¹ The text of the convention is reproduced below, p. 268.

² The Scandinavian countries abstained, on the ground of the high limit of liability;cf. below.

³ When the Eleventh Session of the Brussels Diplomatic Conference on Maritime Law opened in April, 1961, the world nuclear fleet already comprised over 25 ships.21 nuclear submarines and 2 surface units had been commissioned by the United StatesNavy. 27 nuclear submarines were under construction and 13 had been approved byCongress. It was known that the U.S.S.E. had commissioned a number of nuclearwarships and the icebreaker Lenin, which was already in operation in the Arctic Sea.A United Kingdom nuclear submarine was expected to be operational in 1963. As tonuclear merchant ships, the nuclear ship Savannah was scheduled to enter into operationin the near future. Plans for a European nuclear ship were being studied under theauspices of the European Nuclear Energy Agency of the O.E.C.D., and it was reportedthat the construction of a nuclear oceanographic ship was being considered in Japan.

⁴ See Doc. No. 3 of the Diplomatic Conference on Maritime Law, Brussels, 1961;Stason, Estep and Pierce, Atoms and the Law (University of Michigan Law School,1959); International Problems of Financial Protection against Nuclear Eisk, Harvard Law School and Atomic Industrial Forum (1959).

⁵ See Smets, Progress in Nuclear Energy, Law and Administration, Vol. 3, p. 89 ff.(1962). Note that even the so-called Windscale reactor incident did not cause any personal injuries or direct off-site damage.

⁶ See Atomic Energy Commission, Eeport on Theoretical Possibilities and Consequences of Major Accidents in Large Nuclear Power Plants (“Brookhaven Eeport”)(March, 1957), CCH Atomic Energy Law, p. 4036.

⁷ Especially where nuclear ships are concerned, the owner is likely to be a “ one-ship corporation” whose principal assets are the ship itself.

⁸ So-called Price-Anderson Amendment to the Atomic Energy Act of 1954, 71 Stat.576 (1957).

⁹ Convention on Third Party Liability in the Field of Nuclear Energy, signed at Paris July 29, 1960. 55 A.J.I.L. 1082 (1961).

¹⁰ The International Maritime Committee is a non-governmental organization in which some 20 national associations of maritime law are represented. It has traditionally been charged with the preparatory work for the Brussels Conference on Maritime Law. The so-called “Eijeka draft" was before the 1961/62 Brussels Conference as Doc. No. 2.

¹¹ The initiative for this co-operation was chiefly attributable to Mr. Sterling Cole,then Director General of the I.A.E.A.

¹² The Panel was composed of experts from Albania, Argentina, Belgium, Bulgaria,Canada, Czechoslovakia, Denmark, Federal Eepublic of Germany, Prance, Greece,India, Italy, Japan, Norway, Poland, Eumania, Sweden, Turkey, Ukrainian S.S.B.,U.S.S.E., United Kingdom, United States, Yugoslavia. Its chairman was H. E. Mr.Albert Lilar, President of the International Maritime Committee and President of the1961/62 Brussels Diplomatic Conference. The Panel's Eeport was submitted to theDiplomatic Conference as Doc. No. 3, and a revised version of the Eijeka draft conventionas Doc. No. 3-A.

¹³ ships not flying their flag, and the operation of nuclear ships flying the flag of a contracting state without a valid license or authorization granted by such state.

¹⁴ Except with regard to warships, where several countries asked that liability be unlimited. However, the Conference agreed to extend the benefit of a limit of liability to warships as well.

¹⁵ Proposals were thus put forward for a limit ranging from 50 to 75 million dollars. In the course of the Conference, insurance experts estimated that within a few years it might be possible to obtain insurance coverage up to 50 million dollars,but without automatic reinstatement.

¹⁶ See Doc. No. 3 of the Brussels Conference, pp. 20 and 21 and Annex II, pp. 36-39.

¹⁷ This is the estimated capacity of the insurance market in Europe: figures ranging from 5 to 15 million dollars have been adopted in national legislation in Italy, Japan,Sweden, Switzerland, and the United Kingdom, and in the Paris (O.E.E.C.) Convention for the liability actually imposed on the operator.

¹⁸ This might be done by an indemnification of the operator by the licensing state (as in the Price-Anderson Amendment, above), or by state reinsurance. In no event, however, can claimants be required to proceed separately against the licensing state,since the submission of the licensing state to the jurisdiction of foreign courts, or toordinary civil courts in many countries, might cause considerable difficulties.

¹⁹ This would occur in particular with regard to medical care, evacuation, retrainingand relocation of victims.

²⁰ The complementary convention envisaged by ETJRATOM members, to raise thelimit of liability of 15 million dollars established by the Paris (O.E.E.C.) Conventionto 125 million dollars by state intervention, is a clear example that excess damage problems with regard to land-based risks ean better behandled on a narrow regionalbasis.

²¹ With regard to many typical nuclear injuries resulting in leukemia and other cancers, which are indistinguishable from similar diseases occurring without exposureto ionizing radiation, it will often not be possible to prove causation by a nuclearincident in individual cases, although statistical proof may be forthcoming where increasesof the incidence rate of particular diseases can be observed in any populationgroup exposed to a nuclear incident. See, in this connection, Atoms and the Law, op. cit.note 4 above, pp. 421-532.

²² However, Art. V ( l ) does not preclude the licensing state from establishing a longer period of prescription (as has been done by means of a special mutual fund under Swiss law), if the resulting liability is covered by insurance or state guarantees, and provided that this does not affect the rights of any claimants who filed suit within the ten-year period.

²³ This is the case, for instance, for the N.S. Savannah.

²⁴ This wording may appear somewhat unclear; however, in view of the rejection of an earlier proposal which would merely have excluded from the Convention any damage to the nuclear ship, thus reserving liability under general rules of tort law, it may be assumed that the Conference intended to bar any tort liability for damage to the nuclear ship.

²⁵ In view of the financial strength of the nuclear equipment industry, the temptation would be great to seek to establish claims against major suppliers.

²⁶ Thus an insurer might be doubly committed as a direct insurer and as re-insurer or co-insurer of different defendants. The insurance industry as a whole considers that such multiple coverage would not be desirable.

²⁷ Cf. Trail Smelter Arbitration (1941), 3 Int. Arb. Awards (U.N. pub., Sales No.49. V. 2 ) ; 35 A.J.I.L. 684 (1941); also International Problems of Financial Protection against Nuclear Bisk, note 4 above, p. 79, and note 130.

²⁸ Thus the French Delegation maintained that the Convention would be a bar against any additional state responsibility, while the TJ.A.R. Delegation took the opposite view.I t should be noted that in a special Annex to the Paris (O.E.E.C.) Convention it is expressly provided that “This Convention shall not be interpreted as depriving a Contracting Party . . . of any recourse which might be available to it under international law . ” This Annex appears to be of a declaratory rather than of a constitutive nature.

²⁹ See Art. XII.

³⁰ As, for instance, in the Convention relating to the Limitation of Liability of the Owners of Sea-going Ships (Brussels, 1957), 6 Benedict, Admiralty 399 (7th ed., 1958).

³¹ It proved impossible to find a single forum convenient both for victims injured on board the ship and for victims who sustained nuclear damage, e.g., on a colliding ship or on land.

³² This obligation is, of course, subject to such modalities of distribution as may be determined by courts of the licensing states, and to the exceptions enumerated in Art.XI(4). In cases where no limitation fund is established, the problem of enforcement of judgments in foreign courts should not arise, since compensation will be covered by insurance and possibly by government indemnification.

³³ A standing committee was established for that purpose by a resolution of the Conference.

³⁴ See note 18 above.

³⁵ See note 32 above.

³⁶ Reservations to this clause are expressly permitted and may, for instance, be expected from all Latin American countries.

³⁷ See Doc. No. 3 of the Brussels Conference, pp. 15-16.

³⁸ Proposals to this effect were put forward in particular by the Argentine, Scandinavian,and U.A.E. Delegations, while the U.S.S.R. favored a Belgian suggestion for a special international arbitration mechanism.

³⁹ E.g., in connection with questions of distribution of the limited liability fund.

⁴⁰ This had been the position of the XJ. S. expert on the I.A.E.A. Panel; at that time the United Kingdom expert was opposed to the inclusion of warships.

⁴¹ See Art. X(3), last sentence.

⁴² See Art. XXV. Such a restriction does not appear in the other Brussels Conventions,and one might wonder whether its political motivation has any place in a convention dealing primarily with private law. Art. XXV was proposed by the United States and was adopted by less than a two-thirds majority.

⁴³ I n the course of bilateral negotiations for the admission of the N.S. Savannah to friendly ports in Western Europe, the problem of liability—and in particular also of the jurisdiction of local courts-has proved to be one of the most difficult issues.

⁴⁴ Art. XXIV requires only three ratifications, of which one must be from a licensing state. The first licensing state to ratify might be the United Kingdom or Japan.

⁴⁵ See Art. XVII.

⁴⁶ See Art. XII. An American suggestion that contracting states be allowed to“extend the Convention” to non-contracting states by bilateral arrangements was, of course, not retained.

⁴⁷ To the extent that the agreement would modify existing rules of tort law and of jurisdictional competence, such ratification would be required in most European countries.