DIVISION 1

CIVIL LIABILITY FOR POLLUTION

Owners of Ships

Liability for pollution and related costs

51. (1) Subject to the other provisions of this Part, the owner of a ship is liable

    (a) for oil pollution damage from the ship;

    (b) for costs and expenses incurred by

      (i) the Minister of Fisheries and Oceans,

      (ii) a response organization within the meaning of section 654 of the Canada Shipping Act,

      (iii) any other person in Canada, or

      (iv) any person in a state, other than Canada, that is a party to the Civil Liability Convention,

    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 the ship, 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 costs and expenses incurred

      (i) by the Minister of Fisheries and Oceans in respect of measures taken under paragraph 678(1)(a) of the Canada Shipping Act, in respect of any monitoring under paragraph 678(1)(b) of that Act or in relation to any direction given under paragraph 678(1)(c) of that Act, or

      (ii) by any other person in respect of measures the person was directed to take or prohibited from taking under paragraph 678(1)(c) of the Canada Shipping 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.

Liability for environ-
mental damage

(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 actually undertaken or to be undertaken.

Strict liability subject to certain defences

(3) The owner's liability under subsection (1) does not depend on proof of fault or negligence, but the owner is not liable under that subsection if the owner establishes 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 responsible for the maintenance of lights or other navigational aids, in the exercise of that function.

Owner's rights against third parties

(4) Nothing in this Part 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.

Owner's own claim for costs and expenses

(5) Costs and expenses incurred by the owner of a ship in respect of measures voluntarily taken by the owner to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from the ship, 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 the owner's liability under this section.

Limitation period

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

    (a) if pollution damage occurred, before the earlier of

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

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

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

Admiralty Court has jurisdiction

52. (1) Subject to section 59, all claims under this Part may be sued for and recovered in the Admiralty Court.

Jurisdiction may be exercised in rem

(2) Subject to subsection (3), the jurisdiction conferred on the Admiralty Court by subsection (1) 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.

Exempt ships and cargoes

(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 arose or the action is commenced, the ship was being used exclusively for non-commercial governmental purposes.

Action by Administra-
tor

53. (1) If there is an occurrence that gives rise to liability of an owner of a ship under subsection 51(1),

    (a) the Administrator may, either before or after receiving a claim under section 85, 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 under section 54 or 55.

Subrogation

(2) The Administrator may continue an action referred to in subsection (1) only if the Administrator has become subrogated to the rights of the claimant under subsection 87(3).

Entitlement to claim security

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

    (a) in the case of a Convention ship, a fund has been constituted under section 58; and

    (b) in the case of any other ship, a fund has been constituted under Article 11 of the Limitation of Liability Convention.

Limitation of liability - Convention ships

54. (1) The maximum liability under section 51 of an owner of a Convention ship in respect of an occurrence is

    (a) if the ship has a tonnage of not more than 5,000 tons, 3,000,000 units of account; and

    (b) if the ship has a tonnage of more than 5,000 tons, 3,000,000 units of account for the first 5,000 tons and 420 units of account for each additional ton, not exceeding 59,700,000 units of account in the aggregate.

Conduct barring limitation

(2) An owner is not entitled to limitation of liability under subsection (1) if it is proved that the actual or anticipated oil pollution damage resulted from the personal act or omission of the owner, committed with the intent to cause the oil pollution damage or recklessly and with knowledge that the oil pollution damage would probably result.

Calculation of tonnage

(3) For the purpose of subsection (1), a ship's tonnage is the gross tonnage 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 made, to the Annexes or Appendix to that Convention.

Definition of ``unit of account''

(4) In paragraphs (1)(a) and (b), ``unit of account'' means a special drawing right issued by the International Monetary Fund.

Amendment of limits

(5) If amendments to the limits of liability specified in paragraph 1 of Article V of the Civil Liability Convention are made in accordance with Article 15 of the Protocol of 1992 concluded at London on November 27, 1992, the Governor in Council may, by order, on the recommendation of the Minister, amend the limits of liability set out in subsection (1) by the same amounts.

Limitation of liability - other ships

55. The maximum liability under section 51 of an owner of a ship other than a Convention ship in respect of an occurrence shall be as determined in accordance with Part 3.

Special Rules - Convention Ships

No damage in Canadian territory or Canadian waters

56. No action may be commenced in a court in Canada in relation to an occurrence that gives rise to liability of an owner of a Convention ship in respect of matters referred to in subsection 51(1) if

    (a) the occurrence does not result in oil pollution damage on the territory of Canada, in Canadian waters or in the exclusive economic zone of Canada; and

    (b) no costs, expenses, loss or damage described in paragraph 51(1)(b) or (c) are incurred in respect of actual or anticipated oil pollution damage in any of the areas described in paragraph (a).

Remedies exclusive

57. (1) The owner of a Convention ship is not liable for the matters referred to in subsection 51(1) otherwise than as provided by this Part.

Servants, etc., not liable

(2) Subject to subsection 51(4), none of the following persons is liable for the matters referred to in subsection 51(1) unless the actual or anticipated oil pollution damage resulted from a personal act or omission of theirs that was committed with intent to cause the damage or was committed recklessly and with knowledge that the damage would probably result:

    (a) a servant or an agent of the owner of a Convention ship or one of its crew members;

    (b) the pilot of a Convention ship or any other person who, without being a member of the crew, performs services for the Convention ship;

    (c) a charterer, a manager or an operator of a Convention ship;

    (d) any person using a Convention ship to perform salvage operations with the consent of the owner or on the instructions of a competent public authority;

    (e) a person taking measures to prevent oil pollution damage from a Convention ship; or

    (f) a servant or an agent of a person referred to in any of paragraphs (c) to (e).

Owners jointly and severally liable

(3) If two or more owners of Convention ships are liable for costs, expenses, loss or damage referred to in subsection 51(1), the owners of all those ships are jointly and severally liable, to the extent that the costs, expenses, loss or damage are not reasonably separable.

Shipowner's fund

58. (1) The owner of a Convention ship is not entitled to limitation of liability under subsection 54(1) unless the owner constitutes a fund, in this section referred to as the ``shipowner's fund'', in an amount equal to the limit of the owner's liability under that subsection.

Manner in which fund to be constituted

(2) A shipowner's fund may be constituted by the owner of a ship

    (a) making a payment into court of the amount described in subsection (1); or

    (b) filing with the court a guarantee or other security satisfactory to the court.

Distribution of fund

(3) A shipowner's fund shall be distributed among claimants in proportion to the amount of their established claims as determined by the court.

Subrogation

(4) If, before the distribution of a shipowner's fund, the owner of the Convention ship, or anyone on behalf of the owner, pays compensation in respect of any matters referred to in subsection 51(1) as a result of the occurrence in question, the person who pays the compensation is subrogated to the rights that the person compensated would have had under this Part.

Postponing distribution

(5) If the owner of a Convention ship, or a person who pays compensation on behalf of the owner, satisfies the court that, because of a claim that might later be established before a court of a state other than Canada that is not a party to the Civil Liability Convention,

    (a) they may be compelled to pay compensation mentioned in subsection (4) after the distribution of the shipowner's fund, and

    (b) they would enjoy a right of subrogation under subsection (4) if the compensation were paid before the distribution of the shipowner's fund,

the court may postpone the distribution of the portion of the shipowner's fund that it consid ers appropriate, having regard to the possibil ity that such a claim might be established.

Duplication of actions barred

59. If the owner of a Convention ship has constituted a shipowner's fund under section 58 with a court of a state other than Canada that is a party to the Civil Liability Convention, no action may be commenced or continued in any court in Canada in relation to the same occurrence in respect of matters referred to in subsection 51(1).

Certificate attesting to financial responsibility

60. (1) A Convention ship carrying, in bulk as cargo, more than 2,000 metric tons of crude oil, fuel oil, heavy diesel oil, lubricating oil or any other persistent hydrocarbon mineral oil shall not

    (a) enter or leave a port in Canadian waters or in the exclusive economic zone of Canada or arrive at or leave an offshore terminal in Canadian waters or in the exclusive economic zone of Canada, 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 the Civil Liability 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

unless a certificate described in Article VII of the Civil Liability Convention and subsection 61(1) has been issued in respect of the ship, showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of the ship.

Government- owned ship

(2) In relation to a Convention ship owned by a state that is a party to the Civil Liability Convention and being used for commercial purposes, it is a sufficient compliance with subsection (1) if there is in force a certificate issued by the government of the state showing that the ship is owned by that state and that any liability for pollution damage as defined in Article I of that Convention will be met up to the limit stipulated in Article V of that Convention.

Certificate to be carried on board

(3) A certificate referred to in subsection (1) or (2) must be carried on board the Convention ship to which it relates.

Certificate to be produced on demand

(4) The master of a Convention ship or any other person on board shall produce the certificate or give details of it at the request of any authorized officer of the Government of Canada.

By whom certificate to be issued

61. (1) The certificate referred to in subsection 60(1)

    (a) must be a certificate issued by the Minister, if the Convention ship is registered in Canada;

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

    (c) must be a certificate issued or recognized by the Minister, if the Convention ship is registered in a state other than Canada that is not a party to the Civil Liability Convention.

Issuance of certificate by Minister

(2) On an application to the Minister for a certificate referred to in subsection 60(1) in respect of a Convention 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, subject to subsection (3), issue such a certificate to the owner of the ship if the Minister is satisfied that a contract of insurance or other security satisfying the requirements of Article VII of the Civil Liability Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

When Minister may refuse certificate

(3) If the Minister believes that the guarantor will be unable to meet the guarantor's obligations under the contract of insurance or other security referred to in subsection 60(1), or that the insurance or other security will not cover the owner's liability under section 51, the Minister may refuse to issue the certificate referred to in subsection 60(1).