Imágenes de páginas
PDF
EPUB

Mr. BEECHER. If your construction is correct, it must be changed; but it is curious (and I can see the force of your point) that these learned delegates of the 24 nations engaged at Brussels never conceived of that point. That is something which I think could' readily be changed by simply inserting this clause with the preceding clause. Mr. PERLMAN. Yes; that would help it.

Mr. CAMPBELL. Then you break away from the convention.

Mr. BEECHER. Mr. Campbell, it is not my understanding that the obligation of the several nations is to adopt the rules with absolute verbal literacy, but that they are under obligations to change none of the principles of the rules. If it is a mere question of putting one clause where it obviously belongs, so as to make it entirely clear under the laws and legal interpretations of a particular country that it means what the convention intended it to mean, I do not understand that there is any prohibition on any of the international committee that would interfere with it.

Mr. CAMPBELL. Then you break the uniformity, because you would not have the same interpretation by the courts of two clauses that are differently worded.

Mr. BEECHER. You can only do it to the best of your ability and of course you would not have uniformity with the clauses worded in precisely the same way, because the courts of the different nations may interpret them differently and undoubtedly they will to a certain extent. So that there will be and always has been a certain amount of nonuniformity and I think we are only liable to do what we can to carry out the spirit of the convention.

Mr. PERLMAN. And vou say the spirit was, where damage was not apparent, that, instead of having to give the notice immediately upon removal, three days shall be allowed?

Mr. BEECHER. Quite right. It was a clause insisted on and asked for by the French in the interests of their shippers.

Mr. ROSENBLOOM. It is clearly not in the interest of the shippers.

Mr. BEECHER. Of course, as you interpret it, it will be tremendously in the interest of the shipowners; but it was not so assumed and it never occurred to anybody that it could have the other interpretation. That shows one of the benefits of hearings like this.

[ocr errors]

Mr. PERLMAN. Would not that change be, after the word "carriage" in line 16, simply to say, "Notice shall be given within three days where the loss or damage is not apparent," and then to use the words "such removal or failure to give notice shall be prima facie evidence," and so on?

Mr. BEECHER. We know what we want and it is a matter, I think, for the billdrafting service, which does these things so well, to put that into shape. But I want to emphasize the fact that no longer can any shipper be barred of his recovery by his failure to make claim. It is true that if he does not bring suit within a year (and there is a change which was made at Brussels, and one of the few changes which are favorable to the shipowner), he can not recover. But even those who were most strongly advocating the shippers' interests were not inclined to press too strongly their original insistence upon a limitation of two years. It is recognized that in matters of the sea the difficulties of preserving evidence are infinitely greater and different from what they are on land, and it was almost unanimously felt that all honest claims could be presented and taken care of and, if not disposed of satisfactorily, that suit could be brought within a period of one year, and the two-year limitation would inure chiefly to the benefit of those who wanted to take advantage of the carrier, rather than of those who were really inured.

,,

Mr. PERLMAN. Will you explain lines 20, 21, 22, and 23, beginning at the end of line 20, "The notice in writing will not be admissible if the state of the goods has at the time of their receipt been agreed to be otherwise than as stated in the notice.' Mr. BEECHER. I have a little difficulty in regard to that. I am sorry Judge Hough, who was chairman of the sous commission or, in other words, the subcommittee that had charge of these rules at the Brussels conference, which then reported to the plenary session, did not appear, because he could undoubtedly better explain that than I can.

Mr. ROSENBLOOM. Is he connected with the Shipping Board?

Mr. BEECHER. He is a United States circuit judge in New York.

Mr. ROSENBLOon. He was appointed as a member of the commission?

Mr. BEECHER. He was appointed, as I say, by the President to represent the United States. The Shipping Board had no representation at Brussels; that was a diplomatic conference.

Mr. PERLMAN. What do you think that means, Mr. Beecher?

Mr. BEECHER. My understanding of this is that if the shipper, when he receives his goods, agrees by his receipt, or otherwise, that the goods are undamaged, he will not be permitted thereafter to serve a notice asserting that they are damaged and secure the benefit of that notice.

Mr. PERLMAN. If he served a notice, after he signed such a receipt knowingly, would not that be just the same in court as to bar him from recovery?

Mr. BEECHER. I don't think so. It is something which some of our foreign friends wanted, I imagine, because they may have some difficulties which we do not have. Mr. PERLMAN. Now, let us see our difficulties. Suppose some one calls for merchandise and does not examine the merchandise or has not the opportunity to examine it, and he is given a printed receipt, prepared by the steamship company, in which he acknowledges that the merchandise or the goods in question are in good shape, etc. What happens then? Is not that a bar to entering suit?

Mr. BEECHER. No; it is not. You must bear in mind that the only effect of the receipt, anyhow, is to make out a prima facie case of delivery in good order by the steamship company.

Mr. PERLMAN. As I read that, it is not as to whether it will not be prima facie evidence, but it puts an end to the case.

Mr. BEECHER. Oh, no. It simply says "The notice in writing will not be admissible if the state of the goods has at the time of their receipt been agreed to be otherwise than as stated in the notice." Now, for what purpose is the notice offered in evidence? It is in order to prevent the carrier from having a prima facie case of good delivery.

Mr. PERLMAN. Isn't it a part of your case that you must show notice?
Mr. BEECHER. Not at all.

Mr. PERLMAN. In other words, you can, without serving notice at all, if you sue within one year's time, recover for goods delivered in a damaged condition?

Mr. BEECHER. Absolutely. The effect is so trifling from the viewpoint of protecting the steamship owner, I am not surprised the gentlemen have difficulty in believing the notice of claim clause has no greater effect than I have stated. Probably it has no greater effect than the more common signing of a receipt for delivery in good order, which everyone knows is subject to rebuttal when you come to put in your proof.

Mr. PERLMAN. I know; but it is rather difficult to rebut something of that sort. If a man signs a paper prepared by the steamship company, a carrier, without examining the merchandise, that hurts the shipper considerably. I do not think it is necessary, unless you think the convention insists upon that.

Mr. BEECHER. To have any notice of claim clause?

Mr. PERLMAN. No; to have the provision that the notice in writing shall not be admissible when a receipt is signed by the shipper that the merchandise is delivered in good condition.

Mr. BEECHER. I do not consider that of great importance, but I can not see that it does the slightest injustice to the shipper.

Mr. PERLMAN. It gives the carrier a certain advantage against the shipper.

Mr. BEECHER. But when you bear in mind the very large advantage the carrier has heretofore had against the shipper, in respect to notice of claim, advantages which Congress has said, over and over and over again, were only right and proper, have been taken away in toto, I do not see that it would give the carrier what you describe as a considerable advantage; but, in reality, as compared to the advantages the carriers has had in the past, it is only of minor importance and it does not seem to me there could be very serious criticism of the provision. And I do feel that we have got to consider whether we are prepared, for the sake of verbal perfection or perhaps perfection in details, to throw over the avdantages of the rules of a uniform law to be adopted by 24 maritime nations of the earth.

Mr. PERLMAN. That is really shifting the burden of proof from the defendant to the plaintiff in every instance here. The moment he signs a receipt, through his agent, that it is delivered in good condition, without having the merchandise to examine, and it has not been opened and has not been examined, the burden is on the plaintiff to rebut his own receipt all the time.

Mr. BEECHER. I think that is true under the existing law, and I do not think anybody would suggest that a man who signs a receipt ought not to have it create a prima facie case in favor of the other fellow.

Mr. PERLMAN. Not a prima facie case.

Mr. BEECHER. It is some evidence against his claim; that is all a prima facie case is. I may say, on that point, I do not profess to be a great authority on the law of evidence; but it is interesting to note that our foreign friends were more troubled by our expression "prima facie evidence' than would be imagined; they could not grasp it; they did not know what it meant, and we had more difficulty with that than over any other proposal. But as I understand, all it means is that, in the absence of any evidence to the contrary, the carrier wins in such a case.

Mr. PERLMAN. Not in the absence of any evidence; in the absence of any credible evidence.

Mr. BEECHER. Of course, I do not mean the absence of any evidence.

Mr. PERLMAN. In other words, in the absence of the evidence that the judge wants to believe.

Mr. BEECHER. No; I think it is almost as strong as I have put it. It really does not amount to anything, I really do not think.

Mr. PAUL. Under existing law, as it applies to rail transportation, the signing of a receipt by a consignee that the goods were received in good order, when he has not had a chance to examine them, is always a perpetual source of trouble when he discovers the goods are not in good condition.

Mr. BEECHER. Right.

Mr. PERLMAN. But not quite as much trouble as when he is barred by the law; that is, this goes further.

Mr. PAUL. Surely it does. It is bad enough under modern rail transportation. Mr. PERLMAN. Absolutely.

Mr. BLAND. Mr. Beecher, if a man has receipted for a piece of green cheese, he certainly can not assert thereafter that he did not get it.

Mr. BEECHER. I think not; he can not prima facie.

Mr. ROSENBLOOM. The receipt bars him.

Mr. BEECHER. No, Congressman; there is no bar; let me express that opinion that there is no bar.

Mr. ROSENBLOOM. It bars the introduction of the three-days notice.

Mr. BEECHER. Right, but what does that do; what is the effect of that? Absolutely nothing, except that he has actually to prove the facts.

Mr. ROSENBLOOM. He has to do that anyhow, doesn't he?

Mr. BEECHER. Quite right. The real effect of this, so far as the shipper is concerned, is nothing. I think the great objection to this clause is that it does not afford the shipowner reasonable protection. From the viewpoint of the shipper I think it is the most remarkable advance that the law of carriers has ever made for his benefit. Mr. ROSENBLOOM. Of the shipper?

Mr. BEECHER. The viewpoint of the shipper.

Mr. PERLMAN. How is it given to him, without giving this little advantage of prima facie evidence.

Mr. BEECHER. That means it has wiped out entirely any notice of claim. I say that is not desirable from the viewpoint of the shipper, because the shipper, the honest shipper, is interested in the notice of claim clause just as much as the carrier. The notice of claim clause protects the carrier against dishonest claims primarily. The honest shipper is vitally interested that the carrier be protected against dishonest claims, because, like the unpaid bills to your tailor, you know you are going to have to share in paying that dishonest claim.

Mr. ROSENBLOOM. It is extended over the 62-year period. [Laughter.]

Mr. PERLMAN. Under your point of view, under the present law, where the shipper signs a receipt, through an agent, or even signs it himself, without examining the merchandise, not having an opportunity, when he makes his claim for damage, the court naturally will take into consideration this receipt he signed. Suppose you were sitting as the court, would you consider that you needed more evidence to disprove that receipt, under this provision, than without it?

so?

Mr. BEECHER. I do not think it alters existing law under the circumstances.
Mr. EDMONDS. It is true to-day and the courts have had to construe that; is not that

Mr. BEECHER. Yes.

Mr. EDMONDS. It is true to-day, in the present bills of lading, and the court has had to construe that.. This is simply a confirmation of the Harter Act, but possibly not quite as strong.

Mr. PERLMAN. They have not construed it as practically to bar his claim.

Mr. BEECHER. Of course not; neither does this.

Mr. PERLMAN. Not entirely; but that is the effect of it.

Mr. BEECHER. It does not bar his claim any more than the signing of a receipt to-day bars his claim. It is the same thing; it operates as a prima facie case for the carrier. But you say why have it in if it does not amount to anything? You will find throughout this bill a good deal to which that same criticism could be addressed. It is an attempt, to a certain extent, to codify existing American law, so that not only shall Americans have the benefit of a final, conclusive, statement of what the American law is, but also, obviously, if all the nations of the earth are going to have the same law it is necessary and desirable to tell them in the rules what that law is.

Mr. PERLMAN. This does not explain what the American law is to-day; this changes the American law.

Mr. BEECHER. Of course; I was only referring to your objection of why put it in. Mr. PERLMAN. But it changes the present American law.

35458-23-2

Mr. BEECHER. It changes it so as to give the shipper a very great advantage over the carrier as the law now stands.

Mr. PERLMAN. That one paragraph, or that one sentence, gives the carrier some advantage; it may be slight, but it gives him some advantage over the shipper, does it not?

Mr. BEECHER. Not over the existing law, but over what this radical change from the existing law would be if it were not for the paragraph to which you refer.

Mr. PERLMAN. The present law says the court shall take into consideration, by way of evidence, any receipt by the shipper as to the condition of the merchandise at the time of delivery. That is what the present law means, is it not?

Mr. BEECHER. Right. Of course, you have to read this in connection with the whole claims clause, and under existing law, under the claims clause now in use, the shipper is barred entirely. It is not a question of more prima facie, it is not a question of offering proof or having to prove, but his case is utterly wiped out. That is what this alters as a whole.

Then I call attention to the provision at the end of section 3, paragraph H, lines 1 and 2. page 6 of the bill:

"A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability.'

That wipes out, in connection with the balance of the paragraph, the elaborate system which has been devised to accomplish just this result and which in general has been successful, but which has led to a very great deal of trouble on the part of cargo underwriters and shippers. Is not that right?

Mr. BLAND. Devised by whom, Mr. Beecher; by the insurance companies?

Mr. BEECHER. It has been like the fight between armor plate and projectiles. First the carrier won; he got the benefit of the insurance. Then the insurance com pany devised a scheme for defeating him. Then the carrier came back with a scheme to defeat the insurance company. And so it has gone. And, when this matter was under consideration, my attention was called to a still further device of one carrier, the author of which pointed to it with pride as something which he thought at least would enable the carrier to beat the underwriter, and I think he was rather hurt when I said I was going to do everything I could to defeat his new invention. And this has done it, whether it is good or not.

Mr. BLAND. What do you mean by that, "A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability"? Does that mean from all liability, or from what liability?

Mr. BEECHER. That must be read in conjunction with the balance of the preceding paragraph, which says that any such clause shall be null and void.

Mr. PERLMAN. That is like the old Harter Act, the first part of it?

Mr. BEECHER. Quite right, except this adds on. The Harter Act has not such a clause.

Mr. BLAND. In whose interest is that provision; is it in the interest of the insurance company, the carrier, or the shipper?

Mr. BEECHER. The benefit of insurance clause was for the benefit of the carrier. It is now wiped out.

Mr. CAMPBELL. This clause is in the interest of the insurance companies?

Mr. BEECHER. Of course. This wipes out the benefit of insurance clause devised by the carrier for his own benefit, and the result of this is the shipper and the underwriter are no longer troubled by such clauses in bills of lading of the carriers. Mr. BLAND. It puts the liability on the insurance companies?

Mr. BEECHER. No: it leaves the liability upon the carrier and prevents the carrier from escaping that liability by asserting that the shipper has taken out insurance against this very risk and that he, the carrier, ought not to pay because he has provided that he shall have the benefit of that shipper's insurance. It is something which the shippers and the underwriters were both very anxious to have done and we have done it. We had some difficulty in getting our foreign friends to agree to it not so much because they were in favor of such clauses, but they did not know what they were and they did not like to put something in which they did not know about. It was not an evil which existed abroad.

Mr. EDMONDS. I suppose you explained, Mr. Beecher, that the rules as promulgated in Brussels will be prepared as a treaty and will be sent over to the Senate for confirmation, possibly?

Mr. BEECHER. I merely said I supposed that would be done in due course. The State Department has taken no action as yet and, as I explained, I understand that did not have all the diplomatic documents yet from Brussels in regard to it. Diplo macy is rather a slow tool.

Next, I call attention on page 6, line 12

Mr. PERLMAN. That about section 4-A: Is that something new?

Mr. BEECHER. No.

Mr. PERLMAN. Is that in the old act?

Mr. BEECHER. Section 4-A is merely a codification of the Harter Act and I call attention to that clause in lines 12 to 15, which was inserted at the request of the shippers and cargo underwriters to make it clear that the burden of proving the exercise of due diligence whenever loss or damages has resulted from unseaworthiness, is to be on the carrier. Without discussing whether that changes the law, it certainly is a very valuable provision from the point of view of the shipper.

Now, when we come to the next paragraph, paragraph (B), section 4, line 16, we come to probably the only provision of the rules which can be said to afford any real advantage to the shipowner, who must, in reality, look for the principal benefit under these rules in having a happy and contented customer rather than any direct benefit which he derives; because there can be no doubt, I think, that the burdens of the carrier are very considerably increased by these rules.

This section constitutes a modification of the Harter Act, in that it does not make it a condition precedent to the carrier receiving the benefit of these exceptions that he shall have exercised due diligence to make the ship in all respects seaworthy-properly manned, equipped, and so forth. It is true that the shipowner is under that obligation just as fully as before. It is an affirmative duty resting upon him, and the shipper may always recover where the damage or loss is the result of a failure on the part of the shipowner to comply with the affirmative obligation placed upon him of exercising due diligence with respect to the seaworthiness of the ship and, in addition, as I have just pointed out, the carrier himself is under the obligation, contrary to the ordinary principles of American law, of proving affirmatively that he has exercised due diligence.

The change, in reality, would affect but few cases. It presents such a situation as this: Suppose a ship sails from New York and, in going down the harbor, owing to an error of the master, she comes into collision with another ship. The compass has not even had the cover taken off: the navigation is all in full view and it is simply an error of navigation on the part of the master, but it is found that the compass is out of order. Now, as that unseaworthiness had not the slightest cause in connection with the disaster, as no one ever looked at the compass, even, it would seem that the shipowner should not be liable, should not be deprived of the Harter Act exemption from liability, as a result of the error of navigation, but probably under existing law that would be the case. Now, this changes that. It says, in effect, that the carrier, whenever there is unseaworthiness, whenever he has failed in the duty of due diligence, to have the ship seaworthy and whenever that has resulted in a damage or loss, he must pay for it; but it does not deprive him of the benefit of these exceptions where that failure on his part has had nothing whatever to do with the disaster.

Mr. PERLMAN. A good master would look at that compass, would he not?

Mr. BEECHER. It would depend on the situation.

Mr. PERLMAN. Aren't you putting a premium on negligence there?

Mr. BEECHER. Oh, no: under the circumstances I gave, where he was navigating right there leaving his dock in the North River, in full view of the conditions, he would not navigate with the compass. At least, I do not suppose he would, although I am not a nautical expert.

Mr. PERLMAN. But you do not limit it to that sort of a case.

You say

"Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:

"1. Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship."

Mr. BEECHER. I was really giving that as an illustration. That is merely repeating the present provision of the Harter Act.

Mr. PERLMAN. Is that the Harter Act?

Mr. BEECHER. Yes. We are not attempting to change the Harter Act. This is substantially the Harter Act; but when you come to subparagraph 17, page 7, we come to a very important provision inserted for the benefit of the shippers, making a very important change in the law. This covers cases of pilferage, sweat, decay and all of the various 57 varieties of exceptions which are familiar in bills of lading of the present day; and instead, as under existing law, of compelling the shipper to prove that that excepted cause, which has caused him damage, was a result of the ship owner's negligence, this throws upon the ship owner the burden of proving that he was free from negligence with respect to that excepted cause.

The importance of that from the point of view of the shipper, and primarily, perhaps, the shipper in the interior who has not the remotest idea of how to proceed to attempt to prove anything against a ship, is apparent.

« AnteriorContinuar »