By Brian Dunn
BLG’s Maritime Law Group is the largest in the country, and serves Canadian and international clients in every sector of the marine industry, including shipping lines, shipowners and operators, charterers, freight forwarders, terminal operators, protection and indemnity insurance providers, hull and machinery underwriters, and general marine insurers.
In terms of representative work, BLG regularly advises NVOCCs around the world in such areas as casualty investigations, environmental incidents, collisions, cargo claim defence and arrest of vessels among other areas. The firm also provides practical and proactive advice to meet the needs and challenges of the marine industry in both “wet law” (collisions, cargo, oil spills, etc.) and “dry law” matters (charter parties, shipbuilding, ship purchases, mortgages etc.)
BLG is at the forefront of maritime law development, often involved in the leading judicial decisions affecting maritime law in Canada. It routinely assists clients in submissions before parliamentary committees and during government inquiries. In addition, it acts for clients during investigations by the Transportation Safety Board, Transport Canada and Canadian Coast Guard and regularly appears before all levels of our judiciary, including the Supreme Court of Canada, as well as domestic and foreign arbitral tribunals.
The firm invests heavily in the support and development of its marine lawyers to become recognized leaders in their sector, and works in conjunction with other practice groups to offer clients a seamless service.
While the law group is small compared to other practice fields such as banking insurance and general insurance, it punches above its weight. “We’re relatively small compared to other departments. The difference is that while we spin off a lot of work to other groups such as corporate, commercial and labour, we rarely get work from them,” explained senior partner Jeremy Bolger who until recently was the department’s national leader, but the torch has now passed to Darren McGuire, who is heavily involved with deserter and stowaway cases in addition to cargo claim defence work and very active immigration work. Mr. Bolger, who specializes in maritime law, land transportation insurance and tort liability, is still the most senior person in the department in terms of experience, but decided it was time to step back. “My 11-year-old was 17 from one year to the next, so I cut back my management responsibilities a number of years ago, but continued my admiralty duties until about four years ago when I handed them over to Peter Pamel who was followed by Darren.”
Mr. Bolger chaired the merger between McMaster Meighen and McKenzie Gervais on behalf of the former and was very much involved in the 2000 merger between law firms Howard Mackie of Calgary, McMaster Gervais of Montreal, Scott & Aylen of Ottawa, Borden & Elliot of Toronto and Ladner Downs of Vancouver to create BLG. His family also has a history with the firm. “Historically, McMaster Meighen was known for its banking and admiralty practices. The first time my father sailed to Canada in the 1920s, a problem arose with respect to the cargo being carried on his ship and McMaster Meighen was called in as the legal correspondent for the P & I Club with which the ship was entered at the time.”
While BLG may be better known to many people for its maritime law practice in the Montreal office than perhaps other areas of law, more admiralty law is being done by in-house law departments at the larger shipping firms, and for that reason there are more lawyers chasing less work.
The firm didn’t have a major shipping presence on the west coast, but that changed after the most recent merger when it was bolstered significantly. And with a generally stagnant shipping industry in the south, BLG is looking to build a major presence in the north. In addition to its quarterly Mari-Times newsletter, it launched a Team North® newsletter about three years ago to tap that market.
An article in a recent Team North® newsletter gives an update on Russia’s arctic development, particularly relating to natural gas development, penned by Damian Hornich in BLG’s Toronto office.
“The Russians are about 15-20 years ahead of us in developing northern shipping. Canadian shipping in the north is mostly servicing northern communities whereas the Russians are developing international shipping in the territory,” Mr. Bolger pointed out. He alluded to a recent Canadian newspaper article that noted some 421 commercial vessels have applied for permission this season to use Russia’s Northern Sea Route to reduce shipping time between Asia and northern Europe by days. They will be supported by nearly two dozen icebreakers and protected by a string of 10 up-to-date search-and-rescue centres along the route. By comparison, Canada has no Arctic commercial ports, while only 61 tankers and cargo ships entered the Canadian Arctic last season, most of them related to community resupply. (Canadian Sailings reported extensively on Arctic shipping developments in its issue of October 14).
But that hasn’t stopped BLG from forging ahead. “We’ve developed close ties with northern transportation and mining companies in Nunavut. I believe we’re expanding our shipping business in the far north more than any other firm,” Mr. Bolger estimated, who added that the Team North® leader is Adam Chamberlain in Toronto who recently took over from Peter Pamel in Montreal after Mr. Pamel’s five-year stint heading up the group ended.
The admiralty group’s bread and butter are cargo claims, but it gets involved in larger cases as well, including a recent collision in the Port of Montreal. Another case involves a claim for $45 million concerning the loss of rotors and turbines over the side of a barge in Saint John Harbour destined for New Brunswick Power. “That case is complicated because of the potential liability of the parties involved and the various claims of entitlement to limit liability,” said Mr. Bolger.
Other work includes marine insurance, regulatory work and commercial work with terminal operators, including Montreal Gateway Terminals and freight forwarders.
“A lot of NVOCCs out there need our advice. We also provide advice and consultations services to a lot of foreign interests, particularly with respect to regulatory changes and environmental issues.
“Shipowners are scrambling due to environmental issues. For example, a ballast water management exchange is an issue that can cost upwards of $4 million a ship. Foreign vessels going into the Great Lakes will soon have to meet state legislative directives, but they can’t because the technology in terms of efficiency hasn’t yet been developed. Someone in (New York’s state capital) Albany doesn’t understand the issues and that 80 per cent of products arrive by ship.
“Trans-border issues are very complicated and there’s a lack of coherent understanding. The EPA (Environmental Protection Agency) and Coast Guard objectives don’t align well or arguably at all with state legislation in some states. So how can foreign and even Canadian shipowners understand compliance issues?”
The hardest part of the job, according to Mr. Bolger, is the human element such as dealing with complex issues during the holidays or the loss of human lives. But Transport Canada and the Transportation Safety Board are very good at investigating the causes of maritime casualties and preventing them from recurring, he added. “They make sure ships meet international conventions to protect seafarers. That’s one of the reasons why we at BLG work so closely with Mariners House. Seafarers have a tough life.”
BLG’s admiralty business is a reflection of the health of the shipping business which is a reflection of the world economy which isn’t improving due to overcapacity and less cargo being shipped, according to Mr. Bolger. “Technology has also changed. There used to be two collisions a month or more, but no longer as people are better trained and there’s better technology. The incidence of claims is down because of improved technology and safety, but the value is way up, because when a problem arises, it’s not just a fender bender.”
One example occurred a few years ago when the Seaway bridge at Valleyfield failed to open and ships were stuck on either side. BLG represented a number of shipping companies, including CSL. Another incident involved a Paterson laker proceeding under another Seaway bridge when the bridge was mistakenly lowered onto the ship, resulting in the entire destruction of her superstructure causing an explosion, forcing the crew to abandon ship. “That ended the company as it was their last ship. We do considerably more commercial work than we have in the past. We are also involved to a much greater degree in mediation, because litigation is outrageously expensive.”
Most maritime lawyers learn on the job now as most universities, including McGill, offer little in the way of maritime law courses, Mr. Bolger noted. And very few lawyers practice maritime law full time as there is less work and a compression on rates. “If you can charge $350 an hour in maritime law compared to $800 as an M&A (mergers and acquisitions) lawyer, where are you going to go?” Mr. Bolger asks rhetorically.