280 F. 700 | 2d Cir. | 1922
(after stating the facts as above). [2] This action is on a contract — a common phrase, meaning, among other things, that it is brought to enforce rights whereof the contract is the evidence, and usually the sufficient evidence. But it is not upon any contract made between French, the broker, and the defendant. There may be such a contract, but the contract in suit is between charterer plaintiff and shipowner defendant, and no one else.
It has been assumed throughout, and is obviously true, that the lex loci contractus, or what is called in Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104, “the law of the contract,” is the law of England. Therefore the lex fori applies only to matters of remedy. For the purposes of this action defendant denies nothing, except that these plaintiffs cannot here sue to recover the claim or demand of French.
The situation presented is new in this court; though Vellore, etc., Co. v. Steengrafe, 229 Fed. 394, 143 C. C. A. 514, exhibits quite sim-
“Under long-established practice the broker in such cases in effect nominates the charterer to contract on his behalf. * * * In these cases the broker on ultimate analysis appoints the charterer to contract on his behalf, and therefore !* * * in such cases charterers can sue as trustees on behalf of the broker.” Les Affreteurs, etc., v. Walford, L. R. (1919) A. C. 801, 807.
And reasons assigned are that the charterer stipulates for payment of commission, and he does so with the full consent and concurrence of the broker. The charterer makes the charter party with regard to the broker’s remuneration, for and on behalf of the broker. Page 812. This very recent decision fully adopted Robertson v. Wait, 8 Ex. 299, the summary ruling in which case' was that under charter parties in this common form the charterers are trustees on behalf of the broker.
The ultimate and single question in this case is whether this relation established by!the law of England — i. e., by the law of the contract— is substantive 'law or merely a remedial incident. Substantive law is that portion of the law which creates rights and obligations. 37 Cyc. 508. The difference between a substantive right (which, of course, is part of substantive law) and a remedy is incapable of exact definition, as was said by Rowell, J., in Dexter v. Edmands (C. C.) 89 Fed. 467. This means that what is a right and what is a remedy sometimes depends upon the peculiar circumstances of particular litigation. Yet this difficulty attaches but to a remnant; most cases are plain. Thus it is assuredly true that a theory of law, a legal framework, which as a matter of law produces title in a given person, is a substantive right, resulting from substantive law; and equally is it true that, when one is by law a trustee, the name imports a legal title.
It follows that if, as matter of substantive law, plaintiffs become trustees of express trusts in Great Britain, and are such trustees in respect of property not solely subject to New York regulation, then whatever rights vested in them as such express trustees they can enforce in New York, even under the state statute, provided, always, that such enforcement is not in contravention of sound morals or declared public policy. But we ground decision on the holding that plaintiff’s position as trustees, and their rights as such are parts of the substantive law of England; and we make no declaration as to what would be plaintiffs’ position had these charter parties been executed in New York.
Judgment affirmed, with one bill of costs.