Comparative Law Notes 3

LAW 6250
Professor Pedro A. Malavet

Class Notes Part Three

Chapter 4. The Comparative Method in United States Courts

A. The Plazo Decenal:
A Civil Code Case: In Re San Juan Dupont Plaza Hotel Fire Litigation

Comparative LawProf. Malavet
http://plaza.ufl.edu/malavet
Case Illustrations of the Comparative Method
Civil Code Provisions, In Re Dupont Plaza Hotel Fire Litigation, MDL-721, handout 2, page 1
Lésion Corporelle, Eastern Airlines v. Floyd, handout 2, page 22
Foreign law in American Courts, handout 2, page 40

DuPont Case Overview
Fire on December 31, 1986
Killed 97, injured over 100
First complaint filed January 5, 1987
2,411 plaintiffs in 276 complaints

DuPont Case Overview, 2
Defendants:
First phase: 247 (corporate veil; settled after two-month trial)
Second phase 48 (products and services liability; verdict after 14-month trial)
Third phase 89(insurance, verdict after two-week trial)

“Certification,” accepting
(1) questions of Puerto Rican law [must] be involved;
(2) said questions may determine * * * the outcome of the case;
(3) there are no clear precedents in the case law of the Puerto Rico Supreme Court;
(4) an account of all the facts relevant to said questions be included, clearly showing the nature of the controversy in which the questions arise. (Puerto Rico Attorney General asked for it; parr. 8, discussed).

Language
Articles and Sections: All civil codes are divided into "articles" not "sections." "Titles" are likewise not used, rather the Code is divided into "parts" and "chapters." However, when the Laws of Puerto Rico were compiled in a single collection the editor followed the American system of "Titles" and "sections.” fn. 8, p. 10.
case law (jurisprudencia)

The Civil Code commentators (tratadistas), ….

“State” law applies in Diversity
(fn. 9, p. 10 and accompanying text)
Rules of Decision Act, 28 U.S.C. sec. 1652 (1982)
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). In carrying out this duty we generally must resolve questions of local law which are dispositive of the case, see Meredith v. Winter Haven, 320 U.S. 228, 234, 88 L. Ed. 9, 64 S. Ct. 7 (1943), unless we determine that the abstention doctrine applies, Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).

What is “State” law
When there is no local case law directly on point, we can predict how the local courts would decide the matter if faced with a similar case. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 209, 100 L. Ed. 199, 76 S. Ct. 273 (1956) ("As long as there is diversity jurisdiction, 'estimates' are necessarily often all that federal courts can make in ascertaining what the state court would rule to be its law") (Frankfurter, J. concurring)).
Fn. 9.

Is this Spanish law really “Foreign”?
Fuero Juzgo (634)
Fuero Real (1255)
Las Siete Partidas (1265/1348)
La Nueva Recopilación (1597)
Recopilación de Leyes de los Reynos de las Indias (c. 1681)
Novísima Recopilación (Bourbon period) (c. 1752-1808)
Código Civil para Cuba y Puerto Rico (1898)

Civil Code applies here
Civil Code itself is the mandatory starting point in the analysis of Puerto Rico tort law. Valle v. Ame. Inter. Ins. Co., 108 D.P.R. 692, 695, 8 P.R. S. Ct. Off. Trans. 735, 736 (1979) (In overruling all prior tort law cases based exclusively on common law precedent, the Supreme Court stated: "Nowadays, it seems unnecessary to reiterate that, in Puerto Rico, the law on the field of damages is governed -- both in form and in substance -- by the civil law system.") cited as controlling in Santiago v. Group Brasil, Inc., 830 F.2d 413, 415 (1st Cir. 1987) (Products liability case).

Sources of Law:The Influence of tratadistas,
(1) written law (ley);
(2) the work of tratadistas (doctrina); and
(3) judicial opinions (jurisprudencia). Tratadistas (which literally translated means "treatise writers") are scholars who author detailed commentaries on the Civil Code, just like those scholars who analyze the common law. However, in the civil code system, the doctrina is an essential tool for interpretation of the law which may even be more influential than a court decision ***

Art. 1483
The owner of a building is liable for damages which may result from the collapse of the whole or a part thereof, if it should occur through the absence of the necessary repairs.
Article 1483 of the Puerto Civil Code, 31 L.P.R.A. sec. 4124 (1930)

Art. 1807
Should the damages referred to in the two preceding sections [Articles 1807 and 1808, 31 L.P.R.A. secs. 5146, 5147] arise from defects in construction, the third person who suffers it may only claim damages of the architect, or, in a proper case, of the constructor [sic, builder or contractor], within the legal period.
31 L.P.R.A. sec. 5147 (1930) (emphasis added).

Art. 1483, in full
The contractor of a building which may have been destroyed by reason of defects in the construction shall be liable for the losses and damages if said building should collapse within ten years, to be counted from the completion of the construction; and during the same time the liability shall be incurred by the architect who may have directed the work if the collapse is due to defects in the ground or in the direction.
If the cause [of the collapse] should be the noncompliance of the contractor with the conditions of the contract, the action for indemnity may be brought within fifteen years.

Substantive legal standard
In Geigel v. Mariani, 85 D.P.R. 46 (1962), the Puerto Rico Supreme Court held that Article 1483 creates a presumption of negligence on the part of the architect when the building collapses within the ten year period. The architect bears the burden of rebutting that presumption of negligence. Id.

Limitations or Jurisdictional?
The ten year period is also a plazo de caducidad: it is not a prescriptive period (a statute of limitations) which constitutes an affirmative defense, rather it is a jurisdictional period, that is, the claim does not exist in the eyes of the law once the ten years have passed. A court of law has no flexibility to hear such time-barred claims.

Sources, fn. 24
See II-3 Puig-Brutau, Fundamentos de Derecho Civil, pp. 126-127 (1983)(The unanimous view of the tratadistas is that the plazo decenal is the legal period of article 1809);
J. Cadarso-Palau, La Responsabilidad Decenal de Arquitectos y Constructores, Montecorvo, p. 333 (1976);
II-2 Albaladejo, Derecho Civil, p. 441 (1975);
31 Scaevola, Codigo Civil, p. 617 (1974).

Sources, continued
12 Manresa, Código Civil Español, p. 697 (1951);
compare Santos-Briz, "El Contrato de Ejecucion de Obra y su Problematica Juridica," Revista de Derecho Privado, May 1972 (Despite absence of express reference thereto, the tiempo legal of Article 1.909 (Puerto Rico's 1809) is the plazo decenal of Article 1.591 (Puerto Rico's 1483)) with IV Santos-Briz, Derecho Civil, pp. 394-97 (1973).

“Ruina” (fn. 17): is a very broad concept which includes:
(1) the complete collapse of the structure (ruina total);
(2) defects which endanger, though not completely destroy, the entire structure or which completely destroy an essential part of it (ruina parcial); and
(3) defects which make the structure or an essential part of it unsuitable for its intended use (ruina funcional). Maldonado Perez v. Las Vegas Dev., 111 P.R. Dec. 573, 574-575 (1981).

Note use of cases
Of course cases are cited, but note how often they are cited for their reliance on treatises.
Note references at pages
Powerlite, p. 19, “responsabilidad decenal” is liability towards third parties
and at
Rivera: p 18, 20, both ruina and filing of suit must occur within the ten year period

B. "Foreign Law" in U.S. Law Practice: Treaty Obligations: Eastern Airlines v. Floyd

1. Lésion Corporelle, Eastern Airlines v. Floyd, 22
Rules of Treaty Enterpretation, p. 24

Facts,
On May 5, 1983, an Eastern Airlines flight departed from Miami, bound for the Bahamas. Shortly after takeoff, one of the plane’s three jet engines lost oil pressure. The flight crew shut down the failing engine and turned the plane around to return to Miami. Soon thereafter, the second and third engines failed due to loss of oil pressure. The plane began losing altitude rapidly, and the passengers were informed that the plane would be ditched in the Atlantic Ocean. Fortunately, after a period of descending flight without power, the crew managed to restart an engine and land the plane safely at Miami International Airport. 872 F. 2d 1462, 1466 (CA11 1989).

Text in treaty context
If “ambiguous” then “treaties are constructed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.”
Do you think that Justice Marshall might have wanted to know that
in France stare decisis is not officially recognized and mostly legally forbidden?
that lower courts can ignore an appellate reversal within the same case?
it is not until the second time that an appellate court consistently rules on an issue that a decision becomes binding on the lower court within the same litigation?

French Civil Code Article 4
The judge who refuses to decide on the pretext of silence, obscurity, or insufficiency of law may be prosecuted for denial of justice.
French Civil Code Article 5
Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.

Art. 1 Swiss Civ. Code
The law regulates all matters to which the letter or the spirit of any of its provisions apply.
In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.
He is guided by the solutions consecrated by juristic opinion and case law.

Article 17 Warsaw Treaty
“The carrier shall be liable for damage sustained in the event of the death [mort] or wounding [blessure] of a passenger or any other bodily injury [ou . . . toute autre lésion corporelle] suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Art. 17: carrier is liable for passenger injury only when three conditions are satisfied:
1) there has been an accident, in which
2) the passenger suffered “mort,” “blessure,” “ou . . . toute autre lésion corporelle,” and
3) the accident took place on board the aircraft or in the course of operations of embarking or disembarking.
Lésion Corporelle: Language
French language is the “authentic” version of the text.

French Legal Meaning of Lesion Corporelle?

Language in the European Union
EU linguistic “big bang”headline (Jan. 2005), the EU went from 15 member states sharing 11 languages to 25 member states sharing 20 languages, but now they agree to use “just” 5 languages
Currently, there are 27 Member States

Lésion Corporelle: Senate English Translation
“any other bodily injury”

Lésion corporelle: Meaning?
“French legal meaning”
What did lésion corporelle mean to a French Jurist in 1929?

Sources
Bilingual Dictionary,
Other Translations,
French Legal Sources,

French Legal Sources,
(1) Legislation,
(2) Judicial Decisions,
(3) Scholarly Writing,

French Civil Code Article 5
Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.

Art. 1 Swiss Civil Code
The law regulates all matters to which the letter or the spirit of any of its provisions apply.
In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.
He is guided by the solutions consecrated by juristic opinion and case law.

French De Facto Jurisprudence
1. Jurisprudence constant, i.e., a series of concordant decisions;
2. arrêt de principe, i.e., a judgment intended to establish principle, either because the matter was unsettled or because it reverses prior decisions;
3. arrêt d’espece, a case limited to its own facts.

French Civil Code Art. 1382
Any act of man, which causes damages to another, obliges the person at fault to repair it.

French Cases, fn. 34 & fn. 35
Emotional distress awards were given under French law, ex., for injury to honor arising from adultery.
Emotional distress awards also available for family that loses a loved one to tortious conduct.
Whether relatives of dead or injured passengers can recover for mental suffering is different from whether or not the passengers themselves can so recover.

Scholarly Writings, finally?
Miller argues for a liberal interpretation of the term to include a broad range of injuries, including psychic (pain and suffering).
Commentators point out that French law allowed recovery of such damages by 1929, but only under general tort liability statute, article 1802.
Marshall again distinguishes by stating that it must have been the parties’ intent and understanding that this be included in Lésion Corporelle.

General Tort Damages Principle, not “Lesion Corporelle”
We find it noteworthy, moreover, that scholars who read “lesion corporelle” as encompassing psychic injury do not base their argument on explanations of this term in French cases or French treatises or even in the French Civil Code; rather, they chiefly rely on the principle of French tort law that any damage can “give rise to reparation when it is real and has been verified.” 2 Planiol & Ripert, supra, at pt. 1, No. 868. We do not dispute this principle of French law. However, we have been directed to no French case prior to 1929 that allowed recovery based on that principle for the type of mental injury claimed here — injury caused by fright or shock — absent an incident in which someone sustained physical injury.

Other countries
German: “infringement on the health”: English translation of a German translation of a French term.
Israel: recognizes damages for pain and suffering under the convention.
Commentary, fn. 35,
First there is a debate about the translation being “overbroad”
Debate over whether traumatism or perturbations should be translated broadly or narrowly.

Inconsistent with Negotiating History,
(Expressly) broader language was proposed and included in the final protocol
Textually narrower language was finally adopted.

Post-Signing Conduct,
1951: Change suggested by the French delegate to make it more expressly broad, which was opposed by the U.S. delegate
Montreal Agreement of 1966 is “inconclusive”,
Guatemala Protocol of 1971

Decisions of other Signatories,
Israeli decision ruling that Entebe passengers were entitled to recover for non-physical injury was distinguished and its reasoning rejected.
Finally, this is a strong imposition of liability and the Supreme Court was not prepared to construe it broadly.

Note reference to literature at the end of the opinion
Prosser and Keeton on torts, the final word here for decades
Fleming on the British view
Miller on the French view

Other countries
German: “infringement on the health”
Israel: recognizes damages for pain and suffering under the convention.
Commentary, fn. 35, 146.
First there is a debate about the translation being “overbroad”
Debate over whether traumatism or perturbations should be translated broadly or narrowly.

Post-Signing Conduct and Interpretations of the Signatories
1951: Change suggested by the French delegate to make it more expressly broad, which was opposed by the U.S. delegate
Israeli decision was distinguished.
Finally, this is a strong imposition of liability and the Supreme Court was not prepared to construe it broadly.

Amendments to the Convention
Discussion of substituting “affection corporelle” for “lesion corporelle”, p. 152
The Hague Protocol of 1955, p. 152
Montreal Agreement of 1966, p. 154
Guatemala City Protocol of 1971, p. 155

Teichner case
Supreme Court of Islrael, p. 155-156
1976 Entebe hijacking
Probably counter to the negotiating history of the Convention
“Desirable Jurisprudential Policy”

C. Foreign Law and Parties in US Courts: Basic Rules
Handout No. 2
Section C, pages 40-62

Common Causes of Action
contracts made or to be performed abroad,
foreign property holdings,
torts committed overseas,
estates of foreign domiciliaries leaving assets in the U.S. or
estates of Americans with real property abroad, and
foreign marriages, separations, and
child custody or support obligations.

Federal Procedure
FRCP 4(f), service of process
FRCP 28(b), depositions
28 USC § 1696, 1781-82, service of documents
FRCP 44.1
FRCriminalP 26.1

International Regime
Hague Conference on Private International Law and the
International Institute for the Unification of Private Law (UNIDROIT) in Rome
http://www.unidroit.org/

Treaties
Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (1969);
the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1970); and
the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (1972)

“Fact” vs. Judicial Notice
The basic principle of the common law has been that foreign law is a fact and must be pleaded and proved as a fact.
However, *** most American states and the federal courts have now adopted some form of judicial notice or quasi-judicial notice provision to facilitate the pleading and determination of foreign law.
The Challenge for the US Attorney:

Pleading/Notice
How will you “prove” it
Even if judicial notice is followed, you still have to litigate the matter and assist the court.
Experts are critical as is how to use them

Fact Approach
(1) It must be pleaded; a complaint that fails to comply is subject to a demurrer unless a presumption of equivalence with forum law applies.
(2) Under the traditional view, questions of foreign law go to the jury.
(3) Ordinary rules of evidence apply, which frequently prevents examination of material that could provide a proper basis for the determination of foreign law.
Fact Approach Continued
(4) Courts cannot conduct their own investigation, but must let the parties present the facts.
(5) A judicial decision on a point of foreign law does not constitute a precedent under the doctrine of stare decisis.
(6) On appeal, courts normally only consider questions of law. They will not disturb questions of fact decided in the trial court unless they are clearly erroneous.
Note the criticism at page 44, focused on weight to be given to authorities.

Judicial Notice
Findings to be made by the judge
The matter can be proved without formal evidentiary proof
Party with Burden of Proof is relieved of that burden
FRE 201 governs

Griffin v. Mark Travel Agency
“Lopez” not “Reyes” had authority under Mexican Law to serve papers on Defendant?
Issue of fact, subject to “clearly erroneous” standard of review
Mexico’s Acceptance of the Hague Convention
Signatory may choose to exempt certain methods
Evidence of the objections on the record was only that of Plaintiff
Finding was not clearly erroneous

The Law Approach: FRCP 44.1
NOTICE: A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing.
SOURCES: In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.
STANDARD OF REVIEW: The court's determination must be treated as a ruling on a question of law.

Judicial Discretion
Court “may” consider
Note the problem of judicial inquiry independent of the parties
Review is de novo

What if Notice is faulty or evidence insufficient?
California Law: If the law of an organization of nations, a foreign nation or a state other than this state, or a public entity in a foreign nation or a state other than this state, is applicable and such law cannot be determined, the court may, as the ends of justice require, either:
(a) Apply the law of this state if the court can do so consistently with the Constitution of the United States and the Constitution of this state; or
(b) Dismiss the action without prejudice or, in the case of a reviewing court, remand the case to the trial court with directions to dismiss the action without prejudice.

“Shall” take judicial notice
Notice that state rules tend to state that the court “shall” take judicial notice, the Federal Rules gives more flexibility
Mixed “shall”/”may” approachCalifornia
§ 452. Matters which may be judicially noticed. Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451. ••••
(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.

California
§ 453. Compulsory judicial notice upon request. The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:
(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and
(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

California
§ 454. Information that may be used in taking judicial notice.
(a) In determining the propriety of taking judicial notice of a matter, or the tenor thereof:
(1) Any source of pertinent information, including the advice of persons learned in the subject matter, may be consulted or used, whether or not furnished by a party.
(2) Exclusionary rules of evidence do not apply except for Section 352 [unduly time consuming, prejudicial, or confusing evidence] and the rules of privilege.

California § 454
(b) Where the subject of judicial notice is the law of an organization of nations, a foreign nation, or a public entity in a foreign nation and the court resorts to the advice of persons learned in the subject matter, such advice, if not received in open court, shall be in writing.

California
§ 455. Opportunity to present information to court. With respect to any matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action:

California § 455
(a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity, before the jury is instructed or before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.

California § 455
(b) If the trial court resorts to any source of information not received in open court, including the advice of persons learned in the subject matter, such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken.

California
§ 459. Judicial notice by reviewing court.
(a) The reviewing court shall take judicial notice of (1) each matter properly noticed by the trial court and (2) each matter that the trial court was required to notice under Section 451 or 453. The reviewing court may take judicial notice of any matter specified in Section 452. The reviewing court may take judicial notice of a matter in a tenor different from that noticed by the trial court.
(b) In determining the propriety of taking judicial notice of a matter, or the tenor thereof, the reviewing court has the same power as the trial court under Section 454.

California
(c) When taking judicial notice under this section of a matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action, the reviewing court shall comply with the provisions of subdivision (a) of Section 455 if the matter was not theretofore judicially noticed in the action.

California
(d) In determining the propriety of taking judicial notice of a matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action, or the tenor thereof, if the reviewing court resorts to any source of information not received in open court or not included in the record of the action, including the advice of persons learned in the subject matter, the reviewing court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken.

California: Court Expert
§ 460. Appointment of expert by court. Where the advice of persons learned in the subject matter is required in order to enable the court to take judicial notice of a matter, the court on its own motion or on motion of any party may appoint one or more such persons to provide such advice. If the court determines to appoint such a person, he shall be appointed and [reasonably] compensated ....

Notice requirement
ABA Model Rule 3.3, note 6, page 62
A lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

Corpus Juris Civilis:
Compilation of Justinian's Digesta, Codex and Institutiones, supplemented by the Novellae.
1) CODEX: there are two: 529, 534 a.d., compilation of laws from prior codes and constitutions, eliminating repetition and obsolete rules;
2) DIGEST: mostly opinions of jurists that had been issued as responsa;
Corpus Juris Civilis:
3) INSTITUTES: a basic law book intended for educational purposes, succinct statement of the new law;
4) NOVELLAE: special statutes, decisions or instructions issued by the Emperor after the code. From the Imperial Constitutions.

Graphic: Europe in Roman Times
Graphic: The Fall of the Roman Empire