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The Canadian Compensation Regime
The SOPF came into force on April 24, 1989, by amendments to the CSA. The SOPF succeeded the Maritime Pollution Claims Fund (MPCF), which had existed since 1973. In 1989, the accumulated amount of $149,618,850.24 in the MPCF was transferred to the SOPF.
Effective August 8, 2001, the SOPF is governed by Part 6 of the Marine Liability Act (MLA) Statutes of Canada, 2001, chapter 6.
The SOPF is a special account established in the accounts of Canada upon which interest is presently credited monthly by the Minister of Finance.
A levy of 15 cents per tonne was imposed form February 15, 1972, until September 1, 1976, during that period a total of $34,866,459.88 was collected and credited to the MPCF from 65 contributors. Payers into the MPCF included oil companies, power generating authorities, pulp and paper manufacturers, chemical plants and other heavy industries.
During the fiscal year commencing April 1, 2006, the Minister of Transport has the statutory power to impose a levy of 44.19 cents per metric tonne of “contributing oil” imported into or shipped from a place in Canada in bulk as cargo on a ship. The levy is indexed annually to the consumer price index.
No levy has been imposed since 1976.
The SOPF is liable to pay claims for oil pollution damage or anticipated damage at any place in Canada, or in Canadian waters including the exclusive economic zone of Canada, caused by the discharge of oil from a ship.
The SOPF is intended to pay claims regarding oil spills from all classes of ships. The SOPF is not limited to sea-going tankers or persistent oil, as is the 1992 IOPC Fund.
The SOPF is also intended to be available to provide additional compensation (a third layer) in the event that funds under the 1992 Civil Liability Convention (CLC) and the 1992 IOPC Fund Convention, with respect to spills in Canada from oil tankers, are insufficient to meet all established claims for compensation (See Figure 1, Appendix D).
During the fiscal year commencing April 1, 2006, the maximum liability of the SOPF is $147,357,402.80 for all claims from one oil spill. This amount is indexed annually.
The classes of claims for which the SOPF may be liable include the following:
- Claims for oil pollution damage;
- Claims for costs and expenses of oil spill clean-up including the cost of preventative measures; and
- Claims for oil pollution damage and clean-up costs where the identity of the ship that caused the discharge cannot be established (mystery spills).
A widely defined class of persons in the Canadian fishing industry may claim for loss of income caused by an oil spill from a ship.
The present statutory claims regime of Part 6 of the MLA, on the principle that the polluter should pay, has as its four cornerstones:
- All costs and expenses must be reasonable;
- All clean-up measures taken must be reasonable measures;
- All costs and expenses must have actually been incurred; and
- All claims must be investigated by an independent authority (the Administrator).
Experience shows that the investigation and assessment of claims is expedited when claimants provide convincing evidence and written explanations. This includes various justifications by the On-Scene Commander (ASC) and proof of payment, etc. Detailed logs and notes by the OSC and others are invaluable in facilitating the settlement and payment of claims. It is essential that the measures taken and the costs and expenses incurred are demonstrably reasonable. The claim should be presented in a timely manner.
SOPF: A Fund of Last Resort
The MLA makes the shipowner strictly liable for oil pollution damage caused by his ship, and for costs and expenses incurred by the Minister of Fisheries and Oceans and any other person in Canada for clean-up and preventive measures.
As provided in the MLA, in the first instance, a claimant can take action against a shipowner. The Administrator of the SOPF is a party by statute to any litigation in the Canadian courts commenced by a claimant against a shipowner, its guarantor, or the 1992 IOPC Fund. In such event, the extent of the SOPF's liability as a last resort is stipulated in section 84 MLA.
The Administrator also has the power and authority to participate in any settlement of such litigation, and may make payments out of the SOPF as may be required by the terms of the settlement. A response organization (RO) as defined in the CSA has no direct claim against the SOPF, but it can assert a claim for unsatisfied costs and expenses after exhausting its right of recovery against the shipowner.
SOPF: A Fund of First Resort
The SOPF can also be a fund of first resort for claimants, including the Crown.
As provided in section 85 MLA, any person may file a claim with the Administrator of the SOPF respecting oil pollution loss or damage or costs and expenses, with one exception. An RO, established under the CSA, has no direct claim against the SOPF.
The Administrator, as an independent authority, has a duty to investigate and assess claims filed against the SOPF. For these purposes, he has the powers to summon witnesses and obtain documents.
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