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another. The grant to the Civil Aeronautics Board clearly is very, very broad, and there are substantially no standards laid down for what it is to do.
Now, I am not suggesting that one mistake is a precedent for another, or anything of that sort, but it has never been thought that the grant to the Civil Aeronautics Board was a mistake. The authority given the Civil Aeronautics Board was that the Board is empowered and it shall be its duty to promote safety of flight in air commerce by prescribing and revising from time to time air-traffic rules governing the flight of and for the navigation and protection of aircraft, including rules as to safe altitudes of flights, and rules for the prevention of collisions between aircraft and between aircraft and land or water vehicles.
One of the reasons why it took 2 years to get out a draft of this present bill was that it was necessary, before any action could be taken, for the interested Government departments to get together with the Civil Aeronautics Board in order that there might be no conflict between this tremendous power given the Civil Aeronautics Board and the power that was necessary to deal with the International Collision Regulations.
As you gentlemen know, as a practical matter the Civil Aeronautics Board is not only above every other Government department, but is above the President himself in matters of this sort. It is that very circumstance of being above other Government departments that is responsible for the suggestion in the bill we have here that the President promulgate the regulations, because that brings them up to a head under the man who controls all departments.
Now, it was thought that it was not necessary to make any provision for his acting on the report of the Navy and the Coast Guard, as was done in the corresponding British statute and French statute and most of the others with which I am familiar, because it is provided in title 14, United States Code, the Coast Guard title, that these matters, referring to collision regulations and such, are under the Coast Guard.
Mr. WEICHEL. International matters are under the Coast Guard?
Mr. Colby. Collision regulations. Now collision regulations, when it does not say "national," was thought to be broad enough. Now, Mr. Weichel, we may be wrong, in which case this committee, out of an abundance of caution, may want to make the matter more specific. But, that was the conception under which this language was arrived at.
It is always possible in drafting a thing that has as many ramifications as this, and in drafting a statute which is designed to deal with the problem, if not once and for all, at least prospectively over possible future changes in the international regulations, that the drafting formula chosen is not that most apt to effect the result, and this committee, of course, has at this stage the primary responsibility in that respect.
It has been suggested that the draft as it now stands is deficient in standards, referring to the problem that the Congress may not parcel out a regulatory power without laying down standards that are to govern.
The standards laid down in this bill are about the same as those laid down in the act relating to the Civil Aeronautics Board. Again I say it does not mean if a mistake was made once that it should be repeated again, but it has not been thought that that was a mistake.
In the draft, as I said, that the Department of Justice had originally suggested, we had in it this language confining the rules to lights, and so forth, purely out of an abudance of caution, and we acquiesced in their elimination on the ground that they really were surplusage, because it seems obvious that there can be no regulations for the prevention of collisions unless those regulations are uniform, certainly in their broad lines.
It was thought that that, of itself, when considered in connection with the administrative hearing procedure that would come up under the Coast Guard by reason of title 14, United States Code, and by reason of the appropriate section of the Administrative Procedure Act, title 5, United States Code, section 1003, we would have a sufficient procedure. The industry and all others interested would be able to go before such a hearing and put forward their technical objections, because these technical objections that arise in a situation of this sort are not the sort of things that lawyers particularly understand.
I don't understand them. I don't suppose that most of the Members of Congress will understand them, because most of the Members of Congress are lawyers, and they probably do not even have such slight advantage as I have of being presumed to be an admiralty lawyer.
So that was thought to be a sufficient guaranty and, as I say, Congress had little or no choice in here. You can only accept the rules or not.
We had the problem about what happens if a nation chooses to make some kind of exception in respect to blackouts of merchantmen and war vessels in times of emergency. I think it is interesting to note that there was nothing in the old International Collision Regulations providing for that being done. Yet, so far as I know, every pation that was involved in the war got out substantially identical regulations dealing with the problem and providing for blackouts and what not.
The British naturally did it under the section of the Merchant Shipping Act which I have read to you, because there is no limitation in that authorization for regulatory action. I assume it was done substantially the same way by the other nations.
As Captain Avery said, in this country we did it under the authorization fund, which is one of the sections of the War Powers Act.
Now, there were no difficulties, as Congressman Weichel pointed out, in the last war. That was primarily because it was a big war. But we have, particularly at the present time, to contemplate the possibility of little wars. When there is a little war there will be only a few vessels of participants, that is, a few participants having vessels which must be blacked out, and there will be many neutrals. Therefore, we must anticipate if it is a small war there will be lots of collision cases involving this problem. If it is a big war there will not be many.
As you gentlemen know far better than I, in the last war not only were we and our allies operating practically all of the shipping, but even the neutral nations that had a few vessels around were operating them carrying goods for the account of one or more of the belligerents, and so they were doing what they were told. There was, just as Captain Avery says, as far as we know, only one case, and that was
disposed of by settlement, because there were a lot of other things in the case besides the problem of black-outs.
However, if in the present stage of emergency we have a little war with lots of neutral ships and a few belligerent ships, we will be in difficulty if there is not clear authority found somewhere for the Government of the United States to provide for black-outs. That is not only on public vessels, but, of course, merchant vessels no less. These merchant vessels in most cases will no doubt be operated either by or for the Government of the United States so, so far as the orders to the ship captains are concerned, I suppose there is not any problem, but as Captain Avery pointed out, in the Watts case it was held that it might be all very well, but when you got into ligitation there was liability on the part of the vessel which violated the rigorously established collision regulations as a black-out not authorized in the regulations.
So, it is desirable to have such authorization in the statute, and I remind you again that in the past the other nations which were parties to the informal international agreement relating to the collision regulations made such exception without special authorization, and when, as I understand it, there have been no restrictions placed on the acceptance of the new regulations by the 25 nations that have accepted them, I take it that more than likely means that they expect to go on construing them with the right to have black-outs as they exercised it before, rather than meaning that we will be all alone if we provide statutory authority for the competent Government agency to provide for black-outs, so as to make sure that our judges have the right statutory directives in adjudicating collision matters.
Mr. NELSON. We have a great deal of great expectations in this bill, do we not, Mr. Colby?
Mr. Colby. I think a bill of this type, designed as it is to last as long as those that have been used in other nations, naturally involves great expectations; and that the problems and considerations, and the care which the Congress must give to the matter are equally as great as the expectations.
We felt that the bill in its present form was satisfactory and workable. We did not even feel that it was the best possible bill. I think every Government agency that participated has probably got in its pocket some few words they want to stick in here or there, just like, as I say, I suppose over in our Department we would prefer to see those words put in there.
The man down in the Criminal Division with whom I discussed this matter at the time felt quite strongly that that ought to be in there, although he felt equally strongly that there was no possibility of the President providing for any penalties in the regulations because it has always been the accepted view of the law that to put penalties in there must be an express authorization for it. Of course, that is lawyers' opinion.
I am not sufficiently skilled in the field to know whether I would agree, after 5 or 6 days' study, with the conclusion I got informally from the man in the Criminal Division.
Mr. WEICHEL. Does not proposed legislation try to take care of some difficulties in the past? You pointed out here
You pointed out here you have not had any.
Mr. Colby. We pointed out, I think, in effect, Mr. Weichel, that
Mr. WEICHEL. With reference to black-outs.
Mr. Colby. Yes. We have not had any because up to now our wars were big wars.
Mr. WEICHEL. Yes. I understand that.
Mr. Colby. Right now we are going to have a little war, or something we can call a war.
Mr. WEICHEL. Do you expect we are going to have a lot of little wars, like we are talking about here in Congress? Is this in preparation for that?
Mr. Colby. Let us say this: Our friend suggested that this is a bill of considerable expectations. The purpose of the bill is to get a draft under which everything needful can be done. If it is believed that in time of emergency Congress cannot afford to drop more important questions of policy in order to take the time at that point to enact the authorization for taking such action with respect to blackouts, that is a valued judgment. Certainly I could not pretend to the expert knowledge that it would be necessary to have to make a better judgment on that than anyone else. I would not dream, for instance, of thinking that my judgment on the matter would be as competent as yours, because you are familiar with what the problems of Congress are in times of emergency, and whether it can spare from more important questions the time necessary to put through a bill of this sort, because obviously, if you prefer it, you can get it through.
Mr. WEICHEL. A more specific War Powers Act then would be better than this, would it not? A War Powers Act with a specific paragraph, and more up to date than this would be more effective at least on what you are talking about, would it not? It would be fresh and new.
Mr. Colby. I think in my opinion I would say that the thing could be done either way. The freshness and newness would be perhaps the objection. The existence of such a provision in national law should be a matter of common knowledge to the other maritime nations.
Mr. WEICHEL. Have you not had that common knowledge up to this time? I thought you said you had all that.
Mr. COLBY. Of course, you see, as a practical matter, they did not know about it when the War Powers Act first came into effect. It came into effect, and we employed it. I do not want to get into a discussion of the War Powers Act, because I did not understand it when I studied it.
Mr. WEICHEL. But you could have done that and brought it to their attention, just like you are bringing it to their attention here.
Mr. Colby. That is right, Mr. Congressman.
Mr. COLBY. There are always more ways of doing a thing than one, and it is a valued judgment, and one peculiarly within the scope of Members of Congress, to know just how you are going to go about that. Of course, in the Department of Justice we feel we are merely lawyers. We only want to be sure that the law is going to work. Our feeling was, or perhaps I should say my feeling is, that to do it by another War Powers Act is not so desirable, because it is not known in advance.
As regards the question of the sharpness and up-to-dateness of the text, I think in any event the language has to be drawn in rather
broad lines, so that there is not much question of sharpness and upto-dateness.
I have not had a chance to study Mr. Avery's draft particularly.
Mr. SHELLEY. I would like to ask you this: I do not think there is any question on the part of anybody on this committee of the right of Congress to institute regulations such as this in wartime or in a really critical period. I am looking at this language and this thought occurs to me, which is completely different from any tack that has been taken. This is the language that Captain Avery proposed a while ago. I do not know if you have it in the form of the draft he read from. It says:
That during time of war, combatant activities or any warlike operations
Let us say there is even a time a little different from the period in which we are existing, in which there are normal peace conditions existing. Would not this language as written there allow the Navy in maneuvers, which are warlike operations to hold maneuvers off the roadstead, or just outside the limits, and then, if a merchant vessel comes along, by this your naval vessels are completely blacked out and relieved of any responsibility of observing the rules of the road and international regulations, and there is no recourse against them for any incompetence or malfeasance on the part of the officer in charge on the bridge.
Mr. COLBY. The courts have held that the language "warlike operations” and things of that sort, and similar terms, do not extend to training operations. The language, I assume, that is written in here, was based on those judicial decisions.
Mr. SHELLEY. Will you let me have those citations for my own satisfaction, please?
Mr. COLBY. Yes. Surely.
Mr. Colby. It might be desirable to choose a little different language.
As I say, this draft is very new to me. We are presented with the problem of making it as broad as possible to deal with the situations which may develop in the future. I take it that was Congressman Weichel's point: That you cannot always anticipate these things in advance.
Of course, bear in mind my understanding of the reason why the bill is drawn to permit the President to promulgate revised regulations is that it is anticipated that with the development of air traffic and their use occasionally of waters and the development of radar, and that sort of thing, that we may anticipate more frequent need of revising the international regulations in the future than has been the case in the past.
Mr. SHELLEY. Does not this thought have any merit? The reason that the issue exists here--and the issue is as to this point of Congress giving the authority to the President—is that you give it to the President because there is no single administrative agency set up by law over this entire field at the present time, and it takes in the field of several existing agencies.