shippers know it, why shouldn't they be made? Do you want to drive us out of the trade, or do you want to keep us in the trade? Mr. WHITE. I am just trying to find out what it means. Mr. CAMPBELL. It illustrates my case exactly.

Mr. FREE. If they contract to go between certain points and to make certain stops, and then they deviate, that is a deviation? Mr. WHITE. Yes.

Mr. FREE. On the other hand, if the shipper ships in a boat and signs a contract that they can call at all ports, it is not a deviation? Mr. WHITE. That is true.

Mr. BRAND. Is not that right?

Mr. BURKE. Yes.

Mr. BRAND. Do you not all agree on that?

Mr. CAMPBELL. He can not sign that kind of a contract.

Mr. HAIGHT. Yes, he can. The only thing is they don't want to sign one kind of a contract and then to have the ship do something else.

Mr. CAMPBELL. Mr. Englar says he wants this broad trading clause taken out of bills of lading.

Mr. ENGLAR. Oh, no.

Mr. CAMPBELL. But the necessities of the trade require it.

Mr. FREE. If your shipper contracts to allow you to do it, you can. Mr. BRAND. Why can not you make that kind of a contract? Mr. WHITE. I supposed you could; I supposed you were trying to stop it?

Mr. HAIGHT. If they agreed specifically to a contract to carry from here to Hamburg, then the omnibus clause is not objectionable, because generally the omnibus clause means a contract to go from here to Hamburg via Plymouth and Cherbourg, which is absolutely unobjectionable, because you know what you are going to do and you insure your goods accordingly.

Mr. WHITE. But you say your omnibus clause is objectionable. Mr. HAIGHT. The omnibus clause on top of the named ports.

Mr. WHITE. But there is nothing in the amendment which Mr. Nicolson proposes, if I sense it, which would prevent the designation of certain ports of call, and then to carry also the omnibus clause. Mr. NICOLSON. If there is, I do not know where it is.

Mr. DRAPER. I will agree with Mr. Campbell. He seemed to think there was some difference of opinion between us. There is not, at all. We are just as anxious as he is that our American steamships should have the right to call in or out of any place they want to go, provided we know in advance and we will contract with them and

agree.

Mr. CAMPBELL. That is all we are asking, because we have to do it in trade, or else we are going to be forced out of some trades. There is no question about that.

Mr. BURKE. I understand the common law provides, when you have the privilege of trading port to port, that it must be in the geographical order. The omnibus clause allows you to trade back and forth, and you might go two or three times to one port.

Mr. CAMPBELL. Supposing that is necessary in order to live in that trade, should you not be allowed to do it; is not that right? You have that situation on the west coast of Africa to-day, because the

volume of cargo there is so small that is the only way you can get cargo, and the shippers know it. That does not affect the big volume of trade to the United Kingdom or German ports.

Mr. BURKE. The little narrow circle of people who commonly trade in that trade-it is known to them; but the occasional producer, for instance, who wants to send something to an African port, and sees a vessel advertised to sail to that port, he has no notion his merchandise is going to be put on that ship and kept traveling, may be for weeks and weeks, up and down the coast.

Mr. CAMPBELL. If he knows anything about his business, he will know what the conditions of the trade are.

Mr. BURKE. If he is in that particular trade, yes.

Mr. CAMPBELL. And if he does not want to ship on a vessel that does that, let him go to some other line that does not do that kind of trading. But give us the right to make such a contract.

Mr. FREE. I think you have got that.

Mr. CAMPBELL. If I was sure I had it, I would be satisfied. We dare not take a chance.

Mr. NICOLSON. Will you point out the specific language which you regard as taking away that right?

Mr. CAMPBELL. Why, I do not understand, Mr. Nicolson, when the bills of lading come out under this law-I think that all the bill of lading will do is to describe the voyage and say, "received for shipment" or or "shipped on board" certain goods described in accordance with this and other requirements. That is about all you will have in your bill of lading, because this statute will control. All you can say is "As per Carriage of Goods by sea Act," or "Edmonds Act," or whatever the name is.

Mr. NICOLSON. Whereas, under the Harter Act, you also put in such a bill of lading a statement that the voyage, say, is " from New York to Constantinople, with privilege in the master to stop at any intermediate ports in either direction.'

Mr. CAMPBELL. To take on cargo for homeward voyages.
Mr. NICOLSON. Yes; put that in, too, if you like.

Mr. CAMPBELL. In any order.

Mr. NICOLSON. No; that is another story. This geographical order I think is a reasonable one which the court would probably enforce.

Mr. CAMPBELL. They would require us to do it in the geographical order you think they will, but you do not know. That is exactly what creates the necessity for its insertion here. It may be a necessity of the trade and we do not dare to take a chance with half a million dollar cargo on board, because we may have a negligent collision subsequently in which we will lose the half million dollar cargo, and then Mr. Underwriter who has paid the loss on that cargo will come on to the shipowner and say "You are liable absolutely as an insurer, because you deviated." Then they have got to go to the courts to find out whether that is a deviation or is not. And the result of it is the shipowner does not dare to take the chance.

I do not believe any of you want to hamper the shipowner in the necessities of his trade in order to survive. That provision in the bill giving some right of contract will not affect the great trade services of the country; it won't affect the Pacific Mail, going

It

trans-Pacific, or the Admiral-Oriental, because they are liner services making certain ports, making them almost on railroad time. won't affect the United Kingdom service; it won't affect the continental services. But it does affect other trades where the necessity of trading exists. That is very largely true in the Mediterranean and to the west coast of South Africa, and down in the South American trades. All I want is something in here that will insure us the right to contract with the shipper, so as to give us the right to go upon this kind of trading voyages.

Mr. FREE. I would like to ask you this question: What does the language mean in line 12, page 8, beginning in line 11-" shall not be deemed to be an infringement of this act or of the contract of carriage?" If that will not permit you to enter into that sort of a contract, you are reading those words as meaningless in the statute. Mr. CAMPBELL. No; because your contract of carriage-you enter into a contract that applies from the time you load the goods until you discharge, and this bill will permit you to put into it only certain things, namely, the leading marks, the number of packages, and the apparent good order and condition of the goods.

Mr. FREE. This paragraph applies strictly to deviation.

Mr. CAMPBELL. I do not think it will permit you to put anything in in the respect to deviation.

Mr. FREE. That is the exception to deviation; it is put in as an exception to what deviation is.

Mr. CAMPBELL. That does not say you shall have the particular right of contract; it says "or of the contract of carriage," and the words "contract of carriage" are words which are defined in the bill itself:

The term "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 documents 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 or similar document of title regulates the relations between a carrier and a holder of the same.

I do not think you can put anything into these bills of lading. Mr. NICOLSON. Certainly you can put a description of the voyage in it. I do not understand you can not put in the bill of lading the voyage to which the bill of lading relates.

Mr. CAMPBELL. But you just said to me a moment ago I could not include in that description of the voyage the right to touch at these ports in any other than the geographical order, did you not?

Mr. NICOLSON. I think that is questionable.

Mr. CAMPBELL. That is questionable; all right, that is the kind of business we have to carry on in certain trades. The shipowner can not take a chance on deviation, the liability is too great.

Mr. NICOLSON. But our minds are together down to that point, namely, you could have a voyage from New York to Constantinople, with the privilege of stopping at any intermediate points in either direction. Are you agreed that you can do that under this act? Mr. CAMPBELL. If I understand the meaning of this language;

yes.

But do you go a step further and say we can put in the bill of lading a provision that we can load at out-bound ports cargo that is homeward bound? Not under this bill, because the courts have

already held that would be an unreasonable deviation; they have already condemned it under quite a broad clause.

Mr. DRAPER. Do you not consider under this language in the Edmonds bill say a vessel is carrying a lot of goods that originate in St. Louis and it is going to sail out of New York; the freight contract we will say, the original freight contract, providing that the vessel was going from New York to Liverpool-under this language do you not consider that vessel could go from New York to Hamburg, and then to Liverpool?

Mr. CAMPBELL. No, sir.

Mr. DRAPER. Would not that meet that?

Mr. CAMPBELL. That is not what this means at all; but if in the original contract of affreightment, made between yourself and a shipowner, we put such a provision in the contract, we might go that way in that geographical order.

Mr. DRAPER. Surely, or go in or out of any port you wanted to, could you not?

Mr. CAMPBELL. Surely, if you sign that kind of a contract.

Mr. DRAPER. That is what I am getting at. We have no objection to your doing it so long as we know where you are going.

Mr. CAMPBELL. Deviation, as Mr. Englar says, is an extremely technical subject and it is an exceedingly vital subject to the shipowners, because it not only renders the shipowner liable for losses. that may result from the deviation itself, but liable for any other loss that happens on the voyage, whether connected with the deviation or not; it makes him absolutely liable as an insurer. You have to have some liberty of contract.

Mr. EDMONDS. I do not know, I may be exceedingly dense, but I think there is nothing but a tempest in a teapot in this thing. In the first place, take the clause suggested by Mr. Nicolson, "or any reasonable deviation." Now, Mr. Nicolson acknowledges you can make a contract to go to Constantinople and stop at all the ports on the way out, and stop at all the ports on the way back again, provided you name the ports, and it would be a reasonable deviation, or would not be a deviation at all; it is just simply provided in the contract.

Mr. NICOLSON. It would not be a reasonable deviation; it would not be a deviation at all.

Mr. EDMONDS. No. The only time where a deviation would occur on that voyage would be where, say, a man would go to Naples and then go around to Genoa, where he found he could get some cargo which he did not know about when he started. That would be a deviation. And then the question of whether or not it would be reasonable would be there. Now, on the other end of the line, you put in a clause here which says:

Any deviation

* * *

agreed upon between the carrier and the shipper at the time cargo space is contracted for *

*

Let us take that same ship that is going over to Constantinople. The meat men come along and contract for some cargo space and he says to them he is going to stop, take the liberty to stop, at all ports on the way over and that he is going to stop at all ports on the way back again, mentioning the ports, and says, we are going to stop at those ports. Now, suppose you have the same thing, you

have a deviation; in both cases of deviation you are going up from Naples to Genoa, to get some cargo. It is a violation of the contract in one case and a violation of law in another case, being a deviation not noted in the contract for carriage. I can not see a particle of difference in them, to my mind; I may be dense, but I think they would both absolutely work out the same way.

Mr. CAMPBELL. If your statement is sound, there is no objection to your leaving the clause you have drawn in your bill.

66

Mr. EDMONDS. I can not see any objection to it. Cut out the words "in jeopardy"; they do not mean anything if you leave them in. Mr. Englar says they do not mean anything if you leave them in, and I think that is true. But here you come down and say contract of carriage," you speak of the "contract of carriage" in line 12, and that removes most of the trouble right away; because you can make a contract of carriage, and the shipper can insist on knowing where the ports are, and if you make a deviation from that, the courts have to decide, in the one case, whether it is a reasonable deviation; and, in the other case, whether it is a deviation. The peculiar thing to me is, Mr. Campbell, for the shipowners, is for my original bill, where I would think it would be more liberal to have Mr. Nicolson's amendment.

Mr. CAMPBELL. I do not think Mr. Nicolson's amendment means anything; those words "reasonable deviation" I do not think add anything to the situation. It does not give the right to contract. Mr. EDMONDS. Is there any one else who desires to be heard for a few minutes?

Mr. PATON. What I have to say is simply to put a resolution, Mr. Chairman, of the bankers association, and it won't take five minutes.

Mr. EDMONDS. All right, go ahead.

STATEMENT OF MR. THOMAS B. PATON, GENERAL COUNSEL OF THE AMERICAN BANKERS ASSOCIATION

Mr. PATON. I am representing the commerce and marine commission of the American Bankers Association, to which has been delegated the consideration of The Hague rules and the conference amendments, and I simply desire to place in the record a resolution adopted by the commission, which is in favor of the principles underlying The Hague rules. It is very short, and I would like to read it:

Resolved, That, believing it most desirable for the furtherance of export trade that carriers the world over shall be governed by uniform rules making possible the working out of standard forms of ocean bills of lading for use in all regular trades, the commerce and marine commission of the American Bankers Association strongly indorses in principle The Hague rules, 1921, which define in improved form the rights and liabilities of cargo owners and shipowners, respectively; and the commission urges that appropriate legislation be enacted by Congress making it lawful to contract for the transportation of property by sea subject to The Hauge rules, 1921, any due and proper interpretation of the said rules being specifically given in such legislation.

Mr. Chairman, I appeared at the hearing two years ago, in February, and what I said then would apply now. The bankers are greatly desirous to have the laws governing bills of lading and the contracts themselves as uniform as possible, and while we do not