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SESSION OF APRIL 11, 1890. Mr. COOLIDGE. Before accepting the minutes, I wish to ask what the delegates mean by the words “fuerzu mayor.” The term does not exist in common law. It is entirely a civil law term. It does not exist in any statute of our country, and I am anxious to know what is meant by those words. According to Bouvier's Law Dictionary, it is a term used in civil law which means nearly the same as "act of God.” Now, when I turn to the Law Dictionary to find what “act of God” means, I find that it is an accident arising from a cause without interference or aid from man. Now, I want to ask the gentlemen if that is the meaning of the words “fuerza mayor” in their understanding. To make myself more clear, I would like to know whether, under the meaning of these words, a privateer escaping from a vessel could come into a port under “fuerza mayor." I merely rise to ask for information. I want the gentlemen to explain to us what that word means in the civil law.
Mr. HURTADO. Although there are here persons much more competent than I to give an explanation of the meaning of the phrase "fuerza mayor,” nevertheless, as I was the author of the amendment, I find myself compelled to make a reply, but at the same time I appeal to the lawyers we have in the Conference to rectify any erroneous conception which, as a layman, I may express.
By "fuerza mayor" I think is meant all influences of an irresistible nature, and if this definition be applied to the special case under discussion, that is to say, to the case of a vessel compelled to enter a port deviating from its course, it may be said that
they are those influences expressed in the original report, to wit, damages caused by stress of weather or others that might compel a vessel to seek a harbor of refuge, such as want of provisions, death of the captain, contagious disease on shipboard, or other like causes.
The delegate from the United States who has propounded the question asks if a vessel finding itself pursued by a privateer should enter a port would it be considered as compelled so to do by “fuerza mayor" in the sense here expressed.
In truth, sir, I do not expect we shall have any more privateers; to-day the plan of arbitration has been presented, and I hope there will be peace, and that we shall not have to consider these questions at any time; but at any rate the example put might be a case coming up in practice, and therefore the honorable delegate from the United States asks if what in English is known as “act of God” should be understood as “fuerza mayor.”
I understand that in English “ act of God” means those acts which depend entirely upon physical laws, those generally attributed to the action of Providence, such as a temptest, lightning, a storm, etc.—all these would be called “acts of God," but, for instance, the want or lack of provisions would not be considered an “ act of God,” for this evidently would be due to the lack of foresight of the party causing it or obliging the vessel to enter the port. Therefore the phrase fuerza mayor is more ample, more extensive than “act of God."
If the honorable delegate from the United States finds that the words force majeure are not English, which I leave to the more perfect knowledge he must have of the language, then, he is right; but I believe that the phrase force majeure can be used and is used in English, and I have certainly seen it in writing many times.
This is all I can say upon the point, and I shall desist, as I have stated before, so that persons more competent than I may discuss the true and exact meaning of the phrase fuerza mayor, or search for another which shall better express the idea.
Mr. Alfonso. At yesterday's session when the honorable delegate from Colombia offered the amendment which included the phrase fuerza mayor, for my part I had no objection in accepting it, since, according to Chilian legislation the meaning of this phrase leaves no room for doubt. I remember that that legislation uses the words caso fortuito (unforeseen emergency) and fuerza mayor, and everybody understands them as synonymous in law. Caso fortuito or fuerza mayor are defined in our law as follows: “Is that which can not be foreseen and which it is impossible to prevent."
I think, Mr. President, that the explanation which the Hon. Mr. Coolidge had the right to ask, having been requested, the phrase might be laid down as having this meaning: “Fuerza mayor is that which can not be foreseen nor prevented.”
I think that this is more or less the sense which all legislation coming from the Latin and afterwards from the French gives to these words. Regarding all the jurisconsults or publicists that may be consulted upon this subject, I think the sense they attribute to these words is more or less that which I
have quoted, and in this sense I think the plan approved by the Conference should be understood.
Mr. HURTADO. The honorable delegate from the United States has put the case of a vessel entering a port pursued by a privateer, and asks if it would enter because of fuerza mayor, and, in consequence, be exempt from the payment of dues ? Mr. Alfonso will be good enough to explain this point with his acknowledged ability.
Mr. Alfonso. Actually it would be a true case of fuerza mayor, legally it would not, because this law applies only to ordinary cases where there is no breach of law, and certainly not to those where an infraction of law incurs a legal penalty, as would the incendiary, the pirate, or the assassin, who, committing a criminal act, would place themselves in the way of suffering a penalty.
As regards every illegal act, fuerza mayor is evidently not something serving as a safeguard or a preventive of punishment.
Mr. Hurtado. But we speak of a lawful privateer
Mr. Alfonso. Then this privateer would come under the head of fuerza mayor. A slight correction, Mr. President, for I was confused with the question of the privateer. I thought that the case of the privateer was an illegal one, but being legal, naturally I would include it in the general rule. The same would happen, for instance, when, because of a naval engagement one of the contending vessels should seek refuge in a port, that vessel would enter port driven by overwhelming force and therefore would come under fuerza mayor—it was compelled to take this step regardless of the question whether neu
trality would be infringed or not. But, I repeat, I make a difference between a legal and an illegal act. If the privateer does a legal act taking refuge in the port it is evidently compelled by fuerza mayor.
Mr. GUZMAN. I understand this whole question originated in the words fuerza mayor, and as they have given rise to this debate it would be better to suppress them, since both the Spanish and English legislation offer many phrases to express this idea. I see no reason for limiting ourselves to that expression which some delegates think does not express enough and others that it expresses too much. For this reason I believe that by substituting for this phrase another, the resolution would become more definite.
Mr. HURTADO. Will the honorable delegate have the goodness to substitute a word?
Mr. Guzman. I am not competent to do it, but having so many learned men here in this Conference I am sure some one can do it for me.
Mr. MENDONÇA. I was just saying that, as a member of the committee, I thought it was proper to give my opinion about the matter. I think the words fuerza mayor, if they do not correspond exactly in common English law to our definition in Latin law or civil law, you could do what you do in other cases where there is no correspondence in the common law with the civil law. You have to adopt an explana tion or definition in the Latin law or civil law. All the authorities give the definition that our colleague from Chili has just given. That is the definition of the law, and I think that is the interpretation given to the word by all Latin nations. But to avoid that and use words easily understood by every one, I pro