Coooittae of the Uhole held at the Cunard International liotel

INTER-GOVERNMENTAL MARITIME
NTER·GOVERNMENT
AL MARITIME
CONSULTATIVE
ORGANIZATION
:ONSUl TATIVE ORGANIZATION
r.m/COi'Th'. 5/C .J/sn. 5
4 1'.pril 1978
Orieil'l...1.l:
IN'l'Ei1NATIONt..L CONFE:Jm~CE ON
LOOTl.TIon OF LIABILITY ron
MlU'JTDtE OIJ.D3S, 1976
ENGLIslIjFnENcn
IMCO
Coooittae of the Uhole
held at the Cunard International liotel, lianoersDdth, London, W.6,
on flednesd.o¥, 3 Noveober 1916, at 2.40 p.r.).
Che.ima.n:
Me
B. BLOM (Sweden)
Seorlltnry-General:
Mr. C. P.
Seoretary:
Mr. T.S. BUS!IIl (IMCO Secretariat)
srJ.V1l.ST1l.VA (Seoreto.ry-GeneraJ. of IMOO)
.CONTENTS
1.r:enda. i ton 6 - Considereti0n of dra.ft International
Convention on Li~ta.tion of Liability
for Maritioe Claine (continueJ)
.... '
'
Fo ••easons of economy. this document is printed in II limited number. Delegates
•• e kindly 1lsi<lId to bring their copies to meetings and not to request additional copies.
!.mIaON!' .5/0 ,l/an. 5
- 2 -
J..GlilIDA :tTJiltt 6 - CONSlDEi\ATION OF Dli.i.FI' nlTEr..NJ;,TIONAL OONVJ:ilNll'IOl~ ON LIMITATION
OF LI.t.:BILITY FOR MlffiITIMIil CLt..IMS (oontinued)( IJ!JJ/OONF. !)/41
LliX:l/CCNF. 5/c.ll\~. 7, vIP. 12, W?16, W.22, vi'? 2~, \fI!.27)
( oontinued)
Artiole 2 - ClcH PB subJqot ~o Lioitg.tiop (oontinued)
Mr. cnOOIC (United States) asked wha.t was iDl)lied by ·the use in
pn:rcere.ph 1(0) of the phrase "riGhts other than oontractual riGhts"?
He
poinhd o;u.t tl'u.\t the phrase o.ppeo.red in the 1957 Oonv'w!tion, to ",hioh his
oountry WQS not 0. l?arty.
The CIIlllIlJwWi said that the oorreapondine provie.ion in the 1957 Convention
had been interpreted in aoos oountries as not refe1.'rinG to int'ritlGeoents of
oontractual richts, while the opposit\~ wo.s the ooee in other oount:r.iel3.
For the.t renson, the OM! hEl.d. propose<;l to olari.fy the. liIi tuation by insertine
the phrase "ri,ghts other than oontraotual ri6hts tl •
After discussion in
the Legal Coooittee, the phrase had finally been retained in order to exolude
c:tann.ae reaul tinG froo the infrin6"GDent of oontrootuo.l riGhts.
She SUlm'ested, with the agreeoent of the Frenoh delegation, that
ooneiderotion of the various propoQols
~elating
to
~icle
2 be ooopleted
before deo.line with the :F:renoh proposals (Lm/CONF.5/4 and
.. Lm/CONF • 5/c •lilt.' .27) which had just been oiroulated.
It
was
so
deoid~~.
The C4t;,Jl\f!1l'...N proposed that, subjeot to oonsideration of the Franoh
proposal relatine to ~rtiola 2 as a whole, p~ph (1)(0) of ~io1e 2
be approved.
It
was
so decided.
The'Cruu:rJtliU~
together.
proposed that parographa led) and l(e) be oonsidered
The Cooui.ttee had before i t a proposal by the Jo.pe.nose deleention
(Lm/COD. 5/C.l;\r~.16) on the subject of X'Gservationa ancl one by the
Cona.dian delecntion (:r..tOCt/CONF.5/C.J./WP.22). Sinoe the =epresentc.tive of
COl'..o.do. hll.d o.skt:.ld tWLt oonsideration of his proposal be doferred until after
Artiole 6 ho.d. bean discussed, oonsicleration of the United States proposal.
(Lm/CONF.5/C.l/VlP.'l2) relo.tillG' to the sane plll.'O(31'aphs would, with the
nereeoent of the United States deleeo.tion, also be deferred.
- ,-
LEn/C01-rl!'. 5/0 .l/sn. 5
Nr. T1:lrrICil,l!!l, (Japnn) introduoed h:te c.elec;ntion's prol)oeol for. the
add! tion to the final olc.uaos of on .t..rticle t-rovid.il\.1' for reservations on
.Artiole 2( d), (el and (f).
lle lc.:l.d I~ao.t e::4:plu'..eis on the proposoJ., sta-tina'
that, if the CoI"JO.ittee did not o.dIJi t reservations
question, his
Vovenn:l(~llt
W1
the su'b-pnrQ.BrS.phs in
would find i 11 extreoely diffioul t to acoept the
Convention.
Mr. 0.llJ.1VELL (Oo.na.da), VOintine' out that hie deleention hr.d subo! tted
an ooendnent to the Japanese proposo.l, said that he would :!?ref'er the
Cocci ttee to oonsidsr his deleeation's proposal a.f'ter the disoussion of
I~iole
6
~d th~
reservation'olause.
The C:U.J:l;MtJJ said the.t a D£l.jori ty of the OoIJOi ttee appeo..red to pl'ofer
to datU. with olniue arisinG troo d.at:lage to harbour wOl'ks at the sane tiDe
as those arising' frOIl ~ to all other typos of propo~ ooverod by the
Convention.
The CoDDittee would resune consideration of those questions
after it had exaoined 1.:.ctiole 6.
indioate
it~
She euaeested that tho OoIJOittee should
preferenoes for the various alter.natives whiCh had been
disoussed duru16 the previou!3 noetina' in relaticn to olo.ioe foI:' doDa8'e to
ha.rbour works.
It was
§Q
de2iQ,od •.
'l'he result oJ the show: of honds was os follo . .m;
(i)
(2)
Those favourinG the total exolusion frOIl the Convention of
olo..ins refen:ed to in paragraphs (d) and (e)
Those prefar:t'l.n.g the inolusion of a. reserva.tion olause
2
10
(3) Those fe,vourin(3" the inclusion· ot suoh olaine and (;ivin6
theo priority wi thin the soope of .Artiole 6
6
(4) Those favouriJ1g the treatoent o£ such claios equally
wi th other property olo.iDs
11
Hr. CUOOK (United States) introduoed his daleea.tion' S OOf.Jl:.1ents
(LEG/CONF.5/C.l/WP.2}) drawing attention to the relationship between
Lrtiole 2(1)(£) and Artioles 12(5) and 3(b) and SUGcresting that SODe
ElDendnent of the fomer IllGht be neoessary, depend.:l.ng on the deoisions taken
on the two latter provisions.
Claine ariein8' out of dc.t'..l£l.8'G co.uaed by oil
- 4 pollution shoulc:. perhaps be trea.ted 1n the awe
w~,
the prinoipla on
Irlhioh the 1969 Convention had been based having criven rise to aooe ori tioiso.
"
,
L
.Mr. SELVIG (Nol'.'lill¥) thoUGht, on the oont~, tba.t the provisions to
wbioh the Unit ad Sta.tes representative had refer;red were quite 'UlU'elated
and oonoamed d!f'f'erent 01$8. ' Undel' Artiole 2(1)(f) t anYone who had '
t:lken ueasures to n1n:lnize a.
lOBS
oould apply to the fund for reioburseoent
of his expend!ture i t the· ,Penoll l;f.D.ble be.r.l liDited his lio.bility.. AIiJ
f~
as the olaiDs roferredto .t.nJl.rtiole 3(b) were oono.emed, not a.ll were
oove~~d by thQ
1969 Co~vention. !my ~enses incurred in the oirou,ostonoes
provided for in l~iole 12(5) ranked equally with acy other olo.iDson the
fund.
l-tr. CAHVELL (Ca.ncila)t~t
that the oatter oould be ola.rified by
.
, :
aiDple draftinc Q.Pendnent tp SUb-1iI;lX~aph (£) so that it reads,
0.
"ola.ins
for further loss oo.uead by the oeasures ta.ken".
Mr. I![IUlllWJ)E (Argentina.) endorsed the reoa.rks of the NOr'l'loOian
representative,. there was a olear distinction between the situations oovered
by i~iole 2(1)(f) and Artiole12(5)respeotively.
Lord Dn"LOCK (Un! ted Kineiioo) pointed out that the Convention was not
desiened to or.eate liabilities, but sioply to linit liabilities a.rising £roo
national le6islo.tion er ether inta~tional oonventiens. Tho provisions of
1...rtiole 2( l) ( f) oarto.inly did net ioply toot sODoone who, on beho.lf ef th,",
persen liable, had taken ceo.sures to oiniuize less oould not olaiI:.l for the
full loss a.cninst the perso.n liable.
Mr. CLEl'Ol~ (Netherlands), oor:nont1nB on his delegation's observations
(LmG/CONF.5/0.1jWP.7), said that the question of preventive oeo.aurGS appeared
even nora oo.nplioo.ted when oonsidered in oonnexion with the provisions of
the 1969 Interno.tionol Convention on Civil Liability for Oil ~ollution
DaDQ(3'e, sinoe thnt Convention provided for a. single type ot clnio only,
whereas the present droft provided for several different typos.
The wo::f
in whioh sub-paragraph (£)wa.e to be interpreted wst be uade cleo.r.
Obvioualy, i t oould apply only to clo.il:u'J subrd tted by sooeone ether than
,
the person a.tteupting to liuit his liability, but it was posaible for the
oeo.aurelll whioh' had caused the further lo.SS to have been ta.lcen by the person
liable.
Clo.itlS against the person liable in respect of suoh further dm:w.ge
Lm/COi.iJli'. 5/0 .l/sn. 5
- 5-
should oleo be subjeot to lioi tation, as hoo onere'cd !'roo the disoussions
at the
twen~eiGhth
soaoion of the Lecral Coocittee, where deleGations had
not accepted the oxoessively
hOO been criven by the eMI.
n~~w
interpretation of the provision whioh
Ilia delecntion rO{3'll1'e.ed it as of the .first
iDportanoe tb.."I.t a. wiele neo.sure of acreeoant should be reo.ohod on the
06/tl.Il.1.nG o~
the
sub-p~a.ph.
The sorJO eub-poracraPh also oovered olaine 060inst·the person 'li~blo
by sooeone who had taken preventive neo.sures by virtue of
toot person.
a. contro.otwith"
Those olo.ins oUGht not to be subjeot to lini tation as, if' they
wore, the effeot would be to disoourage people fron enterincr into suoh
oontracts •. , On the oontrary, the servioes rendered ouc;ht to be paid for in
tulle
It wn.a for tho.t reM on tho.t his delegation had proposed the add! tion
to Artiole 2(2) of
0.
sentence providing that there should be no linitation
of liability in suoh oases.
Mr. enOOIe (United States) said that the disoussion hOotl olarified ~tte;t's
and it now appeared that there was not in faot
Q.l~ r~lationship
between
the provisions of l~tiole 2(1)(£) and those of l~iole 12(5).
Mr. novA! (Franoe) said that,
tho nattor.
h1~ ~eleaation still hp4 Bone doubts on
tccordin/j to the interpretation put forward by the liletherlands
deleeation (LEn/COUF.5/C.lj\.rr.7), Artiole 2(1)(f) dealt with olo.i.D.s preseJ,'lted
by
per~ons other thun tile person seekins to 110i t his Habili ty.
That was
one interpretation, but tho provision oould o.1so o.pply to oloir.lS presented
by the person EO-b1e hiuself.
It would therefore be prudent to specify in
paragrapl: (1)(f) tha.t it appliGd to uensures token by sooeone other. than
tho person liable who had not entered into aoontrsot with the latter.
Otherwise, it ,.,ould be too easy to oirounvent the provisions by enterine
into C oontraot with
0.
third party who hiuao1f niGht benefit fron the
linitation of lia.bility.
That interpretation was .obvious in ,tho oo.se of
paraernphs (1)(0.), (b), (0), (d) and (e), but less olear in the. case of
sub-paragraph (£).
The position ought to be apel t
out in order .not to
revert to the situation provided for in l~iole 12(5).
Mr. WISl.fJ.LL (Liberio.) was equally dissatisfied with tho provisions of
sub-po.rag,raph (1)(£).
IIe tully shared the views of the United. K!ngOno
representa.tive, na.nely that the sub-paragraph added nothil18 to uhat was
LEG/CuNi. sIc .1/an. 5
ooutQ.inod in par.n. ,'''Z'apb
.
(l)(a).
- 6 ""
lie ~""l'eeJ. tho;t there
bew&en parD«J,'aph (1)(.1') and Artiole 12(5).
no t1ireot rolation
\'IOS
In lUa vi(n'l, the LlO.tter oould
be settled by oore:1'u.l redra.t't1n8 0.1' paxt\G"L'o.ph l( 0.) and the .addi tion to
pa.ra{)rl).ph (1)(£) of the worda " ••• inoludil:lg lose <?a.used by DOo.SUX'ee
• ••
"t
th'J.s avoid.i.ng.o.ny contradiotion wi th ~l.rtiolo 12( 5) •
The. CIU.IrJ·U.l{ pointed out toot the relo.tionship betwoen po.ra.araph (1)(£)
and f~tiole 12(5) had o.lao been disoussed by thQ LeG~ Cot~~ttee.
SODe
delegations had thouGht the wording of poroarnph (l)(f).laoked preoision
with
reG~d
to loss suffered by the parson to.kine oeasures to avert or
Dinioize loss.
The Lesal Conoittee had retained the
pre~ant
text beonuse
IJa.tV del eaati on a had str.essed tha..t the words "tho person liable" oould not
refer to the owner 0.1' the ship, sinoe the shipowner could not ,be Ij.able. to
hipaelf.
In view of the confusion over the issue tha.t still existed, an
a.tteopt to olarify the text seaned to be wise.
It wa.a
0.
Q.ro.:f'tin6 oatter
on whioh the deloGations of Co.nada., Franoe and Liberio. hc.d !Je..de SUCl3'estions.
She noted that no objeotion had been nade to the substanoe of the
aub-parasraph, and asked whether it could now be oonsidored to have been
approved in prinoiple by the OoIDi ttee.
The Dra£tin8' Cow! ttoe would than
be invited to oxanine the question of drattine.
LOl.'d DIl'LOCK (Un! ted Kin6Uon) wished to revert to the question of
prinoiple rniaec1 by the Netherlands deleaation in :r.m./COO". 5/C .l~r.t'. 7.
He
thoueht that D.l'lY ODeIl<lr:lent to the text Ou@:lt to I:l£\ke it olear that the
provision was not applioable solely to Deasures token by third l)arties.
The
~~
noted that the Netherlands deleGation appeared to be
satisfied with the varioqs explanations 8'iven, and asked whether the
representative of.the United Kingdon really thoUGht sooe auendoent was
required.
Lord DIl-WOK (United Kitl(;'dou), while not desiring to enend the draft,
pointed out that at lenQt in Enalish law it
was
not
alw~
aooeptable, in
interpretinG the text of a oonvention, to refer ba.ok to the prepara.tory work.
The Convention should be so olearl~ drafted that it oould be understood
,,,ithout referonoe to other texts.
LEG/COlITi' •5/C .l/an. 5
- 7-
zYIr. JLlCUllEL (F:.r."C.o."lcc) endo:r:seu tho ooonents of tho United Kil'l(~'dOO
representative which wo=o in line with the provisions rel~tincr to the
interp:r:eto.tion of oonventionJl oontained in the Convention on the IJo.\V' 01' 'l'roo.ties,
aooord.i.n6 to whioh the prepara.tory work was oonsidered ~s a subsidiary o.id in
the interpretution of the text.
There wcs therefore every reason to olarity
the text of the Convontion itself.
Eis doloantion hud bean eroutly interested by the very vertinent analysis
of L.rtiole 2(1)(f) IJiven by the Netherlands dele6~tion (r.oo/COU]\ 5/0.1;\'1.1:>.1),
and supported the
pro~osed
anendoant whioh it oontained.
Mr. l'El.illi..laS (Greeoe) endOrsed tho reoarke t::lade by tho United Kinedoo
represent~tive.
lle added that, in his view, paragraph (1)(r) trlght be deleted
even without aoencling parucraph (l)(a), provided that the brnclcets in tho
latter were reDOved. ITe thoUGht that th~ oatter could be referred to the
Drcfting Oouuittoo.
Nr. nELl (Observor, OMI) spealdI10 at the Cho.i:rtlall'a invitation, said
that, after listeninc to the representative of Groeoe, he \"is11o(l to nake a
fow ooments sinon the Cl'IT had been ooncerned with draft inc; the provisions
in question.
So far as oos't nationo.l lecrisl6l.tion was oonoernetl, tho
provisions of Lrtio1e 2(1)(a) and l~icle 12(5) wore adequate to oovar the
various oo.aes, but the positJon wo.s not the
SODa
in Soo.n<linavia, for exoople.
Moreover, even if 1ioitation of liability was invokeu in. error on the basis
of .Li.rticle 2(1)( r) rather tho.n on that of ;..rtiole 12(5), tho consequenoes
would not, in the entl, be particula.:x.'ly s.erious.
I'ir. SELVIG (Kurwo,y) thoUGht that the disoussion had ShO\ID thnt
paroeraph (1)(r) was inportant in ita own right, irxospeotive of the other
provisions.
1:0 would therefore prefer to retain i t. ~'l.s far as clains
suboitted by soo€one other than tho person liable were concerned, the
inportont point was not who took the oeasuros but who oa.cle the olo.1os.
his view, cloins Dade by
0.
In
party to n contract acninet the porson liable,
before reouneration, should not be subjeot to lioitation.
:w.:xz/CONF.5/C.l/SR.5
Mr. ITURRALDE (.:~gentins.)
- 8 -
In general agreement with the No:rwegian
represent~tive that part~aphs (l)(n) ru~d (1)(£) related basioally to the
same claima.
Ire thorefore pz'Opoaod inserting tho provisions of paragraph (1)(1')
in paragra.ph (1)(0.) so as to make a single paragrc.ph.
Mr.
wt'I.S
~CIS
(Greooo) acid that he had already su«gosted delating
pa.roero.ph (1)(f) \v-hioh he did not regard as essential.
The CHAIBM.llli thought that it must be made olear tha.t po.r.a.grcph (1)(£)
rolated only to oloima made by somoone other tbQn the person liable. It would
be for the Committee to deoide whother the text should speoify thnt paragraph (1)(£) olso o.pplied to co.ses where the meo.aures had been taken by the
person lio.blo but ho.d oaUl~ed drunaga to a third pOl.'ty. She askod i£ othor
dologntions Bupported her proposal.
As only two deleeations supported the proposal tho C1:IAIBNAN proposed that
tho Drnfting Committee would not be asked to amend tho text of pcxagraph (l)(f)
along tho lines S1.l6'8'0sted.
I] )fg,s so q,ocigeq.
Tho ~~~Ullq invited the Committee to oonsider the amondment proposed
by the Netherlands delegation (.Lm/CONF. 5/C .l/WP. 7) on whioh a number o£
speak~rs had already commented.
Mr. CLETON (Netherlands) said that some delegations
had pointed out that
the amendment was p0rhups wider in soope thSZl the sponsors had realized, for
it failed to speci~ tho.t it dealt sololy with olaims relatir~ to the
renrunero.tion of pnrtiea to a contract. Cleurly, the soope of the amendment
had to be limited to olaims of that nature, and that was .the ver,y objeotive
of the amendment.
Tho Nethcrlo.nda omengment (r.:ro/CONll'.2Lc.l/WP.l) '''As IlRproved.
The CHtURJ.iUJ.i invited the CoIllUli t.tee to consider the J o.ponoso proposa.1
(LID/CONF. 5/C .l/WP .16) •
Professor Tl.NIK1lWl~ (Japan) said that his delegation t s proposal would
authorize any State to reserve the ri~lt to exolude the application o£
Article 2(1)(£).
The Japcnese Government oonsidorod that rooognizing
limitation of l1Gb1lity for claioe in respeot of preventive meo.suros eight
LFIlJ/GOlt.il!. 5/o.1/Sn • 5
- 9 lmve a. diasuo.aive' r'JUeot and disoourage 'the taldl'lG
should, therefore, be no Hoi te.tidn
" .1
WQS
nr,. t
ot
of~ suGh oea.sureej..'·
The;ll'e'
lic.bili ty for IJla.ims in reapadt of
•
o.ppr~.
!I'he' CH!UmU.N invited the CotTli ttee to oonsider tho dra.f't onendnents
propos~~
l'lY the 'French
d~legD,tion (Lm/CONF.5/C.~.j\VP.27).
'.
'\'
Mr. DOUI..Y .(Franoe)introd\,1.oiJ)gtlle ]'ranch propoa~i3, .ask.ad.. de1egat:i.ona
•.t9 il}.~el;'t, on page S of d.oOUr:l.en~ l'.JjX;lq~.5/4, the ao~doante proposed in
cW9~ent LE&/COlJJ!'. 5/CJ .1/WP. ?7.· . Tho prQposed Fronch. tez!; for il.rti..l1e 2( 1) .
OOl1-teUn~d.
two pa.ro,grapha
nuobe:rro~,
,1 noli 2 whioh were
.;.n
faot liiub-parll(p:'aphs
91' ~\.rtiole 2(1). and night be. qore oonveniently listed Q'" .(a.) and (b).
Paragra.ph 1 covered sub-paragraphs (0.) and (0) of tho basio text, reoapi~ulat­
ing all their substanoe but in aiopler Ill1.d oore general foro.
.
'
It dealt
.
\ofi th
liability to contraoting parties or third parties ,in cases of daoage dir~ctly
oo~eoted
wi th the llavigat!nn or operation
?f
the snip or with sal.vage
operations~ \'Ihatevor the basis of that liability.
par~aphs (b),
The French
text, except
Po.ragrnph 2 ocverod' aub-
(9-) and (a) of the basio text.
pro~osal,
ro~diIlC'
ho notod, Qado no substantive ohangos to the basio
paragL'aph 1 of the French delagBtion t s prop,osed text
and sub-paragraph (~) of the<basic text.
1.rtiolo l(l)(b) of the
It should be rooOlled tha.t
1957 Convention spoke of "infringeoent of My rights".
,
.
I
The basic text bofore tho Conference had soUC'ht to clarify the exprossion "any
rights" 1 ond it aooorclirlgly referred spe'6ifioally in sub-pnragraph (0) to
"rishts other than contractual rights", refleoting
0,
restrictive interpretion
of the ,1951
Conv~ntion, Q.S
confimed.
J,'rance oonsidered. that the expression "any rights" c.pplied
oontract1.ull
and.non-:con~ra.ctual
French
dQl~gat~gp
rest:l\'i~ti va
the NorweGian representative bad inoidentally
rights al4te.
1:0
Tbe :tGXt. suboittu<il.l.iy. the
followed that of the 1957 Convention, and was less.
:hh.o.tJ. tl+e l;Ic.sio text. '.
In short, there are· two qUestions a.t :.I.ssue.The {'irat wosene of
substanoe.
r
did dEiiel,jo,1Iione want a broadar interpreta.tion df the 1951
Convention dovering oontl'o.otusl rights .... an inte:r.'protl:ition:t'o£loot~d. in the
Lm/OOD. 5/c.ljsR. 5
- 10 -
text subQ1ttod. by ~oe - or did they wont a DOra restriotivo one, in whioh
oase sub-~ph (0) of the OOsio text ~ould be adopted ~bjeot to
dreJ'tU1(). The second question wa.s tha.t of the foroulation or the text. The
Frencm delegation obviously preferred its own DON suooinot text, whioh
obviated the need for tedious
repet1ti~
Mr. Ml~VSKY (USSR) supported the Frenoh proposal whioh was indeed
olearer and deserved oareful oonsidera.tion.
The difference between the
French text and the basic text was one of prinoiple.
Neither the 1924
Brussels Convention nor the 1957 Convention prevented shipowners troc liciting
their Habili ty in oasee of
intr~ent
of oontractual rights, al thoush there
ho.4bean different interpretations of the provisions. In prllOtioa, however,
the laws ot various oountries, inolu~g the OSSR, provided for licitation of
Habili ty in suoh cases. '!'hat prinoiple deserved to be maintained snd olea.rly
stated.
Mr. lI.ERBER (::&'ederal Republio of Gema.ny) aleo favoured the Frenoh text,
whioh he found ea.tisfllCtory.
It was true that, undor tho laws of Dost
oountries, infringeoent of purely contraotual r~ghts would not give riSB t"
01ai08 for OOI:lpensa.tion; but suoh cases oight ooour. The point to be bome
in Dind was tha.t -the Conference was d~aft1ng a Convention dealincr not with
liability but with the licitation of liability and olaios.
Mr.
Mti:tLmR
(Switzerland) endorsed tho legal position of the French
delegation, and in general supported tho redraft of the text subui tted by
that delegation.
Ya-. 11MOROSO (Italy) found the Fre:p.ch proposal acoepta.ble both 1"1 fom
and substonoa.
Mr. SELVIG (No1'WEl\Y') was unable to support the French IJroposal whioh
involved. the substantive questiollS of what could be very large olaitlS.
If
the liability arose tron failure to execute a oharter-party or chartering
agreaoent and the resulting daDage was of a oOL~eroial and. not oateria\
nature, oUBht it to be subjeot to liW.tation?· It was a question which 'hM.
been discussed tiDe and ago.in.
Then tbero was, the question of indiroot
dm:u.la'e ~aused to a third party. The 19~4 Convention provided for licitation
ot l1a.bili ty in oasos where the la.tter orose troo "a. fault of naVigation
r...oo/COHF. 5/C .l/SR. 5
- 11 -
eonui ttad in tl!o exocution of
0.
oontI.'a.ot".
Tlao
1957 Convontion, whioh ha.d
Bot itaelf the task of ui.niuizin6' 01o.L1El subjeot to lioi tc.tion, had exoluded
p~ioular ,~tO&~r.1.
that
In his view, that wns a.
reason.~bl~
solution,
oonsidering in partioular tha.t tho uoount of such ol0i0e delJonded entirely
on the olauses of a contraot fr.oely ooncluded by the
ehivo~er,
and oight be
very large indeed.
Mr. BURSLTIY (United Sta.tes) agreed with the NorweeiElll representative
that cInius arising out of a oontra.ot oight well be oonsiderablo.
United
States legislation ruled out 1initation in such ooses, and his de1eao.tion's
understa.ndina '-las that th(l provisions of the 1957 Convention took a siDilar
line.
The introduotion of a new oa.teB'Ory of
0: o.itlS
into the teArt of the
Convention wos souothing his deloEtation could not aocept.
Mr. SUCHORZErvlSra (Poland) questioned whether the wording proposed by
the ]Touch delecrntion was really in line with the text of tho
1957
Convention.
If the tero "contractual obliQltions" "las useu, there-; wo.s (I, risk of its
being a.pplied, 6~, to salvors t reounera.tion or to the W06ea of orew oeubers
or other servnnts;
and that would be unnccopto.ble.
Ho would be glad for
olarifica.tion froo tho Frenoh dele6ation oonoerniU6 tlgTOeoont between the two
texts.
Mr. DOUlJ.Y (France) oX],)lainod tho.t with rerrard to the orew'e w~es, for
exo.cple,
oloir.~
were excluded troo linitation under the provisions of
j:t"icla 3( d), so tho.t contrc.ots of that typo did not enter into the uatter.'.
\-li th re6ard to aborter-partios and cha.rterine acroenents, whioh represented
the freely exprossod wishes of the parties ooncerned, the shipowner or the
shipper could
en~e
that all
o.~propriato
clauses were lllOluU8U.
As
f~x
as
Fronch shippors were concerned, thoy excluded tho applicc.tion of the 1957
Convention fl.'on their contraots whonever they oould. It W1..\8 thus already
possible to hnvo contro.cts in whioh lioitation of liability 'vas excluded. The
proposed Frenoh text would iopose no restriotion on the froodon of cha.rterpa.r.ty signatories.
i~S
for tho daooge caused to third parties, that was no
lOll&"J'Or oovered by oontraot, and it was ioposeible to f.l.void lioito.tion of
liability in that oonnexion.
L.oo/CONIt' • 5/0.1/8.11. 5
- 12 •.
0
The OIIAm.Nl.lJ inv! tod the Ooeui tteo to vote ul1 tho French prol~oso.l to
~'"tend tha scope of application of the provisions of l)oxagro.ph (1)( 0) to
oover the infriDGooont of oontrc.otual riGhts.
2
a.'Q§r9 were 3 votos in fa.voy;t" orthill ~ench proposal, 22
o.bsteutiona.
abE! pWP9§al wr;.s re.iqotad.
The Frengh prc)))Smq1 to redrRfj ,4rti91e
CfJooc10d bY
rmLcoNF. 5Lc.l/W£'.'7)
wm.:I.n§t and
,Cl} CL.F.X}ZCQNF.5!4.
WQ1...W~.
The meeting pose at 5.40 p.m.
~ 14ft