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Bill S-4

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	1st Session, 36th Parliament, 46 Elizabeth II, 1997-98
	The Senate of Canada
	BILL S-4
	An Act to amend the Canada Shipping Act (maritime liability)
	Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. S-9; R.S., cc. 27, 31 (1st Supp.), cc. 1, 27 (2nd Supp.), c. 6 (3rd Supp.), c. 40 (4th Supp.); 1989, cc. 3, 17; 1990, cc. 16, 17, 44; 1991, c. 24; 1992, cc. 1, 27, 31, 51; 1993, c. 36; 1994, cc. 24, 41; 1995, cc. 1, 5; 1996, cc. 21, 31; 1997, c. 1	CANADA SHIPPING ACT
	*1. Subsection 565(4) of the Canada Shipping Act* is repealed.**
	2. The heading before section 574 and sections 574 to 584 of the Act are replaced by the following:
	Limitation of Liability for Maritime Claims
Definitions	574. The definitions in this section apply in this section and in sections 575 to 583.
``Convention' ' « Convention »	``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 the Convention are set out in Part I of Schedule VI and Article 18 of the Convention is set out in Part II of that Schedule.
``Protocol'' « Protocole »	``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 the Protocol are set out in Part II of Schedule VI.
Convention in force	575. (1) Articles 1 to 6 and 8 to 15 of the Convention have the force of law in Canada.
Article 7 in force	(2) Article 7 of the Convention has the force of law in Canada on the coming into force of section 578.
Inconsistency	(3) In the event of any inconsistency between sections 576 to 583 and Articles 1 to 15 of the Convention, those sections prevail to the extent of the inconsistency.
Meaning of ``carriage by sea''	576. (1) For the purposes of this section and sections 574, 575 and 577 to 583, the expression ``carriage by sea'' in paragraph 1(b) of Article 2 of the Convention means ``carriage by water''.
State Party to the Convention	(2) For the purposes of Part I of Schedule VI, Canada is a State Party to the Convention.
Definitions	(3) The definitions in this subsection apply in this section, sections 577 to 583 and Schedule VI.
``ship'' « navire »	``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
	(a) a ship in the process of construction from the time that it is capable of floating; and
	(b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up.
	It 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.
``shipowner'' « proprié- taire de navire »	``shipowner'' means an owner, charterer, manager or operator of a ship, whether seagoing or not, and includes any other person having an interest in or possession of a ship from and including the launching of it.
Ships less than 300 tons	577. (1) The maximum liability of a shipowner for claims arising on any distinct occasion involving a ship with a tonnage of less than 300 tons, other than claims mentioned in section 578, is
	(a) in respect of claims for loss of life or personal injury, $1,000,000; and
	(b) in respect of any other claims, $500,000.
Calculation of tonnage	(2) For the purposes of subsection (1), a ship's tonnage is the gross tonnage 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.
Transitional	(3) Until the coming into force of section 578,
	(a) subsection (1) shall be read without reference to the expression ``other than claims mentioned in section 578''; and
	(b) Article 6 of the Convention shall be read without reference to the expression ``other than those mentioned in article 7''.
Passenger claims where no certificate	578. (1) The maximum liability of a shipowner for claims arising 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 is the greater of
	(a) two million 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.
Passenger claims where no contract of carriage	(2) Notwithstanding Article 6 of the Convention, the maximum liability of a shipowner for claims arising on any distinct occasion for loss of life or personal injury to persons on a ship for which a certificate is required under Part V, where those persons are not carried under a contract of passenger carriage, is 175,000 units of account multiplied by the number of passengers the ship is authorized to carry according to the ship's certificate.
Exception	(3) Subsection (2) does not apply in respect of liability to a person who is the master of the ship, a member of the crew of the ship or any other person employed or engaged in any capacity on board the ship on the business of the ship.
Definition of ``passenger''	(4) In subsection (1), ``passenger'' means a person carried on a ship in the circumstances set out in paragraphs 2(a) and (b) of Article 7 of the Convention.
Definition of ``unit of account''	(5) In subsections (1) and (2), ``unit of account'' means a special drawing right issued by the International Monetary Fund.
Conversion	(6) For the purposes of subsections (1) and (2), the conversion of units of account into the national currency is made in accordance with paragraph 1 of Article 8 of the Convention.
Amendment of limits	579. (1) On the recommendation of the Minister, the Governor in Council may, by order, declare that any amendments to the limits specified in paragraph 1 of Article 6 or 7 of the Convention made in accordance with Article 8 of the Protocol have the force of law in Canada.
Amendment of sections 577, 578 and 583	(2) On the recommendation of the Minister, the Governor in Council may, by order, amend the limits of liability set out in sections 577, 578 and 583.
Jurisdiction of Admiralty Court	580. (1) The Admiralty Court has exclusive jurisdiction with respect to any matter in relation to the constitution and distribution of a limitation fund pursuant to Articles 11 to 13 of the Convention.
Right to assert limitation defence	(2) Any person against whom any liability that is limited by section 577, 578 or 583 or paragraph 1 of Article 6 or 7 of the Convention is alleged or apprehended may assert their 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.
Powers of Admiralty Court	581. (1) Where a claim is made or apprehended against a person in respect of a liability that is limited by section 577 or 578 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 in any other court, tribunal or other authority, may take any steps it considers appropriate, including, without limiting the generality of the foregoing,
	(a) determining the amount of the liability and providing for the constitution and distribution of a fund pursuant to Articles 11 and 12, respectively, of the Convention, in relation to the liability;
	(b) proceeding in such manner as to make interested persons parties to the proceedings, excluding any claimants who do not make a claim within a certain time and requiring security from the person claiming limitation of liability or other interested person and the payment of any costs, as the court considers appropriate; and
	(c) enjoining any person from commencing or continuing proceedings before any court, tribunal or other authority other than the Admiralty Court in relation to the same subject-matter.
Court may postpone distribution	(2) In providing for the distribution of a fund under paragraph (1)(a) in relation to a liability, the Admiralty Court, having regard to any claim that may subsequently be established before a court, tribunal or other authority outside Canada in respect of that liability, may postpone the distribution of any part of the fund that it considers appropriate.
Lien and other rights	(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.
Procedural matters	(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.
Interest	(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 in effect from time to time.
Release of ships, etc.	582. (1) Where a ship or other property is released pursuant to paragraph 2 of Article 13 of the Convention, the person who applies for the release is deemed, in any case other than a case in which a fund has been constituted in a place described in paragraphs 2(a) to (d) of that Article, to have submitted to the jurisdiction of the court that ordered the release for the purpose of determining the claim.
Limitation fund in state other than Canada	(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 that is constituted in a country other than Canada unless the court is satisfied that the country is a state that is a party to the Convention.
Limitation of liability of owners of docks, canals and ports	583. (1) The maximum liability of an owner of a dock, canal or port for a claim arising on any distinct occasion for any loss or damage caused to a ship or ships, or to any goods, merchandise or other things whatsoever on board a ship or ships is the greater of
	(a) $2,000,000, and
	(b) the amount calculated by multiplying $1,000 by the number of tons of the tonnage of the largest ship that, at the time of the loss or damage, is, or, within a period of five years before that time, had been, within the area of that dock, canal or port over which the owner had control or management.
Calculation of tonnage	(2) For the purposes of subsection (1), a ship's tonnage is the gross tonnage calculated in the manner set out in subsection 577(2).
Conduct barring limitation	(3) This section does not apply if it is proved that the loss or damage resulted from the personal act or omission of the owner committed with intent to cause the loss or damage or recklessly and with knowledge that the loss or damage would probably result.
Application	(4) This section applies to any person for whose act or omission the owner is responsible.
Definitions	(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 any dock, canal or port, and any ship repairer using the dock, canal or port, as the case may be.
	3. Section 587 of the Act is repealed.
R.S., c. 6 (3rd Supp.), s. 84	4. The definition ``ship'' in section 654 of the Act is replaced by the following:
``ship'' « navire »	``ship'' includes any description of vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion;
R.S., c. 6 (3rd Supp.), s. 84; 1993, c. 36, s. 12	5. (1) The definitions ``Civil Liability Convention'', ``Convention ship'', ``Fund Convention'', ``owner'' and ``ship'' in section 673 of the Act are replaced by the following:
``Civil Liability Convention'' « Conven- tion sur la responsabilité civile »	``Civil Liability Convention'' means the International Convention on Civil Liability for Oil Pollution Damage, concluded at Brussels on November 29, 1969, as amended by the Protocol of 1976, concluded at London on November 19, 1976, and the Protocol of 1992, concluded at London on November 27, 1992;
``Convention ship'' « navire soumis à l'application de la Convention »	``Convention ship'' means a sea-going ship, wherever registered,
	(a) carrying, in bulk as cargo, crude oil, fuel oil, heavy diesel oil, lubricating oil or any other persistent hydrocarbon mineral oil, or
	(b) on any voyage following any such carriage of such an oil, unless it is proved that there is no residue of the oil on board;
``Fund Convention'' « Conven- tion sur le Fonds interna- tional »	``Fund Convention'' means the International Convention on the Establishment of the International Fund for Compensation for Oil Pollution Damage, concluded at Brussels on December 18, 1971, as amended by the Protocol of 1976, concluded at London on November 19, 1976, and the Protocol of 1992, concluded at London on November 27, 1992;
``owner'' « proprié- taire »	``owner'' of a ship means
	(a) in relation to a Convention ship, the person registered as the owner of the ship or, where no person is so registered,
	(i) the person owning the ship, or
	(ii) where the ship is owned by a state and operated by a company that is registered as the ship's operator in that state, the company, or
	(b) in relation to any other ship, the person having for the time being, either by law or by contract, the rights of the owner of the ship with respect to the possession and use of the ship;
``ship'' « navire »	``ship'' includes any description of vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion;
	(2) The definition ``hydrocarbures'' in section 673 of the French version of the Act is replaced by the following :
« hydrocar- bures » ``oil''	« hydrocarbures » Sauf aux articles 716 à 721, les hydrocarbures de toutes sortes sous toutes leurs formes, notamment le pétrole, le fioul, les boues, les résidus d'hydrocarbures et les hydrocarbures mélangés à des déchets, à l'exclusion des déblais de dragage.
	(3) Section 673 of the Act is amended by adding the following in alphabetical order:
``Limitation of Liability Convention'' « Conven- tion sur la limitation de responsabi- lité »	``Limitation of Liability Convention'' has the meaning assigned to the word ``Convention'' by section 574;
R.S., c. 6 (3rd Supp.), s. 84; 1993, c. 36, s. 13; 1996, c. 31, s. 103	6. Section 675 of the Act is replaced by the following:

Bill S-4

BILL S-4

CANADA SHIPPING ACT

Limitation of Liability for Maritime Claims