Judgments

Decision Information

Davie Shipbuilding Limited v. The Queen

Collection	Judgments
Date	1978-07-17
Report citation	[1979] 2 F.C. 235
File numbers	T-1908-72
Subjects	Maritime Law

Decision Content

T-1908-72

Davie Shipbuilding Limited and Canada Steam ship Lines Limited (Plaintiffs)

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,

(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.;

(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;

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.

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