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

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.