Document préliminaire No 2 d'août 1970
Allemagne
On the questions contained in the questionnaire and sub-mitted by the Permanent Bureau of the Hague Confér-ence on International Private Law with its letter of No-vember 24th, 1969, the Fédéral Ministry of Justice as the National Organ has the honour of stating its view as
follows-A Preliminary question
There are no spécial provisions in German statute law dealing with conflict problems in the realm of products liability. The courts do not appear to have dealt with thèse problems, either.
B General questions Question 1
In this Ministry's view it would not be opportune, at least at the présent time, to prépare a convention on products liability within the framework of international private law. I n the reply dated October 4th, 1968, to the questionnaire submitted by the Permanent Bureau with letter of January 23rd, 1967 L.c. ON. N ° 2 (67) -the Fédéral Ministry of Justice, it is true, generally agreed that some parts of the law of torts might be dealt with in separate conventions. But the Ministry at the same time pointed out that some légal matters rooted in the law of delicts are still in the process of évolution in the national jurisdictions and, therefore, hardly suited for being dealt with by the proposed convention. One of thèse matters is products liability. Détails of the law on this topic are not yet settled. Difficulties are met, in particular, when one tries to define the term manufac-turer. But it cannot even be considered that the founda-tions of liability are entirely clear. Nor can the intent and purpose of a convention be to regulate a compara-tively small section of products liability which is, in turn, only a fraction of a part of the law of torts. Mr Saun-ders' observations show how difficult it would be just to define the term manufacturer.
Question 2
In order to extend the scope of the convention as far as possible efforts should be made to include everyone who might be liable under the heading of products liability.
Question 3
This question is treated together with the answer to question No 5.
Question 4
The convention should cover products liability in respect of ail goods.
Question 5
It appears to be advisable also to include contractual liability in the convention. Otherwise, in cases wheie contractual liability exists in addition to Uability for tort, two différent laws may have to be applied, which should be avoided.
Question 6
Bases and extent of the liability as well as the kind and the amount of the damages should be left to the appli-cable law.
C The applicable law and its scope Question 1
Yes.
Question 2
There should not be only one law applicable in any one claim. Rather, the plaintiff should be given the choice between the law of the place of injury and that of the place of manufacture of the goods. In so far, protection of the consumer ought to rank above the manufacturer's interests.
Question 3 No.
Question 4
No distinction should be. drawn.
Question 5 to 7
In agreement with Mr Saunders' observations the Fédéral Ministry of Justice is of opinion that it may be worthy of considération on principle to give préférence to the law of the place where the product was last offer-ed to the public. It may prove to be impossible, however, to avoid certain exceptions.
Question 8
If the plaintiff is given the choice mentioned in Question C 2 sufficient considération will be given to the 'stand-ards of conduct'. This also holds true if only the law ot the place of the last offer is applicable.
Question 9
It seems expédient to leave the matters mentioned in this question to be determined by the applicable law.
D Jurisdiction and récognition and enforcement of judgments
Référence is made to the reply by the Fédéral Ministry of Justice to Question No 1 {b) of the former question-naire mentioned already in the reply to question B 1.
The convention on the law applicable to traffic accidents contains no rules on jurisdiction and récognition of judg-ments, either.
E Other treaties
The convention's language should correspond as far as possible to that of other international agreements in order to eliminate straight away çJoubts and uncertainties about the meaning of the terms used.
The additional question put in the letter of November 24th, 1969, on the subject of Insurance practice will be answered and an expert will be nominated as soon as the necessary internai consultations will have been complet-ed.
The Fédéral Ministery of Justice avails itself of this opportunity again to assure the Permanent Bureau of the
Hague Conférence on International Private Law of its highest considération.
Annex to the Gerinan reply
The answer to the question from the field of the in-surance practice contained in the Permanent Bure'au's note of 24th November 1969 is as
follows-Under article 1 of the General Third Party Insurance Terms, the insured party is entitled to insurance protec-tion if he is held liable in damages on the strength of any statutory Third Party Insurance provisions of Pri-vate Law contents. This category of provisions includes not only delictual and quasi-delictual claims (Section 823 et seq.; Section 7 of the Road Traffic Code), but also such claims as are arising per se from the existence of a contractual relationship. But any liability going beyond this and based on spécial contractual agreement does, according to the unanimous opinion, not come under the protection by the insurance.
Autriche
A Question préliminaire Non.
6 Oui. Par la loi du lieu où la dernière offre publique était intentionnée.
7 a Oui.
b Non.
c Dans les cas où la victime a sa résidence habituelle dans l'Etat de la fabrication la loi de cet Etat devrait être appliquée.
8 Les «standards of conduct» ne peuvent avoir réfé-rence qu'à la question de la faute. Etant donné qu'on arrivera probablement à une responsabilité absolue, les
«standards of conduct» ne peuvent pas être déterminants pour la loi applicable.
9 a Oui.
e Oui. / / Oui.
Oui.
Non.
g Oui.
Oui.
h Oui.
Oui.
Oui.
D Compétence judiciaire - Reconnaissance et exécu-tion des jugements
1 a Non.
b Non.
2
3 a h 4
-B Questions générales
1 I I ne suffit pas de se contenter d'une responsabilité contractuelle ou délictuelle ordinaire. C'est pourquoi il faut séparer la matière de la responsabilité des fabricants du domaine général de la responsabilité en vue des conflits de lois.
2 a Non.
b Oui.
c I I faut inclure seulement les grands magasins de distribution qui font construire leurs produits par des petits fabricants, mais pas les vendeurs.
d
-e (i) Oui.
(ii) Oui.
3 Oui. I l faut inclure toutes les victimes sauf celles qui entrent en possession du produit par un acte illicite.
4 La convention devrait s'appliquer à tous les produits.
5 a Comme il n'y a pas de contrat entre le fabricant et la victime, la responsabilité contractuelle est exclue.
5 6 Au stade actuel il n'y aurait pas de responsabilité sauf dans le cas d'un acte illicite.
6 a Non. b Oui.
E Autres conventions
Dans la mesure du possible la Convention sur la loi ap-plicable en matière d'accidents de la circulation routière.
Belgique A Non.
B 1 Oui.
B 2 I I faut donner à la définition du terme fabricant une portée large.
a Non.
b Douteux.
c Oui.
d Non.
e Oui.
B 3 Le domaine de la convention ne doit pas être limité à l'acheteur.
B 4 Oui, sous réserve des produits qui feraient déjà l'objet d'une réglementation spéciale (dommage nu-cléaire par exemple).
B 5 La responsabilité contractuelle ne devrait pas être exclue.
C La loi applicable et son domaine 1 Oui.
2 La convention devrait prévoir une seule loi applica-ble.
3 Oui.
4 Non.
5 a Non.
b Oui.
c - i Non.
B 6 Oui, tant pour b que pour a.
C 1-8 I I s'agit ici de la question cruciale. Dans l'at-tente des lumières à provenir de la discussion au sein de la Commission spéciale, le Gouvernement belge exprime une préférence pour le choix d'une seule loi, à savoir la loi du lieu de la dernière offre publique de vente. I l est toutefois possible que dans certains cas la loi du lieu de fabrication doive être retenue comme solution subsi-diaire, par exemple dans les cas où le heu de la dernière offre publique de vente n'est pas connu ou dans les cas où le produit a été exporté contrairement aux intentions du fabricant.
Réponses •Réponses 65
Les autres lois citées sub C 5, c à /, ne devraient pas être retenues.
C 9 La réponse est affirmative pour les points a, c, d, e, f et / mais elle est négative pour le point b. En dépit du précédent que constitue la Convention relative aux accidents de la circulation, la réponse paraît douteuse pour les points g et h.
D La réponse est négative.
Canada*
S U M M A R Y O F R E P L I E S R E C E I V E D F R O M T H E C A N A -D I A N P R O V I N C E S
Preliminary note: No reply was received from Saskatch-ewan; no doubt it can be assumed that it would have been similar to those of the other Common Law prov-inces. Nova Scotia produced a very brief reply which is appended and attention is drawn to it below where relevant.
A Preliminary question
None of the provinces have any législation in this area, nor, in most cases, do they suggest any cases by which they might be guided. The exceptions are: Prince Ed-ward Island, where they would follow the 'rules govern-ing tortious liability in the conflict of laws'; New Brunswick, where in tort they would apply the princi-ples laid down in Donoghue v. Stevenson as quahfied by any 'justifiability' under the lex loci delicti in accordance with the rule in Phillips v. Eyre, and in contract they would consider express/implied warranties according to the proper law of the contract; and Nova Scotia, which has one récent decided case: Ahbot - Smith v.
Governors of the University of Toronto, (1964) 49 M.P.R. 329 (and see appended letter). In the case cited, it was held by the Nova Scotia Suprême Court that the place where the damage is sustained is not the place where the tort is committed for the purposes of Order X I (service out of jurisdiction). It was also held, in the court of first instance, that no action lay against the City of Halifax which was responsible for administering the Toronto vaccine which infected the plaintiff with poliomyelitis. There was no appeal against this latter décision, but it would appear to have been made for technical reasons relating to notice and delay in bringing the action. Ontario case law indicates that the gênerai principles governing choice of law and jurisdiction in matters of foreign torts would be followed.
B General questions
1 AU the provinces which answered the questionnaire answered 'Yes' with the exception of Québec and Mani-toba. Ontario, New Brunswick and Prince Edward Island were very much in favour of making a spécial category if at ail possible; the appended letter from Nova Scotia does not appear to provide an answer.
Manitoba's reply is a simple 'No'; the Québec reply
• Thèse replies reflect the opinions of the Provinces of Canada, and do not necessarily represent the views of the Fédéral Government.
explains that articles 6 and 8 of the Civil Code already cover the problem, as do articles 16 and 18 in their draft Private International Law Code.
2 a The majority says 'No'. The exceptions are Prince Edward Island (with a proviso concerning sellers - see c below) and Manitoba on the grounds that the manu-facturers can join purveyors of component parts where necessary. The Nova Scotia letter suggests that they, too, might favour a strict définition of 'manufacturer'.
In Ontario the term has already been extended to include assemblers, installers, repairers, retailers and wholesalers.
2 b Those provinces which answered 'No' to a above indicate that they would probably extend the term to include growers of agricultural produce. Alberto qualifies its approval by saying that they should only be included if the importing country m.akes the importer responsible.
2 c The majority again is in favour of this extension of the meaning of 'manufacturer'. It must probably be deduced that Nova Scotia and Manitoba are not in fa-vour, and Prince Edward Island would only accept impo-sition of liability on a seller if the opinion of the Nether-lands Draft Civil Code authors quoted in the Hague . Report were taken into account.
2 d Those provinces which favour a broad définition of 'manufacturer' would not delimit the word 'seller';
those which would interpret the word 'manufacturer' strictly obviously did not answer this question except for Prince Edward Island with the réservations referred to above under c.
2 e (il) There does not seem to be any consensus among the provinces here, although the balance is in favour. Disregarding Nova Scotia, where there would presumably be a négative response, only British Colum-bia, Ontario and Québec are entirely in favour. New-foundland is not; Manitoba says it is up to the manu-facturer to join a négligent supplier but does not discuss repairers; Alberta says the furnisher of parts should not be included but that the repairer should; Prince Edward Island says both should be included subject to their answer under c above, and New Brunswick says both should be included providing that, in the case of a supplier, it is possible to trace a defect.
3 Apart from British Columbia, where the question was 'not understood', and Nova Scotia, where it was not answered, there is a gênerai agreement that the plaintiff should be defined, with the foUowing provisos: New Brunswick - the définition should cover as broad a class as possible and minimally ail contemplated users and ail persons who might reasonably be expected to come into contact with the product; Québec - any person damaged by a defective product should be protected; Manitoba -non-purchasers should be included; Alberta - anyone who could reasonably be foreseen to use or be affected by the use of the product; Ontario - the term 'consumer' applies to anyone who can be considered a 'neighbour' in the broadest sensé (see Shields v. E. V. Larson Co.
Ltd., 1962, O.R. 355).
4 The answer is unanimously 'AU'. New Brunswick qualifies it with: ' A i l consumer goods at least' and Alberta spécifies: ' A i l consumer products and possibly ail imported products used in processing and manufactu-ring'.
5 a The majority opinion appears to be that ail claims should be covered by the proposed Convention. In terms of the Alberta reply, because: 'There should be no way of contracting out of the Convention' and in terms of the New Brunswick reply, because this would avoid problems
as to choice of law and encourage uniformity and also because it would mean that the Convention would be applicable both in those countries where there might be an option between contract and tort and in those coun-tries where 'contract' includes 'tort'.
The provinces which said 'No' to the question (Manitoba and British Columbia) give no reasons for their response.
5 b According to Manitoba, British Columbia (? and Alberta) the exclusion of contractual liability would have no effect on the internai légal System - the plaintiff would still be free to choose his remedy in either field.
According to Newfoundland, Québec and Prince Edward Island the Convention would be less effective and/or restrict the number of plaintiffs who might have recourse to it. Ontario suggests that the evils of 'forum shopping' would persist if contractual liability were excluded from the Convention.
Ontario recognizes concurrent liability in 'products liabil-ity' - cf. two récent cases where a claim was made in contract and in tort and where there was judgment for the plaintiff in tort in one instance (Phillips v. Ford Motor Co. of Canada - not yet reported) and in contract in the other {Helfand v. Royal Canadian Art Pottery, 1970, O. R. 277).
New Brunswick points out that two anomalies might arise in their province if contractual liability were ex-cluded: a plaintiff could pursue contractual claims under the 'proper law' of New Brunswick and thereby avoid the Convention; or an injured buyer in New Brunswick, where the liability of the seller is normally contractual, might be deprived of his rights under the Convention.
6 a b The unanimous answer is 'Yes', with some qualifications. New Brunswick suggests that the 'avail-ability' of damage should be left to the applicable law;
Alberta suggests that the measure of damage should be that of the plaintiffs place of résidence; Prince Edward Island says that, in answer to a, damages should be avail-able if the victim is the same and a 'remoteness' test is applied; and in answer to b there should be a remedy, with limitations, where the damage results from négligent misstatements.
Ontario apphes the principle of reasonable foreseeability as laid down in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound),.
1961, A.C. 388, regardless of whether or not there has been physical damage or personal injury.
C The applicable law and its scope
1 Apart from Manitoba (which says the plaintiff must be able to choose) and British Columbia (no explana-tion), the answer to this question is 'Yes'.
2 Opinion is divided here: Ontario, New Brunswick, Prince Edward Island, British Columbia and Newfound-land think only one law should be applicable, although New Brunswick says that if that law offers a choice be-tween actions in contract or tort, that choice should be preserved. Manitoba, Alberta and Québec think the plain-tiff should have a choice. Alberta suggests a choice be-tween the law of the plaintiffs domicile, the law of the place of manufacture and possibly also the law of the place of purchase and the law of the place of damage.
3 Again, opinion is divided. Ontario, Newfoundland and Manitoba give a flat 'No'. Alberta gives a qualified 'No', suggesting that the manufacturer should be liable only where he could foresee the jurisdiction where his products might be bought and sold and therefore be in a position to insure. Québec gives a flat 'Yes'; British Columbia says 'To a limited extent only', without de-fining the limits or the reasons therefore; Prince Edward
Island says foreseeability should be taken into account if manufacturers are not to become gênerai insurers; New Brunswick takes the same view but adds that if a manu-facturer knew that his initial distribution might subject him to a higher degree of liability he might then reasona-hly be expected to distribute at his péril.
4 Apart from New Brunswick, the answers are un-qualified: Prince Edward Island and Manitoba, 'Yes';
Ontario, Québec, Alberta, British Columbia and New-foundland, 'No'. New Brunswick points out that the distinction is insignificant unless undue weight is given to the place of manufacture.
5 a to j - Prince Edward Island, subject to their answer under C, 7, British Columbia and Newfoundland favour b.
New Brunswick favours g provided the relevant clause is defined so as to avoid 'contact counting' {cf. their detailed answer to C, 1 above) ;
Québec favours /, provided the injurious act is not légal at the place of manufacture, as does Manitoba, without qualifications; Alberta favours /;
Nova Scotia would appear to favour g; Ontario favours b and, possibly g.
6 There are two unqualified 'Yes' answers (Manitoba, Newfoundland) and four unqualified 'No' answers (Prince Edward Island, Québec, Ontario, British Colum-bia). Presumably Nova Scotia would say 'Yes' and New
6 There are two unqualified 'Yes' answers (Manitoba, Newfoundland) and four unqualified 'No' answers (Prince Edward Island, Québec, Ontario, British Colum-bia). Presumably Nova Scotia would say 'Yes' and New