Bill C-7

2nd Session, 40th Parliament,

57-58 Elizabeth II, 2009

house of commons of canada

BILL C-7

An Act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other Acts

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

MARINE LIABILITY ACT

1. Section 24 of the Marine Liability Act is amended by adding the following in alphabetical order:

“passenger” means

(a) a person carried on board a ship in circumstances described in paragraph 2(a) or (b) of Article 7 of the Convention;

(b) a participant in an adventure tourism activity referred to in subsection 37.1(1);

(c) a person carried on board a vessel propelled manually by paddles or oars and operated for a commercial or public purpose; and

(d) a sail trainee.

“unit of account” means a special drawing right issued by the International Monetary Fund.

2. Section 26 of the Act is replaced by the following:

26. (1) Subject to the other provisions of this Part, Articles 1 to 15 and 18 of the Convention and Articles 8 and 9 of the Protocol have the force of law in Canada.

(2) The Governor in Council may, by regulation, amend Part 3 of Schedule 1 to add or delete a reservation made by Canada under Article 18 of the Convention.

(3) This Part does not apply to a claim that is the subject of a reservation made by Canada.

3. Sections 28 and 29 of the Act are replaced by the following:

28. (1) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to passengers of a ship of less than 300 gross tonnage is the greater of

(a) 2 000 000 units of account, and

(b) 175 000 units of account multiplied by

(i) the number of passengers that the ship is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001, or

(ii) the number of passengers on board the ship, if no Canadian maritime document is required under that Act.

(2) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to persons carried on board a ship of less than 300 gross tonnage otherwise than under a contract of passenger carriage is the greater of

(a) 2 000 000 units of account, and

(b) 175 000 units of account multiplied by

(i) the number of passengers that the ship is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001, or

(ii) the number of persons on board the ship, if no Canadian maritime document is required under that Act.

(3) Subsection (2) does not apply in respect of

(a) the master of a ship, a member of a ship’s crew — or any other person employed or engaged in any capacity on the business of a ship — when they are carried on board the ship;

(b) a person carried on board a ship other than a ship operated for a commercial or public purpose;

(c) a person carried on board a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented;

(d) a person who is a member of a class of persons prescribed under paragraph 34.1(a).

29. The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is

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

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

29.1 For the purposes of sections 28 and 29, a ship’s gross tonnage shall be calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969, concluded at London on June 23, 1969, including any amendments, whenever they are made, to the Annexes or Appendix to that Convention.

4. Subsection 30(2) of the Act is replaced by the following:

(2) For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in the manner described in section 29.1.

5. Section 31 of the Act is replaced by the following:

31. (1) The Governor in Council may, by regulation, amend Schedule 1 to implement an amendment that is made in accordance with Article 8 of the Protocol to any of the limits of liability that are specified in paragraph 1 of Article 6 or paragraph 1 of Article 7 of the Convention.

(2) The Governor in Council may, by regulation, amend the limits of liability set out in sections 28, 29 and 30.

6. The Act is amended by adding the following after section 34:

Regulations

34.1 The Governor in Council may make regulations

(a) prescribing classes of persons for the purpose of paragraph 28(3)(d); and

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

7. (1) Paragraph 36(1)(a) of the Act is replaced by the following:

(a) the definition “ship” in Article 1 of the Convention shall be read as including any vessel or craft designed, used or capable of being used solely or partly for navigation, whether seagoing or not, but not including an air cushion vehicle or a vessel propelled manually by paddles or oars; and

(2) Section 36 of the Act is amended by adding the following after subsection (2):

(3) In the event of any inconsistency between this section and sections 35 and 37 to 40 of this Act and Articles 1 to 22 of the Convention, those sections prevail to the extent of the inconsistency.

8. Paragraph 37(2)(b) of the Act is amended by striking out “and” at the end of subparagraph (i) and by adding the following after subparagraph (ii):

(iii) a person carried on board a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented, and

9. The Act is amended by adding the following after section 37:

37.1 (1) This Part does not apply to an adventure tourism activity that meets the following conditions:

(a) it exposes participants to an aquatic environment;

(b) it normally requires safety equipment and procedures beyond those normally used in the carriage of passengers;

(c) participants are exposed to greater risks than passengers are normally exposed to in the carriage of passengers;

(d) its risks have been presented to the participants and they have accepted in writing to be exposed to them; and

(e) any condition prescribed under paragraph 39(c).

(2) This Part does not apply to the carriage of a sail trainee or a person who is a member of a class of persons prescribed under paragraph 39(d).

10. Sections 39 and 40 of the Act are replaced by the following:

39. The Governor in Council may make regulations

(a) respecting insurance or other financial security to be maintained in respect of classes of carriage, ships or persons to cover liability under this Part up to the maximum amount set out in it;

(b) respecting the form and manner in which proof of insurance or other financial security is provided;

(c) prescribing any condition for the purpose of subsection 37.1(1);

(d) prescribing classes of persons for the purpose of subsection 37.1(2); and

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

40. The Governor in Council may, by regulation, amend Schedule 2 to implement an amendment that is made in accordance with Article VIII of the Protocol to any of the limits of liability that are specified in paragraph 1 of Article 7 or in Article 8 of the Convention, including the deductibles referred to in that Article 8.

11. The heading “Interpretation” before section 47 and sections 47 to 131 of the Act are replaced by the following:

Division 1

International Conventions

Interpretation

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

“Bunkers Convention” means the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, concluded at London on March 23, 2001.

“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.

“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.

“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.

“in bulk” means in a hold or tank that is part of a ship’s structure, without any intermediate form of containment.

“International Fund” means the International Oil Pollution Compensation Fund, 1992 established by Article 2 of the Fund Convention.

“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.

“Supplementary Fund” means the International Oil Pollution Compensation Supplementary Fund, 2003 established by Article 2 of the 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.

(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; and

(d) Article 1 of the Bunkers Convention.

(3) In the event of an inconsistency between this section and sections 48 to 74 and 79 to 90 and the Civil Liability Convention, the Fund Convention, the Supplementary Fund Protocol or the Bunkers Convention, those sections prevail to the extent of the inconsistency.

Civil Liability Convention

48. 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.

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

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

50. 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.

51. 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.

52. (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.

(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.

(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.

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

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

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

(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.

(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.

54. (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.

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

(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.

55. (1) Unless a ship carries a certificate described in Article VII of the Civil Liability Convention issued in accordance with subsection 56(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of a ship carrying, in bulk as cargo, more than 2 000 metric tons of oil, the ship must not

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

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

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

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

(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.

56. (1) The certificate shall be issued

(a) by the Minister, if the ship is registered in Canada;

(b) by or under the authority of the government of the state of registration, if the ship is registered in a state, other than Canada, that is a party to the Civil Liability Convention; or

(c) by the Minister or by or under the authority of the government of a state, other than Canada, that is a party to the Civil Liability Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.

(2) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Civil Liability Convention, the Minister shall issue the certificate to the owner of the ship, if he or she is satisfied that a contract of insurance or other security satisfying the requirements of Article VII of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

(3) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 55(1), or that the contract of insurance or other security will not cover the owner’s liability under the Civil Liability Convention, the Minister may refuse to issue the certificate.

(4) If the Minister believes that the guarantor is no longer able to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 55(1), or that the contract of insurance or other security no longer covers the owner’s liability under the Civil Liability Convention, the Minister may revoke the certificate issued by him or her.

Fund Convention

57. Articles 1 to 4, 6 to 10, 12 to 15, 36 ter, 29, 33 and 37 of the Fund Convention — that are set out in Schedule 6 — have the force of law in Canada.

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

59. The Governor in Council may, by regulation, amend Schedule 6 to implement an amendment — to the limits of liability that are specified in paragraph 4 of Article 4 of the Fund Convention — that is made in accordance with Article 33 of that Convention.

60. For the purposes of the application of the Fund Convention, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be “associated persons” within the meaning of “Associated person” in paragraph 2(b) of Article 10 of that Convention.

61. For the purposes of the rights and obligations referred to in section 62, the International Fund has the capacity, rights and obligations of a natural person, and the Director of the International Fund is its legal representative.

62. (1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51 or Article III of the Civil Liability Convention,

(a) the document commencing the proceedings shall be served on the International Fund and that Fund is then a party to the proceedings; and

(b) the International Fund may appear and take any action that its Director considers appropriate for the proper administration of that Fund.

(2) In addition to any method of service permitted by the rules of the court in which a proceeding is commenced, service of documents on the International Fund under paragraph (1)(a) may be effected by registered mail.

Supplementary Fund Protocol

63. Articles 1 to 15, 18, 20, 24, 25 and 29 of the Supplementary Fund Protocol — that are set out in Schedule 7 — have the force of law in Canada.

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

65. The Governor in Council may, by regulation, amend Schedule 7 to implement an amendment — to the limits of liability that are in Article 4 of the Supplementary Fund Protocol — that is made in accordance with Article 24 of that Protocol.

66. For the purposes of the application of the Supplementary Fund Protocol, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be “associated persons” within the meaning of “Associated person” in paragraph 2(b) of Article 10 of the Fund Convention.

67. For the purposes of the rights and obligations referred to in section 68, the Supplementary Fund has the capacity, rights and obligations of a natural person, and the Director of the Supplementary Fund is its legal representative.

68. (1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51 or Article III of the Civil Liability Convention,

(a) the document commencing the proceedings shall be served on the Supplementary Fund and that Fund is then a party to the proceedings; and

(b) the Supplementary Fund may appear and take any action that its Director considers appropriate for the proper administration of that Fund.

(2) In addition to any method of service permitted by the rules of the court in which proceedings are commenced, service of documents on the Supplementary Fund under paragraph (1)(a) may be effected by registered mail.

Bunkers Convention

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

70. (1) For the purposes of the application of the Bunkers Convention, Canada is a State Party.

(2) For the purposes of the application of Article 7 of the Bunkers Convention, the Minister is the appropriate authority for Canada.

71. The liability of the owner of a ship in relation to preventive measures, for the purposes of the Bunkers Convention, also includes

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

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

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

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

72. Part 3 applies to claims arising under the Bunkers Convention.

73. (1) Unless a ship carries a certificate described in Article 7 of the Bunkers Convention issued in accordance with subsection 74(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of a ship having 1 000 gross tonnage or more, the ship must not

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

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

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

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

(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.

74. (1) The certificate shall be issued

(a) by the Minister, if the ship is registered in Canada;

(b) by or under the authority of the government of the state of registration, if the ship is registered in a state, other than Canada, that is a party to the Bunkers Convention; or

(c) by the Minister or by or under the authority of the government of a state, other than Canada, that is a party to the Bunkers Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.

(2) The Minister may designate a person to issue, refuse or revoke a certificate on the Minister’s behalf.

(3) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Bunkers Convention, the Minister shall issue the certificate to the owner of the ship, if he or she is satisfied that a contract of insurance or other security satisfying the requirements of Article 7 of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

(4) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 73(1), or that the contract of insurance or other security will not cover the owner’s liability under the Bunkers Convention, the Minister may refuse to issue the certificate.

(5) If the Minister believes that the guarantor is no longer able to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 73(1), or that the contract of insurance or other security no longer covers the owner’s liability under the Bunkers Convention, the Minister may revoke the certificate issued by him or her.

Division 2

Liability Not Covered by Division 1

Interpretation

75. The following definitions apply in this Division.

“discharge”, in relation to a pollutant, means a discharge of a pollutant that directly or indirectly results in the pollutant entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.

“oil” means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.

“oil pollution damage”, in relation to any ship, means loss or damage outside the ship caused by contamination resulting from the discharge of oil from the ship.

“owner” means the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use.

“pollutant” means oil and any substance or class of substances identified by the regulations as a pollutant for the purposes of this Part and includes

(a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the waters’ quality to an extent that their use would be detrimental to humans or animals or plants that are useful to humans; and

(b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the waters’ quality to an extent that their use would be detrimental to humans or animals or plants that are useful to humans.

“pollution damage”, in relation to any ship, means loss or damage outside the ship caused by contamination resulting from the discharge of a pollutant from the ship.

“ship” means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to its method of propulsion or lack of propulsion, and includes

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

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

Application

76. This Division applies in respect of actual or anticipated pollution damage, except for pollution damage covered by Division 1, irrespective of the location of the actual or anticipated discharge of the pollutant and irrespective of the location where any preventive measures are taken,

(a) on Canada’s territory or in Canadian waters; or

(b) in Canada’s exclusive economic zone.

77. (1) The owner of a ship is liable

(a) for oil pollution damage from the ship;

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

(c) for the costs and expenses incurred by

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

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

(2) If oil pollution damage from a ship results in impairment to the environment, the owner of the ship is liable for the costs of reasonable measures of reinstatement undertaken or to be undertaken.

(3) The owner’s liability under subsections (1) and (2) does not depend on proof of fault or negligence, but the owner is not liable under those subsections if they establish that the occurrence

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

(b) was wholly caused by an act or omission of a third party with intent to cause damage; or

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

(4) Nothing in this Division shall be construed as limiting or restricting any right of recourse that the owner of a ship who is liable under subsection (1) may have against another person.

(5) The costs and expenses incurred by the owner of a ship in respect of measures voluntarily taken by them to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, rank equally with other claims against any security given by that owner in respect of their liability under this section.

(6) No action lies in respect of a matter referred to in subsection (1) unless it is commenced

(a) if pollution damage occurs, within the earlier of

(i) three years after the day on which the pollution damage occurs, and

(ii) six years after the occurrence that causes the pollution damage or, if the pollution damage is caused by more than one occurrence having the same origin, six years after the first of the occurrences; or

(b) if no pollution damage occurs, within six years after the occurrence.

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

Division 3

General Provisions

Admiralty Court

79. (1) The Admiralty Court has jurisdiction with respect to claims for compensation brought in Canada under any convention under Division 1 and claims for compensation under Division 2.

(2) The jurisdiction conferred on the Admiralty Court may be exercised in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court.

(3) No action in rem may be commenced in Canada against

(a) a warship, coast guard ship or police vessel;

(b) a ship owned or operated by Canada or a province, or any cargo carried on such a ship, if the ship is engaged on government service; or

(c) a ship owned or operated by a state, other than Canada, or any cargo carried on such a ship, with respect to a claim if, at the time the claim arises or the action is commenced, the ship is being used exclusively for non-commercial governmental purposes.

Registration of Foreign Judgments

80. The following definitions apply in this section and in sections 81 to 89.

“foreign judgment” means a judgment — of a court of a state, other than Canada, that is a party to one of the following conventions or the protocol — rendered under the

(a) Civil Liability Convention within the meaning of subsection 47(1);

(b) Fund Convention within the meaning of subsection 47(1);

(c) Supplementary Fund Protocol within the meaning of subsection 47(1);

(d) Bunkers Convention within the meaning of subsection 47(1).

“judgment creditor” means a person in whose favour a foreign judgment is rendered, and includes the person’s assigns, successors, heirs, executors, liquidators of the succession, administrators and legal representatives.

“judgment debtor” means a person against whom a foreign judgment is rendered, and includes a person against whom the foreign judgment is enforceable under the law of the state in which it is rendered.

81. Sections 82 to 89 apply to a foreign judgment resulting from an occurrence that takes place after the convention or protocol under which the judgment is rendered comes into force in Canada.

82. (1) If a foreign judgment is rendered, the judgment creditor may, at any time during which it is enforceable under the law of the state in which it is rendered, apply to the Admiralty Court in accordance with its rules to have the foreign judgment registered in that Court.

(2) The Admiralty Court may, subject to subsections (3) and (4) and section 85, order the registration of the foreign judgment if it is satisfied

(a) that a case for registration has been made; and

(b) that the foreign judgment is not under appeal and is no longer subject to appeal under the law of the state in which it was rendered.

(3) If, in accordance with the Admiralty Court’s rules, the judgment debtor appears at the hearing of the application for registration, that Court may not order the registration of the foreign judgment if it is satisfied that

(a) the foreign judgment has been fully satisfied;

(b) the foreign court acted without jurisdiction;

(c) the foreign judgment was obtained by fraud; or

(d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case.

(4) If the Admiralty Court is satisfied that the foreign judgment has been partly satisfied, it shall order the foreign judgment to be registered only in respect of the balance remaining payable.

83. For the purpose of section 82, a foreign judgment includes any interest, up to the date of registration, that has accrued on it under the law of the state in which it was rendered.

84. Reasonable costs incurred by the judgment creditor related to the registration of the foreign judgment, including the cost of obtaining an exemplification or certified copy of it from the foreign court, are recoverable in the same manner as if they were amounts payable under the foreign judgment, and the costs are to be taxed by an Admiralty Court’s assessment officer and the assessment endorsed on the order for registration.

85. (1) A foreign judgment expressed in a currency other than Canadian currency may not be registered under section 82 until the Admiralty Court determines the equivalent amount in Canadian currency on the basis of the rate of exchange prevailing on the day on which the foreign judgment is rendered, as that rate is ascertained from any bank in Canada, and, for the purpose of making that determination, that Court may require the judgment creditor to provide any evidence of the applicable rate of exchange that that Court considers necessary.

(2) When the equivalent amount in Canadian currency is determined, the Admiralty Court shall certify on the order for registration the amount so determined, and the foreign judgment, when registered, is deemed to be a judgment for payment of the amount so certified.

86. Subject to section 87, a foreign judgment registered under section 82 has, as of the date of registration, the same force and effect as a judgment of the Admiralty Court’s rendered on that date.

87. If a foreign judgment is registered under section 82 after an ex parte hearing, execution of the registered judgment may not issue until the expiry of 30 days after the day on which the judgment debtor is served with a notice of registration of the foreign judgment in the manner set out in the Admiralty Court’s rules for the service of originating documents.

88. (1) At any time after a foreign judgment is registered under section 82, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the registration of the judgment set aside on any of the grounds set out in subsection (2).

(2) The Admiralty Court shall set aside the registration of the foreign judgment if it is satisfied that

(a) the foreign judgment has been fully or partly satisfied;

(b) the foreign court acted without jurisdiction;

(c) the foreign judgment was obtained by fraud;

(d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case;

(e) the registration of the foreign judgment was obtained by fraud;

(f) an error was made in the conversion of the foreign judgment to Canadian currency under section 85;

(g) the registered judgment included interest on the foreign judgment to which the judgment creditor was not entitled; or

(h) for any other reason, it erred in regis-tering the foreign judgment.

(3) If the Admiralty Court sets aside the registration of a foreign judgment on the ground that it has been partly satisfied, or on the ground referred to in paragraph (2)(f) or (g), it shall order the foreign judgment to be registered in the reduced amount.

89. (1) At any time after a foreign judgment is registered under section 82, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the execution of the registered judgment stayed on the grounds that an application to set aside the registration has been made under subsection 88(1), and, if that Court is satisfied that the application has been made, it may stay the execution of the judgment either absolutely or for the period and on the terms and conditions that it considers appropriate and may, on further evidence, vary or terminate a stay of execution.

(2) Execution of a registered judgment may only be stayed on the grounds that an application to set aside the registration has been made under subsection 88(1).

Regulations

90. The Governor in Council may make regulations

(a) imposing a fee for the issuance of a certificate under section 56 or 74;

(b) respecting conditions under which certif-icates may be issued, refused or revoked for the purposes of subsections 56(2) to (4);

(c) respecting the form and content of the notice to be given under subsection 54(1);

(d) extending the application of the Bunkers Convention, within the meaning of subsection 47(1), to ships or classes of ships excluded from the application of that Convention and specifying the terms and conditions that are applicable to those ships or classes of ships under Article 4 of that Convention;

(e) providing that Article 7 of the Bunkers Convention, within the meaning of subsection 47(1), does not apply to ships or classes of ships operating exclusively within the area referred to in Article 2(a)(i) of that Convention;

(f) governing the performance of the functions of a person designated under subsection 74(2);

(g) respecting conditions under which certif-icates may be issued, refused or revoked for the purposes of subsections 74(3) to (5); and

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

PART 7

SHIP-SOURCE OIL POLLUTION FUND

Interpretation

91. (1) The following definitions apply in this Part.

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

“in bulk” means in a hold or tank that is part of a ship’s structure, without any intermediate form of containment.

“oil” means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.

“oil pollution damage”, in relation to a ship, means loss or damage outside the ship caused by contamination resulting from the discharge of oil from the ship.

“owner”

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

(b) in relation to a ship subject to the Bunkers Convention, has the same meaning as the definition “Shipowner” in Article 1 of that Convention; and

(c) in relation to any other ship, means the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use.

“ship” means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to its method of propulsion or lack of propulsion, and includes

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

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

“Ship-source Oil Pollution Fund” means the Ship-source Oil Pollution Fund continued by section 92.

(2) In this Part, “Bunkers Convention”, “Civil Liability Convention”, “Fund Convention”, “International Fund”, “Supplementary Fund” and “Supplementary Fund Protocol” have the same meaning as in subsection 47(1).

Ship-source Oil Pollution Fund

92. (1) The account known as the Ship-source Oil Pollution Fund in the accounts of Canada is continued.

(2) The following shall be credited to the Ship-source Oil Pollution Fund:

(a) all payments received under sections 112 and 115;

(b) interest computed in accordance with section 93; and

(c) any amounts recovered by the Administrator under paragraph 106(3)(c).

(3) The following shall be charged to the Ship-source Oil Pollution Fund:

(a) all amounts that are directed by the Administrator to be paid under paragraph 106(3)(a) or 108(1)(a), subsection 108(6) or section 117 or under a settlement;

(b) all amounts for which the Administrator is liable under subsection 117(3);

(c) all interest to be paid under section 116;

(d) all costs and expenses that are directed to be paid under section 98;

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

(f) the amount of any judgment and any costs awarded against that Fund in litigation.

93. The Minister of Finance shall, at the times that the Governor in Council directs, credit to the Ship-source Oil Pollution Fund interest at a rate fixed by the Governor in Council on the balance from time to time of that Fund.

Administrator and Deputy Administrator

94. (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.

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

95. (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.

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

96. 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.

97. (1) The Administrator or Deputy Administrator shall not, while holding office, accept or hold any office or employment inconsistent with his or her duties and functions under this Part.

(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 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, on behalf of the Ship-source Oil Pollution Fund between the date of the contravention and the date that the appointment is terminated.

98. (1) On the direction of the Minister of Finance, all costs and expenses incurred by the Administrator and the Deputy Administrator in performing their duties and functions under this Part, and any fees for services rendered by the Administrator or Deputy Administrator calculated in accordance with a tariff prescribed by the regulations, shall be paid out of the Consolidated Revenue Fund and charged to the Ship-source Oil Pollution Fund.

(2) The Admiralty Court’s assessment officers may, at the request of the Minister of Justice, tax any account for costs, expenses or fees submitted by the Administrator or Deputy Administrator to the Minister of Finance as if the Administrator or Deputy Administrator were acting for the Crown in proceedings in that Court, but, on any such taxation, no fee may be allowed in excess of that set out in the tariff referred to in subsection (1).

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

(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.

100. 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.

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 for the matters referred to in sections 51, 71 and 77 in relation to oil, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention, 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.

(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.

(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.

102. (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, 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.

(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).

(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.

103. (1) In addition to any right against the Ship-source Oil Pollution Fund under section 101, a person who 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 actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.

(2) Unless the Admiralty Court fixes a shorter period under paragraph 111(a), a claim must be made

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

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

(3) Subsection (1) does not apply to a response organization referred to in paragraph 51(a), 71(a) or 77(1)(b) or a person in a state other than Canada.

104. 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.

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

(a) investigate and assess it; and

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

(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.

(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); 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.

(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.

(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.

106. (1) If the Administrator makes an offer of compensation to a claimant under paragraph 105(1)(b), the claimant shall, within 60 days after receiving the offer, notify the Administrator whether they accept or refuse it and, if no notification is received by the Administrator at the end of that period, the claimant is deemed to have refused the offer.

(2) A claimant may, within 60 days after receiving an offer of compensation or a notification that the Administrator has disallowed the claim, appeal the adequacy of the offer or the disallowance of the claim to the Admiralty Court, but in an appeal from the disallowance of a claim, that Court may consider only the matters described in paragraphs 105(3)(a) and (b).

(3) If a claimant accepts the offer of compensation from the Administrator,

(a) the Administrator shall without delay direct payment to be made to the claimant of the amount of the offer out of the Ship-source Oil Pollution Fund;

(b) the claimant is then precluded from pursuing any rights that they may have had against any person in respect of matters referred to in sections 51, 71 and 77, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in relation to the occurrence to which the offer of compensation relates;

(c) the Administrator is, to the extent of the payment to the claimant, subrogated to any rights of the claimant referred to in paragraph (b); and

(d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund, the Supplementary Fund or any other person liable and, for that purpose, the Administrator may commence an action in the Administrator’s or the claimant’s name, including a claim against the fund of the owner of a ship established under the Civil Liability Convention and may enforce any security provided to or enforceable by the claimant.

Claims for Loss of Income

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

(2) In this section, “claimant” means

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) The Admiralty Court may, by an order made under paragraph 111(a), shorten the period referred to in subsection (3) for filing a claim under that subsection.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proceedings Against the Owner of a Ship

109. (1) If a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention, except in the case of proceedings based on paragraph 77(1)(c) commenced by the Minister of Fisheries and Oceans in respect of a pollutant other than oil,

(a) the document commencing the proceedings shall be served on the Administrator by delivering a copy of it personally to him or her, or by leaving a copy at his or her last known address, and the Administrator is then a party to the proceedings; and

(b) the Administrator shall appear and take any action, including being a party to a settlement either before or after judgment, that he or she considers appropriate for the proper administration of the Ship-source Oil Pollution Fund.

(2) If the Administrator is a party to a settlement under paragraph (1)(b), he or she shall direct payment to be made to the claimant of the amount that the Administrator has agreed to pay under the settlement.

Limit of Liability of Ship-source Oil Pollution Fund

110. (1) The maximum aggregate liability of the Ship-source Oil Pollution Fund under sections 101, 103 and 107 and under any settlement, in respect of any particular occurrence, is

(a) $100,000,000 if the occurrence took place in the year ending March 31, 1990; or

(b) an amount calculated in accordance with subsection (2), if the occurrence takes place in any following year.

(2) The $100,000,000 limit of liability shall be adjusted annually so that the limit of liability arising out of any given occurrence that takes place in any following year is an amount equal to the product obtained by multiplying

(a) the limit of liability that would have been applicable for that following year if no adjustment had been made under this section with respect to that following year

by

(b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period.

(3) For the purpose of this section,

(a) a reference to the “Consumer Price Index, excluding the food and energy components,” for any 12-month period means the average of the Consumer Price Index for Canada, excluding the food and energy components, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period;

(b) the Governor in Council may, on the recommendation of the Minister, make regulations prescribing the manner in which the average of the Consumer Price Index, excluding the food and energy components, for any 12-month period is to be determined and the manner of expressing any such average that is determined to be a fraction of a whole number;

(c) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is adjusted to reflect a new time basis, a corresponding adjustment shall be made in the Consumer Price Index, excluding the food and energy components, for any 12-month period that is used for the purpose of calculating the limit of liability of the Ship-source Oil Pollution Fund under this section; and

(d) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is modified to reflect a new content basis, that modification does not affect the operation of this section.

(4) The Minister shall cause the limit of liability referred to in subsection (1), adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the limit of liability so published is admissible in any proceeding under this Part as conclusive proof of that limit of liability for the year in question.

111. If the Admiralty Court, on the application of the Administrator and on notice to other interested parties that that Court considers just in the circumstances, is satisfied that, in respect of a particular occurrence, the aggregate liability of the Ship-source Oil Pollution Fund under sections 101, 103 and 107 and subsection 109(2) may exceed its limit of liability under section 110, that Court may

(a) order the exclusion of any claimants who do not file their claims with the Administrator within the period that that Court directs; and

(b) order that payment out of the Ship-source Oil Pollution Fund of established claims be prorated or postponed, or any combination of prorating and postponement.

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

112. (1) In this section and sections 115 and 118, “oil” means “Contributing Oil” as defined in paragraph 3 of Article 1 of the Fund Convention if a levy is to be paid under that Convention or as defined in paragraph 7 of Article 1 of the Supplementary Fund Protocol if a levy is to be paid under that Protocol.

(2) If a levy determined in accordance with section 113 is imposed or re-imposed by the Minister under subsection 114(1), it shall be paid to the Receiver General

(a) in respect of each metric ton of oil in excess of 300 metric tons imported by ship into Canada in bulk as cargo; and

(b) in respect of each metric ton of oil in excess of 300 metric tons shipped from a place in Canada in bulk as cargo of a ship.

(3) The amounts payable under subsection (2) shall be paid, or security for payment of those amounts in an amount and form that is satisfactory to the Minister shall be given,

(a) in the case of oil imported by ship into Canada in bulk as cargo, before the oil is unloaded from the ship; and

(b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, before the ship leaves the facility where the oil is loaded on board the ship.

(4) All amounts payable under subsection (2) and any interest payable on those amounts are debts due to Her Majesty in right of Canada and are recoverable in any court of competent jurisdiction from

(a) in the case of oil imported by ship into Canada in bulk as cargo, the owner, consignee or shipper of the oil; and

(b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, the owner, consignor or shipper of the oil.

113. (1) The levy referred to in subsection 112(2) is 30 cents in the year ending on March 31, 1990.

(2) The levy referred to in subsection (1) shall be adjusted annually so that the levy in any following year is an amount equal to the product obtained by multiplying

(a) the levy that would have been payable in that following year if no adjustment had been made under this section with respect to that following year

by

(b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period.

(3) For the purpose of this section,

(a) a reference to the “Consumer Price Index, excluding the food and energy components,” for any 12-month period means the average of the Consumer Price Index for Canada, excluding the food and energy components, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period;

(b) the Governor in Council may, on the recommendation of the Minister, make regulations prescribing the manner in which the average of the Consumer Price Index, excluding the food and energy components, for any 12-month period is to be determined and the manner of expressing any such average that is determined to be a fraction of a whole number;

(c) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is adjusted to reflect a new time basis, a corresponding adjustment shall be made in the Consumer Price Index, excluding the food and energy components, for any 12-month period that is used for the purpose of calculating the levy under this section; and

(d) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is modified to reflect a new content basis, that modification does not affect the operation of this section.

(4) The Minister shall cause the levy referred to in subsection 112(2), adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the levy so published is admissible in any proceeding under this Part as conclusive proof of the levy for the year in question.

114. (1) The Minister, after consultation with the Minister of Fisheries and Oceans and the Minister of the Environment, may, by order, impose, discontinue or re-impose the levy referred to in subsection 112(2).

(2) The discontinuation of the levy under subsection (1) does not affect the operation of section 113.

115. If any portion of a levy is not paid as required by subsection 112(3), interest may be charged on the amount from time to time outstanding, at a rate fixed by the Governor in Council on the recommendation of the Minister of Finance, calculated from the time when the oil is unloaded from the ship or when the ship on which the oil is loaded leaves the facility at which it is loaded, as the case may be.

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 or the Supplementary Fund at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act as are in effect from time to time.

(2) Interest accrues on a claim under this Part

(a) if the claim is based on paragraph 77(1)(a) or on Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention, from the day on which the oil pollution damage occurs;

(b) if the claim is based on section 51 or 71 or paragraph 77(1)(b) or (c), or on Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention as they pertain to preventive measures,

(i) in the case of costs and expenses, from the day on which they are incurred, or

(ii) in the case of loss or damage, from the day on which the loss or damage occurs; or

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

117. (1) The Administrator shall direct payments to be made out of the Ship-source Oil Pollution Fund to the International Fund in accordance with Articles 10 and 12 of the Fund Convention and to the Supplementary Fund in accordance with Articles 10 and 12 of the Supplementary Fund Protocol.

(2) The Administrator shall communicate to the Minister and

(a) the Director of the International Fund, the information referred to in Article 15 of the Fund Convention, in accordance with that Article; or

(b) the Director of the Supplementary Fund, the information referred to in Article 13 of the Supplementary Fund Protocol, in accordance with that Article.

(3) The Administrator is liable for any financial loss to the International Fund or the Supplementary Fund, as the case may be, as a result of a failure to communicate the information.

(4) The Administrator may, for the purpose of subsection (2),

(a) at any reasonable time, enter any place where he or she believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to information referred to in Article 15 of the Fund Convention or Article 13 of the Supplementary Fund Protocol, as the case may be;

(b) examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that he or she believes, on reasonable grounds, contains any such information; and

(c) require the owner, occupier or person in charge of the place to give the Administrator all reasonable assistance in connection with the examination and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at the place with the Administrator.

(5) No person shall obstruct or hinder the Administrator in the exercise of any powers under subsection (4) or knowingly make a false or misleading statement, either orally or in writing, to the Administrator while he or she is exercising those powers.

(6) A dwelling place may not be entered under subsection (4) unless it is entered with the occupant’s consent or under the authority of a warrant issued under subsection (7).

(7) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing the Administrator to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

(a) the dwelling place is a place referred to in paragraph (4)(a);

(b) entry to the dwelling place is necessary for the purposes of subsection (2); and

(c) entry to the dwelling place has been refused or there are reasonable grounds to believe that it will be refused.

118. (1) Every person referred to in subsection 112(4) from whom the levy payable under section 112 may be recovered shall keep at their place of business in Canada, or at any other place in Canada that may be designated by the Minister, records and books of account that set out

(a) the amounts that are payable by that person under that section;

(b) the type and quantity of the oil in respect of which the amounts referred to in paragraph (a) are payable;

(c) the time when and place where the amounts referred to in paragraph (a) were paid or security for their payment was given in accordance with subsection 112(3); and

(d) any other information that the Minister may require to determine the amounts referred to in paragraph (a) and the time when they become payable.

(2) Every person who is required by this section to keep records and books of account shall, unless otherwise authorized by the Minister, retain those records and books of account, and every account or voucher necessary to verify the information contained in them, until the expiry of six years after the end of the year to which the records or books of account relate.

(3) Every person who is required by this section to keep records and books of account shall, at all reasonable times, make the records and books of account, and every account or voucher necessary to verify the information contained in them, available to any person designated in writing by the Minister and give that person every facility necessary to examine them.

119. (1) Any person designated in writing by the Minister for the purpose may, at any reasonable time, enter any place where the person believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to amounts payable under section 112 and

(a) examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that they believe, on reasonable grounds, contains any information relevant to the enforcement of this Part; and

(b) require the owner, occupier or person in charge of the place to give the designated person all reasonable assistance in connection with the examination under paragraph (a) and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at that place with the designated person.

(2) A designated person may not enter a dwelling place unless they enter it with the occupant’s consent or under the authority of a warrant issued under subsection (3).

(3) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing the designated person to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

(a) the dwelling place is a place referred to in subsection (1);

(b) entry to the dwelling place is necessary for the purpose of subsection (1); and

(c) entry to the dwelling place has been refused or there are reasonable grounds to believe that it will be refused.

(4) The persons designated by the Minister shall be provided with a certificate of their designation and, on entering any place referred to in subsection (1), shall produce the certificate on request to the owner, occupier or person in charge of the place.

(5) On the conclusion of an examination under this section, the designated person shall provide a report of their findings to the Minister.

(6) The original or a copy of any record, book of account, account, voucher or other document that is taken away under paragraph (1)(a) shall be returned to the person from whose custody it is taken within 21 days after it is taken or within any longer period that is directed by a judge of a superior court for cause or agreed to by a person who is entitled to its return.

(7) An application to a judge referred to in subsection (6) for a direction under that subsection may only be made on notice to the person from whose custody the record, book of account, account, voucher or other document is taken.

(8) A document purporting to be certified by the Minister to be a copy of a record, book of account, account, voucher or other document made under paragraph (1)(a) is admissible in evidence in any prosecution for an offence under this Part and is, in the absence of evidence to the contrary, proof of its contents.

(9) No person shall obstruct or hinder anyone engaged in carrying out their duties and functions under this section, or knowingly make a false or misleading statement, either orally or in writing, to any person so engaged.