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countries. These associations are composed of leading shipowners, underwriters, lawyers, and merchants. They are permanent; their object is to work towards the unification of maritime law.
These national associations or committees, which form the basis and distinctive feature of the work, present at the present moment a considerable weight of opinion. The plan on which they have been formed is not everywhere the same. In Germany and in Belgium numerous associations have been formed (over 200 members in Belgium and over 500 in Germany), and these associations consist of all those who have any considerable interest or an important position in the maritime world. The German association has as its president Mr. Sieveking, President of the Hanseatic Court; the Belgian association has as president the Minister of State, Mr. Beernaert, President of the Chamber of Representatives. In other countries committees have been formed, which, though less numerous, yet represent, by the position of their members, the opinion of the maritime community. Such is the case notably in Holland and in France. In the latter country the number of the members has been fixed at 50, and the lists contain all the most important names in shipowning and underwriting circles.
Lastly, in England Sir Richard Webster suggested, in 1897, at the time of the first Conference of the International Maritime Committee, that the International Law Association should constitute in England a special Maritime Committee, to enter into relations with the International Committee. This was done under the name of “ The Maritime Law Committee" of the International Law Association.
The organization which we have just described may appear a little complex, but experience has already shown that it works easily, and that its apparent complexity is only a natural result of the situation in different states.
The following is the mode of procedure. In June, 1897, a
first conference was held at Brussels. There the members present only chose the questions to be discussed in the first instance. This choice was very important, for it was understood from the beginning that the questions should not be numerous, but should be of an immediate practical interest.
The questions chosen were “Collisions," and, at the request of the English delegates, “The limitation of the responsibility of ship-owners.” These two matters were divided into eleven questions, and the different associations and national committees were invited to discuss these and to formulate answers. They all carried out this desire, so that when the Antwerp Conference met, everything had been prepared by thorough discussions in the different countries. The national groups were represented at the Conference by members or special delegates.
The English members were : Messrs. Chas. MacArthur, M.P., T. G. Carver, Q.C., John Glover, Douglas Owen, and Thos. R. Miller.
The Conference received the greatest attention from the Belgian authorities. On the first day the inaugural meeting took place in the Town Hall, where the Burgomaster of Antwerp and the Minister of Justice welcomed the members. At the end of the Conference, they were received by His Majesty the King at the Palace in Brussels, and every member was individually presented to him.
The debates, under the presidency of the Minister of State, Mr. Beernaert, were very interesting. From the first it was seen that there was a strong desire to arrive at an agreement. And on a great number of points the replies of national associations were alike. This as a first result is very important. It is not uncommon to hear members of congresses express conciliatory sentiments, which do not meet with the approval of their countrymen at home ; but these opinions were the result of independent discussions which had previously taken
place in the various countries amongst those directly interested.
We may say that if maritime legislation were uniform on those points on which this agreement has been shown, a great progress would have been achieved. These points are as follows:
1. Inevitable Accident.-Nothing seems more natural than to leave the damage where it falls when the accident is inevitable. Certain countries, however, deviate from this rule when one of the vessels is stationary. In these cases the vessel which is under way must pay half the damage, and sometimes even the cargo contributes. These anomalies occur in maritime countries of the importance of Holland and Russia.
At the Antwerp Conference, the Dutch delegates agreed with the association that there was no reason to keep up this exception, and the vote of the Conference on this point was unanimous.
2. Inscrutable Fault. It is an universal rule that the claimant must prove the basis of his case. If he does not succeed in convincing the judge, the claimant must lose his case. Nevertheless, a great number of legislations do not apply this rule in cases of collision at sea, and if the case remains in doubt, they decide that each party shall bear half the loss.
On this point also all were agreed, and it was unanimously decided that cases of inscrutable fault ought to be treated in the same manner as cases of inevitable accident.
The countries which would have to alter their legislations in consequence of this resolution, are France, Holland, and several of the South American States.
3. One Ship to blame.—On this question, which was merely put that all cases should be provided for, the replies could only be uniform. The party which alone is to blame must bear all the loss.
4. Compulsory Pilotage.-A much more lively and most
interesting discussion arose on the question of compulsory pilotage.
As matters stand, the English and German legislations admit that the ship-owner is not responsible for the fault of a compulsory pilot. On this question the English committee replied that there was no reason to maintain this exemption from responsibility. The same answer was given by Germany. But in France opinion was divided, and a majority of the French association desired an exemption which they have not at present. Hence a most interesting discussion, in which the system of the responsibility of the ship-owner was upheld, notably by Mr. Carver, Q.C., Mr. Laeisz, ship-owner and president of the Chamber of Commerce of Hamburg, by Mr. Sieveking, and by the present writer ; whilst M. Marais (Rouen), M. Loder (Rotterdam), and M. Autran (Marseilles) were against it.
The chief argument for exemption is that the pilot, being appointed by the authorities, is not the servant of the shipowner. But it was answered that if you exempt the ship: owner from this responsibility, you put upon innocent third parties the liability for accidents which are caused by the fault of the pilot. This, however, is manifestly unjust, for if pilotage were free, it would be the ship-owner's own risk if he had on board an incompetent or careless pilot. Besides, the intervention of the authorities in the selection of the pilots must raise their average quality, and any arrangement which diminishes the risks of the ship-owners cannot be a reason for suppressing their responsibility.
It was added that the pilot should only be an adviser, and that it is not advisable that the captain should be able, in any circumstances, to abandon the supreme control of the vessel. He must remain the master. Whilst, therefore, it is possible that in practice and to facilitate the navigation of the ship he lets the pilot give orders, it must be under his own responsibility.
This latter solution was finally accepted almost unanimously. All the English delegates voted in this sense, as did also the delegates from Germany, Norway, Denmark, and Belgium. The majority of the Dutch group were also favourable, and in France there was a majority of one against. Finally, however, those who had voted against the resolution declared that they would join the majority.
5. Both Ships to blame.—Here we touch one of the most important conflicts. A great number of collisions are really due to the fault of both captains, but in most cases the degree of fault is very unequal. In this case the English judge must nevertheless condemn both to bear an equal part of the damages. The German and Dutch judges must be more severe still, and afford no redress whatever. In a great number of countries, however, the judge may divide the indemnity in proportion to the degree of fault. And this principle was accepted unanimously. It is well known that the majority of competent judges in England have declared themselves in favour of this change in the English law, which is on the face of it very equitable. The only objection which was raised, was the difficulty of the judge deciding the proportion of fault. But this must be recognized as a question of practice. Besides, the rule of proportion has existed in France, Belgium, and Norway for many years, and the judge finds no difficulty in this division. It is not a question of a problem in algebra, but simply of common sense. The allowed proportions are not to exceed the quarter or the fifth. It was also supposed that this system would give rise to more appeals, but experience again goes to prove the contrary.
One question alone relating to "both to blame ” was not decided. It refers to the rights of the cargo and of the relatives of those who lose their lives. Are they to be allowed to proceed against both vessels jointly, allowing the vessel which has paid more than its share to obtain redress against the other vessel ?