Marine Liability Act

Link to law: http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2001_6/FullText.html

Marine Liability Act

S.C. 2001, c. 6

Assented to 2001-05-10

An Act respecting marine liability, and to validate certain by-laws and regulations

SUMMARY

This enactment consolidates certain rules of Canadian maritime law governing the civil liability of shipowners for loss of life, personal injuries and damage to property.

Part 1 modernizes and extends the scope of the fatal accidents regime formerly in the Canada Shipping Act.

Part 2 settles the rules for the apportionment of liability among parties at fault.

Part 3 continues in force in Canada an international convention governing the limitation of liablity for maritime claims together with certain statutory provisions.

Part 4 implements the regime of shipowners’ liability to passengers set out in another international convention.

Part 5 re-enacts and revises the provisions of the Carriage of Goods by Water Act respecting the application of the Hague-Visby Rules in Canada and the eventual implementation of the Hamburg Rules.

Part 6 continues the existing regime governing liability and compensation for maritime oil pollution.

Part 7 validates certain by-laws relating to harbour dues tariffs and certain regulations relating to pilotage tariffs.

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

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Marine Liability Act.

INTERPRETATION

Marginal note:Definitions

2. The definitions in this section apply in this Act.

“Admiralty Court”

« Cour d’amirauté »

“Admiralty Court” means the Federal Court.

“Minister”

« ministre »

“Minister” means the Minister of Transport.

HER MAJESTY

Marginal note:Binding on Her Majesty

3. This Act is binding on Her Majesty in right of Canada or a province.

PART 1 PERSONAL INJURIES AND FATALITIES

Interpretation and Application

Definition of “dependant”

4. In this Part, “dependant”, in relation to an injured or deceased person, means an individual who was one of the following in relation to the injured or deceased person at the time the cause of action arose, in the case of an injured person, or at the time of death, in the case of a deceased person:

(a) a son, daughter, stepson, stepdaughter, grandson, granddaughter, adopted son or daughter, or an individual for whom the injured or deceased person stood in the place of a parent;

(b) a spouse, or an individual who was cohabiting with the injured or deceased person in a conjugal relationship having so cohabited for a period of at least one year; or

(c) a brother, sister, father, mother, grandfather, grandmother, stepfather, stepmother, adoptive father or mother, or an individual who stood in the place of a parent.

Marginal note:Application of this Part

5. This Part applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law, as defined in the Federal Court Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping.

Liability to Dependants

Marginal note:Damages for personal injury

6. (1) If a person is injured by the fault or neglect of another under circumstances that entitle the person to recover damages, the dependants of the injured person may maintain an action in a court of competent jurisdiction for their loss resulting from the injury against the person from whom the injured person is entitled to recover.

Marginal note:Damages for death

(2) If a person dies by the fault or neglect of another under circumstances that would have entitled the person, if not deceased, to recover damages, the dependants of the deceased person may maintain an action in a court of competent jurisdiction for their loss resulting from the death against the person from whom the deceased person would have been entitled to recover.

Marginal note:Inclusion in damages

(3) The damages recoverable by a dependant of an injured or deceased person may include

(a) an amount to compensate for the loss of guidance, care and companionship that the dependant could reasonably have expected to receive from the injured or deceased person if the injury or death had not occurred; and

(b) any amount to which a public authority may be subrogated in respect of payments consequent on the injury or death that are made to or for the benefit of the injured or deceased person or the dependant.

Marginal note:Excluded factors

(4) In the assessment of damages, any amount paid or payable on the death of the deceased person or any future premiums payable under a contract of insurance shall not be taken into account.

Marginal note:Apportionment

(5) The damages recoverable by a dependant are subject to any apportionment made under Part 2.

Marginal note:Multiple dependants

7. Damages may be awarded to dependants in proportion to their loss resulting from the injury or death, and the amount so awarded shall be divided among the dependants in the shares determined by the court.

Marginal note:Payment into court

8. A person against whom an action is commenced under this Part may pay into court an amount of money as compensation for the fault or neglect to all persons entitled to damages without specifying the shares into which it is to be divided.

Marginal note:Postponement of distribution

9. The court may in its discretion postpone the distribution of any amount to which a person under the age of eighteen or under a legal disability is entitled, may order its payment from the amount paid into court under section 8 and may make any other order that is in the interest of that person.

Marginal note:Beneficiaries of action

10. (1) An action under this Part shall be for the benefit of the dependants of the injured or deceased person.

Marginal note:By whom action is brought

(2) An action under subsection 6(2) shall be brought by the executor or administrator of the deceased person, but if no action is brought within six months after that person’s death or if there is no executor or administrator, the action

(a) may be brought by any or all of the dependants of the deceased person; and

(b) shall be subject to the same procedure, with any adaptations that may be required, as if it were brought by an executor or administrator.

Marginal note:Parties to action

11. A person who commences an action under this Part shall

(a) take reasonable steps to identify and join as parties to the action all persons who are entitled or who claim to be entitled to damages as dependants of the injured or deceased person; and

(b) state in the statement of claim the grounds for the claim of each person on whose behalf the action is commenced.

Marginal note:One action for same cause

12. Claims for the benefit of the dependants of an injured or deceased person may be made in more than one action but, on the application of any party, actions for the benefit of the dependants of the same injured or deceased person may be consolidated in one action or tried together in the same court of competent jurisdiction.

Marginal note:Actions by different claimants

13. If actions are commenced for the benefit of two or more persons claiming to be entitled to damages under this Part as dependants of an injured or deceased person, the court may make any order or determination that it considers just.

Marginal note:Limitation period

14. (1) No action may be commenced under subsection 6(1) later than two years after the cause of action arose.

Marginal note:Limitation period

(2) No action may be commenced under subsection 6(2) later than two years after the death of the deceased person.

PART 2 APPORTIONMENT OF LIABILITY

Interpretation and Application

Definition of “earnings”

15. (1) In this Part, “earnings” includes freight, passage money and hire.

Marginal note:Meaning of loss caused by ship

(2) For the purposes of this Part, a reference to loss caused by the fault or neglect of a ship shall be construed as including

(a) any salvage expenses consequent on that fault or neglect; and

(b) any other expenses consequent on that fault or neglect and recoverable at law by way of damages, other than a loss described in subsection 17(3).

Marginal note:Application of this Part

16. This Part applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law, as defined in the Federal Court Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping.

General

Marginal note:Apportionment based on degree of fault

17. (1) Where loss is caused by the fault or neglect of two or more persons or ships, their liability is proportionate to the degree to which they are respectively at fault or negligent and, if it is not possible to determine different degrees of fault or neglect, their liability is equal.

Marginal note:Joint and several liability

(2) Subject to subsection (3), the persons or ships that are at fault or negligent are jointly and severally liable to the persons or ships suffering the loss but, as between themselves, they are liable to make contribution to each other or to indemnify each other in the degree to which they are respectively at fault or negligent.

Marginal note:Exception — loss of ships and property

(3) Where, by the fault or neglect of two or more ships, loss is caused to one or more of those ships, their cargo or other property on board, or loss of earnings results to one or more of those ships, their liability to make good such loss is not joint and several.

Marginal note:Persons responsible

(4) In this section, a reference to liability of a ship that is at fault or negligent includes liability of any person responsible for the navigation and management of the ship or any other person responsible for the fault or neglect of the ship.

Marginal note:Claim for contribution or indemnity

18. A person who is entitled to claim contribution or indemnity under this Part from another person or ship that is or may be liable in respect of a loss may do so

(a) by adding the other person or ship as a party to a proceeding pending before a court or an administrative or arbitral tribunal of competent jurisdiction, in accordance with the applicable rules of procedure or arbitration agreement;

(b) by commencing a proceeding in a court or an administrative or arbitral tribunal of competent jurisdiction; or

(c) if the other person or ship has settled with the person suffering the loss, by commencing or continuing a proceeding before a court or an administrative or arbitral tribunal of competent jurisdiction.

Marginal note:Adjustment of settlement

19. The court or administrative or arbitral tribunal in which a proceeding is continued or commenced under paragraph 18(c) may deny the award of damages or adjust the amount awarded if it is not satisfied that the settlement was reasonable.

Marginal note:Limitation period

20. (1) No claim may be made under section 18 later than one year after the date of judgment in the proceeding or the date of the settlement agreement.

Marginal note:Claims not defeated

(2) A claim under section 18 is not defeated by any period of limitation or prescription, or by any requirement for notice, that is applicable to the original claim in respect of which contribution or indemnity is sought.

Marginal note:Last clear chance

21. This Part applies notwithstanding that a person who suffered a loss had the opportunity to avoid the loss and failed to do so.

Marginal note:Contractual rights

22. The rights conferred by this Part on a person or ship that is found liable or that settles a claim are subject to any existing contract between that person or ship and a person from whom contribution or indemnity is claimed.

Limitation of Time

Marginal note:Limitation period for claim or lien

23. (1) No action may be commenced later than two years after the loss or injury arose to enforce a claim or lien against a ship in collision or its owners in respect of any loss to another ship, its cargo or other property on board, or any loss of earnings of that other ship, or for damages for loss of life or personal injury suffered by any person on board that other ship, caused by the fault or neglect of the former ship, whether that ship is wholly or partly at fault or negligent.

Marginal note:Extension of time by court

(2) A court having jurisdiction to deal with an action referred to in subsection (1)

(a) may, in accordance with the rules of court, extend the period referred to in that subsection to the extent and on the conditions that it thinks fit; and

(b) shall, if satisfied that there has not during that period been a reasonable opportunity of arresting the ship within the jurisdiction of the court, or within the territorial waters of the country to which the claimant’s ship belongs or in which the claimant resides or has their principal place of business, extend that period to an extent sufficient to provide that reasonable opportunity.

Definition of “owner”

(3) In this section, “owner”, in relation to a ship, includes any person responsible for the navigation and management of the ship or any other person responsible for the fault or neglect of the ship.

PART 3 LIMITATION OF LIABILITY FOR MARITIME CLAIMS

Interpretation

Marginal note:Definitions

24. The definitions in this section apply in this Part.

“Convention”

« Convention »

“Convention” means the Convention on Limitation of Liability for Maritime Claims, 1976, concluded at London on November 19, 1976, as amended by the Protocol, Articles 1 to 15 of which Convention are set out in Part 1 of Schedule 1 and Article 18 of which is set out in Part 2 of that Schedule.

“maritime claim”

« créance maritime »

“maritime claim” means a claim described in Article 2 of the Convention for which a person referred to in Article 1 of the Convention is entitled to limitation of liability.

“Protocol”

« Protocole »

“Protocol” means the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976, concluded at London on May 2, 1996, Articles 8 and 9 of which are set out in Part 2 of Schedule 1.

Marginal note:Extended meaning of expressions

25. (1) For the purposes of this Part and Articles 1 to 15 of the Convention,

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

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

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

but does not include an air cushion vehicle or a floating platform constructed for the purpose of exploring or exploiting the natural resources or the subsoil of the sea-bed;

(b) the definition “shipowner” in paragraph 2 of Article 1 of the Convention shall be read without reference to the word “seagoing” and as including any person who has an interest in or possession of a ship from and including its launching; and

(c) the expression “carriage by sea” in paragraph 1(b) of Article 2 of the Convention shall be read as “carriage by water”.

Marginal note:Inconsistency

(2) In the event of any inconsistency between sections 28 to 34 of this Act and Articles 1 to 15 of the Convention, those sections prevail to the extent of the inconsistency.

Application

Marginal note:Force of law

26. Subject to the other provisions of this Part, Articles 1 to 15 of the Convention have the force of law in Canada.

Marginal note:State Party to the Convention

27. For purposes of the application of the Convention, Canada is a State Party to the Convention.

Marginal note:Liability for ships under 300 tons

28. (1) The maximum liability for maritime claims that arise on any distinct occasion involving a ship with a gross tonnage of less than 300 tons, other than claims mentioned in section 29, is

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

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

Marginal note:Calculation of tonnage

(2) For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969, concluded at London on June 23, 1969, including any amendments, whenever made, to the Annexes or Appendix to that Convention.

Marginal note:Passenger claims, no certificate

29. (1) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to passengers of a ship for which no certificate is required under Part V of the Canada Shipping Act is the greater of

(a) 2,000,000 units of account; and

(b) the number of units of account calculated by multiplying 175,000 units of account by the number of passengers on board the ship.

Marginal note:Passenger claims, no contract of carriage

(2) Notwithstanding Article 6 of the Convention, the maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to persons carried on a ship otherwise than under a contract of passenger carriage is the greater of

(a) 2,000,000 units of account, and

(b) 175,000 units of account multiplied by

(i) the number of passengers that the ship is authorized to carry according to its certificate under Part V of the Canada Shipping Act, or

(ii) if no certificate is required under that Part, the number of persons on board the ship.

Marginal note:Exception

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

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

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

Definition of “passenger”

(4) In subsection (1), “passenger” means a person carried on a ship in circumstances described in paragraph 2(a) or (b) of Article 7 of the Convention.

Definition of “unit of account”

(5) In subsections (1) and (2), “unit of account” means a special drawing right issued by the International Monetary Fund.

Liability of Owners of Docks, Canals and Ports

Marginal note:Limitation of liability

30. (1) The maximum liability of an owner of a dock, canal or port, for a claim that arises on any distinct occasion for loss caused to a ship, or to any cargo or other property on board a ship, is the greater of

(a) $2,000,000, and

(b) the amount calculated by multiplying $1,000 by the number of tons of the gross tonnage of the largest ship that is at the time of the loss, or had been within a period of five years before that time, within the area of the dock, canal or port over which the owner had control or management.

Marginal note:Calculation of tonnage

(2) For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in the manner described in subsection 28(2).

Marginal note:Application

(3) The maximum liability specified in subsection (1) also applies to any person for whose act or omission the owner is responsible.

Marginal note:Conduct barring limitation

(4) This section does not apply to an owner, or a person for whose act or omission the owner is responsible, if it is proved that the loss resulted from the personal act or omission of that owner or that person, as the case may be, committed with intent to cause the loss or recklessly and with knowledge that the loss would probably result.

Marginal note:Meaning of terms

(5) For the purposes of this section,

(a) “dock” includes wet docks and basins, tidal-docks and basins, locks, cuts, entrances, dry docks, graving docks, gridirons, slips, quays, wharfs, piers, stages, landing places, jetties and synchrolifts; and

(b) “owner of a dock, canal or port” includes any person or authority having the control or management of the dock, canal or port and any ship repairer using the dock, canal or port.

Amendment of Maximum Liability

Marginal note:Amendment of limits

31. (1) The Governor in Council may, by order, declare that an amendment made in accordance with Article 8 of the Protocol to any of the limits of liability specified in paragraph 1 of Article 6 or paragraph 1 of Article 7 of the Convention has the force of law in Canada.

Marginal note:Amendment of sections 28, 29 and 30

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

Procedure

Marginal note:Jurisdiction of Admiralty Court

32. (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under Articles 11 to 13 of the Convention.

Marginal note:Right to assert limitation defence

(2) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28, 29 or 30 of this Act or paragraph 1 of Article 6 or 7 of the Convention, that person may assert the right to limitation of liability in a defence filed, or by way of action or counterclaim for declaratory relief, in any court of competent jurisdiction in Canada.

Marginal note:Powers of Admiralty Court

33. (1) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28 or 29 of this Act or paragraph 1 of Article 6 or 7 of the Convention, the Admiralty Court, on application by that person or any other interested person, including a person who is a party to proceedings in relation to the same subject-matter before another court, tribunal or authority, may take any steps it considers appropriate, including

(a) determining the amount of the liability and providing for the constitution and distribution of a fund under Articles 11 and 12 of the Convention;

(b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within a certain time, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs; and

(c) enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than the Admiralty Court in relation to the same subject-matter.

Marginal note: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.

Marginal note:Lien and other rights

(3) No lien or other right in respect of a ship or other property affects the proportions in which a fund is distributed by the Admiralty Court.

Marginal note:Procedural matters

(4) The Admiralty Court may

(a) make any rule of procedure 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 2 of Article 11 of the Convention.

Marginal note:Interest

(5) For the purposes of Article 11 of the Convention, interest is payable 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.

Marginal note:Release of ships, etc.

34. (1) Where a ship or other property is released under paragraph 2 of Article 13 of the Convention, in any case other than one in which a fund has been constituted in a place described in paragraphs (a) to (d) of that Article, the person who applied for the release is deemed to have submitted to the jurisdiction of the court that ordered the release for the purpose of determining the claim.

Marginal note:Limitation fund in state other than Canada

(2) In considering whether to release a ship or other property referred to in subsection (1), the court shall not have regard to a limitation fund constituted in a country other than Canada unless the court is satisfied that the country is a State Party to the Convention.

PART 4 LIABILITY FOR CARRIAGE OF PASSENGERS BY WATER

Interpretation

Marginal note:Definitions

35. The definitions in this section apply in this Part.

“Convention”

« Convention »

“Convention” means the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded at Athens on December 13, 1974, as amended by the Protocol, Articles 1 to 22 of which Convention are set out in Part 1 of Schedule 2.

“Protocol”

« Protocole »

“Protocol” means the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded at London on March 29, 1990, Articles III and VIII of which are set out in Part 2 of Schedule 2.

Marginal note:Extended meaning of expressions

36. (1) For the purposes of this Part and Articles 1 to 22 of the Convention,

(a) the definition “ship” in Article 1 of the Convention shall be read as including any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion and whether seagoing or not, but not including an air cushion vehicle; and

(b) in the definition “contract of carriage” in Article 1 of the Convention, the expression “carriage by sea” shall be read as “carriage by water”.

Marginal note:Owners of ships

(2) For greater certainty, in the application of the Convention under this Part, Article 19 of the Convention applies to owners of all ships, whether seagoing or not.

Application

Marginal note:Force of law

37. (1) Articles 1 to 22 of the Convention have the force of law in Canada.

Marginal note:Extended application

(2) Articles 1 to 22 of the Convention also apply in respect of

(a) the carriage by water, under a contract of carriage, of passengers or of passengers and their luggage from one place in Canada to the same or another place in Canada, either directly or by way of a place outside Canada; and

(b) the carriage by water, otherwise than under a contract of carriage, of persons or of persons and their luggage, excluding

(i) the master of a ship, a member of a ship’s crew or any other person employed or engaged in any capacity on board a ship on the business of the ship, and

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

Marginal note:State Party to the Convention

38. For purposes of the application of the Convention, Canada is a State Party to the Convention.

Regulations and Orders

Marginal note:Regulations

39. The Governor in Council may make regulations requiring insurance or other financial security to be maintained to cover liability to passengers under this Part.

Marginal note:Amendment of limits

40. The Governor in Council may, by order, declare that an amendment made in accordance with Article VIII of the Protocol to any of the limits of liability specified in paragraph 1 of Article 7 or in Article 8 of the Convention, including the deductibles referred to in Article 8, has the force of law in Canada.

PART 5 LIABILITY FOR CARRIAGE OF GOODS BY WATER

Interpretation

Marginal note:Definitions

41. The definitions in this section apply in this Part.

“Hague-Visby Rules”

« règles de La Haye-Visby »

“Hague-Visby Rules” means the rules set out in Schedule 3 and embodied in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, concluded at Brussels on August 25, 1924, in the Protocol concluded at Brussels on February 23, 1968, and in the additional Protocol concluded at Brussels on December 21, 1979.

“Hamburg Rules”

« règles de Hambourg »

“Hamburg Rules” means the rules set out in Schedule 4 and embodied in the United Nations Convention on the Carriage of Goods by Sea, 1978, concluded at Hamburg on March 31, 1978.

Marginal note:Other statutory limitations of liability

42. Nothing in this Part affects the operation of any other Part of this Act, or sections 389, 390, 585 and 586 of the Canada Shipping Act, or a provision of any other Act or regulation that limits the liability of owners of ships.

Hague-Visby Rules

Marginal note:Effect

43. (1) The Hague-Visby Rules have the force of law in Canada in respect of contracts for the carriage of goods by water between different states as described in Article X of those Rules.

Marginal note:Extended application

(2) The Hague-Visby Rules also apply in respect of contracts for the carriage of goods by water from one place in Canada to another place in Canada, either directly or by way of a place outside Canada, unless there is no bill of lading and the contract stipulates that those Rules do not apply.

Marginal note:Meaning of “Contracting State”

(3) For the purposes of this section, the expression “Contracting State” in Article X of the Hague-Visby Rules includes Canada and any state that, without being a Contracting State, gives the force of law to the rules embodied in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, concluded at Brussels on August 25, 1924 and in the Protocol concluded at Brussels on February 23, 1968, regardless of whether that state gives the force of law to the additional Protocol concluded at Brussels on December 21, 1979.

Marginal note:Replacement by Hamburg Rules

(4) The Hague-Visby Rules do not apply in respect of contracts entered into after the coming into force of section 45.

Hamburg Rules

Marginal note:Report to Parliament

44. The Minister shall, before January 1, 2005 and every five years afterwards, consider whether the Hague-Visby Rules should be replaced by the Hamburg Rules and cause a report setting out the results of that consideration to be laid before each House of Parliament.

Marginal note:Effect

45. (1) The Hamburg Rules have the force of law in Canada in respect of contracts for the carriage of goods by water between different states as described in Article 2 of those Rules.

Marginal note:Extended application

(2) The Hamburg Rules also apply in respect of contracts for the carriage of goods by water from one place in Canada to another place in Canada, either directly or by way of a place outside Canada, unless the contract stipulates that those Rules do not apply.

Marginal note:Meaning of “Contracting State”

(3) For the purposes of this section, the expression “Contracting State” in Article 2 of the Hamburg Rules includes Canada and any state that gives the force of law to those Rules without being a Contracting State to the United Nations Convention on the Carriage of Goods by Sea, 1978.

Marginal note:References to “sea”

(4) For the purposes of this section, the word “sea” in the Hamburg Rules shall be read as “water”.

Marginal note:Signatures

(5) For the purposes of this section, paragraph 3 of article 14 of the Hamburg Rules applies in respect of the documents referred to in article 18 of those Rules.

Institution of Proceedings in Canada

Marginal note:Claims not subject to Hamburg Rules

46. (1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where

(a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada;

(b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or

(c) the contract was made in Canada.

Marginal note:Agreement to designate

(2) Notwithstanding subsection (1), the parties to a contract referred to in that subsection may, after a claim arises under the contract, designate by agreement the place where the claimant may institute judicial or arbitral proceedings.

PART 6 LIABILITY AND COMPENSATION FOR POLLUTION

Interpretation

Marginal note:Definitions

47. The definitions in this section apply in this Part.

“Administrator”

« administrateur »

“Administrator” means the Administrator of the Ship-source Oil Pollution Fund appointed under section 79.

“Civil Liability Convention”

« Convention sur la responsabilité civile »

“Civil Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, concluded at Brussels on November 29, 1969, as amended by the Protocol concluded at London on November 19, 1976 and the Protocol concluded at London on November 27, 1992.

“Convention ship”

« navire assujetti à la Convention »

“Convention ship” means a seagoing ship, wherever registered,

(a) carrying, in bulk as cargo, crude oil, fuel oil, heavy diesel oil, lubricating oil or any other persistent hydrocarbon mineral oil; or

(b) on a voyage following any such carriage of such oil, unless it is proved that there is no residue of the oil on board.

“discharge”

« rejet »

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

“Fund Convention”

« Convention sur le Fonds international »

“Fund Convention” means the International Convention on the Establishment of the International Fund for Compensation for Oil Pollution Damage, concluded at Brussels on December 18, 1971, as amended by the Protocol concluded at London on November 19, 1976 and the Protocol concluded at London on November 27, 1992.

“guarantor”

« garant »

“guarantor” means a guarantor under a contract of liability insurance or other similar security relating to a shipowner’s liability under section 51.

“in bulk”

« en vrac »

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

“International Fund”

« Fonds international »

“International Fund” means the International Oil Pollution Compensation Fund established by the Fund Convention.

“Limitation of Liability Convention”

« Convention sur la limitation de responsabilité »

“Limitation of Liability Convention” has the meaning ascribed to the word “Convention” in section 24.

“oil”

« hydro­carbures »

“oil”, except in sections 93 to 99, means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.

“oil pollution damage”

« dommages dus à la pollution par les hydrocarbures »

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

“owner”

« propriétaire »

“owner” means

(a) in relation to a Convention ship, the person who is registered as the owner of the ship or, if no person is so registered,

(i) the person who owns the ship, or

(ii) if the ship is owned by a state and operated by a company that is registered as the ship’s operator in that state, that company; or

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

“pollutant”

« polluant »

“pollutant” means

(a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or plant that is useful to humans; and

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

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

“pollution damage”

« dommages dus à la pollution »

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

“ship”

« navire »

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

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

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

“Ship-source Oil Pollution Fund”

« Caisse d’indemnisation »

“Ship-source Oil Pollution Fund” means the Ship-source Oil Pollution Fund established by section 77.

Application

Marginal note:Geographical application — general

48. (1) For ships other than Convention ships, this Part applies in respect of actual or anticipated pollution damage, irrespective of the location of the actual or anticipated discharge of the pollutant and irrespective of the location where any preventive measures are taken,

(a) on the territory of Canada or in Canadian waters; or

(b) in the exclusive economic zone of Canada.

Marginal note:Geographical application — Convention ships

(2) For Convention ships, this Part applies, subject to subsection (3), in respect of actual or anticipated oil pollution damage, irrespective of the location of the actual or anticipated discharge of the oil and irrespective of the location where any preventive measures are taken,

(a) on the territory of Canada or in Canadian waters;

(b) in the exclusive economic zone of Canada;

(c) 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

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

Marginal note:Exception

(3) Sections 84 and 85 do not apply in respect of actual or anticipated oil pollution damage in an area described in paragraph (2)(c) or (d).

Marginal note:Exception — drilling activities

49. (1) This Part does not apply to a drilling ship that is on location and engaged in the exploration or exploitation of the sea-bed or its subsoil in so far as a discharge of a pollutant emanates from those activities.

Marginal note:Exception — floating storage units

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

Marginal note:Priority over Arctic Waters Pollution Prevention Act

50. In the event of an inconsistency between the provisions of this Part and the provisions of the Arctic Waters Pollution Prevention Act or any regulations made under that Act, the provisions of this Part prevail to the extent of the inconsistency.

Division 1Civil Liability for Pollution

Owners of Ships

Marginal note:Liability for pollution and related costs

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

(a) for oil pollution damage from the ship;

(b) for costs and expenses incurred by

(i) the Minister of Fisheries and Oceans,

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

(iii) any other person in Canada, or

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

in respect of measures taken to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from the ship, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and

(c) for costs and expenses incurred

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

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

to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

Marginal note:Liability for environmental damage

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

Marginal note:Strict liability subject to certain defences

(3) The owner’s liability under subsection (1) does not depend on proof of fault or negligence, but the owner is not liable under that subsection if the owner establishes that the occurrence

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

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

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

Marginal note:Owner’s rights against third parties

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

Marginal note:Owner’s own claim for costs and expenses

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

Marginal note:Limitation period

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

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

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

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

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

Marginal note:Admiralty Court has jurisdiction

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

Marginal note:Jurisdiction may be exercised in rem

(2) Subject to subsection (3), the jurisdiction conferred on the Admiralty Court by subsection (1) may be exercised in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court.

Marginal note:Exempt ships and cargoes

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

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

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

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

Marginal note:Action by Administrator

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

(a) the Administrator may, either before or after receiving a claim under section 85, commence an action in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court; and

(b) subject to subsection (3), the Administrator is entitled in any such action to claim security in an amount not less than the owner’s maximum aggregate liability under section 54 or 55.

Marginal note:Subrogation

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

Marginal note:Entitlement to claim security

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

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

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

Marginal note:Limitation of liability — Convention ships

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

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

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

Marginal note:Conduct barring limitation

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

Marginal note:Calculation of tonnage

(3) For the purpose of subsection (1), a ship’s tonnage is the gross tonnage calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969, concluded at London on June 23, 1969, including any amendments, whenever made, to the Annexes or Appendix to that Convention.

Definition of “unit of account”

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

Marginal note:Amendment of limits

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

Marginal note:Limitation of liability — other ships

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

Special Rules — Convention Ships

Marginal note:No damage in Canadian territory or Canadian waters

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

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

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

Marginal note:Remedies exclusive

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

Marginal note:Servants, etc., not liable

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

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

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

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

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

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

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

Marginal note:Owners jointly and severally liable

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

Marginal note:Shipowner’s fund

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

Marginal note:Manner in which fund to be constituted

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

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

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

Marginal note:Distribution of fund

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

Marginal note:Subrogation

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

Marginal note:Postponing distribution

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

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

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

the court may postpone the distribution of the portion of the shipowner’s fund that it considers appropriate, having regard to the possibility that such a claim might be established.

Marginal note:Duplication of actions barred

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

Marginal note:Certificate attesting to financial responsibility

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

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

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

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

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

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

Marginal note:Government-owned ship

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

Marginal note:Certificate to be carried on board

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

Marginal note:Certificate to be produced on demand

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

Marginal note:By whom certificate to be issued

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

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

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

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

Marginal note:Issuance of certificate by Minister

(2) On an application to the Minister for a certificate referred to in subsection 60(1) in respect of a Convention ship registered in Canada or registered in a state other than Canada that is not a party to the Civil Liability Convention, the Minister shall, subject to subsection (3), issue such a certificate to the owner of the ship if the Minister is satisfied that a contract of insurance or other security satisfying the requirements of Article VII of the Civil Liability Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

Marginal note:When Minister may refuse certificate

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

Marginal note:Claimant may sue owner’s guarantor

62. A claimant may commence an action against a guarantor of the owner of a Convention ship in respect of a matter referred to in subsection 51(1) and, in that event,

(a) the guarantor is entitled to establish the defences affecting the owner’s liability set out in subsection 51(3) and, in addition, may establish as a defence that the occurrence resulted from the wilful misconduct of the owner;

(b) the guarantor may not plead as a defence the bankruptcy or winding-up of the owner;

(c) irrespective of whether the owner is entitled to limitation of liability, the guarantor is entitled to limitation of liability in respect of claims made by virtue of this section to the same amount and in like manner as an owner is entitled to limitation of liability under this Part; and

(d) if the owner of a Convention ship and the guarantor each applies to the Admiralty Court in accordance with subsection 58(2) in order to limit their liability, any amount paid into court or filed as a guarantee pursuant to either application shall be treated as paid or filed also pursuant to the other application.

Registration of Foreign Judgments

Marginal note:Definitions

63. The definitions in this section apply in this section and in sections 64 to 71.

“foreign judgment”

« jugement étranger »

“foreign judgment” means a judgment of a court of a state other than Canada that is a party to the Civil Liability Convention in respect of a liability described in Article III of that Convention, resulting from an occurrence after the entry into force of that Convention for Canada.

“judgment creditor”

« bénéficiaire du jugement »

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

“judgment debtor”

« débiteur »

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

Marginal note:Registration of foreign judgments

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

Marginal note:Court may register foreign judgment

(2) On an application made under subsection (1), the Admiralty Court may, subject to subsections (3) and (4) and section 67, order the registration of the foreign judgment if it is satisfied

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

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

Marginal note:If judgment debtor appears

(3) If, under the rules of the Admiralty Court, the judgment debtor appears at the hearing of an application made under subsection (1), that Court may not order the registration of the foreign judgment if it is satisfied that

(a) the foreign judgment has been fully satisfied;

(b) the foreign court acted without jurisdiction;

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

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

Marginal note:When judgment partly satisfied

(4) On any application made under subsection (1), if the Court is satisfied that the foreign judgment has been partly satisfied, the foreign judgment shall be ordered to be registered only in respect of the balance remaining payable.

Marginal note:Pre-registration interest

65. For the purpose of section 64, a foreign judgment includes any interest, up to the day of registration, that has accrued on it under the law of the state in which it was rendered.

Marginal note:Costs

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

Marginal note:Conversion to Canadian currency

67. (1) A foreign judgment expressed in a currency other than Canadian currency cannot be registered under section 64 until the Admiralty Court has determined the equivalent amount in Canadian currency on the basis of the rate of exchange prevailing on the day on which the foreign judgment was rendered, as ascertained from any bank in Canada, and, for the purpose of making that determination, that Court may require the judgment creditor to provide any evidence of the applicable rate of exchange that that Court considers necessary.

Marginal note:Registered judgment to be in Canadian currency

(2) When the equivalent amount in Canadian currency has been determined in accordance with subsection (1), the Admiralty Court shall certify on the order for registration the amount so determined, and the foreign judgment, when registered, is deemed to be a judgment for payment of the amount so certified.

Marginal note:Effect of registration

68. Subject to section 69, a foreign judgment registered under section 64 has, as of the date of registration, the same force and effect as a judgment of the Admiralty Court rendered on that date.

Marginal note:Service of notice of registration

69. If a foreign judgment is registered under section 64 after an ex parte hearing, execution of the registered judgment may not issue until the expiry of 30 days after the judgment debtor has been served with a notice of registration of the foreign judgment in the manner set out in the rules of the Admiralty Court for the service of originating documents.

Marginal note:Application to set aside registration

70. (1) At any time after a foreign judgment has been registered under section 64, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the registration of the judgment set aside on any of the grounds set out in subsection (2).

Marginal note:Grounds for setting aside registration

(2) On an application by a judgment debtor under subsection (1), the Admiralty Court shall set aside the registration of the foreign judgment if it is satisfied that

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

(b) the foreign court acted without jurisdiction;

(c) the foreign judgment was obtained by fraud;

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

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

(f) an error was made in the conversion of the foreign judgment to Canadian currency under section 67;

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

(h) for any other reason that Court erred in registering the foreign judgment.

Marginal note:Reduction of registered amount

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

Marginal note:Application for stay of execution

71. (1) At any time after a foreign judgment has been registered under section 64, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the execution of the registered judgment stayed on the grounds that an application to set aside the registration has been made under subsection 70(1), and, if that Court is satisfied that the application has been made, it may stay the execution of the judgment either absolutely or for the period and on the terms and conditions that it considers appropriate, and may, on further evidence, vary or terminate a stay of execution.

Marginal note:Grounds exclusive

(2) Execution of a registered judgment may not be stayed except on the grounds that an application to set aside the registration has been made under subsection 70(1).

Division 2Compensation for Pollution

International Oil Pollution Compensation Fund

Marginal note:Legal capacity of International Fund

72. For the purposes of the rights and obligations described in this Part, the International Fund has the capacity, rights and obligations of a natural person, and the Director of the International Fund is its legal representative.

Marginal note:International Fund to be party to legal proceedings

73. If a claimant commences an action against the owner of a Convention ship or the owner’s guarantor in respect of a matter referred to in subsection 51(1),

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

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

Marginal note:Method of service on International Fund

74. In addition to any method of service permitted by the rules of the court in which a proceeding referred to in section 73 is commenced, service of documents on the International Fund under paragraph 73(a) may be effected by registered mail.

Marginal note:Circumstances in which International Fund is liable

75. If there is an occurrence involving a Convention ship, to the extent that a claimant has been unable to obtain full compensation under this Part from the ship’s owner or the owner’s guarantor, the International Fund is, subject to the provisions of the Fund Convention, liable in accordance with Article 4 of that Convention.

Marginal note:Contributions by Canada to International Fund

76. (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.

Marginal note:Communication of information

(2) The Administrator shall communicate to the Director of the International Fund the information referred to in Article 15 of the Fund Convention in accordance with that Article and is liable for any financial loss to the International Fund as a result of the failure to so communicate.

Marginal note:Powers of Administrator

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

(a) at any reasonable time, enter any premises where the Administrator believes on reasonable grounds that there are any records, books, accounts, vouchers or other documents relating to information referred to in Article 15 of the Fund Convention;

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

(c) require the owner, occupier or person in charge of the premises to give 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 premises with the Administrator.

Marginal note:No obstruction or false statements

(4) No person shall obstruct or hinder the Administrator in the exercise of any powers under subsection (3) or knowingly make a false or misleading statement, either orally or in writing, to the Administrator while the Administrator is exercising those powers.

Marginal note:Warrant required to enter living quarters

(5) Living quarters may not be entered under subsection (3) unless they are entered with the consent of the occupant or under the authority of a warrant issued under subsection (6).

Marginal note:Authority to issue warrant

(6) 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 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

(a) is necessary for the purposes of subsection (2); and

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

Meaning of “associated persons”

(7) 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” for the purpose of the definition “Associated person” in subparagraph 2(b) of Article 10 of the Fund Convention.

Ship-source Oil Pollution Fund

Marginal note:Ship-source Oil Pollution Fund

77. (1) There is hereby established in the accounts of Canada an account known as the Ship-source Oil Pollution Fund.

Marginal note:Credits

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

(a) all payments received under sections 93 and 99;

(b) interest computed in accordance with section 78; and

(c) any amounts recovered by the Administrator under paragraph 87(3)(c).

Marginal note:Charges

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

(a) all amounts that are directed by the Administrator to be paid under section 76, paragraph 87(3)(a), paragraph 89(1)(a), subsection 89(6) or under a settlement;

(b) all amounts for which the Administrator is liable under subsection 76(2);

(c) all interest paid under section 101;

(d) all costs and expenses that are directed to be paid under section 82;

(e) the remuneration and expenses of assessors that are directed to be paid under subsection 89(2); and

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

Marginal note:Interest to be credited to Fund

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

Administrator and Deputy Administrator

Marginal note:Appointment of Administrator

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

Marginal note:Administrator eligible for reappointment

(2) The Administrator is eligible for reappointment on the expiry of the Administrator’s term of office.

Marginal note:Administrator to be independent of Crown

80. (1) The Administrator shall not, while holding office, accept or hold any office or employment inconsistent with the Administrator’s duties under this Part.

Marginal note:Effect of contravention of subsection (1)

(2) If the Administrator contravenes subsection (1), the Administrator’s appointment as Administrator is terminated on a date fixed by the Governor in Council that is not later than 30 days after notice of the contravention is received by the Minister, but the contravention does not affect the validity of any act performed by the Administrator on behalf of the Ship-source Oil Pollution Fund between the date of the contravention and the date that the appointment is terminated under this subsection.

Marginal note:Professional and technical aid

81. The Administrator may, for the purpose of performing duties under this Part, obtain the professional, technical and other advice and assistance that the Administrator considers necessary.

Marginal note:Costs, expenses and fees

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

Marginal note:Taxation

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

Marginal note:Deputy Administrator

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

Marginal note:Eligibility for re-appointment

(2) The Deputy Administrator is eligible for reappointment on the expiry of the Deputy Administrator’s term of office.

Marginal note:Absence, etc., of Administrator

(3) If the Administrator is absent or incapacitated or the office of Administrator is vacant, the Deputy Administrator has all the powers and duties of the Administrator.

Marginal note:Application of sections 80 and 82

(4) Sections 80 and 82 apply to the Deputy Administrator, with any modifications that the circumstances require.

Liability of Ship-source Oil Pollution Fund

Marginal note:Liability of Ship-source Oil Pollution Fund

84. Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the matters referred to in subsection 51(1) in relation to oil, if

(a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship and, in the case of a Convention ship, from the International Fund and have been unsuccessful;

(b) the owner is not liable by reason of any of the defences described in subsection 51(3) and the International Fund is not liable either;

(c) the claim exceeds

(i) in the case of a Convention ship, the owner’s maximum liability under this Part to the extent that the excess is not recoverable from the International Fund, and

(ii) in the case of a ship other than a Convention ship, the owner’s maximum liability under Part 3;

(d) the owner is financially incapable of meeting the owner’s legal obligations under subsection 51(1), to the extent that the obligation is not recoverable from the International Fund;

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

(f) the Administrator is a party to a settlement under section 90.

Claims Arising under Section 51

Marginal note:Claims filed with Administrator

85. (1) In addition to any right against the Ship-source Oil Pollution Fund under section 84, a person who has suffered loss or damage or incurred costs or expenses referred to in subsection 51(1) in respect of actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.

Marginal note:Time limits

(2) Unless the Admiralty Court fixes a shorter period under paragraph 92(a), a claim under subsection (1) must be made

(a) within two years after the day on which oil pollution damage occurred and five years after the occurrence that caused that damage, or

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

Marginal note:Exception

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

Marginal note:Duties of Administrator

86. (1) On receipt of a claim under section 85, the Administrator shall

(a) investigate and assess the claim; and

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

Marginal note:Powers of Administrator

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

Marginal note:Factors to be considered

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

(a) whether the claim is for loss, damage, costs or expenses referred to in subsection 85(1); and

(b) whether the claim resulted wholly or partially from

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

(ii) the negligence of the claimant.

Marginal note:Cause of occurrence

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

Marginal note:When claimant at fault

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

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

(b) the negligence of the claimant.

Marginal note:Offer of compensation

87. (1) If the Administrator makes an offer of compensation to a claimant under section 86, the claimant shall, within 60 days after receiving the offer, notify the Administrator whether the claimant accepts or refuses it and, if no notification has been received by the Administrator at the end of that period, the claimant is deemed to have refused the offer.

Marginal note:Appeal to Admiralty Court

(2) A claimant may, within 60 days after receiving an offer of compensation from the Administrator or a notification that the Administrator has disallowed the claim, appeal the adequacy of the offer or the disallowance of the claim to the Admiralty Court, but in an appeal from the disallowance of a claim that Court may consider only the matters described in paragraphs 86(3)(a) and (b).

Marginal note:Acceptance of offer by claimant

(3) If a claimant accepts an offer of compensation from the Administrator under section 86,

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

(b) the claimant is then precluded from pursuing any rights that the claimant may have had against any person in respect of matters referred to in subsection 51(1) in relation to the occurrence to which the offer of compensation relates;

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

(d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund or any other person liable and, for that purpose, the Administrator may commence an action in the name of the Administrator or the claimant and may enforce any security provided to or enforceable by the claimant, including any claim against a shipowner’s fund established under subsection 58(1).

Claims for Loss of Income

Marginal note:Meaning of terms

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

Definition of “claimant”

(2) In this section, “claimant” means

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

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

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

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

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

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

Marginal note:Filing of claim with Administrator

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

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

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

Marginal note:Limitations

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

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

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

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

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

Marginal note:Cause of occurrence

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

Marginal note:Time for filing claim may be shortened

(6) The period mentioned in subsection (3) for filing a claim under that subsection may be shortened by order of the Admiralty Court under paragraph 92(a).

Marginal note:Responsibility of Administrator

89. (1) On receipt of a claim filed under subsection 88(3), the Administrator shall

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

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

Marginal note:Appointment of assessors

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

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

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

Marginal note:Assessment of loss

(3) For the purpose of assessing a loss alleged by a claimant under section 88, an assessor or assessors, in this section referred to as the “assessor”,

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

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

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

Marginal note:Report to Minister

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

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

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

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

Marginal note:Amount of loss

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

Marginal note:Payment of assessed loss out of Fund

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

Proceedings against Shipowner

Marginal note:Proceedings under section 51

90. (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 subsection 51(1), except in the case of proceedings commenced by the Minister of Fisheries and Oceans under paragraph 51(1)(c) in respect of a pollutant other than oil,

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

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

Marginal note:When Administrator is a party to a settlement

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

Limit of Liability of Ship-source Oil Pollution Fund

Marginal note:Limit of liability of Ship-source Oil Pollution Fund in first year

91. (1) The maximum aggregate liability of the Ship-source Oil Pollution Fund under sections 84, 86 and 88 and under any settlement, in respect of any particular occurrence, is

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

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

Marginal note:Annual adjustment of limit of liability

(2) The $100,000,000 limit of liability referred to in paragraph (1)(a) shall be adjusted annually so that the limit of liability arising out of any given occurrence that takes place in any following year is an amount equal to the product obtained by multiplying

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

by

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

Marginal note:Consumer Price Index

(3) For the purpose of this section,

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

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

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

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

Marginal note:Adjusted limit to be published annually

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

Application to Court for Directions

Marginal note:Administrator may apply to Court for directions

92. If the Admiralty Court, on the application of the Administrator and on notice to other interested parties as that Court considers just in the circumstances, is satisfied that, in respect of a particular occurrence, the aggregate liability of the Ship-source Oil Pollution Fund under sections 84, 86 and 88 and subsection 90(2) may exceed its limit of liability under section 91, that Court may

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

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

Payments into the Ship-source Oil Pollution Fund

Definition of “oil”

93. (1) In this section and sections 94 to 99, “oil” means “Contributing Oil” as defined in paragraph 3 of Article 1 of the Fund Convention.

Marginal note:Levy on shipments of oil in bulk

(2) If imposed or re-imposed by the Minister under subsection 95(1), there shall be paid to the Receiver General a levy determined in accordance with section 94

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

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

Marginal note:When payable

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

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

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

Marginal note:Debts due to Her Majesty

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

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

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

Marginal note:Amount of levy in first year

94. (1) The levy referred to in subsection 93(2) is 30 cents in the year ending on March 31, 1990.

Marginal note:Annual adjustment of levy

(2) The levy of 30 cents referred to in subsection (1) shall be adjusted annually so that the levy in any following year is an amount equal to the product obtained by multiplying

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

by

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

Marginal note:Consumer Price Index

(3) For the purpose of this section,

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

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

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

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

Marginal note:Adjusted levy to be published annually

(4) The Minister shall cause the levy referred to in section 93, adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the levy so published is admissible in any proceeding under this Part as conclusive proof of the levy for the year in question.

Marginal note:Discontinuation or re-imposition of levy

95. (1) The Minister, after consultation with the Minister of Fisheries and Oceans and the Minister of the Environment, may from time to time, by order, impose, discontinue or re-impose the levy referred to in section 93.

Marginal note:Annual adjustment of levy unaffected

(2) The non-imposition, discontinuation or re-imposition of the levy under subsection (1) does not affect the operation of section 94.

Marginal note:Regulations

96. The Governor in Council may, on the recommendation of the Minister, make regulations

(a) prescribing the manner in which the levy payable under section 93 is to be paid;

(b) providing for the filing with the Minister of information returns by the persons referred to in subsection 93(4) from whom the levy may be recovered; and

(c) providing for the filing with the Minister of information returns necessary to enable the Administrator to discharge the Administrator’s obligations under section 76.

Marginal note:Records and books

97. (1) Every person referred to in subsection 93(4) from whom the levy payable under section 93 may be recovered shall keep records and books of account at their place of business in Canada, or at any other place in Canada that may be designated by the Minister, that set out

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

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

(c) the time when and place where the amounts referred to in paragraph (a) were paid or security for their payment was given in accordance with subsection 93(3); and

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

Marginal note:Disposal of records

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

Marginal note:Examination of records

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

Marginal note:Inspection of premises

98. (1) Any person designated in writing by the Minister for the purpose may, at any reasonable time, enter any premises where the person believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to amounts payable under section 93 and

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

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

Marginal note:Warrant to enter living quarters

(2) Living quarters may not be entered under subsection (1) unless they are entered with the consent of the occupant or under the authority of a warrant issued under subsection (3).

Marginal note:Authority to issue warrant

(3) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing a person designated under subsection (1) 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

(a) is necessary for the purpose of subsection (1); and

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

Marginal note:Certificate of designation

(4) Persons designated by the Minister under subsection (1) shall be furnished with a certificate of their designation and, on entering any premises referred to in that subsection, shall produce the certificate on request to the owner, occupier or person in charge of the premises.

Marginal note:Report to Minister

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

Marginal note:Return of original or copy of documents

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

Marginal note:Notice of application for extension of time

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

Marginal note:Copies of documents

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

Marginal note:Obstruction, false statements

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

Marginal note:Interest on unpaid amounts

99. If any portion of a levy is not paid as provided in subsection 93(3), interest may be charged on the amount from time to time outstanding, at a rate fixed by the Governor in Council on the recommendation of the Minister of Finance, calculated from the time when the oil is unloaded from the ship or when the ship on which the oil was loaded leaves the facility at which it was loaded, as the case may be.

Annual Report

Marginal note:Annual report of Administrator

100. (1) The Administrator shall, as soon as feasible after the end of each fiscal year, submit a report to the Minister, in any form that the Minister may direct, of the Administrator’s operations under this Part for that fiscal year.

Marginal note:Tabling

(2) The Minister shall have the report laid before each House of Parliament on any of the first ten days on which that House is sitting after the day on which the Minister receives it.

Interest on Claims

Marginal note:Claimants entitled to interest

101. (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 or the International 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 in effect from time to time.

Marginal note:Time from which interest accrues

(2) Interest referred to in subsection (1) accrues

(a) if the claim is based on paragraph 51(1)(a), from the day on which the oil pollution damage occurred;

(b) if the claim is based on paragraph 51(1)(b) or (c),

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

(ii) in the case of loss or damage referred to in that paragraph, from the day on which the loss or damage occurred; or

(c) if the claim is for loss of income under section 88, from the time when the loss of income occurred.

Regulations

Marginal note:Regulations

102. The Governor in Council may, on the recommendation of the Minister, make regulations

(a) prescribing anything that by this Part is to be prescribed by the regulations; and

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

Offences and Punishment

Marginal note:Evidence of financial responsibility

103. (1) Any person who fails to produce a certificate or give details of it as and when required under subsection 60(4) is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.

Marginal note:Detention of ship

(2) A pollution prevention officer, designated pursuant to section 661 of the Canada Shipping Act, who has reasonable grounds for believing that an offence under subsection (1) has been committed in respect of a ship may make a detention order in respect of that ship, and section 672 of that Act applies to such a detention order with any modifications that the circumstances require.

Marginal note:Evading payment of levy

104. (1) Any person who wilfully evades or attempts to evade payment of an amount payable under section 93 is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.

Marginal note:Failure to file information return

(2) Any person who fails to file an information return as and when required by regulations made under paragraph 96(b) or (c), containing substantially the information required to be included in the return, is guilty of an offence and liable on summary conviction to a fine not exceeding $100 for each day of default.

Marginal note:Failure to keep books and accounts

(3) Any person who contravenes section 97 is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.

Marginal note:Falsifying or destroying books

(4) Any person who knowingly destroys, mutilates or falsifies, or who knowingly makes any false entry or statement in, any record, book of account or other document required to be kept under section 97 is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.

Marginal note:Obstruction or false statements

(5) Any person who contravenes subsection 76(4) or 98(9) is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.

Marginal note:Jurisdiction in relation to offences

105. When a person is charged with having committed an offence under this Part, any court in Canada that would have had cognizance of the offence if it had been committed by a person within the limits of its ordinary jurisdiction has jurisdiction to try the offence as if it had been committed there.

PART 7 VALIDATION OF CERTAIN BY-LAWS AND REGULATIONS

By-laws under the Canada Ports Corporation Act

Marginal note:By-laws deemed to be valid

106. Each of the following by-laws is deemed for all purposes to have been validly made and to have had the same force and effect as if it had been made in accordance with the Canada Ports Corporation Act, and any harbour dues collected before the coming into force of this section under the authority purported to be granted by the by-law are deemed to have been validly collected:

(a) by-law amending the Harbour Dues Tariff By-law, made by Order in Council P.C. 1983-3905 of December 8, 1983, and registered as SOR/83-934;

(b) by-law amending the Pacific Harbour Dues Tariff By-law, made by Order in Council P.C. 1983-3906 of December 8, 1983, and registered as SOR/83-935; and

(c) by-law amending the Pacific Harbour Dues Tariff By-law, made by Order in Council P.C. 1985-541 of February 14, 1985, and registered as SOR/85-190.

Regulations under the Pilotage Act

Marginal note:Laurentian Pilotage Tariff Regulations, 1992

107. The Laurentian Pilotage Tariff Regulations, 1992, made by Order in Council P.C. 1994-1508 of September 7, 1994, and registered as SOR/94-588, are deemed for all purposes to have been made on July 4, 1994 by the Laurentian Pilotage Authority with the approval of the Governor in Council under section 33 of the Pilotage Act, and any pilotage charges collected before the coming into force of this section under the authority purported to be granted by those Regulations are deemed to have been validly collected.

PART 8 TRANSITIONAL, CONSEQUENTIAL AMENDMENTS, CONDITIONAL AMENDMENT, REPEAL AND COMING INTO FORCE

Transitional

Marginal note:Part 4

108. Part 4 applies in respect of

(a) carriage by water under contracts of carriage entered into after that Part comes into force; and

(b) carriage by water, otherwise than under contracts of carriage, commencing after that Part comes into force.

Consequential Amendments

R.S., c. A-12Arctic Waters Pollution Prevention Act

Marginal note:1993, c. 36, s. 22

109. Section 2.1 of the Arctic Waters Pollution Prevention Act is replaced by the following:

Marginal note:Inconsistency with Part 6 of Marine Liability Act

2.1 In the event of an inconsistency between the provisions of this Act, or any regulation made under this Act, and the provisions of Part 6 of the Marine Liability Act, the provisions of that Part prevail to the extent of the inconsistency.

1987, c. 3Canada-Newfoundland Atlantic Accord Implementation Act

Marginal note:1992, c. 35, s. 73(1)

110. Subsection 160(1) of the Canada-Newfoundland Atlantic Accord Implementation Act is replaced by the following:

Definition of “spill”

160. (1) In sections 161 to 165, “spill” means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a ship to which Part XV of the Canada Shipping Act or Part 6 of the Marine Liability Act applies.

1988, c. 28Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act

Marginal note:1992, c. 35, s. 110(1)

111. Subsection 165(1) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:

Definition of “spill”

165. (1) In sections 166 to 170, “spill” means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a ship to which Part XV of the Canada Shipping Act or Part 6 of the Marine Liability Act applies.

1999, c. 33Canadian Environmental Protection Act, 1999

112. Subsection 42(3) of the Canadian Environmental Protection Act, 1999 is replaced by the following:

Marginal note:Damages caused by a ship

(3) No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.

R.S., c. C-50; 1990, c. 8, s. 21Crown Liability and Proceedings Act

Marginal note:1998, c. 16, s. 32

113. Section 6 of the Crown Liability and Proceedings Act is repealed.

114. Subsection 7(2) of the Act is repealed.

R.S., c. F-7Federal Court Act

Marginal note:1990, c. 8, s. 1(3)

115. The definition “ship” in subsection 2(1) of the Federal Court Act is replaced by the following:

“ship”

« navire »

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

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

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

R.S., c. M-6Merchant Seamen Compensation Act

116. Subsection 42(3) of the Merchant Seamen Compensation Act is replaced by the following:

Marginal note:Compensation paid in full

(3) Any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full notwithstanding anything in Part 3 of the Marine Liability Act.

R.S., O-7; 1992, c. 35, s. 2Canada Oil and Gas Operations Act

Marginal note:1992, c. 35, s. 22(1)

117. Subsection 24(1) of the Canada Oil and Gas Operations Act is replaced by the following:

Definition of “spill”

24. (1) In sections 25 to 28, “spill” means a discharge, emission or escape of oil or gas, other than one that is authorized pursuant to the regulations or any other federal law or that constitutes a discharge from a ship to which Part XV of the Canada Shipping Act or Part 6 of the Marine Liability Act applies.

R.S., c. S-9Canada Shipping Act

Marginal note:1998, c. 6, s. 1

118. Sections 565 to 567 of the Canada Shipping Act are repealed.

119. Sections 571 and 572 of the Act are repealed.

120. Section 573 of the Act is replaced by the following:

Marginal note:Construction of terms

573. Sections 568 to 570 apply in respect of a vessel to any persons other than the owners responsible for the fault of the vessel as though the expression “owners” included those persons, and in any case where, by virtue of any charter or demise, or for any other reason, the owners are not responsible for the navigation and management of the vessel, those sections shall be read as though for references to the owners there were substituted references to the charterers or other persons for the time being so responsible.

Marginal note:1998, c. 6, s. 2

121. The heading before section 574 and sections 574 to 577 of the Act are repealed.

122. Section 578 of the Act, as enacted by section 2 of An Act to amend the Canada Shipping Act (maritime liability), chapter 6 of the Statutes of Canada, 1998, is deemed to have been repealed on March 17, 1999.

Marginal note:1998, c. 6, s. 2

123. Sections 579 to 583 of the Act are repealed.

124. Section 586 of the Act is replaced by the following:

Marginal note:Responsibility for goods

586. Subject to Part 5 of the Marine Liability Act, carriers by water are responsible not only for goods received on board their vessels but also for goods delivered to them for conveyance by their vessels, and are bound to use due care and diligence in the safe-keeping and punctual conveyance of those goods.

Marginal note:1998, c. 16, s. 17

125. Part XIV of the Act is repealed.

Marginal note:R.S., c. 6 (3rd Supp.), s. 84; 1993, c. 36, s. 15; 1996, c. 31, s. 104(1); 1998, c. 6, ss. 7, 8

126. The heading before section 677 and sections 677 and 677.1 of the Act are repealed.

Marginal note:R.S., c. 6 (3rd Supp.), s. 84; 1993, c. 36, ss. 18, 19; 1994, c. 24, par. 34(1)(e)(F); 1996, c. 21, s. 75(1), c. 31, s. 106; 1998, c. 6, ss. 10 to 22, 23(F)

127. Sections 679 to 723 of the Act are repealed.

Marginal note:R.S., c. 6 (3rd Supp.), s. 84; 1998, c. 6, s. 25

128. Sections 724 to 727 of the Act are repealed.

Conditional Amendment

Marginal note:1991, c. 24

129. (1) If section 14 of Schedule III to An Act to amend the Financial Administration Act and other Acts in consequence thereof (in this section referred to as the “other Act”), chapter 24 of the Statutes of Canada, 1991, does not come into force before the day on which section 99 of this Act comes into force, then, on that day, that section 14 and the heading before it are replaced by the following:

Marine Liability Act

14. Section 99 is replaced by the following:

Marginal note:Interest on unpaid amounts

99. If any portion of a levy is not paid as provided in subsection 93(3), interest may be charged on the amount from time to time outstanding, in accordance with any regulations made pursuant to subsection 155.1(6) of the Financial Administration Act.

Marginal note:1991, c. 24

(2) If section 14 of Schedule III to the other Act comes into force before the day on which section 99 of this Act comes into force, then, on that day, that section 99 is replaced by the following:

Marginal note:Interest on unpaid amounts

99. If any portion of a levy is not paid as provided in subsection 93(3), interest may be charged on the amount from time to time outstanding, in accordance with any regulations made pursuant to subsection 155.1(6) of the Financial Administration Act.

Repeal

Marginal note:Repeal

130. The Carriage of Goods by Water Act, chapter 21 of the Statutes of Canada, 1993, is repealed.

Coming into Force

Marginal note:Coming into force

131. (1) The provisions of this Act, other than sections 45 and 129, come into force 90 days after the day on which this Act receives royal assent or on any later day or days previously fixed by order of the Governor in Council.

Marginal note:Section 45

(2) The subsections of section 45 come into force on a day or days to be fixed by order of the Governor in Council.

SCHEDULE 1(Section 24)

PART 1

Text of Articles 1 to 15 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976

CHAPTER I. THE RIGHT OF LIMITATION

Article 1
Persons entitled to limit liability

1. Shipowners and salvors, as hereinafter defined, may limit their liability in accordance with the rules of this Convention for claims set out in Article 2.

2. The term “shipowner” shall mean the owner, charterer, manager and operator of a seagoing ship.

3. Salvor shall mean any person rendering services in direct connexion with salvage operations. Salvage operations shall also include operations referred to in Article 2, paragraph 1(d), (e) and (f).

4. If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner or salvor is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention.

5. In this Convention the liability of a shipowner shall include liability in an action brought against the vessel herself.

6. An insurer of liability for claims subject to limitation in accordance with the rules of this Convention shall be entitled to the benefits of this Convention to the same extent as the assured himself.

7. The act of invoking limitation of liability shall not constitute an admission of liability.

Article 2
Claims subject to limitation

1. Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

(a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;

(b) claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage;

(c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations;

(d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship;

(e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;

(f) claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.

2. Claims set out in paragraph 1 shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise. However, claims set out under paragraph 1(d), (e) and (f) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable.

Article 3
Claims excepted from limitation

The rules of this Convention shall not apply to:

(a) claims for salvage, including, if applicable, any claim for special compensation under article 14 of the International Convention on Salvage 1989, as amended, or contribution in general average;

(b) claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, dated 29 November 1969 or of any amendment or Protocol thereto which is in force;

(c) claims subject to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage;

(d) claims against the shipowner of a nuclear ship for nuclear damage;

(e) claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs, dependants or other persons entitled to make such claims, if under the law governing the contract of service between the shipowner or salvor and such servants the shipowner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in Article 6.

Article 4
Conduct barring limitation

A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.

Article 5
Counterclaims

Where a person entitled to limitation of liability under the rules of this Convention has a claim against the claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this Convention shall only apply to the balance, if any.

CHAPTER II. LIMITS OF LIABILITY

Article 6
The general limits

1. The limits of liability for claims other than those mentioned in article 7, arising on any distinct occasion, shall be calculated as follows:

(a) in respect of claims for loss of life or personal injury,

(i) 2 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

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

for each ton from 2,001 to 30,000 tons, 800 Units of Account;

for each ton from 30,001 to 70,000 tons, 600 Units of Account; and

for each ton in excess of 70,000 tons, 400 Units of Account,

(b) in respect of any other claims,

(i) 1 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

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

for each ton from 2,001 to 30,000 tons, 400 Units of Account;

for each ton from 30,001 to 70,000 tons, 300 Units of Account; and

for each ton in excess of 70,000 tons, 200 Units of Account.

2. Where the amount calculated in accordance with paragraph 1(a) is insufficient to pay the claims mentioned therein in full, the amount calculated in accordance with paragraph 1(b) shall be available for payment of the unpaid balance of claims under paragraph 1(a) and such unpaid balance shall rank rateably with claims mentioned under paragraph 1(b).

3. However, without prejudice to the right of claims for loss of life or personal injury according to paragraph 2, a State Party may provide in its national law that claims in respect of damage to harbour works, basins and waterways and aids to navigation shall have such priority over other claims under paragraph 1(b) as is provided by that law.

4. The limits of liability for any salvor not operating from any ship or for any salvor operating solely on the ship to or in respect of which he is rendering salvage services, shall be calculated according to a tonnage of 1,500 tons.

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

Article 7
The limit for passenger claims

1. In respect of claims arising on any distinct occasion for loss of life or personal injury to passengers of a ship, the limit of liability of the shipowner thereof shall be an amount of 175,000 Units of Account multiplied by the number of passengers which the ship is authorized to carry according to the ship’s certificate.

2. For the purpose of this Article “claims for loss of life or personal injury to passengers of a ship” shall mean any such claims brought by or on behalf of any person carried in that ship:

(a) under a contract of passenger carriage, or

(b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods.

Article 8
Unit of Account

1. The Unit of Account referred to in Articles 6 and 7 is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in Articles 6 and 7 shall be converted into the national currency of the State in which limitation is sought, according to the value of that currency at the date the limitation fund shall have been constituted, payment is made, or security is given which under the law of that State is equivalent to such payment. The value of a 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 at the date in question for its operations and transactions. The value of a 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 Party.

2. Nevertheless, those States which are not members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 may, at the time of signature without reservation as to ratification, acceptance or approval or at the time of ratification, acceptance, approval or accession or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in their territories shall be fixed as follows:

(a) in respect of article 6, paragraph 1(a) at an amount of:

(i) 30 million monetary units for a ship with a tonnage not exceeding 2,000 tons;

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

for each ton from 2,001 to 30,000 tons, 12,000 monetary units;

for each ton from 30,001 to 70,000 tons, 9,000 monetary units; and

for each ton in excess of 70,000 tons, 6,000 monetary units; and

(b) in respect of article 6, paragraph 1(b), at an amount of:

(i) 15 million monetary units for a ship with a tonnage not exceeding 2,000 tons;

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

for each ton from 2,001 to 30,000 tons, 6,000 monetary units;

for each ton from 30,001 to 70,000 tons, 4,500 monetary units; and

for each ton in excess of 70,000 tons, 3,000 monetary units; and

(c) in respect of article 7, paragraph 1, at an amount of 2,625,000 monetary units multiplied by the number of passengers which the ship is authorized to carry according to its certificate.

Paragraphs 2 and 3 of Article 6 apply correspondingly to subparagraphs (a) and (b) of this paragraph.

3. The monetary unit referred to in paragraph 2 corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the amounts referred to in paragraph 2 into the national currency shall be made according to the law of the State concerned.

4. The calculation mentioned in the last sentence of paragraph 1 and the conversion mentioned in paragraph 3 shall be made in such a manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 6 and 7 as is expressed there in units of account. States Parties shall communicate to the depositary the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 3, as the case may be, at the time of the signature without reservation as to ratification, acceptance or approval, or when depositing an instrument referred to in Article 16 and whenever there is a change in either.

Article 9
Aggregation of claims

1. The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion:

(a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose act, neglect or default he or they are responsible; or

(b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or

(c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to or in respect of which the salvage services are rendered and any person for whose act, neglect or default he or they are responsible.

2. The limits of liability determined in accordance with Article 7 shall apply to the aggregate of all claims subject thereto which may arise on any distinct occasion against the person or persons mentioned in paragraph 2 of Article 1 in respect of the ship referred to in Article 7 and any person for whose act, neglect or default he or they are responsible.

Article 10
Limitation of liability without constitution of a limitation fund

1. Limitation of liability may be invoked notwithstanding that a limitation fund as mentioned in Article 11 has not been constituted. However, a State Party may provide in its national law that, where an action is brought in its Courts to enforce a claim subject to limitation, a person liable may only invoke the right to limit liability if a limitation fund has been constituted in accordance with the provisions of this Convention or is constituted when the right to limit liability is invoked.

2. If limitation of liability is invoked without the constitution of a limitation fund, the provisions of Article 12 shall apply correspondingly.

3. Questions of procedure arising under the rules of this Article shall be decided in accordance with the national law of the State Party in which action is brought.

CHAPTER III. THE LIMITATION FUND

Article 11
Constitution of the fund

1. Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked.

2. A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority.

3. A fund constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively.

Article 12
Distribution of the fund

1. Subject to the provisions of paragraphs 1, 2 and 3 of Article 6 and of Article 7, the fund shall be distributed among the claimants in proportion to their established claims against the fund.

2. If, before the fund is distributed, the person liable, or his insurer, has settled a claim against the fund such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

3. The right of subrogation provided for in paragraph 2 may also be exercised by persons other than those therein mentioned in respect of any amount of compensation which they may have paid, but only to the extent that such subrogation is permitted under the applicable national law.

4. Where the person liable or any other person establishes that he may be compelled to pay, at a later date, in whole or in part any such amount of compensation with regard to which such person would have enjoyed a right of subrogation pursuant to paragraphs 2 and 3 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 his claim against the fund.

Article 13
Bar to other actions

1. Where a limitation fund has been constituted in accordance with Article 11, any person having made a claim against the fund shall be barred from exercising any right in respect of such claim against any other assets of a person by or on behalf of whom the fund has been constituted.

2. After a limitation fund has been constituted in accordance with Article 11, any ship or other property, belonging to a person on behalf of whom the fund has been constituted, which has been arrested or attached within the jurisdiction of a State Party for a claim which may be raised against the fund, or any security given, may be released by order of the Court or other competent authority of such State. However, such release shall always be ordered if the limitation fund has been constituted:

(a) at the port where the occurrence took place, or, if it took place out of port, at the first port of call thereafter; or

(b) at the port of disembarkation in respect of claims for loss of life or personal injury; or

(c) at the port of discharge in respect of damage to cargo; or

(d) in the State where the arrest is made.

3. The rules of paragraphs 1 and 2 shall apply only if the claimant may bring a claim against the limitation fund before the Court administering that fund and the fund is actually available and freely transferable in respect of that claim.

Article 14
Governing law

Subject to the provisions of this Chapter the rules relating to the constitution and distribution of a limitation fund, and all rules of procedure in connexion therewith, shall be governed by the law of the State Party in which the fund is constituted.

CHAPTER IV. SCOPE OF APPLICATION

Article 15

1. This Convention shall apply whenever any person referred to in Article 1 seeks to limit his liability before the Court of a State Party or seeks to procure the release of a ship or other property or the discharge of any security given within the jurisdiction of any such State. Nevertheless, each State Party may exclude wholly or partially from the application of this Convention any person referred to in Article 1 who at the time when the rules of this Convention are invoked before the Courts of that State does not have his habitual residence in a State Party or does not have his principal place of business in a State Party or any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the flag of a State Party.

2. A State Party may regulate by specific provisions of national law the system of limitation of liability to be applied to vessels which are:

(a) according to the law of that State, ships intended for navigation on inland waterways;

(b) ships of less than 300 tons.

A State Party which makes use of the option provided for in this paragraph shall inform the depositary of the limits of liability adopted in its national legislation or of the fact that there are none.

3. A State Party may regulate by specific provisions of national law the system of limitation of liability to be applied to claims arising in cases in which interests of persons who are nationals of other States Parties are in no way involved.

3bis. Notwithstanding the limit of liability prescribed in paragraph 1 of Article 7, a State Party may regulate by specific provisions of national law the system of liability to be applied to claims for loss of life or personal injury to passengers of a ship, provided that the limit of liability is not lower than that prescribed in paragraph 1 of Article 7. A State Party which makes use of the option provided for in this paragraph shall inform the Secretary-General of the limits of liability adopted or of the fact that there are none.

4. The Courts of a State Party shall not apply this Convention to ships constructed for, or adapted to, and engaged in, drilling:

(a) when that State has established under its national legislation a higher limit of liability than that otherwise provided for in Article 6; or

(b) when that State has become party to an international convention regulating the system of liability in respect of such ships.

In a case to which sub-paragraph (a) applies that State Party shall inform the depositary accordingly.

5. This Convention shall not apply to:

(a) air-cushion vehicles;

(b) floating platforms constructed for the purpose of exploring or exploiting the natural resources of the sea-bed or the subsoil thereof.

PART 2

Text of Article 18 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976, and of Articles 8 and 9 of that Protocol

Article 18
Reservations

1. Any State may, at the time of signature, ratification, acceptance, approval or accession, or at any time thereafter, reserve the right:

(a) to exclude the application of article 2, paragraphs 1(d) and (e);

(b) to exclude claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any amendment or Protocol thereto.

No other reservations shall be admissible to the substantive provisions of this Convention.

2. Reservations made at the time of signature are subject to confirmation upon ratification, acceptance or approval.

3. Any State which has made a reservation to this Convention may withdraw it at any time by means of a notification addressed to the Secretary-General. Such withdrawal shall take effect on the date the notification is received. If the notification states that the withdrawal of a reservation is to take effect on a date specified therein, and such date is later than the date the notification is received by the Secretary-General, the withdrawal shall take effect on such later date.

Article 8
Amendment of limits

1. Upon the request of at least one half, but in no case less than six, of the States Parties to this Protocol, any proposal to amend the limits specified in article 6, paragraph 1, article 7, paragraph 1 and article 8, paragraph 2 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.

2. Any amendment proposed and circulated as above 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.

3. All Contracting States to the Convention as amended by this Protocol, 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.

4. Amendments shall be adopted by a two-thirds majority of the Contracting States to the Convention as amended by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States to the Convention as amended by this Protocol shall be present at the time of voting.

5. When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and, 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.

(a) No amendment of the limits under this article may be considered less than five years from the date on which 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 the limit laid down in the Convention as amended by 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 the limit laid down in the Convention as amended by this Protocol multiplied by three.

7. Any amendment adopted in accordance with paragraph 4 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 not less than one-fourth of the States that 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.

8. An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.

9. All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with paragraphs 1 and 2 of article 12 at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

10. 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 7. 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.

Article 9

1. The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.

2. A State which is Party to this Protocol but not a Party to the Convention shall be bound by the provisions of the Convention as amended by this Protocol in relation to other States Parties hereto, but shall not be bound by the provisions of the Convention in relation to States Parties only to the Convention.

3. The Convention as amended by this Protocol shall apply only to claims arising out of occurrences which take place after the entry into force for each State of this Protocol.

4. Nothing in this Protocol shall affect the obligations of a State which is a Party both to the Convention and to this Protocol with respect to a State which is a Party to the Convention but not a Party to this Protocol.

SCHEDULE 2(Section 35)

PART 1

Text of Articles 1 to 22 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as amended by the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

Article 1
Definitions

In this Convention the following expressions have the meaning hereby assigned to them:

1. (a) “carrier” means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by him or by a performing carrier;

(b) “performing carrier” means a person other than the carrier, being the owner, charterer or operator of a ship, who actually performs the whole or a part of the carriage;

2. “contract of carriage” means a contract made by or on behalf of a carrier for the carriage by sea of a passenger or of a passenger and his luggage, as the case may be;

3. “ship” means only a seagoing vessel, excluding an air-cushion vehicle;

4. “passenger” means any person carried in a ship,

(a) under a contract of carriage, or

(b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods not governed by this Convention;

5. “luggage” means any article or vehicle carried by the carrier under a contract of carriage, excluding:

(a) articles and vehicles carried under a charter party, bill of lading or other contract primarily concerned with the carriage of goods, and

(b) live animals;

6. “cabin luggage” means luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Except for the application of paragraph 8 of this Article and Article 8, cabin luggage includes luggage which the passenger has in or on his vehicle;

7. “loss of or damage to luggage” includes pecuniary loss resulting from the luggage not having been re-delivered to the passenger within a reasonable time after the arrival of the ship on which the luggage has been or should have been carried, but does not include delays resulting from labour disputes;

8. “carriage” covers the following periods:

(a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation;

(b) with regard to cabin luggage, also the period during which the passenger is in a marine terminal or station or on a quay or in or on any other port installation if that luggage has been taken over by the carrier or his servant or agent and has not been re-delivered to the passenger;

(c) with regard to other luggage which is not cabin luggage, the period from the time of its taking over by the carrier or his servant or agent on shore or on board until the time of its re-delivery by the carrier or his servant or agent;

9. “international carriage” means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State;

10. “Organization” means the International Maritime Organization.

Article 2
Application

1. This Convention shall apply to any international carriage if:

(a) the ship is flying the flag of or is registered in a State Party to this Convention, or

(b) the contract of carriage has been made in a State Party to this Convention, or

(c) the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.

2. Notwithstanding paragraph 1 of this Article, this Convention shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another mode of transport, to a civil liability regime under the provisions of such convention, in so far as those provisions have mandatory application to carriage by sea.

Article 3
Liability of the carrier

1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.

2. The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or damage, shall lie with the claimant.

3. Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connexion with the shipwreck, collision, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant.

Article 4
Performing carrier

1. If the performance of the carriage or part thereof has been entrusted to a performing carrier, the carrier shall nevertheless remain liable for the entire carriage according to the provisions of this Convention. In addition, the performing carrier shall be subject and entitled to the provisions of this Convention for the part of the carriage performed by him.

2. The carrier shall, in relation to the carriage performed by the performing carrier, be liable for the acts and omissions of the performing carrier and of his servants or agents acting within the scope of their employment.

3. Any special agreement under which the carrier assumes obligations not imposed by this Convention or any waiver of rights conferred by this Convention shall affect the performing carrier only if agreed by him expressly and in writing.

4. Where and to the extent that both the carrier and the performing carrier are liable, their liability shall be joint and several.

5. Nothing in this Article shall prejudice any right of recourse as between the carrier and the performing carrier.

Article 5
Valuables

The carrier shall not be liable for the loss of or damage to monies, negotiable securities, gold, silverware, jewellery, ornaments, works of art, or other valuables, except where such valuables have been deposited with the carrier for the agreed purpose of safe-keeping in which case the carrier shall be liable up to the limit provided for in paragraph 3 of Article 8 unless a higher limit is agreed upon in accordance with paragraph 1 of Article 10.

Article 6
Contributory fault

If the carrier proves that the death of or personal injury to a passenger or the loss of or damage to his luggage was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of the law of that court.

Article 7
Limit of liability for personal injury

1. The liability of the carrier for the death of or personal injury to a passenger shall in no case exceed 175,000 units of account per carriage. Where, in accordance with the law of the court seized of the case, damages are awarded in the form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit.

2. Notwithstanding paragraph 1 of this Article, the national law of any State Party to this Convention may fix, as far as carriers who are nationals of such State are concerned, a higher per capita limit of liability.

Article 8
Limit of liability for loss of or damage to luggage

1. The liability of the carrier for the loss of or damage to cabin luggage shall in no case exceed 1,800 units of account per passenger, per carriage.

2. The liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle shall in no case exceed 10,000 units of account per vehicle, per carriage.

3. The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 of this article shall in no case exceed 2,700 units of account per passenger, per carriage.

4. The carrier and the passenger may agree that the liability of the carrier shall be subject to a deductible not exceeding 300 units of account in the case of damage to a vehicle and not exceeding 135 units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage.

Article 9
Unit of account and conversion

1. The unit of account mentioned in this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in article 7, paragraph 1, and article 8 shall be converted into the national currency of the State of the court seized of the case on the basis of the value of that currency by reference to the Special Drawing Right on the date of the judgment or the date agreed upon by the parties. 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 Party.

2. Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this article 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 1 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.

3. The calculation mentioned in the last sentence of paragraph 1, and the conversion mentioned in paragraph 2 shall be made in such a manner as to express in the national currency of the States Parties, as far as possible, the same real value for the amounts in article 7, paragraph 1, and article 8 as would result from the application of the first three sentences of paragraph 1. States shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 2, 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.

Article 10
Supplementary provisions on limits of liability

1. The carrier and the passenger may agree, expressly and in writing, to higher limits of liability than those prescribed in Articles 7 and 8.

2. Interest on damages and legal costs shall not be included in the limits of liability prescribed in Articles 7 and 8.

Article 11
Defences and limits for carriers’ servants

If an action is brought against a servant or agent of the carrier or of the performing carrier arising out of a damage covered by this Convention, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the defences and limits of liability which the carrier or the performing carrier is entitled to invoke under this Convention.

Article 12
Aggregation of claims

1. Where the limits of liability prescribed in Articles 7 and 8 take effect, they shall apply to the aggregate of the amounts recoverable in all claims arising out of the death of or personal injury to any one passenger or the loss of or damage to his luggage.

2. In relation to the carriage performed by a performing carrier, the aggregate of the amounts recoverable from the carrier and the performing carrier and from their servants and agents acting within the scope of their employment shall not exceed the highest amount which could be awarded against either the carrier or the performing carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.

3. In any case where a servant or agent of the carrier or of the performing carrier is entitled under Article 11 of this Convention to avail himself of the limits of liability prescribed in Articles 7 and 8, the aggregate of the amounts recoverable from the carrier, or the performing carrier as the case may be, and from that servant or agent, shall not exceed those limits.

Article 13
Loss of right to limit liability

1. The carrier shall not be entitled to the benefit of the limits of liability prescribed in Articles 7 and 8 and paragraph 1 of Article 10, if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

2. The servant or agent of the carrier or of the performing carrier shall not be entitled to the benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

Article 14
Basis for claims

No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.

Article 15
Notice of loss or damage to luggage

1. The passenger shall give written notice to the carrier or his agent:

(a) in the case of apparent damage to luggage:

(i) for cabin luggage, before or at the time of disembarkation of the passenger;

(ii) for all other luggage, before or at the time of its re-delivery;

(b) in the case of damage to luggage which is not apparent, or loss of luggage, within fifteen days from the date of disembarkation or re-delivery or from the time when such re-delivery should have taken place.

2. If the passenger fails to comply with this Article, he shall be presumed, unless the contrary is proved, to have received the luggage undamaged.

3. The notice in writing need not be given if the condition of the luggage has at the time of its receipt been the subject of joint survey or inspection.

Article 16
Time-bar for actions

1. Any action for damages arising out of the death of or personal injury to a passenger or of the loss of or damage to luggage shall be time-barred after a period of two years.

2. The limitation period shall be calculated as follows:

(a) in the case of personal injury, from the date of disembarkation of the passenger;

(b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation;

(c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.

3. The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later.

4. Notwithstanding paragraphs 1, 2 and 3 of this Article, the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing.

Article 17
Competent jurisdiction

1. An action arising under this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention:

(a) the court of the place of permanent residence or principal place of business of the defendant, or

(b) the court of the place of departure or that of the destination according to the contract of carriage, or

(c) a court of the State of the domicile or permanent residence of the claimant, if the defendant has a place of business and is subject to jurisdiction in that State, or

(d) a court of the State where the contract of carriage was made, if the defendant has a place of business and is subject to jurisdiction in that State.

2. After the occurrence of the incident which has caused the damage, the parties may agree that the claim for damages shall be submitted to any jurisdiction or to arbitration.

Article 18
Invalidity of contractual provisions

Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to his luggage, purporting to relieve the carrier of his liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in paragraph 4 of Article 8, and any such provision purporting to shift the burden of proof which rests on the carrier, or having the effect of restricting the option specified in paragraph 1 of Article 17, shall be null and void, but the nullity of that provision shall not render void the contract of carriage which shall remain subject to the provisions of this Convention.

Article 19
Other conventions on limitation of liability

This Convention shall not modify the rights or duties of the carrier, the performing carrier, and their servants or agents provided for in international conventions relating to the limitation of liability of owners of seagoing ships.

Article 20
Nuclear damage

No liability shall arise under this Convention for damage caused by a nuclear incident:

(a) if the operator of a nuclear installation is liable for such damage under either the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by its additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or

(b) if the operator of a nuclear installation is liable for such damage by virtue of a national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions.

Article 21
Commercial carriage by public authorities

This Convention shall apply to commercial carriage undertaken by States or Public Authorities under contracts of carriage within the meaning of Article 1.

Article 22
Declaration of non-application

1. Any Party may at the time of signing, ratifying, accepting, approving or acceding to this Convention, declare in writing that it will not give effect to this Convention when the passenger and the carrier are subjects or nationals of that Party.

2. Any declaration made under paragraph 1 of this Article may be withdrawn at any time by a notification in writing to the Secretary-General of the Organization.

PART 2

Text of Articles III and VIII of the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974

Article III

1. The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.

2. A State which is a Party to this Protocol but not a Party to the Convention shall be bound by the provisions of the Convention as amended by this Protocol in relation to other States Parties hereto, but shall not be bound by the provisions of the Convention in relation to States Parties only to the Convention.

3. Nothing in this Protocol shall affect the obligations of a State which is a Party both to the Convention and to this Protocol with respect to a State which is a Party to the Convention but not a Party to this Protocol.

Article VIII
Amendment of limits

1. Upon the request of at least one half, but in no case less than six, of the States Parties to this Protocol, any proposal to amend the limits, including the deductibles, specified in article 7, paragraph 1, and article 8 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.

2. Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization (hereinafter referred to as “the Legal Committee”) for consideration at a date at least six months after the date of its circulation.

3. All Contracting States to the Convention as amended by this Protocol, 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.

4. Amendments shall be adopted by a two-thirds majority of the Contracting States to the Convention as amended by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States to the Convention as amended by this Protocol shall be present at the time of voting.

5. When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and, 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.

(a) No amendment of the limits under this article may be considered less than five years from the date on which 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 the limit laid down in the Convention as amended by 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 the limit laid down in the Convention as amended by this Protocol multiplied by three.

7. Any amendment adopted in accordance with paragraph 4 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 not less than one fourth of the States that 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.

8. An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance.

9. All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with paragraphs 1 and 2 of article VI at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.

10. 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 7. 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.

SCHEDULE 3(Section 41)HAGUE-VISBY RULES

Article I
Definitions

In these Rules the following expressions have the meanings hereby assigned to them respectively, that is to say,

(a) “carrier” includes the owner or the charterer who enters into a contract of carriage with a shipper;

(b) “contract of carriage” applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by water, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter-party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same;

(c) “goods” includes goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried;

(d) “ship” means any vessel used for the carriage of goods by water;

(e) “carriage of goods” covers the period from the time when the goods are loaded on to the time they are discharged from the ship.

Article II
Risks

Subject to the provisions of Article VI, under every contract of carriage of goods by water the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth.

Article III
Responsibilities and Liabilities

1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to

(a) make the ship seaworthy;

(b) properly man, equip and supply the ship;

(c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.

3. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things

(a) the leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage;

(b) either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper;

(c) the apparent order and condition of the goods:

Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.

4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3(a), (b) and (c).

However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith.

5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.

6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.

Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.

In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.

6.bis An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.

7. After the goods are loaded the bill of lading to be issued by the carrier, master or agent of the carrier, to the shipper shall, if the shipper so demands, be a “shipped” bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods, he shall surrender the same as against the issue of the “shipped” bill of lading, but at the option of the carrier such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this Article be deemed to constitute a “shipped” bill of lading.

8. Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect.

A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability.

Article IV
Rights and Immunities

1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III.

Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from

(a) act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship;

(b) fire, unless caused by the actual fault or privity of the carrier;

(c) perils, dangers and accidents of the sea or other navigable waters;

(d) act of God;

(e) act of war;

(f) act of public enemies;

(g) arrest or restraint of princes, rulers or people, or seizure under legal process;

(h) quarantine restrictions;

(i) act or omission of the shipper or owner of the goods, his agent or representative;

(j) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general;

(k) riots and civil commotions;

(l) saving or attempting to save life or property at sea;

(m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods;

(n) insufficiency of packing;

(o) insufficiency or inadequacy of marks;

(p) latent defects not discoverable by due diligence;

(q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.

4. Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.

(a) Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher.

(b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged.

The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.

(c) Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit.

(d) The unit of account mentioned in this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in sub-paragraph (a) of this paragraph shall be converted into national currency on the basis of the value of that currency on the date to be determined by the law of the Court seized of the case. The value of the national currency, in terms of the Special Drawing Right, of a State 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 at 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 which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State.

Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of the preceding sentences may, at the time of ratification of the Protocol of 1979 or accession thereto or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in its territory shall be fixed as follows:

(i) in respect of the amount of 666.67 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 10,000 monetary units;

(ii) in respect of the amount of 2 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 30 monetary units.

The monetary unit referred to in the preceding sentence corresponds to 65.5 milligrammes of gold of millesimal fineness 900. The conversion of the amounts specified in that sentence into the national currency shall be made according to the law of the State concerned. The calculation and the conversion mentioned in the preceding sentences shall be made in such a manner as to express in the national currency of that State as far as possible the same real value for the amounts in sub-paragraph (a) of paragraph 5 of this Article as is expressed there in units of account.

States shall communicate to the depositary the manner of calculation or the result of the conversion as the case may be, when depositing an instrument of ratification of the Protocol of 1979 or of accession thereto and whenever there is a change in either.

(e) Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result.

(f) The declaration mentioned in sub-paragraph (a) of this paragraph, if embodied in the bill of lading, shall be prima facie evidence, but shall not be binding or conclusive on the carrier.

(g) By agreement between the carrier, master or agent of the carrier and the shipper other maximum amounts than those mentioned in sub-paragraph (a) of this paragraph may be fixed, provided that no maximum amount so fixed shall be less than the appropriate maximum mentioned in that sub-paragraph.

(h) Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly mis-stated by the shipper in the bill of lading.

6. Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment.

If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any.

Article IV BIS
Application of Defences and Limits of Liability

1. The defences and limits of liability provided for in these Rules shall apply in any action against the carrier in respect of loss or damage to goods covered by a contract of carriage whether the action be founded in contract or in tort.

2. If such an action is brought against a servant or agent of the carrier (such servant or agent not being an independent contractor), such servant or agent shall be entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under these Rules.

3. The aggregate of the amounts recoverable from the carrier, and such servants and agents, shall in no case exceed the limit provided for in these Rules.

4. Nevertheless, a servant or agent of the carrier shall not be entitled to avail himself of the provisions of this Article, if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

Article V
Surrender of Rights and Immunities, and Increase of Responsibilities and Liabilities

A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and liabilities under the Rules contained in any of these Articles, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper.

The provisions of these Rules shall not be applicable to charter-parties, but if bills of lading are issued in the case of a ship under a charter-party they shall comply with the terms of these Rules. Nothing in these Rules shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average.

Article VI
Special Conditions

Notwithstanding the provisions of the preceding Articles, a carrier, master or agent of the carrier and a shipper shall in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by water, provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non-negotiable document and shall be marked as such.

Any agreement so entered into shall have full legal effect.

Provided that this Article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.

Article VII
Limitations on the Application of the Rules

Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by water.

Article VIII
Limitation of Liability

The provisions of these Rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of owners of vessels.

Article IX
Liability for Nuclear Damage

These Rules shall not affect the provisions of any international Convention or national law governing liability for nuclear damage.

Article X
Application

The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if:

(a) the bill of lading is issued in a Contracting State, or

(b) the carriage is from a port in a Contracting State, or

(c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract,

whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person.

SCHEDULE 4(Section 41)HAMBURG RULES

UNITED NATIONS CONVENTION ON THE CARRIAGE OF GOODS BY SEA, 1978

Preamble

THE STATES PARTIES TO THIS CONVENTION,

HAVING RECOGNIZED the desirability of determining by agreement certain rules relating to the carriage of goods by sea,

HAVE DECIDED to conclude a Convention for this purpose and have thereto agreed as follows:

PART I
GENERAL PROVISIONS

Article 1
Definitions

In this Convention:

1. “Carrier” means any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper.

2. “Actual carrier” means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted.

3. “Shipper” means any person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier, or any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in relation to the contract of carriage by sea.

4. “Consignee” means the person entitled to take delivery of the goods.

5. “Goods” includes live animals; where the goods are consolidated in a container, pallet or similar article of transport or where they are packed, “goods” includes such article of transport or packaging if supplied by the shipper.

6. “Contract of carriage by sea” means any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another; however, a contract which involves carriage by sea and also carriage by some other means is deemed to be a contract of carriage by sea for the purposes of this Convention only in so far as it relates to the carriage by sea.

7. “Bill of lading” means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking.

8. “Writing” includes, inter alia, telegram and telex.

Article 2
Scope of application

1. The provisions of this Convention are applicable to all contracts of carriage by sea between two different States, if:

(a) the port of loading as provided for in the contract of carriage by sea is located in a Contracting State, or

(b) the port of discharge as provided for in the contract of carriage by sea is located in a Contracting State, or

(c) one of the optional ports of discharge provided for in the contract of carriage by sea is the actual port of discharge and such port is located in a Contracting State, or

(d) the bill of lading or other document evidencing the contract of carriage by sea is issued in a Contracting State, or

(e) the bill of lading or other document evidencing the contract of carriage by sea provides that the provisions of this Convention or the legislation of any State giving effect to them are to govern the contract.

2. The provisions of this Convention are applicable without regard to the nationality of the ship, the carrier, the actual carrier, the shipper, the consignee or any other interested person.

3. The provisions of this Convention are not applicable to charter-parties. However, where a bill of lading is issued pursuant to a charter-party, the provisions of the Convention apply to such a bill of lading if it governs the relation between the carrier and the holder of the bill of lading, not being the charterer.

4. If a contract provides for future carriage of goods in a series of shipments during an agreed period, the provisions of this Convention apply to each shipment. However, where a shipment is made under a charter-party, the provisions of paragraph 3 of this article apply.

Article 3
Interpretation of the Convention

In the interpretation and application of the provisions of this Convention regard shall be had to its international character and to the need to promote uniformity.

PART II
LIABILITY OF THE CARRIER

Article 4
Period of responsibility

1. The responsibility of the carrier for the goods under this Convention covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge.

2. For the purpose of paragraph 1 of this article, the carrier is deemed to be in charge of the goods

(a) from the time he has taken over the goods from:

(i) the shipper, or a person acting on his behalf; or

(ii) an authority or other third party to whom, pursuant to law or regulations applicable at the port of loading, the goods must be handed over for shipment;

(b) until the time he has delivered the goods:

(i) by handing over the goods to the consignee; or

(ii) in cases where the consignee does not receive the goods from the carrier, by placing them at the disposal of the consignee in accordance with the contract or with the law or with the usage of the particular trade, applicable at the port of discharge; or

(iii) by handing over the goods to an authority or other third party to whom, pursuant to law or regulations applicable at the port of discharge, the goods must be handed over.

3. In paragraphs 1 and 2 of this article, reference to the carrier or to the consignee means, in addition to the carrier or the consignee, the servants or agents, respectively of the carrier or the consignee.

Article 5
Basis of liability

1. The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in article 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.

2. Delay in delivery occurs when the goods have not been delivered at the port of discharge provided for in the contract of carriage by sea within the time expressly agreed upon or, in the absence of such agreement, within the time which it would be reasonable to require of a diligent carrier, having regard to the circumstances of the case.

3. The person entitled to make a claim for the loss of goods may treat the goods as lost if they have not been delivered as required by article 4 within 60 consecutive days following the expiry of the time for delivery according to paragraph 2 of this article.

(a) The carrier is liable

(i) for loss of or damage to the goods or delay in delivery caused by fire, if the claimant proves that the fire arose from fault or neglect on the part of the carrier, his servants or agents;

(ii) for such loss, damage or delay in delivery which is proved by the claimant to have resulted from the fault or neglect of the carrier, his servants or agents, in taking all measures that could reasonably be required to put out the fire and avoid or mitigate its consequences.

(b) In case of fire on board the ship affecting the goods, if the claimant or the carrier so desires, a survey in accordance with shipping practices must be held into the cause and circumstances of the fire, and a copy of the surveyor’s report shall be made available on demand to the carrier and the claimant.

5. With respect to live animals, the carrier is not liable for loss, damage or delay in delivery resulting from any special risks inherent in that kind of carriage. If the carrier proves that he has complied with any special instructions given to him by the shipper respecting the animals and that, in the circumstances of the case, the loss, damage or delay in delivery could be attributed to such risks, it is presumed that the loss, damage or delay in delivery was so caused, unless there is proof that all or a part of the loss, damage or delay in delivery resulted from fault or neglect on the part of the carrier, his servants or agents.

6. The carrier is not liable, except in general average, where loss, damage or delay in delivery resulted from measures to save life or from reasonable measures to save property at sea.

7. Where fault or neglect on the part of the carrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery the carrier is liable only to the extent that the loss, damage or delay in delivery is attributable to such fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto.

Article 6
Limits of liability

(a) The liability of the carrier for loss resulting from loss of or damage to goods according to the provisions of article 5 is limited to an amount equivalent to 835 units of account per package or other shipping unit or 2.5 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher.

(b) The liability of the carrier for delay in delivery according to the provisions of article 5 is limited to an amount equivalent to two and a half times the freight payable for the goods delayed, but not exceeding the total freight payable under the contract of carriage of goods by sea.

(c) In no case shall the aggregate liability of the carrier, under both subparagraphs (a) and (b) of this paragraph, exceed the limitation which would be established under subparagraph (a) of this paragraph for total loss of the goods with respect to which such liability was incurred.

2. For the purpose of calculating which amount is the higher in accordance with paragraph 1(a) of this article, the following rules apply:

(a) Where a container, pallet or similar article of transport is used to consolidate goods, the package or other shipping units enumerated in the bill of lading, if issued, or otherwise in any other document evidencing the contract of carriage by sea, as packed in such article of transport are deemed packages or shipping units. Except as aforesaid the goods in such article of transport are deemed one shipping unit.

(b) In cases where the article of transport itself has been lost or damaged, that article of transport, if not owned or otherwise supplied by the carrier, is considered one separate shipping unit.

3. Unit of account means the unit of account mentioned in article 26.

4. By agreement between the carrier and the shipper, limits of liability exceeding those provided for in paragraph 1 may be fixed.

Article 7
Application to non-contractual claims

1. The defences and limits of liability provided for in this Convention apply in any action against the carrier in respect of loss or damage to the goods covered by the contract of carriage by sea, as well as of delay in delivery whether the action is founded in contract, in tort or otherwise.

2. If such an action is brought against a servant or agent of the carrier, such servant or agent, if he proves that he acted within the scope of his employment, is entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under this Convention.

3. Except as provided in article 8, the aggregate of the amounts recoverable from the carrier and from any persons referred to in paragraph 2 of this article shall not exceed the limits of liability provided for in this Convention.

Article 8
Loss of right to limit responsibility

1. The carrier is not entitled to the benefit of the limitation of liability provided for in article 6 if it is proved that the loss, damage or delay in delivery resulted from an act or omission of the carrier done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.

2. Notwithstanding the provisions of paragraph 2 of article 7, a servant or agent of the carrier is not entitled to the benefit of the limitation of liability provided for in article 6 if it is proved that the loss, damage or delay in delivery resulted from an act or omission of such servant or agent, done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.

Article 9
Deck cargo

1. The carrier is entitled to carry the goods on deck only if such carriage is in accordance with an agreement with the shipper or with the usage of the particular trade or is required by statutory rules or regulations.

2. If the carrier and the shipper have agreed that the goods shall or may be carried on deck, the carrier must insert in the bill of lading or other document evidencing the contract of carriage by sea a statement to that effect. In the absence of such a statement the carrier has the burden of proving that an agreement for carriage on deck has been entered into; however, the carrier is not entitled to invoke such an agreement against a third party, including a consignee, who has acquired the bill of lading in good faith.

3. Where the goods have been carried on deck contrary to the provisions of paragraph 1 of this article or where the carrier may not under paragraph 2 of this article invoke an agreement for carriage on deck, the carrier, notwithstanding the provisions of paragraph 1 of article 5, is liable for loss of or damage to the goods, as well as for delay in delivery, resulting solely from the carriage on deck, and the extent of his liability is to be determined in accordance with the provisions of article 6 or article 8 of this Convention, as the case may be.

4. Carriage of goods on deck contrary to express agreement for carriage under deck is deemed to be an act or omission of the carrier within the meaning of article 8.

Article 10
Liability of the carrier and actual carrier

1. Where the performance of the carriage or part thereof has been entrusted to an actual carrier, whether or not in pursuance of a liberty under the contract of carriage by sea to do so, the carrier nevertheless remains responsible for the entire carriage according to the provisions of this Convention. The carrier is responsible, in relation to the carriage performed by the actual carrier, for the acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment.

2. All the provisions of this Convention governing the responsibility of the carrier also apply to the responsibility of the actual carrier for the carriage performed by him. The provisions of paragraphs 2 and 3 of article 7 and of paragraph 2 of article 8 apply if an action is brought against a servant or agent of the actual carrier.

3. Any special agreement under which the carrier assumes obligations not imposed by this Convention or waives rights conferred by this Convention affects the actual carrier only if agreed to by him expressly and in writing. Whether or not the actual carrier has so agreed, the carrier nevertheless remains bound by the obligations or waivers resulting from such special agreement.

4. Where and to the extent that both the carrier and the actual carrier are liable, their liability is joint and several.

5. The aggregate of the amounts recoverable from the carrier, the actual carrier and their servants and agents shall not exceed the limits of liability provided for in this Convention.

6. Nothing in this article shall prejudice any right of recourse as between the carrier and the actual carrier.

Article 11
Through carriage

1. Notwithstanding the provisions of paragraph 1 of article 10, where a contract of carriage by sea provides explicitly that a specified part of the carriage covered by the said contract is to be performed by a named person other than the carrier, the contract may also provide that the carrier is not liable for loss, damage or delay in delivery caused by an occurrence which takes place while the goods are in the charge of the actual carrier during such part of the carriage. Nevertheless, any stipulation limiting or excluding such liability is without effect if no judicial proceedings can be instituted against the actual carrier in a court competent under paragraph 1 or 2 of article 21. The burden of proving that any loss, damage or delay in delivery has been caused by such an occurrence rests upon the carrier.

2. The actual carrier is responsible in accordance with the provisions of paragraph 2 of article 10 for loss, damage or delay in delivery caused by an occurrence which takes place while the goods are in his charge.

PART III
LIABILITY OF THE SHIPPER

Article 12
General rule

The shipper is not liable for loss sustained by the carrier or the actual carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on his part.

Article 13
Special rules on dangerous goods

1. The shipper must mark or label in a suitable manner dangerous goods as dangerous.

2. Where the shipper hands over dangerous goods to the carrier or an actual carrier, as the case may be, the shipper must inform him of the dangerous character of the goods and, if necessary, of the precautions to be taken. If the shipper fails to do so and such carrier or actual carrier does not otherwise have knowledge of their dangerous character:

(a) the shipper is liable to the carrier and any actual carrier for the loss resulting from the shipment of such goods, and

(b) the goods may at any time be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation.

3. The provisions of paragraph 2 of this article may not be invoked by any person if during the carriage he has taken the goods in his charge with knowledge of their dangerous character.

4. If, in cases where the provisions of paragraph 2, subparagraph (b), of this article do not apply or may not be invoked, dangerous goods become an actual danger to life or property, they may be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation except where there is an obligation to contribute in general average or where the carrier is liable in accordance with the provisions of article 5.

PART IV
TRANSPORT DOCUMENTS

Article 14
Issue of bill of lading

1. When the carrier or the actual carrier takes the goods in his charge, the carrier must, on demand of the shipper, issue to the shipper a bill of lading.

2. The bill of lading may be signed by a person having authority from the carrier. A bill of lading signed by the master of the ship carrying the goods is deemed to have been signed on behalf of the carrier.

3. The signature on the bill of lading may be in handwriting, printed in facsimile, perforated, stamped, in symbols, or made by an other mechanical or electronic means, if not inconsistent with the law of the country where the bill of lading is issued.

Article 15
Contents of bill of lading

1. The bill of lading must include, inter alia, the following particulars:

(a) the general nature of the goods, the leading marks necessary for identification of the goods, an express statement, if applicable, as to the dangerous character of the goods, the number of packages or pieces, and the weight of the goods or their quantity otherwise expressed, all such particulars as furnished by the shipper;

(b) the apparent condition of the goods;

(c) the name and principal place of business of the carrier;

(d) the name of the shipper;

(e) the consignee if named by the shipper;

(f) the port of loading under the contract of carriage by sea and the date on which the goods were taken over by the carrier at the port of loading;

(g) the port of discharge under the contract of carriage by sea;

(h) the number of originals of the bill of lading, if more than one;

(i) the place of issuance of the bill of lading;

(j) the signature of the carrier or a person acting on his behalf;

(k) the freight to the extent payable by the consignee or other indication that freight is payable by him;

(l) the statement referred to in paragraph 3 of article 23;

(m) the statement, if applicable, that the goods shall or may be carried on deck;

(n) the date or the period of delivery of the goods at the port of discharge if expressly agreed upon between the parties; and

(o) any increased limit or limits of liability where agreed in accordance with paragraph 4 of article 6.

2. After the goods have been loaded on board, if the shipper so demands, the carrier must issue to the shipper a “shipped” bill of lading which, in addition to the particulars required under paragraph 1 of this article, must state that the goods are on board a named ship or ships, and the date or dates of loading. If the carrier has previously issued to the shipper a bill of lading or other document of title with respect to any of such goods, on request of the carrier, the shipper must surrender such document in exchange for a “shipped” bill of lading. The carrier may amend any previously issued document in order to meet the shipper’s demand for a “shipped” bill of lading if, as amended, such document includes all the information required to be contained in a “shipped” bill of lading.

3. The absence in the bill of lading of one or more particulars referred to in this article does not affect the legal character of the document as a bill of lading provided that it nevertheless meets the requirements set out in paragraph 7 of article 1.

Article 16
Bills of lading: reservations and evidentiary effect

1. If the bill of lading contains particulars concerning the general nature, leading marks, number of packages or pieces, weight or quantity of the goods which the carrier or other person issuing the bill of lading on his behalf knows or has reasonable grounds to suspect do not accurately represent the goods actually taken over or, where a “shipped” bill of lading is issued, loaded, or if he had no reasonable means of checking such particulars, the carrier or such other person must insert in the bill of lading a reservation specifying these inaccuracies, grounds of suspicion or the absence of reasonable means of checking.

2. If the carrier or other person issuing the bill of lading on his behalf fails to note on the bill of lading the apparent condition of the goods, he is deemed to have noted on the bill of lading that the goods were in apparent good condition.

3. Except for particulars in respect of which and to the extent to which a reservation permitted under paragraph 1 of this article has been entered:

(a) the bill of lading is prima facie evidence of the taking over or, where a “shipped” bill of lading is issued, loading, by the carrier of the goods as described in the bill of lading; and

(b) proof to the contrary by the carrier is not admissible if the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance on the description of the goods therein.

4. A bill of lading which does not, as provided in paragraph 1, subparagraph (k) of article 15, set forth the freight or otherwise indicate that freight is payable by the consignee or does not set forth demurrage incurred at the port of loading payable by the consignee, is prima facie evidence that no freight or such demurrage is payable by him. However, proof to the contrary by the carrier is not admissible when the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance on the absence in the bill of lading of any such indication.

Article 17
Guarantees by the shipper

1. The shipper is deemed to have guaranteed to the carrier the accuracy of particulars relating to the general nature of the goods, their marks, number, weight and quantity as furnished by him for insertion in the bill of lading. The shipper must indemnify the carrier against the loss resulting from inaccuracies in such particulars. The shipper remains liable even if the bill of lading has been transferred by him. The right of the carrier to such indemnity in no way limits his liability under the contract of carriage by sea to any person other than the shipper.

2. Any letter of guarantee or agreement by which the shipper undertakes to indemnify the carrier against loss resulting from the issuance of the bill of lading by the carrier, or by a person acting on his behalf, without entering a reservation relating to particulars furnished by the shipper for insertion in the bill of lading, or to the apparent condition of the goods, is void and of no effect as against any third party, including a consignee, to whom the bill of lading has been transferred.

3. Such letter of guarantee or agreement is valid as against the shipper unless the carrier or the person acting on his behalf, by omitting the reservation referred to in paragraph 2 of this article, intends to defraud a third party, including a consignee, who acts in reliance on the description of the goods in the bill of lading. In the latter case, if the reservation omitted relates to particulars furnished by the shipper for insertion in the bill of lading, the carrier has no right of indemnity from the shipper pursuant to paragraph 1 of this article.

4. In the case of intended fraud referred to in paragraph 3 of this article the carrier is liable, without the benefit of the limitation of liability provided for in this Convention, for the loss incurred by a third party, including a consignee, because he has acted in reliance on the description of the goods in the bill of lading.

Article 18
Documents other than bills of lading

Where a carrier issues a document other than a bill of lading to evidence the receipt of the goods to be carried, such a document is prima facie evidence of the conclusion of the contract of carriage by sea and the taking over by the carrier of the goods as therein described.

PART V
CLAIMS AND ACTIONS

Article 19
Notice of loss, damage or delay

1. Unless notice of loss or damage, specifying the general nature of such loss or damage, is given in writing by the consignee to the carrier not later than the working day after the day when the goods were handed over to the consignee, such handing over is prima facie evidence of the delivery by the carrier of the goods as described in the document of transport or, if no such document has been issued, in good condition.

2. Where the loss or damage is not apparent, the provisions of paragraph 1 of this article apply correspondingly if notice in writing is not given within 15 consecutive days after the day when the goods were handed over to the consignee.

3. If the state of the goods at the time they were handed over to the consignee has been the subject of a joint survey or inspection by the parties, notice in writing need not be given of loss or damage ascertained during such survey or inspection.

4. In the case of any actual or apprehended loss or damage the carrier and the consignee must give all reasonable facilities to each other for inspecting and tallying the goods.

5. No compensation shall be payable for loss resulting from delay in delivery unless a notice has been given in writing to the carrier within 60 consecutive days after the day when the goods were handed over to the consignee.

6. If the goods have been delivered by an actual carrier, any notice given under this article to him shall have the same effect as if it had been given to the carrier, and any notice given to the carrier shall have effect as if given to such actual carrier.

7. Unless notice of loss or damage, specifying the general nature of the loss or damage, is given in writing by the carrier or actual carrier to the shipper not later than 90 consecutive days after the occurrence of such loss or damage or after the delivery of the goods in accordance with paragraph 2 of article 4, whichever is later, the failure to give such notice is prima facie evidence that the carrier or the actual carrier has sustained no loss or damage due to the fault or neglect of the shipper, his servants or agents.

8. For the purpose of this article, notice given to a person acting on the carrier’s or the actual carrier’s behalf, including the master or the officer in charge of the ship, or to a person acting on the shipper’s behalf is deemed to have been given to the carrier, to the actual carrier or to the shipper, respectively.

Article 20
Limitation of actions

1. Any action relating to carriage of goods under this Convention is time-barred if judicial or arbitral proceedings have not been instituted within a period of two years.

2. The limitation period commences on the day on which the carrier has delivered the goods or part thereof or, in cases where no goods have been delivered, on the last day on which the goods should have been delivered.

3. The day on which the limitation period commences is not included in the period.

4. The person against whom a claim is made may at any time during the running of the limitation period extend that period by a declaration in writing to the claimant. This period may be further extended by another declaration or declarations.

5. An action for indemnity by a person held liable may be instituted even after the expiration of the limitation period provided for in the preceding paragraphs if instituted within the time allowed by the law of the State where proceedings are instituted. However, the time allowed shall not be less than 90 days commencing from the day when the person instituting such action for indemnity has settled the claim or has been served with process in the action against himself.

Article 21
Jurisdiction

1. In judicial proceedings relating to carriage of goods under this Convention the plaintiff, at his option, may institute an action in a court which, according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated one of the following places:

(a) the principal place of business or, in the absence thereof, the habitual residence of the defendant; or

(b) the place where the contract was made provided that the defendant has there a place of business, branch or agency through which the contract was made; or

(c) the port of loading or the port of discharge; or

(d) any additional place designated for that purpose in the contract of carriage by sea.

(a) Notwithstanding the preceding provisions of this article, an action may be instituted in the courts of any port or place in a Contracting State at which the carrying vessel or any other vessel of the same ownership may have been arrested in accordance with applicable rules of the law of that State and of international law. However, in such a case, at the petition of the defendant, the claimant must remove the action, at his choice, to one of the jurisdictions referred to in paragraph 1 of this article for the determination of the claim, but before such removal the defendant must furnish security sufficient to ensure payment of any judgement that may subsequently be awarded to the claimant in the action.

(b) All questions relating to the sufficiency or otherwise of the security shall be determined by the court of the port or place of the arrest.

3. No judicial proceedings relating to carriage of goods under this Convention may be instituted in a place not specified in paragraph 1 or 2 of this article. The provisions of this paragraph do not constitute an obstacle to the jurisdiction of the Contracting States for provisional or protective measures.

(a) Where an action has been instituted in a court competent under paragraph 1 or 2 of this article or where judgement has been delivered by such a court, no new action may be started between the same parties on the same grounds unless the judgement of the court before which the first action was instituted is not enforceable in the country in which the new proceedings are instituted;

(b) for the purpose of this article the institution of measures with a view to obtaining enforcement of a judgement is not to be considered as the starting of a new action;

(c) for the purpose of this article, the removal of an action to a different court within the same country, or to a court in another country, in accordance with paragraph 2(a) of this article, is not to be considered as the starting of a new action.

5. Notwithstanding the provisions of the preceding paragraphs, an agreement made by the parties, after a claim under the contract of carriage by sea has arisen, which designates the place where the claimant may institute an action, is effective.

Article 22
Arbitration

1. Subject to the provisions of this article, parties may provide by agreement evidenced in writing that any dispute that may arise relating to carriage of goods under this Convention shall be referred to arbitration.

2. Where a charter-party contains a provision that disputes arising thereunder shall be referred to arbitration and a bill of lading issued pursuant to the charter-party does not contain a special annotation providing that such provision shall be binding upon the holder of the bill of lading, the carrier may not invoke such provision as against a holder having acquired the bill of lading in good faith.

3. The arbitration proceedings shall, at the option of the claimant, be instituted at one of the following places:

(a) a place in a State within whose territory is situated:

(i) the principal place of business of the defendant or, in the absence thereof, the habitual residence of the defendant; or

(ii) the place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or

(iii) the port of loading or the port of discharge; or

(b) any place designated for that purpose in the arbitration clause or agreement.

4. The arbitrator or arbitration tribunal shall apply the rules of this Convention.

5. The provisions of paragraphs 3 and 4 of this article are deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith is null and void.

6. Nothing in this article affects the validity of an agreement relating to arbitration made by the parties after the claim under the contract of carriage by sea has arisen.

PART VI
SUPPLEMENTARY PROVISIONS

Article 23
Contractual stipulations

1. Any stipulation in a contract of carriage by sea, in a bill of lading, or in any other document evidencing the contract of carriage by sea is null and void to the extent that it derogates, directly or indirectly, from the provisions of this Convention. The nullity of such a stipulation does not affect the validity of the other provisions of the contract or document of which it forms a part. A clause assigning benefit of insurance of the goods in favour of the carrier, or any similar clause, is null and void.

2. Notwithstanding the provisions of paragraph 1 of this article, a carrier may increase his responsibilities and obligations under this Convention.

3. Where a bill of lading or any other document evidencing the contract of carriage by sea is issued, it must contain a statement that the carriage is subject to the provisions of this Convention which nullify any stipulation derogating therefrom to the detriment of the shipper or the consignee.

4. Where the claimant in respect of the goods has incurred loss as a result of a stipulation which is null and void by virtue of the present article, or as a result of the omission of the statement referred to in paragraph 3 of this article, the carrier must pay compensation to the extent required in order to give the claimant compensation in accordance with the provisions of this Convention for any loss of or damage to the goods as well as for delay in delivery. The carrier must, in addition, pay compensation for costs incurred by the claimant for the purpose of exercising his right, provided that costs incurred in the action where the foregoing provision is invoked are to be determined in accordance with the law of the State where proceedings are instituted.

Article 24
General average

1. Nothing in this Convention shall prevent the application of provisions in the contract of carriage by sea or national law regarding the adjustment of general average.

2. With the exception of article 20, the provisions of this Convention relating to the liability of the carrier for loss of or damage to the goods also determine whether the consignee may refuse contribution in general average and the liability of the carrier to indemnify the consignee in respect of any such contribution made or any salvage paid.

Article 25
Other conventions

1. This Convention does not modify the rights or duties of the carrier, the actual carrier and their servants and agents, provided for in international conventions or national law relating to the limitation of liability of owners of seagoing ships.

2. The provisions of articles 21 and 22 of this Convention do not prevent the application of the mandatory provisions of any other multilateral convention already in force at the date of this Convention [March 31, 1978] relating to matters dealt with in the said articles, provided that the dispute arises exclusively between parties having their principal place of business in States members of such other convention. However, this paragraph does not affect the application of paragraph 4 of article 22 of this Convention.

3. No liability shall arise under the provisions of this Convention for damage caused by a nuclear incident if the operator of a nuclear installation is liable for such damage:

(a) under either the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by the Additional Protocol of 28 January 1964 or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or

(b) by virtue of national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or Vienna Conventions.

4. No liability shall arise under the provisions of this Convention for any loss of or damage to or delay in delivery of luggage for which the carrier is responsible under any international convention or national law relating to the carriage of passengers and their luggage by sea.

5. Nothing contained in this Convention prevents a Contracting State from applying any other international convention which is already in force at the date of this Convention and which applies mandatorily to contracts of carriage of goods primarily by a mode of transport other than transport by sea. This provision also applies to any subsequent revision or amendment of such international convention.

Article 26
Unit of account

1. The unit of account referred to in article 6 of this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in article 6 are to be converted into the national currency of a State according to the value of such currency at the date of judgement or the date agreed upon by the parties. The value of a national currency, in terms of the Special Drawing Right, of a Contracting State which is a member of the International Monetary Fund is to be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of a national currency in terms of the Special Drawing Right of a Contracting State which is not a member of the International Monetary Fund is to be calculated in a manner determined by that State.

2. Nevertheless, those States which are not members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this article may, at the time of signature, or at the time of ratification, acceptance, approval or accession or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in their territories shall be fixed as:

12,500 monetary units per package or other shipping unit or 37.5 monetary units per kilogramme of gross weight of the goods.

3. The monetary unit referred to in paragraph 2 of this article corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the amounts referred to in paragraph 2 into the national currency is to be made according to the law of the State concerned.

4. The calculation mentioned in the last sentence of paragraph 1 and the conversion mentioned in paragraph 3 of this article is to be made in such a manner as to express in the national currency of the Contracting State as far as possible the same real value for the amounts in article 6 as is expressed there in units of account. Contracting States must communicate to the depositary the manner of calculation pursuant to paragraph 1 of this article, or the result of the conversion mentioned in paragraph 3 of this article, as the case may be, at the time of signature or when depositing their instruments of ratification, acceptance, approval or accession, or when availing themselves of the option provided for in paragraph 2 of this article and whenever there is a change in the manner of such calculation or in the result of such conversion.

PART VII
FINAL CLAUSES

Article 27
Depositary

The Secretary General of the United Nations is hereby designated as the depositary of this Convention.

Article 28
Signature, ratification, acceptance, approval, accession

1. This Convention is open for signature by all States until 30 April 1979 at the Headquarters of the United Nations, New York.

2. This Convention is subject to ratification, acceptance or approval by the signatory States.

3. After 30 April 1979, this Convention will be open for accession by all States which are not signatory States.

4. Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.

Article 29
Reservations

No reservations may be made to this Convention.

Article 30
Entry into force

1. This Convention enters into force on the first day of the month following the expiration of one year from the date of deposit of the 20th instrument of ratification, acceptance, approval or accession.

2. For each State which becomes a Contracting State to this Convention after the date of deposit of the 20th instrument of ratification, acceptance, approval or accession, this Convention enters into force on the first day of the month following the expiration of one year after the deposit of the appropriate instrument on behalf of that State.

3. Each Contracting State shall apply the provisions of this Convention to contracts of carriage by sea concluded on or after the date of the entry into force of this Convention in respect of that State.

Article 31
Denunciation of other conventions

1. Upon becoming a Contracting State to this Convention, any State party to the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 (1924 Convention) must notify the Government of Belgium as the depositary of the 1924 Convention of its denunciation of the said Convention with a declaration that the denunciation is to take effect as from the date when this Convention enters into force in respect of that State.

2. Upon the entry into force of this Convention under paragraph 1 of article 30, the depositary of this Convention must notify the Government of Belgium as the depositary of the 1924 Convention of the date of such entry into force, and of the names of the Contracting States in respect of which the Convention has entered into force.

3. The provisions of paragraphs 1 and 2 of this article apply correspondingly in respect of States parties to the Protocol signed on 23 February 1968 to amend the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924.

4. Notwithstanding article 2 of this Convention, for the purposes of paragraph 1 of this article, a Contracting State may, if it deems it desirable, defer the denunciation of the 1924 Convention and of the 1924 Convention as modified by the 1968 Protocol for a maximum period of five years from the entry into force of this Convention. It will then notify the Government of Belgium of its intention. During this transitory period, it must apply to the Contracting States this Convention to the exclusion of any other one.

Article 32
Revision and amendment

1. At the request of not less than one-third of the Contracting States to this Convention, the depositary shall convene a conference of the Contracting States for revising or amending it.

2. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Convention, is deemed to apply to the Convention as amended.

Article 33
Revision of the limitation amounts and unit of account or monetary unit

1. Notwithstanding the provisions of article 32, a conference only for the purpose of altering the amount specified in article 6 and paragraph 2 of article 26, or of substituting either or both of the units defined in paragraphs 1 and 3 of article 26 by other units is to be convened by the depositary in accordance with paragraph 2 of this article. An alteration of the amounts shall be made only because of a significant change in their real value.

2. A revision conference is to be convened by the depositary when not less than one-fourth of the Contracting States so request.

3. Any decision by the conference must be taken by a two-thirds majority of the participating States. The amendment is communicated by the depositary to all the Contracting States for acceptance and to all the States signatories of the Convention for information.

4. Any amendment adopted enters into force on the first day of the month following one year after its acceptance by two-thirds of the Contracting States. Acceptance is to be effected by the deposit of a formal instrument to that effect, with the depositary.

5. After entry into force of an amendment a Contracting State which has accepted the amendment is entitled to apply the Convention as amended in its relations with Contracting States which have not within six months after the adoption of the amendment notified the depositary that they are not bound by the amendment.

6. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Convention, is deemed to apply to the Convention as amended.

Article 34
Denunciation

1. A Contracting State may denounce this Convention at any time by means of a notification in writing addressed to the depositary.

2. The denunciation takes effect on the first day of the month following the expiration of one year after the notification is received by the depositary. Where a longer period is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

DONE at Hamburg, this thirty-first day of March one thousand nine hundred and seventy-eight, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed the present Convention.

COMMON UNDERSTANDING ADOPTED BY THE UNITED NATIONS CONFERENCE ON THE CARRIAGE OF GOODS BY SEA

It is the common understanding that the liability of the carrier under this Convention is based on the principle of presumed fault or neglect. This means that, as a rule, the burden of proof rests on the carrier but, with respect to certain cases, the provisions of the Convention modify this rule.
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