24 THE JOURNAL OF CONATIONAL LAW The fact that the charter party for a voyage by the foreign vessel was made in this country does not make the owner liable for non-performance of the charter after the vessel was requisitioned by her own government while in her home waters. Texas Co. v. Hogarth Shipping Corporation, 41 S. Ct. 612. An order of the Interstate Commerce Commission forbidding transportation of coal for export without a special permit, made for the purpose of insuring a sufficient supply for New England, which cut down the quantity of coal for export by only one-eighth and did not prevent substantially the normal number of vessels from being loaded, does not excuse the charterer's failure to furnish the cargo, which was due rather to the unprecedented demand for export coal which caused the commission's order, and which did not prevent other shippers, who had no permit for transportation, from purchasing coal for their cargoes, at the port. The prohibition of the export of coal by the government excuses, under the restraint of princes clause, the failure of a charterer to furnish the cargo as required by the charter, even though the charterer would have been unable to furnish the cargo in absence of such prohibition. In order that the contingencies specified against in the charter party shall constitute a good defense to a libel for the charterers failure to furnish the cargo, the charterer's performance must have been thereby rendered in a practical sense impossible, illegal, or dangerous; it being insufficient that the happenings of one of them adds materially to the difficulties and embarrassment of the charterer. While the restraint of the princes, which will excuse the charterer's failure to furnish a cargo within the terms of the charter party, need not have been directed against the ship or the goods, but may have had other objects, it must have been the proximate cause of the failure, as distinguished from the remote cause, and if by itself it could not have prevented performance it will not excuse non-performance merely because, in combination with non-excepted causes, it did so. The restraint of princes clause in a charter party will not excuse the charterer's failure to furnish a cargo, where the restraint imposed was on the transportation of the cargo for the ship from the source at which the charterer had planned to obtain it, unless that source was, by the terms of the charter or in the contemplation of the parties at the time it was made, or by the well-established course of trade, the only source from which the charterer could have been expected to get the cargo. Hellenic Transport S. S. Co. v. Archibald McNeil & Sons Co., 273 F. 290. Where the chartered ship reported herself ready to load on June 14, and the loading should have been completed under the charter by June 22, the charterer is not excused for his failure to furnish a cargo for the ship by an order of the Interstate Commerce Commission, restricting transportation of coal for export, which did not become effective until June 24, and did not then apply to coal on cars before that date. An interlined provision in a charter party providing that it was effective, whether permit for cargo granted or not prevents the charterer from defending against liability for failure to furnish the cargo as agreed, on the ground that an order of the Interstate Commerce Commission restricting the transportation of coal to the port for export was a restraint of princes, within an exception in the charter party. Western Counties Shipping Co. v. Archibald McNeil & Sons Co., 273 F. 298. Where an interlineation in the charter party expressly bound the charterer to load the ship at the time specified, whether it had government exporter's license or not, the charterer is liable for the damages resulting from the failure to furnish the cargo, though such failure was caused by an order of the Interstate Commerce Commission restricting the transportation of coal by rail to the port. Compagnes Navigations Sota Y Agnar v. Diamond Fuel Co., 273 F. 299. A charterer is not excused for failure to furnish a cargo of coal as required by the charter party, by an order of the Interstate Commerce Commission giving priority to domestic shipments of coal in stated quantities, which left 70 per cent. of the coal arriving at the port of loading free for export. Canute S. S. Co. v. Diamond Fuel Co., 273 F. 301. An informal charter made orally is a maritime contract, over which a court of admiralty has jurisdiction. American Hawaiian S. S. Co. v. Willfuehr, 274 F. 214. Where a railroad company, which in consideration of shipments to the coast over its line, was accustomed to ascertain from steamship companies whether they could book such shipments and at what clearance and rate, and, if accepted, to send confirmation to its representatives on the coast, who exchanged confirmations with the steamship company, agreed with an exporter, who had failed to get space, "to reserve space for the transportation of, and to transport or to cause to be transported" from San Francisco to Japan, a cargo of pig iron at $15 per ton, and, finding it impossible to secure space directly, booked it through brokers at such rate, which was cheaper than the steamship companies were asking, is not liable for breach of contract on the failure of the brokers to reserve space, the agreement being one of agency, though the railroad failed to disclose to the exporter the steamship with which it had booked the freight; it never having been able to ascertain the identity thereof from the brokers, the exporter having made no objection to booking the freight through brokers, who were not shown to be irresponsible, and there being no denial of an agent's duty to his principal. Baldwin Shipping Co. v. Southern Pacific Co., 274 F. 347. Where, in a charter party prepared by the English agents of the owner though made and to be performed in the United States, the parties have inserted a special provision which is for the benefit of the charterer, so that the contract in fact falls within an English decision, in interpreting the change that decision becomes a particularly persuasive authority. Mazza v. J. G. White Engineering Co., 274 F. 990. An act of God is due to natural causes, without human intervention. Charterer's inability to pass through Panama Canal on closing of canal because of the Culebra slide on canal's bank, did not excuse failure to deliver vessel to owner at required time under provision of charter excepting charterer from liability where such failure was caused by an "act of God" since the closing of the canal in such case was the result, which could have been expected, of a deliberate widening of the canal, which in its entirety was a bold and daring experiment of human activity. Held, such slide is an "accident of canals" within charter party making a charterer not liable for "accident of canals." Gans S. S. Line v. Wilhelmsen, 275 F. 254. Oregon. The state can provide a remedy for a tort happening within its jurisdiction and apply a lien against a foreign vessel through whose fault damages occurred, under United States Constitution art. 3, No. 2, and United States Judicial Code No. 24, as amended by Act of Congress, October 6, 1917, (U. S. Compiled Statutes 1918, U. S. Comp. St. Ann. Supp. 1919, No. 991) (3), and hence could properly enact Oregon Laws Nos. 10281, 10283-10288, 10291. Cordrey v. The Bee, 201 P. 202. Statement of Ownership, Etc. Of The Journal of Conational Law, published quarterly at New York, N. Y., for October 1, 1921, State of New York, County of New York, ss. Before me, a Notary Public, in and for the State and county aforesaid, personally appeared Borris M. Komar, who, having been duly sworn according to law, deposes and says that he is the Editor of The Journal of Conational Law, and that the following is, to the best of his knowledge and belief, a true statement of the ownership, management (and if a daily paper, the circulation), etc., of the aforesaid publication for the date shown in the above caption, required by the Act of August 24, 1912, embodied in section 443, Postal Laws and Regulations, printed on the reverse of this form, to wit: 1. That the names and addresses of the publisher, editor, managing editor, and business managers are: Publisher-The Conational Law Publishing Co., 299 Broadway, New York, N. Y. Editor-Borris M. Komar, 2 Rector Street, New York, N. Y. Borris M. Komar, 2 Rector Street, New York, N. Y. 3. That the known bondholders, mortgagees, and other security holders owning or holding 1 per cent or more of total amount of bonds, mortgages, or other securities are: (none). (Signature of editor, publisher, business manager, or owner.) Borris M. Komar. Sworn to and subscribed before me this first day of October, 1921. Private Rights Under the Treaties of Berlin and Versailles. Despite the fact that the treaty of Berlin restoring friendly relations between the United States and Germany was proclaimed on November 14, 1921, three days after the exchange of ratifications, no decision was taken by the government of either country respecting the private rights affected by the late war and now subject to settlement pursuant to the provisions of the above treaties. It is understood that negotiations are pending at present for the conclusion of a supplementary treaty establishing a Mixt Arbitral Commission for the adjudication of these private rights. The property involved represents assets or claims totalling nearly half a billion dollars, of which American claims, according to the recent announcement of the State Departament, amount to one hundred and fifty million dollars, the rest representing German property in the hands of the United States Alien Property Custodian. It is assumed that although the supplemental treaty now pending may include several modifications it will follow in the main the provisions of the treaty of Versailles so far as applicable to the present state of German-American relations. By Articles 1 and 2 of the treaty of Berlin, the United States ratified Section 1 of Part IV and Parts V, VI, VIII, IX, X, XI, XII, XIV and XV of the treaty of Versailles. Private rights are dealt with in the treaty of Versailles in Part VIII, Section I and Annexes 1 and 2 thereto; Part IX, Article 252 and 253; Part X, Section III and Annex thereto, Section IV and Annex thereto, Section V and Annex thereto, Section VI and Annex thereto and Section VII with Annex. These provisions must be considered in the light of Section 4 of the treaty of Berlin and Section 5 of the Joint Resolution of the Congress approved by the President July 2, 1921. The Versailles treaty provides triple machinery for the settlement of private claims. The Reparation Commission deals with damages caused by direct hostilities; the Clearing Office with debts and the Mixt Arbitral Tribunal has original jurisdiction over damage arising from any other cause whatsover and appellate jurisdiction over debts. However, none of these bodies can be set up between the United States and Germany without an act of Congress, for the treaty of Berlin was ratified expressly on condition "that the United States shall not be represented or participate in any body, agency or commission, nor shall any person represent the United States as a member of any body, agency or commission in which the United States is authorised to participate by this treaty, unless and until an Act of the Congress of the United States shall provide for such representation or participation." Another condition of the ratification was "that the rights and advantages which the United States is entitled to have and enjoy under this treaty embrace the rights and advantages of the nationals of the United States specified in the Joint Resolution or in the provisions of the treaty of Versailles to which this treaty refers". It is difficult to ascertain the precise effect of this latter condition. Taken literally it means that the Government of the United States is entitled not only to the rights and advantages reserved to it as such by the treaty, but also to the rights and advantages reserved by the treaty to American nationals, as distinct from American Govenrment. Doubt exists as to the application of the dates fixed by the treaty of Versailles to the steps to be taken by Americans or Germans in accordance with the future supplemental treaty. By Section 5 of the treaty of Berlin it is provided "that the periods of time to which reference is made in article 440 of the treaty of Versailles shall run with respect to any act or election on the part of the United States, from the date of the coming into force of the present treaty". Article 440 states: "A first proces-verbal of the deposit of ratifications will be drawn up as soon as the treaty has been ratified by Germany on the one hand, and by three of the principal Allied and Associated Powers on the other hand. "From the date of this first proces-verbal the treaty will come into force between the High Contracting Parties who have ratified it. For the determination of all periods of time provided for in the present treaty this date will be the date of the coming into force of the treaty. "In all other respects the treaty will enter into force for each Power at the date of the deposit of its ratification". It is clear that effect of Section 5 of the treaty of Berlin is that "all periods of time provided for in the Versailles treaty" will commence to run as from November 11, 1921, the date upon which the treaty of Berlin came in force. But none of these provisions in any way affects fixed dates as appearing in the treaty of Versailles and these latter must be specifically advanced in the pending supplemental treaty. The treaty of Versailles deals with private rights under several separate heads each dealing with a certain kind of property and providing a machinery not necessarily of the same and one character for the settlement and disposition of these rights. Accordingly, we will consider its provisions under the separate main headings of "Direct war damage". "Indirect war damage", "Debts" and "German seized property" with appropriate subheadings. The references, unless otherwise indicated, will relate to the treaty of Versailles. Only such parts of sections or articles are given as relate to private rights, and are applicable to the nationals of the United States. I. DIRECT WAR DAMAGE. A. Reparation (Part VIII, Sec. 1 and Ann. 1). The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies. Article 232. The Allied and Associated Governments recognize that the resources of Germany are not adequate, after taking into account permanent diminutions of such resources which will result from other provisions of the present treaty, to make complete reparation for all such loss and damage. The Allied and Associated Governments, however, require, and Germany undertakes, that she will make compensation for all damage done to the civilian population of the Allied and Associated Powers and to their property during the period of the belligerency of each as an Allied or Associated Power against Germany (a) by such agression by land, by sea and from the air, and in general all damage as defined in Annex 1 hereto. (a) Consequently, loss and damage suffered by American civilians and their property prior to April 6, 1917 are excluded. The exclusion will cover our claims arising from the submarine warfare, such as the sinking of Lusitania, Falaba etc. comprising the major part of the war losses born by Americans. Annex 1. Compensation may be claimed from Germany under Article 232 above in respect of the total damage under the following categories: (1) Damage to injured persons and to surviving dependents by personal injury to or death of civilians caused by acts of war, including bombardments or other attacks on land, or sea, or from the air, and all direct consequences thereof, and all operations of war by the two groups of belligerents wherever arising. (2) Damage caused by Germany or her allies to civilian victims by acts of cruelty, violence or maltreatment (including injuries to life or health as a consequence of imprisonment, deportation internment or evacuation, of exposure at sea or of being forced to labor), wherever arising, and to the surviving dependents of such victims. (3) Damage caused by Germany or her allies in their own territory or in occupied or invaded territory to civilian victims by all acts injurious to health or capacity to work, or to honor, as well as to the surviving dependents of such victims. (4) Damage caused by any kind of maltreatment of prisoners of war. (b). (8) Damage caused to civilians by being forced by Germany or her allies to labor without just remuneration. (9) Damage in respect to all property wherever situated belonging to any Allied or Associated States or their nationals, with the exception of naval and military works or materials, which has been carried off, seized, injured or destroyed by the acts of Germany or her allies on land, on sea or from the air, or damage directly in consequence of hostilities or of any operations of war. (10) Damage in the from of levies, fines or other similar exactions imposed by Germany or her allies upon the civilian population. Article 233. The amount of the above damage for which compensation is to be made by Germany shall be determined by an Inter-Allied Commission, to be called the Reparation Commission and constituted in the form and with the powers set forth hereunder and in Annexes II to VII inclusive hereto. The findings of the Commission as to the amount of damage defined as above shall be concluded and notified to the German Government on or before May 1, 1921, as representing the extent of that Government's obligations. (b) An important provision not only in the case of civilians, but also in the case of military or naval prisoners in those instances where the compensation provided in the statutes of their own countries for the injuries to health caused by war service is inadequate for that purpose. |