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Marine Liability Act (S.C. 2001, c. 6)

Full Document:  

Act current to 2022-08-08 and last amended on 2021-04-01. Previous Versions

PART 7Ship-source Oil Pollution Fund (continued)

Liability of Ship-source Oil Pollution Fund (continued)

Expedited Process for Small Claims (continued)

Marginal note:Liability — exception

 Section 106.1 does not apply in respect of actual or anticipated oil pollution damage on or in any place referred to in paragraph 104(a) or (b).

  • 2018, c. 27, s. 725

Marginal note:Administrator’s duties

  •  (1) Within 60 days beginning on the day of receipt of a claim under subsection 106.1(1), the Administrator shall assess the claim.

  • Marginal note:Disallowance of claim

    (2) If the Administrator has reason to suspect that the claim does not meet one or more of the conditions set out in subsection 106.1(1) or does not comply with subsection 106.1(2), the Administrator shall, within the 60-day period, disallow the claim and notify the claimant of its disallowance in writing.

  • Marginal note:Disallowed claim — other rights unaffected

    (3) The disallowance of a claim under subsection (2) does not prevent the claimant from exercising their rights under this Act — other than under section 106.1 — in respect of the loss, damage, costs and expenses for which the disallowed claim was filed.

  • Marginal note:Payment of claim

    (4) If the Administrator does not have reason to suspect that the claim does not meet one or more of the conditions set out in subsection 106.1(1) or does not comply with subsection 106.1(2), the Administrator shall, within the period referred to in subsection (1), direct payment to be made to the claimant of the amount of the claim out of the Ship-source Oil Pollution Fund.

  • Marginal note:Subrogation

    (5) Once the Administrator directs the payment to be made,

    • (a) the claimant is precluded from pursuing any rights — except for economic loss referred to in subsection 103(1) — that they may have had against the Ship-source Oil Pollution Fund or any person in respect of matters referred to in sections 51, 71 and 77, subsections 101(1.1) and 103(1.1), Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in relation to the occurrence to which the payment relates; and

    • (b) the Administrator is, to the extent of the payment to the claimant, subrogated to any of the claimant’s rights for any part of that payment that may be recovered from the owner of the ship, the International Fund, the Supplementary Fund or any other person liable.

  • Marginal note:Recovery of amount of payment

    (6) If the Administrator directs a payment to be made under subsection (4), he or she shall take all reasonable measures to recover the part of the payment referred to in paragraph (5)(b) and, for that purpose, may, among other things, commence an action in the Administrator’s or the claimant’s name, commence a claim against the fund of the owner of a ship established under the Civil Liability Convention and enforce any security provided to or enforceable by the claimant.

  • 2018, c. 27, s. 725

Marginal note:Supporting documents

  •  (1) If the Administrator directs a payment to be made to a claimant under subsection 106.3(4), the Administrator may, within three years after the day of the occurrence in respect of which the payment was directed to be made, request the claimant to provide the Administrator with the supporting documents referred to in subparagraph 106.1(2)(c)(iii).

  • Marginal note:Period

    (2) If the Administrator requests supporting documents under subsection (1), the claimant must provide them to the Administrator within 30 days beginning on the day on which the claimant receives the request or within any longer period agreed to by the Administrator and the claimant.

  • Marginal note:Failure to provide supporting documents

    (3) If the claimant does not provide the Administrator with the supporting documents within the applicable period, the Administrator may give the claimant a notice that they are required to repay to the Administrator the amount of the payment made to them under subsection 106.3(4), in the manner and within the period set out in the notice.

  • 2018, c. 27, s. 725

Marginal note:Post-payment investigation and reassessment

  •  (1) The Administrator may, within three years after the day of the occurrence in respect of which the claim was made, investigate and reassess any claim for which a payment was made under subsection 106.3(4).

  • Marginal note:Administrator’s powers

    (2) For the purpose of investigating and reassessing 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 reassessing a claim, the Administrator may consider only whether the claim meets the conditions set out in subsection 106.1(1).

  • 2018, c. 27, s. 725

Marginal note:Result of investigation and reassessment

  •  (1) As soon as feasible after completing the investigation and reassessment, the Administrator shall give the claimant notice that

    • (a) the Administrator will take no further action in respect of the claimant’s claim; or

    • (b) the claimant is required to pay to the Administrator the overpayment set out in the notice, in the manner and within the period set out in the notice.

  • Marginal note:Overpayments

    (2) The following amounts paid under subsection 106.3(4) constitute an overpayment to the claimant:

    • (a) an amount paid in respect of a claim that the Administrator is satisfied was not for loss, damage, costs or expenses referred to in paragraph 106.1(1)(a);

    • (b) an amount that was paid in respect of a claim that the Administrator is satisfied was not the first one that the claimant has filed in respect of a given occurrence for loss, damage, costs or expenses referred to in that paragraph;

    • (c) an amount that was paid in respect of a claim that the Administrator is satisfied resulted from an act done or omitted to be done by the claimant with intent to cause damage or from the claimant’s negligence; and

    • (d) an amount that was paid in respect of a claim, if the Administrator is satisfied on the evidence that the occurrence that gave rise to the claim was not caused by a ship.

  • Marginal note:Overpayments — limitation or prescription period exceeded

    (3) The Administrator may, in his or her discretion, determine that an amount paid under subsection 106.3(4) constitutes an overpayment to the claimant if the Administrator is satisfied that the amount was paid in respect of a claim that was not filed within the period set out in subsection 106.1(4).

  • Marginal note:Appeal to Admiralty Court

    (4) A claimant may, within 60 days after receiving a notice under paragraph (1)(b), appeal to the Admiralty Court the requirement to pay the overpayment set out in the notice referred to in that paragraph.

  • 2018, c. 27, s. 725

Marginal note:Debts due to Her Majesty

 Unless the claimant under subsection 106.1(1) is a minister of the Crown in right of Canada, all amounts and overpayments payable under subsection 106.4(3) or paragraph 106.6(1)(b), respectively, constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction from the person who is required to pay them.

  • 2018, c. 27, s. 725

Marginal note:Regulations

 The Governor in Council may make regulations

  • (a) respecting claims filed under subsection 106.1(1);

  • (b) fixing an amount for the purposes of paragraph 106.1(1)(b);

  • (c) prescribing information for the purposes of subparagraph 106.1(2)(c)(iv) or paragraph 106.1(2)(d); and

  • (d) fixing an amount for the purposes of subsection 106.1(3).

  • 2018, c. 27, s. 725

Marginal note:Definitions

 In sections 106.1 to 106.6, incident and occurrence have the meaning assigned by the definition incident in Article I of the Civil Liability Convention.

  • 2018, c. 27, s. 725

Claims for Loss of Income

Marginal note:Meaning of terms

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

  • Marginal note: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 or any other provision of this Part may file a claim with the Administrator for that loss or future loss

    • (a) within three years after the day on which the discharge of the oil 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.

  • (6) [Repealed, 2018, c. 27, s. 726]

  • 2001, c. 6, s. 107
  • 2009, c. 21, s. 11
  • 2018, c. 27, s. 726

Marginal note:Administrator’s responsibility

  •  (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.

  • 2001, c. 6, s. 108
  • 2009, c. 21, s. 11

Proceedings Against the Owner of a Ship

Marginal note:Proceedings against owner of ship

  •  (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.

  • 2001, c. 6, s. 109
  • 2009, c. 21, s. 11
 
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