Torts And The Conflict Of Laws
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb02711.x |
| Author | J. A. Clarence Smith |
| Published date | 01 September 1957 |
| Date | 01 September 1957 |
TORTS
AND
THE
CONFLICT
OF
LAWS
Mackinnon
v.
Iberia Shipping
Co.’
was an action by a Scots
engineer for personal injuries caused
him
on
board a vessel registered
at
a Scottish port, but at the time in the territorial waters of
the Dominican Republic. The court held that it could not grant
solatiurn
(meaning here general damages) if the Dominican courts
would make
no
such award; and also that the pursuer must aver
with particularity in his pleading
(if
it were the case) that
solatiurn
would have been given by Dominican law. This makes
it
not
inopportune to examine afresh the relevance of the place of com-
mission of a tort to its actionability-a task less baffling now that
there is -a breach
in
the unanimity of respectable opinion that it
is
“
elementary
common
sense
”
and
“
self-evident
”
that the law
of
that place “should be decisive.”s The breach is of course
Morris’s
article
on
(‘
The Proper Law of a Tort,” in which, however,
no
reason was suggested why one law was preferable to another.
SIDE-ISSUES
It
seems more prudent not
to
assume that the answer is the same
on
every aspect of tortious liability until each aspect has been
examined separately. English law, for example, is alone in classi-
fying
as torts infractions
not
only of rights common to all
men
as men but
also
of rights acquired by particular persons under
previous transactions. In the latter case the law of the infraction
operates only
if
there is a right to be infringed-and that depends
upon the law governing the acquisition of the right. Thus, as
Morris points out, in an action in detinue the question is always
the validity of the transaction under which either party claims
title
’:
the law of the place where the plaintiff demanded and was
refused may be relevant to the effect
of
the demand and refusal,
but not to the effect of the previous transfer. Similarly, it was
held in
Lister
v.
McAnulty
that
if
by the law of his domicile
(Massachusetts) at the time of marriage the plaintiff took by that
marriage
no
right to
his
wife’s services, he could not recover for
1955
S.L.T.
49.
Lord
Sorn
pointed out that this was not the same
as
the
solatiurn
claimed
by
a
relative
on
the victim’s death, but the case was argued
on
the assumption
that
it
was
a
separate cause of action and not merely
a
separate head of
damspea.
Chesh%e,
Private International Law,
4th ed., pp. 256 and 257. Compare
Wolff, 2nd ed., p. 485, and Sohmitthoff, 2nd ed., p. 144.
(1951)
64
Harvard
Law Review
881, foreshadow$ by a,,note in (1948)
12
M.L.R.
248,
which
in
this respect
was
considered absurd
by
Gow
in (1949)
65 L.Q.R. 313, 316,
The cases are too numerous
to
cite.
[1944]
3
D.L.R.
673 (appeal from Quebec).
447
448
THE
MODERN
LAW REVIEW
VOL.
20
the loss of those services merely because the law of the place
where she was harmed allows such an action. Similarly again,
in an earlier action in Quebec-Dupont v.
Quebec
S.
S.
Co.l-it
was
held that an action lay for loss of support under Lord Campbell’s
Act, the scene of the accident being an English vessel, but that
the English defence of common employment was not available, for
its
English explanation was an implied waiver by the employee
in his contract of service; and in that case the contract of service
was governed by the law of Quebec, which knew of
no
such
implication
.’
A second point to be distinguished from the main problem starts
with the decision of Lord Nottingham, the father of English private
international law, in
Blad’s
case.8 There an action was brought
against a Dane for seizing the goods of certain Englishmen traded
to Iceland. The Dane pleaded a monopoly of the Icelandic trade,
granted by the King of Denmark, and Lord Nottingham said that
“
whatever was law in Denmark would be law in England
in
this
case, and would be allowed as a very good justification
in
the
action”: there was, therefore,
no
need
for
the Privy Council
to
interfere in the action. From this may be drawn the principle that
a foreign Government’s authority to behave in a manner otherwise
tortious is a good defence to
a
claim founded
on
such behaviour,
if committed within the territorial jurisdiction of the licensing
power. This defence failed in four later English cases, but only
because it was
not
made
out,’O
and was again successful in
Dobree
v.
Napier
l1
and in
R.
v.
Leslie.12
In the latter case
it
was held
that wrongful imprisonment
on
a British vessel was
no
crime within
the waters of a foreign Government procuring
it,
though
it
became
a crime the moment those waters were exchanged for the high
seas. The three cases named above were the express-and the only
express-foundation for the second branch
of
Willes
J.’s
rule in
Phillips
v.
Eyre
that for the plaintiff to succeed in England
7
(1896: Review),
11
Q.R. 188.
Dissent from this part of the decision
was
adumbrated
in
Story
v.
Stratford
Mill Building
CO.
.(Ontario, 1913: App.), 30 O.L.R. 271; but that case
was
decided
on
the basis
not
of common
law
liability, but of the local Workmen’s
Compensation Act. Common employment was
also
raised
as
a defence in
Canadian National Steamships
Co.
v.
Watson
(Quebec, 1938: Can.) [1939]
S.C,R.
11:
it
was
there treated
as
B
matter for the
law
of the place of
accident, but
no
one argued for anything else.
(1673), quoted at
3
Swans.
603 from Lord Nottingham’s
MS.
lo
Comyn
v.
Sabine
(1737), quoted at
1
Cowp. 169;
Mostyn
v.
Fabrigas
(1774)
1
Cowp. 161;
Rafael
v.
Verelst
(1775-1776) 2 W.Bl. 983 and 1055;
Gollett
V.
Lord Keith
(1802) 2 East 260. Lord Mansfield said expressly in
Mostyn
v.
Fabrigas
(above) at p. 175, that “Whatever
is
a
justification in the place
where the thing is done, ought
to
be
a
justification where the cause
is
tried.”
l1
(1836) 3 Bing.N.C. 781.
la
(1860)
8
Cox C.C. 269.
(1870) L.R. 6
Q.B.
1, 29. Cockburn C.J. in the Queen’s Bench (1869)
L.R.
4
Q.B.
225,
240 and 241, had also founded himself
on
the two later cases and
nothing else.
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