against a Dutch one, the collision having taken place within three miles from the coast of England. In The Amalia (Cail v. Papayanni), 1863, 1 Mo. P. C., N. S., 471, judgment affirming Lushington pronounced by Chelmsford, the British limitation of liability was applied in favour of a British ship against a Belgian one, the collision having taken place in the Mediterranean.

In Cope v. Doherty, 1858, 4 K. & J. 367, Wood; affirmed, 1858, 2 D. J. 614, Knight-Bruce and Turner; it was held that the British limitation of liability did not apply to the case of a collision between two American ships more than three miles from the British coast. This must be taken to be clear, but Wood said that if it had been averred and proved that the American law was the same as ours, he would have been competent to apply it as between Americans, but he must still have refused the limitation of liability to the delinquent Americans as against any British part owners of the American ship which was sunk: 4 K. & J. 391. The idea appears to have been that the British limitation of liability was accorded by an act of parliament which the learned judge construed as not meant to apply to collisions beyond the three-mile limit, outside which therefore the old rule of unlimited liability remained. But, supposing that it remained outside that limit as a rule of British law, the question how it could bind American delinquents seems to have been overlooked. Calling it "the general law" conduced to this result; but it should always be asked, "whose law, the law of what power, do you mean by the general law?" See above, p. 166.

§ 193. But the owners of the delinquent ship cannot plead a limitation of liability to the value of the ship and freight which is accorded by the law of the plaintiffs' flag but not by that of their own flag.

The Carl Johan, 1821, Stowell; cited in The Dundee, 1 Hagg. Adm. 113, and in The Girolamo, 3 Hagg. Adm. 186; British limitation of liability not applied in favour of Swedish ship against British. Lord Stowell said that if the law of Sweden had adopted a similar limitation of liability, it would have applied on the ground of mutuality. It would then have applied as being the law of the defendants' flag, but the remark points out the objection, from want of mutuality, to allowing the defendant to invoke the law of the plaintiff.

§ 194. In cases of collision at sea, the compulsory employment of a pilot will exempt the owners in an English court from liability for damage caused by his fault, whatever be the flags and the laws of them, on the ground that no act can be treated as a wrong in England which is not such in the defendant by the principles of English law. See § 187.

The Christiana, 1828, 2 Hagg. Adm. 183, Robinson: The Vernon, 1842, I W. Rob. 316, Lushington, who put the case on the ground of the lex fori governing the remedy, which maxim properly relates to the form of the remedy

and not to the substance of the right. See the remarks on The Milford, above p. 174. In The Neptune the Second, 1814, Dods. 467, Scott, and The Girolamo, 1834, 3 Hagg. Adm. 169, Nicholl, the collisions occurred in British territorial waters, and foreign ships were held liable notwithstanding compulsory pilotage, in the former case apparently on the ground that the master was at fault as well as the pilot, and in the latter certainly on that as one of the grounds. There was also some doubt on the then statutes, whether the exemption from liability applied in the court of admiralty or only at common law, but it is difficult to believe that every expression attributed to Sir W. Scott in The Neptune the Second is correctly reported.

§ 195. When two ships are in danger of collision at sea, the rule of the road to be followed by each is that which is common to their flags, or if at the time no rule is common to their flags, then the old rule which was once common to them.

The question about the application of the British statutory rule of the road at sea differs considerably as well from that about the application of the British statutory limitation of liability to the value of the ship and freight, as from that about the application of the British statutory exemption from liability on the ground of compulsory pilotage. From the nature of the case, any rule of the road at sea must apply to both or neither of the ships which are approaching each other, while there is no impossibility in the different parties to a collision being bound by different laws with regard to the existence of liability as depending on other considerations than the rule of the road, or with regard to the measure of liability supposing it to exist. See the quotations in § 187 from the judgment of the privy council in The Halley. Also it is a fact, and not a hasty generalization, that there was once a rule of the road at sea common to all the maritime populations of Europe. When therefore the legislature either of the United Kingdom or of any other country alters its rule of the road, it must be presumed, in the absence of expression, to intend that the old rule shall be left standing even for its own subjects, under all circumstances in which the other party to a possible collision does not possess the new rule, and the legislature in question could not claim to impose it on him.

In The Dumfries, 1856, Swabey 63, Lushington held that the old rule, and not the British statutory one, applied as between a British and a Danish ship. The decision was reversed on the facts, 1856, Swabey 125, judgment of the

privy council delivered by Patteson; the Dumfries being held to have been in the wrong, even supposing the act of parliament applied, as to which no opinion was given. In The Zollverein, 1856, Swabey 96, Lushington, a Russian ship was not allowed to defend herself against a British one by the latter's violation of the British rule. In The Chancellor (Williams v. Gutch), 1861, 14 Mo. P. C. 202, Romilly, the inapplicability of the British rule as between a British and an American ship was conceded. In The Repeater v. The Braga or Krageroe, 1865, 14 L. T., N. S., 258, Kelly, the court of admiralty of Ireland applied the British rule as between a British and a Norwegian ship, the latter being bound by virtue of a convention between the king of Norway and the queen.

In The Eclipse and The Saxonia (Hamburgh American Steamship Company v. North of Scotland Banking Company), 1862, 15 Mo. P. C. 262, 1 Lush. 412; judgment affirming Lushington delivered by Romilly; the British statutory rule was held not to apply as between a British and a foreign vessel in collision at sea within three miles from the coast of England, not even in the Solent, between the Isle of Wight and the mainland of Hampshire.

§ 196. Where the defendant has tortiously had the use of the plaintiff's money or property in a given country, interest on the value must be allowed according to the rate of that country, and judgment given for the sum which will produce the amount in that country at the rate of exchange.

Ekins v. East India Company, 1718, 1 P. W. 395, Cowper: affirmed, 1718, 2 Bro. P. C. 382. See below, §§ 211 and 212.

After the slave-trade had been prohibited by British legislation, but while there were still countries which had not prohibited it, a class of cases used to arise out of injuries done at sea by British officers to subjects of those countries, in the course of attempts to suppress slavetrading by them. The actions were held to lie, because the old rule of public international law permitting the slavetrade remained in force in favour of such plaintiffs, and was to that extent a rule of English law; so that the case fell under § 188, and was not inconsistent with the doctrine in § 192, that where there is no local law a defendant can only be liable according to his personal law.

Madrazo v. Willes, 1820, 3 B. & Al. 353; Abbott, Bayley, Holroyd, Best.

CHAPTER XII.

CONTRACTS.

WE now come to the doctrines accepted in England on that part of private international law which relates to contracts, and they may be entered on without further preface than what has been said in Chapter IX as to the general theory of jurisdiction and its relation to law, and what has been said in Chapter II as to modern continental doctrines on the Forms of acts, other than judicial ones, and the Intrinsic validity and effects of contracts.

Formalities of Contracts.

§ 197. Subject to § 198, the formalities required for a contract by the law of the place where it was made are sufficient for its external validity in England.

Guépratte v. Young, 1851, 4 De G. & S. 217, Knight-Bruce. See above, on p. 66, that learned judge's approval, exceptional for England, of the principle of the lex loci actus.

§ 198. But a contract, although externally perfect according to the law of the place where it was made, cannot be enforced in England unless evidenced in such manner as English law requires.

This doctrine is based on the maxim that the lex fori governs procedure, but it is far from being universally received abroad, the evidence of a contract being often deemed indistinguishable from it form. Indeed to say that a contract may be validly made without writing, but that it cannot be enforced unless evidenced by writing, appears to be a distinction without a difference, at least when the law of only one country is considered. The distinction may begin to

have a meaning when two legal systems are considered, as in this §, though even then the truth will be that while the lex loci contractus deems the contract to be both valid and enforceable, the lex fori ignores it altogether. The opinion of Boullenois was that the mode of proof, as for example whether by oral testimony or by writing, depended on the law of the place of contract, as being part of the vinculum obligationis; * and the provision of the Italian code to the same effect may be seen above, p. 38. Savigny says: "The authority of merchants' books as evidence is to be judged according to the law of the place where the books are kept. Their probativeness indeed appears to belong to the law of process, and hence to be properly subject to the lex fori. But here it is inseparably connected with the form and effect of the judicial act itself, which here must be regarded as the preponderating element. The foreigner who deals with a merchant belonging to a placc where mercantile books are probative subjects himself to its local law." This reasoning might be admitted so far as to receive the evidence of such books on the strength of the lex loci contractus; and to do so would simply amount to regarding the merchant who made the entry in his book as constituted by the lex loci contractus the agent of the other party, empowered to reduce the contract for him into writing in a certain way. But it would still remain that if oral evidence were offered which the lex fori excluded, such exclusion, being founded on the desire of preventing perjury, might claim to override any contrary rule of the lex loci contractus, not only on the ground of its being a question of procedure, but also because of that reservation in favour of any stringent domestic policy which controls all maxims of private international law.

Evidence by writing must be furnished, where required by the 4th section of the statute of frauds, though the lex loci contractus does not require it. Leroux v. Brown, 1852, 12 C. B. 801; Jervis, Maule, Talfourd.

The juridical

*Traité de la personnalité et de la réalité des Loix, t. 2, p. 459. Syst. d. heut. Röm. rechts, § 381; Guthrie's translation, p. 269. act" means only "the transaction," which is so called because it is of a nature to produce legal consequences.