This is the introduction to a series of case comments concerning the Supreme Court of Canada’s judgment (Nov. 28, 2019) in Transport Desgagnés Inc., et al. v. Wärtsilä Canada Inc., et al. Rather than outlining the gist of the judgment here, the comments assume that the reader is familiar in general terms with the judgment. For an outline of the judgment, please request a copy of our December 4, 2019, newsletter by emailing us on general@dmsplaw.ca.
We begin with the macro question: what remains of Canadian maritime law following the Wartsila judgment? No doubt a great deal remains. But just how much?
The judgment is at least confined to the assertion that it is only non-statutory Canadian maritime law which is displaced by applicable and conflicting provincial statute law. So we can begin with the conclusion that statutory Canadian maritime law is not affected. How much of this is there and what areas of law are covered?
A great deal of Canadian maritime law has long since been statutory or has become statutory over the past decade or more. Here is an outline of the major statutes and their subject-matter:
- Canada Shipping Act, 2001. Ship-technical regulation and enforcement. Adoption of SOLAS. Ship registration.
- Canada Marine Act. Commercial regulation of Canadian ports, Seaway, ferries, etc.
- Marine Liability Act. Various liability aspects, including personal injuries and fatalaties, apportionment of liability, general limitations of liability for maritime claims, passenger claim liability, carriage of goods, pollution liability. Adoption as part of these of various international conventions such as LimCon76, Athens Convention, Hague-Visby Rules, CLC and Fund Conventions.
- Arctic Waters Pollution Prevention Act. Environmental regulation, pollution liability and enforcement specific to Arctic waters.
- Fisheries Act. Environmental regulation, liability and enforcement in relation to fisheries and fish habitat.
- Migratory Birds Convention Act. Environmental regulation, liability and enforcement in relation to migratory birds.
- Canadian Navigable Waters Act. Environmental protection and regulation of structures or construction in navigable waters.
- Canadian Transportation Accident Investigation and Safety Board Act. Casualty investigation.
- Marine Insurance Act. Marine insurance contracts.
- Marine Transportation Security Act. Security and safety on ships and at ports.
- Marine and Aviation War Risks Act. Canadian war risks regime.
- Wrecked, Abandoned or Hazardous Vessels Act. Environmental regulatory, liability and enforcement in relation to wrecks etc. Salvage, including adoption of Salvage Convention.
- Pilotage Act. Maritime pilotage system and regulation.
- Oceans Act. Definition of Canadian jurisdiction, promotion of marine resources and conservation, source statute for Canadian Coast Guard, etc.
- Commercial Arbitration Act. Includes specific provisions in relation to maritime arbitration.
So there is a broad subject-matter which is (a) statutory and (b) no doubt valid federal law under the navigation and shipping head of power, or some other federal head of power, and which as such should be immune from the effects of the Wartsila judgment.
The question becomes: what elements of Canadian maritime law are non-statutory and therefore conceivably vulnerable to the application of provincial statute law per the Wartsila judgment. This also includes the question whether or not there are aspects of the statutory Canadian maritime law subject-matter which are not covered by the statutes, and which could also be vulnerable. We will begin to discuss this in the next post.