No. 98.
Sir Edward Thornton to Mr. Fish.

Sir: I have the honor to inform you that, in consequence of a dispatch which I have received from the Earl of Derby relative to the law of the United States with regard to the shipment of dangerous goods on board of different classes of vessels, I drew his lordship’s attention to the present state of that law, as embodied in sections 4278, 4279, 4472, 4473, 4475, 4476, 5353, 5354, 5355 of the Revised Statutes. I also transmitted to his lordship a copy of the bill (H. R. No. 1190) “to amend certain sections of titles 48 and 52, regulation of commerce and navigation, and regulation of steam-vessels, Revised Statutes of the United States, pages 800 and 857.”

Lord Derby has now instructed me to submit to the Government of the United States that there appears to be one important defect in the United States law, viz, that unless the dangerous article shipped happens to be one of the articles specified in the statutes of the United States, there is no remedy against the shipper.

[Page 203]

The general description contained in the bill, such as “and all other articles of like character,” appears to confine the articles referred to in the bill to those of an explosive character. There are many articles which are dangerous, from their inflammable nature or otherwise, but which are not explosive, and it would be desirable that some effectual remedy should be given in the case of shipments of dangerous goods of any kind. The 23d section of the British merchant-shipping act of 1873 uses the following words, which seem wide enough for all practical purposes, viz, “any dangerous goods, that is to say, aqua-fortis, vitriol, naphtha, benzine, gunpowder, lucifer-matches, nitro-glycerine, petroleum, and any other goods of a dangerous nature.”

If these or similar words could be introduced into the law of the United States, it might be a great improvement. It is to be observed that section 4 of the bill only specifies the articles “oil of vitriol, unslaked lime, inflammable matches, or gunpowder.”

Another defect would appear to be that the only remedy provided by the United States law is the power to prosecute the shipper of dangerous goods for a misdemeanor. There are numerous provisions in that law for punishing the ship-owner, and the statutes seem to be prepared on the assumption that the ship-owner is the person desirous of putting the dangerous goods on board his ship. This, however, is not the case. The great body of ship-owners, particularly those engaged in the passenger-trade, are most anxious to keep all dangerous goods out of their ships, and the difficulty that arises in excluding such goods is due to the fact that their owners, knowing the ship-owner’s objection to carry them, use various devices for concealing their nature. It is for this reason that some remedy against the shippers, more easily put in force than that of prosecution for a misdemeanor, would be extremely desirable. The 25th section of the British merchant act of 1873 gives power to the master or owner to open and inspect cases suspected of containing dangerous goods.

The 26th section authorizes the master or owner to throw such goods overboard.

The 27th section contains a most important provision, enabling any court having admiralty jurisdiction to declare such goods forfeited, and to dispose of them as the court directs.

There is often great difficulty in proving a case against a shipper, as it frequently occurs that he is a mere agent for other parties, and that he is ignorant of the nature of the goods. The real principal in the transaction is generally the consignee, and yet it may be impossible to prove his connection with the matter, and as the law stands at present in the United States the ship-owner is compelled to deliver to the consignee the dangerous goods which he has carried, upon their arrival at the port of destination.

The shipper of dangerous goods is therefore not discouraged from continuing the practice. Power of forfeiture, under the direction of a legal tribunal, appears to be the only mode of meeting such a case.

Lord Derby has instructed me to express the hope of Her Majesty’s government that the above observations and suggestions may be considered by the Government of the United States of sufficient importance to be worthy of attention, and possibly of adoption, if the Legislature of the United States should deem it expedient.

I have, &c.,