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the benefit of the provision of the last paragraph in article 1 by which he is allowed to limit his liability to 8 pounds sterling for every ton of his ship. From the moment when the shipowner declares that he will pay this 8 pounds sterling per ton he owes nothing more.
Article 6. The provision of that article intended to define the meaning of the word "voyage” leaves such discretion with the judge that the question arises whether it really serves any purpose.
Article 9. This provision seems to be inacceptable. Under it the shipowner who had to file a bond in order to keep his ship going, would be treated more rigorously than if he had not filed any such bond.
Article 11. The wording of that article is extremely complicated. It might be well to substitute another for it, as for instance:
The provisions of this convention apply to the outfitter of the ship, who does not own it, and in cases of charter, the principal charterer.
Article 13. That the convention will be applicable if one party in interest alone happens to be a national of one of the contracting states can not be admitted. Under such a rule it would be enough that one creditor be such a national, to involve application of the convention. It will be advisable to declare that the convention is applicable only when the ship which gave rise to the liability carries the flag of one of the States.
Article 16. The enormous variations in the rates of exchange make it necessary for the case of liability to the extent of 8 pounds sterling per ton to accept a rule determining the manner of fixing the value of the pound sterling in countries where the said pound is not legal tender. A declaration may be made in the convention that the pound sterling will be rated at par.
II. TENTATIVE DRAFT OF AN INTERNATIONAL CONVENTION FOR THE
UNIFICATION OF CERTAIN RULES RELATING TO MARITIME MORTGAGES AND LIENS.
As early as 1911 the French Government gave its general adhesion to the plan of diminishing the number of maritime liens and defining them in convention. It had two objects therein: To increase the value of the maritime mortgage over which liens have the priority and to do away with the conflicts of law arising from the diversity of maritime liens recognized by the law of the several countries. Yet the draft of convention appears to be open to the following remarks:
Article 3. It is necessary to cause to appear in the first paragraph of that article, among the privileged charges, next to the pilotage fees, the cost of towage in entering the last port.
Article 3, last paragraph. That provision is either useless or incomplete.
It is useless if it means that the domestic law of each contracting state may maintain a lien enjoyed by the claims of public institutions for mariners' insurance, as the convention does not deal with domestic legislation.
It is incomplete if it merely means that the lien is one to be added to those admitted by the convention in the international relations, as then the convention should assign a rank to that lien.
Article 7. The definition of “ voyage” as given in that article leaves such discretion to the judge that it seems useless.
Article 10. The first paragraph of this article refers to national laws. What is the meaning of the phrase? Are the laws of the country whose flag is carried by the ship or the laws of the country where the dispute is brought before the courts (ler fori) in question? It is likely that the intention was to refer to the law of the flag. It is essential to use phrases that are not open to doubt.
Article 11. Immediately upon the payment of the freight either to the shipowner or the master or any representative of the owner, the debt of freight is extinguished and thereafter there can be no further question of any lien whatsoever on the claim of the freight which no longer exists.
Article 12, second paragraph. This provision is lacking in clearness. Does it simply mean that the convention reserves the provisions of national laws which require the captain to perform formalities for certain operations in order to prevent his wrongdoing; or does it mean that by exception to the first paragraph of article 12 these formalities may constitute a condition of the existence of the liens? Article 12, second paragraph, has no doubt that second meaning. It might be well to select a wording which would not be open to - doubt.
Article 14, first paragraph. The rule laid down in that article does not seem acceptable. Under it it would be enough that one mortgage or lien creditor belonged to one of the contracting States to make the convention applicable. The nationality of a ship is what should be considered. The convention must apply from the moment the ship carries the flag of a contracting State. At any rate that is the system that has been affirmed by the two international conventions of 1910 regarding either collisions or assistance and salvage at sea.
Finally, the commission deems it its duty to express the wish that the Governments of the States invited to the conference of October next, be requested to communicate to the Belgian Government their remarks on the two drafts of conventions which, no doubt, have been somewhat lost sight of since 1913 by reason of events. These remarks should be laid before the other Governments.
That was the course adopted for previous conventions. That excellent method which had been previously adopted by the Belgian Government insures well prepared discussions in the conference and delegations supplied with instructions by their Governments.
EXHIBIT G.-OBSERVATIONS OF THE DELEGATES OF THE UNITED
STATES ON THE TENTATIVE DRAFT OF AN INTERNATIONAL CONVENTION RELATING TO THE LIMITATION OF THE LIABILITY OF OWNERS OF SEAGOING VESSELS.
The proposed convention adopts neither of the preexisting systems of limitation. Nor, as it seems to us, can it be said to be in any sense a compromise between the two. On the contrary, it takes from each system that limitation which is most favorable to the shipowner. We have not overlooked the provisions of article 8, but as these provisions will not be applicable, or of but slight moment in 90 per cent of all cases they need be given little weight in considering the effect of the new system. In saying this we in no way minimize the beneficial advailce which the adoption of article 8 will make in the American and continental systems.
It may safely be said that the British, American, and continental systems are all based upon the theory that the shipowner having surrendered to the claimants his interest in the maritime venture shall be relieved from all further liability. Under the continental and American systems the value surrendered may be nothing, and it may be £50 or more per ton, depending upon the value of the ship after the disaster. Under the British system, the fund is always £8 per ton. The justification of the British provision of £8 per ton is that on the average that will fairly represent the value of the shipowner's interest in the joint venture.
Each system is a logical attempt to carry out the original theory upon which the whole system of limitation of liability is based. The continental and American systems carry out that theory with greater exactness in each case. The British system makes up for its lack of exactness by its simplicity and certainty; each system possesses advantages of its own.
To us, however, the proposed new system possesses none of the advantages of either of the former systems. The new project has not the exact justice of the continental and American systems; on the contrary, by imposing no limit upon the losses of the claimant, and fixing å limit of £8 upon the possible satisfaction of his losses, it works a positive injustice.
Further, the new project gives up the simplicity and certainty of the British system. To adopt a limit of £8 upon what the shipowner must pay in any case, which in the British system was justified as a fair average, while at the same time imposing no limit in the opposite direction, seems to us opposed to justice and logic alike. We can not think such a system acceptable in the United States.
We are, however, extremely desirous of securing an internationally uniform system of limitation to which we could give our assent. We therefore present for consideration a number of proposals which seem to us to constitute a more reasonable method of combining the present systems. In doing so, we are well aware of the difficulty of securing general assent to any material change in the proposed system which has been so long under consideration.
1. Amend article 8 by providing that the fund thus created shall be available for the payment of cargo claims after all life and personal injury claims if any-have been satisfied. The fund shall be created irrespective of the existence of life or personal injury claimants, but in no event shall cargo claimants be entitled to receive from all sources more than £8 per ton.
2. Amend article 1 by providing that the liability shall in no case be less than £4 per ton nor more than £12 per
ton. 3. Amend article 1 by providing that the liability shall in no case exceed £16 per ton.
4. Amend article 1 by providing that the liability shall in no case exceed £8 per ton, or 50 per cent of the value of the vessel at the commencement of the voyage, whichever shall be greater.
Of the last suggestion we may observe that in view of the enormous range of tonnage values of the present day from, say, £2 to perhaps £80, a fixed maximum of £8 appears to us particularly indefensible. The spectacle of a tanker worth both before and after a collison approximately £50 per ton doing millions of damage and escaping liability upon payment of £8 per ton on its relatively small tonnage would materially aid the proposition, already advanced in the United States, to wholly abolish shipowners' limitation and put ocean carriers in this regard on a parity with carriers inland.
5. Add to article 8:
In case the sum constituting the extent of liability under this article is more than sufficient to make full compensation to the victims or their representatives, the surplus shall be distributed among
cargo claimants so far as may be necessary to insure that such claimants
shall receive from all sources hereunder their share of a fund equal to £8 per ton,
In case there are no death or personal injury claims the shipowner shall nevertheless be obliged to provide a fund in the same manner and to the same extent, to be disposed of for the benefit of cargo claimants, as hereinbefore in this article provided.
EXHIBIT H.-AVANT-PROJET DE
CONVENTION INTERNATIONALE POUR L'UNIFICATION DE CERTAINES RÈGLES CONCERNANT LA LIMITATION DE LA RESPONSABILITÉ DES PROPRIÉTAIRES DE NAVIRES DE MER.
(Soumis par la sous-commission, 1922.)
Le propriétaire d'un navire de mer n'est responsable que jusqu'à concurrence de la valeur du navire, du fret et des accessoires du navire:
1° Des indemnités dues à des tiers à raison des dommages causés à terre ou sur l'eau, par les faits ou fautes du capitaine, de l'équipage, du pilote ou de toute autre personne au service du navire;
20 Des indemnités dues å raison des dommages causés soit à la cargaison remise au capitaine pour être transportée, soit à tous biens et objets se trouvant à bord;
3° Des obligations résultant des connaissements;
4° Des indemnités dues à raison d'une faute nautique commise dans l'exécution d'un contrat;
5o De l'obligation d'enlever l'épave d'un navire coulé et des obligations s'y rattachant;
6° Des rémunérations d'assistance et de sauvetage;
7° De la part contributive incombant au propriétaire dans les avaries communes;
go Des obligations résultant des contrats passés ou des opérations effectuées par le capitaine en vertu de ses pouvoirs légaux, hors du port d'attache du navire, pour les besoins réels de la conservation du navire ou de la continuation du voyage, pourvu que ces besoins ne proviennent ni de l'insuffisance ni de la défectuosité de l'équipement ou de l'avitaillement au début du voyage.
Toutefois, pour les créances prévues aux nos 1, 2, 3, 4 et 5, la responsabilité visée par les dispositions qui précèdent ne dépassera pas une somme totale de 8 liv. st. par tonneau de jauge du navire.
La limitation de responsabilité édictée par l'article précédent ne s'applique pas:
1° Aux obligations résultant de faits ou fautes du propriétaire du navire;
2o A l'une des obligations dont il s'agit au n° 8 de l'article 1er, lorsque le propriétaire a spécialement autorisé ou ratifié cette obligation;
3o Aux obligations résultant pour le propriétaire de l'engagement de l'équipage et des autres personnes au service du navire.
1 Le protocole de clôture réservera aux Hautes Parties contractantes le droit de ne pas admettre la limitation de la responsabilité à la valeur du navire et du fret pour les dommages occasionnés aux ouvrages d'art des ports, docks et voies navigables, y compris les frais de relèvement de l'épave, ou de ne ratifier le traité sur ces points qu'à charge de réciprocité.