Lloyd's Maritime and Commercial Law Quarterly
Learning the lesson of Lorentzen v Lydden
Adrian Briggs*
If one accepts that title to movable property is governed by its lex situs, and that the role of public policy in the conflict of laws is to prevent the application of a rule of foreign law in circumstances in which its reception in English proceedings would be intolerable, one may struggle to justify the decision in Lorentzen v Lydden, with the defence of which this paper is primarily concerned. In seeking to explain how and why that decision is correct, it is observed that, though the rules of the conflict of laws are capable of pragmatism, and that there is more to the common law conflict of laws than its representation as a series of two-dimensional directions might suggest, it should not be forgotten that our conflicts rules are part of a larger common law, and not always the most important part.
I. SETTING THE SCENE
In May 1940, the Kingdom of Norway was in a state of crisis. Its neutrality had not prevented its invasion by nazi Germany on 9 April; by the end of May only Narvik was still being fought over, and that fight was to be soon lost. On 18 May the Royal Norwegian Government,1 then at Trondheim,2 enacted a decree to take into its ownership all registered vessels of the Norwegian merchant marine, all vessels under construction for it, and all claims belonging to the ships’ owners, situated outside the territory of occupied Norway, appointing the Minister of Shipping, Øivind Lorentzen, as “curator” with authority to exercise the rights assumed by the state. The purpose of the decree, so far as a legislative act could bring it about, was to prevent maritime assets outside Norway falling into the ownership, possession or control of the enemy. Lydden & Co was an English company.
* KC; Emeritus Professor of Private International Law, University of Oxford. A synopsis of the arguments in this paper was presented to the Conflicts Discussion Group at the University of Oxford on 12 May 2023. I am grateful to the organisers for the invitation, and to those who attended for the comments and for the prompts to further reflection.The following abbreviation is used:Dicey: Dicey, Morris & Collins on The Conflict of Laws, 16th edn (London: 2022).Unattributed page references are to Lorentzen v Lydden & Co Ltd [1942] 2 KB 202.
1. That this body was recognised at all material times by His Majesty’s government as the lawful government of Norway was confirmed by Foreign Office on enquiry made by the judge: Lorentzen v Lydden & Co Ltd [1942] 2 KB 202, 212.
2. So says the Law Report. Norwegian sources (https://notraship.wixsite.com/notraship/history) indicate that the government was then at Tromsø. A Thowsen (ch.7 of P Salmon (ed), Britain and Norway in the Second World War (HMSO, 1995), 55) cites a Provisional Order in Council of 22 April 1940 as the source of the power, but the order was remade, in final form, on 18 May 1940.
Learning the lesson of Lorentzen v Lydden
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