Say the ratio out loud before you open Reasoning — recalling it unprompted is exactly what the exam pays for.
Why it matters
It is the only authority in this course for the first limb of the rule in Phillips v. Eyre — that the wrong must be actionable if committed in England. A rule of double actionability with only one case behind each limb is a fragile rule, and saying so is part of the answer.
Facts
Foreign shipowners sued the owners of a British steamer for collision damage caused by the negligence of a compulsory pilot in Belgian territorial waters. Belgian law made the owners liable; English law then did not.
Held
The action was dismissed: it would be contrary both to principle and to authority to award a remedy for an act that constituted no wrong by English law.
Reasoning
Step one — state the rule being applied. To found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled: first, the wrong must be of such a character that it would have been actionable if committed in England; secondly, the act must not have been justifiable by the law of the place where it was done.
Step two — apply limb one. English law recognised no liability for the negligence of a compulsory pilot, so there was no English wrong, and the action failed at the first step whatever Belgian law said.
Step three — read the asymmetry, because it is the whole criticism. Limb one demands actionability by the lex fori; limb two demands only non-justifiability by the lex loci delicti. The rule does not require the wrong to be a tort in both places; it requires it to be a tort in England and merely not innocent abroad.
Exam use
It opens: Explain the rule of double actionability — give the rule from Phillips v. Eyre, then this case for limb one and Machado v. Fontes for limb two.
Set out what Machado did to limb two, since the two cases together make the criticism: a libel published in Brazil attracting no civil liability there was nonetheless held not justifiable because criminal proceedings were possible, and the plaintiff recovered in England. The whole substance of the obligation thus turned on English law, a system involved in the case solely because the plaintiff chose to sue there — so the rule as applied collapses into the lex fori theory, with its invitation to forum-shop.
Then give Boys v. Chaplin, where two Englishmen in Malta produced £53 of special damages by Maltese law and £2,250 including general damages by English law; the House was unanimous on the result and every member gave different reasons, so the chance to elucidate the law was lost.
Close with the provenance point, which is worth a mark: a rule stated in 1870 by a single judge in a case about a colonial Act of Indemnity governed English choice of law in tort for a century before the House of Lords examined it, and when it did it could not agree. A rule of that provenance is a rule ready for legislation.
It does not decide anything about the place of the tort or about the proper law of the tort; it decides only that the lex fori must supply a cause of action.