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Maritime Law
McGill Faculty of Law
O'Connor, John

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:
– Post-1699 there was French admiralty court which applied ‘ordonnances de la marine’. When England took over, they called it an admiralty court.
– At conf

t 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…
– Like a treaty open for adoption for anyone who desires.
– Public law because done by states but can concern private law (think of alimony).

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.