The essay deals with the problem of the unification of international maritime law by virtue of maritime international customary rules (lex mercatoria maritima). The first part focuses on the underpinnings of the application of customary international law in different countries and, in particular, in Italy and France, then on the evolution of international maritime law as a mixed legal system, drawing from civil law sources, even in England. The second part of the essay deals with the problem of unification of maritime law in Canada, which, as a mixed legal system, owing to the existence of a civil law system in the Province of Québec, could be observed as a “laboratory” of the relationship between civil and common law in maritime law. The analysis of the Canada’s Supreme Court decisions on the field, especially those of the end of the eighties, has been criticized, on the ground that, by assimilating the federal maritime common law, to the common law of England, the civilian nature of maritime law has been ignored, as well as the Canada’s nature of mixed legal system. Nevertheless, by examining the last development of the Canadian jurisprudence on the field of maritime law, the essay concludes that the Canada’s Supreme Court has withdrawn the strict interpretation which assimilated the federal maritime common law to common law of England, by recovering the “sui generis” nature of maritime law, in the view of uniforming the Laws of Canada to those of international maritime community. The last interpretation of the nature of federal maritime law, together with the attention paid by Canadian juridical doctrine to the application of customary international law in Canadian legal system, may lead, on one side, to an unification of internal Canadian maritime law on the ground of a different approach from the one followed in the last two decades of the XX sec; on the other side, may contribute to reduce the lack of uniformity of maritime law worldwide.
Di Bona, D. (2009). Lex mercatoria, civil law e common law, nel processo di unificazione del diritto privato marittimo internazionale. Il "Caso Canada". DIRITTO DEI TRASPORTI, 3/2009(3/2009).
Lex mercatoria, civil law e common law, nel processo di unificazione del diritto privato marittimo internazionale. Il "Caso Canada".
DI BONA, Donato
2009-01-01
Abstract
The essay deals with the problem of the unification of international maritime law by virtue of maritime international customary rules (lex mercatoria maritima). The first part focuses on the underpinnings of the application of customary international law in different countries and, in particular, in Italy and France, then on the evolution of international maritime law as a mixed legal system, drawing from civil law sources, even in England. The second part of the essay deals with the problem of unification of maritime law in Canada, which, as a mixed legal system, owing to the existence of a civil law system in the Province of Québec, could be observed as a “laboratory” of the relationship between civil and common law in maritime law. The analysis of the Canada’s Supreme Court decisions on the field, especially those of the end of the eighties, has been criticized, on the ground that, by assimilating the federal maritime common law, to the common law of England, the civilian nature of maritime law has been ignored, as well as the Canada’s nature of mixed legal system. Nevertheless, by examining the last development of the Canadian jurisprudence on the field of maritime law, the essay concludes that the Canada’s Supreme Court has withdrawn the strict interpretation which assimilated the federal maritime common law to common law of England, by recovering the “sui generis” nature of maritime law, in the view of uniforming the Laws of Canada to those of international maritime community. The last interpretation of the nature of federal maritime law, together with the attention paid by Canadian juridical doctrine to the application of customary international law in Canadian legal system, may lead, on one side, to an unification of internal Canadian maritime law on the ground of a different approach from the one followed in the last two decades of the XX sec; on the other side, may contribute to reduce the lack of uniformity of maritime law worldwide.
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