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WILLIS L. M. REESE*
Amidst the chaos and tumult of choice of law there is at least one point
on which there seems to be general agreement in the United States. This
is that choice of the applicable law should frequently depend upon the issue
involved.' The search in these instances is not for the state whose law will
be applied to govern all issues in a case; rather it is for the rule of law that
can most appropriately be applied to govern the particular issue. As a result,
situations do arise where the court must decide whether it should apply
the rules of different states to determine different issues in a single case.
This process of applying the rules of different states to determine different
issues has the forbidding name of depeqage, although it is sometimes more
colloquially referred to as "picking-and-choosing." Little consideration has
as yet been given to the proper scope of application of this process. It has
rarely attracted the attention of the courts,2 undoubtedly because in the cases
decided to date the relevant rules of the interested states have usually dif-
fered only with respect to one issue. Likewise, with some notable excep-
tions,3 the process has largely been ignored by the writers. The attempt will
be made in the pages that follow to explore some of its aspects.
First, there is the problem of definition. Depeqage can be defined broadly
to cover all situations where the rules of different states are applied to govern
different issues in the same case. It can be defined more narrowly to be
present only when the rules of different states are applied to govern different
substantive issues, and the most restrictive definition would confine the
term to situations where by applying the rules of different states to different
issues a result is reached which could not be obtained by exclusive application
of the law of any one of the states concerned. The first of these definitions
is the one that will be adopted in this article, since it is the only one broad
enough to permit discussion of the entire field. It does, however, have the
* Charles Evans Hughes Professor of Law and Director of the Parker School of
Foreign and Comparative Law, Columbia University; Reporter, Restatement (Second)
of Conflict of Laws.
1. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS ?? 145, 186, 222, 283, 291,
294, 302 (1969).
2. A striking exception is Manos v. Trans World Airlines, Inc., 295 F. Supp. 1166
(N.D. Ill. 1968), 295 F. Supp. 1171 (N.D. Ill. 1969) where the court suggested that five
issues might each be determined by the rule of a different state. See also Satchwill v.
Vollrath Co., 293 F. Supp. 533 (E.D. Wis. 1968); Long v. Pan American World Air-
ways, 16 N.Y.2d 337, 213 N.E.2d 796, 266 N.Y.S.2d 513 (1965) and the cases discussed
below in this article.
3. Wilde, Depefage in the Choice of Tort Law, 41 S. CALIF. L. REV. 329 (1968);
CAVERS, THE CHOICE-OF-LAW PROCESS 40-43 (1965) ; Cavers, Contemporary Conflicts
Law in American Perspective, 3 RECUEIL DES COURS 137-40 (1970).
4. See Babcock v. Jackson, 12 N.Y.2d 473, 481, 191 N.E.2d 279, 283, 240 N.Y.S.2d
743, 749 (1963) (per Fuld, J.).
5. See Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
6. As for example, the place of injury rule in torts and the place of making and the
place of performance rules in contracts.
7. See generally Reese, Choice of Law: Rules or Approach, 57 CORNELL L. REV. 315
(1972).
Accordingly, they could not provide courts and litigants with the desired
degree of ease of application, certainty, and predictability. In short, a willing-
ness to make a liberal use of depecage would seem a prerequisite to the
satisfactory development of narrow rules of choice of law.
In the pages that follow, attention will first be directed to situations
where, it is believed, the use of dlepecage is either appropriate or inappropriate.
Then there will be discussion of some uncertain problems, including the
difficult question whether depecage should be avoided when its use might
result in distorting the purpose of one or more of the rules applied. Finally,
consideration will be given to what will be the likely effect upon the use of
depecage of the further development of actual rules of choice of law. The
attempt will be made throughout to identify the factors which should guide
the courts in determining whether or not to use depecage. It will be submitted
that there is no single factor but rather that a number of factors should be
consulted.
12. See id. at 483, 191 N.E.2d at 284, 240 N.Y.S.2d at 750-51.
13. 55 Cal. 2d 588, 360 P.2d 906, 12 Cal. Rptr. 266 (1961).
14. RESTATEMENT (SECOND) OF CONFLICT OF LAWS ? 198, comment b (1969).
15. RESTATEMENT (SECOND) OF CONFLICT OF LAWS ? 141, comments b and f (1969).
hand side of the road even though the court applied English law to dete
all other substantive issues. It would also be inappropriate for a court to
apply depecage in a way that (a) would result in the application to each
issue of the rule of a state that has little, or no, interest in the determination
of that issue and (b) would not serve to effectuate the purpose of each of
the rules applied.
Let us take as an example a variation of Babcock v. Jackson.21 Suppose
that X is the state where the driver and guest are domiciled and where the
automobile trip is to start and end, that Y is the state where the accident
occurs and the guest is injured, that under X law the driver enjoys immunity
from tort liability to the guest and it is negligence per se to drive at more
than 50 miles per hour, and that Y has no guest-passenger statute and no
rule declaring it negligence per se to drive over a designated rate of speed.
Clearly, it would be inappropriate and, with respect to the rule as to speed
probably unconstitutional as well, for a court to find for the plaintiff by
applying the Y rule as to the liability of a driver to a guest and the X rule as
to speed, assuming that the accident occurred at a time when the auto-
mobile was being driven at a speed in excess of 50 miles per hour. Almost
surely X has a greater interest than Y in the question whether the driver
should enjoy a special immunity from tort liability to the guest.22 Contrari-
wise, Y has a greater, and probably exclusive, interest in the question of the
speed at which the automobile should be driven by Y.
Depecage is also likely to be inappropriate when it would serve to defeat
the expectations of the parties. An example is the hypothetical case mentioned
immediately above. Almost surely the driver, if he had thought about the
matter at all, would expect to have the Y rules of speed, rather than those
of X, applied to determine the propriety of his conduct in Y. Quite possibly
indeed, he would actually have been aware of the Y rule as to speed and
would have shaped his conduct accordingly. Other examples of situations
where the use of depegage would be suspect for similar reasons is where it
would lead to the invalidation of a contract or a trust.
It will be complained that these hypotheticals are all so obvious that
they border on being worthless. That they are obvious is freely admitted.
The difficulty is that it is hard to imagine situations less obvious than these
where the use of depecage would surely be inappropriate. Situations of greater
uncertainty, where much will depend upon the precise facts and upon one's
particular philosophy of choice of law, will now be discussed. Thereafter,
attention will be given to the likely effect upon depeqage of the development
of hard-and-fast rules of choice of law.
21. 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
22. Arbuthnot v. Allbright, 35 App.Div.2d 315, 316 N.Y.S.2d 391 (3d Dep't 1970),
distinguishing Kell v. Henderson, 26 App.Div.2d 595, 270 N.Y.S.2d 552 (3d Dep't 1966).
foster and preserve marital harmony, and more recently, the desire to pro
insurance companies from false claims.35 Only the last of these purposes,
if indeed it was a purpose, of the rule would be frustrated by allowing re-
covery under the policy. In any event, some indication that the rule itself
was not considered of overwhelming importance by the New Jersey courts
can be gleaned from the fact that they would not have applied it to determine
the rights and liabilities of New Jersey spouses who were involved in an
out-of-state accident. Without question, the New Jersey courts would have
held that the policy covered the husband's liability to his wife if the accident
had occurred in a state, such as Connecticut, which has abolished inter-
spousal immunity and does not qualify, as does New York, the insurance
coverage with respect to this liability.36 By way of contrast to the New Jersey
rule, the purpose of the New York statute is clearly to protect the insurer
against collusion on the part of the spouses. But it is by no means clear,
and indeed seems highly doubtful, that the statute was intended to apply
to insurance policies issued to non-New Yorkers outside of New York. Under
the circumstances, it is thought that the court correctly determined the coverage
of the policy in accordance with the literal meaning of its provisions. By
doing so, the court gave effect to the choice-of-law policy favoring protection
of the expectation of the parties, and it is by no means clear that the respective
purposes of the relevant state rules were seriously distorted if indeed they
were distorted at all.
As is well illustrated by the Jacek case, it is often difficult to ascertain
the purpose or purposes of a rule. It is often even more difficult to determine
whether this purpose or these purposes would be distorted by the application
or non-application of the rule in a case involving multistate elements. Where
such uncertainty exists, it may well be wise to subordinate the danger of
creating distortion to the achievement through the use of depe;age of other
choice-of-law values. Lillegraven v. Tengs37 is another case in point. Plain-
tiff, while a passenger on an automobile trip from Seattle to Alaska, sustained
injury in an accident in British Columbia. Rather than seeking relief against
the driver, she commenced an action in Alaska against the owner under
British Columbia's Motor Vehicle Act, which made the owner liable for
the torts of anyone driving his automobile with his consent. Alaska had no
such statute. The action was brought within Alaska's two year statute of
limitations but beyond the one year period of British Columbia. This latter
provision was contained in the same statute which imposed liability upon
the owner, and he naturally contended that it should be held to qualify the
plaintiff's right of action. This contention was rejected by the Alaska court
on the ground that the act in question contained a number of provisions, and
there was no reason to suppose that the British Columbia Legislature had
given "special consideration" to the one-year provision "upon the particular
right sought to be enforced . . ., as distinguished from other rights to which
the act was also applicable."38 Accordingly, the Alaska court concluded that
the one year provision should be treated as an ordinary statute of limitations
and that there was "no good reason" why Alaska's policy as to limitations
should give way to the differing policy of British Columbia.
It is not entirely clear that the Alaska court distorted the purpose of
the British Columbia statute by holding the owner liable without applying
the one year provision contained in the same statute. There was no distor-
tion if the only purpose of the one year provision was to protect the British
Columbia courts against the danger of being misled by stale testimony;
there was distortion if the provision was intended solely or partially to protect
the parties. The Alaska court assumed, without having made an actual inquiry,
that the statute had the latter purpose. Even so, the distortion of purpose was
probably no greater than in any case where, applying the usual rule that
forum law governs issues of limitation, a court entertains suit on a right of
action which arises under the law of another state and is barred by that
state's statute of limitations.39 The decision can further be justified on the
ground that Alaska, being the domicile of both the plaintiff and defendant,
was the state with the greatest concern in questions of fairness to them.
Let us now turn to Kilberg v. Northeast Airlines, Inc.40 where distortion
was clearly present. In that case the decedent, a New York domiciliary, had
purchased in New York a ticket from the defendant airline, which is in-
corporated in Massachusetts, for transportation from New York to Nan-
tucket, Massachusetts. The decedent was killed when the plane crashed in
Nantucket while attempting to land. An action for the recovery of damages
was brought in New York on the Massachusetts wrongful death statute,
which, as it stood at that time, limited recovery against a common carrier to
not less than $2,000 or more than $15,000. By a majority vote, the New
York Court of Appeals held that on the facts of the case the Massachusetts
limitation on damages should not be applied. To hold otherwise, in the view
of the court, would violate New York public policy, since the New York
Constitution expressly forbade a limitation on the amount of recovery for
wrongful death. The result reached, although not necessarily the reasoning
employed, has been generally applauded and has been declared constitutional
by the federal Court of Appeals for the Second Circuit in Pearson v. Northeast
Airlines, Inc.,41 a case arising out of the same airplane crash. In this latter
Such a decision by the New York court would also involve far more tha
an abuse of depecage. In the case posed, New York has no wrongful death
statute of its own and hence no rule governing the measure of recovery for
wrongful death. In order to grant unlimited recovery to the plaintiff, the
court would have to do more than apply a New York rule to determine one
issue and a Massachusetts rule to determine another. Instead, the court would
have to invent a New York rule of damages for wrongful death to apply in
the particular case. By so doing, the court would have traveled far beyond
the boundaries of depecage. It would not have confined itself to "picking-and-
choosing" among the existing rules of two or more states. It would have
created a new substantive rule of damages without any clear basis in policy
for doing so.
Another hypothetical case may serve to drive this point home. Suppose
that state X imposes strict liability upon airlines but limits the permissible
amount of recovery. State Y, on the other hand, permits unlimited recovery
but only on the basis of negligence or of intentional misconduct.44 Under these
circumstances, would it be appropriate for a Y court to permit unlimited
recovery in an action brought to recover for injuries suffered by a Y resident
in an airplane crash in X which occurred without any fault on the part of the
defendant airline? Clearly, the answer must be in the negative. One source
of objection might be that such a combination of the liability rule of X and the
recovery rule of Y would distort the purposes of both laws, since neither law
permits unlimited recovery against a defendant who is without fault. A far
more serious objection is that the Y court would not merely be picking and
choosing among existing rules. Rather, it would be creating a new rule of
substantive law for the occasion; namely, a Y rule permitting unlimited
recovery in the case of strict liability. Creation of a new rule for the purpose
of a single case is something quite different and far more likely to be objection-
able than the use of depecage.
We now turn to a situation where the use of depecage should be proper
although there might be some distortion of the purpose of one of the rules
applied. Let us assume that A and B, driver and guest-passenger who are both
domiciled in state X, are involved in an accident in state Y in which B is killed.
The accident would not have occurred if the automobile had been equipped with
a safety device required by Y law but not by that of X. The Y courts have also
held that failure to install this device is negligence per se. Both X and Y have
wrongful death statutes; the Y statute imposes limits upon the amount of
recovery while the X statute does not. Would it be appropriate under these
circumstances for an X court in a wrongful death action to hold A liable
under the Y rule but to permit unlimited recovery under the rule of X ?
In contrast to the Kilberg and Pearson cases, a holding to this effect could
not be justified on the ground that the identical result could have been attained
44. This hypothetical case is posed in Wilde, supra note 3, at 358.
those in torts and contracts, have worked badly in practice and should now be
abandoned. For the moment, all that can frequently be done is to attempt
each case to arrive at the best accommodation possible of the several choice-of-
law factors. The question is whether the courts should seek to press on fr
this stage and to develop new rules of choice of law as soon as they feel
competent to do so in the light of accumulated experience. In all probabilit
these rules-if indeed we are to have such rules-will be far more numerous
and far narrower in scope than the old. Frequently, they will be directed to a
single issue or to a small group of related issues. This would be a natural result
of today's tendency to make choice of the applicable law depend upon the precise
issue involved.
state which the parties understood was to be the principal location of the insured
risk during the term of the policy." In Jacek, this state was New Jersey, since
undoubtedly the automobile was principally garaged there. A court which
adhered to the rule of Section 193 would have no trouble with a case like
Jacek. It would apply the rule designated in the Section, namely that of Ne
Jersey, with little regard to the question whether by failing to apply the relevan
insurance rule of New York it was distorting the purpose of the New York
rule which it did apply, namely the rule that a husband is liable for tortious
injuries caused his wife. If the court were to do otherwise, it would destroy
the integrity and certainty of application of its choice-of-law rule.
'n Lillegraven v. Tengs, the Alaska court applied its own statute of limita-
tions to hold timely an action based on a British Columbia statute and time-
barred by a provision contained in that same statute. The plaintiff would have
had no right of action against the defendant under Alaska law. In reaching its
decision, the court relied upon the well-established choice-of-law rule that
forum statutes of limitation are to be applied,48 except where the action "is
barred in the state of the otherwise applicable law by a statute of limitations
which bars the right and not merely the remedy."49 It was the court's opinion
that the British Columbia statute was not of the latter type. Doubt may well
be expressed with respect to the wisdom of the rule that the forum will usually
apply its own statute of limitations even in a case where its period is longer than
that of the state of the otherwise applicable law.50 But the rule, so long as it
persists, should be applied.
CONCLUSION