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shippers we, at least, would not oppose its passage as we have done so energetically ever since the subject first came up, and I think, if I may now refer to them, the import of these amendments will be recognized.

Mr. BRIGGS. Identify the page and line of the bill to which you shall refer.

Mr. DRAPER. The amendments are not in the printed bill.
Mr. ABERNETHY. Do you have them written out?

Mr. DRAPER. I can just talk from the bill. They are very short, if you will just let me explain them.

Mr. BRIGGS. You may proceed.

Mr. DRAPER. On page 7, lines 18 and 19-first, on page 7, it will be noted at the top of the page, that there is a proviso as follows: Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from

Then drop down the page to line 18 (j):

Strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general.

We object to that very strenuously, to that language, because it would permit, as it appears there, the captain of a steamship to lock out his own men while in port at the expense of the perishable cargo that might be on board, in order to fight his own labor battles with his own people. Mr. Haight agrees that is not the purpose of it, that the purpose of that language is to protect a carrier or a ship in case it goes into a port and it encounters a strike of tugboat captains or something of that sort or a lockout of tugboat captains. That being true, Mr. Haight agreed to add to the end of line 19, page 7, these words:

Provided, Such strikes, lockouts, stoppages, and/or restraints are not produced by the carrier for his own benefit.

Mr. PARKER. Would it not be shorter to say, "Not within the control of the carrier," at the end of the sentence, and carry out the same effect.

Mr. DRAPER. What is that language?

Mr. PARKER. Strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general, not within the control of the carrier.

Mr. DRAPER. That suggestion I think came up in our traffic committee and in our foreign committee, the use of the word "control," but objection has been made to it on the ground that it might lead to disputes as to the interpretation of the word "control," whereas this substantially states that if he does it for his own bencf.t he is out of order.

Mr. BRAND. I do not like the word "produce."

Mr. SLOAN. "Cause" would be better, or "encourage." It would not make it quite so sweeping.

Mr. DRAPER. Any way that the committee would like to strengthen it would be entirely satisfactory to us.

Mr. PARKER. The phrase "not within the control of the carrier," is a very common phrase in all sorts of contracts, and it is a very common phrase used by individuals and also by organizations.

Mr. ABERNETHY. In view of the fact of the interest shown by the Shipping Board, I think it is just as well for me, with your permis

sion, to put in the record at this time my general idea about this legislation. I think that if the Shipping Board and these other folks who want to get this legislation enacted would start a movement in this country to call the shippers in to show their interest in bringing about legislation incorporated here, it would be better than to take up something that has kept these folks, like this witness here, at bay for nine years, and as far as this humble member of the committee is concerned, I think we would get further along in all this legislation for shipping that we have had brought in here of a general nature, by having presented the views of people in this country rather than to follow what some other country did. According to this witness they were not even invited by anybody into any conferences, and surely the great body politic, the shippers of this country, are entitled to be heard instead of another country. I want to interpose that here and I do think it is a good place to put it.

Mr. DRAPER. Do not misunderstand me. Several times during the course of the years that we have been considering this, I myself and our various committees have conferred with the Department of Commerce, with the gentleman who was in charge of the insurance department of the Shipping Board, and with Mr. Nicolson, who used to be counsel of the legislative committee of the Shipping Board, and have explained our views.

Mr. ABERNETHY. Mr. Nicolson has been very persistent in trying to get this legislation through. I do not know why, but he has. Mr. DRAPER. I think he recognized the value of uniformity and very honestly tried to see the shippers' point of view.

Mr. ABERNETHY. I am not charging anybody with not being honest but I want to see a set-up of the matter as I have indicated. Mr. SLOAN. Would it not be a good idea to get this evidence in without comment and let the witness make a statement and crossexamine him afterwards if necessary?

Mr. DRAPER. If I could get these amendments in here consecutively, I think it might be helpful to other members of the committee who are not here.

Mr. ABERNETHY. Go ahead.

Mr. DRAPER. The second one is at page 8, line 20, that is, the deviation clause, and the proviso begins with line 19, "Provided, however, That if the deviation is for the purpose of," and we propose striking out the words "securing or delivering," and insert in place thereof the words, "loading or unloading," and as it goes on, "cargo " etc. or passengers,

Mr. ABERNETHY. Will you explain what that means?

Mr. DRAPER. For many, many years shippers in this country, and particularly shippers of perishable freight and semiperishable freight, have suffered losses that in their total would run into many hundreds of thousands, if not millions of dollars, because of deviation by steamships from their scheduled or announced routes. For example, I always use one case because it illustrates it very clearly. There was a ship leaving from New York on a certain date. The agent of that line goes into the office of one of our members who happens to be in Iowa and solicits freight for that ship, perishable freight, stating that the vessel is going direct to Marseille. Great quantities of goods in foreign trade, or as far as ours is concerned, are sold under a contract which provides either that the vessel must leave its port

by a certain date or that it must arrive at a foreign port at a certain date.

In this particular case the contract called for the arrival of that vessel at that port on the Mediterranean by a certain date. On the representation that the vessel was going direct our member loaded as much as he could on that vessel. After everything was on board it suddenly was discovered that the agents in New York of that vessel were running over New York trying to get apples to fill a few cubic feet of space that they had left open. We also found, knowing some people in the apple shipping business, that they were promising that those apples were going direct to a port on the eastern end of the Mediterranean, and they had a promise on that. We asked the steamship company about it and they said, "We are very sorry but the goods are on board and you can take them off." We could not take them off, the bill of lading was issued, going through the banks, had been going through the regular channel, so the ship sailed from New York harbor and went right by Marseille in the middle of the summer with our perishable goods under steel decks, and by the time the goods got there they were off condition. Also they had not left according to contract and the market had dropped and we were left with almost a shipload of off-condition goods standing on the dock at Marseille and could not collect a dime for any of it. That is one typical instance, and I could point to several hundred others along a similar line. I will explain that all this stuff, most of the exports of this country, orginate in the Middle West. When you ship that freight all you have is a freight contract. A bill of lading is issued later.

You have a sale made. You get a freight contract from the railroad company and the stuff moves on the freight contract generally, which provides in that that the freight contract shall be given up at the port of export for a bill of lading, so that the shipper actually never sees the bill of lading until the goods are loaded on board, and he is way out in the Middle West some place, or way down South, nobody knows where. We want a condition whereby when the steamship company or its agent comes into our office and says, we have a vessel going to some place that it is really going there, or that it is going to a certain number of ports in a certain way, that they will actually go there.

Mr. ABERNETHY. How will this protect you?

Mr. DRAPER. You will note that language reads:

Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of this act or of the contract of carriage, and the carrier shall be liable for any loss or damage resulting therefrom: Provided, however, That if the deviation is for the purpose of securing or delivering cargo or passengers it shall, prima facie, be regarded as reasonable.

In other words, every time a carrier deviates from his announced schedule if that language is applied, we have a prima facie case against him and he has to prove that it was reasonable for him to deviate. He might get into a storm or run out of fuel oil and put into a place to get fuel oil and continue his voyage. Any court would consider that a reasonable deviation, but he would have to prove it. Mr. ABERNETHY. Are you an attorney?

Mr. DRAPER. No.

Mr. SLOAN. There is quite a difference between securing and loading.

Mr. ABERNETHY. Does not that language that you put in there benefit more the vessel owner that it does you?

Mr. DRAPER. No. I will tell you why. I will tell you why. A vessel might be at sea and the owners might find a cargo for it some place. The owners could secure that cargo but the vessel would not be actually securing it when it went in to load it, and it is for that reason that we would like to see substituted the words loading or unloading, and then it does not make any difference who secures it.

Mr. BRIGGS. Pass to your next amendment.

Mr. DRAPER. I will add there that the question of deviation is a new thing. We are not protected against deviation at all now. Nevertheless these conditions have come up where we wish to be protected.

Mr. ABERNETHY. It strikes me that instead of strengthening this act for yourself, you are weakening it by putting in the word load or unloading.

Mr. DRAPER. No, sir, any time it goes in to load or unload passengers or a box of freight.

Mr. ABERNETHY. Is it not broader if the deviation is for the purpose of securing or delivering? Now, you limit the prima facie case against him to the question of loading or unloading, do you not?

Mr. DRAPER. Yes. No vessel would go off its course 200 miles on the chance that it might get boxes of freight that had not already been secured for it. That question of deviation, I was about to add, is an extremely important one.

Mr. BRIGGS. We appreciate that.

Mr. DRAPER. We are not now covered by it and I think we ought to be protected.

Mr. SLOAN. What is your next amendment?

Mr. DRAPER. The next one is with respect to notice of loss or damage.

Mr. SLOAN. What page?

Mr. DRAPER. It begins on page 4, line 21. The language there, as far as we are concerned, is entirely satisfactory, provided

Mr. ABERNETHY (interposing). That is, unless notice be given in writing.

Mr. DRAPER. Notice in writing.

Mr. SLOAN. Proceed.

Mr. DRAPER. On page 4, line 21:

Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

Add to that:

Said notice of loss or damage may be indorsed upon the receipt for the goods given by the person taking delivery thereof. If loss or damage is not apparent, notice must be given within three days of the delivery of the goods.

Mr. SLOAN. If you were to ship or unload at the port or had to go inland and take a week or 10 days for the goods to arrive, and they finally got them for the first time, it would not have to be done.

Mr. DRAPER. Yes; it would, if you will drop down to line 10, I will explain that to you. You understand that this is only prima facie case. Now in line 10, page 5, add "Provided, That

Mr. ABERNETHY. Who gives that notice.

Mr. DRAPER. Frequently a teamster.

Mr. ABERNETHY. You do not say who gives the notice.

Mr. DRAPER. It does not make any difference who gives it. That language would bring the practice into line with the practice that exists on railroads, and if that language was not in there and the other language stayed by itself

Mr. ABERNETHY (interposing). Do you think that notice by a teamster should be binding on anybody?

Mr. DRAPER. No; it is only prima facie evidence.

Mr. ABERNETHY. You are asking us seriously to write something into the law and you say that is notice by a teamster.

Mr. DRAPER. It is simply notice that the goods are damaged. Mr. ABERNETHY. Whose teamster?

Mr. DRAPER. It may be a teamster in the employ of the customhouse broker, a hauling concern, or a forwarding agent.

Mr. ABERNETHY. You think that kind of notice ought to be binding on anybody.

Mr. DRAPER. All that it is is a receipt on which it may say, received seven boxes which are damaged-wet. That is all that is written on there, and that is simply notice to the steamship company. Now, at the top of page 5, line 10, add this: "Providing that if a notice of loss or damage either apparent or concealed, is not given as provided for in this section, that fact shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered.

Mr. ABERNETHY. I do not want to appear captious.
Mr. SLOAN. You do not have to apologize.

Mr. ABERNETHY. I understand the point, but if these amendments were in typewritten form for us it would facilitate it.

Mr. DRAPER. Mr. Haight did not get into Washington until Saturday afternoon, and the long-distance telephone to New York and Chicago has been busy ever since.

Mr. ABERNETHY. That is what I object to, and I am almost constrained to ask the committee to call this hearing off. Mr. Haight had to go to Europe, Mr. Campbell had to go to New York, and it does strike me in an important matter like this, with shippers, owners, and the Shipping Board and everybody else interested, we ought to go at this in a systematic way, and have the shippers, the vessel owners, the insurance underwriters, the Shipping Board, the Department of Commerce, every interest in this country present here. I am not talking about the foreigner. I am not so much interested in them. We might then get around the table here and work out something beneficial or helpful and not take up this matter piecemeal. I never intend to. I will serve notice on everybody I will not for one moment consider this bill in the shape it is in now. Judge Davis thinks the same. I am in sympathy with you and I want to help you out. In my great State we have tobacco and cotton interests. They are entitled to be heard in this matter. You are entitled to be heard. The shipping people are entitled to be heard, but Mr.

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