International and Canadian Maritime Law

the Continuum of international maritime law and Canadian maritime law explaining a complex relationship in his classic easy on the relationship between international law and domestic law in Canada the late Ronald John McDonald found the thoughts of describing the relationship to be necessarily complex he saw international law and domestic law interacting along abroad front with multiple subject matter points of contact and through legislative executive and judicial structures but without an identifiable pattern and with the vehicle this further compounded by Source diversities 3D customary and general international law today notwithstanding the Persistence of complexity in the relationship between International maritime law and Canadian maritime law elements of structure and process are also present International maritime law is a branch of international law carrying across public and private law it has helped the Divine and make more uniform a very complex area of law both within and outside Canada it consists of a regulatory system for international shipping for the purposes of trade facilitation Maritime safety environment protection and security it is one of the most detailed and systematically regulated field of international law it is also a field where industry develops standard contract draw heavily from International instrument and Market practice aimed at harmonization the

domestic interaction is Canadian maritime law a body of federal law consisting of two sources namely legislation under the federal power of the navigation and shipping and Maritime common law Canadian maritime law is for the most part an extension of the International System into the domestic public and private law spheres hence the sources are both domestic and international and the issues that arise are open transnational Professor McDonald argued about the absence of constitutional and other statory provision on Point Post uncertainty in the relationship between domestic law and international law in general however in the maritime field the legislation of Canada's commitment as a state party to International Convention is an unco uncontroversial matter rather potential difficulties including constitutional issues may arise during the characterization of the cause of action as maritime if a ghost is characterized as Maritime federal law which include transformed International maritime law will apply if the cause also in marriage setting is characterized as in relation to a provincial undertaking or

property and civil rights then provincial law will apply while in principle this division is clear there can be gray areas for example if a matter concerning a local understanding occurs in a marine context such as occupational health and safety on board fishing fossil provincial occupational health and safety and federal Maritime safety rules and standard may have parallel application a possible concern here is that provincial law unlike federal law isn't necessarily uniform across the country just this love Forest victim in wet bread versus Wally regarding the necessity of University in Canadian maritime law with respect to the rules of the road and toward liability can be argued with equal plugins for maritime safety on board all vessel irrespective of function this article discusses the relationship between International maritime law and Canadian maritime law from statutory and judge mid-law perspective the purpose is to explore whether there is a discernible pattern behind this complex relationship and if so what it is and how it can be explained the relationship is explored through Canada's implementation of international

Maritime convention to which it is or is not the body and consideration of Canadian case law where Court have judicially noticed International maritime law in different ways prior to tackling this task in turn the article reveals the sources of international maritime law and the Constitutional framework as it Bears on Canadian maritime law the discussion leads to Observation on judicial policy in applying International maritime law sources of international maritime law traditional international law sources the traditional starting point of discussion on the sources of international law is article 38 of the stated of the international court of justice to the extent that it speaks to the law to be administered to dispute at war between so foreign State article 38 reversed to four sources three of which are considered in this article first are International Convention expressly recognized by State this constitutes the bulk of international maritime law in order for the provision of an international treaty to have direct force in Canada it is necessary for the instrument to be transformed legislated into domestic law the requirement of Express recognition in article 38 makes it unclear whether International instrument to which Canada isn't a party but which have been legislated or whose underlying values are recognized by a Canadian Court as reflecting Canadian values constitute a source of international law second there is international custom as evident of the general practice accepted as law by divination International custom is unwritten law and it may or may not be codified although frequently the evidence of the existence of the custom may be written unlike invention custom doesn't require expressive rain State concern for its emergent and eventual binding of the ready this has significance for how Canadian Court know this custom as a source of international law as will be seen below state are bound by customary law irrespective of whether they are parties to convention in which it is codified much maritime law has customary origin and despite extensive codification and further development as will be seen below uncodified custom Remain the customary law making process is ongoing old custom evolve and new Norm emerge through the combined force of State practice and the opinion juries they are uncertified

Maritime custom in international maritime law that have received Korean notice in Canada third general principles of law recognized by states are also a source but are not addressed in this article finally article 38 includes as a secondary source subject to the provision of article 59 judicial decision and the teachings of the most highly qualified publicist of the various Nations as subsidiary mean for the determination of rules of law insofar as Canadian judicial decision are concerned Justice law for rest underline the role of the Supreme Court of Canada's judgment in contributing to the further development of international law and in existing other jurisdiction a discussion of the source of international maritime law however would not be complete without further consideration of international practices not captured by the international Court stated these are revealed in the following section International Maritime soft law and Industry practices in addition to traditional sources of international law international and domestic lawmakers and Industry also look to Alternative sources for guidance of state and Industry practice with respect to navigation and shipping these sources can be described in part as International Maritime soft law and in other respect as Maritime industry practices first the international Maritime organization or IMO adopts resolution codes and guideline of the voluntary character which do not necessarily relate to obligation under any of the convention for which it has secretariate responsibilities although many are related in some way thank you