ACTS. Torts- PART III. sible by English law. Secondly, the act must not have been justifiable by the law of the place where it was done." So it CAP. IX. is said by Mellish, L.J., in the case of The M. Moxham(a): “The law respecting personal injuries and respecting wrongs to personal property appears to me to be perfectly settled that no action can be maintained in the courts of this country on account of a wrongful act either to a person, or to personal property, committed within the jurisdiction of a foreign country, unless the act is wrongful by the law of the country where it is committed, and also wrongful by the law of this country." The principle was followed to its full extent in Carr v. Francis Times & Co., (b) when it was held by the House of Lords that no action could be maintained for the seizure of British goods on board a British ship within the territorial waters of Muscat, under a proclamation issued by the Sultan of that State, and expressly declared by the same sovereign to have been lawful. But though it is necessary that the alleged tort should be actionable by English law, and wrongful by the law of the place where it was committed, it is not necessary that it should be actionable there. In other words, the remedy there need not be civil, in order to give a civil remedy in England. It is sufficient that it should be not justifiable or excusable there.(c) It would seem logically to follow that any defence which would be valid in the country where the alleged tort was committed ought to be recognised here. This would appear to be so, even when the act has been legalised by ex post facto legislation; but contrà, where the lex loci only required that criminal proceedings should be taken and concluded before an action for damages was brought.(d) In Blad's Case,(e) Lord Nottingham held that a seizure in Iceland, authorised by the Danish Government and valid by the law of the place, could not be questioned by civil action in England, although the plaintiff, an Englishman, insisted that the seizure was in violation of a treaty between this country and Denmark-a matter for remonstrance between the Governments, not for litigation between the subjects. In Dobree v. Napier,(f) Admiral Napier having, when in the service of the Queen of Portugal, (a) L. R. 1 P. D. 107, at p. 111. (b) Carr v. Francis Times & Co. (1902), A. C. 176. (c) Machado v. Fontes (1897), 2 Q. B. 231; 66 L. J. Q. B. 542. (f. per Wightman, J., in Scott v. Seymour, 1 H. & C. 219. (d) Scott v. Seymour, 31 L. J. Ex. 457; 32 L. J. Ex. 61; 1 H. & C. 219. (e) 3 Swan. 603; Blad v. Bamfield, ibid., 604. (ƒ) 2 Bing. N. C. 781. ACTS. CAP. IX. Torts Nature. captured in Portuguese waters an English ship breaking PART III. blockade, was held to be civilly justified, by the law of Portugal and the law of nations, though his serving a foreign prince was contrary to English law, and subjected him to penalties under the Foreign Enlistment Act. So it was held that the master of an English vessel, indicted for an assault and false imprisonment, who had contracted with the Chilian Government to carry certain banished prisoners from Chili to Liverpool, and had in fact done so, after receiving and imprisoning the prisoners at Chili, could justify his acts under the authority of the Chilian Government in respect of all that had taken place within the local jurisdiction of Chili, but not in respect of the continued imprisonment when the ship had passed out of Chilian waters.(a) This was a case of criminal indictment, but the reasons of the decision would, of course, have been equally applicable to a civil action for false imprisonment or trespass to the person. "We assume," said Erle, C.J., “that the Chilian Government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the Government and under its authority." In Phillips v. Eyre,(b) the last decision of importance on the subject, the defendant pleaded, to an action for false imprisonment and assault in the island of Jamaica, that since the grievances complained of a retrospective Act of indemnity had been passed by the Legislature of Jamaica, and it was held that this was a sufficient answer to the action; although the defendant was at the time the Governor of Jamaica, and had assented to the passing of the Act, which could not have become law without his sanction. This case was decided upon demurrer; but in the leading case of Mostyn v. Fabrigas,(c) where an action was brought against the Governor of Minorca for a similar trespass, the justification pleaded by the defendant, that he had acted under the law of the island and solely in his official capacity, was negatived by the jury, and the question of the extraterritorial operation of the local law did not therefore arise. It was, however, accorded an implied recognition by the Privy Council in Hart v. Gumpach.(d) In that case an action was brought, in the British Supreme Court for China and Japan, for false and fraudulent representations made by the defendant, (a) R. v. Lesley, 29 L. J. M. C. 97 ; Bell, C. C. 220. (b) L. R. 6 Q. B. 1; S. C. L. R. 4 Q. B. 225; see The Halley, L. R. 2 P. C. 193, referred to by Willes, J., in his judgment cited above. (c) Cowp. 161; 1 Sm. L. C. 658. (d) L. R. 4 P. C. 439, 463. ACTS. CAP. IX. TortsRemedy. PART III. Occupying an official post in the service of the Emperor of China, to the principal of the Foreign Board at Peking, respecting the conduct of the plaintiff as a professor in the college established there, which led to his dismissal by that Board. In ordering a new trial on the ground of misdirection, it was said that, if it were shown that, by the law and customs of China, officers in the service of the Government were absolutely protected in making reports concerning their subordinates, and that it was against the policy of that Empire to allow them to be questioned by any Court, it might be proper to hold that it would be contrary to the comity of nations. and therefore contrary to public policy in the eyes of an English Court, to allow a British subject, who had voluntarily entered into the service of the Chinese Government, to maintain any action for the representations in question. Tort within jurisdiction. When the act complained of takes place in a locality over no municipal which no municipal law extends, so as to be competent to decide its wrongful or innocent nature, it would seem (a) that the lex fori must necessarily be followed, in the absence of any other with authority to speak. Thus, in an action by a submarine telegraph company against the foreign owners of a ship, for negligence and want of proper carc in navigating their ship, whereby the cable of the plaintiffs, stretching from Dover to Calais, was damaged by the defendants' anchor, it was apparently assumed that the law of England was the proper measure of the negligence complained of, and of its actionable character, whether the injury was done to the cable within or without the limit of three miles from the English shore.(b) It could not, of course, be contended that the English Court had no jurisdiction to try an action for personal damages, whatever the locality of the factum, on the principles already explained; and it did not appear that any law could be invoked to measure a tort committed on the high seas, or (in this case) on the soil at the bottom of the high seas, but the law of the forum in which the action was brought. Torts in the nature of collisions between vessels on the high seas are within the original jurisdiction of the High Court of Admiralty, whatever (a) Story suggests (§ 423) that, with respect to such torts as these, each nation would either apply its own law (i.e. the lex fori), or would apply the same law that the nation to which the tort feasor belonged would apply if the circumstances were reversed, following the rule of reciprocity. See The Girolamo, 3 Hagg. Ad. 169. (b) Submarine Telegraph Co. v. Dickson, 15 C. B. N. S. 759. As to the three-mile zone, see R. v. Keyn, L. R. 2 Ex. D. 63, and the Territorial Waters Jurisdiction Act, 1878. In the case cited in the text it was alleged that the cable was lying in the high seas within the three-mile zone by virtue of a charter from the Crown. the nationality of the parties, though it may be that the Court has a discretion whether or not it will interfere between litigants who are both the domiciled subjects of a foreign State; (a) and by modern statutes, the same Court has been given jurisdiction over any claim for damage done by any vessel, whether to another vessel or to person or property in some other form. (b) These latter torts also were originally within the jurisdiction of the Admiralty Court, according to Sir R. Phillimore in The Sylph,(e) in which case the statutory jurisdiction just referred to was held to include the case of damage inflicted by a steamer on the River Mersey upon a diver during his employment at the bottom. The same jurisdiction had been already applied to a cause of damage against a ship for injury to a breakwater.(d) It is perhaps superfluous to repeat that in such a case, if the breakwater injured were an integral part of the soil of a foreign State, the question of jurisdiction will arise in a more serious form.(e) PART III. CAP. IX. Torts Remedy. governed by (iii) Measure of the Remedy.-The general rule will be Remedies stated in its proper place,(f) that all questions of remedy or er fori. procedure belong to the lex fori; and the theory of the remedy available in case of tort is, of course, no exception to the general rule. "As to foreign laws," says Willes, J., "which affect the liability of parties in respect of bygone transactions, the law is clear that if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action. in this country; but if the foreign law extinguishes the right, it is a bar in this country equally as if the extinguishment had been by a release of the party, or an Act of our own Legislature."(g) The question, in fact, is always whether the foreign law goes to the nature of the right, the essence of the obligation, or whether it only affects the manner in which the right is to be enforced, or the obligation dissolved. If the latter is its true construction, it has no operation except in its own tribunals; if the former, its decision must be respected by all Courts alike. In the words of Willes, J., which have been already cited, "the civil liability arising out of a wrong derives its birth from the law of the place, and its character is deter (a) Per Sir R. Phillimore, in The Mali Ivo, L. R. 2 A. & E. 356. (b) 24 Vict. c. 10, s. 7; 3 & 4 Vict. c. 65. (c) L. R. 2 A. & E. 24. The law on this branch of the subject is exhaustively collected by Story in De Lorio v. Boit, 2 Gallison, 398. (d) The Uhla, cited in note, L. R. 2 A. & E. 29. (e) The M. Morhum, L. R. 1 P. D. 107. See ante, p. 484. (f) Infrà, Chap. X. (g) In Phillips v. Eyre, L. R. 6 Q. B. 29. ACTS. CAP. IX. PART III. mined by that law. Therefore, an act committed abroad, if valid and unquestionable by the law of the place, cannot, so far as civil liability is concerned, be drawn in question elsewhere, unless by force of some distinct exceptional legislation, superadding a liability other than and beside that incident to the act itself."(a) But if the law of the place make cannot create the act in question an actionable wrong, it is actionable in liability. English courts according to the English law and method of TortsRemedy. Lex fori procedure. It can scarcely be said that the distinction between (a) In Phillips v. Eyre, L. R. 6 Q. B. 29, p. 28. (d) Per Blackburn, J., ibid., 237. |