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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
The Chairman: If you have recommendations to make to the committee, we can
invite other people.
The committee adjourned.