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riage in accordance with the provisions of this act, he shall be liable to a fine not exceeding $2,000, to be collected and disposed of in the same manner as provided in section 5 of the act of February 13, 1893.
Sec. 10. This act may be cited as the carriage of goods by sea act.
(The following unofficial translation of a draft of an international convention for the unification of certain rules relating to bills of lading was ordered printed in the record at this point:)
UNOFFICIAL TRANSLATION OF THE DRAFT INTERNATIONAL CONVENTION FOR THE
UNIFICATION OF CERTAIN RULES RELATING TO BILLS OF LADING, AS PASSED BY THE DIPLOMATIC INTERNATIONAL CONFERENCE HELD AT BRUSSELS, 17–26 OCTOBER, 1922.
In this convention the following words are employed with the meanings set out below:
(a) “Carrier” includes the owner or the charterer who enters into a contract of carriage with a shipper.
(6) Contract of carriage” applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including 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 rights of the carrier and of the holder of the bill of lading.
(c) "Goods” includes goods, wares, merchandises, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried.
(d) “Ship” means any vessel used for the carriage of goods by sea.
(e) “Carriage of goods” covers the period from the time when the goods are loaded on to the time they are discharged from the ship.
Subject to the provisions of Article VI under every contract of carriage of goods by sea the carrier, in regard to the loading, handling, stowage, carriage, custody, care, and discharge of such goods shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth.
ARTICLE III.---RESPONSIBILITIES AND LIABILITIES.
1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to-.
(a) Make the ship seaworthy,
(c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation.
2. Subject to the provisions of Article IV the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.
3. After receiving the goods into his charge the carrier or the master or agent of the carrier shall on demand of the shipper issue to the shipper a bill of lading showing amongst other things-
(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage.
(6) Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper.
(c) The apparent order and condition of the goods.
Provided that no carrier, master, or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking:
4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with rule 3 (a), (b), and (c).
5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity, and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages, and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.
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.
In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.
7. After the goods are loaded the bill of lading to be issued by the carrier, master, or agent of the carrier to the shipper shall, if the shipper so demands, be a "shipped” bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods he shall surrender the same as against the issue of the "shipped” bill of lading, but at the option of the carrier such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall, for the purpose of this rule, be deemed to constitute a “shipped” bill of lading.
8. 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, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in this convention shall be null and void and of no effect. A benefit of jnsurance or similar clause shall be deemed to be a clause relieving the carrier from liability.
ARTICLE IV.-RIGHTS AND IMMUNITIES.
1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied and to make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation in accordance with the provisions of paragraph 1 of article 3. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claimang exemption under this section.
2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
(a) 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:
(b) Fire, unless caused by the actual fault or privity of the carrier. (c) Perils, dangers, and accidents of the sea or other navigable waters. (d) Act of God. (e) Act of war. (1) Act of public enemies. (g) Arrest or restraint of princes, rulers, or people, or seizure under legal process. (h) Quarantine restrictions. (i) Act or omission of the shipper or owner of the goods, his agent, or representative.
(j) Strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general.
(k) Riots and civil commotions.
(m) Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality, or vice of the goods.
(n) Insufficiency of packing. (0) Insufficiency or inadequacy of marks. (p) Latent defects not discoverable by due diligence. (9) Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault, or neglect of the shipper, his agents or his servants.
4. Any deviation in saving or attempting to save life or property at sea, or any reasonable deviation shall not be deemed to be an infringement or breach of this convention or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.
5. Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with goods in an amount beyond £100 per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before the goods are shipped and have been inserted in the bill of lading.
This declaration if embodied in the bill of lading shall be prima facie evidence, but shall not be binding or conclusive on the carrier.
By agreement between the carrier, master, or agent of the carrier and the shipper another maximum amount than mentioned in this paragraph may be fixed, provided that such maximum shall not be less than the figure above named.
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.
6. Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly misstated by the shipper in the bill of lading.
7. Goods of an inflammable, explosive, or dangerous nature, to the shipment whereof the carrier, master, or agent of the carrier has not consented with knowledge of their nature and character may at any time before discharge be landed at any place, or destroyed or rendered inócuous by the carrier without compensation to the shipper and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place. or destroyed or rendered inocuous by the carrier without liability on the part of the carrier except to general averahe if any.
A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities under this convention, provided such surrender shall be embodied in the bill of lading issued to the shipper. The provisions of the convention shall not be applicable to charter parties, but if bills of lading are issued in the case of a ship under a charter party they shall comply with the terms of this convention. Nothing in this convention shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average.
ARTICLE VI.-SPECIAL CONDITIONS.
Notwithstanding the provisions of the preceding articles, a carrier, master, or agent of the carrier and a shipper shall in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care, and discharge of the goods carried by sea, provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a nonnegotiable document and shall be marked as such.
Any agreement so entered into shall have full legal effect.
Provided that this article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.
ARTICLE VII.-LIMITATIONS ON THE APPLICATION OF THESE RULES.
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.
ARTICLE VIII. -LIMITATION OF LIABILITY.
The provisions of this convention shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of owners of sea-going vessels.
ARTICLE IX.--APPLICATION OF THE CONVENTION.
The provisions of this convention shall apply to all bills of lading issued in any. of the contracting States.
The CHAIRMAN. If you will give me your attention, I will outline the purpose of the bill as it is viewed by its proponents.
On July 18–20, 1921, the Subcommittee on Marine Insurance of the Committee on the Merchant Marine and Fisheries held hearings on the subject of ocean bills of lading, with particular reference to the problem of theft, pilferage, nondelivery, breakage, and so forth, of export and import shipments. The subject of ocean bills of lading is of vital importance to American shippers, ship operators, marine underwriters, and bankers. All of these interests appeared at the aforementioned hearing, through their accredited representatives, and presented their views fully and frankly. The testimony at this hearing clearly indicated that many American shipping and underwriting interests were totally out of sympathy with the usual forms of bills of lading used in our international trade.
Shortly following this hearing, the so-called The Hague Rules, 1921, relating to bills of lading, were announced. Later, a revision of these rules was announced under the title of The Hague Rules, 1922. On October 9–11, 1922, these rules were amended at the London Conference of the Comité Maritime Internationale, and on October 17-26 were further amended and passed at the Diplomatic International Conference held at Brussels.
H. R. 14166, the bill before us for consideration, is a copy of the rules as adopted at the Brussels Conference. It virtually follows the form in which the rules were announced to us, the language being changed but slightly in order to conform to our legislative usage.
I should call attention, however, to one important printer's error; on page 8, line 12, the ligures “$100” should read “ 100."
Numerous parties vitally interested in the subject, representing both proponents and opponents of the Brussels rules, have requested and urged that a public hearing with respect to these rules be granted by this committee at this particular time. H. R. 14166 was, therefore, introduced by request to serve as a basis for such a hearing, thus giving all interests an opportunity to express their views. I trust that the pros and cons of the rules in question may be thoroughly presented at this time. We want all the enlightment possible on this subject, and I trust that this hearing may serve, should vital differences of opinion arise, to enable conflicting view points to be ironed out to the satisfaction of all who are interested in the welfare of American shipping and foreign trade.
In conducting this hearing, we will first have the supporters of the bill heard; then the opponents of the bill will have an opportunity to present their side. I am willing to devote all the time that is necessary, both day and evening, if necessary, to have this matter fully presented, so that nobody will be delayed here, as I understand a number of people have come from different parts of the country to attend the hearing.
Mr. BLAND. It is not expected to pass the bill at this session is it, Mr. Chairman?
I would answer that probably we might get it through the House, but the Senate is an uncertain body, as everyone knows.
Mr. ROSENBLOOM. In other words, it is a deliberative body.
The CHAIRMAN. It takes the two branches of the legislature to make laws, with the approval of the President. After we do the work of getting legislation ready, then it has to go over to the Senate and they have to pore over it, and I would not like to say that there would be a law passed at this session.
Mr. BLAND). It has to run the gauntlet of senatorial courtesy.
The CHAIRMAN, I have nothing to do with that and do not undertake to, but I try to get along with this IIouse as far as I can. Sometimes, I find trouble over here, but that does not bother me.
I will call Mr. Beecher as the first witness on the bill.
STATEMENT OF MR. NORMAN B. BEECHER, SPECIAL ADMIRALTY
COUNSEL, UNITED STATES SHIPPING BOARD.
Mr. BEECHER. I have been asked to make a statement in regard to this bill, explaining the provisions, and to make some remarks in regard to what was done abroad and what we have put into this bill, and I am speaking entirely in my individual capacity and not as a representative of the Shipping Board, which though very much interested in the subject, desires to have the benefit of this hearing before expressing its official views to the committee.
Before the conferences abroad, to which the chairman has referred, the Shipping Board had hearings at which many of the gentlemen present attended, and had the benefit of much testimony and many suggestions, which were made at that time. It believes it will derive equal benefit from the present hearings, and, later, after considering everything that is presented, it will formulate its own views.
I am also not here to speak as a representative of the State Department, although appointed by the State Department to represent the United States at the conference at Brussels, I signed, together with Judge Hough (the other delegate of the United States) the protocol wherein we agreed, along with the delegates of the 23 other maritime nations, to recommend to our respective governments the putting into effect of the rules there adopted for the carriage of goods by sea. The State Department has as yet not made public the report of the delegates and the result of their action, and has not laid the matter before the Senate. I assume that will be done in due course.
My understanding that all of the diplomatic documents are not yet even in the possession of the State Department. For example, the proces verbal or reporte de conference that was made a part of the protocol which we signed, has, I believe, not as yet arrived from Brussels. I mention that because I observe in some quarters a tendency to criticize the State Department. Although I have not been asked by the State Department to defend it, I think it is only fair to give that explanation.
Now this bill (H. R. 14166), in general, is simply taken from the language of the rules as adopted at Brussels, changing the words and the form, slightly, to conform to an ordinary piece of American legislation.
Just very briefly, for the record, although I imagine every one here is aware of it, these rules are the descendant of the original Hague rules, 1921, which were brought to America more than a year ago and have been the subject of much discussion and controversy ever since. There were a great many objections raised to those original rules, in which the Shipping Board shared and I personally shared and, as a result of the many American criticisms and of the criticisms of a certain group of the British shippers, certain modifications were made which went far to meet the objections that had been raised both here and abroad.
The original Hague rules, as thus modified, were the subject of the hearings which the Shipping Board held on September 20–21 of the past year. There were a great many suggested changes at that hearing. I think the general atmosphere was that of a desire to have such rules internationally adopted, with such amendments suggested as could be obtained; but the general sentiment was it was hoped that the delegates of the United States would not return without any rules whatever.
We endeavored to carry out that policy as thus outlined, and we were successful, first in London, in securing a great many modifications of the rules on points which had been objected to, clearing up difficulties of one sort or another. For example, the prohibition of benefit of insurance clauses which we secured was one which the shippers and possibly the underwriters, even more than the shippers, were extremely anxious to have secured. We also were able to secure some modifications in line with the criticisms of the shipowners.
At Brussels the rules, as thus amended at the meeting of the Comité Maritime Internationale at London, were further considered and some additional modifications made in them. While it is true that all of the suggestions made by everyone interested in the subject were not carried out, it is of course also true that such a thing was not to be expected, and in an international meeting composed of representatives of 24 maritime nations to expect that the delegates of the United States could secure every amendment and have the rules read precisely as they would like was something that was, of course, impossible. We feel, however, that we were successful to a very considerable extent, and as a result, as I said before, the delegates of the United States, along with the delegates of all the other 23 nations, signed an agreement to recommend to their Governments the putting into effect of these rules.
Returning to the bill that has been introduced for that purpose, the first point I call attention to is on page 1, paragraph (b) of section 1. That paragraph provides that a
'contract of carriage,'' as used in the act, shall apply to a bill of lading issued under a charter party from the moment at which such bill of lading governs the rights of the carrier and the holder of the bill of lading.