Marine Liability Act (S.C. 2001, c. 6)
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Act current to 2024-11-26 and last amended on 2023-06-22. Previous Versions
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, 2010Chapter I
General ProvisionsDefinitions
Article 1For 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 2The Annexes to this Convention shall constitute an integral part of this Convention.
Scope of application
Article 3This 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
LiabilityLiability of the owner
Article 71 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 81 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 91 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 11Claims 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 121 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 131 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 141 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 15For 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 161 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 171 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 181 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 191 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 201 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 211 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 21bis1 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 221 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 231 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 ActionsLimitation of actions
Article 371 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 381 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 391 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 401 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 411 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 ClausesSignature, ratification, acceptance, approval and accession
Article 451 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 481 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 521 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
Duration of security
Name and address of the insurer(s) and/or guarantor(s)
Name
Address
...........................................................................................................................
This certificate is valid until
Issued or certified by the Government of
...........................................................................................................................
(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 AccountRegulation 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)
0(b) oil, if the operation of the oil account is postponed
0(c) LNG, if the operation of the LNG account is postponed
0(d) LPG, if the operation of the LPG account is postponed
0(e) other substances
0.0001
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. 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.
— 2023, c. 26, s. 348
2014, c. 29
348 (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 313 of this Act are in force, paragraph 33(1)(a.1) of the Marine Liability Act is replaced by the following:
(a.1) permitting that person to reduce the amount that they are required to pay to the fund by up to an amount equal to the sum of any amounts paid to a claimant before the constitution of the fund in respect of a maritime claim for oil pollution damage caused by bunker oil as defined in paragraph 5 of Article 1 of the Bunkers Convention as defined in subsection 47(1);
(3) On the first day on which both section 33 of the other Act and section 324 of this Act are in force, subsection 74.26(1) of the Marine Liability Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after that paragraph:
(a.1) permitting that person to reduce the amount that they are required to pay to the fund by up to an amount equal to the sum of any amounts paid to a claimant before the constitution of the fund; and
(4) On the first day on which both section 33 of the other Act and section 325 of this Act are in force, subsections 74.27(1) and (2) of the Marine Liability Act are replaced by the following:
Public notice
74.27 (1) The person constituting the fund must, as soon as feasible, give notice of the fund’s constitution in
(a) the Canada Gazette;
(b) a newspaper in general circulation in the region where the incident occurred; and
(c) any other appropriate manner in the communities potentially affected by the incident.
Accessibility
(1.1) Notices given under paragraphs (1)(b) and (c) are to be made accessible to the public for a period of at least 30 days.
Proof of accessibility
(2) The person constituting the fund must, within 15 days after the 30th day of the period referred to in subsection (1.1), file evidence in the Admiralty Court that the notices have been made accessible to the public for a period of at least 30 days.
(5) On the first day on which both subsection 45(1) of the other Act and subsection 335(3) of this Act are in force, paragraph 106(3)(b) of the Marine Liability Act is replaced by the following:
(b) the claimant is then precluded from pursuing any rights that they may have had, other than 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, except that
(i) with respect to the acceptance of an offer of compensation made under paragraph 105(1)(a), the claimant may pursue any rights that they may have under subsection 103(1.2) in a single claim, and
(ii) with respect to the acceptance of an offer of compensation made under paragraph 105(1.1)(a) or (b), the claimant may pursue any rights that they may have under subsection 103(1) or (1.1) in a single claim;
(6) On the first day on which both subsection 49(2) of the other Act and subsection 340(1) of this Act are in force, the portion of paragraph 116(2)(b) of the Marine Liability Act before subparagraph (i) is replaced by the following:
(b) if the claim is based on subsection 51(1), 71(1) or 74.24(1) or paragraph 77(1)(b) or (c), or on 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,
— 2023, c. 26, s. 349
2018, c. 27
349 (1) In this section, other Act means the Budget Implementation Act, 2018, No. 2.
(2) On the first day on which both section 323 of this Act is in force and subsection 746(2) of the other Act has produced its effects, section 74.24 of the Marine Liability Act is amended by adding the following after subsection (2):
Liability — fishing, hunting, trapping and harvesting
(3) For greater certainty, for the purposes of Article 7 of the Hazardous and Noxious Substances Convention, the liability of the owner of a ship includes economic loss in relation to the exercise of fishing, hunting, trapping or harvesting rights recognized and affirmed by section 35 of the Constitution Act, 1982 suffered by an Indigenous group, community or people that holds those rights or suffered by a member of such a group, community or people.
(3) On the first day on which both subsection 333(3) of this Act is in force and subsection 746(8) of the other Act has produced its effects, subsection 103(3) of the Marine Liability Act is replaced by the following:
Exception
(3) Subsections (1) to (1.2) do not apply to a person in a state other than Canada, and subsections (1) and (1.1) do not apply to a response organization referred to in paragraph 51(1)(a), 71(1)(a), 74.24(1)(a) or 77(1)(b).
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