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

Full Document:  

Act current to 2024-05-01 and last amended on 2023-06-22. Previous Versions

PART 5Liability for Carriage of Goods by Water (continued)

Hague-Visby Rules (continued)

 [Repealed, 2023, c. 26, s. 321]

 [Repealed before coming into force, 2008, c. 20, s. 3]

Institution of Proceedings in Canada

Marginal note:Claims

  •  (1) If a contract for the carriage of goods by water provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, if

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

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

    • (c) the contract was made in Canada.

  • Marginal note:Agreement to designate

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

PART 6Liability and Compensation for Pollution

DIVISION 1International Conventions

Interpretation

Marginal note:Definitions

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

    Bunkers Convention

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

    Civil Liability Convention

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

    discharge

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

    Fund Convention

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

    Hazardous and Noxious Substances Convention

    Hazardous and Noxious Substances Convention means the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010, concluded at London on April 30, 2010. (Convention sur les substances nocives et potentiellement dangereuses)

    HNS Fund

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

    in bulk

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

    International Fund

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

    owner

    owner

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

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

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

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

    Supplementary Fund

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

    Supplementary Fund Protocol

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

  • Marginal note:Words and expressions defined

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

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

    • (b) Article 1 of the Fund Convention;

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

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

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

  • Marginal note:Inconsistency

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

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

Civil Liability Convention

Marginal note:Force of law

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

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

Marginal note:Contracting State

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

  • Marginal note:Appropriate authority

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

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

Marginal note:Schedule 5 — limits amendment

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

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

Marginal note:Liability for pollution and related costs

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

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

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

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

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

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

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

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

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

Marginal note:Admiralty Court’s jurisdiction — limitation fund

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

  • Marginal note:Right to assert limitation defence

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

  • Marginal note:Stay of proceedings

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

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

Marginal note:Admiralty Court’s powers

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

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

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

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

  • Marginal note:Admiralty Court may postpone distribution

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

  • Marginal note:Procedural matters

    (3) The Admiralty Court may

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

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

Marginal note:Public notice

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

    • (a) the Canada Gazette;

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

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

  • Marginal note:Accessibility

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

  • Marginal note:Proof of accessibility

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

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

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

Marginal note:Absence of certificate

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

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

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

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

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

  • Marginal note:Certificate to be produced on request

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

 

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