belongs to one of the contracting States, and in any other cases for which the national laws provide. Provided always, that: 1. As regards persons interested who belong to a noncontracting State the application of said provisions may be made subject by each of the contracting States to the condition of reciprocity. 2. Where all the persons interested belong to the same State as the court trying the case, the provisions of the national law and not of the convention are applicable. 3. Without prejudice to any wider provisions of any national laws, article 11 only applies as between vessels belonging to the States of the high contracting parties. ARTICLE 16. Any one of the high contracting parties shall have the right three years after this convention comes into force to call for a fresh conference with a view to seeking such ameliorations as may be brought therein, and particularly with a view to extending, if possible, the sphere of its application. Any power exercising this right must notify its intention to the other powers, through the Belgian Government, which will see to the convening of the conference within six months. ARTICLE 17. States which have not signed the convention are allowed to adhere to it on request. Such adhesion shall be notified through the diplomatic channel to the Belgian Government and by the latter to each of the other Governments. It shall become effective one month after the sending of the notification by the Belgian Government. The convention shall be ratified. ARTICLE 18. After an interval of at most one year from the day on which the convention is signed, the Belgian Government shall place itself in communication with the Governments of the high contracting parties which have declared themselves prepared to ratify the convention with a view to deciding whether it is expedient to put into force. The ratifications shall, if so decided, be deposited forthwith at Brussels, and the convention shall come into force a month afterwards. The protocol shall remain open another year in favor of the States represented at the Brussels Conference. After this interval they can only adhere to it on conforming to the provisions of article 17. ARTICLE 19. In the case of one or other of the high contracting parties denouncing this convention, such denunciation should not take effect until a year after the day on which it has been notified to the Belgian Government, and the convention would remain in force as between the other contracting parties. In witness whereof the plenipotentiaries of the respective high contracting parties have signed this convention and have affixed their seals thereto. Done at Brussels, in a single copy, the 23d September, 1910. File No. 585.7A2/266. The American delegates to the Third International Conference on Maritime Law to the Secretary of State. NEW YORK, February 25, 1911. SIR: I have the honor to send herewith the report of the American delegates to the Third International Conference on Maritime Law with respect to the Convention on the Law of Collisions. This is in lieu of our original report with regard to this convention and that with respect to the law on salvage, which was submitted November This letter was evidently written four days before the signing of the report (inclosure below) was completed, on the 29th. Not printed. 5, 1910. At the request of the Department we have now made separate reports with regard to these two conventions. We submitted that as to the law of salvage a few days ago. I am [etc.], CHARLES C. BURLINGHAM. [Inclosure.] REPORT OF THE AMERICAN DELEGATION ON THE CONVENTION RELATING TO COLLISIONS. To the honorable the SECRETARY OF STATE: The delegates of the United States designated to attend the reconvening of the Third International Conference on Maritime Law at Brussels on September 12, 1910, have the honor to report: In accordance with our instructions from the Department of State, we attended and participated in the sessions and deliberations of the reconvened conference, which were attended by the representatives of 26 nations. Mr. Gaston de Leval, the Belgian advocate who assisted us at the last session, again gave us valuable aid as counsel. At the opening of the conference we stated that we were authorized to sign the convention relating to collisions, with certain reservations. Later we presented to the conference certain observations relating to the proposed convention on collisions, a translation of which observations is attached to this report, marked Appendix B. Subsequently we made a formal statement of the reservations subject to which we were prepared to sign the conventions. These reservations are as follows: The delegates of the United States of America to the International Conference on Maritime Law deem it their duty to demand that entry be made in the protocol relating to the international conventions for the unification of certain rules in the matter of collisions, that said delegates sign said convention in the name of the United States only under the following reservations: 1. The provisions of article 4 of said convention shall not affect the operation or enforcement of the act of Congress entitled "An act relating to navigation of vessels," etc., approved February 13, 1893, commonly known as the Harter Act. 2. The provisions of articles 1 and 4 of said convention shall not create in the United States a right of action for damages caused by death until such provisions shall have been supported by appropriate action of the Congress of the United States. 3. The provisions of article 6 of said convention shall not in any way affect legal presumptions created by the laws of the United States. 4. The provisions of said convention with respect to fault and damages, as well as remedies, shall be applicable in the United States only in the courts of admiralty and maritime jurisdiction. On September 23, 1910, we signed the convention, subject to the foregoing reservations and subject also to the reservation which we made with regard to the convention on salvage, as follows: The Government of the United States of America declares that it reserves the right to adhere to said conventions and to denounce them for the insular possessions of the United States of America. Annexed hereto is a translation of the convention, which is identical with that adopted by the British delegates. No official translation of the convention was made or authorized by the conference. The most important change in our law made by the convention on collisions is the substitution of several liability in proportion to the gravity of fault for joint liability to be shared equally by the tort feasors as between themselves. Article 4 provides that If two or more vessels are in fault, the liability of each vessel is in proportion to the degree of the faults respectively committed, provided that, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or, if it appears that the faults are equal, the liability is apportioned equally. This article provides further that damages caused to cargoes or property of crews, passengers, or other persons on board a vessel are to be borne by the vessels in fault "in the above proportions." In cases of mutual fault our courts of admiralty divide the damages arbitrarily in equal parts, the vessel slightly at fault and the vessel grossly at fault bearing the same burden. The translation printed below contains some modifications recommended by Mr. Martin, one of the translators of the Department of State. In our report to the Secretary of State of the proceedings of the conference in 1909 we stated at length our reasons for recommending the adoption of a provision which apportions responsibility according to the degree of liability. We were convinced that proportional liability was not only more rational than our present rule, but was also thoroughly practicable. We expressly limited the effect of the new rule, however, so that it should be applied in the United States not in the common law courts, but only in courts of admiralty and maritime jurisdiction. The extension of the rule of proportional liability to cargo damage undoubtedly limits the existing rights of cargo owners, who, under our present law in case of a collision due to the fault of two vessels, may recover the whole of their damages from the noncarrying vessel even though the carrying vessel is protected from liability by the Harter Act. Cargo owners are thus able to take advantage of an anomalous situation. If a cargo is lost or damaged through a collision resulting from a fault or error in navigation or in the management of a carrying vessel, the owner of which has used due diligence to make her seaworthy, the Harter Act deprives the cargo owner of any remedy. If the loss results from the negligence of the carrying vessel, combined with the negligence of a noncarrying vessel, the cargo owner may collect his whole damage from the noncarrying vessel, which pays not only for its own negligence, but for that of the carrying vessel, obtaining, however, under the decisions of the Supreme Court, notwithstanding the Harter Act, contribution from the carrier. The result is that if a carrying vessel does all the damage it pays nothing; if it does part of the damage it pays one-half. As the Harter Act, which we assume defines the policy of the United States, relieves shipowners from direct responsibility for injury to cargo, it seems logical that shopowners should be relieved from indirect responsibility. Doubt having arisen as to the effect of articles 4 and 10 of the convention on the Harter Act, we made the reservation numbered 1. It was impossible to preserve the rule of our courts making the noncarrying vessel liable in the first instance for the whole amount of the damage caused by the cargo. Such a rule would contravene the underlying principles of the convention. The second reservation, which provides that "Articles 1 and 4 of the convention shall not create in the United States a right of action for damages caused by death until such provision shall have been supplemented by appropriate action of the Congress of the United States," was necessary, as Congress has not yet legislated on this subject, and we deemed it our duty not to seek to establish a remedy by treaty when the matter was already before Congress for action. The third provision, with regard to presumptions created by the laws of the United States, is not of great importance, as there are few statutory or other legal presumptions relating to collisions in our law. There are many such presumptions, however, in the laws of other countries, and it was for that reason that the conference adopted article 6, which provides that "all legal presumptions of fault in regard to liability for collision are abolished." Article 5, which establishes liability in case of collision caused by the fault of a pilot, even though compulsory, brings the general law into harmony with our own. Article 7 prescribes a limitation period of two years for bringing suits for collision, which we deemed a reasonable provision. Awaiting your further instructions, we have the honor to be, sir, Your obedient servants, WALTER C. NOYES. FEBRUARY 29, 1911. CONVENTION FOR THE UNIFICATION OF CERTAIN RULES IN REGARD TO COLLISIONS. [Translation.] Where a collision occurs between seagoing vessels or between seagoing vessels and vessels of inland navigation the compensation due for damages caused to the vessels, or to any things or persons on board thereof, shall be settled in accordance with the following provisions, in whatever waters the collision takes place. ARTICLE 2. If the collision is accidental, if it is caused by force majeure, or if the cause of the collision is left in doubt, the damages are borne by those who have suffered them. This provision is applicable where the vessels, or any one of them, are moored at the time of the accident. ARTICLE 3. If the collision is caused by the fault of one of the vessels, liability to make good the damages attaches to the one which has committed the fault. ARTICLE 4. If there is mutual fault, the liability of each vessel is in proportion to the gravity of the faults respectively committed; but if, according to the circumstances, the proportion can not be established, or if it appears that the faults are equal, the liability is apportioned equally. The damages caused either to the vessels, or to their cargoes, or to the effects or other property of the crews, passengers, or other persons on board, are borne by the vessels in fault in the above proportions without joint liability toward third parties. In respect of damage caused by death or personal injury, the vessels in fault are jointly liable to third parties without prejudice, however, to the right of contribution belonging to the vessel which has paid a larger part than that which in accordance with the provisions of the first paragraph of this article she ought ultimately to bear. It is left to the law of each country to determine, as regards such right to obtain contribution, the meaning and effect of any contract or provision of law which limits the liability of the owners of a vessel toward persons on board. ARTICLE 5. The liability imposed by the preceding articles attaches, in cases where the collision is caused by the fault of a pilot, even when pilotage is compulsory. ARTICLE 6. The right of action for the recovery of damages resulting from a collision is not conditional upon the entering of a protest or the fulfillment of any other special formality. There are no legal presumptions of fault so far as responsibility for the collision is concerned. ARTICLE 7. Actions for the recovery of damages are barred after an interval of two years from the date of the accident. The period within which the right of contribution allowed by paragraph 3 of article 4 must be exercised is one year. This limitation runs only from the date of payment. The grounds upon which the said periods of limitation may be suspended or interrupted are determined by the law of the court where the case is tried. The high contracting parties reserve to themselves the right to provide by legislation in their respective countries that the said periods shall be extended in cases where it has not been possible to arrest the defendant vessel in the territorial waters of the State in which the plaintiff has his domicile or his principal place of business. ARTICLE 8. After a collision, the master of each of the vessels in collision is bound, so far as he can do so without serious danger to his vessel, her crew, and her passengers, to render assistance to the other vessel, her crew, and her passengers. He is likewise bound, so far as possible, to make known the name of his own vessel and the port to which she belongs, and also the names of the ports from which she comes and to which she is bound. A breach of the above provisions does not impose any liability on the owner of a vessel. ARTICLE 9. The high contracting parties whose legislation does not forbid infringements of the preceding article bind themselves to take or to propose to their respective legislatures the measures necessary for the prevention of such infringements. The high contracting parties will communicate to one another, as soon as possible, the laws and regulations which have already been or may be hereafter promulgated in their States for giving effect to the above undertaking. ARTICLE 10. Under reservation of the conventions which may subsequently be made, the provisions of this convention do not affect in any way the law in force in each country with regard to the limitation of shipowner's liability, nor do they affect the legal obligations arising from contracts of carriage or from any other contract. ARTICLE 11. This convention does not apply to ships of war or to Government ships appropriated exclusively to a public service. ARTICLE 12. The provisions of this convention shall be applied as regards all persons interested when all the vessels concerned in any action belong to contracting States and in any other cases for which the national laws provide. Provided always that: 1. As regards persons interested who belong to a noncontracting State, the application of the above provisions may be made conditional upon reciprocity. 2. Where all the persons interested belong to the same State as the court trying the case, the provisions of the national law and not of the convention are applicable. ARTICLE 13. This convention extends to the making good of damages which a vessel has caused to another vessel or to goods or persons on board either vessel, either by the execution or nonexecution of a maneuver or by the nonobservance of the regulations even if no collision has actually taken place. ARTICLE 14. Any one of the high contracting parties shall have the right, three years after this convention comes into force, to call for a fresh conference, with a view to seeking such ameliorations as may be brought therein, and particularly with a view to extending, if possible, the sphere of its application. Any power exercising this right must notify its intention to the other powers through the Belgian Government, which will see to the convening of the conference within six months. ARTICLE 15. States which have not signed this convention are allowed to adhere to it on request. Such adhesion shall be notified through the diplomatic channel to the Belgian Government, and by that Government to each of the other Governments; it shall become effective one month after the sending of the notification by the Belgian Government. ARTICLE 16. This convention shall be ratified. After an interval of at most one year from the day on which the convention is signed the Belgian Government shall place itself in communication with the Governments of the high contracting parties which have declared themselves prepared to ratify it, with a view to deciding whether it is expedient to put it into force. The ratifications shall, if so decided, be deposited forthwith at Brussels, and the convention shall come into force a month afterwards. |