11111

A Common Admiralty Law?

Over the next year the adoption (or non-adoption) of the Rotterdam Rules will substantially determine the shape of admiralty law over the next decades. The great Conventions, however, are just the most obvious element in an overall effort to bring global harmony to maritime law, a goal towards which those engaged in maritime trade have been striving since at least the time of the ancient Phoenicians.

Judges are part of this process, and in a common law, federal system such as Canada’s, Courts pay heed to the desire to harmonize both national and global law. In the wake of the Queen of the North disaster, the Supreme Court had to consider whether and how provincial law could be imported into an admiralty dispute to cure apparent gaps in Federal legislation. In so doing, they re-affirmed the seminal case of Ordon Estate v Grail, [1998] 3 SCR 437.

The Court began with the principle that uniform admiralty practice is intrinsically desirable, not only between provinces but also globally. In fact, most Canadian maritime law is the direct product of our obligations under various international conventions, and “the legal rights and obligations of those engaged in navigation and shipping should not arbitrarily change according to jurisdiction.” Importing provincial law risks that uniformity.

However, the point the Court was trying to determine was not one that was captured in our international obligations or in Federal legislation. This did not trouble the Court: in common law jurisdictions like Canada judges have long filled in gaps in the law. The Court confirmed that, in spite of the specific maritime jurisdiction afforded to Parliament over matters of admiralty, there was an evolving body of maritime common law as developed by Canadian Courts:

“Canadian maritime law is not static or frozen. The general principles established by this Court with respect to judicial reform of the law apply to the reform of Canadian maritime law, allowing development in the law where the appropriate criteria are met…”

The Court then laid out the process for resolving areas of confusion left by the absence of specific Federal legislation. First, it must be determined that the matter at issue is indeed one that falls within the exclusive Federal admiralty jurisdiction. If so, it then must be established that there is in fact no counterpart –either in federal legislation or in the common admiralty law – to the provincial statute on which the party seeks to rely.

If the gap truly exists, the Court must determine whether the policy areas is one that is suitable for judicial reform, based “not only the social, moral and economic fabric of Canadian society, but also the fabric of the broader international community of maritime states, including the desirability of achieving uniformity between jurisdictions in maritime law matters.”

Finally, and only after these tests have been met, the Court will engage in a constitutional analysis to determine whether the provincial statute can be applied to resolve the gap in federal legislation.

This entry was posted in Maritime + Transport Law and tagged , , , , . Bookmark the permalink.