Tetley (2002) introduction to conflict of laws 5
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- Subsequent Broadening of Definition of Canadian Maritime Law
- Ontario AG v. Pembina Explorations [1989] SCC
- Whitbread v. Walley [1990] SCC
- Monk Corporation v. Island Fertilizers [1991] SCC
- Newtern Ltd v. MYS Budyonnogo [1992] FC
- National Bank Leasing v. Merlac Marine [1992] FC
- Northeast Marine Services v. Atlantic Pilotage Authority [1991] FC
English Admiralty LawEnglish Admiralty Law as of 1934: Frozen or not? McIntyre J. said Canadian maritime law included English Admiralty Law (English common law of contracts/torts/bailment) as received in 1934 and modified by Canadian jurisprudence. The English law component of Canada's maritime law was therefore seen as having been frozen in 1934. So McIntyre seemed to say that English law was frozen in 1934 but then cited decisions from well after WWII, contrary to his statement that 1934 English common law rules could only be modified by subsequent Canadian case law. Date of reception – McIntyre’s judgment fails to explain why 1934 rather than 1890 was the date English Admiralty Law was received into Canadian law. The Supreme Court now considers the matter settled, the relevant date being 1934. Tropwood – Supreme Court noted the repeal of 1891 fed statute in England, but that the body of admiralty law introduced into Canada in 1891 remained in force after 1934 and continued in 1971 as part of Canadian maritime law pursuant to s.2 & 42 of Federal Court Act. L’Heureux-Dube in Chartwell Shipping v. QNS Paper [1989] SCC upholds civilian origin in maritime law applied by English High Ct of Admiralty and at reception in 1934. She notes the CCQ as a reliable source of civil law principles common to all maritime law. Tetley – reiterates that Canadian Maritime law flows definitively from European civil law which underlies English maritime law. must understand civilian nature of maritime law to understand effect of Buenos Aires Canadian Maritime Law: English Common Law or English Maritime Law? Buenos Aires declared Maritime law as English Admiralty law of 1934 incorporated into Canada. Tetley - says it also includes 1890 English Admiralty law. See also R. v. Canadian Vickers Ltd [1978] Fed Ct. "..the substantive law administered by the Court on admiralty side having been established by fed statute in 1891 had become part of the law of Canada…" Supreme Court held that maritime law was fundamentally English common law plus a few principles of admiralty. Tetley - this is inconsistent with older Canadian decisions which held Canadian Maritime law to be rooted in English maritime law [a body of rules distinct from common law of England]. See generally: Robillard v. the Sailing Sloop St. Roch and Charland; Gaetano and Maria - "the law which is administered in the Admiralty Ct of England is the English Maritime law and not the ordinary municipal law of the country." See also: National Gypsum Co Inc. v. Northern Sales Ltd: "the 1924 statute, s.18(1) conferred on the Exchequer Court of Canada the same admiralty jurisdiction as that exercised by the High Court of Justice in England - while all jurisdiction formerly vested in the High Court of Admiralty now forms part of the Admiralty jurisdiction of the High Court of Justice the law administered is still the English Maritime law." See also: R v. Canadian Vickers Ltd [1978] Fed Ct: "it was English maritime law that continued under 1934 statute." Subsequent Broadening of Definition of Canadian Maritime LawWho can create new common law in Canadian maritime cases? Revisit North Shore Paper where Federal jurisdiction to any s.101 court, required federal law and common law to be applicable and existing. This seemed to mean that no new federal common law created by s.101 court such as the Federal Court could be created, yet Buenos Aires seemed to suggest that admiralty and common law incorporated from England into Canadian maritime law are expanded by Canadian jurisprudence. Tetley – There is a conflict if the Federal Court is be precluded from modifying or expanding such principles in new ways or creating new principles and is restricted to 'applicable and existing' principles. If only non s.101 courts [provincial, territorial or inferior courts whose admiralty is concurrent with Federal Court] or Supreme Court can validly create new common law, this would mean that despite the fact that the Federal Court was the court of first instance for most admiralty litigation, ongoing modification is impeded. These cases depict the broad definition of Canadian maritime law, encompassing many issues and fact patterns. Ontario AG v. Pembina Explorations [1989] SCCHolding: Net of a fishing vessel damaged by submerged unmarked well in Lake Erie is admiralty law. Chartwell Shipping [1989] SCCHolding: Admiralty law includes common law of agency, applicable to a contract written in Quebec between Quebec shipping agent and Quebec stevedore [despite the fact in England this would be a commercial contract and not admiralty jurisdiction]. Whitbread v. Walley [1990] SCCHolding: Personal injury suit arising from injuries sustained on a pleasure craft. Federal unlimited jurisdiction in relation to maritime and admiralty matters includes tortious liability resulting from navigation of all classes of vessels including pleasure craft in high seas, and inland navigable waterways [even wholly within a province]. NB – Problem here is that if Canadian maritime law is English ComL of tort as in 1934, the old contributory negligence bar would be applied because it was not abolished until 1945. This is incompatible with proportionate fault of the CCQ. Monk Corporation v. Island Fertilizers [1991] SCCHolding: A contract of sale that called upon the buyer and seller in the normal and historic course of trade to make arrangements for the delivery and reception of cargo is said to be maritime law including claims for a) demurrage b) delivery of excess cargo c) the cost of shore cranes to unload the cargo. L’Hereux-Dube dissented saying that there wasn't an 'integral connection' and the law governing contract of the sales of goods act should have applied instead as it was a purely provincial matter. Little guidance has arisen from the litigation attempting to decide what and what is not governed by Canadian Maritime law. The integral connection test from Buenos Aires has been applied to claims in contract and tort leading to controversial decisions over Canadian Maritime law and Federal Court jurisdiction. The key is to determine whether the claim in question is “integrally connected to maritime matters.” Newtern Ltd v. MYS Budyonnogo [1992] FCHolding: Is the spray painting of a moored vessel, when it gets on to cars stored nearby, integrally enough connected to Navigation and Shipping? Should provincial negligence laws have applied? Drifting paint was held to be integrally connected to maritime matters because the job was done by the ship's crew in relation to the ship under the direction of its master and for the purpose of enabling the ship to carry on navigation operations. National Bank Leasing v. Merlac Marine [1992] FCHolding: The mere fact that a claim involves matters of contract or tort does not necessarily prevent it from being maritime law if integrally connected. Northeast Marine Services v. Atlantic Pilotage Authority [1991] FCHolding: Pilot boat services -- even though there was no actual agreement between the plaintiff and the defendant, the action was held to be an agreement relating to the 'use and hire of a ship' and so under Federal Court jurisdiction. Tetley's Main Conclusions: Buenos Aires compounded confusion over jurisdiction by 1) Substituting 1934 for 1890 as the date of reception of English maritime law; 2) Upholding the Himalayan clause when English law should have been frozen at 1934; upholding on the basis of Eng decisions of 60s, 70s, 80s (or Canadian precedents founded on that same jurisprudence); 3) Trying to say that Canadian Maritime law was primarily English common law of 1934; fails to recognize the historical reality that English maritime law (like all mar law) has civilian origins 4) Quebec North Shore paper rule prohibited major alteration by the Fed Ct of common law principles in Canadian Maritime law unless 'applicable and existing', even though Buenos Aires said this is where modification could come from 5) There now exists too wide an ambit for unlimited jurisdiction in relation to maritime and admiralty matters -- making it difficult to ascertain what is 'integrally' linked. In a federal state uniform law is desirable but should not encroach too far and upset constitutional balance between federation and provinces. There is ongoing ambiguity as to where Quebec fits. Quebec North Shore created some problems Is it frozen in 1934 and subject only by Canadian courts or is other maritime law concluded? Is it common law choice in contract or bailment or is it the civilian nature of English law? Is the common law content of Canadian law not open to change by the Federal court? Marine Liability Act, S.C. 2001 s.5 – personal injuries and fatalities – applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law, as defined in the Federal Court Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping… s.16 – apportionment of liability – applies same as above These seemed to be in answer to the rulings in Ordon v. Grail and Bow Valley Husky – see below with respect to apportionment of liability… 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? How does customary law relate to int’l law? Download 0.88 Mb. Share with your friends:
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