administration Act, beginning on the day on which the emergency funds were charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2), on any portion of those funds that are required to be credited to the Ship-source Oil Pollution Fund under subsection 111(1) or 111.1(1) or (2) and have not been so credited within the time within which they are required to be so credited under that subsection.

Marginal note:Reports

111.3 On request by the Minister of Transport, the Minister of Fisheries and Oceans shall provide the Minister of Transport and the Administrator with information about costs and expenses incurred with emergency funds charged to the Ship-source Oil Pollution Fund under subsection 110(1) or (2).

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

Marginal note:Definitions

112 The definitions in this section apply in sections 113, 114.1, 117.1 and 117.3.

contributing oil

contributing oil has the same meaning as in paragraph 3 of Article 1 of the Fund Convention. (hydrocarbures donnant lieu à contribution)

non-persistent oil

non-persistent oil means the oils that are referred to in paragraph 1(a)(ii) of Article 19 of the Hazardous and Noxious Substances Convention. (hydrocarbures non persistants)

Marginal note:Amount of levy

• 113 (1) The levy is 52.38 cents in the year ending on March 31, 2019 in respect of each metric ton of contributing oil or non-persistent oil received or exported, as the case may be, in bulk as cargo.

• Marginal note:Annual adjustment of levy

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

  • (a) the levy that would have been payable in that following year if no adjustment had been made under this section with respect to that following year

  by

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

• Marginal note:Consumer Price Index

  (3) For the purpose of this section,

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

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

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

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

• Marginal note:Adjusted levy to be published annually

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

Marginal note:Imposition and discontinuation of levy

• 114 (1) The Minister, after consultation with the Minister of Fisheries and Oceans, may, by order, impose, discontinue or re-impose the levy referred to in section 113, indefinitely or until a time specified in the order.

• Marginal note:Contents of order

  (1.1) An order imposing or re-imposing the levy shall set out

  • (a) the day by which an amount equal to the amount of the levy is to be paid in the year in which the levy is imposed or re-imposed; and

  • (b) in respect of each subsequent year — if any — for which the levy is imposed or re-imposed, a reference date for the purposes of the levy in that year.

• Marginal note:Reference date

  (1.2) In any year referred to in paragraph (1.1)(b), the day by which an amount equal to the amount of the levy is to be paid is the 60th day after the reference date, or any other day after the reference date that is specified in the order imposing or re-imposing the levy.

• Marginal note:Annual adjustment of levy unaffected

  (2) The discontinuation of the levy under subsection (1) does not affect the operation of section 113.

Marginal note:Amount of levy — general rules

• 114.1 (1) For the purposes of paragraphs (2)(a) to (d), the amount to be paid under those paragraphs in respect of the levy for a given year is determined by the following rules:

  • (a) in the year in which the levy is imposed or re-imposed by order made under subsection 114(1),

    • (i) the number of metric tons of oil is the number that was required to be reported in the most recent information return that, on the day on which the order is made, was required to be filed under section 117.1, and

    • (ii) the levy referred to in subsection 113(1), as adjusted under subsection 113(2), is the levy that is in effect on the day on which the order is made; and

  • (b) in any subsequent year for which the levy is imposed or re-imposed by the order,

    • (i) the number of metric tons of oil is the number that was required to be reported in the most recent information return that, on the reference date set out in the order for that year, was required to be filed under section 117.1, and

    • (ii) the levy referred to in subsection 113(1), as adjusted under subsection 113(2), is the levy that is in effect on the reference date set out in the order for that year.

• Marginal note:Obligation to pay

  (2) If a levy determined in accordance with section 113 is imposed or re-imposed by an order made under subsection 114(1), then the following persons shall pay to the Receiver General an amount equal to the amount of the levy:

  • (a) every person who is referred to in Article 10 of the Fund Convention;

  • (b) every person who is a receiver and receives, in a calendar year, more than 20 000 metric tons — or, if any lesser quantity is fixed by regulations made under paragraph 125(b), that quantity — of non-persistent oil in bulk as cargo;

  • (c) every person who exports, in a calendar year, more than 150 000 metric tons — or, if any lesser quantity is fixed by regulations made under paragraph 125(b), that quantity — of contributing oil in bulk as cargo; and

  • (d) every person who exports, in a calendar year, more than 20 000 metric tons — or, if any lesser quantity is fixed by regulations made under paragraph 125(b), that quantity — of non-persistent oil in bulk as cargo.

• Marginal note:Definition of person

  (3) In subsection (2), person includes two or more persons who are associated persons.

• Marginal note:Definition of associated persons

  (4) In subsection (3), associated persons means

  • (a) persons who are deemed to be associated persons under section 60, in the case of persons who are referred to in Article 10 of the Fund Convention;

  • (b) persons who are deemed to be associated persons under section 74.3, in the case of persons who are receivers; and

  • (c) persons each of whom is an affiliate of the other as defined in section 2 of the Canada Business Corporations Act, in the case of persons who export.

• Marginal note:Exporter — agent or mandatary

  (5) For the purposes of paragraph (2)(d), if the person who exports the oil acts as an agent or mandatary for another person who is in Canada and the agent or mandatary discloses the principal or mandator to the Administrator, then the principal or mandator is deemed to be the exporter.

• Marginal note:Exception — receiver

  (6) No amount is payable by a person referred to in paragraph (2)(b) in respect of a shipment of non-persistent oil in bulk as cargo in respect of which an amount will be payable by a person referred to in paragraph (2)(d).

Marginal note:Additional levy

• 114.2 (1) If an amount is charged to the Consolidated Revenue Fund under section 93.1, the Minister may, by order, impose an additional levy — whether or not he or she has made an order under subsection 114(1) imposing or re-imposing a levy — that the Minister specifies in the order on every person referred to in paragraphs 114.1(2)(a) to (d), in which case each of those persons shall pay to the Receiver General, in accordance with the order, an amount equal to the amount of the additional levy.

• Marginal note:Revocation

  (2) If such an order is made, the Minister shall revoke it as soon as feasible after an amount equal to the amount charged to the Consolidated Revenue Fund under section 93.1 has been credited to the Consolidated Revenue Fund out of amounts standing to the credit of the Ship-source Oil Pollution Fund and the Minister is satisfied that the terms and conditions in relation to the charging of that amount under that section have been met.

Marginal note:Debt due to Her Majesty

115 All amounts payable under sections 114.1 and 114.2 are debts due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction from the person who is required to pay them.

Marginal note:Claimants entitled to interest

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

• Marginal note:Time from which interest accrues

  (2) Interest accrues on a claim under this Part

  • (a) if the claim is based on paragraph 77(1)(a) or on Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention, from the day on which the oil pollution damage occurs; or

  • (b) if the claim is based on subsection 51(1) or 71(1) or paragraph 77(1)(b) or (c), or on Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention as they pertain to preventive measures,

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

    • (ii) in the case of loss or damage, from the day on which the loss or damage occurs.

  • (c) [Repealed, 2023, c. 26, s. 340]

Marginal note:Payments by Canada to International Fund and Supplementary Fund

• 117 (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, 12 and 13 of the Fund Convention and to the Supplementary Fund in accordance with Articles 10 to 13 of the Supplementary Fund Protocol.

• (1.1) to (7) [Repealed, 2018, c. 27, s. 733]

Marginal note:Information returns — receivers

• 117.1 (1) The following persons shall file with the Minister or the Administrator, in accordance with the regulations, information returns in respect of the oil in question:

  • (a) every person who is referred to in Article 10 of the Fund Convention; and

  • (b) every person who is a receiver and receives non-persistent oil in a calendar year in a quantity that is greater than that prescribed by regulations made under paragraph (4)(b).

• Marginal note:Information returns — exporters

  (1.1) The following persons shall file with the Administrator, in accordance with the regulations, information returns in respect of the oil in question:

  • (a) every person who exports, in a calendar year, contributing oil in bulk as cargo in a quantity that is greater than that prescribed by regulations made under paragraph (4)(c); and

  • (b) every person who exports, in a calendar year, non-persistent oil in bulk as cargo in a quantity that is greater than that prescribed by regulations made under paragraph (4)(d).

• Marginal note:Definition of person

  (2) In subsections (1) and (1.1), person includes two or more persons who are associated persons.

• Marginal note:Definition of associated persons

  (3) In subsection (2), associated persons means

  • (a) persons who are deemed to be associated persons under section 60, in the case of persons who are referred to in Article 10 of the Fund Convention;

  • (b) persons who are deemed to be associated persons under section 74.3, in the case of persons who are receivers; and

  • (c) persons each of whom is an affiliate of the other as defined in section 2 of the Canada Business Corporations Act, in the case of persons who export.

• Marginal note:Regulations

  (4) The Governor in Council may make regulations

  • (a) respecting, for the purposes of subsections (1) and (1.1), information returns;

  • (b) respecting, for the purposes of paragraph (1)(b), a quantity of non-persistent oil;

  • (c) respecting, for the purposes of paragraph (1.1)(a), a quantity of contributing oil; and

  • (d) respecting, for the purposes of paragraph (1.1)(b), a quantity of non-persistent oil.

Marginal note:Communication of information

• 117.2 (1) The Administrator shall,

  • (a) in accordance with Article 15 of the Fund Convention, communicate the information referred to in that Article to the Minister and the Director of the International Fund; and

  • (b) in accordance with Article 13 of the Supplementary Fund Protocol, communicate the information referred to in that Article to the Minister and the Director of the Supplementary Fund.

• Marginal note:Communication to Minister

  (2) The Administrator shall communicate to the Minister the information referred to in subsection 74.4(4) that relates to oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention and that is necessary to enable the Minister to discharge his or her obligation under that subsection.

• Marginal note:Communication to Minister and Director of HNS Fund

  (3) The Administrator shall, in accordance with Article 21 of the Hazardous and Noxious Substances Convention, communicate to the Minister and the Director of the HNS Fund the information referred to in that Article that relates to oils described in paragraph 5(a)(i) of Article 1 of that Convention.

• Marginal note:Administrator’s liability

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

Marginal note:Administrator’s powers

• 117.3 (1) The Administrator may,

  • (a) for the purposes of subsection 117.1(1) or 117.2(1), (2) or (3), at any reasonable time, enter a place in which he or she has reasonable grounds to believe there are any records, books of account, accounts, vouchers or other documents relating to information referred to in Article 15 of the Fund Convention, Article 13 of the Supplementary Fund Protocol or Article 21 or 45 of the Hazardous and Noxious Substances Convention, as the case may be;

  • (a.1) for the purposes of subsection 117.1(1.1), at any reasonable time, enter a place in which he or she has reasonable grounds to believe there are any records, books of account, accounts, vouchers or other documents relating to the export of contributing oil or non-persistent oil in bulk as cargo;

  • (b) for the purposes of subsection 117.1(1) or (1.1) or 117.2(1), (2) or (3), examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that he or she has reasonable grounds to believe contains any such information; and

  • (c) for the purposes of subsection 117.1(1) or (1.1) or 117.2(1), (2) or (3), require the owner, occupier or person in charge of the place to give the Administrator all reasonable assistance in connection with the examination and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at the place with the Administrator.

• Marginal note:No obstruction or false statements

  (2) No person shall knowingly obstruct or hinder the Administrator in the exercise of any powers under subsection (1) or knowingly make a false or misleading statement, either orally or in writing, to the Administrator while he or she is exercising those powers.

• Marginal note:Warrant required to enter dwelling place

  (3) A dwelling place may not be entered under subsection (1) unless it is entered with the occupant’s consent or under the authority of a warrant issued under subsection (4).

• Marginal note:Authority to issue warrant

  (4) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing the Administrator to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling place is a place referred to in paragraph (1)(a) or (a.1);

  • (b) entry to the dwelling place is necessary for the purposes of subsection 117.1(1) or (1.1) or 117.2(1), (2) or (3); and

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

Marginal note:Records — filers of information returns

• 118 (1) Every person who is required to file information returns under subsection 117.1(1) or (1.1) shall keep at their place of business in Canada, or at any other place in Canada that is designated by the Minister, in relation to the oil that they are required to file information returns in respect of, records that

  • (a) set out the type and quantity of the oil received or exported, as the case may be; and

  • (b) contain any other information or documents that the Minister directs them to provide under section 118.1.

• Marginal note:Records and books of account — payers of levy

  (1.1) Every person referred to in subsection (1) who is required to pay an amount under section 114.1 or 114.2 shall keep at their place of business in Canada, or at any other place in Canada that is designated by the Minister, records and books of account that set out, in addition to the information referred to in subsection (1),

  • (a) the amounts that are payable by that person under section 114.1 or 114.2 in respect of the types and quantities of oil referred to in subsection (1); and

  • (b) proof of payment for each payment made with respect to an amount referred to in paragraph (a), including the date of each payment made.

• Marginal note:Disposal of records

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

• Marginal note:Examination of records

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

Marginal note:Power to require information

118.1 If the Minister directs that a person referred to in subsection 118(1) provide, in the specified form and within the specified period, information or documents that the Minister considers necessary for the purposes of ensuring compliance with this Part, the person shall provide that information in that form and within that period.

Marginal note:Inspection

• 119 (1) Any person so designated in writing by the Minister may, at any reasonable time, enter any place in which the person has reasonable grounds to believe that there are any records, books of account, accounts, vouchers or other documents referred to in section 118 and

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

  • (b) require the owner, occupier or person in charge of the place to give the designated person all reasonable assistance in connection with the examination under paragraph (a) and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at that place with the designated person.

• Marginal note:Warrant to enter dwelling place

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

• Marginal note:Authority to issue warrant

  (3) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing the designated person to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

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

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

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

• Marginal note:Certificate of designation

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

• Marginal note:Report to Minister

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

• Marginal note:Return of original or copy of documents

  (6) The original or a copy of any record, book of account, account, voucher or other document that is taken away under paragraph (1)(a) shall be returned to the person from whose custody it is taken within 21 days after it is taken or within any longer period that is directed by a judge of a superior court for cause or agreed to by a person who is entitled to its return.

• Marginal note:Notice of application for extension of time

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

• Marginal note:Copies of documents

  (8) A document purporting to be certified by the Minister to be a copy of a record, book of account, account, voucher or other document made under paragraph (1)(a) is admissible in evidence in any prosecution for an offence under this Part and is, in the absence of evidence to the contrary, proof of its contents.

• Marginal note:Obstruction and false statements

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

Governance of the Ship-source Oil Pollution Fund

Marginal note:Books of account and systems

• 120 (1) The Administrator shall cause

  • (a) records and books of account to be kept in relation to the Ship-source Oil Pollution Fund; and

  • (b) control and information systems and management practices, in respect of financial and management matters, to be maintained in relation to the Ship-source Oil Pollution Fund.

• Marginal note:Administrator’s responsibilities

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

  • (a) the Administrator’s and Deputy Administrator’s powers, duties and functions under this Part are exercised and performed effectively and in accordance with this Part;

  • (b) the assets used by them are safeguarded and controlled; and

  • (c) the financial, human and physical resources used by them are managed economically and efficiently.

Marginal note:Annual report

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

• Marginal note:Form and content

  (2) The annual report must include

  • (a) a statement of the amounts charged and credited to the Ship-source Oil Pollution Fund during the fiscal year;

  • (a.1) a statement of the costs and expenses incurred during the fiscal year by the Administrator and the Deputy Administrator in exercising their powers and performing their duties and functions under this Part;

  • (a.2) a statement of the fees for services rendered by the Administrator and the Deputy Administrator during the fiscal year;

  • (b) the auditor’s report with respect to the statements referred to in paragraphs (a) to (a.2); and

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

Marginal note:Special examination

• 122 (1) The Administrator shall cause a special examination to be carried out in respect of the Ship-source Oil Pollution Fund to determine if the Fund’s systems and practices referred to in paragraph 120(1)(b) were, in the period under examination, maintained in a manner that provided reasonable assurance that they met the requirements of paragraphs 120(2)(b) and (c).

• Marginal note:Time for examination

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

• Marginal note:Examiner

  (3) The Administrator shall appoint a person to act as examiner for the purpose of conducting a special examination. However, if a special examination is required by the Governor in Council or the Minister, the Governor in Council or the Minister, as the case may be, shall make the appointment.

• Marginal note:Conflict of interest

  (4) The examiner shall not accept or hold any office or employment, or carry on any activity, that is inconsistent with their duties and functions under this section and section 123.

• Marginal note:Plan

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

• Marginal note:Resolution of disagreements

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

Marginal note:Report

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

• Marginal note:Contents

  (2) The examiner’s report must include

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

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

Marginal note:Right to information

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

  • (a) information and explanations; and

  • (b) access to any records, books of account, accounts, vouchers and other documents related to the Fund.

• Marginal note:Administrator’s responsibilities

  (2) On receiving the examiner’s direction, the Administrator shall

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

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

Regulations

Marginal note:Governor in Council

125 The Governor in Council may make regulations

• (a) respecting the payment of the levy under section 114.1 and of the additional levy under section 114.2;

• (b) prescribing, for the purposes of any of paragraphs 114.1(2)(b) to (d), a quantity of oil that is less than the quantity set out in that paragraph;

• (c) exempting classes of persons from the application of any of paragraphs 114.1(2)(a) to (d);

• (c.1) prescribing classes of persons for the purposes of regulations made under paragraph (c);

• (c.2) amending the definition receiver in subsection 91(1);

• (c.3) prescribing classes of persons who export, in a calendar year, more than 150 000 metric tons of contributing oil that is shipped in bulk as cargo after being exported and deeming those persons to have exported the contributing oil in bulk as cargo in that year;

• (c.4) prescribing classes of persons who export, in a calendar year, more than 20 000 metric tons of non-persistent oil that is shipped in bulk as cargo after being exported and deeming those persons to have exported the non-persistent oil in bulk as cargo in that year;

• (c.5) prescribing, for the purposes of paragraph (c.3) or (c.4), a quantity of oil that is less than the quantity set out in that paragraph; and

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

PART 8General Provisions

Administration and Enforcement

Marginal note:Designated officers

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

• Marginal note:Immunity

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

Marginal note:Crown not relieved

127 Subsection 126(2) does not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown of liability for a tort or extracontractual civil liability to which the Crown would otherwise be subject.

Marginal note:Powers

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

  • (a) direct the ship to stop; and

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

• Marginal note:Duty to assist

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

Marginal note:Detention

• 129 (1) If a designated officer believes, on reasonable grounds, that an offence in respect of sections 55 or 73 or regulations made under paragraph 39(a) or (b) has been committed by or in respect of a ship, they may make a detention order in respect of the ship.

• Marginal note:Order to be in writing

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

• Marginal note:Detention order to be served on master

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

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

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

• Marginal note:Contents of notice

  (4) The notice must

  • (a) indicate the measures to be taken to ensure compliance with section 55 or 73 or regulations made under paragraph 39(a) or (b) that must be taken for the detention order to be revoked within any time specified in the order; and

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

• Marginal note:Revocation of orders

  (5) A designated officer shall

  • (a) revoke a detention order made under this section if they are satisfied that the measures indicated in the notice have been taken and, if applicable, that security in the amount and form indicated in the notice has been deposited with the Minister; and

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

• Marginal note:Duty of persons empowered to give clearance

  (6) No person to whom a detention order made under this section is addressed shall, after having received notice of the order, grant clearance to the ship in respect of which the order is made unless they are notified that the order has been revoked.

• Marginal note:Movement of ship prohibited

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

• Marginal note:Liability for expenses

  (8) The owner of a ship that is detained under this section is liable for all expenses incurred in respect of the detained ship.

• Marginal note:Return of security

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

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

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

• Marginal note:Regulations

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

Marginal note:Direction to move detained ship

130 The Minister may

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

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

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

Administrative Monetary Penalties

Assurances of Compliance and Notices of Violation

Marginal note:Violation

• 130.01 (1) Every person who contravenes any of the following provisions commits a violation and is liable to a penalty:

  • (a) subsections 74.4(2) and (3), any of paragraphs 114.1(2)(a) to (d), subsections 114.2(1), 117.1(1) and (1.1), 117.3(2) and 118(1) and (1.1), section 118.1 and subsection 129(7);

  • (b) a provision of this Act or of the regulations the contravention of which is designated as a violation by a regulation made under paragraph 130.19(a).

• Marginal note:Penalty

  (2) The maximum amount payable as the penalty for each violation set out in subsection (1) is, in the case of an individual, $50,000 and, in the case of any other person, $250,000.

• Marginal note:Clarification

  (3) If a contravention of a provision may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding with it in the other.

• Marginal note:Nature of violation

  (4) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

• Marginal note:Due diligence defence

  (5) A person shall not be found to be liable for a violation under this Act, other than in relation to a contravention of subsection 117.3(2) or 118(1) or (1.1), if they establish that they exercised due diligence to prevent its commission.

Marginal note:Assurance of compliance or notice of violation

• 130.02 (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may

  • (a) enter into an assurance of compliance with the person that

    • (i) identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance,

    • (ii) sets out the amount and form of any security that, pending compliance with the assurance, is to be deposited with the Minister, and

    • (iii) sets out the penalty that the person would have been liable to pay for the violation if the assurance had not been entered into; or

  • (b) issue, and cause to be served on the person, a notice of violation that names them, identifies the violation and sets out

    • (i) the penalty that the person is liable to pay for the violation,

    • (ii) the period, being 30 days after the day on which the notice is served, within which the penalty is to be paid or a review is to be requested, and

    • (iii) particulars of the manner in which, and the address at which, the penalty is to be paid or a review is to be requested.

• Marginal note:Extension of period

  (2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person is unable to comply with the assurance of compliance for reasons beyond the person’s control.

• Marginal note:Short-form descriptions in notices of violation

  (3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Deemed violation

• 130.03 (1) A person who enters into an assurance of compliance under paragraph 130.02(1)(a) is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.

• Marginal note:Request for review

  (2) A person who enters into an assurance of compliance may, within 48 hours after the assurance is signed, unless a notice of default is served within that period under subsection 130.05(1), file a request with the Transportation Appeal Tribunal of Canada for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and the person is deemed to have filed a written request for a review of the facts of the violation and the amount of the penalty under paragraph 130.09(1)(b).

Marginal note:When assurance of compliance complied with

130.04 If the Minister is satisfied that a person who has entered into an assurance of compliance under paragraph 130.02(1)(a) has complied with it, he or she shall cause a notice to that effect to be served on the person and, on the service of the notice,

• (a) no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and

• (b) any security deposited under subparagraph 130.02(1)(a)(ii) shall be returned to the person.

Marginal note:When assurance of compliance not complied with

• 130.05 (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance under paragraph 130.02(1)(a) has not complied with it, he or she may cause a notice of default to be served on the person to the effect that, unless a member of the Transportation Appeal Tribunal of Canada determines under section 130.07 that the assurance has been complied with, or an appeal panel of that Tribunal decides under section 130.1 that the assurance has been complied with,

  • (a) the person is liable to pay double the amount of the penalty set out in the assurance; or

  • (b) the security deposited under subparagraph 130.02(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) The notice shall include the address at which, and the date — being 30 days after the day on which the notice is served — on or before which, a request for a review may be filed and the particulars concerning the procedure for requesting a review.

• Marginal note:Effect of notice of default

  (3) Once served with the notice of default, the person may not deduct from the amount set out in the notice any amount that the person spent under the assurance of compliance.

Marginal note:Manner of service

• 130.06 (1) A notice referred to in any of sections 130.02, 130.04, 130.05 and 130.18 is to be served

  • (a) in the case of an individual,

    • (i) by leaving a copy of it with the individual at any place or with someone who appears to be an adult member of the same household at the individual’s last known address or usual place of residence or, in the case of an individual under the age of 18, with a parent or other person having custody of them or exercising parental authority over them, or

    • (ii) by sending a copy of it by registered mail, courier or electronic means to the individual’s last known address or usual place of residence; and

  • (b) in the case of a person other than an individual,

    • (i) by leaving a copy of it with their representative or with an officer or other individual who appears to control or manage the person’s or representative’s head office or place of business, or

    • (ii) by sending a copy of it by registered mail, courier or electronic means to their representative, to an individual referred to in subparagraph (i) or to the person’s or representative’s head office or place of business.

• Marginal note:Proof of service

  (2) Service may be proved by

  • (a) an acknowledgement of service signed by or on behalf of the person served, specifying the date and location of service;

  • (b) a certificate of service, signed by the person who effected the service, indicating the name of the person served and the means by which and day on which service was effected; or

  • (c) a record of electronic transmission setting out the date and time of transmission.

• Marginal note:Date service effective

  (3) In the absence of an acknowledgement of service or a certificate of service, service is considered effective,

  • (a) in the case of service by registered mail or courier, on the 10th day after the day on which the notice is sent, as indicated on the receipt issued by the postal or courier service; and

  • (b) in the case of service by electronic means, on the day on which it is sent, as indicated on the record of transmission.

Marginal note:Request for review

• 130.07 (1) A person served with a notice under subsection 130.05(1) may, no later than the date specified in the notice or within any further time that the Transportation Appeal Tribunal of Canada on application allows, file a written request for a review of the Minister’s decision made under that subsection with the Tribunal.

• Marginal note:Time and place for review

  (2) On receipt of the request, the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.

• Marginal note:Burden of proof

  (4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Certain defences not available

  (5) Despite subsection 130.01(5), a person does not have a defence by reason that the person exercised due diligence to comply with the assurance of compliance.

• Marginal note:Determination by member

  (6) At the conclusion of the review, the member who conducts the review shall confirm the Minister’s decision or determine that the person has complied with the assurance of compliance and shall without delay inform the parties of his or her decision.

Marginal note:Return of security

130.08 Any security deposited under subparagraph 130.02(1)(a)(ii) shall be returned to the person if

• (a) a notice is served under subsection 130.05(1) and the person pays double the amount of the penalty set out in the assurance of compliance; or

• (b) a member of the Transportation Appeal Tribunal of Canada determines under subsection 130.07(6), or an appeal panel of that Tribunal decides under subsection 130.1(3), that the assurance has been complied with.

Marginal note:Notice of violation — options

• 130.09 (1) A person served with a notice of violation under paragraph 130.02(1)(b) shall

  • (a) pay the amount of the penalty; or

  • (b) within 30 days after the day on which the notice is served or any further time that the Transportation Appeal Tribunal of Canada on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.

• Marginal note:Amount paid or no review requested

  (2) If a review is not requested within the period referred to in paragraph (1)(b), or the amount of the penalty is paid, the person is considered to have committed the violation in respect of which the notice was served and any proceedings in respect of the violation are ended.

• Marginal note:Time and place for review

  (3) On receipt of a request filed under paragraph (1)(b), the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.

• Marginal note:Review procedure

  (4) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.

• Marginal note:Burden of proof

  (5) In every case when the facts of a violation are reviewed, the burden is on the Minister to establish that the person committed the violation referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Determination by member

  (6) At the conclusion of the review, the member who conducts the review shall, without delay and in writing, inform the Minister and the person who is alleged to have committed a violation of the member’s determination.

• Marginal note:Determination — no violation

  (7) If the member determines that the person has not committed a violation, then, subject to section 130.1, no further proceedings under this Act may be taken against the person in respect of the alleged violation.

• Marginal note:Determination — violation

  (8) If the member determines that the person has committed a violation, then the member shall inform the Minister and the person, subject to subsection 130.01(2) and regulations made under paragraph 130.19(b), of the amount determined by the member to be payable to the Transportation Appeal Tribunal of Canada by or on behalf of the person and the period within which it is to be paid.

Marginal note:Right of appeal

• 130.1 (1) The Minister or the person who requested the review may, within 30 days after the day on which a determination is made under subsection 130.07(6) or 130.09(6), appeal the determination to the Transportation Appeal Tribunal of Canada.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at the review hearing is not entitled to appeal the determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) At the conclusion of the review, the appeal panel of the Transportation Appeal Tribunal of Canada that is assigned to hear the appeal shall

  • (a) in the case of a determination made under subsection 130.07(6), dismiss the appeal or allow the appeal and substitute its own decision; or

  • (b) in the case of a determination made under subsection 130.09(6), dismiss the appeal or allow the appeal and, subject to subsection 130.01(2) and regulations made under paragraph 130.19(b), substitute its own decision.

  The appeal panel shall inform the parties of its decision without delay and specify the period within which any amount determined by the appeal panel to be payable to the Transportation Appeal Tribunal of Canada is to be paid.

Recovery of Debts

Marginal note:Debts due to Her Majesty

• 130.11 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Admiralty Court or any other court of competent jurisdiction:

  • (a) the amount of a penalty set out in a notice of violation referred to in paragraph 130.02(1)(b), from the expiry of the period specified in the notice for the payment of that amount, unless a review is requested under paragraph 130.09(1)(b);

  • (b) the amount referred to in paragraph 130.05(1)(a) that a person is liable to pay, from the time the notice of default referred to in subsection 130.05(1) is served, unless a review is requested under subsection 130.07(1);

  • (c) the amount of a penalty determined by a member under section 130.09 or an appeal panel under section 130.1, from the expiry of the period specified in the decision for the payment of that amount; and

  • (d) the amount of any costs and expenses referred to in subsection (3).

• Marginal note:Limitation or prescription period

  (2) Proceedings to recover a debt referred to in subsection (1) may be commenced no later than five years after the day on which the debt becomes payable.

• Marginal note:Liability

  (3) A person who is liable to pay an amount referred to in any of paragraphs (1)(a) to (c) is also liable for the amount of any costs and expenses incurred in attempting to recover that amount.

Marginal note:Certificate of default

• 130.12 (1) All or part of a debt referred to in subsection 130.11(1) in respect of which there is a default of payment may be certified by the Minister or the Transportation Appeal Tribunal of Canada, as the case may be.

• Marginal note:Effect of registration

  (2) On production to the Admiralty Court, a certificate made under subsection (1) is to be registered in that Court and, when registered, has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all costs and expenses attendant on its registration.

General

Marginal note:Party to violation committed by corporation

130.13 If a corporation commits a violation under this Act, any director, officer or agent or mandatary of the corporation that directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to and liable for the violation, whether or not the corporation has been identified or proceeded against under sections 130.02 to 130.12.

Marginal note:Violation by employee or agent or mandatary

130.14 A person is liable for a violation that is committed by the person’s employee or agent or mandatary, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against under this Act.

Marginal note:Limitation or prescription period

130.15 No notice of violation may be issued more than two years after the day on which the Minister becomes aware of the violation.

Marginal note:Certificate

130.16 A document that purports to have been issued by the Minister and that certifies the day on which he or she became aware of the violation is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of any evidence to the contrary, is evidence that the Minister became aware of the violation on that day.

Public Record

Marginal note:Notices of violation and of default

130.17 The Minister may keep a public record of notices of violation and notices of default, including, with respect to each violation or default, the nature of the violation or default, the name of the person who committed it and the amount of the penalty.

Marginal note:Notations removed

• 130.18 (1) Unless the Minister is of the opinion that it is not in the public interest to do so, the Minister shall remove from the public record of notices of violation and notices of default, on the fifth anniversary of the day on which a person has paid every penalty that they are liable to pay under this Act, the notice of violation or notice of default along with all the other information kept in the public record with respect to the violation or default.

• Marginal note:Notice

  (2) If the Minister is of the opinion that the removal is not in the public interest, he or she shall give notice of that fact to the person in writing and provide the grounds for that opinion.

• Marginal note:Contents of notice

  (3) The notice shall include the address at which, and the date — being 30 days after the day on which the notice is served — on or before which, a request for a review may be filed and the particulars concerning the procedure for requesting a review.

• Marginal note:Request for review

  (4) The person may, no later than the date specified in the notice or within any further time that the Transportation Appeal Tribunal of Canada on application may allow, file with the Tribunal a written request for a review of the Minister’s decision made under subsection (2).

• Marginal note:Time and place for review

  (5) On receipt of the request, the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.

• Marginal note:Review procedure

  (6) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.

• Marginal note:Determination by member

  (7) The member who conducts the review shall confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.

• Marginal note:Right of appeal

  (8) The person who requested the review may, within 30 days after the day on which a determination is made under subsection (7), appeal the determination to the Transportation Appeal Tribunal of Canada.

• Marginal note:Loss of right of appeal

  (9) If the person does not appear at the review hearing, the person is not entitled to appeal the determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (10) The appeal panel of the Transportation Appeal Tribunal of Canada that is assigned to hear the appeal shall dismiss it or refer the matter back to the Minister for reconsideration.

Regulations

Marginal note:Governor in Council

130.19 For the purposes of sections 130.01 to 130.18, the Governor in Council may, on the recommendation of the Minister, make regulations

• (a) designating as a violation the contravention of any specified provision of this Act or of the regulations;

• (b) establishing a penalty or a range of penalties in respect of a violation up to the maximum amount set out in subsection 130.01(2); and

• (c) if a range of penalties is established by regulations made under paragraph (b), respecting the method of determining the amount payable as the penalty for the violation, including the criteria to be taken into account.

Offences

Marginal note:Contraventions

131 Every person or ship that contravenes subsection 55(1) or (2), 73(1) or (2), 128(2) or 129(6) or (7) or regulations made under section 39 is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

Marginal note:Failure to pay

• 132 (1) Every person who contravenes any of paragraphs 114.1(2)(a) to (d) or subsection 114.2(1) is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:False or misleading information return — receiver

  (2) Every receiver who files an information return under subsection 74.4(2) that contains a material statement that they know or ought reasonably to know is false or misleading is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:Falsifying or destroying books of account

  (3) Every person who knowingly destroys, mutilates or falsifies, or who knowingly makes any false or misleading entry or statement in, any record or book of account required to be kept under subsection 118(1) or (1.1) is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:Omission from books of account

  (3.1) Every person who knowingly omits a material entry or statement from any record or book of account required to be kept under subsection 118(1) or (1.1) is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:Contraventions

  (4) Every person who contravenes subsection 74.4(7) or 117.3(2), section 118 or subsection 119(9) is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:Failure to file information return — receiver

  (4.1) Every receiver who contravenes subsection 74.4(2) is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:False or misleading information

  (5) Every person who files a claim under subsection 106.1(1) that includes information that they know or ought reasonably to know is false or misleading is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:Failure to file information return — person

  (6) Every person who contravenes subsection 117.1(1) or (1.1) or section 118.1 is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:False or misleading information return — person

  (7) Every person who files an information return under subsection 117.1(1) or (1.1) that contains a material statement that they know or ought reasonably to know is false or misleading is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

• Marginal note:False or misleading information

  (8) Every person who provides information or a document under section 118.1 that contains a material statement that they know or ought reasonably to know is false or misleading is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000.

Marginal note:Due diligence defence

132.1 A person shall not be found guilty of an offence under section 131 or any of subsections 132(1), (4.1) and (6) if they establish that they exercised due diligence to prevent the commission of the offence.

Marginal note:Jurisdiction in relation to offences

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

Marginal note:Proof of offence

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

Marginal note:Limitation period

• 135 (1) Proceedings by way of summary conviction under this Act may be instituted within two years after the day on which the Minister becomes aware of the subject matter of the proceedings.

• Marginal note:Minister’s certificate

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

• Marginal note:Defendant outside Canada

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

Sale of Ships

Marginal note:Application by Minister

• 136 (1) The Minister may apply to any court of competent jurisdiction for an order authorizing him or her to sell a ship that has been detained under section 129 if

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

    • (i) the security required under paragraph 129(4)(b) is not deposited within the time specified in the detention order,

    • (ii) the person or ship charged is convicted, and

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

  • (b) no information is laid and

    • (i) the measures referred to in paragraph 129(4)(a) have not been taken within the time specified in the detention order, and

    • (ii) the expenses incurred in respect of the detained ship have not been paid.

• Marginal note:Court may authorize sale

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

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

  • (b) on application by the Minister or a person referred to in paragraph 137(1)(b) or (c), give directions concerning the ranking of the interests in the ship.

Marginal note:Notice

• 137 (1) As soon as is feasible after making an application under section 136, the Minister shall give notice of the application by registered mail to

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

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

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

• Marginal note:Day notice deemed to be given

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

• Marginal note:Relief from giving notice

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

Marginal note:Payment of proceeds

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

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

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

  • (c) the amount of any fine imposed;

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

• Marginal note:Surplus

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

• Marginal note:Proceedings against owner

  (3) If the proceeds of sale of a ship are insufficient to satisfy the claims described in paragraphs (1)(a) and (c), the Minister may proceed against the owner of the ship for the balance owing.

• Marginal note:Clear title

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

Maritime Lien

Definition of foreign vessel

• 139 (1) In this section, foreign vessel has the same meaning as in section 2 of the Canada Shipping Act, 2001.

• Marginal note:Maritime lien

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

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

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

• Marginal note:Services requested by owner

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

• Marginal note:Exception

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

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

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

• Marginal note:Federal Courts Act

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

Limitation Period

Marginal note:Proceedings under maritime law

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

Inconsistency

Marginal note:Priority over Arctic Waters Pollution Prevention Act

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

Coming Into Force

Marginal note:Order in council

Footnote ^*142 Section 45 comes into force on a day to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Section 45 repealed before coming into force, see 2008, c. 20, s. 3.]