233 F.

2d 541

Leo WALTON, Plaintiff-Appellant,

v.
ARABIAN AMERICAN OIL COMPANY, DefendantAppellee.
No. 291, Docket 23987.

United States Court of Appeals Second Circuit.

Argued March 15, 1956.
Decided May 15, 1956.

O'Neill, Higgins & Latto, New York City, John V. Higgins, New York
City, of counsel, for plaintiff-appellant.
Reilly & Reilly, New York City, for defendant-appellee.
Before FRANK, LUMBARD and WATERMAN, Circuit Judges.
FRANK, Circuit Judge.
Plaintiff is a citizen and resident of Arkansas, who, while temporarily in
Saudi Arabia, was seriously injured when an automobile he was driving
collided with a truck owned by defendant, driven by one of defendant's
employees. Defendant is a corporation incorporated in Delaware, licensed
to do business in New York, and engaged in extensive business activities
in Saudi Arabia. Plaintiff's complaint did not allege pertinent Saudi
Arabian 'law,' nor at the trial did he prove or offer to prove it. Defendant
did not, in its answer, allege such 'law,' and defendant did not prove or
offer to prove it. There was evidence from which it might have been
inferred, reasonably, that, under well-established New York decisions,
defendant was negligent and therefore liable to plaintiff. The trial judge,
saying he would not take judicial notice of Saudi-Arabian 'law,' directed a
verdict in favor of the defendant and gave judgment against the plaintiff.
1. As jurisdiction here rests on diversity of citizenship, we must apply the
New York rules of conflict of laws.1 It is well settled by the New York
decisions that the 'substantive law' applicable to an alleged tort is the 'law'
of the place where the alleged tort occurred. See, e.g., Conklin v.

Canadian-Colonial Airways, Inc., 266 N.Y. 244, 248, 194 N.E. 692. This
is the federal doctrine; see, e.g., Slater v. Mexican National Railroad
Co.,194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. Cuba R. Co. v. Crosby, 222
U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274. This doctrine is often said to be
based on the motion that to hold otherwise would be to interfere with the
authority of the foreign sovereign.2
It has been suggested that, where suit is brought in an American court by
an American plaintiff against an American defendant, complaining 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, in some
circumstances, should apply the forum's tort rules. See Morris, The Proper
Law of a Tort, 64 Harv.L.Rev. (1951) 881, criticizing, inter alia, Slater v.
Mexican National Railroad, 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900.2A
There, and in 12 Modern L.Rev. (1949) 248, Morris decries, as
'mechanical jurisprudence,' the invariable reference to the 'law' of the
place where the alleged tort happened.2B There may be much to Morris'
suggestion; and a court-- particularly with reference to torts, where
conduct in reliance on precedents is ordinarily absent3 -- should not
perpetuate a doctrine which, upon re-examination, shows up as unwise
and unjust.4 Although in a diversity case a federal court must apply the
'substantive' conflicts rules of the state in which the court sits, that duty
perhaps does not require acceptance of state court decisions which are
clearly obsolescent; see the concurring opinion of Mr. Justice Frankfurter
in Bernhardt v. Polygraphic Co. Inc., 350 U.S. 198, 76 S.Ct. 273.4A But
we see no signs that the New York decisions pertinent here are
obsolescent.5

2. The general federal rule is that the 'law' of a foreign country is a fact which
must be proved.6 However, under Fed.Rules Civ.Proc. rule 43(a), 28 U.S.C.A.,
a federal court must receive evidence if it is admissible according to the rules of
evidence of the state in which the court sits. At first glance, then, it may seem
that the judge erred in refusing to take judicial notice of Saudi Arabian 'law' in
the light of New York Civil Practice Act, 344-a.7 In Siegelman v. Cunard
White Star, 2 Cir., 221 F.2d 189, 196-197, applying that statute, we took
judicial notice of English 'law' which had been neither pleaded nor proved. Our
decision, in that respect, has been criticized;8 but it may be justified on the
ground that an American court can easily comprehend, and therefore, under the
statute, take judicial notice of, English decisions, like those of any state in the
United States.9 However, where, as here, comprehension of foreign 'law' is, to
say the least, not easy, then, according to the somewhat narrow interpretation of

the New York statute by the New York courts,9A a court 'abuses' its discretion
under that statute perhaps if it takes judicial notice of foreign 'law' when it is
not pleaded,10 and surely does so unless the party, who would otherwise have
had the burden of proving that 'law,' has in some way adequately assisted the
court in judicially learning it.11
2

3. Plaintiff, however, argues thus: The instant case involves such rudimentary
tort principles, that the judge, absent a contrary showing, should have presumed
that those principles are recognized in Saudi Arabia; therefore the burden of
showing the contrary was on the defendant, which did not discharge that
burden.12 But we do not agree that the applicable tort principles, necessary to
establish plaintiff's claim, are 'rudimentary': In countries where the common
law does not prevail, our doctrines relative to negligence, and to a master's
liability for his servant's acts, may well not exist or be vastly different.
Consequently, here plaintiff had the burden of showing, to the trial court's
satisfaction, Saudi Arabian 'law.'13

This conclusion seems unjust for this reason: Both the parties are Americans.
The plaintiff was but a transient in Saudi Arabia when the accident occurred
and has not been there since that time. The defendant company engages in
extensive business operations there, and is therefore in a far better position to
obtain information concerning the 'law' of that country.13A But, under the New
York decisions which we must follow, plaintiff had the burden. As he did not
discharge it, a majority of the court holds that the judge correctly gave
judgment for the defendant.

4. In argument, plaintiff's counsel asserted that Saudi Arabia has 'no law or
legal system,' and no courts open to plaintiff, but only a dictatorial monarch
who decides according to his whim whether a claim like plaintiff's shall be
redressed, i.e., that Saudi Arabia is, in effect, 'uncivilized.' According to
Holmes, J.-- in Slater v. Mexican National R. Co., 194 U.S. 120, 129, 24 S.Ct.
581, 584, 48 L.Ed. 900, in American Banana Co. v. United Fruit Co., 213 U.S.
347, 355-356, 29 S.Ct. 511, 53 L.Ed. 826, and in Cuba R. Co. v. Crosby, 222
U.S. 473, 478, 32 S.Ct. 132-- the lex loci does not apply 'where a tort is
committed in an uncivilized country' or in one 'having no law that civilized
countries would recognize as adequate.'14 If such were the case here, we think
the New York courts would apply (and therefore we should) the substantive
'law' of the country which is most closely connected with the parties and their
conduct-- in this case, American '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 showing.

5. The complaint in this action was filed on May 10, 1949. Pre-trial hearings
were held before Judge Conger on December 2, 1952; January 7, 1953; March
31, 1953; and April 10, 1953. At these hearings the question of proving SaudiArabian law was discussed. When the case came on for trial on November 7,
1953 Judge Bicks indicated that in his view the burden was on the plaintiff to
prove the foreign 'law'. When the plaintiff's counsel said that he was not
prepared to prove the 'law' of Saudi-Arabia, Judge Bicks proposed that the case
be adjourned long enough to allow the plaintiff to prepare such proof. It was
agreed that the case be put over for two days to enable the plaintiff to decide
whether to request an adjournment for that purpose.

When the hearing resumed on November 9, plaintiff's counsel unequivocally

took the position that he did not wish to prove the foreign 'law' and wanted no
adjournment. He chose to rely on the applicability of New York 'law'. To that
end he proposed that he proceed to present his case in order to make a record
for appeal. The plaintiff's evidence as to liability was presented and on a proper
motion the judge dismissed the complaint. He specifically ruled that he would
not take judicial notice of the 'law' of Saudi-Arabia and that the plaintiff's
failure to prove that 'law' required dismissal.

Since the plaintiff deliberately refrained from establishing an essential element

of his case, the complaint was properly dismissed. The majority of the court
thinks that, for the following reasons, it is inappropriate to remand the case so
that the plaintiff may have another chance: He had abundant opportunity to
supply the missing element and chose not to avail himself of it. It does not
appear whether Judge Bicks or counsel for the parties considered the
application of Section 344-a of the New York Civil Practice Act. Since Judge
Bicks specifically determined that he would not take judicial notice of the
Arabian 'law', he must have considered that in some circumstances he might
take judicial notice of foreign 'law'. But in any event, as we have pointed out, it
would have been an abuse of discretion under the New York cases to take
notice of the foreign 'law' here. The judgment of dismissal must therefore be
affirmed.

The writer of the opinion thinks we should remand for this reason: Apparently
neither the trial judge nor the parties were aware of New York Civil Practice
Act, 344-a; consequently, in the interests of justice,15 we should remand with
directions to permit the parties, if they so desire, to present material which may
assist the trial judge to ascertain the applicable 'law' of Saudi-Arabia.16

Affirmed.

Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85
L.Ed. 1477

See, e.g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29
S.Ct. 511, 53 L.Ed. 826
A variant but related notion is that the foreign sovereign alone has the power to
create a legal obligation resulting from an act done within the territory over
which it has 'jurisdiction', and that, if that sovereign does create such an
obligation, that obligation accompanies the person of the defendant
everywhere. See, e.g., Western Union Telegraph Co. v. Brown, 234 U.S. 542,
547, 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 criticisms of this view, see, e.g., Cook, The Logical
and Legal Bases of the Conflict of Law (1942) 7, 311 et seq.; Dodd, 39
Harv.L.Rev. (1926) 533, 536-537.
For a different view, see, e.g., Judge Learned Hand in Guiness v. Miller, D.C.,
291 F. 768, 770; Direction der Disconto-Gesellschaft v. U.S. Steel Corp., D.C.,
300 F. 741, 744.
2A Cf. Wightman, J., and Willes, J., in Scott v. Lord Seymour, 1 H. & C. 219,
233-234, 236, 158 Eng.Rep. 865, 871-873, cited in the dissenting opinion in
Slater v. Mexican Nat. R.R. Co., 194 U.S. at page 132, 24 S.Ct. 581.
2B Cf. Stumberg, Conflict of Laws (1951), 201 et seq.

Note the reference in Cuba R. Co. v. Crosby, 222 U.S. 473, 480, 32 S.Ct. 132,
133, to parties who 'enter into civil relations' and to a 'rule * * * under which
the parties dealt.' Those phrases are awkward in their application to what we
call torts

See, e.g., Seavey, The Waterworks Cases and Stare Decisis, 66 Harv.L.Rev.
(1952) 84; Cf. Denning, The Road to Justice (1955) 6, 92, 98
4A Cf. Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 359; Pierce v. Ford
Motor Co., 4 Cir., 190 F.2d 910; Trowbridge v. Abrasive Co., 3 Cir., 190 F.2d
825.

Were this not a diversity case, it might perhaps be appropriate to suggest that
the Supreme Court should reconsider the accepted doctrine (as to the complete
dominance of the 'law' of the place where the alleged tort occurred) which
seems to have been unduly influenced by notions of sovereignty a la Hobbes.

See Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 51 L.Ed. 834
(referring to Hobbes and Bodin), cited in American Banana Co. v. United Fruit
Co., 213 U.S. 347, 358, 29 S.Ct. 511, 53 L.Ed. 826; cf. Jaffe, Book Rev., 66
Harv.L.Rev. (1953) 939, 941 as to the reification of the 'notion of power.'
6

See, e.g., Black Diamond S.S. Corp. v. Robert Stewart & Sons, 336 U.S. 386,
396-397, 69 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. 274; Liverpool & G. W. Steam Co. v. Phenix Ins.
Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788; 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 v.
Uhl, 2 Cir., 137 F.2d 858, 861; Dickerson v. Matheson, 2 Cir., 50 F. 73, 76

It reads, in part:
'A. Except as otherwise expressly required by law, any trial or appellate court,
in its discretion, may take judicial notice of the following matters of law:
'1. A law, statute, proclamation, edict, decree, ordinance, or the unwritten or
common law of a sister state, a territory or other jurisdiction of the United
States, or of a foreign country or political subdivision thereof. * * *
'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 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 to preclude either the trial or appellate court from taking
judicial notice thereof.'

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 14, 20; U.S. ex rel. Zdunic v. Uhl, 2 Cir., 137
F.2d 858

For a different possible justification, see Busch, loc. cit. at 649

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 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. (1943), 625, 628.

Moreover, the taken-for-granted, unexpressed, background assumptions of
English judges and lawyers differ from the unspoken assumptions of American
judges and lawyers, and thus may well induce serious misunderstandings.
Holmes, J., noted the baffling character of such tacit assumptions in a foreign
system like that of Puerto Rico; see Diaz v. Gonsolez, 261 U.S. 102, 105-106,
43 S.Ct. 286, 67 L.Ed. 550. Tacit English assumptions may be even more
baffling to an American.
9A For criticism of this narrow interpretation, see Nussbaum, Proving the Law
of Foreign Countries, 3 Am.J. of Comp.Law (1954) 60-62; cf. Nussbaum, The
Problem of Proving Foreign Law, 50 Yale L.J. (1941) 1018, 1023.
10

Greiner v. Freund, 286 App.Div. 996, 144 N.Y.S.2d 766; Arams v. Arams, 182
Misc. 328, 45 N.Y.S.2d 251; see also the articles cited in note 8, supra

11

Sonnesen v. Panama Transport Co., 298 N.Y. 262, 82 N.E.2d 569; Berg v.
Oriental Consol. Mining Co., Sup., 70 N.Y.S.2d 19

12

Cuba R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132, 56 L.Ed. 274;
Industrial Export & Import Corp. v. Hongkong & Shanghai Banking Corp., 302
N.Y. 342, 349-350, 98 N.E.2d 466; Ehag Eisenbahnwerte H.A. v. Banca Nat.,
306 N.Y. 242, 249, 117 N.E.2d 346; Arams v. Arams, 182 Misc. 328, 45
N.Y.S.2d 251

13

See Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251, and the other cases
cited in the preceding footnote; see also Whitford v. Panama R. Co., 23 N.Y.
465; Crashley v. Press Pub. 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; Ozanic v. U.S., 2 Cir., 165 F.2d
738, 744
13A See Nussbaum, 3 Am.J. of Comp.Law (1954) 60, 62; Nussbaum, 50 Yale
L.J. (1941) 1018, 1043.

14

Cf. Dicey, Conflict of Laws (2d ed.) 726, cited in American Banana Co. v.
United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826. The latest or
6th edition of Dicey (1949) 805 repeats the statement
14A This is in line with the idea that the 'proper law' is that of the place of
paramount contacts, as to which see Cheatham, Goodrich, Griswold and Reese,
Cases and Materials on Conflict of Law (3d ed., 1951) 420 et seq.; cf. 204, 239240; Cavers, A Critique of The Choice of Law Problem, 47 Harv.L.Rev. (1933)
173, 191-193.

As the tort rules, pertinent here, of New York, Delaware and Arkansas are
doubtless substantially similar, there would be no need to choose one or the
other.
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. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221; U.S. v. Rio Grande
Dam & Irrigation Co., 184 U.S. 416, 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 SpringFilled 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.
In the instant case, a letter from Hon. Raymond T. Yingling, Assistant Legal
Adviser of the U.S. Department of State, suggests to the writer that, with little
or no expense, the parties probably could procure some information as to the
pertinent legal rules of Saudi Arabia; perhaps, also, further information could
be procured without expense from officials of The United Nations.