USQUE AD MARE
A History of the Canadian Coast Guard and Marine Services
by Thomas E. Appleton

The Canada Shipping Act

The Marine Regulations Branch carries out much of its responsibilities under Chapter 29 of the Revised Statues of Canada, known as the Canada Shipping Act. This enactment, bound in a volume weighting three pounds and running to 735 sections in 18 parts, to say nothing of schedules, directs the course to be followed in legal matters pertaining to ships and seamen. Amended from time to time in countless deletions and substitutions, the classic façade of the original prose of the enabling Act has degenerated, in long and involved sections containing regulations, to the language of mere officialdom. Despite this literary crumbling the determined reader may yet find long stretches of uncultured work between the stately entrance of "An Act Respecting Shipping" and the final exit of the index under "Plaintiff's claim and affidavit."

This highly technical legislation is a direct descendant of the first Canada Shipping Act of 1906 which was revised in 1927 and re-enacted in 1934. With the many changes which have taken place in shipping since the thirties a new and modern act is overdue. Despite these changes, and the complexities of International Conventions, the 1934 enactment, although revised in 1952, has already lasted longer than the 28 years separating it from the first Canadian act of 1906. This turn, by way of the British Merchant Shipping Acts of 1894 and 1854, contains phrases whose origins are lost in the antiquities of sea law.

When the Parliament at Westminster brought in the Merchant Shipping Act of 1854, the intention of the legislators was to regulate the conduct of British shipping throughout the world and it mattered little whether vessels were owned in England or Canada, or in any other of the British possessions for that matter, for all were trading under the same flag in an economic system which was still cast, to a great extent, in the mould of the navigation acts of the preceding century. In the year 1854 none of the Dominions were in existence and, while Canadian provinces passed many acts relating to local shipping, they were void, if in a specific case, to use the legal term, they were "repugnant" to the law of England. This indeed had held from an early stage of colonial development under a theory that the acts of any colonial legislature were void if they conflicted with those of the Parliament of the United Kingdom.

This position was widened somewhat by the Colonial Laws Validity Act of 1865 which, to remove unrealistic limitations in the jurisdiction of colonial legislatures, empowered them to make laws even though repugnant to English law, and declared that such would be invalid only to the extent of their conflict with the relevant British act. Thus, under the Colonial Laws Validity Act, the legal position remained that statutes in respect of merchant shipping passed by the Parliament of the United Kingdom, whether before or after the constitutional date of 1867, were supreme over repugnant colonial laws.

In matter of certificates for masters and mates for example, we have noted that Ottawa was unable to legislate for the introduction of examinations in Canada until the Parliament at Westminster authorized such a procedure. This was done by the Merchant Shipping (Colonial) Act of 1869 which enabled the legislature of a British possession to pass laws for the regulation of its coasting trade, to establish registrars of British shipping, and to declare that examinations of like standard to those held in Britain could be acknowledged by the granting of colonial certificates of the same force.

By the time that the Parliament of Canada passed the first Canada Shipping Act of 1906, the constitutional position had changed in fact if not in theory and the Act, though based broadly on the Merchant Shipping Act, was framed to meet Canadian requirements and to incorporate Canadian legislation. In recognition of the changing constitutional positions of all the British Dominions, the United Kingdom Parliament gradually ceased to exercise its rights over colonial shipping and, form 1911 onwards, all shipping legislation passed at Westminster was so framed as not to extend to the Dominions.

After the first world war, progress towards Canadian autonomy became more apparent. Following the Imperial Conferences of 1926 and 1930, recommendations were confirmed and ratified by the passing of the Statue of Westminster in 1931 which, among other portentous matters, repealed the Colonial Laws Validity Act of 1865 and declared that henceforward no law passed by a Dominion Parliament would be void or inoperative on the grounds of repugnance to the law of England. In the negotiations leading up to the Statue of Westminster much thought was given to the question of shipping, and a conference on dominion merchant shipping legislation was held in London in 1929. Canada was represented by the then Minister of Justice, the Hon. Ernest Lapointe, who was particularly well qualified to review the position from his experience as Minister of Marine and Fisheries. As a result of this conference, the ground was cleared for the full and complete legislative authority of each dominion over all ships within its territorial waters or engaged in its coasting trade, and over its own ships within in international waters, wherever they might be. There was a strong presumption in favor of concerted action between countries of the British Commonwealth of Nations as to the uniformity of their laws, a principle which is still regarded today in matters of common interest although of diminishing importance in the face of wider international co-operation and a redistribution of shipping influence throughout the world.

But in tracing the origins of the Canada Shipping Act from its first root in the soil of English maritime law, we must not lose sight of two other important roots, old and new, which have enriched the Act of 1906.

The second and older root springs from Canadian laws which, enacted by colonial and provincial legislatures from the late eighteenth century onwards, were followed, after Confederation, by a series of acts of the Canadian Parliament. These enactments, covering many different aspects of shipping law, were necessary to amplify and extend the general philosophy of the British Merchant Shipping Act in terms of Canadian conditions, and they form a very important component of the Act of 1906 which, in effect, consolidated Canadian and British enactments.

The third and most recent root, resulting from the birth of modern shipping technology, which may be said to date from 1914 when the first International Convention on the Safety of Life at Sea was held, stems from the work of many nations. This meeting, which illuminated a sea of hitherto pragmatic regulations by the light of technical method and reasoning, was rendered ineffective for a time because of the Great War. However it was followed by others in 1929, 1948 and 1960 which became known, all over the world, as the SOLAS Conventions. By 1959 the supporting work for the SOLAS Conventions had become continuous and, in that year, the secretariat was placed in the hands of a specialized agency of the United Nations called the Inter-Governmental Maritime Consultative Organization, known as IMCO for short, with headquarters in London.

It will be seen that the keynote of the Canada Shipping Act is one of safety, founded on the best technical knowledge available. Although some of the early legislation was administrative, laws for the safety of rafts and vessels began to appear in the opening years of the nineteenth century. As the safety of shipping is the main task of the Marine Services of the Department today, it will be convenient to trace these developments through the history of vessel inspection and its influence on the Canada Shipping Act.