Mr. EDMONDS. You mean to put the whole thing in parentheses? Mr. ENGLAR. No, just the words "in case of goods not shipped in packages." I think they are parenthetical.

it

Mr. NICOLSON. I do not think so.

Mr. FREE. It would not tie up with "unit," and you want to tie up with "unit."

Mr. EDMONDS. All right; that seems to be settled satisfactorily all around.

Mr. CAMPBELL. May I say this about that: Supposing that this has a declaréd valuation. It has reference to freight. You are paying the freight supposedly upon a declared valuation of $500. Why should not there be some relation between the unit and the freight? Your "trade unit" may not be the "freight unit." Take lumber, for instance, what is the trade unit of lumber? Is it feet? People go out and order 500 feet of lumber. Feet is the trade unit, but the freight is paid usually, per thousand.

Mr. ENGLAR. The trade unit is a thousand feet of lumber. Mr. CAMPBELL. Not necessarily. You do not always buy a thousand feet of lumber; you may buy 500 feet.

Mr. CHANDLER. The trade unit in grain is not per quarter; it is per bushel.

Mr. CAMPBELL. Then it does have some relation to it. If you say "freight unit," it is the unit on which freight is paid.

Mr. NICOLSON. Is it not true that lumber is quoted in the trade per thousand feet, ordinarily? That is my understanding.

Mr. EDMONDS. I think the ordinary trade unit is pretty well understood. You would not say the trade unit for coal is per carload; it is per ton. If you go out and sell a ton of coal, you do not say so much per carload; you say so much per ton. The ton is the unit. If you buy wheat, you buy it by the bushel, so much a thousand bushels. It is bought by the bushel and not by the thousand.

Mr. ENGLAR. Coal is sold by the basket, too, but it is not the ordinary trade unit.

Mr. EDMONDS. That is obsolete, except in New York. [Laughter.] Mr. CHANDLER. Grain is booked by the load.

Mr. Scort. I do not think you ought to pass section 4 by as rapidly as you have.

Mr. DRAPER. I was trying to conserve the time of the committee. Mr. SCOTT. I know, but if you have a fundamental objection here, you ought to state it.

Mr. EDMONDS. I think Mr. Draper ought to suggest what he has to say in lieu of it. The Shipping Board and several people have suggested what they want, and now it is up to Mr. Draper, if they do not like that section the way it is, to suggest what they want in place of it.

Mr. DRAPER. Why, we are absolutely in favor of this language, as it is used in your bill, Mr. Edmonds.

Mr. EDMONDS. The language as it appears in the bill?

Mr. DRAPER. The language as it appears, we would like to have remain in the bill.

Mr. SCOTT. Well, let us see whether you want it or not. Do your people want the operator of a ship to take responsibility for any damage that may be done to a cargo if an S O S signal comes in and is answered and, when they reach the place where the ship or trouble

is located, they find it is not in jeopardy at all? That is what a correct interpretation of that language would mean, if I understand it correctly. It says "any deviation in saving or attempting to save life or property in jeopardy at sea." Now, in order to justify that deviation, unless I am wrong in my interpretation of the languagein order to justify a deviation from the regular course, the master of the ship must find the ship in jeopardy in order to avoid liability.

Mr. DRAPER. I think that any court, or any shipper, as far as that is concerned, recognizes, when a master of a ship gets an S O S call at sea, that he assumes, and very justly, that either life or property is in danger somewhere, and it is up to him to get there as fast as he can. We have no desire to stop that at all.

Mr. SCOTT. But my thought is, if the language is retained, I think the suggestion made by Mr. Nicolson, if there is any ambiguity, certainly removes it; but I do not think it is even ambigious. I think it is a certainty, if a master deviates from his course, on his own responsibility, at the risk of his cargo, unless he actually finds life or property in jeopardy when he reaches the point of supposed jeopardy, that the ship is liable. Now, as I understand your illustration a few moments ago, the present situation, under your bill of lading, does not protect you; because, at the present time, if a master sees a fire down off the coast of Jersey, and he sees an opportunity to make a little salvage money, away he goes.

Mr. DRAPER. Surely.

Mr. SCOTT. To the injury of your cargo. That is the present law. Mr. DRAPER. That is just what we want to get away from.

Mr. SCOTT. It seems to me, if you leave it as it is now, you are not getting away from it; but, if you change the law saying "any deviation in saving or attempting to save life or property in jeopardy at sea," to read" any reasonable deviation," that would protect you.

Mr. DRAPER. But we object very strongly to the word "reasonable." My people ship goods all over the world. There is not a market in the world we do not sell stuff in, and lots of it, and we have had that word "reasonable" defined and interpreted in ten thousand different ways. It does not mean anything. And what it means to-day in one country, it does not mean to-morrow.

Mr. SCOTT. I think the courts have all agreed that the word "reasonable" means "reasonable,"

Mr. DRAPER. Reasonable to whom-that is what we are getting at. Mr. SCOTT. Reasonable to any man with common intelligence. Mr. DRAPER. Well, it is reasonable to the master of a ship, or a ship owner, if we put a load on a vessel in New York Harbor, and he tells us the boat is going direct to Hamburg, and he gets out in the middle of the sea somewhere and gets a wireless from the owners "There is a nice cargo waiting for you in Liverpool," or some place else, and telling him to drop in there and pick it up, or to go on down the coast of France, somewhere, and then to go to Hamburg. We have a lot of perishable stuff on board, as I say, and it is probably in the summer time, between steel decks, and he goes sailing around making a profit for himself. That is reasonable to him. Mr. CAMPBELL. The courts held that was not reasonable.

Mr. DRAPER. We had one case in France where the courts held it was reasonable.

Mr. CAMPBELL. You had exactly that case down here in Florida, where a ship put into Tampa; She was on her way from Italy to New Orleans and put into Tampa to get cargo which she was going to take back to Italy, and the courts in this country held it was not a reasonable deviation in that case, and the bill of lading contained as broad a clause as could possibly be drawn.

Mr. DRAPER. I have heard about that case, but that is the courts in this country. On the other hand, the courts in France held the contrary in a case that was somewhat similar.

Mr. WHITE. There is not anything we can do here to bother the courts in France much, one way or the other.

Mr. DRAPER. No; but after all what we are trying to do is to protect ourselves. Now, in the case of France and England, we consign a lot of stuff to ourselves; we have branch houses over there, and we are really sending stuff to ourselves and selling to ourselves over there, and then selling to somebody else. In a case of that sort, we run into the French courts and run into a different interpretation of the word "reasonable" than what is held in this country by the courts here.

Mr. SCOTT. What I am anxious to learn is this: What disadvantage, what additional disadvantage, will section 4, as amended by the suggestion, put you to, in addition to the disadvantages you have under the present law?

Mr. DRAPER. That won't put us under any additional disadvantages, but our position is this: This deviation thing grew up in the days of sailing ships, where the sailing ship went out and nobody knew exactly where it was going to or when it was going to get there, or how it was going to get there. In these days, the ship is just as much under the control of the owners as a railroad train is under the control of the train dispatcher, except in very hard weather, and even then they know all about it. I think the time has arrived in connection with the modern methods of shipping, modern ships, with wireless and everything, where that condition could be changed a little bit.

Mr. SCOTT. In the bill of lading you make, time is almost the essence of the contract, is it not?

Mr. DRAPER. Surely. We sell stuff, if we sell directly in Europe. on a contract that provides it must reach that country before a certain day, or must arrive at some foreign port before a certain day, and a deviation is something that is very serious to us. We have not any objection to anybody saving life or property at sea, or going to the rescue of life or property at sea, but we are trying to get away from having ships sail around to a large number of ports for their own profit, to make money for their owners, at the expense of the goods that are already on board, and that is the purpose of that entire paragraph 4.

Mr. EDMONDS. Mr. Draper, what would be your position in regard to the ship that Mr. Nicolson, I think it was, called our attention to this morning, that was lying at Gibraltar without oil? If you had perishable goods on board, of course, they would have laid there for three weeks, if they did not get the oil. Now, under this section 4, as I read it, of course, they could not make that deviation. I suppose, though, common sense would probably dictate your action

on the matter and you would not say anything if you knew you were going to get your goods two weeks ahead of what you would otherwise get them, if you waited for the oil to come to Gibraltar.

Mr. DRAPER. I would like to know the whole story about that case, because if it was a Shipping Board vessel and they went sailing from some place out of South America to Gibraltar, they knew they were going to need oil, and they ought to know how they were going to get the oil and they ought to make some arranements. If, on the other hand, the vessel that was carrying oil to that point was wrecked, or something, I think it might be taken care of under other sections of this bill.

Mr. BRAND. Could we say in there "exclusive of seeking cargo"? Mr. EDMONDS. You can take the Shipping Board's amendment. Mr. BRAND. Could we say in there "exclusive of seeking cargo and say "any deviation. exclusive of seeking cargo, shall not be deemed an unreasonable deviation"?

Mr. DRAPER. That would not fit, because there is another situation you want to get at. We always refer to a single case, because it illustrates it more clearly, but there are a large number of other cases of a similar nature where we loaded perishable products on the boat at New York. They were supposed to go to Marseille. Our contract called for their delivery at Marseille on a certain day to the buyer in France. They had a small amount of space left in their refrigerator chambers and they went snooping around New York to get something else to put in. They finally got hold of a few barrels of apples. The man who wanted to ship the apples said he had to get those apples down to Greece and had to get them there in an awful hurry, and when he shipped those apples they guaranteed him they would take those apples direct from New York to Greece. They already had our stuff on board. We discovered it too late to get them off, and we could not get them off.

Mr. BRAND. Would not that be a deviation to get cargo?

Mr. DRAPER. Surely. That is what we want to stop. They went sailing into Marseille in the summer time with hundreds of tons of our goods

Mr. BRAND. That was a deviation in order to get cargo?
Mr. WHITE. No; they had the cargo.

Mr. DRAPER. They had the cargo before they departed.

Mr. BRAND. They deviated after they made the contract with you? Mr. DRAPER. They must have made that contract after they made the contract with us, because we are shipping in the Middle West. Mr. BRAND. Now, if you would have this bill of lading

Mr. DRAPER. If we had this bill of lading with this language in here in it, why that would not happen.

Mr. EDMONDS. With the original language, not the amended language, it would not happen.

Mr. BRAND. I was trying to get amended language which covers his case, so that they could deviate for the purpose of answering an SOS cal, or if they wanted to get some oil or something that was a fair deviation.

Mr. EDMONDS. That was a reasonable deviation, where the deviation to Marseille would not be a reasonable deviation.

Mr. BRAND. And if you say "for the purpose of securing cargo,' you would have something to cover your point. I know it is a very important point you are bringing up.

Mr. ENGLAR. Do you think it would expedite the consideration of the bill if every one who wants to speak on this deviation question should do so at this point, or do you prefer to have Mr. Draper finish, and then come back to deviation?

It

Mr. EDMONDS. I think we might as well bring it out right now. is the entire fight in the thing. The balance can be agreed upon, and if you have something to suggest on it I think maybe we can get together on it.

Mr. ENGLAR. That is really the only particular point I should like to be heard on, and if it meets with the committee's views I think we might as well thrash it out while we are on the point.

Mr. EDMONDS. Suppose we let Mr. Englar go ahead for a few minutes if you are through, Mr. Draper, with your comments on the deviation matter.

Mr. DRAPER. Let Mr. Englar go ahead.

Mr. ENGLAR. I do not want to interrupt Mr. Draper.
Mr. DRAPER. It is perfectly all right.

STATEMENT OF MR. D. ROGER ENGLAR, REPRESENTING THE AMERICAN INSTITUTE OF MARINE UNDERWRITERS

Mr. ENGLAR. I am representing the American Institute of Marine Underwriters. The president of the institute is here, Mr. Burke, and the chairman of the committee. Mr. Ogden, and the chairman of the committee considering this bill is also here.

I think this institute includes practically every American insurance company and I think I am authorized to speak for all of them except the Insurance Co. of North America, which is separably represented by Mr. Laws, who is quite able to speak for himself.

The underwriters, of course, do not ship any goods and they do not carry any goods, but they stand right back of the shippers and I will venture to say that for every one case where the shipper has to wrestle with these questions of deviation, the underwriter has 10 cases where they have to do it; because, what usually happens, is that the shipper comes in and dumps the whole difficulty on the underwriter and says, "Give me my money, and then you thresh this out." So that I think the underwriters have probably had more experience with these questions of deviation and similar questions than any one shipper, or any group of shippers.

Now, I am precisely on the same side of this question, and the underwriters are on the same side of this question, as Mr. Draper's clients. We are not representing adverse interests; we are on the same side of this thing. We both are interested in curtailing the excessive liberty of deviation that the carrier has had heretofore That has been one of the greatest abuses, under the present form of bill of lading-this very thing of unlimited deviation. And there is no question about it, that, under the present law, a carrier, if he is clever enough and takes care to draw his bill of lading in the proper form, he can get practically an unlimited power of deviation. It is all a question of how the contract is drawn, because there is