APPLICATION OF CISG: Yes and No. The parties agreed that their contract is governed by Russian substantive laws. Thus, the Tribunal concluded that the CISG would apply. At the same time, the contract provided that other terms of the contract should be determined based on the GAFTA Contract. The parties agreed that this meant the GAFTA Contract 78. Article 25 of the GAFTA Contract 78 excludes the application of the CISG. Thus pursuant to Article 6 CISG, the Tribunal found that the CISG did not apply.
1.1 The contract for international sale of goods stipulates that Russian substantive law is applicable to relationships between the parties. The rest of the terms and conditions of the contract are determined by the provisions of a pro forma contract, which contains a provision concerning exclusion of the application of the Vienna Convention 1980 [UN Convention on Contracts for the International Sale of Goods (1980), hereinafter CISG]. Therefore, it is concluded that the parties used the right given by the CISG to agree to exclude the application of the CISG from their relationships.
1.2 Subject to art. 401(3) of the Russian Civil Code, a force majeure (and not absence of guilt) serves as a basis for exemption from liability for non-performance of contractual obligations in entrepreneurial activity and the burden of proof of circumstances exempting from liability rests on the party referring to such circumstances.
1.3 The Tribunal finds that the clause of the contract providing that one of the circumstances exempting from liability for non-performance of contractual obligations may be impossibility to perform due to decisions by agencies of State administration is inapplicable to the present case taking into account concrete circumstances, which did not exclude performance of the contract within the contractual terms even in such circumstances.
1.4 In their contract, the parties stipulated a basis of delivery with reference to Incoterms 2000. However, the contractually stipulated basis of delivery differs from the corresponding basis of delivery in Incoterms 2000 (extending [Seller]'s obligations). This leads to a conclusion that the parties agreed to use the basis of delivery stipulated in the contract and not the corresponding provisions of Incoterms 2000.
1.5 Several instances of non-compliance with terms of delivery by the [Seller] amount to a fundamental breach giving the [Buyer] the right to declare the contract avoided.
1.6 Since the contract stipulated an option in the quantity of goods, the amount of non-delivered goods is reduced by the amount corresponding to the contractually stipulated option.
1.7 Taking into account the similarity between [Seller]'s claims and [Buyer]'s counterclaims, the Tribunal decided that they are subject to an offset in accordance with art. 410 of the Russian Civil Code.
1.8 To determine the damages, the Tribunal took into account provisions of the Russian Civil Code (art. 520 and 524) referring to a substitute contract concluded instead of the non-performed contract. Further, it is noted, that payment of the difference in the price of the principal contract and the price of the substitute contract made instead [of the principal contract] does not exempt the [Seller] from recovery of the damages incurred by the [Buyer] in accordance with art. 15 of the Russian Civil Code.
1.9 While considering specific claims for recovery of the damages, the Tribunal took into account evidence submitted by the parties concerning the amounts and causation of the damages caused by the breach of the contract.
The action was brought by [Seller], a Belizean organization, against [Buyer], an Austrian organization, in connection with an incomplete payment for the goods delivered on the basis of CPT Ilyichevsk export elevator (Incoterms 2000) under a contract for international sale of goods of 26 December 2002. The [Seller] claimed recovery of the debt and payment of the contractual penalty.
2.1 The [Buyer], who avoided the contract due to repeated breaches of contractual terms of delivery committed by the [Seller], did not acknowledge the action and submitted a counter-action in the amount exceeding the amount of claims of the original action. During the arbitral proceedings, the [Buyer] reduced the amount of the counter-action in accordance with Tribunal's ruling, since it was established, based on [Seller]'s submission, that it includes [Buyer]'s claim out of another contract, which has no relevance to the debt indicated in the original action.
2.2 The [Seller] admitted that avoidance of the contract by the [Buyer] was based on breaches of contractual terms of delivery. At the same time, the [Seller] alleged that the reason for these breaches was the impossibility of performance due to the prohibitions of transporting the goods to the contractually agreed point of destination issued by competent railroad authorities. Therefore, the [Seller] stated, it cannot be held liable for late and incomplete delivery of the goods.
2.3 Neither did the parties agree on whether the [Buyer]'s claim for recovery of the damages and their calculation are well-grounded.
"Differences, contradictions or claims which may arise in connection with performance, violation or termination of the contract shall be referred to the jurisdiction of the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry [hereinafter Tribunal], Moscow. The language of arbitration is Russian"
The Tribunal stated that in the section entitled "Arbitration" in Supplement No. 1 of 26 August 2003 to the contract between the parties of 26 December 2002, the parties agreed that the Russian substantive law is the law applicable to their contract.
By virtue of art. 15 of the Russian Constitution and art. 7 of the Russian Civil Code, international treaties of the Russian Federation are a component part of its legal system. The Russian Federation is a State party to the CISG. At the same time, the Tribunal found that the section entitled "Other terms and conditions" of the contract of 26 December 2002 contains a provision that: "all other terms and conditions under the present contract shall be determined on the basis of relevant Contract GAFTA [the Grain and Feed Trade Association], provided it does not contradict the provisions [of this contract], which the parties are aware of and agree to."
Keeping in mind that there is no disagreement between parties that Contract GAFTA 78 "Contract for delivery of goods to be shipped by railroad in bulk" (pro forma contract of the Grain and Feed Trade Association) shall be considered as the relevant Contract GAFTA, the Tribunal finds that to the relations of the parties not expressly settled by the contract of 26 December 2002 shall be applied provisions of Contract GAFTA 78, provided they do not contradict the provisions of the contract of 26 December 2002.
Art. 25 of Contract GAFTA 78 provides, among other things, that: "the provisions of the CISG shall not be applied to this contract." In accordance with art. 6 CISG, parties to a contract may exclude the application of this convention. Hence, by virtue of the parties' agreement, the Russian Civil Code shall be applied to the contract of 26 December 2002, and the application of the CISG shall be excluded.
3.3 It was established that, according to provisions of the contract of 26 December 2002 (hereinafter the Contract), the [Seller] undertook an obligation to deliver a specific amount of goods with an option in the quantity of 5 per cent at a price per metric ton indicated in the contract on the basis of CPT (Incoterms 2000) Ilyichevsk export elevator by 5 February 2003 (inclusively) with 100% payment for the delivery of a consignment of goods (each consignment being no less than 500 metric tons) within three bank days against the contractually agreed documents, and in particular documents confirming that the goods arrived at the Ilyichevsk export elevator. Subsequently, in etters of 31 January and 26 February 2003 the [Buyer] agreed to extend the terms of delivery under the contracts up to 19 February and 7 March correspondingly.
The facts of [Seller]'s deliveries of the amounts of goods indicated in the statement of action and non-payment for these amounts by the [Buyer] are confirmed by the materials of the case and are not contested by the [Buyer]. Yet, the [Buyer] explains its refusal to pay by [Seller]'s non-delivery of the outstanding amount of the goods (6,530 metric tons), whereby the [Buyer] incurred damages in an amount exceeding the amount of non-payment. The [Buyer] considers that the [Seller] must be held responsible for these damages. Demanding recovery of the debt, the [Seller] denies its liability for partial non-performance of the contract and objects to the offset and granting of [Buyer]'s counterclaims.
"Neither of the parties to the present contract shall be held liable for non-performance or late performance of the contract, if it was caused by a force majeure, such as: a strike, a lockout, fires, insurrections, wars, civil wars, railway accident, decisions by State bodies, etc."
Therefore, in accordance with both the law and the contract between the parties, it was the [Seller], who did not perform its obligation to deliver the goods, on whom rested the burden of proof that non-performance of contractual obligation was caused not merely by the absence of its fault but also by the existence of a force majeure.
In this connection, the [Seller] refers to the fact that the competent authorities imposed restrictions on transporting the goods to Ilyichevsk port in accordance with art. 3 of the Agreement of International Goods Transport by Railway [hereinafter AIGTR], which did not allow the [Seller] to deliver the goods. Particularly, a telegram by the Russian Ministry of Transport and Communications of 14 January 2003 stated that due to a notification from the indicated railway authorities starting from 15 January it was prohibited to transport the goods under the present contract with Ilyichevsk station as the point of destination and, more specifically, to the address of a concrete terminal because of "an increasing number of wagons expecting to be unloaded." This prohibition was cancelled on 25 January 2003. Another prohibition [�] was introduced by a telegram of the Russian Ministry of Transport and Communications of 27 February 2003 starting from 1 March to its cancellation "because of the unfavorable loading/unloading conditions and absence of the fleet." In [Seller]'s opinion, this should be regarded as "decisions by state bodies", i.e., as force majeure circumstances excluding [Seller]'s liability.
The [Buyer], in its turn, states that the said documents cannot be regarded as force majeure circumstances because the issue of such documents from time to time could have been foreseen by the supplier making agreements with the railroad; the supplier could have delivered the goods by another means of transportation or else could have purchased them in Ukraine, and not in Russia, etc.
Yet, the Tribunal finds it possible not to discuss the question of whether said telegrams are to be qualified as force majeure in the sense of art. 401 of the Russian Civil Code, since in any case they did not make it impossible for the [Seller] to perform its contractual obligations to the [Buyer]. Taking into account the terms of delivery fixed in the contract, the [Seller] had an opportunity to deliver the goods in the period starting from the moment of conclusion of the contract, i.e., 26 December 2002, up to 15 January 2003, and in the period starting from 26 January up to 1 March 2003, even keeping in mind the relevant rules the [Seller] refers to, according to which the [Seller] had to make an application for railway wagons 15 days prior to loading and transportation of the goods.
3.5 As an additional argument, the [Seller] refers to the fact that the delay in delivery was because the [Buyer] failed to provide to the [Seller] confirmations by the Ilyichevsk sea port of its readiness to accept the goods. Without such confirmations, the railroad refused to accept the goods for transportation.
In the light of the provisions of the contract and circumstances of the case as established in the materials of the case, such an argument is considered groundless.
Although the price of the contract is determined "on the basis of CPT Ilyichevsk export elevator (Incoterms 2000)", [Seller]'s obligations were extended de facto, turning the contract from a contract of shipment into a contract of delivery. According to Incoterms , on the basis of CPT, [Seller]'s obligations are reduced to conclusion of a contract of carriage to a specified place and handing over the goods to the carrier. However, in accordance with the contract "the date of delivery shall be the date of acceptance of the goods by the Ilyichevsk export elevator", and the payment for the goods is effected against "an official report concerning arrival and acceptance of the goods" by the elevator and so on.
In such circumstances, the [Seller] was obliged not only to obtain permissions and fulfill other formalities necessary for the export of goods (as provided for in Incoterms 2000); but also to undertake any other measures in order to deliver the goods to the Ilyichevsk export elevator. Such necessary measures the [Seller] had to undertake itself or through its partners in order to secure the delivery of the goods to the elevator up to the deadline stipulated in the contract. The [Seller] failed to submit the evidence of the fact that starting from the moment of conclusion of the contract onwards it informed the [Buyer] that it was not able to undertake the necessary measures either itself or through its partners. The materials of the case testify to the fact that the [Buyer] duly responded when addressed by the [Seller].
There is nothing in the materials of the case to support [Seller]'s statement that the absence of the confirmation that the Ilyichevsk seaport was ready to accept the goods from the stations of departure constituted a valid reason for non-delivery of the goods. After the [Buyer] received on 17 February 2003 a fax from the [Seller] in which it was stated that the [Seller] received a refusal from the Ukrainian railroad to transport the goods in February 2003 "due to the refusal of Ilyichevsk seaport to accept the goods in the amount of 5,242 metric tons (77 wagons) from a specific station of departure", the [Buyer] immediately contacted the port's administration, and a permissive telegram was sent on the same day ([Buyer]'s fax of 17 February 2003 and a telegram by the port of the same date). As soon as the [Seller] sent a message of 28 February 2003 that it lacked such a permissive telegram for another station of departure, such a telegram was sent to the [Seller] on the same day (port's telegram of 28 February 2003).
3.6 As for the [Buyer], it did give consent to [Seller]'s requests to extend the terms of delivery of the goods, though, in its correspondence with the [Seller], the [Buyer] indicated that because of the delay in delivery it suffers significant losses, including expenses of hiring a ship. The [Buyer] informed the [Seller], among other things, of property claims by its Korean buyer, who was the ultimate recipient of the goods. Also, the [Buyer] informed the [Seller] that it retains the right to claim recovery of its losses, which the [Seller] did not contest.
"If, because of the debtor's delay, the performance [of the contract] has lost all interest for the creditor, it shall have the right to refuse to accept the performance and to claim the compensation of the involved losses."
According to art. 520 of the Russian Civil Code, if the seller repeatedly violates the terms of delivery under the contract of delivery (which is the case in the present dispute), these violations shall amount to a fundamental breach of the contract entitling the buyer avoid the contract. [Translator's note: Violations of the "buyer" are referred to in the text of the opinion; however, this appears to have been a typographical error, with violations of the "seller" intended.] The [Seller] did not contest [Buyer]'s right to avoid the contract.
3.7 In such circumstances, the Tribunal concludes that the [Seller] is liable for non-performance of its contractual obligations, that is, for non-delivery of 6,030 metric tons. However, the Tribunal finds that the [Seller] is right when it says that, in accordance with the contract, its option as to the quantity of the goods to be delivered was fixed at 5 per cent and that while calculating the amount of non-delivered goods, the Tribunal shall regard 9,500 metric tons as the amount of goods which the [Seller] had to deliver to the [Buyer], and that, therefore, the quantity of non-delivered goods amounted to 6,030 metric tons.
- Pursuant to art. 15 and art. 393 of the Russian Civil Code, a seller's non-performance of its contractual obligations entitles a buyer to demand recovery of losses inflicted upon it by the non-performance in question.
- [Buyer]'s counterclaims for recovery of losses inflicted upon it by [Seller]'s violation of its contractual obligation are of pecuniary nature, as well as [Seller]'s claim for payment of the goods delivered to the [Buyer] under the contract. The parties' claims and counterclaims are of the similar pecuniary nature and, therefore, are subject to an offset by virtue of art. 410 of the Russian Civil Code.
3.9.1 The materials of the case, and in particular the contract with a Hungarian organization of 4 March 2004, an invoice of the said organization and a corresponding bank certificate of 2 April 2004, which confirms the payment [of the invoice], prove the fact of [Buyer]'s purchase of the goods on the basis of FOB Constana, Romania, in the amount of 8,000 metric tons at a price higher than that of the contract between the [Seller] and the [Buyer]. With all the circumstances duly taken account of, including the terms of performance of this transaction, its object and the amount, the Tribunal found that this substitute contract was concluded instead of the contract partially non-performed by the [Seller] in the sense of art. 520(1) and art. 524(1) of the Russian Civil Code.
Consequently, the Tribunal finds it just and fair that the [Buyer] is entitled to recover from the [Seller] the losses inflicted upon it by the difference between the price of the non-delivered goods and the price of the goods delivered to it under the substitute transaction with the Hungarian organization. Also, the Tribunal regards as well-founded [Buyer]'s calculation of the amount of claim including transshipment expenses at Ilyichevsk port, fumigation and inspection of the goods, which would have been added to the price of the contract if the goods had been delivered from Ilyichevsk on the same terms of delivery FOB, on which the goods were delivered from Constana. Thus, the sum of the claim calculated by the [Buyer] is subject to an offset of [Buyer]'s obligation to pay for the goods.
It follows from art. 524 of the Russian Civil Code that, if the seller satisfies buyer's claim to recover the losses inflicted upon the buyer by the difference between the price of the original contract and the price of an agreement concluded instead of the original contract, it does not mean that the seller is released from the recovery of other losses inflicted upon the buyer, in accordance with art. 15 of the Russian Civil Code. Therefore, the [Buyer] is entitled to claim from the [Seller] the recovery of other losses.
3.9.2 Further, the Tribunal finds that the [Buyer] is entitled to the recovery of the expenses for the hire of vessel in connection with the necessity for the vessel to enter the port of Constana to load the goods under the substitute contract made instead [of the original contract], including payment of hire for the period of time needed for entering the port, other hire-related expenses (bunkerage, and representation expenses), the cost of hirer's liability insurance, as well as port duties and other expenses at the port of Constana suffered by the [Buyer] within a corresponding period of time.
The Tribunal's reasoning is based on the fact that the ship, sailing under Turkish flag of, [which was intended to be] used for the delivery of the goods purchased from the [Seller], was chartered on the basis of an agreement of time-charter of 21 February 2003, and that clause 4 of the said charter agreement fixes freight charges. In accordance with clauses 2 and 10 of the said time-charter, the charterer had to provide and pay for the fuel (excluding engine oil), port charges, pilotage, towage, agent' charges, commissions, consular fees (excluding those related to individual crew-members and the flag of the vessel) and all other usual expenses not covered by the owner of the vessel as stipulated in clause 1 of the time-charter agreement, as well as monthly representation expenses in the amount stipulated in the time-charter agreement.
The Tribunal found that, according to the captain's report and the Standard Statement of Facts of 15 March 2003 signed in Constana by the captain of the vessel and by the agent, the vessel exited the port of Ilyichevsk on 11 March 2003 at 1:00 pm and left the port of Constana on 15 March 2003 at 8:05 pm, spending on entering the port of Constana to accept the cargo under the contract with the Hungarian company 103 hours 5 min.(103.08 hrs) and not 103 hours 45 min.(103.75 hrs) as the [Buyer] alleged. Thus, to calculate [Buyer]'s expenses in connection with the necessity for the vessel to enter the port of Constana, the Tribunal will use this amount of time.
[Seller]'s argument that the entering of the vessel into the port of Constana was connected with other contracts of the [Buyer] and was planned well in advance cannot be taken into account since the Tribunal considers it unfounded. In the mentioned Standard Statement of Facts of 15 2003 it is indicated that, in accordance with the bill of lading data, goods in the amount of 8,000 metric tons were loaded onto the vessel. The materials of the case (payment documents and bank statements presented by the [Buyer]) confirm the fact that the [Buyer] paid an indicated sum for the charter in full compliance with terms and conditions of the time-charter and for other expenses related to the charter of the vessel (bunkerage, representation expenses) for the period of time starting from 28 February 2003 to 15 March 2003 .
The said sum for the period of entering of the vessel into the port of Constana shall cover the freight charges determined by the Tribunal.
Having considered [Buyer]'s calculation of the cost of the bunker during the period of entering of the vessel into the port of Constana, the Tribunal found it correct and corresponding to the materials of the case.
As for the representation expenses, the Tribunal determined the sum corresponding to the period mentioned above in accordance with clause 10 of the time-charter.
Further, the Tribunal states that the [Buyer] submitted evidence of its payment of port charges, pilotage, towage, agent's charges and other expenses related to the vessel at the port of Constana. Such evidence are, in particular, the disbursement invoice of the agents at the port of Constana of 24 March 2003, as well as corresponding payment orders and bank statements confirming the payment.
Besides, the Tribunal regards as well-founded [Buyer]'s claim for recovery of the cost of the insurance of charter's liability for the corresponding period of time. The materials of the case confirm the fact of payment by the [Buyer] of the insurance premium to the insurance company in the specified amount for the period starting from 28 February to 13 April 2003.
Therefore, the Tribunal finds that the total sum of expenses suffered by the [Buyer] for hire of the vessel "FATMA ANA" in connection with the necessity for the vessel to enter the port of Constana amounts to the sum determined by the Tribunal.
The Tribunal regards the mentioned counterclaims by the [Buyer] as well-grounded and rules that they are granted, though the sum is adjusted (9,500 - 3,470 = 6,030) since the [Seller], as was indicated above, had the option to deliver 9,500 metric tons (that is, 5 per cent less than the initial amount of 10,000 metric tons).
3.9.3 Also, the Tribunal found well-grounded and subject to an offset the claim of the [Buyer] for recovery of its expenses for payment for waste tonnage of the Ilyichevsk export elevator in January and February 2003 at the rate confirmed by the materials of the case, and namely by invoices of 8 May 2003 issued by the operators providing service to the goods arriving to the elevator for further transportation over-seas. This claim was based on the fact that the [Buyer] did not make use of the relevant services and elevator capacities which were reserved for the [Buyer] in January and February 2003. The invoices for these two months were issued for a bigger amount of grain, yet the [Buyer] calculated its claim for 10,000 metric tons. Still, the Tribunal agrees with [Seller]'s objections that the mentioned expenses suffered by the [Buyer] are subject to recovery only in proportion to the amount of goods not delivered by the [Seller]. Therefore, the Tribunal grants the said claim of the [Buyer] with the corresponding adjusting.
3.9.4 As for [Buyer]'s claim for recovery of the penalties it paid in connection with its own violation of contractual obligations to deliver the goods to its client in South Korea (the goods were intended to be purchased from the [Seller] to be later sold by the [Buyer] to a Korean company), the Tribunal finds that the [Buyer] failed to submit any convincing evidence as to the basis for and amount of the losses which are supposed by the [Buyer] to be imposed on the [Seller]. The amicable agreement between the [Buyer] and the Korean buyer referred to 49,875 metric tons of the goods and stipulated payment of a specified sum by the [Buyer]. By dividing these two amounts and multiplying the result by the amount of goods not delivered by the [Seller], the [Buyer] calculated the sum indicated in the counter-action. Bearing in mind the absence of information concerning specific circumstances, the Tribunal cannot agree to the calculation method suggested by the [Buyer].
Here, the Tribunal takes into consideration that the Offer Sheet of 21 August 2002 of the company acting as a broker in relations between the [Buyer] and its Korean partner contains no provisions as to the possibility of imposing upon the [Buyer], as the supplier, of a penalty or any other sanctions for violating the obligation to deliver. Besides, the short delivery by the [Seller] of the goods under the contract in the amount of 6,030 metric tons was, as is understood, compensated by the [Buyer] by a substitute purchase of the goods from the Hungarian company. The expenses of the said purchase were submitted in the present case by the [Buyer] as the losses to be recovered from the [Seller]. All circumstances considered, [Buyer]'s claim for recovery of these losses is to be declined.
3.10 As for [Seller]'s claims from the original action, the Tribunal takes into account that the [Buyer] in its statement of defense does not contest [Seller]'s claim in relation to the price of the goods which were not paid for. Also, the [Buyer] acknowledges the penalties, though in a lesser amount, that is only to 24 April 2003 on which date it brought a counter-action with the amount indicated therein exceeding the amount of [Seller]'s claims.
In the Tribunal's opinion, the amount of [Seller]'s claims is partially offset by [Buyer]'s counterclaims, that is, in the amount determined by the Tribunal. In other words, in accordance with their contract of 26 December 2002, the [Buyer] still has an obligation to pay to the [Seller] the difference between the sums due to the [Seller] from the [Buyer].
Apart from that, in satisfaction of [Seller]'s claims, the [Buyer] is obliged to pay to the [Seller] the contractually agreed penalty at the rate of 0.05 per cent per day on the sum of the price not paid for the delivered goods for the period starting from 25 April (one day after the corresponding application for an offset was made) to 29 September 2003 (the date until which the [Seller] calculated its penalty claim), that is, for 159 days in total.
Based on section 9 of the Rules of Arbitration Expenses and Fees and taking into account all circumstances of the present case, the Tribunal ruled that each of the parties shall bear the costs of paying the corresponding arbitration fee.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of Belize is referred to as [Seller] and Respondent of Austria is referred to as [Buyer].


text:
The ostensible purpose of licensing schemes is usually to ensure that the task of informing the public is reserved for competent persons of high moral integrity. In practice, however, the power to distribute licences can become a political tool, used to prevent critical or independent journalists from publishing. For this reason, and simply because the right to express oneself through the mass media belongs to everyone, irrespective of qualifications or moral standing, licensing schemes for media workers are considered to be in breach of the right to freedom of expression.
An important source of legal authority on the subject of licensing schemes is an opinion of the Inter-American Court of Human Rights rendered in 1985. It was recognised in the case that licensing was a restriction on freedom of expression. Costa Rica and its supporters argued that a requirement for journalists to become members of a colegio (association) was legitimate for three different reasons: first, because it was necessary for public order and the ‘normal’ way to regulate the profession in many countries; second, because it sought to promote higher professional and ethical standards, which would benefit society at large and ensure the right of the public to receive full and truthful information; and third, because the licensing scheme would guarantee the independence of journalists in relation to their employers.
Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard … It is … in the interest of the democratic public order … that the right of each individual to express himself freely and that of society as a whole to receive information be scrupulously respected.
The Court found that licensing, by restricting access to the journalistic profession, was therefore harmful to, rather than supportive of, public order.
Responding to the argument that a licensing regime is simply the ‘normal’ way to regulate certain professions, the Court distinguished between journalism and, for example, the practice of law or medicine. In contrast to lawyers and physicians, the activities of journalists – the seeking, receiving and imparting of information and ideas – are specifically protected as a human right, namely the right to freedom of expression.
[G]eneral welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare … A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right to information that this same society has.
Turning, finally, to the argument that a licensing scheme would strengthen the profession and thereby help protect media workers against their employers, the Court found that this goal could be accomplished through less intrusive means, without the need to restrict the practice of journalism to a limited group. As such, the licensing scheme failed to meet the necessity test.
Having rejected the three principal arguments for permitting a licensing scheme for individual journalists, the Court concluded, unanimously, that such schemes constitute a violation of the right to freedom of expression.
Other courts, national as well as international, have taken a similar point of view. For example, in August 1997, the High Court of Zambia invalidated an attempt to establish a statutory body to regulate journalists, stating that any effort to license journalists would breach the right to freedom of expression, regardless of the form that effort took.
Individual journalists should not be required to be licensed or to register.
It is thus clear that, under international law, licensing and even registration of media workers is prohibited. In practice, licensing schemes for journalists are virtually unheard of in established democracies.
Other entry requirements on the exercise of professions in the media, such as a requirement to have attained a certain age, to possess particular academic qualifications, or to have a clean criminal record, are imposed in some countries. Entry requirements are distinct from licensing schemes, insofar as they do not involve an official body making a case-by-case decision about who may and who may not practise journalism. Nevertheless, entry requirements are inconsistent with international law for the same reasons: they fail to recognise that the right to express oneself through the mass media belongs to everyone, not only persons who the government considers particularly qualified or suitable. They also deprive the general public of the right to receive information and ideas from diverse sources of their own choice.
Furthermore, the practical effectiveness of entry requirements as a means of ensuring quality journalism is questionable. They may prevent talented young people who have not yet reached the age threshold from developing their research and writing skills, or drive out competent journalists with no degree in favour of unskilled academics.
Every person has the right to communicate his/her views by any means and in any form. Compulsory membership or the requirement of a university degree for the practice of journalism constitute unlawful restrictions of freedom of expression.
There should be no legal restrictions on who may practise journalism.
In a small number of countries, the law provides for the possibility of temporarily, or even permanently, stripping an individual of the right to practise journalism or other media professions. If this power is exercised by the government, it is equivalent in effect to a licensing scheme, and therefore similarly impermissible. More often, however, the power is exercised by courts as a sanction in criminal proceedings.
International courts have rarely addressed the question of whether an embargo on a journalist, imposed as a criminal sanction, can ever be a justifiable restriction on freedom of expression. The case of De Becker v. Belgium, decided by the European Commission of Human Rights, suggests that a penalty of this type may only be applied in highly exceptional circumstances, if ever.
De Becker, a Belgian journalist and writer, had been sentenced to death for collaborating with the German authorities during the Second World War. The sentence was commuted and de Becker was released, but he was prohibited for life from participating in the publication of a newspaper. The Commission ruled that Belgium had breached the right to freedom of expression, because the ban was imposed inflexibly, without any provision for its relaxation at a later time when public morals and public order would have been re-established. It was therefore not “necessary in a democratic society”, as required by the three-part test for restrictions on freedom of expression.
Although the Commission did not rule out the possibility of prohibiting an individual from publishing, it clearly attached importance to the extreme circumstances of that particular case – Belgium was just emerging from five years of war and enemy occupation, during which De Becker had committed treason – and felt the ban should be discontinued as soon as a degree of normalcy had been re-established. In today’s more peaceful world, it is highly unlikely that an international court would uphold a ban on practising as a journalist, particularly for less serious offences such as libel or tax evasion. It should therefore be presumed that prohibiting journalists from publishing violates international law.
The right to freedom of association is subject to similar restrictions as the right to freedom of expression. Any interference with the right, therefore, has to pass the strict three-part test. A government policy which prohibits the establishment of independent journalists’ organisations will virtually always fail to pass muster under this test.
Journalists’ associations may play a useful role in improving the working conditions of media professionals. They can also help their members raise professional and ethical standards, for example by organising training and developing voluntary codes of conduct.
States usually impose some limits on the right of journalists to gather information, such as a prohibition to enter sensitive military or civilian installations, or to attend certain court hearings. Like all restrictions on freedom of expression, restrictions on newsgathering must comply with the three-part test: they must be provided by law, serve a legitimate aim, and be necessary for the accomplishment of that aim.
A common source of conflict in respect of newsgathering is the right of journalists to gain physical access to government buildings. On the one hand, the media must be permitted to attend meetings of parliament and other public bodies, so that they can report accurately on political developments and perform their vital role of public watchdog. On the other hand, some buildings may simply lack the capacity to accommodate every interested journalist, or there may be legitimate concerns that a large media presence would get in the way of effective government.
To prevent overcrowding in the press gallery, large institutions such as the national parliament often regulate access through an accreditation scheme. Usually, this means that journalists can apply for a press card, which must be produced upon entry on days when the audience exceeds the number of seats available. Smaller bodies either rely on the same system, or impose restrictions on a case-by-case basis. Holders of press cards are sometimes granted certain privileges, such as access to communication facilities and front row seats. In the United Kingdom, for example, so-called ‘Lobby Correspondents’ have access to a full office, with a computer and Internet access.
While accreditation schemes can be genuinely necessary, they are also a common source of abuse. Governments often refuse to grant press cards to critical journalists, or require possession of such cards in situations where there are no authentic space or other constraints. To address these problems, various international bodies have developed standards which States’ accreditation schemes must meet.
Accreditation schemes for journalists are appropriate only where necessary to provide them with privileged access to certain places and/or events; such schemes should be overseen by an independent body and accreditation decisions should be taken pursuant to a fair and transparent process, based on clear and non-discriminatory criteria published in advance.
Accreditation should never be subject to withdrawal based only on the content of an individual journalist’s work.
Recalling that the legitimate pursuit of journalists’ professional activity will neither render them liable to expulsion nor otherwise penalize them, [member States] will refrain from taking restrictive measures such as withdrawing a journalist’s accreditation or expelling him because of the content of the reporting of the journalist or of his information media.
not permit accreditation to be withdrawn based on the work of the journalist or media outlet concerned.
The media depend to a large extent on members of the public for the supply of information of public interest. Most of the time, these sources are more than happy to be quoted in the newspaper or on the television. But occasionally, citizens come forward with information of a secret or highly sensitive nature – relating for example to corruption, misgovernment or the activities of organised criminals – which they believe should be made known to the general public, to expose wrongdoing or to stimulate public debate on the subject. When this happens, anonymity is often a precondition for the source’s willingness to speak, out of fear for retaliation if his or her name were made public.
It may be noted that although it is normally journalists who claim the right, it is really the right of everyone to receive information and ideas that is being protected. Indeed, this is at the heart of the right.
Protection of journalistic sources is one of the basic conditions for press freedom…. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.
[J]ournalists … are free to seek access to and maintain contacts with, public and private sources of information and that their need for professional confidentiality is respected.
In sum, the basic principle that journalists have a right to protect their sources is well-established in international law. Often, legislation falls short of international standards in this area, because it is either too narrow in its understanding of who is a “journalist” or too broad in its definition of exceptions to the right.
The right to preserve the confidentiality of sources is usually referred to, both in international and domestic law, as a right of journalists. Nevertheless, it can sometimes be validly invoked by persons who would not normally identify themselves, or be identified by the general public, as journalists.
As the ruling in the Goodwin case (discussed above) illustrates, the purpose of the right is to ensure that sources are not deterred from conveying important information to the public through a ‘middleman’. It is the middleman who is entitled to invoke the right to protect his or her sources. In most cases, this role is played by a ‘traditional’ journalist in the service of a mass media outlet; but there is no reason to apply a different rule when the middleman is someone else whose profession involves collecting and disseminating information, such as an NGO activist or academic commentator.
Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.
The term “journalist” means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication.
By contrast, domestic laws sometimes adopt a more limited definition, covering only ‘traditional’ journalists. Such narrow definitions are at odds with international law, because of their potential to constrict the flow of important information to the public.
In other words, the right to withhold a source’s identity belongs not only to the ‘middleman,’ but also to others collaborating with him or her. This purpose of this rule is, of course, to prevent the protection of sources from being simply side-stepped by going around the ‘middleman’.
Like the right to freedom of expression it is derived from, the right to maintain confidentiality of sources is not an absolute one: in certain narrowly defined circumstances, it may be subject to some limitations. As always, such restrictions must be justifiable under the three-part test.
Principles 3-5 of the 2000 CoE Recommendation elaborate extensively on the application of the three-part test to the protection of sources, in particular the necessity-leg of the test. The 2002 Declaration of Principles on Freedom of Expression in Africa echoes the main points of the CoE Recommendation.
A journalist should only be ordered to disclose the identity of a source if there is an overriding requirement in the public interest, and the circumstances are of a vital nature. The CoE Recommendation states that this could be the case only if disclosure was necessary to protect human life, to prevent major crime or for the defence of a person accused of having committed a major crime.
The interest in disclosure should always be balanced against the harm of ordering disclosure to freedom of expression.
Disclosure should only be ordered at the request of an individual or body with a direct, legitimate interest, and who has demonstrably exhausted all reasonable alternative measures to protect that interest.
The power to order disclosure of a source’s identity should be exercised exclusively by courts of law.
Courts should never order disclosure of a source’s identity in the context of a defamation case.
The extent of a disclosure should be limited as far as possible, for example just being provided to the persons seeking disclosure instead of general public.
Any sanctions against a journalist who refuses to disclose the identity of a source should only be applied by an impartial court after a fair trial, and should be subject to appeal to a higher court.
In some cases … the more important the interest violated, the more important it will be to protect the sources. … It must be assumed that a broad protection of sources will lead to more revelations of hidden matters than if the protection is limited or not given at all.
International law increasingly recognises that information collected or created for journalistic purposes enjoys a special degree of protection from search and seizure by the authorities. There are various justifications for according journalists stronger immunity against search and seizure than others.
The authority to the police officers under the warrants issued in this case, broadly to seize “obscene . . . publications,” poses problems not raised by the warrants to seize “gambling implements” and “all intoxicating liquors” … the use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications.
Legal proceedings directed towards the seizure of the working papers of an individual journalist, or the premises of the newspaper or television programme publishing his or her reports, or the threat of such proceedings, tend to inhibit discussion. When a genuine investigation into possible corrupt or reprehensible activities by a public authority is being investigated by the media, compelling evidence is normally needed to demonstrate that the public interest would be served by such proceedings. Otherwise, to the public disadvantage, legitimate inquiry and discussion, and ‘the safety valve of effective investigative journalism’ … would be discouraged, perhaps stifled (reference omitted).
Search warrants may only be issued by a judge, who must balance the importance of the search against the importance of preventing harm to the right to gather news.
No warrants may be issued if the same goal can be achieved in a way less detrimental to freedom of expression.
No warrants may be issued for the seizure of material covered by the protection of sources, except in very exceptional circumstances.
The police must be accompanied on their search by a judge or prosecutor.
Searches of the premises of a press or broadcasting company may be conducted only by a judge or a State prosecutor, who must ensure that the investigations do not endanger the free exercise of the profession of journalism and do not obstruct or cause an unjustified delay to the distribution of information.
The key point is that searches and seizures of journalistic material and premises are, in almost all cases, an interference with the right to freedom of expression. As such, they may only be conducted in accordance with the three-part test.
Physical threats and attacks against media workers aimed at ‘shutting them up’ are arguably the most egregious interference with the right to freedom of expression possible. When attacks occur, they are usually ostensibly committed by private persons; the government’s involvement ranges from none at all to tacit approval to active instigation. A government which consents to media workers being attacked is clearly in breach not only of the right to freedom of expression, but also of the right to liberty and security of the person, and even to life. But the duty imposed on States under international law goes further: media workers must be actively protected, and threats and attacks against them must be investigated carefully.
States are under not only a so-called ‘negative obligation’ to refrain from violating human rights but also a ‘positive obligation’ to ensure enjoyment of those rights. Article 2 of the ICCPR, for example, requires States to “adopt such legislative or other measures as may be necessary to give effect to the rights recognised by the Covenant.” Several international courts and bodies have confirmed that this entails a duty to offer sufficient protection from violent attacks to citizens in general, and media workers in particular.
1. Attacks such as the murder, kidnapping, intimidation of and threats to media practitioners and others exercising their right to freedom of expression, as well as the material destruction of communications facilities, undermines independent journalism, freedom of expression and the free flow of information to the public.
Take adequate measures to end the climate of impunity and such measures should include devoting sufficient resources and attention to preventing attacks on journalists and others exercising their right to freedom of expression ….
 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 November 1985, Series A. No. 5, available online in English at http://www.corteidh.or.cr/serieapdf_ing/seriea_05_ing.pdf.
 Kasoma v. Attorney General, 22 August 1997, 95/HP/29/59.
 Joint Declaration of 18 December 2003. To access this document, see the link in note 30.
 Inter-American Declaration of Principles on Freedom of Expression, approved by the Inter-American Commission on Human Rights during its 108th regular session, 19 October 2000, available online in English at http://www.cidh.oas.org/declaration.htm.
 De Becker v. Belgium, 8 January 1960, Application No. 214/56 (European Commission on Human Rights).
 The Commission no longer exists but it used to act as the initial complaints body within the ECHR system for protecting human rights.
 Kaneko v. Japan, 23 Keishu 1490, SC (Grand Bench), 26 Nov. 1969 (translated in H. Itoh & L. Beer, The Constitutional Case Law of Japan (1978), 248).
 Gauthier v. Canada, 7 April 1999, Communication No. 633/1995, UN Doc. CCPR/C/65/D/633/1995, para. 13.6.
 Conference for Security and Co-operation in Europe, Follow-up Meeting 1986-1989, Vienna, 4 November 1986 to 19 January 1989, Concluding Document, para. 39.
 Goodwin v. the United Kingdom, 27 March 1996, Application No. 17488/90 (European Court of Human Rights), available through the link in note 23.
 Report No. A3-0434/93, published 18 January 1994, OJ C 44, p. 34.
 Recommendation No. R (2000)7 of the Committee of Ministers to Member States on the right of journalists not to disclose their sources of information, adopted 8 March 2000. To access this document, see the link at note 26.
 Inter-American Declaration of Principles on Freedom of Expression, Principle 8; see note 76.
 See note 29, Principle XV.
 Conference for Security and Co-operation in Europe, Follow-up Meeting 1986-1989, Vienna, 4 November 1986 to 19 January 1989, Concluding Document, para. 40.
 Declaration of Principles on Freedom of Expression in Africa, note 29 above, Principle XV.
 As quoted in the Explanatory Memorandum, note 90, paras. 37-41.
 Edderkopp case, 15 January 1992, LNR 10/1992, JNR 34/1991, p. 39.
 Roemen and Schmit v. Luxembourg, 25 February 2003, Application No. 51772/99 (European Court of Human Rights), para. 57. For the Goodwin case, see section 6.1.6.1.
 Marcus v. Search Warrant, 367 U.S. 717 (1961), p. 730 -731.
 Ex parte the Guardian, the Observer and Martin Bright,  2 All ER 244, 262.
 Article 56-2, Criminal Procedure Code. See also, for example, Sections 97-98 of the German Criminal Procedure Code, Article 18.01(e) of the Texas Code of Criminal Procedure.
 ICCPR, Article 2. All regional human rights treaties contain a similar provision: see Article 1 of the ECHR; Article 2 of the ACHR; and Article 1 of the AChHPR. See also Article 13 of the ECHR and Article 25 of the ACHR, which require States to provide an ‘effective remedy’ for alleged violations and a right to judicial protection against violations.
 Declaration of Principles on Freedom of Expression in Africa, note 29 above, Principle XI.
 Joint Declaration of 29-30 November 2000. To access this document, see the link in note 30.
 Osman v. the United Kingdom, 28 October 1998, Application No. 23452/94 (European Court of Human Rights), para. 115.
 United Nations Committee on Human Rights, Observations and Recommendations to the State of Guatemala, doc. CCPR/C/79/Add.63, para. 25.
 Miranda v. Mexico, Case 11.739, Report Nº 5/99, OEA/Ser.L/V/II.95 Doc. 7 rev., p. 755 (1998), para. 52.
 Genie Lacayo v. Nicaragua, 29 January 1997, Series C No. 30, para. 77. See also König v. Germany, 28 June 1978, Application No. 6232/73 (European Court of Human Rights), para. 99.
 Velásquez Rodriguez v. Honduras, 29 July 1988, Series C No. 4,para. 177.
 Miranda v. Mexico, note 114, para. 65. The Commission made a similar finding in the case of Oropeza v. Mexico, concerning a writer who had been murdered for his denunciations of links between police and drug traffickers: Case 11.740, Report Nº 130/99, OEA/Ser.L/V/II.106 Doc. 3 rev., p. 1058 (1999).

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The CJEU opinion 1/15 from 26 July, with rejects the EU-Canada PNR agreement has been greeted with cheers from civil rights and privacy advocates.
To recall, the transfer of Passenger Name Records (PNR) held by private airlines to security authorities in order to screen inbound passengers was first required in 2003 by the US. The analysis of extended data generated at the time of booking (full travel itineraries, means of payment, contact details, co-travellers, etc.) has been said to boost the detection previously unknown suspects of terrorism and serious crimes. Over the last decade, this kind of (semi-automated) analysis of PNR data has spread over the OECD world, with traditional US allies of the Five Eyes (Canada, Australia, UK and New Zealand) at the forefront of the trend.
In response, the EU experienced a protracted debate to regularize this transfer of PNR data, including two rebuttals by the ECJ of the initial EU-US PNR agreements in 2004 and 2006. Following on from this, the EU concluded parallel PNR agreements with Australia (2013) and Canada (2014), while negotiations with further countries are likely in the future. For instance, Japan is said to move to PNR analysis ahead of the 2020 Olympics.
Meanwhile, several European member states, led by the UK, have long argued for the necessity of a PNR analysis system of their own. The European Commission started to look into this dossier nearly a decade ago, tabling a formal proposal in 2010. At the time, however, the European Parliament (EP) held many reservations against this proposal, most notably on the grounds that any PNR system collects and retains substantial amounts of information on all passengers, irrespective of individual grounds for suspicion. It took years of negotiation and the shock of several terrorist attacks in France to clear the way for the adoption of an EU PNR Directive in spring 2016 (Directive 2016/681). Yet already in January 2015, the EP had launched a legal challenge to test the validity of the EU-Canada PNR agreement, following on from the previously successful challenges against the EU-US agreement.
The new opinion of the Court of Justice needs to be read against this sensitive political background. The opinion will have major repercussions both for the relations of the EU with partner countries and the development of the EU’s own counterterrorism or internal security policy.
To begin with, the opinion (ECLI:EU:C:2017:592) from 26 July underlines the need for precision in the EU’s security cooperation with third countries and as well as the importance of including a primary legal basis for data protection, even if the intention of the cooperation is primarily for security purposes. Therefore, security agreements with other third countries will be subject to renewed scrutiny, including in fields beyond PNR (e.g. on the transfer of SWIFT financial transaction data to the US for counterterrorism purposes). For a more in-depth analysis, see the blog entry by Christopher Kuner from 26 July.
Yet arguably the most pressing question for European policy-makers and security authorities is whether the implementation of the EU’s own 2016 PNR directive (2016/681) can go ahead as planned. In light of the long and highly contested history of the PNR dossier just touched upon, there are many actors who are eager to upend the measure. The fate of the EU’s telecommunications data retention directive and the CJEU judgements on subsequent national legislation (Tele2 Sverige and Watson and Others) at the end of 2016 have given further headwind to critics.
So it is almost certain that the EU’s PNR Directive will come next for review before the CJEU, even if the process of implementing the directive and setting up national units in all EU member states for handling PNR data is already underway. It is therefore of critical importance to debate early on, how the last CJEU opinion on the EU-Canada PNR agreement could reflect on this coming legal challenge. For this purpose, the question of the appropriate legal basis of the EU-Canada agreement seems less relevant than the other substantive questions dealt by the opinion.
The Court accepts the proportionality of PNR data collection and analysis for the purposes of the prevention and investigation of serious crimes and terrorism. These purposes justify the interference with the right to privacy and basically non-consensual use of PNR data by security authorities. The key expression used repeatedly by the Court is “strictly necessary” (see esp. para 178, 180, 198, 201, 203). This could be good news for proponents of the EU PNR directive.
But in contrast to all these conceding points, the Court makes a major distinction between data collected on all passengers that travel to, and stay in, Canada, and the retention and use of data after passengers have left the territory of Canada. This critical point is most strongly worded in the conclusion (para 232 3 c & d), and in arguably a weaker form in the main text of the opinion (para 201-208). While this distinction may appear as a secondary issue, it actually could have serious repercussions for the EU PNR Directive, which does not make such a distinction. The EU Direction only foresees masking/depersonalization procedures of collected PNR data after 6 months from until maximum retention period of five years. (EU PNR Directive Art. 9(2), Art 12.), and makes no reference to the fact whether a person stays in the EU’s territory or not.
While there could be other reasons to test the EU PNR Directive and the respective national implementation measures (e.g. on suitability of data protection authorities, etc.), overlapping EU laws in all these fields could make the case for generally adequate safeguards and oversight mechanisms. Yet the link between data retention and stay on the territory of the EU questions the very foundation of the PNR system, irrespective of the question whether this data is masked or not.
However, this would not only require a revision of the EU directive as it stands, but generates several practical challenges. The EU would have to link the PNR analysis to the function of a so-called Entry-Exit System (EES) – as exist in the US and in Canada. The EU is currently close to agreeing on a comparable EES, but could take several years to create in practice. Moreover, the current EU proposal on the Entry-Exit system is also logically focused on Third Country Nationals, and would only record their movements, whereas EU citizens are only controlled against hits in the separate Schengen Information System that lists wanted persons (among many other police purposes). However, the EU PNR Directive also covers the collection of data on EU citizens on flights from the EU to third countries. Even with the creation of an EES, the EU would have no readily available mechanism to record the reentry of EU citizens, which could be necessary to document the necessary retention period for PNR data.
An even more radical reading of the Court opinion on the EU-Canada agreement could suggest that all travelers PNR data have to be deleted after their exit is recorded (also amounting to the same linkage & interoperability challenge with a yet-to-be established EES). This would mean that only in specified cases of reasonable suspicion would PNR data be retained up to five years. This would mostly obviate the need for the interim masking after 6 months, as regulated in the current directive, since one would already deal with a targeted group.
This interpretation corresponds with strict interpretation of the Tele2&Watson judgement, which argued for the need to target information collection and data retention to specific groups. The same line of argument could also be used to challenge the eventual creation of an EU Entry-Exit-System, which could be also be construed as an indiscriminate data collection and retention tool. However, it must be said that such a categorical rejection of data retention on travelers beyond a targeted group of suspects is not a foregone conclusion.
For now, member states will probably move ahead with the implementation of the EU Directive and the creation of national PNR units. The CJEU itself may also become more cautious in subsequent legal challenges, given that it has also avoided confrontation in other contested areas of internal security and Justice and Home Affairs, most notably the validity of Dublin rules in emergency situation. Nonetheless, the last Court opinion on the EU-Canada agreement will trigger a major political and legal debate over the coming months, with key actors in the EP eager to take this forward.
SUGGESTED CITATION Bossong, Raphael: Passenger Name Records – from Canada back to the EU, VerfBlog, 2017/7/28, https://verfassungsblog.de/passenger-name-records-from-canada-back-to-the-eu/, DOI: https://dx.doi.org/10.17176/20170731-093836.

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Words both false and slanderous, it is alleged, were spoken by the defendant of the plaintiff, and she sues in an action on the case for slander to recover damages for the injury to her name and fame.
"That the defendant, on a day named, speaking of the plaintiff, falsely and maliciously said, spoke, and published of the plaintiff the words following, 'I saw her in bed with Captain Denty.' That at another time, to-wit, on the same day, the defendant falsely and maliciously spoke and published of the plaintiff the words following, 'I looked over the transom light and saw Mrs. Pollard,' meaning the plaintiff, 'in bed with Captain Denty,' whereby the plaintiff has been damaged and injured in her name and fame, and she claims damages therefor in the sum of ten thousand dollars."
the general issue, which being joined, the parties went to trial, and the jury, under the instructions of the court, found a verdict in favor of the plaintiff for the whole amount claimed in the declaration. None of the other proceedings in the case at the special term require any notice, except to say that the defendant filed a motion in arrest of judgment, on the ground that the words set forth in the declaration are not actionable, and because the declaration does not state a cause of action which entitles the plaintiff to recover; and the record shows that the court ordered that the motion be heard at general term in the first instance. Both parties appeared at the general term, and were fully heard, and the court sustained the motion in arrest of judgment, and decided that the declaration was bad in substance. Judgment was subsequently rendered for the defendant, and the plaintiff sued out the present writ of error.
Definitions of slander will afford very little aid in disposing of any question involved in this record, or in any other, ordinarily arising in such a controversy, unless where it becomes necessary to define the difference between oral and written defamation, or to prescribe a criterion to determine, in cases where special damage is claimed, whether the pecuniary injury alleged naturally flows from the speaking of the words set forth in the declaration. Different definitions of slander are given by different commentators upon the subject; but it will be sufficient to say that oral slander, as a cause of action, may be divided into five classes, as follows: 1. words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished; 2. words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; or 3. defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment; 4. defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade; 5. defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage.
Two propositions are submitted by the plaintiff to show that the court below erred in sustaining the motion in arrest of judgment, and in deciding that the declaration is bad in substance: 1. that the words set forth in the declaration are in themselves actionable, and consequently that the plaintiff is entitled to recover, without averring or proving special damage; 2. that if the words set forth are not actionable per se, still the plaintiff is entitled to recover under the second paragraph of the declaration, which, as she insists, contains a sufficient allegation that the words spoken of her by the defendant were, in a pecuniary sense, injurious to her, and that they did operate to her special damage.
Certain words, all admit, are in themselves actionable, because the natural consequence of what they impute to the party is damage, as if they import a charge that the party has been guilty of a criminal offense involving moral turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial in a pecuniary sense to a person in office or to a person engaged as a livelihood in a profession or trade; but in all other cases the party who brings an action for words must show the damage he or she has suffered by the false speaking of the other party.
Where the words are intrinsically actionable, the inference or presumption of law is that the false speaking occasions loss to the plaintiff, and it is not necessary for the plaintiff to aver that the words alleged amount to the charging of the described offense, for their actionable quality is a question of law, and not of fact, and will be collected by the court from the words alleged and proved, if they warrant such a conclusion.
persons guilty of those offenses, if convicted, should be fined and punished as therein provided. Kilty's Laws, ch. xxvii., secs. 2, 3.
Beyond all doubt, offenses of the kind involve moral turpitude; but the second section of the act which defined the offense of fornication was, on the 8th of March, 1785, repealed by the legislature of the state. 2 Kilty, ch. xlvii., sec. 4.
Sufficient is remarked to show that the old law of the province defining such an offense was repealed by the law of the state years before the territory, included within the limits of the city, was ceded by the state to the United States; and inasmuch as the court is not referred to any later law passed by the state, defining such an offense, nor to any act of Congress to that effect passed since the cession, our conclusion is that the plaintiff fails to show that the words alleged impute any criminal offense to the plaintiff for which she can be indicted and punished.
Suppose that is so, still the plaintiff contends that the words alleged, even though they do not impute any criminal offense to the plaintiff, are nevertheless actionable in themselves, because the misconduct which they do impute is derogatory to her character, and highly injurious to her social standing.
are quite material, and, in some respects, irreconcilable. Nor are the decisions of the courts of that country, even of a later period, entirely free from that difficulty.
Examples both numerous and striking are found in the reported decisions of the period last referred to, of which only a few will be mentioned. Words which of themselves are actionable, said Lord Holt, must either endanger the party's life, or subject him to infamous punishment; that it is not enough that the party may be fined and imprisoned, for a party may be fined and imprisoned for a common trespass, and none will hold that to say one has committed a trespass will bear an action; and he added that at least the thing charged must "in itself be scandalous." Ogden v. Turner, 6 Mod. 104.
Viewed in any proper light, it is plain that the judge who gave the opinion in that case meant to decide that words, in order that they may be actionable in themselves, must impute to the party a criminal offense affecting the social standing of the party, for which the party may be indicted and punished.
Somewhat different phraseology is employed by the court in the next case to which reference will be made. Onslow v. Horne, 3 Wil. 186. In that case, De Grey, C.J., said the first rule to determine whether words spoken are actionable is, that the words must contain an express imputation of some crime liable to punishment, some capital offense or other infamous crime or misdemeanor, and that the charge must be precise. Either the words themselves, said Lord Kenyon, must be such as can only be understood in a criminal sense, or it must be shown by a colloquium in the introductory part that they have that meaning; otherwise they are not actionable. Holt v. Scholefield, 6 Term, 694.
Separate opinions were given by the members of the court in that case; and Mr. Justice Lawrence said that the words must contain an express imputation of some crime liable to punishment, some capital offense or other infamous crime or misdemeanor; and he denied that the meaning of words not actionable in themselves can be extended by an innuendo. 4 Co. 17b.
the crime in vulgar language, and not in technical terms; but the case does not contain an intimation that words which do not impute a crime, however expressed, can ever be made actionable by a colloquium or innuendo. Colman v. Godwin, 3 Doug. 90; Woolnoth v. Meadows, 5 East 463.
Incongruities, at least in the forms of expression, are observable in the cases referred to, when compared with each other; and when those cases, with others not cited, came to be discussed and applied in the courts of the states, the uncertainty as to the correct rule of decision was greatly augmented. Suffice it to say that it was during the period of such uncertainty as to the rule of decision when a controversy bearing a strong analogy to the case before the court was presented for decision to the supreme court of the State of New York, composed, at that period, of some of the ablest jurists who ever adorned that bench.
"In case the charge, if true, will subject the party, charged to an indictment for a crime involving moral turpitude, or subject the party to an infamous punishment, then the words will be in themselves actionable,"
and that rule has ever since been followed in that state, and has been very extensively adopted in the courts of other states. Brooker v. Coffin, 5 Johns. 190; 1 Am.Lead.Cas. (5th ed.) 98.
itself and indictable as such, and subjecting the party to an infamous punishment, or they must impute some indictable offense involving moral turpitude; and, in our judgment, the rule applicable in such a case is there stated with sufficient fullness, and with great clearness and entire accuracy.
Controverted cases involving the same question, in great numbers, besides the one last cited, have been determined in that state by applying the same rule, which, upon the fullest consideration, was adopted in the leading case -- that in case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject the party to an infamous punishment, then the words will be in themselves actionable.
Attempt was made by counsel in the case of Widrig v. Oyer, 13 Johns. 124, to induce the court to modify the rule by changing the word "or" into "and;" but the court refused to adopt the suggestion, and repeated and followed the rule in another case reported in the same volume. Martin v. Stillwell, 13 id. 275. See also Gibbs v. Dewey, 5 Cowen, 503; Alexander v. Dewey, 9 Wend. 141; Young v. Miller, 3 Hill 22; in all of which the same rule is applied.
Other cases equally in point are also to be found in the reported decisions of the courts of that state, of which one or two more only will be referred to. Bissell v. Cornell, 24 Wend. 354. In that case, the words charged were fully proved; and the defendant moved for a nonsuit, upon the ground that the words were not in themselves actionable; but the circuit judge overruled the motion, and the defendant excepted. Both parties were subsequently heard in the supreme court of the state, Nelson, C.J., giving the opinion of the court, in which it was held that the words were actionable; and the reason assigned for the conclusion is, that the words impute an indictable offense involving moral turpitude.
subject the party charged to an infamous punishment; but the supreme court of the state refused so to hold. Widrig v. Oyer, 13 Johns. 124; Wright v. Page, 3 Keyes 582.
Without the averment and proof of special damage, says Shaw, C.J., the plaintiff, in an action on the case for slander, must prove that the defendant uttered language the effect of which was to charge the plaintiff with some crime or offense punishable by law. Dunnell v. Fiske, 11 Met. 552.
Speaking of actions of the kind, Parker, C.J., said that words imputing crime to the party against whom they are spoken, which, if true, would expose him to disgraceful punishment, or imputing to him some foul and loathsome disease which would expose him to the loss of his social pleasures, are actionable, without any special damage; while words perhaps equally offensive to the individual of whom they are spoken, but which impute only some defect of moral character, are not actionable, unless a special damage is averred, or unless they are referred, by what is called a colloquium, to some office, business, or trust which would probably be injuriously affected by the truth of such imputations. Chaddock v. Briggs, 13 Mass. 252.
Special reference is made to the case of Miller v. Parish, 8 Pick. 385, as authority to support the views of the plaintiff; but the Court here is of the opinion that it has no such tendency. What the court in that case decided is, that whenever an offense is imputed, which, if proved, may subject the party to punishment, though not ignominious, but which brings disgrace upon the party falsely accused, such an accusation is actionable; which is not different in principle from the rule laid down in the leading case -- that if the charge be such that, if true, it will subject the party falsely accused to an indictment for a crime involving moral turpitude, then the words will be in themselves actionable.
the act of fornication as a criminal offense, punishable by a fine, and which may be prosecuted by indictment, and, if the person convicted does not pay the fine, he or she may be committed to the common jail or to the house of correction. None of the counts in that case contained an averment of special damage; but the court held that, inasmuch as the words alleged imputed a criminal offense which subjected the party to punishment involving disgrace, the words were actionable; and it is not doubted that the decision in correct. Exactly the same question was decided by the same court in the same way twenty-five years later. Kenney v. Laughlin, 3 Gray 5; 1 Stat. Mass. 1786, 293. Other state courts, where the act of fornication is defined by statute as an indictable offense, have made similar decisions; but such decisions do not affect any question involved in this investigation. Vandcrip v. Roe, 23 Penn.St. 182; 1 Am.Lead.Cas. (5th ed.) 103; Simons v. Carter, 32 N.H. 459; Sess.Laws (Penn. 1860) 382; Purdon's Dig. 1824, 313.
That the words uttered import the commission of an offense, say the court, cannot be doubted. It is the charge of a crime punishable by law, and of a character to degrade and disgrace the plaintiff, and exclude her from society. Though the imputation of crime, said Bigelow, J., is a test, whether the words spoken do amount to legal slander, yet it does not take away their actionable quality if they are so used as to indicate that the party has suffered the penalty of the law, and is no longer exposed to the danger of punishment. Krebs v. Oliver, 12 Gray 242; Fowler v. Dowdney, 2 M. & Rob. 119.
Courts affix to words alleged as slanderous their ordinary meaning: consequently, says Shaw, C.J., when words are set forth as having been spoken by the defendant of the plaintiff, the first question is whether they impute a charge of felony or any other infamous crime punishable by law. If they do, an innuendo, undertaking to state the same in other words, is useless and superfluous, and, if they do not, an innuendo cannot aid the averment, as it is a clear rule of law that an innuendo cannot introduce a meaning to the words broader than that which the words naturally bear, unless connected with proper introductory averments. Alexander v. Angle, 1 Crompt. & Jer. 143; Goldstein v. Foss, 2 Younge & Jer. 146; Carter v. Andrews, 16 Pick. 5; Beardsley v. Tappan, 2 Blatch. 588.
Much discussion of the cases decided in the Supreme Court of Pennsylvania is quite unnecessary, as we have the authority of that court for saying that the leading cases establish the principle, that words spoken of a private person are only actionable when they contain a plain imputation, not merely of some indictable offense, but one of an infamous character, or subject to an infamous or disgraceful punishment, and that an innuendo cannot alter, enlarge, or extend their natural and obvious meaning, but only explain something already sufficiently averred, or make a more explicit application of that which might otherwise be considered ambiguous to the material subject matter properly on the record, by the way of averment or colloquium. Gosling v. Morgan, 32 Penn.St. 275; Shafter v. Kinster, 1 Binn. 537; McClurg v. Ross, 5 id. 218; Andres v. Koppenheafer, 3 S. & R. 255.
State courts have in many instances decided that words are in themselves actionable whenever a criminal offense is charged, which, if proved, may subject the party to punishment, though nor ignominious, and which brings disgrace upon the complaining party; but most courts agree that no words are actionable per se unless they impute to the party some criminal offense which may be visited by punishment either of an infamous character, or which is calculated to affect the party injuriously in his or her social standing. Buck v. Hersey, 31 Me. 558; Mills v. Wimp, 10 B.Mon. 417; Perdue v. Burnett, Minor 138; Demarest v. Haring, 6 Cow. 76; Townsend on Slander, sec. 154; 1 Wendell's Stark. on Slander 43; Redway v. Gray, 31 Vt. 297.
Formulas differing in phraseology have been prescribed by different courts, but the annotators of the American Leading Cases say that the supreme court of the State of New York, in the case of Brooker v. Coffin, appear "to have reached the true principle applicable to the subject," and we are inclined to concur in that conclusion, it being understood that words falsely spoken of another may be actionable per se when they impute to the party a criminal offense for which the party may be indicted and punished, even though the offense is not technically denominated infamous, if the charge involves moral turpitude, and is such as will affect injuriously the social standing of the party. 1 Am.Lead.Cas. (5th ed.) 98.
Decided support to that conclusion is derived from the English decisions upon the same subject, especially from those of modern date, many of which have been very satisfactorily collated by a very able text writer. Addison on Torts (3d ed.) 765. Slander, in writing or in print, says the commentator, has always been considered in our law a graver and more serious wrong and injury than slander by word of the mouth, inasmuch as it is accompanied by greater coolness and deliberation, indicates greater malice, and is in general propagated wider and farther than oral slander. Written slander is punishable in certain cases, both criminally and by action, when the mere speaking of the words would not be punishable in either way. Villiers v. Mousely, 2 Wils. 403; Saville v. Jardine, 2 H.Bl. 532; Bac.Abr. Slander, B; Keiler v. Sessford, 2 Cr.C.C. 190.
Examples of the kind are given by the learned commentator, and he states that verbal reflections upon the chastity of an unmarried female are not actionable unless they have prevented her from marrying or have been accompanied by special damage, but if they are published in a newspaper, they are at once actionable, and substantial damages are recoverable. 2 Bl.Com. 125, n. 6; Janson v. Stuart, 1 Term, 784.
Even the judges holding the highest judicial stations in that country have felt constrained to decide that to say of a married female that she was a liar, an infamous wretch, and that she had been all but seduced by a notorious libertine, was not actionable without averring and proving special damage. Lynch v. Knight, 9 H. of L.Cas. 594.
and that she is a swindler are not actionable, even when special damage is alleged, unless it is proved, and the proposition is fully sustained by the cases cited in its support. Welby v. Elston, 8 M. G. & S. 142; Addison on Torts (3d ed.), 788; Townsend on Slander, secs. 172 and note, 516-518.
Words actionable in themselves, without proof of special damage, are next considered by the same commentator. His principal proposition under that head is that words imputing an indictable offense are actionable per se without proof of any special damage, giving as a reason for the rule that they render the accused person liable to the pains and penalties of the criminal law. Beyond question, the authorities cited by the author support the proposition and show that such is the rule of decision in all the courts of that country having jurisdiction in such cases. Heming v. Power, 10 Mees. & Wels. 570; Alfred v. Farlow, 8 Q.B. 854; Edsall v. Russell, 5 Scott N.R. 801; Brayne v. Cooper, 5 Mees. & Wels. 250; Barnet v. Allen, 3 H. & N. 378; Davies v. Solomon, 41 Law Jour.Q.B. 11; Roberts v. Roberts, 5 B. & S. 389; Perkins v. Scott, 1 Hurlst. & Colt. 158.
Examined in the light of these suggestions and the authorities cited in their support, it is clear that the proposition of the plaintiff that the words alleged are in themselves actionable cannot be sustained.
Concede all that and still the plaintiff suggests that she alleges in the second paragraph of her declaration that she "has been damaged and injured in her name and fame," and she contends that that averment is sufficient, in connection with the words charged, to entitle her to recover as in an action of slander for defamatory words with averment of special damage.
the means to determine whether the alleged special damage is the natural and proximate consequence of the defamatory words alleged to have been spoken by the defendant. Haddan v. Scott, 15 C.B. 429.
When special damage is claimed, the nature of the special loss or injury must be particularly set forth, to support such an action for words not in themselves actionable, and if it is not the defendant may demur. He did demur in the case last cited, and Cockburn, C.J., remarked that such an action is not maintainable unless it be shown that the loss of some substantial or material advantage has resulted from the speaking of the words. Addison on Torts (3d ed.) 805; Wilby v. Elston, 8 C.B. 148.
Where the words are not in themselves actionable because the offense imputed involves neither moral turpitude nor subjects the offender to an infamous punishment, special damage must be alleged and proved in order to maintain the action. Hoag v. Hatch, 23 Conn. 590; Andres v. Koppenheafer, 3 S. & R. 256; Buys v. Gillespie, 2 Johns. 117.
In such a case, it is necessary that the declaration should set forth precisely in what way the special damage resulted from the speaking of the words. It is not sufficient to allege generally that the plaintiff has suffered special damages or that the party has been put to great costs and expenses. Cook v. Cook, 100 Mass. 194.
By special damage in such a case is meant pecuniary loss, but it is well settled that the term may also include the loss of substantial hospitality of friends. Moore v. Meagher, 1 Taunt. 42; Williams v. Hill, 19 Wend. 306.
very early settled that a charge of incontinence against an unmarried female whereby she lost her marriage was actionable by reason of the special damage alleged and proved. Davis v. Gardiner, 4 Co. 16b, pl. 11; Reston v. Pomfreicht, Cro.Eliz. 639.
Doubt upon that subject cannot be entertained, but the special damage must be alleged in the declaration and proved, and it is not sufficient to allege that the plaintiff "has been damaged and injured in her name and fame," which is all that is alleged in that regard in the case before the court. Hartley v. Herring, 8 Term, 133; Addison on Torts, 805; Hilliard on Remedies (2d ed.), 622; Beach v. Ranney, 2 Hill, 309.
Tested by these considerations, it is clear that the decision of the court below that the declaration is bad in substance is correct.

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John (Jack) Harris Stewart was born on August 7, 1928 in Berkeley, California, to George and Theodosia Stewart. Jack’s father was a noted author and English professor at the University of California. The family, including Jack’s older sister Jill, travelled extensively while Jack's father conducted research for numerous books. Jack graduated from Berkeley High School in 1946. He then attended the University of New Mexico and obtained a bachelors degree in geology in 1950, with minors in math and anthropology attesting to his wide interests.
Jack began his 62-year career with the US Geological Survey in 1951. Jack’s earliest work for the USGS focused on the stratigraphy of Triassic rocks on the Colorado Plateau, and Jack obtained a doctorate in geology from Stanford University in 1961 based on these studies. He married Sally Dwight in 1962, and they had two children, Ed in 1964 and William in 1966. The family spent many summers in Nevada while Jack performed extensive field work. Jack married Joyce Colbath in 1990, and they spent 22 happy years together exploring the world.
Jack began his studying Nevada geology in the early 1960s and spent most of the rest of his career working there, becoming the preeminent authority on the geology of the Great Basin. His studies led to preparation of the first comprehensive geologic map of Nevada, published in 1978 by the USGS, and a companion book describing the geology of Nevada published in 1980 by the Nevada Bureau of Mines and Geology.
Jack’s diverse interests and skills led to a wide range of studies during his long career with the USGS. These studies can be broadly grouped into 8 topics, while readily acknowledging that his publications addressed many additional subjects. The following lists these topics and a few seminal publications for each that represent a small sampling of the several hundred papers and maps that Jack authored or co-authored.
Stewart, J.H., 1959, Stratigraphic relations of Hoskinnini member (Triassic?) of Moenkopi Formation on Colorado Plateau: AAPG Bulletin, v. 43, p. 1852-1868.
Stewart, J. H. 1961, Stratigraphy and origin of the Chinle Formation (upper Triassic) on the Colorado Plateau: Stanford, CA, Stanford University, PhD thesis.
Stewart, J.H., Poole, F.G., and Wilson, R.F., 1972, Stratigraphy and origin of the Chinle Formation and related Upper Triassic strata in the Colorado Plateau region: U.S. Geological Survey Professional Paper 690.
Stewart, J.H., et al., 1986, Late Triassic paleogeography of the southern Cordillera: The problem of a source for voluminous volcanic detritus in the Chinle Formation of the Colorado Plateau region: Geology, v. 14, p. 567-570.
Stewart, J.H., 1970, Upper Precambrian and Lower Cambrian strata in the southern Great Basin California and Nevada: U.S. Geological Survey Professional Paper 620.
Stewart, J.H., 1972, Initial deposits in the Cordilleran geosyncline: Evidence of a late Precambrian (<850 my) continental separation: Geological Society of America Bulletin, v. 83, p. 1345-1360.
Stewart, J.H., and Poole, F.G., 1974, Lower Paleozoic and uppermost Precambrian Cordilleran miogeocline, Great Basin, western United States: SEPM Special Publication 22, p. 28-.
Stewart, J.H., 1976, Late Precambrian evolution of North America: plate tectonics implication: Geology, v. 4, p. 11-15.
Stewart, J.H., and Suczek, C.A., 1977, Cambrian and latest Precambrian paleogeography and tectonics in the western United States: Pacific Coast Paleozoic Paleogeography of the western United States, Pacific Section, SEPM, p. 1-17.
Link, P.K., et al., 1993, Middle and Late Proterozoic stratified rocks of the western US Cordillera, Colorado Plateau, and Basin and Range province: Geological Society of America, The Geology of North America, v. 2, p. 463-595.
Stewart, J.H., et al., 2001, Detrital zircon provenance of Mesoproterozoic to Cambrian arenites in the western United States and northwestern Mexico: Geological Society of America Bulletin, v. 113, p. 1343-1356.
Stewart, J.H., 1971, Basin and Range structure: A system of horsts and grabens produced by deep-seated extension: Geological Society of America Bulletin, v. 82, p. 1019-1044.
Stewart, J.H., 1983, Cenozoic structure and tectonics of the northern Basin and Range Province, California, Nevada and Utah: Geothermal Resources Council Special Report 13, p. 25-40.
Stewart, J.H., 1998, Regional characteristics, tilt domains, and extensional history of the late Cenozoic Basin and Range province, western North America Geological Society of America Special Paper 323, p. 47-74.
Stewart, J.H., Albers, J.P., and Poole, F.G., 1968, Summary of regional evidence for right-lateral displacement in the western Great Basin: Geological Society of America Bulletin, v. 79, p. 1407-1414.
Stewart, J.H., 1988, Tectonics of the Walker Lane belt, western Great Basin: Mesozoic and Cenozoic deformation in a zone of shear, in Ernst. W.G,, ed., Metamorphism and Crustal Evolution of the Western United States Rubey Volume VII: Englewood Cliffs, New Jersey, Prentice-Hall, p. 683-713.
Stewart, J. H., and Crowell, J.C., 1992, Strike-slip tectonics in the Cordilleran region, western United States, in The Cordilleran orogen: Conterminous United States: Boulder, Colorado, Geological Society of America, Geology of North America, v. 3, p. 609-628.
Stewart, J.H., 1967, Possible large right-lateral displacement along fault and shear zones in the Death Valley-Las Vegas area, California and Nevada: Geological Society of America Bulletin, v. 78, p. 131-142.
Stewart, J.H., 1983, Extensional tectonics in the Death Valley area, California: Transport of the Panamint Range structural block 80 km northwestward: Geology, v. 11, p. 153-157.
Golia, R.T., and Stewart, J.H., 1984, Depositional environments and paleogeography of the Upper Miocene Wassuk Group, west-central Nevada: Sedimentary Geology, v. 38, p. 159-180.
Stewart, J.H., and Diamond, D.S., 1990, Changing patterns of extensional tectonics; overprinting of the basin of the middle and upper Miocene Esmeralda Formation in western Nevada by younger structural basins: Geological Society of America Memoir 176, p. 447-476.
Stewart, J.H., 1992, Paleogeography and tectonic setting of Miocene continental strata in the northern part of the Walker Lane belt, in Structure, tectonics and mineralization of the Walker Lane, a short symposium, April 24, 1992, Proceedings Volume: Reno, Geological Society of Nevada, p. 53-61.
Stewart, J.H., Sarna-Wojcicki, A. M., Meyer, C.E., Starratt, S.W., and Wan, Elmira, 1999, Stratigraphy, tephrochronology, and structural setting of Miocene sedimentary rocks in the Middlegate age, west-central Nevada: U.S. Geological Survey Open-File Report 99-350.
Albers, J.P., and Stewart, J.H., 1972, Geology and mineral deposits of Esmeralda County, Nevada, Nevada Bureau of Mines and Geology Bulletin 78, 88 p.
Stewart, J.H., and Carlson, 1976, Geologic map of north-central Nevada: Nevada Bureau of Mines and Geology Map 50, scale 1:250,000.
Stewart, J.H., and Carlson, J.E., 1976, Cenozoic Rocks of Nevada, Four Maps and Brief Description of Distribution, Lithology, Age, and Centers of Volcanism: Nevada Bureau of Mines and Geology Map 52, scale 1:1,000,000.
Stewart, J.H., McKee, E.H., and Stager, H.K., 1977, Geology and mineral deposits of Lander County, Nevada: Nevada Bureau of Mines and Geology Bulletin 88, 114 p.
Stewart, J.H., and Carlson, J.E., 1977, Geologic Map of Nevada: One Million Scale Set: Nevada Bureau of Mines and Geology Map 57, scale 1:1,000,000.
Stewart, J.H., and Carlson, J.E., 1978, Geologic map of Nevada: U.S. Geological Survey State Geologic Map, scale 1:500,000.
Stewart, J.H., Carlson, J.E., and Johannesen, D.C., 1982, Geologic map of the Walker Lake 1 by 2 quadrangle, California and Nevada: U.S. Geological Survey Miscellaneous Field Studies Map MF-1382-A, scale 1:250,000.
John, D.A., Stewart, J.H., Kilburn, J.E., Silberling, N.J., and Rowan, L.C., 1993, Geology and mineral resources of the Reno 1 by 2 quadrangle. Nevada and California: US Geological Survey Bulletin 2019, 65 p.
Stewart, J.H., 1999, Geologic map of the Carson City 30x60 minute quadrangle, Nevada: Nevada Bureau of Mines and Geology Map 121, scale 1:100,000.
Stewart, J.H., et al., 1990, Tectonics and stratigraphy of the Paleozoic and Triassic southern margin of North America, Sonora, Mexico: Arizona Geological Survey Special Paper 7, p. 183-202.
Stewart, J.H., et al., 1999, Exotic Paleozoic strata of Gondwanan provenance near Ciudad Victoria, Tamaulipas, Mexico: Geological Society of America Special Paper , p. 227-252.
Stewart, J.H., Amaya-Martínez, Ricardo, and Palmer, A.R., 2002, Neoproterozoic and Cambrian strata of Sonora, Mexico: Rodinian supercontinent to Laurentian Cordilleran margin: Geological Society of America Special Paper , p. 5-48.
Gehrels, G.E., Stewart, J.H., and Ketner, K.B., 2002, Cordilleran-margin quartzites in Baja California–implications for tectonic transport: Earth and Planetary Science Letters, v. 199, p. 201-210.
For his outstanding achievements and extensive contributions to knowledge about the geology of western North America, Jack was granted the Distinguished Service Award, the highest award of the Department of the Interior, in 1994. Although Jack officially “retired” from the USGS in 1995, he remained a highly productive “Scientist Emeritus” until his death on March 1, 2013. Jack was both a premier scientist who was highly respected by his colleagues and a good friend and teacher to countless geologists who wanted to learn about the geology of Nevada.

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