§ 410. “Navigation and Shipping.”

In the United States, it has been held that the power to regulate trade and commerce necessarily implies and includes the power to regulate navigation and shipping, as a part of the means by which trade and commerce are carried on; and that such regulation comprehends the power to prescribe rules in conformity with which navigation must be carried on. (Cooley v. Port Wardens, 12 How. 299.) The commerce power not only extends to the goods transported, but “also embraces within its control all instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged.” (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196.) Accordingly vessels, as well as the articles which they bring, are subject to regulation. (The Brig Wilson v. United States, 1 Brock, 423; cited Baker, Annot. Const. p. 20. See

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p. 540, supra.) The express declaration in this Constitution that the power to regulate trade and commerce extends to navigation and shipping incorporates the effect of the American decisions, and puts their applicability beyond doubt.

A law providing for the recording of any mortgage, hypothecation, or conveyance of a ship has been held in the United States to be a regulation of commerce, and therefore within the power of Congress. (White's Bank v. Smith, 7 Wall. 646.) But “the right of ferriage which a State grants upon a boundary stream, it is said, is in respect of the landing and not of the water. The right of navigation does not authorize appropriation of the banks of the river, or the receipt of tolls for transporting passengers across it.” (Prentice and Egan, Commerce Clause, p. 159.)

The power to regulate navigation covers not only goods, vessels, and carriers, but also the highway upon which navigation is carried on. “The power to regulate commerce is the basis of the power to regulate navigation and navigable waters and streams.” (The Lottawanna, 21 Wall. 558, where it was decided that Congress has power to establish a lien on vessels in favour of material men.) For the federal power of control over navigable rivers, see notes to sec. 100.

It does not follow from this section that the Commonwealth can have no authority over navigation and shipping except what flows from the power to regulate commerce; shipping may be affected and controlled, in some cases, by laws within the other powers of the Parliament. For instance, in the United States it has been held that the extension of the admiralty jurisdiction over all the navigable waters of the United States necessarily involved and implied an extension of the legislative power of Congress. “It was not possible that the body of (maritime) law should remain for ever unalterable, nor that such changes as were necessary should be introduced only by judicial decisions. … It was clear, however, that no legislative power would be adequate unless it was as extensive as the admiralty jurisdiction given to the courts. The necessities of the case, therefore, required legislation by Congress, and this legislation the courts finally supported. The federal legislative power, the court said, ‘is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.’ ” (Prentice and Egan, Commerce Clause, p. 97. Re Garnett, 141 U.S. 1.)

“The jurisdiction of the United States over transportation by water and over the waters themselves is derived, therefore, not only from the commerce clause, but also from the admiralty powers of the general Government, which includes the control of national waterways and of national vessels. Federal jurisdiction over these subjects is, therefore, far more extensive than its jurisdiction over carriers and transportation by land.” (Prentice and Egan, Commerce Clause, p. 98.)

The corresponding provision in the British North America Act (s. 91) is a gift of exclusive legislative authority to the Dominion Parliament in respect of navigation and shipping, without any limitation to foreign and inter-provincial commerce. The gift is, however, qualified in sec. 92, which gives the Provinces exclusive power with respect to local works and undertakings.

“This conferred on the Parliament of Canada legislative authority over all matters occurring in Canadian waters within the subjects Navigation and Shipping, and its co-operation was required to give effect to the same rules of navigation as has (sic) been used in England. (See Eliza Keith, 6 April, 1877; 3 Quebec L. R. 143.) There, the Canadian Act of 1868, 31 Vic. c. 58, which provided that where two ships were each to blame for a collision in Canadian waters, both were precluded from recovering its damages, was held to be operative, although the Admiralty rule which divides the loss prevails in England, and has been applied in a case of collision on Canadian waters in an appeal to the Privy Council.” (Wheeler, Confed. Law of Canada, pp. 70–71.)