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Robert D. Benedict:
Frank Harvey Field:
If the reasons advanced by the member of the committee are simply reasons of expediency and do not go to the actual merit of the question of the limitation in an action for death, it does not seem to me that the American Bar Association ought to favor a form of bill that is designed to meet possible objection from shipping interests. The experience of New York bas been so illuminating on this subject since the revocation of the constitutional limitation of $5000 that it seems to me the whole country will very soon take off any limitation from the amount of recovery in such cases. If there is a right
of action which may amount to a large sum in the case of a person injured, certainly there should be no limitation against the proving of the actual loss to the next of kin by reason of the death of anyone through negligence. It seems to me, sir, that it would be a very narrow-minded and short-sighted action on the part of the American Bar Association to limit the recovery in an action of that kind. I hope my amendment will prevail.
William A. Ketcham:
This subject matter was one that when it came before this committee was not specially of interest to the members of the committee engaged in general practice, but we were assured and fully believed, and as far as I am concerned I have had no suggestion to change my belief, that that matter had been fully and carefully considered by the Maritime Law Association, and they ask that and they ask no more, and we were willing, therefore, to recommend what that association recommended. It would be well if in life we could all get all those things that we think we ought to have, but when we know by experience that we cannot get all the things that we think we ought to have some of us, as we grow older, have found that it was wise to try to get those things that we thought we could get. It was, therefore, that this committee believed that this measure carefully considered by the Association and recommended in its present form could be adopted, and that it would be wiser to recommend it than to recommend something that might be wiser, but which would not be adopted by Congress. So believing, it occurs to me, that the American Bar Association may concur in the action of the Maritime Law Association, and not follow off after the State of New York, if it be as the gentleman from New York states, that, having created a statutory right and imposed a statutory obligation, that state places no limitation or restriction upon the obligation. The power that can create can also limit, and I think it will be found that the vast majority of the states that have considered this question and have addopted such laws have not as yet followed in the wake of New York and left no barriers up. If, after Congress shall have passed this law and conferred this right, it shall be determined hereafter by Congress or by this Association that it is wiser to enlarge that right it will be time enough to consider that then, but those who had considered and examined the matter carefully assured the committee that in their opinion, unless this limitation was placed upon it, the law could not be got through Congress, and this Association, as it seems to me, ought not to adopt the impracticable and unreasonable method of calling for more than they can get because they think, perchance, they ought to have it.
Thomas J. Morris, of Maryland:
I ask permission to say a few words on this subject. I think the objection to the limitation of the amount of recovery is a purely academic and impracticable one.
I have had some experience in the trial vf damage cases in admiralty, and I think it may be said that there is hardly one case in a thousand where $5000 is not a fair and just compensation. More than that, there is a limitation upon the liability of ship owners which in most cases would reduce it to $5000. It is admitted that there is now a defect in the federal admiralty law that should be cured, and it seems practicable to get Congress to pass this proposed act in its present shape. If the amount of the recovery should be unlimited, it may meet before Congress with the solid opposition of the ship owners, which would very possibly defeat it.
The question is upon the amendment offered by the gentleman from New York (Mr. Field) to strike out in section 1 the words “not exceeding in all the sum of $5000.”
The amendment was lost.
The question now recurs on the original motion made by the gentlemen from Indiana, Mr. Ketcham, that the report be received and its recommendations adopted.
Samuel C. Eastman, of New Hampshire:
I do not desire to object to receiving the report, but a motion to adopt the recommendations of the committee carries with it the adoption of section 3 on page 2 “that we cannot recommend that state taxation shall be upon property actually within the state only.” The report goes on to say that “the taxation of personal property should be at the residence of the owner.”
So to decide would be contrary to the decisions of the Supreme Court, which has already decided that states may tax tangible personal property within their limits, even if the owner resides elsewhere. If now it is also within the scope of the state of the residence of the owner to tax that personal property, then double taxation constitutionally will necessarily follow, and double taxation certainly is a wrong, and I cannot agree to vote for such a proposition. Personal property for the purpose of taxation is often divided into tangible and intangible, and most of the disputes that have arisen have come from attempts to tax evidences of indebtedness, and on that there is a great difference of opinion. To adopt the report in its present form would commit the Association to something which is seriously questioned by many, and I hope by a majority of those present. The discussion of the subject would open a wide door, and therefore I content myself now with this expression of dissent, hoping that the Bar Association will not adopt the recommendation of the committee.
W. B. Swaney, of Tennessee:
I move that the question be divided. Let us vote first on the resolution recommending the passage of the bill. As I understand it, the motion really contemplates the adoption of the resolution in the first instance, and the question of the adoption of the report as a whole should come up separately.
Frank E. Gregg, of Colorado :
The motion is made and seconded that the question be divided.
The motion for a division of the question was adopted.
Now the question is on the adoption of the resolution reported by the committee, approving the act to authorize the maintenance of actions for negligence causing death in maritime cases.
The resolution was adopted.
The question remains as to what shall be done with the rest of the report.
Frederick N. Judson, of Missouri :
I move that the third recommendation, on page 2, be recommitted to the committee. I agree with the gentleman from New Hampshire that it is an attempt to state an economic proposition of taxation in altogether too compact a compass, and I do not think it is the province of this Association to deal with economic questions in the adjustment of taxation that may well perplex economists. I therefore move that it be recommitted to the committee.
Theodore Sutro, o New York: :
I second that motion, and in doing so I desire to say that in my opinion the adoption of this recommendation of the committee would give rise to confusion. In many
of the states, notably in New York, we have a special statute which has existed for years taxing specifically capital invested in the state by non-residents, and if the American Bar Association adopts a recommendation of this kind it will conflict directly with the statutes of many states. Moreover, this question has been carefully considered by the various commissioners that have been appointed in the different states, and the conclusion has been reached, and it has also been declared by the Supreme Court of the United States, that under certain circumstances it is desirable for the purpose of preventing evasion of taxation that the personal property of non-residents of a state should be taxed.