NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00748.x |
| Published date | 01 June 1939 |
| Date | 01 June 1939 |
NOTES
OF
CASES
61
NOTES
OF
CASES
Private
International
Law
:
Contracts
English Private International Law has entered what future legal
historians may call one of
its
formative stages. The great decision of the
House of Lords in
R.
v.
International Trustee,
[I9371 A.C.
500,
and the
judgment of the Privy Council in
Mount Albert Borough Council
v.
Austra-
lasian Temperance Society,
[1938] A.C. 224, are milestones on the road
towards
a
systematisation of the rules of conflict of laws applying to
contracts. They are even surpassed in importance by the recent decision
of the Privy Council in
Vitu Food Products Inc.
v.
Unus Shipping
CO.
Ltd.
(in liquidation),
[1g3g]
I
All E.R. 513. This case
is
the greatest
contribution to clarity in this field which the Courts have made for
a
long time and
it
is
incidentally of outstanding commercial importance.
It
was
a
decision rendered by the Privy Council as the highest Court for
the Province of Nova Scotia. Yet, there can be no doubt that
it
has a
fundamental effect dn English Private International Law.
The
defendants were
a
company incorporated under the laws of Nova
Scotia. They were the owners
of
a
ship in which
a
cargo of herrings was
consigned from a Newfoundland port to the plaintiffs,
a
company incor-
porated in New York. The plaintiffs were
at
all material times the owners
of the cargo and holders of bills
of
lading issued on behalf of the defendants
in Newfoundland. They sued the defendants for damages on the ground
that the cargo had been injured in transit through the negligence of the
master. The bills of lading contained
a
clause relieving the shipowners
of
liability for loss due to the negligence of their servants. They also
contained
a
provision to the effect that they should be subject to the terms
and provisions of, and exemptions from liability contained in. the Canadian
Water Carriage of Goods Act, 1910, and specially incorporated
a
clause
of that Act which declared illegal, null and void any clauses exempting
shipowners from liability save in accordance with the provisions of the
Act. Finally, the bills of lading expressly provided that “this contract
shall be governed by English law.” In 1932. there came into force in
Newfoundland the Carriage
of
Goods by Sea Act, which embodies the Hague
Rules in
a
Schedule and
is
virtually identical with the English Carriage
of Goods
by
Sea Act, 1924.
S:3
of the Act, like the analogous section of
the English Act, provides that every bill of lading or similar document of
title issued in Newfoundland which contains a contract
to
which the Rules
apply shall contain an express statement that
it
is
to have effect subject
to the Rules. When the bills of lading were issued by the defendants’
representative he inadvertently used old bill forms which did not contain
the reference to the Hague Rules.
It
was
this
latter fact which gave rise to the dispute. The plaintiffs
contended
that
the bills of lading,
as
they did not comply with the provi-
sion in
s.
3
of the Newfoundland Act of 1932, were illegal according to
the law
of
Newfoundland, and that on this ground the exemption clause
in the bills could not operate in favour of the defendants. The Nova
Scotia Courts rejected this contention and gave judgment for the defen-
dants. The Judicial Committee affirmed the decision of the lower Courts.
The problem whether the bills were illegal by the law of Newfound-
land, i.e. the
lex loci contractus,
and,
if
so,
whether this illegality could
affect
a
contract, expressly subjected to English law, and now the object
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