BritishAmerican Law 101 A Primer


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Susan Markowitz

Guest
A discussion of the British-US judicial system may seem out-of-place on a Titanic discussion site, but the subject has come up, and it does relate at least tangentially to Titanic. Many of those on ET are not governed by Brit.-US law, and so many be unfamiliar with its, erm, intricacies. I'm hoping this will help everyone better understand, not just the Inquiries, but also any related legal actions.

Please note that over time (and independence :)), the British and US systems have diverged, so what I'm writing applies mainly the US.

The British-US system, unlike many others, is founded on the principle that someone being sued -- or charged with a crime -- is presumed innocent, or not liable, until proven otherwise. (In certain legal system, the opposite presumption holds.) The amount of proof necessary depends upon whether it's a civil matter (sounds like a matter of "decency", which, in a way, it is; really, it means that it's not an offense against society); or a criminal matter, which does involve an offense against society.

A civil matter may involve a contract (or agreement between people) that's being disputed, or an insult (slander or libel), or some harm that's been done (a car-accident; a failure to ship goods that were paid for, or to pay for goods or services provided; or, as in some recent cases, manufacturing flaws that resut in injury). There are lots of other sorts of civil cases, too.

A criminal matter is anything that the state, or government, has declared by law as an offense to society as a whole. Misdemeanors are minor wrongs; felonies are major. The exact range is determined by statute.

Before there were courts, people were forced to settle their disputes in other ways, i.e., duels and private revenge. In fact, that was a major issue in Shakespeare's Hamlet: whether Hamlet should take private revenge against his uncle.)

Britain then established what's known as an "adversary system": rather than have a single, professional prosecutor, as some countries do, there would be (at least) 2 advocates, each taking opposite sides. Their job was to provide every possible bit of information helpful to their "client", the person they're representing. (In criminal cases, the state does provide what may appear to be a "professional prosecutor", eg., the district attorney; but often, that person may be no more experienced than the defense counsel.) An impartial judge would then hear both sides, and decide which position had the most merit.

The British system further provided for a "jury of one's peers": ordinary folk with no particular expertise, whose job was to listen to both sides and decide who was right. Jury trials are customary in criminal cases, but convened less often in civil cases. (I'm sure you can understand why, esp. if a civil case involves something highly technical.)

In both civil and criminal cases, it's the job of the plaintiff or prosecutor to prove their case to the satisfaction of the judge (and/or jury); they carry what's called the "burden of proof".

As difficult as it may sound, it is NOT the job of the advocate or attorney to prejudge the merits of their client's case, civil or criminal; that's the job of the judge and jury. Moreover, in criminal cases, even if a lawyer suspects his client may be guilty, once he accepts the job, he must continue to represent that person vigorously, or (in Philadelphia, at least) seek the judge's permission to withdraw. The Code of Professional Responsibility, which governs the conduct of lawyers in the US (there's also a Code of Judicial Responsibility) has a number of disturbing, sometimes conflicting provisions in it (for instance, lawyers are supposed to pursue a case with all vigor, but not bring frivolous lawsuits). The Code has generated much passionate debate (think the salvage and Californian debates get hot-and-heavy?:)) without, IMHO, a satisfactory resolution of the issues.

At any rate, with discussions here like Californian, this group is intensely aware that all too often, not all the facts may be present, and that it may be difficult, if not impossible, to draw conclusions based on the evidence. The idea is that the lawyers, between them, will bring out every possible fact in their favor, and that all of that will be "on the table" for the judge's consideration.

Judges in the US, are either appointed or elected, and are expected to remain impartial. While, IMHO, the idea of appointing judges according to their qualifications (so-called "merit selection") is sound, I've known extremely competent judges who were elected, too.

At the first, or so-called "trial" level, the judge hears the whole case, facts and all. If there's a jury, the jury is given the task of deciding which facts are correct and whom to believe, and the judge then applies the law to the chosen facts to make a determination. If there's no jury, the judge decides facts and applies law.

In the upper level courts, in the US known as "Court of Appeals" ("Superior" in some states) or "Supreme", the facts are taken as-is and not reconsidered; the judges decide whether the lower, trial court correctly applied the law to those facts, or whether something went wrong procedurally. (They do other things, too, but that's the basic idea.)

The British courts tend to be more formal, both in dress and demeanor, than the US courts; but they still following the adversary-system. The more serious cases, as I recall, are brought before the "Queen's Bench", or "QB". (We had the privilege of observing a QB trial while in London, years ago, and chatting with the barrister trying the case. (Another difference there: Britain's advocates are divided between the higher-level "barristers", who can appear in court, and "solicitors", who are less prestigious, and tend to do more office-type law, like drawing up wills.)

Now, as for lawyers being unscrupulous... :) It may be that our profession has more than its share. One problem is the role itself: we're expected to be "hired guns", and to fight as hard as possible for the client; our income depends on it. It's all too easy for some rather over-eager souls to cross-the-line. (I should point out, tho, that the "surprises" you see lawyers pull on each other on TV and in the movies are "poetic license": lawyers are required to share that sort of thing with the other side beforehand, to eliminate the element of surprise.) All the same, I daresay that lawyers who engage in questionable conduct often find themselves in trouble with the Disciplinary Board or the judiciary.

The other point is that lawyers only do what their client asks them to do. Of course, there will always be some enterprising soul who will sue a fast-food restaurant on behalf of an "injured plaintiff" because they coffee was too hot... but it's the jury, not the lawyer, who makes the award. And judges do have a certain amount of discretion to overturn a jury verdict if it's egregious.

Many people have trouble with the idea of someone representing, say, a known mobster or criminal; but under our system, even they have the right to a fair trial, with everything (such as it is!) in their favor presented.

One final thought -- as with so much that's been discussed here, eg., fashion, navigation, etc., the legal world was a VERY different place in 1912. It was not until the Lindbergh-kidnapping-trial (which, BTW, for those interested, is re-enacted every summer at the original courthouse in New Jersey) that people started taking a hard, critical look at the way trials were conducted (and journalists, lawyers, politicians, et al., conducted themselves).

Hope I haven't bored the lot of you! :) I'll be happy to discuss any of this, privately or otherwise, if you like.

Regards to all -- Susan
 
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Thanks Susan! One of my very best friends is a really good lawyer and he finally left his profession this past year due to the social stigma. The profession as a whole lost a really excellent and dedicated person.

I appreciate everything you shared here!
Maureen.
 
Nov 12, 2000
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Hi Susan,

have you done any research into the extensive litigation against White Star after the close of the British enquiry? this seems to be one of the last areas regarding the Titanic story that has not been explored. the only reason I am even aware of this litigation is because Lightoller was hauled into court again and again to defend his actions even though he wasn't on the bridge during the crisis. I believe I read this in Stenson's Lightoller biography. do you know of any other books that delve into the litigation against White Star?

all the best, Michael (TheManInBlack) T
 

Jan C. Nielsen

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Thanks for the interesting dialogue. Can you describe the differences between limited liability in British and American maritime laws? As I understand it, an attempt to incorporate the British standards, in U.S. litigation, failed - - as set forth in Oliver Wendell Holmes opinion, In re: Oceanic Steamship Navigation Co., in 1913. As such, the steamship company's liability for the Titanic disaster was limited to the freight charges, ship's assets (i.e., the lifeboats, etc.), and little more than that. Apparently, if one could somehow show negligence on the part of the steamship company - - then it's possible that the company would be liable for more. But, of course, on advice of counsel, Mr. Ismay and the others acted as if they had never heard of the Titanic. That it was all the captain's fault, and so on. Their attorney, Charles Burlingham, eventually settled the case for a measley $600,000. I managed to recover some of Burlingham's papers from the Columbia University collection. There's not much there, but in them, he insists that he didn't believe there was any liability - - the client only settled because it didn't appreciate the negative publicity. Interestingly, Burlingham lived to be 101, and died in 1959. I think that the Burlingham Underwood admiralty law firm in New York City is a derivative of Charles Burlingham's law firm.
 
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Susan, I only just now had some time to persue your post and I hope you have some more to offer on the subject. As has been pointed out, it's one of the least explored and cosequently, one of the least understood aspects of the whole Titanic story.

I did watch some of the O.J. Simpson Trial in my country, and at the end of it all, I found myself wanting to keep the Lawyers and shoot the network reporters who seemed to want to provoke riots no matter how it came out.(Apologies to Bob Mervine, who I'm certain would have avoided all the inflammatory crud that made it onto the airwaves and in the print media.)

Cordially,
Michael H. Standart
 
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Susan Markowitz

Guest
Thank you so much, Tracy, Maureen, Michael, Joe and Michael!!! I'm astounded that you took the time to read my post; I wondered if anyone would find it worth the bother. :)

One of the greatest things about this group is that, in addition to learning and making friends, one can have doors opened to new and fascinating avenues to investigate. It honestly never occurred to me to apply my training to an analysis of the legal implications of the Titanic disaster. Talk about not seeing the forest for the trees... :)

My knowledge of admiralty law is unfortunately rather limited; it's a highly specialized field. I'd planned to take a course in it, but had to substitute one I needed for the bar (exam, not stool!). Then, before I got married, I applied for a dream-job with the Federal Maritime Commission. But there was a hiring freeze; no openings. I got the "okay" the week I returned from my honeymoon, but just couldn't handle the commute from Philly to DC.

At any rate, I'd love to examine all that Titanic litigation and see what I can discern. The group who miraculously brought the Inquiries online and free-of-charge are, I understand, contemplating the WSL litigation as a future project, which would be terrific; I'd love to help.

In the meantime, I shall certainly see what I can find. Lights has always been a favorite Titanic figure for me; would love to learn more about his various court appearances. IMHO, he deemed it best to take the "company line", and was shabbily rewarded for his trouble.

One "wee" insight: I did manage to study International Law (with the same prof who taught Admiralty; maybe it's just as well I missed it...!). I'm sorry to report that, in effect, there is no such animal. It's whatever a group of nations decides it is -- and if they can't decide, it doesn't exist. I'm joking, of course -- but only halfway. Look at the to-do over what constitutes "international waters".

But the British-US situation is rather unusual, because the latter is derived from the former; and it's not uncommon for US courts to look to English common law for guidance, particularly when examining the historical derivations of corporate liability...

That, BTW, is a fascinating area, IMHO, and one in which I'm somewhat better versed, albeit not in the maritime field, thanks to a fine course I took in products liability. While I cannot speak for the maritime area -- in fact, Parks probably can, far better than I! -- I can tell you that until the 1950's, the prevailing attitude worldwide was basically, caveat emptor (let the buyer beware). Companies in general were not held responsible when something went wrong.

As Joe points out, "negligence" was a key factor in deciding responsibility. Through both statutes and common law, the idea developed that, yes, companies could be held responsible -- but only if they'd not exercised the required standard of care. And even then, until relatively recently, "negligence" was an all-or-nothing thing: you either were or you weren't. Nowadays, courts use a more enlightened standard known as "comparative negligence", holding parties proportionally responsible, say, 70-30, or 60-40. But back then, all you needed to do was show that the complaining party was in any way negligent, too, or somehow contributed to what happened, and that person lost, period.


Moreover, liability/responsibility also didn't occur where the person complaining was engaged in a hazardous activity -- say, working in a mine, or mixing explosives... or, perhaps, sailing across the ocean? That last one is my own speculation -- but back then, shipwrecks were an all-too-common occurrence, and ocean-travel historically was a risky business.

Please understand, I'm speculating rather broadly here -- and without reference to the laws that were in place at the time and would have overridden certain aspects of common law. The point is that the situation back then legally would have been very pro-company and very unsympathetic to victims and their families.

BTW, Joe, Oceanic Steam Navigation Co. was a famous case; will have to look it up. Also, I'm guessing you're correct about the Burlingham firm. As for the slight name-change... law firms are like marriages -- unstable ones at that! You'd need a scorecard to keep up with all the incarnations those fancy firms go through (and a big budget to cover the expense of reprinting stationery.:))

Michael S. -- thanks, too, for your willingness to consider what the lawyers were up to in Simpson. I've always tried to keep myself as "grounded" as possible (and I'm always being asked by friends, what does such-and-such mean... :)). I can also remember my own incredulity, when studying criminal law, at all the shades-and-nuances of insanity. On the surface, and to the lay-person, the whole thing seems utterly absurd, and, yes, insane. But there are complex, painstakingly hammered-out reasons for what seems like a lot of legal jargon, as the law tries to set out what's required for a person to commit a certain act and have meant to do it.

Ah, well -- enough for tonight! :) Thanks again, all of you, for the thoughts and ideas.

All the best -- Susan
 
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Gavin Murphy

Guest
I think the critical point from a legal perspective was to show (or not show) negligence on the part of WSL. If that could be shown, it would then leave the co. financially liable to the large number of cases originally lodged by the passengers, victim's families, estates, etc. Without showing negligence, it was only liable to the normal compensation as provided for at the time for basic sea travel losses. It's the same today with losses from lost luggage on airlines and losses in hotel rooms, etc. Without negligence, they are only obliged to refund a mere pittance of the total losses. I think in the case of hotel break-ins, it is only $40...barely the price of a shirt!

And that explains why, in the end, the WSL only had to pay out chump change...no negligence shown on its part....at least that was what Mersey said.

Help me Susan, do I have this right?????

Regards,

G
 
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Susan Markowitz

Guest
You most certainly do, Gavin! At least, from my at-the-moment rather limited perspective; I need to check whether statutory (i.e., government-body-passed) admiralty law modified that, and to what degree.

I personally was shocked to learn that prior to the use of the comparative negligence standard, even one measly percent of so-called "contributory negligence", i.e., that the person complaining did something negligent themselves or otherwise didn't do something logical to minimize the damage, they were unable to collect a single penny.

It's only been comparatively recently, within the last, say 50 years, that the degree of negligence had to be balanced out. Moreover, there are new forms of liability now, called "strict liability", under which companies may be held liable regardless of whether or not they were negligent. For instance, a company that manufactures a product (it began with cars) that causes injury or death can be held responsible, even tho they followed every manufacturing rule of the day, and met the so-called "industry standard" for that sort of item. Basically, it's society's way of passing costs on to those who can best afford to pay them -- and also, to force those with some control over the manufacturing environment to do everything they can to make products safe.

Hope that helps -- and is coherent! :)

All the best -- Susan
 
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Gavin Murphy

Guest
Hi Susan.

Thanx for the explanation. As far as I know, strict liability has been around for at least a century in UK and Canada. Actually in Canada, the defense to a strict liability offence is due diligence. For a third category, absolute liability, there is no requirement to prove any additional element of fault other than the mere fact of doing the act in question, i.e. going through a red light, etc.

I think the strict liability you are referring to above is actually absolute liability as now known in Canada.

Are you totally confused???????
 
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G'Day Susan, and I think I was commenting on the shennanigans of the press, particularly the broadcast media. The lawyers on both sides were simply doing their jobs as the canons of ethics required them to. All possible zeal and all that. Some might have regarded Simpson's Dream Team or Marcia Clark as snakes in the grass, but if they hadn't tried every tactic possible, they would have had much to answer for.

Enough of that however. Since we seem to have touched on the question of Admiralty law, perhaps somebody can explain how an American Court could have jurisdiction in regards to a sunken British Registered ship, to wit; determining salvage rights. I have a bare bones comprehension of it, but I wouldn't call it an understanding that I could explain to somebody else. (And yes, I have been asked about it, and expect to be asked again in the future. Everybody at my workplace knows about my little hobby.)

Cordially,
Michael H. Standart
 
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Believe it or not there was an historic decision made with regards to Titanic on this very thing due to a decision made regarding an accident earlier involving two UK ships and international passengers.

The questions raised were regarding a single ship having an accident where 1) no other ship was involved and 2) passengers from many countries including the US were involved. Passengers from the US were entitled to sue in either the US or UK and therefore all passengers would be provided the right to collect damages in the US.

The courts decided that the siutation of a single ship carrying international passengers hitting an iceberg (of no known address he he) would be the same affect as two ships of the same country having the accident while carrying international passengers.

I love this board! Thanks so much Susan and I want the first copy of your book when you write it!
Maureen.
 

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