Page:Harvard Law Review Volume 32.djvu/752

716 7i6 HARVARD LAW REVIEW rule and the rule laid down by most writers on private international law.2* Some Continental countries have applied the law of the juris- diction of the offending ship, in cases of collision at sea.^ The case of The Middlesex presents an additional fact to those in La Bourgogne, namely, that the deceased was aboard the innocent vessel, and that the two vessels were from different jurisdictions. The court in deciding that case apparently relied on a dictum by Mr. Justice Brad- ley in The Scotland,^'' to the effect that if a collision between two vessels of different nationality was being adjudicated in a court of a third juris- diction, the court woiild apply the law of the forum since it would not be fair to choose between the laws of the jurisdictions of the vessels. It is to be noted that this dictum was not overruled by the decision in La Bourgogne, since the fact that the deceased was on board the offending ship made it unimportant what the ship collided with. It is submitted, however, that the decision in The Middlesex, that the owners of the offending vessel are not liable for these deaths, is not sound. As has been pointed out, the law governing torts is the law of the place where the injury occurred. And that place, in the principal case, was the ship on which the deceased was riding.^^ Or it might be proper for the court to apply the law of the jurisdiction of the offending vessel on the ground that it could not complain if held liable under its own law.^^ The death statutes in either state, in the principal case, although differing as to the measure of damages, would have allowed recovery.^" Even applying Mr. Justice Bradley's dictum, the same result would follow. The suit was brought in a federal court. Hence the law of the forum, in the absence of legislation by Congress, must be the state law,^^ and the court is again driven to a choice between the laws of the two states. The necessity of such a choice should not justify denial of all recovery for this greatest of all injuries. It should be the policy of the courts to ex- tend rather than resUict the operation of death statutes. Right of a Public Utility to Cease Operation and Dismantle its Plant without Consent of the State. — At an early date our law recognized that where one devotes his property to a pubUc service such property becomes affected with a public interest and ceases to be juris 2* See Minor, Conflict of Laws, § 194; Bar, International Law (Gillespie's Trans.), 360, note 2. ^ That is the rule in France: 19 Clunet, 153 (Cass., 4 November, 1891). And in Ger- many: 14 Steuffert, 335 (Sup. Ct. of Berlin, 25 October, 1859). Bar lays down the rule that recovery in case of collision at sea is limited by the laws of the jurisdictions of both the claimant and the offending vessel. Bar, 489-90. " 105 u. S. 24, 29 (1881). ^ United States v. Davis, 2 Sumner (Circ. Ct.) 482 (1807). estate of an insolvent was being administered, the right of a creditor from another state could be limited by the law of his state whether or not there was such a Umitation in the law of the forum. 3" Maine Rev. Stat., 1903, c. 89, §§ 9, 10; Mass. Acts of 1907, c. 375. The offend- ing vessel was domiciled in Massachusetts. '1 Western Union Tel. Co. v. Call PubUshing Co., 181 U. S. 92 (1901). See i Beale, Conflict OF Laws, Part I, § 112 a.
 * 9 In Whipple v. Thayer, 16 Pick. (Mass.) 25 (1834), it was held that where the