Idea Transcript
AUGUST 1926
Ifiternational Maritime Committee BULLETIN Nr 74 (INCLUDING BULLETINS Nos 66 TO 73)
GENOA CONFERENCE SEPTEMBER 1925 President : Prof. FRANCESCO BERLINGIERI
COMPULSORY INSURANCE OF PASSENGERS.
IMMUNITY OF STATEOWNED' SHIPS. INTERNATIONAL CODE OF AFFREIGHTMENT MARITIME MORTGAGES AND LIENS.
ANTWERP PRINTED BY J.-E. BUSCHMANN, REMPART DE LA PORTE BU RHIN
1926
International Maritime Committee BULLETIN Nr 74 (INCLUDING BULLETINS Nrs 66 TO 73)
GF,NOA CONFERENCE SEPTEMBER 1925 President : Prof. FRANCESCO BERLINGIERI
I.
COMPULSORY INSURANCE OF PASSENGERS.
IMNIUNITY OF STATEOWNED SHIPS. INTERNATIONAL CODE OF AFFREIGHTMENT. MARITIME MORTGAGES AND LIENS.
ANTWERP PRINTED BY J.-E. BUSCHMANN, REMPART DE LA PORTE BU RHIN
1926
INTERNATIONAL MARITIME COMMITTEE -
BULLETIN N° 74 (INCLUDING BULLETINS Nrs 66 A 73)
GENOA_ CONFERENCE SUMMARY PAGIS
Prefatory Note Resolutions of Genoa Conference Statutes of International Maritime Committee . Permanent Board of the Committee Members of the International Maritime Committe National Associations List of attendance at the Conference Agenda-Paper of the Conference Preliminary Reports. Report of the Proceedings at the Conference . Administrative Sitting (See the Index, page 587.) .
v,
xiv xxvi xxxi XL
275 582
PREFACE The following countries had sent delegates : Belgium, Denmark, France, Germany, Great-Britain, Greece, Italy, Japan, Netherla.nds, Norway, Portugal, Serbo-Croatia, Spain, Sweden, United-States America.
The International Labour Bureau of the League of Nations had also sent a delegate to follow the work of the Conference in regard to the question of Compulsory Insurance of passengers. I.
Compulsory Insuranee of Passengers.
The basis of the discussion was the draft-treaty prepared by the Sub-Committee which met at Paris, in June 1924, under the presidency of Sir Norman Hill. Under reservation of the final decision as to the principles the various articles of the draft-treaty were examined. Some of the .articles were amended; on others, clearly defined opposition of views came to expression, namely as to the
renunciation of remedies against third parties. After having concluded this examination as a first reading, the Conference has requested the Sub-Committee, to which further members could be added, to continue its labours. This Sub-Committee will be convened at Antwerp in the course of 1926.
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It is of interest to note that the idea of compulsory insurance of all passengers, although meeting as yet with
a certain amount of opposition,. seems to have gained ground during the Conference. This circumstance justifies the Sub-Committee in carrying on it labours. II.
Immunity of State-owned Ships.
The Gothenburgh draft-treaty has been altered on two points and Article 3 is now worded as follows
a a) Ships of war, State Yachts, surveying vessels, hospital ships and other vessels owl-) ed or operated by the State and employed on other than commercial work;
b) State-owned cargo carried only for the purpose » of Governmental non-commercial work on vessels owned or operated by the State; » Such liabilities shall be enforceable only by action before the competent tribunals of the State owning or » operating the vessels in respect of which the claim arises.
On the other hand, there was added a new article to be numbered Article 5, as follows In time of war, any ship owned or ope» rated by a belligerent State or any cargo owned by » such State or carried in such vessels as aforesaid, shall » be immune from any arrest, seizure or detention by » ART. 5.
any foreign Court. » Claims against such vessels or cargo shall, during the
» period of belligerency, be enforceable by action before » the competent tribunal of the State owning or operating such vessels or cargo ». This question now appears to be mature and the Permanent Bureau is communicating with the Belgian Government in view of convening a Diplomatic Conference thereon. The new text therefore reads as follows
Immunity of State-owned Ships. 0 ARTICLE 1. - Vessels owned or operated by States,
cargoes and passengers carried on such vessels; and » the States owning or operating such vessels shall be » subjected in respect of claims relating to the operation of such vessels or to such cargoes to the same rules of » liability and to the same obligations as those applicable to private vessels, persons or cargoes. » ART. 2. Except in the case of the ships and » cargoes mentioned in paragraph 3 such liabilities shall » be enforceable by the tribunals having jurisdiction over » and by the procedure applicable to, a privately owned » ship or cargo or the owner thereof. » ART. 3.
In the case of
» a) Ships of war, State yachts, Surveying vessels, Hospital ships and other vessels owned or operated » by the State and employed in other than commercial » work; b) State-owned cargo carried only for the purpose
VI
of 'Governmental non-commercial work on vessels owned or operated by the State; such liabilities shall be enforceable only by action before the competent tribunals of the State owning or operating the vessels in respect of which the claim » arises. No such vessel or cargo shall be liable to arrest or seizure by foreign Courts.
ART. 4. The provisions of this Convention will be applied in every Contracting State in all cases where the claimant is a citizen of one of the Contracting States,
provided always that nothing in this Convention shall
prevent any of the Contracting States from settling » by its own laws the rights allowed to its own citizens before its own Courts. In time of war any ship owned or operated by a belligerent State or any cargo owned by such State o or carried in such vessels as aforesaid shall be immune ART. 5.
from any arrest, seizure or detention by any foreign Court. Claims against such vessels or cargo shall during
the period of belligerency be enforceable by action before the competent tribunal of the State owning or operating such vessels or cargo. » III.
International Code of Affreightment.
The importance of the two questions mentioned above did not permit the conference to devote sufficient time to the International Code of Affreightment. However, a very interesting general discussion took place. It is well
known that, in view of the extent, the complexity and the technical nature of affreightment questions, opinions were always divided as to whether a general codification
shmild be attempted or whether we should limit our labours to some special questions only. The latter attitude
justified the questionnaire prepared by the Paris SubCommittee (October 1924). The last conference marked a certain change in these views. This change is chiefly owing to the fact that several States are preparing new laws on Affreightment or have already altered their legislation, for instance, the Netherlands. There lies a danger and an obvious menace of con-
flicts of law, since, in the absence of an International Convention, every legislator will carry on his work without heeding foreign laws. The sentiment of the Conference, was to the effect that the Committee on Affreightment ought to pursue its labours. IV.
Maritime Mortgages and Liens
As this question is now being dealt with by the Brussels Diplomatic Conference, the Conference felt that it would be discourteous towards the Governments if we were to
examine certain objections which have been raised in Great-Britain against the text of the Convention prepared in Brussels by the Sub-Committee of the Diplomatic Conference (October 1923). The Conference, therefore, merely recommended that the Diplomatic Conference itself would examine such objections at its next session; but
from all sides it was urged that an agreement be reached and that this third Code-may also obtain the adhesions
which are still outstanding. This matter will also be brought on the agenda paper of the new session of the Diplomatic Conference at Brussels.
International Codes on Limitation of Shipowners' liability and Iiills-ot-Lading.
The following signatures are so far assured for these Conventions
On Limitation of Shipou;ners' Liability : Argentine, Belgium, Brazil, Denmark, Fran ce, Great-Britain, Italy, Japan, Poland and Danzig, Rumania, Spain. On Bills-of-Lading : Belgium, France, Germany, GreatBritain, Italy, Japan, Poland and Danzig, Rumania, Spain, United-States. It would be well that the National Associations in the
Countries who have not yet signed, should urge their Government to notify their adhesion.
The International Maritime Committee will always remember their visit to Genoa. Our members were afforded a magnificent reception by the authorities as well as by Italian Association of Maritime Law. We must again express our thanks to the Sindaco and
to the municipal councillors of Genoa, to the Rector Magnificus of the University, who was our host during
our deliberations, and also to the chairman and the members of the Italian Association of Maritime Law. We are very pleased indeed to record that during our existence of thirty years, two of our most brilliant con-
ferences were held on Italy's soil. In our recollection, Venice in 1907 and Genoa in 1925 shine with equal lustre. THE PERMANENT BUREAU-.
31st December 1925.
International Maritime CommitteeSTATUTES ART. 1. -- The International Maritime Committee propose : to further by conferences, publications and divers works, the unification of maritime law; to encourage the creation of national associations for the unification of maritime law; to maintain, between these associations, regular communication and united action. The International Maritime Committee is comART. 2.
posed of titulary members and of delegates of the national Associations.
The founding members are, by right, titulary members. Their number is limited to ten for each country. The number of delegates of national associations is limited to six for each country.
To complete the number of titulary members, as when a vacancy occurs, an election may be held at the first meeting following the constitution of the committee or the vacancy. The election shall be decided by secret ballot of the titulary members, the candidate obtaining the absolute majority being successful. ART. 3.
Each conference shall choose its own officers and
take the necessary steps for the execution of its resolutions and the preparation of subsequent reunions. The following article however shall provide for such cases where no such decisions have been taken. ART. 4. In the interval between the conferences, the administration of the Committee shall be entrusted to a permanent
board.
The permanent board shall be appointed for three years and shall consist of
lo A president, vice-president and secretary or secretaries, who shall provide for the maintenance of regular communi-
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cation between the national Associations, the management of the Committee and the execution of its decisions. 2° Of members, in the proportion of one for each country represented in the Committee, chosen from among either the titulary members or the delegates of the national Associations. The board thus formed shall, should it be necessary, draw up the programme of the International Conferences. The members of the permanent board are appointed by the International Maritime Committee. The elections are by secret
ballot, the candidate obtaining the absolute majority being successful. ART. 5. The titulary members of the International Maritime Committee pay an annual subscription of one guinea. The national Associations shall be invited to conART. 6. tribute to the expenses of the Committee. ART. 7. The length of time during which a titulary mem-
ber may sit is indefinite and can be terminated either by resignation or by deliberation of the Committee. The present statutes may always be modified, at ART. 8. the proposal of the board and after such proposal having been placed upon the agenda-paper of the meeting. The International Maritime Committee shall ART. 9. meet, unless unforeseen circumstances prevent, at least once a year. It shall determine directly or by delegation the time and place of such conference. An extraordinary meeting may be
called by the permanent board or at the request of fifteen members, in which case the meeting shall be held in the country where the headquarters of the permanent board are established. No vote shall be considered valid if not more than one half of
the countries affiliated to the Committee are present and if the vote does not give an absolute majority of the countries present, the members voting by nations. ART. 10. - Every three years the Committee shall designate the headquarters of the permanent board.
-Permanent Board of the International Maritime Committee' FOR 192 -1Q2
President : Mr LOUIS FRANCK, Advocate, former Minister t. f Colonies, President of the Belgian Association c.f Maritime Law, Antwerp. Vice-Présidents : Sir LESLIE SCOTT, K. C., M. P., Barrister-atlaw, former Solicitor General, London. Mr ALBERT LE J EUNE Insurance broker, Member of the Conseil Supérieur de la Marine, Vice-président of the Belgian Association of Maritime Law, Antwerp. Hon. General Secretaries : MM. FREDERIC SOHR, Dr Jur., In-
surance agent, General Secretary of the Belgian Association. of Maritime Law, Professor at the Brussels University, Antwerp. GEORGE P. LANGTON, Barrister-at-law, London. LEOPOLD DOR, Barrister-at-Law, Editor of the Revue
de Droit Maritime Comparé. Paris. Members : MM. A. TYPALDO BASSIA (t ) , Advocate, Member of
the House of Representatives, President of the Hellenic Association of Maritime Law, Athens (Greece). FRANCESCO BERLINGIERI, Advocate, Professor at the
University of Genoa, President of the Italian Association of Maritirn.e Law, Genoa (Italy). CHARLES
C.
(U. S. A.). (t) Deceased.
B URLINGHAM, Advocate, Ne'w York,
LÉON HENNEBICQ, Barrister-at-Law, Batonnier of the Ordre .des Avocats, Brussels (Belgium). Dr j ORGEN H. KOCH, President of the Danish. Association of Maritime Law, Copenhagen (Denmark) .
B. C. J. LODER, President of the Permanent Court of International Justice of the Maritime Law Assoelation of the Netherlands, The Hague (Netherlands). ELIEL LÖFGREN, President of the Swedish Associa-
tion of Maritime Law, Stockholm (Sweden) . N. MATSUNAMI, Professor of Maritime Law at the
Tokyo Imperial University and Professor at the Higher Naval Staff College, President of the Japanese Association of Maritime Law, Tokyo (Japan). ANTON POULSSON, Underwriter, President of th3 Norwegian Association of Maritime Law, Chri,tiania (Norway). Dr ALFRED SIEVEKING, Advocate, Secretary of the German Association of Maritime Law, Hamburgh (Germany). RENÉ VERNEAUX, Member of the Board of the Co-
mité Central des Armateurs de France, General Secretary of the French Association of Maritime Law, Paris (France).
List of Members of the International Maritime Committee. MM. (t) Sir REGINALD B. D. ACLAND, K. C., London. EDVIN ALTEN, General Secretary at the Ministry of Justice, President of the Commission for Revision of the Maritime Law in Norway. Oslo. (t) LORD ALI, ERSTONE, Lord Chief Justice of England, President of the British Maritime Committee, London.
mer.
HARALD ANDERSON, Underwriter, Manager of Stockholms
Sjöförsäkrings-Aktieholag, Stockholm. EARL APPONYI, late Councillor of His Imp. & Roy. Majesty Apost., Deputy, Budapest. (t) Baron ARICHI, Vice-Admiral, Tokyo. (t) CHARLES MC. ARTHUR, M. P., Average Adjuster, forPresident of the Liverpool Chamber of Commerce. (t) Prof. ASCOLI, of the University of Venice. A. ASHii, Vice-President Nippon Yusen Kaisha. C. D. ASSER, Jr., Advocate, Gen. Secretary of the Maritime
Law Association of the Netherlands, Amsterdam. CO T. M. C. ASSER, Minister of State, formerly Professor at the University of Amsterdam, Member of the Council
of State of the Netherlands, The Hague. (t) F. C. AUTRAN, Advocate, Director of the « Revw_t Internationale de Droit Maritime », former President of the French Association of Maritime Law, Marseille. ALGOT BAGGY., Judge at the Court of Appeal, Chairman
of the Swedish Commission for revision of Maritime Law, Stockholm. (t) BATAAN, General Manager of the Hamburg-Amerika Linie, Hamburgh. CO Deceased.
(t) Lord GORELL BARNES OF HAMPTON, Judge at the High
Court, London.
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(t) A. TYPALDO BASSIA, Advocate, former President of the
House of Representatives, President of the Hellenic Association of Maritime Law, Athens. LAURISTON BATTEN, K. C., London. CHARLES BAUSS, Advocate, Antwerp.
NORMAN B. BEECHER, Admiralty Counsel of the Shipping
Board, Washington, D. C. (t) A. BEERNAERT, Minister of State, formerly Minister of
Finances, former President of the House of Represeutative3, Member of the Royal Academy of Belgium and of the Institut de France, President of the International Maritime Committee, President of the Belgian Association of Maritime Law, Brussels. Dr BEHN, Advocate. Hamburgh. Prof. Dr. ENRICO BENSA, Advocate, Genoa. FRANCESCO BERLDIGIERI, Advocate, Professor at the Uni-
versity of Genoa. Dr W. R. BISSCHOP, LL. D., Barrister-at-Law, Hon. Secre-
tary of the International Law Association, London. (f) J. BOISSEVAIN, Manager of the Navigation Company « Nederland », Amsterdam. PAUL BOSELLI, formerly Minister, M. P., Rome. Hon. EDWARD G. BRADFORD, Judge for the District of Delaware, Wilmington (U. S. A.). (t) President Dr OTTO BRANDIS, President of the High Hanseatic Court, President of the German Association of Maritime Law, Hamburgh. JOHAN BREDAL, Advocate at the Supreme Court, Oslo. 01 DAN. BROSTR614, Shipowner, Chairman of Sveriges Redareförening, Gothemburg. (t) Deceased.
(f) -ADDISON BROWN, Judge at the District Court of the U. S., New York. FREDERICK M. BROWN, Councillor-at-law, New York.
Dr P. BRÜDERS, Secretary to the International Union of Marine Underwriters, Berlin. CO G. C. BRUZZO, Shipowner, General Manager of the « Veloce » Navigat. Cy. Genoa. CHARLES C. BURLINGHAM, Advocate, New York.
EDOARDO CANALI, Chairman of the Committee of Under-
writers, Genoa. (f) Baron CAPELLE, Minister plenipotentiary & Env. Ex-
traordinary. General Director at the Ministry of Foreign Affairs, Brussels. (f) T. G. CARVER, K. C., London. (f) MAURICE CAVERI, Advocate, Genoa.
(f) G. CERRUTI, President of the Italian «Ventas » and Underwriter, Genoa. CO DP CHRISTOPHERSEN, Minister for Foreign Affairs, Christiania. (f) EDOUARD CLUNET, Advocate at the Court of Appeal, Paris. (t) VICTOR CONGAS, formerly Minister of Marine, Senator, Madrid. Dr ANTONIO AMARO CONDE, Advocate, Lisbon. (f) CALLISTO COSULICH, Shipowner, Trieste.
JUAN CARLOS CRUZ, Professor at the University, BuenosAires. JACINTH° CANDIDO DA SILVA, Formerly Minister, President
of the Naval League, Vice-president of the Portuguese Association of Maritime Law, Lisbon. FRANCISCO ANTONIO DA VEIGA BEIRAO, Councillor of State,
formerly 'Minister, President of the Portuguese Association of Maritime Law, Lisbon. (t) Deceased.
- XVII DE BERENCREUTZ, former Consul general of Sweden at Antwerp. THOMAS DE BIRO, Councillor at the Ministry of Commerce, Budapest. Dr D'ESIRÉ DE DARDAY DE BARANYA-BAAN, Councillor ai
the Ministry, Fiume. COLOMAN DE FEST, Councillor at the Ministry, former
Vice-President of the Royal Maritime Government, Vice-president of the Hungarian Association of Maritime Law, Fiume. HENRY DE GRANDMAISON, Advocate, Vice-President of the
French _Association of Maritime Law, Le Havre. (t) F. DE MARTENS, Professor at the University, Petrograd. Dr FRANVIS DE NAGY, Professor at the University, late
Secretary of State, Deputy, Budapest. LÉON DENISSE, President of the Court of Justice, Plarmel (France). A. DE OLIVEIRA SOARES, Chancellor of the Legation of Portugal, Brussels.
Dr JOAO DE PAIVA, formerly Deputy, President of the Commercial Court, Lisbon. C. A. DE REUTERSKIOLD, Professor at the University of Upsal (Sweden). (t) COMM. ED. DE RICHETTI, Underwriter, Trieste.
PAUL DE ROUSIERS, General Secretary of the Central Committee of French Shipowners, Paris. (t) ARTHUR DESJARDINS, Advocate General of State at the Supreme Court, Member of the Institut de France, Paris. Baron DE TAUBE, formerly Councillor at the Ministry of Foreign. Affairs, Petrograd. (t) L. DE VALROGER, former President of the Bar at the Court of Cassation, Paris. (t) Deceased. 2
- XVIII (t) FREDERICK DODGE, Advocate, Boston.
LEOPOLD DOR, Advocate, Director of the Revue de Droit Maritime Comparé, Paris. Dr. DUCKER, Syndic of the Chamber of Commerce, Hamburg. ARTHUR DUNCKER, Underwriter, President of the Mari-
time Underwriters Committee, Hamburgh. (t) C. DUPUIS, Average Adjuster, Paris.
Dr ECKER, Director of the Hamburg-Amerika Linie, Hamburgh. C. EDZARD, Advocate, Bremen. (t) ENGELHARDT EGER, Shipowner, Christiania. K. W. ELMSLIE, Average Adjuster, London.
E. EMBIRICOS, formerly Minister of the Marine, Athens. LOUIS FRANCK, former Minister of Colonies, President of
the International Maritime Committee and of the Belgian Association of Maritime Law, Vice-President of the International Law Association, advocate, Antwerp. Miss MARGARETA FRENZL, General Secretary International
Transport Insurance Union, Berlin. HENRI FROMAGEOT, Advocate at the Court of Appeal, Paris. (t) DOMENICO GAMBETTA, former President of the Com-
mittee of Maritime Underwriters, Genoa. AMEDEA GIANNINI, Minister Plenipotentiary ad honorem,
Councillor of State, Rome. Sir ERNEST GLOVER, Chairman of the Chamber of Shipping of the United Kingdom, London. (t) Sir JOHN GLOVER, Shipowner, formerly President of
the Chamber of Shipping of the Untied Kingdom, former President of Lloyds Register Committee, London. (t) Deceased.
XIX -
(f) Hon. W. GOODRICH, Judge at the Court of Appeal, New York.
(I') PAUL GOVARE, Advocate at the Court of Appeal of Paris, Honorary President of the French Association of Maritinae Law, Paris. (f) WILLIAM Gow, Underwriter, Liverpool. CO Dr GiiTSCHOW, formerly Secretary of the Chamber of Commerce, Hamburgh.
(t) Dr G. F. HAGERUP, Minister of Norway at Copenhagen. CHARLES S. HAIGHT, Advocate, Chairman of the Bill-of-
Lading Committee of the International Chamber of Commerce, New York. CO HARALD HANSEN, Shipowner, former Senator, Copeahagen.
Dr HEINEKEN, President of the Board of Managers of the North German Lloyd, Bremen. L. HELDRING, Director of the « Koninklijke Nederlandsche Stoombootmaatschappij », Amsterdam. LÉON HENNEBICQ, Advocate at the Court of Appeal, Hon.
General Secretary of the International Maritime Com-
mittee, Professor at the Institut des Hautes Etudes, Brussels. G. HENRIKSEN, General Manager of the Norwegian-Ame-
rican Line, Christiania. (t) Sir JOHN GRAY HILL, formerly President of the Law Society., Liverpool. Sir MAURICE HILL, Judge at the Probate, Divorce and Admiralty Division of the High Court of Justice, London. Sir NORMAN Hui, Bart., former Hon. Secretary Liverpool Steamship Owners' Association, Liverpool. (t) A. HINDENBURG, Advocate at the Supreme Court, formerly President of the Danish Association of Maritime Law, Copenhagen. (f) Deceased.
);R:
CHARLES 1VL HOUGH, U. S. Circuit Judge, President of the American Association of Maritime Law, New York.
(t) Colonel Sir HENRY HoztER, Secretary of Lloyd's, London. HOWARD B. HURD, Average Adjuster, London. CO JACOB IHLEN, Advocate at the Supreme Court, former
President of the Committee on the Norwegian Mari. time Code, Oslo. Y. ITo, President Nippon Yusen Kaisha. JANTZEN, Managing Director of Nordisk Skibsrederforening, Oslo.
(t) Dr JOSEPHUS Jnït, Professeur at the University of Amsterdam. AXEL JOHNSON, Shipowner. Stockholm. (t) Sir ALFRED JONES, K. C., M. G., Shipowner, Liverpool.
(t) Sir WIELIAnt R. KENNEDY, Lord Justice of Appeal, London. W. KLAVVENESS, Managing Director Norges Rederi A. B., Oslo. M KLITGAARD, Copenhagen.
Dr JORGEN H. KocH, President of the Maritime and Com-
mercial Court, Copenhagen. (t) Baron REMPEI KONDO, President of the Navigation Company Nippon Yusen Kaisha, Tokyo. (t) MAS,AYOSHI KOTO. Vice-President of the Navigation Company Nippon Yusen Kaisha, Tokyo.
(t) F. LAEISZ, Shipowner, President of the Chamber of Commerce, Hamburgh. EJNAR RUDOLF LANGE, Underwriter, Manager of the Swe-
dish Shipowners Insurance Association, Gothenburg. GEORGE P. LANGTON, Barrister-at-law, Hon. General Secretary of the International Maritime Committee, London. (f) Deceased.
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H. WESTFAL LARSEN, President Norges Redeni A. B., Oslo. (t) ViNcENzo LEBAN0, Advocate, Napoli. ,
ANDRÉ LEBON, Hon. President of the Messageries Mari.
times, former Chairman of the Central Committee of Shipowners of France, Paris. ALBERT LE JEUNE, Insurance broker, Vice-President of the Belgian Association of Maritime Law, Antwerp. (t) CHARLES LE JEUNE, Average Adjuster, President of the International Maritime Committee and of the Bel-
gian Association of Maritime Law, Vice-President of the International Law Association, Antwerp. Dr SIGISMUND LEWIES, Advocate, Petrograd.
OTTO LIEBE, Advocate at the Supreme Court, Copenhagen.
B. C. J. LODER, President of Honour of the Permanent Court of International Justice, Chairman of the Netherlands' Association of Maritime Law., The FIague. ELI& LÖFGREN, Advocate. Minister of Foreign :Affairs, President of the Swedish Association. of Maritime Law, Stockholm. (t) CH. LYON-CAEN, Professor at the « Faculté de Droit de Paris », Member of the Institut de France, President of the Association française du Droit Maritime, Paris. GEORGES MARAIS, Advocate at the Court of Appeal, Paris.
CO OCTAVE MARAIS, former Batonnier de l'Ordre des
Avocats at the Court of Appeal of Rouen. A. MARGHtEnt, Advocate, Professor at the University, former President of the Italian Association of Maritime Law, Napoli. (t) Dr MARTIN, President of the High Hanseatic Court, Hamburgh. Dr., ERIK MARTIN, Advocate, Stockholm. Dr MARTINOLICH, Advocate, Trieste. (t) Deceased.
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XXII
N. mATsimatn, Professor of Maritime Law at the Tokyo Imperial University and Professor at the Higher Naval Staff College, Tokyo. Lord MERRIVALE, Président of the Probate, Divorce &
Admiralty Division of the High Court of Justice, London. J. STANLEY MITCALFE, former Manager of the North of
England Protecting & Indemnity Association, Newcastle-on-Tyne. DE MICHELTS, High Commissioner of Emigration, Rome. (t) VIGGO MIDDELBOE, Average Adjuster, Copenhagen.
HARRY R. MILLER, Managing Director of the United Kingdom Mutual Steamship Owners' Assurance Association, London. (t) Thos. R. MILLER, Manager of U. K. Mutual Steamship Owners' Assurance Association, London. MILLERAND, former President of the French Republic, Paris. MINGOTTI, President of Committee of Underwriters, Genoa.
(t) DUKE MIRELLI, Councillor at the Court of Cassation, Rome. ALFRED MUSNIER, Director of the Compagnie des Messageries Maritimes, Paris.
(f) O. B. Muus, former Minister of Commerce & Navigation, Copenhagen.
N. OHTANI, London Manager of the Nippon Yusen Kaisha, Tokyo. General-Major J. OVTGHINNIKOFF, of the Russian Imperial
Navy, Petrograd. (t) Sir DOUGLAS OWEN, formerly President of the Asso-
ciation of Average Adjusters of Great Britain, late Secretary of the Allianee Marine Insurance Co, London. (f) Deceased.
- XXIII A. PEREIRA DE MATTOS, formerly Deputy, founder of the
Naval League, secretary of the Portuguese Committee of Maritime Law, Lisbon. GEORGES PHILIPPAR, Managing-Director of the Cie des Messageries Maritimes, Paris. Lord PHILLIMORE, D. C. L., London. (f) EDM. PICARD, Advocate at the Court of Cassation, for-
merly Senator, Professor at the « Institut des HautesEtudes », Brussels. G. F. P. C. PILCHER, Barrister-at-Law, London. CO UMBERTO PIPIA, Professor at the University, Genoa. (f) Dr OSCAR PLATOU, Advocate, Professor of Maritime
Law at the University, President of the Norwegian Association of Maritime Law, Oslo. ANTON POULSSON, Underwriter, President of the Norwe-
gian Association of Maritime Law, Oslo. EINAR POULSSON. Underwriter, Oslo. HONORIO PUEYRREDON, Professor at the University, Bue. nos-Aires.
HARRINGTON PUTNAM, Judge at the Supreme Court of State of New York (U. S. A.). W. N. RAEBURN, K. C., London.
CO E. N. RAHUSEN, Advocate, formerly Senator, President of the Netherlands' Association of Maritime Law, Amsterdam. A. RINMAN, Managing Director Sveriges Allmana *forsährings Aktiebolag, Gothenburg. GEORGES RIPERT, Professor at the Faculté de Droit, Paris.
(f) SARTORI, Shipowner, President of the Deutscher Nautischer Verein. 'Dr AUG. SCHENKER, Shipowner, Vienna. C. L. SCHÖNMEYR, Advocate, Stockholm. (f) Deceased.
NX/V
Sir LESLIE SCOTT, K. C., M. P.. Barrister-at-Law, former Solicitor General, Vice-president of the International Marithne Committee, 1,011d011. LEONE AD. SENIGALLIA, Advocate, Director of the Italian
Review of Maritime Law, Napoli. Baron Dr C. SHIBA, Tinperial Japanese Marine Association, Tokyo. Dr ALFRED SIEVEKING, Advocate, General Secretary of
the German Association of Maritime Law, Hamburgh. (t) Dr FRIEDRICH SIEVEKING, President of the High Han-
seatic Court, President of the German Association of Maritime Law, Hamburgh. CHRISTIAN SIN DBALLE, Dr Jur., Professor at the University
of Copenhagen, Copenhagen.
FRÉDÉRIC SOHR, Dr jur., Underwriter, Hon. General Secretary of the International Maritime Committee and of the Belgian Association of Maritime Law, Professor at the University of Brussels, Antwerp. GERmAIN SPÉE, A.dvocate, former Chief-Registrar of the Tribunal of Commerce, Antwerp. CO Lord S'FERNDALE, Master of the Rolls, High Court of Justice, London. GEORGES STREIT, Professor at the University of Athens,
former President of the Hellenic Association of Maritime Law, Athens. C. STUBBS, LL. D., Barrister-at-Law, London. Dr GUSTAV STRUCKMANN, President at the Reichsgericht, Leipzig. ROBERT TEMPERLEY, Solicitor, Newcastle-on-Tyne.
(t) THALLER; Professor at the Faculté de droit, Paris. -CO OTTO THORESEN, Shipowner, Oslo.
(f) LAURENT TOUTAIN, Syndic of the Compagnie des Courtiers de Navires, d'Assurances & Agents de Change, Le Havre. (t) Deceased.
KAKICIH tjcitio s, late Director of the Mercantile Marilw
of the Ministry of Commonieations President of the Admiralty Court of Mercantile Marine, Tokyo. (t) Dr R. ULRICH, Late General Secretary of the « Inter-
nationaler Transportversicherungs Verband » and of the « Germanischer Lloy-d », Berlin. Dr G. VAN SLOOTEN, Azn., Councillor at the Court of Appeal, The Hague. REA VERNEALA, Member of the Board of the Comité
Central des Armateurs de France, General Secretary of the French Association of Maritime Law, Paris. Dr ANTONIO VIO; Advocate, Fiume. (t) JULES VRANCKEN, Advocate, Antwerp.
(t) NATHAN WEBB, Judge at the District Court of U. S., New York. (t) JOHN WESTIAKE, Professor of International Law at
Cambridge University-, President of the Institute of International /aw. (t) M. WIEGANDT, Director of the Norddeutscher Lloyd, Bremen. (t) AD. WOERMANN, Shipowner. President of the Hamburg Chamber of Commerce, Hamburgh. (t) Dr STEPHEN WORMS, Councillor at the Ministry of Conunerce, Vienna. (t) ESTAMSLAO S. ZEBALLOS, AAVOCate, fOrMerly
of Foreign Affairs, Buenos-Aires.
National ASSociations. ARGENTINE REPUBLIC Argentine Association of Maritime Law. President : Senator LEOPOLDO MELO, Professor at the University, Buenos-Aires. Vice-President : Mr PEDRO CHRISTOPHERSEN, President of the
Centre national de navigation transatlantique, Buenos-Aires. Secretary : Mr MARIO BELGRANO, Buenos-Aires. Treasurer : Mr PEDRO MICHANOVICH, Shipowner, Buenos-Aires.
BELGIUM
Belgian A.ssociation of Maritime Law. President : Mr Louts FRANCK, M. P., Advocate, former Minister
of Colonies, President of the International Maritime Committee, Antwerp. Vice-President : Mr ALBERT LE JEUNE, IDSOtanCe Broker, Vice-
Président of the International Maritime Committee, Antwerp. General Secretaries : Mr FRÉIARIC SOHR, Dr jur., Underwriter,
General Secretary International Maritime Committee, Professor at the University of Brussels, Antwerp. Mr CONSTANT SMEESTERS, Advocate, Member of the
Conseil Supérieur de la Marine, Antwerp. DENMARK
Danish Association of Maritime Law.
President : Mr J. H. KOCH, President of the Maritime an.d Commercial Court, Copenhagen.
- XXVII -
Councillors : Mr J OHAN HAINSEN, General Consul, Shipowner.
formerly Minister of Commerce, Copenhagen. Mr OTTO LIEBE, Advocate at the Supreme Court, Copenhagen. Secretary : Mr PIERRE OESTERBY, Professor, Registrar, Copenhagen.
FRANCE
French Association of Maritime Law. President : Mr CHARLES LYON-CAEN, Hon. Dean of the Faculté
de Droit of the University, Member of the Institute,
Secretary of the Academy of Moral & Political Sciences, Paris. Vice-President : Mr HENRI DE GRANDMAISON, Advocate, Le Havre. General Secretary : Mr RENÉ VERNEAUX, Dr jur., Member of
the Board of the Comité Central des Armateurs de France, Paris. GERMANY
Deutscher Verein fiir Internationales Seerecht. President : Mr MAX MITTELSTEIN, President of the Senate of
the Higher Court, Hamburgh. General Secretary : Dr ALF. SIEVEKING, Advocate, Hamburgh. GREAT-BRITAIN
British Maritime Committee. Chairman The Right Hon. Lord JUSTICE MERRIVALE.
ice-chaman: Sir LESLIE SCOTT, K. C., M. P.
'XXVIII -
Hon.TifeaSuier : H. M. CLEMINSON,.. General Manager Chamber ,
of ,Shipping of the U. K.
Hon. Secretary-: GEORGE LANGTON, K. C.
Hon.. Asst-Seeretary : G. ST. C. PILCHER, barrister.
GREECE
Maritime Union -in Greece. President : Mr PETMEZAS, Prófessor at the UniverSity of Athens.
ITALY
Italian Association of Maritime Law. President : Mr FRANCESCO BERLINGIERI, Advocate, Professor at
the University of Genoa, Genoa. JAPAN
Japanese Association of Maritime Law. President : Mr N. MATSUNAMI, Professor of Maritime Law at the Tokyo Imperial University and Professor at the Higher Naval Staff College, Tokyo. Secretary : Mr MIYASAKI, Director of the Department of Communications, Tokyo. NETHERLANDS
Association of Maritime Law of the Netherlands.
President : Mr B. C. J. LODER, President of the Permanent Court of International Justice, The Hague. Secretary : Mr C. D. ASSER, Jr., Advocate, Amsterdam. Asst-Secretary : MT J. F. TH. VAN VALKENBURG, Advocate, Amsterdam.
X,.?{AEX.
NORWAY
Norwegian Association of Maritime Law. President : ANTON POULSSON, Underwriter, Christiania.
POLAND
Polish Society of Maritime Law. President : Mr EMILE WAYDEL, Advocate, Warshaw.
Secretary : Mr RYCHLINSKI,. Lieutenant of the Marine, Warshaw.
PORTUGAL
Permanent Commission for Maritime Law. President : Dr MANUEL NUNES DA SILVAIRA.
Vice-President : Vice Admiral VICENTE MARIA DE MOURA COUTINHO D'ALMEIDA EÇA.
Secretary : Captain CARLOS THEODORO DA COSTA.
KINGDOM OF THE SERBS, CROATS & SLOVENES Association, of Maritime Law of the Kin,gdom of Serbs, Croats and Slovenes. 13*-esident : Prof. Dr ANTE VERONA, Zagreb.
SWEDEN
Swedish Association for International Maritime Lau).
President : Mr ELIEL LÖFGREN, Advocate, former Minister of Justice, Stockholm. Vice-President : Mr HARALD ANDERSSON, Underwriter, Stockholm.
Secretary : Mr
JOHAN ALSEN,
Judge at the Court of Appeal.
Stockholm.
UNITED STATES
Maritime Law Association of the United States.
President : Hon. CHARLES M. HOUGH, Judge at the U. S. Circuit Court of Justice, New York. Secretary : Mr HAROLD S. DEWING, Advocate, New York.
GENOA CONFERENCE (1925)
LIST OF ATTENDANCE GERMANY MM. Dr SIEVEKING, ALFRED, Dr Jur., Secretary of the German
Association of Maritime Law, Hamburgh. Dr FIRLE, RUDOLPH, Member of the Union of German Shipowners, Hamburgh. RECK, WILHELM, Underwriter, Bremen.
RÖSING, J., Syndic of the Chamber of Commerce, Bremen. Dr SCHULZ-SMIDT, ART., Advocate, Bremen.
BELGIUM
MM. FRANCK, LOUIS, Advocate, former Minister of Colonies.
President of the International Maritime Committee, Antwerp. DENS, LÉON, President of the Union des Armateurs Belges, Antwerp. DE RUELLE, J., Director at the Ministry of Foreign Affairs (Government's delegate), Brussels. DE VOS, HENRY, Inspector to the Direction of the Marine
Administration (Government's delegate), Brussels. DE BOSSCHÈRE, A., Manager of the Union of Belgian Shipowners, Antwerp. FRANCK, ANTOINE, Advocate, Antwerp.
- XXXII HENNEBICQ, LÉON, President of the Courts of Appeal's Bar, Brussels. KORT, LUDOVIC, Director of Companies, Antwerp. LE JEUNE, ALBERT, Underwriter, Senator, Vice-President
of the International Maritime Committee, AUtwerp. SOHR, FRE.DERIC, Dr jur., Professor at the Brussels University, General-Secretary of the International Maritime Committe, Antwerp. DENMARK
M. SINDBALLE, KRISTIAN, Dr Jim, former Minister of Justice, Professor at the University, Copenhagen.
SPAIN M. LORENZO BENITO, Professor at the University, Madrid.
UNITED STATES AMERICA MM. MACK, HON. JULIAN W., Judge to the Circuit Court of Ap-
peals of the U. S. A., New York. DE FOREST-LORD, GEORGE, Barrister, New York.
Major S. KENNEDY, WHITE, United States Shipping Board, London.
FRANCE MM. DE GRANDMAISON, HENRI, Anclen Bâtonnier, Président of
the French Association of Maritime Law, Le Havre. BAISSAT, Advocate, Tunis.
BERNARDIN, Chef du Contentieux, Manager of the Claims Dep. Caisse Industrielle d'Assurances Maritimes, former Judge, Paris. DE GRANDMAISON, JEAN, Advocate, Le Havre.
XX XIII
POR, LÉOPOLD, Advocate at the Court of Appeal Paris, Director of the Revue de Droit Maritime Comparé, Pre-
sident of the French branch of the International Law Association, Paris. GOVA RE, JAMES-PAUL, Advocate at the Court of Appeal,
Paris. LIEURY, ROBERT, Secretary of the Committee of Marine Underwriters, Le Havre. MAR CHEGAY, J ACQUES, Assist.-Secretary of the Central
Committee of French Shipowners, Paris. RIPERT, GEORGES, Professor at the Paris University and the Ecole des Sciences Politiques, Paris. SAUVAGE, FR 4 N CIS. Advocate at teh Court of Appeal, Paris.
VERNEAUX, RENL Legal Counsel to the Cie des Message-
ries Maritimes and the Central Committee of Shipowners, General Secretary- of the French Association of Maritime Law, Paris. GREAT-BRITAIN MM. SCOTT, Sir LESLIE, K. C. M. P., former Solicitor General
Vice-President of the International Maritime Committee, London. Dr BisscHop, W. R., Advocate, Secretary of the International Law Association, London. H. M. CLEMINSON, Genral Manager Chamber of Shipping of the United Kingdom, London. CAUTY, A. B., White Star Line, London. J OHN DENHOLM, President of the Chamber of Shipping of the United Kingdom, London. NEWTON DUN, Ship0Wiler, London.
JOS. FERGUSON FAWCETT, President of the Institute of chartered Shipbrokers, London.
XXXIV -
H. B. GORDON WARREN, Chairman Liverpool Steamship Owners' Association, Liverpool. Sir NORMAN HILL, Bart., Ex-Vier-President Chamber of
Shipping of the United Kingdom, Hants. Miss E. J. KELL of the Chamber of Shipping's Staff. H. B. G. LARKIN, Australian Commonwealth Government Line. General S. S. LONG, C. B., Federaticn-c f British Industries, London. PILCHER, G. St. C., Advocate Asst. Hon. Seer. British Maritime Committee, LVDCJI.
WALTER RAINE, M. P., Coal Exporters Federation of Great
Britain, Sunderland. THOS. Ross, General Manager of Shipping Federation of Canada. F. RUSSELL ROBERTS, Hon. Secretary Liverpool Steamship OWners' Association, Liverpool. J. SANDEMAN ALLEN, M. P., Association of British Cham-
bers of Commerce, London. THONE, W. CALTHROP, HOD. Seer. Dock & Harbour Aut-
horities Association, Liverpool. GREECE Mr A. JOHANNIDIS, Consul G6néral of Greece at Genoa. NETHER LANDS
MM. Dr LODER, B. C. J., form.er President of the International Permanent Court of Justice, The Hague. ASSER, C. D., Advocate, President of the Franco-German Tribunal, General Secretary of the Netherlands' Maritime Law Association, Amsterdam.
XXXV
A. BONGER, President of the Union of Marine Underwriters, Amsterdam. DE MONCHIE, E. P., Amsterdamsche Scheepsverband Bank.
FESCHOTTE, L. H., Hollandsche Scheepsverband Bank.
MEES, W. B., Rotterdamsche Scheepsverband Bank. ITALIE His Excellency Prof. GILTSEPPE DE MICHELIS, Embassador of H. M., General Commissioner of Emigration. His Excellency Prof. AMEDEO GIANNINI, Minister Plénipotentiary ad Honorem. Conseillor of State, General Secretary of the Conseil du Contentieux at the Ministry of Foreign Affairs. His Excellertcy VINCENZO CIVILETTI, First President of the Court
of Appeal, Genoa. His Excellency NICOLA CARINCI, King's Attornev at the Court of Appeal, Genoa. His Excellency AGOSTINO MARGARA, First President of the Court
of Appeal, Trieste. MM. FRANCESCO BERLINGIERI, Advocate, Professor at the Uni-
versity-, President of the Italian Association of Maritime Law, Genoa. EUGENIO BAVA, President of the Committee of Underwriters, Genoa. G. B. BECCHI, Advocate, President of the Federation of Trampsteamer-Owners, Genoa. ENRICO BENSA, Advocate, Professor at the University of
Genoa, Member of the International Maritime Committee. GIORGIO BERLINGIERI, Advocate, Professor at the Univer-
sity of Genoa.
xxxvi
Dr MATTE() BOJANOVICII, Manager of the « Loyd Triestino ». GIOVANNI BRUNA, Chamber of Commerce, Genoa.
Prof. DOMENICO BRUNELLI, representing the Federation
of Italian Shipowners at the Inter-federal Shipowners' Committee.
ANTONIO BRUNETTI, Advocate, Professor at the Institut Supérieur de Commerce, Trieste. Dr GIUSEPPE BUDFNICH, Delegate of the Federation of Adriaiic Shipowners. EDOARDO CANAL', President of the Genoa Underwriters' Committee, Genoa. ARTURO CARCASSI, Advocate, Genoa.
GUIDO CHIALVO, Advocate. Professor of Commercial Law.
PLACIDO CIAILETTI, Advocate, Secretary of the Italian Association of Maritime Law. EDOARDO COPELLO, Secretary of the Committee of Marine
Underwriters. ANTONIO COSULICH, Advocate, Trieste.
OSCAR CosuucH, Representing the Federatiin of the Italian Shipowners of the Adriatic at the Inter-federal Shipowners' Union. ETTORE DE NICOLA, Advocate, Delegate of the Chamber of Commerce, Napoli. ALFREDO DE SIMONE, Advocate, Professor at the University-,
Napoli. EDOARDO GIRTANNAR, President of the Comité des Assu-
reurs transport. Guruo GOLDSCHMIDT, Delegate of the Navigation Company
« Libera Triestina ». FILIPPO GRAMATICA, Advocate, Delegate of the Italian Naval Ligue.
- XXX VII ---
UGO GRASSO, Advocate, Genoa.
DARIO GUIDI, Advocate, Professor of Maritime Law at the University of Rome. G. LONGHENA, Advocate, Professor of Maritime Law at the
University of Catane. EVAN MACKENZIE, Vice-President of the Federation of Underwriters. RICCARDO MAINARDI, Underwriter, Milano.
DANTE MAJORANA, Member of Parliament, Advocate, Pro-
fessor at the University of Catane. GINO MARGHIERI, Advocate, Napoli.
Dr LORENZO MOSSA, Advocate, Professor of Commercial
Law at the University of Cagliari, delegate of that University. G. B. MURAGLIk, Advocate. Genoa. DAVID NEIL, Advocate, Genoa.
Dr Lumt ORSINI, Advocate. delegate of the Italian Institute of International Law, Rome. CLEMENTE PERSICO, Advocate at the Court of Appeal, Genoa. ITALO PERTUSIO, Advocate, Genoa.
F. PONZA, Advocate, Secretary of the Italian Association of Maritime Law, Napoli. ROBERTO Pozzi, Advocate, Napoli.
SALVATORE Russo, Advocate, Delegate of the « Assicura-
zioni generali di Venezia », Rome. ROBERTO SCHEGGI, Advocate, Professor at the University
of Rome. ODDONE SCIOLLA, Advocate, Genoa.
LEONE AD. SENIGALLIA, Member of the International Ma-
ritime Committee, Napoli. PIETRO SOLVENT, Advocate, Venice.
XXXVIII
ANGELO SRAFFA, Professor and President of the Law Col-
lege at the University of Milano. ELIA TARABOTTO, Secretary- of the Federation of Insurance Companies.
Dr ALDO VERNETTI, Judge at the Court of Appeal, Genoa. CESARE VIVANTE, Professor of Commercial Law at the University, Rome. Dr. ANTONIO VIO, Advocate, Member of the International
Maritime Committee, Fiume. Commissariat Général de l'Emigration : Professors Torquato Giannini and Tommasso Perassi; Ministry of Marine : Captain Umberto. Cugia di Sant'Orsola; Ministry of Communications : Commander Francesco Marena; Ministry of Justice : M. Fr. Berlingieri. JAPAN M. KURUSU N. NAGOAKA, Secretary at the Ministry of Commu-
nications, Tokio. NORWAY
MM. EDVIN ALTEN, Judge at the Supreme Court, Oslo. EINAR POULSSON, Manager director « Assuranceforeningen Skuld », Oslo. W. KLAVVENESS, C. B. E., Manager Norwegian Shipowners' Association, Oslo.
H. WESTFAL-LARSEN, Shipowner, President of the Norwegian Association of Shipowners, Bergen. PORTUGAL MM. Dr BARBOSA MAGALHAES, former Minister, Professor at the University, Lisbon. Dr JAYME SEGUTER, General Consul at Genoa.
- XXXIX SWEDEN MM. ALGOT BAGGE, Councillor at the Supreme Court, President
of the Tribunal Mixte Arbitral Anglo-Allemand, Stockholm. EINAR LANCE, Manager of Insurance Companies, Gothenburg. SERBO-CROATIA M. STEFANO BRKITS, General Consul at Genoa.
INTERNATIONAL LABOUR BUREAU MM. PHALAN, Chef of the diplomatic section. BORDOLOIS, technical adviser.
VARLEZ, technical adviser.
INTERNATIONAL MARITIME COMMITTEE
GENOA CONFERENCE (28th, 29th, 3oth SEPTE:VIBER ikNo 1st OCTOBER 1925)
The sittings will be held in the Aula magna of the University of Genoa. MONDAY, 28th SEPTEMBER
10. a. ni. 2.30 p. m.
Inaugural sitting. Appointment of the Bu-. reau. Immunity of State-owned Ships. Immunity of State-owned Ships (continued). Compulsory Insurancy of Passengers. TUESDAY,
10. a. ni. 2.30 p. m.
29th SEPTEMBER
Compulsory Insurance of Passengers (continued). WEDNESLAY, 30th SEPTEMBER
10. a. m. 2.30 p. m.
International Code of Affreightment. THURSDAY, 1St OCTOBER
Maritime Liens and Mortgages.
10. a. m. 2.30 p.
Declaration
by Sir Leslie Scott, Vice-President, in the name of the Permanent Bureau. General discussion of the declaration. Administrative Sitting.
PARIS COMMITTEE (WU', ItI 12t1 JUNE 1924)
I.
Report.
The Committee was composed. of Sir Norman, Hill, Bart., President, assisted by Mr Frédéric Sohr. Secretary;
Messrs Fr. Berlingieri, P. de Rousiers, L. Dor, Louis Franck, Lange, G. Ripert, G. van Slooten, R. Verneaur. Messrs Gustave Hendriksen. Cleminson. R. Enalar aud Chr. Sindballe were unable to attend. Messrs Cornut-Gentille. Musnier and H. Lesneur. representing French shipowning interests, attended the ,iittings in a private capacity. After an exchang.e of views on the broad question advisability of a scheme on Compuls.orv insurance, the meeting examined the First Proposals of Draft-Conveation (*)..prepared bv Sir Norman Hill. and agreed the following Report and wording of a Draft-Conventioin 1. In accordance with the Resolutions adopted .at the meeting of the International Maritime Committee hekt in Gothenburg in AugUSt 1923, we have investigated the
question of the compulsory insurance of carried by sea. (*)
passeng.e,Ts
2. We have taken note of the fact that since those Resolutions were framed. the following Resolutions have been adopted
1) The International Conference of Shipowners held in London in May 1924, resolved : « That this Conference, representative oí the Shipping industry in ), every part of the world, endorses the resolution passed » by the Comité :Maritime International at their Conference in Gothenburg. on Aug. 16, 1923, and invites » the Comité lo continue their study of the ubj ec t , and » that a Comrnittee of this, Conference be appointed lo » co-operate with tlie (oniit(1 Maritime International in ,the examination of the subject ».
2) The International immigration and Emigration Conference convened by the Italian Government and held in Rome in May .1924 resolved that : a The Conference considering that it is necessary that every » emigrant should be guaranteed against the risk of death, » for the benefit of hi dependents. and against the risk
» of disablement. front the time he commences bis o journey until he arrives at the destination stated on )) his ticket, draws the attention of Governments to the desirability of instituting, if they have not already done » so, a system guaranteeing emigrants against the risks of ))
death or disablement when travelling., and ensuring the rapid payment of the indemnities.
3. We have taken note of the fact that the International Labour Office in its Report on « Emigration and Immigration Legislation and Treaties » Geneva 1922 after reviewing the definition of a emigration » and of
o emigrant » adopted in 27 countries, found that « The
definition of emigration and of an emigrant here » reviewed show considerable variation. One point alone » is common to them all, namely that emigration involves
» going from one country to another. This condition, » however, is not sufficient to distinguish the emigrant » from the international traveller, to whom the emigration regulations do not apply. Each definition, there» fore includes another element, sometimes several distinet elements. These may be classified as follows
The journey must be made with a view to a lengthy period of residence abroad. 1.
The journey must be undertaken with a view to earning a living abroad. The journey must be undertaken under certain » conditions as to the transport, class in which the person » travels or cost of the journey. The journey must be made to certain countries » to the exclusion of others for example oversea coun4.
tries.
The journey must be the subject of a special » contract transport or labour contract ». 5.
4. It is manifest from the Resolutions (*) adopted by the International Emigration Commission in Geneva in
August 1921, and by the International Immigration and Emigration Conference in Rome in May 1924, that the nations are concerned in securing real and comprehensive protection for emigrants, not only against the negli(*) See page 17.
gence of the Shipowners and their servants, but also against all the risks and chances incident to travel. It is further manifest that the cost at Nvhich such pr°. a tection can be provided will be of vital importance scheme would be worthless which added such a burden as to make travel impossible. We are satisfied that such a scheme could be worked by the Shipowners earrying the emigrants, at far less cost,
and with far greater satisfaction to the insured than by any organisation set up by the country from which, or to which, the emigrants were travelling. For example, if provided bv the shipowner, the insurance could be combined with the passenger ticket, and its cost could be adjusted as part of the fare, thereby obviating the need for any separate organisation charged with the- duty of issuing policies and collecting premiums from either the emigrants or shipowners, or both. The claims under such a passenger ticket could be made and enforced in whatever port the ship might be; thereby obviating the need for the claimants to prove their claims
in the country from which they had sailed. Claims based on the passenger ticket would have to be satisfied by the shipoNs-ner subject to the control of the Law Courts. thereby obviating the necessity for setting up any separate organisation charged with the duty- of investigating and settling claims. Another factor of the greatest importance in keeping the cost of the scheme within .practical limits, would be the distribution of the risk as widely as possible, and the fixing of definite maximum liabilities which were fair
and reasonable in themselves and uniform in all countries.
As to the first of these points. taken as a whole, oversea travel is extraordinarily safe; and therefore the aggregate
(-J deaths and injuries are but a trifling percentage, on the aggregate of the numbers: carried. Further from the investigations made by the International Labour Office it would appear to be impossible to find any dividing line between emigrants and other travellers which would be acceptable to the nations generally. We are therefore of opinion that the scheme should be applied to all pas9engers and not merely to emigrants. As to the second point. Is.,e are of opinion that if the
tthipowner is to assume responsibility for injuries re,tulting fronnpure chance f71 r misfortune, the scheme must
also include his responsibility for injuries resulting from negligence. Expérience has shown that any system based on responsibility for negligence does not give the protection required indeed, experience has shown that it is entirely inadequate, hut :under that system occasions
do arise in which the individual shipowner is overwhelmed with liabilities. if the scheme is not to inerease the cost of travelling beyond the capacity of the emigrants,.
we are of opinion that the right to claim in the event of negligence being established will have to be given up in exchange for the right to claim up to the amounts fixed, -whether or not there has been negligence.
7. Holding these views we are of opinion that International adoption of a uniform system of compulsory insurance of passengers carried by sea, on the lines of
6
the draft Convention submitted with this Report. advisable.
8. We haye not attempted to fill in amounts in the Schedules to the draft Convention. In our opinion the sums to be insured must be adjusted in consultation with the Governments principally concerned in emigration.
As we have already pointed out it is obvious that the amounts to be inserted in Schedule A, which is to be the compulsory insurance, must be in reasonable relation to the means of the emigrants. We have made provisions in the draft Convention so that any passenger wishing to obtain an insurance for a larger amount ma-y, be able to do so through the shipowner at the same time as he obtains his ticket. On paving the premium for the same. The limits for such additional and optionalin.surance,
will be inserted in Schedule B, and they should in our opinion be a multiple of the sums inserted in Schedule A we suggest ten times such sums. This practical organisation of an insurance scheme on sound economic lines will in our opinion secure for passengers far more effective protection than is given. to them under the existing laws.
9. The Commission makes a note of the following reservations
1) Mr Cornut-Gentille, in the name of the French Navigation Companies, expresses the opinion that in imposing on the shipowner if not the burden, at least the responsibility of the insurance, a too precise rule is laid down.
-7It seems preferable to saddle the shipowner only with the duty of embarking only passengers who have been
insured, this formula leaving the shipowners free to organize the insurance under the form they will consider fit.
This reserve is principally aimed at giving the French shipowners, who have not yet been notified of the question, an opportunity of studying its various aspects, in view of the great influence a general insurance scheme-covering all passeny,rers would exercise in the working of the Companies. 2) Whilst acceptittg the draft prepared by the COMmittee, Mr Berlingieri wishes to make a reservation on principle as to its scope of application. He is of opinion
that the international Convention on the compulsory insurance ought to be restricted to the emigrants, as a means of protecting this special class of passengers, and that the other passengers be left to be governed by the
Comtnon Law, with freedom to insure themselves at suitable conditions against the risks of carriage by sea. In restricting die scheme to the emigrants solely, an insurance scheme similar to the workmen's CompensatiOtt-
Acts could be contemplated. Indeed there is no reason to view in a different light, from the social standpoint, the
risks incident to labour and the risks incident to the travel undertaken by the emigrant with the sOle view to get work. Thus many difficulties would be eliminated and, amongst others, that of determining the beneficiaries of the insurance. The latter would be entitled to claim jure proprio and not jure hereditatis, i.e. to the extent they suffer personal and direct damage.
Against this system objection may be made from the difficulty of discriminating between the emigrants and the other passengers, because the laws on emigration in the various countries are necessarily based.on a definition of the emigrant. All difficulties would be eliminated in nulling that the national laws will determine what is an emigrant for the purposes of the Convention.
i'. Draft Convention on Life and Persona/ Injury Claims by Passengers.
I. In this Conve,ntiOn the following words are employed with the meanings set out below « Shipowner 11 includes the owner or charterer of any ship who enters into a contract to carry one or more passengers on board such ship; « Passenger » includes any person who is so carried _under any such contract for reward to the shipowner. This definition is subject to the provisions of article 3 of the Convention; e) « Ship » includes any vessel on board oí which a passenger is carried for reward to the shipowner, whether such vessel is regularly employed for the carriage of pasHengers or. being regularly employed for the carriage of goods only, is upon a particular occasion employed for the carriage of a passenger or passengers. This definition. is subject to the provisions of Article 2 of the Convention; d) « Voyage » covers the whole period while the paskienger is on board, and during the process of embarkation and disembarkation, whether directly from or to the 'shore or by gangway or ladder. or by means of tenders, tugs. ferries or other craft. 2. Every shipowner shall insure all passengers against
all risks of death or personal injury incurred upon the voyage in accordance with Schedule A (*) annexed hereto.
Provided that each of the High Contracting Parties shalt be at liberty to exempt from the operation of this Convention any vessels navigating exclusively in tidal rivers and inland waterways.
Each of the High Contr4eting Parties shall be at liberty to make special provisions applicable to the carrying of -1) pilgrims and 2) coolies and other similar
workers provided that such provisions secure to such persons equitable insurance.
Such insurance shall cover all risks of accident causing the death of, or personal injury to, the passenger, and the shipowner shall indemnify the passenger, or the personal representatives of a deceased passenger, as determined by the national law of that passenger, in respect of any such accident from whatsoever cause such accident may arise, and even though caused by negligence or want of reasonable care on the part of the passenger. 1\fotwithstanding the foregoing provisions, the ship-
owner shall not in any case be liable to indemnify the passenger, or the personal representatives of a deceased passenger, whereyer the personal injury or death are directly caused by the wilful misconduct of the passenger.
The insurance aforesaid shall be an absolute bar to
all actions against the shipowner in the Courts of any country in respect of an insured accident other than for the enforcement of claims based on the insurance. ) To be completed later on
Provided that nothing. in this Convention shall relieve any person from the full responsibility for the result of his ONV11 wilful misconduct or deliberate negligence.
Such insurance shall not cover any risks of loss or damage to personal property or effects of any passenger. All claims under such insurance shall be and remain payable in full without regard to any limitation of liability which the shipowner may or would be entitled to claim
in respect of any action for damages according to the laws of the country under whose flag the ship is sailing, or the laws of any other country.
Such insurance shall not affect or prejudice tit.e 'right of the shipowner to bring an action for damages 'against a third party or against the owner of any other vessel by whose default or negligence loss or damage has been caused to the-ship. or where death or personal injury has resulted to any passenger carried therein. In such cases the shipowner shall pay in full the claim of any passenger on board his ship under the insurance, and shall acquire all rights in respect of the insured acci-
dent, but shall only be entitled to enforce such rights to the extent of the sums paid under the insurance as part of the damages he is entitled to recover in any action
for damages which he may bring in the Courts of any country against the negligent or defaulting third party, subject only to such limitation of Liability as the negligent
or defaulting third party may be entitled to claim.
Every shipowner sball issue to every passenger at the same time as his ticket under the contract of carriage a policy oí insnrance in accordance with this Convention, or .shall embody the terms of such a policy in the ticket itself.
In case of personal injury- unless the accident is known to the surgeon or other anthorities on board, or unless the passenger is prevented by force majeure from giving such notice, the passenger shall, within eight days after disembarkation; give notice of the accident to the captain or to the shipowner or his agent at the port of disembarkation or to the authorities competent in that behalf according to the national law of the port of disembarkation. All claims arising either from personal injuries or from
death shall be barred unless the action be instituted within tu,elve months after the date of tbe accident.
All claims shall be paid on a gold basii.
Insurance against death and personal injury as aforesaid shall be compulsory for both shipowner and passenger, and neither party shall be at liberty to make any contract exemptint...,: himself therefrom. Any contract ,50 made shall be absolutely null and void.
Where any passenger shall desire to insure against
death or personal injury to himself for any amount greater than as aforesaid and shall, at any time before or at the time of payment of the fare under the contract
of carriage, formally request the shipowner so to insure him, the shipowner shall be obliged to issue, in his own name or as agent for insurers approved under article 15, a policy for such larger amount as the passenger shall demand, upon payment by the passenger of a premium and subject to terms and conditions in accordance with Schedule B (*) annexed hereto. Save that in no case shall a shipow-ner be compelled to issue a policy to any passenger for an amount exceeding ten times the amount insured under Schedule A (*). Nothing in this Convention shall operate to prevent
a shipowner from re-insuring his liabilities under the insurances aforesaid with any Mutual Insurance ciation, Insurance Company or Underwriters. No ship shall be allowed to carry passengers or to put to sea at any time with pass.engers on board. unless the shipowner shall have in his posse:_,sion at such time a certificate issued by the Government of the country undec whose flag his ship is sailing certifying that such shipowner is insured wholly or in part in such manner and form, as may be required by such Government, against liabilities in respect of policies issued by him to passengers on board his ships with Mutual Insurance Associations, Insurance Companies or Underwriters approved in that behalf by such Government or, if not so insured. that sucit shipowner is in a position to pay air,- claims in respect of the policies held by passengers on board all ships belonging (*)
lo tw co Hipieled la t,
a.
-Hto him at such time. Such certificates shall be approved on a condition of reciprocity by all contracting Govern-
ments. A passenger on board any such ship shall be entitled to call
for and to
inspest such certificate
or a copy dilly certified by the Authority issuing such .certificate.
SCHEDULE A Amount Insured
Nature of injury Adults of,
and over 18 years.
Adults between 12 and 18 years.
Children
under 12 years.
Death
Permanent disablement destroying earning power to the extent of 50 per cent .
.
C) Permanent disablement deslroying earning power to the extent
of less than 50 per cent
D) Disablement temporar-, ily affecting earning power ..a week with ...a week with ... a week with a limit of .... a Ihnit of a limit of weeks. weeks. weeks:
SCHEDULE B
DOCUNIENTS
A.
SiR NORMAN HILL'S SPEECH
at the International Shipowners' Conference (London, May 1921) Lloyd's List)
Sir Norman -Hill, in introducing the subject of com, pulsory passenger insurance. said it was within the knowledge of many present that the question was discussed a preliminary wav at Gothenburg last August at a meeting of the International Maritime Committee, when the following resolutions were adopted
c That in view of steps which are being taken by individual States to provide economic protection for their nationals against the consequences of all casualties oc.curing during overseas transport, whether occasioned by negligence or by chance, it may be desirable to formulate a uniform system for International adoption. That having regard to the difficulties attached to the matter, this Con-
ference is of opinion that the question of compulsory insurance of passengers carried by sea ought to be further studied. and asks the Permanent Bureau, in consultation with a committee nominated by this Conference, to inves-
tigate the advisability of, and to frarne a scheme, for report to the next Conference.
17
The International Maritime Committee appointed him
Chairman of the Committee referred to in the second resolution, and that Committee was to meet in Paris next month. Needless to say, the present Conference was in no way bound by the resolutions adopted at Gothenburg or by the conclusions, if any, arrived at by the Committee which would meet in Paris, but, as shipowners, they must keep in very close touch with the questions under consideration. They were not questions which shipowners had raised. At a meeting of the International Emigration Commission, held at Geneva, in August 1921 a mee-
ting called at the instance of the International Labour Office the following resolution was adopted unanimously: o Every emigrant shall be guaranteed for the benefit of his dependents against risk of death or disablement from the time be commences his journey until he arrives at the destination stated on his contract ticket, and accordingly the Commission draws the attention of Governments to the desirability of instituting, if they have
not already done so, a system guaranteeing emigrants against risk of death or disablement when travelling. » The International Labour Office, in getting the Governments of the nations to appoint that Commission, were acting in accordance with the decision arrived at by the General Labour Conference at Washington, in 1919. The
nations represented in the Commission in 1921 were Italy, Switzerland, South Africa, Sweden, Germany, China, India, Spain, Japan, Canada, Brazil, France, Greece, Czechoslovakia, and Great Britain. So far the Governments of th.e nations had not taken
any joint action towards carrying the resolutions into 2
effect, but independent action had been taken by some. Spain in 1920 adopted a plan under which all emigrants were insured with a Central Emigration Council against the risks of shipwreck. The revision of that scheme was now under consideration and the Council was in favour nf a guarantee scheme which would provide, as against the payment of premiums, grants to the families of shipwrecked emigrants up to the maximum of 3000 pesetas in each case. Czechoslovakia had already embodied in an Emigration Act provisions requiring time transportation companies to insure the head of the family or his representative against accident until his arrival al his destination, and to insure his baggage against damage and loss
on a scale of premiutns approved by the Ministry of Social Welfare, with a Czechoslovak insurance company where possible. Italy had convened a conference, which was now sitting, and was being attended by the principal maritime countries, at which, among other questions to be discussed, was the insurance of emigrants 'against accidents on their journey and insurance of emigrants against the loss of or damage to their luggage. In the resolution of the Commission of August, 1921, there was no indication of by whom the guarantee was to be given. He did
not think it could be pretended that in equity the shipowner could be called upon to insure the passengers he carried against death or disablement resulting from risks and chances over which the shipowner had no control directly. But Czechoslovakia had already placed that
burden on the transportation companies, and it was understood that other nations liad somewhat similar legislation under consideration.
- 19 -
The question was, therefore, one of practical and pres-
sing importance, and in its adjustment and settlement they, as shipowners, were directly concerned. (Hear, hear.) He did not think they could leave the question to be dealt with and settled by the International Labour Office at Geneva without running the risk of having a new form of liability imposed upon them without any regard to their existing liabilities under Maritime Law, and they would most certainly be hampered in the conduct of their international trades if they left the question to be dealt with by each nation separately. What the International Emigration Commission regarded as essential, it would be remembered, was a real and comprehensive protection for emigrants, not only against the negli,
gence of the shipowners and their servants, but also against all the risks and chances incident to travel. Could the shipowners help in securing that such protection was
given? And if so, was it in their interest to gi-ve such help? It was manifest that any such scheme could be worked by the shipowners carrying the emigrants, at far less cost, and with far greater satisfaction to the insured
than by any organisation set up by the country from which, or to which, the emigrants were travelling. For example, the insurance, if provided by the shipowner, could be combined with the passenger ticket, and its cost could be collected as part of the fare, thereby obviating the need for any separate organisation charged with the duty of issuing policies and collecting premiums from
either the emigrants or the shipowners, or both. The claims under. a passenger ticket could be made and enforced in whatever port the ship might b-e, thereby ob-
- 20 -
viating the need for the claimants to prove their claims in the country from which they liad sailed. Claims based on the passenger ticket would llave to be satisfied by the shipowner, thereby obviating the necessity for setting up any separate organisation charged with the duty of investigating and settling claims. If the scheme was to be made workable, the cost was of vital importance. To the emigrant a scheme would be worthless which added such a burden as to make travel impossible.
Beyond question, the factors that would be of the greatest importance would be, the distribution of the risk as widely as possible, and the fixing of definite maximum liabilities which were fair and reasonable in themselves. As to the first of those points, taken as a whole, over-sea travel was extraordinarily safe, and therefore, the aggregate of deaths and injuries was but a trifling percentage on the aggregate of the numbers carried. Further, it was doubtful if it were possible to draw any generally acceptable dividing line between emigrants and other travellers. It was, therefore, probable that it would be to the interests of all concerned to apply the scheme to all passengers antl not merely to emigrants. As to the second point, to keep the cost within possible limits, the scheme must cover liabilities of all kinds, -whether they arose from pure chance or misfortune, or to the negligence of those on board the ship in which the passengers were travelling, or in any other ship. Experience liad shown that any system based on responsibility for negligence did not give the protection required indeed, experience liad shown that it was entirely inadequate, but under that system. occasions
did arise in which the individual shipowner was over-
whelmed with liabilities. If the scheme was not to increase the cost beyond the capacity of the emigrants, it seemed
lo him that independent rights of claim, in the event of negligence being established, would have to be given up in exchange for the right to claim up to the amounts fixed, whether or not there had been negligence. He moved
« That this Conference, representative of the shipping industry in every part of the world, endorses the resolution passed by the Comité Maritime International at their » Conference in Gothenburg, on Aug. 16. 1923, and invites the Comité to continue their study of the subject, and
that a committee of this Conference be appointed to co-operate with the Comité Maritime International in
» examination of the subject. »
B.
First Proposals for the Draft of a Convention on Life and Personal Injury Claims by Passengers, PREPARED BY SIR
NORMAN HILL
with the alterations suggested by the Committee, printed in red.
I. In this Convention the following words are employed with the meanings set out below « Shipowner » includes the owner or charterer of any ship who enters into a contract to carry one or more passengers on board such ship. « Passenger » includes any person who is so carried
under any such contract for reward to the shipowner. This definition is subject to the provisions of article 3 of the Convention. Ship includes any vessel on board of which a pas-
senger is carried for reward to the shipowner, whether such vessel is regularly emplo-yed for the carriage of passengers or, being regularly employed for the carriage of goods only, is upon a particular occasion employed for the carriage of a passenger or passengers. This definition is subject to the provisions of Article 2 of the Convention. « V oy age covers the whole period while the passen-
ger is wirier the rare of the shipowner In addition to the perincLuidiile_tb.e.y_aze_acivall.y._on board, passangess_shalldie.
Eleemeci49-13etritder4lit--ea1c of '411-es+ripervitt, and during the process of embarkation an_d. disembarkation, whether
directly from or to the shore or by gangway or ladder, or by. means of tenders, tugs, ferries or other craft.
Every shipowner shall insure all passengers against all risks of death or personal injury incurred upon the voyage in accordance with Schedule A annexed hereto. Provided that
each of th'e High Contracting Parties shall be' at' liberty to exeMpt from the operation of this Cdnvention any vessels navigating exclusively in tidal rivers and inland waterways vv;11,,, its owl/
Each of the High Contracting Parties shall be at liberty to make special provisions applicable to the carrying of : 1) pilgrims and, 2) coolies and other similar workers provided that such provisions secure to such persons equitable insurance.
3. 4. Such insurance shail cover all risks of accidents causing the death of, or personal injury to, the passenger, and the shipowner shall indemnify the passenger, or the personal
representatives of a deceased passenger, as determined by the national law of that passenger, in respect of any such accident from whatsoever cause such accident may arise, and even though caused by negligence or want of reasonable care on the part of the passenger. Notwithstanding -Af44,c-le---3-44.er-e47 the foregoing provisions, the shipowner shall not in any case be liable to
indeinnify the passeriger, or the personal representatives of a. deceased passe,nger, wherever the personal injury or death gre directly caused by the wilful miscoriduct'of the passenger'. Upun p yi lei t uf any LI nil untie' The insurance aforesaid i
II
II
21 --
zeprzseutati.ves-of-a-clece-ase,d-pa&se.,nger,--shall-be-a1464141441y
.LielaorrPd from_insiitutirig any-actianfor-darnages, shall be
an abolute bar to all actions against the shipowner in the -Courts of any country in respect of thesame- an insured accident,
s
4P.,--a4451-41G14
r. other than for the enforcement of claims based on the insurance. Provided that nothing in this Convention shall relieve any person from the full responsibility for the result of his own wilful misconduct or deliberate negligence.
Such insurance shall not cover any risks of loss or damage to personal property or effects of any passenger.
All claims under such insurance shall be and remain payable in full without regard to any limitation of liability which the shipowner may or would be entitled to claim in respect of any action for damages according to the laws of the country under whose flag the ship is sailing, or the laws of any other country. Such insurance shall not affect or prejudice the right of
the shipowner to bring an action for damages against a third party or against the owner of any other vessel by whose default or negligence loss or damage has been caused to the
ship, or where death or personal injury has resulted to any passenger carried therein. In such cases the shipowner shall pay in full the claim of any passenger on board his ship
under the insurance, .144t-shaecicon all cuch and shall acquire all rights in respect of the insured accident but shall only be entitled to enforce such rights to the extent of the sums zightittily- paid under the insurance as part of
the damages he is entitled to recover in any action for
25
damages which he may bring in the Courts of anY country against the negligent or defaulting third party, subject only to such limitation of liability as the negligent or defaulting third party may be entitled to claim.
Every shipowner shall issue to every passenger at the same time as his ticket under the contract of carriage a policy of insurance in accordance with this Convention, or shall embody the terms of such a policy in the ticket itself. In case of personal injury unless the accident is known
to the surgeon or other authorities On board or unless the passenger is prevented by force majeure from giving such notice the passenger shall within eight days after disembarkation give notice of the accident to the captain or to the ship-
owner or his agent at the port of disembarkation or to the authorities competent n that behalf according to the national law of the port of disembarkation. All claims arising either from personal injuries or from death shall be barred unless the action be instituted within twelve months after the date of the accident.
vaYageILtite-acciAleat-accur,s-du ung-the4uctzess-of_cli.s=barkatitan
flayg .affer clisPmbarkatinn-
26 --
reprc3cntativcs of thc-deceased-passenger-withi44--s-i-x-ms-P414-6 Ctaims-4n-respe-1 of itactiting after such term if? a-t in-death-after- the-termination--of--t-he-voyage -441a-liL.-14k--tuacleat etty-tifne-vii tit ifi-twel-ve--month-s -af ter t43e-accicle445-}ar-ev44e4 tha-t-N,y-lienever praetleahle a--c--tairn-has-been-marie--as-afer.e-said Ek+r-ing-44-e-voyage-of within-t-hree--das after dise-na.barle.alis,a,
11. All clahns shall he paid on a gold basis. 11. A passenger-claiming in reape4-of-M1 t led-to-de-ma n (1-41-}at-paa,
be-Fnade-i-n the-clt r ncy-of-the- Go-it it-try where the voyage 1-EfFi-ng-wh-feh the ac-cielent oGcurred shal1-ter-minate--1-f-pay. e urreney of-a y--Gthe r eatt-ntry-the-rate ment--k.-macte
of exchange shall be calculated at the-rate --prevailing on the date of the-accident. lo p.er-senel-Fepfe1--a:-Payments-made-tmder-st scntativcs-of--a-deeeased pas-sengel-in-res-peet-ef-any-aeeklent w-Friels-has--resultecl- in the-death of -the-paf,senger-s.h-all--be ntafte-in-the-carrerrey--of-the-eoun-try-to-whieh such per3onal representatives-belong.
1-37 12. Insurance against death and personal injury as aforesaid shall be compulsory for both shipowner and passenger, and neither party shall be at liberty to make any contract exempting himself therefrom. Any contract so rnade' shall be absolutely null and void.
14. 13. Where any passenger shall desire to insure against death or personal injury to himself for any amount greater. than as aforesaid and shall, at any time before or at the_time of payment of the fare under the contract of carriage,formally request the shipowner so the insure him, the shipowner shall.
beobligedto issue or e2tise to bP issliPd in _his own name or-as agent for insurers approved under. article 15 a_policyht
27
such larger amount as the passenger shall demand, upon payment by the passenger of a premium and subject to-terms
an-d condition in accordance with Shedule B ('1 annexed titat in no case strait a shipowner-be cerm-pelted to issue a policy to any passenger for an amount exceeding ..e)
t en
i n-;es
the amount insured under Schedule A. 1-5, 14. Nothing in this Convention shall operate to prevent
a shipowner from re-insuring his liabilities under the insurances aforesaid with any Mutual Insurance Association, nsurance Company or Underwriters. 1-6, 15. No ship shall be allowed to carry passengers or to put to sea at any time with passengers on board unless the shipowner shall have in his possession at such time a certificate issued by the Government of the country under whose
flag his ship is sailing certifying that such shipowner is insured wholly or in part in such manner and form as may be required by such Government against liabilities in respect
of policies issued by him to passengers on board his ships with any- Mutual Insurance Associations, insurance Coinpules or Underwriters approved in that behalf by such Government or, if not so insured, that such shipowner is in a position to pay any claims in respect of the policies held by passengers on board all ships belonging to him at such time. Such certificates shall he approved on a condition of reciprocity by all contracting Governments. () A passenger on board any such ship shall be entitled to call for and to inspect such certificate or a copy duly certified by the Authdrity issuing such certificate. (4')
To be prepaped !ale), 00.
() Only the words underlined are new. The rest is interpolated from the original articles 16 and 17.
28
1.77-11-r-issuing a eertificate-ttrtder-the-provisiorrb if A1 t-1-6 le. the--eitrverttment-s-haft-have-regard-ter the-extent tV W slTipownt-r-is-hintself--insured;--whotty cn- in pcti t, cigc1IISt uf 1Julit.;c3 ticd byliin tu pabbrugcl Eabilitics I
*,
39111-2M-837-1-6624.r
PARIS SUB-COMMITTEE ,
2, 3 OCTOBER 1924)
I.
Report.
At the Gothenburg Conference the following Resolution was adopted
o That this Conference is of opinion that the pre» paring of an International Code of Affreightment » should be proceeded with forthwith; and that a Com-
p mittee be appointed by the Permanent Bureau to » prepare a draft for future consideration ».
In order to proceed with the work contemplated a Sub-Committee was appointed consisting of the following
gentlemen : MM. Ripert and Verneaux, Presidents, G. P. Langton, Secretary, Alten, Bagge, Berlingieri, Cleminson, Hennebicq, Sieveking, Sindballe, Sohr, Van Slooten. Mr H. R. Miller was unable to attend.
The Sub-Committee met in Paris on the 1st, 2 and 3 October 1924.
They had before them The Code prepared by the London Commission of the Comité Maritime International in 1914. A draft Code prepared by Committees appointed
30
by the Governments of Denmark, Finland, Norway and Sweden. The latter document was submitted by gentlemen who are members both of the Scandinavian Committees
and this Sub-Committee. They stated that in preparing their draft they had before them and look into careful -consideration the draft of the London Commission. 3) Draft-Codes prepared in various countries principally in Holland, France and Italy. In face of the existence of these Codes it was felt by the Sub-Committee that it would not be desired by the constituents of the Association to increase the number of documents by attempting, at any rate at this stage, the preparation of a IleW draft, but that it should prepare an accurate english translation of the Scandinavian draft as well as of the other. national drafts (*) and circulate it among the national Associations drawing attention also to the 1914 draft of which an english translation already exists; that the national branches be invited to consider these drafts in advance of the full Committee of Affreightment which will meet in the first half year of 1925 and be prepared to express an opinion upon the following questions Whether a general international Code is both desirable and practicable ? If so, whether it should be a Code of law or a Code such as the York-Antwerp Rules which should be incorporated in commercial contracts ? If the answer to the first question is in the negative (*) See Memorandum, p. 34.
- :31 -
whether an attempt should be made to secure greater international uniformity of law by giving attention to particular subjects and framing a short draft-convention on those points ? D) In that case might the following subjects usefully form the subject of such a draft
- Carrier's Obligation in Regard to Seaworthiness. Should the provisions of Articles 3, Sect. 1 and 4, Sect.
1, of the International Convention upon bills-of-lading be extended to cover contracts of affreightment which are not within the scope of the said convention ?
Responsibility of the Shipowner towards Billof-Lading Holders or Sub-charterers. a) As to the question of unsectworthiness of the ship,
the sub-committee has examined the three following ideas
The shipowner incurs no further responsibility when he has once discharged his initial duty in regard to seaworthiness at the commencement of the charter. The shipowner is responsible to holders of bills-oflading and sub-charterers in respect of unseaworthiness understood in the strict sense of inability to keep the sea. The shipowner is responsible in every case in which the charterer is .himself responsible to the holder of the bill-of-lading.
Which of these three views should be adopted ? If the
responsibility of the shipowner should' be preserved,
- 32 should it be a joint and several liability or a liability in default on the part of the carrier ?
b) As to the acts of the captain Is the shipowner responsible for these acts and to what extent ? Should there be a distinction between commercial errors and nautical errors ? Should there be a distinction according, to whether the captain is appointed by the owner or by the charterer, and whether or not the charter amounts to a demise ?
If distinctions are to be made, how should the provisions of the International Convention be applied as regards the lien upon the ship in respect of claims arising out of the bill-of-lading ?
Letters of Guarantee. Would it be wise to forbid the issue of letters of gua-
rantee or indemnity as, for example, in the terms of Article 7 of the draft-treaty of London ? The practice was condemned by a resolution of the International Shipping Conference (May 1924). (The general view of the Sub-Committee was that this practice should be forbidden).
Through Bill-of-Lading.
1) Ought the provisions of Article 50 of the drafttreaty of London to be adopted ? In Sect. 2 of Article 50, the last words, « or the inter-
mediate carrier », should be understood to mean, « or
the intermediate carrier whose liability has already been established ».
2) How are the provisions of the International Convention of 1924 on bills-of-lading likely to operate on through bills-of-lading, especially when there is a different maximum liability in respect of sea and land carriage ? V.
Distance Freight.
Is it possible to regulate the question of distance freight by international convention ? If it is possible to regulate this question, ought the priciples of the draft treaty of London to be maintained (Articles 25 to 34) ? VI.
Time Limits and Prescriptions.
Ought not Article 3, Sect. 3, of the Internatio.nal Convention upon bills-of-lading to be adopted in respect of all actions for loss or damage to goods, and ought not this rule to be preferred to the rule contained in Article 47 of the draft-treaty of London? (The Sub-Committee is in favour of this measure). Ought the period of limitation of actions arising out of carriage by sea to be one y-ear (International Convention of 1924? or two years (Article 48 of the drafttreaty of London), or is there ground for making a distinction between the various kinds of aCtion ? VII
Liens on Goods.
1) What are the liens upon .goods which the captain ought to have for payment of freight?
34
What liens should there also be upon the goods in respect of demurrage, contribution in general average, salvage, or for expenses in preserving the goods ? What priority is it possible to make between these different liens ?
VIII. The Law applicable to Contracts of CarriageSolution of Conflicts of Law. If no complete international unification of the rules
governing the contract of affreightment can be arrived at, may it not be possible to frame an international rule for the purpose of solving conflicts of law in determining the law applicable to any given contract ? Should .such law be The law of the ship's flag ? The law of the port of embarkation ? The law of the port of discharge ? Or the lex loci contractus ? e) Would it be possible to adopt a single rule to apply to all matters of conflict, or would it be more suitable to make distinctions between different parts of the contract of carriage ?
DIEMORANDUM. In view of the impossibility of establishing in French and in English the full text of the Dutch law and that of the French and Italia,n drafts, only the Scandinavian drafts have been printed hereafter. This vvould be part/y remedied if the French, Dutch and Italian Associations would kindly send along with their answers to the the articles of their law or drafts corresponding to Report above questionnaire, either in English or in French.
DRAFT CODE OF AFFREIGHTMENT PREPARE[) BY DANISH, FINNISH, NORWEGIAN AND SWEDISH GOVERNMENT COMMITTEES.
I.
Voyage Charters. Place of Loading. ARTICLE L
If the place of loading has not been fixed by contraet, the charterer may require the ves.sel to be taken to the place that he names, provided that access to it be open and that the v-essel may lie there afloat and in safety and that it will be able to leave with the cargo that it shall have taken. If the charterer has not named the place of loading in
good time, the vessel shall be taken to the customary place. Should this be impossible., the carrier shall select another place for the loading, taking into account, however, as much as possible the convenience of the charterer. ARTICLE 2:
Whether or not the place of loading has been fixed by contract, the charterer may require the ship to be towed from one place to another, he himself paying the cost of towage.
- :11; ARTICLE 3.
In the case of a contract for the carriage of goods in a general ship the provisions of articles I and 2 shall
apply only so far as it appears that the parties have agreed upon it.
Loaiding Time. ARTICLE 4.
The carrier is bound after readiness to load to allow a certain time without remuneration (lay days) and there-
after a certain time against remuneration (demurrage days). The lay days and demurrage days together make up the loading time. ARTICLE 5.
Unless otherwise agreed the lay days shall be the time considered necessary in normal circumstances to cornplete the loading at the place where it should be effected and the demurrage days half of that time.
The time is counted in workable days and workable hours. ARTICLE 6.
The loading time runs from the day when in conformity with notice given to the shipper the vessel is at the place of loading ready to receive cargo. If the notice
shall have been given not later than 4 o'clock of the afternoon of the preceding working day, time will be
counted from the hour at which work usually starts in the morning at the said place and otherwise from the hour when work re-starts after the midday rest, provided that the notice has been given not later than 10 a.m. the .same .
day. The notice referred to in this Article shall not be regarded as valid if given before the arrival of the vessel at the loading port. Finnish and Swedish text. When no particular shipIf the shipper cannot he advised the notice shall be per shall have been indicatgiven to the charterer. ed or the address of the In case of absence, the shipper is unknowii, the notice is considered given notice may be given to the When it shall have been sent charterer. If it proves hnby the most rapid way. pos,sible to find in the locality the exact person to whom the notice should be given and a communication is despatched to him in a proper way, the notice shall be banish. and Nonvegian te.vt.
deemed to have been duly oiven. - -ARTICLE 7.
When it shall have been impossible to bring the vessel to the right place of loading, the loading time shall none the less begin to run if the said impossibility is attribu-
table to the charterer or to a circumstance which the charterer ought to have taken into consideration rather than the carrier.
ARTICLE 8.
There shall not be reckoned in the loading-time time lost through a hindrance proceeding from the ship oc from the fact that the ship, in one of the cases contemplated in Article 1, paragraph 2. shall have been taken, by reason of her draught or of any other circumstance that the carrier ought to have taken into consideration rather than the chart4.n:er, to a place of loading other than the customary place. ARTICLE 9.
The remuneration payable in respect of demurrage days is carculated by running clays and hours. No remunera-
tion .is payable for the time contemplated by Article 8. If the remuneration has not been fixed by contract it will be fixed at the figure which. having regard to the freight and all other circumstances, can be judged equitable. ARTICLE 10.
Demurrage is payable day by day. When, in case of dispute relating to the remuneration, security shall have heen furnished for the sum in dispute, the carrier has not the right to make mention of his claitn on the bill-of-lading. ARTICLE 11.
In cases where reversible days for loading and discharge
have been fixed by the contract there must be employed for loading only such a nutnber of days as shall leave a sufficient number for the discharge.
- :39
-
Demurrage shall not be payable until the whole of the lay days have been used. ARTICLE 12.
In cases of contract for carriage of goods in a general ship the delivery of the goods for loading must, unless there is an express or implied agreement to the contrary, take place in a reasonable time after notice.
The Loading. ARTICLE 13.
1n the absence of express or implied agreement to the contrary the charterer must deliver the goods alongside the ship. The carrier takes them on board and effects the stowage.
In any of the case, contemplated in Article 1, paragraph 2, when the -hip has, by reason of its draught or of any other circumstances which the carrier should have taken into account rather than the charterer, been taken to a place of loading other than the customary place, the carrier is nevertheless bound to take the goods in charge at the customary place. ARTICLE 14.
The goods must be delivered for loadhig in such order and in such a way that they can be conveniently taken in charge and well stowed. ARTICLE 15.
The carrier must see to it that the loading of the goods is done with despatch.
4.0
Failing express or implied agreement to the contrary, the goods must not be loaded on deck. ARTICLE 16.
If there are delivered for loading goods whose trans-
port might involve risks to persons, to the ship or to other goods, they must be distinctly marked as dangerous and the shipper shall furnish all other indications necessary to avoid damage. ARTICLE 17..
If there are delivered for loading goods requiring particular care, the fact shall be declared and indicated distinctly on the goods. Money, securities and all other precious objects Whatsoever must be expressly declared as such. ARTICLE 18_
The shipper must deliver to tbe carrier all papers and furnish hirn all necessary particulars. If he neglects so
to do, so that the departure of the -vessel is delayed beyond the period of lay days. the carrier shall be indemnified for this delay in accordance with the provisions
relating to indemnity for demurrage days. If the delay exceeds the demurrage days and the losses resulting therefrom are not covered by the indemnity due under the terms of the foregoing provisions, the carrier may demand damages unless it must be. assumed that the delay is not imputable to the shipper. ARTICLE 19.
The carrier must on request by the shipper deliver receiPts for the goods as and when received.
ARTICLE 20.
When the goods have been loaded and the carrier has received all necessary papers, the shipper is entitled to delivery of a bill-of-lading. ARTICLE 21.
In case of the chartering of the whole, of a ship the carrier cannot without the consent of the charterer load goods for his own account or for the account of a third party.
The Voyage. ARTICLE 22.
Without the consent of the charterer the goods cannot be despatched by a ship other than the ship which has been named in the contract or declared by the carrier in accordance with the contract. ARTICLE 23.
The vessel shall leave and proceed on her voyage without unnecessary delay. The ship may deviate to assist persons in distress, but
not to save another vessel or goods unless it can be assumed that the salvage can be performed without material inconvenience to the charterer. ARTICLE 24.
If the ship is delayed in the course of. her voyage by
reason of the fact that her port of destination has not been indicated in proper time, the carrier has the right
to an indemnity in accordance with the provisions of Article 18. ARTICLE 25.
The carrier must bear the tonnage, canal and pilotage dues and the expenses of towage and quarantine as well as'all other expenses which relate to the transport of the (roods.
The Care ot the Goods. ARTICLE 26.
From the moment when the goods are received to that of their delivery the carrier must take care of the goods and in all other respects protect the rights and interests of the owner of the goods. ARTICLE 27.
If while the goods are in the care of the carrier they have been lost, damaged or diminished, the carrier is responsible for them, -unless it must be assumed that the
loss, damage or diminution has been caused by a circumstance which is not imputable to the cárrier or a person for whom he is responsible. ARTICLE 28.
If the care of the goods demands special measures the cost of which the carrier is under no obligation to bear, or if in case of abandonment of the voyage, the goods ought nevertheless to be forwarded to their destination, the carrier may contract for the account of the owner of
the goods all engagements necessary to this end. If money
is required for any of the above mentioned objects, the carrier is authorised to procure the sums necessary by loan or by the sale of part of the goods. If it is impossible to keep the goods without risk of serious deterioration or if in case of abandonment of the vo-yage the expense necessary to conserve the goods or to forward them to their destination is too great, the carrier may sell the goods.
For the engagements that the carrier has contracted on the account of the owner of the goods, the latter is not hable beyond the goods. ARTICLE 29.
Before contracting an engagement or taking anv other: Measure for the account of the owner of the goods, the
carrier must if possible ask for his instructions. If be considers the goods should be sold and if he has nOt instructions he shall take the advice of experts. The sale of the goods shall be made by public auction or under other conditions offering sufficient guarantees. ARTI:LE 30.
If the carrier has contracted engagements for the account of the owner of the goods without being author-
ised to that end by Article 28, the contract shall none the less bind the owner of the goods provided that it must
be assumed that he with whom the contract has been concluded has acted in good faith.
ARTICLE 31.
Danish .text.
Finnish, Norwegian and
Swedish text. In the case of a ship carExcept in the case of a rying general cargo the carchartering of a whole vessel rier cannOt restrict his responsibility for the goods the carrier may not restrict except for loss 017 damage his responsibility for the arising from a fault or ne- goods except for loss or dagligence committed i» the mage arising from a fault or negligence committed in navigation or management the navigation or manageof the vessel. ment of the vessel. In the case of sub-charIf the carriage of the tering or through transport. goods is intended to be the carrier has nevertheless partly effected by another the right to exonerate him- carrier (through transport), self from all responsibility the carrier shall neverthefor loss or damage which is less have the right to exonershown lo have arisen while ate himself from all respon-
the goods were under the sibility for loss or damage
care of the owner of a ship -which is shoNvn to have chartered by the carrier. arisen while the care of the provided that the shipowner goods devolved upon the
has himself accepted the other carrier. In any other usual responsibility of a car- case 'where the carrier was rier of 'general cargo in the entitled to effect the carriage trade in question. by 'another carrier, the same provisions are applicable in so far as the responsibility
has been assumed by that other carrier.
- 45 Discharge and Delivery of the Goods. ARTICLE 32.
As regards the place and time of discharge the provisions of Articles 1-10 are applicable mutatis mutandis. ARTICLE 33.
On discharge, in the absence of express or implied agreement to the contrary-, the carrier must deliver the goods and the receiver must take delivery alongside the ship.
The provisions of Article 13, paragraph 2, are applicable mutatis mutandis. ARTICLE 34.
The carrier must see to it that the discharge is effected with despatch and that the goods are delivered in such a w-ay as to permit, delivery to be taken as conveniently as possible having regard to the circumstances. ARTICLE 35.
In the case of a ship carrying general cargo and in the absence of any express or implied agreement to the contrary, the carrier has to advise the consignee as to the time when the goods will be discharged or can be removed.
If notice cannot be given to the receiver, a public advertisement must be substituted.
ARTICLE 36.
Before taking deliver) of the goods, the receiver may
proceed to examine them, in order to determine their condition.
Danish and Norwegian text.
(This paragraph is omitted).
Finnish and Swedish text.
If the receiver wishes to make a claim on account of
damage or diminution, he shall give notice to the
carrier in a reasonable time after the moment when he shall
have
perceived
or
ought to have perceived the
damage or diminution, at the same time indicating the Observations that he intends to formulate. Failing this he
shall not be entitled to an indemnity unless it must be .assumed that time damage or
diminution is imputable to the carrier or a person for whom the carrier is responsible. ARTICLE 37.
The receipt of the goods involves for the receiver the obligation to pay the freight as well as any other sum
that the carrier is entitled to claim from the charterer under the terms of the hill-of-lading or consignment note.
ART/CLE 38.
The carrier is not hound lo deli-ver the goods before the receiver has paid or deposited what he is bound to
pay under Article 37 as well as all privileged claims giving rise to liens on the goods. When the amount of the contribution in general average has not been ascertained, the goOds cannot be retained if the receiver has furnished security. The amount deposited can be collected by the carrier after delivery of the goods. ARTICLE 39.
If the receiver has applied for the goods, but fails to fulfil the obligations imposed on him by Article 38, or delays the discharge, so that it cannot be effected in due time, the carrier may discharge the goods and deposit' them for the account of the receiver, whom he shall :notify accordingly.
If nobody qualified to receive the goods appears soon enough to enable the discharge to be completed in due time, the carrier must discharge and deposit the goods and notify the shipper and charterer. If in the case referred to in Article 35, the goods ha-ve not been removed in due time, the provisions as to the deposit of same shall apply nuitatis nuttandis. ARTICLE 40.
If the discharge or the depositing of the goods delays the vessel beyond the discharging time without it being caused by circumstances relating to the carrier, the latter
has the right to an indemnity in accordance with the
provisions relating to indemnity for demurrage days. If the losses are not covered by this indemnity, the carrier may demand damages, unless it must be assumed that the delay is not imputable to the receiver. ARTICLE 41.
If the goods have been deposited, the carrier has the right to have sold by public auction or under any other. conditions of adequate security the quantity necessary to cover the claims giving rise to liens on the goods. If the sale of the goods does not suffice to cover the carrier's liens, the charterer shall be responsible for the deficit. ARTICLE 42.
If the goods have been delivered to the receiver, the carrier may not make any- demand against the charterer for a debt which should ha-ve been paid by the receiver,
the amount of which could have been raised on the goods.
Freight. ARTICLE 43.
If the amount of the freight has not been agreed, it shall be fixed according to the freight curretit at the loading port at the time when the carrier received the goods. ARTICLE 44.
No freight is due for goods which do not exist at the end of the voyage unless they are lost by inherent vice or by improper packing.
If the freight has been paid in advance for goods for which the charterer is not obliged to pay freight, the amount shall be refunded, save in the case of express or implied agreement to the contrary.
Delays Due to the Carrier. ARTICLE 45.
If the fulfilment of the charter or other contract of carriage of goods undergoes a material delay on the part
of the carrier, the charterer may cancel the contract. When the vessel should be ready to load by an agreed date, any delay is deemed to be material.
If the carrier gives notice to the charterer that delay has taken place or may be presumed with certainty, the charterer is obliged, if he wishes to cancel the contract, to inform the carrier without unnecessary delay.
The charterer cannot require discharge of goods already embarked if it would involve material inconve-nience Lo the other charterers. ARTICLE 46.
If the contract is cancelled after a part of the voyage has been performed, the carrier is entitled to distance freight for the remaining goods. Distance freight constitutes any part of the freight remaining after deducting the eStimated cost of forwarding the goods to their destination. ARTICLE 47.
If by reason of the loss of the vessel the contract, 4
5(1
after a part of the voyage has been performed, ceases to be in force, the carrier is entitled lo distance freight. ARTICLE 48.
If the charterer sustains damage by reason of delay in the execution of or non-performance of the. contract On the part of the carrier, the charterer shall be indemnified,.
unless it be proved that the delay is not imputable to the carrier or to a person for whom he is responsible.
Non-Delivery and Withdrawal of Goods. ARTICLE 49.
Danish and Norwegian text.
If at the expiration of
Finnish and Swedish text, If at the expiration of the loading time no goods have been delivered, the charterer -hall be deemed to have cancelled the contract arad the
the loading time no goods have been delivered, the charterer shall be deemed to have cancelled the contract and the carrier is en- carrier is entitled to an intitled to an indemnity for demnity for loss of freight
the damage resulting to him. and expenses caused him by If the carrier has omitted. the non-delivery of the without good cause, to take gocAs, in so far as these exother goods in replacement, penses are not covered by this circumstance shall be the above mentioned indemtaken into, consideration in nity.
determining the indemnity.
In determining the loss of freight, account shall be taken, not only of the sav-
51
and expenses which may have resulted for the
ings
carrier by the non-delivery of the goods, but also of the freight of the goods which the carrier shall have taken
or omitted, without good cause, to take in replacement. ARTICLE 50.
Danish and Norwegian text.
Finnish and Swedish text.
If the quantity of goods If the quantity of goods stipulated in the contract stipulated in the contract is is not delivered for loading. not delivered for loading, the carrier is entitled to an the carrier is entitled to an indemnity for the damage, indemnity, in conformity caused him by the char- with the provisions of Art. terer's omission to deliver 49, for the loss of freight the total quantity of the and expenses caused him by the charterer's omission to goo ds. If after notice the char- deliver the total quantity of terer has not paid the above indemnity nor furnished security for payment before the expiration of the loading time, the carrier may cancel the contract and is entitled
to an indemnity for the
croods.
If after notice the charterer has not paid the
above indemnity nor furnished security for payment before the expiration of the loading time, the carrier
damage caused him by the may cancel the contract and cancellation of the contract. is entitled to an indemnity as stated in Article 49. ARTICLE 51.
The charterer has the right to withdraw the goods, either in the loading or in an intermediate port, provided that the unloading may take place without material incon\ enience to the carrier and without damage to another charterer. Danish and Norwegian text.
Finnish and Sivedish text.
If the goods are withIf the goods are -withdrawn in the loading port, drawn in the loading port, the carrier is entitled to an the carrier is entitled to an indemnity for the damage indemnity for loss of freight resulting ,for him. and other damage whatsoever resulting for him. In case of withdrawal of the goods in an intermediate
port, the carrier is entitled to the whole freight and to an 'indemnity for any increase in expenses and for all other damages whatsoever.
Reciprocal Right to Cancel the Contract. ARTICLE 52.
If after the conclusion of the contract it is found that the vessel risks being captured or .that the vessel or the goods will be exposed to war damages, or that these classes of risks have considerably increased, the carrier
as well as the charterer has the right to cancel the contract without indemnity, provided he does so without unnecessary delay. The same provision.s shall apply, if it is found after the conclusion of the contract that the voyage of the vessel or the transport of the goods is prevented by prohibition of export or import, embargo, blockade or by an.y other Measure of a public authority. If the risk of the prevention can be avoided by the non-loading of a part of the goods or their unloading, this shall be done at the instance of either party without indemnity to the other. The rule laid down in Article 21
shall not then prevent the carrier from taking other goods.
Danish and Norivegian text.
Finnish and Swedish text.
The carrier has the The carrier has the right right also to cancel the con- also to cancel the contract tract, if after notice the if after notice the charterer
charterer does not pay an does not pay an indemnity indemnity for the damage in conformity with the procaused to the carrier by the visions of Article 50, paraabove-mentioned non-load- graph 1, or furnish security ing or unloading of goods for payment. or does not furnish security for payment. -
If part of the voyage is already performed, the carrier has the right to distance freight.
II.
Time Chartering. ARTICLE 53.
In the case of a time charter, the carrier is obliged, during the whole time that the vessel has to be at the disposal of the charterer, to perform the voyages required
by the charterer in conformity with the stipulations of the contract. ARTICLE 54.
The carrier shall maintain the vessel in good condition
and see that it is properly equipped and fitted out for ordinary commercial navigation. He is, however, not obliged to provide fuel for the engines or the water for the boilers. ARTICLE 55.
The charterer shall carry out the loading, stowage and unloading, without requiring the assistance of the captain
or crew beyond what is usual in the case of a voyage charter in the trade in which the vessel is engaged. ARTICLE 56.
Save in the case of express or itnplied agreement to the
contrary, all voyage expenses which the carrier is not bound to bear, under the provisions of Articles 54 and 55 shall be borne by the charterer. ARTICLE 57.
The carrier is bound to issue bills-of-lading for the
goods loaded, containing the conditions of trarisOort customary in the trade in which the vessel is engaged.
If thereby the carrier undertakes more extensive liabilities than those provided in the time charter, the charterer is obliged to indemnify him ARTICLE 58.
The carrier is not obliged to perform a voyage which would expose the vessel or persons on board to danger which could not reasonably have been foreseen at the conclusion of the contract. ARTICLE 59.
The carrier is obliged to allow a fresh voyage to be commenced as long as the time stipulated by the contract
has not expired, provided that it must be assumed that the voyage will not materially extend beyond the stipulated time.
For the period by which the stipulated time is thus exceeded, hire shall be due as for the time stipulated. ARTICLE 60.
Hire is payable monthly in advance. If not paid in due
time, the carrier may cancel the contract and claim damages. ARTICLE 61.
Hire is not payable for time lost by reason either of measures taken to maintain the condition of the vessel,
or by the fact that the vessel is not in good condition or properly equipped or provisioned, or of any other circumstances relating to the carrier. ARTICLE 62.
If the vessel is lost., without it being possible to determine the moment when the loss occured, hire shall be paid up to half the lime normally necessary for the voyage from the place whence the last news from the vessel was received, to the place of destination.
III.
BilI-of-Lading.
Issue and Contents of the Bill-of-Lading ARTICLE 63.
The bill-of-lading is the written acknowledgment of
the carrier that the goods have been loaded and that they are to be delivered at the place of destination. The bill-of-lading shall indicate the place and time of its issue. ARTICLE 64,
At the request of one of the parties, the bill-of-lading hall indicate the name of the shipper, port of loading, nature of the goods, their weight, measure or number, packing of the goods, and their marks and condition, the
name of the vessel, the class, the home port and na-
tionality, the stipulated freight and other conditions of transport and delivery of the goods. The carrier may make his reserves as to the particulars regarding the goods, the accuracy of which he cannot be deemed to be under an obligation to verify. ARTICLE 65.
The bill-a-lading may be made out to a person named,
or to a person named or his order, or to bearer. If it is made out to a person named, it shall nevertheless be con-
sidered to be a bill-of-lading to order, unless a reserve has been made by the words (, not to order » or by other equivalent terms. ARTICLE 66.
The bill-of-lading shall be made out in as many copies of the like tenor as the shipper deems necessary and the text shall state the number of copies issued.
Competence to Require Delivery of Goods. ARTICLE 67.
The person who, by the contents of the bill-of-lading, or in the case of an order bill-of-lading, by a series of continuous endorsements, or by an endorsement in blank, appears to be the legitimate holder of the bill-of-lading, is entitled to require delivery of the goods. ARTICLE 68.
Danish and Norwegian, text.
At the place of destina-
Finnish and Swedish text.
At the place of destina-
tion it is sufficient that the tion, the holder of a bill-ofreceiver justifies his title lading is authorised to reby only one copy of the quire delivery of the goods, bill-of-lading.
e-ven when the bill-of-lading
At other places it is ne- has been issued in several cessary that the other co- copies. At other places, such a pies should be delivered up or that security be given holder of a bill-of-lading for claims which the hol- may not require delivery of ders of the other copies the goods, unless the other copies are delivered up or might have. security given for the claims
which the holders of the other copies might have. ARTICLE 69.
If at the port of destination or at another place where the goods are to be delivered, several holders, authorised by various copies of the bill-of-lading, present themselves,
the carrier shall deposit the goods for the account of the receiver, and notify without delay those persons who have presented themselves. ARTICLE 70.
If the carrier so requires, the receiver is bound to deposit the bill-of-lading before unloading commences and to give receipts for same, as delivery of the goods is made. When the goods have been delivered, the bill-of-lading,
bearing a receipt for delivery, shall be handed to the carrier.
- 59 ARTICLE 71.
(This Article contains various national rules as to the nullifying of a bill-of-lading after it has been issued).
Relations between Carrier and Receiver. ARTICLE 72.
In the relations between carrier and receiver, the bill-
of-lading determines the conditions of transport and delivery of goods. The stipulations of the contract of affreightment which are not inserted in the bill-of-lading
may be imposed on the receiver only in so far as the bill-of-lading incorporates them. Even though the bill-of-lading contains a reference to the contract of affreightment, no indemnity may be required from the receiver for demurrage or other delays arising during the loading, if the bill-of-lading does not expressly state that the claim has not been paid. ARTICLE 73.
The carrier is responsible to the receiver for the accuracy of the particulars of the bill-of-lading as to the goods, unless he has made reserves in this respect or the receiver should have understood that the carrier had not checked the accuracy of the said particulars. If the carrier has discovered, or if in paying ordinary attention he must have -discovered the inaccuracy of the
particulars, he is liable, unless he has made a special note of the inaccuracy in the bill-of-lading.
- 60 ARTICLE 74.
Danish and Norwegian text.
Finnish and Swedish text.
The provision of Article
If damage to goods or de73 shall also apply when fects in packing of same are the bill-of-lading does not not mentioned in the bill-ofindicate that goods so load. lading, although the carrier ed are loaded on deck, or lia discovered or, by paying when the bill - of - lading ordinary attention to same,
does not mention damage to goods or defects in their packing which the carrier before issuing the bill-oflading discovered or could have discovered by paying ordinary attention to same.
could have discovered this damage and these defects before issuing the bill-of-lading, he
cannot, on the
strength of these, claim re-
lief from liability for the goods.
The carrier shall also not be entitled in order to exonerate himself from liability to take advantage from the circumstance that the goods have been shipped on deck unless this be mentioned on the bill-of-lading.
- 61
The Right of a Holder of a Bill of Lading to Goods ARTICLE 75.
Norwegian text.
Danish, Finnish and
If the holder of a bill-oflading, issued in several co-
Swedish text.
If the holder of a bill-of-
pies, has transferred his lading has transferred copies
right to different persons, of the bill-of-lading to difand one of them obtained ferent persons, the holder of delivery of the goods in the first copy transferred good faith at the place of shall have priority. destination, he is not obliged If the legitimate holder of to give them up to the another copy of the bill-of' others. lading has obtained delivery
of the goods at the place destination, he is not obliged to give them up to of
the others, unless it be prov-
ed that he was not in good faith at the time of the delivery, ARTICLE 76.
If a bill-of-lading to order or to bearer or another billof-lading, which does not contain any reserve against endorsement, has been lost, the person who by endorsement, pledge, or similar title has in good faith become holder of the bill-of-lading is not obliged to deliver it to the person who has lost it.
09.
ARTICLE 77.
The right of a seller in certain cases to prevent delivery of the goods sold or to claim their restitution is not lost
by delivery of the bill-of-lading to the buyer. If by endorsement, pledge or similar title, a bill-of-lading to order or to bearer or other bill-of-lading which does not contain
a reserve against the endorsement has come into the hands of a third party, the seller has not the above mentioned right against tbe latter, unless it be proved that the holder of the bill-of-lading was not in good faith when he acquired it.
« Received for Shipment » and a Through » Bills-ot-Lading. ARTICLE 78.
If before shipment has taken place, the carrier has delivered a written acknowledgment that the goods have
been received for transport and that they are to be delivered at the place of destination., the provision of this chapter on bill-of-lading shall apply to such a « received for shipment » bill-of-Iading, mntatis mutandis. If a (( received for shipment » bill-of-lading has been issued, a « shipped » bill-of-lading shall not be issued after loading, unless the « received for shipment » bill-oflading be restored. ARTICLE 79.
If the carriage of the goods has to be effected partly
by another carrier and the first has issued a written
acknowledgment that the goods are shipped or received for shipment and that they are to be delivered at the place of destination, the provisions of this chapter on bills-oflading are applicable to such a « through » bill-of-lading mutatis mutandis. If a through-bill-of-lading has been issued, separate bills-of-lading for different parts of the transport shall not be issued unless they state that the goods are carried under a through-bill-of-lading.
GERMANY GERMAN ASSOCIATION OF MARITIME LAW
Report on the International Code of A ffreightment. The German AsSociation of Maritime Law beg to reply
as follows to the questions submitted by the Paris SubCommittee
It is very desirable that a uniform basis should be arrived at for all Rules concerning maritime Affreightment. The rules should be made the subject matter of an International Code. the provisions of which will have
to be introduced into the national laws of all countries adhering to the international Convention. The question as to which of those rules are to be considered as points of public order. and in reg-ard to which therefore no contrary agreements bet-ween parties should be lawful, will have to be settled especially for each object in every particular case, if need be. If no agreement can be reached as to a uniform
basis for the whole of the matter of Affreightment, a general agreement should be arrived at on certain points at least of the problem; in such casé, it would be preferable to proceed in the same manner as for the York and
Antwerp Rules and to insert the provisions vs,rhich have been passed, into private contracts. D.
Consequently, the answer given to questions I
to VIII should be considered in the first place as a basis for a discussion comprising the whole subject of maritime Affreightment, and in the second place as a set of rules to be incorporated into contracts by the parties interested therein. I. The German Association are of opinion that the provisions of articles 3 1 and 4 1 of the Hague Rules should be extended to apply to all contracts of Affreights
ment. Although this means a new burden put on the Shipowners, the latter have emphatically given their agreement for the sake of arriving at a uniform solution of the questions at stake. Howe-ver, it would be desirable that a unanimous accord be reached and should come to expression in the Convention:that is to be passed, in regard to the words (( beginning of the voyage » (Hague Rules, Art, 3 1). It is not possible to arrive at a uniform law if it is not clearly known at what precise moment the Carrier shall be bound to supply his ship in seaworthy condition. The definition given by the German Code Of commerce,
for instance, does no longer ans-wer the requirements of modern commerce; its 757 states : Is considered as the voyage, that for which a ship has been equipped anew,
or which it has undertaken either in consequence of a new contract of affreightment, or after having completely discharged its cargo. If the national legislations or the Courts of the various countries consider the begin5
ning of the voyage in a different manner, it will not be possible to attain uniformity. Sub-chartering. The solution such as it results
from the Conventions on Limitation of Shipowners' Liability, on Maritime Mortgages and Liens and on Billsof-Lading, is the best one possible; it avoids in the best way the difficulties which arise owing to the multiplicity
of the contractual connections and further facilitates to the cargo interests the means of recovery for their claims by granting them a lien on the carrying ship. The carrier whether this be the shipowner, or the time-charterer is, under the Hague Rules, or the principal charterer responsible for the full seaworthiness of the ship (Art. 3 § 1 a, b, c) and for the acts of the Master, of the mariners, &c... in so far as commercial faults, but not negligence in the nautical management, are concerned. Further. the liability of the shipowner is involved in so far as the Convention in respect of Maritime liens grants to the cargo a lien on ship and freight. It should be observed that claims for loss of, or damage to, cargo rank under Nr. -1 of Article 2 of the said Convention.
The answer to the special questions put under Nr. II results from the solution of principle which has just been set out. The maintainance of the liens and of their present rank is of the highest importance.
On the other hand, it seems neither necessary nor logical to establish a direct liability of the Shipowner who is not himself the carrier, towards the cargo. Ill.
Letters of guarantee. It is better to leave to the court before which the case is to be tried, the decision
as to whether a letter of guarantee or indemnity should be null and void as being contra bonos mores. Very often the defect of the packing is so trifling and of small importance for the contents, or the condition of the merchandise itself has been so little damaged that this does
not impair at all the value of the cargo and that no consignee would decline to receive it. But if, in such case, the buyer receives a bill-of-lading, in which an over-
cautious or all too minute Master writes a clause such as « defective packing » or goods damaged », and if, in addition, the market-price has gone down since the day of the sale, such buyer would refuse the bill-oflading or claim a reduction of price claims which would no doubt be unjustified; but that would entail delays, unfounded claims and quite useless lawsuits. Take
also the case of iron bars, often showing rust already at
the time of shipment, and which, after discharge are deposited at an open spot where they are rusting further. The same difficulties would arise. If the bill-of-lading is clean, the buyer will receive those bars without hesita-
tion, after having verified their condition; whereas a remark inserted in the Bills-of-Lading would suggest the
thought of making a claim. In that case it seems quite in order to require from the Master a clean receipt and, in order to provide for all possible events, to give him a letter of indemnity for the very unlikely case where the Consignee would decline to receive the goods or would bring an action against the Shipowner. On the other hand, letters of indemnity certainly give raise to many abuses; but to prohibit them absolutely would be like throwing away the apple with its stalk and
ning of the voyage in a different manner, it will not be possible to attain uniformity. II.
Sub-chartering. The solution such as it results
from the Conventions on Limitation of Shipowners' Liability, on Maritime Mortgages and Liens and on Billsof-Lading, is the best one possible; it avoids in the best way the difficulties which arise owing to the multiplicity
of the contractual connections and further facilitates to the cargo interests the means of recovery for their claims by granting them a lien on the carrying ship. The carrier whether this be the shipowner, or the time-charterer or the principal charterer is, under the Hague Rules, responsible for the full seaworthiness of the ship (Art.
3 § 1 a, b, e) and for the acts of the Master, of the mariners, Sze... in
so
far as commercial faults, but
not negligence in the nautical management, are concerned. Further, the liability of the shipowner is involved in so far as the Convention in respect of Maritime liens
grants to the cargo a lien on ship and freight. It should be observed that claims for loss of, or damage to, cargo rank under Nr. -I of Article 2 of the said Convention.
The answer tu the special questions put under Nr. II results from the solution of principle which has just been set out. The maintainance of the liens and of their present rank is of the highest importance.
On the other hand, it seems neither necessary nor logical to establish a direct liability of the Shipowner who is not himself the carrier, towards the cargo. Letters of guarantee. It is better to leave to the court before which the case is to be tried, the decision
as to whether a letter of guarantee or indemnity should be null and void as being contra bonos mores. Very often the defect of the packing is so trifling and of small importance for the contents, or the condition of the merchandise itself has been so little damaged that this does
not impair at all the value of the cargo and that no consignee would decline to receive it. But if, in such case, the buyer receives a bill-of-lading, in which an over-
cautious or all too minute Master writes a clause such as « defective packing n or « goods damaged », and if, in addition, tbe market-price has gone down since the day of the sale, such buyer would refuse the bill-oflading or claim a reduction of price claims which would no doubt be unjustified; but that would entail delays, unfounded claims and quite useless lawsuits. Take also the case of iron bars, often showing rust already at
the time of shipment, and which, after discharge are deposited at an open spot where they are rusting further. The same difficulties would arise. If the bill-of-lading is clean, the buyer will receive those bars without hesita-
tion, after having verified their condition; whereas a remark inserted in the Bills-of-Lading would suggest the
thought of making a claim. In that case it seems quite in order to require from the Master a clean receipt and, in order to provide for all possible events, to give him a letter of indemnity for the very unlikely case where the Consignee would decline to receive the goods or would bring an action against the Shipowner. On the other hand, letters of indemnity certainly give raise to many abuses; but to prohibit them absolutely would be like throwing away the apple with its stalk and
(i8
to act without discrimination. Besides, even such solemn
prohibition would not eradicate the practice of letters of indemnity; they will none the less be given and accepted. For these reasons, it is better to leave it to the Judge's discretion to decide, in every instance, whether be should hold such document to be void. The principle of law amnia Tice contra bonos mores deducuatur, nullius monienti sunt would not be infringed. On the other, side. Underwriters condemn the .practice of letters of indemnity as lwing altogether inadmissible
and immoral. It is a fraud to the detriment of Underwriters and Consignees. Underwriters will decline to -write a risk when a letter of indemnity has been issued,and if the fact of its existence has been unknown by them, they will cancel the insurance on the ground of reticency and false declaration. IV. Through-bill-of There was general agreenient that the through-bill-of-lading is becoming more and more important in international commerce; that consequently, the matter should be regulated by means of an international convention and that, as far as 'possible, the through-bill-of-lading should be given a stability, security and value equal to that of an ordinary B/L. To allege that the question is n.ot so important because goods are always insured and that -Underwriters
will pay, is no serious argument. Those who say so forget that the Underwriter, takes the place of the assured, after having paid to die latter the damage which occurred, and that the Underwriter loses his remedy to the same extent
as the Assured's interests are not protected properly.
Now, claims resulting from an ordinary bill-of-lading have a lien on ship and freight, that is to say that the consignee
has a direct action against the party who tenders the goods to him. Therefore it would be logical and to the advantage of commerce to establish the liability of the last carrier in respect of any loss or damage-occurring at whatever stage of the voyage. It goes without saying that in addition, each carrier will remain responsible in res-
pect of loss or damage occurring during the time the goods are in his keeping. This solution is in accordance with Article 50 of the London Draft. Others chiefly the have declined to be considered as guarantor carriers
for any previous carrier. They also acknowledge the enormous importance of establishing .the through-bill-oflading on such basis as to enable it to circulate with the
same facility as on ordinary bill-of-lading; they do not deny that it would deprive the through-bill-of-lading of this altogether necessary basis if we were to leave to the Receiver of the goods the care and the burden of finding out among all, the particular carrier under whose charge the goods were at the time the accident occurred and to grant him a claim against the latter only. In view of these difficulties, they suggested the following solution, viz: the last carrier can be sued and is liable in respect of any damage that occurred during the whole voyage, unless he proves where the aceident or accidents happened, so as to enable the consignee to proceed against the negligent carrier. Therefore, if there is no possibility of establishing definitely the liability of the last carrier, though he would be at liberty to find his 'remedy against a pre-
vious carrier, this second alternative at least should be
- 70 adopted in order to ensure to the through-bill-of-lading the value which answers the requirements of modern commerce.
Distance freight.
The majority of the German Association decided in favour of maintaining distance freight and propose to compute same in accordance with Section 631 of the German Code of Commerce, enacting that in calculating distance freight there should be taken into account not only the portion of the voyage already effected as compared with the distance retnaining to be covered, but, in addition the proportion of disbursements, costs, time, dangers and difficulties incidental to the dis-
tance already covered, as compared with these which the completion of the whole agreed voyage would have involved, under these various heads.
Time limits and Prescriptions. In regard to these two questions, the German Association are of opi-
nion that preference should be given to the solution adopted by the Hague Rules, over the provisions of the London Draft. They wish however to add the following remark. In many cases, goods are discharged on quay; now, according both to the law and custom in Germany, the quay is considered as being part of the vessel, that is to say that the ship remains liable for the condition of such goods until the consignee takes reception on quay; this may require weeks. Art. 3 § 6 of the Hague Rules iefers to removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage. According to this text, notice of loss or damage
-71
might be given, in case the consignee does not remove the goods say 3 weeks after their discharge on the quay,
three weeks after their arrival. Such state of things cannot be accepted by the carriers: who, by the adoption of the Hague Rules, have already granted to consignees a position much more favourable than they had under German law. Therefore carriers should be allowed to insert in their Charter-parties or Bs/L. a clause to the effect that, after a specified short period of time, the goods are deemed to remain at consignees' risk and
are considered, under Art. 3 § 6 of the Hague Rules, as having been remitted into the custody of the consignee.
The German Association deems it essential that in the Convention to be passed, such clause, or a clause to the same effect should he expressly mentioned as being lawful.
Liens on Goods. The German Association propose the following regulations There will be a lien on the goods and their accesories in favour of claims for VII.
10) freight, half-freight, demurrage, expenses made in the course of the voyage for the benefit of cargo (customs dues, cost of maintainance, &c.) 2°) General Average contribution; 30) Salvage expenses;
This lien can be enforced equally on the goods which are still in the possession of the Master, and for a period of 30 days after their delivery, provided they are still in possession of the consignee or of a third party
unless the latter have acquired same bona fide.
The manner in which the lien is enforced, is .to be
regulated by the national law of the place where tbe creditor enforces the sale of the goods. The claims in respect of General Average and of Salvage expenses rank before the other claims mentioned in Article I. The claims mentioned under Nrs 2 and 3 of Article I are paid by priority in the inverse order of the dates at which they originated: claims relative to the same event
are reputed as having come into existence at the same time and are paid an equal pro rata proportion, should the sale price prove inadequate to satify them in full. By accessories of (he goods are meant 10) indemnities (lue in respect of General Average; 2°) damages due by third parties by reason of damage or loss of goods:;
30) proceeds of sale, if the Master, in virtue of his legal powers, has, in the course of the voyage and for the protection of the cargo, sold the whole or part of the goods.
The lieu on the accessories may be enforced as long as the amounts are still due or in the hands of the Master. After their payment to the owner of the cargo or to his assign, the latter is personally liable up to the amount so received. VIII.
The law applicable to Contracts of Carriage. Is a general international Code of Affreightment both desirable and practicable? It is by no means necessary to settle this by an international Convention. A Convention regulating the whole A.
- '73 - -
matter of maritime Affreightment would render useless such special and previous Convention. The difficulties are not so pressing as to justify recourse to an international Convention which it is hoped would only be provisional. However, if it is decided 80 to settle the question, the German Association would suggest that the lex loci should regulate everything which concerns the validity of a contract; for any other questions, the law of the flag should be ruling. MAX MITTELSTEIN.
A. SIEVEKING.
N 0 RWAY NORWEGIAN ASSOCIATION OF MARITIME LAW
Report on the Code of Affreightment. The questions raised by the Paris Sub-Committee in Bulletin nr. 67 have been examined by the Norwegian Association, and we beg to submit the following observations
A general code of affreightment would in itself be desirable, if founded not on the particular law of any given country or group of countries, but on principles universally adopted in charters and contracts of Carriage by Sea. We believe that the Scandinavian draft might be useful as the basis of such a Code, because it has been built
up on the actually exi,ting contract practice under appli-
cation of general principle- of law and abandonment of all inherited peculiaritie, of the national maritime lawb.
The international rules of affreightment ought to be a code of law. If it proves impossible to arrive at a general code, we agree that the efforts be concentrated on the forming of a draft convention on special points.
As to the suggestions of the sub-committee in this respect we beg to observe :
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Supposing that the international convention upon Bills-of-Lading be accepted, it seems reasonable to extend the provisions of its art. 3 sect. 1, and art. 4 sect. 1 to cover all contracts of affreightment. We understand -these questions as relating only to sub-chartering and Bills-of-Lading issued by or on behalf
of the charterer as carrier, but not to Bills-of-Lading issued by or on behalf of the shipowner himself. In such cases the charterer is, according to his contract as carrier, responsible towards the sub-charterer or holder of the Bill-of-Lading, and his responsibility include, also the consequences of unseaworthiness and acts of the captain. His right to exonerate himself in the subcharter or Bill-of-Lading from this responsibility is limited in art. 31 sect. 2 of the Scandinavian draft, which
makes it a condition that the responsibility has been assumed by the shipowner.
The responsibility of the shipowner as to unseaworthiness depends upon his own contract with the char-
terer, and should not in our opinion be altered by the fact that the charterer has concluded subcharters or issued Bills-of-Lading on his own account. If the charterer has
not exonerated himself from the responsibility as to unseaworthiness, though it has been taken over by the shipowner, we consider them liable jointly and severally.
The responsibility of the shipowner as to acts of the captain should in the same way be determined by his own contract. It depends upon this contract whether there will be a distinction between commercial errors and nautical errors. The shipowner will not be liable in cases of demise, or when the captain is appointed by the
charterer. The question of lien on the ship in respect of claims arising from the Bill-of-Lading seems to have been
solved by art. 13 of the international convention upon mortgages and liens.
According to the above views, there seems to be no need of regulating the questions raised under point II, a) and b) by an international convention. Letters of guarantee as contemplated in art. 7 of the London draft are in our opinion illegal, but it is desirable to have it expressly provided. III.
TV.
As to Through-Bills-of-Lading we cannot accept
the provisions of art. 50 of the London draft, especially in so far as sect. 2 makes the last carrier responsible towards the receiver for loss and damage incurred to the goods while under the care of foregoing carriers. We refer to art. 31 sect. 2 of the Scandinavian draft and recommend the solution there given, according to which the through carrier is principally responsible for the whole transport and, where he has limited his responsibility to his own
line, is bound to show in whose custody the loss or damage has occurred. In cases of combined sea and land carriage the part of
it which is executed by land, must be regulated by the rules of land transport. V. As to distance freight we recommend for international acceptance the provisions of the Scandinavian draft; see articles 46-48 and 52, last section, cf. as to payment of full freight art. 44 and art. 51, sect. 3. The regulation of the distance freight in art. 46 sect. 2 cor-
I,
responds to the actual 'benefit of Lranvort gained by the charterer or owner of the goods, and makes it unnecessary to confer upon the carrier, as done by art. 32 of the London draft, a right to forward the goods' to the port of destination by another ship in cases where this is not authorised by the contract and perhaps contrary to the interests of the cargo owner.
1) The time limit of art. 3 sect. 6 of the convention upon bills-of-lading as to reelamations ought to be extended to all contracts of carriage by sea.
2) As to the prescription of actions arising out of contracts of carriage by sea. we think that the period of
one year should be limited to claims for loss of and damage to goods. while the period of prescription for all other claims of damages ought to be two years.
As to liens on goods we refer to art. 38 of the Scandinavian draft and to our maritime law, art. 276, which confers a lien to the follmving claims
Salvage and expenses incurred by release of the goods from enemies.
Contribution in general average and expenses to be apportioned according to similar rules (cfr. art. 161 sect. 2 suppressed in the nei,v- draft, and art. 218 sect. 2)
bottomry loans and claiins of cargo owners for goods sold to the benefit of other cargo owners. Claims arising out of contracts passed by the captain in his capacity as such on account of a cargo owner,
and claims of the captain for what he has himself advanced or undertaken to pay in order to defray expenses concerning the cargo..
4) Claims for freight and demurrage as well as compensation for further delay at the loading or discharging of the ship.
The claiins are satisfied in the order of the above numbers. Claims under the same number are treated on equal basis, those mentioned under nr. 1 and 2, however, only if they originate from the same case of necessity. Otherwise younger claims have priority over elder ones. VIII. a) An international rule for the purpose of solving conflicts of law in respect to affreightment is desirable.
b) In want of express or implied agreement we presume that the application of tl/e law of We ship's flag will, as a general rule, give the most reasonable results. e) From this rule certain exceptions ought, however, to be made, especially in favour of the law of the port of embarkation and the law- of the port of discharge as to place, time and manner of, respectively, the loading and the discharge and delivery of the goods. Oslo, January 27th, 1925. ANTON POULSSON.
SWEDEN STATEMENT DRAWN UP BY
THE SWEDISH MARITIME LAW ASSOCIATION
A./sa general in,ternational Code of Affreightmeni both desirable and practicable ? The Swedish Maritime Law Association drew up a reply to the above question in a Report which they presented to the Conference summoned by the Comité Maritime International and held in London in October 1922. That reply was to the effect that a general interin national codification of contracts of affreightment any case of their more essential clauses appeared to be exceedingly desirable. At the same time the Swedish Maritime Law Association drexv attention to the fact, that questions connected with contracts of affreightment are
so intimately dependent one upon another, that it does not seem appropriate to take up one or .another such question for individual treatment with a view to establishing an international convention respecting it alone. The opinion then pronounced on that point appears still to hold good.
As regards the feasibility of effecting an international codification of contracts of affreightment as a whole in the manner indicated, the large measure of success that has hitherto attended the labours of the Comité Maritime International would seem to be a propitious omen prognosticating a favourable result for such proceeding. In this connection the circumstance may be adduced that the three Scandinavian countries, Sweden, Norway and Denmark, succeeded upwards of thirty years ago in effecting a unification of the three countries' existing legislation in the department of maritime law not merely in that of contracts of affreightment and that at the present time there exists a draft of a new jo.int code of affreightment for all the Northern countries, in the draw-
ing up of which representatives of Finland also have participated. In the said draft the attempt has been made, while paying dije regard to the tenets of Continental and Anglo-Saxon maritime law, to secure a result that shall satisfy the demands of present-day maritime commerce and intercours,e.
If a general international settlement is desirable aud practicable. should that take the form of a Code of law or. of rules to be incorporated like the York-Antwerp Rules in commercial contracts? B.
It is manifest from the Draft Code of Affreightment prepared by the Scandinavian Governmental Maritime Law Committees and printed by the Comité Maritime International in their Bulletin Nr. 67 that the sections dealing with voyage-chartering and time-chartering could
81
be conceived of as forming a body of rules to. which reference might be made in charter parties and bills-oflading, and that an international settlement might be secured in that way on a voluntary basis, seeing that the enactments as regards voyage-chartering and time-chartering with the exCeption o' stipulation in c 31
-- are optional, i.e. subject to the decision of the contracting parties. In the bills-of-lading section, on the other hand, there are a number of provisions relative to form, competency,
third party's rights etc., which do not admit of being.replaced by agreements introduced into the contract drawn up by the parties. The said provisions are moreover intimately connected with the settlement of billsof-lading, which it is the aim and object of the in.ternational Draft-Convention on Bills-of-Lading the Hague
Rules) to bring about by the method of international legislation. Hence it follows that the procedure adopted with regard to the York-Antwerp Rttles does not lend itself in the case of bills-of-lading. It should however perhaps be pointed out with respect to the other sections of the Contract of Affreightment as well, that there being a greater degree of security for the provisions being uniformly- followed and obeyed if the method of international legislatiOn be adopted, the advantage accruing from so doing would seem quite to outweigh what has often been urged as a special merit in rules whose observance is a voluntary- matter, viz. that they may more readily be reviSed when occasion arises. 6
- 89,
In reference to the special questions put forward C. by the Contract of Affreightment Committee appointed by the Comité Maritime International, the Swedish Maritime Association begs to submit .the following Report drawn up by Mr. Algot Bagge.
I.Carrier's Obligation in Regard to Seaworthiness. Should the provisions of Article 3 Section I and Article 4 Section 1 of the International Convention upon Bills-of-Lading be extended to cover contracts of affreight-
ment which are not within the scope of the said Convention ?
Those provisions rest upon a correct principle in so far as they relieve the carrier of liability, provided he is able to prove that reasonable care has been taken in rendering the ves-el seaworthy. There does not seem to be any reason for restricting the application of the provisions to such cases of contract of affreightment only as the Draft Convention has in view.
Responsibility of the Shipowner towards SubCharterers and Holders of Bills-of-Lading. Shipowner..s liability io Sub-Charterers before any bill-of-lading. or supposing no bill-of-lading, has been drawn up. A.
The question does not bear upon the case when the shipowner as carrier is in direct contract relations with
the charterer, both being parties to the contract of affreightment. In the case in view the sub-charterer con-
tracts with the principal charterer or the hirer of the ship.
In this connection the following seems to be the principal cases deserving notice 1) The ship has been chartered for a particular voyage or for- a specified time and the charterer concludes contracts of affreighiment with various sub-charterers. In this case the shipowner is in no contractual relationship to the sub-charterers, who have, of course, only concluded agreements with the principal charterer. Hence there does not seem to be any essential reason for according a sub-charterer the right to make the shipowner also liable for any non-fulfilment of the provisions of the sub-contract of affreightment. There are, however, nevertheless certain exceptional cases when sub-charterers may be entitled to have recourse
to the shipowner or to the vessel, even before any, or if no, bill-of-lading has been drawn up. If intbe case of a voyage charter or a time charter the master of the vessel, on the strength of the authority his position gives him, in a foreign port has signed a subcontract of affreightment and the party with -whom the master has thus concluded an agreement has no reason
to suppose otherwise than that the contract has been concluded on the shipowner's behalf, then the latter should be deemed bound by the said contract. If a sub-contract of affreightment has been concluded
with the principal charterer or his agent, it may be queried whether the master of the vessel may not subsequently, by the act of accepting goods for transmission, .be deemed to have confirmed the sub-contract of affreightment at all events in so far as the terms of the sub-
contract coincide with those of the principal contract
81
and have consequently also bound of affreightmettt the shipowner, even before any, or if no, bill-of-lading has been drawn up.
Anide 2 Section 4 and Article 13 of the Draft-Convention on Maritime Liens and Mortgages lay it down as a general rule that even in the case of sub-chartering there shall be a lien on the vessel for indemnity for any loss or damage sustained by the cargo that was due to any -person in the employ of the vessel. The Draft-Con-
vention does not on ihe other hand prescribe any lien on the vessel by way of compensation for any failure to observe the terms of the sub-contract of affreightment before the good, have been received for transmission, or for any breach of the contract other than some fault in regard to the proper safeguarding of the goods. The above discussion leaves altogether out of account those cases in which. out of contract, the shipowner may nevertheless, in accordance with generally accepted rules, be held responsible for persons in his employ. The statements above given have only in view the rights of the shipper by virtue of contract. 2) The shipowner has hired out the 'vessel either with-
out a master and rrew or else with a master and crew, who-however, it is understood, are to he looked upon as being in the service of the hirer of the vessel. The shipowner in that case is not a carrier. When the hirer of the ship lets it out on a charter no case of subchartering. arises. The master of the ship is not the servant of the shipowner and consequently the shipowner as a matter of principle is not responsible for any action of hiS.
- 85 --
The vessel, however, still remains the property of the shipowner, a fact which is patent from the ship's papers and the shipping register. Hence., in the case mentioned
above of the hirer's master, by virtue of the authority given him by his position, having concluded a contract of affreightment with a person who has no reason to assume otherwise than that the contract has been conclUded on the shipowner's behalf, the question may arise as to whether tbe shipowner ought not to be held liable
to a certain extent for any damage arising in the event of the contract not being duly fulfilled. Especially in the case of an agreement intermediate between .a hiring and a time-chartering, when for instance the shipowner may have stipulated for his retention of the right to dismiss and to appoint the master of the vessel, although in all
other particulars the other party to the contract be in full and responsible charge of the proceedings, it would
seem to be doubtful whether there ought not to be a possibility of making the shipowner liable for an indemnity in the case in.dicated above. Article 2 Section 4 and Article 13 of the Draft-Convention relating to Maritime Liens and Mortgages give
the same general rules with respect to contracts of affreightment concluded by a hirer of a vessel as in the case of a sub-contract, viz, that there is a lien on the ship for compensation for loss of, or injury to, the cargo, if occasioned by some fault committed by a person in the employ of the ship. The Draft-Convention does not pres-
cribe any lien on the ship as a compensation for any breach of the contract previous to the goods having been received for transport, or for any breach of the
- 86 -
contract other than faults in regard to the proper safeguarding of the goods.
The Shipowner's Liability when Bills-of-Lading have been issued. B.
The liability resting upon the shipowner by reason,of the principal charterer's or the hirer's contract of affreightment with shipper has been dealt with under A. In this place there is only in view such further liability on the shipowner as arises from the issuing of bills-oflading respecting goods to be freighted as per a contract to which the shipowner is not a party. The following may be taken to be the principal cases deserving of notice I) The ship has been chartered on a voyage or a and the charterer proceeds to conclude timecharter agreements for the freighting of other people's goods. a) The bills-of-lading are issued by the master of the vessel. Such bills-of-lading are deemed to have been issued
on the shipow-ner's behalf, although he is not a party to sub-contract of affreightment, and the shipowner has been thereby invested with liabilitv in respect to the said billsof-la ding.
If the bills-of-lading involve the shipowner in furtherreaching obligations than the principal contract of affreightment warrants, the shipowner is notwithstanding bound in.respect tó the holder of the bill-of-lading by the tenor of the same. , at all events if the holder has icted bona fide. '''Article 2 Section 6 and Article 13 of the Draft-Con-
- 87 vention relating to Maritime Liens and Mortgages stipul-
ate that in the case of sub-contracting a lien shall he on the vessel for claims arising out of bills-of-lading. b) The bills-of-lading are issued by the charterer or his agent (e.g. in time-chartering). Inasmuch as the competence of the charterer or his agent to issue bills-of-lading does not accrue to them
by virtue of any office they hold, as is the case with the authority possessed by the master of the ship, but is based upon ami authorization accorded to them by the shipowner or the master of the ship, it follows that whoever makes appeal to such authorization must furnish a confirmation of its authenticity. If a charterer or his agent issues bills-of-lading, e.g. in time-chartering.
that may as a rule be considered to be done on the strength of an authorization, either explicit or implicit. on the part of the shipowner or the master of the ship. In that case the same rule holds good as under a). If the bills-of-lading have been issued by a person who is thus duly empowered to issue such bills with legal effect, a lien arises on the vessel for claims based upon
the bills-of-lading as per the Draft-Convention relating to Maritime Liens and Mortgages.
2) The shipowner has hired out the vessel either without a master and crew or else with a master and crew who, however, it is understood, are to be looked upon as being in the service of the hirer. The shipowner is not a carrier. The master of the ship is not the shipowner's servant. The master of the ship issues bills-of-
lading on behalf of the hirer and not on that of the shipowner.
- 88 -
As far as the shipowner is concerned no personal liability probably could be based upon such bills-of-lading,
unless possibly in a case corresponding to the special one mentioned under A. 2. Article 2 Section 6 and Article 13 of the Draft-Convention relating to Maritime Liens and Mortgages also prescribe a lien on the ship for claims based on bills-oflading, when on the ship being liired out the bills-oflading are issued by the birer or by the master of the ship on his behalf. Answers to Questions II a) 1-3, (au! b) 1, 3 and 4 may be seen in what has been stated above under A) and B).
In regard to bis relations to sub-charterers and holders of bills-of-lading the shipowner's liability for the seaworthiness of te vessel is only of interest in the event of deficient seaworthiness having occasioned loss of or damage to the goods carried, or given rise to some other breach of the sub-contract of affreightment. There does not appear to be any reason, with respect to injury arising from deficient seaworthiness_ to make any distinction ln the liability towards the cargo-owner of the carrier on the one hand and the shipoi,vner on the other, beyond what follows from the statements above under A) and B). It being a fact, however, that the rendering of the ship seaworthy as respects its capability of keeping the sea is a matter of public order, there may possibly, from the point of view of the common law of the land, be a certain liability for the shipowner, irrespective of any contract of affreightment, by reason of his position as the owner of the ship.
- 89 -
Ansiver to Question 11 b) 2. The shipowner's liability,
either in respect to his whole property or only to the ship, should in certain cases, as above pointed out, be the same as the carrier's, although the shipowner be not a party to the contract. The carrier-s liability is defined in the Draft-Corivention respecting Bills-of-Lading (The Hague Rules). In cases where liability devolves upon a
shipowner there does not appear to be any reason to fix any other rules as to the nature of such liability for
a shipowner who is not a party to the contract of affreightment than those laid down in the said Convention for a shipowner who in relation to the cargoowner is the carrier party. Hence the same terms should be used as in the Draft-Convention respecting Bills-of-
Lading and new rules on the basis of « fautes nautiques » and « fautes commerciales » should not be introduced.
At the close of Question II a) the following query is raised : If the responsibility of the shipowner should be preserved, should it be a joint and several liability or a liability in default on the part of the carrier ? This query bears reference in the first place to d.eficiency as regards seaworthiness but may be taken as having a wider purview. In those cases in which the shipowner is to be held
personally liable in spite of not being a contracting party, it would seem that the liability devolving on the principal charterer who has contracted with the cargoowner and that devolving on the shipowner are to be deemed joint and several. If the shipowner's liability is restricted to the establishing of a lien on the ship for
- 90 the cargo-owner's claim, the sub-charterer or the holder of bills-of-lading should be entitled to apply for compensation to the ship direct on the strength of the right
of lien, or personally to the principal charterer who has entered into the contract. The shipowner, however, should in any case possess the right of recourse as against the lastnamed, provided the shipowner as the principal carrier be not invesed with carrier's liability as against the principal charterer or in other case be liable for any faults or acts of negligence committed by the master of
the vessel or the crew, supposing them to be in his service.
III
Letters of Guarantee.
Would it be wise to forbid the issue of letters of guarantee or indemnity as, for example, in the terms of Article 7 of the Draft-Treaty of London ? The practice was condemned by a resolution of the International Shipping Conference (May 1924). According to the terms of the Draft-Convention res-
pecting Bills-of-Lnding the carrier shall state the apparent condition and nature of the goods. The stipulation is in the interest not only of the shipper but above all in that of the consig,nee. It is a matter of course that, even N"V hen the master of the ship is not guilty of so culpable an act as issuing a clean bill-of-lading in spite of its'being clear to him that the goods are in a damaged condition, the present practice of giving « letters' of
guarantee » is calculated to impair the master's sense of responsibility towards the consignee in noting « apparent order 'and. condition ». An awkwardness of a
- 91 -
somewhat similar character is already present, one may
say, in the stipulation in the Draft-Convention upon Bills-of-Lading that says that the shipper shall guarantee the accuracy of the statements he has giVen. It does not seem appropriate that the applicability of this rule .should be extended by letters of guarantee to the « ap-
parent order and condition », which is to be stated by the carrier independent of any information afforded by the shipper. Hence Question III should be answered in the affirmative.
IV. -- Trough-Bill-of-Lading. 1) Ought the provisions of Article 50 in the London Draft-Treaty to be adopted ? In Section 2 of Article 50 the last words « or the intermediate carrier » should be understood to mean « or the intermediate carrier whose liability has already been established ». The provision laid down in Article 50 Section 1 of the London Draft-Treaty can be approved, provided it only has in view a settlement of liability as between -
carriers.
The fact is that unless a proviso to the contrary has been inserted in the through-bill-of-lading, the consignee
is to be deemed entitled to apply to the issuer of the through-bill-of-lading for the payment of his indemnity,
even in cases where the damage to the goods has not ensiled while the goods were in the custody of the said iSsuer of the through-bill-of-lading. The latter Will then settle the consignee's indemnity claim but will have the right of recourse to the particular one of the other Car-
riers who was actually liable in respect to the loss or damage in question. It is difficult for the consignee to determine at what juncture the damage actually took place. If the first carrier for instance were entitled to exculpate himself from any responsibility towards thconsignee by proving that the damage did not ensue while the goods were in his custody, the consignee might
be put to serious law-court expenses and loss of time. It would, of course. as a rule be the most convenient arrangement for the consignee,if he were to be empowered to hold the last carrier of the goods liable for the carriage
as a whole. Against the adoption of such an arrangement there is however to be urged the possibility of the last carrier being perhaps a small shipping-firm- which might find a difficulty in settling a claim for compensation respecting the carriage of the goods as a whole. If, however, a regular through transit has been organized on a basis of mutual contracts between the various carrying-firms as regards even the settlement of indemnity charges, the system of holding the last carrier liable for any damage that may have occurred during the whole transit of the goods would seem to be the most appropriate one. It seems however to be hazardous to lay down in a Code a general rule as regards this point.
The method of partition of freight loss and
costs
in consequence of subsequent loss of the goods » that is proposed in Article 50 Section 3, would only appear to
be reasonable on the supposition that it has not been established that the loss of the goods has been caused through some fault or negligence, for which the particular carrier is responsible.
2) How are the provisions of the Draft-Convention. respecting Bills-of-Lading likely to operate on throughbills-of-lading, especially when there is a different maximum liability- in respect of sea and land carriage ? Inasmuch as the provisions of the Draft-Convention
respecting Bills-of-Lading are not applicable to land transport, exemption from the obligations of the shipowner will hold good as regards that, just as it does in respect to the time preceding the shipping of the goods and to that subsequent 10 their hving been discharged from the ship. It may be more difficult to determine how the DraftConvention respecting Bills-of-Lading will operate on through-bills-of-lading as respects carriage to be effected at sea by different shipo-wners. The opinion generally held would appear to be that, if shipowner Nr. 1 issues a through-bill-of-lading, acknowledging that the goods have been received in New York to be conveyed to Gothenburg, and the assumption is that the goods are to be conveyed from New.York to Hamburg on the vessel of the issuer of the bills-of-lading and from Hamburg to Gothenburg on the vessel.of some other shipowner, then shipowner-carrier Nr. 1, in spite of the fact that he has pledged himself by the bills-of-
lading to deliver the goods in Gothenburg, is nevertheless entitled to stipulate exemption from liability for the goods as against the holder of the bills-of-lading while the goods are in the custody of .shipowner-carrier Nr. 2. Consequently if such a stipulation be made and damage lo the goods be proved to have been iricurred during the
last-mentioned period of time, the holder of the bills-
of-lading will have no other recourse than to shipownercarrier Nr. 2. V.
Distance Freight.
I) Is it possible to regulate distance freight by an international convention ?
When a consignment of goods does not arrive at its destination, the question arises whether no freight, or distance 'freight, or the whole freight is to be paid and also the question whether an indemnity is to be paid. The decision as to which of these is to be chosen in any one of various cases is intimately bound tip with the conception of the contract of affreightment as a whole. The question of distance freight is consequently one bearing upon the most essential problems connected" with the contract of affreightment and hardly lends itself to isolated treatment. 2) If it is possible to regulate the question of distance
freight, ought the principles of the Draft-Treaty of London to be maintained (Articles 25.34)? When the appropriateness of distance freight was under discussion before. at a date considerably before the out-
break of the war. the arguments seem to have been based chiefly upon a distance freig,ht to be fixed as that
proportion of the total freight which is identical with the proportion that the distance .actually traversed by the goods bears to the whole voyage contracted for. That a distance freight determined on that basis should
have given rise to hesitation and doubt is very natural. Distance freight ought not, however, to be determined in that way. It ought to be fixed as that part of the freight
- 95 --
contracted for that remains when the charges have been
deducted that may reasonably be expected to arise if the goods are to be carried forward to the port of destination. A settlement of distance freight on those lines rests in
a way on the same principle as the provision in Article 32 Section 2 of the London Draft-Treaty, but the cargoowner has to decide whether the goods are to be forwarded to their destination or not, and, if he desires to have them so forwarded, to make a special agreement on his OWIl account with a new carrier.
VI. -- Time Limits and Prescriptions Ought not Article 5 Section 3 of the International. Draft-Convention upon Bills-of-Lading to be adopted in respect of all actions for loss of, or damage to, goods and ought not this rule to be preferred to the rule contained in Article 47 of the Draft-Treaty of London ? Ought the period of limitation of actions arising out of carriage by sea to be one year (Draft-Convention upon Bills-of-Lading) or two years. tArticle 48 of the Draft-Treaty of London), or is there ground for making a distinction between the various kinds of action ? If the Draft-Convention -upon Bills-of-Lading be approved there is no reason for not letting its provisions respecting this question be applicable in other cases not inclUded in it. VII.
Liens on Giods.
1) What are the liens upon goods which the captain ought to have for payment of freight?
-t
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What liens should there also be upon goods in respect of demurrage, contribution in general average, salvage, or for expenses in preserving the goods ? What priority is it possible to make between these different liens ? A lien on the goods ought to be established to meet the following claims compensation and for general average for salvage contribution; claims based ou engagements entered into by the 'master of the ship in his capacity as such for the necessary preservation of the cargo; a claim lodged by a cargo-
owner in respect to goods that have been sold in the course of the voyage for the benefit of another cargoowner; the claim of the master of the vessel for reimbursement in respect to any sum he may have advanced
for the necessary preservation of the cargo, or to any sum he may have been obliged on the strength of his private engagement to disburse for the said purpose; a claim on the consignee for freight and for compensation for days of demurrage or other delay in loading or discharging.
The claims mentioned alum e should be met by due payment in the order in which they are enumerated. Claims embraced under the same figure should be treated as ranking equal in respect to priority of payment. That only to hold-good, however, in respect to the claims given
under 1 and 2, in case they are traceable to the same case of emergency; otherwise any claim that has accrued later than another within the same group of such claims to have priority to an earlier Claim.
If goods, standing security for any claim, should be discharged at the disposal of the charterer or the consignee, or if such goods be sold during the voyage for the exigencies of the vessel or the cargo, the lien on the goods is to be regarded as terminated. If such goods are placed at the disposal of the charterer or the consignee without the consent of the creditor, the shipowner should be held responsible for the payment of the claim, though not at a sum exceeding the value of the goods at the time of discharge. If the cargo-owner is entitled to compensation for goods that have been lost or damaged, or if goods have been sold during the voyage for the exigencies of the ship or for the benefit of some other cargo-owner, the creditors who have a lien on the goods should be entitled to the same right of lien on the compensation due to the cargo-owner, or to the proceeds of the said sale, until the amount of the
cargo-owner's claim shall have been paid over to him.
VIII. The Law applicable to Contracts of Carriage. Solution of Conflicts of Law. If no complete international unification of the rules governing the contract of affreightment can be arrived at, may it not be possible to frame an international rule for the purpose of solving conflicts of law in determining the law applicable to any given contract ?
That question can be unhesitatingly answered in the affirmative. Should such law be : The law of the ship's flag ?
The law of the port of embarkation ? 7
98
The law of the port of discharge ? The lex loci contractus ? e) Would it be possible to adopt a single rule to apply to all matters of conflict, or would it be more suitable to make distinctions between different parts of the contract of carriage ?
It would seem as though a distinciion should here be drawn between two principal sets of rules I. Rules for the cases in which the parties enjoy liberty of contract.
Rules respecting firstly a certain prescribed form regarding a contract of affreightment, secondly such pro-
visions as have been rendered imperative by due consideration being paid to certain interests of the community
or by some cause, and thirdly such provisions as bear upon a third party's rights and consequently are excluded from the scope of the contracting parties' own decision..
I. Rules that are intended to decide supplementarily the mutual legal relationship of the parties, provided that that has not been done in the terms of the contract or
that the intention of the parties is not otherwise to be discovered.
The basis to go upon in this case seems in the first place
to be, that the supplementary provisions shall corres. pond to the result that it may be supposed the parties themselves would have arrived at, if they had taken the matter up for discussion. Now, in laying down rules that are supposed to represent the intentions of the parties, though they may be overthrown by its being shown that the parties intended something else, it seems requisiie to take as a starting-point what, from an objective point
of view on comparing the relative interests of the two parties in the case in question, may be considered to be reasonable. Such a balancing one against another of the respective
interests ought, as regards the carrier, to insure that his legal relationship to all the cargo-owners shall be judged as far as possible on the basis of one and the same legal code.
On the other hand it is a matter of great importance to the cargo-owner that the code oí law in force at the port of destination should be applicable in respect to everything connected with the proceedings to be taken at that spot.
Due consideration must of course also be paid to the circumstances and customs prevailing at the place where certain of the necessary operations are carried out, e.g. loading, discharging etc., and that will entail the law in force at that place being supplementarily applied with
respect to such operations and to anything connected therewith.
Finally the question as to what code of law is to be supplementarily brought to bear should be rendered as independent as possible of casual and fluctuating circum-
stances and should be made as readily determinable as possible.
With these points of view in mind the following suggested provisions may be adduced 1) The obligations on the parties and their respective
rights in regard to place and time of loading and to meLhods of loa* ding, to be determined in accordance with the law in force at the port of loading.
- 100
2) The -obligations on the parties and their respective
rights in regard to place and time of discharging and methods of discharging, to the delivery or storing of the goods, to time limits for claims lodged in respect to the goods delivered and the method of payment, especially as regards exchange calculations, to be determinated in accordance with the law in force at the port of discharge mentioned in the contract or fixed in accordance with the terms of the contract. If the port of destination has not been fixed at the juncture when ship and cargo part company, by reason for instance of alternative ports of destination or (( port as per subsequent order )) having been agreed upon, the provision contained in 3) should hold good.
(3) Any other legal question arising out of the terms of the contract of affreightment to be subject to the law of the flag. II. Rules respecting the demand for a specified form
regarding the contract of affreightment; provisions that are withdrawn from the deciding power of the parties as having in view the protection of the financially weaker party, the maintenance of public order, or the safeguarding of some other interest of the community or out of deference to the rights of some third party. I) Demands for a prescribed form for a contract of affreightment.
In this case the rule should hold good that locus regit actum. The rule should however be to a certain extent optional. If the legal code by which the contract is otherwise to be judged does not prescribe a definite form, the contract ought to be pronounced valid even though the
form prescribed by the lex loci actus have not been observed. The prescribed form should only be obligatory if it is required by both the legal codes in question. 2) Provisions that are outside the determining-power
of the parties as having in view the protection of the financially weaker party., the maintenance of public order,
or the safeguarding of some other interest of the community.
a) Compulsory provisions, implying that an agreement of a contrary sense is a nullity. If a negligence clause is a nullity according to, the lex loci contractus, the clause should not be valid for instance at the port of discharge. even if that port be situated in a country where such a negligence clause is valid. On the
other hand, if the negligence clause is valid according to the lex loci contracius. it should also hold good in another country where the law would treat as a nullity any agreement with respect to a negligence clause if entered into in that country. If, however, a negligence clause, which for instance is valid according to the lex loci contractus, should be deemed in another country where appeal is made to it to be at such a variance with public order that it is visited with a penalty, it will be a nullity in the last mentioned country in spite of its being valid according to the /ex loci con tractus.
In respect to those cases where the lex loci contractus is authoritative an international settlement is requisite of the question as to when an instrument is of the nature to warrant its being regarded as a contract of affreightment, and also of the question as to the place where a
102
contract of affreightment is to be considered as having been drawn up when it has been finally agreed to by telegram or by letter. It would, it is true, be exceedingly welcome if an international agreement could be arrived at, laying down in what cases a contract of affreightment is to be deemed
null and void by reason of its being at variance with public order or some other interest of the community. It would however possibly be a difficult matter to establish such an agreement owing to the variety of opinion held in regard to the question in the different countries concerned.
b) Provisions withdrawn from the decision of the parties out of consideration to a third party. A holder of a bill-of-lading, who is neither the carrier nor the shipper, is not bound as regards the applicability of some particular code of law by an agreement between the parties to the contract of affreightment, unless the existence of such agreement is evident from the bill-oflading. Thus for instance he is not bound by a proviso in the charter-partv as to the applicability of a particular code, unless the bill-of-lading embodies a reference to the charter party. The general rules suggested for adoption under 1), for cases when there exists no agreement between the
parties nor any other possibility of discovering their intentions, would seem to be appropriate also to the case in question here. Stockholm, December 23rd, 1924. for the Swedish Association of Maritime Law, ELIEL LÖFGREN.
DENMARK DANISH ASSOCIATION OF IVIARITIME LAW REPORT BY
Mr. J. KOCH
In reply to the questions put by the Paris Sub-Committee, the Danish Association of Maritime Law begs to submit the following remarks
We think it would be very desirable to have a complete international Code of law on Affreightment. If it should be found unpracticable to proceed with the preparing of a complete Code, we are of opinion that an attempt should be made to secure greater international uniformity of law by framing a draft-convention on particular points of importance, and that the points raised by the Paris Sub-Committee might usefully form the subject of such a draft. We now proceed to deal with those points one by one.
I. -- Carrier's Obligation in Regard to Seaworthiness. Should the provisions of Articles 3, Sect. 1 and 4, Sect. 1, of the International Convention upon bills-oflading be extended to cover contracts of affreightment which are not within the scope of the said convention ?
ANSWER :
We think it necessary to deal separately with ordinary voyage charter, time charter, not amounting to demise, and time charter amounting to demise. In all cases it is to be understood that there should be no interference with freedom of contract as fas as charter parties are concerned. The question is only : What is the law that regulates the relations between the parties, where there is no express provision in the charter ?
Voyage charter.
We suggest that not only Artices 3, Sect. 1 and 4, Sect. 1 but also Articles 3, 'Sect. 2 and 4, Sect. 2-6 of the
International Convention be extended to cover voyage charters. Our reasons are as follows : Usually- bills-oflading are issued, though the ship is under charter. Then the said provisions of the Internatinnal Convention will regulate the relations betNveen the carrier and the holder of a bill-of-lading, but the-terms of the charterparty will still regulate the relations between the carrier and the charterer. It would now- seem to be very unpractical, if the shipowner's liability for lo ss of or. damage to cargo under the eharterparty- were different from his liability under the bill-of-lading. If the obligation imposed upon the shipowner by the charterparty were greater than that imposed upon him by the bill-of-lading, the result would be that the charterer could claim- damages from the shipowner, even if the holder of the bill-of-1ading could
not claim anything. And if the shipowner's obligation under the bill-of-lading were'greater than his obligation
1115
under the charterparty, the shipowner would be entitled
to indemnity from the charterer, when he has lo pay damages to the holder of the bill-of-lading. In both cases the result would not seem to be practical and could not be presumed to comply with the meaning of the parties to the charterparty.
Time charter, not demise. We think the shipowner should be bound to exercise due diligence in making, the ship seaworthy at the beginning of the charter and, where several voyages are included in the charter, at 1/le beginning of each particular voyage.
Our reasons are as follows : In most cases bills-oflading for each particular voyage are issued by the master on behalf of the shipowner. Then. according to the International Conymtion, the shipowner will be liable towards the holder of a bill-of-lading, if he has failed in exercising due diligence to make the ship seaworthy at the beginning of that particular -voyage. But it cannot be
presumed to be the meaning of the parties to the time charter that an action for indemnity should lie whenever the shipowner has to pay damages to a holder of a bill-of-lading.
We further sug-gest that the provisions of Articles 3, Sect. 2 and 4, Sect. 2-6 should apply mutatis mutandis.
Time charter amounting to demise. Where a time charter provides the master to be appointed by the charterer or, at any event, to be considered
- 106 -
as the servant of the charterer, the shipowner should excercise due diligence in making the ship seaworthy at the beginning of the charter, but having discharged this
duty in this regard he should not incur any further liability towards the charterer. .
Responsibility of the Shipowner
towards Bill-of-lading Holders or Sub charters a) As to the question of unseaworthiness of the ship, the sub-committee has examined the three following idc:
1) The shipowner incurs no further responsibility when he has once discharged his initial duty in regard to seaworthiness at the commencement of the charter. The shipowner is responsible to holders of bills-of-
lading and sub-charterers in respect of seaworthiness understood in the strict sense of inability to keep the sea. The shipowner is responsible in every case in which the charterer is himself responsible to the holder of the bill-of-lading.
-Which of these three views should be adopted ? If the
responsibility of the shipowner should be preserved, should it be a joint and several liability or a liability in default on the part of the carrier ? b) As to the acts of the captain Is the shipoNsner responsible for these acts and to what extent ? Should there be a distinction between commercial errors and nautical errors ? Should there be a distinction according to whether the captain is appointed by the owner or by the charterer, and whether or not the charter amounts to a demise ?
- 407 -
4) If distinctions are to be made, how should the provisions of the International Convention be applic as regards the lien upon the ship in respect of claim arising out of the bill-of-lading ? ANSWER
As to the responsibility of the shipowner. The following distinctions should be made A contract between charterer and subcharterer (sub. charter, bill-of-lading issued by or on behalf of the char-
terer) should not give rise to any contractual responsibility of the shipowner towards the subcharterer, neither in respect of unseaworthines nor in respect of the acts of the captain. Where in accordance with his authority the master has issued bills-of-lading on behalf of the shipowner, the responsibility of the latter will in all respects (seaworthiness, acts of captain) be regulated by the provisions of the International Convention upon bills-of-lading. Where the master has issued bills-of-lading on behalf of the shipowner, though he was not authorised to do so, distinction should be made between the following cases: The master is the servant of the shipowner. Then the shipowner should be liable in accordance with the provisions of the International Convention, in so far as the third party (subcharterer, indorsee) is ignorant of the absence of authority. The master is the servant of the charterer (demise). Then the shipowner should not be liable under a billof-lading issued by the master.
As to the responsibility of the Charterer. The responsibility of the charterer towards the subcharterer with whom he has entered into a freight agreement should be preserved, whether or not the shipowner has incurred liability towards the subcharterer.
The responsibility of the charterer towards the subcharterer should be limited in the same cases in which the liability of a shipowner would be limited according to the provisions of the International Convention upon the limitation of shipowners' liability. Where both shipowner and charterer are liable towards subcharterer, there should be a joint and several liability.
As to liens upon the ship. There should be the same liens upon the ship in respect of bill-of-lading claims, whether or not there is a demise of the ship.
Letters of Guarantee. Would it be wise to forbid the issue of letters of guarantee or indemnity as, for example, in the terms of Article 7 of the draft-treaty of London ? ANSWER :
We are of opinion that letters of guarantee should be forbidden.
Through Bill-of-Lading. I) Ought the provisions of Article 50 of the drafttreaty of London to be adopted ?
2) How are the provisions of the International Con-
-109 vention of 1924 on bills-of-lading likely to operate on through bills-of-lading, especially when there is a different maximum liability in respect of sea and land carriage ? ANSWER :
A) As to the relations between the consignees
and the various carriers. a) Liability of the contracting carrier. We think it follows from general legal principles that the contracting carrier is responsible for the whole voyage if he has not limited his responsibility to his own part of
the voyage by inserting a clause in the through bill-oflading. We do not think there are sufficient reasons for altering
this rule. The contracting charterer undertakes to perform the whole voyage, the whole freight is due to him, so that he earns the difference between the through-billof-lading freight and the freight contracted between him and the other carriers. It may be doubtful how the International Convention on bills-of-lading will operate in the cases we are considering here, and we think it would be very useful to have that made clear. We think the Convention will only cover such part of the seacarriage that is performed by
the contracting carrier himself. But we think the contracting carrier should also be answerable in accordance with the bill-of-lading Convention for sea carriage performed by another charterer, if the latter has not issued bills-of-lading or other document of title so as to become liable under the said Convention.
Where there are sereral contracting carriers.
Where the through bill-of-lading has been issued by or on behalf of more than one carrier, it follows from general principles that those carriers as joint contractors are jointly liable for the whole voyage, if they have not limited their liability by means of a clause in the through bill-of-lading.
We do not think there are sufficient reasons for altering this rule.
Whether or not one carrier has had authority to sign the through-bill-of-lading on behalf of other carriers and has done so, is a question of fact that should not be dealt with in an International Convention, but which should be left for the Courts to decide according to the circumstances of each particular case. In this regard it may be of importance, whether there is an agreement between the carriers as to through carriage and the apportionment of through freights.
Liability of a carrier who is not a party to the through-bill-of-lading.
According to existing rules a carrier who is not a party to the through bill-of-lading cannot be sued on that document. But he could be sued upon the agreement with a preceding carrier by which he has undertaken to perform his part of the whole voyage. It follows that his responsibility would be only for his own part of the voyage. As far as intermediate carriers are concerned, we think it clear that the existing rules should not be altered.
As to the last carrier the question arises whether by
special provision he should be made answerable for the whole voyage, and if that question be answered in the
affirmative, the further question arises whether his liability should be in accordance with the provisions of the International Convention on bills-of-lading.
Though we are fully aware of the strong practical reasons for making the last carrier responsible for the whole transport, we think it rather hard upon him to forbid him to limit his responsibility to his own part of the voyage. On the other hand, the practical value of introducing a not obligatory rule would probably be very small, as experience shows that carriers almost always expressly limit their liability in the said manner. At any rate, we think it perfectly clear that the last carrier should not be made responsible for the whole voyage, where he has been ignorant of the goods being carried under a through-bill-of-lading. B)
As to the relations between the various carriers.
We agree to Art. 50 paragraph 3 of the draft-treaty of London.
V.
Distance Freight.
I) Is it possible to regulate the question of distance freight by international convention ? 2) If it is possible to regulate this question, ought the principles of the draft treaty of London to be maintained (Articles 25 to 34)?
ANSWER :
Calculation of distance freight. As regards calculation of distance freight we suggest that the following ideas be examined I) freight shall be paid pro rata itin,eris; on principle, freight shall be paid pro rata itin,eris. but with regard to the duration and the particular risks and costs of the performed portion of the voyage as compared with the whole voyage: from the contracted freight shall be deducted for the remaining portion of the and costs freight voyage;
the deduction to be made from the contracted freight shall be calculated by applying to the-contracted freight the percentage resulting from a comparison of the freight for the remaining portion of the voyage with i.e. at the moment when the voyage what would now be the freight for the whole voyage. (If is broken up
f be the contracted freight, fo and fn the freight rates for the remaining portion of the voyage and the whole voyage at the moment the voy-age is broken up, the distance freight should be : f HThe third view has been adopted in the Scandinavian
draft code of affreightment art. 46. We are of opinion jections to the first and second view. The only objection that this view would not give rise to the wellknown obwe can imagine would, be that, according to this view, the amount of distance freight would depend more than it ought to do upon the variations of the freight market after the contract has been made. If that objection be raised,
- 113 we would like to have the fourth view examined. As will easily be seen, it only differs from the third view when in and f are different, i.e. when there is a rise or fall of freights after the contract has been made.
When payable ? In our opinion distance freight should be payable in all cases where the ship is lost or where there is a delay on the part of the carrier such as to give the cargo owner a right to repudiate the contract after part of the carrying
voyage having been performed. It should not matter whether the delay is due to default on the part of the shipowner or not. Why should, for instance, a default deprive the shipowner of his right to distance freight, if no loss or damage to the cargo owner has resulted from it ? If there is a loss, however, an action for damages should be reserved.
It should be further examined when the cargo owner should be entitled to repudiate the contract on account of delay on the part of the carrier.
Articles 25 to 34 of the draft treaty of London. We think the principles of these articles should be maintained subject to the following reservations ART. 26, a.
Only distance freight should be payable in case the damaged condition of the goods is due to a delay on the part of the shipowner such as to give the cargo owner a right to repudiate the contract. 8
- 114 ART. 26, f.
No freight should be payable when the loss of the goods has to be made good in general average, but as express-
ly provided for in Rule XV of the York-Antwerp Rules the loss of freight should be made good in general average. ART. 27-28.
We suggest that the principles of these articles be further examined. ART. 30.
We disagree with the provision of § 1, according to which .a cargo owner should never have a right to repudiate the contract because of delay after departure, even if the delay is such as to frustrate the commercial adven-
ture. We suggest that the whole matter be further examined. ART. 32.
In the cases here mentioned the shipowner should be entitled to distance freight, but normally he should have neither the right nor the duty to carry the goods to the port of destination by another vessel.
VI.
Time Limits and Prescriptions.
1) Ought not Article 3, Sect. 6, of the International Convention upon bills-of-lading to be adopted in respect of all actions for loss or damageto goads, and ought not this rule to be preferred to the rule contained in Article 47 of the draft-treaty of London ?
- 115 2) Ought the period of limitation of actions out of carriage by sea to be one year (International Convention
of 1924) or two years (Article 48 of the draft-treaty of London), or is there ground for making a distinction between the various kinds of action ? ANSWER :
Yes.
a) In so far as actions for loss of or damage to cargo are concerned the period should be one year from delivery of the goods or from the date when the goods should have been delivered; b) in other cases the period should be one year from the time when the action would lie.
VII.
Liens on Goods.
What are the liens upon goods which the captain ought to have for payment of freight ? What liens should there also be upon the goods in respect of demurrage, contribution in general average, salvage, or for expenses in preserving the goods ? What priority is it possible to make between these different liens ? ANSWER :
There should be a possessory lien for freight payable on delivery of the goods. There should also be possessory liens for demur-
rage, damages by detention, contribution in general average, salvage, or for expenses in preserving the goods.
As against a bona fide holder for value of a bill-oflading there should be no lien for demurrage or for
- 116 .damages by detention at the port of loading, unless mention of the claim is made on the bill-of-lading. 3) The above mentioned liens should rank as follows: 1), the lien for salvage; the lien for general average contribution; the lien for expenses in preserving the goods;
the liens for freight, for demurrage and for damages by detention.
VIII. The Law applicable to Contracts of Carriage. Solution of Conflicts of Law. a) If no complete unification of the rules governing the contract of affreightment can be arrived at, may it not be possible to frame an international rule for the purpose of solving conflicts of law appli-cable to any given contract ?
b) Should such law be The law of the ship's flag ? The law of the port of embarkation ? The law.of the port of discharge ? Or the lex loci contractus ? c) Would it be possible to adopt a single rule to apply to all matters of conflict, or would it be more suitable to make distinctions between different parts of the contract of carriage ? ANSWER :
We doubt whether the International Maritime Committee should try to frame rules for the purpose of solving conflicts of law. We think it would be rather difficult to arrive at a satisfactory result and that, perhaps, it would
- 117 -
be better to proceed with preparing uniform rules on particular subjects of importance. At any rate, it seems clear that it would not be possible to adopt one single rule to apply to all matters of conflict.
Copenhagen, 13th February 1925.
pp. Danish Association for Maritime Law The President J. KocH.
ITALY ITALIAN ASSOCIATION OF MARITIME LAW REPORT BY
Dr FRANCESCO BERLINGIERI
Whether a general international Code is both desirable and practicable ?
If so, whether it should be a Code of law or a Code such as the York-Antwerp Rules Nvhich should be incorporated in commercial contracts ? If the answer to the first question is in the negative
whether an attempt should be made to secure greater international uniformity of law ny giving attention to particular subjects and framing a short draft-convention on those points ?
In that case might the following subjects usefully form the subject of such a draft
The Italian Association consider that it would be highly beneficial to the shipowning industry and to sea-
borne commerce if it were possible to adopt internationally a certain number of rules concerning affreightment; but the number thereof ought to be very limited
- 419 --
because the rules to be introduced ought to settle only a few principal questions, and more especially to solve such matters as are related to public order. As most of the international rules to be adopted must be of an imperative character, it might perhaps be necessary to discard the system followed in respect of the York
& Antwerp Rules, i. e. the method of incorporating the rules into contracts and commercial documents, and to make this matter the subject of an international Convention. 1.
Carrier's Obligation in regard to Seaworthiness. Should the provisions of Articles 3, Sect. 1 and 4, Sect.
1, of the International Convention upon bill-of-lading be extended to cover contracts of affreightment which are not within the scope of the said convention ? ***
The carrier's obligation to put the ship in a good condition of seaworthiness at the beginning of the voyage, is necessitated by reasons of public order. The carrier cannot free himself of such obligation, either in Bs/L or
in charter-parties. That obligation must not have the nature of a warranty; it merely will be limited to due diligence for making the ship seaworthy and for discovering its defects. That is the system followed by the International Convention on Bills-of-Lading. And such system represents a concession in favour of
the carrier, in regard to some legislations under which the carrier is liable for the defects of the ship which could not be discovered even when displaying the most strenuous diligence. The solution becomes more (1ifficult when the question
arises whether the carrier's obligation in regard to seaworthiness must be maintained even after the ship has sailed and for the whole duration of the voyage. This question is solved affirmatively by Art. III, par. 2 of the said Convention, providing that the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. This implies as a consequence that, if the ship becomes unseaworthy during the voyage, and if the carrier, although in condition to provide
for the necessary repairs, fails to do so, he will be personally liable towards the parties interested on the cargo. II.
Responsibility of the Shipowner towards Bill-of-Lading Holders or Sub-charterers.
a) As to the question, of unseamorthiness of the ship,
the sub-committee has examined the three following ideas
The shipowner incurs no further responsibility when he has once discharged his initial duty in regard to seaworthiness at ihe commencement- of the charter. The shipowner is responsible to holders of bills-oflading and sub-charterers in respect of unseaworthiness understood in the strict sense of inability to keep the sea..
- 121 -
3) The shipowner is responsible in every case in which the character himself is responsible to the holder of the bill-of-lading. Which of these three views should be adopted ? If the
responsibility of the shipowner should be preserved, should it be a joint and several liability or a liability in default on the part of the carrier ? b) As to the acts of the captain Is the shipowner responsible for these acts and to what extent ? Should there be a distinction between commercial errors and nautical errors ? Should there be a distinction according to whether the captain is appointed by the owner or by the charterer, and whether or not the charter amounts to a demise ?
If distinctions are to be made, how should the provisions of the International Convention be applied as regards the lien upon the ship in respect of claims arising out of the bills-of-lading ? ***
We are of the opinion that, from the three conceptions
set forth in the questionnaire, the last one should be adopted, according to which the shipowner is responsible in every case where the charterer himself is responsible to the holder of the B/L and to the sub-charterers. Since the seaworthiness of the ship is a question con-
nected with public policy, it is beyond doubt that the shipowner chartering out his ship, and the charterer,
must be held liable towards the B/L holders and subcharterers, the former as the owner of the ship, and the latter because he has undertaken the responsibility of the carriage of the goods.
And this liability of the shipowner and of the charterer can only be a joint and several liability. As regards the responsibility for the acts of the master towards the B/L holders and sub-charterers, here a distinction must be made between nautical errors and commercial errors, in accordance with the provisions adopted in the International Convention on Bills-of-Lading.
Every liability for the acts, negligence or default of the Captain, mariners, pilot or servants of the carrier, in the navigation or management of the ship, should be set aside, without distinction whether or not the carrier be the owner of the ship, or the time-charter or the voyagecharterer.
On the other hand, the carrier must be held liable for the commercial negligence of the master. If the carrier is a different persoa from the shipowner or managingowner, then only the former shall be responsible towards the holders of Bs/L and sub-charterers; but the liability of the shipowner shall hold good, under the International Convention on Maritime Mortgages and Liens, in so far as the holders of Bs/L and sub-charterers are entitled to enforce a lien on the ship. As to the query who is to be considered as carrier, towards the holders of Bs/L and sub-charterers, this is
- 12:3 -
a question of fact, the decision of which is to be left to the practice of the Courts.
Letters of guarantee. Would it be wise to forbid the issue of letters of gua-
rantee or indemnity as, for example, in the terms of Article 7 of the draft-treaty of London ? The practice was condemned by a resolution of the International Shipping Conference (May 1924). ***
The opinion of the Sub-Committee should be followed unreservedly, and we ought, to adopt art. 7 of the London draft : « Letters of indemnity or guarantee in consideration of which clean bills-of-lading are delivered in respect of goods which are damaged, are unlawful and shall not
form a basis for a judicial claim, notwithstanding any agreement to the contrary. » This sanction of unlawfulness is one of those which, owing to their imperative character, cannot be made the subject of any derogation; on the other hand, once it is adopted internationally, it cannot be prejudicial to the effects of competition between shipowners of the various countries.
We grant that the use of letters of indemnity may sometirnes serve to avoid the inconveniences resulting from reserves or other similar clauses which an overcautious master may insert in his B/L, even where there
is a trifling defect of packing or a shortage which, if there were no such clause in the B/L, would escape the
124
attention of the Consignee; but if we have to choose between such inconvenience and the enormous prejudice sustained by the commercial community owing Lo the fact that a B/L would not be in conformity with the true
state of things, it is beyond doubt that we must prefer the system whiCh does away with the latter source of prejudice.
Through-Bill-oLadiug. Ought the provisions of Article 50 of the drafttreaty of London to be adopted ? In Sect. 2 of Article 50, the last words, a or the intermediate carrier », should be understood to mean, o or IV.
the intermediate carrier whose liability has already been established ». How are the provisions of the International Convention of 1924 on bills-of-lading likely to operate on through-bills-of-lading, especially when there is a different maximum liability in respect of sea and land carriage ? ***
We are of opinion that article 50 of the London draft must be maintained, because it is in accordance with the requirements of goods carried under a through-bill-oflading.
There is no doubt, either, that to paragraph 2 of the said provision, there should be added the words suggested in the questionnaire. As the meaning and the practical object of this provi-
sion give it an imperative character, it seems to us that
the International Convention of 1924 on Bills-of-Lading can have no influence whatev-er 011 that provision, because
the method of carriage of goods under a through-bill-oflading implies a more extensive liability than that provided for under art. 5 of the said Convention. V.
Distance-Freight.
Is it possible to regulate the question of distance freight by international convention ? If it is possible to regulate this question, ought the principles of the draft treaty of London to be maintained (Articles 25 to 34) ? ***
It is very doubtful whether questions relating to distance-freight should be solved by way of an international Convention, because this, being a matter which does not
interest public order either directly or indirectly, is usually settled by the private agreement between the contracting parties. But if the system of an international regulation were admitted, then the principles of the London draft-treaty ought not to be put aside, either from the legal point of view, or from the standpoint of the interests of maritime commerce. VI
Time limits and prescriptions.
1) Ought not Article 5, Sect. 3, of the International Convention upon bills-of-lading to be adopted in respect of all actions for loss of, or damage to goods, and ought
not this rule to be preferred to the rule contained in Article of the draft-treaty of London ?
2) Ought the period of limitation of actions arising out of carriage by sea to be one year (International Convention of 1924) or two years (Article 48 of the draft-
treaty of London), or is there ground for making a distinction between the various kinds of action ? ***
There is no reason for not adopting, in the matter of affreightment, the rules which were adopted by the International Convention on Bills-of-Lading in regard to time-limits and prescription. VII
Liens on Goods.
What are the liens upon goods which the cap.ain ought to have for payment of freight ? What liens should there also be upon the goods in
respect of demurrage, contribution to general average, salvage, or for expenses in preserving the goods ? What priority is it possible to make between these different liens ? ***
As to liens on goods, the Italian Association considers
that a lien ought to be granted to claimants in the following order 1°) Judicial costs incurred for the common benefit of creditors in respect of conservatory measures or for acts of execution on the goods;
2°) customs dues burdening the goods at the place of discharge;
30) contribution to general average; 4') salvage expenses and remunerations;
- 127 -
5') Freight, half-freight and demurrage. These liens may be enforced as long as the goods are still in possession of the master, and within a fortnight after their discharge, and before they have passed into the possession of a bona fide third party. Claims enumerated under nr 3 and 4 are paid by preference, in case the price should not suffice, in proportion to their respective amount.
The lien subsists also on the amount cashed by the master in the case of a sale of goods effected in the course
of the voyage in the interest of the goods, or for the common safety of ship, freight and cargo. The'lien must extend to the contributions due to goods by way of general average and on the indemnities due by third parties owing to damage to, or loss of goods. VIII.
The law applicable to Contracts of carriage. Solution of Conflicts of law.
a) If no complete international unification of the rules governing the contract of affreightment can be arrived at, may it not be possible to frame an international rule for the purpose of solving conflicts of law in determining the law applicable to any given contract ? b) Should such law be The law of the ship's flag ? The law of the port of embarkation ? The law of the port of discharge ? Or the lex loci contractus ? c) Would it be possible to adopt a single rule to apply to all matters of conflict, or would it be more suitable to
- 128 make distinctions between different parts of the contract of carriage ? *
A conflict of law on the matter of contracts of affreight-
ment, only seldom occurs, as charter-parties generally stipulate' the law governing the disputes which may arise *between the parties when carrying out the contract. According to the principles which have been evolved by the practice of the Courts in all maritime countries, the law of the locus contractits should be followed on questions relating to the validity, the substance and the effects, excepting only questions concerning the loading and the discharge of the goods, which should be regulated in accordance with the law and custom at the respective ports. It is hardly necessary to add that normally the law of the flag should govern when all parties interested on the ship and its cargo are citizens of the same State.
For the Italian Association of Maritime Law, FRANCESCO BERLINGIERI,
Reporter.
FRANCE FRENCH ASSOCIATION OF MARITIME LAW REPORT BY
Mr JAMES PAUL GOVARE Advocate at the Paris Court of Appeal (I)
The French Association of Maritime Law had appointed
a Sub-Committee to deal with the report of the SubCommittee of the International Maritime Committee which met at Paris in October 1924. The Sub-Committee was requested to refer to the London draft-treaty ana to formulate such solutions as it would be advisable to transmit to the Permanent Bureau of the International Maritime Committee, in reply to the questionnaire framed by the Paris Sub-Committee. That Commission now proposes the following answers, which were adopted unanimously. QUESTION A.
-Whether a general international Code of affreightment is both desirable and practicable ? (1) The Sub-Committee, appointed to deal with this matter, included Mr. Georges Marais, Vice-president of the Association, as chairman; Mr. James Paul Govare, member of the Committee, reporter; Messrs Gervais, Lesueur, Leussier, Monière, Tourmente, Rondeau, de Rousiers and Verneaux, members. 9
- 130 ANSWER :
Such Code would assuredly be desirable. Maritime Commerce, indeed, is international; all efforts therefore should tend towards unification of the laws which govern it. Unfortunately, such scheme does not appear practicable at the present time. QUESTION B.
If so, whether it should be a Code of law or a Code such as the York-Antwerp Rules which should be incorporated in commercial contracts ? ANSWER :
The first question having been answered in the nega-
tive, a further reply to this question seems without object. QUESTION C.
If the answer to the first question is in the negative whether an attempt should be made to secure greater international uniformity of law by giving attention to particular subjects and framing a short draft-convention on those points ? ANSWER :
As it seem. s impossible to arrive shortly at a complete
draft of international law, it is preferable to settle the most important questions, in hopes that, in a not far distant future, such special provisions may be embodied into one general law.
131 QUESTION D.
In-that case might the following subjects usefully form the subject of such a draft ? ANSWER :
The following points might usefully form the subject of in international agreement. They are all equally interesting; therefore there is no reason for giving a preference to any of them. They are examined here in the same order as suggested in the questionnaire.
Carrier's obligation in regard to seaworthiness.
I.
QUESTION
Should the provisions of Articles 3, Sect. 1 and 4, Sect.
1, of the International Convention upon bills-of-lading be extended to cover contracts of affreightment which are not within the scope of the said concention ? ANSWER :
An answer in the affirmative appears as necessary. It moreover is the only reply in harmony with answer II above.
II.
Responsibility of the Shipowner towards (Bill-of-Lading holders or) Sub-charterers. NOTE:
The Association think that the words between parenthesis ought to be suppressed. This report has to Consider
132
only affreightment and sub-chartering, but not any obli-
gations of the carrier towards shippers and claimants under bills-of-lading, in respect of whom a Convention has already been prepared. QUESTION
As to the question of unseaworthiness of the ship, the sub-committee has exarnined the three following ideas
The shipowner incurs no further responsibility when he has once discharged his initial duty in regard to seaworthiness at the commencement of the charter. The shipowner is responsible to holderS of bills-oflading and sub-charterers in respect of unseaworthiness understood in the strict sense of inability to keep the sea. The shipowner is responsible in every case in which the charterer is himself responsible to the holder of the bill-of-lading. ANSWER
The shipowner must be held liable towards the charterers and sub-charterers in the case of unseaworthiness, construed_ in the strict sense that the ship is incapable of going to sea at the beginning of the affreightment. QUESTION :
If the responsibility of the shipowner would be pre. served, should it be a joint and several liability, or a liability in default on the part of the carrier ?
- 133 ANSWER
If, in fact, there is a close connection between the liability of the shipowner and that of the managing owner
who is carrier, there is nevertheless a distinction in most cases. From the legal point a view, they are indeed altogether different. The shipowner's liability is based
upon the circumstance that there is proved as against him a quasi-delictum; whereas the liability of the carrier is contractual and finds its origin in the contract of carriage, which is a matter foreign to the shipowner. These two actions therefore cannot be either joint and several; neither can they be subsidiary : they are in juxtaposition. QUESTIONS
As to the acts of the captain I) Is the shipowner responsible for these acts and to what extent ? Should there be a distinction between commercial errors and nautical errors ? Should there be a distinction according to whether the cap tain is appointed by the owner or by the charterer, and whether or not the charter amounts to a demise ? ANSWER :
A fundamental distinction is to be established according as the master has been appointed by the shipowner or by the carrier. If the master has not been appointed by the shipowner, the latter shall not be liable for the acts of the master.
- 13i If the master has been appointed by the shipowner, the latter may be held liable, but only in respect of commercial negligence. The exoneration for nautical negligence should be considered as absolute. QUESTION
4).How should the provisions of the International Con-
vention be applied as regards the lien upon the ship in respect of claims arising out of the bill-of-lading ? ANSWER :
The Association are of opinion that this question whose since it comes within great interest they acknowledge the scope of (( Liens and Mortgages », should be studied more closely at the forthcoMing Genoa Conference.
Letters of Guarantee. QUESTION
Would it be wise to forbid the issue of letters of gua-
rantee or indemnity as, for example, in the terms of Article 7 of the draft-treaty of London ? The practice was condemned by a resolution of the International Shipping Conference (May 1924). ANSWER :
The French Association consider the practice of issuing letters of guarantee or indemnity, is often censurable. In most cases, it is the avowal signed by the shipper, of the fact that he entrusts to the carrier goods in defective condition. This shipper hopes that, by avoiding the insertion of any clauses in the bill-of-lading, Such defect will pass
- 135 unnoticed by the consignee who will take delivery of the
goods and will pay after having lost every means of remedy. Yet, the letter of indemnity has not always a fraudulent
character; it happens sometimes that a master, when receiving a cargo to which he is not accustomed, may have a doubt as to the efficiency of the packing, whereas the shipper, who is dealing in such kind of goods, is quite certain of their being in good condition. In such case, and merely in order to avoid the delays of a survey, the shipper may give to the carrier a letter of guarantee, indemnifying him against any liability in the event of complaints on the part of the consignee.
This is only one example : many other instances may occur. But all these cases can be divided into two broad classes : either has the letter of guarantee been issued
for an unlawful purpose; or, such letter has been given for a honest reason. The Sub-Committee therefore are of opinion that the practice of issuing letters of guarantee must not be pro-
hibited in itself ; but that the fraudulent use of such letters should be prohibited. The Association further observe that the issue of letters of indemnity concerns the bills-of-lading rather than the charter-parties and that therefore this question ought not to be treated in this draft. 1V.
Through-Bills-of-Lading. QUESTIONS :
1) Ought the provisions of Article 50 of the drafttreaty of London to be adopted ?
-- 136 -
In Sect. 2 of Article 50, the last words, a or the intermediate carrier », should be understood to mean, a or the intermediate carrier whose liability has already been established ».
2) How are the provisions of the International Convention of 1924 on bills-of-lading likely to operate on through bills-of-lading, especially when there is a different maximum liability in respect of sea and land carriage ? ANSWER :
The Association are of opinion that the through-billof-lading should be made the subject of very elaborate preliminary studies. Such very considerable work is all the less at its place in this report as there again it concerns bills-of-lading, whereas at present we wish to deal only with charter-parties. V.
Distance freight. QUESTION
Is it possible to regulate the question of distance freight by international Convention ? ANSWER :
Yes. QUESTION
If it is possible to regulate this question, ought the principles of the draft-treaty of London to be maintained (Articles 25 -6 34) ? ANSWER :
The Association opine that articles 25 'to 34 of the London draft-treaty ought to be taken into consideration;
- 137 but in view of their wording it will be necessary to revise said articles and to indicate more precisely the principles which should be made to prevail. One principle, it seems, must be admitted : that which enacts the suppression of distance freight : freight shall
be wholly payable, or it will not be due; but there will never be freight payable in proportion to the distance effected.
Which, then, would be suggested criterion to decide whether freight is payable or not ? The following discrimination is necessary
the goods have not arrived at destination; the goods have arrived at destination, but after certain contingencies. A) The goods do not arrive at destination. The Association suggest to adopt the following principle
« No freight is due in respect of goods which have not been delivered to the consignee or held at his disposal at the port agreed upon D.
« By way of exception to this principle, freight is payable when the occurrence preventing the delivery of the goods is attributable to the nature of such goods, or to the act of the charterers, shippers or their assigns )). The freight to which the owner is then entitled is represented by the difference between the freight stipulated and such freight as the master has found or ought to have found, or which he will have declined to accept without due reason D. The first paragraph is the verbatim copy of article 25 of the draft-treaty, whereas the second paragraph enacts
- 138 --
a principle summarising article 26 which the Sub-Committee propose to strike out, on the ground that it contains a necessarily incomplete enumeration. Finally the third paragraph finds its logical place here, and the French Association propose to strike out article 33 of the London draft. ***
By derogation to a general principle, the full freight will be due when an event of « force majeure » has compelled the master to discharge at a port in the vicinity. This new exception is contained in article 31 of the draft, which ought to find its place here, and which the French Association propose to adopt, leaving out the words between parenthesis, since the act of a power is a « force majeure ». ARTICLE 31.
o When after departure, owing to a force majeure (or by the act of any Power), the ship is prevented definitely or for an undetermined space of time, from entering the port of destination, the Captain has the right to discharge the goods at a port in the vicinity, acting for the best to protect the shippers' interests. In such case, the freight agreed 'upon is due to him.
B) The goods reach the port of destination, but only after certain incidents. ARTICLE 26.
The full freight is earned as soon as the goods are tendered, under the ship's tackle, at the port of destination. The incidents of the voyage which are not the result
.
- 139 -
of the act of the charterer, but occasion damage to him, give to the latter an action ex contractu against the party who hired out the ship and, if possibly a remedy ex-quasidelicto against the shipowner. »
That would be the principle, but just as there were exceptions to rule a stating that no freight is payable when the goods do not reach their destination, there are likewise eXceptions to rule b, stating that full freight is payable when the goods are tendered under the ship's tackle at the port of destination. A first exception is admitted in the case of arrest of the ship in the course of the voyage. Article 30 of the draft is worded as follows
When after departure, the ship is held up owing to a force majeure or a fortuitous accident, the charterer must either wait or pay the whole freight. » If the delay lasts so long that it may endanger gravely
the interests of ale shippers, the Captain is bound to apply to the latter for instructions and to act in the best possible manner for the protection of their interests. » The second paragraph of that rule seems inapplicable; another solution a.ppears preferable and the French Association suggest the following wording
« When, after departure, the ship is momentarily held up by a force majeure or a fortuitous cause, the charterer must either wait or pay the full freight ». » If the delay is protracted to such extent that it may endanger gravely the interests of the shippers, the charterers shall have the same rights as if the ship's unseaworthiness were final and such as they are defined in article 32. »
- 140 A second exception to the general principle is suggested in the event of shipwreck or of unseaworthiness ARTICLE 32.
Article 32 reads as follows « In the event of the ship being lost or becoming unseaworthy, the Captain must, in so far as circumstances
allow, re-forward the goods lo destination by another vessel. In such case, if the reforwarding freight is lower than the original freight, such difference benefits to the shipowner; but if the reforwarding-freight is higher, the excess is to be borne by the goods. )) The French Association propose its adoption provided
it be admitted that it should be construed to mean that transhipment expenses shall be borne by the shipowner. A third derogation to the principle of full payment of freight is found in article 29 which the French Association proposes to adopt and which reads as follows « Where freight is calculated according to the duration of the voyage, nothing is due in respect of the time during which the ship has been delayed owing to an act of the captain or of the shipowner, without prejudice to damages, if any. Freight calculated according to the duration of the voyage is not reckoned during the quarantine or deten-
tion of the ship at the lazaret, unless the goods can be discharged or unless the quarantine be due to the nature of the goods. » The rule relating to the cases where freight is payable, would not be complete without article 34, as suggested by the London Sub-Commiaee in the following words
(c The shipper may not abandon the goods for the
141
freight. This rule will apply even to goods which have deteriorated on account of perils of the sea. » The French Association propose to adopt the first sentence, which expresses a formal and very clear principle; but they suggest to leave out the second sentence, which is useless.
There are in the London draft two articles which find their place in neither of the two classes which the SubCommittee established when deriving from the various provisions the general principies governing them. Besides,
they should be classified in the general chapter of « freight » and not in the section relating to distance freight ».
But after this formal remark, the French Association reserve their opinion as to the value of articles 27 and 28 of the London draft. Article 28 reads as follows (( Prepaid freight and advanced freight cannot be re-
covered after the ship has started on her "voyage, even though the goods are wholly or partly lost. » Our draft of codification establishes certain cases where no freight iS due. But, once this legal principle is admitted, it seems illogical that a charterer who has paid freight in
advance, should be debarred from claiming refu,nd of that which is not due. The time or the mode of payment cannot alter the fundamental principle enacted in paragraph a mentioned above and « prepaid freight » must not be assimilated a priori and in a lawtext to (( freight acquired in any event ». Before expressing a decision as to the adoption of this article 28, the French Association wished to know what
- 142 reasons prompted the London Sub-Committee in proposing such principle, which seems contrary to the constant practice in such matters, since the two above-mentioned clauses are never considered as synonyms. ARTICLE 27.
The same remark applies to article 27 reading as follows
« Lump sum freight is payable, whether the goods shipped be delivered or not at the port of destination. )) VI.
Time-limits and prescription. QUESTION
Ought not Article 5, Sect. 3, of the International Convention upon Bills-of-Lading to be adopted in respect of all actions for loss or damage to goods, and ought not
this rule to be preferred to the rule contained in Article 47 of the drafv.reaty of London ? (The Sub-Committee is in favour of this measure). Ought the period of limitation of actions arising out of carriage by sea to be one year (International Convention of 1924) or wo years (Article 48 of the draft-
treaty of London), or is there ground for making a distinction between the various kinds of actions ? ANSWER :
Article 3 § 6 of the Brussels Convention on Bills-ofLading provides that there will be prima facie evidence of delivery, by the carrier, of the goods such as they are described in the 13./L, when there has been no notice in
- 143 writing before or at the time of the removal of such goods.
But said article provides in addition that, when loss or damage are not apparent, such written notice may be given
within three days of the date of delivery of the goods. A formal and absolute provision further stipulates that suit shall be brought within one year after delivery of the goods or the date when the goods should have been delivered, failing which such action is barred by prescription. The London draft contains, on this question, two distinct provisions.
In the first one (article 47) it is stated that no claim for loss of, or damage to, goods carried, is admissible, unless the consignee has, within the delay of one week, from the date of delivery to himself, given written notice of his claim to the captain of the ship. In the second (article 48) the delay of prescription for the action is two years. The French Association propose to adopt article 3 § 6 of the Convention on bills-of-lading instead of articles 47
and 48 of the London draft, to fix a uniform delay of prescription of one year to be computed as provided in article 3, and to make no distinction between actions for loss, damage or delay. It should be understood, besides, that such assimilation shall only apply to the operations of a strictly maritime character, from tackle to tackle. On the other hand for everything which does not come within the scope of the carriage by sea proper, such as handling, custody, transit, the shipowner shall be governed by the laws on carriage by land.
- 141 -
VII. - Liens on the goods. QUESTION :
What are the liens upon goods which the captain ought to have for payment of freight ? ANSWER :
The master should be granted, as a guarantee 10 A right of retention; 2° the right to proceed, under a proper judicial authority, with the sale of the goods, up to the omount of his claims; 3° the right to enforce payment, by preference, on the sale price. If the proceeds of the sale are not sufficient to cover his claim, the master has a remedy against the shipper and the claimant. On the other hand it appears practical to decide that the master loses his lien at the very moment of the delivery; and he then becomes an ordinary creditor. QUESTION
What liens should there also be upon the goods in respect of demurrage, contribution in general average, salvage, or for expenses in preserving the goods ? -
ANSWER :
The lien in favour of the master must guarantee the payment of . freight, demurrage, provisional general average contribution and expenses of the master for the preservation of the goods.
- '145 QUESTION
3) What priority is it possible to establish between -these different liens ? ANSWER :
In the first class, the judicial costs, then the expenses for preserving the goods, according to the inverse order .of dates, the last-dated coming first;
finally, freight, demurrage and provisional generalaverage contribution. VIII.
The law applicable to Contracts of carriage. Solution of Conflicts of law. QUESTIONS
a) If no complete international unification of the rules governing the contract of affreightment can be arrived at, may it not be possible to frame an international rule for the purpose of solving conflicts of law in determining the law applicable to any given contract ?
b) Should such law be I) The law of the ship's flag ? The law of the port of embarkation ? The law of the port of discharge ? Or the lex loci contractus ? c) Would it be possible to adopt a single rule to apply to all matters of conflict, or would it be more suitable to make distinctions between different parts of the con.tract of carriage ? IO
- 116 ANSWER :
Certainly, if we could obtain that States would agree as to the law applicable, in such case, this would indeed be an excellent result. When any incident occurs, each party
would know, but only then, which law is to applyi in virtue of an international agreement. But, in every case, the law would be different, so that such agreement in regard to jurisdiction or legislation would not constitute a progress towards the unification of Maritime Law. No general solution of the question appeared satisfactory; it would indeed be hardly juridical to apply a uniform rule of conflict for all difficulties whatever : the various parts of the carriage of goods ought to be examined separately; but it does not seem possible to carry out this extensive task at the present time, however desirable this may be.
NETHERLANDS ASSOCIATION OF MARITIME LAW OF THE NETHERLANDS
International Code of Affreightment The Association of Maritime Law of the Netherlands, at their meeting of 31st January, 1925, have examined the questions put by the Paris Sub-Committee in their report published in Bulletin Nr. 67 of the International Maritime Committee. The remarks to which said questions gave rise are as follows
A. Whether a general international Code is both desirable and practicable ? We consider that the matter to be regulated is so extensive and intricate, and that the tenets of law obtaining in
the various countries are so diverging, that it will be advisable to abandon the idea of one complete Code, the value of which would, in addition be q-uestionable,
since the greater part of its provisions would only be applicable where there is no agreement to the contrary between the parties.
B. If the first question is answered in the affirmative, should it be a Code of law or a set of rules such as the York-Antwerp Rules, which would be incorporated in commercial contracts ?
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We have answered the first ques:ion in the negative. -However, we suggest that such text of law ought to be fraxned by the national legislatures. On many occasions
has it been pointed out that the difficulties to obtain .official adoption of some such document of international private law are multiplied in almost a geometrical proportion to the number of provisions it contains. On the
other hand, to recommend that shipowners and merchants should incorporate into their contracts a code, the first proviso of which must unavoidably be that most of its articles will only be applicable where the.:T is no clause to the contrary, would in our opinion, be a contraflictio in terminis.
If the answer to the first question is in the negative should an attempt be made to secure greater international uniformity of law by giving attention to particular sub-
jects and framing a short draft-Convention on those points ? We think it would be useful to study a limited number ,of special questions and to frame a draft-convention on .such points, if agreement thereon can be reached.
In that case, might the following questions usefully form the subject of such draft : 1) Carrier's obligation in
regard to seaworthiness; 2) responsibility of the shipowner towards bill-of-lading holders or sub-charterers; 3) letters of guarantee; 4) through-bills-of-lading; 5) distance freight; 6) time limits and prescriptions; 7) li,ms on goods; 8) the law applicable to contracts of carriage; solution of conflicts of law ?
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In a general way, we approve of the choice made by the Sub-Committee among tbe subject matters, whose international regulation is more or less. urgent. We will give below a summary of the solutions suggested by the general meeting of our Association and of the provisions of our new Dutch law in regard to the points mentioned. I.
Carrier's obligation in regard to Seaworthiness.
Should the provisions of Articles 3, Sect. I and 4, Sect. l, of the International Convention upon Bills-oflading be extended to cover contracts of affreightment which are not within the scope of the said: Convention ? The articles in question to which should be added Article 3 S 8 prohibit, under penalty of being null and void, any clause in a contract relieving the carrier
of his obligation lo exert, before and at the beginning of the voyage, due diligence t6 make the ship seaworthy, including the proper manning, equipping and supplying
the ship, and namely making the holds, refrigerating and cool .chambers and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. Whenever any loss or damage is the result Of unseaworthiness, the burden of proving that due diligence has been taken, will lay on the carrier or any other person relying on this defence.
The provisions of the new Dutch law in regard to seaworthiness are as follows I. In chapter V, applying to affreightment of ships in general, there is, under § 2 o re time-chartering », article 460 which runs : o In the case of a time-charter, the owner is bound
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to put the ship at the disposal of the charterer in good condition of repair, with adequate apparel and equipment and in proper condition for the purpose indicated in the charter-party. He is bound also to keep the ship in such condition for the duration of the contract. He is responsible for the damage caused to the charterer owing to the condition of the ship, unless he shall prove that he has carried out his obligations in regard to the maintainance equipment and apparelling of the ship.
In the case of a ship propelled by mechanical power, the fuel for the engines is for account of the charterer. » 2. Chapter Va re (( carriage of goods », under the heading of § 1 « general provisions », contains the following articles, viz Art. 470 : ((The carrier is not allowed to stipulate that he shall not be responsible, or that his liability will be limited in regard to damage resulting from defective preservation or inadequate equipment and apparel of the carrying craft or its unfitness for the agreed transporta-
tion, or from negligence in handling or watching the goods.
» Every stipulation to the contrary shall be null and void. » However, in the case where neither the nature nor the value of the goods have been made known to him before or at the-time of their reception, the carrier may stipulate that he shall not be answerable in respect of negligence in the handling or preservation of the goods, beyond a
certain amount fixed. for each package carried. Such figure shall not be less than fi. 600..
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Art. 517e. a It is prohibited to issue bills-of-lading whose stipulations should be contrary to the provisions of article 470. This prohibition applies without distinction
to any goods carried from or to a port of the Netherlands.
))
3. Chapter Va mentioned above has been subdivided into 4 §§, the first of which contains The general provisions to which we have just referred. The other §§ are § 2, the carriage of goods by regular lines; § 3, re the carriage of goods under a time-charter; § 4, the carriage under a charter for the voyage; and § 5, the loading on the berth. Of these paragraphs, § 2 and § 3 do not contain any particular provision in regard to seaworthiness. But under paragraph 4, article 519e has been worded as follows a Where the ship cannot perform the intended voyage,
by reason of unseaworthiness or being unfit for the voyage at its beginning, the owner is bound to indemnify the charterer therefor. )) This article applies to loading on the berth, according to 520k of § 5, which is worded as follows : a The provisions of article 519e are also applicable here. » The result of these provisions is that the principle of the owner's liability in respect of seaworthiness does apply to contracts which are not subject to the Convention on Bills-of-Lading, but that the owner shall be allowed to contract himself out of this liability, except when he is
at the same time the carrier of the goods. In this event which will occur in most cases, he will always be liable towards the owner of the goods. We would not see any objection to extending the Con-
- 152 vention on Bills-of-Lading also to contracts of affreightment provided that tbe liability in respect of unseaworthiness shall not lie with the shipowner who is not at the same- time the carrier, unless this be specially agreed. But in such case, the question might arise whether it is desirable to insert such provision into an international Convention. Besides, cases where the seaworthiness is not especially referred to in the charter-party, do occur very seldom.
Responsibility of the Shipowner towards Bill-ofLading holders or Sub-Charterers. a) As to the questiort of unseaworthiness of the ship,
the sub-committee has examined the three following ideas
The shipowner incurs no further responsibility when he has once discharged his initial duty in regard to seaworthiness at the commencement of the charter. The shipowner is responsible to holders of bills-oflading and sub-charterers:in respect of unseaworthiness understood in the strict sense of inability to keep the sea. The shipowner is responsible in every case in which the charterer is himself responsible to the holder of the bill-of-lading.
The sub-committee enquires which of these views
should be adopted. Further, they put the question whether, if the responsibility of the shipowner should be preserved, it should be a joint and several liability or a
liability in default on the part of the carrier ?
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The new Dutch law does not contain any provisions as to the legal liability of the shipowner or of the managing owner
a distinction to which we will refer later on
in respect of seaworthiness of the ship. In principle, such liability does not rest with them in their capacity as owner or managing owner. They may be responsible
for the seaworthiness if, in virtue of a contract, they have undertaken to make the ship seaworthy or to maintain it in such condition. Therefore, they will be liable for damages resulting from unseaworthiness, if the latter was caused by their personal negligence. In this respect, the legislator has not formulated with reference to seaworthiness any other articles than those we have just recited. However, we may point out that the shipowner who causes goods of a third party to be carried by his ship, is always considered as carrier, either under a mere con-
tract of transport or under a charter. That is why, the claims mentioned in articles 318c and 318g have a lien on the ship, although the latter may belong to another than the managing owner, and the latter is bound by the bills-of-lading signed by the master in his own name. We will explain this legal system when replying to the subsequent question. The solution given by Dutch law has been the subject to criticism. Still, we think it deserves to be examined closer by the Sub-Committee. b) As regards the liability of the shipowner towards the bearers of bills-of-lading and sub-charterers, in res-
pect of the acts of the master, the Sub-Committee has considered three solutions : 1) the shipowner is responsible for these acts; 2) a distinction between commercial errors and nautical errors is a necessity; 3) a distinction is to be made according as the master is appointed by the shipowner or by the charterer, and according as there
(( demise )) or not. In the latter event, the questiort arises how is to apply the provision of the International is
Convention establishing a lien in respect of claims resul-
ting from the B/L. The new Dutch law establishes a distinction between the shipoNvner and the managing owner. « The managing owner (armateur) » according to article 320, « is he who operates a ship on sea-traffic eizher personally or through
a Master who is in his service. )) The time-freighter remains managing owner, but where he hires out his ship (under a bare boat charter), the hirer himself becomes the managing owner. The case where the ship is managed by a ,usufructuary has not been specially considered by Dutch law, the usufructuary being owner in the sense of article 320. The relations arising between the managing owner and third parties from tbe acts of the owner's servants, are regulated by art. 321. Art. 321
« The managing owner is bound by the obli-
gations entered into by all those who are in the regular or detached .service of the ship, in accordance with the powers granted to them ». He is responsible towards third parties for any damage caused, in the exercise of their duties or in carrying out their work, by all those who are in the regular or detached
service of the ship or who perform work on board for the benefit of ship or cargo ».
In the case where the managing owner is not at the same time the owner of the ship, the ship will ordinarily be responsible for the acts of the master and the liabilities incurred by him towards third parties. Article 318q has granted to such third parties a lien on the ship. Art. 318q, 1st paragraph : « Claims relating to the ship or resulting from its management, also claims resulting from the obligations of the managing owner, mentioned in article 321, will have a lien on the ship and its accessories under article 318g. This lien ranks immediately after the claims mentioned in article 318c and the mortgages. » Article 318q is comple.ed by the subsequent article 318r, reading as follows Art. 318r : « The claims mentioned under articles 318c and 318q have a lien on the ship, although they should arise out of the use of the vessel for sea-navigation by another party than the shipowner, unless such third party has used the vessel for such purpose withOut the .ship-
owner's authority, and unless the creditor should not act bona fide. » Special cases have been considered by the new statute in its articles 322, 5118e, 518d and 518k. Art. 322 : « Where, in the event of a hiring out of a ship, the hirer has, under the provisions of article 321, entered into liabilities before the entry of the hire-contract on the ship's register, the creditors shall be at liberty to sue also the shipowner, unless at the time the claim ar6se, they had notice of the existence of the charter-contract.
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The shipowner who has paid such claims, will have a remedy against the charterer. » Articles 518c and 518d are to be found under chapter Va (of the Carriage of Goods) § 3 : carriage of goods under a time-charter. They read as follows Art. 518e : « Within the terms of the charter-party, the master has to follow the charterer's instructions in anything which relates to reception, carriage and delivery of the cargo. In this respect, he may act on behalf of the charterer,
unless the latter should have appointed others for the purpose.
Whoever has, in regard to this, contracted with the master, shall be at liberty to sue the shipowner as well as
the charterer. » Art. 518d : « The charterer may accept in view of carriage any goods of third parties at such freight and conditions as he deems proper. If the bills-of-lading, issued in respect of such goods,
are signed by the master on his behalf, the bearers of such Bs/L can sue the shipowner as well as the charterer. If, in regard to this, the shipowner was liable for more than what is stipulated in the charter-party, he will have a remedy against the charterer )). A similar provision is found in 4 : carriage of goods under a charter for a voyage Art. 518k : « The charterer may accept in view of car-
riage any goods of third parties at the conditions contained in the charter parties at such freight as he deems proper. If hills-of-lading issued for such goods, are signed by
157
the master or on his behalf, the bearers of such Bs/L can sue the shipowner as well as the charterer. If, owing to this, the shipowner were liable for more
than is stipulated in the charter-party, he will have a remedy against the charterer. » By these provisions, the Netherlan.ds legislator has endeavoured to solve the problems with which the SubCommittee had to deal. We can only recommend their e adoption.
Letters of Indemnity. The Sub-Committee are of opinion that as a matter of principle, it would be advisable to prohibit the practice of letters of indemnity, in accordance with article 7 of the London draft and with the resolution of the International Shipping Conference (May 1924) which condemned that practice. We share the same view. 1V.
Through-Bill-of-Lading.
The first question is whether to maintain the solutions given in article 50 of the London draft. Said article is worded as follows
(< Where goods are carried under a through-bill-oflading, each carrier is only liable in respect of loss or damage occasioned to the goods during the time they were under his custody.
» The consignee has however the option to sue also the last carrier or the intermediate carrier. » The loss of freight or costs in consequence of subse-
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quent loss of the goods, will be apportioned between the various carriers, in proportion to the price of transport payable to each of them. )) The Netherlands legislator considered that the problem of through-bills-of-lading only arises in respect of carriage
by regular liners and of loading on the berth. That is why he has inserted the provisions he judged necessary in § 2 Title Va. Art. 517v, 1st section : « The carrier who, at a place which is not included in the itinerary of his service, accepts for carriage any goods, or undertakes to carry any goods for delivery at such a place, will be liable, as carrier,
for the whole of the carriage, even if the latter is not effected wholly by sea, in accordance with the law applicable to each part of the carriage. )) Art. 517w, 1st section : « TWO or more carriers who accept goods for carriage either wholly or partly by sea,
on corresponding lines, will be jointly responsible as carriers for the whole of the transportation, in accordance with the law applicable to each portion of the carriage. ))
The result of the sections 2 of each of these articles is that the carrier naay- stipulate, either in the contract of
carriage or in the through-bill-of-lading which he will deliver, that his liability will be limited to his own service. In such case, the law lays upon him certain obligatiorts,
namely the duty to see to it that the previous and subsequent portions of the voyage be effected according to the
provisions of the contract of carriage or of the B/L. Art. 520r, in the § relating to the loading on the berth, is worded as follows : « The provisions of articles... 517s-517u are applicable here also. »
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We consider that the solution given by the Dutch legis-
lator is much simpler than that contained in art. 50 of the London draft. We particularly call attention to the provision relating to the law applicable. The system of the Dutch law would have the effect of minimising the difficulties arising from a difference in the extent of liability for carriage by land and carriage by sea.
The second question put by the Sub-Committee refers
to this difficulty. It is asked how the provisions of the International Convention of 1924 on Bills-of-Lading are likely to operate on through-bills-of-lading, especially when there is a different maximum liability in respect of sea and land carriage ? We answer that, according to the provisions we have just quoted, these laws will be applicable to land carriage. The owner of goods to be carried under the Convention
on Bills-of-Lading will examine the limits of liability applicable to land carriage and will then take such measures as he may deem proper. V.
Distance Freight.
The Sub-Committee puts the query If it is possible to regulate the question of distance freight by international Convention ? If it is possible so to regulate this question, ought the principles of the draft-treaty of London to be maintained (articles 25 to 34) ?
Articles 25 to 34 of the London draft-treaty were worded as follows :
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No freight is due in respect of goods which are not delivered to the consignee or put at his disposal at the agreed port. Art. 26. However, freight shall be payable in the following cases : a) where the non-delivery is the conseArt. 25.
quence of the negligence or default of the charterers, shippers or their assigns; b) where goods have perished by reason of their condition at the time of shipment or by reason of their nature, provided the primary cause
of the loss was not due to a fortuitous accident; c) in the case of 'animals which die during the voyage, provided their death be not due to any negligence oil the part of the carrier; d) in case prohibited goods or goods of a dangerous nature had to be destroyed during the voyage, provided the carrier was not aware of their nature at the time of shipment; e) in case goods had to
be sold in the course of the voyage owing to their damaged condition, whatever may be the cause thereof; f) in case the loss of the goods has been made good in general average. Art. 27. Lump sum freight is payable, whether the
goods shipped be delivered or not at the port of destination..
Art. 28. Prepaid freight and advanced freight can.not be recovered after the ship has started on her voyage, even though the goods are wholly or partly lost. Art. 29. When freight is calculated according to the duration of the voyage, nothing is due in respect of the time during which the ship has been delayed owing
to an act of the Captain or of the shipowner, without prejudice to damages, if any. Freight calculated accor-
-
161 -
ding to the duration of the voyage is not reckoned durihg
the quarantine or detention of the ship at the lazaret, -unless the goods can be discharged or unless the quaran-
tine be due to the nature of the goods. Art. 30. When after departure, the ship is held up owing to a force majeure or a fortuitous accident, the charterer must either wait or pay the whole freight. If the delay lasts so long that it may endanger gravely the interests of the shippers, the Captain is bound to apply to the latter for instructions and to act in the best possible manlier for the protection of their interests. Art. 31. When after departure, owing to a force majeure or by the act of any Power, the ship is prevented definitely or for an undetermined space of time, from
entering the port of destination, the Captain has the right to discharge the goods at a port in the vicinity, acting for the best to protect the shippers' interests. In such case, the freight agreed upon is due to him. Art. 32. In the event of the ship being lost or becoming unseaworthy, the Captain must, in so far as circumstances allow, re-forward the goods to destination
by another -vessel. In such case, if the reforwarding freight is lower than the original freight, such difference benefits to the shipowner; but if the reforwarding-freight in higher, the excess is to be borne by the goods. In all cases provided for in article 26, the Art. 33. freight payable in respect of goods which do not reach their destination is to be understood under deduction of freight for goods which the charterer can prove to have been taken instead, or to have been offered to the Captain and refused by him without legitimate cause. Ir
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The shipper may not abandon the goods Art. 34. for the freight. This rule will apply even to goods which have deteriorated on account of perils of the sea. The corresponding articles of the new Dutch law are Title V (on chartering of ships) ; § 2 : on time-chartering
Art. 462, par. 2 : « No freight is due for the time during which the ship is unfit for ser-vice owing to any damage sustained or owing to insufficient equipment or victualling. » Art. 462 : u When the ship is lost, the contract ends from the date of the loss, or, if missing, from the time of the last news. » Art. 463 : «1f freight is not paid at the time stipulated, the owner may cancel the contract provided he gives written notice thereof to the other party. » Art. 464 : « When, in consequence of the act of a power or of a declaration of war, the fulfilment of the
contract is prevented or cannot be resumed within a reasonable delay, each of the parties may cancel the contract by giving notice in writing to the other party. »
« If the ship having taken on board any goods or passengers, is not in a port, it has to call at the first safe port which it can reach. » Art. 465 : «In the cases where the contract is termined before its term, freight is due until the day when the contract ends inclusively. » However, if in the cases mentioned in articles 463 and 464, the ship has taken on board any goods or passengers, the freight is due until the port of debarkation. ».
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Title Va (on Carriage of Goods) ; § 1 : general provisions
Art. 492 : « Wben freight is stipulated according to measurement, weight or number of goods to be carried, it shall be computed according to measure, weight or number of goods at time of delivery to the consignee, unless it should be proved that the goods had less measurement, weight or numbers at the time they were accepted for shipment. In such case, freight is computed according to the latter data. The cost of checking the measure, weight or numbers are for accoun: of the carrier unless the custom of the port should be different. Art. 502 : o The consignee may not abandon wholly or partly the goods for the freight. » § 2 : on carriage by regular lines. Art. 517p : « Freight is payable after delivery of the goods at the place of destination. However no freight is due in respect of goods arriving in such damaged condition that they have no longer any value, unless the damage be attributable to the negligence of the shipper or to the nature, the condition or the defect of the goods. » Art. 517q : « When it has been agreed that freight is
payable at the place of shipment freight can only be claimed from the shipper and freight will be due even if the goods do not arrive at the place of destination. » Art. 517r : a When finally or before expiry of a reasonable delay, the ship is prevented from continuing the carriage of the goods as agreed upon, the carrier is not freed of his obligations, but is bound to reforward the
goods to the place of destination, at his own expenses. » Art. 517s : « The contract of carriage is cancelled
when, before the sailing of the ship intended for the carriage of the goods 10 the sailing is prevented by the act of a power;
2° the export of the goods from the place of shipment or the importation at the place of destination is prohibited;
30 the goods or the ship are subject to capture in consequence of a declaration of war;
4" the port of departure or the port of destination is blockaded; 59 the ship is put under embargo. If, in the cases mentioned sub 2° and 30, the unloading of the cargo has necessitated a total or partial re-stowage of the cargo, the shipper has to bear the expenses thereof.
He is, in addition liable for the damage caused to the cargo owing to the re-stowage. »
Art. 517t : « When, after the ship has sailed, there occurs one of the cases mentioned in the preceding article sub 2", 3' or 5", that the port of destination is blockaded,
that the ship is prevented, by the act of a power or by blockade, from leaving the port it has entered, then the carrier is entitled to discharge the goods and put them in
a -warehouse at the port where the ship is, or in the nearest and safest port Nvhich it is able to reach. » « On his part, the assign of the goods may require the discharge at the port where the ship is or in the first port which it will reach. -» « Section 2 of the preceding article is also applicable here. »
Art. 517u : « In the cases mentioned in tbe preceding article, no freight is due.
» However, if the party entitled to the goods has derived any profit from the carriage, the Judge may decide, at the carrier's request, that a freight is due, and will fix the amount thereof as he may deem equitable. » §4 : on voyage charters Art. 519d : « If the ship is lost or sustains damage to
such extent that it is impossible to repair it within a reasonable delay, or is not worth the expenses of such repairs, the contract of carriage is cancelled, unless the owner should declare his willingness to reforward the goods to destination by other means and at his expense. » o He has to effect such declaration within a reasonable delay. »
Art. 519u : « The whole freight is due in respect of goods delivered at destination by the ship chartered, or which reach such destination after being reforwarded by the shipowner and at its expenses, in accordance with article 519d. » However, no freight is payable in respect of goods arriving in such damaged condition that they llave no longer any -value, unless the damage should be attributable to the negligence of the shipper, or to the nature, condition or defect of the goods. »
Art. 519v : a Except as provided in articles 519w519y no freight is payable for goods which are-not delivered at destination or do not reach there by the ship chartered, outside of the case provided for in article, 519d. »
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Art. 519w : « The whole freight is due in respect of goods withdrawn by the charterer in the course of the voyage. In addition, the owner shall be entitled to claim payment or bail for any amount due by way of general average or other similar causes, cost of discharge and damages.
He has not to deliver the goods claimed if the voyage of
the ship should be thereby delayed. » Art. 519x : « No freight is due in respect of goods sold during the voyage owing to damage of such nature that it would not be reasonable to continue the carriage thereof any further; unless the sale should have procured
a profit to the charterer. In that case, the amount of freight shall be fixed equitably by the judge. The shipowner may accept other goods to replace those sold. The freight of goods taken instead is due to him. »
Art. 519y : « For goods jettisoned or used by the master (owing to the necessities of the ship or its cargo) in accordance with article 357, the whole freight is due; unless there should be reasons for admitting that no freight would be chargeable had the goods not be jettisoned or used. » Art.519z: «In the case of lump sum freight, such freight shall be reduced prorata if, for part of the goods shipped, no freight were payable under the provisions of articles 519u, section 2, 519v and 519x. » Art. 520 : « Sums paid on account before delivery of the goods at destination will be considered as advances
on freight. Unless otherwise agreed, such amount will be recoverable wholly or partly, in the case where no
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freight is payable, or is due o»ly up to a lower figure than the freight agreed upon. Contrary agreement will be presumed to subsist in the case of advances charged with insurance premium. » Art. 520a : « When, owing to the act of a power or a declaration of war rendering the ship liable to capture, the voyage is prevented, or cannot be continued within a reasonable delay, either party may cancel the contract, provided such cancellation he notified in writing to the other party. o If, in such case, the ship having goods on board, is not in port, the owner is bound to call at the first safe port which he can reach and there discharge the cargo. » All expenses of discharge are for account of the owner. » Art. 520b : « When before the shipment of the goods, and owing to the act of any power, the carriage of the goods mentioned in the charter-party is prevented, or if, owing to a declaration of war, such goods are liable to be
captured, the charterer may offer other goods instead of the agreed cargo, provided the carriage thereof be not more expensive for the shipowner. If the charterer does not avail himself of this option, either party may cancel the contract, provided the cancellation be notified in writing to the other party. » If, in such case, the ship is not in a port, the shipowner
is bound to call at the first safe port he can reach and there to discharge the cargo. All expenses of discharge will be for the shipowner's account. ))
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o When the cases mentioned in the preceding article should occur after the shipment has commenced, either party may cancel the contract, provided such cancellation be notified in writing to the other party. If, in such case, the ship is not in any port; the owner is bound to call at the first safe port he can reach and there to discharge the cargo. All expenses of discharge are for charterer's account. » Art.
520c :
Art.
520d :
((When the measures referred to only apply
to part of the goods, or when part only of the cargo has become liable to capture, the owner may discharge such goods. The charterer interested may also request their discharge.
All expenses of discharge, including dues for entering the port, if any-, are for charterer's account. The owner may accept other goods instead of the discharged, and will have the freight thereof. » Art.
520e : o
Except in the case mentioned in section
2nd, no freight is due in respect of goods discharged under the provisions of articles 520a, 520e and 520d, or which have not been embarked according to second section of article 520b.
If the charterer has derived any profit from the carriage or if, in view of the fulfilment of the contract of carriage a up and return voyage has been effected without any freight being paid, or in other similar cases left to the discretion of the Judge, the latter may decide, at the request of the owner, that freight will be payable and he shall fix equitably the amount thereof. »
- 69 § 5 : on loading on the berth. Art. 520r : (( The provisions of articles 519u-519y, 520, 517.s-u, are also applicable here. »
The result of these provisions is that the legislator of the Netherlands has replaced distance freight by a very detailed regulation. In the case where, owing to the very subtle questions to be solved, the legislator could not embody such regulations in the law itself, he has entrusted the solution to the Judge who will decide equitably. We beg to recommend this system which embodies the
same principles as the London draft-treaty, to the study of the Sub-Committee. No doubt, the Sub-Committee will perceive the disadvantage of such system which will entail for the parties the necessity of having recourse to the Courts in order to settle the disputes which do not arise under the system of the French and Dutch code of commerce, which, if it failed in strict equity, at least did not leave parties in the uncertainty as to their rights.
VI. Time Limits and Prescriptions. The Sub-Committee asks whether Rule 5 § 3 of the International Convention on Bills-of-Lading ought not to be adopted in respect of losses or damage to the goods, in preference to the London draft-treaty (Art. 47) ? By article «5 § 3 of the Convention is obviously meant article 3 § 6, which is worded as follows
(( Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at
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the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract
of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be primet fa,cie evidence of the delivery by the carrier of the goods as described in the bill-of-lading. The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.
In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. In the case of any actual or apprehended loss or damage
the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods. Article 47 of the London draft-treaty, to the contrary, is worded as follows « No claims for loss of, or damage to, goods carried shall be admissible, unless tbeir condition has been ascertained between the parties within the delay of one week from the date of delivery to the consignee, or unless the consignee has, within the same delay, given to the captain of the ship or to his agent, written notice of his claim. » The corresponding articles of the new Dutch law are: Title Va (Carriage of goods); § 1 : general provisions.
Art. 481 : «If, at the time of delivery, the carrier or
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receiver require3 checking of the measure, weight or number of the goods, each party may control the checking by one or more officers or clerks or, failing these, by one or more persons appointed by the president of the Court
of the place of delivery, at the request of the more dili-
gent party, after having heard the other party or his representative, and even without having heard them if the other party or his representative does not appear on regular summons. The summons will be issued by the Court's clerk, by registered letter. The expenses of control will be borne by the parties in equal shares. The result of such control will be binding on the parties unless inaccuracy be proved. » Article 483 : « At the time of the delivery, the carrier as well as the receiver may subject the goods to a judicial survpy, so as to ascertain their condition. They may also cause the damage to be assessed, if any. The surveyers to be appointed by the president of the
Court of the place of delivery, after having heard the other party or his representative, or even without hearing same if the other party or his representative do not appear on regular summons. The summons will be issued by the Court's clerk, by registered letter. »
Art. 484 : If such survey is effected in presence of both parties, or after regular summons to the other party or his representative, the surveyors' report will be con-
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elusive proof of the condition of the goods at the time of the survey, unless its inaccuracy be proved.
The result will be the same if, at the request of the receiver, the survey takes place after the delivery. » Art. 485 : « When goods have been accepted without the checking indicated in article 481, any action against
the carrier will be barred in respect of damages for shortage in the number of packages carried, or in the Measure or weight of unpacked goods, unless such shortage should be mentioned by the consignee on the receipt
delivered by him, on the B/L endorsed by him, or in a deed of protest addressed in writing immediately after the reception, to the carrier or his representative. If a shortage is found on goods of different quality, the
goods that are short are presumed prima facie to have consisted of packages of corresponding quality, in proportion to the goods delivered. » Art. 486 : « When the goods have been accep:ed with-
out the survey as mentioned in article 483, any action against the carrier will be barred in respect of damages to the goods, unless the damage should be mentioned by
the consignee on the receipt issued by him, or on the bills-of-lading endorsed by him, or unless the consignee should have reserved his rights before the expiry of three days aftex accepting the goods by a written notice addressed to the carrier or to his representative. Such notice must mention the damage ascertained. Such damage includes total or partial loss of contents. ))
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Art. 487 : « If a claim for damages has been reserved
in ,accordance with articles 485 and 486, it has to be enforced, within one month from the date on which reserves were made. In respect of damages due, the consignee shall have a lien on freight ranking before any other claims, except those claims mentioned in article 318c, provided he has
arrested freight within the delay mentioned in the preceding section. Such arrest is prima facie evidence that the provisions of the preceding section have been complied with.
If there is no title, the President of the Court at the place where the goods were delivered may grant the arrest.
Proceedings for validation or withdrawal of arrest, as well as the request for declaration by the third party with whom the arrest is laid, will be submitted to that Court. » Art. 488 : « If the damage is the result of personal dolus or negligence of the carrier, articles, 485 and. 486, as well as sections 1 and 2 of article 487, will not apply. However, in such case, the consignee has also a lien on freight if he causes same to be arrested within one month as from the date of acceptance of the goods. In such case, section of article 487 will apply. » The Sub-Committee favours the adoption of rule 5 § 3 (3 § 6) of the International Convention on Bills-of-Lading. We question whether on this matter therè should be pas-
sed an international Convention embodying a uniform
- 17i solution and whether the questions relating thereto ought
not be left for settlement by the national laws at the ports of discharge. If this view could not be adopted, we consider that, if the Convention is signed and ratified, it is not desirable to make a distinction between the delivery of goods carried under a bill-of-lading and the delivery
of goods carried under any other contract of carriage. However, if the Convention is not put into force as law, we are of opinion that rule 5 S 3, against which were raised some criticisms which have not been refuted, should not be given preference over the short provision of article 47 of the London draft, or over the detailed system of the Dutch law.
The Sub-Committee further enquires wheher the period of limitation of actions arising out of carriage by sea is to be one year (International Convention of 1924) or two years (article 48 of the draft-treaty of London)
or whe:her there is ground for making a distinction between the various kinds of action ?
In addition to the forfaiture mentioned in articles 485, 486 and 487, the delay of prescription of actions arising out of carriage by sea is regulated by article 741 of the new Dutch law. This arlicle reads as follows a The time limit is of one year 1° for any actions in payment of amounts due by the consignee in respect of the carriage;
2° for any actions in payment of amo-unts due by passengers;
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3° for any actions against the carrier in respect of the carriage of goods or of passengers. Said time-limits are computed as follows
Those mentioned under 10 and 2', from the end of the voyage.
That mentioned under 3', from the arrival of the ship, or if the ship has not reached the place agreed upon for the debarkation of passengers or for the delivery of goods, from one year after the carriage has commenced. »
The law has adopted, in principle, the delay of one year and we are of opinion that, in view of modern carriage conditions and means of communication, such delay is sufficient.
VII
Liens on Goods.
The Sub-Committee enquires
What are the liens upon goods which the captain ought to have for payment of freight ? What liens should there also be upon the goods in respect of demurrage, contribution in general average, salvage, or for expenses in preserving the goods ? What priority is it possible to make between these different liens ?
We reproduce hereafter the provisions of the new Dutch law : Title Va (on carriage of goods) § 1 : general provisions:
- .1 76 -
Art. 493 : o Except as provided in articles 550, 551 and 568f, all parties who have given assistance or salved goods or ships, may retain such goods or ships assisted or salved until salvage remuneration be paid, or bail provided therefor. D Art.. 550 : a When ships or goods have been salved, brought into safety or fished up at sea or on sandbanks or marine shallows without the master of the ships, or the owner or consignee of the goods being present or known to the salvors, the ships or goods will be removed soonest possible to tbe port nearest to the place where the salvage was effected, and given into the custody of the officer, appointed by the public authorities, for the management of such ships or goods, or failing such officer, into the custody of the municipal authorities. In the event of infringement, the salvors forfeit any claim to remuneration, and will be liable in damages, without prejudice to penalties, if any. » Art. 551 : «In the event of stranding or sinking of ships or of goods fished up or near firm beaches, in the absence of the master, or of the owner or consignee of the goods, or failing contrary- instructions received from them,
the ships or goods will be salved and brought into safety excluding any other parties by or through the
municipal authorities of the spot where the ship was stranded or where the goods were recovered. However, if, in the case contemplated in this article, it is impossible distinctly to ascertain the ownership of the
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goods owing to their being mixed together, or to any other reason, or if the ownership is disputed, the salvage and bringing into safety will be effected exclusively by the above-mentioned officier or municipal authorities. »
Art. 568f : « When a ship abandoned by the master and by the crew, is in charge of the salvors, the master may at any time, return to his ship and resume command; in such case, the salvors will have to relinquish at once
the command to the master, without prejudice to the rights they have acquired to a remuneration; in case of infringement of this provision they will forfeit any indemnity and be liable in damages. )) The provisions shew, as a result, that Dutch law recognises only one maritime lien on the goods, viz the right of retention by the salvors. In those circumstances, it was useless to classify the liens.
Practical experience has demonstrated that the liens of the master on the goods shippend have given rise to so many abuses, that we are only to glad to welcome the abolition of such guarantees. VIII.
,
The Law applicable to Contracts of Carriage. Solution of Conflicts of Law.
Finally, the Sub-Committee put the following question: a) If no complete international unification of the rules
governing the contract of affreightment can be arrived at, may it not be possible to frame an international rule 12
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for the purpose of solving conflicts of law in determining the law applicable to any given contract ?
b) Should such law be The law of the ship's flag ? The law of the port of embarkation ? The law of the port of discharge ? Or the lex loci contractus ? c) Would it be possible to adopt a single rule to apply to all matters of conflict, or would it be more suitable to make distinctions between different parts of the contract of carriage ? We consider that there is certainly a necessity of making such distinctions.
Where the question is of the form of contract and the essential conditions of its validity, there is no inconvenience in subjecting the contract to the lex loci cotztractus.
However, if the contract contains any clauses which are contrary to the provisions of public order of the country where it is invoked, every effect must be denied to such clauses, even if they should he valid in the State where the contract was passed. At the port of discharge, the laws into force as to discharge of goods there must apply; on the other hand, the legal provisions as to shipment obtaining at the port of shipment must regulate the putting on board of the goods. On the high seas and in uncivilised
countries, the relations between the Master and the owners of goods will be subject to the law of the ship's flag, &c. &c.
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The provisions of the new Dutch law in regard to its application are as follows Art. 517c : « It is not lawful to issue Bs/L containing clauses contrary to the provisions of article 470. This does apply without distinction to any shipments coming from
or intended for a Dutch port.
))
Art. 517d : « Articles 468-480 apply without distinction to carriage of goods by sea from or to a Dutch port. The provisions of this chapter concerning the loading or discharging, and the delivery of the goods, are always applicable when the loading or discharge and the delivery take place in a port of the Netherlands. )) Art. 517v and w, and article 520r concerning throughbills-of-lading, are already reproduced above. Art. 517y : « Articles 517f and 515p-517x apply without distinction to carriage of goods by sea when the place of loading or of destination is a Dutch port. »
Art. 518g : « Unless otherwise agreed, the provisions
of this § apply to the time-charter of a ship flying the Dutch flag, without regard to the place where the contract of affreightment has been entered into. » Art. 520f : « Articles 518h-518k, 519b-519f and 519u-
520e apply if the subject-matter of the contract of affreightment is a ship flying the Netherlands' flag, or if the carriage of the goods is intended for a Dutch port or directed towards a Dutch port. ))
- 180 Art. 520t : (( Articles 520k, 520r and 520s apply without distinction to carriage by sea when the place of sailing or the place of destination is a Dutch port. » G. VAN SLOOTEN.
DEN MARK DANISH ASSOCIATION OF MARITIME LAW
Immunity of State-Owned Ships We have studied the Gothenburg Resolutions on this subject and beg to offer the following remarks
ART. 1. After the words « and the States owning or operating such vessels » should be added, « or owning such cargoes ».
ART. 3. We gather from the Report of the Gothenburg
Conference that it is intended to leave all questions of jurisdiction and procedure to be decided by the national laws, and we also think that will be the wisest course to adopt. We suggest, however, that it should be made clear,
that there has to be, in every contracting State, some tribunal which shall be competent to deal with the cases referred to in this article. We are doubtful whether that is made perfectly clear in the article as it reads now. As to the question of arrest we venture to suggest that a distinction should be drawn between 1. arrest to provide security before judgment has been given (preventory or conservatory arrest) ;
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2. arrest to enforce judgment (executory arrest). We agree that it must be left to the national laws to decide whether ships of war etc. shall be liable to preservatory arrest. But we consider that an international convention might go so far as to state that the ordinary means
of enforcing judgments should be available, if a State fails to pay such debts as are ascertained by judgment of its own competent tribunals. Copenhague, the 10 June 1925.
On behalf of the Danish Committee J. KOCH.
DENMARK DANISH ASSOCIATION OF MARITIME LAW
CompulSory Insurance of Passengers The members of our association are still very doubtful as to whether it will be advisable to introduce an insurance scheme such as proposed by the Paris Committee.
We have a strong feeling that it would be necessary considerably to increase the figures proposed by Sir Norman Hill (Report of Antwerp Conference 1921, p. 137), if there should be any possibility of having the proposed scheme agreed to by our Parliament. In this respect we beg to suggest The amount payable in case of death to adults over 18 should be at least £ 250.
The amount to be paid in case of permanent disablement should vary in proportion to the degree of disablement. In case of total disablement the amaunt to be paid to adults over 18 should be 750 L. We do not suppose that the suggested increase of the amounts to be paid in case of permanent disablement would affect the premiums so very much, as experience with regard to seamen under the workmen's compensation acts.shows that cases of permanent disablement, and especially of total permanent disablement, will be rare .as compared with cases of death.
We think the Convention ought to provide that each of the contracting States should institute a body with the task of ascertaining in case of disablement to what extent earning power has been destroyed and that a decis-ion of whatever such body should be binding upon the ship owner.
Copenhagen, the 10 June 1925.
On behalf of the Danish Committee J. KOCH.
GERMANY GERMAN ASSOCIATION OF MARITIME LAW
Immunity of State-owned Ships
From a communication of the German Association of unoffiMaritime Law the German Government has given notice that, at first sight, the Gothenl3urg cially resolutions did not appear to be objectionable.
SWEDEN SWEDISH MARITIME LAW ASSOCIATION
Immunity of State-owned Ships
The Swedish Maritime Law Association, after communicating with the due Administrative Authorities, has ascertained in an unofficial way that these Authorities, in principle, have no objection against the contents of the Gothenburg resolutions.
ITALY ITALIAN ASSOCIATION OF MARITIME LAW
Immunity of State-owned Ships In regard to the question of Immunity of State-owned ships, the competent administrations of the Italian State have not as we anticipated raised any essential objections to the draft-treaty as prepared by the Gothenburg Conference. I have applied for the opinions of some of our Professors of International Law, and the various replies were almost all to the same effect. However my learned brother Professor Mr Fedozzi, of the Genoa University, although approving of the draftConvention, has been good enough to hand to me on thesubject a remarkable study, of which I beg to summarise briefly the main ideas. Mr Fedozzi, after observing that, of all States, Italy is perhaps most readily prepared to accept the draft-Convention, since there is no other country in Europe where the Courts' practice has accepted with greater continuity, the principle of subjection to the national jurisdiction, of foreign States in respect of commercial trans-
actions carried out by them,
adds that this firm
conviction can only be further strengthened in view of the numerous commercial connections created by foreign
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States owing to the fact resulting from the war of the operation of cotnmercial ships. Indeed, if the cases where immunity is claimed are frequent and usual, the limitation of the sovereignty of the territorial State becomes intolerable in view of the large number of citizens who are deprived of jurisdictional guarantees, albeit they cannot always rely on the bona fides of the foreign State. This consideration quite independently from the general principle admitted in Italy prompted the Supreme Court (Cour de Cassation) of that kingdom when all its Sections assembled, it recently issued a judgment to the effect that the acts of the Union of Socialist SovietRepublics in carrying out the monopoly of the Russian foreign trade, are subjected to the jurisdiction of Italian Courts.
But,
in the opinion of Professor Fedozzi,
the Go-
thenburg draft-treaty has omitted to solve one point of paramount importance, viz the question whether the Judge who has to decide the nature of the service on which ,the ship is employed, shall have to go by the character of
public service attributed to such ship by the laws or by the government of the State to which such ship belongs, without being at liberty to hold a different opinion. This, it would seem, is the rule followed by American jurisprudence, which has often accepted the principle that the Judge is not permitted to qualify differently what any Government has considered as a service of public order or policy. To solve the question otherwise might appear as an unlawful interference with the Sovereignty of the foreign State.
- 189 -
But from a.nother standpoint, the solution might be altogether different. To solve the question whether a ship is on public ser-
vice, and not on commercial service, is equivalent to determining the extent of the prerogatives granted to foreign States. It cannot be admitted therefore that, when
binding itself by a treaty, a State could not and should not measure the extent of what it is going to grant in order to obtain in exchange thereof an equivalent treatment; but this would be altogether impossible if the concession were left exclusively to the qualification by the State which is to derive the benefit thereof. It is besides entirely rightful that when a State such considers political and economical as Russia at present functions as inseparable, it cannot require that such a strange conception be acknowledged by foreign States,
because then there would be lacking the community of law, which, ever since Savigny, is considered as the universal condition for ex-territorial application of the law. Consequently, if, as nowadays in Russia, the whole mercantile fleet were State-owned, a.nd if all the activities of that fleet had a governmental, non-commercial character (in the sense in which these words are construed in the States under « bourgeois )) system), it would be a juridical impOssibility to acknowledge absolute immunity in favour of such State-owned ships, when applying the principles obtaining in a foreign State. A very simple sys:-em would be to .enact that the Judge
is bound to declare jurisdiction-immunity in all cases where he has to acknowledge it in respect of his- own State. But such system cannot be considered, because the
--
190 -
State's immunity in respect of its own jurisdiction is based upon judicial and political principles founded on grounds altogether different from those applying to foreign States.
Therefore, it is not possible to grant a connection between immunity under national law and immunity under international law, and it may very well happen that a State, in virtue of the fundamental principles of its public law, would submit very easily to the jurisdiction of its OW11 Courts, whereas foreign States would be exon-
erated with equal facility, either because this might be deemed consistent with an international duty, or for reasons of international courtesy. The proposal, put forward by the Maritime Law Asso-
ciation of the Netherlands, to refer to an international Arbitration-Court the decision as to the nature of public service, the non-commercial character of the operation of a ship belonging to a foreign State, would no doubt ensure uniform construction of the Convention; but this would by no means do away with the difficulties considered above, because such International Court, not being able to rely upon general principles of law, would needs
have to apply the principles obtaining in the one or the other of the States in question. It would be preferable to adopt the system of applying the principles of law in force in the country of the Court which has to decide in the matter. In such case, the application of the lex fori is after all merely applying the theory of the qualification of international juridical connections. This system can give rise to no inconvenience, as it is better appropriated for ensuring international good faith,
-lo!
because States will thus be prevented from turning political acts into commercial transactions for the mere purpose of escaping the jurisdiction of foreign States. Genoa, 26th June 1925. Prof. BERLINGIERI.
FRANCE FRENCH ASSOCIATION OF MARITIME LAW
-Compulsory Insurance of Passengers REPORT presented on behalf of the French Association of Maritime Law BY
GEORGES RIPERT Professor at the Paris Law University and at the School of Political Scie,nces.
The French Association of Maritime Law, when having
to deal on a first occasion with an International DraftConvention on Compulsory Insurance of Passengers, had
displayed its reluctance to accept the very principle of such insurance scheme. Mr H. Fabry, its reporter, in a masterful report, had pointed out. the inconveniences and dangers of such institution and the Association had endorsed almost unanimously the conclusions of its reporter.
But, since then, events have shown that it was perhaps necessary not to carry obstinately an opposition of principle to a conception which had perhaps not been presented with sufficient precision at the start. At the Gothenburg Conference, where the French Association of Maritime Law was not directly represented, it was decided
that the question of Compulsory insurance ought to be dealt with and submitted for examination to a Commission.
- 193 -
The labours of the international Shipowners' Conference, those of the International Emigration & Immigration Con-
ference, held at Rome in May 1924, and, the enquiries made by the International Labour Bureau, have shown that at the present time, a very precise current of opinion is prevailing in the various countries in favour of compulsory insurance of passengers. Rather than to accept a partial reform introduced in favour of one class of persons
whose position it would be almost impossible
to define in terms of law,
would it not be better to
rally to a compulsory insurance scheme for all passengers? Such scheme is in no way in opposition to the evolution
process of the French legislation; in fact, during these last thirty years we have seen that a certain number of laws have substituted to the ancient Principles of civil liability, the new principle of apportionment of the risks between the parties concerned. On the other hand, in regard to the refund of certain sources of damage, the traditional rules of responsibility leave so much room for doubt, and involve suCh an amount of litigation, that it would perhaps be more advisable to get a more precise 'rule of legal_liability. The Sub-Committee which met in Paris from the 10th
to the 1.2th June 1924, has prepared an international Draft-Convention, the first wording of which was drawn
by Sir Norman Hill; that draft is of such nature that it -does away with many objections which had been raised at the origin against the suggested scheme. Now that it has been placed before this better studied and more elaborate draft, the French Association thought that they could come into line on the principle of Com13
- .191
pulsory insurance and approve of the labours of the Paris Sub-Committee.
It thinks, however, that on some points, the DraftConvention might still be improved and it submits to the International Maritime Committee the following remarks:
10. The principle at the basis of the Convention is compulsory insurance of passengers against death or personal injury; bttt in the organisation of that scheme, the idea of compulsory insurance is not considered from the
juridical standpoint, which is usual in France. In fact,
it is not sufficient for the shipowner to take out an insurance in favour of his passengers, in order to free himself from any liability, as article 2 seems to imply; and on the other hand, article 15 states plainly that this shipowner is at liberty not to insure himself. There is no objection to the shipowner not taking out an insurance if his solvency is sufficient. But it should be clearly understood that, even if he takes out a policy,
he nevertheless remains personálly liable towards the passengers for the full amount of the compensation and that the passenger has not to enforce payment direct from
the underwriters. This seems to be implied in article 4; but there is a lack of harmony between articles 2, 4 and 15 which ought to be corrected. At bottom, in our French legal language, the scheme is less a question of a com pulsory insurance than a statutory liability of the shipowner, which liability the shipowner has to cover by compulsory insurance, unless he should prove being sufficiently solvent himself. The obligation does not refer to the insurance of passengers, but rather to the insurance of the shipowner's statutory
liability. We will not insist on a correction of the wording
of the draft : it is intended for an international instrument, and as such we could not require a wording .in accordance with judicial principles of French law; it will suffice that there can be no doubt as to the meaning of the text. Yet, we ought to mention that certain members of our Association would prefer the affirmation of the principie that the shipowner is burdened with a legal lump-liability for the accidents to passengers; such conception would, in their opinion, be more accurate than that of the insurance, and would avoid a good many difficulties in construing the exact scope of the shipowners' obligation. If, at the request of its reporter, the French Association of Maritime Law did not adopt this suggestion, it was prompted merely by their wish, to promote unification and not to overthrow the draft-convention based upon the idea of compulsory insurance. Therefore, the Association may to some extent be permitted to ask that the shipowner's obligations towards the passengers be defined clearly so that no doubt be possible.
2'. The draft-convention allows some exceptions in regard to pilgrims, coolies and other similar workers; these exceptions were inserted at the request of certain States. It should be observed that such exception can be hardly justified for a convention whose humanitarian object is markedly emphasised. Besides, article 3 provides
that in such case, the shipowner shall guarantee an (( equitable compensation )) to the persons injured. Such solution however is too vague and does not by any means settle the difficulty.
- 196 -
3. Against payment of the insurance indemnity, the shipowner is relieved of bis liability, excepting however that which is the result of his own wilful misconduct or deliberale negligence. On the other hand, the passenger
is guaranteed, even against his own gross negligence, excepting only the wilful misconduct and culpable negligence. This equality maintained between the two parties,
and which may appear only fair at a first glance, will perhaps not be accepted so easily. In fie!, there is hardly reason to fear that the passenger would so easily commit acts of gross negligence which may involve death or accidents. On the other hand, if the shipowner is exonerated for his culpable negligence, it may be feared that he will not devote sufficient care to the navigation of his ship.
In a general way one may say that the effect of every msurance of liability is to entail carelessness of the party assured. May be, tlie French Parliament will not easily accept a law freeing the shipowner from the consequences of his errors, even culpable, especially if the compulsory insurance compensations are not considerable. 4'. In the event of death of the passenger, art. 4 prov--
ides that the insurance indemnity shall he paid to his assigns, and the article refers to the national law of the passenger for determining the list of these assigns or heirs, The inconvenience of this provision is that it introduces the application of the national laws into an International Convention and provides for conflicts of law in the matter of inheritance a rule which may not be that followed in all States. It would be better to refer to the law regulating the devolution of succession, rather than to the national law. But it is especially necessary
.
197
to settle the case where members of the family would bring
an action, apart from their right to the insurance indemnity. In France, the action of such persons is considered by the Cours' practice as a personal right, which does not depend upon the succession of the deceased party. Therefore, it needs a formal text to suppress such action, the meaning of the Convention being evidently that no such actions will be permissible.
5". Finally, the Convention provides that the shipowner shall be bound .to issue an insurance policy for the amount the passenger may request, provided however this figure shall not exceed ten times the legal minimum: This provision of article 13 has the disadvantage that
it turns the shipowner into an underwriter for account of the passenger. It does not state precisely whether the indemnity insured shall be paid in full in case the acival damage should not exceed the figure provided for the:event
where the deceased passenger would not leave any rela7 tives to whom his death might be a cause of damage. If its object is to transform the shipowner into an underwriter, it would be excessive; and art. 13 further decides wrongly that the shipowner may act as agent of approved under-
writers, so that one cannot say whether the additional indemnity shall be legally to be borne by the shipowner., or whether the latter will merely act as an insurance agent. These are the remarks as to detail to which the study of the Convention has given rise. They are submitted to
the International Maritime Committee, in order that it may examine them at its Genoa Conference. GEORGES RIPERT, 'Professor at the Paris Law University and the Institute of Political Sriences.
- 198
SUGGESTED A LT ER ATIO N S.
Replace article 4 ,by the following text « ART. 4.
Such insurance shall cover the risks of
accidents causing the death of, or personal injury to, passengers, and the shipowner will be held personally liable for the payment of the indemnities, whatever may be the cause of the accident, even in case of negligence on the part .of the passenger. In the case of death, the indemnities shall be paid to the assigns, as determined by the law which regulates the rights to his inheritance. »
(( ART. 5. -- To add to this article » No action may; under the same conditions and with reservation of the same exception, be enforced against the carrier by an assign or a relative of the passenger, alleging to act for account of the deceased, or in his own right and in respect of the damage which should be caused
to him by the death of that passenger. » To add to this article » In case he has issued an insurance policy, the shipowner shall nevertheless remain liable towards the passenger for the payment of the insurance indemnity if, for any reason ,whatsoever, the underwriter should not pay the indemnity stipulated. » « ART. 9.
FRANCE FRENCH ASSOCIATION OF MARITIME LAW REPORT on
Immunity of State-Owned Ships DY
GEORGES RIPERT Professor at the Paris Law University and at the School of Political Sciences.
The French Association of Maritime Law had present-
ed, in regard to the draft laid before the Gothenburg Conference, a certain number of observations which they considered as sufficiently important to justify an amendment to said draft.
The French Association had no means of defending the conclusions of that report at the Gothenburg Conference, where it was not represented. It is all the more grateful to the Chairman and to the members of that Conference who were good enough to refer to the said report in their discussions, mentioned, in the course of their proceedings, the suggestions made by .the French Association and amended the draft treaty in accordance with part of those suggestions.
In view of the forthcoming Genoa Conference, the French Association now beg to offer the further following remarks :
The adoption of a new article 4 does away with the principal remark made by the French Association. It is specified by that Article that the provisions of the Convention will only be applied in every contracting State if the claimant is a citizen of one of the contracting States. Of course, there is nothing to prevent a contracting State (and it were perhaps advisable to state so in article 4) from adopting the same rules in respect of its OWIl citizens sueing that State before its own Courts. The provision relating to the application of the ConI.
vention, as proposed by the French Association, was based upon the similar proviso which was adopted by the Brus-
sels Convention of 1922 on Lhnitation of Shipowners' Liability. The rule adopted at Gothenburg is as broad as possible, so as to extend its application..It suffices that the creditor be a citizen of one of the contracting States. But, at present, in the new wording drafted in 1923 for the Convention on Limitation of Shipowners' Liability, this Convention only applies when the ship, in respect of which the liability arises, is registered in one of the Contracting States or operated by such State. It seems that a similar correction ought to be introduced in the draftConvention on Immunity of State-owned Ships. On the one hand, indeed, this draft-convention deals with the obligations and liabilities of the State; on the other hand, it also concerns the right of arrest of the ships. Under these two heads, it would seem more advisable to confine itS application to ships belonging to one of the contracting States and to cargoes owned by such State. We therefore must propose again a modification of the scope of application of the Convention.
- 201 II.
The Gothenburg draft-treaty refers to the lia-
bility and obligations of the State in respect of claimants
whose claims relate to the operation of the ship or to the cargoes.
By this provision also, the draft-treaty has taken into account the remarks of the French Association, since the rules set forth are not in favour of all creditors generally, but of maritime claimants only.
There remains nevertheless the fact that the terms « liability » and « obligations n are very broad expressions. There seems to be no doubt that with such wording,
the Convention will apply to the obligations relating to the liability for collision or the obligation of salvage at sea, which have been regulated by previous Conventions. It would therefore be necessary to state to what extent the new Conv-ention completes the previous Convention and abrogates the articles of the latter which excepted thereof State-owned vessels. For instance, will the limitation of maritime liability apply henceforth to Stateowned ships? This is a question which may arise, and has not-been solved so far. It is all the more necessary to solve it, as under the present provision of article 4, the Convention on Immunity of State-owned ships has a wider scope than the previous Conventions. From this standpoint also, we wish to observe how much this article 4 lacks logic, be cause the provision it enacts does not accord with those adopted hitherto. The wording of article 2 ought to be rendered more precise. In the original draft, there was only ques-
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'don of the arrest of the ships; but at present, it refers to all the liabilities and obligations of the State arising out of the operation of the ship. Article 2 applies to the claims of the parties inter'ested the same rules of jurisdiction and of procedure as in the case of private owners of trading vessels. It should therefore be clearly determined that the claim of the creditors can be enforced only on the ships and on
their cargoes. But in France, the action of the creditor is not an action in rem. It is against the State, and not against the ship, that judgment will be given. Therefore, the formula of Article 2, if not rendered more precise, will surely give rise to objections.
The exception contained in article 3 does not appear to us to be sufficient. As regards ships, there is one general formula : ships IV.
employed on governmental, non-commercial service. We
had suggested « on public service )); but after all, the word used does not matter so much, since an agreement has been arrived at as to the principle. For cargoes, however, article 3b excepts cargoes carried for an exclusively goi, ernmenial purpose, only when they are on board of State-owned or State-operated ships. Now,
the consideration of the ship used for the carriage has no importance whatever, in the case, for instance, of an arrest. No State is likely to admit arrest of cargo intended for a governmental purpose, even if it should be carried
on board a merchantman. We had already made this remark. If no account has been taken of same, this was doubtless because nobody was thinking of the arrest. We
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repeat that it seems impossible to have it admitted in France that any creditor, even a maritime claimant, should be allowed to arrest cargo intended for a governmental non-commercial purpose.
We consider it necessary to request, on these various points, on alteration of the wording adopted at V.
the Gothenburg Conference. A Convention wbich touches the rights or the prero-
gatives of the States, will be adopted easily only if it clearly indicates what is the precise abandonment of their immunity which the States are required to agree to. We call the attention of the Conference to the peculiar position of countries which, like France, have an administrative law altogether distinct from public law, and a special administrative jurisdiction. A Convention will only have a serious chance of getting ratified if it does not interfere with this separation of laws and jurisdictions, which is considered as fundamental.
SUGGESTED ALTERATIONS.
To add to article 1 The provisions of the Conventions of 1910 and 1922
are altered in so far as they excepted all State-owned ships ». To alter this article as follows ARTICLE 2.
« Actions in virtue of such liabilities
and obligations shall be enforceable by the tribunals who,
under common law, have jurisdiction over, and by the procedure applicable to, private owners. But the creditor who obtains judgment cannot arrest the ship or the cargo in respect of which his claim arose ». To strike out in article 3b the words «Oil vessels owned or operated by the State ». ARTICLE 3.
ART/CLE 4.
To alter this article as follows
o The provisions of this Convention will be applied in every contracting State in the cases mentioned in ar. ticle I, when the ship is owned or operated by a contracting
State or when the cargo is the property of a contracting State. »
BELGIUM BELGIAN ASSOCIATION OF MARITIME LAW
Compulsory Insurance of Passengers REPORT BY
r J. GESCHÉ Advocate to the Brussels Court of Appeal.
The Commission included : Messrs Albert Le Jeune,
chairman, Bauss, Ant. Franck, Alex. Van Opstal, de Bosschere, Hennebicq, H. de Vos, J. Drory, C. Smeesters, F. Sohr and J. Ge3ché, Secretary-reporter. At the first meeting, the proceedings were open.ed by
an historical review of the question by our General Secretary M. Frédéric Sobr. The problem of Compulsory- Insurance of Passengers
has been before maritime circles chiefly since 1913, owing to instructions given by the Governments represented at the Brussels Diplomatic Conference. The folloNving year, after the « Titanic )) -disaster, the interest for the problem has become still greater. The study of a system of Compulsory Insurance of Passengers, and namely of Emigrants, was commenced.
After the war, in 1919, in consequence of the International Labour Conference of Washington, the treatment of emigrants has become the chief concern.
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The International Mari time Committee entered into communication with the International Labour Bureau and has studied the question, taking duly account of this origin. The Belgian Association was also of opinion that the scheme of Compulsory Insurance should be limited
to emigrants. At the Gothenburg Conference, in 1923, however, the shipowners brOught forward serious arguments against a dual system of liability and expressed the wish that the insurance should extend to all passengers. The Special Committee appointed for the purpose of
examining the queslion, met in Paris in the course of 1924; and its conclusion vv-ith certain reservations however on the side of France and Italy was that there should be organised a system of insurance including all passengers and all cases whatever, whether accidental or involving liability.
The task of the present Commission is to examine a draft of international Convention, prepared by the Paris Sub-Committee on the basis of a previous draft by Sir Norman Hill. At their first meeting, our Commission recorded this change of opinion and approved same by way of a declaration stating in substance : « Taking due heed of the
movement which formed itself after the Gothenburg Conference, the Commission does not make any opposition to the extension of the insurance to all passengers. n
Mr De Vos, Director of the Department of Marine, stated semi-officially that he did see no fundamental objection to the draft. Before examining and- discussing the various articles,
a general remark was made relating to the nature and the juridical scope of the draft. The Commission found that, as regards liability, the Convention makes a clean sweep of the common law principles. The shipowner will be liable in all cases and shall pay the amounts to be determined. This is the fundamental conception of the new draft. Whether there be acts involving his liability, or whether
there be events altogether beyond human control, the carrier shall be bound to pay compensation within the limits fixed.
But, once this new principle is admitted, a return is made to common law with regard to dolus or culpable negligence, ihe consequences of which would not be covered by insurance but for which the shipowner will remain subjected to the ordinary principles as to liability. In other words, by the insurance which the passenger contracts compulsorily, he loses his legal remedy under
common law, except in two cases : dolus or culpable negligence of the shipowner personally. The juridical skeleton of the draft appears as a compulsory insurance entwined with a commun law responsibility.
The Chairman then read each article successively.
Article I. Contains the definitions. No remark was made.
Art. II. It is understood that in the first sentence, « Every shipowner shall insure all passengers against all
risk of death... », the verb o insure » means that every
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shipowner is an Insurer by right. This is also the meaning of similar words, such as the verb « indemnify » used in article IV.
Art. IV. The words « wilful misconduct » do not correspond to any definite notion in Belgian law, unless it be made clear that by the French words « faute intentionelle » is meant « dolus » and that (< faute inexcusable » refers to « faute [(urde ». In the opinion of the Commission, art. IV is intended to exclude the shipowner's liability in all cases where death or injury are brought about by the « dolus » or gross negligence of the passenger himself.
Art. V. This provision decides that notwithstanding the lump-indemnity system, the shipowner shall remain liable under common law in cases where injury is caused by his a dolus » or culpable negligence.
The Commission propose to add that this refers to the owner himself, but not of any of his servants. The object of this article, therefore, is that in addition
to the insurance, the passenger shall have no right of action against the shipoi,vner, because he is entitled to a lump-indemnity, but that he is nevertheless at liberty to sue either the shipowner or any other party having caused the damage by his culpable negligence or « dolus ». Art. X. The Commission suggest that, at the last paragraph, there should be added the words a or latest news received » so that it would read as follows « All claims arising either from personal injuries or
from death shall be barred unless action be instituted
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within twelve months after the date of the accident or of the latest news received ».
Art. XV. Some anxiety was expressed about the shipowner's solvency and the question was raised whether, by delivering the certificate purporting, that such shipowner is in a position to pay any claims which may be made by passengers, the Government, issuing such certificate, incurs any pecuniary liability. As this question was solved in the negative, the Commission exp'ressed the opinion that in practice the solution fo prevail will be that in which the shipowner insures with an Insurance' Company or with individual Underwriters 'approved by the Government. The certificate attesting that such precaution has been taken, although it be based on a mere statement of fact, the proof of which is of the simplest and without risk or error, will however not bind the Governments delivering it. As to the certificate stating that the shipowner is in a position to pay, that will really be delivered only very seldom in isolated cases, in respect of certain companies, by certain Governments and even then with the reservation of the provision confained in S, 3. This 6 3 gave rise to the next important remark, rela, ting to the question of reciprocity.
The purpose of this paragraph seems to be that by merely adhering to the Convention, the governments shall be bound to accept the certificates issued by the other States, whereas in fact the actual object of the draftsman was to provide that every State will be at 14
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liberty to accept or not to accept certificates stating that any such shipowners are in a position to pay the amount' of claims Nvhich might arise. Therefore the following wording was suggested : « The contracting governments shall not be bound to accept such certificates ». This is one more reason to hold that in fact, the first system, accord-
ing to which the shipowner takes out an insurance covering him against the burdens he undertake in respect of the policies he himself issues, will be followed more gen erally.
In the course of its second meeting, the Comtnission considered the figures to be fixed in the schedules A and B. Various solutions were considered. Every State could put forward rates of compensation computed in harmony with its own law on Labour accidents. But this would refer the whole task of an adjustment to the Conference, which would be confronted with the most strange divergencies to find in the end that the value put upon human life is far from being the same everywhere. A second system which could be resorted to formulate a proposal would be to fincl out what is the average figure granted by the Courts in a great number of claims based upon cases of liability. Belgium cannot rely upon this method which requires the study of statistic data extending over a very conside-
rable number of cases, because in Belgium no such statistics are available. Such work can only be undertaken efficiently by a great sea power which would find in the practice of its own Courts the necessary information.
- 2H Thus, we arrive at a third method which found general favour. In order to achieve practical work, the Commission will suggest a figure to be submitted to the Conference. But it can only fix such figure in a manner wholly
provisional. In fact, this should represent a lump-sum compensation and there can be no question of an adequate indemnity; this means that however hard one would try, the figure will always be more or less arbitrary.
Starting from the fact that at the Gothenburg Conference, it was proposed to assess the amount insured in the case of death at ±:150; that this figure does represent the average compensation granted in the case of negli-
gence; but that, in the general economy of the draftconvention, the insurance also covers the case of accident, the Commission is of opinion that it would be reasonable
to bring that figure down to £100, so as to come within the logic character of a lump-sum compensation. It therefore proposes to take as a basis in the case of
death the figure of £100, and to lower to 2/3 of the amonnts proposed at Gothenburg the figures in respect of the cases provided for in the schedule. On behalf of the Commission
The Seereiary-reporter. J. GESCHÉ.
BELGIUM BELGIAN ASSOCIATION OF MARITIME LAW
international Code of Affreightment REPORT BY
CONSTANT SM E ESTERS Advocate, Member of the Supreme Council of tl urine.
I. Carrier's Obligation in Regard to Seaworthiness. Should the provisions of Articles 3, Sect. 1 and 4, Sect.
1, of the Intertiational Convention upon billS-of-lading be extended to cover contracts of affreightment which are .not within the scope of the said convention ? Yes, these provisions should be extended to the contract of affreightment. As « beginning of the voy-age » should be considered the time when he cargo is put on board.
Responsibility of the Shipowner towar(ls Billof-Lading Holders or Sub-eharterers.
II.
a) As to the question of unseaworthiness of the ship, the sub-committee has examined the three following ideas The Affreightment Commission included : M. Louis Franck, chairman;
Messrs de Brouckere, Henson, Jussiant, Kort, de Groote, de Bosschère, Dens, Descamps, Sheid, Smeesters, Sohr, Varlez, Voet, Van den Bosch.
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The shipowner incurs no further responsibility Whe.n .he has once discharged his initial:duty in regard to seaworthiness at the commencement of the charter. The shipowner is responsible to holders of bills-oflading and sub-charterers in respect of unseaworthiness unders:ood in the strict sense of inability to keep the sea. The shipowner is responsible in every case in which the charterer is himself responsible tO the holder of the bill-of-Iading.
Which of these three views should adopted ? If the responsibility of the shipowner should be preserved', should it be a joint and several liability or a liability in default on the part of the carrier ? b) As to the acts of the captain Is the shipowner responsible for these acts and to what extent ? Should there be a distinction between commercial errors and nautical errors ? Should there be a distinction according to whether the captain is appointed by the owner or by the charterer, and whether or not the charter amounts to a demise ? -
If distinctions are to be made, how should the provisions of the International Convention be applied as regards the lien upon the ship in respect of claims arising out of the bill-of-lading ?
The question to be solved is, after all, whether in the case of a time-charter, the bearers of bills-of-lading may, in view of protecting their rights, enforce a remedy against the ship itself.
No doubt, at first sight, the original chartercontract is eóncluded between the shipowner and the principal charterer; another contract is passed between the principal
charterer and the sub-charterer; these two contracts are distinct and independant the one from the other, so that there is no legal connection between the sub-charterer and the shipowner. He has passed no contract with him, he has undertaken no direct obligation against the shipowner and has no claim against him either. But when studying maritime affreightment, care must be had always lo draw a clear distinction between the charter party and the bill-of-lading. If the charter-party is the instrument embodying the agreement between the shipowner and charterer, the bill-of-lading represents a document « to order », that is to say a negotiable document of title entitling its bearer to the delivery of the goods; and
such document is at the very root of all international traffic.
Now, to the bearer of the bill-of-lading the charterparty itself is foreign matter. No doubt, he is so to say merely the assign of the charterer, but he has acquired full
rights of his own by virtue of a new document of title issued by the master. Then again, the master, is, according
to law, the representative of the shipowner ; being the 0 master, under God, of the ship », he represents that ship in the eyes of third parties. When he signs, he binds the ship.
The bearer of the B/L therefore should be able to enforce his rights against the ship, and that is the reason why the International ConventiOn confers a lien in favour
of claims resulting from the B/L. If the bearers thereof
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have a lien on the ship, it is because they have a claim against the shipowner. This solution is a logical necessity. Besides, the shipowner. who hires out his vessel must foresee that the charterer will trade with it and that billsof-lading will be issued. He therefore has to take the necessary guarantees as against his charterer.
He generally will do so by stipulating in the charterparty that the charterer shall indemnify him against any claims which may arise owing to the signature of bills-oflading.
We think therefore that the solution of the problem may be summarised as follows The shipowner is liable only towards the principal char-
terers within the limits of the obligations he has undertaken. He is further liable towards bearers of Bs/L for the whole extent of the right conferred by said bills-of-lading. There then remains the question whether, towards the bearers of bills-of-lading the shipowner is liable jointly and severally with the charterers, or only in default on the part of these latter. Here, a distinction is to be made : is the bearer of the
B/L also the sub-charterer ? In such case, there will be two actions.
In his capacity of sub-charterer, under his charter-contract, he may take his remedy against his co-contracting party, viz the principal charterer. As bearer of the B/L, he may proceed against the master, against the ship, against the shipowner. He has a double action, tendin,g to the same Object. He has two debtors, liable both for the whole, in solidum. But, in the strict and legal sense, this is not a joint liability. If the bearer is no party to the sub-charter, he
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will only have a remedy against the master, in the latter's legal capacity, thus against the shipowner. The solution which we recommend includes the anSwer
to the two last questions of this section. Towards the bearers of the bill-of-lading, the shipowner is responsible
in respect of the master's negligence, whether in the navigation or commercial management, without there being any distinction as to whether he himself or the charterer appoints the master; and the provision of the international Convention establishing a right of lien on ihe ship in favour of claitns resulting from the bill-oflading, logically and automatically applies.
Letters of Guarantee. Would it be wise to forbid the issue of letters of gua-
rantee or indemnity as, for example, in the terms of Article 7 of the draft-treaty of London ? The practice was condemned by a resolution of the International Shipping Conference (May 1924). On the 22nd June 1925 in Brussels, the following reso-
lution was passed by the Sea-Transport Section of the International Chamber of Commerce : The Committee is of opinion that the practice of requesting clean billsof-lading against a guarantee, when it is known that the B/L is false, is a menace for all honest merchants, should
be condemned as dishonest and punished when discovered.
The Commission endorsed this view. It is well known that shipowners think they may, with.:
out being subject to criticism tending to doubt their honesty, issue letters of indemnity in the following cases:
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a) when there is a dispute as to numbers, weight or measures; b) when there is any doubt about the condition of the goods, for instance when they do not know whether the goods presented for shipment are to he con-
sidered or not as being already used, according to the custom of the trade, or whether, always under the commercial custom, the wrapping or packing are to be considered as defective or inadequate.
The Commission was of opinion that, even in such doubtful cases, the practice of issuing letters of indemnity should be condemned. Indeed, on the one hand as regards
the tallying of numbers, the banks or buyers wóuld not be justified in refusing bills-of-lading with a clause stating that there is a dispute as to the number, weight or measure.
On tine other hand, when there is any doubt as to the condition of the goods, it -would be proper that the shipper should get it decided by the Courts, by means of a quick procedure, such as a reference to the President
whether or not the master is entitled to insert in his billof-lading a clause in regard to wrappings or condition of the goods. Mr de Bosschere, on behalf of the Belgian Shipowners' Union contested the advisability of inserting into an international Convention a provision condemning in a general
way the issue of letters of indemnity. It may be added thaz a jurisprudence is now being evolved, which, in cer-, tain cases, admits that letters of indemnity are unlawful: IV.
Through-Bill-of-Lading.
1) Ought the provisions of Article 50 of the drafttreaty of London to be adopted ?
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In Sect. 2 of Article 50, the last words, « or the intermediate carrier », should be understood to mean, « or the intermediate carrier whose liability has already been established ».
2) How are the provisions of the International Convention of 1924 on bills-of-lading likely to operate on through-bills-of-lading, especially when there is a different maximum liability in respect of sea and land carriage?
It would seem that the joint liability of all the carriers should be admitted. On this point, the liberty of contract ought to be respected. -So for instance, we ought to consider as lawful any provisions in a contract to the effect that each carrier is only responsible for the loss or damage occurring whilst the goods are in his custody. It should be u.nderstood that, even under a throughbill-of-lading, the Convention on Bills-of-Lading can only apply in respect of the sea-portion of the voyage, as it is stated in said Convention.
Distance Freight. Is it possible to regulate ihe question of distance freight by international convention ? If it is possible to regulate this question, ought the principles of the draft-treaty of London to be maintained (Articles 25 to 34)? It is beyond doubt desirable to regulate by internaV
tional Convention the question of distance freight. But in view of the discussions to which the computation of dis-
tance freight must needs give rise, it seems to us to be desirable to r'estrict to a very limited number of cases the application of distance freight.
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There may no doubt occur some case in which payment
of distance freight to the shipowner can be justified. Owing to an accident of the sea, or any such fortuitous occurrence, quite .independent from any negligence of the master, the ship is unable tocontinue on her voyage when having arrived near to her destination. The owner of the cargo can thus, at very small expense, bring the goods to their final destination. It would be unfair indeed
if he could derive a profit from the distance already covered without paying therefor any compensation to the
master. In all fairness, he has to pay to the latter the freight agreed upon, under deduction of the new freight and of the expenses incurred for reforwarding the goods to their destination. This is the solution admitted by Bel-
gian law (art. 139 and 192) though it has suppressed distance freight. It is likewise the solution suggested by the Scandinavian draft; with which we concur. Distance freight, therefore
shall not be calculated in proportion to the actual distance effected, for such computation would be unfair. It cannot be said that the consignee derives from the carriage of the goods a profit which is proportional to the distance effected, Distance freight, such as we conceive it, is based
on the idea of equity that the consignee ought not to acquire a profit at the master's detriment. But we consider that in such case the master should
have the option or chartering himself another ship in order to continue the fulfilment of the contract. In such case, it is understood that the consignee would only have to pay the freight agreed upon.
Thus, distance freight shall only be due when the
goods reach their destination. If they are lost on the way, even through an accidental cause, no freight is payable, and in such event 'there can be no question of paying a pro rata freight to the sliipowner. Likewise, when goods do not reach their destination, either because they are damaged owing to their inherent defect and had to be thrown overboard, or because they were sacrificed in general average, or were sold in order to provide for the needs of the venture, the whole freight
will be payable. Indeed, if non-arrival is owing to the inherent defect of the goods, their owner shall not be able to avail himself of the circumstance to escape payment of the freight. Where the goods are sacrificed in .general average or for providing for the needs of the venture, their owner shall be refunded for their value, and will find himself in the same position as if he had received the goods; therefore, he has to pay freight,
Time Limits and Prescriptions. Ought not Article 5, Sect. 3, of the International VI.
Convention upon bills-of-lading to be adopted in respect of all actions for loss or damage to goods, and ought not this rule to be preferred to the rule contained in Article 47 of the draft-treaty of London ?
Ought the period of limitation of actions arising out of carriage by sea to be one year (International ConVentinn 1924) or two years (Article 48 of the draft.
treaty of London), or is there ground for making a distinction between the various kinds of action ?
We consider that the provisions of the International Convention in respect .of all claims for loss and damage,
221
are perfect, and prefer them article 47 of the London draft
The provisions of the International Convention are now in force in Belgium, and have given full satisfaction, in practice, to the parties iOterested. We are also of opinion that the delay of prescription for
all actions derived from the contract of carriage by sea ought to be one year. In view of the facilities afforded by modern communications, this delay-is certainly amply sufficient for enabling tbe parties concerned to institute legal proceedings, and it is desirable not to keep in sus-
pense the settlement of operations relating to carriage by sea. VII.
Liens on Goods.
I) What are the liens upon goods which the captain ought to have for payment of freight ? What liens should there also be upon the goods in respect of demurrage, contribution in general average, salvage, or for e:ipenses in preserving the goods ? What priority is it possible to make between these different liens ?
The master has contracted with charterers, whose solvency he cannot appreciate. It is therefore obvious that the goods themselves ought to guarantee to the master the payment of the amounts due to him in respect of the carriage of such goods. The « Consulat de la Mer » grantM
to the master .a right of retention. This same right is acknowledged by the German legislation, by the .Scandinavian laws and by English law. In the countries where.
Roman law obtains, the right of retention is not existing. (France, Belgium, Spain, Portugal, Rumenia, Italy.) We think that the right of retention, strictly applied, cannot be justified. The consignee cannot be held liable to pay freight before he has been able to verify the condition of the goods, and such verification in practice can only be done efficiently at the time when the goods will be delivered. Therefore, it is not possible to decide that, until payment of the freight, the master can retain the goods on board and decline delivery. But on the other hand, the shipoNvner can, in a good many cases, be frustrated if he delivers the goods before pay-ment of the freight. So, another solution must be found. The French legislation (art. 306-2 Code of Commerce) empowers the master to leave the goods into the hands of a third party, either in a warehouse, or with a consignee. For this purpose, the master lodges an application with the President
of the Commercial Court, who may not decline such consignation. The Belgian legislation (art. 124) grants to the master this identical right. Such provision ought to be enacted by the International Code. Prac ically, it enables the master to require either the Payment of the freight, or at least the deposit of the freight before delivery of the goods to the consignee, for if the consignee does not agree to give satisfaction to the master, the latter will threaten to apply for the appointment of a trustee who will take delivery of the goods and keep these until freight be paid. This provision does pro-
tect sufficiently the possessory lien granted by British
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law and by the Scandinavian legislations and may therefore find unanimous acceptance.
It will be advisable also to stipulate that the order appointing a trustee or a consignee, shall grant to the latter power to sell the goods, if need be, up to the amount of freight due.
Then there arises the question whether in such case the consignee may oppose the recourse to such measure, or at least stop its effects by supplying bail.
In the evolution of modern law, and under the pressure of practical requirements, the right of supplying bail has been extended considerably. If the consignee, though he has not yet received the goods, is of doubtful solvency, offers solvent bail, in such a manner that the master has no longer to fear remaining unpaid, why indeed should the master be justified in declining to deliver the goods. In our opinion we ought to decide that the consignee is entitled to receive the goods, provided he gives bail; but ii should be within the discretion of the President of the Commercial Couri to appreciate whether the bail offered affords sufficient guarantees of solvency. Thus the Judge, before whom is brought the application for appointment of a trustee, or who has appointed such trustee, will have
to appreciate whether such measure should be ordered or recalled in case the consignee offers sufficient bail. If the master has obtained bail, he has no reason to enforce the exercise of a lien on the goods, and such measure appears therefore as in favour of the shipowner who, otherwise, might get involved into a distribution by way of contribution and will have to enforce his title to a lien.
If no bail has been given, and if the consignee fails, after all, to pa' the freight, the master will have no other security than the goods. Here, his interests may clash with those of other creditors. Should a lien therefore be oTanted to him ? AH legislations grant to the shipowner a lien for payment of freight. This lien is based essentially upon the notion that the carrier, by bringing the goods to a given place, has increased their value. But, though there is general agreement as to this, yet. numerous divergencies do arise as to whether the shipowner's lien ought to be extended to demurrage, deadfreight, general average contribution, &c. Here indeed, the rights and interests of the shipowner must be in harmony with those of bill-of-lading bearers, who deserve all respect. The c.i.f. buyers, their bankers should be enabled in complete safety to base their transactions on the faith of the bills-of-lading. If a claim has come hito existence at the port of loading, in respect of demurrage or of dead freight, nothing is so easy as to mention this on the billof-lading. If such document is issued « clean », it would be contrary to logic and quite unfair to allow the master to claim payment of such amounts from the consig,rnee. Besides the latter has, in -virtue of the bill-of-lading the right to demand delivery of the goods against payment of the amount mentioned on that document. Other obligations cannot be laid upon. him. We therefore cannot allow the master any lien in respect of demurrage incurred at the port of loading and dead-freight, unless these be specially mentioned in the bill-of-lading.
As to demurrage incurred at destination, we fail to see how a lien therefor could be justified. It should be observed that when discussing the liens, the question is whether any preferential right should be allowed to the
one or the other creditor, that is to say whether there are sufficient reasons for allowing one claimant to rank before the others, with the consequence that the creditor who has a lien may take away perhaps the whole value of the thing on which the lien attaches, whereas the other creditor would lose the whole of their claim. Such pre-,
ferential treatment can only be justified in favour of a creditor who has been of service to the aggregate estate by increasing the value of the property, or of a creditor
whose intervention should be favoured, for reasons of humanity. The lien on freight is justified, as we have stated already, because the carriage of the goods to a specified place has
enhanced the value of the thing; but in what way can demurrage have increased the value of the goods ? There is no rational basis for such lien. Besides, bills-
of-lading generally confer to the master the right of discharging ex officio if the consignee does not come forward, so that the master, if he has the least doubt as to the solvency of the consignee, may discharge the .tpouods himself and avoid demurra.e.
It goes without saying that the master's claim in respect of salvage expenses, of cost of preservation, or general average contribution, should have the advantage of a lien, since in these cases, the cost incurred by the master have
increased, or at least preserved, the value of the things on behalf of the general estate. 15
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Therefore, a lien should be granted for freight; for general average contributions; for salvage and preservation expenses. The classification of these various liens should be made as follows claims for expenses of salvage and preservation; contribution to general average;
e) freight. If there are several claims in respect of salvage or preservation, or in respect of general average, they will rank in the inverse order of the dates at which they have arisen.
It should be added that the lien should attach not only on the goods themselves, but also on its accessories, namely any indemnities which may be due to the goods by reason of general average. VIII.
The Law applicable to Contracts of Carriage. Solution of Conflicts of Law.
If no complete international unification of the rules governing the contract of affreightment can be arrived at, may it not be possible to frame an international rule for the purpose of solving conflicts of law in determining the law applicable to any given contract ? Shotild such law be The law of the ship's flag ? The law of the port of embarkation ? The law of the port of discharge ? Or the lex loci contractus ? e) Would it be possible to adopt a single rule to apply
227
to all matters of conflict, or would it be more suitable to make distinctions between different parts of the contract of carriage ?
The very object of the elaboration of an International Code of Affreightment is to unify the legislations and do away with conflicts of law. It would therefore seem strange to introduce into this Code the method of solving conflicts which may exist between different legislations; but as it is not very probable that a complete international unification of all the rules of the contract of affreightment be arrived at, the possibility of conflicts between the various legislations will always remain and a real progres would be achieved at any rate if, failing adoption of one complete international Code, a uniform way of solving conflicts of law could be agreed upon. In our opinion, it is not possible to decide that all difficulties which may arise will be regulated by one and the same legislation. No doubt, the application of the law of the flag to international conflicts on maritime law, appears
as a very tempting solution. It is fully justified when rights in rem burdening the ship itself, mortgages or liens,
are concerned. In such case, the solution intrinsically refers to the a res » and it is only logical that all interests involved into competition concerning the division of the g res » should be subjected to the law go-verning the res itself; but we could not agree to such an all too simple solution in matters of contract. This would indeed disturb, in favour of the shipowners, the equilibrium of a synallagmatic agreement, by solving any difficulties by
means of the application of the national law of only one of the contracting parties. The ship is essentially- an instrument of world-wide range. Its owners have necessarily an international organisation and are represented by agents or attorneys in the varous countries. The owner has to enter into contracts in all countries of the world. When he contracts in any given State, he is supposed to know the legislation of that co'untry, the mental conceptions of those with whom he contracts and, consequently the meaning and the construction to be put upon the provisions stipulated on both sides. It seems logical to adopt the rule obtaining in most countries, under which the contract, in its most
essential parts, is to be regulated by the /ex loci. The owners, who have a representative at the place where the contract is entered into, cannot complain of the application to such convention of the law of the country where he signed a charter-party. But the legal connections which arise out of a contract
of affreightment are too intricate for referring always and in all cases whatsoever to the /ex loci contra,ctus.
Therefore, if the bill-of-lading (loes not contain any reference to a charter-party, on what grounds then should the bearer of the bills-of-lading, who does not even know
in what country the charter-party was signed, have to submit to a.legislation, ale application of which nothing -enables him to suspect.
The bill-of-lading bearer can in such case, only be bound by the law obtaining at the port of loading or at the port of destination.
It should be observed that it would be of the highest
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interest to apply to the carrying out of the contract of carriage by sea one single legislation. The owner especially is interested in having his charter-party regulated by a uniform rule; but he himself ought to provide for his protection by stipulating in the bill-of-lading : « All other conditions as per charter-party ». In such case, the
bearer of the bill-of-lading, in order to appreciate the extent of his rights and obligations, has to obtain cognizance of the charter-party, and will thus have the necessary information. There is a further reason why it is impossible to apply a uniform rule. It is obvious that the delays fixed for the duration of lay-days, the measures to be resorted to in the event of damage or shortage, are determined by taking into account the special organizaion of each port. How could a consignee be compelled to discharge a ship at Hong-Kong in accordance with the rules and customs established at Havre or at Rotterdam ?
As we observed before, the ship is by its nature an instrument of an international character. The owners, whose traffic is worldwide, must necessarily adapt themselves to the requirements and peculiarities of the laws obtaining in the countries with which they want to trade. We think the conflicts arising as to lay-days and de-
murrage should be regulated by the law at the port of loading and at the port of discharge, as well as all forms and formalities to be observed in those two ports, and we beg to suggest the following rules
1°. Unless otherwise provided in the contract, the charter-party, in respect of the construction of the respective rights and obligations of the shipowner and the char-
terer, shall be subjected to the lex loci contractus, the following cases however being excepted
2°. The operations of loading and discharge related thereto : lay-days, rate of demurrage, formalities, protests, survey of damage, mode of payment of freight, are regulated by the.laws and customs obtaining respectively
at the port of loading and the port of discharge unless otherwise provided in the charter-party towards the consignee.
3... General average is regulated by the law of the place where the general average settlement is prepared. 4°. Unless otherwise agreed, the bill-of-lading is regulated by the law of the place where it has been signed.
5°. The preceding provisions do not prejudice the statutory provisions .declaring null and void such clauses and conventions.as are'forbidden by law.
UNITED STATES OF AMÉRICA MARITIME LAW ASSOCIATION OF THE UNITED STATES
International Code of Affreightment At the Conference of the International Maritime Committee, held at Gothenburg, August, 1923, it was decided to prepare an International Code of Affreightment, and the committee, appointed for that purpose, has issued a
questionnaire in aid of the project which discloses its scope., It includes the carrier's obligation in regard to seaworthiness, the responsibility of the shipowner towards
bill-of-lading holders or sub-charterers, letters of guarantee, through-bills-of-lading, distance freight, liens on goods and their priorities, and the solution of conflict of law in relation to contracts of carriage. In our opinion a general code of such scope, if desirable,
is wholly impracticable at this time. It seems that international uniformity of law can be attained only by direct-
ing attention from time to time to particular subjects which admit of separate treatment. The Rules for the Carriage of Goods by Sea afford a practical illustration. When those Rules have become internationally effective it may be worth while to proceed further. For the Maritime Law Association, VAN VECHTEN VEEDER.
UNITED STATES OF AMERICA MARITIME LAW ASSOCIATION OF "r1-1E UNITED STATES
-Compulsory Insurance of Passengers Whereas, at the meeting of the International Maritime Committee at Gothenburg, in August, 1923, one of the questions considered was the question whether it would be desirable to organize, by means of an Internatio.nal Convention, a scheme of compulsory insurance of passengers carried by sea, in place of the present contractual liability of shipowners towards the passengers traveling on board their vessels; and
Whereas, it became clear from the discussion at the said meeting that the plan for compulsory insurance involved limiting the compensation recoverable by an injured passenger, or by the estate of a passenger who had lost his life, to a comparatively small ..sum, which would be only a small fraction of the amount which might be recoverable under the present American law; and
Whereas, it is the opinion of this Association that any such limitation of the liability of shipowners, in respect of the safety. of passengers traveling on their vessels, is contrary to the traditional attitude of the Governments
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of the United States and of the several states of the Union, on this subject; Now, therefore, it is resolved that while this Association
recognizes that certain advantages might accrue from a uniform scheme of insurance, by which passengers would
receive, without the expense of litigation, at least a moderate compensation, irrespective of the shipowner's negligence or liability, nevertheless, this Association does
not favor the plan put forward at Gothenburg, or any similar plan by which the existing rights of passengers traveling by sea would be surrendered or limited. For the Maritime Law Association, ROGER D. ENGLAR.
UNITED STATES OF AMERICA MARITIME LAW ASSOCIATION OF THE UNITED STATES
Proposed International Convention on Maritime Liens and Mortgages Resolution expressing the sense of the meeting of the Maritime Law Association of the U. S. held on May 8, 1925.
Resolved that the Maritime Law Association of the United States advise the International Maritime Conference to be held at Genoa in September, 1925, with respect to the proposed International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages » as follows
The difference between the theory of jurisprudence and procedure in maritime affairs as in force in the United
States and as in force in Great Britain and Continental Europe creates difficulty which may not be readily appa-
rent to the delegates from other countries. One of the foundations of our maritime jurisprudence is that the ship may be sued as the guilty thing for a maritime tort and for
breach of the contract of carriage. The right so to sue the ship is conditioned on the existence of a maritime lien against her, which is a property right in the ship herself and not merely a right to proceed against her. Therefore,
when we speak of a maritime lien enforceable by a suit
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in rem, we mean a legal right and form of procedure peculiar to our law. Although freque.ntly a ship may be arrested as an incident to a suit against a legal person, the procedure in such case is not based on a right in the ship herself, but merely on the right of 'attachment to secure the appearance in the litigation of the person sued.
The admiralty and maritime jurisdictión is vested by the Cons:itution of the United States exclusively in the Federal Courts as distinguished from the State Courts. There is high judicial authority for saying that the admiralty jurisdiction cannot be extended to non-mari7ime subjects even by the Congress of the Un'ited States, our Supreme Court having said, in substance, that the question of the true limits.of the maritime law and admiralty jurisdiction is exclusively a judicial question, and that neither an Act of Congress nor a State law can make the jurisdic-
tion broader or narrower than as deTermined by the judicial power. For this reason it is .not yet certain that the Ship Mort-gage Act 1920, providing for foreclosure of preferred mortgages on vessels, will be held valid by the
Supreme Court in so far as it ranks the mor:gage ahead of maritime liens, the Supreme Court having long ago decided that a mortgage on a ship is not within the admiralty and maritime jurisdiction.
Under our law neither the cost of watching nor the master's contract of employment gives rise to a maritime lien on the ship and the same may be said of damage done by the ship to docks and harbor works; with respect to such damage it is doubted whether legislation could create such a lien.
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These conceptions of our law make it proper that this Association should not unqualifiedly approve tbe proposed Convention.
This Association shares the general desire to grant to lenders on vessels all reasonable security and supports the purpose of the proposed Convention to state the rules relating to maritime liens and mortgages, so that the holders of such liens and mortgages will be assured that their relative positions will be substantially the same as between
themselves, irrespective of the forum in which the liens and mortgages are enforced. This Association does not favor the modification of American law in such way as to create new maritime liens not heretofore recognized by such law, or in such way as to impair or interfere with the rights now existing under such law to sue the vessel in rem.
This Association considers that the preferences to be given by the proposed Conventioù should not exceed those prescribed by sub-section « M » of the Ship Mortgage Act 1920, which section reads as follows
« Sub-Section M. a) When used hereinafter in this section, the term 'preferred mortgage lien' means 1) a lien arising prior in time ta the recording and indorsement of a preferred mortgage in accordance with the provisions of this section; or 2) a lien for damages arising
out of tort, for wages of a stevedore when employed directly by the owner, operator, master, ship's husband, or agent of the vessel, for wages of the crew of the vessel,
- 237 for general average, and for salvage, including contract salvage.
The section here quoted does not recognize as preferred over the mortgage a lien for damages arising out of
breach of contract of affreightment, although damages arising out of tort are so preferred. This distinction as to the preferred status of such contract and tort liens has not been universally approved in the United States. Opposition to ratification of the proposed Convention is possible unless it shall prefer liens for breach of contract of affreightment, in which case, however, opposition might alternatively be expected fro`m those who do not favor modification in this respect of the Ship ,Mortgage Act 1920.
GREAT BRITAIN BRITISH MARITIME COMMITTEE
Report on Immunity of Public Ships It will be recollected that at meetings of the Comité Maritime International in London 1922 and Gothenburg 1923, a Draft Convention was prepared on the immunity of Sovereign States in respect of their maritime property.
The Convention as drafted at the London Conference was considered by the Diplomatic Conference which met at Brussels in October 1922, but as it was apparent that the delegates of several of the leading maritime nations were without instructions from their Government, on this subject, it was decided to leave the Belgian Government, as convener of the Conference to ascertain from the parti-
cipating States their views as to the inclusion of the subject in the Agenda for a future Conference. The matter was again raised by the American delegate at a meeting of the Sous Commission of the Conference held at Brussels in October 1923, when the Draft as revised at Gothenburg, was before the Diplomatic representatives. It was agreed that the Report of the Sous Commission should contain a recommendation to the Belgian Government that they should ascertain the views of the
Governments concerned with a view to a Convention on the lines of the Gothenburg Draft.
-
239
The British Government in October 1923, submitted the Gothenburg Draft to the Imperial Economic Conference representing every part of the British Empire,. With certain minor alterations in form, which did not affect the principles which the Draft Convention seeks to establish, that Conference recommended that the Convention should be adopted throughout the British Empire. A copy of their resolution, which disclaims immunity on the part of the Governments of the Empire in regard both to jurisdiction of the Courts and liability to taxation, is attached.
The international Shipping Conference in 1924 in a Resolution, copy of which is attached, approved the Gothenburg Draft and called upon all maritime Governments to conclude and give effect to a Convention without delay.
Prior to the consideration of the matter by the Diplomatic Conference, the American and Australian Governments let it be known that in respect of tonnage owned by them, they would not in practice seek to claim Immunity, and this was confirmed by the representative of the
United States Shipping Board when speaking on the subject at the International Shipping Conference in
1924.
It is to be noted that the amended draft prepared by the Imperial Economic Conference meets with the approval of the British Government. Enclosed will be found
1) Copy of the Convention as drafted by the Comité Maritime (Gothenburg)
1923.
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Resolutions as adopted by the Imperial Economic Conference, 1923. Statement showing the alterations introduced into the Gothenburg draft by the Imperial Economic Conference.
Copy of Resolution of the International Shipping COnfere,nce, May, 1924.
For the British Maritime Committee, GEORGE P. LANGTON,
Secretary.
ANNEXES Immunity of Public Ships. Resolution Passed 17th August 1923 at Gothenburg.
ARTICLE 1. - Vessels owned or operated by States, cargoes owned by them and cargoes and passengers carried on such vessels; and the States owning or operating such vessels shall be subjected in respect of claims relating to the operation of such vessels or to such cargoes to the
same rules of liability and to the same obligations as those applicable to private vessels, persons or cargoes. ART. 2." Except in the case of the ships and cargoes mentioned in paragraph 3 such liabilities shall be enf or-
- 251
.....
ceable by the tribunal having jurisdiction over and by the procedure applicable to a privately owned ship or cargo or the owner thereof.
In the case of : ships of war and other vessels owned or operated by the State and employed only in Governmental noncommercial work; State owned cargo carried only for the purpose of Governmental non-commercial work on vessels owned or operated by the State such liabilities shall be enforceable only by action before the competent tribunals of the State owning or operating the vessel in respect of which the claim arises. ART. 3.
The provisions of this Convention will be applied in every Contracting State in all cases where the claimant is a citizen of one of the Contracting States, provided always that nothing in this Convention shall prevent any of the Contracting States from settling by its own laws the rights allowed to its own citizens before ART. 4.
its own. Courts.
Immunity of State-owned Ships. Resolutions of Imperial Economic Conference, held in Cictober and November 1923.
I. This Imperial Economic Conference, so far as it is competent for its members without prejudice to the rights of the State or Provinces of a self governing Dominion,
242 -
agrees with the recommendation of the Committee on the Liability of Dominion and Foreign Governments, etc., to United Kingdom taxatio» expressed in the following terms, viz
Any Government within the Empire, so far as it engages in trade, shall be treated as liable to the taxation of any other country within the Empire, in which it may either own property in connection with trade, or make trade profits; the liability of the United Kingdom Government or any Dominion Government so far as engaged
in trade shall be co-extensive with the liability of a private trading corporation in similar circumstances.
It is agreed that each of the several Parliaments of Great Britain, the Dominions and India shall be invited to enact at the earliest opportunity a declaration that the general and particular provisions of its Acts or Ordinances imposing taxation shall be deemed to apply to any com-
mercial or industrial enterprise carried on by or on behalf of any other such Governments in the same manner
in all respects as if it were carried on by or on behalf of a subject of the British crow». It is not contemplated that such legislation should have retrospective effect for any year prior to 1924. This Conference further agrees that, as soon as possible after the passing of the aforesaid legislation, negotiations should be opened with the Governments of foreign countries, in accordance with the recommendations of the aforesaid Committee. With a view to reciprocal agreemen.t between those countries and the Empire to the following effect : if or when the Government of a foreign country carries on trade in the United Kingdom or in a Dominion, and if
243
or when the Government of a country within the British Empire carries on trade in a foreign country, the trading Govermnent shall not, in its character as such, be treated as entitled to any sovereign immunity from taxation either directly or through the claim of superiority to the jurisdiction of municipal Courts: nor -shall a Government so trading be treated as entitled to any sovereign immunity from taxation in respect of property in the .other country concerned which it may own or hold in a trading capacity or in connection with trade. It is understood that, as the Committee recommend, it would he a proviso to the whole agreement that it should be without prejudice to the .na-
tional interests of a sovereign State in any emergency of war.
2. The conference further recommends tbat the draft convention on the hnmunity of State-oNvned ships adopted
by the Meeting of the International Maritime Committee
held at Gothenburg in August last, and amended after consultation between tbe British Admiralty and Board of Trade, should be- adopted throughout the Empire as the basis on which an international convention might be concluded. This amended draft is as follows IMPERIAL ECONOMIC CONFERENCE 1923.
Immunity of State-owned Ships. (Amended Draft : October 26th 1923.)
ARTICLE 1. - Vessels owned or operated by States for trading purposes, cargoes owned by them and cargo and
- '244 -
passengers carried on such vessels and the States owning or operating such vessels shall be subjected in respect of
claims relating to the operation of such vessels or to such cargoes to the same rules of legal liability (i.e., liability to be sued for payment) and to the same obligations as those applicable to private vessels, persons or cargo. Such liabilities shall be enforceable by the ART. 2. tribunals having jurisdiction over and by the procedure
applicable to a privately-owned ship or cargo or the owner thereof. ART. 3.
Ships of war, State yachts, Surveying Vessels,
Hospital ships and other vessels owned or operated by States and employed OD other than trading purposes shall continue to enjoy the respective privileges and immunities hitherto enjoyed by them by the comity of nations. Liabilities agaihst such ships in respect of collisions or salvage claims shall, however, be enforceable, but only by action before the competent tribunals of the State owning
or operating such vessels; and no such vessel shall be liable to arrest. Similarly, State-owned cargo carried for non-commercial purposes in ships owned or operated by the State shall not be subjected to seizure, but shall be
liable to process of Law, but only in the Courts of the State owning such vessels.
The provisions of this Convention will be applied in every contracting State, in all cases where the ART. 4.
claimant is a citizen of one of the contracting States, provided always that nothing in this Convention shall prevent any of .the contracting States from settling by its
245
own laws the rights allowed to its own citizens before its own Courts.
This Convention shall not be binding on a belligerent State in respect of claims arising during the period of bellingerency. ART. 5.
III
Immunity of Public Ships. Statement showing the alterations introduced into the Gothenburg draft of August 1923 by the Imperial-Economic Conference, October, 1923. (Words in brackets show additions to, words struck through show omissions from, the Gothenburg draft.)
ARTICLE 1.
Vessels owned or operated by States,
(for trading purposes) cargoes owned by them and cargoes
and passengers carried on such vessels, and the States owning or operating such vessels shall be subjected in respect of claims relating to the operation of such vessels
or to such cargoes to the same rules of (legal) liability
(e. liability to be sued for payment) and to the same obligations as those applicable to private vessels, persons or ettrgees-(cargo). ARTICLE 2.
(Such) liabilities shall be enforceable by the tribunal(s) having, jurisdiction over and by the procedure applicable to a privately owned ship or cargo or the owner thereof.
- 246 ARTICLE 3.
In tho ease of
a) ships of Welt citld uthri v
meit,UWILUL1 h nin,L a
d
-étrininerrial-work.
_Governmental nnn-eommprrial urnric nn vpcspl
owned
libiliJies shall be enfor. ceablo only by action before th the State owning .or opermieg the vessel in respect of
Ships of war, State yachts, Surveying (ArricLE 3. vessels, Hospital ships and other vessels owned or operated by States an,d employed on other than trading purposes shall-continue to enjoy the respective privileges antl im-
munities hitherto enjoyed by them by the comity of nations. Liabilities against such ships in re.spect of collisions or salvage clainis, shall, however be enforceable, but only by action before the competent tribunals of the State owning or operating such vessels; and no such vessel shall be liable to arrest. Similarly, State-owned cargo car-
ried for non commercial purposes in ships owned cooperated by the State shall not be subjected to seizure but shall be licible to proces.s of Law, but only in the Courts of the State owning such vessels.)
The provisions of this Convention will be applied in every Contracting State in all cases where the claimant is a citizen of one of the Contracting States ARTICLE 4.
provided always that nothing in this convention shall
;- 247 -
prevent any of the Contracting States from settling by its own laws the rights allowed to its own citizens before its own Courts. ARTICLE 5. This Convention shall not be binding on a belligerent State in respect of claims arising during the period of belligerency.
IV
INTERNATIONAL SHIPPING CONFERENCE May 1924.
Immunity of Public Ships. That this conference, representative of the Shipping Industry in every part of the world, welcomes the action
of the Comité Maritime International in promoting a Convention designed to remove the present anomalies arising from the continued immunity of States in respect of their maritime property.
Accordingly it approves the Convention on this subject drawn up by the Comité at their Conference 'in London in October 1922, as revised in Gothenburg in August 1923 and calls upon all Maritime Governments to conclude and give effect to such Convention without delay.
'
GREAT BRITAIN BRITISH MARITIME COMMITTEE
Code of .Affreightment The Committee has duly considered the Paris Report on this subject and is of opinion that neither the commercial interests in this country nor those abroad would be willing to consider any attempt at international codification of the law of Affreightment for the present, either upon a general code or upon particular questions. There is understood to be a strong feeling in commercial circles that they must set their face against undertaking new work until the work already undertaken has been brought to a successful conclusion or its conclusion, without further great effort, can be assumed.
For the British Maritime Committee GEORGE P. LANGTON,
Secretary.
GREAT BRITAIN BRITISH MARITIME COMMITTEE
Report on the Convention on Maritime Mortgages and Liens. A strong Sub-Committee was appointed specially to consider the matter and was composed of the following members :
Sir Leslie Scott, K. C., M. P., Chairman; Mr H. M. Cleminson, Mr P. Maurice Hill, representing the Chamber of Shipping of the U. K.: Mr J. Sandeman Allen, M. P., representing the Association of Chambers of Commerce
and the International Chamber of Commerce; Mr J. P. Rudolf, representing Liverpool Underwriters' Association and London Underwriters' Association; Mr W. W. Paine, Mr E. Sykes, representing British Bankers' Association; Mr Walter Raine, M. P., representing Necessaries Men and particularly coal exporters and suppliers; Mr F. W. Temperley, representing Institute of Shipbrokers; Mr G.
P. Langton, Honorary Secretary; Mr G. St. C. Pilcher, Asst. Hon. Secretary.
The Sub-Committee having carefully considered the
text of the Convention on Maritime Mortgages and Liens (Brussels, 1923) duly reported and as a result the 17
tn0
British Maritime Committee decided to submit the following recomi-nendations to the British Government and to invite the consideration of die Genoa Conference of the Comité Maritime International thereto. The British Maritime Committee recognises that these views, expressed
at this time when the Protocole de Signature has been opened at Brussels, and certain Governments have actually signed, are given shape very late in the day. They can only express their regTet and apologize to the other Maritime Nations and at the same time express the hope that it may be possible to reconsider the position lo tbe extent indicated in this memorandum. It has been found extraordinarily difficult to harmonise the conflicting views of the various commercial interests affected.
Subject to the specific points mentioned below, they approve the Convention. If the amendments suggested can be incorporated in the draft they feel hopeful that His Brilannic Majesty's Government may see its way to sig,n.
REPORT ARTICLE 2.
Sub-Section, 2. The Committee are of opinion that this
Sub-Section ought not to apply to land servants of the ship, such as stevedores or other persons not on the ship's articles, Sub-Section 4. The Committee feel that the wording of this Sub-Section is obscure. It has already given rise to considerable discussion and doubt. and the Committee
- 251 -
take the view that it should be re-drafted in order to confine its operation to damage suffered through negligent navigation (including collision) and that it should be made clear that the loss or damage referred to includes damage to the other colliding ship. Furthermore, it should be made clear that the Sub-Section grants a lien in respect of claims for loss or damage to cargo on both ships and in respect of claims for personal injury to passengers on board both ships, but only when such loss, damage
or personal injury is due to negligent navigation (including collision). Sub-Section 5. The Committee recognise that a lien for
necessaries, whether in the general form or limited to Master's Disbursements as provided by our Merchant Shipping Act 1894 Sec. 167 is not a matter of so much importance under modern conditions of shipping trade as formerly. But the Committee are of opinion that it is to the interest of mortgagee, shipowner and cargo-owner, as well as to ship suppliers, repairers and other necessaries men that this important element of maritime credit should
be established internationally and on a uniform basis, and that its form should be general and not limited to Master's Disbursements » as by our Merchant Shipping Act. They therefore approve the wording of Sub-Section 5.
They are further of opinion that the lien so established should be given a position better than is proposed by the Convention, and think that it should be advanced so as to take precedence of the mortgage in the same way as
the liens numbered 1 to 4 without any necessity for registration.
- 25'2 -
Sub-Section 6. The Committee are of opinion that there
should be a lien for claims arising on Bills-of-Lading not coming within Article 2, Sub-Section 4, but that the machinery by which such liens should be enforced should
be further discussed. In view of the advantages which ship and cargo interests already stand to gain under the COnvention, the Committee think that this lien should remain in the position, so far as priority is concerned, viz which it now occupies in the Draft-Convention as No. 6 of the liens, and after the mortgage. ARTICLE 3.
In view of the previous recommendations the words « Nos. 1 to 4» in line 3 of this article should read « Nrs 1 to 5 », and the words Nos. 5 and 6» in line 11 should read «No. 6 ».
Whilst the Committee do not view with favour the provision in the first two lines of the second paragraph of this Article whereby additional liens may be created by National Law, they take the view that the liens so created are not likely, in practice, to be very many. A number of objections were raised to the principle of registration of claims, provided for in the third paragraph of this article. It was pointed out that if this provision be retained, there is a danger that shipowners will be hampered by the constant registration of cargo claimsome of which may not be bona fide. Some method of preventing frivolous claims and of dealing quickly with all claims would probably need to be devised, and it was suggested that the Courts of Justice of the various coun-
- 253 -
tries of registry should be empowered to expunge these
claims, the claimants by the act of registration being deemed to submit to the jurisdiction of the Courts of the Country of registry so as to enable them to adjudicate upon the claim for which lien is claimed. This provision would give foreign courts (< compétence » and in British procedure be an additional ground for service out of the jurisdiction. There is also the following question of legal procedure
which the Committee think should be brought to the notice of signatory States with a view to a supplementary
agreement in the protocol. Under Article 1 of the Convention mortgages are to be registered either at the vessel's port of registry or at a central office. The Committee think that it is imperative that the ship's register, whether kept at a central office or at the vessel's port of registry, shonld be complete, and should show not only any mortgages there may he on the ship but also all the liens that may have been registered against her. It may be that in some countries there will be both a central and a port registry; in such cases the regiii-ter will have tó be kept at both places, and suitable arrangements will require
to be made by National legislation for the reciprocal transmission of information between the two offices so as
to ensure the prompt registration of all mortgages and liens in each register. In general the Committee do not favour the principle of registration of claims, and they are moreover of opinion
that the period within which a claim can be registered should in any case be extended from one month to three months.
ARTICLE 5.
Line 3. The translation of the French text should be reconsidered. « Concurrently and rateably » might be better translated as « Equally and pro rata ». ARTICLE 8.
The Committee are of opinion that it is undesirable internationally to concede the full quality of a lien to the additional liens which may be granted by National Laws under Article 3. But the Committee do not feel that this view need be pressed and recommend that the British Diplomatic Representative be given discretion to modify this view if by so doing he can ecure reciprocal concessions in other directions. ARTICLE 9.
The Committee do not appreciate the importance in the French text of the difference between « exigibilité » and naissance », i.e. between the date when the claim becomes enforceable and the date when it arises. ARTICLE 13.
Insert the word « also » after the word « apply » in line 1.
Assurance obligatoire des Passagers MÉMOIRE du Commissariat général de l'Émigration du Royaume d'Italie.
Le Commissariat Général italien de l'émigration, après avoir examiné l'avant-projet de Convention sur l'assurance obligatoire des passagers, élaboré par la Commission nommée par le Comité Maritime International à la suite de la résolution adoptée à la Conférence de Gothembourg, formule les observations suvantes I.
Il est opportun de rappeler que l'avant-projet qui sera discuté maintenant par la Conférence de Ganes tire son origine d'une proposition concernant l'assurance obligatoire des émigrants contre les risques de la navigation. Ce
fut la difficulté rencontrée dans la formulation d'une définition commune de l' « émigrant )) qui persuada abandonner la proposition primitive et à la transformer en celle de l'assurance des passagers en général. Sans discuter si une définition commune de l'émigrant présente réellement des difficultés insurmontables, nous croyons nécessaire de faire observer que, pour les émigrants transocéaniques, le problème de l'assurance, Bp& cialement tel qu'il a récemment été posé, se présente
256
comme un problème spécial, pour lequel il est opportun de laisser la possibilité de le distinguer de celui des passagers en général et de le résoudre de manière spéciale. L'avant-projet élaboré par la Commission du Comité Maritime concerne exclusivement les risques de naviga-
tion auxquels se trouve exposé le passager du fait du voyage. L'assurance obligatoire des passagers, telle qu'elle est prévue dans cet avant-projet, n'est, en substance, que la détermination de la responsabilité légale de l'armateur envers le passager, en cas de mort ou de lésion corporelle
dépendant de la navigation strict° sensu. Maintenant, le problème de l'assurance des émigrants transocéaniques, tel qu'il est considéré dans les études en cours dans les clifférents pays, se pose d'une manière différente et plu-, ample, et va au-delà du domaine du droit commercial maritime, c'est-à-dire du règlement de la resp Dnsabilité des Compagnies de navigation vis-à-vis de l'émigrant en tant que passager, pour entrer sur un terrain de caractère social.
En effet, les risques de mort et de lésions corporelles dépendant de la navigation, c'es..-à-dire de faits directement ou indirectement imputables aux Compagnies de navigation, ne sont qu'une partie seulement des risques pris en considération dans l'ensemble du problème de l'assuranee des émigrants. Les tendances les plus récentes dans ce domaine cherchent à réaliser une assurance des émigrants qui couvre différents risques, mème hors de ceux qui sont contemplés par l'avant-projet de la Commission de Paris, tels que le refoulement du pays de destination, les maladies, l'invalidité ne dépendant pas d'un accident de voyage, etc.
C'est dans ce sens, par exemple, qu'en Italie une Commission déjà instituée près le Commissariat Général dé l'émigration, oriente ses études, en conformité d'un vceu du Conseil supérieur de l'émigration. De même, la Conférence internationale de l'émigration et de l'immigration, tenue à Rome en 1924, a adopté une résolution considérant Passurance des émigrants ne se limitant pas uniquement aux risques de la navigation au sens étroit du mot. Or, il est évident que si l'on réalisait l'assurance des émigrants selon ces critériums, cette assu-
rance aurait un caractère global et comprendrait les risques d'accident de voyage ainsi que d'autres risques indépendants de la navigation, sauf à établir la répartilion de la charge de la prime unique entre l'émigrant et la Compagnie, cette dernière con servant à sa charge la partie de la prime correspondant aux risques connexes sa responsabilité.
En raison de cette orientation des é:udes sur le problème de l'assurance des émigrants, il est opportu.n que l'avant-projet de Convention en tienne compte. A cet effet, il serait nécessaire que dans l'avant-projet de Convention sur l'assurance des passagers en général, on fit une réserve expresse dans le sens que la Convention
ne saurait porter préjudice à la liberté des législations nationales en ce qui concerne l'adoption de mesures spéciales pour l'assurance des émigrants.
En ce qui concerne les articles de l'avant-projet, sans entrer dans un examen particulier, nous faisons observer:
Il est nécessaire de préciser que le paiement de rindemnité forfaitaire établie par la Convention n'exonère pas l'armateur des responsabilités qui lui incombent selon le droit commun, non seulement dans les cas de dol, mais aussi dans ceux de faute grave. Selon le projet, l'indemnité en cas de mort du passager serait payée ses ayant-droits, déterminés par la loi nationale du passager ».
Cette phrase prate à quelque incertitude d'interprétation sur le caractère de findemnité en cas de mort et, par conséquent, sur la détermination des ayants-droit. Il est désirable de préciser que l'indemnité en cas de mort ne constitue pas un crédit successoral revenant par droit d'héritage à ceux qui sont les héritiers du passager, mais
plutôt un droit propre de certaines personnes déterminées de la famille du passager, de façon analogue au systame adopté par les lois sur l'assurance contre les acci-
dents du travail. Une fois cette .idée précisée, le projet de Convention devrait ou déterminer lui-mame les ayantsdroit ou laisser cette détermination A la loi nationale du passager.
MEMORANDUM OF THE
DUTCH MORTGAGE BANKS ON THE
Draft Convention on Maritime Mortgages and Liens. The Venice Conference of the International Maritime Committee held in 1907 has wisely adopted the opinion of the Sub-Committee sitting, in Paris in June 1906, which had prepared a Draft Convention that was discussed at the above-mentioned Conference in Venice viz: that the aim is to grant to mortgages, after making away with unknown and encumbering priorities, a security including not only the ship, but also the accessories, increasing her v.alue as much as possible, and to give thus a more sound basis to the maritime credit. (I. M. C. Bulletin No 19. 1909.) At the present time shipping business does indeed demand that there should be a proper and well-regulated maritime credit. In many cases a shipowner who orders a ship to be built or purchases one, immediately takes up a mortgage.
It is, however, of great importance, particularly in the difficult conditions now prevailing in shipping business, that the owner should in his ship possess an object which he can hand to the Bank by way of security. He is thus
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enabled during bad times to obtain funds which he requires .to continue his business. If, however, the owner wishes to obtain credit on his ship when he needs it, it is necessary that there should be credit institutions prepared to loan him funds on reasonable conditions. A ship which is moveable, has a relatively short life
and is liable to loss and wear and tear to a far greater exte.nt than, for instance, a house, offers in itself far less security to the lender than propertY does. In addition to this it must be observed that the mort-
gage is poorly regulated and that there are numerous uncertain liens which can have precedence of the mortgage without the cognizance of the mortgagee, so that furnishing credit entails such risk for the lender that he must add to his interest a high risk premium or demand from the shipowner a bankers' guarantee as collateral security, which naturally increases the cost of the mortgage, also by reason of the commission payable to the bankers.
Starting from the idea that it is therefore necessary greatly to restrict the liens which have priority over the mortgage, and to make the period of validity of such liens as brief as possible, a draft convention was made at the Venice Conference of 1907 which, as far as the mortgage is concerned, fulfilled reasonable requirements. It is to be regretted, however, that after this draft was discussed at the various Diplomatic International Maritime Conferences of Brussels, a number of changes were made, thereby increasing the number of liens and considerably weakening the position of the mortgage.
- 261 That the dema.nds of the parties who exacted liens for certain interests were met is so much the more surprising as both in Belgium (Act of Feb. 10, 1908) and in Greece (Act of April 17, 1910) modern legislation has been in-
troduced, based on the Draft of Venice, according to which the liens have been considerably restricted. In practice no difficulties whatsoever have been experienced. At the Brussels Conference of October 1922 the lien which now appears in Art. 2. Par. 5 of the Draft of 1923
has, under certain reservations, been made to rank after the mortgage.
Hence it is with astonishment that the signatories to the present Memorandum now learn that there is a fresh movement towards granting this lien priority over the mortgage.
This privilege is very comprehensive. All kinds of sup-
plies and repairs fall under this lien, if only they have been made « away from the vessel's home port ». If such supplies have, for instance, been made at Southampton
when London is the ship's home port, they fall under thiS lien. Moreover, there are tramp steamers which scarcely ever
return lo their home port so that practically all supplies and repairs take place away from the home port. If the captain of a ship has a new propeller put on when outside his home port, replaces his old boilers for new or has other very expensive repairs made to his vessel, these are preferent unless the mortgagee can prove that these were not necessary for the preservation of the vessel or the continuation of her voyage.
Large claims for the supply of oil and steam coal, victuals, etc., are preferent. If the shipowner should fail to furnish the master with the necessary funds for the current business, the captain can borrow money and the claims arising therefrom are preferent on the ship, for it can be assumed that all these expenses are necessary for the preservation of the vessel or the continuation of her voyage. Even if the master should incur such expenses in ar-
rangement with the shipowner in order to deceive the mortgagee and consequently subniits greatly exaggerated or even fictitious figures, it will be exceedingly difficult
for the mortgagee to prove that these expenses which, for instance, were incurred at a remote port, were not genuine.
If the captain is also the shipowner he will in this way
be able to annul entirely the precedence of mortgages previously taken out by him.
The preferent claims thus created may endanger the mortgage even in the course of a single voyage. According
to Article 9 the period of the liens may not, however, be much greater than that of one voyage. According to Article 9 they can last two years. Even in Par. 6 of Art. 9 the States which have joined the Convention have been
given the right to stipulate that the lien shall continue even when the ship could not be arrested in the territorial waters of the country where the creditor is domiciled.
In this manner the lien can be extended for an almost unlimited period, as it is quite possible that the ship will not for many years return to the country of the creditor.
In former times the above mentioned privilege had undoubtedly a raison d'être. In those days a captain in a foreign port was thrown entirely on his own resources. The English delegates at the Conference of Venice rightly Drgued, however, that such a privilege is entirely superfluous in modern times (I). There is a telegraph office at the smallest places, while most ocean-going vessels are fitted out with wireless which enables them to consult their owners.
Moreover, the shipowners have, far more than was formerly the case, their agents all over the world; if a shipbuilder or supplier is not prepared to give credit there would be no difficulty in obtaining a bankers' guarantee by telegraph. Besides, the owners should see that the master has sufficient funds at his disposal to carry on shipping business. If they do not wish to give him ready cash, he can be given a letter of credit. In fact, shipowners who possess sufficient working capital to carry on their business properly- do not in practice require this privilege. (1) Page 43 of the Bulletin Nr 19 of the Comité Maritime International: Les ilélégués anglais aborderent ensuite le point capital en disant qu'a leur avis il était nécessaire dans Pintérét du credit maritime de réduire autant que possible le nombre des priNilèges: ¡ocios il y a de privileges, plus grande sera la valeur des hypothèques. Si Phypothèque est bien garantie, le crédit maritime reposera sur une meilleure base. II n'y a actuellement
plus aucune nécessité d'accorder un privilege pour toutes les dettes con tractées par le capitaine dans Pexercice de ses attributions légales; par suite de Pextension des entreprises de transport modernes, par suite de la sécurité et de la rapidité des communications internationales, il est possible
de se procurer de Pargent partout et dans le plus court délai sans que le créancier ait encore besoin d'un privilege pour assurer ses droits; il peut, s'il desire agir à coup silt., se faire donner hypothèque sur le navire et sur le fret et il jouit d'une protection suffisante puisqu'il a le moyen de saisir le navire.
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Not only for dishonest persons but also for those who
start shipping business with insufficient capital, it is, however, an excellent means of robbing the mortgagee. Also for shipowners whose business is gradually declining
it is made easy for them to continue to carry on their business in the hope of making good their losses instead of stopping in time. It is said, however, that even if the owners do not require it, it is nevertheless of importance for the ship suppliers, repairers and other necessaries men. It is true that for everyone who sells anything, it is pleasant to have
a lien for the selling price. The question, however, is whether the public interests are really served by granting such liens to all kinds of interested parties. It seems to us that public interest will be much better served by proper regulations respecting the ship's mortgage than by creating such maritime liens in favour of the above mentioned parties. One should bear in mind that the repairer or supplier can, if he does not wish to grant credit, refuse to carry out the repairs or delivery, or can demand cash payment. If this is not obtainable he can even be satisfied with a
bankers credit or other guarantee, or can even himself take a first or second mortgage. He can protect his own interests', in contrast with the
mortgagee who is defenceless when debts are incurred without his knowledge and which, against normal ideas of justice, are made to rank before his mortgage previously established.
Finally, it is alleged that these liens are also in the interest of the mortgagee. The Dutch Ship Mortgage
Banks, who have issued and still hold numerous mortgages in many countries of Europe can, however, after more than 25 years' experience, state with assurance that they consider that these liens are never in the interest of the mortgagee. They are of opinion that if a shipowner no longer possesses sufficient funds, it is much better that
the ship should be arrested than that the owner should continue to make preferent debts which, when subsequently the unavoidable bankruptcy occurs, shall rank prior to tbe ships' mortgage. In cases where it is in the mortgagee's interest that the voyage should be continued,
he will furnish the necessary funds of his own accord. He wishes, however, to be able to judge whether it is in his interest to do so. The Dutch Ships' Mortgage Banks must therefore strongly object to the reintroduction of this lien. The Mortgage Banks haye, further, grave objections
against the third paragraph of Art. 3. This regulation will form a very great obstacle to a mortgage and cannot, moreover, be carried out in practice. Every creditor who, rightly or wrongly, considers that he has a preferent claim, may have this claim endorsed on the register on his statement alone. What a magnificent chance for blackmail! A person wishes to sell a ship to a buyer who, as frequently happens, will pay part of the purchase money by means of a mortgage which he takes on the vessel. Now an arbi-
trary claim is endorsed on the register by a malicious person for e. g. supplies delivered or moneys advanced in a foreign port, facts which can only be verified with difficulty. The Mortgage Bank refuses to grant a mortgage, 18
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the buyer to accept the ship and the seller, who does not in any case wish to miss the sale, will attempt to secure the co,operation of the swindler by paying him money in order to induce him to withdraw his entirely fictitious claim.
Ac,ain what must be done with the cancellation of the liens from the register which, after the payment of the debt or otherwise, have lapsed? And what must be done
in case of part payment? Will the registers not be a hopelessly confused collection of countless liens concer-
ning the real existence and extent of which it will be difficult to obtain absolute certainty? It is therefore imperative that the third Par. of Art. 3 should be cancelled entirely. In this connection Article 12 will also require amendinen.t. Before submitting remarks on the various articles, the Committee wishes to observe that in various articles of the Convention it is not clearly indicated to what extent, in case of legal conflicts, the « Lex Fori» or the (( Loi du Pavilion )) will have to be observed. This will give rise to many difficulties and legal uncertainty. ARTICLE 2.
Sub-section 2. The Committee is of opinion that this lien should be restricted to the persons OD board and that therefore it should not include bookkeepers, stevedores, shore captains, ship's inspectors, etc., and that the words: o and other persons in service of the vessel » should be deleted. Sub-section 5. The Committee refers to what has been said above with regard to this lien.
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Sub-section 6. This lien is objectionable for the mortgage if Par. 3 of Article 3 is retained. It could moreover equally well be left to the national laws to create such a privilege. AR'rICLE 3.
The second Paragraph of Article 3 is in conflict with the original intention of the unification, the aim of which was that the same privileges should operate in all countries adhering to the Convention. In consequence of the stipulations of the third Par. of Art. 3 the mortgage will again have to do with this variety. As already stated above, it is desirable that the third paragraph of Article 3 should be deleted. ARTICLE 9.
Paragraph 1. It is desirable that it should be stipulated that all liens should lapse one year after they have arisen. In case of Par. 5 of Article 2 it is absolutely unnecessary that the period of claimability should be extended. Creditors who are placed in a special position by means of a lien should, when maldng agreements, be required to see that the period beyond which the claim shall lapse and be no longer recoverable, shall for both together not exceed the period of one year. Paragraph 6. The period of three years is m-u.ch too long, seeing that in these days it is always known where the ships are and it is quite possible for an arrest to be laid on the ship in a country other than that of the creditor. There would be even less objection against arresting the ship in other countries after the unification is esta-
Wished as a preferent creditor knows that this claim will be respected in the other country. ARTICLE 12.
Our Committee attaches no value to the introduction of a document such as is described in this article unless it is possible to make uniform regulations operative for the contracting countries. The Committee have here expressed their chief objections but do not wish to give the impression that there are no others. It is the opinion of the Committee that the draft is not yet ripe for signature and it is suggested that a revisicm should be made, if possible with the co-operation of the Mortgage Banks
The Committee of Dutch Mortgctge Banks, Dr. L. H. FESCHOTTE,
Dr. W. C. MEES, Dr. E. P. DE MONCHY.
September 1925.
IMMUNITY OF MERCHANT SHIPS MEMORANDUM PRESENTED BY
Sir GRAHAM BOWER
At the 14th Conference of the Comité Maritime In.ternational held at Gothenburg in August 1923, the question of the immunity of merchant vessels was considered and I brought forward certain proposals which were rejected. I attended as a delegate of the Committee of the Inter-
national Law Association but as that Committee has ceased to exist I can no longer attend the meetings of the Comité Maritime Inteinational. Nevertheless although owing to my incapacity and inexperience as an advocate my proposals were not accepted they involve questions of interest not only to the shipping world but to all students of International laNv and I venture to submit them for reconsideration. I must begin by defining the word (( immunity ». It is not intended or asked by me that the word «immunity» shall carry the meaning of exter-territoriality, that privi-
lege is limited to vessels of war and the only question open to discussion in this connection is : (( What is a vessel of war ?» In my opinion it is any vessel on board of which .the naval disciplinary code is in force. But that is not the question I am discussing now. I do not dispute
that crimes committed on board merchant vessels in foreign territorial waters are punishable by the laws and the courts of that foreign country, and I do not ask for any modification of existing rules in this respect. The question I raise is as to what ships if any shall be liable to detention as security for a civil actio:n brought as a consequence of some incident, such as for instance, a collision with another vessel, in a foreign port. It is the existing lai,v that « a lien cannot be enforced D on a light ship built for a state in a foreign country. )) It must be allowed to issue from the territory without )) impediment » (Hall. fifth edition, p. 200), and I desire to see immunity to this extent extended to Ships fully chartered by a government; Mail steamers; Ships engaged in the service of light ships, e. g. Trinity House ships engaged in supplying light ships. The draft convention adopted by the Gothenburg Conference reads as follows Resolution passed 17 August 1923.
Immunity of State-owned Vessels. ART. 1. - (( Vessels owned or operated by States, car)) goes owned by them, and cargo and passengers carried » on such -vessels and the States owning or operating
such vessds shall be subjected, in respect of claims relating to the operation of such vessels or to such cargoes, to the same rules of liabilty and to the same ))
obligations as those applicable to private vessels, persons or cargoes.
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» Except in the case of the ships and car)) goes mentioned in paragraph 3, such liabilities shall be enforceable by the tribunals having jurisdiction » over and by the procedure applicable to, a privately owned' ship or cargo or the owner thereof. ART. 2.
In the case of )) a) Ships of Nvar and other vessels owned or operated by the State and employed only in Governmental noncommercial work;
ART. 3.
» b) State-owned cargo carried only for the purpose a of Governmental non-commercial work on v.essels owned or operated by the State, such liabilities shall be enforceable only by action before the competent » tribunals of the State owning or operating the vessel » in respect of which the claim arises. ART. 4.
» The provisions of this Convention will be
applied in every contracting State in all cases where
» the claimant is a citizen of one of the contractingStates, provided always that .nothing in this Convention. shall prevent any of the contracting States from settling
by its own laws the rights allowed to its own citizens a before its own Courts. »
In England « immunity » extends to ships fully chartered by the Government. In America it does not. The first question is whether it shall be extended universally or not to vessels fully chartered by a recognised government.
And the first point to be decided in this connection is the Forum. It is a generally recognised rule of inter-
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national law that the defendent has the right to be sued in his own forum. But in the case of civil proceeding, in a foreign port, as in a case of collision, the witnesses are on the spot and there is great convenience in hearing the evidence locally. The question arises therefore whether it is desirable that evidence should be taken de bene esse
or whether the case shall be heard and determined by the local Court. It is proposed to grant the right to their own forum to vessels fully chartered for which a government accepts responsibility. The courts are the same, the
security is the same, and the comity or international courtesy is the same.
Yet, if we read Art. 1 of the Draft-Convention with Art. 3 we find that Art. 3 as it stands defeats the purpose of Art. 1. The intention of Art. 1 is to put publicly owned ships on precisely the same footing as privately owned ships.
But the draft Art. 3 places « vessels owned or operated by the State » in a privileged position as compared with
privately owned ships. If however the words (( fully chartered by the State » were substituted for the word (( operated by the State » the object sought to be achieved by Art. 1 would be achieved, for the privately owned ship if fully chartered by the State would be granted the same immunity as the State owned ship. But there is the question of public policy which should outweigh all questions of technical law. Ships are growing in size. It is no exaggeration to say that there are vessels
now afloat which are a hundred times as large as the average vessels of a hundred years ago. The cost and inconvenience of detention is a hundred times as great as
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it was a hundred years ago, and the facilities for the enforcement of foreign judgments have been greatly increased. It is evident therefore that public policy throws the onus probandi of the need for the detention of a merchant vessel to answer to civil proceedings on those who
desire to exercise that means of obtaining security. No vessel should be detained for an hour unless there is the strongest justification for such detention, and in the case of fully chartered ships it is difficult to find any justification at all. The security is the same as for a war vessel, the Forum is the same, the Government is the same: why distinguish ? And if it is hard to find reasons for distinguishing
against the fully chartered ship there are many reasons for distinguishing in her favour. A government does not charter a ship without reason. Ships are chartered to send provisions to a country in distress, e. g. countries that have suffered from earthquake, famine or pestilence, or oil ships may- be chartered to supply a fleet in urgent need of oil. In the first case to delay the provision ship would be
an act of inhumanity. In the second case it might be interpreted as an unfriendly act or a breach of neutrality. To me therefore it appears that the grant of immunity to ships fully chartered by a government is demanded by public policy and international harmony. There remains the question of mail steamers. To detain a mail steamer may not only be a national injury but a
universal or international injury. Moreover there are lines of mail steamers, as for in.stance the Messageries Maritimes, which are virtually government vessels and
T7
carry a government agent. The interests of public policy point to the grant of immunity to mail steamers under Art. 3 of the draft-Convention. Similarly in the case of Trinity House vessels a light ship is now immune. Surely the Trinity House ship which supplies the light ship with provisions and oil and changes the crew of the light ship should also be immune. The aim of the Conference is to facilitate commerce., to protect navigation and to promote international harmony. Surely this aim can best be secured by reducing as far as possible the restraints on free navigation and in granting the greatest possible' protection to shipping. GRAHAM BOWER.
CONFÉRENCE DE GÉNES SEPTEMBRE 1925 -
CO1VITE-REN,DU
GENOA CONFERENCE SEPTEMBER 1925
REPORT OF PROCEEDINGS
LUNDI, 28 SEPTEMBRE 1925. MONDAY, 28th SEPTEMBER, 1925.
Séance d'ouverture Inaugural session La séance est ouverte a 10 heures dans l'Aula Magna de l'Université de Ganes. The conference opened at 10 a.m., in the Aula Magna of the Genoa University. M. LOUIS FRANCK, président du Comité Maritime International. Excellence, Mesdames, Messieurs, Je &-
dare ouverte la quinzième conférence du Comité Maritime International. J'ai Phonneur de dormer la parole M. F. Berlingieri, président de l'Association italienne de Droit Maritime. E' con Un intimo senso di esultanza che mi è finalmente consentito di vedere accolti da questa mia città, il cui spirito profonM. le Prof. Dr. FRANCESCO BERLINGIERI.
damente marinaro per sccolare atavismo pulsa oggi alP -unisono col mio cuore, gli antesignani e gli apostoli della unificazione del diritto del mare, coi quali, da oltre un
quarto di secolo, ebbi Ponore e la somma ventura di vivere in operante e feconda comunione d'intendimenti e di studi pel raggiungimento delle comuni idealità.
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E l'accoglienza avviene in questo insigne Ateneo, dove
ci sentiamo avvolti in un' atmosfera di gloriosi ricordi antichi e recenti, in questo Ateneo che espresse dal suo seno, nella sacra primavera del risorgimento italico, l'atleta del pensiero politico e sociale e il gentile ed eroico poeta soldato.
Coll'animo vibrante di questi sentimenti e di queste memorie, nel nome dell' Associazione Italiana di diritto marittimo, io porgo un fervido e cordiale saluto a quanti sono qui convenuti dalle più diverse piaghe, e con quest' animo saluto e ringrazio S. E. il Ministro della Giustizia, che ha voluto, colla sua presenza e colla sua calda ed elevata parola, onorare ii solenne cominciamento dei nostri lavori.
Anche, per Voi, Eccellenza, come per me, questo augusto recinto è denso di giovanili ricordi ! Qui voi moveste, nella promettente vostra giovinezza, i primi passi in quena Scienza del giure, nella quale non tardaste a rivelarvi insigne maestro, e il primo vostro scritto, la dissertazione di laurea, versö appunto sul tema relativo alle limitazioni della responsabilità dei proprietari di navi, e cioè su quel tema che forme"; l'oggetto di oltre un decennio di studi e di discussioni nelle nostre Conferenze, prima che si conseguisse quel laborioso accordo interstatale da cui ebbe vita la convenzione ora sottoposta alla ratifica dei Governi. E con tanta maturità e dirittura di giudizio è condottu quel lavoro giovanile, che si è tratto a pensare, con un senso, di rincrescimento4 quale prezioso contributo di vigorosa luce intellettuale, di fine ed equilibrato criterio e di tenace fervore di volontà sia venuto a mancare al
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diritto marittimo e alla causa della sua unificazione internazionale, per avere la Eccellenza Vostra indirizzata la vigorosa e feconda sua operosità scientifiea verso altri rami del diritto. Ed un saluto riconoscente vada all' illustre rappresentante di Genova, al Magnifico Rettore di questa Università e alle altre Autorita e agli Instituti pubblici e privati che hanno all'Associazione Italiana di diritto marittinto prestato il loro concorso nelle festose accoglienze degli ospiti nostri. Senonche ii mio saluto ai membri del Comité Maritime International e ai delegati delle Associazioni nazionali di diritto marittimo non è scevro di un senso di tristezza, in quanto mi ricorda che non pochi, e fra i migliori, ci sono stati sottratti dall' inesorabile fato lungo la via che percorrevamo insieme ! Ed ahimé ! anche quest'anno dobbiamo, purtroppo, con affettuoso e accorato rimpiante, registrare la scornparsa di un altro nostro illustre Compagno, di Paolo Govare, uno fra i più antichi e più tenaci assertori e animatori dei nostri studi e delle nostre conferenze. Appassionato cultore del diritto marittimo fin dai suoi giovani anni, esercitò nobilmente l'avvocatura, prima a Dunkerque, sua città nativa e poi a Parigi, dedicandosi più specialmente agli affari della navigazione e del traf-
fico del mare e conquistando uno dei primi posti nell' arringo forense. L'Associazione francese di diritto marittimo lo volle suo presidente e quando egli dovette rinunciare alla carica, a cagione della salute, divenuta malferma, lo acclaim) suo presidente onorario. Ed io lo ricordo ancora presidente della conferenza di
Parigi del 1911 e ricordo con quanta genialita, con quale finezza di tatto e signorillità di modi egli assolse l'ufficio suo.
Sicuro interprete dei vostri sentimenti, mando alla me-
moria dell'illustre e diletto amico il tributo del nostro commosso e reverente omaggio, e porgo al figliuolo, qui presente, degno continuatore nel nostro campo, dell'opera paterna, l'espressione della nostra affettuosa simpatia.
Non è questo il momento di ricordare la ingente mole di lavoro compiuto e il lungo cammino percorso verso la meta prefissa dal Comité Maritime International e dalle Associazioni Nazionali di diritto marittimo; giacchè non voglio ulteriormente prolungare la impaziente vostra attesa della parola di S. E. il Ministro. L'assistenza e il salvamento e Purto di navi sono ormai, mercè l'ingegnoso sistema delle convenzioni interstatali a.dottato dal Comité Maritime, uniformemente regolati in tutti, si pu-6 dire, gli Stati marittimi. Le convenzioni sulla limitazione della responsabilità dei proprietari di navi e sulla polizza di carie° sono in corso di ratifia presso
la maggior parte degli Staii e quena sui diritti reali di garanzia sulle navi non attende che lievi ritocchi per essere del p-ari definitivamente approvata. Il che sta a dimostrare come la feconda attività delle dette organizzazioni sia stata potentemente spronata e aiutata dal consentimento e della pubblica opinione e dai poteri statali, essendo oramai, dopo il maraviglioso incremento &Ha navigazione e del traffico marittimo dovuto specialmente all'applicazione delle strutture di metallo e della penetrata profondapropulsione meccanica alle navi
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mente nella coscienza collettiva la ineluttabile necessità di renderle uniformi a tutti i popoli del mondo. Verità questa intuita ed affermata, circa un secolo fa, da Lord
Mansfield, con una forma precisa e lapidaria : o The maritime law is not the law of a particular country but the general law of nations )). *** C'est avec un sentiment d'intime joie qu'il m'est enfin donné de voir reçus par ma vale natale, dont l'esprit profondément maritime par un séculaire atavisme bat a l'unisson de mon c(cur, les précurseurs et les apôtres de l'unification du droit de la mer, avec lesquels depuis plus d'un quart de siècle, fens l'honneur et l'extréme bonheur de vivre dans une active et féconde communion de propos et d'études en vue de la réalisation d'un idéal commun. Et l'aceueil a lieu dans cet insigne athénée, où nous nous sentons enveloppés dans une atmosphère de glorieux souvenirs
A la fois anciens et récents, dans cet athénée d'où ont surgi dans le printemps sacré de la renaissance de rItalie, rathlète de la pensée politique et sociale, Mazzini, et le délicat et héroique poète-soldat. D'un esprit animé par ces sentiments et par ces souvenirs, au
nom de l'Association Italienne du droit maritime, j'adresse de chaleureuses et cordiales salutations à tons ceux assemblés ici des contrées les plus différentes et d'un méme élan je salue
S. E. le ministre de la Justice qui a bien voulu rehausser de sa parole chaleureuse et élevée le début solennel de nos travaux. De même pour votre Excellence que pour moi, cette auguste
enceinte est remplie de vibrants souvenirs. C'est ici que dans votre première jeunesse, déjà si remplie d'espérances, vous avez fait les premiers pas dans cette science du droit, dans laq-uelle
vous vous ôtes révélé bientôt un maitre éminent et autorisé; et votre premier essai, votre these de droit traita justement la question de la limitation de la responsabilité des proprie19
taires de navires c'est-A-dire la question qui coustitua robjet de plus de dix ans d'études et de discussions dans nos conferences avant que Pon ne parvint A ce laborieux accord international d'où est sortie la convention aujourd'hui soumise à la ratification des Etats. Et cette oeuvre juvenile est menée avec une telle maturité et une telle droiture de jugement qu'elle nous induit A regretter la précieuse contribution de vigoureuse lumière intellectuelle, de fin et équilibré eritérium et de tenace ferveur de volonté qui a manqué au droit maritime et A la cause de son unification internationale de ce que votre Excellence a dirigé son ardente et féconde activité vers d'autres branches du droit. fadresse aussi un reconnaissant saint à l'illustre représentant de Gênes, au Recteur magnifique de cette université, ainsi
qu'à toutes les autres autorités et aux Institutions publiques et particulières qui ont prété à l'Association Maritime leur concours dans les cordiales receptions de nos hôtes.
Mais la bienvenue que j'adresse aux membres du Comité Maritime International et aux délégués'des Associations natio-
nales de droit maritime n'est pas sans un voile de tristesse, parce qu'elle me rappelle que bon nombre et parmi les meil-
leurs nous ont été ravis par l'inexorable destin, sur la voie que nous parcourions ensemble. Hélas ! cette année aussi nous avons malheureusement enregistrer d'un tendre et douloureux regret, la disparition de
notre illustre ami Paul Govare, un des plus anciens et des plus tenaces protagonistes et animateurs de nos etudes et de nos conferences. Passionnément attaché au droit maritime dès sa première jeunesse, il exerça noblement la carrière du barreau. d'abord A Dunkerque, sa ville natale et ensuite A Paris, s'adonnant tout particulièrement aux affaires de la navigation et du trafic maritime, et acquérant un des premiers rangs au barreau. L'Association française de droit maritime rappela A la présidence et lorsqu'il dut démissioner, A cause de son mauvais état de santé, il fut proclamé président honoraire.
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Je le vois encore president de la conference de Paris en 1911 et je me rappelle encore la faeon habile et charmante dont il remplit son rale durant les importantes discussion.s. Je demeure convaincu d'être Pinterprête de vos sentiments en payant à la mémoire de l'illustre et déploré ami le tribut de notre ému et révérend hommage et j'offre à son fils, ici present, digne continuateur de l'ceuvre paternelle, l'expression de notre affectueuse sympathie.
Ce n'est pas le moment de rappeler l'énorme travail accompli et le long chemin parcouru vers le but fixé par le Comité Maritime International et par les Associations Nationales de droit Maritime; car je ne veux pas prolonger votre impatiente attente d'entendre la parole de S. E. le Ministre. L'assistance, le sauvetage et l'abordage de navires sont désor-_
mais, grâce à fingénieux svsteme des conventions internationales adopté par le Comité Marithne, réglés uniformément par presque tous les Etats maritimes. Les conventions sur la limitation de la responsabilité des propriétaires de navires et sur le connaissement soot en cours de ratification auprès de la majeure partie des Etats et celle sur les droits reels de garantie sur les navires n'attend que de légers amendements pour .étre aussi approuvée définitivement. Ce qui nous témoigne que la féconde activité des dites organisations a été puissamment éperonnée et aidée par le consentement et de l'opinion publique et des Etats. Parce que après le merveilleux développement de la navigation et du trafic maritime &I à l'application des structures métalliques et à la propulsion mécanique aux navires a pénétré dans la conscience universelle finéluctable nécessité d'uniformiser les lois destinées à régir les rapports qui surgissent et se déroulent sur la ,mer, qui est et ne pourrait ne pas &Are une voie ouverte à tous les peuples du monde. Vérité celle-ci qui a été comprise et affinnée il y a un siècle environ par Lord Mansfield sous une forme précise et lapidaire:
« The maritime law is not the law of a particular country but the general law of nations. »
281,
M. LOUIS FRANCK. - La parole est à S. Exc. le Ministre
de Grâce et de Justice. Son Exc. M. Rocco, ministre de Grâce et de Justice. Già per la seconda volta, o Signori, l'Italia accoglie i rappresentanti degli Stati Marittimi, della scienza e dell'in-
dustria, convenuti per la risoluzione dei più gravi problemi, che Pintensificarsi sempre maggiore dei traffici pone ai popoli, i quail dal mare traggono ragione della loro vita e della loro prosperitit. L'ottava conferenza promossa dal Comitato Marittimo Internazionale fu infatti tenuta a Venezia nel 1907 ed ebbe proficuo risultato perch& ivi si definirono, dopo un decennio di preparazione, i due progetti di convenzione internazionale sulla responsabilità dei proprietari di navi e sui privilegi e sulle ipoteche; progetti che sottoposti poi all'esame della Conferenza Diplomatica di Bruxelles, furono finalmente approvati nel 1922 e vanno ora raccogliendo le firme dei vari Stati. Lungo e travagliato cammino questo che sotto gli auspici del benemerito Comitato, vanno percorrendo gli studiosi ed i pratici per la realizzazione di un antico ideale : funificazione del diritto marittimo. Ed 6, voglio sperare, di buon augurio per il conseguimento di si alto fine il vedere riuniti tanti insigni uomini, da ogni parte del mondo convenuti, in una citta come Genova, gloriosa nei secoli come emporio marittimo e maestra sempre alle genti nella elaborazione del diritto del mare.
Le città marinare d'Italia hanno, in realtà, titoli preclari per offrir degna sede a questi lavori, chè di buono auspicio sono le loro stesse tradizioni giuridiche. Fu nelle
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citta marinare d'Italia che, subito dopo dispersa la caligine della barbarie mediovale, risorsero rigogliosi i traffici, e coi traffici (fuelle consuetudini che le navi italiane diffondevano in tutti i porti del Mediterraneo, e che crearon° ben presto il diritto comune marittimo dei traffici Mediterranei consacrato poi nel consolato del mare. Le tavole di Amalfi, il breve curiae maris di Pisa, il breve portus Kallaretani di Cagliari, gli ordinamenta maris di Trani; gli statuti di Genova, di Venezia, di Ancona, di Zara sono insigni documenti del più antico diritto marittimo, e consacrarono norme che furono riconosciute e osservate tenacemente in tutte le citta del Mediterraneo prima ancora che venissero raccolte nel Consolato del mare. Bene a ragione perci6 questo insigne documento del dititto mediterraneo venne sempre considerato per il suo contenuto, legge italiana, e come tale osservato in tutte le citta italiane, anche se il merito della sua compilazione debba essere riconosciuto a Barcellona. Risale pertanto in gran parte alle antiche repubbliche marinare
italiane il merito di aver fondato e diffuso un diritto marittimo, il quale regolô in modo uniforme i rapporti dellá navigazione in tutto il bacino del Mediterraneo, che in quei tempi ancora era la parte pitl importante del mondo conosciuto e il centro della civilta mondiale. Quel diritto uniforme talmente si diffuse e si radicô, -che sopravvisse perfino alle leggi particolari che anclaron° poi sorgendo nei vari paesi e durô sostanzialmente fin quasi ai nostri tempi.
L'opera delle coodificazioni, specialmente guando i codici dei vari paesi vennero ad assumere carattere sempre più spiccatamente nazionale, allontanandosi dal modello
del codiee francese che nei primi tempi aveva dominato la legislazione Europea, infranse la sostanziale unità del diritto marittimo durata per tanti secoli. Nel tempo stesso la profonda trasformazione tecnica operatasi nella navigazione per la introduzione delle navi a vapore, creava nuovi sviluppi e attribuiva nuovi caratteri ai traffici marittimi, per cui, in sostanza, le esigenze partieolari del traffico marittimo di ciascun popolo si andarono accentuando e deterMinarono atteggiamenti sempre più particolari della legislazione di ciascuno Stato. Sotto l'influsso di questo doppio ordine di fenomeni si aggravò la diversità delle leggi e con essa il disagio che ne veniva dal commercio marittimo mondiale. È in questo periodo che risorge la tendenza all'unificazione del diritto marittimo. Ed .è ancora all'Italia che noi possiamo riven-
dicare il merito di un forte impulso dato fin dai primi tempi al movimento. Basi ricordare il nome di Pasquale Stanislao Mancini, che fin dal 1852, nella sua prelezione al corso di diritto pubblico marittimo caldeggiava l'idea della unificazione, e che, presidente dell' Istituto di Diritto Internazionale nella Sessione di Ginevra del 1877, si faceva a precisare con perspicua chiarezza la distinzione fra le regole di diritto universale, che possono trovar posto
in un codice internazionale, e quelle che sono proprie dei diritti nazionali. II movimento per l'unificazione del diritto marittimo si è andato da allora sempre più allargando ed intensificando e l'opera del Comitato Marittimo Internazionale rimarrà monumento insigne di tenacia, di propositi e di altezza di dottrina in questo campo si arduo. Sono oramai
pressochd trenta anni che ii Comitato Marittimo con
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mirabile sforzo tende alla realizzazione del grande ideale. Si pu(') dire che dal giorno della sua costituzione fino ad
oggi esso non ha mai interrotto i suoi lavori, se non qttando la guerra Europea rese impossibile ogni attività internazionale, e, appena la guerra cessei, con nuovo ardore riprese l'opera sua. Mediante continue conferenze, intramezzate da lavori accurati di preparazione compiuti da speciali commissioni e affiancate da attiva propaganda, il Comita:o Marittimo è riuseito a dare un indirizzo pratico e fecondo a questi lavori per l'unificazione che sono per sè lunghi e faticosi, e tali da scoraggiare chiunque non
abbia il profondo convincimento della bontà dell' opera e la ferma fede nel suo successo finale. Grande è il lavoro compiuto in questi trent'anni, e notevoli, di fronte alle difficoltà dell' impresa, i risultati conseguiti.
Un primo e grande successo del Comitato M_arittimo furono le convenzioni internazionali di Bruxelles del 23 settembre 1910 sull'urto noutied e Isulla ,assistenza. e il
salvamento marittimo, sottoscrite da ben venticinque Stati rappresentati alla conferenza diplomatica. Vero è che manca tuttora la ratifica di qualcuno degli Stati firma-
taxi, non però quella dell' I:alia, che approve) le due convenzioni con legge 12 giugno 1913 N. 606; e che parecchi Stati, fra i quali neppure è l'Italia che vi ha provve-
duto con la recente legge 14 giugno 1925 N. 938, non hanno ancora uniformato la propria legislazione interna alle norme della convenzione. Ma ciò non toglie che la materia dell' urto di .navi e dell' assistenza abbiano oramai trovato, per merito precipuo del Comitato Marittimo,
c2S8
norme precise ed uniformi, almeno nei rapporti internazionali. Un second() success° il Comitato Marittimo Internazio-
nale ha ottenuto nel campo della responsabilita dei proprietari di nave. Questo argomento formò uno dei primi temi dell' attivita del Comitato 1VIarittimo. Esso fu studiato
nelle Conferenze di Anversa (1898), di Londra (1899), di Parigi (1900), di Amburgo (1902), di Amsterdam (1904), di Liverpool (1905), e infine di Venezia (1907) dove fu approvato il progetto di convenzione che servi di base alla conferenza diplomatica di Bruxelles. Questa cominciò ad occuparsi del progetto nella sessione del 1909
e del 1910, nella quale furono elaborati due nuovi progetti, che vennero poi sottoposti a nuovo esame tenendosi conto delle osservazioni e delle critiche che ad essi erano
state mosse. Il progretto fu ripreso dopo la guerra ed infine fu approvato nella conferenza diplomatica di Bruxelles del 1922, e, riesaminato da una sottocommissione nell'anno successivo, è stato sottoposto alla firma dei vari Stati press° il Minister° degli Affari Esteri di
Bruxelles. Da una nota verbale dell' Ambasciata del Belgio in data 27 aprile 1925 risulta che a quell'epoca la convenzione era stata gia firmata della Republica Argentina, dal Belgio, dal Brasile, dalla Danimarca, dalla Spagna, dalla Francia, dalla Gran Brettagna, dal Giap-
pone, dalla Polonia e Danzica, e della Romania. E se anche ragioni particolari potessero rendere esitante qualche nazione, come per esempio l'Italia, preoccupata degli interessi dei suoi emigranti, a sottoscrivere la convenzione, già la sua approvazione da parte della conferenza diplomatica e la sua accettazione da parte di un numero rile-
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valite di Stati, costituiscono giusto premio dell'attività perseguita dal Comitato Marittimo per lunga serie di anni. Anche nel campo dei privilegi e delle ipoteche marittime il Comitato Marittimo Internazionale ha visto coroflare dal. successo i suoi sforzi. Gli studi compiuti nelle Conferenze d'Amburgo (1902), di Amsterdam (1904), di Liverpool (1905), e di Venezia (1907) misero capo ad un progetto approvato dalla Conferenza diplomatica di Bruxelles 1922 e che è ora aperto alla firma presso Ministero degli Affari Esteri di Bruxelles. Risultano fino ad oggi acquisite le firme della Rep. Argentina, del Belgio,
del Brasile, della Spagna, della Francia, della Polonia e Danzica e della Romania. Infilie si deve ricordare la conzenzione, pure approvata dalla conferenza di Bruxelles del 1922 sull'unificazione di alcune regole in materia di polizza di carico, che sebbene originata dalle, regole approvate nel 1921 dalla conferenza dell'Aia indetta dalla international Law Association, pu O essere ascritta a merit° del Comitato Marittimo,
quale del progetto si occupò nella sua riunione di Londra del 1922, raceomandando l'approvazione della il
convenzione. Questa è stata firmata finora dal Belgio, dalla
Spagna, dagli Stati Uniti, dalla Francia, dall'Italia, dal Giappone, dalla Germania, dalla Polonia et Danzica, e dalla Romania.
Sarebbe pero a mio avviso sommamente ingiusto cir-
,coscrivere il valore e l'utilità dell'opera del Comitato Marittimo al solo ambito delle convenzioni internazionali.
Bisogna anzitutto riconoscere le grandi benemerenze del Comitato nel campo degli studi scientifiei del diritto marittimo. Vi è un risveglio in questo campo già in altri
tempi traseurato, e Tiesta rinascita degli studi, questo rinnovato fervore di indagini è dovuto indubbiamente in gran parte all'attivita del Comitato, il quale, spingendo le varie associazioni nazionali ad approfondire l'esame delle singole questioni, ha creato in ogni paese un movimento vivo e generale di studi, da cui ha tratto grande utilità questo ramo della giurisprudenza.
E per via indiretta poi, ma in modo profondamente efficace, l'influe.nza del Cornitato si insinua nella legislazione dei singoli Stati, anche indipendentemente dagli
effetti delle eonvenzioni in ernazionali. Gli studi e le proposte del Comitato, a cui partecipano studiosi di ogni nazione, costituiscono gia per sè un materiale prezioso, a cui è naturale che attingano le varie legislazioni nelle loro riforme. Vi furono Stati, come il Belgio e la Grecia, che introdussero nelle proprie legislazioni le norme proposte dal Comitato Marittirno anche prima che le convenzioni internazionali le adottassero. La recente legge Russa del 23 dice/ubre 1924 sulla assistenza e il salvemento in mare ha seguito, solo con qualche modificazione nei particolari, i prineipi della convenzione di Bruxelles, a cui pure runione delle repubbliche sovviettiste non partecipò. In breve, può dirsi che, nessuna nazione, la quale intencla M'orillare la propria legislazione marittima, puô prescindere dai risultati a cui le ricerche del Comi'rato sono pervenute. E sono lieto di dichiarare che nena riforma del Codice per la Marina Mercantile che è in corso di elaborazione in Italia, in seguito alla legge sulla riforma dei Codici decretata dal Parlamento italiano, gli studi del Comitato Marittimo hiternazionale sono presi in prima linea in considerazione.
Anche per questa via indiretta adunque, ma somrnamente efficace si fanno passi notevoli verso la meta dell' uniformità del diritto marittimo, perchè le varie legislazioni, influite dai risultati degli studi del Comitato, si orientano man mano verso idee fondamentali comuni, anche all'infuori degli obblighi solenni che possono derivare da trattati internazionali. Tuttavia non si deve credere che la unificazione del diritto marittimo sia meta vicina a raggiungersi. Anche in questo campo, che sembrerehbe il pi adatto ad una intesa generale fra i popoli, le forze che operano in senso particolare e nazionale son° potenti. Il sistema della coesistenza e dell'autonomia degli Stati, strettamente connesso
a quello dell'equilihrio politico proprio dei tempi moderni, conduce necessariamente anche alla specificazione e alla autonomia del diritto. La storia conosce indubbiamente periodi in cui l'unita del diritto in tutto o in quasi tutto il mondo conosciuto fu Una realtà effettiva. Basti ricordare l'epoca romana, nella quale cosi poSsentemente domin6 il diritto di Roma, e cosi profondamente si radicò nel costume di tutti i popoli lo spirit° del diritto romano, che non fu sufficiente il crollo dell'Impero dei.Cesari a interrompere questa formidabile tradizione giuridica, che per quindici secoli ancora durò e dura, non solo nei
paesi di lingua latina, ma anche in quelli germanici e slavi. E pur nel Medio Evo, nel periodo cinè della universale disgregazione, della moltiplicazione di sovranità con-
correnti spesso sullo stesso territorio, per viral della tradizione romana e per effetto della debolezza dello Stato, incapace d'imporre la propria legislazione, si formarono consuetudini giuridiche dominanti parti notevoli
del mondo conosciuto. Queste condizioni non esistono pifi nell'epoca moderna, e ciò spiega come E problema dell'unità del diritto si sia fatto negli ultimi secoli sempre pifi grave ed assillante. Manmano che si costituivano le grandi monarchie nazionali ed al caos mediovale usciva forte e ben temprato lo Stato moderno, che rivendicava a sè le funzioni tuttc della sovranità, l'opera di specificazione e di differenzazione del diritto secondo il genio, la cultura, gli interessi economici e politici dei vari popoli,
si faceva sempre più profonda. Nessuno dei grandi imperi moderni, che dominan° su zone dell'orbe terraqueo anche più v-aste di quelle su cui dominò l'impero romano,
ha potuto creare nulla che somigliasse anche lontanamente al prodotto immortale del genio giuridico di Roma.
Il diritto dei più grandi imperi moderni è restato un diritto particolare. E d'altro canto la cura gelosa, con cui gli Stati moderni rivendicano la propria .sovrana autonomia nel campo legislativo, ha reso impossibile la formazione di consuetudini internazionali imperanti generalmente, come all'epoca mediovale. E. in canclusione, le siesse condizioni storiche dell' epoca moderna sembrano creare ostacoli insormontabili alla unificazione del diritto. Mentre il mondo antico ci appare come l'epoca dell'unità del diritto, il mondo moderno ci appare come l'epoca della molteplicità dei diritti. Non devete immaginare, o Signori, che la constatazione di questa verità storica debba concludere con una nota di scetticismo sul risultato dei vostri, dei nostri lavori. Al contrario, guando ricordiamo la difficolta dell'impresa e l'opera compiuta, quale ho cercato brevemente di :Has-
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sumere nel principio di questo mio discorso, noi dobhiamo
trame motivo di alto compiacimento.
E' yero. Non esiste più oggi un impero che eserciti l'egemonia del diritto. E' yero; gli Stati sono oggi sufficientemente forti da non consentire facilmente la formazione di co.nsuetudini internazionali superiori alle legislazioni dei singoli Stati. E' yero : la diversità di condizioni economiche tra paese e paese, la necessita di difendere qui il capitale, .1à la mano d'opera, qui di conservare il predominio di una potente marina, lì di difendere una marina più debole, creano interessi nei singoli paesi diversi e talora antagonistici. Ma guando noi vediamo che,
malgrado tutte queste difficoltà gravi, non per ,la via dell'imposizione, ma per quella della persuasione, mediante un lavoro paziente di formazione di una coscienza giuridica unitaria nel campo rnarittimo e di una cultura e di una dottrina giuridica uniforme, il Comitato Marittimo Internaziona è riuscito ai risultati magnifici che io ho enumerato, noi abbiamo motivo di ammirare e di confortarci. Se aspro è il cammino, la volontà è indomita e la fede è tenace. M. LOUIS FRANCK. - Excellence, Mesdames, Messieurs.
Cette conférence et le Comité Maritime International sont profondément reconnaissants au gouvernement italien du
grand honneur qu'il veut bien nous faire par l'accueil que vous venez d'entendre. En tous temps, une conférence comme celle-ci pourrait se réjouir de recevoir pareil accueil sur cette terre oil est né le droit romain, et qui est une des terres classiques de la jurisprudence et de la législation. Mais j'ose bien dire, Excellence, que le
gouvernement italien, en décidant que trois de ses ministères les plus importants, celui des affaires étrangères, celui de la justice et celui des communications, feraient suivre
nos travaux par des délégués autorisés, nous a fait un compliment auquel nous sommes très sensibles. Il y a ajouté beaucoup en vous chargeant, M. le Ministre Rocco,
de prendre la parole en son nom, car en vous, n.ous entendons, non seulement un ministre éminent et un orateur plein de tact et de gait, mais nous saluons .aussi juriste du droit maritime qui a traité, pour sa thèse de doctorat précisément l'un des sujets, la limitation de la responsabilité des propriétaires de navires, qui nous a cofité tant de veilles et auquel nous continuons encore nous intéresser. C'est bien, je pense, la première fois, que nous aurons une aussi grande bonne fortune et, en ce temps, des ceuvres comme la Mitre en ont quelque besoin; car, il faut bien le reconnaitre, après la guerre, le spectacle Tie présentait le droit international était désolant. On pouvait croire que l'cruvre accomplie pendant plus d'un siècle vers plus de justice dans les relations entre les peuples, se trouvait anéantie. Mais votre Excellence a (lit la vérité: quels que soient les égards et
l'amour que nous devons tous a nos pays respectifs, aucune nation ne pent vivre sur elle-méme et la vie internationale est, au contraire, un des besoins in.compressillies de la conscience humaine. Et alors, aussi bien dans la sphère étendue de sa compétence, la Société des Nations, comme tous les hommes de bonne volonté, qui ont cette conviction, se sont, dans tous les pays, remis au travail courageusement. Le Comité Maritime International avait
eu la bonn.e fortune de voir épargner son ceuvre par la
guerre et les traités de paix confirment expressément les deux conventions internationales qui, avant 1914, étaient déjà sorties de nos délibérations. Mais il fallait reprendre cet effort. Nous l'avons fait, nous nous sommes réunis successivement a Anvers en 1921, à Londres en 1922 et à Gotbembourg en 1923. La conférence diplomatique de Bruxelles a repris ses sessions et aussi bien l'honorable ministre de la justice, que le professeur Berlingieri viennent de rappeler que trois nouvelles conventions, trois nouveaux codes maritimes internationaux sont soumis a la signature des puissances, a Bruxelles. 11 intéressera pen t-ètre cette assemblée que je lui dotme, à la date de ce jour, la liste des signatures qui ont été apposées sur ces instruments diplomatiques. Le code sur la limitation de la responsahilité des propriétaires de navires a été signé par l'Argentine, la Belgique, le Brésil, le Danemark, l'Espagne, la France, la Grande Bretagne, l'Italie, la Japon, la Pologne, la ville libre de Dantzig, et la Roumanie. Le code sur les privilèges et bypothèques maritimes a recueilli les adhésions de la République Argentine, du Brésil, de la Belgique, de l'Espagne, de la France, de la Pologne, de Dantzig et de la Roumanie. Le code international sur les connaissements porte déjà les signatures suivantes : l'Allemagne, la Belgique, l'Espagne, les Etats-Unis d'Amérique, la France, la Grande
Bretagne, Mahe, le Japon, la Pologne, Dantzig et la Roumanie, et en dehors de cela l'adhésion de plusieurs Rats importants est certaine. Dès à présent done, deux de ces codes maritimes internationaux ont réuni des signatures et sont certains
d'adhésions qui représentent près des 2/3 du tonnage maritime du monde. S'il manque quelques .signatures encore pour la troi-
sième de ces conventions, si certaines réserves ont été formulées, j'ai la conviction que ces difficultés ne sont pas insurmontables, de telle sorte que le tempS est près ou la loi maritime du monde sera unifiée pour l'abordage, pour rassistance et le sauvetage, pour la responsabilité des propriétaires de navires, pour les connaissements et, je l'espère, pour les hypothèques et privilèges sur navires. Eh bien, Messieurs, l'honorable Ministre vous a dresse,' en termes éloquents, et avec une grande précision, le ta-
bleau de nos efforts. Mais considérez un moment les et résultats que je viens de résumer. Alors qu'hier, même aujourd'hui encore, en attendant la mise en vigueur les conflits de loi en de ces nouvelles conventions,
matière maritime étaient nombreux, que le commerce, l'armement, les assurances, la finance internationale. rencontraient leurs risques, leurs incertitudes et leurs causes de dommages, voila qu'aujourd'hui tous ces maux sont sur le point de cesser et bientOt les navires de toutes les nations, tout au moins de presque toutes les nations importantes, rencontreront sur toutes les mers et dans tous les ports de l'univers, une méme loi juste et qui aura avant tout le mérii:e d'être une loi uniforme.
N'est-ce pas un résultat considérable, un résultat encourageant pour nos nouveaux efforts ? Assurément, il
a fallu près d'un quart de siècle pour obtenir ce
résultat, mais quand la moisson est bonne, il ne faut jamais songer au labeur qu'elle a cofité, il faut songer la semaille nouvelle, aux nouveaux travaux à entrepren-
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dre. Ce qu'il y a pour nous de mélancolique, c'est que taut de travailleurs de la première heure, tant de bons et fidèles amis qui sont partis avec nous pour cette croisade
du droit, ne sont plus parmi nous pour planter le drapeau de la victoire sur le champ où ils ont labouré. II y a Beernaert, Charles Lejeune. Autran, le Président F. Sieveking, Lord Alverstone, Sir John Gray Hill, et cette année mème, en dehors de notre éminent ami Paul Go-
vare, dont M. Berlingieri a rappelé la mémoire, nous avons perdu depuis la conférence de Gothembourg en Angleterre, un grand juriste et un ami dévoué, Lord Sterndale, le Master of the Rolls, qui fut, avec Sir Leslie Scott, le premier délégué de la Grande-Bretagne à la conférence diplomatique. Je salue la mémoire de ce grand magistrat et homme de bien. Nous avons perdu aussi un homme exquis, Sir Reginald Acland, le modeste et sympathique conseil de l'amirauté et qui, au cours de longues années, nous a rendu les plus grands services. En Grèce. un de nos bons amis, M. Typaldo Bassia, n'est plus des n6tres. En France, nous avons perdu, à. caté de Govare, Laurent Toutain et tout récemment un accident lamentable nous a pri-vés dans les pays seandinaves de l'appui sympathique de ce grand armateur, qui nous avait si admirablemew_ secondés il y a un an, M. B6strom. Mesdames, Messieurs, je salue la mémoire de ces bons ser-
viteurs du droit. Que leur exemple soit un encouragement pour tous les jeunes qui -viennent se joindre à nous et renforcer nos rangs. Nous sommes, d'ailleurs, très heu-
reux de voir encore parmi nous un certain nombre de ceux qui furent les pionniers de la première heure. Je ne les nommerai pas tons, mais comment ne pas saluer 20
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dans cette assemblée notre éminent collègue M. Loder,
premier président sortant de la Cour Permanente de Justice de la Haye. Comment ne pas saluer aussi Sir Norman Hill, que je crains un peu d'appeler un vétéran, parce que, comme M. Loder, il semble avoir le don de l'éternelle jeunesse. Votre Excellence, il y a un moment, a bien voulu rappeler que Pceuvre de Punification internationale du droit maritime, male après les deux conventions en vigueur et après les trois conventions nouvelles à la signature, ne sera pas achevée. Vous avez parfaitement raison, Monsieur le Ministre; la voie du droit international sur mer est long,ue et les ouvriers ne sont pas très nombreux. Et lorsque, quelquefois, on me dit : Mais maintenant le programme du Comité Maritime se trouvera épuisé )), je ne me flatte pas de cette illusion. II y a d'abord le droit public maritime. Nous en avons déjà entamé quel-
ques questions. E faudra bien aussi en cette matière arriver à faire l'unification. Nous avions en cabinet, avant
la guerre, considéré un certain nombre de principes, comme le respect de la propriété privée sur mer, le respect pendant la guerre des droits d'assurés. Ah, Messieurs, dans ce domaine, que de ravages. On parle de terres dé-
vastées ; le Droit International Maritime a aussi ses régions dévastées. Mais en pilote prudent, je ne me dissimule
pas que c'est une mer qui est grosse d'orages, qu'll y a de lourds nuages noirs à l'horizon et beacoup d'écueils sur
la route, et je pense que c'est avec prudence que nous nous engagerons sur cette voie. Mais nous n'abandonnons
pas l'espoir d'y appliquer nos méthodes positives. En attendant, quel beau programme ne soumettons-nous
pas A la conférence qui se réunit a Génes. Il comporte trois questions : Un code international de l'Affrètement, problème diffieile, très vaste, mais il faut bien nous
dire que les lois actuelles sur la charte-partie et sur l'affrètement datent du temps de la navigation a la voile. Elles ont été conves et rédigées A une époque où il n'y avait pas de vapeurs et, dans tous les cas, pas de lignes régulières, toujours pressées, ardentes de charger et de décharger, où il n'y avait pas de gran& ports puissamment otitillés, pas de câbles télégraphiques, pas une
vaste organisation d'assurance et de banque s'étendant sur le monde entier, transformant complètement les conditions de l'industrie maritime. Il faut examiner si une loi qui correspond A une situation toute différente de la situation moderne n'aurait pas intérét à ètre revisée et mise au point, pour qu'elle soit adaptée au stade actuel de l'économie maritime et de l'industrie des transports.
Puis, il y a le problème de l'immunité des navires d'Etat. Lorsque les Etats font du commerce et de l'industrie, ils rencontrent sans doute au début de la sympathie, de l'approbation et quelquefois méme des applaudissements; mais ils ne les rencontrent pas longtemps et il apparait souvent que l'Etat n'est pas un bon négociant, qu'il est un mauvais industriel, et qu'il n'est pas un meil-
leur armateur. (Rires). Mais quand alors l'Etat, faisant de l'armement, faisant le transport des passagers et des marchandises en concurrence avec l'armateur privé, qui l'Etat qui a (UP tant de peine a. vivre aujourd'hui, dépense royalement, parce que ce n'est pas son argent qu'il dépense, tandis que l'armateur doit protéger ses quand cet Etat se intérêts et ceux de ses actionnaires,
présente dans les ports et occasionne quelques dommages ou encourt quelque responsabilité, prétend se soustraire
aux tribunaux nationaux, a la procédure et à la saisie, auxquels ses concurrents privés sont soumis, on est tenté de dire, avec tout le respect que Pon doit aux pouvoirs publics, qu'il dépasse quelque peu la mesure. C'est encore là une question dont vous aurez à vous occuper, et je suis heureux de vous signaler que (-HA les Etats-Unis, par leur Public Vessels Act du 3 mars 1925, ont adopté les idées que vous avez approuvées a vwre réunion précédente. Il s'agit aujourd'hui de généraliser cette législation. Enfin, le troisième sujet est une matière nouvelle, due l'initiative de Sir Norman Hill c'est l'idée de régler, par la voie de l'assurance, les difficultés qui naissent de la responsabilité matérielle résultant du transport des personnes par mer; idée tout-a-fait moderne et hardie, qui a soulevé d'abord de l'opposition, mais qui commence recueillir de plus en plus d'adltésions : c'est de substituer :
la conception de la responsabilit(T. du droit commun, avec
tons ses aléas et risques deDrocès, l'idée du risque garanti, avec sa certitude, sa sin-10_6+,6 et sa précision. C'est une idée de grande portée générale aussi, car elle s'adresse
tous les passagers; elle intéresse au premier chef les plus pauvres d'entre eux, et surtout les émigrants. Et, voyez-vous, l'émigration, on peut bien la combattre, Parrèter à certaines licures; mais que serait le monde, que serait l'aspect des pays d'outre-mer, s'il n'y avait pas eu de colonisateurs et d'émigrants (Applaudissements). L'émigration est un des grands leviers de l'industrie, et un des besoins de la civilisation. Par conséquent, nous faisons .sagement de nous occuper de lois internationales qui
doivent la régir et nous sommes particulièreme.nt heureux que le Bu.reau International du Travail ait envoyé cette conférence une délégation importante pour suivre nos travaux.
Mesdames et Messieurs, il me reste maintenant un devoir fort agréable à remplir. Ma tache, comme Prési-
dent, est terminée et j'ai à vous proposer le Président effectif de cette conférence. En toute justice, nous le choisirons en Italic par égard pour la grandeur de ce beau
pays, dans le berceau méme du droit, parce que nous sommes cliez lui, parce que tant d'Italiens aussi, des hommes d'Etat, comme deux anciens présidents du Conseil, les honorables Paul Bosse11i et Orlando, des juristes comme votre ancien président, M. Alberto Marghieri de Naples, a qui j'envoie notre cordial saint et que seul l'état de sa santé empéche d'être parmi nous; comme le grand avocat Caven i de Génes, comme Lebano de Venise, comme
Vio de Trieste, figurent avec honneur dans nos annales. Mais, il en est un que je n'ai pas nommé encore qui, depuis le début de notre ceuvre, depuis plus de 25 ans, a été de tous nos travaux, de toutes nos conférences, de toutes nos peines et de toutes nos joies et qui toujours
nous a apporté, avec sa science profonde du droit, sa haute intelligence, ce clair bon sens et cette largeur d'ame,
sans lesquels on n'est pas un grand avocat et un grand juriste : j'ai nommé le professeur Francesco Berlingieri. (4pplaudissements.) Vos acclamations me montrent que vous ratifierez ce choix, lorsque l'un des membres de la conférence aura bien voulu seconder ma proposition. Ce sera, d'ailleurs, aussi un remerciement pour la magni-
- 302 fique délégation que l'Italie et l'Association Italienne de Droit Maritime ont bien voulu envoyer à cette conférence. ***
E per noi una vera gioia che questa conferenza la seconda che noi convochiamo nella terra classica del diritto si riunisca a Genova, in questa nobile citta, la cui gloriosa storia uguaglia la sua incomparabile bellezza e che dopo essere stata nel Medio Evo una delle due sovrane del Mediterraneo, ha saputo, con l'energia dei suoi figli
ed il vigore della grande Italia moderna, riprendere posto di uno dei primi porti del mondo. La grande opera cui voi collaborate merita per sè stessa tutto l'interesse pubblico. Ma essa ha anche una valuta di più generale umanità. Ciò che voi fate a favore del commercio marittimo insomma contribuzione a opera legislativa internazionale. Ogni vostro successo è la dimostrazione vivente che al di la delle frontiere vi sono dei grandi interessi comuni a
tutti i popoli civili, e che quivi almeno vi è anche una coscienza comune da quello che è giusto ed ingiusto, di ciò che deve cadere nell'obblio del passato e di quello che è degno di vivere nell'avvenire. ***
M. LOUIS FRANCK. - La parole, est au représentant de la ville de Gènes. L'honor. EUGENIO BROCCARDI, représentant de la ville
Eccellenza, signore, signori. In nome di de Ganes. Genova che oggi ho Porgoglio di rappresentare, io vi porgo un fervido e cordiale saluto, e ringra.zio in modo parti-
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colare l'illustre Presidente delle magnifiche e cordiali espressioni che egli ha rivolto alla citta di Genova. E' un grande onore per Genova ospitarvi, ed è un grande onore per noi accogliere nella nostra città la vostra solennè riunione alla quale è presente e da lustro S. E. l'on. Rocco, che con i nuovi ordinamenti legislativi, ai quali voi, o signori, recherete il contributo del vostro sapere, si accinge a dare al nostro paese un corpo di leggi
degno dei tempi nuovi e dell'Italia sorta da Vittorio Veneto.
Voi venite a ragionare iniorno alle leggi marittime in questa terra di marinai, .fra queste mura che videro passare nei secoli generazioni di navigatori, che ascoltarono le loro grida di vittoria, che udirono le loro contese, i loro sogni, le loro tragedie sui mari; tra queste mura cittadine che videro trascorrere, muta e pensosa, l'austera figura di Cristoforo Colombo, oggi si insedia il vostro solenne Congresso, al quale recherete la voce ed il pensiero dei popoli marinan. Genova d'oggi, tutta presa dalla sua febbre di lavoro, tutta intenta con lo sguardo al suo mare, conosce e valuta l'importanza del vostro congresso. Voi direte qui la parola alta, la parola giusta e noi aseolteremo le vostre disser-
tazioni con reverenza e profondo interesse. Possa dalla citta natale di Giuseppe Cesaregis sorgere per vostra virtù la nuova legge di diritto marittimo, e possano da questa universita partire nuove norme per la prosperitit nazionale ed il benessere dei popoli, che voi, o signori, degnamente rappresentate.
In questa fiducia io do ancora a voi tutti il cordiale saluto di Genova. (Applaudissements).
804
M. B. C. J. LonER (La Haye).
Excellence, Mesdames,
Messieurs. Je vous remercie de tout cceur de l'occasion que vous me donnez de vous remer der chaleureusement de l'accueil si splendide que vous et votre gouvernement avez préparé pour nous qui venous de loin, et de vdus dire en inkne temps combien nous sommes heureux de
nous réunir sur le sol d'Italie. Nous sommes heureux d'avoir pu fouler à nouveau ce sol hospitalier. Si nous voulons faire quelque chose dans la voie de Funification
du droit, où Pouvons-nous mieux aller qu'en Italic, le pays classique des Romains qui out été les législateurs di monde? Pendant tout le moyen4tge, les juriseonsultes liens ont été les premiers du monde et ont toujours mon-
tré le chemin aux autres nations. Et si nous nous occupons spécialement du droit maritime, où pourrions-nous kre mieux qu'à We/1es, ce port si plendide q-ui renouvelle les belles traditions italiennes du passé et qui réunit dans sa rade le commerce du monde entier? Quand je parle de Gésnes, il est une autre conférence en Italie qui me vient à l'esprit, c'est celle de Venise en 1907, qui figurera toujours en lettres (For dans nos annales, parce que c'est la que, pour la première fois, on a réalisé l'accord entre la Grande Bretagne et les pays continentaux sur la question si difficile de la responsabilité des propriétaires de navires. En parlant de Venise, j'évoquerai le souvenir de ces grands hommes qui nous ont second& alors. M. Franck les a nommés Ma, et je ne rappellerai pas leurs noms. Nous ne reverrons plus parmi nous ces collègues qui ont payé leur tribut à la nature, mais heureusement, d'autres nous sont laissés et, en premier lieu, c'est vous, M. Berlingieri, qui nous étes resté, qui nous
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avez conservé toute votre vie, votre talent, votre clarté d'esprit et la chaleur de votre cceur. Vous serez aujourd'hui noire guide et nous discuterons sous votre direction.
Je suis bien certain que, sous la présidence d'un de nos plus anciens amis, notre conférence de Gênes sera aussi fructueuse que les autres, qu'elle sera une perle nouvelle A la couronne juridique de l'Italie.
M. LOUIS FRANCK. - I now call upon Sir Norman Hill.
Mr President, you have called upon me, as I understand it, as one of the ancient members of the Committee. NOW Sir, in that capacity I support most heartily the words you have addressed to this meeting expressing our thanks to the Government and to the City, and to all in Genoa. I cannot pretend to attain to your eloquence and the charm with which you have expressed the thoughts of us all, but Sir, I would like to add one or two words. I would like to emphasise a point you have made that here Sir NORMAN HILL.
in this City of Genoa we feel that we are in the right atmosphere to discuss the problems before us. We think and I am now speaking for the shipowners and the commercial men to whom you have referred that these problems should be discussed in a business atmosphere and not in a legal atmosphere. We may be quite wrong, but we think that whatever laws are made, the peoples of the world expect their merchants, their shipowners, and their bankers to carry on international trade just the same. Sometimes_ we who have to carry on are a little
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puzzled why the laws are made; but we generally, even if they are very difficult, find a way round them and we carry on. (Laughter.) You know, Sir, I think sometimes the lawyers should be a little modest. (Hear, hear !) They can do great things, but when they have done all they think is necessary, the world comes along and adjusts the price of the obligations that are imposed by law on this person or on that person, and the prices stand until the laws are changed again, and then the prices change again and in the end you will find in international trade that the final adjustments are made in the price and not by law. Now, Sir, speaking for the Maritime interests, what we do value in the work of a Committee, such as this, is securing uniformity. We want justice; we want to uphold high traditions and straightforward dealings; but let us say what we have to sell honestly; let us declare the services we are ready to give, and the conditions we are ready to give them on. Let us state those honestly. Then we must make the price which will cover the services, and the law must see that we carry out what we have promised to do. And, Sir, we do attach, as you have emphasised, importance to the commercial, shipping, and banking and all the other trading interests being here to consult in the carrying on of our work. We feel, Sir, that we are in the right atmosphere, in a City that. can show you Bills-ofLading, dating froM 1390. We in England cannot do that. We are in a City that has lived for generations on trading, and the basis of trading is that there is not only a seller but also always a buyer, and if you are to make a good
bargain, and if you are to keep your customers, every bargain must be a good one for both sides. That is the atmosphere we have here in Genoa, and I believe that our efforts inspired by that atmosphere will be fruitful. (Hear, hear !) M. RENÉ VERNEAUX (Paris).
Au nom de l'Associa-
tion frainaise du Droit Maritime, qu'il me soit permis d'exprimer notre profonde gratitude pour les paroles de cordiale bienvenue qui nous ont été adressées. Si Phonneur m'échoit de prendre à mon tour la parole pour y répondre, c'est parce que je suis l'un des plus anciens membres du Comité Maritime International, que j'ai participé à ses premières conférences avec l'éminent président
Loder et avec l'éminent président de l'Association Italienne de Droit Maritime. Commencées, il y .a vingt-huit ans, ces conférences se sont poursuivies avec succès jusqu'à celle qui nous réunit aujourd'hui dans cette illustre
cité de Gènes, qui déborde pour ainsi dire de glorieux souvenirs historiques et de trésors artistiques et qui continue son splendide passé par le plus fécond des labeurs maritimes. Ce labeur sera notre exemple et j'ai la conviction que la conférence de Gènes, sous la haute direction
de M. Berlingieri, héritier des illustres jurisconsultes italiens, continuera de la manière la plus heureuse la série de conférences inaugurée en 1897 en vue de l'unification du droit maritime. M. le Dr ALFRED SiEvEKING (Hambourg).
Excel-
lence, Mesdames, Messieurs, c'est le souvenir de mon père, le Président Friedrich Sieveking, qui a présidé à vos
conférences, qui m'enhardit A vous adresser quelques paroles. Moi-mème, je suis aussi un des anciens collabo-
rateurs du Comité Maritime International aux travaux duquel j'ai été initié depuis plus de vingt-cinq ans. Aujourd'hui, c'est au nom de mes amis allemands que je liens A vous remereier et A vous exprimer nos sentiments
de profonde reconnaissance pour l'occasio.n que vous nous avez donnée de nous réunir clans cette ville illustre pour y continuer nos travaux. Il y a dix-huit ans, nous avons mis la première pierre de notre édifice en Italie, car c"est à Venise que nous avons posé les premiers fondements de l'avant-projet de traité sur la Limitation de
la Responsabilité des Propriétaires de navires et de l'avant-projet sur les Privilèges et Hypothèques maritimes. C'egt Phalle qui a présidé à notre baptème. C'est une heureuse coincidence qu'aujourd'hui l'Italie nous ait invités pour assister à notre confirmation et pour célébrer notre majorité. Ce n'est pas seulement la glorieuse histoire de cette communauté maritime qui nous fournit un sol fécond dans lequel peut fleurir et grandir cette fleur, si chétive autrefois, de l'accord universe'. C'est aussi l'activité et l'industrie des citoyens de cette ville commerciale dont la prospérité toujours croissante nous montre ce que l'homme peut réaliser si seulement il veut persévérer. Mais c'est surtout l'accueil chaleureux qui nous a été fait par les autorités de cette ville de Gènes qui est un garant du succès de nos travaux. C'est avec cet espoir, cette conviction, je puis mème dire cette certitude, que nous vous remercions de tout notre coeur. (.pplaudissements.)
".-309
M. LE PliSIDENT. Scott.
Je donne la parole a Sir Leslie
M. le Président, Excellence, MesSir LESLIE SCOTT. dames et Messieurs, au nom de la délégation britannique, jai l'honneur d'appuyer chaleureusement et avec un sen-
timent solennel, la proposition de M. le président du Comité Maritime International, pour que la conférence choisisse notre ami Signor Berlingieri, comme Président de nos travaux. 1.1 est, parmi les membres du Comité, quelques-uns qui ont eu, comme moi, l'honneur de connaitre M. Berlingieri pendant plus d'un quart de siècle. Nous avons toujours trouvé en lui une combinaison de toutes les qualités qui sont essentielles en cette ceuvre de l'unification du droit maritime. Il joint une science profonde du droit a un grand bon sens naturel qui, comrne l'a dit notre ami, Sir Norman Hill, est si nécessaire pour les choses commerciales; il joint le zèle du jeune homme la .sagesse des anciens; ii est toujours jeune, et je remarque, très heureusement peui-ètre pour notre ceuvre, qu'il est de ceux, parmi les travailleurs de cette ceuvre de l'unification du droit maritime, qui conservent pour nous une jetmesse éternelle. Mesdames et Messieurs, permettez-moi d'ajouter un mot a titre personnel : M. Berlingieri a été .envers moi
un excellent ami pendant vingt-cinq ans et j'apprécie hautement clamations.)
privilège de seconder la proposition. (Ac-
Je considère vos acclamations comme ratifiant la proposition que nous avons, Sir Leslie M. LOUIS FRANCK.
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Scott et moi, Phonneur de vous faire et je proclame, en conséquence, M. Berlingieri comme Président de la quinzième conférence du Comité Maritime International. M. BERLINGIERI. - Excellence, Mesdames, Messieurs, je suis profondément touché par toutes les bonnes paroles
qui viennent d'être prononcées à mon adresse et j'exprime toute ma gratitude pour le grand honneur qu'on fait à l'Association Italienne du Droit Maritime en appelant son président à diriger les travaux de la conférence. Je vous en remercie beaucoup et j'adresse mes remerciements tout spécialement au Président du Comité Maritime International, mon ancien ami Loder, et à mon vieil ami, Leslie Scott. Je vous remercie de tout cceur. Je vous propose maintenant de nommer, comme seer& taires généraux de cette conférence : M. Frédéric Sohr et M. Léopold Dor. (Applaudissements.) Les vice-présidents et les secrétaires-adjoints seront désignés à la séance de cet après-midi. Nous abordons maintenant la discussion du premier objet à l'ordre du jour
Assurance obligatoire des Passagers. M. LE PRÉSIDENT. - La parole est à M. Ripert.
M. RIPERT. - Si quelqu un devrait prendre la parole le premier, sur ce sujet de l'assurance obligatoire des passagers, ce serait très certainement Sir Norman Hill, qui est le père du projet que nous aurons à discuter. Je me suis pourtant soumis à la demande de M. le Président, de commencer cette discussion. Sans doute, Sir Norman
- 3i1 -
Hill aurait eu tour l'assurance obligatoire trop de tendresse paternelle, tandis que je vous apporte l'opinion de l'Association Française du Droit Maritime qui, tout d'abord, était assez hostile au projet qui lui était présenté, mais s'est ralliée, lors de la commission réunie a Paris et
aux séances qui ont suivi cette commission, a-u projet présenté par nos amis anglais.
Ce projet, d'après les' communications faites par les associations nationales étrangères, soulève encore des objections et préte à certaines critiques. Il s'agit, pour
le moment, et sans entrer dans les détails de la
dis-
cussion, de vous indiquer en quelques mots les raisons profondes qui doivent vous amener dans cette Conférence
aboutir, d'une façon certaine, a un avant-projet ferme sur l'Assurance Obligatoire des Passagers. Ce qui étonne dans ce sujet, e'est sa nouveauté. Jusqu'ici,
le Comité Maritime International s'était principalement occupé de questions où les conflits de la loi étaient craindre ou a redouter, et il cherchait, par des conventions internationales, le moyen de les résoudre ou de les prévenir. Aujourd'hui, on vous convie à faire une ceuvre nouvelle et à introduire dans les codes maritimes une notion qui n'existe pas encore, une institution qui ne fonctimme, je crois, dans aucun pays : celle de l'assuran.ce obligatoire. II faut done faire ceuvre de novateur et c'est là qu'est la difficulté. Mais cette (euvre est, je crois, indispensable, et c'est pour cela que nous devons travailler à la réaliser. -Elle est indispensable parce que, si l'on supporte encore
aujourd'hui, dans, certains pays, que les passagers se trouvent, en cas de mort ou de blessures, sans aucun recours, il me parait certain que, dans quelques années,
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On ne.le supportera plus, et mieux vaut prévenir des pro-
jets nationaux, par une convention internationale bien faite que de les subir quand ils auront été élaborés par les Parlements des divers pays, de favan peut-ètre très divergente. Vous savez, en effet, qu'à l'heure actuelle, par la .nouvelle Convention sur les Connaissements, on a ob-
tenu que les chargeurs aient une certaine garantie pour leurs marchandises. Quand cette convention sera mise en vigueur, il ne sera plus permis aux armateurs de s'exo-
nérer de toute responsabilité en ce qui concerne les marchandises qu'ils transportent, II ne faut pas croire qu'à ce moment, on pourra tolérer longtemps dans les divers pays, que les armateurs continuent a s'exonérer de toute responsabilité quant aux pasSagers qu'ils transportent sur leurs navires. La convention qu'ils ont acceptée malgré la surcharge de responsabilité qu'elle crée pour eux, cette convention relative aux Connaissements, entraine, comme suite fatale, une convention relative la responsabilité envers les passagers. D'autre part, comme vous le savez,- l'initiative du Co-
mité Maritime Liternatioilal aété contmandée par une intervention extrniement pressante venue du côté du Bureau International du Travail, qui se préoccupe de la situation des émigrants. Le Bureau, considérant .que son rôle de protecteur des travailleurs ne devait pas cesser le jour où les émigrants quittent leur pays, pour ètre transportés aux pays de destination, s'était ingénié à trouver,
dans un projet d'assurance contre la mort ou l'invalidité, une protection pour ces émigrants. Le Comité Maritime International a fait observer avec raison, semble-t-il, que l'émigrant qui se trouve à bord d'un
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navire n'est qu'un passager comme les autres et que, d'ailleurs, on serait peut-ètre très en peine de trouver, au point de vue juridique, une différence précise entre l'émigrant passager et le passager proprement dit. Le Comité
Maritime International a done revendiqué pour lui la compétence en matière d'assurance obligatoire de passagers, y compris les émigrants. Mais, il ne faut pas nous faire d'illusions. En revendiquant cette compétence, nous avons pris jusqu'à un certain point l'engagement moral d'arriver A un projet qui donne satisfaction A ce que l'organisai ion internationale du Travail considère comme une protection nécessaire de l'émigrant. Et si nous n'arrivions pas, nous, à mettre sur pied un projet d'assurance obligatoire donnant satisfaction à cette protection, il est cerain
que ce projet, en ce qui concerne les émigrants, serait repris d'un autre côté, et résolu peut-ètre sans considération suffisante des véritables intérêts de l'armeMent. Ce sont 1A, me semble-t-il, des raisons profondes qui doivent désarmer certaines hostilités qui se sont fait jour du côté de l'armement contre le projet d'assurance obli-
gatoire des passagers. On a cru qu'il y aurait, dans ce système, une nouvelle charge imposée aux armateurs qui, par suite de la concurrence internationale, se trouveraient impuissants à récupérer sur les passagers les primes d'as-
surance et auraient, par conséquent, A supporter de ce chef une majoration de leurs frais d'armement. On pourrait d'abord répondre que si la mesure est internationale, elle ne peut porter préjudice aux armateurs d'aucun pays et que les primes, séparées ou incorpeu importe, pèseront également sur tous les armements; que, dans la concurporées aux billets de passage,
21
- 3R rence internationale, la situation sera done exactement la mème.
Mais surtout, il y a, au point de vue juridique, des raiso:ns sérieuses pour abandonner, en ce qui concerne les cas de mort et d'accidents de passagers, le système de la responsabilité civile en vigueur à l'heure actuelle. Le système de la responsabilité basée sur la faute personnelle de l'armateur ou dit transporteur se comprend parfaitement lorsqu'il s'agit d'une faute aceomplie par
une personne qui peut prévoir ou empacher eertains dommages. Mais le système de responsabilité ne se com-
prend plus dans les entreprises modernes, aux rouages extrèmement nombreux, au mécanisme extrèmement compliqué, où on ne pent demander à un homme la vigilance
et la prévision nécessaires pour éviter taus dommages.
C'est ainsi que dans tons les pays du monde, en matière d'accidents du travail, on a abandonné le principe de la responsabilité basée sur la faute, pour y substituer un régime de risque professionnel, un système d'assuranee obligatoire. Les patrons et les industriels ont été, tout d'abord, hostiles à ce système. Ils disaient, comme certains armateurs disent aujourd'hui: c'est un surcroit de responsabilité qu'on nous impose. Ils se sont aperçus, par la suite, que grâce -A ce système d'assurance, ils avaient
gagné au point de vue sécurité, ce qu'ils avaient perdu au point de vue responsabilité; que pouvant ainsi calculer
les charges, leur situation était meilleure que lorsqu'ils étaient exposés à une responsabilité dont ils ne pouvaient
ni prévoir la nature, ni éviter le fardeau. La situation est exactement la mame dans les transports maritimes. Les armateurs ne peuvent prévoir, ni la
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nature, ni l'importance des dommages dont ils auront supporter la responsabilité. Ils se couvrent à l'heure actuelle comme ils le peuvent; ils se couvrent par des clauses qui sont tolérées par certains pays, qui sont condamnées dans d'autres et qui, demain peut-kre, seront défendues partout. Mais déjà la jurisprudence en France a fait &later cette protection. C'est ainsi, par exemple, que lorsque les héritiers d'un passager plaident contre un amateur, les tribunaux de France ont une tendance &darer que ce recours n'est plus soumis au contrat de transport. On peut s'attendre à voir ces actions partout et toujours recues et, comme dans tous les pays les tribunaux accordent des indemnités de plus en plus larges titre de dommages, il est probable que la jurisprudence des divers pays accordera des indemnités de plus en plus fortes à certaines victimes d'un abordage ou aux parents des passagers qui auraient été tués en cours de transport. Il faut done, si on ne veut pas arriver à l'incohérence, l'imprévu et l'arbitraire des décisions de justice, trouver sur ce point une législation uniforme. Vous comprenez que toutes les règles ordinaires de responsabilité &latent lorsqu'on se trouve en présence d'un dommage tel que celui résultant de la mort d'une personne. Qui a le droit d'agir? Pour quelle somme? Quelle est Pindemnité qui sera accordée? A l'heure actuelle, nul ne le sait. Même dans notre pays, nous sommes incapables de dire de faon certaine, en cas de mort, quels sont les parents qui ont le droit d'agir, et l'indemnité à accorder dépend uniquement de l'arbitraire du tribunal qui apprécie le dommage moral et accorde, tantôt une indemnité très forte, tantôt une indemnité purement nominale.
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Je le répète, si à l'heure actuelle les armateurs ne voient pas toujours ce danger, c'est panic que les armateurs sont couverts par les clauses de non-responsabilitc, et comme il s'agit presque toujours d'une faute du capitaine ou de l'équipage, ils ne supportent de ce chef aucune espèce de responsabilité. Je crois que La est le noeud du problème. L'hostilité de certains s'explique quand ils comparent ce qui existe avec ce qu'on veut créer. Es disent qu'ils ne sont pas responsables à l'heure aCtuelle, et que demain ils seront obligés d'assurer. Mais je voudrais qu'ils considèrent le danger qu'ils courent si ces clauses d'irresponsabilité perdent à bref délai toute efficacité a la suite des lois introduites déjà dans certains
pays, en préparation dans d'autres. Combien il serait préférable d'avoir une législation uniforme, à la suite d'un
projet élaboré par le Comité Maritime International et s'appliquant à tous les passagers, leur permettant done de calculer exactement leur responsabilité, de doser leurs primes et de trouver les garanties nécessaires a une bonne exploitation.
Qu'il y ait des réserves a faire sur le projet adopté par la Commission de Paris, c'est indiscutable. Considérez pourtant quel est (Nà le progrès immense réalisé. La Conférence de Gothembourg s'est réunie sur des vceux des associations nationales, en général toutes favorables au projet &assurance obligatoire. Quand la
Commission de Paris a tenu sa première séance, ce projet restait encore dans le vague; mais lorsq-ue, après
la troisième séance, Sir Norman Hill déposa ce texte précis qui vous a été distribué et qui, réserve faite des chiffres, prévoit a peu près toutes les hypoth4es,
3I7
semble qu'un voile se soit déchire et que tout de suite on concrète et precise. Ceux qui n'ont pas suivi les travaux de la Commission de Paris sont peut-être encore rest& dans l'état d'esprit déjà ancien où le projet d'assurance obligatoire était un projet brumeux et vague; mais avant la Conference de G:énes, ce projet se présente sous la forme d'un texte établi sur lequel demain des amendements pourront sans doute se produire, mais qui a tout au moins l'avantage de poser la question de fa_c:on extr'emement claire. Et j'ajoute que si ce projet d'assurance obligatoire doit réussir, c'est bien dans cette Conférence, car nous sommes dans un pays oil les questions d'armement ont une importance capitale,
où l'on s'est &jà préoccupé de la protection des emigrants, où une grande conference s'est tenue sur l'émigra-
tion l'an dernier et où l'on est convaincu qu'il faut que la grande majorité des passagers qui sont transportés par mer, et dont tout le capital consiste en leur force de travail, trouvent dans la legislation maritime, une protection q-u'ils n'ont pas actuellement, et qu'ils ont dans toutes les legislations terrestres du monde. Vous aurez à examiner s'il convient de limiter le projet aux seuls emigrants ou si, au contraire, il faut Pétendre tous les passagers; mais je suis convaincu que, considérant l'assurance générale obligatoire comme un progrès
nécessaire dans les legislations du monde, vous ne refuserez pas d'en apprécier le principe et de consacrer vos efforts à l'amélioration du projet. (Verbal translation by Mr LEOPOLD DOR.)
Professor Ripert observed that it is a new departure to try and make
318
a convention on the compulsory insurance of passengers. Up till now, the International Maxitime Committee had to (leal with the codification of
subject matters which are already embodied in the laws of the various countries; but on the matter of insurance of passengers, there is no law in any country, so that the International Maritime Committee is trying not to unify things which exist already, but to make an absolutely new law which will be the law of the world. This is certainly a difficult task, but it is absolutely neeessary to undertake it, and the chief reason is that at present, shipowners cannot have the saine exceptions in their bills-of-lading about their liability for cargo. Now that the Hague Rules have passed or are about to pass into the legislation of the various countries, the shipowner cannot free himself from responsibility for the cargo. Therefore it is not to be expected that for
a long time he will be able to free himself from liability in respect of passengers. Surely, the same principles which have been adopted in the Hague Rules for cargo will come to be enforced in respect of passengers. It is better to foresee what is going to happen and to devise the means uf meeting this case. Also, there is the question of emigrants. This has already been tackled by various organizations, and among them the International Labour Bureau of the League of Nations. But the International Maritime Committee has
stepped'in and said that after all, the emigrant is a passenger; that it is often very difficult to distinguish between an emigrant and an ordinary passenger; when you want to draw a line, then you see at once the great difficulty of doing so. The International Maritime. Committee therefore claimed that the task of dealing with tbe emigrants was part of its work; and it is through the proposed convention on compulsory insurance of passengers that the question of emigrants will be dealt with. The French shipowners apparently, os- at least some of them, were objecting to the proposed convention on the ground that it will mean for them an increase of cost. Indeed, the, say that they are already burdened and even over-burdened, with all sorts of charges which are put upon them by the legislators in the various countries-. that the result of the convention will be that the shipowner will have to reckon with increased costs. Professor Ripert says the answer is, that as long as such expenses are put upon the shoulders of the shipowner by an international convention, he has nothing to fear, because as then all shipowners of the wor/d will have to bear the same charges, they will s-urely include these charges
in their freights and they will all be on the same level. Further, shipowners should consider that the time is passed when the question of liability of the shipowners in respect of passengers inay dealt with on the principles of common ,law. Common law was all very well at the time when there were only small ships with a few passengers
on board; but with the great liners øf to-day having lists of passengers like a small town and where it is impossible for the shipowner to know every single detail of the ship and what is going on board, the principles of common law do not meet the case any more. We have already seen that on land, in the big industries, common law has been done away with and a system of workmen's compensation, or « insurance against labour accidents» as we call it in France, has been accepted by all the great industries. Why would we not apply the same to the industry of carrying passengers by sea? It is true that the shipowner feels rather safe at present because he is protected by the clauses which he inserts in the passengers' tickets; but signe are showing in every country
that the Courts try more and more to go round those clauses or overrule them.
Professor Ripert quoted a wel known decision of a French Court holding that when the relatives of the deceased passenger sue the shipowner in their own right, the shipowner is not protected by the clauses in the passage-ticket; they say that the widow or children, for example, are not parties to the contract of carriage; therefore, their rights are considered according to common law and the shipowner cannot rely on those clauses.
Professor Ripert summed up the position by saying : If some shipowners hesitated to accept this new principle, it is because they compare what they have got at present with what is proposed to them and they say :
«What we have now is more favourable than what you want us
to accept.» But they must realise that what they have got will not last for two reasons : the first reason is that the clauses of exception now inserted in tlie passenger-tickets will be more and more down in every country, so that this kind of protection will give way. The second reason is that the emigrants question is one which will be dealt with, if not by the Inter-
national Marithne Committee, then by some other organization, whether the shipowners like it or not. The Govermnents of those countries especially, who export a great many emigrants, will tackle the thing themselves and if they make their laws and regulations without the assistance of the shipowners and outside of the International Maritime Committee, then the shipowners may have to face rules which will be far more drasiic than anything which is being prepared here.
For these reasons, Professor Ripert thinks that the draft we have now before us ought to be discussed. Of course, it is liable to be amended; but
he strongly recommends that this draft should be taken as a basis for your discussions. He points out that we made very quickly headway in that
respect, thanks to the excellent draft which Sir Norman Hill put before the Paris Committee. The question of insurance of passengers had already been dealt with in Gothenburg and had been left there in the air. But when
320
Sir Norman Hill came forward with his draft, then as Prof. Ripen the veil was torn asunder and light was thrown on the expressed it, merits of the question. It is in this city especially that this question ought to be discussed, because if there is one country in Europe which attaches a great importance to an international regulation for the carriage of passengers, it certainly is Italy, which has such vital interest in the problem of emigration.
Je suis sfir d'être l'interprête de toute la Conférence en adressant nos vifs remerciements l'illustre professeur de l'Université de Paris, pour le rapport qu'il nous a fait sur la matière de l'Assurance M. LE PRÉSIDENT.
Obligatoire des Passagers. Nous remettrons la suite de nos travaux à la séance de cet après-midi.
La séance est lévée it 12.50 heures. The Conference adjourned at 12.50 p.
LUNDI, 28 SEPTEMBRE 1925. MONDAY, 28th SEPTEMBER 1925.
SEANCE DE L'APRES-MIDI. AFTERNOON SESSION.
La séance est ouverte à 2.30 heures sous la présidence de M. le Professeur FRANCESCO BERLINGIERI.
The Conference resumed its labours at 2.30 p. m., Prof. FRANCESCO BERLINGIERI in the chair.
M. LE PRSIDENT. - Avant de reprendre la discussion,
je dois donner connaissance a la Conférence des communications arrivées au Bureau de la part des personnages qui ont tenu à justifier leur absence Son Excellence le Ministre des Communications a télé-
graphié ce qui suit o Do'elite non poter presenziare inaugurazione conferenza internazionale diritto marittimo, ringrazio vosIsignoria cortese invito assicurandola seguiro con vivo interesse lavori dell'importante convegno che non dubito saranno degni delle tradizioni gloriose di Ge» nova ed imprimeranno nuovo impulso alla unificazione » degli ordinamenti marittimi. » CIANO.
Son Excellence le Ministre de l'Economie Nationale a envoyé la lettre suivante :
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« Illmo Signor Presidente, ho molto gradito l'invito cortese che Ella, cosi gentilmente, mi ha rivolto per presenziare l'inaugurazione della XV Conferenza internazionale di diritto Marittimo che avra luogo 28 corrente e molto volentieri avrei aderito al suo desiderio se per ,disposizioni di S. E. il presidente in tale
giorno non dovessi recarmi a Trieste in rappresentanza del Governo per presenziare l'inaugurazione del Mi II congresso dei tecnici metallurgici Italiani.
è grato fin da ora, fare voti per il risultato del congresso predetto e prego di rendersi interprete dei miei sentimenti verso I consociati. Mi abbia con ogni osser» vanza. » BELLITZZO.
Nous avons également des lettres d'excuses de Son Excellence le Professeur Giuseppe De Michelis, Commis-
saire Général de l'Emigration; de Son Excellence M. le Sénateur Mariano D'Amelio, Premier Pré,sident de la Cour de Cassation du Royaume; de Son Excellence le Président du Conseil d'Elat Sénateur Perla; de Son Ex-
cellence le Premier Président de la Cour d'Appel de Florence, Giannatasio; de Son Excellence le Premier Président de la Cour d'Appel d'Ancone, Marracino; de Son Excellence le Procureur Général du Roi à la Cour d'Appel d'Ancone, Campolongo; de Son Excellence le Premier Président de la Cour d'Appel de Bologne, Alberici; de Son Excellence le Procureur Général du Roi à la Cour d'Appel de Bologne, Rocca; de Son Excellence le Premier Président de la Cour d'Appel de Naples, Conte; de Son Excellence le Premier Président de la Cour d'Appel de Turin, Casoli; de Son Excellence le Premier Pré-
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sident de la Cour d'Appel de Trieste, Margara; de son Excellence le Procureur Général de la Cour d'Appel de Trieste, Facchinetti; de Son Excellence le Procureur Général du Roi à la Cour d'Appel de Venise, Castellani; de Son Excellence le Procureur Géné,ral du Roi a la Cour
d'Appel de Palerme, Giampietro; de Son Excellence le Président de Section de la Cour de Cassation du Royaume,
Tempestini; du Sénateur Prof. Alberto Marghieri, président d'honneur de l'Association Italienne de Droit Mari-
time; du Directeur Général de la Marine Marchande, Giulio Ingianni; du Sénateur Loria; du Sénateur Setti; de Ilion. Biancardi, membre du Parlement; de M. le Professeur Manara de la Faculté de Droit de l'Université de Gênes; de M. le Professur Lattes, Président de la Faculté de Droit de l'Université de Gênes.
Son Excellence le Ministre à Rome du Royaume des Serbes, Croates et Slovènes, a envoyé la dép&che suivante:
« Vous remerciant votre communication ai honneur vous informer que Monsieur Stefan Brkits notre ConSU' Général Honoraire à Gên.es est nommé notre délégué ad audiendum Conférence Droit Maritime. Anto-
)) nievich, Ministre Serbe Croate Slovène.
D'autre part, le Gouvernement Italien, a nommé plusieurs observateurs
M. le Professeur Torquato Giannini et M. Tommaso Perassi viennent d'être nommés Observateurs du Commissariat Général de l'Emigration; Le Capitaine de Corvette Umberto Cugia di Sant'Orsola
vient d'être nommé observateur du Ministère de la Marine militaire;
M. le Commandant Francesco Marena, Capitaine du Port de Gênes vient d'être nominé observateur du Ministère des Communications;
et moi-même je viens d'être nommé observateur du Ministère de la Justice.
Enfin j'ai été aussi délégué à la Conférence par la Fé&ration des Gens de Mer. Depuis notre séance de ce matin, les propositions suivantes ont été soumises pour compléter la composition du Bureau de la Conférence. Comme vice-présidents pour l'Allemagne : le Dr. Alfred Sieveking;
Belgique : M. Albert Le Jenne; Danemark : M. Kristian Sindballe; Espagne : M. Lorenzo Benito; Etats-Unis : Hon. Julian V. Mack; France : M. Henri de Grandmaison; Grande-Bretagne : Sir Leslie Scott; Grèce : M. le Consul général A. Joannidis; Pays-Bas : M. B. C. J. Loder; Japon : M. Kurusu; Norvège : M. Edvin Alten; Portugal : M. Barbosa de Magalaes; Suède : M. Algot Bagge; Serbes, Croates et Slovènes: M. le Consul Brkits. Comme Secrétaires-adjoints
MM. l'Avocat Placido Civiletti; le Prof. Edoardo di Tempora; C. S. C. Pilcher; l'Avocat Umberto Sorrentino. (Applaudissements.)
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Nous reprenons la discussion de la question de 1'
Assurance obligatoire des Passagers. Mi sono permèsso di domandare per Mr Russo. primo la parola, io modesto avvocato, non perchè abbia la pretesa di portare un contributo di scienza giuridica tra tanti maestri, ma perchè, vivendo nella pratica quotidiana, ho sentito il bisogno che, al principio dei lavori della Conferenza, fossero sottoposti alcuni quesiti di carattere pratico corrispondenti alle pratiche necessità in cui viviamo, voi Ii osserverete secondo i dettami della scienza giuridica e secondo l'opportunita. Intendo parlare dell'assicurazione obbligatoria dei passeggeri.
Mi è stata comunicata una memoria del Commissariato Generale dell'Emigrazione italiano che io scorsi rapida-
mente e con piacere ho trovato svolte alcune mie idee, ciô che mi ha tolto la preoccupazione che le mie idee fossero troppo particolari, personali dell'ambiente in cui vivo e lavoro. L'assicurazione dei passeggeri certamente sal-A di una grande utilità sociale. Se accadono disgrazie la famiglie
dei passeggeri o meglio i passeggeri stessi che possono sopravvivere, avrlanno subito una indennità da parte dell'ente assicurativo, senza dover questionare se si tratta di colpa, di caso fortuito o di forza maggiore. L'interessante è che possano incassare subito Pindennità. Su questo, abbiamo un grande precedente nella assicurazione obbligatoria-degli operai. I nostri operai appena soccorsi e le nostre leggi stabiliscono un metodo pratico
colpiti da un infortunio sul lavoro, ricevono i primi
per incassare l'assicurazione; cosi 4abiliscono che le indennità vadano principalmente a coloro che vivono a carie° dell'operaio, quelli cioè che immediatamente risentono della disgrazia. Noi abbiamo quindi in Italia un precedente già formato per legge, per dottrina e giurisprudenza. Sarà quindi utilissimo che le persone colpite
o le persone che vivono a loro carico ricevano subito l'indennita dallà societa di assicurazione. II Commissariato si è preoccupato della definizione della parola (( passeggero ». Non abbiamo ancora la legge che già incominciano le preoccupazioni e le distinzioni. Credo che sia necessario troncare da principio la ques-
tione, dicendo che consideriamo come passeggero tutte le persone che sono a bordo di una nave, non solo gli emigranti ma chiunque per una ragione qualunque deve navigare, eccettuato il personale di bordo, che é giá assicurato come gli operai. Si è posto il quesito : Chi deve sottostare all'onere del pagamento del premio di assicurazione ? Alcuni hanno detto : seguiamo il sistema della assicurazione degli operai. Questo è un errore. Nella legislazione
operaia si è partito da questo concetto che un operaio percepisce un compenso, una mercede, per esempio 10, si è voluto che l'industriale che occupa l'operaio, invece di 10 spenda 11, e questa differenza sia il premio di assicurazione che l'industriale deve sopportare. Imponendo il pagamento del premio di assicurazione, si è imposta una maggiore spesa di produzione, per cui la merce costerà di più. Per l'armatore la questione è differente : egli
percepisce che rappresenta in parte un rimborso delle spese e l'altro l'onesto guadagno di ogni armatore, giusto
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guadagno, perchè i noli hanno un mercato e difficilmente si possono imporre noli arbitrari. Se il premio è pagato
dall'armatore, dove si rivale ? Non può fare altro che aumentare il nolo, ed allora non è più l'armatore che paga ma il passeggero che invece di 100 paghera, in ipotesi 110. Posta la questione in questi termini, perchè dobbiamo parlare di un onere che si impone all'armatore ? Possiamo semplificare dicendo che il passeggero oltre al nolo deve pagare il premio di assicurazione, una per-
centuale del nolo, una piccola percentuale in aggiunta al prezzo del nolo costituisce il premio di assicurazione. Siccome i passeggeri sono di diverse classi, ed il valore commerciale di queste persone corrisponde di regola alla classe in cui viaggiano, applicando la percentuale, si arriva alla più semplice espressione. Ogni armatore adunque deve essere obbligato ad assicurare le persone che viaggiano e deve poter esigere un premio di assicurazione, cosi che al momento dell'imbareo possa presentare al passeggero la polizza di assicurazione. Abbiamo nella pratica quotidiana le possibilità per cui l'armatore pm-) essere fornito di questa polizza. Nessun onere adunque per l'armatore, perchè il premio viene pagato dallo stesso passeggero: altrimenti sarebbe un far figurare come onere dell'armatore una spesa che il viaggiatore sopporta di tasca sua. Dobbiamo invece parlare della responsabilità dell'armatore. In questa materia ho idee tratte dalle necessità della pratica quotidiana. Io penso che non c'è diritto se non c'è dovere e non vi sono obblighi se non vi è respon-
sabilita. Obbligo, guando le persone non abbiano responsabilità, è un non senso.
Ho avuto piacere di trovare idee conformi nella memoria del Commissariato Generale italiano dell'emigrazione. To penso che le responsabilità delParmatore e del capitano, che sono stabilite dalle nostre leggi, ed affermate nei precedenti congressi devono restare intatte.
Si è gia fatto un passo avanti guando si è esonerato l'armatore dalle responsabilita nautiche del capitano. La responsabilità dell'armatore è di ordine sociale: è una necessità giuridica : egli percepisce un noto, deve adempiere alle sue obbligazioni. Nella legge degli Stati Uniti del 1913, e la nostra Corte Suprema ha stabilito, rinammissibilità della stipulazione dell'esonero della responsabilità dell'armatore e del capitano e dell'equipaggio. Abbiamo i precedenti congressi che stabiliscono i limiti della responsabilità dell'armatore. A mio modesto modo
di vedere bisogna eliminare dal nostro progetto quel tanto per cui doveva portare all'esonero della responsabilità dell'armatore. La cosa funzionerebbe a questo modo : se un sinistro succede, ed un passeggero è colpito, l'assicuratore paghera immediatamente l'indennità di assieurazione senza discutere se si tratta di casa fortuito, di colpa del capitano o di forza maggiore : i passeggeri devono essere portati fuori di questa discussione. L'assicu-
ratore poi potra rivolgersi contro chi deve rispondere secondo il diritto comune. Concludendo, credo che non si debba imporre il pagamento del premio all'armatore, ma al passeggero : chi spende per esempio 1000 per il viaggio potra sopportare benissimo la lieve percentuali in più, per premio di assi-
curazione, per aver diritto alla indennità in caso di sinistro.
Al tempo stesso non credo che sia il Caso di esonerare
l'armatore dalle responsabilità che sono state stabilite nei precedenti congressi. Il Commissariat° dell'Emigrazione si è preoccupato di questo: Noi dobbiamo soltanto assicurare contro i rischi della navigazione od anche altri rischi? Si è accennato ai danni cui va incontro il passeggero
per essere stato respinto dal porto di destinazione, per malattie, invalidità, accidenti ecc. Se vogliamo assicurare anche i danni che i passeggeri possono soffrire perch& respinti dal porto di destinazione, per malattie, ecc. allarghiamo il compito nostro,-entriamo nel campo delle assicurazioni sociali, che è molt° vasto.
Io ritengo che noi dovremmo parlare soltanto dei rischi della navigaziome.
E stata espressa un'altra idea : creiamo tante casse di Stato perchè prestino questa assicurazione. Io non so a quale dottri,na appartengono i memhri del presente congress°, ma per conto mio sono contrario, per quanto possibile all'intervento dello Stato. Lo. Stato non ha bisog:no di fare Fassicuratore, solo potrà intervenire in questa maeria per controllo, per garanzia. Noi.in Italia, come in Francia, in Inghilterra ed altrove abbiamo delle potenti società di assicurazione che già prestano assicura-
zioni contro gli infortuni, compresi gli infortuni della navigazione. Ed allora lasciamo che l'assicurazione sia fatta da questi enti. In Italia vi è l'Istituto Nazionale delle Assicurazioni. Se facciamo entrare l'idea-di istituire delle easse statali di assicurazione, allarghiamo il nostro tema e lo rendiamo sempre più difficile. Lasciamo che l'assicurazione proceda nel modo ordinario. 22
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Si è anche detto che vi doveva essera una legge per le riassicurazioni. Anche questo è un tema grandioso. Ma è da osservare che guando una società copre una assicurazione trova poi modo di riassicurarsi come meglio crede. Si pm') scrivere di una cassa internazionale, ma guando andiamo alla pratica quotidiana vediamo che non è opportuno allargare il terna. Lasciamo che le assicurazioni siano fatte coi sistemi che già esistono. Circa l'avente diritto all'indennità, in Italia abbiamo
già un criterio, quella del vivere a carico. Io mi sono occupato di assicurazioni degli operai. Ogni volta che disgraziatamente un operaio era colpito, si faceva automaticamente un'amante. Sara la legge comune che stabilisce l'avente diritto.
Io 'ho finito. Non ho avuto la pretesa di portare un contributo di scienza giuridica, tra tanti maestri, e chiudo con una raccomandazione che in materia di successione sia rispettato per quanio è possibile il diritto comune. Per la mia pratica professionale ho constatato che ogni qual volta si deroga dal diritto comune si creano degli abu,si.
Ma di ciò si potra riparlare guando si tratterà del contratto di noleggio circa i privilegi. (Applaudissements.) (Traduction orate par M. FRANCK).
L'avocat Russo, dans un discours fort spirituel et fort pittoresque, a dit ccci en substancc. En principe, il mc parait are favorable a l'institution nouvelle que l'on propose, mais il a signalé quelques inconvénients parmi les propositions qui ont été faites. Il a demandé d'abord si on ne pourrait tont simplement introduire une règle obligeant les passagers a s'assurer chez l'armateur ou aillcurs au moment de la remise du billet de passage.
Ensuite, en ce qui concerne le droit'de recours de ceux qui se prévalent de la police, il y aurait grand intérét de se baser sur le droit commun el
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de ne pas établir, en cette matière, une législation spéciale qui entraine toujours û des injustices. Ellin', il a mis Passemblée en garde contre toute ingérence de l'Etat dans le régime d'assurance. Les grandes eompagnies d'assurances et les armateurs sont capables de gérer eux-mêmes tears affaires et ont d'ailleurs de puissantes ressources. Pour terminer, it nous a aussi mis en garde contre l'idée de faire d'une institution cumule eelle-ci, la base d'une régie d'Etat. Les compagnies d'assurances et les Clubs» sont assez puissants pour couVrir tous les risques qu'il peut y avoir. D'ailleurs, même si l'Etat créait des institutions &assurances, il devrait le faire sur la base de la libre concurrence.
M. LE PR 'ESIDENT.
J'estime de mon devoir de rap-
peler à l'Assemblée que d'après un usage longtemps établi,
les membres ne peuvent parler que pendant un quartd'heure au maximum. Je tiens d'abord a constater que non seulement les détails élaborés avec tant de soin par la Commission de Paris sont soumis à la discussion, mais le principe mème, c.-à-d. la question de savoir s'il y a lieu d'établir une assurance obligatoire des émigrants ou m'ème de tous les passagers ou non. La question M. le Dr ALFRED SIEVEKING.
nous a surpris un peu, et surtout la like et l'insistance avec laquelle elle nous a été présentée. Qu'est-ce qu'on dit? Les armateurs vont être soumis à une nouvelle charge, les gouvernements exigent qu'ils assurent les émigrants contre tout accident quelconque; il faut contrecarrer ce coup, qui est porté contre tous les armateurs au nom de l'humanité
et auquel il nous faut nous souMettre tant bien que mal. Est-ce vrai ? Prenons garde ! La question n'intéresse que les armateurs, ils seront les seuls à souffrir. Si une fois d'un eceur léger quoique bienveillant, vous avez accepté ce fardeau, soyez sfirs que les gouvernements intéressés accepteront de plein gré le eadeau qui leur est offert et ne
lâcheront jamais la proie qui 8'est jetée entre leurs mains. Si settlement d'un seul pouvoir vous nous aviez présenté une loi en force ou méme en préparation ou des travaux préparatoires pour un avant-projet folvint les armateurs à prendre ce fardeau stir leurs épaules, nous aurions pu étudier ces travaux et nous aurions été à méme de considérer les moyens pour y pourvoir. Mais rien de cela !
Et je vous défie de inc montrer une telle loi ou un tel avant-projet ! Peut-étre y a-t-il des possibilités ou méme des probabilités qu'on va quelque part kablir le principe que les émigrants doivent étre assurés. Mais est-ce qu'on nous a dit que ce doivent étre les armateurs qui en portent le fardeau? J'ainaerais voir le gouvernement qui ne soit pas satisfait si un autre gouvernement, dont les armateurs vont transporter des émigrants, lui dit,.c'est moi, le gouvernement, l'Etat, qui en prendra charge, laissez mes ar-
mateurs en repos ! Vous posez tout l'édifice sur une crainte, sur une gupposition, sur une tendance assez vague,
et craintifs, comme il semble que vous étes dans ce cas spécial, vous offrez vos larges épaules aux gouvernements
qui jusqu'ici n'en out rieri dit, n'ont pas souffle mot de leur intention de vous charger de ce fardeau ! Au lieu d'envisager un danger actuel, vous créez le clanger et, peut-kre, l'avez-vous déjà créé. Soyez stars que si vous érigez cet édifice sur cette base fictive, les gouvernements trouveront bien vite une base très solide et vous tiendront fermement dans leur main! La situation des armateurs,
me parait-il, n7est pas si enviable, nulle part dans le monde, .à l'heure actuelle, pour donner des cadeaux et des cadeaux trés riches à qui ne les a pas encore demandés. Je-vous conseille I warn you de ne pas hiter la
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question, mais d'abord de vous laisser presenter et non seulement entrevoir d'une faeon assez nébuleuse l'intention d'un oil de plusieurs gouvernements de faire payer par les armateurs les sommes assez considérables qui
sont nécessaires pour eouvrir les emigrants contre les dangers de mort et de lesions eorporelles. Tant qu'on ne vous montre pas ce danger dans une forme palpable je ne dis pas inéme un peril imminent
nous nous oppo-
sons au principe mème. C'est dans l'intérêt de tous les armateurs du monde et d'une navigation , d'un enmmeree maritime qui n'est pas surcharge de fardeaux qu'il ne pent guère supporter, depend en dernier lieu la pros',erne d'un pays maritime que nous vous prions de vous arrèter et de ne pas vous engager dans une route que vous ne pouvez -plus quitter une fois que vous y ètes. Donnez-nous une base plus solide, des lois ou des avantprojets en existence nous les étudierons, et peut-ètre nous arriverions à la mème conclusion qu'a déjà adoptée la Commission de Paris. Mais sovez en stirs, aussitôt qu'un
danger actuel nous a été présenté sous la forme de travaux préparatoires, nous trouverons les moyens d'éviter ce danger, qui non settlement délivrent les armateurs de ce cauchemar de charges toujours eròissantes, mais qui aussi donnent pleine satisfaction aux gouvernements soueieux du bien-ètre de leurs emigrants. Entre parenthèse seulement: je ne eomprends pas du tout un gouvernement qui prend tenement a cceur le sort des personnes
qui sont ass:ez ingrates pour quitter à toujours leur sol
natal et privent leur patrie de leur activité et de leur affection.
Je vous prie done, Messieurs, de voter .d'abord sur le expliqué. principe mème. Notre point de vue, je vous
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I wonder how shipowners should deal with this draft at the eleventh hour. I think the position of shipowners nowadays is not an enviable one, and yet, what you now do is to put a new burden on their shoulders, though nobody is asking you to do so.
You tell us that there is danger for us in the air. Possibly, gentlemen, it is in the air, but it is not yet an actual, palpable danger. Can you show me any law or any draft of a law now in preparation, or a single word of a responsible man in any parliament, of course tending to
show that really one or another Government is croing to put such additional burden on the shipoNvrters' shoulders ? Therefore, let .us wait, and do not so liberally. give away shipowners' money, as British shipowners seem willing
to do, for some reason or other. Let us wait until real danger arises, and then I am sure you will find means enough to avoid this danger and to afford satisfaction to Governments who are anxious to protect their own emio-rants.
Therefore, I should like the Conference to reconsider the matter and not to take a vote on the question. But if you want a vote, let it be first on the question of principle, and not on the details of the scheme.
M. ALTEN. - Dans un rapport de la Conférence de Go.thembourg, l'Association norvégienne a exprimé l'opi-
nion que la question de l'assurance obligatoire des passagers ne devrait pas être réglée par une convention inter-
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nationale, mais qu'il faudrait laisser ce soin aux législalions sociales des différents pays. La question n'a pas été discutée A nouveau à l'occasion du rapport de la souscommission de Paris, et je vois dans ce fait la preuve que, les membres de notre Association ne prennent pas encore grand intérêt à cette question, et gull n'existe .dans notre pays aucun besoin de réglementation nouvelle en cette
matière. Quant à moi, je regrette de me trouver dans l'obligation de m'opposer au projet préparé par la Commission. Certainement, une pareille convention serail très favorable pour les armateurs et, dans certains cas, pour les passagers aussi, notamment pour les émigrants. Mais je ne puis trouver ni juste, ni équitable envers les passa-
gers que l'on veuille exonérer les armateurs de toute responsabilité pour les personnes à leur service, et placer tous les risques du transport sur les passagers eux-mèmes.
Il importe, pour les passagers, qu'on leur accorde un recours contre la personne coupable, lorsque l'armateur lui-même n'est pas responsable. A mon avis, le système du projet n'est pas davantage en concordance avec la nouvelle convention sur la limitation de la responsabilité des propriétaires de navires. Lorsque cette convention a été élaborée, il a été considéré comme un point essentiel que le maximum de responsabilité en ce qui concerne les créances du chef de mort ou de lésions corporelles, serait augmenté à concurre.nce de E 16 par tonneau de jauge du navire. Comment peut-on réconcilier le nouveau système d'assurance avec cette conception ? Je ne le comprends pas bien. rajoute encore qu'il ne serait pas en concordance avec nos lois d'assurance de traiter en assureur chaque arma-
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teur qui se livre au transport de passagers. L'industrie de l'assurance doit ètre réservée aux Compagnies d'assu-
rances, sous le contrôle des Etats ou des institutions publiques .d'assurances sociales qui ont déjà été instituées dans beaucoup de pays. Puisque je m'oppose it la convention, il est inutile que fentre dans une discussion détaillée.
Je me borne simplement à constater mon point de vue. M. JAcQuEs M.AncnEGAv.
Je parle ici au nom du
Comité des Armateurs de France, mais je suis en méme temps membre de l'Association française qui a apporté ici son adhésion au projet de convention. Si done mon point de vue de représentant du Comité des Armateurs était incompatible avec les résolutions de l'Association Francaise,
je ne serais pas venu à cette tribune. Je ne vous apporte pas une résolution du Comité des Armateurs, la question n'y a pas été soumise A un examen précis, mais j'ai recueilli, auprès des armateurs français les plus autorisés, des expressions d'opinion que je vous demande de pouvoir
traduire iei. Il faut, pour bien comprendre ces impressions, que vous vous rendiez compte de l'état d'esprit des
armateurs français, leur position actuelle à l'égard des responsabilités en matière de dommages corporels. Comme
le disait ce matin le professeur Ripert, les armateurs francais jouissent, à cet égard, (rune situation exception-
nelle. La jurisprudence, d'une manière générale, sous réserve des appréhensions d'avenir, dont il se' faisait l'écho ce matin, reconnait la validité des clauses d'irresponsabilité dans les billets de passage..D'autre part, vous savez que toute la marine marchande traverse, en ce mo.ment, une crise grave. Il est done assez compréhensible
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que les armateurs, qui sont journellement aux prises avec
les difficultés de Texploitation et avec des .problèmes financiers complexes, fassent passer ces préoccupations avant les préoccupations d'avenir que constitue, en somme, rétude de ce projet de convention, et sont, bien naturellement, mis un peu en méfiance par des innovations qui sont de nature a accroitre leurs charges, dans tons les cas a augmenter la complexitc, de leur métier. Sous cette réserve, je puis vous dire que si je ne vous apporte pas une adhésion unanime de rarmement français, je ne serai pas non plus le porte-parole d'une opposition absolue. J'ai l'impression que l'idée de l'assurance obligatoire a gagné un certain nombre de partisans dans l'armement français. Ces idées doivent ètre examinées avec des vues d'avenir, elles mftrissent peu à peu, mais de façon d'autant moins sensible pour les industriels que ceux-ci out des préoccupations immédiates et importantes a considérer. Mais l'impression que j'ai retenue des conversations (pie j'ai eues avec des armateurs français, montre que Fidée a fait dLl progrès et il n'est pas impossible de penser que lorsque l'étude du projet de conven-
tion sera poussé plus à fond, les armateurs français se rangeront du côté de ceux qui font, en sommeom sacrifice
dans l'intérêt général de Funification du droit maritime en acceptant le principe d'ane assurance obligatoire susceptible d'apporter des charges et de nature, en tous cas, compliquer la profession d'armateur qui est (NA très complexe par elle-mème.
Je tiens, en terminant, à vous dire de manière très précise cette fois, que l'armement français repousserait délibéremment tout projet &assurance obligatoire qui ne
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porterait pas sur l'ensemble des passagers. Je ne comprends pas très bien les raisons pour lesquelles on assurerait une catégorie de passagers, et non les autres. Mais, ce que je comprends encore moins, c'est l'idée qui s'est
fait jour dans certains milieux el d'après laquelle les gouvernements garderaient leur liberté de prendre des mesures spéciales à régard de cette catégorie de passagers
que Pon appelle les émigrants. Je ne crois pas qu'il soit antidémocratique ou inéquitable de mettre les émigrants
sur le même pied que les passagers de classe et les hommes d'affaires qui traversent les mers. Ce que je crains, c'est qu'une réserve comme celle à laquelle je viens
de faire allusion mote un germe de mort dans le projet que nous allons examiner. Pour ma part, je tiens a dire qu'en présence d'une réserve laissant aux gouvernements la liberté de prendre des mesures spéciales vis-à-vis des. émigrants, dès maintenant l'armement français retirerait certainement et de manière explicite l'adhésion mitigée qu'il apporte à l'étude du projet de convention. (Verbal translation by Mr SOF111).
Mr Marchegay, speaking on behalf of the Central Committee of French Shipowners, stated that, under the pressure of the special difficulties which the shipping trade has to face at present. French shipow tiers have not liad
occasion to go thoroughly into the merits of the scheme now suggested and which after all is a question of more remote importance than the precent crisis in the sea-trade. Therefore, if he cannot just now express the unanimous adhesion of French shipowners, neither is he going to voice an absolute opposition to the scheme. He thinks that after having examined more thoroughly this draft-treaty,
French shipowners may possibly see their way to promote the general interest of unification of maritime law, by accepting the principle of compulsory insurance.
But he warns us that French shipowners would certainly oppose any such scheme if it were not to apply to all classes of passengers. Still less
does he understand why the option would be left to Governments to provide special measures in favour of that particular class of passengers called « emigrants»; he fears that any such proviso in the scheme would involve its complete failure.
Je demande la permission de vous soumettre quelques considérations à propos de cette importante question de l'assurance des passagers. Je Liens à déclarer clairement que je parle, non pas comme observateur du commissariat, mais uniquement en mon nom et comme membre fondateur de l'Association ItaProf. AMEDEO GIANNINI.
lienne de Droit Maritime. Depuis trèc longtemps, depuis de trop longues années, hélas, je fais partie de cette association et quoique je n'aie pu intervenir aux précédentes conférences du Comité Maritime International, j'ai toujours suivi ses travaux avec beaucoup
d'intérêt. Je puis faire a ce sujet appel au témoignage de noire ancien ami, notre Président, M. Berlingieri, envers lequel j'ai des sentiments de sympathie et d'admiration de vieille date. M. LE P13±.SIDENT.
Ces sentiments sont réciproques.
J'ai suivi, avec une grande attention, les discours prononcés ici, a commencer par le rapport de M. Ripert, dont nous connaissons la comp& tence européenne en cette matière; mais je ne puis partager ses idées a ce sujet. D'après M. Ripert, on s'est demandé si l'on pourrait faire un traitement différent aux passagers et aux émigrants. Je lui répondrai : et pourquoi pas ? N'y a-t-il pas un certain nombre de dispositions dans la loi qui concernent exclusivement les émigrants et non les passagers, non seulement dans les pays Prof. AMEDEO GIANNINI.
- 3i0 qui ont un grand motrvement d'émigration, mais mème ceux qui 'font qu'une .émigration restreinte, ou qui ont cl'autres intérêts, par exemple, la Grande-Bretagne qui, dans son Merchants Shipping Act, édiete des règles spéciales pour les billets des passagers d'entrepont. Je ne parlerai pas de notre législation qui a rnaintes règles et prescriptions s'appliquant uniquement aux émigrants. On pourrait done concevoir facilement une distinction entre deux catégories de passagers : ceux qui ont vraiment besoin de protection, et ceux qui peuvent se protéger euxmèmes. On a également fait observer qu'il est difficile de dormer une définition d'« émigrant ». En effet, cela n'est pas facile; mais il est également vrai que chaque pays pent, dans sa législation, trouver les éléments nécessaires pour définir qui, d'après lui, est un émigrant. 11 y a à ce sujet ,des criteriums divers. Un pays se basera sur la classe,
un autre sur le but du voyage; un autre encore sur la condition sociale du passager; d'autres enfin s'en rapportent aux signes extérieurs, et je rappellerai ici le système de la délivrance des passeports spéciaux pour émigrants adopté par plusieurs Etats. Or, il suffit que l'on puisse établir la qualité d'émigrant au moment du départ. Wine si Faccident se produit dans un pays qui a une législation différente au sujet de l'émigration, il suffit qu'au moment du départ l'individu soit considéré comme émigrant et assujetti à l'assurance. C'est une .question d'importance relative, car on pourrait bien comprendre une assurance pour les passagers et pour les émigrants. Ce n'est .pas là le fond de la question; le nceud est bien dans la .substitution de cette assurance à la respon-
sabilité du droit commun ou, pour mieux dire, du droit
maritime qui est (Ha le plus favorable aux armateurs. Cette assurance agissait en fonetion de la responsabilité normale. Or, je pense que ce serait 111.1 pas d'une hardiesse sans précédent.
Nous avons entendu ce matin quels sont les Etats ayant adhéré a la convention de Bruxelles sur la Responsabilité
des armateurs. Il y a déja la une limitation très importante que vous connaissez inieux que moi, a E 8 et E 15 par tonne, qui .n'a pas passé sans grande résistance dans certains Etats. Néanmoins, on peut considérer que c'est IA une victoire, un triomphe, à enregistrer a l'actif du Comité Maritime International, qui a poussé pour l'adoption de cette solution. Encore n'est-elle pas entrée en vigueur de favn générale. Peut-on croire que demain, on pourra substituer la suggestion actuelle au régime existant, ou mème, essayer d'un trait de plume de dire tout simplement : «Il n'y a plus de responsabilité envers res passagers ? )) En effet. il faut dire les-choses clairement. Que. fera-t-on ? On dentandera aux passagers un paiement sotts forme de prime, et on supprimera la responsabilité de l'armement. Je pense que les gouvernements se trouveront en face de grandes difficultés pour approuver ce système. Je dois rappeler que lorsqu'il s'est agi d'adopter une règle.de ce genre pour la responsabilité des transporteurs terrestres, lorsqu'on a voulu substituer la responsabilité de l'assurance, cette proposition a échoué. Je prévois que les m'émes difficultés se présenteront ici; car.une fois le principe admis a l'égard des passagers, la responsabilité att regard des marchandises devra aussi être supprimée. En effet, si l'on admet que l'on puisse s'assUrer contre les accidents aux personnes et se libérer de toute
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responsabilité, on doit pouvoir se libérer d'autant plus pour les marchandises et, dans ce cas, les chances de succès de la Conférence de Bruxelles sont minimes. M011 avis personnel est que la question est très délicate; qu'elle
devra ètre étudiée encore plus avant, et qu'il y aura lieu de préciser quels sont les accidents dont s'agit. Les accidents aux personnes, survenant en mer, sont très rares. Nous ne pouvons faire de comparaison entre les accidents du travail sur terre et les accidents survenant en mer. Tout .d'abord, il y a un principe différent à la base de, ces deux catégories. Dans le travail sur terre, les ouvriers sont en contact avec des machines qui, le plus souvent, causent des accidents par l'influence de facteurs inconnus, pour lesquels on ne peut assigner le patron. Dès lors, il ne s'agit plus d'une subgtitution, car on a improvisé une responsabilité qui n'existait pas. En mer, les lésions aux personnes représentent presque toujours des accidents a des ouvriers, à des personnes qui glissent, des enfants qui se font du mal, et c'est parmi les classes les plus pauvres que se rencontrent ces accidents. Les statistiques nous le montrent, puisqu'il y a 5(ii (1:accidents entre passagers de classe et 95% d'accidents aux émigrants. Il y a d'ailleurs, certains risques qui ne touchent pas les passagers de classe,
par exemple: le risque du refus de débarquement. Ce risque est assumé par les armateurs qui sont obligés de rapatrier le passager et de payer une amende. Ce sont la des dangers qui n'existent pas pour les passagers de classe. Voila done encore un aspect a considérer. 11 y a, ensuite,
le ri-sque de maladie, important pour les travailleurs et
qui n'existe pour ainsi dire pas pour les passagers de classe.
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Je pense qu'en nous inspirant de cette prudence dont parlait notre Président ce matin, lorsqu'il disait qu'il faut avancer (( step by step », il serait peut-ètre recommandable d'étudier plus avant cet important sujet qui a aussi un caractère de nouveauté, puisqu'il n'existe encore dans aucun droit maritime, comme un autre orateur l'a déjà dit. Cela devrait nous rendre plus méfiants encore et nous engager a ne formuler une convention que lorsque nous serons 4:us qu'elle sera adoptée par les gou. vernements. M. SANDEMAN ALLEN. - Mr President and Gentlemen,
I do not intervene in this discussion officially as a representative of the Association of British Chambers of Combecause that body has, so tar, not had the submerce but I do speak, first of all, as ject under consideration the Chairman of the Liverpool Chamber of Commerce, which is very much interested in these shipping matters; and also, as a Member of Parliament because with every respect to my friend Dr Sieveking, I feel you might wish
to have the view of an ordinary business man who is a shipowner but who is at the same time interested in how these questions will be received in one, at all events,
and not an unimportant one, of the Legislatures of the world.
I have read some of the papers but I cannot keep pace with the speed with which you put fresh papers on the table, though I hope some time during the winter I shall be able to read them all, but I think I have a sufficient idea of what you are submitting to us and I would like to say a few words on the subject.
So far as I appreciate the position, I personally, do
not accept Dr Sieveking"s view that there is no reason for anticipating difficulties which may- never arise because think it is better to be sure than sorry and I feel that it
is not safe to assume there is no danger in front of us. I do not mean The red flag has already- been waved from the Inter'red' in the wrong sense of the word national Labour Bureau ; so that danger has already arisen. They have put forward definite proposals on this subject but if this Committee is considering a scheme, they Nvill probably not proceed further until we have come to a decision.
I quite appreciate the argumen: that this stbeme is not in accord with the old principles of maritime law but if it is a fair and reasonable proposal that is no reason for setting it aside. Moreover, if the matter is left to individual nations, as has already been pointed out at previous meetings, we shall be in a very awkward position when we
attempt to obtain uniformity later on. I cannot help thinking, if the Comité Maritime International is going to
fulfil its functions, it must not only deal with matters after the event, but should also be anticipating what is expected to happen before the event and so provide unity from the start. Now, Sir, the advantages of the Scheme are manifest both for the emigrants and for the passengers as a whole,
they will all gain by this proposal. I do not think the shipowner will suffer although I have no doubt there is a body of men who. may suffer for the time being, but our sympathies are not strong in their case I mean the lawyers. This scheme provides a perfectly simple and straightforward way of dealing with the difficulties.
You have not got to prove negligence, as it is simply the accident which settles the liability; and that is a very great thing. From long experience, like many others here,
I know the fine points that can be spun and the great difficulties there are in contesting claims for negligence. Many a time for an emigrant or other poor passenger it is not worth while struggling for it, whereas this scheme gives all that is necessary, perfectly simply and clearly. I do not see how those who sympathise with emigrants
and other poor people can do anything but feel great satisfaction with the proposal. Again, as an old Insurance man, I know that the more
you spread the risk the better it is and the cheaper is the premium. Therefore, I cannot accept the suggestion as to limiting it to emigrants. I am not sure of the statis-
tics put forward. I know Professor Ripert is a great a.uthority but I ha-ve seen statistics produced at various times for various purposes and I have seen others produced, probably equally reliable, proVing the opposite.
In- any case I very much prefer, as I believe every business man would, to spread the risk and take in the whole of the passengers. If any Government -wants to force a burden on any individual or class,-that is not a point we are discussing here. What we are discussing is the position viewed in an ordinary business way. Somebody suggested to-day that the shipowner would be in rather a favourable position. That may be so or it may not, personally I think it will make little difference to them and I think we should not be party to increasing his burdens but I strongly support any effort to simplify the position for the benefit of all. 23
To sum up, let us prepare in a business-like way for what may come. I strongly support the broad principles of the proposal which has been submitted because I think it is an intelligent anticipation of the course of events meeting the needs of emigrants and others and being a distinct advantage to other passengers' while, as far as the shipowner is concerned, it enables him to know exactly where he is at the moment instead of having to wait a long time to realise what his liabilities are. I hope the Committee will pardon one who is not an expert on this subject, having taken up their time. (Applause.) (Traduction orale par M. Don). M. Sandeman Allen, president de la Chambre de Commerce de Liverpool, membre du Comité de la Federation des Chambres de Coinmerce,
membre du Parlenient anglais pour la eirconscription de Liverpool, a expliqué tout d'abord qu'il ne parlait pas au nom de la Federation des Chambres de Commerce Anglaises, laquelle n'avait pas pris de resolution
ce sujet, mais qu'il exprimait tout Xabord les vues de la Chambre de Commerce de Liverpool, dont il est President. Puisque le Docteur Sieveking avait dit : Qu'on inc montre Foninion des membres responsables » du parlement », M. Sandeman Allen repond qu'il va entendre ropinion d'un metnbre du parlement, rnais sa modestie seule empeché de dire ce que le traducteur pourrait ajouter. ù savoir : est peu de memlires du Parlement anglais qui, en une pareille inatière, puissent parler de façon aussi « responsible». Il nva pa s eu le temps de lire les nornbreux rapports que le bureau du Comité a fait apparaitre sur nos tables avec une rapidité qui tient de la magie. Il eompte. pour lire ce projet, profiter des soir6es pendant lesquelles le chi/tat anglais lui donne le temps de faire cette lecture a son aise. Toutefois. comme il a pu lire déjà les discussions étendues qui ont precede, il a pu se former une idée des propositions qui sont soumises au Comité Maritime International etil refuse nettement d'accep-
ter ravertissement du Docteur Sieveking, suivi de la menace 1Prenez garde». En ces matières, dit-il, il vain mieux prévenir que guérir, quand on a vu déjà agiter le drapeau rouge (non pas dans le setts 'que ron donne en ce moment A cette expression, mais dans le sens d'un danger sur une .
ligne .de chemin de fer); or, les signaux de danger ont apparu, en ce
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sens que tout le monde sait très bien que des mesures législatives matière d'emigration, sont en l'air, et que ce West done pas un peril imaginaire lorsque les amateurs appréhendent de se voir ligoter dans divers pays par une série de mesures législatives, peut-étre très divergentes. Si vous
laissez aux diverse.; nations le soin de regier ceue question comme elles rentendent, vous allez avoir des lois absolument différentes. Il est bien plus facile, semble-t-ii, lorsqu'on a un organisme comme le Comité Maritiine International, qui a pour ríite d'unifier le droit maritime, d'unifier cette legislation avant plutiit que de .runifier après. Vous savez, par experience, combien cela est; difficile lorsqu'il y a des systèmes de lois diffepar exemple : le droit anglo-saxon d'un côté, et rents déjà en vigueur, le systèMe continental de rautre, d'aboutir à unifier des lois en décidant chaeune des parties a abandonner quoi que ce soit de son système. lei, au contraire, nous ZIVOI1S ravantage de pouvoir partir sur un terrain qui est nouveau, contrairement à ce que disait le Doeteur Sieveking, au lieu de devoir prendre des constructions differentes de style et de matériaux divers,
on pourra faire ici un seul edifice et on a ravantage d'avoir une plateforme nette sur laquelle on peut dresser les plans et ériger rédifice sans devoir se preoccuper de ce qui existerait déja. Les 'emigrants et les passagers gagneront les uns et les autres a ce que le système que l'on vous propose devienne une loi internationale. Mais M. Sztndeman Allen ajoute que jamais it n'oserait -se presenter devant SeS collégues de la Chambre Commerce de Liverpool, s'il devait étre partie a un projet qui aurait pour
résultat d'imposer aux armateurs des charges encore plus grandes que celles qui pèsent sur eux aujourd'hui. Les seuls qui pourraient souffrir du nouveau systéme préconisé, ce sont les hommes de loi, les avocats, mais ceux-la sont les moins intéressants (Hilarité).
(S'il it'est pas contraire aux regles de ces conferences qu'un traducteur se permette une parentliése, je dirai à M. Sandernan Allen gull se fait une grande illusion en eroyant que les avocat.s souffriront de la loi. nouvelle. .Chaque fois que les memhres des Parlements, meme du parlement anglais, font des lois, ils donnent aux avocats de la besogne pour vingtcinq ans. (Rires..)
M. Sandeman Allen (lit que voici un système simple, qui a pour but d'édicter des règles claires et nettes, et il vous demande clairement, comme
les orateurs precedents, de raccepter et d'en faire la base de vos discussions. Puis, se souvenant gull a été autrefois directeur d'Une des plUs. grandes compagnies d'assurances maritimes, la LTnion Marine Insurance Company, il ajoute : D'après Mon experience d'assureur maritime, plus; » vous étendez les risques et plus vous mettez vos affaires sur une base » sfire et businesslike». Pourquoi donc limiter le projet aux emigrants? En étendant le risque également à tous les passagers, vous rendez la chose
3i8
beaucoup plus facile au point de vue technique de l'assurance maritime et vous permettez, pour l'ensemble de faire des primes plus basses et de donner à votre conception génerale une base plus large et; par lit uteme, plus solide. Comme conclusion, il donne par conséquent son appui le plus complet au projet qui vous est soumis il pense que ye projet constituera une excellente base pour VOS deliberations.
Mr President, I propose to take very little of your time. I have listened with very great interest to the discussions this afternoon; but I would like in a few words to put before this conference what, I take, is the business question we have to decide. As far back as 1921, the Nations, at a meeting in Geneva, decided that it was necessary that emigrants should be insured; that was four years ago. NoNv, last year, the Nations met again in Rome and they decided the same thing, that. it was necessary- that emigrants should be Sir NORMAN HILL.
insured. Well, that is the position with which we are faced and
I think Professor Ripert was quite right Ny-hen he said that if we were to do anything with a view of getting uniformity, we must speak now-. Many nations are interested
on the question, and they mean to enforce a national system of insurance,
we know that. That being so, what has been done, and what part have the shipowners taken therein ? You may look upon the question from two standpoints.
.You may, from an humanitarian standpoint, say that it is necessary. that every emigrant be insured. Now, the ,shipowner lOoks upon it perhaps in a little different way.
He will not .be .able to carry any emigrant unless that emigránt gets insured. But that insurance is going to cost
31-9
somebody something. Insurance is not coming down from heaven : it has to be paid for. If the State pays for it,
(I suppose that means the taxpayer) the amount for which the emigrant can be guaranteed will be limited by the tax provided for such insurance. Suppose the Governments, as they are rather fond of doing, say: we do not want to assume any responsibility;
but in the interest of humanity, it must be done; and somebody must pay. That is what we know Government generally does say. Well, in the case of the carrying of emigrants, Government will say that shipowners must pay and a bill will be passed accordingly. What money have shipowners to pay ? If you put the liability, corresponding to the insurance, on the shipowners, the cost will
have to he paid out of the passage-money, because it cannot get paid out of the ships. The shipowner wants to keep his capital in his ships; he has to use his capital to equip, to pro-vision and to man his ships. The insurance therefore will have to be paid by the passenger; you can
be perfectly sure about that. You can say that the shipoNvner is to provide an indemnity for which he is personally responsible; but when you get to settle who is to pay for it, it is clear that it shall be the travelling public.
If you put the insurance too high, it will simply stop emigration. If you put it too low, then I suppose you will have to depend upon charity efforts for making up the deficiency for such insurance, and not do it for business reasons.
Now, shipowners are very greatly interested in carrying
emigrants; they are interested in carrying them safely to their destination, in avoiding all accidents, in making
their line popular and in encouraging generally the flow of emigration-traffic, just as in regard to cargo. Well, it occurred to shipowners, when the Governments had once adopted the principle that emigrants must be insured, that it was time for them to come forward with an offer, and that offer is : « If you want your emigrants insured, we will put the whole of our .organisations at your disposal to effect those insurances. We can identify the people who are insured without giving any special or new policy; we can identify them with the passenger ticket. If they have to pay, it will be part of the passage money and not a separate premium. No new offices need be created, no new staffs appointed for collecting premiums. We can do all this for you. »
Now, that is something; but at the other end, when claims have to be collected, there is a great deal more that shipow,ners can do. If the shipowners have assumed the responsibility, then at the end of the voyage or at any intermediate port where the ship may have to put in, in consequence of a disaster, the claims can be enforced by the people insured, under ordinarv maritime law, against
the ship. So you are not only giving the emigrant an insurance, but you are giving him a floating insurance all over the world to honour the claims as they arise and where they arise. That is surely a very .great thing : to give the protection which the governments of the Nations think is needed, a,nd that is what the shipowners can give. Upon what terms are shipowners ready to give it ? It and if they carne is a business proposal, as I said; forward and pretended it was not, you would not trust
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them and you would think they were trying tO get some undue advantage. At the present time, under the general insurance law which is in force in all countries, the extent of the liability of the shipowner towards the passengers is very uncertain and ill-defined. The point, which has been 'raised by Nor-
way, I believe, as to the effect of this proposal on the Limitation of shipowners' liability, may sometimes occur,
but very rarely. It is on the current voyage, the voyage in and out. But there is no one, who has been responsible for watching the working of the big passenger lines, who can quarrel with what I say when I tell you that the extent of the liability of the shipowner is very uncertain. It does not matter what bargain he makes with his passengers; it matters very little what the law of the flag is.
Speaking generally, everybody is very sympathetic towards the passenger who has met with an accident, and
the extent of the shipowners' liability is determined by the sympathy of the people, the Court or the jury, who are considering the case. I can tell you of extraordinary instances in which substantial claims have been made I could bring you the pleadings in Courts in the United States in which it was alleged that a ship is unseaworthy because the decks, in mid-Atlantic, were wet ! (Laughter.)
I know it is perfectly ridiculous. There are accidents of a serious nature; and one has every sympathy with those who sustain them; but it is not a question of negligence or of anybody's fault. Some of these people travelling on board a steamer, have never seen a ship before; they know nothing of life on board and there are risks, which cannot be decided by merely holding somebody legally
352
responsible for something. Such risks must be covered by insurance. NOW the shipowners wisely say :
We will
help the Governments of the world by giving them all facilities they want in regard to the insurance of emigrants, if you Governments will put all the passengers on the same basis ». It is pointed out,
that most nations and it is true, have drawn a distinction between emigrants and other passengers, and it was suggested that such distinction is
easy enough. All I can say to that is that the Labour Bureau have tried and failed; they have spent months and months on the work and they _can find no clear definition, they can draw no line of distinction. It was suggested that each nation should in their ONV/1 law, say who is a emigrant. I suppose such definition would
hold good as long as the ship remains in a port of that particular nation; but directly the Ship is on the high seas, whose definition is to apply ? And when the ship reaches its destination, which definition again will it.be? You will never get a clear definition by saying that each nation will provide one, and so you will never know which passenger is insured and who is not. Our suggestion is : Treat all alike and by doing that we get for the benefit of the emigrants the (c spread of the risks » to which Mr Sandeman Allen referred, which is of the utmost importance. If you take our plan, it is an additional burden put on travel by -sea. It is a different kind of burden, but fOr a defined, for a fixed amount, paid on every accident, with-
out any difficulty for the passenger, who will have to prove neither fault nor negligence against the carrier.
And if you take our plan you spread the cost of that scheme over the whole passenger list.
If the nations really think that, in the interests of the emigrants and their dependents, it is necessary, can they think of any better suggestion, of a more just or more economical scheme? I say they cannot think of any which would give the protection they want an.d causing less difficulty. After all, you know it is a Government's interest to avoid that men whose good health and strength and willingness to work if he can cheaply get to countries where work is waiting, be kept at home and starve, because they cannot get abroad if the cost of getting there is too high. The economical factor is right at the basis of the suggestion which reduces the real cost to a minimum. Then I want to emphasise another point. I know it is quite easy to make fun of our friends the lawyers, I was one myself and I know they are quite open to such jokes, but it is true that the present system is really all wrong. I was for many years the manager of one of the
biggest Protection Clubs in England in which a great number of passenger-carrying ships were insured. I have calculated the amounts that were paid by that Association during the last 20 years in these passenger classes and I must say that I know of no figures to warrant the suggestion that the accidents among the emigrants exceed the accidents among the other passengers. The most extravagant claims I know of, were made by ladies first-class passengers. They are by far the most costly form of passengers to carry; 7--- but this is not the point I wanted to make. Out of the amounts paid in the last twenty years, the clainiants ultimately.got 62 per cent, while 32 per cent
Nvas paid by the Association to the lawyers. The claimants,
out of their 62 per cent, had undoubtedly to pay to their 01,1711 lawyers very .substantial sums so that I do not think
it unreasonable to say that in the end the claimants did not get one half of the amount paid out by the Association.
A very great many of the cases under the present law
they defended successfully and quite properly, and a very great number they lost quite improperly. I will quote you a case in point... Dr Sieveking is amused, I perceive,... I can quote the case of a drunken man who went asleep on a hatch, and waking up staggered along by the electricians for purpose of working the ship and went down another hatch which had been opened. That man Nvas paid 2000 in Australia, it being held that the ship was unseaworthy because the hatch was left open ! All that money was wasted and people are not entitled to bring such claims or to any such sympathy. Many of these claims are frivolous and the law costs are appalling. If we can get this insurance scheme adopted, I believe we will give to the Governments of the world what they want : full proteclion of the emigrants, without increasing the total liabilities of the shipowners. One final word is this. I know that if we fix the compulsory amount, it must be low; otherwise we would stop emigration. It must he in relation to the kind of insurance
which the emigrant himself would effect. It must be moderate. Let all passengers be put on that basis as a matter of right. But what we have suggested is that if any passenger, whether emigrant or first-class passenger, wants to have additional insurance, he can have it; but he will
ihave to pay for it; and we have suggested that such additional insurance should have relation to the compulsory amount, that is to say that it should be up to ten times that compulsory amount. If that is not sufficient, make it up to twenty times that figure.
Let us help the emigrants and the dependents of the emigrants as far as we can; but do not stop emigration, because that would be bad for Europe and bad also for the shipowners; and you can best help them by spreading the risks incident to travel by sea over all the passengers
who are carried, and by using the shipowners as the instruments through which you give that insurance. (Applause.) araduction orale par M. Soitut.
Sir Norman Hill pose le problème pratique que nous avons a résoudre. Dès 1921, les gouvernements réunis à Genève ont exprinté leur avis qu'il est nécessaire d'assurer les émigrants contre les accidents en mer. A Rome l'année dernière, ils ont confirmé et fortifié cet avis. On se trouve done devant le fait que des lois vont ètre imposées, lesquelles seront probable-
ment coinues d'après des types .différents. C'est pourquoi, si Pon vent faire quelque (hose internationalement, il y a lieu de s'occuper maintenant de la question. On pent considérer la question au point de vue humanitaire et dire qu'il faut assurer rémigrant parce qu'il est intéressant; mais il faut aussi examiner le problème du point de vue de rhomme d'affaires. Si Passurance des émigrants fait partie des obligations que doit assumer Parmateur au point de vue économique, ii est certain qu'en fin de comple,
la charge de cette assurance devra étre supportée par celui qui voyage, rémigrant lui-merne. L'Etat peut certes décréter rassurance obligatoire, mais peut-il décréter aussi qui en supportera les frais ? Si l'on impose cette charge it l'armateur, celui-ci devra s'en rembourser au moyen du prix de passage. Or l'assurance coiltera d'autant plus cher que le nombre d'assurés sera réduit, tandis que la prime sera d'autant moindre que l'armateur pourra répartir les risques sur la totalité des passagers transportés..
Les armateurs sont préts à répondre aux désirs des gouvernements et
a- offrir une assurance obligatoire couvrant les emigrants comme tons les autres passagers, et grace à cette assurance générale, Fassurance des emisecond avantage grants pourra se faire au moindre prix et ensuite. les organisations des armateurs feront elles-memes le service important, des assurances. De cette fzKon, il ne sera pas necessaire qu'au point de depart il y ait des organismes spéciaux pour encaisser les primes ou pour établir des polices; le ticket de passage &byre par l'armateur vaudra
Police. Ensuite, a Fautre bout du voyage. ou dans tout autre port intermédiaire oil le navire devra se rendre en cas de desastre, le passager, emigrant ou autre, pourra. sous Vempire du droit commun, se faire payer son indemnité. Les armateurs eux-memes assureront ce service encore une fois sans qu'il faille recourir a des institutions spéciales (Indies et ea/tenses. Parlant du regime actuellement existant, Sir Norman Hill dit qu'il est fautif par la base; qu'en réalité le recours que les victimes traccidents ont est fort précaire; que les chances de réussite sont minimes; que dans tous
les cas, il y a d'énormes frais de justice. Le plus souvent. les passagers sont victimes d'accidents qui ne sont pas dus a une faute ou à une negligence, mais a une cause purement fortuite. Les statistiques démontrent crailleurs que les réclamations émanant d'émigrants ne sont pas plus nombreuses ou plus élevées que celles produites par trautres passagers. Pendant de longues années, Sir Norman Hill a été directeur d'une des plus grandes associations mutuelles d'Angleterre. a,3surant de nombreux steamers se livrantau transport des passagers et des 'emigrants. Il a examine les sommes payees par cette association comme indemnités A des passagers et il es 7t arrive à la constatation que 62 de ces indemnites sont idles aux
passagers. tandis que 32 % ont ete payes aux avocats de l'Association mutuelle. Comme les réclamateurs ont de leur eke da payer un montant considerable en honoraires a leurs avocats, il pent affirmer sans crainte d'exagérer que de toutes les somme payees par cette mutuelle. A peine la moitie est entrée dan,- la poche des victimes d'accidents. Sir Norman Hill termine en disant que la proposition mise en avant par les armateurs consisterait à traiter tons les passagers sur le meme pied, pour le minimum d'indemnité qui devra etre modéré, afin de ne pas enrayer l'émigration, qui constitue une necessité economique pour VEurope comme un avantage pour les armateurs. Si des passagers desirent s'assurer pour une somme supérieure, ils pourront le faire, mais ils devront payer la prime. Ils pourront dans ce cas s'assurer une indemnité dix fois supérieure au minimum prévu pour tout le monde, ou méme vingt fois, s'il le faut.
M. LE PRÉSIDENT.
Je donnerai encore la parole
M. Guidi; après quoi la discussion générale sera cl6turée
et nous aborderons demain la discussion des articles du projet soumis à nos délibérations. M. DARIO GUIDI. - Poche parole da modesto cultore di scienze giuridiche ed economiche. Vorrei prescindere dai dettagli del progetto, Sia perchè
mi dilungherei troppo, sia perch& non credo che oggi dobbiamo occuparci dei dettagli. Noi dobbiamo di fronte ad un progetto che, se adottato,
introdurrebbe nella legislazione di tutto il mondo un principio di una portata sociale ed economica grandissima, direi grandiosa, dobbiamo più che altro preoccuparci, di fronte alle divergenze che questo progetto ha già incontrato nella precedente conferenza, delle possibilità che la. sua sostanza più che il suo dettaglio può incontrare, deve cercare di superare, può superare. In poche parole: quale è la storia di questo progetto ? E la storia di due conferenze.
La conferenza precedente non ebbe a studiare un progetto preciso, e dalle relazioni dei vari Stati apparve una profonda discordanza di idee. La delegazione italiana, presieduta dal nostro maggior naarittimista, presento una proposta che, appogiata da altre autorevoli delegazioni, principalmente da quella americana, suggeriva un sistema di assicurazion.e obbligatoria sugli infortuni estesa agli emigranti, considerando che il viaggio di emigrazione di trasporto dalla propria terra alla terra di lavoro, non è che un momento- dell'attività di lavoro ordinaria necessaria per l'operaio, ed in questo si conformé allo spirito per cui questa idea dell' assicurazione obbligatoria degli emigranti era sorta nella coscienza .della legislazione moderna.
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Viceversa questa proposta trovò in questa seconda Con-
ferenza un contrato fortissimo : abbiamo un progetto che vi si distacca profundamente. E quasi un contrasto fra le due concezioni. La concezione originaria vuole che .siano tutelati gli emigranti dai rischi dei viaggi di mare, oggi il progetto trasforma questa idea, questo progetto di legislazione sociale in un'idea completamente opposta. Non critico l'idea di per sè stessa, ma domando: possiamo dire oggi che il progetto presentato alla Conferenza di Genova realizza l'idea della assicurazione obbligatoria degli emigranti, realizza l'idea di profonda umanita che l'assicurazione obbligatoria degli .operai emigranti ? Non credo che ci sia bisogno di rispondere, perch& tutti mi comprendono. Siamo di fronte ad un progetto di nome ma non di sostanza. Quindi, ritorno a dire, gnardiamo la sostanza, e guardiamo se sia possibile, nell'eventualità che questa con-
ferenza deliberi ed approvi questo progetto, che esso possa essere accolto dai legislatori degli altri Stati, perchè
questo è lo scopo delle riunioni del Comitato; perchè sarebbe inutile che una deliberazione, anche all'unanimità fosse presa, se le possibilita di adozione si dovessero prevedere minime.
Ora, come concepito, questo progretto presenta due soli ma principali ostacoli. Comincerò dal minore : Si è detto da chi esponeva l'idea dell'assicurazione obbligatoria degli emigranti Noi accettiamo questa idea, anzi facciamo di noi armatori, ci creiamo assicuratori, anzi facciamo ancora di più, noi vogliamo che l'obbligo dell'assicurazione, che incomberà _su di noi, sia esteso a tutti i passeggeri.
In una prima impressione può sembrare che si conceda di più. Non dico che si conceda di meno, ma2guardiamo
la proposta con l'occhio del legislatore. Un giorno che un governo dovesse attuare la proposta, essa verrebbe ad imporre sia all'armatore che al passeggero, u.n obbligo che non ha precedenti. Finchè si tratta dell'emigrante, che è un povero essere che ha hisogno di essere guidato nella sua dolorosa strada di lavoro, si può giustificare che lo Stato, divenuto suo tutore, gli dica : questa medicina la devi prendere, perchè ti fará. bene. Ma estesa a tutti i passeggeri,'è conceptibile che lo Stato possa imporre : tu ti devi assicurare contro i rischi dei viaggi di mare ?
Mi fermo all'enunciazione del dubbio che può poi essere sviluppato.
Il secondo ostacolo sta riell'articolo 5 del progetto. L'idea originaria -vuole instaurare mi sistema di protezione del lavoro; oggi con l'articolo" 5, piccolo periodo inscrito nella colpagine del progetto, si viene a dissolverlo.
Quando si dice che contro l'armatore colpevole, purchè non di dolo, ma colpevole dell'infortunio, non sara ammessa alcuna azione, tranne quella per l'indennità di assicurazione, anche se per le vie ordinarie del risarcimento ordinario, secolare, universale, che si unisce all'espressione responsabilità civile, si potesse avere cento volte di più di ciò che oggi stabilisce la tariffa; guando .si sovvertono in tal modo gli scopi dell'istituto, se ne fa, scusatemi, non un istituto di tutela degli emigranti, ma un isti-
tuto di tutela degli armatori.
Con questo non intendo dire che il desiderio degli
311)
armatori di ridurre l'onere che costituisce la responsabilità ordinaria non sia legittimo e più che legittimo l'onere che incombe sugli armatori è assolutamente insopportabile ed anche il sistema delle clausole di esonero non è sufficiente, perchè non da la sicurezza di questi esoneri. La giurisprudenza italiana spesso riconosce invalide quelle clausole che ormai sono oltre che stampate, perpetuate da deeenni nene altre nazioni. Ma che per raggiungere questa finalità d'ordine economico ed- industriale, si trasformi, si rovini un istituto cosi squisitamente sociale, non mi pare giusto. Non dobbiamo dimenticare che oggi ci sono delle associazioni operaie intelligentissime, organizzatissime, che hanno, prima ancora del Comitato Marittimo, preso a cuore questo progetto : esse vi sono naturalmente contrarie. Il memoriale del 1-lastro Commissariato Generale per l'Emigrazione chiede fra l'abro che sia modificato l'articolo 5, nel senso che il pagamento delrindennita d'assicurazione non significhi esonero dalla responsabilità dell'armatore. Possiamo quindi sperare che cosi come è oggi compilato questo progetto possa avere un esito soddisfacente? lo ho i miei dubbi. D'altra parte il dovere della mia coscienza di studioso, di giurista, che è perciò imparziale,
mi spinge a confermare quello che fu il parere della delegazione italiana fino dal primo momento. (Verbal translation by Mr TIEPOLO)
Prof. D. Guidi spoke from his heart. He said that with this convention on compulsory insurance, we would realise the great principle which was at the basis of the first project submitted by Prof. Berlingieri.
In the preceding conference there was no draft-convention prepared, but there were several reports on this question. To-day there is a drafttreaty to discuss. In Prof. Berlingieri's conception, this convention should llave bee,' an extension of the mariners compensation act. Prof. Berlingieri's suggestion was inspired by a deep sense of humanity. N-ow all this is changed; the draft-treaty is not based on humanitarian principles, but its basis is quite different and therefore the two schemes clash with each other.
There are two obstacles to the proposed s.cheme. The shipowners are willing to accept compulsory insurance, hut they want to be themselves the insurers. Then they want tisis insurance extended not only to emigrants, but also, to all classes of passengers. Assuming that we should approve the scheme as it is now brought forward; will governments accept it and will they be prepared to embody it in their national. law? That is at least doubt-
ful, because the government has a moral obligation to protect its ONVI/ citizens. The humanitarian principle which was at the basis of Prof. Berlingieri's scheme, has disappeared altogether from the suggestion now laid before the conference. Referring to art. 5, Mr Guidi pointed out that it provides some kind of protection for the shipowner. If we keep this article as it stands, we will protect the interests of the shipowner rather than those of the emigrant, who yet- is the party to be protected since he is going from Italy to America, or from Greece to other places, because he is poor and has neither the means nor the power to protect himself. Art. 5 would defeat the scope of the convention.
Je propose de terminer ici nos travaux pour aujourd'hui. (Assentiment.) M. LE PIdSIDENT.
La séance est levée Cc 5 heures 50 minutes.
The Conference adjourned at 5.50 p. m.
24
MARDI, 29 SEPTEMBRE 1925. THUESDAY, 29th SEPTEMBER 1925.
SEANCE DU MATIN. MORNING SESSION.
La séance est ouverte à 10 heures sous la présidence de Mr le Professeur FRANCESCO BERLINGIERI.
The Conference resum,ed its labours at 10 a. m. Prof. BERLINGIERI in, the chair.
M. LE PRÉSIDENT. - Avant de reprendre nos travaux, je tiens à communiquer à l'assemblée que M. le Professeur
Vivante vient de m'envoyer une dépèche par laquelle excuse son absence. Nous reprenons la discussion de la question de l'Assuranee Obligatoire des Passagers.
Je donne la parole à M. René Verneaux, secrétaire de l'Association Française du Droit Maritime.
Au point où est arrivée la discussion mes remarques seront brèves. Vous avez pu vous rendre compte par les observations qui ont été M. R. VERNEAUX (Paris).
présentées hier que le projet qui vous est soumis n'est pas sans comporter des réserves et des hésitations. Si l'assem-
blée tient néanmoins à adopter un système d'assurance obligatoire, j'estime qu'il serait désirable d'élargir le pro-
363
jet qui nous est proposé. Sir Norman Hill a signalé avec raison la déperdition considérable résultant des procédures longues et compliquées qui sont motivées par un sinistre ayant entrainé des pertes de vies humaines ou des lésions corporelles. Or, le système proposé ne fait pas dispáraitre cette fâcheuse conséquence, puisque le paiement des indemnités forfaitaires envisagées laisse place au recours des tiers. On peut toujours redouter les procédures longues et compliquées et le résultat désiré n'est pas obtenu. Dès lors, un système préférable consisterait dans une assurance élargie qui mettrait l'armateur à l'ahri, non seulement des actiomi des passagers qu'id transporte, mais encore des recours des tiers. Je recommande cette assurance élargie, si le principe de l'assurance est adopté. (Verba/ trandation by Mr Slum). M. Verneaux said that, in the opinion of the French shipowners certain reservations might be made; however, the scheme might be viewed with sympathy if it could be enlarged. He considers that Sir Norman Hill quite rightly drew attention to the waste of money in judicial costs and lawyers fees; but even under the new scheme, such costs would still subsist, and he therefore suggests that some means should be devised to remedy this waste of money, in such a way that, under the scheme, the shipowner would
be covered not only in respect of claims by the passet;gers carried, but also in respect of actions by third parties.
Mr DE FOREST-LORD. -- Mr PreSidellt, I WiSh tO say
primarily that it is rather unfortunate that the United States should be represented each time by different representatives. Consequently I tried all yesterday to absorb as much of the atmosphere of this conference as possible. Before coming here, I also had ,several talks with representatives who acted for the United States in the past.
With regard to the question of Compulsory insurance, it is perhaps the novelty of treatment of this subject which does not appeal to the American Maritime Law Associa-
tion. As you probably know, in the United States, the clauses on the contract tickets have been interpreted rather severely against the steamship companies. For example, steamshipowners are not permitted to exempt themselves from the consequences of negligence, either with regard to the navigation or to other matters. At all events, the attitude of the Maritime Law Association of the United-States has been unfavourable towards this convention. Perhaps one of the principal reasons is that the draft-convention does not provide for a distinction as to the amount of recovery depending upon the earning
power of the passenger or upon his position. I believe an attempt has been made to remedy this by permitting the passenger to insure an additional amount.
-
I think that this is one of the principal stumbling blocks to our accession to this convention. The attitude of our legislative bodies, both federal and national, seems to be at the present time away from the direction of limiting the responsibility of shipping companies, and in the direction of favouring the passengers. Therefore, I do not believe that this convention would pass our federal legislative bodies. The attitude of the U. S. Association has been expressed in a resolution which is incorporated in one of the preliminary reports, and I should like to read to the conference ,one clause of that resolution
» Whereas, it became clear from the discussion at the
said meeting that the plan for compulsory insurance » involved limiting the compensation recoverable by an injured passenger, or by the estate of a passenger who had lost his life, to a comparatively small sum, which would be only a small fraction of the amount which might be recovered under the present American law; and
Whereas, it is the opinion of this Association that any such limitation of the liability of shipowners, in respect of the safety of passengers travelling on their vessels, is contrary to the traditional attitude of the Go-vernments of the United States and of the several states of the Union, on this subject; » Now, therefore, it is resolved that while this Association recognizes that certain advantages might accrue from a uniform scheme of insurance, by which passengers would receive, without the expense of litigation, at least a moderate compensation, irrespective of the shipowner's ,negligence or liability, nevertheless, this
Association does not favour the plan put forward at Gothenburg, or any similar plan by which the existing
rights of passengers traveling by sea would be surrendered or limited. n I do not think we want to be arbitrary about the matter; I quite think, judging by the atmosphere of this meeting, that this is the last thing that should be done. I therefore venture to suggest that the scheme should lie on the table
until, by an enlargement of the proposed amount or by some Such change, a further draft-convention may be submitted.
3flli
(Traduction m-ale par M. Don.).
M. de Forest-Lord regrette tout d'abord que les Etats-Unis soient tonjours représentés à ces conferences internationales par des delegués (Rife-
rents qui, par consequent, iie peuvent pas avoir de continuite lorsqu'ils assistent a ces conferences. C'est pour cette raison qu'il n'a pas pris la parole hier, voulant d'abord prendre le temps, d'après son expression « d'absorber l'atmosphère de la Conference », et de se rewire compte de ce qu'étaient les vues des uns et des attires. 11 (lit ensuite, que c'est sans doute la nouveauté de cette proposition qui ne plait pas aux juristes américains et A FAssociation américaine de Droit Mar ¡time. Aux Etats Unis, les clauses d'exoneration des billets de passage sont interprétées très strictement contre Farmateur. L'attitude de l'Association américaine de Droit Maritime est nettement défavorable au projet de convention qui vous est présenté; il pense que la raison principale de cette attitude est que le projet de convention ne fait pas (le distinction au sujet de l'indemnité a dormer au passager, suivant la capacite de gain du passager, suivant sa position sociale. L'attitude du corps législatif des Etats-linis est, en ce moment-ci, contre toute limitation ou tout amoindrissement de responsabilité des armateurs et, au contraire, nettement en faveur de la protection des passagers. 11 pense, par consequent, que si merne l'Association
américaine de Droit Maritime avait donne son approbation A ce projet de
convention, il serait impossible de faire passer cette convention par le Congrès américain et par le Sénat pour la transformer en loi américaine. Fmk ces raisons, il conclut que ses collègues et lui sont complètement opposes au projet en discussion. En terminant, ii donne lecture de ja resolution de l'Association du Droit Maritime des Etats-Unis, inséree aux Rapports preliininaires, en ajoutant qu'il y a lieu de tenir la question co suspens jusqu'a ce que par une augmentation de la SO/11117C assurée ou une
autre modification de ce genre, on puisse nous oumettre un nouveau projet.
Mr EINAR POULSSON. I ask permission to say a few words in answer to the anxiety which shipowners expressed, and which I think has been rather exaggerated if, on the merits of the case, it is not entirely unjustified. It has occurred to me that some further efforts should be made
to clear up the matter and straighten out what are the risks actually involved. For this purpose, I will ask the conference to consider what are the responsibilities of the
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shipowners under the present system and under the new scheme respectively. To cut a long story short, I may say that under the present law the shipowners run risks and
undertake responsibilities for more or less unlimited amounts in all such cases of loss of life or personal injury where accidents are brought about by negligence or fault of the ship. Now, what the shipowners are entitled to do under the new scheme is to undertake such risks for very moderate sums, for limited amounts in all cases whatever, without regard to the cause of the accident. Now, even though the methods and ways of transacting
this part of the shipowners' business are new to some extent, under the draft-convention, the responsibilities and risks are as here outlined and I therefore believe that the convention would relieve shipowners not only from the risk of unforeseen heavy claims, but also from unnecessary trouble and unnecessary costs in connection with unwarranted law suits on these passenger claims. And I would not be surprised, judging from my experience as an insurance-man, if the convention would
prove, when put into life, to be far preferable for the Owners, even from a purely economical standpoint. I shall not touch the question of how far and with what chances this conference may make the various govern-
ments to agree to the scheme, because I think that is not so much a question for consideration at this meeting. But whatever these chances are, I think that even from
an economical point of view, the scheme is more advantageous to shipowners as compared with what their responsibilities and the cost thereof, are at present. When sayiN this, I am speaking only as a personal mem-
368
ber of the International IVIaritime Committee, nobody expecting us to bind either of the shipowning organizations with which we may be associated. (Traci:idiot: orate par M. Dolt).
M. Poulsson, représentant de la Norv'ege indique qu'il va examiner brièrement quelle est la situation actuelle, et ce qu'elle sera si on accepte la convention. Il examine cela du point de vue du navire, qui est le point de vue des armateurs. D'après le nouveau projet de convention, les armsteurs seront exonérés, non-seulement de leur responsabilité pour des
risques considérables et qu'ils peuvent ne pas prevoir, mais ils seront exonérés aussi du coilt très elevé des frais judiciaires gulls ont A encourir pour resister aux réclamations, souvent sans fomlement, qui leur sont adressées de tons côtés. La difference entre la nouvelie convention et le système maintenant en vigueur, c'est qu'actuellement l'armateur n'est responsable, en cas d'accident, que s'il y a negligence de sa part. Tandis qu'avec /a convention, il sera responsable. dan tons les cas, qu'il y ait negligence ou qu'il n'y ait pas negligence. Mais étant donne que l'armateur sera ainsi décharge une fois pour toutes de cette responsabilité qui, dans certains cas, pent étre considerable du chef de negligence, et surtout gull sera &chargé de tons les frais accessoires qui pesent lourdement sur lui, M. Poul.sson estime que la convention est plus favorable à Parmateur que la loi actuelle, méme au point de vue purement économique. Il est en faveur du principe de c.ette convention. Il ne considère pas la question de savoir s'il y a des chances de faire accepter la convention par les différents gouvernements, et se place uniquement au point de vue pratique qui est le sien, étant president d'une grande association mutuelle de protection et d'indemnite de Norvège, ayant par consequent la pratique de ces questions. Il pense que le principe de la convention parait tlevoir etre adopte. Il ajoute. enfin. parle en son nom personnel et non pas au nom d'aticune association d'armateurs.
Par consequent, ce gull dit ne pent avoir pour résultat de lier l'attitude d'associations d'armateurs.
Mr President and gentlemen, I am asked by the Swedish shipowners, who are principally Mr E. LANGE.
engaged in the Swedish-American line and in the Swedish Lloyd to support the report of the Swedish Association of Maritime Law. The Swedish shipowners do not consider
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that such insurance is necessary, neither do they think it would entail great benefits for them. Personally,. I will
admit that if a convention could be arrived at on the lines so splendidly explained by Sir Norman Hill, I am, as an underwriter, much in favour of the scheme, but when reading the American report, and after having heard from the American delegate ¡CIA 110W, that the U.S. are not
in favour of the plan, then I think it useless to discuss the
question further. There is no country in the world to which maritime trade is extending more than to America. If therefore, the U. S. are not willing to try and submit to the scheme, then it is useless from the Swedish point of view, to consider the draft-convention. (Traduction orale par M. Sofia).
M. Lange explique son point de vue d'assureur. Il a lu avec intérét le projet de convention de Sir Norman Hill. Se plaçant au point de vue suedois, il a été cependant très impressionné par les déclarations du délégué américain. Comme le principal trafic des lignes de navigation de la Suede, a lieu vers les Etats.Unis, s'il y a une opposition absolue de la part de l'Amériquc au système d'assurance et. si cette opposition entrainait la non-r6ussite de re projet, celui-ci ne présente guère d'intérêt au point de vue scanilinave.
Je voudrais vous exposer les vues de l'Association Beige de Droit Maritime et, en ce faisant, je puis vous dire que, dans une large mesure, ces vues cadrent avec celles de l'Union des Armateurs Belges. Le 'Mint de &part en Belgique a été qu'en somm.e un système d'assurance obligatoire ne présenterait de l'intér'ét 'que pour les émigrants et, à l'origine, un système général d'assuranee 1.1'a pas rallié beaucoup de sympathies. Mais dans ces deux dernièr,es années, il s'est produit un reviM. F. SOHR.
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rement d'opinion et c'est précisément cela qu'il est intéressant .de signaler, car les motifs qui ont provoqué ce revirement seront probablement de ceux qui, peu à peu, donneront plus d'autorité et plus de poids au projet de convention.
A l'Association Belge, nous avons d'abord été frapp.és
du fait que, sous rempire du projet de convention, qui représente dans les grandes lignes le projet de Sir Norman
Hill, la situation des émigrants sera incontestablemenmeilleure qu'elle ne l'est actuellement. Elle sera meilleure,
parce qu'actuellement rémigrant n'est pas en mesure de faire valoir ses droits; que les montants des réclamations sont nécessairement peu importants et que, dans les cas les plus graves, à savoir en cas de catastrophe, le nombre des réclamateurs est tel que ce qui revient à chacun d'eux est infiniment petit et négligeable. Nous nous sommes faits cette réflexion que le nouveau système est done très favorable aux émigrants, et si finsiste sur ce point, c'est qu'il
une semble qu'à la reunion d'hier après-midi, plusieurs discours ont pu produire une espèce d'illusion d'optique. A un moment donné, on avait rimpression que ron voulait créer un système au détriment des émigrants. Or, il n'en est rien. Comparativement à rétat actuel de la loi et de la .jurisprudence, la proposition nouvelle est plus favorable aux émigrants que ce qui existe actuellement. Nous sommes alors allés plus loin, et nous avons dit Si le système est plus favorable aux émigrants 'et s'ils obtiendront dorénavant plus qu'ils n'ont actuellement, ne serait-il pas bon de généraliser le système ?
Nous avons alors examiné la situation des passagers .de première et de deuxième classe; ici, le terrain est,
d'ailleurs, commun. Nous avons 616 frappés de voir que, sauf les cas isolés et individuels d'un passager riche
qui est victime d'un accident à bord d'un des grands transatlantiques, mème pour les passagers de première et de deuxième classe, le système général de responsabilité légale est aussi plus favorable que la situation existante. En effet, dans le système actuel, et abstraction faite du cas peu intéressant d'un passager millionnaire ayant un accident lui permettant de réelamer de très importants dommages, le passager de première classe est, comae tous les autres passagers, un créancier d'une masse à partager, qui, actuellement, est souvent minime, qui mème, sous le régime continental actuel, ne représente parfois rien du tout. Je sais que, sous le régime de la convention sur la
limitation de la responsabilité des propriétaires de navires, il est prévu pour cette catégorie de dommages une masse de E 8 à la tonne. Mais, si le navire en faute coule, il n'y a rien.
Sous le régime américain, lorsque le navire en faute est coulé, il n'y a que le fret et, sous le système anglais, il y a un fonds de E 7 à la tonne réservé aux passagers et ceux-ei partieipent avec la cargaison à la masse de E 8. Dans des catastrophes célèbres eomme celle du Titanic
et du Empress of Ireland. on est étonné de voir quelles sommes minimes ont été payées. Pourquoi ? Parce que plus grand est le nombre des réclamateurs et plus petit sera le dividende. Ceci done est le deuxième point : Le système est également favorable aux passagers de première et de deuxième classe.
Ce que j'en dis dissipe déjà l'illusion dont je parlais tout à l'heure. MM. Giannini et Alten avaient signalé que
le projet actuel semblait ne pas se concilier avec le projet qui détermine la responsabilité des propriétaires de navires, puisque la convention de Bruxelles ne prévoit qu'un fonds de 5: 8. Il n'en est rien. Ce fonds de E 8 n'est qu'une limite, mais il ne donne aucune idée de' ce que les passagers, lorsqu'ils sont 1200 réclamateurs, obtiendront. II ne s'agit pas de faire une comparaison avec la situation faite aux personnes transportées par chemin de fer, parce que là il n'y a aucune limitation de responsabilité, tandis que
d'autre part, il y aura toujours une limitation de responsabilité maritime. E est par conséquent radicalement
inexact de dire qu'il y await quelque chose de contradictoire entre le projet en discussion et la convention de Bruxelles. En fait, nous étions sympathiques au projet parce que, potir tous les passagers quels qu'ils soient, est plus favorable que la situation existante. Puis, revenant de façon plus précise sur la position des armateurs, juridiquement et techniquement, il faut que pareil système soit général. Il est facile de vous rendre eompte que si chine part, vous appliquez un système de responsabill*. légale et, d'autre part, le droit commun, vous arrivez a un cumul de limites qui dest pas concevable. Comment vous y prendrez-vous pour appliquer le système d'assuranee aux émigrants et de droit commun aux autres passagers ? Les armateurs diront, et à bon droit : Pourquoi provoquer une situation plus onéreuse encore qu'elle n'est actuellement. Un motif pour que le système soit général, e'est le motif puissant invoqué par Sir Norman Hill : Si le système est généralisé, le cofit de la prime d'assurance sera beaucoup moindre pour les passagers. Toujours, l'émigrant payera son prix de passage. Personne au monde
n'a jamais pensé que l'intention était de créer une institution de bienfaisance pour lui; il payera, en outre, la prime d'assurance. Du reste, si l'émigrant voyage, c'est pour améliorer sa situation, il fait une spéculation humaine très utile. En ce qui concerne particulièrement l'Union des Armateurs Beiges, elle se reneontre avec une partie des armateurs franc.ais et approuve les considérations de Sir Norman Hill. L'état actuel de la législation et de la jurisprudence est inquiétant, à cause de son incertitude. On convient de clauses qu'ou insère dans les billets de passage, cc qui, au point de vue de la loi et de la jurisprudence du pays d'origine, est parfaitement valable. Mais d'autres pays n'admettent pas ces clauses d'exonération, et l'armateur se trouve done (levant le danger d'avoir organisé une ligne, d'avoir entrepris des transports et de se
voir enlever la base mème sur laquelle il avait compté pour fixer son prix de review. Wine dans les pays oft Pon admet les clause.s d'exonération, on fera une distinction. -
Une autre considération importante, c'est qu'aueune clause ou aueune ioi ne tient devant une catastrophe. Lorsqu'une catastrophe est immense, on conteste tout, et on tâche d'obtenir quelque chose, parce que les victimes sont intéressantes, tIn système de responsabilité légale, fixant d'avance ce que l'on payera, et ce que Pon payera dans tous les cas, même lorsqu'il y a cas fortuit ou force majeure, supprimera cette incertitude.
Pour conclure, je vous dirai qu'en résumé l'attitude de l'Association Beige est la suivante : Elle se rend compte
que les armateurs pourraient équitablement, sans étre l'objet d'aucune critique, dire : Nous vous offrons qUel-
que chose en remplacement de notre situation actuelle, pue éq-uivalence. En disant équivalence, je (lis une chose qui va &cider du sort du projet. Nous devons, à un moment donné, examiner la statistique des chiffres, et avant qu'aueun chiffre ne soit fixé au point de vue du maximum
assurer à chaque passager, on devrait dans une com-
mission qui interviendra plus tard, voir quelle est la moyenne des réclamations du chef de pertes de vies humaines et de lésions corporelles. Lorsque Pon aura cela, si les armateurs donnent un équivalent, ils auront, tout en donnant satisfaction à tons leurs passagers, y compris les émigrants,. (qui sont des passagers comme les autres),
dimihué les frais judiciaires; ils n'auront pas diminué leurs obligations et ils auront rendu la base de leur responsabilité plus certaine. Mr SINDBALLE. - Mr President and Gentlemen, as far as I can see, there is something very sound at the bottom
of the proposed scheme, but, as is to be gathered from our discussion, difficulties are sure to arise. They have arisen already, and if you are going to introduce bills in accordance with the draft-treaty before the parliaments of the various countries, I have a very strong feeling that socialists will interfere and that strong opposition will a.rise. The question is whether it will be possible to do away with such difficulties and, Mr Chairman, it is in this regard that I beg to make a suggestion. The proposed
scheme is an insurance scheme : Now, an insurance means an average. Well, I do not think the difficulties arising from our introducing the average system would be insuperable. As far as I can see, the introduction
of the average will be very much inconsistent with the tendency of modern legislation. The difficulty, in my opinion, is that it is proposed to introduce the same average in all countries. Now, it is clear that the economical position of the average emigrant is widely
different in the various countries. What would be a fair compensation to an emigrant of one country, would
not be felt to be fair to emigrants of another country. The question I want to put to this conference is Could you not leave to the national laws, to a certain extent, freedom in fixing the amounts? In explaining my idea, I will refer to the provision in the draft of the Paris Committee. It is provided that each shipowner shall be bound, at the request of each individual passenger, to issue to him a policy for an amount exceeding the amount of the schedule A. In order to make it practicable, it must
be a multiple. It is also suggested in the report of the Paris Commission that it would be either 2, or 3, or 4 times the amount of the schedule, up to 10 times. I venture to suggest that there ought to be added a provision to the
effect that, at the request of the passenger, each shipowner shall be bound to issue policies for a larger amount,
and that the shipowner shall be bound to do the same at the request of the lai,v of the State to which the passenger belongs.
Would this he practicable? I think it would, in so far as the shipowner before issuing a ticket, knows the natio-
nality of the passenger. If he knows that Danish law provides that the amount ought to be twice as big, he will then issue his policy for that amount in accordance with that law, and he will have to charge the pas-
376
senger accordingly, Now, I am aware that, when a shipowner is conveying a passenger across the Channel, he cannot know, before issuing the ticket, what is his nationality, but the oversea-lines alwaYs know it. Such addition as I suggest would be added to the Paris draft, or perhaps
without any limitation. Sir Norman Hill suggested in a private conversation, that every State could have the right to demand from each passenger before issuing his ticket
that he should prove to have insured himself for the amount provided by the national law. In some way, this would be possible, and it would do away with some of the difficulties when introducing the convention in the different parliaments. As far as I can understand, I think it would do away with the main objection of the American delegate to the draft-convention. Sir NORMAN HILL.
One question. Is the suggestion
that the State of the passenger would have the right to exercise the option of the Paris draft, that is to say that if the option is exercised, to insure for more than the minimum amount fixed, the passenger in whose favour it is done would pay for the additional insurance. Is that the meaning of Mr Sindballe ? Mr SINDBALLE.
Of course, that is my opinion on it.
(Traduction orale par M. SOHR )
M. Sindballe est en faveur du projet, mais il signale, cependant, que des difficultés pourraient surgir lorsqu'il s'agira de faire passer le projet devant les divers parlements. La législation sociale, à plusieurs reprises, a eu Poccasion d'examiner les échelles d'indemnités. A notre point de vue, cette question de chiffres présente des difficultés, parce que les conditious sociales et économiques du pays d'origine du passager varient parfois infiniment avec les conditions dans d'autres pays et le mininnun fixé pour.
377
rait done etre ou bien trop, ou troj) peu, d'après le pays d'origine du passager. Il se demande des lors si roil ne pourrait dans le cadre de ravant-projet de Paris, laisser à la legislation nationale, la faculté d'exiger une assurance pour un ou plusieurs multiples du minimum prévu. A la
demande de Sir Norman Hill, M. Sindballe a dit que le cofit de cette assurance est de toute favon à supporter par le bénéficiaire. Mr DE FOREST-LORD. I do not know whether I made myself quite clear. I do not want to take up an arbitrary position, and feel that the matter should be further considered. There may be some way of rearranging the convention so that it be acceptable to everybody. But I think the main objection from the Maritime Law Association of the U. S. was the restricted amount which, it was proposed, should be paid to the passenger and should exempt the shipowner from all further liability. (Traduction orale par M. Scum).
Manifesteinent, à la suite de la discussion qui vient d'avoir lieu; M. de Forest-Lord complete sa pensée. La principale objection de l'Association Ainéricaine était la crainte de voir fixer un maximum trop petit a payer aux passagers. Il estime que la question mérite un nouvel examen, et i.e résultat de ce nouvel examen pourrait etre plus favorable si, au moyen d'une échelle d'inderanité plus élevée, on faisait disparaitre robjection.
M. B. C. J. LODER.
Je voulais simplement faire une courte observation. J'ai suivi avec beaucoup d'intérét les
remarques importantes que divers membres de notre Comité Maritime ont produites. Il se peut que j'aie tort, mais
l'impression que, généralement parlant, on n'est
pas très favorable au projet présenté. POur .ce qui me concerne, je lie le suis pas non plus. Cela importe peu pour le moment, mais je voudrais demander à M. le Président quelle est son intention. Maintenant que la discussion générale semble terminée, avez-vous l'intention
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de rnettre au vote le principe du projet, ou voulez-vous commencer maintenant la discussion des articles. Si vous vous décidez à la discussion des articles, je demande la permission de faire observer que, depuis que le Comité Maritime International existe, la méthode suivie a toujours été que la discussion des articles méme ne constitue-
rait qu'une première lecture et que, une fois cette discussion terminée, méme si elle est en général favorable au projet proposé, on renvoie le tout à la commission avec mission de remettre le projet sur le métier en tenant compte des vues échangées. Je crois que c'est Boileau qui a dit que, pour faire de la bonne besogne, il faut vingt fois sur le métier, remettre son ouvrage. » Vingt fois est
peut-étre un peu exagéré, mais aujourd'hui que nous discutons la chose pour la première fois, il serait cependant dangereux de vouloir prendre une décision. II est préférable, qu'après avoir terminé la discussion des différents articles, on renvoie tout le projet a la commission. Je voudrais vous demander la permission dans ce cas, de renvoyer également à la commission le mémoire très important que j'ai rew hier soir de l'Association Néerlandaise des Armateurs, pour qu'elle puisse en prendre connaissance. Moi-méme, je n'ai pas encore eu la possibilité de lire entièrement ce mémoire, mais je pense bien, première vue, qu'il est très important et si l'on voulait suivre la voie que je suggère, je pourrais produire ce rapport à la commission.
M. LOUIS FRANGK. - I may perhaps reply at once to the question put by Dr Loder. He is quite right in stating that we have always, when a subject of importance was
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submitted to the conference of this Committee, considered it as a first reading, and that no final votes have ever been
taken on a general draft as a whole, before' practical unanimity was secured among the vario-us national associations and 'committees represented here. Certainly, as far as the opinion of the Permanent Bureau goes, I think we must in this instance conform to that method, seeing that we have no legislative power in conferences of this kind, and it is only 011 the strength of the voices which, from the various quarters, favourably reply to our proposals, that authority is carried by our decisions. I may add that, to my mind, there will be no time lost in taking
this course. I suggest that we should read the draft, article by article, as a first reading at this conference; that any amendments should then be referred to the Committee. However, I venture to suggest that in addition
to that, the Committee ought then to report also on the figures of compensation which will be put into the drafttreaty if and when finally adopted by us. For my OW11 part, I have also come round to the idea that this system, although it may appear at the beginning as very new, is a reasonable one. I do not think that we must discuss it from the point of view of this or that particular interest. We are not going to make international laws for the benefit of the shipowners solely, or of cargoowners, or for the benefit of the emigrants. What we are trying to do, is to frame reasonable and just -international laws, with due respect to all interests concerned. Well, I think that this scheme can be modelled. in such a way
that it will meet all interests. It can certainly be made to meet the interests of the emigrants, and I feel .sure that
380
the International Labour Bureau has the same conviction. On the other hand, it is quite clear that for the passengers of first and second classes, there is at the bottom of the present system a great amount of illusion. They may go to sea with the idea that the principles of liability under the common maritime laws, as they now exist, do afford
them a serious protection; and I may say that, in my °Pinion, speaking not for one individual case, but taking
them in bulk, there is no serious remedy against the carrying ship under the present law. There may be, in some given cases; but as an average, it is not a good remedy. If a man is going across the seas and asks what his widow will get should he perish, it would be wise to advise him to take out a policy of insurance. Now, what we are going to do is to say frankly and openly : If you must rely- on any third party to pay to your relatives a compensation for loss, when you perish, you better do the
reasonable thing, and take out a policy of insurance covering the amount they wish to have covered and pay the premium therefor. But do not think you are acting as a good father of a family if you leave it to the judges and to the law to get their remedy. As to the shipowners, I think for my part that they are going to enlarge their liability, because I happen to know what has been the cost of the present system of law for the shipoivners of a. very big shipowning company, which have been carrying hundreds of thousands of passengers for the last 25 years from Antwerp to the other side of the Atlantic; the cost of the present system, as far as risks of liability for uf eclaims are concerned, has been absolutely a trifle. I have been authorized to state the figures: It has not cost that
company more than something as 3/10 per 1000 of every franc received as passage-money. I feel quite sure that the new scheme will be more costly; but I also say it will be a better system for the shipowners and for all parties concerned. It will be a much better system, because it will do away with the monstrous risk of having to pay enormous claims. As prudent companies and prudent underwriters, you have to take into account the immensity of
these risks which may crop up at a certain moment, to such an extent that it may hamper or destroy the good and safe working of the present system of insurance by Mutual clubs. I do not think that I am giving away secrets,
when I say that, should a catastrophe like the Titanic's happens two or three times in succession, the chance of shipowners of finding good underwriters would become very small indeed, because there is no good insurance if there is no limit to the liability. Any insurance, to be sound, must be based on an average. So I say that the system by itself may be a protection, but you ought to put the figures in because after all, it will turn out to be a matter of pounds, shillings and pence, and although after mature consideration, I am in favour of this schéme, I would not like to give a blank cheque by voting the draft
when the figures are not in. I must know what shall be the figures for emigrants and for other passengers, and for the shipowners. So my suggestion would be ,: first, that we will go on with the first reading of the various articles; that then, after considering the amendments which have been announced by Dr Loder, we refer the matter to the sub-committee; that the cdmmittee report
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both on this and other amendments and also on the scale of indemnities to be inserted in the treaty. **
J'ai résumé d'abord la réponse que le Bureau Permanent croit .devoir faire à M. Loder. Est-il dans vos intentions, a-t-il demandé, de faire voter d'emblée sur le sort de cette convention et n'est il pas plus prudent d'examiner
d'abord les divers articles du projet. J'ai répondu q-u'il avait raison et que nous ne procéderions ici qu'à une première lecture des articles. Qu'ensuite, nous renverrions les amendements à la sous-commission, mais que celle-ci complèterait le projet, e. A d. qu'elle fixerait le tarif d'indemnités qu'on propose d'insérer. A cette occasion, j'ai dit que je trouve que dans le projet qui nous est soumis, tous les intérks en cause peuvent parfaitement kre respectés. II ne faut pas considérer ce projet nouveau comme étant fait, soit à l'avantage des armateurs, soit l'avantage des émigrants, soit à l'avantage des autres passagers. Ce que nous devons nous efforcer de réaliser, c'est une loi internationale qui sauvegarde tons les intérêts légitimes.
M. LODER. - M. Franck vient de dire que les amendements seront référés à la commission'. Mais il est bien entendu, n'est-ce pas, que la commission sera entièrement libre, non seulement d'examiner les amendements, mais aussi de reprendre l'examen du projet en entier ? M. LOUIS FRANCK. - Parfaitement.
M. LOUIS VARLEZ. - Puisque votre Président a bien voulu me prier de parler, je vous dirai Pintérk profond
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avec lequel le Bureau International du Travail a suivi les discussions qui ont commencé dans votre sein; elles té-
moignent d'un esprit véritablement large et c'est avec la plus grande sympathie que nous suivons les efforts faits
clans la direction poursuivie. Il est certain qu'au début, il y a de grandes difficultés à surmonter lorsqu'on aborde un sujet comme celui-ci, mais il y a le principe qui me semble excellent, et qui permet de prendre une décision d'ensemble sans examiner avec trop de détails les petites améliorations qui pourraient kre introduites. C'est une grande entreprise, et les paroles prononcées par M. Franck
ont suffisamment prouvé eombien ii était nécessaire d'améliorer le projet, d'examiner toutes les circonstances qui peuvent mener A. une solution favorable.
Il y a deux choses que je voudrais faire remarquer, parce qu'elles me semblent un peu contradictoires. Ill y a un petit incident bien connu qui montre bien que, malgré tout, il y a nécessité d'assurer les passagers. Vous savez qu'au 1 janvier 1921, le gouvernement espagnol a intro-
duit l'assurance des émigrants contre les accidents de navigation. Or, la veille du jour oi la loi est entrée en vigueur, un vapeur, le Santa Isabella, avait touché A divers ports d'Espagne et y avait embarqué des passagers. Le lendemain, le Santa Isabella a fait naufrage, et cette
catastrophe a causé la mort de nombreux passagers. C'était le premier jour de l'application de la loi nouvelle et l'on s'est trouvé en présence d'un cas bien difficile les passagers avaient été embarqués la veille du jour la loi entrait en vigueur, mais ils étaient morts le lendemain. Etaieut-ils assurés, ou ne l'étaient-ils pas ? L'on s'est trouvé devant de grandes difficult& qui ont eu leur
répercussion au parlement, et ce sont ces difficult& qui ont démontré la nécessité de réformer la loi espagnole. Depuis 1921, des secours sont accord& aux émigrants victimes d'accidents de navigation et un nouveau règle-
ment vient d'être introduit pour entrer en vigueur le 1 janvier, pour lequel on a mis à profit l'expérience faite
par l'Espagne Le directeur de l'Office de l'émigration espagnol m'a remis le texte discuté en Espagne et la conclusion a laquelle la commission est arrivée est eelle de
M. Franck, à savoir : que la somme a payer à titre de prime est insignifiante. C'est une assurance qui ne cofite presque rien. Voici un passage de ce rapport : Le coût » de l'assurance qui est actuellement de 1 0/" est beau)) coup tfop élevé; cette prime élevée n'est pas justifiée
» par la statistique et on pourrait la diminuer tout en » donnant encore la protection nécessaire )). Il s'agit done, en réalité, d'un risque infime, risque qui, sans doute, donne lieu à des protestations, à des douleurs individuelles, mais il ne s'agit pas d'une somme qui puisse peser sérieusement sur les finances des compagnies de navigation. C'est à peine 1/2 °/" Disons même, pour ètre généreux, que c'est 2 "r; ce serait encore insignifiant. Dans ces conditions, il doit ètre très intéressant, non pas de voter de prime abord toutes les dispositions qui nous sont soumises, mais de continuer à étudier la question. Une fois que l'on se trouvera en présence de chiffres complets, on saura facilement à quoi on s'expose et l'on pourra constater que, tout en poursuivant un but humanitaire et pratique, on ne devra considérer que des dépenses, en somme, minimes.
Je répke que le Bureau International du Travail est
hautement intéressé a ces discussions et il vous donnera volontiers tons les renseignements qu'il a a sa disposition, it la suite des résolutions votées par le Bureau International. (Applaudissements.)
Mr CAUTY. - Mr President and Gentlemen, I do not propose to detain you for very long; but I feel it desirable on the interesting question that we are discussing and with
regard to the various views that have been expressed as to bow far the proposed scheme should go, to advise the Committee that to day, crossing the ocean, there are far more passengers travelling third class who are not emigrants, and could not be brought under any definition of emigrants, and who are equally inexperienced and equally require the protection that we are proposing to give them. The curtailment at the moment of the emigration to the United States has very largely caused that result. In endorsing the remarks that were made by Mr Louis Franck, which I do very cordially, I would like to urge on this Com-
mittee the necessity of pushing this matter forward with al reasonable promptitude. At the meeting in Gothenburg two years ago, it was there stated that whilst Switzerland had a compulsory insurance in operation for some years
and I might remark incidentally that the amount is an insurance on emigrants of some very small sum, I think I am right in saying 20 that Hungary, Jugoslavia, Czecko-Slovakia, Bulgaria and Spain were also then considering schemes for compulsory insurance of their emigrants. We have been told by the President, and I am sure we all realise, particularly shipowners, the confusion and the uncertainty today of the cover given by the laws that exist, that will be much worse- if we halt in
386
our efforts until these further compulsory schemes are brought forward by the State's I llave named and possibly others who will not be disposed to wait. It behoves this Committee, I suggest for their careful consideration,
that if after discussing the terms of the Convention the work of fixing the amounts is referred to a Sub-Committee that should be done very promptly and steps taken to act on their advice without any further delay than is absolutely necessary. (Tracluction orale par M. Sofia). M. Canty vient dormer A la conference des indications de fait intéressantes. Elles montrent qu'en voulant limiter le système d'assurance obligatoire aux seuls emigrants, on ferait tort A de très nombreux passa. gers, voyageant actuellement en troisième classe et qui, cependant, ont
le meme droit à être protégés que les emigrants. Il signale que sur les lignes transatlantiques, il y a plus de non-emigrants que d'émigrants en troisième classe. En second lieu, il signale que plusieurs pays, comme la Suisse, rEspagne, la Tchéco-Slovaquie, ont déjà des lois sur l'assurance obligatoire d'émigrants. D'autres pays, comme la Bulgarie et la Hongrie, ont de pareilles lois en elaboration. Il y a done lieu, lui semble-t-il, pour nous, d'agir aussi rapidement que possible, sinon on devrait redouter bien des confusions dues a la diversité des lois nationales. Il appelle, d'autre part,
rattention de la commission sur le caractère relativement urgent de la question; il importe en consequence que les renseignements desires soient donnés le plus rapidement possible, afin cine notre ceuvre puisse étre con. tinuée sans retard appreciable.
M. Louts FRANCK.
May I suggest to shipowners and
to any other parties interested that, whenever they hear of some bill or proposed legislation on this point, they would refer to us at once. We will then take steps to bring to the notice of that particular Government, what is being done by this Committee, and try and obtain that such Governments will wait with passing legislation until we have reached some definite agreement. I feel sure the International Labour Bureau will support this view. ***
:187 --
A la suite de ce que vient de dire M. Cauty, je prierais
les armateurs et les autres intéressés, s'ils apprennent que, dans l'un ou l'autre pays, un projet d'assurance obligatoire est sur le métier, de bien vouloir nous le signaler
sans retard; notre Comité pourra alors s'adresser à ces Gouvernements et attirer leur attention sur les travaux entrepris en ce moment, en leur disant : veuillez bien patienter quelques mois, mieux vaut faire quelque chose de bien et de définitif.
Je suis sûr que le Bureau International du Travail partage notre opinion à cet égard. Son intérêt, comme le natre, c'est de faire quelque chose de définitif, qui soit d'application dans tous les pays. M. LE PRÉSIDENT.
Il est temps maintenant d'aborder
l'examen des articles de l'avant-projet formulé par la Commission de Paris. M. SIEVEKING.
Je demande la parole pour une
motion d'ordre. Si vous soumettez au vote de la conférence les détails de l'avant-projet, je voudrais vous demander si un membre qui vote en faveur d'un article ou d'un détail, est considéré par cela même comme ayant voté pour le principe. Il est toujours entendu que vous pouvez exprimer librement votre opinion sur chacun des articles, tout en réservant votre vote sur l'ensemble de l'avant-projet. M. LOUIS FRANCK.
ARTICLE 1.
1. In this Convention the 1. Dans la présente Convention les termes suivants sont em- following words are employ-
:188
plovés avee le sens indiqué ci- ed with the meanings set out après
below
« Armateur » (shipowner) signifie le propriétaire ou l'affré-
« Shipowner » includes
Un contrat pour le transport d'un ou de plusieurs passagers à bord du navire; « passager » signifie toute personne transportée ainsi qu'il est dit ci-dessus en vertu de pareil contrat moy-ennant rémunération pour Parmateur, sous 1.6serve des dispositions de l'art. 3 de la Convention; « navire » signifie tout bâ-
contract to carry one or
the owner or charterer of teur de tout navire qui a conclu any ship who enters into a more passengers on board such ship ; « Passenger » includes any person who is so carried
under any such contract for reward to the shipowner.
This definition is subject to the provisions of article 3 of the Convention; « Ship » includes any timent à bord duquel un pas- vessel on board of which a sager est transporté moyennant passenger is carried for rerémunération à l'armiteur, soit ward to the shipowner, que pareil navire soit régulière- whether such vessel is regument employé pour le transport larly employed for the carde passagers, soit que, étant ré- riage of passengers or, b.eing gulièrement employé pour le regularly employed for the transport de marchandises seu- carriage of goods only, is lement, il soit affecté lors d'un upon a particular occasion voyage particulier au transport employed for the carriage of d'un ou de plusieurs passagers, a passenger or passengers. sous réserve des dispositions de This definition is subject to l'article 2 de la Convention; the provisions of Article 2 le « voyage » comprend of the Convention; toute la période pendant la« V oy-age » covers the quelle le passager se trouve whole period while the pasbord et, en outre, les opérations senger is on board, and dud'embarquement et de &barque- ring the process of embar-
ment soit directement de terre kation and disembarkation. bord ou inversément, soit par whether directly from Or to
le moyen de ponts-yolants ou the shore or by gangway or d'échelles, ou encore de « ten- ladder, or by means of tenders », remorqueurs, transbor- ders, tugs, ferries or other deurs ou autres embareations.
craft.
Dr W. R. BISSCHOP. - Mr President, I should- like to
ask whether in c) it is necessary to retain the words a Whether such vessel is regularly employed for the carriage of passengers, or being regularl-y employed for the carriage of goods only, is upon a particular occasion employed for the carriage of a passenger or passengers ». The definition as it runs is « Ship includes any vessel
on board of which a passenger is carried for reward to the shipowner ». That is a very wide one, and I am very much afraid that by putting something behind which only regards two cases, you limit this first. I do not think
it necessary at all that the definition should be limited, and I propose that those words should be left out, the definition of ship being only « Ship includes any vessel on board of which a passenger is carried for reward to the shipowner ». ***
Je propose dans la définition c) du navire, de ne retenir que les mots : « Navire » signifie tout bâtiment à bord duquel un passager est transporté moyennant rémunéra-
tion à l'armateur ». Je pense que les mots qui suivent doivent être supprimés, parce que cette première défmition est très large et si vous y ajoutez les mots se trouvant dans le projet actuel, je crains que vous ne restreigniez la définition donnée en premier lieu. II me semble qu'il vaut heaucoup mieux nous en tenir à cette définition large.
- 390 Sir NORMAN HILL. - Mr President. At Paris we were
anxious to make quite clear that we were including all ships. In a great many countries, as you know, their laws and regulations make a sharp distinction between passenger ships and other ships. We wanted to make quite clear we had in our minds all ships carrying passengers. If, Sir, you think the first lines will be sufficient
we shall be quite content to leave it at that. I quite follow what Dr Bisschop says, if you enlarge you perhaps create doubts, but if you do not enlarge thou you may be told that doubts exist. It is only a drafting point. That is the explanation. M. LOUIS FRANCK. - Je suis de ravis du Dr Bisschop:
il vaut mieux s'en tenir à la définition générale. M. LE PRÉSIDENT. - La conférence est-elle d'accord pour ne retenir que la définition générale? (Marques d'assentiment.) ARTICLE 2.
Tout armateur assurera tous les passagers contre les risques de mort ou de lésions corporelles courus pendant le voy-age, le tout conformément 2.
2. Every shipowner shall insure all passengers against
all risks of death or perso-
nal injury incurred upon the voy-age in accordance with l'annexe A. Il est toutefois en- Schedule A annexed hereto. tendu que chacune des Hautes Provided that each of the Parties contractantes aura la High Contracting Parties faculté d'exclure de rapplication shall be at liberty to exempt de la présente Convention tous from the operation of this navires naviguant exclusivement Convention any vessels nasur les fleuves (« tidal rivers ») vigating exclusively in tidal et sur les voies de communica- rivers and inland watertion intérieures par eau. yvays.
Might I explain that in excluding, Sir NORMAN HILL. as defined by this article, vessels navigating exclusively'
in tidal rivers and inland waterways, we had in view international vessels? There are means of cornmunication
between different nations across tidal rivers and inland waterways. We did not think that, this convention being an international convention, would apply to the maritime coasting trade of any nation. If provisions, similar to this convention, are to be applied to the maritime coasting trade of any particular nation, we take it that it will be for the nations to do it for themselves. That is in accordance, I believe, with the usual practice of forming international conventions, and I know that, at the League of Nations, the common form used in settling international convention is that (( this convention does not in any way apply to maritime coasting vessels ». I think that goes without saying. (Traduction orale par M. Smut).
Sir Norman Hill explique l'idée e'ssentielle de l'article 2, que la convention ne s'applique qu'aux navires accomplissant un trajet international.
Il est entendu que pour les voies de navigation intérieure et le trafic côtier, le règlement reste du ressort de la loi nationale, chaque Etat faisant ses propres lois pour le trafic local et national.
M. ALBERT LE JEUNE.
L'ASSOciati.011 Belge de Droit
Maritime, dans le rapport de sa commission spéciale, a fait au sujet de cet article 2, une remarque. 11 dit qu'à. l'article 2, il est entendu que, dans la première phrase: (( Tout armateur assurera tous les passagers contre les risques de mort, etc. » C'est également le sens et la portée
d'un terme analogue, comme le verbe (( indemrtiser employé à l'article 4.
39-2
*
I just said that the Belgian Association of Maritime Law, in their report 011 the matter, state in regard to article 2 : it is understood that in the first sentence (( Every shipowner shall insure all passengers against » all risks of death, etc. » nt. ans that every shipowner is an insurer by right. This is also the meaning of similar words such as the verb ((indemnify », used in. article 4. I think the shipowners will understand the object of this remark, as in the articles which follow it is understood that _they are at liberty to re-in.sure with clubs or with insurance companies. It must be well understood that this liberty tinder the text of the conventibn remains to them. Sir NORMAN HILL.
You refer to the words : The
shipowner ((will insure, will indenanify, will undertake...» In English, the word «insure», is the strongest word we can use. If an accident happens, there is no argument as to how
or When one is responsible. You have insured, and you
pay. Whether the shipowner must fortify his responsibility by getting himself approved as a responsible per son to assume these liabilities, or in having re-insured
himself with clubs or insurance companies, is another
thing. But we are in entire accord with the Belgian Committee. (T raduction orate par M. SouR).
Sir Norman Hill explique que le sens des mots employes en Anglais