San Beda College of LawMendiola, Manila

TORTS AND CRIMES

A Report on the Applicability of Conflicts of Law Principles

Submitted to:Atty. Marciano Delson

Submitted by:Altonaga, VedalynDemaala, Clarito IVNaga, John Henry

Salang, Patricia ConcepcionSio, Nathaniel EricZatarain, Marnie

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TABLE OF CONTENTS:

Chapter I. Torts in General ………………………………………………………………………2

Chapter II. Modern Theories in Determining Liability for Torts ………………………………. 7

Chapter III. Rules on Maritime Torts …………………………………………………………..15

Chapter IV. Torts and Crimes …………………………………………………………………..19

Chapter V. Theories on Extraterritorial Competence ………………………………………….. 21

Chapter VI. Theories Applicable in the Philippine Jurisdiction ………………………………. 25

Chapter VII. United Nations Convention on the Law of the Sea ………………………………35

I. TORTS in General

By: Patricia Concepcion Salang

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1. What is the meaning of “tort”?

(a) “Tort” is a legal wrong committed upon person or property independent of contract.

(b) In Spanish law, the concept of “quasi-delict” or culpa aquiliana includes all acts or

omissions committed through fault or negligence causing damage to another,

independent of contract.

It covers all cases where a person causes damage to another through negligence, or

with no intention to do so; i.e unintentional wrongs.

(c) In American law, however, “tort” has a broader meaning, for it covers legal wrongs

not only committed through negligence but also those committed with malice or

willful intent, but of course, independent of contract. Otherwise, it will be breach of

contract and covered by another field of law, contact law.

2. What is concept of “tort” in the Philippines?

Our concept of “tort” under the New Civil Code is a blending of the Spanish

culpa aquiliana and the American tort, which may be committed not only through fault

or negligence, but also with malice and willful intent.

Thus, Art. 20 of the New Civil Code provides: “Every person who, contrary to

law, willfully or negligently causes damage to another, shall indemnify the

latter for the same.” This is a new provision under Chapter 2 of the Code on

Human Relations, which is an entirely new Chapter in the Code.

Art. 2176 of the same Code, on the other hand, retains the Spanish concept of

culpa aquiliana or quasi-delict. It provides:

“Whoever by act or omission causes damage to another, there being fault

or negligence, is obliged to pay for the damage done. Such fault or negligence, if

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there is no pre-existing contractual relation between the parties, is called a quasi-

delict and is governed by the provisions of this chapter.”

3. In Conflicts of Law, what law governs liability for torts, and what are the reasons

for the rule?

a. Liability for torts in general is governed by the lex loci delicti commissii, i.e.,

the law of the place where the delict or wrong was committed.

b. Reasons for the rule:

1.) The state where the social disturbance occurred has the primary duty

to redress the wrong and determine the effects of the injury; and,

2.) To compensate the victim for the damage or injury suffered.

4. Policies of Conflicts Tort Law

The two important policies underlying substantive tort law, to wit:

a.) To deter socially undesirable or wrongful conduct; and,

b.) To rectify the consequences of the tortious act by distributing the losses that

result from accident and products liability.

The ultimate principle of tort law, considering the aforesaid policies, is that the

state will not easily displace its own law with the law of another state. (Coquia,

Jorge and Pangalanan, Elizabeth, “Conflicts of Laws Cases, Materials and

Comments”, Central Book Supply, Inc., Quezon City, 2000).

5. Illustrative Situations When Conflict Torts Cases Arise

a.) Conflict torts cases arise when the tortious conduct and place of resulting

injury are different and one state imposes higher standards than the other state.

b.) There is a difference in product liability laws and varying judicial

interpretations of the extent of liability.

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6. LEX LOCI DELICTI COMMISSI, Explained.

a.) The term “lex loci delicti commissi” is the Latin term for "law of the place

where the delict was committed". The lex loci delicti commissi determines the

tort liability in matters affecting conduct and safety.

7. Illustrative Case: Alabama Great Southern Railroad vs. Carroll, 97 Ala. 126, 11 So.

803 (1892)

Plaintiff Carroll, a resident of Alabama, was a brakeman employed by defendants,

an Alabama Corporation which operated a railroad from Tennessee, though

Alabama to Mississippi. The contract of employment was entered into in

Alabama.

Carroll was injured in Mississippi as a result of an alleged negligent failure to spot

a defective link between two freight cars which the defendant’s employees were

under duty to inspect.

Under the Mississippi law, Carroll could not recover against his employer because

the negligence was caused by the act of a “fellow servant”. Under the Alabama

law, absolute liability was imposed on the company for injuries suffered by

employees in the course of their employment.

In ruling the case, the Court held that the negligent infliction of an injury in the

case at bar creates a right of action which may be enforced in any other state or

country the comity of which admits of it; but for an injury inflicted elsewhere than

in Alabama, the statute gives no tight of recovery, and the aggrieved party must

look to the local law to ascertain what his rights are. The Court further held that

the plaintiff had no cause of action, hence he has no rights which the courts can

enforce, unless it be upon a consideration to be presently adverted to.

8. Illustrative Case: Loucks vs. Standard Oil Co., 224 N.Y. 99; N.E. 198 (1913)

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The plaintiffs are the administrators of the estate of Everette A. Loucks. Loucks,

while travelling on a highway in the state of Massachusetts, was run down and

killed through the negligence of the defendant’s servants then engaged in its

business. He left a wife and two children who reside in New York.

Under the Massachusetts law, if a person or corporation by his or its negligence,

or by the negligence of his or its agents or servants while engaged in his or its

business, causes the death of a person who is in the exercise of due care. And not

in his or its employment or service, he or it shall be liable in damages. xxx

The question is whether a right if action under that statute may be enforced in the

New York Courts.

The Court held that there is nothing in the Massachusetts statute that outrages the

public policy of New York, that the same is a statute which gives a civil liability

where death is caused in their own state. The law of Massachusetts gives the

deceased’s heirs a recompense fro his death. The Court said further that public

policy does not prohibit the assumption of jurisdiction by the courts and that this

being so, mere differences in remedy do not count.

9. In applying the rule of lex loci delicti commissii, how is the locus delicti determined,

especially if the wrong conduct is committed in one state and the injuries are

sustained in another, or the conduct is a continuing act that spans several states (like

the U.S)?

There are at least three theories (3) in determining where the locus delicti is:

a.) Civil Law Theory (Place of CONDUCT)- the locus delicti is where the act

began. This is so since the rules on tort are intended to regulate human

conduct, such that a person who willfully and negligently acts contrary to the

social norms must be held liable for the injury caused.

This is premised on the principle that the legality or illegality of one’s act

should be determined by the law of the state where he is at the time he does

the act.

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Example: While hunting in State X near the boundary of State Y, Jim

accidentally shot Ross, who was standing on a street in State Y. The locus delicti

is State X, because that was where the negligent act occurred.

b.) Common law theory (Place of INJURY): The locus delicti is the place

where the wrongful act became affective. The reason is that without an injury,

there is nothing to protect and there is no necessity for judicial relief.

Looks to the place where the last event necessary to make an actor liable

for an alleged tort.

It adheres to the vested rights theory in that if the harm does not take place

then the tort is not completed.

Example: In the above example under paragraph(a), the locus delicti is State

Y.

c.) Theory of Dr. Rabel (Most Substantial Connection Theory)- The locus

delicti is the place which has the most substantial connection with the

wrongful act.

The The locus delicti is determined by place where the important and

substantial acts leading to the tortuous act were committed.

Example: The situs of the radio station where a libelous broadcast is made is the

locus delicti, even if the broadcast is heard in many places.

II. Modern Theories in Determining Liability for Torts

By: john Henry Naga

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1. State of the Most Significant Relationship

As stated in the Second Reinstatement of 1969, the rights and obligations of the

parties in case of tort is determined by the local law of the state which, with respect to the

particular issue, has the most significant relationship to the occurrence and the parties.1

In Bates v. Superior Court, 156 Ariz. 46 (Ariz. 1988), the court held that the

inquiry to determine which state has the significant relationship is qualitative and not

quantitative.

Thus, in a tort action, the local law of the state where the injury occurred

determines the rights and liabilities of the parties, unless some other state has a more

significant relationship with the occurrence and the parties as to the particular issue

involved, in which event the local law of the latter state will govern.

In order to determine the State which has the most significant relationship, the

following contacts are to be taken into account and evaluated according to their relative

importance with respect to the particular issue: (a) the place where the injury occurred;

(b) the place where the conduct causing the injury occurred; (c) the domicile, residence,

nationality, place of incorporation and place of business of the parties, and (d) the place

where the relationship, if any, between the parties is centered.2

In determining the most-significant relationship under a choice of law issue, the

mere counting of contacts should not be determinative of the law to be applied.3 It is

rather the relevancy of the contact in the terms of policy considerations important to the

forum, vis-a-vis, other contact states.

1 Sempio-Diy, Alicia, “Handbook on Conflicts of Laws”, Joer Printing Services, Quezon City, 2007.2 Coquia and Pangalangan, Conflict of Laws, 1995.3 Wilcox v. Wilcox, 26 Wis. 2d 617 (Wis. 1965).

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In Babcock vs. Jackson 12 N.Y. 2d 473; 191 N.E. 2d. 279, a case for the recovery

of damages was filed in New York by Babcock against Mr. and Mrs. Jackson for the

injuries the former suffered when Mr. Jackson lost control of the car he was driving while

they were travelling in Ontario, Canada. The main issue in this case is whether or not the

plaintiff can recover damages from Mr. Jackson under the New York law notwithstanding

the fact that the injuries were sustained in Ontario, Canada. The U.S. Supreme Court held

that except for the minimum contact with Ontario law as the accident happened in that

place, all the dominant contacts and factors connected with the accident were in New

York. The Court held that the State of New York had the most significant relationship to

the case, hence, the New York laws should apply.

In Saudi Arabian Airlines vs. Court of Appeals (297 SCRA 469), the Supreme

Court held that the Philippine law should apply in this case because it was in the

Philippines that private respondent deceived plaintiff-stewardess. The over-all injury

occurred and lodged in the Philippines. It must be noted also that the plaintiff was

working for respondent here in the Philippines. Furthermore, plaintiff’s nationality and

domicile is also the Philippines. On the other hand, the respondent is a resident foreign

corporation engaged in the business of international air carriage. Hence, the locus delicti

is the Philippines.

2. The Interest-Analysis Approach

Another approach has been suggested by the late Professor Brainerd Currie. It

builds upon the policy analysis of the "significant interest" test; but once a genuine

conflict is discovered, the law of the forum is immediately applied. The rationale behind

the application of forum law must be that any other choice would amount to an

impossible admission, on the part of the court, that the rule of the forum is inferior to the

rule applied. Since, by hypothesis, both policies are relevant to the matter in controversy,

any other rule would require the court to choose a policy directly in opposition to its

own.4

4 Currie. Conflict, Crisis, and Confusion in New York, 1963 DuKE L. J. 1.

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The Interest-Analysis Approach is made applicable in situations when a case

poses a real conflict between the interests of two or more States. It requires application of

the law of the state with the greatest interest in resolving the particular issue that is raised

in the underlying litigation.5

When one of two states related to a case has a legitimate interest in the application

of its law and policy and the other has none, the courts apply the law of the interested

state. When two states have conflicting laws pertaining to an issue, interest analysis seeks

to resolve the “conflict” by first classifying it. If both states are “interested” in applying

their laws to the facts of a dispute, then there is a true conflict. If only one state is

interested in applying its law, then there is a false conflict. Finally, if no state has an

interest in applying its law, then there is an unprovided-for case.

If a real conflict exists between the interests of two or more States, as when the

interested forum finds that the other State has a greater claim in the application of its law

to a given case, the forum should yield and apply the law of the other state.6 When faced

with the problem of choosing between the laws of two states as to which governs a tort

action, the courts make an analysis of the respective interests of the states involved, the

objective of which is to determine the law that most appropriately applies to the issue

involved.

The interest-analysis approach consists of three steps7: 1) the court examines the

substantive law of each jurisdiction to determine whether the laws differ as applied to the

relevant transaction; 2) if the laws do differ, the court determines whether a true conflict

exists in that each of the relevant jurisdictions has an interest in having its law applied. If

only one jurisdiction has a legitimate interest in the application of its rule of decision,

there is a false conflict and the law of the interested jurisdiction is applied. On the other

hand, if more than one jurisdiction has a legitimate interest, the courts move to the third

stage of the analysis; 3) the third stage focuses on the comparative impairment of the

5 Myers v. Hayes International Corp., 701 F. Supp. 618 (M.D. Tenn. 1988).6 Sempio-Diy, Alicia, “Handbook on Conflicts of Laws”, Joer Printing Services, Quezon City, 2007.7 CRS Recovery, Inc. v. Laxton, 2010 U.S. App. LEXIS 7050 (9th Cir. Cal. Apr. 6, 2010)

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interested jurisdictions. At this stage, the courts seek to identify and apply the law of the

state whose interest would be the more impaired if its law were not applied.

This approach finds application in the case of Gantes vs. Kason Corp., 145 N.J.

478 (1996), where a young woman, working in a chicken processing plant in Georgia,

was killed when struck in the head by a moving part of a machine. The machine had been

manufactured more than thirteen years before the fatal accident by a New Jersey

corporation with its principal place of business in Linden, New Jersey.

Representatives of the decedent, asserting that the machine was defective, brought

this personal-injury action based on claims of survivorship and wrongful-death against

the New Jersey manufacturer in the Law Division in Union County. The action was filed

within New Jersey's two-year statute of limitations for personal-injury actions, but

beyond Georgia's ten-year statute of repose applicable to products-liability claims against

manufacturers. Because of the conflict between the two statutes, the case poses a

fundamental choice-of-law issue over which statute applies and whether, depending on

that choice, the action will be barred.

The Court held that "the weight of authority clearly favors following the law of

the state with the interest of compensating its residents, where such law conflicts with

that of the state having solely a deterrence interest. Fair compensation of a tortiously

injured party is the predominant concern of a personal injury claim for the state of

domicile of the injured party, particularly where it is the locus of an industrial accident."

New Jersey's interest in the tortious injury action of a non-domiciliary resident is

nonexistent. Here the accident occurred in Georgia, the machine was being used in a

Georgia factory, decedent was a resident of Georgia who died in Georgia, and decedent's

heirs also are residents of Georgia. Accordingly Georgia's contacts to this litigation and

its interest in its residents and in accidents that occur in its state are substantially greater

than New Jersey's interest.8

In Heavner vs. Uniroyal Inc. 63 N.J. 130 (1973), plaintiff, a resident of North

Carolina, purchased a truck tire from Pullman, in North Carolina. The tire was

8 Gantes v. Kason Corp., 145 N.J. 478 (N.J. 1996).

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manufactured by Uniroyal, a New Jersey corporation. Plaintiff sought recovery for

personal injuries sustained by him and contemporaneous damages to his car, when a

defect in the tire induced a blow out, causing plaintiff to crash. Plaintiff brought a

personal injury action against Pullman and Uniroyal. No cause of action was ever

commenced in North Carolina. By the time the action was commenced in New Jersey, the

statute of limitations in North Carolina had expired, barring any claims. The Heavner

court rejected the mechanical rule that the Statute of Limitations of the forum state must

be applied in every action involving a foreign cause of action. The court further identified

plaintiff's decision to bring the action in New Jersey as "forum shopping," explaining that

the plaintiff's motivation was to seek a forum "more favorable than that of North

Carolina." Holding that New Jersey law should not apply, the court observed: "[W]e do

not believe that New Jersey has any sufficient interest in this action to call for the

application of its substantive law in preference to that of North Carolina under the

governmental interests choice-of-law principles." The only possible interest, the court

noted, was that Uniroyal was incorporated in New Jersey. However, the court remarked

"that is not enough."9

3. Qaver’s Principle of Preference

Under this theory, a higher standard of conduct and financial protection given to

the injured party by one state is applied by the State where the injury was sustained, if the

latter State adopts a lower standard of conduct and financial protection to the injured.10

Under the Principle of Preference, the following guidelines on which rules on torts

may be applied by States in the absence of statutory provision:

a. Where the State of Injury provides for higher standard of conduct or financial

protection against injury than the State where the tortious act was done, the law of the

former shall govern.

9 Heavner vs. Uniroyal Inc. 63 N.J. 130 (1973).10 Sempio-Diy, Alicia, “Handbook on Conflicts of Laws”, Joer Printing Services, Quezon City, 2007.

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b. Where the State of injury and conduct provides for lower standard of conduct

and financial protection than the home State of the person suffering the injury, the law of

the State of conduct and injury shall govern.

c. Where the State in which the defendant has acted has established special

controls over conduct of the kind in which defendant was engaged, the special controls

and benefits must be applied although the State has no relationship to the defendant.

d. Where the law in which the relationship has its seat imposed higher standard of

conductor financial protection than the law of the State of the injury, the former law shall

govern.

In the case of Scmidt vs. Driscoll Hotel, 249 Minn, 376, N.W. 2nd 365 (1947), a

complaint alleged that defendant illegally sold intoxicating liquors to John Sorrenson to

the extent of causing him to become intoxicated in defendant's establishment in South St.

Paul so that shortly thereafter, as a proximate result thereof, plaintiff sustained injuries

when an automobile driven by Sorrenson, in which plaintiff was a passenger, was caused

to turn over near Prescott, Wisconsin.

Sued for Tort by the minor plaintiff, instituted this action by his mother and

natural guardian, defendant hotel moved to dismiss the case on the ground that the

accident happened in Wisconsin, the law of which required That the wrongful act and

injury should happen in the same State before recovery can be had.

Applying the Minnesota law to the case would be more in conformity with the

principles of equity and justice since the defendant Hotel’s wrongful conduct was

completed within Minnesota where Sorrenson was intoxicated before leaving said State

and before going to Wisconsin with the minor. The Court further held that the parties

were both residents of Minnesota whose law demanded a higher standard of conduct than

that of Wisconsin where the accident happened.11

In Gordon v. Parker, (D. Mass.) 83 F. Supp. 40, an action for alienation of

affections was instituted in Massachusetts by plaintiff, who, with his wife, was domiciled

11 Scmidt vs. Driscoll Hotel, 249 Minn, 376, N.W. 2nd 365 (1947).

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in Pennsylvania. Therein it appeared that defendant's wrongful acts had taken place in

Massachusetts, and accordingly plaintiff sought the application of a Massachusetts statute

relating to alienation of affections. Defendant contended that, since the matrimonial

domicile of the parties was in Pennsylvania, which accordingly was the place where the

ultimate wrong was done to plaintiff, only Pennsylvania law could be applied. In denying

this contention and applying the Massachusetts statute, the court stated that as the place

of matrimonial domicile, Pennsylvania has an interest in whether conduct in any part of

the world is held to affect adversely the marriage relationship between its domiciliaries.

But, as the place where the alleged wrongdoer lives, Massachusetts also has an interest.

She is concerned with conduct within her borders which in her view lowers the standards

of the community where they occur. She also is concerned when her citizens intermeddle

with other people's marriages.12

Kilberg Doctrine

This is a rule applied in suits involving conflicts of law that provides that the

forum is not bound by the law of the place of injury or death as to the limitation on

damages for wrongful death action. The rationale behind the doctrine is that laws that set

limitations on damages are procedural. Hence the law of the forum should govern the

issue.

On August 15, 1958, a passenger for hire, traveling in the defendant's plane from

New York to Nantucket, Massachusetts, was killed when the plane crashed on Nantucket

Island. The cause of action under consideration, predicated upon the breach of a contract

made in New York, seeks to recover for loss of accumulation on behalf of the estate,

pursuant to the New York Decedent Estate Law.

The plaintiff alleges substantially that the defendant breached its implied contract

of safe carriage by the negligent operation of its plane, culminating in its destruction and

the death of the passenger.

The plaintiff does not question the general rule that the right to recover in a death

action is governed by the law of the place where the wrong occurred. However, he

12 Gordon v. Parker, (D. Mass.) 83 F. Supp. 40.

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contends that the cause of action is not one for wrongful death, or for damages for loss

suffered by the decedent's survivors by reason of his death, but that "It merely asserts a

statutory codification of a common law cause of action for breach of contract, and seeks

on behalf of the decedent's Estate to recover for such Estate the amount the deceased

would have accumulated had he lived out his normal life expectancy." The short answer

is that the cause of action alleges a breach of duty through negligence. The fact that it has

been seductively clothed in form ex contractu does not control. Relief, if any, may be

obtained only upon proof of the defendant's negligence. It follows, therefore, that the

laws of Massachusetts, where the injuries were inflicted, govern the extent of the

damages which may be recovered.13

III. Maritime Torts

By: Nathaniel Eric Sio

1. Conflicts Rules on Maritime Torts

13 Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d, 133, 172 N.E.2d 526.

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1. lf the tort is committed aboard a public vessel whether on the high seas or in foreign

territorial waters, the law of the flag is the lex loci delicti commissii.

2. lf the tort is committed aboard a private merchant vessel on the high seas, the law of

registry is the lex loci delicti commissii.

3. lf two vessels collide and are from the same state. the law of registry is the lex loci

delict commissii.

4. lf the vessels come from different states with identical laws, apply said identical laws.

5. lf the vessels come from different states with different laws, the lex loci delicti

commissii is the general maritime law as understood and applied by the forum where

the case is filed (Paras, supra. p. 394, citing American cases).

2. Philippine Rule on Foreign Torts

The rule on foreign tort claims is that tortious liability is also considered transitory. The

liability resulting from the tortious conduct is “deemed personal to the perpetrator of the wrong,

following him whithersoever he may go, so that compensations may be exacted from him in any

proper tribunal which may obtain jurisdiction of the defendant’s person, the right to sue not

being confined to the place where the cause of action arises." Ergo, an action may be brought

wherever the tortfeasor is subject to suit.

There is no governing specific statutory law but Philippine Courts may give due course

on the theory of vested rights or most significant relationship provided that there are minimum

contacts and the defendant can be serve with summons. In case of injuries which involve

physical harm, mental disturbance, false imprisonment, malicious prosecution, the law of the

state where the injury was inflicted is applicable and in case of an intentional tort - the law of the

state where the actor initiated or carried out the tortuous act.

We also follow the rule of Generality in criminal law is also followed in torts. The

protective theory is followed in cases mentioned in Art. 2 of the Revised Penal Code, such that

even if the tort was committed outside our territorial jurisdiction, it is triable by our courts.

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A foreign tort is actionable and may be the subject of an action for damages in the

Philippines provided that we acquire jurisdiction over the defendant (because an action for

damages is an action in personam) and certain conditions are present, namely:

(1) The foreign tort must not be penal in nature;

(2) The enforcement of the tortuous liability should not contravene our public policy; and

(3) Our judicial machinery must be adequate for such enforcement.

However, that while all procedural matters are governed by the lex fori (i.e., Philippine law),

since the case is filed here, all Substantive matters are governed by the lex loci delicti commissii.

Thus:

(1) The period of prescription of the action is governed by the lex loci delicti commissii

because in Philippine law, prescription is substantive, not merely procedural.

(2) The proper parties, the measure of damages, and the question whether the act

complained of is considered the proximate cause of the injury, are all governed by the lex

loci delicti commissii.

(3) The burden of proof and the defenses that may be interposed by the defendant are also

governed by lex loci delicti commissii.

3. Example of a foreign tort actionable in the Philippines:

X and Y, both Filipinos, were vacationing in Hongkong. One day, while driving a rented

car, X ran over Y, who was walking, causing the latter to be hospitalized in Hongkong. Upon the

return of both to the Philippines, Y sued X for damages arising from the tort committed by the

latter while they were in Hongkong. The action will prosper provided it is filed within the period

prescribed by Hongkong law, the lex loci delicti commissii, since the period of prescription is

substantive and not procedural. The kinds and measures of damages recoverable by Y, and the

defenses that X may put up, should also be governed by Hongkong law, which is the lex loci

delicti commissii. But all procedural matters like the period for filing the answer, the period for

appeal, etc., should be governed by the lex fori, which is Philippine law.

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4. Product Liability of the Foreign Manufacturer

In contrast to the law on contracts where the jurisdiction of the forum court is usually

based on the consent of the parties, the defendant in a transnational tort is often sued in a foreign

court against his will. Hence, there may be a as problem of the legitimacy of the jurisdiction and

the validity of the decision may be questioned. The question of jurisdiction in foreign torts has

given rise to disagreements between courts especially on issues involving products liability. As

stated by the U.S. Supreme Court in Pennoyer v. Neff "every state possesses exclusive

jurisdiction and sovereignty over person and property within its territory… no state can exercise

direct jurisdiction and authority over persons and property not within its territory.”

However, the Supreme Court of the United States ruled that a state may assert personal

jurisdiction over a foreign corporation that delivers its products into the stream of commerce

with the expectation that they will be purchased by consumers in the forum State. (Worldwide

Volkswagen Corp. v. Woodson)

5. The Alien Tort Act

The Alien Tort Act of the United States, which was enacted in 1979, grants U.S. district

courts original jurisdiction over any civil action filed by an alien for a tort committed in violation

of the law of nations or a treaty of the United States. Section 1350 of said law provides a right to

an alien if a tort has been committed against him or her in violation of a treaty with the United

States, or the law of nations.

The celebrated case of Hilao, et al. vs. Estate of Ferdinand Marcos, illustrates the conflict

of laws rule that tort liability is transitory. The claims for damages arising from tort committed

abroad may be given due course in the court of the forum not only in the theory of vested rights

but also the internalization of human rights laws.

lt was also under the Alien Tort Act that the United States Court of Appeals upheld the

jurisdiction of the district court of Hawaii over a class action for damages filed by almost ten

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thousand Filipino victims of human rights abuses and torture committed by the late President

Ferdinand Marcos and his officials in the Philippines during the Marcos regime, resulting in a

nearly US$2 billion judgment in favor of the victims and/or their heirs (Trajano v. Marcos-

Manotoc, 125 L.Ed. 2d 661, 113 S. Ct. 2959 –In re Estate of Ferdinand E. Marcos Human Rights

Litigation).

The above Statute justifies exercise of court jurisdiction over completely foreign tort

cases because of the universal evil exemplified by human rights violations. That is why in order

for the Alien Tort Act to apply, there is a need to establish that the tortious conduct violated an

internationally protected human right.

IV. Torts and crimes, distinguished

By: Clarito Demaala IV

1. Distinguish tort from crime

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a. While both tort and crime are wrongs, a tort violates private rights while a crime is

committed against the State.

b. Tort actions are instituted by the injured person against the wrongdoer in a civil case

the purpose of which in a civil case the purpose of which is indemnification for

damages suffered; while crimes are prosecuted in the name of the State against the

offender in criminal actions the purpose of which are the protection and vindication

of the interests of the public as a whole, the punishment of the offender, the

reformation of the offender, or to deter others from committing the same act.

c. Torts are transitory in character, so that the tortfeasors can be made liable for his

wrongful act in any jurisdiction where he may be found. Crimes, on the other hand,

are local and can be prosecuted only in the places or states where the crimes are

committed.

Crime Torts

Legal Basis of Liability

There can be no crime unless there is a

law clearly punishing the act

There can be a quasi-delict as ling as

there is fault or negligence resulting in

damage or injury to another

Criminal Intent

Criminal intent is essential for criminal

liability to exist

Not necessary for quasi-delict to exist.

Fault or negligence without intent will

suffice

Nature of right violated

Right violated is a public one. Crime is a

wrong against the State

Right violated is a private right. It is a

wrongful act against a private individual

Liability

Includes both civil and criminal liability,

some crimes (like contempt, illegal

possession of firearm) do not give rise to

the employer’s liability under Article

Civil liability only. Every quasi-delict

gives rise to liability for damages.

Employer’s liability is only subsidiary.

19

2180, it is direct and primary

Proofs needed

The guilt of the accused must be proved

beyond reasonable doubt

Proof of the fault or negligence require

only preponderance of evidence

Sanction or Penalty

Punishment is either imprisonment, fine

or both; sometimes other accessory

penalties are imposed

Reparation or indemnification of the

injury or damage

2. How does the court determine whether a wrongful act is a tort or a crime?

The determination of whether a wrongful act is a tort or a crime depends on the

characterization of the act in the state where said act is committed.

In the Philippines, certain acts may be both torts and crimes. Under art. 33 of the Civil

Code of the Philippines, “ in cases of defamation, fraud, and physical injuries, a civil

action for damages, entirely separate and distinct from the criminal action shall proceed

independently of the criminal prosecution, and shall require only a preponderance of

evidence.”

Take the offenses classified as “criminal negligence” under Art. 365 of the Revised Penal

Code. They may be prosecuted as crimes by the State. On the other hand, the victims

may file separate actions for damages against the offenders based on torts.

V. Theories on Extraterritorial Competence

By: Marnie Zatarain

20

THEORIES AS TO WHAT COURT HAS JURISDICTION TO TRY CRIMINAL CASES

(Theories on Extraterritorial Competence)

There are at least six different theories as to what tribunal or legal; system has jurisdiction to take

cognizance of criminal cases: (1) The territorial theory; (2) the nationality or personal theory; (3)

the protective theory (4) the real theory; (5) the cosmopolitan or universality theory; (6) the

passive personality theory.

1. Territorial theory – Under this theory, the state where the crime was committed has

jurisdiction try the case, and its penal code and the penalties prescribe therein will apply.

The reason is that the aggrieved state is duty bound to prosecute and punish the offender

as his crime affects directly and particularly the dignity, authority, and sovereignty of the

state where said crime is committed and to restore public order and trust. In general, it is

this theory that is adhered to in the Philippines.14

This theory may be of two kinds:

Subjective territorial principle – Under which the state where the crime was begun

may prosecute the same, even if it was completed in another state.

Objective territorial principle – Under which the state can prosecute crimes began

abroad but completed within its territory.

Examples: if aliens conspire abroad with persons within the United States to

violate the country’s tariff laws, said aliens may be validly prosecuted in the

Unites States, provided, of course, that somehow the U.S. can get said aliens

within its power.15 A french naval officer, for an act of negligence originating

from a French vessel was tried in a Turkish Court because the act of negligence

resulted in a collision with a Turkish vessel, and fatal consequences to some

passengers aboard said latter vessel.16

14 Philippine Conflict of Laws p.40415Ford v. US, 237 us 593; Strassheim v. Daily 221 US 28016 The lotus case, PCIJ, ser. A. No. 10, 2 Hudson, World Court Reports 20

21

2. Nationality or personal theory – States which follow the nationality or personal theory in

criminal law are of the opinion that the country of which the criminal is a citizen or

subject has jurisdiction to try him for crimes allegedly committed by him, whether the

effectuation of the act be inside or outside its territory, provided that the act is a crime

under said country’s penal law. According to this theory, penal laws follow a citizen or

subject wherever he may be and wherever the crime may be committed, even if this be

outside of the territorial jurisdiction of his own native land.17 Other reasons have been

given to this theory; the citizen’s misbehavior in a forein land adversely affects the social

and moral order of his country; if a citizen abroad expects his country’s protection he

should be ready to obey its laws.18

3. Protective theory – Adherents of the protective theory states that any state whose national

interests may be jeopardized has jurisdiction over criminal offenses, even if committed

outside its territory, and in some cases, even if committed by an alien in order that it may

properly protect itself.19 By way of exception, this principle finds support in Art. 2 of the

Revised Penal Code of the Philippines. Thus, if a Filipino or an alien should counterfeit

Philippine currency in Singapore, he is amenable to prosecution under our criminal laws

the moment he sets foot on Philippine soil.20

4. Real or Eclectic theory – The real or eclectic theory may be stated in this wise: Any state

whose penal code has been transgressed upon has jurisdiction to bring to justice the

perpetrators of the crime, whether the crime was committed inside or outside its own

territory. While the protective theory takes cognizance only of very important state

prejudicing offenses, the real theory demands authority over all crimes committed against

a state’s penal law so long as any substantial contact is made with the state (whether it be

contact because of territoriality, nationality, or any of the other theories). Crimes under

this theory would include piracy, slavery, drug trafficking, immoral traffic in women and

17 Minor, Conflicts of laws, p.49718 Harvard Research, p. 519; Paras, Philippine Conflict of laws, p. 40519 Harvard Research, p.543; Paras,Philippine Conflict of laws, p. 40520 Paras, Philippine Conflict of Laws p. 405

22

children, etc. otherwise stated the real or eclectic theory allows the simultaneous

application of all the theories on extraterritorial competence.21

5. Cosmopolitan or universality theory – Any state where the criminal is found or which has

obtained custody over him, can try him for the crime he has allegedly committed, unless

extradition applies. This in nutshell form is the cosmopolitan or universality theory in

criminal law.

6. Passive personality or passive nationality theory – The passive nationality theory holds

that the state of which the victim is a citizen or subject has jurisdiction to prosecute the

offense. The reason is that, a wrong having been inflicted on its citizen or subject, a state

is duty bound to seek justice by criminally prosecuting the offender. This theory has been

widely criticized, principally because a national of one country may because of one

criminal act subject himself to the penalties given by several foreign penal codes.22

ILLUSTRATIVE EXAMPLES OF THE AFOREMENTIONED THEORIES

(1) A Frenchman commits a crime in England against a German. The criminal fled to

Argentina where he is now in the protective custody of the police. Incidentally, the

crime also violates the law of Russia because certain properties involved in the

offense are in Russian territory. What country has jurisdiction over the offense?

ANSWER: Under the territorial theory, England has jurisdiction because the crime

was committed there. According to the nationality or personal theory, France has

jurisdiction, the offender being a French national. Advocates of the real theory will be

inclined to allow Russia (among others) to assume jurisdiction because, the Russian

law on crime has apparently been violated. Argentina, which now has custody over

the aggressor, will have jurisdiction, if we follow the cosmopolitan theory or

21 Alcorta, op. cit. pp. 146-14722Paras, Philippine Conflict of Laws p. 406

23

universality theory. States which believe in the passive personality theory will say

that Germany ought to have jurisdiction because the victim happens to be

a German.23

(2) In the example given, if the crime had consisted of the counterfeiting of Philippine

currency, our national economy will be imperiled; under the protective principle, it is

undeniable that Philippines possess jurisdiction.24

VI. THEORIES APPLICABLE IN THE PHILIPPINE JURISDICTION

By: Vedalyn Altonaga

23 Paras, Philippine Conflict of Laws p. 40624 Ibid.

24

I. TERRITORIALITY – Penal laws of the Philippines have force and effect only within its

territory.

The territorial theory is manifested in the Article 2 of the Revised Penal Code

Art. 2. Application of its provisions. — Except as provided in the treaties and laws of

preferential application, the provisions of this Code shall be enforced not only within

the Philippine Archipelago, including its atmosphere, its interior waters and

maritime zone, but also outside of its jurisdiction, against those who:

xxx

In other words, we cannot prosecute a crime committed abroad in the Philippines,

because it is committed outside our territorial jurisdiction.

LOCUS DELICTI OF CERTAIN CRIMES

Frustrated and consummated

homicide, murder, infanticide and

parricide

Where the victim was injured

Attempted homicide, murder,

infanticide and parricide

Where the intended victim was – so

long as the weapon of the bullet

either touched him or fell inside the

territory where he was

Bigamy Where the illegal marriage was

performed

Theft and robbery Where the property was unlawfully

taken from the victim (not the place

where the criminal went after the

commission of the crime)

Estafa or swindling through false

representations

Where the object of the crime was

received

25

Conspiracy to commit treason,

rebellion or sedition

Where the conspiracy was formed

Libel Where published or circulated

Continuing Crimes Any place where the offense begins,

exists or continues

Complex Crimes Any place where any of the

essential elements of the crime took

place

We also follow the Rule of Generality in Criminal Law.

RULE OF GENERALITY

Article 14 of the New Civil Code:

Penal laws and those of public security and safety shall be obligatory upon all who live

or sojourn in the Philippine territory, subject to the principles of public international

law and to treaty stipulations.

EXCEPTIONS TO THE RULE ON GENERALITY: Instances when even if the crimes are

committed by persons living or sojourning in the Philippines, our courts cannot exercise

jurisdiction.

1. TREATY STIPULATIONS

Under the RP-US Visiting Forces Accord, which was signed on February 10, 1998, the

Philippines agreed that:

a. US shall have the right to exercise within the Philippines all criminal and

disciplinary jurisdiction conferred on them by the military law of the US over

US personnel in the Philippines

b. US exercises exclusive jurisdiction over US military personnel with regard to

offenses relating to the security of the US, but not under the laws of the RP

26

c. US shall have primary right to exercise jurisdiction over US military in

relation to:

i. Offenses solely against the property or security of the US or offenses

solely against the property or person of US personnel

ii. Offenses arising out of any act or mission done in the performance of

official duty

2. LAWS OF PREFERENTIAL APPLICATION

a. RA 75 penalizes acts which would impair the proper observance by the republic and

its inhabitants of the immunities, rights, and privileges of duly accredited foreign

diplomatic representatives in the Philippines

Persons exempt from arrest and imprisonment and whose properties are exempt from

distraint, seizure and attachment are the following:

i. Ambassadors

ii. Public Ministers

iii. Domestic Servants of Ambassadors and Public Ministers

NOTE: RA 75 does not apply when the foreign country adversely affected does not

provide similar protection to our diplomatic representatives

b. Warship Rule – a warship of another country even though docked in the Philippines

is considered as an extension of the territory of their respective country. Same rule

applies to foreign embassies in the Philippines.

3. PRINCIPLES OF PUBLIC INTERNATIONAL LAW

The following persons are exempted:

a. Sovereigns and other heads of the State

b. Ambassadors

27

c. Ministers Plenipotentiary

d. Ministers Resident

e. Charges d’affaires

REASON: Foreign states and their heads are exempt because of the sovereign equality of states

and on the theory that a contrary rule would disturb the peace of the nations. Diplomats enjoy the

exemption in order that they may have full freedom in the discharge of their official functions.

NOTE: consuls, vice consuls and other commercial representatives of foreign nations cannot

claim the privileges and immunities accorded to ambassadors and ministers.

II. PROTECTIVE THEORY - In the Philippines, we follow as a general rule the territorial

theory, and by way of exception, the Protective Theory. It is also embodied in Article 2

of the Revised Penal Code and is commonly known us Extraterritoriality.

Extraterritorial Crimes are those where Philippine criminal laws apply to crimes

committed outside the Philippine Territory. They are enforceable even outside Philippine

Territory against those who:

1. Should commit an offense while on a Philippine ship or airship

2. Should forge or counterfeit any coin or currency note of the Philippine Islands

or obligations and securities issued by the Government of the Philippine Islands;

3. Should be liable for acts connected with the introduction into these islands of

the obligations and securities mentioned in the presiding number;

4. While being public officers or employees, should commit an offense in the

exercise of their functions; or

5. Should commit any of the crimes against national security and the law of

nations, defined in Title One of Book Two of this Code.

I. SHOULD COMMIT AN OFFENSE WHILE ON PHILIPPINE SHIP OR AIRSHIP

28

Requisites:

a. The ship or airship must not be within the territorial jurisdiction of another country

(may be in the Philippine waters or high seas)

b. The ship or airship must be registered in the Philippines under the Philippine laws

RULE ON FOREIGN VESSELS

a. Merchant Vessels – Regarding foreign merchant vessels docked in a local port or

bay, jurisdiction is exercised over them by the coastal state in civil matters, but the

criminal jurisdiction is determined according to either the English Rule or the French

Rule

FRENCH RULE ENGLISH RULE

GENERAL RULE

Crimes committed aboard the vessel

within the territorial waters of the

country are NOT triable in the courts

of said country

Crimes committed aboard a vessel

within the territorial waters of a

country are triable in the court of

such country

EXCEPTION

When their commission affects the

peace and security of the territory or

when the safety of the state is

endangered

When the crimes merely affect things

within the vessel of when they only

refer to the internal management

thereof

It is evident that there is no substantial distinction between the two rules inasmuch as, under

wither, offenses committed on board the foreign vessel shall be triable by the territorial

sovereign when they constitute a disturbance of its peace and all other offenses shall be under the

jurisdiction of the state whose flag the vessel flies.

29

In any event assuming that there is a difference between the two rules, our own Supreme Court

has held that the English Rule is applicable in this country.

CASES:

US vs LOOK CHOW

FACTS:

Defendant was on board the steamship Errol, which is of English nationality. Said

steamship came from Hongkong and is bound for Mexico, via the call ports of Manila

and Cebu. Defendant admitted that the opium seized in the vessel was his and bought by

him in Hongkong to be sold as contraband in Mexico. Upon arrival in Cebu, he sold the

opium

The defense moved for a dismissal of the case, on the grounds that the court had no

jurisdiction to try the same and the facts concerned therein did not constitute a crime.

ISSUE:

Whether the accused is liable under the Philippine courts for mere possession of opium in

its vessel.

HELD:

Although the mere possession of a thing of prohibited use in these Islands, aboard a

foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a

crime triable by the courts of this country, on account of such vessel being considered

as an extension of its own nationality, the same rule does not apply when the article,

whose use is prohibited within the Philippine Islands, in the present case a can of

opium, is landed from the vessel upon Philippine soil, thus committing an open

violation of the laws of the land, with respect to which, as it is a violation of the penal

law in force at the place of the commission of the crime, only the court established in

30

that said place itself had competent jurisdiction, in the absence of an agreement under

an international treaty.

PEOPLE VS WONG CHENG

FACTS: Appellee is accused of having illegally smoked opium, aboard the merchant vessel

Changsa of English nationality while said vessel was anchored in Manila Bay two and a half

miles from the shores of the city.

ISSUE: Whether the courts of the Philippines have jurisdiction over crime, like the one

herein involved, committed aboard merchant vessels anchored in our jurisdiction waters.

HELD: There are two fundamental rules on this particular matter in connection with

International Law; to wit, the French rule, according to which crimes committed aboard a

foreign merchant vessels should not be prosecuted in the courts of the country within whose

territorial jurisdiction they were committed, unless their commission affects the peace and

security of the territory; and the English rule, based on the territorial principle and followed

in the United States, according to which, crimes perpetrated under such circumstances are in

general triable in the courts of the country within territory they were committed. Of this two

rules, it is the last one that obtains in this jurisdiction, because at present the theories and

jurisprudence prevailing in the United States on this matter are authority in the Philippines

which is now a territory of the United States.

No court of the Philippine Islands had jurisdiction over an offense or crime committed

on the high seas or within the territorial waters of any other country, but when she

came within three miles of a line drawn from the headlands, which embrace the

entrance to Manila Bay, she was within territorial waters, and a new set of principles

became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le

Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then

subject to the jurisdiction of the territorial sovereign subject to such limitations as have been

conceded by that sovereignty through the proper political agency. . . .

31

We have seen that the mere possession of opium aboard a foreign vessel in transit was

held by this court not triable by or courts, because it being the primary object of our

Opium Law to protect the inhabitants of the Philippines against the disastrous effects

entailed by the use of this drug, its mere possession in such a ship, without being used in

our territory, does not being about in the said territory those effects that our statute

contemplates avoiding. Hence such a mere possession is not considered a disturbance of

the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant ship,

is certainly a breach of the public order here established, because it causes such drug to

produce its pernicious effects within our territory. It seriously contravenes the purpose that

our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the

Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the

port of Manila in open defiance of the local authorities, who are impotent to lay hands on

him, is simply subversive of public order. It requires no unusual stretch of the imagination to

conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese

residents to smoke opium on board.

b. Foreign Warships – in case of a foreign warship, the nationality of such warship

determines the applicable penal laws to crimes committed therein, as they are

considered to be an extension of the territory of the country to which they belong.

Thus, their respective national laws shall apply to such vessels wherever they may ne

found.

II. SHOULD FORGER OR COUNTERFEIT ANY COIN OR CURRENCY NOTE OF

THE PHILIPPINES OR OBLIGATIONS AND SECURITIES ISSUED BY THE

GOVERNMENT

If forgery is committed abroad, it must refer only to Philippine coin, currency note or

obligations and securities

32

Obligations and securities of the GSIS, SSS and Landbank are not of the Government

because they have separate charters.

III. SHOULD INTRODUCE INTO THE COUNTRY THE ABOVE MENTIONED

OBLIGATIONS AND SECURITIES

Those who introduced the counterfeit items are criminally liable even if they were not

the ones who counterfeited the obligations and securities, On the otherhand those who

counterfeited the items are criminally liable even if they did not introduce the

counterfeit items.

IV. WHILE BEING PUBLIC OFFICERS OR EMPLOYEES, SHOULD COMMIT AN

OFFENSE IN THE EXERCISE OF THEIR FUNCTIONS, LIKE:

a. Direct Bribery

b. Indirect Bribery

c. Qualified Bribery

d. Corruption

e. Fraud against Public Treasury and other Similar Offenses

f. Possession of Prohibited Interest

g. Malversation of Public funds or property

h. Failure to Render Accounts Before Leaving the Country

i. Illegal Use of Public Funds or Property

j. Failure to Make Delivery of Public Funds or Property

k. Falsification

V. SHOULD COMMIT ANY OF THE CRIMES AGAINST NATIONAL SECURITY

AND THE LAW OF NATIONS DEFINED IN TITLE ONE OF BOOK TWO

a. Treason

b. Conspiracy to Commit Treason

c. Misprision of Treason

d. Espionage

33

e. Piracy

f. Inciting to war or giving motives for reprisals

g. Violation of neutrality law library

h. Correspondence with hostile country

i. Flight to enemy country

When Rebellion, Coup d’etat and Sedition are committed abroad, the Philippine

Courts do not have jurisdiction because they are crimes against Public Order

VII. United Nations Convention on the Law of the Sea

By: Clarito Demaala IV

1. Did the United Nations Convention on the Law of the Sea change the above rules?

34

Art. 27 of the said Convention partly provides:

“Criminal jurisdiction on board a foreign ship:

1. The Criminal jurisdiction of the coastal State should not be exercised on board a

foreign ship passing though the territorial sea to arrest any person or to arrest any

person or to conduct any investigation in connection with a crime committed on

board the ship during its passage, save only in the following cases:

(a) If the consequences of the crime extend to the coastal State;

(b) If the crime is of a kind to disturb the peace of the country or the good order of

the territorial sea;

(c) If the assistance of the local authorities has been requested by the master of the

ship or by a diplomatic agent or consular officer of the flag State; or,

(d) If such measures are necessary for the suppression of illicit traffic in narcotic

drugs or psychotropic substances.”

Under the Rules of the United Nations Convention on the Law of the Sea, Philippine

courts do not acquire jurisdiction over crimes committed on board a foreign vessel even if

it is within our territorial waters as long as the effect of such crime does not disturb our

peace and order. This is similar to the French Rule to the effect that we have no

jurisdiction over crimes committed aboard foreign vessels even if they are found within

out territorial waters except when the crimes affect the peace, order, security, and safety

of our country and territory.

2. Illustrative Case: U.S. vs. Fowler 1 Phil. 614

William Fowler and another defendant were accused of the theft of 16 bottles of

champagne belonging to one Julian Lindsay while on board the transport Lawton, then

navigating the high seas.

The accused presented a demurrer, alleging that the CFI of Manila was without

jurisdiction to try the crime charged, in as much as the crime was committed on the high

seas and not in the City of Manila, or within the territory comprising the Bay of Manila,

or even upon seas within the 3-mile limit to which the jurisdiction of the court extends.

35

The Court ruled that it was without jurisdiction to try the accused for theft alleged to have

been committed on the high seas.

3. Rationale Behind the Rule on Criminal Jurisdiction On Board a Foreign Ship

The principle which governs the whole matter is that disorders which disturb only the

peace of the ship or those on board are to be dealt with exclusively by the sovereignty of

the home of the ship, but those which disturb the public peace may be suppressed, and, if

need be, the offenders punished by the proper authorities of the local jurisdiction.

36