[452] [453] performed, for the nonperformance of which | by the Court of Appeal, consisting of Brett, In the first case, a bill of lading, issued in This court has not heretofore had occasion v. Union Nat. Bank, 91 U. S. 406 [23: 245] The opinion in Watts v. Camors, just cited, As Lord Justice Lindley observed: "This may require a word or two of explanation. It conclusion is not at all at variance with Lloyd was there contested whether, in a charter-party v. Guibert, but rather in accordance with it. It made at New Orleans between an English is true that in that case the law of the flag pre-owner and an American charterer of an Envailed; but the intention of the parties was ad-glish ship for a voyage from New Orleans mitted to be the crucial test; and the law of the to a port on the Continent of Europe, a clause ship's flag was considered as the law intended regulating the amount payable in case of any by the parties to govern their contract, as there breach of the contract was to be considered really was no other law which they could rea- as liquidating the damages, or as a penalty sonably be supposed to have contemplated. only. Such was the question of which the The plaintiff there was English, the defendant court said that if it depended upon the intent French; the lex loci contractus was Danish; the of the parties, and consequently upon the law ship was French; her master was French, and which they must be presumed to have had in the contract was in the French language. The view, they "must be presumed to look to the voyage was from Hayti to Liverpool. The general maritime law of the two countries, and facts here are entirely different, and so is the in- not to the local law of the State in which the ference to be deduced from them. The lex loci contract is signed." The choice there was not [454] contractus was here English, and ought to pre-between the American law and the English vail unless there is some good ground to the law, but between the statutes and the decisions contrary. So far from there being such ground, of the State of Louisiana, and a rule of the the inference is very strong that the parties maritime law common to the United States and really intended to contract with reference to England. English law." L. R. 10 Q. B. Div. 540. In the remaining English case, a contract made in London between two English mercantile houses, by which one agreed to sell to the other 20,000 tons of Algerian esparto, to be shipped by a French company at an Algerian port on board vessels furnished by the purchasers at London, and to be paid for by them in London on arrival, was held to be an English contract, governed by English law; notwithstanding that the shipment of the goods in Algiers had been prevented by vis major, which, by the law of France in force there, excused the sellers from performing the contract. Jacobs v. Crédit Lyonnais, L. R. 12 Q. B. Div. 589. That result was reached by applying the general rule, expressed by Denman, J., in these words: "The general rule is, that where a contract is made in England between merchants carrying on business here, as this is but to be performed elsewhere, the construction of the contract, and all its incidents, are to be governed by the law of the country where the contract is made, unless there is something to show that the intention of the parties was that the law of the country where the contract is to be performed should prevail;" and summed up Some reliance was placed by the appellant upon the following observations of Mr. Justice Story, sitting in the circuit court: "If a contract is to be performed, partly in one country and partly in another country, it admits of a double aspect, nay, it has a double operation, and is, as to the particular parts, to be interpreted distinctively; that is, according to the laws of the country where the particular parts are to be performed or executed. This would be clearly seen in the case of a bill of lading of goods, deliverable in portions or parts at ports in different countries. Indeed, in cases of contracts of affreightment and shipment, it must often happen that the contract looks to different portions of it to be performed in different countries; some portions at the home port, some at the foreign port and some at the return port." "The goods here were deliverable in Philadelphia; and what would be an effectual delivery thereof, in the sense of the law (which is sometimes a nice question), would, beyond question, be settled by the law of Pennsylvania. But to what extent the owners of the schooner are liable to the shippers for a nonfulfillment of a contract of shipment of the master-whether they incur an absolute or a limited liability, must depend upon the nature and extent of the 46 mission, agreed to carry him from one to an- But in that case the last point stated was the contract was broken, and if broken the conse- In Hale v. New Jersey Steam Nav. Co. 15 Conn. 538, 546, goods were shipped at New York for Providence in Rhode Island or Boston in Massachusetts, on a steamboat employed in the business of transportation between New York and Providence; and an In McDaniel v. Chicago & Northwestern Rail exemption, claimed by the carrier under a pub-way Company, 24 Iowa, 412, 417, cattle translic notice, was disallowed by the Supreme Court ported by a railroad company from a place in of Connecticut, because by the then law of Iowa to a place in Illinois, under a special conNew York the liability of a common carrier tract made in Iowa, containing a stipulation could not be limited by such a notice. Chief that the company should be exempt from liaJustice Williams, delivering judgment, said: bility for any damage, unless resulting from "The question is, by what law is this contract collision or derailing of trains, were injured in to be governed? The rule upon that subject is Illinois by the negligence of the company's well settled, and has been often recognized by servants; and the Supreme Court of Iowa, this court, that contracts are to be construed Chief Justice Dillon presiding, held the case to according to the laws of the State where made, be governed by the law of Iowa, which permitunless it is presumed from their tenor that they ted no common carrier to exempt himself from were entered into with a view to the laws of the liability which would exist in the absence some other State. There is nothing in this case, of contract. The court said: "The contract either from the location of the parties or the being entire and indivisible, made in Iowa, nature of the contract, which shows that they and to be partly performed here, it must, as to could have had any other law in view than its validity, nature, obligation and interpretathat of the place where it was made. Indeed, tion, be governed by our law. And by our as the goods were shipped to be transported to law, so far as it seeks to change the common Boston or Providence, there would be the most law, it is wholly nugatory and inoperative. entire uncertainty what was to be the law of The rights of the parties, then, are to be dethe case if any other rule was to prevail. We termined, under the common law, the same as have, therefore, no doubt that the law of New if no such contract had been made." [456] York, as to the duties and obligations of common carriers, is to be the law of the case." In Dyke v. Erie R. Co. 45 N. Y. 113, 117, a passenger, traveling upon a ticket by which a railroad corporation, established in New York, and whose road extended from one place to another in that State, passing through the States of Pennsylvania and New Jersey by their per So in Pennsylvania Co. v. Fairchild, 69 IL 260, where a railroad company received in Indiana goods consigned to Leavenworth, in Kansas, and carried them to Chicago in Illinois, and there delivered them to another railroad company, in whose custody they were destroyed by fire, the Supreme Court of Illinois held that the case must be governed by the law of Indi [457] [458] ana, by which the first company was not liable for the loss of the goods after they had passed into the custody of the next carrier in the line of transit. The other cases in the courts of the several States, cited at the bar, afford no certain or satisfactory guide. Two cases, held not to be governed by a statute of Pennsylvania providIng that no railroad corporation should be liable for a loss of passenger's baggage beyond $300, unless the excess in value was disclosed and paid for, were decided (whether rightly or not we need not consider) without much reference to authority, and upon their peculiar circumstances the one case, on the ground that a contract by a New Jersey corporation to carry a passenger and his baggage from a wharf in Philadelphia across the Delaware River, in in which the States of Pennsylvania and New Jersey had equal rights of navigation and passage, and thence through the State of New Jersey to Atlantic City, was a contract to be performed in New Jersey and governed by the law of that State; Brown v. Camden & A. R. Co. 83 Pa. 316; and the other case, on the ground that the baggage, received at a town in Pennsylvania to be carried to New York City, having been lost after its arrival by negligence on the part of the railroad company, the contract, so far as concerned the delivery, was to be governed by the law of New York. Curtis v. Delaware, L. & W. R. Co. 74 N. Y. 116. The suggestion in Barter v. Wheeler, 49 N. H. 9, 29, that the question, whether the liability of a railroad corporation for goods transported through parts of two States was that of a common carrier or of a forwarder only, should be governed by the law of the State in which the loss happened, was not necessary to the decision, and appears to be based on a strained inference from the observations of Mr. Justice Story in Pope v. Nickerson, above cited. In a later case, the Supreme Court of New Hampshire reserved any expression of opinion upon a like question. Gray v. Jackson, 51 N. H. 9,39. This review of the principal cases demonstrates that according to the great preponderance, if not the uniform concurrence, of authority, the general rule, that 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, requires a contract of affreightment, made in one country between citizens or residents thereof, and the performance of which begins there, to 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 governed by the law of some other country. There does not appear to us to be anything in either of the bills of lading in the present case, tending to show that the contracting parties looked to the law of .England, or to any other law than that of the place where the contract was made. The bill of lading for the bacon and hams was made and dated at New York, and signed by [459] the ship's agent there. It acknowledges that the goods have been shipped "in and upon the steamship called Montana, now lying in the Port of New York and bound for the Port of Liverpool," and are to be delivered at Liver pool. It contains no indication that the owners of the steamship are English, or that their principal place of business is in England, rather than in this country. On the contrary, the only description of the line of steamships, or of the place of business of their owners, is in a memorandum in the margin, as follows: "Guion Line. United States Mail Steamers. New York: 29 Broadway. Liverpool: 11 Rumford St." No distinction is made between the places of business at New York and at Liverpool, except that the former is named first. The reservation of liberty, in case of an interruption of the voyage, to tranship the goods by any other steamer," would permit transhipment into a vessel of any other line, English or American. And general average is to be computed, not by any local law or usage, but "according to YorkAntwerp rules," which are the rules drawn up in 1864 at York in England, and adopted in 1877 at Antwerp in Belgium, at international conferences of representatives of the more important mercantile associations of the United States, as well as of the maritime countries of Europe. Lowndes, General Average, 3d ed. Appendix Q. The contract being made at New York, the ship owner having a place of business there, and the shipper being an American, both parties must be presumed to have submitted themselves to the law there prevailing, and to have agreed to its action upon their contract. The contract is a single one, and its principal object, the transportation of the goods, is one continuous act, to begin in the Port of New York, to be chiefly performed on the high seas, and to end at the Port of Liverpool. The facts that the goods are to be delivered at Liverpool, and the freight and primage therefor payable there in sterling currency, do not make the contract an English contract, or refer 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. Peninsular & 0. Steam Nav. Co. v. Shand, Lloyd v. Guibert and Chartered Mercantile Bank v. Netherlands India Steam Nav. Co., before cited. There is even less ground for holding the three bills of lading of the cotton to be English contracts. Each of them is made and dated at Nashville, an inland city, and is a through bill of lading, over the Louisville and Nashville Railroad and its connections, and by the Williams and Guion Steamship Company, from Nashville to Liverpool; and the whole freight from Nashville to Liverpool is to be "at the rate of fifty-four pence sterling per 100 lbs. gross weight." It is stipulated that the liabil ity of the Louisville and Nashville Railroad and its connections as common carriers "terminates on delivery of the property to the steamship company at New York, when the liability of the steamship commences, and not before;" and that "The property shall be transported from the Port of New York to the Port of Liverpool by the said steamship company, with liberty to ship by any other steamship or steamship line." And in the margin is this significant reference to a provision of the statutes of the United States, applicable to the ocean transportation only: "ATTENTION OF SHIPPERS IS CALLED TO THE ACT OF CONGRESS OF 1851; 'Any person or persons shipping oil of vitriol, [460] 4611 unslacked lime, inflammable matches [or] gun- | Re Missouri Steamship Co. 58 L. T. N. S. 377. It was argued that as each bill of lading, drawn up and signed by the carrier and assented to by the shipper, contained a stipulation that the carrier should not be liable for losses by perils of the sea arising from the negligence of its servants, both parties must be presumed to have intended to be bound by that stipulation, and must therefore, the stipulation being void by our law and valid by the law of England, have intended that their contract should be governed by the English law; and one passage in the judgment in Peninsular & O. Steam Nav. Co. v. Shand gives some color to the argument. 3 Moore, P. Č. N. S. 291. But the facts of the two cases are quite different in this respect. In that case, effect was given to the law of England, where the contract was made; and both parties were English, and must be held to have known the law of their own country. In this case, the contract was made in this country, between parties one residing and the other doing business here; and the law of England is a foreign law, which the American shipper is not presumed to know. Both parties or either of them may have supposed the stipulation to be valid; or both or either may have known that by our law, as declared by this court, it was void. In either aspect, there is no ground for inferring that the shipper, at least, had any intention, for the purpose of securing its validity, to be governed by a foreign law, which he is not shown, and cannot be presumed, to have had any knowledge of. Our conclusion on the principal question in the case may be summed up thus: Each of the bills of lading is an American and not an English contract, and, so far as concerns the obligation to carry the goods in safety, is to be governed by the American law, and not by the law, municipal or maritime, of any other country. By our law, as declared by this court, the stipulation by which the appellant undertook to exempt itself from liability for the negligence of its servants is contrary to public policy and therefore void; and the loss of the goods was a breach of the contract, for which the shipper might maintain a suit against the carrier. This being so, the fact that the place where the vessel went ashore, in consequence of the negligence of the master and officers in the prosecution of the voyage, was upon the coast of Great Britain, is quite immaterial. This conclusion is in accordance with the decision of Judge Brown in the District Court of the United States for the Southern District of New York in The Brantford City, 29 Fed. Rep. 373, which appears to us to proceed upon more satisfactory grounds than the opposing decision of Mr. Justice Chitty, sitting alone in the Chancery Division, made since this case was argued, and, so far as we are informed, not reported in the Law Reports, nor affirmed or considered by any of the higher courts of Great Britain. The question of the subrogation of the libelant to the rights of the shippers against the carrier presents no serious difficulty. From the very nature of the contract of insurance as a contract of indemnity, 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. The Potomac, 105 U. S. 630, 634 [26: 1194, 1195]; Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 321 [29: 873, 878]. In the present case, the libelant, before the filing of the libel, paid to each of the shippers the greater part of his insurance, and thereby became entitled to recover so much, at least, from the carrier. The rest of the insurance money was paid by the libelant before the argument in the district court, and that amount might have been claimed by amendment, if not under the original libel. The Charles Morgan, 115 U. S. 69, 75 [29: 316, 318]; The Gazelle, 128 U. S. 474 [ante, 496]. The question of the right of the libelant to recover to the whole extent of the insurance so paid was litigated and included in the decree in the district court, and in the circuit court on appeal; and no objection was made in either of those courts, or at the argument in this court, to any insufficiency of the libel in this particular. The appellant does, however, object that the decree should not include the amount of the loss on the cotton shipped under through bills of lading from Nashville to Liverpool. This objection is grounded on a clause in those bills of lading, which is not found in the bill of lading of the bacon and hams shipped at New York; and on the adjudication in Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312 [29: 873], that 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 effected upon them, is valid as between the carrier and the shipper, and therefore limits the right of an insurer of the goods, upon paying to the shipper the amount of a loss by stranding, occasioned by the negligence of the carrier's servants, to recover over against the carrier. But it behooves a carrier setting up such a defense to show clearly that the insurance on the goods is one which by the terms of his contract he is entitled to the benefit of. Inman v. S. C. R. Co. 129 U. S. 128 [ante, 612]. The through bills of lading of the cotton are signed by an agent of the railroad companies and the steamship company, "severally, but not jointly," and contain, in separate columns, two entirely distinct sets of "terms and conditions," the first relating exclusively to the land carriage by the railroads and their connections, and the second [462] [463] [464] to the ocean transportation by the steamship. The clause relied on, providing that in case of any loss or damage of the goods, whereby any legal liability shall be incurred, that company only shall be held answerable in whose actual custody the goods are at the time, "and the carrier so liable shall have the full benefit of any insurance that may have been effected upon or on account of said goods," is inserted in the midst of the terms and conditions defining the liability of the railroad companies, and is omitted in those defining the liability of the steamship company, plainly signifying an intention that this clause should not apply to the latter. It is quite clear, therefore, that the appellant has no right to claim the benefit of any insurance on the goods. See Evansville & Č. R. Co. v. Androscoggin Mills, 89 U. S. 22 Wall. 594, 602 [22: 724, 726]. The result of these considerations is that the decree of the Circuit Court is in all respects correct and must be affirmed. Mr. Chief Justice Fuller and Mr. Justice Lamar were not members of the Court when this case was argued, and took no part in its decision. LIVERPOOL AND GREAT WESTERN STEAM COMPANY 0. INSURANCE COMPANY OF NORTH AMERICA. [No. 6.] Appeal from the Circuit Court of the United States for the Eastern District of New York. This case was argued and decided with that of Liverpool & Great Western Steam Co. v. Phenix Ins. Co., supra, and was substantially like it, except that the through bills of lading were for transportation by the New York Central and Hudson River Railroad Company and the Guion Line Steamship Company from Buffalo in the State of New York to Liverpool via New York. The Circuit Court's findings of fact, conclusions of law and opinion are printed in 22 Blatchf. 372, and in 22 Fed. Rep. 715. Decree affirmed. [677] HEMAN B. CHAPMAN, Plff. in Err., v. ASHBEL H. BARNEY, President of the UNITED STATES EXPRESS COMPANY. (See S. C. Reporter's ed. 677-682.) Amendments discretionary-practice where no answer-amended declaration must be servedjurisdiction-citizenship—express company. 1. Amendments to the declaration in an action of assumpsit are discretionary with the court below, and its action is not reviewable by this court. 2. Where, on account of an amendment of the declaration, it remains without an answer, the plaintiff may move for a judgment for want of an answer, but a jury cannot be called and verdict entered where no issue is joined, unless for assessment of damages merely. 3. Where leave is given to file an amended declaration and the court ordered defendant to plead thereto within ten days after a service of a copy thereof, the plaintiff is not entitled to judgment without conforming to the conditions imposed by serving a copy on the defendant, and giving him the time stated in the order to plead thereto. 4. The question whether this court has jurisdiction in a case, when presented by the record, although not raised by either party, must be considered. | 5. Where jurisdiction depends upon citizenship of the parties, such citizenship, or the facts which, in legal intendment, constitute it, should be distinctly and positively averred in the pleading, or should appear in the record. 6. An express company is not a citizen of a State within the meaning of the statutes regulating juris Submitted Jan. 8, 1889. Decided March 5, 1889. IN ERROR to the Circuit Court of the United States for the Northern District of Illinois, to review a judgment for plaintiff in an action to recover money. Reversed. The facts are stated in the opinion. Mr. Robert T. McNeal for plaintiff in error. No counsel appeared for defendant in error. Mr. Justice Lamar delivered the opinion of [678] the court: In its original form, this was an action of assumpsit, brought in the court below, by the United States Express Company, alleged to have been organized under and by virtue of the Laws of the State of New York, and a citizen of that State, against Heman B. Chapman, a citizen of Illinois, to recover the sum of $14,000, in money, alleged to have been intrusted to him for delivery to a certain company at La Salle, Illinois, and converted by him to his own use. At the same term of the court in which the declaration was filed, Chapman answered, setting up two defenses, viz.: (1) nonassumpsit; and (2) nul tiel corporation. On the 8th of August, 1879, upon statutory affidavit filed on behalf of the company, a writ of attachment was issued, under which writ the marshal of the [679] district levied upon certain personal property and effects of the plaintiff in error. At the succeeding term of the court, upon motions made by the company for that purpose, leave was given it to file an amended declaration, and to change its action from assumpsit to trover; and the plaintiff in error was ruled to plead to the amended declaration within ten days after service of a copy thereof upon his attorneys. In conformity with such order, at the December Term, 1879, of the court, the plaintiff amended the declaration so as to make it, in lieu of the original, read as follows: “Ashbel H. Barney, President of the United States Express Company, a joint stock company organized under and by virtue of a Law of the State of New York, and which said company is authorized by the Laws of the State of New York to maintain and bring suits, in the name of its president, for or on account of any right of action accruing to said company, and a citizen of the State of New York, the plaintiff in this suit, by E. F. Bull and James W. Duncan, its attorneys, complains of Heman B. Chapman, a citizen of the State of Illinois," etc. After the leave to amend the declaration was given, but before the amended declaration was filed, the plaintiff in error was convicted of perjury in the Circuit Court of La Salle County, Illinois, and sentenced to imprisonment in the Joliet Penitentiary, for the term of seven years, under which sentence he was, on January 2, 1880, removed to said penitentiary, and there imprisoned until October, 1884. |