2001, c. 6

[Assented to May 10, 2001]

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

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

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

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

“Admiralty Court” means the Federal Court.

“Minister” means the Minister of Transport.

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

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

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

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

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

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

2001, c. 6, s. 5; 2002, c. 8, s. 182.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2001, c. 6, s. 16; 2002, c. 8, s. 182.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Protocol” 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) 2,000,000 units of account; and

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

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

(a) 2,000,000 units of account, and

(b) 175,000 units of account multiplied by

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

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

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

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

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

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

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

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

(a) $2,000,000, and

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

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

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

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

(5) For the purposes of this section,

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

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

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

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

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

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

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

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

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

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

(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.

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

(4) The Admiralty Court may

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) the contract was made in Canada.

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