NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00755.x |
| Date | 01 October 1939 |
| Published date | 01 October 1939 |
NOTES
OF
CASES
IS7
NOTES
OF
CASES
Tort
Committed
on
British
Ships
on
the High Seas
Canadian National Steamship Co.
v.
Watson,
[I9391
I
D.L.R.
273,
is
a
decision of the Supreme Court of Canada (on appeal from the Quebec
Court of King’s Bench, Appeal Side
:
64
Que. K.B.
I
I)
which is worthy of
attention from English lawyers
at
a time when the International Maritime
Committee has under consideration the question of torts committed on
the high seas. The action was by
a
seaman (the respondent) against his
employers, the owners of the British ship registered
at
Vancouver, British
Columbia, on which the plaintiff was serving when he was injured through
the negligence of
a
fellow servant. At the time of the accident the ship
was on the high seas.
The well-known dicta of Lord Macnaghten in
carr
v.
Fracis
Times
6.
Co.,
[1902]
A.C.
176, 186,
and of Willes,
J.,
in
Phillips
v.
Eyre,
L.R.
6
Q.B.
I,
28,
express the law of the Province of Quebec, the
lex
fori
in the
case noted, applicable to an action for damages in respect of personal
injuries due to
a
tortious act committed outside that Province
:
O’Connor
v.
Wruy,
[1g30]
2
D.L.R.
899.
It
is therefore essential that the plaintiff
prove an act or default actionable by the law of Quebec and “not justi-
fiable” by the
lex
loci
delicli.
The Chief Justice of Canada, delivering the
judgment of himself, Crocket, Kerwin, and Hudson,
J
J.. said that
”
jnsti-
fiable” here refers to legal justification, and an act or neglect which is
neither actionable nor punishable cannot be said to be otherwise than
“justifiable” within the meaning
of
the rule
:
see
Walpole
v.
Canadian
Northern Railway Co.
(rgzz),
70
D.L.R.
201,
205,
[I9231
A.C.
113.
119.
While it is part of the plaintiff’s case to establish that the tort charged
is non-justifiable by the
lex loci delicti
in the sense mentioned, he
is
entitled
to call in aid the presumption of law that the general law of the place
where the alleged wrongful act occurred is the same
as
the
lex
fovi.
If
the
defendant pleads as
a
defence some difference between the law of the
locality and the law of the forum the onus is upon him to prove it.
Among other defences, the appellants pleaded that as the ship was
British the law governing their liability for acts done by officers and crew
on board the ship was the English Common Law, by which they were
under no liability because of the doctrine of common employment. That
doctrine is not part of the law of Quebec.
The respondent contended that the case was governed by
s.
265
of the
Merchant Shipping Act,
1894,
which
is
in force in Quebec. That section
provides that 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 the
Second Part of the Act any provision on the subject which is thereby
expressly made to extend to that ship, the case is to be governed by that
provision; but
if
there is no such provision, the case is to be governed by
the law of the port of registry. The Chief Justice of the Quebec Superior
Court held that the section applied, that the law applicable was therefore
the law of British Columbia, and that, as the law of British Columbia was
neither pleaded nor proved, he was bound to give judgment on the assump-
tion that the law of that Province is the same
as
the law
of
Quebec.
Consequently the doctrine of common employment, which in fact is con-
tained in the law of British Columbia, afforded no defence to the action.
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