To ask the question “what is maritime law in Canada” is to delve into hundreds of years of history spanning the globe, dealing with everything from piracy laws to the laws of international shipping and fishing, and oil and gas pollution, among a host of other issues and controversies that happen on the high seas. It harkens back to a hard time to imagine, the time before computers, air travel, phones, and all other technologies that have come together to truly globalize the world’s economy.
Before digital technologies tethered nations together electronically, before air travel ushered in the modern era of the global village in which we now live, it was international shipping and the world’s oceans that dominated the world of commerce and trade.
Maritime law and admiralty law, the closely related private and public bodies of law that govern the world’s seas and oceans and lakes and rivers, therefore, have evolved over the centuries and shaped by many forces: war, colonialism, imperialism, revolution, marine disasters such as the sinking of the Titanic, as well as modern technological advancements and the signing of international treaties among hundreds of nations.
The United Nations and the International Maritime Organization
With the establishment of the United Nations after the second world war, international maritime regulations soon after fell under the guise of the International Maritime Organization. Established in 1948, the IMO is a “specialized agency” under the United Nations that seeks to ensure that international shipping routes are both safe and secure, while also seeking to prevent ocean pollution due to global shipping activity. According to its website, the IMO has 175 members and holds an assembly meeting between those member states every two years.
When it was first established, the IMO set out to make international treaties and uniform legislation among its members related to marine safety and the prevention of ocean pollution. It took until the late 1970s to see widespread adoption of IMO-led regulations that it now seeks to modernize while trying to get as many nations as possible on board to adopt and uphold the agency’s mission, which it boasts that many of its “conventions” now cover nearly all of the world’s shipping activities.
Ship-based oil pollution
It was back in 1954 when the world saw a treaty among member states seeking to deal with the issue of ship-based oil pollution. Five years after the treaty’s adoption, it fell under the responsibility of the IMO. According to the agency, the shipping world was rocked by a disaster in 1967 involving an oil tanker called the Torrey Canyon. The tanker ran aground in the coastal waters of the United Kingdom, spilling more than 100,000 tons of oil, a catastrophic event that’s said to have awoken world governments to the growing threat of ocean-based pollution caused by international shipping activity.
After the Torey Canyon disaster, the IMO set out to adopt a host of different conventions to prevent marine pollution and better respond to shipping disasters involving oil and other harmful substances that poison the marine environment and its delicate ecosystems. Other maritime regulations under the IMO include rules preventing shipping companies and ocean-goers from using “harmful anti-fouling systems” and rules related to the management of potentially harmful substances and invasive species in ocean vessels’ ballast systems.
Uniform maritime regulations
The agency’s international scope is incredibly important for uniform maritime regulations, rather than a nation-by-nation patchwork of laws that the IMO claims would resemble “a maze of differing, often conflicting international laws.” As a hypothetical example, the International Maritime Organization points out that one country could require that lifeboats be made of steel while others may require a different material, such as glass-reinforced plastic. Without an international body to streamline and enforce maritime legislation and regulations, the IMO claims there would be a danger of some countries having much higher standards than others, potentially leading to some countries becoming “havens for sub-standard shipping.”
However, the UN agency merely adopts certain legislation surrounding maritime rules and regulations, while its member state governments are responsible for actually implementing the IMO’s rules. The International Maritime Organization, though, does seek to aid countries with developing economies in the field of maritime regulations through what it calls an “extensive technical co-operation program.
Preventing ocean pollution from oil or garbage
But the agency claims that preventing ocean pollution from oil or garbage or even sewage is only one piece of a larger puzzle. It also seeks to ensure the safety of international shipping routes and maintain healthy aquatic ecosystems through the establishment of marine protected areas that are home to hundreds of thousands of species of fish and other organisms.
According to the IMO, though, marine shipping remains an environmentally friendly method of transporting goods around the globe when the ratio of energy to cargo shipped is taken into account. That being said, the IMO is now also “energetically pursuing” legislation that would both limit and reduce the international shipping industry’s greenhouse gas emissions. These efforts include new energy efficiency standards for newly built vessels, and other measures mandating certain energy efficiency standards “for all ships.”
International Maritime Organization and Admiralty Jurisdiction
But the International Maritime Organization is not without its critics or controversies. On the “frequently asked questions” section of the agency’s website, for example, one of the questions is about how the IMO apparently adopts and aims for the “lowest common denominator” when it comes to marine safety regulations. In its own defence, the IMO points out that it tries to reach a consensus among member states when adopting new treaties and marine safety and pollution regulations.
The thinking behind this consensus-based approach, according to the IMO, is in recognition of a potential dilemma in dividing its member states about certain regulations. The agency says that a measure that gets, say, 51 percent of support would still have opposition from nearly half its membership while having “a major impact on” the global shipping industry. The danger of a majority rule rather than trying to seek broad and widespread support among the shipping world, the agency claims, would be the resulting division among the “maritime community.”
One of the most widely adopted and important treaties, which went through several iterations over the first half of the 20th century, is the convention for the Safety of Life at Sea, also called SOLAS for short. First signed in 1914 after the sinking of the Titanic, SOLAS now has more than 160 members and covers most of the world’s merchant vessels, remaining one of the most crucial international treaties ever adopted regarding the safety of marine merchant shipping vessels.
The Sinking of the Titanic and its Effect on Maritime Law
The Titanic disaster of 1912 highlighted how merchant shipping laws hadn’t kept pace with modern technological developments in ship design. Though it was famously touted as being unsinkable, the Titanic’s now infamous run-in with an iceberg in the North Atlantic saw the ship in less than three hours, killing more than 1,500 passengers and crew members. At the time, British merchant shipping laws didn’t require that vessels have enough lifeboats for every person on board.
The country’s shipping regulations, of course, were outdated by the time the Titanic set out for its ill-fated voyage, only covering ships up to 10,000 tons. The British Merchant Shipping Act dated back to 1894, and by the time the Titanic was built at more than 45,000 tons, ships were routinely being constructed with gross tonnages far exceeding the act’s scope.
Hopefully the Titanic had marine insurance
While the vessel only had enough lifeboats for about a third of its passengers and crew, they were unfortunately not designed for a mass-scale, ship-wide evacuation. The lifeboat system on the Titanic did not contemplate its sinking and planned only for the ship’s lifeboats to ferry passengers and crew to awaiting rescue ships, which didn’t help in the hours after the collision in the frigid waters of the North Atlantic, of course.
It was in 1914 when the SOLAS convention was adopted in response to the Titanic disaster and has been updated most recently in 1998, the main purpose of it being to give marine passengers and ships’ crew members a greater chance of surviving an ocean-based disaster, dealing with ship design, fire suppression systems, communications, as well as training standards for crew members.
Maritime Law and Admiralty Law in Canada
Maritime law and admiralty law are primarily dealt with in the Federal Court of Canada, though some private claims involving vessel repairs, collisions, liens, and other ship and marine vessel-based disputes can end up in provincial superior and supreme courts.
Lawsuits involving shipping and navigation in the Federal Court of Canada can involve matters that happen both in the country’s territorial waters and the high seas, and the laws under which vessels fall depend on the flags flown by ships.
The Federal Court’s jurisdiction over Canadian maritime law was clarified by the Supreme Court of Canada in a case known as Ordon v. Grail, which dealt with appeals and cross-appeals involving a lake-based fatal boating accident in Ontario. In that case, the court found that navigation and shipping issues in the country made a uniform maritime law regime across the country a “practical necessity.”
Development of maritime law in Canada
However, the court recognized that the development of maritime law in Canada was not “static or frozen,” and though federal legislation ruled the day for most maritime law issues, provincial courts could still find themselves with jurisdiction over a maritime law issue if it met a four-part test. The first part of that test, for example, involves determining whether the dispute involves navigation or shipping, which under Canada’s Constitution is the exclusive domain of the federal government.
The Federal Court deals with property damage and cargo damage claims, crashes, injuries and deaths at sea, and pollution issues affecting fisheries and Canadian marine environments. Canadian maritime law also involves the rules around salvaging sunken ships and marine liability limitation, which is somewhat different than corporation law involving the limitation of legal liabilities.
Marine liability, for instance, can involve lawsuits against a ship’s owner or even individual crew members and is heavily intertwined with the marine insurance industry, which has deep roots in Britain during its colonialist and imperialist eras where it dominated international marine commerce.
Canadian maritime law and confederation in 1867
Canadian maritime law has seen decades of evolution since the confederation in 1867 and is said to be “uniform” across the country. Canada’s maritime law regime was inherited from the body of admiralty law in England. Canadian maritime law now is made up of several different pieces of legislation including the Canada Marine Act, the Canadian Transportation Accident Investigation and Safety Board Act, the Canada Shipping Act, the Coasting Trade Act, and the Marine Liability Act.
Under the country’s maritime law regime, the Federal Court of Canada can also enforce foreign-based judgements and arbitral awards, while also resolving disputes about unpaid crew wages, ship and marine vessel mortgages, seizures, warrants, and potential insolvency issues with bankrupt international shipping companies.
In 2016, for example, the bankruptcy of the international Hanjin Shipping Company saw ships under the company’s ownership refused permission to moor and unload at several international ports. The company, based in South Korea, went bankrupt and saw a number of its vessels stranded and unable to offload cargo containers, disrupting global supply chains and throwing a wrench into the gears of retailers and other import and export firms.
Flags of convenience and tax havens
Other controversies involving maritime law in Canada include the use of so-called “flags of convenience,” where a ship flies a country’s flag for tax purposes. During his tenure, former Prime Minister Paul Martin came under fire for his family’s company, Canada Steamship Lines, using flags of convenience on a number of its ships, including Barbados, Bermuda, and Liberia.
Though he left the company to his sons when he was elected prime minister in 2003, Canada Steamship Lines had been using flags of convenience and tax havens in its operations for years, including the period in the 1990s when he was in Canada’s finance minister.
But it was back in 2017 when Martin’s former company was in the news again after the leak of confidential law firm records known as the Paradise Papers. The leak showed Canada Steamship lines had used offshore entities and flags of convenience on some of its vessels to enjoy low-tax and no-tax benefits of flying the flags of Barbados and Bermuda, despite the company being known as Canada Steamship Lines. Martin defended the practice, which remains widespread and problematic in the global shipping and marine industry.
Admiralty jurisdiction and the limitation of liability
Below are some challenges that can come up in the shipper industry.
Jurisdiction is always a difficult thing. Did an incident happen in the Port of Vancouver, or in international waters? What happens if something happens 12 miles away from the shore of Vancouver? Was it in Canada or not?
What happens if something happens in the arctic? Does the arctic belong to Canada, and therefore is covered by the Canada Shipping Act?
Can ship owners sign a limitation of liability with others to return their liability for bad things they do?
As you can see, maritime matters are not simple.
Some other topics you might want to research include:
- The Federal Courts Act
- Contracts of carriage
- Canadian Maritime Law Association
- The body of law for shipbuilding
- What does pilotage or charter party mean?
- How about the carriage of goods or bills of lading?
- What are forwarders?
- What laws govern harbours?
- Undertakings in law, what does it mean?
It’s helpful to know all the maritime law terms. There are too many to cover in this article. After you are done with this article, you can do further research into these terms.
Maritime law conclusion
The establishment and evolution of maritime law around the globe continues to this day while dating back to the times of ancient Rome and ancient Egypt. The threat of climate change and looming military conflicts among some of the world’s most powerful nations will no doubt shape the continual evolution of maritime and admiralty laws and regulations over the next century.
Globalization and the interconnectedness of national economies have seen the widespread adoption of uniform maritime regulations among UN member states under the International Maritime Organization, though as the world learned after the first world war, international cooperation can be undermined by the rogue, ultra-nationalist states and other malevolent actors who seek to sink ships and dam the stream of international commerce.