Page images

judgment and execution, of funds by one alien belligerent to another; an act which it alleged was prohibited alike by the municipal law of both belligerents. The libellant replied that performance of the contract by respondent, that is, the payment of a debt due, was legal by the law of the place of performance, whether that place be taken to be Algiers or London; that it was immaterial whether it was legal by the Austro-Hungarian law, since AustriaHungary was not the place of performance; and that the enforcement of legal rights here would not infringe the attitude of impartiality which underlies neutrality. The District Court held that it had jurisdiction of the controversy, and that it was within its discretion to determine whether it should exercise the jurisdiction; since both parties were aliens and the cause of action arose and was to be performed abroad. It then dismissed the libel without prejudice, saying: “From the standpoint of this neutral jurisdiction the controlling consideration is that the law of both belligerent countries [Great Britain and Austria-Hungary] forbids a payment by one belligerent subject to his enemy during the continuance of war. This court, in the exercise of jurisdiction founded on comity, may not ignore that state of war and disregard the consequences resulting from it." (224 Fed. 188, 194.)

The dismissal by the District Court was entered on May 27, 1915. On December 14, 1915, the decree was affirmed by the Circuit Court of Appeals, on the ground that it was within the discretion of the trial court to determine whether to take or to decline jurisdiction, The Belgenland, 114 U. S. 355; and that the exercise of this discretion should not be interfered with, since no abuse was shown (229 Fed. 136). On June 12, 1916, an application for leave to file a petition for writ of mandamus to compel the Court of Appeals to review the exercise of discretion by the District Court was denied (241 U. S. 655), and a writ of certiorari was granted by this court (241 U. S. 667). The certiorari and return were filed July 21, 1916. On December 7, 1917, the President issued a proclamation declaring that a state of war exists between the United States and AustriaHungary. The case was argued here on April 17, 1918.

This court, in the exercise of its appellate jurisdiction, has power not only to correct error in the judgment entered below, but to make such disposition of the case as justice may at this time require. Butler v. Eaton, 141 U. S. 240; Gulf, Colorado & Santa Fe Ry. Co. v. Dennis, 224 U. S. 503, 506. And in determining what justice now requires the court must consider the changes in fact and in law which have supervened since the decree was entered below. United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466, 475, 478; Berry v. Davis, 242 U. S. 468; Jones v. Montague, 194 U. S. 147; Dinsmore v. Southern Express Co., 183 U. S. 115, 120; Mills v. Green, 159 U. S. 651; The Schooner Rachel v. United States, 6 Cranch 329; United States v. Schooner Peggy, 1 Cranch 103, 109-110. In the case at bar the rule is the more insistent, because in admiralty, cases are tried de novo on appeal. Yeaton v. United States, 5 Cranch 281; Irvine v. The Hesper, 122 U. S. 256, 266; Reid v. American Express Co., 241 U. S. 544.

Since the certiorari was granted, the relation of the parties to the court has changed radically. Then, as earlier, the proceeding was one between alien belligerents in a court of a neutral nation. Now, it is a suit by one belligerent in a court of a co-belligerent against a common enemy. A suit may be brought in our courts against an alien enemy. McVeigh v. United States, 11 Wall. 259, 267. See also Dorsey v. Kyle, 30 Md. 512. If the libel had been filed under existing circumstances, security for the claim being obtained by attachment, probably no American court would, in the exercise of discretion, dismiss it and thus deprive the libellant not only of its security, but perhaps of all possibility of ever obtaining satisfaction. Under existing circumstances dismissal of the libel is not consistent with the demands of justice.

The respondent, although an alien enemy, is, of course, entitled to defend before a judgment should be entered. McVeigh v. United States, supra. See also Windsor v. McVeigh, 93 U. S. 274, 280; Hovey v. Elliott, 167 U. S. 409. It is now represented by counsel. But intercourse is prohibited by law between subjects of AustriaHungary outside the United States and persons in the United States. Trading with the Enemy Act of October 6, 1917, sec. 3 (c), PublicNo. 91–65th Congress. And we take notice of the fact that free intercourse between residents of the two countries has been also physically impossible. It is true that, more than three years ago, a stipulation as to the facts and the proof of foreign law was entered into by the then counsel for respondent, who has died since. But reasons may conceivably exist why that stipulation ought to be discharged or modified, or why it should be supplemented by evidence. We cannot say that, for the proper conduct of the defense, consultation between client and counsel and intercourse between their respective countries may not be essential even at this stage. The war precludes this.

Under these circumstances, we are of opinion that the decree dismissing the libel should be set aside and the case remanded to the District Court for further proceedings, but that no action should be taken there (except such, if any, as may be required to preserve the security and the rights of the parties in statu quo) until, by reason of the restoration of peace between the United States and Austria-Hungary, or otherwise, it may become possible for the respondent to present its defense adequately. Compare The Kaiser Wilhelm II, 246 Fed. 786. Robinson & Co. v. Continental Insurance Company of Mannheim, [1915] 1 K. B. 155, 161-162.



251 Fed. Rep. 715. United States District Court, Southern District of New York.In the matter of the petition of the Cunard Steamship Company, Ltd., as owner of the steamship LUSITANIA, for limitation of its liability. MAYER, District Judge: On May 1, 1915, the British passenger carrying merchantman Lusitania sailed from New York, bound for Liverpool, with 1,257 passengers and a crew of 702, making a total of 1,959 souls on board, men, women, and children. At approximately 2:10 on the afternoon of May 7, 1915, weather clear and sea smooth, without warning, the vessel was torpedoed and went down by the head in about eighteen minutes, with an ultimate tragic loss of life of 1,195.

Numerous suits having been begun against The Cunard Steamship Company, Limited, the owner of the vessel, this proceeding was brought in familiar form, by the steamship company, as petitioner, to obtain an adjudication as to liability, and to limit petitioner's liability to its interest in the vessel and her pending freight, should the court find any liability.

The sinking of the Lusitania was inquired into before the Wreck Commissioner's Court in London, June 15, 1915, to July 1, 1915, and


the testimony then adduced, together with certain depositions taken pursuant to commissions issued out of this court and the testimony of a considerable number of passengers, crew, and experts heard before this court, constitute the record of the cause. It is fortunate, for many reasons, that such a comprehensive judicial investigation has been had; for, in addition to a mass of facts which give opportunity for a clear understanding of the case in its various aspects, the evidence presented has disposed, without question and for all time, of any false claims brought forward to justify this inexpressibly cowardly attack upon an unarmed passenger liner. So far as equipment went, the vessel was seaworthy in the highest

Her carrying capacity was 2,198 passengers and a crew of about 850, or about 3,000 persons in all. She had 22 open lifeboats, capable of accommodating 1,322 persons, 26 collapsible boats, with a capacity for 1,283, making a total of 48 boats, with a capacity for 2,605 in all, or substantially in excess of the requirements of her last voyage. Her total of life belts was 3,187, or 1,959 more than the total number of passengers, and, in addition, she carried 20 life buoys. She was classed 100 A1 at Lloyd's, being 787 feet long over all, with a tonnage of 30,395 gross and 12,611 net. She had 4 turbine engines, 25 boilers, 4 boiler rooms, 12 transverse bulkheads, dividing her into 13 compartments, with a longitudinal bulkhead on either side of the ship for 425 feet, covering all vital parts.

The proof is absolute that she was not and never had been armed, nor did she carry any explosives. She did carry some eighteen fuse cases and 125 shrapnel cases, consisting merely of empty shells, without any powder charge, 4,200 cases of safety cartridges, and 189 cases of infantry equipment, such as leather fittings, pouches, and the like. All these were for delivery abroad, but none of these munitions could be exploded by setting them on fire in mass or in bulk, nor by subjecting them to impact. She had been duly inspected on March 17, April 15, 16, and 17, all in 1915, and before she left New York the boat gear and boats were examined, overhauled, checked up, and defective articles properly replaced.

There is no reason to doubt that this part of her equipment was in excellent order when she left New York. The vessel was under the command of a long service and experienced captain, and officered by competent and experienced men. The difficulties of the war prevented the company from gathering together a crew fully reaching a standard as high as in normal times (many of the younger British sailors having been called to the colors); but, all told, the crew was good, and, in many instances, highly intelligent and capable. Due precaution was taken in respect of boat drills while in port, and the testimony shows that those drills were both sufficient and efficient. Some passengers did not see any boat drills on the voyage, while others characterized the drills, in effect, as formally superficial. Any one familiar with ocean traveling knows that it is not strange that boat drills may take place unobserved by some of the passengers, who, though on deck, may be otherwise occupied, or who may be in another part of the ship, and such negative testimony must give way to the positive testimony that there were daily boat drills, the object of which mainly was to enable the men competently and quickly to lower the boats.

Each man had a badge showing the number of the boat to which he was assigned, and a boat list was posted in three different places in the ship. Each day of the voyage a drill was held with the emergency boat, which was a fixed boat, either No. 13 on the starboard side or No. 14 on the port side, according to the weather; the idea, doubtless, being to accustom the men quickly to reach the station on either side of the ship. The siren was blown and a picked crew from the watch assembled at the boat, put on life belts, jumped into the boat, took their places, and jumped out again.

Throughout this case it must always be remembered that the disaster occurred in May, 1915, and the whole subject must be approached with the knowledge and mental attitude of that time. It may be that more elaborate and effective methods and precautions have been adopted since then, but there is no testimony which shows that these boat drills, as practiced on the voyage, were not fully up to the then existing standards and practices. There can be no criticism of the bulkhead door drills, for there was one each day.

In November, 1914, the Directors of the Cunard Company, in view of the falling off of the passenger traffic, decided to withdraw the Lusitania's sister ship, Mauretania, and to run the Lusitania at three-fourths boiler power, which involved a reduction of speed from an average of about twenty-four knots to an average of about twenty-one knots. The ship was operated under this reduced boiler power and reduced rate of speed for six round trips, until and including the fatal voyage, although at the reduced rate she was con

« PreviousContinue »