Bow Valley Husky Ltd. v. St. John Shipbuilding Ltd.

In Constitutional Issues in Maritime Law on (Updated )

This is an extremely important case that all maritime law practitioners should read carefully. The case involved a breach of contract and negligence claim relating to the building of an off shore oil platform owned by the Plaintiff. The significant maritime law issue was whether the Plaintiff’s claim was barred by reason of contributory negligence. The Defendant argued that because the matter was governed by Canadian Maritime Law the Newfoundland Contributory Negligence Act, which would have apportioned liability, did not apply and the Plaintiff’s claim was barred. The Supreme Court of Canada agreed that the Newfoundland Contributory Negligence Act did not apply to maritime torts. The court noted that the "(a)pplication of provincial laws to maritime torts would undercut the uniformity of maritime law". Nevertheless, the court said that this was "an appropriate case for … an incremental change to the common law in compliance with the requirements of justice and fairness". The court held that the contributory negligence bar did not apply to maritime torts. This case is of significance not only because of the ruling on contributory negligence but also because the court dealt specifically with the so called "gap rule" (which holds that, for matters within the constitutional jurisdiction of both the provinces and the federal government, the provinces may legislate where the federal government has not done so). The court held that the absence of federal legislation did not mean there was a "gap" which the provinces could fill because the common law applied to fill any such gap. ( Although not specifically enunciated in the judgement, presumably this is because the Federal Court Act enacts the common law as Canadian Maritime Law.) The significance of this may be that no provincial statute can ever apply to a matter governed by Canadian Maritime Law.