[473]

Antoine Bernard D'Autrive, in the State of
Louisiana, said one sixth part amounting to
seventy-five thousand eight hundred and forty
acres; and that, inasmuch as the said land em-
braced in said claim have [has] been already
appropriated by the United States to other pur-
poses, certificates of new location, in eighty-
acre lots, be issued to the said Mary Elizabeth
Bouligny, for her own benefit and that of her
said minor children, in lieu of said lands, to be
located at any land office in the United States,
upon any public lands subject to private entry
at a price not exceeding one dollar and twenty-
five cents per acre. The Commissioner of the
General Land Office is hereby directed to issue
said certificates of new location, in accordance
with existing regulations in such cases.

"APPROVED, March 2, 1867."

The petition set forth, that, on the 6th of
March, 1867, the petitioner's attorney filed with
the Commissioner of the General Land Office
a certified copy of said Act, and requested that
the certificates of new location named in the
Act be issued; that the Act was passed by the
Thirty-Ninth Congress, which adjourned on
the 3d of March, 1867; that, at the next session
of Congress, being the Fortieth Congress, the
latter Congress, on the 30th of March 1867,
passed the following joint resolution (No. 35,
15 Stat. at. L. 353):

"Joint Resolution, directing, the Secretary of the
Interior to suspend the execution of a Law
passed by the Thirty-Ninth Congress for the
Relief of the Heirs of John E. Bouligny.
"Be it resolved, by the Senate and House of
Representatives of the United States of America
in Congress assembled, That the Secretary of
the Interior be directed to suspend the execu-
tion of the Act entitled 'An Act for the Relief

On an order to show cauce, returnable in the general term of the court, the respondent put in an answer, setting forth that no action had been taken by the General Land Office for the purpose of carrying out and giving effect to the provisions of the Act of March 2, 1867, prior to the passage of the Joint Resolution of March 30, 1867, that, by the passage of such joint resolution, the power of the respondent to issue the certificates was suspended until the further order of Congress; that Congress had made no further order; that the Act of March 2, 1867, did not give to the relator or to the heirs of John E. Bouligny a vested right to the certificates; that, as the Act of March 2, 1867, directed the Commissioner to issue the certifi cates "in accordance with existing regulations in such cases," it would have imposed upon the respondent the exercise of an official duty, within his discretion, and not reviewable by the court; that such official duty is not a ministe rial duty; that, if the relator had acquired a vested right to the certificates under the Act, a remedy was afforded in the Court of Claims, under section 1059, to recover their value, provided the petition setting forth the claim had been presented to the court within six years after the claim first accrued; and that the petition ought to be dismissed.

The relator put in a demurrer to the answer, on the ground that it did not set up any legal defense; that the remedy in the Court of Claims, suggested by the answer, did not exist in law; that the right in the certificates, given which could not be and was not taken away by the Act of Congress, was a vested right, by the joint resolution; and that the joint reso

lution was unconstitutional and void.

The court in general term overruled the deof the Heirs of John E. Bouligny,' approved murrer, and, the relator electing to stand upon March second, eighteen hundred and sixty-rule to show cause and dismissing the petition. it, a judgment was entered, discharging the seven, until the further order of Congress.

"APPROVED, March 30, 1867;"

An opinion was delivered by the court in
general term. It held that the Act of March 2,
that Congress had made no "further order" in 1867, was not a grant, and nothing passed by
the matter; that the defendant was, on the 29th it; that the Louisiana lands named in it were
of March, 1888, and since had been, and now never possessed by the confirmees, and were
is, Commissioner of the General Land Office of not to be possessed by them; that under such
the United States; that the petitioner, on that circumstances there could be no confirmation in
day, demanded of him, as such commissioner, regard to them; that the provision for certificates
that he issue to her, for her own benefit and in lieu of them was not a grant, and nothing
that of her minor children named in the Act, passed by it, because it was wholly executory;
certificates of new location for 75,840 acres, in that, the certificates never having been prepared
eighty-acre lots, locatable at any land office in or come into existence, the effect of the joint
the United States, upon any public lands sub-resolution could, at most, only be to impair the
ject to private entry at a price not exceeding obligation of a contract, and was not the taking
$1.25 per acre; that such demand was made in of private property; that the contract supposed
writing, at the office of the said commissioner, to exist by virtue of the Act of March 2, 1867,
in Washington; that he, on the 12th of April, could not be enforced either by the Executive or
1888, refused to grant that request; that on the the courts, until the United States should grant
13th of April, 1888, she duly appealed from permission for such enforcement, nor after
the decision and refusal of the commissioner to such permission had been withdrawn; that the
the Secretary of the Interior; that the said sec-power to perform the contract, and the right
retary, on the 3d of May, 1888, approved the
decision of the commissioner; and that she had
theretofore repeatedly made application to the
Commissioners of the General Land Office to
issue said certificates of new location, and al-
ways met with a refusal to issue them.

The petition prayed that a writ of mandamus might issue to the said commissioner, directing him to execute and deliver such certificates to her.

to insist upon its performance, existed only
while such permission existed; that the relief
sought by the relator amounted to a specific
performance of the alleged contract of the
United States, by one of its officers; that this
could not be enforced when the United States
had withdrawn its consent; that a writ of man-
damus to compel the performance of an official
act by a public officer could not be employed
to enforce the specific performance by the

[474)

[475]

476]

United States of a contract; and that the re-beneficiary, a title to specific land. The present
spondent had no official duty or power in the is not such a case. What is stated by the Act
premises since the passage of the joint resolu- of March 2, 1867, to be confirmed is "the one
tion.
sixth part of the land claim" mentioned, said
one sixth amounting to 75,840 acres; but
the statute states that the land embraced in
the claim has "been already appropriated by
the United States to other purposes. There-
fore, the beneficiaries could acquire no title to
it from the United States. The Act then pro-
ceeds to provide for the issuing of certificates
of new location, not covering any part of the
75,840 acres which had been already appro-
priated by the United States to other purposes,
nor covering any specific public lands.
new lands were to be "in lieu" of the lands
lost, and were to be selected and located at
some land office and upon public lands which
were subject to private entry, and were so sub-
ject at a price not exceeding $1.25 per acre;
and the certificates were to be issued by the
Commissioner of the General Land Office "in
accordance with existing regulations in such
cases.'

The

The principal question argued at the bar was
as to the effect of the joint resolution in sus-
pending the execution of the prior Act. There
is nothing in the suggestion of the relator that
the joint resolution intended only a suspension
of the execution of the Act during the exist-
ence of the Fortieth Congress, and until that
Congress should further order. We do not
think that such is the proper construction of
the joint resolution. It suspends the execution
of the Act "until the further order of Congress,"
that is, until the further order of the legislative
body called, in section 1 of article 1 of the
Constitution, "a Congress of the United
States," consisting of a Senate and House of
Representatives, in which are declared to be
vested all legislative powers granted by the
Constitution. The joint resolution was one of
the character mentioned in section 7 of article
1 of the Constitution, to which the concur-
rence of the Senate and House of Representa- Nor did the Act of March 2, 1867, give to
tives was necessary, and which was approved the widow and children of Bouligny a vested
by the President, and took effect only on such right in the certificates of new location which
approval. It had all the characteristics and were to be issued. No certificates were pre-
effects of the Act of March 2, 1867, which be- pared for issue; no step was taken by the Com-
came a law by the approval of the President. missioner of the General Land Office towards
Until Congress should further order, the opera-issuing them; no new lands were selected or
tion of the Act of March 2, 1867, was by the
joint resolution effectually suspended.

The present case is not at all like the cases of
which Morrow v. Whitney, 95 U. S. 551 [24:
456], and Whitney v. Morrow,112 U. S. 693 [28: |
8:11, are a type. The statute involved in that
case was the Act of February 21, 1823 (c. 10,
3 Stat. at L. 724), in reference to land claims in
the Territory of Michigan. The third section
of that Act directed that patents should be is
sued to persons whose claims to land had been
regularly filed with the commissioners ap-
pointed under the Act of May 11, 1820 (c. 85,
8 Stat. L. 572), and whose claims had been fa-
vorably reported on by said commissioners;
and the statute confirmed such persons in their
claims. That was a statute confirming to per-
sons claims to specific lands, and the patents
were to issue for those very lands. The prin-
ciple established by the decisions of this court
in regard to such cases is one always to be ad-
hered to.
We do not depart from it in the
present case, but only hold that it is not appli-
cable here. The principle thus applied in
Morrow v. Whitney, supra, is, that an Act of
Congress recognizing the validity of the claim
of an individual to specific land, as against the
United States, operates to transfer to him the
interest of the United States, as effectually as
a grant could have done; and, where such in-
dividual has the possession of the land, or some
estate in it, and the United States still hold the
legal title to it, confirmation is substantially
a conveyance of an estate or right in the land
by the United States to such individual; and,
where the land has boundaries which are clearly
defined, or are capable of identification, such
confirmation perfects the claimant's title to the
very land, without the issuing of any patent
therefor. But this doctrine necessarily applies
only to a case where the United States intend,
by the statute, to transfer to, and vest in, the

located; and the whole thing remained in fieri,
and subject to the control of Congress.

The cases cited by the counsel for the relat-
or, of Fletcher v. Peck, 10 U. S. 6 Cranch, 87
[3: 162]; Dartmouth College v. Woodward, 17
U. S. 4 Wheat. 518 [4: 629]; McGee v. Mathis,
71 U. S. 4 Wall. 143 [18: 314]; and United
States v. Schurz, 102 U. S. 378 [26: 167], do
not apply to the present case. There was Lere
no contract between the United States and the
widow and children of Bouligny, in the sense
of the cases referred to. In Fletcher v. Peck,
a tract of land had been sold by the Governor
of Georgia under the authority of an Act of
the Legislature, to persons who had conveyed
it to purchasers for a valuable consideration
without notice. It was held that a subsequent
Legislature could not afterwards repeal the
Act on the ground that it had been passed
through bribery. In Dartmouth College v.
Woodward, it was held that a charter granted
to a private corporation was a contract. In
McGee v. Mathis, it was held that a direct
grant of land by the United States to a State
was a contract; and in that case the scrip had
been issued by the State, and was in the hands
of the person entitled to receive it, and for that
reason it was held that it represented land, and
that the Act under which it had been issued
could not be repealed by the State. In United
States v. Schurz, a patent for land had been
signed, sealed, perfected, and recorded, and
the power of the land department over it had
ceased, so that a writ of mandamus to the Sec-
retary of the Interior, to deliver it to the per-
son in whose favor it had been made out,
would lie.

[477]

It is also contended for the relator, that she acquired under the Act of March 2, 1867, a right which amounted to property, and of which she could not be deprived by the United States under the joint resolution, because that [478]

[397]

covers a loss by stranding or collision, although arising from the negligence of the master or crew. 4. An exception in the bill of lading of perils of the sea or other specified perils, does not exempt the carrier from liability for loss or damage from one of those perils, to which the negligence of him

self or his servants has contributed.

was not due process of law. But we are of
opinion that the cases cited on that subject by
the relator are not applicable. Inasmuch as
nothing had been done by the officers of the
land department under the Act of March 2,
1867, and no certificates had been made out,
5. The clause in a bill of lading that appellant
and the whole matter still remained executory, should not be responsible for loss or damage by the
no vested right had attached at the time of the perils of the sea, arising from negligence of the
approval of the joint resolution. Therefore, master and crew of the ship, did not relieve him
from such responsibility.
that resolution did not deprive the widow and 6. An express stipulation by any common carrier
children of any property, or right of property, for hire, in a contract of carriage, that he shall be
in violation of the Constitution. The transac-ligence of himself or his servants, is unreasonable
exempt from liability for losses caused by the neg-
tion was merely the ordinary one of a direction and contrary to public policy, and consequently
by statute to a public officer to perform a cer- void.
tain duty, and a subsequent direction to him by
statute, before he had performed that duty or
had entered upon its performance, not to per-
form it. Williams v. Lincoln Co. 35 Maine,
345; Butler v. Palmer, 1 Hill, 324; Hampton
v. Com. 19 Pa. 329; Sedgwick, Stat. & Const.
Law, Pomeroy's notes, 2d ed. 112.

But if the contention of the relator, that the provisions of the Act of March 2, 1867, amounted to a contract between the United States and the widow and children, were correct, that very fact would show that the relief here sought could not be granted to the relator. She prays for a writ of mandamus against the Commissioner of the General Land Office, to issue and deliver to her the certificates of new location; but in case her claim were in fact founded on contract, her demand for relief would substantially amount to a prayer that the United States be decreed specifically to perform the contract. No jurisdiction is given by any statute to the Supreme Court of the District of Columbia of a suit against the United States or a public officer for the specific performance of a (contract made by the United States.

On the whole case, we are of opinion that the judgment of the Court below, in general term, must be affirmed.

THE LIVERPOOL AND GREAT WEST-
ERN STEAM COMPANY (Limited), Appt.,

v.

THE PHENIX INSURANCE COMPANY.

upon mercantile law and not upon local statute or 7. On this subject, as on any question depending usage, the Courts of the United States are not bound by decisions of the courts of the State. country so far only as it has been adopted by the 8. The general maritime law is in force in this laws or usages thereof; and no rule of the general maritime law (if any exists) concerning the valid ity of such a stipulation as that mentioned, has ever been adopted in the United States or in England.

9. The courts of one country cannot take cogniz ance of the law of another without plea and proof. 10. The nature, the obligation and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view. country between citizens or residents thereof, and 11. A contract of affreightment, made in one the performance of which begins there, must be governed by the law of that country unless the parties, when entering into the contract, clearly manifest a mutual intention that it shall be gov erned by the law of some other country.

12. That the goods were to be delivered at Liver. there in sterling currency, do not make the conpool, and the freight and primage were payable tract an English contract, or reter to the English law the question of the liability of the carrier for the negligence of the master and crew in the course of the voyage.

13. Each of the bills of lading in this case is an American and not an English contract, and, so far as concerns the obligation to carry the goods in and not by the law, municipal or maritime, of any safety, is to be governed by the American law, other country. That the vessel was stranded on the coast of Great Britain is immaterial.

14. The insurer, upon paying to the assured the amount of a loss, total or partial, of the goods insured, becomes, without any formal assignment or any express stipulation to that effect in the policy, subrogated in a corresponding amount to the assured's right of action against the carrier, or other person responsible for the loss, and in a court of admiralty may assert in his own name that right of the shipper.

15. A stipulation in a bill of lading that a carrier, when liable for a loss of the goods, shall have the benefit of any insurance that may have been effect(See S. C., The Montana, Reporter's ed. 397-464.) ed upon them, is valid and limits the right of an insurer of the goods, upon paying the loss, to Jurisdiction-owner of ship is common carrier recover over against the carrier: but a carrier set-loss by stranding-exception in bill of lad-ting up such a defense must show clearly that the insurance on the goods is one to the benefit of which ing-does not exempt carrier from liability by the terms of his contract he is entitled. for negligence of master or crew-stipulation [No. 5.] against responsibility for negligence of servants is void when this court not bound by state decisions-maritime law-foreign lawlex loci-contract of affreightment-place of delivery-American contract-right of insurer to be subrogated on paying loss-stipulation that carrier may have benefit of insurance.

1. The jurisdiction of this court to review the de-
cree of the circuit court is limited to questions of
law, and does not extend to questions of fact.
2. The owner of a general ship, carrying goods

for hire in internal, coasting or foreign commerce,
is a common carrier with the liability of an insurer
against losses, except from irresistible causes-as
the act of God and public enemies.

3. Collision or stranding is a peril of the seas; and
a policy of insurance against perils of the seas

Argued Nov. 8, 9, 1887. Decided March 5, 1889.

APPEAL from a decree of the Circuit Court

of the United States for the Eastern Dis

trict of New York, against the appellant, a
steamship company, upon a libel in admiralty
by an insurance company to be subrogated to
the rights of owners of goods shipped on appel-
lant's steamship and lost or damaged by strand-
ing by reason of the negligence of her master
and officers. Affirmed.

See S. C. below, 22 Blatchf. 372.
The facts are stated in the opinion.
Messrs. Franklin A. Wilcox and Ste-
phen P. Nash, for appellant:

The steamship owner had the right to limit | The_Scotland, 105 U. S. 24 (26: 1001); Story, or exempt himself from liability by contract Confl. Laws, 386. for loss or damage to cargo caused by error of judgment or neglect of the master or mariners of the vessel on a foreign voyage.

Mr. William Allen Butler, for appellee: The facts, as found, sustain the conclusion of law that the stranding and the resulting loss and damage were due to the negligence of the master and officers.

Mynard v. Syracuse B. & N. Y. R. Co. 71 N. Y. 184; Spinetti v. Atlas Steamship Co. 80 N. Y. 71; Maving v. Todd, 1 Stark. 72; Leeson The Abbotsford, 98 U. S. 440 (25: 168); The v. Holt, 1 Stark. 186; York, N. & B. R. Co. v. Benefactor, 102 U. S. 214 (26: 157); The Adri Crisp, 14 C. B. 527; Taubman v. Pacific Steamatic, 103 U. S. 730 (26: 605); The Annie LindsNav. Co. 26 L. T. N. S. 704; The Duero, L. R. ley, 104 U. S. 187 (26: 717); Merchants Ins. Co. 2 Adm. & Eccl. 396. V. Allen, 121 U. S. 67 (30: 858).

The principle decided by New York Central Railroad Company v. Lockwood, 84 U. S. 17 Wall. 357 (21: 627), has never been applied to transportation by vessels or steamboats.

Perkins v. New York Cent. R. Co. 24 N. Y. 196, 203, 216; N. J. Steam Nav. Co. v. Merchants Bank, 47 U. S. 6 How. 344 (12: 465); | Copeland v. New Eng. M. Ins. Co. 2 Met. 440; Dixon v. Sadler, 5 Mees. & W. 405; Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173; Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312 (29: 873); Dorr v. N. J. Steam Nav. Co. 4 Sandf. 136-146, 11 N. Y. 492; Smith v. N. Y. Cent. R. Co. 24 N. Y. 222; Carr v. Lancashire & Y. R. Co. 14 Eng. L. & Eq. 340; Bissell v. New York Cent. R. Co. 25 N. Y. 461; Moore v. Evans, 14 Barb. 524; Gould v. Hill, 2 Hill, 623. The ship carrier, in respect to cargo, cannot be properly classed with a railway carrier so as to preclude him from making a valid contract relieving him from risk of loss by neglect of the master and mariners.

Perkins v. New York Cent. R. Co. 24 N. Y. 196, 216.

The libelants, being presumed to have knowledge of the clauses in the bills of lading, are equitably estopped.

Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312 (29: 873); Copeland v. New Eng. M. Ins. Co. 2 Met. 442; Pars. Marine Ins. 14, 18.

It appearing that, by the provisions of certain bills of lading of the cargo in question, the carrier should have the benefit of any insurance that might have been effected upon or for account of said goods, the libelants cannot recover for such loss.

Lamb v. Camden & A. R. & T. Co. 46 N. Y. 290; Etna Ins. Co. v. Wheeler, 49 N. Y. 616; Babcock v. Lake Shore & M. S. R. Co. 49 N. Y. 491; Whitworth v. Erie R. Co. 87 N. Y. 413.

A common carrier can limit his liability by contract, even for gross negligence.

Mynard v. Syracuse, B. & N. Y. R. Co. 7 Hun, 399; Cragin v. N. Y. Cent. R. Co. 51 N. Y. 61; Lyon v. Mells, 5 East, 428; Nicholson v. Willan, 5 East, 507; Coggs v. Bernard, 2 Ld. Raym. 909, 919; Hart v. Pennsylvania R. Co. 112 U. S. 331 (28: 717).

The decisions of France, Germany and Hol. land fully support our contention.

The rights of the parties under 'the bills of lading are to be governed by the law of Great Britain and the general maritime law.

Pope v. Nickerson, 3 Story, 465; Lloyd v. Guibert, 33 L. J. N. S. Q. B. 241, 10 Jur. N. S. 949; The M. Morham, L. R. 1 Prob. Div. 43; Pritchard v. Norton, 106 U. S. 124 (27: 104); 5 Mor. Tr. 116; Ky. v. Bassford, 6 Hill, 526; Wayman v. Southard, 23 U. S. 10 Wheat. 48 (6: 253); Phillimore, International Law, 469;

The respondent below, a foreign corporation, chose voluntarily to appear, and could not object to the jurisdiction.

Shields v. Thomas, 59 U. S. 18 How. 253 (15: 368); McCormick v. Pa. Cent. R. Co. 49 N. Y. 303; Pennoyer v. Neff, 95 U. S. 714 (24: 565); Nat. Furnace Co. v. Moline M. Iron Works, 18 Fed. Rep. 863; New Orleans v. Houston, 119 U. S. 265 (30: 411).

Unless duly pleaded and proved, the law of a foreign country cannot be availed of as a defense.

Monroe v. Douglass, 5 N. Y. 447; Hull v.
Mitcheson, 64 N. Y. 639; Chapin v. Dobson, 78
N. Y. 74, 79; The Scotland, 105 U. S. 24, 29
(26: 1001, 1003).

The law of a foreign country must be proved.
Ennis v. Smith, 55 U. S. 14 How.400 (14:472);
Pierce v. Indseth, 106 U. S. 546 (27:254).
The lex fori must govern.

Pope v. Nickerson, 3 Story, 465; Lloyd v.
Guibert, 6 Best & S. 100; The Woodland, 14
Blatchf. 499; Story, Conf. Laws, 242, 280.

Where the negligence of a carrier or his servants is the direct cause of loss or damage to the goods in his charge for transportation, he is liable in damages, notwithstanding any stipulation in the contract of affreightment exempting him from such liability. Such a stipulation is unreasonable and contrary to public policy, and therefore void.

N. J. Steam Nav. Co. v. Merchants Bank, 47 U. S. 6 How. 344,383 (12:465); Mich. Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318 (21:297); New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357 (21:627); Ogdens. burgh & L. C. R. Co. v. Pratt, 89 U. S. 22 Wall. 123, 134 (22:827, 831); Bank of Ky. v. Adams Exp. Co. 93 U. S. 174 (23:872); Grand Trunk R. Co. v. Stevens, 95 U. S. 655 (24:535); Phonix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 322 (29:873,878); York Mfg. Co. v. Ill. Cent. R. Co. 70 U. S. 3 Wall. 107 (18:170); Southern Exp. Co. v. Caldwell, 88 U. S. 21 Wall. 264 |(22:556).

The distinction attempted to be made between the liability of land carriers and ocean carriers is untenable.

1 Pars. Maritime Law, 173; Angell, Carriers, 89; Nugent v. Smith, L. R. I. C. P. Div. 423.

The rule as established by this court has been repeatedly applied in the circuit and district courts to contracts of affreightment by owners of vessels.

The City of Norwich, 3 Ben. 575; Nelson v. Nat. Steamship Co. 7 Ben. 341; The Colon, 9 Ben. 354; Unnecehr v. The Hindoo, 1 Fed. Rep. 627; May v. The Powhatan, 5 Fed. Rep. 376; S. C. 12 Fed. Rep. 876; Sun Mut. Ins. Co. v. Miss. Valley Transp. Co. 14 Fed. Rep. 699;

[435]

1436]

The Hadji, 22 Blatchf. 235; The Brantford | houses and other safeguards which she passed,
City, 29 Fed. Rep. 373.

Walker v. Western Transp. Co. 70 U. S. 3 Wall. 150, 152 (18:172, 173); Moore v. Am. Transp. Co. 65 U. S. 24 How. 1 (16:674); Nor-south course before passing the Skerries, and wich & N. Y. Transp. Co. v. Wright, 80 U. S. 13 Wall. 104 (20:585); The Benefactor, 103 U. S. 239 (26:351); Phanix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312 (20:873).

In the present case, the circuit court has found as facts: "The Montana was an ocean steamer, built of iron, and performed regular service as a common carrier of merchandise In the findings of fact, the circuit court after and passengers between the Ports of Liverpool, stating, in much detail, the course of the ship's England, and New York, in the line commonvoyage, the conduct of her master and officers, ly known as the Guion Line. By her, and by the position and character of the various light-other ships in that line, the respondent was