effective. A consideration of those three things in reference to contracts of carriage containing only ordinary provisions for the carriage of the goods should be had separate from contracts in which the carrier's liability for negligence is sought to be limited, since the first do not contravene the public policy of a state, and the latter may. Sec. 201. Lex loci contractus will govern in the great majority of cases.-Taking up for consideration, then, those contracts in which no right of the carrier to limit his common-law liability is sought to be enforced, the general rule is that any obligation arising out of a contract is created by the law of the place where the acts are done out of which the obligation arises. This does not mean in respect of a written contract that the creation or non-creation of a right arising out of that contract must necessarily be determined by the law of the place where the signatures are actually affixed to the paper, for in the case of parties traveling on a railroad train through several states and consummating a contract thereon, it would be folly to hold that the law of that state necessarily would govern through which the parties happened to be passing at the time the contract was signed. It merely means that the acts of the parties and the surrounding circumstances in each particular case will be closely scrutinized, and, from those acts and circumstances, the court will infer that the law of some one state governed in the creation of rights arising out of that contract. In the great majority of cases, however, the acts of the parties and the surrounding circumstances are such that it would be difficult, if not impossible, to determine what law governed. A court, therefore, must resort to a legal fiction for its guidance, and the legal fiction that has been settled upon by almost all courts is that the law of the place where the contract is made must, in the absence of proof of the intention of the parties to the contrary at the time of making the contract, be looked to for the creation of, obliga 8. See the excellent summary Laws, Vol. III., for the foregoing in Beale's Cases on Conflict of principles. tions imposed by, and interpretation of any rights arising out of it.9 Sec. 202. When performance wholly within one state, the law of that state governs.-The foregoing rule being merely 9. United States.-Railway Co. 7. Kavanaugh, 92 Fed. 56, 34 C. C. A. 203. California.-Palmer v. Railroad, 101 Cal. 187, 35 Pac. Rep. 630. Connecticut.-"The rule upon that subject is well settled, and has often been recognized by this court, that contracts are to be construed acording to the law of the state where made, unless it is presumed from their tenor, that they are entered into with a view to the law of some other state." Hale . New Jersey Steam Navigation Co., 15 Conn. 539. Illinois. Railroad Co. v. Jaggerman, 115 Ill. 407, 4 N. E. Rep. 641; Railroad Co. v. Boyd, 91 Ill. 268; Railroad Co. v. Smith, 74 Ill. 197; Merchants' Dispatch Transp. Co. v. Furthmann, 119 Ill. 66, 36 N. E. 624, 41 Am. St. Rep. 265, affirming 47 Ill. App. 561; Fortier v. Pennsylvania Co., 18 Ill. App. 260. Iowa.-McMillan v. American Express Co., 123 Iowa 236, 98 N. W. Rep. 629; Beard v. Railway Co., 79 Iowa 527. Minnesota.-Powers Mercantile Co. r. Wells, Fargo & Co., 93 Minn. 143, 100 N. W. Rep. 735. Missouri.-Hartmann v. Rail road Co., 39 Mo. App. 88; Nenno v. Railroad, 105 Mo. App. 540, 80 S. W. Rep. 24. New York. The obligation of the shippers of the cargo is to be determined by the law of the place where the contract was made, not by the "law of the flag." Insurance Co. v. Force, 112 N. Y. 90, 36 N. E. Rep. 874, 40 Am. St. Rep. 576, affirming 20 N. Y. Supp. 796. In First National Bank v. Shaw, 61 N. Y. 283, grain was purchased at Toledo, Ohio, and shipped thence to certain consignees in New York. The bills of lading were assigned to the bank to secure advances made by it for the purpose of paying for the purchase, and it became important in the litigation which grew out of the transaction to show the meaning of certain words or notations written upon the face of the bills, and evidence was offered of their commercial meaning at Toledo, to which objection was made upon the ground that the contracts of affreightment were New York and not Ohio contracts. But the objection was not sustained. "The advance of the money," said the court, "was made in Ohio, the transfer of the grain took place there, and the bank, as between itself and the persons with whom it dealt, were entitled to repayment there. . . In the more general case, where a contract is made in one country and to be performed in another, it is not always easy to determine according to the authorities whether the interpretation of the words is to be governed by the law of the place where the contract is made or by that where it is to be performed. The general principle is, that the law of the place where the contract is made is to govern, unless it is positively to be performed a legal fiction for the better guidance of the court it seems reasonable that where the performance of a contract is to be had wholly within one state, the creation of the rights arising out of it should be governed by the laws of that State. And in Brown v. The Camden, etc. R. R.,10 where the contract was made with the railroad company at its wharf in Philadelphia to transport the plaintiff and his baggage from that point to Atlantic City, it was held that, as the contract was with a New Jersey company to be performed in that state, although its perform elsewhere. The fact that acts are to be done abroad under a contract does not necessarily make it a contract to be performed there, in a legal sense. Thus, it has been said that a policy of insurance executed in England on a French ship for a French owner, on a voyage from one French port to another, is to be interpreted as an English contract. Don v. Lippmann, 5 Cl. & F. 1. The true inquiry is, what was the intent of the parties? It would seem that in a case like the present, where the contract was made in Ohio, by Toledo parties, the money being advanced there and the security there, that they had in view, in employing words, their own usages, even though the goods were to be sent to another state and ultimately sold there if the advances were not repaid." Pennsylvania.-Fairchild v. Rail road, 148 Pa. St. 527, 24 Atl. Rep. co to San Antonio in Texas, the bill of lading having been given in Mexico and in the Spanish language, it was held that the carrier could not be made responsible for its loss by robbery by an armed force on the route and after he had entered the state of Texas, because it was said that the civil law in force in Mexico did not hold the carrier responsible where the subject of the bailment had been taken from him or destroyed by a vis major or robbery when perpetrated by irresistible force; 1 Domat. 484: Story on Bail., §§ 26, 458, and this being the law by which the obligation of the carrier was to be measured, he was excusable. See also, National Bank of Bristol v. Railroad Co., 99 Md. 661, 59 Atl. Rep. 134, 105 Am. St. Rep. 321. In Railway v. Kavanaugh, supra, Palmer v. Railroad, supra, Railroad v. Jaggermann, supra, Railroad v. Smith, supra, Fortier v. Pennsylvania Co., supra, and Nenno v. Railroad, supra, the question was whether the carrier assumed any liability beyond its own line by accepting goods directed to a point beyond its own line. 10. 83 Pa. St. 316. ance required the transportation of the plaintiff and his baggage across the Delaware river, its validity and effect were to be determined by the law of New Jersey and not by that of Pennsylvania. But the court made it very clear that in its opinion the contract was to be performed wholly within the State of New Jersey. That fact has been entirely lost sight of in other cases which have tried to use Brown v. The Camden, etc., R. R. as enunciating the erroneous doctrine that it is the law of the place where the breach of a contract occurs by which the mode of its fulfillment and the measure of liability for its breach must be determined.11 Sec. 203. Matters relating solely to delivery may be determined by law of place of delivery. So matters relating solely to the delivery may be determined by the law of the place of delivery while the creation of the rights relating to the carriage. itself are governed by the law of the place of contract. The decisive question in each case is whether a particular stipulation in the contract refers to matters which affect the duty of the carrier as to the mode and manner of transportation at any and every point in the journey, or whether it refers only to the carrier's duty as to the mode and manner of actual delivery at the place of destination.12 11. See Hughes v. Pensylvania R. R. Co., 202 Pa. 222, 51 Atl. Rep. 990, 63 L. R. A. 513, 97 Am. St. Rep. 713. 12. Herf & Frerichs Chemical Co. v. Railroad, 70 Mo. App. 274, 100 Mo. App. 164, 73 S. W. Rep. 346; Springs v. Railroad Co., 46 S. C. 104, 24 S. E. Rep. 166. "One of the rules applicable to the subject is that the lex loci contractus is to govern, unless it appears upon the face of the contract that it was to be performed in some other place, and then the rule of interpretation is governed by the law of that place. The place of delivery was a ma terial and important part of the contract, and until such delivery, the same was not completed and fulfilled. Upon a failure to deliver the baggage to the plaintiff, in the city of New York, there was a breach of the contract; and as the final place of performance was in that city, it would seem to follow that, within the rule laid down, the contract was to be performed, at least so far as a delivery is concerned, by the laws of New York. This certainly was to be done in a different place from where the contract was made, and it is a reasonable inference that it was in the con Sec. 204. In actions against carriers of goods, same law governs whether the form of action is assumpsit or tort.-In actions against common carriers, whether the actions are actions of assumpsit upon the contract or actions upon the case for negligence the rights and liabilities of the parties must be judged by the same standard. The form of the action concerns the remedy, but does not affect the legal obligations of the parties. In either form of action the liability of the carrier and the rights. of the shipper are based upon the contract. The carrier owes no duty to shippers except in virtue of the contracts, and the obligations for the violation and breach of which an action may be brought are only coextensive with the contracts made. When a shipper makes a contract with a common carrier, therefore, and the appropriate law has created certain rights and obligations, those rights and obligations cannot be increased or decreased by a mere change of the form of action from assumpsit to tort.13 Sec. 205. In actions for personal injuries against carriers of passengers, lex loci delicti governs-Contributory negligence governed by same law-Proof of lex loci delicti must be made. -In actions against carriers of passengers for personal injuries the rules cited in the preceding section do not apply. The law of all the states imposes more or less varying duties and obligations on carriers of passengers, irrespective of the contracts which may have been entered into by the carrier with the passengers. A passenger may, therefore, elect to disregard the contract and the rights arising out of it, and sue upon the commonlaw or statutory breach of duty by the carrier. In such case the law of the place where the injury occurs must always govern, for that law only can impose common-law or statutory duties within its territory. The carrier, of course, may plead his contract as a defense, but the question as to whether any rights were created by such contract sufficient to stand as a |