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Mr. BUSBY. I have read the hearings, but I will not yield any further. I can not take up all of my time by yielding to you three gentlemen.

The next proposition presented is that the General Federation of Women's Clubs is back of this bill. They are not back of this bill. They are back of prison reform, and I commend them for being back of prison reform. They are against your leasing convicts back in the States where you come from, and you ought to be talking to your legislators instead of asking the Government to make this change. You gentlemen should be seeking a remedy back where you come from.

Mr. CARSS. Will the gentleman yield?

Mr. BUSBY. No; and, Mr. Chairman, I do not want to be pestered to death by the gentleman. The third proposition is the prison-reform organization. This bill would not reach the evils that these organizations are trying to reach. What you need is to go back liome, go to your legislatures and get some laws passed that will remedy this situation in your own State. [Applause.]

Now, you say this is to remedy certain conditions, but you must confess that iny State is taking care of the convicts through our manner of employing them, and yet you want to obliterate that system by wiping out a possibility of our continuing to produce those products which, if shipped in commerce to another State or the States around us, may be forbidden to be sold there.

What are you folks going to do who are losing all the cotton mills in Massachusetts and the other Eastern States? Are you going to compel each State to found eottou factories and keep within the confines of each State the manufacture of the cotton produced there? Do you not think that North Carolina and South Carolina, in behalf of their factories, might say that you can not ship any of the cotton Into those States that is produced by the convicts in Mississippi? In such an event a State might have to say, "We will build factories of our own and manufacture our own materials." So you see it is not a question of State rights. There is no principle of State rights involved in the whole proposition, but when we stop to consider it we find it is a proposition to bring about contention and dissension among the States by wiping out the provision that vests in Congress the control of interstate commerce.

I believe that is all I have to suggest except this: That you gentlemen take stock of yourselves, before you think you are voting for the proposition of State rights, and see what kind of dissension and .contention you are liable to fall into with your sister States as well as create among all the States in the country. [Applause.]

Mr. Chairman, I am requested to ask unanimous consent that all gentlemen who have spoken on the bill may have permission to revise and extend their remarks in the Record.

The CHAIRMAN. The gentleman from Mississippi asks unanimous consent that all gentlemen who have spoken on the bill may have the right to revise and extend their remarks in the Record. Is there objection?

There was no objection.

Mr. KOIT. Mr. Chairman, I yield to the gentleman from Missouri [Mr. Cochban].

Mr. COCHRAN of Missouri. Mr. Chairman, Missouri will be vitally affected by this legislation, but, so far as I know, the State officials and prison board are alone in opposing the measure. The people who pay the taxes—labor, business, and civic organizations—want it enacted. I propose to support the bill.

When this bill, which divests goods, wares, and merchandise manufactured, produced, or mined by convicts or prisoners of their interstate character in certain cases, was pending in the Sixty-ninth Congress, on my own initiative I wrote the penal board of the State of Missouri, calling its attention to the measure, warned the board the bill would eventually pass, and suggested my State should start now to prepare to meet the provisions of the bill.

Shortly thereafter the Governor of Missouri sent members of the board to Washington who appeared before the committee protesting against the passage of the bill.

Under date of February 7, 1928, I received the following telegram from the penal board of Missouri, signed by the secretary:

Missouri penitentiary, the largest in United States and one of the largest in the world. Am authorized by our penal board to advise you that any Federal statute interfering with the shipment or sale or restriction of shipment of prison-made goods will wreek the finances of this penitentiary and incidentally will saddle upon the taxpayers of Missouri an additional burden of $2,500,000 per biennium. We respectfully request that you use your vote and influence against any Bueh legislation.

In my reply I called attention to my letter, when I suggested the advisability of arranging to employ the men and women in

diversified industries, and again told the penal board I proposed to support the bill, now known as the Hawes-Cooper bill, having been introduced in the Senate by Senator Hawes, of Missouri.

I am opposed to the dumping on the market of prison-made goods to compete with similar goods manufactured by free labor.

The telegram I received is certainly misleading, as it states the enactment of the Hawes-Cooper bill " will wreck the finances of this penitentiary." The finances of the penitentiary in Missouri have already been wrecked by mismanagement to such an extent that information received through the press shows a deficit of nearly $1,000,000 and the prediction has been made that the deficit will go higher. I therefore wonder how it will be possible to wreck the finances of the Missouri Penitentiary.

Be that as it may, the fact remains legislation should be enacted that will divest prison-made goods of their interstate character.

Mr. KOPP. Mr. Chairman, I yield to the gentleman from New York [Mr. Clarke].

Mr. CLARKE. Mr. Chairman, reluctantly I have been forced by the arguments, as well as by investigation, into believing that the Hawes-Cooper bill should have iny support.

The humanitarian plea of occupation for the unfortunates in our prisons, as well as our asylums, has been a necessary part of my education because my sister, Eleanor Clarke Slagle, has been a pioneer in this work, first in Hull House, then for the State of Illinois, then with the Kiiipp clinic at Johns Hopkins and she is now in charge of the vocational training in our State asylum of the State of New York. I have seen the marvelous products of incompetents at the Binghamton State Asylum. I saw mental incompetents operating a sawmill, of course, under direction, and I have known something of the unfair competition of prison-made goods under false labels, unfairly competing with legitimate industries.

I think it is inherently wrong if the Federal Government has the power to allow the use of the interstate commerce powers in promoting something that is illegal, i. e., the dumping of prison-made goods from one State into another where the sale of prison-made goods is against the law.

The statement of the gentleman from Minnesota [Mr. Cabss] shows that Minnesota is an outstanding example of everything that can and should be done for our unfortunates, they have no convict labor in Minnesota and they have no unfortunates idling in prison houses because these unfortunates are at work and when anything comes from their prisons it bears the label and there is no trickery or subterfuge about the competition.

I desire also to compliment my friend the distinguished Representative from Pennsylvania [Mr. Casey] as I compliment the broad-gauged attitude of the American Federation of Labor, of which he is a splendid member, for their unanimous Indorsement of the Hawes-Cooper bill.

Take the stitching industry, as an example, and those who are not able to tie up with prison-labor contracts have suffered very severely since the war by the competition of prison-labor contractors, and their testimony is that the prices at which prison-made goods are sold are such as to make it totally impossible for the private manufacturer to get even tlie cost of his labor and material out of it, to say nothing about a profit, and it is gradually eliminating private manufacturing from this field. Looking at it from another angle, this stitching work in prisons is largely done by male prisoners, and they can not obtain employment in these industries after .their release, as the work is there done almost entirely by women, so there is no benefit in training these prisoners. Who does it benefit, then? As far as I can see, the only party benefited is the contractor, and I can not see that it is the function of the Federal Government to protect him.

Mr. Chairman, I am in favor of this bill, and will vote for it.

Mr. KOPP. Mr. Chairman, I yield the balance of my time to the gentleman from Pennsylvania [Mr. Casey].

The CHAIRMAN. The gentleman from Pennsylvania is recognized for three minutes.

Mr. CASEY. Mr. Chairman, in three minutes, the time allotted me, I will not be able to go into the details of the bill now before us, but let me say this is not a new question just milking its appearance before Congress. When I first became a Member of the House in 1913 the first committee assignment I received was to be a member of the Committee on Labor of the House and one of the very first bills this committee gave consideration to was a bill carrying in its provisions identically the same principle that is involved in the bill now before us.

About 22 years ago, while a member of the Legislature of Pennsylvania, I helped to write the first prison labor bill in that Stute. At that time it was not very popular to advocate that, prisoners be permitted to do any work; but we laid down the principle that prisoners should be kept occupied in some way, but that the products of their labor should not come in competition with free- labor or froe industry. This Is the very same principle that is involved in the bill now before us.

There is no question before us of closing up manufacturing establishments in connection with the prisons of the several States. There is no question involved here as to the closing of prison farms in Alabama or any other place. All this bill does is to protect the prison farms of the South and elsewhere so that they can not be overrun by prison-made products from other States, leaving with the States the right to regulate all prison-made products made or imported into the States. That Is the principle involved in this bill.

A great deal has been said about the American Federation of Labor, and labor generally, being against all manufactured products by prison labor. This is not correct. The American Federation of Labor has never, to my knowledge, taken such a position. I have just come from the Pennsylvania Federation of Labor convention, whi'-h was in session all lust week in the city of Philadelphia, where I had the honor of being elected the president of that great organization for the next two years. [Applause.]

The convention, with a voting strength of about 1,150 votes, unanimously indorsed this bill and urges it.s passage. I carry this message to you from the convention and ask you not to look upon this question as a selfish or a sectional question. It i.s not the amount of gor.ds produced that concern us so much as it is the principle involved, which we are all opposed to.

The American Federation of Labor or the organized labor movement in general can not be selfish In respect to the passage of legislation, because legislation must be general and must be for union and nonunion alike. Pennsylvania and other States that have legislated on this question are entitled to some consideration in the disposition of this question.

While we all no doubt sympathize with the unfortunates who are behind prison bars, the men and women who do not violate nur laws and who are compelled because of necessity to earn their bread by the sweat of their brow are certainly entitled to at least the same consideration as those who have violated our laws and are confined in our penal institutions. While I am ready and willing to help those in our penal institutions, I am not willing to give those who profit of their involuntary servitude any advantage over free labor and industry.

The CHAIRMAN. The time of the gentleman from Pennsylvania has expired; all time has expired.

Mr. KINDRED. Mr. Chairman

The CHAIRMAN. For what purpose does the gentleman from New York rise?

Mr. KINDRKD. Mr. Chairman. I rise to submit a parliamentary inquiry. How can I get recognition for one minute? I wish to support the bill.

The CHAIRMAN. All time for general debate has expired.

Mr. KOPP. Mr. Chairman, I move that the committee do now rise.

The motion was agreed to.

Accordingly the committee rose: and the Speaker having resumed the chair, Mr. Beedy, Chairman of the Committee of the Whole House on the state of the Union, reported that that committee, having had under consideration the bill (H. R. 772ft) to divest goods, wares, and merchandise manufactured, produced, or mined by convicts or prisoners of their interstate character in certain cases, had come to no resolution thereon.

Pensions

Mr. ELLIOTT, from the Committee on Invalid Pensions, presented a conference report on the bill (H. R. 10159) granting i»ensious and increase of pensions to widows, former widows, and certain soldiers, sailors, and marines of the Civil War, and for other purposes, which was referred to the calendar and ordered to be printed.

THi. 8KCOND PASSING OK THE AMERICAN MERCHANT MARINE

Mr. FREE. Mr. Speaker, I ask unanimous consent to extend my remarks in the Rkcoki> on the subject of an American merchant marine.

The SPEAKER. Is there objection to the request of the gentleman from California?

There was no objection.

Mr. FREE. Mr. Speaker, an eminent shipping expert recently declared that if the present trend continues the American flag will disappear from the yeas in 16 years. This will be but an instance of history repeating itself and will be the second passing of the American merchant marine. Uefore the Civil War the American merchant marine was a power on the seas and our wooden ships carried a large proportion of our export trade. The war brought changes and greater competition but still the American clipper ships successfully met the competition of foreign flags.

The advent of iron and steel ships brought about adverse conditions to the American ships, and with the power of steam entering into the marine conditions Great Hritnin subsidized British yards, made large payments for carrying her mails to aid the British shipbuilders and operators, while th^ United States Government made but one. feeble effort to hold her supremacy by heavily subsidizing the Collins Line, two American steamships that were contracted for, and an agreement was made that, these American-built ships should be faster and better than anything that could be built by Britain. This experiment demonstrated that the American shipyards could turn out an American steamship the equal, if not the superior, of any, and from 1S50 until the United States ceased to meet the growing government aid furnished by Great Britain, the ships of the Collins Line showed their superior sailing qualities. But with the growing competition of Great Britain and the failure of our Government to pay the necessary subventions, our ships in the foreign tn:de practically went off the seas.

The following figures show the amount of our foreign trade carried in American ships at different periods:

Per cent

1830 89. 9

1840 82. 9

18f>0 72. 5

1860 66. 5

1870 35. 6

1880 17. 4

isno 12. 9

1900 9. 3

1910 8. 7

19-JO: 42. 7

1924 38. 3

1025 34. 1

1926 32. 2

These figures show a decline in the 80 years, from 1830 to 1910, of 81.2 per cent, and in the 0 years, from 1920 to 1920, of 10.5 per cent.

In 1901 the United States had practically ceased to be a power In the foreign trade and we carried but 9 per cent of our own export trade in American ships, and in 1913, just before the World War, we were carrying practically none of our foreign trade under the American flag. The war changed these conditions, and while in 1913 we had but 1,676,152 gross tons foreign tonnage, we began to build new tonnage, and in 1915 we constructed 155,000 gross tons of new ships; in 1917, 513,000 gross tons; in 1918, 1,000,000 gross tons; and, in 1920, that had increased to 3,660.000 gross tons. By 1921 we had built 10,466,000 gross tons of new shipping and were second only to England In world construction and the second in merchantmarine sea power.

The end of the war, of course, caused a slump in shipbuilding and we found ourselves with many ships and with no business for them. In 1923 the United States Shipping Board owned 1,313 steel ocean-going ships of 1,000 tons or over and the private owners 1,202 ships of 500 tons or over, the Shipping Board owning 6,370,777 gross tons, the private owners 5,243,630, or a total of 2,515 ships with an aggregate tonnage, of 11,614,416 gross tons. The world tonnage in 1925-26 was 9,854 ships, with aggregate tonnage of 30,500,000 gross tons. At the end of the war we were carrying about 42 per cent of our own foreign-going commerce in American ships, as the Allies engaged in carrying troops and war munitions and the American foreign-trade tonnage was carried largely by American ships.

At the end of 1926 foreign competition had become so keen that we were carrying only 32 per cent of our own foreignborne tonnage in American ships. The amount of foreign-borne tonnage carried by American ships is steadily decreasing and according to the reports of the National Conference Board of New York, from 1920 to 1926 our tonnage in building operations has decreased 7V4 per cent while world tonnage has increased during that period 16 per cent, and of this Increase Great Britain, our nearest comi>etitor, has increased her new tonnage by 7.7 per cent.

Many shipyards, including the great Cramps yard, in Philadelphia, have gone out of the shipbuilding industry since the World War and new organizations of ship operators have become noticeably less. This indicates to some degree at least that American capital is not being invested in American ships, at least in the foreign trade. Of course, the coastwise and intercoastal trade, a protected industry, with its 7.500.000 tons of shipping, including Hie Great Lakes industry, is in a fairly prosperous condition, and the large number of ships and the many companies engaged in purely domestic marine commerce, make rates fair to American shippers because of their highly competitive business basis. But when we consider the foreign trade, we have an entirely different picture.

Since 1885 foreign ships have carried over $50.000.000.000 of our foreign commerce, and at a moderate estimate we have paid them approximately $7,500,000,000 freight charges In that period.

Our international trade amounts to almost $10,000,000,000 annually, with freight revenues for transporting this commerce of $600,000,000. Seventy per cent of our international trade is carried in foreign-flag ships.

To meet the demands of this trade during the past five years the United States built 18 ships of over 2,000 tons bu'rden, aggregating 195,191 tons, while Great Britain huilt 882, with an aggregate tonnage of 4,905.853 tons; Japan, 75, aggregating 333,327 tons; France, 104, with an aggregate tonnage of 630,613 tons; Italy, 87 ships, aggregating 711,499 tons; and Germany, 192 ships, aggregating 1,118,635 tons.

The trans-Atlantic passenger trade has heen furnished with new and fast ships of large tonnage, and while the United States has but four ships that can steam 18 knots and but one that can steam over 20 knots, Great Britain has thirty-eight 18-knot ships and twelve 20-Unot ships; France, nineteen 18-knot ships and eleven 20-knot ships; Italy, nine 18-knot ships and nine 20-knot ships; Japan, two 18-knot ships and two 20-knot ships; and Germany, two 18-knot ships and one 20-knot ship.

With the year ended June 30, 1926, the value of our foreignbound export products was $4,804,581,000. Our foreign exports for April, 1927, amounted to $415.211,724, an increase over April, 1926, of $27,238.034. Our trade on the west coast from San Francisco shows a great increase in the foreign trade with South American ports and the Orient. In the years between 1909 and 1913 the value of the products and manufactured articles amounted to an annual average of $98.743,415. Up to 1926 there has been a continued average increase in value, as in 1926 it was $397,213,309 from the port of San Francisco alone.

Foreign nations are alive to the value of our foreign trade, and they demonstrate their sea-minded wisdom by building ships of greater speed, greater economy of management, larger cruising areas, more refrigerated space for jierishable cargoes, and more luxury in equipment for the passenger traffic. As these ship-minded nations have constructed new fleets to compete with our old and to a degree worn-out vessels, it is needless to inquire why the world trade is not being carried by American-flag ships.

Since 1921 for every ship of 2.000 gross tons and over that has been built in the United States, Great Britain has built 45, Germany 12, France 5, Italy 5, and Japan 4.

Of the total volume of American foreign commerce, export tiiul imjiort, American vessels to-day carry less than 30 per cent.

Why is it that we have not been able to compete with foreign countries in our shipping? There are various reasons for this.

First. Foreign ships are highly subsidized by their governments.

Second. Owing to higher wages paid American workmen, it costs from 40 to 63 per cent more to build a ship in American yards than in foreign yards. Seventy-eight per cent of the cost of a ship is labor.

To construct a 10,000 dead-weight ton oil-burning vessel of a speed of 14 knots in an American yard costs $171 jier deadweight ton. The cost of a similar vessel in a British yard is $80 iier dead-weight ton. This means that there is $1,010,000 more capital tied up in the American than in the British vessel.

In the operation of a ship there are certain tixed charges on the capital invested, aggregating 18 per cent, and made up as follows: Interest 6 i>er cent, depreciation 5 per cent, repairs 2 per cent, insurance 5 per cent. Therefore, the American operator is at a disadvantage of 18 per cent of the $1.010.000 or $181,000 per year over the foreign owner, merely on account of the increased cost of building of the American ship.

Thirdly, ships under American registry carry more men and pay higher wages than foreign ships.

Capt. Robert Dollar recently said in commenting on the disadvantages of the American merchant marine: By the requirements of the seaman's act an American ship of a certain size had to carry 47 men whose wages were .$3.270, while a British steamer of practically the same size had a crew of 40 men whose wages were $1,308, and a Japanese steamer carried 36 men and paid $777 in wages.

Fourthly, the subsistence cost on an American ship is higher than on foreign ships. It costs 60 cents per day per man to feed American seamen as against 42 cents per day per man on a British ship. On a ship of the kind above described this difference amounts to $2118 per month.

The higher fixed charges, plus the higher wages paid, in addition to the higher cost of subsistence, put the American shipowner at a disadvantage of about $195,000 Imt year, as compared with a British shipowner operating a ship of identical size, type, and speed.

On a Dieselized ship the difference amounts to about $250,000 per year.

Another disadvantage of the American merchant marine is the measurement of our vessels under United States law.

Whenever an American ship goes into a foreign port she has to pay pilotage, harbor dues, and so forth, assessed on her tonnage, and this amounts to 20 to 30 per cent more than for her foreign competitors.

Our Government during the war built some 100 ships according to certain specifications. The British measurement of these ships was 3.420 tons, the American measurement 4,283 tons, a difference of 803 tons or approximately 25 per cent.

To further illustrate this disadvantage, the Dollar-round-theworld ships entering Shanghai have to pay $1,932 in dues. A similar foreign ship would pay about $500 less. General Goethals is authority for the statement that the ordinary American ship passing through the Panama Canal has to pay $500 more than the ships of other nations.

Not only by our laws have we put our privately owned merchant marine at a great disadvantage, but the fruited States Government is maintaining to-day various services at the expense of the taxpayers which unfairly compete with privately owned ships. Examples of these are the Panama transport service and the Army transport service.

The Panama Railroad Co. operates the Panama transport service, and it operates 11 vessels, 7 of which are operated in the New York-Cristobal-Haiti trade and are in direct competition with privately owned ships, and in addition to this Government-owned tonnage, the transport service has chartered other vessels. The latest figures show that out of a total of 221.9!)!) tons of freight and 9,990 passengers carried in 1925, 70 per cent of the passengers were carried in chartered ships and 65 per cent of the cargo was carried in chartered ships. In (.ther words, the 60.000 tons of ships, valued at $(i,(X)0.()QO, operated by the Panama Transport Co., carried 80,000 tons of freight and 2.600 passengers. This line now has pending a request to build several new vessels for its service.

The United States Army transport service has 10 ships, comprising 06,012 dead-weight tons. Seven of these ships are combination freight and passenger ships, one cable ship, mid two freight vessels, iiiul are engaged in carrying freight and passengers from San Francisco and New York to Panama, Honolulu, and Manila. These ships are largely in competition with privately owned tonnage, and carry passengers and freight at less than the current freight and passenger rates, while there is ample available tonnage under private ownership to meet the necessities of the Army transport service. While it may be observed that the United States Army transport service was used primarily for the purpose of carrying troops and munitions, and during a national emergency is needed, yet during our war the service had to be augmented by privately owned ships. In fact, the service never did meet, to any large degree at least, the duty imposed upon it. These emergencies are now over and the carrying of troops and munitions in times of peace should be the function of the privately owned tonnage, and if this tonnage is not encouraged there will be no adequate private tonnage available in case of a national emergency, as the history of the past has amply demonstrated.

Our citizens lack loyalty to our American merchant marine. They hire foreign vessels to carry their freight and travel on foreign lines. Nationals of other countries are loyal to ships flying their flag.

An American merchant marine is an absolute necessity in time of war. When the World War broke out we hud no ships to transport soldiers or supplies. General Pershing sent out an appeal: "Build ships, ships, and more ships," and to answer that appeal the United States had to spend $3,000,000.000 in a hurried shipbuilding program, while Great Britain did not have to build a merchant ship.

After the World War started our commerce suffered considerably. Foreign ships were withdrawn from regular services and used for war purposes, and we had no ships of our own to render the service.

During the recent coal strike in England our commerce was again threatened. English ships were withdrawn from regular commercial service to carry coal.

We can not commandeer foreign ships in time of war. We can take only those flying our fliig. Think of our humiliating position when President Roosevelt ordered our Battle Fleet to go around the world and we had to hire foreign ships to furnish the fleet with coal, ns we did not have ships flying the American flag for the purpose. Fine siiectacle! Fine battleships, but no way to keep them supplied with fuel. Can we afford to get into that condition again and be the laughingstock of the world?

All will agree that we can not long continue to be a truly great country without an American merchant marine.

The merchant marine net of 1928 gives certain aids to American .shipping.

It provides for loans by the Government in an amount equal to three-fourths tliB value of the ship for a period of 20 years at n rate of interest at which the Government itself can borrow the money.

It also permits the Postmaster General to enter into 10-year contracts for the carrying of our mails. This will insure a definite income to such lines as secure these contracts.

The bill does but little for ships that can not get mail contracts, particularly cargo ships. True, they can borrow money to help build the ships, but. there is no aid to take up the difference in cost of fixed charges, wage, and subsistence costs.

We have greatly increased our production in this country and must seek world markets for our surplus of both agricultural and manufactured products. Foreign ships give preference in carrying products of their own countries. We must have our own ships to protect us in our foreign trade.

While the act does something for American shipping, I feel we should go further. We should do something particularly for our cargo ships.

COMPENSATION FOR DISABILITY OR DEATH OF EMPLOYEES IN INTERSTATE OR FOREIGN AIR COMMERCE

Mr. L.AGUAUDIA. 5Ir. Speaker, I ask unanimous consent to extend iny remarks in the Record on the question of the employer's liability in interstate air commerce.

The SPEAKER. Is there objection to the request of the gentleman from New York?

There was no objection.

Mr. Laguaudia. Mr. Speaker, under leave to extend my remarks on H. R. 13782. a bill to provide compensation for disability or death resulting from injury to employees in interstate or foreign air commerce, I desire to file herewith a statement showing the necessity for such legislation. The matter was first called to my attention by Ethelbert Stewart, Chief nf ihe Bureau of Labor Statistics of the Department of Labor. I need not point out that interstate air commerce has taken such rapid strides, that it is now long past the experimental stage and firmly and permanently established in this country. The air mail celebrated its tenth anniversary but a few days ago. What 10 years ago was a mere experiment over a short distance to-day is a daily unfailing transcontinental service.

The only way that persons employed in interstate air commerce can be protected is by making applicable the longshoremen's and harbor workers' compensation law which was enacted only last year. I am sure that after the experience in State employers' liability laws and the decisions excepting persons employed in interstate commerce from the State laws it will not be necessary to wait many years before giving proper protection to these people.

Mr. Daniel F. Callahan. in charge of the law division of the Labor Department, has prepared a splendid memorandum on the subject as well as a brief review of the cases in point on the subject of injuries sustained by employees whose work is in connection with interstate commerce:

MEMORANDUM OF WORKMEN'S COMPENSATION COVERAGE OF AVIATION EMPLOYEES

By Daniel F. Callahnn

The Federal Government has power over interstate commerce. In tbe absence of Federal legislation the .laws of the States control in the regulation Of the liability of employers for injuries to their employees engaged in interstate air commerce. The Federal Government has not acted. The Federal Government has enacted the Federal employers' liability act, but this act is limited to interstate railroads aud their employees.

Within the past few years there has developed in the United States, and there is now fast developing, an important clans of persons engaged in interstate air commerce. These persons are not at the present time covered by any Federal laws with regard to the employers' liability for injury to their employees. Because of the nature of air commerce, confusion exists in the minds of State officials administering workmen's compensation us to the Slate's jurisdiction. The result is that in many ciisea injuries and dentils of persons employed in aviation occupations are followed by no relief whatsoever to such injured per»on» or decedent's dependents.

The cause of the confusion in the minds of State officials Is apparent from a recital of the farts inherent in this modern industry. Let us suppose a corporation in organized in the State of Delaware for the purpose of <*iigiii.'inj; in aviation in interstate air commerce. Principal offices are opened in the State of New York. Employers obtain an airmail contract from Washington and send ;m offer of employment to an nvir.tor \\ht> at the time is residing in Chirauo. Thi- aviator accept.s employment by telegram, .sending such acceptance from St. Louis where

he happens to lie the day after he received the offer. He Is notified nt Louisville, Ky.. the following day to report for duty at Minneapolis to relieve a pilot who has started taking a plane from a point in Ontario, Canada, to Houston, Tex., to put it In the air mail service and he is instructed to fly such plane from Minneapolis to Kansas City, Kans.. and there turn it over to a third pilot who will continue the trip to Houston.

While flying over the State of Iowa the engine drops out of the plane, the plane falls and the aviator is instantly killed. The deceased pilot's widow is left penniless and seeks to obtain compensation or damages and wishes to know what State law applies and In what State she will start proceedings to obtain an award for compensation or damages. In determining what State law applies we may simplify the problem by merely asking where the contract waa made, or where he was working when death occurred. If we agree that the contract waa made nt the place where he sent the telegram accepting the employment, the Missouri law might apply, although the pilot was only In the State for one hour, had no intention of remaining, and had no Intention of doing any work for his employer in that State, and although employer had no assets In the State of Missouri and never intended that any plane belonging to him should ever fly over or land in the State of Missouri. If the law of the place where tho accident occurred applies we have the application of law of a State in which neither the employer nor the employee intended to touch land, have any assets or do any business, but merely intended to pass over. Many State laws have provisions excluding certain employees engaged in interstate commerce whether covered by the Federal law or not, while other compensation laws have extraterritoriality provisions whlcli may or may not include persons employed In the State or outside the State, depending on where the contract of employment was made, or Inside or outside the State, depending on where the injury occurred. In each case the persons administering local workmen's compensation, laws hesitate in the application of the workmen's compensation law. The employer is outside their jurisdiction. There are no assets of employer within their jurisdiction. The pilot was the only person employed by such employer within their jurisdiction. The pilot might be considered a casual employee In that he migbt have been employed only forgone trip. The pilot migbt have been the only employee of the employer.

The employment or work done may have originated inside or outside their jurisdiction, or was to be completed inside or outside their jurisdiction, or the State waa merely a strip of territory over which tbe pilot intended to fly and never touch. In any one of these cases tbe authorities may refuse to apply the local workmen's compensation laws. To add to the confusion many States do not have workmen's compensation boards, but provide for court procedure. This results in long delay, due to appeals on questions of jurisdiction, with the odds all in favor of the employer if he Is playing for time, as at the present time many employers are not responsible parties, In many cases corporations only owning one or two planes. It la very possible that an accident may ruin financially the owner. In that case the problem Is further complicated by .bankruptcy or receivership. Workmen's compensation laws allow a minimum amount to injured persons or their dependents, doing away with the old system of allowing a large percentage of damages to an attorney in the event he is successful in his suit for damages. The purpose of the compensation laws is defeated IE the questions of law developed are complicated, if witnesses must be obtained from distant points, and the cost involved amounto to more than tbe award eventually made, if made. If by chance it is decided that no compensation law applies, because no law exists where the contract was made, or the law does not cover the pilot because tbe compensation is elective rather than compulsory, or does not cover employees where only one employee is employed, where the employee is a casual employee, where the employer is outside the State, or where the injury occurs outside the State, or where the work to be done is outside tbe State, or where the employment is interstate commerce, or where the contract of employment is made outside the State, or for some other reason, the pilot or his dependents must re.sort to a common-law suit for damnge-s. In this event the common-law defenses of assumption of risk, contributory negligence, and the fellow-servant rule would, in many cases, mean that the suit for damages would not be successful. Tho injured pilot aud bis dependents would be left a burden on society in many eases.

If the longshoremen's act was extended to cover persons employed in interstate air commerce we would have a compulsory law with adequate protection against the financial instability of the employer. We would have a 1'edernl uniform system of administration already in existence ;ind operating etliciently. Wo would eliminate most questions of the Jurisdiction whether of substantive law or procedure as in most cases one law and one procedure only could be followed. We would have stunt flying reduced, commercial flying put on a more business-like basis, safety requirements more possible of enforcement, and thoughtful consideration and protection given to those persons and their dependi-nls who are developing our aviation. The Federal law would cover pilots and all-around mechanics or others directly employed in connection with the Interstate movement of tbe pianos.

MEMORANDUM OS PERSONS COVERED BY TH1 AIB COMMERCE EMPLOYERS' WORKMEN'S COMPENSATION BILL

The bill provides a uniform system of workmen's compensation coverage for employees engaged in interstate or foreign air commerce. It covers any person injured while engaged in interstate air commerce or In work so closely related to It as to be practically a part of it. Besides pilots the bill covers all ground mechanics and persons working in or about an airport, whose services in intrastate and interstate air commerce are such that the services can not be separated in duty aud responsibility.

In deciding whether any particular employee Is engaged in interstate air commerce and tberetore subject to the terms of the bill, no precise rule which would enable an instant and undisputed application in all cases has been laid down. The situation is the same as that which exists under the Federal employers' liability acts covering Interstate railroad employees, but decisions of courts have resulted In rules under which it is fairly easy to determine in the greatest number of cases whether an employee is subject to the Federal act. These rules may be summarized as follows:

If the employee was injured or killed while doing—

1. Interstate work; or

2. Intrastate work Bo closely connected with interstate air commerce as to be u part of it; or

3. Intrastate and interstate work with no interval of time between the commerces separating the duties; or

4. Intrastate and interstate work which could not be separated in duty and responsibility—

The employer and the employee would be covered by the bill.

This means that practically all pilots and ground mechanics, signalmen, guards, clerks, and miscellaneous interstate air commerce nir field employees would be covered by the bill.

Ileference here may be made to several decisions by the Supreme Court of the United States in cases arising out of the Federal employers' liability acts, which cases would control in construing the bill to find who is covered by it.

In the case of Pedcrson i\ Delaware, Lackawanna & Western Railway Co. (229 U. S. 140) it was held that one carrying bolts to be used In repairing an interstate railroad bridge and who was Injured by an Interstate train was entitled to invoke the employers' liability act. In other words, that one employed upon an instrumentality of Interstate commerce was employed in interstate commerce. In that case it was said, "The true test always Is: Is the work in question a part of the interstate commerce in which the carrier is engaged?" The court also said that the questions which naturally arise are, "Was that work being done independently of interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of itt"

In the case of Southern Railway Co. v. Puckett (244 C. S. 571), a car inspector going to the relief of another employee stumbled on some large clinkers In his path while carrying a Jack for raising a derailed car. It was decided tliat be was engaged in interstate commerce, the purpose being to open the way for interstate transportation.

In the case of Eric Railroad Co. v. Collins (253 t*. S. 77), an employee was assigned to duty In the signal tower and In the pump house of a railroad and his duties were discharged In both interstate and intrastate commerce, and as there was no interval between the commerces that separated the duties, the employee was engaged in interstate commerce within the meaning of the employers' liability act.

In the case of Philadelphia & Reading Railroad Co. v. Dl Donate, (256 U. S. 327) the employee was employed as a crossing watchman at a particular public crossing and while acting in the course of employment and while Sagging a train was killed. In that case It was said that the service of the flagman concerned the safety of both Interstate and intrastate commerce and to separate his dntles by movements of time or particular Incidents of its exercise would be to destroy its unity and commit It to confused controversy, and as the services could not be separated in duty and responsibility the employee was covered by the Federal employers' liability act.

In the cose of Southern Pacific Railroad Co. r. Industrial Accident Commission (251 U. S. 2r>9) an electric lineman received an electric shock while wiping insulators which actually supported a wire which carried electric current used by the railroad ns power to move its cars engaged in both interstate and intrastate commerce. The court decided that the employee was covered by the Federal employers' liability act, because at the time of the injury the employee was engaged In work so closely connected with interstate transportation as to be an essential part of It.

In the Philadelphia, Baltimore & Washington Railroad Co. v. Smith (250 U. S. 101), an employee of an interstate railroad, whose duties were to cook the meals, make the beds, etc., for a gang of bridge carpenters in a camp car which was provided and moved from place to place along the railroad line to facilitate their work in repairing bridges, was Injured while occupied in cooking a meal for the carpenters and himself while the carpenters were repairing a bridge In the vicinity. The court said that if he had brought meals to the carpenters employed on the bridge daily it hardly would be questioned that bis

work In so doing was a part of theirs, Bud as what he was In fact doing was the same in kind, It did not differ materially in degree, and therefore he was employed, as they were, In interstate commerce within the meaning of the employers' liability act.

In the case of Klnzell v. Chicago, Milwaukee & St. Paul Railroad Co. (250 TJ. S. 130), an employee in charge of a car used in removing earth and stones from between the rails of a railroad track was injured while dumping earth to replace a railroad trestle used In interstate commerce, and he was held to be covered by the Federal employers' liability act. The Supreme Court reversed the State court which decided that the employment was not covered by the Federal employers' liability act, because the construction or fllling-in work was such that it was new construction, and that such fllling-in or construction work did not become a part of the railroad until it was completed and the track placed upon such fllled-ln land Instead of on the trestle. The Supreme Court said that the work had clearly become a part of the interstate railway when the employee was injured, for it had reached the stage where it required the work of men and machinery to keep the interstate tracks clear during further construction, and the -work of such men was therefore not only concerned with but was an intimate and Integral part of the conduct of interstate transportation over the bridge.

In'the case of Walsh t:. New York, New Haven, & Hartford Railroad Co. (223 U. S. 1), a car-repair workman injured while replacing a drawbar in a car then in use in interstate commerce was engaged In interstate commerce at the time he was injured and covered by the Federal employers' liability act.

In the case of Norfolk & Western Railway t'. Earnest (229 U. S. 114), a fireman injured while walking ahead of and piloting through several switches a locomotive which was to be attached to an interstate train and to assist in moving the same up a grade, was covered by the Federal employers' liability act.

In the case of St. Louis, San Francisco t Texas Railway t,-. Scale (229 U. S. 156), a clerk was injured while on his way through a railroad yard to meet an inbound interstate freight train and to mark the cars so that the switching crew would know what to do with them when breaking up the train, was held to be covered by the Federal employers' liability act.

In the case of North Carolina Railroad v. Zachary (232 U. S. 248), a fireman was Injured after having prepared his engine for a trip in interstate commerce, and being about to start on his run, was walking across adjacent tracks on an errand consistent with his duties.

In Shanks v. Delaware, Lackawanna & Western Railroad (239 U. S. 557), where an employee Injured while taking down and putting up flxtures in a machine shop, which machine shop was used for repairing locomotives used in both interstate and Intrastate transportation, it was held that the connection between the fixture and interstate transportation was remote at best, for the only function of the fixture was to communicate power to machinery used in repairing parts of engines, some of which were used in Interstate transportation, and therefore the employee was not engaged In interstate commerce, as the work was too remote from interstate transportation to be practically a part of it.

In the case of Delaware, Lackawanna & Western Railroad v. YurkonH (238 U. S. 439), where an employee was injured while In and about the performance of his duties, preparing and setting off a charge of dynamite for the purpose of blasting coal, the court held that the mere fact that the coal might be or was intended to be used in the conduct of interstate commerce after the same was mined and transported did not make the injury one received by the employee while he was engaged in interstate commerce.

In the case of Baltimore & Ohio Southern Railroad Co. c. Bnrtcli (263 U. S. 540), where an employee injured while assisting in the unloading at the destination of an interstate shipment, the employment was held to be so closely related to Interstate commerce as to be practically a part of It.

CONGRESS AND THE FAKMEK

Mr. JOHNSON of Oklahoma. Mr. Speaker, I ask unanimous consent to address the House for one minute.

The SPEAKER. The gentleman from Oklahoma asks unanimous consent to address the House for one minute. Is there objection?

There was no objection.

Mr. JOHNSON of Oklahoma. Mr. Speaker and colleagues of the House, to my mind the most important problem considered by the session of Congress just ending has l>eeu farm relief. Both on this floor and in the corridors of the Capitol the all-important topic of discussion has been relief for agriculture. A great many of you have sincerely wanted to five the farmer relief, but I am afraid a number of you have not wanted to pass any legislation to aid the farmer for fear that this legislation might force the special interests you gentlemen represent to surrender some of the special privileges granted by Congress.

But some of you gentlemen have been afraid to meet the issue squarely and have tried to make the fanner believe he

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