Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 11 - Evidence
OTTAWA, Tuesday, May 2, 2000
The Standing Senate Committee on Transport and Communications met this day at 9 a.m. to consider Bill S-17, respecting marine liability, and to validate certain bylaws and regulations.
Senator Lise Bacon (Chairman) in the Chair.
The Chairman: Since we have a quorum, the meeting will now come to order. Unfortunately, there is no one here representing the Conservative Party, but I believe senators will be arriving shortly.
I wish to welcome the representatives of the Shipping Federation of Canada. Please proceed with your presentation.
Mr. Gilles Bélanger, President, The Shipping Federation of Canada: We wish to thank the committee for providing the federation this opportunity to submit its views on issues relating to the Marine Liability Act.
The Shipping Federation of Canada represents virtually all international shipping companies that trade in and from ports in Atlantic Canada, the St. Lawrence and the Great Lakes.
The federation's membership consists of Canadian companies that own, operate or act as agents for the ocean-going vessels transporting our nation's imports and exports between Eastern Canada and overseas ports. The type of vessels represented by our members vary from a 25,000-tonne bulk carrier to large container vessels and tankers.
The federation participated in some of the department's consultations on the drafting of Bill S-17 and we support the objectives of the proposed Marine Liability Act. We welcome the consolidation of marine liability regimes regarding passengers, property damages, and pollution claims within one instrument. We believe that the one-stop approach provided in the bill will be user-friendly for ship owners and their representatives when trading in Canadian waters.
Furthermore, we concur with the bill's philosophy of incorporating international conventions in Canadian legislation by reproducing the integral text of the convention in annexes to the legislation rather than attempting to write a Canadian version of the convention. We believe that this is an effective means of preventing the kinds of interpretation problems that may occur when conventions are rewritten into legislation and of facilitating the ability of all parties to understand the obligations imposed on shipowners or others.
We also believe that such an approach may result in a more efficient process for implementing international conventions in Canada by providing a national instrument that is easier to amend.
Looking into the specifics of the proposed legislation, the federation supports the implementation of the Athens Convention to regulate the liability for the carriage of passengers by water, in Part 4 of the act, in order to bring Canada in line with the international regime.
We concur with the clarification of the rules on apportionment of liability in the event of marine claims, as contained in Part 2 of Bill S-17. We also support Parts 3 to 5 and Part 6 of the proposed act as these sections relate to shipowners' liability for damages to cargo or civil liability for pollution claims.
It is our understanding that members of this committee have had questions with regard to new liability regimes and their associated costs of insurance. As far as large commercial vessels are concerned, the cost of insurance for items such as passenger injuries, cargo damages, pollution claims, or damage to the structure of the vessel amounted to about 5 to 10 per cent of the shipowners' operating costs in 1998. Since the various liability regimes compiled in Bill S-17 reflect international conventions, these regimes will not be an issue for our members, who will be able to secure marine insurance on the international market.
Before we conclude our presentation, we would just comment on clause 46 of Bill S-17, which provides for the introduction of a jurisdiction clause in the event of a dispute involving the carrier's liability for damages to goods. More specifically, clause 46 states that under certain circumstances, a claimant may elect to ignore the forum agreed upon in the contract and unilaterally institute proceedings in Canada. The federation is well aware that some countries have either introduced or are considering the introduction of similar or even more far-reaching jurisdiction clauses. One example is the cargo legislation currently under study in the United States, US COGSA 99. Although the federation does not support the nature of such jurisdictional clauses, it recognizes that the introduction of clause 46 may be necessary in the context of the actions taken by other trading partners. Although the policy contained in clause 46 is based in part on the Hamburg Rules -- and, we must be cognizant of the fact that these rules have not yet been implemented in Canada nor have they received significant support around the world -- we are concerned with the splintering of the regime resulting from clause 46 and similar clauses in the legislation of other countries. In our opinion, this approach introduces uncertainties in commercial transactions whereby an element of the agreement -- that is, the forum for dispute -- is modified by a national legislation.
In view of the importance of the legislation as a whole, our objective with regard to clause 46 is not to request an amendment but to urge the Canadian government to complement the approach proposed in Bill S-17 by actively participating in the modernization of the international cargo liability regime, with a view to limiting the proliferation of unilateral national approaches to international marine transportation. In addition, should Canada introduce the notion of confidential contracts in its review of the Shipping Conference Exemption Act, such contracts should then be exempted from the application of clause 46, as they would reflect a clear consent between the parties.
In conclusion, the Shipping Federation of Canada supports the objectives of Bill S-17 and we urge the committee to facilitate expeditious passage of this legislation. We thank the committee for its attention and we welcome questions that members may have.
The Chairman: Because the bill, as it is now worded, does not require shipowners to secure liability insurance, this has prompted some reactions from my Senate colleagues. Could you elaborate further on this point? What percentage of your membership already has liability insurance covering passengers and their property? Would requiring shipowners to have liability insurance pose a threat to the competitiveness of Canada's shipping industry?
Mr. Bélanger: I will defer to my colleague Ms Simard.
Ms Sonia Simard, Director, Policy and Government Affairs, Shipping Federation of Canada: Regarding liability insurance, our members, namely commercial vessel, container vessel and oil tanker owners, are insured with protection and indemnity clubs, which are in fact mutual insurance companies.
In that regard, we do not believe that the insurance requirement from the new liability on passengers will be an issue for us. Most of our members are covered through their PNI coverage policy or protection and indemnity clubs. As far as the issue of insurance for passengers, this is not an issue with regard to large commercial vessels such as those represented by us.
The Chairman: Part 6 of the bill relates to liability for damages for pollution claims. Do you have any idea of the number of vessels that have been charged with polluting Canadian waters in recent years?
Ms Simard: I do not have the exact figures. However, when we talk about pollution, it is important to draw a distinction between major incidents like the Erika spill off the coast of France and what is referred to as unreported spills.
As for the exact number of vessels charged, I think the Federation and perhaps even the department would be hard pressed to give you specific figures. That is one of the problems that Federation members and Transport Canada would like to resolve.
We do not believe this should be happening. The vessels that are involved in such incidents are still limited in number. However, they are not "good-practice" vessels, and we want this problem to be addressed as much as you do. We believe that Transport Canada, in conjunction with Environment Canada, is currently looking at some techniques that would use aviation and radar to trace these vessels so that we can link the oil trace with the offending vessel. That would allow us, first, to prevent an occurrence and, second, to get a better idea on the numbers of vessels involved. That is as concrete as it can get.
Senator Furey: Thank you for coming here this morning. My question concerns your comments on clause 46. We realize that clause 46 is based on the Hamburg Rules. I am not certain what you mean by your concern with the splintering of the regime resulting from clause 46. Could you highlight that concern for the committee?
Mr. Bélanger: Many countries are adopting similar provisions in their laws that provide for uncertainties in contracts of carriage. When the parties enter into an agreement, they may jointly select a forum for dispute. If it happens to go to a country that has that type of legislation, then that forum for dispute may be changed, under certain conditions, by the receiver of the cargo. That is what I meant when I referred to the splintering of the regime.
Ideally, there should be an international regime that covers the liability, independent of where it is coming from or going to in that particular issue. As in all contractual arrangements, parties may decide on the forum for dispute and, generally, the laws that will govern the agreement. That is a deviation from commercial practices that do exist in commerce in general.
As I said earlier, we recognize that we do not have much of a choice in Canada. From a foreign owner's point of view, shipping companies that trade under foreign pavilions or foreign flags should, with their clients, be able to decide on the forum for dispute. From a practical point of view, though, because this is happening all around the world, and speaking as a Canadian, I think the opportunity provided by clause 46 should be available to Canadians, as it is to Americans or Australians or Norwegians. We are expressing our concerns, but because of that situation we are not opposing the clause.
Senator Furey: In your opinion, Mr. Bélanger, what would be the downside if we were to introduce an amendment to address that particular concern? Is it just that it is not being done in other countries?
Ms Simard: In Australia and the Scandinavian countries, there are some jurisdictional clauses that do provide for a national forum. The US COGSA 99 is currently looking into introducing "one jurisdiction" clauses. In the past, their jurisprudence has always brought the suits back to the United States.
Senator Furey: Everyone loves the U.S. -- for litigation!
Ms Simard: We already have jurisdiction clauses that other countries, such as France and the U.K., are considering. When we look at jurisdiction clauses we may want to look at arbitration and jurisdiction itself. Indeed, under the 1958 New York Convention on Arbitration the countries that are party to that agreement have agreed to recognize the arbitration jurisdiction in a clause.
Countries, such as Canada, are part of that convention. It is an issue of interpretation, and the jurisdiction clauses are stretching those types of elements. We can debate the interpretation because we do live in a world with developments, but, were we to go into more of an international negotiation of a regime, we would stop having the proliferation of national instruments. We certainly hope to see that development in the coming years.
Senator Furey: You are quite satisfied to leave it as urging the Canadian government to limit the proliferation of national approaches, to use Mr. Bélanger's term?
Mr. Bélanger: Yes.
Senator Poulin: As Federation President, whose interests are you representing, Mr. Bélanger? Who exactly are the members of your federation?
Mr. Bélanger: The Shipping Federation of Canada represents owners and operators of vessels under foreign registry trading in and from ports in Eastern Canada, the Great Lakes, the St. Lawrence Seaway and Atlantic Canada. A different association represents Canadian shippers.
To the extent that they trade to and from ports in Eastern Canada, all vessels operating under foreign registry, whether Canadian or otherwise, are represented by the Federation. They are represented directly if they have an office in Canada or indirectly, through their agents in Canada, if they have no offices here.
Senator Poulin: And the Federation has how many members?
Mr. Bélanger: It has 75 members, sixty-five of whom are agents. Few shipping companies have offices in Canada, but despite this fact, some 300 international steamship lines trade in and from Canada. This represents about 95 per cent of all oceangoing trade, with the exception of a few parties not represented by the Federation.
Senator Poulin: Given the parties you represent, you must meet with your counterparts from federations in foreign countries on a regular basis.
Mr. Bélanger: Occasionally we are in contact with one another, but since I have only been with the Federation for a few months, I have yet to communicate with them. Of course, we do stay in touch with other associations.
Senator Poulin: Have you had an opportunity to discuss the legislation with your counterparts? How did they react to the bill?
Mr. Bélanger: As a matter of fact, I discussed the bill yesterday in Washington with a representative of the International Chamber of Shipping, a London-based organization. Our conclusions were quite similar, namely that these types of liability regimes are cropping up everywhere. International shippers are mainly concerned about having a liability regime which allows them to establish their own jurisdiction. Countries have moved to adopt provisions similar to what we have in clause 46. The trend is growing around the world.
As I said earlier, Canadians should also be entitled to this benefit. While international shipowners would prefer not to have this kind of liability regime in place, it is something we have to live with.
The Chairman: Thank you, Mr. Bélanger and Ms Simard, for your assistance.
We now welcome Mr. Barry Oland, representing the Canadian Maritime Association. Please proceed.
Mr. A. Barry Oland, President, Canadian Maritime Law Association: Senators, it is a great pleasure to be here in Ottawa and to enjoy the sunny weather. Sometimes we do not have that in Vancouver.
The Canadian Maritime Law Association is an organization that was founded almost 50 years ago. As our paper says, it was founded by maritime legal interests that wanted to develop our maritime law in Canada in contexts such as this as well as internationally through the Comité maritime international.
We have two groups of members. We have individual members who are maritime lawyers, marine surveyors, marine underwriters, shipowners, and people who have an interest in maritime affairs. We also have constituent members, one of which is the Shipping Federation of Canada whose witnesses you just heard. The constituent members, of which there are about 20, comprise a wide-ranging group, including the Association of Average Adjusters of Canada, the Company of Master Mariners of Canada and the Canadian Merchant Service Guild, to name just a few.
I guess you could say that we, like many others, are a lobby group, but our lobby is not one of economics, but rather the promotion of good maritime law within the country and bringing into Canadian law the conventions that are developed internationally.
We are Canada's representative to the CMI, and the CMI is in effect the maritime United Nations. There are 51 member countries. The CMI has been responsible for many of the major international commercial conventions that have been developed over the past 103 years.
It was interesting to hear Mr. Bélanger speak of the necessity for, in effect, a new transportation of goods convention so that we avoid the splintering that is happening at the present time. The CMI is doing that work right now in developing an instrument that will go to our convention in Singapore in 2001.
We are working with UNCITRAL, the United Nations organization that founded the Hamburg Rules in 1978. It has been made clear that the Hamburg Rules will not, in totality themselves, find international acceptance, although certain aspects of the Hamburg Rules have found fairly widespread acceptance. That relates to what I will call the "jurisdiction/arbitration clause" issues in Articles 21 and 22. They have been taken on board by the four Nordic countries and by China, South Africa and Australia, effectively, and are particularly coming aboard with US COGSA 99, their new act for the carriage of goods by sea, which is now close to being introduced in the United States Senate. It is interesting that the CMLA's representations, through our government, to the United States Maritime Law Association have resulted in a change of their draft wording from something that was pretty Draconian to effectively follow what Canada proposes in clause 46.
I think it important for Canada's balance competitively with the United States and for our shippers and receivers that we bring into effect what is proposed in the bill. That will make a level playing field with our colleagues in the United States. We must realize that Canada is basically a country of shippers and receivers. We are not a country of significant deep-sea owners. We are not a Norway or a Japan or a China. The interests of Canada are as receivers and shippers. You might say that we are a cargo nation. As such, it is in our national interest to have available for Canadians a choice of forum.
This clause in the bill was developed by the Canadian Bar Association in close consultation with the Association of Maritime Arbitrators in Montreal, the Canadian Board of Marine Underwriters, and our own organization. It was circulated widely and passed almost unanimously, without comment, at our meeting in June of 1998 and therefore went forward to government.
We support Bill S-17. We think it is a good piece of legislation that brings together in one bill liability regimes in Canada. I will comment on three aspects.
Part 1 deals with personal injuries and fatalities, and I deal with that at page 4 of the presentation. Because maritime law is federal in nature, provincial statutes, such as the Fatal Accidents Act of British Columbia, do not apply. Since the federal maritime law was, shall we say, out of sync or somewhat lagging behind the provincial legislation, there arose situations in which persons injured in a boating accident would not receive the same compensation or have the same opportunity as in the case of an automobile accident. Those aspects are dealt with in the amendments in Part 1.
Part 2 deals with apportionment of liability and eliminates forever the old common law rule of contributory negligence that derived from English common law. That law basically said that if you were 1 per cent at fault, you could not recover. The provinces changed that many years ago, particularly with respect to automobile legislation, and there was some change in the Canada Shipping Act, but these amendments are put into place to ensure that the common law contributory negligence defence is consigned to the history books.
We support those. Those are proper, and those are equitable for Canada.
Part 4 is what you might call the new meat of the legislation. It is bringing into Canadian law the Athens Convention concerning the carriage of passengers and their luggage by sea, or, in our case, by water because of our inland water system. It is a companion piece to Bill S-4, which was the old Bill C-58, and this part was Bill C-59. Those two bills died on the Order Paper when the last election was called. The limitation of liability part, which is also in the bill, came forward to this body in Bill S-4.
Part 4, the Athens Convention, is the companion. It sets out a structured environment for claims by passengers. By "passengers," we mean ticketed, fare-paying individuals. It provides a balance. It would be very rare that you would have to prove liability in a court of law against the passenger carrier. The trade-off for that is that the liabilities are set at what is effectively about $350,000 Canadian per individual. That is the system that has developed worldwide.
With respect to the cruise ship industry, the large cruise ships that come to the East and West Coasts of Canada are highly insured, as Ms Simard told you, through their PNI clubs, their liability insurers, and they really have almost unlimited liability.
With respect to smaller operations, such as whale-watching on both the East Coast and the West Coast, this bill is worthwhile for Canadians because it will eliminate a liability fight between a passenger who is injured and perhaps the whale-watching company that has ticketed conditions. It is perhaps not the same risk as in skiing, but I can use that as an example. When I ski at Whistler, I have to sign my season pass, which basically says that I cannot sue the Whistler lift company except for something very serious. You will find on a ticket conditions that attempt to limit liability. This bill will eliminate that. There is the liability upon the shipowner, on the passenger carrier, but the trade-off is the limit of liability.
I know, from the debates and the questions at the last session, that there was some concern as to whether it is enough. In a perfect world you would say no, it is not enough, because the last revision was in 1990. The IMO, the International Maritime Organization, has this topic on its agenda. The position for Canada would be to adopt what is proposed and then move promptly with the international community to raise the limits, when that happens. We are fortunate in Canada that Alfred Popp of the Department of Transport is chair of the IMO Legal Committee. The word that we get from the IMO is that the Athens Convention will go on their workplace agenda. In the very near future, we will probably have increased limits. This legislation should make it quite simple to raise the limits to the international regimes.
We should like to make one suggestion, or request. You will see described on page 6 of our brief a suggested amendment to clause 37(2)(b) of the bill. This amendment would remove the application of the Athens Convention to "persons." We do not want the Athens Convention applying to the guest on your pleasure vessel on the weekend. It was not designed to do that. I think the drafters can revise it to ensure that the Athens Convention, in clause 37(2)(b), applies only to "passengers" and not to "persons." Within the bill, "persons" has a wider definition than "passengers."
With that one caveat -- a change that can be made quite readily -- our organization supports Bill S-17 and urges that it be brought forward as quickly as possible. We are mindful that things may happen in the fall and we would love to see this bill passed before those events might occur.
The Chairman: I have one question concerning the amendment that you are proposing to us. Was this something you had discussed with the department before they drafted the bill or something that you saw in the bill that you wanted to have corrected or amended?
Mr. Oland: It came up afterwards. Originally, it was brought to everyone's attention by Mr. Douglas McRae, a marine underwriter. I believe he may be appearing before the committee in the future. He looked through it and said, "No. This is too broad." We all looked at it and felt he was right and that we should correct it to limit the Athens Convention application to passengers -- that is, fare-paying, ticketed passengers.
Senator Forrestall: I have no fault at all with virtually everything you have said. However, I have a concern arising out of the proposal that we rethink this particular clause. My concern is what will happens to these people. I am thinking generally in terms of a new phenomenon in our waters, not one involving two freighters or a couple of oil tankers, but one involving an ocean-going kayak and a major ocean-going vessel. There are thousands upon thousands of ocean-going kayakers on the West Coast and there seems to be no end in sight. I understand the delight and pleasure that people get from kayaking on the ocean, but it presents a real danger. By simply taking this clause out, are we not creating a whole vacuum that must be filled with some kind of protection?
Mr. Oland: Are you talking about an individual out in his own vessel?
Senator Forrestall: I am thinking more of rentals.
Mr. Oland: If I rent a kayak, I will probably purchase it or rent it with a ticket. If there is an accident, for example, involving a kayak and a larger vessel, the limitation fund of the larger vessel is probably way over the amount of the claim. I do not think it will go the other way -- that is, where the larger vessel will be claiming against the kayak owner. I do not see where the amendment would operate.
Senator Forrestall: What if Mr. Gates rents a kayak and has a collision with a ferry? The acceptance of unlimited liability on the part of some of these major corporations and the vessels they own and control has little to do with the billions that are involved with Mr. Gates. My point is that Mr. Gates is no longer the exception. He is not the rule yet, but an awful lot of people who pursue this pleasure have significant insurance requirements, protection requirements, commercial protection requirements, and so on. If we push them to one side, are they sufficiently identifiable to be covered somewhere else? While they are mentioned in a whole lot of other places, there is no limitation or box for them.
Mr. Oland: The other limitations are contained in Part 3, that is, the general limitation of liability situation. That was the old Bill S-4. These two dovetailed. For pure passengers, the Athens Convention deals with it. Anyone else is dealt with in Part 3 with regard to the limitations. I cannot think of a situation in which a larger vessel would be after the smaller vessel. If that did happen, because that smaller vessel is under 300 tonnes, the maximum limit of that owner or that individual who is paddling the canoe is $1 million personal injury, plus $500,000 property damage. That is the cap on liability against an individual, whether he is out canoeing or sailing or anything of that nature.
Senator Forrestall: I get upset because of the use of the word "any." We know the description of "vessel"; it could be a raft. I am not happy with this and I do not think that you have a full grasp on it. Somewhere out there, however, there is a full grasp on it. It probably is all right, but I worry about little things.
Senator Furey: I will work back from your last comments concerning the proposed amendment to clause 37(2)(b). If we were to remove any applicability to small vessels, would we not be back in the same kind of predicament we are without this legislation for all vessels in that we would be thrown back on the common law and the rules of volenti and third-party liability? Also, contributory negligence would apply.
That would put us in the position that we would be no further ahead when it came to smaller vessels just because they happened to be operated by friends or neighbours.
Mr. Oland: The situation with respect to clause 37(2)(b) is not with respect to the size of the vessel but with respect to the category of individuals. Athens is designed to provide a liability regime for ticketed, fare-paying passengers.
Senator Furey: Did you not say that we should exempt out the smaller vessels?
Mr. Oland: No, I was not referring to vessels at all. I am talking about the type of person who might be on the yacht, someone who is not a fare-paying passenger. That individual could be on a large vessel but is more likely to be on a smaller vessel as a guest. Their liability regime is dealt with in Part 3 and the two mesh together.
Senator Furey: You do not think they should mesh?
Mr. Oland: They should mesh together, but you should take out the reference to "persons" because it is so broad within clause 37(2)(b). In effect you are extending the Athens Convention to anyone who is on any vessel as a guest in Canada. That was not the aim of the convention.
Senator Furey: I now understand what you are saying. Initially, I thought you were just throwing a blanket over the whole clause, but that is not what you are doing.
Mr. Oland: No.
Senator Furey: You raised an issue with respect to the limit of liability. It seems safe to say that you do have some concerns on that.
Mr. Oland: Personally, I would like to redraft the convention right from the beginning and have higher limits.
Senator Furey: What would be the downside, if any, if the Canadian legislation were on the vanguard of raising those limits?
Mr. Oland: You would be very much out of step with the international community. You would not be able to bring the convention into our Canadian law. You either bring in the convention or you do not bring it in. The downside of not bringing in the convention, in my opinion, outweighs the limits.
Surprisingly, in Canada, personal injury and death amounts are not so great. The $350,000 limit, although it may not be sufficient in some individual cases, surprisingly covers the vast majority of circumstances. I can tell you that from having been involved in some of these cases.
The question of insurance was raised previously. The large shipping companies have insurance. If this bill goes forward, the situation for vessel operators will be well defined.
I have a marine underwriter friend in Vancouver who insures whale-watchers on the West Coast. He said that the seasonal premium for a 10-passenger vessel carrying $3-million liability coverage would be about $4,000. As with automobile insurance, the first $300,000 is very expensive but an additional $4 million or $5 million can be purchased quite inexpensively. If the limits are defined, any reasonable operator will purchase the right amount of insurance for his or her vessel. There are always rogue operators who do not comply, but we cannot control that.
Senator Furey: I was not entirely sure after your exchange with Senator Forrestall whether you are a proponent of compulsory insurance?
Mr. Oland: I think there are better ways of doing it.
Senator Forrestall: There are other ways, perhaps not better ways.
Mr. Oland: Yes, there are other ways of doing it. Transport Canada could have a licence requirement to show a certificate of insurance.
Senator Furey: That would be no different from automobile requirements?
Mr. Oland: That is right. Regulating a whole scheme of compulsory insurance for every small-boat owner in Canada would keep plenty of us employed.
Senator Furey: This concern was raised in our first meeting. Compared to the airline and automobile industries, it appears that the maritime industry is really lagging behind.
Mr. Oland: We have not gone to that point. Transport Canada is developing a licensing system, similar to a driver's license for automobiles. In the future, compulsory insurance could well flow from that system, but it would be a time-consuming and costly exercise to begin at this stage.
Senator Furey: There has been a proliferation of tours and small-scale marine tourism, particularly in areas like Newfoundland, involving activities like those to which you alluded earlier, whale-watching and bird-watching. There is absolutely nothing in place to protect the people who take part in those activities right now.
Mr. Oland: I agree, and the same is happening on the West Coast. From my experience, though, commercial people do get insurance. In most of the cases with which I am familiar, the insurer is appointing counsel.
Senator Furey: That is voluntary insurance.
Mr. Oland: Yes. Rather than a compulsory insurance system, a Transport Canada licensing requirement may be more effective.
Senator Furey: Thank you. I understand that we will be hearing from the insurance industry in any event.
Senator Spivak: I would like draw your attention to clause 112 of the bill at page 59; it refers to the Canadian Environmental Protection Act.
On the last occasion, I asked these questions of Mr. Rysanek, Transport Canada Director of International Marine Policy and Liability. This bill covers inland waters. The Canadian Environmental Protection Act contains penalties for emissions of pollutants and so on. What is the relationship between that act and this bill?
Mr. Rysanek explained that there are civil liabilities here and there are criminal liabilities under the Canadian Environmental Protection Act.
Clause 112 states:
No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under...
-- and so on. I do not understand the clause.
This is my question: What is the relationship between the two acts and was that relationship examined properly? The Canadian Environmental Protection Act is a relatively new act, and I do not think any of the provisions regarding emissions or pollution have really been tested. You can correct me if that is wrong.
What is the relationship? Does this bill infringe upon CEPA? Is CEPA paramount? I am asking particularly in terms of inland waters. I have other questions for ocean-related pollution.
Mr. Oland: There is no difference, so far as I am concerned, between ocean-going and inland rules, between Great Lakes and East Coast or West Coast. Essentially, the statute says that you cannot make a claim under the Canadian Environmental Protection Act if you are able to make a claim under the Marine Liability Act or the Arctic Waters Act.
Senator Spivak: Exactly. Does the term "ship" apply to a personal water craft? Is that inclusive?
Mr. Oland: Yes.
Senator Spivak: That includes that section of the Canadian Environmental Protection Act that refers to emissions by personal water craft, to toxic emissions. In other words, toxic emissions cannot be prosecuted under that act because of this; is that correct?
Mr. Oland: If I had a proper comprehensive answer for your question, I would give it to you.
Senator Spivak: Can you take it under advisement?
Mr. Oland: Yes. You wish to know the interrelationship between them.
Senator Spivak: I do.
Mr. Oland: I appreciate the question. I wish I had a reasoned proper answer for you. I will not try to give one off the top of my head. I can think of the deep sea situation where you have the conventions dealing with oil pollution that have been simply brought into this bill from the existing Part 16 of the Canada Shipping Act. However, checking out the overlap with the Canadian Environmental Protection Act is not something I have personally done, and I do not believe the CMLA has done that. We can certainly do that, if you like.
Senator Spivak: I would appreciate that. There are, under that act, certain penalties for emissions from personal water craft in particular, but basically emissions by boats. Thank you for that; I would appreciate that.
Senator Furey: May I ask a supplementary question on that? My understanding of the clause is that, if a claim is made by a ship under this bill, to the extent that a claim for the damage can be made under one of two other acts, you cannot come back and get a triple bang for your buck. You go one way or the other, but you are not prevented from making your claim. The claim can be made. It can be made under the Marine Liability Act or the Arctic Waters Pollution Prevention Act. You are not out in the cold, is my reading.
Mr. Oland: I agree with that.
Senator Furey: I do not think, Senator Spivak, that it is a case of having a right taken away. It is just a question of where you exercise that right.
Senator Spivak: I do not recall exactly what subsection 42(3) is under the Canadian Environmental Protection Act. You see, this is replacing something under the Canadian Environmental Protection Act and I am wondering if that has any other consequences. Mr. Oland, you will respond to that?
Mr. Oland: Yes.
Senator Spivak: Thank you. The other question I had was whether you thought the provisions under this bill would make a difference in terms of enforcement of vessels which cause all those problems by emptying their bilge waters, resulting in the zebra mussels and so on. I know this is an act which is simply consolidating a number of liability regimes; nevertheless, it may have other impacts, so I am wondering about that.
According to the Chronicle Herald, in the first three months of this year ships polluting Atlantic Canadian waters have been fined a total of $122,000. I do not know if that is a lot or a little. It does not sound like a lot to me considering the damage they might do.
Mr. Oland: There are two types of pollution spills. There is the larger type of spill that just happened off the coast of France, for example, and there is the smaller spill, which is caused by pumping out bilge oil and ballast and so on, and that usually happens in a harbour area. Those, at least in my experience on the West Coast, have declined dramatically simply because Transport Canada and the harbour authorities have become so much better. A vessel comes in, and the bilge valve is sealed. The liability of the shipowner is almost absolute. As a result of that, the compliance, at least on our coast, and I expect it is true on the East Coast as well, has become much better. The number of fines, which used to be quite high 15 or 20 years ago, has decreased because there are fewer prosecutions.
That is a very different thing from a major pollution spill. There is no change on the oil pollution conventions from what was in old Part 16 to new Part 6 of this bill. They are simply brought over. There has been no change in those liability allocations.
Senator Spivak: Thank you.
Senator Forrestall: I wish we could do as well with U.S. military vessels coming into Canadian waters and dumping their excessive wastes in our harbour. They can get away with thousands of tonnes. I am sorry. That is facetious, and I am taking up the time of the committee.
The Chairman: Thank you, Mr. Oland. We will be hearing from you.
Honourable senators, we have in front of us, as future business of the committee, the establishment of a Subcommittee on Transportation Safety. We can deal with that this morning. I will need a motion to establish the Subcommittee on Transportation Safety and to study matters relating to transportation safety that may be referred to it from time to time by the committee. Is there a motion to that effect?
Senator Forrestall: Madam Chairman, I move that a Subcommittee on Transportation Safety be established to study matters relating to transportation safety that may be referred to it from time to time by the committee.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Forrestall: I further move that the subcommittee consist of five members, three of whom shall constitute a quorum.
The Chairman: Do you have the names?
Senator Forrestall: Yes. I further move that the initial membership of the Subcommittee on Transportation Safety be as follows: The Honourable Senators Adams, Callbeck, Forrestall, Perrault and Roberge.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Forrestall: I move that substitution in membership be communicated to the clerk of the subcommittee.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Forrestall: I further move that the subcommittee be authorized to send for persons, papers and records, whenever required, and to print from day to day such papers and evidence as may be ordered by it.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Forrestall: I move that the committee's power to permit coverage by electronic media be conferred on the subcommittee.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Forrestall: I move that the study on the state of transportation safety and security in Canada and to complete a comparative review of technical issues and legal and regulatory structures referred to the committee by the Senate on March 21, 2000 be referred to the Senate Subcommittee on Transportation Safety for consideration and report pursuant to the Rules of the Senate.
The Chairman: Is it agreed, senators?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Spivak: I have a comment, which I am sure is out of order. I hope the committee will look at the new trucking regulations that permit truckers to work longer hours. I hope they would make that a priority before the regulations are completely set in stone, because they can now go 84 hours at a time without a break.
Senator Forrestall: Madam Chair, I hope we would be in a position to start looking at that and other very critical questions before May is over.
The Chairman: Our next meeting will be tomorrow at 5:30 in Room 356. We have one witness from the Canadian Board of Marine Underwriters.
Senator Furey: Madam Chair, will that be the only insurance industry person attending?
The Chairman: If you have recommendations to make to the committee, we can invite other people.
The committee adjourned.