Regulations brought into effect in November 2010 satisfy Canada's obligation as a contracting state to the International Convention for the Safety of Life at Sea to require that certain of its passenger vessels and cargo vessels transmit long-range identification and tracking information to other participating states. The regulations are intended to increase marine safety and enhance the security of Canada's marine environment.
Fourth Officer Karl Lilgert pleaded not guilty to charges of criminal negligence causing death in connection with the 2006 sinking of the passenger ferry the Queen of the North. The criminal justice branch of the British Columbia Ministry of the Attorney General appears to have concluded that the available evidence does not support the charging of any officer or crew member other than Lilgert with respect to the sinking.
The new Maritime Occupational Health and Safety Regulations under the Canada Labour Code are now in force. Part of a govemment effort to ensure that "employees working on board vessels enjoy the same level of health and safety protection as off‑board employees", the new regulations apply to employees employed on vessels registered in Canada or uncommissioned vessels of the Canadian government, among others.
In British Columbia, tort feasors liable for personal injuries suffered in a marine context are now also subject to claims by the provincial government for the recovery of healthcare costs expended (past and future) by the Ministry of Health relating to the injury pursuant to the Health Care Costs Recovery Act. The British Columbia Supreme Court recently determined an important point on when the act applies retrospectively.
In a recent case the Supreme Court of Canada considered the matter of payments in lieu of property taxes made by federal corporations (including major Canadian ports) to municipalities in which these corporations are located. This is an important issue for Canadian ports, as making payments in lieu of taxes can affect their economic viability.
In a recent case the British Columbia Court of Appeal refused to award 'new for old' repair costs to a vessel damaged by a collision and applied a rate of depreciation against the repair costs to account for betterment. The court stated that betterment is a question of fact to be determined on the evidence and with regard to what is reasonable in a particular case.
In a recent case the Federal Court of Appeal ruled that a choice of law clause in a necessaries supply contract should be upheld unless there is a compelling case to be made that another jurisdiction has a closer and more substantial connection to the transaction.
The Supreme Court of Canada recently dismissed the application for leave to appeal the decision of the Federal Court of Appeal in the Cougar Ace Case, with costs. By declining the opportunity to consider the issues raised in this case, the debate over the interpretation of Section 46(1) of the Marine Liability Act may well continue in future cases.
In a recent case the Federal Court considered the interesting problem of how to deal with the apparent intention of the insurer and the insured to extend the benefit of a waiver of subrogation to parties not specifically named on the policy. The Federal Court demonstrated a broad, purposive approach in dealing with this problem - one that left the doctrine of privity in its wake.
The Federal Court of Appeal has further weakened the effectiveness of Section 46(1) of the Marine Liability Act by confirming that where the owner of damaged or lost cargo is Canadian, Section 46(1) merely opens the door for the Canadian plaintiff to commence an action in Canada; the Canadian court may always decline jurisdiction on the basis of forum non conveniens (inappropriate forum).
In a recent case the Federal Court of Appeal considered both the meaning of ‘shipper’ within Section 137 of the Canada Transportation Act and the scope of the Himalaya clause. Did the trial judge err in his conclusions regarding which party was the shipper and which parties could limit their liability?
Non-resident marine insurers which conduct business in connection with Canada may wish to be aware of recent legislation amending the Insurance Companies Act. Bill C-37 will require non-resident marine insurance companies to be registered whenever they are “insuring in Canada a risk”.
On July 1 2001 the Canada Shipping Act 2001 replaced the Canada Shipping Act as the primary legislation governing marine transport, pollution and safety. This update addresses some of the changes introduced by Parts 8 and 9 of the new act, which pertain to ship-source pollution, the pollution regulations which are now in force and issues of enforcement.
In a recent decision the British Columbia Supreme Court held that an applicant for an arrest warrant must also meet the requirements for an application for a Mareva injunction. The decision means that the requirements for a successful application for a warrant to arrest property in an action in rem have become more onerous than they appear on the face of the relevant court rules.
A recent decision of the Federal Court of Appeal has significantly weakened the applicability of Section 46 of the Marine Liability Act 2001. Section 46(1) permits a party to a contract of carriage by sea to commence legal proceedings in Canada despite the presence of a choice of jurisdiction clause stipulating a foreign forum, provided that the party establishes one of three minimal connections to Canada.
The Supreme Court has affirmed that Canadian steamship inspectors have the authority under the Canada Shipping Act to inspect non-Canadian vessels and detain them if they are found to be unseaworthy. It also confirmed the three stages that shipowners must go through in order to succeed in an action for damages arising from this detention.
The international rules of carriage recognize the inherent risk associated with deck carriage, a risk which is most often managed through the use of exemption clauses in the contract. In Canada, carriers may rely on an exclusion clause for deck cargo provided certain conditions are met under the Hague/Visby Rules, whereas the United States continues to rely on protectionist legislation.
The Federal Court of Appeal recently adopted the House of Lords' broad construction of Article 4, Rule 6 of the Hague Convention, establishing that goods which may at first glance look innocuous, may in fact be dangerous goods. This increases the burden on cargo owners to ensure that they properly inform carriers of any possible danger associated with the cargo.
The Federal Court of Appeal has adjourned an appeal in a dispute over jurisdiction. Although the bill of lading issued by the shipowner contained a jurisdiction clause stating that any dispute was to be governed by English law, when cartons went missing from the shipment the Canadian cargo insurers brought a subrogation action against the shipowner in the Canadian courts.