Sec. 211. Some states hold performance of contract of carriage divisible-Rights of parties to be construed by law of place where negligent breach occurs.-All the cases holding that a contract of carriage is divisible are early ones with the exception of a few cases in Pennsylvania and Kentucky. The early cases were based on a strained construction of one of Judge Story's opinions.31 The Pennsylvania court32 cites as authority for its position several prior Pennsylvania decisions and an Ohio decision which was based upon an entirely different principle,33 and the Kentucky court was evidently trying to limit the scope of the constitutional provision in Kentucky which renders void limitations of the carrier's liability.34 The rule cannot be sustained on principle and leads to absurdities.35 Sec. 212. Lex loci contractus generally governs validity of limitations of carrier's liability. By the weight of authority,

York.
was to commence in New York,
and to be fully completed in the
same State, but liable to breach,
partial or entire in the States of
Pennsylvania and New Jersey,
through which the road of the de-
fendant passed, but whether the
contract was broken, and if brok-
en, the consequences of the
breach should be determined by
the laws of this State. It cannot
be assumed that the parties in
tended to subject the contract to
the laws of the other States, or
that their rights and liabilities
should be qualified or varied by
any diversities that might exist
between the laws of those States
and the lex loci contractus."

* The performance 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."

In Pittman v. Express Co., 24 Tex. Civ. App. 595, 59 S. W. Rep. 949, id. 30 Tex. Civ. App. 626, 71 S. W. Rep. 312, the court said: "The carrier's contract does not vary with each jurisdiction in which it may be partly performed for the service rendered is single;

31. Pope v. Nickerson, 3 Story 465, Fed. Cas. No. 11,274.

32. Hughes v. Pennsylvania R. Co., 202 Pa. 222, 51 Atl. Rep. 990, 63 L. R. A. 513, 97 Am. St. Rep. 713.

33. Railroad Co. v. Sheppard, 56 Ohio St. 68, 46 N. E. Rep. 61, 60 Am. St. Rep. 732.

34. Railway Co. v. Druien, 26 Ky. L. Rep. 103, 80 S. W. Rep. 778, 66 L. R. A. 275.

35. The following cases uphold the view that the performance of a contract of carriage is divisible: Carpenter v. Railroad Co., 72 Me. 388, 39 Am. Rep. 340; Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434; Gray v. Jackson, 51 N. H. 9. 12 Am. Rep. 1; Rixford v. Smith. 52 N. H. 355, 13 Am. Rep. 42; Burnett v. Railroad, 176 Pa. St. 45, 34 Atl. Rep. 972. (This case

then, the performance of a contract of affreightment must be regarded as indivisible. Being indivisible the rights arising out of the contract are created by but one law, but the question remains, "What law creates those rights?" The same rules which we have noticed in respect of contracts of affreightment in general, also apply to contracts containing limitations of the carrier's liability. If the acts of the parties were such that it is impossible to determine what law governed in the creation of the rights arising out of the contract, a court will resort to the legal fiction that the law of the place where a contract of carriage was made, must, in the absence of proof of the intention of the parties to the contrary at the time of making the contract, be looked to for the validity (i. e., the creation) of any rights arising out of it.36

is cited in the Hughes case, but can easily be distinguished). Cappel v. Weir, 92 N. Y. Supp. 365, s. c. 90 N. Y. Supp. 394. (Not holding the Pennsylvania rule to be correct, but enforcing it on the principle of comity.)

In Hughes v. Pennsylvania R. Co., 202 Pa. 222, 51 Atl. Rep. 990, 63 L. R. A. 513, 97 Am. St. Rep. 713, Potter, J., in delivering the court's opinion, said: "Where a contract containing a stipulation limiting liability for negligence is made in one state, but with a view to its performance by transportation through or into one or more other states, we see no rea son why it should not be construed in accordance with the law of the state where its negligent breach, causing injury, occurs."

In Railway Co. v. Druien, 26 Ky. L. Rep. 103, 80 S. W. Rep. 778, 66 L. R. A. 275, the court said: "Where a contract of shipment is made to be partly performed in another state where made and partly in this state, the

agreement of the parties, if valid where made, ought to bind them as to all rights and defenses accruing under the contract in that state, although the provision could not be binding if made here. But as to that part of the contract that is to be performed in Kentucky, it will be read in the light of the laws and Constitution of this state, and be construed and applied accordingly.

That contracts to be performed partly in two states will be construed according to the laws of each of the states relating to the portions to be performed there respectively is sustained in Bishop on Contracts, sec. 1394."

36. In re Missouri Steamship Co., 42 Ch. D. 321, 58 L. J. Ch. (N. S.) 721, 61 L. T. N. S. 316; McDonald v. Railway Co., 31 Ont. R. 663; Western R. R. Co. v. Exposition Cotton Mills, 81 Ga. 522. 7. S. E. Rep. 916, 2 L. R. A. 102; Railroad Co. v. Beebe, 174 Ill. 13, 50 N. E. Rep. 1019, 43 L. R. A. 210, 66 Am. St. Rep. 253, affirming 69

Sec. 213. Presumption exists that that law applies which is most favorable to the validity of the contract.—What, then, is sufficient evidence to rebut this prima facie presumption that the lex loci contractus will govern the creation of the rights arising under a contract? In the first place, it must be presumed that the parties to a contract do not deliberately execute an agreement knowing that it is invalid. The carrier must intend to secure to himself some real protection from responsibility in the cases excepted in the bill of lading, and the shipper that he shall have this protection. "When there are several possible local laws applicable to the case, that law is to be

applied which is most favorable to the contract; or, to state the rule in other phraseology, when there is a conflict of applicatory laws, the parties are presumed to have made part of their agreement that law which is most favorable to its validity and performance.37 There are, therefore, two presumptions to apply to every question of what law governs the creation of rights arising out of a contract of carriage containing limitations of the carrier's liability for negligence: First, that the lex loci contractus will govern in the great majority of cases. Second, that the parties intended that law to govern which would give effect to all the provisions of the contract. When those two presumptions point to the same place, it is almost conclusive that the law. of that place should govern. When they neutralize each other by pointing in opposite directions, the court must then rest its decision entirely on evidence extrinsic of either presumption.

Sec. 214. Facts extrinsic of presumptive evidence may be considered by the court to determine what law governs. The extrinsic evidence on which the court will rest its decision when the two presumptions are in conflict, will vary with every given set of facts. Some inference, however, may be drawn from any combination of the following facts or other facts along the same line:

1. When the state where the contract is to be performed is the legal residence of the carrier and the actual residence of the shipper.38

37. Talbott v. Merchants' Dis- Y. Supp. 490, 4 App. Div. 584; patch Transp Co., 41 Iowa 247, 20 Am. Rep. 589; Hazel v. Railroad Co., 82 Iowa 477, 48 N. W. Rep. 926; Grand v. Livingston, 38 N. Y. Supp. 490, 4 App. Div. 584; affirmed, 158 V. Y. 688, 53 N. E. Rep. 1125; Ryan v. Railroad Co., 65 Tex. 13, 57 Am. Rep. 583.

Contra, Brockway v. Express Co., 171 Mass. 158, 50 N. E. Rep. 626; s. c. 168 Mass. 257, 47 N. E. Rep. 87.

38. Grand v. Livingston, 38 N.

affirmed, 158 N. Y. 688, 53 N. E. Rep. 1125; In re Missouri Steamship Co., 42 Ch. D. 321, 58 L. J. Ch. N. S. 721, 61 L. T. N. S. 316; Herf & Frerichs Chemical Co. v. Railroad, 100 Mo. App. 164, 73 S. W. Rep. 346; s. c., 70 Mo. App. 274; Dyke v. Erie Railway Co., 45 N. Y. 113; Liverpool, etc., Steam Co. v. Insurance Co., 129 U. S. 397, 9 Sup. Ct. R. 469, 32 L. Ed. 788.

Contra. Brockway v. Express

2. That the performance was to be had entirely in another state.39

3. That the forms of the contract or bills of lading were those used in a particular state or country.40

4. That the parties stipulated in their contract that the rights arising under it should be governed by the laws of a certain state or country. Some courts would probably hold such a stipulation conclusive, but it would seem to be more reasonable to regard such a stipulation merely as evidence, the weight of which should be determined by the court.

Thus a case may be supposed where parties both residing in A desire to enter into a contract for the carriage of goods from A to B, the contract to contain stipulations which would be void under the laws of both A and B. They thereupon cross over the line from A to C, and sign the contract at C for the carriage of goods from A to B. It seems clear that in such a case a stipulation that the rights of the parties should be governed by the laws of C should not be taken as conclusive, but merely regarded as evidence, the cogency of which should be passed upon in connection with all the other acts of the parties and circumstances surrounding the transaction.

The Federal courts, of course, and probably the courts of Nebraska, always will refuse to recognize the validity of such a stipulation as to a limitation which is opposed to their public policy.41

The inference from the first two facts could be overcome by showing that in another and supplemental contract, the parties were careful to provide that the contract should be governed by

Co., 171 Mass. 158, 50 N. E. Rep. 626; s. c., 168 Mass. 257, 47 N. E. Rep. 87.

39. Brown v. The Camden, etc., R. R., 83 Pa. St. 316; Grand v. Livingston, supra; In re Missouri Steamship Co., supra.

Contra. Brockway v. Express Co., supra.

41. The Kensington, 183 U. S. 263, 46 L. Ed. 190, 22 Sup. Ct. R. 102; Railroad Co. v. Gardiner, 51 Neb. 70, 70 N. W. 508; Railroad Co. r. Kennard, etc., Co., 59 Neb.

Contra. Brockway t'. Express 435, 81 N. W. 372; Wabash R. Co.

Co., supra.

v. Sharpe,

40. In re Missouri Steamship W. Rep. 758.

Co., supra.