Mackinnon v Iberia Shipping Company
| Jurisdiction | Scotland |
| Judgment Date | 26 October 1954 |
| Docket Number | No. 4. |
| Date | 26 October 1954 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Migdale.
International LawDelictReparationBritish ship registered in Scottish portInjury to member of crew while ship in foreign, territorial watersAction of damages in Scotland against ownersClaim for solatiumLex loci delictiLex foriMerchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), sec. 265.
The Merchant Shipping Act, 1894, enacts;Sec. 265. "Where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws, then, if there is in this Part of this Act any provision on the subject which is hereby expressly made to extend to that ship, the case shall be governed by that provision; but if there is no such provision, the case shall be governed by the law of the port at which the ship is registered."
While a British ship, registered in a Scottish port, was lying at anchor in the territorial waters of a foreign country, one of the ship's engineers in the course of his employment received injuries by accident which he attributed to the negligence of the owners or of a fireman for whom they were responsible. In an action of damages against the owners, brought in Scotland, he claimed solatium as well as damages for patrimonial loss. The defenders having averred that the rights of parties fell to be regulated by the law of the foreign country and that that law did not admit a claim for solatium, the pursuer contended that, both at common law and under sec. 265, the law to be applied was the law of Scotland.
Held that, although the events in question were entirely internal to the ship, the ship's presence within foreign territorial waters involved that the locus delicti was the foreign country; that sec. 265 was inapplicable to a claim, such as the pursuer's, for damages at common law; and that accordingly, following M'Elroy v. M'Allister, 1949 S. C. 110, the pursuer's claim for solatium could only succeed if such a claim was admitted by the foreign law as well as by the law of Scotland.
Owners of S.S. "Reresby" v. Owners of S.S. "CobetasUNK," 1923 S.L.T. 719, disapproved.
Alexander Mackinnon brought an action against his employers, the Iberia Shipping Company, Limited, in which he claimed damages for personal injuries.
The following summary of the parties' contentions is taken from the opinion of the Lord Ordinary:"Alexander MacKinnon, the pursuer in this action, was an engineer on board S.S. Baron Ramsay, a vessel belonging to the defenders, on 23rd February 1951, when he met with an accident. The S.S. Baron Ramsay was then lying at anchor in an open roadstead off San Pedro de Macoris in the Dominican Republic. The pursuer says that the accident was due (firstly) to the fact that the defenders provided him with a faulty and ill-fitting spanner and (secondly) that a fireman, who was a fellow servant, handled a heavy hammer in a negligent manner and hit the pursuer on his right hand, causing serious injury. The pursuer claims 5000 as damages and avers that he has lost parts of the fourth and fifth fingers of his right hand, which were amputated in San Pedro de Macoris.
"The only question raised at this stage is whether the defenders' liability falls to be measured only by the law of Scotlandthe S.S. Baron Ramsay is registered at a Scottish portor whether the pursuer, in order to sue in the Scottish Courts, must also show that he could sue for his damages under the law of San Domingo, which is the law applicable to the locality where the accident took place. It was conceded that the ship was then lying at anchor within the territorial waters of the Republic of San Domingo. The defenders contend that, in order to pursue this action, the pursuer must show that his claim is actionable by Scots law and also by the law of San Domingo. It was conceded that both systems of law would allow an action for patrimonial loss; but the pursuer also claims solatium and the defenders say that the law of San Domingo does not recognise a claim for solatium. The pursuer, on the other hand, says that the only law applicable to this claim is the law of Scotland, which is the law of the port of registration, and that the law of San Domingo does not enter into the question. In any event, he says, the wrong complained of is actionable by the law of the Dominican Republic. He does not state that that law recognises a claim for solatium. In answer 6 the defenders state specifically that the rights of parties fall to be regulated by the law of San Domingo and that that law does not admit a claim for solatium as distinct from patrimonial loss.
"Counsel for the defenders contended that, to be actionable, the pursuer must aver that his claim was actionable both by the law of Scotland and by the law of San Domingo. They further contended that the pursuer would require to aver in much greater detail than he has done how the law of San Domingo entitled him to claim a sum of money in name of solatium as distinct from patrimonial loss."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant and lacking in specification et separatim insufficient in law to support the conclusions of the summons, the action should be dismissed."
On 5th April 1954, after a Procedure Roll discussion, the Lord Ordinary (Migdale) sustained the defenders' plea to the relevancy, so far as relating to the claim for damages based on solatium, and quoad ultra allowed a proof.
At advising on 26th October 1954,
LORD CARMONT.The pursuer raised an action claiming reparation for personal injuries sustained by him on board the defenders' vessel, the "Baron Ramsay," having Glasgow as its port of registry. He
claims in respect of patrimonial loss and for solatium. It was at first denied, but it is now conceded, that at the time of the occurrence the vessel was at anchor within the territorial waters of the State of San DomingoThe defenders have stated a plea to the relevance of the pursuer's averments, and they support it on the ground of the absence of averment of the law of San Domingo as to the scope of an injured employee's rights in reparation. The defenders are prepared to concede, by implication, that the Dominican law entitles employees to reparation for patrimonial loss, but they say that it does not permit of any award on the basis of solatium.
The pursuer maintains that in the circumstances he is not concerned with the Dominican law, and does not need to discuss what it is, for two reasons: (First) because the locus of the quasi-deliet in question in this case was the ship, which was not subject to the law of San Domingo; and (Second) because of the provisions of section 265 of the Merchant Shipping Act, 1894.1
The Lord Ordinary heard the case in Procedure Roll, and decided that there was no substance in the argument based on the Merchant Shipping Act, and that on the other branch of the case the pursuer was entitled to a proof of his averments, but excluding any claim for damages based on solatium.
The pursuer has reclaimed, and we heard an interesting argument in support of both branches of the case. Mr Kissen contended that, as the vessel was only at anchor within the Dominican waters, thelocus of the quasi-delici was "the ship" and that the law of its flag Scots lawapplied. Accordingly, as the law of the flag and the law of this forumcoincided, no heed need be paid to Dominican law, and the pursuer was therefore justified in making no mention of it in his pleadings. The argument was presented in two aspects: (1) that a ship within territorial waters of a foreign country did not lose the benefit of the law of its flag merely by being anchored off the coast of the littoral country; and (2) that, in any event, so long as the events complained of in an action were entirely internal to the vessel, as in the present case, there was nothing to support the view that the locus of the occurrence was the littoral territory, whatever its extent or extension.
There is much to be said for both branches of the pursuer's argument as to locus from a practical and common-sense point of view. If the occurrence giving rise to the present case had happened when the vessel was four miles off the San Domingo coast, the law of the flag would have applied, and it would not have been of any moment whether the vessel was at anchor or not. It may seem strange that a vessel proceeding along the coast of a continent, but allowing her course to bring her within three miles of the coast, should find the same occurrences as are averred in this case treated as having taken
place within the territory of the littoral State which the vessel was passing at the time. That was the contention of the defenders, and they put no emphasis on the fact of anchoring. It was enough, they said, that the vessel could be shown to bealbeit by calculations made ex post factoin the waters accorded by international law to the littoral State as part of the State's territory and subject to its law. The difficulty of telling in certain cases where the vessel is, at the time an event takes place, was not blinked by the defenders; and it is, indeed, obvious that there is a certain aspect of absurdity present when the instance is taken of a ship coasting along, close to several countries in succession, while an internal repair operation is going on. The owners would find themselves liable to investigate that internal episode, resulting in an employee's injury, from the standpoint of the law of several countries that were being passed in succession. An episode in an airplane suggests even greater absurdities. I am unable, however, to find any real support for the pursuer's contention that mere passing along within territorial waters does not displace the law of the flag, or that something more intimate, if I may so phrase it, than anchoring is necessary to vouch presence within a State. But even a ship moored to a quay in a foreign harbour has little real connection with the law of the...To continue reading
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