1. The results of The Esso Malaysia [1974] 2 Lloyd’s Rep., [1974] 2 All E.R. 705, may at first sight seem surprising. The case concerned an action by the personal representative of the dependants of 24 seamen drowned as a result of a tragic collision between the trawler crewed by the seamen and the tanker Esso Honduras, a sistership of the Esso Malaysia. The fact, that in these circumstances, the personal representative obtained a judgment on liability only, with damages to be assessed, may not give rise to any surprise. Since 1846 the Fatal Accidents Acts 1846 to 1959 have given a cause of action to dependants against the persons by whose wrongful act, neglect or default the death was caused, if such act, neglect or default would have given the deceased a cause of action, if death had not ensued.

2. What may cause surprise is the fact that the Fatal Accidents Acts give a right of action against a foreign defendant at the suit of foreign dependants of deceased foreigners when the deaths occurred outside English territorial jurisdiction. This was recognised by the judgment in The Esso Malaysia. In that case the collision occurred on the High Seas in the North Atlantic, off the United States of America. The Esso Honduras was registered in Panama. Her owners were a company incorporated and resident in Panama and her crew was principally Spanish. The trawler was registered in Latvia and owned by a fishing Kolkhoz, resident in Lepaia, in Latvia. Her crew were domiciled and resident in Latvia, as were the majority of their dependants. Some dependants were domiciled and resident in other parts of the U.S.S.R. The nationality of the crew and their dependants was Russian.

3. There were two earlier cases on the application of the Fatal Accident Acts to collision on the High Seas. The first was Adam v. The British and Foreign Steamship Co. Ltd., [1898] 2 Q.B. 430 and the second Davidsson v. Hill [1901] 2 K.B. 606. The former case was a decision of Darling, J., who held that the dependants of a foreigner could not recover from a British defendant because:

The latter case was the decision of Kennedy, J., and Phillimore, J., sitting as a Divisional Court. In that case the Court refused to follow Darling, J.’s decision and held that the Fatal Accidents Acts gave a right of action in that situation. The Court was careful not to express any opinion on whether a right of action would lie against a foreign defendant at the suit of foreign dependants.