Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges.
1. If, as the trial judge held, the jus gentium applies, then, regarding the decisions of our courts as reflecting it, libellants would seem clearly to be salvors. According to those decisions, abandonment by the master, in the face of what he deems a disaster, without expectation of returning, severs the crew's employment contract even if, subsequently, the vessel turns out to be safe and the crew then returns.*fn1 That rule would apply here. There was ample evidence to support the finding that the men in lifeboat No. 1 volunteered. The judge did not explicitly so find as to lifeboat No. 2; but that finding is implied in his Conclusions of Law, and the evidence is enough to support such a finding.
2. But while the district court had discretion to take jurisdiction,*fn2 and that discretion has been said to be justified "because salvage is a question arising under the jus gentium and does not ordinarily depend on the municipal laws of particular countries,"*fn3 we think that whether, on the facts as found, the crew were "released from any obligation to exert themselves for the benefit of the vessel,"*fn4 must be determined, as a matter of the "internal economy" of the ship by the Argentine law, the "law of the flag."*fn5
3. For us, Argentine law is a fact. With respect to that fact, defendant introduced the testimony of an expert witness. He is an American and a member of the New York Bar, and of the Bars of Cuba and Puerto Rico. He studied civil law for forty years. He has a degree of Doctor of Civil Laws from the University of Havana. He was a judge in Puerto Rico for seven years, and a nember for two years of a commission that drafted new legislation for Cuba. He has studied Argentine law, and is the author of a digest of that law appearing in the Martindale-Hubbell Law Directory. He has not practiced admiralty or maritime law anywhere, but has "occasionally given advice on maritime law" in Latin-American countries. He is authorized to practice in no Latin-American countries except Cuba, but can give advice in other such countries.
He testified that Article 929 of the Argentine Code of Commerce reads: "A captain is forbidden to abandon his ship, whatever may be the danger, except in case of shipwreck." He also said that the pertinent portions of the Code relating to termination of the employment contract between seamen and their ship are contained in Articles which provide that the contract is terminated in the case of "any disaster happening to the vessel which absolutely renders it incapable of navigation." According to the expert witness, this means that the captain's judgment that the vessel is in such condition is not conclusive, but that the sole test is the actual objective fact as to the ship's condition. ("The final decision is the fact of whether the vessel remained fitted for navigation.") It was the witness' opinion that, on the facts here, under Argentine law the libellants' contract was not ended when the captain ordered them to abandon the ship, although the men were obliged to obey that order.
According to this witness, Latin-American courts pay little attention to court decisions as percedents. He had found "practically nothing" by way of decisions of the Supreme Court of the Argentine bearing on the Code provisions in question, in part because of the difficulty of finding such decisions since they are "badly indexed" or "digested." He relied, as, he said, Argentine lawyers do, on the "commentators," especially including the French commentators because, he said, the Argentine Code of Commerce is based on the French law. Where there was a difference of opinion between commentators, he had made a choice. In his testimony, he cited no commentators, but merely gave his interpretation of uncited commentators' interpretations of the Code.
The judge is not bound to accept the testimony of a witness concerning the meaning of the laws of a foreign country,*fn6 especially when, as here, the witness had never practiced in that country.*fn7 Moreover, as defendant says in its brief, this witness "relied strictly upon the Code provisions." As already noted, he gave little or no attention to Argentine decisional material. We have no knowledge of Argentine "law," nor more than a vague acquaintance with the judicial methods there prevailing. But casual readings of readily available material clearly indicate that, in all civil-law countries, despite conventional protestations to the contrary, much law is judge-made, and the courts are by no means unaffected by judicial precedents or "case law" (which the civilians call "jurisprudence," as distinguished from the interpretation of text-writers or commentators, called "doctrine").*fn8 Recasens Siches, a widely respected professor of law in Spain for many years, now in Mexico, recently wrote: "Now jurisprudence, that is, the decisions of the courts, has had the part of greatest protagonist in the formation of the law; and, although in much less volume, it continues today of great importance."*fn9 "Both the slavish obedience of [civilian] judges to codes, and their freedom from precedent are largely a myth," writers Friedman. "In truth, while there is greater freedom towards the provisions of codes, there is also much greater respect for judicial authority than imagined by most Anglo-American lawyers."*fn10 A recent treatise by Cossio, a distinguished Argentine lawyer, shows that this attitude prevails in the Argentine.*fn11
The expert witness' adherence to the literal words of the code may have caused the trial judge to question his conclusions. For, we are told, the civilians, influenced by an interpretative theory which derives from Aristotle*fn12 (and which has affected Anglo-American practice as well*fn13) are accustomed to interpret their statutory enactments "equitable," i.e., to fill in gaps, arising necessarily from the generalized terms of many statutes, by asking how the legislature would have dealt with the "unprovided case."*fn14 In civil-law countries, "there are countless examples of judicial interpretation of statutes * * * which gave the statutory interpretation a meaning either not foreseen by or openly antogonistic to the opinions prevailing at the time of the Code, but in accordance with modern social developments or trends of public opinion. This attitude finds expression in Art. I of the Swiss Civil Code [of 1907]*fn15 which directs the judge to decide as if he were a legislator, when he finds himself faced with a definite gap in the statute."*fn16
In a colloquy which occurred after the judge had filed his opinion, he expressed himself as in disagreement with the witness' interpretation of the Code.*fn17 But, doubtless because the judge thought the jus gentium governed, he did not make a finding as to Argentine law. We must therefore reverse and remand for such a finding. Perhaps it can be made without further testimony on the subject. It may be that, if he considers it desirable, some arrangement will be agreed upon which will enable the judge to summon an expert of his own choosing.
3. A majority of the court think that, assuming that the men were salvors, the amount of the award is excessive and should be no more than $200 apiece, because the men were in no danger, as a navy vessel accompanied the ship to New York, and because their activities were not markedly different from those they would have performed under their employment contract. The writer of this opinion thinks that this ...