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Concepts of strict and absolute liability and the ranking of liability in terms of relative exposure1 to risk*

Published online by Cambridge University Press:  07 July 2009

L.F.E. Goldie
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In this study theories which perceive the law's main goal to be instrumental in wealth creation, in the sense that legal rules should be formulated so as to be conducive to efficiency (and hence increase the wealth of a society), will be contrasted with perceptions of law as the continuous balance between political choices whose purpose is to advance justice, including distributive justice, as equality. These values are recognized, not as prudential or utilitarian, but as categorical. An apparent characteristic of doctrines which perceive the role of law as enhancing wealth in that they necessarily accept, as given, the contemporary values of distributive justice. In addition to this Panglossian quality, they have also raised doubts regarding welfare theories of social cost, “externalities” which provide the bedrock foundation of emerging theories of liability for harms due to scientific and technological innovations. These critics of social cost theories question the attribution of causation, and thus of costs, as a matter of logical or social necessity to any enterprise or conduct. Their question is “what is a cost of what activity?” This has been paraphrased, for example by Calabresi, as: “Is a pedestrian-auto accident to be attributed to driving or walking?” The welfare economists, in opposition to this relativism, argue that protean “transaction costs”, or “information costs” justify intervention in the name of amelioration. In this way the legislatures and the judges are called upon to intervene in the name of that same efficiency which was also standard to the conservative opponents of strict and absolute liability.

Type
Symposium on State Responsibility and Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law
Information
Netherlands Yearbook of International Law , Volume 16 , December 1985 , pp. 175 - 248
Copyright
Copyright © T.M.C. Asser Press 1985

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References

2. For a cogently reasoned presentation of the point of view that economic analysis does not and cannot reflect “aspects of our moral and psychic reality”, see Markovits, R., “Legal Analysis and the Economic Analysis of Allocative Efficiency”, 8 Hofstra L Review (1980) p. 811Google Scholarpassim and especially pp. 891–2.

3. Calabresi, G., “The Decision for Accidents: An Approach to Nonfault Allocation of Costs”, 78 Harv. L Rev. (1965) pp. 713, 725–42.CrossRefGoogle Scholar

4. Calabresi, loc. cit., n. 3, at p. 725.

5. Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, Annex VII, Establishment of a Regime for the Exploration and Exploitation of the Sea-Bed, Proposals Submitted by France, GAOR Twenty-Fifth Session, Supp. No. 21 at p. 185 (UN Doc. A/8021) (1970). This French Proposal was first issued as UN Doc. A/AC.138/27 (hereinafter cited as Annex VII).

6. Ibid.

7. Ibid.

8. Ibid., p. 186.

9. Ibid.

10. Goldie, L.F.E., “Responsibility and Liability in the Common Law”, in Legal Aspects of Transfrontier Pollution, OECD Environmental Directorate (1977) p. 306.Google Scholar

11. UN Publication Sales No. E.83 V.5 (1983).

12. See, for a similar distinction, Articles 1 and 12, Convention on International Liability for Damage Caused by Space Objects, 9 October 1973, 24 UST p. 2389, TIAS No. 7762. This treaty was approved by the United Nations General Assembly on 29 November 1971, by the following vote: 83 yes; 0 no; 16 abstentions; no absences: GA Res. 2777, GAOR, Twenty-Sixth Session, Supp. No. 29 at p. 25 (UN Doc. A/8528) (1971).

13. An enterprise operating within a legal order may become lawfully engaged in an economically necessary and socially beneficial activity, yet create hazards for which it should be held responsible. Hence it will be viewed as liable should its products, procedures or activities cause harm to persons who were viewed as potential consumers, or as those with whom such products, procedures or activities could have been contemplated as coming into contact.

14. Goldie, , Responsibilty and Liability, p. 344.Google Scholar

15. For an outline of many civil lawyers' distinction between the “primary norms” prescribing substantive rights and duties and the “secondary norms” applying sanctions, including reparations, for the breach of the primary norms, see Ross, A., A Textbook of International Law (London 1947) p. 241Google Scholar, and On Law and Justice (London 1958) pp. 209–10Google Scholar. See also Ago, R., “Le délit international”, 68 Hague Recueil (1939) p. 415Google Scholar. This distinction guided Professor Ago's (as Judge Ago then was) many reports on State Responsibility for the International Law Commission. For a discussion of these Reports, see Goldie, , “State Responsibility and the Expropriation of Property”, 12 Int'l Lawyer (1978) p. 63.Google Scholar

16. Ibid.

17. See R.Q. Quentin-Baxter, Preliminary Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/334 and Add. 1 and 2, ILC Yearbook 1980, vol. 2, part 1, p. 247 and 248, where he wrote (para. 4): “The present title stems from the generic contrast between obligations that arise, respectively, from wrongful acts and others from acts which international law does not prohibit; but the specific context in which the topic is discussed has always been that of environmental hazard, caused by human activity and maginified by modern industrial and technological needs and capacities.”

See also ibid. at pp. 250–2 (paras. 10–18) for his explanation of the terms that he was intending to use in his future reports for the Commission.

18. Report of the International Law Commission on the Work of its Twenty-Fifth Session, 7 May — 13 July 1973, para. 38, ILC Yearbook (1973) vol. 2, pp. 161, 179Google Scholar. See also ILC Yearbook (1973) vol. 1, pp. 13–14 (1204th meeting).Google Scholar

19. Prosser, W., The Law of Torts (St. Paul 1971) 4th ed., para. 58 at p. 457.Google Scholar

20. Goldie, , “Liability for Damage and the Progressive Development of International Law”, 14 ICLQ (1965) p. 1189, at 1212–3CrossRefGoogle Scholar. See also Goldie, , “International Principles of Responsibility for Pollution”, 9 Col. J. Transn. L. (1970) p. 283Google Scholar (hereinafter cited as “Goldie, Responsibility for Pollution”).

21. 26 NY 2d 219, 257 NE 2d 870, 309 NY Supp. 2d 314 (1970).

22. 55 Misc. 2d 1023 (NY App. Term. 1968).

23. Per Judge Bergen, 26 NY 2d 219, 223 (1970).

24. Ibid. p. 228.

25. Ibid. p. 230.

26. Per Judge Jasen, Ibid. p. 232 (footnotes omitted).

27. Ibid. p. 231.

28. See infra, notes 55–81 and the accompanying text.

29. Fleming, J., An Introduction to the Law of Torts (Sydney 1967) pp. 158–9.Google Scholar

30. Prosser, op. cit., n. 19, para. 75 at p. 495.

31. Guido Calabresi has been the most prominent advocate of the notion that strict liability deters accidents. See Calabresi, G. and Hirschof, J., “Towards a Test for Strict Liability”, 81 Yale LJ (1972) p. 1055CrossRefGoogle Scholar. See also Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis (1970)Google Scholar. Calabresi asserts that “optimal deterrence — the minimization of the sum of accident costs and accident prevention costs” is best achieved when liability is assessed against the party who is best able to choose between allowing an accident to happen and prevention: Calabresi, , “Optimal Deterrence and Accidents”, 84 Yale LJ (1975) pp. 656, 671CrossRefGoogle Scholar. When correctly applied, so Calabresi notes, strict liability facilitates optimal deterrence by compelling performers of hazardous activites to prevent accidents where it is economically feasible: ibid. at pp. 666–7. He also observes that traditional negligence fails to provide optimal deterrence where risk-takers may avoid liability through gaps in causal relationships, assumption of the risk or other defences: ibid. at p. 663.

On the other hand, see O'Connell, J. and Henderson, R., Tort Law, No-Fault and Beyond (1975) p. 621Google Scholar, where the following observation, germane to Calabresi's position, was made:

”In the nature of things, Calabresi's theories do not easily lend themselves to empirical verification or refutation, but the American National Commission on State Workmen's Compensation Laws attempted to test his theories in one particular area. The Commission studied the industrial accident levels in States with very different levels of workmen's compensation benefits. On the basis of economic theory it might have been supposed that in states where the benefits and therefore the premiums were higher, employers would take more care (and spend more money) to minimize accident costs by keeping the accident levels as low as possible. However, no systematic relationship was discovered between accident levels and benefit levels. Even when comparisons were made between States with similar industrial backgrounds there was not observable correlation between accident levels and benefit levels. For example, Virginia, Georgia and Alabama had similar benefit levels but widely different accident levels; while Pennsylvania and New Jersey had very similar accident levels but vastly different benefit levels. The Commission concluded that the evidence suggests that ‘workmen's compensation insurance rates are not the strongest force affecting the frequency of accidents’ ” (footnotes omitted).

But be the above-quoted study as it may, it is too specialized as to subject-matter and limited as to scope to refute Calabresi's broad thesis which seems unassailable in theory, and so should be left to stand unless and until it is discredited by empirical proof in all areas and sectors where strict liability is applied, for Calabresi's thesis would seem to be borne out by common experience in the area of consumer protection.

32. See supra ch. 2.1.

33. Goldie, , Book Review, 1 J Mar. L & Com. (1969) p. 155 at 162.Google Scholar

34. For a discussion of “amenities rights” see Goldie, , “International Principles of Responsibility for Pollution”, 9 Col. J Transn. L (1970) pp. 283, 325–7Google Scholar; the same, “Amenities Rights — Parallels to Pollution Taxes”, 11 Nat. Resources J. (1971) p. 274.Google Scholar

35. As Marshall Pétain said, in 1916, justifying his order for the indiscriminate decimation of the defenders of Verdun—mutineers and heroes alike.

36. The Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970, Mich. Comp. Laws Ann. paras. 691.1201 to 691.1207 (1970).

37. See the testimony of Joseph L. Sax before the Committee on Conservation and Recreation, House of Representatives of Michigan, on HB 3055 at 1, 21 January 1970 (mimeographed material). See also the testimony of Joseph L. Sax before the Committee on Commerce of the United States Senate Subcommittee on Energy, Environment and Natural Resources on S.3575, 13 May 1970, passim (mimeographed material).

38. Mishan, E.J., “The Spillover Enemy”, 33 Encounter (12 1969) p.3 at p.9Google Scholar. At note 1, Dr. Mishan limits his proposals to those spillovers whose effects become immediately obvious. He writes: “I disregard here the veritable wilderness of ecological consequences of man's shortsighted interference with nature …”

39. Although a fetish seems to have developed for measuring a nation's virility by its “gross national product”, one may be very skeptical of both the means of measuring it and what is, in fact, measured. For, the gross national product measurement really tells us nothing more than how busy a community or a country is. For example, in the United States one calculates into a determination of our gross national product such activities of questionable basic value to our society as sending vast truckloads of frozen dinners from New York to California. How can this sort of thing be seriously accepted as evidence of the value of economic development or of a community's rational and optimal allocation of its resources? Furthermore, contemporary calculations of gross national product do not include any subtractions for pollution, the erosion of the countryside and the beauties of nature, or the blight of cities. Hence, it is not at all indicative of any meaningful evaluation of the quality of life and leadership a society may provide.

40. Convention on International Liability for Damage Caused by Space Objects, 9 October 1973, 24 UST 2389, TIAS No. 7762. This treaty was approved by a Resolution of the United Nations General Assembly on 29 November 1971 by the following vote: 83 yes; 0 no; 16 abstentions; no absences. GA Res. 2777, UN GAOR, Twenty-Sixth Session, Supp. No. 29 at p. 25 (UN Doc. A/8528) (1971).

41. 42 LQR (1926) p. 37.

42. This doctrine has also been favored by the American Law Institute, see Restatement of Torts, Second (1972) para. 519 (General Principles, 5206 Factors to be Considered in Determining whether an Activity qualified as an “Abnormally Dangerous Activity”). See also, 520 Comment g. For a comparison of the rule of Rylands v. Fletcher with the doctrine of ultrahazardous activities, see Goldie, “Liability for Damage”, loc. cit., n. 20, pp. 1200–7. It should be pointed out that the exculpatory situations are fewer under the ultrahazardous activities doctrine than under the rule in Rylands v. Fletcher. See, supra, Restatement, Torts (Second) paras. 519, 520.

43. I.e., in this article the term “absolute liability” is given more specific connotation than it is given in McDougal, Lasswell and Vlasic — which includes the rule in Rylands v. Fletcher within the meaning of this term (in fact the rule (1868) 3 H.L. p. 338, for which Rylands v. Fletcher is justly famous was formulated, not in the House of Lords, but by Blackburn J. in the Court of Exchequer Chamber in Fletcher v. Rylands (1866) 1 Ex. p. 265 at 278, where he said: “We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”

44. This was the term used in the English version of the Explanatory Memorandum of the Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960 (the treaty in OEEC Doc. No. C (60) 93), 8 European Yearbook (1960) pp. 225, 231Google Scholar (hereinafter cited as “Explanatory Memorandum, Paris Convention”). The French equivalent, in the Explanatory Memorandum, Paris Convention, is “objective”, 8 European Yearbook (1960) p. 230.Google Scholar

45. For stipulated meanings of “strict” and “absolute” as describing measures or gradations of liability see, in addition to note 41 and the accompanying text, supra, Goldie, “Liability for Damage”, loc. cit., n. 20, pp. 1215–6, and Goldie, “Responsibility for Pollution”, loc. cit., n. 20, pp. 306–12.

46. See Goldie, “Liability for Damage”, loc. cit., n. 20, p. 1215.

47. Goldie, “Responsibility for Pollution”, loc. cit., n. 20, p. 317.

48. For a more complete discussion of some representative conventions on liability for nuclear harms, see Goldie, “Liability for Damage”, loc. cit., n. 20, pp. 1241–3. Some exemplary agreements on nuclear energy are: Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960 (OEEC Doc. No. C (60)(93))8 European Yearbook (1960) p. 202 (hereinafter cited as “Paris Convention”); Convention on the Liability of Operators of Nuclear Ships, Brussels, 25 May 1962, 57 AJIL (1963) p. 268; Developments in the Law of the Sea, 1958–1964, British Institute of International and Comparative Law, Special Publication No. 6 (1965) p. 196 (hereinafter cited as “Brussels Convention on Nuclear Ships”); Convention Supplementary to the (OEEC) Paris Convention, 1960, Brussels, 31 January 1963 (hereinafter cited as “Brussels, 1963 Supplementary Convention to Paris Convention”), 2 ILM (1963) p. 685; International Convention on Civil Liability for Nuclear Damage, Vienna, 21 May 1963 (IAEA Doc. No. CN-12/46 (1963)), 2 ILM (1963) p. 727 (hereinafter cited as “Vienna Convention”).

In addition to these agreements a number of bilateral agreements have been negotiated, for example, those negotiated by the United States with port States which were visited by the civilian Nuclear Ship, Savannah, and similar bilateral agreements negotiated by the Federal Republic of Germany with regard to the nuclear ship, Otto Hahn. In addition, OECD/NEA set up a working party in 1971 which drafted a Model Agreement on Visiting Nuclear Ships. It should be noted, moreover, that for a considerable period, now, both the Savannah and the Otto Hahn have not been in service.

49. For a discussion of “channelling” see, Goldie, “Liability for Damage”, loc. cit., n. 20, at pp. 1215–8.

50. Illustrative of the limitations which its many exceptions place on the Anglo-American common law rule in Rylands v. Fletcher is the fact that Winfield lists eight such possible exceptions: Sir Winfield, P., Tort, 7th edn. (London 1963) pp. 449–63.Google Scholar

51. Explanatory Memorandum, Paris Convention, para. 48, 8 European Yearbook (1960) p. 249. And see Secretariat of the International Atomic Energy Agency, Article by Article Comments on the Draft International Convention on Minimum International Standards Regarding Civil Liability for Nuclear Damage (IAEA Doc. No. CN-12/2). International Atomic Energy Agency, Civil Liability for Nuclear Damage, Official Records, International Conference, Vienna, 29 April-19 May 1963, 77 (IAEA Doc. Legal Series No. 2) (1964), hereinafter cited as “Vienna Conference”, asserts at para. 56: “The absolute liability of the operator is not subject to the classic exonerations for tortious acts, force majeure, acts of God or intervening acts of third persons …”.

In the following section, para. 57, allowable exonerations are listed. These are the same as the exculpations in the OEEC Treaty quoted in the text and to which this note is attached. For a general study of the problems to which these treaties related see Cigoj, S., “International Regulation of Civil Liability for Nuclear Risk”, 14 ICLQ (1965) p. 809.CrossRefGoogle Scholar

52. Art. 9; and see 8 European Yearbook (1960) p. 249Google Scholar. The signatory States to the Paris Convention may eliminate even these exceptions to the operator's liability for purposes of their own domestic law; see Art. 9. Parties to the Vienna Convention may eliminate the exceptions “grave natural disaster of an exceptional character” from their national laws; see Art. 4(3)(b).

53. 8 European Yearbook (1960) p. 249.Google Scholar

54. Ibid. For a discussion of the even more rigorous imposition of liability for injuries on the earth's surface caused by launching objects into outer space, see Goldie, “Liability for Damage”, loc. cit., n. 20, at pp. 1246–8.

55. International Convention on Civil Liability for Oil Pollution Damage, 1969, 9 ILM (1970) p. 45. As of the time of this writing, 4 June 1985, the United States has not ratified this Convention.

56. See Brown, E.D., “The Lessons of the Torrey Canyon”, 21 Current Legal Problems (1968) pp. 113, 114CrossRefGoogle Scholar, for an indication of this initiative. See also, for early discussions of this catastrophic grounding and the IMCO Civil Liability and Fund Convention arising therefrom, this writer's written and oral testimony before the Subcommittee on Oceans and International Environment of the Senate Committee on Foreign Relations in 1971 and 1973. See Hearings on Conventions and Amendments Relating to the Pollution of the Sea by Oil Before the Subcommittee on Oceans and International Environment of the Senate Committee on Foreign Relations, 91st Cong. 2d. Sess. (1971) at pp. 107 and 225 [hereinafter cited as Goldie, “Memorandum on 1969 Conventions”]; and Hearings on International Compensation Fund Before the Subcommittee on Oceans and International Environment of the Senate Committee on Foreign Relations, 93rd Cong., 1st Sess., (1973) at p. 195.

57. The British Merchant Shipping (Oil Pollution) Act 1971, ch. 59, clearly asserts, from the domestic law point of view, the rights and jurisdiction which international law accords to coastal States and which the Liability Convention, supra n. 55, is viewed as codifying.

58. See Healy, N., “The CMI and IMCO Draft Convention on Civil Liability for Oil Pollution”, 1 J Mar. L & Com. (1969) pp. 93–8Google Scholar, for an outline of this debate.

59. CMI Draft of an International Convention on Civil Liability for Oil Pollution Damage, Art. 2, 1969 CMI Documents 42.

60. See Maritime Law Association of the United States, Document No. 537, 30 April 1969, at 5779 (mimeo. material).

61. 1969 Liability Convention, supra n. 55, Art. 3, paras. 1–3.

62. Ibid., Art. 7, para. 2.

63. Ibid., Art. 7, para. 8.

64. That paragraph is as follows: “No liability for pollution damage shall attach to the owner if he proves that the damage: (a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistable character, or (b) was wholly caused by an act or omission done with intent to cause damage by a third party, or (c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.”

And see the Explanatory Memorandum of the 1960 Convention on Third Pary Liability in the Field of Nuclear Energy, loc. cit., n. 44, at p. 233.

65. 11 ILM (1972) p. 284.

66. See Goldie, , “General View of International Environmental Law: A Survey of Capabilities, Trends and Limits”, Hague Academy of International Law 1973 Colloquium: The Protection of the Environment and International Law (1975) pp. 25, 44–5.Google Scholar

67. Ibid., especially text accompanying footnote 33 at p. 45.

68. Art. 22. Note that the Convention sets both maximum and minimum numbers of States elected to the Executive Committee on the basis of those receiving “the largest quantities of oil to be taken into account under Article 10” See Art. 22.2(b).

69. Art. 23.1.

70. See Arts. 10, 11 and 12.

71. Art. 4.2.

72. Art. 4.3. Contrast the text accompanying this note and the last one with that accompanying note.

73. See Civil Liability Convention, Art. 3, 1–3. Two other IMO Conventions which were agreed upon in the 1970's relevant the vexed subject of liability for oil pollution damage and limiting the amount payable for catastrophic accidents arising form tanker groundings were the Protocol to the International Convention on Civil Liability for Oil Pollution damage, 19 November 1976, 16 ILM (1977) p. 617, and the Convention on the Limitation of Liability for Maritime Claims, 15 November 1976, 16 ILM (1977) p. 606.

74. Jacobsen, D. and Yellen, J., “Oil Pollution: The London Protocols and the AMOCC CADIZ”, 15 J. Mar. L. & Com. (1984) pp. 467, 470–80.Google Scholar

75. For a brief description of TOVALOP, see Jacobsen and Yellen, loc. cit., n. 74, pp. 471–2

76. For a brief description of CRISTAL, see Jacobsen and Yellen,, loc. cit., n. 74.

77. Circular Letter No. 958. Ref. Al/X/1.01.23, ILM (1984) p. 148.

78. Ibid., p. 149.

79. Jacobsen and Yellen, loc. cit., n. 74, p. 481. Fund Protocol Art. 6, para. 3(c). Note that Jacobsen and Yellen comment on this point: “Realistically, the United States would have to be one of the three Contracting States included in this threshold” Ibid., n. 92 at p. 481.

80. See Annex, 23 ILM (1984) pp. 148, 176.

81. 23 ILM (1984) pp. 148, 152. See also, supra, n. 71 for the identical language of the exculpatory provision of the 1969 Civil Liability Convention.

82. Jenks, C.W., “Liability for Ultra-Hazardous Activities in International Law”, 117 Hague Recueil (1966-I) p. 99.Google Scholar

83. ICJ Rep. (1969) p. 3, at pp. 49–50, 52.

84. See Aristotle, Nichomachean Ethics, Book V, ch. 10, J.K.K. Thomson transl. (1955). See also Maine, H.S., Ancient Law (1906) pp. 62–3Google Scholar. For similar statements with respect, specifically, to this function of equity in international law, see e.g., Hudson, M.O., International Tribunals Past and Future (Washington 1944) p. 103Google Scholar; the Diana (Master Gardner) case; Moore, J.B., International Adjudications (Modern Series) (1931) p. 333 at 342–3Google Scholar; Goldie, , “Reconciling Values of Distributive Equity and Management Efficiency in the International Commons”, Hague Academy of International Law 1982 Workshop: The Settlement of Disputes on the New Natural Resources (1983) pp. 335, 354–7.Google Scholar

85. For a full and extensive reference see Goldie, “Liability for Damage”, loc. cit., n. 20, at pp. 120–2, note 28.

86. [1932] A.C. 562, 580, H.L. But see Prosser's characterization of these words as “(t)he last forlorn attempt at some general statement” on the meaning of the study of care, Prosser, W., “Palsgraf Revisited”, Selected Topics on the Law of Torts (1953) p. 191 at 211Google Scholar (hereinafter cited as “Prosser, Palsgraf Revisited”). On the other hand, Sir Frederick Pollock was a major exponent of this criterion: see F. Pollock, chs. 1 and 2 and Excursus A: “General Principles”, Law of Torts 15th edn. (London 1951) pp. 3–46Google Scholar; Pollock, , “Liability for Consequences”, 38 LQR (1922) p. 165Google Scholar. For some modern assessments of it, see Fleming, J., The Law of Torts 2nd edn. (1961) pp. 10, 279, 282Google Scholar (hereinafter cited as “Fleming”); Harper, F. and James, F., The Law of Torts (1956) pp. 1134–5Google Scholar (hereinafter cited as “Harper and James”); Ehrenzweig, A.A., Negligence Without Fault (1951) pp. 55–6163–5, 86—7Google Scholar (hereinafter cited as “Ehrenzweig”); James, F., “Accident Liability Reconsidered: The Impact of Liability Insurance”, 57 Yale LJ (1948) p. 549CrossRefGoogle Scholar; Gregory, C., “Trespass to Negligence to Absolute Liability”, 37 Va. LR (1951) p. 359CrossRefGoogle Scholar; Leflar, R., “Negligence in Name Only”, 27 NYULR (1952) p. 564Google Scholar; Friedmann, W., “Social Insurance and the Principles of Tort Liability”, 63 Harv. LR (1949) p. 241.CrossRefGoogle Scholar

87. Goldie, , “Reconciling Values of Distributive Equity and Management Efficiency in the International Commons”, of the Hague Academy of International Law Workshop 1982, The Settlement of Disputes on New Natural Resources (1983) pp. 335, 354–7.Google Scholar

88. T. Cowan, “Some Policy Bases of Products Liability” (typescript of speech given at the Torts Panel, Saturday, 28 December 1963, Association of American Law Schools, 1963 Annual Meeting, Los Angeles) pp. 8–12, particularly p. 13 (hereinafter cited as “Cowan”).

89. Street, H., Governmental Liability (Cambridge 1953) pp. 66–7Google Scholar (hereinafter cited as “Street”).

90. Street, Ibid., p. 73; Schwartz, B., French Administrative Law and the Common Law World (New York 1954) p. 269.Google Scholar

91. But see, Comment, “Sovereign Responsibility and the Doctrine of Sacrifice” (Aufopferungsanspruch), 24 U. Chi. LR (1957) pp. 513, 514–17Google Scholar where the writer states (at p. 516–17): “The truly striking aspect of this expansion is the ruling that customary law expressed in these sections required recompense not only with respect to property encroachments but also for personal injuries the suffering of which constitutes a benefit to the community. Moreover, as the principal case indicates, the benefit to the community from plaintiff's sacrifice may be intangible indeed.” (Footnotes omitted.) At p. 518 the writer adds: “In French law the sacrifice doctrine is being carried to its logical extreme and comprehends, regardless of fault, most injuries traceable to governmental activity” (Footnotes omitted.)

92. Schermers, H.G., Judicial Protection in the European Communities 3rd edn. (1983) para. 483Google Scholar (footnotes omitted). But cf., Kautzor-Schroeder, K., “Public Tort Liability under the Treaty Constituting the European Coal and Steel Community Compared with the Federal Tort Claims Act” 4 Vill. LR (1958-1959) pp. 198, 230–3.Google Scholar

93. 60 Stat. 843 (1946), as amended, 28 U.S.C. paras. 2671–2680 (1982).

94. For the earlier cases upon which the transition from a property law to a tort law concept was based, see United States v. Lynah, 188 US 445 (1903). See also Yearsley v. W.A. Ross Construction Co., 309 US 18, 21 (1940); Hurley v. Kincaid, 285 US 95, 103–4 (1932).

95. 328 US 256 (1946).

96. (1946) 60 Stat. 842; (1958) 28 USC paras. 2671–2680.

97. Dalehite v. United States, 346 US 15, 45 (1953).

98. See e.g., United States v. Praylou (1953) 208 F.2d 291 (4th Cir.), cert, denied 347 US 934 (1954); Indian Towing Co. v. United States 350 US 61 (1955); Hess v. United States 361 US 314 (1960).

99. See cases, articles and comments cited in footnotes 215 and 216 in Goldie, Liability for Damage, loc. cit., n. 20, pp. 1246–8.

100. “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

101. Armstrong v. United States, 364 US (1960) pp. 40, 49; see also his dissent in Causby v. United States, 328 US (1946) pp. 256, 268; and see Hodgkins & Co. v. United States 318 F.2d 932 (Ct. C1. (1963)).

102. On the possible self-defeating limitations of the present formulation of Article 38.1.C of the Statute of the International Court of Justice in the modern age, see Judge Ammoun's Separate Opinion in the North Sea Continental Shelf cases, ICJ Rep. (1969) p. 3, at 132–5. Of particular interest is Judge Ammoun's approbation of the United States delegate Elihu Root's alternative formula of Article 38.1.C, of the Permanent Court's Statute (which Root suggested to the Committee of Jurists in 1920), namely “the universally recognized principles of law” ICJ Rep. (1969) p. 3, at 134.

103. R. Stammler defined his concept of the special community in the following terms: “The model of just law is the idea of a special community among those who must be controlled and determined according to the principles of just law. The material of doubt and dispute is furnished by the movements of social life. But our problem in all cases deals with the right conduct of definite persons whose distinct volitions stand opposed to each other. These persons who are now disputing and doubting must first be brought mentally into a community into which each one has to bring his disputed volition so that they may then be objectively adjusted” (Author's italics).

Stammler, R., The Theory of Justice, Husick, transl., Modern Legal Philosophy Series (1925) p. 215Google Scholar. Stammler thus saw his special community as a mental framework embracing the conflicting volitions and resolving their conflict by a regulation of the “just law”. Thus he writes, Ibid., at p. 217: “The parties disputing must be mentally formed into a special community; and in defining and adjusting it we must make use of the principles of just law.” (Author's italics). See also Ibid., at pp. 217–23 for his discussion of the question “Who is my neighbor?” Cf., Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580, H.L. Does the concept of “my neighbor” require my prior knowledge and foresight? See Ehrenzweig, op. cit., n. 86, p. 55: “Exposing the community to risk, rather than causation of the individual harm, has become the basis of liability in both fields [i.e., fault liability and strict liability], even in countries in which fault has been called ‘the mother of all enterprise liability’ ”. (Footnotes omitted).

104. See, supra, n. 21 and the accompanying text.

105. Fisheries Jurisdiction case (United Kingdom of Great Britain and Northern Ireland v. Iceland), ICJ Rep. (1974) p. 3, and Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland), ICJ Rep. (1974).

106. Fisheries Jurisdiction case (United Kingdom of Great Britain and Northern Ireland v. Iceland), ICJ Rep. (1974) p. 3, at 27–8. See also Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland) ICJ Rep. (1974) at p. 196.

107. Fisheries Jurisdiction case (United Kingdom of Great Britain and Northern Ireland v. Iceland), ICJ Rep. (1974) p. 3, at 30.

108. See, supra, text accompanying nn. 21–27 and n. 104. See also text to n. 185 post.

109. 3 RIAA (awards of 1938 and 1941) pp. 1905, 1938.

110. Hobbes, T., Leviathan (1651) p. 63.Google Scholar

111. ICJ Rep. (1949) p. 4.

112. ICJ Rep. (1949) p. 4 at 22.

113. 3 RIAA (awards of 1938 and 1941) pp. 1905, 1938.

114. The Preliminary Decision, Ibid., at p. 1911.

115. The Final Decision (11 March 1941), Ibid., at p. 1938. See, especially, its evaluation, Ibid., at p. 1950.

116. As was argued by Australia and New Zealand in the Nuclear Tests cases.

117. Read, J., “The Trail Smelter Dispute”, Can. YIL (1963) pp. 213, 223Google Scholar (hereinafter cited as “Read”). It is of interest to note that this author was a former member of the International Court of Justice. He was directly concerned with the Trail Smelter dispute at all stages: the settlement of the terms of reference to the International Joint Commission, as counsel before the Commission, the negotiation and drafting of the Trail Smelter Convention, and the special problems which arose and the way in which they were dealt with. Hence he was in a position to discuss some of the matters which do not emerge from examination of the decisions and the records. Ibid. at p. 213.

118. Ibid. p. 221.

119. Ibid. p. 217.

120. 3 RIAA (award of 1941) pp. 1938, 1962.

121. Ibid. pp. 1965–6.

122. Jenks, C.W., The Prospects of International Adjudication (London 1964) p. 408Google Scholar (hereinafter cited as “Jenks”).

123. Article 4, Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B.C., 3 RIAA (1949) p. 1907.

124. 3 RIAA, pp. 1938–9.

125. Read, loc. cit., n. 116, at p. 221.

126. Ibid.

127. Read, loc. cit., n. 116, at p. 222. Read's basis for this assertion was that “(t)he Stevens County farmer with very limited means could not fairly be expected to carry a lawsuit through the hierarchy of courts to the Privy Council in the faint hope that it would reject the rule laid down by the House of Lords in British South Africa Company v. Compania de Mozambique,” (1893) AC 602. In that case the Judicial Committee of the Privy Council (of Great Britain) found that trespass to land was a “local” not a “transitory” cause of action. Since the Lord Chancellor, Lord Herschell, stressed that the grounds for this refusal to exercise jurisdiction in actions of trespass to land abroad “were substantial and not technical”, ibid. at p. 629, this decision indicates that, at least for British Columbia at the time Judge Read wrote his article, jurisdiction of courts will be barred when the cause of action sounds in:

(1) A claim of title to, or a claim of possession of land outside the jurisdiction; or

(2) A suit for damages for trespass to land abroad.

128. Read, loc. cit., n. 116, pp. 222–3.

129. Ibid., p. 223.

130. (a) Nuclear Tests case, Request for the Indication of Interim Measures of Protection (Australia v. France), ICJ Rep. (1973) (hereinafter cited as “Nuclear Tests case Interim Measures (Australia)”); (b) Nuclear Test case, Merits (Australia v. France), ICJ Rep. (1974) (hereinafter cited as “Nuclear Tests case (Merits) (Australia)”); (c) Nuclear Tests case, Request for the Indication of Interim Measures of Protection (New Zealand v. France), ICJ Rep. (1973) p. 135 (hereinafter cited as “Nuclear Tests case Interim Measures (New Zealand)”); and (d) Nuclear Test case, Merits (New Zealand v. France) ICJ Rep. (1974) (hereinafter cited as “Nuclear Test case (Merits) (New Zealand)”).

131. See UNGA Res. 1379(XIV), GAOR Fourteenth Session, Supp. 16, at p. 3 (Doc. A/4354); and UNGA Res. 1652(XVI), GAOR Sixteenth Session, Supp. 17, at p. 4.

132. Note of 3 January 1973 from Australian Ambassador to French Foreign Minister, Application by Australia Instituting Proceedings, Annex 9, Nuclear Tests case, ICJ Rep. (1973) p. 50 (hereinafter cited as “Australian Application”). See also Letter of 9 March 1973 from New Zealand Prime Minister to French Foreign Minister, Application by New Zealand Instituting Proceedings, Annex III, Nuclear Tests case, ICJ Rep. (1973) pp. 72, 113 (hereinafter cited as “New Zealand Application”).

133. Note of 7 February 1973 from French Ambassador to Australian Prime Minister and Foreign Minister, Australian Application, supra n. 132, p. 52 at 57.

134. Australian Application, supra n. 132 at p. 26.

135. Australian Application, supra n. 132 at pp. 26, 27.

136. It asserted that an emerging rule safeguarding the environment and natural resources is being violated by the French atmospheric nuclear testing in that, inter alia:

(a) it violated the rights of all members of the international community, including New Zealand, that no nuclear tests that give rise to radioactive fallout be conducted;

(b) it violated the rights of all members of the international community, including New Zealand, to the preservation from unjustified artificial radioactive contamination of the territorial, maritime and aerial environment and, in particular, of the environment of the region in which the tests are conducted and in which New Zealand, the Cook Islands, Niue and the Tokelau Islands are situated;

(c) it violated the right of New Zealand that no radioactive material enter the territory of New Zealand, the Cook Islands, Niue or the Tokelau Islands, including their air space and territorial waters, as a result of nuclear testing;

(d) it violated the right of New Zealand that no radioactive material, having entered the territory of New Zealand, the Cook Islands, Niue or the Tokelau Islands, including their air space and territorial waters, as a result of nuclear testing, cause harm, including apprehension, anxiety and concern, to the people and Government of New Zealand and of the Cook Islands, Niue and the Tokelau Islands;

(e) it violated the right of New Zealand to freedom of the high seas, including freedom of navigation and overflight and the freedom to explore and exploit the resources of the sea and the seabed, without interferences or detriment resulting from nuclear testing.

See also New Zealand Application, supra n. 132, at p. 14–16.

137. Ibid., at p. 14.

138. Nuclear Tests case (Australia) (Interim Measures), ICJ Rep. (1973) at p. 100; Nuclear Tests case (New Zealand) (Interim Measures), ICJ Rep. (1973) p. 135, at p. 136.

139. Ibid.

140. ICJ Rep. (1973) pp. 99, 106.

141. ICJ Rep. (1973) pp. 99, 103. For a similar statement with respect to New Zealand's claim see ICJ Rep. (1973) pp. 135, 140.

142. For an indication of Australia's rights, as claimed by it, see ICJ Rep. (1973) p. 99, for claimed rights see ICJ Rep. (1973) pp. 135–40. See also supra n. 126.

143. See text accompanying n. 134 supra.

144. For coinage of this evocative and descriptive, if a trifle satirical, phrase, see Chang, B., “United Nations Resolution on Outer Space: ‘Instant Customary International Law’”, 5 IJIL (1965) p. 23Google Scholar (hereinafter cited as “Cheng”).

145. On the fallacies involved with relying on many, indeed most, Resolutions of the United Nations General Assembly as law: see: Cheng, last note; Jennings, R., “The United States Draft Treaty on the International Seabed Area-basic Principles”, 20 ICLQ (1970) p. 433CrossRefGoogle Scholar; Stone, J., Conflict Through Consensus (Sydney 1977);Google ScholarGoldie, , “International ‘Constitutionality’: State Sovereignty and the Problem of Consent”, in: Legal Change: Essays in Honor of Julius Stone (Sydney 1983) p. 316Google Scholar; Goldie, , “A Note on Some Diverse Meanings of ‘The Common Heritage of Mankind’”, 10 Syr. JIL & Com. (1983) p. 69.Google Scholar

146. Nuclear Tests case Interim Measures (Australia), ICJ Rep. (1973) p. 99 at 122. See also Nuclear Tests case Interim Measures (New Zealand), ICJ Rep. (1973) p. 135, at 156–7.

147. Nuclear Tests case Interim Measures (Australia), ICJ Rep. (1973) p. 99, at 126. See also Nuclear Tests case Interim Measures (New Zealand), ICJ Rep. (1973) p. 135, at 161.

148. See, supra, n. 133 and the accompanying text.

149. ICJ Rep. (1974) pp. 253, 265 and 266.

150. Ibid. p. 265.

151. Ibid. p. 265.

152. Ibid. p. 266.

153. Ibid.

154. Ibid.

155. Ibid. p. 268.

156. Ibid.

157. Ibid.

158. Ibid. p. 270. Inevitably the holding of the Permanent Court of International Justice in the Status of Eastern Greenland case with respect to the “Ihlen Declaration” comes to mind. See PCIJ Ser. A/B. No. 53 at p. 4.

159. Ibid. p. 272.

160. For a discussion of the obligation of “good neighborliness” in the present context see, supra, ch. 3.2.

161. French Note to Australian Prime Minister and Foreign Minister, 7 February 1973, Australian Applications Instituting Proceedings, Annex 9, Nuclear Tests case, ICJ Rep. (1973) p. 52 at p. 57.

162. That oft quoted paragraph is as follows: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

163. La Dictionnaire de la Terminologie du Droit International (“La Dictionnaire Basdevant”) (1960) p. 222, defines “dommage” (damages) as follows: “Prejudice materiel ou moral subi par un Etat, une collectivité publique ou une personne privée.”

.In the literature of public international law the term “moral damage” has traditionally included “violation of sovereignty”, see, e.g., Handl, G., “Territorial Sovereignty and the Problem of Transnational Pollution”, 69 AJIL (1975) p. 50 at 62–6.CrossRefGoogle Scholar

164. 3 RIAA (award of 5 January 1935) p. 1609.

165. (1873) 76 Parl. Papers (1874).

166. ICJ Rep. (1949) p. 4.

167. ICJ Rep. (1949) pp. 4, 35.

168. Handl, loc. cit., n. 163, pp. 65–6.

169. Ibid. p. 75. See also Schwartz, B. and Berlin, M., “After the Fall: An Analysis of Canadian Legal Claims for Damage Caused by Cosmos 954”, 27 McGill LJ (1982) p. 676 at 687–8 and 689–90Google Scholar, and especially at the latter citation where the authors wrote: “If the absence of an affront to sovereignty and the undesirability of international litigation are reasons for saying the intrusion of environmental pollutants causing no material harm is not actionable, the same reasons should apply to the case of satellite debris. A preliminary conclusion can be drawn that there is practically no support in policy or precedent for the theory that the unintended intrusion of satellite debris warrants, in the absence of material damage, recovery of even nominal damages.”

170. 12 RIAA p. 281, 53 AJIL (1959) p. 156.

171. 12 RIAA pp. 281, 303, 53 AJIL (1959) pp. 156, 160.

172. Oberlandesgericht (OLG) Saarbrücken 11 (1958) p. 752.

173. Rome, 25 March 1957, 298 UNTS 11, 51 AJIL (1957) pp. 865, 930.

174. 27 September 1968, 8 ILM p. 229, Common Market Reports No. 96, 19 November 1968.

175. Denmark, the Republic of Ireland and the United Kingdom have also signed the Convention on Accession to the 1968 Brussels Convention and the 1971 Protocol, signed 9 October 1978, 18 ILM (1979) p. 8, also in EC OJ 1978 L 304/1. The United Kingdom is statutorily part of the group, following the enactment of the Civil Jurisdiction and Judgments Act, 1982 Stat C. 27, 509–630.

176. No. 904 slip. op. at 571 (Ohio Ct. App. 24 April 1975).

177. 401 US 493 (1971).

178. Ibid. p. 503.

179. Ibid.

180. Ibid. p. 498.

181. Ibid. p. 505.

182. Ibid. p. 512.

183. 495 F.2d 213 (6th Cir.), cert. denied, 419 US 997 (1974).

184. 495 F.2d 213, 218 (6th Cir. 1974).

185. See, “First Canadian Suit Against Air Polluters in US Courts Ends”, 4 Can. Envtl. L News (1975) pp. 40, 41.Google Scholar

186. Supra, n. 21 and the accompanying text.

187. An example of this was provided in the background and problems of the Trail Smelter arbitration, namely the Constitutional provision of the State of Washington. See, infra, text accompanying nn. 127–9 raising the issue of the State constitutional rule prohibiting aliens from owning interests in land and thus precluding the Trail Smelter enterprise from purchasing a smoke easement. While this specific rule may not be germane today in many cases other, parallel local rules of public policy abound to inhibit equitable remedies from enjoying the free flow across State and national boundaries.

188. ILC Statute, UN Doc. A/CN.4/4 Rev. 1 (1962) (hereinafter cited as “ILC Statute”).

189. Briggs, H.W., The International Law Commission (New York 1965) p. 140Google Scholar (footnotes omitted). See also pp. 299–300.

190. These conventions are: Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, [1966] 1 UST 138, TIAS No. 5969, 559 UNTS p. 285 (effective 20 March 1966); Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, [1964] 2 UST 1606, TIAS No. 5639, 516 UNTS p. 205 (effective 10 September 1964); Convention on the Continental Shelf, 29 April 1958, [1964] 1 UST 471, TIAS No. 5578, 449 UNTS p. 311 (effective 10 June 1964); Convention on the High Seas, 29 April 1958 [1962] 2 UST 2312, TIAS No. 5200, 450 UNTS 82 (effective 30 September 1962).

191. Briggs, op. cit., n. 189, p. 141.

192. Goldie, “Liability for Damage”, loc. cit., n. 20, at pp. 1263–4. See also “Responsibility for Pollution”, loc. cit., n. 20, at p. 330.

193. Oppenheim, International Law, vol. 1, 8th edn., Lauterpacht, ed., (1955) p. 343Google Scholar. See also Sohn, L.B. and Baxter, R.R., Convention on the International Responsibility of States for Injuries to Aliens (Draft No. 12 with Explanatory Notes) (mimeo., 15 April 1961) pp. 43–4, 50–2, 171–6, 188–90Google Scholar. Compare Hardy, M., “International Protection Against Nuclear Risks”, 10 ICLQ (1962) pp. 739, 752–3.CrossRefGoogle Scholar

194. UNGA Res. 32/151 (19 December 1977), UN GAOR, Thirty-Second Session, Supp. No. 45 at pp. 214–5 (A/32/45).

195. Report of the International Law Commission to the General Assembly on the Work of its Thirty-Second Session, 5 May-25 July 1980, UN GAOR, Thirty-Fifth Session, Supp. No. 10, p. 361 “International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law”, at p. 363 (A/35/10).

196. Ibid. p. 365.

197. See articles cited, supra, n. 20.

198. See, supra, n. 48.

199. (1) International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 29 November 1969, 9 ILM (1970) p. 25; and (2) International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, 9 ILM (1970) p. 48.

200. International Convention on the Establishment of an International Fund for the Compensation for Oil Pollution Damage, 18 December 1971, II ILM (1972) p. 284.

201. See, for example, the Trail Smelter arbitrations, 3 RIAA (awards of 1938 and 1941) pp. 1905 and 1938.

202. International Convention for the Prevention of Pollution of the Sea by Oil, 12 May 1954, (1961) 3 UST 2989, TIAS No. 4900, 327 UNTS p. 3 (entered into force 8 December 1961). Amendments to the International Convention for the Prevention of Pollution of the Sea by Oil, 1954. Adopted, 11 April 1962, [1966] 2 UST 1523, TIAS No. 6109 (entered into force as to amendments to Arts. 1–10, 16 and 18 and Annexes A and B, 18 May 1967 and as to Art. 14, on 28 June 1967). Pollution Amendments, supra this note. See, “Two Conventions and Amendments Relating to Pollution of the Sea by Oil,” Message from the President, 20 May 1970, 91st Cong. 2d Sess., at pp. 29–32. See also 62 Dept. State Bull. (15 June 1970) pp. 756–7, 758–9.

203. ICJ Rep. (1982).

204. Ibid., at p. 105.

205. For a discussion of this important distinction see Goldie, “Reconciling Values of Distribution Equity and Management Efficiency in the International Commons”, loc. cit., n. 84, at pp. 335, 337–47.

206. Ibid. at p. 346.

207. Ibid. at p. 347.

208. See, e.g., Calabresi, G., “Some Thoughts on Risk Distribution and the Law of Torts”, 70 Yale LJ (1961) p. 499CrossRefGoogle Scholar, and Calabresi, G., The Cost of Accidents (1970).Google Scholar

209. For a critical review of this law-and-economics approach see, e.g., Horwits, M., “Law and Economics: Science or Politics”, 8 Hofstra L Rev. (1980) p. 905Google Scholar. In concluding his article Prof. Horwitz writes, at p. 912: “After twenty years of atte.Tipting to claim that they stood above ideology in their devotion to science, the practitioners of law and economics have finally been forced to come out of the closet and debate ideology with the rest of us”

210. Stone, J., Approaches to the Notion of International Justice (Truman Center Publication No. 4, 1970) p. 79Google Scholar. See also Goldie, “Distributive Equity”, loc. cit., n. 84 at pp. 335, 367–8, where this author has written: “Having pointed to the analogies between national and international justice-consituencies, Stone marks the differences. Above all there is the directness of mutuality of benefit and sacrifice within a national community. In the present state of world affairs this is to be contrasted with the diffuseness and long-term character of such a mutuality in the international community. Accordingly, Stone envisages the international anclave of justice as being in the penumbral borderlands of the enclaves of justice established within national communities; but as being pioneered from tendencies radiating out from those enclaves.”