Cutting the apron strings
David Marler, of Montreal-based Marler & Associates, charts the development of Canada's maritime legislation and the related jurisdiction of its federal court
UNTIL recently, where maritime legislation and jurisdiction was concerned, Canada relied upon English statutes, precedent and procedure. In the last thirty years, however, it has stretched the umbilical cord which still attaches it to Mother Britain.
In 1867, with the passage of the British North America Act (BNA Act), an act of the imperial parliament of Westminster, Canada was granted the right to establish federal and provincial parliaments, each as sovereign in its own sphere of jurisdiction as the imperial parliament itself. However, other imperial statutes, particularly the Colonial Laws Validity Act of 1865, disallowed the colonies and dominions, as they were then called, from enacting any law in the maritime field that would be repugnant to a UK statute.
As a result, until the passage of the Statute of Westminster in 1931, Canadian maritime statutes were largely based on British models. For example, the first Canada Shipping Act of 1906 was based on the British Merchant Shipping Act of 1869.
The Statute of Westminster was therefore the second major milestone on Canada's path to independence. It repealed the Colonial Laws Validity Act of 1865 and declared that no law passed by a dominion parliament would be void or inoperative on the grounds of it being repugnant to a British statute. The Statute of Westminster also had the effect of allowing Canada to determine the jurisdiction of its own admiralty courts. Despite this, Canada elected to align its jurisdiction with that of the High Court of Justice in England. Section 18(1) of Canada's Admiralty Act of 1934 concluded with: "[jurisdiction] be over like places, persons, matters and things as the Admiralty jurisdiction now possessed by the High Court of Justice in England, whether existing by virtue of any statute or otherwise, and be exercised by the Court in like manner and to as full an extent as by such High Court."
And so it remained until the latter half of the twentieth century.
The first major Canadian initiative which defined its own maritime existence was the Federal Court Act of 1971. The Act granted jurisdiction to that court (Section 22(1)) in respect of any judicial relief or remedy "sought under or by virtue of Canadian maritime law". Canadian maritime law is defined by Section 2 of the Act as the jurisdiction previously administered by Canada's Admiralty Court or the jurisdiction which would have been administered had it had "unlimited jurisdiction in relation to maritime and admiralty matters".
This led to a litigious feast as attempts were made to define the phrase "maritime and admiralty matters". This definition is important by virtue of Canada being a federal state and certain provinces, such as Quebec, jealously guarding their exclusive rights to pass legislation in respect of property and civil rights, in other words the day-to-day dealings between persons, commercial or otherwise. The relevant assignment to the federal parliament by the BNA Act is of "navigation and shipping" but that term did not receive much judicial consideration in the first hundred years of Canada's parliamentary independence.
The next major development in Canadian constitutional history, although not directly related to maritime law, was what has been called the "repatriation" of the Canadian constitution. This denotes that the BNA Act could only be amended by the parliament which enacted it - the parliament of Westminster. This contradicted the belief by most Canadians that they had become legislatively independent of the British Crown in 1867. The solution was the repealing by the British Parliament of the BNA Act and the adoption, by the Canadian government, of an identical statute entitled the Constitution Act 1982.
Turning now to Canadian legislative initiatives in the area of maritime law, the most important enactments have been:
- the adoption in 1993 of the Hague-Visby Rules and, potentially, the Hamburg Rules,
- the passing of the Marine Insurance Act in 1993, and most recently and perhaps importantly,
- the enactment of the Marine Liability Act in 2001.
The adoption in 1993 of the Hague-Visby Rules and, potentially, the Hamburg Rules has, in fact, been superseded by the Marine Liability Act (MLA), which is designed to be a compendium of all Canadian laws relating to the liability of shipowners and marine carriers. The MLA draws its content from existing Canadian legislation and the adoption of various international conventions pertaining to liability such as the Hague-Visby and, potentially, the Hamburg Rules, the Convention on Limitation of Liability for Maritime Claims 1976, as amended in 1996, the Athens Convention 1974, as amended in 1990, and the International Convention on Civil Liability for Oil Pollution Damage 1969, as amended in 1976 and 1992.
The Hamburg Rules have only been provisionally adopted and will not come into force until the minister of transport of the Canadian government decides they should replace the Hague-Visby Rules. The minister is required by Section 44 of the MLA to make such a decision before January 1, 2005, and every five years thereafter. It should be noted, however, that section 46 of the MLA adopts the essence of the principles of Sections 21 and 22 of the Hamburg Rules relating to jurisdiction clauses in contracts for the carriage of goods by water, evidenced by bills of lading.
With regard to the Athens Convention, which is adopted by Sections 35-40 of the MLA, one important Canadian initiative to note is the definition of what constitutes a "ship". This definition has been extended to include, "any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion and whether seagoing or not." This extension will no doubt cause numerous problems calling for judicial interpretation and will, again, impact upon the already confused state of the interaction of provincial and federal law matters pertaining to the rental and use of pleasure craft in Canadian inland waters. For example, the Canadian equivalent to punting on the Thames is hiring a canoe for a paddle on a Laurentian lake. It would seem that such activities, if involving a passenger, will be covered in Canada by the Athens Convention.
Little needs to be said regarding the Marine Insurance Act as it is essentially a copy of the British Marine Insurance Act of 1906. However, it yet again shows reluctance by Canadians to be bold in the adoption of maritime legislation, preferring to adopt, as in the case of the Constitution Act, existing British legislation. As a result, amendments to customise the laws to meet Canada's needs are left to undetermined future dates.
The final point to be made concerns the Canada Shipping Act. First adopted in 1906 and subsequently amended on numerous occasions, the Act is now, by virtue of the MLA, stripped of virtually all references to the liability of shipowners and carriers.
One thing often queried is the significance of the letters QC (Queen's Counsel) after the names of Canadian lawyers. Firstly, Canada's legal profession is unified in the sense that there is no distinction between those who plead and those who do not (barristers and solicitors) - we are all just lawyers. Secondly, as with all things Canadian, it depends on whether you are in the federal or provincial sphere. Canada's bar associations are linked to various provinces, most of which have ceased to grant the QC. Previously, QCs were handed out to lawyers who had reached a certain age and had not overly offended the political party in power in that particular province. However, the federal government continues to hand out QCs to lawyers who have rendered a particular service to the party in power.
Much of Canada's legal activity, both political and juridical, is tinged, and to some degree dictated, by the question of what is federal and what is provincial. Whilst this leads to debates, often over matters of little consequence, the federal system was designed to protect the cultural and social autonomies of Canada's various regions, particularly those of Quebec, where over eighty per cent of the population is of French origin. Whether the Canadian federal system actually achieves this end, within the context of things maritime or otherwise, is, as they say, a good question.