TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Getting it Right: How the Iowa Supreme Court Correctly Made Room for Common Law State Torts in Clean Air Act Litigation" Free Download

MICHAEL S. BOAL, University of Nebraska College of Law
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For centuries, common law torts have provided citizens with a reliable avenue to redress environmental harm. Whether such harm presented itself through water, air, or waste pollution, citizens have long been empowered to seek remedies in state courts, alleging most commonly nuisance, negligence, or trespass. However, recent expansion of federal oversight and regulation in the area of environmental law has compelled courts to consider whether these state common law torts have now been preempted by federal legislation.

In 2011, the U.S. Supreme Court decision American Electric Power Co. v. Connecticut held that the Clean Air Act, which essentially regulates the nation’s air pollution, displaces all federal common law claims seeking relief against air polluters. The Court did not hold whether state common law claims were also preempted by the Clean Air Act, and instead, the Court expressly left the question undecided. Predictably, several lower federal courts have since confronted the question of whether state common law claims are preempted by the Clean Air Act. Although these courts have generally held that the Clean Air Act does not preempt all state common law claims, they have not been unanimous.

In June of 2014, the Iowa Supreme Court became one of the first state supreme courts to address this issue in Freeman v. Grain Processing Corporation. In a unanimous decision, the Iowa court held that the plaintiffs’ common law tort claims against a local corn wet milling facility were not preempted by the Clean Air Act or its state law corollary.

This Note contends that the Iowa Supreme Court’s preemption analysis was consistent with U.S. Supreme Court principles, and accordingly, that Freeman was correctly decided.

The court’s decision reached the correct result for three reasons. First, the court recognized the conceptual and remedial differences between private tort actions and public environmental regulation. Second, the court gave full meaning to the structural framework and statutory language of the Clean Air Act. Third, the Iowa court properly relied on U.S. Supreme Court precedent interpreting the Clean Water Act to interpret the similar Clean Air Act.

Freeman now allows Iowa citizens to redress actual harm caused by environmental air pollution through tort instead of relying on an overarching, bureaucratic regulatory system. Whether or not a citizen can actually demonstrate environmental harm — and collect damages from environmental polluters — was beyond the scope of the Freeman decision. As to the threshold question of whether common law claims can even coexist in an immense regulatory framework such as the Clean Air Act, Freeman v. Grain Processing Corporation correctly reaffirmed the role of common law torts in an age of environmental statutory regulation and determined that the Clean Air Act makes room for these state common law claims.

"Widow's Contractual Claim against BP Upheld by UK Supreme Court" Free Download

ASAD ALI KHAN, Advocate High Court Pakistan - Barrister-at-Law (Middle Temple)
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Headquartered in London, British Petroleum (BP) is one of the largest oil companies in the world. It is best known for the Deepwater Horizon disaster: the largest oil spill in history for which the company managed to wriggle its way out of trouble by paying record fines and pleading guilty to charges of eleven counts of manslaughter, two misdemeanors and a felony count of lying to Congress. It is fair to say that BP’s corporate reputation, an important value creating intangible asset and a yardstick for measuring overall trustworthiness, is rather poor indeed. The case of Braganza [2015] UKSC 17 is not related to the environmental catastrophe. Nevertheless, turning on whether the corporate giant ought to have paid death benefits to an employee’s widow, it readily demonstrates that BP lacks corporate social responsibility towards its employees and their family members. Braganza threw up two connected questions of principle: first of all, the meaning of the general requirement that the decision of a contractual fact-finder must be a reasonable one; and secondly, the proper approach of a contractual fact-finder who is considering whether a person may have committed suicide. In 2009, Mr Renford Braganza, whose contract of service precluded payment of death in service benefits in the event death resulted from the employee’s “wilful act?, disappeared while on duty as the chief engineer on the MV British Unity (an oil tanker in the mid-North Atlantic managed by BP with an exclusively Indian crew). Mrs Niloufer Braganza’s claim in contract against BP for death benefits amounted to US$230,265. BP’s internal inquiry about the disappearance identified six factors supportive of suicide and concluded that the most likely scenario was that Braganza jumped overboard deliberately.

At first instance, the Admiralty Court upheld the contractual claim but did not make a finding as to the cause of Braganza’s death. However, the Court of Appeal was of the view that Braganza had thrown himself overboard to commit suicide and it overturned the decision and upheld BP’s appeal on the contractual issue. By a majority of 3 to 2 the Supreme Court allowed Mrs Braganza’s appeal with the result that her claim in contract, for the sum of US$230,265 with interest, succeeded. The court held that on the factual matrix of Braganza’s case, the decision-maker should not simply have accepted the view of the inquiry, which was conducted for a different purpose, that suicide was the most likely explanation for Braganza’s disappearance. Lady Hale found no positive indications of suicide and she even made the slippery Durkheimian point that Braganza was a Roman Catholic and for him suicide was a “mortal sin?. Taking the view that “employment law is complicated and demanding in many legal systems, but employers are expected to know it,? her Ladyship dubbed the six factors “straws in the wind?. In the round, the court held that a decision taken by an employer that an employee had committed suicide (an event precluding entitlement to death in service benefits under his contract of employment) was not a rational or reasonable decision unless the employer had had it clearly in mind that suicide was such an improbability that cogent evidence was required to form the positive opinion that it had taken place.

As reasonable bystanders, we can only applaud the majority’s decision to allow the appeal because it is totally unethical that a company such as BP – which is best known for destroying the environment and serious bribery and corruption in its tanker division – should be able to exclude payments to an employee’s widow on a summary basis in the absence of any concrete evidence of suicide. Notably, Lord Neuberger would have dismissed the appeal because a combination of sufficiently cogent reasons justified the finding that Braganza took the unusual and tragic course of committing suicide. With the utmost of respect to Lord Neuberger, perhaps his Lordship ought to have made a bit more of Lady Hale’s Durkheimian point!

"The Constitutionalization of Indian Private Law" Free Download
The Oxford Handbook of Indian Constitutional Law (Sujit Choudhry, Madhav Khosla & Pratap Mehta eds., 2016, Forthcoming)
U of Penn Law School, Public Law Research Paper No. 15-15

SHYAMKRISHNA BALGANESH, University of Pennsylvania Law School
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In this Essay, I examine the interaction between Indian constitutional law and Indian tort law. Using the context of the Indian Supreme Court’s dramatic expansion of its fundamental rights jurisprudence over the last three decades, I argue that while the Court’s conscious and systematic effort to transcend the public law/private law divide and incorporate concepts and mechanisms from the latter into the former might have produced a few immediate and highly salient benefits for the public law side of the system, its long terms effects on India’s private law edifice have been devastating. The Court’s fusion of constitutional law and tort law has successfully cabined the independent efficacy, normativity, and analytical basis of equivalent private law claims in Indian lower courts. Coupled with the unique history of India’s various basic private law regimes, and the legal system’s concerted failure to strengthen these regimes after independence, the Court’s efforts have only served to undermine the overall legitimacy of India’s private law mechanisms.

"Selected Case Law of Czech Republic on the CMR Convention and New Civil Law in Effect in Czech Republic as of 1 January 2014" Free Download
CYIL - Czech Yearbook of International Law, 2015, Vol. VI, pp. 231-325, JurisPublishing Inc., Huntington, New York

ALEXANDER J. BELOHLAVEK, Independent
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The Czech courts do often deal with transportation matters. For example the Supreme Court of the Czech Republic decided on 28 March 2012 about the Scope of the CMR Convention. The court concluded that the Convention on the Contract for the International Carriage of Goods by Road (CMR Convention) shall apply to every contract for the carriage of consignments by road vehicles for remuneration, when the place of taking over the consignment and the place designated for delivery thereof, as specified in the contract, are situated in two different countries, of which at least one is a contracting party to the CMR Convention. The court concluded further in the same decision that a contract does not qualify as a contract of carriage if the person designated as consignor in the international consignment notes is not simultaneously the person or entity that ordered the carriage.

In another decision, namely in the judgment of 10 October 2012 the Supreme Court of the Czech Republic concluded that the CMR Convention does not regulate all issues related to international carriage by road. The Convention does not regulate the process of formation of the contract for carriage of things (consignment, goods) and its essential components. These issues, which are not regulated under the CMR Convention, must be examined according to domestic regulations as the governing substantive law determined according to the rules of private international law. The Convention on the Contract for the International Carriage of Goods by Road (CMR), binding on the Czech Republic, shall apply to a contract that entails the carriage of consignments by road vehicles for remuneration, when the place of taking over of the consignment and the place designated for delivery thereof, as specified in the contract, are situated in two different countries, of which at least one is a contracting party to the CMR Convention, irrespective of the states in which the registered office, place of business or place of residence of the parties is situated.27 If the parties entered into a contract of carriage,28 the liability for damage and losses incurred in the course of the carriage must be assessed according to the CMR Convention. Article 4 of the CMR Convention stipulates that the contract of carriage shall be confirmed by the making out of a consignment note. The absence, irregularity or loss of the consignment note shall not affect the existence or validity of the contract of carriage, which shall remain subject to the provisions of the CMR Convention. Article 9 of the CMR Convention stipulates that, unless proven otherwise, the consignment note shall be prima facie evidence of the making of the contract of carriage, the contents of the contract and the receipt of the consignment by the carrier. Information provided in the consignment note therefore establishes a refutable legal presumption regarding the existence or the contents of the contract of carriage, as applicable.

International Carriage of Goods by Road [CMR Convention] must be interpreted in conjunction with Article 29 of the CMR Convention. Article 3 of the CMR Convention stipulates that the carrier is responsible for the acts and omissions of their agents and servants, and of any other persons of whose services they make use for the performance of the carriage, as well as for the acts and omissions of the agents, servants and any other persons whose services are used by the carrier’s subcontractor or the subcontractor’s subcontractor, as long as such agents, servants or other persons are acting within the scope of their employment. Acts within the scope of one’s employment also include any acts of the person whereby he or she committed a criminal offence, thereby advancing only his or her own interests or the interests of a third party, not the interests of the carrier. In terms of Article 3 of the CMR Convention, the carrier is liable for the acts of their employees or, as applicable, persons of whose services they have made use in the carriage of the vehicle, even if these persons act contrary to the orders given by the employer; the reason is that the carrier is also liable for the proper choice of their employees or subcontractors, as applicable. The carrier is therefore also liable for any theft or embezzlement of goods, as the case may be, committed by the ‘persons used’ if the goods were entrusted to them in the performance of the contract of carriage. The carrier’s liability under Article 17(1) of the CMR Convention is strict liability. The carrier cannot be relieved of this liability by proving a lack of fault, but only by proving the existence of grounds for liberation. Liability for damage to the goods or losses caused during the carriage as a result of a criminal offence committed by the driver who participated in the theft of the goods rests with the carrier in compliance with Article 17(1) of the CMR Convention. Information provided in the consignment note establishes a refutable legal presumption regarding the existence or the contents of the contract of carriage, as applicable. This does not mean, however, that Section 610 of the Czech Commercial Code could not apply. Determination of the amount of damage under Article 23(2) and (3) of the CMR Convention is principally made by reference to the invoice (or any similar document) issued and submitted by the supplier (here the foreign supplier), without exceeding the limits of damages under Article 23(3) of the CMR Convention. When interpreting international treaties or agreements as the source of law, the national court may also invoke the case law of foreign courts that examined the same or a similar issue.

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This eJournal distributes working and accepted paper abstracts dealing with torts, product liability, and insurance law. Related articles may also be published in other Legal Scholarship Network journals, including Law and Economics; Litigation, Procedure, and Dispute Resolution; Health Law and Policy; Employment and Labor Law; and Environmental Law and Policy.

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Advisory Board

Torts & Products Liability Law eJournal

ANITA BERNSTEIN
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School

RICHARD A. EPSTEIN
Laurence A. Tisch Professor of Law , New York University School of Law, Stanford University - Hoover Institution on War, Revolution and Peace, James Parker Hall Distinguished Service Professor of Law Emeritus, University of Chicago - Law School

MARK GEISTFELD
Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law

MARK F. GRADY
Professor of Law, University of California, Los Angeles (UCLA) - School of Law

SAUL LEVMORE
William B. Graham Professor of Law, University of Chicago Law School

ROBERT L. RABIN
A. Calder Mackay Professor of Law, Stanford Law School

W. KIP VISCUSI
University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Law School, Research Associate, National Bureau of Economic Research (NBER), University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Department of Economics, University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics

RICHARD W. WRIGHT
Professor of Law, Illinois Institute of Technology - Chicago-Kent College of Law