Decision of The Council
The Nova Scotia decision was upheld by the Privy Council, albeit for different reasons. Lord Wright, writing for the Council, noted that the following provisions of the bills in question did not apply:
- the Harter Act requirement only applied to shipments from the United States
- the Water Carriage of Goods Act, 1910 (Canada) only applied to shipments from Canadian ports, whether to other Canadian ports or ports outside Canada
Either of the above requirements would have had effect only under the principles laid out in Dobell v. Steamship Rossmore Co., which were not applicable here.
He also observed that:
It is now well settled that by English law (and the law of Nova Scotia is the same) the proper law of the contract is the law which the parties intended to apply. That intention is objectively ascertained, and, if not expressed, will be presumed from the terms of the contract and the relevant surrounding circumstances.
Therefore, the Newfoundland Act did not apply as the proper law of the contract was England, and so the contract was upheld. He stated the test for determining the choice of law in such circumstances:
… in questions relating to the conflict of laws rules cannot generally be stated in absolute terms but rather as prima facie presumptions. But where the English rule that intention is the test applies, and where there is an express statement by the parties of their intention to select the law of the contract, it is difficult to see what qualifications are possible, provided the intention expressed is bona fide and legal, and provided there is no reason for avoiding the choice on the ground of public policy. Connection with English law is not as a matter of principle essential.
Read more about this topic: Vita Food Products Inc. V. Unus Shipping Co. Ltd.
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