Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1910

The Acting Secretary of State to the American Delegation.¹

Department of State,
Washington, August 23, 1910.

Gentlemen: You are informed that the International Conference on Maritime Law will reconvene at Brussels on September 12 next, and you are instructed to proceed to that capital accordingly and resume your participation in its sessions and deliberations. If you deem it advisable to do so, you are authorized to arrange for preliminary consultation with your British colleagues, in order that those principles of law affecting the subjects submitted to the conference which are common to the jurisprudence of America and England may be invoked, if possible, with the weight which would naturally result from agreement between the American and British representatives.

Considering the conventions approved by the conference and referred to the several Governments—

I. The convention for the unification of certain rules in the matter of collision—

The most important point is found in that part of Article IV which provides that in cases of collision with mutual fault damages to cargo shall be apportioned in proportion to the fault “without solidarity,” the rule so stated being at variance with the Harter Act of February 13, 1893 (27 Stat., 445), which, as construed by the Supreme Court, relieves the carrying ship from liability for damages to cargo in such cases, but allows the noncarrying ship to recover contribution from the carrier. The reservation as to the effect of national laws in the last paragraph of Article IV relates only to persons on board, and the question arises whether the provsion of Article X that the convention shall “not affect the nature and extent of shipowners’ liability as they are regulated in each country,” preserves the Harter Act, which must be regarded as defining the settled policy of the United States respecting both the relief of carrying ships from direct responsibility and their indirect responsibility for injury to cargo. The department is inclined to think that the language of Article X sufficiently guards and preserves the Harter Act and all the various exemptions, liabilities, and rights thereunder as established by the decisions, but out of abundance of caution you are hereby instructed to procure the insertion in the protocol of an explicit reservation on the subject on behalf of the United States. The precise form of such reservation is committed to your judgment with the following suggestions: The Maritime Law Association of the United States, in a resolution adopted at a meeting held in New York on January 28, 1910, approving the convention in general, has proposed the following form of condition to be inserted in the protocol:

* * * That Article X of this convention shall be understood as reserving all rights given by the statute of the United States of February 13, 1893 (27 Stat., 445), entitled “An act relating to the navigation of vessels, commonly known as the ‘Harter Act.”’

Various exporting interests have, however, opposed the convention on the theory that the combined effect of Articles IV and X is greatly to impair the cargo-owner’s rights and protection, for since he can not sue the carrying ship under the Harter Act, and Article IV of the convention will not permit him to recover from the stranger ship more than the proportion of its share of responsibility he will have to bear a large part of the loss himself, and where the noncanying ship is not in fault the entire loss will fall on him. It is urged in this connection that the result would be that cargo owners would have little protection and insurance rates would increase so as to be almost prohibitive. It seems clear to the department that in preserving “shipowners’ liability,” as regulated in each country, Article X embraces noncarrying as well as carrying vessels “as they are regulated in” this country, and that the liability of both would be unaffected by the provisions of Article IV; in other words, that so far as this country is concerned Article X practically nullifies Article IV. Nevertheless the point suggested in favor of cargo owners is entitled to full consideration, and since this objection to Article X may apply equally to the mere reservation of the Harter Act, as intended only to protect the owners of carrying vessels, it is suggested, in order to obviate these difficulties and to avoid the evils which it is claimed will flow from the combination of Article IV of the convention and section 3 of the Harter Act working together, that the provision to be inserted in the protocol should be in substance as follows:

Article X of this convention shall be understood as reserving all rights secured by the statute of the United States of February 13, 1893 (27 Stat., 445), commonly known as the Harter Act, and as preserving the established rule in the United States that the owner of the noncarrying vessel may be liable for the whole amount of the damage, caused to the cargo.

You will also procure the insertion in the protocol of a paragraph providing that the convention shall apply only to courts of admiralty and maritime jurisdiction, and of a paragraph prescribing that the provision of Article VI, that there are no legal presumptions of fault so far as responsibility for collision is concerned, shall not affect legal presumptions created by the laws of the United States.

Regarding Article VII and the necessity of supplemental legislation by Congress to define the causes of suspension of the limitation of actions, you are instructed to consider the subject and to submit in due course a draft of a statute for that purpose.

With respect to the effect of the convention upon suits in personam as distinguished from suits in rem, with especial reference to the last paragraph of Article VII and to Article X, it seems to have been the intention of the conference to embrace both forms of action. However, if after full consideration and conference among yourselves you reach the conclusion that there is doubt on this point and that such an objection is serious, you will take the necessary steps looking to the amendment of the convention accordingly, either in the body thereof or by an appropriate and adequate paragraph in the protocol.

Subject to the limitations and instructions above stated, and in accordance with your own recommendations, this convention is approved by the department, and you are hereby fully empowered and directed to sign the same on behalf of the Government of the United States.

II. The convention relating to the law of salvage.

After due consideration of the criticisms directed by you at the provisions of Articles V and VII, the department concurs with you in thinking that they do not present adequate grounds for failing to approve the convention.

As to Article X you are directed, as in the case of Article VII of the convention respecting collisions, seasonably to submit a draft for an act of Congress defining the causes of the suspension of the limitation period.

You are hereby empowered and directed to sign on behalf of this Government the convention relating to the law of salvage. Considering the two proposed pro jets:

III. Plan of convention on limitation of shipowners’ liability.

Subject to your general powers to participate in the conference ad audiendum et ad referendum, the further development of this projet on the part of our Government is largely committed to your judgment and discretion and you are authorized to offer such amendments to the plan as you may deem essential or desirable. The department awaits your further reports and such comments or criticisms as you anticipate may be appropriate to be addressed to several of the articles when the pro jet is in more complete form. It is deemed necessary now to add only the particular instruction respecting the proposed option to a shipowner as to limitation of liability—viz, by abandonment, substitution of value, or payment of a lump sum—to stand firm for our own rule of the value of the vessel and her pending freight, after the accident, as going far enough in the direction of favoring the shipowner. It seems likely that the Continental delegates would support you in this position, and it is possible that unofficial consultation with the British delegates may result in agreement, as, for example, on the basis of value of vessel and freight at the moment of the accident as distinguished from the value taken before, to which apparently the British Government would assent, and the value after, which is our own statutory rule. It seems natural to think that there is some such point or moment between the beginning and end of the voyage which would be in equilibrium between the opposing views. It is for you to determine in the first instance whether or not such a compromise or any other possible adjustment would be sensible and on the whole advantageous.

IV. Plan of convention on hypothecations and maritime liens.

You will act under the same general instructions respecting this pro jet as were given respecting the project on limitations of liability. As you remark, this projet is still in rather rough form and doubtless will undergo material alterations in the plenary sessions of the conference. The proposals contain more numerous changes from existing American law than the plan on limitation of liability. As to the nature and number of maritime liens and what obligations and liabilities are entitled to that rank, and the other of precedence of liens, you will diligently endeavor to obtain acceptance of the American rules and reasons, unless after careful consideration you are of the opinion that any particular proposal or proposals would affect a desirable reform or evolution in our own law or would constitute a justifiable concession to the harmony and uniformity at which the conference aims. You will be guided by the same principle in regard to other variations from our own doctrines of law.

Your attention is especially called to the fact that, as you note, no lien is proposed in favor of the cargo against the carrying ship for loss due to unseaworthiness or to negligence in the loading, stowage, custody, or delivery of the cargo. It is very important, in the opinion of the department, to obtain all possible protection for shippers consistent with the Harter Act.

Congress having passed at the last session a law relating to liens for maritime repairs and supplies, you will regard that enactment as a recent declaration of the policy of this country and will not agree to any stipulations which would conflict with the same.

It is also desirable to add the following suggestions, which are not, however, to bind you as if they were positive instructions:

Those liens which you deem important and which are omitted from the proposed plan in its present form, and the following liens in particular, (1) in favor of cargo owners or passengers for damage to cargo or baggage in violation of contracts of affreightment and for other violations thereof; (2) for torts other than collision; (3) for towage, wharfage, lightering, etc.; (4) for personal injuries sustained by passengers or crew; (5) for loss of life should be maintained and insisted on unless, as has already been indicated, some concession or compromise is proposed which meets your approval. As to the Hen for loss of life, it seems desirable that the right of action on which it should rest should be explicitly created by the convention, or that a suitable stipulation should reserve to the several countries the right and duty of legislating to that end, where such legislation is necessary.

You are informed that the Maritime Law Association at the meeting last January, referred to above, adopted also the following resolution:

That each of the proposed conventions in regard to limitation of owner’s liability and hypothecation and maritime liens be referred to a committee of five of this association, to be appointed by the president, to examine the same and report to the association at its next meeting whether the same should be adopted as proposed, and, if not, what changes or amendments should be made therein.

When the department receives the said report it will be forwarded to you, and it is suggested that informal application by you to the association may expedite its transmission.

You are also informed that recent diplomatic correspondence presents, on the part of the Governments of Belgium, Germany, and the Netherlands, the question of the application of the conventions respecting collision and salvage to the respective colonies and possessions of the interested powers. It is the opinion of the Department of Commerce and Labor, to which the question was referred by this department for an expression of views on the practical aspects, that the conventions may with propriety be applied to the insular possessions of the United States. You will consider the subject carefully in the light of the suggestions, first, that legislation by Congress would apparently be necessary, since, for example, it is uncertain whether under existing legislation the Harter Act is in force in the Philippine Islands, as would clearly seem essential if the convention on collisions is to be applied there; and, second, that both conventions stipulate for another conference three years hence to consider maturely improvements which may be suggested and the extension of the sphere of application. Nevertheless, the question of the proper attitude of this Government at present is entrusted to your judgment and discretion. It is not intended to discourage the immediate extension of the conventions as widely as possible. Necessary legislation might follow the agreement, as in the case of the suspension of statutes of limitation. If, therefore, you deem it advisable to agree ad referendum to the extension of the stipulations of the conventions to colonies and possessions, you will submit a draft of such legislation as you consider essential for that purpose.

Expressing the hope that your mission and its duties may be agreeable and the results harmonious and satisfactory to yourselves and your respective colleagues,

I am, etc.,

Alvey A. Adee.

1. Walter C. Noyes, chairman; Charles C. Burlingham, A. J. Montague, and Edwin W. Smith. For report of American delegates, see Foreign Relations, 1911.