NTER-GOVERNMENT AL MARITIME :ONSULTATIVE ORGANIZATION

mmr&TIONAL OONFERGNCE ON L:OO:!MTION OF LIJl.:BILI'l'r JUR MARI'l'IME CUDlS, 1976 Oomm1 ttee of the Whole 'IMee

LEG/CONF. 5/0.1/SR.4 4 April 1978 Or:Lg1nal a ENGLISH

SUMMARY lUOOOIID OF 9 :roUR'm MfimlTING .

held at tbe Cunard International Hotel, Hammel'StIl1. th t London, W .6,' . . on Wednesday, ' , November 1976. at 9.,45 a.m.

Secrata.ry-General.

Secrot&x7&

Me B. BLOM (Swoden)

M1'~ C.P. SIrrVAST!J.VA (aeorote.ry...Qel'bral ot' 000)

Mr. T. S. :BUSH.ll.

#fNnda i tom 6 - Conaid.oration of dro . .f:'t Intel'n8tional Conv(mtion 2 on Limitation of Liability for vU1ritimo Claims (oontinued)

For "ilIOn' of Konomv. this document is printed in a limited number. Oeleglt81 are kindly alked to brinll their Mpies to meetings and not to request additional copi.,.

LEG/CONF. 5/e.l/sa. 4 - 2 -

.l.GENDl.. I'.IVl 6 - OONSI.OEBATION OF ~ IN'l!EBNL\TIONAL CONVENTION ON LIMIT1l.TION OF LIABILITY FOR Mt'i.RITIME CLAIMS (LlOO/CONF. 5/4, LEG/eow. 5/ 4/AdD..l-~t LEG/CONF. 5/c .l/WP. 9-11, Lllri/CONF. 5/e .l/WP .14) (oont.inued)

!~iolo 2 - CIP4Ps qubjeot t041!nitatio~

111'. ;LYON (Co.nD.da) introduoed his deleb'ntionts proposed aoondoent to

8Ub-~phl(a) '(rm/CONF.;/C.l;\Jl'.9), the ~se of whiO:b was to Unit

the scope of npplioation of the liu1tation to loss of life or personal

injury ooourr1n6' on board shiJZ.

~o .:i.noa.~1on of daI::lage to harbour wor~, basins and w.ta~-ro.ys WQ.s

subjeot to resolution of the qUQstion of the risht to enter reservations in

respeot of those itens.

The CBA.IRMAN o.sked whether a.ny delegation would 8eoond the Ca.:nadio.:n

Pl.'OpoooJ..

Hc.y1ng received no support. the Cc.nn.dian mposal (LEG/CONF. Sic •• Wa?, 2) wo.a r.§!.1.2.2][tS,.

IJ:'he ClIAIRlW~, in connoxLn with tho Cc.n..'l.di1.Ul representa,t1 va's rcforonoo

t,_ reaorvo.tions, drew attentioll to the cOODents by ll.uetralio., the Foc1oral

Ropublio of GeJ."OlltlY end New Zealand (:r..J.OO./CONF.5/4 and Addenda) o.nd to the

Unitod states proposal (LEG/eONF.5/C.l/WP.ll). She suggested thnt the

Cou:ittoe new oonaider tho question of whether reaervntions relo.ting to

cla.:lns oonoerning dD.r.lO.ge to harbour works, basins and wn terways should in

prinoiple be pe:rr::t tted or not, or whether Eluch olaine should be exoluded

fron tho soope of applioation of the Convention. She eophas1zed tho.t

al thOu@.l the deci sion would be 0. prolirrl.nory ono, it was neoess.o.ry to hnve

sone indico.t1on on that point since the auounts to bo inserted in Article 6

wo\ud depend on the decision. It would still be possible to re~~l to tl~t

question o.t a later stage.

Hr. BURSLEY (United Sta.tes) thought it olear fren the Unite,'" Sto.tes

proposal that his delego.tion's attitude to the question wo.s linked with tho

mture cf. the funds ava.!lo.ble under l..rtiole 6. He appreciated the Ch.mrr.lD.11' 13

reo.aoning, but the reverse also held ()'OOdl his own and a nutlbor of other

delogntions bad alrondy suagosted that l~iole 6 should be oonside~od early

on. It would bo diffioult to try to solve the probleL'l a.t the present stage;

- ; - r.oo/CONF. 5/c .1/Sn. 4

an(~ without a olear undaretand.ing of wlw. t 1l.rtiole 6 c!ght provic1a, hie

delaantion would have to oonsider the possibility of a reservation in

respeot of Artiole 2. That would not, of oourse, be neoGssary if the funds

provided under Artiole 6 were suffioient.

111'. BEBME.~ <-australia) endorsed the previous speaker's views. If' there

were at lelWt an indioation of the fiBUJ."Os likely to be inserted in

~rliole 6, be would feel freer to dieouss the' question of reeervo.tions. If

the issue woro purDued without such an indioa.tion, he nisht feel oonpellod

to propose the inolusion of a. reservation olo.use which eight, when l1Ttiole 6

we doaJ. t wi tb, prove unneoessary.

The CHAIRMAN pointed out toot a. sta.rt had to be na.de sonewhere and toot

it seoood logiool to start with the quest:lon of whether olaios for c'lc;:Jtlg9 to

ha.rbour works should be subjeot to l.1nita.Uon or not. It oOulcl wel1 be

a.rgu.ad thn.t no one eould take a. stand on tho figures until it wo.s knol'lll

'Whether the liI:lita.t1on BOounts should oove:r that kind of ~ or .aot.

Mr. row (Cal:uldll.) sa..1d that hie delegation was in the OBOe }position a.s the United sta.tes and Australian deleantions. There wore several proposals

which dependod on the figures to be inoludod in Artiole 6, and it would be

nora logioal to dooide on those fib~es first. He proposed a. prelir~

exchcn6~ of views of the fUnds tv be provided in Artiole 6.

Hr. BENDJENNA (Algeria.) ws not in fa.vour of the riBbt to enter

res~.tiona 1nrespect of liability in respoot of clains under parocraph l(d)

of !~tiole 2. In his view, liability for that type of olain should be

roaula.tod by general la.w relo.ting to Uoita.tion of liability. He olso

Dointed out that liability tor wreck reoova.l ni~lt be dealt with in a future

oonvention on that subject.

Hr. SELVIG (Norwo.;y) ag.reed with the Algerian representative's view thn.'!i,

in pr~.nciple, i.t was desirable for that type of lia.bility to bo subject to

lioi totion. Since the Un! ted Sto.tes, Austra.lian and. Canadian deleso,tions

diu ~ot object in principle to the inolusion ot such cla.ios in the lio1tntion

systew r..nd since disoussion of the rolevant figures would be ba.aod <m their

inclusion, there saeoed to be no renson why a. preliDinary decision should not

be tcl::en in toot reeard.

-4-

1111e CBAmMAN e.Jq)1a.1n01.1 tlult what ahe had had in c1nd we n preliu1.na.ry

inc'.1.oa.tion of pl.'eterenQtllh Representa.tives would bo tree to revert to tile

question ot resflrvntions, and the provisions ot the Rules of Prooedure

B'OVGrl'l.inB the reoonsideration of issues would not apply. A tenta.tive

de~ision was neoessary in order to facilita.te disOUBsion ~jf Artiolo 6.

MI:'. BERBli:R. (Federal Republio of Gel.'r.1a.IlY) agreed with the Cha1l:Dan on

the rela.tionship betwoen the two artioles and on the need for n pre110inary

decision on the question ot roee~tiona. The advantage of a. CoDCittee of

the \'111010 was that everything it £\ubDitted to the PleIl£l.I'y would be

preliu1.na.ry. As n result of the general deba.te, in which a. nunbor of

delegntions md referred to the likelihood of a. lio.biH ty lio1 t of nt l008t

doublo the lin! t in tho 1957 Convontioll, the Conferenoe now had BOnG ic.lea. of

tho o.pproximto lavals envisa.gecl. Ria own preferenoe would be to exolude

do.t:la.{,"G to ha.rbour works !ron lini ta.tion: oo.n;y countries would ho.ve

diffioul ty in ro.tifying the Oonvention if it were inoludod. He would,

hOWGVer - if' that wo.s the wish of the na.jori ty - SUPPOrt the inolusion, but

only subjeot to the possibility of n resorvation o.e in the ooso of the 1957 Convention. lH.s own and other oountries rat1!;Y!ll8 that Convention Imd

ontere(l raeervo.tions beon.use of their unw111inB'l'lese to be bound., but ho.c.l in

f~t 0Dplied the l1o!to.tion in prnctice. The possibility of entering

reservo.tione would r~nove unoertainty !111d would ensure that there WOoS no neecl

to rovise tho Convention at a later stau~ in the light of unfortunate

oxporionoes beoa.use acoount could be trucan of developoonts while still

conplying o.s moh as possible with tho Convention.

Mr. JEliliNEL (Franoe) said that in prinoiple his delegation did not

fa.vour a. lin! tation of liabil! ty for clt:uJa.eG to harbour works and for "Treok

reoovaJ.. In view of tho o.ttitudes of other delegations, however, and in an

etfort to tind a. oooprouise, his delesntion had subnitted 0. proposal

plo.oing olo.il:ls in respeot of d.aJ:lo.c'a to harbour works next in priority to

olaios in respeot of loss ot life and personal injury under Artiole 6

(LEF/CONF.5/4, l?lleS 13). If the propoao.l were a.ooepted and the ODounts in

.~~iole 6 were adoquate, his delecntion would not insist on n provision £o~

reservo.tiona. Tr..e problao of wreok re;::oval, whioh was oonnected "lith tho

problen of daoaee to hnbour worlts, should be doalt with in the vrosent

- 5 -

Convontion& the propoeeo. oonvent;J.on on ~ok rooo~. to which l.'()ter~lloe

had boen oo.dQ, had 110t bean elabQro.ted :yet an,d,no OnG know what it. ;woulu. oonto.:i:n.

Mr. NAm (Indio.) INa,)portec1 the UrtitoCl: Sto.tea proposSl: (LEG/OONF.5/0.1!vIP.n) and proposod that olair.u:f under BUb-p~pha (d) and (e) of Artiole 2(1) shoold

also be trcmafarred tb .Art:f,ole ,. As on alternatiVe, he wulcl support the

pl.'C'poaol of the Federal Republio '0£ Gernany. Goverments should ho.vo the

rid.'lt of roservn.tion in respeot of lini ts of l1abiB ty for fiet:X>v1ne wreolced .

or f.JI.l1lkon ships. dar.lBee to ho..'rbour WOl:lQ:I,. basins o.nd .terways, ,and to

n.o.vieo.t1un aids and bridges.

l.fr. mn'EIN' (Be'i(siuo), referring to the Un! ted Sta.tea propoaol

(L.llX;/CONF. 5/C. 1"lt..'P. 11) , said tho.t his'delt-antion had aJ.wt\ye BdV')Mted .

cvoit'l.i.nc' raeervnti'olls and on:ititru..ni.na' tho prinoiple of utlifoi'ri1 ty of rules.

Hie Govornt1Gnt ho.d ra.tified the 1957 Convention but htld not node uso of tho

l.·aeervation oltl.use. rn principlo, hiB' Obvernuent we in f&vour of inolu<lins

tho ola.il.J.s undor dJsoussion in the lil:::l. ta.tibn of lia.bil1 t:r. The French .

uolooation had suegeated 0. useful oor,vronise. Foiling so.tisfaction on thAt

Prol)()sc.l a.nd on the onounta tobs inserted in Artiole 6, his deleantion,

too, would be cO;~)$lled to reoonsider tho question of reservations.

Mr. MAKOVSICY (USSll) sa.id toot whilo tho Algorian reprasentat,ive hr.d.

nc.c.e on interesting proposoJ., he di")ubtod ita feusibili ty in vie\'1 of the

unoertainty over the outoooo of work on 0. oonventicn on wreok renovol.

Hith ro{:iQ.rd to the question of reservations under the present Convention

rGG'O-'L'<1.:i.na olo.1ns in respeot of dnr.1£l.6O to harbour works o.nd wrack l.'enovc.l,

the 01 tuD..tion bad e:roatly cl:ll:l.neGd in the past twonty yeo.:rs. ContJ."I.wtil1C'

Parties to tho 1957 Convention ~1 bad the ri6ht to enter resorvntiolW

raeoxdine applioation of tho ConvonUon'e rules to the. olo.:f.no in quostion;

but tho present u.ro.ft Convontion oovered a far widor l.'WJ8'O of i term for '\'/hioh

ola.ir.ls ::nBht be subjeot to OXOOl)tion troo tho Convention'. The poRi t!on

neoe.o(1 vary om.-o.f'ul oonaiderotion, sinoe publio interest was invol vou. Ho

bulievud thnt the Cox;wentioJ;l onowa. oovor .tho :pqssibili t1 of exanp~1on in

rosvoot of oltlios for daoo8e to harbour works and of re~buraeuent of tho

oost of raisinG and rcooving wreoks. ~le proposal in ~be footnote to Artiole 6 ueri tocl sorious oonsic!ora.t1on o.s tl possible oonprooise in tho prosOJ.J.t ai tuo.tion.

ulJ/OOD. sic. lIsa. 4 - 6 -

~'fr. \,IIB\UUJ, (Liboria.) enid 'bt oonventions with 1'eB01"'V'O.tiOllS wore 18e8

likely to enter into foro~ than oonventions without reeervntione, pa:rtioula.:rly

in the I.ltU"i tine field. A oonvention WQ8 intended to refieot Co8t'Qetlont

betwon part1.esf but to the mont t.ba.t it 1noluded rQservations. it , , r,

renootocl d1aa.areeuen1i. For those reasons his deleBQtiqn was o~posod in

prineil>le to roBo~tionat and i~ would do i~B bept to Boek Eloue otller

soluUon wtUoh would fNlt1sty ~ose 4e1oGl'tionl:! wbioh bQ.d expl:essed the

1ntontiOtl of ooking then.

Liberia. was f:1ml.y opposed tc. the axolusion of wreck renoval ola.:Los

.frau lio1 tation. A publio author! ty seldoo fJO,ve un] :101 ted :dBht of

recovery to sh:I.pownere ~n, fo~ exaor>lo, a. pilot had seriously a.aoo.aod a.

vossC'l; the 10SB wa.a \\SUlll.ly borne by the hull UDd.e:rwriters. It ~

ineqw:ta.ble, if' a vessel wo.s lost in. tl;le a.ppronop,oB to a.. ha'rbour, thAt the

port authority - tho body 'Which f.l()st barlO.f! t~d !roll bD.v1n5 tho £oJ.rwo,ys

oleo.r ... bore no reBl10nsibili ty for ole/lrillg tho? , It 'Ihou;td berOlJeUUerod

~~t the te1'Of of ~ioitation of li~lity undor U4soussion went fer beyond

o.ny ~;t.'ov1ously enViLsQ.G9d by, a, oonference. lIP did. not share the view

oxp;t.'l)ssod by sooe delegntions tbQ.t publio authorities ahould be :'101'0

fa.vourod tpnn priva.te parties in.~~~ respoot. He fa.vo~od the retontion

of 111.ilJ-j?a.ro.c;rophs (0), (d) o.nd (0) of 1..rtiole 2(1) and opposad the

SUCG~Btion thnt thoy ohould be ~ferred to Artiole 3.

Hr. 81M 110NG ~OO. (S1.nBa.pore) oxpressed hie deleention'e opposition to

0. lioi tc tion of liability in respeot of' ola.ills for ~ to ho.rcour wrks,

ba.aillS anrl wo.teI."W'(l.YS~ or for olo.1uS in rospeot of wreok reoowl. Cla.ius by

POl."'i; o.uthorities should be treated difforently fro!"l other ola.1oe, bOOCl.usG

thoy '\101'0 fino.nced bypublio funds, and booa.use the proI)er I:J£IJ.ntenanoe of·

ports wo.s of pa.rooount inportanoe to shipping throUBhout the wor::'u..

Sil').8tl.po~ ho.d nooeded to tha 195'7Convent:Loll in 1963, o.nd hll(1 foun<.1 tlw..t

tho Convention I a provisions re~ ola.:i.oa in respoot at da.t:.1/l.6G tq ha:ribo'Ul.' ,. , , ,'.

If 1 t were not· possibl.e for the Conferenoe to o.gree to GXoludG such

ola.i.l::lS .f'rotl the 11tJi tat ion of liability, SinB'apore would wish to l:.lO.ke a

reso~tionin ~~t regard. :

- 7 - LEG/OONF. ~/o .1/sH. 4

lIr • .t'\ltIlRbSO (Italy) said tbD.t his delegntion bad no 11kU:lg tor

resorvo.t3.on olo.uses, which it felt would weaken the ConTention. l.lthol..ldl it

opuld. crive' ~port to th~ Un! ted States prapoe~ to exolude ola.1.ns tor dono.~ '. . ,

ot 'tho.t typO frOo l!o1tation, it would pref'or the OO:IpronifJe solution

suaGOsted by tho Fronoh dele~tion - naooly, that a seoondary priority ,

should be B1 von to olta.1ms' for wah ~'under .Artj.ol~ 6, ,tollbwinB the

first priori ty a1 VOh to OloJ.ns ro~ llersonal injury.

Hr. l3ONDONI' (ArgentinE4) also fa.vo~ed avoidanoe of: rGsemtiona in

the iritoreets 'of a.ohieV'irl6 {nter.na.tio~ uniforr:ll. ty ~ the applioo.tion of the

Convcnticln. He supported tbo viows expressed by the dole£:,"Btione ot 1301aiun

c.nd ItoJ.y.

Mr.. m::rmEm (Fedeml UepubUc of' Geroo.ny) WOre hGs! tant to aooej?t tho

Franoh pmposal for 0. preterential J:O.nldnG of ports.' ola.ios wi 1i1lin tho tunt:. The choioe in toot lay between inolU<1i13B or exoluc1.ir.ag dLl.I:Ja.Ba to l'ltn'1:>our

worltB, ba.sina and wntf)~YS, o.ru::. 1lXlYthin(; outaicle tho.t ohoiofl ODounted to 0.

ros~tion. As had been pointed out by the USSll daloantion there DiSht o.t aoua ~ture do.te be 0. Couw:t~'lon on wreok reoovo.l, and it would be Uflof'ul

to inoludo a reservation in the present Convention to avoid possible oontliot

,·Ti th tho.t fu:turo oonvention. The Frenoh proposol would benefit port

authorities 'to the datrinent 01' other orod1tora wilera property clait~ wore

concerned, and that was UIltl.Ooepto.ble. If dllot.:l.B'e to harbours were exoluc1.ed

trau linitation, u.s pl.'O~oBe,j by the United Sto.tes, it would be to tho

det-ritlent o!the shipowner. It W"Juld be better it ola.iDs for c1.ooI:l[;'Ostv

public; \lOrks of 0.11 kincle ware ta.kall' out 01' the Oonvention QJ. to{3'l9ther \'11. th Go '

vimi to their inoluSlon in 0. possiiJle future oonVention.

lIt:'- VONA.U' (Poland) U(:;t'Ood with tho ltalia;n delegntion tho.t rasorvations

tor:.d.od' to wotl.kan the toroe 01' a 'oonvention. The proposal to e:A.-tenc.l tho

prioritios inoludod under Artiole 6(2) 1~ reoeived soue measure of support,

OJ.1.(1 he l-rJ.e .::>repared to endorse it, on ooncli tion tho. t tirst prior! ty \ro.s ei ven

to clo.:f.ns involvine huoa.n lite a.ncl toot elains reenrdill6 horbours o.nd '1'101.,103

ehoulQ ho.va 0. lower priority.

1·:!r. 'l1lOTZ (Geroa.n Doooorotio Republio), while welccnine the possibility

01' rN..i.n{J reoervnt!ons to the Convantioll, saw the oovtmt!l.6G 01' e. oooproDise

solution auoh o.s that prOl)()sed by Fro.nco. However, if olo.ins relo.t1nB' to

- 8 -

borbour d.o.I::Jc.se a.nd wreok rEltlOvol were to ho.ve priority under th£~t oonprooiae

solution, other property olo.ina would be- a.t a dil3o.dvantage. That probleo

oiBbt be OVE>roooe by dividing the fund for property cla.i~ into two p~s,

one for olains relating to l~age to harb0ur works and the like, and one for

all other property oloioa.

Mr. PEllRAKIS (Greeoa) su1.lD1tte,d that w~reQ.S tn,.oo,nventionlll of 0.

politioal nature the inolusion of reserva.tions wna to be enQouraaeu in the

interests of the a.tto.innent of pea.ot~lUl ooexifltenoe between nqtions, in ,of. • 1

technical conventions they were not acceptable beco.use the objeot~ve was , .".,'. , \

unifomity. His del0BOoUon supported the prinoiple of unbreolcable lirlits

beoause of th~ variaty of interprett\tions given by different oountries,

:ao.king it inpossible for undarw:t'itere or owners to foreoo.st whether or not

the lbi to.tion would be applied. He :pointed out that Dost na.jor dru:'.nge to

port installations and worlts ooourred t6 the . exolusion of o.tlY other type of

dt.n."l{;'e, such o.S personal injury. It was o.pproprio.te tho.t suoh ~ should

be covered by 0. fund whioh would be separate fron that 9stauliahod for private

property. Most property was illsured, and the coat of ola.itlS \rould b~ borne

by 'underwriters without tha need for subsidies freo owaers or t~~nyers.

His delesction felt the best solution was the cOD~rooisa proposed by the

Frenoh d(;)lo6Q.te, whe:t'&Uy J,!zoiori ty would be (3'1 ven to olaine involving harbour

installations only in oases '~lere publio authorities needed to recover the

oosts of 0. ont£l.etropbio inoident.

Mr. SEI.'lIG (I'lorw8\Y') saw the essrmoe of the Q:U.;lstion under cliQoussion as

being the .funotion to be per:foroed by a. global litli to.tiQn syatElD. If such

elaine were to be excl~ded, it did not neon they would not have to be

insuz-ed, but rtlthox that they would have to bo insured on en llnliui tad basia.

He feared that such a neo.sure would have on effect on the overall lio1 ts

o.pplioable in all OQ.S08. Ilow€;ver the Franch proposal would have the qost

detriDental effect on the overo.ll lioi t and the interests of other claioants.

Both the United States prulJosal ond the ]j'renoh proposoJ. were oec,ns of gi vine

preference to thosu cla.ios, ond hie d01effO,tion would prefer the latter inasnuch

as 0. trC'.llsfer to Artiole 3 would create too wch unoortainty.

- 9 -

Mr. ~ (Alec,rip.) wished to olo.;.i;f'y a. P,?int he had rw.do in an

earlior 1l1tervention. He was not in prinoiple opposed to the ;inolusion of

ola.:i.os for wreck .~vQJ. in the preSE'4lt Convention, but fe~ t tl¥lot such

olo.1Ds should 'be. Sl,lbjaot .to 3,101 ta.t~pn of liability in the sQOe wO¥ 68 the

olaiDs refer.r:ed to un~r ,Artiol,e ~(l)(o).

The cru.IEMt.N said the.t the disoussion he.d been useful in pl."Ovicling the

boats tor a tentative oonolusion on how to trea.t ol~ for daoago to harbour

works, basins and wata~s. Altbolll3h I:lElllY deler;o.tions ho.d also touched on

the question ot wreck raooval, for the preeent the deoo.te should be oou/iJidered

os appl;ying only' to the fome+, type of olain. Those supportinG th.e tw,?

proposals put forward had. Given different reasons for their su111)ort: in sooa

oases support was dopendent on the licitation ~ounts to·be inoluded.in

.Artiole 6, and in others ,support was givan irrespeotive of tho oontent of

.. llrtio1e 6. However, sinoe all that was needed at the present stCl(Se was a

aaneraJ. indioation of the preferenoe of the oonferenoe, there was no need to

DOke MY distinotion reGO-~ the reasons for the views expressed. She

proposed thnt an indioative vote be tf.1k:en on the followine four l)ointsl

(1) Wo.a the Oonoittee in fa.vour of e:xc1u~ tron the Convention c1o.ir:ls

for d.otu:lee to l:wrbour works, basins and watt71'Wa¥s?

(2) Was the COtJlJ.Htoe in favour of provid.ine for a olause pemittinG

reservations in respeot of suoh olaiDs?

(}) Was the CoDDittee in fa.vour of illclud.1ng slloh olains in the Convention

and t,Sivine then priority, within the soope of Artiole 67

(4) Was the Comittee in favour of inolud.i.n8' suoh elains and trea.tinG thGD

equally with other property olo.ios? .

Mr. JEtJ.'lNElL (Franoe) thought it preoa.ture for revresento.tives to be

asked to take a. decision on those questions, po.rticula.:r1y when f..rtiole 6 had

not yet beon disoussed. He pointed out that hie dolecra"tion' s own proposal

for l~iole 6 had reoeived a wide ceasure of support as an aooeptable

oouprooise. To take' a. voto now would be to prejudge·the position reG~dinff

Artio1e 6.

LIOCr/CONF. 5/0 .1jBR. 4 - 10 -

Tho 0II.AIRMtlN euaaeet~d that in 'that CMe cle1eaat.:Lona oiGht prefe~ to

noke e. choice between total exolusion and possible exclusion by OOa.n8 of

reservations, firstly without r~teranoe to the ultiDnte oontent of I~iole 6, and secondly on the tu3SUIlption that l~rtiole 6 woUld provide for ooequate

linits of liability, with or without the inolusion of the oonoept of a priority

for tllo~e ol,aJ,os.,

Mr. OLl!1.OON (Netherlnncls) exproosed eo preferenoo for the Ohairoa.n's

initial SUGcrOstion, that the Oocnittee be aaked to deoide on four ODin issues.

The CoDOittee should avoid delaying all ita deoisions on olaiDs until after

l.rtiole 6 had been discussed; he personally would prefer to lla.ve sOOO

indioo.tion ot deleao.tiona t vlLiW$ on the subjeot ot ola.:lns befo:t.'() prooeedirlB

to deoide the ver,y difficult question of aoounts.

Mr. ,I'.MC410S0 (Itcly) also supported the Cho.irnan' a first EI'U(;;'8'Gstiont

al thoueh he did not think it entirely Q-ppropriate to proceed to 0. vote at the

present st08O. It would be better for the Cocnittee tu express 0. preferenoe

for one of the ~our issues presented.

Mr. CHOOK (United States) preferred. the Chaiman's seoond IJJOOestion.

He shared the ooncern of the Frenoll daleBntion that the OoIJOi ttee should not

prejudcre the issue of Article 6.

The CIIlUlU1t.N said toot, in view of the opinions expressed, she would not

o.ek for 0. vote on eo.oh' of the questions she had posed, but would Mk

dele611tione to indioate bY 0. show of hD.nds whioh one of the four proposed

solt.tions they preferred.

Mt-. PEUH.ilKIS (Greece) doubted whether the indico.tion of 0. preferenoe

\rould be nora conclusive than c. vote OD eo.ch of the fourquestiona. I1oreover,

it would be helpful to know how delegations viewed eo.ch of tIle possibilities.

Ilia deIego.~ion would ha.v"e diffioul ty in deoiding whether to ahow preferenoe

for the third or fourth question.

The c.a:urmll.N so.id tba.t she was Darely askill6 for a tenntive

exproasion of opinion to serve os 0. basi .. for the discussion. on llXtiQle 6,

o.fter whioh the COLtittee would have to revert to the subjeot.

- 11 -

The roS1.!lt' of tbe ahPl'{ of' hgn9&! wns PP follOws I

(1) Thosefo.voUl:'ing the total exolusion £roo the Convention of olaios

,for ,~ to harbour works, basins und waterwa;:ys 0:-" '" .

(2) Those preferriD6 the inolUSion of /l. J:ea.erve.tion olausG oonoe1'l'ling

snob clo.1tls -

(3) Those f!lV'ouring the inolusion of such ola.ioa 'and aiV'inB' thaD "

6

7

p1'iori ty, wi thin the scope' of Artiole 6' - 12

(4) Those favouring the trea.toant of suoh ola.ios equoJ.ly with other \

property 010.108 - 14

The CIIAIRMlll~ noted toot the fj.rst _e~tion of sub-parocrraph l( I,l) , . . ~;. ' ..

of .\rtiole 2 had thus been oonclud~d, aqd invited del~sa.t!ona to oonsider sub-

pa.roaraPhl(b) , to whioh two aoendnente had been proposed, by Spa.1n

(Llln/COlO'. 5/e .lj\oJP.1 0) and by J upon (LllXJ/CONF. 5/e .1/Wl? .14) •

:tJ'.r. l3EI.UlJNGU.El):': (Spo.:tn), introducinG hie delegation's proposal, said toot·

its purpose wa.a to ensure thc.t sub-paroera.ph l(b) referred to the

oontro.otual side of the quefJtion. Non-oontra.ctuol rights 'lfere oentioned in

sub-pa.r~ph 1 ( 0). .

Tho cruu:r~rAN said thD.t tho question a.ppeared to be oerely 0. ootter of

c1ro.f'tin/!, for no one wo".ld oonalder the provision as deru.ing with DXlY subjeot

other then oontro.ots. She s'I.1Cl)ested toot the aoendnent be subo! tted to the

Dra:CtinG' CoIJOi ttee.

Mr. BEnENGUEn (Spain) explained that tho reason for speoifio referenoe

to the oontra.ot was to distinguish the del8¥ in question troo delClY' due to

tort. llowever, he oereed that the point should be referred to the Drnfting

CoIJOittee.

YLr .PEl1HJllcrS (Greeoe) pOinted OUi."~lQ.t the previous speaker' IJ referenoe

to the question of tort seened to indica.te that the na.tter was one of

substanoe and not oera1y' of draftincr. If n vessel oolliued with another

ond the one not ho.v1ne the oontract of oa.rrill6e had oaused the first to be

delayed, the reoipient of GOods would have a. 01a.io in tort, which should

not be exoluded £roo liLrltation.

LIiX}/OOUF. 5/0 .J/SIt. 4 - 12 -

Nr. S1JNDAIUUJNGf.N (Sr;i.Lo.nkQ) wondered whether it was prud~t to inolude

the provision in sub-parae'ra.ph I(b) in the Oonventbn. . In the first 1'1000,

the ROt;,"tia l1ules were bains revised, and UUCT.AD end UNOITrJJ.L had alreo,dy

subo1tted 0. revised dra.tt to tha ~nited NQtions GenaralAssaobly.T1mt text

oontained provieione to oover losses resulting froc del~ in the onrriaae of

Of.U'CO. Such provisions should obviously have a. place in thatOonvention, which

deol t with the oonooroiol ospects of the oarriage of ON:6'O. Seo~nc1ly, his

delegction had doubts as to whether 0. provision found elsewhere ~ould be

duplioated.

11r. liEIN' (Obeel.'Vor, CMI), speaking at the ChainJll.tl's invita.t.:l.on, said tho.t

the only intention of sub-paraera.ph l(b) had been to refer to oontractual

relationships. The point oantioned by the Greek representative was oovored by

sti.b-pai-a«raph 1 ( 0), where the phra.se It in direot oonnexion with the opemtion

of the ship" referred to the other ship nnd not to the carrying ship. In that

cesa, delay could be ooopensated just as well as p~sioa.l <ll:lDa.C'G.

Tho cru.IllMAN asked whether MY' delegation would second the Spanish

proposo.l.

1Jg.YiDiI Fe0e1v2Q n.o §UPHQr!;. 'Mba SpWfi!Q Wposol (LEN/COl'!E.5£'2.l/Hli·1O) . KG! ;e,jeo~2d.

Mr. TJ..ND\.AWI... (Japan) explained that the rea.son for his deIof.;"tl.tion's

proposal (Loo/CONF.5/C.1jwl?14) was that delay noarly alW't.l¥s ooourred ut the.

finoJ. steee of the oarrier ship' s vOYS(JG, and that the oo.uses of tlelO\Y' were

not ol"'Tays on boeard the ship but oi~t ooout' outside the ship, for instanoe

at the port ot transshil.JDent. Deletion of the words "on board the ship" would

p%'8veh~ aubi{3'll1 ty.

lvIr. PlllnI'LM::IS (Greeoe) seoonded the Ja.po.nese proposal.

If~. III\llI.:BEU (Federal I~epublio of Gemany) also supported the J o.paneSI)

proposol.. If the words "on board the ship" wore reto.1lled, 1 t would be

neoessary to investiccta where del~ had ooour:red, and that would 111troc,'l.uoe·

a. oonplioation whioh he was sure the o.ut1;lors of the draft ho.d nevQr intended.

- 1, - LE&/COO. 5/0 .I/SR. 4

Mr. SELVIG (Norwa.y) would prefer retention of the referenoe to the

ship. . The reason forinolud!n8 those words was. relevant to the point

raised e81~ier by the Greek representative, the idea being to p;eserva a

referenoe to the ship maki~ tho ql.a1m. It miSht be possible to aa.y

II delq of ·the ship or of its Pa.8sengers or ~e1r l~".

Mr. REIN (Observer, CMI) suggested replo.oing "on boo.rcl" by the·

phrase "oarried on or in" the ship.

MJ... tJNIa..E5 tAustralia.) felt that deletion of the phro.ee lion board the

ship" would perhaps unduly widen the soope of 0. Convention dealing with

1lltU'i time' olo.:l.ma.

Mr. PERl1AKIS (Greeoe) submitted that the pbro.se in quostion should be

deleted eo OB to provide for suoh ooourranoes as the very oommon one of

loss of l~ ill a harbour teminal. There should be no lirui to.tion for

the faul t of port authorities over whioh the shipowner had no oontrol.

Moreover, it wo.s not 0. question of restrioting lio.bility to on unacoeptable

level. As for the fears expressed by the Norwegian represento.tive, the

limitation fund and benefit would be invoked only against 0. olaim presented

by the ship. As regards the CMI suggestion, he oould agree to the phrase

"oarried. by the ship". The point was to enable a. Shipowner to liIJi t his

liability for something whioh was not his fault.

Lord DIPLOCK (Un! ted Kingdom) said that llll were agreed that the

provision was intended to oover liability for the oarBO, po.ssengers, or

their luggage while in the oharge of tho ship. It D1ght be a.dvisable,

however, for the Dro.fting Co~ttee to oonsider the wordine. It was likely

tho.t the Bills of Lo.ding rules would extend liabili t;y to the period when

suoh goods and people were in the aharge of the ahip, evan if they were

not on board the ship.

Mr. WISW~ (Liberio.) agreed that the provision should be referred

to the Drafting Cor:n::littee. However, he wa.s in fa.vour of deleting the words

"on board the ship", a.s they appeared to introduoe a confliot with

~~iole l(e) of the Athens Convontion which do fined the period of oarriage.

LllD/CORF. 5/0 .J/an. 4 - 14 -

Mr. Tl({)TZ (German Deoooratio nepubl1o) 08'I'eod that the provision should

be referred to the Dra.ttin8 Coccittee. It seeoed to h1l:l tha.t 0. solution

on the lines proposed by the Greek representative would be the most

appropriate. .As regardS the objeotion ro.ieed by the Auetrolion representative,

the deletion ot the pbra.se in qUestion would not ertend the sooPtJ ot ~lioation of the licitation provisions, since all the ola.1rne referred to

"

fell wi thin the fraoework of' the oontract.

The CIIi..lJiMAN propose" that the Japanese aoendrl.ent (LEJ;l./OQN:E\5/0.J.jwP.14)

be a.pproved, subjeot to drattlng. i

It was so deoided.