T-1908-72
Davie Shipbuilding Limited and Canada Steam
ship Lines Limited (Plaintiffs)
v.
The Queen (Defendant)
and
Robert Morse Corporation Limited and Colt
Industries (Canada) Ltd. (Third Parties)
Trial Division, Gibson J.—Ottawa, June 20 and
July 17, 1978.
Maritime law — Jurisdiction — Contract for construction
of ship — Shipbuilder entered second contract with third party
to build, supply and install engines and equipment — Ship-
owner, by counterclaim, suing shipbuilder alleging breach of
contract — If this counterclaim successful, claim exists on
allegation that there is breach of contract between shipbuilder
and third party — Whether or not counterclaim and third
party issue within "Canadian maritime law" and under
Court's jurisdiction — Federal Court Rule 474.
This is a motion for the preliminary determination of a
question of law under Rule 474. The plaintiff Davie Shipbuild
ing Limited contracted with the Crown to build a ship for the
Crown. Plaintiff Davie, for purposes of completing that con
tract, also entered into a contract with the third party, Robert
Morse, to build, supply and install engines and other equipment
in the ship. By counterclaim, the Crown as shipowner, is suing
Davie, the shipbuilder, alleging breach of contract. If that
counterclaim is successful, by the statement of claim in the
third party issue, there is a claim on an allegation that there is
also a breach of contract between plaintiff, Davie, and the third
party, Robert Morse. The question of law to be decided is
whether or not the matters of the counterclaim and third party
issue are within the jurisdiction of the Court, and more specifi
cally subject matters of "Canadian maritime law".
Held, the Federal Court has jurisdiction to hear and deter
mine the issues raised in the counterclaim and third party
issues. The test referred to by Collier J. in Alda Enterprises
Limited v. The Queen [1978] 2 F.C. 106 at page 110 should
not be employed. Instead, jurisdiction on this basis should be
found by the Court by saying it is part of the ancillary
jurisdiction of the Court, or by applying the ancillary jurisdic
tion concept. This ancillary jurisdiction concept would then be
applicable in respect of the subject matters of both the counter
claim and the third party issue in these proceedings.
Benson Bros. Shipbuilding Co. (1960) Ltd. v. Mark Fish
ing Co. Ltd. (1978) 21 N.R. 260, applied. Hawker Indus
tries Ltd. v. Santa Maria Shipowning and Trading Com
pany, S.A. [1979] 1 F.C. 183, applied. Aida Enterprises
Ltd. v. The Queen [1978] 2 F.C. 106, distinguished.
McNamara Construction (Western) Ltd. v. The Queen
[1977] 2 S.C.R. 654, considered. The "Sparrows Point" v.
Greater Vancouver Water District [1951] S.C.R. 396,
considered. Bow, McLachlan & Co., Ltd. v. The "Camo-
sun" [1909] A.C. 597, considered.
APPLICATION.
COUNSEL:
G. B. Maughan for plaintiffs.
D. T. Sgayias for defendant.
G. P. Barry for third parties.
SOLICITORS:
Ogilvy, Montgomery, Renault, Clarke, Kirk-
patrick, Hannon & Howard, Montreal, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
McMaster, Meighen, Montreal, for third
parties.
The following are the reasons for judgment
rendered in English by
GIBSON J.: This is a motion for the preliminary
determination of a question of law under Rule 474,
namely, whether this Court has jurisdiction to try
the counterclaim and third party issue in these
proceedings.
The counterclaim flows from three key allega
tions in the defence, namely, in paragraphs
1(c),(d) and (e):
(c) On or about the 18th day of December, 1969 the Plain
tiff Davie delivered the said vessel to the Defendant and the
Defendant paid to the Plaintiff Davie the full amount agreed
upon for the said vessel under the contract.
(d) On or about the 29th day of June, 1970 while the said
vessel was on an authorized assignment and operating under
normal cruise conditions the Port Inner (No. 2) Main Engine
completely failed and as a result of such failure a fire subse
quently occurred on board the said vessel.
(e) The failure of the Main Engine referred to in subpara-
graph (d) hereof was due entirely to faulty workmanship prior
to delivery of the said vessel by the Plaintiff Davie to the
Defendant and under clause 9 of the said contract the Plaintiff
Davie was obligated to repair or remove and replace the said
engine at its sole cost and expense.
The third party issue was commenced by the
plaintiff and the statement of claim in that issue at
paragraph 14 puts in issue the warranty and
indemnity clauses in the contract between the
plaintiff and the third party, namely:
14. The Plaintiff Davie Shipbuilding Limited's said Purchase
order No. 663-5231-1 referred to the General Specification for
Machinery and Equipment Procurement attached thereto for
particulars of, inter alla, "Guarantee" which clause provided as
follows:-
6. GUARANTEE
All equipment supplied by the Vendor, regardless of whether
the Vendor manufactures it or not shall be guaranteed for a
period of twelve (12) months from the date of acceptance of
the vessel by the Shipowner against defects arising from
faulty design and workmanship.
and the said Purchase Order further provided that Davie
Shipbuilding Limited "Conditions of Purchase" attached there
to were applicable to the order, which "Conditions of Pur
chase" contained the following "Warranty" clause:-
7. WARRANTY
Supplier warrants the supplies delivered hereunder:
(a) to be free from defects in design, workmanship and
material,
(b) to be new and of the most suitable grade of their
respective kinds for the purpose,
(c) to conform to applicable specifications, drawings, sam
ples, or other descriptions given,
(d) to be suitable for the purpose intended,
(e) to be of merchantable quality.
Supplier also warrants that the supplies shall be so manufac
tured or constructed as to operate satisfactorily as specified.
This warranty shall run to Purchaser, his successors, assigns,
customers, and the users of supplies covered by this Order.
All warranties shall be construed as conditions as well as
warranties and shall not be deemed to be exclusive.
Supplier agrees to replace or to correct promptly without
expense to Purchaser any supplies not conforming to the
foregoing requirements when notified by Purchaser thereof
during a period of 12 months after final acceptance by the
Purchaser's customer of the work intended. If Supplier, upon
notice of any defect, fails promptly to correct or replace
supplies as required herein, Purchaser may, without further
notice, correct or replace such supplies and Supplier agrees
to reimburse Purchaser for all costs incurred thereby.
No inspection, test or approval of any kind, including Pur
chaser's approval of designs, shall affect Supplier's obligation
under this Article to furnish supplies which meet all perform
ance, reliability and other operational requirements.
Supplies which have been rejected shall not, thereafter, be
tendered for acceptance unless the former rejection and
correction is indemnified and such repaired or replacement
supplies shall be subject to the provision of this Article to the
same extent as the original supplies the warranty shall run
from the later delivery date.
The plaintiff Davie contracted with the defend
ant, the Crown Federal, to build a ship for the
Crown Federal. The plaintiff, Davie, for purposes
of completing that contract also entered into a
contract with the third party, Robert Morse to
build, supply and install engines and other equip
ment in the ship.
By the counterclaim, the defendant, the Crown
Federal, as shipowner, is suing the plaintiff, Davie,
the shipbuilder, alleging breach of contract. If that
counterclaim is successful, by the statement of
claim in the third party issue, there is a claim on
an allegation that there is a breach also of the
contract between the plaintiff, Davie, and the third
party, Robert Morse.
In essence, therefore, the counterclaim is an
action in respect to the construction of a ship by a
shipowner against a shipwright, and the third
party claim is also an action in respect to the
construction of a ship by a shipwright against a
subcontractor.
An agreed statement of facts was filed pursuant
to the order of this Court dated May 30, 1978
setting down this motion.
The question of law to be decided on this motion
is whether or not the said matters of the counter
claim and the third party issue are within the
jurisdiction of this Court or more specifically, are
they subject matters of "Canadian maritime law"
as defined in section 2 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, which by section
42 of the Act is the Canadian maritime law juris
diction of this Court.
As defined by section 2, this Court has "unlimit-
ed jurisdiction in relation to maritime and admi
ralty matters".
Recently there have been a number of cases in
respect to various subject matters in which the
issue was whether such matters were maritime or
admiralty matters within the jurisdiction of this
Court.
Counsel on this motion submitted very complete
arguments with authorities which have been of
great assistance in relation to the matter of such
jurisdiction generally, and specifically to this case.
In particular, the submission of Mr. Barry, counsel
for the third party, was very helpful. Set out as
Appendix to these reasons, is part of his submis
sion and authorities.
In relation to the subject matters of the counter
claim and third party issue in this action, in my
view, there is jurisdiction in this Court to hear and
adjudicate them based on the two decisions of the
Court of Appeal of this Court, namely, Benson
Bros. Shipbuilding Co. (1960) Ltd. v. Mark Fish
ing Co. Ltd.' and Hawker Industries Limited v.
Santa Maria Shipowning and Trading Company,
S.A. 2
From all these authorities, it appears that the
content and source of substantive Canadian mari
time law is not common law. Instead, such is the
law that was administered in the Admiralty Courts
of Western Europe of which the Admiralty Court
in Great Britain was one. Chief Justice Jackett in
the Hawker Industries Limited case (supra) said
at pages 187 and 188:
(a) there was, in early times, a body of Admiralty law or "law
of the sea" governing matters of navigation and shipping and
international trade that was a part of the law of most maritime
nations, including England,
(b) that, when early statutes inhibited the English Admiralty
Court from exercising jurisdiction in certain matters, they
neither purported to, nor had the effect of, abolishing any part
of such law, even though, during the operation of such inhibi
tions, there was no occasion to apply certain parts thereof,
(c) that as, and to the extent that, such inhibitions were
removed, such parts of the Admiralty law, as amended by
substantive legislation, again became operative,
(d) that, as part of the law of England, such Admiralty law
was introduced into Canada and, as amended by substantive
legislation, was in fact resorted to to the extent that Admiralty
' (1978) 21 N.R. 260.
2 [1979] 1 F.C. 183.
courts in Canada had jurisdiction at different periods of Cana-
da's history,
(e) that such Admiralty law or law of the sea is "federal" law
and not provincial law and jurisdiction with regard thereto can
be conferred by Parliament under section 101, and
(f) such Admiralty law, (I do not intend to suggest that, quite
apart from substantive changes by statute, the Admiralty law
did not undergo development by reason of changing circum
stances and times just as the common law of England did.) as
amended by substantive legislation, is a part of the law that was
continued (enacted) by section 42 of the Federal Court Act in
1971.
The subject matters of the counterclaim and
third party issue also may be matters within the
jurisdiction of this Court on another basis: The
main action in these proceedings is within the
jurisdiction of this Court. As a consequence,
because the counterclaim and the third party issue
are really ancillary to the subject matter of the
main action, this Court has jurisdiction. As was
said by Chief Justice Laskin in McNamara Con
struction (Western) Limited v. The Queen 3 at page
664:
I would, however, observe that if there had been jurisdiction in
the Federal Court there could be some likelihood of proceed
ings for contribution or indemnity being similarly competent, at
least between the parties, in so far as the supporting federal law
embraced the issues arising therein.
And as was said in the judgments of Kellock J.
at pages 402 to 404 and Rand J. at page 411 in
The `Sparrows Point" v. Greater Vancouver
Water District 4 :
The question was raised during the argument as to the
jurisdiction of the Admiralty Court to deal with the claim of
the Water District against the Harbours Board. It is clear, I
'think, that the court has no jurisdiction beyond that conferred
by the statute; c. 31 of the statutes of 1934; Bow McLachlan
and Co. v. The Ship "Camosun" ([1909] A.C. 597). The
statute has been changed since that decision, but the principle
is still applicable. The answer to the question raised depends
upon the meaning of the words "damage by any ship" in s.
22(1)(iv) of Schedule A to the statute of 1934, which
reproduces s. 22 of the Supreme Court of Judicature Consoli
dation Act (1925) c. 49, the language of which is "any claim
for damage done by a ship." There have been a number of
decisions since the enactment of the original statute of 1861, 24
Vic. c. 10, s. 7.
In the "Uhla" ((1867) Asp. M.C. 148), and in the "Excelsi-
or" ((1868) L.R. 2 A. & E. 268), jurisdiction was exercised in
the case of damage done by a ship to a dock, and in Mayor of
3 [1977] 2 S.C.R. 654.
4 [1951] S.C.R. 396.
Colchester v. Brooke ((1845) 7 Q.B. 339), jurisdiction was
exercised in the case of damage to oyster beds.
In the case of the "Bien" ((1911) P. 40), the plaintiff, lessee
of an oyster bed, sued the conservators of the River Medway
and the owner of a ship for damage sustained to an oyster bed
caused by a ship when acting under orders of a harbour master.
That case was, of course, decided after the Judicature Acts
when the jurisdiction of the Admiralty Division was no longer
limited to that formerly exercised by the Court of Admiralty.
The circumstances in question in the present proceedings are
analogous. If the claim against the Harbours Board cannot be
entertained in the Admiralty Court, the result is that the Water
District ought to have brought two actions, the one on the
Admiralty side of the Exchequer Court against the ship, and
the other elsewhere.
In my opinion, the statute, which prima facie confers juris
diction upon the Admiralty Court in a case of this kind, should
be construed so as to affirm the jurisdiction, at least in a case
where the ship is a party. There is no authority to the contrary
to which we have been referred or which I have been able to
find, and every consideration of convenience requires a con
struction in favour of the existence of such a jurisdiction.
In the "Zeta" ([1893] A.C. 468), Lord Herschell, in refer
ring to s. 7 of the Act of 1861, said at p. 478:
It is enough to say that the proposition that the Act of
1861 applies to damage done by a ship to persons and things
other than ships has been well established by many authori
ties, the correctness of which I see no reason to question.
With respect to the earlier Act of 1840 (damage to a ship),
he said at p. 485:
Even if its operation, when the words are construed
according to their natural meaning, be to enlarge the juris
diction of the Court of Admiralty in the case of damage
received by a ship upon the high seas, there is nothing in the
frame of the enactment to indicate that this was not the
intention of the Legislature, though, no doubt, its chief object
may have been to extend the jurisdiction which existed in the
case of damage received by ships upon the high seas to
damage received in the body of a county. It does not provide
in terms for an extension, to cases where the occurrence is
within the body of the county, of the jurisdiction which
would exist if the occurrence had been upon the high seas;
but it gives jurisdiction in certain cases "whether the ship
may have been within the body of a county or upon the high
seas".
It is true that it has been held that s. 7 of the original Act
does not extend to permit a pilot to be sued in the Admiralty
Court, but these decisions stem from the judgment of Dr.
Lushington in the "Urania" ((1861) 10 W.R. 97), in which no
reasons were given for such a construction. In the later case of
the 'Alexandria" ((1872) L.R. 3 A. & E. 574), Sir Robert
Philimore, while deeming himself bound by the earlier decision,
said that had the question been res Integra, he would have
considered an action against a pilot as within the statute. These
decisions were followed by the Court of Appeal in The Queen v.
The Judge of the City of London Court ((1892) L.R. 1 Q.B.
273). This decision was in turn approved by Lord Macnaghten
in the "Zeta" ([1893] A.C. 468), but the majority of their
Lordships in that case expressed no opinion on the point, Lord
Herschell stating at p. 486 that
In that and the other cases relating to suits instituted in
respect of the negligence of pilots, stress was laid on certain
considerations which do not touch the case with which your
Lordships have to deal.
The considerations referred to, as stated by the Master of the
Rolls ((1892) L.R. 1 Q.B. 273) in (1892) 1 Q.B. at p. 298, are
that a pilot, sued in Admiralty in respect of a collision which
has occurred through his negligence, would be deprived of the
common law defence of contributory negligence, and that
originally the pilot's liability in the Admiralty Court was
unlimited although the owners of the ship would have had a
limited liability only.
In such a case as the present, these considerations do not
apply. As to the effect of a finding of contributory negligence,
it was pointed out by Lord Herschell L.C. in the "Zeta" that
the rule as to division of damages in Admiralty applied only in
the case of collisions between ships. In the present case, if the
Harbours Board were sued in the ordinary courts, it would
seem that contributory negligence of the plaintiff would be a
defence. Under its statute, 1 Ed. VIII c. 42, s. 3(2), the Board
is a corporation, and for all purposes of the Act, the agent of
His Majesty. By subsection (3) it is given capacity to contract
and to sue and be sued in its own name. By s. 10, all property
acquired or held by the Board shall be vested in His Majesty. I
think, in the presence of these provisions, the existence of a
cause of action in tort is to be governed by the same principles
as apply in the case of a claim in tort against the Crown. A
bridge vested in the Crown and operated by an agent of the
Crown is a "public work" within the meaning of s. 19(c) of the
Exchequer Court Act and as a cause of action for negligence of
a servant of the Crown on a public work is and was liable to be
defeated on the ground of contributory negligence, long before
the passing in 1925 of the British Columbia Contributory
Negligence Act, the result would be the same in the provincial
courts in such a case as the present. The other consideration as
to the limits of liability of a pilot has no application.
On the other hand, all claims arising out of the damage
occasioned by the ship should be disposed of in one action so as
to avoid the scandal of possible different results if more than
one action were tried separately. I therefore think that the
statute is to be construed as clothing the Exchequer Court on
its Admiralty side with the necessary jurisdiction.
As the jurisdiction of the Exchequer Court for this purpose is
the Admiralty jurisdiction of the High Court in England, if the
action had been brought against the Harbour Commission as
for an individual tort, the point taken might be formidable; but
the cause of action alleged is, strictly, one against joint tort
feasors: The "Koursk" ([1924] P. 140); i.e. both the vessel and
the Commission have concerted in directing and controlling the
movement of the vessel down the harbour: it was a single act
with joint participants. In such a case, a judgment against one
merges the cause of action and would be an answer to an action
brought against the other in another court.
The Water Authority is entitled to assert a remedy in
Admiralty both against the vessel, in rem, and against the ship
owners, in personam; and the law administered would be
Admiralty law. The limitation of the scope of proceedings so as
to deny the joinder of the Harbour Commission would deprive
the Authority of one of those remedies if it desired also to
pursue its claim against the Commission. Every consideration
of convenience and justice would seem to require that such a
single cause of action be dealt with under a single field of law
and in a single proceeding in which the claimant may prosecute
all remedies to which he is entitled; any other course would
defeat, so far, the purpose of the statute. The claim is for
damage done "by a ship"; the remedies in personam are against
persons responsible for the act of the ship; and I interpret the
language of the statute to permit a joinder in an action properly
brought against one party of other participants in the joint
wrong.
This latter case was decided before the constitu
tional issue raised in the McNamara case (supra);
but in essence these judgments approach the
matter of jurisdiction in the same way.
From the judgment in `Sparrows Point" case
(supra), it would appear that Bow, McLachlan &
Co., Limited v. The "Camosun" 5 has no practical
validity in this matter.
In respect to this basis for jurisdiction, the test
referred to by Collier J. in Alda Enterprises Lim
ited v. The Queen 6 , in my respectful opinion,
should not be employed:
A sometimes useful test to apply in approaching the question
of jurisdiction is to see whether this Court would have jurisdic
tion if the claim advanced against one particular defendant
stood alone and were not joined in an action against other
defendants over whom there properly is jurisdiction. (See
McGregor v. The Queen [1977] 2 F.C. 520 at 522.)
Instead, in my view, jurisdiction on this basis
should be found by the Court by saying it is part of
the ancillary jurisdiction of the Court, or by apply
ing the ancillary jurisdiction concept. This ancil
lary jurisdiction concept in my view, would then be
applicable in respect to the subject matters of both
the counterclaim and the third party issue in these
proceedings.
5 [1909] A.C. 597.
6 [1978] 2 F.C. 106 at p. 110.
In any event and in the result, therefore, the
finding in respect to the question of law raised in
these proceedings is that the Federal Court of
Canada has jurisdiction to hear and determine the
issues raised in the counterclaim and in the third
party issues.
Costs in the cause.
APPENDIX to REASONS FOR JUDGMENT
in DAVIE SHIPBUILDING LIMITED et al. v.
THE QUEEN and ROBERT MORSE
CORPORATION LIMITED et al., Third Parties
(T-1908-72)
THIRD PARTIES' SUBMISSIONS AND AUTHORITIES
I. Sections 22(1) and 22(2)(n) of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, give
the Court jurisdiction over the subject matter of
both proceedings:
A. of the counterclaim:
1. Parliamentary intent to be deduced from
the difference in wording between s. 22(2)(n)
"any claim arising out of a contract relating
to the construction" and wording of Schedule
A to The Admiralty Act, 1934, S.C. 1934, c.
31, s. 22(1)(a)(x) "Any claim for building".
See The Queen v. Canadian Vickers Ltd.
[1978] 2 F.C. 675, at pp. 686-688 Thurlow
A.C.J.
2. s. 22(2)(e) "damage sustained by, ... a
ship".
B. of the third party proceedings:
1. Parliamentary intent as above
See The Queen v. Canadian Vickers Ltd.
[1976] 1 F.C. 77, at pp. 82-83 per Addy J.
2. s. 22(2)(e) as above.
C. under s. 22(1)(b) of The Admiralty Act,
1934, Schedule A, which caused the court's
jurisdiction in admiralty to become unlimited
(and is continued by s. 2(b) of the Federal
Court Act).
See MacMillan Bloedel Limited v.
Canadian Stevedoring Co. Ltd. [1969] 2
Ex.C.R. 375, at pp. 382-384;
See below as to unlimited admiralty jurisdic
tion.
II. To "feed" such jurisdiction, s. 2(b) of the
Federal Court Act, is unquestionably a "referen-
tial incorporation" of substantive law called for in
Quebec North Shore Paper Company v. Canadian
Pacific Limited [1977] 2 S.C.R. 1054, at pp. 1058,
1065 and Laskin in Canadian Constitutional Law
(4 ed. rev'd). (Compare the Crown Liability Act,
R.S.C. 1970, c. C-38, s. 3(1) "if it were a private
person" which means provincial law (cf. MacGre-
gor v. The Queen [ 1977] 2 F.C. 520).)
A. Other such referential incorporations are to
be found in:
1. Colonial Courts of Admiralty Act, 1890,
53 & 54 Vict., c. 27, s. 2(2) and Admiralty
Act, 1891, S.C. 1891, c. 29, s. 4;
2. The Admiralty Act, 1934, S.C. 1934, c.
31, s. 18(1). The jurisdiction "to be exer
cised" was by s. 22(1)(b) Administration of
Justice Act 1925, English High Court Admi
ralty jurisdiction in 1934, "now possessed",
inclusive of all former Admiralty jurisdiction,
as to which see infra;
3. As to matters arising in Quebec, art. 2388,
para. 2, Quebec Civil Code, a pre-Confedera
tion statute of the Province of Canada (S.C.
1865, c. 41), this article thus being continued
under B.N.A. Act s. 129 as federal law and
confirming the uniformity of Canadian mari
time law:
(a) See dissenting judgment of Ritchie J.
in National Gypsum Company Inc. v.
Northern Sales Limited [1964] S.C.R. 144;
(b) cf. Circle Sales v. The "Tarantel"
[1978] 1 F.C. 269, 293 per Walsh J.;
(c) Although art. 2388 is found in the
chapter on maritime privileges, its second
paragraph is of general application:
(1) 7th Report of the Codifiers Vol. 3, p.
230, 232 art. 34, p. 299 (annexed) and
sources cited:
The report (unlike Parliamentary
debates) is regularly referred to to
interpret the Code: cf Shawinigan
Carbide v. Doucet (1910) 42 S.C.R.
281, 347;
The `Mary Jane" 1 Stuarts' V.A.R.
267 and commission of H. Black, vice-
admiralty judge, ibid. p. 367;
(d) This article is not invalid under the
Colonial Laws Validity Act, 1865 since it is
certainly not repugnant to English law. In
making applicable English civil law in
admiralty matters it may well go further
than English law—and than the Codifiers
intended: Shawinigan, ibid. citing Trust &
Loan v. Gauthier [1904] A.C. 94. What
ever its effect before the Statute of West-
minster, 1931, since that year it has force
as valid federal legislation.
(e) On general principles, the reference to
the Vice-Admiralty report applies as well to
its successor courts, s. 2(3) of the Colonial
Courts of Admiralty Act, 1890 so provides.
B. Third parties reserve the right in a higher
court if necessary to argue that the maritime
law and general civil law to be applied to an
action in damages for breach of warranty
against a shipwright referentially incorporated
by the combined effect of the above sections is
that of England as of 1925 or 1931. However,
they further submit that there is ancient sub
stantive law (effectively identical in its effect)
applicable under the principles laid down in
Hawker Industries v. Santa Maria Trading
(unreported pp. 5-6).
III. A. In addition to whatever law is referen-
tially incorporated as above, the Court under the
"incidentals doctrine" applies provincial law to
supplement—and often modify or temper the
rigour of, the law otherwise applicable:
Toronto Transport Commission v. The King
[1949] 3 D.L.R. 161 (S.C.C.), at pp. 165-166,
170-171: partial recovery permitted under
The Negligence Act of Ontario where
common law would have denied recovery
entirely;
Gartland Steamship Co. v. The Queen (1960)
22 D.L.R. (2d) 385 (S.C.C.), at pp. 408-409:
the same;
The Queen v. Murray [1965] 2 Ex.C.R. 663,
Jackett P. [1967] S.C.R. 262, 266-268, the
same;
Stein v. The 'Kathy K" (1972) 2 Lloyd's
Rep. 36, [1972] F.C. 585: the same between
subject and subject;
Resolute Shipping v. Jasmin Construction
[1978] 1 S.C.R. 907.
The non-statutory basis of most maritime law
permits the Court to update those parts found
objectionable as by Lord Esher M.R. in The
"Whitton" (1895) 8 Aspinall M.L.C. 110 in
like manner.
B. It is evident that although "incidental" the
outcome of a given case may in fact turn on
such "incidental" law. The test to be applied is
"what is the basic nature of the cause of
action?" e.g. where action is damages on an
affreightment contract.
The "separate contract" concept in The
"Camosun" [1909] A.C. 597 indicates that a
defence, even if non-maritime from the same
contract may be invoked in admiralty.
C. While (subject to s. 101) exclusive provin
cial jurisdiction over the constitution of courts
B.N.A. Act 92(14) creates a constitutional
imperative to limit the Federal Court strictly to
the "Administration of the laws of Canada",
there is equally a constitutional imperative in
administering such laws not to fail to apply
provincial law otherwise applicable "on the basis
of its independent validity", Quebec North
Shore Paper Company v. Canadian Pacific
Limited [1977] 2 S.C.R. 1054 at p. 1065. It is
virtually impossible for any case, even if in basic
nature founded on a federal cause of action, not
to have some "provincial incidents" upon which
the case may possibly turn—e.g. status or
capacity of a party other than the Federal
Crown.
D. Section 4 of the Manitoba Supplementary
Provisions Act (last consolidated at R.S.C.
1927, c. 124) incidentally seems to indicate all
provisions of the common law (included in the
phrase "laws of England" in relating to matters
within Federal Jurisdiction) are in principle fed
eral common law.
E. The "incidentals doctrine" is of long stand
ing in admiralty:
3 Blackstone's Commentaries (1809) p. 109
citing:
Co Rep 53 76 E.R. 1462;
Spark v. Stafford 2 Hardres 183 145 E.R.
442;
Ridly v. Egglesfield 2 Levinz 25 83 E.R.
436;
—Smart v. Wolfe 3 T.R. 323, 343 per
Ashurst J;
—The Haidee (1860) 2 Stuarts' V.A.R. 25,
31;
—The Farewell (1881) 1 Cook V.A.R. 282,
284;
—Howell Admiralty Practice in Canada p.
209.
F. While the above has been criticized
(Laskin: Canadian Constitutional Law, 4th ed.,
p. 796) it is submitted whatever may have been
the case before Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 2 referring to the Admi
ralty Act and thence to English exercise of
jurisdiction constitutes statutory sanction (by
referential incorporation of law—domestic or
foreign—applicable by the incidentals doctrine)
of the practice.
IV. Extent of the law referentially adopted by s.
2 "unlimited jurisdiction in relation to maritime
and admiralty matters":
A. Since "maritime al d admiralty" is a listing
of subjects of jurisdiction, it suffices if a subject
is either maritime or admiralty.
B. "Admiralty matters":
1. Dictionary or legal definitions of the word
in English being likely less than 600 years old
are likely to be tainted by connotations of
limited limitation. Story's definition (De
Lovio v. Boit (1817) 2 Gall. 398, (Gallison's
Reports) 475) based on those of the English
exponents and continental practitioners of
unlimited admiralty jurisdiction may confuse
the definition itself with its result.
2. In principle the true test is submitted to be
"matters validly confided to the jurisdiction of
the admiralty court" qua Admiralty Court.
Cp. "municipal court matters", etc.
3. Thus, in the exercise of navigation or ship
ping or like power, when Parliament confides
a new and wider jurisdiction under any provi
sion of s. 22(s) in any matter to the Admiralty
Court as such, the matter thereby becomes an
admiralty matter and referentially incorpo
rated law under s. 2(b) is available to "feed
the jurisdiction".
4. In more general terms, under s. 22(1)
statutory adoption of the concept of: the un
limited jurisdiction of a Court of inherently
limited jurisdiction (relating in some way to
the sea or navigable water) compels the use of
"experience not logic" for its understanding.
Whatever Holmes J. may have thought of
Henry V's law, consideration of the historical
context of statutory limits on admiralty juris
diction is inevitable—and fascinating. See
Twiss 3 Black Book lxxxi-ii. What is meant
by this and II B above is that historical
consideration of the extent of jurisdiction in
maritime law is compelled but possibly not of
the content.
5. "Unlimited jurisdiction in maritime mat
ters" must refer to the wide definition of
maritime: "connected with the sea" (and by
statutory extension s. 22(3) to other waters as
well), thus "navigation and shipping" is only
part of "maritime".
Thus on the plain meaning of the words one
must conclude that the presumption against
surplusage is rebutted and the phrase "navi-
gation and shipping" in s. 22(1) is added ex
abundi cautela. The contrary view leads to
absurdity: the word "other" in s. 22(1)
implies all Canadian maritime law is part of
laws relating to navigation and shipping
rather than the contrary. If this is so, it (1)
excludes laws under B.N.A. Act ss. 92(10)
and 91(13) and (9) and (2) is therefore con
trary to the definition in s. 2(b).
C. The historical extent of unlimited admiralty
jurisdiction following IV B 2 above, extended to
maritime causes in general:
1. Commissions of the admirals before 1389:
a. John Pavely 1361 (capitaneus et ductor
of the fleet: another name for admiral):
Brown A Compendious View of the Civil
Law (1802) p. 25 annexed giving power to
hold pleas "of all and singular things of the
said fleet and imprison, restrain and punish
offenders and to do all things that naturally
pertain to the said capitaneus and ductor as
they ought to be done of right and accord
ing to the maritime law". (Marsden: Select
Pleas in the Court of Admiralty, p. xii:
undersigned's translation).
b. Sir John de Beauchamp, Sir Robert
Herle (1361) Earl of Arundel (1386) ibid.:
"power ... of hearing plaints of all and
singular the matters that touch the office of
admiral and of taking cognisance of mari
time causes".
2. The Black Book of the Admiralty:
a. No. A 11: "... because that the admirall
is governor of the mariners and ought to .. .
defend them from all injuries against all
persons...". Rolls Series, ed. Sir Travers
Twiss, 1871—(6 Vol.), Vol. 1, p. 13.
b. No. C 35: (ibid., p. 83) "Item, lett
inquiry be made concerning all those whoe
doe sue any merchant, marriner, or other
person whatsoever at common law of the
land for anything of auntient right belong
ing to the maritime law, ..." and similar
wording in No. C 51 of the addition to the
Inquisition of Queensborough (ibid. p.
163). While the said addition may be of the
reign of Henry IV or V (Twiss Vol. 1 p.
lxxi) said Part C, while not in its present
form earlier than 1360 (ibid. p. xlvi) is
nevertheless as a whole of the reign of
Edward III (ibid. Vol III p. xii).
D. Such "maritime law" and "maritime
causes" refer to the body of general Western
European maritime law of the time (which was
part of the ius gentium)
1. Generally Santa Maria Trading pp. 5-6;
2. As ius gentium: 1 Holdsworth: A History
of English Law, 1922, p. 26, citing:
Luke v. Lyde (1759) 2 Burr 882, at p. 887
per Lord Mansfield;
3. In England it was not the common law:
(a) Preamble to 13 Rich. II, c. 5: "in preju
dice of our Lord the King, and the common
Law of the Realm";
(b) Commission of Oyer and Terminer of
1361 to try a case of robbery and murder at
sea recalled because "felonies, trespasses or
injuries done upon the sea ought not to be
determined before our justices at the
common law but before our admirals
according to the maritime law": (Marsden:
Law and Custom of the Sea, 85-89
(1915));
(c) Oath of the Admiral to make summary
and full process "selon boy marisme et
anciennes coustumes de la mer", 1 Black
Book p. 168, No. D 71;
4. Common to Western Europe:
(a) Scrutton: "Roman Law in the Admi
ralty", 1 Select Essays in Anglo-American
Legal History 230-233;
(b) 3 Kent's Commentaries (1892) pp.
42-43;
(c) Williams and Bruce Admiralty Juris
diction p. 4.
E. Ascertaining the limits of mediaeval mari
time law:
1. "And here it may be proper to guard
against the mistake, that the particulars
enumerated in these various regulations and
ordinances comprehend and limit the whole
extent of the jurisdiction of the admiralty.
They cannot legally be considered in any
other light, than as occasional directions to a
court already existing with general powers, to
clear away a doubt, or to enforce more exact
ly an observance of an existing right or
duty"—per Story J. in De Lovio v. Boit, p.
405.
2. The reference in s. 2(b) is not to "unlimit-
ed jurisdiction, limited to cases where a spe
cific mediaeval precedent survives". The true
test, it is submitted, is whether maritime laws
indicate in principle the subject was governed
by maritime law and hence fell within the
admiral's jurisdiction.
F. The work of shipwrights fell within the
admiral's jurisdiction:
1. Black Book: No. C 38 (Vol. 1, p. 87)
addition to Queensborough Inquisition, No. D
66 (ibid., p. 167);
2. Consolato del Mar—a work of general
application in maritime law (unlike e.g. those
of Pisa and Jerusalem: Twiss: Vol. 2 Black
Book p. xlvii), Vol. 3, p. lxxxvi-ii.
3 Kent's Commentaries (1892) Pt. V. Lec.
XLII p. 42, Twiss (ibid.) Vol. 3 p. xxvi-vii,
lxxxi, Vol. 4, p. xcv. Cited as authority in:
Luke v. Lyde (supra), p. 289;
The Aquila 1 C. Rob. 44;
The Ceylon 1 Dods 110;
Story: De Lovio v. Boit passim
Benedict: Admiralty 5 ed. p. 94;
(a) Part 1 of the Consolato: Order of the
Consuls Jurisdiction of Admiralty Court:
(1) fitting out of ships, Chapter XXII—
cited by Story, pp. 400, 475;
(2) contracts in the Customs of the Sea
(ibid.) CXXII and chap. XXXI (Black
Book Appendix Vol. 4, pp. 473-475,
483).
(b) Part 2 of the Consolato: Customs of
the Sea:
(1) Shipwrights are liable to cancellation
and damages for faulty work and its
consequences:
Chapter 8 Vol. 3 pp. 63-69;
Chapter 9 (exceptions) p. 73 in fine;
Chapter 227 pp. 525-6;
(2) The text of these passages shows
they apply equally to building (and cf.
Chapter 7, Vol. 3, p. 63) and repairing:
"any work".
3. There is thus substantial substantive law
(to which Thurlow A.C.J. was not referred in
Canadian Vickers Ltd.) dealing with the
question in causes of counterclaim and third
party proceedings herein, as well as substan
tial authority that shipwrights' contracts are
maritime. His judgment—but on those two
points only—as well as those in Skaarup
Shipping [1978] 2 F.C. 361 and Delta
Hydraulic must be taken to be overruled by
Santa Maria Trading and Benson Bros. v.
The `Nemesis" (9 June 1978) F.C.A. No.
A-126-77.
4. The American cases excluding shipbuild
ing contracts:
(1) originate in a limited view of admiralty
jurisdiction (only that cognisable in admi
ralty in 1789); The People's Ferry Com
pany of Boston v. Beers 20 How 393 U.S.
Sup. Ct. 1857 at p. 401 and inapplicable to
the Canadian case. Further overruled in
principle: The Thomas Barium (1934)
A.M.C. 1417, 1434: mortgages, formerly
excluded, brought by statute within juris
diction;
(2) are irrelevant to the present case as the
American admiralty will take jurisdiction
on a tort, or breach of implied warranty,
theory of unseaworthiness: cases collected
at (1973) 47 Tulane L.R. 540-541. (There
is authority for the view that in English law
also the action of warranty does not neces
sarily sound in contract: Waddams Prod
ucts Liability pp. 1-9);
5. If a shipbuilding contract is to be charac
terized as a sale (British Shipping Laws, vol.
13, paras. 138-142 and cases therein)
nevertheless:
a. It is a subspecies of sale, specifically
regulated by the above provisions of the
Black Book and the Consolato;
b. Sale of ships as a whole is within admi
ralty jurisdiction:
Consolato (Order of Consuls):
(1) Chapter XXII Black Book,
Appendix Vol. 4, p. 473 (as Twiss
points out (Vol. 3, p. lxxv) this passage
as cited in De Lovio v. Boit p. 400
"partition of ships" is from a defective
Italian variant of the Consolato);
(2) Sales of ships—or shares there-
in—(cp. Canada Shipping Act, R.S.C.
1970, c. S-9, s. 10(a)) are extensively
dealt with in the Customs of the Sea
(Black Book Supplement Vol. 3):
Chapter 2 p. 50;
Chapter 10 p. 75;
Chapter 11 pp. 77-81;
Chapter 200 pp. 409-413;
c. Even for some time after the statutes of
Richard II the Admiralty Court took juris
diction over sales:
2 Marsden: Select Pleas LX: appeal on
case of sale, warranty of title and repairs;
1 Marsden (ibid.) p. lxxiii, items 1 and 4
summarizing contents of early files of
16th Century Admiralty libels.
6. Finally, it is submitted that the criterion in
the Admiral's Commissions from 1525 Duke
of Richmond (1 Marsden: Select Pleas,
LXXXIII), to G. O. Stuart (2 Stuarts'
V.A.R. 377), giving jurisdiction in causes be
tween shipowners (here Davie and the Queen
at different times)—evidently qua shipown-
ers—and others is one within which the
present case falls. The terms of these commis-
sions—which also cover shipwrights—may
have seemed "extravagant" in the context of
the statutes of Richard II—as interpreted—to
their own advantage—by the common law
courts, but appear in fact to follow closely the
subjects set out in the Black Book.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.