An Act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other Acts
S.C. 2009, c. 21
Assented to 2009-06-23
An Act to amend the Marine Liability Act and the Federal Courts Act and to make consequential amendments to other Acts
SUMMARY
This enactment amends Parts 3 and 4 of the Marine Liability Act to clarify certain rules of the limitation of liability of owners of ships for maritime claims and liability for the carriage of passengers, in particular the treatment of participants in adventure tourism activities.
It also amends Part 6 of that Act to implement the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 as well as the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001. The enactment continues, in Part 7, the Ship-source Oil Pollution Fund and modernizes its governance. With respect to Part 8, it includes general provisions relating to the administration and enforcement of offences under that Act and creates a maritime lien for Canadian ship suppliers against foreign vessels and establishes a general limitation period for proceedings not covered by other limitation periods.
Finally, this enactment amends the Federal Courts Act and makes consequential amendments to other Acts.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
2001, c. 6 MARINE LIABILITY ACT
1. Section 24 of the Marine Liability Act is amended by adding the following in alphabetical order:
“passenger”
« passager »
“passenger” means
(a) a person carried on board a ship in circumstances described in paragraph 2(a) or (b) of Article 7 of the Convention;
(b) a participant in an adventure tourism activity referred to in subsection 37.1(1);
(c) a person carried on board a vessel propelled manually by paddles or oars and operated for a commercial or public purpose; and
(d) a sail trainee.
“unit of account”
« unités de compte »
“unit of account” means a special drawing right issued by the International Monetary Fund.
2. Section 26 of the Act is replaced by the following:
Marginal note:Force of law
26. (1) Subject to the other provisions of this Part, Articles 1 to 15 and 18 of the Convention and Articles 8 and 9 of the Protocol have the force of law in Canada.
Marginal note:Amendments to Part 3 of Schedule 1
(2) The Governor in Council may, by regulation, amend Part 3 of Schedule 1 to add or delete a reservation made by Canada under Article 18 of the Convention.
Marginal note:Exceptions
(3) This Part does not apply to a claim that is the subject of a reservation made by Canada.
Marginal note:2001, c. 26, s. 324(2)
3. Sections 28 and 29 of the Act are replaced by the following:
Marginal note:Passenger claims
28. (1) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to passengers of a ship of less than 300 gross tonnage is the greater of
(a) 2 000 000 units of account, and
(b) 175 000 units of account multiplied by
(i) the number of passengers that the ship is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001, or
(ii) the number of passengers on board the ship, if no Canadian maritime document is required under that Act.
Marginal note:Claims — no contract of carriage
(2) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to persons carried on board a ship of less than 300 gross tonnage otherwise than under a contract of passenger carriage is the greater of
(a) 2 000 000 units of account, and
(b) 175 000 units of account multiplied by
(i) the number of passengers that the ship is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001, or
(ii) the number of persons on board the ship, if no Canadian maritime document is required under that Act.
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 the business of a ship — when they are carried on board the ship;
(b) a person carried on board a ship other than a ship operated for a commercial or public purpose;
(c) a person carried on board a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented;
(c.1) a stowaway, a trespasser or any other person who boards a ship without the consent or knowledge of the master or the owner; or
(d) a person who is a member of a class of persons prescribed under paragraph 34.1(a).
Marginal note:Other claims
29. The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28, is
(a) $1,000,000 in respect of claims for loss of life or personal injury; and
(b) $500,000 in respect of any other claims.
Marginal note:Calculation of tonnage
29.1 For the purposes of sections 28 and 29, a ship’s gross tonnage shall be calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969, concluded at London on June 23, 1969, including any amendments, whenever they are made, to the Annexes or Appendix to that Convention.
4. Subsection 30(2) of the Act is replaced by the following:
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 section 29.1.
5. Section 31 of the Act is replaced by the following:
Marginal note:Amendment of limits
31. (1) The Governor in Council may, by regulation, amend Schedule 1 to implement an amendment that is made in accordance with Article 8 of the Protocol to any of the limits of liability that are specified in paragraph 1 of Article 6 or paragraph 1 of Article 7 of the Convention.
Marginal note:Amendment of sections 28, 29 and 30
(2) The Governor in Council may, by regulation, amend the limits of liability set out in sections 28, 29 and 30.
6. The Act is amended by adding the following after section 34:
Regulations
Marginal note:Governor in Council
34.1 The Governor in Council may make regulations
(a) prescribing classes of persons for the purpose of paragraph 28(3)(d); and
(b) generally for carrying out the purposes and provisions of this Part.
7. (1) Paragraph 36(1)(a) of the Act is replaced by the following:
(a) the definition “ship” in Article 1 of the Convention shall be read as including any vessel or craft designed, used or capable of being used solely or partly for navigation, whether seagoing or not, but not including an air cushion vehicle or a vessel propelled manually by paddles or oars; and
(2) Section 36 of the Act is amended by adding the following after subsection (2):
Marginal note:Inconsistency
(3) In the event of any inconsistency between this section and sections 35 and 37 to 40 of this Act and Articles 1 to 22 of the Convention, those sections prevail to the extent of the inconsistency.
8. Paragraph 37(2)(b) of the Act is amended by striking out “and” at the end of subparagraph (i) and by adding the following after subparagraph (ii):
(iii) a person carried on board a ship in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circumstances that neither the master nor the owner could have prevented, and
(iv) a stowaway, a trespasser or any other person who boards a ship without the consent or knowledge of the master or the owner.
9. The Act is amended by adding the following after section 37:
Marginal note:Exception — adventure tourism activities
37.1 (1) This Part does not apply to an adventure tourism activity that meets the following conditions:
(a) it exposes participants to an aquatic environment;
(b) it normally requires safety equipment and procedures beyond those normally used in the carriage of passengers;
(c) participants are exposed to greater risks than passengers are normally exposed to in the carriage of passengers;
(d) its risks have been presented to the participants and they have accepted in writing to be exposed to them; and
(e) any condition prescribed under paragraph 39(c).
Marginal note:Exception — persons
(2) This Part does not apply to the carriage of a sail trainee or a person who is a member of a class of persons prescribed under paragraph 39(d).
10. Sections 39 and 40 of the Act are replaced by the following:
Marginal note:Governor in Council
39. The Governor in Council may make regulations
(a) respecting insurance or other financial security to be maintained in respect of classes of carriage, ships or persons to cover liability under this Part up to the maximum amount set out in it;
(b) respecting the form and manner in which proof of insurance or other financial security is provided;
(c) prescribing any condition for the purpose of subsection 37.1(1);
(d) prescribing classes of persons for the purpose of subsection 37.1(2); and
(e) generally for carrying out the purposes and provisions of this Part.
Marginal note:Amendment of limits
40. The Governor in Council may, by regulation, amend Schedule 2 to implement an amendment that is made in accordance with Article VIII of the Protocol to any of the limits of liability that are specified in paragraph 1 of Article 7 or in Article 8 of the Convention, including the deductibles referred to in that Article 8.
Marginal note:2001, c. 26, ss. 324(4) to (6), c. 27, s. 273.1(2); SOR/2003-353; 2003, c. 22, par. 225(z.6)(E)
11. The heading “Interpretation” before section 47 and sections 47 to 131 of the Act are replaced by the following:
Division 1International Conventions
Interpretation
Marginal note:Definitions
47. (1) The following definitions apply in this Division.
“Bunkers Convention”
« Convention sur les hydrocarbures de soute »
“Bunkers Convention” means the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, concluded at London on March 23, 2001.
“Civil Liability Convention”
« Convention sur la responsabilité civile »
“Civil Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1992, concluded at London on November 27, 1992, Article V of which was amended by the Resolution adopted by the Legal Committee of the International Maritime Organization on October 18, 2000.
“discharge”
« rejet »
“discharge”, in relation to oil and bunker oil, means a discharge of oil or bunker oil that directly or indirectly results in the oil or bunker oil entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.
“Fund Convention”
« Convention sur le Fonds international »
“Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, concluded at London on November 27, 1992, Article 4 of which was amended by the Resolution adopted by the Legal Committee of the International Maritime Organization on October 18, 2000.
“in bulk”
« en vrac »
“in bulk” means in a hold or tank that is part of a ship’s structure, without any intermediate form of containment.
“International Fund”
« Fonds international »
“International Fund” means the International Oil Pollution Compensation Fund, 1992 established by Article 2 of the Fund Convention.
“owner”
Marginal note:Version anglaise seulement
“owner”
(a) in relation to the Civil Liability Convention, has the same meaning as in Article I of that Convention;
(b) in relation to the Fund Convention, has the same meaning as in Article I of the Civil Liability Convention and as shipowner within the meaning of the Fund Convention;
(c) in relation to the Supplementary Fund Protocol, has the same meaning as in Article I of the Civil Liability Convention; and
(d) in relation to the Bunkers Convention, has the same meaning as the definition “Shipowner” in Article 1 of that Convention.
“Supplementary Fund”
« Fonds complémentaire »
“Supplementary Fund” means the International Oil Pollution Compensation Supplementary Fund, 2003 established by Article 2 of the Supplementary Fund Protocol.
“Supplementary Fund Protocol”
« Protocole portant création d’un Fonds complémentaire »
“Supplementary Fund Protocol” means the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, concluded at London on May 16, 2003.
Marginal note:Words and expressions defined
(2) For the purposes of this Division and unless otherwise provided, words and expressions used in this Division have the same meaning as in the following applicable conventions:
(a) Article I of the Civil Liability Convention;
(b) Article 1 of the Fund Convention;
(c) Article 1 of the Supplementary Fund Protocol; and
(d) Article 1 of the Bunkers Convention.
Marginal note:Inconsistency
(3) In the event of an inconsistency between this section and sections 48 to 74 and 79 to 90 and the Civil Liability Convention, the Fund Convention, the Supplementary Fund Protocol or the Bunkers Convention, those sections prevail to the extent of the inconsistency.
Civil Liability Convention
Marginal note:Force of law
48. Articles I to XI, XII bis and 15 of the Civil Liability Convention — that are set out in Schedule 5 — have the force of law in Canada.
Marginal note:Contracting State
49. (1) For the purposes of the application of the Civil Liability Convention, Canada is a Contracting State.
Marginal note:Appropriate authority
(2) For the purposes of the application of Article VII of that Convention, the Minister is the appropriate authority for Canada.
Marginal note:Schedule 5 — limits amendment
50. The Governor in Council may, by regulation, amend Schedule 5 to implement an amendment — to the limits of liability that are specified in paragraph 1 of Article V of the Civil Liability Convention — that is made in accordance with Article 15 of that Convention.
Marginal note:Liability for pollution and related costs
51. The liability of the owner of a ship in relation to preventive measures, for the purposes of the Civil Liability Convention, also includes
(a) the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of section 165 of the Canada Shipping Act, 2001, any other person in Canada or any person in a state, other than Canada, that is a party to that Convention in respect of measures taken to prevent, repair, remedy or minimize pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and
(b) in relation to oil, the costs and expenses incurred by
(i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or
(ii) any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.
Marginal note:Admiralty Court’s jurisdiction — limitation fund
52. (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under the Civil Liability Convention.
Marginal note:Right to assert limitation defence
(2) When a claim is made or apprehended against a person in respect of liability that is limited under the Civil Liability Convention, that person may assert their right to a limitation of liability by constituting a fund as required under that Convention and filing a defence, or by way of action or counterclaim for declaratory relief, in the Admiralty Court.
Marginal note:Stay of proceedings
(3) When a fund is constituted in the Admiralty Court, any other court, where an action asserting limitation of liability under the Civil Liability Convention has been commenced, shall stay the proceedings and refer all claims under that Convention to the Admiralty Court.
Marginal note:Admiralty Court’s powers
53. (1) When a claim is made or apprehended against a person in respect of liability that is limited under the Civil Liability Convention, the Admiralty Court, on application by that person or any other interested person, may take any steps that it considers appropriate, including
(a) determining the amount of the liability and providing for the constitution and distribution of a fund under that Convention; and
(b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within the time limits set out in Article VIII of that Convention, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs.
Marginal note:Admiralty Court may postpone distribution
(2) In providing for the distribution of a fund under paragraph (1)(a) in relation to any liability, the Admiralty Court may, having regard to any claim that may subsequently be established before a court, tribunal or other authority outside Canada in respect of that liability, postpone the distribution of any part of the fund that it considers appropriate.
Marginal note:Procedural matters
(3) The Admiralty Court may
(a) make any rule of procedure that it considers appropriate with respect to proceedings before it under this section; and
(b) determine what form of guarantee it considers to be adequate for the purposes of paragraph 3 of Article V of the Civil Liability Convention.
Marginal note:Public notice
54. (1) The person constituting the fund shall, as soon as feasible, give notice of the fund’s constitution in the Canada Gazette and in a newspaper in general circulation in the region where the incident occurs.
Marginal note:Proof of notice
(2) Within 30 days after the fund’s constitution, the person constituting it shall file the public notices in the Admiralty Court.
Marginal note:Court order in case of non-compliance
(3) The Admiralty Court may issue any order that it deems appropriate to remedy the failure of the person to give any of the required public notices or the inadequacy of a notice.
Marginal note:Absence of certificate
55. (1) Unless a ship carries a certificate described in Article VII of the Civil Liability Convention issued in accordance with subsection 56(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of a ship carrying, in bulk as cargo, more than 2 000 metric tons of oil, the ship must not
(a) enter or leave a port in Canadian waters or in Canada’s exclusive economic zone or arrive at or leave an offshore terminal in Canadian waters or in Canada’s exclusive economic zone; or
(b) if the ship is registered in Canada, enter or leave a port in any other state, whether or not the state is a party to that Convention, or arrive at or leave an offshore terminal
(i) in the territorial sea or internal waters of any such state, or
(ii) in the exclusive economic zone of any such state or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of the state, and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.
Marginal note:Certificate to be produced on request
(2) The master, a crew member or any person on board who is, or appears to be, in charge of the ship shall produce the certificate and give details of it at the request of any authorized officer of the Government of Canada.
Marginal note:By whom certificate to be issued
56. (1) The certificate shall be issued
(a) by the Minister, if the ship is registered in Canada;
(b) by or under the authority of the government of the state of registration, if the ship is registered in a state, other than Canada, that is a party to the Civil Liability Convention; or
(c) by the Minister or by or under the authority of the government of a state, other than Canada, that is a party to the Civil Liability Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.
Marginal note:Issuance of certificate by Minister
(2) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Civil Liability Convention, the Minister shall issue the certificate to the owner of the ship, if he or she is satisfied that a contract of insurance or other security satisfying the requirements of Article VII of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.
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 55(1), or that the contract of insurance or other security will not cover the owner’s liability under the Civil Liability Convention, the Minister may refuse to issue the certificate.
Marginal note:When Minister may revoke certificate
(4) If the Minister believes that the guarantor is no longer able to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 55(1), or that the contract of insurance or other security no longer covers the owner’s liability under the Civil Liability Convention, the Minister may revoke the certificate issued by him or her.
Fund Convention
Marginal note:Force of law
57. Articles 1 to 4, 6 to 10, 12 to 15, 36 ter, 29, 33 and 37 of the Fund Convention — that are set out in Schedule 6 — have the force of law in Canada.
Marginal note:Contracting State
58. For the purposes of the application of the Fund Convention, Canada is a Contracting State.
Marginal note:Schedule 6 — limits amendment
59. The Governor in Council may, by regulation, amend Schedule 6 to implement an amendment — to the limits of liability that are specified in paragraph 4 of Article 4 of the Fund Convention — that is made in accordance with Article 33 of that Convention.
Meaning of “associated persons”
60. For the purposes of the application of the Fund Convention, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be “associated persons” within the meaning of “Associated person” in paragraph 2(b) of Article 10 of that Convention.
Marginal note:Legal capacity of International Fund
61. For the purposes of the rights and obligations referred to in section 62, the International Fund has the capacity, rights and obligations of a natural person, and the Director of the International Fund is its legal representative.
Marginal note:International Fund to be party to legal proceedings
62. (1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51 or Article III of the Civil Liability Convention,
(a) the document commencing the proceedings shall be served on the International Fund and that Fund is then a party to the proceedings; and
(b) the International Fund may appear and take any action that its Director considers appropriate for the proper administration of that Fund.
Marginal note:Method of service on International Fund
(2) In addition to any method of service permitted by the rules of the court in which a proceeding is commenced, service of documents on the International Fund under paragraph (1)(a) may be effected by registered mail.
Supplementary Fund Protocol
Marginal note:Force of law
63. Articles 1 to 15, 18, 20, 24, 25 and 29 of the Supplementary Fund Protocol — that are set out in Schedule 7 — have the force of law in Canada.
Marginal note:Contracting State
64. For the purposes of the application of the Supplementary Fund Protocol, Canada is a Contracting State.
Marginal note:Schedule 7 — limits amendment
65. The Governor in Council may, by regulation, amend Schedule 7 to implement an amendment — to the limits of liability that are in Article 4 of the Supplementary Fund Protocol — that is made in accordance with Article 24 of that Protocol.
Meaning of “associated persons”
66. For the purposes of the application of the Supplementary Fund Protocol, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be “associated persons” within the meaning of “Associated person” in paragraph 2(b) of Article 10 of the Fund Convention.
Marginal note:Legal capacity of Supplementary Fund
67. For the purposes of the rights and obligations referred to in section 68, the Supplementary Fund has the capacity, rights and obligations of a natural person, and the Director of the Supplementary Fund is its legal representative.
Marginal note:Supplementary Fund to be party to legal proceedings
68. (1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51 or Article III of the Civil Liability Convention,
(a) the document commencing the proceedings shall be served on the Supplementary Fund and that Fund is then a party to the proceedings; and
(b) the Supplementary Fund may appear and take any action that its Director considers appropriate for the proper administration of that Fund.
Marginal note:Method of service on Supplementary Fund
(2) In addition to any method of service permitted by the rules of the court in which proceedings are commenced, service of documents on the Supplementary Fund under paragraph (1)(a) may be effected by registered mail.
Bunkers Convention
Marginal note:Force of law
69. Articles 1 to 10 of the Bunkers Convention — that are set out in Schedule 8 — have the force of law in Canada.
Marginal note:State Party
70. (1) For the purposes of the application of the Bunkers Convention, Canada is a State Party.
Marginal note:Appropriate authority
(2) For the purposes of the application of Article 7 of the Bunkers Convention, the Minister is the appropriate authority for Canada.
Marginal note:Liability for pollution and related costs
71. The liability of the owner of a ship in relation to preventive measures, for the purposes of the Bunkers Convention, also includes
(a) the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of section 165 of the Canada Shipping Act, 2001, any other person in Canada or any person in a state, other than Canada, that is a party to that Convention in respect of measures taken to prevent, repair, remedy or minimize pollution damage from the ship, including measures taken in anticipation of a discharge of bunker oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and
(b) in relation to bunker oil, the costs and expenses incurred by
(i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or
(ii) any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.
Marginal note:Application of Part 3
72. Part 3 applies to claims arising under the Bunkers Convention.
Marginal note:Absence of certificate
73. (1) Unless a ship carries a certificate described in Article 7 of the Bunkers Convention issued in accordance with subsection 74(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of a ship having 1 000 gross tonnage or more, the ship must not
(a) enter or leave a port in Canadian waters or in Canada’s exclusive economic zone or arrive at or leave an offshore terminal in Canadian waters or in Canada’s exclusive economic zone; or
(b) if the ship is registered in Canada, enter or leave a port in any other state, whether or not the state is a party to that Convention, or arrive at or leave an offshore terminal
(i) in the territorial sea or internal waters of any such state, or
(ii) in the exclusive economic zone of any such state or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of the state, and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.
Marginal note:Certificate to be produced on request
(2) The master, a crew member or any person on board who is, or appears to be, in charge of the ship shall produce the certificate and give details of it at the request of any authorized officer of the Government of Canada.
Marginal note:By whom certificate to be issued
74. (1) The certificate shall be issued
(a) by the Minister, if the ship is registered in Canada;
(b) by or under the authority of the government of the state of registration, if the ship is registered in a state, other than Canada, that is a party to the Bunkers Convention; or
(c) by the Minister or by or under the authority of the government of a state, other than Canada, that is a party to the Bunkers Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.
Marginal note:Designation by Minister
(2) The Minister may designate a person to issue, refuse or revoke a certificate on the Minister’s behalf.
Marginal note:Issuance of certificate by Minister
(3) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Bunkers Convention, the Minister shall issue the certificate to the owner of the ship, if he or she is satisfied that a contract of insurance or other security satisfying the requirements of Article 7 of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.
Marginal note:When Minister may refuse certificate
(4) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 73(1), or that the contract of insurance or other security will not cover the owner’s liability under the Bunkers Convention, the Minister may refuse to issue the certificate.
Marginal note:When Minister may revoke certificate
(5) If the Minister believes that the guarantor is no longer able to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 73(1), or that the contract of insurance or other security no longer covers the owner’s liability under the Bunkers Convention, the Minister may revoke the certificate issued by him or her.
Division 2Liability Not Covered by Division 1
Interpretation
Marginal note:Definitions
75. The following definitions apply in this Division.
“discharge”
« rejet »
“discharge”, in relation to a pollutant, means a discharge of a pollutant that directly or indirectly results in the pollutant entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.
“oil”
« hydrocarbures »
“oil” means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.
“oil pollution damage”
« 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 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 oil and any substance or class of substances identified by the regulations as a pollutant for the purposes of this Part and includes
(a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the waters’ quality to an extent that their use would be detrimental to humans or animals or plants that are useful to humans; and
(b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the waters’ quality to an extent that their use would be detrimental to humans or animals or plants that are useful to humans.
“pollution damage”
« 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 its method of propulsion or lack of propulsion, and includes
(a) a ship in the process of construction from the time that it is capable of floating; and
(b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up.
Application
Marginal note:Geographical application
76. This Division applies in respect of actual or anticipated pollution damage, except for pollution damage covered by Division 1, irrespective of the location of the actual or anticipated discharge of the pollutant and irrespective of the location where any preventive measures are taken,
(a) on Canada’s territory or in Canadian waters; or
(b) in Canada’s exclusive economic zone.
Marginal note:Liability for pollution and related costs
77. (1) The owner of a ship is liable
(a) for oil pollution damage from the ship;
(b) for the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of section 165 of the Canada Shipping Act, 2001 or any other person in Canada in respect of measures taken to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and
(c) for the costs and expenses incurred by
(i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or
(ii) any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001 to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.
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 undertaken or to be undertaken.
Marginal note:Strict liability subject to certain defences
(3) The owner’s liability under subsections (1) and (2) does not depend on proof of fault or negligence, but the owner is not liable under those subsections if they establish that the occurrence
(a) resulted from an act of war, hostilities, civil war or insurrection or from a natural phenomenon of an exceptional, inevitable and irresistible character;
(b) was wholly caused by an act or omission of a third party with intent to cause damage; or
(c) was wholly caused by the negligence or other wrongful act of any government or other authority that is responsible for the maintenance of lights or other navigational aids, in the exercise of that function.
Marginal note:Owner’s rights against third parties
(4) Nothing in this Division shall be construed as limiting or restricting any right of recourse that the owner of a ship who is liable under subsection (1) may have against another person.
Marginal note:Owner’s own claim for costs and expenses
(5) The costs and expenses incurred by the owner of a ship in respect of measures voluntarily taken by them to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, rank equally with other claims against any security given by that owner in respect of their liability under this section.
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 occurs, within the earlier of
(i) three years after the day on which the pollution damage occurs, and
(ii) six years after the occurrence that causes the pollution damage or, if the pollution damage is caused by more than one occurrence having the same origin, six years after the first of the occurrences; or
(b) if no pollution damage occurs, within six years after the occurrence.
Marginal note:Application of Part 3
78. Part 3 applies to any claim referred to in section 77.
Division 3General Provisions
Admiralty Court
Marginal note:Jurisdiction
79. (1) The Admiralty Court has jurisdiction with respect to claims for compensation brought in Canada under any convention under Division 1 and claims for compensation under Division 2.
Marginal note:Jurisdiction may be exercised in rem
(2) The jurisdiction conferred on the Admiralty Court may be exercised in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court.
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 arises or the action is commenced, the ship is being used exclusively for non-commercial governmental purposes.
Registration of Foreign Judgments
Marginal note:Definitions
80. The following definitions apply in this section and in sections 81 to 89.
“foreign judgment”
« jugement étranger »
“foreign judgment” means a judgment — of a court of a state, other than Canada, that is a party to one of the following conventions or the protocol — rendered under the
(a) Civil Liability Convention within the meaning of subsection 47(1);
(b) Fund Convention within the meaning of subsection 47(1);
(c) Supplementary Fund Protocol within the meaning of subsection 47(1);
(d) Bunkers Convention within the meaning of subsection 47(1).
“judgment creditor”
« bénéficiaire »
“judgment creditor” means a person in whose favour a foreign judgment is rendered, and includes the person’s assigns, successors, heirs, executors, liquidators of the succession, administrators and legal representatives.
“judgment debtor”
« débiteur »
“judgment debtor” means a person against whom a foreign judgment is rendered, and includes a person against whom the foreign judgment is enforceable under the law of the state in which it is rendered.
Marginal note:Application
81. Sections 82 to 89 apply to a foreign judgment resulting from an occurrence that takes place after the convention or protocol under which the judgment is rendered comes into force in Canada.
Marginal note:Registration of foreign judgment
82. (1) If a foreign judgment is rendered, the judgment creditor may, at any time during which it is enforceable under the law of the state in which it is rendered, apply to the Admiralty Court in accordance with its rules to have the foreign judgment registered in that Court.
Marginal note:Court may register foreign judgment
(2) The Admiralty Court may, subject to subsections (3) and (4) and section 85, order the registration of the foreign judgment if it is satisfied
(a) that a case for registration has been made; and
(b) that the foreign judgment is not under appeal and is no longer subject to appeal under the law of the state in which it was rendered.
Marginal note:If judgment debtor appears
(3) If, in accordance with the Admiralty Court’s rules, the judgment debtor appears at the hearing of the application for registration, that Court may not order the registration of the foreign judgment if it is satisfied that
(a) the foreign judgment has been fully satisfied;
(b) the foreign court acted without jurisdiction;
(c) the foreign judgment was obtained by fraud; or
(d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case.
Marginal note:If judgment partly satisfied
(4) If the Admiralty Court is satisfied that the foreign judgment has been partly satisfied, it shall order the foreign judgment to be registered only in respect of the balance remaining payable.
Marginal note:Pre-registration interest
83. For the purpose of section 82, a foreign judgment includes any interest, up to the date of registration, that has accrued on it under the law of the state in which it was rendered.
Marginal note:Costs
84. Reasonable costs incurred by the judgment creditor related to the registration of the foreign judgment, including the cost of obtaining an exemplification or certified copy of it from the foreign court, are recoverable in the same manner as if they were amounts payable under the foreign judgment, and the costs are to be taxed by an Admiralty Court’s assessment officer and the assessment endorsed on the order for registration.
Marginal note:Conversion to Canadian currency
85. (1) A foreign judgment expressed in a currency other than Canadian currency may not be registered under section 82 until the Admiralty Court determines the equivalent amount in Canadian currency on the basis of the rate of exchange prevailing on the day on which the foreign judgment is rendered, as that rate is ascertained from any bank in Canada, and, for the purpose of making that determination, that Court may require the judgment creditor to provide any evidence of the applicable rate of exchange that that Court considers necessary.
Marginal note:Registered judgment to be in Canadian currency
(2) When the equivalent amount in Canadian currency is determined, the Admiralty Court shall certify on the order for registration the amount so determined, and the foreign judgment, when registered, is deemed to be a judgment for payment of the amount so certified.
Marginal note:Effect of registration
86. Subject to section 87, a foreign judgment registered under section 82 has, as of the date of registration, the same force and effect as a judgment of the Admiralty Court’s rendered on that date.
Marginal note:Service of notice of registration
87. If a foreign judgment is registered under section 82 after an ex parte hearing, execution of the registered judgment may not issue until the expiry of 30 days after the day on which the judgment debtor is served with a notice of registration of the foreign judgment in the manner set out in the Admiralty Court’s rules for the service of originating documents.
Marginal note:Application to set aside registration
88. (1) At any time after a foreign judgment is registered under section 82, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the registration of the judgment set aside on any of the grounds set out in subsection (2).
Marginal note:Grounds for setting aside registration
(2) The Admiralty Court shall set aside the registration of the foreign judgment if it is satisfied that
(a) the foreign judgment has been fully or partly satisfied;
(b) the foreign court acted without jurisdiction;
(c) the foreign judgment was obtained by fraud;
(d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case;
(e) the registration of the foreign judgment was obtained by fraud;
(f) an error was made in the conversion of the foreign judgment to Canadian currency under section 85;
(g) the registered judgment included interest on the foreign judgment to which the judgment creditor was not entitled; or
(h) for any other reason, it erred in regis-tering the foreign judgment.
Marginal note:Reduction of registered amount
(3) If the Admiralty Court sets aside the registration of a foreign judgment on the ground that it has been partly satisfied, or on the ground referred to in paragraph (2)(f) or (g), it shall order the foreign judgment to be registered in the reduced amount.
Marginal note:Application for stay of execution
89. (1) At any time after a foreign judgment is registered under section 82, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the execution of the registered judgment stayed on the grounds that an application to set aside the registration has been made under subsection 88(1), and, if that Court is satisfied that the application has been made, it may stay the execution of the judgment either absolutely or for the period and on the terms and conditions that it considers appropriate and may, on further evidence, vary or terminate a stay of execution.
Marginal note:Grounds exclusive
(2) Execution of a registered judgment may only be stayed on the grounds that an application to set aside the registration has been made under subsection 88(1).
Regulations
Marginal note:Governor in Council
90. The Governor in Council may make regulations
(a) imposing a fee for the issuance of a certificate under section 56 or 74;
(b) respecting conditions under which certif-icates may be issued, refused or revoked for the purposes of subsections 56(2) to (4);
(c) respecting the form and content of the notice to be given under subsection 54(1);
(d) extending the application of the Bunkers Convention, within the meaning of subsection 47(1), to ships or classes of ships excluded from the application of that Convention and specifying the terms and conditions that are applicable to those ships or classes of ships under Article 4 of that Convention;
(e) providing that Article 7 of the Bunkers Convention, within the meaning of subsection 47(1), does not apply to ships or classes of ships operating exclusively within the area referred to in Article 2(a)(i) of that Convention;
(f) governing the performance of the functions of a person designated under subsection 74(2);
(g) respecting conditions under which certif-icates may be issued, refused or revoked for the purposes of subsections 74(3) to (5); and
(h) generally for carrying out the purposes and provisions of this Part.
PART 7 SHIP-SOURCE OIL POLLUTION FUND
Interpretation
Marginal note:Definitions
91. (1) The following definitions apply in this Part.
“discharge”
« rejet »
“discharge”, in relation to oil, means a discharge of oil that directly or indirectly results in the oil entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.
“in bulk”
« en vrac »
“in bulk” means in a hold or tank that is part of a ship’s structure, without any intermediate form of containment.
“oil”
« hydrocarbures »
“oil” means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.
“oil pollution damage”
« dommages dus à la pollution par les hydrocarbures »
“oil pollution damage”, in relation to a ship, means loss or damage outside the ship caused by contamination resulting from the discharge of oil from the ship.
“owner”
« propriétaire »
“owner”
(a) in relation to a ship subject to the Civil Liability Convention, has the same meaning as in Article I of that Convention;
(b) in relation to a ship subject to the Bunkers Convention, has the same meaning as the definition “Shipowner” in Article 1 of that Convention; and
(c) in relation to any other ship, means the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use.
“ship”
« navire »
“ship” means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to its method of propulsion or lack of propulsion, and includes
(a) a ship in the process of construction from the time that it is capable of floating; and
(b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up.
“Ship-source Oil Pollution Fund”
« Caisse d’indemnisation »
“Ship-source Oil Pollution Fund” means the Ship-source Oil Pollution Fund continued by section 92.
Marginal note:Other definitions
(2) In this Part, “Bunkers Convention”, “Civil Liability Convention”, “Fund Convention”, “International Fund”, “Supplementary Fund” and “Supplementary Fund Protocol” have the same meaning as in subsection 47(1).
Ship-source Oil Pollution Fund
Marginal note:Ship-source Oil Pollution Fund continued
92. (1) The account known as the Ship-source Oil Pollution Fund in the accounts of Canada is continued.
Marginal note:Credits
(2) The following shall be credited to the Ship-source Oil Pollution Fund:
(a) all payments received under sections 112 and 115;
(b) interest computed in accordance with section 93; and
(c) any amounts recovered by the Administrator under paragraph 106(3)(c).
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 paragraph 106(3)(a) or 108(1)(a), subsection 108(6) or section 117 or under a settlement;
(b) all amounts for which the Administrator is liable under subsection 117(3);
(c) all interest to be paid under section 116;
(d) all costs and expenses that are directed to be paid under section 98;
(e) the remuneration and expenses of assessors that are directed to be paid under subsection 108(2); and
(f) the amount of any judgment and any costs awarded against that Fund in litigation.
Marginal note:Interest to be credited to Fund
93. The Minister of Finance shall, at the times that the Governor in Council directs, credit to the Ship-source Oil Pollution Fund interest at a rate fixed by the Governor in Council on the balance from time to time of that Fund.
Administrator and Deputy Administrator
Marginal note:Appointment of Administrator
94. (1) The Governor in Council may appoint an Administrator of the Ship-source Oil Pollution Fund to hold office during good behaviour for a term, not exceeding five years, that is fixed by the Governor in Council, subject to removal by the Governor in Council for cause.
Marginal note:Reappointment of Administrator
(2) The Administrator is eligible for reappointment on the expiry of his or her term of office.
Marginal note:Continuation in office
(3) If an Administrator is not appointed to take office on the expiry of the incumbent Administrator’s term, the incumbent continues to hold office until the earlier of the date fixed by the Governor in Council and the day on which a successor is appointed.
Marginal note:Deputy Administrator
95. (1) The Governor in Council may appoint a Deputy Administrator of the Ship-source Oil Pollution Fund to hold office during good behaviour for a term, not exceeding five years, that is fixed by the Governor in Council, subject to removal by the Governor in Council for cause.
Marginal note:Reappointment of Deputy Administrator
(2) The Deputy Administrator is eligible for reappointment on the expiry of his or her term of office.
Marginal note:Resignation
96. The resignation of an Administrator or Deputy Administrator becomes effective at the time that the Minister receives a written resignation from him or her or at the time specified in the resignation, whichever is later.
Marginal note:Independent of Crown
97. (1) The Administrator or Deputy Administrator shall not, while holding office, accept or hold any office or employment inconsistent with his or her duties and functions under this Part.
Marginal note:Effect of contravention of subsection (1)
(2) If the Administrator or Deputy Administrator contravenes subsection (1), his or her appointment is terminated on a date fixed by the Governor in Council that is not later than 30 days after notice of the contravention is received by the Minister, but the contravention does not affect the validity of any act performed by the Administrator or Deputy Administrator, as the case may be, on behalf of the Ship-source Oil Pollution Fund between the date of the contravention and the date that the appointment is terminated.
Marginal note:Costs, expenses and fees
98. (1) On the direction of the Minister of Finance, all costs and expenses incurred by the Administrator and the Deputy Administrator in performing their duties and functions under this Part, and any fees for services rendered by the Administrator or Deputy Administrator calculated in accordance with a tariff prescribed by the regulations, shall be paid out of the Consolidated Revenue Fund and charged to the Ship-source Oil Pollution Fund.
Marginal note:Taxation
(2) The Admiralty Court’s assessment officers may, at the request of the Minister of Justice, tax any account for costs, expenses or fees submitted by the Administrator or Deputy Administrator to the Minister of Finance as if the Administrator or Deputy Administrator were acting for the Crown in proceedings in that Court, but, on any such taxation, no fee may be allowed in excess of that set out in the tariff referred to in subsection (1).
Marginal note:Deputy Administrator’s duties and functions
99. (1) The Deputy Administrator shall perform the duties and functions consistent with this Part that are assigned to him or her by the Administrator.
Marginal note:Administrator’s absence or incapacity
(2) If the Administrator is absent or incapac-itated or the office of Administrator is vacant, the Deputy Administrator has all the powers and duties of the Administrator.
Marginal note:Professional and technical assistance
100. The Administrator may, for the purpose of fulfilling his or her functions, including performing his or her duties under this Part, obtain the professional, technical and other advice and assistance that he or she considers necessary.
Liability of Ship-source Oil Pollution Fund
Marginal note:Liability of Ship-source Oil Pollution Fund
101. (1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the matters referred to in sections 51, 71 and 77 in relation to oil, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention, if
(a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship or, in the case of a ship within the meaning of Article I of the Civil Liability Convention, from the International Fund and the Supplementary Fund, and those steps have been unsuccessful;
(b) the owner of a ship is not liable by reason of any of the defences described in subsection 77(3), Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention and neither the International Fund nor the Supplementary Fund are liable;
(c) the claim exceeds
(i) in the case of a ship within the meaning of Article I of the Civil Liability Convention, the owner’s maximum liability under that Convention to the extent that the excess is not recoverable from the International Fund or the Supplementary Fund, and
(ii) in the case of any other ship, the owner’s maximum liability under Part 3;
(d) the owner is financially incapable of meeting their obligations under section 51 and Article III of the Civil Liability Convention, to the extent that the obligation is not recoverable from the International Fund or the Supplementary Fund;
(e) the owner is financially incapable of meeting their obligations under section 71 and Article 3 of the Bunkers Convention;
(f) the owner is financially incapable of meeting their obligations under section 77;
(g) the cause of the oil pollution damage is unknown and the Administrator has been unable to establish that the occurrence that gave rise to the damage was not caused by a ship; or
(h) the Administrator is a party to a settlement under section 109.
Marginal note:Exception — drilling activities
(2) This Part does not apply to a drilling ship that is on location and engaged in the exploration or exploitation of the seabed or its subsoil in so far as an escape or discharge of oil emanates from those activities.
Marginal note:Exception — floating storage units
(3) This Part does not apply to a floating storage unit or floating production, storage and offloading unit unless it is carrying oil as a cargo on a voyage to or from a port or terminal outside an offshore oil field.
Marginal note:Action by Administrator
102. (1) If there is an occurrence that gives rise to the liability of an owner of a ship under section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention,
(a) the Administrator may, either before or after receiving a claim under section 103, commence an action in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court; and
(b) subject to subsection (3), the Administrator is entitled in any such action to claim security in an amount not less than the owner’s maximum aggregate liability determined in accordance with section 71 or 77, or Article V of the Civil Liability Convention.
Marginal note:Subrogation
(2) The Administrator may continue the action only if he or she has become subrogated to the rights of the claimant under paragraph 106(3)(c).
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 ship within the meaning of Article I of the Civil Liability Convention, a fund has been constituted under subsection 52(2); and
(b) in the case of any other ship, a fund has been constituted under Article 11 of the Convention as defined in section 24.
Marginal note:Claims filed with Administrator
103. (1) In addition to any right against the Ship-source Oil Pollution Fund under section 101, a person who has suffered loss or damage or incurred costs or expenses referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention in respect of actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.
Marginal note:Limitation period
(2) Unless the Admiralty Court fixes a shorter period under paragraph 111(a), a claim must be made
(a) within two years after the day on which the oil pollution damage occurs and five years after the occurrence that causes that damage; or
(b) if no oil pollution damage occurs, within five years after the occurrence in respect of which oil pollution damage is anticipated.
Marginal note:Exception
(3) Subsection (1) does not apply to a response organization referred to in paragraph 51(a), 71(a) or 77(1)(b) or a person in a state other than Canada.
Marginal note:Liability — exception
104. Sections 101 and 103 do not apply in respect of actual or anticipated oil pollution damage
(a) on the territory or in the territorial sea or internal waters of a state, other than Canada, that is a party to the Civil Liability Convention or the Bunkers Convention; or
(b) in the exclusive economic zone of a state referred to in paragraph (a) or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of that state and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.
Marginal note:Administrator’s duties
105. (1) On receipt of a claim under section 103, the Administrator shall
(a) investigate and assess it; and
(b) make an offer of compensation to the claimant for whatever portion of it that the Administrator finds to be established.
Marginal note:Administrator’s powers
(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) When investigating and assessing a claim, the Administrator may consider only
(a) whether it is for loss, damage, costs or expenses referred to in subsection 103(1); and
(b) whether it resulted wholly or partially from
(i) an act done or omitted to be done by the claimant with intent to cause damage, or
(ii) the claimant’s negligence.
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 he or she is 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 he or she would have otherwise assessed in proportion to the degree to which he or she is satisfied that the claim resulted from
(a) an act done or omitted to be done by the claimant with intent to cause damage; or
(b) the claimant’s negligence.
Marginal note:Offer of compensation
106. (1) If the Administrator makes an offer of compensation to a claimant under paragraph 105(1)(b), the claimant shall, within 60 days after receiving the offer, notify the Administrator whether they accept or refuse it and, if no notification is received by the Administrator at the end of that period, the claimant is deemed to have refused the offer.
Marginal note:Appeal to Admiralty Court
(2) A claimant may, within 60 days after receiving an offer of compensation or a notification that the Administrator has disallowed the claim, appeal the adequacy of the offer or the disallowance of the claim to the Admiralty Court, but in an appeal from the disallowance of a claim, that Court may consider only the matters described in paragraphs 105(3)(a) and (b).
Marginal note:Acceptance of offer by claimant
(3) If a claimant accepts the offer of compensation from the Administrator,
(a) the Administrator shall without delay direct payment to be made to the claimant of the amount of the offer out of the Ship-source Oil Pollution Fund;
(b) the claimant is then precluded from pursuing any rights that they may have had against any person in respect of matters referred to in sections 51, 71 and 77, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in relation to the occurrence to which the offer of compensation relates;
(c) the Administrator is, to the extent of the payment to the claimant, subrogated to any rights of the claimant referred to in paragraph (b); and
(d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund, the Supplementary Fund or any other person liable and, for that purpose, the Administrator may commence an action in the Administrator’s or the claimant’s name, including a claim against the fund of the owner of a ship established under the Civil Liability Convention and may enforce any security provided to or enforceable by the claimant.
Claims for Loss of Income
Marginal note:Meaning of terms
107. (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 a person engaged exclusively in supervisory or managerial functions, except in the case of a family-type co-operative operation that has a total annual throughput of less than 1 400 metric tons or an annual average number of employees of fewer than 50.
Marginal note:Filing of claim with Administrator
(3) Subject to this section, a claimant who suffers or will suffer a loss of income, or in the case of an individual described in paragraph (2)(d), a loss of a source of food or animal skins, resulting from a discharge of oil from a ship that is not recoverable under Part 6 may file a claim with the Administrator for that loss or future loss
(a) within three years after the day on which the discharge of the oil occurs or first occurred, as the case may be, or could reasonably be expected to have become known to the claimant; and
(b) within six years after the occurrence that causes the discharge.
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 within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, in the case of an individual, or
(ii) are incorporated by or under the laws of Canada or a province, in the case of a corporation.
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 he or she is satisfied on the evidence that the occurrence was not caused by a ship.
Marginal note:Period for filing claim may be shortened
(6) The Admiralty Court may, by an order made under paragraph 111(a), shorten the period referred to in subsection (3) for filing a claim under that subsection.
Marginal note:Administrator’s responsibility
108. (1) On receipt of a claim filed under section 107, the Administrator shall
(a) if he or she considers the action appropriate for the proper administration of the Ship-source Oil Pollution Fund, direct payment to be made to the claimant of the amount of the loss alleged in the claim or otherwise agreed on between the Administrator and the claimant; or
(b) in any other case, transmit the claim to the Minister.
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 107, an assessor or assessors, in this section referred to as “the assessor”,
(a) after giving reasonable notice to the Administrator and the claimant, shall meet with the Administrator and the claimant or their representatives;
(b) may receive and consider any written or oral evidence submitted to the assessor by or on behalf of the Administrator or the claimant, whether or not the evidence would be admissible before a court; and
(c) has all the powers of a commissioner under Part I of the Inquiries Act.
Marginal note:Report to Minister
(4) The assessor shall, within 60 days after their appointment or within any longer period that is agreed to by the Minister, report to the Minister whether, in their opinion, the following requirements have been met:
(a) the loss alleged by the claimant has been established;
(b) the loss resulted from the discharge of oil from a ship; and
(c) the loss is not recoverable otherwise than under this Part.
Marginal note:Amount of loss
(5) If the assessor reports that the requirements of subsection (4) have been met, the report must set out the amount of the loss as assessed by them.
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 be made to the claimant out of the Ship-source Oil Pollution Fund of an amount equal to the amount, if any, of the assessed loss set out in the report.
Proceedings Against the Owner of a Ship
Marginal note:Proceedings against owner of ship
109. (1) If a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention, except in the case of proceedings based on paragraph 77(1)(c) commenced by the Minister of Fisheries and Oceans in respect of a pollutant other than oil,
(a) the document commencing the proceedings shall be served on the Administrator by delivering a copy of it personally to him or her, or by leaving a copy at his or her last known address, and the Administrator is then a party to the proceedings; and
(b) the Administrator shall appear and take any action, including being a party to a settlement either before or after judgment, that he or she considers appropriate for the proper administration of the Ship-source Oil Pollution Fund.
Marginal note:If Administrator party to settlement
(2) If the Administrator is a party to a settlement under paragraph (1)(b), he or she shall direct payment to be made to the claimant of the amount that the Administrator has agreed to pay under the settlement.
Limit of Liability of Ship-source Oil Pollution Fund
Marginal note:Limit of liability in first year
110. (1) The maximum aggregate liability of the Ship-source Oil Pollution Fund under sections 101, 103 and 107 and under any settlement, in respect of any particular occurrence, is
(a) $100,000,000 if the occurrence took place in the year ending March 31, 1990; or
(b) an amount calculated in accordance with subsection (2), if the occurrence takes place in any following year.
Marginal note:Annual adjustment of limit of liability
(2) The $100,000,000 limit of liability shall be adjusted annually so that the limit of liability arising out of any given occurrence that takes place in any following year is an amount equal to the product obtained by multiplying
(a) the limit of liability that would have been applicable for that following year if no adjustment had been made under this section with respect to that following year
by
(b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period.
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.
Marginal note:Applying to Admiralty Court for directions
111. If the Admiralty Court, on the application of the Administrator and on notice to other interested parties that that Court considers just in the circumstances, is satisfied that, in respect of a particular occurrence, the aggregate liability of the Ship-source Oil Pollution Fund under sections 101, 103 and 107 and subsection 109(2) may exceed its limit of liability under section 110, that Court may
(a) order the exclusion of any claimants who do not file their claims with the Administrator within the period that that Court directs; and
(b) order that payment out of the Ship-source Oil Pollution Fund of established claims be prorated or postponed, or any combination of prorating and postponement.
Levies To Be Paid to the Ship-source Oil Pollution Fund, the International Fund and the Supplementary Fund
Definition of “oil”
112. (1) In this section and sections 115 and 118, “oil” means “Contributing Oil” as defined in paragraph 3 of Article 1 of the Fund Convention if a levy is to be paid under that Convention or as defined in paragraph 7 of Article 1 of the Supplementary Fund Protocol if a levy is to be paid under that Protocol.
Marginal note:Levy on shipments of oil in bulk
(2) If a levy determined in accordance with section 113 is imposed or re-imposed by the Minister under subsection 114(1), it shall be paid to the Receiver General
(a) in respect of each metric ton of oil in excess of 300 metric tons imported by ship into Canada in bulk as cargo; and
(b) in respect of each metric ton of oil in excess of 300 metric tons shipped from a place in Canada in bulk as cargo of a ship.
Marginal note:When payable
(3) The amounts payable under subsection (2) shall be paid, or security for payment of those amounts in an amount and form that is satisfactory to the Minister shall be given,
(a) in the case of oil imported by ship into Canada in bulk as cargo, before the oil is unloaded from the ship; and
(b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, before the ship leaves the facility where the oil is loaded on board the ship.
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 are recoverable in any court of competent jurisdiction from
(a) in the case of oil imported by ship into Canada in bulk as cargo, the owner, consignee or shipper of the oil; and
(b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, the owner, consignor or shipper of the oil.
Marginal note:Amount of levy in first year
113. (1) The levy referred to in subsection 112(2) is 30 cents in the year ending on March 31, 1990.
Marginal note:Annual adjustment of levy
(2) The levy referred to in subsection (1) shall be adjusted annually so that the levy in any following year is an amount equal to the product obtained by multiplying
(a) the levy that would have been payable in that following year if no adjustment had been made under this section with respect to that following year
by
(b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period.
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 subsection 112(2), adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the levy so published is admissible in any proceeding under this Part as conclusive proof of the levy for the year in question.
Marginal note:Discontinuation or re-imposition of levy
114. (1) The Minister, after consultation with the Minister of Fisheries and Oceans and the Minister of the Environment, may, by order, impose, discontinue or re-impose the levy referred to in subsection 112(2).
Marginal note:Annual adjustment of levy unaffected
(2) The discontinuation of the levy under subsection (1) does not affect the operation of section 113.
Marginal note:Interest on unpaid amounts
115. If any portion of a levy is not paid as required by subsection 112(3), interest may be charged on the amount from time to time outstanding, at a rate fixed by the Governor in Council on the recommendation of the Minister of Finance, calculated from the time when the oil is unloaded from the ship or when the ship on which the oil is loaded leaves the facility at which it is loaded, as the case may be.
Marginal note:Claimants entitled to interest
116. (1) Interest accrues on a claim under this Part against an owner of a ship, the owner’s guarantor, the Ship-source Oil Pollution Fund, the International Fund or the Supplementary Fund at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act as are in effect from time to time.
Marginal note:Time from which interest accrues
(2) Interest accrues on a claim under this Part
(a) if the claim is based on paragraph 77(1)(a) or on Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention, from the day on which the oil pollution damage occurs;
(b) if the claim is based on section 51 or 71 or paragraph 77(1)(b) or (c), or on Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention as they pertain to preventive measures,
(i) in the case of costs and expenses, from the day on which they are incurred, or
(ii) in the case of loss or damage, from the day on which the loss or damage occurs; or
(c) if the claim is based on section 107, from the time when the loss of income occurs.
Marginal note:Payments by Canada to International Fund and Supplementary Fund
117. (1) The Administrator shall direct payments to be made out of the Ship-source Oil Pollution Fund to the International Fund in accordance with Articles 10 and 12 of the Fund Convention and to the Supplementary Fund in accordance with Articles 10 and 12 of the Supplementary Fund Protocol.
Marginal note:Communication of information
(2) The Administrator shall communicate to the Minister and
(a) the Director of the International Fund, the information referred to in Article 15 of the Fund Convention, in accordance with that Article; or
(b) the Director of the Supplementary Fund, the information referred to in Article 13 of the Supplementary Fund Protocol, in accordance with that Article.
Marginal note:Administrator’s liability
(3) The Administrator is liable for any financial loss to the International Fund or the Supplementary Fund, as the case may be, as a result of a failure to communicate the information.
Marginal note:Administrator’s powers
(4) The Administrator may, for the purpose of subsection (2),
(a) at any reasonable time, enter any place where he or she believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to information referred to in Article 15 of the Fund Convention or Article 13 of the Supplementary Fund Protocol, as the case may be;
(b) examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that he or she believes, on reasonable grounds, contains any such information; and
(c) require the owner, occupier or person in charge of the place to give the Administrator all reasonable assistance in connection with the examination and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at the place with the Administrator.
Marginal note:No obstruction or false statements
(5) No person shall obstruct or hinder the Administrator in the exercise of any powers under subsection (4) or knowingly make a false or misleading statement, either orally or in writing, to the Administrator while he or she is exercising those powers.
Marginal note:Warrant required to enter dwelling place
(6) A dwelling place may not be entered under subsection (4) unless it is entered with the occupant’s consent or under the authority of a warrant issued under subsection (7).
Marginal note:Authority to issue warrant
(7) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing the Administrator to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that
(a) the dwelling place is a place referred to in paragraph (4)(a);
(b) entry to the dwelling place is necessary for the purposes of subsection (2); and
(c) entry to the dwelling place has been refused or there are reasonable grounds to believe that it will be refused.
Marginal note:Records and books of account
118. (1) Every person referred to in subsection 112(4) from whom the levy payable under section 112 may be recovered shall keep at their place of business in Canada, or at any other place in Canada that may be designated by the Minister, records and books of account that set out
(a) the amounts that are payable by that person under that section;
(b) the type and quantity of the oil in respect of which the amounts referred to in paragraph (a) are payable;
(c) the time when and place where the amounts referred to in paragraph (a) were paid or security for their payment was given in accordance with subsection 112(3); and
(d) any other information that the Minister may require to determine the amounts referred to in paragraph (a) and the time when they become payable.
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 those records and books of account, and every account or voucher necessary to verify the information contained in them, until the expiry of six years after the end of the year to which the records or books of account relate.
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 them.
Marginal note:Inspection
119. (1) Any person designated in writing by the Minister for the purpose may, at any reasonable time, enter any place where the person believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to amounts payable under section 112 and
(a) examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that they believe, on reasonable grounds, contains any information relevant to the enforcement of this Part; and
(b) require the owner, occupier or person in charge of the place to give the designated person all reasonable assistance in connection with the examination under paragraph (a) and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at that place with the designated person.
Marginal note:Warrant to enter dwelling place
(2) A designated person may not enter a dwelling place unless they enter it with the occupant’s consent or under the authority of a warrant issued under subsection (3).
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 the designated person to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that
(a) the dwelling place is a place referred to in subsection (1);
(b) entry to the dwelling place is necessary for the purpose of subsection (1); and
(c) entry to the dwelling place has been refused or there are reasonable grounds to believe that it will be refused.
Marginal note:Certificate of designation
(4) The persons designated by the Minister shall be provided with a certificate of their designation and, on entering any place referred to in subsection (1), shall produce the certificate on request to the owner, occupier or person in charge of the place.
Marginal note:Report to Minister
(5) On the conclusion of an examination under this section, the designated person shall provide a 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 that is taken away under paragraph (1)(a) shall be returned to the person from whose custody it is taken within 21 days after it is taken or within any longer period that is directed by a judge of a superior court for cause or agreed to by a person who is entitled to its return.
Marginal note:Notice of application for extension of time
(7) An application to a judge referred to in subsection (6) for a direction under that subsection may only be made on notice to the person from whose custody the record, book of account, account, voucher or other document is taken.
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 and 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.
Governance of the Ship-source Oil Pollution Fund
Marginal note:Books of account and systems
120. (1) The Administrator shall cause
(a) books of account and records in relation to them to be kept; and
(b) control and information systems and management practices, related to financial and management matters, to be maintained.
Marginal note:Administrator’s responsibilities
(2) The books, records, systems and practices shall be kept or maintained, as the case may be, in a manner that provides reasonable assurance that
(a) the assets of the Ship-source Oil Pollution Fund are safeguarded and controlled;
(b) the transactions of the Ship-source Oil Pollution Fund are conducted in accordance with this Part; and
(c) the financial, human and physical resources of the Ship-source Oil Pollution Fund are managed economically and efficiently and the operations of that Fund are carried out effectively.
Marginal note:Annual report
121. (1) The Administrator shall, as soon as feasible, but in any case within three months after the end of each fiscal year, submit an annual report, in any form that the Minister may direct, on the Administrator’s operations in that year to the Minister who shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after he or she receives it.
Marginal note:Form and content
(2) The annual report must include
(a) the financial statements of the Ship-source Oil Pollution Fund;
(b) the auditor’s report with respect to the Ship-source Oil Pollution Fund’s financial statements; and
(c) the costs of preparing the auditor’s report.
Marginal note:Special examination
122. (1) The Administrator shall cause a special examination to be carried out in respect of the Ship-source Oil Pollution Fund to determine if the Fund’s systems and practices referred to in paragraph 120(1)(b) were, in the period under examination, maintained in a manner that provided reasonable assurance that they met the requirements of paragraphs 120(2)(a) and (c).
Marginal note:Time for examination
(2) A special examination shall be carried out at least once every five years by the Administrator and at any additional times that the Governor in Council or Minister may require.
Marginal note:Examiner
(3) The Governor in Council, Minister or Administrator shall appoint a person to act as an examiner for the purpose of conducting a special examination.
Marginal note:Independence of examiner
(4) The examiner shall not accept or hold any office or employment inconsistent with their functions under this section and section 123.
Marginal note:Plan
(5) Before an examiner begins a special examination, they shall survey the systems and practices of the Ship-source Oil Pollution Fund to be examined and submit a plan for the examination, including a statement of the criteria to be applied in the examination, to the Minister and the Administrator.
Marginal note:Resolution of disagreements
(6) Any disagreement between the examiner and the Administrator with respect to the plan shall be resolved by the Minister.
Marginal note:Report
123. (1) On the conclusion of the special examination, an examiner shall provide a report of their findings to the Minister and the Administrator.
Marginal note:Contents
(2) The examiner’s report must include
(a) a statement whether in their opinion, with respect to the criteria established under subsection 122(5), there is reasonable assurance that there are no significant deficiencies in the systems and practices examined; and
(b) a statement of the extent to which they relied on internal audits.
Marginal note:Right to information
124. (1) If the examiner considers it necessary to enable them to prepare a report as required by this Part, they may request that present or former Administrators, Deputy Administrators, employees, agents or mandataries of the Ship-source Oil Pollution Fund provide the examiner with the following to the extent they are reasonably able to do so:
(a) information and explanations; and
(b) access to that Fund’s records, books of account, accounts, vouchers and other documents.
Marginal note:Administrator’s responsibilities
(2) On the examiner’s request, the Administrator shall
(a) provide any information and explanations that the examiner considers necessary to enable the examiner to prepare any report that is required by this Part and that the Administrator is reasonably able to provide; and
(b) obtain from the former Administrator or the present or former Deputy Administrator, employees, agents or mandataries of that Fund any information and explanations that the examiner considers necessary to enable the examiner to prepare any report that is required by this Part and that the former Administrator or the present or former Deputy Administrator, employees, agents or mandataries are reasonably able to provide and provide the examiner with the information and explanations so obtained.
Regulations
Marginal note:Governor in Council
125. The Governor in Council may make regulations
(a) prescribing the manner in which the levy payable under section 112 is to be paid;
(b) respecting the filing with the Minister of information returns by the persons referred to in paragraph 112(4)(a) or (b) from whom the levy may be recovered;
(c) providing for the filing with the Minister or the Administrator of information returns necessary to enable the Administrator to discharge his or her obligations under section 117; and
(d) generally for carrying out the purposes and provisions of this Part.
PART 8 GENERAL PROVISIONS
Administration and Enforcement
Marginal note:Designated officers
126. (1) The Minister may designate a person or class of persons as officers to be responsible for the administration and enforcement of this Act.
Marginal note:Immunity
(2) A designated officer is not personally liable for anything they do or omit to do in good faith under this Act.
Marginal note:Crown not relieved
127. Subsection 126(2) does not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown of liability for a tort or extracontractual civil liability to which the Crown would otherwise be subject.
Marginal note:Powers
128. (1) A designated officer may, for the purpose of verifying compliance or preventing non-compliance with this Act, board a ship at any reasonable time. To that end, the designated officer may
(a) direct the ship to stop; and
(b) direct the ship to proceed to a place specified by them.
Marginal note:Duty to assist
(2) The owner, the master of the ship and any other person on board shall give a designated officer all reasonable assistance to enable the officer to carry out their duties and functions.
Marginal note:Detention
129. (1) If a designated officer believes, on reasonable grounds, that an offence in respect of sections 55 or 73 or regulations made under paragraph 39(a) or (b) has been committed by or in respect of a ship, they may make a detention order in respect of the ship.
Marginal note:Order to be in writing
(2) A detention order must be in writing and be addressed to every person empowered to grant clearance in respect of the ship.
Marginal note:Detention order to be served on master
(3) Notice of a detention order must be served on the master of the ship
(a) by delivering a copy of the notice personally to the master; or
(b) if service cannot reasonably be effected in the manner provided in paragraph (a), by leaving a copy of the notice with the person who is, or appears to be, in charge of the ship or, if there is no such person, by fixing a copy of it to a prominent part of the ship.
Marginal note:Contents of notice
(4) The notice must
(a) indicate the measures to be taken to ensure compliance with section 55 or 73 or regulations made under paragraph 39(a) or (b) that must be taken for the detention order to be revoked within any time specified in the order; and
(b) if an information has been laid in respect of the alleged offence, indicate the amount not exceeding $100,000 and form of security that, pending the outcome of any proceedings related to the information, must be deposited with the Minister for the detention order to be revoked.
Marginal note:Revocation of orders
(5) A designated officer shall
(a) revoke a detention order made under this section if they are satisfied that the measures indicated in the notice have been taken and, if applicable, that security in the amount and form indicated in the notice has been deposited with the Minister; and
(b) notify, in the form and manner specified by the Minister, the master and the persons referred to in subsection (2) of the revocation.
Marginal note:Duty of persons empowered to give clearance
(6) No person to whom a detention order made under this section is addressed shall, after having received notice of the order, grant clearance to the ship in respect of which the order is made unless they are notified that the order has been revoked.
Marginal note:Movement of ship prohibited
(7) Subject to section 130, no person shall move a ship that is subject to a detention order made under this section.
Marginal note:Liability for expenses
(8) The owner of a ship that is detained under this section is liable for all expenses incurred in respect of the detained ship.
Marginal note:Return of security
(9) The Minister, following the conclusion of any proceedings in respect of which security is deposited,
(a) may apply the security to reimburse Her Majesty in right of Canada, either fully or partially, if any of the expenses or any fine imposed is not paid; and
(b) shall return the security, or any part of it that remains if it is applied under paragraph (a), if all expenses and any fine imposed are paid.
Marginal note:Regulations
(10) The Governor in Council may make regulations respecting the detention of ships, including the review of detention orders.
Marginal note:Direction to move detained ship
130. The Minister may
(a) on application made by the owner or the master of a detained ship, in the form and manner prescribed by the Minister, permit the master to move it in accordance with the Minister’s directions;
(b) on application made by the owner of a dock or wharf, or by the person in charge of a harbour, at which a detained ship is situated, in the form and manner prescribed by the Minister, direct the person who is, or appears to be, in charge of the ship to move the ship in accordance with the Minister’s directions; and
(c) if a person to whom a direction is given under paragraph (b) does not comply with it and the Minister is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the ship, authorize the applicant to move it in accordance with the Minister’s directions and at the owner’s expense.
Offences
Marginal note:Contraventions
131. Every person who, or ship that, contravenes subsection 55(1) or (2), 73(1) or (2), 128(2) or 129(6) or (7) or regulations made under section 39 is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.
Marginal note:Evading payment
132. (1) Any person who wilfully evades or attempts to evade payment of an amount payable under section 112 is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.
Marginal note:Failure to file information return
(2) Any person who fails to file the information return referred to in paragraph 125(b) is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000 for each day of default.
Marginal note:Falsifying or destroying books of account
(3) 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 118 is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.
Marginal note:Contraventions
(4) Every person who contravenes subsection 117(5), section 118 or subsection 119(9) is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.
Definition of “person”
(5) For the purposes of this section, “person” has the same meaning as in Article I of the Civil Liability Convention within the meaning of subsection 47(1).
Marginal note:Jurisdiction in relation to offences
133. When a person or a ship is charged with having committed an offence under this Act, any court in Canada that would have had cognizance of the offence if it had been committed by a person or ship within the limits of its ordinary jurisdiction has jurisdiction to try the offence as if it had been committed there.
Marginal note:Proof of offence
134. In a prosecution of a ship for an offence under this Act, it is sufficient proof that the ship has committed the offence to establish that the act or omission that constitutes the offence was committed by the master or any person on board, other than a designated officer, whether or not the person on board is identified.
Marginal note:Limitation period
135. (1) Proceedings by way of summary conviction under this Act may be instituted within two years after the day on which the Minister becomes aware of the subject matter of the proceedings.
Marginal note:Minister’s certificate
(2) A document that purports to have been issued by the Minister and that certifies the day on which he or she became aware of the subject matter of the proceedings is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is evidence that the Minister became aware of the subject matter on that day.
Marginal note:Defendant outside Canada
(3) If the proceedings cannot be commenced within two years because the proposed defend-ant is outside Canada, the proceedings may be commenced not later than two months after the defendant returns to Canada.
Sale of Ships
Marginal note:Application by Minister
136. (1) The Minister may apply to any court of competent jurisdiction for an order authorizing him or her to sell a ship that has been detained under section 129 if
(a) an information is laid in respect of an offence under subsection 55(1) or (2) or 73(1) or (2) or of a regulation made under paragraph 39(a) or (b), and
(i) the security required under paragraph 129(4)(b) is not deposited within the time specified in the detention order,
(ii) the person or ship charged is convicted, and
(iii) the fine imposed and the expenses incurred in respect of the detained ship have not been paid; and
(b) no information is laid and
(i) the measures referred to in paragraph 129(4)(a) have not been taken within the time specified in the detention order, and
(ii) the expenses incurred in respect of the detained ship have not been paid.
Marginal note:Court may authorize sale
(2) A court seized of an application for the sale of a ship may
(a) authorize the Minister to sell the ship in the manner and subject to the terms and conditions that it considers appropriate; and
(b) on application by the Minister or a person referred to in paragraph 137(1)(b) or (c), give directions concerning the ranking of the interests in the ship.
Marginal note:Notice
137. (1) As soon as is feasible after making an application under section 136, the Minister shall give notice of the application by registered mail to
(a) the registrar of the register in which the ship is registered;
(b) the holder of any mortgage registered against the ship that is registered in the register referred to in paragraph (a); and
(c) the holder of any maritime lien against the ship and the holder of any similar interest, if the holder is known to the Minister at the time of the application.
Marginal note:Day notice deemed to be given
(2) A notice sent by registered mail is deemed to have been given to the person to whom it is sent on the day on which the Minister receives an acknowledgement of receipt.
Marginal note:Relief from giving notice
(3) If the court that is seized of an application for the sale of a ship is satisfied that it is appropriate to do so, it may relieve the Minister of the obligation to give the notice referred to in subsection (1), or authorize him or her to give the notice in any other manner that it considers appropriate.
Marginal note:Payment of proceeds
138. (1) If a ship is sold under an order, the proceeds of the sale shall be applied to satisfy claims in the following order of priority:
(a) the expenses incurred in respect of the detained ship and its sale;
(b) the claims of the master and crew members for wages;
(c) the amount of any fine imposed;
(d) the interests of persons who have been recognized and ranked by the court under paragraph 136(2)(b).
Marginal note:Surplus
(2) Any surplus of the proceeds of sale remaining after all claims have been satisfied is to be paid to the person registered as the owner of the ship or, in the absence of any registration, to the person who owns the ship.
Marginal note:Proceedings against owner
(3) If the proceeds of sale of a ship are insufficient to satisfy the claims described in paragraphs (1)(a) and (c), the Minister may proceed against the owner of the ship for the balance owing.
Marginal note:Clear title
(4) On selling a ship under an order, the Minister may, by bill of sale, give the purchaser a valid title to the ship free from any mortgage or other claim that is in existence at the time of the sale.
12. The Act is amended by adding the following in numerical order:
Maritime Lien
Definition of “foreign vessel”
139. (1) In this section, “foreign vessel” has the same meaning as in section 2 of the Canada Shipping Act, 2001.
Marginal note:Maritime lien
(2) A person, carrying on business in Canada, has a maritime lien against a foreign vessel for claims that arise
(a) in respect of goods, materials or services wherever supplied to the foreign vessel for its operation or maintenance, including, without restricting the generality of the foregoing, stevedoring and lighterage; or
(b) out of a contract relating to the repair or equipping of the foreign vessel.
Marginal note:Services requested by owner
(2.1) Subject to section 251 of the Canada Shipping Act, 2001, for the purposes of paragraph (2)(a), with respect to stevedoring or lighterage, the services must have been provided at the request of the owner of the foreign vessel or a person acting on the owner’s behalf.
Marginal note:Exception
(3) A maritime lien against a foreign vessel may be enforced by an action in rem against a foreign vessel unless
(a) the vessel is a warship, coast guard ship or police vessel; or
(b) at the time the claim arises or the action is commenced, the vessel is being used exclusively for non-commercial governmental purposes.
Marginal note:Federal Courts Act
(4) Subsection 43(3) of the Federal Courts Act does not apply to a claim secured by a maritime lien under this section.
Limitation Period
Marginal note:Proceedings under maritime law
140. Except as otherwise provided in this Act or in any other Act of Parliament, no proceedings under Canadian maritime law in relation to any matter coming within the class of navigation and shipping may be commenced later than three years after the day on which the cause of action arises.
13. The Act is amended by adding the following in numerical order:
Inconsistency
Marginal note:Priority over Arctic Waters Pollution Prevention Act
141. In the event of an inconsistency between this Act and the provisions of the Arctic Waters Pollution Prevention Act, the provisions of this Act prevail to the extent of the inconsistency.
Coming Into Force
Marginal note:Order in council
142. Section 45 comes into force on a day to be fixed by order of the Governor in Council.
14. Schedule 1 to the Act is amended by replacing the reference “(Section 24)” after the heading “SCHEDULE 1” with the references “(Section 24 and subsections 26(2) and 31(1))”.
15. Schedule 1 to the Act is amended by adding the following after Part 2:
PART 3
Text of reservations made under 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
1. Claims in respect of the raising, removal, destruction or rendering harmless of a ship that is sunk, wrecked, stranded or abandoned, including anything that is or has been on board that ship.
16. Schedule 2 to the Act is amended by replacing the reference “(Section 35)” after the heading “SCHEDULE 2” with the references “(Sections 35 and 40)”.
17. The Act is amended by adding, after Schedule 4, the Schedules 5 to 8 set out in the schedule to this Act.
R.S., c. F-7; 2002, c. 8, s. 14 FEDERAL COURTS ACT
Marginal note:2002, c. 8, s. 40(4)
18. Subsection 43(8) of the English version of the Federal Courts Act is replaced by the following:
Marginal note:Arrest
(8) The jurisdiction conferred on the Federal Court by section 22 may be exercised in rem against any ship that, at the time the action is brought, is owned by the beneficial owner of the ship that is the subject of the action.
TRANSITIONAL PROVISIONS
19. A claim to recover loss, damage, costs or expenses filed with the Administrator under section 85 of the Marine Liability Act before the day on which this section comes into force is deemed to have been filed under section 103 of the Marine Liability Act, as enacted by section 11.
20. The Administrator and Deputy Administrator who are in office on the day on which this section comes into force shall continue to perform their duties and functions as if they had been appointed under section 94 or 95, as the case may be, of the Marine Liability Act, as enacted by section 11.
CONSEQUENTIAL AMENDMENTS
R.S., c. A-12Arctic Waters Pollution Prevention Act
Marginal note:2001, c. 6, s. 109
21. Section 2.1 of the Arctic Waters Pollution Prevention Act is replaced by the following:
Marginal note:Inconsistency with 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 the Marine Liability Act, the provisions of that Act prevail to the extent of the inconsistency.
2002, c. 10Nunavut Waters and Nunavut Surface Rights Tribunal Act
22. Subsection 152(3) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act is replaced by the following:
Marginal note:Definitions from Marine Liability Act
(3) For the purposes of the definition “developer” in subsection (1) and for the purposes of sections 153 and 154, the words “discharge”, “oil”, “owner” and “ship” have the same meaning as in section 91 of the Marine Liability Act.
23. Subsection 154(2) of the Act is replaced by the following:
Marginal note:Liability of Fund
(2) In relation to loss or damage resulting from a discharge of oil from a ship that is engaged in marine transportation as described in paragraph (c) of the definition “development activity” in subsection 152(1), the Ship-source Oil Pollution Fund established under Part 7 of the Marine Liability Act is liable to the same extent that a developer would be liable under section 153 if paragraph 153(2)(b) did not apply.
COMING INTO FORCE
Marginal note:Royal assent
24. (1) Sections 1 to 10, 12, 14 to 16 and 18 come into force 90 days after the day on which this Act receives royal assent.
Marginal note:Order in council
(2) Sections 11, 13, 17 and 19 to 23 come into force on a day to be fixed by order of the Governor in Council.
SCHEDULE(Section 17)
SCHEDULE 5(Sections 48 and 50)TEXT OF ARTICLES I TO XI, XII BIS AND 15 OF THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1992, AS AMENDED BY THE RESOLUTION OF 2000
ARTICLE I
For the purposes of this Convention:
1. “Ship” means any sea-going vessel and seaborne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.
2. “Person” means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.
3. “Owner” means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, “owner” shall mean such company.
4. “State of the ship’s registry” means in relation to registered ships the State of registration of the ship, and in relation to unregistered ships the State whose flag the ship is flying.
5. “Oil” means any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such a ship.
6. “Pollution damage” means:
(a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;
(b) the costs of preventive measures and further loss or damage caused by preventive measures.
7. “Preventive measures” means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.
8. “Incident” means any occurrence, or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage.
9. “Organization” means the International Maritime Organization.
10. “1969 Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1969. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1969 Liability Convention as amended by that Protocol.
ARTICLE II
This Convention shall apply exclusively:
(a) to pollution damage caused:
(i) in the territory, including the territorial sea, of a Contracting State, and
(ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;
(b) to preventive measures, wherever taken, to prevent or minimize such damage.
ARTICLE III
1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.
2. No liability for pollution damage shall attach to the owner if he proves that the damage:
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character, or
(b) was wholly caused by an act or omission done with intent to cause damage by a third party, 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.
3. If the owner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from his liability to such person.
4. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:
(a) the servants or agents of the owner or the members of the crew;
(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;
(c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;
(d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;
(e) any person taking preventive measures;
(f) all servants or agents of persons mentioned in subparagraphs (c), (d) and (e);
unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.
5. Nothing in this Convention shall prejudice any right of recourse of the owner against third parties.
ARTICLE IV
When an incident involving two or more ships occurs and pollution damage results therefrom, the owners of all the ships concerned, unless exonerated under Article III, shall be jointly and severally liable for all such damage which is not reasonably separable.
ARTICLE V
1. The owner of a ship shall be entitled to limit his liability under this Convention in respect of any one incident to an aggregate amount calculated as follows:
(a) 4,510,000 units of account for a ship not exceeding 5,000 units of tonnage;
(b) for a ship with a tonnage in excess thereof, for each additional unit of tonnage, 631 units of account in addition to the amount mentioned in sub-paragraph (a);
provided, however, that this aggregate amount shall not in any event exceed 89,770,000 units of account.
2. The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.
3. For the purpose of availing himself of the benefit of limitation provided for in paragraph 1 of this Article the owner shall constitute a fund for the total sum representing the limit of his liability with the Court or other competent authority of any one of the Contracting States in which action is brought under Article IX or, if no action is brought, with any Court or other competent authority in any one of the Contracting States in which an action can be brought under Article IX. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the legislation of the Contracting State where the fund is constituted, and considered to be adequate by the Court or other competent authority.
4. The fund shall be distributed among the claimants in proportion to the amounts of their established claims.
5. If before the fund is distributed the owner or any of his servants or agents or any person providing him insurance or other financial security has as a result of the incident in question, paid compensation for pollution damage, 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.
6. The right of subrogation provided for in paragraph 5 of this Article may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for pollution damage which he may have paid but only to the extent that such subrogation is permitted under the applicable national law.
7. Where the owner 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 under paragraphs 5 or 6 of this Article, 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.
8. Claims in respect of expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall rank equally with other claims against the fund.
9. (a) The “unit of account” referred to in paragraph 1 of this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in paragraph 1 shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the constitution of the fund referred to in paragraph 3. The value of the national currency, in terms of the Special Drawing Right, of a Contracting 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 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 Contracting State which is not a member of the International Monetary Fund shall be calculated in a manner determined by that State.
(b) Nevertheless, a Contracting State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 9(a) may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 9(a) shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned.
(c) The calculation mentioned in the last sentence of paragraph 9(a) and the conversion mentioned in paragraph 9(b) shall be made in such manner as to express in the national currency of the Contracting State as far as possible the same real value for the amounts in paragraph 1 as would result from the application of the first three sentences of paragraph 9(a). Contracting States shall communicate to the depositary the manner of calculation pursuant to paragraph 9(a), or the result of the conversion in paragraph 9(b) as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.
10. For the purpose of this Article the ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.
11. The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this Article on the same conditions and having the same effect as if it were constituted by the owner. Such a fund may be constituted even if, under the provisions of paragraph 2, the owner is not entitled to limit his liability, but its constitution shall in that case not prejudice the rights of any claimant against the owner.
ARTICLE VI
1. Where the owner, after an incident, has constituted a fund in accordance with Article V, and is entitled to limit his liability,
(a) no person having a claim for pollution damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim;
(b) the Court or other competent authority of any Contracting State shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for pollution damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest.
2. The foregoing shall, however, only apply if the claimant has access to the Court administering the fund and the fund is actually available in respect of his claim.
ARTICLE VII
1. The owner of a ship registered in a Contracting State and carrying more than 2,000 tons of oil in bulk as cargo shall be required to maintain insurance or other financial security, such as the guarantee of a bank or a certificate delivered by an international compensation fund, in the sums fixed by applying the limits of liability prescribed in Article V, paragraph 1 to cover his liability for pollution damage under this Convention.
2. A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a Contracting State has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a Contracting State such certificate shall be issued or certified by the appropriate authority of the State of the ship’s registry; with respect to a ship not registered in a Contracting State it may be issued or certified by the appropriate authority of any Contracting State. This certificate shall be in the form of the annexed model and shall contain the following particulars:
(a) name of ship and port of registration;
(b) name and principal place of business of owner;
(c) type of security;
(d) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established;
(e) period of validity of certificate which shall not be longer than the period of validity of the insurance or other security.
3. The certificate shall be in the official language or languages of the issuing State. If the language used is neither English nor French, the text shall include a translation into one of these languages.
4. The certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship’s registry or, if the ship is not registered in a Contracting State, with the authorities of the State issuing or certifying the certificate.
5. An insurance or other financial security shall not satisfy the requirements of this Article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2 of this Article, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 4 of this Article, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this Article.
6. The State of registry shall, subject to the provisions of this Article, determine the conditions of issue and validity of the certificate.
7. Certificates issued or certified under the authority of a Contracting State in accordance with paragraph 2 shall be accepted by other Contracting States for the purposes of this Convention and shall be regarded by other Contracting States as having the same force as certificates issued or certified by them even if issued or certified in respect of a ship not registered in a Contracting State. A Contracting State may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the certificate is not financially capable of meeting the obligations imposed by this Convention.
8. Any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the owner’s liability for pollution damage. In such case the defendant may, even if the owner is not entitled to limit his liability according to Article V, paragraph 2, avail himself of the limits of liability prescribed in Article V, paragraph 1. He may further avail himself of the defences (other than the bankruptcy or winding up of the owner) which the owner himself would have been entitled to invoke. Furthermore, the defendant may avail himself of the defence that the pollution damage resulted from the wilful misconduct of the owner himself, but the defendant shall not avail himself of any other defence which he might have been entitled to invoke in proceedings brought by the owner against him. The defendant shall in any event have the right to require the owner to be joined in the proceedings.
9. Any sums provided by insurance or by other financial security maintained in accordance with paragraph 1 of this Article shall be available exclusively for the satisfaction of claims under this Convention.
10. A Contracting State shall not permit a ship under its flag to which this Article applies to trade unless a certificate has been issued under paragraph 2 or 12 of this Article.
11. Subject to the provisions of this Article, each Contracting State shall ensure, under its national legislation, that insurance or other security to the extent specified in paragraph 1 of this Article is in force in respect of any ship, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an off-shore terminal in its territorial sea, if the ship actually carries more than 2,000 tons of oil in bulk as cargo.
12. If insurance or other financial security is not maintained in respect of a ship owned by a Contracting State, the provisions of this Article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authorities of the State of the ship’s registry stating that the ship is owned by that State and that the ship’s liability is covered within the limits prescribed by Article V, paragraph 1. Such a certificate shall follow as closely as practicable the model prescribed by paragraph 2 of this Article.
ARTICLE VIII
Rights of compensation under this Convention shall be extinguished unless an action is brought thereunder within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage. Where this incident consists of a series of occurrences, the six years’ period shall run from the date of the first such occurrence.
ARTICLE IX
1. Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in Article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States. Reasonable notice of any such action shall be given to the defendant.
2. Each Contracting State shall ensure that its Courts possess the necessary jurisdiction to entertain such actions for compensation.
3. After the fund has been constituted in accordance with Article V the Courts of the State in which the fund is constituted shall be exclusively competent to determine all matters relating to the apportionment and distribution of the fund.
ARTICLE X
1. Any judgment given by a Court with jurisdiction in accordance with Article IX which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognized in any Contracting State, except:
(a) where the judgment was obtained by fraud; or
(b) where the defendant was not given reasonable notice and a fair opportunity to present his case.
2. A judgment recognized under paragraph 1 of this Article shall be enforceable in each Contracting State as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.
ARTICLE XI
1. The provisions of this Convention shall not apply to warships or other ships owned or operated by a State and used, for the time being, only on government non-commercial service.
2. With respect to ships owned by a Contracting State and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in Article IX and shall waive all defences based on its status as a sovereign State.
ARTICLE XII BIS
TRANSITIONAL PROVISIONS
The following transitional provisions shall apply in the case of a State which at the time of an incident is a Party both to this Convention and to the 1969 Liability Convention:
(a) where an incident has caused pollution damage within the scope of this Convention, liability under this Convention shall be deemed to be discharged if, and to the extent that, it also arises under the 1969 Liability Convention;
(b) where an incident has caused pollution damage within the scope of this Convention, and the State is a Party both to this Convention and to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, liability remaining to be discharged after the application of subparagraph (a) of this Article shall arise under this Convention only to the extent that pollution damage remains uncompensated after application of the said 1971 Convention;
(c) in the application of Article III, paragraph 4, of this Convention the expression “this Convention” shall be interpreted as referring to this Convention or the 1969 Liability Convention, as appropriate;
(d) in the application of Article V, paragraph 3, of this Convention the total sum of the fund to be constituted shall be reduced by the amount by which liability has been deemed to be discharged in accordance with sub-paragraph (a) of this Article.
ARTICLE 15
AMENDMENTS OF LIMITATION AMOUNTS
1. Upon the request of at least one quarter of the Contracting States any proposal to amend the limits of liability laid down in Article V, paragraph 1, of the 1969 Liability 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 for consideration at a date at least six months after the date of its circulation.
3. All Contracting States to the 1969 Liability 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 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 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. It shall also take into account the relationship between the limits in Article V, paragraph 1, of the 1969 Liability Convention as amended by this Protocol and those in Article 4, paragraph 4, of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992.
6. (a) No amendment of the limits of liability under this Article may be considered before 15 January 1998 nor less than five years from the date of entry into force of a previous amendment under this Article. No amendment under this Article shall be considered before this Protocol has entered into force.
(b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1969 Liability Convention as amended by this Protocol increased by 6 per cent per year calculated on a compound basis from 15 January 1993.
(c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1969 Liability Convention as amended by this Protocol multiplied by 3.
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 quarter of the States that were Contracting States at the time of the adoption of the amendment by the Legal Committee have communicated to the Organization 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 Article 16, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.
10. When an amendment has been adopted by the Legal Committee 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.
ANNEXCERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF CIVIL LIABILITY FOR OIL POLLUTION DAMAGE
Issued in accordance with the provisions of Article VII of the International Convention on Civil Liability for Oil Pollution Damage, 1992.
Name of ship
Distinctive number or letters
Port of registry
Name and address of owner
This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of Article VII of the International Convention on Civil Liability for Oil Pollution Damage, 1992.
Type of Security
Duration of Security
Name and Address of the Insurer(s) and/or Guarantor(s)
Name
Address
This certificate is valid until
Issued or certified by the Government of
(Full designation of the State)
At
On
(Place)
(Date)
......................................
Signature and Title of issuing or certifying official
Explanatory Notes:
1
If desired, the designation of the State may include a reference to the competent public authority of the country where the certificate is issued.
2
If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated.
3
If security is furnished in several forms, these should be enumerated.
4
The entry “Duration of Security” must stipulate the date on which such security takes effect.
SCHEDULE 6(Sections 57 and 59)TEXT OF ARTICLES 1 TO 4, 6 TO 10, 12 TO 15, 36 TER, 29, 33 AND 37 OF THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 1992, AS AMENDED BY THE RESOLUTION OF 2000
GENERAL PROVISIONS
Article 1
For the purposes of this Convention:
1. “1992 Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1992.
1bis. “1971 Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. For States Parties to the Protocol of 1976 to that Convention, the term shall be deemed to include the 1971 Fund Convention as amended by that Protocol.
2. “Ship”, “Person”, “Owner”, “Oil”, “Pollution Damage”, “Preventive Measures”, “Incident”, and “Organization” have the same meaning as in Article I of the 1992 Liability Convention.
3. “Contributing Oil” means crude oil and fuel oil as defined in sub-paragraphs (a) and (b) below:
(a) “Crude Oil” means any liquid hydrocarbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation. It also includes crude oils from which certain distillate fractions have been removed (sometimes referred to as “topped crudes”) or to which certain distillate fractions have been added (sometimes referred to as “spiked” or “reconstituted” crudes).
(b) “Fuel Oil” means heavy distillates or residues from crude oil or blends of such materials intended for use as a fuel for the production of heat or power of a quality equivalent to the “American Society for Testing and Materials’ Specification for Number Four Fuel Oil (Designation D 396-69)”, or heavier.
4. “Unit of account” has the same meaning as in Article V, paragraph 9, of the 1992 Liability Convention.
5. “Ship’s tonnage” has the same meaning as in Article V, paragraph 10, of the 1992 Liability Convention.
6. “Ton”, in relation to oil, means a metric ton.
7. “Guarantor” means any person providing insurance or other financial security to cover an owner’s liability in pursuance of Article VII, paragraph 1, of the 1992 Liability Convention.
8. “Terminal installation” means any site for the storage of oil in bulk which is capable of receiving oil from waterborne transportation, including any facility situated off-shore and linked to such site.
9. Where an incident consists of a series of occurrences, it shall be treated as having occurred on the date of the first such occurrence.
Article 2
1. An International Fund for compensation for pollution damage, to be named “The International Oil Pollution Compensation Fund 1992” and hereinafter referred to as “the Fund”, is hereby established with the following aims:
(a) to provide compensation for pollution damage to the extent that the protection afforded by the 1992 Liability Convention is inadequate;
(b) to give effect to the related purposes set out in this Convention.
2. The Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognize the Director of the Fund (hereinafter referred to as “The Director”) as the legal representative of the Fund.
Article 3
This Convention shall apply exclusively:
(a) to pollution damage caused:
(i) in the territory, including the territorial sea, of a Contracting State, and
(ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;
(b) to preventive measures, wherever taken, to prevent or minimize such damage.
COMPENSATION
Article 4
1. For the purpose of fulfilling its function under Article 2, paragraph 1(a), the Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for the damage under the terms of the 1992 Liability Convention,
(a) because no liability for the damage arises under the 1992 Liability Convention;
(b) because the owner liable for the damage under the 1992 Liability Convention is financially incapable of meeting his obligations in full and any financial security that may be provided under Article VII of that Convention does not cover or is insufficient to satisfy the claims for compensation for the damage; an owner being treated as financially incapable of meeting his obligations and a financial security being treated as insufficient if the person suffering the damage has been unable to obtain full satisfaction of the amount of compensation due under the 1992 Liability Convention after having taken all reasonable steps to pursue the legal remedies available to him;
(c) because the damage exceeds the owner’s liability under the 1992 Liability Convention as limited pursuant to Article V, paragraph 1, of that Convention or under the terms of any other international Convention in force or open for signature, ratification or accession at the date of this Convention.
Expenses reasonably incurred or sacrifices reasonably made by the owner voluntarily to prevent or minimize pollution damage shall be treated as pollution damage for the purposes of this Article.
2. The Fund shall incur no obligation under the preceding paragraph if:
(a) it proves that the pollution damage resulted from an act of war, hostilities, civil war or insurrection or was caused by oil which has escaped or been discharged from a warship or other ship owned or operated by a State and used, at the time of the incident, only on Government non-commercial service; or
(b) the claimant cannot prove that the damage resulted from an incident involving one or more ships.
3. If the Fund proves that the pollution damage resulted wholly or partially either from an act or omission done with the intent to cause damage by the person who suffered the damage or from the negligence of that person, the Fund may be exonerated wholly or partially from its obligation to pay compensation to such person. The Fund shall in any event be exonerated to the extent that the shipowner may have been exonerated under Article III, paragraph 3, of the 1992 Liability Convention. However, there shall be no such exoneration of the Fund with regard to preventive measures.
4. (a) Except as otherwise provided in sub-paragraphs (b) and (c) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in respect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid under the 1992 Liability Convention for pollution damage within the scope of application of this Convention as defined in Article 3 shall not exceed 203,000,000 units of account.
(b) Except as otherwise provided in sub-paragraph (c), the aggregate amount of compensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 203,000,000 units of account.
(c) The maximum amount of compensation referred to in sub-paragraphs (a) and (b) shall be 300,740,000 units of account with respect to any incident occurring during any period when there are three Parties to this Convention in respect of which the combined relevant quantity of contributing oil received by persons in the territories of such Parties, during the preceding calendar year, equalled or exceeded 600 million tons.
(d) Interest accrued on a fund constituted in accordance with Article V, paragraph 3, of the 1992 Liability Convention, if any, shall not be taken into account for the computation of the maximum compensation payable by the Fund under this Article.
(e) The amounts mentioned in this Article shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of the decision of the Assembly of the Fund as to the first date of payment of compensation.
5. Where the amount of established claims against the Fund exceeds the aggregate amount of compensation payable under paragraph 4, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Convention shall be the same for all claimants.
6. The Assembly of the Fund may decide that, in exceptional cases, compensation in accordance with this Convention can be paid even if the owner of the ship has not constituted a fund in accordance with Article V, paragraph 3, of the 1992 Liability Convention. In such case paragraph 4(e) of this Article applies accordingly.
7. The Fund shall, at the request of a Contracting State, use its good offices as necessary to assist that State to secure promptly such personnel, material and services as are necessary to enable the State to take measures to prevent or mitigate pollution damage arising from an incident in respect of which the Fund may be called upon to pay compensation under this Convention.
8. The Fund may on conditions to be laid down in the Internal Regulations provide credit facilities with a view to the taking of preventive measures against pollution damage arising from a particular incident in respect of which the Fund may be called upon to pay compensation under this Convention.
Article 6
Rights to compensation under Article 4 shall be extinguished unless an action is brought thereunder or a notification has been made pursuant to Article 7, paragraph 6, within three years from the date when the damage occurred. However, in no case shall an action be brought after six years from the date of the incident which caused the damage.
Article 7
1. Subject to the subsequent provisions of this Article, any action against the Fund for compensation under Article 4 of this Convention shall be brought only before a court competent under Article IX of the 1992 Liability Convention in respect of actions against the owner who is or who would, but for the provisions of Article III, paragraph 2, of that Convention, have been liable for pollution damage caused by the relevant incident.
2. Each Contracting State shall ensure that its courts possess the necessary jurisdiction to entertain such actions against the Fund as are referred to in paragraph 1.
3. Where an action for compensation for pollution damage has been brought before a court competent under Article IX of the 1992 Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Fund for compensation under the provisions of Article 4 of this Convention in respect of the same damage. However, where an action for compensation for pollution damage under the 1992 Liability Convention has been brought before a court in a State Party to the 1992 Liability Convention but not to this Convention, any action against the Fund under Article 4 of this Convention shall at the option of the claimant be brought either before a court of the State where the Fund has its headquarters or before any court of a State Party to this Convention competent under Article IX of the 1992 Liability Convention.
4. Each Contracting State shall ensure that the Fund shall have the right to intervene as a party to any legal proceedings instituted in accordance with Article IX of the 1992 Liability Convention before a competent court of that State against the owner of a ship or his guarantor.
5. Except as otherwise provided in paragraph 6, the Fund shall not be bound by any judgment or decision in proceedings to which it has not been a party or by any settlement to which it is not a party.
6. Without prejudice to the provisions of paragraph 4, where an action under the 1992 Liability Convention for compensation for pollution damage has been brought against an owner or his guarantor before a competent court in a Contracting State, each party to the proceedings shall be entitled under the national law of that State to notify the Fund of the proceedings. Where such notification has been made in accordance with the formalities required by the law of the court seized and in such time and in such a manner that the Fund has in fact been in a position effectively to intervene as a party to the proceedings, any judgment rendered by the court in such proceedings shall, after it has become final and enforceable in the State where the judgment was given, become binding upon the Fund in the sense that the facts and findings in that judgment may not be disputed by the Fund even if the Fund has not actually intervened in the proceedings.
Article 8
Subject to any decision concerning the distribution referred to in Article 4, paragraph 5, any judgment given against the Fund by a court having jurisdiction in accordance with Article 7, paragraphs 1 and 3, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in Article X of the 1992 Liability Convention.
Article 9
1. The Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund in accordance with Article 4, paragraph 1, of this Convention, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor.
2. Nothing in this Convention shall prejudice any right of recourse or subrogation of the Fund against persons other than those referred to in the preceding paragraph. In any event the right of the Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation has been paid.
3. Without prejudice to any other rights of subrogation or recourse against the Fund which may exist, a Contracting State or agency thereof which has paid compensation for pollution damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.
CONTRIBUTIONS
Article 10
1. Annual contributions to the Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in Article 12, paragraph 2(a) or (b), has received in total quantities exceeding 150,000 tons:
(a) in the ports or terminal installations in the territory of that State contributing oil carried by sea to such ports or terminal installations; and
(b) in any installations situated in the territory of that Contracting State contributing oil which has been carried by sea and discharged in a port or terminal installation of a non-Contracting State, provided that contributing oil shall only be taken into account by virtue of this sub-paragraph on first receipt in a Contracting State after its discharge in that non-Contracting State.
2. (a) For the purposes of paragraph 1, where the quantity of contributing oil received in the territory of a Contracting State by any person in a calendar year when aggregated with the quantity of contributing oil received in the same Contracting State in that year by any associated person or persons exceeds 150,000 tons, such person shall pay contributions in respect of the actual quantity received by him notwithstanding that that quantity did not exceed 150,000 tons.
(b) “Associated person” means any subsidiary or commonly controlled entity. The question whether a person comes within this definition shall be determined by the national law of the State concerned.
Article 12
1. With a view to assessing the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the Assembly shall for each calendar year make an estimate in the form of a budget of:
(i) Expenditure
(a) costs and expenses of the administration of the Fund in the relevant year and any deficit from operations in preceding years;
(b) payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4, including repayment on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident does not exceed four million units of account;
(c) payments to be made by the Fund in the relevant year for the satisfaction of claims against the Fund due under Article 4, including repayments on loans previously taken by the Fund for the satisfaction of such claims, to the extent that the aggregate amount of such claims in respect of any one incident is in excess of four million units of account;
(ii) Income
(a) surplus funds from operations in preceding years, including any interest;
(b) annual contributions, if required to balance the budget;
(c) any other income.
2. The Assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director shall, in respect of each Contracting State, calculate for each person referred to in Article 10 the amount of his annual contribution:
(a) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(a) and (b) on the basis of a fixed sum for each ton of contributing oil received in the relevant State by such persons during the preceding calendar year; and
(b) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(c) of this Article on the basis of a fixed sum for each ton of contributing oil received by such person during the calendar year preceding that in which the incident in question occurred, provided that State was a Party to this Convention at the date of the incident.
3. The sums referred to in paragraph 2 above shall be arrived at by dividing the relevant total amount of contributions required by the total amount of contributing oil received in all Contracting States in the relevant year.
4. The annual contribution shall be due on the date to be laid down in the Internal Regulations of the Fund. The Assembly may decide on a different date of payment.
5. The Assembly may decide, under conditions to be laid down in the Financial Regulations of the Fund, to make transfers between funds received in accordance with Article 12.2(a) and funds received in accordance with Article 12.2(b).
Article 13
1. The amount of any contribution due under Article 12 and which is in arrears shall bear interest at a rate which shall be determined in accordance with the Internal Regulations of the Fund, provided that different rates may be fixed for different circumstances.
2. Each Contracting State shall ensure that any obligation to contribute to the Fund arising under this Convention in respect of oil received within the territory of that State is fulfilled and shall take any appropriate measures under its law, including the imposing of such sanctions as it may deem necessary, with a view to the effective execution of any such obligation; provided, however, that such measures shall only be directed against those persons who are under an obligation to contribute to the Fund.
3. Where a person who is liable in accordance with the provisions of Articles 10 and 12 to make contributions to the Fund does not fulfil his obligations in respect of any such contribution or any part thereof and is in arrear, the Director shall take all appropriate action against such person on behalf of the Fund with a view to the recovery of the amount due. However, where the defaulting contributor is manifestly insolvent or the circumstances otherwise so warrant, the Assembly may, upon recommendation of the Director, decide that no action shall be taken or continued against the contributor.
Article 14
1. Each Contracting State may at the time when it deposits its instrument of ratification or accession or at any time thereafter declare that it assumes itself obligations that are incumbent under this Convention on any person who is liable to contribute to the Fund in accordance with Article 10, paragraph 1, in respect of oil received within the territory of that State. Such declaration shall be made in writing and shall specify which obligations are assumed.
2. Where a declaration under paragraph 1 is made prior to the entry into force of this Convention in accordance with Article 40, it shall be deposited with the Secretary-General of the Organization who shall after the entry into force of the Convention communicate the declaration to the Director.
3. A declaration under paragraph 1 which is made after the entry into force of this Convention shall be deposited with the Director.
4. A declaration made in accordance with this Article may be withdrawn by the relevant State giving notice thereof in writing to the Director. Such notification shall take effect three months after the Director’s receipt thereof.
5. Any State which is bound by a declaration made under this Article shall, in any proceedings brought against it before a competent court in respect of any obligation specified in the declaration, waive any immunity that it would otherwise be entitled to invoke.
Article 15
1. Each Contracting State shall ensure that any person who receives contributing oil within its territory in such quantities that he is liable to contribute to the Fund appears on a list to be established and kept up to date by the Director in accordance with the subsequent provisions of this Article.
2. For the purposes set out in paragraph 1, each Contracting State shall communicate, at a time and in the manner to be prescribed in the Internal Regulations, to the Director the name and address of any person who in respect of that State is liable to contribute to the Fund pursuant to Article 10, as well as data on the relevant quantities of contributing oil received by any such person during the preceding calendar year.
3. For the purposes of ascertaining who are, at any given time, the persons liable to contribute to the Fund in accordance with Article 10, paragraph 1, and of establishing, where applicable, the quantities of oil to be taken into account for any such person when determining the amount of his contribution, the list shall be prima facie evidence of the facts stated therein.
4. Where a Contracting State does not fulfil its obligations to submit to the Director the communication referred to in paragraph 2 and this results in a financial loss for the Fund, that Contracting State shall be liable to compensate the Fund for such loss. The Assembly shall, on the recommendation of the Director, decide whether such compensation shall be payable by that Contracting State.
Article 36 ter
1. Subject to paragraph 4 of this Article, the aggregate amount of the annual contributions payable in respect of contributing oil received in a single Contracting State during a calendar year shall not exceed 27.5% of the total amount of annual contributions pursuant to the 1992 Protocol to amend the 1971 Fund Convention, in respect of that calendar year.
2. If the application of the provisions in paragraphs 2 and 3 of Article 12 would result in the aggregate amount of the contributions payable by contributors in a single Contracting State in respect of a given calendar year exceeding 27.5% of the total annual contributions, the contributions payable by all contributors in that State shall be reduced pro rata so that their aggregate contributions equal 27.5% of the total annual contributions to the Fund in respect of that year.
3. If the contributions payable by persons in a given Contracting State shall be reduced pursuant to paragraph 2 of this Article, the contributions payable by persons in all other Contracting States shall be increased pro rata so as to ensure that the total amount of contributions payable by all persons liable to contribute to the Fund in respect of the calendar year in question will reach the total amount of contributions decided by the Assembly.
4. The provisions in paragraphs 1 to 3 of this Article shall operate until the total quantity of contributing oil received in all Contracting States in a calendar year has reached 750 million tons or until a period of 5 years after the date of entry into force of the said 1992 Protocol has elapsed, whichever occurs earlier.
ARTICLE 29
INFORMATION ON CONTRIBUTING OIL
1. Before this Protocol comes into force for a State, that State shall, when depositing an instrument referred to in Article 28, paragraph 5, and annually thereafter at a date to be determined by the Secretary-General of the Organization, communicate to him the name and address of any person who in respect of that State would be liable to contribute to the Fund pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol as well as data on the relevant quantities of contributing oil received by any such person in the territory of that State during the preceding calendar year.
2. During the transitional period, the Director shall, for Parties, communicate annually to the Secretary-General of the Organization data on quantities of contributing oil received by persons liable to contribute to the Fund pursuant to Article 10 of the 1971 Fund Convention as amended by this Protocol.
ARTICLE 33
AMENDMENT OF COMPENSATION LIMITS
1. Upon the request of at least one quarter of the Contracting States, any proposal to amend the limits of amounts of compensation laid down in Article 4, paragraph 4, of the 1971 Fund 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 for consideration at a date at least six months after the date of its circulation.
3. All Contracting States to the 1971 Fund 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 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 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 and changes in the monetary values. It shall also take into account the relationship between the limits in Article 4, paragraph 4, of the 1971 Fund Convention as amended by this Protocol and those in Article V, paragraph 1 of the International Convention on Civil Liability for Oil Pollution Damage, 1992.
6. (a) No amendment of the limits under this Article may be considered before 15 January 1998 nor less than five years from the date of entry into force of a previous amendment under this Article. No amendment under this Article shall be considered before this Protocol has entered into force.
(b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1971 Fund Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from 15 January 1993.
(c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the 1971 Fund 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 quarter of the States that were Contracting States at the time of the adoption of the amendment by the Legal Committee have communicated to the Organization 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 Article 34, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.
10. When an amendment has been adopted by the Legal Committee 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 37
WINDING UP OF THE FUND
1. If this Protocol ceases to be in force, the Fund shall nevertheless:
(a) meet its obligations in respect of any incident occurring before the Protocol ceased to be in force;
(b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under sub-paragraph (a), including expenses for the administration of the Fund necessary for this purpose.
2. The Assembly shall take all appropriate measures to complete the winding up of the Fund including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the Fund.
3. For the purposes of this Article the Fund shall remain a legal person.
SCHEDULE 7(Sections 63 and 65)TEXT OF ARTICLES 1 TO 15, 18, 20, 24, 25 AND 29 OF THE PROTOCOL OF 2003 TO THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 1992
GENERAL PROVISIONS
Article 1
For the purposes of this Protocol:
1. “1992 Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1992;
2. “1992 Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992;
3. “1992 Fund” means the International Oil Pollution Compensation Fund, 1992, established under the 1992 Fund Convention;
4. “Contracting State” means a Contracting State to this Protocol, unless stated otherwise;
5. When provisions of the 1992 Fund Convention are incorporated by reference into this Protocol, “Fund” in that Convention means “Supplementary Fund”, unless stated otherwise;
6. “Ship”, “Person”, “Owner”, “Oil”, “Pollution Damage”, “Preventive Measures” and “Incident” have the same meaning as in article I of the 1992 Liability Convention;
7. “Contributing Oil”, “Unit of Account”, “Ton”, “Guarantor” and “Terminal installation” have the same meaning as in article 1 of the 1992 Fund Convention, unless stated otherwise;
8. “Established claim” means a claim which has been recognised by the 1992 Fund or been accepted as admissible by decision of a competent court binding upon the 1992 Fund not subject to ordinary forms of review and which would have been fully compensated if the limit set out in article 4, paragraph 4, of the 1992 Fund Convention had not been applied to that incident;
9. “Assembly” means the Assembly of the International Oil Pollution Compensation Supplementary Fund, 2003, unless otherwise indicated;
10. “Organization” means the International Maritime Organization;
11. “Secretary-General” means the Secretary-General of the Organization.
Article 2
1. An International Supplementary Fund for compensation for pollution damage, to be named “The International Oil Pollution Compensation Supplementary Fund, 2003” (hereinafter “the Supplementary Fund”), is hereby established.
2. The Supplementary Fund shall in each Contracting State be recognized as a legal person capable under the laws of that State of assuming rights and obligations and of being a party in legal proceedings before the courts of that State. Each Contracting State shall recognize the Director of the Supplementary Fund as the legal representative of the Supplementary Fund.
Article 3
This Protocol shall apply exclusively:
(a) to pollution damage caused:
(i) in the territory, including the territorial sea, of a Contracting State, and
(ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;
(b) to preventive measures, wherever taken, to prevent or minimize such damage.
SUPPLEMENTARY COMPENSATION
Article 4
1. The Supplementary Fund shall pay compensation to any person suffering pollution damage if such person has been unable to obtain full and adequate compensation for an established claim for such damage under the terms of the 1992 Fund Convention, because the total damage exceeds, or there is a risk that it will exceed, the applicable limit of compensation laid down in article 4, paragraph 4, of the 1992 Fund Convention in respect of any one incident.
2. (a) The aggregate amount of compensation payable by the Supplementary Fund under this article shall in respect of any one incident be limited, so that the total sum of that amount together with the amount of compensation actually paid under the 1992 Liability Convention and the 1992 Fund Convention within the scope of application of this Protocol shall not exceed 750 million units of account.
(b) The amount of 750 million units of account mentioned in paragraph 2(a) shall be converted into national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date determined by the Assembly of the 1992 Fund for conversion of the maximum amount payable under the 1992 Liability and 1992 Fund Conventions.
3. Where the amount of established claims against the Supplementary Fund exceeds the aggregate amount of compensation payable under paragraph 2, the amount available shall be distributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Protocol shall be the same for all claimants.
4. The Supplementary Fund shall pay compensation in respect of established claims as defined in article 1, paragraph 8, and only in respect of such claims.
Article 5
The Supplementary Fund shall pay compensation when the Assembly of the 1992 Fund has considered that the total amount of the established claims exceeds, or there is a risk that the total amount of established claims will exceed the aggregate amount of compensation available under article 4, paragraph 4, of the 1992 Fund Convention and that as a consequence the Assembly of the 1992 Fund has decided provisionally or finally that payments will only be made for a proportion of any established claim. The Assembly of the Supplementary Fund shall then decide whether and to what extent the Supplementary Fund shall pay the proportion of any established claim not paid under the 1992 Liability Convention and the 1992 Fund Convention.
Article 6
1. Subject to article 15, paragraphs 2 and 3, rights to compensation against the Supplementary Fund shall be extinguished only if they are extinguished against the 1992 Fund under article 6 of the 1992 Fund Convention.
2. A claim made against the 1992 Fund shall be regarded as a claim made by the same claimant against the Supplementary Fund.
Article 7
1. The provisions of article 7, paragraphs 1, 2, 4, 5 and 6, of the 1992 Fund Convention shall apply to actions for compensation brought against the Supplementary Fund in accordance with article 4, paragraph 1, of this Protocol.
2. Where an action for compensation for pollution damage has been brought before a court competent under article IX of the 1992 Liability Convention against the owner of a ship or his guarantor, such court shall have exclusive jurisdictional competence over any action against the Supplementary Fund for compensation under the provisions of article 4 of this Protocol in respect of the same damage. However, where an action for compensation for pollution damage under the 1992 Liability Convention has been brought before a court in a Contracting State to the 1992 Liability Convention but not to this Protocol, any action against the Supplementary Fund under article 4 of this Protocol shall at the option of the claimant be brought either before a court of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State to this Protocol competent under article IX of the 1992 Liability Convention.
3. Notwithstanding paragraph 1, where an action for compensation for pollution damage against the 1992 Fund has been brought before a court in a Contracting State to the 1992 Fund Convention but not to this Protocol, any related action against the Supplementary Fund shall, at the option of the claimant, be brought either before a court of the State where the Supplementary Fund has its headquarters or before any court of a Contracting State competent under paragraph 1.
Article 8
1. Subject to any decision concerning the distribution referred to in article 4, paragraph 3 of this Protocol, any judgment given against the Supplementary Fund by a court having jurisdiction in accordance with article 7 of this Protocol, shall, when it has become enforceable in the State of origin and is in that State no longer subject to ordinary forms of review, be recognized and enforceable in each Contracting State on the same conditions as are prescribed in article X of the 1992 Liability Convention.
2. A Contracting State may apply other rules for the recognition and enforcement of judgments, provided that their effect is to ensure that judgments are recognised and enforced at least to the same extent as under paragraph 1.
Article 9
1. The Supplementary Fund shall, in respect of any amount of compensation for pollution damage paid by the Supplementary Fund in accordance with article 4, paragraph 1, of this Protocol, acquire by subrogation the rights that the person so compensated may enjoy under the 1992 Liability Convention against the owner or his guarantor.
2. The Supplementary Fund shall acquire by subrogation the rights that the person compensated by it may enjoy under the 1992 Fund Convention against the 1992 Fund.
3. Nothing in this Protocol shall prejudice any right of recourse or subrogation of the Supplementary Fund against persons other than those referred to in the preceding paragraphs. In any event the right of the Supplementary Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation has been paid.
4. Without prejudice to any other rights of subrogation or recourse against the Supplementary Fund which may exist, a Contracting State or agency thereof which has paid compensation for pollution damage in accordance with provisions of national law shall acquire by subrogation the rights which the person so compensated would have enjoyed under this Protocol.
CONTRIBUTIONS
Article 10
1. Annual contributions to the Supplementary Fund shall be made in respect of each Contracting State by any person who, in the calendar year referred to in article 11, paragraph 2(a) or (b), has received in total quantities exceeding 150,000 tons:
(a) in the ports or terminal installations in the territory of that State contributing oil carried by sea to such ports or terminal installations; and
(b) in any installations situated in the territory of that Contracting State contributing oil which has been carried by sea and discharged in a port or terminal installation of a non-Contracting State, provided that contributing oil shall only be taken into account by virtue of this sub-paragraph on first receipt in a Contracting State after its discharge in that non-Contracting State.
2. The provisions of article 10, paragraph 2, of the 1992 Fund Convention shall apply in respect of the obligation to pay contributions to the Supplementary Fund.
Article 11
1. With a view to assessing the amount of annual contributions due, if any, and taking account of the necessity to maintain sufficient liquid funds, the Assembly shall for each calendar year make an estimate in the form of a budget of:
(i) Expenditure
(a) costs and expenses of the administration of the Supplementary Fund in the relevant year and any deficit from operations in preceding years;
(b) payments to be made by the Supplementary Fund in the relevant year for the satisfaction of claims against the Supplementary Fund due under article 4, including repayments on loans previously taken by the Supplementary Fund for the satisfaction of such claims;
(ii) Income
(a) surplus funds from operations in preceding years, including any interest;
(b) annual contributions, if required to balance the budget;
(c) any other income.
2. The Assembly shall decide the total amount of contributions to be levied. On the basis of that decision, the Director of the Supplementary Fund shall, in respect of each Contracting State, calculate for each person referred to in article 10, the amount of that person’s annual contribution:
(a) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(a) on the basis of a fixed sum for each ton of contributing oil received in the relevant State by such person during the preceding calendar year; and
(b) in so far as the contribution is for the satisfaction of payments referred to in paragraph 1(i)(b) on the basis of a fixed sum for each ton of contributing oil received by such person during the calendar year preceding that in which the incident in question occurred, provided that State was a Contracting State to this Protocol at the date of the incident.
3. The sums referred to in paragraph 2 shall be arrived at by dividing the relevant total amount of contributions required by the total amount of contributing oil received in all Contracting States in the relevant year.
4. The annual contribution shall be due on the date to be laid down in the Internal Regulations of the Supplementary Fund. The Assembly may decide on a different date of payment.
5. The Assembly may decide, under conditions to be laid down in the Financial Regulations of the Supplementary Fund, to make transfers between funds received in accordance with paragraph 2(a) and funds received in accordance with paragraph 2(b).
Article 12
1. The provisions of article 13 of the 1992 Fund Convention shall apply to contributions to the Supplementary Fund.
2. A Contracting State itself may assume the obligation to pay contributions to the Supplementary Fund in accordance with the procedure set out in article 14 of the 1992 Fund Convention.
Article 13
1. Contracting States shall communicate to the Director of the Supplementary Fund information on oil receipts in accordance with article 15 of the 1992 Fund Convention provided, however, that communications made to the Director of the 1992 Fund under article 15, paragraph 2, of the 1992 Fund Convention shall be deemed to have been made also under this Protocol.
2. Where a Contracting State does not fulfil its obligations to submit the communication referred to in paragraph 1 and this results in a financial loss for the Supplementary Fund, that Contracting State shall be liable to compensate the Supplementary Fund for such loss. The Assembly shall, on the recommendation of the Director of the Supplementary Fund, decide whether such compensation shall be payable by that Contracting State.
Article 14
1. Notwithstanding article 10, for the purposes of this Protocol there shall be deemed to be a minimum receipt of 1 million tons of contributing oil in each Contracting State.
2. When the aggregate quantity of contributing oil received in a Contracting State is less than 1 million tons, the Contracting State shall assume the obligations that would be incumbent under this Protocol on any person who would be liable to contribute to the Supplementary Fund in respect of oil received within the territory of that State in so far as no liable person exists for the aggregated quantity of oil received.
Article 15
1. If in a Contracting State there is no person meeting the conditions of article 10, that Contracting State shall for the purposes of this Protocol inform the Director of the Supplementary Fund thereof.
2. No compensation shall be paid by the Supplementary Fund for pollution damage in the territory, territorial sea or exclusive economic zone or area determined in accordance with article 3(a)(ii), of this Protocol, of a Contracting State in respect of a given incident or for preventive measures, wherever taken, to prevent or minimize such damage, until the obligations to communicate to the Director of the Supplementary Fund according to article 13, paragraph 1 and paragraph 1 of this article have been complied with in respect of that Contracting State for all years prior to the occurrence of that incident. The Assembly shall determine in the Internal Regulations the circumstances under which a Contracting State shall be considered as having failed to comply with its obligations.
3. Where compensation has been denied temporarily in accord-ance with paragraph 2, compensation shall be denied permanently in respect of that incident if the obligations to communicate to the Director of the Supplementary Fund under article 13, paragraph 1 and paragraph 1 of this article, have not been complied with within one year after the Director of the Supplementary Fund has notified the Contracting State of its failure to report.
4. Any payments of contributions due to the Supplementary Fund shall be set off against compensation due to the debtor, or the debtor’s agents.
Article 18
Transitional Provisions
1. Subject to paragraph 4, the aggregate amount of the annual contributions payable in respect of contributing oil received in a single Contracting State during a calendar year shall not exceed 20% of the total amount of annual contributions pursuant to this Protocol in respect of that calendar year.
2. If the application of the provisions in article 11, paragraphs 2 and 3, would result in the aggregate amount of the contributions payable by contributors in a single Contracting State in respect of a given calendar year exceeding 20% of the total annual contributions, the contributions payable by all contributors in that State shall be reduced pro rata so that their aggregate contributions equal 20% of the total annual contributions to the Supplementary Fund in respect of that year.
3. If the contributions payable by persons in a given Contracting State shall be reduced pursuant to paragraph 2, the contributions payable by persons in all other Contracting States shall be increased pro rata so as to ensure that the total amount of contributions payable by all persons liable to contribute to the Supplementary Fund in respect of the calendar year in question will reach the total amount of contributions decided by the Assembly.
4. The provisions in paragraphs 1 to 3 shall operate until the total quantity of contributing oil received in all Contracting States in a calendar year, including the quantities referred to in article 14, paragraph 1, has reached 1,000 million tons or until a period of 10 years after the date of entry into force of this Protocol has elapsed, whichever occurs earlier.
FINAL CLAUSES
Article 20
Information on Contributing Oil
Before this Protocol comes into force for a State, that State shall, when signing this Protocol in accordance with article 19, paragraph 2(a), or when depositing an instrument referred to in article 19, paragraph 4 of this Protocol, and annually thereafter at a date to be determined by the Secretary-General, communicate to the Secretary-General the name and address of any person who in respect of that State would be liable to contribute to the Supplementary Fund pursuant to article 10 as well as data on the relevant quantities of contributing oil received by any such person in the territory of that State during the preceding calendar year.
Article 24
Amendment of Compensation Limit
1. Upon the request of at least one quarter of the Contracting States, any proposal to amend the limit of the amount of compensation laid down in article 4, paragraph 2 (a), 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 for consideration at a date at least six months after the date of its circulation.
3. All Contracting States to 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 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 shall be present at the time of voting.
5. When acting on a proposal to amend the limit, the Legal Committee shall take into account the experience of incidents and in particular the amount of damage resulting therefrom and changes in the monetary values.
6. (a) No amendments of the limit under this article may be considered before the date of entry into force of this Protocol nor less than three years from the date of entry into force of a previous amendment under this article.
(b) The limit may not be increased so as to exceed an amount which corresponds to the limit laid down in this Protocol increased by six per cent per year calculated on a compound basis from the date when this Protocol is opened for signature to the date on which the Legal Committee’s decision comes into force.
(c) The limit may not be increased so as to exceed an amount which corresponds to the limit laid down in 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 twelve months after the date of notification, unless within that period not less than one quarter of the States that were Contracting States at the time of the adoption of the amendment by the Legal Committee have communicated to the Organization 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 twelve months after its acceptance.
9. All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with article 26, paragraphs 1 and 2, at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force.
10. When an amendment has been adopted by the Legal Committee but the twelve-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 25
Protocols to the 1992 Fund Convention
1. If the limits laid down in the 1992 Fund Convention have been increased by a Protocol thereto, the limit laid down in article 4, paragraph 2(a), may be increased by the same amount by means of the procedure set out in article 24. The provisions of article 24, paragraph 6, shall not apply in such cases.
2. If the procedure referred to in paragraph 1 has been applied, any subsequent amendment of the limit laid down in article 4, paragraph 2, by application of the procedure in article 24 shall, for the purpose of article 24, paragraphs 6(b) and (c), be calculated on the basis of the new limit as increased in accordance with paragraph 1.
Article 29
Winding up of the Supplementary Fund
1. If this Protocol ceases to be in force, the Supplementary Fund shall nevertheless:
(a) meet its obligations in respect of any incident occurring before the Protocol ceased to be in force;
(b) be entitled to exercise its rights to contributions to the extent that these contributions are necessary to meet the obligations under paragraph 1(a), including expenses for the administration of the Supplementary Fund necessary for this purpose.
2. The Assembly shall take all appropriate measures to complete the winding up of the Supplementary Fund, including the distribution in an equitable manner of any remaining assets among those persons who have contributed to the Supplementary Fund.
3. For the purposes of this article the Supplementary Fund shall remain a legal person.
SCHEDULE 8(Section 69)TEXT OF ARTICLES 1 TO 10 OF THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR BUNKER OIL POLLUTION DAMAGE, 2001
ARTICLE 1
DEFINITIONS
For the purposes of this Convention:
1. “Ship” means any seagoing vessel and seaborne craft, of any type whatsoever.
2. “Person” means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.
3. “Shipowner” means the owner, including the registered owner, bareboat charterer, manager and operator of the ship.
4. “Registered owner” means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, “registered owner” shall mean such company.
5. “Bunker oil” means any hydrocarbon mineral oil, including lubricating oil, used or intended to be used for the operation or propulsion of the ship, and any residues of such oil.
6. “Civil Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1992, as amended.
7. “Preventive measures” means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.
8. “Incident” means any occurrence or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage.
9. “Pollution damage” means:
(a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of bunker oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and
(b) the costs of preventive measures and further loss or damage caused by preventive measures.
10. “State of the ship’s registry” means, in relation to a registered ship, the State of registration of the ship and, in relation to an unregistered ship, the State whose flag the ship is entitled to fly.
11. “Gross tonnage” means gross tonnage calculated in accord-ance with the tonnage measurement regulations contained in Annex 1 of the International Convention on Tonnage Measurement of Ships, 1969.
12. “Organization” means the International Maritime Organization.
13. “Secretary-General” means the Secretary-General of the Organization.
ARTICLE 2
SCOPE OF APPLICATION
This Convention shall apply exclusively:
(a) to pollution damage caused:
(i) in the territory, including the territorial sea, of a State Party, and
(ii) in the exclusive economic zone of a State Party, established in accordance with international law, or, if a State Party has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured;
(b) to preventive measures, wherever taken, to prevent or minimize such damage.
ARTICLE 3
LIABILITY OF THE SHIPOWNER
1. Except as provided in paragraphs 3 and 4, the shipowner at the time of an incident shall be liable for pollution damage caused by any bunker oil on board or originating from the ship, provided that, if an incident consists of a series of occurrences having the same origin, the liability shall attach to the shipowner at the time of the first of such occurrences.
2. Where more than one person is liable in accordance with paragraph 1, their liability shall be joint and several.
3. No liability for pollution damage shall attach to the shipowner if the shipowner proves that:
(a) the damage resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or
(b) the damage was wholly caused by an act or omission done with the intent to cause damage by a third party; or
(c) the damage was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.
4. If the shipowner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the shipowner may be exonerated wholly or partially from liability to such person.
5. No claim for compensation for pollution damage shall be made against the shipowner otherwise than in accordance with this Convention.
6. Nothing in this Convention shall prejudice any right of recourse of the shipowner which exists independently of this Convention.
ARTICLE 4
EXCLUSIONS
1. This Convention shall not apply to pollution damage as defined in the Civil Liability Convention, whether or not compensation is payable in respect of it under that Convention.
2. Except as provided in paragraph 3, the provisions of this Convention shall not apply to warships, naval auxiliary or other ships owned or operated by a State and used, for the time being, only on Government non-commercial service.
3. A State Party may decide to apply this Convention to its warships or other ships described in paragraph 2, in which case it shall notify the Secretary-General thereof specifying the terms and conditions of such application.
4. With respect to ships owned by a State Party and used for commercial purposes, each State shall be subject to suit in the jurisdictions set forth in article 9 and shall waive all defences based on its status as a sovereign State.
ARTICLE 5
INCIDENTS INVOLVING TWO OR MORE SHIPS
When an incident involving two or more ships occurs and pollution damage results therefrom, the shipowners of all the ships concerned, unless exonerated under article 3, shall be jointly and severally liable for all such damage which is not reasonably separable.
ARTICLE 6
LIMITATION OF LIABILITY
Nothing in this Convention shall affect the right of the shipowner and the person or persons providing insurance or other financial security to limit liability under any applicable national or international regime, such as the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.
ARTICLE 7
COMPULSORY INSURANCE OR FINANCIAL SECURITY
1. The registered owner of a ship having a gross tonnage greater than 1000 registered in a State Party shall be required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, to cover the liability of the registered owner for pollution damage in an amount equal to the limits of liability under the applicable national or international limitation regime, but in all cases, not exceeding an amount calculated in accordance with the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.
2. A certificate attesting that insurance or other financial security is in force in accordance with the provisions of this Convention shall be issued to each ship after the appropriate authority of a State Party has determined that the requirements of paragraph 1 have been complied with. With respect to a ship registered in a State Party such certificate shall be issued or certified by the appropriate authority of the State of the ship’s registry; with respect to a ship not registered in a State Party it may be issued or certified by the appropriate authority of any State Party. This certificate shall be in the form of the model set out in the annex to this Convention and shall contain the following particulars:
(a) name of ship, distinctive number or letters and port of registry;
(b) name and principal place of business of the registered owner;
(c) IMO ship identification number;
(d) type and duration of security;
(e) name and principal place of business of insurer or other person giving security and, where appropriate, place of business where the insurance or security is established;
(f) period of validity of the certificate which shall not be longer than the period of validity of the insurance or other security.
3. (a) A State Party may authorize either an institution or an organization recognized by it to issue the certificate referred to in paragraph 2. Such institution or organization shall inform that State of the issue of each certificate. In all cases, the State Party shall fully guarantee the completeness and accuracy of the certificate so issued and shall undertake to ensure the necessary arrangements to satisfy this obligation.
(b) A State Party shall notify the Secretary-General of :
(i) the specific responsibilities and conditions of the authority delegated to an institution or organization recognised by it;
(ii) the withdrawal of such authority; and
(iii) the date from which such authority or withdrawal of such authority takes effect.
An authority delegated shall not take effect prior to three months from the date on which notification to that effect was given to the Secretary-General.
(c) The institution or organization authorized to issue certificates in accordance with this paragraph shall, as a minimum, be authorized to withdraw these certificates if the conditions under which they have been issued are not maintained. In all cases the institution or organization shall report such withdrawal to the State on whose behalf the certificate was issued.
4. The certificate shall be in the official language or languages of the issuing State. If the language used is not English, French or Spanish, the text shall include a translation into one of these languages and, where the State so decides, the official language of the State may be omitted.
5. The certificate shall be carried on board the ship and a copy shall be deposited with the authorities who keep the record of the ship’s registry or, if the ship is not registered in a State Party, with the authorities issuing or certifying the certificate.
6. An insurance or other financial security shall not satisfy the requirements of this article if it can cease, for reasons other than the expiry of the period of validity of the insurance or security specified in the certificate under paragraph 2 of this article, before three months have elapsed from the date on which notice of its termination is given to the authorities referred to in paragraph 5 of this article, unless the certificate has been surrendered to these authorities or a new certificate has been issued within the said period. The foregoing provisions shall similarly apply to any modification which results in the insurance or security no longer satisfying the requirements of this article.
7. The State of the ship’s registry shall, subject to the provisions of this article, determine the conditions of issue and validity of the certificate.
8. Nothing in this Convention shall be construed as preventing a State Party from relying on information obtained from other States or the Organization or other international organisations relating to the financial standing of providers of insurance or financial security for the purposes of this Convention. In such cases, the State Party relying on such information is not relieved of its responsibility as a State issuing the certificate required by paragraph 2.
9. Certificates issued or certified under the authority of a State Party shall be accepted by other States Parties for the purposes of this Convention and shall be regarded by other States Parties as having the same force as certificates issued or certified by them even if issued or certified in respect of a ship not registered in a State Party. A State Party may at any time request consultation with the issuing or certifying State should it believe that the insurer or guarantor named in the insurance certificate is not financially capable of meeting the obligations imposed by this Convention.
10. Any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the registered owner’s liability for pollution damage. In such a case the defendant may invoke the defences (other than bankruptcy or winding up of the shipowner) which the shipowner would have been entitled to invoke, including limitation pursuant to article 6. Furthermore, even if the shipowner is not entitled to limitation of liability according to article 6, the defendant may limit liability to an amount equal to the amount of the insurance or other financial security required to be maintained in accordance with paragraph 1. Moreover, the defendant may invoke the defence that the pollution damage resulted from the wilful misconduct of the shipowner, but the defendant shall not invoke any other defence which the defendant might have been entitled to invoke in proceedings brought by the shipowner against the defendant. The defendant shall in any event have the right to require the shipowner to be joined in the proceedings.
11. A State Party shall not permit a ship under its flag to which this article applies to operate at any time, unless a certificate has been issued under paragraphs 2 or 14.
12. Subject to the provisions of this article, each State Party shall ensure, under its national law, that insurance or other security, to the extent specified in paragraph 1, is in force in respect of any ship having a gross tonnage greater than 1000, wherever registered, entering or leaving a port in its territory, or arriving at or leaving an offshore facility in its territorial sea.
13. Notwithstanding the provisions of paragraph 5, a State Party may notify the Secretary-General that, for the purposes of paragraph 12, ships are not required to carry on board or to produce the certificate required by paragraph 2, when entering or leaving ports or arriving at or leaving from offshore facilities in its territory, provided that the State Party which issues the certificate required by paragraph 2 has notified the Secretary-General that it maintains records in an electronic format, accessible to all States Parties, attesting the existence of the certificate and enabling States Parties to discharge their obligations under paragraph 12.
14. If insurance or other financial security is not maintained in respect of a ship owned by a State Party, the provisions of this article relating thereto shall not be applicable to such ship, but the ship shall carry a certificate issued by the appropriate authority of the State of the ship’s registry stating that the ship is owned by that State and that the ship’s liability is covered within the limit prescribed in accordance with paragraph 1. Such a certificate shall follow as closely as possible the model prescribed by paragraph 2.
15. A State may, at the time of ratification, acceptance, approval of, or accession to this Convention, or at any time thereafter, declare that this article does not apply to ships operating exclusively within the area of that State referred to in article 2(a)(i).
ARTICLE 8
TIME LIMITS
Rights to compensation under this Convention shall be extinguished unless an action is brought thereunder within three years from the date when the damage occurred. However, in no case shall an action be brought more than six years from the date of the incident which caused the damage. Where the incident consists of a series of occurrences, the six-years’ period shall run from the date of the first such occurrence.
ARTICLE 9
JURISDICTION
1. Where an incident has caused pollution damage in the territory, including the territorial sea, or in an area referred to in article 2(a)(ii) of one or more States Parties, or preventive measures have been taken to prevent or minimise pollution damage in such territory, including the territorial sea, or in such area, actions for compensation against the shipowner, insurer or other person providing security for the shipowner’s liability may be brought only in the courts of any such States Parties.
2. Reasonable notice of any action taken under paragraph 1 shall be given to each defendant.
3. Each State Party shall ensure that its courts have jurisdiction to entertain actions for compensation under this Convention.
ARTICLE 10
RECOGNITION AND ENFORCEMENT
1. Any judgement given by a Court with jurisdiction in accordance with article 9 which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognised in any State Party, except:
(a) where the judgement was obtained by fraud; or
(b) where the defendant was not given reasonable notice and a fair opportunity to present his or her case.
2. A judgement recognised under paragraph 1 shall be enforceable in each State Party as soon as the formalities required in that State have been complied with. The formalities shall not permit the merits of the case to be re-opened.
ANNEXCERTIFICATE OF INSURANCE OR OTHER FINANCIAL SECURITY IN RESPECT OF CIVIL LIABILITY FOR BUNKER OIL POLLUTION DAMAGE
Issued in accordance with the provisions of article 7 of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
Name of Ship
Distinctive number or letters
IMO Ship Identification Number
Port of registry
Name and full address of the principal place of business of the registered owner
This is to certify that there is in force in respect of the above-named ship a policy of insurance or other financial security satisfying the requirements of article 7 of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.
Type of Security
Duration of Security
Name and address of the insurer(s) and/or guarantor(s)
Name
Address
This certificate is valid until
Issued or certified by the Government of
(Full designation of the State)
OR
The following text should be used when a State Party avails itself of article 7(3)
The present certificate is issued under the authority of the Government of ........ (full designation of the State) by ........ (name of institution or organization)
At
On
(Place)
(Date)
......................................
(Signature and Title of issuing or certifying official)
Explanatory Notes:
1.
If desired, the designation of the State may include a reference to the competent public authority of the country where the Certificate is issued.
2.
If the total amount of security has been furnished by more than one source, the amount of each of them should be indicated.
3.
If security is furnished in several forms, these should be enumerated.
4.
The entry “Duration of Security” must stipulate the date on which such security takes effect.
5.
The entry “Address” of the insurer(s) and/or guarantor(s) must indicate the principal place of business of the insurer(s) and/or guarantor(s). If appropriate, the place of business where the insurance or other security is established shall be indicated.
