Tetley (2002) introduction to conflict of laws 5
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- A DEFINITION OF CANADIAN MARITIME LAW
- Issues of Provincial Authority
- Maritime Conflict Rules – Federal or Provincial
The Modern Lex MaritimaBesides the historic general maritime law, a modern lex maritima exists in international bill of lading and charterparty forms and in universal terms and practices throughout the shipping world. A voyage charterparty entered into in any country in the world has terms with common meanings and that exist without the benefit of any intervention by national or international governments – they exhibit a consensus on basic rules and definitions of legal terms. A. Arbitration and a modern lex mercatoria (merchant law) Amiable Compositeurs – arbitrators who can settle the dispute without referring to the law – they can refer to the principles they believe just (under art.28 of UNCITRAL Model Law on International Commercial Arbitration…also in Codes of Civil Procedure of France and Quebec). Such “equity clauses” in the common la are suspect. Many international commercial arbitrators believe that a lex mercatoria, in the form of generally accepted, uncodified, international commercial usages and trade practices, seems to be building up because of the power of arbitrators to avoid procedural niceties during the arbitration proceedings. This is certainly so in international maritime arbitration. This practice seems to spill over into the substance of the dispute and is beginning to generate a body of arbitral case law, in much the same way as the common law was originally formed. Three reasons for this: arbitrators are often familiar with the usage of particular trades from their own personal experience many modern arbitration laws and rules require arbitrators to take account of relevant trade usages, regardless of what law governs the dispute arbitrators enjoy much discretion in applying rules of law the different views are explained by the attitudes towards arbitration in general (awards are secret in the U.K. and usually not published, and reasons are not necessarily given, so no body of law really exists…in France and U.S. arbitration is conducted apart from the courts creating new jurisprudence…English common law is hardened by fixed rules and the innovation comes from new legislation, not the courts) the ius commune is historically a civilian concept so the common law courts have some difficulty understanding it B. Ius Commune in Conflict of Laws In the US, the 'teleological' approach (settling things on what is best…looking at both laws and consequences – result oriented) has gained some prominence as a theory in the conflict of laws - that the proper law should be chosen by result-oriented conflict rules (i.e. a law that best responds to contemporary socioeconomic policies). Some argue that this represents the development of a new ius commune. McDougal (the rule that best promotes net aggregate long term interests but more recently suggests a solution to accommodate transnational community policies) and Jeunger (stability and fairness) – the fairest law for the parties is the best law and not government interest analysis – we need a new ius gentium to provide quality solutions to transnational disputes in non-commercial fields. Tetley: “In each conflict under the teleological approach, one does not decide what is the applicable law, but rather what is the best solution. One does not seem to have created a conflict of laws rule, but rather a substantive rule of universal equity.” Because they never adopted the Second Restatement on Conflicts and the Third Restatement, they are down to the lex fori or teleological theories. Is this theory overly simple? the theory of the ius commune in conflict of laws seems very similar to the lex fori rule of conflicts of Cook and Ehrenzweig, which seems to be the antithesis of conflict of laws because it does not seek out the properly applicable law but simply applies the law of the forum Conclusion: Is there a lex mercatoria in the 21st century? The answer must be 'yes' in maritime law, it being the general maritime law in such countries as the UK, US and Canada (the lex maritima), derived from the lex mercatoria, the Roles of Oleron, and the merchants and admiralty courts. It also exists in various international documents and understandings which have no legal authority, national or international (BIMCO bills of lading, standard form charterparties, CMI Uniform Rules for Sea Waybills). Conclusion of Article: Is there a lex mercatoria? Yes – it exists in the general maritime law, civilian influence, exists in documents, exists in arbitration and exists in American conflict of law theory. A new lex mercatoria would also appear to exist in international commercial arbitration (particularly, maritime arbitration). It is being added to by reported rewards of arbitrators, which are based increasingly on international trade usages and custom and on general principles of law as recognized by international trade merchants. A DEFINITION OF CANADIAN MARITIME LAWConstitutional QuestionsHave to decide whether a conflict of law case is a constitutional law case or a conflict of laws case. I Constitution of Canada Charter of Rights Division of Powers II Federal and Provincial Powers s.91(10) Shipping and Navigation – has expanded s.92(13) Civil and Property Rights – has been reduced The Supreme Court has held that much of maritime law were federal, despite the fact that there was no law on the question (see above) For example, Court said that marine insurance was federal, even though there was no federal insurance regime but most of the provinces had their own regime, those provincial regimes became ultra vires and the jurisdiction of the Federal Court of Canada has expanded (also created by the 1993 MIA). This leads to a question of the fate of provincial direct action statutes and the need for federal law addressing this issue. Another example, the sale of ships was considered federal. Ships used to be also sold under provincial law; there is no federal sales act. The Supreme Court has expanded the definition of maritime law and made it very federally and common law orientated and expanded the jurisdiction of the federal court. Although authority is very strongly federal, you can go before either the federal or provincial court with maritime issues. this expanded definition of Canadian maritime law increased the jurisdiction of the federal court and made some provincial laws inoperative (e.g. Quebec provisions on marine insurance) – SCC decision in Triglav After Triglav federal government enacted Marine Insurance Act – What was lost when provincial statutes became inoperative? Some weak direct action provisions…(see above) provinces all had proportionate fault – this was done without any federal counterpart – especially for torts not involving two or more ships in a collision (with land) – people injured in these accidents could be subject to ancient divided damages rule or contributory negligence bar… 3 classical approached to damages contributory negligence – all provinces got rid of this by statute and now have proportionate fault divided damages – any fault equals 50% split – this was the maritime law approach proportionate fault (modern standard) see later…has caused confusion and injustice in federal law Conclusions from Tetley’s Article? The widened concept of Canadian maritime law has brought confusion and lack of certainty into practice of maritime law and commerce, as well as a flood of litigation and questions on jurisdiction, Issues of Provincial AuthorityProvincial authority with regards to proportionate fault in maritime torts for ship collisions involving one-ship has been curtailed by new Federal powers. [The Canada Shipping Act has imposed the principle of proportionate fault to govern the damages in collisions involving two or more ships, but there is no general fault statue on contributory negligence for one-ship torts even though all provinces had such legislation previously]. Plaintiffs in one-ship collisions in Canada are thus subject to ancient divided damages rule or old contributory negligence bars. Tetley - believes this causes a lacuna in the law of maritime tort in Canada and has caused confusion and injustice to Canadian citizens and others and led to a flood of litigation over constitutional issues. Maritime Conflict Rules – Federal or Provincial?In Tropwood, Laskin J.: its seems quite clear s.22(3) of the Federal Court Act envisaged that the Federal Court in dealing with a foreign ship or with claims arising on the high seas may find it necessary to consider the application of foreign law with regards to the cause of action before it. Conflict rules included in this body of law. The court expands definition after this case… From Buenos – Canadian maritime law conflict rules are the common law conflict rules of 1934 English law expanded and modified in Canadian case law and they applied uniformly across Canada. This includes Supreme Court 1994 in Tolofson v. Jensen where it ruled in favor of strict lex loci delicti principle. LaForest J. also suggests that new conflict rule for civil liability is Art. 3126 of the CCQ 1991 – the rule in Tolofson is for the ComL only. In light of the uniform characteristic of Canadian maritime law it is unclear whether Tolofson rule of lex loci delicti overrides the different lex loci delicti rule in 3126 CCQ in maritime law conflict cases arising in Quebec. Unlikely that Tolofson would be imposed on Quebec given new CCQ and principles of federalism. Directory: pubdocs -> files -> privateinternationallaw files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law privateinternationallaw -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? 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