Canada: Applying The Nairobi International Convention In Canada: The Wrecked, Abandoned And Hazardous Vessels Act (Canada)

Last Updated: July 9 2019
Article by Joanna Dawson

On April 30, 2019, Canada acceded to the International Convention on the Removal of Wrecks, 2007 (the “Convention”) which will come into force in Canada under the Wrecked, Abandoned and Hazardous Vessels Act (the “Act”) on July 30, 2019. This also corresponds with the Government of Canada’s $1.5-billion Oceans Protection Plan, which aims to preserve and restore marine ecosystems vulnerable to increased marine shipping and development. The Convention seeks to curb the serious problems caused by hazardous wrecks for coastal states and the marine environment generally. The adoption of the Convention into Canadian law makes shipowners financially liable and requires them to take out insurance or provide other financial security to cover the costs of wreck removal.

Wrecked, Abandoned and Hazardous Vessels Act

The purpose of Act is to promote the protection of the public, of the environment, including coastlines and shorelines, and of infrastructure by, among other things, regulating wrecks and vessels posing hazards, prohibiting vessel abandonment, and recognizing the responsibility and liability of owners for their vessels. The Act applies to (1) all vessels in Canadian waters or in the exclusive economic zone of Canada, (2) Canadian vessels wherever they are, and (3) wrecks within Canada, its territorial sea, and exclusive economic zone that are the result of a maritime casualty. A “wreck” is defined as “a vessel, or part of a vessel, that is sunk, partially sunk, adrift, stranded or grounded, including on the shore; or equipment, stores, cargo or any other thing that is or was on board a vessel and that is sunk, partially sunk, adrift, stranded or grounded, including on the shore”.

Strict Liability

The key implications of the Act are that vessel owners will be subject to strict liability for hazardous wrecks, with certain owners being required to hold wreck insurance. In doing so, the legislation seeks to minimize the harm wrecks cause to “marine safety, navigation, property, communities, and the environment”. Hazardous wrecks are defined under the Convention as those that may result in “major harmful consequences to the marine environment, or damage to the coastline” or marine interests (such as fisheries and tourism).

The initial burden for wreck removal is on the vessel owner. Under section 21(1) of the Act, if the Minister of Fisheries and Oceans (the “Minister”) deems the wreck (i.e. the vessel that was involved in the maritime casualty that resulted in the wreck) to pose hazard, he or she may direct the owner of the vessel to remove the wreck. If an owner fails to do so within the specified time, or cannot be contacted, the Minister will be permitted to take any action he or she considers proportionate to mark or remove the wreck. Further, under sections 30, 32 and 34 of the Act, vessel owners are prohibited from stranding, abandoning, or sinking any dilapidated vessels. Doing so will again permit the Minister to take any required measures to remove the hazardous wreck.

The owner of a hazardous wreck will be strictly liable for any costs incurred in the wreck removal process by the Minister. Exceptions to strict liability include wrecks resulting from war, natural phenomenon, a damage-intending third party’s sole act or omission, or wrongful acts or omissions by the government or navigational authorities.

Insurance and Certification

When the Act comes into force on July 30, 2019, owners of Canadian registered vessels that are over 300 gross tons will be required to carry insurance for wreck removal. This insurance must allow for direct action against the insurer and be up to the limits of liability that apply to the particular ship in accordance with the Marine Liability Act (Canada). Alternatively, a vessel owner may demonstrate that it has other financial security arrangements to cover the costs of “locating, marking and removing” the wreck.

In addition, vessel owners will also be required to hold and carry a Wreck Removal Convention Certificate (the “Certificate”) evidencing proof of insurance (or another form of financial security as noted above). Owners must have a Certificate for each vessel that meets the mandatory insurance criteria and must produce it upon request.  In order to apply for a Certificate, the vessel owner must provide to Transport Canada (1) evidence of insurance (i.e. a blue card), and (2) a completed application form.

Foreign-registered vessels over 300 gross tons calling at Canadian ports and terminals will need to show a certificate issued by a state party to the Convention. A foreign vessel registered in a non-state party to the Convention that does not already have a Certificate may submit an application to Transport Canada.

Such vessels not carrying a Certificate will be prohibited from operating in Canada (if a Canadian vessel) or entering or leaving a port in Canada or its exclusive economic zone. Failure to obtain a Certificate may result in an enforcement action, including the detention of the vessel and fines.

Shipowners should begin the process of reviewing their insurance documents to ensure they will be compliant with the new insurance and certification requirements.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2019

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions