382
'FEDERAL REPORTER.
is an implied warranty that the ship shall be reasonably fit for the voyage, and for the particular service for which she is engaged. 'The neglect to fulfill this preliminary obligation has been held not covered by the ordinary exceptions as to negligence. Steel v. State Line S. S. Co.· 3 App. Cas. 72,86; Kopitoffv. Wikon, 1 Q. B. Div. 377; The Hadji, 16 Fed. Rep. 861, 864i Tattersall v. National S. S. 00., 12 Q. B. Div. 297. In the first case cited a defective fastening of the orlop port-hole before the ship sailed, if such as to make the vessel unseaworthy, was held not covered by the exceptions, because "Dot arising upon the voyuge. In the last case cited, death of cattle, caused from failure properly to purify the ship from the effects of a contagious disease through the carriage of cattle on a previous voyage, was held not' within the terms of a bill of lading quite as broad as the present. These excevtiol?s, however, do include "stowage," which embraces the distribution of the cattle, and of the other cargo; and they include also "perils of the seas arising from negligence," which would cover imprudent navigation. But a.s I cannot find that the loss of the cattle would have probably happened if there had been no negligence in these respects, notwithstanding the inferiority of the fittings, the validity of the exceptions, as depending upon the application of the English or the American law, is involved in the decision. The question presented is a very important one. All the steam-ship lines, whether domestic or foreign, that sail from this port, insert in their bills of lading substantially the same conditions. Considering the number and magnitude of the shipments by these lines, and the very diverse views found in the text-books and decisions upon this branch of the conflict of laws, I have deferred a decision of the cause until able to give the questions involved something, at least, of the consideration their importance demands. The conclusion to which I have come is that our law must prevail, whether the question be viewed as a question of responsibility for a tort; or of the construction and validity of the exceptions in the bill of lading, in a conflict of laws; or as a question of evidence and procedure; or as a question of comity, as related to our national policy. First. By the law of both countries negligence in a common carrier is a tort, as well as a breach of contract. It was upon its aspect as a tort that the decision of the court below was reversed on appeal, and only half damages given, in the case of Chartered j}[ercantile, etc., v. Netherlands, etc., 10 Q. B. Div. 521, 534. The tort found upon the facts in the present case is a tort committed partIy. within the exclusive jurisdiction of this country, and partly upon the high seas, within the exclusive jurisdiction of neither country. Under the terms of the bill of lading in this case, the English courts hold that, for such a tort, the ship and owners are not liable; the law of this oountry holds that they are liable. It is well settled, however, that responsibility for torts committed within the exclusive jurisdiction of the country of the forum, and affecting its own citizens, are determined according to its own laws. It is only as respects tortious acts committed beyond its jurisdiction that any doubt has existed as to the remedy to be afforded. In the latter
TIlE BRANTFORD CITY.
383
cases, the principle generally accepted is that, to entitle the suitor to recover in a foreign forum, the act must have been tortious according to the law of the jurisdiction wherein it was committed, as well as by the law of the forum. West. Int. Law,§ 186; Whart. Confl. Laws, §§ 475478; Foote. Priv. Int: Law, 393,410;Phillipsv. Eyre, L. R. 4 Q. B. 225. But inasmuch as the high seas are the common ground of all nations, and are not governed by the merely municipal laws of either, the quality of acts committed on the high seas, as between persons or ships belonging to different nations, whose laws are different, is detern1ined by the maritime law as accepted and administered in the forum where the suit is prosecuted. Hence acts, tortious by the law ofEngland , if committed on the high seas, are actionable in England, though not tortious by the municipal law of the defendant's domicile,or of the ship's flag; and, in general, the law of the flaghaa. no application to torts committed on the high seas, as between perSons or ships of different countries having different laws. Foote, Priv. Int. Law, 398,403; Mars. Coli. (2d Ed.) 208, 209, 212. The point was distinctly presented, and so adjudged, in the case of The Leem, 6 Prob. Div.148. The same rule in this country has been 'repeatedly affirmed by the supreme court. The Scotland. 105 :0. S.24, 29; The Belgenland, 114 U. S. 355; S. C. 5 Sup. Ct. Rep. 860. In the latter case the court say, (page 369:) "As to the law which should be applied in cases between parties or ships of different nationalities,arising on the high seas, not within the jurisdiction of any.nation, there can be ,no doubt that it, must. be. the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted." The fact that, in most of the cases cited, the injury arose from collision is immaterial. The gravamen of the action is negligence. On that alone the action depends. It is the negligence only that constitutes the tort. It is 80 in this case, in its aspect as a tort; and as this negligence, resulting in damage to the libelants, occurred partly within our diction, and partly upon the high seas, the law applicable to the case, as one of negligence, would seem, upon the above authorities, to be our own law, as the law of the forum. Sec<md; As a question of contract, concerning the construction and validity of the exceptions in the bill of lading, as between the different laws of England and the United States, our own law should, I think, prevail; whether the question be determined in view of the general maritime law, or by the presumed intent of the parties, upon the principles of comity. The'''law of the flag," 80 called, which it is urged should govern the case, does not embody any rule of legal construction. Literally, it is but a concise phrase to express a simple fact, namely. the law of the country to which the ship belongs, and whose flag she bears, whether it accords with the general maritime law or not. In so far, however, as the law of the flag does not represent the general maritime law, it is but the municipal law of the ship'8home. It has, therefore, no force abroad, except by comity. But foreign law is not adopted by comity, unless some good reason appear in the particular case why it should be
384
FEDERAL REPORTER.
preferred to the law of the forum. The most frequent and controlling reasons are the actual or presumed iutent of the parties, or the evident justice of the case arising from its special circumstances. On this ground, the law of the ship's horne is applied, by comity, to regulate the mutual relations of the ship, her owner, master, and crew, as among themselves; their liens for wages,_ and modes of discipline. The Johann Friederich, 1 W. Rob. 35; The Enterprise, 1 Low. 455; The Wexford, 3 Fed. Rep. 577; The J. L. Pendergast, 29 Fed. Rep. 127. For the same reasons it is also applied, by comity, to torts on the high seas, as between vessels of the same nation, or vessels of different nations subject to similar laws, though not if they are subject to different laws. The Scctland. 105 U. S. 24, 30. To what extent the law of the ship's home is entitled to be applied, by comity, to of affreightment, made in a foreign port, has long been a mooted question. Opposite decisions have been made in this countr)'. Arayo v. Ourrel, 1. La. 528; Pope v. Nwkerson, 3 Story, 465. The later English decisions hold that the law of the ship's home port should govern as respects the future and unforeseen incident!! of the voyage,-such as the execution of bottomry in a port of distress, and the liability of the owners for damages beyond the value of the ship and freight. This is rested, in part, upon the ground of the legal limitations of the master's authority to bind the owner/!!· personally; but more especially on the gr0und of the presumed intention of the parties, having reference to all the contingencies of navigation, and to the circumstances likely to arise in the prosecution of foreign voyages. The Gaetano, 7 Prob. Div. 137; Lloyd v. Guibert, 6 Best & S. 117; S. O. L. R. 1 Q. B. 115. In the case of The Titania, 19 Fed. Rep. 101,103, a bill given in England UpOh a shipment of goods on an English ship, was accordinglyassumed to be governed by the English law, as respects damages arising on the high seas. See, also, Blanchet v. Powell'S, etc., 00., L. R. 9 Exch. 74, 77. Upon the reasoning in Lloyd v.Guibert, it has been asserted by a recent author (Foote, Priv. Int. Law, 329) that the law of the flag is "to regulate the liabilities and regulations which arise among the parties to the agreement, be it of affreightment or hypothecation, upon this principle: that the ship-owner who sends his vessel into a foreign port gives notice by his flag, to all who enter into contracts there with the shipmaster, that he intends the law of that flag to regulate those contracts, and that they must either submit to its operation, or not contract with him or his agent at all." If the law of the flag were accepted as authoritative and binding to the extreme extent thus stated, it would go far to sustain the respondent's claim in the present case. The doctrine claimed, however, does not appear to me to be warranted either on principle or by the authorities on which it purports to rest. It is inconsistent with the existence of any maritime law at all, as distinguished from mere municipal law; and in Lloyd v. Guibert the maritime law was ignored, {The Karnak, L. R. 2 P. 0.505, 512,) though the conclusion agreed with it. But in this country the general maritime law has been often
THE BRANTFORD
CITY.
385
recognized by the supreme court as a guide in interpretation and construction, (Norwich 00. v. Wright, 13 Wall. 104,121;) and in some notable cases it has been made the ground, or one of the grounds, of the decision; when an adoption of the mere law of the flag would have led to an opposite conclusion, (The Scotia, 14 Wall. 170, 186-188; The Scotland. 105 S. 24, 29, 30.) Practically, moreover, the extreme rule above declared would require all merchan.ts to acquaint themselves, at their peril, with all the details of the inunicipallaw of every nation with whose ships they might deal, even in ordinary commercial transactions; certainly a most onerous, if not impracticable, requirement. In Searight v. Galbraith, 4 Dall. 327, Mr. Justice IREDELL said: "Every man is bound to know the laws of his own country, but no man is bound to know the laws of foreign countries. In two cases, indeed, (and, I believe, only in two cases,) can foreign laws affect the contracts of American citizens: (1) Where they reside or trade in a foreign country; and (2) where the contracts, plainly referring to a foreign country for their execution, adopt and recognize the lex luct." .
U:
These observations are precisely opposite to the contention of the claimants. By the maritime law the owners are liable, up to the value of the ship and freight, for all the master's contracts in the business of the ship. Emerigon, Contracts a la Grosse, cited in The Scotland, 105 U. S. 28; The Phebe, 1 Ware, 263, 268; The Paragon, Id. 322. Wherever the general maritime law is recognized as a source of authoritative exposition or construction, it would seem, therefore, that the master's authority in foreign ports, in the absence of statutory definition, might,well be held to be that which the general maritime law confers, without regard to any narrower limitations that may be imposed by the mere municipal law of the ship's borne. In the case of The Lottawanna, 21 Wall. 558, 572: Mr. Justice BRADLEY says: "In matters affecting the stranger or the foreigner, the commonly received law of the whole commercial world is more assiduously observed, as, in justice, it ought to .be." As respects any extension of the owner's personal liability beyond the rule of the maritime law, or any acts of the master beyond the scope of his authorit) as generally recognized by that law, the law of the flag may justly be invoked. In Lloyd v. Guihert the plaintiff sought to extend the shipowner'l1 personal responsibility beyond that of the general maritime law, and the language of BLACKBURN, J., which was in fact the law of the in the court below, quoted in part by the author above named, clearly appears from the context to have been used in reference to the shipowner's unlimited personal liability in a common-law action, such as that cause was; not as respects his limited liability under the maritime law. Except as relates to this unlimited personal liability, the above-stated rule, to the broad extent asserted for it, is certainly not in accordance with the prior decisions in this country that hold British ships liable to a maritime lien for necessary supplies furnished here, though no such lien, or. authority in the master to create such a lien, was then, or is v.29F.no.9-25
386
now,recognized b)r the law of the flag. The Rio Tinto, 9 App. Cas. 356; TheWalkyricn, 3 Ben. 394; affirmed, 11 Blatchf. 241; The Eliza Jane, 1 Spr: 152; The Selah, 4 Sawy. 40; Hatton v. The Melita, 3 Hughes, 494. In several English cases, also,' concerning bottomry bonds given in foreign ports, the validity of the law of the foreign port giving a maritime lien for necessary supplies, and a right to arrest the vessel therefor, is directly recognized as a ground of validating subsequent bottomry, though such a lien was contra.ry to the law of the flag. The Vibilia, 1 W. Rob. 1,8; ThePrince George, 4 Moore, P. C. Cas. 21, 25; The Karnak, L. R. 2 Adm. & Ecc.289;S. C. L. R. 2 P. C. 505. In the present case no question arises concerning the authority of the master, as respects future incidents of the voyage. The question concerns only the validity of the exceptions inserted in the bill of lading. On this subject the ordinary rule is that the law of the place where the contract is malie governs, asresp'ects the nature, validity, and interpretation ofit,unless it be made with a view to performance elsewhere; and, in that case, it is governed by the law of the place where it is designed to be performed. Story, Confl. Laws, §§ 242, 280. This contract was made within the United States, i. both the original agreement for the transportation of the cattle to Deptford, and also the bill of lading. As respects' proper stowage, suitable cattle fittings, and general seaworthiness, the contract was to be performed wholly in Boston, i. within the exclusive juriSdiction of the United States'. Aa respects navigation, it was to be performed chiefly on the high seas; as respects final delivery, in England. The negligence found arose in part within the United States, and in part upon the high seas. The general rule of construction, in the .form above stated, does not, therefore, afford a. sufficient guide in this case, unless the same stipUlation should be held valid or invalid, according as the acts of negligence are committed within the jurisdiction of England, or the jurisdiction of the United States; and, even then, the rule would not determine the question as respects acts of negligence committed on the high seas, within the exclusive jurisdiction of neither. , In the case of v. Union Nat. Bank, 91 U. S. 406, the supreme court say, pages 41'2, 413: "Matters bearing upon theexeclltion, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy,-such 8$ the bringing of suits, admissibility of" evidence, statutes of limitation,depend upon the law of the place where the suit is brought;"
e.,
The same language is repeated in Priwhard v. Norton, 106 U. S. 124, 130; S. C. 1 Sup. Ct. Rep. 102. But these distinctions are inconclusive here; because while, on the one hand, the question concerns the "validity" of the stipulation, and so would fall under the first branch of the rule, the negligence) on the other hand, and the stipulation for exemption from liability for negligence in the performance of the contract, are "matters connected with its performance," which would fall under
THE
BRANTFORD
387
the second branch. Nor does this rUle indicate what law is to be deemed to prevail.when the place of the negligence is the high seas. The modem English and American decisions, while they approach the point, do not precisely meet it. In Peninsular, etc., Nav. Co. v. Shand, 3 Moore, P. C. S.) 290 and 291, TURNER, L. J., says: "The general rule is that the law of the conntry where a contract is made governs as to the nature, the obligation, and the interpretation of it. The parties to a contract are either the subjects of the power there rnling, or, as temporary residents, owe it a temporary allegiance. In either case, equally, they must be understood to submit to the law there prevailing, and to agree to its action upon their contract. It is, of course, immaterial that such agreement is not expressed in terms. It is equally an agreement in fact, presumed de jure; and a foreign court, interpreting or enforcing it on any contrary rule, defeats thA intention of the parties, as well as neglects to observe the , recognized comity of nations." In the recent case of WattBv. fumors, 115 U. S. 353, S. C. 6 Sup. Ct. Rep. 91, the question arose as to the amount of damages recoverable upon the refusal of a charterer to accept an English vessel, pursuant to a charter executed in New Orleans, by which a citizen of Louisiana had agreed to freight the ship, under a stipulated penaltYj the libelants claiming the whole stipulated penalty under the law of that state, whereas, by the general maritime law of both England and this country, the actual damages only could be recovered. The court held that the case Was not governed by the local law of Louisiana, and say, (GRAY, J.:) "The law of Louisiana does not govern this question, whether it is treated as a question of construction of the contract of the parties, or as a question of jUdicial remedy. If it is considered as depending upon the intent of the parties, as manifested by their written contract, the performance of that contract is to be regulated by the law which they must be presumed to have had in view when they executed it. Americans and Englishmen, entering into a charter-party of an English ship for an ocean voyage, must be presumed to look to the general maritime law of the two countries, and not to the local law of the state in which the contract is signed." The rule indicated by this case is not simply the law of the place of performance. but" the law that the parties must be presumed to have had in view in making the contract;" thus returning to the form of the rule as expressed by Lord MANSFIELD in Robinson v. Bland, 2 Burr. 1078. The presumed intent of the parties, however, is the basis of the common rule making the law of the place of performance govern, instead of the law of the place of the execution of the contract, (Story, Conti. Laws, § 280j) and all the late cases emphasize the intent of the parties, either actual or presumed, as the controlling feature. The case of Watts v. fumOT8 was decided, it will be also observed, not upon the ground that "the law of the flag" prevailed, i. the law of England alone, but on the ground that the law that the parties are presumed to have had ill view should control, and that that law must be presumed to be the p;eneral maritime law of the two countries. That decision, however, does not directly answer the present questionj because the general maritime law, as admin-
888 I
l$tered in England, is opposite to that ofthis country, as respects the validity of. stipulations exempting carriers from liability for negligence. But in so far as that case rejects the law of the flag as presumably representing the intent of the parties, and substitutes therefor the maritime law of the two countries, it would sustain the authority of our own law in a case of difference; because no foreign law can be adopted by comity, unless Some prevailing reason be found for preferring it to our own; and, if the two ,apply equally, ours must stand here, unless a different intention be proved, or be legally inferred. In the oft-quoted case of Lloyd v. Gnibert, L. R. 1 Q. B. 115, wherethe libelant, pursuant to a charter-party executed in England, had loaded cargo, at the Danish island of St. Thomas, on board a French vessel commanded by a French master, who, in the course of the voyage, had executed a bottomry bond upon the ship and cargo, and, by reason of subsequent disasters, the ship was afterwards surrendered in discharge of the owner's liability, pursuant to the French law, it was held that the French law governed the contract as the law of the flag, which the parties, under the circumstances, were presumed to have had in view as the governing law of the transaction; and that the libelant could not, therefore, after such surrender, recover of the French owners, in accordance with the English law, any part of the amount that he had been obliged to pay iIi consequence of the bottomry of his goods, though he would have been entitled to do so under the English law. But this case referred, not to the vaiidity of any of the express term8 of the contract itself, but only to the law governing the contract as respects the extent of the owner's liability" for sea damage to the ship, and its ordinary result." The court, in conclusion, say, (page 129:) "The general rule that, where the contract of affreightment does not provide otherwise, there, as between the parties to such contract, in respect oj sea damage and its incidents, the law of the ship should govern, seems to be not only in accordance with the probable intention of the parties, but also most consistent and intelligible, and therefore most convenient to those en· gaged in commerce." The decision has no reference to the validity of the terms of the original contract, or to the law by which its validity is to be determined. The general rule on that point, as above stated, is repeatedly recognized. Pages 122" 123. In the case of The Gaetano, 7 Prob. Div. 1, 137, a question arose in regard to the validity of a bottomry bond, for want of communication with the owner. The cargo was shipped at New York, on board an Italian vessel which had been chartered for the purpose in London. The ship, in the course of the voyage, having put into Fayal in distress, the master executed a bottomry bond in accordance with the Italian law; but without any such communication with the owners of the cargo as was practicable, and such as by the English and American law was ne(',.. assary to make the bottomry valid. It was held that the Italian law, as the law of the flag, prevailed, as presumptively the law contemplated by the parties to the charter and shipment, and that the bond was valid.
THE BRANTFORD CITY.
389
This case, also, had no reference to the validity of any of the express terms of the contract, but to the incidental authority of the master, in unforeseen contingencies that happened in the prosecution of the voyage. r cnnn.ot reconcile this decision, however, with that of the earlier case of The Hamburg, 2 Moore, P. e.eN. S.) 289, where an opposite result was arrived at. The case of Chartered Mercantile Bank of India v. Netherlands, etc., Co .· 10 Q. B. Div. 521, was brought to recover damages for an injury to cargo in a case of collision. A bill of lading exempting from liability for negligence had been given at Singapore, an English port, by the captain of the ship, which was registered in Holland, and which carried the Dutch flag. BRETT, L. J., says, (page 529:) "Even if this is to be regarded as a Dutch ship, it seems to me that the contract is nevertheless English. It may be true, in one flense, to say that, where the ship carries the flag of a particular country, prima facie the contract made by the captain of that ship is a contract made according to the law of the country whose flag the ship carries. But that is not conclusive. The question what the contract is, and by what rule it is to be construed, isa question of the intention of the parties, and one must look at the circumstances, and gather from them what was the intention of the parties. In this case the persons for whose benefit ihe ship was employed, and for whom the ship was earning profit, were undoubtedly the defendants, everyone of whom is an Englishman. The defendants are registered in Holland as a Dutch company, but they are also registered in England as an English joint-stock company. The contract was made in an English form. The contract, therefore, was made by a senant and agent of the defendants, who authorized that contract to be made in order to obtain profit for themselves. 'l'he contract was made for the carriage of goods from an English port to a Dutch port. It was made with an English merchant. The contract was drawn up in the English language, in the ordinary form of an English bill of lading, and the were named in the contract as a limited company; in other words, they were described as an EngliSh company. It seems to me that, upon taking those circumstances into consideration, the inference is irresistible that it was the intention of the parties that the contract should be an English contract, even though one considers the ship to have been a Dutch ship, which I think she was not. If the contract be English, it must be construed according to the rules for construing an English bill of lading." The latest EngliElh case on this subject that r have met is that of Jacobsv. Credit LyCYfmaw, (1884,) 12 Q. B. Div. 589, in which the defendants, a firm in London, contracted in London with the plaintiffs, who were also merchants in London, to deliver to the latter 20,000 tons of Algerian esparto, to be shipped by the Compagnie Franco-Algerienne, from Arzew, during the year 1881, upon ships to be supplied by the plaintiffs, in about equal proportions in each month. The agreement contained numerous provisions in regard to the shipment by steamers from Algiers, and the plaintiffs were required to accept and approve of the esparto as put on board in that country. After the partial execution of the contract, its further performance was rendered impossible through the outbreak of an insurrection in Algiers, and consequent military operations there, which, by the French law prevailing in that country. constituted a case of major force that discharged the defendants from the
390 further of Notwithstanding the fact that ,the espartQ was to be accepted an.d approved in Algiers,it was held that ,the to the English law, and not the French law; that contract was the contract was not, therefore, discharged; and thattbe defendants were liable for the non-delivery of the residue of the goods under the contract. The court, BOWEN. L. J.,·after referring to the ordinary rule that the law of the, place where the contraot is made is prim,ajaCtie that which the parties intended, and which o1Jght to be adopted, as the footing upon which they dealt, says: "It is obvious, howevel', that. the SUbject-matter of each contract must be
looked at as well as tlie residence of the contra.cting parties. or the place where the contract is made. The place of performance is necessarily, in many cases. the place where the obligations of the contract will have to be enforced; and hence. as well as for other reasons. has been introduced an· otber canon Of constnlction, to the effect that the law of the place of fulfillment of a contract determines its obligations. But this maxim, as well as the former, must, of course, give way to any inference that can legitimately be drawnfrom the character of the contract and the nature of the transaction. In most cases, no doubt, where a contl'act has to 6e wholly performed abroad, the reasonable presumption may be that it is intended to be a foreign contract, determined by foreign law; but this prima facie view is, in its turn, capable of being rebutted by the expressed or implied intention of the parties, as deduced from other circumstances. Again, it may be that the contract is pal'ely to be performed in one place and partly in another. In such a case. the only certain (lnide is to be lound in applying sound ideas of business. convenience, Q-nd sense to the language of the contract itself. with a view to disoovering from it the troe intention of the parties. Even in respect of any performance that is to take place abroad, the parties may still have desired that their liabilities and obligations shall be governed byEnglish law. or it may betbat they have intended to incorporate the foreign law to regulate the method and manner of pflrformance abroad. without altering any of the incidents which attach to the contract according to English law. Stereotyped rules, laid down by juridical writers. cannot, therefore, be accepted as infallible canons of interpretation in these days, when commerCial transactions have altered in character, and increased in complexity; and there can be no hard and fast rule by which to construe the multiform commercial agreements with which, in modern times, we have to deal."
The facts of the case were there held insufficient to rebut the ordinary presumption that the law of the place where the contract is made governs its interpretation, and the contract was therefore held to be subject to the English law. The same general question. was elaborately considered, also, by Mr. Justice MATTHEWS, in the case of Pritchard v. Norton, 106 U. S. 124, S. C. 1 Sup. Ct., Rep. 102, where a ,bond had been executed in New York which would be void there for WRJ;lt of consideration, though valid in Louisiana, where the transaction out of which it grew originated; and it was held "that, from the circumstances, "the situation, and the relation of the parties, ,the obligation was entered into in view of the laws of Louisiana," and on that ground it was upheld. So, in Morgan v. New Orleans, etc., R. 00.,2 Woods, 244, a contract was executed in New York which provided for the performance of different
391
parts of the contract indifferent states,-some in New York, but largely in several southern states, including the building of a railroad in Louisiana,-for breach of the latter part of which a bill was filed" in Louisiana to rescind the contract. The plaintiff would have been entitled to that relief had the law of that state been the law of the contract; otherwise not. It was held by Mr. Justice BRADLEY that such cases must be governed each by its own circumstances; and, though the building ofa railroad in Louisiana was deemed a very important consideration of the contract, it was not held sufficient to control the whole contract, or to entitle the plaintiff to its rescission, but that it was, in that respect, governed by the law of New York, as the place where the contract wa!l made, and to: be in part performed. This case, it will be observed, was treated Jlluch in the same way as that of Jacobs v. Oredit Lyqnruilia, above cited. . The reported cases arising out of the carriage of passengers in relation to .loss of baggage, and. the limitations upon the. carrier's responsibility, show that the decisions follow the presumed intention of the parties, mther thlUl any technical rule. In Peninsular, etc., OJ. v. Shand, 3 Moore, P.·C. (N. S.) 280, an English company agreed to carry the plaintiff; an Englishman, from Southampton to Mauritius, in the defel!dallt's ship, exempting itself from liability for loss of baggage. The court held the English .law to be the intended law of the contract, and not that of France,theplace of destination. So, in Cohen v. SouthEa&ern Ry. 00., 2 Exch. Div. 253, the plaintiff, an Englishman, took a ticket. from an English railroad company, at Boulogne, for a passage to London, and his baggage was lost by negligence in the Channel. Counsel agreed that it was an English contract, but the court intimate that, a8 regards any la88 that might have happened within French terriJmy, the French law would have controlled. In Brown v. Railroad 00.,83 Pa. St. 816, the plaintiff bought a ticket in Philadelphia for a passage to Atlantic City, over the Camden Railroad, a New Jersey corporation. His trunk was lost. On the trial it was held that the law of New Jersey governed, and that the defendants were not entitled to a limitation of damages to $300, under the Pennsylvania statutes, merely because the ticket was bought in Philadelphia, and the contract made there. In Ourtis v. Delaware, L. k W. R. 00.,74 N. Y. 116, it was similarly held, where the plaintiff took passage at Scranton, Pennsylvania, for New York city, and his trunk was lost after its arrival in New York city, that the restriction of the Pennsylvania state statutes was notapplicable, and that the contract should be governed by the law of New York, where the negligence happened, and where the baggage was to be delivered. In these several cases, concerning passengers' baggage. though there is no extended discussion of principles, there is an evident disposition to regard the' law of the place where the negligence occurred as the law impliedly intended by the parties to govern that part of the contract. From the later English authorities, above cited, it is apparent that
__ u
_
392
REPORTER.
the "law of the fla,g," so called, is not even there held to represent any controlling principle of iaw. It has no application to torts, and, as respects the construction of contracts, its application depends wholly upon the intent of the parties, actual or presumed, or on the manifest justice of the case as shown by the special circumstances. The nationality of the ship is but a single circumstance, among many others, all of which are to be taken into account. Prima facie, as all agree, the validity of the contract is governed by the law .of the place where it is made, unless it is to be "wholly performed elsewhere." Lloyd v. Gttibert, L. R. 1 Q. B. 122; Jacobs v. Oredit Lyonnaw, SUpra. This contract was neither wholly nor chiefly to be performed within English jurisdiction. It was made here, and was to be chiefly performed either here or. upon the high seas. The original contract was not even made with the master, but with the resident agent of the ship-owners, and with no exceptions as to negligence. Doubtless the ordinary bill of lading fIl.ust be presumed to. have been intended. Theordimiry bill of lading was given, with the same exceptions inserted in it as regards negligence that are now usually inserted, for what they are worth, by all steamers alike, whether foreign or domestic. The exceptions exempting from the consequences of negligence have been long held void by the federal law, .as was presumptively known to both parties. Had the form of the bill of lading. been. proved to be peculiar to British ships, that would have been one circumstance to indicate that a British contract, under British law, might ha.ve been intended. But its common use by all lines. alike prevents any inference that the British law was intended from the mere presence of an exception common to all, or because it is valid in England, while invalid here. . If the situation and natural expectation of the shipper be regarded, it is not reasonable to presume that he intended to renounce the superior protection secured to him by his own law, to which he was entitled, in favor of a foreign law less to his advantage; and, as respects the master and owner of the ship, how can they be "reasonably presumed" to have been counting upon an immunity in making contracts here which is denied to our own ships, when the contract is silent on the subject? In the language of TURNER, L. J., above quoted, "he owed a temporary allegiance here, and must he understood to submit to the law here prevailing, and to agree to its action on his contract." In the cases of Lloyd v. Guibert and The Gaetano, above referred to, a long array of special considerations, drawn from the general experience, convenience, or necessities of commerce, as respects the questions there presented, sustained the conclusion of the court, which, in the former case, was in accord, and in the latter was certainly not discordant, with the general maritime law. In the present case no such circumstance exists, and the exemption from liability claimed is directly opposed to the immemorial law of the seas, and is so contrary to natural justice and expediency that, even where the exemption is upheld at all, it is under so high disfavor that every intendment is made against it by construction; and, in the federal courts, it is held so unreasonable as to be deemed ex-
393
totted without the shipper's real assent, and void. In, the federal courts, at least, it would therefore seem to be impossible to hOld that the parties can be "reasonably presumed" to have intended to adopt a foreign law in order to uphold a stipulation which is so unreasonable as to be deemed extorted, and void. As a question of fact and law, I must hold, as was intimated by Mr. Justice BLATCIlFORD in the case of The Montana, 22 Fed. Rep. 715, 728, that there is "nothing in these contracts of affreightment to indicate any contracting in view of any other law than the recognized law of such forum in the United States as should have cognizance of suits on the contracts." In one aspect the question is one of evidence and procedure, whlchis always governed by the law of the forum. The carrier is liable for unless he establishes some contract of exemption, and the suffiCiency of the proof of such a contract must be judged by the law of the forum. Ordinarily, doubtless, proof of the acceptance by the shipper of theshipping rl;Jceipt or bill oflading, without objection, is sufficient; because tM lawgen'erally 'implies therefrom an assent to its terms. But this rule not without familial' exceptions; and where, under special circumstances, such assent is negatived, or is not implied by the law; the contract is not proved. Whether assent is implied by the law or not dependa uj>bn the lex fori. Huwh. Carr. § 45'. In some of the states it is the settled law that no assent to any limitation of the common-law liability of carriers is to be implied from the mere acceptance of the bill oflading,withoutfurther proof. Hutch. Carr. § 240, notl;lj .Pield (h., 71 Ill. 458; Gainea v. Union 2tan8p.,etc., 06.,28 Ohio St: 418. And such seems to be the federal law, as regards any ibiplied assent to lltipulations exempting from the consequp.noos of negligence, which are deeD;led extorted from the public without any real assent. " Thus, in Railroad (h.v. Lockwood, 17 Wall. 357, 379, the court saYl "The carrier and his customer do not stand on a footing of equality. The latter only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading or sign any paper the carrier prE>sents; often, indeed, without knowing what 'the one or the other contains. .In most cases, he has no alternative hut to do this, or abandon· his III . lie III The inequality of the parties, the compUlsion under which the customer is placed, and the obligations of the carrier totbe public, operate with full force to divest the transaction of validity."
is
The same language, in effect, is used in ExpreB8 (h. v. addwell, 21 Wall. 264, 266. In the case of The Momalla, 22 Fed. Rep. 715, 727, Mr. Justice BLATCltFOIl.D,in reviewing the results of the supreme court decisions, says that "the carrier cannot be permitted to stipulate for immunity for the negligence of his servants. The of a carrier is a public one, and those .W'Po. employ the carrier. have no real freedom of choice, and the carrierca'nnot be allowed to impose conditions.adverse to public pdlicy andmol'ality.'"
REPORTER. In the case of Railroad 00., v. Manufacturing 00., 16 Wall. 318, it was held. that exemptions pridted on the back of shipping receipt, though referred to in the body of the receipt as a part of the terms of shipment, were not to be presumed assented to, and were no part of the contract, because the qualifications of the carrier's responsibility were unreasonable, and the law would .not presume acquiescence in the conilitions. , InAyresv.WesternR. Corp., 14BJatchf. 9-13, WAJ.LACE,J.., observes tha,t.the,shj,pper is not to be deprived of the benefit of the common-law liability of the carrier without clear evidence of his assent. See, also, Raclce,ttv. Stickney, 27 , In RaiJ,wa/!/ 00. v. $tevfm8, ,95, U. S.. 655, 659, Mr. Justice BRADLEY, referring to the railway ,tickf;t exemptions, says: "It was not evidence. of any, cOlltract 'bY whiclil the plaintiff was to assume all the risk, and ":0lfLldnot have been it had been." , A veryB,imilar question arose in the case, of Hoadley, v. Traniportation 00., 11.5 MaS$. 304., . There an had been delivered to the defendant at fqr transportati9n, :to Lawrence,Masaachulletts, but was destroyed.at 0hicago ,intnegreat fire of 1871,witholft the defendant's had givel)Jts receipt, while fault. in depot or in transit. lll:W:; of the. cqntract .was r!lceipt did not ilP,Portassent to its exmade. tpeDlez:e ac()eptance ad:ditio,nal proo'; by the,law tof Massachusetts, 1he ''llit 'Y.8.S, brought, the; pf ,the. receipt without dis; of th.e ,and ofassent tq' aU of its sept was tiona fro,m, arising ,thrqugp :negligence. At the trial the .rewas >,witpout its d,eliyery to the ,rl'l,covereq,. the; couit, the law of Illinois governed. Upon appeal, the ruling below was reversed, on the ground that :1;h!!" of of the contract setup iuthe receipt, and that, as a question of the case was ,the law foruIll ., ,The court; say:,
valIdIty of tije UP is the saIlle in both , ,It i1tthe Illode of Apr;e8umptIon offactin one state sutlicIeJ:!,t t(oPNve assent to. thl;l &pecial oontract relied on it is be 9uffic,ient., It is as thetestIII)ony ofa witness petellt in, OIl,.El place /Jnel incompetent ,ill tile other. "
caae,sirice, by the shipper's assent is notleg!illy. implied of the bill of lading or shipping receipt, no contract, as respects Buchstipulations, is the forum. " legally proved,accorliing to Fourtli. tlIe 'above considerations, J!I. special reason why the in, any event, be adopted ill this case, is found in ,the ll,!ljudicatioQEl of.the supreme such stipulations puq1ic,policy of countrY, and are on illegal though designed to be performed elsewhere, are void,' if criniinal or illegal where made; i. if the very promtlleorconSo, in the
to
395 dition whic"h is the consideration of, .the conti-act, as distinguished from the thing to be done by the other party ,be illegal where made,-the only exceptions being cases arising under the laWs against usury; and a foreign law is never adopted by comity where it would be against the public policy of the country of the forum:; ahd prejudicial to its citizens. Story, Confl. Laws, §§ 243, 244, 324; West!. Priv. Int. Law, §§ 203,204; Miller v. Tiffany, 1 Wall. 298, 310; BlackweU v. Webster, 23 BIatch£. 537; Hydev. GoodnoW, 3 N. Y. 269. Nothing could be more unequal or prejudicial to our own citizens, or more sui'cidal in national policy, than to uphold, in favor of foreign ships, ,stipulations, as respects carriage here or upon the highsaas, which, when made by our own carriers, we declare to be against public policy, e'xtortionate, and void. As respects such stipulations, foreign ships cannot stand on any different footing from our own, nor can a. for.eign law be suffered to subvert our own law to the prejudice of our own comity demands that. Whatever force,therefore, the law ships. of the flag might ordinarily have abroad, it cannot override, in a foreign fomm, these fundamental principles of international law. This plainly appears; also,from the same author above quoted, who makes the largest claim for the law of the flag, and who elsewhere says: II Wide as the operation necessarily is which is given to the. intention of the parties to a cOl'l.tract,it is plain that it can ·have no effect uPon the question of the.legality or illegality of the thing contracted!for. No law can mit itself to be evaded, nor can it, consistently witllthe principles of interjurisp,p.ldence,sanctioI) the evasion of atoreign law., Thus,.if the be done is illegal by the law of the plar-eof the intended· perfonnanee;the contract should be held void, Wherever .it was actually enteredinllo, by all eoriits alike. Where,however, it iethe contract itself.-:..the exchange of a certain consideration, either for any or for a-certain promise-that one of the competing laws claims to forbid, the question assumes a different form. In such a case it would seem that the legality of the agreement must be decided by the law of the place where it is made. It appears clear, at any rate. that a contract by that )aw:will not be recognized or adopted by the English courts, though the converse case, where a contract was legal where made but is forbidden by English law, may often prove a more complex 0l1e. No trihunal can, of course, be called upon to sanction or enforce any agreement Which is contrary to its own notions of justice or morality."Foote, Priv. Int. Law, 287, 288. The here considered does not tou.ch the mere .perfQrmaqce of the contract, i. the mere carriage and delivery of the goods. It touches the supposed promise 'on the shipper's part, or the oonditionsexacted by the carrier" as a consideration of his undertaking the transportation, viz., that he shall not be liable for negligence in the cOU['Be of the performance ,This promise,or condition or ¢on,sideration was given of his performance, in or exacted in this country; an!!, though relating to one sense, was yet, as a promise or condition exacted here, wholly independent of the performance itself, being complete before the performance began. This case would seem to faU, therefore, clearly within the rule as laid down by the author last cited. The cases of Branley v. Southeastern R. (h., 12 C. B. (N. S.) 63, and
No
396
FEDERAl, REPORTER.
Parker v. Great Western R. 00., 11 C. B. 545, illustrate the distinction between illegality of performance and illeg81ity of the promise which is the consideration of performance. In the former case the law of France, where the contract was made, was held to determine the validity of the carrier's stipulation for increased rates on "packed parcels," though the transportation was to be partly in England, where increased charges were illegal. Any additional express stipulation inserted by our own carriers in their billsoflading adopting the foreign law as the law of the contract, would be regllrded as but an. additional extortion or evasion, designed for the same illegal end, and would not be suffered to overturn the policy of the federal law on this subject, any morfl than an express contract to abf'lolve from negligence, signed by the shipper, would do, (Railway Co. v. Steven8, 95 U. S. 655, and if such an express stipulation by our own carriers could not be. upheld in favor of our own citizens, an. implied one to the same effect, in favor of a foreign ship, if any such could be implied, is no better. In my judgment, all stipulations made here, of whatever form, secure, directly or indirectly, the exemption of the carrier from; consequences of his own negligence, whether the carrier is a domestio or a foreign ship, are equally illegal and void un:der the federal law· Phcenix 1m. 00. v. Erie &; Tramrp. Co., 117 U. S. 312. 322, 323; 8 .. C.6 Sup. Ct. Rep. 750,1176; The Hadji, 22 BIatchf. 235; S. C. 20 Fed. Rep. 875; New Jersey Steam Nav. 00. v. Merchants' Brmk, 6 How. 344. In no aspect in which I am able .to view it does the provision of the bill of lading as to negligence afford a defense, and the libelant is therefore entitled to a decree, with costs. A reference may be taken to compute the damages.
THE J.CARl. JACKSON.
HALL 'l1. THE J. CARL JACKSON.
(District Oourt, B. D. N:6'ID York. December 16.1886.) CRAMPERTY-" AN OBLIGING ADVANCE" BY PROC1'OR-CODE CIVIL FROC.
N. Y. §§The essentlaI ch aracterlstlc)qgre d' 78,74. · .... " .' . lent 0 f ch amperty IS t h e mtent to promote litigation. Therefore,where proctors in a suit in admiralty, by the ar· rest of the vessel, and stipulation given for her release, had secured the payment of the demand. and had informed the libelant that the claim was secured, and the latter afterwards, supposin,lt the money had been collected, gave to a third person. an order for the amount upon the proctors, and the latter honored and paid the order while the suit was in progress. and before evidence, that this was not for the purpose of proscollection. held, upon ecuting the suit, but was an' obliging advance only, and did not violate, in letter or in spirit, the statute against champerty and maintenance.
In Admiralty. Hyland & ZabrWkie, for libelant. Derby & Luque8, for claimant.