The Role of the Fund
The Fund may be used as a fund of last resort or of first resort; the choice is that of the claimant.
Fund of Last Resort. The Ship-source Oil Pollution Fund is available for compensation if all reasonable steps have been taken to recover compensation from the shipowner and those steps have been unsuccessful, if the shipowner is able to raise any one of the statutory defences, if the claim for compensation exceeds the shipowner’s limit of liability, if the shipowner is financially incapable of meeting his obligations or if the cause of the oil pollution damage is unknown, a situation commonly referred to as “mystery spill”. (Section 101 of the Marine Liability Act).
Fund of First Resort. A person who has suffered loss or damage from oil pollution from a spill from a ship (or imminent risk thereof) may also file a claim directly with the Fund (section 103 of the Marine Liability Act. However, this option does not exist for a response organization or for a person in a state other than Canada: the SOPF is available to them as a fund of last resort only.