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Mr. Avery. I know there was very substantial revision, from my knowledge of the old rules and reading the new rules.
Mr. WEICHEL. How many paragraphs were there with reference to preventing collisions at sea before this Convention? How many paragraphs were there on that?
Mr. Avery. Approximately 30.
Mr. AVERY. Right. There are now under the new rules approximately 32 rules.
Mr. WEICHEL. So you added two. Did you change all of the 30?
Mr. Avery. As I said before, there was a substantial revision of all of the rules.
Mr. WEICHEL. With reference to the changes there are now 32 paragraphs. If those 32 paragraphs as now adopted by the Convention seem satisfactory, after a hearing before this committee with those in merchant shipping and those others who are interested being present, why would not a bill from this committee authorizing the President to accept those cover everything that is necessary?
Mr. Avery. That, as I pointed out, is one of two methods of handling the matter.
Mr. WEICHEL. But why would that not be satisfactory?
Mr. AVERY. The one difference would be that this act would terminate everything, and in 1938, when you permitted the Civil Aeronautics Board to prescribe rules for the regulation of collisions, you specifically directed the Board to revise them from time to time. There would be that difference.
The matter can be done that way. That is, the bill provides for the promulgation of these rules that were adopted in June 1948.
Mr. WEICHEL. But that is a Board designated by law, and it can hold administrative hearings under the Administrative Procedure Act, In this bill are you going to set up a new agency, designating the President as a sort of agency, just like the Civil Aeronautics Board? Then that would be a new agency and he would be authorized to hold all these hearings. That is whom you are designating in this, are you not?
Mr. Avery. The President would issue the regulations.
Mr. WEICHEL. Yes. And in the other one you designated the Civil Aeronautics Board. That Board is one already authorized by law, and it holds and can hold such hearings. Now under the bill you bave here there is not any such agency, but you are designating the President to do it. Would that be a new agency, and then would he have to go through the same kind of procedures as outlined in the Administrative Procedure Act for an agency? I mean, this is setting up something new.
Mr. Avery. No, sir. These rules, if they come into existence, would have to be brought into existence in keeping with the Administrative Procedure Act.
Mr. WEICHEL. But then for somebody to have a hearing the President would have to hold the hearing or designate somebody to hold these hearings.
Mr. AVERY. This thing already happened, because over the course of years the Coast Guard held hearings
Mr. WEICHEL. I was not talking about the Coast Guard. This is designating the President to do that. This does not designate the
Coast Guard to make rules. I understood this bill does not designate the Coast Guard to make these rules, but designates the President. Is that not correct?
Mr. AVERY. Yes.
Mr. WEICHEL. All right. If it designated the Coast Guard, why the Coast Guard could hold hearings under the Administrative Procedure Act, could it not?
Mr. Avery. Yes, sir. I would say this: If there is any doubtMr. WEICHEL. Just a minute. Let us take one thing at a time.
If it designated the Coast Guard, the Coast Guard could hold hearings under the Administrative Procedure Act; could it not?
Mr. Avery. Yes, sir. To amplify my answer, may I say, if there is any doubt as to the workability of these hearings with respect to the President's designation, I would assume some other agency might be designated in the bill.
Mr. WEICHEL. But this bill now designates the President; does it not?
Mr. AVERY. Yes, but I cannot tell you why the President was designated. I was not in at that stage.
Mr. WEICHEL. Were you at part of these hearings with the departments of Justice and the Navy?
Mr. AVERY. As my statement reads, I attended this meeting before the Bureau of the Budget in January, when they were trying to iron out the impact of this legislation on various Departments.
Mr. WEICHEL. The Navy did not have anything to say about drawing it up?
Mr. Avery. About drawing the bill?
Mr. AVERY. Yes.
Mr. ALLEN. I notice in section 5 you provide that the Secretary of the Navy can set aside the regulations and prescribe a “black-out.” Inasmuch as the President is the one who promulgates the regulation in the first place, would it not be a little better if the President changed it, rather than the Secretary of the Navy? Mr. AVERY. I concur, sir. Mr. ALLEN. Thank you. The CHAIRMAN. Thank you very much, Mr. Avery. Mr. Colby, please give your name and position to the reporter.
STATEMENT OF LEAVENWORTH COLBY, SPECIAL ASSISTANT TO
THE ATTORNEY GENERAL, ADMIRALTY AND SHIPPING SECTION, DEPARTMENT OF JUSTICE
Mr. Colby. My name is Leavenworth Colby. I am a special assistant to the Attorney General in the Admiralty and Shipping Section of the Department of Justice. I have no prepared statement to make. I am here for the purpose of answering such questions as the committee may desire to put on this subject.
The Department of Justice in the Admiralty and Shipping Section is charged with all the litigation arising out of the operating of Government vessels and, of course, all vessels operated for and on behalf of the Government. We have nearly 75 percent of all of the admiralty business in the United States. In other words, we are at least on one side of that.
We, of course, undertake, in providing such assistance as we can in legislation, to review these matters and give our opinion.
Now, I would like to mention informally first the circumstances surrounding the drafting of this bill. This bill was drafted in its final form at an interdepartmental meeting at the Bureau of the Budget. There were presented at that time, both formally and informally, proposals concerning the language of the various sections. Some of those were adopted. Various compromises were worked out. That is why it is so difficult for the various gentlemen to state just who proposed what language, and what changes were made.
As Captain Avery has said to you, the beginning of the redrafting of section 1 of the bill as it now stands was based upon this problem that arose from the fact that the original draft proposed contained the language that the President was to promulgate regulations drafted in consultation with and accepted by other maritime nations. I think Captain Avery has explained to you satisfactorily the possibilities of endless litigation arising out of any such clause. As he said, there are two ways this work can be done. One is by the Congress adopting the entire rules—the entire International Collision Regulations--as a statute.
The other way is to proceed as has been done in the case of the Civil Aeronautics Board, and in respect of parts of the inland and other collision rules, that is, to do it under the regulatory power.
It was proposed in the original draft of the bill that it be done under the regulatory power, as you see here. It was not confined, you will notice in this original draft, to promulgating just the 1948 regulations. It was intended that, without going to Congress again, any amendments agreed upon among the nations could be promulgated by the same means. In so doing, we were following the precedent that the Congress laid down in the 1948 act on the Civil Aeronautics Board.
This proposal to proceed by regulation rather than by statute was not one that arose, as I understand it, either in the Coast Guard or the Department of Justice, or in any other administrative agency. This suggestion that we proceed by regulation, as was done in the Civil Aeronautics Board case, was made at a meeting of the Merchant Marine Council, which was held under the regular statutory auspices of the Coast Guard for the purpose of deliberating on the International Collision Regulations and arriving at a recommendation as to how they should be put into effect.
That is the background of the thing. As I say to you, every department had slightly different views about how the statute should be worded, and this is the draft that came out of the interdepartmental meeting
Addressing myself to the Congressman here, I may say that the Department of Justice in its draft had foreseen the possibility of there being some problem about just what was to be promulgated. My recollection is that we had proposed that after the words “for pre
venting collisions at sea" we would put in the words "and may thereby regulate the lights to be carried and exhibited, the fog signals to be carried and used, and the steering and sailing rules to be observed." We agreed to the elimination of the language on the ground that, as Captain Avery has said, the content of collision regulations has been pretty well established over the years.
As you gentlemen know, I am sure, the first collision regulations of an international character were gotten up by the British in about 1848, and we adopted them by statute along about 1855.
There was a great revision of those regulations which we adopted by statute somewhere along about 1865. Then, in 1888, for the first time, this country called an International Conference to deal with maritime questions, and one of the things that was done at that time was to get together and obtain further revision of the International Collision Regulations which were part of the final act of that Conference in 1889.
Their coming into effect in the United States was provided for in the statute of 1890, which merely authorized the President to fix the date by proclamation when the regulations as agreed to should come into effect. That was done some years later because, just like in the present case, as we have seen today, some questions arose as to just what the limits of the regulations should be.
Now, it is important to bear in mind in considering what we are doing here, that these regulations are not an international convention, unless you use that term in the sense that they are a type of international agreement. They are annexed to the final act of the International Conference on Safety of Life at Sea. They do not form part of the convention.
At yesterday's hearing one of the gentlemen from the Coast Guard read out the paragraph in the final act of the Conference which describes the manner in which these International Collision Regulations are to be handled, with a view to bringing them into effect internationally when the various nations have, by their municipal lawtheir national law--provided for their application by their courts and by their shipmasters. In order to refresh the recollection of you gentlemen, I would like, if I may, to read that paragraph of the final act again. It reads as follows:
The Conference also had before it and used as a basis for discussion the present International Regulations for Preventing Collisions at Sea. The Conference considered it desirable to revise these regulations and accordingly approved the International Regulations for Preventing Collisions at Sea, 1948, but decided not to annex the revised regulations to the International Convention for the Safety of Life at Sea, 1948. The Conference invites the Government of the United Kingdom to forward the International Regulations for Preventing Collisions at Sea, 1948, to the other_Governments which have accepted the present International Regulations for Preventing Collisions at Sea, and also invites the Government of the United Kingdom, when substantial unanimity has been reached as to the acceptance of the International Regulations for Preventing Collisions at Sea, 1948, to fix the date on and after which the International Regulations for Preventing Collisions at Sea, 1948, shall be applied by the Governments which have agreed to accept them. The Conference requested the Government of the United Kingdom to give not less than one year's notice of this date to the Governments of all States.
So, now there is in the present state of the affair no international convention, and there is no international agreement. That is arrived at when the various nations have signified to the Government of the United Kingdom their intention to accept the regulations.
It is contemplated that before they so signify the appropriate steps in national law be taken to permit that being done.
The principal maritime powers—in that sense I mean the French, English, Germans, and so forth-already have on their statute books laws which were adopted back at the time of the 1890 regulations, which provide for bringing the International Collision Regulations into effect by the usual regulatory manner peculiar to the country. In France it is done by decree on report of the Ministry of Marine. In England-I have before me the pertinent provision of the Merchant Shipping Act, and I think it might be helpful if I read it to you. It reads as follows:
Her Majesty may, on the joint recommendation of the Admiralty and the Board of TradeThat is the Navy and the Board of Trade, which is the branch of the Government looking after the merchant marine
by Order in Council, make regulations for the prevention of collisions at sea, and may thereby regulate the lights to be carried and exhibited, the fog signals to be carried and used, and the steering and sailing rules to be observed, by ships, and those regulations (in this act referred to as the Collision Regulations) shall have effect as if enacted in this act.
Now, that is the way the other nations have done it. Consequently, the other nations in signifying their acceptance of the new technical revision of the 1948 regulations are not obliged, as I understand it, in any case, or certainly in only a few, to go back to their legislatures for authority. When the government has approved, through whatever the competent department is, the technical regulations, they can take the appropriate steps to direct them to come into force, so that they will be applied first by their courts in adjudicating litigation which may come before their admiralty court, whatever it may be; and, secondly, be obeyed by the masters and officers of their vessels both ships of war and of the merchant marine.
That is the picture we were trying to deal with here. As I say, it was suggested in the light of the precedent for the Civil Aeronautics Board and in the light of the fact that other nations have done it this way that the same thing be done here.
As has been seen, the regulations are technical in character. There is no question of policy which is susceptible of a legislative decision as that term is usually understood. As has been pointed out, by the nature of things you have to take the International Regulations the way they are agreed upon, or else just not accept them. In which case, if the country concerned is of the maritime importance of the United States, or of Great Britain, such a country may be able to prevent the new regulations from coming into effect at all. A minor country, from the standpoint of maritime commerce, of course, probably has no choice, because if the principal nations put it into effect, the minor country must follow suit or its vessels will be in collisions all over the world. That is the background of the plan.
It has been suggested that the Civil Aeronautics Board is more under the control of the Congress than is any other Department. I am not clear as to what, from a practical standpoint, that means. The most effective control that the Congress has over any administrative agency, so far as regulation is concerned, is the power of the Congress to take legislative action to suppress or replace the regulation. That can be done as readily in one field and in respect of one agency as