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the Senate, if we desire to change a word or two, or to put in a word there, I do not think anybody would object to it at all,
Mr. ENGLAR. If they do not, very well. I do not know whether they will or not.
Mr. HAIGHT. Isn't it inane to talk about fires caused by knowledge? How is it caused by knowledge?
Mr. ENGLAR. I was just coming to that. I do not want to appear here as taking the position, because this convention has been issued from Brussels, that we have to take it: because if there are any changes necessary we will make them, of course. I am simply trying to point out that I do not think any change in substance is necessary and, in this connection, I do not think the words "fault or privity” put any less burden or any greater burden on the carrier than the words “design or neglect.”' Personally, I should be just as well satisfied to represent a cargo claim with the words ** fault or privity" as I would with the words "design or neglect." I have never been able to find any authority for the proposition there was any difference in the effect between the English language fault or privity” and our language “knowledge or privity." Therefore, my suggestion would be, in section 7, at the top of page 11, that we omit the reference to the particular section which deals with fire. That will leave our statute of limitations in full force and effect and we will have the provision with respect to fire governed by the provisions of this convention, which I think are perfectly equivalent, if not stronger in favor of the cargo owner, but there is that inconsistency which must be corrected, of course.
I have not very much more to say. On page 8, the £100 clause, I simply want to point out-I suppose it is obvious, anyway, and it is perfectly clear-that the shipowner in no event will have to pay anybody £100 when it is more than the actual value of the goods. In other words, he does not have to pay £100 because that is the limitation in the bill of lading. That is simply the maximum of liability. The contrary is perhaps true of the agreed value. In the succeeding paragraph, in the declaration of value, I rather think that does make out a prima facie case for the amount of the declared value, and I think the criticism of that paragraph has some foundation; but as to the £100 clause, that does not apply. I do not think that agreed value, though, that declared value, will be very important, because the shipowner would have the same protection that the underwriter has-namely, that the shipper has no control over his goods while they are in the carrier's possession and he is not in a position to bring about a loss, and he can not bring about with a given package, because he has overvalued it, that it will be lost; it is something beyond his control.
Mr. EDMONDS. It would be more likely to loss, though, if they put too high a valuation on it, would it not?
Mr. ENGLAR. I do not think so, because if they put a very high value on it the carrier would ordinarily give it greater protection. That is the theory of puttting a higher valuation on it.
Mr. EDMONDS. Would not the sailor be more apt to take a package with a very high value on it than he would a package with a low value on it?
Mr. ENGLAR. The sailor does not have anything to do with the very valuable packages. If it be a very valuable package, it goes in the strong room, and if it is a fairly valuable package it goes in the hold.
Mr. EDMONDS. From all we have had told us about theft and pilferage, I thought the sailor had a good deal to do with it.
Mr. ENGLAR. Of course; but he does not have an opportunity to compare the manifest with the declaration of value. That is entirely without his province. Sometimes the mates do.
Mr. EDMONDS. Sometimes they get into the game, too, and the captains, also?
Mr. ENGLAR. Yes; that is unfortunately true, and there is no doubt some injustice might result from that; but I think it is a very remote cauee if anything of that sort would happen and, beside which, they probably would not take it away if they found it was not as valuable as it was represented to be.
I do not care to take up your time with anything further, except I want to make it clear that my interest in the rules is not to argue that they are perfect. They are not perhaps the best rules that could be gotten up, but I am not at all sure, if
do not decide that we are to have a complete new deal, that these rules are not going through, if we sat down and went into the whole thing de novo, that anybody would be any better off when we got through; because this thing is a compromise, we have all given up a little something, but nobody has yet pointed out anything in these rules that is inherently bad. Various minor changes have been made and various minor changes have been suggested and no doubt if you were to open up the whole subject again the cargo interests would have some changes they wanted to make. We can all make changes, but nobody has pointed out anything in here which is really bad and I am not at all sure we would ever get any better off even though we were to ignore the other nations completely and there was nobody to consult but the American intereste and you were to take a week here I am not at all sure you would get any better result than this and then we would not have any uniformity,
Now, this represents the first compromise of its kind, I think, in the history of the shipping business. We have our lion and lambs sitting down together. Mr. Campbell represents the lion and I am representing some of the lambs and we are all here together and most of us have agreed.
A VOICE. And don't forget the goats are present, also. [Laughter.]
Mr. CAMPBELL. Don't you think the British interests were the lion and our delegates over there were the lambs?
Mr. ENGLAR. No; I do not. I do not think that at all, because the British shipowners were being hounded by the British shippers a whole lot harder than we have ever been able to hound the American shipowner; they had the British shipowner on the run. That is how this came about. It was not because the British shipowners were putting anything over, but the British shippers were trying to get justice from the British shipowners. That is what started this. The question of nationality was merely incidental; it merely served to start the conflict between two conflicting interests, and it did not matter whether it was the British cargo interests against the shipping interests, with the bankers and insurance companies sitting in between, or not. As a result of that real struggle this compromise came about, and there has never been anything like it before. It is not unaninous, but the great majority of the different interests that have been heard here, I think, are agreed on this compromise, and it was gotten up-none of us here had anything to do with it, except Mr. Beecher; he is the only man here who had anything to do with getting it up. They simply began with the Hague rules and changes have been made; they have been modified here and there as was suggested by the different interests, and in the main it represents the final compromise between all the interested parties, and it seems to me a compromise of that sort has far more chance of being finally and definitely satisfactory than any set of rules which may be gotten up and enforced by Congress or by any other legislative body, because if it is done in that way some interest is bound to be upset and bound to be coming back for relief and trying to get it changed. I say, if Congress can see its way clear to adopt this set of rules, gotten up as a compromise, they hold out a great deal of hope for real satisfaction all around and for a permanent settlement of these issues.
Mr. CAMPBELL. You do not think they will be satisfied?
Mr. EDMONDS. I thought you were going to propose the abolishment of general average. (Laughter.]
Mr. ENGLAR. The only reason I did not, Mr. Edmonds, is I have not been able to figure out anything to put in its place.
Mr. CAMPBELL. May I ask if you consider it a practical proposition to give notice of your claim before removal of the goods?
Mr. ENGLAR. As conditions are now, Mr. Campbell, it has not been practical as a rule. Some people have been able to do it and it can be done theoretically, but practically let us assume it can not be. I am not prepared to say it can not be done.
Mr. CAMPBELL. Then you do not exactly approve of that part of the section with reference to that notice?"
Mr. ENGLAR. No. Representing the interests I do, I would be very glad to dispense with a notice; I would be glad to say we did not have to give any notice, but I recognize there are two sides to this thing and, from the standpoint of the shipowner, I think he has a certain moral right to be given some notice. If the goods are damaged when removed, I think he can fairly claim he ought to have some notice of that; but if the damage does not appear until they are opened up I think he can fairly ask that he be given direct notice. And while that is contrarty to my interests, in so far as I am interested in it, I think it is better to accept a compromise like this than to argue for something which I am confident will never be permanently ob. tained. Even though we got a law which provides that the shipowner should never get any notice until he was sued, I do not think they would retain that, but that sooner or later there would be propaganda started to change it and eventually it would be changed. And, therefore, while I do not see in here everything I would like to have, I think it is a fairly good trade. That is the way I feel about it.
Mr. CAMPBELL. In 1921, in discussing a similar rule, I believe you said it was wholly impracticable under such regulations to preserve your rights unless you had a lawyer at each pier?
Mr. ENGLAR. That is true, but you see what has happened since then. The reason I take a different position now is because the failure to give notice under this act is
not a final bar to your claim, and to my mind I do not think it is anything I do not like to say this before Mr. Campbell, but I do not think it is anything Mr. CAMPBELL. Don't hate to say that on account of my feelings. [Laughter,]
Mr. ENGLAR. You would always have to prove thať the goods were damaged when the carrier delivered them. All this says is there is a prima facie presumption they were in good condition when delivered. What does that mean? It means you have to prove they were damaged when the carrier delivered them. You have to prove that, anyway, so that I do not think this prima facie presumption that the shipowner has is much above what he has now.
Mr. HEINEMANN. Of the shipowner?
Mr. ENGLAR. Of the consignee; I do not think it is much above that which he has DOW. (The following is the letter submitted by Mr. Englar for the record:)
NEW YORK, January 22, 1923. Hon. GEORGE W. EDMONDS,
House Office Building, Washington, D. C. DEAR SIR: Referring to your letter of the 16th instant and my reply of the 19th instant, I now take pleasure in sending you herewith certified copy of resolution adopted, to-day, by the American Institute of Marine Underwriters. If any action is taken by any of the other commercial organizations with which I have been in touch in connection with this matter, I will see that such action is promptly brought to your attention.
I should be very much obliged for any information you can give me as to the procedure which is likely to be followed with respect to the Brussels convention, i. e. will there be any public hearings with respect to it and, if so, what body will preside over such hearings? Very truly yours,
D. ROGER ENGLAR.
EXTRACT OF THE MINUTES OF A MEETING OF THE AMERICAN INSTITUTE OF MARINE UNDERWRITERS, HELD IN THE BOARD ROOM OF THE BOARD OF UNDERWRITERS OF NEW YORK, AT 25 SOUTH WILLIAM STREET, NEW YORK CITY, ON MONDAY, JANUARY 22, 1923, AT 12 Noon.
There were present:
larine W. A. W. Burnett.
Insurance Co. of North America, by G. C. Morris, H. T. Chester, and T. Young (Field & Cowles).
Standard Marine Insurance Co. and Merchants & Shippers Insurance Co., by W.J. Roberts.
Thames & Mersey Marine Insurance Co. and Union Marine Insurance Co., by F. H. Cauty.
Sea Insurance Co., Marine Insurance Co., Federal Insurance Co., London Assurance Corporation, and Hartford Fire Insurance Co., by Hendon Chubb and T. H. Allen.
Home Insurance Co., by L. F. Burke.
Providence Washington Insurance Co. and St. Paul Fire & Marine Insurance Co., by Wm. H. McGee, C. L. Goldby, and C. E. Buckton.
Glens Falls Insurance Co., Hanover Fire Insurance Co., Continental Insurance Co., and Fidelity Phenix Insurance Co.,
by E. C. Torrey. Automobile Insurance Co., by C. R. 'Ebert. Northern Underwriting Agency, by W. A. Cale and J. F. Murphy: American Merchant Marine Insurance Co., by 0. J. DuFour. Western Assurance Co. and National Liberty Insurance Co., by E. W. S. Morren. Also present:
Mr. Ď. R. Englar and Mr. O. R. Houston, counsel, of Messrs. Bingham, Englar & Jones.
Mr. Laws, counsel, of Insurance Co. of North America.
Mr, William H. McGee, president) in the chair), and Mr. E. G. Driver acting as secretary.
The chairman referred to the recent pamphlet circulated among the members of the institute containing the “Draft International Convention for the Unification of Certain Rules Relating to Bills of Lading,” which was in fact an amendment to the original Hague rules of 1921, and in this connection Mr. Englar advised the receipt
of a letter from Congressman Edmonds indicating that he would like to learn the position of underwriters with respect to the revised rules.
Mr. Laws, counsel, representing the Insurance Co. of North America of Philadelphia, who said he was still unalterably opposed to the rules, submitted his views in which he stated his objection to certain features of the rules, namely, the uncertainty as to the liability of the carriers for goods in their custody prior to loading on and after discharge from the vessel; the provisions of paragraph 6 of Article Îl, requiring that notice be given, within three days after delivery of the goods, with respect to any loss or damage which is not apparent; the limitation of the carriers' liability to £100 per package; and the use of the ambiguous word "convention” in Articles VIII and Ix.
Mr. Englar subsequently responded to the points raised by Mr. Laws, and after general discussion, Mr. Morris moved, in effect, that the new draft international convention, whilst it might be an improvement upon the original Hague rules, was not satisfactory, inasmuch as it did not make the carrier responsible, as such, under the contract of carriage, for the custody of the goods before loading and after discharge; and also because the liability of the carrier is limited, under the convention, to the sum of £100 per package.
The motion of Mr. Morris received no second, and Mr. Cauty moved
"That while these rules do not meet all the points we would like to have embodied in them, we feel that as they stand they deserve the support of the institute."
Motion seconded by Mr. Ebert and carried, the Insurance Co. of North America dissenting.
I hereby certify that the foregoing is a correct transcript of an extract of the minutes of the meeting of the American Institute of Marine Underwriters, held in the board room of the Board of Underwriters of New York, at 25 South William Street, New York City, on Monday, January 22, 1923, at 12 noon.
ERNEST G. DRIVER, Sécretary. (The committee thereupon adjourned until tomorrow, Wednesday, February 14, 1923, at 10 o'clock a. m.)
COMMITTEE ON THE MERCHANT MARINE AND FISHERIES,
HOUSE OF REPRESENTATIVES,
Wednesday, February 14, 1923. The committee met at 10 o'clock a. m., Hon. William S. Greene (chairman) presiding.
The CHAIRMAN. I wish to make the following statment for the record. Mr. J. Floyd Johnston, of Appleton & Cox (Inc.); Mr. W. H. Jones, of the Marine Office of America; and Mr. H. E. Reed, representing the Firemen's Fund Insurance Co., all of whom are in attendance at this hearing, desire to have the record state that they are in entire accord with the views presented by Mr. McGee in his testimony at yesterday's hearing.
The first witness this morning is Mr. Gray Silver. Give your name and address to the stenographer and state for whom you appear. STATEMENT OF MR. GRAY SILVER, WASHINGTON REPRESENTA
TIVE OF THE AMERICAN FARM BUREAU FEDERATION,
Mr. SILVER. Gray Silver. I am Washington representative of the American Farm Bureau Federation.
Our group is very much interested in this measure before the committee and not in favor of it, and I would like to ask of the committee that we might have the opportunity for our transportation department to file a brief in the case.
The CHAIRMAN. When do you want to file it? Mr. SILVER. Just as soon as it can be prepared. The department of transportation of the federation is in Chicago and not in Washington.
The CHAIRMAN. You are not in favor of it?
The CHAIRMAN. The only trouble is we will have to hold up all these hearings to wait for your brief, and it is near the end of the session.
Mr. SILVER. It will be coming forth very shortly, but I can not tell at what hour or day.
The CHAIRMAN. I know, but it will hardly be fair to hold up the printing of the hearings when there are Members of Congress who want to get hold of them. I will try to accommodate you as far as I can.
Mr. SILVER. Thank you very much.
The Chairman. I can not promise you to hold them up to the detriment of all of the people who want to get them and use them.
Mr. SİLVER. No; and I do not want you to misunderstand me. My notice of this hearing was short, and my purpose in appearing here to-day was to ask that we might have the opportunity of expreseing our views in a written brief.
The CHAIRMAN. We will give you that opportunity unless it is a matter of impossibility.
Mr. Haight. Might we ask if the gentleman will state, in general terms, his objections at this time?
The CHAIRMAN. Yes. Are you willing to give us a general idea of the objections you have to it?
Mr. SILVER. Mr. Chairman, I am not prepared to do so. Our transportation department has studied this matter and has it in hand and, personally, I am not prepared to do so.
The CHAIRMAN. You have not heard the arguments in favor of it at all?
STATEMENT OF MR. C. B. HEINEMANN, VICE PRESIDENT, INSTI
TUTE OF AMERICAN MEAT PACKERS.
Mr. HEINEMANN. My name is C. B. Heinemann, and I am vice president of the Institute of American Meat Packers, located at 509 South Wabash Avenue, Chicago, Ill.
I represent also in this proceeding the Chicago Association of Commerce and I will now present to you their credentials:
FEBRUARY 10, 1923. Chairman House Committee considering Brussels rules:
This is to ify that C. B. Heinemann, vice president, Institute of American Meat Packers, an honored member of the Chicago Association of Commerce, has been appointed representative of the Chicago Association of Commerce at the hearing on Brussels rules to be held at Washington February 13, 1923. Very truly yours,
THE CHICAGO ASSOCIATION OF COMMERCE.
W. L. WARE, Trade Commissioner. I represent also, in a limited way, the National Industrial Traffic League. The CHAIRMAN.' Who is that? Mr. HEINEMANN. I will explain each one of these organizations, Mr. Chairman, so that the committee may have a very fair conception of what we cover.
The Institute of America Meat Packers was organized in 1906 as the American Meat Packers Association. In 1919, it was reorganized and christened the Institute of American Meat Packers. It is the national trade organization of the meat-packing industry and the largest industry in America in point of volume. I will now file one of our membership lists, so that the record may show just what packers are included therein. We publish this list twice yearly, January 1 and July 1, of each year. This is the January 1, 1923, list, and shows a total membership of 260.
The CHAIRMAN. Do you want those names inserted in the record ?
Mr. HEINEMANN. I will leave that entirely with you. So far as we are concerned, it is of course immaterial,
Mr. BLAND. Mr. Chairman, for one, I would like to have it in.
Mr. PRICE. Do you want the names of all of the 2,000 flour millers who are members of our organization also for the record ?
Mr. Bland. We will pass on that when we come to it.