II. Article 1 (b) defines the phrase "contract of carriage." The form of 1922 included within the definition of "contract of carriage": "Any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading governs the relations between the carrier and the holder of the bill of lading." The Sous Commission after discussion (Proces verbaux, p. 41) substituted the following language: "Any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same." The language of the Sous Commission has been carried verbatim into the British statute. The change noted is formal only. III. Article 2 regulating the risks assumed by the carrier reads in the form put forth in 1922, to the effect that the carrier shall be subject to certain 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 Anglo-American statutory draftsmanship. IV. Article 3, subdivision 6, in the form of 1922, declares: "6. 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: "(6) 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 the 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 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 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 1922, 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.' The Sous Commission inserted the words hereinafter italicized, so as to 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 Proces-Verbaux 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 technicality into what may be and probably often would be a very informal document. For instance, a wharf receipt of a very informal kind might be 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. Article 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, viz: "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 article 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, viz, 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, viz, 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. To-day, 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 that: "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 responsibilities and obligations under this convention, provided such surrender or increase shall be embodied în the bill of lading issued to the shipper.” 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, read 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 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 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 socalled 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. Dated September 29, 1924. Mr. EDMONDS (continuing). Along with that, if the gentlemen desire, I have a letter here from the Chamber of Commerce of New York indorsing the bill and expressing the hope we will pass it at this session. They do not offer any amendments at all. They say they think it is a compromise measure and ought to be passed. The Merchants' Association of New York will be represented here and the steamship owners will be represented. I also have a letter from Doctor Huebner, stating he was in the Southwest and could not come here to-day, and saying he regretted exceedingly he could not attend. He says: It is my sincere hope that something be accomplished this year with respect to the adoption of a decent set of rules governing the carriage of goods by sea. My understanding is that the new bill is similar to the Edmonds bill of last year. If that is the case, I strongly support its approval by your committee. As a matter of fact, this last bill was prepared in Philadelphia by Doctor Huebner and myself, and taking in the latest suggestions we got from anybody that we thought were valid, and also the act of the English Parliament. I will put that in the record. (The letters submitted for the record by Mr. Edmonds are as follows :) Hon. GEORGE W. EDMONDS, CHAMBER OF COMMERCE OF THE STATE OF NEW YORK, Commitee on the Merchant Marine and Fisheries, House of Representatives, Washington, D. C. DEAR SIR: The notice of a public hearing, which you have been so courteous as to cause to be sent to the Chamber of Commerce of the State of New York on H. R. 11447, relating to the Carriage of Goods by Sea, comes at a time and on short notice when it may not be possible to arrange to send a representative of the chamber to address the committee on this proposed legislation. Failing such an appearance in person, perhaps you will receive this brief statement and permit it to be read on that occasion. The Chamber of Commerce of the State of New York by formal resolution at a regular meeting, April 6, 1922 recommended the adoption of the code drawn to define the risks to be assumed by ocean carriers under a bill of lading, commonly known as The Hague Rules 1921, and urged the passage of appropriate and necessary legislation by the United States. A copy of that resolution and the report accompanying is attached hereto. A very active discussion of this code by shipowning and cargo interests everywhere culminated in the diplomatic conference at Brussels in October, 1922, attended by representatives of 24 maritime nations, among whom were delegates from the United States. The conference, basing its action on The Hague Rules 1921, reached an agreement, an signed a protocol, the so-called Hague Rules of present form, which will become an international convention upon ratification by the Governments of the signatories. This convention will codify and unify the dissimilar laws and practices of the world's maritime states, and will establish a recognized code of conditions common to ocean bills of lading. The legislation proposed by H. R. 11447 is substantially the adoption of the Brussels convention, with such provisions as are necessary to bring them into harmonious action with existing laws of the United States. The convention has been adopted by some other countries and doubtless will be by all as action made imperative by the expansion and growing complexity of international commerce. Committees of the Chamber of Commerce of the State of New York have given exhaustive study to the whole subject, not new but one of anxiety for many years, and will unanimously recommend to the chamber at its next regular meeting, February 6, action urging the adoption of this code of rules, and the passage by the Congress of the United States of the legislation proposed by H. R. 11447. The hope is expressed that the honorable members of the Committee on the Merchant Marine and Fisheries will favorably report the bill now under consideration, H. R. 11447, to the House of Representatives. Very respectfully, HOWARD AYRES, Chairman Committee on Foreign Commerce and the Revenue Laws. CHAMBER OF COMMERCE OF THE STATE OF NEW YORK At the regular monthly meeting of the Chamber of Commerce of the State of New York, held April 6, 1922, the following report and resolution, submitted by its Committee on Foreign Commerce and the Revenue Laws, were unanimously adopted. HAGUE RULES REGARDING OCEAN BILLS OF LADING INDORSED To the Chamber of Commerce: Foreign commerce has long suffered from the lack of a uniform international ocean bill of lading which would extend the liabilities of ocean carriers. The result was that the various interests involved, in this and other countries, after numerous conferences, have drawn up and adopted what are known as The Hague Rules, 1921. These rules define the rights and liabilities of cargo owners and shipowners in new and improved from, and give to the foreign merchant protection upon a number of matters to which he has long considered himself entitled. In addition, The Hague Rules, by placing greater responsibility upon the carrier, will lead to greater care by shipowners in handling cargoes that losses may be prevented. By The Hague Rules, 1921, the carrier's liability for loss or damage is increased from $100 to £100, and the carrier is not authorized to prorate the losses. The time within which claims for loss or damage can be filed is materially lengthened. In cases of loss, the burden of proof is placed upon the carrier to show that the loss did not occur while the goods were in his charge. Your Committee on Foreign Commerce and the Revenue Laws believes that the adoption in this country of The Hague Rules is a move in the right direction and will confer very real benefit to the foreign trade of the United States. Such adoption will also make for uniformity of commercial documents, which is much to be desired, especially in international commerce. At present, American ocean bills of lading are subject to the Harter Act and the Pomerene Act. But Congress should pass enabling legislation which will permit American ocean carriers to make contracts in accordance with the provisions of The Hague Rules, 1921. Your committee, however, believes that existing Federal laws should be revised, as soon as practical, to bring them into conformity with The Hague Rules. The following resolution is offered for your adoption: Resolved, That the Chamber of Commerce of the State of New York recommends the adoption of The Hague Rules, 1921, by steamship companies, and the passage of enabling legislation by the Federal Government to make this possible, to be followed by a general revision of existing laws affecting ocean bills of lading to bring them into conformity with The Hague Rules. Respectfully submitted. WILLIAM E. PECK (Chairman), WILLIAM H. DOUGLAS, Attest: EDWIN J. GILLIES, HOWARD AYRES, MAX EISMAN, Committee on Foreign Commerce and the Revenue Laws. DARWIN P. KINGSLEY, NEW YORK, April 7, 1922. President. CHARLES T. GWYNNE, Secretary. Mr. N. S. RICE, UNIVERSITY OF PENNSYLVANIA, Acting clerk Committee on the Merchant Marine and Fisheries, House Office Building, Washington, D. C. MY DEAR SIR: This is to acknowledge your favor of January 23, informing me that the Merchant Marine and Fisheries Committee will hold a public hearing on H. R. 11447 next Wednesday morning, January 28, at 10.30 o'clock. My interest in the bill is a real one, and I regret exceedingly that I shall not be able to attend and to testify. I am leaving to-morrow for the Southwest and shall be on a lecture tour for a period of two weeks. It is my sincere hope that something be accomplished this year with respect to the adoption of a decent set of rules governing the carriage of goods by sea. My understanding is that the new bill is similar to the Edmonds bill of last year. If that is the case, I strongly support its approval by your committee. Sincerely yours, S. S. HUEBner. Mr. EDMONDS (continuing). Now, Mr. Haight, have you anything more? Mr. HAIGHT. I have only one thing more. I was told two weeks ago it would be quite useless to bother you gentlemen with a hearing, or for any of us to make any effort, on the theory that we could not get anything done at this last part of the short session. I think if you gentlemen will report this bill out there is every reason to hope that it will be given a preferred status on the calendar and that we can pass it. There is one amendment of substance and one or two of form, but I am not going to talk about amendments now. Mr. CAMPBELL. May I ask a question? Mr. Haight, the American shipowners have been laboring for many years under the burdens of the Harter Act which you admit have been very much greater than the burdens upon the English shipowners with whom we have had to compete, because they have had a freedom of contract that the American shipowners have not enjoyed? Now you have stated this bill is going vastly to increase the burdens upon the shipowners. It is true it will increase the burdens upon the British shipowners, but you also are now going to increase the burdens upon the American shipowners although perhaps you place the British shipowners upon a parity with us. Now I should like to have you tell the committee and to point out whether there is anything in this bill of advantage to the shipowners. Are the shipowners getting anything out of it at all? Supposedly, Congress and the American Government are |