A subdivision of I might be made, but would be superfluous, as, for reasons already stated, in transactions occurring on the high seas rights acquired under the laws of any countries other than those of the contending parties should be disregarded.

According to the rule of The Scotland,1 if literally construed without reference to the context, the law of the forum would be applied in 1, 2, and 4. The foreign law would be applied in 3. It is obvious that the wishes of both parties to the litigation might in many instances in this way be violated.

The question is plainly an intricate one, and it is dangerous to try and lay down a rule designed to cover all cases. It is not believed that Mr. Justice Bradley ever intended so to do. The rule as it stands appears to be based to some extent at least on the presumed wishes of the parties. Yet its application, if literally interpreted, would often thwart the wishes of both parties. It also apparently rests in part on the proposition that a court will prima facie administer its own law. Yet it calls for the enforcement of foreign law as against a foreigner seeking the application of the law of the forum.

The rule creates confusion by its method of approaching the subject. No man has any right to have one law rather than another applied to his case. No court should have any predilection for administering its own law rather than any other law, nor assume, because litigants usually seek to be adjudged by the law of their own countries, that they always do. The question is really one of legal rights and should be expressed in terms of legal rights.

The first questions for the court should always be what right does the plaintiff assert, and under what law does the asserted right arise. If the right appears to have been acquired under foreign law, the next subject of inquiry is whether the foreign law was competent to give it. If it was, and the enforcement of the right would not be contrary to the public policy, or in conflict with any right conferred by the law of the forum, then what possible reason can there be for refusing to enforce the right and thrusting forth the law of the forum as the governing rule? Where, in a controversy between parties of different nationalities, one of them seeks the enforcement of a right arising under foreign law, it will appear either that the law of the countries in

1 Supra.

volved is the same, in which case there would be no difficulty, or that there is a difference. In the latter case a specific conflicting right may be conferred on the opposing party, or the difference may simply be that no remedy is provided for the enforcement of an undoubted right. If the party stand on his conflicting right, here will clearly be a case for the application of the law of the forum. But it being his right and not the court's, he is entitled to waive it.

For example, a French ship and an English ship collide on the high seas, and a libel is instituted in an American admiralty court. Suppose the Frenchman asserts some right acquired under the French law, different from the American rule. The court refuses to enforce the right, because, perhaps, the English law gives contrary rights. Could not the Englishman waive the rights, if any, created by the English law and by the law of the forum, and thus submit the controversy to be governed by the French law? He may take a different view of that law than the Frenchman and regard his chances as better under that law than under his own or under the law of the forum.

Surely the court ought not to impose its own law for the sake of so doing, nor seek to enforce rights which no one asserts or which all waive. And so where the difference lies simply in the failure. to provide a remedy for the enforcement of an undoubted right, there being no right in either party to call for the application of one law rather than another, the court being indifferent which law is applied, but being bound to enforce legal rights if it can without violating any other rights of equal value,—the party asserting the absolute right under the foreign law is entitled to have it enforced.

The rule of The Scotland,1 if it be assumed to have been enunciated with reference to cases of conflicting rights insisted upon by the parties, is correct. It was probably intended to go no further. If it was, it is unsound.

There is no English authority directly in point. The jurisdiction of the English admiralty is governed by Section 7 of the Admiralty Court Act of 1861,2 which provides "that the High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship." In 1868 Sir Robert Phillimore held that under this section a suit in rem lay in the admiralty to enforce a claim for loss of life under Lord Campbell's Act.3 In 1870 the same judge 2 24 and 25 Vict., c. 10.

1 Supra.

3

9 and 10 Vict., c. 93; The Guldfaxe, L. R. 2 A. & E. 325.

held that a proceeding in rem in the admiralty would lie in behalf of the legal representatives of French citizens on board a French ship, who were lost in a collision on the high seas between that ship and an English ship.1 Finally, in 1877 Sir Robert Phillimore, following his two earlier decisions, held, in the case of a collision in the Straits of Dover between a German ship and a British vessel, that the English administratrix and widow of a British citizen who was on board the British vessel and was lost in the collision, could maintain a proceeding in rem under Lord Campbell's Act for the death.2

In the meantime in 1871 and 1872 the cases of Smith v. Brown,3 James v. London & South Western Railway Company, and Simpson v. Blues were decided, by which cases The Guldfaxe and The Explorer were supposed to have been shaken.

In Smith v. Brown the admiralty court was prohibited by the Queen's Bench from taking jurisdiction of a proceeding in rem to enforce a right of action under Lord Campbell's Act for death occurring upon the high seas, on the ground that the damage referred to in Section 7 of the Admiralty Court Act did not include loss of life.

In James v. London & South Western Railway Company it was held that the admiralty court should be prohibited from entertaining a petition for the limitation of liability against certain claims for damages, including suits for loss of life occurring on the high seas. The decision both in the Court of Exchequer and in the Exchequer Chamber was based on the ground that the vessel was not under arrest when the petition to limit liability was filed. It was, however, stated in the Court of Exchequer, although the decision was not based on that ground, that the admiralty court could not entertain a suit for loss of life under Section 7 of the Admiralty Court Act.

In Simpson v. Blues it was held that as the admiralty would have no jurisdiction over a suit for the short delivery of cargo shipped under a charter party, the County Court would have no such jurisdiction, although it was provided by statute that such court should have jurisdiction to try causes as to any claim arising out of any agreement made in relation to the use or hire of a ship, provided the amount claimed did not exceed

1 The Explorer, L. R. 3 A. & E. 289.

8 L. R. 6 Q. B. 729.

5 L. R. 7 C. P. 290.

2 The Franconia, L. R. 2 P. D. 163.

4 L. R. 7 Exch. 187, s. c. 7 ibid. 287.

6

32

and 33 Vict., c. 51, s. 2, § I.

£30. It will be seen, therefore, that if The Explorer and The Franconia were shaken by the cases in the Queen's Bench, The Exchequer, and the Common Pleas, it was not at all on the ground that an action would not lie for or against foreigners in case of loss of life on the high seas, but solely on the ground that under Section 7 of the Admiralty Court Act the courts of admiralty had no jurisdiction of a suit under Lord Campbell's Act.

In 1884 the matter came before the House of Lords in Seward v. Vera Cruz.1 This case arose out of a collision at the mouth of the Mersey between the Vera Cruz, a Spanish vessel, and a British vessel, the master of which was drowned. His personal representative brought an action in rem against the Vera Cruz to recover for the death. It was held that the liability of the shipowner under Lord Campbell's Act to make good damages caused by the master's negligence was not damage done by a ship, and that therefore the action would not lie. The House of Lords appears to have proceeded on the theory that inasmuch as the only action for damages for loss of life was that created by Lord Campbell's Act, and inasmuch as the action created by Lord Campbell's Act depended upon wrongful act, fault, or negligence, it could not be said that a ship, an inanimate thing, could be guilty of wrongful act, fault, or negligence, however much the persons in charge of it might be culpable.

Since, however, the admiralty court is now a division of the High Court, a proceeding in personam under Lord Campbell's Act may be instituted and maintained in the admiralty.2

It would appear, therefore, that the English law, as these decisions left it, was that in case of loss of life on the high seas a proceeding in personam might be maintained under Lord Campbell's Act in the English courts, although against British subjects, for the death of a foreigner, and against foreigners for the death of British subjects, provided, of course, the requisite jurisdiction of the parties existed.

The question again arose in Adam v. British and Foreign Steamship Co., Ltd. In that case a Belgian subject on board a Belgian ship lost his life in a collision on the high seas between the Belgian ship and a British ship. The court held that a personal

1 10 App. Cas. 59.

2 The Bernina, L. R. 12 P. D. 58, s. c. on appeal, 13 App. Cas. 1; The Orwell, L. R. 13 P. D. 80.

8 [1898] 2 Q. B. 430.

action under Lord Campbell's Act did not lie in behalf of the personal representative of the mother of the deceased. The decision of the court was based solely upon its construction of Lord Campbell's Act, the court saying that the act was not intended by Parliament to apply to foreigners.

In Davidsson v. Hill1an exactly contrary decision was reached on precisely the same state of facts. Furthermore, Kennedy, J., said:

"It is not necessary to decide whether, assuming, of course, that no technical difficulty arises as to the service of proceeding, the action could be maintained in the English courts, the death occurring through negligence in a collision upon the high seas, where both parties were foreigners or where the wrongdoers were foreigners and the sufferers English. My personal opinion is that the action could be maintained, but I desire to be understood as not expressing, as it is not necessary to express, a decided opinion upon this point."

There never has been any question of the power of Parliament to give a right of action binding upon foreigners for death occurring upon the high seas. The only question in the English courts has been whether Parliament has exercised its power, and the probability is that in the future the English courts will hold that Lord Campbell's Act was intended to apply to transactions occurring upon the high seas both in behalf of and against foreigners.

While one nation is not always ready to accord to other nations the same measure of power which it itself exercises, nevertheless it may fairly be assumed that England would recognize the right in other nations to deal with cases of death upon the high seas in the same manner. If that is true, it follows that the English courts would, under the circumstances of the Rundell case, have enforced the right of action which arose under the French law.

As to the desirability on grounds of policy of allowing recovery under such circumstances, there would seem to be hardly room for more than one opinion. It is true, of course, that there would still be left many cases of wrongful death upon the high seas where there would be no remedy. But that is scarcely a reason for denying such measure of relief as the law in its present state warrants, especially in view of the fact that the law as administered in the admiralty courts of the United States would, by the establishment of the doctrine here contended for, be brought appreciably

1 [1901] 2 K. B. 606.