Tub: HISTORICAL AND EPISTFMOLOGICAL OBSTACLES 165 ship was at fault in getting on to the wall, or must the ship prove that she herself was not at fault? In my opinion the burden is on the ship. She does not justify herself in law by necessity alone, but only by unavoidable necessity, and the burden is on her to show it was unavoidable.-’’^ The image here is not one of a relationship between two legal subjects but of a bond between persona (owner) and res (ship). This adds a whole new dimension to the facts since, as Denning LJ indicates, one does not look just at the act of discharging the oil; one looks at the whole activity of putting to sea a ship carrying a cargo capable of causing damage if it escapes. It is not so much a matter of applying different rules as such, although the tort of public nuisance is different fromthe tort of negligence; it is a question of changing the dimension of the facts which in turn reveals a quite different image. There is no longer an analogy with the act of driving a car. In the House of Lords,-’’" the only way to restore the original image of the traffic accident was through the law of procedure. Consequently the plaintiffs were refused permission to plead a further cause of action based on the breach of a direct duty between Esso and Southport Corporation in respect of putting to sea an unseaworthy ship. According to Lord Radcliffe the case had to be decided in accordance with the pleadings since the defendants were entitled to conduct the case and confine their evidence in reliance upon the particulars of the statement of claim which had been delivered by the plaintiffs. Such particulars, he continued, help to define the issues and to indicate to the party who asks for them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues. And if an appellate court was to treat reliance upon themas pedantry or mere formalism, then Lord Radcliffe could not see what part they have to play in the English trial system.-’’*^ 9. Les mots et les choses It would no doubt be too easy to say that the difference between the English and the Continental mentalities is, following Foucault, to be found in the opposition between objects and language.Nevertheless the symmetry of the codes imposes itself on persons and things in a way that both disciplines and simplifies the object of legal knowledge, that is to say the ‘real’ world as constituted by the institutions of persons {personae) and things {things) together with the quasi-normative concepts of damage, fault, control, interests and the like. No doubt common lawyers construct their ‘real’ worlds using the same At pp. 197-198. -‘‘7 [1956] AC218. 5« [1956] ACat p 241. M. Foucault, Lcs mots ct les choscs (Gallimard, 1966). 12
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