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					                            Canadian Maritime Law

                                            William Tetley*




                                                   CASES

19. British Columbia Ferry Services Inc v. Canada Transportation Accident
Investigation & Safety Board (‘‘TSB’’)1
Collision—TSB investigation—refusal to release retrieved data
An ECS (electronic chart system) was recovered from the sunken ferry Queen of the North
by the TSB (Transportation Safety Board) and data from the ECS was provided to the
ferry owner (BC Ferry Services Inc) under a special agreement permitting the ferry owner
to use the data only for its reply to the TSB report. The ferry owner then requested the
right to use the data for other purposes, not detrimental to the TSB, but the TSB refused.
An application was then made to the BC Court of Appeal.
   Decision: The application was unanimously denied.
   Held: The ferry owner had originally chosen to obtain the data by an agreement rather
by pursuing ‘‘a s. 20(2) application’’ (under the Canadian Transportation Accident
Investigation and Safety Board Act 1989). The agreement therefore governed and should
be enforced.
   Per Hall J: There are also ‘‘strong public policy reasons for affording confidentiality to
activities of the respondent to facilitate effective investigation of transport accidents’’.

20. Canadian Pacific Ry Co v. Boutique Jacob Inc2
International multimodal transport—lack of international multimodal Convention
Boutique Jacob Inc (Boutique) contracted with Defendant Pantainer Ltd (Pantainer) to
carry Boutique’s cargo by sea from Hong Kong to Vancouver and then by rail to Montreal.
Pantainer then contracted with OOCL to carry out the entire shipment. Finally OOCL
contracted with CPR to do the rail carriage. The cargo was damaged during rail carriage.
The trial judge noted the permutations and combinations of responsibility that may arise

   * CM, QC Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and
                                                                   o
Commercial Law, Tulane University; Counsel to Langlois Kronstr¨ m Desjardins of Quebec City and Montreal,
Canada (email: william.tetley@mcgill.ca). The author is indebted to Robert C Wilkins and to Mariya Azbel,
attorney, as well as Mark AM Gauthier, General Counsel, Maritime Law Secretariat, Transport Canada Legal
Services, Department of Justice of Canada, for their assistance in the preparation and correction of the text. In
addition, he greatly acknowledges the assistance of the Wainright Fund and of the McGill Law Faculty, in
particular Dean Nicholas Kasirer, who has stuck by his 82-year-old former maritime law teacher, through thick
and thin.
   1. 2008 BCCA 40 (BCCA; Lowry J, Frankel J, Hall J).
   2. 2008 FCA 85; 2008 AMC 1638 (Can FC).

                                                      14
                                CANADIAN MARITIME LAW                                          15

from the multitude of ‘‘terms’’, ‘‘exceptions’’, ‘‘exclusions’’, ‘‘limitations’’, ‘‘rate agree-
ment’’ and ‘‘Himalaya clauses’’ etc, found in the one or more ‘‘bills of lading’’,
‘‘waybills’’, ‘‘express bills’’, ‘‘electronic bills’’ and ‘‘tariffs’’ and the effect of the Canada
Transportation Act 1996, s. 137, which prohibits rail carriers from limiting liability, except
by written agreement signed by the shipper. There was no written agreement between CPR
and Boutique, the shipper; therefore CPR could not limit its liability. The trial judge held
CPR liable, because it could not rely on a limitation clause in the tariff, that clause having
been overcome by a limitation clause in the rate agreement between OOCL and CPR.
Appeal was made to the Federal Court of Appeal.
   Decision: Appeal upheld.
   Held: (1) The Federal Court of Appeal differed in its interpretation of the clauses,
exceptions etc, and especially s. 137. Thus, CPR could limit its liability under the
Himalaya clauses. In particular, Boutique was not a ‘‘shipper’’ within the meaning of s.
137. Considering the definition of a shipper as found by the Quebec Court of Appeal in
Canadian National Ry Co c. Sumitomo Marine & Fire Insurance Co Ltd,3 the shipper was
in fact OOCL as an entity which contracted directly with CPR by way of a confidential
rate contract and handed over the container to CPR in Vancouver. (2) The OOCL bill of
lading contained a Himalaya clause which permitted the CPR to avail itself of the
limitation of liability clause in OOCL’s bill of lading. Therefore the CPR can limit its
liability to OOCL liability, which amounts to $1,432,89.
   Comment: This decision illustrates the vagaries of responsibility for multimodal
transport from one continent to another, when there is no applicable international
multimodal Convention, binding all the carriers.


21. Frugoli v. Services A´ riens des Cantons de l’Est Inc4
                         e
Drowning in Quebec lake—federal or provincial delay for suit—discretion to extend
the delay
Two persons drowned when the boat in which they were passengers capsized on the inland
                                                              e
waters of Lake Louis in the north of the Province of Qu´ bec. Through an error of the
plaintiff’s lawyer, suit was taken after the two-year delay for suit of the maritime law of
Canada had expired but before the three-year prescription of the Quebec Civil Code. The
issue was whether the limitation period was the three-year period prescribed in the Quebec
Civil Code, the two-year period prescribed by Marine Liability Act (MLA), s. 14(2) or the
two-year period prescribed by art 16(2) of the Athens Convention 1974 as enacted by the
MLA. The defendant had chartered and operated the boat and claimed that the suit was
time-barred under the law of Canada. The plaintiff, for its part, relied on the three-year
prescription of Quebec law and argued in alternative that, should Canadian maritime law
apply, the court should in that case use its discretion to suspend or interrupt the delay for
suit granted in certain circumstances under Canadian maritime law.
   Decision: The two-year delay for suit applied and it was not appropriate, in the
circumstances, to suspend or interrupt that delay for suit.


  3. 2007 QCCA 985.
  4. 2007 QC CS 6203 (Queb Superior Ct; Hon Robert Mongeau JSC).
16      INTERNATIONAL MARITIME AND COMMERCIAL LAW YEARBOOK


   Held: (1) Lake Louis was navigable and in consequence Canadian maritime law
applied. The court relies on art 16(2) of the Athens Convention 1974 (the Convention),
incorporated into Canadian maritime law by art 23 of the Marine Liability Act of Canada
(MLA). Therefore the three-year prescriptive period of the Quebec Civil Code (art 2925
cc) did not apply. (2) With regard to the question whether the court has discretion to
suspend or interrupt the delay for suit under the Athens Convention, art 16(3), the court
only has discretion in collision cases under MLA, s. 23. In any event it has not been
sufficiently proven that the error of the plaintiff’s attorney is sufficient reason to suspend
or interrupt the delay for suit in the circumstances.


22. Kent Trade and Finance Inc et al v. JP Morgan Chase Bank et al5
Choice of law—contracts—maritime liens
Suppliers claimed maritime liens against the vessel Lanner, arrested in Halifax, NS. The
first two claims were for necessaries ‘‘subject to the laws of the United States of America’’
other than the State of Washington. The third claim was for necessaries supplied in
Trinidad. The fourth claim was for necessaries supplied in State of Washington. The issue
was whether the suppliers of necessaries to the vessel should be granted maritime liens by
virtue of the US choice-of-law provisions in their supply contracts, which would rank in
priority over the mortgage claim held by the mortgagees.
   A priorities hearing had been conducted in Halifax before Prothonotary Morneau, who,
after a conflict of laws analysis, held that US law did not apply and that the claim of the
vessel’s mortgagee prevailed over the claims of various necessaries suppliers who only
had statutory rights in rem under Canadian law. The Prothonotary’s decision was appealed
to Gauthier J of the Federal Court of Canada, who also found that the suppliers only had
statutory rights in rem, rather than maritime liens. She applied the closest and most
substantial connection test to the transactions and agreed with Morneau P that US law did
not apply to the transactions. Gauthier J’s decision was appealed in turn to the Federal
Court of Appeal of Canada (FCA).
   Decision: Appeal allowed, with a partial dissent by Pelletier J.
   Held: Per Richard CJ, C Michael Ryer J concurring: (1) All the necessaries supplied
in the United States (the first, second and fourth claims) were maritime liens under US
maritime law and therefore ranked ahead of the mortgage under that law. The choice of
law clause in the supply contracts should generally govern maritime transactions,
including the rights which may arise from such transactions; and in this case US law has
been explicitly chosen to govern the supply contracts for claims one and two. The fourth
claim, under the CP3500 International Ltd contract, contained no explicit choice of law
clause, included an arbitration clause but calling for the law of State of Washington, which
was indicative of the proper law of the contract. Thus US law applied to CP3500 as well.
US law would recognize a maritime lien for necessaries where, under a supply contract
governed by US law, a foreign supplier provides goods or services to foreign vessels in
a foreign port (relying particularly on the latest US Court of Appeals decision on choice
of law: Trans-Tec Asia v. M/V Harmony Container et al6). (2) The necessaries supplied in

  5. [2008] FCA 399; 2009 AMC 129 (Can FC).
  6. (2008) 518 F.3d 1120; 2008 AMC 684 (9th Cir).
                                CANADIAN MARITIME LAW                                     17

Trinidad, however, were subject to Canadian maritime law and were granted (under
Canadian law) only the status of a statutory right in rem, which ranks after the
mortgage.
   Per JD Pelletier J, dissenting in part: (1) The first two claims for necessaries supplied
in the US (other than the State of Washington) are subject to Canadian law (relying not
on Trans-Tec Asia, but on an earlier US Court of Appeal decision, Trinidad Foundry,7
which differs from Trans-Tec Asia). As a result, the law of Canada should apply and the
two claims should be ranked after the mortgage should be dismissed with costs. (2)
(Agreeing with the majority) The necessaries supplied in Trinidad they ranked after the
mortgage. (3) The fourth claimant (CP3500 International Ltd) has a different choice of law
clause, which provides for the laws of Washington State. Since Washington State is in the
Ninth Circuit, Trans-Tec Asia, a decision of the Ninth Circuit, should apply. Therefore,
CP3500’s claim should rank ahead of the mortgage and the appeal should be allowed with
costs.

23. Locher Evers Intl v. Canada Garlic Distribution Inc8
Freight due—set-off—CIFFA terms—jurisdiction
Freight was claimed for a shipment carried from China to Toronto, Canada, under an
agreement which invoked the Canadian International Freight Forwarders (CIFFA) terms.
The defendant as its principal defence, claimed set-off due to damage to cargoes attributed
to the plaintiff’s alleged breaches of contract, as well as the secondary defence of lack of
jurisdiction of the Federal Court to adjudicate the claim.
   Decision: The two defences were dismissed.
   Held: (1) CIFFA terms, at para 17, include a non set-off clause, which the court
upholds. (2) As to the secondary defence of lack of jurisdiction, it is deemed to have been
made too late. In any event, ‘‘a claim for ocean freight squarely falls within the grant of
jurisdiction of s. 22 of the Federal Courts Act, RSC 1985, c. F-7.’’


24. McIntosh v. Royal & Sun Alliance9
Breach of warranty—liability of insure—liability of broker
In 2002, McIntosh (plaintiff) was advised by his broker (co-defendant) that insurance was
not available for the commercial use of his power boat, which boat, in consequence, was
insured for pleasure with Royal & Sun Alliance (defendant Royal). The plaintiff persisted,
however, and incorporated a company, Offshore Performance Tours, and promoted the
boat on various occasions. In 2003, after the pleasure boat policy was renewed, McIntosh
again conducted promotions of the boat and, in the autumn of 2003, the boat was stolen,
while out of the water on a trailer at the plaintiff’s cottage. The plaintiff claimed that in
2002 and 2003 he had never taken paying passengers, but Royal denied coverage on
grounds of breach of the pleasure warranty. McIntosh took suit against both Royal and the
broker.
  7. 1992 AMC 2636 (11th Cir).
  8. 2008 FC 319 (Can FC: James K Huguessen J).
  9. 2007 FC 23 (Can FC).
18      INTERNATIONAL MARITIME AND COMMERCIAL LAW YEARBOOK


  Decision: The claims against Royal and the broker are dismissed.
  Held: (1) As a question of fact, there had been paying customers and that the warranty
was a true warranty and had been breached, thus relieving Royal of liability. (2) The
broker had not acted with appropriate care, when it failed to point out that the warranty
would be breached, not only when paying customers were carried, but when the charter
business was promoted. Nevertheless, there being no causal connection between the
breach and the damages suffered by the plaintiff as a result of the theft, the case against
the broker is also dismissed.


25. Mitsui OSK Lines Ltd et al v. Mazda Canada Inc10
Jurisdiction in Canada can be overcome by forum non conveniens
Three different shipments of automobiles were carried from Japan to New Westminster,
BC, and were lost over the side before discharge, when the ship listed 60 degrees. The trial
judge, Harrington J,11 had held that there was not sufficient evidence of a more convenient
forum other than Canada and refused a motion for forum non conveniens. Appeal was
taken before the Federal Court of Appeal.
   Decision: The appeal was upheld. Despite the clear-cut case of jurisdiction in Canada,
jurisdiction was refused on the grounds of forum non conveniens.
   Held: Japan is a more convenient forum, particularly because at least three actions
relating to the case have been launched in Japan: (i) an action by the appellant for a
declaration of non-liability which includes as parties Mazda Canada and Mazda USA; (ii)
a civil action being pursued by Mazda USA in Japan for its losses, which action was
consolidated with the first one; (iii) a claim on behalf of the underwriters of the 110 Isuzu
trucks that were lost was launched in Japan. As a result, two (probably three) consolidated
actions would be conducted in Japan dealing with the same issues. Moreover, the
respondent was originally made a party to the Mazda USA action in Japan but then, for
its own reasons, withdrew its claim in favour of attempting to proceed in Canada. This
important fact, which had not been brought to the attention of Harrington J. at first
instance, weighed heavily in favour of Japan’s having jurisdiction. Japan was also a more
convenient forum because most witnesses were in Japan, their language was Japanese and
the law of the claims was Japanese. Finally, the vessel was inspected, loaded and departed
from Japan and Japan was the jurisdiction contracted for by the parties. It is also noted that
the Japanese language would be a benefit to claimants at trial.


26. R v. Cloutier12
Pleasure craft—pilot—collision
At about 6:00am on 11 August 2004, a 14.4-metre pleasure craft (sailboat with enclosed
steering cabin) was proceeding under power in the confined waters of the St Augustin
Passage of the St Lawrence River (off St-Nicolas). The craft was struck by the
202.5-metre container ship Canada Senator, with a loading capacity of 31,160 tonnes,
  10. 2008 AMC 2035; 2008 FCA 219 (Can FC: Linden, Sharlow and Trudel JJ A).
  11. 2007 AMC 2243.
  12. 2007 QC CQ 13533 (Queb Ct: Hon. Carol St Cyr JCQ).
                                CANADIAN MARITIME LAW                                    19

proceeding at 28 knots. The pleasure craft was proceeding erratically from side to side of
the channel according to an independent witness and sank immediately with the result that
two of its four passengers died. Cloutier, the pilot of the container ship, was charged with
failing to comply with the Collision Regulations CRC, c. 1416, enacted under s. 562.11
of the Canada Shipping Act RSC (1985), c. S-9.
   Decision: The pleasure craft was held fully responsible for the collision and the
deaths.
   Held: The pilot of the freighter Canada Senator acted with the diligence expected of a
good seaman as required under the Collision Regulations of Canada.
   Comment: This case illustrates the danger of amateurs in pleasure craft navigating in
enclosed waters of an international waterway such as the confined waters of the St
Lawrence Seaway.

27. R v. Kapp13
Aboriginal fishing rights—affirmative action programmes—relationship between
s. 15(1) and s. 15(2) of the Charter of Rights and Freedoms of Canada
As part of the Aboriginal Fisheries Strategy, the Government of Canada granted to three
aboriginal bands a 24-hour communal fishing licence to fish salmon off the mouth of the
Fraser River in British Columbia. A group of commercial fishermen (mainly non-
aboriginal) were excluded by the licence. They nevertheless participated in a fishing
protest during the 24-hour period and were charged with fishing at a prohibited time. The
trial judge held that the licence was a breach of equality rights under the Canadian Charter
of Rights and Freedoms, s. 15(1), which stipulates that ‘‘every individual is equal before
and under the law and has the right to the equal protection and equal benefit of the law
without discrimination’’. The Court of Appeal concurred. The fishermen appealed to the
Supreme Court of Canada.
   Decision: The licence falls within the terms of s. 15(2) of the Charter. The legislation
is therefore valid and the appeal is dismissed.
   Held: The focus of s. 15(2) is to enable the government to combat discrimination by
developing programmes aimed at helping disadvantaged groups under s. 15(1).
   Per curiam: ‘‘[T]he disadvantage of Aboriginal people is indisputable’’ because of ‘‘the
legacy of stereotyping and prejudice against Aboriginal peoples.’’

28. R v. MacKay14
Criminal negligence—dangerous operation of a vessel
A passenger in a pleasure craft was killed and another injured when the craft proceeding
at unsafe speed struck a buoy in Halifax harbour. The position of the buoy, however, had
shifted, unknown to MacKay, the accused and owner/operator of the craft.
   Decision: Not guilty of criminal negligence, but guilty of the lesser offence of
dangerous operation of a vessel.

  13. [2008] 2 SCR 483 (Can SC: McLachlan CJ, Abella and Bastarache JJ).
  14. 2008 NS PC 8 (NS Provincial Ct: Judge Castor HF Williams).
20     INTERNATIONAL MARITIME AND COMMERCIAL LAW YEARBOOK


   Held: The position of the buoy had been moved without notice and MacKay is deemed
to have had a reasonable belief that he was proceeding in a safe direction. Responsibility
for criminal negligence is defined as a marked departure from the standard of the
reasonable person and a wanton and reckless disregard for the safety of others. MacKay
is therefore not guilty of criminal negligence, under the Criminal Code of Canada,
ss 220(b) and 221. However, MacKay is guilty of the dangerous operation of a vessel
causing bodily harm (under s. 249(3)) and death (under s. 249(4)).


29. Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd et al15
Definition of ship—maritime or municipal law?
An oil tank barge attached to a marina had been converted into a two-storied floating
structure by the marina. The issue was whether the floating structure was a building and
as such subject to a municipal land bylaw limiting the allowable size for buildings and
structures, or whether the barge was a ship and as such subject to the laws of Canada.
   Decision: The barge was not being used for navigation and therefore was not a ship. It
was therefore subject to municipal law.
   Held: The oil tank barge was not being used for shipping and navigation and therefore
was a building or structure subject to municipal law. This conclusion is deemed to
overcome any argument raised by the trial judge and the minority judges in appeal as to:
the doctrine of paramountcy, ie federal authority over provincial, as there was no direct
collision between federal and provincial legislation in this case, as required by the
paramountcy doctrine; or the doctrine of interjurisdictional immunity, because the floating
structure was not a ship and the federal power over navigation was not engaged.

30. Timberwest Forest Corp v. Pacific Link Ocean Service Corp et al16
Application of Hague-Visby Rules—on deck carriage—waiver of subrogation clause
validity and beneficiaries
Logs were carried on deck from the Fraser River, BC, Canada to Eureka, California, USA.
The majority of the logs were lost during shipment. No bill of lading had been issued, but
the contract contemplated that one could be issued. The first question was whether the
shipment of logs on deck was a shipment of ‘‘goods’’ under the Hague-Visby Rules, which
exclude the application of Rules to the carriage on deck. The second question was the
validity under the Hague-Visby Rules of the waiver of a subrogation clause in the
plaintiff’s insurance policy and ability of the defendants other than Pacific Link Ocean
Service, whom the Pacific Link has subcontracted, to rely on it.
   Decision: The cargo was not ‘‘goods’’ as defined in the Hague-Visby Rules. Therefore,
those Rules did not apply. The waiver of subrogation clause was valid and could be relied
on by other defendants.
   Held: (1) The Hague-Visby Rules did not apply because the bill of lading, if issued,
would have stated that the entire shipment was being carried on deck, as was in fact the

 15. 2008 BC CA 544 (Low, Smith and Chiasson JJ); affg 2007 BC SC 892.
 16. 2008 FC 801.
                                 CANADIAN MARITIME LAW                                    21

case. (2) The waiver of subrogation clause was intended to cover all those who were party
to the contract of carriage and benefited such parties as time charterers and tug and barge
operators, who fell within the term of ‘‘carrier’’. It could therefore be relied on by other
defendants (time charterers), with whom the contracting carrier Pacific Link had entered
into time charters for the tug and barge. This decision would be in compliance with
commercial reality, justice and fairness, which require that servants, agents and subcon-
tractors should benefit from contractual clauses stipulated for their benefit.


31. Vogelsang v. Vandale17
Collision—responsibility of give-way vessel—lack of proper lookout by both vessel—no
contributory negligence
Two pleasure craft collided on Madge Lake in Saskatchewan, Canada, when the defendant
Vandale’s give-way craft on a western course struck the plaintiff’s craft amidships, while
on a northern course. Both craft were proceeding at a safe speed, but neither had been
keeping a proper lookout, or any lookout at all. Vandale was charged in the Criminal Court
and was found guilty of violating the Collision Regulations of Canada, in particular Rule
15(a), which stipulates that, in a crossing situation when there is risk of collision between
two power-driven vessels, the vessel which has the other on her starboard side must give
way. The present action was a civil suit for physical damages suffered by Grant Vogelsang
and his three-year-old son Cole Vogelsang. The defendant, Vandale, for his part, claimed
that the contributory negligence of the plaintiff, Grant Vogelsang, for failing to keep a
proper lookout, should reduce any damages awarded.
   Decision: The court awards around $6,800 to the plaintiff, Grant Vogelsand, $5,000 of
which is for pain and suffering, and $500 to his son, Cole Vogelsand, for pain and
suffering.
   Held: (1) The defendant’s vessel was fully responsible, having violated Rules 15 and 16
of the Collision Regulations. (2) The court refused to order contributory negligence. On
the facts, the Contributory Negligence Act does not apply in this case, despite the
defendant’s failure to keep a proper lookout.
   Comment: The defence of contributory negligence was rejected, presumably on the
ground that one contributory negligence ruled out the other.


                                        LEGISLATION

32. C-10 An Act to implement certain provisions of the budget tabled in
Parliament on 27 January 2009 and related fiscal measures, Statutes of Canada,
c. 218
Bill C-10 received Royal Assent and came into force on 12 March 2009. The Act, in Part
7, contains amendments to the Navigable Waters Protection Act, RSC 1985, c. N-22. Part
7 amends Part I of the Navigable Waters Protection Act to create a tiered approval process

  17. 2008 SK PC 1370 (Sask Provincial Ct; R Green J).
  18. Formerly Bill C-10.
22      INTERNATIONAL MARITIME AND COMMERCIAL LAW YEARBOOK


for works in order to streamline the approval process and to exclude certain classes of
works and works on certain classes of navigable waters from the approval process. This
Part further amends Part I of the Act to clarify the scope of the application of that Part to
works owned or previously owned by the Crown, to provide for the application of the Act
to bridges over the St Lawrence River and to add certain regulation-making powers. Part
7 also amends the Act to clarify the provisions related to obstacles and obstructions to
navigation. The Act is also amended by adding administration and enforcement powers,
consolidating all offence provisions, increasing fines and requiring a review of the Act
within five years of the amendments coming into force.


33. C-23 An Act to amend the Canada Marine Act, the Canada Transportation
Act, the Pilotage Act and other Acts inconsequence, Statutes of Canada, c. 2119
An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act
and other Acts in consequence. The Act received Royal Assent on 18 June 2008 and
entered into force on 1 August 2008, except for s. 64. The Act deals largely with the
financing of Canadian Port Authorities (PCAs), their borrowing powers and their
amalgamations. Under the Act, the PCAs would now be permitted to apply for federal
contribution funding related to infrastructure, environmental sustainability and the
implementation of security measures. The Act also incorporates amendments related to
governance and the appointment of directors of port authorities and introduces Admin-
istrative Monetary Penalties for the better enforcement of minor statutory violations.


34. S-215 Heritage Lighthouse Protection Act, Statutes of Canada, c. 1620
On 28 May 2008, the Act providing for the protection of heritage lighthouses, received
Royal Assent. The bill designates federally-owned heritage lighthouses and requires
public consultation before their alteration, sale or proposed demolition. It also requires
that designated lighthouses be maintained to heritage building conservation standards. The
Act is expected to come into force in 2010.


                                     LAW REFORM

35. C-7 An Act to amend the Marine Liability Act and the Federal Courts Act
and to make consequential amendments to other Acts
Bill C-7 was introduced in first reading on 29 January 2009 and adopted in second reading
as of 30 March 2009. It is now at Committee stage, with hearings before the Standing
Committee on Transport, Infrastructure and Communities. The Act would permit Canada
to become party to the Supplementary Fund to the International Oil Pollution Compensa-
tion Funds (IOPC Funds) and to the International Convention on Civil Liability for
Bunker Oil Pollution Damage 2001 (Bunkers Pollution Convention). According to
Transport Canada officials, acceding to the International Convention on the Establishment

  19. Formerly Bill C-23.
  20. Formerly Bill S-215.
                              CANADIAN MARITIME LAW                                       23

of an International Fund for Compensation for Oil Pollution Damage 1992 (Supplemen-
tary Fund Protocol) will increase the current level of compensation for oil pollution
damage caused by tankers in Canada from about $405 million to $1.5 billion per incident.
Both the Bunkers Pollution Convention and the Supplementary Fund Protocol will be
ratified and applied in Canada once Bill C-7 has been enacted to amend the Marine
Liability Act. Bill 7 also clarifies the maximum liability for maritime claims regarding the
loss of life or personal injuries to passengers of ships in provisions for Limitation of
Liability for Maritime Claims in the Marine Liability Act (MLA) and excludes adventure
tourism from the carriage of passenger provisions of the MLA. The Bill gives the
Governor in Council the power to change, by regulation, the liability limits set out in
accordance with the Civil Liability Convention and International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992,
as amended by the Resolution of 2000 (Fund Convention), to which Canada is party,
which will allow to keep the limits of liability up to date without the need to enact
amending legislation each time they are changed.
   The Bill also amends the MLA with respect to governance of the Ship-Source Oil
Pollution Fund (administered now by Alfred Popp QC). In addition, it would create a
maritime lien against foreign vessels (but not against Canadian vessels) as security for
unpaid invoices to Canadian ship suppliers who provide goods, services and equipment or
repairs to vessels in Canada. The Bill would also establish a uniform three-year time
limitation for all maritime claims except those already governed by another limitation
period (eg the two-year limitation period for collision, salvage and passenger claims under
existing maritime law statutes and international maritime law Conventions binding
Canada). Moreover, Bill C–7 adjusts the wording of the sister-ship arrest provision of
s. 43(8), to make the English version agree with the French text.


36. C-16 An Act to amend certain Acts that relate to the environment and to
enact provisions respecting the enforcement of certain Acts that relate to the
environment
Bill C-16 was introduced in first reading on 4 March 2009. The Bill amends certain
enforcement, offence, penalty and sentencing provisions of nine of the Canadian Acts
relating to environmental protection and conservation: Antarctic Environmental Protec-
tion Act; Canada National Marine Conservation Areas Act; Canada National Parks Act;
Canada Wildlife Act; Canadian Environmental Protection Act 1999; International River
Improvements Act; Migratory Birds Convention Act 1994; Saguenay-St Lawrence Marine
Park Act; and Wild Animal and Plant Protection and Regulation of International and
Interprovincial Trade Act. The Act amends penalty provisions of these Acts by
establishing and specifying maximum and minimum ranges of fines, doubling the fine
amounts for second and subsequent offenders, and by specifying aggravating factors that,
if associated with an offence, contribute to higher fines. The Act also expands the power
of the courts to make additional orders as necessary. It also introduces amendments to the
Acts making the duty and liability of officers and owners of corporations, shipmasters and
engineers consistent between the Acts. Bill C-16 adds to each of the Acts a requirement
that details of convictions of corporations be made available to the public and that all fines
collected be credited to the Environmental Damages Fund and available for environmental
24     INTERNATIONAL MARITIME AND COMMERCIAL LAW YEARBOOK


projects. The Act also creates the Environmental Violations Administrative Monetary
Penalties Act which establishes an administrative monetary penalty scheme applicable to
the Acts listed above as well as to the Canada Water Act. The Bill is currently with the
Standing Committee on Environment and Sustainable Development.


                          INTERNATIONAL TREATIES

37. Limitation of Liability for Maritime Claims 1976 (Convention on)
On 9 May 2008, Canada officially ratified the Convention on the Limitation of Liability
for Maritime Claims 1976, as amended by its Protocol of 1996, which then came into
force three months later, on 7 August 2008. Although Canada had already given these
instruments the force of law by the Marine Liability Act, ratification will presumably
assist Canadian shipowners and claimants, who will now be able to rely on the provisions
of the Convention and its Protocol when dealing with limitation proceedings in foreign
States. Previously, foreign courts were not bound to apply the Convention in a limitation
action involving Canadian parties, absent a treaty between Canada and those countries.
The ratification by Canada includes a reservation, permitted under the Convention, not to
apply the limitation of liability to wreck removal claims under art 2.1(d) of the
Convention.

				
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