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Reproduced with permission of 62 Law Quarterly Review (1946) 278-291

The Interpretation of Uniform Statutes

Francis A. Mann

In the early days of the post-war period it may be predicted with confidence that the coming years will witness the resumption of a great deal of international legislation in the sense of treaties the text of which is being agreed and recommended for general acceptance at international conferences by the representatives of numerous nations and which, if ratified, will by varying constitutional methods be infused into the municipal law of contracting states. The English statute book already contains numerous instances of Acts which result from such international legislation and the counterparts of which are to be found in other countries; only recently a statute of momentous importance was added to the series.[1]

Legislation of this type is undoubtedly to be welcomed as promoting uniformity of law. Yet it should not be overlooked that adoption of international legislation by Parliament is merely a step, however essential, along the road leading to the goal and that, in order to reach it, Courts and practitioners alike must make their no less significant contribution. As Scott L.J. has said, 'the maintenance of uniformity in the interpretation of a rule after its international adoption is just as important as the initial removal of divergences. That we should, in a branch covered by an international convention, preserve uniformity, is an obvious advantage, if it is judicially possible.'[2] Or to quote the terse formulation of an anonymous American writer, 'uniformity of the "judge-made" law is as essential as uniformity of the statute law'.[3]

Uniformity in the application of uniform statutes, however, involves grave problems of interpretation. They are of a peculiar character and merit more intensive attention than they have received in the past. The following observations are devoted to a review of the prevailing situation in England (I) and in some foreign countries (II) and to suggestions for a solution (III).

I.

The rules of interpretation of an English statute are well settled and familiar to all students. For the purpose of ascertaining the intention of the Legislature the meaning of statutes is primarily to be sought in themselves. The words of the statute must generally be interpreted in their ordinary grammatical sense, and if they are ambiguous, the Legislature's intention must be sought first in the statute itself, then in other legislation and contemporaneous circumstances, and finally in the four rules laid down in Heydon's Case [4] which enjoin the judge to have regard to the common law in force before the Act, to the mischief not provided for by the common law, the remedy appointed by Parliament and its true reason. The circumstances attending the passing of the Act such as travaux préparatoires, debates, etc., cannot be inquired into [page 278] and such principles as stare decisis or construction ejusdem generis apply to statutory interpretation no less than to the interpretation of deeds.

It is understandable that these and similar rules are prima facie followed when international legislation adopted by this country is to be interpreted by the Courts. For by the constitutional law of England a treaty which purports to alter the law requires an Act of Parliament before it becomes English law. Consequently it is tempting to argue that a statute adopting a treaty is on the same level as a statute relating, e.g., to copyhold and that the established rules of interpretation apply in both cases. This, indeed, is the view towards which the common lawyer instinctively tends to lean, though a more rational attitude has of late become discernible.

In order to obtain a reliable picture of prevailing tendencies it is necessary to distinguish between the four methods which, it seems, Parliament may employ when it is giving effect to an international Convention.

1. The statute may omit any reference to the treaty so that on its face it is in no way connected with the antecedent international discussions. In this case (of which the present writer knows no example) it is clear that for the purpose of the construction of the statute the treaty is as irrelevant as any other kind of travaux préparatoires.

2. The Act of Parliament may refer to the treaty, yet give independent effect to its provisions; without enacting its terms as such. Thus the British Nationality and Status of Aliens Act, 1988, is described in the title as 'an Act to amend the law relating to the national status of married women so far as is necessary for giving effect to a Convention ... signed on behalf of His Majesty at The Hague on the 12th April, 1930, and for purposes incidental to the matter aforesaid'. In the text of the statute, however, the Convention is not mentioned. The Maritime Conventions Act, 1911, and the Counterfeit Currency (Convention) Act, 1985, are of a similar type except that in both cases not only the title, but also the preamble refers to the Convention.[5]

The only decision relating to the construction of a statute which in this manner incorporates a treaty into the law of England seems to be The Danube II.[6] The question was whether a claim against the Crown for damage by collision was statute-barred alter six months under the Public Authorities Protection Act, 1898, although under section 8 of the Maritime Conventions Act, 1911, claims for the recovery of such damage become barred only at the expiration of two years. The Court of Appeal answered in the affirmative. Lord Sterndale found no inconsistency between the two Acts. Scrutton L.J,[7] expressly relied on the rule laid down by Lord Coke in Foster's Case [8] and frequently reaffirmed according to which an earlier statute is not impliedly repealed by a subsequent statute except in case of repugnancy; the learned Lord Justice failed to see any repugnancy and he did not discuss the peculiar character and object of the Act of 1911. [page 279]

3. A third type is represented by the Merchant Shipping (International Labour Convention) Act, 1925. It recites that certain draft Conventions contain 'the provisions set out in Parts I, II and II respectively of the First Schedule' and that 'it is expedient that for the purpose of giving effect to the said draft Conventions such provision should be made as is contained in this Act'. The statute then sets out the operative provisions. In this case, therefore, the draft Conventions contained in the Schedule cannot be a source of law. They are added merely informationis causa.[9]

The Act of 1925 has led to two important decisions in the House of Lords. Section I provides that where by reason of the wreck or loss a ship in which a seaman is employed his service terminates before the date contemplated by his agreement, he shall be entitled, in respect of each day on which he is in fact unemployed during a period of two months from the date of the termination of the service, to receive wages at the rate to which he was entitled at that date. It seems fairly obvious that it was intended to provide for the case where the contractual period of the seaman's service would have continued for not less an two months, but where owing to general rules of law the wreck or loss of the ship results in the immediate termination of the contract and the seaman, consequently, suffers hardship by loss of wages from the date of the wreck or loss until re-employment. The Convention emphasizes this intention by speaking of an 'indemnity' payable to the seaman. Yet in Ellerman Lines v. Murray [10] the House of Lords (Lord Blanesburgh dissenting) held that, if a ship is wrecked on February 28, 1929, and in the normal course the seaman's service would have terminated on March 8, 1929, he can recover wages for the full period of two months from February 28, 1929. Lord Dunedin with whom Lord Warrington concurred as well as Lords Tomlin and Macmillan held that the wording of the Act was plain and unambiguous. The permissibility referring to the scheduled Convention was left open by Lord Macmillan [11] while Lord Tomlin explicitly denied that 'assuming there any divergency between the draft Convention and the Act, it would be proper to resort to the draft Convention for the purpose of giving to the section a meaning other than that ... which is its natural meaning'.[12] The result of the decision has been severely criticised.[13] On the question [page 280] of method it is inconclusive and it is not at all certain whether Sir Arnold McNair is justified in deriving from it the rule that in case of ambiguity resort may be had to the Convention in the Schedule.[14]

The second decison relates to the construction of the word 'wreck' in section 1. In Barras v. Aberdeen Steam Trawling and Fishing Co., Ltd.,[15] Lords Buckmaster, Warrington, Russell and Macmillan held (Lord Blaneurgh dissenting) that that word had a well-established meaning in English law [16] and that, therefore, the settled principle applied according to which, where a word of doubtful meaning has received, a clear judicial interpretation, a subsequent statute incorporating the same word in a similar context must be construed so that the word is given the meaning which has previously been assigned to it.[17]

This decision necessitates a conclusion of great significance to the type of legislation discussed in the present paragraph. The House of Lords ignores the origin of the Act. It disregards the fact that the statute is passed to give effect to an international (draft) agreement, but places it squarely into the framework of English law and treats it as development rather than as a new departure.

4. It is less easy to draw a definite conclusion from those decisions which relate to the fourth type of uniform legislation. This is characterized by the fact that the Schedule which sets out the Convention and is attached to the statute is itself an operative part of it -- a source of law. Sometimes Parliament confines itself to adopting the Convention; it legislates in form, but in substance merely ratifies legislation carried through elsewhere. The most unequivocal example of this type of legislation is to be found in a number of statutes relating to Sea Fisheries.[18] The more widely known Carriage by Air Act, 1982, belongs to the same group. After reciting that 'it is expedient that provision should be made for giving effect to' the Warsaw Convention, the Act lays down in section I that the provisions of the Convention 'as set out in the First Schedule to this Act shall ... have the force of law in the United Kingdom'. The various Treaty of Peace Acts and the Orders in Council made thereunder in 1919 and 1920 probably also belong to this category, although they do not adopt the Treaties of Peace as a whole, but only selected parts. Sometimes, however, Parliament adopts the Convention only subject to certain modifications introduced by the national Legislature and in that case the alterations will have to be clearly ascertained and distinguished, since for purposes of construction they may not be on the same footing as the original text of the treaty. Thus the preamble of the Carriage of Goods by Sea Act, 1924, refers to the international conferences at which the Hague Rules have been agreed [page 281] and amended and continues that 'it is expedient that the said Rules as amended and as set out with modifications in the Schedule to this Act ... should ... be given the force of law'. Apart from the modifications which are national legislation in every sense of the word, the statute, therefore, represents transformed international legislation.

In these circumstances it would not have been difficult to regard the Carriage of Goods by Sea Act, 1924, as a fresh chapter in the evolution of English law. In matters of maritime law, it is true, the pre-eminence English law and its impact upon foreign legal systems are such as to justify the English Courts' reluctance to depart from well-established principles and to facilitate the assumption of a close connexion between English law and the international Convention. Yet the Courts have been inclined to go further and to find identity of meaning or continuity of development established where proof might still have been required. Thus, when the House of Lords had to interpret the words 'management of the ship' in Article IV, Rule 2 (a) of the Schedule [19] Viscount Hailsham L.C. pointed to the long judicial history of these words in England and continued [20]

'I am unable to find any reason for supposing that the words as used by the Legislature in the Act of 1924 have any different meaning to that which has been judicially assigned to them when used in contracts for the carriage of goods by sea before that date; and I think that the decisions which have already been given are sufficient to determine the meaning to be put upon them in the statute now under discussion'.

Lord Sumner expressed himself in similar vein and added the interesting observation [21] that

'of foreign decisions, of course, the Legislature is not deemed to take notice and although the Conference was doubtless well acquainted with the United States cases, it has not yet been held that the legislature of this country is deemed to know what those whose reports or conventions it affirms have been familiar with'.

A very different spirit, however, pervades a slightly later decision of the House of Lords relating to the construction of the words 'reasonable deviation' in Article IV, Rule 4 of the Schedule.[22] Lord Atkin emphasized that for the sake of uniformity 'the Courts should apply themselves to the consideration only of the words used without any predilection for the former law', though he added the qualification that 'words used in the English language which have already in the particular context received judicial interpretation may be presumed to be used in the sense already judicially imputed to them'.[23] The broadest statement came from Lord Macmillan [24] who did not mention the presumption favoured by Lord Atkin:

'It is important to remember that the Act of 1924 was the outcome of an international conference and that the rules in the Schedule have an international currency. As these rules must come [page 282] under the consideration of foreign Courts it is desirable in the interests of uniformity that their interpretation should not be rigidly controlled by domestic precedents of antecedent date but rather that the language of the rules should be construed on broad principles of general acceptation'.

In cases relating to other than maritime law the absence of a principle guiding the approach to the construction of uniform statutes is no less noticeable. No attempt appears ever to have been made to apply to the Treaties of Peace any of the peculiarly English rules of construction and when it was argued before the House of Lords that according to English conceptions the 'charge' created by the Treaty of Trianon in favour of the Administrator of Austrian Property did not prevent an Austrian creditor from enforcing his debt against his English debtor, Lord Sumner pointed out that no doctrine corresponding to the mortgagor's equity of redemption was contemplated by the framers of the Treaty and that the English doctrine of the legal and equitable estate and the rights arising there from could not reasonably be supposed to have been in the minds of the 'parties'.[25] On the other hand the decision of the House of Lords in Kramer v. Attorney-General [26] discloses perhaps a somewhat narrower conception. The question was whether the appellant who was both a British subject and a German citizen could properly be described as a German national within the meaning of the Treaty of Peace Order so as to subject his property to the charge created in favour of the Administrator of German Property. Although it recognised that reference could be made to the Treaty to ascertain the true construction of the Order, the House gave an affirmative answer on the ground that 'both in the Treaty of Peace and in the Order the expression "German national" means a person who is by German law a subject of Germany'.[27] If it was the Treaty rather than the Order which had to be construed,[28] then it would have been arguable that neither the German nor the British law of nationality had any claim to predominance, but that for the purpose of the Treaty the nationality should be determined by what is known as the principle of effective nationality.[29]

That the inherent objects of uniform legislation are a paramount guide for its interpretation was emphasized in connexion with the Carriage of Goods by Air Act, 1982, both by Greer L.J. and by Grene L.J. (as he then was).[30] The former said [31] that 'if there be any doubt or ambiguity in the language used, the statute should be so interpreted as to carry out the express and implied provisions of the Convention', while the latter [page 283] stressed the establishment of a uniform international code as one of the main objects of the Convention and regarded it as 'essential to approach it with a proper appreciation of this circumstance in mind'.[32]

This short, but probably incomplete review of the prevailing. English practice reveals the lack of a principled approach to the problems involved in the interpretation of uniform legislation. In recent years the Courts have shown greater understanding of them, but the impact of the existing precedents is such that on the whole the tendency of applying municipal rules of statutory interpretation is bound to persist. Whether the results reached by the Courts were right or wrong, is a matter of indifference to this paper which is concerned exclusively with methods. That these are uncertain and haphazard, is undeniable.

Broadly speaking, the present position may probably be summarized as follows : --

(1) English Courts tend to regard uniform legislation as a step in the development of English law.

(2) Accordingly they are inclined to apply to such legislation canons of construction developed by English municipal law.

(3) In particular English Courts are likely to construe such legislation in the light of previous English authorities.

II.

The treatment which has been meted out to uniform legislation in foreign countries is fundamentally different.

This is due to a variety of reasons. In the first place, almost everywhere the municipal rules of statutory interpretation are so much more liberal and flexible than in England that at the outset they permit methods of construction which readily conform to the particular requirements of uniform legislation; this is notoriously so on the Continent where precedents have persuasive as opposed to binding authority, where the historical method of interpretation is freely resorted to and where the intention and object of legislation is of far greater weight than its language,[33] and even in the United States the rigidity of the common law has of late been greatly alleviated.[34] Secondly, the constitutional methods of transforming treaties into municipal law are in most countries such that the character of treaties is preserved: they are not usually given the form of statutes in the ordinary sense of the word. Thirdly, many countries have developed specific theories relating to the interpretation of uniform legislation, and these have undoubtedly contributed to an understanding of its problems.

1. By the law of the Third French Republic the President negotiates and ratifies treaties, but in many cases his ratification is dependent on the prior assent of Parliament which is given in the form of a law duly promulgated.[35] According to the constant formula of the Cour de [page 284] Cassation, 'les traités diplomatiques régulièrement promulgués en France ont force de loi et doivent, à ce titre, être appliqués par l'autorité judiciaire'.[36] The judicial interpretation of treaties which have been properly promulgated is restricted to, cases where the dispute is 'd'ordre privé'[37] and where the bilateral interpretation by a supplemental Convention or an exchange of letters has not intervened.[38]

It is within these limits that the problem of methodology arises. It has been most elaborately treated by Edouard Bartin [39] whose discussion merits a summary. He poses the question whether Article 1156 sqq. of the Code Civil which deal with the interpretation of agreements are applicable; if so it would be necessary to ascertain 'l'intention des parties, plus précisément l'intention des négociateurs qui les représentaient'. Bartin's answer is in the negative: --

'Le traité s'interprète, pour les juges français, par référence aux dispositions correspondantes de la loi française, qui interviennent alors comme dispositions complémentaires .... Il se rattache alors automatiquement à l'ensemble du droit interne français, de telle sorte que ses prescriptions insuffisantes s'éclairent et se complètent naturellement par l'addition nécessaire, qu' y font les juges français, du droit français.'

The only exception is made for Conventions 'qui impliquent tant par l'origine que par le charactère de leurs dispositions, une sorte d'unification', i.e. for Unions: in interpreting them, the intention of the States who are parties to them is the supreme test.

This distinction, which, indeed, touches the kernel of the problem, has been adopted by Mestre,[40] but is opposed by Maury [41] and Niboyet,[42] who admit a psychological tendency to have recourse to national legislation, but regard it as unsatisfactory from a practical point of view (since [page 285] it treats divergent national interpretations as normal and legitimate), as theoretically criticizable (since it can be supported only by the dualistic theory of law) and as inconsistent with the actual French practice.

This, however, is meagre and inconclusive. It is still dominated b, the decision of the Cour de Cassation in the famous case of the Duke of Richmond.[43] The third Duke was the owner of the Duchy of Aubigny which during the Napoleonic wars was sequestrated. By a secret clause attached to the treaty of 1814 it was provided that 'le séquestre opposé sur le duché d'Aubigny et sur les biens qui en dépendent sera levé, et le duc de Richmond sera remis en possession de ces biens tels qu'ils sont actuellement'. The third Duke had died before 1814 an4 was succeeded by the fourth Duke who, relying on the wording of the secret clause, claimed the lands to the exclusion of those who according to French rules of private international law would have been entitled to share in the land. In the course of its decision by which the Duke's claim was rejected, the Cour de Cassation said:

'Les traités diplomatiques doivent étre entendus dans le sens qui les met en harmonie avec le droit civil et public admis chez les peuples qui contractent; que l'interprétation donnée à la clause par l'arrét attaqué la met trait en opposition avec toutes les lois, tant du droit civil que du droit public français.'

This formula is not free from ambiguity, but it supports the tendency which Bartin favours and which, in fact, finds expression in one or two other cases.[44] No decision has propounded any definite rule,[45] nor is there any case which relates to the interpretation of such Conventions as establish Unions.[46]

2. The position in pre-Nazi Germany was reversed, inasmuch as theoretical discussion was rare and insignificant, but numerous judicial authorities led to the existence of a firm rule of practice.

According to the constitution of 1919 treaties were concluded by the President of the Reich, but required the consent of the Reichstag if they referred to matters of federal legislation (Art. 45). They were published in the Official Gazette and thus became law.

On numerous occasions German Courts have been called upon to construe treaties which have thus been incorporated into German law. Such treaties usually received what one may describe as a liberal construction.[47] In recent cases relating to treaties other than the Treaty [page 286] of Versailles, which was put on a distinct footing,[48] the Supreme Court emphasized the guiding principle that [49]

'in the first place such common intention of the contracting parties is decisive as is to be deduced from the text, the object and the history. In this connexion the literal interpretation of individual words is not permissible, but the true intention is to be ascertained from the whole of the circumstances. In the case of doubt, however, greater significance will have to be attached to the text of an individual provision than in connexion with the interpretation of rules of municipal law by the judge of the country of origin'.

Thus in a particularly illuminating case [50] the question arose when a loan was 'created' within the meaning of the German-Swiss Gold Mortgage Convention; according to German law a loan is 'created' at the time of the actual advance of the money, while according to Swiss law the date of the contract is decisive. The Supreme Court held that it was wrong to have resort to the German conception unless and until all possibilities of ascertaining the contracting States' common intention had been exhausted and that for this purpose the Court had to allow the parties to procure the evidence of representatives of the two Governments. In view of the decision of the Court of Appeal in The Danube II.[51] it may be of interest to mention another case [52] which related to the question whether German war-time regulations interrupting the running of the Statutes of Limitations for a period of two years applied to claims under the International Railway Freight Convention which fixed the period at one year from the date of the dispatch of the goods. The Supreme Court answered in the negative on the ground that the Convention intended to bring about substantial uniformity of law and that it would be irreconcilable with the uniform character of the legislation in all participating countries if a contracting State unilaterally altered the provisions of the Convention.

It may be said that this practice [53] is of limited value for comparative law, because it relates to the construction of treaties as such rather than statutes derived from treaties. There is little doubt, however, that that practice would extend to the case in which Germany re-enacts the text of a Convention and gives it statutory form. This happened in the case of the Bills of Exchange Act based on the Geneva Convention of 1930.[54] The paramount rule governing its construction is consonance with the [page 287] unification intended by the Act; the purely formal view that the statute is a piece of national legislation has generally been rejected; it follows that legal conceptions known to other German legislation and occurring in the statute must be construed not in the sense of German law as such, but in the sense adopted by the community of contracting States;[55] 'were this not so, the agreement achieved by the Convention would be afflicted with a "concealed dissensus".'[56]

3. The practice of the United States of America as to the treatment of uniform legislation provides material which is particularly instructive for an English lawyer.

In this connexion it is not the practice of the Supreme Court relating to the interpretation of treaties that requires attention. Under Art. VI (2) of the Constitution treaties when ratified by the Senate are the supreme law of the land and it is therefore only natural that they are construed as treaties in the narrow sense of the term; their interpretation has come up for decision in innumerable cases which are important contributions to the development of public international law proper, but have no bearing on the peculiar problem dealt with in this paper. On the other hand there are instances in which Congress has not ratified the treaty as such but has enacted legislation transforming the treaty into statute law. Thus the Carriage of Goods by Sea Act, 1936,[57] adopted the Hague Rules, subject to certain modifications. According to the material available in this country no authoritative pronouncement has as yet settled the principles governing the interpretation of such statutes.[58]

It is the attitude adopted by American Courts towards Uniform State Laws that should attract the English lawyer's interest. Mr. Lawson [59] has recently given an illuminating description of the movement which began at the end of the last century and has since led to the acceptance in many State jurisdictions of model laws approved by the National Conference of Commissioners on Uniform State Laws; the Uniform Negotiable Instruments Act and the Uniform Warehouse Receipts Act are particularly well-known examples, but there are very many other Acts which have found a large measure of acceptance. Wherever adopted these Acts represent municipal law of the adopting State. It follows that a Michigan Court, for instance, when called upon to construe a Uniform Act adopted in other States, is faced with the same problem as that which confronts an English judge who has to construe an Act of Parliament resulting from international legislation.

In most cases, it is true, the Michigan Court would receive some guidance from a clause which since about 1913.[60] has been included in [page 288] all Uniform Acts and which provides that the Act 'shall be so interpreted and construed as to effectuate its general purpose of making uniform the law of those States which enact it'. Yet in almost every field covered by a Uniform Act there exists a majority of State decisions which, in effect, reject such liberal construction as would promote uniformity of law, but prefer to construe the law strictly in favour of the pre-existing law of the State.[61] It was this tendency which was disapproved, though apparently not entirely eliminated, by the United States Supreme Court when, speaking through Mr. Justice Hughes, it gave the following authoritative ruling:[62]

'It is said that under the law of Louisiana, as it stood prior to the enactment of the Uniform Warehouse Receipts Act, the Commercial Bank would not have taken title as against the Canal-Louisiana Bank; and it is urged that the new statute is but a step in the development of the law and that decisions under the former State statutes are safe guides to its construction. We do not find it necessary to review these decisions. It is apparent that, if these Uniform Acts are construed in the several States adopting them according to former local views upon analogous subjects, we shall miss the desired uniformity and we shall erect upon the foundation of uniform language separate legal structures as distinct as were the former varying laws. It was to prevent this result that the Uniform Warehouse Receipts Act expressly provides (section 57): "This Act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those States which enact it." This rule of construction requires that in order to accomplish the beneficial object of unifying, so far as this is possible under our dual system, the commercial law of the country, there should be taken into consideration the fundamental purpose of the Uniform Act and that it should not be regarded merely as an off-shoot of local law.'

III.

The preceding discussion proves the existence of considerable distinctions between the English and the foreign approach to the interpretation of uniform laws. They are indeed such as to be capable of jeopardizing the very object which these laws pursue.

The root of the trouble, it is submitted, lies in the fact that English constitutional law requires an Act of Parliament to incorporate treaties into the English legal system. It is, however, neither necessary nor possible to suggest that, in order to open the way to a more satisfactory solution of the problem, this requirement should be dispensed with. It would be a sufficient remedy if it became generally and firmly realized that in the case under discussion legislation by Parliament is, broadly speaking, merely machinery rather than a source of law, that, in other [page 289] words, Parliament is not the real law-giver, but merely the law-transformer and that it is only the same form that Parliament employs to discharge inherently different functions. This distinction, it is true, is not universally applicable. It would clearly be excluded where the Act of Parliament omits any reference to the International legislation from which it results (above, I. 1), and its admissibility may be doubtful or limited in other cases (see above, I. 2 and 8). But where the statute confines itself to enacting a convention scheduled to it, even subject to amendments or modifications (see I. 4, above), the suggested manner of approach is readily justifiable.

If it is accepted as a premise, then some important consequences should follow.

In the first place the task of the judge would be unequivocally defined. It would consist in ascertaining the intention of the parties to the convention. The intention of the legislator in Westminster would, on the whole, be irrelevant.

Secondly, the usual rules of statutory interpretation would not bind the judge nor would he be subject to the principle of stare decisis.

Thirdly, the judge would not have to apply English municipal rules relating to the interpretation of contracts or deeds, but would be free to apply those rules of interpretation which are undeniably more appropriate to the peculiar task confronting him than the somewhat rigid and very special rules of interpretation which distinguish the English legal system from all others, viz. the rules of interpretation applicable to treaties and evolved by the rich practice of international tribunals and such municipal Courts as the Supreme Court of the United States of America.

This would be a result which would be desirable both from a practical and a theoretical point of view. There can be no doubt that it is only in very exceptional cases that a term employed by the authors of a treaty is meant to be 'an off-shoot of local law' (as Mr. Justice Hughes has put it); there is therefore no reason to suppose that the treaty is intended to be 'but a step in the development' of local law, and that it could be adequately construed in the light of purely municipal practice. If an international tribunal would have to interpret it (as well it might in the event of one of the signatories being made internationally responsible for a breach of the treaty), it would undoubtedly apply those principles which, over along period of years, public international law has developed. For a national Court to deviate from them is therefore not without dangers. It should not be objected that they are vague and difficult to define or to find -- in truth they constitute a body of law which, notwithstanding inevitable uncertainties in some details, may be counted among one of the most firmly established and most richly documented achievements of public international law.[63] Nor would English judges lack experience in the interpretation of treaties. There are numerous cases in the books in which English judges with facility and resourcefulness [page 290] have undertaken and discharged the task of construing treaties,[64] and in this connexion they have not only made themselves free from all fetters which their municipal rules would have imposed upon them, but have also had resort to such auxiliaries as travaux préparatoires or comparative material.[65] Moreover they have proclaimed the necessity for what is known as 'liberal interpretation'[66] -- in short they have followed principles which are equally appropriate where the object of interpretation is not a treaty pure and simple, but a treaty in the form of a statute.

The suggested solution would entail the substantial advantage that, for the particular field where uniformity is the very aim, it would assimilate English practice to that prevailing abroad and would thus contribute to the fulfillment of the object of unifying legislation. The danger of divergences of interpretation, as various international Conferences have recognized,[67] cannot for the present be excluded. But its reduction should be welcomed.

It may well be that the practice of the English Courts is so well settled as to make it unlikely that the adoption of a principle on the lines of that suggested above would be possible, even if it were found to be attractive. If so, it may be worth while considering whether future statutes incorporating a treaty into the law of England should not contain a section to the effect that the Courts should construe them according to the principles which an international tribunal would apply.[68] For these are the 'broad principles of general acceptation' the application of which was urged by Lord Macmillan.[69] [page 291]


FOOTNOTES

1. Bretton Woods Agreements Act, 1945; Bretton Woods Agreements Order in Council, 1946, S. R. & O., 1946, No. 36.

2. The Eurymedon, [1988] p. 41 at p. 61.

3. 29 (1915-1916) Harv. L. B. 641.

4. (1584) 3 Co. Rep. 7a.

5. See also the Dangerous Drugs Act, 1925; the Geneva Convention Act, 1937; or the Patents, etc. (International Conventions) Act, 1938.

6. [1921] p. 183.

7. At p. 186.

8. (1614) Rep. 56b, 63a. This Case should be compared with the German decision below, note 51.

9. For similar instances see the Anglo-Portuguese Commercial Treaty Acts, 1914 and 1916; the Employment of Women, Young Persons and Children Act, 1920; the Treaties Washington Act, 1922; the Arbitration Clauses (Protocol) Act, 1924; the Arbitration (Foreign Awards) Act, 1930; Merchant Shipping (Safety and Load Line Conventions) Act, 1932. An interesting and difficult point arising from a divergency between the Arbitration (Foreign Awards) Act, 1930, and the Convention attached to it is mentioned by M. Wolff, Private International Law (1945) p. 261 note 4; see also Nussbaum, 56 (1942) Harv. L. R. 219.

10. [1931] A. C. 126.

11. At p. 149. Lord Blanesburgh examined the Convention 'merely as a matter of interest' (p. 143).

12. At p. 147. In the Court of Appeal Scrutton and Greer L.JJ. had stated that he words are plain and unambiguous and we are therefore not entitled to look at the preamble or draft Convention ... for the purpose of giving a special meaning to words which are in themselves plain and unambiguous': [1930] p. 197, 201, 209.

13. Allen, Law in the Making (3rd ed.) p. 423; Eastwood, The Journal of the Society of Public Teachers of Law (1935) p. 5; Graham-Harrison, ibid. p. 37; see also Gutteridge 8 (1933) Tulane L. R. 1 at p. 9. Section 7 of the Act of 1925 provides that 'this Act ... shall be construed as one with the Merchant Shipping Acts, 1894 to 1923'. But this provision cannot supersede the object of the Act of 1925 as stated in its title, preamble and text.

14. British Year Book of International Law (1932) 120. This suggestion is supported by Scrutton and Greer L.JJ. (above, note 12) and by Lord Parker in The Cairnbahn [1914] p. 25 at p. 30.

15. [1933] A. C. 402.

16. The Olympic [1933] p. 92.

17. On this principle see Allen, l.c. at p. 419 and the authorities there referred to Gutteridge, l.c. at p. 17 says of the decision of the House of Lords that it introduces an element which was never contemplated by the framers of the Convention.

18. The first of the series is the Fisheries Act, 1843; after reference to a Convention with France in the title and the preamble it provides in that 'the said Articles shall be binding on all persons and shall have the force of law as fully as if they were herein severally and specially enacted.' For similar statutes see Halsbury, Statutes, sub verbo Fisheries.

19. Gosse Millard, Ltd. v. Canadian Government Merchant Marine, Ltd., [1929] A. C.

20. At p. 230.

21. At p. 237.

22. Stag Line, Ltd. v. Foscolo Mango & Co., [1932] A. C. 328.

23. At p. 343.

24. At p. 350. Italics supplied.

25. Josef Inwald A. G. v. Pfeiffer (1928), 44 T. L. R. 852 (H. L.). On this case see Maugham J. (as he then was) in Administrator of German Property v. Knoop, [1933] Ch. 439 at p. 454.

26. [1928] A. a. 528.

27. At p. 537 per Lord Cave L.C.

28. At p. 533 per Lord Cave. This was clearly possible, since s. 1 of the Order provides that the sections of the Treaty set out in the Schedule should have full force and effect as law.

29. See Article 5 of the Hague Convention concerning certain questions relating to the conflict of nationalities, 1930, in Hudson, International Legislation V, 359; Pfeiffer, Das Problem der effektiven Staatsangehörigkeit (1933); Schwarzenberger, International Law I. 151-153, with references to the decisions of international tribunals. In view of Article 305 of the Treaty of Versailles it would have been particularly appropriate for an English Court to have regard to the rule applied by international tribunals.

30. Grein v. Imperial Airways, Ltd., [1937] 1 K. B. 50.

31. At pp. 66-67.

32. At p. 76; see Scott L.J., note 2 above.

33. See, e.g., Professor H. A. Smith, Journal of Comparative Legislation and International Law (3rd series) 9 (1927) 153; Gutteridge, l.c. passim; Amos and Walton, Introduction to French Law (1935) p. 11.

34. Thus legislative material is freely used for the purpose of assisting statutory interpretation. See the informative note 50 (1936-1937) Harv. L. R. 822, and for a very recent case Markham v. Cabell, U.S. Supreme Court Advance Opinions (1945-1946) 168.

35. See Article 8 of the Constitutional Act of July 16, 1875, according to which treaties of peace and commerce, treaties involving the finances of the State and treaties 'qui touchent à l'état des personnes et au droit de propriété des Français à l'étranger' require Parliament's assent. It has been the practice to obtain it in many cases in which, according to the text of the Act, it might not have been strictly necessary. See Masters, International Law in National Courts (1932) pp. 127 sqq.

36. This is old practice. See, e.g., Cour de Cassation, November 28, 1834, S. 1834. 1. 822; January 10, 1842, S. 1842. 1. 236; May 19, 1863, S. 1863. 1. 353; July 27, 1877, S. 1877. 1. 485; December 15, 1928, D. H. 1929, 69; February 28, 1930, Clunet, 1930, 1030, and many others.

37. Recent cases have been collected in Annual Digest (1931-1932) pp. 370-371; see in particular Cass. Crim., February 23, 1912, Clunet 1913, 182; March 22, 1923, Clunet, 1923, 847; August 9, 1923, Clunet, 1924, 396. While the Conseil d'Etat denies to the Courts all power of interpreting treaties, many writers have attacked the distinction made by the Cour de Cassation and favour unrestricted interpretation: see, e.g., Appert, Clunet, 1899, 432; Niboyet, S. 1932. 1. 257 (note); Rosenmark, Académie Diplomatique Internationale (Séances et Travaux) V (1931) 154 and Dictionnaire Diplomatique II, 959. According to Van Houtte, L'interpretation des traités internationaux, Melanges Mahaim (1935) II 372 sqq. the practice of the Belgian Courts is similar to that of the French Court de Cassation.

38. Cass. Civ., February 2, 1936, S. 1986. 1. 257.

39. Principes de droit international privé (1930) pp. 104 sqq. and Rec. 31 (1930) 614; see also Duez, Rev. Gén. 1925, 429, 441, who formulates the two possibilities as follows, -- either we assume a reception of the treaty by municipal law, then the judge is entitled to ignore public international law and to apply municipal law pure and simple; or we assume a renvoi from municipal law to public international law, then the judge must apply the latter. As to Belgium, see Muus, Revue Générale de droit international et de législation comparée, 1934, 451.

40. Rec. 38 (1931) 237 at p. 299 sqq.; see also Naurois, Les Traités Internationaux devant les jurisdictions nationales (1934) pp. 176 sqq.

41. Rev. 57 (1936) 447 sqq.

42. Traité de droit international privé français, III (1944) 375, 382 sqq.; also Revue Critique, 1935, 1, with a detailed review of the French cases some of which do not seem to be really relevant.

43. Cass. Civ., June 24, 1889, S. 1839; 1, 578.

44. See, in particular, Trib. Civil de Bayonne, February 8, 1887, Clunet, 1887, 326; Trib. Civil de Bordeaux, July 11, 1892, Clunet, 1892, 937 (affirmed on slightly different grounds by Cour de Bordeaux, February 21, 1893, Clunet, 1893, 565); cf. Cour de Paris, February 3, 1926, Clunet, 1927, 73. Cass. Req., November 26, 1929, Clunet, 1930, 159, refers to the intention of the High Contracting States for the purpose of construing the Treaty of St. Germain.

45. See the article by Niboyet, above note 42, and Bioux, La position de la jurisprudence français vis à vis les traités (Lille, 1933).

46. But see the decision of November 26, 1929, above note 44.

47. For the older practice see Fontes Juris Gentium A. II. 1. pp. 150 sqq. Representative recent decisions are Supreme Court, February 2, 1931, RGZ 131, 250 and A.D. 1931-1932, No. 207 (League of Nations); November 11, 1933, RGZ 142, 241 (International Railway Convention); January 18, 1935, RGZ 146, 325 (Trade Mark Convention); September 17, 1935, RGZ 149, 83 (Legal Protection Clause in Commercial Treaty). See, generally, the discussion in Frankenstein, Internationales Privatrecht I, 295, and Melchior, Grundlagen des internationalen Privatrechts, pp. 178 sqq., who treats the problem under the heading of classification. In the same sense Nussbaum, Internationales Privatrecht (1932) p. 51, who says that terms are to be classified from the point of view of local municipal law.

48. Supreme Court, July 1, 1926, RGZ 114, 188; February 27, 1930, Die Deutsche Rechtsprechung auf dem Gebiet des internationalen Privatrechts, 1980, No. 159; February 14, 1932, RGZ 137, 1, and A.D. 1931-1932, No. 206. The Supreme Court explained that the 'objective sense' of a provision was decisive.

49. May 20, 1922, RGZ 104, 352; November 8, 1939, RGZ 130, 220; February 4, 1931, JW 1932, 243, and A.D. 1931-1932, No. 210, and Clunet, 1933, 164, 1008, with note by Philonenko; May 20, 1933, RGZ 140, 353; Berlin Court of Appeal, November 7, 1935, JW 1936, 338. All these decisions relate to the German-Swiss Gold Mortgage Convention.

50. See the decision of February 4, 1931, note 49.

51. [1921] p. 183.

52. February 22, 1919, RGZ 95, 33. In connexion with the same Convention the Supreme Court repeatedly emphasized that gaps deliberately left open by the Convention were to be filled by a reference to municipal law: February 25, 1904, RGZ 57, 142; November 16, 1907, RGZ 67, 171.

53. It has not always been consistent. Thus in the decision of March 14, 1932, RGStr 66, 165, relating to the German-Polish Convention about frontier traffic the term 'place of the undertaking' was interpreted in the light of German legislation employing the same phrase.

54. Hudson. International Legislation, V, pp. 516 sqq.

55. See, generally, Staub-Stranz, Kommentar zum Wechselgesetz (1934) pp. 49 sqq.; Ulmer, Das Recht der Wertpapiere (1938) p. 174; see also Court of Appeal at Stuttgart, November 13, 1936, JW 1937, 548.

56. Professor Martin Wolff, Ueber den Verkehrsschutz im neuen Wechselrecht, Festgabe fur Wieland (Basle, 1934) pp. 438, 445 sqq.; also Internationales Privatrecht (1933) p. 20, note 47, and Private International Law (1945), s. 133. The term 'concealed dissensus' describes what Cheshire & Fifoot, Law of Contracts (1945) p. 141 define as mutual mistake.

57. Published, e.g., in A. M. C. 1936, 485.

58. While the paramount object of achieving uniformity has been emphasized as a guide, in several decisions the Act of 1936 has been interpreted in the light of decisions relating to the Harter Act: see a number of cases reported in A. M. C. between 1939 and 1942.

59. Journal of Comparative Legislation and International Law (3rd series) XXVI (1944) 16.

60. When the Commissioners appointed committee on Uniformity of Judicial Decisions: see Reports of the American Bar Association, 38, p. 980.

61. As to the Uniform Negotiable Instruments Act, e.g., see Brannan (-Chafee), The Negotiable Instruments Law Annotated (4th ed.) 1926, pp. 1, 2. See also Harvey Walker Law Making in the United States (1934) pp. 262 sqq. On the Uniform State Law generally see the following literature which was unfortunately not available to the present writer: Beutel, 6 (1931) Tulane L. R. 1; 9 (1934) Tulane L. R. 64; University of Chicago L. R. 1933, 1, 81. As to a similar movement in Canada see Lawson l.c.; Willis, University of Toronto L. J., V (1944) 352.

62. Commercial National Bank of New Orleans v. Louisiana Canal Bank & Trust Co., (1915) 239 U.S. 520 at p. 528.

63. See Oppenheim (-Lauterpacht) (5th ed.) I, pp. 750 sqq., or the excellent discussion by Harvard Research on the Law of Treaties, Supplement to American Journal of International Law, 1935 (Part III) pp. 937 sqq. It is one of the undoubted principles of public international law that in the absence of an express or implied reference (renvoi) to national legislation the terms of a treaty are to be construed independently of such legislation; see the Permanent Court of International Justice, Series B. No. 10, p. 19 (Exchange of Greek and Turkish Populations).

64. McNair, Rec. 43 (1933) 251, 264 sqq.; Law of Treaties (1938) pp. 195 sqq., 222 sqq.

65. Lauterpacht, Les Travaux Préparatoires et l'interpretation des traités, Rec. 48 (1934) 713, 734 sqq.; the same, 48 (1934-1935) Harv. L. B. 549, 563-571.

66. For a good example see Bohemian Union Bank v. Administrator of Austrian Property, [1927] 2 Ch. 175, particularly at pp. 195-196 (decision of Clauson J.); see also Imperial Japanese Government v. P.& O. Co., [1895] A. C. 644 at p. 657; Re Arlan (No. 2), [1896] 1 Q. B. 509 at p. 517, per Lord Russell L.C.J.

67. On the deliberations of the conferences for the unification of the law of bills of exchange and cheques and the proposals for an international tribunal, see Arminjon et Carry, La Lettre de Change (1938) pp. 444-445. See also Annuaire de l'Institut de Droit International, 1936, I 246 sqq.; II 305, where the report of Gidel traces the history of the suggestion for an International Court of Appeal. This suggestion has also been made by Andre Weiss, Clunet, 1925, 5, and by Vallindas in his book on the uniformity of interpretation of conventions relating to private international law which appeared in the Greek language in 1932 and the thesis of which may be gathered from reviews in Zeitschrift für Ausländisches und internationales Privatrecht, 1933, 170; Rev. Gén., 1933, 114; and Revue de droit international privé, 1932, 727.

68. Cf. Article 11 of the Project of a unified law of sale published by the Institute for the Unification of Private Law in Rome: 'Pour les cas non visés expressément par les dispositions de la présente loi, et lorsque cette derniere n'a pas prévu formellement l'application d'une loi nationale, le tribunal saisi statue d'aprés les principes généraux dont s'inspire la presente loi.' See the comments by Babel, Zeitschrift für ausländisches und internationales Privatrecht, 1935, 1 sqq., 54, and see Babel, Das Recht des Warenkaufs, p. 48.

69. Above, note 24.


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