Article by David J. Bederman
In the nineteenth century, private international lawyers were often troubled by the problem of state sovereignty. Nowhere is this better illustrated than in the treatment of torts in the conflict of laws. In that branch of legal studies, state policy was considered a surrogate for sovereignty: a state expressed its sovereign will through its public policy. But there were limits to sovereignty, just as there were impediments to its expression in policy. The chief of these was the recognition that nations were sovereign in their own spheres but stood together as equals. Private international law, then, was nothing more than a systematized treatment of the situations in which equality tempered one nation's supremacy in policymaking.
This study was conducted at many levels. The first was practical: questioning how a nation's public policy was made and defined. This level was an exercise in doctrine. Next was the matter of enforcing that policy in reference to foreign persons, relations, and transactions. This level was the elemental basis for all private international law thinking. In the conflict of laws in torts, the enforcement question manifested itself in the controversy over whether to adopt the law of the forum in deciding substantive legal issues, or whether the law of the place where the delict transpired should be used. Finally, there was the all-important task of shaping private international law as a distinct discipline, separate from its parents, the law of nations, and the municipal law as applied to things foreign. The conflict of laws in torts presented special difficulties in this respect, precisely because the issue of recognizing a foreign wrong as actionable often implicated profound public policy issues that were not readily susceptible to easy rules or gracious comity.
This Article examines the scholarly discourse of the nineteenth century that connected public policy with private international law. Such a study must, however, proceed along certain schematic lines to retain the cogency, sense, and flavor of the arguments used to expound conflict of laws rules for torts. This construct begins by examining how a particular nation's public policy evolved, the substantive legal doctrines it generated, and the private international law rules that were fashioned when those policies and doctrines collided with those of other nations. Only then can an intellectual history of early private international law thinking be written. More importantly, only in the context of concrete policies and articulated legal doctrines did rules for arbitrating conflict of laws have any real meaning or relevance. This Article suggests, therefore, that private international law began as nothing more than a rudimentary system to grant or deny the enforcement of one nation's public policy in another country.
This view is at odds with that espoused by modern treatise-writers. The traditional view is that conflict of laws was developed as a mechanical discipline. It was believed that a party possessed a right or obligation that originated in one sovereign jurisdiction, the enforcement of which was sought in another forum. Assuming (and it was often a heroic assumption) that the forum had jurisdiction over the person, relationship, or transaction at issue, private international law became a matter of characterizing the right or duty into a definite category, such as obligations, status, or property, with their correlative legal forms of, for example, contract, marriage, and succession. Next, a court identified a significant moment or event in the cause of action and fixed it in a place. Rules for each type or category of cause provided the necessary equation between the significant event and the pertinent place. Then, with certain exceptions, the forum applied the law of the selected place, whether this was its own law or a foreign law. This formula was by no means simple. It had a complexity and richness that gave nineteenth-century publicists and judges extraordinary freedom to think and rule in ways that were sometimes unexpected and extraordinary.
This order of inquiry, however, did presume one thing: that a forum was willing, at least in principle, to enforce a foreign right. Cases in which the forum's public policy would not permit such enforcement were deemed an aberration, an exception. A fair reading of the private international law decisions and scholarly writings, at least those in the realm of torts, reveals that recognition or refusal of a foreign right was completely dependent on its character as a public policy.
It is understandable that the judicial recognition of torts was so profoundly influenced by public policy. Torts were always considered a peculiar cause of action. Like contracts, they are a form of obligation, but the duty between tortfeasor and victim is not established in advance. Tort law also involves sanctions for misbehavior and is thus, in a sense, a public source of redress for private wrongs. These two qualities of torts informed much of the nineteenth-century debate on their extraterritorial enforcement. If torts were more like contracts, incorporating a system of risk distribution and compensation, then a forum's public policy would not be threatened by making foreign torts actionable. But if torts were treated more like crimes, as a private system of deterrence and moral condemnation, a foreign forum would be most unwilling, or at least take great care, in choosing whether to enforce them. How a tort was classified determined the extent to which it implicated public policy concerns, especially when foreign rights and obligations were involved. This categorization was, in turn, affected by other sorts of public policies, particularly those dealing with the promotion of industrial and economic development, risk distribution, and social welfare.
Even in the traditional conception of private international law, policy, rather than supposedly neutral rules, directed two of the essential steps of conflicts analysis: characterizing the cause of action and determining if a particular exception to enforcement was available in the forum. But the nineteenth-century lawyer's preoccupation with public policy transcended and belied the mechanical approach to conflicts that was nominally embraced. The debate on whether to adopt the law of the forum (the lex fori) or the law of the place of the tort (the lex loci delicti commissi) as the applicable law for a tort action was anything but a search for neutral principles. It was an argument about power, the power of an independent state to make and command obedience to its policies to the exclusion of those of other nations.
The argument centered on three questions. The first was how to define a policy. Must it be an affirmative grant of rights or privileges, or is it, instead, a negative process of rejecting or limiting contrary choices and goals? Second, there was the matter of how public policy should properly be made, whether by statute alone or also by judicially created doctrines. Did policy have to be a positive expression of law or could it be interpreted, expanded, or even contracted, by natural law principles in the common law? Finally, there was the question of the best strategy for enforcing public policy through private international law mechanisms. Should a forum adopt a vigorous and active conflicts approach that purports to carefully monitor the reception of all foreign rights and obligations? Or, instead, should a more passive posture be used, emphasizing comity and reciprocity with other jurisdictions?
The answers to these questions can be found in legal doctrine. The doctrines that give content to, and enforce, a policy often demand their own rules of conflicts resolution when they come into collision with contrary foreign policies. Private international law discourse was, too often, divorced from the underlying legal rights and obligations that were the subject of enforcement or denial. As a result, abstract and general conflicts rules were applied haphazardly to causes of action that were based in concrete law and also mandated by profound public policy concerns.
This Article illustrates the above phenomenon by examining the evolution of a particular public policy, as well as its expression in law and its subsequent transnational enforcement. Picking an illustrative policy is no easy task, particularly when the project is to describe the intellectual history of private international law in the nineteenth century. The one used in this Article is the policy, adopted by most maritime nations of the world, requiring mandatory local pilotage for vessels entering or leaving their ports. Compulsory pilotage, as an expression of publicly decided preferences, satisfies all the criteria needed in this study. It is, first of all, an important policy because it involves three critical characteristics: it is a tax, it distributes risk and reward, and it serves as a liability-shifting device. Section II of this Article will trace the evolution of compulsory pilotage in England and America, while answering the essential question of what, in law, made pilotage compulsory in certain instances and not in others.
Secondly, laws regarding compulsory pilotage had a broad potential for being the subject of transnational disputes. Goods, people, and ideas moved more by ship than in any other way, save walking, in the last century. Ocean trade was the lifeblood of many nations. Mariners knew no boundaries, but had to be knowledgeable of many laws, rules, and customs. The existence of compulsory pilotage in the ports they entered, or the coastal waters they plied, was among them. Disputes could arise when a ship captain refused compulsory pilotage, or when an incident involving tortious liability arose when a ship was under the control of a pilot.
Whether a shipowner (or the ship itself) was relieved of liability when a compulsory pilot was in charge and was the sole cause of a collision with another vessel (or an allision with an object on shore), was doctrinally complex, and this criterion is the third for the selection of an illustrative public policy. This complexity was accompanied by another illuminating element: the capability of the same public policy to produce different, and opposing, legal rules. Section III of this Article explains in some detail the prerequisites for a shipowner or vessel to invoke the compulsory pilotage exception to tort liability and the historical development of that defense in Britain, the United States, and continental Europe.
As will be shown, these jurisdictions had different rules about the availability of the compulsory pilotage defense. Before 1812, no nation had a definitive statutory enactment on the subject, forcing courts, when faced with the issue, to rely on general principles of agency and responsibility. Britain enacted legislation in 1812 to grant the defense, a policy that remained in force until 1913. In contrast, neither the United States nor the civil-law nations of Europe ever adopted such an approach. Indeed, the European nations refused to recognize the exception. In 1868 the United States Supreme Court in The CHINA declined to extend the defense to actions in rem against the vessel itself, but in 1901 did acknowledge that a shipowner, when sued in personam, was protected from liability for the negligence of a compulsory pilot.
In Section IV of this Article the focus shifts from legal doctrine to the development of concomitant conflicts rules. It is no coincidence that many cases involving the compulsory pilotage defense were among the leading private international law of tort cases in the nineteenth century. Three selected problems will be reviewed in this part of the study. The first question considered is whether a party could invoke the forum's statute as a defense to tort liability, even if that statute were contrary to the law of nations. This problem was important for private international law thinkers since it placed in sharp relief two competing sources of law: general maritime law and municipal law. Secondly, the issue whether a party could raise a defense of the lex loci will be reviewed. Cases presenting a foreign defense were often the first conflicts cases before British and American courts. Finally, and most importantly, the question whether a forum would entertain a foreign action contrary to its own public policy will be discussed. This debate squarely presented the issue of competing public policies and national sovereignties. It also demanded a choice: whether the lex fori or lex loci delicti would be looked to first in deciding the substantive law governing a tort action.
This survey concludes, in Section V, with a discussion of how the idea of public policy affected the nineteenth-century vision of international law, both public and private. Indeed, that very concept was what enabled private international law to differentiate itself from the law of nations. In the process, private international law proclaimed the supremacy of municipal law. The law of nations became only a secondary and subordinate source for rules of transnational incidents. This process of doctrinal definition between the disciplines of private and public international law is still continuing. The venerable rule that one nation will not enforce the penal laws of another, the availability of the law of nations as a defense to municipal law, and the extraterritorial application of other sorts of laws, are all just different aspects of the issue of public policy and state power. How the idea of public policy migrated in the nineteenth century between Europe, Britain, and America, and how it traversed different doctrinal fields during that time, continues to inform our thinking about the rights and obligations of individuals in a state system. This Article retells the story of that intellectual voyage.
About the Author
David J. Bederman. Associate, Covington & Burling, Washington, D.C. A.B. 1983, Princeton University; M.Sc. 1984, University of London; J.D. 1987, University of Virginia; Dip. 1989, Hague Academy of International Law. Member, District of Columbia and Georgia Bars.
Citation
64 Tul. L. Rev. 1033 (1990)