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.

tional Rules adopted at the London Conference in June 1948. It indicated that the major item of Navy Department concern was section 2 of the bill, which continues existing statutory authority (act of Dec. 3, 1945; Public Law 239, 79th Cong., 1st sess.; 33 U. S. C. 360). It also pointed out that, under the proposed new International Rule 13 (b), any government may put into effect similar procedures to care for its problems of naval vessels of special construction.

However, I think it will be a saving of the committee's time for me to request that the statement, filed yesterday, be made a part of the record and for me to indicate very specifically at this time why the procedure of the proposed bill is particularly adapted to meet Navy Department problems and to specify the considerations which led to the view that the proclamation procedure has, for the Navy Department, advantages superior to the enactment, as a specific statute, of all the 1948 Revised International Rules or to the limitation of this legislation to the condition that the President shall have authority only to promulgate the specific International Rules adopted at the 1948 London Conference.

Admiral O'Neill has testified as to the extended hearings with the representatives of American shipowners, admiralty lawyers, and so forth, which preceded the convention in order to determine what should constitute the American recommendations to the convention. I was not a member of that committee, but did deal with the committee, as did Admiral O. S. Colclough, then Judge Advocate General of the Navy, on the point of the necessity of a provision in the new International Rules, which would exempt naval vessels of special construction where the impossible literal compliance with the rules. could impose civil liabilities on the United States in collision cases. That provision is incorporated in the proposed convention as article 13 (b).

I should say, at the outset, that thereafter until the recent Bureau of Budget meeting on 18 January 1951, which I attended, I have had no contact with the matter and have, therefore, no knowledge of the factors or considerations which are involved in the lapse of time between the agreement of the representatives of the various maritime nations in London in 1948 as to the recommended new International Rules and the introduction of the legislation to accomplish their enactment as H. R. 3670 and S. 1182.

Obviously, after the London Conference, there had to be determined the question of how the new International Rules should be put into effect in the United States. There are two possible procedures. One is the procedure of the bill under consideration. The second is an enactment, as a specific statute, of all of the new international collision regulations. Admittedly, either could be used. I wish to stress at the outset that the United States has used both of these procedures in bringing into effect navigational rules.

The rules here under discussion, the International Rules, are only one of some eight sets of American navigational rules. There is a separate set of statutory rules covering, respectively, the inland waters of the United States, the Great Lakes and their tributary waters, and the western rivers. The inland, Great Lakes, and western rivers statutory rules are each, in turn, supplemented by an additional set of rules, promulgated through administrative action. These three sets of administratively promulgated navigational rules appear in the

three Coast Guard pamphlets which I exhibit here. These pamphlets bear the numbers CG-172, CG-184, and CG-169.

A fourth set of administratively promulgated navigational rules is the Department of the Army's Panama Canal Rules, reenacted in 1948.

From the viewpoint of precedents to use at this time, there were the method of statutory enactment as occurred with International Rules in 1890, and the four later instances of the promulgation of the Pilot Rules and the Panama Canal Rules. Thus, as to the most frequent of the recent procedures, the score favors the procedure here under consideration.

I wish to make very clear that the enactment of navigational rules, other than by express statute, is not a novel practice in the United States.

Neither is the procedure of this bill without precedent in other maritime countries. The British adoption of the existing International Rules, which have been in effect since 1890, rests specifically upon their being promulgated as collision regulations pursuant to broad statutory authority-as is Canadian practice. Since yesterday I have not had an opportunity to check the situation in other countries which have large maritime interests. My general information, however, is that in most of these countries the International Rules have come into effect through the medium of promulgation as regulations, rather than as specific statutory enactments.

I wish now to refer to the point urged yesterday that this bill is designed to accomplish a diminution of the legislative prerogatives of the Congress. To the contrary, I urge that the procedure of the bill, in fact, accords with the methods of the Congress for bringing into effect systems of very technical regulations. There are two controlling aspects here. The first is that any regulations promulgated by the President are obviously subject to the provisions of the Administrative Procedure Act (5 U. S. C. 1001 et seq.) with respect to the requirements for hearings, and so forth, before the regulations become effective. The matter would proceed in the same manner as when the Coast Guard effects changes in the three separate sets of Pilot Rules or the Army in the Panama Canal Rules.

The second factor is the most practical aspect that there can be no workable International Rules without complete unanimity. The proposed International Rules occupy 13 pages (173-186) of the State Department publication, International Conference on Safety of Life at Sea (publication No. 3282).

If the matter is dealt with as a specific statute, then the committee hearings would have to consider each specific rule in these 13 pages. In the end, if there is any departure from the 1948 Convention, then there is no longer the uniformity which is the essential to the International Rules. Any variations would result in these rules, which are captioned, "Regulations for Preventing Collisions at Sea," in fact, becoming regulations contributing to collisions if, for instance, the British rules for vessels on the high seas should require some action different from that prescribed by the American rules for American. vessels.

Thus, having in mind this controlling aspect of uniformity, the matter seemed one of technical regulations to be dealt with administratively, subject always to the controls prescribed as to hearings, and so forth, by the Administrative Procedure Act.

As a very specific illustration of the congressional policy as to the manner of promulgating technical regulations, I quote from title 49, section 551, United States Code, where the Congress has afforded the Civil Aeronautics Board, with respect to aircraft, authority similar to that proposed by this bill. Under section 551 (7) the Board is empowered not only to prescribe but to revise from time to time, 66* * * rules for the prevention of collisions between aircraft, and between aircraft and land or water vehicles.”

This act, passed in 1938, is, in principle, an exact parallel to the procedure proposed by the present bill.

There were questions asked yesterday as to the original form of the bill, as prepared in the Treasury Department, prior to the conference held at the Bureau of the Budget on January 18 in an effort to resolve the problems of the impact of the legislation on various Government departments. There was, I think, created an impression that the original bill was restricted to promulgating the 1948 Convention and that such restriction was eliminated on the representations of other Government departments. Any such inference is very much in error.

I attended that session, which, as I said earlier, was my only recent contact with the matter until these hearings. What was, in fact, stricken out on January 18, 1951, from the draft was something quite different. The stricken language comprised these words, "drafted in consultation with and accepted by other maritime nations." Had these words remained in the bill, then the authority of the President to proclaim any regulations whatever would be conditioned upon the regulations being in the quoted language, "drafted in consultation with and accepted by other maritime nations." This language, if it remained in the bill, could involve extensive litigation, since their legality would be premised on compliance with this condition as to whether the regulations were authorized.

To illustrate the issues which could arise: Do the words "accepted by other maritime nations" include every maritime nation? What would be the situation if some one small country, which could be said to be a maritime nation, failed to adopt the regulations, although the overwhelming majority of maritime countries had done so? The retention of these words would have made the bill a fruitful source of litigation when one interest wished to avoid the burden of noncompliance with a certain rule. This restriction was, from the viewpoint of avoiding litigation and providing the certainty so essential in collision rules, very wisely, in my view, omitted from the draft which is now H. R. 3670.

What I have said summarizes the considerations, particularly the expression of congressional intent as set forth in the 1938 Civil Aeronautics Board Act, which led the Navy Department representatives to view that the procedure of this bill is not only effective, is supported by the precedent, but is in full accord with congressional procedures for dealing with the technical regulations, which are promulgated by many administrative bodies, particularly in view of the Administrative Procedure Act requirements which recognize that such regulations will be issued.

Now I refer to one specific factor, which made the structure of H. R. 3670 particularly advantageous in coping with potential Navy Department problems. This is a matter of very substantial importance. The short of the matter is that, if the present bill is amended

to limit the authority to prescribe only the Convention regulations of 1948, then a supplemental section in the bill is imperative to enable the Navy Department to meet potential emergency situations. Such an amendment was not previously suggested, for, if there were no restriction on the power to issue regulations except those of the Administrative Procedure Act, then this problem could be met. administratively.

This Navy Department problem lies in the fact that the World War II practice of "black-out" or not exhibiting lights or sounding signals has no authorization in the International Rules. Those rules require the exhibition of lights. The Secretary of the Navy's power to prescribe black-out in World War II was rested on dubious provisions of the War Powers Act. However, since the vessels of the Allied Nations in World War II operated under universal black-out orders, the problem, as a practical matter, arose only when a blacked-out American or Allied vessel was in collision with a lighted neutral. The lighted neutral was in compliance with the International Rules. The blacked-out vessel was in violation of the statute and thus at fault. The legal effect of this situation is illustrated by Watts v. U. S. (123 Fed. 105). This case, which arose in the Spanish-American War, involved a collision off Fire Island between the blacked-out United States cruiser Columbia and the British steamship Foscolia. The Foscolia was properly lighted. The Navy cruiser was held solely at fault because of the absence of any statute authorizing the suspension of lights on the warship. That situation prevails today under the International Rules.

If there should by chance develop a situation where American vessels were blacked out and there were a large number of vessels of neutral countries exhibiting lights in strict compliance with the International Rules, then the United States would experience a heavy burden in collision litigation by reason of compliance with black-out orders.

To avoid this potential litigation issue, the removal from this bill of any right to issue supplemental regulations under the International Rules would necessitate the addition of a section to this bill, which would give legal sanction to black-out or orders to refrain from sounding signals, and so forth, under the International Rules. Such section would read as follows:

SEC. 5. That during time of war, combatant activities, or any warlike operations, whether there be a declaration of war or not, the exhibition of any light or sounding of any signal, required by statute, on board a public vessel of the United States, or a vessel documented under the laws of the United States or chartered to or operated for the account of the United States, may be suspended whenever the Secretary of the Navy or his designee shall issue an order precluding, on board such vessels, in whole or in part under specified conditions or in specified localities, the exhibition of lights or sounding of signals.

Accordingly, if this bill is restricted to promulgating the 1948 Convention, there is urgently recommended the enactment of this additional section, to avoid imposing on the United States in collision litigation, the burden of having its vessels held legally at fault in the event of a collision with a lighted neutral ship or one complying with the International Rules.

To conclude this statement, which is longer than I had expected to make, the matter before the committee is a choice between two procedures, which have been used at various times in putting into effect