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As a very specific illustration of the congressional policy as to the manner of promulgating technical regulations, I quote from title 49, section 551, United States Code, where the Congress has afforded the Civil Aeronautics Board, with respect to aircraft, authority similar to that proposed by this bill. Under section 551 (7) the Board is empowered not only to prescribe but to revise from time to time,
rules for the prevention of collisions between aircraft, and between aircraft and land or water vehicles."
This act, passed in 1938, is, in principle, an exact parallel to the procedure proposed by the present bill.
There were questions asked yesterday as to the original form of the bill, as prepared in the Treasury Department, prior to the conference held at the Bureau of the Budget on January 18 in an effort to resolve the problems of
the impact of the legislation on various Government departments. There was, I think, created an impression that the original bill was restricted to promulgating the 1948 Convention and that such restriction was eliminated on the representations of other Government departments. Any such inference is very much in error.
I attended that session, which, as I said earlier, was my only recent contact with the matter until these hearings. What was, in fact, stricken out on January 18, 1951, from the draft was something quite different. The stricken language comprised these words, " drafted in consultation with and accepted by other maritime nations.” Had these words remained in the bill, then the authority of the President to proclaim any regulations whatever would be conditioned upon the regulations being in the quoted language, “drafted in consultation with and accepted by other maritime nations." This language, if it remained in the bill, could involve extensive litigation, since their legality would be premised on compliance with this condition as to whether the regulations were authorized.
To illustrate the issues which could arise: Do the words "accepted by other maritime nations" include every maritime nation? What would be the situation if some one small country, which could be said to be a maritime nation, failed to adopt the regulations, although the overwhelming majority of maritime countries had done so? The retention of these words would have made the bill a fruitful source of litigation when one interest wished to avoid the burden of noncompliance with a certain rule. This restriction was, from the viewpoint of avoiding litigation and providing the certainty so essential in collision rules, very wisely, in my view, omitted from the draft which is now H. R. 3670.
What I have said summarizes the considerations, particularly the expression of congressional intent as set forth in the 1938 Civil Aeronautics Board Act, which led the Navy Department representatives to view that the procedure of this bill is not only effective, is supported by the precedent, but is in full accord with congressional procedures for dealing with the technical regulations, which are promulgated by many administrative bodies, particularly in view of the Administrative Procedure Act requirements which recognize that such regulations will be issued.
Now I refer to one specific factor, which made the structure of H. R. 3670 particularly advantageous in coping with potential Navy Department problems. This is a matter of very substantial importance. The short of the matter is that, if the present bill is amended
to limit the authority to prescribe only the Convention regulations of 1948, then a supplemental section in the bill is imperative to enable the Navy Department to meet potential emergency situations. Such an amendment was not previously suggested, for, if there were no restriction on the power to issue regulations except those of the Administrative Procedure Act, then this problem could be met administratively.
This Navy Department problem lies in the fact that the World War II practice of "black-out” or not exhibiting lights or sounding signals has no authorization in the International Rules. Those rules require the exhibition of lights. The Secretary of the Navy's power to prescribe black-out in World War II was rested on dubious provisions of the War Powers Act. However, since the vessels of the Allied Nations in World War II operated under universal black-out orders, the problem, as a practical matter, arose only when a blacked-out American or Allied vessel was in collision with a lighted neutral. The lighted neutral was in compliance with the International Rules. The blacked-out vessel was in violation of the statute and thus at fault. The legal effect of this situation is illustrated by Watts v. U.S. (123 Fed. 105). This case, which arose in the Spanish-American War, involved a collision off Fire Island between the blacked-out United States cruiser Columbia and the British steamship Foscolia. The Foscolia was properly lighted. The Navy cruiser was held solely at fault because of the absence of any statute authorizing the suspension of lights on the warship. That situation prevails today under the International Rules.
If there should by chance develop a situation where American vessels were blacked out and there were a large number of vessels of neutral countries exhibiting lights in strict compliance with the International Rules, then the United States would experience a heavy burden in collision litigation by reason of compliance with black-out orders.
To avoid this potential litigation issue, the removal from this bill of any right to issue supplemental regulations under the International Rules would necessitate the addition of a section to this bill, which would give legal sanction to black-out or orders to refrain from sounding signals, and so forth, under the International Rules. Such section would read as follows:
SEC. 5. That during time of war, combatant activities, or any warlike operations, whether there be a declaration of war or not, the exhibition of any light or sounding of any signal, required by statute, on board a public vessel of the United States, or a vessel documented under the laws of the United States or chartered to or operated for the account of the United States, may be suspended whenever the Secretary of the Navy or his designee shall issue an order precluding, on board such vessels, in whole or in part under specified conditions or in specified localities, the exhibition of lights or sounding of signals.
Accordingly, if this bill is restricted to promulgating the 1948 Convention, there is urgently recommended the enactment of this additional section, to avoid imposing on the United States in collision litigation, the burden of having its vessels held legally at fault in the event of a collision with a lighted neutral ship or one complying with the International Rules.
To conclude this statement, which is longer than I had expected to make, the matter before the committee is a choice between two procedures, which have been used at various times in putting into effect rules which relate to navigation. Admittedly, either procedure could be used. I have outlined the considerations which led to the conclusion that the procedure in the pending legislation is particularly adapted to meet the Navy Department's special problems, apart from its seeming to accord with the intent of the Congress as to the manner for handling the issuance of technical regulations. I stress, however, that, if the bill is restricted or if there is adopted another approach for putting the Convention into effect, then it is imperative the amendment, which I have set forth, be included to avoid potential legal liabilities of the United States arising out of the black-out of vessels, and so forth, as a defensive measure.
On further reflection this morning I would go further and urge the inclusion of this section in the bill in any event.
The CHAIRMAN. The statement filed with the clerk yesterday by Mr. Avery, and referred to at the outset of his statement this morning, will be made part of his statement and inserted in the record at the same place where the statement that he has just read is inserted.
(The statement of Mr. Avery referred to is as follows:)
I am Myron H. Avery, Director of the Admiralty Division in the Office of the Judge Advocate General of the Navy Department, and I have been in charge of the Navy Department's admiralty-law claims matters since 1942.
The report from the Department of Defense on this legislation was referred to the Navy Department. The obtaining of the views of the interested offices in the Defense Department has not yet been completed so the comment of this statement is an expression of Navy Department views rather than constituting an official position of the Department of Defense.
The Navy Department's views accord with those expressed by the other interested Government departments as to the advisability of using the medium of a Presidential proclamation to bring into effect the amendments to the International Rules, which were adopted at the London Conference in June 1948. This procedure is considered to possess advantages over the method of a statutory enactment of the specific rules in providing not only greater flexibility in dealing with the present amendments but establishes a procedure for dealing with future amendments. The procedure for putting into effect navigation rules through administrative action is not novel to the United States as is illustrated by the existence of the supplemental set of Pilot Rules which amend the Inland, the Great Lakes, and Western River Rules, respectively.
Section 2 of the proposed bill is merely a continuation of the existing statutory authority which was enacted on December 3, 1945, as Public Law 239, Seventyninth Congress, first session. This legislation was obtained to avoid a situation where literal compliance with the rules is impossible by reason of the special construction of the naval vessel. Instances are airplane carriers, submarines, and certain types of landing craft. Under the proposed international rule 13 (b), each Government concerned is permitted to put into effect procedures similar to that involved in section 2 of the proposed bill.
The remaining sections of the bill are not of primary concern to the Navy Department.
The Navy Department considers that the underlying basis of this bill—that is, having the navigation rules issued through the proclaiming of regulationspossesses decided advantage, apart from the fact that its flexibility would permit meeting unexpected developments should there develop any necessity to return to any of the navigational procedures in effect in World War II, such as black-out, and so forth.
The CHAIRMAN. Is there any question at all, Mr. Avery, as to the legality of the section which you have mentioned which truncates the responsibility of the United States toward the International Convention in the event that the President is authorized to accept the rules laid down by the Convention?
Mr. Avery. No, sir. If the right to suspend rests on the same basis as the requirement that the lights be exhibited and that the signals be sounded, then there would be no issue as to the legality, Other sets of rules have such requirements, but the International Rules do not.
The CHAIRMAN. Any questions, gentlemen?
Mr. Nelson. On the point you are making there, why was not such a provision included in the International Convention when it was first arrived at?
Mr. AVERY. Back in 1890?
Mr. Nelson. No. This one you are suggesting, that we give the President power to put it into effect. There is no such provision in the International Agreement, is there?
Mr. AVERY. That is correct.
Mr. NELSON. Then you think the United States by unilateral action can violate the whole agreement?
Mr. AVERY. That is what occurred in World War II. The Secretary of the Navy issued orders that all American vessels should operate blacked-out, and so did all allied countries.
Mr. Nelson. Have we had any suits by Allies and neutrals arising out of that?
Mr. Avery. Yes. The Navy Department had one instance, I recall; that was settled without litigation.
Mr. Nelson. But you did settle it?
Mr. Nelson. But you still think that by unilateral action, after we have agreed to this Convention, that we can negate all the terms by just the action of the United States alone?
Mr. Avery. If by statute we impose the requirement that these lights be exhibited and that would be the basis on which it would rest, in the same manner by statute we can relieve ourselves during time of war of the necessity for exhibiting these lights.
Mr. NELSON. We have to relieve ourselves of that necessity in order to rid ourselves of liability in international law by putting this in the Convention, do we not? We cannot violate a contract by our own action once we have agreed to it and obviate the liability which is set in international law by the Spanish-American War case which
Mr. AVERY. We already have in our Inland Rules, as I pointed out in this case I spoke of here, a specific provision that lights may not be exhibited. That, of course, relates only to vessels that are operating in the inland waters.
Mr. NELSON. Inland waters are not subject to the same rules as international waters, are they?
Mr. AVERY. The Inland Rules and the International Rules cover different areas.
Mr. Nelson. Are you not in effect, by suggesting this provision, suggesting that we put a provision in the International Convention to start the whole process all over again?
Mr. AVERY. Not necessarily.
Mr. Nelson. Is not that the only way we can legally get out of liability for blacked-out ships?
Mr. Avery. No, sir. Coming back to my basic proposal that if the requirement that the lights be exhibited rests on a statute, by the
same medium you can relieve yourself of the legal obligation to exhibit those lights.
Mr. Nelson. In other words, if we put this amendment into this bill, and accept the International Rules and Regulations, we are in effect saying to the other nations of the Convention that "we are accepting your rules and regulations, which are already agreed to, with this condition."
Mr. Avery. That in time of war, where a certain situation exists
Mr. Nelson. Then it has to go back to them to have them agree to the situation, so that it will be a contract where there is a meeting of the minds. Is that right?
Mr. AVERY. No, sir. Because this is not a matter of bringing the. rules into effect through a treaty or by signing a convention. The basis of the International Rules, although it is referred to as an “international convention,” in the United States is statutory.
Mr. Nelson. Suppose we have a war and order a "black-out.” If some American warship runs into a neutral that is carrying a light as described by this international convention, and it comes up before the court, what will the United States say? We agreed to the international convention, but subject to this condition?
Mr. AVERY. If our “black-out” orders are legal, then we would not be at fault for failure to have exhibited the lights required under the international convention.
Mr. Nelson. I still think, Mr. Avery, you are saying we agreed to this convention, but on this condition. Now, when you make a conditional acceptance of an offer, then you have to go back to the offeree and have a meeting of the minds before it is a binding agreement.
Mr. AVERY. I think our basic difference of view lies in the fact that it is not this meeting in London which has brought the new rules into existence. It is the fact that each country takes action within that country to promulgate the rules.
I readily concede that as a matter of policy you might feel disposed to adopt the view that the United States in defending itself in time of war would pay to a neutral any damage occasioned to that neutral by reason of the war measures adopted by the United States.
Mr. Nelson. I thought you said that during World War II you acted under the War Powers Act, and yet you settled the case. That was statutory; was it not?
Mr. AVERY. But the particular situation involved other complications as well.
Mr. Nelson. Are you saying then that one of the reasons we should use these methods is to have substantial unanimity? That means each nation in turn could accept the rules as set forth verbatim just the way they are. Is that not true?
Mr. AVERY. Unanimity is this, sir. Rule 38 says if I sound one blast I mean that I am directing my course to the right. If the British rule is to sound more than one blast, them
Mr. Nelson. I do not like to interrupt you, but I do not think we need to go into that. The unanimity you use here to justify delegating these authorities to the President is unanimity by every nation in accepting the same regulations verbatim; is it not?
Mr. AVERY. Unanimity means the vessels would operate under common rules.