§ Order of the Day for the House to be put into Committee, read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Herschell.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 1:
§ Provisions as to Collisions, & c.
§ 1.—(1) Where by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault:
§ Provided that—
- (a) 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; and
- (b) nothing in this section shall operate so as to render any vessel liable for any loss or damage to which her fault has not contributed; and
- (c) nothing in this section shall affect the liability of any person under a contract of carriage or any other contract, or shall be construed as imposing any liability upon any person from which he is exempted by any such contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law.
§ (2) For the purposes of this Act the expression "freight" includes passage money and chartered hire.
§ (3) Subsection (9) of section twenty-five of the Judicature Act, 1873, shall cease to have effect, and the provisions of this section shall be applied in all cases heard and determined in any Court having jurisdiction to deal with the case.
LORD HERSCHELLI beg to move the omission of subsection (3). This is really only a drafting Amendment, as it is proposed to insert this subsection in a somewhat more general form in Clause 8 so as to make the scope of the Bill quite clear.
§ Amendment moved—
§ Clause 1, page 2, lines 11 to 14, leave out subsection (3).—(Lord Herschell.)
§ On Question, Amendment agreed to.
§ Moved, That Clause 1, as amended, stand part of the Bill.—(Lord Herschell.)
§ LORD GORELLMy Lords, I feel some diffidence in moving the Amendment which stands in my name, which is to leave out Clause 1 of this Bill. The reason why I venture to move its omission is not so much because I think that the clause will, after your Lordships have heard what is to be said about it, be struck out, but because I think that in these international matters and in anything affecting the question of commerce and shipping it is extremely desirable that the facts should be put before your Lordships. In that way you will be able to see whether the advantages to be gained by the retention of this clause, which I think I may say is practically the vital clause of the Bill, overwhelm and outweigh such objections as have been felt with regard to the proposition which it establishes.
This clause has for its object the making of damage or loss caused in consequence of a collision between two or more vessels fall upon the owners of those vessels in proportion to the degree in which each vessel was in fault, and that is a matter which I think I shall show gives rise to considerable difficulty in its actual working 18 out. If the clause were omitted the present law of England would apply. I will state that law in one moment. But think it is necessary to state at the outset of the few observations which I shall make that very great confusion in maritime laws has prevailed in connection with the subject of what should be the division of loss when two vessels, or more vessels, which is extremely rare, come into collision and do damage to each other and the cargoes on board them. For many years conferences have been at work, of which think those collected together by the International Maritime Committee have been most effective. I ought perhaps to say that the Governments of the various countries all over the world—there may be sonic exceptions, but substantially the whole of the great nations of the world—ultimately met, through their representatives, and produced, after, I think, two or more years of meetings, a Code which is now one of the Codes on this subject which have to be considered for adoption.
There have been four Codes. Two of them have been adopted by the representatives of His Majesty's Government. One of them is the Code on which arises the question of collisions between ships; the other has reference to the question of salvage rendered at sea by one vessel to another. There are two other Codes still in process of negotiation and discussion—Codes for the purpose of declaring what shall be the limits of liability of vessels and their owners, and what shall be the liens and claims upon them and how those liens and claims shall rank. So far those latter two have not produced sufficient uniformity in the Congresses to be adopted by His Majesty's Government. The two, however, which form the subject of the present Bill have; and in order to appreciate precisely the effect and the advantages or disadvantages of them, I think your Lordships should be in possession of the various forms or leading forms in which these questions of liability for collisions have been dealt with. You should know how much uniformity has been obtained and what are the advantages to be gained, and also the disadvantages which I suggest have from one point of view to be taken into account.
Before 1875, when the Judicature Act came into force in this country, the English Common Law and the Admiralty Law of 19 England differed. By the English Common Law, where two vessels collided and there was a blame on both of them the loss was allowed to rest where it fell. In cases where both vessels contributed to the disaster one could not recover against the other. But the Admiralty rule had for two or three centuries been that where two vessels collided and both were in fault the owners had to divide between them the total loss which had happened and each bear one-half of it. That was founded on earlier decisions and gradually came to be the rule of the Admiralty. In 1875, however, the Judicature Act was passed, and though at first it was intended to adopt the Common Law rule, finally it was the Admiralty rule which was adopted, and the Judicature Act provided that that rule should prevail throughout the country. Therefore both at Common Law and in Admiralty the rule became one and the same. That rule, which divided the loss, works very satisfactorily, and there was, as far as I can make out, no substantial grievance at all in the effect of its operation.
What grievance there was, which I think led to the acceptance of these proposals in England, was that the Statute which regulated navigation provided that, if any of the Collision Regulations were infringed, that infringement should of itself lead to the condemnation of the vessel that infringed them, unless it was proved that a departure from the Regulations was necessary. The result of the application of this rule of both vessels being held to blame was this. There were cases in which the real substantial negligence was on the part of one vessel, but because there had been some breach—a very trifling breach, it may be, and not necessarily conducing to the collision—on the part of the other vessel, that vessel was also held in fault and the division of loss equally took place. One of the clauses in this Bill does away with that liability for a breach of the Collision Regulations. It is Clause 4, which provides that subsection (4) of Section 419 of the Merchant Shipping Act, 1894 (which provides that a ship shall be deemed in fault in a case of collision where any of the Collision Regulations have been infringed by that ship) is hereby repealed; and so the real difficulty which was raised by that presumption and the hardship which it produced is to be done away with. If that were done away with and nothing else were done, and 20 the present rule remained as it is, it would be necessary, and it is thought reasonable that it should be necessary, to prove, in cases where both vessels were to blame, that their fault in each case contributed to the collision; so that that clause by itself would remove what I believe was the only grievance in this country prior to the present time.
In other countries there were three leading systems—I will state them very briefly in order that this particular clause may be appreciated—of assessing damage where two vessels were to blame. The first was that the damage should rest where it fell. As I have already stated, that was in force at Common Law in England until 1875. Up to that time, and I believe up to the present, that rule had been the rule in the United States of America on its Common Law side, though not on its Admiralty side. It was also the rule in Germany up till recent times. I believe in 1906 they adopted the principle which is now indicated in this new proposal. It was the rule in Holland, in Italy, in Russia usually, in Spain, in the Argentine Federation, in Uruguay, in Venezuela, and in some other countries. Substantially one may say that in a number of countries the rule was that the damage should rest where it fell, and neither could recover from the other. In other countries the gross damage was divided equally and borne by the two respective shipowners. That was so in Great Britain, in her Colonies, and on the Admiralty side in the United States of America; and I think I am correct in saying that the probability is that there were more cases under that rule than under any other, as the shipping of Great Britain and her Colonies was so enormous and the Admiralty Court was so generally resorted to. The third leading rule adopted was that the gross damage should be apportioned between the owners according to the degree of the blame of the vessels. That rule has been adopted in Belgium, in France, in Greece, in Portugal, in Germany, by the Scandinavian States, and also in Roumania. So far I have been dealing with damages that have happened to ships. There was a fourth form of leading rule—the whole of the damages appear to have been put together and a sort of general average made of those damages according to the value of the vessels which were in collision. But that only applied, I believe, in Turkey and in 21 Egypt, in their international and native tribunals. Where the case was one of the cargo's position, matters were more complicated and the practice differed in the various countries. The rule as to life claims also differs, and the Code which the Conference adopted, and which this Bill proposes to assist in adopting generally, was intended to do away with this confusion. In the rules applied in Great Britain and in Admiralty cases in the United States, as I have said, the division of loss was equal; it was simple and easy of application, and the only grievance felt—I believe I am correct—was that the statutory fault was too severe a penalty.
I turn again to the proposal which is before the House in this Bill. It is that the loss should be in proportion to the degree of fault in which each vessel was found to blame. The point to which I wish to draw attention is this, that this clause endeavours to establish a form of liability which it is practically impossible to apply with any degree of accuracy. Consider for a moment the case of a collision between two vessels and whether one can say the precise proportion of fault on those vessels which led to the collision. It is, I think—and in this I have the authority of Judges of the Admiralty Court in former days—practically impossible; and the older Judges in the Admiralty Division, or the Admiralty Court as it then was, got rid of all that difficulty by declaring that no human being could say how much blame was to be attached to each of the vessels. They therefore adopted the rule that if both contributed to the collision each should bear half the loss, and that has been the English rule.
I have stated that the rule has been different in a great many other countries, and given the three leading classes of rule which have been adopted. I venture to suggest that there are these considerations. First of all, with regard to the rule now proposed in this clause, that no one can properly say what is the proportion or degree of fault which should fall upon a particular vessel. It is not a rule which can be worked practically, except by what has been done, as I understand, on the Continent. A note has there been circulated to the effect that in "both to blame" cases ninety per cent. of those cases have been divided by the Judges equally— 22 that is to say. in ninety per cent. of the cases where both vessels were to blame the Judges have been unable, as no human being, I think, is able, to divide the loss in proportion to the fault. Consequently they have jumped it, as our old Admiralty Judges did, by saying each pays half. There is a second point which, having had some experience in the Admiralty Court, I should like to bring forward. I do not think it is desirable that a Judge should be placed, as it were, simply in an arbitrator's position in which he has to make a rough-and-ready shot as to blame. In my opinion this would tend to weakness of decision. The third point is this. I do not see how it is possible for the same case tried by one tribunal and then appealed against to necessarily result in the same decision on appeal—that is to say, I do not see how two men will necessarily come to the same conclusion on the question of proportion of fault, or how there is to be any definite certainty of decision.
I have called attention to these points because I attach importance to them. The difficulty that I feel is this. I have throughout had some connection with the proposals and discussions which have led to these Conventions. I have ventured always to maintain this attitude about this particular rule of division. But one cannot avoid saying this, that this is an international matter, and it is very desirable to have a uniform rule applicable all over the high seas. All the countries who were signatories to the Convention have, I believe, agreed to the adoption of this proportionate rule. Some of them, as I have shown, had that proportionate rule in operation long before. There has also been a feeling amongst a large section in England that it is an advantageous rule to have, and I do not think I can say that in the objections I have stated I have had that support which resists a general agreement in favour of uniformity. The result, therefore, comes to this. You have, on the one hand, the great desire for uniformity of the law all Over the ocean; you have an agreement by the nations which will produce that uniformity; and you have, as against that, the objections which I have stated. While probably your Lordships will think that, the advantages of uniformity. outweigh the objections I have suggested, I have felt it a duty that one who has had a great deal to do with these cases should state the objections so that the House 23 should be in full possession of the general considerations applicable to this question before coming to a definite conclusion upon it.
I would only add that there is very little else except machinery in this Bill. That is to say, there is very little else in the two Conventions which this Bill proposes to ratify except the difficulty that arises on this clause. I have stated the objections to the clause so that your Lordships should know the objections as well as the great advantages that arise from adopting a rule which will enable all nations to act upon the same basis. If that rule were not adopted, I doubt very much whether these Conventions would be agreed to at all. I beg to formally move my Amendment to leave out Clause 1.
§
Amendment moved—
Leave out Clause 1.—(Lord Gorell.)
LORD HERSCHELLMy Lords, I need hardly say that I feel the greatest diffidence in rising to discuss this subject with so great an authority as the noble and learned Lord who has just addressed the House, but at the same time I am encouraged by the attitude which he adopted towards the Bill in general, and also by the invariable fairness which he displays and by his readiness to listen to and give consideration to views which are not exactly in accordance with his own. The noble and learned Lord has stated the three principal rules which had to be considered before this Convention was signed—that is to say, the Common Law rule, the Admiralty rule, and the proportional rule; and I will endeavour very shortly to tell your Lordships what induced the Board of Trade to adopt the proportional rule which is introduced in this Bill.
The Common Law rule, as the noble and learned Lord pointed out, lays down that the loss in the case of a collision where both vessels are to blame lies where it falls. This Common Law rule, generally speaking, may be found to work extremely well; but there is certainly ground for considering it unsuitable in connection with shipping matters where very large sums are involved, and where the circumstances attending the case are very often peculiar. It may, for instance, be fair enough that a man who is knocked down by a motor- 24 car should not receive compensation if he contributed to the accident by his own negligence. But let us take the case of a collision where both ships were to blame and were one ship suffers damage to the extent of many thousands of pounds and the other ship escapes with the loss, perhaps, of a little paint. Under the Common Law rule the whole of the loss would fall upon the one ship, although the fault lay at the door of both ships. There was also this fact to be taken into consideration, that Parliament deliberately rejected this rule in favour of the Admiralty rule at the time of the passing of the Judicature Act of 1873, and there is no reason for supposing that the various interests concerned would welcome so great a reversal of the present system as would be involved if a return were made to the Common Law rule. There therefore remain the two other rules—the Admiralty rule, which at present obtains under English law, where the aggregate of loss is divided and each vessel pays one-half, and the rule which is proposed in this Bill. I may say that this question was very thoroughly examined into and all the criticisms were considered by the Board before they agreed to the Convention.
Perhaps it would be as well to allude to the principal criticisms in order to show how the Board arrived at its conclusions. The first criticism was that this proportional rule was not founded on principle. I think that to a certain extent this is true, but one might suppose that those who advanced this argument in order to retain the present rule—the Admiralty rule—were under the impression that the Admiralty rule was founded on principle. This I do not think anybody could maintain, for it has been known for many years as rusticum judicium, a rough-and-ready form of justice. On the other hand, there does seem to be in the proportional rule a certain amount of what one might, perhaps, call principle, in the fact that the proportional rule endeavours to make the greater sinner pay the greater penalty. But the principal criticism which has been addressed to this proposal is that it is impossible for a Court to fix the exact amount of fault attached to each vessel, and that the proportional rule will lead to weak judgments. The noble and learned Lord who has just addressed your Lordships stated that this proportional rule does already obtain in certain foreign 25 countries, and he also alluded to the fact that in those countries ninety per cent. of the cases were decided on the half-and-half division. In this Bill a distinct provision is made which allows the Court to give a half-and-half decision where it cannot arrive at a conclusion as to what is the proportion of the damage. Ninety per cent. of these cases being decided on the half-and-half division, we are left with a very small minority where presumably the fault of one of the vessels was so very much greater than that of the other that the Judge had no difficulty in arriving at a conclusion as to how the proportion should be assigned. It is, of course, impossible to expect Courts to work out the proportion of blame with mathematical accuracy, but at any rate the provisions of this clause do admit of some differentiation being made where the greater culpability of one vessel is flagrant and proved beyond all doubt.
I might, perhaps, give one instance of the sort of case in which this proportional division might be applied. In the Shipping Gazette of March 14, 1899, a collision was reported between the "India" and "Hopper No. 5." The President of the Admiralty Division, in delivering judgment that both vessels were to blame, said it was impossible to justify the "Hopper's" conduct in endeavouring to cross the "India's" bows in the way attempted. The main cause of the collision was the conduct of the "Hopper," but the advice of the Trinity Masters was that the "India" had committed an error of judgment. In those circumstances, though he said it with some regret, the President of the Admiralty Division held that he could not disregard the advice which the Trinity Masters had given him, and must hold the "India" to blame. That was a case in which obviously it was with the greatest reluctance that the half-and-half division was applied, and a certain number of similar cases occur from time to time. One other criticism which was brought against this proposal was that the rule would lead to more litigation and to more appeals. This is a question upon which I, personally, am not at liberty to say very much, as I really know nothing concerning that particular point. At the same time it is a question which it is difficult to decide until we have had some experience to show us what really will be the result. It has been said that this proportional rule will 26 give some inducement to contest a case in the hope of escaping with a minority of the damages; but against that one must consider the fact that under the present rule there is certainly an inducement to contest a case in the hope that by the fact of the other vessel being found guilty of some small error of judgment she should have to bear one-half of the damages.
Apart altogether from the points to which I have alluded, I should like to say one word with regard to the general aspects of the case. This clause, as the noble and learned Lord has pointed out, is of vital importance to the Bill. In fact, I think he said that it was practically the only thing which there was in the Bill. I was glad that he said that, for this reason. I think the fact of the Bill containing as little as he says shows that these two Conventions which were signed last year are practically an affirmation, or at any rate chiefly an affirmation, with the exception which he mentioned, of our own law. The Salvage Convention is entirely an affirmation. Therefore I think we have some cause for congratulation from that point of view. Again, I think it would he impossible to under-estimate the immense advantages which would be gained from a unification of maritime law, could such an end be attained. The omission of this clause and the consequent loss of the Bill would undoubtedly retard to a very considerable degree the progress which has been made in the direction of this object, which is so greatly to be desired.
§ THE EARL OF HALSBURYMy Lords, my noble and learned friend who has moved this Amendment has had considerable experience in the particular matters with which we are now engaged, and I confess that I should differ from him with very great difficulty and doubt. If one had had no experience oneself, I think one would feel that one ought to treat such experience as his with very great respect. But there is much to be said for his reasoning apart from the great value of his experience. Imagine the position of a Judge who has to try the question, not only of the merits between the parties, but the question of the proportion of negligence. It is not the proportion of damage done, but the proportion of negligence. The Judge has to consider some error in navigation on both sides and then try to reduce that into the question of damages to see how much 27 one side ought to pay and how much the other. I confess that that seems to me to introduce a question of great difficulty. The authors of this Bill seem to have been quite aware of that, for there is a provision that if the Judge cannot decide the proportion of negligence then he may divide it between the two. It is to be remembered that all these rules, if they do not follow natural justice, acquire a value through being the known rules, and I think there ought to be very considerable advantage established before Parliament departs from known rules. That which most of all makes litigation expensive and difficult is that people should not know what the law is. Very often when one of these difficult problems comes up for discussion it is said, "Oh, let the Judges settle it." I do not think that is fair upon the Judges, and I should like very much to hear what my noble and learned friend the Lord Chancellor has to say upon the question.
§ THE LORD CHANCELLOR (EARL LOREBURN)My Lords, as regards the last observation of the noble and learned Earl, I very heartily agree with him. I have had occasion to point out before that not infrequently in your Lordships' House and in the other House of Parliament when Members really cannot make up their minds as to what ought to be done in a difficult contingency, they say, "Oh, these words will do";—very often the words are the result of a compromise—"we will leave it to the Judges to decide"; and when the Judge, without any definite guidance, proceeds to put the best construction he can upon the enactment, he finds himself roundly abused for the gross injustice of his decision. As regards what the noble and learned Earl said on that point, I entirely agree.
The particular matter which is now before the House is, of course, very important, because it affects the shipping of this country, and this is by far the greatest shipowning country in the world. I think it is a very good thing that this matter has been brought forward. It is a principle of great importance. My noble and learned friend Lord Gorell has rendered most kind and valuable service to the Government in regard to this and other kindred subjects, and also he is certainly the first authority in this country, and probably one of the first authorities anywhere, upon this matter. The way it strikes me is this. You have to deal with the case of a 28 collision. Suppose that you are asked, irrespective of whether you can carry out the principle or not, what is the ideal principle. I suppose the principle embodied in this Bill—namely, that you should apportion the amount of damage to be paid to the amount of negligence—would be accepted as ideal. It sounds perfect. It has all the delightful flavour of ideal equity, and it is logical if logic is dissociated from facts. It commends itself undoubtedly to many wise men on the Continent and also to many people here. The difficulty is in carrying it out. You now have a rule, good or bad, which is defective in some ways, but upon the whole works well—the rule worked by our Court of Admiralty, by which you divide the loss. At all events, that gives people a standard by which they know how to measure what they have to do, and in most cases it is perfectly fair. It has that advantage. If you go to the other rule, and say that you are to apportion the loss according to the degree of fault, you find it most difficult. In the first place, you introduce a new element in litigation—namely, as to damages—and the next thing is that you really cannot say in many cases what is the proper proportion, Is one captain two-thirds more to blame than the other captain, or is it three-fourths? It leads to endless speculation, and it is a difficult, problem to solve, as you really have no standard of guidance.
My consolation is this. I believe that, in accordance with the power reserved in this Bill, in nine cases out of ten, perhaps in nineteen cases out of twenty, the old rule will be observed, and the loss divided upon the ground that the Judge will say he really cannot be sure which of the two is the more to blame. I believe that will very often happen. But I do admit also that there may be cases—I think Lord Gorell with his immense experience will agree—in which the blame is almost nominal on the one side and the real substantial blame is on the other. In that sort of case you can say, "I think nearly all this ought to be borne by the one vessel." Perhaps in that case it may work out more equitable. I think the thing is fairly balanced between the old rule and the new. Certainly there is no injustice in the new proposal in this Bill. There are a great many people in this country who are strongly in favour of the new proposal. There is no doubt about 29 that. There are a great many people who can show cases in which the existing rule has been very hard upon one ship. In those circumstances, since this has immense support here and is most strongly supported outside this country, we do not really lose anything. I think that on the whole it will work quite fairly, and therefore I was glad to notice that my noble and learned friend did not obstinately resist the first clause, but rather thought, as a counsel of perfection, it might be better to remain as we are. I hope my noble and learned friend will not persist in his Amendment. Probably most people in this country think the change is good. Certainly it is the result of a Maritime Convention to which all other parts of the world agree.
§ THE MARQUESS OF LANSDOWNEMy Lords, I am very much convinced by the arguments to which we have just listened from the noble and learned Earl the Lord Chancellor, but I venture to ask him whether the Bill as now drafted exactly accords with those arguments. What I understood the Lord Chancellor to suggest was that as a general rule the equal apportionment of the damage between the two offending ships was the reasonable solution of the difficulty.
§ THE LORD CHANCELLORWill usually be adopted.
§ THE MARQUESS OF LANSDOWNEWill usually be adopted; but that in exceptional cases, where blame obviously inclined one way or the other, it was desirable that the Court should have the power of not dividing the damages equally, but making the balance incline more heavily On the one side than on the other. That seems to me a reasonable suggestion. But when I turn to the Bill itself, I find that in Clause 1 it is distinctly stated that the general rule is to be the rule of apportionment in proportion to the degree in which each vessel was in fault, and then the Bill proceeds to give a proviso that in certain cases where it is not possible to establish different degrees of fault the liability should be apportioned equally. It seems to me that the Bill puts the exception where the noble and learned Earl puts the rule, and the rule where the noble and learned Earl puts the exception. I do not know if it is worth considering whether any improvement in the drafting might not be possible.
§ THE LORD CHANCELLORIt really comes to the same thing. The rule that is wanted is the rule to apportion the damage according to the blame. That is done in the clause. Then it is provided 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. What I said, or meant to say, was that in theory the first is right, but in practice you will find you cannot do it in many cases. I believe that in ninety cases out of a hundred you will find that the old rule will in fact be applied in virtue of the proviso.
§ LORD GORELLAfter what has fallen from the noble and learned Earl, the Lord Chancellor, I propose to withdraw the Amendment. My main object was that your Lordships should be fully possessed of the various points before agreeing to the clause.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ Clause 2:
§ Damages for Personal Injuries [Collisions, Art. 4 (3).]
§ 2. Where personal injuries are suffered by any person on board a vessel owing to the fault of that vessel and of any other vessel or vessels, the vessels shall be jointly and severally liable for the damages:
§ Provided that nothing in this section shall be construed as depriving any person of any right of defence on which, independently of this section, he might have relied in an action brought against him by the person injured, or shall affect the right of any person to limit his liability in cases to which this section relates in the manner provided by law.
§ *LORD GORELL moved to insert the words "loss of life or "before" personal injuries" at the commencement of the clause. The noble and learned Lord said: The Amendment which I propose is quite a small one, but it is of considerable importance in view of what comes later. This clause provides that where personal injuries are suffered by any person on board a vessel owing to the fault of that vessel and of any other vessel or vessels, the vessels shall be jointly and severally liable for the damages; but it is confined at present to the ease of personal injuries. I understand that it was believed that personal injury claims were subject to the same rule of proportional division as 31 I have explained. My Own view is that that is not correct, and I believe the opinion has been strongly entertained that there is no such rule of division in the case of bodily injuries. The provision I have read is put into the Bill here for the purpose of making clear that the rule dividing the damage is not to apply in the case of bodily injuries. Loss of life, too, is clearly a matter entirely outside the scope of any Admiralty rule. It was a matter in respect of which a claim could be made under Lord Campbell's Act. That Act enabled an action to be brought by the personal representatives of a person deceased by negligence, and compensation for that loss to be recovered against any person who was to blame, and therefore it could be recovered both jointly and severally. It may not be strictly necessary to insert the words "loss of life" here, but I think it is necessary when one comes to the further clauses of the Bill. Certainly there can be no harm in stating that in respect of loss of life the owners of the vessels shall be jointly and severally liable. If your Lordships turn to Clause 3, you will find that it is in accordance with the scheme of these Conventions that if one owner is sued and pays the whole of the loss in respect of loss of life or personal injuries, he may turn round on his co-wrongdoer and get from him a contribution in proportion to the degree of fault. I think it is desirable that Clause 3 should have intelligibility given to it by Clause 2 being amended in the way I suggest.
§
Amendment moved—
Clause 2, page 2, line 15, after ("where") insert ("loss of life or").—Lord Gorell.
LORD HERSCHELLThis certainly seems an improvement to the clause. The Board of Trade are grateful to the noble and learned Lord for the trouble he has taken in this matter, and I have much pleasure in accepting the Amendment.
§ On Question, Amendment agreed to.
LORD HERSCHELLThe object of the next Amendment and of several others which I shall propose later is to avoid as far as possible the use of terms personifying a vessel. The wording of the Bill was adopted in order to follow as closely as possible the wording of the Convention, and the use of language personifying a vessel has to some extent a precedent in 32 the wording of the Judicature Act, 1873; but Lord Gorell has pointed out to the Board of Trade that the wording in the Bill in several cases goes beyond these precedents. Consequently these Amendments have been put down so as to avoid, as far as possible, language which may be regarded as too colloquial.
§
Amendment moved—
Clause 2, page 2, line 17, after the first ("vessels") insert ("the liability of the owners of") and leave out ("jointly and severally") and insert ("joint and several").—(Lord Herschell.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Clause 2, page 2, line 18, leave out ("liable for the damages").—(Lord Herschell.)
§ On Question, Amendment agreed to.
§ LORD GORELLThe next Amendment standing in my name is consequential on the introduction of the words "loss of life or."
§
Amendment moved—
Clause 2, page 2, line 22, after ("injured") insert ("or any person or persons entitled to sue in respect of such loss of life").—(Lord Gorell.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3:
§ Right of Contribution. [Collisions, Art. 4 (3).]
§ 3. Where loss of life or personal injuries are suffered by any person on board a vessel owing to the fault of that vessel and any other vessel or vessels, and a proportion of the damages is recovered against one of the vessels which exceeds the proportion in which she was in fault, she may recover the amount of the excess from the other vessel or vessels to the extent to which they were respectively in fault:
§ Provided that no amount shall be so recovered from a vessel which could not by reason of any statutory or contractual limitation of, or exemption from, liability, or which could not for any other reason, have been recovered from that vessel in the first instance as damages by the persons entitled to sue therefor.
§
Amendment moved—
Clause 3, page 2, line 28, after ("against") insert ("the owners of").—(Lord Herschell.)
§ On Question, Amendment agreed to.
33
§
Amendment moved—
Clause 3, page 2, line 29, leave out the second ("she") and insert ("they").—(Lord Herschell.)
§ On Question, Amendment agreed to.
LORD HERSCHELLThe insertion of the words "by way of contribution" which I propose in my next Amendment is intended to make provision as to the manner in which a contribution under the clause is to be recovered. The words "by way of contribution" enable the person entitled to the contribution to bring in the contributories as third parties.
§
Amendment moved—
Clause 3, page 2, line 29, after ("recover") insert ("by way of contribution").—(Lord Herschell.)
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Clause 3, page 2, line 30, after the second ("the") insert ("owners of the")
§ Clause 3, line 31, leave out ("they") and insert ("those vessels")
§ Clause 3, line 32, leave out ("from a vessel")
§ Clause 3, line 35, leave out ("from that vessel").—(Lord Herschell.)
§ On Question, Amendments agreed to.
LORD HERSCHELLIt is thought that the new subsection which I now move, and which contains an express saving for third party procedure, will meet a criticism which was made by Lord Gorell that Clause 3, as at present drafted, does not make it clear that there is a right to proceed in rem as well as in personam.
§
Amendment moved—
Clause 3, page 2, line 37, after ("therefore") insert as a new subsection—
(2) In addition to any other remedy provided by law, the persons entitled to any such contribution as aforesaid shall for the purpose of recovering the same have, subject to the provisions of this Act, the same rights and powers as the persons entitled to sue for damages in the first instance.—(Lord Herschell.)
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Clauses 4 to 6 agreed to.
34§ Clause 7:
§ General Provisions.
§ 7. No action shall be maintainable to enforce any claim or lien in respect of any damage or loss caused to a vessel, her cargo, passengers, or freight, or any property on board, by the fault of another vessel, or in respect of any salvage services, unless proceedings therein are commenced within two years from the date when the damage or loss was caused or the salvage services were rendered, and an action shall not be maintainable under this Act by any vessel to recover from any other vessel her overpaid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment:
§ Provided that any Court having jurisdiction to deal with an action to which this section relates may extend any such period, to such extent and on such conditions as it thinks fit, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the Court, or within the territorial waters of the country to which the plaintiff's ship belongs or in which the plaintiff resides or has his principal place of business.
§ *LORD GORELL moved to omit the words "in respect of any damage or loss caused to a vessel, her cargo, passengers, or freight, or any property on board, by the fault of another vessel," and to insert the words in his Amendment. The noble and learned Lord said: This is really only a drafting Amendment to make plain what it is intended to deal with. The Convention provides that actions for the recovery of damages are barred after an interval of two years from the date of the casualty, but as at present worded I do not think the clause adequately includes all who ought to be dealt with and not allowed to sue after two years. My Amendment will give effect to the whole provision, and prevent actions being brought after two years by all those who are interested either in property, or life, or personal injuries.
§
Amendment moved—
Clause 7, page 3, lines 30, 31 and 32, leave out from ("lien") in line 30 to ("vessel") in line 32 and insert ("against a vessel or her owners in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault").—(Lord Gorell.)
§ On Question, Amendment agreed to.
35§ LORD GORELLThe next Amendment is consequential. It is necessary to add the words proposed in order to cover personal injuries.
§
Amendment moved—
Clause 7, page 3, line 34, after ("loss") insert ("or injury").—(Lord Gorell.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Clause 7, page 3, line 30, leave out from ("Act") to ("over-paid") in line 37 and insert ("to enforce any contribution in respect of an").—(Lord Herschell.)
§ On Question, Amendment agreed to.
§ LORD GORELLMy next Amendment deals with a matter which requires a moment's consideration. In the Convention which I have before me there is this provision, that the grounds upon which the periods of limitation—one being the two years already mentioned and the other one year—may be suspended or interrupted are to be determined by the law of the Court where the case is tried; and, further, that the high contracting parties reserve to themselves the right to provide by legislation in their respective countries that the said period 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 defendant has his domicile or principal place of business. The clause as at present drawn only gives a power to extend in the one case where the Court is satisfied that there has not been during such period any reasonable opportunity of arresting the defendant vessel within the territorial waters of the country to which the plaintiff's ship belongs or in which the plaintiff resides or has his principal place of business. My next two Amendments have for their object the giving to the Court of a wider discretion. It is not desirable that the only case in which the two years may be extended is where there has been no opportunity of arrest. There might be cases of the death of owners and difficulties of that character, and the time might elapse before matters were put straight. It seems to me desirable that the Court should have a more general extending power than is at present conferred by the clause. The other alteration is not that 36 the Court "may" extend if there has been no opportunity, but that it "shall" extend. It seems to me that the Court ought not to be left to exercise its discretion if there has been no opportunity at all within the two years of arresting the vessel. There ought to be a right to an extension, such as the Judge thinks fit, which will give a reasonable opportunity of arresting the vessel.
§
Amendments moved—
Clause 7, page 4, line 1, after ("fit") insert ("and shall")
Clause 7, line 6, after ("business") insert ("extend any such period to an extent sufficient to give such reasonable opportunity").—(Lord Gorell.)
LORD HERSCHELLThe Board of Trade are under the impression that these Amendments are quite reasonable and that they would be an improvement. Therefore I have much pleasure in accepting them.
§ On Question, Amendments agreed to.
§ Clause 7, as amended, agreed to.
§ Clause 8:
§ Application of Act.
§ 8.—(1) This Act shall extend throughout His Majesty's dominions and to any territories under his protection, and to Cyprus:
§ Provided that it shall not extend to the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa and Newfoundland.
§ (2) This Act shall not apply in any case in which proceedings have been taken before the passing thereof and all such cases shall be determined as though this Act had not been passed.
LORD HERSCHELLIt is proposed to insert here a new subsection—it is really the subsection (3) which was taken out of Clause 1—to make it quite clear that the Bill applies in all cases coming within its scope—for example, that it applies equally in cases occurring in non-tidal as well as in tidal waters.
§ Amendment moved—
§ Clause 8, page 4, line 15, after subsection (2 insert the following new subsection—
§ (3) The provisions of this Act shall be applied in all cases heard and determined in any Court having jurisdiction to deal with the case and in whatever waters the damage or loss in question was caused or the salvage services in question were rendered, and subsection (9) of Section 25 of the Judicature Act, 1873, shall cease to have effect.—(Lord Herschell.)
§ On Question, Amendment agreed to.
37LORD HERSCHELLThe further subsection which I now move is rendered necessary owing to the introduction of references to owners of ships instead of expressions personifying ships. The owner may not be the person responsible for the damage. Responsibility also lies with the master and any other person to whose neglect the damage was due, and in certain cases the charterer would be responsible and not the owner.
§ Amendment moved—
§ Clause 8, page 4, insert the following new subsection—
§ (4) This Act shall apply to any persons other than the owners responsible for the fault of the vessel as though the expression "owners" included such persons, and in any case where, by virtue of any charter or demise, or for any other reason, the owners are Dot responsible for the navigation and management of the vessel, this Act shall be read as though for references to the owners there were substituted references to the charterers or other persons for the time being so responsible.—(Lord Herschell.)
§ On Question, Amendment agreed to.
§ LORD GORELL moved the insertion of a new subsection, to provide that proceedings in respect of claims for loss of life or personal injuries may be brought in rem or in personam. The noble and learned Lord said: This is a matter of considerable importance. Your Lordships will notice that there is in the Bill a right to proceed against the owners of vessels jointly or severally for loss of life or personal injuries. Now certainly for loss of life there is no right of process in rem, and this unfortunate position would result unless my Amendment is introduced. Take the case of two vessels colliding in the English Channel, one of which is a British ship and the other a foreign ship, and both of which put into Dover or London. The English owners can be sued in respect of personal injuries at Common Law; they can be sued under Lord Campbell's Act for loss of life. That is to say, the English owners can be made responsible in full. But how would they proceed to enforce any contribution from the other wrongdoer, he being a foreigner? Under the Bill at present they could not do it without suing him abroad in his own country. Therefore it seems to me desirable, from the contribution point of view, that any person who pays in full and can be compelled to pay in full shall have a right in rem against the foreigner and to enforce it in this country. Otherwise in all these cases it would be impossible to get at the foreign ship at all to enforce the contribu- 38 tion. Further, the Convention contemplates that the ships of all nationalities embraced in it shall have this liability upon them. I therefore propose the insertion of a new claim to provide that proceedings in respect of claims for loss of life or personal injuries may be brought in rem or in personam. The whole object is to carry out what is intended by this Code, that vessels which were both to blame shall be made to contribute; and there seems no reason why this should not include a right to go direct against the vessels, whether they are foreign or British.
§
Amendment moved—
Clause 8, after new subsection 4 insert new subsection—
(5) Proceedings in respect of claims for loss of life or personal injuries may be brought in rem or in personam.—(Lord Gorell.)
LORD HERSCHELLThis Amendment is one of substance, and the suggestion is of great value; but perhaps the noble and learned Lord would consent to the words "caused by default of a vessel" to be inserted after the word "injuries," so that it may be quite clear that the Amendment comes within the scope of the Bill. I would further suggest that instead of a subsection this should be made a new clause.
§ LORD GORELLIf the noble Lord will look at the Amendment which has already been passed with regard to Clause 7 he will see that it is so worded as to deal with cases where the fault of the other vessel is either whole or part. I am not quite certain that the introduction of the words which he now suggests would meet that case. It is quite possible that the proposed words would only relate to the case where the other vessel was wholly in fault. But if the noble Lord would agree to the words "caused by default of a vessel whether such vessel be wholly or partly to blame," I think that would meet the point.
LORD HERSCHELLI will accept the noble and learned Lord's Amendment this evening, and cons alt with him between now and the Report stage with a view to introducing any words which may be necessary.
§ On Question, Amendment agreed to.
§ Clause 8, as amended, agreed to.
§ Remaining clause agreed to.
§ The Report of Amendments to be received on Tuesday next, and Bill to be printed as amended. (No. 201.)