International Maritime Conventions (Volume 2)

Navigation, Securities, Limitation of Liability and Jurisdiction

Francesco Berlingieri

• Éditeur: Informa Law from Routledge
• Année: 2014
• ISBN:
  9781317746089
• Édition: 1
• Sujet: Diritto
• Sous-sujet: Diritto marittimo

For the first time, this unique text brings together all private international maritime law conventions alongside expert commentary and analysis. Truly global in approach, the book covers each of the nineteen conventions currently in force, all scrutinised by this internationally-acclaimed author. It also examines important maritime conventions not yet fully ratified, including the topical Rotterdam Rules.

This comprehensive resource provides a thorough treatment of both wet and dry shipping treaties, combining breadth of coverage with depth of analysis. In this second volume, the author covers the key conventions dealing with collision, salvage, maritime liens and mortgages, arrest of ships, and limitation of liability. In particular, the author covers:

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• International Convention for the unification of Certain Rules of Law with respect to Collision between Vessels, 1910

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• International Convention on certain Rules Concerning Civil Jurisdiction in Matters of Collision, 1952

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• International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation, 1952

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• International Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, 1910

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• International Convention on Salvage, 1989

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• International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages, 1926

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• International Convention on Maritime Liens and Mortgages 1993

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• International Convention relating to the Arrest of Sea-Going Ships, 1952

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• International Convention on Arrest of Ships, 1999

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• International Convention Relating to the Limitation of Liability of Owners of Sea-Going Ships, 1957 and Protocol of 21 December 1979

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• International Convention on Limitation of Liability for Maritime Claims, 1976 and Protocol of 1996

This book is an indispensable reference for maritime lawyers, academics and students of maritime law worldwide.

PART I

COLLISION

CHAPTER 1

International Convention for the Unification of Certain Rules of Law Relating to Collision Between Vessels, 1910

1 THE HISTORY OF THE CONVENTION

The international unification of the law on collision at sea was first considered in connection with the apportionment of the liability between the colliding ships in view of the conflicting criteria in force in the various countries. From the report presented by Louis Franck to the 1899 London Conference,¹ it appears that discussions on this subject were held during the Congress of Commercial Law held in Antwerp in 1885, and were then continued at the Conference of the Institute of International Law held in Lausanne in 1888, at the Congress on Commercial Law held in Genoa in 1892,² and at the Conference of the International Law Association held in Brussels in 1895. In a speech made at the inaugural session of the Association Belge pour l’Unification du Droit Maritime on 22 November 1896,³ Antoine Franck explained the reasons for the unification of the law on collision at sea, describing the various conflicting systems in force in the world with respect to the apportionment of liability, and strongly supporting the principle of the apportionment of liability on the basis of the gravity of the fault. Immediately after its foundation, the Comité Maritime International (CMI) chose collision at sea as its first subject and, in preparation for the Conference to be held in Antwerp in September 1898, distributed to the national associations that had already been constituted⁴ the following questionnaire:⁵

1. In case of collision by inevitable accident, should each bear his own loss? If so, should the case of one ship at anchor and one under way be made an exception to the rule?

2. Should a collision where the fault is inscrutable be treated on the same basis as inevitable accident?

3. If the collision is caused by fault of one vessel, should the whole damage be supported by the owner of the ship on board of which the fault was committed?

4. What effect ought the presence of a compulsory pilot have upon liability in case of collision?

5. What effect ought the fact that one colliding ship is in tow to have upon liability?

6. Where both ships are in fault, how ought the damage (a) to the ship, (b) to the cargo be borne? Ought those in fault be held jointly and severally liable?

7. Ought the damages in cases of collision constitute a complete reparation for the damage suffered?

8. Ought actions for damage by collision to be subject to the necessity of a ‘protest’ or any other preliminary formality?

9. Ought the time to be limited within which actions of collision may be brought?

10. Is the time ripe for an examination and settlement of provisional and precautionary measures to which it is necessary to have recourse in order to secure the claims arising out of collisions? What form should the securities take?

On the basis of the replies given by the national associations of Belgium, France, Germany, the Netherlands, Norway and the United Kingdom, and of the debate that took place during the Antwerp Conference, the following resolutions were adopted by the Conference:⁶

1. Inevitable accident.

In the case of inevitable accident, each ship should bear its own loss. The case where one ship is at anchor should not be made an exception.

2. Inscrutable accident.

The case of inscrutable accident should be treated like that of inevitable accident. Inscrutable accident, means that fault causing the collision is not established against either party.

3. One ship to blame.

Where a collision is caused solely by the fault of one ship, the owner ofthat ship ought to bear the loss.

4. Compulsory pilotage.

Compulsory pilotage ought not to affect the owner’s liability.

5. Tug and tow.

The ship towed should be responsible for the fault of the tug, unless it be shown that the tug was not in the service of the tow. This principle does not affect the right of recourse which the tow may have against the tug.

6. Both to blame.

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.

7. Damages.

The damages in cases of collision ought to constitute a complete compensation for the damage suffered, according to common law.

8. Formalities.

Actions for damage by collision are not to be subject to the necessity of a protest or any other preliminary formality.

9. Prescription.

In principle, two years should be the delay for prescription of the action for damage by collision.

At the subsequent CMI Conference, held in London from 13 to 15 July 1899, the more limited subject of the apportionment of liability in collisions where both ships are to blame was placed on the agenda and the following four questions were submitted to the Conference:⁷

1. How should the damage be apportioned as between the vessels in fault?

2. Should the principle of proportional apportionment of damages apply to the cargo as well as the ship, or should the cargo owners (or other third parties) be entitled to proceed jointly and severally against the vessels?

3. Should a vessel jointly to blame, proceeded against by cargo in virtue of the contract of carriage, be able to oppose to cargo’s claims a defence of responsibility for only a portion of the damage?

4. If it is admitted that the proportional principle shall apply to cargo, ought then the cargo to establish the degree of fault attaching to each vessel or does it lie upon the ship which alleges joint fault to establish the degrees of fault?

At the end of the Conference the following resolutions were adopted:⁸

1. Where both ships are to blame for a collision, the damages as between the two ships should be apportioned according to the degree of fault.

2. The principle of proportional apportionment of damages should apply to the cargo as well as to the ship, and the cargo owners or other third parties interested in property should not be entitled to proceed jointly and severally against the vessels.

3. A vessel jointly to blame proceeded against by cargo in virtue of the contract of carriage should be able to oppose to cargo’s claims a defence of responsibility for only a portion of the damage.

4. When the cargo owner is claiming against the carrying ship, it lies upon that ship to prove that the loss was caused either by a peril excepted by the contract of affreightment or that the loss was caused without negligence, or, if by negligence, to some extent and to what extent by the negligence of the other ship. When the cargo owner is claiming against the non-carrying ship, the cargo owner must prove negligence against that ship, and it lies upon that ship to prove the degree of fault, if any, of the carrying ship.

5. That the Conference, taking into regard the improbability of the legislatures at present admitting the principle of apportionment as to the claims for personal injury and loss of life, deems it advisable to defer the consideration of this question.

6. This Conference recommends for universal legislative adoption the following rule in cases of loss or damage to property arising from improper navigation, whether such property be afloat or ashore. The shipowner shall be permitted at his option to discharge his liability (a) either by abandoning ship and freight, (b) or by paying a sum of money calculated upon the tonnage of the ship. This resolution has no reference to claims for loss of life or personal injury.

7. That this Conference, having regard to the resolutions passed here and at Antwerp, records its sense of the great inconvenience and frequent injustice resulting from the diversities of other maritime laws of the nations regarding the consequences of collision at sea and the responsibilities of shipowners in relation thereto; and it heartily supports the suggestion of the Chamber of Shipping of the United Kingdom, to the effect that Her Majesty’s Government be invited to institute a full enquiry into the whole subject, and recommends all its members to bring the matter to the attention of their respective Governments.

8.That the officers of the Conference be instructed to bring the resolutions to the notice of their respective Governments.

The manner by which uniformity could be achieved had not yet been discussed in depth. From resolutions Nos 7 and 8 reproduced above, it appears that it was felt at that time that the best manner would have been for each national association to draw its government’s attention to the need for uniform rules. The problem was again considered at the CMI Conference held in Hamburg in September 1902, when the Conference considered that the best way to achieve uniformity would be to request a government to convene a diplomatic conference, and therefore resolved to request the Bureau Permanent to choose the government to which this request should be made. The Bureau Permanent decided that the Belgian Government would be most suitable for this task, whereupon the president of the CMI, Mr Beernaert, and the two vice presidents, Mr Le Jeune and Mr Franck, submitted to the Belgian Government a request to consider convening a diplomatic conference for the consideration of draft uniform rules on collision at sea and salvage.⁹ This request was favourably received,¹⁰ and the Government of Belgium approached without delay the governments of the other maritime countries.¹¹

A Diplomatic Conference was then convened by the Belgian Government in Brussels in 1905. A first session was held from 21 to 25 February 1905, when the draft conventions on collision and salvage were submitted to the Conference. A second session of the Conference was held in October 1905, when a provision on the scope of application was added to the draft. A third session was held in October 1909, when a provision was added to the effect of making the owners of the ships at fault jointly liable in respect of damages arising out of death and personal injuries.

The Convention was adopted in one official language only, French, at the third plenary session of the Conference held in Brussels from 12 to 27 September 1910.

2 THE SCOPE OF APPLICATION OF THE CONVENTION

The scope of application of the Convention must be considered from th...