February 13, 1914

LIB

Frank Oliver

Liberal

Mr. OLIVER:

With your permission, Mr. Speaker, and the permission of the House, I shall be glad to tell my hon. friend.

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CON

Thomas Simpson Sproule (Speaker of the House of Commons)

Conservative (1867-1942)

Mr. SPEAKER:

This question has been propounded more than once by the hon. member for Edmonton; the answer has now been given, and the matter brought to end there. A debate upon it should not be allowed.

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LIB

Frank Oliver

Liberal

Mr. OLIVER:

My hon. friend, standing

in his place, himself misstated the position as he read it. I merely call the attention of the House to that fact.

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MERCHANT SHIPPING ACT AMENDMENT.


Hon. J. D. HAZEN (Minister of Marine and Fisheries) moved the second reading of Bill No. 21, to amend the law relating to merchant shipping, with a view to enabling certain conventions to be carried into effect. He said: Mr. (Speaker, in moving the second reading of this Bill, I think it would be well that I should fully state to the House its purpose and object, and the events which have led to its being introduced at the present time.


CON

Thomas Simpson Sproule (Speaker of the House of Commons)

Conservative (1867-1942)

Mr. SPEAKER:

My attention has been drawn to this Bill. I thought that as it is a Bill relating to trade and commerce it should properly be introduced by a resolution. However, I took the trouble to have that gone into, and I hold in my hand a list of Bills regarding shipping which have been introduced in this House, and the great bulk of them have been introduced simply on motion. Therefore, while my opinion was that a Bill in relation to shipping ought to be introduced by resolution, in view of this practice having been carried on to the extent it has, I did not feel that it was desirable for me to object to this Bill being introduced without a resolution.

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CON

John Douglas Hazen (Minister of Marine and Fisheries; Minister of the Naval Service)

Conservative (1867-1942)

Mr. HAZEN:

The purpose of the present Bill is to amend the law in respect to collisions and salvage at sea so as to enable the Government of Canada to give effect to their adherence to the International Maritime Conventions on these -subjects, which were signed at Brussels on the 23rd September, 1910. Before giving an explanation of the Bill, it would, perhaps, be well to give a brief statement concerning these conventions.

The first great step taken in the way of a universal maritime code was in 1864, when, as the result of an international eonfer-.ence, the regulations foT preventing collisions at sea, commonly known as the Rules of the Road, came into force. They were amended in 1884, and modified and revised in 1897.

There has been for a number of years an international maritime committee for the consideration of all such matters. It includes amongst its members prominent men engaged in shipping, or interested in it, as well as eminent jurists of every civilized nation. The efforts of this voluntary body have been strongly supported by the Belgian Government, and -the international conferences which have been held from time to time have convened in that country. The method of inquiry adopted by the International Committee is to issue to the different national -associations a se ries of questions relating to the subjects to be dealt with -at the -next -conference. The [DOT] replies are -subsequently considered, and the principles agreed upon are then embodied in a series of resolutions. These resolutions form, in turn, the basis of the labours of a subcommittee nominated by the Central Bureau and containing, as far as may be, representatives of all the different systems of law. This subcommittee prepares a draft code for discussion at the diplomatic conference where it is critically examined by the accredited representatives of the powers before being reported to the different Governments. It will thus be seen that the proposals are not hurriedly submitted for consideration, but represent patient thought, discussion and revision by persons in the several maritime countries who are best able to deal with the matters in question.

There is a British Maritime Committee for studying such questions as the one now under discussion. It has amongst its members -some of the most influential shipowners and Admiralty judges in the United Kingdom.

With a view to the unification of certain rules of law respecting collisions and as-

to the fault of one ship, to inscrutable fault and to inevitable accident, and substantially reproduces the British law.

The first great change in the law is in the apportionment of damages. The new rule does away with the British Admiralty rule with regard to the division of loss where two ships are to blame. Heretofore where both ships were to blame the amount of the damage to both ships was added together and each ship paid half. This rough and ready method of apportioning the damages was probably practical justice in a general way. But it would not always be so. For instance one of the ships in collision has committed some merely technical violation of the Eules of the Eoad which may have contributed to the accident; the other ship has been navigated utterly wrong from first to last. The vessel which is technically to blame is slightly damaged; the vessel really to blame has been sunk.

The add arid divide principle in such a case would be a travesty on justice. The British rule rests on no recognized principle of law; it is not even an old established rule and it is not in conformity with the ordinary rule of the common law as to contributary negligence, under which neither party would be entitled to recover anything. It is better therefore to abolish it, and to place the court in a position to do substantial justice to both parties Foreign nations will not assent to the introduction of the British common law rule. The proportional rule exists as part of the law of nearly all the maritime nations except Great Britain. The rule that neither can recover if both are to blame appears in the laws of Holland, Italy and Spain. Germany abandoned it in 1900, and adopted the proportional rule.

In regard to cargo claims, the matter is very clearly put in one of the special articles on the unification of the Maritime Law which appeared in the London Times, in January, 1909, and I have obtained much of the information now given. These very interesting articles were evidently written by one who is deeply versed in the whole question. He says:

It will be observed that It is proposed that the same rule should apply in cases where the plaintiff is the cargo owner, and that the damage should be divided between the ships in proportion to the gravity of their faults, and without the plaintiff having an action jointly against the owners of both ships for the whole of his loss.

By English law where both ships are to blame the cargo owner can recover half his

damages, no more and no less, against each ship unless he has by contract relieved the owners of the carrying ship from liability for negligence, in which case he can only proceed against the other ship, and no matter how great may be his fault, he, who is entirely blameless, can only recover one-half of the loss. Before the passage of this convention under the French law, a British ship, although only technically at fault, would be liable in a French port to a suit for full damages to cargo if the other ship in default could not be proceeded against by reason of the terms of her bill of lading.

As to error of pilotage, under the provisions of the Imperial Merchant Shipping Act, the owner or master of a ship is not answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law. The only other countries having such a law are Italy and Germany. Both have agreed to the present convention. In Canada no owner of a vessel is free by reason of his employing a licensed pilot. It must be borne in mind that in Canada the employment of a pilot is not compulsory. The payment of the pilotage fee or half fee, as the case may be, is compulsory. But no vessel is obliged to take a licensed pilot on board. The provisions of the convention do not affect the law as it is in Canada to-day.

As to rendering assistance, the convention abolishes presumption of fault for a collision in cases where a vessel fails to stand by after collision. She is bound to stand by, but it is not prima facie evidence of fault for the casualty if she does not do so. The provisions of the Canadian Shipping Act in this respect are amended by repealing such part of section 920 as is necessary to give effect to the requirements of the convention.

As to salvage, there is the duty of every ship to render assistance to another ship in distress, even an enemy. Then the time within which an action to recover salvage is limited to two years. This latter provision was necessary owing to the various and complicated laws as regards the time limit in force in other countries. There were also differences in the laws of the other maritime powers as to the rate of remuneration of the salvors which led to endless trouble. All these differences have been abolished. The remuneration is fixed according to the success obtained, the meritoriousness of the services, the danger incurred by the vessel salved and her cargo, and by the salving

vessel and the salvors, the expenses and damage incurred and the value of the salved property and the assisting vessel, thus substantially reproducing British law.

Having given as briefly as possible the principal points of the two conventions, there remains only to be made a statement .of the position of affairs at present. A copy of the two conventions, printed in English and French, [DOT] has been furnished to each member of the House, so that the provisions of the conventions may be familiar to them when this Bill is under consideration. The conventions were, it may be stated, signed in the French language only.

The Government deemed it advisable to give their adherence to these conventions and so notified His Majesty's Government at the same time, giving an assurance that legislation would be introduced at the last session of Parliament to amend the law in Canada so as to conform to the provisions of the conventions.

His Majesty's Government deposited the King's ratifications for the United Kingdom on the 1st September, 1912, and similar ratifications for India and certain colonies and possessions-the self-governing Dominions were not included-on the 5th December, 1912.

The United States Senate ratified the conventions on January 18, 1912, and an Act to give it effect was approved on August 1.

There is just one point that might be again referred to, and that is the advisability of applying the provisions of the conventions to the inland boundary waters between Canada and the United States. It would certainly be an advantage to have a uniform law, but until that question has been considered by the Governments of the two countries nothing can be done to extend the application of the conventions. That is why the Bill now before the House is drafted so as hot to apply to the inland waters of Canada, above Montreal.

It will be noticed that there is a suspending clause at the end of the Bill. This is inserted so that the Act when passed may be submitted to His Majesty's Government for His'Majesty's approval, under the provisions of the Imperial Merchant Shipping Act, 1894. By adopting that course no question can subsequently arise as to the validity of this piece 'of legislation. Copies of the two conventions are on the table of the House.

It will be seen, therefore, that the object of this Bill is to give legislative effect to the convention entered into at Belgium, for the uniformity of laws regarding sal-

vage, collisions and matters of that sort, so that there may be uniform regulations among the different maritime countries of the world, thereby saving a great deal of the trouble and inconvenience that results at the present time. The convention has already been ratified by the United Kingdom and the United States. The Government of Canada undertook to approve of this convention before the present Administration came into power, and the present Administration approved of their action in so doing. It was my intention to have introduced the Bill at the last session of Parliament, but for reasons that perhaps it is not necessary to enter into now, the matter was deferred until the present session.

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LIB

John Howard Sinclair

Liberal

Mr. SINCLAIR:

Will my hon. friend explain why the Bill has not been made applicable to the Great Lakes and inland waters generally ?

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CON

John Douglas Hazen (Minister of Marine and Fisheries; Minister of the Naval Service)

Conservative (1867-1942)

Mr. HAZEN:

At these conventions, the question of inland waters was not dealt with. As the only nations, practically, that trade upon the inland waters of Canada and the United States, are these two countries themselves, and as the trade of the two countries on these waters is very closely interwoven, it was thought that it would be better for a conference to be held between Canada and the United States before the adoption of these rules. It might be that rules which are applicable to deep sea navigation would not be applicable to inland navigation; and I might say to my hon. friend from Guysborough that at the conference recently held in London with regard to The Safety of Ships at Sea-[DOT] that was the title of the conference-the convention entered into, applies to the sea only and not to the lakes. On Monday next, I hope to lay that convention on the table of the House, with a summary which I am now preparing of the results of the convention. While that convention does not apply to the Great Lakes, it was thought by those who were at London representing the United States and Canada, that the recommendations and agreements come to at that convention might serve as a basis for future legislation introduced in the United States and Canada, with regard to the safety of ships on the Great Lakes.

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LIB

John Howard Sinclair

Liberal

Mr. SINCLAIR:

I understand the law in regard to collisions on inland and coastal waters to be the same now in Canada and the United States, and that this Bill will vary it and introduce new provisions as far as the coastal waters are concerned be-

low the port of Montreal but will not change the law in regard to collisions on the Great Lakes?

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CON

John Douglas Hazen (Minister of Marine and Fisheries; Minister of the Naval Service)

Conservative (1867-1942)

Mr. HAZEN:

That is absolutely correct.

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LIB

Alexander Kenneth Maclean

Liberal

Mr. A. K. MACLEAN:

Is the United

States a party to this convention?

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CON

John Douglas Hazen (Minister of Marine and Fisheries; Minister of the Naval Service)

Conservative (1867-1942)

Mr. HAZEN:

Yes, the United States was not only a party to it but the United States has passed the necessary legislation in order to make the convention effective in so far as that country is concerned. It did that in 1912.

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LIB
CON

John Douglas Hazen (Minister of Marine and Fisheries; Minister of the Naval Service)

Conservative (1867-1942)

Mr. HAZEN:

I think that probably it

would be, but my hon. friend will see this distinction, that practically the only shipping there is on the Great Lakes is the shipping of Canada and the United States.

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LIB
CON

John Douglas Hazen (Minister of Marine and Fisheries; Minister of the Naval Service)

Conservative (1867-1942)

Mr. HAZEN:

Yes/. This convention applies practically to all the maritime nations of the world which were represented at that conference, and one can readily sea how much more necessary it is to have uniform regulations regarding all these different nations whose vessels sail upon the high seas than it would be between two countries like Canada and the United States situated so close to each other and whose laws at the present time closely approximate one to another. The basis of the Admiralty laws in the United States is practicaly the same as the basis of the Admiralty laws in Canada. The United States and Canada practically derive their laws from a common source, and it will be found in regard to this question of collision and salvage upon the lakes that there will be very little difference between the United States and Canada. This question will be made a matter of further consideration between these two countries alone.

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LIB
CON

John Douglas Hazen (Minister of Marine and Fisheries; Minister of the Naval Service)

Conservative (1867-1942)

Mr. HAZEN:

Yes, this Bill has been

drawn after full consultation with the Justice Department and it is one giving effect to the convention. Before being submitted to the House the Bill was considered by shipping authorities in Great Britain. There is a suspending clause added to the Bill and it is proposed to insert in the Bill that when the Act is passed

it shall be submitted to His Majesty's Government for approval under a provision of the Maritime Shipping Aqt, 1894. By adopting this course, and having the approval of His Majesty's Government, no question will arise in future in regard to its validity.

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LIB

John Howard Sinclair

Liberal

Mr. SINCLAIR:

I would not venture any criticism at all of the Bill and I have no objection to it. I think this Bill is a good one, but there are one or two questions in regard to it and I think this would be a proper time to bring them to the minister's attention. For example, take clause 8 of the Bill. In this clause provision is made that the appointment of salvage will be made by the law of the country to which the vessel belongs. The clause ' is as follows:

Where any dispute arises as to the apportionment-

In the Bill it is ' appointment ' but I understand that it is intended to be ' apportionment ' and that this is a clerical error.

Where any dispute arises as to the apportionment of any amount of salvage, among the owners, master, pilot, crew, and other persons in the service of any foreign vessel, the amount shall he apportioned by the court or person making the apportionment in accordance with the law of the country to which the vessel belongs.

We have a regulation in regard to that question in section 919 of the Canadian Shipping Act, which I think conflicts with that clause. Section 919 reads as follows:

Whenever foreign ships are within Canadian waters the regulations for preventing collisions in force for the time being under the provisions of this Part, and all provisions of this Part relating to such rules, or otherwise relating to collisions, shall apply to such foreign ships; and, in any case arising in any court of justice in Canada concerning matters happening within Canadian waters foreign ships shall, so far as regards such regulations and provisions, be treated as if they were British or Canadian ships.

I would like the minister to look into these two clauses and see if they do not conflict one with the other. We provide in that clause that the apportionment of the salvage shall be made by the court of the country to which the vessel belongs. I understand that the vessel is paying salvage-

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February 13, 1914