of five years, the launching of projectiles and explosives from balloons, or by other new methods of a similar nature."

It is provided, however, that the Declaration shall be only binding upon the contracting parties in case of war between two or more of them, and that it is not binding against a non-contracting Power. This Declaration was signed by Turkey, but does not appear to have been signed by Italy. In any case, limited to a period of five years, it expired September 4, 1905, approximately two years before the meeting of the Second Hague Conference. The Second Hague Conference renewed the Declaration "for a period extending to the close of the Third Peace Conference." In view of the alleged actions of Italy, it is advisable to quote a portion of the Declaration which is in point: "The present Declaration is only binding on the contracting Powers in case of war between two or more of them. It shall cease to be binding from the time when, in a war between the contracting Powers, one of the belligerents is joined by a non-contracting Power." It is thus seen that the Declaration can be of no effect, unless it be a moral one, upon noncontracting Powers, and that contracting Powers are freed from the obligation in case of a war with a non-contracting belligerent. Declaration, like its predecessor, was signed by Turkey, but it was not signed by Italy. In view of these circumstances, Italy is free to employ dirigible balloons and to drop projectiles upon Turkish soldiers, and to use the balloons as an instrumentality of warfare in any and all ways not forbidden by the laws of war. Turkey signed the Declaration, but as Italy is not a party to it, it is evident that by the express language of the Declaration, it is not binding upon Turkey in the war with Italy. Therefore, neither party is, during the present war, bound by the terms of the Declaration.

It is necessary, however, to examine the Convention Respecting the Laws and Customs of War on Land, and the regulations annexed thereto, adopted by the Second Hague Conference, because Italy and Turkey are signatories of it and it contains an article which has a direct bearing on the present question. Thus, Article 25 of the Convention of 1899 states: "The attack or bombardment of towns, villages, habitations, or buildings which are not defended is prohibited." This article was revised by the Second Hague Conference to read as follows: "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." It is thus seen that Article 25 of the Convention of 1899 was modified in 1907, and the pro

ceedings of the Second Hague Conference show that the modification was introduced for the express purpose of prohibiting belligerents from bombarding undefended towns, villages, etc., by means of projectiles from balloons.

An interesting discussion arose in connection with the Belgian proposition to renew the Declaration of 1899. The Russian delegation proposed a project which is immaterial for the present discussion. The Italian delegation proposed the following articles: "1. It is prohibited to discharge projectiles and explosives from balloons which are not dirigible and manned by a military force. 2. The bombardment by military balloons is subjected to the same restrictions accepted for land and naval warfare in all ways which are compatible with this new mode of combat." It was suggested by the French delegation that the Italian proposition should be considered in connection with Article 25 of the Regulations Respecting the Laws and Customs of War on Land, and that it was only necessary to add to the text of the article the expression "by whatever means in order to prevent the bombardment by balloons of undefended cities, villages, etc. After much discussion, the French view prevailed, Russia and Italy withdrew their amendments, and the clause proposed by the French delegation was, without dissent, added to Article 25. (Deuxième Conférence de la Paix, Actes et Documents, Vol. I, pp. 104106.) Both Italy and Turkey signed, without reservations, the convention to which the regulations were annexed, and are therefore bound by Article 25.

In this connection Article 27 of the same convention should be considered: "In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes." In view of the discussions in the Conference, it would appear, therefore, that the belligerents have deprived themselves of the right to bombard "by whatever means undefended cities, etc., and that in permissible sieges and bombardments certain classes of property are to be protected from the effects of war, as far as this is possible. It therefore follows that while either belligerent may use balloons, they must not launch projectiles upon undefended cities, towns, etc., and in sieges and bombardments of fortified cities and towns, unoffending property of the kind mentioned in Article 27 must be spared as far as possible.

THE CONVENTIONS ON MARITIME LAW

On January 18 last the Senate of the United States advised and consented to the ratification of the Convention for the Unification of Certain Rules of Law regarding Assistance and. Salvage at Sea1 which was signed at Brussels September 23, 1910, by 54 delegates to the International Conference on Maritime Law representing 25 Powers, namely: Germany, Argentine, Austria, Hungary, Belgium, Brazil, Chile, Cuba, Denmark, Spain, United States, France, Great Britain, Greece, Italy, Japan, Mexico, Nicaragua, Norway, Holland, Portugal, Roumania, Russia, Sweden and Uruguay.

The treaty as signed is the same as that drafted at the nineteen hundred and nine session of the conference and commented upon editorially in our April, 1910, number, page 412, and in our January, 1911, number, page, 192, with the exception of apparently immaterial verbal changes in or additions to Articles 6, 7, 9, 16 and 18.

In view of the lengthy comment already made on this convention, in previous numbers of the JOURNAL, it will be sufficient at this time to supplement what has already been said by the following extract from the report of the American delegation to the Secretary of State which will serve to sum up the effect of this convention on American law:

At the opening of the conference we stated that we were authorized to sign the convention relating to collisions with certain reservations and that we were authorized to sign without reservations the convention relating to salvage. At the same time we stated that under the Constitution of the United States of America no treaty can become effective until approved by the Senate.

On September 23, 1910, we signed the convention relating to the law of salvage, making one reservation as follows:

The government of the United States of America declares that it reserves the right to adhere to said convention and to denounce it for the insular possessions of the United States of America.

*

The convention on salvage makes few changes in our own or the British law except that article 5 provides that "remuneration is due notwithstanding that the salvage services have been rendered by or to vessels belonging to the same owner." This provision will permit the officers and crew of a salving vessel to recover for their services notwithstanding identity of ownership. It will also affect the right of subrogation of underwriters. The provision would, of course, apply only in a limited number of cases; but we deemed the provision just and unobjectionable.

1 Printed in SUPPLEMENT, 4:126.

Article 9 contains a reasonable provision for salvors of human life, limiting the recovery, however, to cases where property also has been salved.

Article 10 prescribes a limitation period of two years for bringing suits for salvage.

On the same day, September 23, 1910, the Convention for the Unification of Certain Rules in regard to Collisions was also signed by the delegates of the same countries. This convention, however, has not as yet been approved by the Senate. As compared with the draft prepared at the session of 1909 of the conference, the signed convention contains certain modifications or additions to Articles 1, 10, 14, 16, and an "additional article" suspending the effect of Article 5 "until the high contracting parties shall have arrived at an agreement on the subject of the limitation of liability of shipowners."

As the printed report of the American delegation may not be available to all of our readers, and as the convention relating to collisions, if ratified, will change a well-settled rule of admiralty law in this country, it may not be out of place to reprint here certain extracts from this report: At the opening of the conference we stated that we were authorized to sign the convention relating to collisions with certain reservations. These reservations are as follows:

The delegates of the United States of America to the International Conference on Maritime Law deem it their duty to demand that entry be made in the protocol relating to the international conventions for the unification of certain rules in the matter of collisions, that said delegates sign said convention in the name of the United States only under the following reservations:

1. The provisions of article 4 of said convention shall not affect the operation or enforcement of the act of Congress entitled "An act relating to navigation of vessels," etc., approved February 13, 1893, commonly known as the Harter Act.

2. The provisions of articles 1 and 4 of said convention shall not create in the United States a right of action for damages caused by death until such provisions shall have been supported by appropriate action of the Congress of the United States.

3. The provisions of article 6 of said convention shall not in any way affect legal presumptions created by the laws of the United States.

4. The provisions of said convention with respect to fault and damages, as well as remedies, shall be applicable in the United States only in the courts of admiralty and maritime jurisdiction.

On September 23, 1910, we signed the convention, subject to the foregoing reservations and subject also to the reservation which we made with regard to the convention on salvage, as follows:

The government of the United States of America declares that it reserves the right to adhere to said conventions and to denounce them for the insular possessions of the United States of America.

The most important change in our law made by the convention on collisions is the substitution of several liability in proportion to the gravity of fault for joint liability to be shared equally by the tort feasors as between themselves. Article 4 provides that

If two or more vessels are in fault, the liability of each vessel is in proportion to the degree of the faults respectively committed, provided that, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or, if it appears that the faults are equal, the liability is apportioned equally.

This article provides further that damages caused to cargoes or property of crews, passengers, or other persons on board a vessel are to be borne by the vessels in fault "in the above proportions."

In cases of mutual fault our courts of admiralty divide the damages arbitrarily in equal parts, the vessel slightly at fault and the vessel grossly at fault bearing the same burden.

In our report to the Secretary of State of the proceedings of the conference in 1909 we stated at length our reasons for recommending the adoption of a provision which apportions responsibility according to the degree of liability. We were convinced that proportional liability was not only more rational than our present rule, but was also thoroughly practicable. We expressly limited the effect of the new rule, however, so that it should be applied in the United States not in the common law courts, but only in courts of admiralty and maritime jurisdiction.

The extension of the rule of proportional liability to cargo damage undoubtedly limits the existing rights of cargo owners, who, under our present law in case of a collision, due to the fault of two vessels, may recover the whole of their damages from the noncarrying vessel even though the carrying vessel is protected from liability by the Harter Act. Cargo owners are thus able to take advantage of an anomalous situation. If a cargo is lost or damaged through a collision resulting from a fault or error in navigation or in the management of a carrying vessel, the owner of which has used due diligence to make her seaworthy, the Harter Act deprives the cargo owner of any remedy. If the loss results from the negligence of the carrying vessel, combined with the negligence of a noncarrying vessel, the cargo owner may collect his whole damage from the noncarrying vessel, which pays not only for its own negligence, but for that of the carrying vessel, obtaining, however, under the decisions of the Supreme Court, notwithstanding the Harter Act, contribution from the carrier. The result is that if a carrying vessel does all the damage it pays nothing; if it does part of the damage it pays one-half.

As the Harter Act, which we assume defines the policy of the United States, relieves shipowners from direct responsibility for injury to cargo, it seems logical that shipowners should be relieved from indirect responsibility.

Doubt having arisen as to the effect of articles 4 and 10 of the convention on the Harter Act, we made the reservation numbered 1. It was impossible to preserve the rule of our courts making the noncarrying vessel liable in the first instance for the whole amount of the damage caused by the cargo. Such a rule would contravene the underlying principles of the convention.