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GENERAL SURVEY
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(a) To begin with, it seems clear, taking the replies as a whole, that the two-thirds majority of the Govern- ments at the Conference would not be secured either for the principle of referring the question entirely to the discretion of national law or for the principle of not allowing national law to provide for exceptions, even with such possibilities as to grading, transitional regulations or special licences as are referred to in the Italian or Belgian replies.
as
On the one hand, once the principle of a certain compulsory minimum of capacity for the performance of certain important duties in controlling the movements of the ship is not only already applied - though to varying extents by the great majority of maritime countries for their national vessels, but is also accepted by the Governments generally as one to be embodied in an international Convention, it would appear, the great majority of the Governments may be assumed to recognise, that the essence of any international treatment of the problem should be to endeavour to promote the application of the principle on as wide and uniform a scale as possible in the different merchant fleets concerned. On the other hand, the replies of the Governments as a whole clearly make it impossible to push such endeavours to the extreme or to what might be in effect their logical conclusion.
The replies taken generally thus indicate a middle course, viz. that, while recognising that national law should be free to provide for exceptions, the Draft Convention should endeavour to fix internationally certain definite limits to the exercise of this liberty. Further, it will have been seen that the cumulative effect of the great majority of the replies is to suggest that the purpose of the Draft Convention would be very largely negatived if the limits to be thus fixed were not restricted to some such "minor" exceptions as were contemplated in the report of the Committee of the Thirteenth Session of the Conference and in the Questionnaire.
(b) What precise limits, then, should the Draft Convention fix ?
It will have been noted that, while the other proposals or observations of the Governments are based on or can be reduced to the criterion of the type and tonnage of
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QUESTION 3
the vessel, two proposals are based on quite a different criterion, viz. the nature of the trade or industry engaged in these are the proposals to allow exceptions for vessels engaged in "coastal" and "home" trades and for the fishing industry as a whole.
:
(i) "Coastal" and "home" trades.
It seems difficult
to reconcile the proposal of the Irish Free State that exceptions should be allowed for all vessels engaged in these trades irrespective of their type and tonnage with its further proposal that for other vessels (which would include foreign-going vessels) a very low tonnage limit, say 15 tons, should be fixed. The difficulty arises more particularly from the fact that "home" trade as defined in the Irish Free State (and in Great Britain) includes navigation between a home port and any continental port between Brest and the Elbe and is thus really a form of international trade. It is appreciated, of course, that the vessels actually engaged in the two trades in question may well be officered by persons whose practical expe- rience and other qualifications furnish in fact guarantees for the proper control of the vessel and who would not be allowed to be in charge of their movements if the shipow- ner were not satisfied that he was committing his vessel into safe hands. It is clear, however, that these guarantees would not suffice for an international Convention, which has to fix equal legal obligations for the different countries. In any case, it would appear that the great majority of the Governments would consider it incompatible with the purposes of the Draft Convention to allow exceptions on the ground of the trade engaged in as such, irrespective of any other considerations.
(ii) Fishing. Somewhat similar observations would appear to apply to the proposal made by Germany and Great Britain to exclude the whole fishing industry as such. The German government indicates that the object of this proposal is to ensure that the maritime Conventions adopted by the Conference have the same scope (the Conference having in the past dealt with maritime fishing separately from other forms of maritime navigation). The British Government, in making the proposal, observes that the conditions of the fishing industry are in many respects entirely different from those of the mercantile marine. These observations raise the
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