world tied up, any shipper who wanted to could get a form of bill of lading that had in it a paragraph of the Magna Charta or a page from Alice in Wonderland, if only he would write a paying freight rate.

Now these wide variations never settle any troubles at all, and the international chamber has been doing its utmost to bring all of the parties together about one table, with the purpose of securing a friendly and a fair agreement. We do not believe that legislation, per se and alone, will ever settle this trouble, because when you legislate votes are the only things that count, and if the steamship owners happen to be in preponderance, they get it voted their way; or if the shippers have the whip hand, they get it voted their way, and you never get it settled.

There have been protests heard from all over the world during the last 30 years, and they have been gradually becoming much more emphatic and the protests that have been directed (before this committee in Washington, before the House of Commons and elsewhere, and before the House of Deputies in Paris) have almost entirely been confined to three definite heads.

The shipper has said that it is not fair for the steamship owner to limit his value per package, in case of admitted liability and fault, to a figure which is wholly disproportionate to the damage he has sustained. Mr. Englar has known of at least one bill of lading where a French company limited its liability in case of fault to 10 francs per package. We have seen in America $100, and less. And, naturally, the man who ships a package worth $1,000 and which has an admitted worth of $100 and is then told they will give him a check for $10, resents it.

The second definite complaint has been of the claims clause and, under the present conditions, the claims clause means this, that if you do not present your claim within a given number of days, within a very short time, and if you do not bring suit within 30 days, or perhaps 60 days, you have no right of action at all; you are barred.

Mr. EDMONDS. That is, notwithstanding the goods may be lying in the customhouse for a month before you can get them examined, sometimes, like they did in Cuba a short time ago?

Mr. HAIGHT. There may be many cases in which the consignee honestly has an opportunity to examine the goods before the consignment gets to him; although in Norway, I presume, you can not start the time running until the delivery has been made to the consignee.

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The third complaint was that of the burden of proof of pilferage and other things. A man inserts in his bill of lading "I am not responsible for rust, sweat, vermin 40 other different causes, and he delivers his goods rusted, and the consignee seeks to recover damages, the shipowner refers to the bill of lading and says "I am not responsible for rust, unless you can prove we neglected your shipment." The shipper says "I can not prove anything; I was not aboard your boat." "Why, very well," shipowner, if you can not prove we neglected your shipment, I am not liable." Those three complaints-burden of proof, claims clause, and value per package-have been threshed out over and over again, and the contest became so heated that finally, in England, in that great steamship-owning country, they had to listen. They had always said the steamship owner has full freedom of contract; he can put into his bill of lading anything the other side will accept; but eventually, before the war was over, an imperial shipping committee was appointed by Great Britain to study the whole problem. Witnesses were heard from all walks of life-the banker, the cargo underwriter, the shipper, and the steamship owner-and in the end that committee filed a report recommending that all legislation throughout the British Empire be wiped out clean; that is, that they start afresh with the Harter Act, adopting our American law, which had been copied in England, Australia, and New Zealand, but every time it was copied, it was copied with some changes. So the British Empire said "We have reached a point where the shippers have got to be given greater protection, and the way to do it is to stop these clauses which exempt the carrier from all liability, and to make our law uniform.

It was then that the International Law Association and, a little later, the International Chamber of Commerce, took up the movement, and our opinion was this, that when Great Britain had reached that stage of being willing to adopt the American law, with these other three advantages which everybody is clamoring for, we then had so much of the world practically standing together that the right thing to do was to seek international uniformity and not merely British and American uniformity. So that an effort was made to codify, really, our American Harter Act.

You gentlemen, who are lawyers, will understand that the Harter Act is superimposed upon the common law. It means nothing to the French to say certain clauses are allowed and other clauses are prohibited; they do not know what that means with reference to the carriers, nor why it is necessary. What he may exempt himself from and what he may not they want stated in plain terms. So that the Harter Act

was codified into the form of The Hague rules, but the three points I have referred to were not covered. They said they would let the carrier limit his liability to £100 per package, or virtually the equivalent of $500. It has been conceded by every one that we must take one kind of money, which fluctuates as little as possible, instead of having the Italians say lira, the English say pounds, the American say dollars, the German say marks, and the Russian say rubles, and you do not know where you are. The money which is most commonly used and the best known in international trade is perhaps the best one to pick for all the nations of the world to agree upon. They ought to agree upon one denomination, and the most stable we can get.

£100 Mr. Beecher thinks is probably too much of a burden on the steamship owner, and I think so, too. I think that £100 is more than the value of the average package: but we can only say that the steamship owners and the cargo representatives fought it out, first at The Hague and again in London, and the European cargo people, and I suppose the American cargo people, feel if the steamship owners want to give us £100 per package as the limit we are going to agree with them, and the steamship owners have finally said, "Very well; we surrender; we concede." But it is not so much of a burden on the steamship owner, if only every steamship owner has exactly the same responsibility. They are then on an absolute equality from a competitive standpoint and. if it costs them more, they raise their freight rate. We saw bunker coal go from $3 a ton to $27 a ton during the war. It did not stop any steamship company from doing business; they all had to pay the same price, and they added it to the freight

rate.

On the claims clause the difficulty has been reached, I think, fairly, and I really would like to have you gentlemen look at that claims clause once more. I think there is a complete misapprehension on the part of some of you. Here is the law to-day, that if you do not present a notice of claim, a formal notice, that you are going to sue within a few days, and if you fail to bring suit within perhaps 30 days you are barred entirely, no matter what the facts are. Under The Hague rules of the present code, no matter what the facts are, you can bring your suit within 12 months after the delivery of the damaged goods; but if you have, as consignee, received the goods and given a clean receipt for the goods and taken them away, then when you sue for damage you must prove that the damage did not really occur after you took them away; that the damage did not occur while the goods were in your hands. Now, that is just as reasonable and fair as anything can be, as I see it. If I take a case of shoes, we will say, away from the carrier and give him a clean receipt and I store them in my warehouse for six months and then I open them and I find four pairs of shoes have been stolen, they might just as well have been stolen in the warehouse as on the steamship company's ship; but all I have to prove is that I put them in my warehouse and put them in a room, with the door locked, and which had never been opened until the time the theft was discovered.

Mr. BLAND. Suppose your shoes are sent out to Kansas City; they are taken off of the ship at New York and sent to Kansas City, and you have no means of examining them until they get to Kansas City?

Mr. HAIGHT. You have to prove between the time that case was delivered to you on the dock in New York and you receipted for it clean, and the time it was opened in Kansas City, that it was never tampered with; and you certainly should be required to do that, or the steamship company could be robbed right and left.

If I may stop a moment to interpolate, I will tell you how that works in shoes. One of our American shippers carrying shoes to South America had had claim after claim made on them for short delivery and they paid them. Finally, one day, this same shipper delivered a dozen cases of shoes on his dock. He telephoned his shipping clerk and said, "Come down here." The man said "What do you want to see me for?" He said, "I want to see you; come down." He said, "What do you want of me?" He said, "I will tell you what I want of you when you come down." So when the man went down he said, "You have just delivered 12 cases of shoes. I want you to stand on my dock while the coopers open every case; I want to see what is in them," and there was no a single case that did not have from two to three or four pairs of shoes missing.

Now, those things happen and it is only fair that the steamship owner, who has delivered his goods and received a clean receipt for them, should be entitled to say to the man who took the goods away and who comes back six months later and says, something has been stolen out of that box "-it is only fair to say that the consignee should be required to prove they were not stolen after the time he gave the receipt. Mr. BLAND. At the same time, doesn't it put a very heavy burden upon him where he has no opportunity to ascertain that unless he opens up every case in New York? Shouldn't we make that a distributive loss?

Mr. HAIGHT. The burden has to rest upon somebody, and I have always insisted that the burden should rest upon the man who can protect himself, and not upon the

man who absolutely can not. When the carrier has goods, it is his business to police his dock and to police his ship, and, if they are stolen then without his fault, somebody must bear the loss and he is the most logical man to do it; but, when he has parted with the goods and he has no possible means of guarding them any longer, the man whose duty it is to guard them should, I think, be held responsible.

Mr. BLAND. In other words, you fix the responsibility upon the last carrier, and the last carrier would go back upon the next carrier, and the next carrier would then go back upon the steamship company?

Mr. HAIGHT. It will fix the responsibility always upon the man who holds the goods of proving that the damage did not occur while they were in his possession, in that situation, if he is trying to hold somebody else.

Mr. CAMPBELL. Is not that a part of the insurable risk and ought to be carried by the insurers?

Mr. HAIGHT. I agree it is an insurable risk, and of course the carrier will insure himself; but I think the responsibility should fairly be placed upon the man who can reduce the risk of the loss. If you make the loss payable by the underwriters, then nobody cares who pays, except your underwriter, and the risk of carelessness is increased. The mate of a ship is not so much annoyed when he finds Del Monte canned goods served up to him on a long voyage if he thinks, "Well, my boss does not care; the underwriters will pay for the opened package"; but if he thinks his boss has to pay the loss and that he will then lose his job, then it presents a different situation. Mr. CAMPBELL. Under your theory, it would not work that way; the ship owner would have to insure, and he would have to charge that insurance back in the freight rates.

Mr. HAIGHT. Yes; but the rates of insurance will always be fixed on the moral hazzard, so that, just as some steamship companies get a much better rate on marine and other risks than others do, the company that holds its losses down will benefit by so doing.

Mr. CAMPBELL. No, not at all; because all of those risks are carried in P. & I. associations, which are mutual associations where everybody pays on the same basis. Mr. HAIGHT. Isn't it true, Mr. Campbell, that some people will not be admitted in the P. & I. association at all?

Mr. CAMPBELL. I assume so, but he has to be a pretty bad character.

Mr. HAIGHT. There are such.

Mr. CAMPBELL. I am not prepared to admit there are no American steamship owners who would not be admitted.

Mr. EDMONDS. As attorney for a P. & I. association, you know that is so, though. (Laughter.)

Mr. PAUL. On page 4, line 19, it now reads if the loss or damage is not apparent, the notice must be given.

Mr. HAIGHT. Yes.

Mr. PAUL. Wouldn't it clarify matters a little bit to insert if the loss or damage is not apparent at the time of delivery, or at the time of the removal of the goods from the custody of the carrier?

Mr. HAIGHT. I will admit I am exceedingly anxious to see these rules adopted as they were agreed to by the 24 separate commercial nations; because, if we begin to change and somebody else begins to change, and everybody takes a hand at changing them, then the work we have been doing, off and on, for 10 years and continuously for the last 20 months, is all thrown in the discard and we have to begin all over again. And, for one, I am fairly tired of my job and I want to see it finished. It is important, therefore, to hold to the phraseology if we can.

Now let us read the whole clause and not one sentence of it.

'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.

In other words, the man who gives a clean receipt or who accepts his goods without the slightest complaint, must admit that he has at least received them clean, according to his own admission; but, if it is a damage which can only be ascertained by opening your box, he is not required to do that the moment the goods are delivered to him but he is given an additional three days within which to examine his goods and his; receipt for the goods, where the damage is concealed, does not even act as prima facie evidence of a clean receipt.

Mr. PERLMAN. It will take three days.

Mr. HAIGHT. When the three days have expired, then he is in the position only of having given a clean receipt for the goods, which binds him to what-merely, if sub

sequently he wants to file a suit or to present a claim of any kind, that he is only required to show that was a mistake: "I did receipt clean; I did accept my goods without protest and they did look like they were undamaged goods, but it is wrong. I can prove that those goods have not been damaged since I received them and that they were damaged when I did receive them."

Mr. PERLMAN. Would it not be better, then, to add that to the first sentence, rather than to make it a separate sentence?

Mr. HAIGHT. I had not supposed anybody could read the whole section and give it any other meaning. If that is true I would like to leave it unchanged; if it is not true, we can change it; but it seems to me it is plain that unless notice is given, it is to be assumed that the goods are delivered clean; but if the loss or damage is not apparent, that notice need not be given until three days after.

Mr. PAUL. Three days from when?

Mr. PERLMAN. Would it not be better to put it in as part of the first sentence? Mr. HAIGHT. It is not better if the meaning is now clear.

Mr. PERLMAN. It is not clear; it is not clear to me; it would be clearer to me to put it in the first part of it.

Mr. HAIGHT. Certainly it is all a part of subsection (f) and under no circumstances can anybody be barred from suing within 12 months, and it is only this infinitesimal question of whether it is or is not prima facie evidence, and to-day I think you will agree with me, any man who has given you a receipt for anything you have delivered to him is bound by his receipt, and that is really nothing but a declaration of right. Mr. PERLMAN. He is not bound by it?

Mr. HAIGHT. He is not bound by it, but he has to show it to be wrong.

Mr. PERLMAN. Correct.

Mr. HAIGHT. That is absolutely all this says.

Mr. PERLMAN. I think it would be a great deal better if you did not make two separate sentences, but simply have that clause a part of the first sentence.

Mr. HAIGHT. Perhaps we can change the punctuation, and I am satisfied, as Mr. Beecher is, that there will be no difficulty in making perfectly unimportant changes or changes which make more clear the purpose. A change of meaning is one thing, but to make the meaning more clear is a very different thing.

Mr. PERLMAN. Just explain that next sentence to me-- The notice in writing will not be admissible," etc.

Mr. HAIGHT. "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."

Suppose goods are seen to be damaged on the dock and the steamship owner says, "I want a survey of those goods right now; they are damaged," and it is agreed before they are taken away that they are damaged to the extent of $100. The man can not then carry them away and, six months later, after the goods have all been turned into granulated sugar, we will say, or tanned hides, or something, then make a claim that his damage was a thousand dollars.

Mr. PERLMAN. Suppose that a case of shoes is received at the dock and offered for delivery to the consignee, and the bill of lading calls for 24 pairs of shoes

Mr. HAIGHT. Of course, it never would; it would call for one case of shoes, said to contain 24 pairs.

Mr. PERLMAN. Suppose it says that one case of shoes said to contain 24 pairs. It is nailed up; it is not opened, and the clerk for the consignee, or the agent for the consignee, signs a receipt that he has received a case of shoes containing 24 pairs of shoes in good condition. He signs that receipt, say. When that case of shoes is opened the next day at the place of business of the consignee, say there are only 23 pairs of shoes, or that one or two pairs of shoes are damaged. The receipt having been signed by this authorized agent, what is his position?

Mr. HAIGHT. Absolutely nothing but to show that the shoes were not stolen between the time he received the case and the time he opened it.

Mr. PERLMAN. The burden is on him-on the consignee?

Mr. HAIGHT. Certainly, even to-day. That has never been any different. We are trying to codify the law; not to make new law.

Mr. PERLMAN. You are not codifying the law when you say that the notice in writing shall not be admissible if a receipt is given.

Mr. HAIGHT. You are not doing much more. Suppose you and I agree, having opened the box, that there were 23 pairs of shoes there?

Mr. PERLMAN. That is quite different.

Mr. HAIGHT. Would you subsequently be allowed to say there were only 22 pair? Mr. PERLMAN. I would be allowed to say it.

Mr. HAIGHT. But you would not get away with it.

Mr. PERLMAN. No.

Mr. HAIGHT. That is what this says.

Mr. PERLMAN. Suppose it is a closed case and my agent says, in a signed receipt, "I have received 24 pairs of shoes in good condition.' What is my position then, in view of this sentence?

Mr. HAIGHT. Just what it would be under the preceding sentence. You have received the goods without giving notice of claim and you subsequently want to give notice of claim, and you have the right to do that. It is only where the thing has been investigated and an agreement reached you say that agreement ought to stand.

Mr. PERLMAN. But you are shifting the burden a good deal to the consignee, just because a receipt is signed, although the merdhandise has not been examined. Mr. HAIGHT. That is where the burden rests to-day, sir; we are not shifting anything.

Mr. PERLMAN. I know; but the carrier would have a printed receipt and he would present it to the agent of the consignee and, in order to get the merchandise (say the truckman is the agent of the consignee), he signs the receipt and sometimes he does not read it, and would not understand it if he did read it.

Mr. HAIGHT. Is it your idea that a receipt reading "in apparent good order; 4 cases marked so and so," would bar the man under this sentence in lines 21 to 23?

Mr. PERLMAN. It would not bar him, but he would have a greater burden of proof than the present law placed upon him.

Mr. HAIGHT. No; there would not be the slightest difference that I know of.

Mr. PERLMAN. If you give the carrier an opportunity of placing in his receipt a statement of a fact that does not exist and then you shift the burden to the consignee, who must disprove that fact? As I say, you get a closed case, not opened by the consignee at the time.

Mr. HAIGHT. Yes.

Mr. PERLMAN. Therefore, you can not say absolutely what the contents of the case

are.

Mr. HAIGHT. Neither party can say.

Mr. PERLMAN. Neither party can say.

Mr. HAIGHT. But the box is apparently in good order and condition.

Mr. PERLMAN. Yes.

Mr. HAIGHT. Then the party is entitled to a receipt that the box is apparently in good order and condition.

Mr. PERLMAN. Not necessarily so.

Mr. HAIGHT. It is in apparent good order and condition.

Mr. PERLMAN. That case may have been opened up on the voyage.

Mr. HAIGHT. I say it is in apparent good order and condition, and if you are an ocean carrier and you delivered a box that looked to be perfectly all right, you would want a receipt "in apparent good order and condition." If the man comes back

afterwards and says the box has been opened, it has been robbed

Mr. PERLMAN. But you know of any number of cases where there has been a shifting of the contents of boxes on board the vessel.

Mr. HAIGHT. It is hard to break it open and not to have it show..

Mr. PERLMAN. We have had a recent conviction in New York where it was done, and done regularly.

Mr. HAIGHT. Yes; but what I am trying to make clear to you is this, that this clause to-day imposes upon the carrier a responsibility he has never dreamed of accepting before, that, within 12 months after any goods have been delivered, anybody can make a claim.

Mr. PERLMAN. But you are also placing on the shipper a greater burden than anybody ever dreamed of.

Mr. HAIGHT. Let me make it clear that I am not placing on the shipper any greater burden. I am simply stating the law as it is to-day, except that the shipper has 12 months within which to make his claim and to bring his suit, instead of 30 days, as it is now.

Mr. PERLMAN. I understand that; but you do not, under the present law, say to the shipper, "If you sign a receipt, it is the same as if you can not give notice and, therefore, the burden is upon you to prove.'

Mr. HAIGHT. Mr. Englar here is the champion of the shippers. Is it not true, Mr. Englar, that practically every word of this section is the law to-day, so far as the burden resting upon the man holding possession of the goods to show the goods were not tampered with after he took delivery?

Mr. ENGLAR. I think the burden always rests upon the consignee to prove the goods were damaged before he received them, whether he signs a receipt or not.

Mr. PERLMAN. I understand that.