Mr. Howard Mansfield for petitioner.
Mr. Justice Holmes delivered the opinion of the court:
This is an action for the loss of a hand through a defect in machinery, in connection with which the defendant in error, the plaintiff, was employed. The plaintiff had noticed the defect and reported it, and, according to his testimony, had been promised that it should be repaired or replaced as soon as they had time, and he had been told to go on in the meanwhile. The jury was instructed that if that was what took place, the defendant company assumed the risk for a reasonable time, and, in effect, that if that time had not expired, the plaintiff was entitled to recover. The jury found for the plaintiff. The accident took place in Cuba, and no evidence was given as to the Cuban law, but the judge held that if that law was different from the lex fori, it was for the defendant to allege and prove it, and that as it had pleaded only the general issue, the verdict must stand. 158 Fed. 144. The judgment was affirmed by a majority of the circuit court of appeals. -- L.R.A.(N.S.) --, 95 C. C. A. 539, 170 Fed. 369.
The court below went on the ground that, in the absence of evidence to the contrary, it would 'apply the law as it conceives it to be, according to its idea of right and justice; or, in other words, according to the law of the forum.' We regard this statement as too broad, and as having been wrongly applied to this case. [222 U.S. 473, 478] It may be that, in dealing with rudimentary contracts or torts made or committed abroad, such as promises to pay money for goods or services, or battery of the person, or conversion of goods, courts would assume a liability to exist if nothing to the contrary appeared. Parrot v. Mexican C. R. Co. 207 Mass. 184, 34 L.R.A.(N.S.) 261, 93 N. E. 590. Such matters are likely to impose an obligation in all civilized countries. But when an action is brought upon a cause arising outside of the jurisdiction, it always should be borne in mind that the duty of the court is not to administer its notion of justice, but to enforce an obligation that has been created by a different law. Slater v. Mexican Nat. R. Co. 194 U.S. 120, 126 , 48 S. L. ed. 900, 902, 24 Sup. Ct. Rep. 581. The law of the forum is material only as setting a limit of policy beyond which such obligations will not be enforced there. With very rare exceptions the liabilities of parties to each other are fixed by the law of the territorial jurisdiction within which the wrong is done and the parties are at the time of doing it. American Banana Co. v. United Fruit Co. 213 U.S. 347, 356 , 53 S. L. ed. 826, 832, 29 Sup. Ct. Rep. 511, 16 A. & E. Ann. Cas. 1047. See Bean v. Morris, 221 U.S. 485, 486 , 487 S., 55 L. ed. 821, 823, 31 Sup. Ct. Rep. 703. That, and that alone, is the foundation of their rights.
The language of Mr. Justice Bradley in The Scotland (National Steam Nav. Co. v. Dyer), 105 U.S. 24 , 26 L. ed. 1001, with regard to the application of the lex fori to a case of collision between vessels belonging to different nations, and so subject to no common law, referred to that class of cases and no others, and was used only in coming to the conclusion that foreign vessels might take advantage of our limited liability act. See also The Chattahoochee, 173 U.S. 540, 550 , 43 S. L. ed. 801, 806, 19 Sup. Ct. Rep. 491. Other exceptional cases are referred to in American Banana Co. v. United Fruit Co. ubi supra, such as those arising in regions having no law that civilized countries would recognize as adequate. But as to causes of action arising in a civilized country, the disregard of the foreign law occasionally indicated by some English judges before the theory to be applied was quite worked out must be disregarded in its turn. The [222 U.S. 473, 479] principle adopted by the decisions of this court is clear. See also Dicey, Confl. L. 2d ed. 647 et seq.
We repeat that the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well- founded belief that it was a cause of action in that place. The right to recover stands upon that as its necessary foundation. It is part of the plaintiff's case, and if there is reason for doubt, he must allege and prove it. The extension of the hospitality of our courts to foreign suitors must not be made a cover for injustice to the defendants of whom they happen to be able to lay hold.
In the case at bar the court was dealing with the law of Cuba, a country inheriting the law of Spain, and, we may presume, continuing it with such modifications as later years may have brought. There is no general presumption that that law is the same as the common law. We properly may say that we all know the fact to be otherwise. Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co. 164 Fed. 869. Whatever presumption there is is purely one of fact, that may be corrected by proof. Therefore the presumption should be limited to cases in which it reasonably may be believed to express the fact. Generally speaking, as between two common- law countries, the common law of one reasonably may be presumed to be what it is decided to be in the other, in a case tried in the latter state. But a statute of one would not be presumed to correspond to a statute in the other, and when we leave common-law territory for that where a different system prevails, obviously the limits must be narrower still. Savage v. O'Neil, 44 N. Y. 298; Crashley v. Press Pub. Co. 179 N. Y. 27, 32, 33, 71 N. E. 258, 1 A. & E. Ann. Cas. 196; Aslanian v. Dostumian, 174 Mass. 328, 331, 47 L.R.A. 495, 75 Am. St. Rep. 348, 54 N. E. 845.
Even if we should presume that an employee could recover in Cuba if injured by machinery left defective through the negligence of his employer's servants, which [222 U.S. 473, 480] would be going far, that would not be enough. The plaintiff recovered, or, under the instructions stated at the beginning of this decision, at least may have recovered, notwithstanding his knowledge and appreciation of the danger, on the strength of a doctrine the peculiarity and difficulties of which are elaborately displayed in the treatise of Mr. Labatt. I Labatt, Mast. & S. chap. 22, esp. 424. To say that a promise to repair or replace throws the risk on the master until the time for performance has gone by, or that it does away with or leaves to the jury what otherwise would be negligence as matter of law, is evidence of the great consideration with which workmen are treated here, but cannot be deemed a necessary incident of all civilized codes. It could not be assumed without proof that the defendant was subject to such a rule.
There was some suggestion below that there would be hardship in requiring the plaintiff to prove his case. But it should be remembered that parties do not enter into civil relations in foreign jurisdictions in reliance upon our courts. They could not complain if our courts refused to meddle with their affairs, and remitted them to the place that established and would enforce their rights. A discretion is asserted in some cases even when the policy of our law is not opposed to the claim. The Maggie Hammond, 9 Wall. 435, 19 L. ed. 772. The only just ground for complaint would be if their rights and liabilities, when enforced by our courts, should be measured by a different rule from that under which the parties dealt.