46. Remarkably enough, this section has mainly been realised upon initiative of the Dutch delegates: see Loeff, , Madrid, P.V., p. 168Google Scholar who spoke about a “subrogation-system” in his observations (see infra).

47. (1897), VIII Asp. 256; forerunning decisions in this line: Rankine, v. Raschen, , (1877)Google Scholar, 4 Ct of Sess. Cas., 4th. Sess. 725; Foscolino, (1885), V. Asp. 420.Google Scholar

48. 10 L1. L.R. 592.

49. See de Grooth, , Rekening-courant en compensato, 1948 p. 122 f.f.Google Scholar

50. N.J. 1935, nr 257; See Woltman, , loc.cit., p. 150 f.f.Google Scholar

51. See Hoffman-Drion-Wiersma, , Verbintenissenrecht, 1959, p. 28/29Google Scholar; here only cases impliedly created by the code were thought of.

52. O.C., p. 210.

53. XV Asp. 312.

54. The United States, qua tonnage the biggest seafaring country, failed to ratify or adopt both this Convention and the Collision Convention 1910; in mid-1962 draft Bills were introduced in the Congress of the United States to incorporate by Statute, the Collision Convention as well as the Limitation Convention. The influential American Maritime Law Association hesitatingly withdrew her initial resistance in November 1961, but it is highly questionable whether indeed the entire opposition of cargo-interests and “personal injury claimants” will be ultimately overcome (see Doc. nr 450, A.M.L.A., 10 1961).Google Scholar

For American objections to the Convention: Standard in N.Y. Bar Bulletin, 1956, 2 and 3Google Scholar; Knauth, , Liber Americorum for Bagge, 1956, pp 118–123. (Madrid Draft 1955).Google Scholar

One ot the incentives to have the law changed in the United States was the introduction of the “Morse Bill” in 1957 which threatened virtually to do away with limitation (proposing that hull- and liability insurance should be added to the Owners' fund!). When, by 1962, the Bills - after favourable report in amended form by the Senate Committee - reached the Senate Floor, the same Senator, Morse, threatened to filibuster unless the Bills were withdrawn. His threat resulted in withdrawal, but in 1963 the proposed legislation has been re-introduced again for new hearings before the Senate Committee.

55. Roby, George W., 1901, 111 Fed. 601.Google Scholar See Houston, , Paper on Marine Ins. Matters I (1948), ed. 1955, p. 40/41.Google Scholar

56. See Knauth, , loc.cit.Google Scholar

57. In Catharine, v. Dickinson, (1854, 15 L. Ed. 223)Google Scholar the Supreme Court adopted the original English rule, abolished in 1911 by the Maritime Conventions Act. Recent decisions of the Court of Appeals 2d Circ. criticising this rule arrived at varying percentages of fault, but the damages were ultimately divided equally: see e.g. “Melrose”, 1956, 237 F ad 884.Google Scholar In Paterson Sons v. Chicago, 1962, 289 Fed. Sup. 576Google Scholar, the Court even applied a proportionate division of the damages (appeal is pending).

58. See 1959 AMC 547. This decision was reversed by the Federal Court of Appeals (1961 AMC, 1082). See observations by De Juglart, , DMF 1959, p. 643Google Scholar f.f. and by Bonassies, , DMF 1962, p. 621 f.f.Google Scholar The Court of Appeals based its decision mainly on the fact that in 1953 the manufacturers of the F.G.A.N., the United States, were held not liable by the U.S. Supreme Court (Dalehite e.a.v. United States 1953, 346 U.S. 15Google Scholar): if the manufacturers did not know the dangers of the product, then - a fortiori - how could the “Grandcamps” master have known its dangerous nature?

That this is an exception to the privity-rule in property damages seems to be neglected by De Juglart and Bonassies. In the “Black Gull” case (CA 2d, 1959, 1960 AMC 170) “privity” of the master did preclude the owners from limitation against life-claims, but only then against property-claims if the master were proved to be “general agent” or “managing officer” of the shipowners.

59. This may be explained by the following example in figures:

60. See, for instance, recent Dutch cases on ranking of priorities, Rotterdam District Court: the “Zeearend”, “Tinamar” and “Panormitis”, resp. S&S 1959, nr 55 and 56; id. 1960, nr 15: The preliminary question: — has a claim a privilege —, to consider according to the lex causae; the second question — if so, how is the claim to be ranked in priority —, to settle according to the lex fori.

61. In similar sense: Helm, , loc. cit. p. 82.Google Scholar

62. See Brussels, P. V., 1958, p. 309 f.f.Google Scholar

63. See note 31, supra. Possibly, in the near future, we may be able to add to this list the Netherlands and — perhaps — the United States; the Spanish ratification did not lead to a change in the Spanish municipal law. Likewise, ratification in 1930 of the Brussels Bill of Lading Convention (1924) did not have any consequence until 1950. Only in that year the Hague Rules were incorporated in the Spanish law.

64. District Court, Rotterdam, 1947, N.J. 1948, nos. 51,549. Analogy may be found in District Court, Amsterdam, 1909, W. 8936: but the Courts' arguments in dismissing the “Navarra's” claim for the balance left unpaid after the “Eemstroom” 's limitation in England, do not appear to be very strong.

65. Court of Cassation, November 14th 1924, N.J. 1925, 91.

66. District Court Amsterdam 1957, S&S 1957, nr 57; Court of Appeals Amsterdam, 1958, S&S 1958 nr 49.

For the preliminary question on the legal nature of the constitution of the fund, in the sense of “payment”, see Woltman, , o.c., p. 117–126.Google Scholar

Otherwise: Van Kleffens and Langemeyer, see N.J.B. 1932, p. 107–114; 139–141Google Scholar; Ripert, o.c. par. 1317, rejected the “payment” theory for abandonment.

67. Cleveringa, in this line, suggested the constitution of an international Admiralty Court to the International Bar Associations' Conference in The Hague, 1948.

68. Supreme Court, U.S.A., “Norwalk Vidtory”, (1949)Google Scholar 336 U.S. 386 (see: p. 399): “It (limitation) is in fact a turn-over of the assets at risk to satisfy creditors.; to a landlocked mind it has some analogy to voluntary bankruptcy”).

Further: Adm. Crt Liverpool, “Orsel”, 1959 (2) LI. L.R. 611; Ripert, o.c., par. 1255 (3); 1321, 1325. Légendre, , La Responsabilité Limitée, 1940Google Scholar, mentioned analogy and distinctions, p. 74/75 and p. 91. Helm, o.c. p. 79 f.f.

69. Compare article 320 Rv (Code Civil Proc.) with articles 9, 12, 14, 108–110, 112, 114, 119, 122, 124, 182, up to 187 Fw. (Bankruptcy Code).

The same is true for Belgium, see Ripert, o.c. par. 1255 (2).

70. In England and the United States we would observe the particular analogy which is present in the judicial “order of discharge”.

This discharge may also, apart from a composition, relieve the debtor from liability for the unpaid balance of his debts.

This may only cursorily be compared with what is called “Rehabilitation” in Dutch law, a concept which does not go half as far as “discharge” and became almost obsolete here.

71. See Dicey, , Conflict of laws, 1958, p. 689 f.f.Google Scholar; Blom-Copper, , Bankruptcy in private international law, thesis Amsterdam-London 1954Google Scholar; de Vries, , thesis, Amsterdam 1926, p. 157 f.f.Google Scholar; van Praag, , Rechtsgeleerd magazijn, 1929, p. 305 f.f.Google Scholar

72. The so-called “doctrine of hotchpot”, which reminds us of the “Crathie”-rule, see supra; Dicey, , o.c., pp. 693–696.Google Scholar

73. See Polak, , Faillissement recht, 1960, p. 328Google Scholar; Van Praag, , loc. cit. p. 334.Google Scholar

74. As far as we know the judgment of the Amsterdam District Court (1879, W. 4496) is a much criticised Maverick: a creditor was compelled to be debtor in a Dutch composition for amounts elsewhere recovered before adjudication of bankruptcy was to take place (see van Praag, , loc.cit. p. 341).Google Scholar

75. Van Praag, , loc.cit., pp. 338 f.f.Google Scholar, particular p. 340. Cf. Nadelmann, 61 Harvard Law Review (1948) pp. 804–838, at p. 820–821.Google Scholar

76. Blom-Cooper, , o.c. pp 116–123 (discharges); pp 123–129Google Scholar (Compositions); cf. Nadelmann, , loc.cit. particular pp 823/824, p. 826Google Scholar; van Praag, , loc.cit. p. 343.Google Scholar

77. Van Praag, , loc.cit. p. 341.Google Scholar

78. Cf Tobler, , Schweizerisches Jahrbuch Int.R., 1950Google Scholar: the qualification whether the Courts' approval of a composition agreement is of substantive legal nature or merely of formal (procedural) legal nature, also to be settled according to the lex causae.

79. U.S. Supreme Court in Gebhard v. Can.So Ry (1883), 109 U.S. 527 at 539. Both De Vries, o.c. p. 100 and Nadelmann, loc.cit. do virtually not agree with the conflict rules. Nadelmann explains how the domestic judge has to balance “local interests” and “equal distribution among all creditors” against each other, Nadelmann ends to suggest: “Progressive assimilation of the bankruptcy law, especially on such questions as ranking of claims and preferences, can further reduce the cases where legal grounds may compel a duplication of the proceedings” (loc.cit. p. 833, 831, 837).

80. Nadelmann, , loc.cit., p. 833/834Google Scholar observed the same in respect of an analogous allegation: “persons, dealing with foreign corporations, subject themselves to the law of the foreign government”: “the argument begs the question” (quotation).

81. In general, we have to distinguish between two situations:

1. collision in territorial waters;

2. collision on the high seas

(a) between vessels of the same flag;

(b) between vessels whose countries adhere to the same Convention(s) or have similar maritime rules;

(c) between vessels of different flag and of countries with widely varying law. We then have to distinguish between two questions, the first being preliminary to the second:

A. What law governs (a) faults and (b) responsibilities or obligations incurred on account of these faults;

B. What law governs limitation of liability as a possible result of these obligations?

A fine survey may be found in Rabel, , Conflict of Laws II, 1960, p. 336 f.f.; p. 352 f.f.Google Scholar

Situation 1.

In most continental countries, both (A) and (B) are governed by the law of the place where the collision occurred: Lex loci delicti (France: Cour Cass. Civ. 1895, Rev. Autran XI, 392: Belgium: Cour Cass. Civ., Nov. 23, 1962, reversing the Lower Court's curious option for the law of the flag in (B) — see Jurisprudence du Port d'Anvers 1961, p. 291; Holland: Court of Cass. 1933, N.J. 1934, 167: (see Mulderije, loc.cit. nt 1 and the writer in V.V.P. 1963, nr 7).

In England and the United States, question B is considered as relating to the remedy and thus, a matter of procedure, governed by the lex fori. In England such is laid down in M.S. A. 1894, s. 745 and M.S. A. 1958, s. 503 (though doubted in “the Madrid” 1937, p. 40, 1 All. E.R. 215); in the U.S., the case law appears to be well settled, notwithstanding the Supreme Court's interesting decision in “the Norwal Victory” (1949, 336 U.S. 386), casting some doubt upon such characterisation according to American, rather than to the foreign law, applicable to the tort itself.

Situation 2.

Question (A) (a) may usually be answered by the International Rules of the Road, Question (A) (b) is not unfrequently met by the Brussels Collision Convention 1910, to which most seafaring nations adhere (the U.S.A. excepted, as said above). If not, the Courts frequently resort to the lex fori (Ripert, , Droit Maritime II, 1952 par. 1293Google Scholar); a solution which Cleveringa (o.c., p. 834/835) and Dubbink (thesis, 1947, p. 88Google Scholar) would prefer to avoid. For question (B) the law of the flag of the vessel which invokes limitation, is advocated (Ripert, , o.c. III, 1953, par. 2077Google Scholar, by way of emergency), but sometimes on erroneous grounds (Lyon-Caen-Renault, , Droit Commercial V, 1931, nr 268).Google Scholar

Cleveringa, , o.c. p. 231Google Scholar considere in collision cases the law of the flag “not acceptable”; an alternative is not given. Schaps-Abraham, , Deutsche Seerecht II (1962, p. 51, Anm. 40)Google Scholar purports the lex fori.

Though in cases 2 (a) and (b) I would be inclined to apply as many rules of (A) and (B) as both vessels may have in common, the lex fori ought to be preferred in case of divergence. In case 2 (c) I think that in particular for question (B), the preferable solution lies with the lex fori. Thus, unfairness is avoided by applying the Court's own law instead of giving preference to the law of either party. Moreover, a more just application of the law (viz. the own, familiar, law) is warranted while predictability of judgments and thus, certainty of the law, is enhanced.

This system would, so far, correspond to the system applied by English and American Courts on question (B) in situation 2 (c): “the Titanic”, 1914, 233 U.S. 718; “the Western Farmer” CA 2d 1954 A.M.C. 643. As may be based upon what is said above, this solution is more adequate to the legal nature of limitation of liability. Such limitation is primarily a favor commercii, a matter of policy. Therefore, the Court which has jurisdiction should feel free to decide whether, according to its own policy, such favour were to be granted. Hence, though “the general maritime law” might govern the question of fault and the question of liability, any limitation of such liability should remain within the discretion of the lex fori, if another rule is not clearly applicable. Moreover, if the law of the flag were always to be followed in limitation procedures, such would induce shipowners to enter their vessels under limitation-favouring registry (see v.d. Feltz, , loc. cit., Note 4, p. 392Google Scholar), and this, on turn, might induce some countries to compete in creating favourable limitation systems!

82. O.c., p. 222–223.