TOMRY.
As to the effect of the law of the flag upon the construction of a contract of af freightment, the decisions in this country as a rule are usually governed by the lex loos contractus. In The Brantford City (S. D. of N. Y.) 29 Fed. 373, 383, Brown, J., thus stat ed this rule: "The 'law of the flag' . . . does not embody any rule of legal construc tion. Literally, it is but a concise phrase to express a simple fact, namely, the law of the country to which the ship belongs, and whose flag she bears, whether it accords with the general maritime law or not. In so far, however, as the law of the flag does not represent the general maritime law, it is but the municipal law of the ship's home. It has, therefore, no force abroad, except by comity. But foreign law is not adopted by comity, unless some good reason appear in the particular case why it should be pre ferred to the law of the former. The most frequent and controlling reasons are the actual or presumed intent of the parties or the evident justice of the case arising from its special circumstances." On this ground, the law of the ship's home is applied by comity, to regulate the mutual relations of the ship, her owner, master, and crew, as among themselves ; their liens for wages, and modes of discipline ; 1 W. Rob. 35; The Enterprise, 1 Low. 455, Fed. Cas. No. 4,498 ; Covert v. The Wexford, 3 Fed. 577 ; The J. L. Pendergast, 29 Fed. 127. For the same reason it is also applied, by comity, to torts on the high seas, as between vessels of the same nation, or vessels of different nations subject to similar laws, though not if they are subject to different laws ; The Scotland, 105 U. S. 24, 26 L. Ed. 1001. In dependently of the intent of the parties, the Iaw of the flag has no application to cases of tort, as between ships or persons of dif ferent nationalities and conflicting laws ; and federal law, by which stipulations of a common carrier exempting him from the consequence of his own negligence are held to be against public policy and void, is con trolling in suits brought here upon ship ments made here on board foreign ships under bills of lading signed by foreign mas ters, though such stipulations be valid by the law of the ship's flag. The Brantford
City, 29 Fed. 373.
This case is expressly approved by the su preme court in a case upon the same point, which is the leading American case upon this branch of the subject; Liverpool & G. W. S. Co. v. Ins. Co., 129 U. S. 397, 461, 9 Sup. Ct. 469, 32 L. Ed. 788. See comments on this case by the circuit court of appeals ; Phinney v. Ins. Co., 67 Fed. 493. The con trary view, under almost identical circum stances, was held in the case of The Missouri and the doctrine of Lloyd v. Guibert was held to extend to this particular point; 41 Ch. Div. 321. Where both the law of the flag and the lex loci contractus were British, the law of England was held to govern the contract; The Carib Prince, 63 Fed. 266; The R. A. 746, affirming 56 Fed. 247. In a ship ment of goods in England, in an English vessel, on an ordinary bill of lading, the lia bility of the vessel is to be determined ac cording to the law of the place of shipment, as the law of the flag ; The Titania, 19 Fed. 101. So also where the bill of lading was made expressly subject to "a live stock con tract," and there was an express provision in that contract that all questions relating to the bill of lading should be determined by British law; The Oranmore, 24 Fed. 922. But the circuit court of appeals, in a similar case, where the bill of lading contained the "so-called flag clause" (that liability should be determined by the law of England, but there was no reference to this in the charter, made in this country), held it no evidence to modify the latter and that it was ineffective to substitute the law of the flag for the leo loci contractus with respect to the stipula tion for exemption from liability for negli gence ; The Energia, 66 Fed. 607, 13 C. C. A. 653, affirming 56 Fed. 126.