To read from the beginning, please see blog entry dated June 9, 2009.
To read Part II, please see blog entry dated June 11, 2009.
This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
(continued from part II)
Mr. Justice Holmes said in the course of a luminous and scholarly judgment delivered by him on behalf of the Supreme Court (Mr. Justice McKenna alone dissenting) that:
“It is true that the Act of Congress does not control or profess to control the conduct of a British ship on the high seas. It is true that the foundation for a recovery upon a British tort is an obligation created by British law. But it also is true that the laws of the forum may decline altogether to enforce that obligation on the ground that it is contrary to the domestic policy, or may decline to enforce it except within such limits as it may impose. It is competent, therefore, to Congress to enact that in certain matters belonging to admiralty jurisdiction parties resorting to our Courts shall recover only to such extent or in such way as it may mark out. The question is not whether the owner of the Titanic by this proceeding can require all claimants to come in and can cut down rights vested under English law, as against, for instance, Englishmen living in England who do not appear. It is only whether those who do see fit to sue in this country are limited in their recovery irrespective of the English law. That they are so limited results in our opinion from the decisions of the Court.
It is not necessary to consider whether the Act of Congress may not limit the rights of shippers or American vessels to recover for injuries in our waters or on the high seas, so that if they sued in a foreign court they could not be allowed to recover more than the Act allows if our construction of the law were followed. A law that limits a right in one case may limit a remedy in another. This statute well might be held to announce a general policy, governing both obligations that arise within the jurisdiction and suits that are brought in the Courts of the United States. It clearly limits the remedy, as we have shown, in cases where it has nothing to say about the rights.
We see no absurdity in supposing that if the owner of the Titanic were sued in different countries, each having a different rule affecting the remedy there, the local rule would be applied in each case. It can be imagined that in consequence of such diverse proceedings, the owner might not be able to comply with the local requirements for limitation, as it also is conceivable that if it sought the advantage of an alien law it might as a condition have to pay more than its liability under the law of its flag in some cases. But the imagining of such possible difficulties is no sufficient reason for not applying the statute as it has been construed; on the whole, it would seem with good effect.”
(To be continued in Part IV of Whitelock's Response to Mellor.)
Sunday, June 21, 2009
Thursday, June 11, 2009
George Whitelock's Response to Mellor - Part II
To read from the beginning, please see blog entry dated June 9, 2009.
This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
(continued from Part I)
When the Titanic sank at sea in collision with an iceberg, the vessel had never been in a port of the United States. In such circumstances, the Court of first instance at New York denied all right of the Company to limit its liability under American law. The point had been taken by claimants at the very outset that upon the facts shown in the petition itself, the petitioner’s right of limitation, if it existed at all, was that granted by the terms of the British statute conferring a right of limitation and not by the American. And on April 21, 1913, Judge Holt then sitting, it was held below that three universal principals were decisive against the limitation claimed by the British Company under American law. Those principles were, the Judge said: (1) The rule that the law of no nation has any extra-territorial effect; (2) The rule that a ship on the high seas is a part of the country to which she belongs; (3) The rule that liability for a tort is governed by the lex loci delicti.
The Supreme Court of the United States has reached in its recent decision an entirely different conclusion than Judge Holt, the Court of final appeal holding that the owner of a British vessel can legally maintain such proceedings under American law in case of disaster upon the high seas where only that vessel is concerned, although there are claimants of many different nationalities; and further ruling that this right of limitation exists where there is nothing before the American Court to show what, if any, is the British law, touching the owner’s liability for the disaster, as well as where it affirmatively appears in such a case that the British law makes a provision for limitation of liability on terms and conditions different from those afforded by the American statutes.
In consequence of these views it was decided that the Courts of the United States will in such proceedings to limit the owner’s liability, enforce the American law and will not enforce the law of Great Britain.
(To be continued in Part III of George Whitelock’s Response to Mellor.)
This article may be read in its entirety at George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
(continued from Part I)
When the Titanic sank at sea in collision with an iceberg, the vessel had never been in a port of the United States. In such circumstances, the Court of first instance at New York denied all right of the Company to limit its liability under American law. The point had been taken by claimants at the very outset that upon the facts shown in the petition itself, the petitioner’s right of limitation, if it existed at all, was that granted by the terms of the British statute conferring a right of limitation and not by the American. And on April 21, 1913, Judge Holt then sitting, it was held below that three universal principals were decisive against the limitation claimed by the British Company under American law. Those principles were, the Judge said: (1) The rule that the law of no nation has any extra-territorial effect; (2) The rule that a ship on the high seas is a part of the country to which she belongs; (3) The rule that liability for a tort is governed by the lex loci delicti.
The Supreme Court of the United States has reached in its recent decision an entirely different conclusion than Judge Holt, the Court of final appeal holding that the owner of a British vessel can legally maintain such proceedings under American law in case of disaster upon the high seas where only that vessel is concerned, although there are claimants of many different nationalities; and further ruling that this right of limitation exists where there is nothing before the American Court to show what, if any, is the British law, touching the owner’s liability for the disaster, as well as where it affirmatively appears in such a case that the British law makes a provision for limitation of liability on terms and conditions different from those afforded by the American statutes.
In consequence of these views it was decided that the Courts of the United States will in such proceedings to limit the owner’s liability, enforce the American law and will not enforce the law of Great Britain.
(To be continued in Part III of George Whitelock’s Response to Mellor.)
Tuesday, June 9, 2009
George Whitelock's Response to Mellor - Part I
In Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, the Supreme Court answered the following three questions certified to the Court by the United States Court of Appeals for the Second Circuit – 1) whether an owner of a vessel of British nationality, involved in a collision that gave rise to claimants of many different nationalities, was entitled to maintain a proceeding to limit its liability, 2) whether the owner was able to maintain such a proceeding in the United States if the law of the foreign country to which the vessel belonged made provision for limitation upon different terms, and 3) if the answer to the second question was in the affirmative, whether the courts of the United States enforced the law of the United States or of the foreign country. The Supreme Court answered “yes” to the first two questions. Regarding the third question, the Court answered that the laws of the United States were to be enforced because limitation of the owner’s liability was considered to be remedial in nature.
Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, 233 U.S. 718 (1914).
In upcoming blog entries, beginning with this one, I’ll transcribe George Whitelock’s response to the decision, first published in the American Law Review in 1915. George Whitelock served as Chairman of the Special Committee to Present Bills to Congress Relating to Courts of Admiralty. (I’ll be transcribing one of the Committee’s recommendations in an upcoming blog entry.)
George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
Damages For Death By Negligence At Sea – The Titanic
A recent decision of the Supreme Court of the United States (May, 1914) concerning the loss of the Titanic (233 U.S. 718) induces an extension of my remarks on recovery of damages for death by negligence at sea submitted to the International Law Association six years ago. The profound and universal interest in that awful tragedy is the justification for additional comment.
It will be recalled that the existing law of the United States confers no right of civil recovery for loss of life by negligence on the high seas. Derived from the common law of England, the archaic principle that there can be no pecuniary recompense for the death of a human being still prevails, unless abrogated by statute, in all jurisdictions in which that system of law is operative. Decisions by the United States Supreme Court in 1907 and 1908 caused a statement of my views on such damages to the meeting at Buda-Pesth [sic]. The cases in point were The Hamilton (207 U.S. 398), an American steamer, and La Bourgogne (210 U.S. 95), a French vessel. Each case arose out of a surrender by the shipowner of the remains of his property after collision, together with the freight pending, the purpose of the suits being a limitation of the shipowner’s liability under the provisions of the Act of 1851 of the American Congress. These decisions were a definite advance in the application of extra-territorial law to extra-territorial marine torts. But death claimants having been merely admitted to participation in funds voluntarily paid into Court by shipowners under statutory proceedings to limit their liability, the cases are not authority for the maintenance of direct suit to recover for death by negligence at sea.
Litigation in America concerning the loss of the Titanic on April 14, 1912, has now assumed the same form as the litigation concerning The Hamilton and the litigation concerning La Bourgogne, in which the above mentioned decisions were respectively rendered. The Oceanic Steam Navigation Company, Limited, owner of the Titanic, and a British corporation, has undertaken by petition in the American admiralty to limit its liability under American law to $91, 805.54, an amount representing the aggregate of salved property and freight pending, the claims asserted against the Company in actions for loss of life and personal injuries in the Courts of America running into the millions. By the Company’s own petition it is asserted that the steamship Titanic was a total loss, and that nothing was saved from the wreck except 13 lifeboats, together with their equipment, and one collapsible boat, which was subsequently picked up by the steamship Oceanic and brought to New York.
(To be continued in Part II of George Whitelock’s Response to Mellor)
Oceanic Steam Navigation Company, Limited, as Owner of the Steamship Titanic v. Mellor, 233 U.S. 718 (1914).
In upcoming blog entries, beginning with this one, I’ll transcribe George Whitelock’s response to the decision, first published in the American Law Review in 1915. George Whitelock served as Chairman of the Special Committee to Present Bills to Congress Relating to Courts of Admiralty. (I’ll be transcribing one of the Committee’s recommendations in an upcoming blog entry.)
George Whitelock, Damages For Death By Negligence At Sea – The Titanic, 49 American Law Review, 75 (1915).
Damages For Death By Negligence At Sea – The Titanic
A recent decision of the Supreme Court of the United States (May, 1914) concerning the loss of the Titanic (233 U.S. 718) induces an extension of my remarks on recovery of damages for death by negligence at sea submitted to the International Law Association six years ago. The profound and universal interest in that awful tragedy is the justification for additional comment.
It will be recalled that the existing law of the United States confers no right of civil recovery for loss of life by negligence on the high seas. Derived from the common law of England, the archaic principle that there can be no pecuniary recompense for the death of a human being still prevails, unless abrogated by statute, in all jurisdictions in which that system of law is operative. Decisions by the United States Supreme Court in 1907 and 1908 caused a statement of my views on such damages to the meeting at Buda-Pesth [sic]. The cases in point were The Hamilton (207 U.S. 398), an American steamer, and La Bourgogne (210 U.S. 95), a French vessel. Each case arose out of a surrender by the shipowner of the remains of his property after collision, together with the freight pending, the purpose of the suits being a limitation of the shipowner’s liability under the provisions of the Act of 1851 of the American Congress. These decisions were a definite advance in the application of extra-territorial law to extra-territorial marine torts. But death claimants having been merely admitted to participation in funds voluntarily paid into Court by shipowners under statutory proceedings to limit their liability, the cases are not authority for the maintenance of direct suit to recover for death by negligence at sea.
Litigation in America concerning the loss of the Titanic on April 14, 1912, has now assumed the same form as the litigation concerning The Hamilton and the litigation concerning La Bourgogne, in which the above mentioned decisions were respectively rendered. The Oceanic Steam Navigation Company, Limited, owner of the Titanic, and a British corporation, has undertaken by petition in the American admiralty to limit its liability under American law to $91, 805.54, an amount representing the aggregate of salved property and freight pending, the claims asserted against the Company in actions for loss of life and personal injuries in the Courts of America running into the millions. By the Company’s own petition it is asserted that the steamship Titanic was a total loss, and that nothing was saved from the wreck except 13 lifeboats, together with their equipment, and one collapsible boat, which was subsequently picked up by the steamship Oceanic and brought to New York.
(To be continued in Part II of George Whitelock’s Response to Mellor)
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