EXHIBIT D.-RECOMMENDATIONS FROM REPORTS OF NATIONAL ASSOCIATIONS IN REGARD TO IMMUNITY OF STATE-OWNED AND STATE-CHARTERED VESSELS

BELGIUM

* * * We are of opinion that it behooves to subject to the rules of common law, as well in respect of jurisdiction as of arrest (whether conservatory or arrest for execution) any property of maritime kind which is State-owned, with the sole exception of warships and of State-owned ships exclusively employed for services of public interest. With regard to this latter class of ships, it would be desirable that special agreements should be entered into by all-or at any rate by some-States signatories of the international convention to be arrived at, which should include some provisions as to guarantees given beforehand, so as to render useless any arrest of warships or of vessels exclusively employed for public services. In this manner, any rights of parties interested, namely as regards collision and salvage, would be safeguarded. It should be observed that such arrangements would imply also some regulations to be agreed upon as to jurisdiction which the States signing such special agreements would reciprocally recognize to their courts.

The Belgian Association, when limiting the immunity to warships and to State-owned vessels exclusively employed on public service, has followed the wording used in the convention of 23d September, 1910, on collision (article 11) and on salvage (article 14).

DENMARK

In Denmark the feeling that it is but fair that State-owned ships should be treated before the courts in the same manner as privately-owned vessels, is so deeply rooted that, in our opinion, the contrary rule according to which the State should not be subjected to the jurisdiction of its own courts against its will, would appear as affording insufficient security.

FRANCE

Rule I.-The actions directed against a foreign State by reason of the management of ships owned or managed by it and also actions in rem relating to such ships (war vessels being excluded in both cases) can be brought before the courts which would have jurisdiction for deciding on any actions against a foreign shipowner or against a ship belonging to a foreign owner.

Rule II.-War vessels and ships owned or chartered by a State and affected, in that State, to the carrying out of a public service can not be subject to any arrest in another country for any cause whatever. On the other hand, the State can not avail itself of the legal provisions limiting the shipowners' liability in respect of the obligations arising from the management of such ships.

Rule III.-Commercial ships belonging to a State can be arrested in all countries as a guarantee for the claims arising by reason of the management of such ships.

Rule IV.-Shall be considered as State-owned commercial ships any vessels employed to the carriage of passengers or of goods, even if the State should affect them to the transport of cargoes belonging to itself, except in the case where such goods are intended to the needs of the public services of such State.

Rule V.-The cargoes belonging to a State can be arrested as a guarantee for claims against such State arising by reason of their transport, unless they be intended to a public service of that State.

GREAT BRITAIN

MARITIME LAW COMMITTEE OF THE INTERNATIONAL LAW ASSOCIATION

We are in favor of the abolition of any immunity granted either to (a) war vessels, or (b) any of the other vessels mentioned in questions I and II of the questionnaire, because

(a) It is liable to interfere with the various measures internationally adopted for the promotion of safety at sea. The rules of navigation can not be properly safeguarded if one class of vessels is exempt from the consequences of failure to observe them, however well trained the ship's personnel and however severe the discipline observed on board ship;

(b) Uncertainty as to disabled vessel's chances, and therefore, as to whether salvage services rendered would meet with any reward tends to create at sea

reluctance in the rendering of such services, especially if the services were such as to involve risk to the safety of the private merchant and shipowner who may be held liable by the State for torts committed by him or his servants, but who remains without remedy for torts committed against himself and his property. It is considered that all war vessels should be free from actual arrest, as arrest might interfere with the public services of any such vessel; provided that the place of arrest be taken by the giving of an undertaking by the representative of the power against whose vessel process is issued for the payment of costs and damages an undertaking which would be equivalent to bail. A similar undertaking should take the place of bail in the case of all other State-owned vessels. Such undertaking may be given at any time and need not delay the vessel.

CHAMBER OF SHIPPING OF THE UNITED KINGDOM

(1) That all maritime property owned by or in the possession or service of a Sovereign State, whether national or foreign, other than property being solely for purposes of war, should, as regards the rights, privileges, and liabilities conferred or imposed by the law of any country be placed on precisely the same footing as private owned maritime property under the law of that country.

(2) That maritime property owned by or in the possession or service of a sovereign State and being used solely for purposes of war should, as regards the rights, privileges and liabilities conferred or imposed by the law of any country be placed on the same footing as private owned maritime property under the law of that country, provided that such property shall not be subject to arrest if it is owned by or in the possession or service of a State which has made provision either generally or in the special case for the giving of security in lieu of arrest in the courts of the country where the proceedings are instituted.

ITALY
I

Actions against State-owned ships should be submitted to the courts which have jurisdiction by virtue of the principles regulating the matter under international law.

And as the question of conflict of jurisdiction always involves great difficulties, it would be advisable as long as the ideal solution of an international court of justice to decide on all disputes in matters of collision and salvage is not arrived at-to establish a set of rigid rules as to jurisdiction, especially in regard to the questions of collision, on the basis of the studies which have been undertaken already on the subject at the conferences of Hamburg and Amsterdam.

II

As to the law which ought to be applied, this should be the local law of the competent court to which the case is submitted. In regard to disputes arising by reason of a collision or of salvage services between ships belonging to States which are bound by the Brussels conventions, the provisions of the said conventions should be applied. Hence it will be necessary to abrogate the articles (namely article 11 of the convention on collision and article 14 of the convention on salvage) which exclude from the scope of the said conventions any ships exclusively affected to a public service.

III

It would be necessary to proclaim the prohibition of subjecting to any arrest, whether for conservancy or for execution, warships and ships employed on public service. Such immunity should be extended even to ships owned by private parties but affected to a public service (activity of the State for police purposes and for its social activity).

IV

Merchant vessels belonging to a State or chartered by such State should be subjected to the same system of law as private-owned ships, even in the event of their being employed for the carriage of merchandise belonging to the State.

ADDITIONAL REMARK

In order to avoid the difficulties resulting from the uncertainties and hesitations of the law, doctrine, and jurisprudence in regard to the legal actions brought against a State, it would be advisable to fix by means of an international agreement, either who shall be the person to whom a writ of process can be served or what procedure shall be followed in respect of the issue of such writ. And by way of international agreement also, the various States would undertake to carry out, without any compulsion being required, the decisions of foreign courts when such decisions, of course, have been completed by the formula of exequatur through the proper judicial authority of the State against which such judgments have been given. This implies necessarily that such judicial authority shall have to examine whether the foreign judgment has been given without encroaching upon the prerogatives which are essential and inherent to the proper working of any form of judicature, and with due respect to international public order.

JAPAN

Immunity for war vessels to be maintained (contra: Doctor Matsunami).

NETHERLANDS

* * * Keeping in mind, however, that other States have embarked on quite a different course and that a considerable percentage of the tonnage of some countries is owned or employed by the State for commercial purposes only, we agree that there exist grave objections to the immunity of these vessels and that it is in the interest of international trade to set certain bounds to claims to that effect.

There has been some discussion as to the immunity of warships and it was pointed out by a minority that the time had come to consider whether that privilege was not a thing of the past. But the majority held that it would greatly endanger international agreement on the point of immunity if the question of war vessels should be included and, moreover, that the dignity of the State was directly concerned in the treatment of ships belonging to its navy. War vessels have given very little trouble in the past and, we trust, will continue to do so in the future.

Confining ourselves to vessels engaged in trade, we are prepared to support any proposal tending to international agreement: (a) That every State engaged in trade should submit to the jurisdiction of every other State in matters relating to trade and should have the same position as an ordinary litigant, and (b) that its commercial maritime property, as regards immunity, should be placed on the same footing as private maritime property under the ordinary mercantile law. We should add that, in our opinion, there remains in most cases the preliminary question whether, in fact, the property concerned should be considered as used for commercial purposes or not. A minority gave as their opinion that it should not be left to a national court of justice to decide on this point and that it would be preferable to leave questions of such vast importance to a supernational

court.

NORWAY

* We must emphatically second the opinion that the immunity of the State in those countries where this still exists must as soon as possible be altered in such a way that the State and the private citizen be submitted to the same legal rules in regard to the fulfilling of obligations under or outside of contracts. We are most sincerely interested in this being done. Norwegian shipowners have had large claims the promotion of which has been blocked and interfered with on account of the present unfortunate rules of procedure, according to which the State as such could not be sued except with the permission of the proper authorities.

SWEDEN

It seems as if the State ought to be equalled with the private citizen.

UNITED STATES

Resolved that it is the sense of this association that vessels belonging to a sovereign, engaged only in governmental and noncommercial work, should not

be subject to attachment or other legal process, either in tort or contract, but the sovereign should be suable in personam in the appropriate municipal courts of the sovereign without special governmental action; but that it is the sense of this meeting that all Government owned or operated vessels regularly or temporarily engaged in commercial or profit-earning occupations should be subject to suit, and to the creation and enforcement of maritime liens, in like manner as are vessels privately owned under the maritime owner.

EXHIBIT E.-REPORT OF THE SOUS-COMMISSION APPOINTED BY THE INTERNATIONAL CONFERENCE ON MARITIME LAW TO CONSIDER THE PROPOSED RULES FOR THE CARRIAGE OF GOODS BY SEA, PRESENTED TO THE CONFERENCE BY THE BELGIAN GOVERNMENT PURSUANT TO THE MEETING OF THE COMITÉ MARITIME INTERNATIONAL HELD IN LONDON, OCTOBER 9-11, 1922

Members of sous commission.—Messrs. Bagge (Sweden); Berlingieri (Italy); Hough (United States), chairman; Langton (Great Britain); Le Jeune (Belgium); Malengraaf (Holland); Rambke (Germany); de Rousiers (France); van Sloopen (Holland).

Secretary.-M. Müuls (Belgium).

Ad audiendum.-Messrs. Haultman (Elbe and Oder Commission), (Sweden), Lee (Great Britain), Scott (Great Britain).

Alten

Your committee fully recognized that the projet submitted to it has grown out of the “Hague Rules, 1921"; that the subject of international regulation of sea carriage of goods has received much consideration in maritime countries during the last few years; further that the present form of the projet is a compromise between the representatives of many shipping and shipowning interests acting through their several trade organizations. It seems obvious that rules of such origin, framed largely by men personally engaged in the business to be regulated, are entitled to respectful and careful consideration, and it is in this spirit that we have investigated their details.

Nevertheless, the truth remains that the Governments of several important maritime States did not receive timely notice that this or any similar projet would be presented to this conference and that accordingly many of the delegates here assembled are without instructions as to the attitude of their respective Governments on the subject.

Recognizing, therefore, the impossibility of final action by uninstructed delegates, we resolved to examine the projet in a spirit of friendly individual criticism with full liberty in any delegate to propose the omission, restriction, or amendment of any portion thereof, and to report our views, with due notation of the preferences or suggestions of the minority.

We are agreed that the projet is not and does not pretend to be a code of affreightment. It is but a set of rules designed to improve and unify bills of lading regarded as the instruments or means of credit.

We, therefore, recommend that this be expressed in the title, by changing the same to read: RULES FOR CARRIAGE OF GOODS BY SEA UNDER BILLS OF LADING. Although a majority of your committee consists of men trained in the law, we have refrained as far as possible from technical or verbal criticism of language largely suggested by practical men speaking of their own affairs. We have strongly felt that such criticism by numerous lawyers of several countries with widely differing systems of jurisprudence would but produce unnecessary refinements and delay.

Concerning criticism and amendment of the text of the projet submitted, we beg to report as follows: .

Article I (b):

On motion of France, unanimously agreed that this section should read: "Contrats de transport' s'applique uniquement aux contrats de transport constatés par un connaissement, ou tout document similaire faisant titre tant et autant que ce document se rapporte au transport de marchandises par mer."

Also, on motion of Great Britain, unanimously agreed that there be added to this section as above amended the following:

"Including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading is negotiated."

Article III, 1 (a):

Moved by Holland that, inasmuch as the words "seaworthy" and "état de navigabilité" appear vague, they should be changed to a more accurate and modern form, as, for instance:

"Make the ship reasonably fit to perform the service for which it is intended." After prolonged discussion, the motion was opposed by Belgium, France, Germany, Great Britain, and the United States, and not carried.

Article III, 4:

Moved by France and agreed to unanimously that this section should read: "Un tel connaissement sera une présomption, sauf preuve contraire de la réception par le transporteur des marchandises telles qu'elles y sont décrites conformément au paragraphe 3, (a), (b), et (c).”

Moved by Sweden and supported by Holland and Germany that there be added to this section a paragraph declaring:

"Que l'expression 'présomption sauf preuve contraire' n'empêche pas les pays contractants de reconnaître une plus grande force probante au connaissement." After debate, opposed by Belgium, France, Great Britain, and the United States, and not carried.

Article III, 6:

We observe that the Comité Maritime did not fully agree on this section, but that it was by a plenary sitting of the comité left to this conference to fix the time when notice of loss or damage should be given, and also the time within which suit must be brought against the shipowner for recovery on account of the

same.

Our chairman therefore requested any member of the committee who wished to do so to present in writing a substitute for this section in order that discussion of the whole matter might be aided.

Thereupon the United States submitted and moved the adoption of the following as a substitute for the text of the projet:

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'Unless notice of apparent 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 the time of the removal of the goods into the custody of the person entitled to delivery thereof, such removal shall create a presumption that the person entitled to delivery has received the goods as described in the bill of lading.

"Notation of the fact of loss or damage made on receipt given to the carrier for the goods shall be a sufficient notice as herein required.

"Unless notice of nonapparent loss or damage and the general nature thereof be given in writing to the carrier or his agent at the port of discharge within 60 days after the removal of the goods as aforesaid (or after the time when the goods would have been removed in the ordinary course of business) neither the carrier nor the ship shall in any event be or become liable in respect of such loss or damage; and in no event shall either ship or carrier be or become liable in respect of loss or damage, apparent or nonapparent, unless suit be instituted to recover therefor within one year after the arrival of said ship at said port of discharge."

France also submitted and moved the adoption of the substitute hereafter set forth, explaining that the intent of the motion was to regulate only the giving of notice of loss or damage and the probative value of such notice, leaving all other details to the law of the port of discharge. Here follows the substitute as proposed:

"A moins qu'une notification de perte ou dommage et la natura générale de ces perte ou dommage ne soit signifiée au transporteur ou à son agent au port de décharge suivant les formes et dans les délais prescrits par la loi nationale du navire, l'enlèvement des marchandises constitue sauf preuve contraire une présomption de la délivrance par le transporteur des marchandises telles qu'elles sont décrites au connaissement."

Sweden then moved that the text of this section of the projet be amended to read:

"Unless notice of a claim for loss or damage and the nature of such claim be given in writing to the carrier or his agent at the port of discharge within a reasonable time of the removal of the goods (with the remainder of the text section unchanged except the period for bringing suit should be changed from two years to one year)."

After discussion, a vote showed:

For amendment proposed by the United States-that country alone.