place abroad, it was held by Wächter, in view of the diversity of local meanings attached to the word "Aufruhr," that the meaning in force in Leipzig was to prevail. To the same effect argues Westlake, citing several adjudicated cases, English and American. Yet this rule does not apply where the person first using a term selects it as one which for local reasons is familiar to his correspondent.3 from which § 436. That the place from which the term emanates is the standard is illustrated by a case reported by Gold- So of place schmidt, and cited by Bar.5 A Bremen firm contracted term emain Smithfield with an English shipmaster, in the Eng- nates. lish language, and in English form. The instrument was a bond with the usual conditional penalty. The Supreme Court at Lübeck, having taken evidence of the English law in this respect, held that the penalty was to be governed by such law, and to be treated as merely cautionary, and as in no way fixing the actual amount of the debt. Where place of perform ance is in place de view, that termines. § 437. But where there is a place of performance, whose language and usages the parties meant to adopt, then such language and usages must prevail. Thus, when money is to be paid, or goods delivered, or lands conveyed, in a foreign country, then the currency, weights, and measurements of such foreign country are to be the standards first, because such is presumed to be the intention of the parties; and second, because generally there will be no other currency, weights, or measurements in such country, by which the contract could be performed. This is expressly prescribed in the Prussian and the Austrian 8 codes. 1 Wächter, 1. c. p. 117; Savigny, 8 Exch. 361; Stapleton v. Conway, 3 viii. § 374. 2 Westlake (1858), § 209; Power v. Whitmore, 1 M. & S. 141, 150. 8 Whart. on Ev. §§ 960 et seq. Zeitsch. für das gesammte Handelsrecht, ii. p. 140. 5 P. 292. Boullenois, pp. 496-498; Story, § 270, 311, n.; Savigny, viii. 374; Bar, pp. 241, 253; Rosetter v. Cahlman, 7 A. L. R. I. 5, § 256. Atk. 727; De Wolf v. Johnson, 10 Wheat. 323. See Clayton v. Gregson, 5 Ad. & El. 302. Infra, § 514. When a contract of sale of land, so it is argued by Fiore (Op. cit. § 273), has been concluded at the domicils of the parties, we have a right to presume that they employed the language with which they were familiar, and when using terms of measurement 8 A. G. B. art. 905. is to this effect. § 438. The Civil Code of France provides: 1 "Ce qui est French law ambigu s'interprète par ce qui est d'usage dans le pays où le contrat est passé." Felix 2 holds that this does not apply to foreign contracts. But Merlin 3 thinks differently, arguing that those who contract in a state must be considered as accepting the law of such state. And Massé comes to the same conclusion, on the ground that the local law must be taken for interpretation, as there is no other law possible for the purpose. He thinks, however, that this does not apply when the place of contract is not the place of performance, or when the parties are foreigners. Distinction to sureties bond. § 439. The question of local interpretative law bears closely on the obligation of sureties on a foreign bond. “Supapplicable pose," says Judge Story,5" a contract for the payment on foreign of the debt of a third person, in a country where the law subjected such a contract to the tacit condition, that payment must first be sought against the debtor and his estate; that would limit the obligation to a mere accessorial and secondary character; and it would not be enforced in any foreign country, except after a compliance with the requisitions of the local law. Sureties, indorsers, and guarantees are therefore liable everywhere, only according to the law of the place of their contract. Their obligation, if treated by such local law as an accessorial obligation, will not any where else be deemed a prin used those terms in the sense in which they were used in such domicil, although the meaning be different from that prevalent in the place where the property is situate. If only one of the parties was domiciled in the place of the contract, but if the other party was familiar with the language of such place, and had lived there, the same conclusion results. On the other hand, as to movables, the better opinion is that terms of measurement are to follow the law of the place indicated for the consignment of goods. The measure is an act distinct from the sale, and is to be regarded as a mode of execution dependent on the law of the place where the goods are to be cipal obligation. So, if by the law of the place of a contract its obligation is positively and ex directo extinguished after a certain period by mere lapse of time, it cannot be revived by a suit in a foreign country, whose laws provide no such rule, or apply it only to the remedy. To use the expressive language of a learned judge, it must be shown, in all such cases, what the laws of the foreign country are, and that they create an obligation which our laws will enforce." 3 But this reasoning rests on the supposition that the place of contract is the place of performance. If it be not, the same rule does not necessarily apply. Thus if two persons, domiciled in a country where the Roman law prevails, enter into a contract when travelling in a country subject to the common law, which contract is to be performed in their own country, the law of the latter is to be the arbiter.4 2. Maritime Cases.5 Master's power to enlarged port. bind owner in foreign § 440. (a) Responsibility of Owners for Master. - The Roman law, which is the basis, in this connection, of our commercial system, has established special rules for the relationship of master to owner. The magister navis is the captain. The exercitor is the lessee or charterer of the ship for a voyage. The dominus is the owner. The dominus is bound by the acts of the magister, and, as to third parties, by those of the latter's deputy, though the appointment of a deputy was forbidden in the engagements between the dominus and the magister. This was required by the utilitas navigantium. In the then rudimentary state of navigation, when the means of communicating with the owner, the ship being in a distant port, were so slight, it was necessary, for the general interests of shipping, that the master's power of binding the owner should be unlimited. The superior facilities of communication, however, enjoyed in modern times, render it less necessary that such un 1 See Pothier on Oblig. n. 407; Trimbey v. Vignier, 6 C. & P. 25; S. C. 1 Bing. N. C. 151; 3 Burge, 764. 2 See Le Roy v. Crowninshield, 2 Mason R. 151; Pothier, Oblig. n. 636 to 639; Voet ad. Pand. lib. 4, tit. i. § 29, ad. finem. 3 Lord Ch. J. Eyre, Melan v. Duke of Fitz James, 1 Bos. & Pul. 141. 4 See Prentiss v. Savage, 13 Mass. 23; Brown v. Richardson, 13 Martin, 202. Supra, § 434. 5 As to common carriers in general, see infra, § 471. As to property in ships, supra, § 356. checked power should be placed in the master's hands; and now, by the present maritime law, the owner's liability for the master's wrongful acts is limited to the value of the vessel and freight. And the extent of the master's power to bind the owner ex contractu, depends upon whether the ship is in a home or foreign port. In the latter case, the necessities of commerce require far larger discretionary powers than in the former.2 Master's authority to bind owner e pends on law of flag. 4 6 § 441. As a general rule, the master's authority to bind the owner depends on the law of the country to which the ship belongs. The master's authority to bind the cargo by a contract of bottomry is to be determined by the same standard; though it may be otherwise as against insurers. But when the question, apart from the law of a particular port in which the ship may at the time be, is, what law governs a ship, the answer is, to adopt Mr. Maclachlan's words," that the flag at the mast-head is notice to all the world of the extent of such power (that of the master) to bind the owners or the freighters by his acts." And when there are several local laws under the same flag, the law of the place of registry must prevail.8 1 Phil. iv. 583; Abbott on 'Shipping, pt. 3, c. 5; The Rebecca, Ware, 188; Malpica v. McKown, 1 La. R. 259. 2 Story on Agency, § 33. Pope v. Nickerson, 3 Story R. 465; Lloyd v. Guibert, L. R. 1 Q. B. 115. See supra, § 356; infra, §§ 440, 473. In Malpica v. McKown, 1 La. R. 248; Arayo v. Currell, 1 La. R. 528, the lex loci contractus was held to determine. See The Oriental, 7 Moore P. C. 398; The Buonaparte, 8 Moore P. C. 459. As to Naylor v. Baltzell, Taney C. C. 58, see infra, § 471. According to Mr. Foote (Priv. Int. Jur. p. 386), while it is now held in England that in contracts of affreightment and bottomry bonds the parties are presumed to have contracted with reference to the ship's flag, the validity of a sale by a master, in a foreign port, of the ship or cargo, depends upon the lex loci actus. Cammell v. Sewell, 5 H. & N. 350, as has been noticed (supra, § 345), is to this effect. It is elsewhere shown that the law of the port in which a vessel is situate must govern as to liens imposed in such port. Mr. Droege v. Stuart, L. R. 2 P. C. Foote gives another reason as fol505. Supra, § 358. lows: "This law" (that of execu 66 5 Greer v. Poole, L. R. 5 Q. B. D. tory contracts), it has been deter 272. 6 Supra, § 356. mined in Lloyd v. Guibert, L. R. 1 Q. B. 115, is the law of the ship's 7 Merch. Shipping, 3d ed. 1880, §§ flag; i. e. the parties must be taken 64 et seq. p. 156. 8 Supra, § 357. to have assumed that the law of the ship's flag would govern the future French § 442. It would seem that although the master's right to hypothecate the vessel is restrained, by the English law, to Distinctive cases where personal credit is unattainable, yet he can, rule. without restriction, pledge his principals personally for repairs and furniture. The French law gives the master unlimited power of hypothecation, but limits his power to bind his principals personally, at least to the extent of the value of ship and cargo.1 § 443. (b.) General Average. - The Lex Rhodia de jactu, which is the foundation of this branch of maritime Lex Rhodia de jactu law, prescribes that when goods have been voluntarily the comthrown overboard at sea for the common benefit, the mon rule. owners of the ship and goods saved are to contribute for the pro ratâ relief of those whose property has been sacrificed. But, to incidents of the obligation, the master having no authority to undertake that the owners of the ship or cargo will do anything, except as defined by that law. But in an absolute and immediate sale, such as that in Cammel v. Sewell, the master is not required to pledge his owners to anything. No future relations between the parties are contemplated, and therefore they cannot be taken to have referred to any law to govern the future incidents of the obligation. The master simply contracts to sell the ship or cargo according to the law of the place where they are lying, and he does actually so sell them, while they are there. By the comity of nations, or, to speak more correctly, by those principles of international jurisprudence which the law of England, in common with the law of most civilized nations, adopts, a title to property which has once validly accrued according to the law of the situation is good as against all the world; and the purchaser is not to be put in a worse position because the master of the ship has carelessly or improperly mistaken or exceeded his instructions." Foote's Priv. Int. Jur. p. 336. The judgment in the Eliza Cornish, 1 Ecc. & Ad. 36, was overruled in Cammel v. Sewell, 5 H. & N. 350, where it was held that where the master of a Prussian vessel, chartered in Russia by English shippers for Hull, and wrecked on the Norway shores, sold the cargo to a purchaser who would have a good title by Norwegian law, but not by English, the lex loci was to prevail, and the sale was good. Foote's Priv. Int. Jur. p. 334. On the question of the owner's responsibility for the master, Mr. Guthrie, in a note to Savigny (p. 189), cites The Osmanli, 3 W. Rob. Adm. 198; The North Star, 29 L. J. Adm. 73, 76; Lloyd v. Guibert, L. R. 1 Q. B. 115; 35 L. J. Q. B. 74; Story, § 286; The Nelson, 1 Hagg. Adm. 161; Pope v. Nickerson, 3 Story R. 465. Bar (p. 262) urges the serious consequences if such unlimited authority be allowed to an agent. Are agents, by going abroad, to have unlimited authority? Are they, by putting to sea, to be able to ruin their principals by unlimited speculations? What is the use of having by-laws to corporations, or checks on joint-stock companies, if agents are thus unrestrained? 1 Westlake, 1858, art. 214. 2 D. 14, 2. |