San Beda College of Law

Mendiola, Manila
A Report on the Applicability of Conflicts of Law
Principles




Submitted to:
Atty. Marciano Delson


Submitted by:
Altonaga, Vedalyn
Demaala, Clarito IV
Naga, John Henry
Salang, Patricia Concepcion

1
Sio, Nathaniel Eric
Zatarain, Marnie
4-E




TABLE OF CONTENTS:

Chapter I. Torts in General 2

Chapter II. Modern Theories in Determining Liability for Torts . 7

Chapter III. Rules on Maritime Torts ..15

Chapter IV. Torts and Crimes ..19

Chapter V. Theories on Extraterritorial Competence .. 21

Chapter VI. Theories Applicable in the Philippine Jurisdiction . 25

Chapter VII. United Nations Convention on the Law of the Sea 35






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I. TORTS in General
By: Patricia Concepcion Salang

1. What is the meaning of tort?

(a) Tort is a legal wrong committed upon person or property independent of contract.
(b) In Spanish law, the concept of quasi-delict or culpa aquiliana includes all acts or
omissions committed through fault or negligence causing damage to another,
independent of contract.
It covers all cases where a person causes damage to another through negligence, or
with no intention to do so; i.e unintentional wrongs.
(c) In American law, however, tort has a broader meaning, for it covers legal wrongs
not only committed through negligence but also those committed with malice or
willful intent, but of course, independent of contract. Otherwise, it will be breach of
contract and covered by another field of law, contact law.

2. What is concept of tort in the Philippines?


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Our concept of tort under the New Civil Code is a blending of the Spanish
culpa aquiliana and the American tort, which may be committed not only through fault
or negligence, but also with malice and willful intent.

Thus, Art. 20 of the New Civil Code provides: Every person who, contrary to
law, willfully or negligently causes damage to another, shall indemnify the
latter for the same. This is a new provision under Chapter 2 of the Code on
Human Relations, which is an entirely new Chapter in the Code.

Art. 2176 of the same Code, on the other hand, retains the Spanish concept of
culpa aquiliana or quasi-delict. It provides:

Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this chapter.

3. In Conflicts of Law, what law governs liability for torts, and what are the reasons
for the rule?

a. Liability for torts in general is governed by the lex loci delicti commissii, i.e.,
the law of the place where the delict or wrong was committed.

b. Reasons for the rule:
1.) The state where the social disturbance occurred has the primary duty
to redress the wrong and determine the effects of the injury; and,
2.) To compensate the victim for the damage or injury suffered.

4. Policies of Conflicts Tort Law
The two important policies underlying substantive tort law, to wit:

4
a.) To deter socially undesirable or wrongful conduct; and,
b.) To rectify the consequences of the tortious act by distributing the losses that
result from accident and products liability.
The ultimate principle of tort law, considering the aforesaid policies, is that the
state will not easily displace its own law with the law of another state. (Coquia,
Jorge and Pangalanan, Elizabeth, Conflicts of Laws Cases, Materials and
Comments, Central Book Supply, Inc., Quezon City, 2000).
5. Illustrative Situations When Conflict Torts Cases Arise

a.) Conflict torts cases arise when the tortious conduct and place of resulting
injury are different and one state imposes higher standards than the other state.
b.) There is a difference in product liability laws and varying judicial
interpretations of the extent of liability.

6. LEX LOCI DELICTI COMMISSI, Explained.

a.) The term lex loci delicti commissi is the Latin term for "law of the place
where the delict was committed". The lex loci delicti commissi determines the
tort liability in matters affecting conduct and safety.

7. Illustrative Case: Alabama Great Southern Railroad vs. Carroll, 97 Ala. 126, 11 So.
803 (1892)
Plaintiff Carroll, a resident of Alabama, was a brakeman employed by defendants,
an Alabama Corporation which operated a railroad from Tennessee, though
Alabama to Mississippi. The contract of employment was entered into in
Alabama.
Carroll was injured in Mississippi as a result of an alleged negligent failure to spot
a defective link between two freight cars which the defendants employees were
under duty to inspect.

5
Under the Mississippi law, Carroll could not recover against his employer because
the negligence was caused by the act of a fellow servant. Under the Alabama
law, absolute liability was imposed on the company for injuries suffered by
employees in the course of their employment.
In ruling the case, the Court held that the negligent infliction of an injury in the
case at bar creates a right of action which may be enforced in any other state or
country the comity of which admits of it; but for an injury inflicted elsewhere than
in Alabama, the statute gives no tight of recovery, and the aggrieved party must
look to the local law to ascertain what his rights are. The Court further held that
the plaintiff had no cause of action, hence he has no rights which the courts can
enforce, unless it be upon a consideration to be presently adverted to.
8. Illustrative Case: Loucks vs. Standard Oil Co., 224 N.Y. 99; N.E. 198 (1913)
The plaintiffs are the administrators of the estate of Everette A. Loucks. Loucks,
while travelling on a highway in the state of Massachusetts, was run down and
killed through the negligence of the defendants servants then engaged in its
business. He left a wife and two children who reside in New York.
Under the Massachusetts law, if a person or corporation by his or its negligence,
or by the negligence of his or its agents or servants while engaged in his or its
business, causes the death of a person who is in the exercise of due care. And not
in his or its employment or service, he or it shall be liable in damages. xxx
The question is whether a right if action under that statute may be enforced in the
New York Courts.
The Court held that there is nothing in the Massachusetts statute that outrages the
public policy of New York, that the same is a statute which gives a civil liability
where death is caused in their own state. The law of Massachusetts gives the
deceaseds heirs a recompense fro his death. The Court said further that public
policy does not prohibit the assumption of jurisdiction by the courts and that this
being so, mere differences in remedy do not count.

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9. In applying the rule of lex loci delicti commissii, how is the locus delicti determined,
especially if the wrong conduct is committed in one state and the injuries are
sustained in another, or the conduct is a continuing act that spans several states (like
the U.S)?

There are at least three theories (3) in determining where the locus delicti is:
a.) Civil Law Theory (Place of CONDUCT)- the locus delicti is where the act
began. This is so since the rules on tort are intended to regulate human
conduct, such that a person who willfully and negligently acts contrary to the
social norms must be held liable for the injury caused.
This is premised on the principle that the legality or illegality of ones act
should be determined by the law of the state where he is at the time he does
the act.
Example: While hunting in State X near the boundary of State Y, Jim
accidentally shot Ross, who was standing on a street in State Y. The locus delicti
is State X, because that was where the negligent act occurred.
b.) Common law theory (Place of INJURY): The locus delicti is the place
where the wrongful act became affective. The reason is that without an injury,
there is nothing to protect and there is no necessity for judicial relief.
Looks to the place where the last event necessary to make an actor liable
for an alleged tort.
It adheres to the vested rights theory in that if the harm does not take place
then the tort is not completed.
Example: In the above example under paragraph(a), the locus delicti is State
Y.
c.) Theory of Dr. Rabel (Most Substantial Connection Theory)- The locus
delicti is the place which has the most substantial connection with the
wrongful act.

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The The locus delicti is determined by place where the important and
substantial acts leading to the tortuous act were committed.
Example: The situs of the radio station where a libelous broadcast is made is the
locus delicti, even if the broadcast is heard in many places.





II. Modern Theories in Determining Liability for Torts
By: john Henry Naga

1. State of the Most Significant Relationship

As stated in the Second Reinstatement of 1969, the rights and obligations of the
parties in case of tort is determined by the local law of the state which, with respect to the
particular issue, has the most significant relationship to the occurrence and the parties.
1


In Bates v. Superior Court, 156 Ariz. 46 (Ariz. 1988), the court held that the
inquiry to determine which state has the significant relationship is qualitative and not
quantitative.

Thus, in a tort action, the local law of the state where the injury occurred
determines the rights and liabilities of the parties, unless some other state has a more
significant relationship with the occurrence and the parties as to the particular issue
involved, in which event the local law of the latter state will govern.

1
Sempio-Diy, Alicia, Handbook on Conflicts of Laws, Joer Printing Services, Quezon City,
2007.

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In order to determine the State which has the most significant relationship, the
following contacts are to be taken into account and evaluated according to their relative
importance with respect to the particular issue: (a) the place where the injury occurred;
(b) the place where the conduct causing the injury occurred; (c) the domicile, residence,
nationality, place of incorporation and place of business of the parties, and (d) the place
where the relationship, if any, between the parties is centered.
2


In determining the most-significant relationship under a choice of law issue, the
mere counting of contacts should not be determinative of the law to be applied.
3
It is
rather the relevancy of the contact in the terms of policy considerations important to the
forum, vis-a-vis, other contact states.

In Babcock vs. Jackson 12 N.Y. 2d 473; 191 N.E. 2d. 279, a case for the recovery
of damages was filed in New York by Babcock against Mr. and Mrs. Jackson for the
injuries the former suffered when Mr. Jackson lost control of the car he was driving while
they were travelling in Ontario, Canada. The main issue in this case is whether or not the
plaintiff can recover damages from Mr. Jackson under the New York law notwithstanding
the fact that the injuries were sustained in Ontario, Canada. The U.S. Supreme Court held
that except for the minimum contact with Ontario law as the accident happened in that
place, all the dominant contacts and factors connected with the accident were in New
York. The Court held that the State of New York had the most significant relationship to
the case, hence, the New York laws should apply.

In Saudi Arabian Airlines vs. Court of Appeals (297 SCRA 469), the Supreme
Court held that the Philippine law should apply in this case because it was in the
Philippines that private respondent deceived plaintiff-stewardess. The over-all injury
occurred and lodged in the Philippines. It must be noted also that the plaintiff was
working for respondent here in the Philippines. Furthermore, plaintiffs nationality and

2
Coquia and Pangalangan, Conflict of Laws, 1995.
3
Wilcox v. Wilcox, 26 Wis. 2d 617 (Wis. 1965).

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domicile is also the Philippines. On the other hand, the respondent is a resident foreign
corporation engaged in the business of international air carriage. Hence, the locus delicti
is the Philippines.

2. The Interest-Analysis Approach

Another approach has been suggested by the late Professor Brainerd Currie. It
builds upon the policy analysis of the "significant interest" test; but once a genuine
conflict is discovered, the law of the forum is immediately applied. The rationale behind
the application of forum law must be that any other choice would amount to an
impossible admission, on the part of the court, that the rule of the forum is inferior to the
rule applied. Since, by hypothesis, both policies are relevant to the matter in controversy,
any other rule would require the court to choose a policy directly in opposition to its
own.
4

The Interest-Analysis Approach is made applicable in situations when a case
poses a real conflict between the interests of two or more States. It requires application of
the law of the state with the greatest interest in resolving the particular issue that is raised
in the underlying litigation.
5

When one of two states related to a case has a legitimate interest in the application
of its law and policy and the other has none, the courts apply the law of the interested
state. When two states have conflicting laws pertaining to an issue, interest analysis seeks
to resolve the conflict by first classifying it. If both states are interested in applying
their laws to the facts of a dispute, then there is a true conflict. If only one state is
interested in applying its law, then there is a false conflict. Finally, if no state has an
interest in applying its law, then there is an unprovided-for case.
If a real conflict exists between the interests of two or more States, as when the
interested forum finds that the other State has a greater claim in the application of its law

4
Currie. Conflict, Crisis, and Confusion in New York, 1963 DuKE L. J. 1.
5
Myers v. Hayes International Corp., 701 F. Supp. 618 (M.D. Tenn. 1988).

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to a given case, the forum should yield and apply the law of the other state.
6
When faced
with the problem of choosing between the laws of two states as to which governs a tort
action, the courts make an analysis of the respective interests of the states involved, the
objective of which is to determine the law that most appropriately applies to the issue
involved.
The interest-analysis approach consists of three steps
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: 1) the court examines the
substantive law of each jurisdiction to determine whether the laws differ as applied to the
relevant transaction; 2) if the laws do differ, the court determines whether a true conflict
exists in that each of the relevant jurisdictions has an interest in having its law applied. If
only one jurisdiction has a legitimate interest in the application of its rule of decision,
there is a false conflict and the law of the interested jurisdiction is applied. On the other
hand, if more than one jurisdiction has a legitimate interest, the courts move to the third
stage of the analysis; 3) the third stage focuses on the comparative impairment of the
interested jurisdictions. At this stage, the courts seek to identify and apply the law of the
state whose interest would be the more impaired if its law were not applied.
This approach finds application in the case of Gantes vs. Kason Corp., 145 N.J.
478 (1996), where a young woman, working in a chicken processing plant in Georgia,
was killed when struck in the head by a moving part of a machine. The machine had been
manufactured more than thirteen years before the fatal accident by a New Jersey
corporation with its principal place of business in Linden, New Jersey.
Representatives of the decedent, asserting that the machine was defective, brought
this personal-injury action based on claims of survivorship and wrongful-death against
the New Jersey manufacturer in the Law Division in Union County. The action was filed
within New Jersey's two-year statute of limitations for personal-injury actions, but
beyond Georgia's ten-year statute of repose applicable to products-liability claims against
manufacturers. Because of the conflict between the two statutes, the case poses a

6
Sempio-Diy, Alicia, Handbook on Conflicts of Laws, Joer Printing Services, Quezon City,
2007.
7
CRS Recovery, Inc. v. Laxton, 2010 U.S. App. LEXIS 7050 (9th Cir. Cal. Apr. 6, 2010)

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fundamental choice-of-law issue over which statute applies and whether, depending on
that choice, the action will be barred.
The Court held that "the weight of authority clearly favors following the law of
the state with the interest of compensating its residents, where such law conflicts with
that of the state having solely a deterrence interest. Fair compensation of a tortiously
injured party is the predominant concern of a personal injury claim for the state of
domicile of the injured party, particularly where it is the locus of an industrial accident."
New Jersey's interest in the tortious injury action of a non-domiciliary resident is
nonexistent. Here the accident occurred in Georgia, the machine was being used in a
Georgia factory, decedent was a resident of Georgia who died in Georgia, and decedent's
heirs also are residents of Georgia. Accordingly Georgia's contacts to this litigation and
its interest in its residents and in accidents that occur in its state are substantially greater
than New Jersey's interest.
8

In Heavner vs. Uniroyal Inc. 63 N.J. 130 (1973), plaintiff, a resident of North
Carolina, purchased a truck tire from Pullman, in North Carolina. The tire was
manufactured by Uniroyal, a New Jersey corporation. Plaintiff sought recovery for
personal injuries sustained by him and contemporaneous damages to his car, when a
defect in the tire induced a blow out, causing plaintiff to crash. Plaintiff brought a
personal injury action against Pullman and Uniroyal. No cause of action was ever
commenced in North Carolina. By the time the action was commenced in New Jersey, the
statute of limitations in North Carolina had expired, barring any claims. The Heavner
court rejected the mechanical rule that the Statute of Limitations of the forum state must
be applied in every action involving a foreign cause of action. The court further identified
plaintiff's decision to bring the action in New Jersey as "forum shopping," explaining that
the plaintiff's motivation was to seek a forum "more favorable than that of North
Carolina." Holding that New Jersey law should not apply, the court observed: "[W]e do
not believe that New Jersey has any sufficient interest in this action to call for the
application of its substantive law in preference to that of North Carolina under the
governmental interests choice-of-law principles." The only possible interest, the court

8
Gantes v. Kason Corp., 145 N.J. 478 (N.J. 1996).

12
noted, was that Uniroyal was incorporated in New Jersey. However, the court remarked
"that is not enough."
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3. Qavers Principle of Preference

Under this theory, a higher standard of conduct and financial protection given to
the injured party by one state is applied by the State where the injury was sustained, if the
latter State adopts a lower standard of conduct and financial protection to the injured.
10

Under the Principle of Preference, the following guidelines on which rules on torts
may be applied by States in the absence of statutory provision:
a. Where the State of Injury provides for higher standard of conduct or financial
protection against injury than the State where the tortious act was done, the law of the
former shall govern.
b. Where the State of injury and conduct provides for lower standard of conduct
and financial protection than the home State of the person suffering the injury, the law of
the State of conduct and injury shall govern.
c. Where the State in which the defendant has acted has established special
controls over conduct of the kind in which defendant was engaged, the special controls
and benefits must be applied although the State has no relationship to the defendant.
d. Where the law in which the relationship has its seat imposed higher standard of
conductor financial protection than the law of the State of the injury, the former law shall
govern.
In the case of Scmidt vs. Driscoll Hotel, 249 Minn, 376, N.W. 2
nd
365 (1947), a
complaint alleged that defendant illegally sold intoxicating liquors to John Sorrenson to
the extent of causing him to become intoxicated in defendant's establishment in South St.
Paul so that shortly thereafter, as a proximate result thereof, plaintiff sustained injuries

9
Heavner vs. Uniroyal Inc. 63 N.J. 130 (1973).
10
Sempio-Diy, Alicia, Handbook on Conflicts of Laws, Joer Printing Services, Quezon City,
2007.

13
when an automobile driven by Sorrenson, in which plaintiff was a passenger, was caused
to turn over near Prescott, Wisconsin.
Sued for Tort by the minor plaintiff, instituted this action by his mother and
natural guardian, defendant hotel moved to dismiss the case on the ground that the
accident happened in Wisconsin, the law of which required That the wrongful act and
injury should happen in the same State before recovery can be had.
Applying the Minnesota law to the case would be more in conformity with the
principles of equity and justice since the defendant Hotels wrongful conduct was
completed within Minnesota where Sorrenson was intoxicated before leaving said State
and before going to Wisconsin with the minor. The Court further held that the parties
were both residents of Minnesota whose law demanded a higher standard of conduct than
that of Wisconsin where the accident happened.
11

In Gordon v. Parker, (D. Mass.) 83 F. Supp. 40, an action for alienation of
affections was instituted in Massachusetts by plaintiff, who, with his wife, was domiciled
in Pennsylvania. Therein it appeared that defendant's wrongful acts had taken place in
Massachusetts, and accordingly plaintiff sought the application of a Massachusetts statute
relating to alienation of affections. Defendant contended that, since the matrimonial
domicile of the parties was in Pennsylvania, which accordingly was the place where the
ultimate wrong was done to plaintiff, only Pennsylvania law could be applied. In denying
this contention and applying the Massachusetts statute, the court stated that as the place
of matrimonial domicile, Pennsylvania has an interest in whether conduct in any part of
the world is held to affect adversely the marriage relationship between its domiciliaries.
But, as the place where the alleged wrongdoer lives, Massachusetts also has an interest.
She is concerned with conduct within her borders which in her view lowers the standards
of the community where they occur. She also is concerned when her citizens intermeddle
with other people's marriages.
12

Kilberg Doctrine

11
Scmidt vs. Driscoll Hotel, 249 Minn, 376, N.W. 2nd 365 (1947).
12
Gordon v. Parker, (D. Mass.) 83 F. Supp. 40.

14
This is a rule applied in suits involving conflicts of law that provides that the
forum is not bound by the law of the place of injury or death as to the limitation on
damages for wrongful death action. The rationale behind the doctrine is that laws that set
limitations on damages are procedural. Hence the law of the forum should govern the
issue.
On August 15, 1958, a passenger for hire, traveling in the defendant's plane from
New York to Nantucket, Massachusetts, was killed when the plane crashed on Nantucket
Island. The cause of action under consideration, predicated upon the breach of a contract
made in New York, seeks to recover for loss of accumulation on behalf of the estate,
pursuant to the New York Decedent Estate Law.
The plaintiff alleges substantially that the defendant breached its implied contract
of safe carriage by the negligent operation of its plane, culminating in its destruction and
the death of the passenger.
The plaintiff does not question the general rule that the right to recover in a death
action is governed by the law of the place where the wrong occurred. However, he
contends that the cause of action is not one for wrongful death, or for damages for loss
suffered by the decedent's survivors by reason of his death, but that "It merely asserts a
statutory codification of a common law cause of action for breach of contract, and seeks
on behalf of the decedent's Estate to recover for such Estate the amount the deceased
would have accumulated had he lived out his normal life expectancy." The short answer
is that the cause of action alleges a breach of duty through negligence. The fact that it has
been seductively clothed in form ex contractu does not control. Relief, if any, may be
obtained only upon proof of the defendant's negligence. It follows, therefore, that the
laws of Massachusetts, where the injuries were inflicted, govern the extent of the
damages which may be recovered.
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13
Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d, 133, 172 N.E.2d 526.

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III. Maritime Torts
By: Nathaniel Eric Sio
1. Conflicts Rules on Maritime Torts

1. lf the tort is committed aboard a public vessel whether on the high seas or in foreign
territorial waters, the law of the flag is the lex loci delicti commissii.
2. lf the tort is committed aboard a private merchant vessel on the high seas, the law of
registry is the lex loci delicti commissii.
3. lf two vessels collide and are from the same state. the law of registry is the lex loci
delict commissii.
4. lf the vessels come from different states with identical laws, apply said identical laws.
5. lf the vessels come from different states with different laws, the lex loci delicti
commissii is the general maritime law as understood and applied by the forum where
the case is filed (Paras, supra. p. 394, citing American cases).

2. Philippine Rule on Foreign Torts


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The rule on foreign tort claims is that tortious liability is also considered transitory. The
liability resulting from the tortious conduct is deemed personal to the perpetrator of the wrong,
following him whithersoever he may go, so that compensations may be exacted from him in any
proper tribunal which may obtain jurisdiction of the defendants person, the right to sue not
being confined to the place where the cause of action arises." Ergo, an action may be brought
wherever the tortfeasor is subject to suit.

There is no governing specific statutory law but Philippine Courts may give due course
on the theory of vested rights or most significant relationship provided that there are minimum
contacts and the defendant can be serve with summons. In case of injuries which involve
physical harm, mental disturbance, false imprisonment, malicious prosecution, the law of the
state where the injury was inflicted is applicable and in case of an intentional tort - the law of the
state where the actor initiated or carried out the tortuous act.

We also follow the rule of Generality in criminal law is also followed in torts. The
protective theory is followed in cases mentioned in Art. 2 of the Revised Penal Code, such that
even if the tort was committed outside our territorial jurisdiction, it is triable by our courts.

A foreign tort is actionable and may be the subject of an action for damages in the
Philippines provided that we acquire jurisdiction over the defendant (because an action for
damages is an action in personam) and certain conditions are present, namely:

(1) The foreign tort must not be penal in nature;
(2) The enforcement of the tortuous liability should not contravene our public policy; and
(3) Our judicial machinery must be adequate for such enforcement.

However, that while all procedural matters are governed by the lex fori (i.e., Philippine law),
since the case is filed here, all Substantive matters are governed by the lex loci delicti commissii.
Thus:
(1) The period of prescription of the action is governed by the lex loci delicti commissii
because in Philippine law, prescription is substantive, not merely procedural.

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(2) The proper parties, the measure of damages, and the question whether the act
complained of is considered the proximate cause of the injury, are all governed by the lex
loci delicti commissii.
(3) The burden of proof and the defenses that may be interposed by the defendant are also
governed by lex loci delicti commissii.

3. Example of a foreign tort actionable in the Philippines:

X and Y, both Filipinos, were vacationing in Hongkong. One day, while driving a rented
car, X ran over Y, who was walking, causing the latter to be hospitalized in Hongkong. Upon the
return of both to the Philippines, Y sued X for damages arising from the tort committed by the
latter while they were in Hongkong. The action will prosper provided it is filed within the period
prescribed by Hongkong law, the lex loci delicti commissii, since the period of prescription is
substantive and not procedural. The kinds and measures of damages recoverable by Y, and the
defenses that X may put up, should also be governed by Hongkong law, which is the lex loci
delicti commissii. But all procedural matters like the period for filing the answer, the period for
appeal, etc., should be governed by the lex fori, which is Philippine law.

4. Product Liability of the Foreign Manufacturer

In contrast to the law on contracts where the jurisdiction of the forum court is usually
based on the consent of the parties, the defendant in a transnational tort is often sued in a foreign
court against his will. Hence, there may be a as problem of the legitimacy of the jurisdiction and
the validity of the decision may be questioned. The question of jurisdiction in foreign torts has
given rise to disagreements between courts especially on issues involving products liability. As
stated by the U.S. Supreme Court in Pennoyer v. Neff "every state possesses exclusive
jurisdiction and sovereignty over person and property within its territory no state can exercise
direct jurisdiction and authority over persons and property not within its territory.

However, the Supreme Court of the United States ruled that a state may assert personal
jurisdiction over a foreign corporation that delivers its products into the stream of commerce

18
with the expectation that they will be purchased by consumers in the forum State. (Worldwide
Volkswagen Corp. v. Woodson)

5. The Alien Tort Act

The Alien Tort Act of the United States, which was enacted in 1979, grants U.S. district
courts original jurisdiction over any civil action filed by an alien for a tort committed in violation
of the law of nations or a treaty of the United States. Section 1350 of said law provides a right to
an alien if a tort has been committed against him or her in violation of a treaty with the United
States, or the law of nations.

The celebrated case of Hilao, et al. vs. Estate of Ferdinand Marcos, illustrates the conflict
of laws rule that tort liability is transitory. The claims for damages arising from tort committed
abroad may be given due course in the court of the forum not only in the theory of vested rights
but also the internalization of human rights laws.

lt was also under the Alien Tort Act that the United States Court of Appeals upheld the
jurisdiction of the district court of Hawaii over a class action for damages filed by almost ten
thousand Filipino victims of human rights abuses and torture committed by the late President
Ferdinand Marcos and his officials in the Philippines during the Marcos regime, resulting in a
nearly US$2 billion judgment in favor of the victims and/or their heirs (Trajano v. Marcos-
Manotoc, 125 L.Ed. 2d 661, 113 S. Ct. 2959 In re Estate of Ferdinand E. Marcos Human Rights
Litigation).

The above Statute justifies exercise of court jurisdiction over completely foreign tort
cases because of the universal evil exemplified by human rights violations. That is why in order
for the Alien Tort Act to apply, there is a need to establish that the tortious conduct violated an
internationally protected human right.



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IV. Torts and crimes, distinguished
By: Clarito Demaala IV
1. Distinguish tort from crime
a. While both tort and crime are wrongs, a tort violates private rights while a crime is
committed against the State.
b. Tort actions are instituted by the injured person against the wrongdoer in a civil case
the purpose of which in a civil case the purpose of which is indemnification for
damages suffered; while crimes are prosecuted in the name of the State against the
offender in criminal actions the purpose of which are the protection and vindication
of the interests of the public as a whole, the punishment of the offender, the
reformation of the offender, or to deter others from committing the same act.

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c. Torts are transitory in character, so that the tortfeasors can be made liable for his
wrongful act in any jurisdiction where he may be found. Crimes, on the other hand,
are local and can be prosecuted only in the places or states where the crimes are
committed.

Crime Torts
Legal Basis of Liability
There can be no crime unless there is a
law clearly punishing the act
There can be a quasi-delict as ling as
there is fault or negligence resulting in
damage or injury to another
Criminal Intent
Criminal intent is essential for criminal
liability to exist
Not necessary for quasi-delict to exist.
Fault or negligence without intent will
suffice
Nature of right violated
Right violated is a public one. Crime is a
wrong against the State
Right violated is a private right. It is a
wrongful act against a private individual
Liability
Includes both civil and criminal liability,
some crimes (like contempt, illegal
possession of firearm) do not give rise to
the employers liability under Article
2180, it is direct and primary
Civil liability only. Every quasi-delict
gives rise to liability for damages.
Employers liability is only subsidiary.
Proofs needed
The guilt of the accused must be proved
beyond reasonable doubt
Proof of the fault or negligence require
only preponderance of evidence
Sanction or Penalty
Punishment is either imprisonment, fine
or both; sometimes other accessory
penalties are imposed
Reparation or indemnification of the
injury or damage


21
2. How does the court determine whether a wrongful act is a tort or a crime?
The determination of whether a wrongful act is a tort or a crime depends on the
characterization of the act in the state where said act is committed.
In the Philippines, certain acts may be both torts and crimes. Under art. 33 of the Civil
Code of the Philippines, in cases of defamation, fraud, and physical injuries, a civil
action for damages, entirely separate and distinct from the criminal action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of
evidence.
Take the offenses classified as criminal negligence under Art. 365 of the Revised Penal
Code. They may be prosecuted as crimes by the State. On the other hand, the victims
may file separate actions for damages against the offenders based on torts.




V. Theories on Extraterritorial Competence
By: Marnie Zatarain
THEORIES AS TO WHAT COURT HAS JURISDICTION TO TRY CRIMINAL CASES
(Theories on Extraterritorial Competence)
There are at least six different theories as to what tribunal or legal; system has jurisdiction to take
cognizance of criminal cases: (1) The territorial theory; (2) the nationality or personal theory; (3)
the protective theory (4) the real theory; (5) the cosmopolitan or universality theory; (6) the
passive personality theory.

22
1. Territorial theory Under this theory, the state where the crime was committed has
jurisdiction try the case, and its penal code and the penalties prescribe therein will apply.
The reason is that the aggrieved state is duty bound to prosecute and punish the offender
as his crime affects directly and particularly the dignity, authority, and sovereignty of the
state where said crime is committed and to restore public order and trust. In general, it is
this theory that is adhered to in the Philippines.
14

This theory may be of two kinds:
Subjective territorial principle Under which the state where the crime was begun
may prosecute the same, even if it was completed in another state.

Objective territorial principle Under which the state can prosecute crimes began
abroad but completed within its territory.

Examples: if aliens conspire abroad with persons within the United States to
violate the countrys tariff laws, said aliens may be validly prosecuted in the
Unites States, provided, of course, that somehow the U.S. can get said aliens
within its power.
15
A french naval officer, for an act of negligence originating
from a French vessel was tried in a Turkish Court because the act of negligence
resulted in a collision with a Turkish vessel, and fatal consequences to some
passengers aboard said latter vessel.
16


2. Nationality or personal theory States which follow the nationality or personal theory in
criminal law are of the opinion that the country of which the criminal is a citizen or
subject has jurisdiction to try him for crimes allegedly committed by him, whether the
effectuation of the act be inside or outside its territory, provided that the act is a crime
under said countrys penal law. According to this theory, penal laws follow a citizen or
subject wherever he may be and wherever the crime may be committed, even if this be

14
Philippine Conflict of Laws p.404
15
Ford v. US, 237 us 593; Strassheim v. Daily 221 US 280
16
The lotus case, PCIJ, ser. A. No. 10, 2 Hudson, World Court Reports 20

23
outside of the territorial jurisdiction of his own native land.
17
Other reasons have been
given to this theory; the citizens misbehavior in a forein land adversely affects the social
and moral order of his country; if a citizen abroad expects his countrys protection he
should be ready to obey its laws.
18


3. Protective theory Adherents of the protective theory states that any state whose national
interests may be jeopardized has jurisdiction over criminal offenses, even if committed
outside its territory, and in some cases, even if committed by an alien in order that it may
properly protect itself.
19
By way of exception, this principle finds support in Art. 2 of the
Revised Penal Code of the Philippines. Thus, if a Filipino or an alien should counterfeit
Philippine currency in Singapore, he is amenable to prosecution under our criminal laws
the moment he sets foot on Philippine soil.
20


4. Real or Eclectic theory The real or eclectic theory may be stated in this wise: Any state
whose penal code has been transgressed upon has jurisdiction to bring to justice the
perpetrators of the crime, whether the crime was committed inside or outside its own
territory. While the protective theory takes cognizance only of very important state
prejudicing offenses, the real theory demands authority over all crimes committed against
a states penal law so long as any substantial contact is made with the state (whether it be
contact because of territoriality, nationality, or any of the other theories). Crimes under
this theory would include piracy, slavery, drug trafficking, immoral traffic in women and
children, etc. otherwise stated the real or eclectic theory allows the simultaneous
application of all the theories on extraterritorial competence.
21


5. Cosmopolitan or universality theory Any state where the criminal is found or which has
obtained custody over him, can try him for the crime he has allegedly committed, unless

17
Minor, Conflicts of laws, p.497
18
Harvard Research, p. 519; Paras, Philippine Conflict of laws, p. 405
19
Harvard Research, p.543; Paras,Philippine Conflict of laws, p. 405
20
Paras, Philippine Conflict of Laws p. 405
21
Alcorta, op. cit. pp. 146-147

24
extradition applies. This in nutshell form is the cosmopolitan or universality theory in
criminal law.

6. Passive personality or passive nationality theory The passive nationality theory holds
that the state of which the victim is a citizen or subject has jurisdiction to prosecute the
offense. The reason is that, a wrong having been inflicted on its citizen or subject, a state
is duty bound to seek justice by criminally prosecuting the offender. This theory has been
widely criticized, principally because a national of one country may because of one
criminal act subject himself to the penalties given by several foreign penal codes.
22


ILLUSTRATIVE EXAMPLES OF THE AFOREMENTIONED THEORIES

(1) A Frenchman commits a crime in England against a German. The criminal fled to
Argentina where he is now in the protective custody of the police. Incidentally, the
crime also violates the law of Russia because certain properties involved in the
offense are in Russian territory. What country has jurisdiction over the offense?
ANSWER: Under the territorial theory, England has jurisdiction because the crime
was committed there. According to the nationality or personal theory, France has
jurisdiction, the offender being a French national. Advocates of the real theory will be
inclined to allow Russia (among others) to assume jurisdiction because, the Russian
law on crime has apparently been violated. Argentina, which now has custody over
the aggressor, will have jurisdiction, if we follow the cosmopolitan theory or
universality theory. States which believe in the passive personality theory will say
that Germany ought to have jurisdiction because the victim happens to be
a German.
23



22
Paras, Philippine Conflict of Laws p. 406
23
Paras, Philippine Conflict of Laws p. 406

25
(2) In the example given, if the crime had consisted of the counterfeiting of Philippine
currency, our national economy will be imperiled; under the protective principle, it is
undeniable that Philippines possess jurisdiction.
24














VI. THEORIES APPLICABLE IN THE PHILIPPINE JURISDICTION
By: Vedalyn Altonaga

24
Ibid.

26
I. TERRITORIALITY Penal laws of the Philippines have force and effect only within its
territory.
The territorial theory is manifested in the Article 2 of the Revised Penal Code
Art. 2. Application of its provisions. Except as provided in the treaties and laws of
preferential application, the provisions of this Code shall be enforced not only within
the Philippine Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those who:
xxx
In other words, we cannot prosecute a crime committed abroad in the Philippines,
because it is committed outside our territorial jurisdiction.
LOCUS DELICTI OF CERTAIN CRIMES
Frustrated and consummated
homicide, murder, infanticide and
parricide
Where the victim was injured
Attempted homicide, murder,
infanticide and parricide
Where the intended victim was so
long as the weapon of the bullet
either touched him or fell inside the
territory where he was
Bigamy Where the illegal marriage was
performed
Theft and robbery Where the property was unlawfully
taken from the victim (not the place
where the criminal went after the
commission of the crime)
Estafa or swindling through false
representations
Where the object of the crime was
received
Conspiracy to commit treason, Where the conspiracy was formed

27
rebellion or sedition
Libel Where published or circulated
Continuing Crimes Any place where the offense
begins, exists or continues
Complex Crimes Any place where any of the
essential elements of the crime took
place
We also follow the Rule of Generality in Criminal Law.
RULE OF GENERALITY
Article 14 of the New Civil Code:
Penal laws and those of public security and safety shall be obligatory upon all who live
or sojourn in the Philippine territory, subject to the principles of public international
law and to treaty stipulations.
EXCEPTIONS TO THE RULE ON GENERALITY: Instances when even if the crimes are
committed by persons living or sojourning in the Philippines, our courts cannot exercise
jurisdiction.
1. TREATY STIPULATIONS
Under the RP-US Visiting Forces Accord, which was signed on February 10, 1998, the
Philippines agreed that:
a. US shall have the right to exercise within the Philippines all criminal and
disciplinary jurisdiction conferred on them by the military law of the US over
US personnel in the Philippines
b. US exercises exclusive jurisdiction over US military personnel with regard to
offenses relating to the security of the US, but not under the laws of the RP
c. US shall have primary right to exercise jurisdiction over US military in
relation to:

28
i. Offenses solely against the property or security of the US or offenses
solely against the property or person of US personnel
ii. Offenses arising out of any act or mission done in the performance of
official duty
2. LAWS OF PREFERENTIAL APPLICATION
a. RA 75 penalizes acts which would impair the proper observance by the republic and
its inhabitants of the immunities, rights, and privileges of duly accredited foreign
diplomatic representatives in the Philippines
Persons exempt from arrest and imprisonment and whose properties are exempt from
distraint, seizure and attachment are the following:
i. Ambassadors
ii. Public Ministers
iii. Domestic Servants of Ambassadors and Public Ministers
NOTE: RA 75 does not apply when the foreign country adversely affected does not
provide similar protection to our diplomatic representatives
b. Warship Rule a warship of another country even though docked in the Philippines
is considered as an extension of the territory of their respective country. Same rule
applies to foreign embassies in the Philippines.
3. PRINCIPLES OF PUBLIC INTERNATIONAL LAW
The following persons are exempted:
a. Sovereigns and other heads of the State
b. Ambassadors
c. Ministers Plenipotentiary
d. Ministers Resident

29
e. Charges daffaires
REASON: Foreign states and their heads are exempt because of the sovereign equality of states
and on the theory that a contrary rule would disturb the peace of the nations. Diplomats enjoy the
exemption in order that they may have full freedom in the discharge of their official functions.
NOTE: consuls, vice consuls and other commercial representatives of foreign nations cannot
claim the privileges and immunities accorded to ambassadors and ministers.
II. PROTECTIVE THEORY - In the Philippines, we follow as a general rule the territorial
theory, and by way of exception, the Protective Theory. It is also embodied in Article 2
of the Revised Penal Code and is commonly known us Extraterritoriality.
Extraterritorial Crimes are those where Philippine criminal laws apply to crimes
committed outside the Philippine Territory. They are enforceable even outside Philippine
Territory against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the Philippine Islands
or obligations and securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of
the obligations and securities mentioned in the presiding number;
4. While being public officers or employees, should commit an offense in the
exercise of their functions; or
5. Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of this Code.
I. SHOULD COMMIT AN OFFENSE WHILE ON PHILIPPINE SHIP OR AIRSHIP
Requisites:

30
a. The ship or airship must not be within the territorial jurisdiction of another country
(may be in the Philippine waters or high seas)
b. The ship or airship must be registered in the Philippines under the Philippine laws
RULE ON FOREIGN VESSELS
a. Merchant Vessels Regarding foreign merchant vessels docked in a local port or
bay, jurisdiction is exercised over them by the coastal state in civil matters, but the
criminal jurisdiction is determined according to either the English Rule or the French
Rule

FRENCH RULE

ENGLISH RULE

GENERAL RULE

Crimes committed aboard the vessel
within the territorial waters of the
country are NOT triable in the courts
of said country
Crimes committed aboard a vessel
within the territorial waters of a
country are triable in the court of
such country

EXCEPTION
When their commission affects the
peace and security of the territory or
when the safety of the state is
endangered
When the crimes merely affect things
within the vessel of when they only
refer to the internal management
thereof
It is evident that there is no substantial distinction between the two rules inasmuch as, under
wither, offenses committed on board the foreign vessel shall be triable by the territorial
sovereign when they constitute a disturbance of its peace and all other offenses shall be under the
jurisdiction of the state whose flag the vessel flies.

31
In any event assuming that there is a difference between the two rules, our own Supreme Court
has held that the English Rule is applicable in this country.
CASES:
US vs LOOK CHOW
FACTS:
Defendant was on board the steamship Errol, which is of English nationality. Said
steamship came from Hongkong and is bound for Mexico, via the call ports of Manila
and Cebu. Defendant admitted that the opium seized in the vessel was his and bought by
him in Hongkong to be sold as contraband in Mexico. Upon arrival in Cebu, he sold the
opium
The defense moved for a dismissal of the case, on the grounds that the court had no
jurisdiction to try the same and the facts concerned therein did not constitute a crime.
ISSUE:
Whether the accused is liable under the Philippine courts for mere possession of opium in
its vessel.
HELD:
Although the mere possession of a thing of prohibited use in these Islands, aboard a
foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a
crime triable by the courts of this country, on account of such vessel being considered
as an extension of its own nationality, the same rule does not apply when the article,
whose use is prohibited within the Philippine Islands, in the present case a can of
opium, is landed from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a violation of the penal
law in force at the place of the commission of the crime, only the court established in

32
that said place itself had competent jurisdiction, in the absence of an agreement under
an international treaty.

PEOPLE VS WONG CHENG
FACTS: Appellee is accused of having illegally smoked opium, aboard the merchant vessel
Changsa of English nationality while said vessel was anchored in Manila Bay two and a half
miles from the shores of the city.
ISSUE: Whether the courts of the Philippines have jurisdiction over crime, like the one
herein involved, committed aboard merchant vessels anchored in our jurisdiction waters.
HELD: There are two fundamental rules on this particular matter in connection with
International Law; to wit, the French rule, according to which crimes committed aboard a
foreign merchant vessels should not be prosecuted in the courts of the country within whose
territorial jurisdiction they were committed, unless their commission affects the peace and
security of the territory; and the English rule, based on the territorial principle and followed
in the United States, according to which, crimes perpetrated under such circumstances are in
general triable in the courts of the country within territory they were committed. Of this two
rules, it is the last one that obtains in this jurisdiction, because at present the theories and
jurisprudence prevailing in the United States on this matter are authority in the Philippines
which is now a territory of the United States.
No court of the Philippine Islands had jurisdiction over an offense or crime committed
on the high seas or within the territorial waters of any other country, but when she
came within three miles of a line drawn from the headlands, which embrace the
entrance to Manila Bay, she was within territorial waters, and a new set of principles
became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le
Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then
subject to the jurisdiction of the territorial sovereign subject to such limitations as have been
conceded by that sovereignty through the proper political agency. . . .

33
We have seen that the mere possession of opium aboard a foreign vessel in transit was
held by this court not triable by or courts, because it being the primary object of our
Opium Law to protect the inhabitants of the Philippines against the disastrous effects
entailed by the use of this drug, its mere possession in such a ship, without being used in
our territory, does not being about in the said territory those effects that our statute
contemplates avoiding. Hence such a mere possession is not considered a disturbance of
the public order.
But to smoke opium within our territorial limits, even though aboard a foreign merchant ship,
is certainly a breach of the public order here established, because it causes such drug to
produce its pernicious effects within our territory. It seriously contravenes the purpose that
our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the
Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the
port of Manila in open defiance of the local authorities, who are impotent to lay hands on
him, is simply subversive of public order. It requires no unusual stretch of the imagination to
conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese
residents to smoke opium on board.
b. Foreign Warships in case of a foreign warship, the nationality of such warship
determines the applicable penal laws to crimes committed therein, as they are
considered to be an extension of the territory of the country to which they belong.
Thus, their respective national laws shall apply to such vessels wherever they may ne
found.
II. SHOULD FORGER OR COUNTERFEIT ANY COIN OR CURRENCY NOTE OF
THE PHILIPPINES OR OBLIGATIONS AND SECURITIES ISSUED BY THE
GOVERNMENT
If forgery is committed abroad, it must refer only to Philippine coin, currency note or
obligations and securities

34
Obligations and securities of the GSIS, SSS and Landbank are not of the Government
because they have separate charters.
III. SHOULD INTRODUCE INTO THE COUNTRY THE ABOVE MENTIONED
OBLIGATIONS AND SECURITIES
Those who introduced the counterfeit items are criminally liable even if they were not
the ones who counterfeited the obligations and securities, On the otherhand those who
counterfeited the items are criminally liable even if they did not introduce the
counterfeit items.
IV. WHILE BEING PUBLIC OFFICERS OR EMPLOYEES, SHOULD COMMIT AN
OFFENSE IN THE EXERCISE OF THEIR FUNCTIONS, LIKE:
a. Direct Bribery
b. Indirect Bribery
c. Qualified Bribery
d. Corruption
e. Fraud against Public Treasury and other Similar Offenses
f. Possession of Prohibited Interest
g. Malversation of Public funds or property
h. Failure to Render Accounts Before Leaving the Country
i. Illegal Use of Public Funds or Property
j. Failure to Make Delivery of Public Funds or Property
k. Falsification
V. SHOULD COMMIT ANY OF THE CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS DEFINED IN TITLE ONE OF BOOK TWO
a. Treason
b. Conspiracy to Commit Treason
c. Misprision of Treason
d. Espionage

35
e. Piracy
f. Inciting to war or giving motives for reprisals
g. Violation of neutrality law library
h. Correspondence with hostile country
i. Flight to enemy country
When Rebellion, Coup detat and Sedition are committed abroad, the Philippine
Courts do not have jurisdiction because they are crimes against Public Order













VII. United Nations Convention on the Law of the Sea
By: Clarito Demaala IV

36
1. Did the United Nations Convention on the Law of the Sea change the above rules?
Art. 27 of the said Convention partly provides:

Criminal jurisdiction on board a foreign ship:
1. The Criminal jurisdiction of the coastal State should not be exercised on board a
foreign ship passing though the territorial sea to arrest any person or to arrest any
person or to conduct any investigation in connection with a crime committed on
board the ship during its passage, save only in the following cases:
(a) If the consequences of the crime extend to the coastal State;
(b) If the crime is of a kind to disturb the peace of the country or the good order of
the territorial sea;
(c) If the assistance of the local authorities has been requested by the master of the
ship or by a diplomatic agent or consular officer of the flag State; or,
(d) If such measures are necessary for the suppression of illicit traffic in narcotic
drugs or psychotropic substances.
Under the Rules of the United Nations Convention on the Law of the Sea, Philippine
courts do not acquire jurisdiction over crimes committed on board a foreign vessel even if
it is within our territorial waters as long as the effect of such crime does not disturb our
peace and order. This is similar to the French Rule to the effect that we have no
jurisdiction over crimes committed aboard foreign vessels even if they are found within
out territorial waters except when the crimes affect the peace, order, security, and safety
of our country and territory.
2. Illustrative Case: U.S. vs. Fowler 1 Phil. 614
William Fowler and another defendant were accused of the theft of 16 bottles of
champagne belonging to one Julian Lindsay while on board the transport Lawton, then
navigating the high seas.
The accused presented a demurrer, alleging that the CFI of Manila was without
jurisdiction to try the crime charged, in as much as the crime was committed on the high

37
seas and not in the City of Manila, or within the territory comprising the Bay of Manila,
or even upon seas within the 3-mile limit to which the jurisdiction of the court extends.
The Court ruled that it was without jurisdiction to try the accused for theft alleged to have
been committed on the high seas.
3. Rationale Behind the Rule on Criminal Jurisdiction On Board a Foreign Ship
The principle which governs the whole matter is that disorders which disturb only the
peace of the ship or those on board are to be dealt with exclusively by the sovereignty of
the home of the ship, but those which disturb the public peace may be suppressed, and, if
need be, the offenders punished by the proper authorities of the local jurisdiction.