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Private Law and Public Law - Case Study Example

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The given situation presents and requires the resolution of several intertwined issues related to the private law and public law. The private law issue refers to the probable liability of DWI to the Lowells for tort (negligent supervision, training, and hiring of employees; infliction of emotional distress; assault; battery; theft; and wrongful death) and contract (breach of contract)…
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Private Law and Public Law
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Download file to see previous pages The public law issue, on the other hand, refers to the criminal liability (for theft, robbery, physical injuries, kidnapping or death, among others) that happened on occasion of the theft or robbery aboard the cruise ship The Minnow. Specifically, the public law issue is whether the criminal law of Liberia (the country of the ship's flag), or the criminal law of Nassau, Key West, and Grand Cayman (the possible place where the crime was committed or any of the elements of the crime occurred) or the criminal law of the United States. For the purpose of the given problem however, the detailed discussion will be limited to tort law and contract law.
At the outset, it should be emphasized that the resolution of the contract law issue must be resolved and decided under the law chosen and agreed by the contracting parties as stated in the contract. However, the problem of ascertaining the applicable law in the case of torts is scarcely less perplexing than in the case of contract. The reasons for this are as follows. First, there is a variety of different connecting factors that can be raised by the facts of the case: the place where the tort was committed; the residence, habitual residence, domicil, or nationality of the parties; and the place where the parties' relationship was centered. Second, in the situation where, for example, a wrongful act takes place in one country and the consequent injury in another, there is a serious definition problem in determining the place where the tort was committed. Third, a wide variety of tortuous issues may arise. For example, there can be issues of capacity (can Mrs. Lowell sue on behalf of her husband), vicarious liability (is DWI liable for the acts of its employees), defences and immunities, damages, limitations on recovery, wrongful death, or intra-family immunities. Should the same law govern these issues Furthermore, there are different types of tort or delict, ranging from simple negligence to torts involving ships. Should the same rule apply regardless of the type of tort involved Fourth, if a foreign tort law is to be applied, this could lead to liability being imposed for torts unknown to the parties which may reflect radically different views and protect radically different interests from those recognized by the law of the parties.
The common law rule in relation to foreign torts are derived from three leading cases.1 The law can be summed up as follows: there is a general rule of double actionability (there must be actionability by the law of the forum and the law of the place of the tort) with a flexible exception to this rule based on the concept of the most significant relationship. There is a double limbed choice of law rule derived from Phillips which means that a claimant who seeks to recover damages in the forum for what is an admitted tort according to the law of the place where the tort was committed will fail, unless the claimant proves that, had the defendant's act been done in the law of the forum, it would have constituted an actionable wrong by the forum law. Hence, the Lowells can claim only if the complained act is actionable under Liberian law or the law of the place where the tort was committed if the such act is also deemed to be an actionable tort in Florida (the forum). The second ...Download file to see next pagesRead More
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