Canada Shipping Act, 2001 (S.C. 2001, c. 26)

Detention of Vessels

Marginal note:Detention

• 177 (1) If a pollution response officer believes on reasonable grounds that an offence under this Part has been committed by or in respect of a vessel, he or she may make a detention order in respect of the vessel.

• Marginal note:Order to be in writing

  (2) A detention order made under this section must be in writing and be addressed to every person empowered to grant clearance in respect of the vessel.

• Marginal note:Detention order to be served on master

  (3) Notice of a detention order made under this section in respect of a vessel must be served on the master

  • (a) by delivering a copy of the notice personally to the master; or

  • (b) if service cannot reasonably be effected in the manner provided in paragraph (a), by leaving a copy of the notice with the person who is, or appears to be, in charge of the vessel or, if there is no such person, by fixing a copy of the notice to a prominent part of the vessel.

• Marginal note:Contents of notice

  (4) The notice must

  • (a) indicate the measures to ensure compliance with this Part that must be taken for the detention order to be rescinded; and

  • (b) if an indictment has been preferred in respect of the offence, indicate the amount and form of security that, pending the outcome of any proceedings related to the indictment, must be deposited with the Minister of Fisheries and Oceans for the detention order to be rescinded.

• Marginal note:Foreign state to be notified

  (5) If a vessel in respect of which a detention order is made under this section is registered in a foreign state, that state is to be notified that the order was made.

• Marginal note:Rescission of orders

  (6) A pollution response officer must

  • (a) rescind a detention order made under this section if he or she is satisfied that the measures indicated in the notice referred to in subsection (4) have been taken and, if applicable, security in the amount and form indicated in the notice referred to in that subsection has been deposited with the Minister of Fisheries and Oceans; and

  • (b) notify, in the form and manner specified by the Minister of Fisheries and Oceans, the master and the persons referred to in subsection (2) of the rescission.

• Marginal note:Duty of persons empowered to give clearance

  (7) No person to whom a detention order made under this section is addressed shall, after notice of the order is received by them, grant clearance to the vessel in respect of which the order was made unless they have been notified that the order has been rescinded under subsection (6).

• Marginal note:Movement of vessel prohibited

  (8) Subject to section 179, no person shall move a vessel that is subject to a detention order made under this section.

• Marginal note:Liability for expenses

  (9) The authorized representative or, if there is no authorized representative, the owner of a vessel that is detained under this section is liable for all expenses incurred in respect of the detained vessel.

• Marginal note:Return of security

  (10) The Minister of Fisheries and Oceans, after proceedings in respect of which security was deposited are concluded,

  • (a) may apply the security to reimburse Her Majesty in right of Canada, either fully or partially, if any of the expenses or any fine has not been paid; and

  • (b) is to return the security, or any part of it that remains if it is applied under paragraph (a), if all expenses and any fine imposed have been paid.

Marginal note:Interference with service

178 No person shall wilfully interfere with the service of a notice of a detention order.

Marginal note:Direction to move a detained vessel

179 The Minister of Fisheries and Oceans may

• (a) on application made by the authorized representative or, if there is no authorized representative, the owner of a detained vessel, in the form and manner specified by the Minister of Fisheries and Oceans, permit the master to move it in accordance with the directions of the Minister of Fisheries and Oceans;

• (b) on application made by the owner of a dock or wharf, or by the person in charge of a harbour, at which a detained vessel is situated, in the form and manner specified by the Minister of Fisheries and Oceans, direct the person who is, or appears to be, in charge of the vessel to move the vessel in accordance with the directions of the Minister of Fisheries and Oceans; and

• (c) if a person to whom a direction is given under paragraph (b) does not comply with it and the Minister of Fisheries and Oceans is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the vessel, authorize the applicant to move the vessel in accordance with the Minister of Fisheries and Oceans’ directions and at the expense of the authorized representative or, if there is no authorized representative, the owner.

Response Measures

Marginal note:Minister of Fisheries and Oceans — measures

• 180 (1) If the Minister of Fisheries and Oceans believes on reasonable grounds that a vessel, an oil handling facility or a hazardous and noxious substances handling facility has discharged, is discharging or may discharge a pollutant, that Minister may

  • (a) take the measures that that Minister considers necessary to repair, remedy, minimize or prevent pollution damage from the vessel or facility, including, in the case of a vessel, by removing — or by selling, dismantling, destroying or otherwise disposing of — the vessel or its contents;

  • (b) monitor the measures taken by any person or vessel to repair, remedy, minimize or prevent pollution damage from the vessel or facility; or

  • (c) if that Minister considers it necessary to do so, direct any person or vessel to take measures referred to in paragraph (a) or to refrain from doing so.

• Marginal note:Clear title

  (2) When a vessel or its contents are disposed of under paragraph 180(1)(a), the Minister of Fisheries and Oceans may give the person acquiring them a valid title to the vessel or its contents free from any mortgage, hypothec, maritime lien or other interest or right that is in existence at the time of the disposition.

• Marginal note:At risk and expense of owner

  (2.1) The disposition is at the risk, cost and expense of the owner of the vessel or its contents.

• Marginal note:Payment of proceeds

  (2.2) When a vessel or its contents are disposed of under paragraph 180(1)(a), any surplus remaining from the proceeds of the disposition after deducting the costs and expenses incurred in respect of the disposition shall be paid to the Minister of Fisheries and Oceans, in respect of all costs and expenses incurred in taking any other measures under this Part, and to the holders, if known at the time of the disposition, of any mortgages, hypothecs, maritime liens or other interests or rights that are in existence at the time of the disposition, and any amount that remains after paying the Minister of Fisheries and Oceans and the holders shall be paid to the owner of the vessel or the contents.

• Marginal note:Federal Court directions

  (2.3) The Minister of Fisheries and Oceans may apply to the Federal Court for directions as to the allocation of the surplus referred to in subsection (2.2).

• Marginal note:Compensation

  (3) Compensation must be paid by His Majesty in right of Canada for the services of any person or vessel, other than the operator of a vessel, an oil handling facility or a hazardous and noxious substances handling facility that had discharged, was discharging or may have discharged a pollutant, that has complied with a direction issued under paragraph (1)(c).

• Marginal note:Priority

  (4) A direction made by the Minister of Fisheries and Oceans under paragraph (1)(c) prevails over an order or direction made under any Act of Parliament, to the extent of any inconsistency.

Marginal note:Entry on private property

• 180.1 (1) The Minister of Fisheries and Oceans or a pollution response officer may enter private property – other than a dwelling-house – and pass through it, including with vehicles and equipment, for the purposes of exercising their powers or performing their duties or functions under this Part.

• Marginal note:Accompanying persons

  (2) If the Minister of Fisheries and Oceans or a pollution response officer enters private property and passes through it, they may be accompanied by any person who they believe is necessary to help them in exercising their powers or performing their duties or functions under this Part.

• Marginal note:Use of property

  (3) If required, the Minister of Fisheries and Oceans or the pollution response officer may use property adjacent to or in the vicinity of a vessel, oil handling facility or hazardous and noxious substances handling facility — other than a dwelling-house — for the purposes of exercising their powers or performing their duties or functions under this Part, and any person accompanying that Minister or the pollution response officer may use such property to help that Minister or officer exercise their powers or perform their duties or functions under this Part.

• Marginal note:Compensation

  (4) Her Majesty in right of Canada may compensate the owner of the property referred to in subsection (3), or any person that has, either by law or by contract, the rights of the owner of that property in respect of its possession and use, for any loss or damage caused by the use of that property under subsection (3) that exceeds the value of the benefit derived by the owner or person from that use.

Marginal note:Statutory Instruments Act

180.2 An order or direction given under this Part by the Minister of Fisheries and Oceans or a pollution response officer is not a statutory instrument as defined in the Statutory Instruments Act.

Marginal note:Immunity — taking or refraining from taking measures

• 181 (1) A person who, or vessel that, is directed to take or refrain from taking measures under paragraph 180(1)(c) is not personally liable, either civilly or criminally, for anything they do or omit to do in the course of complying with the direction, unless it is established that the act or omission was not reasonable in the circumstances.

• Marginal note:Immunity — providing assistance

  (1.1) A person who provides assistance or advice in taking or refraining from taking any measure under section 180 is not personally liable, either civilly or criminally, for anything that they do or omit to do in the course of providing the assistance or advice, unless it is established that the act or omission was not reasonable in the circumstances.

• Marginal note:Immunity — accompanying Minister or officer

  (1.2) A person who accompanies the Minister of Fisheries and Oceans or a pollution response officer under subsection 180.1(2) or (3) is not personally liable, either civilly or criminally, for anything that they do or omit to do in the exercise of their powers under that subsection in accompanying the Minister or officer, unless it is established that the act or omission was not reasonable in the circumstances.

• Marginal note:Civil or criminal liability

  (2) Response organizations, their agents or mandataries, and persons who have been designated in writing by the Minister as approved responders, are not personally liable, either civilly or criminally, in respect of any act or omission occurring or arising during the course of a response operation unless it is shown that the act or omission was committed with the intent to cause loss or damage, or recklessly and with the knowledge that loss or damage would probably result.

• Marginal note:Exception

  (3) Nothing in subsection (1) affects the liability of the owner of a vessel, or of the vessel, that had discharged, was discharging or may have discharged a pollutant in respect of

  • (a) the occurrence that resulted in the taking of the measures referred to in subsection 180(1); and

  • (b) any act or omission in the course of complying with a direction given under paragraph 180(1)(c).

• Marginal note:Definition of response operation

  (4) In this section, response operation means the activities undertaken following a discharge, or a grave and imminent threat of a discharge, from a vessel or an oil handling facility, including activities related to or connected with surveillance of and assessing areas of pollution, mobilizing and demobilizing response equipment and resources, protective booming, containment, recovery, dispersal or destruction of the pollutant, shoreline mitigation and restoration, transporting and disposing of recovered pollutant or waste materials and planning and supervising activities related to the response operation.