By Darren Williams

One often hears the terms 'marine law', maritime law and admiralty law used interchangeably.  It is correct to say "marine law" is maritime law and vice versa, but admiralty law is more correctly used to describe the method or practice by which the principles of "marine law" are applied.

For example, Canadian maritime law provides unusual and powerful legal tools to pursue and defend claims, such in rem jurisdiction and the power of arresting a vessel – in this way maritime law is a tool box with legal saws and hammers.  It is admiralty law, including the various rules of procedure set out by the provincial and federal courts, that define how Canadian maritime law is applied – in this way admiralty law, like carpentry, refers to the practice of using the tools that Canadian maritime law provides.

Maritime law is the oldest actively practiced area of law in Canada. Maritime law arrived in Canada with the first European explorers and remains, in many respects, the same as it was hundreds of years ago.  Unlike areas of law such as criminal law and constitutional law, which are predominantly created by legislation and modified by the courts, maritime law is a broad historical collection of laws originating from  historical practice, international conventions, domestic and foreign legislation and court decisions from dozens of seafaring countries around the world.

In Canada for example, domestic legislation such as the Canada Shipping Act 2001 and the Marine Liability Act set out our Federal Government’s legal requirements that must be adhered to by Canadian vessels (and international vessels in Canadian waters).  But this legislation also incorporates international conventions such as the Athens Passenger Convention, the International Salvage Convention on the salvage of ships and cargo, and the Hague Convention on cargo damage claims.

Overlaying this domestic and foreign law are the decisions of Canadian and international courts (particularly Commonwealth courts) which attempt to interpret and apply these laws in a consistent way, effectively sewing together the patchwork of domestic and international laws into one area of law called "Canadian maritime law".

Baie-Comeau port re maritime lawCanada’s highest court, the Supreme Court of Canada, defined Canadian maritime law as having two major components.

Firstly is the admiralty law of England, received into Canada in 1934, which is now a body of federal law encompassing the common law principles of tort, contract and bailment, applied uniformly across the country.

The second, very broad component, includes matters falling within the modern context of "commerce and shipping" limited only by the constitutional division of power in Canada’s Constitution.

This definition, while necessary for lawyers and judges, is not terribly helpful to introductory readers, except to the extent it highlights one important principle of maritime law: it is an area of law governed by federal law, and not the law of the Canada’s individual provinces.

When the Canadian Constitution was written, law-makers gave exclusive jurisdiction over matters involving  "navigation and shipping" to the federal government, rather than the individual provinces. This meant that although provincial courts could apply federal laws that relate to navigation (for example in British Columbia, the Provincial Court and the B.C. Supreme Court can apply the Canada Shipping Act 2001), the provinces could not legislate on matters directly relating to  navigation and shipping.

In large part, this is because of Canada’s geography. The provinces share a vast network of rivers and lakes and coastline making it easy and necessary for vessels to travel across provincial boundaries.  By making Canadian maritime law uniform across the country advantage is not had, nor  prejudice suffered, because a vessel moves from one province to the other.  This is similar to the federal jurisdiction over criminal law, which is uniform across Canada and prevents people receiving more, or less, favourable treatment  in one province than the other. In this way, uniformity is a key principle in Canadian maritime law.

To say that the Federal government has exclusive jurisdiction over navigation and shipping however does not mean that the provincial courts do not play a large role in defining and applying Canadian maritime law.  All provincial courts can apply Canadian maritime law and the resulting decisions form part of the common marine law.  For example, a person charged with carelessly operating a vessel can be charged under the Canada Shipping Act 2001 and be tried in a Provincial Court and confined in a provincial jail, or a dispute between creditors and a bankrupt vessel owner under the Bankruptcy and Insolvency Act may be heard (in fact, must be heard) in provincial superior court.   Indeed, in the vast majority of marine cases, litigants have a choice of whether to have their dispute addressed by a provincial court or the Federal Court of Canada.

The types of maritime law disputes that can be addressed by these courts is vast and is often determined not as much by who is involved, but what is the subject of the dispute.

For example,  a shipment of farming equipment will be subject to Canadian maritime law if it damaged in the course of shipment that is connected to  the ocean, if even if the damage occurs on a train in the middle of the Canadian prairie.

Similarly, a vessel  being built high in the mountains at the head of a river will be subject to Canadian maritime law.

The subject of the dispute need not be a vessel or be related to the ocean to be subject to Canadian maritime law.  In the right circumstances, a dispute involving a shipment of cheese, or ball bearings for an airplane engine can be governed by maritime law.

How the court applies Canadian maritime law to these disputes involves many unique legal principles and practices.  For example,  much of maritime law involves the use of the court’s in rem jurisdiction, as opposed to more common legal disputes that are in personam.

An in personam claim is one where a person claims against one another person (including a corporation), whereas an in rem claim is where a person claims against an object, often a vessel or its cargo.  In other words a vessel, or for example its cargo of cheese or ball bearings, may be sued as if it were  person.  This is useful because all too often in claims involving vessels or cargo the owner of the vessel or cargo cannot be located; suing the vessel allows a person to get a remedy in the absence of the owner.  In this way, in rem jurisdiction is an important principle in maritime law.

While there are too many principles in maritime law to touch on this introductory article, one last defining principle is that of the right of arrest of a vessel (or its cargo).

Arrest is the most powerful remedy available in maritime law and perhaps in all of civil litigation.

Arrest of a vessel prevents it from being moved and provides security for a claim against the vessel.  Unlike an injunction, which is more common and also often used to prevent a person from disposing of an item, the test for obtaining an arrest warrant from the court is very low,  generally requiring only that the claim against the item be one in which falls within Canadian maritime law, and that the owner of the item at the time of the arrest is the same owner of the item as when the claim arose.  This topic will be more fully explained in future articles.

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