I. CANADA
3.1 Reference has already been made, in par a 2.23 above, to the decision in Canada which have adopted the view that the Mozambique rule prevents the courts in one Province from taking jurisdiction not only when the issue concerns the title to or right to possession of land outside that Province, but also when the matter in dispute is an action for negligent damage to such land.
II. STATUTORY RESTRICTIONS OF THE RULE IN THE UNITED KINGDOM
3.2 In England, the House of Lords was invited in Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd1 either to overrule its earlier, decision in the Mozambique case, or at least not to apply it where there was no dispute as to title to foreign land, and no real dispute as to the right to its possession.2 The House, however, declined that invitation (for reasons which are discussed below, paras 5.1 et seq) and held, in what might be regarded as an extention to the Mozambique rule, that the rule applied even when, as occurred in the case, the plaintiff’s claim was for damages for a conspiracy (entered into in England) to effect or to procure trespass to land in Cyprus.
3.3 Subsequently the United Kingdom Parliament abrogated the effect of the Hesperides Hotels case, and restricted the rule of non-jurisdiction to those matters in which the principal issue is the right to possession of, or title to, foreign land, by the enactment of s30 of the Civil. Jurisdiction and Judgements Act 1982. Sub-section (1) thereof provides:
“The jurisdiction of any court in England and Wa1es or, Northern Ireland to entertain proceedings for trespass to, or any other tort affecting, immovable property shall extend to cases in which the property in question is situated outside that part of the United Kingdom unless the proceedings are principally concerned with a question of the title to, or the right to possession of, that property”
The sub-section, it will be observed, makes no reference to the jurisdiction of courts in Scotland. The reason doubtless lies in the fact that those courts, having had a different historical development from the courts of England, had no cause to adopt a denial of jurisdiction based on whether the action was “local” or “transitory”. The only limitation put upon the Scottish courts jurisdiction is that they “will not entertain an action whose primary purpose is to put in issue the defender’s title to foreign immovables”.3
3.4 The primary purpose of the United Kingdom Act of 1982 was to enable that country to ratify a Convention agreed on by the member states of the European Community relating to the jurisdiction of the courts of those countries, and the enforcement, within the Community, of judgments given by courts in other parts of the Community.4 However, in view of the unwillingness of the House of Lords, in its judicial capacity, to make any change to the Mozambique rule, the opportunity was also taken to enact s30.5
III. JUDICIAL DEVELOPMENTS IN THE UNITED STATES
3.5 Until relatively recent times, the position in most jurisdictions in the United States was the same as that in Australia (discussed at paras 2.20 to 2.23), in that the courts in one State would decline to take jurisdiction not only in matters affecting title to land in another State, but also in respect of damage done to land so situated. However, under the pressure of consistent academic and other extra-judicial opinion, it would appear that the law is tending to adopt a rule similar to that achieved by legislation in England, in which matters of title to or possession of foreign land are the only ones regarded as not justiciable.
3.6 The first settlers in the then American colonies brought with them the common law of England, including the distinction, for jurisdictional purposes, between local and transitory actions (referred to above, para 2. 17).6 Thus, in 1811, some 80 years before the House of Lords handed down its decision in the Mozambique case, the United States Circuit Court for the District of Virginia delivered an equally seminal judgment in Livingston v Jefferson.7 It was held that the court had no jurisdiction to hear an action for trespass alleged to have been committed by, or on the orders of, the then President of the United States to land in New Orleans.
3.7 That decision was regarded as formulating the law for State as well as Federal Courts, and applying to any action which was local in nature, despite the fact that the plaintiff’s right to possession of the land in question was not in dispute. Hence, in Brisbane v Pennsylvania Rail Road Co,8 a case decided in 1912, in which the plaintiff sought recompense for the allegedly negligent destruction by fire of his property situated in New Jersey, Cullen CJ, in the New York Court of Appeals, said:9
“ The authorities in the highest courts of this State are uniform to the effect that our courts have no jurisdiction of an action for damages for injuries to real estate lying without the State ...Such also is the rule in the great majority of the States”.
3.8 In the light of judicial pronouncements such as this, it is not surprising that the original Restatement of Conflict of Laws, adopted by the American Law Institute in 1934, stipulated as a general rule, in sec 614, that “no action can be maintained in one State to recover compensation for, a tr,espass upon or harm done to land in another State”.
3.9 But even at the time of the promulgation of the Restatement, the principle stated in sec 614 did not command universal support among the States of the Union. As early as 1896, the Supreme Court of Minnesota had held that an action in negligence for damage done to land outside the State was justiciable by its courts.11 Furthermore, the denial of jurisdiction in respect of local actions arising outside the State had been changed by statute in Virginia in 1819;12 similar legislation was subsequently passed in New York and Texas.13 And, although the court in Livingston v Jefferson had felt obliged by the weight of earlier English authority to arrive at its decision, at least Chief Justice Marshall was of the opinion that the rule of non-jurisdiction was anomalous, and might give rise to a “defect of justice”.14
3.10 In the period after the publication of the Restatement academic writers were generally opposed to the rule stated therein, and argued in favour of the courts taking jurisdiction in local actions arising outside the State, unless title or the right to possession were clearly in issue.15 the Supreme Courts in both Arkansas 16 and Missouri 17 also refused to follow the old rule, and accepted jurisdiction in relation to actions in negligence affecting interstate land, or other circumstances in which title was only incidentally in issue.
3.11 In the formulation of the Restatement, Second, of Conflict of Laws, the American Law Institute paid full regard to the criticisms which had been levelled at the rule of non-jurisdiction, such as that it was anomalous and an outmoded product of the historical development of the law, and that it acknowledging that, at the date of promulgation of the. Second Restatement in 1969, “the majority of courts have refused to entertain actions for trespass to foreign land ”18 the Institute sought to change this approach It declared, in sec, 87 that:
“A State may entertain an action that seeks to recover compensation for a trespass upon or harm done to land in another state”.
3.12, To date, only the Supreme Court 19 has adopted the principle advanced in the Restatement, and obiter comments are still to be found which acknowledge the continued existence of the “local action rule of common law as applied to complaints seeking money damages for trespass to land”.20 Such is the persuasive authority of the Restatement however that it may well be only a matter of time and the chances of litigation, before the views expressed in sec 87 come to be accepted among at least a majority of the States of the Union.
IV. NEW ZEALAND
3.13 The courts in New Zealand 21 have accepted the applicability in that country of the Mozambique rule in relation to matters brought under the New Zealand equivalent of the Family Provision Act 1982 (discussed below, para 4.8) and have also adopted22 the exception to the rule developed by the English Court of Chancery see below, para 4.4). There have been no moves, either by the legislature or the courts, to modify or restrict the application of the rule.
FOOTNOTES
1. [1979] AC 508.
2. See the arguments of counsel at 513, and the comments of Lord Wilberforce at 533.
3. A E Anton, Private International Law: A treatise from the standpoint of Scots Law (1967) at 125; see also, eg, Cathcart v Cathcart (1904) 12 SLT 182 at 184 per Lord Low.
4. For a commentary on the Convention see, eg, Michael Pryles and A Trindale, “The Common Market Convention on Jurisdiction and Enforcement of Judgments” (1974) 48 ALJ 185.
5. Hansard, House of Commons, 6th Series , Vol 20, Col 950. The clause was clearly not regarded as in any way controversial, since there was no debate on it in either House of the United Kingdom Parliament.
6. See, eg, the comment, “Venue Problems in Wisconsin” (1972) 56 Marquette Law Rev 73 at 87-89.
7. 15 Fed Cases 660; the report of the decision not available in this country, but it is discussed fully by the Supreme Court of Wisconsin in Mueller v Brunn 313 NW 2d 790 (1982) at 794-796.
8. 98 NE 752.
9. Id 753 .
10. Note though that the Restatement acknowledged a minor exception to this rule, in sec 615, stating that if an act were done in one State which caused injury to land in another State, an action could be maintained in either the former jurisdiction or the latter,
11. Little v Chicago, St Paul etc Rly Co 67 NW 846.
12. See the comment by Cullen CJ in Brisbane v Pennsylvania Railway Co 98 NE 752 at 7 5 3 and Kuhn, “Local and Transitory Actions in Private International Law” (1918) 66 U Pa L Rev 301 at 306, nl5.
13. See Kuhn id 306, nn 16 and 17.
14. See the discussion by the Supreme Court of Wisconsin in Mueller v Brunn 313 NW 2d 790 at 795, of the judgments in Livingston v Jefferson, note 7.
15. J H Beale, Conflict of Laws (1935), Vol 3 at 1652-1659; Hancock, M Torts in the Conflict of Laws (1942) at 95-100; A A Ehrenzweig, Conflict of Laws (1962) at 140-141.
16. Reasor-Hill Corp v Harrison 249 SW 2d 994 (1952) where an action for damage to crops in Mississippi caused by insecticide spray purchased in Arkansas was found justiciable in the latter States.
17. See the comment in Ingram v Great Lakes Pipe Line Co 153 SW 2d 547 (1941) at 550.
18. Restatement, Second, sec 87, comment a.
19. Mueller v Brunn 313 NW 2d 790 (1982).
20. Ramirez de Arellano v Weinberger 745 F 2d 1500 (US Court of Appeal, DC Cir 1984) at 1529. The court regarded the rule as inapplicable, since the plaintiff was seeking not the common law remedy of damages but the equitable remedy of an injunction to prevent the defendant, the US Secretary of Defence, from continuing to trespass on land in Honduras by operating a large military training camp thereon; the injunction was discharged in further proceedings: see 788 F 2d 762 ( 1986); see also People of the State of Illinois v City ofMilwaukee731 F 2d 403 (US Court of Appeals, 7th Cir, 1984) at 411, fn 3.
21. Re Butchart [1932] NZLR 125; Re: Bailey [1985] 2 NZLR 656.
22. Re Fletcher [1921] NZLR 46.
