United States, Cuba, and Chile, have since ratified or adhered to this convention which is now the law of all the major maritime nations, except the United States. S. 2313, if enacted, would implement the convention upon formal adherence to it by the United States.

Enactment of S. 2313 would change the admiralty and maritime law of the United States in three principal respects. The core of the bill and the convention, and the most important respect in which they would change the present law of the United States, is the provision that in cases of collision between ships, where both ships are to blame, the damages resulting from the collision shall be divided between the ships in proportion to the gravity of their respective faults; however, if it is not possible to establish the degree of the respective faults, or if it appears the faults are equal, the liability shall be equally apportioned. Under the existing U.S. law, the total damages in a both-to-blame situation are divided equally between the vessels involved, regardless of how much the fault of one ship may have exceeded that of the other. The proportionate-fault rule is considered fair and equitable, and is preferable to our present arbitrary rule of divided damages.

The concept of proportionate fault is not new in U.S. legislation; it is applicable to issues of contributory negligence in litigation under the Death on the High Seas Act. Foreign courts that apply the rule of proportionate damages have not encountered particular difficulty in administering it.

The United States divided damages rule has repeatedly been criticized by our courts who have at times used various techniques to ameliorate its harshness, such as following the major-minor fault rule under which the vessel which is guilty of gross negligence is held liable for all the damages and the vessel which is guilty of trivial negligence is not held liable for any damages. Recently, the U.S. Court of Appeals, Third Circuit, in petitions of Oskar Tiedemann & Co, and of the United States, involving a most serious collision between the USNS Mission San Francisco and SS Elna II, stated:

It seems too bad that the Elna-whose fault was slight-should be tarred with the same stick as the Mission-whose faults were grave-in this case. If we had a rule which divided responsibility in proportion to the negligence of the parties, as is the case in many other countries, we could make an equitable adjustment. But our American rule of even division of the damages makes for some hard cases and this is one. With regret, the judgment as to the Elna will be affirmed.

Under the terms of the bill, liability for personal injuries and deaths resulting from collisions would also be governed by the proportionatefault rule. The bill provides that the vessels in fault shall be jointly as well as severally liable to third parties in such cases.

Secondly, the bill and the convention would alter to some degree the liability of the vessels in collision to the owners of cargo carried on the vessels. When both vessels are to blame, the present U.S. law allows the cargo of either vessel to sue the other vessel for the entire cargo damage, but it does not allow the cargo to recover from its own carrying vessel if that vessel has met the statutory requirements in regard to the exercise of due diligence with respect to seaworthiness, manning, equipment, and proper stowage.

Adherence to the convention will make no change in this doctrine, also observed by most of the maritime countries. However, in a

both-to-blame collision, the noncarrying vessel is then allowed, under the admiralty law doctrine of contribution, to collect from the carrying vessel one-half of the damage which the former was required to pay to the cargo of that vessel, regardless of the degree of its fault, thus indirectly contravening the Harter Act and the Carriage of Goods by Sea Act which declare that a vessel owner who uses due diligence to make his vessel seaworthy shall not be liable for loss of or damage to cargo due to an error in navigation. Under the convention and the bill, cargo which is lost or damaged in collision recovers from each vessel that percentage of its loss which corresponds with the percentage of fault of that vessel, with no cross-contribution between them. In other words, only if the carrying vessel has not complied with the Harter Act or COGSA will the cargo be allowed to recover that percentage of its loss corresponding to the percentage of fault of the carrying vessel.

I might say, parenthetically that this basic doctrine is based upon the concept that a maritime voyage is in the nature of a joint undertaking between the owner of the cargo and the owner of the vessel and, therefore, if the owner of the vessel has carried out all of his obligations toward the owner of the cargo by making proper allowance in advance for the storage of the cargo and for the seaworthiness of the vessel, he should not be obligated to the owner of the cargo for any accident that happens to occur during the course of the voyage as a result of an error in navigation.

The doctrine is sound, but it was felt that it caused some difficulty in the Supreme Court case, and thus as often happens, a hard case resulted in bad law, which permitted by indirect methods the circumvention of these two U.S. statutes and this basic admiralty principal. Now, thirdly, S. 2313 would establish a 2-year statute of limitations to govern litigation arising out of maritime collisions; a 1-year statute of limitations would apply to suits for contribution in respect of damages caused by death or personal injury. At present, there is no specific time limit for the commencement of such suits under American law, only the rule of laches, which as the committee realizes is an equitable rule with no specific time, except as to siuts agains Government-owned and operated vessels where a 2-year statute of limitations does apply.

Section 7 of the bill would abolish the presumption of fault under the so-called standby statute to conform with article 6 of the Brussels Convention. This statute provides that, in case of collision between two vessels, if the master of either vessel fails, without reasonable cause, to stay by the other vessel to give aid and to comply with certain other requirements, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default. However, the courts have not applied this statute in presumption of fault issue and, accordingly, its repeal would not substantively change our maritime law.

In 1937, President Roosevelt requested the advice and consent of the Senate to adherence to this Brussels Convention of 1910. The Senate Committee on Foreign Relations recommended that the Senate advise and consent to the ratification of the convention. The 76th Congress did not take action on the request for advice and consent.

A factor of paramount importance, aside from the substantive merits of the provisions of the bill, is the need to bring about worldwide uniformity in admiralty and maritime law, a subject of international scope and concern. Endorsement by the United States of the principle of international uniformity of maritime law is evident from the fact that it is a party to many multilateral maritime conventions. The enactment of this bill would promote this end by bringing the collision liability law of the United States into harmony with the law of the rest of the maritime world. The resultant uniformity will dispel uncertainties as to rights and liabilities, and will markedly decrease the tendency of litigants to shop around for the most favorable forum in which to bring suit.

The Bureau of the Budget advises there is no objection to the submission of this statement from the standpoint of the administration's program.

Senator BARTLETT. I guess you might as well go ahead with our other statement, and then there may be a question or two.

Mr. SINGMAN. All right, sir.

May I point out at this point, Senator, that I would like to call to the attention of the subcommittee a typographical error in the bill on page 3, line 24. The capital letter B should be a lower case letter b, since it makes a reference back to section 4(b), and if the committee will turn to line 13 of page 2, it will notice that the b there is the lower case b.

However, I understand that additional amendments or suggested alternative language will be suggested later in these proceedings and it will obviate the necessity of that change if the committee should accept those suggestions.

Senator BARTLETT. Thank you.

Mr. SINGMAN. Now, turning to S. 2314, we recommend favorable consideration of this bill as well.

This bill would repeal certain of the statutes on shipowners' limitations of liability, and my statement has a list of those statutes. And the bill will replace them with more progressive legislation that would be comparable to the provisions of the entire National Convention Relating to the Limitations of the Liability of the Owners of Seagoing Ships which was adopted at the 10th Diplomatic Conference on Private Maritime Law at Brussels, October 10, 1957.

I might say parenthetically at this point, Mr. Chairman, that the Maritime Administration was extremely active in that convention and participated to a great extent in the deliberations of the delegation before the convention and at the convention, and accordingly, we are most interested in this bill.

Senator BARTLETT. Off the record. (Discussion off the record.)

Senator BARTLETT. On the record.

Mr. SINGMAN. The United States was not a signatory to the convention, nor has it since deposited an instrument of accession; although its delegation actively participated in the draft of the convention. The convention has not yet come into force, since the necessary number, 10, of instruments of ratification, have not been filed. The provisions of the bill are substantially the same as those of the convention.

Under existing U.S. statutes, a shipowner is allowed to limit his aggregate liability arising out of a marine case you will tie to the value of the vessel, after the occurrence, plus the pending freight, subject to a minimum of $60 per ton of the vessel's tonnage insofar as claims for loss of life and personal injury are concerned.

Under these statutes, tonnage of a seagoing steam or motor vessel is here gross tonnage without deduction on account of engineroom, and tonnage of a seagoing sailing vessel is here registered tonnage, including space occupied by the crew.

Mr. BOURBON. Where are you?

Mr. SINGMAN. I am on page 2 for a statement on S. 2314.

Now, the proposed legislation would institute a system whereby the owner's aggregate liability, and that of his ship, would be limited to an amount equivalent to 3,100 "Poincare" gold francs-about $207-per ton of the ship's tonnage. Of this fund, 2,100 francs$140 per ton is earmarked exclusively for the payment of personal injury and death claims and, if the first portion is not sufficient to pay the personal injury and death claims in full, the unpaid balance of such claims ranks ratably with the property claims for payment against the section portion, 1,000 francs per ton-$67. "Tonnage" in the bill is defined as (1) net tonnage plus the amount deducted from gross tonnage for engineroom space in computing net tonnage, or (2) 300 tons, whichever is greater. Under the bill, as under existing U.S. law, the owner would not be allowed to limit his liability, and the liability of his ship, if the casualty resulted from his actual fault or privity, such, for example, his failure to make the ship seaworthy before the voyage began.

The legal principle that allows shipowners to limit liability is of ancient origin. It was first codified in U.S. law in 1851. The law of every maritime nation permits owners to limit liability to some extent through one system or another. This concept springs from the pragmatic need to insulate shipowners from the ruinous liability that could result from marine casualties. Also, the ship, unlike other property, normally operates in distant areas where the owner cannot personally see to its safe navigation and management. Because of this unique absentee ownership, he is relieved, in part, from the consequences of torts, such as negligence in navigation, unless the casualty giving rise to the claims resulted from his own fault or privity.

Under our present statutory formula, the limitation fund is basically the equivalent of the value of the ship after the casualty, somewhat akin to the doctrine of abandonment of the ship to the claimants. Statutory amendments in 1936 added the $60 per ton increment as a minimum for the sole benefit of personal injury and death claimants. Where the ship is lost, if the court allows the owner to limit his liability, those who have suffered property damage recover nothing, except some comparatively small pro rata share of the freight pending on the current voyage.

I might point out since freight almost is universally prepaid today, there is often very little, if any, freight pending.

Personal injury and death claimants would recover pro rata portions of a sum based on $60 per ton of the ship's tonnage.

In comparison, the bill would establish a fund which is fixed in amount, regardless of the value or the condition of the ship after

the casualty, based on $207 per ton of vessel tonnage if personal claims are involved, or $67 per ton if only property damage is involved. The Department considers this to be an equitable monetary adjustment of the existing formula. The decrease in the value of the dollar since the enactment of the 1936 amendment provides a sound justification for this change. Under the bill the amount of the fund is certain, independent of issues involving the value of the ship. Under existing law, all claims arising during the same voyage of the ship must share in a single fund, while the bill would create a separate fund for each occurrence.

It is of great importance that there be international uniformity in admiralty and maritime law. The rights and liabilities of shipowners and claimants should not vary depending upon the country in whose courts litigation is brought.

Under the bill, ships which would be included are (1) all seagoing vessels and (2) all vessels used on lakes or rivers or in inland navigation, including pleasure yachts, tugs, towboats, towing vessels, tank vessels, fishing vessels, or their tenders, canal boats, scows, car floats, barges, lighters, and all nondescript self-propelled and non-self-propelled vessels. Under existing law, the above-mentioned types of vessels are not covered by the provisions of 46 U.S.C. 183 (b), (c), (d), and (e) nor 183b, and thus those vessels do not come within the $60 per ton minimum requirement with respect to claims for loss of life or bodily injury, and related items.

Further, with respect to those types of ships, Mr. Chairman, in the event there is a loss of life and the vessel is his loss, there can be no recovery, even for loss of life or personal injury.

This bill provides that the exclusive original jurisdiction of all proceedings for limitation of liability shall be with the district courts of the United States in admiralty. With respect to the fault or privity of the petitioner for limitation of liability, the bill provides that, after a claimant has established the petitioner's liability, the petitioner shall have the burden of proving absence of actual fault or privity. These provisions would not change existing U.S. law.

The Bureau of the Budget advises there is no objection to the submission of the statement from the standpoint of the administration's program.

As I pointed out, Mr. Chairman, I have also this supplemental statement. I apologize for the length of these 3 statements, but as we prepared these statements we felt there were additional points that should be made and they are included in the supplemental statement, and with your permission, I will proceed to read.

Senator BARTLETT. If you will, please.

Mr. SINGMAN. As previously indicated, the Department of Commerce and the Maritime Administration are in favor of both S. 2313apportionment of vessel collision liability-and S. 2314-limitation of shipowner's liability. I would like to make certain supplementary remarks which are applicable in some degree to both bills.

Although the limitation of liability bill is more favorable to cargo and property damage claimants than the present system, the collision bil does take away from the cargo interests a subrogation right they have in the United States, but have not had elsewhere since 1910, or at any rate since ratification by the other signatories.