-GOVERNMENTAL MARITIME .... ~"'1,, ... ,LTATIVE ORGANIZATION

INTERNATIONAL CO!l:F.t!l1:UiNCE ON LOOTATION OF LI.A.Bnm FOR MARITD'lJil CLAIMS, 1976

Cono1ttee of the Whole IMCO

LEG/CONF. 5/C .1/SR.l.} 4 Apl.'il 1978

Original; ENGLISH

held a.t tae Cunard Intemat10nal Botel~ B~rsm1th-, r,on~on, w.6, on ~e8~, 9 November 1976, at }.lO p.m. .

Me :B. :aWM (Sweden)

Seore~nE\ral, Mr. C.P. SRIVASTAVA (Seoretary-General of DiCO)

Seoretary: Mr. T. B. BUSHA (D'lCO Seoretaria. t)

A82n4a item 6 - Considera.tion of draft International . 2 Convention on Limitation of Liabilit7 tor Maritime Claims (oontinued)

Im/ron-. 5/0. J/SR. 1, - 2 -

AGE.NnI~ ITlllM 6 - OONSIDERATION OF Da."U~"'" !l\'lTEBNJd1ION.LL OONVENTION ON tn:iITATION OF LUJ3ILITY FOR .MARrrmn GLAIMS (LEG/OOOF.5M.1; 100/000'.5/4 and Add.l-,. LEG/CONF.5/6 and Add.l; LOO/CONi'.~/o.l/WP.2 ... ', WP. 5~ WP g 17 and WP. 54) (oontinued)

Ari~ole 6 - TAt e~ Jimlts (oontinued)

Paragmph ..3.

1'b.eCIIAllUvJ.AN·:inv1 ted the Oomm1 ttee to oonsider the question of the .. applioation ot the new Oonvention to salvors. '!'he 1957 Oonvention did not

mention salvors speoi.fioally, the owners of siJ.vage vessels being treated in

exactly the same W8¥ as other shipowners. Diffioul ties h8d. arisen, however,

following the jUdgment in the "Tojo Ma.ru." oase when the se1'V8Zlt of a salvor,

baving le.£'t the sal. vf.\B'G vessel to oarry out repairs on a ship which had

requested assistanoe, had negligently oaused an explosion on the latter. Under

the 1957 Oonvention, limitation of liability for damage oaused by a person for

whom the ahipowner - in the ItTojo Maru" oase the salvor - wa.e responsible, but

who was not on board tho ship, was not t\l.lowa.b1e unless the a.ot, neg100t or

dafault ooourred in the naviga.tion or ~ent of the ship. In the ''Tojo

Maru" oase the l1n:t.ted K!nedom House of Lords had .found that the clama80 had not

bean oaused in the management of navigation of the salvage vessel, and the

shipowner had oonsequentlzr been denied the r.1sht to limit llo.b~l1 ty.

Artiole 2, paragraph l(a), of the draft bof'ore the Oonferenoe was intended

to rewed;y the defioienoy in the 1957 Convention by extending the right to limit

lla.bili ty to a.ll salvors and their servants, whether they were on or off the

salvage ship at the time of an inoident. The limite set out in Artiole 6(1)

and (2) would therefore a.pply equally to salvors. The IMCO Legal. Cocmittee

had oonsidered tho question of whethor there should be separate llcite in tile

oase of a. sA.lvor lea.ving the salVEl89 vessal and working on the vessel in

distress, but had rejeoted that idea..

Artiole 6(,) had been inoluded to provide for 6. different sitaa.tion: for

exaople, \nen salvage operatioue were performed not from a ship but from a

helioopter or orane. In that oase, the liLl.i t oould not be determined by a

referenoe to the tonnage ot the salvor's ship beoause there was no ship.

In order to fa.oilitata the work of the OotE11ttee, she suggested dividing

the disoussion into two parts, dealing first with salvors who operate from a.

- 3 - LEG/OOliji'. 5/0 .J/sa. 1,

ship and then with salvors not opera.ting from a ship. As to the f~rs:t question,

three proposall!l had been me.d.13, by Liberia (LEG/00NB'.5/0.l/WP.2), bythG

Federal Republio ot Ge:r:ma.ny (LEG/OOO. 5/0 .lj\~. 3) and by Franoe

(LOO/OONF. 5/0. Ij\·IP. 17) •

Mr. \'lISWALL {Idberia),:U1troduoing dooument LEG/OONJ'.5/C.l/WP.2, sa.id

that his delegation reprded the salvor as being entitled. 'to limitation, in

that he had eo fortune de mer to whioh referenoe oOUld be me.de for the purposes

of determ1nill8' the limitation of his liability. The bae1e ot the L1berien

proposal wa.a that, since a eal vor woUld oOmmi t resources in proportion to the

needs ot tho operation involved, his fortune de mer should be viewad, for the

pm;poses ,of OOll\P.Uting his llmi tation at l1abi;Lit,. as beiDs :epresent~d only by

the ships partioipa.ting in the f,mJ.vage operation. His delegation had ru.so

ooneide.t'Qd includ1ll6' the value ot sal vll6'9 equipment other than that perto.in1llg

to the ship or el'aps which he.d been oommi tted to the, operation, but had OOLle

to the oonclusion that it WCl.S not possible to devi,I:Ie .s. satisfactory tormula..

The sal~ vessels to pe ta.ken into e.ooount by the proposal would inolude both

those whioh ware owned by the salvor.and .others which he m1£hij have ohartered

and h~ve under his oontrol, but not salvaee vessels on the Boene but under the

oontrol of anothor salvor. Nor was it intended that a salvor should be

penalized for an incident unoonnected with the salvage operations.

Iv'Jr. ROTH (Federal Republio ?! Gemany)., introducing his delegation's

proposal (LEG/CON.F.5/C.l~I.P.3), critioizod the draft text of Artiole 6(3) as

hnvina three cliaaclva.nta.{Jes. First, it would disoourage small ships fron

~ndering services outside tho ship and partioularly on behalf of & larger

ship; sGcc.ndiy, it was very diffioul t to decide what the r.dnimun and. IJa.xir:n.1I:l

amounts should be; and thirdly, it treated both professional and voluntary

salvors in the saoo way.

Hie deie8a.tion' s proposal was tha.t the lim! t of liabil1 ty for a

profesaio!l£4. selvor ,ehould be oalculated with referenoe to the ship to which -\.. .

services 'were rendered, whether or not the salvor was oporatil18 .trom a ship.

In that oase, the salvor oould oa.lcula.te his risk and take it into acoount in

cOnnexionwith th~ salvage oontraot. The lim tation atlOunt for voluntary

salvors, on the other hand, should dej,lond on the tOIm8(3'e of their own ship ..

That would encourage people to oone to the assistanoe bt other shipe.

... 4-

The Quostion of SEl.rvio~s provided troo SODe sort of ElQuil>oent other than

a ship ahould, llemo.pe, not oome t1ithin the so">pe of the Convention, fJB suoh

ole.ios would not be striotly ot a Iil8ritioe no. .... ~ and Ghould th~pefore ha.ve no

lioitation of liability.

Mr, DOUAJ. (FrQlloe) .s&1d,' tba.t the oen.t;ra.lo,,"tloept of his delesntionls

proposal (xm/CONJ'.5/C.l/WP.l7), like that ot the draft text., was thatt,the,

limit of liebiUty ot e. sa;l.vor ~oul4be oaloulatea. on the baeis ot. the to~

of.the eb1p to whiob ClfU'VB6G e~rvioes. were bein6 rEmd6-~ed.. The Frenoh, propoael

would 6ddi t1~ e¥teD.!l tbat benef! t, to ~ pal vcr whe~i.er, operc.tine' trOD a

vosl!lel or not.

The Franoh proposal differed from that of the Faderel RepUblio of Gettl&'ly'

in that it provided for Llin1rn.u:l and L.lO.Xirl.uu &Jaunts (as did the basic text), , thus one.bl1nB' salvOrI!l to take out insunnoo with raterenoe to the nin.1oUm and

'tl8.'X1r.1uo anount of the ship being salvaged. It ooinoided w::t.th thE) proposal of

the Fedora.! Republio of Ge:t"llBZly in oonte.ining the oonoept of the eelvor

Opera.ting professionally, but it also took a.ooountof salvage operatione

oonducted t:roo equipr::.ent other than a ship.'

Hie delegation believed that its proposal would ofter a oonsiderable

advantage to salvors beoause, at present, the lie.bill ty of Sfu von not opere.tiIl8'

£roo a. ship is unlini ted. 81 tu.a.tiona not provided for in the present Convention

would rarmin subjeot to unlioited liability.

Paragraph 2 of the Frenoh proposal enabled the ooo.sional selvor to benefit

in the sane way as ~e professional salvor, unless the vassel frou whioh t.be

servioes were rendered was of a snaller tonnage than the one to whioh sarvioe9

t. wera rendered. In tha.t oase, the liJ:li tat10n would be less than the toIlll.t\3'El of

the vessel to whioh the servioes ware rendered.

He would be interested to hear deleaatioDS' views on whether there

should be a. different systeLl for the sel vor a.ooordine' to whether he wa.s

operatinff froo a vess.l or not. The French delegation did not think there , \\", , ~

should be 81lY s:uoh differenoe. • I~' I

The CH.AIR.MAN. j,nvi ted discussion on the proposals t but asked. delel3'6t.ions

to oontine, the~r ;r.'GLl6rks to the owners and opera.tors of salvage vessels. She

rOQinded deleB8tes that in the draft Convention salvors were trea.ted in the

- 5 - LEX:}/COltD'. 5/C .1/sn .13

saue !"..lMIler as other shipowners. She enquired if there were seoondora for

the proposals just introduced. ,

Mr. LOZANO LOPEZ (Panauo.) seoonded the Liberian proposal.

~. LYON (Canada.) seoonded the l!1z'anoh proposal. , , I J,

There b2iM no eeoop4!r, b p;opoPAl of the ItsJ.val Ril231RUoOf ~

was dopla;ed lapsed. ." I~. HOWLE'l'l' (Un! ted Kingdoo) said that while his delegation supported

part ot the French proposaJ., he 'Would like to have the opportwU tyof disol,lSsing

it on the basis of 'whether Artiole 6(3) should inolude ealvorswnether they

wore operating !ron a ship or not.

The CHAIRMAN appreoiated tho United Kingdao representative's diffioulty,

but wishod first to reach a deoision in prinoiple on whether o~ars of salVfl6"El

vessels should have a separate liDitation eysten.

Mr. REIN (Obaerver~ CJlll), apea.k1ng at the invitation of' the Chairlla.tl,

said that he saw nc oari t in drawing a distinction between tlla pro£eSS10118.1

salvor and the non-professional, or oasual or o~oasional, salvor. There was

no such distinotion in the 1910 Convention for the Unifioation of Certain

Rules of Ll:l.w relating to l.asietanoe and Salva('re at Sea, Artiole 8 of whi,oh

spooified, with reference to assessuent of the salvage a.ward, that "due roeord"

was to be hOO "to the speoial a.ppropriation (if any) of the salvors' vessel for

ealVll(r,es purposes". In other words, if the vassel was speoifioally equipped

for the p'trpose, the renuneration would be higher even if the o~erator was not

a professional salvor. The listinotion between professional and non-professional

salvors, whioh rli8ht be acceptable in oolloquial USfl6e, was not halp.fu1 in the

present case. The real distinotion wae be'cween ships well equipped for the

~)O~G and those whioh ware not so well equipped. Disputus on ealv6G~ awards

had in nany Oases been on tha.t very issue. Thcr.~e WaR thereforo no acoeptable

oriter.ion for difforentiating between the eo-called professional and non­

professional ~alvors; and the uae of those terus would introduce a new

distinotion which would have no foundation in existing legal practioe.

,With ~eeord to the Liberian proposal, the question of oalculatj~~

lil.Ji tation in respaot of a. nunber of vessals was not peouliar to sal ve,ee I the

LEG/CONI'. siO. l/SR.1, - 6 -

same problem would &1'188, tor example, in the Oas8 ot .. tug and tow oolliding

wi th -a ship. It would be impraotioable to adopt the Liberian solution of basipc

the oaloulation on the combined tonnages of all the vessels involved, sinoe in

JDI.\1:JY oases only a tew ot the vessels would actually take part in the salvage

operation. The problem posed in the Liberian proposal was too cOIllIll8x to be

adequately dealt w1thin .. ,1ri&l~''p~ in a Convention. In any o88e, he

did not think it warranted the attention which was being given to it in the

context o~ the prapent Conte~noe.

As a practioal, solution: he was in tavour at treatin&' the .s~vace vossel. .in

tho same ~ 0& .any other vessel for limitat10n purposes -,~~~lY, as was done

in tho 1957 Convention, thereby providing proteotion for all salvage vessals

whether or not persannelwere working on or outside the vaas01.

z,b:'. DOUAY (hanoe) explained that his proposoJ. was designed to provide a

single regime tor all salvors, without distinction between professional and

n,on-profeaaional, the limi ta.tion for all ships being oalculated by referenoe to

the tonnB6Q of the ship being salvaged, but with a mrud.mum and a. minimu.m. An , '.'

exception was made, however, that in the oase of a amall ship with a tonnage

below them..ininnml, the calculation would be ~."sed on that mi:n1mum.

Mr. CrmON (Netherlands) agreed with the views ot the Cm obsorvor. The

problem oonoerning the salvor had arisen only smcG the Un! ted .ICirJ.Bdolll House of

Lords' deoision on the "Tojo MaruI! oase. The salvor operating !rom the salvage

vessal had always bean treated as the shipowner, whioh indeed he was, and there

was no need to oha.nga the pro sent systom in respeot of the item under diaoussiqn.

He appreoiated the Liberian representative's point regarding fortune de mi*, bat that was a di.fferent ooncept. The Li;berian proposal would oa.use legal

oot:.1plioa.tions, for where larger sa.lvaee operations with several vessels were

involved, thero oould be Ill8ZlY kinds of mishap. The main point was that there

were no diffioulties at present under the 1957 Convention regarding the salvors

operating fram a salvage vessel •.

The distinotion between professional and non-profeseionoJ. salvors could

oause diffioulties, since there oould be ~ borderline oases Whioh would have

to be settled in oourt. No one wished to orea.te new problems in ~le present

Convention. and there was the:t"efo:"'e no 1.rJr.lediate reason to ohange '~he position

ot the salver operating fron a ship, who was a. noroal shipowner.

- 7 -

!tto. ROGNLlJilN (Norwaw) agreed with the CMI observer and the Netherlands

reprasentau,ve. He was opposed to draw1ng Q dist1notj,on botwoon profe.,sionaJ.

and non-pro£essionalsalvors, and in .favour of ke~pi:l8' to the ~io text, ,with

tho llm1tation by referenoe to the tormaee of the salvor's ship. He could not , support the French proposal on that point.'

Hounderstood the Liberian proposal to mean ~e.t the ,lirni tB1i;lp~ should be

oaloulated by re£erenoe to thetota.l tonnage of a nwber of shiV~ e~d in

the SQIlle soJ.vtl(S'e operation, when the salv:or was the owner or operator of those,

ships. 1'luI.t was one interpret.ation altJle rule in AJrliolQS 2 and 6 oOClbined,

and perhapD what the Liberian. proposal pointed to waathe correot interpretation

of the Canvention~ But e.s previous speakers .badindioated, th,e p:I;obletl was a

(,"enero.l one .not peoulior to salvors, and should be salved in e. general context.

If thQ Liberian proposal were taken up, it should be stressed tQ.e.t it oonoemed

only vessels involved in 'one and the SaLle incident and operated 'by the S&le

operator •. He 'oould not, however. support the Liberian propos.al in the present

oontext.

Mr. FILIPOvrC (Yueoslavia) feit that the oouuents of the CJllI observer and

the Notherlands and Norwegian representatives fairly well 'oovered the aituation.

His delegation oonsidered that the disoussions in the Legal Couoittee and fit

the present .Conferenoe had all baenbased on the uniorturu:l.te oase of the

"Tojo Maru", and that there was no raMOl'). to diatinguish between professional

and non-professional salvors. Professional salvors night be mora effioient,

but that Wll.S not a. leeal question in the oontext of the present Convention. He

would prefer to see salvaae vessels treated in the sace W8¥ as ordinary vessels

and would oppose all proposals differentiating between professional and

non-professional solvors.

Nr. HOWLETT (United ICin.eUom) SUSBested that in'the oase of salvors

opera.tlnB troo a. ship, it would s1op11.t':y oaloulations if the l1rJ1 t oould be a

fixed suo. In the present oontext he a.greed with the representative of Franoe,

but would ra.:.lee the natter la.ter in oonnanO». with salvors not operating frOIil

a ship. The fixed BULl uight be' related to the tonnage of the largest tuB, for

e:xaople 3,000 tons, whioh would gElnera.1ly Give olairJants uore than a.t present.

The CRA.IRMAN, referring to Rule 27 of the Rules ot Prooedure of the

Conferenoe (LEG/CONli\5/2/Rev.l), said that 1f there ware no objeotions, sha

LEG/CONlII. 5/C .J/sa.l, - 8 ..

would. invite rupreeentat!ws to oonsider th9 United Kinedom proposal even

thOUBb it bad not been submitted in writ1n8' within the presoribed ttme. She

inquil.'ed 1£ en::r delegation· Would seoond thEil. tTn! ted Xlngdom proposal •.

1.'hQ1;.9 peWS ~ ,eoOnsier. the l1Jlii.tj4 K1M3iQP1 propos§;l. W bot 99Mi dgred I' ;

M'r.WIJSMULLER {ObS8rY'el', lI1l'A) spaald.ng at the 1nv:1 tatien of the Chatrman,

said that he appreciated the intention at the Iii ber1an proposal but felt it

unsuitable for the present Convention. A number of representat1ves .at the

twentyo..eighth seesiO!! of.. the Legal Comm1 ttoe, 1nolud1ng the Norwea;Lan

representative and himself, had. po1J1ted out that 1 t would enta:1.1 o.om,p;L.1.oet!oX1S.

Wi th rego.rd to the lapsed :proposaJ. by the Federal Republio of GG~, there .

'h04 bo&h threa pointst first, it was diff:Loult to dieti.ngu.ish lxrtW$en ditf9rent ltinds of sal vO'r; seoondly; in the oase of a. salvor deaJIled to be non­

professional, there was the vexed question of his lim1 tattoo if he did not

opemte from a. Bhip. Th.1.rdly, small-soale professionals miBbt t.:Lnd it .

diffioul t to obta.:l.n insuranoe, and would therefore be ohary of oa.r:rying out

salvaae work when neoessary. He 8mt' noreaeon why they should not be able to . . " ,

use the ship I s 11m1 tation if they used .the ship.

He appreoiated the Frenoh representative's explanations but did not

support his proposal. It had the adva.ntaee that volunteers not world.n8 from a

ship hadth& right to l1m1tat1on; but it was unneoessary and undasi~able to

place the non-professional in a bette~~osition than the professional.

X1r. CCY.J.1l'ON (Observer, tCS), epee.king at the invi to.tion of the ChoirmtlIl,

said that the present rules for salvage opero.tions from a ship had worked

sat1stootor1ly 80 tar, and. he saw no reason to change theL'l. What the owner

wanted WIlS qui ok salvage~ the actual amount in oase ot domagaby the salvor

was lese important. The Liberian proposal appoarad to be oonoerned With

eeour~ more money for the owner.

For those rea.aone and in view ot the ditfioul ty ot defining a profesaional

s~vor, he urged support for the existing terti

JIlt'. SIM (Singa,pore) obaervedthat the 1)rincip10 that the salvor was

anti tIed to limitation ot liabil1 ty was not e. llew one, sinoe under the ,

1957 Convention the solvor ope~atinff'from e, ship was treatod in the same WQY

- 9 - LEG/COl'&. 5/C tl/SR .1'

£',13 an owner. He ll1u;?ported the prinoiple in pc.ragra.,ph , that the Sa.lV01' noi;lt'\

opera-tina !'roo a ship wa.s enti Uad to lirJi tation of liability subjeot to o.t;l

amount to be deo~ded la.ter. He, \ltaS not in favour ot dranng a distinotion

between the professional and the non-professional salvor, and ~oed wi th th~

ONI ob8el;"~'"er'f.;l~t all salv?rs, whetlle~ prof'as~ional or, not, should rooe1'''o

the same t~a tme;lt.

The CHAlRN.Ali inY! tad delegations to indioa.te their views on the Liberian

and Fronoh 1"rop080.18 by show of hands.

Thoro ltQl<22 votes in t'ivQ~ ot' "leba Ia'2eriW* propo!3eJ, '~CQNF,5/C,llw:P",2) ~ against @Ad 1abstentioQsi the RiQPoaal Was rejeoted.

Thor2 l{Qro 4 Iotas in fa.v!?'Wt 9£ tbfi Part, of the French proposEll.

(oo/CONF. 5/0 .lll'!:p .171 rela'tina to sal vgrs operatWo/} from g.' ship, ?3 ar@rus.1, (l.11d J,O §ba]gntions; it wa.s ~90rdingl.y rejeQ~e,g.

Tho CI1AI.RML\N invited tho Commi ttoo t" oonsider the question ot' salvors

not op~rating froe a ship. In addition to the proposals by tho Fedoral

Republio of Gonm.n.y and Franoa that had already boen disoussed, there "rare also

proposals by Australia (LEG/CONF.5/C.lj!rIP.54) and by Sweden (LEG/CQl'U!\5/4,

p~ 17). Sha asked the French representative whether his proposal ~~s aleo ,. ,

applioable whore salvors not oreratins trOD a. ship lIars oonoemed.

I·h-. DOU1I.Y (Fr£U:ioe) sc.idtha.t he would withdraw his proposal in raem-d to

t.~t ~uestion.

TI1e ~~~ asked the representative of the Federal Republio of Ge~~

whether his proposal was to be oonsidered a.pplicable wher~ salvors not

operating 1'ron shipe were concerned.

liIr. ROTH (:F'ederal Republio of Gamany) said that sinoe his proposal ha.d

lepsed, he sa.w no reason to revert to it.

Mr. ItElRNES (Austl;'a.lla.), introducing his delegation's proJ.)osal

(LEG/COll]\5/C.ljvlrp.54) said that the present text did not make it suffioiently

clea.t' that tho 8a.lvo~s referred to oould also inolude salv?rs operatine frOLl

the actual Ship to ~oh asBis~at\C)o or salvaaa servioes, were beinG «iven. For

salvors in ,tha.t cai;e50ry, the figures should be fixed by reference to the

tonnage of ,the vassel fron whioh they were operating and to which services

were beine rendered.

- 10 -

Mr. Luum (Sweden), introduo1nc his delaua tion '19 proposal.

(IJilG/001IF.5/4, paee 17), said that there were a. nuuberof teOhnioaJ.

di£.f'ioul ties in the W8\V of on a qui table satUenent of 1101 ta.ttoo ' of

liability in reBard to salvage operations oarried cut not by n salV089

vessel but by helicopter, orana' eto. 'In suob ooaes, B speoifio &jount

should be fixed, which oould be oaloulated by referenoe to 8 ship ,of

'betweon 1,OOOond 1,500 ~SEl tons.

Mr. BUliSLEY (United states) seoonded that proposal.

Mr. IWATA (Japan) supported tho Australian proposal. However, if its

intent wa.s to ensure that a salvor operating froo a ship to which servioes

were be1n8 rendored was to be treated 10 the sace W8f as a salvor not operating

.f';r:ou su9h a $1:p, tho oatter was in his view prir.1B.rily one of drattin8'. He

suggested th£I.t the Australian ~;'Oposal bG referred to the Drafting 00001 ttee

for oonsideration.

Hr. BUliSLEY (United Sta.te/!!) disputed that view. The Auetralioo l)rOposeJ.

wna not oerely ,0. ua.tter of dra.t'tifllj, but introduoed an entirely different

prinoipla on whioh l101t of lia.bility was to be based.

Nr. lUi1IN (Observer, CJiII), speaJd.ng at the invi ta.tion of the Cha.:LnWl, said

tha't prior to the 1957 Convention, the possibility of salvage operations be1.n.€.i' perforoed otherwise than fram n, ship had never a.riaan. In reoent YIi/Il.rS,

however, suoh operations had begun to be oarried out not only by various

airborne un! ts but also by drilling and oo.:J.ntentmoe platfoms which ware

speoially equ1Pl)ed to provide such assistanoe. Thera was no doubt thnt

salvors in that oategory needed :proteotion in case they should incur Habll! ty

in goi1l8' to the aid of shipping. The only question was how that protection

should be foruulated.

Hie oraanization was against tile introduction of an entirely new regUJe

baso(l not on tonnaee but on BOLle other footor; it would be better to keep the

limitation based on the tonna.geoi the ship to which assistanoe was being given.

Liability night be inourred bysa.lvore either towards the ship reoeivine the

servioeEl or towa:rds th1:td parties.· In the first case, 'the eal'tor oould refuse

to undertake shy servioes unless any olaims e.ga.inet him were wiUved; and in

the second case, he would be able to take advantage of the proteotion of the

- 11 - LEG/CONF. 5/0.l/sn.l',

fund oover:l.ng the ower of the ship in distress. Al tboUBh not ideal, the

solution based on the tonnage of the ship reoeiving aid was a toler~bly

satisfo.otory one, if it were deoide,d not to introduoe a new regimo based on

oaloulation rather than tonnage. However, if it ware deoided to introduoe a

now Z'(;jgime, the fixed £'und solution had some attraotione, partioularly if it

wo.s related to the tonnage ot the ealv08'Gd ship and subjeot to an upper limit,

and if it were ooupled with :aggregation of all olaims ago.inst the salvor and

the owne:t' of the sal~d ship. :Both solutions were quite feasible, and his

delegation had no preferen~e either ~.

]'tIr. COTl'ON (Observer, lOS), speaking at the invitation of the Cha.:l.rman,

snid that it W/lS easier to arro.nge inauranoe on atl annual basis t4an on the

basis of a partioular inoident. There were objeotions to any propoao.l basad

on 0. varying amount of limitation, sinoe the salvor's limitation would depend

on the vessel being salvaged. Those objeotions were overoome by the Swedish

proposal, and his delegation therefore supported it.

lir. ROG~lLm! (NoI'Wa¥) aleo supported the Swedish proposal. The ideo. of

havina one general unit of o.ooount was 0. good one, though it would be diffioult

to deoide on a figure before knOWing what were to be the minimum amounts to be

inoluded in Articlo 6.

Wi th reeard to the Aus'tro.lian proposa.l, he aasumed that the new cateeo1'7

of salvor referred to would not inolude the shipowner or operator of the ship,'

or persons for whom the opera.tor was responsible. If a member of the ore", of

the ship to which se~lcas welre being rendered volunteered as a ro.lvor, his

lim! tation of 110.011.1 ty should, be the eaL"'l1';} as that of the shipowner and not

ro(Ja.rded as a separa.te oategory. That point should be made clear in the text.

If a passenger were to volunteer as. a. ealyor, tl1e~.the Australi£Ul fOl."Ii1U..laticn

was adequo.te.

Mr. HC\llLTilTT (t .. i +,>,~ Kingdom) also eupported tbe Swedieh proposal. There

was ouoh to ba said for a fixed SUtl rather th£Ul 0. oo.lculation; for the former

was siopler to apply, although it would not be posai ble to decide what the sum.

was to be until the disoussions 011 the firet part of l.rtiole 6 had been

o oncluded. His dele8Q.tion favoured the idea of a fixed SUD related to the

tormago of t.1:10 largest tua'.

- 12 -

With regard to the Australian proposal, he agreod that the matter was

essentially one of drafting. '

Itfr. wr.JSMO'LLER (Observer, lUrA), speaking at thainvitation of the Cha.1rnan,

weloonod the eenaral aereeoent tha~ salvors not operating froc ships should

reoeive the benefit of licitation vf liability. His ~sooiation oould support

the Swedish proposal: al thoue;h oODl>lioations c1ght arise over tho ~8%'egntion

of alaine, the Q.voidanoe of unoertainty was very inportant. If the Swedish

proposal weronot adolyted, the Conferenoe would have to fall back on tho

aoendo.ent to the in! tial OM! proposalIJade' a.t the twenty...eisilth session of tho

LaBSl Ooobittoe. His Assooiation had supported that 8CQ1'ldrlent, with the proviso

thll.t tAe oa.:r:b::n.ln should not be too high.

Drawine attontion to his llssooiat1on's proposal (LEG/CON]\5/6, pa($'O 2), ho

Ell.."Pla1nod that the reasons oohind it were, first, that with a hiBher co.xinur.l,

salvors - particularly scalI-scale local salvors - not operating frOD a ship

would have diffioul ty in :f'indiIl6 adequate insuronco, espeoially whore larger '

ahipl3 were oonoerned. Seoondly, that non-professional salvors not operatinu

£ron a ship would also find d.1:f'fioul ty in solvirlg their insuranoo probleus;

thirdly, that salvors would be reluctant to offer salvaee servioo to larb~

ships, whioh vero precisely those which posed the B"X'eatest risk; and fourthly,

t1:at if thE:iro were to be a distillotion betwoon salvors oparat1ne frou a ship

and tho~e not operating £rOLl a ship, oostly li tiaation night well ensue if the

luJits of liabilityvarieti too ouch. The possibility of suoh litiaation would

make it, difficult to s~c~~ reasonable insuranoo preni~s.

l1r. RElN (Observer, eMt), speaking at the in'\ri tation of the Chlliman,

expressed uncertainty as to how the BB'BTegation aspect was to be ta.lten into

acoount in' tho proposals under disoUssion. As ,he untiarstood it, the basic text

sUB'B'esteti that the salvor would have the benefit of aesregation, wherens with

the Swedish proposal thQre ,should be no 6B'B:regation, since pro·Jision would be

Dada by an entirely separate fund. Ho dQubted whether the Swedish proposal

was proferable to the basic toxt .fraw the salvor's viewpoint.

The CH1l..IRl'i.AN' inn ted deleffB,tione to indioa.te, their views on the .Aus,traJ.ian

proposal.

Tho ll.R@tl,'allOO m;oposal (LEG/CON]', 5Ic ,11"&. 54) Was approypd (It.v.Q,.tos in

~voH£. 1 Ql~et apd 23 abetest!one).

•

- 13 - LEG/COJ~ • 5/C .1/an .1,

The CIJ1..IRIU.N invited dalegationa to indioate their l)reforonoos with reanrd

to the Swodish proposal.

The SW9c1J.sQ proposal, (LEG!cOInr. 5/41 pli1t£il I'll ya.s approvGd (13 votRs ;tn

fQvour 1 4 Af.1¥ln at. and 18 a.bstentions).

Nt'. n-rllfl.. (Japan) said that his deloi)""ation would ap])reoiate olarifioation

as to how a Cistinotion was to be wade b~tween personal olaine and proyorty

oloina in ~iole 6(;). Neither the basic text nor the Swedish proposol

included any provision for ~~ that distinotion.

The CH1~~ said that that question would have to be disoussed at a latar

stO(?,'e.

IIh-. PERRllKIS (Greeoo) suggostod that dele5Q.tions be asked to express thoir

preferenoe's with rO[T,Ol.'d to the basio text of krtiolo 6(;).

The Cru..nu·lll'l took it that tho COL::.u ttoe had already 1ndioate(~ its

preferenoe for tho Swedish text as aeainst the ba.aio text. Howover, if the

najori ty so wished, she would oall for 0. show of hands on the basio text.

Thq bGsia tQxt of ~'\rtiolQ 6(~) t as wended, wa e-PI?roves,1 (12 in j)wour .....

1 ~st, ondJl6 abstgnt1on6)'

lIW. PEnRAKIS (Groeoe) interpreted tho vote as showins that no results had

boon achievod. In his opinion, the Couui ttee was no farther forward on the

sub~eat of Ll.rtiolo 6(;) than the nroo LOGal Comittee had been.

Tho CHllnu.'1ll.N l)ointed out that the COLloittee would be rcvertil16 to the

question the following day.

The oeetipe ro~~ 5.45 p~.