« AnteriorContinuar »
an ingenious fabric and will remain a most important landmark in the history of Chinese law-making. It is a remarkable example of the dexterous handling which the present Chinese legislators attempt to apply to their remedial measures. If the foreign consuls in China continue to respect the law both in spirit and in letter, it will surely prove beneficial to the relations between China and the outer world.
BOARD OF EDITORS OF THE AMERICAN JOURNAL
OF INTERNATIONAL LAW
CHARLES NOBLE GREGORY, State University of Iowa.
Editor in Chief
JAMES BROWN SCOTT, George Washington University.
GEORGE A. FINCH, P. O. Box 226, Washington, D. C.
THE THIRD INTERNATIONAL CONFERENCE ON MARITIME LAW
The Third International Conference on Maritime Law met at Brussels on September 28, 1909, and adjourned October 8, to meet again next April. Germany, Argentina, Austria, Hungary, Belgium, Brazil, Chili, Cuba, Denmark, Spain, France, Great Britain, Greece, Italy, Japan, Mexico, Nicaragua, Norway, Holland, Portugal, Russia, Sweden, and the United States were the participating nations, with a total membership of sixty-two delegates. The object of the Conference was chiefly to secure uniformity of law upon four subjects: collisions, salvage, liability of ship owners, and liens; tentative conventions as to the first two, and projects as to the last two were adopted.'
1 See SUPPLEMENT to this JOURNAL, pp. 115-126.
The convention upon collisions contains eighteen articles; the first three of which make substantially no change in the present law. The fourth article is, however, the most important of this convention. Ity first paragraph prescribes that in cases of mutual fault, the liability of each vessel shall be in proportion to the gravity of the fault or the degree of the negligence occasioning the collision and consequent injury; but that if this proportion can not be ascertained the liability shall be borne equally. The law of England and America, the judicium rusticum, now makes equal division of liability and damage, and the change effected by this article affords a flexible rule of apportionment. The admiralty rule, as harsh as it is, modifies the still harsher rule of the common law forbidding apportionment of liability and damage among joint tort-feasors. If the adjudication of an equal proportion of liability be an advance in the administration of justice, manifestly the establishment of an unequal proportion commensurate with the degree of fault is a further extension of the just principle. The old rule is based upon the impracticability of ascertaining a nicer proportion than a half liability; but it is apparent that if the court is competent to make a proportion of one to one, it can as easily make a proportion of one to two, or of one to three, or of one to four; indeed, in many cases it is less difficult to ascertain the latter. If the court is competent to fix any liability, it should, in the nature of things, be able to find the proportion of that liability. The rule of the fourth article has long been the law of the continental countries, and their courts seem to have had no difficulty in its application; and it has long been quite common for ship owners to make with ease settlements in pais upon a basis of unequal proportion. But the article safeguards all contingencies by providing that in the event the court can not ascertain the precise degree or proportion of fault, then the half-and-half rule shall obtain.
The residue of this interesting article deals with the rights and remedies of third persons against ships mutually at fault in a collision. Generally speaking, it provides that each ship is liable in proportion to its degree of fault, but the recovery must be “without solidarity," that is, without right of recovery of the whole damage from either vessel. For example, an injured cargo owner can recover from the non-carrying vessel only the proportional liability of that particular vessel, it not being liable for the fault of the other vessel, thus further modifying the common-law doctrine of joint and several liability among several tortfeasors, as well as changing the judicial construction of the Act of Con
gress of 1893, known as the “Harter Act,” which relieves the carrying vessel from all damage to the cargo resulting from faults or errors in navigation or management. By this act the cargo owner can only recover from the non-carrying ship; but under the decisions of our courts this ship can recover its proportion from the carrying ship. Thus, if the carrying ship is wholly at fault, it pays nothing; but, if it be partially at fault, it pays to the non-carrying vessel for the cargo owner one-half damage, which the cargo owner could not recover by direct proceedings (The Chattahoochee, 173 L'. S. 510). This rather anomalous situation will, as suggested, be remedied by this article, which substanțially squares with the law of the leading nations.
Another paragraph of this article makes an exception to the inhibition of an in solido recovery, with accompanying right of contribution, in all cases of personal injuries or of death resulting therefrom, and leaves to the several national legislatures the subject of contract-limitation upon the right of contribution. This special feature might profitably find comprehensive confirmation and extension by Congress in an enactment of the principles of Lord Campbell's Act; thus wisely evidencing a more tender regard for human life.
The fifth article prescribes liability in cases of collision caused by the fault of the pilot, though his employment be compulsory. This is now the American but not the English rule.
The second paragraph of the sixth article abolishes all legal presumptions of negligence or fault in fixing the responsibility for collisions The change opens quite a field for technical discussion. It would seem that any material modification of the law or rules of presumptions is inadvisable, especially as respects the United States, for it might seriously affect some of the essential features of our admiralty administration But a protocol could easily be devised which would fully protect our nation. It should be suggested that many nations suffer embarrassing inconveniences resulting from legal presumptions that do not apply to the United States, which inconveniences or hardships are sought to be reached by this paragraph.
The seventh article contains a prescription of two years within which suits for collisions may be brought, but suits for contribution under the fourth article must be instituted within one year. While this paragraph is not wholly satisfactory by reason of certain indefinite suspensions of the limitation, it is, nevertheless, a desirable gain in uniformity.
The remaining ten articles of this convention are mainly formal, and an explanation of them is precluded by the limits of this comment.
The nineteen articles upon salvage do not make any radical changes in the law of the United States upon this subject.
The fifth article provides remuneration, notwithstanding the salving and salved vessels belonging to the same owner. For example, the officers and crew of the “Mauretania ” could recover for their services in salving the “Lusitania.” It has been objected to this paragraph that the identity of ownership of vessels and of employment of crews would render difficult the administration of appropriate procedure; but it is doubtful if this objection has merit if the right of salvage is clearly defined; for the remuneration must come to the master and crew regardless of the sameness of the employer or owner. Upon principle the convention is manifestly just.
The second paragraph of the seventh article authorizes the court to annul and modify any salvage contract which the judge may regard as allowing remuneration excessively out of proportion to the services rendered. The provision rather reverts to the original basis of salvage, which in its genesis had no contractual source. Upon principle, there seems to be no difference between a salvage contract and any other. Fraud, duress and inequality will vitiate any contract, and if the revision applied only to cases of equitable intervention, especially to contracts made in great hurry and great danger, thereby necessarily involving inequality of negotiation, which seems provided for in the first paragiaph of this article, no criticism could be made of the extension of the rule; but to give this power to a court in cases of equality of contractors, and in circumstances of deliberation, merely because the remuneration is excessive, is rather of doubtful expediency, though, of course, the convention should not be rejected for this reason.
The second paragraph of the ninth article seems to give rights to salvors of human lives intervening in cases of common danger not within the present rules. This right, however, is in the interest of humanity and is desirable.
The tenth article provides the same period of prescription in actions of salvage as in actions of collisions; and the comments heretofore made can here be considered repeated.
The remaining articles are either of formal nature or do not substantially change the existing laws upon this subject.
The projets upon the subject of limitation of the ship owner's liability, and maritime liens, are, as suggested, rather “studies” to be submitted to the several governments for consideration and advices. Therefore, comments upon them at this time would be premature.