CHAPTER IX. TORTS. PART III. CAP. IX. Torts THE question of the proper law applicable to an action based Jurisdiction. upon a tort committed abroad, and of the proper forum in which that law should be applied, has not arisen so frequently as the corresponding doubt with respect to contracts, but has nevertheless been the subject of late years of careful judicial consideration. It may be conveniently considered under three heads (i.) Jurisdiction with respect to torts, (ii.) the measure of the wrong done, (iii.) the measure of the remedy. foreign land. (i.) Jurisdiction with respect to Torts.-The formal distinction. between local and transitory actions, arising from the old rules as to venue, has been already sufficiently considered; (a) and it need only be remarked that it operated upon actions based on tort in exactly the same way as upon actions based on contracts. Thus an action for a trespass or other tort to foreign land Torts to was formerly excluded from the English courts, not on any principle of private international law, but ostensibly on the technical ground that it was absolutely necessary, for purposes of procedure, that the locality of the alleged grievance should be a country within English jurisdiction, where the action in question could be tried according to English law. This was first definitely held in Skinner v. East India Company, (b) so long ago as 1665; but the soundness of the rule was subsequently questioned by Lord Mansfield, (c) who took a distinction between actions which concerned the title to or possession of foreign immovables, and actions for personal damages for torts to those immovables. The full effect of the existing rules as to venue was not recognised in this expression of opinion, which was distinctly overruled in Doulson v. Matthews.(d) The lastmentioned case re-established the strict rule which prohibited the bringing of such an action in an English Court, but on the technical ground of the rules as to venue only. The abolition by the Judicature Act(e) of the rules as to Abolition of (b) Cited in Cowp. 16. (a) Ante, p. 343. (c) Mostyn v. Fabrigas, Cowp. 180. (d) 4 T. R. 503. (e) 38 & 39 Vict. c. 77; Order XXXVI. r. I. rules of renue. ACTS. CAP. IX. Torts PART III. local venue had the effect of re-opening the question. In the first case decided after this alteration in the law(a) the litigants had by agreement waived any objection to the jurisdiction of the Court that might otherwise have been taken, or the poin: Jurisdiction. would have directly arisen. The action was brought by an English company, who owned a pier in Spain, against an English shipowner for damage done to the pier by the vessel coming into collision with it. The pier was, of course, an integral portion of Spanish soil; and after laying down the general rule. that no action can be maintained in England for a wrongful act, unless it is wrongful both by English law and by the law of the place where it was committed, Mellish, L.J., proceeded as follows: "Whether the rule as to wrongful acts to immovabl property in a foreign country does not go still further, and prevent an action from being brought at all, is a question which it is not necessary to determine in this case; because, having regard to the consent of the parties and the agreement that has been come to, no objection to the jurisdiction could be taken." So it was said by James, L.J., in the same case, that had it not been for the agreement of the parties, very grave difficulties might have arisen as to the jurisdiction of the Court to entertain any action or proceedings whatever with respect to injuries done to foreign soil. The question in the most direct form was, however, raised in the case of British South Africa Company v. Compagnie de Mozambique(b) in 1893, when it was definitely decided by the House of Lords that no action was maintainable in this country for a tort to foreign land, and that, although the domicil of the defendant company was English, and it was alleged that no competent tribunal existed in the situs. The distinction drawn by Lord Mansfield in Mostyn v. Fabrigas was rejected. The then existing authorities are so fully examined in the judgments that it is unnecessary to repeat them here. It is now conclusively settled that the English courts will decline to entertain an action for injury to foreign immovables, not upon any technical rule peculiar to this country, but upon the ground of the absence of the jurisdiction. The same rule seems to be accepted in the jurisprudence of the United States(c).. Personal torts. The question of the jurisdiction of English Courts to try actions based on torts to foreign immovables, formerly regarded as depending upon the history of the law as to venue, has thus been now placed upon broader principles. Personal torts, (b) 1893. A. C. 502. (c) Story, Conflict of Laws, §§ 551-554. See ante, pp. 197–200. (a) The M. Morham, L. R. 1 P. D. 107. ACTS. CAP. IX. Torts which were transitory and not local in their nature, were of PART III. course not affected by the old restriction. There was at one time, however, another cause which might be regarded as limiting the jurisdiction with respect to certain personal trespasses, as assault. In the form of declaration for assault Jurisdiction. which was in use before the Common Law Procedure Act, 1852, The King's the assault required to be laid and proved contrà pacem regis ; peace. a condition which of course could not be strictly complied with if it had taken place without the jurisdiction; and Lord Mansfield expressed a doubt whether this would not exclude the competency of the English Courts to try such cases at all(a). So far as this doubt was a technical one, based on the necessities of English procedure, it has of course been removed; nor does it in fact seem to have had any foundation in international principles. "The right of all persons," said Selwyn, L.J., "whether British subjects or aliens, to sue in the English courts for damages in respect of torts committed in foreign countries, has long since been established, and . . . . there seems to be no reason why aliens should not sue in England for personal injuries done to them by other aliens abroad, when such injuries are actionable both by the law of England and also by that of the country where they are committed; and the impression which had prevailed to the contrary seems to be erroneous."(b) Deferring for the present the subject of the measure of the wrong done, or of the remedy available, the question of jurisdiction seems to be put beyond all reasonable doubt; and it may therefore be assumed that an English Court has a right to entertain all actions for personal wrongs, wherever and by whomsoever committed, (e) without any breach either of the comity of nations or the technical requirements of English law. The act complained of, however, must be actionable by English law, and wrongful (or not justifiable) by the law of the place where it was committed.(d) It need not, according to the case last cited (Machado v. Fontes), be actionable by the law of the place where it was committed; but it must be an act which would not be authorised, justified, or excused there. It is true that Selwyn, L.J. (in The Halley), uses the word "actionable" with regard to both laws; but this point was not material to the case before him, and, in any event, the decision of the (a) Mostyn v. Fabrigas, 1 Sm. L. C. 600, 658; S. C. Cowp. 161. (b) The Halley, L. R. 2 P. C. 193, 202; The Amalia, 1 Moo. P. C. N. S. 484. Except, of course, torts done, authorised, or sanctioned by a sovereign Power: Buron v. Denman, 2 Ex. 167; ante, p. 165. (d) Carr v. Francis Times & Co. (1902), A. C. 176. Phillips v. Eyre, L. R. 6 Q. B. Machado v. Fontes, 1897, 2 Q. B. 231; 66 L. J. Q. B. 542. I, 28. ACTS. CAP. IX. PART III. Court of Appeal in Machado v. Fontes puts the matter beyond doubt. It would seem logically to follow, that any defence to an action for tort, if good in the country where the tort was committed, would be good also in the courts of any other country. (See post, p. 488.) Torts- Service out of the juris diction With respect to the high seas, it would appear that, originally and independently of statute, the English Court of Admiralty exercised jurisdiction over all torts on the high seas.(a) And for the purposes of jurisdiction, it would seem that there is no distinction between the high seas and other waters or harbours "where great ships lie and hover,"(b) though the last class of cases seems confined to wrongs (whether viewed as crimes or torts) committed on board British ships, regarded as "floating islands" But the Admiralty Court (now the Probate, Divorce, and Admiralty Division) has not jurisdiction to entertain an action in rem for damages for loss of life under Lord Campbell's Act (9 & 10 Vict. c. 93), that jurisdiction not being transferred to the Court by 24 Vict. c. 10.(c) It has been already shown, when dealing with contracts, that the question of service out of the jurisdiction is entirely when allowed. regulated by Order XI. r. I, of the Supreme Court Rules, which is intended by the Legislature as a complete code on the subject.(d) In actions for tort, the only jurisdiction to order service of writ or notice of writ abroad is in cases falling within Order XI. (R.S.C.) 1 (a), (c), (f), (g).(e) These sub-clauses are as follows: 1. Service out of the jurisdiction of a writ of summons, or notice (ƒ) of a writ of summons, may be allowed by the Court or a judge, whenever (a) The whole subject-matter of the action is land, situate within the jurisdiction (with or without rents or profits); or (a) The Valant (1842), 1 W. Rob. 383; The Lagan or Mimar (1838), 3 Hagg. Adm. 418; The Hercules (1819), 2 Dod. 353; The Ruckers (1801), 4 C. Rob. 73 De Lorio v. Boit, 2 Gallison, 398 (Am.). In the last-cited case it was said by Story, J., that the English Court of Admiralty had jurisdiction over all torts committed on the high seas, and in harbours within the ebb and flow of the tide, quoting the Black Book (temp. circa Edward III.). (b) Reg. v. Carr, 10 Q. B. D. 76; Reg. v. Anderson, L. R. 1 C. C. R. 161, 167; Reg. v. Allen, 1 Moo. C. C. 494; Reg. v. Jemot, cited in Reg. v. Anderson, p. 168. (c) The Vera Cruz (2), 9 P. D. 96; 10 App. Cas. 59. (d) Re Eager, 22 Ch. D. 87. (e) Lenders v. Anderson, 12 Q. B. D. 50; Field v. Bennett, 1 T. L. R. 374; 56 L. J. Q. B. 89; Croft v. King (1893), 1 Q. B. 419; Williams v. Cartwright (1895), I Q. B. 419. It is insufficient that damages have been sustained within the jurisdiction (Shearman v. Findlay, 32 W. R. 122). (f) By Order XI. r. 6, notice of the writ can be served when the defendant is neither a British subject nor in British dominions. (c) Any relief is sought against any person domiciled or ordinarily resident within the jurisdiction (see ante, p. 331); or (f) Any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or (g) Where any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction. Under (f) leave for service abroad has been granted where an injunction was sought to restrain the defendant from publishing a libel within the jurisdiction.(a) Under (g) the test appears to be whether the action would. reasonably and properly have been brought against the defendants jointly at the time the writ was issued; and not whether there is in fact a good cause of action against both.(b) PART III. CAP. IX. TortsNature. actionable (ii.) Measure of the wrong done.-The English Court, having jurisdiction to entertain in the first instance any claim in respect of an alleged foreign tort, has next to ascertain whether the act complained of was in fact unlawful. By what law is it to be guided in so doing?--the law of the country where the act was committed, or that of England, where the remedy is sought? The answer to this has already indirectly been given. The action complained of must have been a legal Tort must be wrong both by the law of the place where it was done, and by by lex fori the law of England, where the action for damages is brought. and wrongful by lea loci. As a general rule," said Willes, J., delivering the judgment of the Court of Exchequer Chamber in Phillips v. Eyre,(c) "in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England; therefore, in The Halley,(d) the Judicial Committee pronounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot whom the shipowner was compelled by that law to employ, and for whom, therefore, as not being his agent, he was not respon (a) Tozier v. Hawkins, 15 Q. B. D. 680. Cf. Bree v. Marescaux, 7 Q. B. D. 434. (b) Witted v. Galbraith (1893), 1 Q. B. 431 ; S. C. on appeal, ibid., p. 577; notwithstanding the earlier case of Yorkshire Tannery Co. v. Eglinton (33 W. R. 162). (c) L. R. 6 Q. B. 1, 28. (d) L. R. 2 P. C. 193. |