Marginal note:Professional and technical aid

81. The Administrator may, for the purpose of performing duties under this Part, obtain the professional, technical and other advice and assistance that the Administrator considers necessary.

Marginal note:Costs, expenses and fees

• 82. (1) On the direction of the Minister of Finance, all costs and expenses incurred by the Administrator in performing duties and functions under this Part, and fees for services rendered by the Administrator calculated in accordance with a tariff prescribed by the regulations, shall be paid out of the Consolidated Revenue Fund and charged to the Ship-source Oil Pollution Fund.

• Marginal note:Taxation

  (2) Assessment officers of the Admiralty Court may, at the request of the Minister of Justice, tax any account for costs, expenses or fees submitted by the Administrator to the Minister of Finance as if the Administrator were acting for the Crown in proceedings in that Court, but, on any such taxation, no fee may be allowed in excess of that set out in the tariff referred to in subsection (1).

Marginal note:Deputy Administrator

• 83. (1) The Governor in Council may appoint a Deputy Administrator of the Ship-source Oil Pollution Fund to hold office during good behaviour for a term, not exceeding five years, that is fixed by the Governor in Council, subject to removal by the Governor in Council for cause.

• Marginal note:Eligibility for re-appointment

  (2) The Deputy Administrator is eligible for reappointment on the expiry of the Deputy Administrator’s term of office.

• Marginal note:Absence, etc., of Administrator

  (3) If the Administrator is absent or incapacitated or the office of Administrator is vacant, the Deputy Administrator has all the powers and duties of the Administrator.

• Marginal note:Application of sections 80 and 82

  (4) Sections 80 and 82 apply to the Deputy Administrator, with any modifications that the circumstances require.

Liability of Ship-source Oil Pollution Fund

Marginal note:Liability of Ship-source Oil Pollution Fund

84. Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the matters referred to in subsection 51(1) in relation to oil, if

• (a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship and, in the case of a Convention ship, from the International Fund and have been unsuccessful;

• (b) the owner is not liable by reason of any of the defences described in subsection 51(3) and the International Fund is not liable either;

• (c) the claim exceeds

  • (i) in the case of a Convention ship, the owner’s maximum liability under this Part to the extent that the excess is not recoverable from the International Fund, and

  • (ii) in the case of a ship other than a Convention ship, the owner’s maximum liability under Part 3;

• (d) the owner is financially incapable of meeting the owner’s legal obligations under subsection 51(1), to the extent that the obligation is not recoverable from the International Fund;

• (e) the cause of the oil pollution damage is unknown and the Administrator has been unable to establish that the occurrence that gave rise to the damage was not caused by a ship; or

• (f) the Administrator is a party to a settlement under section 90.

Claims Arising under Section 51

Marginal note:Claims filed with Administrator

• 85. (1) In addition to any right against the Ship-source Oil Pollution Fund under section 84, a person who has suffered loss or damage or incurred costs or expenses referred to in subsection 51(1) in respect of actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.

• Marginal note:Time limits

  (2) Unless the Admiralty Court fixes a shorter period under paragraph 92(a), a claim under subsection (1) must be made

  • (a) within two years after the day on which oil pollution damage occurred and five years after the occurrence that caused that damage, or

  • (b) if no oil pollution damage occurred, within five years after the occurrence in respect of which oil pollution damage was anticipated.

• Marginal note:Exception

  (3) Subsection (1) does not apply to a response organization referred to in subsection 51(1)(b) or a person in a state other than Canada.

Marginal note:Duties of Administrator

• 86. (1) On receipt of a claim under section 85, the Administrator shall

  • (a) investigate and assess the claim; and

  • (b) make an offer of compensation to the claimant for whatever portion of the claim the Administrator finds to be established.

• Marginal note:Powers of Administrator

  (2) For the purpose of investigating and assessing a claim, the Administrator has the powers of a commissioner under Part I of the Inquiries Act.

• Marginal note:Factors to be considered

  (3) In investigating and assessing a claim, the Administrator may consider only

  • (a) whether the claim is for loss, damage, costs or expenses referred to in subsection 85(1); and

  • (b) whether the claim resulted wholly or partially from

    • (i) an act done or omitted to be done by the claimant with intent to cause damage, or

    • (ii) the negligence of the claimant.

• Marginal note:Cause of occurrence

  (4) A claimant is not required to satisfy the Administrator that the occurrence was caused by a ship, but the Administrator shall dismiss a claim if satisfied on the evidence that the occurrence was not caused by a ship.

• Marginal note:When claimant at fault

  (5) The Administrator shall reduce or nullify any amount that the Administrator would have otherwise assessed in proportion to the degree to which the Administrator is satisfied that the claim resulted from

  • (a) an act done or omitted to be done by the claimant with intent to cause damage; or

  • (b) the negligence of the claimant.

Marginal note:Offer of compensation

• 87. (1) If the Administrator makes an offer of compensation to a claimant under section 86, the claimant shall, within 60 days after receiving the offer, notify the Administrator whether the claimant accepts or refuses it and, if no notification has been received by the Administrator at the end of that period, the claimant is deemed to have refused the offer.

• Marginal note:Appeal to Admiralty Court

  (2) A claimant may, within 60 days after receiving an offer of compensation from the Administrator or a notification that the Administrator has disallowed the claim, appeal the adequacy of the offer or the disallowance of the claim to the Admiralty Court, but in an appeal from the disallowance of a claim that Court may consider only the matters described in paragraphs 86(3)(a) and (b).

• Marginal note:Acceptance of offer by claimant

  (3) If a claimant accepts an offer of compensation from the Administrator under section 86,

  • (a) the Administrator shall without delay direct payment to the claimant of the amount of the offer out of the Ship-source Oil Pollution Fund;

  • (b) the claimant is then precluded from pursuing any rights that the claimant may have had against any person in respect of matters referred to in subsection 51(1) in relation to the occurrence to which the offer of compensation relates;

  • (c) the Administrator is, to the extent of the payment to the claimant, subrogated to any rights of the claimant mentioned in paragraph (b); and

  • (d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund or any other person liable and, for that purpose, the Administrator may commence an action in the name of the Administrator or the claimant and may enforce any security provided to or enforceable by the claimant, including any claim against a shipowner’s fund established under subsection 58(1).

Claims for Loss of Income

Marginal note:Meaning of terms

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

• Definition of “claimant”

  (2) In this section, “claimant” means

  • (a) an individual who derives income from fishing, from the production, breeding, holding or rearing of fish, or from the culture or harvesting of marine plants;

  • (b) the owner of a fishing vessel who derives income from the rental of fishing vessels to holders of commercial fishing licences issued in Canada;

  • (c) an individual who derives income from the handling of fish on shore in Canada directly after they are landed from fishing vessels;

  • (d) an individual who fishes or hunts for food or animal skins for their own consumption or use;

  • (e) a person who rents or charters boats in Canada for sport fishing; or

  • (f) a worker in a fish plant in Canada, excluding, except in the case of a familytype co-operative operation that has a total annual throughput of less than 1,400 metric tons or an annual average number of employees of fewer than 50, a person engaged exclusively in supervisory or managerial functions.

• Marginal note:Filing of claim with Administrator

  (3) Subject to this section, a claimant who has suffered or will suffer a loss of income, or loss of a source of food or animal skins in the case of a person described in paragraph (2)(d), resulting from a discharge of oil from a ship and not recoverable otherwise under this Part may file a claim with the Administrator for that loss or future loss

  • (a) within three years after the day on which the discharge of the oil occurred or first occurred, as the case may be, or could reasonably be expected to have become known to the claimant; and

  • (b) within six years after the occurrence that caused the discharge.

• Marginal note:Limitations

  (4) The right to file a claim under this section is limited to claimants who

  • (a) were lawfully carrying on an activity described in subsection (2); and

  • (b) except in the case of individuals described in paragraph (2)(d),

    • (i) are Canadian citizens or permanent residents of Canada within the meaning of subsection 2(1) of the Immigration Act, in the case of an individual, or

    • (ii) are incorporated by or under the laws of Canada or a province, in the case of a corporation.

• Marginal note:Cause of occurrence

  (5) A claimant is not required to satisfy the Administrator that the occurrence was caused by a ship, but the Administrator shall dismiss a claim if satisfied on the evidence that the occurrence was not caused by a ship.

• Marginal note:Time for filing claim may be shortened

  (6) The period mentioned in subsection (3) for filing a claim under that subsection may be shortened by order of the Admiralty Court under paragraph 92(a).

Marginal note:Responsibility of Administrator

• 89. (1) On receipt of a claim filed under subsection 88(3), the Administrator shall

  • (a) if the Administrator considers the action appropriate for the proper administration of the Ship-source Oil Pollution Fund, direct payment of the amount of the loss alleged in the claim or otherwise agreed on between the Administrator and the claimant; or

  • (b) in any other case, transmit the claim to the Minister.

• Marginal note:Appointment of assessors

  (2) On receipt of a claim from the Administrator under paragraph (1)(b), the Minister shall,

  • (a) after consulting with the Minister of Fisheries and Oceans, the Minister of the Environment and the Administrator, appoint as assessors one or more persons not employed in the Public Service, as defined in subsection 3(1) of the Public Service Superannuation Act; and

  • (b) fix the remuneration and expenses to be paid to the person or persons while they are acting as assessors and authorize the Administrator to direct payment of the remuneration and expenses to them.

• Marginal note:Assessment of loss

  (3) For the purpose of assessing a loss alleged by a claimant under section 88, an assessor or assessors, in this section referred to as the “assessor”,

  • (a) after giving reasonable notice to the Administrator and the claimant, shall meet with the Administrator and the claimant or their representatives;

  • (b) may receive and consider any written or oral evidence submitted to the assessor by or on behalf of the Administrator or the claimant, whether or not the evidence would be admissible before a court; and

  • (c) in so doing, has all the powers of a commissioner under Part I of the Inquiries Act.

• Marginal note:Report to Minister

  (4) The assessor shall, within 60 days after the assessor’s appointment or within any longer period that is agreed to by the Minister, report to the Minister whether, in his or her opinion, the following requirements have been met:

  • (a) the loss alleged by the claimant has been established;

  • (b) the loss resulted from the discharge of oil from a ship; and

  • (c) the loss is not recoverable otherwise under this Part.

• Marginal note:Amount of loss

  (5) If the assessor reports that the requirements of paragraphs (4)(a) to (c) have been met, the report must set out the amount of the loss as assessed by the assessor.

• Marginal note:Payment of assessed loss out of Fund

  (6) On receipt of the report, the Minister shall without delay forward a copy of it to the claimant and to the Administrator, who shall direct payment to the claimant out of the Ship-source Oil Pollution Fund of an amount equal to the amount, if any, of the assessed loss set out in the report.

Proceedings against Shipowner

Marginal note:Proceedings under section 51

• 90. (1) If a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter referred to in subsection 51(1), except in the case of proceedings commenced by the Minister of Fisheries and Oceans under paragraph 51(1)(c) in respect of a pollutant other than oil,

  • (a) the document commencing the proceedings shall be served on the Administrator by delivering a copy of it personally to the Administrator, or by leaving the copy at the Administrator’s latest known address, and the Administrator is then a party to the proceedings; and

  • (b) the Administrator shall appear and take any action, including being a party to a settlement either before or after judgment, that the Administrator considers appropriate for the proper administration of the Ship-source Oil Pollution Fund.

• Marginal note:When Administrator is a party to a settlement

  (2) If the Administrator is a party to a settlement under paragraph (1)(b), the Administrator shall direct payment to the claimant of the amount that the Administrator has agreed to pay under the settlement.

Limit of Liability of Ship-source Oil Pollution Fund

Marginal note:Limit of liability of Ship-source Oil Pollution Fund in first year

• 91. (1) The maximum aggregate liability of the Ship-source Oil Pollution Fund under sections 84, 86 and 88 and under any settlement, in respect of any particular occurrence, is

  • (a) $100,000,000 if the occurrence took place in the year ending March 31, 1990; or

  • (b) if the occurrence takes place in any following year, an amount calculated in accordance with subsection (2).

• Marginal note:Annual adjustment of limit of liability

  (2) The $100,000,000 limit of liability referred to in paragraph (1)(a) shall be adjusted annually so that the limit of liability arising out of any given occurrence that takes place in any following year is an amount equal to the product obtained by multiplying

  • (a) the limit of liability that would have been applicable for that following year if no adjustment had been made under this section with respect to that following year

  by

  • (b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period.

• Marginal note:Consumer Price Index

  (3) For the purpose of this section,

  • (a) a reference to the “Consumer Price Index, excluding the food and energy components,” for any 12-month period means the average of the Consumer Price Index for Canada, excluding the food and energy components, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period;

  • (b) the Governor in Council may, on the recommendation of the Minister, make regulations prescribing the manner in which the average of the Consumer Price Index, excluding the food and energy components, for any 12-month period is to be determined and the manner of expressing any such average that is determined to be a fraction of a whole number;

  • (c) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is adjusted to reflect a new time basis, a corresponding adjustment shall be made in the Consumer Price Index, excluding the food and energy components, for any 12-month period that is used for the purpose of calculating the limit of liability of the Ship-source Oil Pollution Fund under this section; and

  • (d) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is modified to reflect a new content basis, that modification does not affect the operation of this section.

• Marginal note:Adjusted limit to be published annually

  (4) The Minister shall cause the limit of liability referred to in subsection (1), adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the limit of liability so published is admissible in any proceeding under this Part as conclusive proof of that limit of liability for the year in question.