W The amendments suggested to H. R. 4378 are as follows: That lines 6 to 10, inclusive, on page 1 of the bill be amended to read as follows: "SECTION 1. That the provisions of the act shall apply to all common carriers engaged in— "(a) The transportation of passengers or property by railroad, or part way by railroad and part way by water, but in the case of transportation of property, only when it is carried upon a through bill of lading including both the rail and water transportation and when the rate for the rail part of the haul shall not be greater than the rail carrier receives for the same rail haul when performed as a part of the all-rail haul between the same point of origin and same destination." That section 7 of the bill be amended by inserting after the word "act" in line 9, page 15, the words " except carriers by water excluded by subdivision (a) of section one of this act." (NOTE. That is to say, as such subdivision (a) is modified by the amendment proposed above.) That section 10 of the bill be stricken out, amending paragraphs (b) and (c) of section 6 of the act. That the eleventh paragraph of section 20 of the commerce act be amended by adding at the end thereof the following: "Provided further, That the two years' time allowed by this section for the institution of suits to recover the loss, damage, or injury complained of shall begin at and be computed from the date of the proper service of a notice in writing by the carrier upon the claimant that his claim will not be allowed by the carrier, and no contract, receipt, bill of lading, rule, regulation, or other thing of any character whatsoever shall limit the right of a claimant to bring a suit as herein provided or exempt the carrier from the liability imposed by this section." The CHAIRMAN. We will now hear Mr. Hill, of New York. STATEMENT OF MR. HENRY W. HILL, REPRESENTING THE BUFFALO CHAMBER OF COMMERCE, BUFFALO, N. Y. Mr. HILL. Mr. Chairman and gentlemen of the committee, the Buffalo Chamber of Commerce, which I have the honor to represent at this hearing on the Esch-Pomerene bill, designed to amend this act to regulate commerce, has authorized me to call attention to certain sections and paragraphs of the pending bill, which you may conclude to be amended. The Esch-Pomerene bill has many very commendable provisions in it and they may stand without in any wise being affected by amendments to other provisions of the bill. Existing provisions of the act to regulate commerce, approved on February 4, 1887, have been called the second Declaration of Independence, as they greatly relieved the commerce of the country from unjust and ruinous discrimination. To do that, however, it required their rigid enforcement and frequent amendment to meet conditions ..unforeseen by the framers of such act, including the late Senator orge F. Edmunds, of Vermont, and the late Senator John Sheran, of Ohio, and others. In the administration of the law it was ound that some of its original provisions might be extended and imroved, and the country itself found that it might be extended and in some respects perfected. Accordingly the present act to regulate commerce has a much wider scope than the act originally had. It has grown in popular favor and is a bulwark of defense to producers, shippers, and consumers, all of whom are dependent for the transportation of products, edibles, and supplies on rates of transportation and their regulation. 152894-19-VOL 3- -2 Neither the original act nor any amendments thereof, however, ever extended to water carriers, except possibly in a very limited manner, where such water transportation was an indissoluable part through transportation, connecting to railroad lines or affording connections at terminals, as is done in and about the harbor of New York, where floats a transport loaded with cars from the railroad yards in New Jersey to the warehouses in and about the port of New. York or across to the Long Island Railroad. This latter water carriage may be deemed to be a part of the railroad carriage and within the jurisdiction of the Interstate Commerce Commission. It also illustrates what may occur in other sections of the country where the necessity therefor exists. Aside from these few exceptions, the Interstate Commerce Commission has not been given jurisdiction over water carriers. The pending legislation, however, is designed to extend the law to include water carriers, except where such carriers operate wholly within a State, carrying only intrastate tonnage. It will be necessary to examine the pending legislation with some care to grasp the scope of its provisions. Section 1 of the Esch-Pomerene bill, if that bill be enacted into law, will extend the scope of the act to regulate commerce, popularly known as the interstate-commerce law, to transportation of passengers or property by railroad or by water, or partly by railroad, or partly by water, applying to common carriers for hire, engaged in operating vessels on the lakes, rivers, canals, and other inland waterways within or bordering on the United States or the Territory of Alaska, the Panama Canal, and all waters within or without the three-mile limit from the coast of the United States or the Territory of Alaska traversed by vessels permitted to engage in the coastwise trade of the United States, provided they be engaged in interstate commerce. This is a departure from the original conception of the purpose of the act to regulate commerce. It was not intended to reach and include water carriers and not until power was conferred upon the President to include canals and interior waters within the scope of the transportation facilities, upon which he was authorized to expend moneys from the $500,000,000 revolving fund, has any department of the Government of the United States exercised any authority or undertaken to operate vessels over the canals and interior waterways of the State of New York, or any other State, as far as I am advised. Federal operation over such waterways within the last two years has not been extensive and not altogether satisfactory to the commercial interests of the State of New York. The tonnage on the New York canals for the year 1918 was only 1,159,270 tons and for the year 1917 the tonnage was 1,297,225 tons. The tonnage for these two years was the smallest for any two years during the last half century. This decline, however, was not entirely due to Federal utilization and operation of the New York canals, but was undoubtedly in part due to other physical conditions obtaining with reference to the canals themselves while undergoing improvement and to the lack of adequate facilities for transportation over them. The general consensus of opinion, however, seems to be opposed to the continuation of Federal operation on the ground that such operation necessarily comes into close competition with individual and cor porate operation of vessels on the State canals. Individuals and corporations are loath to embark in the business of transportation in competition with the United States Government and instead of extending the powers of the Interstate Commerce Commission over the New York canals, commercial interests in New York and the superintendent of public works favor the relinquishment by the Federal Government of the operation of Government-owned vessels on the canals of that State. The Esch-Pomerene bill, if enacted into law, will greatly extend the powers of the Interstate Commerce Commission. As already stated, the original act did not apply to intrastate commerce, except to prevent unjust discrimination by State authorities as to inter(Houston E. & W. T. R. Co. v. U. S., 234 U. S., state commerce. 342.) Under this act undue discrimination between localities in different States by unreasonable difference between intrastate commerce and legal interstate rates by the reduction of the former by the acts and officers of a State may be prevented by the Interstate Commerce Commission. (Shepard v. Northern Pac. Ry. Co., 184 Fed. Rep., 765; decree modified by Simpson v. Shepard, 230 U. S., 352.) Congress has not taken over State terminals so as to render invalid a State law requiring an interchange of business at a State terminal. (Vandalia R. Co. v. Public Service Com. (Ind.), 106, N. E. Rep., 371.) The phrase to wit, "Under common control, management, or arrangement for a continuous carriage or shipment" is considered in Cincinnati, etc., v. Interstate C. C. (162 U. S., 184), and also Interstate C. C. v. Detroit, etc. (167 U. S., 633). Railroads sharing in an agreed rate on traffic, though intrastate, come under the foregoing phrase. The term common carrier in the interstate-commerce act does not include a water carrier, except it be ferries and ships used in connection with railroads. It is generally conceded that the Esch-Pomerene bill, if enacted into law, will supersede some provisions of the shipping act, that being chapter 451 of the acts of Congress approved September 7, 1916, and it may authorize the Interstate Commerce Commission to impose regulations in conflict with the provisions of the navigation laws of the United States. However that may be, water carriers from port to port are unwilling to be subjected to the provisions of the bill under consideration, which may, if enacted into law, permit the Interstate Commerce Commission to make orders (a) to regulate and control port to port interstate water rates; (b) to prescribe minimum rates; (c) to compel water carriers to publish their rates in tariff form and file such tariffs with the commission; (d) to compel water carriers to observe any rule or form prescribed by the commission for the keeping of accounts and records and of receipts and disbursements; (e) to establish purely intrastate rates when the relationship of the inter and intra state rate is at issue. Furthermore, section 13 of the proposed bill seems to authorizethe Interstate Commerce Commission to confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to said act with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of State bodies and of the commission, and to that end is authorized and empowered, under the rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters wherein the commission is empowered to act and where the rate-making authority of the State is or may be affected by the action taken by the commission. You will observe, on page 13, that the act authorizes the Interstate Commerce Commission to forbid and declare to be unlawful any undue preference or prejudice as between persons or localities in State and interstate and foreign commerce. Mr. SANDERS of Indiana. You say forbid further traffic? Mr. SANDERS of Indiana. What language is that? Mr. HILL. Page 21, the latter part. Mr. MERRITT. That deals with the rates and not with the traffic. Mr. HILL. Let me state just one thing more. The bill provides that it shall not apply to the commerce wholly within a State, except as may be done under section 13. Mr. SANDERS of Indiana. I was inquiring as to your language when you stated they had the power to forbid the traffic. Mr. HILL. I will have to elucidate that. I have forgotten the section, but one section of the bill provides that it shall not apply to commerce within a State except as otherwise prescribed in section 13. Then section 13 prescribes what may be done and what the Interstate Commerce Commission may do. Mr. SANDERS of Indiana. That is to regulate the traffic, but not to forbid it. Mr. HILL. No; not to forbid it. I think, perhaps I was inapt in my expression, I ought to have said, it may forbid the preference. Upon the complaint of any shipper, wherein there is brought in issue the lawfulness of any rate, fare, charge, classification, regulation, or practice made or imposed by authority of any State, the commission, before proceeding to hear and dispose of such issue, shall cause such State or States to be notified of the proceeding. This language seems to authorize the Interstate Commerce Commission to entertain jurisdiction of such matters, though they be wholly intrastate, notwithstanding the express language of the act found in the proviso on page 2, reading, so far as is pertinent to this question, as follows: That the provisions of this act, except as expressly provided in section 13 thereof, shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid. Though the courts ultimately were to hold that the proposed amendments did not extend the jurisdiction of the Interstate Commerce Commission to water carriers operating wholly within a State, the possibility that the commission might exercise such jurisdiction on the ground that the intrastate rate affected the rate on interstate commerce of itself might deter shippers from using our canals and interior waterways, as they ought to be used. There may be some disposition on the part of those who administer the law to so extend the jurisdiction of the commission upon the complaint of a shipper or of a carrier, and if the commission were to undertake to regulate rates the intrastate transportation of interstate tonnage, it would be a burden to the carriers, who would be required to file schedules of rates, that are constantly fluctuating. That is due to the nature of the traffic over waterways and the competition there is to secure such traffic. It is impracticable to undertake to regulate intrastate rates, even though they be a basis for interstate rates. They ought to be free from any control, for they are the basis or fundamental conditions, which determine other rates, as the Interstate Commerce Commission in the past has recognized. Nature has provided waterways, which are highways, and ought ever to remain untrammeled. Artificial waterways have been constructed to connect natural waterways and therefore they ought to be free and untrammeled. The State of New York by an amendment to its constitution in 1882 provided that the canals of the State should be free of tolls, and ever since that time they have been free of tolls and open to the public. Judge MacLean has called attention to what New York has dono in constructing its artificial waterways from the Great Lakes to the Hudson River. The State did this on its own initiative, after the Government of the United States had repeatedly declined to aid or cooperate in their construction. Before the original Erie Canal was built in the years 1817-1825, application was made to the Federal Government for aid, but it was refused, and not since that time has the Federal Government contributed anything toward the construction, improvement, or operation of the New York canals, except during the recent war, when it undertook to operate in a small way barges thereon, which has not been entirely successful nor satisfactory. At an expense of $154,800,000, for which some State bonds have been issued, the State of New York has constructed the best canal system in the world. Its terminals are being constructed all through the State. A distinguished engineer in Berlin in 1905 conceded that the New York barge canals, then projected, were the best in the world. Mr. DENISON. You will except the Panama Canal, will you not? Mr. HILL. No; I will not except the Panama Canal. That is a canal between two oceans, connecting those oceans through a body of natural water, extending two-thirds of the distance between the two oceans. All that was necessary to do was to connect up the two oceans with the natural body of water at the divide to make the canal effective for ocean-going vessels. New York has built canals from the Great Lakes to the sea through cities, towns, and villages and through all kinds of soils and various geological formation, which canals are adequate to transport vast quantities of tonnage between the Great Lakes and the ocean. The New York barge canal system did not cost as much as the Panama Canal and in some respects the Panama Canal is physically greater in that it permits the passage of vessels of 30-feet draft, whereas the New York barge canals admit of the passage of vessels of less than 12-feet draft. The amount of excavation, however, the engineering problems involved, the impounding of great bodies of water like the Delta reservoir, having a capacity of two and three-fourths billions cubic feet, and the Hinkley reservoir having a capacity of three and four-tenths billions cubic feet, the canalizing of the Hudson, Seneca, Mohawk, Oswego, and other rivers, and the construction of locks 328 feet long, 45 feet wide, and 12 feet deep over miter sills, one of which locks has a lift of 40 feet, namely, that at Little Falls, and other large |