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Mr. Colby. That is right. In other words, as a practical matter, we have the Coast Guard in there looking after the merchant marine interests. We have the Navy controlling the public vessels, and of course in peacetime you have the Coast Guard also operating vessels under the Treasury Department entirely independent. You know our public vessels are really quite a problem. As I understand it, even the Department of Justice has seamen and public vessels. The Immigration Service has patrol boats

Mr. SHELLEY. I do not think we ought to start on that.

The CHAIRMAN. Mr. Colby, what is the precise meaning of the language on line 5, page 1, after the comma, reading as follows:

and in all waters connected therewithmeaning connected with the high seas?

Mr. Colby. That language is copied, I believe, from the existing statutes. Its real meaning is found on page 2, where you begin at line 1 and have the present statutory definition of the limits between the inland waters, and so forth. Bear in mind that statutory definition is implemented by regulations gotten out by the Commandant of the Coast Guard.

The CHAIRMAN. Affirmatively what waters are included in the phrase? The section you referred to is negative in that it says:

These waters will not include
Mr. Colby. That is right.
The CHAIRMAN. I want to know what waters are included.

Mr. Colby. I take it the waters connected with the high seas are those which are within headlands, and therefore not on the high seas themselves, but are yet not so far inshore as to come within the exclusion that is contained on page 2.

So much of this language is historical, and it is very difficult for a young fellow like me who has not been in this for 150 years to know why people 100 years ago chose some of this language.

The CHAIRMAN. Have those who have been in it 150 years ever compiled a list of waters coming within this definition that you know of?

Mr. Colby. I do not suppose they have; no, sir. You see, the technique coming in here in the section is to say that waters connected therewith should clearly go into the inland rule territory, right into territorial waters, and everything of that sort. That is what is done in the present statute.

Then you come along and define that it shall not apply to the rivers and harbors, and inland waters which are, of course, the places where the inland rules apply.

The CHAIRMAN. For specific illustration, would New York Bay be considered as inland water?

Mr. Colby. Yes, sir.

The CHAIRMAN. Or would it be considered as a body of water connected with the high seas?

Mr. Colby. I suppose it is a body of water connected with the high seas, but it is considered inland water under the inland rules, and the other provisions of the statute.

The CHAIRMAN. Is there a specific line of demarcation as to what will be or will not be inland waters, as contrasted with waters connected with the high seas?

Mr. Colby. Yes, sir. That is provided for to be done by the Commandant of the Coast Guard by section 151 of title 33, United States Code. Let us see. I think that is restated. They have restated the language of this. No. They did not restate the language. That is one of these abominable notes that tells you when somebody uses one name it means somebody else's name. The way it stands in the code it reads "Secretary of Commerce.” That probably reads “Commandant of the Coast Guard” now. It says he ishereby authorized, empowered, and directed to designate and define by suitable bearings or ranges, with lighthouses, light vessels, buoys, or coast objects the lines dividing the high seas from rivers, harbors, and inland waters.

He gets out a regulation under that which all good collision lawyers put their hands on immediately, and that is the answer. How shipmasters tell when they have a fog and cannot take a bearing, I leave to the navigational experts.

The CHAIRMAN. One other question. It is getting close to closing time and I had hoped we would be able to finish these hearings today. Why is there no limitation on the authority of the President to proclaim regulations, to those regulations having reference specifically to the rules under consideration?

Mr. Colby. First it was thought desirable to give authorization to proclaim not only to the present regulations, but any revisions which might be made.

The CHAIRMAN. But revisions relating to the rules?
Mr. COLBY. That is right.

The CHAIRMAN. But this does not limit him to that. You may say it is inconceivable the President would issue rules that do not relate to that particular set of rules known as the International Rules for Prevention of Collisions, but it is possible that he might go berserk and issue rules without any relation whatever.

Mr. Colby. I am not really the man to argue the point with you, because in my own recommendation I bad the language there about the steering and sailing rules, and somewhere along the line of interdepartmental agreement-I am not clear that it was in the Departmentbut I think it was eliminated.

The CHAIRMAN. I am not asking you to argue with me, but to inform me as to why no limitation has been placed on the President in that respect. I understand your proposal in that language seems to be identical with the language you read from the British statute.

Mr. COLBY. Yes. Because it was thought that Regulations for Preventing Collisions carried that limitation within themselves; that the history of what had been Regulations for Preventing Collisions sufficiently defined it.

The CHAIRMAN. Would there be any objection to defining it specifically, rather than depending upon historical language and the possible necessity for having the language construed judicially?

Mr. Colby. I do not think there would be; no, sir. I am not aware that at the time that the language was eliminated that anyone thought that there was any real necessity for eliminating it. It was merely the usual thought that statutes should be kept as brief as possible, and it was thought to be tautological.

Mr. ALLEN. Mr. Chairman.
The CHAIRMAN. Mr. Allen.

Mr. ALLEN. Mr. Colby, is there any reasonable ground to assume that the proposed new rules would be amended any quicker than the old ones have been amended?

Mr. Colby. That is a thing on which I cannot pretend to any expert knowledge. My understanding in this field is that it has been thought that because of radar and air navigation, and other great developments, there might be such occasions. I cannot weigh such reasons and such talk at all. I do not know. That, as I understand it, is the anticipation.

Mr. ALLEN. It also occurred to me that the best precedent for adopting these rules would be to follow the precedent established when the original rules were adopted. And, still searching for the underlying reason as to why the original precedent was abandoned, we look to the Civil Aeronautics Board or other provisions for a precedent.

Mr. Colby. I suppose that the reason is just exactly the one that you imply there. In other words, we look to what has been done in part by regulation under the inland and river rules, and what has been done in toto under the Civil Aeronautics Board rules as an evidence of the general disposition of Congress wishing not to become involved in what are purely technical regulations.

You see, in the maritime field we have the same thing in respect to admeasurement questions and all sorts of things like that.

Mr. ALLEN. I confess I am not impressed by that technical question. I do not see anything technical about saying a light is going to be 50 feet above water. I would take Mr. Shelley's opinion on that. He is a pilot and a lawyer both, I believe. I would take his opinion on technical matters. But the authority for stating a set of rules that could give rise to so much liability ultimately seems to me to be well worth the consideration of the Congress when the policy is being set.

I understand you said in England it is turned over to the Admiralty and the Board of Trade?

Mr. Colby. That is right.

Mr. ALLEN. It is not true that the Admiralty and the Board of Trade are both pretty much under the control of the Parliament and their heads are taken from members of it?

Mr. Colby. Yes. This is a question about the difference between American constitutional structure and British. Yes. We are all familiar with that. However, I do not know that in a technical matter the control of the Parliament is perhaps any greater than the control of the Congress here.

Mr. Allex. It would certainly seem to me that a hearing before a congressional committee is almost more similar to a hearing before the Board of Trade or the Admiralty than it would be to send the people down to a department which is not responsible to elective groups.

Mr. Colby. Now, sir, I suppose—and I speculate—the answer to that question is that the Congress in enacting the Administrative Procedure Act and providing for the hearing procedure with respect to regulations to be issued, has rather indicated that at least in many situations it is of a contrary view. Now, whether this is such a situation is a valued judgment which the Congress must make in a particular case.

83781-51-6

Mr. ALLEN. Thank you, Mr. Chairman.
The CHAIRMAN. Mr. Weichel.

Mr. WEICHEL. If you adopt what is outlined in this bill presently, the Congress might be satisfied to authorize the President to accept the rules of this Convention and in addition issue regulations under the rules of this Convention. The Congress might be satisfied to do that.

Mr. COLBY. Yes.

Mr. WEICHEL. But if we adopt this bill the Congress forever gives up its power and authority over the rules, as to whether they are satisfied or not. In other words, if the bill is adopted the President could accept rules promulgated by the Convention while never considering Congress whatsoever.

As for the future—and I am not talking about regulations, but I am talking about the rules of the Convention—the Congress forever gives up its power unless it revokes it.

Mr. Colby. That is the answer. Congress cannot forever give up its power because it can revoke it very rapidly, and has done so.

Mr. WEICHEL. But it is given up until such time as the act is repealed.

Mr. Nelson. Will the Gentleman yield?
Mr. WEICHEL. Yes.

Mr. NELSON. That is the point where the comparison is invalid because in England they assign it back to the Board of Trade and the Admiralty, who are themselves controlled by a majority vote. When you compare the passage with other departments, Congress has control. When you compare it with the Executive, under the Constitution we cannot possibly get back the power without a two-thirds majority of both Houses.

Mr. Colby. Yes. I think I see your point. The President, whereas he may be in there for other reasons, if he is concerned in the matter, is always assumed by us not to be, since it is a technical matter. This is just to permit him to control possible competition between departments. Were he possibly involved, he could control, in view of the two-thirds vote necessary.

The CHAIRMAN. Are there any other questions, gentlemen?
(No response.)
The CHAIRMAN. Thank you very much, Mr. Colby.

I am sorry, gentlemen, but we will have to conclude the hearing today, since there is a quorum call in the House. We will bave to adjourn until tomorrow morning. The subcommittee will meet agai tomorrow morning at 10 o'clock and it hopes to conclude the hearings on this measure at that time.

(Whereupon, at 12 o'clock noon the hearing in the above-entitled matter was adjourned until 10 a. m. of the following day, Friday, May 11, 1951.)

REGULATIONS FOR PREVENTING COLLISIONS AT SEA

FRIDAY, MAY 11, 1951

in

SUBCOMMITTEE ON MARITIME AFFAIRS OF THE
COMMITTEE ON MERCHANT MARINE AND FISHERIES,

HOUSE OF REPRESENTATIVES,

Washington, D. C. The subcommittee met, pursuant to adjournment, at 10 a. m., room 219, Old House Office Building, Hon. Edward J. Hart (chairman) presiding

Present: Representatives Hart, Boykin, Robeson, Allen, and Bennett.

The CHAIRMAX. The subcommittee will come to order, please.

I note that Mr. Harrison and Commander Webb are present. I know they are both very busy men. While of course we are delighted to have them, as they are here voluntarily, the Chair would like to state if they have other duties to perform and would like to perform them rather than sitting here, the Chair has no objection to their leaving

Mr. McElhinney, you are from out of town?
Mr. McELHINNEY. Yes, sir, from New York.

The CHAIRMAN. I am sorry we were not able to get through with you yesterday. We will be glad to hear from you now if you wish to proceed.

Mr. McELHINNEY. Thank you, sir.

STATEMENT OF ANDREW J. McELHINNEY, REPRESENTING THE

MARITIME LAW ASSOCIATION OF THE UNITED STATES

Mr. McELHINNEY. My name is Andrew J. McElhinney, and I am speaking on behalf of the Maritime Law Association of the United States.

Mr. Chairman, and gentlemen, the Maritime Law Association of the United States, as you undoubtedly know, is an organization comprising some 850 members, of whom the majority are admiralty attorneys, a great many of them members of the leading admiralty firms of the United States.

It also comprises other men from shipping interests from all over the country, from the Atlantic and Pacific coasts to the Great Lakes regions and ports of the Gulf of Mexico and inland sections.

I am a member of a committee that was appointed to consider this bill, H. R. 3670, and to advise the Martime Law Association whether in our opinion that was a proper bill or not. We studied the bill and made our report to the association.

Last Friday we held the annual meeting of the association in New York, which members from all over the country attended. We submitted our report to that meeting and it was approved.

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