c33:No. 317

MAYER, Circuit Judge
(concurring). The District,Court was of opinion that the collision resulted proximately “from poor navigation on the part of both vessels.” It seems to me that neither vessel was legally at fault. If we assume that the District Court was right in ascribing fault to each vessel, yet such fault must be regarded as having been committed in extremis in a situation so unexpected, confusing, and exciting as to invite for its description the pen of a Conrad. If the case were unembarrassed by authority, I should say that the method of navigation prescribed by the naval authorities was the proximate cause of collision.
It is true that, so far as disclosed by the evidence, there is “nothing to show that Napoli or any other merchantman was compelled to go in convoy.” Yet this, I think, refers more to form than to substance. If a merchantman had set out without convoy for a voyage through a known submarine-operated area, her owner or master would have been subjected to grave condemnation for the risk to life, as well as property, thus recklessly incurred.
There was a moral compulsion to seek convoy aid, equivalent, in war, to a compulsion in law. When, therefore, these vessels began their voyages in opposite directions, the flotilla in which each was grouped was under command of navigators from the top down, who knew nothing whatever of the existence or movement of the other flotilla. Why was this ? Obviously, because of war necessity. In effect, the navigators were not free agents, so far as concerned their ability to anticipate, by the ordinary usages and precautions of navigation, the presence of the other convoyed vessels; and this going to sea, almost with closed eyes, was imperative for the delivery of cargoes vital to sustain the physical and economic life of allies and associates co-operating to defeat a common enemy. This war, perhaps more than any other, has emphatically demonstrated that the furnishing of munitions and supplies is as indispensable an operation of war as the movement of armies and navies. The point of the Ionides Case is found in the opinion of Byles, J., when he said:
“First the original meritorious cause (and in popular language the cause of the loss) was the captain’s being out of reckoning. * * * The absence of the light was * * * merely the absence of an extrinsic saving power."
Thus impulse was given to the “aggravated marine peril” theory. But I think it is going far to extend that theory to the case at bar. The theory of this case should be that “a warlike operation” is not confined to actual offense, attack, or armed engagement, but may, in any event, comprehend a movement of vessels initiated in accordance with sovereign compulsion for the purpose of delivering munitions and supplies either to one’s own country or to allies or associates. Of course, extravagant or fanciful illustrations may be advanced to show the extremes to which such a theory may be carried, with, it is contended, illogical results; but illustrations of that character are rarely helpful. Yet, whatever our own views may be, I think the District Court, per Hough, J., was right in recognizing the commercial necessity of following the Petersham and Matiana Cases, decided by the House of Lords by the narrow margin of three to two.
The questions in the case at bar are not local, but affect an important class of world-wide business, in which the relations are so interwoven and connected that it would be unfortunate and confusing if a court of less authority than the Supreme Court of the United States were to arrive at a result different from that reached by the House of Lords.
For that reason, I think the decree should be affirmed.

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