Torts committed on the high seas

Two situations need to be considered. First, torts committed on the high seas and confined within or internal to a single ship and, secondly, torts involving a high seas collision between two (or more) ships. In the first situation, the locus delicti (the place of commission of the tort) is deemed to be the flag state (or country of registration) of the ship leading to the application of the law of that place as the lex loci delicti if a tort claim is brought in an Australian court e.g. by a passenger against the shipowner for personal injury suffered in an accident caused by the negligence of a member of the ship’s crew. In the second situation, the applicable law is the lex fori (including the lex fori’s principles of maritime law) if a tort claim is brought in an Australian court e.g. by one shipowner against another in respect of damage negligently caused in the high seas collision. See Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co (1883) 10 QBD 521 where English law (including its principles of maritime law) was applied as the lex fori in proceedings arising out of damage to goods caused in a high seas collision between two Dutch flag ships. In this case, Brett LJ observed (at p 537) that, since “time immemorial”, claims of this nature had been maintained in the Court of Admiralty even although the tort committed on the high seas was not a tort in the flag state of the foreign ships involved in the incident.

Although Anglo-American scholars (e.g. L Collins (Gen Ed), Dicey, Morris and Collins on the Conflict of Laws, 14th edn, 2006, pp 1927 – 1928; L McDougal, R Felix and R Whitten, American Conflicts Law, 5th edn, 2001, pp 480 – 483) agree that the law of the flag state governs torts committed on the high seas and confined within or internal to a single ship, direct authority for this proposition is relatively limited: see, e.g., the obiter observation of Lord Carmont in MacKinnon v. Iberia Shipping Co Ltd 1955 SC 20.

In Roerig v. Valiant Trawlers Ltd [2002] 1 WLR 2304 a fatal accident occurred on an English registered trawler engaged in fishing operations on the high seas off the coast of Mauritania (West Africa). The accident victim, Mr van der Plas, was a Dutchman and, in respect of his death, a fatal accident (compensation to relatives) claim was brought in England against the owner of the trawler by his dependants, Alexandra Roerig, a Dutchwoman, and the couple’s Dutch children. Although there were other connections with the Netherlands, e.g., “in real terms the vessel was on a Dutch fishing expedition” (Waller LJ at p 2310) which had set off from a Dutch port and would return with its catch to a Dutch port, the defendant was a subsidiary of a Dutch company and Mr van der Plas’ employment contract was with a related Dutch company, it was common ground that the lex loci delicti was English law. See note by Weir, All England Legal Opinion, issue 17, April 2002 at p 8.


The position in United States law which, in this respect, is not materially different from Anglo-Australian law is illustrated by the decision of the United States District Court (Southern District, New York) in Amdur v. Zim Israel Navigation Co 310 F Supp 1033 (1969). In this case the plaintiff, Joseph Amdur, a resident of New York who had been touring Israel with his family, was a passenger on the defendant’s Israeli flag vessel on a voyage from Haifa, Israel to New York. The plaintiff alleged that, while the ship was on the high seas, he received negligent medical treatment

2.

from the ship’s doctor. Levet J held that Israeli law as the law of the flag governed the plaintiff’s tort claim. In the result, the plaintiff failed to prove the alleged negligent medical treatment.

In Regie Nationale des Usines Renault v. Zhang (2002) 187 ALR 1, where the High Court of Australia adopted the lex loci delicti as the applicable law for international torts (torts committed outside Australia), Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed (at para 76), without elaboration, that “special considerations” apply to maritime torts and aerial torts. Subsequently, in the context of determining the limitation law to apply to a personal injury claim in the Supreme Court of the Australian Capital Territory arising out of the collision in 1964 between the Australian aircraft carrier Melbourne and the Australian destroyer Voyager on the high seas 18 miles off the coast of New South Wales, Gleeson CJ, Gummow, Hayne and Heydon JJ in their joint judgment in Blunden v. The Commonwealth (2003) 218 CLR 330 made the following observations:

23. ... [W]here, as in this case, the relevant events giving rise to a “maritime tort” occurred

on the high seas, one asks what body of law other than that in force in the forum has any better claim to be regarded by the forum as the body of law dispositive of the action litigated in the forum? ...

25. It should be stressed that this case does not present any issues that may appear in other cases of tort actions arising on the high seas. Various questions may arise in those actions. They may include the significance to the forum of the interest of the law of the flag of a foreign vessel in its “internal economy” or the interest of the law of the place in a federal nation where a relevant ship is registered. In the case of proceedings not brought in Admiralty, but arising out of a collision between vessels of different flags, they may include consideration of whether there is any reason not to apply the law of the forum. ...

` 40. ... Here there is no “law area” to be found on the high seas which can provide the lex loci delicti. The question then becomes whether there is any other legal system which has a better claim than the forum which is to be treated by the forum as the body of law by which the action is to be decided.

In the result in Blunden, the High Court held that the effect of s 80 of the Judiciary Act 1903 (Com) was that the statutory limitation law of the Australian Capital Territory applied to the claim. In this regard, Gleeson CJ, Gummow, Hayne and Heydon JJ noted (at para 19): “It is not to the point that the events giving rise to the cause of action upon which the plaintiff relies occurred on the high seas.”

Further reading:

Finlayson, “Shipboard torts and the conflict of laws”, (1986) 16 Victoria University of Wellington Law Review 119

George, “Choice of law in maritime torts”, (2007) 3 Journal of Private International Law 137

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RA/PIL08/High seas torts