BRITISH-AMERICAN JOINT ARBITRATION BOARD

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<ul><li><p>BRITISH-AMERICAN JOINT ARBITRATION BOARDAuthor(s): Duncan Campbell LeeSource: American Bar Association Journal, Vol. 8, No. 12 (DECEMBER, 1922), pp. 763-765Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25711097 .Accessed: 21/05/2014 22:44</p><p>Your use of the JSTOR archive indicates your acceptance of the Terms &amp; Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp</p><p> .JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.</p><p> .</p><p>American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to AmericanBar Association Journal.</p><p>http://www.jstor.org </p><p>This content downloaded from 193.105.154.115 on Wed, 21 May 2014 22:44:35 PMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/action/showPublisher?publisherCode=abahttp://www.jstor.org/stable/25711097?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>BRITISH-AMERICAN JOINT ARBITRATION BOARD </p><p>Account of How Over One Hundred Shipping Disputes Between Great Britain and the United States Were Satisfactorily Settled by a Tribunal of Which the General Public </p><p>Has Heard Little </p><p>By Duncan Campbell Lee, LL. B. </p><p>Of the New York Bar, and Barrister-at-Law of the Middle Temple, London </p><p>HE last twenty years have seen a large increase in the number of arbitration agreements between states. These have been almost uniformly success </p><p>ful in adjusting differences which without such pro cedure might easily have produced much international friction and bitterness or even led to actual strife. </p><p>During the recent European and World War, however, there was developed a new arbitration procedure. It involved, not the solution of any large outstanding in ternational problems, but the settling of a considerable number of what were really departmental matters, which had never heretofore been submitted to arbitra tion. </p><p>The "British American Joint Arbitration Board," formed to deal with collisions between ships of the British and American Governments, and salvage and other services rendered to those ships, constitutes this remarkable and interesting departure. To appreciate the difficulties which had to be met, and the amount of </p><p>work which had to be done, a short outline of the posi tion as it stood before the Board was formed, is neces sary. </p><p>Before the United States declared war on Ger many, the number of ships in European waters was comparatively small. Furthermore, the control of British shipping exercised by British governmental departments, though drastic, did not involve the trans fer to the British Government of any large proportion of British tonnage. From 1917 onwards, however, in order more effectively to secure food supplies for the people of Great Britain, the British Ministry of Ship ping increased very largely the number of ships under requisition. The result was that soon the Ministry of Shipping controlled an enormous fleet of merchant ships. Few of these were the actual property of the British Government, but they were requisitioned or chartered, upon such terms that so far as concerned the accidents of navigation and damage inflicted or sustained by a ship, the British Government was, to all intents and purposes, the owner. </p><p>In ordinary circumstances, if ship "A" collides with ship "B" and both are owned by private indi viduals, there is little difficulty of procedure. The owners of the ship have recourse to the courts to obtain </p><p>compensation. But where a ship is owned by a govern ment, or is so controlled by a government that respon sibility for injury rests with that government, interna tional comity precludes foreign private owners from </p><p>presenting any effective claim in a court of law. By international usage, courts of law refuse to deal with claims made against foreign sovereign states. </p><p>So long as the British Government owned merely war-ships, no real difficulties arose. The accidents in which such war-ships were involved in collision, or were the subject of salvage assistance, were few and far between. But such cases as did arise were not per </p><p>mitted to embarrass the British Government merely because a suitable procedure was not at hand. They </p><p>at once brought the case within the jurisdiction of the British Courts by adopting an interesting device. The Government furnished the name of the commanding officer of the war-ship in collision to the private indi viduals who considered themselves injured or aggrieved by the collision. These persons commenced an action </p><p>against such commanding officer, the British Govern ment conducting legal proceedings on behalf of the </p><p>officer, and the government also paid, as a matter of </p><p>bounty, whatever was adjudged to be due and payable 6y their servant. This procedure, though cumbersome, served to deal out justice between British Government </p><p>ships and privately owned ships, whether British or not. </p><p>A procedure such a$ this, however, was valueless when ships of foreign governments were involved. Such disputes were generally settled through diplomatic channels. When large numbers of American warships began to operate in European waters and when, upon the commencement and increase of activities of the </p><p>Emergency Fleet Corporation, many formerly privately owned ships were transferred to the ownership of the American Government, or came under its control, and also operated in European waters, the number of dis </p><p>putes arising out of collisions between ships owned and controlled respectively by the British and American Governments increased enormously. </p><p>This increase was due not only to the larger num ber of ships so owned and controlled, but also to the conditions of wartime navigation. Ships traversing areas in which traffic was frequent, were ordered to steam at night either entirely without the display of </p><p>navigation lights, or with their navigation lights very much dimmed. They were instructed not to sound the </p><p>ordinary manoeuvering signals as provided in the regu lations. They were ordered to refrain from sounding signals for fog in submarine-infested areas. They had to assemble in convoy stations in bad weather, to man oeuver in convoy in difficult weather, and to manoeuver in convoy in fog. Ships sailing in convoy had to zig zag in convoy according to complicated and continually changing plans. For these reasons, the number of collisions rapidly increased; and the number of occa sions when ships had to receive or render salvage ser vices likewise increased, owing mainly to submarine </p><p>activity. The difficulties of the position were two, and they </p><p>were real. First, there was no procedure apart from the cumbersome method of going through regular diplomatic channels, of dealing with questions arising between British and American ships owned and con </p><p>trolled by their respective governments; and secondly, there was no procedure available by which non-Ameri can private owners could obtain compensation in American courts for damage received from, or salvage services rendered to, American Government ships. And, furthermore, even in connection with ships not </p><p>763 </p><p>This content downloaded from 193.105.154.115 on Wed, 21 May 2014 22:44:35 PMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>764 American Bar Association Journal </p><p>under requisition or free of control by the Govern ments, the Governments were nevertheless interested. They had as a matter of policy undertaken war risks in connection with shipping under their flags, and they </p><p>were consequently much concerned with the question as to whether, e.g. a collision between an American </p><p>privately owned and controlled ship, was due to the </p><p>negligent navigation of either ship or was the unavoid able accident arising solely out of navigation under war-time conditions. In the latter case, they would be </p><p>responsible under the particular insurance scheme each </p><p>country had adopted. In November 1918, the difficulties of the position </p><p>had become marked, and the scheme which ultimately developed into the "Joint International Arbitration Board" was mooted. Negotiations took place between the British Ministry of Shipping and the United States Naval Headquarters in London, and a method of solu tion was arrived at which satisfied everybody. </p><p>Much credit must be given to Commander Mc </p><p>Grann, U. S. N. (Ret) and in an especial degree to Commander Robert K. Wright, U. S. N, R. F., for their able and tactful handling and carrying through of these negotiations to a successful issue. </p><p>The two Joint International Boards were formed; one to deal with collisions and salvages in, roughly, European waters; the other to deal with these matters in so-called American and Western waters. They were to sit in London and Washington respectively. So as to meet the possibility of the members of the Board not being unanimous in their judgment on any case, it was decided that the membership of each Board should be odd in number, so that a majority award would con clude the dispute. Both nautical and legal experience were required in the Tribunal. It was therefore decided that the London Board was to consist of two American and two British members, such members to be either sailors, or lawyers with Admiralty experience, and a fifth presiding member who was to be a member of the British Admiralty Bar of eminent juristic repute. Similarly the Washington Board was to consist of two American and two British members, and the presiding fifth member was to be an eminent American Admir </p><p>alty jurist. Thus the devisers of this ingenious scheme overcame the difficulties of possible stalemate in the event of a tie resulting from the membership of either Board being even in number; and of possible suspicion or jealousy had there been only one board and had the </p><p>majority of its members been either British or Ameri can. It should be noted that the possibility of having say a French, Dutch or Swiss member as the odd pre siding member of any Board seems never to have pre sented itself to the minds of anyone concerned in the </p><p>original negotiations. The Board in London was constituted; the Board </p><p>sat; the Board disposed of a large number of cases, and having regard to the way departmental business </p><p>throughout the world is conducted, the Board disposed of its cases with remarkable and unheard-of despatch. </p><p>The Board at Washington was never constituted and never sat. Reports, however, of the decisions given by the Board in London were so favorably received at Washington that the Solicitor to the United States </p><p>Navy Department on the 20th of September 1920, wrote to the secretary of the United States Navy as </p><p>follows: It appearing that the cases that would properly come </p><p>under the jurisdiction of the proposed Board to sit in Washington are limited in number, and it further </p><p>appearing that actions taken by the Board sitting in </p><p>London have been uniformly fair to this Government, it is believed that it is. in the interests of all concerned that the power and authority of the Board now sitting in London be extended so as to give jurisdiction to hear and determine all cases over which the proposed Board to sit in Washington would have exercised jur isdiction had it been organized, namely, the causes that have occurred or may occur in American and </p><p>Western waters, West of 33 degrees West Longitude, as provided in the agreement October 1st, 1919, cover </p><p>ing the period of the war. N </p><p>So the Board at Washington never came to birth, and the Board in London carried through the work </p><p>designed for both Boards. The greatest possible credit must be given to the </p><p>British presiding member, Mr. Butler Aspinall, K. C. For years this Barrister has acted as Arbitrator in matters in litigation involving questions of navigation, arising between ships of all nationalities. Never has his urbane courtesy or strict fair-mindedness and im </p><p>partiality been known to fail. Members of the Board have not been backward in speaking of the admirable </p><p>way the whole arbitration was conducted, and the absence at all times of anything that suggested par tisanship. Those who presented the cases for the </p><p>respective governments expressed their keen apprecia tion of the way the various causes were received by the Board as a whole and in particular by Mr. Aspinall, who presided over all the meetings. </p><p>The American members were originally Com mander Wright and Commander Jackson, U. S. N. </p><p>Commander Wright, who was responsible for all the American departmental work in connection with these </p><p>disputes remained on the Board throughout, but Com mander Jackson attended only a few meetings and </p><p>was </p><p>replaced by Commander H. L. Pence, U. S. N., and </p><p>subsequently by Commander W. R. Sexton, U. S. N. </p><p>The two British members were Mr. Norman Raeburn, K. C, an experienced and brilliant Admiralty lawyer, and Captain W. Munroe Kerr, C. B. E., R. N. who attended several meetings but was later replaced by Captain A. B. Hughes, C. B., and ultimately by Captain J. N. Webster, C. B., R. N. </p><p>In most of the disputed cases there were unani mous judgments; but in a few cases, a majority award was necessary. The cases disposed of numbered over one hundred and involved possible damages aggregating several million dollars. It is satisfactory to note that so far as concerned a considerable number of the dis </p><p>puted cases, the Board decided that there had been no </p><p>negligence on the part of anyone concerned, but that the casualties had been due to the unavoidable condi tions of war-time navigation. </p><p>So great was the satisfaction given by the work </p><p>of the Board, that it was decided to extend its jurisdic tion to embrace cases in which only British and Amer </p><p>ican war-ships were concerned. There had been a con </p><p>siderable number of collisions between such ships. These were, in the main, quickly settled by conference </p><p>between Commander Wright of the United States, and a representative of the British Admiralty. </p><p>The two </p><p>would read through the government reports of the </p><p>other side and in nearly every case came to an imme </p><p>diate decision that there was no negligence involved, or that one government or the other was clearly re </p><p>sponsible. The work of the Board has been completed; after </p><p>setting off all damages, costs and expenses, and strik </p><p>ing a balance, it was found that a sum of ?10,000 was </p><p>due and payable by the British Government to the </p><p>United States Treasury; and that sum has been paid? </p><p>This content downloaded from 193.105.154.115 on Wed, 21 May 2014 22:44:35 PMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>The Chinese Legal System 765 </p><p>a negligible sum compared with the...</p></li></ul>

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