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

602 COMITE MARITIME INTERNATIONALThe Travaux Préparatoires of the Hague and Hague-Visby Rulesthey will hold good. As far as my country is concerned I am rather sure that an appropriatebill of lading clause will do.For this reason I have little doubt that the recommendation which has been madein the report of the sub-committee would stand a certain chance of being added on thestatute book in my country at least as far as paragraphs 1 to 3 are concerned. I shouldadd however that this would inevitably mean inserting a rule on tort into the law ofcontract, and this of course is a matter of principle which may easily become injudiciousand for this reason some hesitation seems to be justified as to whether on thispoint of [52] principle the recommendation as contained in paragraphs 1 to 3 wouldbe passed to legislations.The real trouble however arises over paragraph 4 and the suggested addition to Article4. It is very remarkable that in almost every report by national associations thereis disagreement with these two suggestions and they really are the crucial point of thewhole matter, and indeed they touch at the root of the matter of a possible upsettingof one basic principle on which the Hague Rules are founded as at present. If one addsthat suggested paragraph 7 to Article 4 it is certainly very doubtful where the restrictionto the exception to this article begins and where it ends.Now therefore the question arises whether it is possible to restrict the recommendationto paragraphs 1 to 3. In my opinion it is not possible. From information I havereceived there seems to be a real probability that if this recommendation as made bythe Sub-Committee would be followed up, Governments would demand that it besupplemented by No. 4 and in addition to Article 4 of the Rules, and I do not see howwe could avert such a demand. The result would be that the Rules would be altered ina way which we have certainly not wanted.In concluding I would again say that I fully appreciate the reasons which are behindthis suggested recommendation. I only fear that the primary effect of this recommendationwill by far be outweighed by the secondary fact which I have just mentionedand for this reason, Mr. Chairman. I move that this recommendation should notbe passed.[53]Mr. J. Loeff (Netherlands). Mr. Chairman, ladies and gentlemen, as I have alreadysaid yesterday on behalf of the Netherlands delegation our delegation is in full sympathywith the idea developed by the British delegation, but we are strongly opposed tothe idea of using the Hague Rules in this connection. What we really do not understandis this. In the civil law, by which I mean very roughly speaking the law of continentalEurope, it is possible in a contract between A and B to mention C in order togive him certain rights provided of course that he really indicates his intention to usethese rights. That is a very old principle, I think it even arises in Roman law, and as explainedvery clearly by Mr. Miller it does not exist in English law. I think Mr. Millersaid also very clearly that he regrets the absence of the principle in English law. NowI say again we are in full sympathy with the idea of that but, firstly, the Hague Rulesare not the place for putting in that alteration, it would not even work and, secondly,I am not standing here to advise our English friends on their own legislature but whydon’t you alter that principle? As far as I know there have been amendments to thecommon law by statute, for instance if I am correct the specifically Anglo-Saxon doctrineof frustration has been laid down in a special act. Why don’t you alter the generalprinciple? It would be to the benefit of a lot of people who, if the proposal is adopted,would not have the possibility of relying on this amendment in your law.Now the answer to that by Mr. Miller is “Look here, we can’t do that, you are goingtoo far” and therefore we have to alter the Hague Rules. Now perhaps it is ratherimpertinent, but I would like to ask Mr. Miller a question in this respect.