Canada's admiralty court in the twentieth century.

• Author: Stone, Arthur J.

The author outlines the debate surrounding the creation of Canada's admiralty court. This debate was fuelled by the desire for autonomy from England and the disagreement amongst Canadian politicians regarding which court was best suited to exercise admiralty jurisdiction. In 1891, more than thirty years after this debate began, the Exchequer Court of Canada, a national admiralty court, was declared, replacing the unpopular British vice-admiralty courts. The jurisdiction of this court was generally consistent with the existing English admiralty jurisdiction; it was not until 1931 that Canada was able to decide the jurisdiction of its own court. Since then, this jurisdiction has been enlarged by federal legislative measures, most notably the Federal Court Act of 1971, which continued the Exchequer Court under the Federal Court of Canada.

An understanding of Canadian maritime law is crucial in order to comprehend fully the new, broadened jurisdiction of the Federal Court of Canada. The author traces the historical roots of maritime law back to the ancient sea codes and ordinances of continental Europe and to Roman law. Maritime law has continued to evolve in the hands of judges and the legislature and will continue to do so, making a place for Canada's own admiralty court among the leading admiralty courts of the world.

L'auteur traite du debat ayant entoure la creation d'ane Cour d'amiraute au Canada. Ce debat etait alimente par la volonte d'une plus grande autonomie vis-a-vis l'Angleterre, de meme que par le desaccord entre les politiciens canadiens quant a la cour la plus appropriee pour avoir juridiction en matiere de droit maritime. En 1891, apres plus de trente ans de debats, fut creee la Cour de l'Echiquier du Canada, une cour d'amiraute nationale qui remplaqa les impopulaires cours britanniques de vice-amiraute. La juridiction de cette cour etait generalement en accord avec la juridiction des cours d'amiraute britanniques; il fallut attendre 1931 pour que le Canada soit capable de decider de la juridiction de ses propres tribunaux. Depuis cette date, cependant, la juridiction de la Cour canadienne d'amiraute a ete elargie par une serie de mesures legislatives federales, particulierement la Loi sar la Cour federale de 1971, laquelle confirma l'existence de la Cour de l'Echiquier sous l'autorite de la Cour federale du Canada.

Une bonne comprehension du droit maritime canadien est primordiale pour bien saisir la juridiction nouvelle et elargie de la Cour federale du Canada en la matiere. A cet effet, l'auteur retrace les racines historiques du droit maritime jusqu'aux anciens codes de la mer de l'Europe continentale et du droit romain. Le droit maritime canadian a continue d'evoluer par l'action conjointe des tribunaux et de la legislature, et cette tendance continuera encore, permettant ainsi a la Cour d'amiraute du Canada de se situer parmi les plus grandes cours d'amiraute du monde.

Introduction I. Birth and Development of the Court A. Early Developments B. A Maritime Court for Ontario C. Canada's First National Admiralty Court II. Jurisdiction of the Court A. Early Background B. Inherited Statutory Jurisdiction C. Inherited Non-Statutory Jurisdiction D. Canadian Statutory Jurisdiction Conferred E. "Canadian Maritime Law" E Concurrent Jurisdiction G. Equitable Jurisdiction H. Exercise of Jurisdiction III. Content and Sources of Canadian Maritime Law A. The Law Administered by the Court B. Modern Sources of Maritime Law C. Ancient Sources of Maritime Law IV. Judicial Reform of Canadian Maritime Law Conclusion Introduction

The purpose of this paper is to trace the evolution of Canada's national admiralty court, its jurisdiction, and the law that it administered during the last century.

1. Birth and Development of the Court

   Canada has had its own national admiralty court for the past ll0 years. In 1891, by authority of an imperial statute of the previous year, (1) the Parliament of Canada declared the Exchequer Court of Canada to be a "Colonial Court of Admiralty", (2) thereby rendering it Canada's national admiralty court. The Exchequer Court continued in this role until 1 June 1971, when it was renamed and continued by statute (3) as the Federal Court of Canada, to remain the admiralty court of Canada.

   1. Early Developments

      The decision in 1891 to select the Exchequer Court as Canada's admiralty court was the culmination of a long-held belief that the time had come to replace the British vice-admiralty courts in Canada with a domestic tribunal or tribunals. Vice-admiralty courts had operated for many years in the British North American colonies that would come together to form Canada in 1867. In 1890 such courts existed in Newfoundland, Nova Scotia, New Brunswick, Prince Edward Island, Quebec, and British Columbia. As imperial courts, they came to be, generally, ill-regarded in Canada, and by the 1880s the move toward their abolition was gathering momentum. During the previous decade, when faced with deciding whether to seek the establishment of an admiralty court for the Great Lakes in Ontario, Parliament opted to establish a court of its own creation--the Maritime Court of Ontario. This small step proved important as an assertion of local autonomy and led ultimately to the Exchequer Court's becoming Canada's national admiralty court in 1891. Indeed, the experience gained from efforts to extend admiralty jurisdiction to the Great Lakes, both before and after Confederation, and reactions to those efforts in Great Britain and Canada influenced the shape of the debate that ensued prior to the selection of the Exchequer Court of Canada as the admiralty court.

      A call for recognition in Canada of a need for a court exercising admiralty jurisdiction over the Great Lakes and connecting navigable waters was first made during the early 1860s, at a time when the provinces of Upper and Lower Canada were still united as the Province of Canada. Commercial shipping on the Great Lakes was fast increasing. Up to that time, case law in both England (4) and the United States (5) barred the granting by the appropriate authority of admiralty jurisdiction over inland waters because such waters did not lie within the ebb and flow of the tide. Despite this, in 1845 the Congress of the United States conferred jurisdiction on the federal district courts of that country in matters of contract and tort with respect to certain classes of "steamboats and other vessels of twenty tons burden and upwards ... upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce upon the high seas, or tide waters, within the admiralty and maritime jurisdiction of the United States." (6) Six years later, in The Genesee Chief v. Fitzhugh, (7) which involved a collision on the Great Lakes, those lakes were described as follows:

      These lakes are in truth inland seas. Different States border on them on one side, and a foreign nation on the other. A great and growing commerce is carried on upon them between different States and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them, and prizes have been made; and every reason which existed for the grant of admiralty jurisdiction to the general government on the Atlantic seas, applies with equal force to the lakes. (8) Since these lakes were inland waters and there was "no tide in the lakes or the waters connecting them," (9) they were considered by some to be outside the scope of admiralty and maritime jurisdiction. Chief Justice Taney addressed this issue, stating that:

      Now there is certainly nothing in the ebb and flow of the tide that makes the waters particularly suitable for admiralty jurisdiction, nor any thing in the absence of a tide that renders it unfit. If it is a public navigable water, on which commerce is carried on between different States or nations, the reason for the jurisdiction is precisely the same. And if a distinction is made on that account, it is merely arbitrary, without any foundation in reason; and, indeed, would seem to be inconsistent with it. (10) Chief Justice Taney offered the following rationale for recognizing admiralty jurisdiction on the Great Lakes and connecting navigable waters:

      It is evident that a definition that would at this day limit public rivers in this country to tide-water rivers is utterly inadmissible. We have thousands of miles of public navigable water, including lakes and rivers in which there is no tide. And certainly there can be no reason for admiralty power over a public tidewater, which does not apply with equal force to any other public water used for commercial purposes and foreign trade. The lakes and waters connecting them are undoubtedly public waters; and we think are within the grant of admiralty and maritime jurisdiction in the Constitution of the United States. (11) During the 1860s, Henry Black, the Judge of Vice-Admiralty in Lower Canada, put forward a suggestion that admiralty jurisdiction would be exercised on the Great Lakes where it had not been exercised by any British vice-admiralty court. His solution was simply to extend his own jurisdiction in vice-admiralty over those waters. Black had been appointed Judge of Vice-Admiralty by an imperial commission dated 1 April 1837 and reappointed by a further commission dated 27 October 1838. The commissions were in favour of "Our Commissary in Our Vice-Admiralty Court in Our Province of Lower Canada, in America, and Territories thereunto belonging ..." (12) Two years later, in 1840, the Provinces of Upper and Lower Canada were joined together to form the Province of Canada. (13) Until 1790, however, the territory of the Province of Quebec, as specified in all prior imperial commissions appointing judges of vice-admiralty for that province, included the...