The Federal Courts and Admiralty Law

• Author: David Colford
• Pages: 467-498

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The Federal Courts and Admiralty Law

David Colford*

     is the Federal Court’s exercise of its admiralty

jurisdiction and what it has done during the past f‌ifty years, since the enact-

ment of the Federal Court Act.1 e Federal Court of Appeal has no original

jurisdiction in maritime matters, although its contribution to the development

of the admiralty law through its appellate jurisdiction has been signif‌icant

and its judicial review activities2 have been dealt with adequately elsewhere.

* An earlier version on aspects of carriage of goods by water was published as “Con-

tracts of Carriage of Goods By Water in the Federal Courts — A Primer” (2014) 10

Canadian Maritime Law Journal and Papers, online: www.cmla.org/papers/Contracts_

of_Carriage_-_Colford.pdf. An earlier version of part of this paper was also pub-

lished online as “Limitation of Liability by Statute, Convention and Contract” (with

co-author Hon Justice Elizabeth Heneghan, 2018), online: www.brissetbishop.com/

wp-content/uploads/2014/08/Limitation-of-Liability-Canada-April-2018.pdf. Some of

the author’s views have been updated in this chapter to ref‌lect caselaw developments.

1 RSC 1970, c 10 [Federal Court Act 1970]. I have had the benef‌it of consulting GeorgeR

Strathy, “Maritime Law in The Federal Court of Canada — an Evaluation” (Paper

delivered at the 20th Federal Court Anniversary Symposium, 26 June 1991) The Federal

Court of Canada – An Evaluation (Ottawa: Federal Court of Canada, 1991); and John G

O’Connor, “Admiralty Jurisdiction and Canadian Maritime Law in the Federal Courts:

the Next Forty Years” (Paper delivered at the 2011 Federal Courts Educational Seminar,

National Judicial Institute, Ottawa, 28 October 2011), online: www.fca-caf.gc.ca/fca-

caf/pdf/03E.%20OConnor_Maritime%20Law%20Jurisdiction_2011-10-17_ENG.pdf.

2 In the maritime f‌ield, principally with respect to decisions of the Canadian Transpor-

tation Agency.

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        

In the English tradition, admiralty courts were given jurisdiction and

the fact of jurisdiction was enough to justify the power to create law using

available sources.3 However, Canadian Maritime Law4 def‌ines and controls

the Federal Court’s Admiralty jurisdiction, incorporating its antecedents

since the days of the Black Books of Admiralty, created under Richard II.5

e content of that law6 has expanded and contracted through the centuries

depending on the inf‌luence of imperial policy and the dominance of the

Common Law over the Civil Law, an international form of law. e Federal

Court’s role as Canada’s “Admiralty Court” over the last f‌ifty years cannot

be understood without taking into account the developments leading up to

 and the enactment of Canadian maritime law.

During the nineteenth century, as a result of the expansion of its naval

f‌leet and commercial shipping, the British Parliament expanded the jurisdic-

tion of the Admiralty Court to cover commercial matters and in  combined

the common law, equity, ecclesiastical, probate, and admiralty courts into one

court with separate divisions. us began the decline of civil law inf‌luence, as

the common law and equity trained lawyers gradually gained inf‌luence.7

Because of the importance of navigation and commercial shipping to

the furtherance of British imperial policy, the power over navigation and

shipping was attributed to the Federal Parliament in  to maintain inter-

national uniformity. In , Parliament exercised its power pursuant to sec-

tion  of the Constitution Act8 to create “a general court . . . and an additional

Tetley, “The General Maritime Law — the Lex Maritima” (1994) 20 Syracuse

Journal of International Law and Commerce 105 at 116, cited in Desgagnés Transport

Inc v Wartsila Canada Inc, 2019 SCC 58 at para 11 [Wartsila].

4 As def‌ined in the Federal Courts Act, RSC 1985, c F-7, s 2, enacted in s 42, and with

respect to jurisdiction and applicable law, s 22(1): “a claim for relief is made . . . by

virtue of Canadian Maritime Law or any other law relating to a matter coming within

the subject of navigation and shipping.”

5 1389 (Eng), 13 Rich II, c 5; Frank L Wiswall, Jr, The Development of Admiralty Jurisdiction

and Practice since 1800 (London: Cambridge University Press, 1970); Arthur J Stone,

“Canada’s Admiralty Court in the Twentieth Century” (2002) 47 McGill Law Journal 511;

see also the summary of the history by Thurlow ACJ in The Queen v Canadian Vickers

Ltd [1978] 2 FC 675 (TD), and O’Connor, above note 1.

6 The best general reference work available is Aldo Chircop et al, eds, Canadian Maritime

Law, 2d ed (Toronto: Irwin Law, 2016); but the focus of this chapter is the courts’ exer-

cise of admiralty jurisdiction, not the content of Canadian maritime law.

7 Admiralty Court Act, 1840 (UK), 3 & 4 Vict, c 65; Admiralty Court Act, 1860 (UK), 24 &

25 Vict, c 10; Supreme Court of Judicature Act, 1873 (UK), 36 & 37 Vict, c 36.

8 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91.

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The Federal Courts and Admiralty Law

court(s) for the better administration of Canada’s laws,”9 and appointed a

Chief Justice and f‌ive puisne judges with concurrent authority as judges of

the Supreme Court of Canada and of the Exchequer Court. e courts and

their personnel were separated in  following the appointment of a sep-

arate Exchequer Court judge.10

At the time of Confederation, admiralty law matters were considered

instruments of imperial policy and part of the conduct of foreign relations,

and admiralty disputes continued to be adjudicated upon in Vice-Admiral

Courts. In , these courts were abolished and their jurisdiction was con-

solidated with the pre-existing Exchequer Court. e Colonial Courts Act, 11

specif‌ically directed that admiralty causes were to continue to be adjudicated

“in like manner and to as full an extent as the High Court in England, and

shall have the same regard as that Court to international law and the comity

of nations.”

Admiralty jurisdiction continued to be restricted to what was exercised

and administered in the United Kingdom in  until the passage of the

Statute of Westminster, ,12 which allowed Canada to conduct its own foreign

policy and develop its own admiralty court and law with extra-territorial

eect. In , Canada expanded the admiralty jurisdiction to ref‌lect that of

the reformation that had already been undertaken in the United Kingdom

in .13

In the United Kingdom, as a result of various international maritime

conventions,14 there were further developments in its admiralty law and juris-

diction in .15 Canada was not a party to these conventions and did not

address the need for further development and expansion of the admiralty

jurisdiction until .

9 An Act to establish a Supreme Court and Exchequer Court for the Dominion of Canada,

SC 1875, 38 Vict, c 11, s 17.

10 An Act to amend the Supreme Court and Exchequer Courts Act, 1887, 50–51 Vict, c 16.

11 Colonial Courts Act, 1891 (UK), 53 & 54 Vict, c 27 and, in particular, s 2.

12 Statute of Westminster, 1931 (UK), 22 Geo V, c 4.

13 Admiralty Act, SC 1934, c 31, together with a schedule being s 22 of c 49 of 15 & 16

Geo V, being the Supreme Court Judicature (Consolidation) Act, 1925, in ef‌fect, repli-

cating the admiralty jurisdiction of the United Kingdom in 1925.

14 In particular, International Convention for the Unif‌ication of Certain Rules relating to the

Arrest of the Sea-Going Ships, 10 May 1952, 439 UNTS 193 (entered into force 24 Feb-

ruary 1956) and International Convention on Certain Rules concerning Civil Jurisdiction

in matters of Collision, 10 May 1952, 439 UNTS 219 (entered into force 14 September

1955).

15 Administration of Justice Act, 1956 (UK), 4 & 5 Eliz 2, c 46.