Mr. BLAND. The consignee has 30 days in which to bring his action against the railroad company, and here it is only three days. Mr. NICOLSON. The three days have not anything to do with the bringing of the suit. Mr. BRAND. I mean to give notice. Mr. HAIGHT. A failure to give notice only means that an ocean carrier, having a clean receipt, can offer that in evidence; but if you are going to override it, you must prove that the statement in the clean receipt is not, in fact, true; and there is not the slightest change in this rule, in this law as it stands to-day; but we had to state it in order to get the European countries to the point where they could adopt a code in which the rights were clearly defined. Mr. BRAND. Now, I am the one receiving the goods out in Ohio, and I have not a through bill of lading from the foreign port at all. My goods come to New York, and my agent in New York signs a receipt that the goods are all right. Mr. HAIGHT. Yes. Mr. BRAND. Then he ships them to me out in Ohio, over the railroad. up. Mr. HAIGHT. Yes. Mr. BRAND. And I find they are not all right, when I Mr. HAIGHT. Yes. Mr. BRAND. Then I have a claim against the railroad? open them Mr. BRAND. My agent has signed the receipt that the goods are all right when they were received off the ship. So that I hold this railroad, although I know that the damage was done by water on board the ship. Mr. HAIGHT. Oh, no. If you know the damage was done by water, you can still sue the ocean carrier, and you can not sue the railroad company, if they know it. Mr. BRAND. But I won't have known it until after the three days have expired. Mr. HAIGHT. You have 12 months. It makes no difference. Mr. BRAND. Is that necessary, to do that? Mr. DAVIS. Sometimes the shifting of the burden of proof means he does not enter a lawsuit; that is what it means, sometimes. Mr. EDMONDS. Surely the shipping man is entitled to some protec tion. I do not know whether three days is unreasonable, but he is entitled to some protection, somewhere. Mr. BRAND. Should not it be three days after the receipt of the goods by the person entitled to them? Mr. EDMONDS. Why make the ship liable for something that maybe has happened on the railroad? Mr. LARSEN. The ship would never know when its liability had ceased. Mr. HAIGHT. No, sir. The steamship company only agrees to see it delivered at the seaport. They are not responsible to a person who lives in San Francisco. Mr. DAVIS. I do not think that clause is unreasonable-we are not deciding on any of these things, except it is necessary for us to develop the fact where the delivery is made at the port; but in the case of a shipment, a through shipment on a through bill of lading, involving a shipment over connecting rail and water carriers, there it ought not to apply because the man has nothing on earth to protect him. Here one carrier upon the through bill of lading delivers to the other and, where there is a case of apparent damage, for self protection, the connecting carrier will note the damage, and it will be a matter of record. Then if you go on to him and he is not liable, he can go back to the other party. But suppose it is a case not of apparent damage, but damage that is not noted, because it is not known, and it gets out here, as Mr. Brand says, two or three weeks after the three days has expired: He is deprived, even though he opens the goods immediately and gives immediate written notice. He is in the same position as if he had waited six months. I make that distinction between a connecting shipper on a through bill of lading, and one where it is delivered to the port. I think there is a distinction. Mr. HAIGHT. Of course these rules are intended to cover only ocean transportation, in the nature of things, and the duty of the ocean carrier, in every case, is to deliver at the seaport. If the ocean carrier has delivered at the seaport and the goods have been three weeks in transit by rail, and you then find them damaged, there is no proof that that damage occurred on the part of the steamship company, just because there is damage. If you can prove that the damage did occur on the steamer (for instance, it may be from salt water and then it could not very well have happened on land), you have still got a whole year. Mr. DAVIS. Of course, if you can produce the preponderance of evidence Mr. HAIGHT. Any evidence. But if the steamship company has fulfilled its duty and delivered the goods on shore and, three months later, or three weeks later, they are found damaged, and nobody knows how in the world the damage happened, why pick out the steamship company and say, "We do not know where the damage happened; but, curse it, you will have to pay." Mr. DAVIS. I do not think you ought to pick out either one; I think you ought to pick out the ocean carrier and the rail carrier. Mr. BRAND. The nature of the damage shows you. Mr. CAMPBELL. What chance would the steamship man have to prove the damage occurred on the railroad if it was concealed? The railroad man could prove the damage occurred on board the steamship, because he has the goods in his custody. Mr. DAVIS. You have the same right any connecting carrier does. It is always a question of proof as to where the damage occurred. Mr. CAMPBELL. But it is in the reverse order. You are asking us to prove that concealed damage occurred after the time they left our possession, when the goods were not opened and we had no opportunity to find out, and you are making a prima facie case against the steamship company for the benefit of the railroad company. Mr. DAVIS. Oh, no. Mr. CAMPBELL. Your consignee can sue the railroad, and the railroad company can come back on the steamship company, but why make out a prima facie case, in the first instance, against the steamship company for the benefit of the railroad company? Mr. DAVIS. Oh, no; what I am proposing is a prima facie case against somebody connected with the through shipment. Where it is a matter between them, as it always is in a connecting rail shipment, the consignee or shipper, as the case may be, sues either the company of origin or the company of destination. Mr. LARSEN. Are you not imposing on the steamship company an unreasonable burden? Mr. NICOLSON. If I may offer one suggestion, I think it might clarify the situation. I think the type of bill of lading of which Mr. Davis is thinking, is not the type of bill of lading which, in fact, is used in these foreign shipments on imports, and I would like either Mr. Campbell or Mr. Haight to point out that distinction. Importing, on a so-called through bill of lading, does not mean a through bill of lading in the same sense, I think-and I ask for correction if this is not so-as is meant in the coastwise trade, or railroad trade. Is that so or is that not so? Is it not that it is a single sheet of paper, but with a very clear articulated responsibility, each in favor of itself or against itself? Mr. HAIGHT. The international through bill, as I said a moment ago, is divided up into two or three absolutely distinct contracts, the ocean carrier agreeing only to transport from the delivery port of the first rail carrier to the second connecting rail carrier, but I doubt if there is any real distinction between a through bill from Memphis to New Orleans and New York, and a through bill from Memphis to New Orleans and Liverpool. Mr. CAMPBELL. You have provisions that will cover the rail carriage; you have provisions that will cover the sea carriage. You have provisions covering the rail carriage now? Mr. HAIGHT. Yes. Mr. NICOLSON. In the shipment form Liverpool to New Orleans and then to St. Louis, is the railroad company the agent of the steamship company? Mr. HAIGHT. The railroad company is one of the principals, one of the carriers, independently transporting from the seaport to the interior. He is just as much a separate contractor as the steamship company is. Mr. NICOLSON. That is precisely my point; but on the shipment from St. Louis to San Francisco, on the through railroad bill of lading there is no such separate liability between the connecting lines and the consignee, I think. Mr. HAIGHT. We have statutes which will enable you to sue the final carrier. Mr. CAMPBELL. He means that they do not divide it up. Mr. HAIGHT. They do not divide it up into separate contracts; but each connecting carrier, if he delivers clean, excuses himself, if he can prove that. Mr. CHANDLER. If I may be permitted, Mr. Chairman, in order to clear up that point, I think Mr. Haight is right. The present law allows you to sue the originating carrier, and we are trying to get a law through to sue both; but, so far as the American ship is concerned we have a through bill of lading prescribed for the transportation of freight from the interior of the country to a foreign destination, which is made up of two different sections, one covering the carriage by 30421-251-6 sea and the other the carriage by land. The land carriage part of that bill of lading is somewhat different from the uniform bill of lading used in the domestic shipment. Mr. NICOLSON. Precisely; it is a direct contract between the carrier and the rail shipper, is it not? Mr. CHANDLER. Yes. Mr. BLAND. Now, when you sue the last carrier, what is the presumption as to the delivery of the goods-that they were received from the prior carrier in the same condition in which they are delivered? Mr. CHANDLER. On a through bill of lading, domestic bill of lading, in this country, section 20 of the act to regulate commerce places the entire responsibility on the originating carrier. Mr. BLAND. I know about the originating carrier, but I am taking the converse. Mr. CHANDLER. There is no provision in law at the present time for bringing suit, under the so-called Carmack Act, against the delivering carrier. Mr. BLAND. Oh, you can bring suit against the last carrier. When you do bring suit against the last carrier, what is the presumption? Is there not a presumption that the last carrier delivered the goods in the same condition in which he received them? Mr. CHANDLER. When you bring suit against the last carrier, if you can prove Mr. BLAND. I know that; I am not talking about that. I am talking about the raising of a presumption, when you bring suit against the last carrier, and the carrier comes into court. Is not the presumption that he delivered the goods in the same condition in which he received them, or that he received them in the same condition in which he delivered them? Mr. CHANDLER. I would rather you addressed that to a lawyer. I am not a lawyer. Mr. HAIGHT. I do not think there is any presumption at all. You have to set it out in your defense. Mr. BLAND. I think there is a legal presumption. I have been through it, and I think there is a distinct legal presumption. Mr. ENGLAR. The presumption is, I think, that each carrier received them in the same condition in which he delivered them. Mr. HAIGHT. Until the last man finds them to be bad. Mr. BLAND. My recollection is, from having represented carriers, the presumption is that they were delivered in the same condition in which received. Mr. BURKE. I represent the American Institute of Marine Underwriters. Probably the largest interests affected by the controversy that has been going on here recently is that of the underwriters, on cargo. The underwriters on cargo are satisfied with the clauses as they appear in the bill. They are satisfied with the remedies that the present law gives them already. It is a difficulty they have to deal with every day, and they are satisfied with the method of dealing with it under the present law. This bill assumes to deal with sea carriage. The matter that we are discussing is the matter of land carriage, and is one of the difficulties involved with that stuff with which the underwriters are quite familiar.. Mr. EDMONDS. Gentlemen, it is now 20 minutes to 2, and I am going to suggest that we take a recess until 2.30. (The committee thereupon took a recess until 2.30 o'clock p. m.). AFTER RECESS The committee reconvened pursuant to the taking of the recess, Hon. George W. Edmonds (acting chairman), presiding. Mr. EDMONDS. We were taking up with Mr. Nicolson the changes in the bill suggested by the Shipping Board, and I will ask Mr. Nicolson to go ahead with the next change he has to suggest. STATEMENT OF MR. JOHN NICOLSON-Resumed Mr. NICOLSON. We propose to amend section 8 of the bill, that part of section 8, on page 5, at line 23, and the change proposed is as follows, that line 23 shall be changed to read as follows: * * * for loss or damage to or in connection with the transportation of the goods covered thereby arising from negligence— And so forth. The change in substance made there is this; or, permit me to qualify that; I think perhaps it is not a change in substance, but it is making clear what we think is intend and which, I understand from Mr. Haight, is probably true. As it at present reads, the section is: Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence * * * The question is what is meant by the term "or in connection with goods." What do you mean by "loss or damage in connection with goods?" We know what you mean when you say "loss or damage to goods," but when you say "in connection with goods," we are led astray; at least, it is possible to be led astray. Mr. EDMONDS. I have never known the Shipping Board to be led astray before. [Laughter.] Mr. NICOLSON. We understand that it is intended to cover not only cases of physical damage to goods, but a loss of market through delay in reaching destination. If that is the intent, then it is wise to make it clear by saying, "or in connection with the transportation of. That is the cause of our proposal. Mr. EDMONDS. Cross out the words "goods"? Mr. NICOLSON. No, sir. Mr. EDMONDS. You have to cross out the printed word "goods" to make sense out of it. Mr. SCOTT. Insert the word "transportation" after the word "with." Mr. EDMONDS. "In connection with transportation arising from negligence," and so on, and cut out the word "goods.' there is no controversy on that. Mr. NICOLSON. That clarifies the intent, Mr. Haight? I guess Mr. HAIGHT. Yes; I thought it meant the same thing. I see no reason to object to the change. Mr. EDMONDS. Cross out the word "goods" and put in its place "the transportation of goods covered thereby," line 23, page 5. |