the travaux préparatoires hague rules hague-visby rules - Comite ...

160 COMITE MARITIME INTERNATIONALThe Travaux Préparatoires of the Hague and Hague-Visby RulesNow the situation is this. As I understand it, Mr. Prodromidés argued, what moredo you want than vice propre, latent defect, and the answer is that in practice latentdefect is no help whatever to the shipowner. During the last forty years in which I havebeen intimately engaged in maritime litigation in our country I cannot think of morethan a couple of cases in which latent defect was proved, and certainly in the secondof these I think the decision was wrong, because I was appearing for the cargo owner.However that may be, it is very rarely that vice propre succeeds. I am grateful to Mr.Prodromidés for putting his position largely on that ground because it does show theincredible injustice of the “Muncaster Castle” decision.The “Muncaster Castle” decision in the House of Lords is that it is no defence toa shipowner that the defect was concealed from him or his servants, that is really whatvice propre was intended to be by the framers. It is no defence that the vice was propre,as far as the shipowner or his servants were concerned, if it was a defect that waspatent not latent to anyone at all the shipowner has no defence. That was the“Muncaster Castle” decision. I don’t understand how anybody can defend the equityin that.[182]Let us see where we are. Before 1924 the shipowner could certainly, at least in ourlaw, it may have been different in the United States, exclude himself in the bill of ladingfrom any liability whatsoever except the liability to take the freight when it was offeredto him. That was rightly considered to be very unjust to the shipowners’ customerswho became more and more vociferous about it and the result was after twentyyears of sometimes very acrimonious argument this convention which we are nowconsidering was produced. It represented a bargain after a bitter struggle between carriersby sea on the one side and underwriters, shippers and consignees on the other.That is the history, no-one can deny it. Before that bargain was struck the Britishshipowner and may be the shipowner in continental countries as well had completefreedom of contract. It was then suggested to give that up in return for an exemptiondepending upon his exercise of due diligence which is in effect the exercise of due diligenceby other people, not by the shipowner but by other people. That is incredible.I have a fair knowledge of shipowners, not only in my own country but luckily for meelsewhere on the continent of Europe and in the United States, and all I can say is thatthey are not as dumb as that. It is a quite incredible bargain, and it is therefore uselessto say you can rely on latent defect, as it is no good to you, because if even the humblestemployee of the ship repairer knew of the defect it cannot be regarded as latent.[183]Now, gentlemen, regarding the pertinent questions raised by Mr. Loeff, who feelsin reading the reports of the “Muncaster Castle” case that the shipowners too easilyadmitted there was a defect, may I explain that. In our procedure in cases in the commercialcourts in this type of case the most important evidence is given by surveyorswho are consulted by both sides, the shipowner on the one hand and the cargo interestson the other. In a case of this kind, and in the “Muncaster Castle” case, independentsurveyors were employed on both sides in addition to the regular technical officersof the shipowners and underwriters such as the masters, marine engineers, navalarchitects and marine surveyors. All these gentlemen’s reports were available to theparties before the action, according to our procedure each party must disclose to theother party the reports of his own technical officers, and it was quite apparent fromthese reports that there was a defect in the ship due to the negligence of the ship repairers.It would have been idle, a waste of money and a waste of the judge’s time to