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

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Act current to 2024-02-06 and last amended on 2023-06-22. Previous Versions

PART 7Ship-source Oil Pollution Fund (continued)

Administrator and Deputy Administrator

Marginal note:Appointment of Administrator

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

  • Marginal note:Reappointment of Administrator

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

  • Marginal note:Continuation in office

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

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

Marginal note:Deputy Administrator

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

  • Marginal note:Reappointment of Deputy Administrator

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

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

Marginal note:Resignation

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

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

Marginal note:Conflict of interest

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

  • Marginal note:Effect of contravention

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

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

Marginal note:Remuneration

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

  • Marginal note:Travelling, living and other expenses

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

  • Marginal note:Payment out of Consolidated Revenue Fund

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

  • Marginal note:Taxation

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

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

Marginal note:Deputy Administrator’s duties and functions

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

  • Marginal note:Administrator’s absence or incapacity

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

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

Marginal note:Professional and technical assistance

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

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

Liability of Ship-source Oil Pollution Fund

Process for Claims

Marginal note:Liability of Ship-source Oil Pollution Fund

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

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

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

    • (c) the claim exceeds

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

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

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

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

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

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

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

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

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

  • Marginal note:Exception — drilling activities

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

  • Marginal note:Exception — floating storage units

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

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

Marginal note:Action by Administrator

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

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

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

  • Marginal note:Subrogation

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

  • Marginal note:Entitlement to claim security

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

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

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

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

Marginal note:Claims filed with Administrator

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

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

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

  • Marginal note:Claims filed with Administrator — future losses

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

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

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

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

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

  • Marginal note:Period covered by the claim

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

  • Marginal note:Limitation or prescription period

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

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

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

  • Marginal note:Multiple occurrences

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

  • Marginal note:Exception

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

Marginal note:Liability — exception

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

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

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

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

Marginal note:Administrator’s duties

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

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

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

  • Marginal note:Administrators duties — future losses

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

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

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

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

  • Marginal note:Conditions

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

  • Marginal note:Administrator’s powers

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

  • Marginal note:Factors to be considered

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

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

    • (b) whether it resulted wholly or partially from

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

      • (ii) the claimant’s negligence.

  • Marginal note:Cause of occurrence

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

  • Marginal note:When claimant at fault

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

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

    • (b) the claimant’s negligence.

 

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