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Mr. EDMONDS. Gentlemen, it is now 20 minutes to 2, and I am going to suggest that we take a recess until 2.30.

(The committee thereupon took a recess until 2.30 o'clock p. m.).

AFTER RECESS

The committee reconvened pursuant to the taking of the recess, Hon. George W. Edmonds (acting chairman), presiding.

Mr. EDMONDS. We were taking up with Mr. Nicolson the changes in the bill suggested by the Shipping Board, and I will ask Mr. Nicolson to go ahead with the next change he has to suggest.

STATEMENT OF MR. JOHN NICOLSON-Resumed

Mr. NICOLSON. We propose to amend section 8 of the bill, that part of section 8, on page 5, at line 23, and the change proposed is as follows, that line 23 shall be changed to read as follows:

* * * for loss or damage to or in connection with the transportation of the goods covered thereby arising from negligence

And so forth.

The change in substance made there is this; or, permit me to qualify that; I think perhaps it is not a change in substance, but it is making clear what we think is intend and which, I understand from Mr. Haight, is probably true. As it at present reads, the section is:

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 * *

The question is what is meant by the term "or in connection with goods.' What do you mean by "loss or damage in connection with goods?" We know what you mean when you say "loss or damage to goods," but when you say "in connection with goods," we are led astray; at least, it is possible to be led astray.

Mr. EDMONDS. I have never known the Shipping Board to be led astray before. [Laughter.]

Mr. NICOLSON. We understand that it is intended to cover not only cases of physical damage to goods, but a loss of market through delay in reaching destination. If that is the intent, then it is wise to make it clear by saying, "or in connection with the transportation of." That is the cause of our proposal.

Mr. EDMONDS. Cross out the words "goods"?

Mr. NICOLSON. No, sir.

Mr. EDMONDS. You have to cross out the printed word "goods' to make sense out of it.

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Mr. SCOTT. Insert the word "transportation" after the word "with."

Mr. EDMONDS. "In connection with transportation arising from negligence," and so on, and cut out the word "goods." I guess there is no controversy on that.

Mr. NICOLSON. That clarifies the intent, Mr. Haight?

Mr. HAIGHT. Yes; I thought it meant the same thing. I see no reason to object to the change.

Mr. EDMONDS. Cross out the word "goods" and put in its place "the transportation of goods covered thereby," line 23, page 5.

Mr. NICOLSON. We think also a comma in line 25, after the word "section" might be helpful; but of course that is too trivial to dwell

upon.

Page 8, the second paragraph

Mr. EDMONDS. That is the deviation clause. Is this another one? Mr. NICOLSON. No, sir; I am not going to refer to the deviation clause; I am speaking of section 5, on page 8 of the bill. The second paragraph of section 5 reads as follows:

This declaration, if embodied in the bill of lading, shall be prima facie evidence but shall not be binding or conclusive on the carrier.

We move, sir, the striking out of the two words, in line 23, "binding or." We make this request for this reason: It is conceded that if the declaration is made and embodied in the bill of lading, it shall be prima facie evidence. Well, now, if it is prima facie evidence, obviously it is going to be binding on the carrier and it is incongruous, we think, to say that it will be prima facie evidence, and yet, in the next breath, to say it will not be binding. We, therefore, think the sentence should read, "but shall not be conclusive on the carrier," which, of course, it would not be; but it would be binding as prima facie evidence.

Mr. EDMONDS. You move the striking out of the words "binding or" there?

Mr. NICOLSON. Yes, sir.

Mr. WHITE. It would be both binding and conclusive, if there was nothing else.

Mr. NICOLSON. Yes; but, as prima facie evidence, it is not conclusive; for, if conclusive, it would be more than prima facie. Mr. BARNES. May I ask you a question?

Mr. NICOLSON. Certainly.

Mr. BARNES. I may not have the foundation of it correct; if I have not, please correct me. The Shipping Board vessels transport cargoes from the United States to England. They issue bills of lading to the shipper in the United States. The Shipping Board vessels, on their return voyages, carry cargoes from England to the United States and you issue bills of lading to the English shipper. Will you issue different bills of lading, having different wordings, in the United States, than those that you issue for cargoes coming to the United States? How are you going to reconcile it? Is it going to cause you difficulties, if your liabilities are different for cargoes taken from the United States from what they are when you are bringing cargoes on the return voyage from any one of these countries which have ratified this international convention?

Mr. NICOLSON. Well, the answer to that is that which we are now doing is not really to provide a different contractual relation; it is to make the language consistent with what it is evidently intended shall be the contractual relation. I think Mr. Haight concurs with me in that; do you not, Mr. Haight?

Mr. HAIGHT. Yes.

Mr. WHITE. Why is not the simple way to effectuate what you have in mind simply to say that it shall be prima facie evidence against the carrier? What is the object of making any reference to "binding or conclusive"?

Mr. NICOLSON. I think it is unnecessary, but I am not moving to strike out more than I think it is absolutely necessary to strike out,

for consistency. I think the rest is surplusage. To say it is prima facie evidence means, in my judgment, that it is one thing

Mr. EDMONDS. They took that from those folks over in England, and have passed it along

This declaration, if embodied in the bill of lading, shall be prima facie evidence but shall not be binding or conclusive on the carrier.

Mr. HAIGHT. Mr. Chairman, I can explain that historically. The steamship owners said "The mere fact a man states in a bill of lading the package is worth 1,000 pounds is not any proof at all." The shipper said "We are bound to have you admit, if we put a value and pay freight on that, that it is at least prima facie evidence," and they very nearly broke up the conference over debating it, and finally the steamship owners said, "All right; I will admit it is going to be prima facie evidence, but you have to add to that the words 'it shall not be conclusive evidence."" It is a practical bargain, reached over the bargain counter.

Mr. WHITE. It is an effort to define what prima facie evidence is not.

Mr. HAIGHT. I know, and I agree technically it is not the most sensible way to put it; but the parties were really bargaining with one another and this is the form it got into, and I think it is a pity to make a lot of changes we do not need, for fear we will get away from uniformity.

Mr. EDMONDS. You see where we would have gotten in the League of Nations, with our representatives backing down on that. [Laughter.]

Mr. LARSEN. Do I understand you object to that?

Mr. HAIGHT. No; I do not object to it-striking out "binding or." It is binding, but not too binding.

Mr. NICOLSON. It is binding as prima facie evidence; therefore, it is binding.

Mr. WHITE. The same objection which you have urged to the word "binding" applies to the word "conclusive.'

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Mr. NICOLSON. I do not agree with Mr. Haight that the word "binding" is not incongruous. The word "conclusive" is not incongruous; to say that prima facie evidence is not conclusive is only Lo state what every lawyer knows the statement means when he peaks of prima facie evidence; but these practical steamship men, as pointed out by Mr. Haight, did not wish to take any chance and they asked that it be stated affirmatively it should not be conclusive. Mr. BLAND. How about prima facie evidence in the absence of any other evidence? Does not prima facie evidence then become conclusive?

Mr. WHITE. Surely.

Mr. HAIGHT. Conclusive evidence is evidence you can not contradict. Prima facie evidence is evidence which, if not contradictedMr. SCOTT (interposing). Becomes conclusive.

Mr. HAIGHT. If uncontradicted becomes conclusive.

When you

say it becomes conclusive, it means conclusive. That is a very different proposition.

Mr. WHITE. Conclusive evidence is the law which governs. Mr. HAIGHT. No; it is the law which, on the witness stand, you can not prove to the contrary.

Mr. NICOLSON. In the first paragraph of section 5 we move the insertion of the words "the transportation of," in line 17, after the word "with."

Mr. EDMONDS. You remove what?

Mr. NICOLSON. We suggest the insertion of the words "the transportation of" after the word "with," in line 17, page 8. It merely does there what we have already done in section 8, on page 5, so that it will read:

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

That is the way it reads now. We wish to apply the same principle as just adopted in the earlier suggestion and say "loss or damage to or in connection with the transportation of goods."

Mr. EDMONDS. It is not adopted yet, but suggested. Mr. NICOLSON. You are quite right; I beg your pardon. In line 18, page 8, being the first paragraph of section 5, there occurs the words? or unit." We will not dwell on that, sir. We think it is an intangible, indefinite basis, but we do not feel justified in dwelling upon it beyond calling the attention of the committee to the fact that the word "unit" does not convey to the mind any definite thing. Mr. BLAND. You have made a right serious charge without suggesting anything to correct it.

Mr. NICOLSON. "Unit"-if it is the question of a unit and it is a cargo of coal, what is the unit? Is it each lump of coal, is it per ton of coal, per carload of coal, or what? It is suggested that whatever the unit used in the ordinary sale of the commodity may be, that shall be the unit.

Mr. HAIGHT. It is the freight unit.

Mr. NICOLSON. If that be so, perhaps it might be well to say so; but I do not know.

Mr. BURKE. May I say, Mr. Chairman, that recently the shippers of coal in England have agreed, among themselves and with the underwriters, that the unit shall be a ton.

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Mr. DRAPER. What about a Packard automobile shipped in four cases the chassis in one package, the wheels in another, the body in another, and the engine in another?

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Mr. NICOLSON. That might suggest a very serious question. It might be said the unit might be the automobile.

Mr. HAIGHT. If it is package freight, it is per package.

Mr. DRAPER. Would the court hold that was package freight? Mr. NICOLSON. They might hold the unit was the automobile. Mr. HAIGHT. Not a chance in the world. The "unit" only comes in where you have not any package. Where you have bulk cargo, and you can not say any of it is package.

Mr. DRAPER. How about limiting that to bulk freight, if that is what is intended?

Mr. HAIGHT. That is what it means.

Mr. CHANDLER. If you will permit me to interrupt, I shall have a definite suggestion to make, which I believe will clarify that point when I get to it, and it may save some discussion now.

Mr. NICOLSON. Beyond calling that, sir, to your attention, I will not dwell on it.

Mr. EDMONDS. I will say that is in the English bill, all right.
Mr. NICOLSON. Yes.

Mr. EDMONDS. "Per package or unit."

Mr. NICOLSON. But greatly to the regret of Judge Hough. Mr. EDMONDS. I think they are losing their cunning over in England. We will have to show them how to make laws after awhile. Mr. LARSEN. It strikes me it would be a very good time to dispose of that "unit" now, if they have a suggestion.

Mr. EDMONDS. We will take it up when we get to a discussion of the bill.

Mr. LARSEN. I mean to dispose of it here, now.

Mr. EDMONDS. I think it is a very questionable proposition to me, and Mr. Chandler may give us a suggestion of how to do it. Mr. Chandler is here representing the Merchants' Association of New York, and they are naturally very much interested.

Mr. NICOLSON. On page 9, section 6, there should again be inserted the words "the transportation of the," so that it will read: Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods * * *

Mr. DRAPER. How would that affect goods that were on the dock? Say they went to the dock and got there late, and laid there for three or four days, for another ship.

Mr. NICOLSON. That is not the point. It is intended, if it is negligence on the part of the carrier, that if there is delay in the delivery of the commodity at destination, and there is no just cause for that delay, then the carrier would be responsible for a change in market, possibly. You see, the consignee, instead of having his commodity there in time for delivery at a certain market, has it arrive when the market has dropped.

Mr. DRAPER. Let me put it another way: Some of our folks had some goods they were shipping to Italy on a ship that went out on a Saturday. The goods arrived at the dock Saturday noon and the ship sailed away Saturday night without the goods, and they are still in the custody of the steamship company. How would this affect a situation of that sort?

Mr. NICOLSON. Mr. Campbell has just mentioned that you must not overlook that this proposed bill of lading will not take effect until the goods have been put on board the boat.

Mr. EDMONDS. The bill itself carries into it the Harter Act, which would cover that.

Mr. WHITE. May I ask a question there? The language, as you suggest it, Mr. Nicolson, is "for loss or damage to or in connection with the transportation of the goods." Now what is the loss or damage in connection with the transportation of the goods which would be apart from the damage to the goods themselves? Delay? Mr. NICOLSON. Delay, sir, in delivery. Take, for instance, an unjustifiable deviation and the boat arriving at destination several days late, and the consignee, in consequence of the delay in delivery, has lost several points in the market. A question might arise as to whether the carrier is responsible, and that would be a loss arising from the transportation of goods, and that is why we think the words "the transportation of" should be inserted. Otherwise we are unable to see clearly what is meant when it is said "in connection with goods."

Mr. WHITE. I understand what you have in mind. I was questioning the English a little.

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