would be a hardship to make the owner liable for the master's management of commercial affairs to which he has not been educated. As to the crew, they are not able to judge of what is required for a safe navigation and for a proper stowage. As to short delivery of goods, it must be taken into consideration that frequently shippers pretended to have shipped goods which, in fact, had not been delivered on board, and that the master and crew of a vessel taking in or discharging cargo out of four hatches are unable to control the proper delivery. Lastly, it must not be overlooked that, notwithstanding the clauses in the bills of lading, the shipowners often voluntarily agree to pay for damages or losses not covered by their guarantee, so that the necessity of reform does not appear to be so urgent as it is made by the shippers.

The so-called monopoly of the shipowners is next considered. The committee were of opinion that the alleged monopoly did not exist. The shippers can apply to other shipowners. They can, by their combined efforts, start steamship companies themselves. It is not true that the bills of lading are forced upon the merchants. They are known to the merchants and are frequently modified. It often happens that several steamship companies try to come into business with a shipper of goods, and the shipper avails himself of this competition in order to secure advantages for himself. The enormous abatement of freights also proves that there is no monopoly because, if the shipowners had a monopoly, they would have been able to keep up the high freights. It is notorious that competition has reduced the freights so much as, in many cases, scarcely to leave to the shipowner the means of paying his expenses.

Then, as to the encouragement of negligence and fraud, the report proceeds to say that this argument is not a sound one. Competition is a sufficient safeguard against these dangers. The owner who does not take care to prevent, as far as possible, the occurrence of losses and damages will soon lose his clients. The exonerating clauses do not make it to the interest of the shipowner to have the goods lost or damaged. Negligence in the control of their employees would make the shipowners liable, notwithstanding the clauses.

The committee, for these reasons, conclude that the principle of public order does not require the prohibition of exonerating clauses. The shipowner who confides his ship to the master risks the loss of his ship; similarly the shipper risks the loss of the goods confided to the master. The shipowner protects himself by insurance; similarly the shipper may protect himself by insurance. If he chooses not to do so, he is his own insurer.

A law which prohibits the exonerating clauses could not prevent the consequence, viz.: the raising of freight rates in proportion to the greater risks incurred by the shipowner. This surplus of freight is equivalent to the insurance premium which the merchant has to pay if the risks are not covered by the shipowner. It follows that there is no sufficient reason for legislation instead of leaving the solution of the conflict between the owner and the merchant to the general law of economy. The legislator's duty is only to protect a person who invokes his protection against fraud and the clauses of irresponsibility cannot be considered to be a fraud to the prejudice of the merchant.

At any rate, all reasonable demands of the shippers are met by the offer of an alternative bill of lading. The surplus of freight stipulated by a French steamship company, the "Compagnie de Navigation Mixte," in 1897, amounted to Ofr. 88c. à 1fr. 54c. per cent of the declared value; which seems to be but a moderate charge.

The report then proceeds to an examination of the Harter Act and the Australian Act relating to the sea carriage of goods of 15th December, 1904, which is, on the whole, a reproduction of the Harter Act with some slight alterations. The Harter Act, it is said, leaving alone the wording of the law, which might be amended, cannot be considered as an example which should be followed. The conclusion drawn from the fact that the Harter Act has not injured the development of the American trade or naval industry is not decisive because there are many concurring and always-changing reasons for this development between which it is hardly possible to distinguish, so as to ascertain whether any and what part is attributable to the law in question. It must be considered that the United States law, previous to the passing of the Harter Act, held the shipowner responsible not only for the so-called commercial but also for the nautical faults of the master and crew, and, therefore, in this respect, the Harter Act alleviated the responsibility of the shipowner. The clause by which the Harter Act prohibits certain exonerating clauses has in view, as is proved by the debates on the Bill, to protect the American exporters of grain and flour against foreign transporters so long as there is no American mercantile navy to carry out these transports. The national flag of the United States. carries ten per cent only of their international sea transports. A committee of members of the Senate and the House of Representatives has been appointed to suggest remedies, and has arrived at the conclusion that subsidies were necessary to ameliorate the condition of the American shipowners. It is, therefore, not advisable to intro

duce the legislation of the United States into countries where the relations of commerce and navigation are entirely different from those in the United States.

Lastly, the question is considered from the point of view of the underwriters. And here the committee comes to the conclusion that, as far as the underwriters are concerned, the question simply comes to this: "Who is to pay the premium of the risks, the shipowner or the shipper?" And this, the committee says, is a question between private interests only, which does not justify the interference of legislation in a sense contrary to the principle of liberty of

contracts.

V.

This report, of the main contents of which I have given a short abstract, presents to our eyes a vivid picture of the stage at which the movement which, for upwards of twenty years has engaged the attention of the commercial world, has at present arrived. It introduces the interested parties-the shippers, the shipowners, the underwriters. We hear their arguments. We learn what judgment, after the hearing has been delivered by a body of eminent men directed to investigate this question by the government of a commonwealth which takes the highest rank amongst civilized nations. Thus we are enabled to form a judgment ourselves on a question which, for a long series of years, has occupied the attention of this asociation also.

First of all, the question is formulated in a more precise form than has been done before. The question is whether legislation ought to interfere with the principle of liberty of contract by prohibiting certain clauses in bills of lading issued by steamship companies. There is no question about sailing-vessels; as to these no complaints are made. There is no question about charter-parties; as to these, also, no complaints are made. The clauses which are objected to by the shippers can be particularly specified. They are not the clauses which, since olden times, figure in the bills of lading, viz.: the clauses, "the act of God, enemies, pirates, and perils of the seas excepted," and the clauses, "weight and contents unknown." Nor are they the more recent clause, "not responsible for fire on board, collisions, strandings, explosions, or other accidents of navigation, even when occasioned by negligence, default, or error in judgment of the pilot, master, crew, or other servants of the shipowner, nor for damage done on land, nor for obliteration, errors, insufficiency or absence of marks, numbers, address, or description," or similar clauses.

The clauses objected to are those which exonerate the shipowner from liability for loss or damage on goods arising from negligence, fault, or failure of the master, officers, agents, or servants of the owner in proper loading, stowage, dunnage, care, and proper delivery of goods committed to their charge. In other words: "The shippers want the owner to be and remain responsible for all losses and damages on goods happening in the time between their delivery to the master, or officers, or servants of the owner, and the delivery to the consignee, except such as result from acts of God, or accidents of navigation, even if caused by the negligence of the master, officers and crews, or pilots, or other persons employed by the owner in the navigation of the vessel."

Thus the owner would be responsible for thefts, for want of due custody whilst the goods received are stored in sheds or lighters before being charged on board or delivered to the consignee, for bad stowage and dunnage, for want of proper care in ventilating during the voyage, for wrong delivery or non-delivery or late delivery at the port of destination, for the risks of transhipment, and for loading goods on deck without previous agreement with the shipper.

The question, therefore, is: Whether it is desirable to bring about a law which compels the shipowners to bear these responsibilities.

It seems to be clear that such a law, if given, could not be given by a single nation, but must be an international law. The shipowners, if prohibited from declining the responsibilities in question, must be allowed to raise their freights. This would prejudice the national merchant navy of the particular state. An agreement between the seafaring nations-at least, the principal amongst them would, therefore, be indispensable.

This, however, is no reason for not trying to bring about an international law. The question, therefore, remains the same as stated above, only that the words, "an international law," must be substituted for the term, "a law," used above.

The only reason, in my opinion, why such a law could be deemed advisable, would be this-that the principle of public order required the law. This could be said only, if public interests suffered in the present state of things. This would be the case, if disorders of a public character-crimes or fraud-were the consequence of the present state of things, and could be prevented or diminished by passing such a law, or if the law were necessary or, at least, useful for preventing a loss of national wealth which arises from the present state of things.

Both arguments, indeed, are brought forward by the partisans of the proposed reform. It is said that thefts and embezzlement of cargoes are encouraged by the masters and crews knowing that their owner cannot be held responsible, and therefore will not dismiss them on account of their misdemeanors. Professor Platou mentions the case of the steamship, "General Gordon," which arrived at St. Nazaire with a cargo of wheat, part of which was discharged, but the remainder clandestinely taken away to sea by the master. And it is said that the negligence of the owner's servants in handling the cargo is encouraged by the negligence clause, and thus values are lost which form a part of the national wealth. It is also said that the bills of lading are discredited by the negligence clause.

These arguments, in my opinion, are not of a nature to justify the proposed legislation. To support them, it must be proved that thefts and embezzlements have increased in number in consequence of the introduction of the negligence clause, and that, by prohibiting this clause, they will diminish. This, as yet, has not been proved. It also seems to be highly improbable that the crew of a steamship will be prevented from committing a theft by reflecting that, by committing such a crime, they will damage the owner. The master of the "General Gordon" would have sailed with the cargo just as well, if the negligence clause had not been inserted in the bill of lading. Nor can it be said that the negligence clause encourages masters and crews to commit thefts and embezzlements by leading them to think that the owner will not dismiss them because he suffers no damage. For every steamship company will most certainly dismiss. such rogues, whether they be responsible for the damage done by them or not. And as to the credit of the bills of lading, it would have to be proved that the bankers who give their acceptance against bills of lading covered by insurance policies-and other bills of lading, as far as my knowledge goes, are not presented to bankers-distinguish between bills of lading without a negligence clause and bills of lading with a negligence clause. This proof, as yet, has not been given. Then there is the negligence in stowing the cargo, in providing proper dunnage, and caring for the cargo during the voyage, e. g., by ventilation. It must be granted that the stowage, the dunnage, and the care for the cargo, will be better attended to, if the stevedores and the people on board know that the owners must pay for the want of such attention. But, in order to justify legislation to interfere, more than this is required. It must be shown that a waste of goods is, in fact, caused by bad stowage, or dunnage, and bad ventilation, and that the owners do not do their utmost to pre