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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.
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It seems as if the State ought to be equalled with the private citizen.
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
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), Alten (Sweden), Lee (Great Britain), Scott (Great Britain).
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 Comitê 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 so to do 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:
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 the 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 sixty 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 nature 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 áu 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:
Germany voted in favor of the amendment moved by France, with the addition of a one-year limitation, as moved by Sweden.
The individual differences of opinion thus revealed were such that your committee determined to present the foregoing history of our deliberations to the conference, leaving decision to a plenary session after an opportunity, desired by at least some of our members, of consulting with their fellow nationals.
Article III, 8: Discussion of this section, especially in connection with article III, 3, led to a request for the formulation by the chairman of the following opinion, which was accepted and which we now especially request to be included in the Rapport de la Conférence:
In respect of article III, 8, it is the opinion of the Chairman and was the opinion of those participating in discussion at the London meeting of the Comité Maritime of this section and of article 111, 3, that the result is: if a shipowner “has no reasonable means of checking" cargo by him received, he may still use such phrases as “about,” “more or less,' weight, quantity, and number unknown” in qualification of statements of the bill of lading; but if the shipowner has in fact reasonable means of checking, he must issue a bill of lading giving quantity, etc., without modifying phrases.
If by inadvertence or mistake the shipowner issues a bill of lading for more than he actually receives without any modifying phrases, he is absolutely bound to the exact quantity, etc., of his bill to every bona fide holder for value of the erroneous bill of lading.
In practice, when modifying or indefinite phrases are used, and where there is an apparent “short delivery,” evidence is ordinarily taken as to the usual variance in outturn in the trade concerned; if the variance is greater than usual, the shipowners must pay for what exceeds the expected limit of variance.
Article IV, 1:
At the suggestion of Sweden, concurred in by all, it is noted as the opinion of the committee that this section is intended to apply, and does apply merely, to unseaworthiness as defined or described in article Iil, 1 (a), (b), and (c), and confines the obligation of due diligence to the beginning of the voyage.
Article IV, 2 and 3:
Holland, Sweden, and Germany unite in moving that the enumeration of specific exemptions contained in this section, except (a), be suppressed, and the subject covered by one reciprocal exemption, releasing both shipper and shipowner from losses or damage arising or resulting from causes not the act, fault, or neglect of one of the contracting parties, his agents or servants.
After discussion, the motion was opposed by Great Britain, Belgium, France, and the United States, and so not carried.
Article IV, 2 (a):
Sweden moves to substitute for the word "administration” (management) in this section other and more specific phrases.
As the matter was one of principle, it was not necessary to frame such phrases; and after discussion it was resolved by the votes of Great Britain, France, Holland, Germany, Belgium, and the United States to adhere to the text of the projet.
Article IV, 2 (b):
Moved by the United States, and unanimously agreed to, that this subsection be changed to read: Fire, unless caused by the actual fault or privity of the carrier. Article IV, 2 (m):
Moved by France, and unanimously agreed to, that this subsection be changed to read:
Wastage in bulk or weight, or any other loss or damage arising from inherent defect, quality or vice of the goods.
Article IV, 4:
After discussion of this section the committee agreed it to be the intent of the text that even if shipper and shipowner specifically agree upon possible deviation to a specified port, and express that agreement in the bill of lading, it remains possible for a party to complain in a court of law that what had been agreed to was an unreasonable deviation.
Thereupon the United States offered the following as a substitute for the section:
Any deviation in saving or attempting to save life or property at sea, any deviation to ports or places specifically stated in the contract of carriage, and any deviation reasonable, having regard to the service in which the ship is engaged, shall not be deemed infringements or breaches of these rules or of the contract of carriage; and the carrier shall not be liable for any loss or damage resulting therefrom.
This amendment was carried by the votes of France, Germany, Holland, Sweden, and the United States.
Contra: Great Britain and Belgium.