Marine Liability Act

This Act may be cited as the Marine Liability Act.

The definitions in this section apply in this Act.

Admiralty Court means the Federal Court. (Cour d’amirauté)

Minister means the Minister of Transport. (ministre)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A person who commences an action under this Part shall

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

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

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

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

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

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

In this Part, earnings includes freight, passage money and hire.

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

any salvage expenses consequent on that fault or neglect; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The following definitions apply in this Division.

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

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

passenger means

a person carried on board a ship in circumstances described in paragraph 2(a) or (b) of Article 7 of the Convention;

a participant in an adventure tourism activity referred to in subsection 37.1(1);

a person carried on board a vessel propelled manually by paddles or oars and operated for a commercial or public purpose; and

a sail trainee. (passager)

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

unit of account means a special drawing right issued by the International Monetary Fund. (unités de compte)

For the purposes of this Division and Articles 1 to 15 of the Convention,

ship means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes but does not include an air cushion vehicle or a floating platform constructed for the purpose of exploring or exploiting the natural resources or the subsoil of the sea-bed;

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

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

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

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

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

Subject to the other provisions of this Division, Articles 1 to 15 and 18 of the Convention and Articles 8 and 9 of the Protocol have the force of law in Canada.

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.

This Division does not apply to a claim that is the subject of a reservation made by Canada.

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

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

2 000 000 units of account, and

175 000 units of account multiplied by

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

the number of passengers on board the ship, if no Canadian maritime document is required under that Act.

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

2 000 000 units of account, and

175 000 units of account multiplied by

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

the number of persons on board the ship, if no Canadian maritime document is required under that Act.

Subsection (2) does not apply in respect of

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;

a person carried on board a ship other than a ship operated for a commercial or public purpose;

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;

a stowaway, a trespasser or any other person who boards a ship without the consent or knowledge of the master or the owner; or

a person who is a member of a class of persons prescribed under paragraph 34.1(a).

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

$1,500,000 in respect of claims for loss of life or personal injury; and

$750,000 in respect of any other claims.

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.

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

$2,000,000, and

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

For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in the manner described in section 29.1.

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

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

For the purposes of this section,

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

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

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.

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

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

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

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

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

permitting that person to reduce the amount that they are required to pay to the fund by up to an amount equal to the sum of any amounts paid to a claimant before the constitution of the fund in respect of a maritime claim for oil pollution damage caused by oil of any kind or in any form other than oil as defined in Article I of the Civil Liability Convention as defined in subsection 47(1);

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

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

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.

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

The Admiralty Court may

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

determine what form of guarantee it considers to be adequate for the purposes of paragraph 2 of Article 11 of the Convention.

For the purposes of Article 11 of the Convention, interest is payable at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act.

In the case of a maritime claim referred to in paragraph 33(1)(a.1), the person constituting the fund must, as soon as feasible, give notice of the fund’s constitution in

the Canada Gazette;

a newspaper in general circulation in the region where the incident occurred; and

any other appropriate manner in the communities potentially affected by the incident.

Notices given under paragraphs (1)(b) and (c) are to be made accessible to the public for a period of at least 30 days.

The person constituting the fund must, within 15 days after the 30th day of the period referred to in subsection (2), file evidence in the Admiralty Court that the notices have been made accessible to the public for a period of at least 30 days.

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.

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

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

The Governor in Council may make regulations

prescribing classes of persons for the purpose of paragraph 28(3)(d); and

generally for carrying out the purposes and provisions of this Division.

The following definitions apply in this Division.

Convention means the Convention on Limitation of Liability for Maritime Claims, 1976, concluded at London on November 19, 1976, as amended by the Protocol, Articles 1 to 15 of which Convention are set out in Part 1 of Schedule 1. (Convention)

owner, in relation to an air cushion vehicle, means the owner, charterer, manager and operator of an air cushion vehicle. (propriétaire)

passenger means

a person carried on board an air cushion vehicle

under a contract of passenger carriage, or

to accompany, with the consent of the carrier, a vehicle or live animals which are covered by a contract for the carriage of goods; or

a participant in an adventure tourism activity referred to in subsection 37.1(1). (passager)

Protocol means the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976, concluded at London on May 2, 1996. (Protocole)

Subject to the other provisions of this Division, Article 1, paragraphs 1(a) to (c), (e) and (f) and paragraph 2 of Article 2, paragraphs (a), (c) and (e) of Article 3, Articles 4 and 5, paragraphs 2 and 3 of Article 6, paragraph 1 of Article 9 and Articles 10 to 14 of the Convention have the force of law in Canada in relation to air cushion vehicles.

For the purposes of this Division, the provisions of the Convention referred to in subsection (1) are adapted as follows:

a reference to “ship” or “vessel” is to be read as a reference to “air cushion vehicle”;

a reference to “shipowner” is to be read as a reference to “owner”;

paragraph 2 of Article 1 of the Convention is to be read without reference to the word “seagoing”;

the expression “carriage by sea” in paragraph 1(b) of Article 2 of the Convention is to be read as “carriage by water”;

the first reference to “paragraph 1(a)” in paragraph 2 of Article 6 of the Convention is to be read as reference to “subsection 34.4(1), (2) or (4)” of this Act and the second reference to “paragraph 1(a)” is to be read as a reference to “subsections 34.4(1), (2) and (4) in proportion to the amount of the established claims under each of those subsections”;

a reference to “paragraph 1(b)” in paragraphs 2 and 3 of Article 6 of the Convention is to be read as a reference to “subsection 34.4(5)” of this Act;

the reference to “Article 6” in paragraph 1 of Article 9 of the Convention is to be read as a reference to “section 34.4” of this Act;

the reference to “Articles 6 and 7” in paragraph 1 of Article 11 of the Convention is to be read as a reference to “section 34.4” of this Act; and

the reference to “the provisions of paragraphs 1, 2 and 3 of Article 6 and of Article 7” in paragraph 1 of Article 12 of the Convention is to be read as a reference to “section 34.4” of this Act.

In the event of any inconsistency between sections 34.4 to 34.7 of this Act and the provisions of the Convention referred to in subsection (1), those sections prevail to the extent of the inconsistency.

The maximum liability for claims that arise on any distinct occasion for loss of life or personal injury to passengers of an air cushion vehicle of less than 8 000 kg all up weight is the greater of

$3,500,000, and

$300,000 multiplied by

the number of passengers that the air cushion vehicle is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001, or

the number of passengers on board the air cushion vehicle, if no Canadian maritime document is required under that Act.

The maximum liability for claims that arise on any distinct occasion for loss of life or personal injury to persons carried on board an air cushion vehicle of less than 8 000 kg all up weight otherwise than under a contract of passenger carriage is the greater of

$3,500,000, and

$300,000 multiplied by

the number of passengers that the air cushion vehicle is authorized to carry according to any Canadian maritime document required under the Canada Shipping Act, 2001, or

the number of persons on board the air cushion vehicle, if no Canadian maritime document is required under that Act.

Subsection (2) does not apply in respect of

the master of an air cushion vehicle, a member of an air cushion vehicle’s crew — or any other person employed or engaged in any capacity on the business of an air cushion vehicle — when they are carried on board the air cushion vehicle;

a person carried on board an air cushion vehicle that is not operated for a commercial or public purpose;

a person carried on board an air cushion vehicle 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 of the air cushion vehicle could have prevented; or

a stowaway, a trespasser or any other person who boards an air cushion vehicle without the consent or knowledge of the master or the owner of the air cushion vehicle.

The maximum liability for claims that arise on any distinct occasion for loss of life or personal injury involving an air cushion vehicle, other than claims referred to in subsections (1) and (2), is

$1,500,000 for an air cushion vehicle of less than 8 000 kg all up weight;

$5,000,000 for an air cushion vehicle of 8 000 kg or more but less than 13 000 kg all up weight; and

$5,000,000 for an air cushion vehicle of 13 000 kg or more all up weight, plus $40 for each kilogram that exceeds 13 000 kg.

The maximum liability for claims that arise on any distinct occasion involving an air cushion vehicle, other than claims referred to in subsections (1), (2) and (4), is

$750,000 for an air cushion vehicle of less than 8 000 kg all up weight;