shield for the consequences of his breach of a common-law or statutory duty must be governed entirely by the law of the same place which created that duty. The rights given by the lex loci delicti can only be defeated by defenses which are good under the lex loci delicti.14 By parity of reasoning, what constitutes, and the effect of, contributory negligence of passengers is governed by the lex loci delicti.15 Proof of the lex loci delicti must be made on the trial of the case, and in the absence of such proof the law of the forum will be applied on the presumption that the lex loci delicti was the same.16 Sec. 206. Rights created by foreign law should be enforced elsewhere-Exceptional rule in federal and New York courts. When a right, connected with a contract of carriage, has once been created by the appropriate law, it should be enforced everywhere, even where it would not originally have been created upon the same facts. This doctrine has been recognized as a matter of comity in numerous state court decisions, and the rights created by foreign law have been recognized as foreign facts which would be enforced.17 In one case in New York, however, it has been held that "where a great principle of com บ. 14. Railroad Co. v. Brown, 62 Ark. 254, 35 S. W. 225; Railroad Co. v. Masterson, 16 Ind. App. 323, 44 N. E. 1004; Railroad Co. v. Miller, 19 Mich. 305; Davis Railway Co., Ky. L. R. — 92 S. W. Rep. 339; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. Rep. 53; Railroad Co. v. Sprayberry, 9 Heisk. 852, 8 Baxt. 341, 35 Am. Rep. 705; Railroad Co. v. Eakin, 6 Coldw. 582; Lake Shore, etc., Ry. Co. v. Teeters, Ind. 77 N. E. Rep. 599, Ind. App. 74 affirming 15. Clark v. Russell, 97 Fed. 900, 38 C. C. A. 541; Railroad Co. v. Whitlow, 105 Ky. 1, 43 S. W. Rep. 711, 41 L. R. A. 614; Bridger v. Railroad Co., 27 S. C. 456, 3 S. E. Rep. 860, 13 Am. St. Rep. 653; Railroad Co. v. Lewis, 89 Tenn. 235, 14 S. W. Rep. 603. But see, Johnson v. Railroad Co., 91 Iowa 248, 59 N. W. 66. 16. Railroad Co. v. Gondola, 50 Neb. 906, 70 N. W. Rep. 491. 17. Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. Rep. 630; Hale v. New Jersey Steam Navigation Co., 15 Conn. 539; Railroad Co. v. Boyd, 91 Ill. 268; Railroad Co. v. Smith, 74 Ill. 197; McMillan v. American Express Co., 123 Iowa 236, 98 N. W. Rep. 629; Beard v. Railway Co., 79 Iowa 527; Powers Mercantile Co. v. Wells, Fargo & mercial law has been established, which is universally acknowledged and acquiesced in, the law announced by the courts of a single state can not overturn that principle and control the decisions of the courts of another and a distant state."18 The difficulty with that case is that no principle of commercial law can be deemed unimportant, for every one may be all-important in its own particular set of facts; hence if the doctrine announced by the New York court were accepted as correct, all questions of the Conflict of Laws would be eliminated, since every court of the forum would be prone to follow its own decisions as to the "universally acknowledged and acquiesced in" principle of commercial law. That is, however, the firmly established rule in the United States courts, especially, as we shall hereafter see, with reference to limitations of the carrier's liability,19 although once in a great while a Federal court has been known to follow the general rule stated at the beginning of this section.20 The attitude of the United States courts has been severely criticized by the Supreme Court of Pennsylvania.21 Sec. 207. Proof should be made in court of forum of what the foreign law is. In order to ascertain whether a right has been created by the foreign law, proof should be made in the court of the forum of what the foreign law is. In the absence of such proof of the foreign law, it will be presumed in the majority of states to be the same as the law of the forum, even though the law of the forum is statutory.22 In Missouri, how Co., 93 Minn. 143, 100 N. W. Rep. 735; Hartmann v. Railroad, 39 Mo. App. 88; First National Bank V. Shaw, 61 N. Y. 283; Cantu v. Bennett, 39 Texas 303. 22. Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. Rep. 630; Pierce v. Railroad Co., 120 Cal. 156, 40 L. R. A. 350, 47 Pac. Rep. 874, 52 Pac. Rep. 302; Davis v. Railway 18. Faulkner v. Hart, 82 N. Y. Co., 83 Iowa 744, 49 N. W. Rep. 413, 37 Am. Rep. 574. 19. See post, sec. 215. 20. Railway Co. v. Kavanaugh, 92 Fed. 56, 34 C. C. A. 203. 21. Forepaugh v. Railroad Co., 128 Pa. St. 217, 18 Atl. Rep. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672. 77; Hudson v. Railroad Co., 92 Iowa 231, 60 N. W. Rep. 608, 54 Am. St. Rep. 550; Meuer v. Railroad, 5 S. Dak. 568, 59 N. W. Rep. 945, 25 L. R. A. 81, 49 Am. St. Rep. 898; s. c. 11 S. Dak. 94, 75 N. W. Rep. 823, 74 Am. St. Rep. 774; Railroad . Naive, 112 Tenn. 239, ever, it has been held that, in the absence of the proof of a foreign statute, that court will not presume that a statute exists in a sister state similar to a statute in Missouri. The common law will be presumed to prevail.23 Sec. 208. Matters relating to remedy are governed by law of the forum.-The remedy afforded for the enforcement of a foreign right in such only as a state may choose to allow, and all matters relating merely to the remedy are determined by the law of the forum. Thus a limitation of the time within which suit shall be brought is governed by the law of the forum.24 It would also seem, on the authority of other than carrier cases, that, if the defense of the statute of limitations is set up, it is the statute of the forum which governs,25 unless the right has previously been extinguished by some statute having power to do so.26 In Massachusetts the question of assent on the part of the shipper to the terms of a bill of lading has been held to be one of evidence, to be determined by the law of the forum.27 But the case so holding has been expressly disapproved, and rightly, in Missouri on the ground that the sufficiency of the assent of the shipper to the contract is a matter appertaining to the creation of rights arising out of the contract, and is to be adjudged in a foreign tribunal in accordance with the law which creates the contract rights, and not the law of the forum.28 Sec. 209. A state may require care and diligence of carrier, 79 N. W. Rep. 124, 64 L. R. A. 443; National Bank of Bristol v. Railroad Co., 99 Md. 661, 59 Atl. Rep. 134, 105 Am. St. Rep. 321. 23. Nenno v. Railroad, 105 Mo. App. 540, 80 S. W. Rep. 24. 24. Express Co. v. Walker, 26 Ky. L. Rep. 1025, 83 S. W. Rep. 106. "It is well settled that whatever concerns the rights of parties, especially in matters of contract, is governed by the lex loci contractus, while the remedy, includ although contract is one for interstate carriage. Thus far we have dealt only with contracts in which no question of public policy arises, and we must now take up those contracts containing limitations of liability which may be against the public policy of a state. A state, nothwithstanding express provisions of the contract to the contrary, may require a common carrier, although in the execution of a contract for interstate carriage, to use great care and diligence in the carrying of passengers and transportation of goods, and to be liable for the whole loss resulting from negligence in the discharge of its duties. There is no difference in the application of the principle based upon the manner in which the state requires this degree of care and responsibility, whether enacted into a statute or resulting from the rules of law enforced in the state courts.29 But it should be remembered that the public policy of any one of three states. may be against limitation of the carrier's liability, namely, the state where the contract is made, the state where it is to be performed, and the state where it is sought to be enforced. Some courts have attempted to add a fourth-the state where the breach of the contract of carriage occurs-and this leads to the question whether a contract of affreightment is, as to performance, divisible or indivisible. Sec. 210. Better rule is that performance of contract of carriage is indivisible.-On principle it would seem that the carrier's contract does not vary with each jurisdiction in which it may be partly performed, for the service rendered is single; the transportation performed and the liability assumed being the measure on the one side by which the compensation to be paid on the other side is determined. Whatever is done in cantile Co. v. Wells, Fargo & Co., 93 Minn. 143, 100 N. W. 735, in which the court applied the Missouri rule without expressly so holding. 29. Pennsylvania R. Co. บ. Hughes, 191 U. S. 477, 48 L. Ed. 268, 24 Sup. Ct. R. 132; Davis v. Railroad Co., 93 Wis. 470, 67 N. W. Rep. 16, 1132, 33 L. R. A. 654, 57 Am. St. Rep. 935; Railroad Co. v. Patterson Tobacco Co., 92 Va. 670, 21 S. E. Rep. 261, 41 L. R. A. 511; affirmed in 169 U. S. 311, 42 L. Ed. 759, 18 Sup. Ct. R. 335; Railroad Co. v. Taber, 98 Ky. 503, 32 S. W. Rep. 168, 36 S. W. Rep. 18, 34 L. R. A. 685. intermediate states is a part of the single act of transportation from the place of departure to the place of destination in performance of an obligation assumed and undertaken in some one state, and which is indivisible. The obligations arising out of a contract can only be created by the laws of one state, and force and effect should be given them in conformity with the law of the state which created them. These obligations should not vary from time to time as goods pass from state to state. Having been created by the laws of one state, those obligations are facts which should be recognized as such in other states. It is a totally different question whether the courts of other states will lend their aid to enforce those facts.30 30. Liverpool, etc., Steam Co. v. Insurance Co., 129 U. S. 397, 9 Sup. Ct. R. 469, 32 L. Ed. 788; The Henry B. Hyde, 82 Fed. 681, affirmed in 90 Fed. 115, 32 C. C. A. 534, 61 U. S. App. 147; Railroad Co. v. Beebe, 174 Ill. 13, 50 N. E. Rep. 1019, 43 L. R. A. 210, 66 Am. St. Rep. 253; McDaniel v. Railway Co., 24 Iowa 412; Meuer v. Railway Co., 5 S. Dak. 568, 59 N. W. Rep. 945, 25 L. R. A. 81, 49 Am. St. Rep. 898; s. c. 11 S. Dak. 94, 74 Am. St. Rep. 774, 75 N. W. Rep. 823. In Dyke v. Erie Railway Co., 45 N. Y. 113, the court said: "The contracts before us were made in the State of New York, and between citizens of that State. The plaintiffs were actual inhabitants, and the defendant was a corporation existing by the laws of that State. The contracts were for the carriage and conveyance of the plaintiffs over the road of the defendant, between two places in the same State, to-wit, from stations on the line of the road, in the western part of the State to the city of New York. Although the route and line of the defend ant's road between the places at which the plaintiffs took their passage and their destination, passed through portions of the States of Pennsylvania and New Jersey, by the consent of those States respectively, the parties cannot be presumed to have contracted in view of the laws of those States. The contracts were single and the performance one continuous act. The defendant did not undertake for one specific act, in part performance in one State, and another specific and distinct act in another of the States named, as to which the parties could be presumed to have had in view the laws and usages of distinct places. Whatever was done in Pennsylvania, was a part of the single act of transportation from Attica or Waverly, in the State of New York, and in performance of an obligation assumed and undertaken in this State, and which was indivisible. The obligation was created here, and by force of the laws of this State, and force and effect must be given to it, in conformity to the laws of New |