37. Walton vs. Arabian American Oil Co [233 F.

2d 543]

Leo WALTON, Plaintiff-Appellant, v. ARABIAN AMERICAN OIL would be to interfere with the authority of the foreign sovereign.2
COMPANY, Defendant-Appellee.
United States Court of Appeals Second Circuit. It has been suggested that, where suit is brought in an American court
Argued March 15, 1956. by an American plaintiff against an American defendant, complaining
Decided May 15, 1956. of alleged tortious conduct by the defendant in a foreign country, and
that conduct is tortious according to the rules of the forum, the court,
Attorney(s) appearing for the Case in some circumstances, should apply the forum's tort rules. See
O'Neill, Higgins & Latto, New York City, John V. Higgins, New York Morris, The Proper Law of a Tort, 64 Harv.L.Rev. (1951) 881,
City, of counsel, for plaintiff-appellant. criticizing, inter alia, Slater v. Mexican National Railroad, 194 U.S.
Reilly & Reilly, New York City, for defendant-appellee. 120, 24 S.Ct. 581, 48 L.Ed. 900. 2a There, and in 12 Modern L.Rev.
Before FRANK, LUMBARD and WATERMAN, Circuit Judges. (1949) 248, Morris decries, as "mechanical jurisprudence," the
invariable reference to the "law" of the place where the alleged tort
FRANK, Circuit Judge. happened.2b There may be much to Morris' suggestion; and a court —
particularly with reference to torts, where conduct in reliance on
Plaintiff is a citizen and resident of Arkansas, who, while temporarily in precedents is ordinarily absent3 — should not perpetuate a doctrine
Saudi Arabia, was seriously injured when an automobile he was which, upon re-examination, shows up as unwise and
driving collided with a truck owned by defendant, driven by one of unjust.4 Although in a diversity case a federal court must apply the
defendant's employees. Defendant is a corporation incorporated in "substantive" conflicts rules of the state in which the court sits, that
Delaware, licensed to do business in New York, and engaged in duty perhaps does not require acceptance of state court decisions
extensive business activities in Saudi Arabia. Plaintiff's complaint did which are clearly obsolescent; see the concurring opinion of Mr.
not allege pertinent Saudi Arabian "law," nor at the trial did he prove Justice Frankfurter in Bernhardt v. Polygraphic Co. Inc., 350 U.S. 198,
or offer to prove it. Defendant did not, in its answer, allege such "law," 76 S.Ct. 273.4a But we see no signs that the New York decisions
and defendant did not prove or offer to prove it. There was evidence pertinent here are obsolescent.5
from which it might have been inferred, reasonably, that, under well-
established New York decisions, defendant was negligent and 2. The general federal rule is that the "law" of a foreign country is a
therefore liable to plaintiff. The trial judge, saying he would not take fact which must be proved.6 However,
judicial notice of Saudi-Arabian "law," directed a verdict in favor of the
defendant and gave judgment against the plaintiff. [233 F.2d 544]

1. As jurisdiction here rests on diversity of citizenship, we must apply under Fed.Rules Civ.Proc. rule 43(a), 28 U.S.C.A., a federal court
the New York rules of conflict of laws.1 It is well settled by the New must receive evidence if it is admissible according to the rules of
York decisions that the "substantive law" applicable to an alleged tort evidence of the state in which the court sits. At first glance, then, it
is the "law" of the place where the alleged tort occurred. See, e. g., may seem that the judge erred in refusing to take judicial notice of
Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 248, 194 Saudi Arabian "law" in the light of New York Civil Practice Act, § 344-
N.E. 692. This is the federal doctrine; see, e. g., Slater v. Mexican a.7 In Siegelman v. Cunard White Star, 2 Cir., 221 F.2d 189, 196-197,
National Railroad Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. applying that statute, we took judicial notice of English "law" which
Cuba R. Co. v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L. Ed. 274. had been neither pleaded nor proved. Our decision, in that respect,
This doctrine is often said to be based on the motion that to hold has been criticized;8 but it may be justified on the ground that an
otherwise American court can easily comprehend, and therefore, under the
statute, take judicial notice of, English decisions, like those of any
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state in the United States.9 However, where, as here, comprehension 29 S.Ct. 511, 53 L.Ed. 826, and in Cuba R. Co. v. Crosby, 222 U.S.
of foreign "law" is, to say the least, not easy, then, according to the 473, 478, 32 S.Ct. 132 — the lex loci does not apply "where a tort is
somewhat narrow interpretation of the New York statute by the New committed in an uncivilized country" or in one "having no law that
York courts,9a a court "abuses" its discretion under that statute civilized countries would recognize as adequate."14 If such were the
perhaps if it takes judicial notice of foreign "law" when it is not case here, we think the New York courts would apply (and therefore
pleaded,10 and surely does so unless the party, who would otherwise we should) the substantive "law" of the country which is most closely
have had the burden of proving that "law," has in some way connected with the parties and their conduct — in this case, American
adequately assisted the court in judicially learning it.11 "law."14a But plaintiff has offered no data showing that Saudi Arabia is
thus "uncivilized." We are loath to and will not believe it, absent such a
3. Plaintiff, however, argues thus: The instant case involves such showing.
rudimentary tort principles, that the
5. The complaint in this action was filed on May 10, 1949. Pre-trial
[233 F.2d 545] hearings were held before Judge Conger on December 2, 1952;
January 7, 1953; March 31, 1953; and April 10, 1953. At these
judge, absent a contrary showing, should have presumed that those hearings the question of proving Saudi-Arabian law was discussed.
principles are recognized in Saudi Arabia; therefore the burden of When the case came on for trial on November 7, 1953 Judge Bicks
showing the contrary was on the defendant, which did not discharge indicated that in his
that burden.12 But we do not agree that the applicable tort principles, [233 F.2d 546]
necessary to establish plaintiff's claim, are "rudimentary": In countries view the burden was on the plaintiff to prove the foreign "law". When
where the common law does not prevail, our doctrines relative to the plaintiff's counsel said that he was not prepared to prove the "law"
negligence, and to a master's liability for his servant's acts, may well of Saudi-Arabia, Judge Bicks proposed that the case be adjourned
not exist or be vastly different. Consequently, here plaintiff had the long enough to allow the plaintiff to prepare such proof. It was agreed
burden of showing, to the trial court's satisfaction, Saudi Arabian that the case be put over for two days to enable the plaintiff to decide
"law."13 whether to request an adjournment for that purpose.

This conclusion seems unjust for this reason: Both the parties are When the hearing resumed on November 9, plaintiff's counsel
Americans. The plaintiff was but a transient in Saudi Arabia when the unequivocally took the position that he did not wish to prove the
accident occurred and has not been there since that time. The foreign "law" and wanted no adjournment. He chose to rely on the
defendant company engages in extensive business operations there, applicability of New York "law". To that end he proposed that he
and is therefore in a far better position to obtain information proceed to present his case in order to make a record for appeal. The
concerning the "law" of that country.13a But, under the New York plaintiff's evidence as to liability was presented and on a proper
decisions which we must follow, plaintiff had the burden. As he did not motion the judge dismissed the complaint. He specifically ruled that
discharge it, a majority of the court holds that the judge correctly gave he would not take judicial notice of the "law" of Saudi-Arabia and that
judgment for the defendant. the plaintiff's failure to prove that "law" required dismissal.

4. In argument, plaintiff's counsel asserted that Saudi Arabia has "no Since the plaintiff deliberately refrained from establishing an essential
law or legal system," and no courts open to plaintiff, but only a element of his case, the complaint was properly dismissed. The
dictatorial monarch who decides according to his whim whether a majority of the court thinks that, for the following reasons, it is
claim like plaintiff's shall be redressed, i. e., that Saudi Arabia is, in inappropriate to remand the case so that the plaintiff may have
effect, "uncivilized." According to Holmes, J. — in Slater v. Mexican another chance: He had abundant opportunity to supply the missing
National R. Co., 194 U.S. 120, 129, 24 S.Ct. 581, 584, 48 L.Ed. 900, element and chose not to avail himself of it. It does not appear
in American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-356, whether Judge Bicks or counsel for the parties considered the
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application of Section 344-a of the New York Civil Practice Act. Since U. S. v. Wiggins, 14 Pet. 334, 39 U.S. 334, 10 L.Ed. 481; Church v. Hubbart, 2 Cranch 187, 6
U.S. 187, 236-237, 2 L.Ed. 249; Liechti v. Roche, 5 Cir., 198 F.2d 174, 176; U. S. ex rel. Zdunic
Judge Bicks specifically determined that he would not take judicial v. Uhl, 2 Cir., 137 F.2d 858, 861; Dickerson v. Matheson, 2 Cir., 50 F. 73, 76.
notice of the Arabian "law", he must have considered that in some 7. It reads, in part:
"A. Except as otherwise expressly required by law, any trial or appellate court, in its discretion,
circumstances he might take judicial notice of foreign "law". But in any may take judicial notice of the following matters of law:
event, as we have pointed out, it would have been an abuse of "1. A law, statute, proclamation, edict, decree, ordinance, or the unwritten or common law of a
discretion under the New York cases to take notice of the foreign "law" sister state, a territory or other jurisdiction of the United States, or of a foreign country or political
subdivision thereof. * * *
here. The judgment of dismissal must therefore be affirmed. "C. Where a matter of law specified in this section is judicially noticed, the court may consider
any testimony, document, information or argument on the subject, whether the same is offered
The writer of the opinion thinks we should remand for this reason: by counsel, a third party or discovered through its own research.
"D. The failure of either party to plead any matter of law specified in this section shall not be held
Apparently neither the trial judge nor the parties were aware of New to preclude either the trial or appellate court from taking judicial notice thereof."
York Civil Practice Act, § 344-a; consequently, in the interests of 8. Busch, When Law is Fact, 24 Fordham L.Rev. (1956) 646; cf. Sommerich and Busch, 38
Cornell L.Rev. (1953) 125; U. S. ex rel. Jelic v. District Director of Immigration, 2 Cir., 106 F.2d
justice,15 we should remand with directions to permit the parties, if 14, 20; U. S. ex rel. Zdunic v. Uhl, 2 Cir., 137 F.2d 858.
they so desire, to present material which may assist the trial judge to 9. For a different possible justification, see Busch, loc. cit. at 649.
ascertain the applicable "law" of Saudi-Arabia.16 An American court may go astray even in taking judicial notice of English "law." The similarity in
language may be deceptive by concealing significant differences. Indeed, just because the
English language appears the same as the American language (although it is not), an American
Affirmed. may understand the former less adequately than he understands German or French, which is
more obviously "foreign" and different. See Anon Y. Mous, The Speech of Judges, 29 Va.L.Rev.
FootNotes (1943), 625, 628.
Moreover, the taken-for-granted, unexpressed, background assumptions of English judges and
1. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. lawyers differ from the unspoken assumptions of American judges and lawyers, and thus may
2. See, e. g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 well induce serious misunderstandings. Holmes, J., noted the baffling character of such tacit
L.Ed. 826. assumptions in a foreign system like that of Puerto Rico; see Diaz v. Gonsolez,  261 U.S. 102,
A variant but related notion is that the foreign sovereign alone has the power to create a legal 105-106, 43 S.Ct. 286, 67 L.Ed. 550. Tacit English assumptions may be even more baffling to an
obligation resulting from an act done within the territory over which it has "jurisdiction", and that, American.
if that sovereign does create such an obligation, that obligation accompanies the person of the 9a. For criticism of this narrow interpretation, see Nussbaum, Proving the Law of Foreign
defendant everywhere. See, e. g., Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547, Countries, 3 Am.J. of Comp.Law (1954) 60-62; cf. Nussbaum, The Problem of Proving Foreign
34 S.Ct. 955, 58 L.Ed. 1457; Loucks v. Standard Oil Co. of N. Y., 224 N.Y. 99, 120 N.E. 198. For Law, 50 Yale L.J. (1941) 1018, 1023.
criticisms of this view, see, e. g., Cook, The Logical and Legal Bases of the Conflict of Law 10. Greiner v. Freund, 286 App.Div. 996, 144 N.Y.S.2d 766; Arams v. Arams, 182 Misc. 328, 45
(1942) 7, 311 et seq.; Dodd, 39 Harv.L.Rev. (1926) 533, 536-537. N.Y.S.2d 251; see also the articles cited in note 8, supra.
For a different view, see, e. g., Judge Learned Hand in Guiness v. Miller, D.C., 291 F. 768, 770; 11. Sonnesen v. Panama Transport Co., 298 N.Y. 262, 82 N.E.2d 569; Berg v. Oriental Consol.
Direction der Disconto-Gesellschaft v. U. S. Steel Corp., D.C., 300 F. 741, 744. Mining Co., Sup., 70 N.Y.S.2d 19.
2a. Cf. Wightman, J., and Willes, J., in Scott v. Lord Seymour, 1 H. & C. 219, 233-234, 236, 158 12. Cuba R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132, 56 L.Ed. 274; Industrial Export &
Eng.Rep. 865, 871-873, cited in the dissenting opinion in Slater v. Mexican Nat. R. R. Co., 194 Import Corp. v. Hongkong & Shanghai Banking Corp., 302 N.Y. 342, 349-350, 98 N.E.2d 466;
U.S. at page 132, 24 S.Ct. 581. Ehag Eisenbahnwerte H.A. v. Banca Nat., 306 N.Y. 242, 249, 117 N.E.2d 346; Arams v. Arams,
2b. Cf. Stumberg, Conflict of Laws (1951), 201 et seq. 182 Misc. 328, 45 N.Y.S.2d 251.
3. Note the reference in Cuba R. Co. v. Crosby, 222 U.S. 473, 480, 32 S.Ct. 132, 133, to parties 13. See Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251, and the other cases cited in the
who "enter into civil relations" and to a "rule * * * under which the parties dealt." Those phrases preceding footnote; see also Whitford v. Panama R. Co., 23 N.Y. 465; Crashley v. Press Pub.
are awkward in their application to what we call torts. Co., 179 N.Y. 27, 32-33, 71 N.E. 258; E. Gerli & Co. v. Cunard SS Co., 2 Cir., 48 F.2d 115, 117;
4. See, e. g., Seavey, The Waterworks Cases and Stare Decisis, 66 Harv.L.Rev. (1952) 84; Cf. Ozanic v. U. S., 2 Cir., 165 F.2d 738, 744.
Denning, The Road to Justice (1955) 6, 92, 98. 13a. See Nussbaum, 3 Am.J. of Comp.Law (1954) 60, 62; Nussbaum, 50 Yale L.J. (1941) 1018,
4a. Cf. Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 359; Pierce v. Ford Motor Co., 4 1043.
Cir., 190 F.2d 910; Trowbridge v. Abrasive Co., 3 Cir., 190 F.2d 825. 14. Cf. Dicey, Conflict of Laws (2d ed.) 726, cited in American Banana Co. v. United Fruit
5. Were this not a diversity case, it might perhaps be appropriate to suggest that the Supreme Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826. The latest or 6th edition of Dicey (1949) 805
Court should reconsider the accepted doctrine (as to the complete dominance of the "law" of the repeats the statement.
place where the alleged tort occurred) which seems to have been unduly influenced by notions 14a. This is in line with the idea that the "proper law" is that of the place of paramount contacts,
of sovereignty a la Hobbes. See Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, as to which see Cheatham, Goodrich, Griswold and Reese, Cases and Materials on Conflict of
51 L.Ed. 834 (referring to Hobbes and Bodin), cited in American Banana Co. v. United Fruit Law (3d ed., 1951) 420 et seq.; cf. 204, 239-240; Cavers, A Critique of The Choice of Law
Co., 213 U.S. 347, 358, 29 S.Ct. 511, 53 L.Ed. 826; cf. Jaffe, Book Rev., 66 Harv.L.Rev. (1953) Problem, 47 Harv.L.Rev. (1933) 173, 191-193.
939, 941 as to the reification of the "notion of power." As the tort rules, pertinent here, of New York, Delaware and Arkansas are doubtless
6. See, e. g., Black Diamond S.S. Corp. v. Robert Stewart & Sons, 336 U.S. 386, 396-397, 69 substantially similar, there would be no need to choose one or the other.
S.Ct. 622, 93 L.Ed. 754; Cuba R.R. Co. v. Crosby, 222 U.S. 473, 479, 32 S.Ct. 132, 56 L.Ed. 15. Estho v. Lear, 7 Pet. 130, 32 U.S. 130, 8 L.Ed. 632; Ford Motor Co. v. N. L. R. B., 305 U.S.
274; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788; 364, 373, 59 S.Ct. 301, 83 L.Ed. 221; U. S. v. Rio Grande Dam & Irrigation Co., 184 U.S. 416,
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423-424, 22 S.Ct. 428, 46 L.Ed. 619; Porter v. Leventhal, 2 Cir., 160 F.2d 52, 59 and cases
there cited; Benz v. Celeste Fur Dyeing & Dressing Corp., 2 Cir., 136 F.2d 845; Nachman
Spring-Filled Corp. v. Kay Mfg. Co., 2 Cir., 139 F.2d 781, 787.
See also Usatorre v. The Victoria, 2 Cir., 172 F.2d 434; Sonnesen v. Panama Transport Co.,
298 N.Y. 262, 267, 82 N.E.2d 569; Sommerich, 4 Am.J. of Comp.Law (1955) 453.
16. Or that it has no "civilized" legal system; see point 4 of the text, supra.
Nussbaum, 3 Am.J. of Comp.Law (1954) 60, 63-64 — criticising Usatorre v. The Victoria, 2
Cir., 172 F.2d 434 points to an important fact: the prohibitive expense to a party of modest
financial means in obtaining an expert to explain foreign "law." Subsequently (pp. 66-67),
Nussbaum suggests that the trial judge call his own expert; the judge, says Nussbaum, would
require the parties to advance the expert's fee, or, "if this is not feasible, the court (hence
eventually the losing party), may be charged with the fee as part of the court's business." But, as
matters now stand, this solution is not feasible: In a federal criminal case, a trial judge may call
upon his own expert whom the government will pay; see Criminal Rule 28, 18 U.S.C.A.
However, in a civil case (at any rate, one to which the government is not a party) the government
has no authority to pay an expert; and the use of the device of taxing the expert's fee as part of
the costs to the losing party may be beyond the judge's power (absent a statute); in any event,
the expert will go unpaid if the losing party has not the funds to pay such costs.

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