Mr. ALLEN. Are there any criminal penalties invoked for the breach of any of the international rules?

Mr. HARRISON. No, sir.

Mr. ALLEN. Are there any regulations that the President might make which might be enforced by criminal penalties?

Mr. HARRISON. I think there are; yes, sir. There are some in the Coast Guard.

Mr. ALLEN. Is there any reason why, under this language, the President might not make other regulations enforceable by the infliction of a criminal penalty?

Mr. HARRISON. Other regulations covering a different subject matter?

Mr. ALLEN. Under the language of this bill, yes, sir; so long as it provides for preventing collisions on the high seas.

Mr. HARRISON. I would say not.

Mr. ALLEN. You say there is nothing to prevent him?

Mr. HARRISON. He could not issue rules which would have sanctions of criminal enforcement.

Mr. ALLEN. Where do you find the authority or law that would restrain him?

Mr. HARRISON. It is a generally accepted principle, I think, that unless Congress by law provides a sanction in the statute giving the officer authority to promulgate rules, the officer promulgating the rules could not set up the sanction himself. There must be some law that would serve as a basis for it.

Mr. ALLEN. Is it not true that in other regulations issued, particularly in price control and matters of that type some years ago, criminal penalties followed the violation of the regulations?

Mr. HARRISON. I think you will find, though, in those statutes, provisions to the effect that for violation of any rule issued by the President or by the authority concerned a sanction of some sort shall be applied or may be applied.

Mr. ALLEN. Can you tell me how the former international rules were adopted by this country?

Mr. HARRISON. They were adopted by statute enacted by Congress in 1890.

Mr. ALLEN. There is obviously no reason why the same procedure could not be followed again with relationship to this particular change, is there?

Mr. HARRISON. It could be done; yes, sir.

Mr. ALLEN. And insofar as the present problem of adopting the present regulations, is there any reason why the former procedure should not be involved if that is the only action you wish to make effective?

Mr. HARRISON. I would appreciate it if that question were asked of other representatives, Mr. Congressman.

Mr. ALLEN. I appreciate your implied answer. Thank you, Mr.

Chairman.

The CHAIRMAN. The subcommittee will adjourn until 10 o'clock tomorrow morning.

(Whereupon, at 11:15 a. m. the hearing was adjourned, to reconvene at 10 a. m. May 10, 1951.)

REGULATIONS FOR PREVENTING COLLISIONS AT SEA

THURSDAY, MAY 10, 1951

SUBCOMMITTEE ON MARITIME AFFAIRS OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES, HOUSE OF REPRESENTATIVES,

Washington, D. C. The subcommittee met, pursuant to adjournment, at 10 a. m., in room 219, Old House Office Building, Hon. Edward J. Hart (chairman) presiding.

Present: Representatives Edward J. Hart, Frank W. Boykin, Charles E. Bennett, John F. Shelley, Edward J. Robeson, Jr., Alvin F. Weichel, John J. Allen, Jr., Charles P. Nelson, and John C. Butler. The CHAIRMAN. The subcommittee will please come to order.

Do you want Mr. Harrison or Commander Webb to return to the stand?

Mr. SHELLEY. No.

Mr. ALLEN. No. It seems to me I have the answer to the last question I wanted to ask him.

The CHAIRMAN. I thought you had.

Is Mr. Avery here, please?

Mr. AVERY. Yes, sir.

The CHAIRMAN. Will you please step forward and give your full name and title to the reporter?

STATEMENT OF MYRON H. AVERY, DIRECTOR, ADMIRALTY DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL, NAVY DEPARTMENT

Mr. AVERY. I am Myron H. Avery, Director of the Admiralty Division, in the Office of the Judge Advocate General, Navy Depart

ment.

I have deposited with the committee clerk copies of my statement, and with your permission I will proceed to read it.

The CHAIRMAN. Your statement is now being distributed, and we will be glad to have you proceed, Mr. Avery.

Mr. AVERY. Mr. Chairman and committee members, I filed vesterday with the committee clerk a statement with respect to this legislation. That statement indicated that the comment on this legislation had not been cleared with all the interested offices in the Defense Department and, accordingly, the statement was only an expression of Navy Department views rather than constituting the official position of the Department of Defense.

Yesterday's statement set forth the Navy Department's concurrence in the procedure proposed for putting into effect the Interna

47

tional Rules adopted at the London Conference in June 1948. It indicated that the major item of Navy Department concern was section 2 of the bill, which continues existing statutory authority (act of Dec. 3, 1945; Public Law 239, 79th Cong., 1st sess.; 33 U. S. C. 360). It also pointed out that, under the proposed new International Rule 13 (b), any government may put into effect similar procedures to care for its problems of naval vessels of special construction.

However, I think it will be a saving of the committee's time for me to request that the statement, filed yesterday, be made a part of the record and for me to indicate very specifically at this time why the procedure of the proposed bill is particularly adapted to meet Navy Department problems and to specify the considerations which led to the view that the proclamation procedure has, for the Navy Department, advantages superior to the enactment, as a specific statute, of all the 1948 Revised International Rules or to the limitation of this legislation to the condition that the President shall have authority only to promulgate the specific International Rules adopted at the 1948 London Conference.

Admiral O'Neill has testified as to the extended hearings with the representatives of American shipowners, admiralty lawyers, and so forth, which preceded the convention in order to determine what should constitute the American recommendations to the convention. I was not a member of that committee, but did deal with the committee, as did Admiral O. S. Colclough, then Judge Advocate General of the Navy, on the point of the necessity of a provision in the new International Rules, which would exempt naval vessels of special construction where the impossible literal compliance with the rules could impose civil liabilities on the United States in collision cases. That provision is incorporated in the proposed convention as article 13 (b).

I should say, at the outset, that thereafter until the recent Bureau of Budget meeting on 18 January 1951, which I attended, I have had no contact with the matter and have, therefore, no knowledge of the factors or considerations which are involved in the lapse of time between the agreement of the representatives of the various maritime nations in London in 1948 as to the recommended new International Rules and the introduction of the legislation to accomplish their enactment as H. R. 3670 and S. 1182.

Obviously, after the London Conference, there had to be determined the question of how the new International Rules should be put into effect in the United States. There are two possible procedures. One is the procedure of the bill under consideration. The second is an enactment, as a specific statute, of all of the new international collision regulations. Admittedly, either could be used. I wish to stress at the outset that the United States has used both of these procedures in bringing into effect navigational rules.

The rules here under discussion, the International Rules, are only one of some eight sets of American navigational rules. There is a separate set of statutory rules covering, respectively, the inland waters. of the United States, the Great Lakes and their tributary waters, and the western rivers. The inland, Great Lakes, and western rivers statutory rules are each, in turn, supplemented by an additional set of rules, promulgated through administrative action. These three sets of administratively promulgated navigational rules appear in the

three Coast Guard pamphlets which I exhibit here. These pamphlets bear the numbers CG-172, CG-184, and CG-169.

A fourth set of administratively promulgated navigational rules is the Department of the Army's Panama Canal Rules, reenacted in

1948.

From the viewpoint of precedents to use at this time, there were the method of statutory enactment as occurred with International Rules in 1890, and the four later instances of the promulgation of the Pilot Rules and the Panama Canal Rules. Thus, as to the most frequent of the recent procedures, the score favors the procedure here under consideration.

I wish to make very clear that the enactment of navigational rules, other than by express statute, is not a novel practice in the United States.

Neither is the procedure of this bill without precedent in other maritime countries. The British adoption of the existing International Rules, which have been in effect since 1890, rests specifically upon their being promulgated as collision regulations pursuant to broad statutory authority-as is Canadian practice. Since yesterday I have not had an opportunity to check the situation in other countries which have large maritime interests. My general information, however, is that in most of these countries the International Rules have come into effect through the medium of promulgation as regulations, rather than as specific statutory enactments.

I wish now to refer to the point urged yesterday that this bill is designed to accomplish a diminution of the legislative prerogatives of the Congress. To the contrary, I urge that the procedure of the bill, in fact, accords with the methods of the Congress for bringing into effect systems of very technical regulations. There are two controlling aspects here. The first is that any regulations promulgated by the President are obviously subject to the provisions of the Administrative Procedure Act (5 U. S. C. 1001 et seq.) with respect to the requirements for hearings, and so forth, before the regulations become effective. The matter would proceed in the same manner as when the Coast Guard effects changes in the three separate sets of Pilot Rules or the Army in the Panama Canal Rules.

The second factor is the most practical aspect that there can be no workable International Rules without complete unanimity. The proposed International Rules occupy 13 pages (173-186) of the State Department publication, International Conference on Safety of Life at Sea (publication No. 3282).

If the matter is dealt with as a specific statute, then the committee hearings would have to consider each specific rule in these 13 pages. In the end, if there is any departure from the 1948 Convention, then there is no longer the uniformity which is the essential to the International Rules. Any variations would result in these rules, which are captioned, "Regulations for Preventing Collisions at Sea," in fact, becoming regulations contributing to collisions if, for instance, the British rules for vessels on the high seas should require some action different from that prescribed by the American rules for American vessels.

Thus, having in mind this controlling aspect of uniformity, the matter seemed one of technical regulations to be dealt with administratively, subject always to the controls prescribed as to hearings, and so forth, by the Administrative Procedure Act.