CHAPTER 1
An Introduction 1.1 Introduction: The peculiar feature that tort occupies in private international law is that if the tortious act has been committed entirely locally, then lex loci delicti governs it, irrespective of the fact that whether it has or has not some foreign element, such as, both or one of the parties is domiciled or resident abroad or national of another country. The foreign law is applicable only in some very exceptional situations.
Torts in Common Law countries mean civil wrongs to a person, to property, or to a person’s reputation. Common examples are negligent acts causing injury or deaths, conversion, trespass to property and defamation.

1.2 Research Methodology: In making this project report the doctrinal method of research has been used.

1.3 Focus area: This project report focuses on the tort under private international law.

1.4 Scope of the study: In this project report the meaning of tort and law applicable to tort under private international law has been explained.

CHAPTER 2
Conceptual Analysis

2.1 TORT AND CONFLICT OF LAWS: Torts in Common Law countries mean civil wrongs to a person, to property, or to a person’s reputation. Common examples are negligent acts causing injury or deaths, conversion, trespass to property and defamation.
The same act may be both a tort and crime: assault can be a cause of action in tort and may also be a criminal offence. That is also true in some other situations, for example, misappropriation of property and (in India) defamation.
Conflict of laws problems can arise in the field of torts in a number of situations. To take just tow examples, the problem can arise if the act causing injury is committed outside the country and proceedings are brought in the country, or if the act is committed outside the country but the effect of the act is experienced in the country.
Two systems of law can, in theory, be chosen as the applicable law in a case of tort, the lex fori, and the lex loci deliciti commissi. Either solution is not wholly satisfactory. If the lex fori is adopted, it has the advantage of simplicity, as there is no need to ascertain where the tort took place, or to prove the law of the country where the act occurred. The selection of the lex fori is, however, arbitrary, and even unfair if a tort took place in a foreign country and the victim is also a national of that country who would expect a solution based on a law with which he is familiar and may result in forum shopping, particularly in federal countries. In most situations, the application of the lex loci deliciti commissi is the fairest solution, and accords with what may be regarded as the legitimate expectations of the parties, but in certain cases, that law may be purely fortuitous.

2.2 INTERNATIONAL CONVENTIONS (GENERAL): There appear to be two general international conventions in torts, the Hague Convention on the Law Applicable to Traffic Accidents 1971, and the Hague Convention on the Law Applicable to Product Liability 1973. Neither seems to be implemented in England and the Common Law countries, or in India, except that a law based on the Convention relating to Traffic Accidents is in force in the Canadian Territory of Yukon. Nineteen countries, all in Europe, have adopted the Convention relating to traffic accidents, and eleven, also in Europe, the Convention relating to product liability.

* Hague Convention on the Law Applicable to Traffic Accidents 1971: This Convention has limited applicability; its provisions govern the non-contractual civil liability arising from traffic accidents of all kinds. [Art. 1] Its provisions do not apply to the liability of manufacturers, sellers or repairers of vehicles or to liability of persons responsible for the maintenance of roads, or for ‘recourse’ actions between persons liable or subrogation claims of insurers or claims in the nature of social insurance. [Art. 2] The general rule is that the applicable law will be the internal law of the place where the accident occurs. [Art. 3] There are two exceptions to this general rule. The exceptions apply in two situations: (1) Where a traffic accident involving only one vehicle takes place in a country other than the country in which the vehicle is registered, and applies if the victim, if the victim, whether in the vehicle or outside the vehicle, is habitually resident in the same country, or if the victim, wherever he is habitually resident, is in the vehicle; and in such cases the applicable law will be the internal law of the country where the vehicle is registered [Art. 4]; (2) If more than one vehicle is involved in the traffic accident and both vehicles are registered in the same country, the applicable law is the internal law of the country where the vehicles are registered [Art. 4]. If, however, persons outside the vehicles or vehicles are affected by the accident, the law of the place(s) of registration will apply only if the persons are habitually resident in the country where the vehicle or vehicles are registered [Art.5]. The same law will govern the questions relating to damage to the goods carried in the vehicle or vehicles, but the internal law of the place where the accident takes place will govern questions about the liability of goods outside the vehicle. [Art. 6] * Hague Convention on the Law Applicable to Product Liability 1973: The Convention applies to the liability of the persons specified for the damage caused by a product, including damage caused as a consequence of a miss-description or failure to give adequate notice of the qualities or characteristics of the product; or the method of its use. [Art. 1] ‘Product’ includes natural and industrial products, whether raw or manufactured, and whether movable or immovable. ‘Damage’ means injury to a person or damage to property and includes economic loss, but not damage to the product or consequential economic loss unless such loss is associated with other damage. ‘Person’ refers to both legal and natural persons. [Art. 2] The persons liable are the manufacturers of a finished product or a component part, producers of natural product, suppliers of a product, and other persons including repairers and warehousemen in the ‘commercial chain of preparation or distribution of a product’. [Art. 3] The applicable law will be: (1) The internal law of the place of injury if that place is also the place of the habitual residence of the person of the person directly suffering damage, or the principal place of business of the person claimed to be liable, or the place where the product was acquired by the person directly suffering damage [Art. 4]; (2) Notwithstanding what is stated above, the applicable law will be the internal law of the state of the person directly suffering damage if that state is also either the place of principal place of business of the person claimed to be liable or the place where the product was acquired [Art. 5]; (3) If neither law of the applicable laws set out above applies, the applicable law will be the internal law of the state of the principal place of business of the person claimed to be liable (unless the claimant bases his claim on the internal law of the State of the place of injury). [Art. 6]

2.3 POSITION IN ENGLAND * Jurisdiction: Since an action on tort is an action in personam the English court acquires jurisdiction by the mere presence of the defendant within the jurisdiction or when under Order 11 Rule 1(h) of the Supreme Court Rules a writ can be served on the defendant out of jurisdiction.
In Distillers Co. (Bio-Chemicals) Ltd. v. Thompson, the plaintiff lodged an action in England on the ground that he suffered deformity and defective vision on account of sale of a drug by the defendants, a company incorporated in England through their New South Wales agents on account of their negligence not to warn the consumer that the drug has harmful effect on the foetus of an unborn child during the first three months of pregnancy. The drug was purchased and consumed by the plaintiff’s mother resulting in his deformity and loss of vision. The Privy Council said that it was not necessary that every ingredient of the cause of action should have occurred within the jurisdiction, nor was it necessary, or sufficient, that the last ingredient, i.e., that which completed the cause of action, should have occurred within the jurisdiction; what was necessary was that the act, or omission, on the part of the defendant which gave the plaintiff his cause of complaint should have been performed within the jurisdiction. In this case, according to Lord Pearson, the act complained of was the failure to give a warning that the drug would be harmful if taken during the first three months of pregnancy. Since this warning was not communicated to the consumers in New South Wales where the drug was taken, the cause of action arose in New South Wales. Lord Pearson was of the view that the cause of action arose within the jurisdiction if the act on the part of the defendant, which gives the plaintiff his cause of complaint, had occurred within the jurisdiction.

* Choice of Law: The foundation of the English rule of choice of law is still the following passage in the decision of the Court of Exchequer Chamber in Phillips v. Eire: “As a general rule, in order to found a suit in England, for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England; Secondly, the act must not have been justifiable by the law of the place where it was done. * First Part of the Rule: Actionable as Tort According to English Law: The Brief facts of Phillips v. Eire are: In 1865 there was an insurrection in Jamaica and the Governor, Edward Eyre, proclaimed martial law and called out the force to suppress it. During these days Phillips was arrested in the house, handcuffed, put on board a ship and taken away. After the insurrection was suppressed, the legislative council of Jamaica passed an Act of indemnity saving Governor Eyre from any liability for what was done in suppressing the revolt. Governor Eyre returned to England. Phillips has already returned. On an action for assault and false imprisonment by Phillips against Eyre in English Court, Eyre, inter alia, pleaded the act of indemnity as an answer to action. This plea was sustained by the Court of Exchequer Chamber. In sustaining the plea and in meeting plaintiff’s argument that Jamaican Act cannot have any extra-territorial validity, Wills, J. said that civil liability arising out of a wrong derives its birth from the law of the place and its character is determined by that law. Therefore, an act committed abroad, if valid and unquestionable by the law of the place, cannot so far as civil liability is concerned, be drawn in question elsewhere. Should this double test be retained: What is the precise meaning of ‘actionable’ in England? Some writers have tried to twist the meaning of ‘actionable’ so as to mitigate the rigour and ill-foundedness of the rule. Cheshire says that position could be alleviated by a liberal construction of the rule itself. “it might, for instance, be taken to mean no more than that the lex fori must recognize a type of liability roughly similar to that for which the plaintiff seeks remedy.” Professor Yntema says that Wills, J. in formulating the first limb of the rule had in this mind the question of jurisdiction and in that context he used the word ‘actionable’; he did not mean to use it in the sense of substantive liability. Whatever might be the criticism, the House of Lords decision in Boys v. Chaplin which is mainly concerned with the second part of the rule, has not been critical of the first part of the rule. In fact, Wilberforce, L.J. specifically said: ‘I am of opinion, therefore, that, as regards the first part of this rule, actionability as a tort under and in accordance with English law is required.” * Second Part of the Rule: Not Justifiable According to the lex loci delicti: The formulation of this proposition was made in Phillips v. Eire. The meaning, or rather the interpretation, of the word ‘justifiable’ has been giving trouble for now almost a century. It appears that the real mischief was done by the decision in Machado v. Fontes which has now been overruled by the House of Lords in Boys v. Chaplin and without a spill-over.

In Machado v. Fontes, the plaintiff Machado sued defendant Fontes in an English court for a pamphlet published in Brazil containing libelous material against him (plaintiff). Under the then law of Brazil publication was not actionable in civil proceedings, though it was probably subject to criminal proceedings. It was obviously actionable as tort by English law. The main defence of the defendant was that the publication was not actionable by the law of Brazil. Rejecting this plea the court said that the two conditions laid down in Phillips v. Eire are fulfilled in as much as the first condition was fulfilled because the libel was of such a character that it would have been actionable if committed in England, and the second condition was fulfilled because it was not justified by the law of Brazil, since it was not an innocent act there but subject to criminal proceedings. Ever since this decision has been pronounced, it has been subject of criticism.

In the case of Boys v. Chaplin both the plaintiff, Boys, and the defendant, Chaplin, were members of Her Majesty’s Armed Forces and were stationed on duty at Malta. There, in Malta, the plaintiff suffered serious injuries in a road accident on account of the negligence of the defendant. Both parties were normally resident in England and the action was filed in the English court on their return duty at Malta. The act of the defendant constituted tort both under the Law of Malta and under English law. The question before the court was: What is the law applicable to assessment of damages? Under English law Boys was not only entitled to receive expenses and money loss, but also to the compensation for pain and suffering and loss of amenities in life, while according to the law of Malta he was entitled to receive only expenses and his money loss and nothing whatever for his pain and suffering and loss of amenities. The main question before the Court of Appeal and House of Lords was whether Boys could claim damages under the head pain and suffering’ and loss of expenses and money loss? What, it is submitted, seems to have bothered the English judges was that if the former law was applied, Boys was entitled to damages worth £ 53 only which was nothing considering the seriousness of his injuries, but if the latter was applied he was entitled to damages worth £ 2,250. Some of the judges have approached the matter from the standpoint whether the heads of damages are to be treated as matters of substantive law or of remedial or procedural law. Of the three judges in the Court of Appeal and the five judges of the House of Lords, Diplock, L.J. is the only judge who came to the conclusion that Boys should get only £ 53 as damages, while all other judges, though on different reasoning, came to conclusion that he should get £ 2,250 as damages, Diplock, L.J., by what Wilberforce, L.J. calls, purely legal analysis, took the view that heads of damages are part of substantive law and are, therefore, governed by the lex loci delicti commissi. The learned judge, after lending his support to the proposition that damages should be recoverable for a wrongful act committed out of England only if it is actionable by the law of England and by the lex loci delicti commissi, holding that Machado v. Fontes was wrongly decided on that count, and being confronted by the argument that once the double actionability rule was satisfied recovery of damages is merely the remedy granted by the court for the wrong and accordingly all questions of assessment of damages are governed by the lex fori.
In the result the House of Lords decision overrules Machado v. Fontes and lays down that an action on a foreign tort will be maintainable if the act is tort under English law and it is also actionable in foreign country where it was done. It also seems to lay down that the general rule of choice of law is that the lex loci delicti commissi should apply, though in those cases where the tortious act is committed in more than one country that law may be applied with which parties are most intimately connected.
The importance of these decisions lies in that it clarifies two things: (a) That the first rule laid down in Boys v. Chaplin is the rule of choice of law and that qualification of damages and all other matters will be governed by lex delicti. (b) If there is a contract of service between the parties during the course of which accident took place the contract is only relevant to the claim in the tort in so far as it does, on its true construction in accordance with the proper law of the contract, have the effect of excluding or restricting the claim on tort.

* Defences:
In an English action on a foreign tort double defences are available to the defendant: (i) Any defence, whether substantive or procedural under the lex fori. (ii) Any defence under the lex loci delicti with the exception on purely procedural defences. In Phillip v. Eire apart from the general rule propounded by Willis, J. it is evidently a case of defence available to the defendant under the lex loci delicti commissi. The case is an authority for the proposition that if the defendant is excused from his liability for the wrong by a retrospective law passed by the country where the tortious act was committed, then the English action against him would fail. The defendant can also avail of any defence available to him under the lex loci delicti commissi at the time of the commission of the act.

2.4 POSITION IN INDIA
The Indian private international law relating to torts is in a nascent stage of development. It seems to be evident that as to the jurisdiction of the court, the rules laid down in the Code of Civil Procedure will apply. Section 19 of the Civil Procedure Code runs: “Where a suit is for compensation for wrong done to the person or to the movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.” It seems that in a case where a suit for compensation is filed for a tort committed abroad, the Indian court will entertain an action against a defendant who resides, carries on business or personally works for gain in India. The residence will also include the presence of the defendant within the jurisdiction of the court. In short, the courts are free here also to give a wide meaning to the word ‘residence’. Thus in a pre-independence case the Privy Council held that the court at Quetta has jurisdiction to entertain an action against a defendant who resides in Punjab and carried on business in Quetta in respect of a tort committed by him in Persia. CHAPTER 3
Conclusion
The Conflict of laws problems can arise in the field of torts in a number of situations. To take just tow examples, the problem can arise if the act causing injury is committed outside the country and proceedings are brought in the country, or if the act is committed outside the country but the effect of the act is experienced in the country. Two systems of law can, in theory, be chosen as the applicable law in a case of tort, the lex fori, and the lex loci deliciti commissi. Either solution is not wholly satisfactory. If the lex fori is adopted, it has the advantage of simplicity, as there is no need to ascertain where the tort took place, or to prove the law of the country where the act occurred. The selection of the lex fori is, however, arbitrary, and even unfair if a tort took place in a foreign country and the victim is also a national of that country who would expect a solution based on a law with which he is familiar and may result in forum shopping, particularly in federal countries. In most situations, the application of the lex loci deliciti commissi is the fairest solution, and accords with what may be regarded as the legitimate expectations of the parties, but in certain cases, that law may be purely fortuitous.

Bibliography

* Atul M. Setalvad, ‘Conflict of Laws’, 2nd Edition, Lexis Nexis Butterworths Wadhwa, Nagpur, Reprint 2011.

* Paras Diwan, Peeyushi Diwan, ‘Private International Law’, 4th Edition, Deep & Deep Publications, New Delhi, 1998.

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[ 2 ]. (1971) 1 All E.R. 694.
[ 3 ]. (1870) L.R. 6Q.B. 1.
[ 4 ]. (1870) L.R. 6 Q.B. 1.
[ 5 ]. (1969) 3 W.L.R. 322.
[ 6 ]. (1897) 2 Q.B. 231.
[ 7 ]. Haveli Shah v. Painda Khan, (1926) 96 I.C. 887.