Rules Interpretation

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INTERPRETATION AND CONSTRUCTION OF

THE HAGUE, HAGUE/VISBY AND HAMBURG RULES

(published in (2004) 10 JIML 30-70)

William Tetley, Q.C.

I. Introduction

II. Styles of Drafting Civil Law/Common Law

III. Rules of Interpretation and Construction

1) Civil lawa)

Mazeauds rules of interpretationb) Mignaults rules of interpretation

2) Common law3) Civil law vs. common law interpretation of international

conventions

4) Vienna Convention on the Law of Treaties 19695) Mixed jurisdictions

IV. Hague and Hague/Visby Rules Codifying StatutesV. Stare Decisis

1) Common law

2) Civil lawa) Continental civil law jurisdictionsb) Mixed jurisdictions

3) Stare decisis the supreme courtsa) The Court of Justice of the European Communitiesb) The European Court of Human Rightsc) The House of Lords

d) The Supreme Court of the United States

e) The Supreme Court of Canada

4) Intermediate appeal courts

a) The United Kingdom

b) The United States Circuit Courts of Appeals

c) Canada

Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law,Tulane University School of Law, and counsel to Langlois Gaudreau OConnor of Montreal. The author isindebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text.The author acknowledges a generous grant from the Wainwright Trust for researchers.


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VI. Privy Council Jurisdiction and Authority

1) Jurisdiction

2) Abolition of the right to appeal by Commonwealth members

a) On becoming republicsb) By specific legislation3) Authority of the Privy Council

a) Never binding on itself

b) Before abolitionc) After abolition

VII. Particular Principles of Interpretation of the Rules

1) Actual wording - rather than previous law

2) International rather than domestic construction3) The principle of standardization4) Reference to the history of the Rules5) Carrier/shipper compromise and balance6) Strict construction of the exceptions in the Rules7) Taking cognisance of new methods8) The French text and other texts9) References to foreign judgments10) Precedence of a later statute11) Precedence of the international convention

VIII. The Hague/Visby Rules

IX. The Hamburg Rules

X. Conclusion


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INTERPRETATION AND CONSTRUCTION OF THE HAGUE,

HAGUE/VISBY AND HAMBURG RULES

William Tetley, Q.C.

Abstract

Prof. Tetley here reviews civil law and common law rules of interpreting internationalconventions - rules partly harmonised by the Vienna Convention on the Law of Treaties1969. He then compares the application ofstare decisis in the U.K., the U.S., andCanada, at the supreme court, appellate and first instance levels, noting also thereplacement of the Privy Council by national supreme courts as final courts of appeal indifferent Commonwealth countries. Various principles which should be applied in

interpreting the Hague, Hague/Visby and Hamburg Rules are then set forth, including atruly international approach, the principle of standardization, and reference to the legalhistory, travaux prparatoires and official-language versions of those conventions.

I. Introduction

Before considering how the Hague Rules and the Hague/Visby Rules should beinterpreted, it is important to look at the differing principles of interpretation andconstruction of both the civil law and the common law with a view to determiningwhether the two sets of Rules were drafted in civil law or common law style or in someintermediary form.

II. Styles of Drafting - Civil Law/Common Law

Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law,Tulane University School of Law, and counsel to Langlois Gaudreau OConnor of Montreal. The author isindebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text.The author acknowledges a generous grant from the Wainwright Trust for researchers.


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The basic tenet of the civil law style of drafting (le style franais)1 is concision. Theaim of the style is to be concise,2 to present a principle of law in a single, general,harmonious phrase that by its broad terms encompasses all particular details.3 Acelebrated example is arts. 1382 and 1383 of the French Civil Code, which in twosentences contains the whole law of personal delict (equivalent to personal tort in the

common law).4

Another example is the law of vicarious liability to be found at art. 1384c.c. (France).5 In Qubec, a prime example of civilian concision is art. 6 of the Civil Codeof 1994: Every person is bound to exercise his civil rights in good faith. Codificationpermits the rgles de droit (fundamental legal principles, rather than specific legalrules for the particular case) to be enacted in broad terms, which may then be interpretedand extended to new situations by enlightened judicial interpretation.6

1 See Louis-Philippe Pigeon, Rdaction et interprtation des lois, 2 Ed., Gouvernement du Qubec,Quebec, 1986 at p. 19. See also Philippe Malaurie & Laurent Ayns, Cours de droit civil. Introduction ltude du droit, ditions Cujas, Paris, 1991 at para. 516: La loi devrait tre facilement intelligible, cest--dire quelle devrait tre simple, claire, concise et sans effets littraires. Note, however, that not all CivilCodes follow the French model. The German Civil Code of 1896 (the Brgerliches Gesetzbuch), in

particular, is far more detailed than the French Code and those modelled on it. See M.A. Glendon, M.W.Gordon & C. Osakwe, Comparative Legal Traditions, West Publishing Co., St. Paul, Minn., 1994 at p. 54:In form and style, the French Civil Code stands in marked contrast to the German Civil Code whichappeared nearly a century later. The Code civil des franais was meant to be read and understood by thecitizen. With its clean, fertile and intentionally concise provisions, its style resembles that of the UnitedStates Constitution, more than it does the German Civil Code of 1896. The draftsmen opted for theflexibility of general rules, rather than for detailed provisions.2 Montesquieu, in his celebrated De LEsprit des Lois, 1748(Book XXIX, chap. xvi), gives as his firstand foremost admonishment on composing laws that: The style ought to be concise. (The Spirit ofLaws, A compendium of the First English Edition with an Introduction by David Wallace Carrithers,Berkeley, 1977, at p. 376). Portalis, one of the drafters of the Code Napolon, declared: L'office de la loiest de fixer, par de grandes vues, les maximes gnrales du droit; d'tablir des principes fconds enconsquences, et non de descendre dans le dtail des questions qui peuvent natre sur chaque matire.

Portalis admirable speech is published in full in Sir O. Kahn-Freund, C. Lvy and B. Rudden (eds.), ASource-book on French Law, 3 Ed., Clarendon Press, Oxford, 1991, 233 at p. 235 [hereafter cited asKahn-Freund, Lvy & Rudden,A Source-Book on French Law, 3 Ed., 1991].3 Professor F.H. Lawson, commenting on the style of the Code Napolon, said that it was composed inthe sort of plain style we admire so much in our Swift and Defoe, and which Hazlitt said was so difficultto write. (F.H. Lawson,An English Lawyer's Reflections on the Hundred and Fiftieth Anniversary of theCode Civil. The Comparison: Selected Essays, vol. II, Amsterdam, 1977, at p. 48.) It is interesting to notethat Napoleon did not approve of the drafter's style of the Code that bears his name. He complained: thatthe vice of our modern legislations is that they do not speak to the imagination. Man can be governedonly by imagination; without it, man is a brute. It is a mistake to govern men like things; it is by speakingto man's soul that he can be thrilled ... (Thibaudeau, Mmoires sur le Consulat de 1799 1804 par unAncien Conseiller dEtat, 419-424, translated by and cited in Alain Levasseur, On the Structure of aCivil Code (1969-1970), 44Tul. L. Rev.693 at p. 698.)4

Arts. 1382 and 1383c.c. (France), identical to arts. 1382 and 1383c.c. (Belgium). See also arts. 2315,2316c.c. (Louisiana); art. 2043 c.c. (Italy); art. 1902 c.c. (Spain).5 Identical to art.1384 c.c. (Belgium) and similar to art. 2317 c.c. (Louisiana); arts. 2048 and 2049 c.c.(Italy); and art. 1903 c.c. (Spain).6 See Brice Dickson, inIntroduction to French Law, Pitman Publishing, London, 1994 at pp. 10-11: Thegenerally worded provisions of the Code civiland the consequent freedom given to judges to interpret andapply those provisions have made possible the development of new rules and have without doubt beenresponsible for the Codes ability to come to terms with the social, technical and economic developmentssince Napoleons day. See also J. Ghestin & G. Goubeaux, Trait de Droit Civil. Introduction Gnrale, 4Ed., L.G.D.J., Paris, 1994 at para. 147.


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The common law style of drafting (le style anglais),7 on the other hand,

emphasizes precision8 rather than concision.9 The aim of the style is to include everypossible detail in order to fully inform the citizen of the law and of his rights.10 Thepractice in common law drafting is to list all the particulars, preceded by a catch-all

phrase, which is followed by a demurrer such as notwithstanding the generality of theforegoing. Art. 4(2)(a) to (q) of the Hague and Hague/Visby Rules is an example ofcommon law drafting: a long list from 4(2)(a) to (p), followed by the catch-all phrase (q),this time at the end. Conversely, art. 4(1) of the Hague Rules and art. 5(l) of the HamburgRules are approximations of the civil law style of drafting.

Another difference between the common law and the civil law lies in theirrespective approaches to remedies and recourses. The common law deals with remediesfirst: there must be a remedy11 to have a right, while the civil law is concerned first withrights and all rights have virtually the same recourse. For example, in respect tocontracts, the civil law recourses for breach of contract are the rescision of the contract

or damages or both and, occasionally specific performance.12

III. Rules of Interpretation and Construction

7 Pigeon,supra, at p. 5.8 See generally G.C. Thornton,Legislative Drafting, 2Ed., London, 1979,at p. 53 et seq.; Daniel Jacoby,La composition des lois (1980), 40 Revue du Barreau 3 at p. 22 et seq. See also British and FrenchStatutory Drafting: The Proceedings of the Franco-British Conference of 7 and 8 April 1986, Sir WilliamDale, ed., Institute for Advanced legal Studies, London, 1987, particularly the paper by Edward Caldwell,U.K. Parliamentary Counsel, where he stated (at p. 56): The typical Act of Parliament is long and detailedand attempts to state Parliaments intention with precision. It may leave some of the detail to be filled in by

regulations, orders or other subordinate legislation but is unlikely to leave much of the new law to bedeveloped by the courts. Acts which confine themselves to statements of general principle and leave thedetailed development of the law to the courts are rare.9 SeeBritish and French Statutory Drafting: The Proceedings of the Franco-British Conference of 7 and 8April 1986,supra, where Lord Wilberforce, in his Opening Address (at p. 1), compared the English systemof elaborate, detailed drafting, covering every individual case with the French [method] of elegantgeneralities from which applications are deduced. See also the Commentaires du ministre de la Justice onthe Civil Code of Qubec 1994, vol. 1, Les Publications du Qubec, Quebec, 1993 at p. vii: Le Code civilconstitute un ensemble lgislatif structur et hirarchis. Il ne dit pas tout; son rle est dtablir des rglesqui pourront sadapter la diversit des situations humaines et sociales et dintgrer les dveloppementsscientifiques ou sociaux. (translation: The Civil Code constitutes a structured and systematic legislativewhole. It does not provide for everything; its role is to establish rules which may be adapted to the diversityof human and social situations and integrate scientific and social developments.)10

Although, as pointed out by G.C. Thornton: [i]t is unrealistic to believe that the laws should be draftedin language and in a style which is familiar and instantly intelligible to the man in the street, [n]everthelessthe draftman must in each case endeavour to draft in such a way that the law is successfully communicatedto the persons who make up the three groups [i.e. 1) The members of the lawmaking authority; 2) Themembers of society who are concerned with or affected by the law; 3) members of the judiciary].(Thornton,supra, at p. 45.)11 Remedies is a subject taught as a full course in common law schools, while neither remedies norrecourses is a civil law subject.12 The different damages for delay (2 times freight) under arts. 5(2) and 6(1)(b) of the Hamburg Rules

provide an example of a common law distinction (i.e. different damages for different types of claims).


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1) Civil law

Many authorities have written on the interpretation of civil codes. All haveemphasized the concision of a civil code but few have written concisely on the matter. 13

Mazeaud and Mignault are exceptions and have presented concise rules of interpretation.

a) Mazeaud's rules of interpretation

Mazeaud's rules of interpretation may be summarized as follows:14

i) When the text is clear, it should not be interpreted but rather applied purely andsimply, provided however that such application does not lead to an absurdity.

ii) When the text is obscure, the court must discover the intention of the legislatorby examining the legislation as a whole as well as the provisions more immediately

surrounding the obscure text.

iii) If such examination does not suffice, the court may refer to the preparatorystudies to discover the thinking of the legislator. These studies however are notbinding on the court.

iv) When the text does not directly provide a solution, the court must rely on thetext as a starting point from which to discover the law. In other words, the textremains a framework into which new elements may be inserted.

v) At times the court may base its decision on general principles of law (e.g.

unjust enrichment) gleaned from the evolving jurisprudence. Such reliance mustbe made with circumspection and care. The court must not forsake the text inorder to make equity its sole guide.

vi) The court may also turn to the rules of logic in shaping its reasoning. Forexample, exceptions are to be strictly construed and specific language supersedesgeneral language.

b) Mignault's rules of interpretation

P.B. Mignault's rules of interpretation may be summarized as follows:15

13 See J. Ghestin et G. Goubeaux, Trait de Droit Civil, Introduction Gnrale, 4 Ed., L.G.D.J., Paris,1994, paras. 144-171, and Ch. Perelman, Logique juridique, nouvelle rhtorique, Paris, 1979, paras. 31 to36. See also Jean Carbonnier, Authorities in Civil Law: France in Joseph Dainow, The Role of JudicialDecisions and Doctrine in Civil Law and in Mixed Jurisdictions, Louisiana State University Press, BatonRouge, 1974 at p. 112 et seq.14 Mazeaud,Leons de Droit Civil, 7 Ed., Paris, 1983, t. 1, vol. 1, at para. 110.15 P.B. Mignault, Le Code Civil de La Province de Qubec et son Interprtation (1935-36), 1 U. ofToronto L.J. 104at p. 124. Mignault summarized the rules of interpretation of F.P. Walton, The Scope


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i) First, one refers to the text of the code itself.

ii) Only if there is ambiguity in the text of the code may one refer to the officialcodifiers report (which is usually a statement by the drafters of the Code as to the

sources of each article.)

iii) If there still remains any doubt, one then refers to la doctrine, that is, thecommentaries of recognized experts on the law.16

iv) Only if all else fails may one consider the reported decisions on the civil law.

v) Finally, one may refer to the common law (le droit anglais), if the text inquestion has its origins in the common law.17 (Mignault's rules are especially usefulin amixed jurisdiction.)

In general, it may be said that the interpretation of legislation in civil lawjurisdictions is liberal, rather than restrictive, focusing on the purpose of the provisionsas determined by the judge, and permitting the use of various external aids (e.g. thepreparatory works, surrounding circumstances, and analogies).18

and Interpretation of the Civil Code of Lower Canada, Wilson & Lafleur Lte., Montreal, 1907. Seereprint of Walton with an excellent introduction by Maurice Tancelin, Butterworths, Toronto, 1980. Seealso Pierre-Andr Ct, Les Rgles dinterprtation des lois: des guides et des arguments (1978) 13Revue juridique Thmis 275.16 That la doctrine ranks ahead of reported decisions of even the highest courts can be seen in the order of

priority given in continental legal journals. In Droit Maritime Franais (DMF), the commentaries or

articles on the law by experts are printed first each month, then the judgments of the Cour de Cassation,followed by the judgments of the Appeal Courts and finally the decisions in first instance. Writers onforeign law are put at the end.17 See however, Lord Sumner in Quebec Railway, Light, Heat and Power Company v. Vandry [1920]A.C. 662 at pp. 671-672 (P.C.): Thus, however stimulating and suggestive the reasoning of FrenchCourts or French jurists upon kindred subjects and not dissimilar texts undoubtedly is, recent Frenchdecisions, though entitled to the highest respect ... are not of binding authority in Quebec [citationomitted] still less can they prevail to alter or control what is and always must be remembered to be thelanguage of a Legislature established within the British Empire. The foregoing remarks are quiteinaccurate. The Qubec Civil Code (the Civil Code of Lower Canada) was drafted in its entirety by threeQubec Civil law jurists in the civil law style, relying for the most part on the Custom of Paris and theCode Napolon. The Qubec Civil Code was proclaimed law on May 26, 1866 by a proclamation of thegovernment of the United Province of Canada (Ontario and Quebec) in virtue of a law of the Legislative

Council and the Legislative Assembly of the United Province of Canada. (L.C. 1865, c. 41, September 18,1865). In particular, Lord Sumner ignored the enlightened British practice of leaving to its colonies theiroriginal civil law (in this case French civil law) while at the same time imposing the British administrativesystem and British criminal law.18 See A. Kiantou-Pampouki, The Interpretation of International Maritime Conventions in Civil Law andin Common Law, being the General Report presented to the XIII Conference of the InternationalAcademy of Comparative Law, Montreal, 1990 at p. 6: He [the civilian judge] is free to choose themethods or the instruments which he expects to assist him in providing a convincing solution, evenoutside the legal text, such as the preparatory works, the circumstances under which the law was enacted,as well as subsequent events regarding the law. He may correct the legal text, by restricting or enlarging its


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2) Common law

Perhaps the classic, or most famous statement, of common law statutoryinterpretation was by Sir Courtney Ilbert:19

Regard should be had to the general rules for the interpretation of statutes, aslaid down in the ordinary textbooks. Among the most important of these are

1. The rule that an Act must be read as a whole. Therefore the language of onesection may affect the construction of another.

2. The rule that an Act may be interpreted by reference to other Acts dealingwith the same or a similar subject matter. Hence the language of those Actsmust be studied. The meaning attached to a particular expression in one Act,either by definition or by judicial decision, may be attached to it in another.

And variation of language may be construed as indicating change ofintention.

3. The general rule that special provisions will control general provisions.

4. The similar rule that where particular words are followed by general words(horse, cow, or other animal), the generality of the latter will be limited byreference to the former (Ejusdem generis rule).

5. The general rule, subject to important exceptions, that a guilty mind is anessential element in a breach of criminal or penal law. It should, therefore,

be considered whether the words wilfully or knowingly should beinserted, and whether, if not inserted, they would be implied, unlessexpressly negatived.

6. The presumption that the legislature does not intend any alteration in therules or principles of the common law beyond what it expressly declares.

7. The presumption against an intention to oust or limit the jurisdiction of thesuperior courts.

8. The presumption that an Act of Parliament will not operate beyond the

United Kingdom.

field of operation. He may also proceed to an analogy of law or form a new rule so that one way or anotherhe may meet with new situations which are not covered by the text.19 Sir Courtney Ilbert, Legislative Methods and Forms, H. Frowde, London, 1901, at pp. 250-251. Seealso Maxwell on the Interpretation of Statutes, 12 Ed., Sweet & Maxwell, London, 1969; Craies onStatute Law, 7 Ed., Sweet & Maxwell, London, 1971.


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9. The presumption against any intention to contravene a rule of internationallaw.

10. The rule that the Crown is not bound by an enactment unless speciallynamed.

11. The presumption against the retrospective operation of a statute, subject toan exception as to enactments, which affect only the practice and procedureof the courts.

12. The rule that a power conferred on a public authority may be construed as aduty imposed on that authority (may = shall).

In general, common law statutory construction, reflecting the historic role ofstatutes in England as correctives to gaps or defects of the common law, is restrictive. Itfocuses on the usual meaning of the words of the enactment, with a view to ascertaining

and giving effect to the intention of the lawgiver as expressed in the text, and admittingfew, if any, external aids to interpretation.20

3) Civil law vs common law interpretation of international conventions

It is not surprising that the difference between the more liberal civilian and themore restrictive common law methods of statutory interpretation is also reflected intheir respective methods of construing international conventions.21 One of the cleareststatements on this point was made by the English Court of Appeal in Canada Trust Co.and Others v. Stolzenberg and Others (No. 2),22 a case involving the interpretation of theLugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and

Commercial Matters 1988.23

Citing the authors Briggs and Rees24

on that Convention andthe similar Brussels Convention 1968,25 Waller, L.J. observed:26

20 See A. Kiantou-Pampouki, The Interpretation of International Maritime Conventions in Civil Law andin Common Law,supra, at p. 7: interpretation in Common Law is effected in view of the intent of theLegislator rather than the purpose of the law and is not as liberal as it is in Civil Law. The words used instatutes are taken in their ordinary grammatical meaning. In case of ambiguities the legislators intent islooked for in the text of the statute itself or in its context. There is no question of applying by analogythe solution provided by a statute for similar cases, because there is no such concept in english law as the

punishable denial of justice. In any case, judges may turn to the Common Law to find solutions for theproblems they are facing.21 For an interesting comparison of the interpretation of international maritime conventions in civilian and

common law countries, see the proceedings of the XIII Conference of the International Academy ofComparative Law, Montreal, Canada, 1990, where reports may be found on the interpretation of suchconventions by courts in Australia, Belgium, Canada, Finland, France, Germany, Greece, Japan, the

Netherlands, Poland, Sweden, the United Kingdom, the United States and Venezuela.22 [1998] 1 All E.R. 318, [1998] 1 W.L.R. 547 (C.A.), affd [2002] 1 A.C. 1 (H.L.).23 Adopted at Lugano, September 16, 1988 (O.J.E.C. 1988 L 391/9), the Lugano Convention 1988establishes certain rules governing the jurisdiction of courts and the enforcement of judgments in civil andcommercial matters as between States of the European Union and those belonging to the European FreeTrade Association. The Lugano Convention was given the force of law in the United Kingdom by the CivilJurisdiction and Judgments Act 1991, U.K. 1991, c. 12.


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The Conventions are European texts, designed and drafted by civillawyers trained in the continental legal tradition; and they are interpretedby judges who are, by a large majority, civilian lawyers. The texts have tobe understood, and interpreted, according to the European style, at least if

they are to be understood in a way which will conform, to the views of the[European] Court of Justice. The English custom of interpreting, more orless literally, the precise relevant words, following the prior decisions ofearlier courts, is not the European way. Instead, the Conventions areinterpreted teleologically; that is to say, with a view predominantlygiven to the overall purposes of the Convention as a whole, as distinctfrom simply seeking to ascertain the natural meaning of a single provisionin isolation from the rest of the text. For this reason, attention to thegeneral principles underpinning the Convention, as the Court of Justicehas declared them and as set out here, is the proper first step in theinterpretation of any individual provision: they must be taken as read in all

cases. A sound teleological argument may well defeat a good literal one.

This pronouncement hearkens back to a similar comparison of English andContinental styles of interpretation, as well as drafting, of both statutes and conventions,made by Lord Denning, M.R. in Bulmer v. Bollinger,27 commenting on the European

24 A. Briggs & P. Rees, Civil Jurisdiction and Judgments, 2 Ed., Lloyds of London Press, London, 1997 atp. 16.25 The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,adopted at Brussels, September 27, 1968, as subsequently amended by various Accession Conventionsadmitting additional States to membership in the European Union (see O.J.E.C. 1982 L 285/1). The

Brussels Convention 1968 establishes uniform rules on jurisdiction and the enforcement of judgments incivil and commercial matters for courts in countries of the European Union. It was given force of law inthe U.K. by the Civil Jurisdiction and Judgments Act 1982, U.K. 1982, c. 27.26 [1998] 1 All E.R. 318 at p. 332, [1998] 1 W.L.R. 547 at p. 562.27 [1974] 2 All E.R. 1226 at p. 1237(C.A):

What a task is thus set before us! The treaty is quite unlike any of the enactments towhich we have become accustomed. The draftsmen of our statutes have striven toexpress themselves with the utmost exactness. They have tried to foresee all possiblecircumstances that may arise and to provide for them. They have sacrificed style andsimplicity. They have foregone brevity. They have become long and involved. Inconsequence, the judges have followed suit. They interpret a statute as applying only tothe circumstances covered by the very words. They give them a literal interpretation. Ifthe words of the statute do not cover a new situation -which was not foreseen - the judges

hold that they have no power to fill the gap. To do so would be a naked usurpation ofthe legislative function: see Magor and St. Mellons Rural District Council v. NewportCorporation, [[1951] 2 All E.R. 839 at p. 841, [1952] A.C. 189 at p. 191,per LordSimmonds]. How different is this treaty. It lays down general principles. It expresses itsaims and purposes. All in sentences of moderate length and commendable style. But itlacks precision. It uses words and phrases without defining what they mean. An Englishlawyer would look for an interpretation clause, but he would look in vain. There is none.All the way through the treaty there are gaps and lacunae. These have to be filled in bythe judges, or by regulations or directives. It is the European way. That appears from thedecision of the Hamburg court inRe Tax on Imported Lemons [[1968] C.M.L.R. 1].


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Communities Act 1972,28 whereby the U.K. gave effect to the Treaty of Rome 1957, thusbecoming a member of the European Economic Community.29

4) Vienna Convention on the Law of Treaties 1969

One of the most important international conventions ever adopted is the ViennaConvention on the Law of Treaties, 1969.30 It lays down basic rules governing theadoption, ratification, interpretation, implementation and denunciation of treaties and hasitself been ratified or acceded to by most of the worlds nations,31 including those of bothcivil law and common law traditions. Its rules may therefore be considered as trulytransnational. These rules codify customary international law in respect of treatyinterpretation and therefore apply to the construction of the Hague Rules 1924 and theHague/Visby Rules and the Hamburg Rules, although the Vienna Convention came intoforce only in 1980.32

The Vienna Convention on the Law of Treaties deals with Interpretation of

Treaties in its Part III, section 3, which consists of only three articles: art. 31 on theGeneral rule of interpretation; art. 32 on Supplementary means of interpretation; andart. 33 on Interpretation of treaties authenticated in two or more languages.

Art. 31, the General rule of interpretation, provides:

28 U.K. 1972, c. 68.29

The Treaty Establishing the European Economic Community, adopted at Rome, March 25, 1957, andrenamed the Treaty Establishing the European Community by the Treaty on European Union (the Treatyof Maastricht), adopted at Maastricht, February 7, 1992.30 U.N. Doc. A/Conf. 39/27, adopted at Vienna, May 22, 1969 by a vote of 79-1 (France against), with 19abstentions, and opened for signature on May 23, 1969. See the official text at 1155 U.N.T.S. 331, 8 I.L.M.679. The Convention entered into force on January 27, 1980.31 The Vienna Convention is in force in some 97 States. The United Kingdom signed it on April 20, 1970and acceded to it on June 25, 1971. But it was published officially only in 1980. See U.K.T.S. 58 (1980),Cmnd. 7964. The United States signed the Convention on April 24, 1970 but has never ratified it, althoughit has been cited by American courts as a compendium of international norms applicable to variousquestions of treaty law. See Joseph D. Becker, The American Law of Nations.Public International Law inAmerican Courts, Juris Publishing Inc., New York, 2001 at p. 34, citing Weinbergerv.Rossi 456 U.S. 25at p. 29, note 5 (1982) and Sale v. Haitian Centers Council509 U.S. 155 at p. 191 (1993) (Blackmun, J.

dissenting). See also the Restatment (Third) of Foreign Relations Law, adopted by the American LawInstitute at Washington, D.C., May 14, 1986, West Publishing Co., St. Paul, Minn., 1987, sect. 325,comment (a): But it [the Vienna Convention] represents generally accepted principles and the UnitedStates has also appeared willing to accept them despite differences of nuance and emphasis. Canadaratified the Convention on October 14, 1970. On the Vienna Convention 1969 generally, see W. Tetley,Canadian Interpretation and Construction of Maritime Conventions (1991) 22 R.G.D. 109-128; and on-line (updated August 8, 2001) at http://tetley.law.mcgill.ca/maritime/interpretation.htm.32 See Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corp. Berhad (TheBunga Seroja) (1998) 158 A.L.R. 1 at p. 19, note 97, [1999] 1 Lloyds Rep. 512 at pp. 523 and 553, note97, 1999 AMC 429 at p. 450, note 97 (High C. of Aust.).


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1. A treaty shall be interpreted in good faith in accordance with theordinary meaning to be given to the terms of the treaty in their context andin the light of its object and purpose.33

2. The context for the purpose of the interpretation of a treaty shall

comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made betweenall the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties inconnection with the conclusion of the treaty and accepted by the otherparties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding theinterpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty whichestablishes the agreement of the parties regarding its interpretation;34

(c) any relevant rules of international law applicable in therelations between the parties.

4. A special meaning shall be given to a term if it is established that theparties so intended.

Art. 32 (Supplementary means of interpretation) provides:

Recourse may be had to supplementary means of interpretation,including the preparatory work of the treaty and the circumstances of itsconclusion, in order to confirm the meaning resulting from the applicationof article 31, or to determine the meaning when the interpretationaccording to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

33 See also the Restatement (Third) of Foreign Relations Law, 1987 at sect. 325(1): (1) An internationalagreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to itsterms in their context and in the light of its object and purpose.34 See also the Restatement (Third) of the Foreign Relations Law of the United States, 1987 at sect. 325(2):Any subsequent agreement between the parties regarding the interpretation of the [international]agreement, and subsequent practice between the parties in the application of the agreement, are to be takeninto account in its interpretation.


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Art. 33 on Interpretation of treaties authenticated in two or more languages

provides:35

1. When a treaty has been authenticated in two or more languages, the

text is equally authoritative in each language, unless the treaty provides orthe parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in whichthe text was authenticated shall be considered an authentic text only if thetreaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in eachauthentic text.

4. Except where a particular text prevails in accordance with paragraph 1,

when a comparison of the authentic texts discloses a difference ofmeaning which the application of articles 31and 32 does not remove, themeaning which best reconciles the texts, having regard to the object andpurpose of the treaty, shall be adopted.

4) Mixed Jurisdictions

Mixed jurisdictions are legal systems in which the Romano-Germanic traditionhas become suffused to some degree by Anglo-American law.36 Examples are Scotland,Louisiana, Qubec and the Republic of South Africa. In these jurisdictions, there areoften codes which follow the civil law tradition of interpretation, while there are also

statutes which are construed in the common law manner.37

IV. Hague and Hague/Visby Rules - Codifying Statutes

35 See generally Peter Germer, Interpretation of Plurilingual Treaties: A Study of Article 33 of the ViennaConvention on the Law of Treaties (1970) 11 Harv. Intl L.J. 400.36 F.P. Walton, The Scope and Interpretation of the Civil Code, Toronto, 1980, with an introduction byMaurice Tancelin, at p. 1. The term mixed jurisdictions was apparently first coined by Professor T.B.Smith of Edinburgh. See T.B. Smith, The Preservation of the Civilian Tradition in Mixed Jurisdictions,

to be found in A.N. Yiannopoulos, ed., Civil Law and the Modern World, Louisiana State UniversityPress, Baton Rouge, Louisiana, 1965 at pp. 4 and 25. On mixed jurisdictions generally, see V.V. Palmer,ed.,Mixed Jurisdictions Worldwide: The Third Legal Family, Cambridge University Press, 2001; and W.Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified) (1999-3) Unif. L.Rev. (N.S.) 591-619 (Part I) and (1999-4) Unif. L. Rev.877-907 (Part II); reprinted in (2000) 60 La. L.Rev. 677-738, and at http://tetley.law.mcgill.ca/comparative/mixedjur.pdf.37 On the duality of methods of interpretation in Qubec and the autonomy of the civil law, see P.-A. Ct,The Interpretation of Legislation in Canada, 3 Ed., Carswell, Toronto, 2000 at pp. 26-33; Walton, op. cit.,especially the introduction of M. Tancelin; P.B. Mignault, Le Code Civil de la Province de Qubec: etson Interprtation (1935-36) 1 U. of Toronto L.J. 104.


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Neither the Hague38 nor the Hague/Visby Rules39 is a code in the civil lawdrafting style. Rather each is a hybrid civil law/common law (mostly common law) stylestatute. Nor do the Hague and Hague/Visby Rules codify all existing law. Instead theyare a compromise invoking some new law in order to satisfy the varying interests ofcarriers and shippers at the time of their adoption. As such they are what may be called

codifying statutes. The same is true of the Hamburg Rules40

and of the MultimodalConvention.41 These Rules codify much of the law of the past, but also add new law forthe future.

A very useful statement on such codifying statutes was made by Lord Herschellin the Bank of England v. Vagliano Brothers,42whenhe commented on the Bills ofExchange Act43 and its interpretation:44

My Lords, with sincere respect for the learned Judges who have takenthis view, I cannot bring myself to think that this is the proper way to dealwith such a statute as the Bills of ExchangeAct, which was intended to be

a code of the law relating to negotiable instruments. I think the propercourse is in the first instance to examine the language of the statute and toask what is its natural meaning, uninfluenced by any considerationsderived from the previous state of the law, and not to start with inquiringhow the law previously stood, and then, assuming that it was probablyintended to leave it unaltered, to see if the words of the enactment willbear an interpretation in conformity with this view.

... One further remark I have to make before I proceed to consider thelanguage of the statute. The Bills of Exchange Act was certainly notintended to be merely a code of the existing law. It is not open to question

that it was intended to alter, and did alter it in certain respects. And I donot think that it is to be presumed that any particular provision wasintended to be a statement of the existing law, rather than a substitutedenactment.

The importance, therefore, of identifying the Hague and Hague/Visby Rules ascodifying statutes lies in the manner in which they should be treated by the courts.When they are being interpreted, their actual terms must first be considered beforeresorting to assistance from the law as it existed before their adoption.

V. Stare Decisis

38 Signed at Brussels, August 25, 1924 and in force June 2, 1931.39 Protocol to the Hague Rules, signed at Brussels, February 23, 1968 and in force June 23, 1977.40 Adopted at Hamburg, March 30, 1978 and in force November 1, 1992.41 Adopted at Geneva, May 24, 1980, not in force.42 [1891] A.C. 107 (H.L.).43 U.K., 45 & 46 Vict., c. 61 (1882).44 [1891] A.C. 107 at pp. 144-45.


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1) Common law

Stare decisis is the principle by which an inferior court abides by or adheres todecisions of superior courts within the same jurisdiction on legal principles forming

part of the ratio decidendi of the case. The purpose ofstare decisis is to giveuniformity, continuity and predictability to the law.45

The decisions of one court, however, are not absolutely binding either on courtsof co-ordinate authority or on that court itself.46 It can be said, nevertheless, that there isa rule of etiquette or conventional decorum47 that courts of co-ordinate authority willdefer to the opinions of one another for the sake of certainty, stability, and propriety inthe law.48 The classic statement regarding stare decisis was made by Brett M.R. in TheVera Cruz (No. 2):49

It was the custom for each of the Courts in Westminster Hall to hold

itself bound by a previous decision of itself or of a Court of co-ordinatejurisdiction. But there is no statute or common law rule by which oneCourt is bound to abide by the decision of another of equal rank, it does sosimply from what may be called the comity among judges. In the sameway there is no common law or statutory rule to oblige a Court to bow toits own decisions, it does so again on the grounds of judicial comity.

Only where there is a demonstrably strong reason for doing so will the decision ofa trial judge not be followed. What constitutes a strong reason for not following a priordecision by a judge of co-ordinate authority was discussed by McRuer C.J.H.C., in Reg.v.Northern Electric Co. Ltd.:50

strong reason ... does not mean a strong argumentative reason appealingto the particular Judge, but something that may indicate that the priordecision was given without consideration of a statute or some authoritythat ought to have been followed. I do not think strong reason to the

45 For an overview ofstare decisis and the extent to which the rule is followed in the different Englishcourts, see chaps. 3 and 4 of Sir Rupert Cross, Precedent in English Law, 4 Ed., Clarendon Press, Oxford,1991; Terence Ingman, The English Legal Process, 9 Ed., Oxford University Press, Oxford, 2002 at chap.9.46 Sir Frederick Pollock,First Book of Jurisprudence, 6 Ed., MacMillan, London, 1929 at p. 321, cited by

Hogg J. inR. ex rel. McWilliam v. Morris (1942) 51 O.W.N. 447 at pp. 448-9 (Ont. High Ct.).47Marconi Wireless Telegraph v. Canadian Car & Foundry Co. (1919) 44 D.L.R. 378 at p. 379, (1919) 18Ex. C.R. 241 at p. 244.48 See J. David Murphy and Robert Rueter, Stare Decisis in Commonwealth Appellate Courts,Butterworths, Toronto, 1981, at p. 2; see also George F. Curtis, Stare Decisis at Common Law inCanada (1978) 12 U. B. C. Law Rev. 1at p. 8.49 (1884) 9 P.D. 96 at p. 98 (C.A.); see also statements by Brown J. inMast, Foos & Co. v. Stover Mfg. Co.177 U.S. 485 at p. 488 (1900) and by the Earl of Halsbury in London Tramways Co. Ltd. v.London CountyCouncil[1898] A.C. 375 (H.L.).50 [1955] 3 D.L.R. 449 at p. 466 (Ont. High Ct.).


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contrary is to be construed according to the flexibility of the mind of theparticular judge.

2) Civil law

a) Continental civil law jurisdictions

Stare decisis is presumably not observed in continental civil law jurisdictions.Nevertheless, in France, for example, even though the judge does not regard himself asabsolutely bound by the decision of any court in a single previous instance, henonetheless endeavours to ascertain the trend of recent decisions on a particular point. Ittherefore can be said that: The practice of the courts does not become a source of thelaw until it is definitely fixed by repetition of precedents which are in agreement on asingle point.51 It should be noted, however, that the decisions of trial, appeal andsupreme courts are published and referred to in la doctrine.52 The supreme court (Cour deCassation) was instituted in France because of the fear that local judges would not always

promote the uniformity sought for in legislation. The role of the supreme court is towatch over the preservation of the law and to recall the courts to its observance byquashing judgments rendered contrary to its prescriptions.53 One decision, however,never relies on or cites another.54

51 E. Lambert and M.J. Wasserman, The Case Method in Canada and the Possibilities of its Adaptation tothe Civil Law (1929-30) 39 Yale L.J.1at p. 15, quoted in Cross, supra, at p. 12. See also D. Pollard,Sourcebook on French Law, Cavendish Publishing Limited, London, 1997 at p. xxiv [hereafter cited asD. Pollard, Sourcebook on French law, 1997]: If the Cour de Cassation continues to repeat its formula[often the first sentence of the decision, summarizing the principle of law concerned], and this is thenrepeated and applied by the Cours dappel and the lower courts, a jurisprudence constante becomes in

effect something akin to a precedent as understood by common lawyers. See also Kahn-Freund, Lvy &Rudden,A Source-Book on French Law, 3 Ed., 1991 at pp. 242-244, citing J. Carbonnier,Droit civil, vol.1, 1988 at para. 144.52 This raises the interesting question of the de jure authority of precedents in French law as opposed totheirde factopersuasiveness. The following comment by P. Esmein illustrates the intrinsic ambiguity thatsurrounds the notion of judicial precedent in France: La doctrine anglaise de lautorit des prcdentsdispense les Anglais de se livrer la discussion, jamais close chez nous, de savoir si la jurisprudenceconstitue une source du droit. Ce dbat est sans issue, car il faut rpondre non et oui, suivant quon seplacedans le champ des ides pures ou quon considre la ralit des faits. Sur le plan des ides, lart. 5.C. civ., en interdisant aux juges de se prononcer par voie de disposition gnrale et rglementaire sur lescauses qui leur sont soumises, exclut quils soient obligs de statuer comme eux-mmes, ou d'autres juges,mme suprieurs, ont statu antrieurement ... Mais lorsque quelquun, pour la gestion de ses propresintrts, ou comme conseiller d'autrui, veut savoir comment un problme de droit sera rsolu, il recherche

dans les dcisions de justice comment il la t antrieurement. Il nest pas dautre faon de prvoir ce quisera jug. P. Esmein, La jurisprudence et la loi (1952) 50 Rev. trim. dr. civ. 17 at p. 19.53 Ernest Faye,La Cour de Cassation, Paris, 1970 (reprint of the 1903 Paris edition), at p. 1. See also D.Pollard, Sourcebook on French Law, 1997 at p. xviii and Kahn-Freund, Lvy & Rudden, A Source-Bookon French Law, 3 Ed., 1991 at p. 260.54 Art. 5 of the Civil Code (France) expressly prohibits any judicial decision to act as controlling in a futurelitigation (arrts de rglement). Nosuch similar article appears in the Qubec Civil Code of 1866 or theLouisiana Civil Code of 1985. Art. 5, the equivalent article in the Belgian Civil Code, was abolished onOctober 10, 1967. See Planiol, Trait Elmentaire de Droit Civil, 5 Ed., Paris, 1950, para. 128. J. Ghestinet G. Goubeaux, Trait de Droit Civil, Introduction Gnrale, 4 Ed., Paris, 1994, para. 478.


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The purpose of a judgment in a civil law jurisdiction is to settle a particulardispute, and the decision is not intended as a guide to settle future disputes.55 In Francethis results in a very large Supreme Court, in that the Cour de Cassation has six divisionsfor a total of 85 judges.56 There exists as well a Conseil dtat57 and a ConseilConstitutionnel.58 In comparison, the United States has a Supreme Court of nine justices,

as does Canada, while there are approximately a dozen active Law Lords in the UnitedKingdom at any one time. Civil law decisions in France are brief usually only three orfour printed pages in a style that is quite original. The opinions are written in a singlesentence and rarely refer to the facts.59 A French Supreme Court decision will usuallysend the case back to the Appeal Court with an order to rectify its decision along certainlines, and the appeal courts do the same thing to the trial court decisions when theyoverturn them. Most reported decisions are followed by a brief commentary on thedecision by a noted authority or doctor of law. These commentaries, which outline thefacts and the law, are far more valuable (except to the parties) than the judgment, and it isthese commentaries that form part ofla doctrine.60

55

Nevertheless, civil law courts will on occasion direct new trends in the law or even make new law. Forexample, the Cour de Cassation of France in the Arrt Desmares, Cour de Cassation July 21,1982, Bull.1982, II, No. 111, at p. 81, D. 1982, 449, with note by Christian Larroumet, broke completely with thedoctrine and the clear meaning of art. 1384(l) c.c. to deny proportionate fault in a car/ pedestrian accident.The driver and his insurer were obliged to compensate the victim fully. See also J.Ghestin & G. Goubeaux,Trait de Droit Civil. Introduction Gnrale, 4 Ed., Paris, 1994 at para. 480, concerning the attitude ofsome French courts to abusive clauses in consumer contracts.56 As of 1996, the Cour de Cassation had 85 full judges, as well as 43 assistant judges (conseillersrfrendaires) and 18 newly qualified judges acting as administrative assistants (auditeurs). See C.Elliott & C. Vernon,French Legal System, Longman, Pearson Education Limited, Harlow, England, 2000at p. 68.57 The primary functions of the Conseil dtat are: (1) to review and comment on legislative proposals (lesprojets de lois, as well as certain decrees, (2) to act as court of instance in certain areas of administrative

law, and (3) to act as the supreme court for decisions rendered by administrative courts and administrativecourts of appeal. The Conseil dtat is now governed by the Code de justice administrative, arts. L-111-1to L.137-1 and R.112-1 to R.135-11, which were enacted by Ordonnance no. 2000-387 (Partie lgislative)of May 4, 2000 and Decrees nos. 2000-388 and 2000-389 of May 4, 2000 (Partie rglementaire) and whichtogether replace the formerOrdonnance no. 45-1708 of July 31, 1945 and the two decrees of July 30, 1963(Decrees nos. 63-766 and 63-767) as amended. See Yves Gaudemet, Trait de droit administratif, 16 Ed.,tome 1, L.G.D.J., Paris, 2001 at paras. 735-753; Jean Gicquel, Droit constitutionnel et institutionspolitques, 18 Ed., Montchrestien, Paris, 2002 at pp. 606-607.58 The role of the Conseil Constitutionnel is essentially to act as protector of individual liberties and toregulate the activities of government (les pouvoirs publics). It also supervises elections and judgesdisputes related to them.See Title VII (arts. 56-63) of the French Constitution of October 4, 1958 andOrdonnance no. 58-1067 of November 7, 1958. See also C. Elliott & C. Vernon, French Legal System,Longman, Pearson Education Limited, Harlow, England, 2000 at pp. 78-82; Jean Gicquel, Droit

constitutionnel et institutions politiques, 18 Ed., Montchrestien, Paris, 2002, at pp. 715-730.59 For a sympathetic explanation of the French manner of drafting judgments, see Pierre Mimin, Le Styledes Jugements, 4 Ed., Librairies techniques, Paris, 1978, at pp. 185 and 187. See also A. Touffait and A.Tunc, Pour une motivation plus explicite des dcisions de justice, notamment de celles de la Cour deCassation (1974), 72 Rev. Trim. dr. civ. 487. See also Ch. Perelman, Logique juridique, nouvellerhtorique, Paris, 1979, para. 83.60 A French author of the turn of the century, E. Meynial assigns to the elaborate case annotation perhapsthe most characteristic and original element of French legal writing a major historic role in bridging thegap between academic theory (lcole) and judicial and advocational practice (le Palais). Meynial, LesRecueils darrts et les Arrtistes, in Livre du centenaire du Code civil, t. 1, Paris, 1979 (reprint of the


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b) Mixed jurisdictions

Quebec and Louisiana are mixed jurisdictions, having civil law codes but commonlaw style statutes, legal administrations and court systems. The result is that these mixed

jurisdictions have civil law codes, which are drafted and interpreted in the civil lawtradition, while the decisions of the courts are written in the common law style and areacknowledged as binding precedent. Stare decisis isas strong in a mixed jurisdiction asin a common law jurisdiction.61

3) Stare decisis - the supreme courts

The highest court of a common law jurisdiction is usually bound by its owndecisions. Most supreme courts, nevertheless, have held that this does not apply in everycase.

a)The Court of Justice of the European Communities

The decision and opinions of the Court of Justice of the European Communities(the European Court of Justice) interpreting European Union treaties and otherCommunity legislation are binding on United Kingdom courts, including the House ofLords, as they are on all the highest courts of member-States of the E.U.62 Also bindingon those national courts are the preliminary rulings rendered by the European Court ofJustice63 on questions of interpretation of the E.U. treaties, the validity and interpretationof acts of the institutions of the E.U. and the European Central Bank, and theinterpretation of statutes of bodies established by an act of the Council, in response toreferences made by national courts of E.U. member-States under art. 234 of the Treaty

Establishing the European Community.64

b) The European Court of Human Rights

1904 Paris edition), at pp. 173 et seq. See generally Kahn-Freund, Lvy and Rudden, A Source-book onFrench Law, 3Ed., 1991 at pp. 255-258. See also D. Pollard, Sourcebook on French Law, 1997 at p. xxv.61 See J.-L. Baudouin, The Impact of the Common Law on the Civilian Systems of Louisiana andQuebec, in J. Dainow (ed.), The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed

Jurisdictions, Baton Rouge, 1974, at pp. 11 et seq. and W. Friedmann, Stare Decisis at Common Law andunder the Civil Code of Quebec (1953) 31 Can. Bar Rev. 723 at p. 741 et seq.62 In the specific case of the United Kingdom, see the European Communities Act, 1972, U.K. 1972, c. 68,sect. 3, as amended by the European Communities (Amendment) Act 1986, U.K. 1986, c. 58, sect. 2;Ingram,supra at pp. 377 and 388.63 Note, however, that the European Court of Justice itself is not bound by its own judgments or opinions.See Ingman,supra at p. 388.64 The Treaty Establishing the European Community is the Treaty of Rome of March 25, 1957, originallycalled the Treaty Establishing the European Economic Community, but renamed by the Treaty onEuropean Union (the Treaty of Maastricht) of 1992.


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Since the European Convention on Human Rights65 has become directlyapplicable in the U.K., pursuant to the Human Rights Act 1998,66 U.K. courts, in rulingon cases arising under the Convention, are obliged to take account of any relevantjudgments, decisions, declarations and opinions of the European Court of Human Rights,the European Commission and the Committee of Ministers of the Council of Europe,

wherever made or given.67

c) The House of Lords

In 1966, a Practice Statement (Judicial Precedent) was issued in the House ofLords as follows:68

Their Lordships regard the use of precedent as an indispensablefoundation upon which to decide what is the law and its application toindividual cases. It provides at least some degree of certainty upon whichindividuals can rely in the conduct of their affairs, as well as a basis for

orderly development of legal rules.

Their Lordships nevertheless recognize that too rigid adherence toprecedent may lead to injustice in a particular case and also unduly restrictthe proper development of the law. They propose therefore to modify theirpresent practice and, while treating former decisions of this House asnormally binding, to depart from a previous decision when it appears rightto do so.

In this connection they will bear in mind the danger of disturbingretrospectively the basis on which contracts, settlements or property and

65 The Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Councilof Europe at Rome on 4th November 1950, to which the U.K. became a party in 1951.66 U.K. 1998, c. 42, in force October 2, 2000.67Human Rights Act 1998, sect. 2(1).68 [1966] 1 W.L.R. 1234, [1966] 3 All E.R. 77 (H.L.). As the following judgments make it clear, the powerof the House of Lords to overrule one of its own previous decisions will be used very sparingly: Reg. v.National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944 and Carter v. Bradbeer [1975]W.L.R. 1204 (H.L.). See also Fitzleet Estates Ltd. v. Cherry [1977] 3 All E.R. 996 (H.L.). InFood Corp.of India v. Antclizo Shipping Corp. [1988] 2 All E.R. 513 at p. 516, [1988] 2 Lloyds Rep. 93 at p. 96(H.L.), it was held that to justify a review, the Law Lords must feel free to depart from both the reasoningand the decision in the previous case, and they must be satisfied that such a departure would help resolve

the dispute in the case at bar. In R. v. Secretary of State for the Home Department (ex parte Khawaja)[1983] 2 W.L.R. 321 at p. 339 (H.L.)., Lord Scarman construed the Practice Statement of 1966 to meanthat the House of Lords, before departing from a previous decision must be satisfied: 1) that continuedadherence to the precedent would involve the risk of injustice and would obstruct the proper developmentof the law; and 2) that departure from the precedent was the safe and appropriate way of remedying theinjustice and developing the law. For an example of a reversal meeting these criteria, see KleinwortBenson Ltd. v. Lincoln City Council [1998] 4 All E.R. 513 (H.L.), where the 200-year-old common lawrule that money paid under a mistake of fact could not be recovered, was overruled, and should beabolished, as it had been in other Commonwealth countries and as the Law Commission had recommendedin 1994.


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fiscal arrangements have been entered into and also the especial need forcertainty as to the criminal law.

This announcement is not intended to affect the use of precedentelsewhere than in this House.

d) The Supreme Court of the United States

The importance of thestare decisis doctrine in admiralty in the United States stemsfrom the power of the Supreme Court to fashion substantive rules of law which thenbecome binding upon the lower Circuit Courts of Appeal and the District Courts.69 Thispower was given to the Supreme Court by the grant of maritime and admiraltyjurisdiction in article III of the U.S. Constitution. The result, as stated by the U.S.Supreme Court in United States v. Reliable Transfer, is the Court's ability to fashion thesubstantive law in admiralty matters:70

But the judiciary has traditionally taken the lead in formulating flexibleand fair remedies in the law maritime, and Congress has largely left tothis Court the responsibility for fashioning the controlling rules ofadmiralty law.Fitzgeraldv. United States Lines Co., 374 U. S. 16, 20.

More recently, the Eleventh Circuit relied upon this grant of power in Schiffs.Leonhardt v. A. Bottacchi,71 todeclare that the admiralty attachment under the generalmaritime law as it was at the time of the adoption of the Constitution, co-exists with theattachment under Supplemental Rule B, because Congress did not specifically abrogatethat attachment.

The rationale for thestare decisis doctrine was explained by the Supreme Court inMoragne v. States Marine Lines as follows:72

Very weighty considerations underlie the principle that courts should notlightly overrule past decisions. Among these are the desirability that thelaw furnish a clear guide for the conduct of individuals, to enable them to

69 For an example of a U.S. Supreme Court decision changing the prior American maritime law asexpounded by the circuits courts of appeals and the district courts, see Vimar Seguros y Reaseguros S.A. v.M/V Sky Reefer 515 U.S. 528, 1995 AMC 1817 (1995), where the Supreme Court, overturning IndussaCorp. v. S.S. Ranborg377 F.2d 200, 1967 AMC 589 (2 Cir. en banc 1967) and many other precedents

flowing from it, found that foreign arbitration clauses in bills of lading did not per se relieve or lessen thecarriers liability contrary to sect. 3(8) of U.S. COGSA (46 U.S.C. Appx. 1303(8)), and hence were notperse unenforceable in the United States.70 421 U. S. 397 at p. 409, 1975 AMC 541 at p. 550 (1975). Another major change made by a U.S.Supreme Court decision in American admiralty law was the elimination of the common-law contributorynegligence bar to recovery in ship collision, in favour of the comparative (proportional) fault rule ofdivision of collision damages - a rule which was later enshrined in the Collision Convention 1910. See TheMax Morris 137 U.S. 1 at pp. 14-15 (1890).71 773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985).72 398 U.S. 375 at p. 403, 1970 AMC 967 at p. 989 (1970).


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plan their affairs with assurance against untoward surprise; the importanceof furthering fair and expeditious adjudication by eliminating the need torelitigate every relevant proposition in every case; and the necessity ofmaintaining public faith in the judiciary as a source of impersonal andreasoned judgments. The reasons for rejecting any established rule must

always be weighed against these factors.

The Fifth Circuit, citing the above holding in Moragne in Coats v. PenrodDrilling Corp.,73 made an interesting reflection on the special importance of the firstfactor (predictability of decisions) for maritime law:

With respect to the first factor, considered to be the mainstay of staredecisis,, we recognize that the need for predictability in the commercialmaritime arena is arguably greater than in other areas of law andcommerce. This is true because there are already numerous and inherentlyunpredictable factors stemming from the perils of the sea and the continual

- and frequently fortuitous - interaction with enterprises of other nations. Itis axiomatic that when the rules of law are clear, parties may contractwithin or around their boundaries, and the commercial system is facilitatedin many ways, including reduced litigation, more favorable insurancecoverage, and overall ease of application.

The Supreme Court of the United States, while willing to change its own case-lawwhere indicated, nevertheless does not depart lightly from its own established precedents.InDickerson v. U.S., for example, it held that:74 stare decisis carries such persuasiveforce that the Court has always required a departure from precedent to be supported bysome special justification. The U.S. Supreme Court has declared itself to be particularly

wary of disturbing precedent in matters of statutory construction.75

e) The Supreme Court of Canada

The most authoritative Canadian statement on the meaning of obiter and staredecisis, and whether the Courts of Appeal of Canada are bound by decisions of theSupreme Court of Canada is to be found inBinus v. The Queen:76

If the matter were res integra Iwould find the reasoning of my brotherJudson and that of Laskin J.A. in the case at bar most persuasive; but it

73

61 F.3d 1113 at p. 1137, 1996 AMC 1 at p. 38 (5 Cir. 1995).74 530 U.S. 428 at p. 429 (2000). See alsoArizona v.Rumsey 467 U.S. 203, 212 (1984), to the same effect.75 the burden borne by the party advocating the abandonment of an established precedent is greaterwhere the [Supreme] Court is asked to overrule a point of statutory construction (since) considerations ofstare decisis have special force in the area of statutory interpretation (where) the legislative power isimplicated, and Congress remains free to alter what we have done."Patterson v.McLean Credit Union 491U.S. 164 at p. 173 (1989). For an interesting analysis of precedent in the U.S. Supreme Court, see SaulBrenner & Harold J. Spaeth, Stare Indecisis. The Alteration of Precedent on the Supreme Court, 1946-1992, Cambridge University Press, 1995.76 [1967] S.C.R. 594 at pp. 600-601.


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appears to me that inMann v. The Queen, [1960]S.C.R. 238at least fiveof the seven members of this Court who heard the appeal decided thatproof of inadvertent negligence is not sufficient to support a convictionunder s. 221(4) and that in so deciding they were expressing a legalproposition which was a necessary step to the judgment pronounced. I find

it impossible to treat what was said in this regard as obiter, and, in myrespectful view, that proposition should have been accepted by the Courtof Appeal under the principle ofstare decisis. The binding effect of aproposition of law enunciated as a necessary step to the judgmentpronounced is not lessened by the circumstance that the Court might havereached the same result for other reasons.

Cartwright J. then commented on whether the Supreme Court of Canada wasbound by its own decisions:77

I do not doubt the power of this Court to depart from a previous

judgment of its own but, where the earlier decision has not been madeperincuriam, and especially in cases in which Parliament or the Legislature isfree to alter the law on the point decided, I think that such a departureshould be made only for compelling reasons. The ancient warning,repeated by Anglin CJ.C. in Daoust, Lalonde & Cie Lte v. Ferland,[1932] S.C.R. 343 at p. 351, (1932)2D.L.R. 642 at p. 651, ubi jus est autvagum aut incertum, ibi maxima servitus prevalebit, should not beforgotten.

In 1975, in Harrison v. Carswell,78Chief Justice Laskin of the Supreme Court,while dissenting on the main issue, elucidated further:

This Court, above all others in this country cannot be simply mechanisticabout previous decisions, whatever be the respect it would pay to suchdecisions. What we would be doing here, if we were to say that the Peterscase, because it was so recently decided, has concluded the present casefor us, would be to take merely one side of a debatable issue and say that itconcludes that debate without the need to hear the other side.

I do not have to call upon pronouncements of members of this Court thatwe are free to depart from previous decisions in order to support thepressing need to examine the present case on its merits.

The Supreme Court has repeatedly reaffirmed its authority to overrule its priorcase-law, where compelling reasons for doing so are demonstrated.79

77Ibid. at p. 601. See also the explicit approval of Cartwright, J.s holding on this point in Minister ofIndian Affairs v.Ranville [1982] 2 S.C.R. 518 at p. 528perRitchie, J.78 [1976] 2 S.C.R. 200 at p. 205, (1976) 62 D.L.R. (3d) 68 at pp. 71-72.79 See Reference Re The Farm Products Marketing Act[1957] S.C.R. 198 at p. 212; Binus v. The Queen[1967] S.C.R. 594 at p. 601;Peda v. The Queen [1969] S.C.R. 905 at p. 911;Barnettv.Harrison [1976] 2


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Thus one can say that in Canada the courts of appeal and the lower courts are

bound by the decisions of the Supreme Court,80 and the lower courts are bound by thedecisions of the appeal courts. The Supreme Court of Canada itself, is not bound by itsown decisions, however.81

4) Stare Decisis - Intermediate Appeal Courts

To what extent are the courts of intermediate appeal (i.e. appellate courts whosedecisions are subject to review by a higher court) bound by their own decisions?

a) The United KingdomIn the United Kingdom, the Court of Appeal is bound by decisions of the House

of Lords, but is not absolutely bound by its prior decisions. Thus, in Youngv. BristolAeroplane Co.,82Lord Greene M.R., in referring to the Court of Appeal of the United

Kingdom, stated: The Court is entitled and bound to decide which of two conflictingdecisions of its own it will follow. In fact, the Youngdecision listed three categories ofcase in which the Court of Appeal was authorized to depart from one its own previousdecisions:83 1) where its previous decisions were in conflict with one another;84 2) whereone of its previous decision was inconsistent with a House of Lords decision, even if theprevious decision had not been expressly overruled by the Law Lords;85 and 3) where itsprevious decision had been renderedper incuriam (i.e. by mistake or carelessness).86

S.C.R. 531 at p. 559; Capital Cities Communications Inc. v. Canadian Radio-Television Commission[1978] 2 S.C.R. 141 at p. 161; A.V.G. Management Science Ltd. v. Barwell Developments Ltd. [1979] 2S.C.R. 43, at p. 57;Bellv. The Queen [1979] 2 S.C.R. 212 at pp. 219-220; Minister of Indian Affairs and

Northern Developmentv.Ranville [1982] 2 S.C.R. 518 at p. 527;R. v.Bernard[1988] 2 S.C.R. 833 at pp.849-850;R. v. Robinson [1996] 1 S.C.R. 683 at p. 724: It is beyond doubt that this Court has the power tooverrule one of its previous decisions if there are compelling reasons for departing from the principle ofstare decisis. (perLHeureux-Dub, J., dissenting on other grounds).80 SeeR. v.Robinson [1996] 1 S.C.R. 683 at pp. 724-725 (perLHeureux-Dub, J.): In our system of law,lower courts are obliged to follow the decisions of this Court and, if they fail to do so, they may be inerror.81 For examples of the Supreme Court of Canada refusing to follow its own precedents, where departingfrom them appeared reasonable and just, see Paquette v. The Queen [1977] 2 S.C.R. 189 at p. 197;McNamara Construction (Western) Ltd. v. The Queen [1977] 2 S.C.R. 654 at p. 661; Vetrovec v. TheQueen [1982] 1 S.C.R. 811 at p. 830; R. v.Bernard[1988] 2 S.C.R. 833 at p. 850; Clarkv. CNR [1988] 2S.C.R. 680 at p. 704; Alberta Human Rights Commission v. Central Alberta Dairy Pool [1990] 2 S.C.R.489 at pp. 512 and 517;R. v.Robinson [1996] 1 S.C.R. 683 at pp. 710 and 738.82

[1944] K.B. 718 at p. 729,[194412 All E.R. 293 at p. 300 (C.A.).83 See generally T. Ingman,English Legal System, 5 Ed., Oxford University Press, Oxford, 2000 at pp.401-403.84 See, for example,National Westminster Bank plc v.Powney [1990] 2 All E.R. 416 (C.A.); Finnegan v.Parkside Health Authority [1998] 1 All E.R. 595 (C.A.).85 See, for example,Family Housing Association v.Jones [1990] 1 All E.R. 385 (C.A.).86 Most often, a decision is rendered per incuriam, where the court fails to consider a particular statutewhich applies or some binding precedent relevant to the case. See, for example, Duke v.Reliance SystemsLtd. [1987] 2 All E.R. 858 (C.A.), upheld without discussion of the per incuriam point inDuke v. G.E.C.Reliance Ltd. [1988] A.C. 618 (H.L.).


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Lord Denning took a wider view, believing that after 1966, House of Lords

decisions were no longer binding on the Court of Appeal,87 and that the Court of Appealitself was free to depart from its own precedents generally, and not just in the threeexceptional cases identified in Young. On the latter point, he declared in Gallie v. Lee:88

I do not think we are bound by prior decisions of our own, or at anyrate, not absolutely bound .We are not fettered as it was once thought. Itwas a self-imposed limitation: and we who imposed it can also removed it.The House of Lords have done it. So why should not we do likewise? Weshould be just as free,, no more and no less, to depart from a priorprecedent of our own, as in like case is the House of Lords or a judge offirst instance. It is very, very rarely that we will go against a previousdecision of our own, but if it is clearly shown to be erroneous, we shouldbe able to put it right.

Lord Dennings position did not find favour with the Law Lords, who criticizedhis conclusion in a number of decisions, reaffirming that the House of Lords bound theCourt of Appeal89 (even where the Houses decisions were wrong) and that the Court ofAppeal could only abandon its own previous case-law in the three exceptional situationsevoked in Young.90 One particularly strong rebuff was voiced by Lord Scarman inDavisv.Johnston:91

[T]he rule as it had been laid down in the Bristol Aeroplane case hadnever been questioned thereafter until, following upon the announcementby Lord Gardiner LC in 1966 that the House of Lords would feel free inexceptional cases to depart from a previous decision of its own, Lord

Denning MR conducted what may be described, I hope without offence, asa one-man crusade with the object of freeing the Court of Appeal from theshackles which the doctrine ofstare decisis imposed upon its liberty ofdecision.In my opinion, this House should take this occasion to reaffirm expressly,unequivocally and unanimously that the rule laid down in the BristolAeroplance case as to stare decisis is still binding on the Court ofAppeal.

87

See, for example, Lord Dennings statements in Schorsch Meier GmbH. v.Hennin [1975] Q.B. 416 atpp. 424-425 (C.A.).88 [1969] 2 Ch. 17 at p. 37, [1969] 1 All E.R. 1062 at p. 1072 (C.A.). See also Tiverton Estates Ltd. v.Wearwell Ltd. [1975] Ch. 146 at p. 160, [1974] 1 All E.R. 209 at p. 218 (C.A.).89 Cassell & Co. Ltd. v. Broome [1972] A.C. 1027 at p. 1054 (H.L. per Lord Scarman); Miliangos v.George Frank(Textile)Ltd. [1976] A.C. 443 at p. 496 (H.L.perLord Cross).90Tiverton Estates Ltd. V. Wearwell Ltd. [1975] Ch. 146 at pp. 72-173 (H.L.perLord Scarman);Davis v.Johnston [1979] A.C. 264 (H.L.). Lord Denning described the House of Lords decision in Davis as mymost humiliating defeat. See The Discipline of the Law, 1979 at p. 299.91 [1979] A.C. 264 at pp. 325-328 (H.L.).


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Today, it seems clear that the Court of Appeal is bound by the House of Lords. Itis also likely that the Court of Appeal, as well as the House of Lords and the lowercourts, would be bound by decisions of the European Court with respect to matters ofEuropean Union law as it applies to the U.K.92

Of course, Court of Appeal decisions are binding on the High Court and thecounty courts, but not on the House of Lords.

b) The United States Circuit Courts of Appeals

The role ofstare decisis and precedent in general is unique in the United Statesbecause of the particular make-up of the federal judiciary. Since the federal courts havejurisdiction over all admiralty and maritime cases,93 it is important to understand thepotential effect of a particular decision upon the other courts.

The courts of instance in the federal system are the United States District Courts.

These are divided by statute into ninety-one districts, with each state comprising at leastone district.94 The district courts, in turn, are grouped together into thirteen judicialcircuits, each containing a United States Court of Appeals for that circuit.95 The work ofthese courts of appeals is mainly appellate, with review taken from the district courtslocated within the judicial circuit.

All federal courts, both district96 and circuit,97 are bound under the principle ofstare decisis to follow the decisions of the United States Supreme Court. The same ruleof obedience applies to the District Courts, which are bound by the decisions of the court

92 Ingman, supra at pp. 406-407. Ingman believes that the Court of Appeal would be required to departfrom any of its previous decisions which was found to be inconsistent with European Community law.93 28 U.S. Code sect. 1333.94 28 U.S. Code sects. 81-131.95 28 U.S. Code sect. 41.96 SeeIn re Bernstein 81 F. Supp.2d 176 at p. 1818, 2000 AMC 760 at p. 767 (D. Mass. 1999): Where theSupreme Court has spoken to an issue, it is the duty of the lower federal courts to follow that analysiswithout regard to arguably changed conditions. Indeed, the First Circuit has very recently acknowledgedthe duty of the lower federal courts to follow the Supreme Court's directly applicable precedent, even ifthat precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the[Supreme] Court the prerogative of overruling its own decisions. National Foreign Trade Council v.Natsios, 181 F.3d 38, 59 (1 Cir. 1999) (quotingAgostini v.Felton, 521 U.S. 203, 237 [1997]).97

Red Star Barge Line, Inc. v.Nassau County Bridge Authority 683 F.2d 42 at p. 45, 1982 AMC 2588 at p.2591 (2 Cir. 1982), re the century-old, obsolescent doctrine (see AMC headnote) that insurance proceedspaid to a shipowner entitled to limit liability are not available to the injured party must be followed until re-examined by the U.S. Supreme Court. See also Stewartv.Dutra Construction Co., Inc. 230 F.3d 462 at p.467, 2001 AMC 1116 at p. 1121 (1 Cir. 2000): Prior circuit precedent will yield to a contrary decisions ofthe Supreme Court or to a statutory overruling, citing Williams v.Ashland Engineering Co. 45 F.3d 588 at

p. 592 (1 Cir. 1995).


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of appeals of the circuit in which the district court is located.98 As recently stated by onedistrict court judge in Owen-Illinois, Inc. v. Aetna Casualty andSurety Co.:99

The doctrine ofstare decisis compels district courts to adhere to adecision of the Court of Appeals of their Circuit until such time as the

Court of Appeals or the Supreme Court of the United States sees fit tooverrule the decision.

The picture becomes far less clear, however, when there is no binding precedentfrom that circuit and all that exists are district court decisions, because the district courtsare not bound either by other district courts100 or by the courts of appeals from anothercircuit. Decisions not in the direct hierarchical chain are considered as having onlypersuasive authority.101 The result is that the circuits often develop the law along parallelor even conflicting lines.102 Whether or not there is a conflict between the circuits isoften the determinative factor in obtaining review by the Supreme Court.103

98

See, for example, Guevara v. Cia Sud Americana de Vapores 1978 AMC 2000 at p. 2005(D. C.Z.):Until and unless, Congress or the Fifth Circuit considers the matter, this Court is of the opinion that it isbound to follow the precedent established in Sandoval[a Fifth Circuit decision].99 597 F. Supp. 1515 at p. 1520 (D. D.C. 1984).100 See, for example,Fishman & Tobin, Inc. v. Tropical Shipping & Construction Co., Ltd. 240 F.3d 956 at

p. 965, 2001 AMC 1663 at p. 1674 (11 Cir. 2001): Unlike circuit court panels where one panel will notoverrule another, seeJulius v.Johnson, 755 F.2d 1403, 1404 (11 Cir. 1985), district courts are not held tothe same standard. While the decisions of their fellow judges are persuasive, they are not bindingauthority. See Aguirre v. United States, 956 F.2d 1166 (9 Cir. 1992) (unpublished);. As a result, thedistrict court cannot be said to be bound by a decision of one of its brother or sister judges.101 See 13 Moore's Federal Practice R. 0402[l], at p. 15.102 A classic case of this kind of inter-circuit division in interpreting U.S. COGSA has developed as

between the Ninth Circuit, on the one hand, and the Second, Fifth and Eleventh Circuits, on the other, in

respect of the burden of proof in cases of cargo loss or damage caused by fire. In the Ninth Circuit, thedefendant carrier, to be exonerated from liability for such fire loss under COGSA, must first prove that itexercised due diligence to make the ship seaworthy before and at the beginning of the voyage, in respect ofthe loss. See Sunkist Growers v. Adelaide Shipping Lines 603 F.2d 1327 at pp. 1335-1336, 1979 AMC2787 at p. 2807 (9 Cir. 1979), cert. denied, 444 U.S. 1012, 1980 AMC 2102 (1980); Hasbro Industries,Inc. v. M.S. St. Constantine 705 F.2d 339 at p. 341, 1983 AMC 1841 at pp. 1842-1843 (9 Cir. 1983);Complaint of Damodar Bulk Carriers, Ltd. 903 F.2d 675 at p. 686, 1990 AMC 1544 at pp. 1560-1561 (9Cir. 1990); Nissan Fire & Marine Ins. Co., Ltd. v. M/V Hyundai Explorer93 F.3d 641 at pp. 645-646,1996 AMC 2409 at p. 2413 (9 Cir. 1996). On the other hand, in the Second, Fifth and Eleventh Circuits,the carrier does need to make any such proof of due diligence before invoking the fire exception ofCOGSA, but needs only to prove that the loss or damage was caused by fire, after which the cargoclaimant must try to prove that the fire resulted from the design or neglect, or the actual fault or privity, ofthe carrier or his servants or agents. See Ta Chi Navigation (Panama) Corp. S.A. 677 F.2d 225 at p. 228,

1982 AMC 1710 at p. 1713 (2 Cir. 1982); Westinghouse Electric Corp. v.M/V Leslie Lykes 734 F.2d 199,1985 AMC 247 (5 Cir. 1984); Banana Services, Inc. v. M/V Tasman Star68 F.23d 418 at p. 421, 1996AMC 260 at p. 264 (11 Cir. 1995). See generally W. Tetley,Marine Cargo Claims, 3 Ed., 1988, Chap. 17:Fire. As a result of these divergent interpretations, a U.S. Supreme Court decision or remedial legislationwill be required to clarify the legal principle at stake. See Terry Marquez, The Ninth Circuit Fails to Mendthe Inter-Circuit Split Regarding the Burden of Proof in Fire Statute Cases: Nissan Fire & MarineInsurance Co. v. M/V Hyundai Explorer (1997) 21 Tul. Mar. L.J. 629 at pp. 640-641.103 Rule 10 of the United States Supreme Court, which governs review on certiorari, reads in part asfollows: 1. A review on writ of certiorari is not a matter of right, but of judicial discretion. A petition for awrit of certiorari will be granted only for compelling reasons. The following, although neither controlling


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c) Canada

Each of the ten provinces and three territories in Canada has its own Court ofAppeal. Judicial attitudes respecting the doctrine of the stare decisis vary from one court

to another. The Ontario Court of Appeal, from the standpoint of strict adherence to thedoctrine ofstare decisis,has been characterized as the most conservative.

In general, the appellate courts of the common-law provinces and territories arebound by the decisions of the Supreme Court of Canada,104 and ordinarily follow theirown previous decisions, although they may overrule their past judgments where seriousreasons warrant doing so.105 They are not bound by the decisions of other Canadiancommon-law appellate courts, such decisions being purely persuasive authority.106 Thedecisions of the courts of appeal in each common-law province or territory bind thecourts inferior to them within that same jurisdiction.107 The latter courts (i.e. provincialsuperior and inferior courts) usually follow the decisions of courts of co-ordinate

jurisdiction, but may depart from them where there are strong reasons for doing so (e.g.where the decisions of the other courts are inconsistent or were rendered perincuriam).108

On the other extreme, the Qubec Court of Appeal (Qubec is a mixedjurisdiction) has never considered itself bound by previous decisions.109 Nevertheless,

nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers: (a) aUnited States court of appeals has entered a decision in conflict with the decision of another United Statescourt of appeals on the same important matter; has decided an important federal question in a way thatconflicts with a decision by a state court of last resort; or has so far departed from the accepted and usualcourse of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of

this Court's supervisory power;104R. v. Wolf[1975] 2 S.C.R. 107, (1975) 47 D.L.R.(3d) 741.105 See, for example, Nova, An Alberta Corp. v. Guelph Engingeering Co. (1984) 30 Alta. L.R.(2d) 183,(1984) 5 D.L.R. (4th) 755 (Alta. C.A.); Green v. A.-G. for British Columbia (1986) 29 C.R.R. 35 (B.C.S.C.), referred to in R.V.P. Enterprises Ltd. v. British Columbia (Minister of Consumer and CorporateAffairs) [1988] 4 W.W.R. 726, (1988) 25 B.C.L.R.(2d) 219, (1988) 50 D.L.R.(4 th) 394 (B.C. C.A.), leaveto appeal denied, [1988] 6 W.W.R. lxix (note), (1988) 28 B.C.L.R.(2d) xxxi (note), (1988) 50 D.L.R.(4 th)vii (note) (Supr. Ct. Can.). See generally Gerald L. Gall, Canadian Legal System, 4 Ed., Carswell, Toronto,1995 at pp. 351-353.106R. v. Wolf[1975] 2 S.C.R. 107, (1975) 47 D.L.R.(3d) 741; R v. Tait[2001] O.J. No. 2948 at para. 81;Gall, op. cit. at pp. 355-356.107R. v. Northern Electric Co. Ltd. [1955] O.R. 431, [1955] 3 D.L.R. 449 (Ont. High C.). Lower

provincial/territorial courts are not bound, however, by decisions of courts of co-ordinate jurisdiction in

other provinces or territories, or by the decisions of the appellate courts of other provinces or territories.See R v. Constable Transport Ltd. [1967] 1 O.R. 357, (1966) 60 D.L.R.(2d) 577 (Ont. County C.); R v.Beaney [1969] 2 O.R. 71, (1969) 4 D.L.R.(3d) 369 (Ont. County Ct.); Gall, op. cit. at pp. 357-358.108Horne v. Horne Estate (1986) 54 O.R.(2d) 510 (Ont. High C.), affd on other grounds, (1987) 60O.R.(2d) 1, (1987) 37 D.L.R.(4th) 216 (Ont. C.A.);Re Ellwood Robinson Ltd. and Ohio Dev. Co. (1975) 7O.R.(2d) 556 (Ont. Dist. C.);Holmes v.Jarrett[1993] 1 I.L.R. 1-2949 (Ont. Ct. Gen. Div.);R. v.Koziolek(1999) 40 M.V.R. (3d) 304 (Ont Ct. Gen. Div.); Gall, op. cit. at pp. 356-357.109Reidv. McFarlane (1893) 2 C.B.R. 130;Mignerv. St. Lawrence Fire Insurance Co. (1901) 10 C.B.R.122; Callpro Canada Inc. v.Prima Tlmatique Inc. (2001) 16 B.L.R. (3d) 202 at p. 216 (Ont. Supr. Ct.).See Nicole Bernier, Lautorit du prcdent judiciaire la Cour dappel du Qubec (1971) 6 Revue


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Qubecs status as a mixed jurisdiction, in which the civilian private law co-exists withpublic law of common-law inspiration (notably in the constitutional, criminal andadministrative fields), has resulted in jurisprudence (i.e. case-law) having a higherprofile in practice in the Provinces legal system than it would in a pure civil lawjurisdiction. Eliadis has observed:110

Quebec judges tend now to write lengthy judgments setting out facts,reasons and conclusions in much the same style as one sees in Commonlaw jurisdictions. Contrary to the traditional short, non-discursive form ofjudgments in Civil law systems which give no insight into judicialreasoning, the current trend lends itself to the development of legalprinciples and their application to fact patters that are not necessarily onall fours with those in a given precedent. Inevitably, these tensions createserious question as to the proper place and role of decided cases.In practice, however, the issue is largely moot. Cases are cited before theQuebec courts in much the same manner and with the same deference for

appellate decisions as one might find in a Canadian court in a Commonlaw jurisdiction. Even if the theory may vary, lower courts have adopted ade facto principle of stare decisis.

The bulk of litigation on maritime law matters is conducted in Canada in theFederal Court and the Federal Court of Appeal. These Courts, as established by thefederal government under sect. 101 of the Constitution Act, 1867,111 for the betteradministration of the laws of Canada, exercise various heads of jurisdiction defined bythe Federal Court Act.112 In exercising that purely statutory jurisdiction, they are boundonly by decisions of the Supreme Court of Canada, and not by decisions of any othercourt in Canada (e.g. any provincial or territorial court of appeal or any court of lesser

authority).113

The Federal Court of Appeal, as an intermediate appellate court, ordinarilyfollows its own previous decisions, but is not bound to do so, where it finds that any suchdecision is manifestly incorrect,114 following in this matter the principles laid down forthe English Court of Appeal in the United Kingdom in Youngv.Bristol Aeroplane.115

Juridique Thmis 535. For a general survey on the doctrine ofstare decisis in Canadian provincialappel

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