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.)