English decisions,

case of vessels which, like the one in question, are dedicated to philanthropic missions only during the war, occasionally, and not permanently even in time of peace.

English decisions also take this point of view. A German vessel engaged in taking women and children from the fortress of Tsingtau to Tientsin was seized as prize. The prize court in Hongkong held the capture was legal, adopting the opinion that the vessel was not charged with a philanthropic mission in the sense of article 4 of the eleventh Hague convention. If, so the court reasoned, such a situation was meant to be covered by the Hague convention, the provision in question would not be couched in such vague and indefinite terms. On the contrary, such a contingency would have been provided for expressly and unambiguously. Were one to put as broad a construction on the expression "philanthropic mission" as did the plaintiff, it would lead to serious consequences, which could not possibly have been intended by the wording of the article. (Cf. case of the Paklat, 1 Trehern, British and Colonial Prize Cases, 515.) Thus, the English courts, too, adopt the view that an unlimited application of that general principle, at least as regards enemy ships, is not within the meaning of the provision.

As a matter of fact, then, shipping for the relief commission takes place not only under the protection of article 6c of the Prize Code, but on the basis of an agreement between the German Government and the interested neutrals, which is embodied in the safe conduct which every relief ship must have with it on both the outbound and return voyage. In this safe conduct, several conditions are set up, whose fulfillment is desigConditions of nated as the premises of preferential treatment. Moreover, it contains a clause to the effect that the safe conduct has reference solely to the high seas outside of the war zones. In view of the history of the origin of article 6c of the Prize Code given above, it must be assumed that vessels which, contrary to prescriptions of their safe conduct, traverse the blockaded areas, not only expose themselves to the danger of destruction connected therewith, but forfeit the benefit of article 6c of the Prize Code as well.

safe passage.

Since, as has been shown, the captain of the Haelen was not compelled by any urgent necessity, tantamount to force majeure, to traverse the barred zone, he has

THE WAUBESA

forfeited the right to special treatment, in accordance with what has been said of this claim. Therefore, his vessel, together with its cargo, is subject to the general provisions of prize law, namely, inasmuch as both were admittedly of enemy ownership at the time of capture, condemnation. Notwithstanding this, the major part of the cargo, as the records show, and as substantiated by the representative of the Commission for Relief in Belgium, has in the meantime been restored to the commission. Whether grounds of equity argue in favor of extending this concession to the rest of the cargo as well is a question which does not lie within the competence of the prize court, but is rather to be decided by the proper authorities of the Government.

The judgment is therefore affirmed. The decision on the question of costs is conditioned by section 37 of the prize court rules.

THE "WAUBESA"

(American Maritime Cases, 1923, p. 659)

United States of America, as owner of steamship Waubesa, libellant, v. City of New York, as owner of ferries Queens and Mayor Gaynor, respondent, and cross libel, etc.

UNITED STATES DISTRICT COURT, SOUTHERN DIS

TRICT OF NEW YORK

May 3, 1923

7

the case.

AUGUSTUS N. HAND, D. J.: This case involves a col- Statement of lision between the steamship Waubesa, belonging to the United States, and the ferryboats Queens and Mayor Gaynor, belonging to the city of New York. The collision occurred on March 17, 1919, in New York Harbor, during a dense fog. The Waubesa was anchored at or near the anchorage grounds in the upper bay to the southwest of Bedloes Island.

The United States appeared specially and filed a plea to the jurisdiction to the effect that the Waubesa was not employed as a merchant vessel but was engaged in the European food relief service, which is alleged to be a purely governmental function.

In the first libel the United States sues to recover for Libels. damages caused the Waubesa by the collision, and the city of New York files a cross libel alleging that the collisions were due to the negligence of those in charge

of the Waubesa in that the latter was anchored in the channel way and in that she did not ring her bell as required by law so as to notify vessels of her position at anchor.

The second libel is filed by the Grain Corporation against the city of New York, and alleges that the libellant shipped on board the Waubesa grain in good order and condition to be carried from New York to European ports, that the Waubesa, with libellant's cargo on board, took up anchorage on the general anchorage grounds at a point to the south and east of the Statue of Liberty in New York Harbor, where the municipal ferries Queens and William J. Gaynor negligently collided with her, to the damage of the merchandise belonging to the Grain Corporation. The city of New York impleaded the United States as the one primarily liable, claiming the right to sue it under the provisions of the act of March 9, 1920.

In the third libel, the United States Grain Corporation, organized under the laws of the State of Delaware, alleges that the Waubesa was a general ship engaged in the common carriage of merchandise by water for hire and was being operated under the control and direction of the United States Shipping Board Emergency Fleet Corporation; that the Grain Corporation shipped rye grain on the Waubesa in good order and condition to be carried from Philadelphia to Falmouth, England; that the Waubesa instead of proceeding to Falmouth, put in to the port of New York, having oil and water in the bilges, and being in such a condition that it was deemed best by those in charge of her not to proceed upon her voyage to Falmouth; that the cargo of grain was discharged in the port of New York not in good order and condition as when shipped, but seriously injured and damaged by contact with fuel oil and sea water, for all of which damages are sought. The United States is made respondent under the act of March 9, 1920, in place of the Waubesa and the Emergency Fleet Corporation, and the city of New York is impleaded under the admiralty rule on the ground that it is primarily responsible for the alleged damage.

[The court here reviews the evidence upon the question of liability for the collision and concludes that the city of New York is liable owing to the fact that the ferryboats which struck the Waubesa were being navigated

MUNICIPAL REGULATIONS

in the fog at an improper speed, estimated as 7 to 8 knots.]

The claim that the city of New York can not limit its liability because its regulation for the municipal ferries contravened the inland rules seems to me without merit. Regulation 26 reads as follows:

"In a fog, mist, falling snow, or heavy rainstorms, Regulations. boats must run at half speed, or less, having careful regard to the existing circumstances and conditions. If the weather is so thick or foggy that the regular advertised schedule can not be maintained with safety to the ferryboats they will be run slowly and cautiously without regard to the schedule and proceed with great care and caution."

Article 16 of the inland rules says:

"Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions."

It is contended that the words "boats must be run at half speed or less" suggest running at half speed under unsafe conditions. I see no ground for this. Each regulation prescribes a caution and a limitation of speed dependent on the circumstances. It might as well be argued that the municipal regulation imposed greater moderation rather than less. In my opinion the two regulations are equivalents. There is no proof that the city rule was not made in good faith. The words of the Supreme Court in La Bourgoyne, 210 U. S. at p. 126 are applicable:

* * The petitioner having shown the promulgation of regulations for the conduct of its business, which exacted a compliance by the captains of its vessels with the international rules, we think the burden of proving that the rules were not promulgated in good faith or that a willful departure from their requirements was indulged in, and was brought home to or countenanced by the petitioner, was cast upon the claimants, and that the court properly held that that burden was not sustained by the evidence."

In my opinion the municipal regulations, while differently phrased, were in entire accordance with the inland rules, and the city sustained the burden imposed by law of proving the absence of privity in respect to undue speed in a fog.

9

The Grain Corporation contends that the ship was Seaworthiness. unseaworthy because oil leaked from the tank and got into the grain and that for this reason the exceptions in the bill of lading and under the Harter Act are not applicable.

Deviation.

Liability.

[The court here reviews the evidence upon this point, and concludes as follows:]

It seems clear, therefore, that oil which had leaked from the tanks caused the damage in holds 1 and 2, and that the collision and the resulting beaching of the vessel contributed to this damage.

The suit by the Grain Corporation against the United States is for failure to deliver the grain shipped and receipted for in good order in accordance with the terms of the bill of lading. As Goble, the master (deposition, p. 13) and Glen, the inspector for the United States Shipping Board (minutes, p. 82), both said, the trip was really a trial trip, though the voyage for which the cargo was shipped was from Philadelphia to Falmouth. The vessel left Philadelphia with oil in her bilges under the protest of her engineer, and in substance that of her master also (Goble deposition, p. 8). The soundings, however inaccurate, showed a large amount of oil in her bilges, and this oil, when the vessel listed as a result of the accident, damaged the grain in holds 1 and 2. It seems clear that the vessel should not have left Philadelphia under such circumstances and that she was unseaworthy for the carriage of grain. Moreover, the trial trip was a deviation by an unseaworthy vessel that deprived the Waubesa of the benefit of the exceptions in the bill of lading and the provisions for exemption of the Harter Act. The St. Paul (1921), 277 Fed. 99; The Elizabeth Dantzler (1920), 263 Fed. 596. The Waubesa was not definitely proceeding on her voyage, but only going to New York and then on in case she was found fit and after she was satisfied that the oil could be pumped out and did not imperil the cargo. New York was not a port of refuge, but a stopping place for convenience on a trial trip, which, irrespective of the delay caused by the collision, proved to be a stopping place of long duration because of the condition of the vessel. I can hardly see a more fit application for the doctrine of deviation.

Under such circumstances if the vessel were not Government owned the Grain Corporation could recover damages to her cargo and the owner of the Waubesa