International maritime conventions
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INTERNATIONAL MARITIME CONVENTIONS Winter 2006 Julien Morissette Topic One: Public and Private Maritime Law 3 Canadian Maritime Law 3 ITO – International Terminal Operators v. Miida Electronics (1986), p. 11 4 Chartwell Shipping v. Q.N.S. Paper Co. (1989), p. 17 4 Ordon v. Grail (1998), p. 20 4 What is a Convention? 4 Law of the sea 5
The An Xin Jiang (2001), p.40 6 Federal Court Act, p. 9 7
The Bold Buccleugh (1851), p. 53 8 The Heinrich Bjorn (1885), p. 64 9 Mount Royal Walsh v. Jensen Star (1990), p. 77 9 Claims that rise above a mortgage 10 The ranking of claims 11 Topic Four: Collisions and Limitation of Liability 12 Collisions Rules (p. 111) and the Collision Convention (p. 126) 12 R. v. Stogdale (1996), p. 120 13 The Pennsylvania (UK: 1870), p. 129; (US: 1873), p. 132 13 Effect of the Hague-Visby Rules 14 The Wagon Mound (No. 1: 1961, p. 142); (No. 2: 1967, p. 143) 15 Limitations of liability 15 The Agean Sea (1998), p. 156 16 The Tojo Maru (1972), p. 223 16
The Kafiristan (1938), p. 191 18 The Roxana Bank (2004), p. 197 18 The subject of salvage 19 Early Recovered Resources v. Gulf Log Salvage (2005), p. 200 19 Brooks Aviation v. Boeing SB-17G (2005), p. 210 19 Who can render the services? 19 Salvage agreements 20 Duties of the parties 20 The salvage conventions 20 SCOPIC 21 Wreck 22
The Lusitania (1986), p. 243 22 Topic Six: General Average and the York-Antwerp Rules 22 The York-Antwerp Rules (p. 251) 23 The Bijela (1994), p. 256 24
Southport v. Esso Petroleum Co. (1954), p. 349 25 The Queen v. Sun Diamond (1964), p. 350 25 International Convention on Civil Liability for Oil Pollution Damage 26 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 26 Marine Liability Act (p. 382) 27 Penal Liability 28 R v. Sault Ste Marie (1978), p. 395 29 Enforcement 29 Topic Seven: Marine Insurance and Average 31 January 4, 2006 Topic One: Public and Private Maritime Law Canadian Maritime Law 
In the past, maritime law was just civil law. International law was generally civilian, but our law is UK maritime law which is a mix of CVL and CL. Historically, CL courts prevailed in “UK fight”: they used prohibition to take jurisdiction which led to blend of CL and CVL that we have today. Maritime law: whole “circle” and includes anything to do with a ship; including criminal law. Admiralty law: law administered by special admiralty courts. Admiralty courts, at the time when law was all CVL, have the whole jurisdiction. When this changed it kept only jurisdiction on CVL matters. That is why we distinguish between maritime and admiralty law (mainly an academic exercise in the UK, as courts merged in 1875). For ex., by 1875, marine insurance was governed by CL rules. However, we have a specialized court (Federal Court) and normal courts, so the question of jurisdiction is very important for Canada, Australia, etc. given our federal structure. First text in the CB: oldest case in an admiralty court. During the 100 Years’ War, England won its first battle at sea and created the admiralty court. In this case, a French man was sued by an English man because the French man had taken/captured ship during the war. Reclaimed but never given back to English man. The English man wanted compensation from French man. But a treaty was signed saying that no civil actions would be taken so the French man said suit cannot go forward. The English man said that the ship was taken during a truce and therefore unlawful. The admiralty court initially didn’t know what to do, but the French man eventually lost because the English man showed that it was captured in a truce Second text in the CB: Unlawful for admiralty court to meddle with anything done on land. Gurnsey v. Henson was a fight that lasted in CL and Admiralty courts for years. Then came the agreement of 1575. In the 1500’s, CL courts started encroaching on admiralty courts powers. Henry VIII gave those powers back (wanted big English naval power), but it didn’t last: when he was gone an agreement was made – no more prohibitions on certain things, trade offs. A similar 1633 agreement didn’t last. In the late 1600’s (James II), the Admiral changed tactics and went to parliament for bills to preserve its powers. It didn’t work CL courts had won by end of the 1600’s and won lions share of responsibility, the jurisdiction of admiralty courts did not cover all of admiralty / maritime law. Eventually some jurisdiction was given back (1840, 1861). 1840: gave back jurisdiction over mortgage, wages, salvage. Canadian History:
Maritime law today can be anything to do with a ship: pollution, carriage, insurance, contracts, acts of war, etc. The sphere of activity is difficult to define, beyond shipping. Note that judges can tweak maritime law, even if the origin is potentially civilian. Application is uniform regardless of the origin. ITO – International Terminal Operators v. Miida Electronics (1986), p. 11 A shipload of calculators was shipped to Montreal; put in warehouse on shore and calculators were stolen (after negligence of security guard). According to the SCC this is maritime law. It is part of shipping as a warehouse is essential element of shipping. The SCC said for FC to have jurisdiction there were two requirements: a) statutory grant; b) law to be applied. In shipping there was a whole body of law assigned to the Federal Court. Note: A statutory grant is not enough, one needs a body of law to apply. Chartwell Shipping v. Q.N.S. Paper Co. (1989), p. 17 This case is an illustration of differences between CVL and CL. Ships agents in Montreal ordered service from company on a ship for which they were agents. The bill was not paid, so company sued the agent (agent must identify principle in CVL, but very different in CL so which is it?). The SCC decided CL applied, so the agent was not liable. Ordon v. Grail (1998), p. 20 Series of collisions between pleasure craft. The question is who can sue and what was the time limit. Provinces had limitation acts trying to modernize who could sue for fatal injury but the federal government didn’t. So if it’s federal law who can sue? The SCC decided that provincial law has no application in maritime law, period. This settles it. The judge who hears the case is hearing it as maritime law but can change the law incrementally if appropriate (judicial discretion). This is how you can adopt/adjust this law just like CL judges do otherwise. What is a Convention? There is a need to harmonize maritime law. By statute: done with legislative authority. By convention: agreement between sovereign states. Conventions are…
For a convention to become law internally in Canada it must be transformed – so it usually takes a statute to give effect to convention. This doesn’t come with ratification (ex. UNCLOS), which is sometimes not necessary because it was customary law… Law of the sea arguably counts as maritime law, but we aren’t looking at this because we are focusing more on private law. January 11 Law of the sea The law of the sea is codified in the UN Convention on the Law of the Seas (1982), ratified in 2004 (probably not done earlier due to a mistake). The Oceans Act (1996, p. 28) includes many of its aspects. Includes much useful vocabulary: territorial sea (12 miles), contiguous zone (12 more, can force ships out, the US does it aggressively), economic zone (200 miles or limit of continental shelf, with a max. of 450 miles) which have the same shape as the coast at the low water-mark. All waters inside the low-watermark or baseline are in the country (ex. lakes). The SCC decided in 1967 that the federal government owns all the ‘land’ below the baseline (oil drilling!), the USSC decided the same thing but the Submerged Lands Act subsequently gave 3 miles to each state (can get more if had more before joining the Union, Texas proved it). The law of the flag (ship registration, it defines which law applies on board everywhere, unless there is conflicting legislation) is also part of public maritime law, see the Canada Shipping Act (p. 31, every ship has 64 shares). No ship can have no flag or visible port of registry (piracy!), as it can be lawfully confiscated by any government. Ships are 24/7 operations, which are financed like other enterprises with mortgages registered in the flag State, which includes power of sale, etc. Paul Martin and Canada Steamship Lines registers ships all over the world because there is only so much shipping work in Canada. At the international level, the market is very highly competitive and cost-cutting is the norm, so flags like Panama and Liberia are attractive because they allow international hiring, etc. Topic Two: Ships and the Arrest of Ships The arrest of ships is very important to the functioning of maritime law. Ships are movables which can quickly disappear, although less so today. Ship arrest is a way to secure a claim. This has always been important in the admiralty court. Previously, the ship owner personally or any goods belonging to the ship owner could be arrested. At the end of the day, admiralty arrests were limited to ships and sometimes cargo. When a ship is arrested, the court orders it to stay put. This gets the attention of the owner as this will make her lose money. Owners may give a substitute security such as cash, a bank guarantee or letter of undertaking (offered by liability insurers as part of policies, more common as bank guarantees are expensive). The vessel will then be released from arrest, if there is a bank guarantee or cash (or other rare security), but not when there is a letter of undertaking (unless the plaintiff is convinced). The importance of arrest is execution of a potential judgement. Fictionally, the defendant ship submits to the jurisdiction when it is arrested. Often however, arrest doesn’t happen, a threat works to obtain a letter of undertaking. There are differences between arrest (Federal Court) and ‘seizure before judgment’ (CCP, Superior Court):
An arrest has to be affixed to the ship and gives a certain standing to the arrestor. In the 1970’s, Lord Denning invented seizure before judgement which did not exist in CL previously (Mareva injunction), but it is still not as good as arrest. What one arrests must always be the subject of the action. Ex.: If the ship hits my dock negligently, the ship is arrested. This is a simple ex., but sometimes more complicated. The An Xin Jiang (2001), p.40 That ship contested being the subject of the action. The Federal Court of Appeal decided that neither ship nor its cargo (dynamite) could be arrested because they were not the subject of the action (the client who didn’t pay was). It’s possible to counter-sue for wrongful arrest, but very hard to get damages (mitigation like a letter of undertaking, there can be a counter-motion 5 minutes later).
If one has an action against the ship, one can arrest. Action in rem and arrest are not identical but go together: one is the substantive right, the other one is the procedure to vindicate it. Courts have struggled with this. Formerly (16th-17th C.), in admiralty courts, actions in personam provided security by jailing of the owner until he gave a security! But these remedies disappeared in the UK in the late 1700’s. Canada inherited this. By 1875 in the UK, admiralty courts could only grant remedies in rem. Some of these powers remained in the US however (independent in 1776): not arresting the person, but any of his other assets can be ‘attached’ if the person is not a US citizen (similar to old UK rule). According to O’Connor and Tetley, attachment still exists in Canada. From 1775 to 1875, the admiralty courts of Quebec City and Halifax allowed attachment and arguably it has subsisted in Canada if not in the UK. Canada got its law not in 1875 but in 1764 when the first admiralty court was created. Officially, there is no ‘attachment’ in Canada, just the true arrest of the vessel (sometimes, a sister ship) in rem. It is not always necessary to arrest or to threaten it. But it’s an excellent way to get security and get the ship to submit to the jurisdiction of the Federal Court, which requires the action to be served (within 60 days) and not just filed. Arrest is multi-purpose: security of payment, service, clear jurisdiction. “Security is the name of the game.” - O’Connor. When a ship is under arrest, there is a document, a court order forbidding it from leaving. If necessary, it can be enforced by the police, navy or coast guard, or even by another country’s admiralty court. Federal Court Act, p. 9 The Federal Court Act (s. 22) gives the Federal Court and superior courts concurrent jurisdiction over ‘the big’ maritime law, although superior courts cannot entertain actions in rem. This explains why 99.999% of cases go to the Federal Court. One may always sue in personam (s. 43), which is the only thing one can do at the superior court. Not every claim may be exercized in rem (s. 43.3) unless a two-pronged test (partially from case law) is met:
Otherwise, one may sue in personam (charterer) but not in rem. This is fairly standard worldwide. Side note: There are three types of chartering, time-chartering (defined time), voyage-chartering (specific voyage) and demise- or bareboat-chartering (method of financing, rent-to-own). The actions which are always possible in rem (ex. wage, damage done by boat, salvage) are the former core of admiralty, which is not necessarily logical. An in rem action is required to arrest a ship. One must always ask the question of possibility to sue in rem. The sub-sections of s. 2 we identified with an L are subject to a maritime lien, which arises by law. This comes from CVL, idea of ‘priorité’ or privilege (CL only knows possessory liens). A maritime lien is a secured right which requires no possession. It gives a right against the ship. In those cases, one may always sue in rem and this lien stays with the ship from owner to owner without notice or registration. “It’s silent, and it’s deadly.” The lien is a guarantee, but is not required to sue in rem, as it is only for certain classes of actions. The only actual use of a lien is when a ship is sold due to bankruptcy: the lien-holder gets paid before other creditors, including mortgagors. Courts have difficulty identifying the relationship between in rem, arrest and lien. Especially for the lien, is it a procedural or a substantive right? Can a lien created in China be enforced in Canada? Is a foreign maritime lien not creatable in Canada enforceable here? Courts have struggled with this for over 100 years. In the UK, foreign liens are not enforced if not creatable in the UK. In the US, it is the opposite, a lien is a substantive right. In Canada, we came down on the side of the US after some debate. January 18 In an action in personam, one may not get paid, but if one gets paid, it can be for the entire amount. In an action in rem, it will depend on the value of the ship, one cannot get more. An action may be split however. One should not overstate the importance of this distinction. It’s about execution, not about the law. Answers the question: If I win, will I be paid? Not important in deciding whether one wins or not. It is procedure only, in a sense. Topic Three: Maritime Liens and Claims A maritime lien yields an action in rem and in personam (see Federal Court Act, p. 9-10). However, a test has to be met in some (less important) cases to sue in rem (no lien):
Maritime liens were the core of the restricted admiralty jurisdiction in the UK. Main ones: wages, salvage, damage (usually by collision or personal injury). Also: created by statute (master of a ship for disbursements, bottomry, respondentia [last 2 a bond to get money to repair a ship before communication was possible, respondentia only to fix up the cargo, bottomry on the hull and the cargo, don’t exist anymore with modern communications]). A maritime lien is a secured right over a thing, like a privilège in civil law. It arises without any need for possession or registration. It stays with the ship even if the ship is sold. There is no time bar, except for the equitable remedy of laches (if the court finds it has taken too long to take action, extinguished by delay at the court’s discretion). UK courts (and US ones as well) struggled with the notion of maritime liens in the 1800’s. Admiralty jurisdiction was re-expanded starting in 1840 and then in 1861. The question was whether these new objects were true maritime liens or not. One ex. is claim for necessaries (supplies sold on land for a ship, returned to admiralty in 1840). The Bold Buccleugh (1851), p. 53 The Privy Council muddled the topic even though it did not have to decide (collision case with a maritime lien). For ex., it said that a maritime lien is the foundation of action in rem. This is debatable and probably false, because the idea of maritime lien was invented in the US in 1831 (The Nestor (1830), p. 49). This appeared true because admiralty had been reduced to core subjects which today happen to be maritime liens. They also said that a maritime lien exists every time an action in rem is possible. That’s also wrong, le petit bout de la lorgnette… It did not help that admiralty judgements were not reported until 1800.
This brought the question of whether a lien is a procedural or substantive right. UK courts also struggled with this. Formerly, in an in rem proceeding, only the security in the ship was payable even if damage was superior (lawyers, maybe owners appeared only in name of the ship). And people could often not sue in personam because the owner could not be served (only the ship). Courts decided that if the owner came to defend, the action would be in rem and in personam (The Dictator, 1872, this is the rule in Canada on this point even if it stems from a mistake, see Costal Equipment v. C. Omer (1970), p. ix). Both were just procedural rights. This has been criticized in the US and Canada because it reduces the importance of a maritime lien. In Canada, we have taken the exact opposite track: a maritime lien is a substantive right (same in the US, except that more actions in rem involve a maritime lien). It is a true privilège that one has. A true maritime lien obtained elsewhere is enforceable in Canada, even if it could not have been creatable in Canada (reverse in the UK). See The Ioannis Daskalelis (1974), p. 58 for Canada and The Halcyon Isle (1981), p. 59 for the UK (3-2 decision). In The Halcyon Isle, Lord Diplock was very critical of Canada’s position. In a way, the UK position is fairer because everyone on one territory gets the same treatment. Transport Canada has recently recommended that ship suppliers be given a maritime lien. Ship suppliers in Canada used a clause for US law to apply in their contracts. It was decided by the FCA that this did not give them a maritime lien as a maritime lien only arises from law and not from contract (see Imperial Oil v. Petromar (2002), p. ix and contra Kirgan Holdings v. The Panamax Leader (2002), p. ix in outline). This is not even possible in the US. In CL, a lien normally means a possessory lien (droit de rétention in CVL), which disappears if possession is relinquished, but this is not the case in maritime law. It has however crept into ‘broad’ maritime law, for ex. for repairs made to a ship on land or a salvor while he is holding the ship (doesn’t need it because also has a maritime lien). In Canada, a shipyard can file an action in rem, whereas this is impossible in the UK without losing the possessory lien (seen as giving up possession). In rem actions include other things than maritime liens. Tetley calls that category ‘quasi-maritime liens’ or they are often called ‘statutory rights in rem’. See the Federal Court Act, s. 22(2)a,b,c,q,s (p. 9). Some aspects of a maritime lien, but not all of them: can take an action if the ship is sold, but no priority over a mortgagor. There are other rights which have nothing to do with maritime law, notably in the Income Tax Act or penal fines. There, the government grants itself a right to be paid, even before maritime liens. Most other claims come under 22(2)m of the Federal Court Act: goods, materials or services for the ship. Here, there is no maritime (or quasi-maritime) lien. There is only a statutory right in rem, if the test in 43(3) is met. The Heinrich Bjorn (1885), p. 64 The judge said that new rights of admiralty courts included the ancient right of attachment (to arrest someone). That is wrong. It took until The Beldis (1936), p. 70, for this to be corrected: that right had disappeared in 1780. In Quebec City, there had been an admiralty court since 1764 (and around 1700 under the French), in Halifax since around 1755 – so did the Canadian courts maintain these remedies? We don’t know the answer. Could it be used today based on the definition of Canadian maritime law? Possibly, if it were proved that this was an actual practice. Mount Royal Walsh v. Jensen Star (1990), p. 77 Necessaries were given to a ship in Montreal. After part of the repairs, the ship was sold. The new owner chartered the ship back to the previous owner. At the end, the first owner / demise charterer had no money. Was ownership for 2 of the 4 weeks sufficient for him to be considered owner for the whole period? The FCA said no, unlike what was decided in the US for demise charterers. The court also reiterated that 43(3) Federal Court Act involved a 2-part test. In this case, those making repairs got most of their claim: justice more than applying the law. The cases at p. 73 and 79 asked the question of the possibility of claiming in rem for supplying containers to ships: are they necessaries? In the UK (The River Rima (1998), p. 73) and the rest of Europe, courts had said no, but Canadian courts (Textainer Equipment Management v. Baltic Shipping (1994), p. 79) said yes. The logic is that without containers, the ships had no purpose. Claims that rise above a mortgage There are special non-maritime legislative privileges: income tax, criminal, port & harbour, pilotage legislation. There are also court costs, which are paid prior to distribution to lien-holders. One normally waits for a final judgement to sell a ship, unless it is deteriorating, owners are not acting and that there is an action in rem is uncontested. This involves costs: evaluators, commission for sale, publishing, managing tenders, related lawyer’s fees, etc. These are covered as this benefits all creditors. Courts usually allow crews to be paid upfront and repatriated, as they have a maritime lien. This can be done without a court order, but it is better, becomes part of ‘court costs’ (to preserve and sell the ship). After these, there are the true maritime liens:
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