Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1909

The American Delegates to the Secretary of State.

[September 28–October 8, 1919]

Sir: The representatives of the United States designated by you to attend the third international conference on maritime law have the honor to report:

The conference met at Brussels September 28 and continued in session until October 8, 1909. It was attended by us at all its sessions. Twenty-three nations were represented by 61 delegates. These nations were: Germany, Argentine Republic, Austria-Hungary, Belgium, Brazil, Chile, Cuba, Denmark, Spain, France, Great Britain, Greece, Italy, Japan, Mexico, Nicaragua, Norway, Holland, Portugal, Roumania, Russia, Sweden, and the United States. Mr. Beernaert, formerly Belgian minister of state, presided over the sessions.

On our arrival in Brussels we were handed a letter of instructions by the minister of the United States, of which a copy is attached to this report, marked “Schedule A.” At the request of our minister Mr. Gaston de Leval, a Belgian advocate who participated in the last conference, was associated with us. He spoke English fluently and rendered us valuable services, of which we wish to express our appreciation.

At the first meeting we stated that our participation in the conference was ad audiendum et referendum, but that such limitation upon our powers should not be construed as indicating that the Government of the United States was not profoundly interested in the work and success of the conference.

The representatives of the different countries were, in many cases, men distinguished for their knowledge of maritime law or of wide experience in the practical affairs of shipping and commerce. The debates upon the questions which were brought before the conference were thorough and suggestive.

The object of the conference was to secure uniformity in certain branches of maritime law. Two conventions were submitted for consideration—one relating to the law of collisions, the other to the law of salvage. These conventions were approved by the conference and referred to the several Governments.

Two plans for conventions were also submitted—one relating to the law limiting the liability of shipowners and the other to the law of liens. These pro jets were merely recommended by the conference for examination by the Governments.

The conference adjourned until next April, so that the Governments interested might examine the conventions and pro jets and determine whether or not, or upon what conditions, they would sign the conventions and what recommendations they would make as to the projets.

The conventions relating to collisions and salvage met, for the most part, with our personal approval, but the expression of such approval in the conference was limited in accordance with our instructions. As to certain articles, we though it our duty to stipulate expressly that reservations in the protocol should be made by the United States if it determines to sign the convention. These reservations are stated and examined in the schedules attached to this report.

The proposal to adjourn the conference was supported by us in accordance with our letter of instructions. This adjournment gave an opportunity for an examination by the Governments of the completed conventions. It was understood also that the committee of the conference would, in the interval, more fully examine the pro jets, so as to be able to present them in more definite and complete form at the adjourned session.

In the schedules attached to this report and marked “B,” “C,” “D,” and “E,” we endeavored to show the changes made in existing law by the conventions and the pro jets and the reasons offered for making such changes. Somewhat similar conventions were considered by the diplomatic conference held in Brussels in 1905, and a report was made to the department by the representative of the United States. But as these were in several respects essentially different from the present conventions, we think it desirable to discuss the latter in detail and without regard to previous action. We think it necessary to consider at length only such articles as involve changes in our laws. It will be assumed that when articles follow our present law they will be acceptable.

We think that we should point out, however, the possibility that an examination made in this way may direct especial attention to comparatively unimportant subjects. We assume that by participating in the conference this Government recognized the desirability of securing international uniformity in maritime law. The conventions approved by the conference constitute, as a whole, a marked advance toward uniformity. Several of the articles which follow our law have resulted from concessions made by other nations. Consequently, while some of the changes in our law, to which we shall direct attention, may seem not wholly desirable when examined by themselves, we think that consideration should also be given to the important object to be attained and to the fact that uniformity can only be obtained through mutual concessions.

For convenience, we attach to the annexed schedules translations of the conventions and pro jets under consideration, but it must be borne in mind that such translations are unofficial and not authoritative. We recommend a careful revision and comparison of the English text with the French original before definite action is taken.

It will give us much pleasure to submit to the department at any time any information within our power which it may desire.

Awaiting your further instructions, we have the honor to be, sir,

Your obedient servants,

• Walter C. Noyes.
• Edwin W. Smith.
• A. J. Montague.
• Charles C. Burlingham.

SCHEDULE A.

American Legation,
Brussels, September 27, 1909.

Messrs. Walter C. Noyes, Charles C. Burlingham, A. J. Montague, Edwin W. Smith, American Delegates to International Maritime Conference convening at Brussels September 28, 1909.

Sirs: I have the honor to inform you that, pursuant to instructions from the Secretary of State, you have duly been accredited through the Belgian foreign office as delegates authoritatively charged with the representations of the interests of the United States at the Inernational Maritime Conference.

The first sitting of the conference will occur on Tuesday, 28th instant, in the Hall of Conferences, No. 17 rue de la Loi, and it will afford me great pleasure to accompany you thither for the purpose of making the usual presentations.

In order to facilitate and simplify the work of the delegation I have, on my own responsibility, attached to it in the capacity of adviser Mr. Gaston de Leval, avocat à la cour d’appel and conseil of the legation here. Mr. de Leval discharged similar functions at the last conference and rendered me most valuable assistance.

The Belgian foreign office has been notified of Mr. de Leval’s designation.

By the direction of the Secretary of State, I have further to instruct you that you are not clothed with plenary powers, and that your participation in the conference will be ad audiendum and ad referendum. You are, however, authorized to offer such amendments to the conventions as you may deem essential or desirable.

It is understood that the delegates of Great Britain will propose a division of the conference into two sessions, the forthcoming session being confined to the discussion and decision of the convention drafts in their final form, a recess of two or three months then to be taken, so that in the interval the interested Governments may examine the propositions and decide whether and on what conditions it would be expedient to proceed with the signature of the conventions. The Secretary of State directs me to instruct you to support this proposal, advocating a recess of not less than three months, so that it may be ascertained before signature on the part of the United States whether ratification by the Senate may be depended upon with reasonable probability. I have the honor to be,

Your obedient servant,

Henry Lane Wilson.

SCHEDULE B.

Convention relating to the law of collision.

The first three articles of this convention seem to require no discussion. Article I defines the scope of the convention and Articles II and III state the law as it now is in the United States.

Article IV is the most important in the convention and involves material changes in existing law. The first paragraph provides that in case of mutual fault the liability of each vessel shall be in proportion to the gravity of the fault, but that if the proportion can not be established the responsibility shall be equally divided. Manifestly, this provision furnishes a flexible rule for the just apportionment of responsibility. The law as at present administered arbitrarily divides the responsibility and the consequent damage in equal parts. The vessel slightly at fault and the vessel grossly at fault bear the same burden. This is obviously unfair. The object of the departure of the admiralty law from the common-law rule that in case of common fault there can be no recovery at all was to do more precise justice between the parties; this is the purpose of the further extension of the principle as proposed in the convention. An objection is made that it is impracticable for a court to assess damages in proportion to the gravity of the fault. We see, however, no reason why a judge competent to pass upon the question of responsibility can not apportion it. Indeed, in continental countries where the proposed rule is the existing law the judges are said to have no difficulty in fairly applying it. It is a matter of common knowledge that private settlements between the owners of colliding vessels are often made upon such a basis. Any difficulty which might arise in applying the rule would seem to be obviated by the provision that if the responsibility can not otherwise be apportioned it shall be borne equally.

The remaining paragraphs of Article IV relate, broadly speaking, to the rights and remedies of third persons against ships mutually at fault in a collision. As the general rule they provide that each ship shall be liable to injured persons in proportion to its degree of fault “but without solidarity,” i. e., without the right to recover the whole damage from either. Thus, under this provision, a cargo owner injured by a collision could recover from the noncarrying vessel only such part of his loss as might be proportioned to the gravity of the fault of that particular vessel. He could not hold the noncarrying vessel for the fault of the carrying ship, or vice versa.

These propositions are at variance with elementary principles of the law of torts. One of several tort feasors can be held responsible to an injured person for the whole injury. The right of such tort feasor to contribution from the other wrongdoers depends primarily upon whether the injury inflicted was willful or arose through mere neglect. As a general rule, contribution is permitted in cases of negligence, including cases of collision.

If there were nothing more to be considered than these principles of the law of negligence there would, perhaps, be little reason for making the proposed changes. If an injured cargo owner could recover his whole damage from either the carrying or noncarrying ship and the ship responding could recover contribution from the other, in the end the responsibility would be apportioned and the burden of apportioning it would be, not inappropriately, borne by the wrongdoers themselves. The result would be the same as if the cargo owner recovered from each his proportional share and he would not be obliged to bring two suits. But this is not the situation under the statutes of the United States. Congress has passed the Harter Act, which, as a general rule, relieves the carrying ship from responsibility for injury to the cargo. Consequently, an injured cargo owner can sue only the noncarrying ship. If he does this and recovers his damage, the decisions of the Supreme Court hold that the noncarrying ship can then recover contribution from the carrier, notwithstanding the Harter Act. Thus, the cargo owner may recover his whole damage from the noncarrying ship with which he had no contract and which may have been only slightly at fault, and the carrying ship may then be held responsible indirectly for that for which, under our law, it could not have been directly charged. If the carrying ship is wholly at fault she pays nothing. If she is only partially at fault she is liable in the end for one-half the damage.

So long as the Harter Act defines the policy of the United States to relieve shipowners from direct responsibility for injury to cargo we think this policy should be followed logically to the end and relief afforded against indirect responsibility. Moreover, the proposed provision is supported by other nations which have no statute similar to the Harter Act. Furthermore, the third paragraph of the proposed article provides for liability in solido, with the accompanying right of contribution, in case of personal injuries or injuries resulting in death, and the fourth paragraph leaves the effect of stipulations limiting liability upon the right of contribution to national legislation.

Considering Article IV as a whole, we think its adoption desirable.

The assessment of damages in proportion to the gravity of the fault would, however, for serious reasons, be undesirable and impracticable in actions before a jury in common-law courts. In view of the possibility of such an action being brought for an injury growing out of a collision and of the possible contention therein that the provisions of the convention—it being a treaty—would be applicable and controlling, it was, at our request, agreed that if the United States sign the convention the protocol shall provide that it shall apply only to courts of admiralty and maritime jurisdiction.

Article V provides that responsibility for collision shall exist where it was caused by the fault of a pilot, even if his employment were compulsory. This provision follows the law as it exists in this country, but is contrary to existing law in England. We think the American rule preferable, and approve this article.

The first paragraph of Article VI merely states our existing law—that suits for collision are not subject to a protest or any other formality. The second paragraph, however, requires consideration. It provides that there are no legal presumptions of fault so far as responsibility for collision is concerned. In form this is a broad and sweeping provision, although the narrowness of the subject deprives it of any very serious effect. There are, of course, few legal presumptions, as distinguished from presumptions of fact, which exist in determining the mere question of responsibility in case of a collision. We understand that the object of the provision is to reach certain legal presumptions existing in the laws of England and continental countries which are said to operate unjustly.

But, while the subject is a narrow one, we consider this provision as affecting presumptions created by the laws of the United States inexpedient. Presumptions belong to the law of evidence and really should have no place in a treaty. Furthermore, the sweeping away of all legal presumptions could not fail to leave our law in a state of more or less uncertainty, especially in view of the difficulty in many cases of distinguishing between presumptions of law and presumptions of fact. In our opinion, if the United States should approve the convention, the protocol should contain a provision that the paragraph under consideration should not affect legal presumptions created by the laws of the United States. It was stated by the officers of the conference that such a provision in the protocol reserving the rights of the United States would be satisfactory, and we deem it desirable that it should be inserted. With this provision we see no serious objection to the article. We think that the citizens of the United States would not be injuriously affected by the elimination of legal presumptions in other countries. If they wish to do so other countries may now remove such presumptions by national laws, and we see no reason why they should not do so by treaty. Moreover, we are not aware of any legal presumptions existing in foreign countries which, from the point of view of this country, should be preserved.

Article VII of the convention provides in substance that actions for collision must be brought within two years after the accident, but that suits for contribution under Article IV must be brought within one year.

A uniform limitation of actions for collision among the maritime powers would be highly desirable and we think the periods proposed fair. From the nature of the case actions for collision are usually brought promptly, and these periods would seem to afford reasonable opportunity for their institution.

The proposed article, however, is not complete. While it definitely prescribes the limitation, it does not, like ordinary statutes of limitation, state the causes which suspend its operation. Notwithstanding the difficulty of the subject, resulting from the differences in the national laws, we think that it would have been preferable, if the matter were dealt with at all, that it should have been dealt with adequately. To fix a definite limitation and leave the causes of suspension to the lex fori, or national law, can not be regarded as a marked advance toward uniformity.

As the laws now stands there is no prescribed limitation of suits in our admiralty courts. The whole question is one of laches. While the courts in applying the doctrine follow equitable principles, these principles can not be regarded as determining the causes which should suspend the operation of a treaty provision. Supplemental legislation by Congress would be necessary, and in case the convention be signed by the United States we think that such legislation should be adopted. With a statute defining the causes of suspension the objections to the article to which we have directed attention would be largely obviated.

Articles VIII and IX do not substantially vary the “standing-by” statute of this country, and we see no objection to them.

Article X provides, in substance, that the present treaty shall not affect the nature or extent of shipowners’ liability as at present defined in each country, nor any obligations arising out of the contract of affreightment or other contracts. While it is possible that questions may arise under this article with respect to the effect of the convention upon suits in personam as distinguished from suits in rem, we can not regard it as subject to serious objection.

Article XI provides that the convention shall not apply to ships of war or to other vessels engaged in public service, and seems entirely proper.

Article XIII covers the case where damages are caused by an error in navigation, although there is no actual collision or contact. This substantially recognizes the law as it exists in the United States to-day, and we consider it proper.

The remaining articles of the convention are more or less formal. They relate to the extent of the operation of the convention and to its execution and taking effect.

Subject to the limitations stated herein, we approve the convention relating to the law of collision.

[Translation.]

International Convention for the Unification of Certain Rules in the Matter of Collision.

Article 1.

In case of collision between seagoing vessels or between seagoing vessels and vessels engaged in internal navigation, indemnity for damage caused to the vessels, property, or persons on board is subject to the following provisions, without regard to the waters in which the collision occurs.

Article 2.

If the collision is fortuitous, if it is due to force majeure, or if there is doubt as to the cause of the collision, the losses are borne by those who have suffered them.

This provision is applicable where the vessels, or one of them are at anchor at the time of the accident.

Article 3.

If the collision is caused by fault on the part of one of the vessels, indemnity for this damage falls on the one which has committed it.

Article 4.

If there is mutual fault, the responsibility of each of the vessels is proportional to the gravity of the faults respectively committed; if, according to the circumstances, the proportion can not be established, or if the faults appear equivalent, the responsibility is divided into equal parts.

Damages caused, whether to ships, cargoes, effects or other property of the crew, passengers, or other persons on board, are borne by the ships in fault in said proportion, without solidarity as regards third persons (i. e., without the right to recover the whole from either).

Ships in fault are held in solido as regards third persons for damages caused by death or injuries with the right of contribution on the part of the person who has paid a greater portion than he is bound to bear in conformity with the first paragraph of the present article.

The national laws shall determine in respect to this right to contribution the weight and effects of the contractual or legal provisions which limit the liability of shipowners with relation to persons on board.

Article 5.

The responsibility established by the preceding articles exists where the collision is caused by the fault of a pilot, even when compulsory.

Article 6.

The action for indemnity for damages sustained in consequence of a collision is subject neither to a protest nor to any other special formality.

There are no legal presumptions of fault as far as responsibility for collision is concerned.

Article 7.

The limitation period for actions for indemnity for damage is two years from the date of the accident.

Delay in bringing actions for contribution provided by paragraph 3 of article 4 is one year. This prescription runs only from the date of payment.

The causes of suspension and interruption of these periods of prescription are determined by the lex fori.

The High Contracting Parties reserve the right to allow in their legislation, as a cause for extending the time heretofore fixed, the fact that the defendant ship could not be seized within the territorial waters of the state in which the plaintiff has his domicile or principal place of business.

Article 8.

After a collision, the captain of each of the colliding vessels is bound, in so far as he can do so without serious danger to his vessel, the crew, and the passengers, to render assistance to the other vessel, her crew, and passengers.

He is equally bound, so far as possible, to make known to the other ship the name and hailing port of his own vessel, as well as the places from and to which he is bound.

The owner of the ship is not responsible merely by reason of the violation of the foregoing provisions.

Article 9.

The High Contracting Parties whose legislations do not prohibit violations of the preceding article pledge themselves to take or propose to their respective legislatures the measures necessary to prohibit these violations.

The High Contracting Parties will communicate as soon as possible the laws or regulations which have already been adopted or which shall be adopted in their States in order to carry out the foregoing provision.

Article 10.

Subject to further conventions, the present provisions do not affect the nature and extent of shipowners’ liability as they are regulated in each country, nor the obligations resulting from the contract of carriage or any other contract.

Article 11.

The present convention has no application to war vessels or other vessels exclusively devoted to public service.

Article 12.

The provisions of the present convention shall be applied with regard to all persons interested when all the vessels in suit belong to the States of the High Contracting Parties and in the other cases prescribed by the national laws.

It is understood, however:

1. That with regard to persons interested belonging to a noncontracting state, the application of said provisions may be made subject by each of the contracting States to the condition of reciprocity.

2. That, when all persons interested belong to the same State as the court of jurisdiction, national law and not the convention shall be applied.

Article 13.

The present convention extends to indemnity for damage which through execution or omission of a maneuver or through failure to observe the regulations one ship has caused to another ship or the property or persons on board even though no collision resulted.

Article 14.

The delegates of the High Contracting Parties shall meet in Brussels three years after the present convention becomes operative in order to consider the improvements which may be suggested, and especially to extend, if possible, the sphere of application.

Article 15.

The States which have not signed the present convention are permitted to adhere to it upon their request. Notice of this adherence shall be given through diplomatic channels to the Belgian Government, and by it to each of the Governments of the other contracting parties. It shall become effective one month after the sending of the notification by the Belgian Government.

Article 16.

The present convention shall be ratified and the ratification shall be deposited at Brussels as soon as possible. At the expiration of one year at the latest, from the day of the signing of the convention, the Belgian Government shall confer with the Governments of the High Contracting Parties who shall have declared themselves ready to ratify it, to decide whether the time has come to put it into effect.

The ratifications shall be deposited immediately, and the convention shall take effect one month thereafter.

The protocol shall remain open for one year in favor of States represented at the conference of Brussels. Thereafter they can adhere only in conformity with the provisions of article 15.

Article 17.

Where one or the other of the High Contracting Parties shall withdraw from the present convention, this withdrawal shall not have effect until one year after the day when notice shall have been given to the Belgian Government, and the convention shall remain in force between the other contracting parties.

In faith of which the plenipotentiaries of the respective High Contracting Parties have signed the present convention and affixed their seals thereto.

Done in Brussels, in one copy only, the-.

The preceding text has been adopted at the session of the conference at Brussels the fifth October, 1909. Certified by the president of the conference:

(Signed)

Beernaert.

N. B.—The delegations of the countries hereinafter mentioned have declared themselves ready to sign the preceding text ad referendum, and subject to the reservations of the other Governments represented at the conference:

Germany, Argentine Republic, Austria, Belgium, Hungary, Brazil, Cuba, Denmark, United States of America, France, Great Britain, Greece, Italy, Mexico, Nicaraugua, Norway, the Dow Countries, Portugal, Roumania, Russia, Japan, Spain, Sweden.

SCHEDULE C.

Convention relating to the law of salvage.

This convention, except in a few paragraphs, states the law of salvage as it now exists in the United States. We therefore think that it will serve no useful purpose to examine the articles in detail and will confine ourselves to those which have, or may have, the effect of changing existing law.

Article V provides, in substance, that remuneration is due notwithstanding the salved and salving vessels belong to the same owner. This provision would permit the officers and crew of a salving vessel to recover for their services notwithstanding identity of ownership. It might also affect the rights of subrogation of underwriters. The provision would, of course, apply only in a very limited number of cases, and, under our forms of procedure, there might be practical difficulties in the way of applying it at all. Still, we think it a just provision and unobjectionable.

The second paragraph of Article VII is somewhat broader than we would deem desirable. It permits a judge to annul or modify any salvage contract which he may regard as allowing remuneration excessively out of proportion to the services rendered. If this provision applied only to contracts made under the influence of danger, it would be unobjectionable. But these contracts are covered by the first paragraph of the article and the present provision is much broader in scope. So, if this provision applied only in cases of fraud, duress, or concealment, it would be free from objection. But it goes further and grants power to a court to annul a contract freely entered into in good faith with full knowledge on the part of both parties merely because the contract price may seem excessive. But while we consider this provision too broad, the instances in which it would apply would be so few and the possibility of any unjust interference with contractual rights by the courts so remote that we should not consider the presence of this article adequate ground for failing to approve the convention if otherwise unobjectionable.

The second paragraph of Article IX, while not very clearly expressed, must be regarded as giving to salvors of human lives intervening upon the occasion of a common danger the right to share in the salvage due from the property saved. They would not now have this right. We think the provision just and founded upon motives of humanity.

Article X, in prescribing a limitation period for actions of salvage, follows the lines of the similar provision in the conventon relating to the law of collision. What we have said with respect to that provision applies to the present article.

The remaining articles either do not substantially change existing law or are of a formal nature. As a whole we approve the convention relating to the law of salvage.

[Translation.]

International Convention for the Unification of Certain Rules in the Matter of Assistance and Maritime Salvage.

Article I.

Assistance and salvage of seagoing vessels in danger, of property on board, of freight and passage money, as well as services of the same nature rendered between seagoing vessels and vessels engaged in internal navigation are subject to the following provisions, without distinguishing between the two kinds of service and without regard to the waters in which the services have been rendered.

Article II.

Every act of assistance or salvage which has had a useful result gives rise to an equitable remuneration. No remuneration is due if the aid rendered is without useful result. In no case can the sum payable exceed the value of the property saved.

Article III.

Persons who have taken part in operations of assistance against the express and reasonable prohibition of the vessel assisted have no right to remuneration.

Article IV.

The towing vessel has no right to remuneration for assistance or salvage of the vessel towed by it or the cargo except in case it has rendered exceptional services which can not be considered as the fulfillment of the contract of towage.

Article V.

Remuneration is due notwithstanding the fact that the assistance or salvage was between vessels belonging to the same owner.

Article VI.

The amount of the remuneration is fixed by the agreement of the parties, and, in default thereof, by the judge.

The same is the case with the proportion in which this remuneration is to be divided among the salvors.

The division between the owner, master, and crew of each of the salving vessels shall be regulated by the national law of the flag.

Article VII.

Every agreement of assistance and salvage made in the moment and under the influence of danger may, on the request of one of the parties, be annulled or modified by the judge if he considers the conditions agreed upon inequitable.

When it is proved that the agreement of one of the parties has been vitiated by fraud or concealment, or when the remuneration is excessively, in one way or another, out of proportion to the service rendered, the agreement may be annulled or modified by the judge at the request of the party interested.

Article VIII.

The remuneration is fixed by the judge, according to the circumstances, on the following basis: (a) In the first place, the success attained, the efforts and the merits of those who have rendered assistance, the danger incurred by the salved ship, her passengers and crew and her cargo, by the salvors and the salving ship, the time employed, the expenses and losses sustained, and the risks of liability and other risks run by the salvors, the value of the material exposed to risk by them, taking account, as the case arises, of the special sum appropriated for an assisting vessel; (b) in the second, place, the value of the property saved.

The same provisions apply to the division provided for in Article VI, paragraph 2.

The judge may reduce or deny remuneration if it appears that the salvors through their own fault have rendered the salvage or assistance necessary, or have been guilty of theft, receipt of stolen goods, or other fraudulent acts.

Article IX.

No remuneration is due from persons saved, without, however, affecting the provisions of national laws in this respect.

Salvors of human lives are entitled to an equitable share in the remuneration granted to salvors of ship, cargo, and accessories, if they have intervened on the occasion of common dangers.

Article X.

The limitation period for actions for salvage is two years from the date when the operations of assistance or salvage terminated. The reasons for suspending or interrupting this period of prescription are determined by the lex fori.

The High Contracting Parties reserve the right to allow in their legislation, as a cause for extending the time heretofore fixed, the fact that the ship assisted or salved could not be seized within the territorial waters of the State in which the plaintiff has his domicile or principal place of business.

Article XI.

Every captain is bound, in so far as he can do so without serious danger to his vessel, crew, or passengers, to render assistance to every person, even an enemy, found at sea in danger of destruction.

The owner of the ship is not responsible on account of violations of the foregoing provision.

Article XII.

The High Contracting Parties whose legislation does not prohibit the violation of the preceding article pledge themselves to take or propose to their respective legislatures the measures necessary to prohibit this violation.

The High Contracting Parties will communicate, as soon as possible, the laws or regulations which have already been adopted or which shall be adopted in their States in order to carry out the foregoing provision.

Article XIII.

The present convention does not affect the provisions of the national legislation or international treaties with regard to the organization of systems of assistance and salvage by public authority or under their control, and especially with regard to salvage of fishing engines.

Article XIV.

The present convention does not apply to vessels of war and to vessels of state exclusively devoted to public service.

Article XV.

The provisions of the present convention shall be applied with regard to all persons interested when either the assisting or salving ship or the assisted or salved ship belongs to a State of one of the High Contracting Parties, as well as in the other cases prescribed by the national laws.

It is understood, however:

1. That with regard to persons interested belonging to the High Contracting Parties, the application of said provisions may be made subject by each of the contracting States to the condition of reciprocity.

2. That when all persons interested belong to the same State as the court of jurisdiction, the national law and not the convention shall be applied.

3. That without prejudice to the more extended provisions of the national laws, Article XI is applicable only between persons belonging to States of the High Contracting Parties.

Article XVI.

The delegates of the High Contracting Parties shall meet in Brussels three years after the present convention becomes operative, in order to consider the improvements which may be suggested, and especially to extend, if possible, the sphere of application.

Article XVII.

The States which have not signed the present convention are permitted to adhere to it upon their request. Notice of this adherence shall be given through diplomatic channels to the Belgian Government, and by it to each of the Governments of the other contracting parties. It shall become effective one month after the sending of the notification by the Belgian Government

Article XVIII.

The present convention shall be ratified and the ratifications shall be deposited in Brussels as soon as possible. At the expiration of one year at the latest from the day of the signing of the convention, the Belgian Government shall enter into communication with the Governments of the High Contracting Parties which shall have declared themselves ready to ratify it, in order to decide whether the time has come to put it into effect.

The ratifications shall be deposited immediately as the case arises and the convention shall take effect one month after this deposit.

The protocol shall remain open for one year in favor of States represented at the conference of Brussels. Thereafter they can adhere only in conformity with the provisions of Article XVII.

Article XIX.

Where one or the other of the High Contracting Parties shall withdraw from the present convention this withdrawal shall not take effect until one year after the day when notice shall have been given the Belgian Government, and the convention shall remain in effect between the other contracting parties.

In faith of which the plenipotentiaries of the respective High Contracting Parties have signed the present convention and affixed their seals thereto.

Done in Brussels, in one copy only, the-.

The preceding text has been adopted at the session of the conference at Brussels the fifth October, 1909. Certified by the president of the conference.

(Signed)

A. Beernaert.

N. B.—The delegations of the countries hereinafter mentioned have declared themselves ready to sign the preceding text ad referendum, and subject to the reservations of the other Governments represented at the conference:

Germany, Argentine Republic, Austria, Belgium, Brazil, Cuba, Denmark, Spain, Hungary, United States of America, France, Great Britain, Greece, Italy, Mexico, Japan, Nicaragua, Norway, the Low Countries, Portugal, Roumania, Russia, Sweden.

SCHEDULE D.

Plan of convention on limitation of shipowners’ liability.

The subject matter of this projet was fully discussed in the plenary sessions of the conference. There was an apparently irreconcilable conflict between the delegates of Great Britain and those of all other countries as to the underlying question whether the shipowner should be permitted to limit his liability to the value of the vessel and her pending freight after the accident, which is in accordance with our statute and the continental system, or should pay a lump sum per ton, as provided by the British statute.

This question has been discussed at several meetings of the International Maritime Committee (unofficial), and a draft treaty or projet was agreed upon at the meeting of that committee held in Venice in September, 1907, which formed the basis of our discussions at Brussels. The projet de Venise gave the shipowner an option: (1) He might limit his liability by abandoning his vessel, her freight, and certain defined accessories, or substitute for the vessel its value at the end of the voyage; or (2) he might, in lieu of the vessel, freight, and accessories, pay a lump sum of £8 sterling per gross ton of his vessel. These provisions were stated to be a compromise between the continental and American system and the British; but, in our opinion, they merely gave the shipowner an additional privilege. He obtained the benefit of both systems. If his vessel were at the bottom of the sea or so injured as to be of trifling value, presumably he would abandon her or pay her then value; if she were uninjured and worth more than £8 per ton, he would pay that rate.

At the opening of the discussion in the conference the British delegation stated that they had received positive instructions from their Government not to agree to any proposition which limited a shipowner’s liability to the value of ship and freight unless that value were taken prior to the accident. In this connection they also said that their system of limiting liability to £8 per ton (except in case of loss of life, where the limitation is fixed at £15) had worked satisfactorily for many years, and that they deemed it superior to the continental system. They further stated that they appreciated the opposition to their system as a substitute for the continental system and, without further defining their position, expressed the hope that the conference would not adjourn without attempting to prepare a projet which might be submitted to the Governments.

The suggestion was made by the French delegation that merely the question of principle should be presented to the Governments, but it was finally decided to prepare a definite text, and the subcommittee was directed to draft one. Subsequently a draft was presented to the conference in the form attached hereto.

Article I states the application of the proposed convention.

Article II declares that the liability of the shipowner is limited to the value of the vessel, freight, and accessories of vessel and freight pertaining to the voyage:

(1) For damage caused to property and rights of any nature belonging to third persons, on land or on water, by the acts and faults of the master, crew, pilot, or any other person in the service of the vessel.

(2) For damage caused to cargo transported and to other goods and objects on board the vessel, as well as for all other damages caused by a fault of navigation, even in the performance of a contract.

(3) For indemnities of assistance and salvage.

(4) For obligations resulting from contracts made by the master by virtue of his legal power, in case of necessity, away from the home port of the vessel, for the preservation of the vessel and the continuation of the voyage, if the necessity has been occasioned by an accident.

It also provides that when the owner is at the same time the master he is entitled to limit his liability, “but only for faults of navigation.”

It will be observed that these provisions are far more restricted than those of our own statute. Under our law, an owner may limit his liability for contractual obligations if incurred by the managing owner without his privity or knowledge. Indeed, broadly speaking, the liabilities against which exemption is given by our statute are those for which suit may be brought in rem or inpersonam, provided they do not arise from the personal fault or act of the owner.

Article III defines the term “freight” as used in the preceding article as hire or freight without deduction, including freight or hire paid in advance, still due, or earned in any event—passage money and demurrage being assimilated to freight.

This article also defines the accessories to be surrendered with the vessel and freight as (1) sums paid or due the shipowner for general average; (2) indemnities paid or due for repairs, etc.; (3) sums paid or due for salvage. Under our law the owner does not have to account for salvage earned during the voyage. The article excludes from the accessories insurance moneys, subventions, and subsidies.

Article IV provides that any claim with regard to which limitation of liability is not permitted must be made good by the owner personally in determining the value of the vessel for the purposes of limitation.

Article V provides that “the owner may substitute for the vessel its value at the end of the voyage.” The end of the voyage is defined in Article VII.

Article VI is the provision inserted at the request of the British delegation, which gives the shipowner the option of the Venice projet, to which we have already directed attention. While not clearly so stated, this article is manifestly an alternative for Article V. The owner has the right to free his vessel, freight, and accessories from liability “by payment of a sum corresponding for the voyage to £8 sterling per gross ton of his vessel.”

Article VIII contains two alternative methods of determining the freight to be surrendered in case the owner elects to follow the continental system.

Article IX permits the owner, in the interest of whom it may concern, to take “every useful measure in what concerns the ship without losing the right to exercise the options” above provided, and makes him responsible for all loss which the vessel suffers in consequence of a new voyage in prejudice of creditors with regard to whom limitation is permitted.

Article X declares that the provisions of the convention shall not affect the right of creditors to seize the vessel.

Article XI declares that the previous provisions do not apply to the obligations derived from personal faults of the owner, from contracts made by him, or from those which he has authorized or ratified.

Article XII extends the right of limitation to managers, charterers, and subfreighters of vessels under ceretain conditions.

Article XIII states that the proposed convention shall not apply to claims for loss of life or personal injuries, which shall be regulated by national laws. This article would make a most important change in our law should it be adopted and no supplemental legislation be enacted.

Returning to the underlying question of the option provisions, it is impossible, in our opinion, to reconcile or combine the British system with our own. Of course much may be said in favor of a system of fixed liability. Such a system, broadly speaking, favors the cargo owner. But such a system, with the option of surrendering the vessel, operates more strongly againt the cargo owner than either system alone. Granting the shipowner the alternative is wholly in his favor, although the ton-rate liability might be placed at so high a figure that he would seldom choose that method. Several of the continental delegates, notably the Norwegian and Swedish, stated that £8 per gross ton was far in excess of the average value of their vessels. But still the right to choose the British system would in many cases constitute a privilege of great value to the shipowner, to which, in our opinion, he is not entitled. We think our present limitation of liability statute goes far enough in the direction of favoring the shipowner, and we see no possible reason for giving him any further privileges. On the other hand, the policy of this country is so well established and the statute adopted in 1851 is so generally approved as to make it out of the question that the British system should now be substituted for it. In our opinion, the basis of liability as fixed by our law should remain unchanged. But it is proper to say that we feel certain that no convention upon limitation of liability can be agreed upon unless the Government of the United States is prepared to accede to the option proposed.

In addition to the option clauses there are several of the articles which, were the projet in more complete form, we should deem it necessary to criticize. But as most of these criticisms would relate to matters of form which may be corrected by the committee of the conference, we have thought it desirable at the present time to go no further than to outline the scope of the different articles and especially to call the attention of the department to the operation and effect of the option provisions.

[Translation.]

Basis of a Plan for a Convention on the Limitation of Shipowners’ Liability, Submitted to the Study of the Governments Interested.

(6–7 October, 1909.)

Article I.

The provisions of the present convention shall be applied in each contracting State when one of the interested parties belongs to another contracting State, as well as in the other cases provided for by the national laws.

Nevertheless, the principle formulated in the foregoing paragraph does not affect the rights of the contracting State not to apply the provisions of the present convention in favor of persons belonging to a noncontracting State.

Article II.

The owner of a vessel is liable only to the value of the vessel, freight and accessories of vessel, and freight relating to the voyage:

1. For damage caused to property and rights of any nature belonging to third persons, on land or on water, by the acts and faults of the master, crew, pilot, or any other person in the service of the vessel.

2. For damage caused to cargo transported and to other goods and objects on board the vessel, as well as for all other damages caused by a fault of navigation, even in the performance of a contract.

3. For indemnities of assistance and salvage.

4. For obligations resulting from contracts made by the master by virtue of his legal powers, in case of necessity, away from the home port of the vessel, for the preservation of the vessel and the continuation of the voyage, if the necessity has been occasioned by an accident.

When the owner of the vessel is at the same time master, the same limitation applies, but only for faults of navigation.

Article III.

The freight mentioned in Article II is hire or freight without deduction, whether freight or hire paid in advance, freight or hire still due, or freight or hire earned in any event.

Passage money and demurrage are, from the point of view of the present convention, assimilated to freight.

The accessories mentioned in Article II are:

1. Indemnities paid or due to the owner of the vessel for general average, in so far as they make good either material damage, sustained by vessel and not repaired, or losses of freight.

2. Indemnities paid or due for the repair of damage, whether sustained by the vessel and not repaired, or losses of freight.

3. Sums paid or due the owner of the vessel for assistance or salvage, deduction being made of sums awarded to the master and crew.

Indemnities due or paid by virtue of contracts of insurance, premiums, subventions, or other national subsidies are not considered accessories of the vessel.

Article IV.

If a right of preference on the vessel or the freight exists in favor of creditors with regard to whom limitation of liability is not permitted, the owner of the vessel shall be held liable personally to make good in cash, up to the amount deducted by these creditors, the value forming the limit of his liability.

Article V.

The owner may substitute for the vessel its value at the end of the voyage.

Article VI.

The owner has the right to free the vessel, freight, and accessories mentioned in Article II by payment of a sum corresponding for the voyage to £8 sterling per gross ton of his vessel.

This provision is not applicable to indemnities of assistance and salvage, nor to the cases provided in paragraph 4 of Article II.

Article VII.

The voyage is deemed finished for the vessel at the first port of call or discharge which it reaches after the event which gives rise to the claim, or at the port in which it is found when this event happens.

If the place where the event is produced is not determined, the voyage is deemed finished at the point where the execution of the obligation giving rise to the claim ought to terminate.

Article VIII.

For the freight different formulae have been indicated:

1. The freight and accessories mentioned in Article III and the freight and accessories earned from the beginning of the voyage to the port determined in Article VII.

2. Substitute for the freight, passage money, demurrage and accessories mentioned in Article III, a lump sum calculated per ton, taking account of the part of the voyage already performed and the nature of the vessel.

Article IX.

The owner may take, in the interest of whom it may concern, every useful measure in what concerns the ship, without being deprived of the right of exercising the options provided by the foregoing provisions.

He is responsible for all deterioration or loss which, in consequence of a new voyage, may come to the vessel in prejudice of the creditors with regard to whom limitation is permitted.

Article X.

The foregoing provisions do not affect the right of the creditors to seize the vessel.

Article XI.

The foregoing provisions do not apply to the obligations derived from personal faults of the owner, from contracts made by him, or from those which he has authorized or ratified. They are applicable to the obligation to remove the wreck of a sunken vessel and to the responsibilities attaching thereto, whether there has been fault on the part of the master or not.

Article XII.

If the manager of a vessel who is not the owner is responsible for the obligations with regard to which the liability of the owners is limited, according to the present convention, he has a right to the same limitation.

If the subfreighter is responsible for obligations resulting from contracts of subaffreightment, he has a right to this limitation, so far as the captain is charged with the execution of these contracts by the receipt of the merchandise or the signing of a bill of lading.

Article XIII.

The present convention does not apply to claims for loss of human lives or for personal injuries, which continue to be regulated exclusively by national laws.

Nothing in the foregoing proceedings affects the competence of tribunals, procedure, and methods of execution prescribed by national laws.

SCHEDULE E.

Plan of convention on hypothecations and maritime liens.

This projet was discussed fully in the subcommittee (sous commission), but not to any considerable extent in the plenary session of the conference, and is now submitted to the several governments for consideration and study.

In the discussions in the subcommittee the British delegation sought to reduce and limit the liens, while the German delegation was in favor of correlating the treaty on liens with that on limitation of liability, giving the shipowner the right to limit his liabilty only in those cases where a lien exists and not elsewhere.

Article I provides that hypothecations, mortgages, and pledges on vessels, regularly proved according to the law of the flag and properly recorded, shall be respected in all other countries and shall have the same force as in the country of origin. The Italian delegation, supported by delegates from Austria, Belgium, and other countries, suggested that mortgages should be noted on the ship’s papers, but this suggestion was not adopted.

Article II provides that all formal hypothecations are subordinated to liens, which is in accordance with our law.

Article III represents many compromises. It defines and limits the number of liens and fixes their rank. It would, of course, be advantageous to shipowners if there were uniformity in the law as to maritime liens. As in many countries, these liens require no formality for their creation and are therefore secret in their nature; a shipowner is greatly prejudiced by the practical impossibility of knowing to what liens his vessel will be subjected in the various ports which she enters. Subdivision 4 of this article marks a radical departure from our law. It is as follows:

“Obligations for furnishing and repairing and other obligations for the same purpose contracted by the master in case of necessity away from the home port for the preservation of the vessel, or the continuation of the voyage, in so far as the acts have been necessitated by an actual need, whether the master is or is not at the same time owner of the vessel and whether the obligation is his own or that of the furnishers, repairers, lenders, or other contractors.”

Under our law repairs and supplies made and furnished to a vessel away from her home port upon the credit of the vessel constitute a lien, but in the proposed convention such repairs and supplies do not give rise to a lien unless they were contracted for by the captain, in a case of necessity, away from the home port, for the preservation of the ship or the coninuation of the voyage, in so far as these were necessitated by an actual need. In such case it makes no difference whether the captain is or is not an owner of the ship, nor whether the obligation is his own or that of the furnisher, repairer, or lender or other contractor.

Under this proposed convention if a British vessel were repaired at Newport News the shipwright who made the repairs would not have a lien if the repairs had been ordered by the owner instead of by the captain, or if the repairs were not found necessary for the preservation of the ship or the continuation of the voyage. It is claimed that the shipwright should not be given a maritime lien, except in the circumstances specified, for two reasons: (1) He has his common-law lien and need not part with the possession of the ship which he has repaired until he is paid; (2) when repairs, are ordered by the owner it is an easy matter for the shipwright to obtain security for the payment of the debt under modern conditions of business, especially the facility of telegraphic communication.

It is to be observed that no lien is given the cargo against the carrying ship. This would involve a radical change in our law, a cardinal principle of which is that the ship is bound to the cargo and the cargo to the ship. While it is true that the Harter Act affords a complete defense to many claims for cargo damage or loss, still where the negligence of the carrying vessel is due to defective stowage, or where the damage results from unseaworthiness, the cargo owner can recover from the ship and has a lien for his damage.

Again, no lien is given for towage, which is contrary to the settled law of this country. The argument in favor of taking away this right was that claims for towage are of small amounts. This, however, is not true of the United States, where vessels are frequently towed for long distances, as from the West Indies to Atlantic ports, and even from our Atlantic ports to Europe.

Again, no lien is given for bottomry or general average. As to bottomry, it is said that bottomry bonds are very rare, and the provisions of subdivision 4 of Article III give equivalent liens for master’s drafts.

Articles IV and V fix the priority of liens, and are substantially in accordance with our law.

Article VI makes the limitation period for bringing an action on a lien two years, except in case of wages and the other claims mentioned in subdivision 3 of Article III, in which case the limitation period is one year.

Article VII defines the kinds of freight subject to lien, as follows:

Hire or freight in the hands of the freighter, loader, consignee, master, agent, or any other third person.

Article VIII provides that liens are subject to no special formality, which is in conformity with the British law and our own.

Article IX declares that liens may be enforced against vessels, even when employed by persons other than the owner.

Article X defines the accessories of a vessel in substantially the same terms as in the projet on limitation of liability.

Article XI relates merely to the application of the proposed convention, and Article XII declares that the convention shall not apply to state vessels.

This projet, as drafted by the subcommittee, is in rather rough form, and will, undoubtedly, be materially changed in the plenary sessions of the conference. While we regard several of its provisions as of doubtful expediency, we think that, as a whole, it marks a long advance toward uniformity; and in no subject of maritime law is uniformity more desirable than in the case of hypothecations and liens.

[Translation.]

Basis of a Plan for a Convention on Hypothecations and Maritime Liens Submitted to the Study of the Governments Interested.

(6–7 October, 1909.)

Article I.

Hypothecations, mortgages, pledges on ships regularly made according to the laws of the contracting State to which the vessel belongs and registered in a public registry at the home port or in a central office of registration shall be respected in all the other countries and shall have the same effect as in the country of its origin.¹

Article II.

The rights mentioned in the preceding article are subordinated to liens.

Article III.

The following are the only liens on the vessel, her accessories, and the hire or freight on the voyage during which the privileged obligation arose, which rank in the order following:

1. Court expenses, rights of tonnage, light-house or port charges and other taxes and public imposts of the same kind; expenses of creating and preserving since the entry of the ship into the last port.

2. Obligations resulting from the contract of engagement of master, crew, or or other persons shipped in the service of the vessel, and pilotage expenses.

3. Indemnities due for salvage and assistance and the contribution of the vessel to general average.

4. Obligations for furnishing and repairing and other obligations for the same purpose contracted by the master in case of necessity away from the home port for the preservation of the vessel, or the continuation of the voyage, in so far as the acts have been necessitated by an actual need, whether the master is or is not at the same time owner of the vessel and whether the obligation is his own or that of the furnishers, repairers, lenders, or other contractors.

5. Indemnities due another ship, her cargo, crew, or other passengers by reason of a collision or any other accident resulting from a fault in navigation.²

Article IV.

The rank of liens relating to the same voyage is regulated in conformity with the enumeration set forth in Article III. Obligations mentioned in the same number of this article are prorated.

But obligations enumerated in Article III, numbers 3 and 4, rank in inverse order from the date of their origin, obligations resulting from the same case of necessity being considered as created at the same time.

Where the obligations mentioned in Article III, number 4, arise out of disbursements made or personal engagements contracted by the master, they are preferred to other obligations mentioned in this provision.

Article V.

If the obligations do not relate to the same voyage, the liens for the obligations of a later voyage are preferred to the obligations of an earlier voyage.

Article VI.

The lien is extinguished at the expiration of two years from the creation of the obligation.

For obligations mentioned in Article III, number 2, this period of prescription is one year. This period runs from the day when the service terminated.

Causes of suspension and interruption of this period of prescription are determined by the lex fori.

The High Contracting Parties reserve the right to allow in their legislation, as a cause for suspending the time heretofore fixed, the fact that the defendant ship could not be seized within the territorial waters in which the plaintiff has his domicile or principal place of business.

Article VII.

The lien on the hire or freight may be exercised so long as the hire or freight is in the hands of the freighter, loader, consignee, master, or any other third person. It is extinguished when freight is encashed by the owner personally.

Article VIII.

The liens established by the preceding provisions are subject to no formality and to no special condition of proof.

Article IX.

The foregoing provisions are applicable to ships managed or employed by persons other than their owner except when the owner has been dispossessed by an illicit act and when, besides, the creditor is not a bona fide creditor.

Article X.

The accessories mentioned in Article III are:

1. Indemnities paid or due to the owner of the vessel for general average in so far as they make good either material damage suffered by the vessel and not repaired or losses of freight.

2. Indemnities paid or due for repairing losses, whether they are losses sustained by the vessel and not repaired or losses of freight.

3. Sums paid or due to the owner of the vessel for assistance or salvage, deducting sums awarded to the master or crew.

Indemnities due or paid by virtue of contracts of insurance, premiums, subventions, or other national subsidies are not considered accessories of the vessel.

Article XI.

The provisions of the present convention shall be applied in each contracting State when one of the parties interested belongs to another contracting State, as well as in the other cases provided in the national laws.

But the principle formulated in the foregoing paragraph does not affect the right of the contracting State not to apply the provisions of the present convention in favor of persons belonging to a noncontracting State.

Article XII.

The present convention does not apply to vessels of state.

1. Note 1.—Certain objections have been made to the words in italics; it is understood, first, that the questions of procedure, second, sovereign rights in case of contraband of war prizes, etc., are not affected by the provisions.
2. Note 2.—The closing protocol shall contain the following provision: It is understood that each State is free by legislation to give to the authorities of the State or other public authorities which have removed a wreck or other object interfering with navigation the right to sell these objects and indemnify themselves from the proceeds for the expenses of removal in preference to other creditors. It is also understood that the national legislation may give a lien to public insurance institutions for the obligations resulting from the insurance of the personnel of vessels.