Mr. Laws. I represent the Insurance Co. of North America, who are generally in favor of this bill, but is a kicker on one or two provisions that we would still like to kick about. [Laughter.]

Mr. EDMONDS. That is a good habit that they have nowadays. Mr. NICOLSON. I would like to introduce Mr. Boal, of the admiralty division, for the purpose of speaking generally on the bill. Mr. EDMONDS. You want Mr. Boal to speak generally on the bill and then you are going to follow him with your amendments?

Mr. NICOLSON. Yes; with my amendments. I have asked Mr. Boal to address himself to one amendment, which relates to deviation, which is the one which he specially wishes to speak upon.

Mr. EDMONDS. We were in hopes we would not hear from that at all to-day.

STATEMENT OF MR. ARTHUR M. BOAL, ADMIRALTY DIVISION, UNITED STATES SHIPPING BOARD

Mr. BOAL. The Shipping Board has in effect now a bill of lading which complies with these rules, which we must use in shipments out of the United Kingdom and Great Britain. On one or two things there is a conflict between these rules and the Harter Act, and, as the Harter Act applies to shipments into this country, we are at a loss to know just what to do about those.

We also have various bills of lading in various trades and those can be simplified under this proposed act. I could not say very much about the bill without repeating what Mr. Haight has already told

you.

There is only one objection that I have to the bill as it stands, and that is on page 8, section 4, the so-called deviation clause. The first part of that clause reads:

Any deviation in saving or attempting to save life or property in jeopardy at sea, or any deviation agreed upon between the carrier and the shipper at the time cargo space is contracted for shall not be deemed to be an infringement or breach of this act or of the contract of carriage * * *

Now, I think the insertion of the words "in jeopardy" will limit that unreasonably; that, if a master of a ship gets an SOS call and he deviates to rescue that property and it is not in fact in jeopardy, the carrier should not be liable for that deviation. If he actually deviates for the purpose of saving property at sea, I think the carrier should be relieved from liability. The provision in the Harter Act has not the words "in jeopardy" in there.

Mr. DRAPER. Might I ask a question? Would the Shipping Board be willing to put in there some words that would mean "believed to be in jeopardy at sea," or believed by the master of the ship to be in jeopardy at sea?

Mr. BOAL. I think that is what the provision would mean without the words "in jeopardy." If he deviates for the purpose of saving property, he has got to think it is in jeopardy.

Mr. DRAPER. Would the Shipping Board have any objection to putting that in, if the shippers desire?

Mr. WHITE. Do they not have to answer an SOS call?

Mr. BOAL. They have got to answer it.

Mr. WHITE. And they do not know. The only thought they have in mind about it is that they have gotten an S OS.

Mr. BOAL. That is all they know about it.

Mr. LARSEN. Why would not the insertion of the word "apparently" after the word "property" cover that?

Mr. EDMONDS. How would it do to leave that go now and let you call attention to it in your testimony, Mr. Draper.

Mr. DRAPER. Surely.

Mr. BOAL. You see the deviation starts the minute he deviates from his voyage to go to the assistance of this other property. All he knows is the fact that he has gotten an SOS call and he should not incur any risk in responding to that S O S call.

Mr. ENGLAR. Mr. Boal, has the Shipping Board any objection to the deviation clause as it appears in the report of the subcommittee of 1923, which is also the form in which it appears in the English bill? Mr. BOAL. None.

Mr. ENGLAR. No objection to it?

Mr. BOAL. It has no objection to it.

Mr. EDMONDS. You mean in The Hague report of 1923?

Mr. ENGLAR. Yes, sir; the report of the subcommittee in 1923. Mr. EDMONDS. You mean the international subcommittee? Mr. ENGLAR. Yes; which is the form adopted in the English bill. Mr. BLAND. If that is not too long, it seems to me it would be very good to put it in right there.

Mr. NICOLSON. Mr. Boal will do that right now.

Mr. BOAL. The provision, as it appeared in the 1923 convention and as it appears in the British act, is as follows:

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

It should be "act" here.

* * * or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.

Mr. NICOLSON. Now that is the form, Mr. Chairman, which the Shipping Board has approved, as has just been read by Mr. Boal. It is the form adopted by the 1923 convention and it is the form which is in the British act.

Mr. SCOTT. Is not the truth of the situation this, that the only difference between the proviso that you suggest and the proviso carried in the bill is contained in the words "in jeopardy"? In other words, if the master deviates from his course, he must find the lives or property to have actually been in jeopardy, in order to justify an evasion of his liability?

Mr. BOAL. There is more than that in the bill.

Mr. SCOTT. Is not that the meat of the whole thing?
Mr. BOAL. No; there is a great deal more than that.

Mr. SCOTT. That is what I want to get at.

Mr. BOAL. That only takes care of part of this clause. As it reads now, it says any deviation agreed upon between the carrier and the shipper at the time the cargo space is contracted for, shall not be deemed an infringement or breach of this act, or of the contract of carriage. Now the British act has "any reasonable deviation shall not be deemed an infringement." I am afraid that the provision, as it stands now, will still further confuse a much confused subject. The law of deviation is far from satisfactory at the present time. A deviation means a departure from the voyage the ship has agreed to

perform and which subjects the cargo to a risk which the shipper did not agree that it might be subjected to; but, if it is agreed upon, it is not a deviation.

Mr. WHITE. Is not that entirely surplusage in here-this language about any deviation agreed upon between the carrier and the shipper? Mr. NICOLSON. If it is agreed upon, it is not a deviation.

Mr. WHITE. If it is agreed upon it is not a deviation, and why carry it in there at all?

Mr. NICOLSON. That is why we have stricken it out.

Mr. BOAL. I think it would be unfortunate to put it in, because it will confuse the law of deviation.

Mr. EDMONDS. I think it goes further than a deviation agreed upon. It might occur during the voyage that the master might wireless and say to a certain shipper, where he had agreed not to deviate, if he saw an opportunity to get some cargo, Would you object if I stop at such and such a place and carry some goods," and he might get a wire back "No; we have not objection". I think it goes further than that; I think it means that an agreed upon deviation would mean a shipper who had his goods in jeopardy would agree that they would go to some other port and get some cargo, and move along maybe agree by wireless.

Mr. BOAL. I think anything they agreed upon would not be a deviation.

Mr. EDMONDS. Anything agreed upon at the time of making the bill of lading, but there might be a change in that; it might be that the agent of the shipowner in the country would go to the shipper and say to him "Now, listen; we have a chance to get 500 tons of cargo at a port only 200 miles away, on our way around there; can we get that; will you give us a letter stating you do not care," and he will and they will go haead and do it.

Mr. BOAL. That will be a modification of the contract of carriage. Mr. DRAPER. Usually the vessel carries goods of a large number of shippers, hundreds of shippers, and it would be almost impossible for the steamship company to get permission from all those shippers.

Mr. EDMONDS. But you have to recollect this, if you take the convention of the Soo committee over there, if you will take the results from them, they allow reasonable deviation, and nobody knows what a reasonable deviation is.

Mr. SCOTT. That is an important item in connection with the amendment. I understand Mr. Boal to prefer the word reasonable" as a clarification of what he assumes to be uncertain language in connection with this paragraph.

Mr. BOAL. Yes; I do.

Mr. SCOTT. The word "reasonable," it seems to me, so far as its judicial interpretation is concerned, covers a multitude of possibilities.

Mr. WHITE. You have to apply the judicial interpretation to that? Mr. EDMONDS. Mr. Boal is advocating cutting out a couple of lines here and putting in the words "a reasonable deviation" is allowable, and that is where the whole controversy comes in this whole thing. Mr. LARSEN. In putting that in there you are certainly leaving it to the courts to determine what is a reasonable deviation. Mr. EDMONDS. That is it, exactly.

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Mr. LARSEN. Whereas if you leave it as it is it looks to me like it is an invitation to the carriers to try to limit their liability and put in all kinds of clauses and force the shippers to agree to it.

Mr. BRAND. Does it not mean there can not be any deviation unless the shippers agree to it?

Mr. WHITE. You know what it means as well as I do.

Mr. BRAND. That is what you want?

Mr. CAMPBELL. Exactly.

Mr. EDMONDS. The words "in jeopardy" I do not think really mean very much. I think you can cut them out without hurting it very much, at all.

Mr. LARSEN. I think what you want to cut out is this phrase, or any deviation agreed upon between the carrier and the shipper at the time cargo space is contracted for"-shall not be deemed to be an infringement or breach of this act or the contract of carriage.

Mr. BOAL. I would like to state one case to illustrate how deviation works in connection with the present law. We had a ship carrying a cargo from the River Plata to two ports in Spain, one on the Atlantic and one on the Mediterranean. The vessel went to the Mediterranean port first and was to get fuel oil at Gibraltar. There was no fuel oil available there, and it would have had to wait three weeks for oil. Instead of waiting three weeks, she went to Lisbon and got oil, and then went to Seville and discharged her cargo. When she was at Gibraltar she had sufficient oil to get to Seville, but not enough to get out. That case was litigated in Great Britain. The lower court and the court of appeals held that the vessel had a right to wait at Gibraltar for three weeks to get fuel oil, in order to get down to Seville, and that when she went to Lisbon and got it there, although she saved two weeks' time in doing so, she deviated and became an insurer of the cargo. It is some situation like that this provision was intended to cover and to protect the carrier, that, I think, under this clause, would be held a reasonable deviation.

Mr. HAIGHT. Surely.

Mr. CAMPBELL. What kind of a clause did your bill of lading contain?

Mr. BOAL. The usual liberties clause.

Mr. CAMPBELL. That was even better than "reasonable deviation," was it not?

Mr. BOAL. They held it was a deviation.

Mr. CAMPBELL. Was not the clause in your bill of lading actually a broader clause than a reasonable deviation?

Mr. BOAL. No; I would not say that, Mr. Campbell.

Mr. DRAPER. Could I inquire of Mr. Boal how did it happen that there was not any oil at Gibraltar?

Mr. BOAL. I can not tell you how it did not happen to be in there, except that the only vessel that was bringing it in broke down and did not get there with it.

Mr. BRAND. May I ask you a question on that particular case that you used for illustration? If the vessel wanted to go to Lisbon for oil, would not they have to go to the various shippers and get them to consent under this provision that you ask?

Mr. BOAL. No.

Mr. EDMONDS. Not the one he proposes.

Mr. BRAND. "Any reasonable deviation agreed upon between the carrier and the shipper.'

Mr. HAIGHT. That is struck out.

Mr. BOAL. Under this clause they would have to wait at Gibraltar until they could get it or deviate, and if they had probably 100 or 200 shippers, that would be a physical impossibility.

Mr. BRAND. Your provision takes out some of this language-
Mr. BOAL. Yes.

Mr. BRAND (continuing). About the shipper consenting, etc? Mr. BOAL. Yes. In other words, under this provision, as it came from the 1923 convention, the carriers could make any departure from the agreed ports that was reasonable under the circumstances. Ocean transportation differs from land transportation in that you have the perils of the sea and the uncertainties of the sea transportation to contend with.

Mr. BRAND. Then if you were to start with a cargo from Greece, to come across the Mediterranean, and have an agreement that the vessel should not stop at other ports, or at any port coming across, and they were to stop at one or two and delay your cargo, say a week, you would have to go into court to decide whether it was reasonable or unreasonable, under your suggestion "reasonable deviation?"

Mr. BOAL. If the bill of lading provided that you could not stop at more than three ports, I do not think you could say that stopping at four would be a reasonable deviation, because he specifically agreed not to stop at more than three.

Mr. EDMONDS. Say you have ships going down the west coast of Africa or the east coast of Africa. Those ships stop wherever cargo is offered. We will presume your ship got to Liberia, and you got notice in Liberia that there was some cargo over at the Canary Islands for you or there was some cargo up in Morocco for you, and you went along and picked up that cargo and then came along. Would that be a reasonable deviation?

Mr. BOAL. It might be in the African trade but it would not be in the North Atlantic trade. There are not many ships in the African trade and they have to carry cargo for a great many ports, and pick it up at a great many ports.

Mr. CAMPBELL. But you would not know until the end of a lawsuit, would you?

Mr. DAVIS. Gentlemen, if you eliminate the application of the doctrine of reasonableness from our jurisprudence, you will eliminate a very great part of it, because the courts have uniformly held that doctrine is applicable, and frequently, where it is not applicable by statute, the courts themselves inject that into it, because every rule and every statute is presumed by the courts to have been written with the purpose at least of being reasonable.

Mr. BLAND. It is a rule of reason.

Mr. DAVIS. It is a rule of reason; yes.

Mr. SCOTT. And capable of flexibility, as suggested by Mr. Boal Mr. DAVIS. And when there is a controversy between two sides of a question as to whether the act performed is reasonable, and they are unable to agree and have no precedent, it has to be determined by the court according to the peculiar circumstances of that case. If you were to fix such a rigid rule, unbending rule, that there could never, under any circumstances, arise a lawsuit or a misunderstanding,