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Uniform law relating to the limitation of liability of shipowners
Published online by Cambridge University Press: 21 May 2009
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1. To those who are striving for the establishment of one uniform system of maritime law, the 25th day of August, 1924 must no doubt be an important mile-post on the long road which they hope will one day lead to the desired goal.
On that day diplomatic representatives of a number of nations at Brussels signed two International Conventions, one relating to the limitation of liability of the shipowner and the other to the liability of the carrier in the case of carriage of goods under a bill of lading.
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References
page 385 note 1 Japan signed with a reservation, inter alia with regard to the important paragraph 2 of article IV of the Hague Rules.
page 386 note 1 In the Union of South Africa a bill incorporating the Hague Rules has been passed by Parliament, but it has not yet come into force. In the Netherlands a bill incorporating the Hague Rules was introduced in Parliament this summer. See for the workings-phere of the Hague Rules: Knauth, The American Law of Ocean Bills of Lading, 4th Ed.; Colinvaux, The Carriage of Goods by Sea Act, 1924; Ripert, Droit Maritime II, 4th Ed.; Cleveringa, Het Nieuwe Zeerecht, 3rd Ed.
page 386 note 2 See: Limited Liability in Collision Cases, an Outline by Kaj. Pinneus, published in Nordiske Donarne i Sjøfartsanliggender in 1945.
page 387 note 1 Cf. Ripert, Droit Maritime, 4th Ed., t. III, nos. 2063 and 2126 bis, brought up to date until September 1951 and Bulletin 105 of the Comité Maritime International.
page 387 note 2 “It is definitely awkward to see certain states refuse to ratify an international convention to which they affixed their signatures, especially where others, which did ratify it, did modify their national legislation sometimes because of international discipline. We meet here with a failure of the work of unification which is regrettable.”
Ripert, op cit., no. 1254 bis.
page 388 note 1 By the Chairman of the Association of Average Adjusters, Sir Douglas Owen, K.B.E., who especially raised objections to the rule limiting a shipowner's liability to the value of the ship after the accident.
page 390 note 1 See the speech of Mr Karel Moors, well documented and worth reading, printed in Rechtskundig Weekblad, November 1rst, 1953. See also Wüstendorffer, “Neuzeitliches Seehandelsrecht” (1950)Google Scholar, who writes on page 144: “Die rein dingliche Haftung des Reeders ist ein dürrer Zweig am Lebensbaum des deutschen Seerechts; sie ist veraltet gegenüber den technischen und wirtschaftlichen Gegebenheiten des heutigen Seeverkehrs.” (“The liability “in rem” only of the shipowner is a barren branch on the tree of life of German marine law; it is obsolete in view of the technical and economic conditions in the maritime field of the present day”). With regard to this subject, it is interesting to note that in Greece the rules on limitation of liability were altered in 1949 and now offer the shipowner the choice between abandoning his ship, paying an amount equivalent to the value of the ship at the end of the voyage or paying a certain sum per ton. For particulars, see Spiliopoulos, K., Droit Maritime Français, nr 62, 02 1954.Google Scholar
page 392 note 1 W. G. Symmers, Limitation of Shipowner's Liability in the United States in Papers on Marine Insurance Matters, Vol. II, published by the Institute of London Underwriters. In the case of a collision on the high seas, the “lex fori” is applied in the United States, however. Cf. the “Titanic” (1913), 233 U.S. 718.Google Scholar
page 393 note 1 Art. 8, sections 4 and 5: “If different creditors take proceedings in the courts of different states, the owner may, before each court, require account to be taken of the whole of the claims and debts so as to ensure that the limit of liability be not exceeded. The national laws shall determine questions of procedure and time-limits for the purpose of applying the preceding rules.”
page 393 note 2 The “Crathie” (1897) VIII Asp. M.C. 256.Google Scholar
The “Kronprinz Olav” (1921) XV Asp. M.C. 312.Google Scholar
The “Coaster” (1921) 38 T.L.R. 511, 10 U.L. Rep. 592.Google Scholar
Marsden, On Collisions at Sea, 10th ed., p. 202.
See also: Kloeckner, vs. Hakedal, A. B.,' 1954 A.M.C. 643.Google Scholar
page 393 note 3 Cf. DrAsser, J. T., “Uniform Zeerecht” in “Nederlands Juristenblad” 1953, p. 753Google Scholar, Ripert, G., “Droit Maritime”, t. III, p. 819.Google Scholar
Vide also Bulletin 105 of the Comité Maritime International (Naples Conferende 1951) and A. Lilar and C. van den Bosch in “Unification of Law”—A General Survey of Work for the Unification of Private Law (Drafts and Conventions), Rome 1954.
In the United States of America a sistership can also be arrested according to municipal law.
page 394 note 1 Art. 4, section 3 of the said Convention, not allowing—with certain exceptions—a claimant to arrest a vessel in respect of the same claim a second time in another jurisdiction does not deal with this problem.