The Supreme Court of Canada, in a judgment which could be lourde de conséquences, decided that marine insurance was part of “maritime law” and therefore within Federal jurisdiction, so that the Federal Parliament, in exercising its legislative power under s. 101 of the Constitution Act 1867, could grant jurisdiction to the Federal Court over a marine insurance policy claim by s. 22(2)(r) of the Federal Court Act. The court noted that there was concurrent jurisdiction with the Superior Courts of the provinces over marine insurance but left unsaid whether the present provincial marine insurance Acts were still valid and, if invalid, what “Canadian marine insurance law” consisted of.

construction which had sunk in the calmest of weather could claim under the perils of the sea provisions of a marine insurance policy because a member of the crew had negligently permitted air to escape from the hull of the vessel. Ritchie, J., speaking for the court, held that the fortuitous or unintentional incursion of sea water was foreseeable and a maritime risk and therefore a “peril of the sea”. The decision runs contrary to the principle that for a peril of the sea to exist under a marine insurance policy there must be some outside external force and not merely a negligent act of a member of the crew. In support of his position that negligence of a crewman was immaterial, Ritchie, J., would seem to rely erroneously on Cohen v. National Benefit Assurance Co.3, which was in fact a policy covering “all and every risk”. Ritchie, J., also seems erroneously to confuse perils of the sea under a cargo policy, as per Canada Rice Mills Ltd. v. Union Marine and General Insurance Co. Ltd.4, with perils under a hull policy. Nor was there consideration of the Inchmaree clause in the decision, the respondent having formally abandoned his claim under the clause5.

The Federal Court of Appeal noted that, in order to claim under a marine insurance policy, an insured must show that the vessel sank due to a “peril” insured against. If the cause is unexplained (as in this case), then the insured may demonstrate, after proving the “clear seaworthiness of his vessel”, that on the balance of probabilities a