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Or is there no joint responsibility, and is the cargo of each vessel only to recover from the other vessel in the same proportion as the ship in which it is laden ?
In favour of the first system it was said that according to common law the victim of the combined fault of both parties may attack them both for the whole, and it was asked why this principle should not be applied to maritime matters.
It was added that one cannot expect the cargo to prove that one of the vessels was to blame for two-thirds and the other for one-third.
This opinion was upheld by Mr. Sieveking and the members from Hamburg. Messrs. MacArthur for England, Autran for France, Asser for Holland, and the present writer for Belgium were against this view of the matter, saying substantially : Once the share of responsibility of each vessel has been decided, it cannot be condemned to pay more. On the other side it was argued, that the vessel which has paid more than its share for the cargo can obtain redress from the other vessel for this excess. But this system would lead to very serious complications by reason of the clauses of exoneration in the bills of lading, and of the principles of limitation of liability.
For instance, the damaged cargo is on board the vessel A. This vessel is protected by a clause of exoneration for negligence. The cargo, therefore, claims from B, and according to the system of joint and several responsibility, claims the whole of the damage, although B is only responsible for, say, one quarter. B having therefore paid three-quarters too much, claims a contribution of three-quarters from A. What is to be done now?
If it is said that by reason of the clause of exoneration in the bill of lading of A, A owes nothing, then in spite of the rule of proportion, B has to pay for all the damage to the cargo of A, which is unfair. If, on the contrary, B can obtain
redress from A, then A has, in a roundabout way, to pay for the damage to its cargo, although the latter has renounced this claim.
After a very interesting debate, a compromise was proposed by the German delegates, who would be satisfied to have the principle admitted that it should be sufficient, when
claims from one vessel, to prove that this vessel was to blame, and if this vessel alleges that the other vessel is also to blame, then the onus of proof of the fact would be in the former vessel.
Mr. Carver replied that in England this would be the case.
Nevertheless, on the suggestion of Professor Lyon-Caen of Paris, it was deemed advisable to continue the discussion on this subject at the next sitting.
Subject to this reserve the principle of proportionate assessment in case of “both to blame was accepted unanimously in the following terms proposed by Mr. MacArthur :
“Where both ships are to blame for a collision, the total damage to persons and cargo should be apportioned between the ships, having regard to the degree of fault. This rule does not affect the liability of the carrying ship to her cargo under her contract.”
6. Tug and Tow. In this matter the various countries disagreed. Belgium and France consider that the tug and the tow must each be responsible for their own faults, but in no case for each other's. In other words, they do not allow that the tug is juridically the servant of the tow, and they maintain strongly that if for instance the accident is due to a defect in the machinery of the tug, or to a sudden maneuvre on her part, which the tow could not prevent, the latter should not be responsible.
England, Germany, Holland, and the Scandinavian countries, on the other hand, consider that the tow employs the tug for its use, and consequently at its own risk.
One sees here, again, an argument, which does not seem to have been borrowed from the common law, and which consists in basing the responsibility of the ship-owner, not on the choice he makes of his servants, or on the authority he has, but solely on the fact that he is the man who undertakes the whole adventure, and that therefore he must sustain the risks. This latter opinion prevailed.
7. Interest on Damages.-It was admitted, after a short exchange of views, that it was not possible to enter into details, and that it should be sufficient to claim complete compensation according to common law.
8. Protests and Limitations of Rights of Action.—A great progress in practice would be realized, if the principle approved by the Conference with regard to these matters were made law in all countries. There remain, howeyer, a great number of countries, notably Belgium and nearly all the States of the Mediterranean, where, in case of collision, a law-suit is lost if the captain does not make complaint within twentyfour hours, and if he does not prosecute his claim within the month. This is a great difficulty in the path of procedure.
The Conference was unanimous in proposing the suppression of these formalities, and stated that the system which is followed in England and the United States and also in France, is much to be preferred.
9. Prescription.—As regards prescription, all the countries were unanimous in fixing it at two years. The English delegates stated that they had not adopted a fixed delay, and left it to the Court to say in each case if it had been presented with due diligence, and Mr. Douglas Owen pointed out that in some cases the delay of two years might be too short. It was answered that the law now in force in England placed British ship-owners in a very unfavourable position. They cannot sue on the Continent after two or three years, whereas in England they are liable to be sued for many years. Besides, it is in the interests of commerce that law-suits
of this kind should be settled rapidly and done with. All that can result from this very practical reform is that, if the vessel which is responsible for the accident cannot be arrested in the British jurisdiction, one would have to apply to the Foreign Courts. But this holds also good for foreign ship-owners who in the same circumstances would have to apply and do apply to the English Courts.
The principle of a prescription in two ycars was therefore voted unanimously, but it was understood that it would be further considered at the next sitting if it was necessary to provide exceptions to the rule.
The above are the resolutions on which the votes were practically unanimous.
It is always possible to decide questions by means of a majority, but the influence of such votes depends upon whether the question is ripe, especially when the minority is important. We believe, therefore, that the Conference has acted wisely in reserving certain resolutions, although there has been a debate on each of them.
The following are the questions which remained open :-
1. Is it necessary to make exceptions to the rule settled in cases of towing ?
2. Is there any reason for making exceptions to the rule settled relating to prescription, and to make a special rule for cases of interruption and suspension of prescription ?
3. In cases of collision where both ships are to blame, should the owners of the cargo and other third parties be able to claim against the two vessels concerned jointly ?
4. Is it necessary in cases of accident to settle the jurisdiction—(1) as regards measures which are provisional or for the preservation of the rights of the parties; (2) as regards the merits of the case ?
Responsibility of Ship-owners.-Should the responsibility of the ship-owner be a personal liability, and, if so, should it be
limited, and to what amount? Or should the liability be limited to the vessel, including the freight and all rights of the owner in the vessel after the accident ?
This last question is of the utmost importance. The opinion of the present writer is that it is not inseparable from the questions relating to collisions; that there may, in fact, be agreement on the principles of responsibility, and yet difference as to the degree in which these rules shall affect the property of the ship-owner. But it is certain that a settlement is much to be desired, for it is undesirable to see English ship-owners treated more harshly in this respect than their colleagues on the Continent and in the United States. There is no doubt that the difference in treatment is favourable to the latter. This difference shows itself in two ways: (1) The English ship-owner has always to pay £8 per ton, and may have to pay up to £15 where there are personal injuries, whereas the foreign ship-owner has only to pay up to the value of his vessel ; if, therefore, the English vessel is worth less than £8 or £15, the result is very unfavourable to the British owner. In these cases a great proportion of the vessels are not worth this sum. (2) The Continental ship-owner, being held liable only up to the value of his vessel and the freight—that is to say, his “fortune at sea practically pays nothing if his vessel is lost in the collision, as very often happens.
I do not wish to discuss these two solutions. It is said, in defence of the English system, that it is unfair that, in case the vessel goes down, the injured parties should be unable to recover, and that it is better to maintain a rule of personal liability at sea as on land. It is said, in defence of the Continental system, (1) that there is nothing unfair in limiting the liability of the owner to the vessel and the freight, so that he knows in each voyage how much he risks; (2) that the figures £8 and £15 are altogether arbitrary, and that no others can be given which would be always fair ; (3) that the