Mr. AVERY. Having in mind the potentialities of the situation, we are suggesting at this time we be forehanded and deal with the problem. The United States Government should not have to be in the position of ordering American vessels to operate and navigate in violation of the statutes. There is that phase of legal liability, and there is the phase of the executive departments ordering noncompliance with the statutes.

Mr. WEICHEL. You only had one case, so there has not been so much of it, has there?

Mr. AVERY. Due, I may say, to the fact that there were very few neutrals that were operating.

Mr. WEICHEL. That is all.

Mr. NELSON. I want to get this straightened out a little, Mr. Avery. Do you consider if this international convention is ader, that the rules and regulations prescribed therein would hav any influence on liability for collision at sea? Would that be take into considera

tion in an admiralty court in the question of dining fault?

Mr. AVERY. I am afraid I do not understand your question. The rules would be controlling.

Mr. NELSON. Suppose you black out and a lighted neutral collides with a blacked-out American ship. They come into admiralty court. Will the court take into consideration these international rules and regulations in determining liability for that accident?

Mr. AVERY. Indeed, and it would be a parallel situation t lay to the Spanish-American War case, because there is no arity for the naval vessel or the American vessel which has bee ordered to be blacked out, not to exhibit its lights. You would be held at fault.

Mr. NELSON. Do they not have the same rules of negligence and causation in an admiralty court with regard to a collision of ships at sea as they do in courts here?

Mr. AVERY. No. We have a very different situation. We have in the admiralty a rule which is referred to as the Pennsylvania rule, where the violation of any regulation imposes upon the violating vessel a burden of showing affirmatively that not only did the violation not contribute, but that it could not have possibly contributed to the incident.

As a practical matter in litigation that is an almost impossible burden to meet. That is what makes the violation of a statute a matter of particular consequence.

Mr. NELSON. That is fine. Now we come down to this situation: Where an unlighted American ship which is not, you say, in violation of any rule, because we have said so in this statute, collides with a neutral which is lighted and has complied with every rule of International Convention. You come down to the basic question of negligence and causation, do you not?

Mr. AVERY. Yes, sir.

Mr. NELSON. Nine times out of ten will not the basic cause of that collision be that the United States ship was unlighted?

Mr. AVERY. Yes, sir; but then we go to the question, is that the basis of any legal liability? If there was no statutory requirement that the American vessel, whether a public or a private vessel, should exhibit lights, then there is no basis of finding fault with this American vessel which is blacked out according to the orders of the Defense Department.

Mr. NELSON. You mean if neither ship has violated any rule, in spite of the fact that the accident occurs, there is no liability. Do they not go into basic causation, assuming no rule has been violated? Mr. AVERY. If neither vessel has committed any fault. If the blacked-out American vessel is doing what she is permitted to do under American law, and the neutral is operating under her own law, then there is no fault on the part of either vessel.

Mr. NELSON. You mean even if the fact that the United States ship was blacked out caused the accident?

Mr. AVERY. The controlling thing, sir, is whether that blacked-out condition was a violation of any statutory requirement. If an American vessel fails to observe the black-out requirements

Mr. NELSON. One more question. I do not know much about admiralty law, so I cannot contradict you. You say under your definition, "during time of war." In other words, we could be running blacked out ships on every sea from the close of World War II up to now, and probably forever, could we not? So what are we in such a hurry about enacting uniform laws for? World War II has never ended, has it?

Mr. AVERY. Theoretically, as far as the definition of a "state of war" is concerned. But many, many statutes which operate only in time of war, and so forth, have been terminated.

Mr. NELSON. True enough; but under your definition, "during time of war," the Secretary of the Navy could now order any ship blacked out on any sea, could he not?

Mr. AVERY. Under this situation he would be in a position to do so. Mr. ALLEN. Mr. Chairman.

The CHAIRMAN. Mr. Allen.

Mr. ALLEN. Mr. Avery, I suppose the thought that turns me against H. R. 3670 to an extent is the provision that we would authorize the President to proclaim regulations which shall have the effect as if enacted by statute, which seems to me to fly right in the face of the usual constitutional conception that we have three individual branches of the Government.

I want to be very cautious if we do give any such authority. Under this bill would we have a constitutional right to delegate that type of authority to the President with as little limitation or definition as this bill provides?

Mr. AVERY. I have pointed out to you, sir, that there are already four sets of rules that exist under the delegation that you have already given. Now, going back to that matter of that phrase, "shall_have the same force and effect as if they were statutes," while, as I say, I did not participate in the basic drawing up of this measure, I can see a very strong desirability from the viewpoint of avoiding litigation, for the insertion of that very provision. That is this: We have a very curious situation under the navigational rules. Half of them are express statutes. Half of them have been promulgated by administrative agencies.

Conceivably, where we have such important things as the international rules, there could arise some question as to whether or not these regulations were of the same order as the statute, or whether they were inferior. I would assume that that language was put in to eliminate that litigation issue, pointing once more to the desirability of the certainty in collision rules.

83781-51-5

Mr. ALLEN. I do not think you quite answered my question. By what authority would the Congress give to the President the power to promulgate a regulation which would have the effect as if enacted by statute, without saying to the President that there is a limitation of the field in which you can make such promulgations, definitely defining how far he could go?

Mr. AVERY. First I would say that you have the limitation in the bill. That is, these navigational rules on the high seas. The second thing was the fact that the Congress has previously passed these statutes delegating authority to do the very same thing to enact these collision rules.

Mr. ALLEN. You think that the unconstitutional delegation of authority itself is authority for a subsequent unconstitutional delegation?

Mr. AVERY. My personal view is that there is no issue of unconstitutionality here.

Mr. ALLEN. Looking at the language of the bill, it says:

That the President is authorized to proclaim regulations for preventing collisions involving water-borne craft upon the high seas, and in all waters connected therewith.

That is fairly broad, too, I guess. What types of regulations, or what several categories of regulations, if you could tell us, would come within the limitation that is set forth in the language I have read?

Mr. AVERY. I think as to that, sir, we have a very excellent guide in the sets of collision regulations which exist today, which are all headed or captioned Regulations To Prevent Collisions, and things of that sort.

Mr. ALLEN. The rules of the road and the provision of navigational lights would come within the definition. Would it not be also possible that the President should specify the amount of power that a ship should have in order to give it the handling ability in case of a collision?

Mr. AVERY. My view would be that there we crossed over the line. Mr. ALLEN. By what authority would you defend your view? Mr. AVERY. The remote connection with the collision situation. Mr. ALLEN. Would it not be also possible for certain specifications of design and rudder size, and all that sort of thing, to be within the definition of any collisions?

Mr. AVERY. I think we have to apply some criterion to the situation, and that is obviously beyond the scope of this bill.

Mr. ALLEN. I think it is obviously beyond the intention of any of us now, but I am trying to define the intention which appears in the bill itself.

Mr. AVERY. We have guidelines, sir, because we have had since 1864 statutes to do this very sort of thing-to provide collision rules. Mr. ALLEN. Would it not be possible under this language to make rules with regard to the number of members of the crew in order to handle the vessel properly and prevent accidents?

Mr. AVERY. That in my view goes beyond the scope of the bill, sir. This is not an uncharted field. These regulations have been in existence for over 50 years and it is just a matter of bringing them up to date.

Mr. ALLEN. I would comment that it is being charted very definitely right now. Would it be possible under this bill for any regulation to be promulgated which would involve a criminal penalty if disobeyed?

Mr. AVERY. Only in this indirect manner: The Coast Guard, as we know, has jurisdiction over offenses committed by merchant-marine personnel. If, in our International Rules, we had a situation of failure of such personnel to abide by those rules, that could set the stage for the separate and independent authority which the Coast Guard has in these matters but it would not of itself impose a nonexistent liability. Mr. ALLEN. It could set forth a situation in which the violator would find himself subject to a penalty already provided by other law? Mr. AVERY. Yes; and the same type of offense which is provided for in the other sets of rules.

Mr. ALLEN. Now suppose that there were a difference between the views of the Government and the views of the merchant-marine industry as to what the rules should be. How would the views of the industry be properly presented and protected?

Mr. AVERY. Under the procedures providing for hearings in the Administrative Procedure Act (5 U. S. C. 1003).

Mr. ALLEN. Would that be a hearing which would involve a full opportunity to present views before the regulations were made?

Mr. AVERY. Yes, sir. May I say that that would be the same situation if the Coast Guard were to make any change in the present Pilot Rules that relate to inland waters, and so forth.

Mr. ALLEN. One other question, Mr. Avery. If the bill were adopted with the section 5 that you propose, would the reservation or condition that we had imposed upon the general adoption of the rules be reported to the United Kingdom in order to apprise the other twenty-odd nations of our variation?

Mr. AVERY. I should assume so, sir, but that is a matter totally out of my jurisdiction anyway.

Mr. ALLEN. If it were. so reported, would that be a basis, if any of the other 25 wished to do so, for reconsidering their own consent? Mr. AVERY. Do we not have the situation where any country, at any time, for any reason, is in a position to reconsider and rescind its previous action?

Mr. ALLEN. Thank you.

Mr. WEICHEL. Mr. Chairman.

The CHAIRMAN. Mr. Weichel.

Mr. WEICHEL. In answer to Mr. Allen's question you said that there would be a hearing under an administrative agency. What agency would have the authority to hold the hearings you are talking about? There is not any existing one now, is there? With reference to the International Convention and the rules for operation offshore, what agency is there?

Mr. AVERY. I assume it would be the Coast Guard-the Treasury. Mr. WEICHEL. You assume it, but tell us where the authority is and where the Coast Guard has any control over that, unless you enact a new additional law. Tell us where that is, please. The fact is that you do not know. Is that not right?

Mr. AVERY. No. That is not the case, sir.

Mr. WEICHEL. Then tell us where it is.

Mr. AVERY. The Coast Guard has broad general statutory authority with respect to navigation matters.

Mr. WEICHEL. Tell us where the authority is for that. You said you assumed it.

Mr. AVERY. The Coast Guard has broad statutory authority with respect to these things.

Mr. WEICHEL. Tell us where the authority is. If you cannot, all right.

The CHAIRMAN. He may not be able to cite the exact provision of the statute, but do you know that such a statute exists empowering the Coast Guard to hold such hearings in the instances referred to by Mr. Weichel?

Mr. AVERY. Yes; and in this situation the Coast Guard over a period of years before the

The CHAIRMAN. Will you furnish the citation to the committee? Mr. AVERY. I will supply it to the clerk.

(The information referred to, subsequently supplied, follows:)

The citation for the Coast Guard's authority is section 2, chapter 1, title 14, United States Code. It reads:

§ 2. PRIMARY DUTIES

The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws upon the high seas and waters subject to the jurisdiction of the United States; shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on the high seas and on waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department; shall develop, establish, maintain, and operate, with due regard to the requirements of national defense, aids to maritime navigation, ice-breaking facilities, and rescue facilities for the promotion of safety on and over the high seas and waters subject to the jurisdiction of the United States; and shall maintain a state of readiness to function as a specialized service in the Navy in time of war.

Mr. WEICHEL. Now with reference to the International Convention, how much new material was adopted as against existing material? What was the agreement with reference to? Operation of ships at sea? How much new material was adopted with reference to collisions, and what is the new material?

Mr. AVERY. To answer that question would be a matter of taking each old rule and comparing it with the new rule, but there was very considerable revision to bring it up to date.

Mr. WEICHEL. You mean there was great revision of all of them? Mr. AVERY. Yes; because the old rules spoke as of 1890.

Mr. WEICHEL. Just because they are old does not mean they are not any good. Was there a lot of change?

Mr. AVERY. We had technical provisions

Mr. WEICHEL. I said, was there a lot of change?

Mr. AVERY. Yes, sir.

Mr. WEICHEL. A change of approximately how many items was there with reference to the rules of operation to prevent collision? How many items was it? One, two, six, or ten?

Mr. AVERY. I can only answer that by checking each old section against the new section, but substantially there was a revision of all sections.

Mr. WEICHEL. I know that is the way you do it, but have you made any check or do you have any idea?

Mr. AVERY. No. I have not made any check.

Mr. WEICHEL. Then you do not have any idea as to whether it is 2 or 200?