Relating to the Carriage of Goods by Sea

tain responsibilities and liabilities "in regard to" the loading, etc., of the goods.

The quoted phrase was changed by the sous-commission on the suggestion of the English-speaking delegates to the phrase "in relation to"; and the wording of the sous-commission is embodied in the British statute. It seems to me evident that the latter phrase is more in accord with ordinary AngloAmerican statutory draftsmanship.

IV. Article 3, subdivision 6, in the form of 1922, declares:

"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.

"If the loss or damage is not apparent, the notice must be given within three days of the delivery of the goods.

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.

"In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered." The sous-commission in 1923 changed this to read as follows: "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, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of delivery by the carrier of the goods as described in the bill of lading.

"The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.

In any event the carrier and the ship shall be d scharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered."

The language of the sous-commission is carried into the English statute. In my opinion the later and now statutory form is preferable.

V. Article 3, subdivision 7, in the form of 1923, provides that if a shipper has taken a document of title other than a shipped" bill of lading, and a notation be made thereupon in respect of the ship or ships upon which the goods have been shipped," and the date thereof, such document when so noted "shall for the purpose of this article be deemed to constitute a shipped' bill of lading."

as to

The sous-commission inserted the words hereinafter italicized, so provide that the document issued before shipment should after notation be deemed a shipped" bill of lading “if it shows the particulars mentioned in paragraph 3 of article 3." (See discussion of this matter in the ProcèsVerbaux of the sous-commission, pp. 55-56.)

The British statute does not accept the emendation of the sous-commission; it follows the language of the draft of 1922. In my opinion the choice was well made. The insertion of the words suggested by the sous-commission tends to introduce technically into what may be and probably often would be a very informal document. For instance, a wharf receipt of a very informal kind might turned by a notation of actual shipment into something that would entirely satisfy this section as drafted in 1922. But the language of the sous-commission would perhaps wholly invalidate such a document because it would not contain in terms the particulars of paragraph 3 of article 3.

As proposed in 1922 and as now enacted in Great Britain, any court of either Great Britain or America would read the provisions of the statute or treaty into the wharf receipt I have imagined, and this ought to be the law. VI. Article 3, subdivision 8, as drafted in 1922, contains a proviso "a benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability."

The sous-commission report changed this language to read as follows: "A benefit of insurance in favor of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability."

The entire quoted clause was inserted in 1922 at the instance of the delegates from the United States in order to end a style of insurance litigation well known in our marine circles. We regarded the phrase "benefit of insurance clause as a technical expression requiring no explanation.

The British statute has not chosen the words of the sous-commission but contains the exact language of the draft of 1922.

In my opinion the amendment of the sous-commission was useless and the phrase now embodied in the statute was well chosen.

VII. Art cle 4, subdivisions 5 and 6, as they read in the conference draft of 1922, have by the sous-commission been consolidated, and the following sentence dropped out of the consolidation :

"The rate of exchange shall be taken to be the rate ruling on the day of the arrival of the ship at the port of discharge of the goods concerned."

This consolidation also required the renumbering of acticle 4, subdivision 7, of the convention of 1922, which in the sous-commission report becomes 6. The form recommended by the sous-commission has been chosen by the British statute makers and inserted into the new act verbatim. The reason for this change is that the sous-commission and the British statute makers have arrived at the position taken in 1922 by several of the delegates including those of the United States, namely, that it would be better to do what could be done to put business on a gold basis. This has been done by the first sentence of article 9 of the sous-commission report and the same article in the British statute, namely, that "the monetary units mentioned in these rules are to be taken to be gold value."

To give an illustration of what this means: If the rules as recommended in 1922 had become law in both Great Britain and the United States, a British vessel issuing a bill of lading under the rules would have paid, say, about $4.46 per pound in compensation for loss and damage under this article. Today under the British statute now law, a British vessel would be liable at the par of exchange up to £100, no matter what the actual exchange might be. VIII. Article 5 of 1922 provides as follows:

A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities under these rules provided such surrender shall be embodied in the bill of lading issued to the shipper."

The sous-commission in 1923 varied this so as to read as follows:

"A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilites and obligations under this convention provided such surrender or increase shall be embodied in the bill of lading issued to the shipper."

2.9

The British statute adopts the language of the sous-commission, except that it substitutes for the phrase responsibilities and obligations the words responsibilities and liabilities."

In my opinion the substitution of the word "liabilities' for obligations" is better legal English, and the amendment introduced by the sous-commission makes the rights of parties clearer without changing the substance. IX. Article 7, in the draft of 1922, reads as follows:

'Nothing herein contained shall prevent a carrier or a shipper from inserting in a contract any stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connection with, the custody and care and handling of goods prior to the loading on, and subsequent to the discharge from, the ship on which the goods are carried by sea."

The sous-commission in 1923 changed this to read thus:

Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the resposibility and liability of the carrier or the ship for the loss or damage to, or in connection with, the custody and care and handling of goods prior to the loading on, and subsequent to, the discharge from, the ship on which the goods are carried by sea."

The British statute chooses the language of the sous-commission.

The change is merely a matter of form, and the later form is in my opinion better because the idea suggested by "entering into" an agreement is a wider and clearer idea than that contained in the phrase inserting in a contract a stipulation, etc.

X. Article 9 of the draft of 1922 is carried forward as article 10 of the sous-commission draft of 1923.

This clause is appropriate to a convention but not to a statute. Therefore it is omitted in the British statute, as are several other articles of the same nature.

Therefore the British statute ends with the first sentence of article 9, which has been heretofore treated of as putting so far as possible claims arising under this method of doing business on a gold basis.

The result in my opinion of a comparison of the three latest forms of the so-called Hague Rules is that the English diction of the British statute is the best form yet devised, and that it presents no substantial variation from the draft convention of 1922 other than the gold basis concept, and that I think is an improvement.

BRIEF BIBLIOGRAPHY ON THE HAGUE RULES AND THE BRUSSELS CONVENTION

The Hague Rules, 1921 versus The Harter Act. (Prepared by the Institute of American Meat Packers, Chicago, and presenting arguments in opposition to the adoption of The Hague Rules.)

Relating to Carriage of Goods by Sea. Hearings before the Committee on the Merchant Marine and Fisheries. Government Printing Office, 1923. Digest No. 34, The Hague Rules and the Brussels Convention. International Chamber of Commerce, Paris.

Export Trade (weekly magazine), New York City. Articles on The Hague Rules by A. J. Wolfe, December 2, 9, and 23, 1922.

Commerce Reports, May 8 and 15, 1922. The Hague Rules Analyzed, by A. J. Wolfe.

Commerce Reports, March 20, 1922. A Review of Objections to The Hague Rules, by A. J. Wolfe.

Commerce Reports, March 13, 1922. Opponents, by A. J. Wolfe.

The Hague Rules, 1921, as Viewed by

Report from the General Committee on the Carriage of Goods by Sea Bill. H. M. Stationery Office, London, 1923.

Report by the Select Committee on the Carriage of Goods by Sea Bill. H. M. Stationery Office, London, 1923.

Trade Information Bulletin No. 19, The Hague Rules, 1921 (exhausted). Report of the Delegates of the United States to the International Conference on Maritime Law. Government Printing Office, 1923.

Conference Internationale de Droit Maritime, Bruxelles, 1922; ProcèsVerbaux. Brussels, 1923.

(The Division of Commercial Laws has a collection of clippings from British newspapers reporting and commenting on the London conference in October 1922.)

STATEMENT OF MR. NORMAN DRAPER, INSTITUTE OF AMERICAN MEAT PACKERS, CHICAGO

Mr. DRAPER. Mr. Chairman and gentlemen, there are two or three things I would like to refer to before I discuss the bill itself.

In the first place, the statement was made here this morning that all the major complaints of the shippers have been satisfied by the changes that were made in this bill in England. The statement also was made that shippers, all over the world, are desperately anxious to see these rules enacted.

I represent the Institute of American Meat Packers, which normally exports goods to the value of about 20 per cent of the total exports of the country. What I say also goes for the National Industrial Traffic League. Our views are also substantially the same as those of the American Farm Bureau Federation; the California Dried Fruit Shippers League; the National Association of Manufacturers; and the American Hardware Association. So that the shippers are not crying for this bill in its present form.

We have four major objections to this bill as it is. The first one is this deviation clause which appears on page 8, section 4. The suggestion has been made that the words "in jeopardy" at sea be cut out. While we do not stand for those words "in jeopardy particularly, we have had very sad experiences with ship companies who had a lot of perishable goods on board and a fire would break out across the bay, or down the Jersey coast some place, and they would see a chance to get a little bit of salvage out of it, and they would sail down the Jersey coast with the cargo of perishable goods, to see what they could save. The result is our goods are held up and, by the time they get to Europe, we have either lost the market or the consignee refuses to accept the goods. That was the reason for those words "in jeopardy" and we suggested they be placed in there.

We do not agree with the suggestion that the lines 10 and 11 should be cut out and that the word "reasonable " deviation should be inserted, as it is in the British bill. The word "reasonable " does not mean anything. It may be reasonable to the master of the ship, a deviation maybe, and it may be entirely unreasonable to the owner of the goods that are on his vessel. The courts all over the world will construe that word “ reasonable" to mean anything and, in the course of about 20 years, we won't have any more than we have now, except we will pay considerable sums to admiralty lawyers all over the world, and we are anxious to get out of law suits.

The second change is on this word "package" or "unit." I expressed myself about that awhile ago. We think that word "unit" may mean anything, page 8, line 18, and in the case of a Packard automobile, for instance, that I mentioned just awhile ago, it depends on how the carrier of the goods can get out of it-if he can get out of it cheaper by paying on the unit," or if he can get out of it cheaper by paying on the "package." He will offer to settle with the owner of the goods on the basis under which he has to pay the least.

Mr. BLAND. Have you any suggestion as to any language that will clarify it?

Mr. DRAPER. As far as we are concerned, we would be perfectly satisfied if they would leave out that word " unit." Of course, we are not shippers of bulk cargo. I can understand there may be some reason to get in some other language which will cover bulk cargo. If that word "unit" can be made to cover bulk cargo explicitly, I think our objections will be met.

Mr. LARSEN. Do you object to the word "unit," or are you just discussing it without any special objection?

Mr. DRAPER. We object to the words "package or unit," because it leaves the shipper not knowing exactly where he stands.

Mr. LARSEN. The question is how the word "unit" affects your packers. That is what I want to get at.

Mr. DRAPER. Suppose we take lard in tierces, or take lard that may be shipped loose, as some of it is. Now, what is it; is it per package or per unit? If it is in a tank we will say-some lard is shipped that way; not much, but some is-we would run into difficulties with that.

We will take a shipment of bellies. Is the shipment a unit, or is each box a unit? We do not know. Mr. Haight will tell us one thing; some other lawyer will tell us another; our attorneys tell us still something else, and the courts will decide probably in a different way. We will be spending a lot of money in the courts all over this country and in other countries to find out, and we are trying in all these objections, to get away from as many law suits

as we can.

Mr. EDMONDS. If we strike out the words "or unit" and just leave the word "package," where would you be then?

Mr. DRAPER. Oh, we would be all right then.

Mr. BLAND. How about the others?

Mr. DRAPER. As far as we are concerned, we would not have a package worth over $500.

Mr. FREE. It is a general law. How about oil or wheat; how would you designate that?

Mr. DRAPER. That is just the point. As I say, we are not shippers of bulk cargo. There may be some reason for putting the word in; and if it is confined to that exclusively we do not object.

Mr. LARSEN. There is a gentleman over there I understood had some words to relieve all that, and I think the committee could just as well have him do that right now, and save all this discussion.

Mr. CHANDLER. I was just discussing it with Mr. Haight, and, if the chairman will permit, I think it will shorten the discussion if I make a statement now. The suggestion of the organization I represent is that the language be changed to read like this

* * * $500 per package; or in case the goods be not shipped in packages, per declared freight unit.

Mr. HAIGHT. Absolutely all right.

Mr. LARSEN. How does that suit you, Mr. Draper?

Mr. DRAPER. Yes, sir; that will meet our objection entirely. Mr. ENGLAR. Mr. Chairman, may I make a suggestion? I agree with the suggestion that has just been made, with one qualification. I would suggest, in place of the words "per declared freight unit," the words per ordinary trade unit."

The reason for my suggestion is that I think it is very doubtful what the declared freight unit is. The words "freight unit" seem to me open somewhat to a charge of ambiguity as to the word "unit." You may say the unit was per bill of lading. If you say ordinary trade unit," it seems to me that must mean, in the case of coal, per ton; in the case of grain, per quarter; or, in the case of lumber, per standard. I do not like the words "freight unit." Mr. DRAPER. I think the suggestion is a good one. I will approve that one, too.

Mr. NICOLSON. We prefer Mr. Englar's formula, too, Mr. Chair

man.

Mr. EDMONDS. In the case of goods shipped in packages

Mr. ENGLAR. Per ordinary trade unit. Just as a suggestion, I think you might put the words "in the case of goods not shipped in packages." I think they might be put in parentheses; I do not know whether you ever use parentheses in statutes.

Mr. WHITE. We use everything in statutes.

Mr. ENGLAR. It would clarify it.

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