National Post (National Edition)
Shipping law sails into new prominence
This year Chambers and Partners unfurled a new category in the Canadian section of the Chambers Global 2013 guide: shipping. The inaugural inclusion of this legal area and its lengthy absence from the global guide until now reflect the dual reality of shipping law in this country.
“We hit above our weight class in terms of contributions to the legal community, but Canada is not a major ship-owning nation or ship insurance [country],” says Marc Isaacs, partner with Isaacs & Co. in Toronto, which is ranked as a Band 3 firm for shipping in Canada.
In centres like New York and London, maritime lawyers focus on narrow, sub-specialty areas such as ship-building contracts. In Canada, the smaller market requires a broader practice, says Christopher Giaschi, a partner with Giaschi & Margolis in Vancouver and a Band 1 practitioner in the guide. “There is not the opportunity to specialize like that although we do have individuals who concentrate more on the solicitor side and on litigation.”
Brisset Bishop is one of the specialty firms. The Montreal-based law office generally practices on the “carrier” side as opposed to cargo interests. “We act for ship owners, ship operators, ship agents, freight forwarders, port terminals and their insurers,” says David Colford, whose firm is listed as Band 2 in the shipping law rankings.
“When there is a casualty like a collision; a pollution; hitting fixed objects, like damaging a wharf; an incident concerning major cargo damage; or personal injury, we are instructed almost immediately and attend the ‘accident scene,’ ” he adds.
If a legal issue touches water, it likely touches the desk of a shipping lawyer somewhere. “Most people assume shipping law relates only to the ship,” says David Henley, a lawyer with Stewart McKelvey in Halifax. Mr. Henley is ranked as a Band 2 pracitioner. “It relates to the cargo, the passengers, the fishery, the environment. There are even family law issues — who gets
We hit above our
weight class
the boat, for example. In Nova Scotia, especially in a fishing port, that is a very relevant question.”
Questions related to shipping law have found their way into the headlines recently, a factor that may have contributed to Chambers’ expanded rankings and the growing spotlight on maritime law. Piracy is a hot, and very highprofile, topic. Responsibility to passengers — say a cruise ship finds itself limping along international waters, for example — has also attracted widespread attention recently.
History and the laws of the land dictate how such situations should be handled. In the case of a shipping causality and arresting the officers in charge, there is a clear tradition, both legal and otherwise. “Seafarers aren’t supposed to be criminalized for simple negligence,” says Mr. Giaschi, adding that, “It seems to be a bit of a trend to arrest the skipper and hold him for a length of time.”
There are less high-profile but equally important issues shipping lawyers and their clients are grappling with. One of those has to do with international places of refuge and the obligations of countries to lend a hand, or not. “What do you do with a vessel that is in distress? Do you have the right to refuse especially if it’s spewing oil or might spew oil?” asks Mr. Henley. Those are the questions clients turn to shipping lawyers to help them answer.
The path to a practice in shipping law is not well mapped for many lawyers. Mr. Henley, for instance, got his law degree from the University of New Brunswick “and took none of the classes [he’s] practising now.” His LLM from Dalhousie, however, helped him navigate to a career in maritime law. Mr. Isaacs initially practised as a trial lawyer before receiving his Master of Laws in Admiralty from Tulane University School of Law in New Orleans. It was, he says, his growing interest in this “historic, often idiosyncratic area of law” that ultimately compelled him to anchor his practice in shipping law.
Mr. Giaschi, however, started his career in shipping law while still an articling student. He found himself involved in a controversial maritime case: the sinking of the Ocean Ranger oil rig off the coast of Newfoundland because he didn’t have plans for the holidays. “I happened to be the only articling student who was around over Christmas,” he says.
Regardless of why or how lawyers find themselves practising in this area, there is agreement that a certain set of skills is necessary to succeed. First, a fascination with history is helpful. “A lot of the concepts we deal with on a daily basis have their origins hundreds of years ago,” says Mr. Isaacs.
There are also a few areas it is important to understand well, he adds. Those would be technology and engineering. Those would also be commerce and insurance. In fact, the latter originated in shipping law.
The legal link between the law of the land and maritime law is extensive and substantive. “A good part of general commercial law,” says Mr. Giaschi, “evolved from maritime law.”