Tetley (2002) introduction to conflict of laws 5

A Maritime Court

1. 
   s.22(1) – general powers
   
2. 
   Concurrent jurisdiction of Superior courts of Provinces and Federal Court in Admiralty Matters
   
3. 
   Suit in Provincial Court unless Federal Government has specifically stated otherwise
   

• 
  Constitution Act s.101 – Parliament of Canada can make courts for the benefit of Canada and the better administration of laws of Canada
  
• 
  In 1867 when this was adopted there were federal courts and provincial superior courts there were also admiralty courts (imperial courts, created by England, 1890).
  
• 
  In 1934 under s.101 the federal government created the Exchequer Court of Canada.
  
• 
  In 1970 the Exchequer Court of Canada was renamed, Federal Court of Canada. Change effective June 1, 1971. This court has concurrent original jurisdiction (can hear cases in first instance) with provincial superior courts and can hear cases relating to Canadian maritime law.
  

1. Jurisdiction of the Court

• 
  The Federal Court Act sets out the Fed Court’s general jurisdiction with regards to Canadian Maritime Law at s. 22(1)…s. 22(2) has nineteen subsections of specific examples coming under its jurisdiction.
  
• 
  S.22(1) – The trial judge has concurrent original jurisdiction in all cases in which a claim for relief is made or a remedy is sought by Canadian maritime law or any other law of Canada relating to any matter coming within the subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specifically assigned.
  
• 
  Can take a case to superior court or federal court (concurrent jurisdiction in admiralty matters).
  
• 
  S.2 – Refers to Canadian maritime law as law administered by virtue of the Admiralty Act or any other statute or that would have been so administered if the court had had on its admiralty side unlimited jurisdiction with regards to maritime and admiralty matters, as that law has been altered by the act or any other Act of Parliament of Canada.
  
• 
  S. 42 – Canadian maritime law as it was immediately before June 1^st 1971 [date the Federal Court Act came into force] continues subject to such changes therein as may be made by this or any other act.
  
• 
  Tetley - emphasizes that the superior courts of the provinces and the Federal Court have concurrent jurisdiction over maritime matters. The Superior Courts also have jurisdiction over civil matters.
  

1. Quebec North Shore Paper v. CP Ltd. [1977] SCC

• 
  s.101, which mentions “laws of Canada”, is taken as referring only to federal laws and not provincial laws.
  
• 
  “Laws of Canada” were deemed to be federal laws that consisted of “applicable and existing law federal law, whether under statute or regulation or common law.”
  
• 
  The common law problem is that common law doesn’t “exist,” it is continually growing/changing.
  
• 
  Thus, the Federal Court only had jurisdiction over substantive Federal law because “laws of Canada” in s.101 of the Constitution Act 1867 did not include provincial law.
  
• 
  Under s.101 the establishment of a general court of appeal for the better administration of laws of Canada only applied to federal laws that consisted of 'applicable and existing' federal law, including statute and the common law [the requirement of existing and applicable meant that it did not extend to the judicial creation of a federal common law].
  
• 
  Tetley - that laws of Canada do not include provincial law is questionable.
  

What does Canadian maritime law encompass?

2. Tropwood v. Sivaco Wire & Nale Co[1979] SCC

• 
  Came before Supreme Court – claimed that there was jurisdiction to hear the case because there was a general Canadian maritime law apart from the French law statute which was to apply
  
• 
  The Supreme Court tried to save itself by saying that 'law of Canada' means maritime law of Canada in general and not merely a federal statute. This body included admiralty law and jurisdiction administered formerly by the High Ct. of England, the Exchequer Court of Canada, carried through the Admiralty Act of 1934 & the Fed Ct Act of 1970…which included claims for damages of incoming cargo, conflict laws rules of the forum, thereby permitting the Federal Court to determine whose law governed this case.
  
• 
  Supreme Court said that it had jurisdiction to hear case, and that general maritime law applies. Extended the meaning of “laws of Canada” even to a shipment coming from France. This case expanded the boundaries of Canadian Maritime Law & substantive Federal Maritime law.
  

After this case, the SCC’s expanded notion of Canadian maritime law forced it to venture into fields that had been previously considered to be provincial.

3. Antares Shipping Corporation v. Ship Capricorn [1980] SCC

• 
  Held that general maritime law of Canada, not provincial law, applied to sale of a ship.
  
• 
  Even if there was no federal statute on this matter at the time and sale had always been governed by provincial law, English admiralty law governed and was paramount.
  

4. Wire Rope Industries of Canada v. BC Marine Shipbuilders [1981] SCC

• 
  The case extended Federal law to cover third-party claims arising form the defective resocketting of a tug's towing cable.
  
• 
  This claim formed part of English Admiralty law of 1890 was declared as incorporated into Canada in 1891 and continued in federal statutes 1934, 1970.
  

What law applies to marine insurance?

5. Triglav v. Terrasses Jewellers [1983] SCC

• 
  Maritime insurance falls into Canadian maritime law even if there was no evidence of what federal marine insurance law consists of.
  

2. The Buenos Aires Decision and Canadian Maritime Law

• 
  Case held that federal maritime law applied. Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment as incorporated into Canadian law from England. This law included: specialized rules and principles of admiralty and the rules and principles adopted from the common law applied in admiralty cases as they continue to be modified and expanded by Canadian jurisprudence.
  
• 
  Incorporation of this law was deemed to have taken place in 1934 with Canada’s Admiralty Act – becomes the proper definition of the law, being England’s common law of tort, contract and bailment as of 1934, under the guise of English maritime law – no acknowledgment of it being civilian in nature.
  
• 
  There is a second category of maritime law at s.2 of Federal Court Act: "laws that the Exchequer Court would have administered if it had had an unlimited jurisdiction with regards to maritime and admiralty matters." MacIntyre J. expressed this was not frozen in 1934, but evolves and is only limited by the constitutional division of powers in Constitution Act 1867. Should be interpreted within the modern context of commerce and shipping.
  
  • 
    This requires an establishment that the subject-matters under consideration is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence.
    
  • 
    That Canadian Maritime law was law relating to Navigation and Shipping and that it met the 'laws of Canada' requirement of s.101 Constitution Act 1867
    
• 
  Unclear whether it is the common law principles from England (beginning of time) or those that were adopted in Canadian law much later?
  

Result was that in terms of Himalaya clauses the current common law of England was applied rather than civil law of Quebec or the maritime law of England, so that the terminal operator was unable to invoke the contract between the shipper and the ocean carrier in respect of third party benefits. [Under the stricter civilian principle of stipulation for another, the terminal operator would have been unable to enjoy the benefits of the bill of lading contract].

1. 
   Have the date of reception of English law wrong
   
2. 
   The notion that English law is frozen in its inception is wrong (our Canadian maritime law is not frozen in time, but it is not merely Canadian, we embrace the decisions of other countries),
   
3. 
   Canadian maritime law was characterized as English common law (fails to recognize the historical reality that English common law has been civilian)
   

Important case but now has been completely replaced by legislation. Example of federal government saying that everything connected with boats/waters is federal, is faced with a difficult problem because someone was injured in a boat but he was partially at fault so there was no collision and there was no federal law which was directly applicable. If provincial law applied (i.e. Ontario) there would have been proportionate fault. There was no statute regarding damages at federal law, so would technically recover nothing because of the contributory negligence rule.

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