George Whitelock's Response to Mellor - Part III

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.)