Mr. NELSON. The same rules?
Mr. AVERY. The same rules.

Mr. NELSON. So, they would have to be the same language. They could not be different in any way.

Mr. AVERY. That is right. One rule has to mean the same thing in the other countries.

Mr. NELSON. Now, we are saying to the nations that have already accepted these rules that we agree under this condition.

Mr. AVERY. We are making very certain that there will be no issue raised as to the black-out policy of World War II.

Mr. ALLEN. Does the gentleman yield?

Mr. NELSON. I yield.

Mr. ALLEN. Following that line, would it not be quite possible, if we adopt the position you suggest and black-out as ordered, that in our courts a foreign vessel would be defeated in an action for damages, while the same foreigner in his own country might prevail in the action for damages, on the same facts?

Mr. AVERY. Of course, if we are dealing with a matter of foreign law, that is a separate issue. One, an American public vessel is not subject to proceedings anywhere except in the United States. Secondly, as a matter of principle, the conduct of the American privately owned vessel should be governed by the laws that control it. That is, a foreign court, in determining whether this vessel has had a proper light or signal exhibited, should apply the American statute.

Mr. NELSON. Mr. Avery, to go on to something else, do you not think there is some difference in citing as a precedent the authority that we might delegate to the Civil Aeronautics Board, for instance, which is a Board created and controlled by Congress, and the authority we might delegate to the President, who is not at all controlled?

Mr. AVERY. I think the difference would be in this respect: That in the delegation of International Rules there is less choice available to the Congress in altering a specific rule. Your problem really is whether you are going to adopt the convention as a whole or not.

With respect to aircraft operating over the United States, it would be very much a different situation, where you might wish a different rule than the Board would have.

I might say this: Some of the problems of this bill arise out of the fact that seaplanes on the water are subject to the navigational rules. I simply attempted to outline the history of the two procedures, with the factors that make it advantageous to the Navy.

Mr. NELSON. Is there any other country in the world, Mr. Avery, that has a constitutional system analogous to ours?

Mr. AVERY. Congressman, I do not think you need that answer from me.

Mr. NELSON. Then what is the validity of citing the practice of other countries?

Mr. AVERY. Simply this: I think that it would be of interest to the committee in its deliberations to have this knowledge.

Mr. NELSON. You cite it as a matter of interest and not as a matter

of precedent?

Mr. AVERY. Of course, sir.

Mr. NELSON. That is all, Mr. Chairman.

Mr. AVERY. And with the thought that I might be interrogated on that point.

The CHAIRMAN. If the United States might make certain conditions with respect to its observance of these general rules adopted at the Conference, then every other country may likewise make certain conditions; may it not?

Mr. AVERY. Yes, sir.

The CHAIRMAN. Then of what avail would be the rules if every country accepts the rules with certain conditions of its own and with modifications of the rules? How could you ever obtain substantial unanimity in the light of that situation?

Mr. AVERY. The type of unanimity which is essential goes to the thing that I spoke of: The type of lights that a vessel that is under way should exhibit; the type of lights that a vessel that is anchored should exhibit; what signals mean. If there is a variation there, then there is confusion and collision.

The CHAIRMAN. But there may be variations in any other aspect of the rules if other countries see fit to adopt them conditionally, as the United States would be doing in the event it passed the statute exempting the United States from liability in the case that in event of war they would be violating the rules.

Might not every other country do the same thing with respect to other provisions of the rules?

Mr. AVERY. Theoretically, yes, sir.

The CHAIRMAN. Why only theoretically?

Mr. AVERY. Because practically, unless there are these war conditions that necessitate the departure from the rules in order to achieve the safety of the vessel involved, it is inconceivable that you would have a variation of the type that would produce confusion in navigation.

The CHAIRMAN. What principle of law is there that says a state of war is the only situation that justifies a departure from the rules?

Mr. AVERY. I would say that it is a question of whether the United States in time of war, and when defending itself, intends to assume legal liability, and so would an American shipowner.

The CHAIRMAN. I understand that perfectly, but some other nation may say in time of peace that it desires to make a departure from the rules and adopt a statute in whatever way their constitution or their customs provide for such adoption, which in itself would be another condition under which they would not subscribe to the agreement. Now, there are 29 nations involved. Suppose each of the 29 nations adopted one or more separate conditions under which they were accepting these rules. The rules themselves might be completely destroyed by the adoption of such exceptions to the rules, or conditions to the adherence to the rules.

Mr. AVERY. I can only say to that, with respect, that I think it highly improbable any such situation would occur.

The CHAIRMAN. So do I, but it is not at all impossible. Lots of things that are highly improbable occur.

Mr. AVERY. Theoretically, it is possible that any country in promulgating these regulations could impose one or more or numerous conditions.

The CHAIRMAN. More than theoretically. Practically any country may do it.

Mr. AVERY. Practically.

The CHAIRMAN. It is probably very remote to think of. It is a very remote occurrence to conceive of, but nevertheless it is not mere theory.

Mr. AVERY. From a practical aspect, there would be no advantage, or no seeming reason for that departure.

The CHAIRMAN. Those in charge of the responsibilities in other countries might think that there was, and they wouldn't care much. about what we thought if they did.

Mr. AVERY. I suppose the best observation on that, sir, is that at the present time my understanding is that the British have been advised that most of these countries have not imposed any condition as to variation from the specifications set out in these 13 pages of rules.

The CHAIRMAN. Is there anything to prevent them from doing it hereafter if they find that the necessities of the situation and the safety of their country require that their adherence to the rules be conditioned by some situation that they may devise in order to protect the welfare of their country?

Mr. AVERY. Theoretically, of course not, sir, just the same as any arrangements may be changed.

The CHAIRMAN. Mr. Weichel.

Mr. WEICHEL. Do you know how many of the 29 nations have accepted up to now?

Mr. AVERY. I am not in the position to answer that.

Mr. WEICHEL. Who would know?

The CHAIRMAN. I think it was stated yesterday that 25 have accepted.

Mr. WEICHEL. Of the 25 that accepted, how many imposed conditions on their acceptance?

Mr. AVERY. None that I know of, sir.

Mr. WEICHEL. Are there some? How recently have you checked it? When you say "None that I know of," have you made an examination of it, or do you not know?

Mr. AVERY. No; I have not. I heard the statement that was made here yesterday as to the number.

Mr. WEICHEL. But you do not know what conditions any of them placed at all. Did any of them place the kind you are talking about here?

Mr. AVERY. Not that I know of.

Mr. WEICHEL. Not that you know of. So that, if there is an authorized acceptance imposing this condition, the International Conference would have to reconvene to accept it; would it not? Mr. AVERY. No, sir.

Mr. WEICHEL. Who makes the acceptance? Who agrees for all of these 29 nations then?

Mr. AVERY. While this thing is referred to as a "convention" or "conference", it comes into existence as a part of the law of the country involved, by a separate act of that country.

Mr. WEICHEL. I understand that. But suppose you are going to agree on a set of rules with reference to collision. You either agree or do not agree. I understand they all have to agree before it becomes effective. Is that correct?

Mr. AVERY. The provision requires that there be compliance from substantially all of the maritime nations.

Mr. WEICHEL. And they have to agree on the same thing; do they not?

Mr. AVERY. As to the particulars of the rules.

Mr. WEICHEL. On the particulars of the rules. If you place a condition, then that is an exception; is it not? Can each one put in all of the exceptions they want to at any time?

Mr. AVERY. Theoretically, there is nothing which would limit a country from imposing a condition or qualification.

Mr. WEICHEL. But practically the rest of them have not, and now you are suggesting that the United States can put in an exception. Is that right?

Mr. AVERY. We are suggesting that the United States not be under legal liability

Mr. WEICHEL. Is that an exception to the Conference? Is that an exception?

Mr. AVERY. There is a period of time when the lights and signalsMr. WEICHEL. No. Is what you are suggesting an exception to the conference? It is; is it not?

Mr. AVERY. It is not an exception to the conference. It is a qualification on the time when these rules would be effective.

Mr. WEICHEL. It is an exception or qualification. Either one. In other words, it is not total agreement; is it?

Mr. AVERY. There is total agreement as to the navigational aspect of these rules.

Mr. WEICHEL. With reference to the suspension, did they agree at the convention they could all suspend any time they felt like it by putting in a clause like this?

Mr. AVERY. The convention did not deal with that problem.

Mr. WEICHEL. Then how are you going to have an agreement on that without reconvening?

Mr. AVERY. That is not an aspect of the rules in themselves.

Mr. WEICHEL. Do you say that by the qualification, or whatever you want to call it, that with reference to damage to a neutral ship that this country would not be liable, without their agreement, or without that country having agreed to accept this qualification?

Mr. AVERY. I say if there were a collision with a lighted neutral and the charge of fault against the public vessel rested on nonexhibition of lights, then if that nonexhibition of lights did not contravene a statute then there would be no legal liability. I have already said that with respect to the inland waters of the United States

Mr. WEICHEL. The inland waters are entirely different. This committee held hearings and reported to the Congress, and the Congress as a matter of law passed everything with reference to inland waters a few years ago. I do not know whether you knew that

or not.

Mr. AVERY. That was a revision, sir, to extend the area in which the inland rules apply. They have been in effect for years.

Mr. WEICHEL. Everything else was changed in this case. There were hearings, and it was changed. So that comparison you make there I do not know whether it is very accurate or not.

However, you claim that you can make an exception to the acceptance of the convention, that if a neutral ship is lighted and the public ship of the United States is not lighted, and you damaged a

neutral ship, that the United States Government would not be liable by its own act in doing that. With reference to suspension of the rule on lights, it would not be liable by its own act in saying that it is suspended.

Mr. AVERY. It is by statute that the United States requires the exhibition of that light. If there is no statute requiring the exhibition of any light then there is no basis for legal liability.

Mr. WEICHEL. Is there a statute now requiring the exhibition of a light offshore? Is there such a statute now?

Mr. AVERY. If you refer to the international waters now

Mr. WEICHEL. The international waters. Yes. Is there such a statute now?

Mr. AVERY. The requirements of the international rules are that the lights be exhibited.

Mr. WEICHEL. Would they be liable then? They would be liable then, would they not?

Mr. AVERY. Under the present international rules?

Mr. WEICHEL. Yes.

Mr. AVERY. Yes. Just as in the Spanish-American War case.

Mr. WEICHEL. Have you not had any cases since the SpanishAmerican War? You have had a few wars since then.

Mr. AVERY. We had two or three situations that I can personally recall in World War II.

Mr. WEICHEL. You had two or three situations in all of these years, and World War II was a pretty big war, and still you had only two or three.

Mr. AVERY. We had a small number of neutral vessels. Most of the Allied vessels were operating under black-out orders.

Mr. WEICHEL. You are asking for a lot of blanket authority for two or three situations when one considers there were two or three wars in that period of time. Do you not think so?

Mr. AVERY. There is a further factor

Mr. WEICHEL. How many ships did you pay for during this last war, World War II? You settled one?

Mr. AVERY. I recall one particular case, where we had a very serious collision with a Portuguese vessel.

Mr. WEICHEL. The litigation you are going to prepare for up to the present has not really amounted to very much, has it?

Mr. AVERY. Based on World War II, where we had all Allied vessels operating under black-out, the situation did not materialize to any great extent.

Mr. WEICHEL. Based on experience, what you are talking about does not mean anything.

Mr. AVERY. My statement was that if we had to deal with a situation of black-out with a great many neutral vessels.

There is a further matter of principle. If you have this black-out situation, you have the executive authorities ordering American vessels and naval vessels to operate in violation of the law. There is a further matter of principle involved there.

Mr. WEICHEL. Do you not think if it were necessary that Congress might have authorized them to operate in violation of the law? The Congress could do it just as well. They are in session usually in time of war. They have been in session quite a bit of the time during the last 16 or 17 years, have they not?