CHAPTER VI. SITUS OF CONTRACTS. SECTION 34. IN GENERAL. There is not necessarily a single situs for a contract; each of the different elements of the contract may have a situs of its own. There is the locus celebrationis, or the place where the contract was entered into; the locus solutionis or the place where the contract is to be performed; and the locus considerationis, or the place where the consideration is to be given or paid. The law which is to govern the interpretation of the contract, and the law which is to govern the remedy must also be considered separately. The general subject of the situs of a contract was discussed by the Supreme Court of the United States in the case of Liverpool Steam Co. vs. Phenix Ins. Co.,1 the decision in which case was in part as follows: "It was argued in this court, as it had been below, that as the contract was to be chiefly performed on board of a British vessel and to be finally completed in Great Britain, and the damage occurred in Great Britain, the case should be determined by the British law, and that by that law the clause exempting the appellant from liability for losses occasioned by the negligence of its servants was valid. "The Circuit Court declined to yield to this argument, upon two grounds: 1st. That as the answer expressly admitted the jurisdiction of the Circuit Court asserted in the libel, and the law of Great Britain had not been set up in the answer nor proved as a fact, 1 129 U. S, 397. the case must be decided according to the law of the Federal courts, as a question of general commercial law. 2d. That there was nothing in the contracts of affreightment to indicate a 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. 22 Blatchford, 397. "The law of Great Britain, since the Declaration of Independence, is the law of a foreign country, and, like any other foreign law, is matter of fact, which the courts of this country cannot be presumed to be acquainted with, or to have judicial knowledge of, unless it is pleaded and proved. "The rule that the courts of one country cannot take cognizance of the law of another without plea and proof has been constantly maintained, at law and in equity, in England and America. Church vs. Hubbart, 2 Cranch, 187, 236; Ennis vs. Smith, 14 How., 400, 426, 427; Dainese vs. Hale, 91 U. S., 13, 20, 21; Pierce vs. Indseth, 106 U. S., 546; Ex parte Cridland, 3 Ves. & B., 94, 99; Lloyd vs. Guibert, L. R. 1, Q. B. 115, 129; S. C., 6 B. & S., 100, 142. In the case last cited, Mr. Justice Willes, delivering judgment in the Exchequer Chamber, said: 'In order to preclude all misapprehension, it may be well to add, that a party who relies upon a right or an exemption by foreign law is bound to bring such law properly before the court, and to establish it in proof. Otherwise the court, not being entitled to notice such law without judicial proof, must proceed according to the law of England.' "The decision in Lamar vs. Micou, 112 U. S., 452, and 114 U. S., 218, did not in the least qualify this rule, but only applied the settled doctrine that the Circuit Courts of the United States, and this court on appeal from their decisions, take judicial notice of the laws of the several states of the Union as domestic laws; and it has since been adjudged, in accordance with the general rule as to foreign law, that this court, upon writ of error to the highest court of a State, does not take judicial notice of the law of another State, not proved in that court and made part of the record sent up, unless by the local law that court takes judicial notice of it. Hanley vs. Donohue, 116 U. S., 1; Renaud vs. Abbott, 116 U. S., 277, 285. "The rule is as well established in courts of admiralty as in courts of common law or courts of equity. Chief Justice Marshall, delivering judgment in the earliest admiralty appeal in which he took part, said: "That the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with respect to facts, is limited to the statement made in the court below, cannot be questioned.' Talbot vs. Seeman, 1 Cranch., 1, 38. And in a recent case in admiralty, Mr. Justice Bradley said: 'If a collision should occur in British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and liabilities of the parties were concerned, provided it were shown what that law was. If not shown, we would apply our own law to the case. In the French or Dutch tribunals they would do the same.' The Scotland, 105 U. S., 24, 29. "So Sir William Scott, in the High Court of Admiralty, said: 'Upon all principles of common jurisprudence, foreign law is always to be proved as a fact.' The Louis, 2 Dodson, 210, 241. To the same effect Vol. XII.-12 are the judgments of the Judicial Committee of the Privy Council in The Prince George, 4 Moore P. C., 21, and The Peerless, 13 Moore P. C., 484. And in a more recent case, cited by the appellant, Sir Robert Phillimore said: 'I have no doubt whatever that those who rely upon the difference between the foreign law and the law of the forum in which the case is brought are bound to establish that difference by competent evidence.' The Duero, L. R., 2 Ad. & Ec., 393, 397. "It was, therefore, rightly held by the Circuit Court, upon the pleadings and proofs upon which the case had been argued, that the question whether the British law differed from our own was not open. "But it appears by the supplemental record, certified to this court in obedience to a writ of certiorari, that after the Circuit Court had delivered its opinion and filed its findings of fact and conclusions of law, and before the entry of a final decree, the appellant moved for leave to amend the answer by averring the existence of the British law and its applicability to this case, and to prove that law; and that the motion was denied by the Circuit Court, because the proposed allegation did not set up any fact unknown to the appellant at the time of filing the original answer, and could not be allowed under the rules of that court. 22 Blatchford, 402, 404. "On such a question we should be slow to overrule a decision of the Circuit Court. But we are not prepared to say that if, upon full consideration, justice should appear to require it, we might not do so, and order the case to be remanded to that court with directions to allow the answer to be amended and proof of the foreign law to be introduced. The Adeline, 9 Cranch, 244, 248; The Marianna Flora, 11 Wheat. 1, 38; The Charles Morgan, 115 U. S. 69; Merchants' Ins. Co. vs. Allen, 121 U. S. 67; The Gazelle, 128 U. S. 474. And the question of the effect which the law of Great Britain, if duly alleged and proved, should have upon this case has been fully and ably argued. "Under these circumstances, we prefer not to rest our judgment upon technical grounds of pleading or evidence, but, taking the same course as in Merchants Ins. Co. vs. Allen, just cited, proceed to consider the question of the effect of the proof offered, if admitted. "It appears by the cases cited in behalf of the appellant, and is hardly denied by the appellee, that under the existing law of Great Britain, as declared by the latest decisions of her courts, common carriers, by land or sea, except so far as they are controlled by the provisions of the Railway and Canal Traffic Act of 1874, are permitted to exempt themselves by express contract from responsibility for losses occasioned by negligence of their servants. The Ducro, L. R. 2 Ad. & Ec., 393; Taubman vs. Pacific Co., 26 Law Times (N. S.), 704; Steel vs. State Line Steamship Co., 3 App. Cas., 72; Manchester &c. Railway vs. Brown, 8 App. Cas., 703. It may therefore be assumed that the stipulation now in question, though invalid by our law, would be valid according to the law of Great Britain. "The general rule as to what law should prevail, in case of a conflict of laws concerning a private contract, was concisely and exactly stated before the Declaration of Independence by Lord Mansfield (as reported by Sir William Blackstone, who had been of counsel in the case) as follows: "The general rule, |