Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1911
File No. 585.7A2/266.
The American delegates to the Third International Conference on Maritime Law to the Secretary of State.
Sir: I have the honor to send herewith the report of the American delegates to the Third International Conference on Maritime Law with respect to the Convention on the Law of Collisions. This is in lieu of our original report with regard to this convention2 and that with respect to the law on salvage,2 which was submitted November [Page 18] 5, 1910. At the request of the Department we have now made separate reports with regard to these two conventions. We submitted that as to the law of salvage a few days ago.
I am [etc.],
Report of the American Delegation on the Convention Relating to Collisions.
To the honorable the Secretary of State:
The delegates of the United States designated to attend the reconvening of the Third International Conference on Maritime Law at Brussels on September 12, 1910, have the honor to report:
In accordance with our instructions from the Department of State, we attended and participated in the sessions and deliberations of the reconvened conference, which were attended by the representatives of 26 nations. Mr. Gaston de Leval, the Belgian advocate who assisted us at the last session, again gave us valuable aid as counsel.
At the opening of the conference we stated that we were authorized to sign the convention relating to collisions, with certain reservations. Later we presented to the conference certain observations relating to the proposed convention on collisions, a translation of which observations is attached to this report, marked Appendix B. Subsequently we made a formal statement of the reservations subject to which we were prepared to sign the conventions. These reservations are as follows:
The delegates of the United States of America to the International Conference on Maritime Law deem it their duty to demand that entry be made in the protocol relating to the international conventions for the unification of certain rules in the matter of collisions, that said delegates sign said convention in the name of the United States only under the following reservations:
- 1.
- The provisions of article 4 of said convention shall not affect the operation, or enforcement of the act of Congress entitled “An act relating to navigation of vessels,” etc., approved February 13, 1898, commonly known as the Harter Act.
- 2.
- The provisions of articles 1 and 4 of said convention shall not create in the United States a right of action for damages caused by death until such provisions shall have been supported by appropriate action of the Congress of the United States.
- 3.
- The provisions of article 6 of said convention shall not in any way affect legal presumptions created by the laws of the United States.
- 4.
- The provisions of said convention with respect to fault and damages as well as remedies, shall be applicable in the United States only in the courts of admiralty and maritime jurisdiction.
On September 23, 1910, we signed the convention, subject to the foregoing reservations and subject also to the reservation which we made with regard to the convention on salvage, as follows:
The Government of the United States of America declares that it reserves the right to adhere to said conventions and to denounce them for the insular possessions of the United States of America.
Annexed hereto is a translation of the convention, which is identical with that adopted by the British delegates.1 No official translation of the convention was made or authorized by the conference.
The most important change in our law made by the convention on collisions is the substitution of several liability in proportion to the gravity of fault for joint liability to be shared equally by the tort feasors as between themselves. Article 4 provides that—
If two or more vessels are in fault, the liability of each vessel:1s in proportion to the degree of the faults respectively committed, provided that, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or, if it appears that the faults are equal, the liability is apportioned equally.
This article provides further that damages caused to cargoes or property of crews, passengers, or other persons on board a vessel are to be borne by the vessels in fault “in the above proportions.”
In cases of mutual fault our courts of admiralty divide the damages arbitrarily in equal parts, the vessel slightly at fault and the vessel grossly at fault bearing the same burden.
[Page 19]In our report to the Secretary of State of the proceedings of the conference in 1909 we stated at length our reasons for recommending the adoption of a provision which apportions responsibility according to the degree of liability. We were convinced that proportional liability was not only more rational than our present rule, but was also thoroughly practicable. We expressly limited the effect of the new rule, however, so that it should be applied in the United States not in the common law courts, but only in courts of admiralty and maritime jurisdiction.
The extension of the rule of proportional liability to cargo damage undoubtedly limits the existing rights of cargo owners, who, under our present law in case of a collision due to the fault of two vessels, may recover the whole of their damages from the noncarrying vessel even though the carrying vessel is protected from liability by the Harter Act. Cargo owners are thus able to take advantage of an anomalous situation. If a cargo is lost or damaged through a collision resulting from a fault or error in navigation or in the management of a carrying vessel, the owner of which has used due diligence to make her seaworthy, the Harter Act deprives the cargo owner of any remedy. If the loss results from the negligence of the carrying vessel, combined with the negligence of a noncarrying vessel, the cargo owner may collect his whole damage from the noncarrying vessel, which pays not only for its own negligence, but for that of the carrying vessel, obtaining, however, under the decisions of the Supreme Court, notwithstanding the Harter Act, contribution from the carrier. . The result is that if a carrying vessel does all the damage it pays nothing; if it does part of the damage it pays one-half.
As the Harter Act, which we assume defines the policy of the United States, relieves shipowners from direct responsibility for injury to cargo, it seems logical that shopowners should be relieved from indirect responsibility.
Doubt having arisen as to the effect of articles 4 and 10 of the convention on the Harter Act, we made the reservation numbered 1. It was impossible to preserve the rule of our courts making the noncarrying vessel liable in the first instance for the whole amount of the damage caused by the cargo. Such a rule would contravene the underlying principles of the convention.
The second reservation, which provides that “Articles 1 and 4 of the convention shall not create in the United States a right of action for damages caused by death until such provision shall have been supplemented by appropriate action of the Congress of the United States,” was necessary, as Congress has not yet legislated on this subject, and we deemed it our duty not to seek to establish a remedy by treaty when the matter was already before Congress for action.
The third provision, with regard to presumptions created by the laws of the United States, is not of great importance, as there are few statutory or other legal presumptions relating to collisions in our law. There are many such presumptions, however, in the laws of other countries, and it was for that reason that the conference adopted article 6, which provides that “all legal presumptions of fault in regard to liability for collision are abolished.”
Article 5, which establishes liability in case of collision caused by the fault of a pilot, even though compulsory, brings the general law into harmony with our own.
Article 7 prescribes a limitation period of two years for bringing suits for collision, which we deemed a reasonable provision.
Awaiting your further instructions, we have the honor to be, sir,
Your obedient servants,
- Walter C. Noyes.
- Charles C. Burlingham.
- Edwin W. Smith.
- A. J. Montague.
Convention for the Unification of Certain Rules in Regard to Collisions.
Article 1.
Where a collision occurs between seagoing vessels or between seagoing vessels and vessels of inland navigation the compensation clue for damages caused to the vessels, or to any things or persons on board, thereof, shall be settled in accordance with the following provisions, in whatever waters the collision takes place.
[Page 20]Article 2.
If the collision is accidental, if it is caused by force majeure, or if the cause of the collision is left in doubt, the damages are borne by those who have suffered them.
This provision is applicable where the vessels, or any one of them, are moored at the time of the accident.
Article 3.
If the collision is caused by the fault of one of the vessels, liability to make good the damages attaches to the one which has committed the fault.
Article 4.
If there is mutual fault, the liability of each vessel is in proportion to the gravity of the faults respectively committed; but if, according to the circumstances, the proportion can not be established, or if it appears that the faults are equal, the liability is apportioned equally.
The damages caused either to the vessels, or to their cargoes, or to the effects or other property of the crews, passengers, or other persons on board, are borne by the vessels in fault in the above proportions without joint liability toward third parties.
In respect of damage caused by death or personal injury, the vessels in fault are jointly liable to third parties without prejudice, however, to the right of contribution belonging to the vessel which has paid a larger part than that which in accordance .with the provisions of the first paragraph of this article she ought ultimately to bear.
It is left to the law of each country to determine, as regards such right to obtain contribution, the meaning and effect of any contract or provision of law which limits the liability of the owners of a vessel toward persons on board.
Article 5.
The liability imposed by the preceding articles attaches, in cases where the collision is caused by the fault of a pilot, even when pilotage is compulsory.
Article 6.
The right of action for the recovery of damages resulting from a collision is not conditional upon the entering of a protest or the fulfillment of any other special formality.
There are no legal presumptions of fault so far as responsibility for the collision is concerned.
Article 7.
Actions for the recovery of damages are barred after an interval of two years from the date of the accident.
The period within which the right of contribution allowed by paragraph 3 of article 4 must be exercised is one year. This limitation runs only from the date of payment.
The grounds upon which the said periods of limitation may be suspended or interrupted are determined by the law of the court where the case is tried.
The high contracting parties reserve to themselves the right to provide by legislation in their respective countries that the said periods shall be extended in cases where it has not been possible to arrest the defendant vessel in the territorial waters of the State in which the plaintiff has his domicile or his principal place of business.
Article 8.
After a collision, the master of each of the vessels in collision is bound, so far as he can do so without serious danger to his vessel, her crew, and her passengers, to render assistance to the other vessel, her crew, and her passengers.
He is likewise bound, so far as possible, to make known the name of his own vessel and the port to which she belongs, and also the names of the ports from which she comes and to which she is bound.
[Page 21]A breach of the above provisions does not impose any liability on the owner of a vessel.
Article 9.
The high contracting parties whose legislation does not forbid infringements of the preceding article bind themselves to take or to propose to their respective legislatures the measures necessary for the prevention of such infringements.
The high contracting parties will communicate to one another, as soon as possible, the laws and regulations which have already been or may be hereafter promulgated in their States for giving effect to the above undertaking.
Article 10.
Under reservation of the conventions which may subsequently be made, the provisions of this convention do not affect in any way the law in force in each country with regard to the limitation of shipowner’s liability, nor do they affect the legal obligations arising from contracts of carriage or from any other contract.
Article 11.
This convention does not apply to ships of war or to Government ships appropriated exclusively to a public service.
Article 12.
The provisions of this convention shall be applied as regards all persons interested when all the vessels concerned in any action belong to contracting States and in any other cases for which the national laws provide.
Provided always that:
- 1.
- As regards persons interested who belong to a noncontracting State, the application of the above provisions may be made conditional upon reciprocity.
- 2.
- Where all the persons interested belong to the same State as the .court trying the case, the provisions of the national law and not of the convention are applicable.
Article 13.
This convention extends to the making good of damages which a vessel has caused to another vessel or to goods or persons on board either vessel, either by the execution or nonexecution of a maneuver or by the nonobservance of the regulations even if no collision has actually taken place.
Article 14.
Any one of the high contracting parties shall have the right, three years after this convention comes into force, to call for a fresh conference, with a view to seeking such ameliorations as may be brought therein, and particularly with a view to extending, if possible, the sphere of its application.
Any power exercising this right must notify its intention to the other powers through the Belgian Government, which will see to the convening of the conference within six months.
Article 15.
States which have not signed this convention are allowed to adhere to it on request. Such adhesion shall be notified through the diplomatic channel to the Belgian Government, and by that Government to each of the other Governments; it shall become effective one month after the sending of the notification by the Belgian Government.
Article 16.
This convention shall be ratified.
After an interval of at most one year from the day on which the convention is signed the Belgian Government shall place itself in communication with the Governments of the high contracting parties which have declared themselves prepared to ratify it, with a view to deciding whether it is expedient to put it into force.
The ratifications shall, if so decided, be deposited forthwith at Brussels, and the convention shall come into force a month afterwards.
[Page 22]The protocol shall remain open another year in favor of the States represented at the Brussels Conference. After this interval they can only adhere to it on conforming to the provisions of article 15.
Article 17.
In the ease of one or other of the high contracting parties denouncing the convention, such denunciation shall not take effect until a year after the day on which it has been notified to the Belgian Government, and the convention shall remain in force as between the other contracting parties.
Additional Article.
Notwithstanding anything in the provisions of article 16, it is agreed that it shall not be obligatory to give effect to the provisions of article 5, establishing liability in cases where the collision is caused by the fault of a compulsory pilot, until the high contracting parties shall have arrived at an agreement on the subject of the limitation of liability of shipowners.
In witness whereof the plenipotentiaries of the several high contracting parties have signed this convention and have affixed their seals hereto.
Appendix A.
Signature Protocol, Extending Conventions to Colonies.
At the moment of proceeding to sign the conventions for the rendering uniform of certain rules in the matter of collisions and of maritime assistance and salvage, concluded on this date, the undersigned plenipotentiaries have agreed to the following:
The provisions of said conventions will be applicable to the colonies and possessions of the contracting powers, subject to the following reservations:
- I.
- The German Government declares that it reserves the right to decide with regard to the colonies. It reserves the right, with respect to each of them separately, to accede to and denounce the conventions.
- II.
- The Danish Government declares that it reserves the right to accede to and denounce said conventions with respect to Iceland and the Danish colonies and possessions separately.
- III.
- The Government of the United States of America declares that it reserves the right to accede to and denounce said conventions with respect to the insular possessions of the United States of America.
- IV.
- The Government of His Britannic Majesty declares that it reserves the right to accede to and denounce said conventions with respect to each of the British colonies, protectorates, and territories separately, as well as with respect to the island of Cyprus.
- V.
- The Italian Government reserves the right to accede subsequently to the conventions with respect to the Italian dependencies and colonies.
- VI.
- The Government of the Netherlands reserves the right to accede subsequently to the conventions with respect to the Dutch colonies and possessions.
- VII.
- The Portuguese Government declares that it reserves the right to accede subsequently to the conventions with respect to the Portuguese colonies.
These accessions may be notified either by means of a general declaration comprising all the colonies and possessions or by special declarations. With regard to the accessions and denunciations, the procedure prescribed in the two conventions of this date will be followed if necessary. It is understood, however, that the said accessions may also be embodied in the record of the ratifications.
In witness whereof the undersigned plenipotentiaries have drawn up the present protocol, which shall have the same force and value as if its provisions were inserted in the text of the conventions to which they relate.
Appendix B.
International Conference on Maritime Law.
[Sessions of September, 1910.]
observations presented by the delegation of the united states of america.
I.—General remarks.
Under the Constitution of the United States of America no treaty can become effective until approved by the Senate.
Any convention to which the American delegation may give its adherence must, therefore, before becoming effective, be approved by that body.
II.—The convention relating to the law of collision.
The delegation of the United States is prepared to adhere to this convention, subject to certain reservations to be inserted in the protocol, which have already been stated at the first session of September 12, 1910.
Nevertheless, before signing the convention-the delegation desires to have certain obscurities in certain articles corrected.
Articles 1 and 4. If the provisions of these articles are to be interpreted as “creating a right of action for loss of life, the delegation of the United States will be compelled to make certain reservations.
At present there is no statute in the United States which gives a right of action for loss of life on the high seas, but a bill on this subject is now pending in the Congress of the United States and has received substantial support.
The subject, it seems to us, is too important to depend upon an inferential reference contained in a convention on collisions, and it would be better to deal with it in a comprehensive statute stating the persons entitled to sue, as well as the amount of the recovery.
For these reasons the delegation, on signing this convention, will make a reservation that articles 1 and 4 shall not create in the United States a right of action for damage caused by death unless and until this convention shall be supplemented by an act of the Congress of the United States.
Although article 4 may be interpreted as merely fixing the apportionment of damages, there is a ground for the contention that it creates a liability for proportional damages against a carrying ship m favor of a cargo owner, notwithstanding the provisions of the national law.
As an act of Congress known as the Harter Act indicates, the policy of the United States is that a shipowner who has used due diligence to make his vessel seaworthy is relieved from all liability to cargo by reason of faults in navigation, and as the effect of this interpretation of article 4 might be to nullify the operation of such act, the delegates have been instructed to make a reservation that said article 4 shall not affect the Harter Act.
Article 6. The delegation is compelled to make a reservation that this article shall not affect legal presumptions created by the laws of the United States.
Article 10. The language of this article appears to us obscure.
The article states that “the provisions of said article do not affect the nature or extent of shipowner’s liability as regulated in each country.” Yet article 4 of the convention in particular does affect both the nature and the extent of shipowner’s liability.
It affects the mutual rights of joint tort feasors.
It denies solidarity of liability in certain cases, and it may be thought to create a right of action for death.
If the provisions of article 10 are intended to preserve unaffected the national laws prescribing systems, of limitation of shipowner’s liability until a convention on that subject is adopted, in that case the delegation of the United States think that the article should be amended to this effect.
Article 12. It is the opinion of the delegation that in order to avoid all obscurity and erroneous interpretation, the first paragraph of this article should be amended so as to provide that the vessels in suit shall belong to different high contracting parties.
In addition to the reservations above stated, the delegates of the United States have been instructed to declare that the provisions of the present convention with respect to damages and remedies shall be applicable in the United States only in the courts of admiralty and maritime jurisdiction.
[Page 24]III.—Convention relating to salvage.
The delegation of the United States is prepared to adhere to the convention for the unification of certain rules in the matter of maritime assistance and salvage.
IV.—Convention concerning limitation of shipowner’s liability.
As the delegation of the United States stated at the last session of the conference, it is impossible for it to regard, with favor the provisions giving the shipowner the option of abandoning his vessel or paying a fixed sum. This proposition does not appear to be in any sense a compromise between the two existing systems, but is altogether in favor of the shipowner, and in our opinion the American system already goes far enough in that direction. The delegation has been instructed to urge strongly that the option of paying a fixed sum be omitted from the convention.
On the other hand, the provisions of this convention are widely at variance with the American system of limiting liability.
The convention applies only to a limited number of cases, while the American system embraces claims founded upon contract as well as upon tort.
The limitation of liability statutes of the United States have been in force many years and have given general satisfaction. The treaty-making power is not likely to adopt a system of limitation of liability which affects only citizens belonging to different States, while the rights of American citizens among themselves are dependent upon national laws. It is manifest that two different systems should not be in force in the United States, and the delegates would be reluctant to recommend the adoption of a convention on limitation of liability unless they felt that there was a reasonable probability of its being followed by acts of Congress establishing a uniform system. Such a result they regard as improbable, unless the proposed convention should be brought more nearly into harmony with the present American law.
V.—Convention on hypothecations and maritime liens.
This plan of a convention omits several liens long established in the United States and generally regarded as of great importance. Among these the delegation of the United States mentions the following liens:
1. A lien in favor of passengers or cargo against the carrying vessel for damage to baggage or merchandise.
In the opinion of the delegates, it is highly desirable to maintain this lien. In fact, neither the Harter Act nor the negligence clauses in bills of lading afford a defense in cases of “loss by damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property,” or in cases where unseaworthiness is established.
2. A lien for violations of contract of affreightment.
3. A lien for towage, wharfage, stevedores’ services, etc.
The lien for towage is especially important for the United States, for in that country towing for great distances is a frequent occurrence; for example, from ports in the Gulf of Mexico to Europe, and between ports of the Atlantic and Pacific coasts.
4. A lien for injuries sustained by passengers and crew.
5. A lien for repairs and supplies without the limitation fixed by paragraph 4 of article 3 of the plan.
The delegation feels itself especially bound by the recent declaration of the policy of the United States in an act of Congress approved June 23, 1910, which gives a lien to all persons making repairs or furnishing supplies or other necessaries to a vessel, whether domestic or foreign, on the order of the owner of the vessel without the necessity of alleging or proving that credit has been given to the vessel.
As this legislation is the result of long and thorough discussion in the Congress during several years, it must be understood that a new provision which departs in any serious respect from the provisions of the law of June 23, 1910, is not likely to be approved by the American Government.
6. A lien for torts other than those arising out of collision.
Appendix C.
Report of Mr. Franck, Secretary of the International Maritime Conference at Brussels.
It is not without a feeling of deep satisfaction that the subcommittee intrusted with making a final examination of the convention relating to collisions and of the convention relating to maritime assistance and salvage has the honor to present entirely favorable conclusions to the conference. There could not, at any rate, have been any doubt about this result after the sentiments expressed at a general meeting and in view of the character of the observations made, which were essentially inspired by a desire to improve, if possible, the wording prepared during the third session. While the careful examination made by the subcommittee suggested to it the suitability of making certain corrections in line with these observations, which had been prepared with great care, it also showed at the same time that no important change affecting the substance itself was necessary.
The fact that almost all the powers had accepted the text as framed was also calculated to imbue the subcommittee with a legitimate and unanimous desire to make changes in the wording only with the greatest caution.
Under these circumstances the report must confine itself to the modest role assigned to it by the last labors of the subcommittee, it being unnecessary to resume the comments already set forth in the previous reports, and to which reference only can be made. Therefore in the following observations the only articles in question will be those which have been modified or in regard to which the subcommittee has desired that some additional observations be embodied in the report.
international convention for the purpose of rendering uniform certain rules in the matter of collisions.
Title.—With regard to the title, the question was raised whether, by reason of the nautical accidents classed with collisions by article 13, it was not suitable to modify the title of the convention. The subcommittee deemed it sufficient that the title should indicate the essential object, and it therefore proposes to maintain the denomination, International Convention for the Purpose of Rendering Uniform Certain Rules in the Matter of Collisions.
Article 1.—Article 1 was worded as follows:
In case of collision occurring between seagoing vessels or between seagoing vessels and boats engaged in inland navigation, the reparation of the damages caused the vessels and the things or persons on board is made subject to the following provisions, without regard to the waters where the collision has occurred.
Observations.—One delegation asked whether it was not necessary to state that the provisions of the conventions extend to the damages arising from loss of rent, of freight, and of passage money, as well as to demurrage and similar sources of injury. This solution is evidently in conformity with the idea of all the delegations and with the preparatory labors: Material injuries, idleness or demurrage, industrial disturbance, loss of interest, extraordinary expenses, and everything which may be considered as a real consequence of the collision should be comprised within the liability. The text by no means restricts the latter to the immediate consequences. The convention already expressed this idea, but in order to leave no doubt its terms have been slightly modified. The words “the reparation of damages caused the vessels and the things or persons on board “have been replaced by the words “the indemnities due by reason of the damages caused the vessels,” etc., in order to establish the right to a complete reparation in the sense mentioned above.
2. It is also asked whether it would not be suitable to stipulate that the provisions of the convention would be applicable only on the high sea and in rivers at high tide. This proposition did not meet the approval of the subcommittee. In fact, it is in contradiction with the very principle adopted before. There have really been given numerous examples of navigable waters which do not undergo the influence of the tide and which are nevertheless among the routes regularly frequented by seagoing vessels. The text of the article has therefore [Page 26] been maintained with regard to this point. Under these circumstances the final text of article 1 would become—
In case of collision occurring between seagoing vessels or between seagoing vessels and boats engaged in inland navigation, the indemnities due by reason of the damages caused the vessels and the things or persons on board shall be regulated in accordance with the following provisions, without regard to the waters where the collision has occurred.
Article 3.—This article was worded as follows:
If the collision is caused through the fault of one of the vessels, the reparation of the damage shall be incumbent on the one which has committed the fault.
Owing to a material error, the word “damage” appears here in the singular, while it is used in the plural throughout the convention. This error has been corrected and the final text would read:
If the collision is caused through the fault of one of the vessels, the reparation of the damages shall devolve on the one which has committed the fault.
Article 4.—The text adopted is worded as follows:
If there is a common fault the liability of each of the vessels shall be proportionate to the gravity of the faults respectively committed; however, if, according to the circumstances, the proportion can not be ascertained or if the faults appear to be equivalent, the liability shall be shared in equal parts.
The damages caused either to the vessels, or to their cargoes, or to the personal effects or other property of the crew, of the passengers, or of other persons on board, shall be borne by the vessels at fault, in the said proportion, without joint responsibility with regard to third parties.
The vessels at fault shall be held jointly liable with regard to third parties for injuries caused by death or wounds; provided, however, that a vessel that has paid more than the share which it is to bear finally, in accordance with the first paragraph of this article, shall have the right of recourse.
It shall be the part of the national legislations to determine, as regards this recourse, the scope and effects of the provisions of contracts or laws which limit the responsibility of the owners of vessels toward the persons on board.
Observations.—(1) Gravity of faults. One of the Governments represented, while approving the comments in the report made at the third session of the conference at Brussels, wondered whether it would not be suitable to indicate that the comparison of the common faults should be based above all on a comparison of the gravity of their consequences.
The subcommission deemed it preferable to abide by the text. The latter, with regard to the reparation of the damage in proportion to the gravity of the faults, leaves full and absolute freedom of judgment to the judges in each case, as well as the right to take into consideration all the factors. He (they?) must decide according to equity; the circumstances of facts are dominating and it seems impossible to lay down precise rules or to decide beforehand that a predominating importance ought to be attached to one factor or one class of considerations rather than to another. There is no doubt, however, in the general opinion, that the phrase “the gravity of the faults respectively committed” authorizes the court to examine the extent to which the fault or negligence of the vessels has contributed to the collision. The principle that there should exist between the fault and the collision a relation of casualty is sanctioned by article 1 and by the other provisions of the convention, especially articles 3 and 4, which, in employing the expression “caused,” plainly confirms this rule of common law.
(2) This provision sanctions the right to an action for damages on account of the injuries caused by deaths or wounds. The delegation of the United States made a reservation in this regard to the effect that its Government will have to secure legislative measures in order to enforce the part of the article which relates to the case of death. The subcommittee took note of this reservation and called attention to the fact that the high contracting parties whose legislation might now be insufficient in order to enforce any of the provisions of the convention promised to adopt or to propose to their respective legislatures the necessary measures in this regard.
(3) At the request of one of its members the subcommittee confirmed by an express vote that the right is reserved for the municipal laws of each nation to determine what persons have a right of action on account of wounds or deaths of human beings.
Article 5.—This article is worded as follows:
The liability established by the foregoing articles continues to exist in case the collision be caused by the fault of the pilot, even when the latter is obligatory.
Observations.—With regard to this article the British presented the following observation:
The purpose of article 5 is to remove the exemption from responsibility granted by certain legislations, especially the English, in case there is an obligatory pilot on board. A general question is involved here. Therefore, the British Government thinks that article 5 ought to be transferred to the draft of the convention concerning the limitation of liability of shipowners.
In justifying this observation, the British delegation declared that, while reasons of expediency and method induced it to propose these modifications, and while they were essential as far as the signature of the convention was concerned, they did not involve on the part of the British Government any opposition to the principle established by the text of article 5. Under, these circumstances the subcommittee proposes to recognize the observation by adding to the convention an additional article worded as follows:
In derogation of article 16 above, it is understood that the provision of article 5, fixing the liability in case a collision is caused by the fault of an obligatory pilot, shall not spontaneously go into force until the high contracting parties have agreed on the limitations of the liability of shipowners.
This text clearly indicates that no derogation is made from existing laws which, in a large number of countries, hold the ship liable for the fault of even an obligatory pilot.
It is settled right now that the powers unanimously agree that an exception shall no longer be made in a case of compulsory pilotage, the only question left unsettled being the enforcement of this provision. Under these circumstances the subcommittee has unanimously recognized that the provisions, adopted provisionally as a measure of expediency, in nowise changed the character of the convention itself.
Article 7.—In article 7, relating to time limits, it has simply been proposed to substitute the word “suspend” for the word “extend.” However, after explanations were made, it was realized that it was best to keep the present wording in order better to show that there was no intention of granting a further period of two years in the case treated of in the paragraph of the last article, but merely as much time as might be necessary in order to act when the defending vessel was within the territorial waters of the nation in which the plaintiff had his domicile or headquarters. The scope and purpose of this paragraph were explained in the previous deliberations and reports, to which reference can only be made.
Article 10.—This article was worded as follows:
Subject to subsequent conventions, the present provisions in nowise affect the nature or extent of the liability of shipowners as regulated in each country nor the obligations arising from transportation contracts or any other contracts.
At the request of the delegation from the United States the subcommittee unanimously declared: (1) That the text of article 10 in nowise affected the provisions of municipal legislation in regard to the exemption clauses in bills of lading such as the Harter Act. (2) That the words “the nature and extent of the liability “relate to the questions which are to constitute the object of the convention on the limitation of the liability. As it appeared that certain doubts might arise in this regard in the law of the United States, the subcommittee agreed to word article 10 as follows:
Subject to subsequent conventions, the present provisions shall in nowise affect the rules on the limitation of liability or shipowners as established in each country nor the obligations arising from the transportation contract or from any other contracts.
The Japanese delegation observed that the Japanese code, in article 592, provides as follows:
Even an express stipulation can not exempt the shipowner from his liability for the injuries caused through his own fault, through the bad faith or a grave fault of the seamen or any other employee, or through the fact that the vessel was not in a seaworthy state at the time of departure.
This provision is extended by article 639 to the transportation of passengers.
The Japanese delegation desired to have it understood that the text of the conventions did not in anywise affect the provisions of the court of commerce of the Empire.
Note was taken of this observation, which is quite in conformity with the spirit of the convention.
Article 12.—In regard to the final paragraph of this article the question was raised whether the municipal law was to be understood as meaning only the [Page 28] written law. The commission was unanimous in declaring that the expression “municipal law “should be understood here as meaning the written or customary law of the nation.
Article 14.—This article was worded as follows:
The delegates of the high contracting parties shall meet at Brussels three years after the present convention goes into force for the purpose of considering what improvements might be made therein, and especially in order to extend its sphere of application if possible.
In regard to this article, one Government remarked that it considered it unnecessary to stipulate that a new conference should be held at all events three years after the convention goes into force. It therefore proposed that this article be either omitted or else amended so as to provide that at the expiration of three years the Belgian Government should communicate with the other Governments for the sake of determining whether a new conference would be likely to accomplish any useful purpose.
The subcommittee unanimously proposed, under these circumstances, a rewording as follows:
Each of the high contracting parties shall have the privilege of calling for a new conference at the end of three years from the date on which this convention goes into force for the purpose of considering what improvements might be made therein, and especially in order to extend its sphere of application if possible.
Any power which makes use of this privilege shall be obliged to give notice of its intention to the other powers, through the Belgian Government, which shall proceed to call the conference within six months.
This provision has the advantage of providing for the mode of procedure in case of possible revision of the convention without laying down the imperative obligation of holding a new conference on a fixed date. The right of initiative is insured in an equal manner to all the nations. It is not to be feared that the signatory powers, all animated by the same desire to establish a uniform maritime law, will insist on the holding of a conference if the replies gathered by the Belgian Government show from the start that a demand for revision does not seem to find sufficient support. This is a question of judgment and expediency which ought to be left to the wisdom of the contracting parties.
After ascertaining that this part of the report of Mr. Franck gave rise to no remarks, the president declared it adopted.