Mr. DAVIS. You can take it that way if you want to, but this provision permits any sort of deviation by agreement from the general form of the bill of lading provided in this act.

Mr. CAMPBELL. No. You go too far in that.

Mr. DAVIS. That is the purpose of it and will be the effect of it. Mr. CAMPBELL. No. This bill largely pertains to bills of lading, but in a case where no bill of lading is issued, it provides that a private carrier status can be established.

Mr. ABERNETHY. Why should there be a bill of lading of that kind? If you are going to have a uniform bill of lading, why should there be another form where a bill of lading is not issued?

Mr. CAMPBELL. As in the case of the coconut oil, there may be a shipment of such a character that the shipowner will not take it subject to the liability as a common carrier because of the dangerous character of the cargo, but would take it as a private carrier if it could be taken under certain limited risks.

Mr. PARKER. Take the ice clause in the North Sea and the Baltic Sea, used by the McCormick people. They are very stringent against the shipper. But, of course, that is a peculiar trade with peculiar risks. The clauses are to the effect that if the vessel is detained by ice, that the owner of the vessel and the vessel may have all kinds of privileges with reference to diverting the cargo, and so forth.

Mr. ABERNETHY. But if we are going to make a uniform bill of lading, why should we not write it in the law rather than leave it to the shipper and the carrier to put it on the margin, one side or the other? That seems to be the thing?

Mr. CAMPBELL. This would not apply to the bill of lading. This says where no bill of lading is issued.

Mr. ABERNETHY. If we are going to have a uniform bill of lading, why not require it in all instances?

Mr. PARKER. Is not the object of this law to say that if a shipment is made by a bill of lading, then it must be uniform and must comply with the act, but if the shipment is intended to be made in any other way, then it must be made by special agreement.

Mr. ABERNETHY. What is the use of having a bill of lading, uniform bills of lading, if you are not going to have the language so worded? A railroad can not ship except by bills of lading. Mr. CAMPBELL. A railroad is only a common carrier.

a private carrier. You can not use a charter.

It never is

Mr. PARKER. I think you are right. I think Mr. Haight yesterday emphasized, and Mr. Campbell will also emphasize that the practice of carriage by sea is entirely different than it is by land.

Mr. DAVIS. Let us take up this bill of lading and compare the actual changes in the law. On top of page 3, section 3, it says: The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to

(a) Make the ship seaworthy.

The language used in the Harter Act is to make the ship in all respects seaworthy. The words, in all respects, are omitted. The language of the Harter Act is changed so as to get away from the interpretation of the Harter Act by the Supreme Court to the effect that the seaworthiness of the vessel is warranted by the owner, is it not?

Mr. CAMPBELL. I do not think that is any different than the Harter Act to-day. Look at section 2 of the Harter Act.

Mr. DAVIS (reading):

That it shall not be lawful for any vessel transporting merchandise or property from or between ports of the United States of America and foreign ports, her owner, master, agent, or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligations of the owner or owners of said vessel to exercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided. . Mr. CAMPBELL. This act does not do any more than that. Mr. DAVIS. Why change it then?

Mr. CAMPBELL. I was not the draftsman at the Brussels convention at the time this particular form was adopted. I suppose that this particular draft was a compromise of many drafts that were brought forward by those representatives of the different nations who were gathered in the convention, and they happened to use this language, and the effect of it is to create substantially the same state of law that we have in the Harter Act. For instance, every bill of lading to-day contains this provision, that if the owner exercises due diligence to make his vessel seaworthy he shall not be liable for loss resulting from unseaworthiness, and that provision has been held lawful. The owner is only required to exercise due diligence, and that is what this requires him to do. I do not think it makes any difference to say, 'seaworthy in all respects."

Mr. DAVIS. You are familiar with the interpretation of the Supreme Court?

Mr. CAMPBELL. I do not recall all the decisions offhand.
Mr. DAVIS. I think this undoubtedly changes it.

Mr. CAMPBELL. I doubt that.

Mr. DAVIS. If it does not change it, why undertake to reframe it? Mr. CAMPBELL. Because we want uniformity. That is the principal reason why. There must be giving and taking in these drafts in order to obtain uniformity just as there must be between Mr. Draper and myself in trying to agree on something.

Mr. DAVIS. You keep referring to Mr. Draper, one shipper out of hundreds of thousands of them.

Mr. CAMPBELL. No; they represent the National Traffic League, which is a great big national organization and represents the greatest shippers in America.

Mr. DAVIS. There was no representative of the shippers at either London or the Brussels conference in which they adopted this so-called code, was there?

Mr. CAMPBELL. Not as representative of the shippers. That was a diplomatic conference in which the delegates represented the nations.

Mr. DAVIS. Shipowners, underwriters, and bankers were represented.

Mr. CAMPBELL. They were not represented there.

Mr. DAVIS. Even the banker was not represented?

Mr. CAMPBELL. No.

Mr. DAVIS. I thought maybe they were.

Mr. CAMPBELL. No, sir. That was a diplomatic conference.

Mr. DAVIS. We members are representing the public, and it is up to us to see whether or not these provisions are fair.

Mr. CAMPBELL. Surely. That is right. But that conference was a diplomatic conference, and the Secretary of State appointed Judge Hough, who was then, I believe, the presiding judge of the Circuit Court of Appeals, and certainly as disinterested a man as you could find, and as able a man as you could find, as any man in America, to go to that conference, who had dealt with years of litigation. He had with him Mr. Norman Beecher, an experienced admiralty lawyer at that time, as counsel to the Shipping Board representing the Government.

Mr. BRIGGS. Are you opposed to any legislation of this kind?
Mr. CAMPBELL. No.

Mr. DAVIS. You favor it?

Mr. CAMPBELL. I favor it. It is not as I would like to write it myself for the ship owners but I favor the bill.

Mr. BRIGGS. Why has it been nine years getting this proposition anywhere if it is such a meritorious one? Why have not all the shippers of the United States risen up in their might and come forward with an insistent demand upon Congress to adopt legislation or the Senate to ratify a treaty which has been pending there so long, since about 1925?

So.

Mr. CAMPBELL. I can not answer why the shippers have not done I can speak for myself, representing the American Steamship Owners Association during all those years, and it is this, that I think the ship owners are giving up far more than they are getting under the bill and it was not to our interest at present.

Mr. BRIGGS. Why do not the shippers realize that? If they are getting so many concessions under this bill and it is such a meritorious thing for them, and that it is just in a sort of altruism that the whole thing is offered? They have been spending money for nine long years trying it out and the shippers do not seem to know it is favored. How do you account for its hanging fire like that?

Mr. CAMPBELL. I do not know. We had long hearings here, and why was it not put through in the days that Mr. Edmonds was so active on the committee.

Mr. BRIGGS. That is what I am wondering. Was it not manifest that it was not quite so much in the interest of the people as it might seem or as it would seem to some?

Mr. CAMPBELL. I do not know. I never heard that suggestion. Frankly, I think the National Traffic League have been standing in their own light. I think they have laid stress upon really unimportant provisions of this bill that they could very easily have waived, or upon which we ought to have been able to reach a compromise provision which would not have hurt that line of business as carried on to-day, and I think from the broader point of view, if I had been in their position I would long since have pressed that and tried to get it through, but I represent a shipowners' association and seeing that the shipowners were giving away more than they were getting under the legislation, certainly it has not been up to me to press it.

Mr. BRIGGS. I have not gotten it into my head where they are giving away more than they are getting. It strikes me they are getting very much more than they are giving away.

Mr. CAMPBELL. I do not think so.

Mr. BRIGGS. It seems to me the only thing that is being left to the shipper to a very large extent in this matter is recourse on insurance policies but not to any liability against the shipowners.

Mr. CAMPBELL. I do not think that is so.

Mr. BRIGGS. To increase the liability to $500 on packages does not seem to me to be a very magnificent thing in exchange for the modification of the holding of the Supreme Court of the United States that the shipowner is the insurer of the seaworthiness of his vessel against inherent defects within the machinery or any other phase of the ship. This limits that.

Mr. CAMPBELL. This does not change that.

Mr. BRIGGS. Mr. Haight's testimony is absolutely on that, they have to exercise due diligence, but the Supreme Court says now under their decision that they are insurers. There is not any question of exercising due diligence to see whether the machinery is all right, but we want to be sure about that.

Mr. CAMPBELL. No, the courts have upheld a provision in the bill of lading, the effect of which provides substantially as follows, if the shipowner exercises due diligence to make his vessel seaworthy he shall not be liable for loss resulting from unseaworthiness.

Mr. BRIGGS. Are you familiar with the case where it was held in defects in the shaft or machinery, that they can not escape because they have exercised due diligence to determine whether the shaft was all right or not?

Mr. CAMPBELL. I do not remember that particular case. If the bill of lading itself does not contain this clause, then the shipowner is absolutely liable as insurer for the seaworthiness, and by virtue of the provisions of the Harter Act he may protect against unseaworthiness dangers, upon the exercise of due diligence to make the vessel seaworthy.

Mr. PARKER. That is borne out by the decision of the Supreme Court in the Carib Prince case (170 U. S., p. 655), that had to do with some sort of leakage from the tanks.

Mr. CAMPBELL. That case was decided against the shipowner because the Harter Act had itself reduced the responsibilities of the shipowner as an insurer for seaworthiness, to the responsibility of exercising only due diligence in making the vessel seaworthy. The Supreme Court said that the Harter Act had not made that change unless it was contracted for, but they did say in that decision that if the bill of lading did not contractually provide to the effect that due diligence was exercised, then you should not be liable.

Mr. BRIGGS. In other words, the holding of the Supreme Court of the United States is practically swept aside by just incorporating this provision with the bill of lading, which, of course, would be very readily done and immediately be done by every company affected, so that the United States Supreme Court decision really is not worth referring to, and Mr. Haight was just taking up the time of this committee to discuss it so exhaustively the other day.

Mr. CAMPBELL. I will pass no opinion on Mr. Haight. Mr. BRIGGS. He is a recognized authority in admiralty law. Mr. CAMPBELL. Yes; he is a very excellent admiralty lawyer. Mr. BRIGGS. He represents many insurance companies, underwriters, and others.

Mr. CAMPBELL. I do not know about that.

Mr. BRIGGS. He testified so. There is no question about that. He is very frank about that in his reference to these matters to this committee, and he would not be stressing things like that and indicating that this bill does relieve to a very large extent the shipowners from liability under the holding of the Supreme Court of the United States, urging that the shippers got so many other things in return that it was well worth the exchange.

Mr. PARKER. Let me refer the committee also to this citation which I find here: "The common carrier can relieve itself of warranty of seaworthiness only by compliance with the Harter Act, sections 194 and 195 of this title.'

That is the case of G. R. Crowe. (287 Federal, 426, and 294 Federal, 506, and 204 U. S., 186.) That decision bears out what Mr. Campbell says, as in the analysis of the Crowe case which he also cites.

Mr. BRIGGS. Do you disagree with the conclusion and the testimoney on that subject that Mr. Haight gave before the committee yesterday?

Mr. PARKER. No, sir; I think this act does change the Harter Act in that the ship owner and carrier is relieved from this warranty of due diligence, warranty of seaworthiness, provided that he exercises due diligence to make the vessel seaworthy at the inception of the voyage, even though there is nothing in the bill of lading which is issued that makes a contract that such should be his relief.

Mr. BRIGGS. Do you think that ought to be done? Do you think that the lessening of the provisions for warranty of seaworthiness ought to appeal to the Congress of the United States?

Mr. PARKER. Yes. I think that is a perfectly reasonable thing to do. In fact, it is shown by the argument in the Crowe case that most of the admiralty bar, most of the lawyers, believed that of the Harter Act at the time that case was decided.

Mr. BRIGGS. In other words, you think that Congress had in mind. that instead of making the ships more seaworthy we ought to provide that they would be less seaworthy.

Mr. CAMPBELL. That does not follow.

Mr. BRIGGS. I asked the question of Mr. Parker.

Mr. PARKER. I do not agree with that statement; no, sir.

Mr. DAVIS. I will resume my inquiry, if I may, in order to show some other changes that this bill makes in the general act. Subsection 2 of section 3 on page 3 of the bill provides as follows:

The carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

Now, the Harter Act provides to carefully handle and stow cargo and to care for and properly "deliver" the same. The word "deliver" is changed to “discharge." Of course, delivery means delivery to the consignee or the agent there to receive it, and discharge would be to merely discharge a cargo to the wharf.

Mr. CAMPBELL. I can tell you why that change is made. This bill only applies from the time the goods are loaded on to the ship until they are discharged on shore. The Harter Act will still apply from the time of discharge to delivery. The Harter Act applies all the time to the time of delivery. This only applies from the time of loading to the time of discharge, leaving the Harter Act to fill in the remainder of the time.