Page:Harvard Law Review Volume 9.djvu/407

379 CONFLICT OF LAWS. 379 the same stipulation.^ The only rule which can be affirmed is that the place of performance, like the place of making, is a fact to be considered in each case, in connection with the other facts, as evidence of the intention in regard to the governing law. Even Savigny, who maintains that the place of performance determines the law which shall govern the contract, and in deference to whose authority that is the prevailing view in Germany, rests his theory upon the inference of a voluntary submission of the parties to the law of that place ; but this inference he says is always excluded by an express declaration to the contrary.^ 4. The forum, or place where suit is brought, is a circumstance sometimes referred to as tending to show the intention of the parties. In In re Missouri Steamship Co., a claim against an in- corporated English company, in voluntary liquidation, by an Amer- ican shipper, upon a contract made in Massachusetts for damage to cargo by reason of the negligence of master and crew, the ques- tion being what law should govern a clause in the charter party exempting the owners from liability for such negligence. Lord Justice Fry, in the course of the argument, said : *' The clause is put in for the relief of the ship-owner. The natural forum for attacking an English ship-owner is England. Ought not the English law to govern ? " ^ The Lord Chancellor, Lord Halsbury, also took the same point. The argument is, that the place where a remedy for breach of the contract, or any stipulation in it, is likely to be sought, is a circumstance tending to show a mutual intention to contract with reference to the law of that place. But as a rule the parties, at the time of making a contract, do not contemplate a breach, nor do they know with any certainty in what forum a remedy for breach will be sought. It may be conceded that there is always a probability that suit will be brought at the domicil of one of the contracting parties ; but under the rules of the common law an action may be brought and prosecuted with effect in whatever jurisdiction the person of the defendant can be found,* or, in some cases, where his goods can 1 Some of the continental codes contain provisions regulating the performance of contracts, and fixing the place of performance. General German Commercial Code, Arts. 324, 325 ; Civil Code of Saxony, §§ 702-710. 2 Savigny (Guthrie's transl., 2d ed.), § 369, p. 196; § 372, p. 223. « 42 Ch. D. 321, 333. ctseq., Mr. Gillespie's note; Peahody v. Hamilton, to6 Mass, ^17. In the Roman law, according to Savigny's exi)osition, the forum would be of much 50
 * Story, Confl. (8th ed.), §§ 538, 549 ; Westlake (3d. ed.), p. 212; Bar (2d ed.), 934,