how, and to what extent? Has any study of that kind ever been made? Mr. PARKER. Oh, I believe so, yes, sir; but not by me. Mr. BRIGGS. Not by the Shipping Board? Mr. PARKER. Oh, I think that matter has been very fully covered by the different commissioners and special experts of the Shipping Board that have to do with those problems. Mr. BRIGGS. I mean have they made any detailed study such as could be laid before this committee? Mr. PARKER. Well, Mr. Beecher, the special counsel in Admiralty of the Shipping Board had all this matter before him. He came down here in 1921. He was with the board for over a year at the time he went to the Brussels Conference and he was with the board for a year longer at the time he went to the other. Mr. BRIGGS. I understand that, but what I am speaking about is whether it was incorporated in a definite report. Suppose this committee, for instance, should take some action on this matter and should be called upon in the House to explain what changes are occurring in existing law, whether the scope of this measure is restricting the rights of the United States or enlarging the rights of the United States and what it is and whose rights are being affected and how. Now has there been any study of that kind made? If so, who has made it? Mr. PARKER. I shall have to ask some one else to answer that question. Mr. BRIGGS. Do you know of any study that has been made of that kind by the Shipping Board? Mr. PARKER. Personally, my attention has not yet been called to it, but I have no doubt the study has been made. I can not give you a reference to it, but I have no doubt the study has been made. Mr. ABERNETHY. Mr. Chairman, I do not want to be disrespectful to Judge Parker, or any one else on the committee, but I have some very important matters and it is 12 o'clock, and there seems to be so much hurry to rush this thing through on the part of the proponents that I for one member of the committee want to go into it fully and I want to go into it fully with Judge Parker. I have some very well-defined views after reading the bill, looking at it strictly from the shipper's standpoint, and this is a very eminent attorney we have before us and I want to reserve the right to go into the matter fully with him at such time as will meet his convenience-not with any view to delay, but just to try to get at what we ought to do. I have not seen the reasons for the hurry to pass this legislation. We have been nine years on it and I can not see why we should put it through in a hurry. Mr. FREE. I was going to say we have been nine years on it. Mr. FREE. I know; the gentleman has not been on the committee, but this is one of the first things that came up when I came on the committee. Mr. ABERNETHY. Well, I have to go to school on it, and we might as well start. Mr. FREE. In other words, you want to adjourn to 10.30 to-morrow morning and have Judge Parker here at that time? Mr. ABERNETHY. That is my thought. Here is the situation I would like you to give me your reaction on to-morrow, because this is the thing that struck me right off of the reel. It does not make any difference to me how many conventions or international things they pass on this, I am looking at it purely from the shippers' point of view, and I want you to start on page 7. Of course these are benefits, they say, but they have changed the burden of proof; but I have been a practicing lawyer since 1895 and we have in our State, North Carolina, the law of negligence, and this bill, according to my notion, does away with negligence altogether. Now the proponent of the bill, Mr. Haight, states that that is taken care of by the insurance policy. What I want to know is the Shipping Board were operating vessels and they were not particularly interested in paying claims to the shipper. Now you see the first is "(a)"-these are things exempted. (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the management of the ship. Mr. PARKER. That is the Harter Act, is it not? Mr. ABERNETHY. It does not make any difference what act it is; we are passing on it. It goes back to the Harter Act. It does not make any difference what act that is in, I just want to know. Then there is: (b) Fire, unless caused by the actual fault or privity of the carrier. Mr. PARKER. That is the fire act. Mr. ABERNETHY. That is taken care of by insurance, I assume. Mr. PARKER. That is our existing law, sir. Mr. ABERNETHY. I am not talking about existing law; we are asked now to pass on the bill of lading. Of course, "perils, dangers, and accidents of the sea or other navigable waters," that is, of course, acts of God. Then there is "act of God; act of war; act of public enemies; arrests or restrain of princes, rulers or people or seizure under legal process; quarantine restrictions; act or omission of the shipper or owner of the goods, his agent or representatives; strikes or lock-outs or stoppage, and so forth. I call your attention particularly to the language of our uniform bill of lading in most of the States, that under decisions of our courts, if I remember right, the carrier can not relieve himself of liability for negligence by contract. Now under this language you undertake to write into the law that the carrier of those goods can and does, and then you all go back to the Harter Act as a justification and some treaty made by some foreign countries or The Hague-not The Hague treaty, but some international treaty. Now, that is the thing that stares me in the face, that "(a)" and that is a thing that I want to get. Mr. BLAND. Just there, may I ask a question? Mr. ABERNETHY. Yes. Mr. BLAND. Judge, is it not true that the provision of law to which Mr. Abernethy refers (that the carrier can not exempt himself from liability for negligence) is applicable only to shipments within the United States, or shipments that may be controlled by carriers in the United States, rather than international shipments? Mr. ABERNETHY. Well why should we make a different rule for international shipments than what we have in the United States? Now I want to be absolutely fair, but it looks to me like there has been this agitation for nine years. That is the point I wanted to get to you, the point that strikes me. Somebody has been interested enough to bring all of these agreements about. Now before we get through with this hearing, I want to know who is back of it, why the necessity for it, and why write into the international law of the countries something that the courts, particularly in my jurisdiction, hold that you can not, by contract, relieve yourself from negligence. Now that is the thing that is bothering me. Mr. PARKER. It seems to me that what you have said can be answered this way, that on page 7, section 2 is nothing but a codification of what the existing practice is with reference to bills of lading under the existing law of the United States. Mr. DAVIS. But the point is this, Judge Parker, that we are considering new legislation on this subject and, if the committee sees proper, it can change the Harter Act. And without expressing any opinion pro or con, I assume that is what Mr. Abernethy has in mind, that we are not bound by existing legislation if the committee thinks it sould not be bound by it. Mr. ABERNETHY. The thing, Judge Parker, is this: We, as practicing attorneys, know that when the carrier writes into a bill of lading, in my State particularly, that he is not liable for negligence, that is a void provision. The courts have held that, is not that so? Mr. PARKER. I would think in an ocean bill of lading, also, it would be so, as I understand it, under this particular form of bill of lading, except so far as admitted in the act itself. Mr. ABERNETHY. But why should we put that into that; why should the Shipping Board, which is supposed not only to represent the country, but to represent the interests of all parties-why should we write into the international law something that you say would not be proper to put in a bill of lading in the States by carriers. That is the point I am making. The very first minute I read this act, that is the thing that impressed itself upon me and the thing that I can not figure out why anybody should write it into the law, when our courts have held that you can not write it into a domestic bill of lading. Now I want to go into that because that, I think, is one of the big questions involved in this legislation. Mr. BRIGGS. Judge, that is one of the reasons I was asking you whether any study had been made with reference to differences in the existing law-whether there was any increased limitations or restrictions upon the rights of the respective parties by this proposed legislation and in what respect they proposed to restrict it, how it differed from existing law, so this committee would be fully advised about that matter-not what somebody else thought of it at some conference or something that had that data, but we have to make up our minds with the data before us and when we go before Congress with any recommendation it is essential for us that we should know what restrictions are being imposed, if any, or what enlargement of rights, or anything else of that nature, which is of importance in passing upon legislation of this character, which has such a far-reaching scope. Mr. PARKER. Well, I have here the report of Messrs. Hough and Beecher under date of December 20, 1922, in which they discussed the present law, the proposed Hague Rules in connection with the existing American law, and I would be very glad to let you have this so that you can read it, or would be very glad to have it spread on the minutes. Mr. BRIGGS. I would be very glad to have it incorporated in the record here, if it is illuminating. (After informal discussion:) Mr. PARKER. Now, Mr. Abernethy, this is a pregnant sentence from the report of Messrs. Hough and Beecher on this very matter that you are discussing-that is, the question of negligence. It says this: We also especially note article 4 (1): That is the same number as in the present bill, article 4 (1). Section 4 (1) was formerly article 4 (1) in The Hague rules. They say this, on page 6: We also especially note article 4 (1), which is plainly intended to modify the rule of absolute warranty of initial seaworthiness insisted upon by the Supreme Court of the United States after the passage of the Harter Act. Now that is a very pregnant sentence, and also article 4 (4). Mr. PARKER. That is on page 8. It is intended to change the present legal rule in English-speaking countries that any deviation annuls the contract of carriage. Mr. FREE. How long is that statement? Mr. PARKER. This is a little report here, not more than six or seven pages. I called attention to those two sentences because they were apropos to the questions that have been asked here on the matter of negligence. The Harter Act is this: The shipowner is absolved from any loss to cargo, as stated in this act, on account of the act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship: Provided, however, That if the owner of the vessel or the operator of the vessel has failed to exercise due diligence to make the ship seaworthy at the commencement of the voyage, these exemptions from loss on account of neglect or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship will not be allowed. Do you get that? Mr. ABERNETHY. Yes. I understand; but the point I am making is this regardless of the Harter Act. Now, let us get away from the Harter Act and, of course, there is great reason, since the SupremeCourt of the United States decided as they did-this is the reaction as it comes to me, that we are going rather far, particularly with reference to American vessels. We had quite a contest recently, only last week, in aid of American shipowners. We give them cheap money; we give them mail aid, and we sell them vessels from the Shipping Board, that you gentlemen have, at ridiculously low prices, almost unjustifiable. However, they are essential trade routes. Now this is my reaction. I have never heard this matter discussed before; I was not a member of the committee and that is the reason I am ignorant about it. We have given the shipowners all of these aids. and all of these benefits, now why should we write into the law the Harter Act or language of the Harter Act, or an absolute provision which changes the rule or is more than the privilege the carrier has on land-that he shall be exempted from the negligence or default of the master, mariner, pilot, or the servants? In other words, the only thing under this act he has to do is to make the ship seaworthy and then there is no further liability. Mr. PARKER. That is the law of this country ever since the Harter Act. Mr. ABERNETHY. Why should not we change the Harter Act? Mr. PARKER. Because the Harter Act was a great piece of remedial legislation. Mr. ABERNETHY. I know it remedied to that extent. Mr. PARKER. Well, everybody knows that the carriage of goods at sea is a very much more risky proposition than it is to carry goods on land. Mr. ABERNETHY. That is true. Mr. PARKER. Then, of course, the underlying practices of the commercial public in shipping at sea are entirely different from what they are in shipping on land. For instance, if you ship an article of goods on a railroad, and all that sort of thing, do you take out insurance against loss through carriage of the cargo on the land line? Mr. ABERNETHY. I do not know whether they do or not. Mr. PARKER. You do not bother about it at all. Mr. DAVIS. No, because the carrier is liable for negligence. You do not have to, because he is liable for negligence. Mr. PARKER. He is more than that; he is a guarantor for safe delivery of the stuff. You do not need insurance at all. Mr. DAVIS. Of course, it is predicated upon the theory that they accept goods for shipment and if those goods are damaged in transit, that is the fault of the railroad; either the fault of the servants, or fault of the implements of transportation. It is based upon that. And under no law of any State, so far as I know, can a domestic carrier escape liability by writing it into a bill of lading or an express receipt. Now the point that is bothering us and the point that bothered me when we had the hearings before upon a similar bill, at which time I was a member of this committee, is this: Why should a ship owner be relieved of liability for negligence? Now, it is suggested that that is covered by insurance. Yes. But the shipper has to pay insurance to guard against the negligence of the ship owner. Mr. FREE. Let me put that a little stronger to you. If I get this correctly, the captian of a vessel could take an axe and chop up an automobile and, under this, the owner of the vessel was not liable. Mr. ABERNETHY. That is right. Mr. HAIGHT. Oh, no; that is not an error of navigation. Mr. PARKER. It says "in the navigation or in the management of the ship. Mr. HAIGHT. May I try to answer the question of Mr. Abernethy? Mr. FREE. Let us get this first. Mr. PARKER. Now if the goods are carried at sea, the shipper, from time immemorial, has two sources of expense; he has, first, the freight he pays and, secondly, he had his insurance. That has been. the immemorial practice. Mr. DAVIS. I know. Mr. PARKER. And all laws are made so as to fit the customs of the commercial public and these laws have been made with that view, and that is the purpose of this particular convention, so as to meet the customs and the wishes and the desires of the commercial public. That means not only the operator, but also the shipper, and you have before you both shippers and operators and, of course, it is your duty to take into consideration the wishes and aims of both the operator and shipper and it seems to me that if they all combine in the passage of a law like this, that we ought not to withhold our |