Rand on conflict of laws: an independent voice.

• Author: McEvoy, John P.
• Position: Canada

INTRODUCTION

In 1909, at twenty-five years of age, Ivan Rand commenced studies at Harvard Law School, perhaps then the only place for the study of Conflict of Laws (also known as Private International Law). This commitment is easily traced (1) to the influence of its Dane Professor of Law, Joseph Story, who published the first edition of his famous treatise on the subject in 1834. (2) Through various editions, Story's Commentaries on the Conflict of Laws served as primary course text until 1870 when Harvard Law dropped the course from the curriculum. (3) In 1886, it reappeared as a course "offered, at most, twice", and limited to the study of domicile, capacity and property. (4) In 1894, Conflict of Laws became a permanent course and enjoyed an annual place in the curriculum. (5) This commitment at Harvard and a few other law faculties was not necessarily shared by all law teachers. Upon the occasion of his address as the new president of the Association of American Law Schools in 1904, the then dean of law at Cornel l University identified Conflict of Laws as "an excellent subject for broadening the mind ... [but] might well be omitted" from a more streamlined curriculum that stressed the value of more fundamental courses. (6) Ivan Rand did not go to Cornell; he went to Harvard.

Born in Moncton, New Brunswick, on 27 August 1884 to Nelson and Minnie Rand, he worked in the audit office of the Inter-Colonial Railway for five years before commencing studies at Mount Allison University in Sackville, New Brunswick, from which he graduated in 1909. The entering class of 1909 (7) at Harvard Law consisted of 311 individuals, of whom 74 were Harvard graduates (23.8%), 38 graduated from other Massachusetts colleges (12.2%), 33 graduated from colleges elsewhere in New England (10.6%), 150 graduated from colleges outside of New England (48.2%), and 16 held no prior degree (5.1%). Eighty colleges and universities were represented in this class but only one person came from Mount Allison. In its second year, the class of 311 reduced to 238 students (8) and in its third year to 219 students. (9) Even if the first year students of 1909-1910 had no basic comprehension of Conflict of Laws as an area of study, the Harvard Law Review of that year made sure that the subject was "in their face". At page one of issue number 1 of the 1909-1910 Review, dated November 1909, there appeared an article by Joseph H. Beale entitled "What Law Governs the Validity of a Contract" and the editors followed this with a second article at page 37 by Edwin H. Abbot, Jr. entitled "Conflict of Laws and the Enforcement of the Statutory Liability of Stockholders in a Foreign Corporation". The Beale article continued as the lead article in issue Number 2 of the Review, dated December 1909, commencing at page 79; as an article in issue Number 3, dated January 1910, at page 194; and concluded in issue Number 4, dated February 1910, commencing at page 260. In their second year, these same students were treated to a lead article (actually

a letter) in issue Number 1 of the Review, dated November 1910, by A. V. Dicey in which he commented:

All Souls [Oxford] has also created a Lectureship in Private International Law (Conflict of Laws). My studies have interested me much in the subject, and it is impossible I should not feel every wish that this branch of law should receive more attention than has hitherto been devoted to it in Oxford. The reason why it has been but slightly studied by undergraduates is that it is only in the B.C.L. examination that the subject of Conflict of Laws may be taken up by the candidate for a degree. No man can for the moment expect that a very large class can be collected together for the study of a subject which, to those acquainted with it, presents special fascinations. Yet I am inclined to think that it ought to, and when its nature is well understood will draw to it a definite body of American students. (10) In addition, Conflict of Laws subjects appeared repeatedly in "Notes" and summaries of "Recent Cases" in the three volumes of the Harvard Law Review published during Ivan Rand's period of study: 3 "Notes" and 11 "Recent Cases" in Volume 23; 6 "Notes" and 12 "Recent Cases" in Volume 24; and 4 "Notes" and 11 "Recent Cases" in Volume 25. (11)

Even if Ivan Rand somehow missed the message from the Harvard Law Review, Conflict of Laws would seem to have been a logical choice of study for him. From a bilingual city in a bilingual, bi-juridical country of then nine provinces and two territories with a sense of its place in the British Empire, he studied law in a country of then 46 states, a national capital district and additional territories. (12) Both were countries largely populated by immigrants from around the world. His father was a master mechanic with the railway; Ivan Rand himself had worked for the railway, and his uncle Dr. Silas Rand was known as a linguist and "missionary" to the Mi'kmaq peoples. One can easily speculate that he was imbued with a sense of connection with other peoples, places and communities. The call of Conflict of Laws would seem irresistible to a person like Ivan Rand, particularly at a place like Harvard Law School.

But Ivan Rand, law student, did not heed the call; he did not study Conflict of Laws with Professor Beale at Harvard. (13)

Had he done so, Ivan Rand would have become familiar with Ulric Huber's De Conflictu Legum (1689), often quoted by Story and in later editions of his 1834 treatise; Huber declared three fundamental principles for the area of law he called Conflict of Laws:

1st. The laws of every empire have force within the limits of that government, and are obligatory upon all who are within its bounds.

2d. All persons within the limits of a government are considered as subjects, whether their residence is permanent or temporary.

3d. By the courtesy of nations, whatever laws are carried into execution, within the limits of any government, are considered as having the same effect every where, so far as they do not occasion a prejudice to the rights of the other governments, or their citizens. (14)

If, instead of Story, the course text had been that other readily available text, Francis Wharton's A Treatise on the Conflict of Laws or Private International Law, (15) Ivan Rand would have been introduced to the views of Friedrich Carl von Savigny, (16) who in turn often quoted Huber. But, for whatever reason, Ivan Rand was not academically exposed to these giants of Conflicts scholarship.

ONE LAWYER'S EXPERIENCE WITH CONFLICTS

When legal counsel to Canadian National Railways, Ivan Rand represented the interests of that company and its subsidiaries before tribunals and courts. He had one experience with Conflict of Laws in the Supreme Court of Canada before his appointment to that Court; the appeal succeeded but not on Conflicts grounds.

The case was Canadian National Steamships Company Ltd. v. Watson. (17) Though Rand, K.C., appeared alone before the Court, other counsel had represented C.N. Steamships at trial and before the Quebec Court of Appeal. (18) Watson, a carpenter, had been hired in Montreal to serve on the S.S. Cornwallis, a British ship registered in Vancouver. While off Bermuda, en route from the West Indies to Charlottetown, Watson suffered serious head injuries on 6 November 1935 when swept by a wave twenty-five feet onto the bulkhead of the ship; at the time, Watson and other crew members were applying locking bars on the hatches ("batten down the hatches"). Back in his home jurisdiction of Quebec, Watson brought suit against his employer, C.N. Steamships, for damages claimed at $30,000. A jury found the employer at fault (quasi-delict) because of the failure of the chief officer to order the use of life lines but awarded Watson only $4000 in damages. Following this jury award, counsel for C.N. Steamships made a motion for judgment notwithstanding the verdict.

Specifically, counsel for C.N. Steamships argued application of the Merchant Shipping Act, 1894, (19) an imperial statute which permitted application of local law to British ships registered in colonies, provided the relevant colonial law received imperial approval. In this era before the Statute of Westminster, 1931, the imperial statute governed Canadian registered ships, notwithstanding enactment by Parliament of the Canada Shipping Act, 1927, because the federal statute had not been approved pursuant to the imperial Act. (20) Exercising its post-Statute of Westminster authority, Parliament had enacted the Canada Shipping Act, 1934, (21) but that Act came into effect on 1 August 1936, (22) eight months after the date of the accident. Thus, by virtue of the imperial Act, counsel for C.N. Steamship argued application of the law of England as the lex loci delicti of a British ship on the high seas. (23) Specifically, counsel argued the common law doctrine of common employment, by which an injured employee could not sue an employer for injuries suffered due to the negligence of another employee (co-worker)--a doctrine which led to enactment of workers' compensation legislation to avoid the obvious inequities. Counsel proved the common law of England on this point. On the motion for judgment, the trial judge, Chief Justice Greenshields, rejected this argument and applied instead section 265 of the imperial Act (identical to section 281 of the Canadian Act):

265. Where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws, then, if there is in this Part of this Act any provision on the subject which is hereby expressly made to extend to that ship, the case shall be governed by that provision; but if there is no such provision, the case shall be governed by the law of the port at which the ship is registered. Finding no relevant express provision in the legislation, the trial judge applied the law of British Columbia, being the law of the port. But...