Bill C-57

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First Reading

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C-57

First Session, Forty-first Parliament,

60-61-62 Elizabeth II, 2011-2012-2013

HOUSE OF COMMONS OF CANADA

BILL C-57

An Act to enact the Aviation Industry Indemnity Act, to amend the Aeronautics Act, the Canada Marine Act, the Marine Liability Act and the Canada Shipping Act, 2001 and to make consequential amendments to other Acts

first reading, March 18, 2013

MINISTER OF TRANSPORT, INFRASTRUCTURE AND COMMUNITIES AND MINISTER OF THE ECONOMIC DEVELOPMENT AGENCY OF CANADA FOR THE REGIONS OF QUEBEC

90677

SUMMARY

Part 1 enacts the Aviation Industry Indemnity Act, which authorizes the Minister of Transport to undertake to indemnify certain aviation industry participants for loss, damage or liability caused by events that are commonly referred to in the insurance industry as “war risks”. The Minister may undertake to indemnify all aviation industry participants, or may specify that an undertaking applies only to specific participants or classes of participant or applies only in specific circumstances. The Act also requires that the Minister, at least once every two years, assess whether it is feasible for aviation industry participants to obtain insurance coverage for events or other similar coverage, and that the Minister report regularly to Parliament on his or her activities under the Act. Part 1 also makes consequential amendments to other Acts.

Part 2 amends the Aeronautics Act to provide certain persons with powers to investigate aviation accidents or incidents involving civilians and aircraft or aeronautical installations operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force. It also establishes privilege in respect of on-board recordings, communication records and certain statements, and permits, among other things, access to an on-board recording if certain criteria are met. Finally, it makes consequential amendments to other Acts.

Part 3 amends the Canada Marine Act in relation to the effective day of the appointment of a director of a port authority.

Part 4 amends the Marine Liability Act to implement the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010. Among other things, it gives force of law to many provisions of the Convention, clarifies the liability of the Ship-source Oil Pollution Fund with respect to the Convention and confers powers, duties and functions on the Fund’s Administrator.

Part 5 amends the Canada Shipping Act, 2001 to introduce new requirements for operators of oil handling facilities, including the requirement to notify the Minister of their operations and to submit plans to the Minister. It extends civil and criminal immunity to the agents or mandataries of response organizations engaged in response operations. It also introduces new enforcement measures for Part 8 of the Act, including by applying the administrative monetary penalties regime contained in Part 11 of that Act to Part 8.

Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca

TABLE OF PROVISIONS

AN ACT TO ENACT THE AVIATION INDUSTRY INDEMNITY ACT, TO AMEND THE AERONAUTICS ACT, THE CANADA MARINE ACT, THE MARINE LIABILITY ACT AND THE CANADA SHIPPING ACT, 2001 AND TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

SHORT TITLE

1. Safeguarding Canada’s Seas and Skies Act

PART 1

AVIATION INDUSTRY INDEMNITY ACT

Enactment of Act

2. Enactment

Consequential Amendments

3-8. Marine and Aviation War Risks Act

9. References

PART 2

AERONAUTICS ACT

Amendments to the Act

10-20. Amendments

Consequential Amendments

21. Access to Information Act

22. National Defence Act

23. Canadian Transportation Accident Investigation and Safety Board Act

Transitional Provisions

24. Existing investigations — military-civilian occurrences

25. Existing military investigations

Coming into Force

26. Sixty days after royal assent

PART 3

CANADA MARINE ACT

27. Amendment

PART 4

MARINE LIABILITY ACT

Amendments to the Act

28-56. Amendments

Coming into Force

57. Order in council

PART 5

CANADA SHIPPING ACT, 2001

Amendments to the Act

58-77. Amendments

Consequential Amendment to the Coasting Trade Act

78. Amendment

Coming into Force

79. Order in council

SCHEDULE

SCHEDULE 9

1st Session, 41st Parliament,

60-61-62 Elizabeth II, 2011-2012-2013

house of commons of canada

BILL C-57

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

SHORT TITLE

Short title

1. This Act may be cited as the Safeguarding Canada’s Seas and Skies Act.

PART 1

AVIATION INDUSTRY INDEMNITY ACT

Enactment of Act

Enactment

2. The Aviation Industry Indemnity Act is enacted as follows:

An Act respecting the indemnity of certain aviation industry participants for certain events

SHORT TITLE

Short title

1. This Act may be cited as the Aviation Industry Indemnity Act.

INTERPRETATION

Definitions

2. The following definitions apply in this Act.

“airport”
« aéroport »

“airport” has the same meaning as in subsection 3(1) of the Aeronautics Act.

“aviation industry participant”
« participant de l’industrie aérienne »

“aviation industry participant” means

(a) an air carrier, as defined in subsection 3(1) of the Aeronautics Act, that is a Canadian, as defined in subsection 55(1) of the Canada Transportation Act;

(b) NAV CANADA, a corporation incorporated on May 26, 1995 under Part II of the Canada Corporations Act;

(d) a supplier of goods or services that directly support the operation of aircraft from an airport, including with respect to

(i) the preparation of an aircraft for departure or on its arrival, including maintenance and cleaning of the aircraft and the loading and unloading of passengers, baggage and cargo,

(ii) freight forwarding,

(iii) air navigation, or

(iv) airport security services; or

(e) an entity that is prescribed by regulation or a member of a class of entity that is prescribed by regulation.

“event”
« événement »

“event” means

(a) an act of unlawful interference with an aircraft, airport or air navigation facility, including an act of terrorism; or

(b) an act or omission in the course of armed conflict, war, invasion, hostilities, civil war, revolution, rebellion, insurrection, an application of martial law, a usurpation or attempted usurpation of power, a civil commotion or a riot.

“Minister”
« ministre »

“Minister” means the Minister of Transport.

UNDERTAKING

Undertaking by Minister

3. (1) The Minister may, in writing, undertake to indemnify one or more aviation industry participants — or one or more classes of aviation industry participant — against their loss or damage, or liability for loss or damage, that is caused by an event.

Limitation

(2) The undertaking to indemnify is limited to

(a) loss, damage or liability, or any portion of it, that is not insured or otherwise indemnified; and

(b) loss, damage or liability that is not solely with respect to a loss of income.

Terms

(3) The Minister may attach terms to an undertaking, including terms that

(a) specify the event or class of event that is covered by the undertaking or that is excluded from coverage;

(b) specify the activity or class of activity in which an aviation industry participant engages that is covered by the undertaking or that is excluded from coverage;

(d) establish the maximum amount of indemnification, or the method to determine that amount, that may be paid out to an aviation industry participant per event;

(e) require that an aviation industry participant obtain a specified minimum amount of insurance coverage for events; and

(f) require that an aviation industry participant enter, at the Minister’s request, into an agreement with the Minister respecting the conduct or settlement of any proceedings to which the participant is a party that are related to loss, damage or liability covered by the undertaking.

Different terms

(4) In attaching terms to an undertaking, the Minister may distinguish among aviation industry participants, including among aviation industry participants of the same class, and may distinguish among classes of aviation industry participants.

Incorporation by reference

(5) An undertaking may incorporate any material by reference, regardless of its source, as it exists on a particular date.

No delegation

(6) The Minister must personally exercise the powers that are set out in this section.

Statutory Instruments Act

4. (1) The Statutory Instruments Act does not apply to an undertaking.

Publication

(2) The Minister must cause an undertaking, an amended undertaking or a notice of revocation of an undertaking to be published in Part I of the Canada Gazette within 23 days after the issuance, amendment or revocation.

Request for information

5. At any time after the Minister issues an undertaking, he or she may request that aviation industry participants who are covered by the undertaking provide him or her with any information that he or she specifies, including with respect to their eligibility and their existing level of insurance coverage for events covered by the undertaking.

CLAIM FOR INDEMNIFICATION

Notice of potential claim

6. (1) An aviation industry participant must provide the Minister with a written notice of a potential claim within two years after the day on which the event that could give rise to a claim occurred.

Information to be provided

(2) The aviation industry participant must provide the Minister with any additional information that the Minister considers necessary in the circumstances.

Claim and indemnification

7. (1) After an aviation industry participant submits a written claim for indemnification under an undertaking, the Minister must review the claim and — if a notice was provided in accordance with section 6 and the Minister determines that the claim is eligible for indemnification under the undertaking as it read on the day on which the event that gave rise to the claim occurred — indemnify the participant accordingly.

Further information

(2) The aviation industry participant must provide the Minister with any additional information that the Minister considers necessary to determine if the claim is eligible for indemnification.

Deeming — single event

(3) If the Minister considers that two or more events are directly connected by any factor or factors, including timing, cause or the parties involved, he or she may deem the events to be a single event.

Reliance on court or tribunal

(4) The Minister may, in determining if a claim is eligible for indemnification, rely on a final determination, not subject to any appeal, of a court or other tribunal, in or outside Canada.

Fault of aviation industry participant

(5) Despite subsection (1), the Minister is not required to indemnify an aviation industry participant if the Minister is of the opinion that the loss, damage or liability claimed is principally the fault of the aviation industry participant.

For greater certainty

(6) For greater certainty, the Minister’s determination of whether the claim is eligible for indemnification includes a determination of the amount, if any, of the indemnification.

Consolidated Revenue Fund

8. Any amount payable under an undertaking is to be paid out of the Consolidated Revenue Fund.

Subrogation

9. (1) Her Majesty is subrogated, to the extent of a payment under an undertaking to an aviation industry participant, to all of the participant’s rights in respect of the loss, damage or liability for which the payment was made.

Action

(2) Her Majesty may maintain an action, in the aviation industry participant’s name or in the name of Her Majesty, against any person to enforce those rights.

ASSESSMENT AND REPORT

Assessment

10. The Minister must, at least once every two years, assess whether it is feasible for aviation industry participants to obtain insurance coverage for events or other similar coverage.

Report

11. (1) The Minister must prepare a report on his or her activities under this Act within

(a) 90 days after the day on which he or she issued, amended or revoked an undertaking; and

(b) two years after the day on which a report was last tabled, if he or she has not, within that period, issued, amended or revoked an undertaking.

Tabling in Parliament

(2) The Minister must cause each report to be tabled in each House of Parliament within the first 15 days on which the House is sitting after the report is prepared.

REGULATIONS

Governor in Council

12. The Governor in Council may, on the Minister’s recommendation, make regulations for the purpose of this Act, including regulations

(a) prescribing an entity or class of entity for the purpose of the definition “aviation industry participant” in section 2; and

(b) respecting the circumstances in which an undertaking may cover only one aviation industry participant.

Consequential Amendments

R.S.C. 1970, c. W-3

Marine and Aviation War Risks Act

3. The long title of the Marine and Aviation War Risks Act is replaced by the following:

An Act respecting marine war risks insurance and reinsurance agreements

4. Section 1 of the Act is replaced by the following:

Short title

1. This Act may be cited as the Marine War Risks Act.

5. (1) The definition “aircraft” in section 2 of the Act is repealed.

(2) The definition “Account” in section 2 of the Act is replaced by the following:

“Account”
« compte »

“Account” means the Marine War Risks Insurance Account established under section 5;

6. Section 3 of the Act is replaced by the following:

Insurance and reinsurance agreements

3. The Minister, for the purpose of securing that ships are not laid up and that commerce is not interrupted by reason of lack of insurance facilities, may enter into an agreement, in the form and containing the terms and conditions that may be prescribed by the regulations or otherwise approved by the Governor in Council, with any person or association of persons for the insurance or reinsurance by the Minister against any or all war risks of vessels or cargo.

7. Paragraph 4(c) of the Act is replaced by the following:

(c) respecting the designation of countries of registry for the purposes of paragraph (c) of the definition “vessel” in section 2.

8. The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following:

Marine War Risks Insurance Account

5. (1) There shall be established in the accounts of Canada an account to be known as the Marine War Risks Insurance Account to which shall be credited

References

Reference replaced — Act

9. (1) Every reference to the Marine and Aviation War Risks Act is replaced by a reference to the Marine War Risks Act in any Act of Parliament other than the Marine War Risks Act and in any instrument made under an Act of Parliament or by or under the authority of the Governor in Council.

Reference replaced — Account

(2) Every reference to the Marine and Aviation War Risks Insurance Account is replaced by a reference to the Marine War Risks Insurance Account in any Act of Parliament other than the Marine War Risks Act and in any instrument made under an Act of Parliament or by or under the authority of the Governor in Council.

PART 2

R.S., c. A-2

AERONAUTICS ACT

Amendments to the Act

R.S., c. 33 (1st Supp.), s. 1

10. (1) The definition “Minister” in subsection 3(1) of the Aeronautics Act is replaced by the following:

“Minister”
« ministre »

“Minister” means

(a) subject to paragraph (b), the Minister of Transport or any other Minister that is designated by the Governor in Council as the Minister for the purposes of this Act, and

(b) the Minister of National Defence — or, under the direction of the Minister of National Defence, the Chief of the Defence Staff appointed under the National Defence Act — with respect to any matter relating to defence, including any matter relating to any of the following:

(i) military personnel, a military aeronautical product, a military aerodrome or military equipment of Canada or a foreign state, or a military facility of Canada or a foreign state relating to aeronautics, and

(ii) a service relating to aeronautics provided by such personnel, by means of such an aeronautical product or such equipment or at such an aerodrome or facility;

R.S., c. 33 (1st Supp.), s. 1

(2) Subsection 3(2) of the Act is replaced by the following:

“Minister” for certain purposes

(2) Despite the definition “Minister” in subsection (1), “Minister”, in relation to any matter referred to in paragraph 4.2(1)(n), 4.9(p), (q) or (r) or 8.7(1)(b), means the Minister of National Defence.

R.S., c. 33 (1st Supp.), s. 1

11. (1) Section 4.2 of the Act is renumbered as subsection 4.2(1).

R.S., c. 33 (1st Supp.), s. 1

(2) Paragraph 4.2(1)(n) of the Act is replaced by the following:

(n) subject to subsection (2), investigate matters relating to aviation safety; and

(3) Section 4.2 of the Act is amended by adding the following after subsection (1):

Exception — investigations of military-civilian occurrences

(2) Investigations of military-civilian occurrences, as defined in Part II, shall be carried out in accordance with that Part by the Airworthiness Investigative Authority, designated by the Minister under section 12.

12. The Act is amended by adding the following after section 4.3:

Authorization by authorized person

4.31 Any person whom the Minister of National Defence has authorized to exercise or perform powers, duties or functions relating to airworthiness may, in accordance with the authorization, authorize another person under their authority to exercise or perform any of those powers, duties or functions.

13. The Act is amended by adding the following after section 5.9:

Exemption by Minister of National Defence

6. (1) With respect to any matter relating to defence, the Minister of National Defence or an officer of the Department of National Defence or of the Canadian Forces who is authorized by the Minister may, on any terms that the Minister or officer, as the case may be, considers necessary, exempt by order any person, aeronautical product, aerodrome, facility or service, or any class of persons, aeronautical products, aerodromes, facilities or services, from the application of any regulation, order or security measure made under this Part if the exemption, in the opinion of the Minister or officer, as the case may be, is in the public interest and is not likely to adversely affect aviation safety or security.

Exemption from Statutory Instruments Act

(2) An order made under subsection (1) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.

14. The Act is amended by adding the following after section 6.2:

Certificate

6.21 A certificate purporting to be signed by the Minister of National Defence or the Chief of the Defence Staff and stating that a notice containing the regulation or notice referred to in paragraph 6.2(1)(a) was given to persons likely to be affected by it is, in the absence of evidence to the contrary, proof that notice was given to those persons.

R.S., c. 33 (1st Supp.), s. 1; 1989, c. 3, s. 39

15. Section 6.3 of the Act and the heading before it are repealed.

1989, c. 3, s. 40

16. Section 6.4 of the Act is repealed.

2001, c. 29, s. 34

17. Section 6.7 of the Act is replaced by the following:

Non-application of certain provisions

6.7 Sections 6.71 to 7.21 do not apply to any military personnel of Canada or a foreign state acting in the course of their duties in relation to a Canadian aviation document issued in respect of a military aeronautical product, a military aerodrome, military equipment, a military facility relating to aeronautics or a service relating to aeronautics provided by means of such an aeronautical product or such equipment or at such an aerodrome or facility.

18. Section 8.7 of the Act is amended by adding the following after subsection (1):

Matters relating to defence

(1.01) The Minister of Transport may exercise the powers set out in subsection (1) with regard to any matter relating to defence with the authorization of the Minister of National Defence.

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

PART II

MILITARY INVESTIGATIONS INVOLVING CIVILIANS

Interpretation

Definitions

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

“Authority”
« directeur »

“Authority” means the Airworthiness Investigative Authority designated under subsection 12(1).

“civilian”
« civil »

“civilian” means a person who is not subject to the Code of Service Discipline set out in Part III of the National Defence Act.

“department”
« ministère »

“department” means

(a) any department of the Government of Canada, including the minister responsible for it and any person acting on behalf of that minister;

(b) any body listed in the schedule to the Canadian Transportation Accident Investigation and Safety Board Act; and

“military-civilian occurrence”
« accident militaro-civil »

“military-civilian occurrence” means

(a) any accident or incident involving

(i) an aircraft operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force, or an installation operated by or on behalf of any of the above that is designed or used for the manufacture of an aircraft or other aeronautical product, or that is being used for the operation or maintenance of an aircraft or other aeronautical product, and

(ii) a civilian; or

(b) any situation or condition that the Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a).

“visiting force”
« force étrangère présente au Canada »

“visiting force” has the same meaning as in section 2 of the Visiting Forces Act.

Application

(2) This section and sections 11 to 24.7 apply in respect of military-civilian occurrences

(a) in or over Canada;

(b) in or over any place that is under Canadian air traffic control; and

(i) Canada is requested to investigate the occurrence by an appropriate authority,

(ii) the civilians involved are employed in that place by the Department of National Defence or by the Canadian Forces, or

(iii) the civilians involved are in Canada.

Authorization by Minister

Power

11. The Minister may authorize any person or class of persons to exercise or perform, subject to any restrictions or conditions that the Minister specifies, any of the powers, duties or functions of the Minister under this Part.

Airworthiness Investigative Authority

12. (1) The Minister shall designate from among the members of the Canadian Forces or the employees of the Department of National Defence an individual to be the Airworthiness Investigative Authority, who is to be responsible for advancing aviation safety by

(a) investigating military-civilian occurrences, in order to find their causes and contributing factors;

(b) identifying safety deficiencies as evidenced by military-civilian occurrences;

(d) providing reports to the Minister on the investigations and the findings in relation to them.

Restriction

(2) In making findings in an investigation of a military-civilian occurrence, it is not the Authority’s function to assign fault or determine civil or criminal liability, but the Authority shall not refrain from making a full report merely because fault or liability might be inferred from the Authority’s findings.

Restriction

(3) No finding of the Authority may be construed as assigning fault or determining civil or criminal liability.

Findings not binding

(4) The Authority’s findings are not binding on the parties to any legal, disciplinary or other proceedings.

Investigations of Military-Civilian Occurrences

Investigations

Investigators

13. (1) The Authority may act as an investigator under this Part with respect to a military-civilian occurrence, and may designate as an investigator to investigate such an occurrence in accordance with this Part on the Authority’s behalf any person, or member of a class of persons, that the Authority considers qualified.

Certificate

(2) The Authority shall give a designated investigator a certificate of designation specifying the terms of their designation.

Report

(3) A designated investigator shall report to the Authority with respect to the investigation of a military-civilian occurrence.

Definitions

14. (1) The following definitions apply in this section.

“information”
« renseignement »

“information” includes a record regardless of its form and a copy of a record.

“place”
« lieu »

“place” includes an aircraft, any premises and any building or other structure erected on those premises.

Powers of investigators

(2) If an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the investigator may, subject to subsection (3), enter and search that place for such a thing, and seize any such thing that is found in the course of that search, including an aircraft or part of one.

Conditions for exercise of powers

(3) An investigator shall not exercise the powers referred to in subsection (2) in relation to a particular place without the consent of the person apparently in charge of that place unless

(a) those powers are exercised under the authority of a warrant; or

(b) by reason of exigent circumstances, it would not be practical for the investigator to obtain a warrant.

Warrant

(4) If a justice of the peace is satisfied by information on oath that an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the justice may, on ex parte application, sign and issue a warrant authorizing the investigator to enter and search that place for such a thing and to seize any such thing that is found in the course of that search.

Warrants may be obtained by telephone, etc.

(5) The procedure set out in section 487.1 of the Criminal Code applies in relation to the obtaining of warrants under this section, subject to regulations made under paragraph 24.5(1)(g).

Power to test things seized, etc.

(6) If any thing is seized by an investigator under subsection (2), the investigator

(a) may, subject to paragraph (b), cause to be conducted on the thing any tests, including tests to destruction, that are necessary for the purposes of the investigation;

(b) shall, to the extent that it is practical and safe to do so without unreasonably impeding the progress of the investigation,

(i) take all reasonable measures to invite the owner of the thing, and any person who appears on reasonable grounds to be entitled to it, to be present at such tests, and

(ii) allow them to be present at those tests; and

(c) subject to the need to conduct such tests, shall cause the thing to be preserved pending its return under section 15.

Power to prohibit or limit access

(7) An investigator may, in the course of an investigation of a military-civilian occurrence, and for the purposes of preserving and protecting any thing involved or likely to have been involved, whether or not the thing has been seized under this section, prohibit or limit access to the area immediately surrounding the place at which the thing is located for any period that is necessary for the purposes of the investigation.

Disruption to be minimized

(8) In exercising the power conferred by subsection (7), an investigator shall have regard to the desirability of minimizing any resulting disruption to transportation services.

Prohibition

(9) No person shall knowingly enter an area in contravention of a prohibition or limitation of access under subsection (7).

Additional powers of investigators

(10) An investigator may do any of the following, on notice in writing to the person concerned, if their belief is based on reasonable grounds:

(a) if the investigator believes that a person has information relevant to an investigation,

(i) require the person to produce the information to the investigator or to attend before the investigator and give a statement referred to in section 24.1, under oath or solemn affirmation if required by the investigator, and

(ii) make any copies of and take any extracts from the information that the investigator considers necessary for the purposes of the investigation;

(b) require a person who is directly or indirectly involved in the operation of an aircraft to submit to a medical examination, if the investigator believes that the examination is or might be relevant to the investigation;

(c) require a physician or health practitioner to provide information concerning a patient to the investigator, if the investigator believes that the information is or might be relevant to the investigation; or

(d) require the person who has custody of the body of a deceased person or other human remains to permit the performance of an autopsy on the body or other medical examination on the remains, and cause it to be performed, if the investigator believes that the autopsy or other medical examination is or might be relevant to the investigation.

Offence — paragraph (10)(a), (c) or (d)

(11) No person shall refuse or fail to produce information to an investigator, or to attend before an investigator and give a statement, in accordance with a requirement imposed under paragraph (10)(a), to provide information in accordance with a requirement imposed under paragraph (10)(c) or to make the body of a deceased person or other human remains available for the performance of an autopsy or other medical examination in accordance with a requirement imposed under paragraph (10)(d).

Offence — paragraph (10)(b)

(12) No person shall refuse or fail to submit to a medical examination in accordance with a requirement imposed under paragraph (10)(b), but information obtained as a result of such an examination is privileged and, subject to the Authority’s power to make any use of it that the Authority considers necessary in the interests of aviation safety, no person shall knowingly communicate it or permit it to be communicated to any person.

Legal proceedings

(13) No person is to be required to produce information referred to in subsection (12) or to give evidence relating to it in any legal, disciplinary or other proceedings.

Certificate to be produced

(14) Before acting under this section, an investigator shall, on request, produce their certificate of designation to any person in relation to whom the investigator acts.

Meaning of medical examination

(15) The requirement under paragraph (10)(b) that a person submit to a medical examination does not require the person to submit to any procedure involving surgery, perforation of the skin or any external tissue or the entry into the body of any drug or foreign substance.

Use of force

(16) In executing a warrant under this section, an investigator shall not use force unless the investigator is accompanied by a peace officer and the use of force is specifically authorized in the warrant.

Failure to produce document, etc.

(17) If an investigator has required a person to do something under subsection (10) and the person has refused or failed to do as required, the investigator may make an application to the Federal Court or a superior court of a province setting out the facts, and the court may inquire into the matter and, after giving the person an opportunity to comply with the requirement, take steps for their punishment as if they had been guilty of contempt of the court, or may make any other order that it considers appropriate.

Return of seized property

15. (1) Anything seized under section 14 — except on-board recordings as defined in subsection 22(1) — shall, as soon as possible after it has served the purpose for which it was seized, be returned to the owner or the person who appears on reasonable grounds to be entitled to it, or to the person from whom it was seized, unless

(a) the owner or the person who appears on reasonable grounds to be entitled to it consents otherwise in writing; or

(b) a court of competent jurisdiction orders otherwise.

Application for return

(2) A person from whom anything was seized under section 14 — except on-board recordings as defined in subsection 22(1) — or the owner or any other person who appears on reasonable grounds to be entitled to it may apply to a court of competent jurisdiction for an order that the seized thing be returned to them.

Order for return

(3) If, on an application under subsection (2), the court is satisfied that the seized thing has served the purpose for which it was seized or should, in the interests of justice, be returned to the applicant, the court may grant the application and order the seized thing to be returned to the applicant, subject to any terms that appear necessary or desirable to ensure that the thing is safeguarded and preserved for any purpose for which it might subsequently be required by the Authority under this Act.

Exception

(4) This section does not apply in respect of anything seized and tested to destruction in accordance with subsection 14(6).

Miscellaneous Provisions

Notification of Authority

16. (1) If a department is notified of a military-civilian occurrence, the department shall

(a) immediately provide the Authority with particulars of the occurrence; and

(b) as soon as feasible after complying with paragraph (a), advise the Authority of any investigation that it plans to conduct and of any remedial measures that it plans to take.

Investigator as observer

(2) An investigator authorized by the Authority may attend as an observer at an investigation conducted by the department or during the taking of remedial measures by the department following a military-civilian occurrence.

Authority may review and comment

(3) Subject to any other Act or law, the Authority shall, on request, be provided with, and may review and comment on, any interim or final report prepared in respect of an investigation conducted by the department.

Notification by Authority

17. (1) If the Authority is notified of a military-civilian occurrence, the Authority shall

(a) immediately provide particulars of the occurrence to any minister responsible for a department that has a direct interest in the occurrence; and

(b) as soon as feasible after complying with paragraph (a), advise the ministers referred to in paragraph (a) of any investigation that the Authority plans to conduct and of its scope.

Observers

(2) Subject to any conditions that the Authority imposes, a person may attend as an observer at an investigation of a military-civilian occurrence conducted by the Authority if the person

(a) is designated as an observer by the minister responsible for a department that has a direct interest in the subject matter of the investigation;

(b) has observer status or is an accredited representative or an adviser to an accredited representative, under an international agreement or convention relating to transportation to which Canada is a party; or

(c) is invited by the Authority to attend as an observer because, in the Authority’s opinion, the person has a direct interest in the subject matter of the investigation and is likely to contribute to achieving its object.

Observer may be removed

(3) The Authority may remove an observer from an investigation if the observer contravenes a condition imposed by the Authority or if, in the Authority’s opinion, the observer’s participation is likely to create a situation of conflict of interest that will impede the conduct of the investigation.

Report to the Minister

18. (1) On completion of an investigation, the Authority shall provide a report to the Minister on the Authority’s findings, including any safety deficiencies that the Authority has identified and any recommendations relating to aviation safety that the Authority considers appropriate.

Representations on draft report

(2) Before providing the report to the Minister, the Authority shall, on a confidential basis, send a copy of the draft report on the investigation’s findings and any safety deficiencies identified to each minister responsible for a department that has a direct interest in the findings, as well as to any other person who, in the Authority’s opinion, has a direct interest in the findings, and shall give that minister or other person a reasonable opportunity to make representations to the Authority with respect to the draft report before the final report is prepared.

Confidentiality of draft report

(3) No person shall communicate or use the draft report, or permit its communication or use, for any purpose — other than the taking of remedial measures — that is not strictly necessary to the study of the draft report or to the making of representations with respect to it.

Manner of dealing with representations

(4) The Authority shall

(a) receive representations made under subsection (2) in any manner the Authority considers appropriate;

(b) keep a record of those representations;

(d) notify in writing each of the persons who made those representations, indicating how the Authority has disposed of the representations made by that person.

Protection of representations

(5) A representation is privileged, except for one made by a minister responsible for a department that has a direct interest in the findings of the investigation. Subject to any other provisions of this Part or to a written authorization from the author of a representation, no person, including any person to whom access is provided under this section, shall knowingly communicate it or permit it to be communicated to any person.

Use by Authority

(6) The Authority may use representations as the Authority considers necessary in the interests of aviation safety.

Making representations available to coroner

(7) If requested to do so by a coroner conducting an investigation into any circumstances in respect of which representations were made to the Authority, the Authority shall make them available to the coroner.

Prohibition of use

(8) Except for use by a coroner for the purpose of an investigation, no person is to use representations in any legal, disciplinary or other proceedings.

Notification of findings and recommendations

(9) The Authority shall

(a) during an investigation of a military-civilian occurrence, immediately notify in writing any minister or person who, in the Authority’s opinion, has a direct interest in the investigation’s findings, of any of his or her findings and recommendations, whether interim or final, that, in the Authority’s opinion, require urgent action; and

(b) on completion of the investigation, notify in writing any minister or person who, in the Authority’s opinion, has a direct interest in the investigation’s findings, of his or her findings as to the causes and contributing factors of the military-civilian occurrence, any safety deficiencies he or she has identified and any recommendations resulting from his or her findings.

Minister to reply to Authority

(10) A minister, other than the Minister of National Defence, who is notified under subsection (9) of any findings and recommendations on matters relating to defence shall, within 90 days after the day on which they were notified,

(a) advise the Minister and the Authority in writing of any action taken or proposed to be taken in response to those findings and recommendations; or

(b) provide written reasons to the Minister and the Authority if no action will be taken or if the action to be taken differs from the action that was recommended.

Extension of time

(11) If the Authority is satisfied that a minister is unable to reply within the period referred to in subsection (10), the period may be extended as the Authority considers necessary.

Interim report

19. (1) The Authority shall, on a confidential basis, provide an interim report on the progress and findings of an investigation

(a) to any minister responsible for a department that has a direct interest in the subject matter of the investigation, on written request made in respect of that investigation; and

(b) to any coroner investigating the military-civilian occurrence, if it involved a death and significant progress has been made in the investigation.

Limited purpose only

(2) A person, other than a minister, who is provided with an interim report under subsection (1) shall not use the report, or permit its use, for any purpose not strictly necessary to its examination.

Power to reconsider

20. (1) The Authority may, at any time, reconsider any findings and recommendations made on the basis of an investigation of a military-civilian occurrence under this Part.

Duty to reconsider

(2) The Authority shall reconsider the findings and recommendations made on the basis of an investigation under this Part if, in his or her opinion, new material facts appear.

Power to authorize

21. (1) Subject to subsection (2), the Authority may authorize any person, subject to any limitations specified in the authorization, to exercise or perform any of the powers, duties or functions conferred or imposed on the Authority under this Part, other than the power of authorization under this subsection.

Revocation

(2) The authorization may be revoked by the Authority in writing.

Privilege

Definition of “on-board recording”

22. (1) In this section and in section 23, “on-board recording” means the whole or any part of either a recording of voice communications originating from an aircraft, or received on or in the flight deck of an aircraft, or a video recording of the activities of the operating personnel of an aircraft, that is made, using recording equipment that is intended not to be controlled by the operating personnel, on the flight deck of the aircraft, and includes a transcript or substantial summary of such a recording.

Privilege for on-board recordings

(2) Every on-board recording in respect of an aircraft is privileged whether or not that aircraft has been involved in a military-civilian occurrence and, except as provided by this section and section 23, no person, including any person to whom access is provided under those sections, shall knowingly communicate an on-board recording or permit one to be communicated to any person.

Legal proceedings

(3) Except as provided by this section and section 23, no person is to be required to produce an on-board recording or to give evidence relating to one in any legal, discipli-nary or other proceedings.

Use authorized by Authority

(4) The Authority may, subject to any restrictions or conditions that he or she specifies, authorize any person or class of persons to make use of any on-board recording in the interests of aviation safety.

Access by investigator

(5) Any on-board recording that relates to a military-civilian occurrence being investigated under this Part shall be released to an investigator who requests it for the purposes of the investigation.

Use by Authority

(6) The Authority may make any use that he or she considers necessary in the interests of aviation safety of any on-board recording obtained by an investigator under this Part but, subject to subsections (7) and 23(1), (4) and (6), shall not knowingly communicate or permit to be communicated to anyone any portion of it that is unrelated to the causes or contributing factors of the military-civilian occurrence under investigation or to the identification of safety deficiencies.

Access by coroners and other investigators

(7) The Authority shall make available any on-board recording obtained in the course of an investigation of a military-civilian occurrence

(a) to a coroner who requests access to it for the purpose of an investigation that the coroner is conducting; or

(b) to any person carrying out a coordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act.

Power of court or coroner

(8) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall

(a) cause notice of the request to be given to the Authority, if the Authority is not a party to the proceedings;

(b) examine the on-board recording in camera and give the Authority a reasonable opportunity to make representations with respect to it; and

(c) if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section, order the production and discovery of the on-board recording, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to it.

Restriction

(9) An on-board recording is not to be used against any of the following persons in disciplinary proceedings, in proceedings relating to their capacity or competence to perform their functions, or in legal or other proceedings: air traffic controllers, aircraft crew members, airport vehicle operators, flight service station specialists and persons who relay messages respecting air traffic control or related matters.

Definition of “court”

(10) For the purposes of subsection (8), “court” includes any person appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.

On-board recording — board of inquiry

23. (1) The Authority shall make available to a board of inquiry convened under section 45 of the National Defence Act any on-board recording in respect of an aircraft, whether or not that aircraft has been involved in a military-civilian occurrence, if

(a) the president of that board makes a written request, together with reasons, for access to the on-board recording; and

(b) after considering the reasons, the Authority determines that

(i) the aircraft was operated by or on behalf of the Canadian Forces when the on-board recording was made, and

(ii) the public interest in the proper administration of the Canadian Forces outweighs in importance the privilege attached to the on-board recording by virtue of section 22.

Notice of refusal

(2) If the Authority refuses the request, he or she shall give written notice of the refusal to the president and reasons for it.

Request to Minister

(3) On receipt of the notice of refusal, the president may make a written request to the Minister for access to the on-board recording. If the president makes such a request, he or she shall include the written reasons originally submitted to the Authority, along with the Authority’s reasons for refusal, and may include additional written representations, a copy of which is to be provided to the Authority.

Determination by Authority — additional representations

(4) The Authority shall, on receipt of any additional representations, consider them and,

(a) if he or she determines that the representations raise a new issue and makes the determinations listed in paragraph (1)(b), he or she shall so notify the Minister and make available the on-board recording to the board of inquiry; or

(b) if he or she determines that the representations do not raise a new issue or determines that the representations do raise a new issue but does not make the determinations listed in paragraph (1)(b), he or she shall not make available the on-board recording to the board of inquiry, shall give written notice to the Minister of the determination and the reasons for it, and shall provide a copy to the president.

Consideration by Minister

(5) On receipt of a request under subsection (3) without any additional written representations, the Minister shall consider the reasons included with the president’s request. If a request under subsection (3) includes additional written representations, the Minister shall, on receipt of notice of the Authority’s refusal under paragraph (4)(b) to make available the on-board recording to the board of inquiry, consider the reasons included with the president’s request together with the additional written representations and the Authority’s written reasons for the refusal in response to those representations. The Minister may, in consideration of the request, examine the on-board recording in camera.

Determination by Minister

(6) The Minister shall

(a) direct the Authority to make the on-board recording available to the board of inquiry, subject to any restrictions or conditions that the Minister considers appropriate, if the Minister makes the determinations listed in paragraph (1)(b); or

(b) so notify the president and the Authority if the Minister does not make the determinations listed in paragraph (1)(b).

Decision final

(7) The Minister’s decision is final and binding and not subject to appeal or review by any court.

Exception

(8) Despite subsection 22(9), an on-board recording that is made available to a board of inquiry under this section may be used in other proceedings relating to the capacity or competence of any person who is subject to the Code of Service Discipline set out in Part III of the National Defence Act.

Definition of “communication record”

24. (1) In this section, “communication record” means the whole or any part of any record, recording, copy, transcript or substantial summary of any type of communications respecting air traffic control or related matters that take place between any of the following persons: air traffic controllers, aircraft crew members, airport vehicle operators, flight serv-ice station specialists and persons who relay messages respecting air traffic control or related matters.

Restriction

(2) A communication record obtained in the course of an investigation of a military-civilian occurrence under this Part is not to be used against a member of the Canadian Forces or any person referred to in subsection (1) in any legal proceedings or, subject to any applicable collective agreement, in any disciplinary proceedings.

Definition of “statement”

24.1 (1) For the purposes of this section and section 14, “statement” means

(a) the whole or any part of an oral, written or recorded statement relating to a military-civilian occurrence that is given by the author of the statement to the Authority, an investigator or any person acting for the Authority;

(b) a transcription or substantial summary of a statement referred to in paragraph (a); or

Statement privileged

(2) A statement and the identity of the person who made it are privileged and, except as provided by this Part or as authorized in writing by the person who made the statement, no person, including any person to whom access is provided under this section, shall knowingly communicate a statement or permit it to be communicated to any person, or disclose the identity of the person who made it.

Use by Authority

(3) The Authority may use any statement as he or she considers necessary in the interests of aviation safety.

Access by coroners and other investigators

(4) The Authority shall make statements available

(a) to a coroner who requests access to them for the purpose of an investigation that the coroner is conducting; and

(b) to any person carrying out a coordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act.

Power of court or coroner

(5) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of a statement is contested on the ground that it is privileged, the court or coroner shall

(a) examine the statement in camera; and

(b) if the court or coroner concludes that, in the circumstances of the case, the public interest in the proper administration of justice outweighs in importance the privilege attached to the statement by virtue of this section, order the production and discovery of the statement, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to it.

Restriction

(6) A statement is not to be used against the person who made it in any legal, disciplinary or other proceedings except in a prosecution for perjury or for giving contradictory evidence or a prosecution under section 24.6.

Definition of “court”

(7) For the purposes of subsection (5), “court” includes any person appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.

Reporting of military-civilian occurrences

24.2 (1) The Governor in Council may make regulations for the establishment and administration of systems for the mandatory or voluntary reporting by civilians to the Authority of any of the following:

(a) military-civilian occurrences;

(b) any other accident or incident involving an aircraft or installation referred to in subparagraph (a)(i) of the definition “military-civilian occurrence” in subsection 10(1);

(c) any situation or condition that the Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (b); and

(d) any classes of the occurrences, accidents, incidents, situations or conditions referred to in any of paragraphs (a) to (c) that are specified in the regulations.

Use of reports

(2) The Authority may, subject to this section, use any report made under regulations made under subsection (1) that he or she considers necessary in the interests of aviation safety.

Protection of identity

(3) Regulations made under subsection (1) may provide for the protection of the identity of persons who make a report under those regulations.

Certain information privileged

(4) If a person’s identity is protected by provisions referred to in subsection (3), information that could reasonably be expected to reveal that identity is privileged, and no person shall knowingly communicate it or permit it to be communicated to any person.

Legal proceedings

(5) No person is to be required to produce information referred to in subsection (4) or to give evidence relating to the information in any legal, disciplinary or other proceedings.

Restriction

(6) A report made under a voluntary reporting system established by regulations made under subsection (1) is not to be used against the person who made the report in any legal, disciplinary or other proceedings if the person’s identity is protected by provisions referred to in subsection (3).

Evidence of Authority and of Investigators

Appearance of investigator

24.3 Except for proceedings before and investigations by a coroner, neither the Authority nor an investigator is competent or compellable to appear as a witness in any proceedings unless the court or other person or body before whom the proceedings are conducted so orders for special cause.

Opinions inadmissible

24.4 An opinion of the Authority or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings.

Regulations

24.5 (1) The Governor in Council may make regulations

(a) prescribing the manner of exercising or performing any of the powers, duties and functions of an investigator designated under subsection 13(1);

(b) respecting the keeping and preservation of records, documents and other evidence relating to military-civilian occurrences;

(d) respecting, for the purposes of an investigation of a military-civilian occurrence, the sites of such an occurrence and prescribing rules for their protection;

(e) defining the rights or privileges of persons attending investigations as observers or with observer status;

(f) respecting the tariff of fees and expenses to be paid to any witness attending at an investigation of a military-civilian occurrence, and the conditions under which fees or expenses may be paid to such a witness;

(g) respecting the forms of warrants issued under section 14 and the modifications to be made to section 487.1 of the Criminal Code in its application to section 14; and

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

Publication of proposed regulations

(2) A copy of each regulation that the Governor in Council proposes to make under subsection (1) or section 24.2 shall be published in the Canada Gazette at least 60 days before its proposed effective date, and interested persons shall be given a reasonable opportunity within those 60 days to make representations with respect to it.

Exceptions

(3) Subsection (2) does not apply in respect of a proposed regulation that

(a) has previously been published under that subsection, whether or not it has been changed as a result of representations made under that subsection; or

(b) makes no substantive change to an existing regulation.

Offences

24.6 (1) Every person is guilty of an indictable offence and liable on conviction to a term of imprisonment not exceeding two years, or is guilty of an offence punishable on summary conviction, who

(a) contravenes subsection 14(9), (11) or (12);

(b) without lawful excuse, intentionally resists or otherwise obstructs an investigator in the exercise or performance of powers, duties or functions under this Part;

(c) knowingly gives false or misleading information in any investigation of a military-civilian occurrence under this Part; or

(d) makes a report under section 24.2 that they know to be false or misleading.

Offence

(2) Every person who contravenes a provision of this Part, or of the regulations made under this Part, for which no punishment is specified is guilty of an offence punishable on summary conviction.

Evidence

24.7 (1) Subject to subsections (2) and (3), the following reports and documents are admissible in evidence in any prosecution for an offence under this Part without proof of the signature or official character of the person appearing to have signed the report or certified the document, and are, in the absence of evidence to the contrary, proof of the statements contained in such a report or the contents of such a document:

(a) a report purporting to have been signed by an investigator stating that the investigator has exercised any power under section 14 and stating the results of the exercise of the power; and

(b) a document purporting to have been certified by an investigator as a true copy of or extract from a document produced to the investigator under subsection 14(10).

Notice

(2) No report or document is to be received in evidence under subsection (1) unless the party intending to produce it has, at least seven days before producing it, served on the party against whom it is intended to be produced a notice of that intention, together with a copy of the report or document.

Cross- examination

(3) The party against whom a report or document is produced under subsection (1) may require the attendance, for the purposes of cross-examination, of the person who appears to have signed the report or certified the document as a true copy or extract.

Military Investigations under Part I

Application of certain provisions

24.8 Section 14, subsections 18(1) to (9) and sections 22 to 24.4 apply, with any necessary modifications, in respect of an investigation of an accident or incident relating to aeronautics that the Minister of National Defence has directed the Authority to carry out other than an investigation of a military-civilian occurrence.

1996, c. 10, s. 205(1)

20. (1) The portion of subsection 27(1) of the Act before paragraph (a) is replaced by the following:

Proof of documents

27. (1) In any action or proceeding under this Act, any document purporting to be certified by the Minister of Transport, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency — or, with respect to any matter relating to defence, by the Minister of National Defence or the Chief of the Defence Staff — as a true copy of a document made, given or issued under this Act is, without proof of the signature or of the official character of the person appearing to have signed the document, evidence

1996, c. 10, s. 205(2)

(2) The portion of subsection 27(2) of the Act before paragraph (a) is replaced by the following:

Certificate

(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister of Transport or the Secretary of the Department of Transport — or, with respect to any matter relating to defence, by the Minister of National Defence or the Chief of the Defence Staff — is evidence of the facts stated in it, without proof of the signature or of the official character of the person appearing to have signed the certificate and without further proof of the certificate, if the certificate states that a document, authorization or exemption under this Act

R.S., c. 33 (1st Supp.), s. 4

(3) The portion of subsection 27(2) of the English version of the Act after paragraph (b) is repealed.

Consequential Amendments

R.S., c. A-1

Access to Information Act

21. Schedule II to the Access to Information Act is amended by replacing “subsections 4.79(1) and 6.5(5)” opposite “Aeronautics Act” with “subsections 4.79(1), 6.5(5), 22(2) and 24.2(4)”.

R.S., c. N-5

National Defence Act

22. Section 45 of the National Defence Act is amended by adding the following after subsection (2):

Access to on-board recordings

(3) For greater certainty, a board of inquiry may have access to an on-board recording, as defined in subsection 22(1) of the Aeronautics Act, only if it is made available under that Act.

1989, c. 3

Canadian Transportation Accident Investigation and Safety Board Act

23. Subsection 18(4) of the Canadian Transportation Accident Investigation and Safety Board Act is replaced by the following:

Investigations to be coordinated

(4) If a transportation occurrence referred to in subsection (3) is being investigated by the Board and by the Department of National Defence, the Canadian Forces or a visiting force, the Board and either the Minister of National Defence or the Authority designated under section 12 of the Aeronautics Act shall take all reasonable measures to ensure that the investigations are coordinated.

Transitional Provisions

Existing investigations — military-civilian occurrences

24. (1) On the coming into force of Part II of the Aeronautics Act (referred to in this section as “the Act”), as enacted by section 19 of this Act, that Part applies to any investigation already begun of an accident or incident relating to aeronautics that would have been considered a military-civilian occurrence, as defined in that Part, and the Airworthiness Investigative Authority designated by the Minister of National Defence under section 12 of the Act shall continue the investigation in accordance with that Part.

Completed investigations — military-civilian occurrences

(2) If, on the coming into force of Part II of the Act, an investigation referred to in subsection (1) has been completed but no report on it has been provided to the Minister of National Defence, then the following provisions apply on the coming into force of that Part: subsections 18(1) to (9) of the Act, the provisions of sections 22 to 24.1 of the Act relating to on-board recordings, communication records and statements, as defined in sections 22, 24 and 24.1 of the Act, respectively, and the provisions of section 24.2 of the Act relating to reporting by civilians.

Existing military investigations

25. If, on the coming into force of Part II of the Aeronautics Act (referred to in this section as “the Act”), as enacted by section 19 of this Act, an investigation by or under the authority of the Minister of National Defence of an accident or incident relating to aeronautics that would not have been considered a military-civilian occurrence, as defined in that Part, has already begun, or one has been completed but no report on it has been provided to that Minister, then the following provisions apply on the coming into force of that Part: subsections 18(1) to (9) of the Act, the provisions of sections 22 to 24.1 of the Act relating to on-board recordings, communication records and statements, as defined in sections 22, 24 and 24.1 of the Act, respectively, and the provisions of section 24.2 of the Act relating to reporting by civilians.

Coming into Force

Sixty days after royal assent

26. (1) Subject to subsection (2), this Part comes into force 60 days after the day on which this Act receives royal assent.

Order in council

(2) Subsection 10(2) and section 15 come into force on a day to be fixed by order of the Governor in Council.

PART 3

1998, c. 10

CANADA MARINE ACT

2008, c. 21, s. 10

27. Subsection 14(2.2) of the Canada Marine Act is replaced by the following:

Effective day of appointment

(2.2) A director’s appointment made by a municipality or province takes effect on the day on which notice of the appointment is received by the port authority.

PART 4

2001, c. 6

MARINE LIABILITY ACT

Amendments to the Act

2009, c. 21, s. 11

28. The heading of Part 6 of the Marine Liability Act is replaced by the following:

LIABILITY AND COMPENSATION — OIL AND HAZARDOUS AND NOXIOUS SUBSTANCES

29. (1) The definition “owner” in subsection 47(1) of the English version of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) in relation to the Hazardous and Noxious Substances Convention, has the same meaning as in Article 1 of that Convention.

(2) Subsection 47(1) of the Act is amended by adding the following in alphabetical order:

“Hazardous and Noxious Substances Convention”
« Convention sur les substances nocives et potentiellement dangereuses »

“Hazardous and Noxious Substances Convention” means the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010, concluded at London on April 30, 2010.

“HNS Fund”
« Fonds SNPD »

“HNS Fund” means the International Hazardous and Noxious Substances Fund established by Article 13 of the Hazardous and Noxious Substances Convention.

(3) Subsection 47(2) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and’’ at the end of paragraph (d) and by adding the following after paragraph (d):

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

2009, c. 21, s. 11

(4) Subsection 47(3) of the Act is replaced by the following:

Inconsistency

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

2009, c. 21, s. 11

30. Subsection 54(2) of the French version of the Act is replaced by the following:

Preuve de publication

(2) Dans les trente jours suivant la constitution du fonds de limitation, elle dépose à la Cour d’amirauté les avis publiés.

31. The Act is amended by adding the following after section 74:

Hazardous and Noxious Substances Convention

Force of law

74.01 Articles 1 to 5, 7 to 23, 37 to 41, 45, 48 and 52 of the Hazardous and Noxious Substances Convention — that are set out in Part 1 of Schedule 9 — have the force of law in Canada.

Meaning of “receiver”

74.1 For the purposes of Articles 1, 7, 18, 19 and 21 of the Hazardous and Noxious Substances Convention, “receiver” has the meaning assigned by paragraph 4(a) of Article 1 of that Convention.

32. The Act is amended by adding the following in numerical order:

State Party

74.2 For the purposes of the application of the Hazardous and Noxious Substances Convention, Canada is a State Party.

33. The Act is amended by adding the following in numerical order:

Appropriate authority

74.21 For the purposes of Article 12 of the Hazardous and Noxious Substances Convention, the Minister is the appropriate authority for Canada.

Schedule 9 — limits amendment

74.22 The Governor in Council may, by regulation, amend Part 1 of Schedule 9 to implement an amendment — to the limits of liability that are specified in paragraph 1 of Article 9 or paragraph 5 of Article 14 of the Hazardous and Noxious Substances Convention — that is made in accordance with Article 48 of that Convention.

Amendment to Part 2 of Schedule 9

74.23 The Governor in Council may, by regulation, amend Part 2 of Schedule 9 to add or delete a declaration made by Canada under Article 5 of the Hazardous and Noxious Substances Convention.

Liability for damage and related costs

74.24 The liability of the owner of a ship in relation to preventive measures, for the purposes of the Hazardous and Noxious Substances Convention, also includes

(a) the costs and expenses incurred by the Minister of Fisheries and Oceans, by a response organization as defined in section 165 of the Canada Shipping Act, 2001, by any other person in Canada or by 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 damage caused by hazardous and noxious substances, including measures taken in anticipation of an incident, 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 hazardous and noxious substances, the costs and expenses incurred

(i) by 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) by 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.

Admiralty Court’s jurisdiction — limitation fund

74.25 (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under the Hazardous and Noxious Substances Convention.

Right to assert limitation defence

(2) When a claim is made or apprehended against a person in respect of liability that is limited under the Hazardous and Noxious Substances 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.

Stay of proceedings

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

Admiralty Court’s powers

74.26 (1) When a claim is made or apprehended against a person in respect of liability that is limited under the Hazardous and Noxious Substances 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 37 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.

Admiralty Court may postpone distribution

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

Procedural matters

(3) The Admiralty Court may

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

(b) determine what form of guarantee it considers to be adequate for the purposes of paragraph 3 of Article 9 of the Hazardous and Noxious Substances Convention.

Public notice

74.27 (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.

Proof of notice

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

Court order in case of non-compliance

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

Absence of certificate

74.28 (1) Unless a ship carrying hazardous and noxious substances carries a certificate described in Article 12 of the Hazardous and Noxious Substances Convention issued in accordance with subsection 74.29(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force, 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.

Certificate to be produced on request

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

By whom certificate to be issued

74.29 (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 Hazardous and Noxious Substances 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 Hazardous and Noxious Substances Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.

Issuance of certificate by Minister

(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 Hazardous and Noxious Substances Convention, the Minister shall issue the 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 12 of that 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 74.28(1), or that the contract of insurance or other security will not cover the owner’s liability under the Hazardous and Noxious Substances Convention, the Minister may refuse to issue the certificate.

When Minister may revoke 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 74.28(1), or that the contract of insurance or other security no longer covers the owner’s liability under the Hazardous and Noxious Substances Convention, the Minister may revoke the certificate.

34. The Act is amended by adding the following in numerical order:

Meaning of “associated persons”

74.3 For the purposes of the application of the Hazardous and Noxious Substances 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 6 of Article 16 of that Convention.

35. The Act is amended by adding the following in numerical order:

Legal capacity of HNS Fund

74.31 For the purposes of the rights and obligations referred to in section 74.32, the HNS Fund has the capacity, rights and obligations of a natural person, and the Director of the HNS Fund is its legal representative.

HNS Fund to be party to legal proceedings

74.32 (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 74.24 or Article 7 of the Hazardous and Noxious Substances Convention,

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

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

Method of service on HNS 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 HNS Fund under paragraph (1)(a) may be effected by registered mail.

36. The Act is amended by adding the following in numerical order:

Meaning of “receiver”

74.4 (1) For the purposes of subsection (2), “receiver” has the meaning assigned by paragraph 4(a) of Article 1 of the Hazardous and Noxious Substances Convention.

Obligation

(2) Receivers shall file information returns with the Minister, in accordance with the regulations, respecting quantities of contributing cargo received, except oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention.

Regulations

(3) The Governor in Council may make regulations respecting information returns for the purposes of subsection (2).

Communication to Secretary-General of IMO

(4) The Minister shall communicate to the Secretary-General of the International Maritime Organization, in accordance with Article 45 of the Hazardous and Noxious Substances Convention, the information referred to in that Article.

Communication to Director of HNS Fund

(5) The Minister shall communicate to the Director of the HNS Fund, in accordance with Article 21 of the Hazardous and Noxious Substances Convention, the information referred to in that Article except information that relates to oils described in paragraph 5(a)(i) of Article 1 of that Convention.

Minister’s powers

(6) The Minister may, for the purposes of subsection (2), (4) or (5),

(a) at any reasonable time, enter a place in which he or she has reasonable grounds to believe there are any records, books of account, accounts, vouchers or other documents relating to information referred to in Article 21 or 45 of the Hazardous and Noxious Substances Convention;

(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 Minister 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 Minister.

No obstruction or false statements

(7) No person shall obstruct or hinder the Minister in the exercise of any powers under subsection (6) or knowingly make a false or misleading statement, either orally or in writing, to the Minister while he or she is exercising those powers.

Warrant required to enter dwelling place

(8) A dwelling place may not be entered under subsection (6) unless it is entered with the occupant’s consent or under the authority of a warrant issued under subsection (9).

Authority to issue warrant

(9) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing the Minister 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 (6)(a);

(b) entry to the dwelling place is necessary for the purposes of subsection (2), (4) or (5); and

2009, c. 21, s. 11

37. The portion of section 76 of the English version of the Act before paragraph (a) is replaced by the following:

Geographical application

76. This Division applies in respect of actual or anticipated pollution damage that is not 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,

38. The definition “foreign judgement” in section 80 of the Act is amended by adding “or” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) Hazardous and Noxious Substances Convention within the meaning of subsection 47(1).

2009, c. 21, s. 11

39. (1) Paragraph 90(a) of the Act is replaced by the following:

(a) imposing a fee for the issuance of a certificate under section 56, 74 or 74.29;

2009, c. 21, s. 11

(2) Paragraph 90(c) of the Act is replaced by the following:

(3) Section 90 of the Act is amended by adding the following after paragraph (d):

(d.1) extending the application of the Haz-ardous and Noxious Substances 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;

(4) Section 90 of the Act is amended by striking out “and” at the end of paragraph (g) and by adding the following after paragraph (g):

(g.1) respecting conditions under which certificates may be issued, refused or revoked for the purposes of subsections 74.29(2) to (4); and

40. (1) The definition “owner” in subsection 91(1) of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(b.1) in relation to a ship subject to the Hazardous and Noxious Substances Convention, has the same meaning as in Article 1 of that Convention; and

2009, c. 21, s. 11

(2) Subsection 91(2) of the Act is replaced by the following:

Other definitions

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

2009, c. 21, s. 11

41. (1) The portion of subsection 101(1) of the Act before paragraph (c) is replaced by the following:

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 in relation to oil — except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — for the matters referred to in sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention, if

(a) all reasonable steps have been taken — and those steps have been unsuccessful — to recover payment of compensation from the owner of the ship or from

(i) the International Fund and the Supplementary Fund, in the case of a ship within the meaning of Article I of the Civil Liability Convention, or

(ii) the HNS Fund, in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention;

(b) the owner of the ship is not liable by reason of any of the defences described in subsection 77(3), Article III of the Civil Liability Convention, Article 3 of the Bunk-ers Convention or Article 7 of the Hazardous and Noxious Substances Convention and, in addition, none of the International Fund, the Supplementary Fund and the HNS Fund is liable;

(2) Paragraph 101(1)(c) of the Act is amended by striking out “and” at the end of subparagraph (i) and by adding the following after subparagraph (i):

(i.1) in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention, the owner’s maximum liability under that Convention to the extent that the excess is not recoverable from the HNS Fund, and

(3) Subsection 101(1) of the Act is amended by adding the following after paragraph (e):

(e.1) the owner is financially incapable of meeting their obligations under section 74.24 and Article 7 of the Hazardous and Noxious Substances Convention, to the extent that the obligation is not recoverable from the HNS Fund;

2009, c. 21, s. 11

42. (1) Subsection 102(1) of the Act is replaced by the following:

Action by Administrator

102. (1) If there is an occurrence that gives rise to the liability of an owner of a ship in relation to oil — except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — under section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances 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 Article V of the Civil Liability Convention, Article 6 of the Convention that is defined in section 24 or Article 9 of the Hazardous and Noxious Substances Convention.

(2) Subsection 102(3) of the Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after paragraph (a):

(a.1) in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention, a fund has been constituted under subsection 74.25(2); and

2009, c. 21, s. 11

43. (1) Subsection 103(1) of the Act is replaced by the following:

Claims filed with Administrator

103. (1) Except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, a person who has suffered loss or damage or incurred costs or expenses referred to in section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention in respect of actual or anticipated oil pollution damage may, in addition to any right the person has against the Ship-source Oil Pollution Fund under section 101, file a claim with the Administrator for the loss, damage, costs or expenses.

2009, c. 21, s. 11

(2) Subsection 103(3) of the Act is replaced by the following:

Exception

(3) Subsection (1) does not apply to a response organization referred to in paragraph 51(a), 71(a), 74.24(a) or 77(1)(b) or to a person in a state other than Canada.

2009, c. 21, s. 11

44. Paragraph 104(a) of the Act is replaced by the following:

(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, the Bunkers Convention or the Hazard-ous and Noxious Substances Convention; or

2009, c. 21, s. 11

45. (1) Paragraph 106(3)(b) of the Act is replaced by the following:

(b) the claimant is then precluded from pursuing any rights that they may have had, except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, against any person in respect of matters referred to in sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention in relation to the occurrence to which the offer of compensation relates;

2009, c. 21, s. 11

(2) Paragraph 106(3)(d) of the Act is replaced by the following:

(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, the HNS 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 or the Hazardous and Noxious Substances Convention and may enforce any security provided to or enforceable by the claimant.

2009, c. 21, s. 11

46. The portion of subsection 109(1) of the Act before paragraph (a) is replaced by the following:

Proceedings against owner of ship

109. (1) Except in the case of proceedings relating to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, if a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter relating to oil and referred to in section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention,

2009, c. 21, s. 11

47. The heading before section 112 of the Act is replaced by the following:

Levies to be Paid to the Ship-source Oil Pollution Fund, the International Fund, the Supplementary Fund and the HNS Fund

2009, c. 21, s. 11

48. Subsection 112(1) of the Act is replaced by the following:

Definition of “oil”

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 and it means the oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention.

2009, c. 21, s. 11

49. (1) Subsection 116(1) of the Act is replaced by the following:

Claimants entitled to interest

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, the Supplementary Fund or the HNS 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.

2009, c. 21, s. 11

(2) Paragraphs 116(2)(a) and (b) of the Act are replaced by the following:

(a) if the claim is based on paragraph 77(1)(a), Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention, from the day on which the oil pollution damage occurs;

(b) if the claim is based on section 51, 71 or 74.24, paragraph 77(1)(b) or (c), Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances 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

2009, c. 21, s. 11

50. (1) Subsection 117(1) of the Act is replaced by the following:

Payments by Canada to International Fund and Supplementary Fund

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, 12 and 13 of the Fund Convention and to the Supplementary Fund in accordance with Articles 10 to 13 of the Supplementary Fund Protocol.

(2) Section 117 of the Act is amended by adding the following after subsection (1):

Payments by Canada to HNS Fund

(1.01) The Administrator shall — only in relation to oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention — direct payments to be made out of the Ship-source Oil Pollution Fund to the HNS Fund in accordance with Articles 16 to 20 of that Convention.

(3) Section 117 of the Act is amended by adding the following in numerical order:

Meaning of “person”

(1.1) For the purposes of subsection (1.2), “person” has the same meaning as in Article I of the Civil Liability Convention.

Information returns — contributing oil

(1.2) A person who is required to make contributions under Article 10 of the Fund Convention or Article 10 of the Supplementary Fund Protocol shall file with the Minister or the Administrator, in accordance with the regulations, information returns necessary to enable the Administrator to discharge his or her obligations under subsections 117(1) and (2).

Meaning of “receiver”

(1.3) For the purposes of subsection (1.4), the term “receiver” has the meaning assigned by paragraph 4(a) of Article 1 of the Hazardous and Noxious Substances Convention.

Information returns — hazardous and noxious substances

(1.4) Receivers shall file with the Minister or the Administrator, in accordance with the regulations, information returns in respect of quantities of oils, as described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention, received.

Regulations

(1.5) The Governor in Council may make regulations respecting information returns for the purposes of subsections (1.2) and (1.4).

(4) Section 117 of the Act is amended by adding the following after subsection (2):

Communication to Minister

(2.1) The Administrator shall communicate to the Minister the information referred to in subsection 74.4(4) that relates to oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention and that is necessary to enable the Minister to discharge his or her obligation under that subsection.

Communication to Minister and Director of HNS Fund

(2.2) The Administrator shall communicate to the Minister and the Director of the HNS Fund, in accordance with Article 21 of the Hazardous and Noxious Substances Convention, the information referred to in that Article that relates to oils described in paragraph 5(a)(i) of Article 1 of that Convention.

2009, c. 21, s. 11

(5) Subsection 117(3) of the Act is replaced by the following:

Administrator’s liability

(3) The Administrator is liable for any financial loss to the International Fund, the Supplementary Fund or the HNS Fund, as the case may be, as a result of a failure to communicate information under subsection (2) or (2.2).

2009, c. 21, s. 11

(6) The portion of subsection 117(4) of the Act before paragraph (b) is replaced by the following:

Administrator’s powers

(4) The Administrator may, for the purposes of subsection (1.2), (1.4), (2), (2.1) or (2.2),

(a) at any reasonable time, enter a place in which he or she has reasonable grounds to believe there are any records, books of account, accounts, vouchers or other documents relating to information referred to in Article 15 of the Fund Convention, Article 13 of the Supplementary Fund Protocol or Article 21 or 45 of the Hazardous and Noxious Substances Convention, as the case may be;

2009, c. 21, s. 11

(7) Paragraph 117(7)(b) of the Act is replaced by the following:

(b) entry to the dwelling place is necessary for the purposes of subsection (1.2), (1.4), (2), (2.1) or (2.2); and

2009, c. 21, s. 11

51. Section 125 of the Act is amended by adding “and” at the end of paragraph (b) and by repealing paragraph (c).

2009, c. 21, s. 11

52. (1) Subsection 129(1) of the Act is replaced by the following:

Detention

129. (1) If a designated officer believes, on reasonable grounds, that an offence in respect of section 55, 73 or 74.28 or regulations made under paragraph 39(a) or (b) has been committed by or in respect of a ship, the officer may make a detention order in respect of the ship.

2009, c. 21, s. 11

(2) Paragraph 129(4)(a) of the Act is replaced by the following:

(a) indicate the measures that are to be taken to ensure compliance with section 55, 73 or 74.28 or regulations made under paragraph 39(a) or (b) and that must be taken for the detention order to be revoked within any time specified in the order; and

2009, c. 21, s. 11

53. Section 131 of the Act is replaced by the following:

Contraventions

131. Every person or ship that contravenes subsection 55(1) or (2), 73(1) or (2), 74.28(1) or (2), 128(2) or 129(6) or (7) or regulations made under section 39 is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

2009, c. 21, s. 11

54. Subsections 132(4) and (5) of the Act are replaced by the following:

Contraventions

(4) Every person who contravenes subsection 74.4(7) or 117(5), section 118 or subsection 119(9) is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

Failure to file information return

(4.1) Any person who fails to file an information return required under subsection 74.4(2) or 117(1.2) or (1.4) is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000 for each day of default.

Definition of “person”

(5) For the purposes of subsection (4.1), “person” has the same meaning as in Article I of the Civil Liability Convention, as defined in subsection 47(1), except that, in the context of the Hazardous and Noxious Substances Convention, as defined in that subsection, “person” has the same meaning as in Article 1 of that Convention.

2009, c. 21, s. 11

55. The portion of paragraph 136(1)(a) of the Act before subparagraph (i) is replaced by the following:

(a) an information is laid in respect of an offence under subsection 55(1) or (2), 73(1) or (2) or 74.28(1) or (2) or of a regulation made under paragraph 39(a) or (b), and

56. The Act is amended by adding, after Schedule 8, the Schedule 9 set out in the schedule to this Act.

Coming into Force

Order in council

57. The provisions of this Part, other than subsections 29(2) to (4), sections 30, 32, 34 and 36, subsections 40(2) and 50(1), (3), (4), (6) and (7) and sections 51 and 54, come into force on a day or days to be fixed by order of the Governor in Council.

PART 5

2001, c. 26

CANADA SHIPPING ACT, 2001

Amendments to the Act

58. The definition “oil handling facility” in section 2 of the Canada Shipping Act, 2001 is replaced by the following:

“oil handling facility”
« installation de manutention d’hydrocarbures »

“oil handling facility” means a facility, including an oil terminal, that is used or that will be used in the loading or unloading of petroleum in any form, including crude oil, fuel oil, sludge, oil refuse and refined products, to or from vessels.

59. Subsection 11(2) of the Act is amended by adding the following after paragraph (c):

(c.1) inspections respecting pollution prevention for the purpose of Part 8 (Pollution Prevention and Response — Department of Transport and Department of Fisheries and Oceans);

60. The Act is amended by adding the following after section 167:

Oil Handling Facilities

Notification of proposed operations

167.1 Subject to the regulations, a person who proposes to operate an oil handling facility of a class established by the regulations shall, within the prescribed time, notify the Minister of the proposed operations relating to the loading or unloading of oil to or from vessels and shall submit to the Minister any information or documents required by the regulations and, within the time specified by the Minister, any information or documents requested by the Minister.

Submission of plans

167.2 (1) Subject to the regulations, a person who proposes to operate an oil handling facility of a class established by the regulations shall, at least 90 days before the day on which the oil handling facility’s operations relating to the loading or unloading of oil to or from vessels will begin — or within any other time specified by the Minister — submit to the Minister

(a) an oil pollution prevention plan to prevent a discharge of oil during the loading or unloading of a vessel, which meets the requirements set out in the regulations; and

(b) an oil pollution emergency plan to respond to a discharge of oil during the loading or unloading of a vessel, which meets the requirements set out in the regulations.

Submission of information or documents

(2) A person referred to in subsection (1) shall submit to the Minister any information or documents requested by the Minister, within the time specified by the Minister.

Prohibition against beginning operations

(3) A person referred to in subsection (1) shall not begin operations relating to the loading or unloading of oil to or from vessels unless the plans submitted under subsection (1) meet the requirements set out in the regulations.

Notification of operations

167.3 Subject to the regulations, the operator of an oil handling facility of a class established by the regulations shall notify the Minister of the oil handling facility’s operations relating to the loading or unloading of oil to or from vessels within 90 days after the day on which this section comes into force and shall submit to the Minister any information or documents required by the regulations and, within the time specified by the Minister, any information or documents requested by the Minister.

Submission of plans

167.4 Subject to the regulations, unless the plans have already been submitted under subsection 167.2(1), the operator of an oil handling facility of a class established by the regulations shall submit to the Minister, within the time set out in the regulations, an oil pollution prevention plan to prevent a discharge of oil during the loading or unloading of a vessel and an oil pollution emergency plan to respond to a discharge of oil during the loading or unloading of a vessel — which meet the requirements set out in the regulations — and shall submit to the Minister any information or documents requested by the Minister, within the time specified by the Minister.

61. (1) The portion of subsection 168(1) of the Act before paragraph (a) is replaced by the following:

Oil handling facilities — requirements

168. (1) Subject to the regulations, the operator of an oil handling facility of a class established by the regulations shall

(2) Subparagraph 168(1)(b)(i) of the Act is replaced by the following:

(i) describes the manner in which the operator will comply with the regulations made under paragraph 182(1)(a),

(3) Paragraphs 168(1)(c) and (d) of the Act are replaced by the following:

(c) have on site an up-to-date oil pollution prevention plan to prevent a discharge of oil during the loading or unloading of a vessel, which meets the requirements set out in the regulations;

(c.1) submit the up-to-date oil pollution prevention plan to the Minister within the time and in the circumstances set out in the regulations;

(d) have on site an up-to-date oil pollution emergency plan to respond to a discharge of oil during the loading or unloading of a vessel, which meets the requirements set out in the regulations;

(d.1) submit the up-to-date oil pollution emergency plan to the Minister within the time and in the circumstances set out in the regulations; and

(4) Paragraph 168(1)(e) of the English version of the Act is replaced by the following:

(e) have the procedures, equipment and resources required by the regulations available for immediate use in the event of a discharge of oil during the loading or unloading of a vessel.

(5) Subsection 168(2) of the Act is repealed.

62. The Act is amended by adding the following after section 168:

Notification of proposed change to operations

168.01 (1) Subject to the regulations, an operator of an oil handling facility of a class established by the regulations that proposes to make a change, or permit a change to be made, to the oil handling facility’s operations relating to the loading or unloading of oil to or from vessels shall — at least 180 days before the day on which it makes the change or permits the change to be made — notify the Minister of the change, including any of the following changes:

(a) a change in the oil handling facility’s transfer rate, if the change would result in the oil handling facility becoming part of a different class established by the regulations;

(b) a change in the design of the oil handling facility, or a change in the oil handling facility’s equipment; or

Submission of information or documents

(2) The operator referred to in subsection (1) shall submit to the Minister any information or documents required by the regulations and, within the time specified by the Minister, any information or documents requested by the Minister.

Revise plans

(3) The operator referred to in subsection (1) shall revise the oil pollution prevention plan and the oil pollution emergency plan and submit the revised plans to the Minister at least 90 days before making the change or permitting the change to be made, or within any other time specified by the Minister.

Prohibition against making changes

(4) An operator shall not make a change referred to in subsection (1) or permit one to be made unless the plans submitted under subsection (3) meet the requirements set out in the regulations.

63. The Act is amended by adding the following after section 168:

Update or revise plans

168.1 Despite any other provision of this Part or the regulations, the Minister may direct the operator of an oil handling facility to update or revise an oil pollution prevention plan or an oil pollution emergency plan and to submit the up-to-date or revised plan to the Minister within the time specified by the Minister.

Provide information

168.2 A marine safety inspector may direct any person to provide the inspector with any information that the inspector reasonably requires in the administration of this Part.

Minister may take measures

168.3 If the Minister believes on reasonable grounds that an oil handling facility has discharged, is discharging or is likely to discharge oil, that the oil pollution prevention plan or the oil pollution emergency plan for an oil handling facility does not meet the requirements set out in the regulations or that the operator of an oil handling facility does not have the procedures, equipment and resources required by the regulations available for immediate use in the event of a discharge of oil during the loading or unloading of a vessel, the Minister may

(a) monitor the measures taken by any person to repair, remedy, minimize or prevent pollution damage from the oil handling facility; or

(b) if he or she considers it necessary, direct the operator of the oil handling facility to take the measures that the Minister considers necessary to repair, remedy, minimize or prevent pollution damage from the oil han-dling facility, including to stop loading or unloading oil to or from vessels.

64. The Act is amended by adding the following after section 171:

Provide documents

171.1 A marine safety inspector may direct a response organization to provide the inspector with any document that the organization is required to have under this Part.

2005, c. 29, s. 23

65. Section 174 of the Act and the heading before it are replaced by the following:

Pollution Response Officers

2005, c. 29, s. 23

66. Section 175 of the Act is repealed.

2005, c. 29, s. 24(1)

67. (1) The portion of subsection 176(1) of the Act before paragraph (a) is replaced by the following:

Powers of pollution response officer

176. (1) For the purpose of exercising his or her powers under this Part, a pollution response officer may

2005, c. 29, s. 24(2)(E)

(2) The portion of subsection 176(3) of the Act before paragraph (a) is replaced by the following:

Authority to issue warrant

(3) On ex parte application, a justice of the peace may issue a warrant authorizing a pollution response officer to enter living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that entry to the living quarters

68. (1) Subsection 181(2) of the Act is replaced by the following:

Civil or criminal liability

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

(2) Subsection 181(4) of the Act is replaced by the following:

Definition of “response operation”

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

69. (1) Section 182 of the Act is amended by striking out “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(d.1) establishing classes of oil handling facilities and determining which of the requirements set out in sections 167.1 to 168.01 apply to the operators of, or to persons who propose to operate, oil handling facilities of each class;

(d.2) respecting oil pollution prevention plans and oil pollution emergency plans, including the time within which the plans shall be submitted to the Minister and the circumstances in which up-to-date plans shall be submitted to the Minister;

(d.3) respecting the procedures, equipment and resources referred to in paragraph 168(1)(e) and section 168.3;

(d.4) respecting the information and documents referred to in sections 167.1 and 167.3 and subsection 168.01(2), including the time within which the information and documents shall be submitted to the Minister; and

(2) Section 182 of the Act is renumbered as subsection 182(1) and is amended by adding the following:

Designation

(2) Despite the regulations, the Minister may designate an oil handling facility that is part of a class established by the regulations to be part of a different class established by the regulations or an oil handling facility that is not part of a class established by the regulations to be part of one of those classes.

Notification

(3) The Minister shall notify the operator of an oil handling facility of any designation made in respect of it under subsection (2).

70. (1) Subsection 183(1) of the Act is amended by adding the following after paragraph (a):

(a.1) subsection 167.2(1) (submission of oil pollution prevention plan and oil pollution emergency plan);

(a.2) subsection 167.2(3) (prohibition against beginning operations);

(a.3) section 167.4 (submission of plans);

(2) Subsection 183(1) of the Act is amended by adding the following after paragraph (b):

(b.1) paragraph 168(1)(c.1) (submission of up-to-date oil pollution prevention plan);

(b.2) paragraph 168(1)(d.1) (submission of up-to-date oil pollution emergency plan);

(3) Subsection 183(1) of the Act is amended by adding the following after paragraph (e):

(e.01) subsection 168.01(3) (revise plans);

(e.02) subsection 168.01(4) (prohibition against making changes);

(4) Subsection 183(1) of the Act is amended by adding the following after paragraph (e):

(e.1) a direction given under section 168.1 (to update or revise plans);

(e.2) a direction given under paragraph 168.3(b) (to take measures);

71. (1) The portion of subsection 184(1) of the French version of the Act before paragraph (b) is replaced by the following:

Contravention à la loi et aux règlements

184. (1) Commet une infraction la personne ou le bâtiment qui contrevient :

a) à l’alinéa 167(1)b) (obligation d’avoir à bord une déclaration);

(2) Subsection 184(1) of the Act is amended by adding the following after paragraph (a):

(a.1) section 167.1 (notification of proposed operations);

(a.2) subsection 167.2(2) (submission of information or documents);

(a.3) section 167.3 (notification of operations);

(3) Paragraphs 184(1)(b) to (d) of the French version of the Act are replaced by the following:

b) à l’alinéa 168(1)b) (obligation d’avoir sur les lieux une déclaration);

c) à l’alinéa 168(1)c) (obligation d’avoir sur les lieux un plan de prévention);

d) à l’alinéa 168(1)d) (obligation d’avoir sur les lieux un plan d’urgence);

(4) Subsection 184(1) of the Act is amended by adding the following after paragraph (d):

(d.01) subsection 168.01(1) (notification of proposed change to operations);

(d.02) subsection 168.01(2) (submission of information or documents);

(5) Subsection 184(1) of the Act is amended by adding the following after paragraph (d):

(d.1) a direction given under section 168.2 (to provide information);

(6) Paragraph 184(1)(h) of the French version of the Act is replaced by the following:

h) à l’alinéa 171f) (obligation de fournir des renseignements);

(7) Subsection 184(1) of the Act is amended by adding the following after paragraph (h):

(h.1) a direction given under section 171.1 (to provide documents);

(8) Paragraphs 184(1)(i) to (l) of the Act are replaced by the following:

(i) a direction given under paragraph 175.1(1)(a) (to provide information officer considers appropriate);

(j) a direction given under paragraph 175.1(1)(b) (to proceed by a route and not in excess of a speed);

(k) a direction given under paragraph 175.1(1)(c) (to provide information relating to pollution plan);

(l) a direction given under paragraph 175.1(1)(d) or (e) (to provide documents);

(9) Paragraphs 184(1)(m) to (o) of the French version of the Act are replaced by the following:

m) à un ordre donné en vertu de l’alinéa 176(1)b) (ordre de prêter assistance);

n) à un ordre donné en vertu des alinéas 176(1)c) ou d) (ordre de fournir des renseignements ou de remettre des documents);

o) à toute disposition d’un règlement d’application de la présente partie.

2005, c. 29, s. 32

72. The definition “relevant provision” in section 210 of the Act is replaced by the following:

“relevant provision”
« disposition visée »

“relevant provision” means a provision of this Act or the regulations that the Minister is responsible for administering, other than

(a) subsection 40(1) with respect to a provision of regulations made under paragraph 35(1)(e) in relation to Part 7 (Wreck) or 10 (Pleasure Craft); and

(b) a provision of any of Parts 5 (Navigation Services), 7 (Wreck) and 10 (Pleasure Craft) or a provision of any regulation made under any of those Parts, except a provision of the regulations made under paragraph 136(1)(f) in so far as it applies in respect of Canadian vessels or foreign vessels.

73. (1) Subsection 211(2) of the Act is replaced by the following:

Living quarters

(2) Living quarters may not be entered under subsection (1) unless they are entered with the consent of the occupant, under the authority of a warrant issued under subsection (2.1) or for the purpose of ensuring that a vessel complies with a relevant provision.

Authority to issue warrant

(2.1) On ex parte application, a justice of the peace may issue a warrant authorizing a marine safety inspector to enter living quarters, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that entry to the living quarters

(a) is necessary for any purpose related to the administration of a relevant provision of Part 8; and

(b) has been refused or there are reasonable grounds for believing that it will be refused.

Use of force

(2.2) A marine safety inspector executing a warrant must not use force unless they are accompanied by a peace officer and the use of force is specifically authorized in the warrant.

(2) Paragraph 211(4)(a) of the Act is replaced by the following:

(a) direct any person to answer reasonable questions, provide reasonable assistance or put into operation or cease operating any machinery or equipment being inspected;

(3) Paragraph 211(4)(e) of the Act is replaced by the following:

(d.1) direct the operator of an oil handling facility, or a person who proposes to operate an oil handling facility, to carry out any emergency or safety procedure that is required by the regulations or that is described in an oil pollution prevention plan or an oil pollution emergency plan referred to in Part 8;

(e) direct any person who is at the place where the inspection is being carried out to produce for inspection, or for the purpose of making copies or taking extracts, any document that they are required to have, or that the operator of an oil handling facility is required to have on site, under a relevant provision;

74. Section 228 of the Act is replaced by the following:

Definition of “violation”

228. In sections 229 to 244, “violation” means a contravention of a relevant provision, or a contravention of a direction given under a relevant provision, that is designated as a violation by the regulations made under this Part.

75. (1) Paragraph 244(f) of the Act is replaced by the following:

(f) designating as a violation that may be proceeded with in accordance with sections 229 to 242 the contravention of a relevant provision, or the contravention of a direction given under a relevant provision, that is an offence under this Act;

(2) Section 244 of the Act is amended by adding the following after paragraph (h):

(i) respecting emergency and safety pro-cedures for the purpose of paragraph 211(4)(d.1);

2005, c. 29, s. 33

76. Subsection 252(1) of the Act is replaced by the following:

Proof of offence

252. (1) In a prosecution of a vessel for an offence under this Act, it is sufficient proof that the vessel has committed the offence to establish that the act or omission that constitutes the offence was committed by the master or any person on board, other than a person carrying out an inspection under this Act or a pollution response officer, whether or not the person on board has been identified.

77. Section 268.1 of the Act is replaced by the following:

Crown not relieved

268.1 Subsections 11(5) and 12(5), section 45 and subsections 154(3) and 195(3) do not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown of liability in respect of a tort or extracontractual civil liability to which the Crown would otherwise be subject.

1992, c. 31

Consequential Amendment to the Coasting Trade Act

2001, c. 26, s. 290

78. Paragraph 3(2)(e) of the Coasting Trade Act is replaced by the following:

(e) engaged, with the approval of a person designated as a pollution response officer under section 174.1 of the Canada Shipping Act, 2001, in activities related to a marine pollution emergency, or to a risk of a marine pollution emergency.

Coming into Force

Order in council

79. Sections 60 to 62 and 69 and subsections 70(1) to (3) and 71(2) and (4) come into force on a day or days to be fixed by order of the Governor in Council.

Explanatory Notes

Marine and Aviation War Risks Act

Clause 3: Existing text of the long title:

An Act respecting marine and aviation war risks insurance and reinsurance agreements

Clause 4: Existing text of section 1:

1. This Act may be cited as the Marine and Aviation War Risks Act.

Clause 5: (1) and (2) Existing text of the definitions:

“aircraft” means an aircraft that is

(a) registered in Canada pursuant to regulations made under the Aeronautics Act, or

(b) registered in any other country other than Canada designated by the Governor in Council;

“Account” means the Marine and Aviation War Risks Insurance Account established under section 5;

Clause 6: Existing text of section 3:

3. The Minister, for the purpose of securing that ships and aircraft are not laid up and that commerce is not interrupted by reason of lack of insurance facilities, may enter into an agreement, in such form and containing such terms and conditions as are prescribed by the regulations or otherwise approved by the Governor in Council, with any person or association of persons for the insurance or reinsurance by him against any or all war risks of

(a) aircraft,

(b) vessels, or

Clause 7: Relevant portion of section 4:

4. The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect and, without restricting the generality of the foregoing, may make regulations

...

(c) respecting the designation of countries of registry for the purposes of paragraph (b) of the definition “aircraft” in section 2 and paragraph (c) of the definition “vessel” in section 2.

Clause 8: Relevant portion of subsection 5(1):

5. (1) There shall be established in the Consolidated Revenue Fund an account to be known as the Marine and Aviation War Risks Insurance Account, hereinafter referred to as the “Account”, to which shall be credited

Aeronautics Act

Clause 10: (1) Existing text of the definition:

“Minister” means

(a) subject to paragraph (b), the Minister of Transport or such other Minister as is designated by the Governor in Council as the Minister for the purposes of this Act, and

(b) with respect to any matter relating to defence, including any matter relating to military personnel or a military aircraft, military aerodrome or military facility of Canada or a foreign state, the Minister of National Defence or, under the direction of the Minister of National Defence, the Chief of the Defence Staff appointed under the National Defence Act;

(2) Existing text of subsection 3(2):

(2) Notwithstanding the definition “Minister” in subsection (1), “Minister”, in relation to any matter referred to in paragraph 4.2(n), 4.9(p), (q) or (r), section 6.3 or paragraph 8.7(1)(b), means the Minister of National Defence.

Clause 11: (1) and (2) Relevant portion of section 4.2:

4.2 The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics and, in the discharge of those responsibilities, the Minister may

...

(n) investigate matters concerning aviation safety; and

(3) New.

Clause 12: New.

Clause 13: New.

Clause 14: New.

Clause 15: Existing text of the heading and section 6.3:

Boards of Inquiry

6.3 (1) The Minister may establish a board of inquiry to inquire, subject to the Canadian Transportation Accident Investigation and Safety Board Act, into the circumstances of any accident involving an aircraft, any alleged contravention under this Part or any incident involving an aircraft that, in the opinion of the Minister, endangered the safety of persons, and may designate the persons who are to be members of that board.

(2) Every person designated by the Minister as a member of a board of inquiry has and may exercise all the powers of a person appointed as a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.

(3) Every witness who attends and gives evidence before a board of inquiry is entitled to be paid reasonable travel and living expenses incurred by the witness in so attending and giving evidence and the witness fees prescribed in the tariff of fees in use in the superior court of the province in which the witness’s evidence is given.

(4) A board of inquiry shall send a full report of the inquiry conducted by it to the Minister within such time as the Minister may require.

Clause 16: Existing text of section 6.4:

6.4 The provisions of sections 28, 29 and 30 of the Canadian Transportation Accident Investigation and Safety Board Act relating to on-board recordings, communication records and statements, within the meaning of those respective sections, apply, with such modifications as the circumstances require, to and in respect of a board of inquiry and an inquiry conducted by such a board under section 6.3 and any investigation by the Minister concerning aviation safety.

Clause 17: Existing text of section 6.7:

6.7 Sections 6.71 to 7.21 do not apply to a member of the Canadian Armed Forces acting in that capacity or to any other person in relation to a Canadian aviation document issued in respect of a military aircraft, military aerodrome or military facility.

Clause 18: New.

Clause 19: New.

Clause 20: (1) Relevant portion of subsection 27(1):

27. (1) In any action or proceeding under this Act, any document purporting to be certified by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency to be a true copy of a document made, given or issued under this Act is, without proof of the signature or of the official character of the person appearing to have signed the document, evidence

(2) and (3) Relevant portion of subsection 27(2):

(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency stating that a document, authorization or exemption under this Act

...

is evidence of the facts stated therein, without proof of the signature or of the official character of the person appearing to have signed the certificate and without further proof thereof.

National Defence Act

Clause 22: New.

Canadian Transportation Accident Investigation and Safety Board Act

Clause 23: Existing text of subsection 18(4):

(4) Where a transportation occurrence referred to in subsection (3) is being investigated by the Board and by the Department of National Defence, the Canadian Forces or a visiting force, the Board and the Minister of National Defence shall take all reasonable measures to ensure that the investigations are coordinated.

Canada Marine Act

Clause 27: Existing text of subsection 14(2.2):

(2.2) A director’s appointment takes effect on the day on which notice of the appointment is received by the port authority.

Marine Liability Act

Clause 28: Existing text of the heading:

LIABILITY AND COMPENSATION FOR POLLUTION

Clause 29: (1) Existing text of the definition:

“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.

(2) New.

(3) Relevant portion of subsection 47(2):

(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:

(4) Existing text of subsection 47(3):

(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.

Clause 30: Existing text of subsection 54(2):

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

Clause 31: New.

Clause 32: New.

Clause 33: New.

Clause 34: New.

Clause 35: New.

Clause 36: New.

Clause 37: Relevant portion of section 76:

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,

Clause 38: New.

Clause 39: (1) and (2) Relevant portion of section 90:

90. The Governor in Council may make regulations

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

...

(3) and (4) New.

Clause 40: (1) Existing text of the definition:

“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.

(2) Existing text of subsection 91(2):

(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).

Clause 41: (1) Relevant portion of subsection 101(1):

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;

(2) and (3) New.

Clause 42: (1) Existing text of subsection 102(1):

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,

(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) Relevant portion of subsection 102(3):

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

Clause 43: (1) Existing text of subsection 103(1):

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) Existing text of subsection 103(3):

(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.

Clause 44: Relevant portion of section 104:

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

Clause 45: (1) and (2) Relevant portion of subsection 106(3):

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

...

(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;

...

(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.

Clause 46: Relevant portion of subsection 109(1):

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,

Clause 47: Existing text of the heading:

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

Clause 48: Existing text of subsection 112(1):

Clause 49: (1) Existing text of subsection 116(1):

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) Relevant portion of subsection 116(2):

(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

Clause 50: (1) Existing text of subsection 117(1):

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) to (4) New.

(5) Existing text of subsection 117(3):

(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.

(6) Relevant portion of subsection 117(4):

(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;

(7) Relevant portion of subsection 117(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

...

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

Clause 51: Relevant portion of section 125:

125. The Governor in Council may make regulations

...

(c) providing for the filing with the Minister or the Administrator of information returns necessary to enable the Administrator to discharge his or her obligations under section 117; and

Clause 52: (1) Existing text of subsection 129(1):

129. (1) If a designated officer believes, on reasonable grounds, that an offence in respect of sections 55 or 73 or regulations made under paragraph 39(a) or (b) has been committed by or in respect of a ship, they may make a detention order in respect of the ship.

(2) Relevant portion of subsection 129(4):

(4) The notice must

(a) indicate the measures to be taken to ensure compliance with section 55 or 73 or regulations made under paragraph 39(a) or (b) that must be taken for the detention order to be revoked within any time specified in the order; and

Clause 53: Existing text of section 131:

131. Every person who, or ship that, contravenes subsection 55(1) or (2), 73(1) or (2), 128(2) or 129(6) or (7) or regulations made under section 39 is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

Clause 54: Existing text of subsections 132(4) and (5):

(4) Every person who contravenes subsection 117(5), section 118 or subsection 119(9) is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

(5) For the purposes of this section, “person” has the same meaning as in Article I of the Civil Liability Convention within the meaning of subsection 47(1).

Clause 55: Relevant portion of subsection 136(1):

136. (1) The Minister may apply to any court of competent jurisdiction for an order authorizing him or her to sell a ship that has been detained under section 129 if

(a) an information is laid in respect of an offence under subsection 55(1) or (2) or 73(1) or (2) or of a regulation made under paragraph 39(a) or (b), and

Clause 56: New.

Canada Shipping Act, 2001

Clause 58: Existing text of the definition:

“oil handling facility” means a facility, including an oil terminal, that is used in the loading or unloading of petroleum in any form, including crude oil, fuel oil, sludge, oil refuse and refined products, to or from vessels.

Clause 59: New.

Clause 60: New.

Clause 61: (1) to (4) Relevant portion of subsection 168(1):

168. (1) The operator of an oil handling facility of a prescribed class shall

...

(b) have on site a declaration in the form specified by the Minister that

(i) describes the manner in which the operator will comply with the regulations made under paragraph 182(a),

...

(c) have on site an oil pollution prevention plan that meets the prescribed requirements to prevent a discharge of oil during the loading or unloading of a vessel;

(d) have on site an oil pollution emergency plan that meets the prescribed requirements to respond to a discharge of oil during the loading or unloading of a vessel; and

(e) have the prescribed procedures, equipment and resources available for immediate use in the event of a discharge of oil during the loading or unloading of a vessel.

(5) Existing text of subsection 168(2):

(2) Paragraph (1)(a) and subparagraphs (1)(b)(ii) and (iii) do not apply in respect of prescribed classes of oil handling facilities.

Clause 62: New.

Clause 63: New.

Clause 64: New.

Clause 65: Existing text of the heading and of section 174:

Pollution Prevention Officers and Pollution Response Officers

174. (1) The Minister may designate any persons or classes of persons as pollution prevention officers in respect of oil handling facilities and response organizations and may limit in any manner that he or she considers appropriate the powers that the officers may exercise under this Part.

(2) The Minister must furnish every pollution prevention officer with a certificate of designation and, if the officer’s powers are limited under subsection (1), the certificate must specify the powers that the officer may exercise.

(3) Pollution prevention officers are not personally liable for anything they do or omit to do in good faith under this Part.

Clause 66: Existing text of section 175:

175. A pollution prevention officer may

(a) direct the operator of an oil handling facility to provide him or her with any document that the operator is required to have on site under this Part;

(b) direct a response organization to provide him or her with any document that the organization is required to have under this Part;

(c) inspect an oil handling facility to determine whether its equipment and resources meet the requirements of this Part; and

(d) inspect a response organization’s facilities to determine whether the organization’s equipment and resources meet the requirements of this Part.

Clause 67: (1) Relevant portion of subsection 176(1):

176. (1) For the purpose of exercising his or her powers under this Part, a pollution prevention officer or a pollution response officer may

(2) Relevant portion of subsection 176(3):

(3) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing a pollution prevention officer or a pollution response officer to enter living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that entry to the living quarters

Clause 68: (1) Existing text of subsection 181(2):

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

(2) Existing text of subsection 181(4):

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

Clause 69: (1) Relevant portion of section 182:

182. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations

(2) New.

Clause 70: (1) Relevant portion of subsection 183(1):

183. (1) Every person who, or vessel that, contravenes any of the following commits an offence:

(2) and (3) New.

Clause 71: (1) Relevant portion of subsection 184(1):

184. (1) Every person who, or vessel that, contravenes any of the following commits an offence:

(2) and (3) New.

Clause 72: Existing text of the definition:

“relevant provision” means a provision of this Act or the regulations that the Minister is responsible for administering, other than

(a) subsection 40(1) with respect to a provision of regulations made under paragraph 35(1)(e) in relation to any of Parts 7 (Wreck), 8 (Pollution Prevention and Response — Department of Transport and Department of Fisheries and Oceans) and 10 (Pleasure Craft); and

(b) a provision of any of Parts 5 (Navigation Services), 7 (Wreck), 8 (Pollution Prevention and Response — Department of Transport and Department of Fisheries and Oceans) and 10 (Pleasure Craft) or a provision of any regulation made under any of those Parts, except a provision of the regulations made under paragraph 136(1)(f) in so far as it applies in respect of Canadian vessels or foreign vessels.

Clause 73: (1) Existing text of subsection 211(2):

(2) Living quarters may not be entered under subsection (1) unless they are entered with the consent of the occupant or for the purpose of ensuring that the vessel complies with a relevant provision.

(2) and (3) Relevant portion of subsection 211(4):

(4) In carrying out an inspection, a marine safety inspector or, subject to any limitations set out under subsection 12(2) in their certificate of authorization, a person, classification society or other organization authorized to carry out inspections may

(a) direct any person to answer reasonable questions, provide reasonable assistance or put into operation or cease operating any machinery or equipment on a vessel being inspected;

...

Clause 74: Existing text of section 228:

228. In sections 229 to 244, “violation” means a contravention of a relevant provision that is designated as a violation by the regulations made under this Part.

Clause 75: (1) Relevant portion of section 244:

244. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations

...

(f) designating as a violation that may be proceeded with in accordance with sections 229 to 242 the contravention of a relevant provision that is an offence under this Act;

(2) New.

Clause 76: Existing text of subsection 252(1):

252. (1) In a prosecution of a vessel for an offence under this Act, it is sufficient proof that the vessel has committed the offence to establish that the act or omission that constitutes the offence was committed by the master or any person on board, other than a person carrying out an inspection under this Act, a pollution prevention officer or a pollution response officer, whether or not the person on board has been identified.

Clause 77: Existing text of section 268.1:

268.1 Subsections 11(5) and 12(5), section 45 and subsections 154(3), 174(3) and 195(3) do not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown of liability in respect of a tort or extracontractual civil liability to which the Crown would otherwise be subject.

Coasting Trade Act

Clause 78: Relevant portion of subsection 3(2):

(2) Subsection (1) does not apply in respect of any foreign ship or non-duty paid ship that is

...

(e) engaged, with the approval of a person designated as a pollution prevention officer under section 174 of the Canada Shipping Act, 2001 or authorized under paragraph 11(2)(d) of that Act to carry out inspections, in activities related to a marine pollution emergency, or to a risk of a marine pollution emergency.

SCHEDULE

(Section 56)

SCHEDULE 9

(Sections 74.01, 74.22 and 74.23)

PART 1

Text of Articles 1 to 5, 7 to 23, 37 to 41, 45, 48 and 52 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010

Chapter I

GENERAL PROVISIONS

Definitions

Article 1

For the purposes of this Convention:

1. “Ship” means any seagoing vessel and seaborne craft, of any type whatsoever.

2. “Person” means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.

3. “Owner” means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, “owner” shall mean such company.

4. “Receiver” means either:

(a) the person who physically receives contributing cargo discharged in the ports and terminals of a State Party; provided that if at the time of receipt the person who physically receives the cargo acts as an agent for another who is subject to the jurisdiction of any State Party, then the principal shall be deemed to be the receiver, if the agent discloses the principal to the HNS Fund; or

(b) the person in the State Party who in accordance with the national law of that State Party is deemed to be the receiver of contributing cargo discharged in the ports and terminals of a State Party, provided that the total contributing cargo received according to such national law is substantially the same as that which would have been received under (a).

5. “Hazardous and noxious substances” (HNS) means:

(a) any substances, materials and articles carried on board a ship as cargo, referred to in (i) to (vii) below:

(i) oils, carried in bulk, as defined in regulation 1 of annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended;

(ii) noxious liquid substances, carried in bulk, as defined in regulation 1.10 of Annex II to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended, and those substances and mixtures provisionally categorized as falling in pollution category X, Y or Z in accordance with regulation 6.3 of the said Annex II;

(iii) dangerous liquid substances carried in bulk listed in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, as amended, and the dangerous products for which the preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code;

(iv) dangerous, hazardous and harmful substances, materials and articles in packaged form covered by the International Maritime Dangerous Goods Code, as amended;

(v) liquefied gases as listed in chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk, as amended, and the products for which preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code;

(vi) liquid substances carried in bulk with a flashpoint not exceeding 60°C (measured by a closed-cup test);

(vii) solid bulk materials possessing chemical hazards covered by the International Maritime Solid Bulk Cargoes Code, as amended, to the extent that these substances are also subject to the provisions of the International Maritime Dangerous Goods Code in effect in 1996, when carried in packaged form; and

(b) residues from the previous carriage in bulk of substances referred to in (a)(i) to (iii) and (v) to (vii) above.

5bis “Bulk HNS” means any hazardous and noxious substances referred to in article 1, paragraph 5(a)(i) to (iii) and (v) to (vii) and paragraph 5(b).

5ter “Packaged HNS” means any hazardous and noxious substances referred to in article 1, paragraph 5(a)(iv).

6. “Damage” means:

(a) loss of life or personal injury on board or outside the ship carrying the hazardous and noxious substances caused by those substances;

(b) loss of or damage to property outside the ship carrying the hazardous and noxious substances caused by those substances;

(c) loss or damage by contamination of the environment caused by the hazardous and noxious substances, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and

(d) the costs of preventive measures and further loss or damage caused by preventive measures.

Where it is not reasonably possible to separate damage caused by the hazardous and noxious substances from that caused by other factors, all such damage shall be deemed to be caused by the hazardous and noxious substances except if, and to the extent that, the damage caused by other factors is damage of a type referred to in article 4, paragraph 3.

In this paragraph, “caused by those substances” means caused by the hazardous or noxious nature of the substances.

7. “Preventive measures” means any reasonable measures taken by any person after an incident has occurred to prevent or minimize damage.

8. “Incident” means any occurrence or series of occurrences having the same origin, which causes damage or creates a grave and imminent threat of causing damage.

9. “Carriage by sea” means the period from the time when the hazardous and noxious substances enter any part of the ship’s equipment, on loading, to the time they cease to be present in any part of the ship’s equipment, on discharge. If no ship’s equipment is used, the period begins and ends respectively when the hazardous and noxious substances cross the ship’s rail.

10. “Contributing cargo” means any bulk HNS which is carried by sea as cargo to a port or terminal in the territory of a State Party and discharged in that State. Cargo in transit which is transferred directly, or through a port or terminal, from one ship to another, either wholly or in part, in the course of carriage from the port or terminal of original loading to the port or terminal of final destination shall be considered as contributing cargo only in respect of receipt at the final destination.

11. The “HNS Fund” means the International Hazardous and Noxious Substances Fund established under article 13.

12. “Unit of account” means the Special Drawing Right as defined by the International Monetary Fund.

13. “State of the ship’s registry” means in relation to a registered ship the State of registration of the ship, and in relation to an unregistered ship the State whose flag the ship is entitled to fly.

14. “Terminal” means any site for the storage of hazardous and noxious substances received from waterborne transportation, including any facility situated off-shore and linked by pipeline or otherwise to such site.

15. “Director” means the Director of the HNS Fund.

16. “Organization” means the International Maritime Organization.

17. “Secretary-General” means the Secretary-General of the Organization.

Annexes

Article 2

The Annexes to this Convention shall constitute an integral part of this Convention.

Scope of application

Article 3

This Convention shall apply exclusively:

(a) to any damage caused in the territory, including the territorial sea, of a State Party;

(b) to damage by contamination of the environment caused in the exclusive economic zone of a State Party, established in accordance with international law, or, if a State Party has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;

(c) to damage, other than damage by contamination of the environment, caused outside the territory, including the territorial sea, of any State, if this damage has been caused by a substance carried on board a ship registered in a State Party or, in the case of an unregistered ship, on board a ship entitled to fly the flag of a State Party; and

(d) to preventive measures, wherever taken, to prevent or minimize such damage as referred to in (a), (b) and (c) above.

Article 4

1. This Convention shall apply to claims, other than claims arising out of any contract for the carriage of goods and passengers, for damage arising from the carriage of hazardous and noxious substances by sea.

2. This Convention shall not apply to the extent that its provisions are incompatible with those of the applicable law relating to workers’ compensation or social security schemes.

3. This Convention shall not apply:

(a) to pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended, whether or not compensation is payable in respect of it under that Convention; and

(b) to damage caused by a radioactive material of class 7 either in the International Maritime Dangerous Goods Code, as amended, or in the International Maritime Solid Bulk Cargoes Code, as amended.

4. Except as provided in paragraph 5, the provisions of this Convention shall not apply to warships, naval auxiliary or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service.

5. A State Party may decide to apply this Convention to its warships or other vessels described in paragraph 4, in which case it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

6. With respect to ships owned by a State Party and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in article 38 and shall waive all defences based on its status as a sovereign State.

Article 5

1. A State may, at the time of ratification, acceptance, approval of, or accession to, this Convention, or any time thereafter, declare that this Convention does not apply to ships:

(a) which do not exceed 200 gross tonnage; and

(b) which carry hazardous and noxious substances only in packaged form; and

2. Where two neighbouring States agree that this Convention does not apply also to ships which are covered by paragraph 1(a) and (b) while engaged on voyages between ports or facilities of those States, the States concerned may declare that the exclusion from the application of this Convention declared under paragraph 1 covers also ships referred to in this paragraph.

3. Any State which has made the declaration under paragraph 1 or 2 may withdraw such declaration at any time.

4. A declaration made under paragraph 1 or 2, and the withdrawal of the declaration made under paragraph 3, shall be deposited with the Secretary-General who shall, after the entry into force of this Convention, communicate it to the Director.

5. The HNS Fund is not liable to pay compensation for damage caused by substances carried by a ship to which the Convention does not apply pursuant to a declaration made under paragraph 1 or 2, to the extent that:

(a) the damage as defined in article 1, paragraph 6(a), (b) or (c) was caused in:

(i) the territory, including the territorial sea, of the State which has made the declaration, or in the case of neighbouring States which have made a declaration under paragraph 2, of either of them; or

(ii) the exclusive economic zone, or area mentioned in article 3(b), of the State or States referred to in (i);

(b) the damage includes measures taken to prevent or minimize such damage.

Chapter II

LIABILITY

Liability of the owner

Article 7

1. Except as provided in paragraphs 2 and 3, the owner at the time of an incident shall be liable for damage caused by any hazardous and noxious substances in connection with their carriage by sea on board the ship, provided that if an incident consists of a series of occurrences having the same origin the liability shall attach to the owner at the time of the first of such occurrences.

2. No liability shall attach to the owner if the owner proves that:

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

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

(c) the damage 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; or

(d) the failure of the shipper or any other person to furnish information concerning the hazardous and noxious nature of the substances shipped either:

(i) has caused the damage, wholly or partly; or

(ii) has led the owner not to obtain insurance in accordance with article 12;

provided that neither the owner nor its servants or agents knew or ought reasonably to have known of the hazardous and noxious nature of the substances shipped.

3. If the owner proves that the damage resulted wholly or partly either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from liability to such person.

4. No claim for compensation for damage shall be made against the owner otherwise than in accordance with this Convention.

5. Subject to paragraph 6, no claim for compensation for damage under this Convention or otherwise may be made against:

(a) the servants or agents of the owner or the members of the crew;

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

(d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

(e) any person taking preventive measures; and

(f) the servants or agents of persons mentioned in (c), (d) and (e);

unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

6. Nothing in this Convention shall prejudice any existing right of recourse of the owner against any third party, including, but not limited to, the shipper or the receiver of the substance causing the damage, or the persons indicated in paragraph 5.

Incidents involving two or more ships

Article 8

1. Whenever damage has resulted from an incident involving two or more ships each of which is carrying hazardous and noxious substances, each owner, unless exonerated under article 7, shall be liable for the damage. The owners shall be jointly and severally liable for all such damage which is not reasonably separable.

2. However, owners shall be entitled to the limits of liability applicable to each of them under article 9.

3. Nothing in this article shall prejudice any right of recourse of an owner against any other owner.

Limitation of liability

Article 9

1. The owner of a ship shall be entitled to limit liability under this Convention in respect of any one incident to an aggregate amount calculated as follows:

(a) Where the damage has been caused by bulk HNS:

(i) 10 million units of account for a ship not exceeding 2,000 units of tonnage; and

(ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

for each unit of tonnage from 2,001 to 50,000 units of tonnage, 1,500 units of account;

for each unit of tonnage in excess of 50,000 units of tonnage, 360 units of account;

provided, however, that this aggregate amount shall not in any event exceed 100 million units of account.

(b) Where the damage has been caused by packaged HNS, or where the damage has been caused by both bulk HNS and packaged HNS, or where it is not possible to determine whether the damage originating from that ship has been caused by bulk HNS or by packaged HNS:

(i) 11.5 million units of account for a ship not exceeding 2,000 units of tonnage; and

(ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

for each unit of tonnage from 2,001 to 50,000 units of tonnage, 1,725 units of account;

for each unit of tonnage in excess of 50,000 units of tonnage, 414 units of account;

provided, however, that this aggregate amount shall not in any event exceed 115 million units of account.

2. The owner shall not be entitled to limit liability under this Convention if it is proved that the damage resulted from the personal act or omission of the owner, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

3. The owner shall, for the purpose of benefitting from the limitation provided for in paragraph 1, constitute a fund for the total sum representing the limit of liability established in accordance with paragraph 1 with the court or other competent authority of any one of the States Parties in which action is brought under article 38 or, if no action is brought, with any court or other competent authority in any one of the States Parties in which an action can be brought under article 38. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the law of the State Party where the fund is constituted, and considered to be adequate by the court or other competent authority.

4. Subject to the provisions of article 11, the fund shall be distributed among the claimants in proportion to the amounts of their established claims.

5. If before the fund is distributed the owner or any of the servants or agents of the owner or any person providing to the owner insurance or other financial security has as a result of the incident in question, paid compensation for damage, such person shall, up to the amount that person has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

6. The right of subrogation provided for in paragraph 5 may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for damage which such person may have paid but only to the extent that such subrogation is permitted under the applicable national law.

7. Where owners or other persons establish that they may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which the right of subrogation would have been enjoyed under paragraphs 5 or 6 had the compensation been paid before the fund was distributed, the court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce the claim against the fund.

8. Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize damage shall rank equally with other claims against the fund.

(a) The amounts mentioned in paragraph 1 shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the constitution of the fund referred to in paragraph 3. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.

(b) Nevertheless, a State Party which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9(a) may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 9(a) shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five-and-a-half milligrammes of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.

(c) The calculation mentioned in the last sentence of paragraph 9(a) and the conversion mentioned in paragraph 9(b) shall be made in such manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in paragraph 1 as would result from the application of the first two sentences of paragraph 9(a). States Parties shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 9(a), or the result of the conversion in paragraph 9(b) as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

10. For the purpose of this article the ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.

11. The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this article on the same conditions and having the same effect as if it were constituted by the owner. Such a fund may be constituted even if, under the provisions of paragraph 2, the owner is not entitled to limitation of liability, but its constitution shall in that case not prejudice the rights of any claimant against the owner.

Article 10

1. Where the owner, after an incident, has constituted a fund in accordance with article 9 and is entitled to limit liability:

(a) no person having a claim for damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim; and

(b) the court or other competent authority of any State Party shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest.

2. The foregoing shall, however, only apply if the claimant has access to the court administering the fund and the fund is actually available in respect of the claim.

Death and injury

Article 11

Claims in respect of death or personal injury have priority over other claims save to the extent that the aggregate of such claims exceeds two-thirds of the total amount established in accordance with article 9, paragraph 1.

Compulsory insurance of the owner

Article 12

1. The owner of a ship registered in a State Party and actually carrying hazardous and noxious substances shall be required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, in the sums fixed by applying the limits of liability prescribed in article 9, paragraph 1, to cover liability for damage under this Convention.

2. A compulsory insurance certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party such compulsory insurance certificate shall be issued or certified by the appropriate authority of the State of the ship’s registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of any State Party. This compulsory insurance certificate shall be in the form of the model set out in Annex I and shall contain the following particulars:

(a) name of the ship, distinctive number or letters and port of registry;

(b) name and principal place of business of the owner;

(d) type and duration of security;

(e) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established; and

(f) period of validity of certificate, which shall not be longer than the period of validity of the insurance or other security.

3. The compulsory insurance certificate shall be in the official language or languages of the issuing State. If the language used is neither English, nor French nor Spanish, the text shall include a translation into one of these languages.

4. The compulsory insurance certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship’s registry or, if the ship is not registered in a State Party, with the authority of the State issuing or certifying the certificate.

5. An insurance or other financial security shall not satisfy the requirements of this article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 4, unless the compulsory insurance certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this article.

6. The State of the ship’s registry shall, subject to the provisions of this article, determine the conditions of issue and validity of the compulsory insurance certificate.

7. Compulsory insurance certificates issued or certified under the authority of a State Party in accordance with paragraph 2 shall be accepted by other States Parties for the purposes of this Convention and shall be regarded by other States Parties as having the same force as compulsory insurance certificates issued or certified by them even if issued or certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the compulsory insurance certificate is not financially capable of meeting the obligations imposed by this Convention.

8. Any claim for compensation for damage may be brought directly against the insurer or other person providing financial security for the owner’s liability for damage. In such case the defendant may, even if the owner is not entitled to limitation of liability, benefit from the limit of liability prescribed in accordance with paragraph 1. The defendant may further invoke the defences (other than the bankruptcy or winding up of the owner) which the owner would have been entitled to invoke. Furthermore, the defendant may invoke the defence that the damage resulted from the wilful misconduct of the owner, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the owner against the defendant. The defendant shall in any event have the right to require the owner to be joined in the proceedings.

9. Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 shall be available exclusively for the satisfaction of claims under this Convention.

10. A State Party shall not permit a ship under its flag to which this article applies to trade unless a certificate has been issued under paragraph 2 or 12.

11. Subject to the provisions of this article, each State Party shall ensure, under its national law, that insurance or other security in the sums specified in paragraph 1 is in force in respect of any ship, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an offshore facility in its territorial sea.

12. If insurance or other financial security is not maintained in respect of a ship owned by a State Party, the provisions of this article relating thereto shall not be applicable to such ship, but the ship shall carry a compulsory insurance certificate issued by the appropriate authorities of the State of the ship’s registry stating that the ship is owned by that State and that the ship’s liability is covered within the limit prescribed in accordance with paragraph 1. Such a compulsory insurance certificate shall follow as closely as possible the model prescribed by paragraph 2.

Chapter III

COMPENSATION BY THE INTERNATIONAL HAZARDOUS AND NOXIOUS SUBSTANCES FUND (HNS FUND)

Establishment of the HNS Fund

Article 13

1. The International Hazardous and Noxious Substances Fund (HNS Fund) is hereby established with the following aims:

(a) to provide compensation for damage in connection with the carriage of hazardous and noxious substances by sea, to the extent that the protection afforded by chapter II is inadequate or not available; and

(b) to give effect to the related tasks set out in article 15.

2. The HNS Fund shall in each State Party be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each State Party shall recognize the Director as the legal representative of the HNS Fund.

Compensation

Article 14

1. For the purpose of fulfilling its function under article 13, paragraph 1(a), the HNS Fund shall pay compensation to any person suffering damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of chapter II:

(a) because no liability for the damage arises under chapter II;

(b) because the owner liable for the damage under chapter II is financially incapable of meeting the obligations under this Convention in full and any financial security that may be provided under chapter II does not cover or is insufficient to satisfy the claims for compensation for damage; an owner being treated as financially incapable of meeting these obligations and a financial security being treated as insufficient if the person suffering the damage has been unable to obtain full satisfaction of the amount of compensation due under chapter II after having taken all reasonable steps to pursue the available legal remedies;

2. Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize damage shall be treated as damage for the purposes of this article.

3. The HNS Fund shall incur no obligation under the preceding paragraphs if:

(a) it proves that the damage resulted from an act of war, hostilities, civil war or insurrection or was caused by hazardous and noxious substances which had escaped or been discharged from a warship or other ship owned or operated by a State and used, at the time of the incident, only on Government non-commercial service; or

(b) the claimant cannot prove that there is a reasonable probability that the damage resulted from an incident involving one or more ships.

4. If the HNS Fund proves that the damage resulted wholly or partly either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the HNS Fund may be exonerated wholly or partially from its obligation to pay compensation to such person. The HNS Fund shall in any event be exonerated to the extent that the owner may have been exonerated under article 7, paragraph 3. However, there shall be no such exoneration of the HNS Fund with regard to preventive measures.

(a) Except as otherwise provided in subparagraph (b), the aggregate amount of compensation payable by the HNS Fund under this article shall in respect of any one incident be limited, so that the total sum of that amount and any amount of compensation actually paid under chapter II for damage within the scope of application of this Convention as defined in article 3 shall not exceed 250 million units of account.

(b) The aggregate amount of compensation payable by the HNS Fund under this article for damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 250 million units of account.

(c) Interest accrued on a fund constituted in accordance with article 9, paragraph 3, if any, shall not be taken into account for the computation of the maximum compensation payable by the HNS Fund under this article.

(d) The amounts mentioned in this article shall be converted into national currency on the basis of the value of that currency with reference to the Special Drawing Right on the date of the decision of the Assembly of the HNS Fund as to the first date of payment of compensation.

6. Where the amount of established claims against the HNS Fund exceeds the aggregate amount of compensation payable under paragraph 5, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Convention shall be the same for all claimants. Claims in respect of death or personal injury shall have priority over other claims, however, save to the extent that the aggregate of such claims exceeds two-thirds of the total amount established in accordance with paragraph 5.

7. The Assembly of the HNS Fund may decide that, in exceptional cases, compensation in accordance with this Convention can be paid even if the owner has not constituted a fund in accordance with chapter II. In such cases paragraph 5(d) applies accordingly.

Related tasks of the HNS Fund

Article 15

For the purpose of fulfilling its function under article 13, paragraph 1(a), the HNS Fund shall have the following tasks

(a) to consider claims made against the HNS Fund;

(b) to prepare an estimate in the form of a budget for each calendar year of:

Expenditure:

(i) costs and expenses of the administration of the HNS Fund in the relevant year and any deficit from operations in the preceding years; and

(ii) payments to be made by the HNS Fund in the relevant year;

Income:

(iii) surplus funds from operations in preceding years, including any interest;

(iv) initial contributions to be paid in the course of the year;

(v) annual contributions if required to balance the budget; and

(vi) any other income;

(c) to use at the request of a State Party its good offices as necessary to assist that State to secure promptly such personnel, material and services as are necessary to enable the State to take measures to prevent or mitigate damage arising from an incident in respect of which the HNS Fund may be called upon to pay compensation under this Convention; and

(d) to provide, on conditions laid down in the internal regulations, credit facilities with a view to the taking of preventive measures against damage arising from a particular incident in respect of which the HNS Fund may be called upon to pay compensation under this Convention.

General provisions on contributions

Article 16

1. The HNS Fund shall have a general account, which shall be divided into sectors.

2. The HNS Fund shall, subject to article 19, paragraphs 3 and 4, also have separate accounts in respect of:

(a) oil as defined in article 1, paragraph 5(a)(i) (oil account);

(b) liquefied natural gases of light hydrocarbons with methane as the main constituent (LNG) (LNG account); and

(c) liquefied petroleum gases of light hydrocarbons with propane and butane as the main constituents (LPG) (LPG account).

3. There shall be initial contributions and, as required, annual contributions to the HNS Fund.

4. Contributions to the HNS Fund shall be made into the general account in accordance with article 18, to separate accounts in accordance with article 19 and to either the general account or separate accounts in accordance with article 20 or article 21, paragraph 5. Subject to article 19, paragraph 6, the general account shall be available to compensate damage caused by hazardous and noxious substances covered by that account, and a separate account shall be available to compensate damage caused by a hazardous and noxious substance covered by that account.

5. For the purposes of article 18, article 19, paragraph 1(a)(i), paragraph 1(a)(ii) and paragraph 1(b), article 20 and article 21, paragraph 5, where the quantity of a given type of contributing cargo received in the territory of a State Party by any person in a calendar year when aggregated with the quantities of the same type of cargo received in the same State Party in that year by any associated person or persons exceeds the limit specified in the respective subparagraphs, such a person shall pay contributions in respect of the actual quantity received by that person notwithstanding that that quantity did not exceed the respective limit.

6. “Associated person” means any subsidiary or commonly controlled entity. The question whether a person comes within this definition shall be determined by the national law of the State concerned.

General provisions on annual contributions

Article 17

1. Annual contributions to the general account and to each separate account shall be levied only as required to make payments by the account in question.

2. Annual contributions payable pursuant to articles 18, 19 and article 21, paragraph 5, shall be determined by the Assembly and shall be calculated in accordance with those articles on the basis of the units of contributing cargo received during the preceding calendar year or such other year as the Assembly may decide.

3. The Assembly shall decide the total amount of annual contributions to be levied to the general account and to each separate account. Following that decision the Director shall, in respect of each State Party, calculate for each person liable to pay contributions in accordance with article 18, article 19, paragraph 1 and paragraph 1bis, and article 21, paragraph 5, the amount of that person’s annual contribution to each account, on the basis of a fixed sum for each unit of contributing cargo reported in respect of the person during the preceding calendar year or such other year as the Assembly may decide. For the general account, the above-mentioned fixed sum per unit of contributing cargo for each sector shall be calculated pursuant to the regulations contained in Annex II to this Convention. For each separate account, the fixed sum per unit of contributing cargo referred to above shall be calculated by dividing the total annual contribution to be levied to that account by the total quantity of cargo contributing to that account.

4. The Assembly may also levy annual contributions for administrative costs and decide on the distribution of such costs between the sectors of the general account and the separate accounts.

5. The Assembly shall also decide on the distribution between the relevant accounts and sectors of amounts paid in compensation for damage caused by two or more substances which fall within different accounts or sectors, on the basis of an estimate of the extent to which each of the substances involved contributed to the damage.

Annual contributions to the general account

Article 18

1. Subject to article 16, paragraph 5, annual contributions to the general account shall be made in respect of each State Party by any person who was the receiver in that State in the preceding calendar year, or such other year as the Assembly may decide, of aggregate quantities exceeding 20,000 tonnes of contributing cargo, other than substances referred to in article 19, paragraph 1 and paragraph 1bis, which fall within the following sectors:

(a) solid bulk materials referred to in article 1, paragraph 5(a)(vii);

(b) substances referred to in paragraph 2; and

2. Annual contributions shall also be payable to the general account by persons who would have been liable to pay contributions to a separate account in accordance with article 19, paragraph 1 and paragraph 1bis, had its operation not been postponed or suspended in accordance with article 19. Each separate account the operation of which has been postponed or suspended under article 19 shall form a separate sector within the general account.

Annual contributions to separate accounts

Article 19

1. Subject to article 16, paragraph 5, annual contributions to separate accounts shall be made in respect of each State Party:

(a) in the case of the oil account,

(i) by any person who has received in that State in the preceding calendar year, or such other year as the Assembly may decide, total quantities exceeding 150,000 tonnes of contributing oil as defined in article 1, paragraph 3 of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, as amended, and who is or would be liable to pay contributions to the International Oil Pollution Compensation Fund in accordance with article 10 of that Convention; and

(ii) by any person who was the receiver in that State in the preceding calendar year, or such other year as the Assembly may decide, of total quantities exceeding 20,000 tonnes of other oils carried in bulk listed in appendix I of Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended;

(b) in the case of the LPG account, by any person who in the preceding calendar year, or such other year as the Assembly may decide, was the receiver in that State of total quantities exceeding 20,000 tonnes of LPG .

1bis(a) In the case of the LNG account, subject to article 16, paragraph 5, annual contributions to the LNG account shall be made in respect of each State Party by any person who in the preceding calendar year, or such other year as the Assembly may decide, was the receiver in that State of any quantity of LNG.

(b) However, any contributions shall be made by the person who, immediately prior to its discharge, held title to an LNG cargo discharged in a port or terminal of that State (the titleholder) where:

(i) the titleholder has entered into an agreement with the receiver that the titleholder shall make such contributions; and

(ii) the receiver has informed the State Party that such an agreement exists.

(c) If the titleholder referred to in subparagraph (b) above does not make the contributions or any part thereof, the receiver shall make the remaining contributions. The Assembly shall determine in the internal regulations the circumstances under which the titleholder shall be considered as not having made the contributions and the arrangements in accordance with which the receiver shall make any remaining contributions.

(d) Nothing in this paragraph shall prejudice any rights of recourse or reimbursement of the receiver that may arise between the receiver and the titleholder under the applicable law.

2. Subject to paragraph 3, the separate accounts referred to in paragraph 1 and paragraph 1bis above shall become effective at the same time as the general account.

3. The initial operation of a separate account referred to in article 16, paragraph 2 shall be postponed until such time as the quantities of contributing cargo in respect of that account during the preceding calendar year, or such other year as the Assembly may decide, exceed the following levels:

(a) 350 million tonnes of contributing cargo in respect of the oil account;

(b) 20 million tonnes of contributing cargo in respect of the LNG account; and

4. The Assembly may suspend the operation of a separate account if:

(a) the quantities of contributing cargo in respect of that account during the preceding calendar year fall below the respective level specified in paragraph 3; or

(b) when six months have elapsed from the date when the contributions were due, the total unpaid contributions to that account exceed ten per cent of the most recent levy to that account in accordance with paragraph 1.

5. The Assembly may reinstate the operation of a separate account which has been suspended in accordance with paragraph 4.

6. Any person who would be liable to pay contributions to a separate account the operation of which has been postponed in accordance with paragraph 3 or suspended in accordance with paragraph 4, shall pay into the general account the contributions due by that person in respect of that separate account. For the purpose of calculating future contributions, the postponed or suspended separate account shall form a new sector in the general account and shall be subject to the HNS points system defined in Annex II.

Initial contributions

Article 20

1. In respect of each State Party, initial contributions shall be made of an amount which shall, for each person liable to pay contributions in accordance with article 16, paragraph 5, articles 18, 19 and article 21, paragraph 5, be calculated on the basis of a fixed sum, equal for the general account and each separate account, for each unit of contributing cargo received in that State during the calendar year preceding that in which this Convention enters into force for that State.

2. The fixed sum and the units for the different sectors within the general account as well as for each separate account referred to in paragraph 1 shall be determined by the Assembly.

3. Initial contributions shall be paid within three months following the date on which the HNS Fund issues invoices in respect of each State Party to persons liable to pay contributions in accordance with paragraph 1.

Reports

Article 21

1. Each State Party shall ensure that any person liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article appears on a list to be established and kept up to date by the Director in accordance with the provisions of this article.

2. For the purposes set out in paragraph 1, each State Party shall communicate to the Director, at a time and in the manner to be prescribed in the internal regulations of the HNS Fund, the name and address of any person who in respect of the State is liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article, as well as data on the relevant quantities of contributing cargo for which such a person is liable to contribute in respect of the preceding calendar year.

3. For the purposes of ascertaining who are, at any given time, the persons liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article and of establishing, where applicable, the quantities of cargo to be taken into account for any such person when determining the amount of the contribution, the list shall be prima facie evidence of the facts stated therein.

4. If in a State Party there is no person liable to pay contributions in accordance with articles 18, 19 or paragraph 5 of this article, that State Party shall, for the purposes of this Convention, inform the Director of the HNS Fund thereof.

5. In respect of contributing cargo carried from one port or terminal of a State Party to another port or terminal located in the same State and discharged there, States Parties shall have the option of submitting to the HNS Fund a report with an annual aggregate quantity for each account covering all receipts of contributing cargo, including any quantities in respect of which contributions are payable pursuant to article 16, paragraph 5. The State Party shall, at the time of reporting, either:

(a) notify the HNS Fund that that State will pay the aggregate amount for each account in respect of the relevant year in one lump sum to the HNS Fund; or

(b) instruct the HNS Fund to levy the aggregate amount for each account by invoicing individual receivers, or, in the case of LNG, the titleholder if article 19, paragraph 1bis(b) is applicable, for the amount payable by each of them. If the titleholder does not make the contributions or any part thereof, the HNS Fund shall levy the remaining contributions by invoicing the receiver of the LNG cargo. These persons shall be identified in accordance with the national law of the State concerned.

Non-reporting

Article 21bis

1. Where a State Party does not fulfil its obligations under article 21, paragraph 2, and this results in a financial loss for the HNS Fund, that State Party shall be liable to compensate the HNS Fund for such loss. The Assembly shall, upon recommendation of the Director, decide whether such compensation shall be payable by a State.

2. No compensation for any incident shall be paid by the HNS Fund for damage in the territory, including the territorial sea of a State Party in accordance with article 3(a), the exclusive economic zone or other area of a State Party in accordance with article 3(b), or damage in accordance with article 3(c) in respect of a given incident or for preventive measures, wherever taken, in accordance with article 3(d), until the obligations under article 21, paragraphs 2 and 4, have been complied with in respect of that State Party for all years prior to the occurrence of an incident for which compensation is sought. The Assembly shall determine in the internal regulations of the HNS Fund the circumstances under which a State Party shall be considered as not having fulfilled these obligations.

3. Where compensation has been denied temporarily in accord-ance with paragraph 2, compensation shall be denied permanently if the obligations under article 21, paragraphs 2 and 4, have not been fulfilled within one year after the Director has notified the State Party of its failure to fulfil these obligations.

4. Any payments of contributions due to the HNS Fund shall be set off against compensation due to the debtor, or the debtor’s agents.

5. Paragraphs 2 to 4 shall not apply to claims in respect of death or personal injury.

Non-payment of contributions

Article 22

1. The amount of any contribution due under articles 18, 19, 20 or article 21, paragraph 5 and which is in arrears shall bear interest at a rate which shall be determined in accordance with the internal regulations of the HNS Fund, provided that different rates may be fixed for different circumstances.

2. Where a person who is liable to pay contributions in accordance with articles 18, 19, 20 or article 21, paragraph 5, does not fulfil the obligations in respect of any such contribution or any part thereof and is in arrears, the Director shall take all appropriate action, including court action, against such a person on behalf of the HNS Fund with a view to the recovery of the amount due. However, where the defaulting contributor is manifestly insolvent or the circumstances otherwise so warrant, the Assembly may, upon recommendation of the Director, decide that no action shall be taken or continued against the contributor.

Optional liability of states parties for the payment of contributions

Article 23

1. Without prejudice to article 21, paragraph 5, a State Party may, at the time when it signs without reservation as to ratification, acceptance or approval, or deposits its instrument of ratification, acceptance, approval or accession or at any time thereafter, declare that it assumes responsibility for obligations imposed by this Convention on any person liable to pay contributions in accordance with articles 18, 19, 20 or article 21, paragraph 5, in respect of hazardous and noxious substances received in the territory of that State. Such a declaration shall be made in writing and shall specify which obligations are assumed.

2. Where a declaration under paragraph 1 is made prior to the entry into force of this Convention in accordance with article 46, it shall be deposited with the Secretary-General who shall after the entry into force of this Convention communicate the declaration to the Director.

3. A declaration under paragraph 1 which is made after the entry into force of this Convention shall be deposited with the Director.

4. A declaration made in accordance with this article may be withdrawn by the relevant State giving notice thereof in writing to the Director. Such a notification shall take effect three months after the Director’s receipt thereof.

5. Any State which is bound by a declaration made under this article shall, in any proceedings brought against it before a competent court in respect of any obligation specified in the declaration, waive any immunity that it would otherwise be entitled to invoke.

Chapter IV

CLAIMS AND ACTIONS

Limitation of actions

Article 37

1. Rights to compensation under chapter II shall be extinguished unless an action is brought thereunder within three years from the date when the person suffering the damage knew or ought reasonably to have known of the damage and of the identity of the owner.

2. Rights to compensation under chapter III shall be extinguished unless an action is brought thereunder or a notification has been made pursuant to article 39, paragraph 7, within three years from the date when the person suffering the damage knew or ought reasonably to have known of the damage.

3. In no case, however, shall an action be brought later than ten years from the date of the incident which caused the damage.

4. Where the incident consists of a series of occurrences, the ten-year period mentioned in paragraph 3 shall run from the date of the last of such occurrences.

Jurisdiction in respect of action against the owner

Article 38

1. Where an incident has caused damage in the territory, including the territorial sea or in an area referred to in article 3(b), of one or more States Parties, or preventive measures have been taken to prevent or minimize damage in such territory including the territorial sea or in such area, actions for compensation may be brought against the owner or other person providing financial security for the owner’s liability only in the courts of any such States Parties.

2. Where an incident has caused damage exclusively outside the territory, including the territorial sea, of any State and either the conditions for application of this Convention set out in article 3(c) have been fulfilled or preventive measures to prevent or minimize such damage have been taken, actions for compensation may be brought against the owner or other person providing financial security for the owner’s liability only in the courts of:

(a) the State Party where the ship is registered or, in the case of an unregistered ship, the State Party whose flag the ship is entitled to fly; or

(b) the State Party where the owner has habitual residence or where the principal place of business of the owner is established; or

3. Reasonable notice of any action taken under paragraph 1 or 2 shall be given to the defendant.

4. Each State Party shall ensure that its courts have jurisdiction to entertain actions for compensation under this Convention.

5. After a fund under article 9 has been constituted by the owner or by the insurer or other person providing financial security in accordance with article 12, the courts of the State in which such fund is constituted shall have exclusive jurisdiction to determine all matters relating to the apportionment and distribution of the fund.

Jurisdiction in respect of action against the HNS Fund or taken by the HNS Fund

Article 39

1. Subject to the subsequent provisions of this article, any action against the HNS Fund for compensation under article 14 shall be brought only before a court having jurisdiction under article 38 in respect of actions against the owner who is liable for damage caused by the relevant incident or before a court in a State Party which would have been competent if an owner had been liable.

2. In the event that the ship carrying the hazardous or noxious substances which caused the damage has not been identified, the provisions of article 38, paragraph 1, shall apply mutatis mutandis to actions against the HNS Fund.

3. Each State Party shall ensure that its courts have jurisdiction to entertain such actions against the HNS Fund as are referred to in paragraph 1.

4. Where an action for compensation for damage has been brought before a court against the owner or the owner’s guarantor, such court shall have exclusive jurisdiction over any action against the HNS Fund for compensation under the provisions of article 14 in respect of the same damage.

5. Each State Party shall ensure that the HNS Fund shall have the right to intervene as a party to any legal proceedings instituted in accordance with this Convention before a competent court of that State against the owner or the owner’s guarantor.

6. Except as otherwise provided in paragraph 7, the HNS Fund shall not be bound by any judgement or decision in proceedings to which it has not been a party or by any settlement to which it is not a party.

7. Without prejudice to the provisions of paragraph 5, where an action under this Convention for compensation for damage has been brought against an owner or the owner’s guarantor before a competent court in a State Party, each party to the proceedings shall be entitled under the national law of that State to notify the HNS Fund of the proceedings. Where such notification has been made in accordance with the formalities required by the law of the court seized and in such time and in such a manner that the HNS Fund has in fact been in a position effectively to intervene as a party to the proceedings, any judgement rendered by the court in such proceedings shall, after it has become final and enforceable in the State where the judgement was given, become binding upon the HNS Fund in the sense that the facts and findings in that judgement may not be disputed by the HNS Fund even if the HNS Fund has not actually intervened in the proceedings.

Recognition and enforcement

Article 40

1. Any judgement given by a court with jurisdiction in accordance with article 38, which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognized in any State Party, except:

(a) where the judgement was obtained by fraud; or

(b) where the defendant was not given reasonable notice and a fair opportunity to present the case.

2. A judgement recognized under paragraph 1 shall be enforceable in each State Party as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.

3. Subject to any decision concerning the distribution referred to in article 14, paragraph 6, any judgement given against the HNS Fund by a court having jurisdiction in accordance with article 39, paragraphs 1 and 3 shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each State Party.

Subrogation and recourse

Article 41

1. The HNS Fund shall, in respect of any amount of compensation for damage paid by the HNS Fund in accordance with article 14, paragraph 1, acquire by subrogation the rights that the person so compensated may enjoy against the owner or the owner’s guarantor.

2. Nothing in this Convention shall prejudice any rights of recourse or subrogation of the HNS Fund against any person, including persons referred to in article 7, paragraph 2(d), other than those referred to in the previous paragraph, in so far as they can limit their liability. In any event the right of the HNS Fund to subrogation against such persons shall not be less favourable than that of an insurer of the person to whom compensation has been paid.

3. Without prejudice to any other rights of subrogation or recourse against the HNS Fund which may exist, a State Party or agency thereof which has paid compensation for damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

Chapter VI

FINAL CLAUSES

Signature, ratification, acceptance, approval and accession

Article 45

1. This Protocol shall be open for signature at the Headquarters of the Organization from 1 November 2010 to 31 October 2011 and shall thereafter remain open for accession.

2. Subject to the provisions in paragraphs 4 and 5, States may express their consent to be bound by this Protocol by:

(a) signature without reservation as to ratification, acceptance or approval; or

(b) signature subject to ratification, acceptance or approval followed by ratification, acceptance or approval; or

3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General.

4. An expression of consent to be bound by this Protocol shall be accompanied by the submission to the Secretary-General of data on the total quantities of contributing cargo liable for contributions received in that State during the preceding calendar year in respect of the general account and each separate account.

5. An expression of consent which is not accompanied by the data referred to in paragraph 4 shall not be accepted by the Secretary-General.

6. Each State which has expressed its consent to be bound by this Protocol shall annually thereafter on or before 31 May until this Protocol enters into force for that State, submit to the Secretary-General data on the total quantities of contributing cargo liable for contributions received in that State during the preceding calendar year in respect of the general account and each separate account.

7. A State which has expressed its consent to be bound by this Protocol and which has not submitted the data on contributing cargo required under paragraph 6 for any relevant years shall, before the entry into force of the Protocol for that State, be temporarily suspended from being a Contracting State until it has submitted the required data.

8. A State which has expressed its consent to be bound by the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 shall be deemed to have withdrawn this consent on the date on which it has signed this Protocol or deposited an instrument of ratification, acceptance, approval or accession in accordance with paragraph 2.

Amendment of limits

Article 48

1. Without prejudice to the provisions of article 47, the special procedure in this article shall apply solely for the purposes of amending the limits set out in article 9, paragraph 1, and article 14, paragraph 5, of the Convention, as amended by this Protocol.

2. Upon the request of at least one half, but in no case less than six, of the States Parties, any proposal to amend the limits specified in article 9, paragraph 1, and article 14, paragraph 5, of the Convention, as amended by this Protocol, shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States.

3. Any amendment proposed and circulated in accordance with paragraph 2 shall be submitted to the Legal Committee of the Organization (the Legal Committee) for consideration at a date at least six months after the date of its circulation.

4. All Contracting States, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.

5. Amendments shall be adopted by a two-thirds majority of the Contracting States present and voting in the Legal Committee, expanded as provided in paragraph 4, on condition that at least one half of the Contracting States shall be present at the time of voting.

6. When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents, in particular the amount of damage resulting therefrom, changes in the monetary values, and the effect of the proposed amendment on the cost of insurance. It shall also take into account the relationship between the limits established in article 9, paragraph 1, and those in article 14, paragraph 5, of the Convention, as amended by this Protocol.

(a) No amendment of the limits under this article may be considered less than five years from the date this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this article.

(b) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature.

(c) No limit may be increased so as to exceed an amount which corresponds to a limit laid down in this Protocol multiplied by three.

8. Any amendment adopted in accordance with paragraph 5 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period no less than one-fourth of the States which were Contracting States at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect.

9. An amendment deemed to have been accepted in accordance with paragraph 8 shall enter into force eighteen months after its acceptance.

10. All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with article 49, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

11. When an amendment has been adopted but the eighteen-month period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 8. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.

Winding up of the HNS Fund

Article 52

1. If this Protocol ceases to be in force, the HNS Fund shall nevertheless:

(a) meet its obligations in respect of any incident occurring before this Protocol ceased to be in force; and

(b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under (a), including expenses for the administration of the HNS Fund necessary for this purpose.

2. The Assembly shall take all appropriate measures to complete the winding up of the HNS Fund including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the HNS Fund.

3. For the purposes of this article the HNS Fund shall remain a legal person.

ANNEX I

CERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF LIABILITY FOR DAMAGE CAUSED BY HAZARDOUS AND NOXIOUS SUBSTANCES (HNS)

Issued in accordance with the provisions of Article 12 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010

Name of ship	Distinctive number or letters	IMO ship identification number	Port of registry	Name and full address of the principal place of business of the owner

This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article 12 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010.

Type of security

Duration of security

Name and address of the insurer(s) and/or guarantor(s)

Name

Address

...........................................................................................................................

This certificate is valid until

Issued or certified by the Government of

...........................................................................................................................

(Full designation of the State)

At ..................................... On ..........................................

(Place) (Date)

	..........................................
	Signature and Title of issuing or certifying official

Explanatory Notes:

1. If desired, the designation of the State may include a reference to the competent public authority of the country where the certificate is issued.

2. If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated.

3. If security is furnished in several forms, these should be enumerated.

4. The entry “Duration of the Security” must stipulate the date on which such security takes effect.

5. The entry “Address” of the insurer(s) and/or guarantor(s) must indicate the principal place of business of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated.

ANNEX II

REGULATIONS FOR THE CALCULATION OF ANNUAL CONTRIBUTIONS TO THE GENERAL ACCOUNT

Regulation 1

1 The fixed sum referred to in article 17, paragraph 3 shall be determined for each sector in accordance with these regulations.

2 When it is necessary to calculate contributions for more than one sector of the general account, a separate fixed sum per unit of contributing cargo shall be calculated for each of the following sectors as may be required:

(a) solid bulk materials referred to in article 1, paragraph 5(a)(vii);

(b) oil, if the operation of the oil account is postponed or suspended;

(d) LPG, if the operation of the LPG account is postponed or suspended;

(e) other substances.

Regulation 2

1 For each sector, the fixed sum per unit of contributing cargo shall be the product of the levy per HNS point and the sector factor for that sector.

2 The levy per HNS point shall be the total annual contributions to be levied to the general account divided by the total HNS points for all sectors.

3 The total HNS points for each sector shall be the product of the total volume, measured in metric tonnes, of contributing cargo for that sector and the corresponding sector factor.

4 A sector factor shall be calculated as the weighted arithmetic average of the claims/volume ratio for that sector for the relevant year and the previous nine years, according to this regulation.

5 Except as provided in paragraph 6, the claims/volume ratio for each of these years shall be calculated as follows:

(a) established claims, measured in units of account converted from the claim currency using the rate applicable on the date of the incident in question, for damage caused by substances in respect of which contributions to the HNS Fund are due for the relevant year; divided by

(b) the volume of contributing cargo corresponding to the relevant year.

6 In cases where the information required in paragraphs 5(a) and (b) is not available, the following values shall be used for the claims/volume ratio for each of the missing years:

(a) solid bulk materials referred to in article 1, paragraph 5(a)(vii) 0

(b) oil, if the operation of the oil account is postponed 0

(d) LPG, if the operation of the LPG account is postponed 0

(e) other substances 0.0001

7 The arithmetic average of the ten years shall be weighted on a decreasing linear scale, so that the ratio of the relevant year shall have a weight of 10, the year prior to the relevant year shall have a weight of 9, the next preceding year shall have a weight of 8, and so on, until the tenth year has a weight of 1.

8 If the operation of a separate account has been suspended, the relevant sector factor shall be calculated in accordance with those provisions of this regulation which the Assembly shall consider appropriate.

PART 2

Text of declarations made under Article 5 of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010.

1. The Convention does not apply to ships that carry hazardous and noxious substances only in packaged form and that do not exceed 200 gross tonnage, while those ships are engaged on voyages between ports or facilities in Canada.

Published under authority of the Speaker of the House of Commons

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AVIATION INDUSTRY INDEMNITY ACT