We do not sue in England; we wait until they come back to the American ports and libel them under the American law. So that it really resolves itself down to a phantom rather than a reality.

The next thing I want to call attention is to this notice clause.

The CHAIRMAN. On what page is that?

Mr. LAWS. Page 4, paragraph (f). That seems to be the one that has been very much discussed. I have no serious complaint with that clause, except this:

First, beginning at line 20, the words "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," as I read that clause, the effect of it would be this: If the goods are delivered to a teamster, they will have a printed blank, "Received in good order and condition from such and such steamship company," and some ignorant teamster will go down and they will say, "Sign this," and he signs it or puts his mark on it, and that is an agreement those goods are received in a certain condition. Now, we will assume that is done and the goods get to the man's place, and within three days he gives a notice, after he opens them, that the goods are damaged, or certain of the goods are missing; that notice is worthless. Why? Because there is an agreement in writing that they are otherwise than as stated in the notice. There is an agreement by the representative of the shipper or of the consignee (the teamster is their agent) that they are in apparent good order and condition, and when they give the notice the carriers say, "We are not going to pay any attention to that; you have already agreed they are otherwise; that they are in good condition." And absolutely it will effectively in practically all cases, unless the owner himself or a very intelligent man goes down and gets the goods, wipe out even that three days' notice. So that I am opposed to that clause. I can see no possible use it has except to wipe out that three days' notice and make it entirely ineffective for all practical purposes wherever a teamster gives a receipt that the goods are received in apparent good order and condition.

Mr. HAIGHT. Suppose they are known to be damaged and seen to be damaged, should not he receipt for them “damaged"?

Mr. Laws. He should; yes. But suppose they are not seen to be damaged and he still gives a receipt, "Received in good order and condition," and then when they take them out and look at them they see they are not in good order and condition; they come back and say, "Your teamster receipted for them in good order and condition; he must have done something in the meantime to them.'

Mr. HAIGHT. Concealed damage is covered.

Mr. Laws. This does not say concealed damage; this is a broad statement-the notice. What notice? You have talked about two notices, one where it is concealed damage and one where it is not. This 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 that certainly applies to concealed damage.

Mr. CAMPBELL. Why should not the consignee be bound? If he does not want a receipt given, he instructs his agent or servant not to give a receipt.

Mr. Laws. The consignee, you know as well as I do in the practical transaction of business, calls up a teamster and says, "Jim, I have four cases which came in on the S. S. Safran; go to the pier and get them." Jim says, "All right," and he comes in and says, "Bill, go down and get the stuff of Mr. So-and-so," and Bill goes down and he can not either read or write. This war demonstrated the fact that we have an enormous number of people who are absolutely illiterate; they can neither read nor write; they probably can not even write their name. Bill goes down there and they say "All right Bill; here is your stuff. Sign this," and Bill just puts a scroll on it, and then he takes the goods back and the consignee opens them and finds they are damaged.

Mr. CAMPBELL. And you want to protect the consignee because his servant does not obey orders; you want to put on the ship owner an absolute liability because one of his servants is negligent?

Mr. Laws. No; it does not put on him an absolute liability.

Mr. CAMPBELL. I can not see why you complain here of his continuing to be bound by a receipt signed by the person he has authorized to get his goods. He does not have to give a receipt.

Mr. LAWS. Yes, he does; he could not get the package without giving a receipt. Mr. CAMPBELL. There is no obligation in this for him to give a receipt. Mr. LAWS. Yes, there is an obligation in this. He would have to send down his well-trained man with the truck every time he wants to get anything, or would have to go down and get the thing himself." And you know that is not the way business is done. He calls up the truckman and just says, "Jim, go down and get this stuff

for me," and Jim says "All right," and then he turns to Bill and says, "Go down and get this stuff, Bill," and Bill goes down and gets it.

Mr. PAUL. Within the last five or six months I tried a case representing the railroad company, where they delivered five or six carloads of eggs to some big house in New York. They sent down a Swedish truck driver and he signed for them. There was no apparent damage. When they got them back to the storage house they found a great many of the eggs in the interior of those cases were damaged. They took the position that they could not send a man down to inspect every case of eggs, because it would take days doing it and they were apparently in good condition. We took the position that we held that receipt and that concluded them; that the damage must have occurred afterwards. In that particular case the court took very little notice of our contention, I am frank ro say. It said that it did not make much difference; that the receipt was largely a matter of form; that they had to sign some kind of a receipt to get the eggs.

Mr. LAWS. But this absolutely precludes them; this absolutely excludes the use of that notice, because it amounts to a written agreement.

Now, then, my friend seems to think that is a great hardship on him, because he says if the goods are landed down in South America and they go into the customhouse and they do not see them after that, that they are liable. Mr. Englar, I think, has effectively answered that this particular bill only covers from the time of loading on the ship to the time of discharging. But I still assert the law is, a sound statement of it, that all the carrier has to do to meet this prima facie case, is to show he delivered exactly what he got, in the condition he got it, and which he ought to be compelled to do. That is exactly what he ought to be compelled to do.

But turn to another paragraph. The assumption here is, apparently by the shipowner, that every shipper, if there is anything turns up wrong with it, must be a fraud; the shipper must have committed a fraud-intentionally committed a fraud. As against that, the shipowner is pretty well protected, because, on page 3, paragraph 3, it reads as follows:

"Provided, That no carrier, master, or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting, nor accurately to represent the goods actually received, of which he has had no reasonable means of checking."

He has a perfect protection in that if he thinks the man sending the stuff is committing a fraud. I say the average shipper is honest; the average shipper, by far the average shipper, is honest, and when he sends a package of goods to a steamship company to be shipped abroad to a customer of his, he has in it just exactly what he says is in it.

Mr. CAMPBELL. What about the shipowner that receives all of his goods from the interior, where they come to the seaboard by rail and lighter? What position is he in? Mr. Laws. In exactly the position of showing the goods in the condition he received them.

Mr. CAMPBELL. But he has no oppotunity of examining the contents.

Mr. Laws. No; but he has an opportunity of examining the thing and showing it was delivered in exactly the same condition he got it.

Mr. CAMPBELL. We do not complain about that.

Mr. LAWS. What do you complain about?

Mr. CAMPBELL. What we do complain about is concealed damage, inside of the package, which we have no opportunity of opening.

Mr. Laws. All right; but I say he meets that obligation by showing he delivered the goods in the same condition he received them.

This clause, in my opinion, is a bad clause. It is very ambiguous and ought to be corrected. In my opinion, it should read

“Provided, That no carrier, master, or agent of the carrier shall be bound to state or show in the bill of lading either the nature or the quantity of any goods contained in any package which he has reasonable ground for suspecting does not accurately describe the goods actually received, and which he has no reasonable means of checking.

Mr. HAIGHT. There is a misprint there of some kind.

Mr. Laws. It is absolutely unintelligible.

Mr. HAIGHT. It does not make sense the way it reads now; there is a misprint there of some kind.

Mr. LAWS. It makes sense the way I read it.

Mr. HAIGHT. Yes.

Mr. Laws. That is the way I think it ought to read. If it reads that way, the carrier has absolute protection. If he has any reasonable grounds for suspecting that what shipper says is in there is not in there and if he has no means of checking

it up, the carrier has absolute protection. Take it as to weight, for instance: He may suspect that is not the correct weight. All he has to do is to shove it on the scale and find out how much it weighs. If he has reasonable grounds for thinking the contents of the case are not as represented, all he has to do is to open it or call the shipper's attention to it and say “Here, I do not think this package is right. Come down here and check it up. That is the reason I think that ought to be amended. Mr. EDMONDS. That is in the conference.

Mr. Laws. I do not care whether it is or not; it is bad English.

Mr. HAIGHT. I think it is probably a misprint there. I think the original text in French was not that way.

Mr. EDMONDS. It is probably a bad translation.

Mr. LAWS. If that paragraph reads as I suggest, I see no objection to it.

Mr. HAIGHT. In the French, it is precisely that-does not represent accurately. Mr. LAWS. That is all right.

Mr. EDMONDS. After "suspecting," cut out the comma and then say "not."

Mr. LAWS. Does not accurately describe the goods.

Mr. EDMONDS. "Not accurately to represent the goods actually received."

Mr. LAWS. Not accurately to represent the goods actually received.

Mr. EDMONDS. In line 22, after "suspecting," cut out the comma and then put in the word “not," and see how it reads.

Mr. LAWS. "Which he has reasonable ground for suspecting"-you have to put in the words "does not."

Mr. EDMONDS. "Not accurately to represent the goods."

Mr. LAWS. Not accurately to represent the goods actually received? All right. Mr. EDMONDS. That word "nor," should be "not."

Mr. LAWS. Does not accurately represent the goods. If you will change it one way or the other, so as to make it clear and make good English, I have no objection to it. Then there is another clause I think we ought to change. It does not change the sense of it and does not take out, as I take it, the intended meaning of this act, but it does change the wording of it-page 6, Article III, beginning at line 12. One is where the damage results from unseaworthiness and the other is where it results from negligence in navigation. Article III, beginning at line 12, reads:

Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this section."

Then line 16:

"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."

That is contrary to the Harter Act; because, under the Harter Act, in order to make that clause effective, there must have been due diligence to make the ship in all respects seaworthy as a preliminary to getting the exemption under the navigation clause. Why should that be omitted here?

Mr. CAMPBELL. That is the only concession that was made to the ship owners in the whole act, and now you want to take that away from him.

Mr. Laws. It is directly in conflict with the Harter Act, is it not?

Mr. CAMPBELL. Yes; but, as Mr. Haight pointed out, and Mr. Beecher, if your damage results from the unseaworthiness of the ship, your owner would be liable. Mr. LAWS. Yes.

Mr. CAMPBELL. But if the damage results from negligence in the navigation of the ship, entirely apart from unseaworthiness, why should you make her seaworthiness a condition precedent to exemption from liability?

Mr. Laws. You should not; and under the American law, as you know it and as I know it, unless negligence was the proximate cause of the loss, the ship is not liable We have had case after case put up to us where the law was perfectly clear and where it says there must be a lookout, and he can not be in the wheelhouse, but he must be on deck doing nothing but looking out. That is an absolute fault of the ship and yet it has been decided time and again, if the collision occurred not because there was not somebody on the lookout, assuming the pilot and the master in the wheel house saw the other boat coming, that the absence of a lookout makes no difference in deciding the case at all; because it is not the proximate cause of the collision. That is the law and you know it and I know it. So that, under the American law, a failure to make the ship in all respects seaworthy is not the ground for the liability of owners unless it is the proximate cause of the loss; and unless you add to line 16, section (b), the words Provided the carrier has exercised due diligence to make his ship in all respects seawrothy, properly manned and equipped-you are directly in conflict

with the Harter Act. Now I suggest that beginning at line 12, it should read as follows:

Whenever loss or damage has resulted from unseaworthiness or from fault in navigation, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this section.

Then you have them both in there together, and that is the law to-day in this country and you have to put that in there or it will be in conflict with the Harter Act. Now, passing to page 6, clause 2, beginning at line 21, reads:

"Fire, unless caused by the actual fault or privity of the carrier."

Now, we have an act of Congress on that subject and the language is different. The fire clause is under section 4282 of the Revised Statutes. Section 4282 of the Revised Statutes does not use the words "actual fault or privity of the carrier," but uses the words "design or neglect of such owner." So unless you use the same words in this act as are used in section 4282 of the Revised Statutes, you have immediately a conflict, and the bill itself, later on, provides that it shall not take precedence over this section of the act of Congress, and yet you have an absolute conflict there. The language here should conform to the language of section 4282 and, instead of using the words "actual fault or privity of the carrier," it should be, in my opinion, "design or neglect of such owner. That is the way the act reads now.

Passing on to page 7, line 18, clause 17, it reads thus:

"Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents.

* * *"

That covers a vast number of special acts of Congress with respect to declaration of values and all that kind of thing, and all the other acts, for instance, section 4283, limiting the liability where there is a collision as to the value of the saved property. The language is "through the privity or knowledge of the owner," and that is very, very different from "the actual fault or privity of the carrier." In other words, for instance, I had a case, one of the very important cases that occurred on the Lakes, and those words were construed in a limitation of liability proceedings.

It was a case where a ship was overloaded. She was furnished by the managing owner to carry a given load and she was too small for the load, although it was customary on the Lakes to load boats of that size very nearly, if not quite, with the load she carried, and the owner knew-he did not load her but he knew, however, by chartering the ship to carry that load that she would be unseaworthy: at least, the court found she was unseaworthy and found it was with his knowledge and the ship foundered, and the court held him liable. The case went to the Supreme Court of the United States and, under that section 4283, they held that it was with the owner's knowledge and, therefore, they could not limit their liability, and they made them pay $108,000, as they ought to have paid. That was a very extreme case, because it not only resulted in the loss of the steamer but resulted in the loss of every life on the boat, the most tragic thing that has happened in years; the life of every member of the crew on that boat, of 20 or 30 men, was lost because the owner chartered her to carry 3,300 tons when she was only built to carry 2,600 tons, although she had been carrying, at other times, an equally large load, and overloading her. That is as acute a case as I know of illustrating that the owner shall be liable for unseaworthiness of the ship of which he had knowledge, although he did not load her and never saw her, but he chartered the ship to carry that load and he was bound to know she was bound to be unseaworthy if they put that much stuff on her. So that I say that language ought to be changed to conform to section 4283 of the Revised Statutes and that the language ought to read, instead of "without the actual fault or privity of the carrier,' without the privity or knowledge of the owner."

There is another point that one of the gentlemen of the committee has called attention to and which I have in my notes to call attention to as well, and that is on page 8, line 18, beginning in line 17:

"This declaration, if embodied in the bill of lading, shall be prima facie evidence but shall not be binding or conclusive on the carrier."

The words "binding or" should be struck out and it should read, "but shall not be conclusive on the carrier." In other words, if it is not binding, it means nothing at all; it does not affect him at all, and he ought to have an opportunity to rebut it, as has been said, and if it is not binding it means it has no effect upon him-it has no effect upon him at all. "Binding" and "conclusive" are not synonymous words at all: they are absolutely different. The words "binding or" ought to be struck out. Whether that is a peculiarity of the translation or not I do not know, but it ought to be struck out.

Mr. EDMONDS. I guess it is the same all the way through the bill; I have another translation here that reads that way.

Mr. PAUL. This is the only place in here that I have noticed it.

Mr. Laws. It is the only place I noticed it, too; but I had it on my notes here to call it to the committee's attention.

Mr. EDMONDS. The translation made in the Department of Commerce that we have is the same way.

Mr. LAWS. There is one other thing I think ought to be called to the attention of the committee and, while I may not be altogether right in it, I think it is proper to do so. That is Article I, page 3. I do not recall what Mr. Beecher said about this, but it seems to me that that article is ambiguous. The start off is all right, but the language, to my mind, is not clear.

The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage.

2. Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper.

Now, under that, I think there is a very serious ground for confusion as to whether or not the shipper has to furnish the shipowner not only with the marks as they appear on the package but whether he has to furnish him with any other writing. As I read it, there is a very grave doubt as to whether he does not have to put them on the package and then furnish him with the writing in addition, because at one time it speaks of writings and the next time it talks about the marks on the packages. Now, if he has to furnish him with both, that would probably lead to confusion. I would recommend that that language be changed to read

The leading marks necessary for identification of the goods as furnished to the shipowner before the lading of such goods starts. provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage.'

Paragraph 2 should be amended to read

"Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing or marked on the goods by the shipper."

If you leave it the way you have it there, confusion is going to happen as to whether or not he has to put them on the goods and furnish this statement besides; or whether he can furnish a written statement merely; or whether he can furnish merely the information by stamping it on the goods.

I think those are the only points I had in mind from looking over this bill. I agree with practically everybody even my learned friend Mr. Campbell, which is rare [laughter we want a uniform bill for all over the world; but I think, over and above that, we want a correct bill before we start. And, if precedent means anything, if we prepare a correct bill which is reasonable, the other nations will do just what they have done heretofore; they will adopt our bill, even if it is a little different from the bill which they otherwise had in mind. They did not adopt the Harter Act for a long time, but gradually they were forced to adopt substantially the Harter Act. The Canadian act is substantially the same. There is a little difference in the valuation. Theirs is based upon so much per ton liability in case of life and so much_per_ton liability in case of damage to cargo, but they have adopted the Harter Act. England got to the point where they said, "We will adopt the Harter Act; we have to adopt the Harter Act," and they will adopt any proper act we pass here, provided it is not radically different from what they have already agreed to. And I believe if we make those changes and some of the changes suggested by some of the other gentlemen here, we will get a very fair act, which will satisfy the shippers and ultimately satisfy the shipowners-ultimately; not at once and will ultimately satisfy the other nations. STATEMENT OF MR. D. ROGER ENGLAR ON BEHALF OF THE AMERICAN INSTITUTE OF MARINE UNDERWRITERS.

Mr. ENGLAR. I am a lawyer with offices at 64 Wall Street New York. Mr. Chairman and gentlemen, I appear for the American Institute of Marine Underwriters for whom Mr. McGee spoke very briefly; and as it appears from Mr. Law's statement that the action of the institute was not entirely unanimous I want to say a word about their position in the matter. Mr. Laws overstated, I think, the number of members of the institute. I understand from Mr. McGee that they have not over 50 members and the members are all insurance companies, and Mr. Laws states 27 were present at the meeting. I want to add to that that the only dissent from the resolution which Mr. McGee read was the dissent of the Insurance Co. of North America, and I should like to put in evidence the following text of the resolution.