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

Full Document:  

Act current to 2019-12-03 and last amended on 2018-12-13. Previous Versions

Marine Liability Act

S.C. 2001, c. 6

Assented to 2001-05-10

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

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

Marginal note:Short title

 This Act may be cited as the Marine Liability Act.

Interpretation

Marginal note:Definitions

 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

 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

 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

 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.

  • 2001, c. 6, s. 5
  • 2002, c. 8, s. 182

Liability to Dependants

Marginal note:Damages for personal injury

  •  (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

 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

 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

 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

  •  (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

 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

 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

 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

  •  (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

  •  (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

 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.

  • 2001, c. 6, s. 16
  • 2002, c. 8, s. 182

General

Marginal note:Apportionment based on degree of fault

  •  (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

 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

 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

  •  (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

 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

 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

  •  (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

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Part.

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)

  • 2001, c. 6, s. 24
  • 2009, c. 21, s. 1

Marginal note:Extended meaning of expressions

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

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

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

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

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

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

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

  • 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

  •  (1) Subject to the other provisions of this Part, 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 Part does not apply to a claim that is the subject of a reservation made by Canada.

  • 2001, c. 6, s. 26
  • 2009, c. 21, s. 2

Marginal note:State Party to the Convention

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

Marginal note:Passenger claims

  •  (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).

  • 2001, c. 6, s. 28
  • 2009, c. 21, s. 3

Marginal note:Other claims

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

  • (b) $500,000 in respect of any other claims.

  • 2001, c. 6, s. 29, c. 26, s. 324
  • 2009, c. 21, s. 3

Marginal note:Calculation of tonnage

 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.

  • 2009, c. 21, s. 3

Liability of Owners of Docks, Canals and Ports

Marginal note:Limitation of liability

  •  (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.

  • 2001, c. 6, s. 30
  • 2009, c. 21, s. 4

Amendment of Maximum Liability

Marginal note:Amendment of limits

  •  (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.

  • 2001, c. 6, s. 31
  • 2009, c. 21, s. 5

Procedure

Marginal note:Jurisdiction of Admiralty Court

  •  (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

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

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

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

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

  • 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:Release of ships, etc.

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

  • 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

 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 Part.

  • 2009, c. 21, s. 6

PART 4Liability for Carriage of Passengers by Water

Interpretation

Marginal note:Definitions

 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

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

    • (a) the definition ship in Article 1 of the Convention shall be read as including any vessel or craft designed, used or capable of being used solely or partly for navigation, whether seagoing or not, but not including an air cushion vehicle or 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.

  • 2001, c. 6, s. 36
  • 2009, c. 21, s. 7

Application

Marginal note:Force of law

  •  (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.

  • 2001, c. 6, s. 37
  • 2009, c. 21, s. 8

Marginal note:Exception — adventure tourism activities

  •  (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).

  • 2009, c. 21, s. 9

Marginal note:State Party to the Convention

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

Regulations and Orders

Marginal note:Governor in Council

 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.

  • 2001, c. 6, s. 39
  • 2009, c. 21, s. 10

Marginal note:Amendment of limits

 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.

  • 2001, c. 6, s. 40
  • 2009, c. 21, s. 10

PART 5Liability for Carriage of Goods by Water

Interpretation

Marginal note:Definitions

 The definitions in this section apply in this Part.

Hague-Visby Rules

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. (règles de La Haye-Visby)

Hamburg Rules

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

Marginal note:Other statutory limitations of liability

 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.

  • 2001, c. 6, s. 42, c. 26, s. 324

Hague-Visby Rules

Marginal note:Effect

  •  (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.

  • Marginal note:Replacement by Hamburg Rules

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

Hamburg Rules

Marginal note:Report to Parliament

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

The following provision is not in force.

Marginal note:Effect

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

  • Marginal note:Extended application

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

  • Meaning of Contracting State

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

  • Marginal note:References to “sea”

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

  • Marginal note:Signatures

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

Institution of Proceedings in Canada

Marginal note:Claims not subject to Hamburg Rules

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

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

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

    • (c) the contract was made in Canada.

  • Marginal note:Agreement to designate

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

PART 6Liability and Compensation for Pollution

DIVISION 1International Conventions

Interpretation

Marginal note:Definitions

  •  (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.

  • 2001, c. 6, s. 47
  • 2009, c. 21, s. 11
  • 2014, c. 29, s. 29

Civil Liability Convention

Marginal note:Force of law

 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.

  • 2001, c. 6, s. 48
  • 2009, c. 21, s. 11

Marginal note:Contracting State

  •  (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.

  • 2001, c. 6, s. 49
  • 2009, c. 21, s. 11

Marginal note:Schedule 5 — limits amendment

 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.

  • 2001, c. 6, s. 50
  • 2009, c. 21, s. 11

Marginal note:Liability for pollution and related costs

  •  (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.

  • 2001, c. 6, s. 51, c. 26, s. 324
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 713

Marginal note:Admiralty Court’s jurisdiction — limitation fund

  •  (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.

  • 2001, c. 6, s. 52
  • 2009, c. 21, s. 11

Marginal note:Admiralty Court’s powers

  •  (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; 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.

  • 2001, c. 6, s. 53
  • 2009, c. 21, s. 11

Marginal note:Public notice

  •  (1) The person constituting the fund shall, as soon as feasible, give notice of the fund’s constitution in the Canada Gazette and in a newspaper in general circulation in the region where the incident occurs.

  • Marginal note:Proof of notice

    (2) Within 30 days after the fund’s constitution, the person constituting it shall file the public notices in the Admiralty Court.

  • 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.

  • 2001, c. 6, s. 54
  • SOR/2003-353
  • 2009, c. 21, s. 11
  • 2014, c. 29, s. 30(F)

Marginal note:Absence of certificate

  •  (1) Unless a ship carries a certificate described in Article VII of the Civil Liability Convention issued in accordance with subsection 56(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of a ship carrying, in bulk as cargo, more than 2 000 metric tons of oil, 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.

  • 2001, c. 6, s. 55
  • 2009, c. 21, s. 11

Marginal note:By whom certificate to be issued

  •  (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.

  • 2001, c. 6, s. 56
  • 2009, c. 21, s. 11

Fund Convention

Marginal note:Force of law

 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.

  • 2001, c. 6, s. 57
  • 2009, c. 21, s. 11

Marginal note:Contracting State

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

  • 2001, c. 6, s. 58
  • 2009, c. 21, s. 11

Marginal note:Schedule 6 — limits amendment

 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.

  • 2001, c. 6, s. 59
  • 2009, c. 21, s. 11

Meaning of associated persons

 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.

  • 2001, c. 6, s. 60
  • 2009, c. 21, s. 11

Marginal note:Legal capacity of International Fund

 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.

  • 2001, c. 6, s. 61
  • 2009, c. 21, s. 11

Marginal note:International Fund to be party to legal proceedings

  •  (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.

  • 2001, c. 6, s. 62
  • 2009, c. 21, s. 11

Supplementary Fund Protocol

Marginal note:Force of law

 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.

  • 2001, c. 6, s. 63
  • 2009, c. 21, s. 11

Marginal note:Contracting State

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

  • 2001, c. 6, s. 64
  • 2009, c. 21, s. 11

Marginal note:Schedule 7 — limits amendment

 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.

  • 2001, c. 6, s. 65
  • 2009, c. 21, s. 11

Meaning of associated persons

 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.

  • 2001, c. 6, s. 66
  • 2009, c. 21, s. 11

Marginal note:Legal capacity of Supplementary Fund

 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.

  • 2001, c. 6, s. 67
  • 2009, c. 21, s. 11

Marginal note:Supplementary Fund to be party to legal proceedings

  •  (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.

  • 2001, c. 6, s. 68
  • 2009, c. 21, s. 11

Bunkers Convention

Marginal note:Force of law

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

  • 2001, c. 6, s. 69
  • 2009, c. 21, s. 11

Marginal note:State Party

  •  (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.

  • 2001, c. 6, s. 70
  • 2009, c. 21, s. 11

Marginal note:Liability for pollution and related costs

  •  (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.

  • 2001, c. 6, s. 71
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 714

Marginal note:Application of Part 3

 Part 3 applies to claims arising under the Bunkers Convention.

  • 2001, c. 6, s. 72
  • 2009, c. 21, s. 11

Marginal note:Absence of certificate

  •  (1) Unless a ship carries a certificate described in Article 7 of the Bunkers Convention issued in accordance with subsection 74(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of a ship having 1 000 gross tonnage or more, 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.

  • 2001, c. 6, s. 73
  • 2009, c. 21, s. 11

Marginal note:By whom certificate to be issued

  •  (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.

  • 2001, c. 6, s. 74
  • 2009, c. 21, s. 11

Marginal note:State Party

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

  • 2014, c. 29, s. 32

Meaning of associated persons

 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.

  • 2014, c. 29, s. 34

Meaning of receiver

  •  (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.

  • 2014, c. 29, s. 36

DIVISION 2Liability Not Covered by Division 1

Interpretation

Marginal note:Definitions

 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)

  • 2001, c. 6, s. 75
  • 2009, c. 21, s. 11

Application

Marginal note:Geographical application

 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.

  • 2001, c. 6, s. 76
  • 2009, c. 21, s. 11

Marginal note:Liability for pollution and related costs

  •  (1) The owner of a ship is liable

    • (a) for oil pollution damage from the ship;

    • (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 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.

  • 2001, c. 6, s. 77
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 715

Marginal note:Application of Part 3

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

  • 2001, c. 6, s. 78
  • 2009, c. 21, s. 11

DIVISION 3General Provisions

Admiralty Court

Marginal note:Jurisdiction

  •  (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.

  • 2001, c. 6, s. 79
  • 2009, c. 21, s. 11

Registration of Foreign Judgments

Marginal note:Definitions

 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)

  • 2001, c. 6, s. 80
  • 2009, c. 21, s. 11

Marginal note:Application

 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.

  • 2001, c. 6, s. 81
  • 2009, c. 21, s. 11

Marginal note:Registration of foreign judgment

  •  (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.

  • 2001, c. 6, s. 82
  • 2009, c. 21, s. 11

Marginal note:Pre-registration interest

 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.

  • 2001, c. 6, s. 83
  • 2009, c. 21, s. 11

Marginal note:Costs

 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.

  • 2001, c. 6, s. 84
  • 2009, c. 21, s. 11

Marginal note:Conversion to Canadian currency

  •  (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.

  • 2001, c. 6, s. 85
  • 2009, c. 21, s. 11

Marginal note:Effect of registration

 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.

  • 2001, c. 6, s. 86
  • 2009, c. 21, s. 11

Marginal note:Service of notice of registration

 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.

  • 2001, c. 6, s. 87
  • 2009, c. 21, s. 11

Marginal note:Application to set aside registration

  •  (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.

  • 2001, c. 6, s. 88, c. 27, s. 273.1
  • 2009, c. 21, s. 11

Marginal note:Application for stay of execution

  •  (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).

  • 2001, c. 6, s. 89
  • 2003, c. 22, s. 225(E)
  • 2009, c. 21, s. 11

Regulations

Marginal note:Governor in Council

 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.

  • 2001, c. 6, s. 90
  • 2009, c. 21, s. 11

PART 7Ship-source Oil Pollution Fund

Interpretation

Marginal note:Definitions

  •  (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).

  • 2001, c. 6, s. 91
  • 2009, c. 21, s. 11
  • 2014, c. 29, s. 40
  • 2018, c. 27, s. 716

Ship-source Oil Pollution Fund

Marginal note:Ship-source Oil Pollution Fund continued

  •  (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);

    • (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), subsection 106.3(4), paragraph 108(1)(a), subsection 108(6) 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);

    • (e) the remuneration and expenses of assessors that are directed to be paid under subsection 108(2); and

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

  • 2001, c. 6, s. 92
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 717

Marginal note:Interest to be credited to Fund

 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.

  • 2001, c. 6, s. 93
  • 2009, c. 21, s. 11

Marginal note:Consolidated Revenue Fund

 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.

  • 2018, c. 27, s. 718

Administrator and Deputy Administrator

Marginal note:Appointment of Administrator

  •  (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.

  • 2001, c. 6, s. 94
  • 2009, c. 21, s. 11

Marginal note:Deputy Administrator

  •  (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.

  • 2001, c. 6, s. 95
  • 2009, c. 21, s. 11

Marginal note:Resignation

 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.

  • 2001, c. 6, s. 96
  • 2009, c. 21, s. 11

Marginal note:Conflict of interest

  •  (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.

  • 2001, c. 6, s. 97
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 719

Marginal note:Remuneration

  •  (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.

  • 2001, c. 6, s. 98
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 719

Marginal note:Deputy Administrator’s duties and functions

  •  (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.

  • 2001, c. 6, s. 99
  • 2009, c. 21, s. 11

Marginal note:Professional and technical assistance

 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.

  • 2001, c. 6, s. 100
  • 2009, c. 21, s. 11

Liability of Ship-source Oil Pollution Fund

Process for Claims

Marginal note:Liability of Ship-source Oil Pollution Fund

  •  (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.

  • 2001, c. 6, s. 101
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 721

Marginal note:Action by Administrator

  •  (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.

  • 2001, c. 6, s. 102
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 722

Marginal note:Claims filed with Administrator

  •  (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:Limitation or prescription period

    (2) The claim must be made

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

    • (b) if no oil pollution damage occurs, within five years after the occurrence 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) and (1.1) do 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.

  • 2001, c. 6, s. 103, c. 26, s. 324
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 723

Marginal note:Liability — exception

 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.

  • 2001, c. 6, s. 104
  • 2009, c. 21, s. 11

Marginal note:Administrator’s duties

  •  (1) On receipt of a claim under section 103, the Administrator shall

    • (a) investigate and assess it; and

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

  • 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) or (1.1), 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.

  • 2001, c. 6, s. 105
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 724

Marginal note:Offer of compensation

  •  (1) If the Administrator makes an offer of compensation to a claimant under paragraph 105(1)(b), 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 at the end of 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 adequacy of the offer or the disallowance of the claim to the Admiralty Court, but in an appeal from the disallowance of a claim, that Court may consider only the matters described in paragraphs 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 without delay direct payment to be made to the claimant of the amount of the offer out of the Ship-source Oil Pollution Fund;

    • (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;

    • (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.

  • 2001, c. 6, s. 106
  • 2009, c. 21, s. 11

Expedited Process for Small Claims

Marginal note:Expedited claims — small amounts

  •  (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) within one year after the day of the occurrence that causes the oil pollution 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.

  • 2018, c. 27, s. 725

Marginal note:Liability — exception

 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).

  • 2018, c. 27, s. 725

Marginal note:Administrator’s duties

  •  (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.

  • 2018, c. 27, s. 725

Marginal note:Supporting documents

  •  (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.

  • 2018, c. 27, s. 725

Marginal note:Post-payment investigation and reassessment

  •  (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).

  • 2018, c. 27, s. 725

Marginal note:Result of investigation and reassessment

  •  (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.

  • 2018, c. 27, s. 725

Marginal note:Debts due to Her Majesty

 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.

  • 2018, c. 27, s. 725

Marginal note:Regulations

 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).

  • 2018, c. 27, s. 725

Marginal note:Definitions

 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.

  • 2018, c. 27, s. 725

Claims for Loss of Income

Marginal note:Meaning of terms

  •  (1) In this section, fish, fishing and fishing vessel have the same meaning as in section 2 of the Fisheries Act.

  • Marginal note:Definition of claimant

    (2) In this section, claimant means

    • (a) an individual who derives income from fishing, from the production, breeding, holding or rearing of fish, or from the culture or harvesting of marine plants;

    • (b) the owner of a fishing vessel who derives income from the rental of fishing vessels to holders of commercial fishing licences issued in Canada;

    • (c) an individual who derives income from the handling of fish on shore in Canada directly after they are landed from fishing vessels;

    • (d) an individual who fishes or hunts for food or animal skins for their own consumption or use;

    • (e) a person who rents or charters boats in Canada for sport fishing; or

    • (f) a worker in a fish plant in Canada, excluding a person engaged exclusively in supervisory or managerial functions, except in the case of a family-type co-operative operation that has a total annual throughput of less than 1 400 metric tons or an annual average number of employees of fewer than 50.

  • Marginal note:Filing of claim with Administrator

    (3) Subject to this section, a claimant who suffers or will suffer a loss of income, or in the case of an individual described in paragraph (2)(d), a loss of a source of food or animal skins, resulting from a discharge of oil from a ship that is not recoverable under Part 6 or any other provision of this Part may file a claim with the Administrator for that loss or future loss

    • (a) within three years after the day on which the discharge of the oil occurs or first occurred, as the case may be, or could reasonably be expected to have become known to the claimant; and

    • (b) within six years after the occurrence that causes the discharge.

  • Marginal note:Limitations

    (4) The right to file a claim under this section is limited to claimants who

    • (a) were lawfully carrying on an activity described in subsection (2); and

    • (b) except in the case of individuals described in paragraph (2)(d),

      • (i) are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, in the case of an individual, or

      • (ii) are incorporated by or under the laws of Canada or a province, in the case of a corporation.

  • Marginal note:Cause of occurrence

    (5) 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.

  • (6) [Repealed, 2018, c. 27, s. 726]

  • 2001, c. 6, s. 107
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 726

Marginal note:Administrator’s responsibility

  •  (1) On receipt of a claim filed under section 107, the Administrator shall

    • (a) if he or she considers the action appropriate for the proper administration of the Ship-source Oil Pollution Fund, direct payment to be made to the claimant of the amount of the loss alleged in the claim or otherwise agreed on between the Administrator and the claimant; or

    • (b) in any other case, transmit the claim to the Minister.

  • Marginal note:Appointment of assessors

    (2) On receipt of a claim from the Administrator under paragraph (1)(b), the Minister shall

    • (a) after consulting with the Minister of Fisheries and Oceans, the Minister of the Environment and the Administrator, appoint as assessors one or more persons not employed in the public service, as defined in subsection 3(1) of the Public Service Superannuation Act; and

    • (b) fix the remuneration and expenses to be paid to the person or persons while they are acting as assessors and authorize the Administrator to direct payment of the remuneration and expenses to them.

  • Marginal note:Assessment of loss

    (3) For the purpose of assessing a loss alleged by a claimant under section 107, an assessor or assessors, in this section referred to as “the assessor”,

    • (a) after giving reasonable notice to the Administrator and the claimant, shall meet with the Administrator and the claimant or their representatives;

    • (b) may receive and consider any written or oral evidence submitted to the assessor by or on behalf of the Administrator or the claimant, whether or not the evidence would be admissible before a court; and

    • (c) has all the powers of a commissioner under Part I of the Inquiries Act.

  • Marginal note:Report to Minister

    (4) The assessor shall, within 60 days after their appointment or within any longer period that is agreed to by the Minister, report to the Minister whether, in their opinion, the following requirements have been met:

    • (a) the loss alleged by the claimant has been established;

    • (b) the loss resulted from the discharge of oil from a ship; and

    • (c) the loss is not recoverable otherwise than under this Part.

  • Marginal note:Amount of loss

    (5) If the assessor reports that the requirements of subsection (4) have been met, the report must set out the amount of the loss as assessed by them.

  • Marginal note:Payment of assessed loss out of Fund

    (6) On receipt of the report, the Minister shall without delay forward a copy of it to the claimant and to the Administrator, who shall direct payment to be made to the claimant out of the Ship-source Oil Pollution Fund of an amount equal to the amount, if any, of the assessed loss set out in the report.

  • 2001, c. 6, s. 108
  • 2009, c. 21, s. 11

Proceedings Against the Owner of a Ship

Marginal note:Proceedings against owner of ship

  •  (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.

  • 2001, c. 6, s. 109
  • 2009, c. 21, s. 11

Emergency Funds

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

  •  (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).

  • 2001, c. 6, s. 110
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 727

Marginal note:Reimbursement of amount of emergency funds

  •  (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.

  • 2001, c. 6, s. 111
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 727

Marginal note:Claim under section 103

  •  (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)(b) is less than zero, then, unless that Minister appeals the adequacy of the offer under subsection 106(2), an amount equal to the amount of the offer 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 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)(b), then, as soon as feasible after that Minister receives 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) shall 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 amount that the Administrator assessed under paragraph 105(1)(a);
    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).
  • 2018, c. 27, s. 727

Marginal note:Interest

 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.

  • 2018, c. 27, s. 727

Marginal note:Reports

 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).

  • 2018, c. 27, s. 727

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

Marginal note:Definitions

 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)

  • 2001, c. 6, s. 112
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 728

Marginal note:Amount of levy

  •  (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.

  • 2001, c. 6, s. 113
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 729

Marginal note:Imposition and discontinuation of levy

  •  (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.

  • 2001, c. 6, s. 114
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 730

Marginal note:Amount of levy — general rules

  •  (1) For the purposes of paragraphs (2)(a) and (b), 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; and

    • (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.

  • 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; and

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

  • 2018, c. 27, s. 731

Marginal note:Additional levy

  •  (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) and (b), 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.

  • 2018, c. 27, s. 731

Marginal note:Debt due to Her Majesty

 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.

  • 2001, c. 6, s. 115
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 732

Marginal note:Claimants entitled to interest

  •  (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;

    • (b) if the claim is based on section 51 or 71 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; or

    • (c) if the claim is based on section 107, from the time when the loss of income occurs.

  • 2001, c. 6, s. 116
  • 2009, c. 21, s. 11

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

  •  (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]

  • 2001, c. 6, s. 117
  • 2009, c. 21, s. 11
  • 2014, c. 29, s. 50
  • 2018, c. 27, s. 733

Marginal note:Information returns — receivers

  •  (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:Definition of person

    (2) In subsection (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; and

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

  • Marginal note:Regulations

    (4) The Governor in Council may make regulations

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

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

  • 2018, c. 27, s. 734

Marginal note:Communication of information

  •  (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.

  • 2018, c. 27, s. 734

Marginal note:Administrator’s powers

  •  (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;

    • (b) for the purposes of subsection 117.1(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 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);

    • (b) entry to the dwelling place is necessary for the purposes of subsection 117.1(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.

  • 2018, c. 27, s. 734

Marginal note:Records — filers of information returns

  •  (1) Every person who is required to file information returns under subsection 117.1(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.

  • 2001, c. 6, s. 118
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 735

Marginal note:Power to require information

 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.

  • 2018, c. 27, s. 736

Marginal note:Inspection

  •  (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.

  • 2001, c. 6, s. 119
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 737

Governance of the Ship-source Oil Pollution Fund

Marginal note:Books of account and systems

  •  (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.

  • 2001, c. 6, s. 120
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 738

Marginal note:Annual report

  •  (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.

  • 2001, c. 6, s. 121
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 739

Marginal note:Special examination

  •  (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.

  • 2001, c. 6, s. 122
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 740

Marginal note:Report

  •  (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.

  • 2001, c. 6, s. 123
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 741

Marginal note:Right to information

  •  (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.

  • 2001, c. 6, s. 124
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 742

Regulations

Marginal note:Governor in Council

 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 paragraph 114.1(2)(b), a quantity of oil that is less than the quantity set out in that paragraph;

  • (c) exempting classes of persons from the application of paragraph 114.1(2)(a) or (b);

  • (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); and

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

  • 2001, c. 6, s. 125
  • 2009, c. 21, s. 11
  • 2014, c. 29, s. 51
  • 2018, c. 27, s. 743

PART 8General Provisions

Administration and Enforcement

Marginal note:Designated officers

  •  (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.

  • 2001, c. 6, s. 126
  • 2009, c. 21, s. 11

Marginal note:Crown not relieved

 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.

  • 2001, c. 6, s. 127
  • 2009, c. 21, s. 11

Marginal note:Powers

  •  (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.

  • 2001, c. 6, s. 128
  • 2009, c. 21, s. 11

Marginal note:Detention

  •  (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.

  • 2001, c. 6, s. 129
  • 2009, c. 21, s. 11

Marginal note:Direction to move detained ship

 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.

  • 2001, c. 6, s. 130
  • 2009, c. 21, s. 11

Administrative Monetary Penalties

Assurances of Compliance and Notices of Violation

Marginal note:Violation

  •  (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), paragraphs 114.1(2)(a) and (b), subsections 114.2(1), 117.1(1), 117.3(2) and 118(1) and (1.1), section 118.1 and subsection 129(7); and

    • (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.

  • 2018, c. 27, s. 744

Marginal note:Assurance of compliance or notice of violation

  •  (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.

  • 2018, c. 27, s. 744

Marginal note:Deemed violation

  •  (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).

  • 2018, c. 27, s. 744

Marginal note:When assurance of compliance complied with

 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.

  • 2018, c. 27, s. 744

Marginal note:When assurance of compliance not complied with

  •  (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.

  • 2018, c. 27, s. 744

Marginal note:Manner of service

  •  (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.

  • 2018, c. 27, s. 744

Marginal note:Request for review

  •  (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.

  • 2018, c. 27, s. 744

Marginal note:Return of security

 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.

  • 2018, c. 27, s. 744

Marginal note:Notice of violation — options

  •  (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.

  • 2018, c. 27, s. 744

Marginal note:Right of appeal

  •  (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.

  • 2018, c. 27, s. 744

Recovery of Debts

Marginal note:Debts due to Her Majesty

  •  (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.

  • 2018, c. 27, s. 744

Marginal note:Certificate of default

  •  (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.

  • 2018, c. 27, s. 744

General

Marginal note:Party to violation committed by corporation

 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.

  • 2018, c. 27, s. 744

Marginal note:Violation by employee or agent or mandatary

 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.

  • 2018, c. 27, s. 744

Marginal note:Limitation or prescription period

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

  • 2018, c. 27, s. 744

Marginal note:Certificate

 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.

  • 2018, c. 27, s. 744

Public Record

Marginal note:Notices of violation and of default

 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.

  • 2018, c. 27, s. 744

Marginal note:Notations removed

  •  (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.

  • 2018, c. 27, s. 744

Regulations

Marginal note:Governor in Council

 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.

  • 2018, c. 27, s. 744

Offences

Marginal note:Contraventions

 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.

  • 2001, c. 6, s. 131
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 745

Marginal note:Failure to pay

  •  (1) Every person who contravenes paragraph 114.1(2)(a) or (b) 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 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) 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.

  • 2009, c. 21, s. 11
  • 2014, c. 29, s. 54
  • 2018, c. 27, s. 745

Marginal note:Due diligence defence

 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.

  • 2018, c. 27, s. 745

Marginal note:Jurisdiction in relation to offences

 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.

  • 2009, c. 21, s. 11

Marginal note:Proof of offence

 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.

  • 2009, c. 21, s. 11

Marginal note:Limitation period

  •  (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.

  • 2009, c. 21, s. 11

Sale of Ships

Marginal note:Application by Minister

  •  (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.

  • 2009, c. 21, s. 11

Marginal note:Notice

  •  (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.

  • 2009, c. 21, s. 11

Marginal note:Payment of proceeds

  •  (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.

  • 2009, c. 21, s. 11

Maritime Lien

Definition of foreign vessel

  •  (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.

  • 2009, c. 21, s. 12

Limitation Period

Marginal note:Proceedings under maritime law

 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.

  • 2009, c. 21, s. 12

Inconsistency

Marginal note:Priority over Arctic Waters Pollution Prevention Act

 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.

  • 2009, c. 21, s. 13

Coming Into Force

Marginal note:Order in council

Footnote * Section 45 comes into force on a day to be fixed by order of the Governor in Council.

  • 2009, c. 21, s. 13

SCHEDULE 1(Section 24 and subsections 26(2) and 31(1))

PART 1

Text of Articles 1 to 15 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976

Chapter I. The Right of Limitation

Article 1
Persons entitled to limit liability

  • 1 Shipowners and salvors, as hereinafter defined, may limit their liability in accordance with the rules of this Convention for claims set out in Article 2.

  • 2 The term shipowner shall mean the owner, charterer, manager and operator of a seagoing ship.

  • 3 Salvor shall mean any person rendering services in direct connexion with salvage operations. Salvage operations shall also include operations referred to in Article 2, paragraph 1(d), (e) and (f).

  • 4 If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner or salvor is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention.

  • 5 In this Convention the liability of a shipowner shall include liability in an action brought against the vessel herself.

  • 6 An insurer of liability for claims subject to limitation in accordance with the rules of this Convention shall be entitled to the benefits of this Convention to the same extent as the assured himself.

  • 7 The act of invoking limitation of liability shall not constitute an admission of liability.

Article 2
Claims subject to limitation

  • 1 Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

    • (a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;

    • (b) claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage;

    • (c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations;

    • (d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship;

    • (e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;

    • (f) claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.

  • 2 Claims set out in paragraph 1 shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise. However, claims set out under paragraph 1(d), (e) and (f) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable.

Article 3
Claims excepted from limitation

The rules of this Convention shall not apply to:

  • (a) claims for salvage, including, if applicable, any claim for special compensation under article 14 of the International Convention on Salvage 1989, as amended, or contribution in general average;

  • (b) claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, dated 29 November 1969 or of any amendment or Protocol thereto which is in force;

  • (c) claims subject to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage;

  • (d) claims against the shipowner of a nuclear ship for nuclear damage;

  • (e) claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs, dependants or other persons entitled to make such claims, if under the law governing the contract of service between the shipowner or salvor and such servants the shipowner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in Article 6.

Article 4
Conduct barring limitation

A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.

Article 5
Counterclaims

Where a person entitled to limitation of liability under the rules of this Convention has a claim against the claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this Convention shall only apply to the balance, if any.

Chapter II. Limits of Liability

Article 6
The general limits

  • 1 The limits of liability for claims other than those mentioned in article 7, arising on any distinct occasion, shall be calculated as follows:

    • (a) in respect of claims for loss of life or personal injury,

      • (i) 3.02 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

      • (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

        for each ton from 2,001 to 30,000 tons, 1,208 Units of Account;

        for each ton from 30,001 to 70,000 tons, 906 Units of Account; and

        for each ton in excess of 70,000 tons, 604 Units of Account,

    • (b) in respect of any other claims,

      • (i) 1.51 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

      • (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

        for each ton from 2,001 to 30,000 tons, 604 Units of Account;

        for each ton from 30,001 to 70,000 tons, 453 Units of Account; and

        for each ton in excess of 70,000 tons, 302 Units of Account.

  • 2 Where the amount calculated in accordance with paragraph 1(a) is insufficient to pay the claims mentioned therein in full, the amount calculated in accordance with paragraph 1(b) shall be available for payment of the unpaid balance of claims under paragraph 1(a) and such unpaid balance shall rank rateably with claims mentioned under paragraph 1(b).

  • 3 However, without prejudice to the right of claims for loss of life or personal injury according to paragraph 2, a State Party may provide in its national law that claims in respect of damage to harbour works, basins and waterways and aids to navigation shall have such priority over other claims under paragraph 1(b) as is provided by that law.

  • 4 The limits of liability for any salvor not operating from any ship or for any salvor operating solely on the ship to or in respect of which he is rendering salvage services, shall be calculated according to a tonnage of 1,500 tons.

  • 5 For the purpose of this Convention the ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.

Article 7
The limit for passenger claims

  • 1 In respect of claims arising on any distinct occasion for loss of life or personal injury to passengers of a ship, the limit of liability of the shipowner thereof shall be an amount of 175,000 Units of Account multiplied by the number of passengers which the ship is authorized to carry according to the ship’s certificate.

  • 2 For the purpose of this Article claims for loss of life or personal injury to passengers of a ship shall mean any such claims brought by or on behalf of any person carried in that ship:

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

    • (b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods.

Article 8
Unit of Account

  • 1 The Unit of Account referred to in Articles 6 and 7 is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in Articles 6 and 7 shall be converted into the national currency of the State in which limitation is sought, according to the value of that currency at the date the limitation fund shall have been constituted, payment is made, or security is given which under the law of that State is equivalent to such payment. The value of a national currency in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of a national currency in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party.

  • 2 Nevertheless, those States which are not members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 may, at the time of signature without reservation as to ratification, acceptance or approval or at the time of ratification, acceptance, approval or accession or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in their territories shall be fixed as follows:

    • (a) in respect of article 6, paragraph 1(a) at an amount of:

      • (i) 30 million monetary units for a ship with a tonnage not exceeding 2,000 tons;

      • (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

        for each ton from 2,001 to 30,000 tons, 12,000 monetary units;

        for each ton from 30,001 to 70,000 tons, 9,000 monetary units; and

        for each ton in excess of 70,000 tons, 6,000 monetary units; and

    • (b) in respect of article 6, paragraph 1(b), at an amount of:

      • (i) 15 million monetary units for a ship with a tonnage not exceeding 2,000 tons;

      • (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

        for each ton from 2,001 to 30,000 tons, 6,000 monetary units;

        for each ton from 30,001 to 70,000 tons, 4,500 monetary units; and

        for each ton in excess of 70,000 tons, 3,000 monetary units; and

    • (c) in respect of article 7, paragraph 1, at an amount of 2,625,000 monetary units multiplied by the number of passengers which the ship is authorized to carry according to its certificate.

      Paragraphs 2 and 3 of Article 6 apply correspondingly to subparagraphs (a) and (b) of this paragraph.

  • 3 The monetary unit referred to in paragraph 2 corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the amounts referred to in paragraph 2 into the national currency shall be made according to the law of the State concerned.

  • 4 The calculation mentioned in the last sentence of paragraph 1 and the conversion mentioned in paragraph 3 shall be made in such a manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 6 and 7 as is expressed there in units of account. States Parties shall communicate to the depositary the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 3, as the case may be, at the time of the signature without reservation as to ratification, acceptance or approval, or when depositing an instrument referred to in Article 16 and whenever there is a change in either.

Article 9
Aggregation of claims

  • 1 The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion:

    • (a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose act, neglect or default he or they are responsible; or

    • (b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or

    • (c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to or in respect of which the salvage services are rendered and any person for whose act, neglect or default he or they are responsible.

  • 2 The limits of liability determined in accordance with Article 7 shall apply to the aggregate of all claims subject thereto which may arise on any distinct occasion against the person or persons mentioned in paragraph 2 of Article 1 in respect of the ship referred to in Article 7 and any person for whose act, neglect or default he or they are responsible.

Article 10
Limitation of liability without constitution of a limitation fund

  • 1 Limitation of liability may be invoked notwithstanding that a limitation fund as mentioned in Article 11 has not been constituted. However, a State Party may provide in its national law that, where an action is brought in its Courts to enforce a claim subject to limitation, a person liable may only invoke the right to limit liability if a limitation fund has been constituted in accordance with the provisions of this Convention or is constituted when the right to limit liability is invoked.

  • 2 If limitation of liability is invoked without the constitution of a limitation fund, the provisions of Article 12 shall apply correspondingly.

  • 3 Questions of procedure arising under the rules of this Article shall be decided in accordance with the national law of the State Party in which action is brought.

Chapter III. The Limitation Fund

Article 11
Constitution of the fund

  • 1 Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked.

  • 2 A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority.

  • 3 A fund constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively.

Article 12
Distribution of the fund

  • 1 Subject to the provisions of paragraphs 1, 2 and 3 of Article 6 and of Article 7, the fund shall be distributed among the claimants in proportion to their established claims against the fund.

  • 2 If, before the fund is distributed, the person liable, or his insurer, has settled a claim against the fund such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

  • 3 The right of subrogation provided for in paragraph 2 may also be exercised by persons other than those therein mentioned in respect of any amount of compensation which they may have paid, but only to the extent that such subrogation is permitted under the applicable national law.

  • 4 Where the person liable or any other person establishes that he may be compelled to pay, at a later date, in whole or in part any such amount of compensation with regard to which such person would have enjoyed a right of subrogation pursuant to paragraphs 2 and 3 had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund.

Article 13
Bar to other actions

  • 1 Where a limitation fund has been constituted in accordance with Article 11, any person having made a claim against the fund shall be barred from exercising any right in respect of such claim against any other assets of a person by or on behalf of whom the fund has been constituted.

  • 2 After a limitation fund has been constituted in accordance with Article 11, any ship or other property, belonging to a person on behalf of whom the fund has been constituted, which has been arrested or attached within the jurisdiction of a State Party for a claim which may be raised against the fund, or any security given, may be released by order of the Court or other competent authority of such State. However, such release shall always be ordered if the limitation fund has been constituted:

    • (a) at the port where the occurrence took place, or, if it took place out of port, at the first port of call thereafter; or

    • (b) at the port of disembarkation in respect of claims for loss of life or personal injury; or

    • (c) at the port of discharge in respect of damage to cargo; or

    • (d) in the State where the arrest is made.

  • 3 The rules of paragraphs 1 and 2 shall apply only if the claimant may bring a claim against the limitation fund before the Court administering that fund and the fund is actually available and freely transferable in respect of that claim.

Article 14
Governing law

Subject to the provisions of this Chapter the rules relating to the constitution and distribution of a limitation fund, and all rules of procedure in connexion therewith, shall be governed by the law of the State Party in which the fund is constituted.

Chapter IV. Scope of Application

Article 15

  • 1 This Convention shall apply whenever any person referred to in Article 1 seeks to limit his liability before the Court of a State Party or seeks to procure the release of a ship or other property or the discharge of any security given within the jurisdiction of any such State. Nevertheless, each State Party may exclude wholly or partially from the application of this Convention any person referred to in Article 1 who at the time when the rules of this Convention are invoked before the Courts of that State does not have his habitual residence in a State Party or does not have his principal place of business in a State Party or any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the flag of a State Party.

  • 2 A State Party may regulate by specific provisions of national law the system of limitation of liability to be applied to vessels which are:

    • (a) according to the law of that State, ships intended for navigation on inland waterways;

    • (b) ships of less than 300 tons.

      A State Party which makes use of the option provided for in this paragraph shall inform the depositary of the limits of liability adopted in its national legislation or of the fact that there are none.

  • 3 A State Party may regulate by specific provisions of national law the system of limitation of liability to be applied to claims arising in cases in which interests of persons who are nationals of other States Parties are in no way involved.

3bis. Notwithstanding the limit of liability prescribed in paragraph 1 of Article 7, a State Party may regulate by specific provisions of national law the system of liability to be applied to claims for loss of life or personal injury to passengers of a ship, provided that the limit of liability is not lower than that prescribed in paragraph 1 of Article 7. A State Party which makes use of the option provided for in this paragraph shall inform the Secretary-General of the limits of liability adopted or of the fact that there are none.

  • 4 The Courts of a State Party shall not apply this Convention to ships constructed for, or adapted to, and engaged in, drilling:

    • (a) when that State has established under its national legislation a higher limit of liability than that otherwise provided for in Article 6; or

    • (b) when that State has become party to an international convention regulating the system of liability in respect of such ships.

      In a case to which sub-paragraph (a) applies that State Party shall inform the depositary accordingly.

  • 5 This Convention shall not apply to:

    • (a) air-cushion vehicles;

    • (b) floating platforms constructed for the purpose of exploring or exploiting the natural resources of the sea-bed or the subsoil thereof.

PART 2

Text of Article 18 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976, and of Articles 8 and 9 of that Protocol

Article 18
Reservations

  • 1 Any State may, at the time of signature, ratification, acceptance, approval or accession, or at any time thereafter, reserve the right:

    • (a) to exclude the application of article 2, paragraphs 1(d) and (e);

    • (b) to exclude claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any amendment or Protocol thereto.

      No other reservations shall be admissible to the substantive provisions of this Convention.

  • 2 Reservations made at the time of signature are subject to confirmation upon ratification, acceptance or approval.

  • 3 Any State which has made a reservation to this Convention may withdraw it at any time by means of a notification addressed to the Secretary-General. Such withdrawal shall take effect on the date the notification is received. If the notification states that the withdrawal of a reservation is to take effect on a date specified therein, and such date is later than the date the notification is received by the Secretary-General, the withdrawal shall take effect on such later date.

Article 8
Amendment of limits

  • 1 Upon the request of at least one half, but in no case less than six, of the States Parties to this Protocol, any proposal to amend the limits specified in article 6, paragraph 1, article 7, paragraph 1 and article 8, paragraph 2 of the Convention as amended by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States.

  • 2 Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization (the Legal Committee) for consideration at a date at least six months after the date of its circulation.

  • 3 All Contracting States to the Convention as amended by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

  • 4 Amendments shall be adopted by a two-thirds majority of the Contracting States to the Convention as amended by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States to the Convention as amended by this Protocol shall be present at the time of voting.

  • 5 When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and, in particular, the amount of damage resulting therefrom, changes in the monetary values and the effect of the proposed amendment on the cost of insurance.

  • 6
    • (a) No amendment of the limits under this article may be considered less than five years from the date on which this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this article.

    • (b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature.

    • (c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol multiplied by three.

  • 7 Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one-fourth of the States that were Contracting States at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect.

  • 8 An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.

  • 9 All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with paragraphs 1 and 2 of article 12 at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

  • 10 When an amendment has been adopted but the eighteen-month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

Article 9

  • 1 The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.

  • 2 A State which is Party to this Protocol but not a Party to the Convention shall be bound by the provisions of the Convention as amended by this Protocol in relation to other States Parties hereto, but shall not be bound by the provisions of the Convention in relation to States Parties only to the Convention.

  • 3 The Convention as amended by this Protocol shall apply only to claims arising out of occurrences which take place after the entry into force for each State of this Protocol.

  • 4 Nothing in this Protocol shall affect the obligations of a State which is a Party both to the Convention and to this Protocol with respect to a State which is a Party to the Convention but not a Party to this Protocol.

PART 3

Text of reservations made under Article 18 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976

  • 1 Claims in respect of the raising, removal, destruction or rendering harmless of a ship that is sunk, wrecked, stranded or abandoned, including anything that is or has been on board that ship.

  • 2001, c. 6, Sch. 1
  • 2009, c. 21, ss. 14, 15
  • SOR/2015-98

SCHEDULE 2(Sections 35 and 40)

PART 1

Text of Articles 1 to 22 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as amended by the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

Article 1
Definitions

In this Convention the following expressions have the meaning hereby assigned to them:

  • 1. (a) carrier means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by him or by a performing carrier;

    • (b) performing carrier means a person other than the carrier, being the owner, charterer or operator of a ship, who actually performs the whole or a part of the carriage;

  • 2 contract of carriage means a contract made by or on behalf of a carrier for the carriage by sea of a passenger or of a passenger and his luggage, as the case may be;

  • 3 ship means only a seagoing vessel, excluding an air-cushion vehicle;

  • 4 passenger means any person carried in a ship,

    • (a) under a contract of carriage, or

    • (b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods not governed by this Convention;

  • 5 luggage means any article or vehicle carried by the carrier under a contract of carriage, excluding:

    • (a) articles and vehicles carried under a charter party, bill of lading or other contract primarily concerned with the carriage of goods, and

    • (b) live animals;

  • 6 cabin luggage means luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Except for the application of paragraph 8 of this Article and Article 8, cabin luggage includes luggage which the passenger has in or on his vehicle;

  • 7 loss of or damage to luggage includes pecuniary loss resulting from the luggage not having been re-delivered to the passenger within a reasonable time after the arrival of the ship on which the luggage has been or should have been carried, but does not include delays resulting from labour disputes;

  • 8 carriage covers the following periods:

    • (a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation;

    • (b) with regard to cabin luggage, also the period during which the passenger is in a marine terminal or station or on a quay or in or on any other port installation if that luggage has been taken over by the carrier or his servant or agent and has not been re-delivered to the passenger;

    • (c) with regard to other luggage which is not cabin luggage, the period from the time of its taking over by the carrier or his servant or agent on shore or on board until the time of its re-delivery by the carrier or his servant or agent;

  • 9 international carriage means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State;

  • 10 Organization means the International Maritime Organization.

Article 2
Application

  • 1 This Convention shall apply to any international carriage if:

    • (a) the ship is flying the flag of or is registered in a State Party to this Convention, or

    • (b) the contract of carriage has been made in a State Party to this Convention, or

    • (c) the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

  • 2 Notwithstanding paragraph 1 of this Article, this Convention shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another mode of transport, to a civil liability regime under the provisions of such convention, in so far as those provisions have mandatory application to carriage by sea.

Article 3
Liability of the carrier

  • 1 The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.

  • 2 The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or damage, shall lie with the claimant.

  • 3 Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connexion with the shipwreck, collision, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant.

Article 4
Performing carrier

  • 1 If the performance of the carriage or part thereof has been entrusted to a performing carrier, the carrier shall nevertheless remain liable for the entire carriage according to the provisions of this Convention. In addition, the performing carrier shall be subject and entitled to the provisions of this Convention for the part of the carriage performed by him.

  • 2 The carrier shall, in relation to the carriage performed by the performing carrier, be liable for the acts and omissions of the performing carrier and of his servants or agents acting within the scope of their employment.

  • 3 Any special agreement under which the carrier assumes obligations not imposed by this Convention or any waiver of rights conferred by this Convention shall affect the performing carrier only if agreed by him expressly and in writing.

  • 4 Where and to the extent that both the carrier and the performing carrier are liable, their liability shall be joint and several.

  • 5 Nothing in this Article shall prejudice any right of recourse as between the carrier and the performing carrier.

Article 5
Valuables

The carrier shall not be liable for the loss of or damage to monies, negotiable securities, gold, silverware, jewellery, ornaments, works of art, or other valuables, except where such valuables have been deposited with the carrier for the agreed purpose of safe-keeping in which case the carrier shall be liable up to the limit provided for in paragraph 3 of Article 8 unless a higher limit is agreed upon in accordance with paragraph 1 of Article 10.

Article 6
Contributory fault

If the carrier proves that the death of or personal injury to a passenger or the loss of or damage to his luggage was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of the law of that court.

Article 7
Limit of liability for personal injury

  • 1 The liability of the carrier for the death of or personal injury to a passenger shall in no case exceed 175,000 units of account per carriage. Where, in accordance with the law of the court seized of the case, damages are awarded in the form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit.

  • 2 Notwithstanding paragraph 1 of this Article, the national law of any State Party to this Convention may fix, as far as carriers who are nationals of such State are concerned, a higher per capita limit of liability.

Article 8
Limit of liability for loss of or damage to luggage

  • 1 The liability of the carrier for the loss of or damage to cabin luggage shall in no case exceed 1,800 units of account per passenger, per carriage.

  • 2 The liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle shall in no case exceed 10,000 units of account per vehicle, per carriage.

  • 3 The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 of this article shall in no case exceed 2,700 units of account per passenger, per carriage.

  • 4 The carrier and the passenger may agree that the liability of the carrier shall be subject to a deductible not exceeding 300 units of account in the case of damage to a vehicle and not exceeding 135 units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage.

Article 9
Unit of account and conversion

  • 1 The unit of account mentioned in this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in article 7, paragraph 1, and article 8 shall be converted into the national currency of the State of the court seized of the case on the basis of the value of that currency by reference to the Special Drawing Right on the date of the judgment or the date agreed upon by the parties. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party.

  • 2 Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this article may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 1 shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five-and-a-half milligrammes of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.

  • 3 The calculation mentioned in the last sentence of paragraph 1, and the conversion mentioned in paragraph 2 shall be made in such a manner as to express in the national currency of the States Parties, as far as possible, the same real value for the amounts in article 7, paragraph 1, and article 8 as would result from the application of the first three sentences of paragraph 1. States shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 2, as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

Article 10
Supplementary provisions on limits of liability

  • 1 The carrier and the passenger may agree, expressly and in writing, to higher limits of liability than those prescribed in Articles 7 and 8.

  • 2 Interest on damages and legal costs shall not be included in the limits of liability prescribed in Articles 7 and 8.

Article 11
Defences and limits for carriers’ servants

If an action is brought against a servant or agent of the carrier or of the performing carrier arising out of a damage covered by this Convention, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the defences and limits of liability which the carrier or the performing carrier is entitled to invoke under this Convention.

Article 12
Aggregation of claims

  • 1 Where the limits of liability prescribed in Articles 7 and 8 take effect, they shall apply to the aggregate of the amounts recoverable in all claims arising out of the death of or personal injury to any one passenger or the loss of or damage to his luggage.

  • 2 In relation to the carriage performed by a performing carrier, the aggregate of the amounts recoverable from the carrier and the performing carrier and from their servants and agents acting within the scope of their employment shall not exceed the highest amount which could be awarded against either the carrier or the performing carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.

  • 3 In any case where a servant or agent of the carrier or of the performing carrier is entitled under Article 11 of this Convention to avail himself of the limits of liability prescribed in Articles 7 and 8, the aggregate of the amounts recoverable from the carrier, or the performing carrier as the case may be, and from that servant or agent, shall not exceed those limits.

Article 13
Loss of right to limit liability

  • 1 The carrier shall not be entitled to the benefit of the limits of liability prescribed in Articles 7 and 8 and paragraph 1 of Article 10, if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

  • 2 The servant or agent of the carrier or of the performing carrier shall not be entitled to the benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

Article 14
Basis for claims

No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.

Article 15
Notice of loss or damage to luggage

  • 1 The passenger shall give written notice to the carrier or his agent:

    • (a) in the case of apparent damage to luggage:

      • (i) for cabin luggage, before or at the time of disembarkation of the passenger;

      • (ii) for all other luggage, before or at the time of its re-delivery;

    • (b) in the case of damage to luggage which is not apparent, or loss of luggage, within fifteen days from the date of disembarkation or re-delivery or from the time when such re-delivery should have taken place.

  • 2 If the passenger fails to comply with this Article, he shall be presumed, unless the contrary is proved, to have received the luggage undamaged.

  • 3 The notice in writing need not be given if the condition of the luggage has at the time of its receipt been the subject of joint survey or inspection.

Article 16
Time-bar for actions

  • 1 Any action for damages arising out of the death of or personal injury to a passenger or of the loss of or damage to luggage shall be time-barred after a period of two years.

  • 2 The limitation period shall be calculated as follows:

    • (a) in the case of personal injury, from the date of disembarkation of the passenger;

    • (b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;

    • (c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.

  • 3 The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later.

  • 4 Notwithstanding paragraphs 1, 2 and 3 of this Article, the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.

Article 17
Competent jurisdiction

  • 1 An action arising under this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention:

    • (a) the court of the place of permanent residence or principal place of business of the defendant, or

    • (b) the court of the place of departure or that of the destination according to the contract of carriage, or

    • (c) a court of the State of the domicile or permanent residence of the claimant, if the defendant has a place of business and is subject to jurisdiction in that State, or

    • (d) a court of the State where the contract of carriage was made, if the defendant has a place of business and is subject to jurisdiction in that State.

  • 2 After the occurrence of the incident which has caused the damage, the parties may agree that the claim for damages shall be submitted to any jurisdiction or to arbitration.

Article 18
Invalidity of contractual provisions

Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to his luggage, purporting to relieve the carrier of his liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in paragraph 4 of Article 8, and any such provision purporting to shift the burden of proof which rests on the carrier, or having the effect of restricting the option specified in paragraph 1 of Article 17, shall be null and void, but the nullity of that provision shall not render void the contract of carriage which shall remain subject to the provisions of this Convention.

Article 19
Other conventions on limitation of liability

This Convention shall not modify the rights or duties of the carrier, the performing carrier, and their servants or agents provided for in international conventions relating to the limitation of liability of owners of seagoing ships.

Article 20
Nuclear damage

No liability shall arise under this Convention for damage caused by a nuclear incident:

  • (a) if the operator of a nuclear installation is liable for such damage under either the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by its additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or

  • (b) if the operator of a nuclear installation is liable for such damage by virtue of a national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions.

Article 21
Commercial carriage by public authorities

This Convention shall apply to commercial carriage undertaken by States or Public Authorities under contracts of carriage within the meaning of Article 1.

Article 22
Declaration of non-application

  • 1 Any Party may at the time of signing, ratifying, accepting, approving or acceding to this Convention, declare in writing that it will not give effect to this Convention when the passenger and the carrier are subjects or nationals of that Party.

  • 2 Any declaration made under paragraph 1 of this Article may be withdrawn at any time by a notification in writing to the Secretary-General of the Organization.

PART 2

Text of Articles III and VIII of the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

Article III

  • 1 The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.

  • 2 A State which is a Party to this Protocol but not a Party to the Convention shall be bound by the provisions of the Convention as amended by this Protocol in relation to other States Parties hereto, but shall not be bound by the provisions of the Convention in relation to States Parties only to the Convention.

  • 3 Nothing in this Protocol shall affect the obligations of a State which is a Party both to the Convention and to this Protocol with respect to a State which is a Party to the Convention but not a Party to this Protocol.

Article VIII
Amendment of limits

  • 1 Upon the request of at least one half, but in no case less than six, of the States Parties to this Protocol, any proposal to amend the limits, including the deductibles, specified in article 7, paragraph 1, and article 8 of the Convention as amended by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States.

  • 2 Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization (hereinafter referred to as “the Legal Committee”) for consideration at a date at least six months after the date of its circulation.

  • 3 All Contracting States to the Convention as amended by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

  • 4 Amendments shall be adopted by a two-thirds majority of the Contracting States to the Convention as amended by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States to the Convention as amended by this Protocol shall be present at the time of voting.

  • 5 When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and, in particular, the amount of damage resulting therefrom, changes in the monetary values and the effect of the proposed amendment on the cost of insurance.

  • 6
    • (a) No amendment of the limits under this article may be considered less than five years from the date on which this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this article.

    • (b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature.

    • (c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol multiplied by three.

  • 7 Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one fourth of the States that were Contracting States at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect.

  • 8 An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.

  • 9 All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with paragraphs 1 and 2 of article VI at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

  • 10 When an amendment has been adopted but the eighteen-month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

  • 2001, c. 6, Sch. 2
  • 2009, c. 21, s. 16

SCHEDULE 3(Section 41)Hague-Visby Rules

Article I
Definitions

In these Rules the following expressions have the meanings hereby assigned to them respectively, that is to say,

  • (a) carrier includes the owner or the charterer who enters into a contract of carriage with a shipper;

  • (b) contract of carriage applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by water, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter-party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same;

  • (c) goods includes goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried;

  • (d) ship means any vessel used for the carriage of goods by water;

  • (e) carriage of goods covers the period from the time when the goods are loaded on to the time they are discharged from the ship.

Article II
Risks

Subject to the provisions of Article VI, under every contract of carriage of goods by water the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth.

Article III
Responsibilities and Liabilities

  • 1 The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to

    • (a) make the ship seaworthy;

    • (b) properly man, equip and supply the ship;

    • (c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

  • 2 Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.

  • 3 After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things

    • (a) the leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage;

    • (b) either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper;

    • (c) the apparent order and condition of the goods:

    Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.

  • 4 Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3(a), (b) and (c).

However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith.

  • 5 The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.

  • 6 Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

    The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.

    Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.

    In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.

  • 6 bis An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.

  • 7 After the goods are loaded the bill of lading to be issued by the carrier, master or agent of the carrier, to the shipper shall, if the shipper so demands, be a “shipped” bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods, he shall surrender the same as against the issue of the “shipped” bill of lading, but at the option of the carrier such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this Article be deemed to constitute a “shipped” bill of lading.

  • 8 Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect.

    A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability.

Article IV
Rights and Immunities

  • 1 Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III.

    Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.

  • 2 Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from

    • (a) act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship;

    • (b) fire, unless caused by the actual fault or privity of the carrier;

    • (c) perils, dangers and accidents of the sea or other navigable waters;

    • (d) act of God;

    • (e) act of war;

    • (f) act of public enemies;

    • (g) arrest or restraint of princes, rulers or people, or seizure under legal process;

    • (h) quarantine restrictions;

    • (i) act or omission of the shipper or owner of the goods, his agent or representative;

    • (j) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;

    • (k) riots and civil commotions;

    • (l) saving or attempting to save life or property at sea;

    • (m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods;

    • (n) insufficiency of packing;

    • (o) insufficiency or inadequacy of marks;

    • (p) latent defects not discoverable by due diligence;

    • (q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

  • 3 The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.

  • 4 Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.

  • 5
    • (a) Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher.

    • (b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged.

      The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.

    • (c) Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit.

    • (d) The unit of account mentioned in this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in sub-paragraph (a) of this paragraph shall be converted into national currency on the basis of the value of that currency on the date to be determined by the law of the Court seized of the case. The value of the national currency, in terms of the Special Drawing Right, of a State which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.

      Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of the preceding sentences may, at the time of ratification of the Protocol of 1979 or accession thereto or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in its territory shall be fixed as follows:

      • (i) in respect of the amount of 666.67 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 10,000 monetary units;

      • (ii) in respect of the amount of 2 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 30 monetary units.

      The monetary unit referred to in the preceding sentence corresponds to 65.5 milligrammes of gold of millesimal fineness 900. The conversion of the amounts specified in that sentence into the national currency shall be made according to the law of the State concerned. The calculation and the conversion mentioned in the preceding sentences shall be made in such a manner as to express in the national currency of that State as far as possible the same real value for the amounts in sub-paragraph (a) of paragraph 5 of this Article as is expressed there in units of account.

      States shall communicate to the depositary the manner of calculation or the result of the conversion as the case may be, when depositing an instrument of ratification of the Protocol of 1979 or of accession thereto and whenever there is a change in either.

    • (e) Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result.

    • (f) The declaration mentioned in sub-paragraph (a) of this paragraph, if embodied in the bill of lading, shall be prima facie evidence, but shall not be binding or conclusive on the carrier.

    • (g) By agreement between the carrier, master or agent of the carrier and the shipper other maximum amounts than those mentioned in sub-paragraph (a) of this paragraph may be fixed, provided that no maximum amount so fixed shall be less than the appropriate maximum mentioned in that sub-paragraph.

    • (h) Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly mis-stated by the shipper in the bill of lading.

  • 6 Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment.

    If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any.

Article IV bis
Application of Defences and Limits of Liability

  • 1 The defences and limits of liability provided for in these Rules shall apply in any action against the carrier in respect of loss or damage to goods covered by a contract of carriage whether the action be founded in contract or in tort.

  • 2 If such an action is brought against a servant or agent of the carrier (such servant or agent not being an independent contractor), such servant or agent shall be entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under these Rules.

  • 3 The aggregate of the amounts recoverable from the carrier, and such servants and agents, shall in no case exceed the limit provided for in these Rules.

  • 4 Nevertheless, a servant or agent of the carrier shall not be entitled to avail himself of the provisions of this Article, if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

Article V
Surrender of Rights and Immunities, and Increase of Responsibilities and Liabilities

A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and liabilities under the Rules contained in any of these Articles, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper.

The provisions of these Rules shall not be applicable to charter-parties, but if bills of lading are issued in the case of a ship under a charter-party they shall comply with the terms of these Rules. Nothing in these Rules shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average.

Article VI
Special Conditions

Notwithstanding the provisions of the preceding Articles, a carrier, master or agent of the carrier and a shipper shall in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by water, provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non-negotiable document and shall be marked as such.

Any agreement so entered into shall have full legal effect.

Provided that this Article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.

Article VII
Limitations on the Application of the Rules

Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by water.

Article VIII
Limitation of Liability

The provisions of these Rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of owners of vessels.

Article IX
Liability for Nuclear Damage

These Rules shall not affect the provisions of any international Convention or national law governing liability for nuclear damage.

Article X
Application

The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if:

  • (a) the bill of lading is issued in a Contracting State, or

  • (b) the carriage is from a port in a Contracting State, or

  • (c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract,

    whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person.

SCHEDULE 4(Section 41)Hamburg Rules

United Nations Convention on the Carriage of Goods by Sea, 1978

Preamble

THE STATES PARTIES TO THIS CONVENTION,

HAVING RECOGNIZED the desirability of determining by agreement certain rules relating to the carriage of goods by sea,

HAVE DECIDED to conclude a Convention for this purpose and have thereto agreed as follows:

PART I
General Provisions

Article 1
Definitions

In this Convention:

  • 1 Carrier means any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper.

  • 2 Actual carrier means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted.

  • 3 Shipper means any person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier, or any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in relation to the contract of carriage by sea.

  • 4 Consignee means the person entitled to take delivery of the goods.

  • 5 Goods includes live animals; where the goods are consolidated in a container, pallet or similar article of transport or where they are packed, goods includes such article of transport or packaging if supplied by the shipper.

  • 6 Contract of carriage by sea means any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another; however, a contract which involves carriage by sea and also carriage by some other means is deemed to be a contract of carriage by sea for the purposes of this Convention only in so far as it relates to the carriage by sea.

  • 7 Bill of lading means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking.

  • 8 Writing includes, inter alia, telegram and telex.

Article 2
Scope of application

  • 1 The provisions of this Convention are applicable to all contracts of carriage by sea between two different States, if:

    • (a) the port of loading as provided for in the contract of carriage by sea is located in a Contracting State, or

    • (b) the port of discharge as provided for in the contract of carriage by sea is located in a Contracting State, or

    • (c) one of the optional ports of discharge provided for in the contract of carriage by sea is the actual port of discharge and such port is located in a Contracting State, or

    • (d) the bill of lading or other document evidencing the contract of carriage by sea is issued in a Contracting State, or

    • (e) the bill of lading or other document evidencing the contract of carriage by sea provides that the provisions of this Convention or the legislation of any State giving effect to them are to govern the contract.

  • 2 The provisions of this Convention are applicable without regard to the nationality of the ship, the carrier, the actual carrier, the shipper, the consignee or any other interested person.

  • 3 The provisions of this Convention are not applicable to charter-parties. However, where a bill of lading is issued pursuant to a charter-party, the provisions of the Convention apply to such a bill of lading if it governs the relation between the carrier and the holder of the bill of lading, not being the charterer.

  • 4 If a contract provides for future carriage of goods in a series of shipments during an agreed period, the provisions of this Convention apply to each shipment. However, where a shipment is made under a charter-party, the provisions of paragraph 3 of this article apply.

Article 3
Interpretation of the Convention

In the interpretation and application of the provisions of this Convention regard shall be had to its international character and to the need to promote uniformity.

PART II
Liability of the Carrier

Article 4
Period of responsibility

  • 1 The responsibility of the carrier for the goods under this Convention covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge.

  • 2 For the purpose of paragraph 1 of this article, the carrier is deemed to be in charge of the goods

    • (a) from the time he has taken over the goods from:

      • (i) the shipper, or a person acting on his behalf; or

      • (ii) an authority or other third party to whom, pursuant to law or regulations applicable at the port of loading, the goods must be handed over for shipment;

    • (b) until the time he has delivered the goods:

      • (i) by handing over the goods to the consignee; or

      • (ii) in cases where the consignee does not receive the goods from the carrier, by placing them at the disposal of the consignee in accordance with the contract or with the law or with the usage of the particular trade, applicable at the port of discharge; or

      • (iii) by handing over the goods to an authority or other third party to whom, pursuant to law or regulations applicable at the port of discharge, the goods must be handed over.

  • 3 In paragraphs 1 and 2 of this article, reference to the carrier or to the consignee means, in addition to the carrier or the consignee, the servants or agents, respectively of the carrier or the consignee.

Article 5
Basis of liability

  • 1 The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in article 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.

  • 2 Delay in delivery occurs when the goods have not been delivered at the port of discharge provided for in the contract of carriage by sea within the time expressly agreed upon or, in the absence of such agreement, within the time which it would be reasonable to require of a diligent carrier, having regard to the circumstances of the case.

  • 3 The person entitled to make a claim for the loss of goods may treat the goods as lost if they have not been delivered as required by article 4 within 60 consecutive days following the expiry of the time for delivery according to paragraph 2 of this article.

  • 4. (a) The carrier is liable

    • (i) for loss of or damage to the goods or delay in delivery caused by fire, if the claimant proves that the fire arose from fault or neglect on the part of the carrier, his servants or agents;

    • (ii) for such loss, damage or delay in delivery which is proved by the claimant to have resulted from the fault or neglect of the carrier, his servants or agents, in taking all measures that could reasonably be required to put out the fire and avoid or mitigate its consequences.

    • (b) In case of fire on board the ship affecting the goods, if the claimant or the carrier so desires, a survey in accordance with shipping practices must be held into the cause and circumstances of the fire, and a copy of the surveyor’s report shall be made available on demand to the carrier and the claimant.

  • 5 With respect to live animals, the carrier is not liable for loss, damage or delay in delivery resulting from any special risks inherent in that kind of carriage. If the carrier proves that he has complied with any special instructions given to him by the shipper respecting the animals and that, in the circumstances of the case, the loss, damage or delay in delivery could be attributed to such risks, it is presumed that the loss, damage or delay in delivery was so caused, unless there is proof that all or a part of the loss, damage or delay in delivery resulted from fault or neglect on the part of the carrier, his servants or agents.

  • 6 The carrier is not liable, except in general average, where loss, damage or delay in delivery resulted from measures to save life or from reasonable measures to save property at sea.

  • 7 Where fault or neglect on the part of the carrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery the carrier is liable only to the extent that the loss, damage or delay in delivery is attributable to such fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto.

Article 6
Limits of liability

  • 1. (a) The liability of the carrier for loss resulting from loss of or damage to goods according to the provisions of article 5 is limited to an amount equivalent to 835 units of account per package or other shipping unit or 2.5 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher.

    • (b) The liability of the carrier for delay in delivery according to the provisions of article 5 is limited to an amount equivalent to two and a half times the freight payable for the goods delayed, but not exceeding the total freight payable under the contract of carriage of goods by sea.

    • (c) In no case shall the aggregate liability of the carrier, under both subparagraphs (a) and (b) of this paragraph, exceed the limitation which would be established under subparagraph (a) of this paragraph for total loss of the goods with respect to which such liability was incurred.

  • 2 For the purpose of calculating which amount is the higher in accordance with paragraph 1(a) of this article, the following rules apply:

    • (a) Where a container, pallet or similar article of transport is used to consolidate goods, the package or other shipping units enumerated in the bill of lading, if issued, or otherwise in any other document evidencing the contract of carriage by sea, as packed in such article of transport are deemed packages or shipping units. Except as aforesaid the goods in such article of transport are deemed one shipping unit.

    • (b) In cases where the article of transport itself has been lost or damaged, that article of transport, if not owned or otherwise supplied by the carrier, is considered one separate shipping unit.

  • 3 Unit of account means the unit of account mentioned in article 26.

  • 4 By agreement between the carrier and the shipper, limits of liability exceeding those provided for in paragraph 1 may be fixed.

Article 7
Application to non-contractual claims

  • 1 The defences and limits of liability provided for in this Convention apply in any action against the carrier in respect of loss or damage to the goods covered by the contract of carriage by sea, as well as of delay in delivery whether the action is founded in contract, in tort or otherwise.

  • 2 If such an action is brought against a servant or agent of the carrier, such servant or agent, if he proves that he acted within the scope of his employment, is entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under this Convention.

  • 3 Except as provided in article 8, the aggregate of the amounts recoverable from the carrier and from any persons referred to in paragraph 2 of this article shall not exceed the limits of liability provided for in this Convention.

Article 8
Loss of right to limit responsibility

  • 1 The carrier is not entitled to the benefit of the limitation of liability provided for in article 6 if it is proved that the loss, damage or delay in delivery resulted from an act or omission of the carrier done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.

  • 2 Notwithstanding the provisions of paragraph 2 of article 7, a servant or agent of the carrier is not entitled to the benefit of the limitation of liability provided for in article 6 if it is proved that the loss, damage or delay in delivery resulted from an act or omission of such servant or agent, done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.

Article 9
Deck cargo

  • 1 The carrier is entitled to carry the goods on deck only if such carriage is in accordance with an agreement with the shipper or with the usage of the particular trade or is required by statutory rules or regulations.

  • 2 If the carrier and the shipper have agreed that the goods shall or may be carried on deck, the carrier must insert in the bill of lading or other document evidencing the contract of carriage by sea a statement to that effect. In the absence of such a statement the carrier has the burden of proving that an agreement for carriage on deck has been entered into; however, the carrier is not entitled to invoke such an agreement against a third party, including a consignee, who has acquired the bill of lading in good faith.

  • 3 Where the goods have been carried on deck contrary to the provisions of paragraph 1 of this article or where the carrier may not under paragraph 2 of this article invoke an agreement for carriage on deck, the carrier, notwithstanding the provisions of paragraph 1 of article 5, is liable for loss of or damage to the goods, as well as for delay in delivery, resulting solely from the carriage on deck, and the extent of his liability is to be determined in accordance with the provisions of article 6 or article 8 of this Convention, as the case may be.

  • 4 Carriage of goods on deck contrary to express agreement for carriage under deck is deemed to be an act or omission of the carrier within the meaning of article 8.

Article 10
Liability of the carrier and actual carrier

  • 1 Where the performance of the carriage or part thereof has been entrusted to an actual carrier, whether or not in pursuance of a liberty under the contract of carriage by sea to do so, the carrier nevertheless remains responsible for the entire carriage according to the provisions of this Convention. The carrier is responsible, in relation to the carriage performed by the actual carrier, for the acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment.

  • 2 All the provisions of this Convention governing the responsibility of the carrier also apply to the responsibility of the actual carrier for the carriage performed by him. The provisions of paragraphs 2 and 3 of article 7 and of paragraph 2 of article 8 apply if an action is brought against a servant or agent of the actual carrier.

  • 3 Any special agreement under which the carrier assumes obligations not imposed by this Convention or waives rights conferred by this Convention affects the actual carrier only if agreed to by him expressly and in writing. Whether or not the actual carrier has so agreed, the carrier nevertheless remains bound by the obligations or waivers resulting from such special agreement.

  • 4 Where and to the extent that both the carrier and the actual carrier are liable, their liability is joint and several.

  • 5 The aggregate of the amounts recoverable from the carrier, the actual carrier and their servants and agents shall not exceed the limits of liability provided for in this Convention.

  • 6 Nothing in this article shall prejudice any right of recourse as between the carrier and the actual carrier.

Article 11
Through carriage

  • 1 Notwithstanding the provisions of paragraph 1 of article 10, where a contract of carriage by sea provides explicitly that a specified part of the carriage covered by the said contract is to be performed by a named person other than the carrier, the contract may also provide that the carrier is not liable for loss, damage or delay in delivery caused by an occurrence which takes place while the goods are in the charge of the actual carrier during such part of the carriage. Nevertheless, any stipulation limiting or excluding such liability is without effect if no judicial proceedings can be instituted against the actual carrier in a court competent under paragraph 1 or 2 of article 21. The burden of proving that any loss, damage or delay in delivery has been caused by such an occurrence rests upon the carrier.

  • 2 The actual carrier is responsible in accordance with the provisions of paragraph 2 of article 10 for loss, damage or delay in delivery caused by an occurrence which takes place while the goods are in his charge.

PART III
Liability of the Shipper

Article 12
General rule

The shipper is not liable for loss sustained by the carrier or the actual carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on his part.

Article 13
Special rules on dangerous goods

  • 1 The shipper must mark or label in a suitable manner dangerous goods as dangerous.

  • 2 Where the shipper hands over dangerous goods to the carrier or an actual carrier, as the case may be, the shipper must inform him of the dangerous character of the goods and, if necessary, of the precautions to be taken. If the shipper fails to do so and such carrier or actual carrier does not otherwise have knowledge of their dangerous character:

    • (a) the shipper is liable to the carrier and any actual carrier for the loss resulting from the shipment of such goods, and

    • (b) the goods may at any time be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation.

  • 3 The provisions of paragraph 2 of this article may not be invoked by any person if during the carriage he has taken the goods in his charge with knowledge of their dangerous character.

  • 4 If, in cases where the provisions of paragraph 2, subparagraph (b), of this article do not apply or may not be invoked, dangerous goods become an actual danger to life or property, they may be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation except where there is an obligation to contribute in general average or where the carrier is liable in accordance with the provisions of article 5.

PART IV
Transport Documents

Article 14
Issue of bill of lading

  • 1 When the carrier or the actual carrier takes the goods in his charge, the carrier must, on demand of the shipper, issue to the shipper a bill of lading.

  • 2 The bill of lading may be signed by a person having authority from the carrier. A bill of lading signed by the master of the ship carrying the goods is deemed to have been signed on behalf of the carrier.

  • 3 The signature on the bill of lading may be in handwriting, printed in facsimile, perforated, stamped, in symbols, or made by an other mechanical or electronic means, if not inconsistent with the law of the country where the bill of lading is issued.

Article 15
Contents of bill of lading

  • 1 The bill of lading must include, inter alia, the following particulars:

    • (a) the general nature of the goods, the leading marks necessary for identification of the goods, an express statement, if applicable, as to the dangerous character of the goods, the number of packages or pieces, and the weight of the goods or their quantity otherwise expressed, all such particulars as furnished by the shipper;

    • (b) the apparent condition of the goods;

    • (c) the name and principal place of business of the carrier;

    • (d) the name of the shipper;

    • (e) the consignee if named by the shipper;

    • (f) the port of loading under the contract of carriage by sea and the date on which the goods were taken over by the carrier at the port of loading;

    • (g) the port of discharge under the contract of carriage by sea;

    • (h) the number of originals of the bill of lading, if more than one;

    • (i) the place of issuance of the bill of lading;

    • (j) the signature of the carrier or a person acting on his behalf;

    • (k) the freight to the extent payable by the consignee or other indication that freight is payable by him;

    • (l) the statement referred to in paragraph 3 of article 23;

    • (m) the statement, if applicable, that the goods shall or may be carried on deck;

    • (n) the date or the period of delivery of the goods at the port of discharge if expressly agreed upon between the parties; and

    • (o) any increased limit or limits of liability where agreed in accordance with paragraph 4 of article 6.

  • 2 After the goods have been loaded on board, if the shipper so demands, the carrier must issue to the shipper a “shipped” bill of lading which, in addition to the particulars required under paragraph 1 of this article, must state that the goods are on board a named ship or ships, and the date or dates of loading. If the carrier has previously issued to the shipper a bill of lading or other document of title with respect to any of such goods, on request of the carrier, the shipper must surrender such document in exchange for a “shipped” bill of lading. The carrier may amend any previously issued document in order to meet the shipper’s demand for a “shipped” bill of lading if, as amended, such document includes all the information required to be contained in a “shipped” bill of lading.

  • 3 The absence in the bill of lading of one or more particulars referred to in this article does not affect the legal character of the document as a bill of lading provided that it nevertheless meets the requirements set out in paragraph 7 of article 1.

Article 16
Bills of lading: reservations and evidentiary effect

  • 1 If the bill of lading contains particulars concerning the general nature, leading marks, number of packages or pieces, weight or quantity of the goods which the carrier or other person issuing the bill of lading on his behalf knows or has reasonable grounds to suspect do not accurately represent the goods actually taken over or, where a “shipped” bill of lading is issued, loaded, or if he had no reasonable means of checking such particulars, the carrier or such other person must insert in the bill of lading a reservation specifying these inaccuracies, grounds of suspicion or the absence of reasonable means of checking.

  • 2 If the carrier or other person issuing the bill of lading on his behalf fails to note on the bill of lading the apparent condition of the goods, he is deemed to have noted on the bill of lading that the goods were in apparent good condition.

  • 3 Except for particulars in respect of which and to the extent to which a reservation permitted under paragraph 1 of this article has been entered:

    • (a) the bill of lading is prima facie evidence of the taking over or, where a “shipped” bill of lading is issued, loading, by the carrier of the goods as described in the bill of lading; and

    • (b) proof to the contrary by the carrier is not admissible if the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance on the description of the goods therein.

  • 4 A bill of lading which does not, as provided in paragraph 1, subparagraph (k) of article 15, set forth the freight or otherwise indicate that freight is payable by the consignee or does not set forth demurrage incurred at the port of loading payable by the consignee, is prima facie evidence that no freight or such demurrage is payable by him. However, proof to the contrary by the carrier is not admissible when the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance on the absence in the bill of lading of any such indication.

Article 17
Guarantees by the shipper

  • 1 The shipper is deemed to have guaranteed to the carrier the accuracy of particulars relating to the general nature of the goods, their marks, number, weight and quantity as furnished by him for insertion in the bill of lading. The shipper must indemnify the carrier against the loss resulting from inaccuracies in such particulars. The shipper remains liable even if the bill of lading has been transferred by him. The right of the carrier to such indemnity in no way limits his liability under the contract of carriage by sea to any person other than the shipper.

  • 2 Any letter of guarantee or agreement by which the shipper undertakes to indemnify the carrier against loss resulting from the issuance of the bill of lading by the carrier, or by a person acting on his behalf, without entering a reservation relating to particulars furnished by the shipper for insertion in the bill of lading, or to the apparent condition of the goods, is void and of no effect as against any third party, including a consignee, to whom the bill of lading has been transferred.

  • 3 Such letter of guarantee or agreement is valid as against the shipper unless the carrier or the person acting on his behalf, by omitting the reservation referred to in paragraph 2 of this article, intends to defraud a third party, including a consignee, who acts in reliance on the description of the goods in the bill of lading. In the latter case, if the reservation omitted relates to particulars furnished by the shipper for insertion in the bill of lading, the carrier has no right of indemnity from the shipper pursuant to paragraph 1 of this article.

  • 4 In the case of intended fraud referred to in paragraph 3 of this article the carrier is liable, without the benefit of the limitation of liability provided for in this Convention, for the loss incurred by a third party, including a consignee, because he has acted in reliance on the description of the goods in the bill of lading.

Article 18
Documents other than bills of lading

Where a carrier issues a document other than a bill of lading to evidence the receipt of the goods to be carried, such a document is prima facie evidence of the conclusion of the contract of carriage by sea and the taking over by the carrier of the goods as therein described.

PART V
Claims and Actions

Article 19
Notice of loss, damage or delay

  • 1 Unless notice of loss or damage, specifying the general nature of such loss or damage, is given in writing by the consignee to the carrier not later than the working day after the day when the goods were handed over to the consignee, such handing over is prima facie evidence of the delivery by the carrier of the goods as described in the document of transport or, if no such document has been issued, in good condition.

  • 2 Where the loss or damage is not apparent, the provisions of paragraph 1 of this article apply correspondingly if notice in writing is not given within 15 consecutive days after the day when the goods were handed over to the consignee.

  • 3 If the state of the goods at the time they were handed over to the consignee has been the subject of a joint survey or inspection by the parties, notice in writing need not be given of loss or damage ascertained during such survey or inspection.

  • 4 In the case of any actual or apprehended loss or damage the carrier and the consignee must give all reasonable facilities to each other for inspecting and tallying the goods.

  • 5 No compensation shall be payable for loss resulting from delay in delivery unless a notice has been given in writing to the carrier within 60 consecutive days after the day when the goods were handed over to the consignee.

  • 6 If the goods have been delivered by an actual carrier, any notice given under this article to him shall have the same effect as if it had been given to the carrier, and any notice given to the carrier shall have effect as if given to such actual carrier.

  • 7 Unless notice of loss or damage, specifying the general nature of the loss or damage, is given in writing by the carrier or actual carrier to the shipper not later than 90 consecutive days after the occurrence of such loss or damage or after the delivery of the goods in accordance with paragraph 2 of article 4, whichever is later, the failure to give such notice is prima facie evidence that the carrier or the actual carrier has sustained no loss or damage due to the fault or neglect of the shipper, his servants or agents.

  • 8 For the purpose of this article, notice given to a person acting on the carrier’s or the actual carrier’s behalf, including the master or the officer in charge of the ship, or to a person acting on the shipper’s behalf is deemed to have been given to the carrier, to the actual carrier or to the shipper, respectively.

Article 20
Limitation of actions

  • 1 Any action relating to carriage of goods under this Convention is time-barred if judicial or arbitral proceedings have not been instituted within a period of two years.

  • 2 The limitation period commences on the day on which the carrier has delivered the goods or part thereof or, in cases where no goods have been delivered, on the last day on which the goods should have been delivered.

  • 3 The day on which the limitation period commences is not included in the period.

  • 4 The person against whom a claim is made may at any time during the running of the limitation period extend that period by a declaration in writing to the claimant. This period may be further extended by another declaration or declarations.

  • 5 An action for indemnity by a person held liable may be instituted even after the expiration of the limitation period provided for in the preceding paragraphs if instituted within the time allowed by the law of the State where proceedings are instituted. However, the time allowed shall not be less than 90 days commencing from the day when the person instituting such action for indemnity has settled the claim or has been served with process in the action against himself.

Article 21
Jurisdiction

  • 1 In judicial proceedings relating to carriage of goods under this Convention the plaintiff, at his option, may institute an action in a court which, according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated one of the following places:

    • (a) the principal place of business or, in the absence thereof, the habitual residence of the defendant; or

    • (b) the place where the contract was made provided that the defendant has there a place of business, branch or agency through which the contract was made; or

    • (c) the port of loading or the port of discharge; or

    • (d) any additional place designated for that purpose in the contract of carriage by sea.

  • 2
    • (a) Notwithstanding the preceding provisions of this article, an action may be instituted in the courts of any port or place in a Contracting State at which the carrying vessel or any other vessel of the same ownership may have been arrested in accordance with applicable rules of the law of that State and of international law. However, in such a case, at the petition of the defendant, the claimant must remove the action, at his choice, to one of the jurisdictions referred to in paragraph 1 of this article for the determination of the claim, but before such removal the defendant must furnish security sufficient to ensure payment of any judgement that may subsequently be awarded to the claimant in the action.

    • (b) All questions relating to the sufficiency or otherwise of the security shall be determined by the court of the port or place of the arrest.

  • 3 No judicial proceedings relating to carriage of goods under this Convention may be instituted in a place not specified in paragraph 1 or 2 of this article. The provisions of this paragraph do not constitute an obstacle to the jurisdiction of the Contracting States for provisional or protective measures.

  • 4
    • (a) Where an action has been instituted in a court competent under paragraph 1 or 2 of this article or where judgement has been delivered by such a court, no new action may be started between the same parties on the same grounds unless the judgement of the court before which the first action was instituted is not enforceable in the country in which the new proceedings are instituted;

    • (b) for the purpose of this article the institution of measures with a view to obtaining enforcement of a judgement is not to be considered as the starting of a new action;

    • (c) for the purpose of this article, the removal of an action to a different court within the same country, or to a court in another country, in accordance with paragraph 2(a) of this article, is not to be considered as the starting of a new action.

  • 5 Notwithstanding the provisions of the preceding paragraphs, an agreement made by the parties, after a claim under the contract of carriage by sea has arisen, which designates the place where the claimant may institute an action, is effective.

Article 22
Arbitration

  • 1 Subject to the provisions of this article, parties may provide by agreement evidenced in writing that any dispute that may arise relating to carriage of goods under this Convention shall be referred to arbitration.

  • 2 Where a charter-party contains a provision that disputes arising thereunder shall be referred to arbitration and a bill of lading issued pursuant to the charter-party does not contain a special annotation providing that such provision shall be binding upon the holder of the bill of lading, the carrier may not invoke such provision as against a holder having acquired the bill of lading in good faith.

  • 3 The arbitration proceedings shall, at the option of the claimant, be instituted at one of the following places:

    • (a) a place in a State within whose territory is situated:

      • (i) the principal place of business of the defendant or, in the absence thereof, the habitual residence of the defendant; or

      • (ii) the place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or

      • (iii) the port of loading or the port of discharge; or

    • (b) any place designated for that purpose in the arbitration clause or agreement.

  • 4 The arbitrator or arbitration tribunal shall apply the rules of this Convention.

  • 5 The provisions of paragraphs 3 and 4 of this article are deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith is null and void.

  • 6 Nothing in this article affects the validity of an agreement relating to arbitration made by the parties after the claim under the contract of carriage by sea has arisen.

PART VI
Supplementary Provisions

Article 23
Contractual stipulations

  • 1 Any stipulation in a contract of carriage by sea, in a bill of lading, or in any other document evidencing the contract of carriage by sea is null and void to the extent that it derogates, directly or indirectly, from the provisions of this Convention. The nullity of such a stipulation does not affect the validity of the other provisions of the contract or document of which it forms a part. A clause assigning benefit of insurance of the goods in favour of the carrier, or any similar clause, is null and void.

  • 2 Notwithstanding the provisions of paragraph 1 of this article, a carrier may increase his responsibilities and obligations under this Convention.

  • 3 Where a bill of lading or any other document evidencing the contract of carriage by sea is issued, it must contain a statement that the carriage is subject to the provisions of this Convention which nullify any stipulation derogating therefrom to the detriment of the shipper or the consignee.

  • 4 Where the claimant in respect of the goods has incurred loss as a result of a stipulation which is null and void by virtue of the present article, or as a result of the omission of the statement referred to in paragraph 3 of this article, the carrier must pay compensation to the extent required in order to give the claimant compensation in accordance with the provisions of this Convention for any loss of or damage to the goods as well as for delay in delivery. The carrier must, in addition, pay compensation for costs incurred by the claimant for the purpose of exercising his right, provided that costs incurred in the action where the foregoing provision is invoked are to be determined in accordance with the law of the State where proceedings are instituted.

Article 24
General average

  • 1 Nothing in this Convention shall prevent the application of provisions in the contract of carriage by sea or national law regarding the adjustment of general average.

  • 2 With the exception of article 20, the provisions of this Convention relating to the liability of the carrier for loss of or damage to the goods also determine whether the consignee may refuse contribution in general average and the liability of the carrier to indemnify the consignee in respect of any such contribution made or any salvage paid.

Article 25
Other conventions

  • 1 This Convention does not modify the rights or duties of the carrier, the actual carrier and their servants and agents, provided for in international conventions or national law relating to the limitation of liability of owners of seagoing ships.

  • 2 The provisions of articles 21 and 22 of this Convention do not prevent the application of the mandatory provisions of any other multilateral convention already in force at the date of this Convention [March 31, 1978] relating to matters dealt with in the said articles, provided that the dispute arises exclusively between parties having their principal place of business in States members of such other convention. However, this paragraph does not affect the application of paragraph 4 of article 22 of this Convention.

  • 3 No liability shall arise under the provisions of this Convention for damage caused by a nuclear incident if the operator of a nuclear installation is liable for such damage:

    • (a) under either the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by the Additional Protocol of 28 January 1964 or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or

    • (b) by virtue of national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or Vienna Conventions.

  • 4 No liability shall arise under the provisions of this Convention for any loss of or damage to or delay in delivery of luggage for which the carrier is responsible under any international convention or national law relating to the carriage of passengers and their luggage by sea.

  • 5 Nothing contained in this Convention prevents a Contracting State from applying any other international convention which is already in force at the date of this Convention and which applies mandatorily to contracts of carriage of goods primarily by a mode of transport other than transport by sea. This provision also applies to any subsequent revision or amendment of such international convention.

Article 26
Unit of account

  • 1 The unit of account referred to in article 6 of this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in article 6 are to be converted into the national currency of a State according to the value of such currency at the date of judgement or the date agreed upon by the parties. The value of a national currency, in terms of the Special Drawing Right, of a Contracting State which is a member of the International Monetary Fund is to be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of a national currency in terms of the Special Drawing Right of a Contracting State which is not a member of the International Monetary Fund is to be calculated in a manner determined by that State.

  • 2 Nevertheless, those States which are not members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this article may, at the time of signature, or at the time of ratification, acceptance, approval or accession or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in their territories shall be fixed as:

    12,500 monetary units per package or other shipping unit or 37.5 monetary units per kilogramme of gross weight of the goods.

  • 3 The monetary unit referred to in paragraph 2 of this article corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the amounts referred to in paragraph 2 into the national currency is to be made according to the law of the State concerned.

  • 4 The calculation mentioned in the last sentence of paragraph 1 and the conversion mentioned in paragraph 3 of this article is to be made in such a manner as to express in the national currency of the Contracting State as far as possible the same real value for the amounts in article 6 as is expressed there in units of account. Contracting States must communicate to the depositary the manner of calculation pursuant to paragraph 1 of this article, or the result of the conversion mentioned in paragraph 3 of this article, as the case may be, at the time of signature or when depositing their instruments of ratification, acceptance, approval or accession, or when availing themselves of the option provided for in paragraph 2 of this article and whenever there is a change in the manner of such calculation or in the result of such conversion.

PART VII
Final Clauses

Article 27
Depositary

The Secretary General of the United Nations is hereby designated as the depositary of this Convention.

Article 28
Signature, ratification, acceptance, approval, accession

  • 1 This Convention is open for signature by all States until 30 April 1979 at the Headquarters of the United Nations, New York.

  • 2 This Convention is subject to ratification, acceptance or approval by the signatory States.

  • 3 After 30 April 1979, this Convention will be open for accession by all States which are not signatory States.

  • 4 Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.

Article 29
Reservations

No reservations may be made to this Convention.

Article 30
Entry into force

  • 1 This Convention enters into force on the first day of the month following the expiration of one year from the date of deposit of the 20th instrument of ratification, acceptance, approval or accession.

  • 2 For each State which becomes a Contracting State to this Convention after the date of deposit of the 20th instrument of ratification, acceptance, approval or accession, this Convention enters into force on the first day of the month following the expiration of one year after the deposit of the appropriate instrument on behalf of that State.

  • 3 Each Contracting State shall apply the provisions of this Convention to contracts of carriage by sea concluded on or after the date of the entry into force of this Convention in respect of that State.

Article 31
Denunciation of other conventions

  • 1 Upon becoming a Contracting State to this Convention, any State party to the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 (1924 Convention) must notify the Government of Belgium as the depositary of the 1924 Convention of its denunciation of the said Convention with a declaration that the denunciation is to take effect as from the date when this Convention enters into force in respect of that State.

  • 2 Upon the entry into force of this Convention under paragraph 1 of article 30, the depositary of this Convention must notify the Government of Belgium as the depositary of the 1924 Convention of the date of such entry into force, and of the names of the Contracting States in respect of which the Convention has entered into force.

  • 3 The provisions of paragraphs 1 and 2 of this article apply correspondingly in respect of States parties to the Protocol signed on 23 February 1968 to amend the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924.

  • 4 Notwithstanding article 2 of this Convention, for the purposes of paragraph 1 of this article, a Contracting State may, if it deems it desirable, defer the denunciation of the 1924 Convention and of the 1924 Convention as modified by the 1968 Protocol for a maximum period of five years from the entry into force of this Convention. It will then notify the Government of Belgium of its intention. During this transitory period, it must apply to the Contracting States this Convention to the exclusion of any other one.

Article 32
Revision and amendment

  • 1 At the request of not less than one-third of the Contracting States to this Convention, the depositary shall convene a conference of the Contracting States for revising or amending it.

  • 2 Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Convention, is deemed to apply to the Convention as amended.

Article 33
Revision of the limitation amounts and unit of account or monetary unit

  • 1 Notwithstanding the provisions of article 32, a conference only for the purpose of altering the amount specified in article 6 and paragraph 2 of article 26, or of substituting either or both of the units defined in paragraphs 1 and 3 of article 26 by other units is to be convened by the depositary in accordance with paragraph 2 of this article. An alteration of the amounts shall be made only because of a significant change in their real value.

  • 2 A revision conference is to be convened by the depositary when not less than one-fourth of the Contracting States so request.

  • 3 Any decision by the conference must be taken by a two-thirds majority of the participating States. The amendment is communicated by the depositary to all the Contracting States for acceptance and to all the States signatories of the Convention for information.

  • 4 Any amendment adopted enters into force on the first day of the month following one year after its acceptance by two-thirds of the Contracting States. Acceptance is to be effected by the deposit of a formal instrument to that effect, with the depositary.

  • 5 After entry into force of an amendment a Contracting State which has accepted the amendment is entitled to apply the Convention as amended in its relations with Contracting States which have not within six months after the adoption of the amendment notified the depositary that they are not bound by the amendment.

  • 6 Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Convention, is deemed to apply to the Convention as amended.

Article 34
Denunciation

  • 1 A Contracting State may denounce this Convention at any time by means of a notification in writing addressed to the depositary.

  • 2 The denunciation takes effect on the first day of the month following the expiration of one year after the notification is received by the depositary. Where a longer period is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

DONE at Hamburg, this thirty-first day of March one thousand nine hundred and seventy-eight, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed the present Convention.

Common Understanding Adopted by the United Nations Conference on the Carriage of Goods by Sea

It is the common understanding that the liability of the carrier under this Convention is based on the principle of presumed fault or neglect. This means that, as a rule, the burden of proof rests on the carrier but, with respect to certain cases, the provisions of the Convention modify this rule.

SCHEDULE 5(Sections 48 and 50)Text of Articles I to XI, XII bis and 15 of the International Convention on Civil Liability for Oil Pollution Damage, 1992, as Amended by the Resolution of 2000

ARTICLE I

For the purposes of this Convention:

  • 1 Ship means any sea-going vessel and seaborne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.

  • 2 Person means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.

  • 3 Owner means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, owner shall mean such company.

  • 4 State of the ship’s registry means in relation to registered ships the State of registration of the ship, and in relation to unregistered ships the State whose flag the ship is flying.

  • 5 Oil means any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such a ship.

  • 6 Pollution damage means:

    • (a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;

    • (b) the costs of preventive measures and further loss or damage caused by preventive measures.

  • 7 Preventive measures means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.

  • 8 Incident means any occurrence, or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage.

  • 9 Organization means the International Maritime Organization.

  • 10 1969 Liability Convention means the International Convention on Civil Liability for Oil Pollution Damage, 1969. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1969 Liability Convention as amended by that Protocol.

ARTICLE II

This Convention shall apply exclusively:

  • (a) to pollution damage caused:

    • (i) in the territory, including the territorial sea, of a Contracting State, and

    • (ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

  • (b) to preventive measures, wherever taken, to prevent or minimize such damage.

ARTICLE III

  • 1 Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.

  • 2 No liability for pollution damage shall attach to the owner if he proves that the damage:

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

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

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

  • 3 If the owner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from his liability to such person.

  • 4 No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:

    • (a) the servants or agents of the owner or the members of the crew;

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

    • (c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;

    • (d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

    • (e) any person taking preventive measures;

    • (f) all servants or agents of persons mentioned in subparagraphs (c), (d) and (e);

    unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

  • 5 Nothing in this Convention shall prejudice any right of recourse of the owner against third parties.

ARTICLE IV

When an incident involving two or more ships occurs and pollution damage results therefrom, the owners of all the ships concerned, unless exonerated under Article III, shall be jointly and severally liable for all such damage which is not reasonably separable.

ARTICLE V

  • 1 The owner of a ship shall be entitled to limit his liability under this Convention in respect of any one incident to an aggregate amount calculated as follows:

    • (a) 4,510,000 units of account for a ship not exceeding 5,000 units of tonnage;

    • (b) for a ship with a tonnage in excess thereof, for each additional unit of tonnage, 631 units of account in addition to the amount mentioned in sub-paragraph (a);

    provided, however, that this aggregate amount shall not in any event exceed 89,770,000 units of account.

  • 2 The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

  • 3 For the purpose of availing himself of the benefit of limitation provided for in paragraph 1 of this Article the owner shall constitute a fund for the total sum representing the limit of his liability with the Court or other competent authority of any one of the Contracting States in which action is brought under Article IX or, if no action is brought, with any Court or other competent authority in any one of the Contracting States in which an action can be brought under Article IX. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the legislation of the Contracting State where the fund is constituted, and considered to be adequate by the Court or other competent authority.

  • 4 The fund shall be distributed among the claimants in proportion to the amounts of their established claims.

  • 5 If before the fund is distributed the owner or any of his servants or agents or any person providing him insurance or other financial security has as a result of the incident in question, paid compensation for pollution damage, such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

  • 6 The right of subrogation provided for in paragraph 5 of this Article may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for pollution damage which he may have paid but only to the extent that such subrogation is permitted under the applicable national law.

  • 7 Where the owner or any other person establishes that he may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which such person would have enjoyed a right of subrogation under paragraphs 5 or 6 of this Article, had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund.

  • 8 Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall rank equally with other claims against the fund.

  • 9 (a) The unit of account referred to in paragraph 1 of this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in paragraph 1 shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the constitution of the fund referred to in paragraph 3. The value of the national currency, in terms of the Special Drawing Right, of a Contracting State which is a member of the International Monetary Fund shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a Contracting State which is not a member of the International Monetary Fund shall be calculated in a manner determined by that State.

    • (b) Nevertheless, a Contracting State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9(a) may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 9(a) shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.

    • (c) The calculation mentioned in the last sentence of paragraph 9(a) and the conversion mentioned in paragraph 9(b) shall be made in such manner as to express in the national currency of the Contracting State as far as possible the same real value for the amounts in paragraph 1 as would result from the application of the first three sentences of paragraph 9(a). Contracting States shall communicate to the depositary the manner of calculation pursuant to paragraph 9(a), or the result of the conversion in paragraph 9(b) as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

  • 10 For the purpose of this Article the ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.

  • 11 The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this Article on the same conditions and having the same effect as if it were constituted by the owner. Such a fund may be constituted even if, under the provisions of paragraph 2, the owner is not entitled to limit his liability, but its constitution shall in that case not prejudice the rights of any claimant against the owner.

ARTICLE VI

  • 1 Where the owner, after an incident, has constituted a fund in accordance with Article V, and is entitled to limit his liability,

    • (a) no person having a claim for pollution damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim;

    • (b) the Court or other competent authority of any Contracting State shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for pollution damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest.

  • 2 The foregoing shall, however, only apply if the claimant has access to the Court administering the fund and the fund is actually available in respect of his claim.

ARTICLE VII

  • 1 The owner of a ship registered in a Contracting State and carrying more than 2,000 tons of oil in bulk as cargo shall be required to maintain insurance or other financial security, such as the guarantee of a bank or a certificate delivered by an international compensation fund, in the sums fixed by applying the limits of liability prescribed in Article V, paragraph 1 to cover his liability for pollution damage under this Convention.

  • 2 A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a Contracting State has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a Contracting State such certificate shall be issued or certified by the appropriate authority of the State of the ship’s registry; with respect to a ship not registered in a Contracting State it may be issued or certified by the appropriate authority of any Contracting State. This certificate shall be in the form of the annexed model and shall contain the following particulars:

    • (a) name of ship and port of registration;

    • (b) name and principal place of business of owner;

    • (c) type of security;

    • (d) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established;

    • (e) period of validity of certificate which shall not be longer than the period of validity of the insurance or other security.

  • 3 The certificate shall be in the official language or languages of the issuing State. If the language used is neither English nor French, the text shall include a translation into one of these languages.

  • 4 The certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship’s registry or, if the ship is not registered in a Contracting State, with the authorities of the State issuing or certifying the certificate.

  • 5 An insurance or other financial security shall not satisfy the requirements of this Article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2 of this Article, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 4 of this Article, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this Article.

  • 6 The State of registry shall, subject to the provisions of this Article, determine the conditions of issue and validity of the certificate.

  • 7 Certificates issued or certified under the authority of a Contracting State in accordance with paragraph 2 shall be accepted by other Contracting States for the purposes of this Convention and shall be regarded by other Contracting States as having the same force as certificates issued or certified by them even if issued or certified in respect of a ship not registered in a Contracting State. A Contracting State may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the certificate is not financially capable of meeting the obligations imposed by this Convention.

  • 8 Any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the owner’s liability for pollution damage. In such case the defendant may, even if the owner is not entitled to limit his liability according to Article V, paragraph 2, avail himself of the limits of liability prescribed in Article V, paragraph 1. He may further avail himself of the defences (other than the bankruptcy or winding up of the owner) which the owner himself would have been entitled to invoke. Furthermore, the defendant may avail himself of the defence that the pollution damage resulted from the wilful misconduct of the owner himself, but the defendant shall not avail himself of any other defence which he might have been entitled to invoke in proceedings brought by the owner against him. The defendant shall in any event have the right to require the owner to be joined in the proceedings.

  • 9 Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 of this Article shall be available exclusively for the satisfaction of claims under this Convention.

  • 10 A Contracting State shall not permit a ship under its flag to which this Article applies to trade unless a certificate has been issued under paragraph 2 or 12 of this Article.

  • 11 Subject to the provisions of this Article, each Contracting State shall ensure, under its national legislation, that insurance or other security to the extent specified in paragraph 1 of this Article is in force in respect of any ship, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an off-shore terminal in its territorial sea, if the ship actually carries more than 2,000 tons of oil in bulk as cargo.

  • 12 If insurance or other financial security is not maintained in respect of a ship owned by a Contracting State, the provisions of this Article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authorities of the State of the ship’s registry stating that the ship is owned by that State and that the ship’s liability is covered within the limits prescribed by Article V, paragraph 1. Such a certificate shall follow as closely as practicable the model prescribed by paragraph 2 of this Article.

ARTICLE VIII

Rights of compensation under this Convention shall be extinguished unless an action is brought thereunder within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage. Where this incident consists of a series of occurrences, the six years’ period shall run from the date of the first such occurrence.

ARTICLE IX

  • 1 Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in Article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States. Reasonable notice of any such action shall be given to the defendant.

  • 2 Each Contracting State shall ensure that its Courts possess the necessary jurisdiction to entertain such actions for compensation.

  • 3 After the fund has been constituted in accordance with Article V the Courts of the State in which the fund is constituted shall be exclusively competent to determine all matters relating to the apportionment and distribution of the fund.

ARTICLE X

  • 1 Any judgment given by a Court with jurisdiction in accordance with Article IX which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognized in any Contracting State, except:

    • (a) where the judgment was obtained by fraud; or

    • (b) where the defendant was not given reasonable notice and a fair opportunity to present his case.

  • 2 A judgment recognized under paragraph 1 of this Article shall be enforceable in each Contracting State as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.

ARTICLE XI

  • 1 The provisions of this Convention shall not apply to warships or other ships owned or operated by a State and used, for the time being, only on government non-commercial service.

  • 2 With respect to ships owned by a Contracting State and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in Article IX and shall waive all defences based on its status as a sovereign State.

ARTICLE XII BIS
Transitional Provisions

The following transitional provisions shall apply in the case of a State which at the time of an incident is a Party both to this Convention and to the 1969 Liability Convention:

  • (a) where an incident has caused pollution damage within the scope of this Convention, liability under this Convention shall be deemed to be discharged if, and to the extent that, it also arises under the 1969 Liability Convention;

  • (b) where an incident has caused pollution damage within the scope of this Convention, and the State is a Party both to this Convention and to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, liability remaining to be discharged after the application of subparagraph (a) of this Article shall arise under this Convention only to the extent that pollution damage remains uncompensated after application of the said 1971 Convention;

  • (c) in the application of Article III, paragraph 4, of this Convention the expression “this Convention” shall be interpreted as referring to this Convention or the 1969 Liability Convention, as appropriate;

  • (d) in the application of Article V, paragraph 3, of this Convention the total sum of the fund to be constituted shall be reduced by the amount by which liability has been deemed to be discharged in accordance with sub-paragraph (a) of this Article.

ARTICLE 15
Amendments of Limitation Amounts

  • 1 Upon the request of at least one quarter of the Contracting States any proposal to amend the limits of liability laid down in Article V, paragraph 1, of the 1969 Liability Convention as amended by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States.

  • 2 Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization for consideration at a date at least six months after the date of its circulation.

  • 3 All Contracting States to the 1969 Liability Convention as amended by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

  • 4 Amendments shall be adopted by a two-thirds majority of the Contracting States present and voting in the Legal Committee, expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States shall be present at the time of voting.

  • 5 When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and in particular the amount of damage resulting therefrom, changes in the monetary values and the effect of the proposed amendment on the cost of insurance. It shall also take into account the relationship between the limits in Article V, paragraph 1, of the 1969 Liability Convention as amended by this Protocol and those in Article 4, paragraph 4, of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992.

6. (a) No amendment of the limits of liability under this Article may be considered before 15 January 1998 nor less than five years from the date of entry into force of a previous amendment under this Article. No amendment under this Article shall be considered before this Protocol has entered into force.

(b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1969 Liability Convention as amended by this Protocol increased by 6 per cent per year calculated on a compound basis from 15 January 1993.

(c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1969 Liability Convention as amended by this Protocol multiplied by 3.

  • 7 Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one quarter of the States that were Contracting States at the time of the adoption of the amendment by the Legal Committee have communicated to the Organization that they do not accept the amendment in which case the amendment is rejected and shall have no effect.

  • 8 An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.

  • 9 All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with Article 16, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

  • 10 When an amendment has been adopted by the Legal Committee but the eighteen-month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

ANNEX

Certificate of Insurance or Other Financial Security in Respect of Civil Liability for Oil Pollution Damage

Issued in accordance with the provisions of Article VII of the International Convention on Civil Liability for Oil Pollution Damage, 1992.

Name of ship

Distinctive number or letters

Port of registry

Name and address of owner

This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article VII of the International Convention on Civil Liability for Oil Pollution Damage, 1992.

Type of Securityblank line

Duration of Securityblank line

Name and Address of the Insurer(s) and/or Guarantor(s)

Nameblank line

Addressblank line

This certificate is valid untilblank line

Issued or certified by the Government ofblank line

blank line

(Full designation of the State)

At (Place)blank lineOn (Date)

Signature and Title of issuing or certifying official

Explanatory Notes:

  • 1 
    If desired, the designation of the State may include a reference to the competent public authority of the country where the certificate is issued.
  • 2 
    If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated.
  • 3 
    If security is furnished in several forms, these should be enumerated.
  • 4 
    The entry “Duration of Security” must stipulate the date on which such security takes effect.
  • 2009, c. 21, s. 17

SCHEDULE 6(Sections 57 and 59)Text of Articles 1 to 4, 6 to 10, 12 to 15, 36 ter, 29, 33 and 37 of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, as Amended by the Resolution of 2000

General Provisions

Article 1

For the purposes of this Convention:

  • 1 1992 Liability Convention means the International Convention on Civil Liability for Oil Pollution Damage, 1992.

  • 1bis 1971 Fund Convention means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1971 Fund Convention as amended by that Protocol.

  • 2 Ship, Person, Owner, Oil, Pollution Damage, Preventive Measures, Incident, and Organization have the same meaning as in Article I of the 1992 Liability Convention.

  • 3 Contributing Oil means crude oil and fuel oil as defined in sub-paragraphs (a) and (b) below:

    • (a) Crude Oil means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation. It also includes crude oils from which certain distillate fractions have been removed (sometimes referred to as “topped crudes”) or to which certain distillate fractions have been added (sometimes referred to as “spiked” or “reconstituted” crudes).

    • (b) Fuel Oil means heavy distillates or residues from crude oil or blends of such materials intended for use as a fuel for the production of heat or power of a quality equivalent to the “American Society for Testing and Materials’ Specification for Number Four Fuel Oil (Designation D 396-69)”, or heavier.

  • 4 Unit of account has the same meaning as in Article V, paragraph 9, of the 1992 Liability Convention.

  • 5 Ship’s tonnage has the same meaning as in Article V, paragraph 10, of the 1992 Liability Convention.

  • 6 Ton, in relation to oil, means a metric ton.

  • 7 Guarantor means any person providing insurance or other financial security to cover an owner’s liability in pursuance of Article VII, paragraph 1, of the 1992 Liability Convention.

  • 8 Terminal installation means any site for the storage of oil in bulk which is capable of receiving oil from waterborne transportation, including any facility situated off-shore and linked to such site.

  • 9 Where an incident consists of a series of occurrences, it shall be treated as having occurred on the date of the first such occurrence.

Article 2

  • 1 An International Fund for compensation for pollution damage, to be named “The International Oil Pollution Compensation Fund 1992” and hereinafter referred to as “the Fund”, is hereby established with the following aims:

    • (a) to provide compensation for pollution damage to the extent that the protection afforded by the 1992 Liability Convention is inadequate;

    • (b) to give effect to the related purposes set out in this Convention.

  • 2 The Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognize the Director of the Fund (hereinafter referred to as “The Director”) as the legal representative of the Fund.

Article 3

This Convention shall apply exclusively:

  • (a) to pollution damage caused:

    • (i) in the territory, including the territorial sea, of a Contracting State, and

    • (ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

  • (b) to preventive measures, wherever taken, to prevent or minimize such damage.

Compensation

Article 4

  • 1 For the purpose of fulfilling its function under Article 2, paragraph 1(a), the Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1992 Liability Convention,

    • (a) because no liability for the damage arises under the 1992 Liability Convention;

    • (b) because the owner liable for the damage under the 1992 Liability Convention is financially incapable of meeting his obligations in full and any financial security that may be provided under Article VII of that Convention does not cover or is insufficient to satisfy the claims for compensation for the damage; an owner being treated as financially incapable of meeting his obligations and a financial security being treated as insufficient if the person suffering the damage has been unable to obtain full satisfaction of the amount of compensation due under the 1992 Liability Convention after having taken all reasonable steps to pursue the legal remedies available to him;

    • (c) because the damage exceeds the owner’s liability under the 1992 Liability Convention as limited pursuant to Article V, paragraph 1, of that Convention or under the terms of any other international Convention in force or open for signature, ratification or accession at the date of this Convention.

    Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall be treated as pollution damage for the purposes of this Article.

  • 2 The Fund shall incur no obligation under the preceding paragraph if:

    • (a) it proves that the pollution damage resulted from an act of war, hostilities, civil war or insurrection or was caused by oil which has escaped or been discharged from a warship or other ship owned or operated by a State and used, at the time of the incident, only on Government non-commercial service; or

    • (b) the claimant cannot prove that the damage resulted from an incident involving one or more ships.

  • 3 If the Fund proves that the pollution damage resulted wholly or partially either from an act or omission done with the intent to cause damage by the person who suffered the damage or from the negligence of that person, the Fund may be exonerated wholly or partially from its obligation to pay compensation to such person. The Fund shall in any event be exonerated to the extent that the shipowner may have been exonerated under Article III, paragraph 3, of the 1992 Liability Convention. However, there shall be no such exoneration of the Fund with regard to preventive measures.

  • 4 (a) Except as otherwise provided in sub-paragraphs (b) and (c) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the 1992 Liability Convention for pollution damage within the scope of application of this Convention as defined in Article 3 shall not exceed 203,000,000 units of account.

    • (b) Except as otherwise provided in sub-paragraph (c), the aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 203,000,000 units of account.

    • (c) The maximum amount of compensation referred to in sub-paragraphs (a) and (b) shall be 300,740,000 units of account with respect to any incident occurring during any period when there are three Parties to this Convention in respect of which the combined relevant quantity of contributing oil received by persons in the territories of such Parties, during the preceding calendar year, equalled or exceeded 600 million tons.

    • (d) Interest accrued on a fund constituted in accordance with Article V, paragraph 3, of the 1992 Liability Convention, if any, shall not be taken into account for the computation of the maximum compensation payable by the Fund under this Article.

    • (e) The amounts mentioned in this Article shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the decision of the Assembly of the Fund as to the first date of payment of compensation.

  • 5 Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Convention shall be the same for all claimants.

  • 6 The Assembly of the Fund may decide that, in exceptional cases, compensation in accordance with this Convention can be paid even if the owner of the ship has not constituted a fund in accordance with Article V, paragraph 3, of the 1992 Liability Convention. In such case paragraph 4(e) of this Article applies accordingly.

  • 7 The Fund shall, at the request of a Contracting State, use its good offices as necessary to assist that State to secure promptly such personnel, material and services as are necessary to enable the State to take measures to prevent or mitigate pollution damage arising from an incident in respect of which the Fund may be called upon to pay compensation under this Convention.

  • 8 The Fund may on conditions to be laid down in the Internal Regulations provide credit facilities with a view to the taking of preventive measures against pollution damage arising from a particular incident in respect of which the Fund may be called upon to pay compensation under this Convention.

Article 6

Rights to compensation under Article 4 shall be extinguished unless an action is brought thereunder or a notification has been made pursuant to Article 7, paragraph 6, within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage.

Article 7

  • 1 Subject to the subsequent provisions of this Article, any action against the Fund for compensation under Article 4 of this Convention shall be brought only before a court competent under Article IX of the 1992 Liability Convention in respect of actions against the owner who is or who would, but for the provisions of Article III, paragraph 2, of that Convention, have been liable for pollution damage caused by the relevant incident.

  • 2 Each Contracting State shall ensure that its courts possess the necessary jurisdiction to entertain such actions against the Fund as are referred to in paragraph 1.

  • 3 Where an action for compensation for pollution damage has been brought before a court competent under Article IX of the 1992 Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Fund for compensation under the provisions of Article 4 of this Convention in respect of the same damage. However, where an action for compensation for pollution damage under the 1992 Liability Convention has been brought before a court in a State Party to the 1992 Liability Convention but not to this Convention, any action against the Fund under Article 4 of this Convention shall at the option of the claimant be brought either before a court of the State where the Fund has its headquarters or before any court of a State Party to this Convention competent under Article IX of the 1992 Liability Convention.

  • 4 Each Contracting State shall ensure that the Fund shall have the right to intervene as a party to any legal proceedings instituted in accordance with Article IX of the 1992 Liability Convention before a competent court of that State against the owner of a ship or his guarantor.

  • 5 Except as otherwise provided in paragraph 6, the Fund shall not be bound by any judgment or decision in proceedings to which it has not been a party or by any settlement to which it is not a party.

  • 6 Without prejudice to the provisions of paragraph 4, where an action under the 1992 Liability Convention for compensation for pollution damage has been brought against an owner or his guarantor before a competent court in a Contracting State, each party to the proceedings shall be entitled under the national law of that State to notify the Fund of the proceedings. Where such notification has been made in accordance with the formalities required by the law of the court seized and in such time and in such a manner that the Fund has in fact been in a position effectively to intervene as a party to the proceedings, any judgment rendered by the court in such proceedings shall, after it has become final and enforceable in the State where the judgment was given, become binding upon the Fund in the sense that the facts and findings in that judgment may not be disputed by the Fund even if the Fund has not actually intervened in the proceedings.

Article 8

Subject to any decision concerning the distribution referred to in Article 4, paragraph 5, any judgment given against the Fund by a court having jurisdiction in accordance with Article 7, paragraphs 1 and 3, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in Article X of the 1992 Liability Convention.

Article 9

  • 1 The Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund in accordance with Article 4, paragraph 1, of this Convention, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor.

  • 2 Nothing in this Convention shall prejudice any right of recourse or subrogation of the Fund against persons other than those referred to in the preceding paragraph. In any event the right of the Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation has been paid.

  • 3 Without prejudice to any other rights of subrogation or recourse against the Fund which may exist, a Contracting State or agency thereof which has paid compensation for pollution damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

Contributions

Article 10

  • 1 Annual contributions to the Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in Article 12, paragraph 2(a) or (b), has received in total quantities exceeding 150,000 tons:

    • (a) in the ports or terminal installations in the territory of that State contributing oil carried by sea to such ports or terminal installations; and

    • (b) in any installations situated in the territory of that Contracting State contributing oil which has been carried by sea and discharged in a port or terminal installation of a non-Contracting State, provided that contributing oil shall only be taken into account by virtue of this sub-paragraph on first receipt in a Contracting State after its discharge in that non-Contracting State.

  • 2 (a) For the purposes of paragraph 1, where the quantity of contributing oil received in the territory of a Contracting State by any person in a calendar year when aggregated with the quantity of contributing oil received in the same Contracting State in that year by any associated person or persons exceeds 150,000 tons, such person shall pay contributions in respect of the actual quantity received by him notwithstanding that that quantity did not exceed 150,000 tons.

    • (b) Associated person means any subsidiary or commonly controlled entity. The question whether a person comes within this definition shall be determined by the national law of the State concerned.

Article 12

  • 1 With a view to assessing the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the Assembly shall for each calendar year make an estimate in the form of a budget of:

    • (i) Expenditure

      • (a) costs and expenses of the administration of the Fund in the relevant year and any deficit from operations in preceding years;

      • (b) payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4, including repayment on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident does not exceed four million units of account;

      • (c) payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4, including repayments on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident is in excess of four million units of account;

    • (ii) Income

      • (a) surplus funds from operations in preceding years, including any interest;

      • (b) annual contributions, if required to balance the budget;

      • (c) any other income.

  • 2 The Assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director shall, in respect of each Contracting State, calculate for each person referred to in Article 10 the amount of his annual contribution:

    • (a) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(a) and (b) on the basis of a fixed sum for each ton of contributing oil received in the relevant State by such persons during the preceding calendar year; and

    • (b) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(c) of this Article on the basis of a fixed sum for each ton of contributing oil received by such person during the calendar year preceding that in which the incident in question occurred, provided that State was a Party to this Convention at the date of the incident.

  • 3 The sums referred to in paragraph 2 above shall be arrived at by dividing the relevant total amount of contributions required by the total amount of contributing oil received in all Contracting States in the relevant year.

  • 4 The annual contribution shall be due on the date to be laid down in the Internal Regulations of the Fund. The Assembly may decide on a different date of payment.

  • 5 The Assembly may decide, under conditions to be laid down in the Financial Regulations of the Fund, to make transfers between funds received in accordance with Article 12.2(a) and funds received in accordance with Article 12.2(b).

Article 13

  • 1 The amount of any contribution due under Article 12 and which is in arrears shall bear interest at a rate which shall be determined in accordance with the Internal Regulations of the Fund, provided that different rates may be fixed for different circumstances.

  • 2 Each Contracting State shall ensure that any obligation to contribute to the Fund arising under this Convention in respect of oil received within the territory of that State is fulfilled and shall take any appropriate measures under its law, including the imposing of such sanctions as it may deem necessary, with a view to the effective execution of any such obligation; provided, however, that such measures shall only be directed against those persons who are under an obligation to contribute to the Fund.

  • 3 Where a person who is liable in accordance with the provisions of Articles 10 and 12 to make contributions to the Fund does not fulfil his obligations in respect of any such contribution or any part thereof and is in arrear, the Director shall take all appropriate action against such person on behalf of the Fund with a view to the recovery of the amount due. However, where the defaulting contributor is manifestly insolvent or the circumstances otherwise so warrant, the Assembly may, upon recommendation of the Director, decide that no action shall be taken or continued against the contributor.

Article 14

  • 1 Each Contracting State may at the time when it deposits its instrument of ratification or accession or at any time thereafter declare that it assumes itself obligations that are incumbent under this Convention on any person who is liable to contribute to the Fund in accordance with Article 10, paragraph 1, in respect of oil received within the territory of that State. Such declaration shall be made in writing and shall specify which obligations are assumed.

  • 2 Where a declaration under paragraph 1 is made prior to the entry into force of this Convention in accordance with Article 40, it shall be deposited with the Secretary-General of the Organization who shall after the entry into force of the Convention communicate the declaration to the Director.

  • 3 A declaration under paragraph 1 which is made after the entry into force of this Convention shall be deposited with the Director.

  • 4 A declaration made in accordance with this Article may be withdrawn by the relevant State giving notice thereof in writing to the Director. Such notification shall take effect three months after the Director’s receipt thereof.

  • 5 Any State which is bound by a declaration made under this Article shall, in any proceedings brought against it before a competent court in respect of any obligation specified in the declaration, waive any immunity that it would otherwise be entitled to invoke.

Article 15

  • 1 Each Contracting State shall ensure that any person who receives contributing oil within its territory in such quantities that he is liable to contribute to the Fund appears on a list to be established and kept up to date by the Director in accordance with the subsequent provisions of this Article.

  • 2 For the purposes set out in paragraph 1, each Contracting State shall communicate, at a time and in the manner to be prescribed in the Internal Regulations, to the Director the name and address of any person who in respect of that State is liable to contribute to the Fund pursuant to Article 10, as well as data on the relevant quantities of contributing oil received by any such person during the preceding calendar year.

  • 3 For the purposes of ascertaining who are, at any given time, the persons liable to contribute to the Fund in accordance with Article 10, paragraph 1, and of establishing, where applicable, the quantities of oil to be taken into account for any such person when determining the amount of his contribution, the list shall be prima facie evidence of the facts stated therein.

  • 4 Where a Contracting State does not fulfil its obligations to submit to the Director the communication referred to in paragraph 2 and this results in a financial loss for the Fund, that Contracting State shall be liable to compensate the Fund for such loss. The Assembly shall, on the recommendation of the Director, decide whether such compensation shall be payable by that Contracting State.

Article 36 ter

  • 1 Subject to paragraph 4 of this Article, the aggregate amount of the annual contributions payable in respect of contributing oil received in a single Contracting State during a calendar year shall not exceed 27.5% of the total amount of annual contributions pursuant to the 1992 Protocol to amend the 1971 Fund Convention, in respect of that calendar year.

  • 2 If the application of the provisions in paragraphs 2 and 3 of Article 12 would result in the aggregate amount of the contributions payable by contributors in a single Contracting State in respect of a given calendar year exceeding 27.5% of the total annual contributions, the contributions payable by all contributors in that State shall be reduced pro rata so that their aggregate contributions equal 27.5% of the total annual contributions to the Fund in respect of that year.

  • 3 If the contributions payable by persons in a given Contracting State shall be reduced pursuant to paragraph 2 of this Article, the contributions payable by persons in all other Contracting States shall be increased pro rata so as to ensure that the total amount of contributions payable by all persons liable to contribute to the Fund in respect of the calendar year in question will reach the total amount of contributions decided by the Assembly.

  • 4 The provisions in paragraphs 1 to 3 of this Article shall operate until the total quantity of contributing oil received in all Contracting States in a calendar year has reached 750 million tons or until a period of 5 years after the date of entry into force of the said 1992 Protocol has elapsed, whichever occurs earlier.

ARTICLE 29
Information on Contributing Oil

  • 1 Before this Protocol comes into force for a State, that State shall, when depositing an instrument referred to in Article 28, paragraph 5, and annually thereafter at a date to be determined by the Secretary-General of the Organization, communicate to him the name and address of any person who in respect of that State would be liable to contribute to the Fund pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol as well as data on the relevant quantities of contributing oil received by any such person in the territory of that State during the preceding calendar year.

  • 2 During the transitional period, the Director shall, for Parties, communicate annually to the Secretary-General of the Organization data on quantities of contributing oil received by persons liable to contribute to the Fund pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol.

ARTICLE 33
Amendment of Compensation Limits

  • 1 Upon the request of at least one quarter of the Contracting States, any proposal to amend the limits of amounts of compensation laid down in Article 4, paragraph 4, of the 1971 Fund Convention as amended by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States.

  • 2 Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization for consideration at a date at least six months after the date of its circulation.

  • 3 All Contracting States to the 1971 Fund Convention as amended by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

  • 4 Amendments shall be adopted by a two-thirds majority of the Contracting States present and voting in the Legal Committee, expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States shall be present at the time of voting.

  • 5 When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and in particular the amount of damage resulting therefrom and changes in the monetary values. It shall also take into account the relationship between the limits in Article 4, paragraph 4, of the 1971 Fund Convention as amended by this Protocol and those in Article V, paragraph 1 of the International Convention on Civil Liability for Oil Pollution Damage, 1992.

  • 6 (a) No amendment of the limits under this Article may be considered before 15 January 1998 nor less than five years from the date of entry into force of a previous amendment under this Article. No amendment under this Article shall be considered before this Protocol has entered into force.

    • (b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1971 Fund Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from 15 January 1993.

    • (c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1971 Fund Convention as amended by this Protocol multiplied by three.

  • 7 Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification unless within that period not less than one quarter of the States that were Contracting States at the time of the adoption of the amendment by the Legal Committee have communicated to the Organization that they do not accept the amendment in which case the amendment is rejected and shall have no effect.

  • 8 An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.

  • 9 All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with Article 34, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

  • 10 When an amendment has been adopted by the Legal Committee but the eighteen-month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

ARTICLE 37
Winding Up of the Fund

  • 1 If this Protocol ceases to be in force, the Fund shall nevertheless:

    • (a) meet its obligations in respect of any incident occurring before the Protocol ceased to be in force;

    • (b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under sub-paragraph (a), including expenses for the administration of the Fund necessary for this purpose.

  • 2 The Assembly shall take all appropriate measures to complete the winding up of the Fund including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the Fund.

  • 3 For the purposes of this Article the Fund shall remain a legal person.

  • 2009, c. 21, s. 17

SCHEDULE 7(Sections 63 and 65)Text of Articles 1 to 15, 18, 20, 24, 25 and 29 of the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992

General Provisions

Article 1

For the purposes of this Protocol:

  • 1 1992 Liability Convention means the International Convention on Civil Liability for Oil Pollution Damage, 1992;

  • 2 1992 Fund Convention means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992;

  • 3 1992 Fund means the International Oil Pollution Compensation Fund, 1992, established under the 1992 Fund Convention;

  • 4 Contracting State means a Contracting State to this Protocol, unless stated otherwise;

  • 5 When provisions of the 1992 Fund Convention are incorporated by reference into this Protocol, Fund in that Convention means “Supplementary Fund”, unless stated otherwise;

  • 6 Ship, Person, Owner, Oil, Pollution Damage, Preventive Measures and Incident have the same meaning as in article I of the 1992 Liability Convention;

  • 7 Contributing Oil, Unit of Account, Ton, Guarantor and Terminal installation have the same meaning as in article 1 of the 1992 Fund Convention, unless stated otherwise;

  • 8 Established claim means a claim which has been recognised by the 1992 Fund or been accepted as admissible by decision of a competent court binding upon the 1992 Fund not subject to ordinary forms of review and which would have been fully compensated if the limit set out in article 4, paragraph 4, of the 1992 Fund Convention had not been applied to that incident;

  • 9 Assembly means the Assembly of the International Oil Pollution Compensation Supplementary Fund, 2003, unless otherwise indicated;

  • 10 Organization means the International Maritime Organization;

  • 11 Secretary-General means the Secretary-General of the Organization.

Article 2

  • 1 An International Supplementary Fund for compensation for pollution damage, to be named “The International Oil Pollution Compensation Supplementary Fund, 2003” (hereinafter “the Supplementary Fund”), is hereby established.

  • 2 The Supplementary Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognize the Director of the Supplementary Fund as the legal representative of the Supplementary Fund.

Article 3

This Protocol shall apply exclusively:

  • (a) to pollution damage caused:

    • (i) in the territory, including the territorial sea, of a Contracting State, and

    • (ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

  • (b) to preventive measures, wherever taken, to prevent or minimize such damage.

Supplementary Compensation

Article 4

  • 1 The Supplementary Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for an established claim for such damage under the terms of the 1992 Fund Convention, because the total damage exceeds, or there is a risk that it will exceed, the applicable limit of compensation laid down in article 4, paragraph 4, of the 1992 Fund Convention in respect of any one incident.

  • 2 (a) The aggregate amount of compensation payable by the Supplementary Fund under this article shall in respect of any one incident be limited, so that the total sum of that amount together with the amount of compensation actually paid under the 1992 Liability Convention and the 1992 Fund Convention within the scope of application of this Protocol shall not exceed 750 million units of account.

    • (b) The amount of 750 million units of account mentioned in paragraph 2(a) shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date determined by the Assembly of the 1992 Fund for conversion of the maximum amount payable under the 1992 Liability and 1992 Fund Conventions.

  • 3 Where the amount of established claims against the Supplementary Fund exceeds the aggregate amount of compensation payable under paragraph 2, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Protocol shall be the same for all claimants.

  • 4 The Supplementary Fund shall pay compensation in respect of established claims as defined in article 1, paragraph 8, and only in respect of such claims.

Article 5

The Supplementary Fund shall pay compensation when the Assembly of the 1992 Fund has considered that the total amount of the established claims exceeds, or there is a risk that the total amount of established claims will exceed the aggregate amount of compensation available under article 4, paragraph 4, of the 1992 Fund Convention and that as a consequence the Assembly of the 1992 Fund has decided provisionally or finally that payments will only be made for a proportion of any established claim. The Assembly of the Supplementary Fund shall then decide whether and to what extent the Supplementary Fund shall pay the proportion of any established claim not paid under the 1992 Liability Convention and the 1992 Fund Convention.

Article 6

  • 1 Subject to article 15, paragraphs 2 and 3, rights to compensation against the Supplementary Fund shall be extinguished only if they are extinguished against the 1992 Fund under article 6 of the 1992 Fund Convention.

  • 2 A claim made against the 1992 Fund shall be regarded as a claim made by the same claimant against the Supplementary Fund.

Article 7

  • 1 The provisions of article 7, paragraphs 1, 2, 4, 5 and 6, of the 1992 Fund Convention shall apply to actions for compensation brought against the Supplementary Fund in accordance with article 4, paragraph 1, of this Protocol.

  • 2 Where an action for compensation for pollution damage has been brought before a court competent under article IX of the 1992 Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Supplementary Fund for compensation under the provisions of article 4 of this Protocol in respect of the same damage. However, where an action for compensation for pollution damage under the 1992 Liability Convention has been brought before a court in a Contracting State to the 1992 Liability Convention but not to this Protocol, any action against the Supplementary Fund under article 4 of this Protocol shall at the option of the claimant be brought either before a court of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State to this Protocol competent under article IX of the 1992 Liability Convention.

  • 3 Notwithstanding paragraph 1, where an action for compensation for pollution damage against the 1992 Fund has been brought before a court in a Contracting State to the 1992 Fund Convention but not to this Protocol, any related action against the Supplementary Fund shall, at the option of the claimant, be brought either before a court of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State competent under paragraph 1.

Article 8

  • 1 Subject to any decision concerning the distribution referred to in article 4, paragraph 3 of this Protocol, any judgment given against the Supplementary Fund by a court having jurisdiction in accordance with article 7 of this Protocol, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in article X of the 1992 Liability Convention.

  • 2 A Contracting State may apply other rules for the recognition and enforcement of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent as under paragraph 1.

Article 9

  • 1 The Supplementary Fund shall, in respect of any amount of compensation for pollution damage paid by the Supplementary Fund in accordance with article 4, paragraph 1, of this Protocol, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor.

  • 2 The Supplementary Fund shall acquire by subrogation the rights that the person compensated by it may enjoy under the 1992 Fund Convention against the 1992 Fund.

  • 3 Nothing in this Protocol shall prejudice any right of recourse or subrogation of the Supplementary Fund against persons other than those referred to in the preceding paragraphs. In any event the right of the Supplementary Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation has been paid.

  • 4 Without prejudice to any other rights of subrogation or recourse against the Supplementary Fund which may exist, a Contracting State or agency thereof which has paid compensation for pollution damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Protocol.

Contributions

Article 10

  • 1 Annual contributions to the Supplementary Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in article 11, paragraph 2(a) or (b), has received in total quantities exceeding 150,000 tons:

    • (a) in the ports or terminal installations in the territory of that State contributing oil carried by sea to such ports or terminal installations; and

    • (b) in any installations situated in the territory of that Contracting State contributing oil which has been carried by sea and discharged in a port or terminal installation of a non-Contracting State, provided that contributing oil shall only be taken into account by virtue of this sub-paragraph on first receipt in a Contracting State after its discharge in that non-Contracting State.

  • 2 The provisions of article 10, paragraph 2, of the 1992 Fund Convention shall apply in respect of the obligation to pay contributions to the Supplementary Fund.

Article 11

  • 1 With a view to assessing the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the Assembly shall for each calendar year make an estimate in the form of a budget of:

    • (i) Expenditure

      • (a) costs and expenses of the administration of the Supplementary Fund in the relevant year and any deficit from operations in preceding years;

      • (b) payments to be made by the Supplementary Fund in the relevant year for the satisfaction of claims against the Supplementary Fund due under article 4, including repayments on loans previously taken by the Supplementary Fund for the satisfaction of such claims;

    • (ii) Income

      • (a) surplus funds from operations in preceding years, including any interest;

      • (b) annual contributions, if required to balance the budget;

      • (c) any other income.

  • 2 The Assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director of the Supplementary Fund shall, in respect of each Contracting State, calculate for each person referred to in article 10, the amount of that person’s annual contribution:

    • (a) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(a) on the basis of a fixed sum for each ton of contributing oil received in the relevant State by such person during the preceding calendar year; and

    • (b) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(b) on the basis of a fixed sum for each ton of contributing oil received by such person during the calendar year preceding that in which the incident in question occurred, provided that State was a Contracting State to this Protocol at the date of the incident.

  • 3 The sums referred to in paragraph 2 shall be arrived at by dividing the relevant total amount of contributions required by the total amount of contributing oil received in all Contracting States in the relevant year.

  • 4 The annual contribution shall be due on the date to be laid down in the Internal Regulations of the Supplementary Fund. The Assembly may decide on a different date of payment.

  • 5 The Assembly may decide, under conditions to be laid down in the Financial Regulations of the Supplementary Fund, to make transfers between funds received in accordance with paragraph 2(a) and funds received in accordance with paragraph 2(b).

Article 12

  • 1 The provisions of article 13 of the 1992 Fund Convention shall apply to contributions to the Supplementary Fund.

  • 2 A Contracting State itself may assume the obligation to pay contributions to the Supplementary Fund in accordance with the procedure set out in article 14 of the 1992 Fund Convention.

Article 13

  • 1 Contracting States shall communicate to the Director of the Supplementary Fund information on oil receipts in accordance with article 15 of the 1992 Fund Convention provided, however, that communications made to the Director of the 1992 Fund under article 15, paragraph 2, of the 1992 Fund Convention shall be deemed to have been made also under this Protocol.

  • 2 Where a Contracting State does not fulfil its obligations to submit the communication referred to in paragraph 1 and this results in a financial loss for the Supplementary Fund, that Contracting State shall be liable to compensate the Supplementary Fund for such loss. The Assembly shall, on the recommendation of the Director of the Supplementary Fund, decide whether such compensation shall be payable by that Contracting State.

Article 14

  • 1 Notwithstanding article 10, for the purposes of this Protocol there shall be deemed to be a minimum receipt of 1 million tons of contributing oil in each Contracting State.

  • 2 When the aggregate quantity of contributing oil received in a Contracting State is less than 1 million tons, the Contracting State shall assume the obligations that would be incumbent under this Protocol on any person who would be liable to contribute to the Supplementary Fund in respect of oil received within the territory of that State in so far as no liable person exists for the aggregated quantity of oil received.

Article 15

  • 1 If in a Contracting State there is no person meeting the conditions of article 10, that Contracting State shall for the purposes of this Protocol inform the Director of the Supplementary Fund thereof.

  • 2 No compensation shall be paid by the Supplementary Fund for pollution damage in the territory, territorial sea or exclusive economic zone or area determined in accordance with article 3(a)(ii), of this Protocol, of a Contracting State in respect of a given incident or for preventive measures, wherever taken, to prevent or minimize such damage, until the obligations to communicate to the Director of the Supplementary Fund according to article 13, paragraph 1 and paragraph 1 of this article have been complied with in respect of that Contracting State for all years prior to the occurrence of that incident. The Assembly shall determine in the Internal Regulations the circumstances under which a Contracting State shall be considered as having failed to comply with its obligations.

  • 3 Where compensation has been denied temporarily in accord-ance with paragraph 2, compensation shall be denied permanently in respect of that incident if the obligations to communicate to the Director of the Supplementary Fund under article 13, paragraph 1 and paragraph 1 of this article, have not been complied with within one year after the Director of the Supplementary Fund has notified the Contracting State of its failure to report.

  • 4 Any payments of contributions due to the Supplementary Fund shall be set off against compensation due to the debtor, or the debtor’s agents.

Article 18
Transitional Provisions

  • 1 Subject to paragraph 4, the aggregate amount of the annual contributions payable in respect of contributing oil received in a single Contracting State during a calendar year shall not exceed 20% of the total amount of annual contributions pursuant to this Protocol in respect of that calendar year.

  • 2 If the application of the provisions in article 11, paragraphs 2 and 3, would result in the aggregate amount of the contributions payable by contributors in a single Contracting State in respect of a given calendar year exceeding 20% of the total annual contributions, the contributions payable by all contributors in that State shall be reduced pro rata so that their aggregate contributions equal 20% of the total annual contributions to the Supplementary Fund in respect of that year.

  • 3 If the contributions payable by persons in a given Contracting State shall be reduced pursuant to paragraph 2, the contributions payable by persons in all other Contracting States shall be increased pro rata so as to ensure that the total amount of contributions payable by all persons liable to contribute to the Supplementary Fund in respect of the calendar year in question will reach the total amount of contributions decided by the Assembly.

  • 4 The provisions in paragraphs 1 to 3 shall operate until the total quantity of contributing oil received in all Contracting States in a calendar year, including the quantities referred to in article 14, paragraph 1, has reached 1,000 million tons or until a period of 10 years after the date of entry into force of this Protocol has elapsed, whichever occurs earlier.

Final Clauses

Article 20
Information on Contributing Oil

Before this Protocol comes into force for a State, that State shall, when signing this Protocol in accordance with article 19, paragraph 2(a), or when depositing an instrument referred to in article 19, paragraph 4 of this Protocol, and annually thereafter at a date to be determined by the Secretary-General, communicate to the Secretary-General the name and address of any person who in respect of that State would be liable to contribute to the Supplementary Fund pursuant to article 10 as well as data on the relevant quantities of contributing oil received by any such person in the territory of that State during the preceding calendar year.

Article 24
Amendment of Compensation Limit

  • 1 Upon the request of at least one quarter of the Contracting States, any proposal to amend the limit of the amount of compensation laid down in article 4, paragraph 2 (a), shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States.

  • 2 Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization for consideration at a date at least six months after the date of its circulation.

  • 3 All Contracting States to this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

  • 4 Amendments shall be adopted by a two-thirds majority of the Contracting States present and voting in the Legal Committee, expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States shall be present at the time of voting.

  • 5 When acting on a proposal to amend the limit, the Legal Committee shall take into account the experience of incidents and in particular the amount of damage resulting therefrom and changes in the monetary values.

  • 6 (a) No amendments of the limit under this article may be considered before the date of entry into force of this Protocol nor less than three years from the date of entry into force of a previous amendment under this article.

    • (b) The limit may not be increased so as to exceed an amount which corresponds to the limit laid down in this Protocol increased by six per cent per year calculated on a compound basis from the date when this Protocol is opened for signature to the date on which the Legal Committee’s decision comes into force.

    • (c) The limit may not be increased so as to exceed an amount which corresponds to the limit laid down in this Protocol multiplied by three.

  • 7 Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of twelve months after the date of notification, unless within that period not less than one quarter of the States that were Contracting States at the time of the adoption of the amendment by the Legal Committee have communicated to the Organization that they do not accept the amendment, in which case the amendment is rejected and shall have no effect.

  • 8 An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force twelve months after its acceptance.

  • 9 All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with article 26, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

  • 10 When an amendment has been adopted by the Legal Committee but the twelve-month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7 . In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

Article 25
Protocols to the 1992 Fund Convention

  • 1 If the limits laid down in the 1992 Fund Convention have been increased by a Protocol thereto, the limit laid down in article 4, paragraph 2(a), may be increased by the same amount by means of the procedure set out in article 24. The provisions of article 24, paragraph 6, shall not apply in such cases.

  • 2 If the procedure referred to in paragraph 1 has been applied, any subsequent amendment of the limit laid down in article 4, paragraph 2, by application of the procedure in article 24 shall, for the purpose of article 24, paragraphs 6(b) and (c), be calculated on the basis of the new limit as increased in accordance with paragraph 1.

Article 29
Winding up of the Supplementary Fund

  • 1 If this Protocol ceases to be in force, the Supplementary Fund shall nevertheless:

    • (a) meet its obligations in respect of any incident occurring before the Protocol ceased to be in force;

    • (b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under paragraph 1(a), including expenses for the administration of the Supplementary Fund necessary for this purpose.

  • 2 The Assembly shall take all appropriate measures to complete the winding up of the Supplementary Fund, including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the Supplementary Fund.

  • 3 For the purposes of this article the Supplementary Fund shall remain a legal person.

  • 2009, c. 21, s. 17

SCHEDULE 8(Section 69)Text of Articles 1 to 10 of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

ARTICLE 1
Definitions

For the purposes of this Convention:

  • 1 Ship means any seagoing vessel and seaborne craft, of any type whatsoever.

  • 2 Person means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.

  • 3 Shipowner means the owner, including the registered owner, bareboat charterer, manager and operator of the ship.

  • 4 Registered owner means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, registered owner shall mean such company.

  • 5 Bunker oil means any hydrocarbon mineral oil, including lubricating oil, used or intended to be used for the operation or propulsion of the ship, and any residues of such oil.

  • 6 Civil Liability Convention means the International Convention on Civil Liability for Oil Pollution Damage, 1992, as amended.

  • 7 Preventive measures means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.

  • 8 Incident means any occurrence or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage.

  • 9 Pollution damage means:

    • (a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of bunker oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and

    • (b) the costs of preventive measures and further loss or damage caused by preventive measures.

  • 10 State of the ship’s registry means, in relation to a registered ship, the State of registration of the ship and, in relation to an unregistered ship, the State whose flag the ship is entitled to fly.

  • 11 Gross tonnage means gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex 1 of the International Convention on Tonnage Measurement of Ships, 1969.

  • 12 Organization means the International Maritime Organization.

  • 13 Secretary-General means the Secretary-General of the Organization.

ARTICLE 2
Scope of Application

This Convention shall apply exclusively:

  • (a) to pollution damage caused:

    • (i) in the territory, including the territorial sea, of a State Party, and

    • (ii) in the exclusive economic zone of a State Party, established in accordance with international law, or, if a State Party has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

  • (b) to preventive measures, wherever taken, to prevent or minimize such damage.

ARTICLE 3
Liability of the Shipowner

  • 1 Except as provided in paragraphs 3 and 4, the shipowner at the time of an incident shall be liable for pollution damage caused by any bunker oil on board or originating from the ship, provided that, if an incident consists of a series of occurrences having the same origin, the liability shall attach to the shipowner at the time of the first of such occurrences.

  • 2 Where more than one person is liable in accordance with paragraph 1, their liability shall be joint and several.

  • 3 No liability for pollution damage shall attach to the shipowner if the shipowner proves that:

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

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

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

  • 4 If the shipowner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the shipowner may be exonerated wholly or partially from liability to such person.

  • 5 No claim for compensation for pollution damage shall be made against the shipowner otherwise than in accordance with this Convention.

  • 6 Nothing in this Convention shall prejudice any right of recourse of the shipowner which exists independently of this Convention.

ARTICLE 4
Exclusions

  • 1 This Convention shall not apply to pollution damage as defined in the Civil Liability Convention, whether or not compensation is payable in respect of it under that Convention.

  • 2 Except as provided in paragraph 3, the provisions of this Convention shall not apply to warships, naval auxiliary or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service.

  • 3 A State Party may decide to apply this Convention to its warships or other ships described in paragraph 2, in which case it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

  • 4 With respect to ships owned by a State Party and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in article 9 and shall waive all defences based on its status as a sovereign State.

ARTICLE 5
Incidents Involving Two or More Ships

When an incident involving two or more ships occurs and pollution damage results therefrom, the shipowners of all the ships concerned, unless exonerated under article 3, shall be jointly and severally liable for all such damage which is not reasonably separable.

ARTICLE 6
Limitation of Liability

Nothing in this Convention shall affect the right of the shipowner and the person or persons providing insurance or other financial security to limit liability under any applicable national or international regime, such as the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.

ARTICLE 7
Compulsory Insurance or Financial Security

  • 1 The registered owner of a ship having a gross tonnage greater than 1000 registered in a State Party shall be required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover the liability of the registered owner for pollution damage in an amount equal to the limits of liability under the applicable national or international limitation regime, but in all cases, not exceeding an amount calculated in accordance with the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.

  • 2 A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party such certificate shall be issued or certified by the appropriate authority of the State of the ship’s registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of any State Party. This certificate shall be in the form of the model set out in the annex to this Convention and shall contain the following particulars:

    • (a) name of ship, distinctive number or letters and port of registry;

    • (b) name and principal place of business of the registered owner;

    • (c) IMO ship identification number;

    • (d) type and duration of security;

    • (e) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established;

    • (f) period of validity of the certificate which shall not be longer than the period of validity of the insurance or other security.

  • 3 (a) A State Party may authorize either an institution or an organization recognized by it to issue the certificate referred to in paragraph 2. Such institution or organization shall inform that State of the issue of each certificate. In all cases, the State Party shall fully guarantee the completeness and accuracy of the certificate so issued and shall undertake to ensure the necessary arrangements to satisfy this obligation.

    • (b) A State Party shall notify the Secretary-General of :

      • (i) the specific responsibilities and conditions of the authority delegated to an institution or organization recognised by it;

      • (ii) the withdrawal of such authority; and

      • (iii) the date from which such authority or withdrawal of such authority takes effect.

      An authority delegated shall not take effect prior to three months from the date on which notification to that effect was given to the Secretary-General.

    • (c) The institution or organization authorized to issue certificates in accordance with this paragraph shall, as a minimum, be authorized to withdraw these certificates if the conditions under which they have been issued are not maintained. In all cases the institution or organization shall report such withdrawal to the State on whose behalf the certificate was issued.

  • 4 The certificate shall be in the official language or languages of the issuing State. If the language used is not English, French or Spanish, the text shall include a translation into one of these languages and, where the State so decides, the official language of the State may be omitted.

  • 5 The certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship’s registry or, if the ship is not registered in a State Party, with the authorities issuing or certifying the certificate.

  • 6 An insurance or other financial security shall not satisfy the requirements of this article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2 of this article, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 5 of this article, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this article.

  • 7 The State of the ship’s registry shall, subject to the provisions of this article, determine the conditions of issue and validity of the certificate.

  • 8 Nothing in this Convention shall be construed as preventing a State Party from relying on information obtained from other States or the Organization or other international organisations relating to the financial standing of providers of insurance or financial security for the purposes of this Convention. In such cases, the State Party relying on such information is not relieved of its responsibility as a State issuing the certificate required by paragraph 2.

  • 9 Certificates issued or certified under the authority of a State Party shall be accepted by other States Parties for the purposes of this Convention and shall be regarded by other States Parties as having the same force as certificates issued or certified by them even if issued or certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the insurance certificate is not financially capable of meeting the obligations imposed by this Convention.

  • 10 Any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the registered owner’s liability for pollution damage. In such a case the defendant may invoke the defences (other than bankruptcy or winding up of the shipowner) which the shipowner would have been entitled to invoke, including limitation pursuant to article 6. Furthermore, even if the shipowner is not entitled to limitation of liability according to article 6, the defendant may limit liability to an amount equal to the amount of the insurance or other financial security required to be maintained in accordance with paragraph 1. Moreover, the defendant may invoke the defence that the pollution damage resulted from the wilful misconduct of the shipowner, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the shipowner against the defendant. The defendant shall in any event have the right to require the shipowner to be joined in the proceedings.

  • 11 A State Party shall not permit a ship under its flag to which this article applies to operate at any time, unless a certificate has been issued under paragraphs 2 or 14.

  • 12 Subject to the provisions of this article, each State Party shall ensure, under its national law, that insurance or other security, to the extent specified in paragraph 1, is in force in respect of any ship having a gross tonnage greater than 1000, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an offshore facility in its territorial sea.

  • 13 Notwithstanding the provisions of paragraph 5, a State Party may notify the Secretary-General that, for the purposes of paragraph 12, ships are not required to carry on board or to produce the certificate required by paragraph 2, when entering or leaving ports or arriving at or leaving from offshore facilities in its territory, provided that the State Party which issues the certificate required by paragraph 2 has notified the Secretary-General that it maintains records in an electronic format, accessible to all States Parties, attesting the existence of the certificate and enabling States Parties to discharge their obligations under paragraph 12.

  • 14 If insurance or other financial security is not maintained in respect of a ship owned by a State Party, the provisions of this article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authority of the State of the ship’s registry stating that the ship is owned by that State and that the ship’s liability is covered within the limit prescribed in accordance with paragraph 1. Such a certificate shall follow as closely as possible the model prescribed by paragraph 2.

  • 15 A State may, at the time of ratification, acceptance, approval of, or accession to this Convention, or at any time thereafter, declare that this article does not apply to ships operating exclusively within the area of that State referred to in article 2(a)(i).

ARTICLE 8
Time Limits

Rights to compensation under this Convention shall be extinguished unless an action is brought thereunder within three years from the date when the damage occurred. However, in no case shall an action be brought more than six years from the date of the incident which caused the damage. Where the incident consists of a series of occurrences, the six-years’ period shall run from the date of the first such occurrence.

ARTICLE 9
Jurisdiction

  • 1 Where an incident has caused pollution damage in the territory, including the territorial sea, or in an area referred to in article 2(a)(ii) of one or more States Parties, or preventive measures have been taken to prevent or minimise pollution damage in such territory, including the territorial sea, or in such area, actions for compensation against the shipowner, insurer or other person providing security for the shipowner’s liability may be brought only in the courts of any such States Parties.

  • 2 Reasonable notice of any action taken under paragraph 1 shall be given to each defendant.

  • 3 Each State Party shall ensure that its courts have jurisdiction to entertain actions for compensation under this Convention.

ARTICLE 10
Recognition and Enforcement

  • 1 Any judgement given by a Court with jurisdiction in accordance with article 9 which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognised in any State Party, except:

    • (a) where the judgement was obtained by fraud; or

    • (b) where the defendant was not given reasonable notice and a fair opportunity to present his or her case.

  • 2 A judgement recognised under paragraph 1 shall be enforceable in each State Party as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.

ANNEXCertificate of Insurance or Other Financial Security in Respect of Civil Liability for Bunker Oil Pollution Damage

Issued in accordance with the provisions of article 7 of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

Name of Ship

Distinctive number or letters

IMO Ship Identification Number

Port of registry

Name and full address of the principal place of business of the registered owner

This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of article 7 of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.

Type of Securityblank line

Duration of Securityblank line

Name and address of the insurer(s) and/or guarantor(s)

Nameblank line

Addressblank line

This certificate is valid untilblank line

Issued or certified by the Government ofblank line

blank line

(Full designation of the State)

OR

The following text should be used when a State Party avails itself of article 7(3)

The present certificate is issued under the authority of the Government of blank line (full designation of the State) by blank line (name of institution or organization)

At (Place)blank lineOn (Date)

Signature and Title of issuing or certifying official

Explanatory Notes:

  • 1 
    If desired, the designation of the State may include a reference to the competent public authority of the country where the Certificate is issued.
  • 2 
    If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated.
  • 3 
    If security is furnished in several forms, these should be enumerated.
  • 4 
    The entry “Duration of Security” must stipulate the date on which such security takes effect.
  • 5 
    The entry “Address” of the insurer(s) and/or guarantor(s) must indicate the principal place of business of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated.
  • 2009, c. 21, s. 17

RELATED PROVISIONS

  • — 2009, c. 21, s. 19

    • 19 A claim to recover loss, damage, costs or expenses filed with the Administrator under section 85 of the Marine Liability Act before the day on which this section comes into force is deemed to have been filed under section 103 of the Marine Liability Act, as enacted by section 11.

  • — 2009, c. 21, s. 20

    • 20 The Administrator and Deputy Administrator who are in office on the day on which this section comes into force shall continue to perform their duties and functions as if they had been appointed under section 94 or 95, as the case may be, of the Marine Liability Act, as enacted by section 11.

AMENDMENTS NOT IN FORCE

  • — 2014, c. 29, s. 28

    • 2009, c. 21, s. 11

      28 The heading of Part 6 of the Marine Liability Act is replaced by the following:

      Liability and Compensation — Oil and Hazardous and Noxious Substances

  • — 2014, c. 29, s. 29(1)

      • 29 (1) The definition owner in subsection 47(1) of the English version of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

        • (e) in relation to the Hazardous and Noxious Substances Convention, has the same meaning as in Article 1 of that Convention.

  • — 2014, c. 29, s. 31

    • 31 The Act is amended by adding the following after section 74:

      Hazardous and Noxious Substances Convention
      • Force of law

        74.01 Articles 1 to 5, 7 to 23, 37 to 41, 45, 48 and 52 of the Hazardous and Noxious Substances Convention — that are set out in Part 1 of Schedule 9 — have the force of law in Canada.

      • Meaning of receiver

        74.1 For the purposes of Articles 1, 7, 18, 19 and 21 of the Hazardous and Noxious Substances Convention, receiver has the meaning assigned by paragraph 4(a) of Article 1 of that Convention.

  • — 2014, c. 29, s. 33

    • 33 The Act is amended by adding the following in numerical order:

      • Appropriate authority

        74.21 For the purposes of Article 12 of the Hazardous and Noxious Substances Convention, the Minister is the appropriate authority for Canada.

      • Schedule 9 — limits amendment

        74.22 The Governor in Council may, by regulation, amend Part 1 of Schedule 9 to implement an amendment — to the limits of liability that are specified in paragraph 1 of Article 9 or paragraph 5 of Article 14 of the Hazardous and Noxious Substances Convention — that is made in accordance with Article 48 of that Convention.

      • Amendment to Part 2 of Schedule 9

        74.23 The Governor in Council may, by regulation, amend Part 2 of Schedule 9 to add or delete a declaration made by Canada under Article 5 of the Hazardous and Noxious Substances Convention.

      • Liability for damage and related costs

        74.24 The liability of the owner of a ship in relation to preventive measures, for the purposes of the Hazardous and Noxious Substances Convention, also includes

        • (a) the costs and expenses incurred by the Minister of Fisheries and Oceans, by a response organization as defined in section 165 of the Canada Shipping Act, 2001, by any other person in Canada or by 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 damage caused by hazardous and noxious substances, including measures taken in anticipation of an incident, 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 hazardous and noxious substances, the costs and expenses incurred

          • (i) by 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) by 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.

      • Admiralty Court’s jurisdiction — limitation fund
        • 74.25 (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under the Hazardous and Noxious Substances Convention.

        • 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 Hazardous and Noxious Substances 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.

        • 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 Hazardous and Noxious Substances Convention has been commenced, shall stay the proceedings and refer all claims under that Convention to the Admiralty Court.

      • Admiralty Court’s powers
        • 74.26 (1) When a claim is made or apprehended against a person in respect of liability that is limited under the Hazardous and Noxious Substances 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; 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 37 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.

        • 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.

        • 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 9 of the Hazardous and Noxious Substances Convention.

      • Public notice
        • 74.27 (1) The person constituting the fund shall, as soon as feasible, give notice of the fund’s constitution in the Canada Gazette and in a newspaper in general circulation in the region where the incident occurs.

        • Proof of notice

          (2) Within 30 days after the fund’s constitution, the person constituting it shall file the public notices in the Admiralty Court.

        • 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.

      • Absence of certificate
        • 74.28 (1) Unless a ship carrying hazardous and noxious substances carries a certificate described in Article 12 of the Hazardous and Noxious Substances Convention issued in accordance with subsection 74.29(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force, 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.

        • 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.

      • By whom certificate to be issued
        • 74.29 (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 Hazardous and Noxious Substances 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 Hazardous and Noxious Substances Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.

        • 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 Hazardous and Noxious Substances Convention, the Minister shall issue the certificate to the owner of the ship, if the Minister is satisfied that a contract of insurance or other security satisfying the requirements of Article 12 of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

        • When Minister may refuse certificate

          (3) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 74.28(1), or that the contract of insurance or other security will not cover the owner’s liability under the Hazardous and Noxious Substances Convention, the Minister may refuse to issue the certificate.

        • 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 74.28(1), or that the contract of insurance or other security no longer covers the owner’s liability under the Hazardous and Noxious Substances Convention, the Minister may revoke the certificate.

  • — 2014, c. 29, s. 35

    • 35 The Act is amended by adding the following in numerical order:

      • Legal capacity of HNS Fund

        74.31 For the purposes of the rights and obligations referred to in section 74.32, the HNS Fund has the capacity, rights and obligations of a natural person, and the Director of the HNS Fund is its legal representative.

      • HNS Fund to be party to legal proceedings
        • 74.32 (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 74.24 or Article 7 of the Hazardous and Noxious Substances Convention,

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

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

        • Method of service on HNS 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 HNS Fund under paragraph (1)(a) may be effected by registered mail.

  • — 2014, c. 29, s. 37

    • 2009, c. 21, s. 11

      37 The portion of section 76 of the English version of the Act before paragraph (a) is replaced by the following:

      • Geographical application

        76 This Division applies in respect of actual or anticipated pollution damage that is not 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,

  • — 2014, c. 29, s. 38

    • 38 The definition foreign judgement in section 80 of the Act is amended by adding “or” at the end of paragraph (d) and by adding the following after paragraph (d):

      • (e) Hazardous and Noxious Substances Convention within the meaning of subsection 47(1).

  • — 2014, c. 29, s. 39

    • 2009, c. 21, s. 11
      • 39 (1) Paragraph 90(a) of the Act is replaced by the following:

        • (a) imposing a fee for the issuance of a certificate under section 56, 74 or 74.29;

      • 2009, c. 21, s. 11

        (2) Paragraph 90(c) of the Act is replaced by the following:

        • (c) respecting the form and content of the notice to be given under subsection 54(1) or 74.27(1);

      • (3) Section 90 of the Act is amended by adding the following after paragraph (d):

        • (d.1) extending the application of the Hazardous and Noxious Substances 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;

      • (4) Section 90 of the Act is amended by striking out “and” at the end of paragraph (g) and by adding the following after paragraph (g):

        • (g.1) respecting conditions under which certificates may be issued, refused or revoked for the purposes of subsections 74.29(2) to (4); and

  • — 2014, c. 29, s. 40(1)

      • 40 (1) The definition owner in subsection 91(1) of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (b):

        • (b.1) in relation to a ship subject to the Hazardous and Noxious Substances Convention, has the same meaning as in Article 1 of that Convention; and

  • — 2014, c. 29, s. 41

    • 2009, c. 21, s. 11
      • 41 (1) The portion of subsection 101(1) of the Act before paragraph (c) is replaced by the following:

        • 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 — except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — for the matters referred to in sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention, if

            • (a) all reasonable steps have been taken — and those steps have been unsuccessful — to recover payment of compensation from the owner of the ship or from

              • (i) the International Fund and the Supplementary Fund, in the case of a ship within the meaning of Article I of the Civil Liability Convention, or

              • (ii) the HNS Fund, in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention;

            • (b) the owner of the ship is not liable by reason of any of the defences described in subsection 77(3), Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention and, in addition, none of the International Fund, the Supplementary Fund and the HNS Fund is liable;

      • (2) Paragraph 101(1)(c) of the Act is amended by striking out “and” at the end of subparagraph (i) and by adding the following after subparagraph (i):

        • (i.1) in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention, the owner’s maximum liability under that Convention to the extent that the excess is not recoverable from the HNS Fund, and

      • (3) Subsection 101(1) of the Act is amended by adding the following after paragraph (e):

        • (e.1) the owner is financially incapable of meeting their obligations under section 74.24 and Article 7 of the Hazardous and Noxious Substances Convention, to the extent that the obligation is not recoverable from the HNS Fund;

  • — 2014, c. 29, s. 42, as amended by 2018, c. 27, s. 746(5)

    • 2009, c. 21, s. 11
      • 42 (1) Subsection 102(1) of the Act is replaced by the following:

        • Action by Administrator
          • 102 (1) If there is an occurrence that gives rise to the liability of an owner of a ship in relation to oil — except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — under section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances 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 Article V of the Civil Liability Convention, Article 6 of the Convention that is defined in section 24 or Article 9 of the Hazardous and Noxious Substances Convention.

      • (2) Subsection 102(3) of the Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after paragraph (a):

        • (a.1) in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention, a fund has been constituted under subsection 74.25(2); and

  • — 2014, c. 29, s. 43

    • 2009, c. 21, s. 11
      • 43 (1) Subsection 103(1) of the Act is replaced by the following:

        • Claims filed with Administrator
          • 103 (1) Except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, a person who has suffered loss or damage or incurred costs or expenses referred to in section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention in respect of actual or anticipated oil pollution damage may, in addition to any right the person has against the Ship-source Oil Pollution Fund under section 101, file a claim with the Administrator for the loss, damage, costs or expenses.

      • 2009, c. 21, s. 11

        (2) Subsection 103(3) of the Act is replaced by the following:

        • Exception

          (3) Subsection (1) does not apply to a response organization referred to in paragraph 51(a), 71(a), 74.24(a) or 77(1)(b) or to a person in a state other than Canada.

  • — 2014, c. 29, s. 44

    • 2009, c. 21, s. 11

      44 Paragraph 104(a) of the Act is replaced by the following:

      • (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, the Bunkers Convention or the Hazardous and Noxious Substances Convention; or

  • — 2014, c. 29, s. 45

    • 2009, c. 21, s. 11
      • 45 (1) Paragraph 106(3)(b) of the Act is replaced by the following:

        • (b) the claimant is then precluded from pursuing any rights that they may have had, except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, against any person in respect of matters referred to in sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention in relation to the occurrence to which the offer of compensation relates;

      • 2009, c. 21, s. 11

        (2) Paragraph 106(3)(d) of the Act is replaced by the following:

        • (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, the HNS 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 or the Hazardous and Noxious Substances Convention and may enforce any security provided to or enforceable by the claimant.

  • — 2014, c. 29, s. 46

    • 2009, c. 21, s. 11

      46 The portion of subsection 109(1) of the Act before paragraph (a) is replaced by the following:

      • Proceedings against owner of ship
        • 109 (1) Except in the case of proceedings relating to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, if a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter relating to oil and referred to in section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention,

  • — 2014, c. 29, s. 47

    • 2009, c. 21, s. 11

      47 The heading before section 112 of the Act is replaced by the following:

      Levies to be Paid to the Ship-source Oil Pollution Fund, the International Fund, the Supplementary Fund and the HNS Fund

  • — 2014, c. 29, s. 49

    • 2009, c. 21, s. 11
      • 49 (1) Subsection 116(1) of the Act is replaced by the following:

        • 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, the Supplementary Fund or the HNS 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.

      • 2009, c. 21, s. 11

        (2) Paragraphs 116(2)(a) and (b) of the Act are replaced by the following:

        • (a) if the claim is based on paragraph 77(1)(a), Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention, from the day on which the oil pollution damage occurs;

        • (b) if the claim is based on section 51, 71 or 74.24, paragraph 77(1)(b) or (c), Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances 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; or

  • — 2014, c. 29, s. 50(2)

      • 50 (2) Section 117 of the Act is amended by adding the following after subsection (1):

        • Payments by Canada to HNS Fund

          (1.01) The Administrator shall — only in relation to oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention — direct payments to be made out of the Ship-source Oil Pollution Fund to the HNS Fund in accordance with Articles 16 to 20 of that Convention.

  • — 2014, c. 29, s. 50(5), as amended by 2018, c. 27, s. 746(15)

      • 50 (5) Subsection 117.2(4) of the Act is replaced by the following:

        • Administrator’s liability

          (4) The Administrator is liable for any financial loss to the International Fund, the Supplementary Fund or the HNS Fund, as the case may be, as a result of a failure to communicate information under subsection (1) or (3).

  • — 2014, c. 29, s. 52

    • 2009, c. 21, s. 11
      • 52 (1) Subsection 129(1) of the Act is replaced by the following:

        • Detention
          • 129 (1) If a designated officer believes, on reasonable grounds, that an offence in respect of section 55, 73 or 74.28 or regulations made under paragraph 39(a) or (b) has been committed by or in respect of a ship, the officer may make a detention order in respect of the ship.

      • 2009, c. 21, s. 11

        (2) Paragraph 129(4)(a) of the Act is replaced by the following:

        • (a) indicate the measures that are to be taken to ensure compliance with section 55, 73 or 74.28 or regulations made under paragraph 39(a) or (b) and that must be taken for the detention order to be revoked within any time specified in the order; and

  • — 2014, c. 29, s. 53

    • 2009, c. 21, s. 11

      53 Section 131 of the Act is replaced by the following:

      • Contraventions

        131 Every person or ship that contravenes subsection 55(1) or (2), 73(1) or (2), 74.28(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 $100,000.

  • — 2014, c. 29, s. 55

    • 2009, c. 21, s. 11

      55 The portion of paragraph 136(1)(a) of the Act before subparagraph (i) is replaced by the following:

      • (a) an information is laid in respect of an offence under subsection 55(1) or (2), 73(1) or (2) or 74.28(1) or (2) or of a regulation made under paragraph 39(a) or (b), and

  • — 2014, c. 29, s. 56

    • 56 The Act is amended by adding, after Schedule 8, the Schedule 9 set out in the schedule to this Act.

      SCHEDULE 9(Sections 74.01, 74.22 and 74.23)

      PART 1
      Text of Articles 1 to 5, 7 to 23, 37 to 41, 45, 48 and 52 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010

      Chapter I
      General Provisions

      Definitions
      Article 1

      For the purposes of this Convention:

      • 1 Ship means any seagoing vessel and seaborne craft, of any type whatsoever.

      • 2 Person means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.

      • 3 Owner means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, “owner” shall mean such company.

      • 4 Receiver means either:

        • (a) the person who physically receives contributing cargo discharged in the ports and terminals of a State Party; provided that if at the time of receipt the person who physically receives the cargo acts as an agent for another who is subject to the jurisdiction of any State Party, then the principal shall be deemed to be the receiver, if the agent discloses the principal to the HNS Fund; or

        • (b) the person in the State Party who in accordance with the national law of that State Party is deemed to be the receiver of contributing cargo discharged in the ports and terminals of a State Party, provided that the total contributing cargo received according to such national law is substantially the same as that which would have been received under (a).

      • 5 Hazardous and noxious substances (HNS) means:

        • (a) any substances, materials and articles carried on board a ship as cargo, referred to in (i) to (vii) below:

          • (i) oils, carried in bulk, as defined in regulation 1 of annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended;

          • (ii) noxious liquid substances, carried in bulk, as defined in regulation 1.10 of Annex II to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended, and those substances and mixtures provisionally categorized as falling in pollution category X, Y or Z in accordance with regulation 6.3 of the said Annex II;

          • (iii) dangerous liquid substances carried in bulk listed in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, as amended, and the dangerous products for which the preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code;

          • (iv) dangerous, hazardous and harmful substances, materials and articles in packaged form covered by the International Maritime Dangerous Goods Code, as amended;

          • (v) liquefied gases as listed in chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk, as amended, and the products for which preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code;

          • (vi) liquid substances carried in bulk with a flashpoint not exceeding 60°C (measured by a closed-cup test);

          • (vii) solid bulk materials possessing chemical hazards covered by the International Maritime Solid Bulk Cargoes Code, as amended, to the extent that these substances are also subject to the provisions of the International Maritime Dangerous Goods Code in effect in 1996, when carried in packaged form; and

        • (b) residues from the previous carriage in bulk of substances referred to in (a)(i) to (iii) and (v) to (vii) above.

      • 5bis Bulk HNS means any hazardous and noxious substances referred to in article 1, paragraph 5(a)(i) to (iii) and (v) to (vii) and paragraph 5(b).

      • 5ter Packaged HNS means any hazardous and noxious substances referred to in article 1, paragraph 5(a)(iv).

      • 6 Damage means:

        • (a) loss of life or personal injury on board or outside the ship carrying the hazardous and noxious substances caused by those substances;

        • (b) loss of or damage to property outside the ship carrying the hazardous and noxious substances caused by those substances;

        • (c) loss or damage by contamination of the environment caused by the hazardous and noxious substances, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and

        • (d) the costs of preventive measures and further loss or damage caused by preventive measures.

        Where it is not reasonably possible to separate damage caused by the hazardous and noxious substances from that caused by other factors, all such damage shall be deemed to be caused by the hazardous and noxious substances except if, and to the extent that, the damage caused by other factors is damage of a type referred to in article 4, paragraph 3.

        In this paragraph, caused by those substances means caused by the hazardous or noxious nature of the substances.

      • 7 Preventive measures means any reasonable measures taken by any person after an incident has occurred to prevent or minimize damage.

      • 8 Incident means any occurrence or series of occurrences having the same origin, which causes damage or creates a grave and imminent threat of causing damage.

      • 9 Carriage by sea means the period from the time when the hazardous and noxious substances enter any part of the ship’s equipment, on loading, to the time they cease to be present in any part of the ship’s equipment, on discharge. If no ship’s equipment is used, the period begins and ends respectively when the hazardous and noxious substances cross the ship’s rail.

      • 10 Contributing cargo means any bulk HNS which is carried by sea as cargo to a port or terminal in the territory of a State Party and discharged in that State. Cargo in transit which is transferred directly, or through a port or terminal, from one ship to another, either wholly or in part, in the course of carriage from the port or terminal of original loading to the port or terminal of final destination shall be considered as contributing cargo only in respect of receipt at the final destination.

      • 11 The HNS Fund means the International Hazardous and Noxious Substances Fund established under article 13.

      • 12 Unit of account means the Special Drawing Right as defined by the International Monetary Fund.

      • 13 State of the ship’s registry means in relation to a registered ship the State of registration of the ship, and in relation to an unregistered ship the State whose flag the ship is entitled to fly.

      • 14 Terminal means any site for the storage of hazardous and noxious substances received from waterborne transportation, including any facility situated off-shore and linked by pipeline or otherwise to such site.

      • 15 Director means the Director of the HNS Fund.

      • 16 Organization means the International Maritime Organization.

      • 17 Secretary-General means the Secretary-General of the Organization.

      Annexes
      Article 2

      The Annexes to this Convention shall constitute an integral part of this Convention.

      Scope of application
      Article 3

      This Convention shall apply exclusively:

      • (a) to any damage caused in the territory, including the territorial sea, of a State Party;

      • (b) to damage by contamination of the environment caused in the exclusive economic zone of a State Party, established in accordance with international law, or, if a State Party has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

      • (c) to damage, other than damage by contamination of the environment, caused outside the territory, including the territorial sea, of any State, if this damage has been caused by a substance carried on board a ship registered in a State Party or, in the case of an unregistered ship, on board a ship entitled to fly the flag of a State Party; and

      • (d) to preventive measures, wherever taken, to prevent or minimize such damage as referred to in (a), (b) and (c) above.

      Article 4

      • 1 This Convention shall apply to claims, other than claims arising out of any contract for the carriage of goods and passengers, for damage arising from the carriage of hazardous and noxious substances by sea.

      • 2 This Convention shall not apply to the extent that its provisions are incompatible with those of the applicable law relating to workers’ compensation or social security schemes.

      • 3 This Convention shall not apply:

        • (a) to pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended, whether or not compensation is payable in respect of it under that Convention; and

        • (b) to damage caused by a radioactive material of class 7 either in the International Maritime Dangerous Goods Code, as amended, or in the International Maritime Solid Bulk Cargoes Code, as amended.

      • 4 Except as provided in paragraph 5, the provisions of this Convention shall not apply to warships, naval auxiliary or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service.

      • 5 A State Party may decide to apply this Convention to its warships or other vessels described in paragraph 4, in which case it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

      • 6 With respect to ships owned by a State Party and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in article 38 and shall waive all defences based on its status as a sovereign State.

      Article 5

      • 1 A State may, at the time of ratification, acceptance, approval of, or accession to, this Convention, or any time thereafter, declare that this Convention does not apply to ships:

        • (a) which do not exceed 200 gross tonnage; and

        • (b) which carry hazardous and noxious substances only in packaged form; and

        • (c) while they are engaged on voyages between ports or facilities of that State.

      • 2 Where two neighbouring States agree that this Convention does not apply also to ships which are covered by paragraph 1(a) and (b) while engaged on voyages between ports or facilities of those States, the States concerned may declare that the exclusion from the application of this Convention declared under paragraph 1 covers also ships referred to in this paragraph.

      • 3 Any State which has made the declaration under paragraph 1 or 2 may withdraw such declaration at any time.

      • 4 A declaration made under paragraph 1 or 2, and the withdrawal of the declaration made under paragraph 3, shall be deposited with the Secretary-General who shall, after the entry into force of this Convention, communicate it to the Director.

      • 5 The HNS Fund is not liable to pay compensation for damage caused by substances carried by a ship to which the Convention does not apply pursuant to a declaration made under paragraph 1 or 2, to the extent that:

        • (a) the damage as defined in article 1, paragraph 6(a), (b) or (c) was caused in:

          • (i) the territory, including the territorial sea, of the State which has made the declaration, or in the case of neighbouring States which have made a declaration under paragraph 2, of either of them; or

          • (ii) the exclusive economic zone, or area mentioned in article 3(b), of the State or States referred to in (i);

        • (b) the damage includes measures taken to prevent or minimize such damage.

      Chapter II
      Liability

      Liability of the owner
      Article 7

      • 1 Except as provided in paragraphs 2 and 3, the owner at the time of an incident shall be liable for damage caused by any hazardous and noxious substances in connection with their carriage by sea on board the ship, provided that if an incident consists of a series of occurrences having the same origin the liability shall attach to the owner at the time of the first of such occurrences.

      • 2 No liability shall attach to the owner if the owner proves that:

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

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

        • (c) the damage was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function; or

        • (d) the failure of the shipper or any other person to furnish information concerning the hazardous and noxious nature of the substances shipped either:

          • (i) has caused the damage, wholly or partly; or

          • (ii) has led the owner not to obtain insurance in accordance with article 12;

          provided that neither the owner nor its servants or agents knew or ought reasonably to have known of the hazardous and noxious nature of the substances shipped.

      • 3 If the owner proves that the damage resulted wholly or partly either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from liability to such person.

      • 4 No claim for compensation for damage shall be made against the owner otherwise than in accordance with this Convention.

      • 5 Subject to paragraph 6, no claim for compensation for damage under this Convention or otherwise may be made against:

        • (a) the servants or agents of the owner or the members of the crew;

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

        • (c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;

        • (d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

        • (e) any person taking preventive measures; and

        • (f) the servants or agents of persons mentioned in (c), (d) and (e);

        unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

      • 6 Nothing in this Convention shall prejudice any existing right of recourse of the owner against any third party, including, but not limited to, the shipper or the receiver of the substance causing the damage, or the persons indicated in paragraph 5.

      Incidents involving two or more ships
      Article 8

      • 1 Whenever damage has resulted from an incident involving two or more ships each of which is carrying hazardous and noxious substances, each owner, unless exonerated under article 7, shall be liable for the damage. The owners shall be jointly and severally liable for all such damage which is not reasonably separable.

      • 2 However, owners shall be entitled to the limits of liability applicable to each of them under article 9.

      • 3 Nothing in this article shall prejudice any right of recourse of an owner against any other owner.

      Limitation of liability
      Article 9

      • 1 The owner of a ship shall be entitled to limit liability under this Convention in respect of any one incident to an aggregate amount calculated as follows:

        • (a) Where the damage has been caused by bulk HNS:

          • (i) 10 million units of account for a ship not exceeding 2,000 units of tonnage; and

          • (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

            for each unit of tonnage from 2,001 to 50,000 units of tonnage, 1,500 units of account;

            for each unit of tonnage in excess of 50,000 units of tonnage, 360 units of account;

            provided, however, that this aggregate amount shall not in any event exceed 100 million units of account.

        • (b) Where the damage has been caused by packaged HNS, or where the damage has been caused by both bulk HNS and packaged HNS, or where it is not possible to determine whether the damage originating from that ship has been caused by bulk HNS or by packaged HNS:

          • (i) 11.5 million units of account for a ship not exceeding 2,000 units of tonnage; and

          • (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

            for each unit of tonnage from 2,001 to 50,000 units of tonnage, 1,725 units of account;

            for each unit of tonnage in excess of 50,000 units of tonnage, 414 units of account;

            provided, however, that this aggregate amount shall not in any event exceed 115 million units of account.

      • 2 The owner shall not be entitled to limit liability under this Convention if it is proved that the damage resulted from the personal act or omission of the owner, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

      • 3 The owner shall, for the purpose of benefitting from the limitation provided for in paragraph 1, constitute a fund for the total sum representing the limit of liability established in accordance with paragraph 1 with the court or other competent authority of any one of the States Parties in which action is brought under article 38 or, if no action is brought, with any court or other competent authority in any one of the States Parties in which an action can be brought under article 38. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the law of the State Party where the fund is constituted, and considered to be adequate by the court or other competent authority.

      • 4 Subject to the provisions of article 11, the fund shall be distributed among the claimants in proportion to the amounts of their established claims.

      • 5 If before the fund is distributed the owner or any of the servants or agents of the owner or any person providing to the owner insurance or other financial security has as a result of the incident in question, paid compensation for damage, such person shall, up to the amount that person has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

      • 6 The right of subrogation provided for in paragraph 5 may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for damage which such person may have paid but only to the extent that such subrogation is permitted under the applicable national law.

      • 7 Where owners or other persons establish that they may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which the right of subrogation would have been enjoyed under paragraphs 5 or 6 had the compensation been paid before the fund was distributed, the court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce the claim against the fund.

      • 8 Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize damage shall rank equally with other claims against the fund.

      • 9 

        • (a) The amounts mentioned in paragraph 1 shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the constitution of the fund referred to in paragraph 3. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.

        • (b) Nevertheless, a State Party which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9(a) may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 9(a) shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five-and-a-half milligrammes of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.

        • (c) The calculation mentioned in the last sentence of paragraph 9(a) and the conversion mentioned in paragraph 9(b) shall be made in such manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in paragraph 1 as would result from the application of the first two sentences of paragraph 9(a). States Parties shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 9(a), or the result of the conversion in paragraph 9(b) as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

      • 10 For the purpose of this article the ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.

      • 11 The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this article on the same conditions and having the same effect as if it were constituted by the owner. Such a fund may be constituted even if, under the provisions of paragraph 2, the owner is not entitled to limitation of liability, but its constitution shall in that case not prejudice the rights of any claimant against the owner.

      Article 10

      • 1 Where the owner, after an incident, has constituted a fund in accordance with article 9 and is entitled to limit liability:

        • (a) no person having a claim for damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim; and

        • (b) the court or other competent authority of any State Party shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest.

      • 2 The foregoing shall, however, only apply if the claimant has access to the court administering the fund and the fund is actually available in respect of the claim.

      Death and injury
      Article 11

      Claims in respect of death or personal injury have priority over other claims save to the extent that the aggregate of such claims exceeds two-thirds of the total amount established in accordance with article 9, paragraph 1.

      Compulsory insurance of the owner
      Article 12

      • 1 The owner of a ship registered in a State Party and actually carrying hazardous and noxious substances shall be required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, in the sums fixed by applying the limits of liability prescribed in article 9, paragraph 1, to cover liability for damage under this Convention.

      • 2 A compulsory insurance certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party such compulsory insurance certificate shall be issued or certified by the appropriate authority of the State of the ship’s registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of any State Party. This compulsory insurance certificate shall be in the form of the model set out in Annex I and shall contain the following particulars:

        • (a) name of the ship, distinctive number or letters and port of registry;

        • (b) name and principal place of business of the owner;

        • (c) IMO ship identification number;

        • (d) type and duration of security;

        • (e) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established; and

        • (f) period of validity of certificate, which shall not be longer than the period of validity of the insurance or other security.

      • 3 The compulsory insurance certificate shall be in the official language or languages of the issuing State. If the language used is neither English, nor French nor Spanish, the text shall include a translation into one of these languages.

      • 4 The compulsory insurance certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship’s registry or, if the ship is not registered in a State Party, with the authority of the State issuing or certifying the certificate.

      • 5 An insurance or other financial security shall not satisfy the requirements of this article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 4, unless the compulsory insurance certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this article.

      • 6 The State of the ship’s registry shall, subject to the provisions of this article, determine the conditions of issue and validity of the compulsory insurance certificate.

      • 7 Compulsory insurance certificates issued or certified under the authority of a State Party in accordance with paragraph 2 shall be accepted by other States Parties for the purposes of this Convention and shall be regarded by other States Parties as having the same force as compulsory insurance certificates issued or certified by them even if issued or certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the compulsory insurance certificate is not financially capable of meeting the obligations imposed by this Convention.

      • 8 Any claim for compensation for damage may be brought directly against the insurer or other person providing financial security for the owner’s liability for damage. In such case the defendant may, even if the owner is not entitled to limitation of liability, benefit from the limit of liability prescribed in accordance with paragraph 1. The defendant may further invoke the defences (other than the bankruptcy or winding up of the owner) which the owner would have been entitled to invoke. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the owner, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the owner against the defendant. The defendant shall in any event have the right to require the owner to be joined in the proceedings.

      • 9 Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 shall be available exclusively for the satisfaction of claims under this Convention.

      • 10 A State Party shall not permit a ship under its flag to which this article applies to trade unless a certificate has been issued under paragraph 2 or 12.

      • 11 Subject to the provisions of this article, each State Party shall ensure, under its national law, that insurance or other security in the sums specified in paragraph 1 is in force in respect of any ship, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an offshore facility in its territorial sea.

      • 12 If insurance or other financial security is not maintained in respect of a ship owned by a State Party, the provisions of this article relating thereto shall not be applicable to such ship, but the ship shall carry a compulsory insurance certificate issued by the appropriate authorities of the State of the ship’s registry stating that the ship is owned by that State and that the ship’s liability is covered within the limit prescribed in accordance with paragraph 1. Such a compulsory insurance certificate shall follow as closely as possible the model prescribed by paragraph 2.

      Chapter III
      Compensation by the International Hazardous and Noxious Substances Fund (HNS Fund)

      Establishment of the HNS Fund
      Article 13

      • 1 The International Hazardous and Noxious Substances Fund (HNS Fund) is hereby established with the following aims:

        • (a) to provide compensation for damage in connection with the carriage of hazardous and noxious substances by sea, to the extent that the protection afforded by chapter II is inadequate or not available; and

        • (b) to give effect to the related tasks set out in article 15.

      • 2 The HNS Fund shall in each State Party be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each State Party shall recognize the Director as the legal representative of the HNS Fund.

      Compensation
      Article 14

      • 1 For the purpose of fulfilling its function under article 13, paragraph 1(a), the HNS Fund shall pay compensation to any person suffering damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of chapter II:

        • (a) because no liability for the damage arises under chapter II;

        • (b) because the owner liable for the damage under chapter II is financially incapable of meeting the obligations under this Convention in full and any financial security that may be provided under chapter II does not cover or is insufficient to satisfy the claims for compensation for damage; an owner being treated as financially incapable of meeting these obligations and a financial security being treated as insufficient if the person suffering the damage has been unable to obtain full satisfaction of the amount of compensation due under chapter II after having taken all reasonable steps to pursue the available legal remedies;

        • (c) because the damage exceeds the owner’s liability under the terms of chapter II.

      • 2 Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize damage shall be treated as damage for the purposes of this article.

      • 3 The HNS Fund shall incur no obligation under the preceding paragraphs if:

        • (a) it proves that the damage resulted from an act of war, hostilities, civil war or insurrection or was caused by hazardous and noxious substances which had escaped or been discharged from a warship or other ship owned or operated by a State and used, at the time of the incident, only on Government non-commercial service; or

        • (b) the claimant cannot prove that there is a reasonable probability that the damage resulted from an incident involving one or more ships.

      • 4 If the HNS Fund proves that the damage resulted wholly or partly either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the HNS Fund may be exonerated wholly or partially from its obligation to pay compensation to such person. The HNS Fund shall in any event be exonerated to the extent that the owner may have been exonerated under article 7, paragraph 3. However, there shall be no such exoneration of the HNS Fund with regard to preventive measures.

      • 5 

        • (a) Except as otherwise provided in subparagraph (b), the aggregate amount of compensation payable by the HNS Fund under this article shall in respect of any one incident be limited, so that the total sum of that amount and any amount of compensation actually paid under chapter II for damage within the scope of application of this Convention as defined in article 3 shall not exceed 250 million units of account.

        • (b) The aggregate amount of compensation payable by the HNS Fund under this article for damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 250 million units of account.

        • (c) Interest accrued on a fund constituted in accordance with article 9, paragraph 3, if any, shall not be taken into account for the computation of the maximum compensation payable by the HNS Fund under this article.

        • (d) The amounts mentioned in this article shall be converted into national currency on the basis of the value of that currency with reference to the Special Drawing Right on the date of the decision of the Assembly of the HNS Fund as to the first date of payment of compensation.

      • 6 Where the amount of established claims against the HNS Fund exceeds the aggregate amount of compensation payable under paragraph 5, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Convention shall be the same for all claimants. Claims in respect of death or personal injury shall have priority over other claims, however, save to the extent that the aggregate of such claims exceeds two-thirds of the total amount established in accordance with paragraph 5.

      • 7 The Assembly of the HNS Fund may decide that, in exceptional cases, compensation in accordance with this Convention can be paid even if the owner has not constituted a fund in accordance with chapter II. In such cases paragraph 5(d) applies accordingly.

      Related tasks of the HNS Fund
      Article 15

      For the purpose of fulfilling its function under article 13, paragraph 1(a), the HNS Fund shall have the following tasks

      • (a) to consider claims made against the HNS Fund;

      • (b) to prepare an estimate in the form of a budget for each calendar year of:

        Expenditure:

        • (i) costs and expenses of the administration of the HNS Fund in the relevant year and any deficit from operations in the preceding years; and

        • (ii) payments to be made by the HNS Fund in the relevant year;

        Income:

        • (iii) surplus funds from operations in preceding years, including any interest;

        • (iv) initial contributions to be paid in the course of the year;

        • (v) annual contributions if required to balance the budget; and

        • (vi) any other income;

      • (c) to use at the request of a State Party its good offices as necessary to assist that State to secure promptly such personnel, material and services as are necessary to enable the State to take measures to prevent or mitigate damage arising from an incident in respect of which the HNS Fund may be called upon to pay compensation under this Convention; and

      • (d) to provide, on conditions laid down in the internal regulations, credit facilities with a view to the taking of preventive measures against damage arising from a particular incident in respect of which the HNS Fund may be called upon to pay compensation under this Convention.

      General provisions on contributions
      Article 16

      • 1 The HNS Fund shall have a general account, which shall be divided into sectors.

      • 2 The HNS Fund shall, subject to article 19, paragraphs 3 and 4, also have separate accounts in respect of:

        • (a) oil as defined in article 1, paragraph 5(a)(i) (oil account);

        • (b) liquefied natural gases of light hydrocarbons with methane as the main constituent (LNG) (LNG account); and

        • (c) liquefied petroleum gases of light hydrocarbons with propane and butane as the main constituents (LPG) (LPG account).

      • 3 There shall be initial contributions and, as required, annual contributions to the HNS Fund.

      • 4 Contributions to the HNS Fund shall be made into the general account in accordance with article 18, to separate accounts in accordance with article 19 and to either the general account or separate accounts in accordance with article 20 or article 21, paragraph 5. Subject to article 19, paragraph 6, the general account shall be available to compensate damage caused by hazardous and noxious substances covered by that account, and a separate account shall be available to compensate damage caused by a hazardous and noxious substance covered by that account.

      • 5 For the purposes of article 18, article 19, paragraph 1(a)(i), paragraph 1(a)(ii) and paragraph 1(b), article 20 and article 21, paragraph 5, where the quantity of a given type of contributing cargo received in the territory of a State Party by any person in a calendar year when aggregated with the quantities of the same type of cargo received in the same State Party in that year by any associated person or persons exceeds the limit specified in the respective subparagraphs, such a person shall pay contributions in respect of the actual quantity received by that person notwithstanding that that quantity did not exceed the respective limit.

      • 6 Associated person means any subsidiary or commonly controlled entity. The question whether a person comes within this definition shall be determined by the national law of the State concerned.

      General provisions on annual contributions
      Article 17

      • 1 Annual contributions to the general account and to each separate account shall be levied only as required to make payments by the account in question.

      • 2 Annual contributions payable pursuant to articles 18, 19 and article 21, paragraph 5, shall be determined by the Assembly and shall be calculated in accordance with those articles on the basis of the units of contributing cargo received during the preceding calendar year or such other year as the Assembly may decide.

      • 3 The Assembly shall decide the total amount of annual contributions to be levied to the general account and to each separate account. Following that decision the Director shall, in respect of each State Party, calculate for each person liable to pay contributions in accordance with article 18, article 19, paragraph 1 and paragraph 1bis, and article 21, paragraph 5, the amount of that person’s annual contribution to each account, on the basis of a fixed sum for each unit of contributing cargo reported in respect of the person during the preceding calendar year or such other year as the Assembly may decide. For the general account, the above-mentioned fixed sum per unit of contributing cargo for each sector shall be calculated pursuant to the regulations contained in Annex II to this Convention. For each separate account, the fixed sum per unit of contributing cargo referred to above shall be calculated by dividing the total annual contribution to be levied to that account by the total quantity of cargo contributing to that account.

      • 4 The Assembly may also levy annual contributions for administrative costs and decide on the distribution of such costs between the sectors of the general account and the separate accounts.

      • 5 The Assembly shall also decide on the distribution between the relevant accounts and sectors of amounts paid in compensation for damage caused by two or more substances which fall within different accounts or sectors, on the basis of an estimate of the extent to which each of the substances involved contributed to the damage.

      Annual contributions to the general account
      Article 18

      • 1 Subject to article 16, paragraph 5, annual contributions to the general account shall be made in respect of each State Party by any person who was the receiver in that State in the preceding calendar year, or such other year as the Assembly may decide, of aggregate quantities exceeding 20,000 tonnes of contributing cargo, other than substances referred to in article 19, paragraph 1 and paragraph 1bis, which fall within the following sectors:

        • (a) solid bulk materials referred to in article 1, paragraph 5(a)(vii);

        • (b) substances referred to in paragraph 2; and

        • (c) other substances.

      • 2 Annual contributions shall also be payable to the general account by persons who would have been liable to pay contributions to a separate account in accordance with article 19, paragraph 1 and paragraph 1bis, had its operation not been postponed or suspended in accordance with article 19. Each separate account the operation of which has been postponed or suspended under article 19 shall form a separate sector within the general account.

      Annual contributions to separate accounts
      Article 19

      • 1 Subject to article 16, paragraph 5, annual contributions to separate accounts shall be made in respect of each State Party:

        • (a) in the case of the oil account,

          • (i) by any person who has received in that State in the preceding calendar year, or such other year as the Assembly may decide, total quantities exceeding 150,000 tonnes of contributing oil as defined in article 1, paragraph 3 of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, as amended, and who is or would be liable to pay contributions to the International Oil Pollution Compensation Fund in accordance with article 10 of that Convention; and

          • (ii) by any person who was the receiver in that State in the preceding calendar year, or such other year as the Assembly may decide, of total quantities exceeding 20,000 tonnes of other oils carried in bulk listed in appendix I of Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended;

        • (b) in the case of the LPG account, by any person who in the preceding calendar year, or such other year as the Assembly may decide, was the receiver in that State of total quantities exceeding 20,000 tonnes of LPG.

        • 1bis(a) In the case of the LNG account, subject to article 16, paragraph 5, annual contributions to the LNG account shall be made in respect of each State Party by any person who in the preceding calendar year, or such other year as the Assembly may decide, was the receiver in that State of any quantity of LNG.

        • (b) However, any contributions shall be made by the person who, immediately prior to its discharge, held title to an LNG cargo discharged in a port or terminal of that State (the titleholder) where:

          • (i) the titleholder has entered into an agreement with the receiver that the titleholder shall make such contributions; and

          • (ii) the receiver has informed the State Party that such an agreement exists.

        • (c) If the titleholder referred to in subparagraph (b) above does not make the contributions or any part thereof, the receiver shall make the remaining contributions. The Assembly shall determine in the internal regulations the circumstances under which the titleholder shall be considered as not having made the contributions and the arrangements in accordance with which the receiver shall make any remaining contributions.

        • (d) Nothing in this paragraph shall prejudice any rights of recourse or reimbursement of the receiver that may arise between the receiver and the titleholder under the applicable law.

      • 2 Subject to paragraph 3, the separate accounts referred to in paragraph 1 and paragraph 1bis above shall become effective at the same time as the general account.

      • 3 The initial operation of a separate account referred to in article 16, paragraph 2 shall be postponed until such time as the quantities of contributing cargo in respect of that account during the preceding calendar year, or such other year as the Assembly may decide, exceed the following levels:

        • (a) 350 million tonnes of contributing cargo in respect of the oil account;

        • (b) 20 million tonnes of contributing cargo in respect of the LNG account; and

        • (c) 15 million tonnes of contributing cargo in respect of the LPG account.

      • 4 The Assembly may suspend the operation of a separate account if:

        • (a) the quantities of contributing cargo in respect of that account during the preceding calendar year fall below the respective level specified in paragraph 3; or

        • (b) when six months have elapsed from the date when the contributions were due, the total unpaid contributions to that account exceed ten per cent of the most recent levy to that account in accordance with paragraph 1.

      • 5 The Assembly may reinstate the operation of a separate account which has been suspended in accordance with paragraph 4.

      • 6 Any person who would be liable to pay contributions to a separate account the operation of which has been postponed in accordance with paragraph 3 or suspended in accordance with paragraph 4, shall pay into the general account the contributions due by that person in respect of that separate account. For the purpose of calculating future contributions, the postponed or suspended separate account shall form a new sector in the general account and shall be subject to the HNS points system defined in Annex II.

      Initial contributions
      Article 20

      • 1 In respect of each State Party, initial contributions shall be made of an amount which shall, for each person liable to pay contributions in accordance with article 16, paragraph 5, articles 18, 19 and article 21, paragraph 5, be calculated on the basis of a fixed sum, equal for the general account and each separate account, for each unit of contributing cargo received in that State during the calendar year preceding that in which this Convention enters into force for that State.

      • 2 The fixed sum and the units for the different sectors within the general account as well as for each separate account referred to in paragraph 1 shall be determined by the Assembly.

      • 3 Initial contributions shall be paid within three months following the date on which the HNS Fund issues invoices in respect of each State Party to persons liable to pay contributions in accordance with paragraph 1.

      Reports
      Article 21

      • 1 Each State Party shall ensure that any person liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article appears on a list to be established and kept up to date by the Director in accordance with the provisions of this article.

      • 2 For the purposes set out in paragraph 1, each State Party shall communicate to the Director, at a time and in the manner to be prescribed in the internal regulations of the HNS Fund, the name and address of any person who in respect of the State is liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article, as well as data on the relevant quantities of contributing cargo for which such a person is liable to contribute in respect of the preceding calendar year.

      • 3 For the purposes of ascertaining who are, at any given time, the persons liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article and of establishing, where applicable, the quantities of cargo to be taken into account for any such person when determining the amount of the contribution, the list shall be prima facie evidence of the facts stated therein.

      • 4 If in a State Party there is no person liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article, that State Party shall, for the purposes of this Convention, inform the Director of the HNS Fund thereof.

      • 5 In respect of contributing cargo carried from one port or terminal of a State Party to another port or terminal located in the same State and discharged there, States Parties shall have the option of submitting to the HNS Fund a report with an annual aggregate quantity for each account covering all receipts of contributing cargo, including any quantities in respect of which contributions are payable pursuant to article 16, paragraph 5. The State Party shall, at the time of reporting, either:

        • (a) notify the HNS Fund that that State will pay the aggregate amount for each account in respect of the relevant year in one lump sum to the HNS Fund; or

        • (b) instruct the HNS Fund to levy the aggregate amount for each account by invoicing individual receivers, or, in the case of LNG, the titleholder if article 19, paragraph 1bis(b) is applicable, for the amount payable by each of them. If the titleholder does not make the contributions or any part thereof, the HNS Fund shall levy the remaining contributions by invoicing the receiver of the LNG cargo. These persons shall be identified in accordance with the national law of the State concerned.

      Non-reporting
      Article 21bis

      • 1 Where a State Party does not fulfil its obligations under article 21, paragraph 2, and this results in a financial loss for the HNS Fund, that State Party shall be liable to compensate the HNS Fund for such loss. The Assembly shall, upon recommendation of the Director, decide whether such compensation shall be payable by a State.

      • 2 No compensation for any incident shall be paid by the HNS Fund for damage in the territory, including the territorial sea of a State Party in accordance with article 3(a), the exclusive economic zone or other area of a State Party in accordance with article 3(b), or damage in accordance with article 3(c) in respect of a given incident or for preventive measures, wherever taken, in accordance with article 3(d), until the obligations under article 21, paragraphs 2 and 4, have been complied with in respect of that State Party for all years prior to the occurrence of an incident for which compensation is sought. The Assembly shall determine in the internal regulations of the HNS Fund the circumstances under which a State Party shall be considered as not having fulfilled these obligations.

      • 3 Where compensation has been denied temporarily in accordance with paragraph 2, compensation shall be denied permanently if the obligations under article 21, paragraphs 2 and 4, have not been fulfilled within one year after the Director has notified the State Party of its failure to fulfil these obligations.

      • 4 Any payments of contributions due to the HNS Fund shall be set off against compensation due to the debtor, or the debtor’s agents.

      • 5 Paragraphs 2 to 4 shall not apply to claims in respect of death or personal injury.

      Non-payment of contributions
      Article 22

      • 1 The amount of any contribution due under articles 18, 19, 20 or article 21, paragraph 5 and which is in arrears shall bear interest at a rate which shall be determined in accordance with the internal regulations of the HNS Fund, provided that different rates may be fixed for different circumstances.

      • 2 Where a person who is liable to pay contributions in accordance with articles 18, 19, 20 or article 21, paragraph 5, does not fulfil the obligations in respect of any such contribution or any part thereof and is in arrears, the Director shall take all appropriate action, including court action, against such a person on behalf of the HNS Fund with a view to the recovery of the amount due. However, where the defaulting contributor is manifestly insolvent or the circumstances otherwise so warrant, the Assembly may, upon recommendation of the Director, decide that no action shall be taken or continued against the contributor.

      Optional liability of states parties for the payment of contributions
      Article 23

      • 1 Without prejudice to article 21, paragraph 5, a State Party may, at the time when it signs without reservation as to ratification, acceptance or approval, or deposits its instrument of ratification, acceptance, approval or accession or at any time thereafter, declare that it assumes responsibility for obligations imposed by this Convention on any person liable to pay contributions in accordance with articles 18, 19, 20 or article 21, paragraph 5, in respect of hazardous and noxious substances received in the territory of that State. Such a declaration shall be made in writing and shall specify which obligations are assumed.

      • 2 Where a declaration under paragraph 1 is made prior to the entry into force of this Convention in accordance with article 46, it shall be deposited with the Secretary-General who shall after the entry into force of this Convention communicate the declaration to the Director.

      • 3 A declaration under paragraph 1 which is made after the entry into force of this Convention shall be deposited with the Director.

      • 4 A declaration made in accordance with this article may be withdrawn by the relevant State giving notice thereof in writing to the Director. Such a notification shall take effect three months after the Director’s receipt thereof.

      • 5 Any State which is bound by a declaration made under this article shall, in any proceedings brought against it before a competent court in respect of any obligation specified in the declaration, waive any immunity that it would otherwise be entitled to invoke.

      Chapter IV
      Claims and Actions

      Limitation of actions
      Article 37

      • 1 Rights to compensation under chapter II shall be extinguished unless an action is brought thereunder within three years from the date when the person suffering the damage knew or ought reasonably to have known of the damage and of the identity of the owner.

      • 2 Rights to compensation under chapter III shall be extinguished unless an action is brought thereunder or a notification has been made pursuant to article 39, paragraph 7, within three years from the date when the person suffering the damage knew or ought reasonably to have known of the damage.

      • 3 In no case, however, shall an action be brought later than ten years from the date of the incident which caused the damage.

      • 4 Where the incident consists of a series of occurrences, the ten-year period mentioned in paragraph 3 shall run from the date of the last of such occurrences.

      Jurisdiction in respect of action against the owner
      Article 38

      • 1 Where an incident has caused damage in the territory, including the territorial sea or in an area referred to in article 3(b), of one or more States Parties, or preventive measures have been taken to prevent or minimize damage in such territory including the territorial sea or in such area, actions for compensation may be brought against the owner or other person providing financial security for the owner’s liability only in the courts of any such States Parties.

      • 2 Where an incident has caused damage exclusively outside the territory, including the territorial sea, of any State and either the conditions for application of this Convention set out in article 3(c) have been fulfilled or preventive measures to prevent or minimize such damage have been taken, actions for compensation may be brought against the owner or other person providing financial security for the owner’s liability only in the courts of:

        • (a) the State Party where the ship is registered or, in the case of an unregistered ship, the State Party whose flag the ship is entitled to fly; or

        • (b) the State Party where the owner has habitual residence or where the principal place of business of the owner is established; or

        • (c) the State Party where a fund has been constituted in accordance with article 9, paragraph 3.

      • 3 Reasonable notice of any action taken under paragraph 1 or 2 shall be given to the defendant.

      • 4 Each State Party shall ensure that its courts have jurisdiction to entertain actions for compensation under this Convention.

      • 5 After a fund under article 9 has been constituted by the owner or by the insurer or other person providing financial security in accordance with article 12, the courts of the State in which such fund is constituted shall have exclusive jurisdiction to determine all matters relating to the apportionment and distribution of the fund.

      Jurisdiction in respect of action against the HNS Fund or taken by the HNS Fund
      Article 39

      • 1 Subject to the subsequent provisions of this article, any action against the HNS Fund for compensation under article 14 shall be brought only before a court having jurisdiction under article 38 in respect of actions against the owner who is liable for damage caused by the relevant incident or before a court in a State Party which would have been competent if an owner had been liable.

      • 2 In the event that the ship carrying the hazardous or noxious substances which caused the damage has not been identified, the provisions of article 38, paragraph 1, shall apply mutatis mutandis to actions against the HNS Fund.

      • 3 Each State Party shall ensure that its courts have jurisdiction to entertain such actions against the HNS Fund as are referred to in paragraph 1.

      • 4 Where an action for compensation for damage has been brought before a court against the owner or the owner’s guarantor, such court shall have exclusive jurisdiction over any action against the HNS Fund for compensation under the provisions of article 14 in respect of the same damage.

      • 5 Each State Party shall ensure that the HNS Fund shall have the right to intervene as a party to any legal proceedings instituted in accordance with this Convention before a competent court of that State against the owner or the owner’s guarantor.

      • 6 Except as otherwise provided in paragraph 7, the HNS Fund shall not be bound by any judgement or decision in proceedings to which it has not been a party or by any settlement to which it is not a party.

      • 7 Without prejudice to the provisions of paragraph 5, where an action under this Convention for compensation for damage has been brought against an owner or the owner’s guarantor before a competent court in a State Party, each party to the proceedings shall be entitled under the national law of that State to notify the HNS Fund of the proceedings. Where such notification has been made in accordance with the formalities required by the law of the court seized and in such time and in such a manner that the HNS Fund has in fact been in a position effectively to intervene as a party to the proceedings, any judgement rendered by the court in such proceedings shall, after it has become final and enforceable in the State where the judgement was given, become binding upon the HNS Fund in the sense that the facts and findings in that judgement may not be disputed by the HNS Fund even if the HNS Fund has not actually intervened in the proceedings.

      Recognition and enforcement
      Article 40

      • 1 Any judgement given by a court with jurisdiction in accordance with article 38, which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognized in any State Party, except:

        • (a) where the judgement was obtained by fraud; or

        • (b) where the defendant was not given reasonable notice and a fair opportunity to present the case.

      • 2 A judgement recognized under paragraph 1 shall be enforceable in each State Party as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.

      • 3 Subject to any decision concerning the distribution referred to in article 14, paragraph 6, any judgement given against the HNS Fund by a court having jurisdiction in accordance with article 39, paragraphs 1 and 3 shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each State Party.

      Subrogation and recourse
      Article 41

      • 1 The HNS Fund shall, in respect of any amount of compensation for damage paid by the HNS Fund in accordance with article 14, paragraph 1, acquire by subrogation the rights that the person so compensated may enjoy against the owner or the owner’s guarantor.

      • 2 Nothing in this Convention shall prejudice any rights of recourse or subrogation of the HNS Fund against any person, including persons referred to in article 7, paragraph 2(d), other than those referred to in the previous paragraph, in so far as they can limit their liability. In any event the right of the HNS Fund to subrogation against such persons shall not be less favourable than that of an insurer of the person to whom compensation has been paid.

      • 3 Without prejudice to any other rights of subrogation or recourse against the HNS Fund which may exist, a State Party or agency thereof which has paid compensation for damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

      Chapter VI
      Final Clauses

      Signature, ratification, acceptance, approval and accession
      Article 45

      • 1 This Protocol shall be open for signature at the Headquarters of the Organization from 1 November 2010 to 31 October 2011 and shall thereafter remain open for accession.

      • 2 Subject to the provisions in paragraphs 4 and 5, States may express their consent to be bound by this Protocol by:

        • (a) signature without reservation as to ratification, acceptance or approval; or

        • (b) signature subject to ratification, acceptance or approval followed by ratification, acceptance or approval; or

        • (c) accession.

      • 3 Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General.

      • 4 An expression of consent to be bound by this Protocol shall be accompanied by the submission to the Secretary-General of data on the total quantities of contributing cargo liable for contributions received in that State during the preceding calendar year in respect of the general account and each separate account.

      • 5 An expression of consent which is not accompanied by the data referred to in paragraph 4 shall not be accepted by the Secretary-General.

      • 6 Each State which has expressed its consent to be bound by this Protocol shall annually thereafter on or before 31 May until this Protocol enters into force for that State, submit to the Secretary-General data on the total quantities of contributing cargo liable for contributions received in that State during the preceding calendar year in respect of the general account and each separate account.

      • 7 A State which has expressed its consent to be bound by this Protocol and which has not submitted the data on contributing cargo required under paragraph 6 for any relevant years shall, before the entry into force of the Protocol for that State, be temporarily suspended from being a Contracting State until it has submitted the required data.

      • 8 A State which has expressed its consent to be bound by the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 shall be deemed to have withdrawn this consent on the date on which it has signed this Protocol or deposited an instrument of ratification, acceptance, approval or accession in accordance with paragraph 2.

      Amendment of limits
      Article 48

      • 1 Without prejudice to the provisions of article 47, the special procedure in this article shall apply solely for the purposes of amending the limits set out in article 9, paragraph 1, and article 14, paragraph 5, of the Convention, as amended by this Protocol.

      • 2 Upon the request of at least one half, but in no case less than six, of the States Parties, any proposal to amend the limits specified in article 9, paragraph 1, and article 14, paragraph 5, of the Convention, as amended by this Protocol, shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States.

      • 3 Any amendment proposed and circulated in accordance with paragraph 2 shall be submitted to the Legal Committee of the Organization (the Legal Committee) for consideration at a date at least six months after the date of its circulation.

      • 4 All Contracting States, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

      • 5 Amendments shall be adopted by a two-thirds majority of the Contracting States present and voting in the Legal Committee, expanded as provided in paragraph 4, on condition that at least one half of the Contracting States shall be present at the time of voting.

      • 6 When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents, in particular the amount of damage resulting therefrom, changes in the monetary values, and the effect of the proposed amendment on the cost of insurance. It shall also take into account the relationship between the limits established in article 9, paragraph 1, and those in article 14, paragraph 5, of the Convention, as amended by this Protocol.

      • 7 

        • (a) No amendment of the limits under this article may be considered less than five years from the date this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this article.

        • (b) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature.

        • (c) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Protocol multiplied by three.

      • 8 Any amendment adopted in accordance with paragraph 5 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period no less than one-fourth of the States which were Contracting States at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect.

      • 9 An amendment deemed to have been accepted in accordance with paragraph 8 shall enter into force eighteen months after its acceptance.

      • 10 All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with article 49, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

      • 11 When an amendment has been adopted but the eighteen-month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 8. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

      Winding up of the HNS Fund
      Article 52

      • 1 If this Protocol ceases to be in force, the HNS Fund shall nevertheless:

        • (a) meet its obligations in respect of any incident occurring before this Protocol ceased to be in force; and

        • (b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under (a), including expenses for the administration of the HNS Fund necessary for this purpose.

      • 2 The Assembly shall take all appropriate measures to complete the winding up of the HNS Fund including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the HNS Fund.

      • 3 For the purposes of this article the HNS Fund shall remain a legal person.

      ANNEX I
      Certificate of Insurance or Other Financial Security in Respect of Liability for Damage Caused by Hazardous and Noxious Substances (HNS)

      Issued in accordance with the provisions of Article 12 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010

      Name of ship

      Distinctive number or letters

      IMO ship identification number

      Port of registry

      Name and full address of the principal place of business of the owner

      This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article 12 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010.

      Type of security blank line

      Duration of security blank line

      Name and address of the insurer(s) and/or guarantor(s) blank line

      Name blank line

      Address blank line

      ...........................................................................................................................

      This certificate is valid until blank line

      Issued or certified by the Government of blank line

      ...........................................................................................................................

      (Full designation of the State)

      At .....................................   On ..........................................

          (Place)            (Date)

      ..........................................

      Signature and Title of issuing or certifying official

      Explanatory Notes:

      • 1 If desired, the designation of the State may include a reference to the competent public authority of the country where the certificate is issued.

      • 2 If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated.

      • 3 If security is furnished in several forms, these should be enumerated.

      • 4 The entry “Duration of the Security” must stipulate the date on which such security takes effect.

      • 5 The entry “Address” of the insurer(s) and/or guarantor(s) must indicate the principal place of business of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated.

      ANNEX II
      Regulations for the Calculation of Annual Contributions to the General Account

      Regulation 1

      • 1 The fixed sum referred to in article 17, paragraph 3 shall be determined for each sector in accordance with these regulations.

      • 2 When it is necessary to calculate contributions for more than one sector of the general account, a separate fixed sum per unit of contributing cargo shall be calculated for each of the following sectors as may be required:

        • (a) solid bulk materials referred to in article 1, paragraph 5(a)(vii);

        • (b) oil, if the operation of the oil account is postponed or suspended;

        • (c) LNG, if the operation of the LNG account is postponed or suspended;

        • (d) LPG, if the operation of the LPG account is postponed or suspended;

        • (e) other substances.

      Regulation 2

      • 1 For each sector, the fixed sum per unit of contributing cargo shall be the product of the levy per HNS point and the sector factor for that sector.

      • 2 The levy per HNS point shall be the total annual contributions to be levied to the general account divided by the total HNS points for all sectors.

      • 3 The total HNS points for each sector shall be the product of the total volume, measured in metric tonnes, of contributing cargo for that sector and the corresponding sector factor.

      • 4 A sector factor shall be calculated as the weighted arithmetic average of the claims/volume ratio for that sector for the relevant year and the previous nine years, according to this regulation.

      • 5 Except as provided in paragraph 6, the claims/volume ratio for each of these years shall be calculated as follows:

        • (a) established claims, measured in units of account converted from the claim currency using the rate applicable on the date of the incident in question, for damage caused by substances in respect of which contributions to the HNS Fund are due for the relevant year; divided by

        • (b) the volume of contributing cargo corresponding to the relevant year.

      • 6 In cases where the information required in paragraphs 5(a) and (b) is not available, the following values shall be used for the claims/volume ratio for each of the missing years:

        • (a) solid bulk  materials referred  to in article 1, paragraph 5(a)(vii)blank line0

        • (b) oil, if the operation of the oil account is postponedblank line0

        • (c) LNG, if the operation of the LNG account is postponedblank line0

        • (d) LPG, if the operation of the LPG account is postponedblank line0

        • (e) other substancesblank line0.0001

      • 7 The arithmetic average of the ten years shall be weighted on a decreasing linear scale, so that the ratio of the relevant year shall have a weight of 10, the year prior to the relevant year shall have a weight of 9, the next preceding year shall have a weight of 8, and so on, until the tenth year has a weight of 1.

      • 8 If the operation of a separate account has been suspended, the relevant sector factor shall be calculated in accordance with those provisions of this regulation which the Assembly shall consider appropriate.

      PART 2
      Text of declarations made under Article 5 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010.

      • 1 The Convention does not apply to ships that carry hazardous and noxious substances only in packaged form and that do not exceed 200 gross tonnage, while those ships are engaged on voyages between ports or facilities in Canada.

  • — 2018, c. 27, ss. 731(2) to (6)

      • 731 (2) The portion of subsection 114.1(1) of the Act before paragraph (a) is replaced by the following:

        • 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:

      • (3) Subsection 114.1(2) of the Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after paragraph (b):

        • (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.

      • (4) Subsection 114.1(4) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

      • (5) Section 114.1 of the Act is amended by adding the following after subsection (4):

        • 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.

        • 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).

      • (6) Subsection 114.2(1) of the Act is replaced by the following:

        • 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.

  • — 2018, c. 27, ss. 734(2) to (7)

      • 734 (2) Subsection 117.1(2) of the Act is replaced by the following:

        • 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).

        • Definition of person

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

      • (3) Subsection 117.1(3) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

      • (4) Paragraph 117.1(4)(a) of the Act is replaced by the following:

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

      • (5) Subsection 117.1(4) of the Act is amended by adding the following after paragraph (b):

        • (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.

      • (6) Paragraphs 117.3(1)(b) and (c) of the Act are replaced by the following:

        • (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.

      • (7) Paragraphs 117.3(4)(a) and (b) of the Act are replaced by the following:

        • (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

  • — 2018, c. 27, s. 735(2)

      • 735 (2) The portion of subsection 118(1) of the Act before paragraph (a) is replaced by the following:

        • 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

  • — 2018, c. 27, ss. 743(2), (3)

      • 743 (2) Paragraphs 125(b) and (c) of the Act are replaced by the following:

        • (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);

      • (3) Section 125 of the Act is amended by striking out “and” at the end of paragraph (c.2) and by adding the following after that paragraph:

        • (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

  • — 2018, c. 27, s. 744(2)

      • 744 (2) Paragraph 130.01(1)(a) of the Act is replaced by the following:

        • (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);

  • — 2018, c. 27, ss. 745(2), (3)

      • 745 (2) Subsection 132(1) of the Act is replaced by the following:

        • 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.

      • (3) Subsections 132(6) and (7) of the Act are replaced by the following:

        • 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.

        • 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.

  • — 2018, c. 27, ss. 746(1) to (3), (7) to (11), (17)

    • 2014, c. 29
      • 746 (1) In this section, other Act means the Safeguarding Canada’s Seas and Skies Act.

      • (2) On the first day on which both section 33 of the other Act and section 713 of this Act are in force,

        • (a) section 74.24 of the Marine Liability Act is renumbered as subsection 74.24(1) and is amended by adding the following:

          • 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 any occurrence, or series of occurrences having the same origin, that causes pollution damage or creates a grave and imminent threat of causing such damage.

        • (b) subsection 111(2) of the Marine Liability Act is replaced by the following:

          • Rights unaffected

            (2) Nothing in subsection (1) affects the rights of the Minister of Fisheries and Oceans under sections 51, 71, 74.24, 77 and 101, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention with respect to loss and damage suffered, and costs and expenses incurred, in respect of the significant incident.

      • (3) On the first day on which both subsection 41(1) of the other Act and section 721 of this Act are in force,

        • (a) the portion of subsection 101(1) of the Marine Liability Act before paragraph (a) is replaced by the following:

          • 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 any kind of loss, damage, costs or expenses — including liability for economic loss caused by oil pollution suffered by persons whose property has not been polluted, but not including liability for loss in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — for the matters referred to in sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention, if

        • (b) subsection 101(1.1) of the Marine Liability Act is replaced by the following:

          • 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, if, 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, neither the owner of a ship, the International Fund, the Supplementary Fund nor the HNS Fund is liable for those costs and expenses.

      • (7) On the first day on which both subsection 43(1) of the other Act and subsection 723(1) of this Act are in force, subsection 103(1) of the Marine Liability Act is replaced by the following:

        • 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 sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances 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 but not including loss in respect of damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention.

      • (8) On the first day on which both subsection 43(2) of the other Act and subsection 723(3) of this Act are in force,

        • (a) subsection 103(3) of the Marine Liability Act is replaced by the following:

          • Exception

            (3) Subsections (1) and (1.1) do not apply to a response organization referred to in paragraph 51(1)(a), 71(1)(a), 74.24(1)(a) or 77(1)(b) or to a person in a state other than Canada.

        • (b) subsection 106.1(6) of the Marine Liability Act is replaced by the following:

          • Exception

            (6) Subsection (1) does not apply to a response organization referred to in paragraph 51(1)(a), 71(1)(a), 74.24(1)(a) or 77(1)(b) or to a person in a state other than Canada.

      • (9) On the first day on which both section 31 of the other Act and section 725 of this Act are in force, paragraph 106.1(1)(b) of the Marine Liability Act is replaced by the following:

        • (b) the claim is the first one that the claimant has filed — other than one in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — 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

      • (10) On the first day on which both subsection 45(1) of the other Act and section 725 of this Act are in force, paragraph 106.3(5)(a) of the Marine Liability Act is replaced by the following:

        • (a) the claimant is precluded from pursuing any rights — except for economic loss referred to in subsection 103(1) — that they may have had, except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, against the Ship-source Oil Pollution Fund or any person in respect of matters referred to in sections 51, 71, 74.24 and 77, subsections 101(1.1) and 103(1.1), Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention in relation to the occurrence to which the payment relates;

      • (11) On the first day on which both subsection 45(2) of the other Act and section 725 of this Act are in force,

        • (a) paragraph 106.3(5)(b) of the Marine Liability Act is replaced by the following:

          • (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, the HNS Fund or any other person liable.

        • (b) subsection 106.3(6) of the Marine Liability Act is replaced by the following:

          • 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 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 or the Hazardous and Noxious Substances Convention and may enforce any security provided to or enforceable by the claimant.

      • (17) On the first day on which both section 53 of the other Act and subsection 745(1) of this Act are in force, section 131 of the Marine Liability Act is replaced by the following:

        • Contraventions

          131 Every person or ship that contravenes subsection 55(1) or (2), 73(1) or (2), 74.28(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.

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