BOOK REVIEWS

REVUE DES LIVRES

Falconbridge on Banking and Bills of Exchange . Seventh Edition.By ARTHUR W. ROGERS. Toronto: Canada Law Book Com-pany. 1969 . Pp . lxxiv, 946. ($40.00)

Canada is not rich in legal textbooks but this treatise is surely theexception which proves the rule . The enormous value of this bookto both student and practitioner has been recognized by Dr.Rogers who has wisely refrained from varying the late John D.Falconbridge's language except where this was unavoidable. Norhas Dr . Rogers substantially altered the structure of the Sixth Edi-tion. The extent to which the book is the same as the previousedition is an indication of just how settled and mature our com-merical law is in the area of banking and bills of exchange.

The first eleven chapters of the new edition take account of thechanges brought about by the new Bank Act' which came intoforce in early 1967 . The rules developed to meet the "MercantileBank crisis" are analyzed and compared to previous rules. On theconstitutional law issue in Chapter 2, readers should note that thecase of Breckinridge Speedway Limited et al . v. The Queen inRight of Alta.,' which had only reached the Appellate Divisionof the Supreme Court of Alberta at the time the book went topress, has now been considered by the Supreme Court of Canadawhich sustained the judgment of the Appellate Division withoutdetermining whether The Treasury Branches Act' of Alberta wasultra vires of the legislature of Alberta.

The book mentions but quickly passes over one of the mostimportant problems which must be faced by Canadian commerciallawyers, namely, that of the conflicts in priority between section88 security claims and interests governed by provincial law,especially now that the new Bank Acthas freed the hands of banksin lending upon the security of personal property . The problemis all the more pressing in the light of the lead shown by Ontario'sPersonal Property Security Act.' As Professor Jacob Zeigel, one of

' S.C., 1966-67, c. 87 .' (1967). 64 D.L.R . (2d) 488.' S.A ., 1955, c. 344.1 S.Q ., 1967, c. 73 .

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Canada's leading experts in commercial law, has said, when dis-cussing this point:'

There is clearly a strong case for the harmonization of the federal andprovincial laws.

Furthermore, there is a strong case for considering the effect onCanada's present law of what has been learned from one ofthe great intellectual efforts of the twentieth century in commerciallaw, namely, the Uniform Commercial Code of the United States,now the law of all the states but one (Louisiana) . We were morefortunate historically than the United States of America becausethe British North America Act provided for uniformity acrossCanada of bills of exchange laws by making it a matter of federaljurisdiction .' However, we were not so lucky with the situationrespecting security of personal property and it is that area whichnow needs attention.

One of the strong points of this edition is that it takes intoaccount many of the Uniform Commercial Code rules in ex-plaining or illuminating our law; one of the book's weaknesses isthat references to the Uniform Commercial Code, when made,only whet the appetite . Dr . Rogers should have gone further,and added more material relating to the UniformCommercial Codeand to this extent could have been less reverent with Dr. Falcon-bridge's scholarship . Hopefully, future editions of this treatise willhave their base broadened to that extent.

Approximately two hundred new cases have been added tothis edition, most of them in Part III which-deals with "NegotiableInstruments" . Many old cases have been eliminated ; for example,the many cases on interest rates have been omitted because the newBank Act eliminated the old six per cent interest ceiling.

There is a brief treatment of the impact of the Canada DepositInsurance Corporation Act' on banking in Canada as well as abrief treatment of safe-keeping, night depositories and safety deposit boxes. One of the mystifying aspects of the new edition isDr . Rogers' decision to eliminate the histories of sections 86, 87,88 and 90 as well as that part of the old edition which dealt withthe various Factors Acts . Accordingly, Dr . Rogers recommendsthat the sixth edition be kept in libraries for possible reference onthese subjects . This is an unsatisfactory way of dealing with a meredozen or so pages of material in the previous edition and shouldbe avoided in the future .

RIAN FLEMMING*

'The Draft Ontario Personal Property Security Act (1966), 44 Can.Bar Rev . 104, at p. 277 .

6 (1967), 30 Vict ., c . 3, s . 91(18) .' S.C ., 1966-67, c . 70, as am.*Brian Flemming, of the Bar of Nova Scotia, Halifax.

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Canadian Law and Practice Relating to Letters Patent for Inven-tions. Fourth Edition . By HAROLD G. Fox . Toronto: The Cars-well Company Limited . 1969. Pp . 835 including Appendices .($65.00)

It is rare, and perhaps unique, for the works of a single legal text-book writer to span a period approaching half a century . Thefourth edition of Fox on Patents appeared in 1969, the first editionhaving appeared in 1926. As if this were not enough, the author inthe meantime published two editions of Fox on Trade Marks andtwo of Fox on Copyright, and has for almost thirty years publishedFox's Patent Cases, an annotated series of reports of all Canadianpatent, trade mark, design and copyright cases, thus covering thewhole field of industrial and intellectual property . Probably anunparalleled achievement by one man in any country in any fieldof law .

The fourth edition of the work on patents appears over twentyyears after the third edition published in 1947 just after WorldWar II . The new edition is a work at once of compression and up-dating . A single volume of 835 pages including appendices re-places two volumes of 1,630 pages . This shortening is achievedpartly by somewhat denser printing, though at no sacrifice oflegibility, partly by omission of some matter of purely historicalinterest to a student of the subject, but for the most part by moresuccinct treatment of many points . The new edition states the lawas at March 1st, 1969 and takes into account all Canadian casesand all the significant United Kingdom cases . It thus deals withnumerous important developments in the law during the last twentyyears . such as those in the areas of the treatment of prior docu-ments in relation to the issue of obviousness, infringement by equi-valents, conflicts, drug patents, compulsory licences and threats .No one who is, to any appreciable extent, professionally concernedwith patents in Canada can afford not to have the new edition inhis library .

The treatment of prior documents in relation to the issue ofobviousness was a matter which was in doubt for many yearsuntil the early 1950's . It had long been settled that on the issue ofnovelty each prior document had to be considered by itself andthat one could not base anticipation on a "mosaic" of prior docu-ments . It was argued that the same rule applied in relation to theissue of obviousness . but the jurisprudence to which the authorrefers has now established that the joint effect of all prior docu-ments is to be considered on that issue . The author and LordSimonds between them' seem to see some absurdity in this differenttreatment of prior documents on the issues of novelty and ob-

' P . 73 .

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viousness. Is there really, however, any absurdity? ®n the issueof novelty, the question is whether the prior art contains what toa person possessing the common general knowledge of the art isa description of the invention claimed. If a single prior documentdoes so, it is an anticipation regardless of how little known it mayhave been (since everyone notionally has knowledge of all priorart) and regardless of how serious or long standing a problem theclaimed invention may have solved . It may be that a number ofprior documents between them disclose all the elements of the in-vention claimed, though it is not disclosed in any single prior docu-ment. One cannot, in these circumstances, say that the inventionlacks novelty on the basis of a composite anticipation or "mosaic"of prior documents, because to do so would be to disregard what-ever intellectual achievement may have been involved in bringingtogether and appropriately relating the pieces of information in thedifferent prior documents. ®n the other hand, it would be illogicalto disregard the fact that these separate pieces of information doexist. Accordingly, one turns to the question of whether or not itwould seem to have been obvious to bring them together and ap-propriately relate them . All sorts of considerations which do notarise on the issue of novelty are relevant on the issue of obvious-ness that is in determining the intellectual achievement involvedin the claimed invention; for example, the extent to which thereare pointers towards relationships in any of the documents, theseriousness of the practical problem solved by the claimed inven-tion, how long the problem had existed, and the practical impactof the claimed invention.

The author's extensive discussion of the question of substanceand equivalents in relation to infringement' is, by comparison withthe third edition, rearranged and somewhat revised as to the importance of the claims . However, in the opinion of this reviewer,the author might well have gone further. There is still a substantialdiscussion of Curtis v. Platt' and Proctor v. Bennis' in which thepatents contained no claims in the modern sense and which in thelast twenty-five years have not been judicially referred to in Eng-land at all and in Canada only once by a provincial court of appealand once by a provincial trial judge.'^ The comparatively recentEnglish decisions in Birmingham v. Collaro,' Van der Lely v.Bamfordss and Rodi v. Showell' are mentioned among the many

'Pp . 351-381 .3 (1863), 3 Ch . D . 135 n. (1866), 1 H.L . 337 .4 (1887), 4 R.P.C. 333 .'A International Pediatric v. Lambert (1965), 34 Fox P.C . 58 ; Saul v.

Canadian Marconi (1968), 38 Fox P.C. 10 .5 [1956] R.P.C . 232 (C.A .) .' [1963] R.P.C . 61 (H.L.) .' [1966] R.P.C . 441 (C.A.), subsequently affirmed by the House of

Lords, [1969] R.P .C . 367 .

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cited authorities and there are quotations from the first two, butthere is no special discussion of them . Each of those cases saysthat the doctrine of infringement in substance or by equivalents(that is infringement by something not within the language of aclaim) is not dead, but none has given effect to it, though in Vander Lely and Rodi the alleged infringers had appropriated the in-ventive substance of the patents, varying the structure in mattersthat, though referred to in the claims, were without significanceto practical operation . Indeed, so far as this reviewer is aware, thedoctrine, though often referred to, has not actually been appliedto hold as an infringement something outside the language of aclaim in any case in Great Britain since 1936 in Rheostatic v.McLarens and has been so applied in Canada since 1934 inDominion v. Electrolier9 only in two judgments of Thorson P. inthe Exchequer Court" and probably also in the judgment of theQuebec Court of Appeal in Rodi v. Metalliflex," though there it isnot perfectly clear whether the court did consider the alleged in-fringement to be outside the language of the claim. The decisionsof the House of Lords in Deere v. Harrison" and of the ExchequerCourt in Omark v. Gouger" are examples of the use of the doctrineof equivalents in relation to terms of indefinite meaning iin claims,for instance "about" and "substantially" .

The position of drug patents in Canada is a sorry one. Withone exception, every drug patent that has come before the courtsin the last thirty years has been held invalid ; in all but one caseon grounds that, however right in strict law, have been concernedessentially with matters of form or matters marginal to the realinvention . The patents struck down have related to important anduseful drugs but have been held invalid because of lack of in-dicated utility of all members of the claimed class exemplified bythe special useful drug, coupled with essentially formal deficienciesin the framing of the claims . Compulsory licences under patentsconcerned with food or medicine had been provided for in thePatent Act since 1923,' 4 but it was not until 1949 that the first suchlicence was applied for. Since then there has been substantial juris-prudence on this aspect of the law which is treated fully by theauthor" in a section which did not exist at all in the third edition.An appendix gives the text of a bill's to amend Section .41 of the

8 (1936), 53 R.P.C . 109.'[19341 S.C.R . 436.1 ° McPhar v. Sharpe (1961), 21 Fox P.C . 1 ; Lovell v. Beavy (1963),

23 Fox P.C. 112.11 (1960), 19 Fox P.C . 49 .12 [19651 R.P.C . 46 .1,1 (1965), 27 Fox P.C. 1.14 S.C ., 1923, c. 23, s. 17(2) .`5Pp. 304-313 .

le It became law on June 27th, 1969 . S.C . . 1969, c. 49 .

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Patent Act by providing, in the case of drugs, for the grant oflicences to import from abroad . Under the Act as amended a drugpatent that escapes or survives an attack in the courts representseffectively no monopoly, and its money-making capability seemslikely to be minimal because the royalties that have so far beenawarded have usually verged on the derisory when considered asa rate on the sale price by the licensee of the finished drug prep-aration.

In dealing with the subject of reissue the author says" that apatent with claims to a broad class of substances cannot be re-issued with claims limited to one or more specific members of theclass. For this he cites as authority an English case" and a Canad-ian case." The former is authority for the proposition in England,but in the Canadian case the reissue application was refused forfailure to establish mistake. The Canadian reissue provision, un-like the English amendment provision, specifically provides as abasis of reissue that the patentee has claimed more than he hada right to claim.

The author has essentially completely rewritten the chapterconcerning threats, to take account of the very marked develop-ment of the jurisprudence since the third edition and particularlyduring the present decade . Without specific threats legislationsuch as has existed in England for over seventy-five years, - we nowhave in Canada a fairly effective curb on at least,recklessly issuedthreats of patent infringement proceedings. -One wonders, however,whether the author may not be attributing too much to the-5` & 5Industries case" when he says :" "The court found that threatsbased on an invalid patent constituted false or misleading state-ments within the meaning of Section 7(a) of the Trade MarksAct." This leaves the suggestion that any threat of action undera patent which later turns out to be invalid would be held to besuch a misleading statement. In the S & S case it seems to havebeen the nature of. the threats and the people to whom and theway in which they were made that were largely responsible for theholding that they were misleading. It does not seem that the lawas laid down in the S & S case would impose liability on a paten-tee for, threatening an infringement action against the source inCanada of the alleged infringement, whether manufacturer or im-porter, even if the patent were later held invalid.

Whatever reservations one may have about the author's treat-ment of some aspect of the subject, the fourth edition of Fox onPatents will, in the years to come, no doubt be as indispensable"P . 339 ."May & Baker v. Ciba (1968), 65 R.P.C. 255 ."Hoechst v. Commissioner (1966), 33 Fox P.C . 99 .su (1966), 33 Fox P.C. 56 ." P . 531 .

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as its predecessors have been throughout the careers of mostreaders of this Review . Its value, and the value of the author'sother works in the field of industrial and intellectual property, canbest be assessed by anyone who is at all involved in this field inCanada trying to imagine life without Fox. The Bench, the Barand all those concerned in the field have reason to be grateful toHarold Fox for his labours of authorship over the past forty yearsand more. These may justly be termed labours of love, since thereturns in terms of hourly rates would no doubt be consideredgrossly unfair by any organized labour.

CHRISTOPHER ROBINSON*

Litigation and Trial of Air Crash Cases. By JOHN J . KENNELLY .Mundelein, Illinois : Callaghan & Company. 1968. Volume 1,pp . 371 ; Volume 2, pp. 524 .1 ($55 .00 U.S.)

This era of exploding technology poses problems for lawyers en-gaged in liability litigation arising out of complex activities in awide variety of fields . In a substantial part of the publication underreview, Mr. Kennelly, a leader in the field of aviation accidentlitigation, shows how it is possible to put before a court in under-standable terms fine points of aeronautical engineering and com-plicated aspects of air navigation . This is no small feat . Today'sjet aircraft contains numerous components and the safety of itsflight depends on many support systems including air navigationfacilities and services outside the aircraft . The task of the plain-tiff's lawyer is to find ways of ferreting out the cause of an aviationaccident and present the case in such a way as will neither insultthe intelligence of the court nor do violence to the basic: technicalconsiderations involved . The defence lawyer will similarly have toensure that the interests of his client are defended in terms that areboth understandable to the court and scientifically valid.

In Chapter I, which is 318 pages long, Mr. Kennelly reviewsthe actual trial of a major air crash case . In this suit,' the plaintiff,the widow of a forty-one year old successful business man wasrepresented by the author; the defendants, the Boeing Companyand Northwest Airlines were represented by experienced aviationcounsel. Mr. Kennelly shows how a difficult case involving airturbulence, the setting of a stabilizer of an aircraft and the read-out of a flight recorder can be presented to a jury in clear terms.

*Christopher Robinson, Q.C ., of the Ontario Bar, Ottawa .The two volumes are in loose-leaf form and include ten chapters with

separate pagination for each chapter.' Hollerich v. The Boeing Company and Northwest Airlines, a jury trialheard before Cook County (Illinois) Circuit Judge P.A . Sorrento . The juryreturned a unanimous verdict and awarded $2,000,000 to the widow .

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In his demonstration, he makes superb use of verbatim transcriptsof statements by counsel, examination of witnesses, closing argu-ments, instructions to the jury and the jury verdict. While theauthor has emphasized that his aim was to ensure understandingof the case by the jury, it is clear that such a presentation, withsome adaptation, could be most helpful to a judge sitting withouta jury. Hence, Chapter I will be read with profit even by the law-yer whose aviation cases are heard by such a judge. Indeed, any-one who has to engage in liability litigation involving matters ofa highly technical nature would find much of use in the chapter,which is made all the more useful by the frequent explanatorycomments of the author .

The next topic considered is private air crash litigation .' Herethe author describes a case embodying typical problems ordinarilyencountered in litigation arising out of accidents to light aircraft .He also devotes considerable space to the not uncommon subjectof collisions between commercial airliners and light aircraft. In thelatter regard, he pleads for adequate insurance arrangements andpoints out that "a private aircraft owner could be liable for aquarter of a billion dollars for a single accident".'

efore an aviation accident case is set down for hearing, muchpreliminary work has to be done. The magnitude of this work isapparent from the author's discussion of modern discovery andpreparation techniques in aviation litigation.'

The examination of questions of venue and jurisdictions isfollowed by a description of pleadings' during which the authorgives the text of a complaint against a carrier airline and a manu-facturer in a commercial aircraft case .A discussion of the much debated question of damages fol-

lows . Mr. Kennelly points out' inconsistencies and absurdities inthe law of damages in the fifty states of the United States (andother countries) and also deals with such topics as conflicts in thelaw of conflict of laws, choice of laws, lex loci deliciti, groupingof contracts and centre of gravity. An appendix to this discussioncontains brief summaries of wrongful death statutes in UnitedStates jurisdictions .

A long survey of international air travel damage limitationsthen follows! The passenger limit varies widely. It is $8,300.00U.S . in the Convention for the Unification of Certain Rules Relating to International Transportation by Air (Warsaw, 1929) ;

a Ch. II, 53 pages.a Ch. 11, p. 47 .' Ch. III, 127 pages.s Ch. IV, 55 pages.'Ch. V, 34 pages.'Ch. VI, 62 pages.'Ch. VII, 118 pages.

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$16,600.00 U.S . in the Protocol to Amend the Warsaw Conven-tion (The Hague, 1955) and $58,000.00 U.S ., exclusive oflegal fees and costs or $75,000.00 U.S ., inclusive of legal fees andcosts, in the Montreal Interim Agreement prepared by internationalairlines in 1966. The revision of the Warsaw Convention and theHague Protocol is under active consideration in international civilaviation circles . At the time of writing, the Legal Committee ofthe International Civil Aviation Organization is scheduled to dis-cuss the matter early in 1970, there having been already a seriesof ICAO meetings on the question since early 1966 . Mr . Kennellysubmits that limitation of liability in the above-mentioned amountsis unjust whether for passengers, airlines, private aircraft ownersand operators, manufacturers and the United States Government .He attacks the constitutionality of the Montreal Interim Agree-ment and has (since the appearance of the publication under re-view) obtained a ruling from an Illinois court that the limitationprovisions of the Warsaw Convention are unconstitutional .' Thispart of the work also contains good coverage of the circumstancesunder which the limitation of liability is lost, that is, wilful mis-conduct of the carrier, non-delivery of the passenger ticket andlack of sufficient notice to the passenger concerning the limitationof liability.

The liability of the United States for aircraft accidents due tothe negligence of its agents is given detailed treatment ." Suchliability arises out of the ever increasing services rendered to airnavigation by governmental authorities and agencies . The Govern-ment could be liable for failure of its employees to warn aircraftcrew of hazardous weather as well as for negligence in the designand construction of an airport. Government liability can also beincurred due to sonic booms or low-flying Government aircraft .

The topic of "Trial or Settlement"" leads to a discussion ofelements of damages, documentary substantiation of damages,typical testimony of an actuary and a business economist, evaluation of damages for loss of estate and the circumstances underwhich a trial is required .

Having recited a chronicle of aviation disasters throughout histwo volumes, Mr. Kennelly then propounds the thesis that "Air-line Safety is Not a Myth"." He gives some striking safety statistics, shows the role of courts and counsel in the promotion of avia-tion safety and states that "the adversary quest for truth resultsin a by-product of fact-finding, sometimes beneficial to airsafety" ." He also concludes with the assertion, in regard to annual

s Burdell v. Canadian Pacific Airlines, Ltd., November 7th, 1968 (Illi-nois Circuit Court, Cook County), 10 Avi. 18, 151 .

lo Ch. VIII, 29 pages.

"Ch. IX, 28 pages."Ch. X, 23 pages.13 Ch. X, p. 19 .

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statistics : "That a few hundred deaths out of over one hundredmillion passengers is an unassailable statistic, especially when com-pared with more than 50,000 persons killed on highways . Cer-tainly, the undisputable statistics are entirely incompatible withany assertion that airplane safety is â myth.""

Lawyers engaged in aviation litigation, whether as counsellorsof claimants, airlines, insurers or manufacturers, will all find thisbook most helpful, written as it is by a master in his chosen field .

GERALD F. FITZGERALD*

The Canadian Yearbook of International Law. Vol. Vl. Edited byC. B . EOURNE and J .-Y. MORIN. Vancouver: The PublicationsCentre of the University of British Columbia . 1968 . Pp . 355 .($12.00)

The 1968 volume of The Canadian Yearbook of International Lawcontains even more - articles of topical interest than is normally the.case. Of these, perhaps the most significant is Dr . Pharand'sanalysis of "Innocent Passage in the Arctic".' He starts from thept6mise that innocent passage is a right by customary law; thatit equals navigation and does not normally include stopping oranchoring rights ; that it extends to warships, which may howeverbe ordered to leave for breach of coastal regulations; and that itapplies to the territorial sea, newly-enclosed waters and to straitsbetween the high seas . As to conventional law, he points out thatthe 1958 Conventions have not been ratified by Canada, while theSoviet Union entered a reservation concerning the right of inno-cent passage for warships . He contends, however, that this reser-vation is so widely expressed as to be invalid since it runs counterto the integral purpose of a conventional right' This argumentassumes that the principle of the Genocide Convention advisoryopinion' is of general application, and ignores Lauterpacht's ar-gument in his separate opinion in the Norwegian Loans case,' thatis, provided one grants the contention that the reservation goes tothe essence of the right.

14 Ibid .*Gerald F. FitzGerald, Montreal, Quebec. Senior Legal Officer, Inter-

national Civil Aviation Organization ; Lecturer, Institute of Air and SpaceLaw, McGill-University . This review was written in a private capacity .

'P . 3.2 P. 39 .1 [19511 I.C .J . Rep. 15 .4 [19571 I.C .J . Rep. 9.

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In the light of his examination of the history and geographyof the region, as well as of Soviet legislative measures, the authorconcludes that the Northeast Passage is available for innocent padsage by all vessels regardless of nationality; that the VilkitskyStraits constitute Soviet territorial waters but are nevertheless sub-ject to innocent passage; that such vessels as United States ice-breakers may be expelled as warships if they violate local regula-tions; that the Soviet claim to exercise its discretion as to the pas-sage of warships is contrary to the Convention, and that the reser-vation of 1958 is invalid.' As to the Northwest Passage, of whichthe geography and history are also examined, he points out that"Canada has developed [this] into a safe maritime route-albeitwith some assistance from the United States . So far, it has beenused by Canada alone and for local traffic only, except for experi-mental crossings made by United States vessels. But with thepresent volume of mining and oil exploration, it is very possiblethat the old Northwest Passage might serve as a valuable commer-cial shipping route to European markets . . . . The waters of theNorthwest Passage are navigable, and they are in fact being navi-gated upon . It is somewhat questionable, however, whether thosewaters are subject to the right of innocent passage in favour offoreign ships" .' He cites as evidence of possible Canadian owner-ship maps, licences, the statement by Minister of the Interior Ste-wart in 1925 that Canada's territory extended to the North Pole,but suggests that this statement really only referred to land. WhileAmbassador Pearson in 1946 referred to Canada's ownership ofthe frozen sea, Prime Minister St . Laurent spoke in 1953 of the"northern lands right up to the Pole", to be followed three yearslater by Minister of Northern Affairs Lesage stating that Canada'ssovereignty only extended to the land and territorial seal and notto any other water, frozen or otherwise.' Doctrinal writings seemalmost equally inconsistent .

All in all, Dr . Pharand is of opinion that if Canada were toclose off the Northwest Passage it would be contrary to inter-national law' and he accepts the view of the Supreme Court in theOffshore Mineral Rights decision of 19679 that the 1958 Conven-tions, though unratified by Canada, constitute the logical startingpoint for any consideration of the modern law of the sea, con-cluding that the Passage is in fact available for innocent passagefor all ships, notwithstanding any reservation that Canada mightmake to the contrary; that any rights of exclusion remaining toCanada apply only in the Prince of Wales Strait and only with

'P . 41 .c Pp. 47, 51 .7Pp. 51-53.'P. 58'[19671 S.C.R . 792.

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regard to warships infringing local regulations; and any regulationsadopted "must not result in a complete prohibition of the innocentpassage of warships although they may go quite far in verifying theinnocence of such passage, in order to insure the security of thecoastal state and guarantee its territorial integrity"." The presentreviewer does not share Dr . Pharand's view concerning reserva-tions, the applicability of an unratified Convention, nor the view, inthe light of the history of the area, that the Passage is in fact opento the shipping of all nations.A paper of similar topical interest to Canada is Mr. Kirkham's

examination of "The International Legal Status of Formosa"."The author accepts the view of those who apply some sections ofwartime Allied Statements, like Potsdam, concerning Germany,but not those of which they do not approve, so be concludes thatFormosa, despite Cairo and Potsdam, has not reverted to China."He also denies any possibility of an Allied condominium and sug-gests that the island became terra nullius when the Japanese PeaceTreaty was signed." In his view, "by international law Formosahas achieved statehood and is accordingly entitled to the rights andsubject to the obligations of a state" ." It is submitted that here Mr.Kirkham completely ignores that in modern international law nostate is entitled to rights as a state until such time as others recog-nize her as such . He likewise bypasses the fact that, while doctrinespeaks of premature and delayed recognition, no state has yet re-covered damages for the latter, and he does not indicate who isthe proper legal authority exercising the rights of statehood. Itgoes a little far to use a decision of a Mixed Arbitral Tribunalconcerning Poland and Germany" to conclude that "the pre-sumption against statehood created by universal non-recognitionis capable of being rebutted"," particularly in the light of DeanAcheson's statement in 1950 that "it was not necessary to waitfor a peace treaty before handing Formosa over to China [and]whatever sort of China was recognized Formosa should be re-garded as part of it", while Mr. Pearson stated in 1955 that Que-moy and Matsu, equally not under Communist control and notdealt with in the Peace Treaty, were considered by Canada as partof the mainland .

The other paper of specifically Canadian content is by Profes-sor Morin who deals with "Les zones de pêche de Terre-Neuveet du Labrador àla lumière de l'évolution du droit international",`

'o P.

60." P. 144 .12 P . 149 ." P. 151 .14 p. 163 .ls [1929-1930) Ann. Dig. 11 (No. 5) .ls P . 162 .17 p . 91 .

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and closely related with this subject is the discussion of "Inter-national Policing of High Seas Fisheries" by two staff members ofthe Food and Agriculture Organization (J . E. Carroz and A. G.Roche) ." Mr. Slonim provides a historical paper on "The Originsof the South West Africa Dispute: The Versailles Peace Confer-ence and the Creation of the Mandates System"," suggesting thatto a great extent much of the controversy relates to conflictingviews of the meaning of Article 22 of the Covenant, with Smutsbelieving as early as 1922 that "in effect the relations betweenthe South-West Protectorate and the Union amount to annexationin all but name".2' The remaining paper is by Professor Turackon "International Regional Organizations and their Travel Docu-ments" . -' Finally, there are the usual notes-Mr . FitzGerald ondevelopments in air law, this time concerning liability and inter-national carriage of passengers ; the second part of Professor Law-ford's survey of Canadian Practice in International Law during1965 and 1966, and a similar survey by Mr. Gotlieb on the prac-tice of 1967 . In addition, Dr . Dalfen has looked at some of therecent proposals concerning reform of the World Court; Profes-sor Poeliu Dai has commented on the significance for Canada ofthe Non-Proliferation Treaty, pointing out that "in the final analy-sis, the fulfilment of international commitments would seem todepend upon the extent to which the vital interests of the majorPowers are affected";` and Dr . Kos-Rebcewicz-Zubr(:)wski hascommented upon some of the decisions concerning state immunityarising out of Expo, and concludes "il faut cependant admettre queles biens de l'Etat destinés au service public devraient être sous-traits à l'exécution forcée" 23

The Yearbook maintains its standard and its interest, helpedupon this occasion by the political topicality of some of its legalsurveys.

L. C . GREEN*

Is P . 61 ."P . 115 .20 P . 143 .21 p, 164 .22 P . 241 .2s P . 251 ."°L. C . Green, of the Department of Political Science, University of

Alberta, Edmonton .