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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:
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 proceedinge.
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
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. I sent a copy of it to Mr. Edmonds with my letter of the 22d of January, and I should like to have that put into the record.
"That while these rules do not meet all the points we would like to have embodied in them, we ieel that as they stand they deserve the support of the institute.''
I want to say in that connection, however, that I do not think there is any real difference between the Insurance Co. of North America and the rest of the companies, excepting that the Insurance Co. of North America has much greater confidence than the rest of the companies have in the ability of this committee, or of the Congress, or of the State Department, to bring the rest of the world around to our point of view. We all agree with Mr. Laws that we would like to rewrite these rules and there are a number of minor changes we should like to make in them if we were rewriting them now.
There are a number of errors of translation which will no doubt be corrected by the State Department in agreement with England. There are a number of minor verbal changes which I think could be made and would undoubtedly improve the rules.
But the rest of the insurance companies feel that we can not, probably, change these rules even in minor particulars without losing the benefit of this entire movement that has gone so far. We feel, as was remarked by one member of the committee 9 few minutes ago, that, if this fails, we will be right back to where we started; but the Insurance Co. of North America may be quite right (they very often are right; have been right in many cases, and may be right now) in believing we can force the issue here and that any bill which is agreed on by the American interests will be adopted abroad. That is a matter for the committee to determine when they consider the weight of the objections that have been made--whether they are important enough to justify our departing from this movement, withdrawing from it, and getting up a movement of our own in a hope that the other countries interested will follow us. Personally, I do not feel at all confident they will and that is the feeling of most of the underwriters.
Mr. McGee has just informed me that the actual membership of the institute number 34.
Mr. Haight. And 27 present?
Mr. Laws. I have not counted them, but I understood there were 150 members and only 27 present.
Mr. ENGLAR. The minutes will show the list.
Mr. Laws. I do not think 34 insurance companies are all the insurance companies of the United States.
Mr. ENGLAR. I do not know, Mr. Laws, whether they are or not, but that is the membership of the institute.
Now, as I have listened to the criticisms that have been made of the rules, my imimpression has been that most of them would not justify this committee in declining to adopt these rules because of any point that has been raised here.
Mr. Laws made a number of points that I agree with in principle. I think the language of subsection (f), on page 4, which he read is perhaps unfortunate. It 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. If we were rewriting the rules, I should join with Mr. Laws in asking that that be deleted or changed, because it does, unfortunately, raise the possibility that the truckman may sign for the goods as sound and that may prevent the consignee from later giving notice that they are damaged. But I say that we have our remedy. We never have had it before, we have been absolutely barred; if we did not put our claim in before removal of the goods, we were out of court. Now that we have our remedy, we can tell our truckman he must not sign for damaged goods without putting a notice on the receipt that they are damaged; we must tell him if the goods are in apparent good order and condition, he must only say on the receipt they are in apparent good order and condition; he must not say they are in good condition. But, over and above all that, even if the truckman does not comply with his instructions, if he is unable to read and write, we still have a right to come in court and prove, if we can, that our goods were not in good condition when delivered. That saving clause is what we rely on.
Now, there have been two suggestions
Mr. CAMPBELL. Then who has the burden when they are damaged in the customhouse?
Mr. ENGLAR. On that point, I do not see how there can be any fair room for a difference of opinion as to the measure of your liability-as to the extent of it, rather, the time it extends over. The fact we can give a notice does not fix any liability on you.
It is true our time to give you notice will extend it beyond the period for which you are liable. It is extended for three days, in which time we can take the goods into our warehouse and examine them. You are not liable for any damage occurring in that three days and we have three days within which to give notice but the time in which we can give notice has nothing to do with the period for which you are liable.
Mr. CAMPBELL. You just said if you can prove they were damaged when they were delivered to you?
Mr. ENGLAR. Yes.
Mr. ENGLAR. We have to prove they were damaged when you delivered to the customhouse, or to anyone to whom you had a right to deliver them. That has always been so and always must be so, because no law could be passed that you would be responsible for damage after you parted with possession of them. All this law does is to say our time is extended for giving the notice, and that is natural and logical; but, after we have given notice, we will have the burden of proving they were damaged when you parted with the possession of them, and these rules, the Harter Act nor any other law could not have any different meaning, because neither Congress, the State Department, nor anybody else can agree to a regulation that after you had parted with the goods you were liable for what happened in the meantime. You are only liable for what happens while they are in your custody:
A good deal has been said about the Harter Act. It has always been my understanding and I understand it is the understanding of the committee, that before and after these rules apply--that is, before the commencement of loading and after the completion of discharging-the transaction is governed by the law as it exists now, notwithstanding the passage of these rules. The rules go into effect in so far as they apply; that is, from the beginning of loading until the end of discharging, during which time they are controlling; but, before and after that period the law remains as it is to-day. Now, our most important law in that connection is the Harter Act, and I want to point out that the Harter Act does not impose ary burden on any particular class of ships, because the Harter Act has nothing to do with the nationality of the ship. The Harter Act applies to all vessels sailing to or from American ports; it does not matter whether they are British, Dutch, or what not. But when the transportation is not to or from an American port, it does not apply to any ship, not even to an American ship. In other words, if an American ship transports goods from Brazil to any one of the European ports, it would not be subject to the Harter Act; so that there is an absolute equality in the position of all ships of all nationalities under the Harter Act. If British ships ply to American ports, they are subject to the Harter Act just as American ships, in the same trade, or any other ships, are subject to it; but neither ship is subject to it in any other trade. It regulates a certain trade and not a certain nationality of ships, or a certain class of ships.
Now, I have no doubt whatever that the wording of these rules, even with Article VII left in, has that effect. I find nothing in Article VII which tends to repeal the Harter Act before loading or after discharging, and for that reason I think it may prove wise to reinstate Article VII-to put it in there in order to preserve the uniformity which is so important. Article VII simply says that
“Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement
Nothing in here does prevent them, but the Harter Act prevents them, or some other act may prevent them, but I find nothing in that article which is contrary to that understanding, and for that reason, while I do not advocate putting Article VII back in, I simply want to go on record as saying if it is found inadvisable or impracticable, to leave it out, that I think it does absolutely no harm. Some of us before this meeting and in preparation for it discussed the possibility of adding a clause to the rules to clarify that issue. I think that can be done without any interference with the rules or with the convention, because the convention, by its terms, provides that it does not apply before loading and after discharging; that means that every nation is left free to pass its own laws during that period. Therefore if you pass the rules as they stand, if you pass this convention as it stands, we are left perfectly free to regulate our own affairs as to what happens before loading and after discharging. While I have no doubt that the Harter Act will remain in full force and effect with the Article VII in there, it seems to me it would be more in conformity with this desire for uniformity, in which we all concur, to put Article VII in, so that we pass the rules in their entirety, and then to add an explanatory or supplemental clause, which might be, in form, a part of these rules, although it could just as well be a separate act. And I have drafted a suggested additional article, which I should like to read into the record, although I do not advocate it; I do not think it is necessary. I simply suggest the addition of this clause as an alternative to the omission of Article
VII, because it seems to me that that would be a more scientific way to approach it and would be less likely to interfere with the general adoption of these rules by other nations. I suggest adding, at the end of Article VII as it stands now in the convention, substantially the following provision:
“Provided, however, That the validity of any agreement, stipulation, condition, reservation, or exemption entered into pursuant to this article, so far as it relates to the responsibility or liability of the ship or carrier prior to commencement of the loading or after the completion of the discharge, shall be subject to the provisions of the act of February 13, 1893, commonly known as the Harter Act, and to any other law which would be applicable in the absence of this act.”.
That can either be added as a proviso to Article VII, or it can be added as a separate article at the end of the act.
I have already explained personally that I do not think it is necessary; but, on the other hand, I do not think that the addition of such an article would in any way constitute a departure by the United States from the recommendations of this Brussels convention, because, as far as the cargo interests are concerned, their position has always been and is that they would like to make these rules apply from beginning to end—from the time the carrier received the goods until he gives up possession of them. The shipowners are unwilling to do that. The result is, it leaves each government free to regulate as it sees fit that part of the transit not covered by the rules, and by our own extension of the rules to the entire possession and custody of the carrier I see no departure from the rules in adding a provision of that kind.
I want to make another suggestion, again simply trying to meet, without departing from the principle of uniformity, an objection that has been raised. The point was made this morning by, I think, two members of the committee that in subdivision (f), on page 4, there was an ambiguity about the three-day provision; that it might be construed as giving an absolute defense to the carrier if the notice were not given within three days. I do not think that is so. I think it is clear, from the reading of the whole paragraph, that the three-day provision, like the provision for giving notice before removal of the goods, relates only to the question of the prima facie evidence. I do not think it is an absolute bar at all. But I suggest, in view of the fact that this is a translation from a foreign language and we have to do some thing more than to put down the literal equivalent of the French words as they stand (what we have to do is to put into English the meaning of the French document), I do not see that it would be a fatal departure from the rules to insert at the end of line 16, in parentheses, the following words: "(or, if the loss or damage is not apparent, within three days after such delivery)"
Then the sentence at the bottom of page 4, line 17, could be omitted. It seems to me that is not an unreasonable liberty to take in a translation.
Mr. Haight. Then you omit lines 19 and 20 also?
Mr. ENGLAR. Yes; strike out that last sentence. That again I think is unnecessary, but I do not see it is any departure from the rules. Now anything beyond that although I agree with some of Mr. Laws's criticisms, I am strongly opposed to adopting them in so far as they involve any departure from the substance of these rules; not because I do not think he is right, but because I think it is far more important for us to get these rules as they stand than it is for us to produce, as we might in time, a perfect set of rules which no one could criticise but which no one would adopt.
Mr. Laws made another suggestion which I think requires consideration and some action. Mr. Laws points out, on page 6, line 21 (the clause relating to fire), that the provision as to fire, which is unless caused by the actual fault or privity of the carrier”--that the language there is different from our fire statute and, therefore, that provision is inconsistent with the section 7 at the top of page 11, which provides that the sections 4281 to 4289 of the Revised Statutes shall not be ineffective. We could not leave the fire statute in force and still put into effect this clause 2, on page 6, and I think the remedy for that is fairly simple. I do not think there is any difference, any material difference, between the words “fault or privity and the words of the fire statute, which are "design or neglect." The words "fault or privity" are taken from the English Statute of Limitations, which is slightly different from ours. Our statute, which otherwise is practically identical, uses the words "knowledge or privity," and the English statute says "fault or privity," and in this convention they have adopted the English words - fault or privity.'
Mr. Edmonds. I do not believe, Mr. Englar, there would be any objection on the part of the other parties to this if we wanted to put the word "knowledge” in there.
Mr. ENGLAR. I do not suppose there would be, sir.
Mr. EDMONDS. I do not think of necessity we have to take it word for word. I understand if we want to put anything better in our bill, we can do it; that this is only a basis and what you want to better you can do; so that when the treaty gets over in