Torts in Private international law

The law of tort is treated under private international law as in a similar way like contracts. But the mode of application is different.

1. CONFLICT OF LAWS TORTS IN PRIVATE INTERNATIONAL LAW BY ADV. CAROLINE ELIAS

2. DIFFERENT THEORIES REGARDING TORTS When an action is brought upon a tort committed in a foreign country, the question arises as to which law should govern the liabilities of the parties. There are three main theories in regard:- (1) Theory of lex fo ri (2) Theory of lex loci delicti commissi (3) Theory of proper law of tort (1) Law of the Forum The theory that liability in tort should be governed by lex fori is of German origin. The fundamental defect of the theory is that a defendant would be held responsible if his act is actionable according to the lex fori, although it is quite innocent according to the law of the country where the act was committed. So parties may choose most favourable law / forum-shopping.

3. (2) Lex loci delicti commissi According to this theory the liability for tort is governed by the law of the place where the tort was committed. It would be natural that the law of a country where the injurious act was committed should govern liabilities. Obviously any country has a legitimate and real concern with the commission of torts within its borders. Sometimes the locus delicti may be ambiguous as where the act may take place in one country, but harm may be caused in another country. E.g.:- an aircraft disintegrating in flight due to something done when it was over another country; a company manufacturing toxic substances – instances of gas leakage to the neighboring nations locality etc.

4. (3) The Proper law of tort Dissatisfaction with both the theories of lex fori and lex loci delicti has resulted in the formulation of a third theory, namely, the theory of the proper law of tort. Proper law of tort is that law with which the act complained of has most significant connection. The proper law theory would provide a much needed flexibility and enable a decision taking into consideration the social factors involved. In Badcock v. Jackson , decided by a New York Court. The plaintiff was a gratuitous passenger in the defendants motor car. They were both domiciled in the state of New York and were going on a weekend trip to Canada. The car was licensed and insured in the New york state from where the journey was begun. The plaintiff was injured in the State of Ontario due to the -

5. - negligence of the defendant. According to Law of Ontario, the drivers have no liability towards gratuitous passengers , but there was no such exemption according to the law of New York. The New York Court did not apply the Ontario law, the lex loci delicti , but preferred the New York law because the facts and circumstances were most closely connected with the New York state. This American case adopted the theory of proper law. But in some areas this doctrine has been criticised as it may result in different results / unfavourable results.

6. RULE OF DOUBLE ACTIONABILITY The lex loci delicti commissi refers to the place where the tortious act has been committed. In Philips v. Eyre , it was opined that, “the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law. As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. 1 st , the wrong must be of such a character that it would have been actionable if committed in England. 2ndly, the act must not have been justifiable by the law of the place where it was done”.

7. Philips v. Eyre [(1870) LR 6 QB 1, 28-9 (Willes J)] The case formed an important part of the development of the law of tort with regard to foreign torts. In this case Edward John Eyre, then Governor of Jamaica, suppressed a rebellion in Morant Bay in October 1865. A royal assent had been given to an Act of indemnity passed by the Jamaican legislature to indemnify the colony’s Governor against any claims concerning his brutal suppression of a revolt (after proclaiming martial law) The Court heard the case as one concerning the power of a colonial legislature to remove a right of action against the Governor of the colony, in England. The judge opined that where by the law of another country an act complained of is lawful, such act, though it would have been wrongful according to the law of the forum were it to be committed there, cannot be made the ground of an action in an English Court.

8. The above case has been taken in the subsequent cases to mean that in every action brought in England upon a foreign tort, the plaintiff must prove that the defendant has violated the law of locus delicti and the law of England. This is also known as the rule of double actionability. The difficulty in the application of this theory arises in those cases where the facts constituting the tortious act happen to be located in more than one region. The 3 possible solutions are : - (1) The governing law should be of the place where the act commenced which constituted the tort . (but it fails for cases like defamation / libel / defamatory letters) (2) The tort may be deemed to be complete in the country where the law is most favourable to the plaintiff ( but it causes forum shopping)

9. (3) The tort is completed in the country where the harm ensures . The harm to reputation caused from torts like defamation cannot be localized at one place except by resorting to fiction, making it impossible to measure the harm in any one place as the harm might be spread across countries. In Bata v. Bata [1948] WN 366 The Court of Appeal held that where defamatory letters had been written in Switzerland, but published in England, the tort was committed in England. This was because publication was the essential element of the tort of libel. Hence the place of publication would be treated as the place where the tort was committed.

10. In Monroe George Ltd. V. American Cyanamid and Chemical Corporation [1944]KB 432; [1944] 1 All ER 386 In this case the Court of appeal laid down the test as being: “ Where was the wrongful act, from which the damage flows, in fact done ?” The question was not where the damage was suffered, even though damage might have been the gist of the action. In this case, it was held that the wrongful act was done in New York, where the goods were negligently manufactured, and not in England, where they caused injury and damage to a farmer who used them on his land.

11. In Distillers Co. (Bio-chemicals) Ltd. V. Thompson [(1971) 1 All ER 694] In this case, the Privy council modified the test by addressing the question of: “where in substance did the cause of action arise?” The case concerned a drug, which was manufactured in England and marketed in South Wales, Australia. The exporting company neither warned the importing company nor put a warning on the drug disclosing the risks involved when taken by pregnant women in the early weeks of pregnancy. The plaintiff’s mother purchased the drug in Australia, where she consumed it whilst pregnant. This resulted in the baby being born with physical deformities. An action was brought in the Australian court. On appeal to the Privy council, the substance test was applied and it was held that the tort was committed in Australia.

12. Unlike the Monroe’s case, where the tort consisted of negligent manufacture in New York, here ( in Distillers cas e ) the tort consisted of negligent failure to give adequate warnings as to the drug’s harmful side effects in Australia, where it was marketed . So the above given cases laws shows the different effects of application of lex loci delicti commissi. Proper Law / Social Environment Theory : On the analogy of proper law of contract, the social environment theory is propagated. Jurist Morris has firstly mentioned about applying proper law theory with regard to the tort, so that the best law can be chosen, which on policy grounds, seems to have the most significant connection with the chain of facts and circumstances in the particular situation before court.

13. In Boys v. Chaplin [(1938) 1 K.B.673] The plaintiff and defendant were both resident in England, but temporarily stationed in Malta in the British armed forces. While both were off duty, the plaintiff was seriously injured in a road accident as a result of the defendant’s negligent driving. Under the law of Malta, the plaintiff could only recover special damages for his expenses and proved loss of earnings. Under English law, however, he could also recover general damages for pain and suffering. The House of Lords unanimously held that the plaintiff should recover damages assessed according to English law. i.e., in matters of foreign torts, the courts should apply proper law, the law of the country with which the parties and the act done have the most significant connection. However this principle has got many criticisms, as nations/ courts hearing the cases may not agree to admit the intended/ chosen law/ most connected law.

14. MARITIME TORTS : Maritime torts refer to those torts that are committed on high seas. Such acts fall under 2 categories :- (1) Acts confined to a single ship . E.g.:- assault by a crew member; tortious acts by either crew member or passengers. Mostly such cases are being settled according to the flag state / registered state. (2) Acts those are external to a ship :- E.g.:- negligent act resulting in collusion with other ship; negligent navigation resulting in damages to submarines; fishing boats issue etc. – usually these issues will be dealt by admiralty courts/ High courts of concerned states. Issue is dealt under international law only when the case is having relation with general maritime law. Only then it is actionable under English common law also.

15. AERIAL TORTS : Aerial torts include tortious acts committed on board an aircraft and damage to life and property on account of crashing of aircrafts or collision between aircrafts in the air. The principles used by some nations include lex loci de licti & law of registry of aircrafts. But now the matter more governed by international conventions.