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case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a nonnegotiable document and shall be marked as such.
Any agreement so entered into shall have full legal effect.
Provided that this article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms, and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.
ARTICLE VII.--Limitations on the application of the rules. Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connection with, the custody and care and handling of goods prior to the loading on, and subsequent to, the delivery discharge from the ship on which the goods are carried by sea.
ARTICLE VIII.-Limitation of liability.
The provisions of these rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of owners of seagoing vessels.
EXHIBIT D.-RECOMMENDATIONS FROM REPORTS OF NATI
ASSOCIATIONS IN REGARD TO IMMUNITY OF STATE-OWNED STATE-CHARTERED VESSELS.
* * *
We are of opinion that it behooves to subject to the i of common law, as well in respect of jurisdiction as of arrest (whe conservatory or arrest for execution) any property of maritime i which is State-owned, with the sole exception of warships and State-owned ships exclusively employed for services of public intei With regard to this latter class of ships, it would be desirable 1 special agreements should be entered into by all—or at any rate some States signatories of the international convention to arrived at, which should include some provisions as to guarant given beforehand, so as to render useless any arrest of warships o vessels exclusively employed for public services. In this manr any rights of parties interested, namely, as regards collision a salvage, would be safeguarded. It should be observed that su arrangements would imply also some regulations to be agreed up as to jurisdiction which the States signing such special agreemer would reciprocally recognise to their courts.
The Belgian Association, when límiting the immunity to warshi and to State-owned vessels exclusively employed on public servic has followed the wording used in the Convention of 23rd Septembe 1910, on Collision (article 11) and on Salvage (article 14).
In Denmark the feeling that it is but fair that State-owned ship should be treated before the courts in the same manner as privatel owned vessels, is so deeply rooted that, in our opinion, the contrarj 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.
Rule 1.—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 111.-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 the claims against such State arising by reason of their transport, unless they be intended to a public service of that State.
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;
(6) 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
às 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.
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 questions of collision, on the basis of the studies which have been undertaken already on the subject at the Conferences of Hamburg and Amsterdam.
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.
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.
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.
Immunity for war vessels to be maintained (contra: Dr. Matsunami).
* 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.
* * * 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