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torts:foreign-torts

Foreign torts

Torts committed abroad have always been triable in English Courts, provided they expressly fulfilled the following conditions:

  1. The wrong must be of such a character that it would have been actionable if committed in this country.1)
  2. The act must not have been justifiable by the law of the place where it was committed.2) It is not necessary that the wrong should have been actionable where committed ; it is sufficient if it was unlawful.
  3. The act complained of must not be a tort of a purely local nature, such as a trespass to, or ouster from, land.3), or a nuisance affecting hereditaments.

No action will lie in England for an act committed in a foreign country if it either was lawful by the law of that country at the time of its commission4), or was excusable, or was subsequently legitimized by virtue of ex post facto legislation in such country.5)

Though the act complained of should be wrongful both by the law of England and by the law of the country where it was committed, yet it is not necessary that it should involve liability to civil proceedings in the foreign country. Unless the act was innocent or justifiable by the law of the foreign country it was immaterial to consider what the remedy might be by the law of that country.6) Again, it is no defence to an action for a tort committed in a foreign country that by the law of that country no action lies till the defendant has been dealt with criminally, for that is a mere matter of procedure.7)

In Phillips v. Eyre, an action was brought for assault and false imprisonment against the ex-governor of Jamaica, the trespass complained of having been committed during a rebellion in that island. The defendant relied on an Act of Indemnity which the Jamaica Legislature had passed ; it was held that legislation, though ex post facto, cured the wrongfulness of his acts and prevented the plaintiffs from recovering. In 1770, the Governor of Minorca was a gentleman named Mostyn, who apparently was of opinion that he was entitled to play the part of an absolute and irresponsible despot on his small stage. One of his subjects, however, one Fabrigas, did not coincide with him in this view, and he rendered himself so obnoxious that the Governor, after keeping him imprisoned for a week, banished him to Spain. For this arbitrary treatment Fabrigas brought an action at Westminster. Mostyn objected that, as the alleged trespass and false imprisonment had taken place in Minorca, the action could not be brought in England. But it was held that, as the cause of action was of transitory and not of a local nature, it could ; and £3,000 were given as damages to Fabrigas.8) By the negligence of a pilot, compulsorily taken on board, the Halley, a British Steamer in Belgian waters, ran down a Norwegian vessel, the Napoleon. By Belgian law the Britisher was liable, but by the English law the fact that the pilot was on board, and that the collision was due to his negligence exempted her. It was held that, under those circumstances, no action lay against her in England. “ It is,” the Court said, “ in their Lordships' opinion, alike contrary to principle and to authority, to hold that an English Court of Justice will enforce a foreign Municipal law, and will give a remedy In the shape of damages, in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed.” 9) Actions may be brought against foreigners, for injuries committed on the high seas.10) In an action in personam, brought by the owners of a British vessel against the owners of a Spanish vessel to recover damages caused to the British vessel by collision with the Spanish vessel on the high seas, the defendants pleaded that they were Spanish subjects, and that if there was any negligence on the part of those in charge of the Spanish vessel, it was negligence for which the master and crew alone, and not the defendants, were liable according to the law of Spain. It was decided that such a defence was bad upon demurrer.11) In an action between two non-resident foreigners for damages for an assault, battery, and false imprisonment, committed in Naples, the place of their domicile and birth, it was held that it was not a sufficient plea in bar, that by the law of Naples no action for private damages, for such a tort, could be maintained until after the defendant had been convicted in a public prosecution for the offence, and that the suit for that purpose was still pending and undetermined in the Courts of Naples; and that it made no difference in that respect, whether the damages sued for in the English Court were recoverable in the suit pending in the Neopolitan Court or not, all these questions having reference to the remedy only.12) British goods on Board a British ship within the territorial waters of Muscat were seized by an officer of the British Navy under the authority of a proclamation issued by the Sultan of Muscat. Held, that the seizure having been shewn to be lawful by the law of Muscat no action could be maintained in England by the owner of the goods against the naval officer.13)

Leading cases: Fabrigas v. Mostyn ; Phillips v. Eyre.

Foreign law

The Courts do not take judicial notice of the laws of foreign States. Such laws are proved by the oral evidence of persons having a practical acquaintance with them, and whether any particular person tendered as a witness is duly competent is a question for the Court. In general, where certain actions ex delicto are held transitory, and suits allowed to be maintained in a foreign forum, the right of action and the nature and extent of damage must be estimated according to the law of the place where the wrong was committed.

With regard to foreign statutes of limitations the rule is that if the foreign law touches only the remedy or procedure for enforcing the obligation it is no bar to an action in this country14), but if it extinguishes the right then it is a bar here.15)

1)
Carr v. Francis & Co.
2) , 15)
Phillips v. Eyre
3)
British South African Co. v. The Companhia de Mocambique
4)
Blad v. Bamfield
5)
Phillips V. Eyre
6)
Machado v. Pontes
7)
Scott v. Seymour
8)
Mostyn v. Fabrigas
9)
The Halley
10)
Submarine Telegraph Co. v. Dickson
11)
The, Leon
12)
Seymore v. Scott
13)
Carr v. Francis
14)
Huber v. Steiner


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