The opinion
HOUGH, Circuit Judge
(dissenting).
The only question in this ease is whether the law of the contract of passage is the law of Great Britain, Every other matter discussed is in my opinion irrelevant. The court below repeatedly ruled that British law was wholly inapplicable, and this I consider plain and prejudicial error.
On reason, this case is a good example of how the rule usually summarized as that of lex loci contractus can be pushed to an absurdity. Plaintiff below made an agreement in Boston for carriage from Montreal to Liverpool ; this court now holds that the law of such a contract is the law of Boston. By parity of reasoning, other passengers on the same vessel, between the same ports who arranged for passage in Peking or Timbuctoo, would have contracts governed by the laws of those cities, respectively. This seems to me the apex of unreason.
Nor does authority compel the result. The ruling cases are all to the effect that a contract is governed by the law with a view to which it was made. Wayman v. Southard, 10 Wheat. 1 , 6 L. Ed. 253 , early declared this, and Pritchard v. Norton, 106 U. S. 124 , 1 S. Ct. 102 , 27 L. Ed. 104 , elaborated the doctrine in a manner often followed, long admired and especially approved in Liverpool, etc., Co. v. Phenix Co., 129 U. S. 397 , 9 S. Ct. 469 , 32 L. Ed. 788 . The contract at bar was plainly made solely with reference to transportation from one British port to another, and therefore with a view to British law; this is enough, but to clinch the matter the parties agreed that that law should exclusively apply.
The Kensington, 183 U. S. 263 , 22 S. Ct. 102 , 46 L. Ed. 190 , I.cannot accept as governing, or even relating to this ease. It was there held that if a contract, though made in a foreign country, was to he performed even partially in the United States, any provision of that contract, violative of the public policy of the United States, would not be enforced by the courts of that country.
But no part of the contract at bar was to be performed in the United States, the major premise of The Kensington is here absent, so that the proposition here announced is, in substance, that all contracts formally concluded within the United States must be read, no matter what the words used, nor where the contract is to be performed, as if it must comply with our public poliey, as ascertained by whatever court tries the case. This I think quite erroneous.