Tetley (2002) introduction to conflict of laws 5
A CANADIAN LOOKS AT AMERICAN CONFLICTS OF LAW
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- CANADIAN CONSTITUTIONAL LAW CONFLICT OF LAW
- LAW OF THE PERSON/LAW OF THE FLAG
- The Authorities on Law of the Flag
- Guiding Jurisprudence on the Law of the Flag
- Romero v. ITO (1959) U.S. S.C.
- Hellenic Lines v. Rhoditis (1970) U.S. S.C.
A CANADIAN LOOKS AT AMERICAN CONFLICTS OF LAWGeneral Conclusion: The American’s have moved away from the interest analysis approach to the equity approach. General Rule: Very recently American conflicts theory seems to have turned inward, with its emphasis on equity and the lex fori. There is no coherent conflict of laws in the US (unlike in Canada). “Conflicts Revolution” in USA (1930’s) – resulted in a Restatement (first), which was done by Professors and hoped that courts/legislatures would follow it. Also resulted in Second Restatement. Canadian Viewpoint – up to a view years ago we followed Britain (ie. double actionability) and Quebec had some conflict rules in CCLC (but common law rules were imposed on Quebec in a number of cases). US only uses 3 of 5 Approaches: Single concepts (authors – such as B. Currie, developed “interest analysis” golden rule was that you should try and find a state that is directly concerned by the events/transactions, came up with lex fori; WF Baxter, developed “comparative impairment,” went farther than Currie’s interest analysis, must see which states policy would be more greatly impaired in a certain choice; Leflar, developed “better law,” ie. what is best for the parties; McDougall, developed the “best law” – all single concept/golden rule theorists which only answer some questions. Multiple Numbered Rules – First and Second Restatements Authors – used by most law schools, follow a text International Conventions – very weak on signing international conventions US doesn’t have national law (except for Louisiana) or doesn’t apply a consistent “methodology” US approach is eclectic – “all sorts of approaches and you take your chances” Why is the US approach to conflicts like this? Relative wealth Corrective v. Distributive Justice American legal and court system “The only way to get a law passed in the US is when there is a tragedy” – examples: oil pollution, medical malpractice, mass torts American procedural law – civil trials, punitive damages, discovery (makes suit more important and why form convienis can be a different concept, ie. come to a different result, strong system of discovery such that you can ask for anything from the other side). The “American Rule” = created during the Revolution, prohibited the losing party from paying the court costs of the other side, idea is that each parties pay its own costs. Conclusions: American conflicts has numerous theories, eclectic. Needs a third Restatement Corrective justice, social system and legislature unlike most of the rest of the world. When it comes to conflicts not certain what will happen, but will likely keep jurisdiction and favor the person not at fault. CANADIAN CONSTITUTIONAL LAW & CONFLICT OF LAWA topic of considerable debate/interest up to the adoption of legislation which came into force on Aug 8, 2001. Ordon v. Grail – was the important case but now has been completely replaced by legislation. Example of federal government saying that everything connected with boats/waters is federal, is faced with a difficult problem because someone was injured in a boat but he was partially at fault so there was no collision and there was no federal law which was directly applicable. If provincial law applied (ie. Ontario) there would have been proportionate fault. There was no statute regarding damages at federal law, so would technically recover nothing because of the contributory negligence rule. Holding: found that provincial statute applied, would be proportionate fault, found that there was concurrent federal/provincial jurisdiction over this matter. Said that proportionate fault and the right of siblings to claim and the right to go before any court (Federal or provincial) was a mix of federal and provincial law. Marine Liability Act LAW OF THE PERSON/LAW OF THE FLAGIntroduction and Historical BackgroundEarly maritime law was not characterized by conflicts, because until at least the end of the 16th century, there was considerable homogeneity in European maritime law as a result of the oral lex maritima from the lex mercatoria. In the 15th century the uniformity began to erode and with the existence of different national laws conflicts arose which were solved by the 16th century on the basis of the territorial theory. Nationalism spawned the theory of the law of the ship’s flag, the ship being considered an extension of the national territory (“floating island” theory). Various authorities have used the law of the ship’s flag in the past as the sole and definitive indicator of the applicable maritime law. In the 19th century, the law of the flag theory came to be accepted (Lloyd v. Guibert (1864)). It posited that relations involving the master, crew, ship and third parties (including contracts) would follow the law of the flag. The law of the flag theory conceived of the ship as essentially an extension of the national territory - a floating island. Not unlike the Napoleonic concept of citizenship and the law – application of French law wherever their citizens went. The law of the flag theory suffered from limitations (flags of convenience, double flagging, double registries, etc.) that caused it to go out of favor as an overarching rule. This is demonstrated by the Third Restatement 1986, which debunks the floating island theory and sublimates the law of the flag to a “genuine link between ship and state.” there is much difficulty when it confronts the territorial sovereignty of other nations. A ship’s flag remains important today (various national laws and international conventions continue to give expression to it), but only insofar as it is one of many indicators or contacts necessary to determine the governing law (see Lauritzen below) Note: The Rome Convention 1980 has no references to the law of the flag which is significant because the Convention represents the latest thinking on the choice of contract law. Prestige Case Bahamian flag going from Latvia to Singapore. Drifts within 4 miles of Spain and Spain orders it to be put out to sea where it sinks. The King of Spain has sued in New York the underwriters and American Bureau of Shipping. Claim is that Bahamian law is applicable (the law of the flag). ABS issued its survey report saying the ship was good. Concursus – grouping of all actions (example of plane crash) to be tried in the place with the closest and most real connection. Problem: There is much depecage Class Legislation National Laws – E.g., Canada Shipping Act, s.275 – “if there is no such provision on a specific matter relating to a ship, the case shall be governed by the law of the port at which the ship is registered.” Many other laws mentioned state the law of the flag as the law governing if none other is mentioned or as governing the rights in rem in a ship. International Conventions – E.g., Salvage Conventions, Collision Convention, Stowaways Convention, Geneva Convention on the High Seas, Arrest of Ships Convention, UN Law of the Sea. Most of these bodies of law make the law of the flag important in some way. The Rome Convention, however, makes no mention of the law of the flag. Legal Authorities – most authorities consider law of the flag as the sole contact, but today its not as accepted in law (it still exists in textbooks out of respect for Dicey, but it should be redone) Dicey & Morris (1987) noted that law of the flag should only govern as a last resort where it is impossible to discern the proper law of the contract. It may be determinative in regard to 1) formal validity of on-board marriages and 2) maritime torts committed on a single ship on the High Seas (double actionability here). Advocate American approach whereby the law of the flag applied to torts committed on a ship in territorial waters of another state, provided that everything takes place within the ship itself. Cheshire & North (1992) would also apply the English double actionability rule to torts aboard a single ship. The law of the flag or port of registry maye determinative for on-board marriages if there is some urgency and for wills made on a vessel. Almost the same as above. First Restatement 1934 – based on lex loci contractus, the law of the place contracting, and law of the flag used very frequently for maritime torts. Restatement Second (1969) makes only implicit reference to the law of the flag – restrictions on principle. Restatement (Third) and Foreign Relations Law – can use law of the flag but only if there is a genuine link between state and ship. French Authorities approve the doctrine of the law of the flag for delicts committed on the high seas, contracts made on the high seas, the status of the ship, charterparties, and questions concerning the crew (incl. labor disputes) – but state in whose waters delict took place could also apply its laws if affected state itself or its citizens. Used to maintain consistency. Guiding Jurisprudence on the Law of the FlagLauritzen v. Larsen (1953) U.S. S.C.Tetley: “Perhaps, the most famous modern judicial statement on the law of the flag” Facts: Larsen, a Dane, was negligently injured aboard a ship in the course of employment, while in Havana Harbor. The vessel was of Danish flag and registry and was owned by a Danish citizen. Larsen had signed the ship’s articles, written in Danish, providing that the rights of crew members would be governed by Danish law (express choice in the contract vs. implied choice). Danish flag vessel. Larsen sought compensation under the Jones Act (U.S. law) on the basis that the owner of the vessel regularly does business in the States. Larsen had already been granted the seaman’s benefit under the Danish no-fault scheme, but was unsatisfied – he could get more money in U.S.. The contract was signed in New York and he joined the crew of the ship in New York (employment starts in New York). Issue: Tort and Contract. Is it fair to give him U.S. law or make him subject to the system in general? A question of fairness (Tetley: look at equities of the result). Is Larsen included under “any seamen” in the Jones Act? NO. Held: The U.S. courts cannot apply U.S. law (Jones Act) in this case. The court is really looking at the result of the application of any of the laws in this situation – American law is corrective law (where you have to sue) and Danish/Canadian is distributive (no-fault) where everybody gets paid without suing. Which system is best? Danish law covers the shipowner’s obligation and maritime usage of international law excludes the application of the incompatible U.S. statute. Maritime law attempts to “avoid or resolve conflicts between competing laws by ascertaining and valuing points of contact.” Here, you must weigh “the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority.” The indicators of connection are (seven contacts) – you don’t add them up, you weigh them Place of wrongful act (lex loci delicti commissi) – reference to Cuban law which is very similar to Danish law, so would lean towards Denmark because Cuban law not being asserted. Law of the flag – important but one of many and must be looked at seriously unless countered – problem is flag shopping. Allegiance or domicile of the injured – no national interest in this thing for U.S. and the recognition of American law (maybe if he was an American citizen) – also engages in interest analysis in the end (p.170). No duty towards him to justify the intervention of the law of one state on the shipboard of another. Allegiance of the Defendant ship-owner – acknowledgment that it is sometimes necessary to lift the corporate veil to find the true base of operations of the corporation. To prevent fraud, etc. Place of contract (lex loci contractus) – significance in choice of law in contract actions. Problematic because could make different members of crew in a more advantageous positions then others…creates confusion. Mentioned that not of substantial influence in tort matters. Inaccessibility of Foreign Forum – difficulty of accessing court (money, geography, etc.) – forum non conveniens. Doesn’t necessarily apply to the law to be used. The law of the forum – where a court has exercised some jurisdiction, someone has been served with process (Cook and Ehrenzweig) – easier for the court to apply the law that it is used to applying but problem is forum shopping (go to where most money would be available). Conflicts of law doctrine assures that a case will be treated the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum. He probably should have characterized the problem first (see Tetley’s methodology) – choice of law, etc. – is it contract or tort, what laws or what states… On an evaluation of the 7 factors, the Court found an “overwhelming preponderance in favour of Danish law.” Place of act was not U.S. Flag was Danish, not U.S. Larsen was Danish, not U.S. Shipowner was Danish, not U.S. This is tort not contract, but if contract then clause stipulating that Danish law applies covers it. Foreign forum is not inaccessible – claims can be made through Danish consulate. Specifically regarding the Law of the Flag: “Perhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag. Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it.” It is important to note, however, that “the flag” is only one contact of seven. An example of the general maritime law being acknowledged – U.S. has a statute but must respect the potential application of other laws when it is appropriate. An act of Congress should never be construed to violate the law of nations if any other construction remains. discusses comity which is the acceptance of the validity of foreign laws and judgments, so that they will accept your laws as well (reciprocal back scratching a good review of connecting factors and characterization of the problem and a quick solution (good judgment) one of the most cited cases – list of seven contacts – these types of cases don’t often reach the SC of USA Romero v. ITO (1959) U.S. S.C.The application of Lauritzen factors extended to all maritime law conflicts, contract as well as tort. The second case in a triumvirate in the United – Lauritzen applies not only to tort but also contract Hellenic Lines v. Rhoditis (1970) U.S. S.C.An eighth factor is added to the seven in Lauritzen: “the shipowner’s base of operations.” In Court of Appeal, it was said that Lauritzen is not to be applied mechanically - “not a contact counting test.” This means that “...the flag that a ship flies at the time may alone be sufficient” in determining the connection. You don’t count them but you weigh them (balance) – you can’t say one forum wins 5-3 or so on – you must consider them carefully and decide which are the most important under the circumstances. What is the significance of them adding the ship-owner’s base of operations? This is like lifting the corporate veil – so it has a significance of doing this as well. Wasn’t this already in Lauritzen? Important because equivalent to piercing the corporate veil – may have head office in Liberia but base of operations in New York so this is the contact. Imperial Oil v. Petromar: Facts: -supply of lub in Canada, Cadn Ships flag registry ownership, American agents, Claimant Cdn, Charteres Cdn Characterize the Problem -Choice of Law Problem: Can or American Maritime Law This case stands for the type of analysis: Proper law may be determined in 3 ways: 1) by express selection by the parties 2) by selection inferred from the circumstances 3) by judicial determination of the system of law with which the transaction has the closest and most real connection. Lauritzen and Romero are quoted: the indicators or connection below are mentioned. Imperial Life v. Colmenares is the authority on this sort of analysis. Government interest analysis is also mentioned as a policy factor affecting U.S courts: Hellenic lines: “the significance of one or more factors must be considered in light of the national interest served by the assertion of US jurisdiction. 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