HARVARD

LAW REVIEW.

VOL. XXI.

NOVEMBER, 1907.

No. 1.

ENFORCEMENT OF A RIGHT OF ACTION ACQUIRED UNDER FOREIGN LAW FOR DEATH UPON THE HIGH SEAS.

SHOULD

I.

HOULD a right of action acquired under foreign law for death upon the high seas be enforced by a court of admiralty of the United States?

The foregoing question came before the District Court of the United States for the Northern District of Illinois in the case of Rundell v. La Compagnie Générale Transatlantique; 1 and before the Circuit Court of Appeals for the Seventh Circuit on an appeal taken by the libellant in the same case.2

The controversy grew out of the loss of the French steamship La Bourgogne belonging to the defendant company, a French corporation. On July 4, 1898, La Bourgogne collided on the high seas with the British sailing vessel Cromartyshire and was sunk. Edwin R. Rundell, a citizen of Illinois and a passenger on La Bourgogne, was lost in the collision. The administrator of Rundell filed a libel in personam in the District Court against the French corporation owning La Bourgogne.

There being no right of action either at common law or by the general maritime law as understood and practiced in the United States for death caused by a wrongful or negligent act,3 the libel

1 94 Fed. 366 (1899).

2 100 Fed. 655 (1900).

Insurance Co. v. Brame, 95 U. S. 754; Dennick v. Central R. Co., 103 U. S. 11, 21; The Harrisburg, 119 U. S. 199; The Alaska, 130 U. S. 201; Carey v. Berkshire R. Co., I Cush. (Mass.) 475; Holland v. Lynn & Boston R. Co., 144 Mass. 425; Seward v. Vera Cruz, 10 App. Cas. 59.

lant alleged in his libel that certain sections of the statute law of France, which were set forth in hæc verba, gave a legal representative a right of action for the death of his intestate accruing through the negligence of another; and that by the decisions of some of the courts of France said statute law is held to extend to and operate upon all persons, whether citizens or aliens, upon the high seas, in vessels flying the French flag; and that under those statutes and decisions a right of action for the death of said deceased, enforceable in the District Court, arose and existed in favor of the libellant. Exceptions to the libel were filed, which were sustained by the District Court, and the libel was dismissed. The decree of the District Court was affirmed in the Court of Appeals.

It is not altogether clear upon the allegations of the libel what the character of the French law was under which the libellant claimed to have acquired his right of action. His claim, by reason of the territoriality of La Bourgogne, might be based on the strictly local or territorial law of France; or he may have based his right upon the jurisdiction which France exercises, or may, if she chooses, exercise, over her own citizens, wherever they may be; or it may be that the libel was intended to set forth a right of action under the general maritime law of France.

As the case went off, however, it is not material to determine the proper construction of the libel in this particular.

The second exception asserted that "no right of action exists and no action can be maintained in a court of admiralty of the United States to recover damages for death by negligence occurring upon the high seas."

The third exception advances the proposition that "the general maritime law as interpreted and enforced by the courts of the United States" alone governs the case.

It is obvious that these exceptions could not be sustained and the libel dismissed unless it could be said, as a matter of law, however the libel might be construed, that the right of action could not be enforced in a court of admiralty of the United States.

Accordingly, neither the District Court nor the Circuit Court of Appeals undertook to construe the libel. The District Court simply assumed that it set out a right of action under the general maritime law of France, and held that such a right could not under the circumstances be enforced in an American court of admiralty. The Court of Appeals considered each possible aspect of the

case. It took up first the question as to what would be the rights of the libellant if they depended on the strictly local or territorial law of France. In such case, of course, it would, as the court correctly declared, be necessary for the libellant to show that the cause of action arose within the French territorial jurisdiction. The libellant contended that the cause of action must be taken to have arisen within French territorial jurisdiction and to have been governed by the French territorial law, since the ship must be regarded as a floating portion of the territory of France.

Assuming this to be true, in the case before the court the gist of the action was, on elementary principles, the death, and the cause of action arose where the death took place. This being so, it would not seem an extreme step to take to hold that, if the negligent act caused the loss of the ship and death by drowning, the French territorial law should still govern, although, as was the case here, it were impossible to show whether the deceased were drowned in his bunk, or went down with the ship, or leaped into the sea and came to his end a few yards away. The court, however, declined to take this view. Bunn, J., after showing that the cause of action arose where the death took place, said: 1

"To make the local law of France, therefore, of any possible application, it should appear by clear averment that the drowning took place upon the steamship. The libel nowhere states that the deceased came to his death while upon the Bourgogne. The averments are merely that he lost his life by drowning as a result of a collision and sinking of the vessel. The plain implication, therefore, is that he was drowned upon the high seas, apart from the vessel. At least, there is nothing to show the contrary. The locus of the tort, therefore . . . must be considered as being upon the high seas rather than upon French territory."

This line of argument would seem to be fairly open to the charge of excessive refinement; and the contrary was taken for granted in Regina v. Keyn.2

The court, however, did not base its decision on this ground. It held, not that the libel properly construed showed only a right given by French territorial law and therefore not enforceable for the reasons above quoted, but that if the libel was to be so construed there could be no recovery, and then proceeded to consider what would be the result if the libel correctly interpreted showed that the right given by the French law rested on some other basis, as, 2 2 Ex. D. 63, 235.

1 P. 656.

for instance, the undoubted right of France to make laws which would bind its own citizens abroad, if they should ever return to be adjudged in the courts of their own country.1

By virtue of this power over its own citizens abroad, France had the right and authority to impose upon them the liability to pay damages for death caused by their wrongful or negligent acts on the high seas, to confer a right to recover those damages on the personal representative of the deceased, and to make that right enforceable in the French courts. Unquestionably, if the French statutes and decisions referred to in the libel rested on this principle, they conferred a right upon the libellant which he could have enforced, if the suit had been brought in France. Should an admiralty court of the United States enforce that right? The Circuit Court of Appeals said that the right of a nation to control its citizens abroad was not a right that would always be respected by the courts of other countries, and held that the libellant could not recover on this principle.

A very interesting question is here presented, and one on which there is little, if any, direct authority. Suppose the transaction had taken place within the territorial waters of a state of the United States where there was no action for death. As will be shown later, by the great weight of authority in the United States, a right of action duly acquired under foreign law will be enforced, though the transaction giving rise to the right would not give rise to a similar right in the country of the forum.

The fact, therefore, that there is no action by the law of the forum ought not to be of any more consequence than where the transaction giving rise to the right of action occurs on foreign territory. Of course, if the act for which the foreign law imposed a liability on its citizens were one which the law of the forum directly authorized or sanctioned, its courts could hardly be expected to hold that any one, even a foreigner, would be under any liability for doing what the law of the place where the act was done authorized and empowered him to do.

But the law of no state in the United States authorizes or empowers any one, citizen or foreigner, wrongfully to cause death. In fact in this case, if the libellant's intestate had escaped with injuries, the defendant would have been liable in damages. It would seem, in the case supposed, that an American court should not

1 Story, Conf. of Laws, 8 ed., §§ 21, 22; The Zollverein, Swab. 96, 98; Reg. v. Keyn, 2 Ex. D. 63.

refuse, at any rate in favor of its own citizens, to enforce a right which would by that enforcement become a valuable right, which the law of France by virtue of its powers over its own citizens was competent to create, and which was not in conflict with the policy of, or any right created by, the law of the state of the forum, merely for the sake of preventing the French law from affecting, even indirectly, transactions occurring within the United States.

If this is sound, all the more should such a right be enforced where the transaction takes place on the high seas, where France has jurisdiction as fully as the United States.1

1 The Scotland, 105 U. S. 24; U. S. v. Rodgers, 150 U. S. 249, 272; The Brantford City, 29 Fed. 373, 383. The point was taken in The Mary Moxham, L. R. 1 P. D. 107. An English ship negligently injured a pier in a port in Spain. By the law of England the owners of the vessel would be liable for the negligence of the master and crew, if the negligent acts occurred in England. Under the law of Spain, there was no such liability on the part of the owners. The court gave judgment for the defendants.

If the defendants were liable at all, it was because the acts of the master and crew, on familiar principles of agency, were the acts of the owners. Those acts took place in Spain, and the cause of action arose there. If it be assumed that England, by virtue of her jurisdiction over her citizens wherever they might be, could and did give a right of action enforceable in the English courts for an act done in Spain, then it might be urged that the Spanish courts could and would enforce that right of action. Such being the case, the plaintiff should have had judgment. This, if the argument is understood, is precisely the position taken by Benjamin, counsel for plaintiff. The court, apparently not stopping to consider whether on the basis suggested an action would lie under the English law, if the Spanish law presented no difficulties, met him with the proposition that an action would not lie in England for a wrongful act committed abroad, unless the act were wrongful by the law of the place where it was committed as well as by the law of England, and that the act was not wrongful by the law of Spain. If the court meant by this that it must appear that an action would lie in both jurisdictions, it might perhaps be answered that according to the argument the English acquired right would be enforced in Spain and so the requirement be fulfilled. If the court meant that it must appear that an action would lie under the English law and under the Spanish law irrespective of that branch of it which dealt with the enforcement of foreign acquired rights, then the proposition announced by the court would, if sound, prevent recovery in England. As a matter of fact, however, both court and counsel considered the question as limited by the precise terms used, and Benjamin proceeded to argue that the act was wrongful under Spanish law because admittedly an action lay in Spain against the master and crew.

To this the court answered that the question as to who, if any one, was liable for a given act was in no sense a question of remedy or procedure, but one of substantive law. The decision was right, but the true reason for it was not clearly brought out. In fact counsel and court were somewhat at cross-purposes. Benjamin was apparently seeking the enforcement of a right given by the English law by virtue of its jurisdiction over British subjects everywhere. The court seemed to have assumed that the right sought to be enforced was acquired, if at all, under the laws of Spain. A sufficient answer to Benjamin's argument would have been that the law-making power of England, while undoubtedly possessing power to create rights of action against Englishmen for torts committed abroad, had not chosen to exercise that power. Setting