NOT FADE AWAY; THE RE-EMERGENCE OF COMMON LAW DEFENCES IN CANADIAN MARITIME LAW
AbstractIn a trilogy of cases, beginning in 1986 with ITO-International Terminal Operators Ltd. v Miida Electronics Inc., the Supreme Court of Canada articulated the principal characteristics of Canadian maritime law. One such characteristic is that Canadian maritime law is composed in part of non-statutory rules and principles adopted from the common law and applied in admiralty cases. The authors argue that included within this body of federal common law are the common law defences of contributory negligence, last clear chance, and no contribution between joint tort feasors. Although abrogated by provincial legislatures, these common law defences remain undisplaced by federal statutes and have been, and must continue to be, applied by Canadian courts in the exercise of their jurisdiction over admiralty claims. The authors conclude that federal legislation inspired by existing provincial statutes which deal with contributory negligence and apportionment is necessary to remove such archaic and inequitable concepts from the law.
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