MARITIME CONVENTIONS BILL [H.L.] (Hansard, 15 August 1911)

LORD HERSCHELL
My Lords, this Bill is designed to give effect to two international Conventions, one relating to collisions and the other to salvage, both of which were signed in Brussels last year by the representatives of no fewer than twenty-four countries, including all the principal maritime nations. These Conventions are the outcome of a movement in favour of the unification of maritime law which was started as far back as the year 1885, when various unofficial maritime associations were formed in different countries to promote this object and were affiliated under the title of the International Maritime Committee. This committee, with its branch associations, consists of lawyers, shipowners, underwriters, merchants, and other persons interested in maritime law, and a number of unofficial conferences have been held under its auspices. From this it was only a natural step that an official conference should be held.
The first official conference on this subject was held in February, 1905. On that conference this country was not represented, but owing to the very strong expression of the views of certain associations and chambers of commerce the Government decided to send delegates to the subsequent conferences, which met in October, 1905, and also in 1909 and 1910. These two Conventions, in order to carry out the provisions of which this Bill is designed, were signed at the last conference in 1910. I may mention that at the last two conferences Conventions relating to limitation of shipowners' liability and to maritime mortgages and liens were discussed, but they are in draft form only, and will come up before another conference to be held probably next year. Your Lordships will realise that a great deal of consideration has been given to these Conventions, and in the interval which elapsed between the various conferences the Board of Trade took every opportunity of consulting the different interests which are affected, and I think it may be said that the Conventions as finally signed do meet most of the criticisms which have been raised. Of course, your Lordships will realise that there has had to be, as is the case in all international agreements, a certain amount of give and take, but on the 1096 whole one may say that the important changes which are required in British law are very few in number.
I will now explain as briefly as I can the actual provisions of the Bill. The first clause contains the rule as to division of loss when both vessels in a collision are found to blame. At present, instead of the Common Law rule being applied by which each vessel would bear her own loss, the special rule of the Admiralty Court is applied, by which the total loss is aggregated and then each vessel bears one-half of that total. The Convention and the Bill propose to substitute for this rule a rule by which the damages will be apportioned in proportion to the degree of fault which each vessel has respectively committed. This proposal has the support of shipowners generally, and has not met with any opposition from the great majority of traders. It has, however, been criticised from certain quarters, and perhaps I may state the principal criticisms which have been directed against it.
The first criticism is that this proportional division of loss is not founded on principle. I think this is quite true; but it is equally true that the half-and-half division of loss is not founded on principle. In fact, so much is this the case that it has been known for years as rusticum judicium, a rough-and-ready form of justice. The second criticism is that it is impossible for a Court to fix the exact amount of fault which attaches to each vessel. There are cases, no doubt, where it is impossible to ascertain this; but if your Lordships will look at Clause 1, subsection (1), paragraph (a), you will see that it is laid down that if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally. As a matter of fact, this proportional rule does obtain in a great number of foreign countries, and there it has been found, in quite ninety per cent. of the cases that come under the rule, that a half-and-half division is arrived at by the Judge. Therefore you may say that this proportional rule would only come into force in cases where one vessel was very clearly more in fault than the other. The third criticism is that the proportional rule would increase litigation. This is, of course, a matter which can only really be decided by experience. But it is contended that there may be some inducement under this rule to contest a case in the hope of only having to pay a minority 1097 of the damages. On the other hand, by adopting this rule there will no longer be the incentive which there is under the existing law to proceed with an action in the hope of getting off with half of the damages instead of the whole amount because the other vessel concerned was in fault in a small or technical degree. But, generally speaking, I would urge in favour of this particular rule that its adoption is advocated by all the foreign countries which signed this Convention, and that France and Germany have adopted this proportional rule so lately as the year 1900. The adoption of it will remove the diversity of law which at present exists, and it is stated to work well in the countries in which it is established.
The second provision of the Bill deals with the right of claimants to recover damages when both vessels are to blame. At present a claimant in respect of damage to cargo cannot recover in tort more than one half of the damage from the owners of the ship, and the same rule would seem to hold good as to claims in respect of personal injuries. Claimants in respect of loss of life can, however, under Lord Campbell's Act, recover the full amount of the damages from either vessel. The Convention and the Bill propose to alter the law so as to place personal injuries claimants on the same footing as loss of life claimants; but as regards all three classes of claimants the right to recover damages is always subject to the provisions of any contract to the contrary. When a vessel has been made to pay ill respect of loss of life or personal injury a proportion of damages which is greater than the proportion which she is found in fault, she has a right of recovery of the overpaid portion from the other vessel which is in fault, but this is subject to the important proviso that the right to obtain a contribution from the other vessel cannot be exercised when that other vessel is protected by any statutory limitation or exemption from liability.
Let us suppose that a collision takes place between two ships, A and B, and that both vessels have been found equally in fault. A passenger in ship A who has sustained personal injury can proceed against either ship A or B for the full amount of his claim, but if he wins his case—say that he has proceeded against ship B—then ship B can recover from ship A one-half of the amount which she has paid as both vessels 1098 were equally to blame. But this rule is subject to the proviso which I have mentioned—that if ship A has expressly exempted herself from liability for injury to her passengers then, according to the proviso, ship B has no right of recovery from ship A. This may seem somewhat anomalous, but it certainly would appear less anomalous than the alternative. We will suppose that ships A and B are in collision, and that ship A has protected herself against any possible claim in respect of personal injuries and that one of her passengers is injured in the collision. If this proviso is not inserted in the Bill, ship B could then recover from ship A a portion of the very damages from which ship A had sought to exempt herself. To put it in another way, ship A, as long as she is entirely responsible for the injuries which result to the passenger, has not to pay any damages; but if she is not entirely responsible but another vessel is partly responsible, then she has to pay a portion of the damages, although if she was entirely responsible she would not have to pay any.
The fourth clause of the Bill abolishes statutory presumptions of fault, and this is a clause which has met with very general acceptance. It necessitates the repeal of subsection (4) of Section 419, and subsection (2) of Section 422 of the Merchant Shipping Act, 1894. Under the first subsection winch it is sought to repeal, a vessel is held to be in fault in a case of collision if she omits to carry out any of the regulations, although such omission may not in any way have contributed to the cause of the collision. For instance, vessel A is crossing the Channel; her port light is burning, but her starboard light has become extinguished. Vessel B is steering a course down Channel, and instead of obeying the rule of the road she holds on her course and collides with A on the port side. Ship B is clearly in the wrong, but under the existing law ship A is also presumed to be in fault because her starboard light was not burning at the time when the collision occurred, although this fact contributed in no way to the collision; nor under any possible conditions could ship B have seen whether that light was burning or not. The second subsection which it is sought to repeal presumes that a vessel is in fault if she does not stand by to render assistance to another vessel after a collision. This is quite an unimportant matter, in view of the fact that any master who does not so stand by 1099 and render every assistance in his power is subject under the Act to extremely severe penalties. That is practically all there is in the Bill which deals with the Collisions Convention.
With regard to the provisions as to salvage, here practically very little change has to be made in British law, and it certainly is a matter for congratulation that all these nations should have been brought to see eye to eye with British law in questions relating to salvage. The only two clauses in the Bill with regard to salvage are Clauses 5 and 6. Clause 5 imposes a general duty on all masters of vessels to render assistance to persons in danger at sea, and Clause 6 provides that where a dispute arises as to the exact distribution or apportionment of a salvage award the dispute shall be settled, not in accordance with the law of the country which makes the salvage award, but in accordance with the law of the country to which the ship belongs.
As to the general provisions, which are the last ones in the Bill, there is one important provision which limits the time during which proceedings can be instituted. Proceedings under the Bill must be instituted within two years from the date that the claim arose, or within one year from the date of payment in the case of a ship which seeks to obtain a contribution from another ship in collision, The point of this provision is to discourage stale claims, and I do not think any hardship can be inflicted by this provision having regard to the proviso by which the Court is given discretion under certain conditions to extend the period if it thinks fit. Clause 8 defines the scope of the Bill, which is to extend throughout His Majesty's Dominions with the exception of Canada, Australia, New Zealand, South Africa and Newfoundland, which Dominions will, of course, be capable of adopting the Convention and of legislating should they so desire. The Bill contains practically all the Articles in these two Conventions which were signed last year with the exception of one dealing with the defence of compulsory pilotage—a matter which will be considered in connection with the proposals of the Departmental Committee on Pilotage.
I have nothing further to say about the Bill. The Bill is an important one. It is the first step towards a very desirable 1100 object—namely, the unification of the maritime law of all countries. There is no question that a great deal of inconvenience and even of hardship does arise from the diversity of law which obtains in different countries, and in view of the enormous number of cases where British vessels are tried before foreign Courts and where foreign vessels are tried before British Courts I hope your Lordships will agree to the Second Reading of this Bill.

§ THE MARQUESS OF LANSDOWNE
My Lords, the measure of which the noble Lord has moved the Second Reading is a very important, and I am inclined to believe a very valuable and useful measure. It has behind it, as he has told the House, a great weight of authority. It is intended to give effect to the two Conventions which were executed in the year 1910 at Brussels; and not only does it do that, but it marks a step in a movement which the noble Lord has truly told us has been in progress for some time—a movement for the unification of maritime law, the anomalies and inconsistencies of which have occasioned in the past so much inconvenience and hardship. What I think it is desirable we should remember is this, that the interest of this country in legislation of this kind far transcends that of any other country. It is quite true that twenty-four Powers were represented at the Brussels Convention, but no one of those Powers has a maritime trade comparable at all with that of this country. It is, therefore, absolutely necessary that any proposals of this kind should be carefully scrutinised and full opportunity given to the mercantile community to express any views that they may hold with regard to it. That brings me to the only observation I desire to make. I hope I am right in supposing that the noble Lord will be content if he gets the Second Reading before the adjournment, and that we shall not be called upon to deal further with the Bill until much later in the year.

LORD HERSCHELL
That is so. It is not my intention to take any further stage of the Bill until after the adjournment.