A question certified from the Circuit Court of Appeals for the Second Circuit as to whether a decree under such circumstances could be entered against the United States, it was stated at page 340 by Mr. Justice Holmes: "A collision involves two vessels. The trial of such cases in the ordinary course is upon libel and cross libel, consolidated under authority of statute. Rev. Stat. Sec. 921. The North Star, 106 U.S. 17. If both parties were in fault the entire damage would be divided equally between them, and it could not be argued that the United States could avoid the consequences of the rule although the damage to the other vessel might bar its recovering anything. This shows that the subject matter is the collision, rather than the vessel first libelled. Bowker v. United States, 186 U.S. 135, 139. The libel in such a case is like a bill for an account, which imports an offer to pay the balance if it should turn out against the party bringing the bill. Columbian Government v. Rothschild, 1 Sim. 94, 103. Goldthwait v. Day, 149 Mass. 185, 187." The damages which flow from a collision, therefore, should be spread over those in fault in proportion to their fault and the punishment thus be made to fit the crime. No innocent party should suffer, unless some statutory rule which binds the Court shall prevent or diminish his recovery. IV. My suggestion I should heartily favor an Act of Congress allowing fault to be apportioned as between colliding vessels and providing that cargo should still have its present right of full recovery from the Non-Carrying vessel and that the right of contribution as between the two vessels should remain as it is. I think that would improve the law, because often times under our present decisions which hold that if a vessel is guilty of a statutory fault, i.e., fails to observe one of the collision rules, it must to exonerate itself prove that the collision could not have been caused or contributed to by this fault. Yang-Tsze Ins. Ass'n. v. Furness, Withy & Co., 215 Fed. 859 (1914) Writ of certiorari discussed 242 U.S. 430 (1917). Lie v. San Francisco & Portland S.S. Co., 243 U.S. 291 (1917). To prove this is usually impossible, and as a result though the fault of one vessel may be almost microscopic, and the fault of the other glaring, the damages have to be divided in half. In a jurisdiction which strives as admiralty does at the just distribution of liability, that is, of course, absurd and is confessedly a rule of thumb. V. Conclusion. For the reasons given, I do not think the proposed Convention would improve the law or would make for justice, and, therefore, I am not in favor of having the proposed Convention sent to the Senate for its ratification. I do not think we ought to change the law in a way which would not promote justice, and I think that the Convention would not do so. Change for the sake of change, which threatens to become the curse of our age, is a practice which certainly should not be encouraged in law. In my letter to you acknowledging your letter of December 13th, I said that I would endeavor to give you the considered opinion of my partners and myself in connection with your inquiry. I, therefore, think it is only fair, before closing, for me to state that some of my partners do not agree in what I have said regarding the error in principle made by the Convention in apportioning cargo's recovery against each vessel to the degree of fault of that vessel and in doing away with contribution as between the vessels in cases where there has been mutual fault. It seems to me, however, that it might fairly be said that in the very article in which the Convention lays down this rule, it recognizes the justice of my criticism by not extending the rule to cases of death and personal injury. Perhaps I should add that I have almost always been on the steamship side of collision cases during my twenty-five years at the Bar. Consequently, the views that I have given above are not colored by any interest whatever in the cargo side of these questions, nor are they in any sense intended as propaganda on behalf of cargo interests. They represent my considered opinion as to what I believe to be the only method by which justice can be served in cases of collision due to mutual fault of the vessels involved. I am venturing to send you an extra copy of this letter in case you should wish to use it in any way. Believe me, Faithfully yours, (Signed) JOHN M. WOOLSEY. The Lottawanna, 21 Wall, 588 at 575 (1884). Butler v. Baston Steamship Company, 130 U.S. 527 at 556 (1889). Union Fisk Company v. Erickson, 248 U.S. 308 at 313 (1919). Grant Smith-Porter Company v. Rohde, 257 U.S. 469 at 476 (1922). Industrial Commission v. Nordenhall Company, 259 U.S. 236 at 276 (1922). Osaka Shosen Kaisha et al. v. Pacific Export Lumber Co., 260 U.S. 490 at 495 (1923). Great Lakes Company v. Kierejewski, 261 U.S. 479 at 480 (1923). Red Cross Line v. Atlantic Fruit Company, 264 U.S. 109 at 124 (1924). Washington v. Dawson & Co., 264 U.S. 219, 227 at 228 (1924). Panama R. R. Co. v. Johnson, 264 U.S. 375, at 386 (1924). Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449 at 457 (1925). SCHEDULE III SUPREME COURT RULE 59 (OLD) Vessels jointly liable made to contribute in suits for damages by collision In a suit for damage by collision, if the claimant of any vessel proceeded against, or any respondent proceeded against in personam, shall, by petition, on oath, presented before or at the time of answering the libel, or within such further time as the court may allow, and containing suitable allegations showing fault or negligence in any other vessel contributing to the same collision, and the particulars thereof, and that such other vessel or any other party ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such process may be issued, and, if duly served, such suit shall proceed as if such vessel or party had been originally proceeded against; the other parties in the suit shall answer the petition; the claimant of such vessel or such new party shall answer the libel; and such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall appertain. Stipulation given on filing petition But every such petitioner shall, upon filing his petition, give a stipulation, with sufficient sureties, to pay to the libelant and to any claimant or new party brought in by virtue of such process, all such costs, damages, and expenses as shall be awarded against the petitioner by the court upon the final decree, whether rendered in the original or appellate court; and any such claimant or new party shall give the same bonds or stipulations which are required in like cases from parties brought in under process issued on the prayer of a libelant. SCHEDULE IV SUPREME COURT RULE 56 Right to bring in partly jointly liable In any suit, whether in rem or in personam, the claimant or respondent (as the case may be) shall be entitled to bring in any other vessel or person (individual or corporation) who may be partly or wholly liable either to the libelant or to such claimant or respondent by way of remedy over, contribution, or otherwise growing out of the same matter. This shall be done by petition, on oath, presented before or at the time of answering the libel, or at any later time during the progress of the cause that the court may allow. Such petition shall contain suitable allegations showing such liability, and the particulars thereof, and that such other vessel or persons ought to be proceeded against in the same suit for such damage, and shall pray that process be issued against such vessel or person to that end. Thereupon such process shall issue, and if duly served, such suit shall proceed as if such vessel or person had been originally proceeded against; the other parties in the suit shall answer the petition; the claimant of such vessel or such new party shall answer the libel; and such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall appertain. But every such petitioner shall, upon filing his petition, give a stipulation, with sufficient sureties, or an approved corporate surety, to pay the libelant and to any claimant or any new party brought in by virtue of such process, all such costs, damages, and expenses as shall be awarded against the petitioner by the court on the final decree whether rendered in the original or appellate court; and any such claimant or new party shall give the same bonds or stipulations which are required in the like cases from parties brought in under process issued on the prayer of a libelant. Senator BARTLETT. The committee will stand in adjournment. (Whereupon, at 12:36 p.m., the subcommittee was adjourned subject to the call of the chairman.) (Subsequently, the reports of the Department of State on S. 2313 and S. 2314, dated February 28, 1962, were received; also the reports of the Department of Commerce, dated March 2, 1962, and the reports of the Federal Maritime Commission, dated March 13, 1962. Subsequently, also, a statement was submitted by Abraham E. Freedman, rebutting remarks which had been made at the hearing, requesting its inclusion in the record. The documents follow :) Hon. WARREN G. MAGNUSON, STATE DEPARTMENT, DEAR MR. CHAIRMAN: I refer to your letter of February 13, 1962, and my reply of February 23, 1962, and wish to forward the following comments, made by the State Department, on H.R. 7911 and H.R. 7912 which correspond to S. 2313 and S. 2314. S. 2313 (H.R. 7911), a bill to unify apportionment of liability in cases of collision between vessels and related casualties. "The bill proposes to enact into U.S. law substantially the provisions of the 'International Convention for the Unification of Certain Rules to Govern the Liability of Vessels When Collisions Occur Between Them," signed at Brussels on September 23, 1910, on behalf of 24 governments including the United States. A total of 34 governments (not including territorial extensions) are now parties to the convention. "The convention was submitted by the President to the Senate on April 29, 1937, with a view to receiving its advice and consent to U.S. ratification. The Senate Committee on Foreign Relations reported the convention favorably to the Senate on June 15, 1939. The report (Ex. 4, 76th Cong., 1st sess.), sets forth the text of the convention and discusses it fully, including discussion of the four reservations recommended by the U.S. delegation to the 1910 conference. These proposed reservations appear to have been given effect by the drafters of H.R. 7911 to the extent that the points raised retain vitality. The convention was among several treaties returned to the President by direction of a Senate resolution of April 17, 1947, never having been acted upon by the Senate. This action did not reflect a reversal of the Department's support of the convention, which is highly technical and which proved to be extremely controversial. "The Department of State in principle favors the enactment of the proposed legislation for the following reasons: "1. The bill would bring into conformity with the collision law of the rest of the maritime world the law of the United States with respect to the fixing of degree of fault, on the basis of which the damages are apportioned, in the case of collisions between vessels. Foreign courts are free to fix the degree of liability of the respective vessels on the basis of the number and gravity of the navigational faults committed by each in cases where both are to blame. Our law in such cases requires that the damages be shared equally, although one vessel may have been grossly at fault and the other may have been blameworthy in a very minor degree. This situation gives rise to many inconsistencies. To cite only two, on the Canadian side of the Great Lakes the proportionate fault rule applies but on the American side the law calls for equal division in both-to-blame cases. Also, American courts have refused to apply the convention, even in cases where the collision occurred on the high seas and both ships were under the registries of countries which were parties to the convention. "2. The bill would permit our own law to be administered in a more consistent and predictable manner. For examples, courts in some cases have applied a major-minor fault rule whereunder, to avoid hard decisions, they have decided not to notice or give any weight to the fault of the less offending vessel. The rule is characterized in Gilmore and Black, "Law of Admiralty (1957)," page 403, as vague and unreliable. The bill, if enacted, would probably also assist in clarifying application of the rule of the Pennsylvania 86 U.S. (19 Wall.) 125– 136 (1873) which is to the effect that when a ship in collision is in violation of a statutory rule intended to prevent collisions it is automatically presumed that her fault contributed to the collision unless it is shown that this fault could not have so contributed. Admiralty courts have not always been in complete agreement as to the manner of proof required to show, not that the fault did not, but that it could not have contributed to the collision. "3. The bill, by bringing U.S. collision law into conformity with that of the rest of the maritime world and by eliminating many uncertainties would put an end to much of the "forum-shopping" by parties to collision litigation who, quite naturally, seek to arrange for the proceedings to be held in the jurisdiction most favorable to their particular interests. "4. The bill would establish generally the statute of limitations of 2 years within which maritime collision suits must be brought. Present law provides for a 2-year limit, but it is applicable only to suits against Government-owned vessels. This proposed extension would replace the rule of laches now generally applicable under U.S. law and would constitute a suitable and desirable alteration. "The proposed legislation would, it is true, have the effect of changing the existing situation, under U.S. law, with respect to the liability of the owners of the vessels to the owners of the cargo they are carrying at the time of the collision. The Department understands that, insofar as the cargo insurance is concerned, generally the insurance rate, being governed by competition, has been the same for a given commodity carried on a given route regardless of whether the carrier has been an American vessel (not governed by the principles of the 1910 convention) or a foreign vessel whose government is a party to the convention. It assumes the competitive situation will continue to be the controlling factor if H.R. 7911 is enacted. "The Bureau of the Budget advises that, from the standpoint of the administration's program, there is no objection to the presentation of this report for the consideration of the committee." S. 2314 (H.R. 7912), a bill to limit the liability of shipowners, and for other purposes. "The bill proposes to enact into U.S. law substantially the provisions of the International Convention on the Limitation of Shipowners' Liability, written at the Diplomatic Conference on Maritime Law, Brussels, September 30-October 10, 1957. "The United States was represented at the Brussels Conference, and its delegation was successful in securing most U.S. objectives. The delegation recommended that the convention be studied by interested Government departments and by interested groups and associations in private industry, and that the convention be submitted to the Senate or that appropriate legislation should be submitted to the Congress if within a reasonable time no serious reason developed which would lead the Secretary of State to believe that such course would not be appropriate. Such studies were initiated, and although some of the Government departments favored U.S. adoption of the convention, there appeared to be, until recently, a lack of interest on the part of private associations and individuals who would be most affected if the convention were adopted. In view of the apparent lack of support, action by the Department was held in abeyance. "The Department of State favors the enactment of the proposed legislation. for the following reasons: "1. The bill would permit the shipowner to limit his liability and that of his ship, with respect to claims arising from loss of life of, or personal injury to, any person being carried in the ship, and loss of, or damage to, any property on board the ship, and in some cases to other persons, unless the occurence giving rise to the claim resulted from the actual fault or privity of the owner. Maritime countries generally have legislation of this type in force, but the extent to which liability may be limited under the statutes and the limitation proceedings authorized thereunder vary widely as between different countries. Uniformity throughout the maritime world would be highly desirable. A particularly desirable result would be to put an end to "forum-shopping" by claimants and by shipowners who, quite naturally, seek to arrange for the proceedings to be held in the jurisdiction most favorable to their particular interests. "2. The system proposed by the convention and reflected in the bill H.R. 7912 is considered to be a reasonable liberalization of the limitation provisions of present U.S. law, and would be more equitable to the claimant in many cases. This is mainly true because the amount of the limitation fund is fixed at a certain, uniform figure, even though the vessel may be lost or badly damaged as a result of the casualty. "The Department assumes that the Committee on Merchant Marine and Fisheries will also invite the comments of the Department of Commerce (Maritime Administration, Justice (Admiralty), and Navy (Judge Advocate General and Military Sea Transport Service) since these would appear to be directly concerned by the proposed legislation. "The Bureau of the Budget advises that, from the standpoint of the administration's program, there is no objection to the presentation of this report for the consideration of the committee." Sincerely yours, FREDERICK G. DUTTON, Assistant Secretary (For the Secretary of State). THE SECRETARY OF COMMERCE, Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in further reply to your request for the views of this Department with respect to S. 2313, a bill to unify apportionment of liability in cases of collision between vessels and related casualties. The Department recommends favorable consideration of the bill. |